Peyton, Ex Parte Jeffrey

Texas Supreme Court June 21, 2016

Opinion

ELECTRONIC RECORD

COA # 02-16-00029-CR OFFENSE: 10.02

STYLE: Ex parte Jeffrey Peyton v. COUNTY: Wichita COA DISPOSITION: REVREM TRIAL COURT: 30th District Court

DATE: 05/05/16 Publish: NO TC CASE #: 56208-A

IN THE COURT OF CRIMINAL APPEALS

STYLE: Ex parte Jeffrey Peyton v. CCA #: __________________________ Petition CCA Disposition: ___________________ FOR DISCRETIONARY REVIEW IN CCA IS: DATE: ____________________________ ______________________________________ JUDGE: ___________________________ DATE: _________________________________ SIGNED: ___________ PC: ________ JUDGE: ________________________________ PUBLISH: __________ DNP: _______

--------------------------- ______________________________ MOTION FOR REHEARING IN CCA IS: ______________________ JUDGE: __________________________________

ELECTRONIC RECORD 2nd Court of Appeals Docket Sheet Case Number: 02-16-00029-CR Date Filed: 01/28/2016 1:57PM Style: Criminal - Appellant Ex parte Jeffrey Peyton

Criminal - State of Texas Case Priority: Priority

Original Proceeding: No

Case Description: Habeas Corpus - Bail

Trial Court Information County Court Name Case # Judge Court Reporter Wichita 30th District Court 56208-A Hon. Robert P. 30th District Court, Court Brotherton Reporter, Events and Opinions

Event Date Stage Event Event Disposition Grouping Order Submis Description Type sion

06/08/2016 FILING CASE FORWARDED 06/08/2016 FILING MT STAY STA GRANT 02 MAND DISP 05/20/2016 FILING MT STAY STA 02 3:42PM MAND FLD 05/05/2016 FILING MEM OPINION REVREM ISSD Opinion Type Author

Original Justice Sue Memorandum Walker 05/03/2016 FILING SUBMITTED Brief

04/12/2016 FILING EBRIEF FLD STA 3:24PM NO 04/12/2016 FILING SUBMISSION/ Brief BRIEFS 04/12/2016 FILING AT ISSUE

03/23/2016 FILING EBRIEF FLD APP 4:34PM NO 03/10/2016 FILING MT EXT BRIEF APP GRANT 01 DISP 03/09/2016 FILING MT EXT BRIEF APP 01 4:31PM FLD 02/17/2016 FILING ECLK DT CLK 1:28PM RECORD FLD 02/08/2016 FILING RPT RECORD RPT 3:45PM FLD 01/28/2016 FILING NOA FLD/COA APP 4:20PM

Report Prepared By: KBrown, on 6/8/2016 2:32:55 PM 1 of 1 COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO. 02-16-00029-CR

Ex parte Jeffrey Peyton § From 30th District Court

§ of Wichita County (56208-A)

§ May 5, 2016

§ Opinion by Justice Walker

§ (nfp)

JUDGMENT

This court has considered the record on appeal in this case and holds that

there was error in the trial court’s judgment. It is ordered that the judgment of the

trial court is reversed, and this case is remanded to the trial court to set a

reasonable bail; to determine what additional conditions, if any, should be

imposed; and to allow the State and Peyton to present any additional evidence or

argument that the trial court deems relevant to each of the factors discussed in

the opinion.

SECOND DISTRICT COURT OF APPEALS

By _/s/ Sue Walker____________________ Justice Sue Walker COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO. 02-16-00029-CR

EX PARTE JEFFREY PEYTON

----------

FROM THE 30TH DISTRICT COURT OF WICHITA COUNTY TRIAL COURT NO. 56208-A

----------

MEMORANDUM OPINION1

----------

I. INTRODUCTION

Applicant Jeffrey Peyton appeals from the trial court’s denial of his pretrial

application for writ of habeas corpus seeking a bail reduction. 2 Because we

1 See Tex. R. App. P. 47.4. 2 Because this is an appeal from the denial of an application for habeas corpus relief and not an appeal from an order setting bail or from the denial of a pretrial motion for bail reduction, we have jurisdiction over this appeal. See Ragston v. State, 424 S.W.3d 49, 50 (Tex. Crim. App. 2014); Ex parte Briscoe, No. 02-15-00223-CR, 2015 WL 5893470, at *4 (Tex. App.—Fort Worth Oct. 8, 2015, no pet.) (mem. op., not designated for publication); Vasquez v. State, Nos. conclude that the trial court abused its discretion by failing to reduce the bail

amount based on the proffered evidence, we reverse the trial court’s order and

remand to that court to set a reasonable bail.

II. FACTUAL AND PROCEDURAL BACKGROUND

On July 2, 2015, a magistrate determined that there was probable cause to

issue an arrest warrant for Peyton based on an affidavit sworn to by John E.

Laughlin, a peace officer of the City of Wichita Falls Police Department. See

Tex. Code Crim. Proc. Ann. art. 15.03(a) (West 2015). In the affidavit, Officer

Laughlin stated that he had probable cause to believe that on June 30, 2015,

Peyton committed the offense of “Criminal Solicitation – Capital Murder.” See

Tex. Penal Code Ann. § 15.03 (West 2011). Officer Laughlin further attested to

the following sequence of events:

 On June 26, 2015, a cooperating witness contacted the Wichita Falls Police Department about a possible murder for hire. Officer Laughlin met with the cooperating witness who explained that Peyton and his wife had asked him to find a person willing to “take out” their daughter’s boyfriend, Vincent Cole, for $300. The cooperating witness provided Officer Laughlin with recordings he had made of his conversations with Peyton and his wife. Officer Laughlin contacted Officer Karen Wade from the Organized Crime Unit to assist with the investigation.

 On June 29, 2015, the cooperating witness introduced Officer Wade to Peyton and his wife. Officer Wade recorded her conversation with Peyton and his wife, who stated that they were willing to pay to have their daughter’s boyfriend gone “permanently.” They arranged to meet with Officer Wade again the following day.

03-13-00717-CR, 03-13-00718-CR, 2014 WL 3732962, at *1 n.2 (Tex. App.— Austin July 25, 2014, no pet.) (mem. op., not designated for publication) (collecting cases).

2  Around 11:00 a.m. on June 30, 2015, the cooperating witness took Peyton’s wife to a bank at her request and direction and recorded the conversation that took place. Peyton’s wife intimated that she was getting money from the bank to complete a transaction with Officer Wade. While talking about Cole, Peyton’s wife stated, “I want him gone. Not out of town gone. I want him dead gone.” Peyton’s wife further stated that she and Peyton planned to take their daughter to a movie so that she would not be around “the day this happens.”

 Around 12:30 p.m. on June 30, 2015, Officer Wade contacted Peyton by phone and explained that it would cost more than $300 to have someone kill Cole. Peyton then offered to pay $500 to have Cole killed.

 Around 1:45 p.m. on June 30, 2015, Officer Wade met Peyton in a parking lot. During the recorded meeting, Peyton gave Officer Wade three $100 bills and promised to pay an additional $200 after Cole was killed. Peyton also provided Officer Wade with a photograph of Cole. Officer Wade offered Peyton an opportunity to back out of the transaction, but Peyton refused and indicated that he and his wife wanted to go through with the plan.

 On July 2, 2015, Officer Laughlin contacted Cole and explained the preceding events. Cole agreed to cooperate with the investigation, and a photograph was created that made it look like he had been shot to death.

 Later on July 2, 2015, Officer Wade contacted Peyton by phone and arranged to meet him. When they met a short time later, Officer Wade showed Peyton the staged photograph of Cole. Peyton then gave Officer Wade $200.

After Peyton’s arrest, bail was set at $1,000,000.3 Peyton filed an

application for writ of habeas corpus and argued that his bail was unlawfully

excessive. Peyton requested that the trial court “grant him a personal

recognizance bond or, in the alternative, set bail in a reasonable amount.”

3 As part of the conditions of bail, the magistrate ordered that Peyton “not make contact with the alleged victim, or any member of his family, nor cause any other person to make said contact.”

3 At the hearing on Peyton’s application for writ of habeas corpus, Peyton

testified that he is fifty-eight years old and has lived in Wichita Falls for the

majority of his life, including the past twenty-five years. Peyton does not have

family members who are still alive, other than his wife. Peyton served in the

United States Navy from 1974 to 1978 and received an honorable discharge. He

testified that he had never been convicted of a felony but admitted that he had

been arrested several times for public intoxication and one time on a warrant for

an unpaid ticket for no automobile insurance.

Peyton testified that he is unable to make bail while it is set at $1,000,000.

He explained that he is unable to work due to a disability and that he receives

veterans’ benefits and Social Security disability benefits totaling approximately

$1,240 each month. At the time he requested court-appointed counsel, he had

approximately $1,500 in the bank, owned a nonoperational vehicle worth

approximately $500, and owned furniture or jewelry worth approximately $500.

He does not own a house. Peyton testified that he has the ability to make bail if it

is set at $10,000 because he can sell his firearms. Peyton said that if he were

released, he would live with a friend at the French Quarter Apartments and that

he could obtain rides from friends to appear for any court dates. Peyton testified

that he is willing to comply with conditions of bail such as curfew, home

confinement, electronic monitoring, and drug testing and that he is willing to seek

court approval before leaving the state for any trips to the VA hospital in

4 Oklahoma City. Peyton said that he has every intention of fighting the charges

alleged.

In opposing any reduction in the bail amount, the State admitted into

evidence Officer Laughlin’s probable-cause affidavit, the relevant portions of

which are set forth above, and asked the trial court to take judicial notice of the

indictment. The State then rested.

The trial court denied Peyton’s application and continued bail in the

amount of $1,000,000.4 Peyton then filed this appeal, and we requested briefing.

See Tex. R. App. P. 31.1.

III. STANDARD OF REVIEW AND LAW ON BAIL

We review a trial court’s ruling on the setting of bail for an abuse of

discretion. See Tex. Code Crim. Proc. Ann. art. 17.15 (West 2015); Ex parte

Rubac, 611 S.W.2d 848, 850 (Tex. Crim. App. [Panel Op.] 1981). To determine

whether a trial court abused its discretion, we must decide whether the trial court

acted without reference to any guiding rules or principles; in other words, we

must decide whether the trial court’s action was arbitrary or unreasonable.

Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990). Merely

because a trial court may decide a matter within its discretion in a different

4 After the trial court announced its decision on the record, Peyton argued that his situation raised the same constitutional concerns addressed in Judge Cochran’s concurring opinion to the refusal of the petition for discretionary review in Ex parte Benefield. 403 S.W.3d 240 (Tex. Crim. App. 2013) (Cochran, J., concurring). The trial court stated that it was familiar with that case but did not change its ruling.

5 manner than an appellate court would in a similar circumstance does not

demonstrate that an abuse of discretion has occurred. Id.

The primary purpose of an appearance bond is to secure the presence of

the defendant at trial on the offense charged. Ex parte Vasquez, 558 S.W.2d 477, 479 (Tex. Crim. App. 1977). Federal and state law both prohibit the

imposition of excessive bail, which is bail that is “set in an amount greater than is

reasonably necessary to satisfy the government’s legitimate interests.” Ex parte

Beard, 92 S.W.3d 566, 573 (Tex. App.—Austin 2002, pet. ref’d); see U.S. Const.

amend. VIII; Tex. Const. art. I, § 13. The defendant bears the burden of proving

that bail, as set, is excessive. Rubac, 611 S.W.2d at 849. Bail may be deemed

oppressive when the trial court sets it at an amount “for the express purpose of

forcing [a defendant] to remain incarcerated.” Ex parte Harris, 733 S.W.2d 712, 714 (Tex. App.—Austin 1987, no pet.).

Statutory and common-law factors guide a trial court’s determination of

appropriate bail. The code of criminal procedure provides,

The amount of bail to be required in any case is to be regulated by the court, judge, magistrate[,] or officer taking the bail; they are to be governed in the exercise of this discretion by the Constitution and by the following rules:

1. The bail shall be sufficiently high to give reasonable assurance that the undertaking will be complied with.

2. The power to require bail is not to be so used as to make it an instrument of oppression.

3. The nature of the offense and the circumstances under which it was committed are to be considered.

6 4. The ability to make bail is to be regarded, and proof may be taken upon this point.

5. The future safety of a victim of the alleged offense and the community shall be considered.

Tex. Code Crim. Proc. Ann. art. 17.15. In addition to these statutory factors, the

court of criminal appeals has instructed courts to also consider the accused’s

work record, the accused’s family ties, the accused’s length of residency, the

accused’s prior criminal record, the accused’s conformity with the conditions of

any previous bond, the existence of any outstanding bonds, and aggravating

circumstances alleged to have been involved in the charged offense. Rubac,

611 S.W.2d at 849–50.

IV. TRIAL COURT ABUSED ITS DISCRETION BY REFUSING TO REDUCE BAIL

We recognize that any review of a bail determination is, by nature,

imprecise, but we are guided by article 17.15. See Ex parte Pemberton, 577 S.W.2d 266, 267 (Tex. Crim. App. [Panel Op.] 1979).

A. Statutory Factors

1. Assure Appearance Without Oppression

(First, Second, and Fourth Factors)

The primary purpose in setting a bail amount and the first listed factor in

article 17.15 is the reasonable assurance that the applicant will appear for court.

See Tex. Code Crim. Proc. Ann. art. 17.15(1); Vasquez, 558 S.W.2d at 479.

Peyton testified that he has lived in Wichita Falls for the majority of his life,

7 including the past twenty-five years. Peyton said that if he were released, he

would live with a friend at an apartment complex in Wichita Falls and would be

able to obtain transportation to any court appearances. Peyton testified that he

would comply with any conditions of bail that might be imposed and that he

would seek court approval before leaving the state for any trips to the VA hospital

in Oklahoma City. The State presented no evidence that Peyton is a flight risk or

that he has outstanding bonds or warrants. Based on these facts, the trial court

had reasonable assurance that Peyton would appear for court; thus, this factor

indicates that a reduction in bail is appropriate. Cf. In re Durst, 148 S.W.3d 496, 501 (Tex. App.—Houston [14th Dist.] 2004, no pet.) (op. on reh’g) (considering

conditions imposed by trial court to ensure defendant’s appearance and reducing

bail to $150,000 for each of three third-degree felonies charged).

With regard to the second factor—that bail not be oppressive, the record

demonstrates that Peyton is disabled, has minimal assets and income, and does

not have the ability to satisfy a $1,000,000 bail bond. See Tex. Code Crim. Proc.

Ann. art. 17.15(2). This factor demonstrates that bail in the amount set is

oppressive. See Ex parte Bogia, 56 S.W.3d 835, 840 (Tex. App.—Houston [1st

Dist.] 2001, no pet.) (holding that $360,000 bail for second-degree felony of theft

was oppressive because it was not justified by any unusual circumstances).

Similar to the second factor, the fourth factor mandates consideration of an

applicant’s ability to make bail, which is relevant but not controlling. See Tex.

Code Crim. Proc. Ann. art. 17.15(4); Ex parte Sabur-Smith, 73 S.W.3d 436, 440

8 (Tex. App.—Houston [1st Dist.] 2002, no pet.). Bail set in an amount that cannot

be satisfied has the potential to displace the presumption of innocence. See

Bogia, 56 S.W.3d at 840. The record is clear that Peyton cannot satisfy a

$1,000,000 bail bond and that he does not have any family to assist him in

making bond. Peyton does not own a house or an operational vehicle and is

disabled and therefore unable to work; his monthly income consists of $367 in

veterans’ benefits and an unspecified amount in Social Security disability

benefits. Peyton testified that he could satisfy a bail of $10,000 by selling some

guns that he owns. This factor weighs in favor of reduced bail. See 41 George

E. Dix & John M. Schmolesky, Texas Practice Series: Criminal Practice &

Procedure § 21:27 (3d ed. 2011) (stating that “the less resources he has, the

more likely it will be that a lower amount will create a sufficient incentive to

appear”).

2. Nature of the Offense (Third Factor)

With regard to the third factor—the nature of the offense and the

circumstances under which it was committed, the record includes the probable-

cause affidavit, which was admitted into evidence by the State at the hearing.

See Tex. Code Crim. Proc. Ann. art. 17.15(3). The facts in the probable-cause

affidavit are disturbing and allege that Peyton was involved in soliciting someone

to murder his daughter’s boyfriend. If convicted of criminal solicitation to commit

capital murder, which is a first-degree felony, Peyton faces a punishment range

of five to ninety-nine years’ confinement and a possible fine not to exceed

9 $10,000. See Tex. Penal Code Ann. § 12.32 (West 2011), § 15.03(d)(1). The

severity of the offense justifies a high bail amount.

In other cases involving solicitation of capital murder, courts have

approved bail in amounts ranging from $20,000 to $750,000—with the higher end

of the range used for multiple charges of solicitation of capital murder. See, e.g.,

Ex parte Parish, 598 S.W.2d 872, 873 (Tex. Crim. App. [Panel Op.] 1980)

(reducing bail from $100,000 to $20,000 on solicitation of capital murder charge);

Cooley v. State, 232 S.W.3d 228, 238 (Tex. App.—Houston [1st Dist.] 2007, no

pet.) (upholding total bail of $750,000 on three solicitation of capital murder

charges); Ex parte Chachere, No. 03-01-00404-CR, 2002 WL 99642, at *4 (Tex.

App.—Austin Jan. 25, 2002, no pet.) (not designated for publication) (reducing

bail from $700,000 to $250,000 on solicitation of capital murder charge); Perry v.

State, No. 14-99-01161-CR, 1999 WL 1267196, at *3 (Tex. App.—Houston [14th

Dist.] Dec. 30, 1999, no pet.) (not designated for publication) (upholding

$100,000 bail on solicitation of capital murder charge); Ex parte Welch, 729 S.W.2d 306, 310 (Tex. App.—Dallas 1987, no pet.) (upholding total bail of

$300,000 on two pending solicitation of capital murder charges). But see Ex

parte Pulte, No. 02-03-00202-CR, 2003 WL 22674734, at *2 (Tex. App.—Fort

Worth Nov. 13, 2003, no pet.) (not designated for publication) (holding

$1,000,000 bail not excessive for solicitation of murder when record showed that

defendant possessed assets, defendant had failed to offer evidence of bond he

could make, and defendant had committed offense for which bail was sought

10 while on bond for related offense). However, “‘[c]ase law is of relatively little

value in addressing the ultimate question of the appropriate amount of bail in a

particular case’ because . . . the ‘cases are so individualized that generalization

from results reached in others is difficult.’” Beard, 92 S.W.3d at 571 (citing 41

George E. Dix. & Robert O. Dawson, Texas Practice: Criminal Practice and

Procedure § 16.51 (2d ed. 2001)). In any event, while the nature-of-the-offense

factor justifies setting a significant bail amount, $1,000,000 exceeds the upper

end of the range of approved amounts for bail in cases involving solicitation of

capital murder.

3. Safety (Fifth Factor)

The fifth factor we consider is the future safety of the community. See Tex.

Code Crim. Proc. Ann. art. 17.15(5). Peyton has no prior felony convictions.

Peyton’s bail contains the condition that Peyton “not make contact with the

alleged victim, or any member of his family, nor cause any other person to make

said contact.” This factor, while difficult to analyze, reflects that the high amount

of Peyton’s bail is not sufficiently related to community safety. See Briscoe, 2015

WL 5893470, at *4 (citing 41 Dix & Schmolesky, supra, § 21:29).

B. Other Considerations

Finally, we look to other relevant considerations. Peyton, who is fifty-eight

years old, has lived in Wichita County the majority of his life, including the last

twenty-five years. Although most of his family is now deceased, he still has his

wife and friends in Wichita Falls. Peyton is not able to work due to a disability.

11 Peyton’s only prior arrests were for public intoxication and a warrant for failing to

pay a ticket for no automobile insurance. The record does not contain evidence

regarding any aggravating circumstances alleged to have been involved in the

charged offense. These considerations demonstrate that although Peyton was

arrested for a first-degree felony, he has “an incentive to remain despite the

possibility of conviction and sentence,” and he testified that he has every

intention of fighting the charges alleged. See id. (citing 41 Dix & Schmolesky,

supra, § 21:30).

C. Outcome

Although the nature of the offense and the circumstances surrounding it

are severe, the other factors to be considered in setting reasonable bail establish

that the $1,000,000 bail set here is excessive because it is set in an amount

greater than necessary to ensure Peyton’s appearance. Because Peyton has

carried his burden of proving that bail in the amount of $1,000,000 is excessive,

we hold that the trial court abused its discretion by failing to reduce the bail

amount based on the evidence before it. See Tex. Code Crim. Proc. Ann. art.

11.24 (West 2015) (“If the proof sustains the petition, it will entitle the party to . . .

have the bail reduced.”); Parish, 598 S.W.2d at 873 (reducing bail from $100,000

to $20,000 for solicitation of capital murder); see also Briscoe, 2015 WL

5893470, at *4 (holding that $1,000,000 bail in injury-to-a-child case was

excessive and that trial court abused its discretion by failing to reduce that

amount).

12 V. CONCLUSION

We therefore reverse the trial court’s order denying habeas relief and

remand this case to the trial court to set a reasonable bail; to determine what

additional conditions, if any, should be imposed; and to allow the State and

Peyton to present any additional evidence or argument that the trial court deems

relevant to each of the factors discussed above. See Tex. R. App. P. 31.3; Ex

parte Brooks, 376 S.W.3d 222, 224 (Tex. App.—Fort Worth 2012, pet. ref’d.).

/s/ Sue Walker SUE WALKER JUSTICE

PANEL: WALKER, MEIER, and GABRIEL, JJ.

DO NOT PUBLISH Tex. R. App. P. 47.2(b)

DELIVERED: May 5, 2016

13 1

1 R E P O R T E R'S R E C O R D

2 VOLUME 1 OF 3 FILED IN 3 COURT OF APPEALS NO. 02-16-00029-CR 2nd COURT OF APPEALS FORT WORTH, TEXAS 4 CAUSE NO. 56,208-A 2/8/2016 3:45:44 PM DEBRA SPISAK 5 THE STATE OF TEXAS * IN THE 30TH DISTRICT Clerk COURT * 6 VS. * * 7 JEFFREY BRYAN PEYTON * OF WICHITA COUNTY, TEXAS

10 _______________________________________

11 MASTER INDEX _______________________________________ 12

18 On the 22nd day of January, 2016, the

19 above-entitled cause came on for trial in the

20 above-entitled and numbered Court before the

21 Honorable Robert P. Brotherton, judge presiding, held

22 in Wichita Falls, Wichita County, Texas.

23 Proceedings reported by computerized

24 Stenotype machine; record produced by

25 computer-assisted transcription.

LESLIE C. RYAN-HASH, CSR OFFICIAL COURT REPORTER (940) 766-8180 2

1 A P P E A R A N C E S:

3 Mr. John Gillespie (SBOT #24010053) Wichita County District Attorney's Office 4 Wichita County Courthouse 900 7th Street 5 Wichita Falls, Texas 76301 (940) 766-8113 6 Attorney for the State

8 Mr. Brennon Brady (SBOT #24038120) Wichita County Public Defender's Office 9 600 Scott Street, Suite 204 Wichita Falls, Texas 76301 10 (940) 766-8199 Attorney for the Defendant 11

LESLIE C. RYAN-HASH, CSR OFFICIAL COURT REPORTER (940) 766-8180 3

1 M A S T E R I N D E X

2 PAGE VOL

3 Proceedings................................ 6 2

4 Defendant announces ready.................. 6 2

5 State announces ready...................... 6 2

6 DEFENDANT'S WITNESS DIRECT CROSS VOL

7 Jeffrey Peyton 7 2

8 Defendant rests............................ 12 2

9 State rests................................ 12 2

10 Court's Ruling............................. 13 2

11 Hearing concluded.......................... 14 2

12 Reporter's Certificate..................... 15 2

LESLIE C. RYAN-HASH, CSR OFFICIAL COURT REPORTER (940) 766-8180 4

1 ALPHABETICAL INDEX OF WITNESSES

3 WITNESSES DIRECT CROSS VOL

4 Peyton, Jeffrey 7 2

LESLIE C. RYAN-HASH, CSR OFFICIAL COURT REPORTER (940) 766-8180 5

1 M A S T E R E X H I B I T S

2 STATE'S EXHIBITS

3 NO. DESCRIPTION OFFER ADMIT VOL

4 1 Warrant of Arrest and Detention 12 12 2

LESLIE C. RYAN-HASH, CSR OFFICIAL COURT REPORTER (940) 766-8180 6

1 THE STATE OF TEXAS )

2 COUNTY OF WICHITA )

3 I, Leslie C. Ryan-Hash, Official Court

4 Reporter in and for the 30th District Court of

5 Wichita County, State of Texas, do hereby certify

6 that the above and foregoing contains a true and

7 correct transcription of all portions of evidence and

8 other proceedings requested in writing by counsel for

9 the parties to be included in this volume of the

10 Reporter's Record, in the above-styled and numbered

11 cause, all of which occurred in open court or in

12 chambers and were reported by me.

13 I further certify that this Reporter's

14 Record of the proceedings truly and correctly

15 reflects the exhibits, if any, admitted by the

16 respective parties.

17 I further certify that the total cost

18 for the preparation of this Reporter's Record is

19 $297.50 and will be paid by Wichita County.

LESLIE C. RYAN-HASH, CSR OFFICIAL COURT REPORTER (940) 766-8180 7

1 WITNESS MY OFFICIAL HAND this the 9th

2 day of February, 2016.

5 /s/ Leslie C. Ryan-Hash 6 Leslie C. Ryan-Hash, CSR Official Court Reporter 7 Cert. No. 5164/Expires 12/31/17 900 7th Street, Room 360 8 Wichita County Courthouse Wichita Falls, TX 76301 9 (940)766-8180/(940)766-8253 [email protected] 10

LESLIE C. RYAN-HASH, CSR OFFICIAL COURT REPORTER (940) 766-8180 1

1 R E P O R T E R'S R E C O R D

2 VOLUME 2 OF 3 FILED IN 3 COURT OF APPEALS NO. 02-16-00029-CR 2nd COURT OF APPEALS FORT WORTH, TEXAS 4 CAUSE NO. 56,208-A 2/8/2016 3:45:44 PM DEBRA SPISAK 5 THE STATE OF TEXAS * IN THE 30TH DISTRICT Clerk COURT * 6 VS. * * 7 JEFFREY BRYAN PEYTON * OF WICHITA COUNTY, TEXAS

10 _______________________________________

11 HABEAS CORPUS _______________________________________ 12

18 On the 22nd day of January, 2016, the

19 above-entitled cause came on for trial in the

20 above-entitled and numbered Court before the

21 Honorable Robert P. Brotherton, judge presiding, held

22 in Wichita Falls, Wichita County, Texas.

23 Proceedings reported by computerized

24 Stenotype machine; record produced by

25 computer-assisted transcription.

LESLIE C. RYAN-HASH, CSR OFFICIAL COURT REPORTER (940) 766-8180 2

1 A P P E A R A N C E S:

3 Mr. John Gillespie (SBOT #24010053) Wichita County District Attorney's Office 4 Wichita County Courthouse 900 7th Street 5 Wichita Falls, Texas 76301 (940) 766-8113 6 Attorney for the State

8 Mr. Brennon Brady (SBOT #24038120) Wichita County Public Defender's Office 9 600 Scott Street, Suite 204 Wichita Falls, Texas 76301 10 (940) 766-8199 Attorney for the Defendant 11

LESLIE C. RYAN-HASH, CSR OFFICIAL COURT REPORTER (940) 766-8180 3

1 I N D E X

2 PAGE VOL

3 Proceedings................................ 6 2

4 Defendant announces ready.................. 6 2

5 State announces ready...................... 6 2

6 DEFENDANT'S WITNESS DIRECT CROSS VOL

7 Jeffrey Peyton 7 7 2

8 Defendant rests............................ 12 2

9 State rests................................ 12 2

10 Court's Ruling............................. 13 2

11 Hearing concluded.......................... 14 2

12 Reporter's Certificate..................... 15 2

LESLIE C. RYAN-HASH, CSR OFFICIAL COURT REPORTER (940) 766-8180 4

1 ALPHABETICAL INDEX OF WITNESSES

3 WITNESSES DIRECT CROSS VOL

4 Peyton, Jeffrey 7 7 2

LESLIE C. RYAN-HASH, CSR OFFICIAL COURT REPORTER (940) 766-8180 5

1 E X H I B I T S

2 STATE'S EXHIBITS

3 NO. DESCRIPTION OFFER ADMIT VOL

4 1 Warrant of Arrest and Detention 12 12 2

LESLIE C. RYAN-HASH, CSR OFFICIAL COURT REPORTER (940) 766-8180 6

1 P R O C E E D I N G S

2 (Open court, Defendant present.)

3 (State's Exhibit No. 1 marked.)

4 THE COURT: This is Cause No. 56,208-A,

5 The State of Texas vs. Jeff Peyton. The matter set

6 for hearing is the Defendant's Application for Writ

7 of Habeas Corpus seeking bail reduction.

8 Is the defense ready?

9 MR. BRADY: Ready, Your Honor.

10 THE COURT: Is the State ready?

11 MR. GILLESPIE: State's ready, Your

12 Honor.

13 THE COURT: Are you Jeff Peyton?

14 THE WITNESS: Yes, sir.

15 THE COURT: All right. Mr. Brady, you

16 may proceed.

17 MR. BRADY: Thank you, Your Honor. I'd

18 just like for the record to reflect that the

19 application misstates the bail amount. I believe

20 it's just a typo. The bail in this case, I believe,

21 is set at $1 million. I'd point that out for the

22 Court and the record.

23 THE COURT: That's correct.

24 MR. BRADY: Judge, we'll call Jeff

25 Peyton as our witness.

LESLIE C. RYAN-HASH, CSR OFFICIAL COURT REPORTER (940) 766-8180 7

1 THE COURT: All right.

2 (The witness was sworn by the Court.)

3 THE WITNESS: Yes, Your Honor.

4 THE COURT: Okay. Go ahead.

5 JEFF PEYTON,

6 having been first duly sworn, testified as follows:

7 DIRECT EXAMINATION

8 BY MR. BRADY:

9 Q. If you could speak up for the court

10 reporter, she's taking down everything and so the

11 Judge can hear you.

12 A. Okay.

13 Q. Will you introduce yourself to the Judge.

14 A. Yes, sir. I'm Jeff Peyton, Your Honor.

15 Q. And how old are you, Jeff?

16 A. I'm 58 years old.

17 Q. And where have you lived the majority of

18 your life?

19 A. Wichita Falls, Texas.

20 Q. And it's my understanding that you're a

21 veteran; is that correct?

22 A. Yes, sir.

23 Q. And what branch of the service did you

24 serve?

25 A. Navy.

LESLIE C. RYAN-HASH, CSR OFFICIAL COURT REPORTER (940) 766-8180 8

1 Q. And how many years were you in the Navy and

2 what years were those?

3 A. Four years from 1974 to 1978.

4 Q. And were you honorably discharged?

5 A. Yes, sir.

6 Q. Have you ever been convicted of a felony in

7 your life?

8 A. No, sir.

9 Q. Aside from traffic tickets, have you ever

10 been arrested?

11 A. Yes, sir.

12 Q. Okay. What were you arrested for?

13 A. Several times for public intox and one time

14 for warrant for no insurance ticket. I think it was

15 1995.

16 Q. So those were Class C tickets type

17 situations, no misdemeanor Class Bs and above?

18 A. No, sir.

19 Q. Okay. And how long have you actually lived

20 in Wichita Falls, Texas?

21 A. I've lived here from 1978 to 1984; moved to

22 California for two and a half years. From there I

23 moved to Hawaii for five years and then I came back

24 here. I've been back here twenty-five years.

25 Q. And have you lived in the City of Wichita

LESLIE C. RYAN-HASH, CSR OFFICIAL COURT REPORTER (940) 766-8180 9

1 Falls?

2 A. Yes.

3 Q. And Wichita County?

4 A. Yes, sir.

5 Q. Your current bail is set at $1 million. Do

6 you currently have the means to make that bail?

7 A. No, sir.

8 Q. What bail amount do you have the ability to

9 make at this time?

10 A. $10,000.

11 Q. Is that based on the assets that you have

12 and you believe you can sell?

13 A. Yes, sir.

14 Q. Okay. And what are those assets?

15 A. I have some guns I could sell to make bond.

16 Q. And do you have a vehicle that's operational

17 at this time?

18 A. No, sir.

19 Q. Okay. How are you planning on getting to

20 court?

21 A. Rides from friends.

22 Q. And where would you live if you were

23 released?

24 A. French Quarter Apartments with a friend of

25 mine.

LESLIE C. RYAN-HASH, CSR OFFICIAL COURT REPORTER (940) 766-8180 10

1 Q. And has he told you that he was willing to

2 let you stay with him?

3 A. Yes, sir.

4 Q. And what do you do for income when you're

5 out?

6 A. I get a small check from the VA, 367 a

7 month, and I've got Social Security disability.

8 Q. And so you're unable to work?

9 A. Yes, sir.

10 Q. Have you been able to support yourself over

11 the past twenty-five years or so, or however long

12 you've been on the disability, with that?

13 A. Yes, sir.

14 Q. You're -- are you willing to comply with

15 conditions of bail such as curfew, home confinement,

16 electronic monitoring, and drug testing if you were

17 released?

18 A. Yes, sir.

19 Q. Do you have any intentions of leaving the

20 jurisdiction, flee on these charges?

21 A. No, sir. The only time I might have to

22 leave would be go to the VA hospital in Oklahoma

23 City.

24 Q. And you would be willing to get Court

25 approval prior to doing that?

LESLIE C. RYAN-HASH, CSR OFFICIAL COURT REPORTER (940) 766-8180 11

1 A. Yes, sir.

2 Q. Now, as far as family ties go, it's my

3 understanding that you don't have very many family

4 members around left, do you?

5 A. I don't have any family members left except

6 my wife.

7 Q. That's because they've passed away?

8 A. Yes, sir.

9 Q. Now, you understand you're looking at up to

10 life in prison. Does that -- does that fact make you

11 want to run and not face these charges?

12 A. No, sir.

13 Q. Do you have every intention of fighting

14 these charges?

15 A. Yes, sir.

16 Q. Would you like to be given an opportunity to

17 be free and prove to the Court that you're able to

18 comply with conditions of bond and show up for

19 pretrial hearings and that sort of thing?

20 A. Yes, sir.

21 Q. Now, do you have any kind of mental health

22 issues that you need to work on or get addressed out

23 there?

24 A. Not at the present time.

25 Q. Okay.

LESLIE C. RYAN-HASH, CSR OFFICIAL COURT REPORTER (940) 766-8180 12

1 MR. BRADY: Judge, I'll pass the

2 witness at this time.

3 THE COURT: Mr. Gillespie.

4 MR. GILLESPIE: I have no questions,

5 Your Honor.

6 THE COURT: Okay. Next witness?

7 MR. BRADY: This is the only witness I

8 have, Your Honor. Defense will rest.

9 THE COURT: All right. Mr. Gillespie?

10 MR. GILLESPIE: I'd offer State's 1,

11 the probable cause affidavit in this case.

12 MR. BRADY: No objection to State's 1,

13 Your Honor.

14 THE COURT: It's admitted.

15 (State's Exhibit No. 1 admitted.)

16 MR. GILLESPIE: And I also ask the

17 Court to take notice of the indictment in this case,

18 judicial notice of it.

19 THE COURT: Any objection?

20 MR. BRADY: No objection, Judge.

21 THE COURT: Court will take judicial

22 notice of the indictment.

23 MR. GILLESPIE: And the State would

24 rest.

25 THE COURT: All right. Let's go off

LESLIE C. RYAN-HASH, CSR OFFICIAL COURT REPORTER (940) 766-8180 13

1 the record.

2 (Off the record.)

3 (On the record.)

4 THE COURT: All right. We'll go back

5 on the record. Mr. Peyton, Mr. Brady, the motion is

6 denied.

7 MR. BRADY: Thank you, Your Honor.

8 Judge, I might just put on the record

9 that I have a case here that I'd like to point out.

10 It's a concurring opinion. But the Court of Criminal

11 Appeals kinda gave me a hard time about not raising

12 it, and it's Ex Parte Benefield, 403 S.W.3d.

13 THE COURT: I'm familiar with that

14 case.

15 MR. BRADY: Huh?

16 THE COURT: I said I'm familiar with

17 that case.

18 MR. BRADY: I know, Judge. Well, the

19 Court said that I didn't raise some issues at the --

20 because the petition does not clearly raise these

21 difficult issues, I'd just say the current situation

22 of Mr. Peyton raises the constitutional concerns that

23 are pointed out by the concurring opinion in that

24 case.

25 THE COURT: All right. So noted, Mr.

LESLIE C. RYAN-HASH, CSR OFFICIAL COURT REPORTER (940) 766-8180 14

1 Brady. Thank you.

2 MR. BRADY: Thank you, Your Honor.

3 I'll prepare you an order, Judge.

4 THE COURT: Okay.

5 (Hearing concluded.)

LESLIE C. RYAN-HASH, CSR OFFICIAL COURT REPORTER (940) 766-8180 15

1 THE STATE OF TEXAS )

2 COUNTY OF WICHITA )

3 I, Leslie C. Ryan-Hash, Official Court

4 Reporter in and for the 30th District Court of

5 Wichita County, State of Texas, do hereby certify

6 that the above and foregoing contains a true and

7 correct transcription of all portions of evidence and

8 other proceedings requested in writing by counsel for

9 the parties to be included in this volume of the

10 Reporter's Record, in the above-styled and numbered

11 cause, all of which occurred in open court or in

12 chambers and were reported by me.

13 I further certify that this Reporter's

14 Record of the proceedings truly and correctly

15 reflects the exhibits, if any, admitted by the

16 respective parties.

17 I further certify that the total cost

18 for the preparation of this Reporter's Record is

19 $297.50 and will be paid by Wichita County.

LESLIE C. RYAN-HASH, CSR OFFICIAL COURT REPORTER (940) 766-8180 16

1 WITNESS MY OFFICIAL HAND this the 9th

2 day of February, 2016.

LESLIE C. RYAN-HASH, CSR OFFICIAL COURT REPORTER (940) 766-8180 1

1 R E P O R T E R'S R E C O R D

2 VOLUME 3 OF 3 FILED IN 3 COURT OF APPEALS NO. 02-16-00029-CR 2nd COURT OF APPEALS FORT WORTH, TEXAS 4 CAUSE NO. 56,208-A 2/8/2016 3:45:44 PM DEBRA SPISAK 5 THE STATE OF TEXAS * IN THE 30TH DISTRICT Clerk COURT * 6 VS. * * 7 JEFFREY BRYAN PEYTON * OF WICHITA COUNTY, TEXAS

10 _______________________________________

11 EXHIBIT INDEX _______________________________________ 12

18 On the 22nd day of January, 2016, the

19 above-entitled cause came on for trial in the

20 above-entitled and numbered Court before the

21 Honorable Robert P. Brotherton, judge presiding, held

22 in Wichita Falls, Wichita County, Texas.

23 Proceedings reported by computerized

24 Stenotype machine; record produced by

25 computer-assisted transcription.

LESLIE C. RYAN-HASH, CSR OFFICIAL COURT REPORTER (940) 766-8180 2

1 A P P E A R A N C E S:

3 Mr. John Gillespie (SBOT #24010053) Wichita County District Attorney's Office 4 Wichita County Courthouse 900 7th Street 5 Wichita Falls, Texas 76301 (940) 766-8113 6 Attorney for the State

8 Mr. Brennon Brady (SBOT #24038120) Wichita County Public Defender's Office 9 600 Scott Street, Suite 204 Wichita Falls, Texas 76301 10 (940) 766-8199 Attorney for the Defendant 11

LESLIE C. RYAN-HASH, CSR OFFICIAL COURT REPORTER (940) 766-8180 3

1 M A S T E R E X H I B I T S

2 STATE'S EXHIBITS

3 NO. DESCRIPTION OFFER ADMIT VOL

4 1 Warrant of Arrest and Detention 7 7 2

LESLIE C. RYAN-HASH, CSR OFFICIAL COURT REPORTER (940) 766-8180 4

1 THE STATE OF TEXAS )

2 COUNTY OF WICHITA )

3 I, Leslie C. Ryan-Hash, Official Court

4 Reporter in and for the 30th District Court of

5 Wichita County, State of Texas, do hereby certify

6 that the foregoing exhibits constitute true and

7 complete duplicates of the original exhibits,

8 excluding physical evidence admitted, tendered in an

9 offer of proof or offered into evidence during the

10 trial in the above entitled and numbered cause as set

11 out herein before the Honorable Robert P. Brotherton,

12 Judge of the 30th District Court of Wichita County,

13 January 22, 2016.

14 I FURTHER CERTIFY that the total cost

15 for the preparation of this Reporter's Record is

16 $297.50 and will be paid by Wichita County.

17 WITNESS MY OFFICIAL HAND this the 9th

18 day of February, 2016.

20 \S\ LESLIE C. RYAN-HASH 21 Leslie C. Ryan-Hash, CSR Official Court Reporter 22 Cert. No. 5164/Expires 12/31/17 900 7th Street, Room 360 23 Wichita Falls, TX 76301 (940)766-8180/(940)766-8253 24 [email protected]

LESLIE C. RYAN-HASH, CSR OFFICIAL COURT REPORTER (940) 766-8180 STATE'S EXHIBIT NO. 1 copy WARRANT OF ARREST AND DETENTION WFPD CASE # 15-061632 WARRANT NUMBER 01-135098 WICHITA COUNTY, TEXAS BOND AMOUNT $ ( ^o^ODO, o In the Name of the State of Texas, To any Sheriff, Constable or Peace Officer of the State of Texas, Greetings: YOU ARE HEREBY COMMANDED TO TAKE INSTANTER THE BODY OF:

Jeffrey Bryan Peyton

Hereinafter referred to as the suspect, and bring the said suspect before a Magistrate in and for Wichita County, Texas, instanter, then and there to answer the State of Texas for an offense against the laws of said State, to-wit:

Criminal Solicitation - Capital Murder

of which FELONY offense the said suspect is accused by the written affidavit, under oath of

John E. Laughlin / WFPD #571

filed before me anterior to the issuance of this warrant. Herein fail not and due return make hereof at the place hereinafter named.

Witness my official signature this the 2nd Day of July,2015.

justicj^5f^epeace7toS^ati o WICHITA COUNTY, TEXAS *************************************^Q|Vjj^j5TRAj{Vg data************************************* State of Texas vs. Jeffrey Bryan Peyton Race: W Sex: M DOB: 05/21/1957 Ht: 508 Wt: 170 Hair: Brn Eyes: Blu DL: TX/15508343 Address: 207 Carolina Apt. B, Wichita Falls, TX 76306 Complainant: Vincent Wade Cole Date of Offense: 06/30/2015 Arrest Warrant issued To: WCSO/WFPD/DA/JP Arrest Status: At Large Employer: None Employer Address: N/A ============================ =====RETURN=============================== Came to hand day of 2015, at o'clock, and executed on the day of 2015, at o'clock M., by arresting and detaining the within named at in Wichita County, Texas *taking his/her bond *placing him/her in jail at.

I actually and necessarily traveled miles in the service of this writ and in addition to any other mileage I may have traveled in the service of other process during the same trip FEES Making Arrest. $ WFPD Mileage J_ Taking Bond $ Commitment 1 Release L TOTAL L BY

STATE'S EXHIBIT

1 I^M^^ COPY WFPD CASE # 15-061632 WARRANT (DA) 01-135098

THE STATE OF TEXAS AFFIDAVIT FOR ARREST WARRANT COUNTY OF WICHITA

BEFORE ME, the undersigned authority, on this day personally appeared the undersigned affiant, who after being duly sworn by me, on oath stated: My name is John E. Laughlin / WFPD #571, and I have good reason to believe that on or about the 30th day of June, 2015r in Wichita County, Texas, one

NAME OF SUSPECT: Jeffrey Bryan Peyton

Did then and there commit the offense of

OFFENSE: Criminal Solicitation - Capital Murder

Aviolation of Section 15.03 of the Texas Penal Code, a Felony of the 1st degree

Affiant's belief is based upon the following facts and information:

^ Affiant's personal investigation of this alleged offense.

S Karen Wade, a fellow peace officer of the City of Wichita Falls Police Department, Wichita County, Texas, who personally participated in the investigation of this alleged offense, providing this information to affiant, and whose information affiant believes to be credible.

On the basis of facts developed during the investigation of this offense, it is believed that the suspect, on or about the date of June 30. 2015. committed the offense of Criminal Solicitation - Capital Murder, at the following location: 513 North Martin Luther King Jr. Blvd, Wichita Falls, Wichita County, Texas.

The facts also involve a:

^ accomplice: Christina June Peyton

The facts of the offense are as follows:

On 06/26/2015, a cooperating witness contacted the Wichita Falls Police Department about a possible murder for hire. Your affiant met with the cooperating witness and he explained that subjects known to him, Jeffrey and Christina Peyton, asked him to help them find a person willing to "take out" their daughter's boyfriend, Vincent Cole, for three hundred dollars. The cooperating witness also provided your affiant with recordings he made of the conversations he had with Jeffrey and Christina Peyton. Your affiant reviewed the recordings from the cooperating witness and coroborated the information he had provided. Officer Karen Wade from the W.F.P.D. Organized Crime Unit then assisted your affiant with a follow up investigation. On 6/29/2015, the cooperating witness facilitated an introduction of Officer Wade to Jeffrey and Christina Peyton. Officer Wade, posing as an intermediary for the subject to be hired, then recorded her undercover contacts with Jeffrey and Christina Peyton. Jeffrey and Christina Peyton told Officer Wade they were willing to pay to have their daughter's boyfriend, Vincent Cole, gone "permantly" and then arranged a meeting with Officer Wade on 06/30/2015. At approximately 1112 hours on 06/30/2015, the cooperating witness took Christina Peyton to a bank at her request and direction. The cooperating witness recorded his interaction with Christina Peyton and your affiant later reviewed the recording. Christina Peyton intimated that she was getting money from the bank to complete a transaction with the subject the cooperating witness introduced (Officer Wade). While talking about Vincent Cole; Christina Peyton told the cooperating witness, "I want him gone. Not out of town gone. I want him dead gone." She also told the cooperating witness that they (Jeffrey and Christina) planned to take their daughter to a movie so she will not be around, "the day this happens." At approximately 1236 hours on 06/30/2015, Officer Wade contacted Jeffrey Peyton by phone and explained that it would cost more than three hundred dollars to have someone kill Vincent Cole. Jeffrey Peyton then offered to pay five hundred dollars to have Vincent Cole killed. At approximately 1343 hours on 06/30/2015, Officer Wade met with Jeffrey Peyton in the parking lot of 513 North Martin Luther King Jr. Blvd.; which is located within the corporate city limits of Wichita Falls Texas. During UUHY ttfe recorded meeting, Jeffrey Peyton gave Officer Wade three one hundred dollar bills and promised to pay an additional two hunderd dollars after Vincent Cole was killed. Jeffrey Peyton also provided a photograph of Vincent Cole. Officer Wade then offered Jeffery Peyton an opportunity to back out of the transaction but he refused and indicated that he and his wife (Christina Peyton) wanted to go through with the plan. At approximately 1215 hours on 07/02/2015, your affiant contacted Vincent Cole and explained the before listed. Vincent Cole then agreed to cooperate with this investigation and a photograph was created that made it look like he had been shot to death. At approximately 1541 hours on 07/02/2015, Officer Wade contacted Jeffrey Peyton by phone and arranged to meet him across the street from 513 North Martin Luther King Jr. Blvd. Officer Wade met Jeffrey Peyton a short time later and showed him the photograph of the staged dead body of Vincent Cole. Jeffrey Peyton then gave Officer Wade two hundred dollars after viewing the photo and he was taken into custody by an arrest team. Your affiant believes probable cause exists to show that, on or about 06/30/2015, Christina Peyton and Jeffrey Peyton intentionally and knowingly gave remuneration and the promise of remuneration to another (undercover Texas Peace Officer Karen Wade) to murder Vincent Cole.

WHEREFORE, Affiant requests that an arrest warrant be issued for the above accused individual in accordance with the law.

RATE / NOTARY / CLERK OF THE COURT

SUBSCRIBED AND SWORN TO BEFORE ME on the

2nd Day of July, 2015

MAGISTRATE'S DETERMINATION OF PROBABLE CAUSE

On this the ff^- day of , 2015, I hereby acknowledge that I have examined the mm foregoing affidavit and have/ ;rmined/hat probable cause exists for jHfve issuance_c£an_arrest warrant for the individual accused therein.

MAGISTRATE CENTRAL MAGISTRATE OFFICE WICHITA COUNTY, TEXAS CLERK'S RECORD 1 OF 1

TRIAL COURT CAUSE NO. 56208-A FILED IN 2nd COURT OF APPEALS IN THE 30TH DISTRICT COURT FORT WORTH, TEXAS OF WICHITA COUNTY 2/17/2016 1:28:20 PM HONORABLE ROBERT P. BROTHERTON, JUDGE PRESIDING DEBRA SPISAK Clerk

THE STATE OF TEXAS

VS.

JEFFREY BRYAN PEYTON

ATTORNEY FOR APPELLANT: BRENNON BRADY OFFICE OF THE PUBLIC DEFENDER 600 SCOTT AVE., STE. 204 WICHITA FALLS, TX 76301 (940) 766-8199

DELIVERED TO THE COURT OF APPEALS FOR THE 2ND DISTRICT COURT TIM CURRY CRIMINAL JUSTICE CENTER 401 W. BELKNAP FT. WORTH, TX 76196 ON THE 17th DAY OF FEBRUARY, 2016 PATTI FLORES, DISTRICT CLERK

/LJÿ .J -V DIANE JENSEN / y +U. ./

DEPUTY DISTRICT CLERK

APPELLATE COURT CAUSE NO.

FILED IN THE COURT OF APPEALS FOR THE 2n» DISTR1CT COURT AT FT. WORTH, TEXAS THIS _ DAY OF _

BY ,DEPUTY

1 CAUSE NUMBER 56208-A

INDEX

VOLUME PAGE

COVER PAGE I

INDEX 2-3

CAPTION 4

INDICTMENT (FILED 08-05-15) 5

AFFIDAVIT (FILED 08-06-15) 6

STATE'S READY (FILED 08-06-15) 7

ORDER SETTING PRETRIAL CONFERENCE (FILED 08-06-156) 8

J. P. PAPERS (FILED 08-06-15) 9-15

PRECEPT (FILED 08-07-15) 16

PRELIMINARY PRETRIAL MOTIONS (FILED 08-07- 15) 17-19

REQUEST FOR COMPLIANCE WITH 39. 14 (FILED 08-07- 1 5) 20-22

PRETRIAL WAIVER OF ARRAIGNMENT (FILED 08-07-15) 23-25

STATE'S INITIAL 39.14 DISCLOSURE (FILED 08-17-15) 26-30

RECEIPT OF VIDEO (FILED 08-20- 15) 31

ORDER SETTING PRETRIAL CONFERENCE (FILED 10-23-15) 32

APPLICATION FOR WRIT OF HABEAS CORPUS SEEKING BAIL REDUCTION (FILED 12-07-15) 33-36

ORDER OF SETTING (FILED 12-09-15) 37

2 ORDER DENYING WRIT OF HABEAS CORPUS (FILED 01-22-16) 38

LETTER FROM DEFENDANT TO JUDGE (FILED 01-27-16) 39

NOTICE OF APPEAL (FILED 01-28-16) 40

TRIAL COURT'S CERTIFICATION (FILED 01-28-16) 41

ORDER SETTING PRETRIAL CONFERENCE (FILED 01-29-16) 42

DESIGNATION OF CLERK'S RECORD AND REQUEST FOR REPORTER'S RECORD (FILED 02-02-16) 43-44

DOCKET SHEET 45

CLERK'S CERTIFICATE 46

BACK PAGE 47

3 THE STATE OF TEXAS ] COUNTY OF WICHITA ]

In the 30th District Court of Wichita County, Texas, the Honorable ROBERT P. BROTHERTON, Judge Presiding, the following proceedings were held and the following instruments and other papers were filed in this cause, to wit:

Trial Court Cause No. 56208-A

The State of Texas ] In the 30th District Court

vs.

JEFFREY BRYAN PEYTON ] Wichita County, Texas

4 56208 -A : -iucp «l«/rÿ ~ O'clock CAUSE NUMBER: 01-135098-F15 r ?*'S t, J

DEFENDANT: JEFFREY BRYAN PEYTON RACE: WHITE c ,, , rj. ADDRESS: 207B CAROLINA WICHITA FALLS, TX 76306 SEX: Male Cunrf, Uf*'\ CHARGE: CRIMINAL SOLICITATION OF CAPITAL MURDER COMPLAINTANT: COLE,VINCENT DOB: 05/21/ÿ957 ARREST DATE: 07/02/2015 ****** • " FILING AGENCY: WFPD AMOUNT OF BAIL: $1,000,000.00 COURT: 30TH DISTRICT COURT DATE: 07/29/2015 PRIOR CAUSE NUMBER: TRN: 9098877656

INDICTMENT

IN THE NAME AND BY THE AUTHORITY OF THE STATE OF TEXAS:

The Grand Jury of Wichita County, State of Texas, duly organized at the JULY term, A.D. 2015, of the 30th District Court of said county, in said court at said term, does present that JEFFREY BRYAN PEYTON,

hereinafter called defendant, on or about the 30th day of June, A.D. 2015, in said county and state did

then and there, with intent that capital murder, a capital felony be committed, request, command, or attempt to induce Karen Wade and/or Ty Davis to engage in specific conduct, to-wit: killing Vincent Cole in exchange for money, that under the circumstances surrounding the conduct, as the defendant

believed them to be, would have constituted capital murder.

AGAINST THE PEACE AND DIGNITY OF THE STATE. ,

MAUREEN SHELTON Criminal District Attorney Foreman of the Granfl'jury of Wichita County, Texas Bond Amount $ // O gc?/

Witness(es)

5 CAUSE NUMBER: 01-135098-F15 F15 :\!j! , Off /<]!% _MVniR.ORea, Cfark Dist -ourts a-. County Courts at Law DEFENDANT: JEFFREY BRYAN PEYTON RACEÿ,WHITE SEX: Male .Dooi-t. ADDRESS: 207B CAROLINA WICHITA FALLS, TX 76306 CHARGE: CRIMINAL SOLICITATION OF CAPITAL MURDER DOB: 05/21/1957 COMPLAINTANT: COLE,VINCENT ARREST DATE: 07/02/2015 FILING AGENCY: WFPD AMOUNT OF BAIL: $1,000,000.00 COURT: 30TH DISTRICT COURT DATE: 07/29/2015 PRIOR CAUSE NUMBER: TRN: 9098877656

AFFIDAVIT

IN THE NAME AND BY THE AUTHORITY OF THE STATE OF TEXAS:

Before me, the undersigned Assistant Criminal District Attorney of Wichita County, Texas, this day personally appeared the undersigned affiant, who under oath says that he has good reason to believe

and does believe that in Wichita County, Texas, JEFFREY BRYAN PEYTON, hereinafter called defendant, on or about the 30th day of June, A.D. 2015, in said county and state did then and there, with intent that

capital murder, a capital felony be committed, request, command, or attempt to induce Karen Wade

and/or Ty Davis to engage in specific conduct, to-wit: killing Vincent Cole in exchange for money, that under the circumstances surrounding the conduct, as the defendant believed them to be, would have constituted capital murder.

AGAINST THE PEACE AND DIGNITY OF THE STATE.

Sworn tcxand subscribed before me on this 29th day

Assistant Criminal District Attorney of Wichita County, Texas

6 f CAUSE NO. 56208-A

THE STATE OF TEXAS § IN THE 30TFF DISTRICT COURT V. § JEFFREY BRYAN PEYTON § \\ 1(1

STATE'S ANNOUNCEMENT OF "READY" * TO THE PRESIDING JUDGE OF SAID COURT:

The State of Texas, by and through the Wichita County Criminal District Attorney, makes and files this

formal announcement of "ready" in the above entitled and numbered ease and shows the Court the following:

For offense dates January I. 2014, and following, the Criminal District Attorney's policy regarding

criminal discovery is on File in the District Clerk's office. Additionally, this discovery policy is available upon

request at the Criminal District Attorney 's office.

l or offense dates before January 1. 2014, the State maintains an open file policy with the file available for

inspection during business hours; however, the State closes its file Friday at 5:00 p.m. the week preceding the trial

setting. The State's open file only extends to the evidence offered in the case-in-chief and does not apply to

rebuttal evidence or testimony.

The Wichita County Criminal District Attorney's Office has fully examined all available relevant

information concerning this case and is therefore ready to proceed to trial in this matter.

Accordingly, the Wichita County Criminal District Attorney's Office requests that this ease be placed

on the next available docket and thereafter be set for trial in the appropriate manner. Respect fu 1 ly subm itted.

MAURFEN SHI I ION Criminal District Attorney Wichita County

Assistant Criminal District Attorney Wichita County, Texas

7 No. 56208-A

THE STATE OF TEXAS * IN THE 30th DISTRICT COURT * HLfcb littoUHL vs * 0F AT: ÿ O'Clockr M

___ * JEFFREY BRYAN PEYTON * WICHITA COUNTY, TEXAS „ AUG 6 2 ill5 PATTl f-LvJritts, oierK List. ORDER SETTING PRETRIAL CONFERENCE 0001 Uw °y _ .. aT/.--' Doput;

1. The Pretrial Conference is scheduled for October 23, 2015 at 09:00am. The sole purpose of the Pretrial Conference is to announce to the Court whether the case will be disposed of by the entry of a plea of guilty or will remain on the trial docket. Counsel for the State is ORDERED to make its settlement offer, if any, to counsel for the Defendant at least seventy-two (72) hours in advance of the Pretrial Conference, and counsel for the Defendant is ORDERED to communicate the settlement offer, if any, to the Defendant at least twenty-four (24) hours prior to the Pretrial Conference.

2. Leave of Court is hereby granted for the Filing of pretrial motions after the date of this order, subject to the deadline set out below.

3. Pretrial motions must be filed no later than fifteen (15) days prior to the date of the Pretrial Conference. Any party needing a hearing on any pretrial motion must make a request for hearing, in writing, to the Court Administrator no later than fifteen (15) days prior to the date of the Pretrial Conference. All such hearings will be set at least seven (7) days prior to the Pretrial Conference.

4. Agreed Pretrial Orders, such as the order prepared by the Wichita Public Defender's Office, must be signed by counsel for the State and defense and will be entered by the Court without the necessity of a hearing.

SIGNED the 5th day of August, 2015. / , I » '. > L t JUDGE PRESIDING

cc: Criminal District Attorney's Office: JOHN GILLESPIE PUBLIC DEFENDER ~ RfXO-cLÿ JEFFREY BRYAN PEYTON - JAILED

8 a,:!.x A- """ X; 4 .. ; r WFPD CASE # 15-061632 « WARRANT (DA) 01-135098

THE STATE OF TEXAS AFFIDAVIT FOR ARREST WARRANT COUNTY OF WICHITA

BEFORE ME, the undersigned authority, on this day personally appeared the undersigned affiant, who after being duly sworn by me, on oath stated: My name is John E. Laughlin / WFPD #571, and Ihave good reason to believe that on or about the 30th day of June. 2015, in Wichita County, Texas, one

NAME OF SUSPECT: Jeffrey Bryan Peyton

Did then and there commit the offense of

- OFFENSE: Criminal Solicitation Capital Murder

A violation of Section 15.03 of the Texas Penal Code, a Felony of the 1st degree Affiant's belief is based upon the following facts and information:

03 Affiant's personal investigation of this alleged offense.

£3 Karen Wade, a fellow peace officer of the City of Wichita Falls Police Department, Wichita County, Texas, who personally participated in the investigation of this alleged offense, providing this information to affiant, and whose information affiant believes to be credible.

The facts also involve a:

£x] accomplice: Christina June Peyton

The facts of the offense are as follows:

9 the recorded meeting, Jeffrey Pt 1 gave Officer Wade three one hundret liar bills and promised to pay an additional two hunderd dollars after Vincent Cole was killed. Jeffrey Peyton also provided a photograph of Vincent Cole. Officer Wade then offered Jeffery Peyton an opportunity to back out of the transaction but he refused and indicated that he and his wife (Christina Peyton) wanted to go through with the plan. At approximately 1215 hours on 07/02/2015, your affiant contacted Vincent Cole and explained the before listed. Vincent Cole then agreed to cooperate with this investigation and a photograph was created that made it look like he had been shot to death. At approximately 1541 hours on 07/02/2015, Officer Wade contacted Jeffrey Peyton by phone and arranged to meet him across the street from 513 North Martin Luther King Jr. Blvd. Officer Wade met Jeffrey Peyton a short time later and showed him the photograph of the staged dead body of Vincent Cole. Jeffrey Peyton then gave Officer Wade two hundred dollars after viewing the photo and he was taken into custody by an arrest team. Your affiant believes probable cause exists to show that, on or about 06/30/2015, Christina Peyton and Jeffrey Peyton intentionally and knowingly gave remuneration and the promise of remuneration to another (undercover Texas Peace Officer Karen Wade) to murder Vincent Cole.

WHEREFORE, Affiant requests that an arrest warrant be issued for the above accused individual in accordance with the law.

C AFFIANT MAGISTRATE / NOTARY / CLERK OF THE COURT

SUBSCRIBED AND SWORN TO BEFORE ME on the

2nd Day of July, 2015

MAGISTRATE'S DETERMINATION OF PROBABLE CAUSE

On this the / . day of .. /_ , 2015, I hereby acknowledge that I have examined the foregoing affidavit and have individual accused therein. detained thar probable cause exists for the issubnCe of an arrest warrant for the X MAGISTRATE CENTRAL MAGISTRATE OFFICE WICHITA COUNTY, TEXAS

10 Ml , y'z/'S' {\6\b<62\ •' i % ÿ

At> WARRANT OF ARREST AND DETENTION WFPD CASE # 15-061632 WARRANT NUMBER 01-135098 WICHITA COUNTY, TEXAS BOND AMOUNT $ ,, .T-

In the Name of the State of Texas, To any Sheriff, Constable or Peace Officer of the State of Texas, Greetings: YOU ARE HEREBY COMMANDED TO TAKE INSTANTER THE BODY OF:

Jeffrey Bryan Peyton

Criminal Solicitation - Capital Murder

of which FELONY offense the said suspect is accused by the written affidavit, under oath of

John E. Laughlin / WFPD #571

filed before me anterior to the issuance of this warrant. Herein fail not and due return make hereof at the place hereinafter named.

Witness my official signature this the 2nd Day of July, 2015.

justice Of the peacÿ/magistrAte"

WICHITA COUNTY, TEXAS *************************** ********** administrative data************************************* State of Texas vs. Jeffrey Bryan Peyton Race: W Sex: M DOB: 05/21/1957 Ht: 508 Wt: 170 Hair: Brn Eyes: Blu DL: TX / 15508343 Address: 207 Carolina Apt. B, Wichita Falls, TX 76306 Complainant: Vincent Wade Cole Date of Offense: 06/30/2015 Arrest Warrant issued To: WCSO/WFPD/DA/JP Arrest Status: At Large Employer: None Employer Address: N/A = = ============ == ========= = == =====RETURN= =================== =========== Came to hand _ day of _ 2015, at _ o'clock, and executed on the day of JWy _ 2015, at _ o'clock _ M., by arresting and detaining the within named at _ ___ in Wichita County, Texas *taking his/her bond ÿplacing

....... him/her in jail at _ .

........... Iactually and necessarily traveled _l_ miles in the service of this writ and in addition to any other mileage I

....... may have traveled in the service of other process during the same trip.

FEES- Making Arrest X _ WFPD Mileage J Taking Bond J Commitment $ \ \_ ~$ V ) Release TOTAL $_ _BY_ A. V? ÿ7 /

11 THE STATE OF TEXAS v. ,, />„ (W) < '_ />»,,. »/>t A6, 6-59.) "

., /( bF-lyiM ÿ>>7 ™ r~j __ Magistrate No. ÿ Misdemeanor- CI;Class. ÿ state jail Felony [fi1ÿFelony - Degree: _ i

________ _ _ CERTIFICATION OF MAGISTRATE'S WARNING, PROBABLE CAUSE DETERMINATION, AND ORDER SETTING BOND

This is to certify that at the time and date entered below, the above-named accused appeared before me in Wichita County, Texas, at which time and place 1 administered the following warnings as required by the Texas Code of Criminal Procedure: A, gl->

"M}u are accused of the offense of tCrAv/.ÿÿ - i Murder ly An affidavit signed by L AMtk /»>1 _has been filed in this cause. ÿ A teletype from __ ___ _ County, Texas, has been received.

You have the following rights: --pf You have the right to retain counsel or hire an attorney. You have the right to request appointment of counsel if you arc indigent and cannot afford to hire counsel. You shall be allowed reasonable time and opportunity It) consult with counsel if you desire." You have the right to have your attorney present during any interviews with peace officers or attorneys representing the state; You have the right to remain silent. )/( You arc not required to make a statement and any statement made by you may be used against you. A You have the right to terminate or stop any interview at any time. If you arc charged with a felony offense, you have the right to have an examining trial.

___ Are you indigent and do vou want to request that an attorney be appointed to represent you? ÿ No CCÿcs; the forms for requesting a court-appointed attorney were furnished and the procedures foi requesting a court-appointed attorney were explained. [J The accused requested and was provided assistance in filling out the forms. Are, you able to speak and understand the English language',' Yes ÿ No; _ interpreted in the language.

_ ___ An/you deaf? J£.j No ÿ Yes: _ interpreted.

Sufficient facts have been presented to me under oath by affidavit, sworn testimony, or otherwise to show that probable cause exists for the continued detention of the accused. Bond is hereby: set at $ I.bfiO OOP ÿ Denied ÿ P. R. Bond

Place: _ L__. - ÿ

. ,/ ' ÿJustice of the Pcaccg Prcl , Place Time: /DiOCJ y A.M. P.M.. Date: A'7T , 20 /S 0 Magistrate, Wichita County, Texas

12 l/4- STATE OF TEXAS * IN THE MUNICIPAL COURT : * ÿ; ÿÿ

VS * OF

IÿmAk) fav(JcW * WICHITA FALLS, TEXAS ~D (Sitting as Magistrate)

CONDITIONS OF BOND

Ihereby acknowledge that Ihave reviewed and considered the probable cause affidavit relative to the offense(s) of AftVl . 'JaUh , @Ap. d the above mentioned Defendant, and have determined that conditions of bond should be imposed. Therefore, the Court ORDERS that as a condition of bond, the Defendant shall: A)OT MAjCL CfrOTAOT ti/TH Th ? AJ/fjtcl V/tAt'w . dft /rifSnbr/Z c>4 Lh /tf /op /I OA-oil ft-joÿcrhzti fieAsa ._ ; -ft> mafti_ -54- /A

This ORDER is effective at '-f / 3& fXjyfr / P.M. on the ? day of _' 20 Jf), and shall remain in effect until such time as the Defendant is no longer released on bail/bond for the offense specified above, unless otherwise specified herein. VIOLATION OF CONDITIONS OF BOND SHALL RESULT IN THE REVOCATION OF BOND AND THE RETURN OF THE DEFENDANT TO CUSTODY. Icertify that on this date and in open court, the above named Defendant has been advised and instructed as to this Order and the Conditions of Bond contained herein.

Signed at V,' 30 {k.yi. / P.M. on the 3 day of kj s L j ,20 1$

Jb< t- 'k J. Mbnael Whalen Magistrate

Copy provided to Defendant.

13 CAUSE no.OH"560 ÿ- i(\vAVDWtat 6c)iaÿCdAtA-A fcy lWfderÿU>3o Opritfl l5-

THE STATE OF TEXAS IN THE _ :' vs. OF

,etf BuvjH ) WICHITA COUNTY, TEXAS

ORDER APPOINTING ATTORNEY

Pursuant to application for court appointed counsel for indigent defendant heretofore presented to the Court, and after having given the same due consideration, the Court is of the opinion that an attorney should be appointed to represent the defendant in the above entitled and numbered cause.

It is ordered that (the Public Defender or _ , a practicing and qualified attorney) be, and said attorney is hereby appointed as attorney for the defendant in the above entitled and numbered cause. This appointment is effective the date of this order, or such earlier date as actual notice of such appointment may have been given to said attorney, if the same appears anywhere in the record of this cause.

If the Public Defender is not appointed, said attorney is among the next five names on the applicable appointment list for the offense charged.

Said attorney is not among the next five names on the applicable appointment list for the offense charge and the good cause for this attorney to be appointed is:

Denied - not indigent.

Signed this _ _ day of 11 lv|_ , 2Ol0>.

JUDGE PRESIDING

COPIES MAILED TO: " " ÿ

' IV' riVK ;• U; Attorney: _ __ Attorney s Phone ff H4p) ~7t£ Lf "??! °l H "

Court Administrator Defendant: _ HI

14 USE INK PENS ONLY - NO PENCILS BOOK-IN # .-4 CJ J _ R6llo59l j

DECLARATION1 OF INABILITY TO HIRE COUNSEL CASE NO(S): CHARGE(S): Misd. __ p-p-.. FelonyÿÿM?ffiirV JUL 0 6 2015

AND REQUEST FOR COURT-APPOINTED COUNSEL UMU "I STATE. UNDER OATH AND SUBJECT TO BEING CHARGED WITH PERJURY. THAT THE FOLLOWING ANSWERS TO THE FOLLOWING QUESTIONS ARE TRUE. 1 AM ASKING FOR COURT -APPOINTED COUNSEL." 1. W hat is vour full legal name? Bi~ YA rJ i _ °'/ C *2 2 C'xJjch tfe. F$[L5~[fc. "Poicb / 1/f 7_ What is the street address, town, state, and zip code where you live? f T S> fyp What is vour date of birth? ! Q ÿ 2 \ { H5 1 0b 21 S 2. Are you a U. S. citizen? if you answered "No" to this last question, what is your country of citizenship? 3. What is the telephone number where you live? 7C'/- 2(ÿ1_ What is your cell phong.nutnber? 4. Who pays for the house or apartment where you live? fA C hhiSy i/\it t/Lgi&J* how- js this person related to vou? UJ /T.J2-_ How much do they pay each month?S ST How many people live in the bouse or apartment where you live? 2 About how much money do all the adults that you live with make together each month?S 5. Do you have any children? N <2 How many? & Do your children live with you? C> Do you get child support? -1A1 How much each month?S 0* If your children do not live with yÿou, do you pay child support? £ How much each month? 5 0 0. Do you have a job?_AA3_ Where do you work? I* ljifA At S iT? / __ How much do you get paid? S IZVO0 ( mo./wk.) If you don't work right now, when is the last time you had job? \)/ft Where did you work? _ AJ //) When is the last time you got paid? f0' f 3 How much?S p/ttV /? _ yb* iJp Do you get any welfare, disability, pension or unemployment benefits? 7-ÿs. What kind? <J li>A btUti/ SÿPÿ/ j/A . Pp.'J ÿItfJ How much total each month? S / 2ÿ _ ÿ

7. Do you own a car or a truck or a motorcycle? /f ÿ Which ? C J- £ ____ Is it (are they) paid for? Y'L ÿ How much is it (are they) worth? S f? dOe~ 8. Do you own a house or any land? X c' Which? .AJ Is it paid for? AJ M What is it worth? S A' /ÿ 0. Do you own any furniture, appliances, televisions, stereo, or jewelry? S How much is it all w orth? S__5j2£4_ 10. Do you have any cash anywhere? /ÿ* ÿ How much? S 0 Do you have any bank accounts? 6 How much money do you have in the bank? S 'ÿ 1 ÿ °L _ 11. Are you in jail? XL'S How much is your bond? S /j , O GO _ Can you make your bond? AJ _ AJ / _ _ A' /A_____ How much are you pay ing your bondsman? S_ __ ea. mo./w k. Can anyone else make your bond? AJ Who? ft IIyou have already made bond, who

12. is your bondsman? Can you borrow any money from anyone to hire a lawyer? A/ 3 W ho can you borrow the money from?_ AjJP _ 13. Was anybody else charged with this offense with vou? Who? Xi F%- A /i£ > £f o iaaJc. pz/T-'j I HEREBY AUTHORIZE THE COURT ADMINISTRATOR TO VERIFY THIS INFORMATION FROM ANY SOURCE.

f$ |*l \"J. ..... i

N.TorxvV r\ /v" /*J M WALKER Notary Public, Stale ol Texas My Commission Expires 07-09-2018 \JL $.*}** &i<ÿ Defendant'sSJ.K»»x«.v lyK,c„u«„x Signature

SWORN TO AND SUBSCRIBED BEFORE ME, the undersigned authority, on _ _, /_}_ 20

ANSWER ALL QUESTIONS Notary Public/Magistrate Commission Expires: _

Revised: 03.06.08

15 PRECEPT TO SERVE COPY OF INDICTMENT -

CAUSE : 56208-A

THE STATE OF TEXAS

vs. S County Courts et)!W Cot$fy f Ax PEYTON.JEFFREY BRYAN

To the Sheriff of Wichita County, said State. Greeting:

You are Hereby Commanded to forthwith deliver to PEYTON.JEFFREY BRYAN, a prisoner in

your custody, the accompanying certified Copy of Indictment.

Herein Fail Not, and due return make hereof, without delay.

Witness my signature and seal of office on this 5th day of August, 201 5 PATTI FLORES. Clerk

,ÿ ' 30th DISTRICT COURT Wichita County

-'V*.. -*V- 'ÿ<« DIANE JENSEN. DEPUTY ÿ< - A _ _ .. t./ ,>r <

SHERIFF'S RETURN

Come to hand on the 0U_ day ofQjJfr A.D. 20 lS. & '-3D_o'clock /Km, and executed on the same day. at

by delivering to the within named PEYTON.JEFFREY BRYAN, a prisoner in my custody, in person, a certified

Copy of Indictment mentioned within and delivered to me with this writ.

Clerk this day of A.D. 20 .Sheriff Wiehitaj£?t5linty, Texas

(/ 72 uty

c, •

16 ÿ

°'Clock\_M CAUSE NO. 56208-A

THE STATE OF TEXAS IN THE tliy at ÿy. puntv T0;jps VS. OF

JEFFREY BRYAN PEYTON WICHITA COUNTY, TEXAS

PRELIMINARY PRE-TRIAL MOTIONS

MAY IT PLEASE THE COURT:

Open File Policy

The defendant and the undersigned understand that the prosecuting attorney has an "open file" policy in this case and that counsel and the accused may view the contents of the prosecuting attorney's file during regular business hours or upon other agreement at a mutually convenient time as designated by the prosecuting attorney.

II.

Motion to List Names of Witnesses

The above defendant moves the Court to order that in the event that this matter is placed on the trial docket or specially set for trial that the prosecuting attorney be required to file a list the names of those fact or lay-opinion witnesses that the state expects to call at the trial of this cause and that the state provide said list of witnesses to the undersigned at least seven (7) days before the commencement of trial voir dire.

III.

Motion for Prior Witness Statements for Cross-Examination

The above defendant moves the Court to direct the prosecuting attorney to produce for inspection by defendant and counsel any written statement, notes or reports, including expert reports made by any witness, lay or expert, called by the state prior to the time that counsel conducts his cross examination of the witness as required by law and the Texas Rules of Evidence. IV.

Motion for Exculpatory Evidence

The above defendant by his or her attorney moves the Court to direct the State of Texas to disclose to the defendant and his or her attorney all exculpatory and mitigating evidence and/or facts within the possession, custody or control of the State's Attorney, or any of his or her agents and others the existence of which is known, or by the exercise of due diligence may be known to said State's Attorney.

17 Further, defendant requests that the State be ordered, pursuant to Brady v. Maryland, 373 U.S. 83 (1963) and Kyles v. Whitley, 115 S.Ct. 1555 (1995) and Rule" 3.09(d) Texas Disciplinary Rules of Professional Conduct, to exercise its affirmative duty to seek out and learn of any evidence favorable to the defendant and to provide defendant with any evidence or information in the possession, in control of, or known to agents of the State of Texas (directly or constructively) which is inconsistent with the alleged guilt of the defendant or relevant punishment which should be assessed against the defendant.

Motion to Reveal the Deal

The above defendant herein in the above entitled and numbered cause, by and through counsel, moves the Court to issue an order requiring the State to reveal any agreement entered into between the prosecuting attorney or any other law enforcement agency and any prosecution witness that could conceivably influence said witness' testimony.

The credibility of said witnesses will he an important issue in the principal case, and the evidence of any understanding or agreement as to future prosecution would be relevant to such witness' credibility and the trial jury is entitled to know of it.

A refusal to reveal any such agreement constitutes a violation of the due process protections provided by the Fifth and Fourteenth Amendments to the United States Constitution, Article I, Sections 10, 13, and 19 of the Texas Constitution, and Articles 1.04 and 1.05 of the Texas Code of Criminal Procedure. VI.

Motion for Disclosure of Expert Witnesses

The above defendant requests that the State provide the names and addresses of all witnesses that qualify under Tex. R. Evid. Rules 702, 703, and 705 and may be called as a witness in this case. See Tex. Code Crim. Pro. art. 39.14(b). The defendant requests the Court order disclosure to be made not later than the 20th day before the date of trial of the instant cause.

VII.

Motion for Discovery of Statements made by the Defendant

The defendant moves the Court to direct the prosecuting attorney to produce and/or copy for the defendant and counsel any written statement, recorded statements, videos and/or audios recorded statements of the defendant in the possession of the State or any agents of the State, including all audio recordings of the defendant made by the jail telephone-recording system.

18 VIII.

Motion for Leave to Make Additional Motions

The above-named defendant, after reviewing the prosecuting attorney's file and evidence, moves the Court to be allowed to make further and additional pre-trial motions under Tex. Code Crim. Pro. art. 28.01 et. secj. any time up to and including seven (7) days before the trial of this cause. The defendant further requests that any additional such motions be heard and ruled upon before the commencement of opening statements in the case.

IX.

No Waiver of Rights

Nothing in this document should be construed by the Court as a waiver of the defendant's rights under Tex. Code Crim. Pro. art. 1.14, the United States Constitution or the Texas Constitution. Defendant DOES NOT WAIVE any rights afforded to him or her as provided by law.

Respectfully submitted,

OFFICE OF THE PUBLIC DEFENDER 600 Scott Street, Suite 204 Wichita Falls, Texas 76301 Telephone: (940)766-8199 Facsimile: (940)716-8561

Bfenrion D. Brady State Bar No. 24038120 Attorney for the Defendant

CERTIFICATE OF SERVICE

Ihereby certify that a copy of the above document was served upon all opposing counsel

according to the applicable rules of procedure on the date of the filing of this Motion.

Brennon D. Brady

19 NO. 56,208-A ÿ T.j >

THE STATE OF TEXAS § IN THE ,>(>'" OiS ERIC IVCOI R I

VS.

JEFF PEYTON § WICHITA COUNTY, TEXAS

REQUEST FOR COMPLIANCE WITH ARTICLE 39.14 OF THE TEXAS CODE OF CRIMINAL PROCEDURE

MAY IT PLEASE THE COURT:

Comes now the attorney of record for the defendant in this cause, and submits this formal request to the attorney representing the State to comply with article 39.14 of the Texas Code of Criminal Procedure to producing and permitting the inspection and the electronic duplication, copying, and photographing, by and on behalf of the defendant of the following:

1 . Any offense reports of any law enforcement officer or officers or investigators involved in the investigation, arrest, and/or detention of the defendant;

2. Any documents, papers, written or recorded statements of the defendant;

3. Any documents, papers, written or recorded statements of any witness;

4. Any photographs, audio or video recordings of the defendant, witnesses, victims, or alleged crime scenes;

5. Any books, accounts, ledgers, letters, photographs, or other tangible objects involved in the investigation and/or prosecution of this offense;

6. Any tangible property of any type seized during any arrest, search, and/or detention of the defendant;

7. Any evidence which is exculpatory, impeaching, or mitigating including, but not limited to documents, items or information in the possession, custody, or control of the State, any law enforcement agency, or any State agency;

8. The names, current addresses, and current telephone numbers, of any witnesses which may be called by the prosecution in this cause pursuant to Rules 702, 703, and 705 of the Texas Rules of Evidence; and

9. The criminal history of each and every person the prosecution may call as a witness in this cause.

TCCP 39.14 request

20 This request does not include the work produet of the State's attorney in this cause or investigators employed by the State's attorney, or their notes, or written communications between the State's attorney and an agent, representative, or employee of the State. However, it does extend to all items requested herein that are in the possession, custody, or control of the State's attorney or any person under contract with the State. The State's attorney may provide electronic duplicates of any documents or other information.

This request extends to any time before, during or after trial that the State, its agents, servants, and/or employees discover any additional document, item, or information required to be disclosed pursuant to article 39.14(h) of the Texas Code of Criminal Procedure requiring the State's attorney to promptly disclose the existence of documents, items or information to the defendant, his/her attorney of record, and the Court.

Additionally, defense counsel hereby requests that the State electronically record or otherwise document any documents, items, or other information provided pursuant to this request, setting forth each document, item or other information and the date and time same was provided to defense counsel.

Defense counsel requests that the State's attorney comply with these requests as soon as practicable.

Respectfully submitted,

OFFICE OF THE PUBLIC DEFENDER WICHITA COUNTY, TEXAS

600 Scott Street, Suite 204 Wichita Falls, Texas 76301 Telephone: (940) 766-8 1 99 Facsimile: (940) 766-8198

By: BrenrjoliÿB'radyÿ State Bar No. 24038120 Attorney for the Defendant

i TCCP 39.14 request

21 CERTIFICATE OF SERV ICE

This is to certify that on the date of filing, a true and correct copy of the above and foregoing document was served on the District Attorney's Office, Wichita County, 900 7lh Street, Wichita Falls, Texas 76301, by hand delivery.

BrennotfFh-ady Attorney for Defendant

TCCP 39.14 request 3

22 CAUSE NO. 56208-A

THE STATE OF TEXAS IN THE 30 DISTRICT COUR ÿOuris 4 Ooufty Qrÿ, VS. OF i„ Wichita CoV/rihi t

JEFFREY BRYAN PEYTON WICHITA COUNTY, TEXAS

Pretrial Waiver of Arraignment, Request for Notice of Extraneous Offenses and Defendant's Objection to Evidence

1. Appearance and Waiver of Arraignment

The undersigned counsel appears as lawyer on behalf of the defendant in this case and

waives the formal arraignment of the defendant. The defendant enters a plea of "not guilty''' to

all charges and a plea of "not true" to all enhancement allegations.

2. Request for Notice

The defendant timely requests that the prosecuting attorney for the State of Texas give

counsel reasonable notice in advance of trial of the State's intent to introduce any evidence of

extraneous offenses, crimes, wrongs, convictions and/or "bad acts" in the trial of this case and

under the following particular circumstances:

1. In the State's case-in-chief such evidence other than that arising in the

same transaction. See Tex. R. Evid. 404(b).

2. In the State's effort to impeach a witness during the trial of this cause.

See Tex. R. Evid. Rule 609 (0. See e.g. Cream v. State, 768 S.W.2d 323, 326

(Tex. App. — Houston 1 14lh Dist.] 1989, no pet.).

3. In the State's casc-in-chief such evidence as is described in Tex. Code

Crim. Pro. art. 38.37 § 2. See Tex. Code Crim. Pro. art. 38.37 § 3; see e.g.

Howland v. State, 990 S.W.2d 274, 277 (Tex. Crim. App. 1999); Hitt v. State, 53 S.W.3d 697, 705 (Tex. App. — Austin 2001, pet. refd.).

23 4. During the punishment phase of trial or of issues associated with the

punishment or sentencing of the defendant. See Tex. Code Crim. Pro. art. 37.07 §

3(g).

5. If any extraneous crime or bad act that the State seeks to introduce has

not resulted in a final conviction in a court of record or a probated or suspended

sentence, then the date on which and the county in which the alleged crime or

bad act occurred and the name of the alleged victim of the crime or bad act shall

also be set forth in the State's notice pursuant to the above article. See Tex. Code

Crim. Pro. art. 37.07 § 3(g).

3. Defendant's Objection to Evidence

In addition to the foregoing request the defendant hereby objects to the State's attempt to

offer evidence without a sponsoring witness pursuant to the procedure outlined in Tex. Code

Crim. Pro. art. 38.41. In lieu of live courtroom testimony Article 38.41 permits evidence

through the filing of a certificate of analysis according to Art. 38.41 § 4. This right is

unavailable if the defendant objects. The defendant objects and demands the opportunity to

confront and cross-examine all of the witness-analysts who conducted any laboratory analysis

of the physical evidence in this case or any of the physical evidence the State intends to

introduce relevant to any extraneous offenses, bad acts or wrongs. See U.S. CONST. Amend. VI;

Tex. Const. Art. 1 § 10; Tex. Code Crim. Pro. art. 1.05.

24 Respectfully submitted,

OFFICE OF THE PUBLIC DEFENDER 600 Scott Street, Suite 204 Wichita Falls, Texas 76301 Telephone: (940)766-8199 Facsimile: (940)716-8561

Brefmon D. Brady State Bar No. 24038120 Attorney for the Defendant

CERTIFICATE OF SERVICE

Ihereby certify that a copy of the above document was served upon all opposing

counsel according to the applicable rules of procedure on the date of the filing of this

Motion.

25 Criminal Case No. 56208-A

THE STATE OF TEXAS Cifv IfcOHtcj <'.Vk U0Uf*fl#™* &»#*'* l- V.

JEFFREY BRYAN PEYTON

THE STATE'S INITIAL 39.14 DISCLOSURE

The State of Texas files this INITIAL DISCLOSURE pursuant to Article 39.14 of the Texas Code of Criminal Procedure. In addition to the items electronically disclosed (and listed below), there may be items such as video, audio, and tangible evidence that are available at the District Attorney's Office for inspection and electronic copying.

It is the duty of the defense attorney to make an appointment with the District Attorney's Office to review any of these items of tangible evidence ( such as videos, audios, or physical evidence). Additionally, while the State will produce any audio or videotapes available for electronic reproduction after the defense attorney sets up an appointment, the State will not make the copies or furnish the equipment to make the copies. It is the duty of the defense attorney to bring the equipment to make the electronic copies.

The District Attorney's Office maintains a log of potential impeachment information on past and present local law enforcement officers. A defense attorney may view this log by contacting the DA Investigator assigned to this case.

Jail phone calls can be listened to and copies can be obtained at the Wichita County Sheriff's Office by appointment. These calls are being produced by the District Attorney's Office at the Wichita County Sheriff's Office on an ongoing basis. Therefore, it is the duty of the defense attorney to check as often as they deem necessary to obtain additional calls made after this date.

The items listed in Exhibit A have been disclosed to the defense counsel.

26 Respectfully submitted,

Maureen Shelton Criminal District Attorney ity; Texas

JOljlN GILLESPIE Assistant Criminal District Attorney- Texas Bar No. 24010053 3rd Floor, Wichita County Courthouse Wichita Falls, Texas 76301 Telephone: (940) 766-81 13 Telefax: (940) 7 16-8530

Certificate of Service

1 certify that a true and correct copy of the State's INITIAL 39.14 DISCLOSURE was sent via hand delivery on the 17th day of August. 2015 to Brennon Brady by Margie Boone putting it in the Public Defender's drop box in the District Clerk's Office.

JOHN GILLESPIE ÿj

27 EXHIBIT A

Delivery Document Detail No. of Delivery Date Pages Method 08/14/2015 Reports Supp by dilbeck Reports Supp by davis Reports Supp bv wade Reports Incident Evidence Evidence on hand Reports Arrest warrant/affidavit Reports Supp by laughlin Reports Case packet checklist Reports Prosecution Notice of items not Cds uploadable Evidence Bank records/first convenience 14 hank (destinee vvilcox bv Christina vvilcox) Evidence Bank records/first convience 18 bank (Christina vvilcox or Jeffrey pcyton) Evidence Bank records/first convenience hank < Jeffrey peyton or Christina vvilcox) Reports Supp by laughlin Evidence Bank records/first convenience bank (jeffrey pcy ton or Christina vvilcox) Reports Supp by sanche/ Reports Supp by lerguson Reports Supp by sacn/ Reports Supp by vvyrick Reports Supp by lerguson Reports Supp by sheehan Reports Supp by o/.una Reports Supp by li Reports Supp by keith Reports Supp by miller Reports Consent to search (signed by jeffrey pcyton) Reports Supp by scluilte Reports Arrest (christina June peyton) Central magistrate Order setting bond (christina filings June peyton) Reports Caw enforcement report Criminal history Neie, tcic Criminal history Wfpd rap sheet Reports Txdps driver license image

28 retrieval - search results Reports Transcriptions of recordings 170 Reports Miranda warning I Reports Txdps driver license image I retrieval - search results Notice of items not Cds 13 uploadable

29 Gillespie, John

From: Gillespie, John Sent: Friday, August 14, 2015 3:46 PM To: Brady, Brennon Subject: Jeffrey Peyton Initial Discovery 56,208-A Attachments: 01-135098_14AUG2015_0344pm.zip

Your message is ready to be sent with the following file or link attachments:

01-135098_14AUG2015_0344pm

Note: To protect against computer viruses, e-mail programs may prevent sending or receiving certain types of file attachments. Check your e-mail security settings to determine how attachments are handled.

t 30 - - - - ;

CAUSE NO. $"6, - A_ Al'G' > THE STATE OF TEXAS § IN THE 30ÿ iXy : § ?>sr V. § OF _ l>ÿ(e O ÿ Jt f-fr< ÿ Ytÿ Vx § WICHITA COUNTY, TEXAS

RECEIPT OF VIDEO

This document serves to certify that the item(s) listed below was transmitted

via hand delivery to 1)» ~X?& t- ÿ"(lie attorney retained to represent the defendant in this matter.

The undersigned acknowledges that he has received _ DVD(s) containing

the electronically recorded statements of the defendant. The D.A.'s office certifies

that the DVD(s) delivered contain true and accurate copies of the:

ÿ Patrol Car Video ÿ Intoxilyzer Room Video

Other: 6> C J DÿTXs_

Received: /'V\ /V\qr l~ T\ÿlgls Date: IT / \ _L v<s -h. -hi

Delivered: -vw, _ Date: ÿ//T//j," Wichita County Criminal D.A.'s Office

SCANNED 31 No. 56208-A

THE STATE OF TEXAS * IN THE 30thDISTR|CTÿCOURT<A_. '

* iÿ VS. * OF , . .

* COUJ* 1" V, TEÿM':ÿ JEFFREY BRYAN PEYTON * WICHITA .. - - /S u

ORDER SETTING PRETRIAL CONFERENCE

1. The Pretrial Conference is scheduled for January 29, 2016 at 09:00am. The sole purpose of the Pretrial Conference is to announce to the Court whether the case will be disposed of by the entry of a plea of guilty or will remain on the trial docket. Counsel for the State is ORDERED to make its settlement offer, if any, to counsel for the Defendant at least seven (7) days in advance of the Pretrial Conference, and counsel for the Defendant is ORDERED to communicate the settlement offer, if any, to the Defendant at least twenty-four (24) hours prior to the Pretrial Conference.

2. Leave of Court is hereby granted for the filing of pretrial motions after the date of this order, subject to the deadline set out below.

SIGNED the 23rd day of October, 201 5. I / ( , (_ f c / * JUDGE PRESIDING

cc: Criminal District Attorney's Office: JOHN GILLESPIE BRENNON BRADY JEFFREY BRYAN PEYTON - JAILED

32 ijfo HfcQO)RC) V.. O'clock • M

CAUSE NO. 56208-A . <-J I— :: .C a 7 U ÿ> . -r

r'A'n f r'Lsyrÿ zx vioU\ lJySI, Courts & County Gburts at Law ÿ THE STATE OF TEXAS § IN THEÿÿEÿSfg QQtlHiT V. § OF § JEFF PEYTON § WICHITA COUNTY, TEXAS

APPLICATION FOR WRIT OF HABEAS CORPUS SEEKING BAIL REDUCTION

TO THE HONORABLE JUDGE OF SAID COURT:

Now comes JEFF PEYTON, Defendant, by and through his attorney of record,

and makes this Application for Writ of Habeas Corpus Seeking Bail Reduction, and for

good cause shows the following:

1. JEFF PEYTON was arrested on July 2, 2015 and is presently confined in

the Wichita County Jail charged with Criminal Solicitation of Capital Murder , a first

degree felony.

2. Bail has been set in this case in the amount of $100,000.00. JEFF

PEYTON has been held under bail of $100,000.00 since the date of his arrest.

3. JEFF PEYTON's confinement and restraint is illegal because his bond is

excessive, oppressive and beyond his financial means, in violation of the Eighth and

Fourteenth Amendments to the United States Constitution, Article I, §§ 11, 13 and 19 of

the Texas Constitution, and Articles 1 .09 and 17. 1 5 of the Texas Code of Criminal

Procedure.

4. JEFF PEYTON respectfully requests this Court to grant him a personal

recognizance bond because he cannot afford to make bail in any amount. Unless a

personal recognizance bond is granted, he will be forced to remain in jail pending

33 disposition of this case.

5. In the alternative, JEFF PEYTON respectfully requests the Court to conduct an

evidentiary hearing and, after receiving evidence, reduce bail to a reasonable amount in

order that JEFF PEYTON may be able to obtain release from incarceration pending trial.

WHEREFORE, JEFF PEYTON prays that Court direct the Sheriff of Wichita

County, Texas to produce JEFF PEYTON before this Court at such time and place to be

designated by the Court, for an evidentiary hearing. JEFF PEYTON further asks the

Court to grant him a personal recognizance bond or, in the alternative, set bail in a

reasonable amount.

Respectfully submitted,

OFFICE OF THE PUBLIC DEFENDER 600 Scott Street, Ste. 204 Wichita Falls, Texas 76301 (940) 766-8199 (940) 716-8561

Brennon Brady Attorney for Defendant State Bar No. 24038120

34 CERTIFICATE OF SERVICE

This is to certify that on the date of tiling, a true and correct copy of the above and foregoing document was delivered to the District Attorney's Office, Wichita County, Wichita County Courthouse, 900 7lh Street, Wichita Falls, Texas 76301, by hand delivery.

Brennon Brddy. Attorney for Defendant

35 AFFIDAVIT

THE STATE OF TEXAS § § COUNTY OF WICHITA §

BEFORE ME, the undersigned authority, on this day personally appeared Brennon Brady, Assistant Public Defender, who being by me duly sworn, upon oath deposes and says,

"I am Brennon Brady, attorney for the defendant in this cause; I have read the above and it is true and correct to the best of my knowledge."

Affiant

SUBSCRIBED AND SWORN TO BEFORE ME on , 2015, to certify which witness by hand and seal of office.

! ÿÿ ÿ:< rX L / JANET CANNEDY Notary ID# 12879255-5 My Commission Expires November#, 2019

36 PILED FOR OL-COPD AT: O'clock.J ivt CAUSE NO. 56208-A IP." * L. «v e l'JIJ ?om THE STATE OF TEXAS IN THE 30th DISTRICT COURT n Courts oieiK 0«St. & woOnty Courts at Law V. OF r;. WtetÿtaCounfy, Texas

JEFF PEYTON WICHITA COUNTY, TEXAS

ORDER OF SETTING

On ;2 , 201 5, cainc to be heard JEFF PEYTON's Application

for Writ of Plabeas Corpus Seeking Bail Reduction. It is ORDERED that the motion is set

for hearing before me on c\iAt\U(Xyv/l rP- 20 R\ at ÿ\sQ{J o'clock L\ .m. .r

Signed on n,'% / \

L L i Ik.-l ?v . /

JUDGE PRESIDING

37 Pm M NO. 56208-A MM 2 2 20 IS THE STATE OF TEXAS § INTHE 30U i/te,IOTRI£ÿ£Q\JRT

VS. OF __Depu*> JEFFREY PEYTON WICHITA COUNTY, TEXAS

ORDER DENYING WRIT OF HABEAS CORPUS

On this the 22nd day of January 2015, came for consideration Defendant's

Application For Writ of Habeas Corpus Seeking Bail Reduction. The Court after

hearing the evidence and considering the law applicable to the case hereby DENIES

the bail reduction. Bail is continued in the amount of $1,000,000.00.

Signed on this the 22nd day of January 2015.

> , ' ) ) L L (. lLUlO '

Presiding Judge 30th District Court

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39 iLED, FOR HhCor/ r ....... .. '' -"wv>7 NO. 56208-A JAM 2 8 2tfiS THE STATE OF TEXAS § IN THE 30™ § VS. § OF / § JEFF PEYTON § WICHITA COUNTY, TEXAS

NOTICE OF APPEAL

NOW COMES, JEFF PEYTON, Defendant in the above entitled and numbered cause,

and hereby gives NOTICE OF APPEAL from the order denying the defendant's application for

writ of habeas corpus.

Respectfully submitted, OFFICE OF THE PUBLIC DEFENDER 405 Wichita County Courthouse Wichita Falls, Texas 76301 (940) 766-8199

Brennon D. Brady Attorney for Defendant State Bar No. 24038120

40 CAUSE NO. 56208-A AT: ...... . MLED hfcjfi RfcCOtÿc ÿ O'Cloqk - M

JAN 2 8 2 (MS THE STATE OF TEXAS § IN THE 30 1 H DIST fkUfcf Catfils at Law Wichita Counjfttfex&s / Hp* / ' V. § OF

JEFF PEYTON § WICHITA COUNTY, TEXAS

TRIAL COURT'S CERTIFICATION OF DEFENDANT'S RIGHT OF APPEAL

I, judge of the trial court, certify this criminal case:

_ is not a plea-bargain case, and the defendant has the right of appeal. _ is a plea-bargain case, but matters were raised by written motion filed and ruled on before trial and not withdrawn or waived, and the defendant has the right of appeal.

_ is a plea-bargain case, but the trial court has given permission to appeal, and the defendant has the right of appeal.

X involves another appealable order: Application for Writ of Habeas Corpus.

_ is a plea-bargain case, and the defendant has NO right of appeal. _ the defendant has waived the right of appeal.

CC T i'ÿ l*~ ' i i II- ÿ

Judge Date Signed

I have received a copy of this certification. I have also been informed of my rights concerning any appeal of this criminal case, including any right to file a pro se petition for discretionary review pursuant to rule 68 of the Texas Rules of Appellate Procedure. I have been admonished that my attorney must mail a copy of the court of appeals' judgment and opinion to my last known address and that I have only 30 days in which to file a pro se petition for discretionary review in the court of appeals. Tex. R. App. P. 68.2. I acknowledge that, if I wish to appeal this case and if I am entitled to do so, it is my duty to inform my appellate attorney, by written communication, of any change in the address at which I am currently living or any change in my current prison unit. I understand that, because of appellate deadlines, if I fail to timely inform my appellate attorney of any change in my address, I may lose the opportunity to file a pro se petition for discretionary review.

Defendant / Defedafrt's'Counsel Mailing address: State BarofTX ID #24038120 Telephone number: Mailing address: 600 Scott St. Ste. 204, WF, TX Fax# (if any) 76310 Telephone number: 940-766-8199 Fax# 940-716-8561

41 No. 56208-A

THE STATE OF TEXAS * IN THE 30pi VS. * OF AT: _C4-±-~ // I O'CioOk M

* JEFFREY BRYAN PEYTON * WICHITA COUNTÿH'lM-A§1f )

PATTI FLGRE5, Cterk Disk Courts & County Courts at Lav/ Wichita County, Tjjxas ORDER SETTING PRETRIAL CON KfcREXCE.

1. The Pretrial Conference is scheduled for April 29, 2016 at 09:00am. The sole purpose of the Pretrial Conference is to announce to the Court whether the case will be disposed of by the entry of a plea of guilty or will remain on the trial docket. Counsel for the State is ORDERED to make its settlement offer, if any, to counsel for the Defendant at least seven (7) days in advance of the Pretrial Conference, and counsel for the Defendant is ORDERED to communicate the settlement offer, if any, to the Defendant at least twenty-four (24) hours prior to the Pretrial Conference.

2. Leave of Court is hereby granted for the filing of pretrial motions after the date of this order. subject to the deadline set out below.

SIGNED the 29th day of January, 2016. ( L c Ln UV 1

JUDGE PRESIDING

Criminal District Attorney's Office: JOIFN GILLESPIE BRENNON BRADY JEFFREY BRYAN PEYTON - JAILED

42 AT ' 4EED FOR RECORD NO. 56208-A 1* EB 0 2 ZJ16

--- r.PAJrLFi?,;iFS' Clerk Dist. Goÿ® & c%pty Courts at Law THE STATE OF TXAS § IN THE 30|h DlSlÿr —-- \ — — l_Deputy vs. § OF

JEFFREY BRYAN PEYTON § WICHITA COUNTY, TEXAS

DESIGNATION OF CLERK'S RECORD AND REQUEST FOR REPORTER'S RECORD

TO THE DISTRICT CLERK:

1. Index;

2. The Defendant's Application for Writ of Habeas Corpus;

3. The Order Defendant's Application for Writ of Habeas Corpus;

4. The written Notice of Appeal;

5. The notes of the reporter (reporter's record) a separate request

has been made to the reporter.

6. All other written papers maintained by you in the file of this cause;

7. This designation of record and request for reporter's record.

TO THE OFFICIAL COURT REPORTER:

The above-named defendant having previously been determined indigent

hereby requests that you prepare a reporter's record in this case for submission on

appeal. Defendant requests that you prepare this reporter's record in accordance

with the Texas Rules of Appellate Procedure and file this record in the appropriate

time (including any extensions). Defendant request that this record include all Designation of Record Page 3

43 proceedings taken by you in the hearing on Defendant's Application for Writ of

Habeas Corpus held on January 22, 2016.

A COPY OF THE DOCUMENT HAS BEEN HAND-DELIVERED TO THE OFFICIAL COURT REPORTER.

Respectfully submitted,

WICHITA COUNTY PUBLIC DEFENDER'S OFFICE 600 Scott Ave., Suite 204 Wichita Falls, Texas 76301 (940) 766-8199 (Tel.) (940) 716-8561 (Fax)

By: _ ._ ÿ : _ Brennon D. Brady State Bar No. 24038120

CERTIFICATE OF SERVICE *! On the J_ day of February, 2016, a copy of the foregoing document was served upon the Wichita County District Attorney, Wichita County Courthouse, Wichita Falls, Texas, by hand-delivery..

Brennhn D. Brady

Designation of Record Page J

44 STATE OF TEXAS Vs. CJ forÿOOA PcMÿTN 56208-AOffense £jr ImrU>\«J2 No. 9-5- ÿol lC.HijdnJY\ Dr Cup UVU. f <7te K

DISPOSITION OF CASE: DETAINER _ 1 (CRIMINAL) DISTRICT COURT . CRIMINAL DOCKET 2 TRANSFERRED TO _ Right 3 Thumb Print COMPLAINT FILED. BOND SET AT S 4

(Q-25-K M±L State's Attorney _ /ÿ ZZ- t& "fn iy A-ol H C — kyvfll - On Probation Revocation

/cL?<£ - UR. /C- Defendant's Attorney _ '•3H \L PTC oAeflLUJ - 2ÿu5arlÿran5pcr4 On Probation Revocation

_ Surety

Appeals Attorney

45 THESE ARE CRIMINAL DISTRICT COURT PAPERS AND MUST NOT BE REMOVED •e Spriuell Business Ft tuns • (<A40j (><Xv034t) The State of Texas ] County of Wichita ]

I, Patti Flores, Clerk of the 30th District Court of Wichita County, Texas, do hereby certify that the documents contained in this record to which this certification is attached are all of the documents specified by Texas Rule of Appellate Procedure 34.5 (a) and all other documents timely requested by a party to this proceeding under Texas rule of Appellate Procedure 34.5 (b).

GIVEN UNDER MY HAND AND SEAL at my office in Wichita County, Texas this 17™ day of FEBRUARY, 2016 Patti Flores, District Clerk

bv:/ J k /Deputy DIANE JENSEN

46 47 ACCEPTED 02-16-00029-CR SECOND COURT OF APPEALS FORT WORTH, TEXAS 3/23/2016 4:34:40 PM DEBRA SPISAK CLERK

NO. 02-16-00029-CR

COURT OF APPEALS FILED IN 2nd COURT OF APPEALS FORT WORTH, TEXAS SECOND DISTRICT OF TEXAS 3/23/2016 4:34:40 PM DEBRA SPISAK AT FORT WORTH Clerk

Ex Parte Jeffrey Peyton

APPLICANT’S BRIEF

On appeal from Cause Number 56208-A

In the 30th District Court Wichita County, Texas Honorable Robert Brotherton, Presiding

Brennon Brady Assistant Public Defender State Bar No. 24038120

600 Scott St. Ste. 204 Wichita Falls, Texas 76301 (940) 766-8199 (940) 716-8561 facsimile [email protected] Applicant’s Attorney

ORAL ARGUMENT IS NOT REQUESTED TABLE OF CONTENTS

TABLE OF CONTENTS .......................................................................................... ii

IDENTITIES OF PARTIES AND COUNSEL ....................................................... iii

INDEX OF AUTHORITIES.....................................................................................iv

STATEMENT OF THE CASE .................................................................................. 1

STATEMENT REGARDING ORAL ARGUMENT ............................................... 1

ISSUE PRESENTED ................................................................................................ 1

The trial judge erred in refusing to lower Peyton’s bail to a reasonable amount he could actually make ....................................................................... 1

STATEMENT OF THE FACTS .............................................................................. 2

SUMMARY OF ARGUMENT ................................................................................. 3

ARGUMENT ............................................................................................................. 3

PRAYER .................................................................................................................... 8

CERTIFICATE OF COMPLIANCE ....................................................................... 10

CERTIFICATE OF SERVICE ................................................................................ 10

ii IDENTITY OF PARTIES AND COUNSEL

Applicant:

Jeffrey Peyton AG6521 Wichita County Jail P.O. Box 8526 Wichita Falls, Texas 76307

Counsel:

Attorney for Applicant: Brennon Brady, Assistant Public Defender (Trial and Appeal) Wichita County Public Defender’s Office 600 Scott St. Rm. 204 Wichita Falls, Texas 76301 (940) 766-8199 (940) 716-8561 facsimile [email protected]

Attorney for the Appellee: John Gillespie, Assistant District Attorney (trial) Jennifer Ponder, Assistant District Attorney (appeal) Wichita County Courthouse 900 7th St. Wichita Falls, Texas 76301 (940) 766-8113 (940) 766-8177 facsimile [email protected]

iii INDEX OF AUTHORITIES

Cases

Ex parte Beard, 92 S.W.3d 566 (Tex. App.—Austin 2002, pet. ref d)..................................... 5

Clemons v. State, 220 S.W.3d 176 (Tex. App.—Eastland 2007, no pet.) ................................... 4

Ex parte Hunt, 138 S.W.3d 503 (Tex.App.—Fort Worth 2004, pet. ref’d) ............................ 4

Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990). .............................................. 4

Ex parte Rubac, 611 S.W.2d 848 (Tex. Crim. App. [Panel Op.] 1981) ................................ 4, 6

Texas Statutes and Constitution

TEX. CODE CRIM. PROC. art. 17.15 ....................................................................passim

TEX. CODE CRIM. PROC. art. 42.12 § 4(d)(1) ......................................................6, 7, 8

TEX. CONST. art. I § 11 ............................................................................................. 4

TEX. CONST. art. I § 13 ............................................................................................. 4

TEX. PEN. CODE § 15.03(d)(1) .............................................................................. 8, 1

iv STATEMENT OF THE CASE

This is an appeal from the denial of an application of writ of habeas corpus

seeking bail reduction.1 Police officers arrested Applicant (hereinafter-called

Peyton) on July 2, 2015, for a single count of solicitation to commit capital

murder.2 A magistrate set bail at $1,000,000.00.3 Peyton’s attorney filed an

application for writ of habeas corpus seeking bail reduction on December 7, 2015.4

The trial court held a hearing on the writ application on January 22, 2016.5 After

hearing evidence on the application, the trial court denied the application and bail

remained at $1,000,000.00.6 The trial court certified Peyton’s right to appeal and

Peyton timely filed his notice of appeal.7

STATEMENT REGARDING ORAL ARGUMENT

Peyton does not request oral argument due to the settled law governing the

issue presented in this case.

ISSUE PRESENTED

The trial court abused its discretion when it refused to reduce Peyton’s bail

to an amount he could actually make.

1 C.R. pg. 33. 2 C.R. pgs. 9-10. 3 C.R. pg. 12. 4 C.R. pg. 33. 5 C.R. pg. 37. 6 C.R. pg. 38. 7 C.R. pgs. 40, 41.

1 STATEMENT OF FACTS

Peyton is a disabled 58-year-old navy veteran who served his country from

1974 to 1978.8 Peyton is indigent and is represented by the Public Defender’s

Office.9 Peyton’s criminal history includes nothing over a class C misdemeanor.10

Peyton does not have any violence in his criminal history.11 Other than this

allegation no evidence was presented that Peyton has ever evaded law

enforcement, failed to appear for court, or that he is an actual danger to the

community.

Peyton and his wife Christina stand accused of attempting to hire a hit man

to murder their daughter’s boyfriend Vincent Cole.12 Police officers posed as

intermediaries between Peyton and the nonexistent hit man. Peyton paid the

undercover officer a $300.00 down payment and a final payment of $200.00 after

being shown a staged photo of the death of the intended victim. Police officers

arrested Peyton at the time he made the final payment. Bail was set at

$1,000,000.00 by the magistrate.13

8 R.R. pgs. 7-8. 9 C.R. pg. 14. 10 R.R. pg. 8. 11 R.R. pg. 8. 12 C.R. pgs. 9, 10. 13 C.R. pg. 12.

2 Peyton has lived in Wichita Falls for the past 25 years with his wife.14

Peyton testified that he is willing to comply with conditions of bail such as curfew,

home confinement, electronic monitoring, and drug testing if released.15 Peyton

testified he is able to make a reasonable bond of $10,000.00 by selling his

firearms.16 Peyton has limited income from the VA and his disability benefits,

which total $1240.00 per month.17 Peyton has approximately $1,500.00 in his bank

account.18

SUMMARY OF THE ARGUMENT

The trial court erred in refusing to reduce Peyton’s bail to an amount he

could actually make. When a presumed innocent citizen is detained pretrial, there

should be a strong presumption in favor of setting bail in an amount the citizen can

actually make absent a strong showing that the citizen is a substantial flight risk or

a danger to the community or victim.

ARGUMENT

Standard of Review

This Court reviews the trial court’s ruling on a motion to reduce bail under

an abuse of discretion standard.19 To determine whether abuse occurred, this Court

14 R.R. pg. 8. 15 R.R. pg. 10. 16 R.R. pg. 9. 17 C.R. pg. 15. 18 C.R. pg. 15. 19 Ex parte Rubac, 611 S.W.2d 848, 850 (Tex. Crim. App. [Panel Op.] 1981).

3 must decide whether the trial court acted without reference to any guiding rules or

principles, whether the act was arbitrary or unreasonable.20 The court must not

disturb the trial court’s ruling if it was within the zone of reasonable

disagreement.21

Applicable law

The Texas Constitution ensures that "all prisoners shall be bailable by

sufficient sureties, unless for capital offenses, when the proof is evident."22 A

defendant who is not facing a capital offense is entitled to reasonable bail, more

precisely, bail that is not excessive or oppressive.23 The guiding principles found in

article 17.15 of the Texas Code of Criminal Procedure are the legislative effort to

implement the constitutional right to bail.24 Article 17.15 leaves the setting of bail

to the discretion of the court or magistrate, but it sets forth five rules that, together

with the constitution, govern the exercise of that discretion.25 The statutory factors

that guide the courts are as follows:

1. The bail shall be sufficiently high to give reasonable assurance that the undertaking will be complied with.

20 Ex Parte Hunt, 138 S.W.3d 503, 505 (Tex. App—Fort Worth 2004, pet. ref’d) citing Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990). 21 Clemons v. State, 220 S.W.3d 176, 178 (Tex. App.—Eastland 2007, no pet.). 22 Tex. Const. art. I, § 11. 23 Tex. Const. art. I, § 13; Tex. Code Crim. Proc. Ann. art. 1.09 (West 2015). Tex. Code Crim. Proc. Ann. art. 17.15 (West 2015). 24 Tex. Code Crim. Proc. Ann. art. 17.15 (West 2015); Ex parte Beard, 92 S.W.3d 566, 568 (Tex. App.—Austin 2002, pet. ref'd). 25 Beard, 92 S.W.3d at 568.

4 2. The power to require bail is not to be so used as to make it an instrument of oppression.

3. The nature of the offense and the circumstances under which it was committed are to be considered.

4. The ability to make bail is to be regarded, and proof may be taken upon this point.

5. The future safety of a victim of the alleged offense and the community shall be considered.26

The primary purpose of pretrial bail is to secure presence of defendant.27

Courts may also consider other factors when assessing whether the amount of bail

is reasonable such as work record, community ties, length of residency, prior

criminal record, and aggravating circumstances alleged to have been involved in

the charged offense.28

Discussion and Analysis

Bail Sufficient to Assure Appearance but not Oppress

The first, second, and fourth factors of article 17.15 go to assuring the

defendant’s presence in court without oppression.29 Peyton will appear and face

these charges. Peyton testified that upon release he would live at the French

Quarter Apartments with a friend.30 He also has friends willing to take him to his

26 Tex. Code Crim. Proc. Ann. Art. 17.15 (West 2015). 27 Beard, 92 S.W.3d at 568. 28 Rubac, 611 S.W.2d at 849-50. 29 Tex. Code Crim. Proc. Ann. art. 17.15 (West 2015). 30 R.R. pg. 9.

5 court appearances.31 Peyton testified he is willing to submit to conditions of bond

such as curfew, home confinement, and electronic monitoring.32 Peyton offered

uncontroverted testimony that he is not a flight risk.33 Peyton testified that he

would only leave the jurisdiction to visit the VA hospital and would get permission

from the court prior to leaving.34 The State offered no evidence that Peyton is a

flight risk or that he is unlikely to appear for his court appearances. 35

Bail should not be used as an instrument of oppression, and the court should

consider Peyton’s ability to make bail.36 It is uncontroverted that Peyton cannot

post a $1,000,000.00 bond. Peyton was determined to be indigent by the court and

is represented by the Public Defender’s Office.37 Peyton’s limited monthly income

of $1240.00 comes from his VA and disability benefits.38 Peyton testified that he

would be able to make bond if his bail were reduced to $10,000.00.39 Peyton

testified he has a number of firearms that he is willing to sell in order to raise

31 R.R. pg 9 32 R.R. pg. 10. 33 R.R. pg. 10. 34 R.R. pgs. 10-11. 35 The State only offered the probable cause affidavit and asked the court to take judicial notice of the indictment. R.R. pg 12. 36 Tex. Code Crim. Proc. Ann. art. 17.15 (West 2015). 37 C.R. pgs. 14-15. 38 C.R. pg. 15; R.R. pg. 10. 39 R.R. pg. 9.

6 funds.40 Setting bail at $1,000.000.00 for an indigent defendant is the equivalent of

denying bail.

Nature and Circumstances of the Charged Offense

The nature of the offense and the circumstances under which it was

committed is the third factor in article 17.15.41 Peyton is accused of trying to hire a

hit man to kill his stepdaughter’s boyfriend.42 Solicitation of capital murder is a

non-capital first degree felony offense with a range of punishment of life or any

term of not more than 99 nor less than 5 years.43 Peyton is eligible for community

supervision should the jury choose to sentence him to 10 years or less.44

Solicitation of capital murder is a serious offense; however, the intended victim

was never harmed. A parent’s instinct is to protect their children from perceived

harm and the only reasonable explanation as to why a law abiding citizen would

engage in such behavior is to protect their child from a credible threat.

Future Safety of the Victim and the Community

Reasonable conditions of bail will ensure the safety of the intended victim.

Home confinement and electronic monitoring would assure Peyton not leave his

home except for court approved activities. The magistrate has already ordered

40 R.R. pg. 9 line 15. 41 Tex. Code Crim. Proc. Ann. art. 17.15 (West 2015). 42 C.R. pg. 6. 43 Tex. Penal Code § 15.03(d)(1)(West 2015). 44 Tex. Code Crim. Proc. Ann. art. 42.12 § 4(d)(1)(West 2015).

7 Peyton refrain from any contact with the victim.45 The safety of the community is

assured because Peyton has no prior felony convictions and aside from class C

misdemeanors, he has been a law-abiding citizen for his entire life.

Other Factors

Other factors to consider are that Peyton is a disabled 58-year-old honorably

discharged United States Navy veteran.46 The fact that he is a veteran who has

served his country honorably should carry great weight in favor of his pretrial

release. Peyton is a resident of Wichita Falls for the past 25 years.47 Peyton’s past

legal troubles consist of a few unpaid tickets and public intoxications, which is

nothing that could justify an oppressive bail of $1,000,000.00.

CONCLUSION AND PRAYER FOR RELIEF

1. When a presumed innocent citizen is detained pretrial, there should be a

strong presumption in favor of setting bail in an amount the citizen can

actually make absent a strong showing that the citizen is a substantial

flight risk or a danger to the community or victim.

2. Except in extremely rare circumstances, setting bail at $1,000,000.00 is

the equivalent of a denial of bail for an indigent defendant and we ask

that this Court make that finding.

45 C.R. pg. 13. 46 R.R. pg. 7-8. 47 R.R. pg. 8.

8 3. Given the relevant factors considered above, Peyton should have his bail

reduced to an amount he can actually make.

4. Peyton asks this Court to reverse the trial court and render bail set at

$10,000.00.

Respectfully submitted,

OFFICE OF THE PUBLIC DEFENDER WICHITA COUNTY, TEXAS

600 Scott Street, Ste. 204 Wichita Falls, Texas 76301 Phone: (940) 766-8199 Fax: (940) 716 8651 [email protected]

/s/ Brennon d. Brady Brennon D. Brady State Bar No. 24038120

ATTORNEY FOR APPLICANT

9 CERTIFICATE OF COMPLIANCE

Pursuant to Tex. R. App. P. 9 .4, the undersigned certifies that this brief complies with the type-volume limitations.

1. This entire appeal including footnotes has 2323 words as indicated by the word count function of the word processor.

2. This brief has been prepared in proportionately spaced typeface in Times New Roman, 14 pt. font except for footnotes which are in 12 pt. font.

3. If the Court requests, the undersigned will provide a print version of the brief and/ or copy of the word or line printout.

4. The undersigned understands a material misrepresentation in completing this certificate; or circumvention, of the type-volume limits, may result in the Court's striking the brief and imposing sanctions against the person signing the brief.

Respectfully submitted,

/s/ Brennon D. Brady Brennon D. Brady

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing brief was duly delivered to Jennifer Ponder, Assistant Criminal District Attorney, Wichita County Courthouse, Wichita Falls, Texas, 76301, on this the 23 day of March, 2016. By email delivery to [email protected].

BY: /s/ Brennon D. Brady Brennon D. Brady TX Bar No. 24038120 ATTORNEY FOR APPLICANT

10 ACCEPTED 02-16-00029-CR SECOND COURT OF APPEALS FORT WORTH, TEXAS 4/12/2016 3:24:02 PM DEBRA SPISAK CLERK

Cause No. 02–16–00029–CR

In the Court of Appeals, Second District FILED IN 2nd COURT OF APPEALS Fort Worth, Texas FORT WORTH, TEXAS 4/12/2016 3:24:02 PM DEBRA SPISAK Clerk Ex Parte Jeffrey Peyton

Appeal from the 30th District Court of Wichita County, Texas Cause No. 56,208-A, The Honorable Robert Brotherton Presiding

The State’s Brief

Maureen Shelton Wichita County Criminal District Attorney

John Gillespie John Brasher Asst. Criminal District Attorney Asst. Criminal District Attorney Wichita County, Texas Wichita County, Texas State Bar No. 24010053 State Bar No. 02907800 [email protected] [email protected]

900 Seventh Street Jennifer Ponder Wichita Falls, Texas 76301 Asst. Criminal District Attorney (940) 766-8113 phone Wichita County, Texas (940) 766-8530 fax State Bar No. 24083676 [email protected]

Attorneys for the State The State of Texas

Oral Argument Waived IDENTITY OF THE PARTIES & COUNSEL

Pursuant to Texas Rule of Appellate Procedure 38.2(a)(1)(A), the State adopts the Identities of Parties and Counsel set out in the APPELLANT’S BRIEF, with the following supplements:

John Brasher Assistant Criminal District Attorney, Wichita County Attorney for the State on appeal 900 Seventh Street Wichita Falls, Texas 76301

2 TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL……………………………………………... 2

TABLE OF CONTENTS……………………………………………………………... 3

INDEX OF AUTHORITIES……………………………………………………….….. 5

STATEMENT OF THE CASE……………………………………………………........ 7

STATEMENT REGARDING ORAL ARGUMENT ……………………………………... 7

ISSUE PRESENTED………………………………………………………………… 7

I. Whether the trial court abused discretion in refusing to lower Applicant’s bail of one million dollars incurred for solicitation of capital murder.

STATEMENT OF FACTS…………………………………………………………….8

SUMMARY OF THE ARGUMENT…………………………………………………… 11

ARGUMENT……………………………………………………………………….. 12

I. Applicant is not entitled to a bond reduction because he did not meet his burden to prove the trial court abused discretion by acting outside the zone of reasonable disagreement, nor did the trial court abuse its discretion when examining its decision in light of Article 17.15 and other factors……...12

A. Applicant has not provided sufficient information for this Court to rule in his favor…………………………………………………………………14

1. Applicant has not adequately briefed this issue because he included no authority to support his interpretation of the facts…………………. 14

2. Even if Applicant has adequately briefed this issue, he has not met his burden of proof to show the trial court abused discretion... 16

B. Application of Article 17.15 and other factors show that the trial court did not act outside of the zone of reasonable disagreement………………. 17

3 1. The bail set in this case is sufficiently high to ensure that Applicant will return for court settings without being oppressive………………...17

2. The violent nature and circumstances surrounding solicitation to commit capital murder merits a high bail……………………………... 18

3. The ability to afford bail is only one factor among many, and not dispositive of excessive bail…………………………………………… 20

4. The intended and victim and the community would be subject to risk if Applicant’s bond was lowered significantly………………………... 20

5. The remaining Rubac factors do not merit a bond reduction…………. 21

PRAYER…………………………………………………………………………... 22

CERTIFICATE OF COMPLIANCE……………………………………………………. 23

CERTIFICATE OF SERVICE………………………………………………………… 23

4 INDEX OF AUTHORITIES

Cases Balboa v. State, 612 S.W.2d 553 (Tex. Crim. App. 1981) ......................................12

Bowers v. State, No. 202250CR, 2003 WL 22026428, at * 8 (Tex. App.Fort Worth Aug. 29, 2003, pet. ref’d) (not designated for publication). .....................13 Ex Parte Charlesworth, 600 S.W.2d 316 (Tex. Crim. App. [Panel Op.] 1980).... 12, 13, 20

Ex Parte Davis, 147 S.W.3d 546 (Tex. App.—Waco 2004, no pet.) ......................18 Ex Parte Harris, 733 S.W.2d 712 (Tex. App.—Austin 1987, no pet.) ...................18

Ex Parte Hunt, 138 S.W.3d 503 (Tex. App.—Fort Worth 2004, pet. ref’d) ...........19 Ex Parte Miller, 631 S.W.2d 825 (Tex. App.—Fort Worth 1982, pet. ref’d).........20

Ex Parte Presswood, Nos. 14–07–000949–50–CR, 2008 WL 2030904 (Tex. App.—Houston [14th Dist.] May 13, 2008, no pet.) (not designated for publication) ...........................................................................................................17

Ex Parte Rodriguez, 595 S.W.2d 549 (Tex. Crim. App. [Panel Op.] 1980) ...........12 Ex Parte Rubac, 611 S.W.2d 848 (Tex. Crim. App. 1981) ........................ 12, 13, 14

Gonzales v. State, 477 S.W.3d 475 (Tex. App.Fort Worth 2015, pet. ref’d) ......13

Jobe v. State, No. 11–15–00220–CR, -- S.W.3d ---, 2016 WL 269221 (Tex. App.—Eastland Jan. 21, 2016, pet. ref’d) ............................................................21

Johnson v. State, 263 S.W.3d 405 (Tex. App.—Waco 2008, pet. ref’d) ................14

Maldonado v. State, 999 S.W.2d 91 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d) .....................................................................................................................17 Saldano v. State, 232 S.W.3d 77 (Tex. Crim. App. 2007) ......................................14

United States v. Salerno, 481 U.S. 739 (1987) ........................................................12 Walder v. State, 85 S.W.3d 824 (Tex. App.—Waco 2002, no pet.) ........................15

5 Wood v. State, 18 S.W.3d 642 (Tex. Crim. App. 2000) ..........................................15 Wyatt v. State, 23 S.W.3d 18 (Tex. Crim. App. 2000) ............................................14

Statutes TEX. CODE CRIM. P. art 17.15............................................................................ 12, 13

TEX. PENAL CODE § 12.32 ........................................................................................19 TEX. PENAL CODE § 15.03. .......................................................................................18

TEX. PENAL CODE § 19.01 ........................................................................................22 TEX. PENAL CODE § 19.03........................................................................................22

Other TEX. CONST. art. §§ 11, 13 .......................................................................................12

TEX. R. APP. P. art 38.1 ............................................................................................14 U.S. CONST. amend. VIII .........................................................................................12

6 STATEMENT OF THE CASE

Applicant appeals trial court’s denial of his application for writ of habeas

corpus to reduce bail.1 Applicant was arrested for Solicitation to commit Capital

Murder on July 2, 2015.2 A magistrate set Applicant’s bail at one million dollars.3

On December 7, 2015, Applicant filed a Writ of Habeas Corpus seeking reduction

of his bail.4 The trial court denied Applicant’s Writ on January 22, 2016. 5 This

appeal followed.

STATEMENT REGARDING ORAL ARGUMENT The State waives oral argument.

ISSUE PRESENTED

I. Whether the trial court abused discretion in refusing to lower Applicant’s bail of one million dollars incurred for solicitation of capital murder.

1 C.R. 1:38. 2 C.R. 1:11. 3 C.R. 1:12. 4 C.R. 1:33. 5 C.R. 1:38. 7 STATEMENT OF FACTS

On June 26, 2015, a cooperating witness with Wichita Falls Police

Department contacted the department about a possible murder for hire.6 The

cooperating witness met with John Laughlin with the Wichita Falls Police

Department, and provided recording of conversations with Applicant and his wife,

in which they asked the cooperating witness to help locate a person to kill their

daughter’s boyfriend.7

Officer Karen Wade of the Organized Crime Unit posed as an intermediary

between Applicant and his wife, and the hit man.8 Applicant and his wife told Wade

they were willing to pay to have their daughter’s boyfriend, Vincent Cole,

permanently gone, and arranged a meeting with Wade.9 Wade recorded all

conversations with Applicant and his wife.10 The cooperating witness drove

Applicant’s wife to the bank to get money, and Applicant’s wife clearly stated, “I

want him gone. Not out of town gone. I want him dead gone.”11

Wade contacted Applicant by phone, stating that it would cost more than $300

for the murder.12 Applicant then offered $500.13 On July 2, 2015, Applicant and his

6 R.R. 3:7, State’s Exhibit 1. 7 Id. 8 Id. 9 Id. 10 Id. 11 Id. 12 Id. 13 Id. 8 wife met with Wade, and gave her $300 up front for the murder, and promised

another $200 after the intended victim was killed.14 Wade offered them the

opportunity to back out of the plan, but they refused.15 Wade and the intended victim

then staged a photograph where the intended victim appeared dead.16 Wade then

met with Applicant and showed him the photo.17 Believing the intended victim to

be murdered, Applicant then paid Wade another $200, and was promptly arrested.18

At Applicant’s habeas hearing, the State presented no witnesses, but requested

and was granted judicial notice of the indictment.19 The State admitted State’s

Exhibit 1, the affidavit for Applicant’s arrest warrant.20

Applicant testified as to the following: (1) he is a veteran; 21 (2) his criminal

history consists only of Class C misdemeanors;22 (3) he has lived in Wichita Falls

for the past twenty-five years;23 (4) he cannot make one million dollar bail;24 (5) he

would be able to make a ten thousand dollar bail by selling his firearms; 25 (6) he is

unable to work and receives monthly income from Veteran’s Affairs and Social

14 R.R. at 3:8. 15 Id. 16 Id. 17 Id. 18 Id. 19 R.R. 2:13. 20 Id. 21 R.R. 2:7–8. 22 R.R. 2:8. 23 R.R. 2:8–9. 24 R.R. 2:9. 25 Id. 9 Security disability;26 (7) he does not own an operational vehicle, and would get to

court by obtaining rides with friends;27 (8) he would be willing to comply with bail

conditions of curfew, home confinement, electronic monitoring, and drug testing;28

(9) he has no intention to flee the jurisdiction29 and intends to fight the charges;30

and, (10) he has no other connections in Wichita Falls other than his wife.31

26 R.R. 2:10. 27 R.R. 2:9. 28 R.R. 2:10. 29 Id. 30 R.R. 2:11. 31 Id. 10 SUMMARY OF THE ARGUMENT

Applicant is responsible for proving that the trial court abused its discretion

in refusing to lower Applicant’s one million dollar bond for solicitation to commit

capital murder. Applicant was required to demonstrate that the trial court’s decision

fell outside the zone of reasonable disagreement. However, due to Applicant’s lack

of authority, this issue was inadequately briefed and Applicant cannot prove abuse

of discretion.

Even if Applicant’s issue was adequately briefed, when applying the

guidelines found in Article 17.15 of the Texas Code of Criminal Procedure and the

factors set forth by the Court of Criminal Appeals in Ex Parte Rubac, the trial court’s

decision is not outside the zone of reasonable disagreement.

11 ARGUMENT

Trial courts have the discretion to set bail, but that discretion is dictated by the

constitution and code of criminal procedure.32 The purpose of bail is to ensure a

defendant’s presence at his trial.33 When determining bail, courts must balance this

interest against the defendant’s presumption of innocence.34 At trial, the burden is

on the person seeking to lower the bail to prove that bail is excessive.35 Bail may be

considered excessive if it is greater than reasonably necessary to satisfy the

government’s legitimate interests.36

When determining whether the amount of bail is excessive, reviewing courts

determine whether the trial court abused its discretion.37 Although he states the

correct standard,38 Applicant does not apply it in his brief.39 Further, the standard is

not what is framed in Applicant’s Issue Presented—the standard is not abuse of

discretion by failing to lower the bail to an amount Applicant could afford.40 Rather,

32 U.S. CONST. amend. VIII; TEX. CONST. art. §§11, 13; TEX. CODE CRIM. P. art 17.15. 33 Ex Parte Rodriguez, 595 S.W.2d 549, 550 (Tex. Crim. App. [Panel Op.] 1980). 34 Balboa v. State, 612 S.W.2d 553, 557 (Tex. Crim. App. 1981). 35 Ex Parte Charlesworth, 600 S.W.2d 316, 317 (Tex. Crim. App. [Panel Op.] 1980). 36 United States v. Salerno, 481 U.S. 739, 753–54 (1987). 37 Ex Parte Rubac, 611 S.W.2d 848, 849–50 (Tex. Crim. App. 1981). 38 Applicant’s Brief at 3–4. 39 See generally, Applicant’s Brief. 40 Applicant’s Brief at 1. 12 an appellate court will find abuse of discretion if its decision falls outside the zone

of reasonable disagreement.41 Reviewing courts determine whether “the court acted

without reference to any guiding rules or principles,” or “whether the act was

arbitrary and unreasonable” against the criteria used to reach a decision.42

Ultimately, at the appellate level, the person challenging the trial court ruling has the

burden to prove that the trial court abused its discretion.43

Texas Code of Criminal Procedure Article 17.15 sets for the statutory factors

courts consider when determining bail:

1. The bail shall be sufficiently high to give reasonable assurance that the undertaking will be complied with. 2. The power to require bail is not to be so used as to make it an instrument of oppression. 3. The nature of the offense and the circumstances under which it was committed are to be considered. 4. The ability to make bail is regarded, and proof may be taken upon this point. 5. The future safety of a victim of the alleged offense and the community shall be considered.44

In Ex Parte Rubac, the Court of Criminal Appeals held that the primary factors in

determining whether bail is excessive are the length of the sentence and the nature

of the offense.45 Additional factors to be considered are the Applicant’s work record,

family ties, length of residency, ability to make bond, prior criminal record,

41 Gonzales v. State, 477 S.W.3d 475, 479 (Tex. App.Fort Worth 2015, pet. ref’d) 42 Montgomery v. State, 810 S.W. 372, 380 (Tex. Crim. App. 1990). 43 Charlesworth, 600 S.W.2d at 317. 44 TEX. CODE CRIM. P. art. 17.15. 45 Rubac, 611 S.W.2d at 849. 13 conformity with previous bond conditions, other outstanding bonds, and any

aggravating factors of the offense.46 In addition, courts may consider the punishment

permitted for the alleged offenses when determining bail.47

A. Applicant has not provided sufficient information for this Court to rule in his favor.

1. Applicant has not adequately briefed this issue because he included no authority to support his interpretation of the facts.

Article 38.1(i) of the Texas Rules of Appellate Procedure requires that the

Argument section of an appellant’s brief, “contain a clear and concise argument for

the contentions made, with appropriate citations to authorities and to the record.”48

An issue that is inadequately briefed “present[s] nothing for review.”49 Courts

routinely hold an issue is inadequately briefed where a party “points [] to nothing on

the record, makes no argument, and cites no authority to support []his proposition.”50

However, failure to cite authority is sufficient to find an issue to be inadequately

briefed.

In Wood v. State, the Court of Criminal Appeals held an appellant’s issue to

be inadequately briefed because he cited zero authority to support his position, nor

46 Id. at 849–50. 47 Ex Parte Rodriguez, 595 S.W.2d 549, 550 (Tex. Crim. App. 1980). 48 TEX. R. APP. P. art 38.1(i). 49 Saldano v. State, 232 S.W.3d 77, 107 (Tex. Crim. App. 2007). 50 Wyatt v. State, 23 S.W.3d 18, 23 n. 5 (Tex. Crim. App. 2000); Johnson v. State, 263 S.W.3d 405, 416–17 (Tex. App.—Waco 2008, pet. ref’d); Saldano, 232 S.W.3d at 107. 14 did he develop his argument.51 The Court reached this conclusion even though

Appellant made an argument and cited to the record.52

In Walder v. State, the Waco Court of Appeals found three separate issues

inadequately briefed.53 The first issue was inadequately briefed because it did not

identify the appropriate standard for appellate review and only cited two authorities,

even though the appellant identified corresponding evidence and the legal principle

at issue.54 The second issue was also inadequately briefed due to the appellant’s

failure to identify the appellate standard of review or cite to any authorities.55 In the

third issue, the appellant did not fully set out the appropriate standard of review. 56

In addition, although the appellant cited three cases, he only relied on one to make

his argument.57

In the case at hand, Applicant’s issue or argument is either, “The trial court

erred in refusing to reduce Peyton’s bail to an amount he could actually make,” 58 or

the trial court abused discretion when it refused to lower Applicant’s bond. 59

51 Wood v. State, 18 S.W.3d 642, 650–51 (Tex. Crim. App. 2000) (finding that the appellant insufficiently briefed the issue of equal protection due to lack of authority and no allegations tracking the requirements required to receive equal protection). 52 Id. 53 Walder v. State, 85 S.W.3d 824, 828–29 (Tex. App.—Waco 2002, no pet.). 54 Id. at 828. 55 Id. 56 Id. 57 Id. at 829. 58 Applicant’s Brief at 3 (appearing in the Issue Presented Section). 59 See Applicant’s Brief at 3–4 (stating the standard of review is abuse of discretion—whether the trial court’s ruling was outside the zone of reasonable disagreement). 15 Applicant then follows with a section of applicable law, citing Article 17.15 and the

Rubac factors.60 However, once he reaches his Discussion and Analysis section,

Applicant does not cite to a single case61 to demonstrate what the zone of reasonable

disagreement is on any of the Article 17.15 or Rubac factors; he simply categorizes

facts under different factors.62

2. Even if Applicant has adequately briefed this issue, he has not met his burden of proof to show the trial court abused discretion.

Applicant cannot prove that the trial court acted outside of the zone of

reasonable agreement, if he does not illustrate the boundaries of that zone. Even

though Applicant’s Discussion and Analysis is rife with citations to the record,63 he

failed to include any citations to case law that demonstrate what the reasonable zone

of disagreement is. Therefore, he cannot prove whether the trial court acted outside

of the zone of reasonable disagreement. In addition, Applicant failed to provide case

law to demonstrate that the trial court acted in an arbitrary or capricious manner.

At the trial level, the record reflects that the trial court heard the testimony of

Applicant, received an exhibit from the State, took judicial notice of the indictment,

and then went off the record before making its decision.64 Nothing about the hearing

60 Applicant’s Brief at 4–5. 61 Applicant includes numerous cites to the Clerk’s and Reporter’s Records. 62 See Applicant’s Brief at 5–8. 63 Applicant’s Brief at 5–8. 64 R.R. 2:6–13. 16 suggests the trial court’s decision to be arbitrary or capricious. Therefore, Applicant

has failed to reach his burden of showing Applicant’s bond was excessive.

B. Application of Article 17.15 and other factors show that the trial court did not act outside of the zone of reasonable disagreement.

At the hearing, Applicant failed to prove that the bail amount was excessive.

In fact, both the Article 17.15 factors and the Rubac factors demonstrate that the trial

court acted within the zone of reasonable disagreement, and not arbitrary or

capricious.

1. The bail set in this case is sufficiently high to ensure that Applicant will return for court settings without being oppressive.

Although he has lived in the city for the last twenty-five years, Applicant has

few remaining family ties in the area, does not have an established job, and does not

own or lease property in the county.65 Given the fact that Applicant’s was his

accomplice,66 and he failed to even mention his daughter at the habeas hearing,67 it

is unlikely that family ties would keep him in the area.

Courts have also considered whether the individual seeking a lower bail

owned any real property when exploring an individual’s ties to the area.68 Applicant

presented zero testimony that he had any property interest in Wichita County—even

65 See R.R. 2:8–11. 66 See R.R. 3:7–8. 67 See R.R. 2:7–12. 68 Maldonado v. State, 999 S.W.2d 91, 95 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d); Ex Parte Presswood, Nos. 14–07–000949–50–CR, 2008 WL 2030904, at *1 (Tex. App.—Houston [14th Dist.] May 13, 2008, no pet.) (not designated for publication). 17 demonstrating a lack of residence of his own, since he would have to live with a

friend in an apartment, potentially without knowledge of the management agency.69

Therefore, there is little incentive for Applicant to remain in the area.

Further, even if Applicant remained in the area, the court received little

assurance that Applicant would be able to attend hearings. Applicant testified that

he does not own a working vehicle, and would be dependent upon the goodwill of

friends to provide rides so that he could attend court settings.70 Although Applicant

testified that he was willing attend court hearings,71 even he has no way to guarantee

his appearance.

Bail becomes “oppressive” when it is “based on the ‘assumption that [the

accused cannot] afford bail in that amount and for the express purpose of forcing

[the accused] to remain incarcerated pending [trial].’”72 However, nothing on the

record indicates that the trial court reached its decision on this basis.73

2. The violent nature and circumstances surrounding solicitation to commit capital murder merits a high bail.

Solicitation to commit capital murder is a first degree felony. 74 This Court

has held that commission of murder for hire and conspiracy to commit murder were

69 See R.R. 3:9–10. 70 R.R. 2:9. 71 R.R. 2:11. 72 Ex Parte Davis, 147 S.W.3d 546, 549 (Tex. App.—Waco 2004, no pet.) (quoting Ex Parte Harris, 733 S.W.2d 712, 714 (Tex. App.—Austin 1987, no pet.). 73 Cf. Harris, 733 S.W.2d at 714. 74 TEX. PENAL CODE § 15.03(a). 18 violent crimes, and because those punishments could merit lengthy sentences, the

trial court could have properly concluded the bond amounts were reasonable.75

Here, Applicant and his wife were actively trying to find someone to murder

their daughter’s boyfriend.76 But for the fact that Applicant and his wife were

connected to peace officers instead of a murderer, this would have resulted in at least

one death. Due to the violent nature of the crime, and the fact Applicant is eligible

for imprisonment for life or five to ninety-nine years in the Texas Department of

Criminal Justice and a ten thousand dollar fine,77 upholding the bail amount was

within the zone of reasonable disagreement.

The circumstances surrounding the attempted murder also demonstrate that

the bail amount is within the zone of reasonable agreement. Applicant and his wife

had been planning the intended victim’s murder for at least a week prior to

Applicant’s arrest.78 Applicant even had the opportunity to back out of the plot, but

he insisted he and his wife wanted to go through with the plan.79

75 Ex Parte Hunt, 138 S.W.3d 503, 506 (Tex. App.—Fort Worth 2004, pet. ref’d). 76 See R.R. 3:7–8. 77 TEX. PENAL CODE § 12.32. 78 See R.R. 3:7–8. 79 R.R. 3:7. 19 3. The ability to afford bail is only one factor among many, and not dispositive of excessive bail.

Applicant relies almost exclusively on the premise that because Applicant

cannot afford his current bond, or anything greater than a $10,000, any bond greater

than $10,000 is excessive and oppressive.80

Just because a defendant cannot afford to pay the bond set, even if the

individual is indigent, does not automatically mean that the bail is excessive. 81 “If

the ability to make bond in a specified amount controlled, then the role of the trial

court in setting bond would be completely eliminated, and the accused would be in

the unique posture of determining what his bond should be.”82

4. The intended and victim and the community would be subject to risk if Applicant’s bond was lowered significantly.

Applicant claims that the intended victim and community would be safe if he

was confined to his home with electronic monitoring.83 However, in doing so,

Applicant ignores the facts of the crime he is alleged to have committed. From the

comforts of his own home, or the apartment of the unnamed friend he intends to stay

with,84 Applicant could once again attempt to solicit capital murder.

80 Applicant’s Brief at 1, 3, 6, 8. 81 Charlesworth, 600 S.W.2d at 317. 82 Ex Parte Miller, 631 S.W.2d 825, 827 (Tex. App.—Fort Worth 1982, pet. ref’d). 83 Applicant’s Brief at 7–8. 84 See R.R. 3:9–10. 20 Applicant’s willingness to submit to drug monitoring, electronic monitoring,

a curfew, and home confinement should be given little weight, since these limitations

would provide virtually no protection to the intended victim and community.

Applicant has even provided an ongoing motive to try to solicit the murder of his

daughter’s boyfriend again, “A parent’s instinct is to protect their children from

perceived harm…”85 Although it is still possible for Applicant to solicit capital

murder from the jail, it is far less likely given the level of supervision and scrutiny

provided he would receive.

5. The remaining Rubac factors do not merit a bond reduction.

Applicant’s work record and lack of remaining family ties are not in favor of

a bond reduction. However, his lack of prior criminal history and outstanding bonds

are in favor of a bond reduction.

In addition, “appellate courts often compare bail amounts in other cases

involved offenses of the same degree.”86 The Eastland Court of Appeals recently

examined a number of cases involving capital murder or murder which upheld an

amount around one million dollars.87 Although not capital, this case is a first degree

85 Applicant’s Brief at 7. 86 Jobe v. State, No. 11–15–00220–CR, -- S.W.3d ---, 2016 WL 269221, at *3 (Tex. App.— Eastland Jan. 21, 2016, pet. ref’d). 87 Id. (citing Ex Parte Lewis, No. 10–13–00448–CR, 2014 WL 2810629, at *1 (Tex. App.—Waco June 19, 2014, pet. ref’d) (not designated for publication) (approving a one million dollar bond for capital murder); Ex Parte Green, No. 02–13–00474–CR, 2014 WL 584960, at *1 (Tex. App.— Fort Worth Feb, 13, 2014, no pet.) (not designated for publication) (approving a bail of one million dollars for murder); Ex Parte Guerra, 383 S.W. 229, 234 (Tex. App.—San Antonio 2012, no pet.) 21 felony that, but for the fact that Applicant contacted the police instead of a hit man,

would have resulted in a murder. Applicant had the required intent to carry out a

capital murder,88 and paid money believing capital murder had been carried out.89

Therefore, a one million dollar bond for solicitation to commit capital murder is not

outside the zone of reasonable disagreement.

PRAYER

The State prays that the Court of Appeals, Second District, find the trial

court did not abuse discretion and affirm the decision of the 30th District Court of

Wichita County, Texas.

Respectfully Submitted,

Maureen Shelton Criminal District Attorney Wichita County, Texas

/s/ Jennifer Ponder Jennifer Ponder Assistant Criminal District Attorney Wichita County State Bar No. 24083676 900 7th Street Wichita Falls, Texas 76301

(accepting a nine hundred and fifty thousand dollar bail for capital murder, aggravated robbery, and unauthorized use of a vehicle); Ex Parte Gonzalez, 383 S.W.3d 160, 161 (Tex. App.—San Antonio 2012, pet ref’d) (setting a one million five hundred thousand dollar bond for capital murder); Ex Parte Jackson, 257 S.W.3d 520, 522–23 (Tex. App.—Texarkana 2008, no pet.) (authorizing a bail of three-quarters of a million dollars for capital murder); Ex Parte Garcia, No. 09–06–543–CR, 2007 WL 846571, at *1 (Tex. App.—Beaumont Mar. 21, 2007, no pet.) (not designated for publication) (approving a nine hundred and fifty thousand dollar bond for murder)). 88 Compare TEX. PENAL CODE §§ 19.01(b)(1), 19.03(a)(3) with R.R. 3:7–8. 89 R.R. 3:8. 22 CERTIFICATE OF COMPLIANCE

I, the undersigned, certify that this document was produced on a computer

using Microsoft Word and contains 2,859 words, as determined by the computer

software’s word-count function, excluding the sections of the document listed in

Texas Rule of Appellate Procedure 9.4(i)(1).

/s/ Jennifer Ponder Jennifer Ponder

CERTIFICATE OF SERVICE

I, the undersigned, certify that on Tuesday, April 12, 2016, I served a copy of

the State’s Brief on the parties listed below by electronic service and that the

electronic transmission was reported as complete. My e-mail address is

[email protected].

Brennon Brady Attorney for Applicant Assistant Public Defender 600 Scott Street, 2nd Floor, Rm 204 Wichita Falls, Tx 76301 [email protected]

/s/ Jennifer Ponder Jennifer Ponder

23 COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO. 02-16-00029-CR

EX PARTE JEFFREY PEYTON

------------

FROM THE 30TH DISTRICT COURT OF WICHITA COUNTY TRIAL COURT NO. 56208-A

------------

ORDER STAYING ISSUANCE OF MANDATE

------------

Applicant Jeffrey Peyton appealed from the trial court’s denial of his pretrial

application for writ of habeas corpus seeking a reduction of his $1 million bail.

We reversed the trial court’s judgment and remanded this case to the trial court

to set a reasonable bail; to determine what additional conditions, if any, should be

imposed; and to allow the State and Peyton to present any additional evidence or

argument that the trial court deemed relevant to each of the article 17.15 and

Rubac factors. See Tex. Code Crim. Proc. Ann. art. 17.15 (West 2015); Ex parte

Rubac, 611 S.W.2d 848, 849–50 (Tex. Crim. App. [Panel Op.] 1981). The State has now filed a motion for stay of mandate. See Tex. R. App. P.

31.4(a)(2). The motion’s certificate of conference states that Peyton is opposed

to the motion, but he did not file a response.

After considering the motion, as well as the State’s petition for

discretionary review appended to the motion, we grant the motion and stay our

mandate. See Tex. R. App. P. 31.4(b)(1). The mandate will issue in due course

after disposition of the State’s petition for discretionary review in the Texas Court

of Criminal Appeals. See Tex. R. App. P. 18.1(a)(2), 18.6.

The clerk of this court is directed to transmit a copy of this order to the

attorneys of record and to forward the petition for discretionary review to the clerk

of the Texas Court of Criminal Appeals.

DATED June 8, 2016.

PER CURIAM

2 ACCEPTED 02-16-00029-CR SECOND COURT OF APPEALS FORT WORTH, TEXAS 5/20/2016 3:42:41 PM DEBRA SPISAK CLERK

No. 02–16–00029–CR

Court of Appeals, FILED IN 2nd COURT OF APPEALS Second District of Texas, FORT WORTH, TEXAS Fort Worth 5/20/2016 3:42:41 PM DEBRA SPISAK Clerk Ex Parte § On Appeal in No. 56,208-A § § From the 30th District Court § Jeffrey Peyton § Of Wichita County, Texas § § The Hon. Robert F. Brotherton, Presiding

STATE’S MOTION FOR STAY OF MANDATE

TO THE COURT OF APPEALS, SECOND DISTRICT:

Pursuant to Rule 31.4 of the Texas Rules of Appellate Procedure, the State of

Texas moves that this Court stay the issuance of its mandate to allow time for the

Court of Criminal Appeals to act on the State’s Petition for Discretionary Review,

which is appended to this Motion. The State’s Motion is being timely made within

15 days of the Court’s May 5, 2016 opinion.

Rule 31.4 requires a showing of good faith. The State files its Petition for

Discretionary Review based upon case law research, arguing that the gravity of the

offense was minimized, and that this Court deviated from the proper standard of

review by rejecting the trial court’s implicit finding that Appellant lacked credibility.

1 The State respectfully requests this Court grant the State’s Motion for Stay of

Mandate.

Respectfully Submitted,

Maureen Shelton Criminal District Attorney Wichita County, Texas

/s/ Jennifer Ponder

Jennifer Ponder Assistant Criminal District Attorney Wichita County State Bar No. 24083676 900 7th Street Wichita Falls, Texas 76301 Tel.: (940)766-8113 Fax: (940)766-8177

2 CERTIFICATE OF CONFERENCE

I certify that on or about May 19, 2016, Brennon Brady, counsel for Appellant,

indicated he opposed the State’s Motion for Stay of Mandate.

/s/ Jennifer Ponder

Jennifer Ponder

CERTIFICATE OF SERVICE

I, the undersigned, certify that on Friday, May 20, 2016, I served a copy of the

State’s Motion for Stay of Mandate, and attached Petition for Discretionary Review

on the parties listed below by electronic service and that the electronic transmission

was reported as complete. My e-mail address is [email protected].

Brennon Brady 600 Scott Street, Rm 204 Wichita Falls, TX 76301 (940)766-7119 [email protected]

State Prosecuting Attorney P.O. Box 13046 Austin, Texas 78711 [email protected]

/s/ Jennifer Ponder Jennifer Ponder

3 Cause No. ____________

In the Court of Criminal Appeals FILED IN 2nd COURT OF APPEALS Of Texas FORT WORTH, TEXAS 5/20/2016 3:42:41 PM DEBRA SPISAK Ex parte Jeffrey Peyton, Clerk Appellant

From the Court of Appeals, Second District Fort Worth, Texas No. 02–16–00029–CR Appeal from Wichita County

The State’s Petition for Discretionary Review

Maureen Shelton Wichita County Criminal District Attorney

John Gillespie John Brasher First Asst. Criminal District Attorney Asst. Criminal District Attorney Wichita County, Texas Wichita County, Texas State Bar No. 24010053 State Bar No. 02907800 [email protected] [email protected]

900 Seventh Street Jennifer Ponder Wichita Falls, Texas 76301 Asst. Criminal District Attorney (940) 766-8113 phone Wichita County, Texas (940) 766-8530 fax State Bar No. 24083676 [email protected]

Attorneys for the State The State of Texas

Oral Argument Waived IDENTITY OF THE JUDGE, PARTIES & COUNSEL

Hon. Robert Brotherton Presiding Judge, 30th District Court, Wichita County 900 Seventh Street Wichita Falls, Texas 76301

Jeffrey Peyton Appellant, represented by Brennon Brady Assistant Public Defender, Wichita County Attorney for Jeffrey Peyton, at Trial and on Appeal 600 Scott Street, 2nd Floor, Room 204 Wichita Falls, Texas 76301

John Gillespie First Assistant Criminal District Attorney, Wichita County Attorney for the State at Trial & Appeal 900 Seventh Street Wichita Falls, Texas 76301

John Brasher Assistant Criminal District Attorney, Wichita County Attorney for the State on Appeal 900 Seventh Street Wichita Falls, Texas 76301

Jennifer Ponder Assistant Criminal District Attorney, Wichita County Attorney for the State on Appeal 900 Seventh Street Wichita Falls, Texas 76301

2 TABLE OF CONTENTS

IDENTITY OF JUDGE, PARTIES AND COUNSEL……………………………………................................. 2

TABLE OF CONTENTS……………………………………………………………....................................... 3

INDEX OF AUTHORITIES……………………………………………………….…………………………………….. 6

STATEMENT OF THE CASE……………………………………………………………………………………………8

STATEMENT REGARDING ORAL ARGUMENT ……………………………………................................. 8

STATEMENT OF PROCEDURAL HISTORY…………………………………………................................... 8

GROUNDS FOR REVIEW……..……………………………………………………………………………………… 9

I. The Second Court of Appeals erred by minimizing the gravity of this offense. The uncontroverted evidence showed Appellant’s actus reus and mens rea were identical to a Capital Murder for Hire, except that he hired the wrong hit man. Additionally, the Second Court minimized the community safety threat by ignoring that the person Appellant wanted murdered is still alive and at risk.

ARGUMENT……………………………………………………………………………………………………………. 10

3 I. The Second Court of Appeals erred by minimizing the gravity of this offense. The uncontroverted evidence showed Appellant’s actus reus and mens rea were identical to a Capital Murder for Hire, except that he hired the wrong hit man. Additionally, the Second Court minimized the community safety threat by ignoring that the person Appellant wanted murdered is still alive and at risk.………………………………………………………………………………………………… 10

II. Rejecting the trial court’s implicit finding that Appellant lacked credibility, the Second Court of Appeals deviated from the proper standard of review in holding that the trial court abused its discretion…………………………………………………................................................... 12

A. The Appellate Court grossly undervalued Appellant’s danger to the victim and community………………………………………………………………. 14

B. The Court of Appeals erred by holding that the trial court received reasonable assurance of the Appellant’s presence at trial court appearances……………………………………………………………………….. 15

1. The Court of Appeals disregarded the trial court’s implicit credibility assessment of the Appellant……...………………… 16

2. The trial court erred by failing to defer to the trial judge’s determination of the weight to be given the evidence……………………………………………………………………………………. 17

C. The Court of Appeals conflated factors two and four of Article 17.15 by reasoning that because Appellant was unable to pay his bond, that his bond was oppressive.………………………………………………. 18

D. The Court of Appeals did not properly consider the nature and circumstances of the Appellant’s charged offense……………………….. 20

4 E. By relying on Appellant’s testimony, the Court of Appeals replaced the trial court’s credibility assessment of Appellant with its own, causing it to find that the Rubac factors weighed in favor of a lower bond………………………………………………………………………. 21

PRAYER…………………………………………………………………………........................................... 23

CERTIFICATE OF COMPLIANCE………………………………………………………………………………………24

CERTIFICATE OF SERVICE……………………………………………………………………………………………. 24

APPENDIX : Ex parte Peyton, No. 02–16–00029–CR, 2016 WL 2586698 (Tex. App.— Fort Worth May 5, 2016).

5 INDEX OF AUTHORITIES

Cases

Cooley v. State, 232 S.W.3d 228 (Tex. App.—Houston [1st Dist.] 2007, no pet.) ... 12

Ex parte Bellanger, No. 12–090–00246–CR, 2009 WL 4981457 (Tex. App.—Tyler 2009, no pet. h.)................................................................................................... 21

Ex parte Bogia, 56 S.W.3d 835 (Tex. App.—Houston [1st Dist.] 2001, no pet. h.) . 19, 21

Ex parte Brown, 959 S.W.2d 369 (Tex. App.—Fort Worth 1998, no pet. h.)........... 21

Ex parte Gonzalez, 383 S.W.3d 160 (Tex. App.—San Antonio 2012, pet. ref’d) ..... 12

Ex parte Green, No. 02–13–00474–CR, 2014 WL 584960 (Tex. App.—Fort Worth Feb. 13, 2014, no pet. h.) (not designated for publication) ................................. 12

Ex parte Guerra, 383 S.W.3d 229 (Tex. App.—San Antonio 2012, no pet. h.) ........ 21

Ex parte Harber, No. 04–10–00643–CR, 2010 WL 5141509 (Tex. App.—San Antonio Dec. 15, 2010, no pet. h.) (not designated for publication) ...........................16, 21

Ex parte Henson, 131 S.W.3d 645 (Tex. App.—Texarkana 2004, no pet. h.) .......... 21

Ex parte Hunt, 138 S.W.3d 503 (Tex. App.—Fort Worth 2004, pet. ref’d).............. 20

Ex parte Hutchinson, Nos. 05–11–00315–21–CR, 2011 WL 2583050 (Tex. App.— Dallas Jun. 30, 2011, pet. dismissed) (not designated for publication) ............... 16

Ex parte Jobe, 482 S.W.3d 300 (Tex. App.—Eastland 2016, pet. ref’d)................... 11

Ex parte Lewis, No. 10–13–00448–CR, 2014 WL 2810629 (Tex. App.—Waco Jun. 19, 2014, pet. ref’d) (not designated for publication) ......................................... 12

Ex parte Okun, 342 S.W.3d 184 (Tex. App.—Beaumont 2011, no pet. h.) .............. 16

Ex parte Peterson, 117 S.W.3d 804 (Tex. Crim. App. 2003) (per curiam), overruled on other grounds by Ex parte Lewis, 219 S.W.3d 335 (Tex. Crim. App. 2007)) ... 15, 16

6 Ex parte Peyton, No. 02–16–00029–CR, 2016 WL 2586698 (Tex. App.—Fort Worth May 5, 2016) ................................................................................................. passim

Ex parte Reed, 271 S.W.3d 698 (Tex. Crim. App. 2008)......................................16, 22

Ex parte Rubac, 611 S.W.2d 848 (Tex. Crim. App. [Panel Op.] 1981) ...................... 12

Ex parte Scott, 122 S.W.3d 866 (Tex. App.—Fort Worth 2003, no pet. h.) ............. 19

Ex parte Vasquez, 558 S.W.2d 477 (Tex. Crim. App. 1977) ..................................... 19

Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1990) (en banc)............... 18

Zheng v. State, No. 01–04–00062–CR, 2005 WL 375446 (Tex. App.—Houston [1st Dist.] Feb. 17, 2005, pet. ref’d) (not designated for publication) ........................ 17

Statutes

TEX. CODE CRIM. P. art. 17.15 ..................................................................................... 12

TEX. PENAL CODE § 15.03 ............................................................................................ 11

TEX. PENAL CODE § 19.02 ............................................................................................ 11

TEX. PENAL CODE § 19.03 ............................................................................................ 11

Other

Chevrolet Corvette (C3), WIKIPEDIA (2016), https://en.wikipedia.org/wiki/Chevrolet_Corvette_(C3) (last visited 18 May 2016) .................................................................................................................... 21

Corvette, CHEVROLET (2016), http://www.chevrolet.com/corvette-sports-cars.html (last visited May 19, 2016) ................................................................................... 21

7 STATEMENT REGARDING ORAL ARGUMENT

The applicable law is unambiguous, and the analysis required to properly

apply the law to the facts is not overly complicated. Thus, the State does not believe

oral argument would substantially aid the court. Therefore, oral argument is waived.

STATEMENT OF THE CASE

Appellant is charged with the first degree offense of Solicitation to Commit

Capital Murder. Appellant appealed from the trial court’s denial to reduce pretrial

bail of one million dollars. The Court of Appeals submitted the case without oral

argument, and held that the trial court abused its discretion in denying the motion

to reduce bond. The Court did not submit a bond amount, but rather remanded the

case for a bond determination.

STATEMENT OF PROCEDURAL HISTORY

The Court of Appeals, Second District, handed down its decision on May 5,

2016.1 The State did not file a motion for rehearing. Pursuant to Rule 31.4(a) of the

Texas Rules of Appellate Procedure, the State’s Petition for Discretionary Review is

due on or before May 20, 2016.

1Ex parte Peyton, No. 02–16–00029–CR, 2016 WL 2586698 (Tex. App.—Fort Worth May 5, 2016). 8 GROUNDS FOR REVIEW

9 ARGUMENT

According to the probable cause affidavit, admitted as State’s Exhibit 1 during

the hearing at the trial court level, Appellant and his wife were seeking to hire a hit

man to murder their daughter’s boyfriend.2 An undercover officer pretended to be

a hit man, and agreed to perform the murder for a fee with some cash up front, and

the balance after the murder took place.3 After Appellant paid the initial cash and

refused the under-cover officer’s offer to back out of the scheme, the officer met

with intended victim and staged a photograph of the “murder scene.”4 Upon

receiving this photographic proof of the target’s death, Appellant paid the officer

the remainder of the fee.5

But for the fact that Appellant unknowingly hired a police officer, rather than

a murderer, Appellant would be facing a Capital Murder charge. In fact, Appellant’s

mens rea and actus reus would have been exactly the same if the officer was a

2 R.R. 3:7, State’s Exhibit 1. 3 R.R. 3:7–8, State’s Exhibit 1. 4 R.R. 3:8, State’s Exhibit 1. 5 Id.

10 murderer.6 Appellant intentionally and knowingly employed the officer to murder

his daughter’s boyfriend.7 Further, Appellant paid the officer a cash down payment

for the murder, and the remainder believing that the murder had occurred.8

The biggest difference between Appellant’s actual charge of Solicitation to

Commit Capital Murder and Capital Murder, is that the intended victim is alive.

However, this difference is not due to any action or intent of Appellant. Simply

because Appellant was unsuccessful in hiring a murderer does not entitle him to a

lower bond. Rather, the Appellant in this case is even more dangerous because the

intended victim is still alive and at extreme risk from Appellant. As the mens rea and

actus reus of this Appellant and of a defendant in a successful Capital Murder are

identical, this case is logically the functional equivalent of a Capital Murder for Hire.

So, when comparing the bond amount in Appellant’s case to others, the Court of

Appeals should have used bonds from Capital Murder cases. Bonds at or above

$1,000,000 are not rare in single-count Capital Murder cases.9

6 Compare TEX. PENAL CODE § 15.03 (with intent that a capital felony or a felony of a firs degree be committed), with TEX. PENAL CODE § 19.02 (intentionally or knowingly). This offense qualifies as Capital Murder because Appellant employed another to commit murder for remuneration and the promise thereof. TEX. PENAL CODE § 19.03(1)(3). 7 See R.R. 3:7–8, State’s Exhibit 1. 8 Id. 9 See Ex parte Jobe, 482 S.W.3d 300 (Tex. App.—Eastland 2016, pet. ref’d) (upholding a bond of

$1,000,000, despite defendant’s indigence); Ex parte Gonzalez, 383 S.W.3d 160 (Tex. App.—San Antonio 2012, pet. ref’d) (upholding a bond of $1,500,000); Ex parte Lewis, No. 10–13–00448– CR, 2014 WL 2810629 (Tex. App.—Waco Jun. 19, 2014, pet. ref’d) (not designated for 11 Comparing bond amounts between different types of offenses is not a novel

occurrence. Nor is the idea of applying Capital Murder bond amounts to solicitation

cases.10 The Court of Appeals inappropriately circumscribed its review of bond

amounts approved by its sister courts. Had it properly considered bond amounts

set in single-count Capital Murder cases, the Court of Appeals would have concluded

that $1,000,000 was not outside of the acceptable bond amount range.

When reviewing the trial court’s refusal to lower the Appellant’s bond, the

Court of Appeals walked through the five factors from Article 17.15 of the Texas

Code of Criminal Procedure and the Rubac factors.11 The Court of Appeals jointly

addressed the first, second, and fourth factors of Article 17.15.12 Noting that the

primary purpose of setting a bail amount is the reasonable assurance that Appellant

will appear for court, the Court of Appeals cited Appellant’s testimony that: (1) he

had lived in Wichita Falls the past twenty-five years; (2) if released, Appellant would

publication) (upholding a bond of $1,000,000); Ex parte Green, No. 02–13–00474–CR, 2014 WL 584960 (Tex. App.—Fort Worth Feb. 13, 2014, no pet. h.) (not designated for publication) (upholding a $1,000,000 bond, even though defendant was indigent). 10 Cooley v. State, 232 S.W.3d 228, 235 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (reviewing

three Capital Murder bond reduction cases). 11 Peyton, 2016 WL 2586698, at *3–5; TEX. CODE CRIM. P. art. 17.15; Ex parte Rubac, 611 S.W.2d 848, 849–50 (Tex. Crim. App. [Panel Op.] 1981). 12 Peyton, 2016 WL 2586698, at *3–5.

12 live with a friend at the friend’s apartment; (3) Appellant would be able to obtain

transport to court; and, (4) he would comply with any bond conditions.13 After

stating that the State offered no evidence that Appellant was a flight risk, the Court

determined that this was “reasonable assurance that Peyton would appear for

court.”14

When evaluating the second factor—that bail not be oppressive—the Court

of Appeals simply summarized Appellant’s testimony and concluded that bail was

oppressive.15 The Court of Appeals determined Appellant did not have the ability to

pay for a $1,000,000 bond based on his testimony.16

The Court of Appeals evaluated the nature and surrounding circumstances of

the offense, finding the facts in the probable cause affidavit “disturbing,” and

correctly identified Solicitation of Capital Murder as a first degree felony with a five

to ninety-nine year punishment range.17 The Court determined, “[c]ase law is of

relatively little value in addressing the appropriate amount of bail in a particular

13 Id. at *4. 14 Id. 15 Id. 16 Id. 17 Id. at *5.

13 case,” but relied upon a series of habeas bail cases arising from the same offense to

conclude that $1,000,000 is outside the acceptable bond amount range.18

While acknowledging that the future safety of the community is a difficult

factor to analyze, the Court of Appeals found that because Appellant did not have

any prior felonies, and that the bail contains a provision preventing Appellant from

contacting his intended murder victim, the high amount of bail was not related to

community safety. Finally, when looking to the Rubac factors, the Court of Appeals

relied extensively on Appellant’s testimony to conclude Appellant has “an incentive

to remain despite the possibility of conviction and sentence.”19

A. The Appellate Court grossly undervalued Appellant’s danger to the victim and community.

Appellant calculated and effected a plan to hire a hit man to murder his

daughter’s boyfriend, refused to be deterred from that plan, and believed it to have

been successful.20 Appellant is charged with a crime that does not require him to

be physically present at the time the violence occurs. Even if Appellant complied

with terms of a bond that required him to remain under house arrest and wear an

ankle monitor, Appellant could still easily solicit the Capital Murder of his daughter’s

18 Id. (citing ex parte Beard, 92 S.W.3d 566, 571 (Tex. App.—Austin 2002, pet. ref’d) (internal quotation omitted)). 19 Id. at *5 (quotation omitted). 20 R.R. 3:7–8, State’s Exhibit 1.

14 boyfriend once again. Alternatively, with the money raised by the sale of his

firearms,21 Appellant could hire an individual to murder the officer, who is the

linchpin of the State’s case against Appellant and his wife.

Unlike a Capital Murder for Hire, here, Appellant’s intended victim is still alive

and still at risk. The trial court recognized that could order few realistic safeguards

to protect the intended victim or the community at large from any future attempts

by Appellant to solicit murder. The Court of Appeals erred by substituting its own

incorrect determination that the Appellant’s word, a restriction of house arrest to

an unknown third party’s apartment, and an electronic ankle monitor would keep

the victim and the community safe.

B. The Court of Appeals erred by substituting the trial court’s implicit credibility determination of the Appellant by holding that the trial court received reasonable assurance of the Appellant’s presence at trial court appearances.

When reviewing a trial court’s decision, appellate courts should view the facts

in the light most favorable to the judge’s ruling, and uphold that ruling absent an

abuse of discretion.22 “Reviewing courts, including this Court, should ‘afford almost

total deference to a trial court’s determination of the historical facts that the record

21R.R. 2:9 (testifying he could sell “some guns” to make bond). 22Ex parte Peterson, 117 S.W.3d 804, 819 (Tex. Crim. App. 2003) (per curiam), overruled on other grounds by Ex parte Lewis, 219 S.W.3d 335 (Tex. Crim. App. 2007)). 15 supports especially when the trial courts fact findings are based on an evaluation of

credibility and demeanor.’”23 Trial judges are uniquely situated to observe witness

demeanors and directly assess credibility.24 However, this deference to implicit

factual findings should be tempered by the reviewing court’s ability to “determine

from the record what the trial court’s implied factual findings are.”25

1. The Court of Appeals disregarded the trial court’s implicit credibility assessment of the Appellant.

The record supports the conclusion that the trial court found the Appellant’s

testimony not credible. The Court of Appeals erred in ignoring this implicit credibility

determination. Appellant was the only witness at the bond reduction hearing.26 The

State entered the probable cause affidavit into evidence.27 Simply because the State

did not offer evidence contrary to Appellant’s testimony, does not mean the trial

court is required to accept it as truthful and accurate.28

23 Id. (quoting Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). 24 Ex parte Reed, 271 S.W.3d 698, 727 (Tex. Crim. App. 2008). 25 Peterson, 117 S.W.3d at 819. 26 See generally R.R. 2. 27 R.R. 2:12. 28 See Ex parte Okun, 342 S.W.3d 184, 185 (Tex. App.—Beaumont 2011, no pet. h.); Ex parte

Hutchinson, Nos. 05–11–00315–21–CR, 2011 WL 2583050, at *3 (Tex. App.—Dallas Jun. 30, 2011, pet. dismissed) (not designated for publication); Ex parte Harber, No. 04–10–00643–CR, 2010 WL 5141509, at *3 n. 2 (Tex. App.—San Antonio Dec. 15, 2010, no pet. h.) (not designated for publication). 16 However, if the trial court found Appellant’s statements credible, that he

would live with an unnamed friend29 and that unnamed friends would provide

Appellant with rides to court hearings,30 then the trial court would be relying on an

anonymous individual or group of individuals, who did not appear at the bond

reduction hearing, to guarantee Appellant’s appearance. This reality would be

absolutely contrary to the purpose of an appearance bond.

Given the presumption in favor of the trial court’s ruling, the trial court did

not find Appellant’s testimony credible. However, the Court of Appeals improperly

ignored this implicit credibility finding, and treated Appellant’s testimony as

reliable.31

2. The trial court erred by failing to defer to the trial judge’s determination of the weight to be given the evidence.

Not only is the trial judge the best position to determine the credibility to be

assigned a particular witness, the judge is also in the best position to determine the

weight to be given the evidence.32 Even the Court of Appeals acknowledged that

simply because a trial court may decide a matter within its discretion differently than

29 R.R. 2:9–10. 30 R.R. 2:9. 31 See Peyton, 2016 WL 2586698, at *4–5. 32 Zheng v. State, No. 01–04–00062–CR, 2005 WL 375446, at *2 (Tex. App.—Houston [1st Dist.]

Feb. 17, 2005, pet. ref’d) (not designated for publication). 17 an appellate court would in a similar circumstance, does not prove that an abuse of

discretion has occurred.33

Concluding that Appellant was not a flight risk,34 Court of Appeals glossed over

the reality recognized by the trial court: that, if released on bond, Appellant has few

reasons to remain in Wichita County. Appellant’s wife is a co-conspirator in the

same offense.35 Despite his twenty-five year tenure in Wichita Falls, Appellant owns

no real property, leases no real property, works at no employment,36 and has no

other family in the area.37 In fact, the court has very little guarantee to Appellant’s

appearance in court beyond a strong monetary incentive.

C. The Court of Appeals conflated factors two and four of Article 17.15 by reasoning that because Appellant was unable to pay his bond, that his bond was oppressive.

Ignoring the trial court’s implicit finding that Appellant was not credible, the

Court of Appeals then relied upon his testimony that he “is disabled, has minimal

assets and income, and does not have the ability to satisfy a $1,000,000 bond. This

33 Peyton, 2016 WL 2586698, at *3; Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990) (en banc). 34 Peyton, 2016 WL 2586698, at *4. 35 R.R. 3:8–10, State’s Exhibit 1. 36 Appellant receives social security disability, which is not contingent upon his residence within

Wichita County. See R.R. 2:10. 37 R.R. 2:8–11.

18 factor demonstrates that bail in the amount set is oppressive.”38 If this tautological

reasoning was correct, then any bond that a defendant could not afford would be

oppressive.39

Then, Court of Appeals, once again, disregards the trial court’s credibility

assessment, and relies entirely on the Appellant’s testimony as to his assets and

income.40 This complete reliance on the cold record is inapposite of the Court of

Appeals’ own holding in Ex parte Scott,41 a Solicitation of Capital Murder case in

which the Court considered the defendant’s lack of specific evidence as to his and

his family’s assets other than testimony.42 Despite the many factors weighing

heavily in favor of a high bond, the Appellant’s inability to afford bail dominated all

other factors, even though the Court of Appeals acknowledged this factor should

not be controlling.43

38 Id. (internal citation omitted). The Court of Appeals relies on Ex parte Bogia, which holds that a $360,000 bond for second degree felony theft is per se oppressive, unless justified by special circumstances. 56 S.W.3d 835, 840 (Tex. App.—Houston [1st Dist.] 2001, no pet. h.). 39 Ex parte Vasquez, 558 S.W.2d 477, 480 (Tex. Crim. App. 1977) (stating, “Appellant’s indigency

is a circumstance to be considered, but it is not a controlling circumstance nor the sole criterion in determining the amount of bail.”). 40 Peyton, 2016 WL 2586698, at *4. 41 122 S.W.3d 866 (Tex. App.—Fort Worth 2003, no pet. h.). 42 Id. at 870. 43 See Peyton, 2016 WL 2586698, at *4.

19 D. The Court of Appeals did not properly consider the nature and circumstances of the Appellant’s charged offense.

When considering bond amounts, the defendant’s alleged offense and

potential punishment are primary factors to be considered.44 Appellant attempted

to secure, and believed himself successful, in procuring the murder of his daughter’s

boyfriend.45 Solicitation of Capital Murder is a first degree felony, punishable by up

to five to ninety-nine years imprisonment or life. Even the Court of Appeals

described Appellant’s offense as “disturbing.”46 As discussed in Section I above, but

for the fact that Appellant inadvertently contacted a police officer instead of a true

hit man, Appellant would have succeeded in the murder of his intended victim.47 AS

the mens rea and actus reus are identical between Appellant and a defendant in a

completed Capital Murder, the criminal culpability here is the factual equivalent of

a Capital Murder for Hire. Therefore, the Court of Appeals should have used Capital

Murder cases when comparing this bond amount to other cases.

In addition, the Court of Appeals erred in relying upon a survey of aged cases

to serve as a basis for justifying its decision that Appellant’s bond should be lowered.

44 Ex parte Hunt, 138 S.W.3d 503, 505 (Tex. App.—Fort Worth 2004, pet. ref’d). 45 R.R. 3:8 (paying the remaining balance upon receiving “proof” showing the murder was carried out). 46 Peyton, 2016 WL 2586698, at *5 (weighing this factor in favor of a high bond). 47 Supra Section I.

20 When comparing a bond amount to others set by sister courts, courts of appeals

should look to more recent cases, decided at least within the past decade.48 The

Texarkana Court of Appeals has even commented upon a party relying old cases to

compare bond amounts.49

However, in its audit of bond amounts determined by various courts, the

Court of Appeals cited old cases, one as far back as 1980,50 when a new Corvette

cost as little as $15,000.51 The base price of a new 2016 Corvette Stingray is

$55,400.52 The Court’s most recent case was still nine years old.53 The Court of

Appeals applied outdated data to improperly hold that the trial court committed

abuse of discretion.

48 See Ex parte Guerra, 383 S.W.3d 229, 233 (Tex. App.—San Antonio 2012, no pet. h.) (comparing cases up to ten years old); Harber, 2010 WL 5141509, at *2 (no older than four years prior to its decision); Ex parte Bellanger, No. 12–090–00246–CR, 2009 WL 4981457, at *3 (Tex. App.—Tyler 2009, no pet. h.) (not designated for publication) (as old as nine years prior to the decision); Ex parte Brown, 959 S.W.2d 369, 372 n. 2 (Tex. App.—Fort Worth 1998, no pet. h.) (no older than seven years). But see Ex parte Bogia, 56 S.W.3d 835 (Tex. App.—Houston [1st Dist.] 2001, no pet. h.) (as far back as twenty-one years older than the case at issue). 49 Ex parte Henson, 131 S.W.3d 645, 648 (Tex. App.—Texarkana 2004, no pet. h.) (noting

Appellant relied on numerous court decisions, “none of which are more recent than 1991. . .” but the State “cit[ed] more recent decisions,” which occurred within four years of the case). 50 Peyton, 2016 WL 2586698, at *5 (citing Ex parte Parish, 598 S.W.2d 872 (Tex. Crim. App.

[Panel Op.] 1980)). 51 Chevrolet Corvette (C3), WIKIPEDIA (2016),

https://en.wikipedia.org/wiki/Chevrolet_Corvette_(C3) (last visited 19 May 2016). 52 Corvette, CHEVROLET (2016), http://www.chevrolet.com/corvette-sports-cars.html (last visited

May 19, 2016). 53 Peyton, 2016 WL 2586698, at *5 (citing Cooley v. State, 232 S.W.3d 228 (Tex. App.—Houston

[1st Dist.] 2007, no pet.)). 21 E. By relying on Appellant’s testimony, the Court of Appeals replaced the trial court’s credibility assessment of Appellant with its own, causing it to find that the Rubac factors weighed in favor of a lower bond.

In the section regarding the Rubac factors, the Court of Appeals repeated

Appellant’s testimony about: his age, the fact that he lived most of his life in Wichita

Falls, his wife and friends are in Wichita Falls, he is unable to work, his prior arrests

were minor, and the record did not contain aggravating circumstances about the

charged offense.54 The Court of Appeals once again, took the Appellant’s words at

face value. Ignoring this Court’s standard of review granting deference to

factfinders, which,

[A]ccounts for the unparalleled position of the habeas judge to directly assess a witness’s demeanor. While listening to testimony, the habeas judge is tuned in to how something is being said as much as to what is being said. The judge is acutely aware of a witness’s tone of voice or inflection, facial expressions, mannerisms, and body language. There is no doubt that this type of assessment, the essence of which a cold record rarely captures, is a determinative factor in a trial judge’s credibility assessment and factfindings.55

54 Peyton, 2016 WL 2586698, at *5. 55 Reed, 271 S.W.3d at 728 (emphasis added). 22 PRAYER

The State prays that the Court of Criminal Appeals grant discretionary review

of the decision of the Court of Appeals, Second District, and ultimately, reverse its

judgment, affirming the judgment of the 30th District Court of Wichita County, Texas.

Respectfully Submitted,

Maureen Shelton Criminal District Attorney Wichita County, Texas

/s/ Jennifer Ponder Jennifer Ponder Assistant Criminal District Attorney Wichita County State Bar No. 24083676 900 7th Street Wichita Falls, Texas 76301 Tel.: (940)766-8113

23 CERTIFICATE OF COMPLIANCE

I, the undersigned, certify that this document was produced on a computer

using Microsoft Word and contains 3,387 words, as determined by the computer

software’s word-count function, excluding the sections of the document listed in

Texas Rule of Appellate Procedure 9.4(i)(1).

/s/ Jennifer Ponder Jennifer Ponder

CERTIFICATE OF SERVICE

I, the undersigned, certify that on Friday, May 20, 2016, I served a copy of the

State’s Petition for Discretionary Review on the parties listed below by electronic

service and that the electronic transmission was reported as complete. My e-mail

address is [email protected].

Brennon Brady 600 Scott Street, Rm 204 Wichita Falls, TX 76301 (940)766-7119 [email protected]

State Prosecuting Attorney P.O. Box 13046 Austin, Texas 78711 [email protected]

/s/ Jennifer Ponder Jennifer Ponder

24 App 001

FILED IN 2nd COURT OF APPEALS FORT WORTH, TEXAS 5/20/2016 3:42:41 PM DEBRA SPISAK Clerk

Appendix Ex parte Peyton, No. 02–16–00029–CR, 2016 WL 2586698 (Tex. App.—Fort Worth May 5, 2016). App 002

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO. 02-16-00029-CR

EX PARTE JEFFREY PEYTON

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FROM THE 30TH DISTRICT COURT OF WICHITA COUNTY TRIAL COURT NO. 56208-A

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MEMORANDUM OPINION1

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I. INTRODUCTION

Applicant Jeffrey Peyton appeals from the trial court’s denial of his pretrial

application for writ of habeas corpus seeking a bail reduction. 2 Because we

conclude that the trial court abused its discretion by failing to reduce the bail

amount based on the proffered evidence, we reverse the trial court’s order and

remand to that court to set a reasonable bail.

II. FACTUAL AND PROCEDURAL BACKGROUND

On July 2, 2015, a magistrate determined that there was probable cause to

issue an arrest warrant for Peyton based on an affidavit sworn to by John E.

Laughlin, a peace officer of the City of Wichita Falls Police Department. See

Tex. Code Crim. Proc. Ann. art. 15.03(a) (West 2015). In the affidavit, Officer

Laughlin stated that he had probable cause to believe that on June 30, 2015,

Peyton committed the offense of “Criminal Solicitation – Capital Murder.” See

Tex. Penal Code Ann. § 15.03 (West 2011). Officer Laughlin further attested to

the following sequence of events:

03-13-00717-CR, 03-13-00718-CR, 2014 WL 3732962, at *1 n.2 (Tex. App.— Austin July 25, 2014, no pet.) (mem. op., not designated for publication) (collecting cases).

2 App 004

 Around 11:00 a.m. on June 30, 2015, the cooperating witness took Peyton’s wife to a bank at her request and direction and recorded the conversation that took place. Peyton’s wife intimated that she was getting money from the bank to complete a transaction with Officer Wade. While talking about Cole, Peyton’s wife stated, “I want him gone. Not out of town gone. I want him dead gone.” Peyton’s wife further stated that she and Peyton planned to take their daughter to a movie so that she would not be around “the day this happens.”

After Peyton’s arrest, bail was set at $1,000,000.3 Peyton filed an

application for writ of habeas corpus and argued that his bail was unlawfully

excessive. Peyton requested that the trial court “grant him a personal

recognizance bond or, in the alternative, set bail in a reasonable amount.”

3 As part of the conditions of bail, the magistrate ordered that Peyton “not make contact with the alleged victim, or any member of his family, nor cause any other person to make said contact.”

3 App 005

At the hearing on Peyton’s application for writ of habeas corpus, Peyton