Texas
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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Top-seeded Texas matched its efficiency with plenty of explosiveness while blasting Northwestern 14-2 Saturday at McCombs Field and cruising into the final day of the NCAA Tournament’s Austin Regionals with a 2-0 record.
A day after leaving a dozen on the bags in a 5-0 win over Siena, Texas (49-7) didn’t strand a single runner while racking up a dozen hits against the Wildcats, including four home runs. That helped ease some frustrations for a Texas squad still miffed about squandering its opportunities at the plate on Friday.
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“After the game yesterday, we had a pretty tough talk about our performance and how we have higher standards for this program,” said second baseman Alyssa Washington. “And yesterday, we just didn’t play to those. So there was just some self-reflection (which) prompted us come back and make a change today.”
Washington, a senior team captain, led the way. She went 3-for-3 at the plate with three runs, three RBIs, and the first of Texas’ four home runs. Designated player Joley Mitchell, centerfielder Kayden Henry and third baseman Mia Scott also had home runs and helped the Longhorns rack up 12 hits.
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Texas coach Mike White said his team played with a renewed sense of urgency, which will bode well as the competition stiffens with each round of the tournament.
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“You can’t afford to come in here and think you’re going just turn up and win,” he said. “It just doesn’t happen that way. These teams are coming here for a reason; they want to win. I think we got ahead of ourselves (on Friday) and we started looking ahead. We didn’t play with the same high energy that we had all year. It’s just getting them to know that ‘Hey, this is this could be our last weekend to play for the season.’ So I liked the energy we had today.”
Citlaly Gutierrez earned the win in the circle after scattering four hits across four innings in the game shortened to five innings in the run-rule game. White said he hopes his players “find some air-conditioning and relax a bit” while they wait to find out Sunday’s opponent.
Saint Francis and Siena faced off in Saturday’s second game, with the winner taking on Northwestern in the third and final game Saturday. Whoever wins that third game will face Texas at noon on Sunday, and that team will need to beat Texas twice to advance to next weekend’s Super Regionals.
WASHINGTON — U.S. Rep. Henry Cuellar insists he has no intention of stepping down since being indicted on federal charges accusing him of taking nearly $600,000 in bribes.
“No, no, no, no, no,” Cuellar told reporters asking if he was contemplating resignation after the indictment was announced May 3. “Everybody’s innocent until proven otherwise and we are going to continue doing our job.”
He stood by that position this week after it was revealed federal prosecutors have secured guilty pleas from three people in connection with the case against him. He and his wife, Imelda Cuellar, are accused of participating in schemes involving bribery, illegal foreign influence and money laundering. Cuellar denies the allegations.
The federal indictment alleges the Democrat from Laredo accepted almost $600,000 in bribes to advance the interests of the former Soviet republic of Azerbaijan and a bank in Mexico.
The most serious charges carry a maximum penalty of 20 years in federal prison.
Former top Cuellar aide Colin Strother and political consultant Florencio Rendon are cooperating with the federal investigation, according to plea agreements filed in March.
Strother’s attorney declined comment. Rendon’s attorney said he could not immediately comment.
The Associated Press reported this week that a third person pleaded guilty May 1 in Houston federal court to acting as an agent for Azerbaijan without registering with federal officials.
CNN confronted Cuellar on Capitol Hill this week about the guilty pleas, but the Texan said he isn’t going anywhere.
“We’re not afraid of the truth,” said Cuellar, who is on the November ballot as he seeks an 11th two-year term.
Other politicians have won reelection with pending indictments, including Ken Paxton, Texas’ Republican attorney general.
Two Republicans, Jay Furman and Lazaro Garza Jr., are competing in a May 28 runoff to determine who will face Cuellar in November.
It is unclear how much Republicans will spend on the race, having seen challengers fall short in previous bids against the incumbent.
Cuellar faced a close call in the 2022 Democratic primary but won by 13.3 percentage points that November.
After the indictment was unsealed, the National Republican Congressional Committee pounced, calling for Cuellar’s fellow Democrats to push for his resignation. U.S. Rep. Dean Phillips, D-Minn., did so, but he’s a striking exception.
House Minority Leader Hakeem Jeffries, D-N.Y., said Thursday he had not rescinded his endorsement of Cuellar and he wanted to give the Texan time and space to “work out his legal situation” without wading into politics.
“I support Henry Cuellar’s right to a trial by jury,” Jeffries said. “He is innocent until proven guilty.”
The George Santos precedent
The NRCC accused Democrats of hypocrisy for pressing to oust U.S. Rep. George Santos, R-N.Y., over his own criminal charges.
U.S. Rep. Colin Allred, D-Dallas, said it’s a sign of a healthy democracy when those in power are held to account. He pointed to an initial failed vote to kick out Santos, which Allred opposed, citing a lack of due process.
Allred joined others in voting for Santos’ successful expulsion on a subsequent vote, after the release of a scathing report by the Ethics Committee that cited “overwhelming evidence” Santos used campaign funds for personal purposes and committed other crimes.
There has been no such report on Cuellar.
“Due process still has to be observed,” Allred said.
U.S. Rep. Jasmine Crockett, D-Dallas, noted Cuellar said he sought and received legal opinions from the Ethics Committee before taking actions cited in the indictment.
“As a criminal defense attorney, I always go with the presumption of innocence,” she said. “So I’m hoping for the best.”
Republicans not going after Cuellar
Many Republicans in Congress, including those from Texas, also are inclined to let the legal process play out for Cuellar, an occasional political ally.
After news of the indictment broke, several Texas Republicans cited Cuellar’s record of working on bipartisan measures and his penchant for breaking with his party over his opposition to abortion rights, support for tougher border security measures and other issues.
“I know Henry to be a really good man, and for whatever he’s going through, I feel sorry for him,” said U.S. Rep. Roger Williams, R-Willow Park. “He’s well-liked. He’s a good man and he thinks a lot like conservatives do on certain issues.”
Williams said he has been Cuellar’s friend for many years and remains one, noting that he served as Texas secretary of state after Cuellar held the position.
U.S. Rep. Ronny Jackson, R-Amarillo, also called the Democrat a friend.
“I know they’ve been coming after him for a while,” Jackson said. “They come after him, in part, because he does on occasion vote with us.”
U.S. Rep. August Pfluger, R-San Angelo, called Cuellar a “great member to work with” on issues from energy to agriculture.
Across the Capitol, both Republican U.S. senators from Texas spoke positively about working with Cuellar on various issues.
Sen. Ted Cruz said the allegations are “serious” and “concerning,” but he also highlighted issues of agreement, such as streamlining approval of new U.S.-Mexico bridges across the Rio Grande and designating a new interstate corridor running from Laredo through West Texas.
“He has been a strong partner fighting for jobs in Texas, and together we’ve gotten a lot accomplished for the state,” Cruz said.
Cruz, who wrote a book accusing Democrats of “weaponizing” the justice system, said it’s fair to ask whether the case against Cuellar is politically motivated.
U.S. Sen. John Cornyn said he’s enjoyed working with Cuellar and feels for him, but the matter is up to the courts.
“Henry has always been a bipartisan individual and he’s one of the very few pro-life [Democratic] House members and frankly, you know, you can see where he may be in disfavor by the current administration,” Cornyn said.
COLLEGE STATION — It took one inning Friday evening for the score between the Texas A&M Aggies and Arkansas Razorbacks to exceed what it was in the series opener.
After a complete pitcher’s battle between both squads Thursday night amidst a rain delay, Game 2 of the SEC West showdown was seemingly going to be much simpler to complete. Weather wasn’t going to be at play and 7 p.m. CST was truly an accurate assessment for the game’s first pitch.
For the Aggies, Olsen Field was even more packed than it was the night before, setting them up to have an even better atmosphere as they looked to secure a series victory and keep themselves in contention for their half of the SEC. Arkansas had some ground to make up.
The thing was, it did.
The Razorbacks came out with their bats swinging, keeping the contest interesting on offense despite allowing some true — that is, non-walking — points on defense. In the end, they got the best of their hosts, rallying behind a three-run home run from junior Hudson White to put themselves in front and take control of the momentum, ultimately notching a 6-3 road victory.
From the jump, the Aggies — starting Brad Rudis instead of the anticipated Justin Lamkin — started off on a positive note. They registered a strikeout and two flyouts to end their defensive portion of the first inning rather quickly before scoring two runs in the bottom half behind Braden Montgomery’s 25th home run of the season, which put them up 2-0.
From there, the Razorbacks began chipping away at the lead, notching two one-run innings in the second and third to tie the game up headed to the fourth. Where Game 1 was a pitching battle, Game 2 was shaping up to be a battle of the bats. And that continued.
Texas A&M added another run to its total in the bottom of the fourth after Gavin Grahovac doubled on the first pitch he was thrown. From there, Jace LaViolette singled to right field with enough distance to bring in Grahovac. That run signaled the bubbles across Blue Bell Park and gave the Aggies the lead once more, but unfortunately for them, it was the last run they would score that night.
The fifth and sixth innings saw little action besides Arkansas’ methodical base approach. After a single from Ben McLaughlin brought in Peyton Stovall — who singled on his at-bat — to tie the game at three runs a piece, the Razorbacks stalled out before being able to run up the score anymore.
Three runs each was how the scoreboard held for the remainder of the sixth and through the seventh, but the eighth inning was where the most action happened all game.
Stovall ended up being the lead-off single on his second pitch of the at-bat, which Wehiwa Aloy followed with a double. Stovall moved to third, but it didn’t matter. Hudson White came to bat and hit a home run to deep left field to both double the Aggies’ score and his team’s chances at a win.
Texas A&M made nothing of its eighth-inning offensive, and Arkansas followed suit at the top of the ninth. After that third out, the Aggies’ War Hymm played and the entire upper deck of fans got on their feet to watch the final three outs of the ball game.
Ali Camarillo led things off, striking out looking after a full count, followed by Sorrell, who never landed a ball as he grounded out to Arkansas’ shortstop. Travis Chesnut — batting bottom of the Aggies’ order — was his team’s last chance, but couldn’t get the job done, flying out to left field to give the Razorbacks a 6-3 win on the road.
With the loss, the Texas A&M Aggies fall two games behind the Arkansas Razorbacks in the SEC West standings with just one game left to play at 18-11, which officially ousts them from contention for the conference title.
Next up for both squads is one more matchup at Olsen Field with the series on the line. The winner there will certainly put themselves in a solid position to land a top-3 seed in the NCAA Tournament.
First pitch for Game 3 is scheduled for 2 p.m. CST Saturday afternoon.
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