           IN THE COURT OF CRIMINAL APPEALS
                       OF TEXAS
                                     NO. PD-0398-15



                EX PARTE THOMAS MICHAEL DIXON, Appellant



        ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
               FROM THE SEVENTH COURT OF APPEALS
                         LUBBOCK COUNTY

      H ERVEY, J., delivered the opinion of the Court in which J OHNSON, K EASLER,
R ICHARDSON, and N EWELL, JJ., joined. K ELLER, P.J., and A LCALA, J., concurred.
Y EARY, J. dissented. M EYERS, J., did not participate.

                                      OPINION

       This appeal is from an order entered in a habeas corpus proceeding refusing to

reduce bail. Because we hold that the habeas court abused its discretion when it refused to

reduce Appellant’s bail, and the court of appeals erred in affirming the ruling of the

habeas court, we vacate the judgment of the court of appeals, set aside the order of the

habeas court denying relief, and order Appellant’s bail reduced to $2 million.

                                             I.

       Appellant was arrested on July 16, 2012, on suspicion of capital murder. His bail
                                                                                              Dixon–2

was set at $10 million. He was subsequently indicted on two counts of capital murder.

The first count alleged that he committed capital murder when he paid a third party to

murder the victim.1 The second count alleged that Appellant was guilty of capital murder

as a party to the offense.2

       Appellant’s trial began on October 27, 2014, two years, three months, and eleven

days after he was arrested. Three weeks after his trial started, the judge granted a mistrial

because the jury was unable to reach a unanimous verdict. Appellant subsequently filed a

pretrial application for a writ of habeas corpus seeking to reduce his bail. The habeas

court denied relief, and Appellant appealed that adverse ruling to the Amarillo Court of

Appeals, which affirmed the order of the habeas court. We granted Appellant’s petition

for review arguing that the court of appeals erred.3

                                                II.


       1
        “A person commits [capital murder] if the person commits murder as defined under
Section 19.02(b)(1) and: . . . the person commits the murder for remuneration or the promise of
remuneration or employs another to commit the murder for remuneration or the promise of
remuneration[.]” TEX . PENAL CODE § 19.03(a)(3).
       2
        Under the law of parties and relevant to this case, a person may be held responsible for
the criminal actions of another if he “act[ed] with intent to promote or assist the commission of
the offense, [or] he solicits, encourages, directs, aids, or attempts to aid the other person to
commit the offense[.]” TEX . PENAL CODE §§ 7.01(a); 7.02(a)(2).
       3
           The ground for review states,

       The court of appeals has departed from the accepted and usual course of judicial
       proceedings and has sanctioned such a departure by the trial court by approving
       bail in a capital case in an amount an order of magnitude larger than any
       previously approved in a capital murder case in this state, resulting in the instant
       bail being used as an instant instrument of oppression.
                                                                                           Dixon–3

       The Texas Constitution guarantees that “[a]ll prisoners shall be bailable by

sufficient sureties, unless for capital offenses, when the proof is evident . . . .” 4 T EX.

C ONST. art. I, § 11; see T EX. C ODE C RIM. P ROC. art. 1.07 (same). It also permits the denial

of bail in certain noncapital cases. T EX. C ONST. art. I, § 11a. However, because neither

Section 11 nor Section 11a were invoked in this case, Appellant is entitled to bail that is

not excessive. See id. art. I, § 13 (excessive bail shall not be required); T EX. C ODE C RIM.

P ROC. art. 1.09 (same).

       The constitutional right to bail is implemented by Article 17.15 of the Texas Code

of Criminal Procedure. T EX. C ODE C RIM. P ROC. art. 17.15. That Article provides that the

setting of bail is within the discretion of the court, judge, or magistrate setting it, but it

also specifies that that discretion is limited by the Texas Constitution and the five factors

delineated in Article 17.15:

       (1) The bail shall be sufficiently high to give reasonable assurance that the
       undertaking will be complied with,

       (2) The power to require bail is not to be so used as to make it an instrument
       of oppression,

       (3) The nature of the offense and the circumstances under which it was
       committed are to be considered,



       4
         Under Article I, Section 10, we have interpreted “proof is evident” of a capital offense to
mean evidence that “is clear and strong, leading a well-guarded and dispassionate judgment to
the conclusion that the offense of capital murder has been committed; that the accused is the
guilty party; and that the accused will not only be convicted but that the jury will return findings
which will require a sentence of death.” Ex parte Alexander, 608 S.W.2d 928, 930 (Tex. Crim.
App. [Panel Op.] 1980).
                                                                                       Dixon–4

       (4) The ability to make bail is to be regarded, and proof may be taken upon
       this point, and

       (5) The future safety of a victim of the alleged offense and the community
       shall be considered.

Id.

       The primary purpose of an appearance bond is to secure the presence of the

defendant in court to answer the accusation against him. Thus, while bail should be

sufficiently high to give reasonable assurance that the undertaking will be complied with,

the power to require bail is not to be used so as to make it an instrument of oppression.

See id. art. 17.15(1)–(2).

                                             III.

       The parties’ main arguments turn on how an appellate court should review a bail-

reduction decision for an abuse of discretion. Appellant asserts that the court of appeals

abdicated its role to independently measure the habeas court’s refusal to grant relief

against the relevant bail criteria. The State contends that the court of appeals correctly

applied the abuse-of-discretion standard.

                                              IV.

       After examining the opinion of the court of appeals, we agree with Appellant that

it failed to measure the ruling of the habeas court against the relevant bail criteria. For

example, the court stated that “the weight to be given [to] particular testimony and of its

bearing on the factors for setting bail were determinations to be made by the trial court.”
                                                                                        Dixon–5

Ex parte Dixon, No. 07-14-00433-CR, 2015 WL 1040927, at *5 (Tex. Crim. App. Mar. 6,

2015) (per curiam) (not designated for publication) (emphasis added). It also noted that

the credibility and weight determinations made by the habeas judge “may properly have

had a bearing on the court’s evaluation of the statutory and common law factors for

setting bail . . . .” Id. (emphasis added). If this were the extent of an appellate court’s

review for an abuse of discretion, rulings of habeas courts would be almost completely

insulated from review and bail-reduction appeals would be meaningless. Habeas courts

determine the bearing of the evidence on the relevant bail criteria only in the first

instance. On appellate review, it is the duty of the reviewing court to measure the ultimate

ruling of the habeas court against the relevant bail factors to ensure that the court did not

abuse its discretion. See T EX. C ODE C RIM. P ROC. art. 17.15 (statutory factors for setting

bail); see also T EX. C ONST. art. I, § 11–11a, 13 (proof must be evident to deny bail or not

be excessive).

       It appears the court of appeals fell into error when it accorded special deference to

the ruling of the habeas court because that judge was also the trial judge who presided of

Appellant’s trial and, therefore, had already seen the evidence. Dixon, 2015 WL at *5.

Using this fact, the court distinguished Appellant’s case from another with similar facts

but in which a different result was reached. See Ex parte Evans, No. 06-11-00048-CR,

2011 WL 2623589 (Tex. App.—Texarkana July 6, 2011, no pet.) (mem. op.) (not

designated for publication). The court reasoned that, unlike in Evans, in which there was
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also a mistrial caused by a deadlocked jury, in this case the “trial judge had before him the

capital murder trial evidence as well as the testimony and other evidence presented live at

the habeas hearing.” Dixon, 2015 WL at *5. To the extent that the court of appeals

abdicated its role to assess the habeas court’s ruling for an abuse of discretion because the

trial judge and habeas judge were one in the same, we cannot agree. Although the

evidence adduced at a mistrial can shed light on relevant bail-determination issues such as

the nature of the offense, the circumstances under which it was committed, and the

strength of the State’s case, that fact should not entitle the decision of a habeas court to

more deference than normal for this type of review. That is, the fact that the habeas judge

and trial court judge are the same person does not necessarily lead to the conclusion that

the court did not abuse its discretion.

       On the facts of this case, and after considering the other relevant bail factors and

measuring them against the relevant bail criteria, we hold that the habeas court abused its

discretion when it denied Appellant relief. Similarly, we hold that the court of appeals

erred when it affirmed the habeas court’s ruling denying Appellant relief. We vacate the

judgment of the court of appeals, set aside the order of the habeas court denying relief,

and order Appellant’s bail reduced to $2 million.

                                                          Hervey, J.

Delivered: September 16, 2015

Do not publish
