                                                                              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
