Opinion
NO. 02-16-00029-CR
05-05-2016
EX PARTE JEFFREY PEYTON
FROM THE 30TH DISTRICT COURT OF WICHITA COUNTY
TRIAL COURT NO. 56208-A MEMORANDUM OPINION
See Tex. R. App. P. 47.4.
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. Because we conclude that the trial court abused its discretion by failing to reduce the bail amount based on the proffered evidence, we reverse the trial court's order and remand to that court to set a reasonable bail.
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. 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).
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.
• 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. 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."
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."
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 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. Peyton then filed this appeal, and we requested briefing. See Tex. R. App. P. 31.1.
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. --------
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 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.
4. The ability to make bail is to be regarded, and proof may be taken upon this point.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.
5. The future safety of a victim of the alleged offense and the community shall be considered.
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, 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 (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 $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 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. 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).
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