Ex parte Short, 43854

• Decision Date: 27 January 1971
• Docket Number: No. 43854,43854
• Parties: Ex parte Billy Joe SHORT.
• Court: Texas Court of Criminal Appeals

Page 281

462 S.W.2d 281

Ex parte Billy Joe SHORT.

No. 43854.

Court of Criminal Appeals of Texas.

Jan. 27, 1971.

F. R. Files, Jr., Tyler, for relator.

Hunter B. Brush, Dist. Atty., Rex Kirby, Charles Crow, Asst. Dist. Attys., Tyler, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

ONION, Presiding Judge.

This is an appeal from an order entered in a habeas corpus proceeding refusing appellant bail after indictment for murder with malice.

The Constitution of this State provides that all prisoners are entitled to bail except in capital cases when the 'proof is evident.' Article I, Sec. 11, Texas Constitution, Vernon's Ann.St.

'The term 'proof is evident' means the accused, with cool and deliberate mind and formed design, maliciously killed the deceased, and that upon a hearing of the facts before the court a dispassionate jury would, upon such evidence, not only convict but would assess the death penalty.' Ex parte Paul, Tex.Cr.App., 420 S.W.2d 956. See also 8 Tex.Jur.2d, Bail and Recognizance, Sec. 18, p. 137.

In order to defeat bail the burden is upon the State to establish that the 'proof is evident.' See Ex parte Thrash, 167 Tex.Cr.R. 409, 320 S.W.2d 357.

The trial court in the case at bar has by denial of bail to this appellant construed the facts presented at the habeas hearing as showing a case of 'proof evident.' It is now the duty of this court to determine if the trial court was authorized to reach that conclusion.

'In performing this duty it has long been the policy of this Court in proceedings of this nature to refrain from stating the facts at length and of expressing a conclusion as to the sufficiency of the evidence to show the defendant's guilt. The purpose of such policy is that the trial should proceed without pre-judgment by this Court.' Ex parte Paul, supra.

The record reflects that the battered body of Mrs. Hattie Wilson was discovered on September 4, 1970, in Wilson's Grocery Store and Service Station approximately five miles from Tyler, Texas on Highway 31 West. She had been shot as well as badly beaten.

After appellant's arrest the next day and subsequent to being warned by a magistrate under the provisions of Article 15.17, Vernon's Ann.C.C.P., the appellant led officers to the lake where he stated he disposed of a pistol he claimed he had used to shoot Mrs. Wilson. The pistol was recovered. After warnings by an assistant district attorney in compliance with Article 38.22, V.A.C.C.P., followed by a waiver of his rights, the appellant gave...