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
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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
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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
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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
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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).
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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
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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
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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
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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.
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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
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CERTIFICATE OF COMPLIANCE
I hereby certify that there are 2,000 words contained in this document.
__________________________
DAVID RUSHING
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APPENDIX
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