EX PARTE DIXON v. << (2023)

DISSENTING OPINION

Two attorneys filed this habeas application for Applicant in 1998. The application was forwarded to our Court in 2022. Neither attorney made any attempt during this 24-year period to have the application forwarded to us sooner. Given the passage of time and other factors, Applicant's claim that he was incompetent to stand trial due to permanent intellectual disability is wholly lacking in credibility and cannot be substantiated. There is no point in remanding this claim that is so obviously without merit. We should simply deny relief.

Applicant's claim on habeas was that he was incompetent to stand trial because he was intellectually disabled. If credited, this claim would essentially make him forever incompetent to stand trial. Applicant's habeas attorneys supported the claim with an affidavit from one of his trial attorneys (Dick Wheelan) and from an expert witness (Dr. Ann Wheeler). For a number of reasons detailed below, including the 24-year passage of time, these affidavits are unpersuasive. There is also a great deal of controverting evidence that both undercuts Applicant's supporting evidence and affirmatively indicates that he was in fact competent to stand trial. This includes the devastating affidavit filed by Applicant's other trial attorney (Wayne Hill) and the opinions of four experts who evaluated Applicant at or around the time of trial and found him to be competent (Dr. Fred Fason, Dr. Jerome Brown, Dr. Mark Lehman, and Dr. Edward Silverman).

In his affidavit in 1994, trial attorney Dick Wheelan claimed that, due to intellectual shortcomings, Applicant was unable to communicate with counsel in any meaningful manner, could not follow the events at trial, could not help with his own defense, and “shut down” as a result. A serious problem created by the passage of time is that Wheelan has died. He cannot be brought to a live hearing to testify, he cannot be cross-examined, and his demeanor cannot be observed. Wheelan's unavailability is especially significant because Applicant's other trial attorney, Wayne Hill, contradicts Wheelan's claims.

In his 2015 affidavit, Hill acknowledged that Applicant had an intellectual disability but nevertheless maintained that he was able to communicate with Applicant and that Applicant understood the proceedings:

While meetings with Mr. Dixon were difficult due to his impaired mental state, I was able to communicate with him in a manner that allowed me to understand him. Likewise, at the time of my representation of Mr. Dixon I believe he understood me and the circumstances of the proceedings against him․ [W]hen I met with Mr. Dixon ․ I was able to obtain information necessary to understand what had taken place․ Clearly, Mr. Dixon did not possess the level of intellectual functioning of his age group, but he was able to discuss the facts of the case and comprehend the consequences of the proceedings he faced—even if expressed in simple terms.

Hill further explained that he and Wheelan discussed the “incompetency issue” and recognized, based on testing from four experts finding Applicant to be competent, that incompetency to stand trial “was not a sustainable issue.” Hill also said that Wheelan never indicated that he felt Applicant was incompetent to stand trial. And the record shows that neither attorney raised the issue of competency to the trial court.

In her 1994 affidavit, Dr. Ann Wheeler said it was her professional opinion that Applicant's intellectual disability “would have rendered it impossible” for him “to meaningfully understand what was occurring at trial or to assist his attorneys.” She based this opinion on a two hour interview she had with Applicant, and she acknowledged that she did not observe him in the courtroom except during her own testimony. In his affidavit, Hill explained that Dr. Wheeler testified in support of an insanity defense. Hill further explained that he retained Dr. Richard Austin to assist him and that Dr. Wheeler assisted Dr. Austin during the process of evaluating Applicant. Hill also explained that neither Dr. Austin nor Dr. Wheeler expressed any concerns to him about Applicant's competency to stand trial. And as far as Hill knew, Dr. Wheeler did not express any such concerns to co-counsel Wheelan.

In contrast to Dr. Wheeler, who did not express a competency opinion during trial proceedings, four experts did express an opinion about Applicant's competency at the time—and all of them found Applicant to be competent. Applicant's writ acknowledges the opinions of Dr. Brown and Dr. Silverman, but Hill's affidavit also discusses two other experts, Dr. Fason and Dr. Lehman, who also found Applicant to be competent. Dr. Lehman, at least, was a defense expert: Hill said that he obtained a court order to allow Dr. Lehman to examine Applicant. When asked, after expressing his opinion that Applicant was competent, whether trial counsel should get a second opinion, Dr. Lehman indicated that there was no real reason to do so, saying, “Being candid, I don't see incompetency or insanity.”

We should also consider the fact that Applicant's habeas attorneys made no effort to bring the incompetency claim before us since it was filed in 1998. They could have filed a mandamus action seeking to have the record forwarded to this Court but did not do so. They could have sought to compel the trial court to make findings of fact but did not do so. Applicant's initial death sentence might have created some incentive to allow proceedings to be delayed to prolong Applicant's life, but any such incentive disappeared when Governor Perry commuted the sentence to life in 2005. Yet the habeas attorneys made no effort to get the record forwarded, or to get findings of fact, in the 17 years that followed. And despite the initial death sentence, if the habeas attorneys had truly believed that they had a winning argument in the competency claim, they would have tried to get a speedy resolution of that claim. Twenty-four years of silence supports a conclusion that Applicant's own habeas attorneys did not find his claim to be particularly compelling.

To summarize, neither of Applicant's witnesses expressed any concerns about Applicant's competency at the time of trial, and four experts found Applicant to be competent at that time. The trial attorney supporting Applicant's position has died, and his co-counsel disagrees and details compelling reasons to think Applicant was competent. And Applicant's habeas attorneys have not acted with any urgency on this matter, letting it linger for 24 years. It is highly unlikely that the convicting court on remand would believe Applicant's evidence in support of incompetency over the evidence supporting competency.

We should not remand for the unlikely possibility of the convicting court finding in Applicant's favor because, even if that were to happen, such a finding would deserve to be disregarded. As the ultimate factfinder in an Article 11.071 habeas action, we are not completely bound by the convicting court's view of things, even on matters of credibility.¹ It should take extraordinary circumstances to disregard a convicting court's credibility determination, but such circumstances are present here. If we look solely at the evidence currently before us, it is all documentary. We are in as good a position as the trial court to assess the credibility of this information.² Even so, we ordinarily defer even to a trial court's resolution of disputed factual issues based solely on documentary evidence because we recognize that trial courts have “expertise” in evaluating issues of fact.³ But this is not an ordinary case.

In some types of habeas cases, we have required a live hearing to develop the record before making the important decision on whether to grant relief.⁴ Had the competency claim been forwarded to us in a timely fashion, a live hearing would have been appropriate to allow the parties to question Attorney Wheelan and Dr. Wheeler regarding their opinions about Applicant's competency and on why they did not raise their opinions earlier, in time to present them before trial proceedings had concluded. But Wheelan has died and cannot be called at a live hearing. And even if Dr. Wheeler can be produced, 24 years is a long time for her memory to dim, especially given her brief involvement in evaluating Applicant, calling into doubt any further response she could make. The memories of the four experts who found Applicant to be competent would also have dimmed, which would likely make them rely solely on their reports to testify.

And the documentary evidence here is lopsided in the State's favor, both in quantity and quality. Four experts found Applicant competent as opposed to one on Applicant's side. Those four experts were charged with evaluating the issue of competency, unlike Applicant's expert, who appears to have been solely concerned with the issue of sanity. Moreover, those four experts expressed their opinions before Applicant's trial, while Applicant's expert never expressed qualms about competency, before or during the trial proceedings, even to defense counsel. And Hill's testimony that Applicant was competent is consistent with the fact that neither of Applicant's trial attorneys raised the issue of competency at trial, while Wheelan's testimony that Applicant was incompetent is not consistent with that fact.

The Court orders the habeas court to determine on remand whether a retrospective competency determination is feasible—something Applicant's habeas attorneys have not even requested. Such an assessment is almost certainly not feasible after the passage of 24 years. But even if it were feasible in the abstract, Applicant's competency to stand trial was already determined—by four different experts—before trial. A retrospective determination of incompetency by new experts after 24 years would be of questionable reliability and would not come even close to outweighing the at-the-time assessments made by the four experts who found Applicant to be competent.

We should not remand this claim. Instead, we should simply deny relief. I respectfully dissent.

FOOTNOTES

1.   Ex parte Reed, 271 S.W.3d 698, 727 (Tex. Crim. App. 2008) (“For over forty years, our writ jurisprudence has consistently recognized that HN3 this Court is the ultimate factfinder in habeas corpus proceedings․ [I]n most circumstances, we will defer to and accept a trial judge's findings of fact and conclusions of law when they are supported by the record.”) (emphasis added).

2.   Cf. Guzman v. State, 955 S.W.2d 85, 87 (Tex. Crim. App. 1997) (on the issue of whether an officer has probable cause, which is reviewed de novo, “the trial judge is not in an appreciably better position than the reviewing court to make that determination.”)

3.   Manzi v. State, 88 S.W.3d 240, 243-44 (Tex. Crim. App. 2002).

4.   See Ex parte Tiede, 448 S.W.3d 456, 470 (Tex. Crim. App. 2014) (discussing this Court's treatment of actual innocence claims in sex-offense cases involving recantations).