ACCEPTED 07-14-00433-CR SEVENTH COURT OF APPEALS AMARILLO, TEXAS 1/13/2015 2:50:32 PM Vivian Long, Clerk
No. 07-14-00433-CR FILED IN 7th COURT OF APPEALS __________________________________________ AMARILLO, TEXAS 1/13/2015 2:50:32 PM In the Court of Appeals for the VIVIAN LONG CLERK Seventh Judicial District Amarillo, Texas _______________________________________
EX PARTE THOMAS MICHAEL DIXON, Appellant. _______________________________________
On Appeal from the 140th District Court Lubbock County, Texas The Honorable Jim Bob Darnell Presiding ____________________________________________________________
APPELLANT’S BRIEF ____________________________________________________________
Frank Sellers Daniel W. Hurley Selden Hale HURLEY, GUINN & SELLERS ATTORNEY AT LAW 1805 13th Street 310 Southwest 6th Avenue Lubbock, Texas 79401 Amarillo, Texas 79101 P: 806.771.0700 P: 806.372.5711 F: 806.763.8199 F: 806.372.1646
ATTORNEYS FOR APPELLANT
ORAL ARGUMENT NOT REQUESTED L IST OF P ARTIES & C OUNSEL
Defendant/Appellant Trial and Appellate Counsel
Thomas Michael Dixon Frank Sellers Daniel W. Hurley HURLEY, GUINN & SELLERS 1805 13th Street Lubbock, Texas 79401 P: (806) 771-‐‑0700 F: (806) 763-‐‑8199 E: frank@hurleyguinn.com
The State of Texas Appellate Counsel
Jeff Ford Lauren Murphree Wade Jackson LUBBOCK COUNTY DISTRICT ATTORNEY’S OFFICE P.O. Box 10536 Lubbock, Texas 79408-‐‑3536
Trial Counsel
Matt Powell Sunshine Stanek Wade Jackson Lauren Murphree LUBBOCK COUNTY DISTRICT ATTORNEY’S OFFICE P.O. Box 10536 Lubbock, Texas 79408-‐‑3536
ii T ABLE OF C ONTENTS LIST OF PARTIES & COUNSEL ...........................................................................II
TABLE OF CONTENTS ...................................................................................... III
INDEX OF AUTHORITIES ................................................................................... V
STATEMENT OF THE CASE ............................................................................... 1
STATEMENT REGARDING ORAL ARGUMENT ...................................................... 2
ISSUE PRESENTED .......................................................................................... 2
STATEMENT OF FACTS .................................................................................... 2
SUMMARY OF THE ARGUMENT ......................................................................... 7
STANDARD OF REVIEW .................................................................................... 7
ARGUMENT .................................................................................................... 8
1. Because this appeal deals with a denial of a writ of habeas corpus, this Court has jurisdiction. ...................................................... 8
2. The law prohibits excessive, oppressive bail. ..................................... 9
3. Nearly all of the relevant factors weigh in Dixon’s favor; this Court should reduce bail to $100,000. ........................................................ 10
A. Sufficient to Assure Appearance ................................................. 10
B. Not to be Used as an Instrument of Oppression ......................... 15
C. Nature of the offense ................................................................... 16
D. Ability to Make Bail ...................................................................... 19
E. Future Safety of the Victim and the Community .......................... 21
F. Remaining Factors....................................................................... 21
G. Willing to Comply with Conditions ............................................... 23
iii PRAYER FOR RELIEF ..................................................................................... 24
CERTIFICATE OF SERVICE.............................................................................. 26
CERTIFICATE OF COMPLIANCE ....................................................................... 26
iv I NDEX OF A UTHORITIES
CASES
Badall v. State, No. 09-‐‑04-‐‑211 CR 2004 WL 1699911 (Tex. App.—Beaumont July 28, 2004, pet. ref’d) (not designated for publication) .......................... 12
Ex parte Beard, 92 S.W.3d 566 (Tex. App.—Austin 2002, pet. ref'ʹd) .... 9, 12, 19
Ex Parte Brooks, 376 S.W.3d 222 (Tex. App.—Fort Worth 2012, pet. ref'ʹd) .. 15
Ex Parte Davis, 147 S.W.3d 546 (Tex. App.—Waco 2004, no pet.) ................. 12
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) ................................................................................................. 11, 12
Ex parte Goosby, 685 S.W.2d 440, 442 (Tex. App.—Houston [1st Dist.] 1985, no writ), ............................................................................................................. 13
Ex parte Herrera, No. 05-‐‑14-‐‑00598-‐‑CR, 2014 WL 4207153 (Tex. App.—Dallas Aug. 26, 2014, no pet.) (mem. op., not designated for publication) ........... 8
Ex parte McDonald, 852 S.W.2d 730 (Tex. App.—San Antonio 1993, no writ). ...................................................................................................................... 12, 19
Ex parte Milburn, 8 S.W.3d 422 (Tex. App.—Amarillo 1999, no pet.) .... 10, 13, 14, 21
Ex Parte Miller, 631 S.W.2d 825 (Tex. App.—Fort Worth 1982, pet. ref’d). .. 19
Ex parte Rubac, 611 S.W.2d 848 (Tex. Crim. App. 1981) ............................ 10, 22
In re Durst, 148 S.W.3d 496 (Tex. App.—Houston [14th Dist.] 2004, no pet.) ................................................................................................................ 15, 16, 23
In re Estrada, 398 S.W.3d 723 (Tex. App.—San Antonio 2008, pet. ref’d) ..... 13
v In re Estrada, 398 S.W.3d 723, (Tex. App.—San Antonio 2008, pet. ref’d). ... 20
In re Henson, 131 S.W.3d 645 (Tex. App—Texarkana 2004, no pet.) ............. 12
Ludwig v. State, 812 S.W.2d 32 (Tex. Crim. App. 1991) ................................... 12
Ludwig v. State, 812 S.W.2d 323 (Tex. Crim. App. 1991). ................................ 21
Nguyen v. State, 881 S.W.2d 141 (Tex. App.—Houston [1st Dist.] 1994, no pet.) .................................................................................................................... 23
Ragston v. State, 424 S.W.3d 49 (Tex. Crim. App. 2014) .................................... 8
Smithwick v. State, 880 S.W.2d 510 (Tex. App.—San Antonio 1994, no pet.) 15
Vasquez v. State, 03-‐‑13-‐‑00717-‐‑CR, 2014 WL 3732962 (Tex. App.—Austin July 25, 2014, no pet.) (mem. op., not designated for publication) ..................... 8
STATUTES
TEX. CODE CRIM. PROC. ANN. art. 17.15 .............................................................. 10
RULES
TEX. R. APP. P. 9.5(d) ............................................................................................. 25
CONSTITUTIONAL PROVISIONS
TEX. CONST. art. I, § 11 ......................................................................................... 21
TEX. CONST. art. I, § 13 ........................................................................................... 9
U.S. CONST. amend. VIII ........................................................................................ 9
vi S TATEMENT OF THE C ASE 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. (Id.). A Lubbock County Grand Jury subsequently indicted
Dixon for two counts of capital murder.
Dixon’s trial began on October 27, 2014. (CR 8). After a three-‐‑week
jury trial, the jury was unable to reach a verdict. (Id.). The trial court
declared a mistrial. (Id.).
Several weeks after the mistrial, Dixon filed a writ of habeas corpus
seeking a bond reduction. (Id. at 5). After a hearing on December 17, 2014,
the trial court refused to reduce Dixon’s bail. (Id. at 15). Dixon filed notice
of appeal to this Court the same day. (Id. at 9).
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 mailed to the Court. As the Court can tell from the numbering of the exhibits, this was a defense exhibit. If the Court has not received the DVD, Dixon requests this Court advise the parties in order for the Court to have the benefit of the entire record before deciding this case.
1 S TATEMENT R EGARDING O RAL A RGUMENT In order to allow the Court to render a quick judgment, Dixon does
not request oral argument.
I SSUE P RESENTED Courts are to consider twelve factors when determining an
appropriate bail amount. Numerous courts have approved $100,000 bail in
capital murder cases. Here, only the factors dealing with general nature of
the offense and potential punishment support higher bail. But even those
factors, when carefully considered, support a monumental bail reduction
because six jurors voted to acquit Dixon at his prior trial. Did the trial court
err by refusing to reduce Dixon’s bail from $10,000,000 to $100,000?
S TATEMENT OF F ACTS Thomas Michael Dixon, an Amarillo surgeon, was arrested on July
16, 2012. (2 RR 33). Dixon was charged with two counts of capital murder.
His bail was set at $10,000,000. (2 RR 15; 3 RR 4: DX 1). For eight months,
Dixon was in solitary confinement. (13 TR 24). Dixon never sought a bond
reduction.
2 Over two years later, the State tried Dixon. The State sought to prove
that Dixon hired co-‐‑defendant David Shepard to kill Lubbock pathologist
Joseph Sonnier, III or, alternatively, that Dixon was a party to a murder in
the course of a burglary. After a three-‐‑week jury trial, a Lubbock jury was
unable to reach a unanimous verdict. (CR 8). Two jurors provided
affidavits of their recollection of the final votes prior to the mistrial. (3 RR
15: DX 12; 3 RR 16: DX 13). Both jurors swore that numerous jurors voted to
acquit Dixon of every felony charge submitted to the jury. (3 RR 15: DX 12;
3 RR 16: DX 13.). The State offered no evidence to dispute these affidavits.
Following the mistrial, Dixon filed this application for writ of habeas
corpus seeking a bond reduction. At the hearing, Dixon offered a number
of exhibits and called two witnesses: Ken Herzog and Mary Dixon.
Herzog, manager of Lubbock Bail Bond, the oldest bonding company
in the Lubbock area, testified that it would probably be impossible to post a
$10,000,000 bond in Lubbock County. (2 RR 9). He doubted that any
bonding company would be permitted by its insurance company to write a
bond in that amount. (Id.). Herzog testified his company would require a
3 cash fee of $1,000,000 up front, as well as “collateral – or some kind of
property to back the biggest part of the 10 million.” (Id. at 10). Herzog had
spoken to Dixon’s family and informed them that it would not be possible
for his bonding company to post the bond at its current amount. (Id. at 11).
The State did not question.
Mrs. Dixon, Dr. Dixon’s mother, testified about Dr. Dixon’s
upbringing and her attempts to secure her son’s release on bond. Mrs.
Dixon was born and raised in Spearman, and her family has been there
since the 1800s. (Id. at 18). Likewise, Dr. Dixon was raised in Spearman and
still has family and friends there. (Id. at 19). Dr. Dixon has three children,
ages 15, 19, and 26, all of whom live in Amarillo. (Id. at 19–20). From 2003
until the time of his arrest, Dr. Dixon practiced medicine, specifically
plastic surgery, in Amarillo. (Id. at 20). In addition, Dr. Dixon still owns
Sensei Med Spa, an Amarillo business that has struggled to break even
since his arrest. (Id. at 28).2 Mrs. Dixon also testified about the twelve
Lubbock bonding companies she contacted in order to secure her son’s
2 Sensei does not own any real property. (2 RR 34).
4 release. (Id. at 23). Only one bonding company was willing to make the
current bond, and that company would require a $1,000,000 cash down
payment, as well as collateral worth $3,000,000 from Dr. Dixon. (Id.). Mrs.
Dixon testified that because her family had already spent upwards of
$1,250,000 on the first trial, the family could not afford to make either the
down payment or provide the collateral. (Id. at 23–24).3
Mrs. Dixon also provided insight into her son’s current financial
condition. Since his arrest over two years ago, Dr. Dixon has had no
income. (Id. at 21). Yet, with the help of his family, he has continued to
meet his child support obligations of $1,800 per month, (Id. at 25), as well as
pay contractual alimony of $3,000 per month. (Id.). Dr. Dixon’s only
seemingly significant asset is his home in Amarillo, but the home’s value is
roughly equal to its mortgage debt — perhaps less. (Id. at 26–27). He also
has an interest in an oil and gas lease that pays less than $150 per month
(Id. at 30), as well as a 1994 Jeep valued at $1,500– $2,000. (Id. at 34). Finally,
This is especially true in light of the fact that the State has indicated it may seek the 3
death penalty at the retrial, which would exponentially increase the Dixons’ financial obligations. (2 RR 25).
5 Dr. Dixon had, in his residence at the time of his arrest, $1,800 in currency
and a collection of coins with an unknown value. (Id. at 30).
In light of the astronomical expense the Dixon family has already
incurred and will continue to incur going forward, Mrs. Dixon requested
that the Court set her son’s bond at $100,000. (Id. at 26).
Mrs. Dixon also told the Court that her son was willing to wear a
GPS-‐‑tracking ankle monitor. (Id. at 28). Dr. Dixon also surrendered his
passport to the court. (Id. at 17).
Dr. Dixon offered a number of exhibits in addition to the juror
affidavits mentioned above. He offered ten Lubbock County capital
murder indictments showing the bond amounts for each case. The
admitted exhibits showed that the highest bonds in those cases were
$1,000,000.4 (3 RR 6: DX 3; 3 RR 14: DX 11). Dr. Dixon also offered a DVD
containing all of the witness testimony from his prior trial. (3 RR 17: DX
14).
Despite the fact that the Rules of Evidence do not apply in habeas corpus bond 4
reduction hearings, TEX. R. EVID. 101(d)(1)(E), the trial court refused to admit the indictments from other Lubbock County district courts.
6 The State did not call any witnesses or offer any exhibits.
The trial court denied Dixon’s request. (CR 15).
S UMMARY OF THE A RGUMENT The trial court erred in refusing to reduce Dixon’s bail. The Court of
Criminal Appeals, this Court, and other Courts of Appeals have held
$100,000 as reasonable bail in a capital murder case. The State has already
tried and failed to prove Dixon guilty of capital murder. Dixon has strong
ties to the community, including three children, a business, and a medical
practice in Amarillo, Texas. Dixon’s behavior evidences his desire to clear
his name. Because the State presented no evidence to contest any of these
or the other factors courts must consider when setting bail, this Court must
reduce bail.
S TANDARD OF R EVIEW This Court reviews a trial court’s bail-‐‑amount decision for abuse of
discretion. Ex parte Milburn, 8 S.W.3d 422, 424 (Tex. App.—Amarillo 1999,
no pet.).
7 A RGUMENT 1. Because this appeal deals with a denial of a writ of habeas corpus, this Court has jurisdiction. While the Court of Criminal Appeals does not allow appeals from
pretrial orders denying motions for bond reductions, Ragston v. State, 424
S.W.3d 49, 50 (Tex. Crim. App. 2014), this prohibition does not apply to
writs of habeas corpus seeking the same relief. Ex parte Herrera, No. 05-‐‑14-‐‑
00598-‐‑CR, 2014 WL 4207153, at *3 (Tex. App.—Dallas Aug. 26, 2014, no
pet.) (mem. op., not designated for publication) (“The clerk'ʹs record shows
appellant is appealing from the denial of his writ application. Both
appellant and the State agree the Court has jurisdiction to consider this
appeal . . . . Because jurisdiction is evident, we need not further address
appellant'ʹs first issue.”); Vasquez v. State, 03-‐‑13-‐‑00717-‐‑CR, 2014 WL 3732962,
at *1 (Tex. App.—Austin July 25, 2014, no pet.) (mem. op., not designated
for publication) (“When interpreting the holding in Ragston, various courts
of appeals have concluded that although appellate courts do not have
jurisdiction over interlocutory appeals of motions for bond reductions, they
do have jurisdiction over denials of applications for writs of habeas corpus
asserting that the amount of bail set was excessive.”). Therefore, this Court
8 has jurisdiction to decide whether the trial court abused its discretion in
denying Dixon’s writ application.
2. The law prohibits excessive, oppressive bail. Both our federal and state constitutions forbid excessive bail. U.S.
CONST. amend. VIII (“Excessive bail shall not be required . . . .”); TEX.
CONST. art. I, § 13 (same). In setting bail, the trial court must balance the
accused’s presumption of innocence and the State'ʹs interest in assuring the
accused’s appearance at trial. Ex parte Beard, 92 S.W.3d 566, 573 (Tex.
App.—Austin 2002, pet. ref'ʹd). Bail is excessive if it is “set in an amount
greater than is reasonably necessary to satisfy the government'ʹs legitimate
interests.” Id.
In addition to the constitutional prohibition against excessive bail, the
Texas Legislature has given the following statutory guidelines:
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.
9 4. The ability to make bail is to be regarded, and proof may be taken upon this point.
5. The future safety of a victim of the alleged offense and the community shall be considered.
TEX. CODE CRIM. PROC. ANN. art. 17.15. Texas law further permits
consideration of the following factors: the possible length of sentence for
the indicted offense; the nature and any aggravating factors of the offense;
the accused'ʹs employment record; the accused’s family and community
ties; the accused’s length of residency in the jurisdiction; the accused’s
conformity with previous bond conditions; and the accused’s prior
criminal record. Ex parte Milburn, 8 S.W.3d 422, 425 (Tex. App.—Amarillo
1999, no pet.) (citing Ex parte Rubac, 611 S.W.2d 848, 849–850 (Tex. Crim.
App. 1981)) (citation omitted).
3. Nearly all of the relevant factors weigh in Dixon’s favor; this Court should reduce bail to $100,000. A. Sufficient to Assure Appearance This is not the typical capital murder bond reduction appeal. The
State has had a chance to prove Dixon guilty beyond a reasonable doubt.
Instead, up to six jurors believed he was not guilty.
10 Dixon has been able to find only one case dealing with a bond
reduction following a mistrial based on jury deadlock. Ex parte Evans, No.
06-‐‑11-‐‑00048-‐‑CR, 2011 WL 2623589, at *3 (Tex. App.—Texarkana July 6,
2011, no pet.) (mem. op., not designated for publication). Evans, an
unpublished opinion carrying no precedential value, is distinguishable in
at least three ways. First, the defendant was charged with murder after a
drive-‐‑by shooting. The Court found this significant — likely because drive-‐‑
by shootings by themselves are a danger to the community. Here, Dixon
was not present during the killing of a lone victim. More importantly, the
actual killer and State’s star witness — who is serving a life sentence
without parole — testified that Dixon did not pay for or plan the murder:
[DEFENSE COUNSEL]: Now, almost immediately you told me that Mike Dixon did not pay you to kill Dr. Sonnier; isn'ʹt that true?
[DAVID SHEPARD]: That'ʹs correct, sir.
Q. And you also told me that he was not involved in any way in any planning of the killing of Dr. Sonnier; isn'ʹt that true?
A. Killing or hurting anybody, yes, sir.
Q. In fact, he did not even want him to be harmed in any way; isn'ʹt that true?
A. That'ʹs correct, sir.
(E.g., 10 TR 8). Second, Evans had recent, prior criminal history. Dixon has
none. Finally, the bail in Evans was set at $370,000 — over twenty times less
than the bail here. Evans, No. 06-‐‑11-‐‑00048-‐‑CR, 2011 WL 2623589, at *1.
Because there are no cases like this, the Court must look to what has been
held reasonable in other capital murder cases.
Other courts have held bail of less than $100,000 in capital murder
cases to be reasonable. See Ludwig v. State, 812 S.W.2d 323, 325 (Tex. Crim.
App. 1991) (two counts murder, capital murder for murdering both victims
during same criminal transaction, bail reduced from $2,000,000 to
$1,000,000 by Court of Appeals and then to $50,000 by Court of Criminal
Appeals); Ex parte McDonald, 852 S.W.2d 730, 736 (Tex. App.—San Antonio
1993, no pet.) (bail reduced from $1,000,000 to $75,000).5 Similarly, this
See also Ex Parte Davis, 147 S.W.3d 546, 553 (Tex. App.—Waco 2004, no pet.) (capital 5
murder for hiring and aiding assailants after the drug-‐‑related murder, bail reduced for both defendants from $1,000,000 to $500,000 and $750,000, respectively); Ex Parte Beard, 92 S.W.3d 566, 574 (Tex. App.—Austin 2002, pet. ref’d) (capital murder, injury to elderly person, bail reduced from $8,000,000 to $500,000); Badall v. State, No. 09-‐‑04-‐‑211 CR 2004 WL 1699911, at *4 (Tex. App.—Beaumont July 28, 2004, pet. ref’d) (not designated for publication) (bail reduced from $1,000,000 to $400,000); In re Henson, 131 S.W.3d 645, 651 (Tex. App—Texarkana 2004, no pet.) (three counts of capital murder, bail reduced from $750,000 to $500,000 for each count); In re Estrada, 398 S.W.3d 723, 727–728 (Tex. App.—
12 Court determined in Ex Parte Milburn, that a $2,000,000 surety bond or
$500,000 cash bond was unreasonable and reduced bail to $100,000. 8
S.W.3d 422, 427 (Tex. App.—Amarillo 1999, no pet.).6 At least one court has
observed, “There has been a substantial decrease in the value of the dollar
over these periods of time[,]” Ex parte Goosby, 685 S.W.2d 440, 442 (Tex.
App.—Houston [1st Dist.] 1985, no writ), but actual adjustments for
inflation would look like this:
Case Reduced Bond Amount Amount in 2014 Dollars7 Ludwig $50,000 (1991) $86,692.73 McDonald $75,000 (1993) $122,569.72 Milburn $100,000 (1999) $141,747.30
San Antonio 2008, pet. ref’d) (felony theft of a vehicle, capital murder, and burglary of a habitation, bail reduced from $1,000,000 to $600,000). In Milburn, the victim’s father was charged with capital murder for intentionally or 6
knowingly causing the death of his two-‐‑year-‐‑old son by blunt force trauma to the stomach. Id. at 423. Despite the egregious nature of the offense, this Court reduced the bail because the accused did not have any assets or money for bail, had no prior felony offenses, but did have strong community and family ties. Id. at 426–427. This Court also considered the accused’s denial of any implication in his child’s death. Id. at 427. The Court finally found that the accused did not pose a danger to the community or a flight risk for purposes of the trial. Id. Adjustments were calculated using the U.S. Bureau of Labor and Statistics’ CPI 7
Inflation Calculator. http://data.bls.gov/cgi-‐‑bin/cpicalc.pl (last visited Jan. 13, 2015).
13 Here, Dixon lacks the resources to post bail at the current,
extraordinary amount. (2 RR 21, 26–27). Dixon has had no income for the
past two years. (Id. at 21). He has had to pay monthly expenses, depleting
the only money he had prior to his arrest. Dixon has strong ties to the
community as a businessman and father to children that also currently live
in the Amarillo community. Dixon does not pose any danger to the
community. At the time of his arrest, he had two established businesses, a
home, paid his child support and alimony, and was a productive member
of society. Like in Milburn, Dixon denies any involvement with the offense,
and his denial is corroborated by Shepard’s testimony that Dixon did not
pay, plan, or participate in Sonnier’s murder. Milburn, 8 S.W.3d at 426.
Dixon does not have any criminal history. There is simply no evidence to
even suggest that Dixon will not comply with his court-‐‑ordered
obligations.
Rather, the record strongly supports the opposite conclusion—Dixon
intends to clear his name. Even after police questioned him, Dixon left
town for an overnight trip but returned quickly to Amarillo until the time
14 of his arrest. (13 TR 183–184). Smithwick v. State, 880 S.W.2d 510, 511 (Tex.
App.—San Antonio 1994, no pet.) (commenting on defendant’s voluntary
return to Texas during investigation). And at trial, Dixon insisted upon
testifying. Cross examination alone lasted two days. Put simply, the
evidence supports the conclusion that Dixon wants to return for trial once
again to face these accusations head on.
Moreover, “[t]he State presented no evidence that [Dixon] is a flight
risk or that he has outstanding bonds or warrants[.]” Ex Parte Brooks, 376
S.W.3d 222, 224 (Tex. App.—Fort Worth 2012, pet. ref'ʹd).
This factor weighs in favor of a $100,000 bail, an amount more than
sufficient to assure Dixon’s appearance at his retrial.
B. Not to be Used as an Instrument of Oppression Bail is oppressive when the amount is so excessive that neither the
accused nor the bail bonding companies can afford it. In re Durst, 148
S.W.3d 496, 499 (Tex. App.—Houston [14th Dist.] 2004, no pet.) (reducing
$3 billion bond to $150,000). Here, only one bonding company said it
would be able to make this bond. The trial court, however, expressed
concern over whether that one company would be a member of the bail
15 bond board much longer, making it ineligible to make any bonds. (2 RR
23). Even with the lone willing company, Dixon would be required to pay
$1 million cash, as well as provide an additional $3 million in collateral. As
discussed below, he does not have that ability. Neither does his family,
especially in light of the amount they have already paid and will have to
pay in the future for Dixon’s retrial. Because the $10 million bail seems
“designed solely to prevent [Dixon] from getting out of jail,” it is “being
used as an instrument of oppression.” Durst, 148 S.W.3d at 499.
C. Nature of the offense The State’s theory at trial rested entirely upon a statement made by
co-‐‑defendant David Shepard two years prior to Dixon’s trial. That
statement was Shepard’s lifeline. By giving the statement, the State allowed
Shepard to plead no contest to killing Dr. Sonnier, thereby avoiding the
death penalty in favor of a life sentence without parole. Shepard complied,
entered a plea, and avoided the death penalty. (8 TR 147-‐‑48).
At Dixon’s trial, however, Shepard admitted that he lied in the
statement to obtain the favorable plea bargain. (Id. at 145–147). Repeatedly,
Shepard testified that what he said in his October 2012 statement was not
16 true. (Id. at 226–227) (testifying that his previous statement that Dixon
required him to go by Dr. Sonnier’s house to get Dr. Sonnier’s patterns was
“a complete embellishment, a lie.”); (9 TR 14) (testifying that his previous
statements about how he acquired the murder weapon and that the
weapon was given to him to murder Dr. Sonnier was “a lie.”); (10 TR 70)
(testifying Dixon “never planned anything my decision to go back there[,]”
and that his statement about Dixon’s planning and participation in the
murder was a “complete embellishment.”). Instead, Shepard testified that
Dixon did not pay, plan, or request that Dr. Sonnier be harmed. (Id. at 8)
(testifying that Dixon was not involved in “[k]illing or hurting anybody[,]”
and that Dixon did not want Dr. Sonnier harmed in any way); (Id. at 73)
(testifying that Dixon never planned to harm anyone and that he never
paid Shepard to harm anyone); (Id. at 74) (testifying that “there was never a
plan. If there was a plan, all it was was to – for me to get organized in how
I could try to locate them so we could play the trick on them to cause them
distress in their relationship. . . . But as far as a plan to hurt somebody,
17 there never was a plan.”); (Id. at 163) (testifying that Dixon never asked
Shepard to harm Dr. Sonnier in any way).
Up to half of the jury believed Shepard’s recantation. Looking to
Juror Knight’s affidavit, he avers that six jurors voted not guilty on every
charge except criminal trespass. (3 RR 15: DX 12). And looking to Juror
Fuhrmann’s affidavit, four jurors voted to acquit Dixon of every charge. (3
RR 16: DX 13). Whatever the truth, this is a far cry from an 11-‐‑1 hung jury.
It is likely that if the case were retried, it would again result in jury
deadlock.
Admittedly, a capital murder charge is the most serious in our Penal
Code. Even though the punishment could be death, this case also allowed
for the possibility of probation on both counts. Indeed, the jury charge
included instructions for charges as low as manslaughter in count 1, and
criminal trespass in count 2. (See 3 RR 15: DX 12). Thus, although Dixon is
charged with an offense that is “among the gravest crimes defined in our
criminal law and that it carries a correspondingly severe penalty,” the
Court must remain “mindful of the rights guaranteed appellant under the
18 Texas Constitution, our responsibilities under the Texas Constitution, and
our obligation to uphold the Texas Constitution and adhere to its
principles.” Ex parte McDonald, 852 S.W.2d 730, 735-‐‑36 (Tex. App.—San
Antonio 1993, no pet.).
Because the State has tried and failed to prove Dixon guilty of capital
murder, and up to half of the jury did not believe the evidence was strong
enough to convict him of anything but criminal trespass, the nature and
circumstances of the offense weigh in favor of a significantly reduced bond.
D. Ability to Make Bail “Just as a defendant'ʹs inability to afford bail does not, in itself,
demonstrate that bail is excessive, a defendant'ʹs ability to afford bail in the
amount set does not in itself justify bail in that amount.” Ex parte Beard, 92
S.W.3d 566, 573 (Tex. App.—Austin 2002, pet. ref’d).
The accused must “show that he had made an effort to furnish bail in
the amount set.” Ex parte Miller, 631 S.W.2d 825, 827 (Tex. App.—Fort
Worth 1982, pet. ref’d).
Dixon’s mother testified that she called twelve Lubbock bonding
companies in an attempt to secure her son’s release, and only one bonding
19 company was willing to make the current bond. (2 RR 23). However, Mrs.
Dixon’s testimony indicated that neither Dr. Dixon nor his family can
afford the requisite $1,000,000 cash down payment and $3,000,000
collateral; this is particularly true because the family spent approximately
$1,250,000 for Dr. Dixon’s first trial and faces additional expenses to finance
a retrial. (2 RR 23–24).
Mrs. Dixon’s testimony reflects that the Dixon family is willing to
assist in posting bail (in addition to legal fees and associated expenses for
his retrial), but also reveals the family’s lack of resources to post the current
bail. The Dixon family’s attempts to post Dr. Dixon’s bail after paying for
the trial and for his child support, alimony, and business-‐‑related bills, are
important. But, more importantly, an accused’s family bears no legal
obligation to help him post bail. See In re Estrada, 398 S.W.3d 723, 727–28
(Tex. App.—San Antonio 2008, pet. ref’d).
In addition, Dr. Dixon has been in custody for two years. His funds
have been depleted and his only asset, his house, has no equity. Effectively,
the current bail amount constitutes no bail because it forces Dixon to
20 remain in jail pending retrial. See Ex Parte Milburn, 8 S.W.3d 422, 424 (Tex.
App.—Amarillo 1999, no pet.); see also TEX. CONST. art. I, § 11 (“All
prisoners shall be bailable by sufficient sureties . . . .”). This factor weighs
heavily in favor of a $100,000 bail.
E. Future Safety of the Victim and the Community “The State presented no evidence concerning safety of the
community if [Dixon] is released on bail.” Ex parte Milburn, 8 S.W.3d 422,
426 (Tex. App.—Amarillo 1999, no pet.). This factor weighs in Dixon’s
favor.
F. Remaining Factors In Ludwig v. State, an en banc Court of Criminal Appeals specifically
highlighted a few factors also found here to support its decision to reduce a
capital murder bail from $1,000,000 to $50,000: significant community ties,
license to practice medicine, no prior criminal record. 812 S.W.2d 323, 324
(Tex. Crim. App. 1991). The Ludwig court warned: “[T]his Court has yet to
condone a bail amount even approaching seven figures, even in a capital
case. Id. at 325.
21 Dixon has deep roots in west Texas. He was born and raised in
Spearman, and most of his family still lives there. Dixon still owns a home
in Amarillo. He has three children that live there. He still owns a business
in Amarillo. Prior to his arrest, Dixon made Amarillo his home since 2003.
(13 TR 35). Other than time spent obtaining a master’s degree in Clemson,
South Carolina in the 1980’s, (Id. at 31), and a two-‐‑year surgical specialty at
the University of Oklahoma in the early 2000’s, (Id. at 35), Dixon has lived
in Texas his entire life.
Dixon’s education and employment history support a lower bond. Ex
parte Rubac, 611 S.W.2d 848, 850 (Tex. Crim. App. 1981) (citing “petitioner'ʹs
education and ability to pursue gainful employment” as support for
lowering an appeal bond). Dixon has a chemistry degree from West Texas
State (13 TR 28), a master’s degree in microbiology from Clemson (Id. at
30), an MBA from SMU (Id. at 32), a medical degree from Texas Tech
University Health Science Center (Id. at 34), and a surgical specialty from
the University of Oklahoma (Id. at 34-‐‑35). Prior to his arrest, he was a
licensed surgeon with a practice in Amarillo. (Id. at 35).
22 Dixon has no history of complying with previous bond conditions
because he has no prior criminal record.
Because nearly all of the non-‐‑statutory factors weigh in Dixon’s favor,
this Court must reduce his bail.
G. Willing to Comply with Conditions Willingness to comply with conditions favors a reduction from an
already reasonable bail. In re Durst, 148 S.W.3d 496, 501 (Tex. App.—
Houston [14th Dist.] 2004, no pet.) (citing Nguyen v. State, 881 S.W.2d 141,
144 (Tex. App.—Houston [1st Dist.] 1994, no pet.)). For example, in Durst,
the trial court ordered, inter alia, that Durst surrender his passport and
wear an electronic GPS monitor if he were able to post the $3 Billion bail
set. Durst, 148 S.W.3d at 501. The appellate court, however, first found that
a reduction to “well over . . . $300,000” would be reasonable but then
addressed the effect of the trial court’s conditions on the bail amount. Id.
The Court concluded that the conditions imposed brought the otherwise
unusual case into the proper range and ultimately set bail at $150,000 for
each offense. Id.
23 This Court should do the same. Dixon has agreed to self-‐‑imposed
conditions. He surrendered his passport to the Court without being asked
(2 RR 17) and is willing to wear a GPS monitor (Id. at 28). Dixon’s
willingness to comply with these conditions supports an even lower bail.
P RAYER FOR R ELIEF The State of Texas has tried and failed to prove Dixon guilty of
capital murder. In the process, Dixon’s financial resources have been
exhausted, as have over $1 million of his family’s resources. No Lubbock
County capital murder defendant has ever been forced to post a bail as
high as this, even before their first trial. Dixon should not be forced to
either.
WHEREFORE, Dixon prays this Court reverse the trial court’s decision
and fix bail at $100,000, or whatever other amount the Court deems
appropriate.
24 Respectfully submitted,
_________________________ Frank Sellers Texas Bar No. 24080305 frank@hurleyguinn.com Daniel W. Hurley Texas Bar No. 10310200 dwh@hurleyguinn.com
HURLEY, GUINN & SELLERS 1805 13th Street Lubbock, Texas 79401 P: 806.771.0700 F: 806.763.8199
Selden B. Hale, III Texas Bar No. 08734000 Sbhale310@aol.com ATTORNEY AT LAW 310 Southwest 6th Avenue Amarillo, Texas 79101 P: 806.372.5711 F: 806.372.1646
Attorneys for Thomas Michael Dixon
25 C ERTIFICATE OF S ERVICE Pursuant to TEX. R. APP. P. 9.5(d), this brief was served on opposing counsel via email to jford@lubbockcda.com & lmurphree@lubbockcda.com on January 13, 2015.
_________________________ Frank Sellers
C ERTIFICATE OF C OMPLIANCE Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), I hereby certify that this brief contains 4,844 words (excluding the caption, identification of the parties, index, list of authorities, signature, certification, and certificate of compliance). This is a computer-‐‑generated document created in Microsoft Word, using 14-‐‑point typeface for all text, except for footnotes which are in 12-‐‑point typeface. In making this certificate of compliance, I am relying on the word count provided by the software used to prepare the document.