Texas

Texas courts struggle to resolve criminal appeals that got lost in Harris County for decades

Published

1 year ago

July 6, 2023

Texas courts struggle to resolve criminal appeals that got lost in Harris County for decades

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In 1998, a Harris County court was asked to overturn a young death row prisoner’s conviction, his attorney arguing the teen should never have been found competent to stand trial.

Tony Tyrone Dixon was 17 and living in a group home for intellectually disabled people when he killed Elizabeth Peavy in a 1994 carjacking. He was “incapable of saying a complete sentence,” let alone participating in his defense at trial, one of Dixon’s trial attorneys swore in an affidavit included in the legal filing.

For 24 years, Dixon waited in prison as his petition inexplicably went unresolved, lost in a system that churned through about 60,000 new felony cases last year.

The trial court never took up the plea, and his court-appointed appellate attorney never nudged it along.

“This now-46-year-old intellectually disabled person was largely forgotten by the criminal legal system,” said Benjamin Wolff, director of the Office of Capital and Forensic Writs, the state’s public defender for death penalty appeals.

“Mr. Dixon deserved more,” he said. “We all did.”

Dixon’s is one of about 100 Houston-area criminal appeals recently discovered to have fallen through the cracks for a decade or more in the state’s most populous county. Judges and attorneys still don’t know how this happened, how many other cases may be lost or whether it is now even possible to resolve the legal challenges raised in the appeals.

The “lost and found” cases, as a Texas Court of Criminal Appeals judge labeled them, came to light last year, the Harris County district clerk’s office said in a statement last week. Judges attempting to ease the criminal case backlog that ballooned during the height of the coronavirus pandemic found dozens of pending cases, all filed in or before 2013, in which people were challenging the constitutionality of their convictions or sentences.

(A procedural rule change made in 2013 now requires district clerks to send such criminal appeals to the Court of Criminal Appeals six months after they are filed, regardless of whether the trial court has acted on them.)

By the end of last year, the clerk’s office said, it had forwarded all the rediscovered cases to Texas’ highest criminal court to be resolved without explaining why they were, in many cases, decades delayed.

“For reasons unknown, we did not receive this application until twenty-two years later,” Judge David Newell wrote in a November opinion for one lost case.

In that case, Tommy Taylor argued his trial lawyer had violated his rights to counsel by failing to set his drug possession conviction up for appeal before the legal deadline. By the time the Court of Criminal Appeals saw the case in 2022, Taylor had already served his 20-year sentence. The court sent the case back to Houston to find out if Taylor still wanted to pursue an appeal and, after learning he did, allowed the former prisoner to move forward with his now-pending litigation.

A death penalty challenge from another prisoner, Syed Rabbani, went unresolved for nearly 30 years, The Houston Landing reported last month. Rabbani’s jury had not been able to consider potentially mitigating evidence, like his mental illness, when deciding whether to sentence him to life in prison or death, an omission his attorneys argued was unconstitutional in a 1994 petition.

The claim lay dormant until the district clerk forwarded it to the high court last August. The Court of Criminal Appeals punted Rabbani’s case back to Harris County to review the arguments, and in May, prosecutors agreed with Rabbani’s claim and recommended that he get a new sentencing trial.

Harris County’s administrative judge, Latosha Lewis Payne, said last week that after finding the missing cases, court administration and the district clerk’s office set up a process to notify court administrators every time a post-conviction appeal is filed. The clerk’s office has also set in place a process to forward on cases, regardless of whether they’re resolved, within 180 days of filing.

But it’s still unknown exactly how or why these appeals went cold. Judges and attorneys have blamed different combinations of apathetic defense attorneys, thoughtless trial court judges and bad case management.

Newell, however, said “the fault lies in the system.”

“If there are holes in our current procedures that need to be plugged going forward, this Court needs to find them,” he wrote in November.

After languishing for 24 years, Dixon’s case illustrates the challenges that come with raising appeals from the dead.

At 17, Dixon had lived for about three years in a Nacogdoches group home for people with intellectual disabilities, according to court records. The home manager testified that Dixon had trouble controlling his bowels, and psychiatrists said he had trouble speaking beyond simple words.

His mother was only 13 years his senior, having become pregnant after being raped, she testified in court.

One weekend in 1994, while home in Houston for a visit with his mother, Dixon left with two other boys to play basketball. When they drove past a gas station, one of the boys testified, Dixon wanted to steal a car he spotted unattended with the door open. He got out, and, when Peavy returned to her car, Dixon shot her several times during a struggle.

At his trial the next year, Dixon’s attorneys pleaded insanity based on his intellectual disability, arguing it prevented him from understanding the difference between right and wrong and allowed him to be manipulated easily by his peers. Prosecutors argued Dixon’s disability did not qualify him as insane, and the jury convicted him of capital murder and sentenced him to death.

In August 1998, Dixon’s court-appointed appellate attorney filed his first post-conviction habeas corpus appeal, in which constitutional concerns involving convictions or sentences can be raised. Among other things, attorney Alexander Calhoun argued Dixon was mentally incompetent to stand trial, unable to help his trial attorneys with his defense.

It is unconstitutional to convict defendants who can’t rationally understand trial proceedings or consult with their attorneys, and judges are supposed to make the call.

Dixon was never able to tell his lawyers what happened during Peavy’s murder or have any effective communication with them whatsoever, one of his trial attorneys, Dick Wheelan, said in a 1998 affidavit. Wheelan noted that Dixon slept through most of the trial. Prosecutors used that against him, but Wheelan said he thought Dixon shut down because “he simply did not understand what was going on and could not follow events.”

Calhoun noted that prosecution experts who examined Dixon had strongly cautioned that his understanding of the trial would be “marginal” or “primitive” and that extra help and patience would be needed to make sure he kept up. He said no such accommodations were made at trial.

Shortly after the appeal was filed, the judge signed an order giving prosecutors an unspecified amount of time to file their response beyond the then 30-day deadline.

Sixteen years passed before they did.

In the interim, Dixon’s death sentence was wiped away in an unrelated appeal. A landmark 2005 U.S. Supreme Court ruling held that it was unconstitutional to sentence juveniles to death, nullifying dozens of Texas death sentences, including Dixon’s. Because he was 17 when he killed Peavy, his sentence was changed instead to life in prison.

Some criminal law experts suspect the change of sentence explains why Dixon’s appellate attorney, Calhoun, did not press the stalled appeal in the ensuing years. His client was off death row, and that was a win.

Calhoun did not respond to repeated calls about Dixon’s case.

Ultimately, however, prosecutors did respond to Dixon’s request for a new trial. In 2014 — without any mention of the 16-year gap between the filings — Lori DeAngelo, then a Harris County assistant district attorney, filed a response arguing that two mental health professionals had deemed Dixon competent before trial, despite his intellectual disability.

In a phone interview last week, DeAngelo said she had no idea why the appeal was answered more than a decade after it was filed and did not know how the case resurfaced on her desk.

“Whatever I was assigned is what I did,” she said.

The next year, at the prosecution’s request, the court ordered Dixon’s other trial attorney, Wayne Hill, to provide an affidavit about his thoughts on Dixon’s competence. In his 2015 affidavit, signed 20 years after trial, Hill said Dixon’s limited verbal abilities did make representing him difficult, but that he believed the teen understood what was happening.

The trial court never weighed in on Dixon’s or the prosecution’s claims. Nothing happened for years, until the district clerk in its house-cleaning efforts sent the unresolved claim up to the Court of Criminal Appeals last August.

It may be too late.

Last month, the Court of Criminal Appeals, now used to the Houston chaos, gave Dixon’s trial court 60 days to figure out if it’s even still possible to retroactively weigh whether he was competent to stand trial.

There is at least one major roadblock: Wheelan, Dixon’s attorney who said in the 1998 appeal that he believed his client should have been found incompetent, died in 2008.

“He cannot be brought to a live hearing to testify, he cannot be cross-examined, and his demeanor cannot be observed,” Court of Criminal Appeals Presiding Judge Sharon Keller wrote in a dissenting opinion, in which she said she would deny Dixon’s appeal.

Josh Reiss, chief of the Harris County district attorney’s office post-conviction division, said shortly after the court order last month that his office was starting to look into whether a retrospective competency hearing is possible.

If the local court decides it can assess Dixon’s competence at trial and ultimately decides he was incompetent, the Court of Criminal Appeals could toss his conviction nearly 30 years after it was handed down. If the trial court rules his competency can’t be determined, it’s up to the Court of Criminal Appeals to figure out what to do.

With approximately 100 other cases of varying complexity, it’s unclear how many of the rediscovered cases will ever have their day in court.

“Plenty of people like [Dixon] will have … factually intensive claims, claims that perhaps require testimony from witnesses, claims that might require accessing physical evidence that may have deteriorated, that the passage of time will make impossible to adjudicate,” said Jennifer Laurin, a University of Texas criminal law professor.

“The Court of Criminal Appeals is ultimately going to have to make a decision for a process of unwinding this error,” she added.

Disclosure: The University of Texas at Austin has been a financial supporter of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune’s journalism. Find a complete list of them here.

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Questions surround QB Quinn Ewers as Texas faces must-win game against A&M

Published

3 hours ago

November 25, 2024

Press Room

Questions surround QB Quinn Ewers as Texas faces must-win game against A&M

AUSTIN, Texas (KTRK) — The Texas Longhorns clinched a 10-win season over the weekend, thanks to the win over Kentucky.

There’s a constant conversation about QB-1 and whether he has what it takes to lead the Longhorns to a National Championship.

The Houston Chronicle’s Kirk Bohls joined Eyewitness News to analyze Quinn Ewers’ performance under center and preview the Lonestar Showdown.

Bohls said despite an ankle injury Ewers received in the game against Kentucky, he expects Ewers will be healthy enough to start for the Longhorns against Texas A&M on Saturday.

Despite a shaky performance against Vanderbilt and the loss to Georgia, Bohls argued that Ewers doesn’t get the respect his talent deserves. He has led the Longhorns to back-to-back 10-win seasons and a playoff appearance last season. This season, he’s thrown for over 2,000 yards with 23 touchdowns and six interceptions. Bohls said he’s among the top five quarterbacks the Longhorns have had.

Texas sits at the top in The Houston Chronicle’s SEC Power Rankings, but the upcoming Lonestar Showdown is a must-win.

The SEC Championship is on the line for the Longhorns and the Aggies.

Bohls said it will come down to whether Texas’ offensive weapons can break through a tough Aggie defensive line. He also predicted that Arch Manning could get playing time if Ewers isn’t at the top of his game.

You can watch the Lonestar Showdown on ABC13 on Saturday night. Kickoff is set for 6:30 p.m.

For updates on this story, follow Briana Conner on Facebook, X and Instagram.

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Texas vs. Texas A&M football picks: What the oddsmakers say

Published

11 hours ago

November 25, 2024

Press Room

Texas vs. Texas A&M football picks: What the oddsmakers say

A classic college football rivalry returns after more than a decade and with plenty on the line as Texas visits Texas A&M on Saturday night. Here’s what the oddsmakers are predicting for the game.

Texas improved to 6-1 in SEC play and stayed atop the conference standings after knocking off Kentucky, and needs to win this game in order to earn a place against Georgia in the SEC title bout.

Likewise for the Aggies, but they’re coming off a four-overtime loss against Auburn that dropped the team to 8-3 overall and 5-2 in conference games.

What do the wiseguys expect as the Longhorns and Aggies meet this weekend?

Let’s check in with the early predictions for Texas vs. Texas A&M in this Week 14 college football game, according to the oddsmakers.

Texas is a 6 point favorite against Texas A&M, according to the updated lines posted to FanDuel Sportsbook.

The book set the total at 48.5 points for the game.

And it lists the moneyline odds for Texas at -230 and for Texas A&M at +195 to win outright.

Texas: -6 (-110)
Texas A&M +6 (-110)

Over 48.5 points: -110
Under 48.5 points: -110

Texas is 6-5 against the spread (54.6%) overall this season …

Texas A&M is 3-8 (27.3%) ATS in ‘24 …

Texas is 2-2 against the spread in road games …

Texas A&M is 2-5 ATS at home …

Texas is 1-4 against the spread in its last 5 games …

A&M is 2-6 ATS in its last 8 home games …

Texas is 4-1 against the spread in its last 5 games played in Week 14 …

The total went over in 5 of Texas A&M’s last 6 games …

The total went under in 6 of Texas’ last 7 games and 7 of its last 9 road games …

A&M is 3-10 ATS in its last 13 games on a Saturday …

A plurality of bettors expect the Longhorns will take care of the Aggies on the road, according to the spread consensus picks for the game.

Texas is getting 63 percent of bets to win the game and cover the narrow point spread.

The other 37 percent of wagers project Texas A&M will either win outright in an upset or keep the game under a touchdown margin in a loss.

The game’s implied score suggests a narrow victory for the Longhorns over the Aggies.

When taking the point spread and total into consideration, it’s implied that Texas will defeat Texas A&M by a projected score of 28 to 22.

Our early pick: Texas A&M +6 … Strange things can happen at Kyle Field under the lights, especially as this intense rivalry game is resurrected, and with so much on the line, so asking for a greater than touchdown margin might be too much, and this is a game the Aggies can outright win.

When: Sat., Nov. 30
Where: College Station, Tex.

Time: 6:30 p.m. Central
TV: ABC network

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Game odds refresh periodically and are subject to change.

If you or someone you know has a gambling problem and wants help, please call 1-800-GAMBLER.

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More college football from SI: Top 25 Rankings | Schedule | Teams

Follow College Football HQ: Bookmark | Rankings | Picks

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Should States Like Texas Be Allowed to Grade Their Own Highway Homework? — Streetsblog USA

Published

19 hours ago

November 25, 2024

Press Room

Should States Like Texas Be Allowed to Grade Their Own Highway Homework? — Streetsblog USA

In late October, protestors in Houston watched as officials wheeled a trough out into the middle of St. Emanuel Street and each scooped out a ceremonial shovelful of sand.

The officials were ostensibly there for a symbolic groundbreaking for the North Houston Highway Improvement Project, which will widen or rebuild around 25 miles of Interstate 45 in the heart of Texas’s largest city. For the protesters, though, the bulldozers that loomed in the background of that photo-op were a very real threat of the harm soon to come to St. Emanuel Street, and the estimated 1,079 homes, 344 businesses, five places of worship and two schools that will be razed to make way for the highway.

“Half of that street is going to be gone,” added Erin Eriksen, an organizer with Stop TxDOT I-45. “Half of those businesses are going to be torn down. And TxDOT was basically thumbing its nose at these places that were going to be destroyed because of this project.”

According to official analyses, though, the destruction of St. Emanuel Street and so many like it isn’t enough of an “environmental impact” to justify canceling the I-45 project, even though it will dramatically exacerbate pollution, flooding, and inequality in the disproportionately low income communities of color through which the expansion will largely run.

And that’s probably because the Texas Department of Transportation wrote those official analyses itself.

‘A fox guarding a hen house”

Thanks to a little-known loophole in federal law known as the “NEPA assignment” program, DOTs from Texas and six other states — Alaska, Arizona, California, Florida, Ohio, and Utah — are temporarily “assigned” the responsibility of conducting what are normally federally overseen environmental assessments (the states must reapply every five years when their authority expires. Texas’s authority expires this year, and members of the Texas Streets Coalition are urging advocates to comment on whether it should be rescinded before Dec. 9.)

In theory, NEPA assignment is supposed to help responsible state DOTs build projects quickly, without having to wait on a single understaffed federal agency to work through a backlog of proposals from across the country before giving the green light on simple repaving or repair. Some argue that it also gives environmentally progressive states an opportunity to conduct an even more thorough analysis than the feds would do on their own.

In car-dominated Texas, though, NEPA assignment is essentially a “fox-guarding-the-henhouse situation” — and its consequences shouldn’t be surprising to anyone, argues Heyden Black Walker of Reconnect Austin.

In Walker’s native Austin, for instance, advocates say that Texas DOT misleadingly “segmented” the expansion of a single intestate known as I-35 into three smaller projects along the exactly same road, hiding the staggering impacts the expansion would have for the region on the whole — and, advocates say, violating federal law. Walker says the “9,000 pages” of official documents about the project also didn’t adequately consider the highway’s impacts on air pollution, and failed to study whether railway investments could address the same problems the expansion was meant to solve.

That the I-35 expansion received even that degree of scrutiny, though, is something of an outlier.

Texas activists found that between 2015 and 2022, only six TxDOT projects receive a full-blown “environmental impact statement,” an exhaustive process that details exactly how the agency will mitigate the harm it will cause. A staggering 130 projects, by comparison, only received a far-simpler “environmental assessment,” all of which resulted in a “finding of no significant impact,” or FONSI, which is pronounced like the shark-jumping character on “Happy Days.”

Cumulatively, though, those “insignificant” projects displaced a stunning total of 477 homes and 376 businesses, and consumed $24 billion. And advocates say that lack of oversight is particularly damning for a state that would rank eighth in the world for carbon dioxide emissions if it were a country, and that polluted nearly twice as much as second-ranked California in 2019.

“The things that NEPA was intended to protect us from — from inordinate displacement, from worse air quality — Texas is failing on all of those metrics,” said Peter Eccles, director of policy and planning at LINK Houston, a transportation advocacy group. “Since TxDOT entered NEPA assignment in 2014, displacements have skyrocketed across Texas, dwarfing the national average in terms of how many households are displaced for freeway projects, as well as the number of counties that are no longer in attainment for criteria pollutants. … It’s not working as intended.”

Highway-related displacements have skyrocketed in Texas compared to the national average since the state was issued a memorandum of understanding (MOU) granting it authority to conduct its now environmental assessments. Graphic: Texas Transportation Coalition.

If the federal government was conducting the NEPA process, advocates argue that Texas might face stricter parameters for what constitutes a “significant” impact of a highway project, rather than letting the state write off families losing their homes and residents getting sick as unfortunate but necessary evils. And maybe, bad projects might even be stopped before they start.

“TxDOT is setting up its own environmental reviews, setting its own parameters, and then self-grading its own performance by the parameters that it sets,” said Bobby Levinski, an attorney with the Save Our Springs Alliance. “And we don’t have that federal oversight that used to exist where, if you did have a disagreement over what the current state of the science is, [you might have] a technical expert at the federal level who could say, ‘No, you didn’t quite do a good enough job looking at, say, this air quality aspect.’

“That check no longer exists,” he continued. “And at the end of the day, they’re going to give themselves an ‘A.’”

NEPA Assignment Under Trump

Levinski and the rest of the coalition acknowledge that some might be wary of handing environmental power back to the federal government — especially with Trump returning to the White House.

Project 2025, which many believe will serve as the incoming president’s playbook, promises to restore regulations limiting environmental review that Trump put in place the last time he was in office, as well as “frame the new regulations to limit the scope for judicial review of agency NEPA analysis and judicial remedies.”

Advocates in Texas, though, say they’re already living in a world where NEPA has been badly watered down — and because of their state’s special authority, Washington was powerless to intervene. Restoring federal oversight, they argue, is a critical first step to making things right, followed by voting in a presidential administration that takes NEPA seriously.

“Here in Texas, we’ve been facing basically a mini-Trump administration, anyway, with our governor,” said Katy Atkiss, facilitator for the Texas Streets Coalition, referring to Gov. Greg Abbott. “He appoints the Texas Transportation Commission, which is basically five old white men — none with transportation experience. So I feel like we’ve been working in a similar environment anyway. We’ve had several conversations with DOT and other federal representatives throughout the course of of the year, and while they are extremely sympathetic, basically, they said, ‘We believe you, but there’s nothing we can do.’”

Until Texas’s NEPA assignment is revoked, all advocates can do is sue to stop bad projects — though with the president picking many of the judges, that’s an increasingly bleak prospect, too.

“With Trump being in office, the courts aren’t getting easier either,” added Levinski. “[And] making the public be the enforcer of NEPA, I think, puts a big onus on the residents of Texas to go up against the giant Goliath that is TxDOT on every single case. … We need some sort of measure of oversight. You can’t just write off the entire state of Texas.”

The members of the Texas Streets coalition acknowledge that getting their state’s NEPA assignment revoked won’t be easy — and if it can’t be done, they hope USDOT will at least make some common-sense changes.

The state might still be allowed do its own environmental assessments, but not on massive highway projects that displace hundreds of residents. The feds also might force the DOT to wait at least 30 days to collect public comment after they make changes to their plans, or submit to “an annual NEPA compliance audit” to ensure they’re not flouting federal laws. At a minimum, they could acknowledge that granting states like Texas the ability to do their own environmental review even as they’re suing to hide their greenhouse gas emissions from the public seems like a pretty obvious flaw in the system.

At the end of the day, though, advocates say we need to address the shortcomings of NEPA itself, which still doesn’t factor in the power of induced demand — and still offers all states too many opportunities to build destructive highways, even when the federal government is grading their projects.

“I think that NEPA assignment and its abuses by TxDOT are a symptom of the larger failings of NEPA as a whole,” added Eccles. “NEPA was very well intentioned at the time [it was written], but certain states like TxDOT have gotten very good at gaming it to rubber stamp projects that they want to do regardless. Contrast that with the NEPA burden that the Federal Transit Administration puts on transit projects; it’s much more rigorous, and it ends up slowing down those projects significantly. We need to have a clearer picture of what projects benefit the environment and which projects harm it.”

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