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2 who shot at suspect in burglary face suit

by Spencer Willems | August 27, 2015 at 4:23 a.m.

The Cleburne County man accused of burglarizing the home of a state legislator's father filed suit Wednesday against the lawmaker and the lawmaker's son for shooting at him while he tried to run from the property.

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On April 21, White County sheriff's deputies arrested Henry Balderree of Wilburn after he was shot in the right shoulder.

Rep. John Payton, R-Wilburn, and his son Tyler Payton had discovered a man inside the residence of O.L. Payton, the politician's father and Tyler Payton's grandfather. When the man tried to escape, the two Paytons opened fire.

The legislator said his was a warning shot and missed. But Tyler Payton's shot struck Balderree, according to deputies' reports

The two men held the wounded man at gunpoint until authorities arrived. Balderree was arrested and charged with burglary. Law enforcement officials said the home's gun cabinet had been broken into.

Officials from the Cleburne County prosecutor's office did not return a message for comment Wednesday, but county officials confirmed that Balderree's criminal case is ongoing.

Balderree's attorney, Jono Streit, said the Paytons' actions amounted to assault and false imprisonment. The suit also accuses the Paytons of needlessly causing "extreme fear" and emotional distress through behavior that was "outrageous" and "beyond all possible bounds of decency."

The complaint filed with the Cleburne County clerk's office says the Paytons gave investigators false accounts about Balderree's actions, and alleges that those accounts resulted in unwarranted criminal charges.

The complaint also says John Payton defamed Balderree in public by repeating his version of the events to the media.

On Wednesday, John Payton said he hadn't seen the suit but said he would refrain from commenting until he spoke with an attorney.

Reached by phone Wednesday afternoon, Streit, who is also handling Balderree's criminal defense, said Balderree was the real victim in the April event.

"He was fleeing. He was fleeing, he fell, and he was shot," Streit said. "There are certain things in a civilized society that you should not be allowed to do. You shouldn't be allowed to shoot somebody particularly in a situation like this."

The incident began about 7:37 p.m. when Balderree called 911 from his home to report that "holograms" were outside and that they were men trying to shoot him.

Shortly after, Balderree called 911 again to report he had broken into the home of his neighbor, O.L. Payton, for safety, according to deputies' reports.

Tyler Payton was driving by his grandfather's home, saw Balderree's vehicle there and stopped to find that a side door was open, the reports said.

John Payton arrived with two handguns, according to the lawsuit, and shortly after that Balderree fled from the house.

John Payton told deputies he fired a warning shot. According to deputies' reports, Tyler Payton said the suspect started to flee, but then turned toward him, as though to charge at him, and Tyler Payton fired once.

Streit takes issue with the Paytons' accounts and disputes reports by on-scene investigators bolstering Tyler Payton's account.

"My client was shot when there was no legal justification or authority to be shot," Streit said. "In my mind the fact that he's a state legislator would have some bearing in some way shape or form in how this played out ... that's all I'll say about that."

Metro on 08/27/2015

Print Headline: 2 who shot at suspect in burglary face suit

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