Dixon, Ex Parte Thomas Michael ( 2015 )

PD-0398-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 6/18/2015 6:52:18 PM
Accepted 6/19/2015 8:54:41 AM
June 19, 2015 ABEL ACOSTA
NO. PD-0398-15 CLERK
In the
Court of Criminal Appeals
for the
State of Texas
No. 07-14-00433-CR
In the Court of Appeals for the
Seventh District of Texas
No. 2012-435,942
In the 140th District Court
of Lubbock County, Texas
EX PARTE
THOMAS MICHAEL DIXON
Petitioner-Appellant
BRIEF ON THE MERITS
DANIEL W. HURLEY
Tex. SBN 10310200
FRANK SELLERS SELDEN HALE
Tex. SBN 24080305 Attorney at Law
AARON R. CLEMENTS 310 Southwest 6th Avenue
Tex. SBN 00795861 Amarillo, Texas 79101
Email: aaronrc@swbell.net (806) 372-5711 phone
Hurley, Guinn & Sellers (806) 372-1646 fax
1805 13th Street
Lubbock, Texas 79401 ATTORNEYS FOR APPELLANT
(806) 771-0700 phone
(806) 763-8199 fax ORAL ARGUMENT WAIVED
IDENTITY OF JUDGES, PARTIES & COUNSEL
Trial Court Judge: Hon. Jim Bob Darnell
140th District Court of Lubbock County, Texas
Petitioner-Appellant: Thomas Michael Dixon
Trial and Appellate Counsel: Daniel W. Hurley
Frank Sellers
Aaron R. Clements (appellate only)
Hurley, Guinn & Sellers
1805 13th St.
Lubbock, Texas 79401
(806) 771-0700
(806) 763-8199 fax
Selden Hale
310 Southwest 6th Avenue
Amarillo, Texas 79101
(806) 372-5711
(806) 372-1646 fax
Respondent-Appellee: The State of Texas
Trial Counsel: Hon. Matt Powell
Lubbock County Criminal District Attorney
Sunshine Stanek, Ass’t District Attorney
Wade Jackson, Ass’t District Attorney
Lauren Murphree, Ass’t District Attorney
Appellate Counsel: Jeff Ford, Ass’t District Attorney
Lauren Murphree, Ass’t District Attorney
Wade Jackson, Ass’t District Attorney
Lubbock County District Attorney’s Office
P.O. Box 10536
Lubbock, Texas 79408-0536
State Prosecuting Attorney’s Office
P.O. Box 13406
Austin, Texas 78711-3046
i
TABLE OF CONTENTS
IDENTITIES OF JUDGES, PARTIES, & COUNSEL..............................................i
TABLE OF CONTENTS.......................................................................................... ii
INDEX OF AUTHORITIES.....................................................................................iv
STATEMENT OF THE CASE..................................................................................1
STATEMENT REGARDING ORAL ARGUMENT ...............................................2
ISSUE PRESENTED.................................................................................................2
STATEMENT OF FACTS ........................................................................................3
SUMMARY OF THE ARGUMENT ........................................................................7
ARGUMENT AND AUTHORITIES......................................................................10
A. Standard of Review .............................................................................10
B. Factors for Determining Reasonable Bail ...........................................11
C. The Court of Appeals’ Decision..........................................................14
D. Proper comparison of the bail amount in this case to
those set in previous capital murder cases gives rise to an
inference that bail in this case is excessive and
oppressive. ...........................................................................................15
E. Comparison of the facts of this case measured against all
of the criteria for setting of bail, in light of the bail
deemed appropriate in other capital cases, reveals that the
trial court abused its discretion and that the Court of
Appeals erred in holding otherwise.....................................................17
F. The bail amount set in this case has the effect of
operating as an instrument of oppression............................................24
ii
CONCLUSION AND PRAYER .............................................................................27
CERTIFICATE OF SERVICE ................................................................................28
CERTIFICATE OF COMPLIANCE.......................................................................28
iii
INDEX OF AUTHORITIES
CASES PAGE
TEXAS
Balboa v. State, 612 S.W.2d 553 (Tex.Crim.App. 1981) ........................................11
Ex parte Barrera, 2000 WL 280448 (Tex. App. – Houston [1st Dist.] 2000) .........10
Ex parte Beard, 92 S.W.3d 566 (Tex. App. – Austin 2002, pet. ref’d)............passim
Ex parte Davis, 147 S.W.3d 546 (Tex. App. – Waco 2004) ...................................19
Ex parte Estrada, 398 S.W.3d 723 (Tex. App. – San Antonio 2008, no
pet.) ..........................................................................................................16, 18
Ex parte Gonzalez, 383 S.W.3d 160 (Tex. App. – San Antonio 2012,
pet. ref’d) ................................................................................10, 16-18, 20-21
Ex parte Harris, 733 S.W.2d 712 (Tex. App. – Austin 1987, no pet.)....................13
Ex parte Henson, 131 S.W.3d 645 (Tex. App. – Texarkana 2004).............12, 18, 25
Ex parte Ivey, 594 S.W.2d 98 (Tex. Crim. App. 1980) .....................................12, 25
Ex parte Milburn, 8 S.W.3d 422 (Tex. App. – Amarillo 1999) ........................11, 13
Ex parte Reyes, 4 S.W.3d 353 (Tex. App. – Houston [1st Dist.] 1999)...................10
Ex parte Rodriguez, 595 S.W.2d 549 (Tex. Crim. App. 1980) ...............................12
Ex parte Rubac, 611 S.W.2d 848 (Tex. Crim. App. 1981) (panel op.) .............10, 13
Ex parte Scott, 122 S.W.3d 866 (Tex. App. – Fort Worth 2003, no pet.) ......... 11-12
Ex parte Vasquez, 558 S.W.2d 477 (Tex. Crim. App. 1977) ..................................12
In re Durst, 148 S.W.3d 496 (Tex. App. – Houston [14th Dist.] 2004,
no pet.) (op. on reh’g) ..............................................................................13, 24
iv
Ludwig v. State, 812 S.W.2d 323 (Tex. Crim. App. 1991)................................13, 16
Maldonado v. State, 999 S.W.2d 91 (Tex. App. – Houston [14th Dist.] 1999) .......10
Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1991) (op. on reh’g)......11
CONSTITUTIONAL PROVISIONS
U.S. CONST. AMEND. VIII ........................................................................................11
U.S. CONST. AMEND. XIV........................................................................................11
TEX. CONST. ART. I, § 11 .........................................................................................11
TEX. CONST. ART. I, § 13 .........................................................................................11
STATUTES
TEX.CODE CRIM.PROC. ANN. ART. 17.01 (Vernon 2013) ........................................11
TEX. CODE CRIM. PROC. ANN. ART. 17.15 (Vernon 2013) ..............................passim
v
STATEMENT OF THE CASE
Appellant Thomas Michael Dixon was arrested on July 16, 2012, and
charged with capital murder. (3 RR 4: DX 1)1. His bail was set at $10,000,000, an
amount beyond his ability to meet. Id. Dixon was subsequently indicted for two
counts of capital murder alleging that he hired a third party to kill the boyfriend of
Dixon’s former romantic interest.
Dixon’s trial began on October 27, 2014. (CR 8). After three weeks of
evidence, the jury was unable to reach a verdict and the trial court declared a
mistrial. Id.
On December 10, 2014 (almost two and a half years after his original arrest),
Dixon filed a writ of habeas corpus seeking a bond reduction, challenging his
continued incarceration pending trial. Id. at 5 After a hearing on December 17,
2014, the trial court refused to reduce Dixon’s bail. (Id. at 15). The Court of
Appeals upheld the trial court’s decision on March 6, 2015. This Court granted
Dixon’s Petition for Discretionary Review on June 3, 2015, and this proceeding
follows.
1
Citations to the record appear as follows:
Writ Hearing—Reporter’s Record: __ RR __; Defense Exhibit: DX __.
Clerk’s Record: CR __.
Original Trial Transcript: __ TR __, where the first blank represents the day of trial
and the second blank the transcript page. All citations to the original trial come from DX 14
offered at the writ hearing. The writ hearing exhibit volume lists this as a State’s Exhibit that was
provided to the Court of Appeals.
STATEMENT REGARDING ORAL ARGUMENT
Oral argument is waived in order to expedite consideration of this case by
the Court.
ISSUE PRESENTED
Is a bail amount of ten million dollars, almost seven times larger than any
previously approved in a capital case in this state and over three times larger than
any approved in any case in this state, greater than reasonably necessary to secure
the attendance at trial of an accused who has spent three years in jail (including a
mistrial based on the jury’s failure to agree on a verdict), has no remaining
personal net worth, has strong ties to the Panhandle region of Texas and few ties
elsewhere, has no criminal history, is not alleged to have personally participated in
any violent act, and has offered to submit to additional conditions designed to
secure his attendance at trial?
2
STATEMENT OF FACTS
In his application for writ of habeas corpus filed with the trial court,
Appellant Thomas Michael Dixon (hereinafter “Dixon” or “Appellant”) asserted
that the amount of bail set at ten million dollars to secure his release from custody
pending retrial was both excessive and oppressive and should be reduced. (CR 5-
7). At the habeas hearing, Dixon submitted the reporter’s record of the underlying
mistrial along with affidavits from two jurors as to the degree of split within the
jury which resulted in that mistrial. (3 RR 17: DX 14). The underlying trial record
reflects that David Shepard killed Lubbock pathologist Joseph Sonnier, and the
State attempted to show that Dixon paid Shepard to do so because of Dixon’s
jealousy over Sonnier’s relationship with Dixon’s former girlfriend, Richelle
Shetina. Slip Op. at 2. While Shepard pled guilty to capital murder for hire in
exchange for a life sentence, he testified at trial that Dixon never asked nor paid
Shepard to kill Sonnier, and that he pled guilty solely to avoid the death penalty.
Id. Dixon additionally testified in his own defense that he sought to obtain
evidence of Sonnier’s infidelity in an effort to prove such infidelity to Shetina, and
that Shepard’s murder of Sonnier was an independent act never contemplated or
asked for by Dixon. Id. at 2-3.
Dixon offered testimony of a Lubbock County bail bondsman, Ken Herzog,
who testified that he would not be able to write such a bond, and that even if he
3
could, the requirements for payment would themselves be onorous, including a
cash payment of one million dollars plus collateral to secure a substantial portion
of the bond. (2 RR 10).
Dixon’s mother additionally testified. She noted that Dixon was born and
raised in Spearman, Texas, to a family with roots in the original Spearman settlers
and that Dixon still has family and friends there. (2 RR 18-19). She added that he
has deep ties to the Amarillo area, with his house, his former medical practice, and
a break-even spa business located there, and with three children who all live in
Amarillo. (2 RR 19-20, 28). Mrs. Dixon also noted that she contacted all of the
bonding companies in Lubbock in an effort to secure Dixon’s pretrial release, and
that the only one willing to write Dixon’s bond required a one million dollar down
payment in cash and collateral of at least three million dollars, an amount beyond
not only Dixon’s means, but that of his family as well. (2 RR 23-24).
Mrs. Dixon also testified that she was familiar with Dixon’s finances, and
that said finances and assets were essentially depleted. Since his arrest, Dixon has
had no income. (2 RR 21). Mrs. Dixon noted that while Dixon owns a home in
Amarillo, it is encumbered for approximately the full market value. (2 RR 25-27).
Dixon also proffered that while he at one time had a several cars and a trust fund
possessing substantial assets, those assets had been liquidated and used in payment
of his trial expenses, which were substantially larger than one million dollars. (2
4
RR 24, 34). Mrs. Dixon added that Dixon had outstanding mortgage obligations as
well as contractual alimony and child support payments totaling approximately
$7,800 per month which were being covered by herself and Dixon’s sister. (2 RR
25). Mrs. Dixon noted that he is the beneficiary of an oil trust, but that the
amounts Dixon realizes from that trust are in any case less than $150 per month,
with the most recent check being for a substantially lesser amount. (2 RR 29-30).
Dixon proffered that his only other assets are approximately $1,800.00 in cash and
a collection of silver coins. (2 RR 30). Finally, Mrs. Dixon advised the trial court
that Dixon was willing to submit to electronic monitoring as a condition of his
release, and Dixon surrendered his passport to the court. (2 RR 17, 28).
Dixon also offered a number of previous Lubbock County capital murder
indictments which reflected the bond amounts in each case. Those exhibits
reflected that the highest bonds previously set in Lubbock County were for one
million dollars. (3 RR 6: DX3; 3 RR 14: DX 11).
The State declined to offer any evidence other than that elicited via cross
examination, but essentially argued via insinuation that since Dixon’s family had
paid over a million dollars in his defense at trial, that Dixon and/or his family must
have substantial additional resources, and that for this reason, his bond should
remain ten times as high as any previously set in Lubbock County. (2 RR 35).
Despite this lack of countervailing evidence and a showing that the bail amount set
5
was an order of magnitude greater than any previous set in Lubbock County (not to
mention that it was an order of magnitude greater than any previously-approved
bail in a capital case in this State), the trial court nevertheless denied relief. (2 RR
37; CR 15). The trial court specifically stated that its reason for refusing to reduce
the bond amount was “because of the fact that he’s charged with capital murder
and still facing the possibility of life in the penitentiary without parole, and even
the possibility of the death penalty,” specifically giving that factor sole
consequence and disregarding other statutory and common law factors. (2 RR 36).
6
SUMMARY OF THE ARGUMENT
Even taking into consideration the deferential abuse of discretion standard,
the trial court abused its discretion (and the Court of Appeals erred by sanctioning
that abuse) by refusing to reduce its earlier ten million dollar bail in this case,
citing to the nature of this case as a capital case potentially involving the death
penalty as the trial court’s justification.
Bail must be set in an amount which with reasonably assure the defendant’s
attendance at trial; bail set higher than this amount is excessive, and bail set so
high that it guarantees attendance by keeping a defendant incarcerated is
oppressive. TEX.CODE CRIM.PROC. ART. 17.15 provides statutory guidance for
factors courts should take into consideration in setting bail; additionally, several
common law/constitutional factors should be considered. While some factors –
particularly the nature of the crime alleged and the possible punishment – may
have higher importance than others, no one factor is dispositive. Additionally,
inability to make a given bail does not necessarily indicate that such bail is
unreasonable, but by the same token, ability to make a given bail does not justify
setting it at such a level. The question is what bail would reasonably assure
attendance, and this zone of reasonableness may be further defined by looking to
prior bail amounts for similar cases.
7
In the case at bar, the trial court erred by focusing solely on the “nature of
the crime” factor, and the Court of Appeals sanctioned this error by determining
that the trial court had broad discretion to ignore evidence counter to its
determination and that prior bail amounts have no bearing on defining the “zone of
reasonableness.” The trial court thus determined that it would not reduce the ten
million dollar bail set in this case – the highest ever approved by an appellate court
in Texas in any case by a factor of more than three, and the highest capital bail
approved in this state by a factor of almost seven. This departure from prior
reasonable bail amounts itself strongly suggests an abuse of discretion, if not
allows a direct inference that the bail amount was set in an amount calculated to be
oppressive. The determination by the Court of Appeals that the defendant did not
prove the current bail amount to be excessive was therefore erroneous, and should
be reversed.
Additionally, the evidence presented demonstrated that while Dixon has
been charged with capital murder-for-hire, the strength of the State’s case was
relatively weak (as evidenced, in part, by the mistrial in this case and juror
statements following the mistrial). Also, even assuming arguendo that the State’s
allegations are accurate, Dixon is not alleged to have personally engaged in
violence. Furthermore, Dixon presented evidence that after spending resources
necessary to defend himself to date, his personal resources are exhausted, and that
8
the resources available to him from his family (who have been bankrolling his
defense) have dwindled as well, leaving Dixon unable to hire a bondsman, even if
one were able and willing to make such a high bail amount. Dixon also
demonstrated his strong ties via family and employment to the Texas Panhandle
region, his lack of a criminal history of any sort, and that he constitutes no danger
to the victim (who is beyond harm) or to the community at large. Dixon also
offered to submit to conditions which reduce, if not eliminate, any flight risk he
might otherwise pose, including the surrender of his passport and willingness to
undergo electronic monitoring.
In addition to the bail amount approved by the Court of Appeals in this case
giving rise to an inference of excessiveness by being substantially higher than any
prior record (much less normal) appellate-approved bail amount in this State,
comparison of the foregoing facts of this case to (1) the facts of the previous
record-high capital murder bail and to (2) the facts of the closest analogous case
lead to the conclusion that the trial court abused its discretion in setting an eight-
figure bail amount, and that the Court of Appeals erred by sanctioning this abuse of
discretion.
9
ARGUMENT AND AUTHORITIES
This case arises from the Court of Appeals’ sanctioning of the trial court’s
denial of relief on Appellant Thomas Michael Dixon’s application for writ of
habeas corpus. That writ challenged the ten million dollar bail set by the trial court
in the underlying capital murder allegation against Dixon – currently the highest
bail amount ever approved by an appellate court in the State of Texas,2 and an
amount almost seven times greater than the previous record in a capital case of
$1,500,000, set in 2012. Ex parte Gonzalez, 383 S.W.3d 160 (Tex. App. – San
Antonio 2012, pet. ref’d.). For the following reasons, the lower courts’ rulings are
in conflict with precedents of this Court and other courts of appeals, and represent
such a departure from the usual course of judicial proceedings that this Court’s
intervention is warranted.
A. Standard of Review
An appellate court’s review of a trial court’s decision on a request for
reduction of bail is reviewed for abuse of discretion. Ex parte Rubac, 611 S.W.2d
2
The highest approved bail amounts in Texas have been in major controlled substance
trafficking cases, which courts have recognized as “unique” because of the nature of such
offenses, which require participants and assets to be highly mobile and which involve large
amounts of cash, suggesting “monied backers who may consider the cost of bail as a normal
business expense.” Maldonado v. State, 999 S.W.2d 91, 96 (Tex. App. – Houston [14th Dist.]
1999) (reduced bail of $2,500,000 reasonable in drug trafficking case); see also Ex parte Reyes,
4 S.W.3d 353 (Tex. App. – Houston [1st Dist.] 1999) ($3 million bail not excessive in case
involving 721 kg of cocaine); Ex parte Barrera, 2000 WL 280448 (Tex. App. – Houston [1st
Dist.] 2000) (unpublished op.; $3 million bail not excessive in case involving over 2,000 pounds
of marijuana). Despite the proliferation of drug trafficking and concomitant prosecutions
thereof, even this class of cases apparently has yet to see an approved bail amount more than low
seven figures.
10
848, 850 (Tex. Crim. App. 1981) (panel op.). Abuse of discretion review requires
more than merely concluding that a trial court did not act in an arbitrary or
capricious fashion, but requires a reviewing court to “measure the trial court’s
ruling against the relevant criteria by which the ruling was made.” Ex parte Beard,
92 S.W.3d 566, 573 (Tex. App. – Austin 2002), citing Montgomery v. State, 810
S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh’g).
B. Factors for Determining Reasonable Bail
Bail is the security given by a defendant that he will appear in court to
answer the accusation brought against him. TEX.CODE CRIM.PROC. ART. 17.01
(Vernon 2013). Bail balances the presumption of innocence of the accused with
the compelling interest of the State that the accused appear to answer the
accusation against him. See Balboa v. State, 612 S.W.2d 553, 556 (Tex.Crim.App.
1981). Excessive bail is constitutionally prohibited. U.S. CONST. AMENDS. VIII &
XIV; TEX. CONST. ART. I, §§ 11, 13.3 Bail is excessive if it is “set in an amount
greater than is reasonably necessary to satisfy the government’s legitimate
interests.” Beard, 92 S.W.3d at 573 (emphasis added). The primary purpose of an
appearance bond (that is, the government’s principal legitimate interest) is to
3
While both Dixon’s rights under both Federal law and Texas law are implicated by the
trial court’s refusal to set a reasonable bail amount, the Federal Constitutional and statutory
framework for what factors courts should consider is “similar in substance to the factors
considered by Texas courts under the Texas constitution and state law.” Ex parte Milburn, 8
S.W.3d 422, 424 (Tex. App. – Amarillo 1999). Consolidation of these challenges into a single
argument has generally been deemed appropriate. See Ex parte Scott, 122 S.W.3d 866, 868
(Tex. App. – Fort Worth 2003).
11
secure the presence of the defendant at trial on the offense charged. Ex parte
Vasquez, 558 S.W.2d 477, 479 (Tex. Crim. App. 1977); Ex parte Scott, 122
S.W.3d 866, 868 (Tex. App. – Fort Worth 2003, no pet.). Bail should not be set so
high as to guarantee a defendant’s appearance by preventing him from obtaining
pretrial release, but should be high enough to reasonably assure the defendant’s
appearance at trial. Ex parte Ivey, 594 S.W.2d 98, 99 (Tex. Crim. App. 1980); Ex
parte Henson, 131 S.W.3d 645, 646 (Tex. App. – Texarkana 2004).
Ordinarily, a defendant challenging the amount of bail via an application for
writ of habeas corpus bears the burden of demonstrating that bail is excessive. Ex
parte Rodriguez, 595 S.W.2d 549, 550 (Tex. Crim. App. 1980). However, when a
trial court orders bail in an amount extraordinary for a given class of case, such a
“dramatic departure from prior practice is at least suggestive of an abuse of
discretion.” Beard, 92 S.W.3d at 573.
Texas has enacted a statutory framework to help guide courts in ensuring
defendants’ constitutional rights to reasonable bail are secured. TEX. CODE CRIM.
PROC. ANN. ART. 17.15 (Vernon 2013) specifically identifies five specific factors
in determining reasonable bail including that bail “shall be sufficiently high to give
reasonable assurance that the undertaking [of appearing for trial] will be complied
with” but that the “power to require bail is not to be so used as to make it an
12
instrument of oppression.”4 Id. Additionally, the nature and circumstances of the
alleged offense are to be considered along with the ability to make bail5 and the
future safety of a victim of the alleged offense and the community generally.6 Id.
Courts also look to several common law factors such as a defendant’s work record,
family and community ties, length of residency, offered conditions of bond, and
any aggravating circumstances alleged to have been involved in the offense. See
Rubac, 611 S.W.2d at 849-50. Finally, while some authorities have criticized the
use of prior decisions because “appellate decisions on bail matters are often brief
and avoid extended discussions, and because the ‘cases are so individualized,’”
courts nevertheless look to prior cases for instruction and, at a minimum, for some
guidance on whether a given bail amount is within a “reasonable zone of
disagreement” or whether it provides “a dramatic departure from prior practice
4
The prime example of bail being used as an instrument of oppression is when bail is set
outside a defendant’s reach for the express or implied purpose of keeping the defendant
incarcerated pending trial. See In re Durst, 148 S.W.3d 496, 499 (Tex. App. – Houston [14th
Dist.] 2004); Ex parte Harris, 733 S.W.2d 712, 714 (Tex. App. – Austin 1987, no pet.). At least
one Texas court has implied that other circumstances may lead to oppression. Milburn, 8
S.W.3d at 424 (using forced confinement as one example of oppression, implying that others
exist).
5
Ability to make bail – like the other factors – is not individually controlling as to what
constitutes reasonable bail. “Just as a defendant’s inability to afford bail does not, in itself,
demonstrate that bail is excessive, a defendant’s ability to afford bail in the amount set does not
in itself justify bail in that amount.” Beard, 92 S.W.3d at 573.
6
In considering who is a “victim” of an offense for purposes of application of Article
17.15(5), a plurality of this Court has stated, without definitively holding, that the term does not
“cover anyone not actually a complainant in the charged offense.” Ludwig v. State, 812 S.W.2d
323 (Tex. Crim. App. 1991) (per curiam).
13
[which] is at least suggestive of an abuse of discretion.” Beard, 92 S.W.3d at 571,
573.
C. The Court of Appeals’ Decision
The Court of Appeals found that the record in this case did not establish an
abuse of discretion by the trial court. In so doing, the Court of Appeals did not
weigh the ten million dollar bail amount and the evidence presented at the writ
hearing against the relevant Constitutional and statutory criteria, including whether
a bail amount almost seven times higher than any previously imposed in a single
capital murder case itself raises an inference that bail is excessive and is being used
as an instrument of oppression. The Court of Appeals rather focused its analysis
on attempting to give total deference to the trial court’s possible, hypothetical
evidentiary weight and credibility determinations. See Slip Op. at 10-12. In so
doing, the Court of Appeals – in contravention to the opinions of this Court and
other courts of appeals – confused a trial court’s discretion in giving weight and
credence to particular evidence with analysis of how the particular legal factors
implicated by the evidence – particularly undisputed evidence – combine to lead to
a proper legal conclusion on the reasonableness of a given bond amount. See, e.g.,
Slip Op. at 11 (despite evidence of Dixon’s personal situation and ties to Texas and
Amarillo being “essentially undisputed”, the trial court could nevertheless “have
found them unconvincing”, and that “determinations of the weight to be given
14
particular testimony and of its bearing on the factors for setting bail were
determinations to be made by the trial court.” (emphasis added)). The Court of
Appeals thereby abandoned its duty independently “to measure the trial court’s
ruling against the relevant criteria.” Beard, 92 S.W.3d at 573.
This is particularly notable because the trial court in this case expressly
stated that it was refusing to reduce Dixon’s bond on the sole basis that he has been
charged with a capital offense (2 RR 36). The Court of Appeals failed to measure
whether this ruling, including the decision to disregard all other factors regarding
the propriety of a given bail amount, was within the zone of reasonableness.
Furthermore, the Court of Appeals failed to look to the backdrop of previous bail
decisions found to be reasonable (or unreasonable) to determine whether the trial
court’s ruling based on this lone criterion was within the zone of reasonableness.
By failing to properly consider the amount of bail set in this case against the
backdrop of prior approved bail amounts, the Court of Appeals not only condoned
the trial court’s focus on one single bail factor (the general nature of the charge and
possible punishment) but also refused to measure the decision itself (i.e., a refusal
to reduce bail from $10 million simply because a capital case is involved) for
reasonableness.
D. Proper comparison of the bail amount in this case to those set in
previous capital murder cases gives rise to an inference that bail
in this case is excessive and oppressive.
15
In the entirety of reported Texas cases, the highest bail ever approved by an
appellate court in a single-count capital murder case appears to be $1,500,000.00.
Ex parte Gonzalez, 383 S.W.3d 160 (Tex. App. – San Antonio 2012, pet. ref’d).
That case expressly noted that prior to its particular facts, the highest capital bail
approved, reported or not, “even in the most egregious capital murder cases” was
$1,000,000.00. Id. at 164, citing Ex parte Estrada, 398 S.W.3d 723 (Tex. App. –
San Antonio 2008, no pet.). In examining bail amounts, both this Court and the
courts of appeals have been guided by previously approved bail amounts, and have
viewed wildly disproportionate bail amounts with strong suspicion. Ludwig v.
State, 812 S.W.2d 323, 324 (Tex. Crim. App. 1991) (per curiam) (observing that at
that time, “this Court [had] yet to condone a bail amount even approaching seven
figures, even in a capital case.”); Estrada, 398 S.W.3d at 727 (noting that a
detailed review found “no reported Texas case sustaining bail in the amount of
$1,000,000, even in the most egregious capital murder cases”) (emphasis added);
Gonzalez, 383 S.W.3d at 167 (Tex. App. – San Antonio 2012, pet. ref’d)
(Simmons, J., concurring, specifically noting that while the court approved a $1.5
million bail that was “fifty percent higher than any bail amount previously upheld
for a single capital murder charge,” she felt “compelled to caution against
imposing exceedingly large bail amounts that violate the Constitution’s prohibition
against excessive bail.”); Beard, 92 S.W.3d at 574 (specifically noting that
16
consideration of the bail set in other capital murder cases provided appropriate
guidance against which an $8,000,000 bail was an abuse of discretion).
The bail amount set in this case – ten million dollars – is almost seven times
higher than the record amount set in Gonzalez. This situation strongly parallels the
“dramatic departure from prior practice” found to constitute an abuse of discretion
in Beard, in which a trial court set bail in an amount at least ten times greater than
any previously (at that time) approved in a capital murder case. 92 S.W.3d at 573.
The Beard court noted that such a departure, standing alone, “is at least suggestive
of an abuse of discretion,” and went on to indeed find such abuse. Id. Likewise,
the trial court’s departure in this case should be determined to be equally abusive
of the discretion given it, and the judgment of the Court of Appeals holding to the
contrary should be reversed.
E. Comparison of the facts of this case measured against all of the
criteria for setting of bail, in light of the bail deemed appropriate
in other capital cases, reveals that the trial court abused its
discretion and that the Court of Appeals erred in holding
otherwise.
The Court of Appeals relied heavily on language from Beard (cited supra)
noting that reported cases have some usefulness limitations to completely dismiss
the backdrop of reported (and unreported) Texas cases disapproving high bail
amounts and, as a result, to approve the ten million dollar bond set in this case.
Slip Op. at 12, citing Beard, 92 S.W.3d at 571. In so doing, the Court of Appeals
17
ignored (1) Beard’s subsequent note that “[n]evertheless, a review of some recent
capital murder bail cases is instructive” and (2) the entirety of caselaw developed
since Beard’s 2002 decision, which has increasingly become lengthy and extended.
See, e.g., Estrada, 398 S.W.3d 723; Gonzalez, 383 S.W.3d 160; Ex parte Henson,
131 S.W.3d 645 (Tex. App. – Texarkana 2004); Beard, 92 S.W.3d at 571-2.
Turning to the individual bail factors against the backdrop of precedent, in
this case, the Court of Appeals focused on the habeas court’s role as having also
been the trial court as justifying giving outside credence to the trial court’s possibly
having given outsized weight to the nature and strength of the case against Dixon
as a reason justifying approval of the instant bail. Slip Op. at 9-10. By so doing,
the Court of Appeals – which had the trial court record before it and which was
able to succinctly summarize the factual nature of this case for itself – abdicated its
role to independently measure the trial court’s refusal to grant relief against the
Art. 17.15 statutory criteria, common law factors, and (as note, supra, bail amounts
in similar cases).
The evidence reflects that this case involves an alleged murder-for-hire
against a specific target for a specific motive. Dixon was not accused of having
personally been involved in the killing of that specific target. It is undisputed that
Dixon has no prior criminal history. There was evidence that Dixon was and
remains unable to satisfy such a high bail amount, particularly because he has
18
spent almost three years in jail, and remains in custody now, while any reasonable
person with the means to do so would have sought to make bail. While the Court
of Appeals faulted Dixon for presenting “meager” evidence of his financial
condition, that “meager” evidence included many of the most relevant specifics of
major financial assets looked to by this Court and other courts of appeals in bail
cases (i.e., there was testimony regarding Dixon’s home ownership and value vs.
encumbrances, car ownership, and ownership and liquidation of other assets,
including securities investments, as well as testimony regarding his ongoing
liabilities, that painted a clear picture that Dixon himself is destitute and relying on
the largesse of his relatives)7. There was also “essentially undisputed” evidence of
Dixon’s ties to the State of Texas and more particularly the Panhandle region,
including his upbringing in Spearman, his practice of medicine in the Amarillo
community for almost ten years at the time of the alleged offense, and his relatives
(including, but not limited to, his three children and his mother) living in the
Amarillo and Spearman areas. There was no evidence that Dixon presents a threat
to community safety; even taking the State’s allegations as true, his jealousy and
anger were directed at Sonnier, who is now deceased. While the State focused on
trial evidence that Dixon had traveled once internationally to suggest that he might
7
It is also worth noting that the State has consistently expressed disbelief that Dixon is
now essentially without ongoing resources with which to make bail based on the fact that
tremendous sums have already been spent on his defense. 2 RR 35. However, a Court “will not
imply the existence of financial resources absent evidence of their existence.” Ex parte Davis,
147 S.W.3d 546, 551 (Tex. App. – Waco 2004).
19
be a flight risk, there was no evidence that he has any ties (much less significant
ones) to a foreign country, and Dixon sought to allay fears that he might remove
himself from American jurisdiction by surrendering his passport to the trial court.
Furthermore, the Court of Appeals noted but failed to properly consider the fact
that Dixon was initially questioned, but not arrested, regarding the murder, and that
he not only had the opportunity to flee and did not do so, but actually traveled to
Dallas for a car transaction and returned immediately to Amarillo. Slip Op. at 4.
Finally, Dixon agreed to undergo electronic monitoring as a condition of a bail
reduction, even further bolstering the affirmative evidence that Dixon is not a flight
risk or a danger to the community, and that even with a reduced bail, “the
undertaking will be complied with.”
In contrast, the defendant in Gonzalez (in which the Texas capital record bail
of $1.5 million was determined appropriate) was alleged to have personally
committed a violent murder of a public servant with an AR-15 type rifle, with the
victim chosen evidently completely at random. 383 S.W.3d at 163. Gonzalez was
shown to have an extensive criminal history, and to have recently worked or have
addresses in at least five other states and to have extensive ties in Mexico via his
mother and wife. Id. at 163-64. He was also shown to have applied for a job in
Mexico and to have applied for an expedited passport. Id. at 164. An individual
who provided information to the police was shown to personally know Gonzalez
20
and his character and the individual and his family were also shown to be in fear of
reprisal from Gonzalez. Id. Evidence also showed that Gonzalez apparently had
no qualms about using others to obtain weapons and ammunition, including the
murder weapon, and that Gonzalez kept a number of weapons and sizeable
quantities of ammunition at his house. Id. at 163-64. Gonzalez’s evidence of his
financial condition also came from a cousin, who (unlike Dixon’s mother) was
shown to be “wholly unaware of the Gonzalez family finances.” Id. at 162. Each
of these points contrasts sharply with Dixon’s case and leads to the conclusion that
Dixon’s bond should be lower than that approved of the violent cop killer of
Gonzalez, yet the Court of Appeals erroneously determined that the trial court’s
refusal to lower Dixon’s $10 million bail was not an abuse of discretion.
As asserted supra, Dixon’s case is more in line with that of Beard, in which
the defendant was charged with planning the murder of her husband and procuring
another to commit the murder, resulting in that defendant receiving significant
assets from her husband’s estate. 92 S.W.3d at 568-70. Beard’s husband did not
immediately die, and Beard took steps to interfere with the police investigation of
the murder. Id. at 568-69. The court also considered that much of the assets
received by Beard was consumed in the interim by basic living requirements, gifts
to other family members, and significantly, by the “substantial legal expenses”
incurred by both matters surrounding her husband’s estate as well as the pending
21
murder charges. Id. at 570. Medical records reflected that Beard had
psychological problems, but was overcoming them, and that there was an
outstanding protective order against Beard in favor of her daughters as a result of
Beard’s acts or threats of physical violence. Id. The court also noted that Beard
was born in California and had lived in Arizona prior to coming to Texas, and had
moved several times between Travis and Tarrant counties, and was married to an
individual with strong ties to Tarrant and Dallas counties, and that she had a prior
felony conviction in Arizona. Id. at 570-71. In discussing the nature and
circumstances of the offense and its effect upon an appropriate bail amount, the
Beard court observed that:
The murder of which Beard is accused is neither more violent in its
commission nor more abhorrent in its alleged motive than other
capital murders that come before the courts of this state. Although
Beard is accused of planning the commission of a violent crime, there
is no evidence that she has been a violent person in the past. . . . [W]e
find no evidence in this record that Beard is a serious threat to
community safety.”
Id. at 572. The parallels to Dixon’s case are apparent. As with Beard, Dixon is
accused of planning and procuring the services of another to commit murder
against a specific target for a specific reason, and Dixon has no history of violence.
Against this backdrop, taking the nature and circumstances of the alleged offense
into consideration, the sheer amount of Dixon’s bail – twenty times that
determined reasonable in Beard and slightly more than that found unreasonable
22
therein, on facts stronger and more egregious than the alleged conduct in this case
– is sufficient to invoke a presumption that Dixon’s bail is excessive, and that bail
is being used as an instrument of oppression.
The Beard court went on to consider that defendant’s ability to make bail,
and explicitly viewed the evidence “in the light most favorable to the district
court’s order”, finding it “evident that Beard has access to financial resources
exceeding those of most criminal defendants.” Id. at 573. While the Austin court
accepted these propositions arguendo, and even without a detailed showing of
what Beard’s financial resources were, that court noted that access to resources
giving a defendant the “ability to afford bail in the amount set does not in itself
justify bail in that amount.” Id. The court also observed that while the State argued
that Beard “would be likely to flee” if bail were reduced, the circumstances
reflected that Beard had the opportunity to flee after her alleged accomplice was
arrested (as did Dixon), and that she had surrendered her passport to the court (as
did Dixon). Id. The appellate court therefore found that there was no evidence
that Beard represented “an unusual flight risk.” Dixon’s circumstances in this
regard are not only squarely in line with those in Beard, but Dixon went a step
further by volunteering for electronic GPS monitoring, even further reducing the
chance that he might fail to comply with the undertaking of bail, even if bail were
set comparatively low.
23
Beard concluded by noting that the trial court had set her bail at $8,000,000,
and that such amount was “more than eight times higher than the highest bail
previously determined to be reasonable in a reported Texas capital murder case.
Such a dramatic departure from prior practice is at least suggestive of an abuse of
discretion.”8 Id. As with Beard, the trial court in this case set bail almost seven
times higher than the previous record-high reasonable bail in a capital case, and
just as in Beard, this dramatic departure from prior practice is at least suggestive –
if not presumptive – of an abuse of discretion. The Court of Appeals in this case
therefore decided this case in a way that conflicts directly with the prior decisions
of the Austin Court of Appeals and with this Court and other courts of appeals, and
this Court should therefore exercise its supervisory power.
F. The bail amount set in this case has the effect of operating as an
instrument of oppression
Bail set so high as to guarantee a defendant’s appearance at trial (by
ensuring that the defendant does not make bail) becomes an instrument of
8
Without belaboring the issue, there is another Texas case instructive both for its lengthy
discussions of the factors regarding bail as well as its outcome: In re Durst, 148 S.W.3d 496
(Tex. App. – Houston [14th Dist.] 2004) (op. on reh’g). In Durst, the now-notorious heir of a real
estate magnate was charged with three third-degree felonies related to his failure to appear while
on bond for murder (of which he was eventually acquitted) and for mutilation of the corpse;
despite the clear evidence that Durst had access to resources in the millions, his clear willingness
to abscond, given his flight after posting a $300,000 cash bond in the murder case, and his
danger to the community, the 14th District Court of Appeals nevertheless found that setting bond
in the amount of one billion dollars per case constituted an abuse of discretion, and reduced bond
to $150,000 per case. Durst at 500-502. The Durst court specifically found that despite this
“triple risk,” conditions of bond such as monitoring and surrender of a passport specifically
warrant a lowered bail amount. Id. at 501.
24
oppression. Ex parte Henson, 131 S.W.3d 645, citing Ex parte Ivey, 594 S.W.2d at
99. This is precisely what has occurred in this case; the Court of Appeals has
sanctioned the trial court’s refusal to lower bail not on the basis that a lower bail
would be unlikely to secure Dixon’s appearance, but simply on the basis of the trial
court’s possible evaluation of the case against Dixon and determination that Dixon
deserves to be in prison. This makes the bail set in this case punitive in nature, and
implies that it has been set deliberately beyond the ability of Dr. Dixon and his
combined immediate family to satisfy. This is the definition of oppression, and
this Court should reverse the departure of the Court of Appeals from the accepted
and usual course of judicial proceedings.
Furthermore, even assuming, arguendo, that the money which Dixon’s
family has spent on his defense was available to him at the outset of this case, bail
in this case has been set so high for the duration of this case as to force Dr. Dixon
to have to choose between which Constitutional right is more important to him:
the right to release on reasonable bail versus the right to mount a defense via
retention of effective counsel. There appear to be no cases dealing with this issue,
but it is troubling that the State has consistently argued that Dr. Dixon’s choice to
expend his previously-available resources on effective counsel should be held
against him. The State thus implicitly asserts that because the resources expended
might have been able to secure his release before his first trial, that the trial court is
25
therefore justified in continuing that punitive bail amount after the defendant has
exhausted his available resources. See, e.g., State’s Brief on Appeal at 21. This
position effectively punishes Dr. Dixon for vigorously contesting whether he is
guilty of any offense (i.e., for insisting on due process of law with effective
assistance of counsel to the detriment of pretrial release), and itself falls within the
ambit of what the Framers would certainly regard as “oppression.”
26
CONCLUSION AND PRAYER
For the foregoing reasons, Appellant Thomas Michael Dixon respectfully
submits that the trial court erred by refusing to reduce the amount of his bail
pending a second trial for capital murder, and that the Court of Appeals further
erred by sanctioning the trial court’s error, in contravention of relevant precedent
of this Court and other courts of appeals. Appellant further submits that these
departures and conflicts warrant this Court exercising its power of supervision, and
that on consideration of the Article 17.15 factors as well as general factors for
consideration in bail reduction cases, this Court should reverse the judgment of the
Court of Appeals, find that the trial court abused its discretion, and should render
judgment setting bail in the amount of $100,000.00, subject to such terms and
conditions as the Court deems appropriate, or for such other relief as Appellant
may be entitled.
Respectfully submitted,
HURLEY, GUINN & SELLERS
1805 13th Street
Lubbock, Texas 79401
(806) 771-0700
(806) 763-8199 fax
BY: /s/ Aaron R. Clements
AARON R. CLEMENTS
SBN 00795861
e-mail: aaronrc@swbell.net
27
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the above and foregoing
brief was served on opposing counsel via email to the Lauren Murphree, Lubbock
County District Attorney’s Office, lmurphree@lubbockcda.com, on this the 18th
day of June, 2015, and via email to the State Prosecuting Attorney’s Office,
information@spa.texas.gov.
/s/Aaron R. Clements
AARON R. CLEMENTS
CERTIFICATE OF COMPLIANCE
I certify that the foregoing brief complies with Tex.R.App.P. 9.4(i) inasmuch
as according to the word count function of Microsoft Word 2003, this brief
contains 5,618 words exclusive of the matters listed in that Rule, and that this is a
computer-generated document using 14-point or larger typeface for all text except
footnotes, which are in 12-point typeface.
/s/ Aaron R. Clements
AARON R. CLEMENTS
28