Ex parte Dixon

1

EX PARTE DAKOTA DOUGLAS DIXON

No. 11-20-00161-CR

Court of Appeals of Texas, Eleventh District

May 12, 2022

DO NOT PUBLISH

On Appeal from the 142nd District Court Midland County, Texas Trial Court Cause No. CR51721

Panel consists of: Bailey, C.J., Trotter, J., and Williams, J.

MEMORANDUM OPINION

W BRUCE WILLIAMS JUSTICE

On November 1, 2018, Dakota Douglas Dixon (Appellant) pleaded guilty to intoxication assault, a third-degree felony. See Tex. Penal Code Ann. § 49.07(c) (West 2011). The trial court assessed Appellant's punishment at confinement for ten years but, pursuant to a plea agreement between Appellant and the State, suspended his punishment and placed him on community supervision for eight years. On April 1, 2020, Appellant applied for a writ of habeas corpus based on the claim that new evidence existed. Appellant's writ application came before the same trial judge that had accepted Appellant's guilty plea and had placed him on community supervision nearly two years earlier. See Tex. Code Crim. Proc. Ann. art. 11.072 (West Supp. 2021).

The trial court denied his application without an evidentiary hearing.

In six issues, Appellant contends that the trial court erred in its factual findings and abused its discretion by denying his requested relief without an evidentiary hearing. He further asserts that, other than remanding for an evidentiary hearing, this court's only alternative is to vacate Appellant's conviction on due process grounds. We affirm.

Background

We note at the outset that Appellant has not provided a reporter's record from the hearing wherein he pleaded guilty. Accordingly, the factual matters stated in this opinion regarding the underlying offense are for the most part those that were conveyed to the trial court by affidavits and documents attached to those affidavits.

Just before 3:00 a.m., on February 14, 2018, Midland Police Officer Rowdy Warren arrived at the scene of a vehicular accident on 11710 Tower Road, in Midland County, Texas. Officer Warren observed "heavy front-end damage" to a 2014 Chevrolet Silverado pickup driven by Appellant and to an 18-wheeler reportedly driven by Adrian Esparza. Officer Warren reported that Fernando Camacho was in the passenger seat of the 18-wheeler when the collision occurred. Appellant admitted that he had been drinking, and a portable breath test revealed the presence of alcohol. At that point, Officer Warren placed Appellant under arrest for DWI. See Penal § 49.04(a).

After Appellant refused to voluntarily submit to a blood draw Officer Warren obtained a search warrant for Appellant's blood, and Appellant was taken to Midland Memorial Hospital where a sample of his blood was collected. The accident having occurred at approximately 2:44 a.m., and Appellant's blood not being drawn until 6:45 a.m.-some four hours later, ^[1] lab results ultimately showed that the sample extracted from Appellant contained 0.081 grams of alcohol per 100 milliliters of blood (with a 99.7% confidence level in that result). See Penal § 49.01(2) (defining "intoxicated" as, inter alia, "having an alcohol concentration of 0.08 or more."). While at Midland Memorial, the staff also informed Officer Warren that Camacho had suffered "extensive trauma to his lumbar spine" as a result of the collision. Officer Warren then transported Appellant to jail, where he was booked for intoxication assault. See id. § 49.07. Appellant later pleaded guilty to the indicted charge of intoxication assault and he was placed on community supervision for a term of eight years.

Appellant subsequently applied for a writ of habeas corpus on the grounds that newly discovered evidence reveals that he did not actually cause the accident that resulted in Camacho's serious bodily injuries. Appellant argued that, in light of this new evidence, (1) his conviction and sentence violated due process because, at most, he could only be guilty of the lesser included offense of DWI; (2) his plea counsel rendered ineffective assistance by failing to investigate who actually caused the accident, failing to tell Appellant that there was some question as to who caused the accident, and failing to advise him that he could hire an expert to investigate the cause of the accident; and (3) his plea was involuntary because he entered into it based on the misunderstanding that he caused the accident that resulted in Camacho's injuries. In his prayer, Appellant requested that the trial court conduct an evidentiary hearing "to resolve any disputed material fact questions."

Appellant's "new evidence" consisted of a collision analysis conducted by Judd Joy, a crash reconstructionist for M&M Security Services, Inc. in Plano, Texas.

Joy has a B.A. in criminal justice from Midwestern State University in Wichita Falls, Texas. In his report, Joy states that he did not have access to the vehicles, the crash data from the vehicles, any diagrams or forensic maps of the crash scene, or any independent witness statements. Rather, Joy's opinions were based on "a few photographs of the crash scene," "body camera video provided by the Midland Police Department," "Google earth images," Officer Warren's crash report and offense report, and Camacho's medical records. Joy ultimately concluded that "the crash report prepared by the Midland Police Department is inaccurate" and that the other driver "failed to drive in a single lane and caused this crash to occur."

With respect to his ineffective assistance and involuntary plea claims, Appellant alleged in his writ application that, prior to pleading guilty, his plea counsel "never advised [him] that there was a question about who caused the vehicle accident" and "never discussed hiring a collision-reconstruction expert to investigate the matter." Appellant averred that, "had [he] known [he] did not cause the accident, [he] never would have pleaded guilty." Based on these allegations, the trial court ordered Appellant's plea counsel to submit an affidavit responding to the questions regarding his assistance.

Plea counsel promptly submitted an affidavit that provided detailed responses to each question. In his affidavit, plea counsel stated that he personally investigated the case and hired a private investigator to do so as well. He stated that he and his investigator went to the crash scene, reviewed all discovery, interviewed witnesses, and consulted with Appellant's defense attorney in the parallel civil case^[2] filed against Appellant arising out of the same occurrence. He stated that Appellant's civil defense attorney hired an accident reconstruction expert and that the results were "inconclusive" and "not of assistance to [Appellant's] case." He explained that "[t]here was some question as to who caused the accident" but that "the overwhelming evidence available did not exonerate [Appellant] as a cause of the accident." Finally, plea counsel stated that he reviewed Camacho's medical records and discovered a nurse's note suggesting that Camacho may have been driving the other vehicle while texting; however, the nurse was equivocal as to whether Camacho actually made the statement. Plea counsel attested that he relayed all of this information to Appellant before he chose to plead guilty.

Appellant filed a responsive affidavit that disputed several statements in plea counsel's affidavit. Specifically, Appellant stated (1) that he did not know that there was any question as to who caused the accident, (2) that he was unaware of the results of any accident reconstruction analysis conducted as part of his civil case, and (3) that plea counsel never told him about the note in Camacho's medical records suggesting that Camacho may have been driving the other vehicle and may have caused the accident when he lost control while texting. Appellant also filed a motion requesting that the court hold an evidentiary hearing where he and plea counsel could testify and be cross-examined so the trial court might better assess their credibility and determine whose account of events was accurate.

Without conducting an evidentiary hearing, the trial court found that plea counsel fully investigated the relevant facts and apprised Appellant of all relevant information-including the results of the accident reconstruction expert in the parallel civil case and the note in Camacho's medical records suggesting that he was actually the driver of the other vehicle and was texting while driving. Accordingly, the trial court denied Appellant's application.

In his first two issues on appeal, regarding his claims of ineffective assistance and involuntary plea, Appellant challenges the trial court's findings of fact that plea counsel told Appellant about the note in Camacho's medical records and the option of hiring an expert to investigate the cause of the accident. In his third through fifth issues, Appellant argues that the trial court abused its discretion by denying Appellant's application without first conducting an evidentiary hearing. In his sixth issue, Appellant argues that if we do not remand this cause for an evidentiary hearing, then we must vacate Appellant's conviction for intoxication assault because the record conclusively demonstrates that he is only guilty of the lesser misdemeanor offense of DWI.

Discussion

I. Plea counsel told Appellant about the note in Camacho's medical records and discussed the hiring of an expert.

A. Standard of review and applicable law

When reviewing a trial court's ruling on a habeas claim, we "review the record evidence in the light most favorable to the trial court's ruling and must uphold that ruling absent an abuse of discretion." Kniatt v State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006) (citing Ex parte Peterson, 117 S.W.3d 804, 819 (Tex. Crim. App. 20...