## In the Court of Appeals Second Appel late District of Texas at Fort Worth

__________________ _________ No. 02

- 21

- 00016

- CR

___________________________

On Appeal from the 211th District Court Denton County, Texas Trial Court No. F20

- 2507

- 431 Before Womack, Wallach, and Walker, JJ. M emorandum Opinion by Justice Walla ch 

### Ex parte Jay Allen Rotter2 MEMORANDUM OPINION Appellant Jay Allen Rotter, a fo rmer narcotics officer with the Tarrant County Sheriff ’ s Department, stands charged with murder, tampering with evidence , and possession of a controlled s ubstance
. Bail was initially set at $ 1 millio n, $150,000, and $10, 000, respectively, but after Rotter a pplied for habeas relief the trial court partially granted his request and lowered t he bail amount for the murder char ge to $750,000 and th e tampering ch arge to $10,000. It d id not lower the bail amount for the possession charge. Ro tter app eals the trial court ’ s partial grant of relief in respect to the murder cha rge , arguing that the t rial court abused its discretion by no t lowering i t further. Because we cannot conclude th at the trial court err ed by sett ing b ail at $75 0,000 for the murder charge, we affirm its order partially grant ing the requested relief. Background On August 26, 2020, Rotter called 911 to report th at his girlfriend , Lesl ie Hartman , had shot and killed herself
. Durin g a police interview the next day , Rotter claimed that Hartman had retrieved his dut y weapon without his knowledge and then shot herself “ w hile the y were hugging each other , ” and he imme diately called 911. But Detective Rodne y Mooneyh am became suspi cious o f Rotter ’ s explanation of events when Rott er reset his phone to factor y settings as Detective Mooneyham briefly stepped out of the room. After considering video footage recovered from a neighbor ’ s surveillance c amera and data recovered from Hartman ’ s phone and3 Rotter ’ s computer , 1 Detective Mo oneyham c oncluded that Rotter had murdered Hartman. T h e foll owing is a recitation of rele vant facts a s test ified to at the b ail hearing and as sworn to by Detect iv e Mo oneyham in his probab l e - cause affidavit , which was admitted into evidence
. Text messages sent by Hartman to a friend on the night she died did not suggest that she was feeling de pressed or suici dal, but they did describe Rotter as “ in a

‘ mood ’ ” and t hat he needed t o “ so rt him self out ” because he was “ having trouble with the amount of drugs he . . . [was] consuming. ” 2 Her last message , sent at 11:12 p. m., commented on the weather. The neighbor ’ s surve illance camera recorded the sound of one gunshot at approximat ely 11:04 p.m. t he night Hartman died

— thirty minutes before Rotter ’ s 11:34 p.m. call to 911. At 11 :06 p .m. , Rotter post ed in a Discord 3 chat room that he had gone int o the backyard and “ killed that milk bomb. ” Det ective s recover ed a shell casi ng and milk bottle with a bul let hole through it in the backyard.

1 The phone an d computer were se arched pursuant to s earch warrant s.
2 Detectiv e Mooneyham down played d epressed or suicidal text message s a nd “chat messages ” sent at other times by Har tman b y explaining that each time she mentioned suicidal thoughts sh e also said t hat she could not go through with it becau se s he “ha[d] to live for [h e r] mom, ” who was battl i ng c anc er at the time.
3 Detective Mooneyham described Discord as “a gam ing app where a lot of people who play a lot of games , th ey talk to each ot her online
. ”4 At 11:08 p .m., Rotter posted on Di scord a photo of him holding a Glock pistol in what app eared to be the bedroom in which Hartman later died. In the backgrou nd of the p icture, a computer monitor dis play ed an image of a Discord chat room. At 11:13 p.m., Rotter reported on Discord that h e and Hartman were arguing over his firing the gun in the backyard. At 11:14 p .m., Rot ter post ed on the Disco rd chat ser ver, “ I just sent a 9 millie in this fuckin hippie. ” Detective Mooney ham interpreted the “ hippie ” comment as referr ing to Hartman because she was “ eco - friendly, [a] nature lover, and . . . use[d] psychedelic drug s. ” In Septemb er 2020, Ro tter attempted suicide shortly after Detective Mooneyham informed Ro tter that he had obt ained a search warrant for Rotter ’ s DNA
. In September 2 020 , he was arrested , and his b ail was set at $1 million for the

mu rder charg e, $150,000 for tampering with evidence, and $ 10,000 for the drug

possession charge. He applied for a w rit of habeas corpus, arguing that the b ail
amount s were unreasonably high and asking t he trial court to lower the murd er
charge b a il to $50,000
. At the habeas hearing , Rotter ’ s ex - wife , his mother, and the mother of his child testified coll ectively that Rotter could post a ma x im um bond of $125,000 and that they would ensure tha t he would comply with bond conditions
. Hi s ex - wife, Jessica Bowman, testified to her management of his finances , that his retirement funds had been used to pay legal fees, and th at he only had a couple thou sand dollars left i n h is5 savings account. Norissa Byrne, the mo ther of his chi ld, testif ied that she had agreed to suspend his child

- support obligation during the pendency o f these proceedings. An area bail bondsman , Shawn Cagle, t estified that the mos t the family could come up with is $12,500, giving them bo nding power of $125,000. Rotter ’ s mother testified that he does not pose a threat to the community and that he is willing to go to therapy , but Detective Mooneyham testified to his concern
t hat Rott er may attempt sui cide again if release d. At the end of th e hearing, the trial court partially granted relief by r educing the murder bail to $750,000 and the evide nce - tampering bail to $10,000. Rotter only appeals the tr ial court ’ s de cision in respect to t he mu rder bail. Discussion Rotter co mplains the trial court abused its discretion for three reaso ns : 4 (1) proper consideration of the relevant factors di ctate s that the bail amount should be lower; (2) the $750, 000 bail amount is incongruent with similar c a ses reviewe d in Texas cour ts; and (3 ) the $750,000 bail amount is “ presumptively oppressive. ” I . Standard of Review The primary purpose for se tting bail is to secure the presence of the def endant in court at his trial
. Ex parte Vas quez , 558 S.W.2 d 477, 479 (Tex
. Crim. Ap p. 1977)
. T h e amount should be sufficiently high to give reasonable assurance that the

4 Ro tter presents his argument as one is sue with the t h ree categ ories as subi s sues.6 defendant will comply with the undertaki ng but should not be set so high as to be an i n strument of oppression
. Ex parte Bufkin , 553 S.W.2d 11 6, 118 (Te x. Crim . App. 1977 )
. In setting bail , courts are to consider certain factors including the length of the
sentence and nature of the offense , incl uding any aggravating factors ; the defendant ’ s work history, family ties, and length of residency; the defendan t ’ s abi lity to pos t the bond; any prior criminal record ; and conformity with past bond conditions
. Tex. Code Crim. Proc. Ann. ar t. 17.15 ; Ex part e Rubac , 611 S.W.2d 848, 849

– 50 (Tex. Crim. Ap p . [Panel Op.] 1981)
. In contesting the amount of bail, the defe ndant has the bur den to show t hat it is exce ssive
. Ex parte Rodriguez , 595 S.W.2d 549, 550 (Tex. Crim. App. 1980). We review the trial court ’ s d ecision in setting bail for an abuse of discre t ion, a nd we will not disturb its de cisio n if it is withi n the zon e of r easonable d isagreement
. Ex parte Wood , 308 S.W .3d 550, 552 (Tex. App.

— Beaumont 2010, no pet.)
. II . Application of t he Rubac factors Rott er ’ s fir st subissue evaluates the facts in lig h t of the Rubac factors regarding appropriate bail amount s. A . Nat ure of offens e and range of possible sentence The nature of the offense and the possible sentence are the “ primary factors ”

we co nsider in ev aluating a bail decision. Ex p arte Hunt , 138 S
. W
. 3d 503, 506 (Tex. App.

— Fort W orth 2004 , pet. r ef ’ d)
. R otter stand s ac cused of mu rder , a fi rst

- degree7 felony , for which he fac es a possib l e five to ninety

- nine years or life in pri son and a f ine up to $10,000
. Tex. Penal Code Ann. § § 12.32, 19.0 2. T he t r ial court was presented with se veral i nconsistencies b et ween Rotter ’ s
s tory of eve nts and other evide nce . Though Rotter a rgues in his brief that the State f

ailed to firmly estab lish any such “ irregularities ” o r in consistencies, that was a determination fo r the trial court t o make as the hearing ’ s fact finder. Cf
. Tex. Code Cri m. Proc. An n. art. 38.04 ; Queeman v. State , 520 S.W .3d 616, 622 (Tex. Crim. App. 2017). The trial court was in the b est position to weigh Detective Mooney ham ’ s credibility and his opin i on that Rotter lied to police when he r eported Hartman ’ s deat h as a sui cide
. Give n the evidence in the record, we ca nnot conclude that the trial court erred by finding Detective Mooneyham ’ s testimony credible regarding the nature of the offense for purpo s es of setting bail. Detective Mooneyham testified to his review of Ha rt man ’ s phone and his conclusion that Hartman was not depressed or s uicidal o n the day she died
. He reported that, r ather than expressing su icidal id eations, she complained to her friend about Rotter ’ s behavior and drug us e that night . I n the past, she had d isavowed an y exp ressed suicidal thoughts out o f concern that she had to take care of her cancer
stricken mother. The trial court heard ho w Rotter erased data stored on his pho ne in th e midst of his po lice interview, potentially destroying e vidence simila r to the Dis cord messages found on his compute r . Usin g those messages and a neig hbor ’ s surveillance8 video, Detective Mooneyham was able to construct a timeline during which Rotter may h a ve shot a milk bottle in the backyard, gotten into an ar gument with Ha r tman
over f iring his gun , and then post ed o n Discor d that they had been arguing and “ [he] just sent a 9 millie in this fuckin hippie. ” W ith the pr os pect of a lengthy pr i son sentence , the importance of setting bail sufficient ly high to secu re Rotter ’ s app e arance at trial is heightened. Se e In re Hul i n , 31 S.W .3d 754, 761 (Tex. App.

— Houston [1st Dist.] 2000, no pet.). Combined with the serio us nature of the accusations against Rotter

—hi s alleged murder of Hartman and his possible destruction of evidence of t he murder

— these factors weigh heavily in favo r of a high bail amount to ensure his appearance at trial. B. Rotter ’ s work history , family ties , and attempted suicide Rotter spent 13 y e ars working for the Tarrant County Sheriff ’ s Department and

was a n unde rc over narc otics officer at the time of Hartma n ’ s death. Byrne , who lives in F ort Worth, testified to his involvement as a father a nd described him as “ very caring, very lovin g , very providin g[,] ” and a “ wonderful role m odel
. ” She did not consider h im a flig ht ris k. Byr ne, Bowman , and his own mother all testified in his support and to their desires to have him rele ased. His mother testified that he was willing to go to therapy if released, and she and Bowman testifi ed that they wo uld report a ny bond violation s if he were released. Though his family ties could have wei g hed in favor of a lower bail am ount, we agree with the State that the trial c o urt could have considered their importance9 minimized by evidenc e of Rot te r ’ s suici de attempt and possible drug proble m . See Ex parte Garner , No. 10

- 1 8

- 00129

- CR , 2018 WL 3469834, at *4 (Tex. App.

— Waco July 18, 2018, no pet. ) (mem. op. , not designated for p u blication) (noting defendan t ’ s suicide threats rendered her a f light ri sk and dang er to the community and c itin g simi lar hol dings ). Rot ter ’ s mother admitted that Rotter had attempted sui cide by pill overdo se , and Detective Mo one y ham testified that the att e mpt took place shortl y after requestin g a DNA sample fro m Rotter and ju st be fore h e was arrested and charged with mur der. Detective Mooneyham expressed his concern that Rotter was at risk of attem pting suicide again if released
. Rott e r countered this with testimony by a records c us tod ian o f the sheriff ’ s office tha t he had been taken off suicide watch while in carcerate d , but the custodian also admitted that Rotter had not partici pated in any substa nce - abuse classes such as Narcot i cs Anonymo us. Vie wing his work history and fa mily ties i n li ght of his past suicide attempt and

ev id ence of drug abuse, these factors weigh neut rally

— at best

— in determining the bail amount. C. Rott er ’ s ability to post a bond Rotter ’ s counsel f o cused much of his efforts on conveyi ng Rotter ’ s inabilit y to
meet a $1 million b ail
. Bowman , who has been h andling Rotter ’ s finances since his arrest, test ified that he only ha d a cou ple thousand dollar s in savi ngs and that his $87,000 retirement fund had b e en sp ent after h is arrest. Rotter ’ s family and Cagle testified that the m ost they could gather is $12, 500 , enough to meet a $125,0 0 0 bail10 require ment . Th ough this factor weighs agains t a high bail amount, it is not dispositi ve. Se e E x parte Jones , 803 S.W.2d 71 2, 716 (Tex. Crim. App. 19 91)
. As we and other cour ts have noted, a defendant ’ s simple inability to m eet the bail set by the trial court does not au tomatically render it excessiv e ; to hold otherwise would completely eli minate the trial court ’ s role in setting bond and place the acc used “ in the un ique post u re of determining wh at his bond should be. ” Ex parte B rown , 959 S .W.2d 369, 37 2 ( Tex. App.

— Fort W orth 1998 , no pet.) (quoting E x parte Miller , 631 S.W.2d 825 , 827 (Tex. App.

— F ort Worth, 1982, pet. ref ’ d

) ) ; see also Ex parte Branch , 553 S.W.2d 380, 382 (Tex . Crim. App. 1977) ; Ex parte Cardenas , 557 S .W.3d 722, 734 (Tex. App.

— Corpus Christi

- Edinburg 201 8, no pet.); Wright v. State , 976 S.W.2d 815, 820 (Tex. App.

— Houston [1st Dis t .] 1998, no pet.)
. D. Conclusion Having evalu ated the rel evant factors, only Rott er ’ s inability to post a $750,000 ba il weighs in hi s favor. Given that the inability to post bail is not a dispositive factor, and considering the nature o f the accused crime of murder and potential life sentence, we cannot con clude that the trial court er red by declining to lo wer his bail below $750,000 o n the murder ch arge. We therefore overrule thi s portion of his issue on appe al. II I. Co mpar ing other ca ses In his second s ub issue, Rotter argues that his bail amount runs astray o f similar

cases rev iewed in Texas courts , but his argum ent is inaccurate
. Rela tedly, in his third11 subissue, Rotter argues that the $750,000 bail is “ presumptively oppr essive, ” rel ying

on precedent from our sister court in Houston. See Ex parte Bogia , 56 S.W.3d 8 35, 83 9

– 40 (Tex. A p p.
— Houston [1st D ist] 2001, no p et.)
. We disagree wit h R o tter on both fronts
. We have previousl y not ed that prio r decisions are “ of ‘ relativ ely little value in addressing the ultimate question of the appropriate amou nt of bail ’ in a sp ecific case because appellate decisions on bail matters a re often brief and avoid extended discussions, and because the cases are so individualized that generali zation from results reached in others is diff icult
. ” Ex parte Murray , No s . 0 2

- 13

- 00151

- CR, 02

- 13

- 0015 2

- CR, 02

- 13

- 00153

- CR , 201 3 WL 5425312, at *3 (Tex. App.

— Fort W o rth Sept. 2 6, 2013, no pet.) (mem. op., not des ignat ed f or publi cation) (per curiam) (quotin g Ex parte Beard , 9 2 S.W
. 3d 566, 573 (Tex. App.

— Austin 2002, p et. ref ’ d) )
. In the same case, w e rej ected arguments similar to those Rotter makes in his second and third subissues
. The a ppellant in Murray relied on Ludwig v. St ate , just as Rotter does her e, to argue that hi s bail was presumptively too high because the Court of Criminal Appeals reduced Lu dwig ’s bail on a capital murder charge

— a charge more serious tha n Mu rray ’ s aggr avated

- assault charge

— from $1,00 0,000 to $50 ,000
. Id. ( discussing Ludwig v. State , 812 S.W
. 2d 3 2 3 , 325 (Tex. Crim. App. 1991) ( per curiam) ). As we explained, “significant factua l differences ” between M urray ’s case and Ludwig ’s made the cases incomparable :12 The defendan t in Ludwig , despite his alleged th reats to the victim and vict im ’s family, owned r eal property within Texas, was educated, practiced as a licensed veterinarian in Texas, had no prior criminal record, and was involved in a child custo dy proc eeding that wou ld require his prese nce in the jur i sdiction . Here , appellant ow ns no real property within Texas, has presented no evidence regarding education as it pertains to the likelihood of gainful employment, has presented no more than allusions to po ssible employme nt w ith his step fath er whereby he w ould earn roughly $1,000 per month or potential employment working on a n oil rig with his brother, and , as explained below, has a significant criminal his tory involving violent crimes. Id. (citation and internal quotation marks omitted). Rot ter ’ s case a lso differs sig nificantly from the situation in Lu d wig
. Rotter owns no real pr operty in Texas , of f

ered no evidence of any plan for gainful employ ment if released, and attempted

su icide just before being charged, calling i nto question whether hi s family tie s would outweig h flight

- risk concerns. Based on th e record before us, we c onclude Ludwig and the o ther cases cited by Rotter to be incomp arable here. This court and other s have affirmed bail amounts set at $750,000 or higher in cases of murder or other s erio us first

- degree f elonies. In Ex Parte Green , t his c ourt affirmed a $1, 000,000 bail in a murde r case. No. 0 2

- 13

- 00474

- CR , 2014 WL 584960, at * 2

– 3 (Tex. App.

— Fort Worth Feb. 13, 2014, no pet.) (mem. op . , not designated for publication) (collec ting similar cases of high bail set in connection with mur der charges)
. I n Murray , we affirmed a $750,000 ba i l in the prosecution of an aggravated

assaul t

- with

- a - dea dly

- weapon charge. 201 3 W L 5425312 at * 4. I n a ca p ital

- murder prosecution where the defenda nt did not deliver the fatal blow, we affirmed a13 $500,000 b ai l. Brown , 95 9 S .W.2d at 373
. We are therefore u n persuaded by Rotter ’ s second subissue. As for his third and final subissue, w e h ave not adopted Bogia ’ s holding that a $360,000 bail in a theft ca se i s presumptively oppressive, nor do we fi nd cause to ad opt its reasoni ng in the co ntext of th is case
. Se e 56 S.W.3d at 836. Bai l may be deemed oppressive when the trial court sets the bail at an amount “ for th e express purpose of forcing [a defendant] t o remain incarcerated. ” Ex parte Harris , 733 S.W .2d 712, 714 (Tex. App.

— A ustin 1 9 87 , no pet.) (per curiam)
. The record before us

c o ntains no evidence that the trial court ’ s express purpose of setting a $ 750,000 b ail

— lowered from $1 million

— was to keep Rott er incarcerated. We therefore overrule the remai nder of his argument and his sole i ssue in it s entiret y. C o nclusion Having overr u led Rotter ’ s issue on appeal, we affirm the trial court ’ s order.

/s/ Mike Wallach M ike Wallach Justice Do Not Pu blish Tex. R. A pp. P. 47.2(b ) Delivered : May 20, 2021