IN THE
NAME AND BY AUTHORITY OF
THE STATE
OF TEXAS:
I, Randall Kelton, hereinafter referred to as
"Complaint," under penalty of perjury, do state that I have personal
knowledge I have good reason to believe and do believe based upon the following
information:
After the verdict and assessment of punishment in the
instant cause, on the 28th day of September, 2011, defendant was
remanded to the custody of the Cherokee County Sheriff and remanded to the
Cherokee County jail. Defendant was held in jail, without bail, until the 14th
day of October, 2011, when defendant was brought before the court to answer a
charge of contempt of court. When defendant objected to the hearing without
counsel, Judge Fletcher offered to hold a bail hearing if defendant would waive
his right to counsel for the purpose of the hearing. Defendant agreed and a
hearing was held.
Defendant asked the court to continue the personal
recognizance bond defendant has been on for the last year. Prosecuting
attorney, Craig Caldwell, asked the court to set bail at $7500.00. Instead of
setting a bail bond, Judge Fletcher accessed a fee of $5000.00 in order for
defendant to secure release.
The Texas and United States Constitutions guarantee
defendant the right to a reasonable bond. The Texas Code of Criminal Procedure
at Article 17.01 defines a bail bond as follows:
Art. 17.02. DEFINITION OF "BAIL BOND". A
"bail bond" is a written undertaking entered into by the defendant
and his sureties for the appearance of the principal therein before some court
or magistrate to answer a criminal accusation; provided, however, that the
defendant upon execution of such bail bond may deposit with the custodian of
funds of the court in which the prosecution is pending current money of the
United States in the amount of the bond in lieu of having sureties signing the
same. Any cash funds deposited under this Article shall be receipted for by
the officer receiving the same and shall be refunded to the defendant if and
when the defendant complies with the conditions of his bond, and upon order of
the court.
The right to bond is
Constitutionally protected and the court has no authority to deny it except for
cause shown. In the instant case, there was no cause shown. In fact, the
prosecuting attorney specifically asked the court to set a bail bond.
Defendant specifically asked Judge Fletcher to set a bail bond as defined by
the Texas Code of Criminal Procedure. Instead, Judge Fletcher denied
defendant in a bail bond and, after it was determined that defendant could come
up with a maximum of $2000.00, Judge Fletcher set a fee of $5000.00 cash in
order for defendant to secure release from jail pending appeal.
THE TEXAS CONSTITUTION ARTICLE 1. BILL OF RIGHTS
Sec. 11. BAIL. All prisoners shall be bailable
by sufficient sureties, unless for capital offenses, when the proof is evident;
but this provision shall not be so construed as to prevent bail after
indictment found upon examination of the evidence, in such manner as may be
prescribed by law.
The court may not
capriciously and arbitrarily deny bail. Those instances when bail can be
denied have also been addressed by the Texas Constitution:
Sec. 11a. MULTIPLE CONVICTIONS; DENIAL OF
BAIL.
(a) Any person
(1) accused of a felony less than
capital in this State, who has been theretofore twice convicted of a felony,
the second conviction being subsequent to the first, both in point of time of
commission of the offense and conviction therefor,
(2) accused of a felony less than
capital in this State, committed while on bail for a prior felony for which he
has been indicted,
(3) accused of a felony less than
capital in this State involving the use of a deadly weapon after being
convicted of a prior felony, or
(4) accused of a violent or sexual
offense committed while under the supervision of a criminal justice agency of
the State or a political subdivision of the State for a prior felony, after a
hearing, and upon evidence substantially showing the guilt of the accused of
the offense in (1) or (3) above, of the offense committed while on bail in (2)
above, or of the offense in (4) above committed while under the supervision of
a criminal justice agency of the State or a political subdivision of the State
for a prior felony, may be denied bail pending trial, by a district judge in
this State, if said order denying bail pending trial is issued within seven
calendar days subsequent to the time of incarceration of the accused; provided,
however, that if the accused is not accorded a trial upon the accusation under
(1) or (3) above, the accusation and indictment used under (2) above, or the
accusation or indictment used under (4) above within sixty (60) days from the
time of his incarceration upon the accusation, the order denying bail shall be
automatically set aside, unless a continuance is obtained upon the motion or
request of the accused; provided, further, that the right of appeal to the
Court of Criminal Appeals of this State is expressly accorded the accused for a
review of any judgment or order made hereunder, and said appeal shall be given
preference by the Court of Criminal Appeals.
(b) In this section:
(1) "Violent
offense" means:
(A) murder;
(B) aggravated assault, if
the accused used or exhibited a deadly weapon during the commission of the
assault;
(C) aggravated kidnapping;
or
(D) aggravated robbery.
(2) "Sexual
offense" means:
(A) aggravated sexual
assault;
(B) sexual assault; or
(C) indecency with a
child.
(Added Nov. 6, 1956; amended Nov. 8, 1977; Subsec. (a)
amended and (b) added Nov. 2, 1993.)
Sec. 11b. VIOLATION OF CONDITION OF RELEASE
PENDING TRIAL; DENIAL OF BAIL.
Any person who is accused in this state of a felony or an
offense involving family violence, who is released on bail pending trial, and
whose bail is subsequently revoked or forfeited for a violation of a condition
of release may be denied bail pending trial if a judge or magistrate in this
state determines by a preponderance of the evidence at a subsequent hearing
that the person violated a condition of release related to the safety of a
victim of the alleged offense or to the safety of the community.
(Added Nov. 8, 2005; amended Nov. 6, 2007.)
Sec. 11c. VIOLATION OF AN ORDER FOR EMERGENCY
PROTECTION INVOLVING FAMILY VIOLENCE. The legislature by general law may provide
that any person who violates an order for emergency protection issued by a
judge or magistrate after an arrest for an offense involving family violence or
who violates an active protective order rendered by a court in a family
violence case, including a temporary ex parte order that has been served on the
person, or who engages in conduct that constitutes an offense involving the
violation of an order described by this section may be taken into custody and,
pending trial or other court proceedings, denied release on bail if following a
hearing a judge or magistrate in this state determines by a preponderance of
the evidence that the person violated the order or engaged in the conduct
constituting the offense.
(Added Nov. 6, 2007.)
Judge Fletcher exercised
and authority not granted by the Legislature and, in the process, denied
Defendant in the full and free access to the Constitutionally protected right
to reasonable bail. Judge Fletcher, after receiving testimony form the
prosecuting attorney that Defendant has received $2000 in donations from
listeners to Defendant’s radio station for a defense fund, set a fee at 2 ½
times what the court had reason to believe Defendant could raise.
If the court had set
bail at $10,000.00 the state would have been better protected and Defendant
would have been able to secure bail by signing a bail bond or securing a
bondsman which would have cost a maximum of 20% of the bail which would have
been $2000.00. Judge Fletcher’s action demonstrates precisely the evil the
Constitutional protection was intended to prevent. Judge Fletcher created a
condition to where, either Defendant would have to sit in jail awaiting
adjudication of Defendant’s appeal, or somehow come up with 2 ½ times what the
evidence demonstrated Defendant could come up with, then be out of jail with no
funds to secure counsel.
Judge Fletcher exercised
and authority not granted by the Legislature and, in the process, denied
Defendant in the full and free access to the Constitutionally protected right
to reasonable bail. In so doing, Judge Fletcher violated a law relating to his
office and in the process denied Defendant in the full and free access to a
Constitutionally protected right in violation of Texas Penal Code Section
39.03(supra).
(see Criminal Affidavit Section LL attached)
Therefore,
I charge that heretofore, and before the making and filing of this complaint,
on or before the 26th day of November 2011, in Cherokee County and
State of Texas, Craig Foetcher, did then and there unlawfully and
willfully wilfully denied Complainant in the Constitutional right ot bail
and assessed a fee in place of bail absent any authority to do so, in an
act of Official Oppression as defined by Section 39.03 Texas Penal
Code.
________________
Randall Kelton
113 S. Allen St.
Boyd, Tx 76023
5213 430 4140