Dixon, Ex Parte Thomas Michael ( 2015 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-0398-15
EX PARTE THOMAS MICHAEL DIXON, Appellant
ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
FROM THE SEVENTH COURT OF APPEALS
LUBBOCK COUNTY
H ERVEY, J., delivered the opinion of the Court in which J OHNSON, K EASLER,
R ICHARDSON, and N EWELL, JJ., joined. K ELLER, P.J., and A LCALA, J., concurred.
Y EARY, J. dissented. M EYERS, J., did not participate.
OPINION
This appeal is from an order entered in a habeas corpus proceeding refusing to
reduce bail. Because we hold that the habeas court abused its discretion when it refused to
reduce Appellant’s bail, and the court of appeals erred in affirming the ruling of the
habeas court, we vacate the judgment of the court of appeals, set aside the order of the
habeas court denying relief, and order Appellant’s bail reduced to $2 million.
I.
Appellant was arrested on July 16, 2012, on suspicion of capital murder. His bail
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was set at $10 million. He was subsequently indicted on two counts of capital murder.
The first count alleged that he committed capital murder when he paid a third party to
murder the victim.1 The second count alleged that Appellant was guilty of capital murder
as a party to the offense.2
Appellant’s trial began on October 27, 2014, two years, three months, and eleven
days after he was arrested. Three weeks after his trial started, the judge granted a mistrial
because the jury was unable to reach a unanimous verdict. Appellant subsequently filed a
pretrial application for a writ of habeas corpus seeking to reduce his bail. The habeas
court denied relief, and Appellant appealed that adverse ruling to the Amarillo Court of
Appeals, which affirmed the order of the habeas court. We granted Appellant’s petition
for review arguing that the court of appeals erred.3
II.
1
“A person commits [capital murder] if the person commits murder as defined under
Section 19.02(b)(1) and: . . . the person commits the murder for remuneration or the promise of
remuneration or employs another to commit the murder for remuneration or the promise of
remuneration[.]” TEX . PENAL CODE § 19.03(a)(3).
2
Under the law of parties and relevant to this case, a person may be held responsible for
the criminal actions of another if he “act[ed] with intent to promote or assist the commission of
the offense, [or] he solicits, encourages, directs, aids, or attempts to aid the other person to
commit the offense[.]” TEX . PENAL CODE §§ 7.01(a); 7.02(a)(2).
3
The ground for review states,
The court of appeals has departed from the accepted and usual course of judicial
proceedings and has sanctioned such a departure by the trial court by approving
bail in a capital case in an amount an order of magnitude larger than any
previously approved in a capital murder case in this state, resulting in the instant
bail being used as an instant instrument of oppression.
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The Texas Constitution guarantees that “[a]ll prisoners shall be bailable by
sufficient sureties, unless for capital offenses, when the proof is evident . . . .” 4 T EX.
C ONST. art. I, § 11; see T EX. C ODE C RIM. P ROC. art. 1.07 (same). It also permits the denial
of bail in certain noncapital cases. T EX. C ONST. art. I, § 11a. However, because neither
Section 11 nor Section 11a were invoked in this case, Appellant is entitled to bail that is
not excessive. See id. art. I, § 13 (excessive bail shall not be required); T EX. C ODE C RIM.
P ROC. art. 1.09 (same).
The constitutional right to bail is implemented by Article 17.15 of the Texas Code
of Criminal Procedure. T EX. C ODE C RIM. P ROC. art. 17.15. That Article provides that the
setting of bail is within the discretion of the court, judge, or magistrate setting it, but it
also specifies that that discretion is limited by the Texas Constitution and the five factors
delineated in Article 17.15:
(1) The bail shall be sufficiently high to give reasonable assurance that the
undertaking will be complied with,
(2) The power to require bail is not to be so used as to make it an instrument
of oppression,
(3) The nature of the offense and the circumstances under which it was
committed are to be considered,
4
Under Article I, Section 10, we have interpreted “proof is evident” of a capital offense to
mean evidence that “is clear and strong, leading a well-guarded and dispassionate judgment to
the conclusion that the offense of capital murder has been committed; that the accused is the
guilty party; and that the accused will not only be convicted but that the jury will return findings
which will require a sentence of death.” Ex parte Alexander, 608 S.W.2d 928, 930 (Tex. Crim.
App. [Panel Op.] 1980).
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(4) The ability to make bail is to be regarded, and proof may be taken upon
this point, and
(5) The future safety of a victim of the alleged offense and the community
shall be considered.
Id.
The primary purpose of an appearance bond is to secure the presence of the
defendant in court to answer the accusation against him. Thus, while bail should be
sufficiently high to give reasonable assurance that the undertaking will be complied with,
the power to require bail is not to be used so as to make it an instrument of oppression.
See id. art. 17.15(1)–(2).
III.
The parties’ main arguments turn on how an appellate court should review a bail-
reduction decision for an abuse of discretion. Appellant asserts that the court of appeals
abdicated its role to independently measure the habeas court’s refusal to grant relief
against the relevant bail criteria. The State contends that the court of appeals correctly
applied the abuse-of-discretion standard.
IV.
After examining the opinion of the court of appeals, we agree with Appellant that
it failed to measure the ruling of the habeas court against the relevant bail criteria. For
example, the court stated that “the weight to be given [to] particular testimony and of its
bearing on the factors for setting bail were determinations to be made by the trial court.”
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Ex parte Dixon, No. 07-14-00433-CR, 2015 WL 1040927, at *5 (Tex. Crim. App. Mar. 6,
2015) (per curiam) (not designated for publication) (emphasis added). It also noted that
the credibility and weight determinations made by the habeas judge “may properly have
had a bearing on the court’s evaluation of the statutory and common law factors for
setting bail . . . .” Id. (emphasis added). If this were the extent of an appellate court’s
review for an abuse of discretion, rulings of habeas courts would be almost completely
insulated from review and bail-reduction appeals would be meaningless. Habeas courts
determine the bearing of the evidence on the relevant bail criteria only in the first
instance. On appellate review, it is the duty of the reviewing court to measure the ultimate
ruling of the habeas court against the relevant bail factors to ensure that the court did not
abuse its discretion. See T EX. C ODE C RIM. P ROC. art. 17.15 (statutory factors for setting
bail); see also T EX. C ONST. art. I, § 11–11a, 13 (proof must be evident to deny bail or not
be excessive).
It appears the court of appeals fell into error when it accorded special deference to
the ruling of the habeas court because that judge was also the trial judge who presided of
Appellant’s trial and, therefore, had already seen the evidence. Dixon, 2015 WL at *5.
Using this fact, the court distinguished Appellant’s case from another with similar facts
but in which a different result was reached. See Ex parte Evans, No. 06-11-00048-CR,
2011 WL 2623589 (Tex. App.—Texarkana July 6, 2011, no pet.) (mem. op.) (not
designated for publication). The court reasoned that, unlike in Evans, in which there was
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also a mistrial caused by a deadlocked jury, in this case the “trial judge had before him the
capital murder trial evidence as well as the testimony and other evidence presented live at
the habeas hearing.” Dixon, 2015 WL at *5. To the extent that the court of appeals
abdicated its role to assess the habeas court’s ruling for an abuse of discretion because the
trial judge and habeas judge were one in the same, we cannot agree. Although the
evidence adduced at a mistrial can shed light on relevant bail-determination issues such as
the nature of the offense, the circumstances under which it was committed, and the
strength of the State’s case, that fact should not entitle the decision of a habeas court to
more deference than normal for this type of review. That is, the fact that the habeas judge
and trial court judge are the same person does not necessarily lead to the conclusion that
the court did not abuse its discretion.
On the facts of this case, and after considering the other relevant bail factors and
measuring them against the relevant bail criteria, we hold that the habeas court abused its
discretion when it denied Appellant relief. Similarly, we hold that the court of appeals
erred when it affirmed the habeas court’s ruling denying Appellant relief. We vacate the
judgment of the court of appeals, set aside the order of the habeas court denying relief,
and order Appellant’s bail reduced to $2 million.
Hervey, J.
Delivered: September 16, 2015
Do not publish