Dixon, William Michael

• Court: Court of Appeals of Texas
• Decided: August 11, 2015
• Docket: PD-1013-15
• Status: Published

Opinion

PD-1013-15 PD-1013-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 8/6/2015 9:04:26 AM Accepted 8/11/2015 11:32:54 AM ABEL ACOSTA NO. _____________ PD CLERK

IN THE

COURT OF CRIMINAL

APPEALS

OF TEXAS ___________________________________________

WILLIAM MICHAEL DIXON

Petitioner,

VS.

THE STATE OF TEXAS

Respondent _________________________________________________________

Petition in Cause No. 1383453 from the TH 208 District Court of Liberty County, Texas and the Court of Appeals for the 14TH District of Texas _________________________________________________________

PETITION FOR DISCRETIONARY REVIEW _________________________________________________________

DAVID RUSHING 723 MAIN STREET SUITE 816 HOUSTON, TEXAS 77002 (713) 877-1300 davidcrushing@hotmail.com SBOT NO. 24051276 August 11, 2015 ATTORNEY FOR PETITIONER IDENTITIES OF PARTIES AND COUNSEL

PETITIONER: WILLIAM MICHAEL DIXON

PRESIDING JUDGE: HON. WAYNE MALLIA 208th District Court Harris County Courthouse 1201 Franklin, 17th Floor Houston, Texas 77002 (713) 755-6374

PROSECUTORS: MR. JOHN CRUMP MR. DAVID OVERHULS HARRIS COUNTY DISTRICT ATTORNEYS OFFICE 1201 FRANKLIN HOUSTON, TEXAS 77002 (713) 755-5800

TRIAL COUNSEL: MR. DAVID RUSHING 723 MAIN STREET SUITE 816 Houston, Texas 77002 (713) 877-1300

APPELLATE COUNSEL: MR. DAVID RUSHING 723 MAIN STREET SUITE 816 HOUSTON, TEXAS 77002 (713) 877-1300

MR. TOM ABBATE 2425 WEST LOOP SOUTH, STE 200 HOUSTON, TX 77027 (832)-687-6447

APPELLEE COUNSEL: MS. JESSICA CAIRD HARRIS COUNTY DISTRICT ATTORNEYS OFFICE 1201 FRANKLIN HOUSTON, TEXAS 77002 (713) 755-5800 2 TABLE OF CONTENTS

IDENTITIES OF PARTIES AND COUNSEL .........................................................2 INDEX OF AUTHORITIES......................................................................................4 STATEMENT REGARDING ORAL ARGUMENT ...............................................6 STATEMENT OF THE CASE ..................................................................................6 STATEMENT OF PROCEDURAL HISTORY........................................................7 QUESTION PRESENTED FOR REVIEW I ............................................................7 REASON FOR REVIEW ..........................................................................................7 QUESTION PRESENTED FOR REVIEW II .........................................................10 REASON FOR REVIEW ........................................................................................10 PRAYER FOR RELIEF ..........................................................................................12 CERTIFICATE OF SERVICE ................................................................................12 CERTIFICATE OF COMPLIANCE .......................................................................13 APPENDIX ..............................................................................................................14

3 INDEX OF AUTHORITIES Cases Balentine v. State, 71 S.W.3d 763 (Tex. Crim. App. 2002) ......................................8 Curry v. State, 30 S.W.3d 394 (Tex.Crim.App.2000) .............................................11 Dixon v. State, 14-14-00510-CR (Tex.App.-Houston [14th District] 2015) ...........10 Dowthitt v. State, 931 S.W.2d 244 (Tex. Crim. App. 1996)......................................9 Lancon v. State, 253 S.W.3d 699 (Tex. Crim. App. 2008)......................................11 Miranda v. Arizona, 384 U.S. 436 (1966) .................................................................7 Rhodes v. State, 945 S.W.2d 115 (Tex. Crim. App. 1997) ........................................9 Stansbury v. California, 511 U.S. 318 (1994) ...........................................................9 Thompson v. Keohane, 516 U.S. 99 (1995) ...............................................................9 Williams v. State, 235 S.W.3d 742 (Tex. Crim. App. 2007) ...................................11 Statutes Tex. Code Crim. Proc. Ann. art. 38.22 ......................................................................7

4 NO. _____________ PD

OF TEXAS

___________________________________________

Respondent _________________________________________________________

Petition in Cause No. 1383453 from the TH 208 District Court of Liberty County, Texas and the Court of Appeals for the 14TH District of Texas __________________________________________________________

PETITION OF DISCRETIONARY REIVEW TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS OF TEXAS

William Dixon, petitions the Court to review the judgment affirming his conviction for driving while intoxicated, 3rd offender in Cause No. 1383453

5 STATEMENT REGARDING ORAL ARGUMENT

Oral argument would assist the Court to resolve whether the confession was

obtained in violation of the Fourth Amendment, and whether the evidence was

legally sufficient to support the conviction obtained against the Petitioner in this

case.

STATEMENT OF THE CASE

This is an appeal from the Trial Court’s JUDGMENT OF CONVICTION

BY JURY finding WILLIAM MICHAEL DIXON (hereinafter, “Petitioner,”),

GUILTY of the charge of DRIVING WHILE INTOXICATED 3RD OFFENDER and

sentencing him to 40 YEARS TDCJ in Cause No. 1383453. (CLRK. REC. - 82). On

June 7, 2013, a grand jury indicted Petitioner for the above felony offense. (CLRK.

REC. – 10).

On June 18, 2014, a jury was seated and sworn for trial in the above described

cause number. (CLRK. REC. – 63). On June 20, 2014, after hearing testimony from

the State and Defense, the jury was excused to deliberate. (CLRK. REC. – 70). That

same day, the jury returned a verdict of GUILTY. (CLRK. REC. – 78). Later that

day, after hearing testimony from the State and the Defense, the trial judge sentenced

Petitioner to 40 YEARS. (CLRK. REC. – 82). Petitioner filed a NOTICE OF

APPEAL on June 20, 2014. (CLRK. REC. – 87).

6 STATEMENT OF PROCEDURAL HISTORY

The court of appeals rendered its decision affirming the petitioner’s

conviction on July 7, 2015. The Petitioner did not file a motion for rehearing. This

petition was then filed with the clerk of the court of appeals within 30 days after the

ruling.

QUESTION PRESENTED FOR REVIEW I

Did the trial court err in denying Petitioner’s Motion to Suppress his recorded confession?

REASON FOR REVIEW

Petitioner asserts that the trial court erred in denying his motion to suppress

statements he made to Martinez because Martinez interrogated him without

providing him the benefits of warnings set out in Miranda and the warnings required

by Article 38.22 of the Texas Code of Criminal Procedure. See Tex. Code Crim.

Proc. Ann. art. 38.22; Miranda v. Arizona, 384 U.S. 436, 442–57 (1966). It is

undisputed that Petitioner had not received any Miranda warnings or statutory

warnings when he made the statements in question. Petitioner's statements to

Martinez were made in response to questioning by Martinez. Therefore, this court

must decide whether Petitioner was in custody when he made the statements.

Martinez stated that he “detained” Petitioner at the scene by handcuffing him

and placing him in the back seat of the officer’s vehicle, but did not inform Petitioner

that he was under arrest, did not Mirandize him, and testified that Petitioner was not 7 free to leave. (RR.VI – 54, 57). Martinez further testified that he had already formed

the opinion that the Petitioner was intoxicated prior to speaking with him again.

(RR.VI – 59). After finishing his investigation, Martinez transported Petitioner to

the Humble substation to “conduct the field sobriety tests in a more controlled

environment.” (RR.VI – 62). Martinez further stated that he remembered the

Petitioner asking him if he, the Petitioner, was going to jail, to which Martinez

replied that he was not sure. (RR.VI – 84).

Martinez stated that although he recalled Petitioner repeatedly stating that he

was not driving during the trip to the substation, this occurred after Petitioner had

already admitted to driving in response to Martinez’s questions. (RR.VI – 82).

Petitioner asserted that Martinez did not Mirandize him prior to this questioning.

(RR.II – 4). Martinez further testified that Petitioner asked him why he was being

transported to the substation, however, Martinez could not recall whether he had

answered the question. (RR.VI – 83).

Applying the pertinent legal standards to the case under review, the trial court

erred in denying Petitioner's motion to suppress these statements. The placing of

handcuffs on a defendant does not, in and of itself, automatically mean he is in

custody. See Balentine v. State, 71 S.W.3d 763, 771 (Tex. Crim. App. 2002); Rhodes

v. State, 945 S.W.2d 115, 117–18 (Tex. Crim. App. 1997). However, "the ultimate

inquiry is simply whether there [was] a formal arrest or restraint on freedom of

8 movement of the degree associated with a formal arrest." Stansbury v. California,

511 U.S. 318, 322 (1994). The objective circumstances of the interrogation indicate

that a reasonable person would have felt that they were not at liberty to terminate the

interrogation and leave. Id. at 323; Thompson v. Keohane, 516 U.S. 99, 112 (1995).

Further, under the test outlined in Dowthitt, at least three of the four situations

are present: 1) Petitioner was physically deprived of his freedom of action by being

handcuffed and placed in the back of the officer’s vehicle; 2) under such

circumstances, most people would not feel free to leave as they could not open the

door and walk out of the officer’s vehicle; 3) there was probable cause to arrest the

Petitioner, but Martinez did not inform him that he was free to leave. Dowthitt v.

State, 931 S.W.2d 244, 255 (Tex. Crim. App. 1996). Further, the final situation

requires the officers' knowledge of probable cause be manifested to the suspect. Id.

Here, when asked Petitioner asked whether he was going to jail, the officer stated

that he was not sure. (RR.VI – 84). However, Martinez stated that the uncertainty

revolved around whether Petitioner was going to jail for DWI or public intoxication,

and not whether he was going to be released. (RR.IV – 84).

The Court of Appeals, however, stated that the short distance the officer

transported the Petitioner, prior to transporting him to the substation, would not have

led a reasonable person to believe that their freedom of movement had been

constrained to the level of a formal arrest. Dixon v. State, 14-14-00510-CR

9 (Tex.App.-Houston [14th District] July 7, 2015). However, this ignores the fact that

the Petitioner sat, handcuffed, in the back of the patrol car for nearly an hour in total.

Dixon, 14-14-00510-CR. Most reasonable people would not feel that they are free

to leave after they have been restrained for half as much time in the back of a patrol

vehicle. Therefore, both the trial court and the court of appeals erred in holding that

Petitioner was not under arrest during the questioning.

QUESTION PRESENTED FOR REVIEW II

Was the evidence in this case legally insufficient to convict Petitioner of the charge Driving While Intoxicated?

The evidence in this case was legally insufficient to convict Petitioner of the

charge of Driving While Intoxicated as there is no evidence that Petitioner was

actually driving the vehicle at the time of the accident. Castaneda testified that, after

the accident, she saw Petitioner exiting from the driver’s side of the vehicle. (RR.VI

– 12). She did not see anyone else exit the vehicle. (RR.VI – 18).

However, Castaneda also stated that she was not asked if Petitioner was the

driver by the officers at the scene. (RR.VI – 21). Further, Castaneda testified that

during a later photo lineup, she was not sure whether the photo she picked was that

of the Petitioner. (RR.VI – 22). Finally, Ruzzi testified that Castaneda indicated that

she wrote “[p]ossible man I saw getting out of a car,” next to the Petitioner’s photo

during the lineup. (RR.VI – 43). Further, Martinez stated that he had already placed

10 Petitioner in the back of his vehicle before Castaneda identified him as the driver.

(RR.VI – 77). Martinez further testified that the pickup truck was partially blocking

Castaneda’s view when she made her identification. (RR.VI – 80).

Finally, Petitioner presented evidence showing that he indeed was not the

driver during the accident. During the voir dire of the defense’s first witness, Keeton

asserted his Fifth Amendment privilege when asked whether he was driving the

vehicle that night. (RR.VI – 90). Before the jury, Keeton stated that the passenger’s

side door did not open. (RR.VI – 97). Defense counsel also presented the testimony

of Coronado, who stated that Keeton had in fact been driving that night, and that not

all of the doors on the vehicle worked (RR.VI – 104).

Normally, a court must afford almost complete deference to the jury’s

credibility determinations, and may not re-evaluate the weight and credibility of the

evidence or substitute its judgment for that of the fact finder, as any inconsistencies

are resolved in favor of the verdict. Williams v. State, 235 S.W.3d 742, 750 (Tex.

Crim. App. 2007); Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008);

Curry v. State, 30 S.W.3d 394, 406 (Tex.Crim.App.2000). However, this case bears

further consideration due to the admission of illegally obtained evidence. Therefore,

court of appeals’ ruling on this matter was incorrect because of its erroneous decision

regarding the motion to suppress.

11 PRAYER FOR RELIEF

ACCORDINGLY, this Court should GRANT this PETITION FOR

DISCRETIONARY REVIEW and ORDER briefs on the merits to answer the

question of whether the evidence against the Petitioner was legally sufficient to

support his conviction.

Petitioner further prays for all relief to which he may be entitled.

Respectfully submitted,

__________________________ DAVID RUSHING 723 MAIN STREET SUITE 816 HOUSTON, TEXAS 77002 (713) 877-1300 davidcrushing@hotmail.com SBOT NO. 24051276

ATTORNEY FOR PETITIONER

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing PETITION FOR

DISCRETIONARY REVIEW was delivered to the HARRIS County District

Attorney’s Office by hand delivery on August 6, 2015.

__________________________ DAVID RUSHING

12 CERTIFICATE OF COMPLIANCE

I hereby certify that there are 2,000 words contained in this document.

13 APPENDIX

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