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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