Opinion
WR-56,822-02
06-21-2023
EX PARTE TONY TYRONE DIXON, Applicant
Do Not Publish
ON APPLICATION FOR WRIT OF HABEAS CORPUS IN CAUSE NO. 9427863 IN THE 179TH CRIMINAL DISTRICT COURT HARRIS COUNTY
Keller, P.J., filed a dissenting opinion in which Slaughter, J., joined. Yeary, J., filed a dissenting opinion.
ORDER
PER CURIAM.
We have before us a postconviction application for a writ of habeas corpus filed pursuant to Texas Code of Criminal Procedure Article 11.071.
Unless otherwise indicated, all mentions of Articles in this order refer to the Texas Code of Criminal Procedure.
Ex parte Reed, 271 S.W.3d 698, 727 (Tex. Crim. App. 2008) ("For over forty years, our writ jurisprudence has consistently recognized that HN3 this Court is the ultimate factfinder in habeas corpus proceedings. . . . [I]n most circumstances, we will defer to and accept a trial judge's findings of fact and conclusions of law when they are supported by the record.") (emphasis added).
Applicant's subsequent writ application (-01) arrived first in this Court and was designated -01. His initial writ application arrived at this Court much later and was designated -02.
In February 1995, a Harris County jury found Applicant guilty of capital murder. Based on the jury's answers to the special issues set forth in Article 37.071, the trial court sentenced Applicant to death. This Court affirmed Applicant's conviction and sentence on direct appeal. Dixon v. State, No. AP-72,100 (Tex. Crim. App. Nov. 5, 1997) (not designated for publication).
Applicant filed his initial (-02) 11.071 application, the subject of this order, in August 1998. He filed his first subsequent (-01) 11.071 application in June 2003, raising only an Atkins claim. See Atkins v. Virginia, 536 U.S. 304 (2002) (holding that the Eighth Amendment prohibits the execution of intellectually disabled offenders). This Court ultimately dismissed Applicant's -01 application as moot because, in June 2005, in the wake of the Supreme Court's decision in Roper v. Simmons, 543 U.S. 551 (2005) (holding that the Eighth Amendment prohibits the execution of offenders who were under eighteen when they committed their crimes), Governor Rick Perry commuted Applicant's death sentence to a sentence of imprisonment for life.
Applicant was seventeen years old when he committed the underlying capital murder.
Cf. Guzman v. State, 955 S.W.2d 85, 87 (Tex. Crim. App. 1997) (on the issue of whether an officer has probable cause, which is reviewed de novo, "the trial judge is not in an appreciably better position than the reviewing court to make that determination.")
As a result of Governor Perry's commutation order, Applicant is no longer on death row. The State did not answer Applicant's -02 application until August 2014, and this Court did not receive it until August 2022. Applicant's -02 application raises eleven claims for postconviction relief:
Claim (A) Article 11.071, Texas Code of Criminal Procedure has been applied unconstitutionally against Applicant by denying him the opportunity to fully and fairly litigate claims for relief because Applicant has been denied funding for a psychologist whose assistance is necessary to develop Applicant's claim of mental incompetency.
Claim (B) Article 11.071, Texas Code of Criminal Procedure has been applied unconstitutionally in violation of the 6th and 14th Amendment[s] to the United
States Constitution … by denying [Applicant] an impartial tribunal in the Court of Criminal Appeals.
Claim (C) Applicant's death sentence violates the Eighth and Fourteenth Amendments to the United States Constitution because the Texas death penalty statute as applied fails to provide adequate consideration of the maturity and moral responsibility of seventeen-year-old capital defendants.
Claim (D) Applicant's death sentence violates international treaties to which the United States is a signatory and established norms of international law which prohibit the imposition of the death penalty on offenders under eighteen years old at the time of the offense.
Claim (E) Applicant's [E-1] conviction and [E-2] death sentence violate the Due Process Clause of the 14th Amendment to the United States Constitution because Applicant was incompetent to stand trial.
Claim (F) Applicant's conviction and death sentence violate the Due Process Clause of the 5th and 14th Amendment[s] to the United States Constitution because Applicant is incompetent to meaningfully participate or assist counsel in seeking relief under this application for post-conviction writ of habeas corpus.
Claim (G) Applicant's execution will violate the prohibition against cruel and unusual punishment under the 8th Amendment to the United States Constitution because Applicant is incompetent to be executed.
Claim (H) The infliction of Applicant's death sentence violates the common law prohibition against executing those persons who are mentally incompetent.
Claim (I) Applicant has been denied his right to the effective assistance of counsel at trial in violation of [the] 6th and 14th Amendment[s] to the United States Constitution by trial counsel's failure to call witness[es] who could have impeached State's witness Theopolos Dixon regarding his absence of prior intent to steal cars.
Claim (J) Applicant has been denied his right to due process of law under the 14th Amendment to the United States Constitution by the State's failure to correct materially false testimony by rebuttal witness Elgin McCloud.
Claim (K) Applicant has been denied his right to due process of law under the 14th Amendment to the United States Constitution by the State's presentation of possible perjured testimony by rebuttal witness Frank Robinson.
Claims (A) and (B), which challenge the constitutionality of Article 11.071, are not cognizable on habeas. See Ex parte Kerr, 64 S.W.3d 414, 419 (Tex. Crim. App. 2002). Claim (F), in which Applicant alleges that he is incompetent to "meaningfully participate or assist counsel in seeking [postconviction] relief," is similarly non-cognizable. See id.; see also Ex parte Mines, 26 S.W.3d 910 (Tex. Crim. App. 2000). Claims (A), (B), and (F) do not present cognizable issues and shall not be developed on remand.
Claims (C), (D), (G), and (H) only challenge the lawfulness of Applicant's death sentence. Governor Perry's commutation order, supra p. 2, rendered those claims moot. Accordingly, those claims shall not be developed on remand.
Regarding claim (I), in which Applicant asserts that he received ineffective assistance from his trial lawyers, even if Applicant's trial lawyers performed deficiently with respect to their impeachment of State's witness Theopolos Dixon, Applicant cannot show that a more effective impeachment would have led to a reasonable probability of a different outcome. See Strickland v. Washington, 466 U.S. 668, 694 (1984). In other words, Applicant cannot show prejudice. Id. Therefore, Applicant has not alleged facts that, if proven true, might entitle him to relief. Ex parte Gonzalez, 790 S.W.2d 646, 648 (Tex. Crim. App. 1990). Claim (I) lacks potential merit and shall not be developed on remand.
Regarding claim (J), in which Applicant alleges that State's witness Elgin McCloud undersold his probationary status at trial, Applicant cannot show a reasonable likelihood that any misrepresentation on McCloud's part affected the trial's outcome. See Ex parte Ghahremani, 332 S.W.3d 470, 478 (Tex. Crim. App. 2011). In other words, Applicant cannot show that McCloud's probationary status was a material fact in the context of his trial. See id. Therefore, Applicant has not alleged facts that, if proven true, might entitle him to relief. Gonzalez, 790 S.W.2d at 648. Claim (J) lacks potential merit and shall not be developed on remand.
Regarding claim (K), in which Applicant alleges that State's witness Frank Robinson "possibl[y]" perjured himself at trial, Applicant has not come forward with sufficient credible evidence to make a prima facie showing that Robinson's trial testimony was, in fact, false. Cf. Ukwuachu v. State, 613 S.W.3d 149, 156 (Tex. Crim. App. 2020). Further, Applicant cannot show a reasonable likelihood that Robinson's testimony affected the trial's outcome-in other words, Applicant cannot show that Robinson's testimony was material. Ghahremani, 332 S.W.3d at 478. Therefore, Applicant has not alleged facts that, if proven true, might entitle him to relief. Gonzalez, 790 S.W.2d at 648. Claim (K) lacks potential merit and shall not be developed on remand.
That brings us to claim (E), in which Applicant asserts that he was incompetent to stand trial. See Pate v. Robinson, 383 U.S. 375 (1966). The portion of claim (E) implicating Applicant's death sentence, which we shall refer to as claim (E-2), was rendered moot by Governor Perry's 2005 commutation order. Supra p. 2. For that reason, claim (E-2) shall not be developed on remand.
However, the portion of claim (E) implicating Applicant's capital murder conviction, which we shall refer to as claim (E-1), alleges facts that, if true, might entitle Applicant to relief. See Ex parte Yarborough, 607 S.W.2d 565, 566 (Tex. Crim. App. 1980) ("Although the issue of petitioner's competency to stand trial was not raised at time of trial, the issue is one which can be properly raised for the first time by a petition for writ of habeas corpus."). We remand this case to the convicting court and instruct that court to make findings of fact and conclusions of law pertinent to claim (E-1).
Preliminarily, within 60 days of the date of this order, the convicting court shall determine the feasibility of a retrospective competency determination, given the passage of time, availability of evidence, and any other relevant considerations. See Turner v. State, 422 S.W.3d 676, 696 (Tex. Crim. App. 2013). If the convicting court determines that a retrospective competency hearing is not feasible, it shall make findings of fact and conclusions of law documenting that determination. The district clerk shall then immediately forward to this Court the convicting court's findings and conclusions and the record developed on remand. See Art. 11.071, § 8(d).
If the convicting court determines that a retrospective competency determination is feasible, it shall proceed to develop, within 120 days of the date of this order, all of the facts needed to properly dispose of Applicant's claim of incompetency, utilizing a live hearing if necessary. Whether or not the convicting court holds a live hearing, it shall ultimately make findings of fact and conclusions of law as to whether, at the time of his capital murder trial, Applicant was competent to stand trial. The district clerk shall then immediately forward to this Court the convicting court's findings and conclusions and the record developed on remand. See Art. 11.071, § 8(d); id. § 9(f).
Any extensions of time shall be requested by the convicting court and obtained from this Court.
IT IS SO ORDERED.
Keller, P.J., filed a dissenting opinion in which Slaughter, J., joined.
DISSENTING OPINION
Two attorneys filed this habeas application for Applicant in 1998. The application was forwarded to our Court in 2022. Neither attorney made any attempt during this 24-year period to have the application forwarded to us sooner. Given the passage of time and other factors, Applicant's claim that he was incompetent to stand trial due to permanent intellectual disability is wholly lacking in credibility and cannot be substantiated. There is no point in remanding this claim that is so obviously without merit. We should simply deny relief.
Applicant's claim on habeas was that he was incompetent to stand trial because he was intellectually disabled. If credited, this claim would essentially make him forever incompetent to stand trial. Applicant's habeas attorneys supported the claim with an affidavit from one of his trial attorneys (Dick Wheelan) and from an expert witness (Dr. Ann Wheeler). For a number of reasons detailed below, including the 24-year passage of time, these affidavits are unpersuasive. There is also a great deal of controverting evidence that both undercuts Applicant's supporting evidence and affirmatively indicates that he was in fact competent to stand trial. This includes the devastating affidavit filed by Applicant's other trial attorney (Wayne Hill) and the opinions of four experts who evaluated Applicant at or around the time of trial and found him to be competent (Dr. Fred Fason, Dr. Jerome Brown, Dr. Mark Lehman, and Dr. Edward Silverman).
In his affidavit in 1994, trial attorney Dick Wheelan claimed that, due to intellectual shortcomings, Applicant was unable to communicate with counsel in any meaningful manner, could not follow the events at trial, could not help with his own defense, and "shut down" as a result. A serious problem created by the passage of time is that Wheelan has died. He cannot be brought to a live hearing to testify, he cannot be cross-examined, and his demeanor cannot be observed. Wheelan's unavailability is especially significant because Applicant's other trial attorney, Wayne Hill, contradicts Wheelan's claims.
In his 2015 affidavit, Hill acknowledged that Applicant had an intellectual disability but nevertheless maintained that he was able to communicate with Applicant and that Applicant understood the proceedings:
While meetings with Mr. Dixon were difficult due to his impaired mental state, I was able to communicate with him in a manner that allowed me to understand him. Likewise, at the time of my representation of Mr. Dixon I believe he understood me and the circumstances of the proceedings against him. . . . [W]hen I met with Mr. Dixon . . . I was able to obtain information necessary to understand what had taken
place. . . . Clearly, Mr. Dixon did not possess the level of intellectual functioning of his age group, but he was able to discuss the facts of the case and comprehend the consequences of the proceedings he faced-even if expressed in simple terms.
Hill further explained that he and Wheelan discussed the "incompetency issue" and recognized, based on testing from four experts finding Applicant to be competent, that incompetency to stand trial "was not a sustainable issue." Hill also said that Wheelan never indicated that he felt Applicant was incompetent to stand trial. And the record shows that neither attorney raised the issue of competency to the trial court.
In her 1994 affidavit, Dr. Ann Wheeler said it was her professional opinion that Applicant's intellectual disability "would have rendered it impossible" for him "to meaningfully understand what was occurring at trial or to assist his attorneys." She based this opinion on a two hour interview she had with Applicant, and she acknowledged that she did not observe him in the courtroom except during her own testimony. In his affidavit, Hill explained that Dr. Wheeler testified in support of an insanity defense. Hill further explained that he retained Dr. Richard Austin to assist him and that Dr. Wheeler assisted Dr. Austin during the process of evaluating Applicant. Hill also explained that neither Dr. Austin nor Dr. Wheeler expressed any concerns to him about Applicant's competency to stand trial. And as far as Hill knew, Dr. Wheeler did not express any such concerns to co-counsel Wheelan.
In contrast to Dr. Wheeler, who did not express a competency opinion during trial proceedings, four experts did express an opinion about Applicant's competency at the time-and all of them found Applicant to be competent. Applicant's writ acknowledges the opinions of Dr. Brown and Dr. Silverman, but Hill's affidavit also discusses two other experts, Dr. Fason and Dr. Lehman, who also found Applicant to be competent. Dr. Lehman, at least, was a defense expert: Hill said that he obtained a court order to allow Dr. Lehman to examine Applicant. When asked, after expressing his opinion that Applicant was competent, whether trial counsel should get a second opinion, Dr. Lehman indicated that there was no real reason to do so, saying, "Being candid, I don't see incompetency or insanity."
We should also consider the fact that Applicant's habeas attorneys made no effort to bring the incompetency claim before us since it was filed in 1998. They could have filed a mandamus action seeking to have the record forwarded to this Court but did not do so. They could have sought to compel the trial court to make findings of fact but did not do so. Applicant's initial death sentence might have created some incentive to allow proceedings to be delayed to prolong Applicant's life, but any such incentive disappeared when Governor Perry commuted the sentence to life in 2005. Yet the habeas attorneys made no effort to get the record forwarded, or to get findings of fact, in the 17 years that followed. And despite the initial death sentence, if the habeas attorneys had truly believed that they had a winning argument in the competency claim, they would have tried to get a speedy resolution of that claim. Twenty-four years of silence supports a conclusion that Applicant's own habeas attorneys did not find his claim to be particularly compelling.
To summarize, neither of Applicant's witnesses expressed any concerns about Applicant's competency at the time of trial, and four experts found Applicant to be competent at that time. The trial attorney supporting Applicant's position has died, and his co-counsel disagrees and details compelling reasons to think Applicant was competent. And Applicant's habeas attorneys have not acted with any urgency on this matter, letting it linger for 24 years. It is highly unlikely that the convicting court on remand would believe Applicant's evidence in support of incompetency over the evidence supporting competency.
We should not remand for the unlikely possibility of the convicting court finding in Applicant's favor because, even if that were to happen, such a finding would deserve to be disregarded. As the ultimate factfinder in an Article 11.071 habeas action, we are not completely bound by the convicting court's view of things, even on matters of credibility.1 It should take extraordinary circumstances to disregard a convicting court's credibility determination, but such circumstances are present here. If we look solely at the evidence currently before us, it is all documentary. We are in as good a position as the trial court to assess the credibility of this information.2 Even so, we ordinarily defer even to a trial court's resolution of disputed factual issues based solely on documentary evidence because we recognize that trial courts have "expertise" in evaluating issues of fact. But this is not an ordinary case.
Manzi v. State, 88 S.W.3d 240, 243-44 (Tex. Crim. App. 2002).
In some types of habeas cases, we have required a live hearing to develop the record before making the important decision on whether to grant relief. Had the competency claim been forwarded to us in a timely fashion, a live hearing would have been appropriate to allow the parties to question Attorney Wheelan and Dr. Wheeler regarding their opinions about Applicant's competency and on why they did not raise their opinions earlier, in time to present them before trial proceedings had concluded. But Wheelan has died and cannot be called at a live hearing. And even if Dr. Wheeler can be produced, 24 years is a long time for her memory to dim, especially given her brief involvement in evaluating Applicant, calling into doubt any further response she could make. The memories of the four experts who found Applicant to be competent would also have dimmed, which would likely make them rely solely on their reports to testify.
See Ex parte Tiede, 448 S.W.3d 456, 470 (Tex. Crim. App. 2014) (discussing this Court's treatment of actual innocence claims in sex-offense cases involving recantations).
And the documentary evidence here is lopsided in the State's favor, both in quantity and quality. Four experts found Applicant competent as opposed to one on Applicant's side. Those four experts were charged with evaluating the issue of competency, unlike Applicant's expert, who appears to have been solely concerned with the issue of sanity. Moreover, those four experts expressed their opinions before Applicant's trial, while Applicant's expert never expressed qualms about competency, before or during the trial proceedings, even to defense counsel. And Hill's testimony that Applicant was competent is consistent with the fact that neither of Applicant's trial attorneys raised the issue of competency at trial, while Wheelan's testimony that Applicant was incompetent is not consistent with that fact.
The Court orders the habeas court to determine on remand whether a retrospective competency determination is feasible-something Applicant's habeas attorneys have not even requested. Such an assessment is almost certainly not feasible after the passage of 24 years. But even if it were feasible in the abstract, Applicant's competency to stand trial was already determined-by four different experts-before trial. A retrospective determination of incompetency by new experts after 24 years would be of questionable reliability and would not come even close to outweighing the at-the-time assessments made by the four experts who found Applicant to be competent.
We should not remand this claim. Instead, we should simply deny relief. I respectfully dissent.
Yeary, J., filed dissenting opinion.
The Court today remands Applicant's postconviction application for a writ of habeas corpus, filed pursuant to Article 11.071 of the Texas Code of Criminal Procedure, instructing the convicting court to make findings of fact and conclusions of law pertinent to one particular claim. Tex. Code Crim. Proc. art. 11.071. In that claim, Applicant asserts that his conviction violated the Due Process Clause of the Fourteenth Amendment to the United States Constitution because he was incompetent to stand trial. Applicant, however, has a felony judgment imposing a penalty other than death. U.S. Const. amend. XIV, § 1. Therefore, at this point there is no writ application to remand, because Applicant's Article 11.071 writ application is moot. In my view, a new writ application must be filed pursuant to Article 11.07. Tex. Code Crim. Proc. art. 11.07. Because the Court does not dismiss the present writ application so that Applicant can refile under Article 11.07, I respectfully dissent.
Applicant was convicted of capital murder and sentenced to death in 1995. He filed his initial (-02) Article 11.071 writ application,1 the subject of this order, in August of 1998. He later filed his first subsequent (-01) 11.071 writ application, in June of 2003, raising only an Atkins claim. See Atkins v. Virginia, 536 U.S. 304 (2002). This Court ultimately dismissed Applicant's (-01) writ application as moot because, in June of 2005, in the wake of the United States Supreme Court's decision in Roper v. Simmons, Governor Rick Perry commuted his death sentence to a sentence of life imprisonment. See 543 U.S. 551 (2005) (holding that the Eighth Amendment prohibits the execution of offenders who were under eighteen when they committed their offenses). Accordingly, Applicant is no longer subject to a sentence of death. The State did not answer Applicant's initial (-02) application until August of 2014, and this Court did not receive the (-02) application and the State's response to it until August of 2022.
Applicant filed his initial postconviction application for writ of habeas corpus under Article 11.071. Section 1 of that article provides:
Notwithstanding any other provision of [Chapter 11 of the Code of Criminal Procedure], this article establishes the procedures for an application for a writ of habeas corpus in which the applicant seeks relief from a judgment imposing a penalty of death.Tex. Code Crim. Proc. art. 11.071, § 1 (emphasis added). Although Applicant's initial postconviction writ application sought relief from such a judgment when he filed it, Governor Perry's commutation of his death sentence to a sentence of life imprisonment means he no longer seeks relief from a judgment imposing a sentence of death. Even assuming his judgment may still seem on its face to impose a sentence of death, if it does, that sentence has necessarily been at least superseded by Governor Perry's commutation. Consequently, to the degree his initial application seeks relief from such a judgment, it is now moot. Whether it says so or not, Applicant's judgment no longer imposes a sentence of death. In my view, this Court lacks any vestigial authority to proceed with the writ application under the provisions of Article 11.071.
In Brownlow, the applicant was convicted of capital murder in 2016 and filed his brief on direct appeal in 2018. Ex parte Brownlow, 630 S.W.3d 61 (Tex. Crim. App. 2021) (Yeary, J., dissenting). Brownlow filed his original postconviction application for writ of habeas corpus under Article 11.071 in 2019. In 2020, this Court reversed the punishment phase of his trial on direct appeal and remanded his case to the trial court for a new punishment proceeding. Brownlow v. State, No. AP-77,068, 2020 WL 718026 (Tex. Crim. App. Feb. 12, 2020) (not designated for publication). Brownlow then filed a motion requesting that this Court dismiss his current Article 11.071 writ application without prejudice to file a new one should he again be sentenced to death. It was my view that we should have granted that motion precisely because Brownlow no longer had a judgment that imposed a penalty of death. Furthermore, the Court may not entertain a postconviction application for writ of habeas corpus pursuant to Article 11.07 until a judgment of conviction for a felony is final-Brownlow had not yet been resentenced. Consequently, we could not have known which provision would have controlled the postconviction habeas corpus proceedings, Article 11.07 or Article 11.071.
Therefore, it was my position in Brownlow that this Court lacked authority to grant the applicant relief pursuant to either Article 11.071 or Article 11.07. See also Ex parte Petetan, 632 S.W.3d 538, 538 (Tex. Crim. App. 2021) (Yeary, J., dissenting) (arguing that this Court lacked authority to grant the applicant relief pursuant to Article 11.07 or Article 11.071 because the Court vacated the applicant's death sentence on direct appeal, based on punishment-phase error, and remanded the cause to the trial court for another punishment hearing). Similarly, this Court in the present case also lacks authority to grant Applicant relief pursuant to Article 11.071 because he also no longer has a judgment imposing a penalty of death. Because he was convicted of capital murder, and because Governor Perry commuted his sentence to life imprisonment, Applicant's sentence is a life sentence as a matter of law.
Of course, this case is not exactly like Brownlow or Petetan, since this Court does presently have authority to consider a writ application from Applicant brought pursuant to Article 11.07. In Brownlow and Petetan, the Court could not proceed pursuant to Article 11.07 because the applicants had not yet received a sentence in a felony case at all. Here, by contrast, when Governor Perry commuted Applicant's death penalty to life imprisonment, this effectively changed his judgment from one "imposing a penalty of death" (Article 11.071, § 1) to one "imposing a penalty other than death." (Article 11.07, § 1). Thus, this case is ripe for review, but it must be refiled pursuant to Article 11.07, not Article 11.071.
The right thing for this Court to do is first dismiss Applicant's writ application. Then, Applicant could immediately file a new writ application pursuant to Article 11.07, being sure to utilize the form required by Rule 73.1(a) of the Texas Rules of Appellate Procedure. See Tex. R. App. P. 73.1(a) ("An application for postconviction habeas corpus relief in a felony case without a death penalty, under Code of Criminal Procedure article 11.07, must be made in the form prescribed by the Court of Criminal Appeals in an order entered for that purpose.") Because the Court instead remands a moot application, I respectfully dissent.