                                                                                 PD-0398-15
                          PD-0398-15                            COURT OF CRIMINAL APPEALS
                                                                                 AUSTIN, TEXAS
                                                               Transmitted 4/6/2015 4:24:36 PM
                                                               Accepted 4/15/2015 10:05:21 AM
                                                                                  ABEL ACOSTA
                         NO.                                                              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


April 15, 2015
                               No. 2012-435,942
                           In the 140th District Court
                           of Lubbock County, Texas


                           EX PARTE
                      THOMAS MICHAEL DIXON
                               Petitioner-Appellant


                  PETITION FOR DISCRETIONARY REVIEW


        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
                               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

INDENTITIES OF JUDGES, PARTIES, & COUNSEL...........................................i

TABLE OF CONTENTS.......................................................................................... ii

INDEX OF AUTHORITIES.....................................................................................iv

STATEMENT REGARDING ORAL ARGUMENT ...............................................1

STATEMENT OF THE CASE..................................................................................2

STATEMENT OF PROCEDURAL HISTORY........................................................3

GROUNDS FOR REVIEW .......................................................................................4

        I.      THE COURT OF APPEALS HAS DEPARTED FROM THE
                ACCEPTED AND USUAL COURSE OF JUDICIAL
                PROCEEDINGS AND HAS SANCTIONED SUCH A
                DEPARTURE BY THE TRIAL COURT BY APPROVING
                BAIL IN A CAPITAL CASE IN AN AMOUNT AN ORDER
                OF MAGNITUDE LARGER THAN ANY PREVIOUSLY
                APPROVED IN A CAPITAL MURDER CASE IN THIS
                STATE, RESULTING IN THE INSTANT BAIL BEING
                USED AS AN INSTRUMENT OF OPPRESSION .............................4

ARGUMENT AND AUTHORITIES........................................................................5

        A.      Summary of Facts and Court of Appeals’ Decision .............................5

        B.      Standard of Review ...............................................................................9

        C.      Factors for Determining Bail...............................................................10

        D.      The Court of Appeals failed to properly compare the bail
                amount in this case to those set in previous capital
                murder cases, which amount gives rise to an inference
                that bail in this case is excessive and oppressive ................................11




                                                       ii
        E.      A proper comparison of the facts of this case measured
                against 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.....................................................13

        F.      The trial court’s bail amount has the effect of operating
                as an instrument of oppression ............................................................19

CONCLUSION AND PRAYER .............................................................................21

CERTIFICATE OF SERVICE ................................................................................22

CERTIFICATE OF COMPLIANCE.......................................................................22

APPENDIX




                                                    iii
                                      INDEX OF AUTHORITIES

CASES                                                                                                         PAGE
TEXAS

Balboa v. State, 612 S.W.2d 553, 556 (Tex.Crim.App. 1981) ................................10

Ex parte Beard, 92 S.W.3d 566 (Tex. App. – Austin 2002, pet. ref’d)............passim

Ex parte Estrada, 398 S.W.3d 723, 727 (Tex. App. – San Antonio
      2008, no pet.) ...........................................................................................11, 13

Ex parte Gonzalez, 383 S.W.3d 160 (Tex. App. – San Antonio 2012,
      pet. ref’d) ......................................................................................11-13, 15-16

Ex parte Henson, 131 S.W.3d 645 (Tex. App. – Texarkana 2004).........................19

Ex parte Ivey, 594 S.W.2d 98 (Tex. Crim. App. 1980) ...........................................19

Ex parte Rubac, 611 S.W.2d 848, 850 (Tex. Crim. App. 1981) (panel op.) .......9, 11

Ex parte Scott, 122 S.W.3d 866, 868 (Tex. App. – Fort Worth 2003, no pet.) .......10

Ex parte Vasquez, 558 S.W.2d 477, 479 (Tex. Crim. App. 1977) ..........................10

In re Durst, 148 S.W.3d 496 (Tex. App. – Houston [14th Dist.] 2004,
       no pet.) (op. on reh’g) ....................................................................................19

Ludwig v. State, 812 S.W.2d 323 (Tex. Crim. App. 1991)......................................11

Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991)
     (op. on reh’g) ...................................................................................................9

CONSTITUTIONAL PROVISIONS

U.S. CONST. AMEND. VIII ........................................................................................10

TEX. CONST. ART. I, §§ 11, 13 .................................................................................10

STATUTES


                                                          iv
TEX.CODE CRIM.PROC. ANN. ART. 17.01 (Vernon 2013) ........................................10

TEX. CODE CRIM. PROC. ANN. ART. 17.15 (Vernon 2013) ......................... 10-11, 21

RULES

TEX.R.APP.P. 66.......................................................................................................20




                                                           v
             STATEMENT REGARDING ORAL ARGUMENT

      Oral argument is waived in order to expedite consideration of this case by

the Court.




                                       1
                              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 a three week jury

trial, the jury was unable to reach a verdict. Id. 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, and this Petition

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
mailed to the Court of Appeals.


                                                 2
                STATEMENT OF PROCEDURAL HISTORY

      The Court of Appeals rendered its decision affirming the judgment of the

trial court on March 6, 2015. No motion for rehearing was filed.




                                        3
                           GROUNDS FOR REVIEW

      I.    THE COURT OF APPEALS HAS DEPARTED FROM THE
            ACCEPTED    AND   USUAL   COURSE    OF   JUDICIAL
            PROCEEDINGS AND HAS SANCTIONED SUCH A DEPARTURE
            BY THE TRIAL COURT BY APPROVING BAIL IN A CAPITAL
            CASE IN AN AMOUNT AN ORDER OF MAGNITUDE LARGER
            THAN ANY PREVIOUSLY APPROVED IN A CAPITAL
            MURDER CASE IN THIS STATE, RESULTING IN THE
            INSTANT BAIL BEING USED AS AN INSTRUMENT OF
            OPPRESSION

      The Seventh Court of Appeals held that the trial court did not abuse its

discretion in refusing to lower a bond set at ten million dollars – an amount almost

seven times greater than any bail amount previously approved by a Texas appellate

court in a capital murder case. As such, the Court of Appeals’ opinion in this case

conflicts directly with decisions of this Court and with decisions of its sibling

courts of appeals, and furthermore represents an egregious departure from the

usual course of judicial proceedings so as to call for this Court’s exercise of its

power of supervision.




                                         4
                      ARGUMENT AND AUTHORITIES

      A.     Summary of Facts and Court of Appeals’ Decision

      In his application for writ of habeas corpus filed with the trial court,

Petitioner-Appellant Thomas Michael Dixon (hereinafter “Dixon” or “Petitioner”)

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.




                                          5
      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

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



                                         6
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

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



                                          7
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

was an order of magnitude greater than any previous set in Lubbock County (not to

mention the State generally), 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).

      The Court of Appeals found that this record did not establish an abuse of

discretion. In so doing, the Court of Appeals did not weigh the ten million dollar

bail amount and the evidence 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 being used as an instrument of oppression, but rather focused

its analysis on giving total deference to the trial court’s possible 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 those particular factors combine to reach a legal



                                          8
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 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.” Ex parte Beard, 92 S.W.3d 566, 573 (Tex. App. – Austin 2002,

pet. ref’d).

       B.      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

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.” Beard, 92

S.W.3d at 573, citing Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App.

1991) (op. on reh’g).




                                        9
      C.     Factors for Determining 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. AMEND. VIII; TEX.

CONST. ART. I, §§ 11, 13. 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.      The primary purpose of an appearance bond (that is, the

government’s principal legitimate interest) is to 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.).

      Texas has enacted a statutory framework guiding 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 “should be sufficiently high to

give reasonable assurance that the undertaking [of appearing for trial] will be

complied with” but that bail should not be “so used as to make it an instrument of



                                         10
oppression.” Additionally, the nature and circumstances of the alleged offense are

to be considered along with the ability to make bail and the future safety of a

victim of the alleged offense and the community generally.          Id. Additionally,

courts 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.

      D.     The Court of Appeals failed to properly compare the bail amount
             in this case to those set in previous capital murder cases, which
             amount gives rise to an inference that bail in this case is excessive
             and oppressive.
      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 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 a strong suspicion. Ludwig v.

State, 812 S.W.2d 323, 324 (Tex. Crim. App. 1991) (plurality op.) (observing that

at that time, “this Court [had] yet to condone a bail amount even approaching


                                          11
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

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 that set in Gonzalez. As was pointed out to the Court of Appeals, this

leads to a presumption that bail was set excessively high, in itself discharging

Dixon’s burden of demonstrating his entitlement to a reduction. 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 decided this case in a way which

conflicts with this and other courts of appeals, and has departed from the usual

course of judicial proceedings as to warrant this Court’s exercise of its power of

supervision.



                                        12
      E.     A proper comparison of the facts of this case measured against
             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 which noted

that reported cases have some limitations on usefulness to completely dismiss the

backdrop of reported (and unreported) Texas cases disapproving high bail

amounts. Slip Op. at 12, citing Beard, 92 S.W.3d at 571. In so doing, the Court of

Appeals 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;

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. 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 and to measure the trial court’s refusal to grant relief against the



                                          13
statutory criteria in light of prior cases interpreting those same criteria. This case

involved an alleged murder-for-hire against a specific target for a specific motive,

and 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 from the fact that Dixon has spent two and a half years in jail

awaiting trial that he was (and remains) unable to make bail, and while the Court

of Appeals faulted Dixon for presenting “meager” evidence of his financial

condition, that “meager” evidence did include 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 as

well as testimony regarding his ongoing liabilities to paint a clear picture that

Dixon himself is destitute and relying on the largesse of his relatives). There was

also “essentially undisputed” evidence of Dixon’s ties to the State of Texas,

including his upbringing, his practice of medicine in the Amarillo community for

almost ten years at the time of the alleged offense, and his relatives (including

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 Dixon had traveled once internationally, there was no evidence



                                         14
that he has any ties (much less significant ones) to a foreign country, and Dixon

sought to allay any such fears 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 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 and his

character and the individual and his family were also shown to be in fear of reprisal



                                         15
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 and would support a higher amount of

reasonable bail than Dixon’s case, 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.

      Dixon’s case is more in line with Beard, in which the defendant was charged

with planning the murder of her husband and procuring another to commit the

murder, and as a result, received 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 murder charges. Id. at

570. Medical records reflected that Beard had psychological problems, but was



                                        16
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 – is sufficient to invoke a presumption that

Dixon’s bail is excessive, and that bail is being used as an instrument of

oppression.



                                         17
      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.

      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.



                                         18
Such a dramatic departure from prior practice is at least suggestive of an abuse of

discretion.”2 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 trial court’s bail amount 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

oppression. Ex parte Henson, 131 S.W.3d 645 (Tex. App. – Texarkana 2004),

citing Ex parte Ivey, 594 S.W.2d 98, 99 (Tex. Crim. App. 1980). This is precisely

what has occurred in this case; the Court of Appeals has sanctioned the trial court’s


2
  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.


                                                19
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

exercise its power of supervision to correct the departure of the Court of Appeals

from the accepted and usual course of judicial proceedings. See TEX.R.APP.P. 66.

       Furthermore, the bail in this case has been set so high 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 effective assistance of

counsel. There appear to be no cases dealing with this issue, but it is troubling that

the State argues that Dr. Dixon’s choice to expend his previously-available

resources on effective defense should be held against him, implicitly asserting that

because the resources expended might have been able to secure his release before

his first trial, that the trial court is 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




                                             20
law), and itself falls within the ambit of what the Framers would certainly regard as

“oppression.”

                         CONCLUSION AND PRAYER

      For the foregoing reasons, Petitioner-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 trial court’s

departure from the usual and accepted course of judicial proceedings has been

sanctioned by the Court of Appeals’ decision which itself is in conflict with

opinions of this Court and other courts of appeals. Petitioner 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 find that

the trial court abused its discretion and should set bail in the amount of

$100,000.00, subject to such terms and conditions as the Court deems appropriate.

                                          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


                                         21
                         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 Lubbock County District
Attorney’s Office, jford@lubbockcda.com and lmurphree@lubbockcda.com on
this the 6th day of April, 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 4,323 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




                                         22
        APPENDIX
OPINION OF THE COURT OF APPEALS
                                  In The
                             Court of Appeals
                    Seventh District of Texas at Amarillo

                                   No. 07-14-00433-CR


                       EX PARTE THOMAS MICHAEL DIXON

                         On Appeal from the 140th District Court
                                  Lubbock County, Texas
            Trial Court No. 2012-435,942, Honorable Jim Bob Darnell, Presiding

                                    March 6, 2015

                           MEMORANDUM OPINION
                  Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


      This is an appeal from the denial of habeas corpus relief for bail reduction. An

indictment charged appellant, Amarillo plastic surgeon Thomas Dixon, with the capital

murder of Lubbock pathologist Joseph Sonnier, III. Dixon’s bail was set at $10 million

and he remained incarcerated for over two years pending trial. Dixon’s three-week jury

trial ended in a mistrial on November 20, 2014.       On December 10, Dixon filed an

application for writ of habeas corpus, seeking reduction in the amount of bail. The writ

issued and a hearing was convened on December 17. After the hearing, the court

signed an order denying Dixon the requested relief. Findings of fact and conclusions of
law were not requested or filed. Finding the record does not establish an abuse of

discretion by the trial court, we will affirm its order.


                                          Background


          Sonnier was murdered in his home on July 10, 2012. He was shot and stabbed.

Under the State’s theory of the case, the murder arose from Dixon’s jealousy and anger

over Sonnier’s relationship with Richelle Shetina, with whom Dixon formerly had a

relationship.    The State contended Dixon was aware of his friend David Shepard’s

financial difficulties, and hired Shepard to kill Sonnier in exchange for three bars of

silver.


          Dixon and Shepard were arrested in July 2012. Shepard plead no contest to the

charge of murdering Sonnier for remuneration and is serving a sentence of life without

parole. In an October 2012 statement to police, Shepard said Dixon paid him three

silver bars to kill Sonnier.


          Shepard and Dixon testified at Dixon’s trial. Dixon testified he believed Shepard

killed Sonnier. His defense took the position Dixon was inculpated in the murder only

by Shepard’s October 2012 statement. The defense called Shepard a “con man.” In

his testimony, Shepard denied Dixon asked him to kill or harm Sonnier. He said Dixon

gave him the bars of silver because of his financial difficulties. At times he referred to

the bars as “a loan.” Dixon testified the three silver bars were his investment in a health

care business that Shepard, Dixon and a third man were forming.


          Evidence showed Shepard made several trips to Lubbock before the murder.

Dixon testified the two men planned for Shepard to photograph Sonnier in the company

                                                2
of women other than Shetina.1 They eventually planned that Shepard would attempt to

attach a camera to the fence at Sonnier’s residence. Dixon acknowledged he was

bothered by Shetina’s high opinion of Sonnier and her belief she was in a “committed

relationship” with Sonnier. He maintained, however, that his plans with Shepard never

included doing harm to Sonnier.


       The jury was instructed on the charged offense of capital murder and on lesser

offenses, but was unable to reach a unanimous verdict.


       At the habeas hearing, Dixon called two witnesses, his mother and a

representative of a Lubbock bail bond company.


       The bondsman testified in his opinion a bond for bail of $10 million could

“probably” not be obtained in Lubbock County. He added, however, if his company

made a bond for this amount it would require $1 million “upfront” and collateral

“back[ing] the biggest part of the 10 million.” Based on conversations with Dixon’s

family, the bondsman believed Dixon’s family could not obtain a bond for bail of $10

million. According to the bondsman, his company might consider a bond of $100,000

without collateral.


       Later in the habeas hearing, Dixon’s counsel informed the court that another

Lubbock bail bond company would make Dixon’s bond in consideration for a cash

payment of $1 million and collateral worth $3 million.



       1
         Dixon testified that at the end of February or early in March 2012 he first
became aware Sonnier was “seeing a lot of . . . women” other than Shetina, and he and
Shepard at that time first discussed taking pictures to prove Sonnier’s conduct to
Shetina.

                                            3
       Dixon’s mother, Mary Frances Archer Dixon, testified she resides in Spearman,

Texas, where the family has long-standing ties.         She acknowledged Dixon was a

successful plastic surgeon prior to his arrest. His three children live in Amarillo. She

also agreed he owned a business known as Sensei Med Spa but denied he received

income from the business or his medical practice after his incarceration. She believed

Sensei Med Spa was “breaking even” although at times was unable to meet its

obligations. According to Dixon’s trial testimony, Sensei Med Spa was “one of” his

businesses. He described it as a day spa offering massages, manicures, pedicures and

facials, and said he occasionally performed injections of fillers or Botox.


       Dixon has no prior criminal convictions and has apparently never been released

on bond. Trial testimony indicated that shortly before Sonnier’s murder, Dixon traveled

to Bermuda and sailed with a friend back to New York. After his initial questioning by

police regarding the murder, Dixon flew to Dallas to pick up a car but immediately

returned to Amarillo.


       Dixon’s mother also testified to his family’s participation in his expenses. The

family apparently pays Dixon’s monthly $1,800 child support and $3,000 contractual

alimony obligations. Mrs. Dixon agreed she and her family could not pay $1 million

cash and provide collateral valued at $3 million. She acknowledged trial expenses were

$1.25 million “or more,” and agreed this obligation “put a severe financial bind on your

ability to continue to pay attorneys’ fees, and other things, expert fees” for Dixon. She

agreed her family could afford a $100,000 bond and Dixon “personally” lacked the

assets to pay the bond. As for property, she agreed Dixon’s home, worth approximately

$495,000, was encumbered by a lien securing a loan of about that amount.

                                             4
       On cross-examination, Mrs. Dixon acknowledged Dixon has an unspecified

mineral interest paying “less than $150.00 a month.” He is a defendant in a civil lawsuit

brought by the Sonnier family but, she testified, none of his assets were placed in trust.


       Dixon did not testify at the habeas hearing but his counsel made a statement to

the court regarding assets. According to counsel, trusts created by Dixon when he

began practicing medicine “have been depleted.” Dixon’s Sensei Med Spa business

occupies leased premises. A Dodge truck and Porsche automobile were sold after

Dixon’s arrest. He apparently still owns a 1994 Jeep driven by his son and valued at no

more than $2,000. Dixon’s residence contains furniture, $1,800 cash, and “silver coins.”


       Dixon offered exhibits admitted during the hearing, which included: documentary

proof that in two Lubbock County capital murder cases, one from 2005 and the other

from 2012, the 140th District Court set bail at $1 million; a disc containing the testimony

from Dixon’s trial; and the affidavits of two jurors from Dixon’s trial indicating they and

other jurors were unwilling to find Dixon guilty of capital murder, murder, or

manslaughter. Dixon’s passport was also surrendered to the court.


                                         Analysis


       Through one issue, Dixon asserts the trial court abused its discretion by refusing

to reduce his $10 million bail.


       “‘Bail’ is the security given by the accused that he will appear and answer before

the proper court the accusation brought against him, and includes a bail bond or a

personal bond.” TEX. CODE CRIM. PROC. ANN. art. 17.01 (West 2005). “A ‘bail bond’ is a

written undertaking entered into by the defendant and the defendant’s sureties for the

                                             5
appearance of the principal therein before a court or magistrate to answer a criminal

accusation . . . .” TEX. CODE CRIM. PROC. ANN. art. 17.02 (West Supp. 2014). The chief

purpose of bail is securing the presence of the accused at trial on the offense charged.

See Ex parte Rodriguez, 595 S.W.2d 549, 550 (Tex. Crim. App. [Panel Op.] 1980).


       Setting the amount of bail for an accused is a decision committed to the

discretion of the magistrate or court. See U.S. CONST. amend. VIII; TEX. CONST. art. I, §

13; TEX. CODE CRIM. PROC. ANN. art. 17.15 (West 2005).           A trial court abuses its

discretion if it acts without reference to any guiding rules or principles; that is, in an

arbitrary or unreasonable manner. Ex parte Hunt, 138 S.W.3d 503, 505 (Tex. App.—

Fort Worth 2004, pet. refused). A reviewing court will not disturb a ruling of the trial

court if it is within the zone of reasonable disagreement. Clemons v. State, 220 S.W.3d

176, 178 (Tex. App.—Eastland 2007, no pet.) (per curiam). But an abuse of discretion

review is more than merely concluding the trial court did not rule arbitrarily or

capriciously.   Ex parte Beard, 92 S.W.3d 566, 573 (Tex. App.—Austin 2002, pet.

refused) (citing Montgomery v. State, 810 S.W.2d 372, 392 (Tex. Crim. App. 1990) (op.

on reh’g)). Rather the analysis requires the reviewing court to measure the trial court’s

ruling against the relevant criteria on which the ruling was made. Id.


       In a habeas case, the applicant bears the burdens of proving facts that would

entitle him to relief and ensuring that a sufficient record is presented to show error

requiring reversal.   Ex parte Kimes, 872 S.W.2d 700, 703 (Tex. Crim. App. 1993).

Therefore, the burden of proof is on an applicant claiming excessive bail. Ex parte

Rubac, 611 S.W.2d 848, 849 (Tex. Crim. App. [Panel Op.] 1981); Milner v. State, 263

S.W.3d 146, 148 (Tex. App.—Houston [1st Dist.] 2006, no pet.). A reviewing court will

                                            6
not reduce the trial court’s bail determination unless the applicant discharges his

burden. Ex parte Gentry, 615 S.W.2d 228, 231 (Tex. Crim. App. 1981) (reducing bail

amount after reviewing court was “completely satisfied that petitioner discharged her

burden of showing her entitlement” to bail reduction); Ex parte Welch, 729 S.W.2d 306,

310 (Tex. App.—Dallas 1987, no pet.) (holding after considering “all of the evidence and

factors relevant to determining the amount of bond,” that “applicant has failed to satisfy

his burden of showing that the trial court abused its discretion in refusing to lower

applicant’s bond”).


       The bail determination requires a court to strike a balance between the

presumption of innocence enjoyed by the accused and the State’s interest in assuring

the accused appears for trial. Ex parte Beard, 92 S.W.3d at 573. Excessive bail is

prohibited by the federal and state constitutions. See U.S. CONST. amend. VIII; TEX.

CONST. art. I, § 13. Bail is excessive if it is “set in an amount greater than is reasonably

necessary to satisfy the government’s legitimate interests.” Ex parte Beard, 92 S.W.3d

at 573.


       Exercising its discretion on a request for bail reduction, the trial court considers

the following factors:


       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.



                                             7
       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 (West 2005).


       It is said the nature of the offense is a primary consideration in assessing bail.

See Ex parte Durst, 148 S.W.3d 496, 500 (Tex. App.—Houston [14th Dist.] 2004, pet.

refused) (majority op. on reh’g) (citing Ex parte Rubac, 611 S.W.2d at 849 (“The primary

factors are the length of the sentence and the nature of the offense”)); Aviles v. State,

26 S.W.3d 696, 698-99 (Tex. App.—Houston [14th Dist.] 2000, pet. refused) (“Two

factors should be given great weight when determining the amount of bail: the nature of

the offense and the length of the sentence”); Ex parte Hulin, 31 S.W.3d 754, 759 (Tex.

App.—Houston [1st Dist.] 2000, no pet.) (“The primary factors to be considered in

determining what constitutes reasonable bail are the punishment that can be imposed

and the nature of the offense”); see Ex parte Vazquez, 558 S.W.2d 477, 480 (Tex. Crim.

App. 1977) (noting possible punishment is a consideration). Capital murder is

punishable by life in prison without parole or death. TEX. PENAL CODE ANN. § 12.31(a)

(West Supp. 2014).


       As for the ability to make bail, courts have required an accused to show an

unsuccessful attempt to make bail before the amount of bail set can be found

excessive. Such a showing is not required, however, when the defendant shows that

his funds and those of his family have been exhausted. Milner, 263 S.W.3d at 149. But

the accused’s ability to make bail is not controlling; otherwise, “the role of the trial court


                                              8
in setting bond would be completely eliminated and the accused would be in the

position to determine what his bond should be.” Milner, 263 S.W.3d at 150. “Bail set in

an amount that no bondsman could make is not, for that reason alone, excessive.” 41

George E. Dix & John M. Schmolesky, TEXAS PRACTICE: CRIMINAL PRACTICE                  AND

PROCEDURE § 21:27 (3d ed. 2011) (citing Wright v. State, 976 S.W.2d 815 (Tex. App.—

Houston [1st Dist.] 1998, no pet.)).


       In order to set bail sufficiently high that the accused will comply with his

undertaking, a magistrate gives consideration to matters other than those listed in article

17.15. Dix & Schmolesky at § 21:30. This includes the accused’s personal situation.

Id.   Thus courts look to several common law factors including the accused’s work

record, family and community ties, length of residency, and aggravating circumstances

alleged to have been involved in the charged offense. See Ex parte Rubac, 611 S.W.2d

at 849-50 (listing these along with other factors not applicable here).


       The procedural history of this case distinguishes it from most reported cases

involving bond reduction appeals. The trial judge who conducted the habeas hearing

also presided over Dixon’s capital murder trial, and the record of testimony from the trial

was presented at the habeas hearing. In particular, this procedural history distinguishes

this case from one cited by Dixon, Ex parte Evans, which also addressed a bond

reduction request after a mistrial caused by a deadlocked jury. Ex parte Evans, No. 06-

11-000480-CR, 2011 Tex. App. LEXIS 5052 (Tex. App.—Texarkana July 6, 2011, no

pet.) (mem. op., not designated for publication). In Evans, a visiting judge presided over

the mistrial, and the trial evidence presented at the bond reduction hearing was limited.

Id., at *7-8. By contrast, in ruling on Dixon’s bail-reduction request, the trial judge had

                                             9
before him the capital murder trial evidence as well as the testimony and other evidence

presented live at the habeas hearing.2 And, in his role as factfinder at the habeas

hearing, the trial judge necessarily made weight and credibility determinations. Ex parte

Gandara, No. 08-10-00234-CR, 2011 Tex. App. LEXIS 9395, at *6 (Tex. App.—El Paso

Nov. 30, 2011, no pet.) (mem. op., not designated for publication) (“In a habeas

proceeding, the trial court is the sole judge of the credibility of the witnesses and the

weight to be given their testimony, and the court may accept some, all, or none of a

witness’s testimony”). Those determinations may properly have had a bearing on the

court’s evaluation of the statutory and common law factors for setting bail, including

those factors related to the charged offense and the circumstances under which it

occurred.3


      Dixon engaged in the practice of medicine in Amarillo from 2003 until his arrest.

At the time of his trial, he was 50 years old. The current status of his medical license

was not shown. As noted, he owns a mineral interest. Other than its leased premises,

the assets of his spa business are not shown, nor any assets related to his medical

practice. Dixon has no demonstrated ties to Lubbock County. He has “friends and

family” in the Spearman area. Dixon’s three children, ages twenty-six, nineteen and


      2
           See Ex parte Green, No. 02-13-00474-CR 2014, Tex. App. LEXIS 1688, at *1
n.2 (Tex. App.—Fort Worth Feb. 13, 2014, no pet.) (mem. op., not designated for
publication) (similar procedural history; in oral pronouncement denying reduction of bail,
trial court “stated that it had considered ‘all of the evidence previously [introduced at
trial]’ in making its determination”).
      3
         In that regard, the State emphasizes the “amount of time [Dixon] and Shepard
spent plotting the murder.” But of course Dixon has not been convicted of Sonnier’s
murder. Under the evidence at trial, however, it was not disputed the men devoted a
significant effort to planning and pursuing their actions directed at Sonnier, whatever
their nature.

                                           10
fifteen, live in Amarillo. His eldest child is married. The nature of Dixon’s relationship

with his children was not clearly portrayed. These factors related to Dixon’s personal

situation and ties are essentially undisputed, but, considered individually or together, the

trial court could have found them unconvincing as showing “an incentive to remain

despite the possibility of conviction and sentence.” Dix & Schmolesky at § 21:30.


       In this court Dixon places heavy emphasis on Shepard’s testimony explaining

that he implicated Dixon only to obtain a favorable plea bargain and avoid a possible

death penalty case against him. And Dixon emphasizes the two affidavits from jurors

stating that as many as six jurors believed he was guilty of nothing but criminal

trespass. Here, again, however, determinations of the weight to be given particular

testimony and of its bearing on the factors for setting bail were determinations to be

made by the trial court.       The court was not required to assign to Shepard’s trial

testimony or the hearsay statements by two jurors the weight Dixon attributes to those

items of evidence.


       Dixon’s evidence presented at the habeas hearing to support his contention he is

unable to make bond on the assessed amount of bail was meager. One Lubbock bond

company might write a bond, others would not. Further, Dixon’s evidence cannot be

seen as a serious effort to present his, or his family’s, financial condition. His mother

testified briefly, and largely in generalities. We agree with the State’s assessment that

the record does not indicate the extent of Dixon’s or his family’s “actual remaining

resources.” In short, Dixon may lack the financial wherewithal to post bond on the

assessed $10 million bail, but the hearing record simply does not provide a dependable

basis for such a conclusion.

                                            11
       From our research, Dixon’s bail assessment is among the highest reported in

Texas. See Ex parte Durst, 148 S.W.3d at 501 (reducing bail from $1 billion per case in

three third-degree felony cases to $150,000 per case); Beard, 92 S.W.3d at 567, 573-74

(ordering bail of $8 million reduced to $500,000). But, as courts have often recognized,

the reported cases are not an effective gauge for our review of the trial court’s

determination.


       Case law is of relatively little value in addressing the ultimate question of
       the appropriate amount of bail in a particular case because appellate
       decisions on bail matters are often brief and avoid extended discussions,
       and because the cases are so individualized that generalization from
       results reached in others is difficult.


Beard, 92 S.W.3d at 571 (citing 41 George E. Dix & Robert O. Dawson, TEXAS

PRACTICE: CRIMINAL PRACTICE    AND   PROCEDURE § 16.51 (2d ed. 2001) (quotation marks

omitted)).


                                        Conclusion


       Given the grave nature of the offense with which he is charged and the potential

sentence on conviction, Ex parte Rubac, 611 S.W.2d at 849, on the record we are

presented, we cannot say the habeas judge abused his discretion by finding Dixon

failed to carry his burden to show his entitlement to a bail reduction. We affirm the

court’s order denying Dixon’s requested bail reduction.




                                                        Per Curiam




Do not publish.

                                            12
