Thomas Dixon v. State ( 2020 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-16-00058-CR
THOMAS DIXON, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 140th District Court
Lubbock County, Texas
Trial Court No. 2012-435,942, Honorable Jim Bob Darnell, Presiding
April 17, 2020
ORDER
Before QUINN, C.J., and PARKER and DOSS, JJ.
Two motions are before the Court: the State’s motion to revoke appellant Thomas
Dixon’s bail pending appeal, and appellant’s motion to stay mandate and our review of
his remaining appellate issues. At our invitation, both parties filed responses. We grant
the State’s motion to the extent it requests revocation of appellant’s bail and deny
appellant’s motion.
By way of background, we reversed appellant’s conviction for capital murder and
remanded the case for a new trial.1 On appellant’s motion, and following a response by
the State, we set appellant’s bail on appeal at $2,000,000.2 Thereafter, the State sought
discretionary review before the Texas Court of Criminal Appeals and its petition was
granted. Following briefing, the Court of Criminal Appeals reversed our judgment and
remanded appellant’s case to this Court for consideration of appellant’s remaining
issues.3 The Court of Criminal Appeals’ mandate issued April 2, 2020.
State’s Motion to Revoke Bail
By its motion, the State argues because its petition for discretionary review has
been finally determined by the Court of Criminal Appeals, appellant is no longer eligible
for bail on appeal. Appellant counters that a final determination of his appeal will not be
had until his petition for writ of certiorari is resolved by the Supreme Court of the United
States. Appellant also requests we conduct oral argument of the State’s motion.
A defendant sentenced to ten or more years’ confinement may not be released on
bail pending appeal of the conviction. TEX. CODE CRIM. PROC. ANN. art. 44.04(b) (West
2018). This provision precludes the possibility of bail for appellant because of the length
of his sentence. However, “[i]f a conviction is reversed by a decision of a court of appeals,
the defendant, if in custody, is entitled to release on reasonable bail, regardless of the
1 Dixon v. State, 566 S.W.3d 348 (Tex. App.—Amarillo 2018), rev’d, Dixon v. State, No. PD-0048-
19, 2020 Tex. Crim. App. LEXIS 2 (Tex. Crim. App. Jan. 15, 2020).
2 Dixon v. State, No. 07-16-00058-CR, 2019 Tex. App. LEXIS 360 (Tex. App.—Amarillo Jan. 16,
2019, per curiam order) (not designated for publication).
3 Dixon v. State, No. PD-0048-19, 2020 Tex. Crim. App. LEXIS 2 (Tex. Crim. App. Jan. 15, 2020).
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length of term of imprisonment, pending final determination of an appeal by the state or
the defendant on a motion for discretionary review.” TEX. CODE CRIM. PROC. ANN. art.
44.04(h). While article 44.04(h) authorized appellant’s release on bail during the
pendency of the State’s petition for discretionary review, once the Court of Criminal
Appeals’ mandate issued, the State’s appeal was finally determined for purposes of
continued bail under article 44.04(h). See Tucker v. State, 286 S.W.3d 558, 560 (Tex.
App.—Corpus Christi 2009, per curiam order) (construing the meaning of article 44.04(h)
as an appellant’s right to bail pending appeal continues only until the Court of Criminal
Appeals finally determines the State’s petition for discretionary review).
Appellant does not cite, and we have not found, controlling authority standing for
the proposition that he is entitled to remain on bail pending disposition of his petition for
writ of certiorari before the Supreme Court of the United States.4 There is no federal or
state constitutional right to bail pending appeal. Ex parte Aejaz, No. 14-14-00163-CR,
2014 Tex. App. LEXIS 8993, at *3 (Tex. App.—Houston [14th Dist.] Aug. 14, 2014, no
pet.) (mem. op., not designated for publication) (citing Ex parte Lowe, 573 S.W.2d 245,
247 (Tex. Crim. App. 1978); Cortez v. State, 36 S.W.3d 216, 221 (Tex. App.—Houston
[14th Dist.] 2001, pet. ref’d)). Because the Legislature’s articulated circumstances for
4 Citing decisions that we find inapposite to resolution of the issue here presented, appellant argues
his conviction is not final for purposes of bail until disposition of his petition for writ of certiorari. See Clay
v. United States, 537 U.S. 522, 524, 123 S. Ct. 1072, 155 L. Ed. 2d 88 (2003) (holding the one-year
limitation period for a federal prisoner seeking post-conviction relief under 28 U.S.C. § 2255, which
generally runs from “the date on which the judgment of conviction becomes final,” begins to run when the
time expires for filing a petition for certiorari contesting the appellate court’s affirmation of the conviction
and not when the appellate court’s mandate issues if the defendant does not seek certiorari); Caspari v.
Bohlen, 510 U.S. 383, 389, 390, 114 S. Ct. 948, 127 L. Ed. 2d 236 (1994) (explaining finality for application
of the federal habeas nonretroactivity principle occurs “when the availability of direct appeal to the state
courts has been exhausted and the time for filing a petition for a writ of certiorari has elapsed or a timely
filed petition has been finally denied”).
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when appellant might be entitled to bail are no longer present, we conclude appellant is
therefore no longer eligible for release on bail under article 44.04.
Appellant’s Motion to Stay Mandate and Appellate Review of Remaining Issues
By his motion, appellant asks that we stay mandate and refrain from disposing of
his remaining appellate issues while he prepares and files a petition for writ of certiorari
to the Supreme Court of the United States. As authority for withholding mandate appellant
cites Rule of Appellate Procedure 18.2 which authorizes an appellate court to stay its
mandate for up to 90 days in a criminal case pending the United States Supreme Court’s
disposition of a petition for writ of certiorari. TEX. R. APP. P. 18.2.
Appellant appears to misconstrue the operation of rule 18.2. If he intends we
enjoin the Court of Criminal Appeals’ mandate to this Court, we have no such authority.
TEX. GOV’T CODE ANN. § 22.102 (West 2004) (providing in part, “the mandate of the
appellate court that determined the case shall be directed to the court that had jurisdiction
over the case”). To the extent he intends we withhold our mandate from the trial court,
he is premature. Only after our judgment disposing of appellant’s remaining issues is
rendered may our mandate to the trial court issue. TEX. R. APP. P. 18.1(a). Appellant has
not presented authority for the requested stay of our disposition of his remaining appellate
issues while he pursues a petition for writ of certiorari before the Supreme Court of the
United States. We find appellant’s motion without merit.
Disposition
Appellant’s request for oral argument of the State’s motion is denied. We grant
the State’s motion to the extent it requests revocation of appellant’s bail. We further direct
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the trial court to take appropriate action to effectuate our revocation of appellant’s bail.
See Tucker, 286 S.W.3d at 560 (directing the trial court to take appropriate action to
effectuate the revocation of the appellant’s bail on appeal after case was remanded to the
court of appeals from the Court of Criminal Appeals for disposition of appellant’s
remaining issues); In re Bell, 527 S.W.3d 474 (Tex. App.—Houston [1st Dist.] 2017, orig.
proceeding) (rejecting relator’s argument that under Rule of Appellate procedure 25.2(g)
trial court lacked jurisdiction to issue capias after Court of Criminal Appeals vacated
decision of court of appeals and remanded case to court of appeals, noting trial court’s
bail authority under Code of Criminal Procedure article 44.04(d) continued during appeal).
Appellant’s motion to withhold mandate and stay disposition of appellate review of
his remaining issues is denied.
It is so Ordered.
Per Curiam
Do not publish.
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