                                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

 8

 9

10          _______________________________________

11                        MASTER INDEX
            _______________________________________
12

13

14

15

16

17

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:

 2

 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

 7

 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

12

13

14

15

16

17

18

19

20

21

22

23

24

25



                   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

13

14

15

16

17

18

19

20

21

22

23

24

25



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


 1               ALPHABETICAL INDEX OF WITNESSES

 2

 3   WITNESSES                          DIRECT     CROSS   VOL

 4      Peyton, Jeffrey                        7            2

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25



                    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

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25



                   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.

20

21

22

23

24

25



                   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.

 3

 4

 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
                         Leslie.Ryan-Hash@co.wichita.tx.us
10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25



                   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

 8

 9

10          _______________________________________

11                       HABEAS CORPUS
            _______________________________________
12

13

14

15

16

17

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:

 2

 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

 7

 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

12

13

14

15

16

17

18

19

20

21

22

23

24

25



                   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

13

14

15

16

17

18

19

20

21

22

23

24

25



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


 1               ALPHABETICAL INDEX OF WITNESSES

 2

 3   WITNESSES                          DIRECT     CROSS   VOL

 4      Peyton, Jeffrey                        7     7      2

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25



                    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

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25



                   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.)

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25



                    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.

20

21

22

23

24

25



                   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.

 3

 4

 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
                         Leslie.Ryan-Hash@co.wichita.tx.us
10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25



                   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

 8

 9

10          _______________________________________

11                       EXHIBIT INDEX
            _______________________________________
12

13

14

15

16

17

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:

 2

 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

 7

 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

12

13

14

15

16

17

18

19

20

21

22

23

24

25



                   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

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25



                   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.

19

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                        Leslie.ryan-hash@co.wichita.tx.us

25



                   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

                             ÿ




                                 /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.

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:

        £x] 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. Iwant 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

                                                                                                                 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

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.


                                                                            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:

                                                  I.

                                          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.

                                                V.

                                   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.

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 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




                                                                                      38
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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.

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 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
                        brennon.brady@co.wichita.tx.us
                        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
                             brennon.brady@co.wichita.tx.us

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
                             jennifer.ponder@co.wichita.tx.us




                                     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
                                 brennon.brady@co.wichita.tx.us


                                 /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 jennifer.ponder@co.wichita.tx.us.



                                 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
John.Gillespie@co.wichita.tx.us                 John.Brasher@co.wichita.tx.us

       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
                                               Jennifer.Ponder@co.wichita.tx.us

                             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

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.

       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

Jennifer.Ponder@co.wichita.tx.us.

      Brennon Brady
      Attorney for Applicant
      Assistant Public Defender
      600 Scott Street, 2nd Floor, Rm 204
      Wichita Falls, Tx 76301
      Brennon.Brady@co.wichita.tx.us



                                               /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 Jennifer.Ponder@co.wichita.tx.us.


      Brennon Brady
      600 Scott Street, Rm 204
      Wichita Falls, TX 76301
      (940)766-7119
      Brennon.Brady@co.wichita.tx.us

      State Prosecuting Attorney
      P.O. Box 13046
      Austin, Texas 78711
      information@spa.texas.gov


                                              /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
John.Gillespie@co.wichita.tx.us                   John.Brasher@co.wichita.tx.us

       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
                                                Jennifer.Ponder@co.wichita.tx.us

                              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.

   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.

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

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.

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.




                                          9
                                        ARGUMENT

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.

        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.

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.

       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 Jennifer.Ponder@co.wichita.tx.us.

      Brennon Brady
      600 Scott Street, Rm 204
      Wichita Falls, TX 76301
      (940)766-7119
      Brennon.Brady@co.wichita.tx.us

      State Prosecuting Attorney
      P.O. Box 13046
      Austin, Texas 78711
      information@spa.texas.gov

                                               /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



                                     ----------

          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.
App 003


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
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.”

    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
App 005


      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
App 006


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
App 007


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
App 008



            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
App 009


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
App 010


(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
App 011


$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
App 012


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
App 013


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
App 014


                                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




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