# No. 07 - 14 - 00433 - CR

__________________________________________ In the Court of Appeals for the Seventh Judicial District Amarillo, Texas

_______________________________________ 

## E X 

## P ARTE 

## T HOMAS 

## M ICHAEL 

## D IXON 

## , Appellant

.

___________________________________ ____ On Appeal from the 140th District Court Lubbock County, Texas The Honorable Jim Bob Darnell Presiding

________________________________ ____________________________ 

## A PPELLANT 

## ’ S 

## B RIEF

_________________________________ ___________________________
Frank Sellers Daniel W. Hurley H URLEY , G UINN & S ELLERS 1805 13th Street Lubbock, Texas 79401 P: 806.771.0700 F: 806.763.8199 Selden Hale A TTORNEY AT L AW 310 Southwest 6 th Avenue Amarillo, Texas 79101 P: 806.372.5711 F: 806.372.1646

A TTORNEYS FOR A PPELLANT O RAL A RGUMENT N OT R EQUESTED ACCEPTED 07-14-00433-CR SEVENTH COURT OF APPEALS

AMARILLO, TEXAS 1/13/2015 2:50:32 PM Vivian Long, Clerkii L IST OF P ARTIES & C OUNSEL Defendant/Appellant Trial and Appellate Counsel
Thomas Michael Dixon Frank Sellers Daniel W. Hurley H URLEY , G UINN & S ELLERS 1805 13th Street Lubbock, Texas 79401 P: (806) 771

- 0700 F: (806) 763

- 819 9 E: frank@hurleyguinn.com The State of Texas Appellate Counsel Jeff Ford Lauren Murphree Wade Jackson L UBBOCK C OUNTY D ISTRICT A TTORNEY ’ S O FFICE P.O. Box 10536 Lubbock, Texas 79408

- 3536 Trial Counsel
Matt Powell Sunshine Stanek Wade Jackson Lauren Murphree L UBBOCK C O UNTY D ISTRICT A TTORNEY ’ S O FFICE P.O. Box 10536 Lubbock, Texas 79408

- 3536iii T ABLE OF C ONTENTS L IST OF P ARTIES & C OUNSEL

................................ ................................ ........... II T ABLE OF C ONTENTS

................................ ................................ ...................... III I NDEX OF A UTHORITIES

................................ ................................ ................... V S TATEMENT OF THE C ASE

................................ ................................ ............... 1 S TATEMENT R EGARDING O RAL A RGUMENT

................................ ...................... 2 I SSUE P RESENTED

................................ ................................ .......................... 2 S TATEMENT OF F ACTS

................................ ................................ .................... 2 S UMMARY OF THE A RGUMENT

................................ ................................ ......... 7 S TANDARD OF R EVIEW

................................ ................................ .................... 7 A RGUMENT

................................ ................................ ................................ .... 8 1. Because this appeal deals with a denial of a writ of habeas corpus, this Court has jurisdiction.

................................ ...................... 8 2. The law prohibits excessive, oppressive bail.

................................ ..... 9 3. Nearly all of the relevant factors weigh in Dixon’s favor; this Court should reduce bail to $100,000.

................................ ........................ 10 A. Su fficient to Assure Appearance

................................ ................. 10 B. Not to be Used as an Instrument of Oppression

......................... 15 C. Nature of the offense

................................ ................................ ... 16 D. Ability to Make Bail

................................ ................................ ...... 19 E. Future Safety of the Victim and the Community

.......................... 21 F. Remaining Factors

................................ ................................ ....... 21 G. Willing to Comply with Conditions

................................ ............... 23iv P RAYER FOR R ELIEF

................................ ................................ ..................... 24 C ERTIFICATE OF S ERVICE

................................ ................................ .............. 26 C ERTIFICATE OF C OMPLIANCE

................................ ................................ ....... 26v I NDEX OF A UTHORITIES CASES Badall v. State, No. 09

- 04

- 211 CR 2004 WL 1699911 (Tex. App.

— Beaumont July 28, 2004, pet. ref’d) (not designated for publication)

.......................... 12 Ex parte Beard, 92 S.W.3d 566 (Tex. App.

— Austin 2002, pet. ref'd)

.... 9, 12, 19 Ex Parte Brooks , 376 S.W.3d 222 (Tex. App.

— Fort Worth 2012, pet. ref'd)

.. 15 Ex Parte Davis, 147 S.W.3d 546 (Tex. App.

— Waco 2004, no pet.)

................. 12 Ex Parte Evans , No. 06

- 11

- 00048

- CR, 2011 WL 2623589 (Tex. App.

— Texarkana July 6, 2011, no pet.) (mem. op., not designated for publication)

................................ ................................ ................................ . 11, 12 Ex parte Goosby , 685 S.W.2d 440, 442 (Tex. App.

— Houston [1st Dist.] 1985, no writ),

................................ ................................ ................................ ............. 13 Ex p arte Herrera , No. 05

- 14

- 00598

- CR, 2014 WL 4207153 (Tex. App.

— Dallas Aug. 26, 2014, no pet.) (mem. op., not designated for publication)

........... 8 Ex parte McDonald , 852 S.W.2d 730 (Tex. App.

— San Antonio 1993, no writ).

................................ ................................ ................................ ...................... 12, 19 Ex parte Milburn , 8 S.W.3d 422 (Tex. Ap p. — Amarillo 1999, no pet.)

.... 10, 13, 14, 21 Ex Parte Miller, 631 S.W.2d 825 (Tex. App.

— Fort Worth 1982, pet. ref’d).

.. 19 Ex parte Rubac , 611 S.W.2d 848 (Tex. Crim. App. 1981)

............................ 10, 22 In re Durst , 148 S.W.3d 496 (Tex. App.

— Houston [14th Dist.] 2004, no pet.)

................................ ................................ ................................ ................ 15 , 16, 23 In re Estrada , 398 S.W.3d 723 (Tex. App.

— San Antonio 2008, pet. ref’d)

..... 13vi In re Estrada, 398 S.W.3d 723, (Tex. App.

— San Antonio 2008, pet. ref’d).

... 20 In re Henson, 131 S.W.3d 645 (Tex. App

— Texarkana 2004, no pet.)

............. 12 Ludwig v. State , 812 S.W.2d 32 (Tex. Crim. App. 1991)

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

................................ 21 Nguyen v. State, 881 S.W.2d 141 (Tex. App.

— Houston [1st Dist.] 1994, no pet.)

................................ ................................ ................................ .................... 23 Ragston v. State , 424 S.W.3d 49 (Tex. Crim. App. 2014)

................................ .... 8 Smithwick v. State , 880 S.W.2d 5 10 (Tex. App.

— San Antonio 1994, no pet.) 15 Vasquez v. State , 03

- 13

- 00717

- CR, 2014 WL 3732962 (Tex. App.

— Austin July 25, 2014, no pet.) (mem. op., not designated for publication)

..................... 8 STATUTES T EX
. C ODE C RIM
. P ROC
. A NN
. art. 17.15

................................ .............................. 10 RULES T EX
. R. A PP
. P. 9.5( d)

................................ ................................ ............................. 25 CONSTITUTIONAL PROVI SIONS T EX
. C ONST . art. I, § 11

................................ ................................ ......................... 21 T EX
. C ONST . art. I, § 13

................................ ................................ ........................... 9 U.S. C ONST
. amend. VIII

................................ ................................ ........................ 91 S TATEMENT OF THE C ASE Appellant Thomas Michael Dixon was arrested on July 16, 2012 , and
ch arged with capital murder. ( 3 RR 4 : DX 1 )

. 1 His bail was set at $10,000,000. ( Id. ). A Lubbock County Grand Jury subsequently indicted
Dixon for two counts of capital murder.
Dixon’s trial began on October 27, 2014 . (CR 8). After a three

- week j ury trial, the jury was unable to reach a verdict. ( Id. ). The trial court
declared a mistrial. ( Id. ).
Several weeks after the mistrial , Dixon filed a writ of habeas corpus seeking a bond reduction. ( Id. at 5 ). After a hearing on December 17, 2014,
the tri al court refus ed to reduce Dixon’s bail. ( Id. at 15 ). Dixon filed notice of appeal to this Court the same day. ( Id. at 9 ).

1 Citations to the record appear as follows: Writ Hearing

— Rep orter’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 t he writ hearing. The writ hearing exhibit volume lists this as a State’s Exhibit that was mailed to the Court. As the Court can tell from the numbering of the exhibits, this was a defense exhibit. If the Court has not received the DVD, Dixon requests this Court advise the parties in order for the Court to have the benefit of the entire record before deciding this case.2 S TATEMENT R EGARDING O RAL A RGUMENT In order to allow the Court to render a quick judgment, Dixon does not request oral argument.

I SS UE P RESENTED Courts are to conside r twelve factors when determining an appropriate bail amount. Numerous courts have approved $100,000 bail in capital murder cases. Here, only the factors dealing with general nature of the offense and potential punishment support higher bail. But even those
factor s , when carefully considered , support a monumental bail reduction because six jurors voted to acquit Dixon at his prior trial. Did the trial court

err by refusing to reduce Dixon’s bail from $10,000,000 to $100,000 ?
S TATEMENT OF F ACTS Thomas Michael Dixon, an Amarillo surgeon, was arrested o n July 16, 2012. (2 RR 33). Dixon was charged with two counts of capital murder. His bail was set at $10,000,000. (2 RR 15; 3 RR 4: DX 1). For eight months,
Dixon was in solitar y confinement. (13 TR 24). Dixon never sought a bond
reduction.3 Over two y ears later, the State tried Dixon. The State sought to prove
that Dixon hired co

- defendant David Shepard to kill Lubbock pathologist Joseph Sonnier, III or, alternatively, that Dix on was a party to a murder in the course of a burglary. After a three

- week jury trial, a Lubbock jury was unable to reach a unanimous verdict. (CR 8). Two jurors provided affidavits of their recollection of the final votes prior to the mistrial. (3 RR
15: DX 12; 3 RR 16: DX 13). Both jurors swore that nume rous jurors voted to acquit Dixon of every felony charge submitted to the jury. (3 RR 15: DX 12;
3 RR 16: DX 13

. ). The State offered no evidence to dispute these affidavits. Following the mistrial, Dixon filed this application for writ of habeas corpus seeking a bond reduction. At the hearing, Dixon offered a number of exhibits and called two witnesses: Ken Herzog and Mary Dixon. Herzog, manager of Lubbock Bail Bond, the oldest bonding company
in the Lu bbock area, testified that it would probably be impossible to post a $10,000,000 bond in Lubbock County. (2 RR 9). He doubted that any bonding company would be permitted by its insurance company to write a bond in that amount. ( Id

. ). Herzog testified his c ompany would require a4 cash fee of $1,000,000 up front, as well as “collateral

– or some kind of property to back the biggest part of the 10 million.” ( Id. at 10). Herzog had spoken to Dixon’s family and informed them that it would not be possible
for his bonding company to post the bond at its current amount. ( Id. at 11).
The Stat e did not question

. Mrs. Dixon, Dr. Dixon’s mother, testified about Dr. Dixon’s upbringing and her attempts to secure her son’s release on bond. Mrs.
Dixon was born and raised i n Spearman, and her family has been there since the 1800s. ( Id. at 18). Likewise, Dr. Dixon was raised in Spearman and still has family and friends there. ( Id. at 19). Dr. Dixon has three children, ages 15, 19, and 26, all of whom live in Amarillo. ( Id. at 19

– 20). From 2003 until the time of his arrest, Dr. Dixon practiced medicine, specifically plastic surgery, in Amarillo. ( Id. at 20). In addition, Dr. Dixon still owns Sensei Med Spa, a n Amarillo business that has struggled to break even
since his arrest. ( Id. at 28). 2 Mrs. Dixon also testified about the twelve Lubbock bonding companies she contacted in order to secure her son’s

2 Sensei does not own any real property. (2 RR 34).5 release. ( Id. at 23). Only one bonding company was willing to make the current bond, and that company would require a $1,000,000 cash down payment, as well as collateral worth $3,000,000 from Dr. Dixon. ( Id. ). Mrs. Dixon testified that because her family had already spent upwards of $1,250,000 on the first trial, the family could not afford to make either the down payment or provide the collateral. ( Id. at 23

– 24). 3 Mrs. Dixon also provided insight into her son’s current financial condition. Since his arrest over two years ago, Dr. Dixon has had no income. ( Id. at 21). Yet, with the help of his family, he has continued to
meet his c hild support obligations of $1,800 per month, ( Id. at 25), as well as
pay contractual alimony of $3,000 per month. ( Id. ). Dr. Dixon’s only seemingly significant asset is his home in Amarillo, but the home’s value is roughly equal to its mortgage debt

— per haps less. ( Id. at 26

– 27). He also has an interest in an oil and gas lease that pays less than $150 per month ( Id. at 30), as well as a 1994 Jeep valued at $1,500

– $2,000. ( Id. at 34). Finally,

3 This is especially true in light of the fact that the State has indicated it may see k the death penalty at the retrial, which would exponentially increase the Dixons’ financial obligations. (2 RR 25).6 Dr. Dixon had , in his residence at the time of his arrest, $1, 800 in currency and a collection of coins with an unknown value. ( Id. at 30 ). In light of the astronomical expense the Dixon family has already
incurred and will continue to incur going forward, Mrs. Dixon requested that the Court set her son’s bond at $ 100,000. ( Id. at 26). Mrs. Dixon also told the Court that her son was willing to wear a
GPS

- tracking ankle monitor. ( Id. at 28). Dr. Dixon also surrendered his passport to the court. ( Id. at 17 ). Dr. Dixon offered a number of exhibits in addition to the juror affidavits mentioned above. He offered ten Lubbock County capital murder indictments showing the bond amounts for each case. The admitted exhibits showed that the highest bonds in those cases were $1,000,000. 4 (3 RR 6: DX 3; 3 RR 14 : DX 11). Dr. Dixo n also offered a DVD containing all of the witness testimon y from his prior trial. (3 RR 17 : DX 14).

4 Despite the fact that the Rules of Evidence do not apply in habeas corpus bond reduction hearings, T EX
. R. E VID
. 101(d)(1)(E), the trial court refused to admit the indictments from other Lubbock County district courts.7 The State did not call any witnesses or offer any exhibits. The trial court denied Dixon’s request. (CR 15).
S UMMARY OF THE A RGUMENT The trial court er red in refusing to reduce Dixon’s bail. The Court of Criminal Appeals, this Court, and other Courts of Appeals have held $100,000 as reasonable bail in a capital murder case. The State has already tried and failed to prove Dixon guilty of capital murder. D ixon has strong ties to the community, including three children, a business, and a medical practice in Amarillo, Texas. Dixon’s behavior evidences his desire to clear
his name. Because the St ate presented no evidence to contest any of these
or the other fa ctors courts must consider when setting bail , this Court must
reduce bail.
S TANDARD OF R EVIEW This Court reviews a trial court’s bail

- amount decision for abuse of
discretion. Ex parte Milburn , 8 S.W.3d 422, 424 (Tex. App.

— Amarillo 1999, no pet.)

.8 A RGUMEN T 1. Because this appeal deals with a denial of a writ of habeas corpus, this Court has jurisdiction. While the Court of Criminal Appeals does not allow appeals from pretrial orders denying motions for bond reductions, Ragston v. State , 424 S.W.3d 49, 50 (T ex. Crim. App. 2014) , this prohibition does not apply to writs of habeas corpus seeking the same relief. Ex parte Herrera , No. 05

- 14

- 00598

- CR, 2014 WL 4207153, at *3 (Tex. App.

— Dallas Aug. 26, 2014, no pet.) (mem. op., not designated for publication) (“The clerk's record shows appellant is appealing from the denial of his wri t application. Both appellant and the State agree the Court has jurisdiction to consider this appeal . . . . Because jurisdiction is evident, we need not further address appellant's first issue.”); Vasquez v. State , 03

- 13

- 00717

- CR, 2014 WL 3732962, at *1 ( Tex. App.

— Austin July 25, 2014, no pet.) (mem. op., not designated for publication) (“When interpreting the holding in Ragston, various courts of appeals have concluded that although appellate courts do not have ju risdiction over interlocutory appeals of motions for bond reductions, they do have jurisdiction over denials of applications for writs of habeas corpus asserting that the amount of bail set was excessive.”). Therefore, this Court9 has jurisdiction to decide whether the trial court abused its discretion in denying Dixon’s writ application.
2. The law prohibits excessive, oppressive bail. Both our federal and state constitutions forbid excessive bail. U.S.
C ONST
. amend. VIII (“Excessive bail shall not be required . . . .”); T EX
. C ONST . art. I, § 13 (same). In setting bail, the trial court must balance the accused’s presumpti on of innocence and the State's interest in assuring the accused’s appearance at trial. Ex parte Beard, 92 S.W.3d 566, 573 (Tex. App.

— Austin 2002, pet. ref'd). Bail is excessive if it is “set in an amount greater than is reasonably necessary to satisfy the government's legitimate
interests.” Id. In addition to the constitutional prohibition against excessive bail, the Texas Legislature has given the following statutory guidelines:
1. The bail shall be sufficiently high to give reasonable assurance that the undertaking wi ll 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.10 4. The ability to make bail is to be regarded, an d proof may be taken upon this point. 5. The future safety of a victim of the alleged offense and the community shall be considered. T EX
. C ODE C RIM
. P ROC
. A NN
. art. 17.15 . Texas law further permits consideration of the following factors: the possible length of sentence for the indicted offense; the nature and any aggravating factors of the offense; the accused's employment record; the accu sed’s family and community ties; the accused’s length of residency in the jurisdiction; the accused’s conformity with previous bond conditions; and the accused’s prior
criminal record. Ex parte Milburn , 8 S.W.3d 422, 425 (Tex. App.

— Amarillo 1999, no pet.) (citing Ex parte Rubac , 611 S.W.2d 848, 849

– 850 (Tex. Crim. App. 1981) ) (citation omitted).
3. Nearly all of the relevant factors weigh in Dixon’s favor; this Court should reduce bail to $100,000. A. Sufficient to Assure Appearance This is not t he typical capital murder bond reduction appeal. The State has had a chance to prove Dixon guilty beyond a reasonable doubt. Instead, up to six jurors believed he was not guilty.11 Dixon has been able to find only one case dealing with a bond
reduction fol lowing a mistrial based on jury deadlock. Ex p arte Evans , No.
06

- 11

- 00048

- CR, 2011 WL 2623589, at *3 (Tex. App.

— Texarkana July 6, 2011, no pet.) (mem. op., not designated for publication). Evans , an unpubl ished opinion carrying no precedential value, is distinguishable in
at least three ways. First, the defendant was charged with murder after a
drive

- by shooting. The Court found this significant

— likely because drive

by shootings by themselves are a danger to the community. Here, Dixon was not present during the killing of a lone victim. More importantly, the
actual k iller and State’s star witness

— who is serving a life sentence without parole

— testified that Dixon did not pay for or plan the murder: [ D EF ENSE C OUNSEL ]: Now, almost immediately you told me that Mike Dixon did not pay you to kill Dr. Sonnier; isn't that true? [D AVID S HEPARD ]: That's correct, sir. Q. And you also told me that he was not involved in any way in any planning of the killing of Dr. Sonnier; isn't that true? A. Killing or hurting anybody, yes, sir. Q. In fact, he did not even want him to be harmed in any way; isn't that true? A. That's correct, sir.12 ( E.g. , 10 TR 8). Second, Evans had recent, prior criminal history. Dixon has
none. F inally, the bail in Evans was set at $370,000

— over twenty times less
than the bail here. Evans, No. 06

- 11

- 00048

- CR, 2011 WL 2623589, at *1. Because there are no cases like this, the Court must look to what has been held reasonable in other capital murder cases.
Other courts have held bail of less than $100,000 in capital murder

cases to be reasonab le. See Ludwig v. State , 812 S.W.2d 323, 325 (Tex. Crim. App. 1991) (two counts murder, capital murder for murdering both victims during same criminal transaction, bail reduced from $2,000,000 to $1,000,000 by Court of Appeals and then to $50,000 by Court of Criminal Appeals ); Ex p arte McDonald, 852 S.W.2d 730, 736 (Tex. App.

— San Antonio 1993, no pet.) (bail r edu ced from $1,000,000 to $75,000). 5 Similarly, this

5 See also Ex Parte Davis, 147 S.W.3d 546, 553 (Tex. App.

— Waco 2004, no pet.) (capital murder for hiring and aiding assailants after the drug

- related murder, bail reduced for both defendants from $1,000,000 to $500,000 and $750,000, respectively); Ex Parte Beard , 92 S.W.3d 566, 574 (Tex. App.

— Austin 2002, pet. ref’d) (capital murder, injury to elderly person, bail reduced from $8,000,000 to $500,000); Badall v. State, No. 09

- 04

- 211 CR 2004 WL 1699 911, at *4 (Tex. App.

— Beaumont July 28, 2004, pet. ref’d) (not designated for publication) (bail reduced from $1,000,000 to $400,000); In re Henson, 131 S.W.3d 645, 651 (Tex. App

— Texarkana 2004, no pet.) (three counts of capital murder, bail reduced from $750,000 to $500,000 for each count); In re Estrada , 398 S.W.3d 723, 72 7

– 728 (Tex. App.

—13 Court determined in Ex Parte Milburn , that a $2,000,000 surety bond or $500,000 cash bond was unreasonable and reduced bail to $100,000. 8 S.W.3d 422, 427 (Tex. App.

— Amarillo 1999, no pet.)

. 6 At least one court has observed, “There has been a substantial decrease in the value of the dollar over these periods of time[,]” Ex parte Goosby , 685 S.W.2d 440, 442 (Tex. App.

— Houston [1st Dist.] 1985, no writ), but actual adjustments for
inflation wo uld look like this:
Case Reduced Bond Amount Amount in 2014 Dollars 7 Ludwig $50,000 (1991) $86,692.73 McDonald $75,000 (1993) $122,569.72

Milburn $100,000 (1999) $141,747.30

San Antonio 2008, pet. ref’d) (felony theft of a vehicle, capital m urder, and burglary of a habitation, bail reduced from $1,000,000 to $600,000).

6 In Milburn , the victim’s father was charged with capital murder for intentionally or knowingly causing the death of his two

- year - old son by blunt force trauma to the stomach

. Id. at 423 . Despite the egregious nature of the offense, this Court reduced the bail because the accused did not have any assets or money for bail, had no prior felony offe nses, but did have strong community and family ties. Id. at 426

– 427. This Court also considered the accused’s denial of any implication in his child’s death. Id. at 427 . The Court finally found that the accused did not pose a danger to the community or a flight risk for purposes of the trial. Id.

7 Adjustments were calculated using the U.S. Bureau of Labor and Statistics’ CPI Inflation Calculator. http://data.bls.gov/cgi

- bin/cpicalc.pl ( last visited Jan. 13, 2015 ).14 Here, Dixon lacks the resources to post bail at the current,
extraordinar y a mount. (2 RR 21, 26

– 27). Dixon has had no income for the past two years. ( Id. at 21). He has had to pay monthly expenses, depleting the only money he had prior to his arrest. Dixon has strong ties to the

com munity as a businessman and father to children th at also currently live
in the Amarillo community. Dixon does not pose any danger to the community. At the time of his arrest, he had two established businesses, a home, paid his child support and alimony, and was a productive member of society. Like in Mil burn , Dixon denies any involvement with the offense, and his denial is corroborated by Shepard’s testimony that Dixon did not pay, plan, or participate in Sonnier’s murder. Milburn, 8 S.W.3d at 426. Dixon does not have any criminal history. There is simply no evidence to even suggest that Dixon will not comply with his court

- ordered obligations. Rather, the record strongly suppo rts the opposite conclusion

— Dixon intends to cl ear his name. Eve n after police questioned him, Dixon left
town for an overnight trip but returned quickly to Amarillo until the time15 of his arrest. (13 TR 183

– 184). Smithwick v. State , 880 S.W.2d 510, 511 (Tex. App.

— San Antonio 1994, no pet.) (commenting on defendant’s voluntary return to Texas during investigation). And at trial, Dixon insisted upon testifying. Cross examination alone lasted two days. Put simply, the
evidence s upports the conclusion that Dixon wants to return for trial once again to face these accusations head on. Moreover, “[t]he State presented no evidence that [ Dixo n] is a flight risk or that he has outstanding bonds or warrants[.]” Ex Parte Brooks , 376 S.W.3d 222, 224 (Tex. App.

— Fort Worth 2012, pet. ref'd). This factor weighs in favor of a $100,000 bail , an amount mor e than
sufficient to assure Dixon’s appearance at his retrial.
B. Not to be Used as an Instrument of Oppression Bail is oppressive w hen the amount is so excessive that neither the accused nor the bail bonding companies can afford it. In re Durst , 148 S.W.3d 496, 499 (Tex. App.

— Houston [14th Dist.] 2004, no pet.) (reducing $3 billion bond to $150,000). Here, only one bonding company said it would be able to make this bond. The trial court, however, expressed

concer n over whether that one company would be a member of the bail16 bond board much longer, making it ineligible to make any bonds. (2 RR 23). Even with the lone willing company, Dixon would be required to pay $1 million cash, as well as provide an additional $3 million in collateral. As discussed below, he does not have that ability. Neither does his family, especially in light of the amount they have already paid and will have to pay in the future for Dixon’s retrial. Because the $10 million bail seems “designe d solely to prevent [Dixon] from getting out of jail,” it is “being used as an instrument of oppression.” Durst , 148 S.W.3d at 499.
C. Nature of the offense The State ’s theory at trial rested entirely upon a statement made by

co - defendant David Shepard two years prior to Dixon’s trial. That statement was Shepard’s lifeline. By giving the statement, the State allowed Shepard to plead no contest to killing Dr. Sonnier, t hereby avoiding the death penalty in favor of a life sentence without parole. Shepard complied, entered a plea , and avoided the death penalty. (8 TR 147

- 48). At Dixon’s trial, however, Shepard admitted that he lied in the
statement to obtain the favorabl e plea bargain. ( Id. at 145

– 147). Repeatedly, Shepard testified that what he said in his October 2012 statement was not17 true. ( Id. at 226

– 227) (testifying that his previous statement that Dixon required him to go by Dr. Sonnier’s house to get Dr. Sonnier’s patterns was “a complete embellishment, a lie.”); (9 TR 14) (testifying that his previous statements about how he acquired the murder weapon and that the weapon was given to him to murder Dr. Sonnier was “a lie.”); (10 TR 70) (testifying Dixon “never plan ned anything my decision to go back there[,]”
and that his statement about Dixon ’s planning and participation in the
murder was a “ complete embellishment.”). Instead, Shepard testified that Dixon did not pay, plan, or request that Dr. Sonnier be harmed. ( I d. at 8) (testifying that Dixon was not involved in “[k]illing or hurting anybody[,]”
and that Dixon did not want Dr. Sonnier harmed in any way); ( Id. at 73) (testifying that Dixon never planned to harm anyone and that he never paid Shepard to harm anyone) ; ( Id. at 74) (testifying that “there was never a plan. If there was a plan, all it was was to

– for me to get organized in how I could try to locate them so we could play the trick on them to cause them distress in their relationship. . . . But as far as a plan to hurt somebody,18 there never was a plan.”); ( Id. at 163) (testifying that Dixon never asked Shepard to harm Dr. Sonnier in any way). Up to half of the jury believed Shepard’s recantation. Looking to Juror Knight’s affidavit, he avers that six j urors voted not guilty on every charge except criminal trespass. (3 RR 15: DX 12). And looking to Juror Fuhrmann’s affidavit, four jurors voted to acquit Dixon of every charge. (3 RR 16: DX 13). Whatever the truth, this is a far cry from an 11

- 1 hung jury. It is likely that if the case were retried, it would again result in jury
deadlock. Admittedly, a capital murder charge is the most serious in our Penal Code. Even though the punishment could be death, this case also allowed for the possibility of proba tion on both counts. Indeed, the jury charge included instructions for charges as low as manslaughter in count 1, and criminal trespass in count 2. ( See 3 RR 15: DX 12). Thus, although Dixon is charged with an offense that is “among the gravest crimes defi ned in our criminal law and that it carries a correspondingly severe penalty,” the Court must remain “mindful of the rights guaranteed appellant under the19 Texas Constitution, our responsibilities under the Texas Constitution, and our obligation to uphold t he Texas Constitution and adhere to its principles.” Ex parte McDonald , 852 S.W.2d 730, 735

- 36 (Tex. App.

— San Antonio 1993, no pet.)

. Because the State has tried and failed to prove Dixon guilty of capital murder, and up to half of the jury did not believe the evidence was strong enough to convict him of anything but crimina l trespass, the nature and circumstances of the offense weigh in favor of a significantly reduced bond.
D. Ability to Make Bail

“ Just as a defendant'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 .” Ex p arte Beard, 92 S.W.3d 566, 573 (Tex. App.

— Austin 2002, pet. ref’d).
The accused must “s how that he had made an effort to furnish bail in
the amount set.” Ex p arte Miller, 631 S.W.2d 825, 827 (Tex. App.

— Fort Worth 1982, pet. ref’d). Dixon’s mother testified that she called twelve Lubbock bonding companies in an attempt to secure her son’s release, and only one bonding20 company was willing to make the current bond. (2 RR 23) . However, Mrs. Dixon’s testimony indicated that neither Dr. Dixon nor his family can afford the requisite $1,000,000 cash down payment and $3,000,000 collateral; this is particularly true because the family spent approximately $1,250,000 for Dr. Dixon’s f irst trial and faces additional expenses to finance a retrial. (2 RR 23

– 24). Mrs. Dixon’s testimony reflects that the Dixon family is willing to assist in posting bail (in addition to legal fees and associated expenses for his retrial), but also reveals the family’s lack of resources to post the current bail. The Dixon family’s attempts to post Dr. Dixon’s bail after paying for the trial and for his child support, alimony, and business

- related bills, are important. But , more importantly, an accused’s fami ly bears no legal obligation to help him post bail. See In re Estrada, 398 S.W.3d 723, 727

– 28 (Tex. App.

— San Antonio 2008, pet. ref’d). In addition, Dr. Dixon has been in custody for two years. His funds have been depleted and his only asset, his house, has no equity. Effectively,
the current bail amount constitutes no bail because i t forces Dixon to21 remain in jail pending retrial. See Ex Parte Milburn, 8 S.W.3d 422, 424 (Tex. App.

— Amarillo 1999, no pet.) ; see also T EX
. C ONST . art. I, § 11 (“ All prisoners shall be b ailable by sufficient sureties . . . .”). This factor weighs heavily in favor of a $100,000 bail.
E. Future Safety of the Victim and the Community “The State presented no evidence concerning safety of the community if [Dixon] is released on bail.” Ex parte Milburn , 8 S.W.3d 422, 426 (Tex. App.

— Amarillo 1999, no pet.). This factor weighs in Dixon’s
favor.
F. Remaining Factors In Ludwig v. State , an en banc Court of Criminal Appea ls specifically highlighted a few factors also found here to support its decision to reduce a capital murder bail from $1,000,000 to $50,000: significant community ties, license to practice medicine, no prior criminal record. 812 S.W.2d 323, 324 (Tex. Crim . App. 1991). The Ludwig court warned: “[T]his Court has yet to condone a bail amount even approaching seven figures, even in a capital

case. Id. at 325.22 Dixon has deep roots in west Texas. He was born and raised in Spearman, and most of hi s family still lives there. Dixon still owns a home
in Amari llo. He has three children that live there. He still owns a business
in Ama rillo. Prior to his arrest, Dixon made Amarillo his home since 2003. (13 TR 35). Other than time spent obtaining a master’s degree in Clemson, South Carolina in the 1980’s, ( Id. at 31), and a two

- year surgical specialty at the University of Oklahoma in the early 2000’s, ( Id. at 35), Dixon has lived
in Texas his entire life. Dixon’s education and employment history support a lower bond. Ex parte Rubac , 611 S.W.2d 848, 850 (Tex. Cri m. App. 1981) (citing “petitioner's education and ability to pursue gainful employment” as support for lowering an appeal bond). Dixon has a chemistry de gree from West Texas State (1 3 T R 28), a master’s degree in microbiology from Clemson ( Id. at 30), an MBA from SMU ( Id. at 32), a medical degree from Texas Tech University Health Science Center ( Id. at 34), and a surgical specialty from the University of Oklahoma ( Id. at 34

- 35). Prior to his arrest, he was a licensed surgeon with a practice in Amarillo. ( Id. at 35).23 Dixon has no history of complying with previous bond conditions because he has no prior criminal record. Because nearly all of the non

- statutory factors weigh in Dixon’ s favor,
this Court must reduce his bail

. G. Willing to Comply with Conditions Willingness to comply with con ditions favors a reduction from an already reasonable bail. In re Durst , 148 S.W.3d 496, 501 (Tex. App.

— Houston [14th Dist.] 2004, no pet.) (citing Nguyen v. State, 881 S.W.2d 141, 144 (Tex. App.

— Houston [1st Dist.] 1994, no pet.) ). For example, in Durst , the trial court ordered, inter alia , that Durst surrender his passport and wear an electronic GPS monitor if he were able to post t he $3 Billion bail
set. Durst, 148 S.W.3d at 501. The appellate court, however, first found that a reduction to “well over . . . $300,000” would be reasonable but t hen
addressed the effect of the trial court’s conditions on the bail amount. Id. The Court concluded that the conditions imposed brought the otherwise
unusual case i nto the proper range and ultimately set bail at $150,000 for
each offense. Id.24 Thi s Court should do the same. Dixon has agreed to self

- imposed
conditions. He surre ndered his passport to the Court without being asked (2 RR 17) and is willing to wear a GPS monitor ( Id. at 28). Dixon’s willingness to comply with these conditions supports an even lower bail.

P RAYER FOR R ELIEF The State of Texas has tried and failed to prove Dixon guilty of capital murder. In the process, Dixon’s financial resources have been exhausted, as have over $1 million of his family’s resources. No Lubbock County capital murder defendant has ever been forced to post a bail as high as this, even before their first trial. Dixon should not be forced to
either.
W HEREFORE , Dixon prays this Court reverse the trial court’s decision and fix bail at $100,000, or whatever other amount the Court deems appropriate.25 Respectfully submitted,

_______ __________________ Frank Sellers Texas Bar No. 24080305 frank@hurleyguinn.com Daniel W. Hurley Texas Bar No. 10310200 dwh@hurleyguinn.com
H URLEY , G UINN & S ELLERS 1805 13th Street Lubbock, Texas 79401 P: 806.771.0700 F: 8 06.763.81 99 Selden B. Hale, III Texas Bar No. 08734000 Sbhale310@aol.com A TTORNEY AT L AW 310 Southwest 6 th Avenue Amarillo, Texas 79101 P: 806.372.5711 F: 806.372.1646 Attorneys for Thomas Michael Dixon26 C ERTIFICATE OF S ERVICE Pursuant to T EX
. R. A PP
. P. 9.5( d) , this brief was served on opposing counsel via email to jford@lubbockcda.com & lmurphree@lubboc kcda.com on January 13, 2015

.

_________________________ Frank Sellers
C ERTIFICATE OF C OMPLIANCE Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), I hereby certif y that this brief contains 4,844 words (excluding the capti on, identification of the parties, index, list of authorities, signature, certification, and certificate of compliance). This is a computer

- generated document created in Microsoft Word, using 14

- point typeface for all text, except for footnotes which are i n 12

- point typeface. In making this certificate of compliance, I am relying on the word count provided by the software used to prepare the document.

_________________________ Frank Sellers