Dixon v. State
| Decision Date | 13 December 2018 |
| Docket Number | No. 07-16-00058-CR,07-16-00058-CR |
| Citation | 566 S.W.3d 348 |
| Parties | Thomas DIXON, Appellant v. The STATE of Texas, Appellee |
| Court | Texas Court of Appeals |
Jeffrey S. Ford, Lauren Murphree, for Appellee.
Dante Dominguez, San Antonio, Cynthia Orr, Jonathan Chavez, for Appellant.
Before QUINN, C.J., and CAMPBELL and PARKER, JJ.
Appellant Thomas Dixon, an Amarillo plastic surgeon, was indicted on two counts of capital murder for the July 10, 2012 death of Lubbock physician, Joseph Sonnier, M.D. The State did not seek the death penalty. After the first trial ended in a mistrial, the case was retried, and a second jury found appellant guilty of both counts of capital murder. The trial court signed a separate judgment for each count, imposing in each judgment the mandatory sentence of life in prison without the possibility of parole.1 On appeal, appellant raises fifty issues challenging his convictions. For the reasons we will describe, we will reverse the trial court’s judgments and remand the case for a new trial.
To resolve the appeal, we find it necessary to address three groups of the issues appellant raises. We will begin with his first and second issues, by which appellant challenges the sufficiency of the evidence supporting his convictions. We then will discuss his issues numbered 43 through 47, concerning the trial court’s ruling on his motion to suppress historical cell site data obtained from his cell phone service provider without a warrant. Finally, we will address appellant’s issues numbered 11 through 16, regarding occasions on which members of the public were excluded from the courtroom during appellant’s trial. We will give relevant background facts in our discussion of each of the issue groups.
By the indictment and its evidence, the State alleged appellant was guilty of capital murder under two provisions of the Texas Penal Code. The indictment’s first count alleged appellant intentionally or knowingly caused Sonnier’s death by employing David Shepard to murder Sonnier for remuneration or the promise of remuneration, and Shepard caused Sonnier’s death by shooting and stabbing him.2 Appellant’s guilt under the second count required proof he was criminally responsible for Shepard’s conduct.3 In that way, the second count alleged, appellant was guilty of intentionally causing Sonnier’s death by shooting and stabbing him, in the course of committing or attempting to commit burglary of Sonnier’s residence.4 As noted, the jury found appellant guilty on both counts.5
On appeal, he contends the evidence presented to the jury was not sufficient to support a conviction under either count. We begin with these issues because sustaining them would entitle appellant to the greatest relief, a judgment of acquittal. Guevara v. State , 152 S.W.3d 45, 49 (Tex. Crim. App. 2004).
Sonnier was found dead in the garage of his Lubbock home on the morning of July 11, 2012. He had been stabbed and shot. That appellant’s friend David Shepard entered Sonnier’s home through a window and killed Sonnier was not disputed at appellant’s trial and is not questioned on appeal. Shepard pled nolo contendere to the capital murder of Sonnier. Under the terms of a plea-bargain agreement, he was sentenced to confinement in prison for life without the possibility of parole.
There was no evidence appellant was present at the time of Sonnier’s murder. In fact, undisputed alibi evidence established appellant was in Amarillo at the time.
Early in his investigation of the murder, Lubbock police detective Zach Johnson interviewed Sonnier’s girlfriend, Richelle Shetina. She and Sonnier recently had returned from celebrating her birthday in France. Shetina previously had been involved in a relationship with appellant. She gave Johnson a list of those she felt law enforcement should contact. The list included appellant.
During the late evening of July 11, Johnson and Lubbock police detective Ylanda Pena interviewed appellant and his new girlfriend, Ashley Woolbert, at appellant’s Amarillo home. Appellant told Johnson he knew nothing about Sonnier. But regarding Shetina, he told Johnson he "would love to have her back," and it "broke his heart" she was in another relationship.
While Johnson spoke with appellant, Pena interviewed Woolbert. She told Pena of another person, "Dave." According to Woolbert’s testimony she, appellant, and Shepard had dinner together on July 11. As the detectives were leaving appellant’s residence Pena asked appellant about "Dave." He explained Dave was his friend, Dave Shepard. He gave the detectives Shepard’s telephone number.
Appellant also told the detectives Shepard came by his house between 10:00 and 10:30 the evening before "to get two cigars."6 Telephone records in evidence indicate that, within minutes of the detectives' departure, appellant called Shepard and they regularly communicated during the following hours. Immediately after appellant’s call, Shepard telephoned his roommate, Paul Reynolds.
Twice during the three or four days following Sonnier’s murder, Shepard attempted suicide. On the evening of July 14, appellant met Shepard at appellant’s medical office where he stitched Shepard’s left wrist, following the second failed suicide attempt.
On Sunday, July 15, Reynolds contacted the Lubbock crime line and related that Shepard confessed to him that appellant paid Shepard to kill Sonnier. Police obtained warrants and Shepard and appellant were arrested on July 16. Indictments followed.
Shepard led police to an Amarillo lake where he said he threw the pistol he used to shoot Sonnier. Police divers recovered the pistol from the lake. A Department of Public Safety firearms examiner testified that the cartridge casings recovered from Sonnier’s residence had been "cycled through" the recovered pistol. The pistol was one that appellant’s brother had given appellant.
For appellant’s second trial, Shepard was brought from prison on a bench warrant and held in the county jail throughout trial. But neither the State nor the defense presented him as a witness. This meant the State’s direct proof of an agreement between appellant and Shepard for the murder of Sonnier depended on hearsay statements attributed to Shepard.
Reynolds testified for the State. He related a conversation he and Shepard had on July 12. According to Reynolds, Shepard told him that he had killed a man by shooting him. He said he and appellant planned the murder, and appellant gave him the gun he used. Reynolds said Shepard told him Sonnier "had been causing problems" for appellant and "there was a girlfriend that they had in common." Reynolds further testified that Shepard told him Dixon paid Shepard three bars of silver to kill Sonnier. Evidence showed Shepard sold a silver bar at an Amarillo pawn shop on June 15, 2012, and sold two silver bars to the same business on July 11, the day following Sonnier’s murder.
Johnson testified that Reynolds told him that appellant’s involvement "in the murder for hire plot was that he had paid David Shepard in three silver bars to commit the murder of Dr. Sonnier." Johnson further testified that Shepard told him "all about how he and Dixon had for months surveilled and planned and funded and had carried out this execution of Dr. Sonnier."
Appellant testified in his defense and denied any involvement in Sonnier’s murder. Appellant related to the jury that he and his wife divorced after he began an affair with Shetina. While the divorce was pending appellant purchased shares in an allergy testing business Shepard was starting, Physicians' Ancillary Services, Inc. (PASI). Because of his ongoing divorce proceeding, appellant said, he purchased his interest in PASI with three silver bars that were his separate property.
After he divorced his wife for Shetina,7 appellant’s relationship with her became difficult. According to appellant’s testimony, she was demanding and volatile, and pushed him to give her an engagement ring. Nonetheless, his ego was deeply wounded, he said, when Shetina told him in January 2012 she could not meet him to discuss their relationship because she had begun a "committed" relationship with Sonnier. She lauded Sonnier in social media posts.
Appellant’s testimony indicated that meanwhile he and Shepard were "meeting regularly" to discuss Shepard’s efforts to initiate PASI’s allergy-testing business. The business required referrals from physicians and Shepard represented to appellant that he was regularly traveling to Lubbock to solicit physicians. At a point, appellant testified, Shepard said some people he met in Lubbock told him Sonnier was seeing other women. Appellant further testified Shepard led him to believe he had been a private investigator, and that he could obtain proof that Sonnier was dating women other than Shetina. Over a period of some four months leading up to the day of Sonnier’s murder, appellant said, he encouraged Shepard in plans to discredit Sonnier in Shetina’s eyes. By one plan, sometimes referred to in the record as "Plan A," Shepard would obtain photographs of Sonnier with other women, for appellant to show Shetina.8 By another, "Plan B," Shepard would hire a female to tell Shetina that Sonnier was unfaithful.
Evidence showed during this time appellant and Shepard communicated regularly, by cellphone and text message. The following exchange of text messages between Shepard and appellant occurred on July 9, 2012, the day before Sonnier’s murder.
Shepard to Appellant: Appellant to Shepard
"Perfect day for travel to hub city." 4:23 p.m. "Need it done ASAP" 4:24
p.m
"Me too." 4:25 p.m
"I've got gas and ready to head south
tomorrow." 8:26 p.m. "Yay" 8:27 p.m
"Got a good feeling about tomorrow." 8:28 p.m. "Hope so:-)" 8:32 p.m
"Hope he shows." 8:51 p.m
On July 10, the day of...
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