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Dixon v. State

Court of Criminal Appeals of Texas

January 15, 2020

THOMAS DIXON, Appellant
v.
THE STATE OF TEXAS

          ON STATE'S PETITION FOR DISCRETIONARY REVIEW FROM THE SEVENTH COURT OF APPEALS LUBBOCK COUNTY

          OPINION

          Keller, P.J.

         The Court of Appeals reversed Appellant's conviction for two reasons: (1) because cell phone location information was improperly admitted, and (2) because the trial court deprived him of a public trial. Neither of these reasons appears to stand up to close scrutiny. In this murder-for-hire prosecution, Appellant's whereabouts on a date other than the date of the murder were not particularly important to the case, so any error in admitting the evidence was harmless. As for the public trial complaints, two were not preserved and the other has no merit. Consequently, we reverse the judgment of the court of appeals.

         I. Cell-Site Location Information (CSLI)

         A. The Investigation

         Appellant, Thomas Dixon, was a plastic surgeon in Amarillo. Joseph Sonnier was a physician in Lubbock. David Shepherd was a friend of Dixon's. On July 10, 2012, David Shepard killed Joseph Sonnier. The State's theory was that Dixon hired Shepard to kill Sonnier.

         The State introduced evidence that Sonnier was dating Dixon's former girlfriend and that Dixon wanted her back. Shepard's roommate testified that Shepard told him that Dixon paid him to kill Sonnier. The State also introduced fifty-five pages of cell phone records that showed numerous phone calls and text messages between Dixon and Shepard in the months leading up to the murder and on the day of the murder. These records also included cell-site location information.

         Fifty-one of those pages were from Shepard's cell phone provider. The admissibility of Shepard's phone records is not in dispute. From these records, the State showed that Dixon and Shepard exchanged hundreds of text messages in the months leading up to the murder and that at least some of the messages were about the victim. The day before the murder, Shepard texted, "Perfect day to travel to hub city" and Dixon responded, "Need it done ASAP." They exchanged forty-one text messages on the day of the murder. CSLI from Shepard's cell phone showed Shepard in Lubbock during times when he was communicating with Dixon. It also showed that Shepherd was in Lubbock on March 12, 2012.

         CSLI from Dixon's phone showed that he was in Lubbock on March 12, 2012. But the State did not obtain a warrant for the CSLI for Dixon's phone.[1] Dixon had claimed to the police that he was not in Lubbock on March 12, but at trial, he conceded that he must have traveled to Lubbock because the cell phone records showed him there. Also, a gas-station receipt showed that Dixon had bought gasoline in Plainview on March 12.

         Although Dixon had originally told the police that he knew nothing about Sonnier, he admitted at trial that this was untrue. Dixon testified that he had hired Shepard to track and photograph Sonnier (hoping to obtain photos that would cause Dixon's former girlfriend to break up with Sonnier) and that he understood that Shepard would be planting a camera at Sonnier's house for this purpose. Also, Shepard's phone records revealed that Dixon called Shepard within minutes after the police finished speaking to Dixon.

         B. Appeal

         Dixon claimed on appeal that the trial court erred in failing to suppress CSLI from his cell phone records. Relying on the Supreme Court's recent decision in Carpenter v. United States, [2] the court of appeals agreed.[3] The court of appeals further held that it could not conclude that the error was harmless beyond a reasonable doubt.[4]

         In support of its conclusion on harm, the court of appeals observed that the CSLI served two purposes: (1) as circumstantial evidence of Dixon's complicity in the murder (by showing that he and Shepard worked closely together) and (2) to impeach Dixon's testimony.[5] The court of appeals concluded that, "absent the CSLI, there was no evidence appellant ever was in Lubbock with Shepard for any purpose."[6] Although Dixon had purchased gas in Plainview on March 12, the court of appeals concluded that that evidence said nothing about Dixon's contact with Shepard.[7] The court of appeals further concluded that the CSLI evidence was in a form likely to have a strong impact on jurors.[8] And the court of appeals concluded that the CSLI formed a main pillar of support for the State's trial argument that Dixon could not be believed.[9] The court of appeals concluded that Dixon's credibility was important because the jury had to decide what his purpose was in working with Shepard-whether it was to kill the victim or for the alternative purpose offered in Dixon's testimony (to track the victim to dig up damaging information to share with the girlfriend).[10]

         C. Analysis: Any Error Was Harmless

         We conclude that the court of appeals erred in its harm analysis; even assuming the admission of the evidence was error, it was clearly harmless. The CSLI evidence showed that Dixon was in Lubbock on March 12, 2012, but that was not the day that the victim was killed. The victim was killed months later, on July 10. Because this was a murder-for-hire case, the evidence did not have to show that Dixon was in Lubbock at all, much less on a particular day. And in fact, the evidence showed that Dixon was not in Lubbock on the day of the murder. His presence in Lubbock on some other day months before, even coupled with Shepard's presence and their conversation, was not particularly important to this prosecution.

         Moreover, Dixon's own theory of the case was that he hired Shepard to track and photograph the victim. Dixon's presence in Lubbock to confer with Shepard would be entirely consistent with that purpose.

         Further, of the fifty-five pages of cell phone records introduced by the State, only four pages were from Dixon's cell-phone provider. The other fifty-one pages were records from Shepard's cellphone provider, the admission of which is not challenged here. Shepard's phone records provided plenty of evidence that Dixon and Shepard were working together. The March 12 CSLI information was not particularly significant in light of the evidence from Shepard's phone.

         As for the State's use of the CSLI to impeach Dixon's credibility, Dixon's credibility was also impeached by the evidence that he bought gas in Plainview on March 12. The shortest route from Amarillo to Lubbock goes straight through Plainview, so this evidence suggested that Dixon was traveling between Amarillo and Lubbock on March 12.[11] The State showed that Shepard was in Lubbock on that date by means of the location information from his phone records. This properly admitted evidence, which suggested that both men were in Lubbock on the same day, was a significant basis for the jury to disbelieve Dixon's testimony that he was not with Shepard in Lubbock. The CSLI from Dixon's phone provided a more specific link between Dixon and Shepard's locations, giving the jury an incrementally greater reason to doubt Dixon's testimony about whether he was with Shepard that day, but it was not conclusive-the location data could not rule out the possibility that the two just happened to be in the same general area.

         Moreover, there was other evidence that seriously undermined Dixon's credibility. Dixon admitted at trial that he had lied in an interview with the Lubbock Police. And one of his lies was central to the prosecution: Dixon said that he knew nothing about Sonnier. In fact, though, he testified at trial that he had hired Shepard to track Sonnier. And Shepard's phone records showed that Dixon called Shepard within minutes of the end of the police interview.

         In summary, Dixon's whereabouts on March 12, and any deception about those whereabouts, were not a significant pillar of the State's case. Far more important were Dixon's admitted hiring of Shepard to track the victim, the numerous phone contacts between the two, Dixon's hiding of this arrangement from the police, his later phone call to Shepard within minutes after contact with law enforcement, and Shepard's admission to his roommate that Dixon had hired him to kill the victim. The admission of the March 12 location evidence was harmless beyond a reasonable doubt.

         II. Public Trial

         A. Trial Proceedings: Exclusion of Some Persons from Courtroom

         1. Sketch Artist

         First, during jury selection, the bailiffs excluded a sketch artist from the courtroom. The bailiffs told the sketch artist that there was no room for him. When the trial court became aware of this, it allowed the sketch artist to sit in the jury box. The next day, Dixon complained about the exclusion. One of his attorneys claimed that the sketch artist "was sitting out in the hallway the entire time yesterday." The record does not reveal when counsel became aware of the situation.

         2. Hearing Outside Jury's Presence

         Second, the trial judge asked for the courtroom to be cleared of spectators after an argument erupted between the attorneys after the jury was released for the day. Before the jury was released, defense attorney Sellers asked a witness on cross-examination, "Here in this courtroom you know that David Shepard has repeatedly said, 'Mike Dixon did not pay me for this murder.'" Prosecutor Jackson, who had questioned the witness on direct examination, interjected, "Your Honor, may I take this witness on voir dire?" The trial court responded, "The Court is going to instruct the two of you not to talk about the question that was just asked." Defense attorney Hurley then stated, "I'm going to object that that violates our rights under the 5th Amendment to the United States Constitution and 105 of the Code of Criminal Procedure." Defense attorney Sellers then asked, "You're aware that as recently as two weeks ago David Shepard told Matt Powell [one of the prosecutors]-" but was interrupted by prosecutor Stanek, who objected to hearsay. The trial court sustained the objection, and Sellers passed the witness. Prosecutor Powell then said, "Judge, now it's out there we need to go into it now. I mean, Counsel - may we approach?" At this point the trial judge released the jury for the day.

         After the jury was released, the parties' attorneys began to argue with each other, as follows:

PROSECUTOR POWELL: I guess I need to do a Motion in Limine on everything when I rely on Counsel to follow Rules of Evidence. I obviously know I can't do that, because he purposefully put that - he knows that's an improper question. He knows he cannot get into that information, that it's hearsay without an exception, and he knows that. If he doesn't then he needs to go back and get a refresher course.

THE TRIAL COURT: Well, both of you -

DEFENSE ATTORNEY HURLEY: That's Brady -

DEFENSE ATTORNEY SELLERS: And you weren't going to turn it over.

         The trial court then responded, "Hey, y'all chill out. Everybody-if everybody would please excuse yourself from the courtroom except for the attorneys." Defense counsel then objected that "that's a violation of Presley v. Georgia."[12] The trial court responded, "From now on one person asking questions will be the one that makes objections. None of this all four people making any objections. Is that understood?" Mr. Hurley, responded that he understood the court's ruling but wanted to advise the court of a constitutional violation. The trial court responded, "Well you can advise Mr. Sellers, and he can make that objection." Mr. Hurley then stated that "sometimes it's not timely" and that he was going to continue to object to constitutional violations. The parties' attorneys then began discussing other matters, but at some point, Mr. Hurley returned to his objection: "I want to say for the record that the Court has excused about 50 people from the gallery, and they are not present for this conference, this discussion we're having. We object under the 6thAmendment, the 14th Amendment and right now it's basically all lawyers and staff from the D.A.'s office in the courtroom and all of the public has been excused." Two of the prosecutors then began discussing which people present were or were not from the prosecutor's office. The trial court then interrupted, "Well, there's going to be a $500.00 fine for everybody that makes some comment other than asking questions. These side-bar comments are going to stop, or you are going to start writing checks, every one of you. Anybody have any questions about this?" Mr. Hurley, Mr. Sellers, and one of the prosecutors replied, "No, sir." When asked if there was anything else to take up outside the presence of the jury, the parties initially responded that there was not, but the defense then engaged in a discussion with the trial court about a video statement. The defense did not further address the Presley objection, and the trial court did not rule on it.

         3. ...


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