Ex Parte Wilson

527 S.W.2d 310, 1975 Tex. Crim. App. LEXIS 1094

• Court: Court of Criminal Appeals of Texas
• Decided: September 23, 1975
• Docket: 50513
• Status: Published

Opinions

OPINION

BROWN, Commissioner.

These are appeals from an order of the CAninal District Court of Jefferson County denying appellants’ applications for a writ of habeas corpus and refusing the appellants’ applications for bail. Appellant Charles Elton Wilson and appellant Chris Phillip Kibbe both stand indicted for the offense of capital murder.

The Constitution of the State of Texas, Art. 1, Sec. 11, and the Code of Criminal Procedure, Art. 1.07, both provide that all prisoners are entitled to bail except those charged with a capital offense “when the proof is evident.”

The term “proof is evident” means that the evidence is clear and strong, leading a well-guarded and dispassionate judgment to the conclusion that the offense of capital murder has been committed; that the accused is the guilty party; and that the accused will not only be convicted but that the jury will return findings which will require a sentence of death. Ex parte Sierra, 514 S.W.2d 760 (Tex.Cr.App.1974); Ex parte Forbes, 474 S.W.2d 690 (Tex.Cr.App.1972); Ex parte Short, 462 S.W.2d 281 (Tex.Cr.App.1971); Ex parte Colbert, 452 S.W.2d 454 (Tex.Cr.App.1970); Ex parte Collins, 168 Tex.Cr.R. 500, 330 S.W.2d 194; Ex parte Thrash, 167 Tex.Cr.R. 409, 320 S.W.2d 357; Ex parte Washburn, 161 Tex.Cr.R. 651, 280 S.W.2d 257; Ex parte Roberts, 151 Tex.Cr.R. 547, 209 S.W.2d 361; Ex parte Suger, 149 Tex.Cr.R. 133, 192 S.W.2d 159; Ex parte Shults, 127 Tex.Cr.R. 484, 77 S.W.2d 877. See generally 7 Tex.Jur.2d, Rev., Part 2, Bail and Recognizance, Secs. 16-22.

The burden of proof is on the State to establish that the proof is evident. Ex parte Sierra, supra; Ex parte Forbes, supra; Ex parte Short, supra; Ex parte Paul, 420 S.W.2d 956 (Tex.Cr.App.1967). The State must introduce evidence that the jury would not only convict the accused, but would return findings which would require a sentence of death. Ex parte Sierra, supra; see Art. 37.071, V.A.C.C.P.

It is the firmly established policy of this Court to refrain from setting out the facts in detail or commenting on the sufficiency of the evidence since the case has not yet been tried on the merits. Ex parte Sierra, supra; Ex parte Paul, supra.

The decision of the trial judge that the proof was evident is entitled to weight on appeal, but it is the duty of this Court to examine the evidence and to determine for ourselves if bail was properly denied. Ex parte Hickox, 90 Tex.Cr.R. 139, 233 S.W. 1100.

The record before us reflects that the body of Frank Graffagnino was found buried in a shallow grave in a wooded area of Jefferson County in mid May, 1975. An examination of the body disclosed bruises, a fractured leg, and fractured ribs. The cause of death was suffocation resulting from the aspiration of the stomach contents.

The State introduced evidence that would link the appellants to the death of Frank Graffagnino. The record could circumstantially support the State’s allegations of kidnapping. Motive is shown by an affidavit that indicates that the deceased was having an affair with the wife of the appellant Kibbe.

In order for the sentence of death to be imposed, there must first be a conviction of capital murder. The State must then prove beyond a reasonable doubt that: (1) The conduct of the accused that caused the death of the deceased was committed deliberately and with the reasonable expectation the death of the deceased or another would result; (2) There is a probability that the accused would commit criminal acts of violence that would constitute a continuing threat to society; (3) If raised by the evidence, that the conduct of the accused in killing the deceased was unreasonable in response to the provocation, if any, by the deceased. Jurek v. State, 522 S.W.2d 934 (Tex.Cr.App.1975).

We have carefully reviewed the record before us and cannot conclude that the proof is “evident” that the jury would answer the required questions in the affirmative as required by Art. 37.071, V.A.C. C.P.

The judgment of the trial court in denying bail to the appellants is reversed. Appellant Charles Elton Wilson is granted bail in the sum of $20,000.00. The appellant Chris Phillip Kibbe is granted bail in the sum of $40,000.00.

Opinion approved by the Court.