Ex Parte Green

553 S.W.2d 382 (1977)

Ex parte G. W. GREEN.

No. 54906.

Court of Criminal Appeals of Texas.

July 13, 1977.

Gregory L. Hennig, Houston, for appellant.

Jim D. Vollers, State's Atty., and David S. McAngus, Asst. State's Atty., Austin, for the State.

PHILLIPS, Judge.

This is an appeal from an order denying appellant's application for writ of habeas corpus and refusing appellant's application for bail. Appellant stands indicted for the offense of capital murder.

In order to meet its burden of proof to establish the proof is evident, the State offered the testimony of a deputy sheriff who observed the scene of the alleged offense and who interviewed appellant after he had been taken into custody. This testimony established that deceased was found in the kitchen of his home; deceased had been shot; and "the kitchen was tore up". A written statement given by appellant was admitted into evidence over objection.

Appellant's sister also testified at the hearing on the habeas corpus application. She stated appellant did not own a house and to her knowledge did not own a car. She stated appellant's family would try to make a bond in the amount of $10,000.00.

Although the decision of the trial judge that the proof is evident is entitled to weight on appeal, we 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." See Ex parte Wilson, Tex.Cr.App., 527 S.W.2d 310, 312; Ex parte Cevallos, Tex.Cr.App., 537 S.W.2d 744; Ex parte Hammond, Tex.Cr.App., 540 S.W.2d 328; Ex parte Derese, Tex.Cr.App., 540 S.W.2d 332. Cf. Ex parte Davis, Tex.Cr.App., 542 S.W.2d 192.

*383 The judgment of the trial court denying bail to the appellant is reversed. Bail is set in the amount of $25,000.00.

DOUGLAS, J., dissents.