Dixon, William Michael

PD-1013-15 PD-1013-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 8/6/2015 9:04:26 AM Accepted 8/11/2015 11:32:54 AM ABEL ACOSTA NO. _____________ PD CLERK IN THE COURT OF CRIMINAL APPEALS OF TEXAS ___________________________________________ WILLIAM MICHAEL DIXON Petitioner, VS. THE STATE OF TEXAS Respondent _________________________________________________________ Petition in Cause No. 1383453 from the TH 208 District Court of Liberty County, Texas and the Court of Appeals for the 14TH District of Texas _________________________________________________________ PETITION FOR DISCRETIONARY REVIEW _________________________________________________________ DAVID RUSHING 723 MAIN STREET SUITE 816 HOUSTON, TEXAS 77002 (713) 877-1300 davidcrushing@hotmail.com SBOT NO. 24051276 August 11, 2015 ATTORNEY FOR PETITIONER IDENTITIES OF PARTIES AND COUNSEL PETITIONER: WILLIAM MICHAEL DIXON PRESIDING JUDGE: HON. WAYNE MALLIA 208th District Court Harris County Courthouse 1201 Franklin, 17th Floor Houston, Texas 77002 (713) 755-6374 PROSECUTORS: MR. JOHN CRUMP MR. DAVID OVERHULS HARRIS COUNTY DISTRICT ATTORNEYS OFFICE 1201 FRANKLIN HOUSTON, TEXAS 77002 (713) 755-5800 TRIAL COUNSEL: MR. DAVID RUSHING 723 MAIN STREET SUITE 816 Houston, Texas 77002 (713) 877-1300 APPELLATE COUNSEL: MR. DAVID RUSHING 723 MAIN STREET SUITE 816 HOUSTON, TEXAS 77002 (713) 877-1300 MR. TOM ABBATE 2425 WEST LOOP SOUTH, STE 200 HOUSTON, TX 77027 (832)-687-6447 APPELLEE COUNSEL: MS. JESSICA CAIRD HARRIS COUNTY DISTRICT ATTORNEYS OFFICE 1201 FRANKLIN HOUSTON, TEXAS 77002 (713) 755-5800 2 TABLE OF CONTENTS IDENTITIES OF PARTIES AND COUNSEL .........................................................2 INDEX OF AUTHORITIES......................................................................................4 STATEMENT REGARDING ORAL ARGUMENT ...............................................6 STATEMENT OF THE CASE ..................................................................................6 STATEMENT OF PROCEDURAL HISTORY........................................................7 QUESTION PRESENTED FOR REVIEW I ............................................................7 REASON FOR REVIEW ..........................................................................................7 QUESTION PRESENTED FOR REVIEW II .........................................................10 REASON FOR REVIEW ........................................................................................10 PRAYER FOR RELIEF ..........................................................................................12 CERTIFICATE OF SERVICE ................................................................................12 CERTIFICATE OF COMPLIANCE .......................................................................13 APPENDIX ..............................................................................................................14 3 INDEX OF AUTHORITIES Cases Balentine v. State, 71 S.W.3d 763 (Tex. Crim. App. 2002) ......................................8 Curry v. State, 30 S.W.3d 394 (Tex.Crim.App.2000) .............................................11 Dixon v. State, 14-14-00510-CR (Tex.App.-Houston [14th District] 2015) ...........10 Dowthitt v. State, 931 S.W.2d 244 (Tex. Crim. App. 1996)......................................9 Lancon v. State, 253 S.W.3d 699 (Tex. Crim. App. 2008)......................................11 Miranda v. Arizona, 384 U.S. 436 (1966) .................................................................7 Rhodes v. State, 945 S.W.2d 115 (Tex. Crim. App. 1997) ........................................9 Stansbury v. California, 511 U.S. 318 (1994) ...........................................................9 Thompson v. Keohane, 516 U.S. 99 (1995) ...............................................................9 Williams v. State, 235 S.W.3d 742 (Tex. Crim. App. 2007) ...................................11 Statutes Tex. Code Crim. Proc. Ann. art. 38.22 ......................................................................7 4 NO. _____________ PD IN THE COURT OF CRIMINAL APPEALS OF TEXAS ___________________________________________ WILLIAM MICHAEL DIXON Petitioner, VS. THE STATE OF TEXAS Respondent _________________________________________________________ Petition in Cause No. 1383453 from the TH 208 District Court of Liberty County, Texas and the Court of Appeals for the 14TH District of Texas __________________________________________________________ PETITION OF DISCRETIONARY REIVEW TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS OF TEXAS William Dixon, petitions the Court to review the judgment affirming his conviction for driving while intoxicated, 3rd offender in Cause No. 1383453 5 STATEMENT REGARDING ORAL ARGUMENT Oral argument would assist the Court to resolve whether the confession was obtained in violation of the Fourth Amendment, and whether the evidence was legally sufficient to support the conviction obtained against the Petitioner in this case. STATEMENT OF THE CASE This is an appeal from the Trial Court’s JUDGMENT OF CONVICTION BY JURY finding WILLIAM MICHAEL DIXON (hereinafter, “Petitioner,”), GUILTY of the charge of DRIVING WHILE INTOXICATED 3RD OFFENDER and sentencing him to 40 YEARS TDCJ in Cause No. 1383453. (CLRK. REC. - 82). On June 7, 2013, a grand jury indicted Petitioner for the above felony offense. (CLRK. REC. – 10). On June 18, 2014, a jury was seated and sworn for trial in the above described cause number. (CLRK. REC. – 63). On June 20, 2014, after hearing testimony from the State and Defense, the jury was excused to deliberate. (CLRK. REC. – 70). That same day, the jury returned a verdict of GUILTY. (CLRK. REC. – 78). Later that day, after hearing testimony from the State and the Defense, the trial judge sentenced Petitioner to 40 YEARS. (CLRK. REC. – 82). Petitioner filed a NOTICE OF APPEAL on June 20, 2014. (CLRK. REC. – 87). 6 STATEMENT OF PROCEDURAL HISTORY The court of appeals rendered its decision affirming the petitioner’s conviction on July 7, 2015. The Petitioner did not file a motion for rehearing. This petition was then filed with the clerk of the court of appeals within 30 days after the ruling. QUESTION PRESENTED FOR REVIEW I Did the trial court err in denying Petitioner’s Motion to Suppress his recorded confession? REASON FOR REVIEW Petitioner asserts that the trial court erred in denying his motion to suppress statements he made to Martinez because Martinez interrogated him without providing him the benefits of warnings set out in Miranda and the warnings required by Article 38.22 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 38.22; Miranda v. Arizona, 384 U.S. 436, 442–57 (1966). It is undisputed that Petitioner had not received any Miranda warnings or statutory warnings when he made the statements in question. Petitioner's statements to Martinez were made in response to questioning by Martinez. Therefore, this court must decide whether Petitioner was in custody when he made the statements. Martinez stated that he “detained” Petitioner at the scene by handcuffing him and placing him in the back seat of the officer’s vehicle, but did not inform Petitioner that he was under arrest, did not Mirandize him, and testified that Petitioner was not 7 free to leave. (RR.VI – 54, 57). Martinez further testified that he had already formed the opinion that the Petitioner was intoxicated prior to speaking with him again. (RR.VI – 59). After finishing his investigation, Martinez transported Petitioner to the Humble substation to “conduct the field sobriety tests in a more controlled environment.” (RR.VI – 62). Martinez further stated that he remembered the Petitioner asking him if he, the Petitioner, was going to jail, to which Martinez replied that he was not sure. (RR.VI – 84). Martinez stated that although he recalled Petitioner repeatedly stating that he was not driving during the trip to the substation, this occurred after Petitioner had already admitted to driving in response to Martinez’s questions. (RR.VI – 82). Petitioner asserted that Martinez did not Mirandize him prior to this questioning. (RR.II – 4). Martinez further testified that Petitioner asked him why he was being transported to the substation, however, Martinez could not recall whether he had answered the question. (RR.VI – 83). Applying the pertinent legal standards to the case under review, the trial court erred in denying Petitioner's motion to suppress these statements. The placing of handcuffs on a defendant does not, in and of itself, automatically mean he is in custody. See Balentine v. State, 71 S.W.3d 763, 771 (Tex. Crim. App. 2002); Rhodes v. State, 945 S.W.2d 115, 117–18 (Tex. Crim. App. 1997). However, "the ultimate inquiry is simply whether there [was] a formal arrest or restraint on freedom of 8 movement of the degree associated with a formal arrest." Stansbury v. California, 511 U.S. 318, 322 (1994). The objective circumstances of the interrogation indicate that a reasonable person would have felt that they were not at liberty to terminate the interrogation and leave. Id. at 323; Thompson v. Keohane, 516 U.S. 99, 112 (1995). Further, under the test outlined in Dowthitt, at least three of the four situations are present: 1) Petitioner was physically deprived of his freedom of action by being handcuffed and placed in the back of the officer’s vehicle; 2) under such circumstances, most people would not feel free to leave as they could not open the door and walk out of the officer’s vehicle; 3) there was probable cause to arrest the Petitioner, but Martinez did not inform him that he was free to leave. Dowthitt v. State, 931 S.W.2d 244, 255 (Tex. Crim. App. 1996). Further, the final situation requires the officers' knowledge of probable cause be manifested to the suspect. Id. Here, when asked Petitioner asked whether he was going to jail, the officer stated that he was not sure. (RR.VI – 84). However, Martinez stated that the uncertainty revolved around whether Petitioner was going to jail for DWI or public intoxication, and not whether he was going to be released. (RR.IV – 84). The Court of Appeals, however, stated that the short distance the officer transported the Petitioner, prior to transporting him to the substation, would not have led a reasonable person to believe that their freedom of movement had been constrained to the level of a formal arrest. Dixon v. State, 14-14-00510-CR 9 (Tex.App.-Houston [14th District] July 7, 2015). However, this ignores the fact that the Petitioner sat, handcuffed, in the back of the patrol car for nearly an hour in total. Dixon, 14-14-00510-CR. Most reasonable people would not feel that they are free to leave after they have been restrained for half as much time in the back of a patrol vehicle. Therefore, both the trial court and the court of appeals erred in holding that Petitioner was not under arrest during the questioning. QUESTION PRESENTED FOR REVIEW II Was the evidence in this case legally insufficient to convict Petitioner of the charge Driving While Intoxicated? REASON FOR REVIEW The evidence in this case was legally insufficient to convict Petitioner of the charge of Driving While Intoxicated as there is no evidence that Petitioner was actually driving the vehicle at the time of the accident. Castaneda testified that, after the accident, she saw Petitioner exiting from the driver’s side of the vehicle. (RR.VI – 12). She did not see anyone else exit the vehicle. (RR.VI – 18). However, Castaneda also stated that she was not asked if Petitioner was the driver by the officers at the scene. (RR.VI – 21). Further, Castaneda testified that during a later photo lineup, she was not sure whether the photo she picked was that of the Petitioner. (RR.VI – 22). Finally, Ruzzi testified that Castaneda indicated that she wrote “[p]ossible man I saw getting out of a car,” next to the Petitioner’s photo during the lineup. (RR.VI – 43). Further, Martinez stated that he had already placed 10 Petitioner in the back of his vehicle before Castaneda identified him as the driver. (RR.VI – 77). Martinez further testified that the pickup truck was partially blocking Castaneda’s view when she made her identification. (RR.VI – 80). Finally, Petitioner presented evidence showing that he indeed was not the driver during the accident. During the voir dire of the defense’s first witness, Keeton asserted his Fifth Amendment privilege when asked whether he was driving the vehicle that night. (RR.VI – 90). Before the jury, Keeton stated that the passenger’s side door did not open. (RR.VI – 97). Defense counsel also presented the testimony of Coronado, who stated that Keeton had in fact been driving that night, and that not all of the doors on the vehicle worked (RR.VI – 104). Normally, a court must afford almost complete deference to the jury’s credibility determinations, and may not re-evaluate the weight and credibility of the evidence or substitute its judgment for that of the fact finder, as any inconsistencies are resolved in favor of the verdict. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007); Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008); Curry v. State, 30 S.W.3d 394, 406 (Tex.Crim.App.2000). However, this case bears further consideration due to the admission of illegally obtained evidence. Therefore, court of appeals’ ruling on this matter was incorrect because of its erroneous decision regarding the motion to suppress. 11 PRAYER FOR RELIEF ACCORDINGLY, this Court should GRANT this PETITION FOR DISCRETIONARY REVIEW and ORDER briefs on the merits to answer the question of whether the evidence against the Petitioner was legally sufficient to support his conviction. Petitioner further prays for all relief to which he may be entitled. Respectfully submitted, __________________________ DAVID RUSHING 723 MAIN STREET SUITE 816 HOUSTON, TEXAS 77002 (713) 877-1300 davidcrushing@hotmail.com SBOT NO. 24051276 ATTORNEY FOR PETITIONER CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing PETITION FOR DISCRETIONARY REVIEW was delivered to the HARRIS County District Attorney’s Office by hand delivery on August 6, 2015. __________________________ DAVID RUSHING 12 CERTIFICATE OF COMPLIANCE I hereby certify that there are 2,000 words contained in this document. __________________________ DAVID RUSHING 13 APPENDIX 14 15 16 17 18 19 20 21 22 23