### NO. PD-0398-15
In the 

## Court of Criminal Appeals for the 

## State of Texas

No. 07-14-00433-CR In the Court of Appeals for the Seventh District of Texas

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



### EX PARTE THOMAS MICHAEL DIXON Petitioner-Appellant

BRIEF ON THE MERITS

DANIEL W. HURLEY Tex. SBN 10310200 FRANK SELLERS Tex. SBN 24080305 AARON R. CLEMENTS Tex. SBN 00795861 Email: aaronrc@swbell.net

Hurley, Guinn & Sellers 1805 13 th Street Lubbock, Texas 79401 (806) 771-0700 phone

(806) 763-8199 fax SELDEN HALE Attorney at Law 310 Southwest 6 th Avenue

Amarillo, Texas 79101 (806) 372-5711 phone

(806) 372-1646 fax
ATTORNEYS FOR APPELLANT

ORAL ARGUMENT WAIVED PD-0398-15 COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS Transmitted 6/18/2015 6:52:18 PM Accepted 6/19/2015 8:54:41 AM

ABEL ACOSTA CLERKi IDENTITY OF JUDGES, PARTIES & COUNSEL Trial Court Judge: Hon. Jim Bob Darnell 140 th District Court of Lubbock County, Texas Petitioner-Appellant: Thomas Michael Dixon Trial and Appellate Counsel: Daniel W. Hurley Frank Sellers Aaron R. Clements (appellate only) Hurley, Guinn & Sellers 1805 13 th St. Lubbock, Texas 79401 (806) 771-0700 (806) 763-8199 fax Selden Hale 310 Southwest 6 th 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 78711-3046ii TABLE OF CONTENTS IDENTITIES OF JUDGES, PARTIES, & COUNSEL..............................................i
TABLE OF CO NTENTS.......................................................................................... ii
INDEX OF AUT HORITIES.....................................................................................iv
STATEMENT OF THE CASE..................................................................................1 STATEMENT REGARDING ORAL ARGUM ENT ...............................................2 ISSUE PRESEN TED.................................................................................................2 STATEMENT OF FACTS ........................................................................................3 SUMMARY OF TH E ARGUME NT ........................................................................7 ARGUMENT AND AU THORITIE S......................................................................10
A. Standard of Review .............................................................................10
B. Factors for Determini ng Reasonable Bail ...........................................11
C. The Court of App eals’ Deci sion..........................................................14
D. Proper comparison of the bail amount in this case to those set in previous capital mu rder cases gives rise to an inference that bail in this case is excessive and oppressive ............................................................................................15 E. Comparison of the facts of this case measured against all of the criteria for setting of bail, in light of the bail deemed appropriate in other capital cases, reveals that the trial court abused its discre tion and that the Court of Appeals erred in hol ding otherw ise.....................................................17 F. The bail amount set in this case has the effect of operating as an instru ment of oppr ession............................................24iii CONCLUSION AND PRAY ER .............................................................................27 CERTIFICATE OF SERVIC E ................................................................................28 CERTIFICATE OF COMPLIANCE.......................................................................28iv INDEX OF AUTHORITIES CASES PAGE TEXAS Balboa v. State , 612 S.W.2d 553 (Tex.C rim.App. 1981)........................................11 Ex parte Barrera , 2000 WL 280448 (Tex. App. – Houston [1 st Dist.] 2000).........10 Ex parte Beard , 92 S.W.3d 566 (Tex. App. – Aus tin 2002, pet. ref’d)............passim Ex parte Davis , 147 S.W.3d 546 (Tex. A pp. – Waco 2004) ...................................19 Ex parte Estrada , 398 S.W.3d 723 (Tex. App. – San Antonio 2008, no pet.) .......................................................................................................... 16, 18 Ex parte Gonzalez , 383 S.W.3d 160 (Tex. App. – San Antonio 2012, pet. ref’d ) ................................................................................10, 16- 18, 20-21 Ex parte Harris , 733 S.W.2d 712 (Tex. App. – Austin 1987, no pet.)....................13 Ex parte Henson , 131 S.W.3d 645 (Tex. App. – Texarkana 2004).............12, 18, 25 Ex parte Ivey , 594 S.W.2d 98 (Tex. Cr im. App. 1980) ..................................... 12, 25 Ex parte Milburn , 8 S.W.3d 422 (Tex. App. – Amarillo 1 999) ........................11, 13 Ex parte Reyes , 4 S.W.3d 353 (Tex. App. – Houston [1 st Dist.] 1999)...................10 Ex parte Rodriguez , 595 S.W.2d 549 (Tex. Cr im. App. 1980) ...............................12 Ex parte Rubac , 611 S.W.2d 848 (Tex. Crim. App. 1981) (panel op.).............10, 13 Ex parte Scott , 122 S.W.3d 866 (Tex. App. – Fort Worth 2003, no pet.)......... 11-12 Ex parte Vasquez , 558 S.W.2d 477 (Tex. Crim. App. 1977) ..................................12
In re Durst , 148 S.W.3d 496 (Tex. App. – Houston [14 th Dist.] 2004, no pet.) (op. on reh’g)..............................................................................13, 24v Ludwig v. State , 812 S.W.2d 323 (Tex. Crim . App. 1991)................................13, 16 Maldonado v. State , 999 S.W.2d 91 (Tex. App. – Houston [14 th Dist.] 1999) .......10 Montgomery v. State , 810 S.W.2d 372 (Tex. Crim. A pp. 1991) (op. on reh’g)......11 CONSTITUTIONAL PROVISIONS
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. A RT . I, § 13 .........................................................................................11 STATUTES
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. A RT . 17.01 (Ver non 2013) ........................................11
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. A RT . 17.15 (Vernon 2013) .............................. passimSTATEMENT OF THE CASE Appellant Thomas Michael Dixon wa s arrested on July 16, 2012, and charged with capital murd er. (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 allegi ng that he hired a third party to kill the boyfriend of Dixon’s former romantic interest. Dixon’s trial began on Oc tober 27, 2014. (CR 8). After three weeks of evidence, the jury was unabl e to reach a verdict and the trial court declared a mistrial. Id. On December 10, 2014 (almost two and a half years afte r his original arrest), Dixon filed a writ of habeas corpus seeking a bond reduction, challenging his continued incarceration pending trial. Id. at 5 After a hearing on December 17, 2014, the trial court refused to reduce Dixon’s bail. ( Id. at 15). The Court of Appeals upheld the trial court’s decision on March 6, 2015. This Court granted Dixon’s Petition for Discretionary Review on June 3, 2015, and this proceeding follows.

1 Citations to the record appear as follows: Writ Hearing— Reporter’s Record: __ RR __; Defense Exhibit: DX __. Clerk’s Record: CR __. Original Trial Transcript: __ TR __, where the first blank represents the day of trial and the second blank the transcript page. All cita tions to the original trial come from DX 14 offered at the writ hearing. The wr it hearing exhibit volume lists th is as a State’s Exhibit that was provided to the Court of Appeals.2 STATEMENT REGARDING ORAL ARGUMENT Oral argument is waived in order to expedite consideration of this case by the Court.

ISSUE PRESENTED Is a bail amount of ten million dollars, almost seven times larger than any previously approved in a capital case in this state and over three times larger than any approved in any case in this state, gr eater than reasonably necessary to secure the attendance at trial of an accused who has spent three years in jail (including a mistrial based on the jury’s failure to agree on a verdict), has no remaining personal net worth, has strong ties to th e Panhandle region of Texas and few ties elsewhere, has no criminal history, is not alleged to have persona lly participated in any violent act, and has offered to subm it to additional conditions designed to secure his attendance at trial?3 STATEMENT OF FACTS In his application for writ of habeas corpus filed with the trial court, Appellant Thomas Michael Dixon (hereinaft er “Dixon” or “Appellant”) asserted that the amount of bail set at ten million do llars to secure his release from custody pending retrial was both excessive and oppr essive and should be reduced. (CR 5- 7). At the habeas hearing, Dixon subm itted the reporter’s record of the underlying mistrial along with affidavits from two juro rs 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 Lubb ock pathologist Joseph Sonnier, and the State attempted to show that Dixon paid Shepard to do so because of Dixon’s jealousy over Sonnier’s rela tionship 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 infide lity to Shetina, and that Shepard’s murder of Sonnier was an independent act never contemplated or asked for by Dixon. Id. at 2-3. Dixon offered testimony of a Lubbock County bail bondsma n, Ken Herzog, who testified that he would not be able to write such a bond, and that even if he4 could, the requirements fo r payment would themselves be onorous, including a cash payment of one million dollars plus co llateral 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 w ith roots in the original Spearman settlers and that Dixon still has family and friends th ere. (2 RR 18-19). She added that he has deep ties to the Amarillo area, with his house, his fo rmer 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 al so 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 Di xon’s bond required a one million dollar down payment in cash and collateral of at l east 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 wa s familiar with Dixon’s finances, and that said finances and assets were essent ially 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 car s and a trust fund possessing substantial assets, those assets had been liquidated a nd used in payment of his trial expenses, which were substan tially larger than one million dollars. (25 RR 24, 34). Mrs. Dixon added that Dixon ha d outstanding mortgage obligations as well as contractual alimony and child s upport payments totaling approximately $7,800 per month which were be ing covered by herself and Dixon’s sister. (2 RR 25). Mrs. Dixon noted that he is the bene ficiary 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 su bstantially 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 elect ronic monitoring as a condition of his release, and Dixon surrendere d his passport to the court. (2 RR 17, 28). Dixon also offered a number of pr evious Lubbock County capital murder indictments which reflected the bond am ounts in each case. Those exhibits reflected that the highest bonds previo usly set in Lubbock County were for one million dollars. (3 RR 6: DX3; 3 RR 14: DX 11). The State declined to offer any eviden ce other than that elicited via cross examination, but essentially argued via in sinuation that since Dixon’s family had paid over a million dollars in hi s defense at trial, that Di xon and/or his family must have substantial additional resources, and that for th is reason, his bond should remain ten times as high as any previous ly set in Lubbock C ounty. (2 RR 35). Despite this lack of countervailing evidence and a showing that the bail amount set6 was an order of magnitude greater than a ny previous set in L ubbock County (not to mention that it was an order of magnitude greater than any previously-approved bail in a capital case in this State), the tria l court nevertheless denied relief. (2 RR 37; CR 15). The trial court specifically stat ed 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 th e 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).7 SUMMARY OF THE ARGUMENT Even taking into consideration the de ferential abuse of discretion standard, the trial court abused its di scretion (and the Court of Appeals erred by sanctioning that abuse) by refusing to reduce its ear lier ten million dollar bail in this case, citing to the nature of this case as a capital case potentially involving the death penalty as the trial court’s justification. Bail must be set in an amount which with reasonably assure the defendant’s attendance at trial; bail set higher than th is amount is excessive, and bail set so high that it guarantees attendance by k eeping a defendant incarcerated is oppressive. T EX .C ODE C RIM .P ROC

. A RT . 17.15 provides statutory guidance for factors courts should take into consider ation in setting bail; additionally, several common law/constitutional factors should be considered. While some factors – particularly the nature of the crime alleged and the possible punishment – may have higher importance than others, no one factor is dispositive. Additionally, inability to make a given bail does not n ecessarily indicate that such bail is unreasonable, but by the same token, ability to make a given bail does not justify setting it at such a level. The questi on is what bail would reasonably assure attendance, and this zone of reasonableness may be fu rther defined by looking to prior bail amounts for similar cases.8 In the case at bar, the trial court erre d by focusing solely on the “nature of the crime” factor, and the Court of App eals sanctioned this e rror by determining that the trial court had broad discre tion to ignore evidence counter to its determination and that prior bail amounts ha ve no bearing on defi ning the “zone of reasonableness.” The trial court thus de termined that it would not reduce the ten million dollar bail set in this case – the hi ghest ever approved by an appellate court in Texas in any case by a factor of more than three, and the highest capital bail approved in this state by a factor of al most seven. This departure from prior reasonable bail amounts itself strongly s uggests an abuse of discretion, if not allows a direct inference that the bail amo unt was set in an amount calculated to be oppressive. The determination by the Court of Appeals that the defendant did not prove the current bail amount to be excessi ve was therefore erroneous, and should be reversed. Additionally, the evidence presented demonstrated that while Dixon has been charged with capital murder-for-hir e, the strength of the State’s case was relatively weak (as evidenced, in part, by the mistrial in this case and juror statements following the mist rial). Also, even assuming arguendo that the State’s allegations are accurate, Dixon is not a lleged to have pers onally engaged in violence. Furthermore, Dixon presented evidence that after spending resources necessary to defend himself to date, his pe rsonal resources are exhausted, and that9 the resources available to him from his family (who have been bankrolling his defense) have dwindled as well, leaving Dixon unable to hire a bondsman, even if one were able and willing to make such a high bail amount. Dixon also demonstrated his strong ties via family and employment to the Texas Panhandle region, his lack of a criminal history of any sort, and that he constitutes no danger to the victim (who is beyond harm) or to the community at large. Dixon also offered to submit to conditions which reduce, if not eliminate, any flight risk he might otherwise pose, including the su rrender of his passport and willingness to undergo electronic monitoring. In addition to the bail amount approved by the Court of Appeals in this case giving rise to an inference of excessive ness by being substantially higher than any prior record (much less nor mal) appellate-appr oved bail amount in this State, comparison of the foregoing facts of this case to (1) the facts of the previous record-high capital murder bail and to (2 ) the facts of the closest analogous case lead to the conclusion that the trial cour t abused its discretion in setting an eightfigure bail amount, and that the Court of A ppeals erred by sanctioni ng this abuse of discretion.10 ARGUMENT AND AUTHORITIES This case arises from the Court of Appe als’ sanctioning of the trial court’s denial of relief on Appella nt Thomas Michael Dixon’s application for writ of habeas corpus. That writ challenged the ten million dollar bail se t by the trial court in the underlying capital murder allegati on against Dixon – currently the highest bail amount ever approved by an appella te court in the State of Texas, 2 and an amount almost seven times greater than th e previous record in a capital case of $1,500,000, set in 2012. Ex parte Gonzalez , 383 S.W.3d 160 (Tex. App. – San Antonio 2012, pet. ref’d.). For the follo wing reasons, the lower courts’ rulings are in conflict with precedents of this Court and other courts of appeals, and represent such a departure from the usual course of judicial proceedings that this Court’s intervention is warranted. A. Standard of Review An appellate court’s review of a trial court’s decision on a request for reduction of bail is reviewed for abuse of discretion. Ex parte Rubac , 611 S.W.2d

2 The highest approved bail amounts in Texas have been in major controlled substance trafficking cases, which courts have recognized as “unique” because of the nature of such offenses, which require particip ants and assets to be highly mobile and which involve large amounts of cash, suggesting “monied backers who may consider the cost of bail as a normal business expense.” Maldonado v. State , 999 S.W.2d 91, 96 (Tex. App. – Houston [14 th Dist.] 1999) (reduced bail of $2,500,000 reasonabl e in drug trafficking case); see also Ex parte Reyes , 4 S.W.3d 353 (Tex. App. – Houston [1 st Dist.] 1999) ($3 million bail not excessive in case involving 721 kg of cocaine); Ex parte Barrera , 2000 WL 280448 (Tex. App. – Houston [1 st Dist.] 2000) (unpublished op.; $3 million bail not excessive in case involving over 2,000 pounds of marijuana). Despite the pr oliferation of drug trafficki ng and concomitant prosecutions thereof, even this class of cases apparently ha s yet to see an approved bail amount more than low seven figures.11 848, 850 (Tex. Crim. App. 1981) (panel op. ). Abuse of discretion review requires more than merely concluding that a tria l court did not act in an arbitrary or capricious fashion, but requires a reviewi ng court to “measure the trial court’s ruling against the relevant criteri a by which the ruling was made.” Ex parte Beard , 92 S.W.3d 566, 573 (Tex. A pp. – Austin 2002), citing Montgomery v. State , 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh’g). B. Factors for Determining Reasonable Bail Bail is the security given by a defenda nt that he will appear in court to answer the accusation brought against him. T EX .C ODE C RIM .P ROC

. A RT . 17.01 (Vernon 2013). Bail balances the presump tion of innocence of the accused with the compelling interest of the State th at the accused app ear to answer the accusation against him. See Balboa v. State , 612 S.W.2d 553, 556 (Tex.Crim.App. 1981). Excessive bail is cons titutionally prohibited. U.S. C ONST

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. A RT . I, §§ 11, 13. 3 Bail is excessive if it is “set in an amount greater than is reasonably necessary to satisfy th e government’s legitimate interests.” Beard, 92 S.W. 3d at 573 (emphasis added). The primary purpose of an appearance bond (that is, the government’s principal legitimate interest) is to

3 While both Dixon’s rights under both Federal law and Texas law are implicated by the trial court’s refusal to set a reasonable ba il amount, the Federal Constitutional and statutory framework for what factors courts should consid er is “similar in subs tance to the factors considered by Texas courts under the Texas constitution and state law.” Ex parte Milburn , 8 S.W.3d 422, 424 (Tex. App. – Amarillo 1999). Conso lidation of these challenges into a single argument has generally been deemed appropriate. See Ex parte Scott , 122 S.W.3d 866, 868 (Tex. App. – Fort Worth 2003).12 secure the presence of the defendant at trial on the offense charged. Ex parte Vasquez , 558 S.W.2d 477, 479 (T ex. Crim. App. 1977); Ex parte Scott , 122 S.W.3d 866, 868 (Tex. App. – Fort Worth 2003, no pet.). Bail should not be set so high as to guarantee a defendant’s appearance by preventing him from obtaining pretrial release, but should be high en ough to reasonably assu re the defendant’s appearance at trial. Ex parte Ivey , 594 S.W.2d 98, 99 (Tex. Crim. App. 1980); Ex parte Henson , 131 S.W.3d 645, 646 (Tex. App. – Texarkana 2004). Ordinarily, a defendant challenging the amount of bail via an application for writ of habeas corpus bears the burden of demonstrating that bail is excessive. Ex parte Rodriguez , 595 S.W.2d 549, 550 (Tex. Crim. App. 1980). However, when a trial court orders bail in an amount extrao rdinary for a given class of case, such a “dramatic departure from prior practice is at least suggestive of an abuse of discretion.” Beard , 92 S.W.3d at 573. Texas has enacted a statutory framework to help guide courts in ensuring defendants’ constitutional rights to reasonable bail are secured. T EX
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. A RT . 17.15 (Vernon 2013) specifically identifies five specific factors in determining reasonable bail including that bail “shall be sufficiently high to give reasonable assurance that the undertaking [of appearing for trial] will be complied with” but that the “power to require bail is not to be so used as to make it an13 instrument of oppression.” 4 Id. Additionally, the nature and circumstances of the alleged offense are to be considered along with the ability to make bail 5 and the future safety of a victim of the alle ged offense and the community generally. 6 Id. Courts also look to several common law fact ors such as a defendant’s work record, family and community ties, length of re sidency, offered c onditions of bond, and any aggravating circumstances alleged to have been involved in the offense. See Rubac , 611 S.W.2d at 849-50. Finally, while so me authorities have criticized the use of prior decisions because “appellate d ecisions on bail matters are often brief and avoid extended discussions, and becau se the ‘cases are so individualized,’” courts nevertheless look to pr ior cases for instruction and, at a minimum, for some guidance on whether a given bail amount is within a “reasonable zone of disagreement” or whether it provides “a dramatic departure from prior practice

4 The prime example of bail being used as an in strument of oppression is when bail is set outside a defendant’s reach for the express or implied purpose of keeping the defendant incarcerated pending trial. See In re Durst , 148 S.W.3d 496, 499 (Tex. App. – Houston [14 th Dist.] 2004); Ex parte Harris , 733 S.W.2d 712, 714 (Tex. App. – Au stin 1987, no pet.). At least one Texas court has implied that other circumstances may lead to oppression. Milburn , 8 S.W.3d at 424 (using forced confinement as one example of oppression, implying that others exist). 5 Ability to make bail – like the other factors – is not individually controlling as to what constitutes reasonable bail. “Just as a defendant ’s inability to afford bail does not, in itself, demonstrate that bail is excessive , a defendant’s ability to afford bail in the amount set does not in itself justify bail in that amount.” Beard , 92 S.W.3d at 573. 6 In considering who is a “victim” of an o ffense for purposes of application of Article 17.15(5), a plurality of this Court has stated, without definitively holding, that the term does not “cover anyone not actually a complainant in the charged offense.” Ludwig v. State , 812 S.W.2d 323 (Tex. Crim. App. 1991) (per curiam).14 [which] is at least suggestive of an abuse of discretion.” Beard , 92 S.W.3d at 571, 573. C. The Court of Appeals’ Decision The Court of Appeals found that the r ecord in this case did not establish an abuse of discretion by the trial court. In so doing, the Court of Appeals did not weigh the ten million dollar bail amount a nd the evidence presented at the writ hearing against the relevant Constitutional and statutory criteria, including whether a bail amount almost seven times higher than any previously imposed in a single capital murder case itself raises an inference that bail is excessive and is being used as an instrument of oppression. The Cour t of Appeals rather focused its analysis on attempting to give total deference to the trial court’s possible, hypothetical evidentiary weight and credibility determina tions. See Slip Op. at 10-12. In so doing, the Court of Appeals – in contravention to the op inions of this Court and other courts of appeals – confused a tria l court’s discretion in giving weight and credence to particular evidence with anal ysis of how the particular legal factors implicated by the evidence – particularly undisputed evidence – combine to lead to a proper legal conclusion on the reasonabl eness of a given bond amount. See, e.g., Slip Op. at 11 (despite evidence of Dix on’s personal situation and ties to Texas and Amarillo being “essentially undisputed”, the trial court coul d nevertheless “have found them unconvincing”, and that “deter minations of the weight to be given15 particular testimony and of its bearing on the factors for setting bail were determinations to be made by the trial court.” (emphasi s added)). The Court of Appeals thereby abandoned its duty indepe ndently “to measure the trial court’s ruling against the relevant criteria.” Beard , 92 S.W.3d at 573. This is particularly notable because the trial court in this case expressly stated that it was refusing to reduce Dixon’s bond on the sole basis that he has been charged with a capital offense (2 RR 36). The Court of Appeals failed to measure whether this ruling, including the decision to disregard all other factors regarding the propriety of a given bail amount, was within the zone of reasonableness. Furthermore, the Court of Appeals failed to look to the backdrop of previous bail decisions found to be reasonable (or unrea sonable) to determine whether the trial court’s ruling based on this lone criterion wa s within the zone of reasonableness. By failing to properly consider the amount of bail set in this case against the backdrop of prior approved bail amounts, the Court of Appeals not only condoned the trial court’s focus on one single bail fact or (the general nature of the charge and possible punishment) but also refused to measure the decision itself (i.e., a refusal to reduce bail from $10 million simply becau se a capital case is involved) for reasonableness. D. Proper comparison of the bail am ount in this case to those set in previous capital murder cases gives rise to an inference that bail in this case is excessive and oppressive.16 In the entirety of reported Texas cases , the highest bail ever approved by an appellate court in a single- count capital murder case a ppears to be $1,500,000.00. Ex parte Gonzalez , 383 S.W.3d 160 (Tex. A pp. – San Antonio 2 012, pet. ref’d). That case expressly noted that prior to it s particular facts, the highest capital bail approved, reported or not, “even in the most egregious capital murder cases” was $1,000,000.00. Id . at 164, citing Ex parte Estrada , 398 S.W.3d 723 (Tex. App. – San Antonio 2008, no pet.). In examin ing bail amounts, both this Court and the courts of appeals have been guided by pr eviously approved bail amounts, and have viewed wildly disproportionate ba il amounts with strong suspicion. Ludwig v.
State , 812 S.W.2d 323, 324 (Tex. Crim. App. 199 1) (per curiam) (observing that at that time, “this Court [had] yet to c ondone a bail amount even approaching seven figures, even in a capital case.”); Estrada , 398 S.W.3d at 727 (noting that a detailed review found “no reported Texas case sustai ning 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 th at violate the Constitution’s prohibition against excessive bail.”); Beard , 92 S.W.3d at 574 (specifically noting that17 consideration of the bail set in other ca pital 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 mi llion dollars – is almost seven times higher than the record amount set in Gonzalez. This situation strongly parallels the “dramatic departure from prior practice” foun d to constitute an abuse of discretion
in Beard , in which a trial court se t bail in an amount at leas t ten times greater than any previously (at that time) approved in a capital murder case. 92 S.W.3d at 573. The Beard court noted that such a de parture, standing alone, “is at least suggestive of an abuse of discretion,” and went on to indeed find such abuse. Id. Likewise, the trial court’s departure in this case s hould be determined to be equally abusive of the discretion given it, and the judgment of the Court of Appeals holding to the contrary should be reversed. E. Comparison of the facts of this case measured against all of the criteria for setting of bail, in light of the bail deemed appropriate in other capital cases, reveals that the trial court abused its discretion and that the Court of Appeals erred in holding otherwise. The Court of Appeals re lied heavily on language from Beard (cited supra ) noting that reported cases have some usef ulness limitations to completely dismiss the backdrop of reported (and unreporte d) Texas cases disapproving high bail amounts and, as a result, to approve the ten million dollar bond se t in this case. Slip Op. at 12, citing Beard , 92 S.W.3d at 571. In so doing, the Court of Appeals18 ignored (1) Beard’s subsequent note that “[n]everthel ess, a review of some recent capital murder bail cases is instructive” a nd (2) the entirety of caselaw developed since Beard ’s 2002 decision, which has increasi ngly become lengthy and extended. See, e.g. , Estrada , 398 S.W.3d 723; Gonzalez , 383 S.W.3d 160; Ex parte Henson , 131 S.W.3d 645 (Tex. App. – Texarkana 2004); Beard , 92 S.W.3d at 571-2. Turning to the individual bail factors against the backdrop of precedent, in this case, the Court of Appeals focused on the habeas court’s role as having also been the trial court as justifying giving outside credence to the trial court’s possibly having given outsized weight to the nature and strength of the case against Dixon as a reason justifying approval of the instan t bail. Slip Op. at 9-10. By so doing, the Court of Appeals – which had the tria l court record befo re it and which was able to succinctly summarize the factual natu re of this case for itself – abdicated its role to independently measure the trial c ourt’s refusal to gran t relief against the Art. 17.15 statutory criteria, common law factors, and (as note, supra , bail amounts in similar cases). The evidence reflects that this cas e involves an alle ged murder-for-hire against a specific target for a specific motive. Dixon was not accused of having personally been involved in the killing of th at specific target. It is undisputed that Dixon has no prior criminal history. There was evidence that Dixon was and remains unable to satisfy such a high ba il amount, particularly because he has19 spent almost three years in jail, and re mains in custody now, while any reasonable person with the means to do so would have sought to make bail. While the Court of Appeals faulted Dixon for presenting “meager” evidence of his financial condition, that “meager” evidence included many of the most relevant specifics of major financial assets looked to by this C ourt and other courts of appeals in bail cases (i.e., there was testimony regardin g Dixon’s home ownership and value vs. encumbrances, car ownership, and owne rship and liquidation of other assets, including securities investments, as we ll as testimony regarding his ongoing liabilities, that painted a clear picture that Dixon himself is destitute and relying on the largesse of his relatives) 7 . There was also “essentia lly undisputed” evidence of Dixon’s ties to the State of Texas and mo re particularly the Panhandle region, including his upbringing in Spearman, hi s practice of medicine in the Amarillo community for almost ten years at the time of the alleged offens e, and his relatives (including, but not limited to, his three children and his mother) living in the Amarillo and Spearman areas. There was no evidence that Dixon presents a threat to community safety; even taking the Stat e’s allegations as true, his jealousy and anger were directed at Sonnier, who is now deceased. While the State focused on trial evidence that Dixon had traveled once in ternationally to sugge st that he might

7 It is also worth noting that the State has consistently expressed disbelief that Dixon is now essentially without ongoing resources with wh ich to make bail based on the fact that tremendous sums have already been spent on his defense. 2 RR 35. Howe ver, a Court “will not imply the existence of financial resources absent evidence of their existence.” Ex parte Davis , 147 S.W.3d 546, 551 (Tex. App. – Waco 2004).20 be a flight risk, there was no evidence that he has any ties (much less significant ones) to a foreign country, and Dixon sought to allay fears that he might remove himself from American jurisdiction by surrende ring 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 i mmediately to Amarillo. Slip Op. at 4. Finally, Dixon agreed to undergo electronic monitoring as a condition of a bail reduction, even further bolstering the affirm ative evidence that Dixon is not a flight risk or a danger to the community, and that even with a reduced bail, “the undertaking will be complied with.” In contrast, the defendant in Gonzalez (in which the Texas capital record bail of $1.5 million was determin ed appropriate) was alle ged 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 histor y, and to have recen tly worked or have addresses in at least five other states a nd 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 Gonzalez21 and his character and the individual and his fa mily were also shown to be in fear of reprisal from Gonzalez. Id. Evidence also showed that Gonzalez apparently had no qualms about using others to obtain weapons and ammunition, including the murder weapon, and that Gonzalez ke pt a number of weapons and sizeable quantities of ammunition at his house. Id. at 163-64. Gonzal ez’s evidence of his financial condition also came from a co usin, who (unlike Dixon’s mother) was shown to be “wholly unaware of th e Gonzalez family finances.” Id. at 162. Each of these points contrasts sharply with Dix on’s case and leads to the conclusion that Dixon’s bond should be lower than that approved of the violent cop killer of Gonzalez , yet the Court of Appeals erroneously determined that the trial court’s refusal to lower Dixon’s $10 million bail was not an abuse of discretion. As asserted supra , Dixon’s case is more in line with that of Beard , in which the defendant was charged with planning the murder of her husband and procuring another to commit the murder, resulting in that defendant receiving significant assets from her husband’s es tate. 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 consid ered that much of the assets received by Beard was consumed in the in terim by basic living requirements, gifts to other family members, and significan tly, by the “substan tial legal expenses” incurred by both matters surrounding her hus band’s estate as well as the pending22 murder charges. Id. at 570. Medical records reflected that Beard had psychological problems, but was overc oming them, and that there was an outstanding protective order against Beard in favor of her daught ers 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 Ar izona prior to coming to Texas, and had moved several times between Travis and Ta rrant 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 e ffect 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 comm ission of a violent crime, there is no evidence that she has been a vi olent person in the past. . . . [W]e find no evidence in this record th at 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 se rvices of another to commit murder against a specific target for a specific reason, and Dixon has no history of violence. Against this backdrop, taking the nature and circumstances of the alleged offense into consideration, the sheer amount of Dixon’s bail – twenty times that determined reasonable in Beard and slightly more than that found un reasonable23 therein, on facts stronger and more egregious than the alleged conduct in this case – is sufficient to invoke a presumption th at Dixon’s bail is excessive, and that bail is being used as an instrument of oppression. The Beard court went on to consider that defendant’s ability to make bail, and explicitly viewed the evidence “in the light most favorable to the district court’s order”, finding it “evident that Beard has access to financial resources exceeding those of most criminal defendants.” Id . at 573. While the Austin court accepted these propositions arguendo , and even without a detailed showing of what Beard’s financial resources were, th at 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 al leged accomplice was arrested (as did Dixon), and that she had surrendered her passpor t 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.24 Beard concluded by noting that the trial court had set her bail at $8,000,000,
and that such amount was “more than ei ght times higher than the highest bail previously determined to be reasonable in a reported Texas capital murder case. Such a dramatic departure from prior practic e is at least suggestive of an abuse of discretion.” 8 Id. As with Beard , the trial court in this case set bail almost seven times higher than the previous record-h igh reasonable bail in a capital case, and just as in Beard , this dramatic departure from prio r practice is at least suggestive – if not presumptive – of an abuse of discre tion. The Court of Appeals in this case therefore decided this case in a way that c onflicts directly with the prior decisions of the Austin Court of Appeals and with th is Court and other cour ts of appeals, and this Court should therefore exer cise its supervisory power. F. The bail amount set in this case ha s the effect of operating as an instrument of oppression Bail set so high as to guarantee a de fendant’s appearance at trial (by ensuring that the defendant does not ma ke bail) becomes an instrument of

8 Without belaboring the issue, th ere is another Texas case inst ructive both for its lengthy discussions of the factors regard ing bail as well as its outcome: In re Durst , 148 S.W.3d 496 (Tex. App. – Houston [14 th 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 14 th District Court of Appeals ne vertheless found that setting bond in the amount of one billion dol lars per case constituted an abus e 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 mon itoring and surrender of a passport specifically warrant a lowered bail amount. Id. at 501.25 oppression. Ex parte Henson , 131 S.W.3d 645, citing Ex parte Ivey , 594 S.W.2d at 99. This is precisely what has occurred in this case; the Court of Appeals has sanctioned the trial court’s re fusal to lower bail not on the basis that a lower bail would be unlikely to secure Dixon’s appearan ce, but simply on the basis of the trial court’s possible evaluation of the case agai nst Dixon and determination that Dixon deserves to be in prison. This makes the bail set in this case punitive in nature, and implies that it has been set deliberately beyond the ability of Dr. Dixon and his combined immediate family to satisfy. This is the definition of oppression, and this Court should reverse the departure of the Court of Appeals from the accepted and usual course of judicial proceedings. Furthermore, even assuming, arguendo , that the money which Dixon’s family has spent on his defens e was available to him at the outset of this case, bail in this case has been set so high for the duration of this case as to force Dr. Dixon to have to choose between which Constitutional right is more important to him: the right to release on reasonable bail ve rsus the right to mount a defense via retention of effective counsel. There appear to be no cases dealing with this issue, but it is troubling that the State has cons istently argued that Dr. Dixon’s choice to expend his previously-availa ble resources on effective counsel should be held against him. The State thus implicitly a sserts that because the resources expended might have been able to secure his release before his first trial, that the trial court is26 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 insistin g on due process of law with effective assistance of counsel to the detriment of pr etrial release), and itself falls within the ambit of what the Framers would certa inly regard as “oppression.”27 CONCLUSION AND PRAYER For the foregoing reasons, Appellant Thomas Michael Dixon respectfully submits that the trial court erred by refusing to reduce the amount of his bail pending a second trial for capital murder, a nd that the Court of Appeals further erred by sanctioning the trial court’s error, in contrave ntion of relevant precedent of this Court and other courts of appeal s. Appellant further submits that these departures and conflicts warra nt this Court exercising its power of supervision, and that on consideration of the Article 17.15 factors as well as general factors for consideration in bail reduction cases, this Court should reverse the judgment of the Court of Appeals, find that the trial cour t abused its discretion, and should render judgment setting bail in the amount of $100,000.00, subject to such terms and
conditions as the Court deem s appropriate, or for such other relief as Appellant may be entitled. Respectfully submitted, HURLEY, GUINN & SELLERS 1805 13 th 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.net28 CERTIFICATE OF SERVICE This is to certify that a true and co rrect copy of the above and foregoing brief was served on opposing counsel via email to th e Lauren Murphree, Lubbock County District Attorney’s Office, lmurphree@lubbockcda.com, on this the 18 th day of June, 2015, and via email to th e 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 complie s with Tex.R.App.P. 9.4(i) inasmuch as according to the word count functi on of Microsoft Word 2003, this brief contains 5,618 words exclusive of the matters listed in that Rule, and that this is a computer-generated document using 14-point or larger typeface for all text except footnotes, which are in 12-point typeface. /s/ Aaron R. Clements AARON R. CLEMENTS