Ex parte McIntyre, 02-18-00163-CR

• Decision Date: 16 August 2018
• Docket Number: NO. 02-18-00164-CR,NO. 02-18-00163-CR,02-18-00163-CR
• Citation: 558 S.W.3d 295
• Parties: EX PARTE Taymor Travon MCINTYRE
• Court: Texas Court of Appeals

558 S.W.3d 295

EX PARTE Taymor Travon MCINTYRE

NO. 02-18-00163-CR

NO. 02-18-00164-CR

Court of Appeals of Texas, Fort Worth.

DELIVERED: August 16, 2018

Discretionary Review Refused October 31, 2018

ATTORNEY FOR APPELLANT: JEFF KEARNEY, WM. REAGAN WYNN, KEARNEY WYNN, FORT WORTH, TX.

ATTORNEY FOR STATE: SHAREN WILSON, CRIM. DIST. ATTY., JOSEPH SPENCE, CHIEF, POST CONVICTION, ANDREA JACOBS, WILLIAM VASSAR, ASST. CRIM. DIST. ATTY., FORT WORTH, TX.

PER CURIAM^*

I. INTRODUCTION

Appellant Taymor Travon McIntyre perfected this interlocutory appeal from the trial court’s order denying his pretrial application for writ of habeas corpus requesting that reasonable bail be set in his pending case for a capital murder and three counts of aggravated robbery occurring on or about July 26, 2016 (cause number 1511547D, "the capital murder case") and his pending case for one count of aggravated robbery and one count of aggravated assault with a deadly weapon committed in Arlington, Texas, on or about May 25, 2017 (cause number 1511574D, "the Arlington aggravated robbery case"). For the reasons set forth below, we affirm the trial court’s order denying bail in the capital murder case, but we reverse the trial court’s order denying bail in the Arlington aggravated robbery case and remand that case to the trial court for further proceedings.

II. PROCEDURAL AND FACTUAL OVERVIEW

Appellant was sixteen years old when he allegedly committed these offenses. The capital murder case stems from a July 26, 2016 incident in which multiple suspects entered a house in Mansfield at 10:45 p.m., displayed their pistols, and demanded the occupants' cell phones and illegal drugs. During the robbery, the suspects fired their pistols, killing one of the occupants and wounding another. Appellant was identified as one of the suspects.

An arrest warrant issued for Appellant, and he was arrested and placed in the juvenile detention facility. After detention hearings, the juvenile court released Appellant pretrial to "home arrest" subject to conditions that included electronic monitoring via an ankle monitor. Despite signing the conditions of release and being informed that violations could result in the issuance of a directive to apprehend him and his subsequent arrest and detention, on March 27, 2017, Appellant cut off his monitor and fled.

Within a month of fleeing, Appellant became a suspect in—and has now been indicted for—a second capital murder in Bexar County. According to a Bexar County arrest warrant affidavit admitted into evidence at the writ hearing, Appellant and three others picked up a photographer for a photo shoot at a mall on April 23, 2017. The affidavit alleges that Appellant and one of the others pulled out guns and took the photographer’s backpack containing his camera equipment. The other gun-bearing individual pistol-whipped the photographer and forced him from the car. The photographer attempted to get back into the car and eventually jumped on the hood. According to the affidavit, Appellant then leaned out of the window and shot the photographer, who died as a result of the gunshot.

A month after that incident, Appellant became a suspect in—and has now been indicted in—the May 25, 2017 Arlington aggravated robbery case. The details of that offense are not in the record before us.

Thus, Appellant has been indicted for two felony offenses—the Bexar County capital murder and the Arlington aggravated robbery—that were committed within two months of the date Appellant cut off his ankle monitor and fled. Approximately three months after Appellant cut off his ankle monitor and fled, on June 30, 2017, he was apprehended by the United States Marshals Service in Union County, New Jersey. He was returned to Tarrant County where he was incarcerated in the Tarrant County Jail on July 20, 2017. The juvenile court waived its jurisdiction and transferred Appellant’s cases to the district court.

The State filed criminal complaints against Appellant in the capital murder case (noting bail was set in the amount of $500,000) and in the Arlington aggravated robbery case (noting "$0 bond"), and a Tarrant County grand jury returned indictments against Appellant in both cases on September 29, 2017. On February 7, 2018, the trial court sua sponte held the $500,000 bond previously set in the capital murder case to be insufficient and ordered that Appellant be held without bail in that case.

Appellant filed an application for a pretrial writ of habeas corpus in both cases¹ arguing that he is being illegally restrained because he has been incarcerated since July 20, 2017, without the setting of reasonable bail. Appellant requested in his application that the trial court set reasonable bail in both the capital murder case and the Arlington aggravated robbery case. The trial court conducted a hearing.²

At the hearing on Appellant’s application for a pretrial writ of habeas corpus, evidence presented to the trial court established that after Appellant cut off his ankle monitor and fled, he wrote a song detailing his escapades. A New York lawyer represented Appellant in recording contract negotiations, and Appellant ultimately signed a three-year recording contract with 88 Classic for $600,000 or $700,000. Appellant also made a music video in which the trial court described Appellant as "pretty much bragging about the fact that he not only cut off his monitor ... but he’s standing around holding a .9 mm pistol ... standing next to a poster of himself," which the trial court believed "came from the directive to apprehend."

Appellant’s father and Appellant’s uncle testified at the writ hearing. Appellant’s father, Kevin Beverly, said that although he lived in McKinney, he had made arrangements to lease a home in Fort Worth so Appellant could live there with him if Appellant were released on bond. Beverly explained that Appellant’s uncle had agreed to live with them if Appellant was released so that together they could provide continuous supervision of Appellant and make sure Appellant complied with all of the conditions of any bonds that are set. Beverly said that Appellant’s recording contract was paying for his lawyers in Tarrant County and Bexar County and that as Appellant’s legal guardian, he had transferred Appellant’s assets to a trust.

Appellant’s uncle testified that he lived in Florida and that he had retired from the Army after suffering injuries during combat. Since retiring from the Army, Appellant’s uncle had worked in security contracting (protecting embassies and consulates) and executive protection (providing security for mayors, senators, artists, and other similar professionals). Appellant’s uncle testified that he was willing to move to Texas and live with Beverly. Appellant’s uncle agreed that either he or Beverly would be in direct supervision of Appellant at all times and promised to make sure that Appellant observed every condition of any bonds that are set.

Defense counsel asked to provide additional information about the assets in Appellant’s trust fund at a later date. The trial court agreed, and defense counsel provided that information at a subsequent, brief, on-the-record conclusion to the writ hearing. Defense counsel also requested that the trial court take judicial notice of Bexar County’s placement of a juvenile hold on Appellant for the alleged capital murder of the photographer. According to defense counsel, even if the trial court set bail in Appellant’s capital murder case and in his Arlington aggravated robbery case and even if Appellant posted bail, Appellant would not be released from custody but instead would be transported to Bexar County for a detention hearing in the juvenile court and possibly a hearing seeking a waiver of jurisdiction by the juvenile court and transfer of Appellant’s case to a Bexar County district court for criminal prosecution. Only at that point, defense counsel argued, could Appellant seek bail in his Bexar County case and potentially be released.

The State offered and the trial court admitted the arrest warrant for Appellant in the capital murder case and the Bexar County capital murder arrest warrant for Appellant. The State’s sole witness was Luis Montoya. Montoya testified that the juvenile system does not have bonds and that Appellant has never been placed on a bond or bail. Montoya explained that Appellant’s act of cutting off his monitor was a violation of his conditions of release and that the remedy for that violation was to issue a directive to apprehend.

The trial court made the following findings of fact and conclusions of law:

1. Applicant’s date of birth is [redacted].

2. Applicant has been a runaway since July 4, 2014.

3. In Cause No. 1511547D, Applicant is accused in a four-count indictment alleging one count of capital murder and three counts of aggravated robbery.

4. In Cause No. 151157[4]D, Applicant is accused of one count of aggravated robbery and one count of aggravated assault.

5. Applicant previously removed his ankle monitor and fled while under house arrest as ordered by the juvenile court.

6. Applicant is alleged to have committed an additional capital murder and other felonious conduct after a directive to apprehend was issued following his absconding from house arrest by removing his ankle monitor.

7. According to the Noble Static Risk Assessment that was administered to Applicant, the classification reported for Applicant is "High Violent."

8. The nature of the alleged offenses and safety of the victim and community should be and has been considered on the issue of bond.

....

For all the reasons stated above and by the Court on the record during the hearing on March 8, 2018, the relief requested by Applicant should be denied[,] and no bail amount should be set.

The trial court denied Appellant’s application for a pretrial writ of habeas corpus ruling that "Applicant’s requests for relief are DENIED [,] and no bail amount shall be set."

III. THE TRIAL COURT'S DENIAL OF HABEAS RELIEF

In his sole...