Opposition Brief — James Calvert, Petitioner v. Texas
Supreme Court briefFeb 19, 2021
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No. 20-701
IN THE
Supreme Court of the United States
_________________________
JAMES CALVERT,
Petitioner,
vs.
STATE OF TEXAS
Respondent.
_________________________
On Petition for Writ of Certiorari to the
Texas Court of Criminal Appeals
_________________________
RESPONDENT’S BRIEF IN OPPOSITION
_________________________
KEN PAXTON
Attorney General of Texas
BRENT WEBSTER
First Assistant Attorney General
JOSH RENO
Acting Deputy Attorney General
for Criminal Justice
EDWARD MARSHALL
Chief, Criminal Appeals Division
JENNIFER WREN MORRIS
Assistant Attorney General
Counsel of Record
Counsel for Respondent
i
CAPITAL CASE
QUESTIONS PRESENTED
1.
Does the Sixth Amendment require trial courts to
override a defendant’s Faretta1 rights?
2.
Does the Eighth Amendment require a new trial
where the State introduces marginally relevant
future-dangerousness evidence, even if harmless?
3.
Does a court deputy’s activation of a defendant’s
shock cuff outside the presence of the jury
constitute structural error, requiring a new trial?
1
Faretta v. California, 422 U.S. 806 (1975).
ii
TABLE OF CONTENTS
CAPITAL CASE, QUESTIONS PRESENTED ........................... I
TABLE OF CONTENTS ....................................................... ii
INDEX OF AUTHORITIES .................................................. iv
BRIEF IN OPPOSITION........................................................1
STATEMENT OF THE CASE .................................................1
I.
FACTS OF THE CRIME .............................................1
II.
PUNISHMENT EVIDENCE ........................................3
A.
THE STATE'S PUNISHMENT CASE .................3
B.
CALVERT’S CASE IN MITIGATION .................6
III.
THE JURY INSTRUCTIONS AND VERDICT .................6
IV.
CALVERT’S SELF REPRESENTATION ........................6
A.
CALVERT'S WAIVER OF COUNSEL .................6
B.
PRETRIAL PROCEEDINGS .............................9
C.
THE TRIAL .................................................11
V.
COMPETENCY HEARING........................................13
VI.
DIRECT APPEAL ....................................................14
REASONS TO DENY THE PETITION ...................................15
I.
CALVERT FAILS TO JUSTIFY A GRANT OF WRIT
OF CERTIORARI. ....................................................15
II.
CALVERT’S SIXTH AMENDMENT RIGHTS WERE NOT
VIOLATED WHEN HE EXERCISED HIS FARETTA
RIGHTS. ................................................................15
iii
A.
B.
III.
1.
FARETTA AND ITS PROGENY ............17
2.
EDWARDS IS PERMISSIVE. ...............18
THE STATES’ APPLICATION OF EDWARDS IS
NOT A “CONFLICT.” ....................................23
THE EIGHTH AMENDMENT’S INDIVIDUALIZEDSENTENCING REQUIREMENT WAS SATISFIED. ......27
A.
IV
THE CCA PROPERLY APPLIED EDWARDS
WHEN IT REJECTED CALVERT’S CLAIM. .....16
THE CCA PROPERLY APPLIED THIS COURT’S
PRECEDENT. ..............................................27
THE COURTROOM DEPUTIES’ ACTIVATION OF
CALVERT’S SHOCK CUFF OUTSIDE THE JURY’S
PRESENCE IS NOT STRUCTURAL ERROR. ..............30
A.
THE CCA’S HARMLESS ERROR ANALYSIS
CONFIRMS THAT THE ERROR IS NOT
STRUCTURAL. ............................................30
CONCLUSION ..............................................................34
iv
INDEX OF AUTHORITIES
Cases
Page
Arizona v. Fulminante, 499 U.S. 279 (1991) ................31
Barefoot v. Estelle, 463 U.S. 880 (1983)........................29
Blystone v. Pennsylvania, 494 U.S. 299 (1990) ............28
Burton v. Davis, 816 F.3d 1132 (9th Cir. 2016) ...........21
Caperton v. A.T. Massey Coal Co.,
556 U.S. 868 (2009)....................................................30
Chadwick v. State, 309 S.W.3d 558 (Tex. Crim. App.
2010) .....................................................................24, 26
Cook v. Schriro, No. 97-cv-00146-RCB, 2006 WL
842276 (D. Ariz. Mar. 28, 2006) ................................21
Davis v. State, 484 S.W.3d 579 (Tex. App.—Fort Worth
2016) .....................................................................25, 26
Duncan v. United States, No. 2:17-cv-00091-EJL, 2019
WL 1320039 (D. Idaho Mar. 22, 2019) ......................22
Dusky v. United States, 362 U.S. 402 (1960)................17
Edwards, 554 U.S. ................................................ passim
Faretta v. California, 422 U.S. 806 (1975) ........... passim
Godinez v. Moran, 509 U.S. 389 (1993) ...... 17, 22, 23, 24
In re JG, Nos. 04-13-00825-cv & 04-13-00827-cv, 2014
WL 4627599 (App Ct.—San Antonio, Sept. 17, 2014)
..............................................................................24, 26
Jones v. United States, 527 U.S. 373 (1999).................28
Jurek v. Texas, 428 U.S. 262 (1976) .............................27
v
Kansas v. Carr, 577 U.S. 108 (2016) .......... 28, 29, 30, 31
Kansas v. Marsh, 548 U.S. 163 (2006) .........................28
Lay v. Trammell, 2015 WL 5838853 (N.D. Okla. Oct. 7,
2015) ...........................................................................22
Lehhard v. Wolff, 44 U.S. 807 .......................................21
Lewis v. State, 532 S.W.3d 423 (Tex. Crim. App. 2016)
....................................................................................24
Loor v. State, 240 So.3d 136 (Dist. Ct. App. 3d 2018) ..26
Mathis v. State, 271 P.3d 67 (Okla. Crim. App. 2012) .25
McKaskle v. Wiggins, 465 U.S. 168 (1984) .............17, 21
Nelson v. Alabama, 292 F.3d 1291 (11th Cir. 2002) ....21
Payne v. Tennessee, 501 U.S. 808 (1991) ......................29
People v. Brooks, 809 N.W.2d 644 (Mich. Ct. App. 2011)
....................................................................................25
Randle v. State, No. 10-19-00183-CR, 2020 WL
4518599 (Ct. App.—Waco Aug. 5, 2020) .............24, 26
Rochin v. California, 342 U.S. 165 ...............................30
Romano v. Oklahoma, 512 U.S. 1 (1994) .....................28
Shorthill v. State, 354 P.3d 1093 (Alaska Ct. App. 2015)
....................................................................................26
Silagay v. Peters, 905 F.2d 986 .....................................21
Simpson v. Battaglia, 458 F.3d 585 (7th Cir. 2006) ....21
State v. Barnes, 753 S.E.2d 545 (S.C. 2014) .................25
State v. Brown, 365 N.W.2d (Wis. 2015) .....................26
State v. Cruz, 109 A.3d 381 (R.I. 2015) ........................25
vi
State v. McCullah, 829 N.W.2d 191 (Iowa Ct. App.
2013) ...........................................................................26
Stewart-Bey v. State, 96 A.3d 825 (Md. Ct. Spec. App.
2014) ...........................................................................25
Sullivan v. Louisiana, 508 U.S. 275 (1993)..................32
Taylor v. Illinois, 484 U.S. 400 (1988) ..........................17
Townes v. Murray, 68 F.3d 840 (4th Cir. 1995) ...........21
United States v. Bernard, 708 F.3d 583 (4th Cir. 2013)
....................................................................................18
United States v. Berry, 565 F.3d 385 (7th Cir. 2009) ...18
United States v. Booker, 728 F.3d 535 (6th Cir. 2013).30
United States v. Davis, 285 F.3d 378 (5th Cir. 2001) ..21
United States v. DeShazer, 554 F.3d 1281 (10th Cir.
2009) ...........................................................................18
United States v. Ferguson, 560 F.3d 1060 (9th Cir.
2009) ...........................................................................18
United States v. Fields, 761 F.3d 443 (5th Cir. 2014) ..18
United States v. McKinney, 737 F.3d 773 (D.C. 2013) .26
United States v. Posadas-Aguilera, 336 Fed. App’x 970
(11th Cir. 2009) ..........................................................18
United States v. Tucci-Jarraf, 939 F.3d 790 (6th Cir.
2019) ...........................................................................18
United States v. Turner, 644 F.3d 713 (8th Cir. 2011) 18
United States v. VanHoesen, 450 Fed. App’x 57 (2d Cir.
2011) ...........................................................................18
vii
Weaver v. Massachusetts, 137 S. Ct. 1899 (2017) .31, 32,
34
Williams v. Pennsylvania, 136 S. Ct. 1899 (2016) .......32
Williams v. United States, 137 A.3d 154 (D.C. 2016) ..25
Withrow v. Larkin, 421 U.S. 35 (1975) .........................31
1
BRIEF IN OPPOSITION
Petitioner James Calvert requested to represent
himself in his capital murder trial. After a forensic
psychiatrist found he was competent to do so, the trial
court accepted his waiver of counsel. Calvert
represented himself through approximately fifty
pretrial hearings, voir dire, and roughly three weeks of
the jury trial. Although not his best advocate, he
demonstrated an understanding of case law and the trial
process. He also engaged in obstructionist conduct and
defied the trial court’s orders, which ultimately led to
the revocation of his pro se status and to a court deputy’s
activation of his shock cuff during a jury recess.
Calvert claims that the trial court violated his
Sixth and Eighth Amendment rights and that the
deputy’s activation of the shock cuff was structural
error. But in each case, the purported violations assume
facts the record refutes. And in each case, his arguments
are based in his personal sense of justice, which cannot
be reconciled with this Court’s precedent. The petition
should be denied.
STATEMENT OF THE CASE
I.
FACTS OF THE CRIME
Calvert married Jelena in 2004, and within four
years, they had two children together. See 129 RR 133;
State Ex. 27. Over the course of their marriage, Calvert
threatened to kill Jelena, and she became increasingly
fearful that he would. 129 RR 38–40. They divorced in
2010. 129 RR 132–33; State Ex. 27.
In 2012, Jelena sought and obtained a change in
custody, allowing her to move with the children to
2
Houston. 128 RR 185–87; 129 RR 135. Twelve days later,
after a series of phone calls and text messages from
Calvert, Jelena told four people she was afraid Calvert
was going to hurt her. 128 RR 142, 145; 129 RR 38–50,
83–84; 132 RR 143–69, 184; 135 RR 115–16. Shortly
thereafter, she was murdered. See 129 RR 65; 132 RR
142, 171–76; 137 RR 23; 158 RR 165.
The evidence showed that someone broke into
Jelena’s home,2 and shot her six times in front of her
then-four-year old son, see 128 RR 54–65; 132 RR 135;
153 RR 73; 158 RR 16–40—in the back, then after she
fell, in the abdomen, arm, and, finally, the back of the
head. 158 RR 110. Within minutes of the gunshots, a
man who looked like Calvert was seen leaving her home
carrying their son. 132 RR 73–83; 137 RR 23–35.
Calvert fled with his son, stopping at McDonald’s
restaurants along the way, to connect to WiFi to search
Jelena’s murder and related Amber Alerts. 138 RR 144–
81; 139 RR 163–66; 159 RR 120–39; State Ex. 147. That
evening, Calvert engaged the police in a high-speed
chase in West Monroe, Louisiana. 139 RR 111–14, 145–
47; 140 RR 22, 180–81; 141 RR 82–89, 120; 142 RR 90;
State Exs. 149, 151, 157 164 & 165.
When the police finally caught Calvert, they
removed the loaded murder weapon from his lap and
physically extracted him from his car. 139 RR 164–66;
140 RR 168–69; 141 RR 89–96; 148 RR 97–98, 100–05,
113–14. Another fully loaded pistol was found on the
floorboard in front of his son, and four more guns in the
2
132 RR 109; 153 RR 71.
3
trunk. 140 RR 21; 141 RR 38–39, 96; 149 RR 40–45, 55–
65, 72–76, 96–97, 129–30; 150 RR 46–47, 132, 133, 135,
138, 148, 153, 170, 179; 153 RR 90–92. Jelena’s phone
was also was also found in his car. 128 RR 153, 155; 142
RR 110; 153 RR 91.
II.
PUNISHMENT EVIDENCE
A. THE STATE’S PUNISHMENT CASE
The State called twenty-four witnesses, twentytwo of whom testified to Calvert’s character.
Thirteen Smith County jail employees testified
about their experiences with Calvert. They described
him as “irate and combative,”3 “manipulative,”4
“controlling,”5 “difficult,”6 “disrespectful,”7 “aggressive,”8
“verbally abusive,”9 “non-compliant,”10 “high risk,”11 and
“dangerous.”12 They supported their characterizations of
him with specific experiences: For example, Calvert
actively resisted officers’ attempts to move him,
requiring them to carry him. 162 RR 46, 70, 74, 78–80,
3
162 RR 45; 163 RR 64.
4
162 RR 105, 131, 147; 163 RR 63.
5
162 RR 129, 131, 150; 163 RR 64; 164 RR 164, 174, 196.
6
162 RR 142; 163 RR 63, 65.
7
162 RR 148; 163 RR 27, 61, 64; 164 RR 215.
8
164 RR 208.
9
162 RR 70.
10
162 RR 70, 143; 164 RR 196, 208; 162 RR 102; 164 RR 164.
11
162 RR 102.
12
162 RR 105, 143; 163 RR 66; 164 RR 237.
4
87–88, 103–04. He kicked his leg brace at a deputy, so
that it hit the deputy. 164 RR 198–201. Calvert called
the officers racial slurs and other names, got in their
faces, threatened them, and ordered them around. 162
RR 69, 74, 88–98; 163 RR 10, 12–13, 36, 52–55, 64, 98;
164 RR 176–77, 190, 198–201, 224. He stole court
exhibits. 163 RR 12. He had his family members send
packages that appeared to be from Amazon, allowing
him to bypass the jail’s search policies. 164 RR 134–35.
He was caught with a handcuff key and a razor blade,
along with other dangerous contraband. 162 RR 29–34,
36–37, 101–02. On cross-examination, though, defense
counsel elicited from jail personnel that Calvert did not
assault anyone while awaiting trial. E.g., 162 RR 114,
122; 163 RR 18, 82–83.
The State also called two of Calvert’s exgirlfriends and his first ex-wife. Calvert’s ex-girlfriends
testified generally to his controlling nature and
misogyny. 165 RR 38–43; 167 RR 97–114. Calvert’s exwife, Deidre (“Dee Dee”) Adams, described him as
“extremely
intelligent”
but
“controlling”
and
“manipulative,” with “an explosive temper.” 165 RR 91.
Dee testified that Calvert threatened to kill her while
holding a gun to her head and beat her until she could
not move. 165 RR 100–02, 112–13.
Calvert’s sister, Debbie Campbell, testified that
she believed her brother was dangerous, 166 RR 94. She
described him as “very intelligent, . . . controlling and
manipulative.” 166 RR 89. She was concerned he was
going to “lose it” and “shoot people” before he did. 167
RR 54. Calvert called Debbie once, threatening to shoot
his first ex-wife, Dee and her family if they stepped foot
5
on his lawn. Calvert also made veiled threats to Debbie
based on her decision to testify in his family proceedings,
suggesting that Debbie would not see her nephew again
or that something would happen to her sick husband.
166 RR 86; 167 RR 34.
Three of Calvert’s acquaintances who befriended
Jelena when she moved to Tyler also testified. They
observed Jelena to be afraid of Calvert early on and tried
to help her escape. See e.g., 166 RR 52–54; 166 RR 56;
167 RR 130–31.
The State also called two mental health experts,
Drs. Edward Gripon and Michael Arambula. Dr. Gripon
observed Calvert’s personality to be controlling,
excessive, overly organized, rigid, and defiant. 167 RR
196. Because personality characteristics are often
cemented by eighteen years of age, the doctor explained
that Calvert’s would likely follow him. 167 RR 201–02.
The doctor also spoke to Calvert’s history of, and
treatment for, depression and anxiety, 167 RR 170–71,
but explained that neither affected his ability to control
his behavior. Dr. Arambula’s conclusions were similar.
168 RR 17–126. He testified that Calvert had a severe
personality pathology that would present special risks
wherever he went. 168 RR 41–42.
Finally, the State called Warden Stephen Bryant
and retired prison guard David Logan to testify to the
prison environment and the opportunity for violence
therein. Warden Stephen Bryant testified generally
about the prison system and where Calvert would be
housed in if he received a life sentence. 164 RR 65–73.
Logan testified that attacks on prison guards were
frequent and spoke of one he endured. 164 RR 12–13.
6
After an inmate managed to free himself from his
handcuffs, 164 RR 25–26, he stabbed Logan in the eye
with a pencil leaving Logan disabled and blind in that
eye, 164 RR 28.
B. CALVERT’S CASE IN MITIGATION
In mitigation, Calvert called his first cousin,
Jason Calvert, 169 RR 10. He and Calvert were very
close as children and continued their relationship as
adults. 169 RR 13–16. Jason testified that Calvert was a
“great” father, 169 RR 18, albeit “ornery” like all the
Calvert men. 169 RR 30.
III.
THE JURY INSTRUCTIONS AND VERDICT
Before submitting the special issues, the trial
court twice instructed the jury to consider Calvert’s
circumstances and character to the extent that it
mitigated against the death penalty. 171 RR 7, 11. Still,
the jury found Calvert would probably commit acts of
violence posing a continuing threat to society and no
mitigating evidence warranted a life sentence. 171 RR
157–58. The trial court sentenced Calvert to death. 171
RR 166–67.
IV.
CALVERT’S SELF REPRESENTATION
A. CALVERT’S WAIVER OF COUNSEL
Jeffrey Haas and Jason Cassel were appointed to
represent Calvert in November and December 2012. CR
22. About three months after his appointment, Haas
moved to withdraw, CR 79–80, and at a hearing on the
motion, he described his and Calvert’s strategic
disagreement over pursuing an insanity defense and
whether to file for change of venue. 5 RR 9–12. The court
7
denied the motion to withdraw and advised against
representing himself. 5 RR 28. Haas and Cassel
remained counsel. See 5 RR 24–29.
A year later, Haas again advised the court that
Calvert wished to proceed pro se, and Calvert again
confirmed. 12 RR 3–4. The court appointed Dr. Mitchell
Dunn to examine Calvert to determine whether he had
the ability to knowingly, intelligently, and competently
waive his right to counsel. 12 RR 5–10; 2 Supp. CR 119.
Calvert participated in the evaluation and stated he
understood it was “to make sure he [didn’t] have a
serious mental illness that might incapacitate [him] to
represent [him]self.” 2 Supp. CR 119. Based on an
almost-three-hour interview and Calvert’s mental
health history, Dr. Dunn concluded Calvert did not have
any such illness:
Although Mr. Calvert has suffered from
symptoms of a major depressive disorder,
current symptoms secondary to that illness
do not have a significant impact on his dayto-day functioning. In addition, symptoms
of mental illness do not appear to be
impacting his reasoning with regard to
making a decision to represent himself.
See 160 RR 23 (quoting Dr. Dunn’s report). Dr. Dunn
reported that Calvert wanted to represent himself to
have “more flexibility of doing what [he wants] to do.”
2 Supp. CR 125. Finally, Dr. Dunn opined “to a
reasonable degree of psychiatric certainty that [Calvert
was] competent to waive his right to counsel and to
represent himself.” 2 Supp. CR 125.
8
At a subsequent hearing on his request to proceed
pro se, Calvert expressed his dissatisfaction with Haas’s
management of his case—this time, complaining about
the team of investigators and the failure to investigate
issues he wanted to pursue. 13 RR 6–8. Haas agreed that
his and Calvert’s relationship was strained because
Calvert “ha[d] ideas of what he want[ed] to do, how he
want[ed] to do it and when he want[ed] to do it that
[Haas] . . . disagree[d] with.” Haas explained to Calvert:
You know the things you’re wanting me to
do, when to do it, how to do it, I’m not going
to do. And if you want these things done,
then you’re either going to have to find
other counsel who will do it, which I
seriously doubt, or you can act as your own
counsel, and if you’re your own counsel you
can have total control over the things you
want to do and how.
13 RR 15. The trial judge asked Calvert and counsel
whether “an effort could be made to see if any of the[]
matters could be resolved” so Calvert could pursue
“some other course” besides representing himself. 13 RR
47. Calvert declined. 15 RR 36–51.
The judge reviewed the indictment and elicited
Calvert’s acknowledgement that he understood the
charges against him. 14 RR 5–8. In response to the
judge’s admonishments and questioning, Calvert
showed his understanding and familiarity with the
sentencing process (including the special issues);
pretrial motions (including grounds for suppression); the
jury selection process (including challenges for cause
and peremptory strikes and the disadvantages he would
9
face during the process); the definition of mitigating
evidence; the types of experts that could testify at the
sentencing phase; the appeal process; the writ process;
his responsibility for drafting jury charges; and the high
degree of “trial ability,” qualifications, and experience
generally required for an attorney to defend a capital
case. 14 RR 9–54.
The judge reviewed the process of crossexamining expert witnesses, advising Calvert that
defense counsel knew how to do it. 14 RR 33, 38. The
judge repeatedly emphasized Calvert would have to
make proper objections in order to keep inadmissible
testimony out. 14 RR 33–36. The judge noted that
Calvert would be responsible for finding experts and
other witnesses and having them available to testify. 14
RR 39–42. The judge emphasized the disadvantages that
Calvert would face as an incarcerated pro se defendant,
as opposed to defense counsel who could “do all that.” 14
RR 43. Calvert reiterated that he understood. 14 RR 43.
Based on Dr. Dunn’s report, the judge’s own
communications with Calvert, and defense counsel’s
representations, the trial judge concluded that Calvert
was competent to waive his right to counsel and
represent himself. See 14 RR. Trial on the merits was
scheduled to begin eighteen months later.
B. PRETRIAL PROCEEDINGS
For security reasons, Calvert wore a leg brace
that limited his mobility during some of the pretrial
proceedings. See 38 RR 57. At a hearing on October 2,
2014, Calvert requested that the trial court utilize a
shock cuff at trial instead of the leg brace. 38 RR 142–
45. The trial court granted his request. 38 RR 143.
10
Though not explained in the record, it appears Calvert
wore a shock cuff and a leg brace during trial. Pet. App’x
17a.
Transport to and from jail was during pretrial
proceedings was problematic. On one occasion, Calvert
got in officers’ faces and yelled at them, calling one a
racial slur and the other stupid. He kicked his leg brace
off so that it hit one of the officers. On another occasion,
Calvert refused to be handcuffed when it was time to
return to jail, grabbing counsel table and stiffening his
arms. See 162 RR 103–04, 122–23, 134–35. Unable to
move his arms, officers activated his shock cuff. 164 RR
206. Calvert yelled and broke his hold on the table but
continued resisting and fighting while four officers
worked together to handcuff and transport him. When
Calvert returned to jail, he declined to visit the medical
clinic, stating he “was okay” and “[didn’t] think [he]
needed to.” Pet. App’x 17a–18a. Thereafter, Calvert
goaded one of the deputies about activating the shock
cuff during the trial, “I hope wearing this shock bracelet
that I don’t do anything in court to make you shock me.”
164 RR 172.
“Pretrial proceedings [also] became extremely
protracted and difficult.” App. Brief 11. Calvert stole
courtroom exhibits. 70 RR 14, 23, 27, 63, 66–69, 88, 97,
122–30; 132 RR 7–11. He disregarded, defied, and/or
argued with court orders. E.g., 54 RR 26–29; cf. 118 RR
10–16. He abused his lap top privileges and then
repeatedly complained about his loss thereof. 39 RR 51–
64, 146–70, 181–214; 40 RR 43–118; 41 RR 17–71; 43 RR
9–91. He filed multiple untimely and unwarranted
motions for recusal. 37 RR 22, 48–49, 72, 75, 79, 96, 102–
11
04, 110–12, 126, 168. He lied to the court that the State
had altered exhibits or failed to serve him. E.g., 30 RR
119–21. He disrespected the judge, 66 RR 84–85 (“I’m
done with you, Skeen.”), and he refused to answer the
court’s questions, 64 RR 39–48. Exasperated with
Calvert’s defiance, disrespect, and obstructionist
conduct, the court admonished him that he would lose
his right to represent himself if he continued. E.g., 66
RR; 67 RR; 70 RR.
C. THE TRIAL
Calvert intended to drag the trial out, see 146 RR
194–99, and he did. He made constant objections to
disrupt the State’s presentation of evidence. E.g., 148
RR; 149 RR; 150 RR. He repeatedly re-urged motions
and reasserted objections that the court had clearly
denied and overruled again and again. E.g., 151 RR 9–
11; 154 RR 27-30, 39–40; 155 RR 43, 140, 145, 149
Calvert intended to introduce error into the
proceedings, see, e.g., 25 RR 119; 169 RR 92–93, 99, and
he certainly tried to do so. When the State agreed to
withdraw evidence based on Calvert’s motions to
exclude, he turned around and attempted to introduce
that very evidence to suggest that the State was hiding
it. E.g., 152 RR 77–78, 112–16; 153 RR 10–11; 155 RR
64–85. He raised issues in front of the jury after
explicitly being ordered not to. E.g., 146 RR 196–201;
154 RR 41–43; 155 RR 149. He disregarded the court
when it sustained the States objections. 152 RR 77; 155
RR 66–67. He misrepresented what the evidence he had
would show to suggest the State had tampered with it.
E.g., 155 RR 11–13, 171–72. He falsely asserted that the
court reporters were “under investigation.” 154 RR 29–
12
30. He falsely accused a witness of planting evidence.
155 RR 51, 189. He repeatedly misrepresented that he
had not received discovery when the record showed he
had. E.g., 151 RR 81–82; 152 RR 132–33; 153 RR 11020; 154 RR 9–19, 34, 36-39; 155 RR 183.
Whether he intended it or not, Calvert’s
disrespect for the trial court never ceased. He refused to
answer the court’s questions. 147 RR 74–80. He refused
to stand when the court instructed him to do so. 147 RR
45, 73; 151 RR 104, 119, 143; 152 RR 60; 155 RR 145,
148, 163, 178, 221. He told the trial court that it did not
do what it explicitly said that it just did. 151 RR 47; 154
RR 39–41. And he repeatedly argued with and
interrupted the court. 151 RR 89; 154 RR 15–16.
After about three weeks of enduring Calvert’s
trial behavior, the judge conducted a hearing outside of
the jury’s presence. The judge asked Calvert where he
was going in his last cross-examination. 155 RR 221.
Despite repeated admonishments to stand up when
addressing the court, Calvert responded from his chair.
The court instructed Calvert to stand up, and three
times, deputies urged him to follow the court’s order. 155
RR 221. When Calvert refused, a bailiff activated the
shock cuff on his ankle, to which Calvert responded, “I’m
sure the Court very much enjoyed that.” 155 RR 221.
At that point, the judge terminated Calvert’s pro
se status:
[F]or all the reasons this Court’s gone over,
all the admonishments I’ve given you . . . .
I have warned you . . . . [Y]our right to
represent yourself is not just terminated on
that type [of] disrespect for this Court, it’s
13
terminated on everything I’ve put up with
from you right up through the last set of
admonishments I’ve given you. . . . [Y]our
right to represent yourself, based on all
your conduct, all the admonishments I’ve
given you, right up to right now, your right
to represent yourself is terminated.
155 RR 222–224. The trial court reappointed Jeff Haas
and Jason Cassel as counsel. The next morning,
September 16, the court continued the case until
September 28 to give counsel time to prepare for trial.
156 RR 12–13. When the judge informed the jury of the
new schedule and explained that defense counsel would
be representing Calvert when trial resumed, Calvert
interjected, “And the jury should know that was not
voluntary.” 156 RR 13. The judge told him to be quiet
and sit down, but Calvert interrupted two more times to
reiterate his disagreement. 156 RR 13–14.
V.
COMPETENCY HEARING
On September 24, 2015, Haas moved for an
informal inquiry into Calvert’s competency to stand
trial. The trial judge held a hearing on the motion on
September 30th. 160 RR. Defense counsel highlighted
poor decisions Calvert made while representing himself
as evidence that he lacked a rational understanding of
the proceedings. 160 RR 13–16. The State called Drs.
Arambula and Gripon. Dr. Arambula reviewed Calvert’s
medical records and found that, over the past two
decades, Calvert’s depression was mild to moderate,
never serious. And during the first two weeks of the
trial, Dr. Arambula did not observe Calvert to have any
elements of depression, nor any conduct consistent with
14
irrational thinking due to mental illness. 160 RR 49–55.
To the contrary, the doctor observed that Calvert “had
sufficient skills to try to strategize, recognized what he
was up against and, in turn, try to defend himself.” 160
RR 61. Dr. Gripon agreed. 160 RR 78–79.
The trial court found Calvert competent to stand
trial. 160 RR 109. It went on to clarify that its decision
to terminate his pro se status had nothing to do with his
competency to represent himself at trial. 160 RR 113,
116. The trial went on, with Haas and Cassel as counsel.
VI.
DIRECT APPEAL
On direct appeal, Calvert challenged the trial
court’s rulings and asked the Court of Criminal Appeals
(CCA) to limit this Court’s holdings. Pertinent here, he
asserted that (1) the trial court violated due process
when it allowed him to be shocked during trial for his
failure to maintain proper decorum, App. Brief 45–56;
(2) the CCA should limit Faretta’s holding to say that it
does not apply to defendants in capital cases, 58–61; (3)
the trial court erred when it found him competent to
waive counsel despite his obsessive compulsive
personality disorder, 61–74; (4) the trial court
committed reversible error and violated the Eighth
Amendment when it admitted the State’s evidence of
prison violence during the punishment phase of his trial,
190–200. The CCA rejected his claims for reasons
discussed in detail below.
15
REASONS TO DENY THE PETITION
I.
CALVERT FAILS TO JUSTIFY A GRANT OF WRIT OF
CERTIORARI.
At the outset, Calvert fails to provide justification
for granting a writ of certiorari. He does not allege a
circuit split. And while he calls his issues important and
alleges a conflict amongst state courts of last resort, the
cases he relies upon undermine his allegations on both.
This Court’s precedent provides clear answers to the
questions he poses, and state and circuit courts are
applying it without issue. What remains is Calvert’s
implied disagreement with the CCA’s factual findings
and complaints about this Court’s precedent as it stands.
Driven by his perception of his trial and his perception
of justice, he asks this Court to review and summarily
reverse the CCA because (1) it declined to interpret
Edwards’s permissive holding as mandatory; (2) it
declined to expand the Eighth Amendment’s individual
sentencing requirement to exclude evidence; and (3) it
declined to add a new category of structural error for a
claim amenable to harmless error analysis. With no
courts on his side, the only conflict he poses is between
him and the Court. Not the type of conflict that warrants
review, see Sup. Ct. R. 10(a)–(c), this Court should deny
Calvert’s petition. And if not for that reason, there are
more below.
II.
CALVERT’S SIXTH AMENDMENT RIGHTS WERE
NOT VIOLATED WHEN HE EXERCISED HIS
FARETTA RIGHTS.
Calvert argues that the trial court’s acceptance of
his waiver of counsel violated his Sixth Amendment
right to counsel because he was mentally ill and unable
16
to represent himself in his capital case. Pet. 14–23. From
there, he argues that Edwards’s rationale does not allow
state courts to honor such waivers. 14–19. Finally, he
urges the Court to grant certiorari based upon a conflict
amongst the states in their interpretation of Edwards.
Pet. 20–23. But his factual allegations are refuted by the
record, his legal arguments by the Court’s precedent,
and the purported conflict by the cases he cites (and
many more).
A. THE CCA PROPERLY APPLIED EDWARDS WHEN
IT REJECTED CALVERT’S CLAIM.
Calvert claimed in the CCA that the trial court
violated his Sixth Amendment rights when it allowed
him to represent himself. App. Brief 58–89. The CCA
rejected his claim for several reasons. Among them was
that the record contained “no evidence that [he] was
incompetent to exercise his right to self-representation.”
Pet. App’x 46a. Also pertinent, the lower court rejected
Calvert’s contention that Edwards requires trial courts
to override Faretta rights, explaining that it only gives
them permission to do so. Pet. App’x 45a.
Calvert bypasses the CCA’s factual findings,
replacing the doctors’ and the trial court’s assessments
of his mental health with allegations that appear to be
based on a different trial. Citing a few objections and
cross-examinations, Calvert calls his trial a “continual
demonstration of [his] bizarre behavior before the jury.”
See Pet. 14. From there, he faults the CCA for declining
to interpret Edwards to require the trial court to
override his Faretta rights, as a personality-disordered
defendant in a capital murder trial. See Pet. 6, 14–17.
17
1. FARETTA AND ITS PROGENY
The Sixth Amendment does not “compel a
defendant to accept a lawyer he does not want.” Faretta,
422 U.S. at 833. Thus, the defendant who does not want
to accede to counsel “full authority to manage and
conduct [his] trial” is not forced to do so. Taylor v.
Illinois, 484 U.S. 400, 418 (1988). The Sixth Amendment
protects his right to represent himself, Faretta, 422 U.S.
at 807, entitling him to preserve actual control over the
case he presents to the jury, McKaskle v. Wiggins, 465
U.S. 168, 178 (1984). Although his decision to do so is
“usually” harmful to his case, it must be honored. See id.
at 177 n.8.
The right to self-representation, like others, is not
absolute. Edwards, 554 U.S. at 171. A defendant can
forfeit his right to self-representation by “deliberately
engag[ing] in serious and obstructionist misconduct.”
Faretta, 422 U.S. at 834 n.46. And a defendant can only
elect
self-representation
by
“knowingly
and
intelligently” waiving his corresponding right to counsel.
Id. at 835. The competence required to waive counsel,
however, is not high. Godinez v. Moran, 509 U.S. 389,
399 (1993). That a defendant has no legal knowledge or
makes for a poor advocate does not bear on his
competency. Id. at 400. If he is competent enough to
stand trial, he is competent enough to waive counsel. Id.
at 399 (citing Dusky v. United States, 362 U.S. 402
(1960). While states remain free to adopt more
demanding standards, their decision to do so remains a
matter of choice, not constitutional dictate. Id. at 402.
Where a state so chooses, the Constitution permits its
trial courts to override a defendant’s waiver—and foist
18
counsel upon him—if severe mental illness renders him
incompetent to conduct trial proceedings by himself.
Edwards, 554 U.S. at 177–78.
2. EDWARDS IS PERMISSIVE.
Calvert’s complaint is that the CCA interpreted
Edwards’s holding as permissive. He argues that the
case’s permissive holding contravenes the Sixth and
Fourteenth Amendments. See Pet. 14, 17. He explains
that Edwards’s rationale for permitting a state to
override a schizophrenic defendant’s right to selfrepresentation “make[s] clear that a state must do so”
under the circumstances here. Pet. 17. Hardly.
To be sure, circuits that have confronted the
question unanimously disagree with Calvert: “Under
Edwards, the ‘Constitution may . . . allow[] the trial
judge to block [the defendant’s] request to go [at] it
alone, but it certainly did[ not] require it.’” United States
v. Berry, 565 F.3d 385, 391 (7th Cir. 2009); United States
v. Tucci-Jarraf, 939 F.3d 790, 796 (6th Cir. 2019); United
States v. Fields, 761 F.3d 443, 467 (5th Cir. 2014);
United States v. Bernard, 708 F.3d 583, 590 (4th Cir.
2013); United States v. Turner, 644 F.3d 713, 724 (8th
Cir. 2011); United States v. DeShazer, 554 F.3d 1281,
1290 (10th Cir. 2009); United States v. Ferguson, 560
F.3d 1060, 1070 n.6 (9th Cir. 2009); United States v.
Posadas-Aguilera, 336 Fed. App’x 970, 975–76 n.5 (11th
Cir. 2009); United States v. VanHoesen, 450 Fed. App’x
57, 61 (2d Cir. 2011).
Even under Edwards, a trial court’s discretion to
override a defendant’s waiver of counsel is not absolute.
“Severe mental illness” appears to be the condition
precedent. See Berry, 565 F.3d at 391. Certainly, the
19
right cannot be denied because a defendant lacks legal
knowledge or otherwise makes a poor advocate. See
Faretta, 422 U.S. at 834 n.4. And this Court repeatedly
cabined its holding in Edwards with phrases like
“mental
derangement,”
“gray-area
defendant,”
“borderline competent criminal defendant,” and, of
course, “severe mental illness.” 554 U.S. at 171, 173–
175. Edwards, after all, suffered from a schizophrenia.
Calvert has a personality disorder. While he
suggests that his prolific objections turned his trial into
a spectacle of his mental illness, see Pet. 14, two forensic
psychiatrists who observed him at trial did not think so,
160 RR 49–57, 85–88. In fact, Drs. Arambula and Gripon
testified that Calvert’s behavior and self-advocacy was
inconsistent with, even contrary to, symptoms
associated with serious mental illness. 160 RR 49–57,
87–88. Their evaluations were consistent with Dr.
Dunn’s pretrial evaluation. 2 Supp. CR 125. Rather than
rebutting the experts’ contemporaneous assessments,
Calvert directs the Court to a few awkward objections
and cross-examinations. See Pet. 8 Awkward advocacy,
though, is not a symptom of mental illness. It is what
self-representation looks like in the normal case. Cf.
Faretta, 422 U.S. at 834.
Contrary to Calvert’s allegations, his trial court
did not turn a blind eye to his mental illness and the
impact thereof. See Pet. 19. It required him to undergo
independent psychiatric evaluation, 5 RR 3–4, and only
accepted his waiver after he was determined “competent
to waive counsel and to represent himself on a case of
capital murder for which the State is seeking the death
penalty.” 2 Supp. CR 117. Because Calvert was not
20
severely mentally ill, deranged, or even borderline
competent, Edwards was not implicated, meaning the
trial court did not even have discretion to override his
Faretta rights. See 554 U.S. at 173–75. But if there were
any doubt, the trial court made its observations explicit:
Calvert’s behavior at trial did not raise questions about
his competency “to handle his case.” 160 RR 113, but
instead demonstrated that he “ha[d] the capacity, . . . to
engage in a reasoned choice of legal strategies and
options. . . .” 160 RR 116.
Notwithstanding, Calvert asks the Court to make
Edwards’s permissive holding mandatory—that is, to
require trial courts to inquire as his did, or better yet, to
require trial courts to override Faretta for defendants
like him. See Pet. 19. But absent severe mental illness,
it is unclear what Calvert’s mandatory version of
Edwards would even look like. Would trial courts be
required to override the rights of defendants with
personality disorders? Or just the disrespectful ones?
Perhaps those with anxiety during their trial? Treated
depression? Too much zeal? The answer is obvious: This
Court should decline to adopt a mandatory standard for
the same reason it declined to do so in the first place:
Trial courts are in the best position to assess a
defendant’s mental health and any impact it may have
on his trial. Edwards, 554 U.S. at 175–77. Sitting in that
position, Calvert’s trial court thoroughly considered the
issue.
Framed as a mental health issue, Calvert’s claim
has very little to do with mental health. He decided to
represent himself because he wanted “total control” of
the presentation of his case. 15 RR 11–16; see also 2
21
Supp. CR 123–25; McKaskle, 465 U.S. at 178. Convicted
anyway, he seeks a new version of Faretta whose rights
inure exclusively to the wise. He explains that the right
to counsel is essential and counsel ensures a fair trial
and is less burdensome on trial courts. See Pet. 16. He is
not wrong about either, but defendants enjoy the
constitutional
right
to
represent
themselves
notwithstanding—according to this Court, centuries of
history, the Sixth Amendment, and the personal
autonomy that forms “the lifeblood of the law.” Faretta,
422 U.S. 812–834. That Calvert’s decision was unwise in
the way Faretta predicted it would be is not grounds to
override Faretta. See 422 U.S. at 834.
Nor does the charge Calvert faced justify the
change in law he seeks. United States v. Davis, 285 F.3d
378, 384–85 (5th Cir. 2001) (holding right to selfrepresentation applies in capital proceedings); Silagay
v. Peters, 905 F.2d 986, 10007–08 (7th Cir. 1990) (same);
see also Lehhard v. Wolff, 44 U.S. 807, 808–09 (Marshall,
J., dissenting) (1979) (discussing defendant’s waiver of
counsel during capital murder trial); Burton v. Davis,
816 F.3d 1132, 1141–47 (9th Cir. 2016) (reviewing trial
court’s denial of defendant’s Faretta rights in capital
murder trial); Simpson v. Battaglia, 458 F.3d 585, 597
(7th Cir. 2006) (reviewing trial court’s appointment of
standby counsel in capital murder trial); Nelson v.
Alabama, 292 F.3d 1291 (11th Cir. 2002); Townes v.
Murray, 68 F.3d 840, 845–46 (4th Cir. 1995) (finding
valid trial court’s Faretta inquiry in capital murder
case); Cook v. Schriro, No. 97-cv-00146-RCB, 2006 WL
842276 (D. Ariz. Mar. 28, 2006) (“Neither Faretta nor
any subsequent ruling by the United States Supreme
Court limits the Sixth Amendment’s right to self-
22
representation to non-capital cases.”); Duncan v. United
States, No. 2:17-cv-00091-EJL, 2019 WL 1320039 (D.
Idaho Mar. 22, 2019); Lay v. Trammell, 2015 WL
5838853, *23 (N.D. Okla. Oct. 7, 2015) (holding “that a
criminal defendant may represent himself at all phases
of a capital trial”).
The right of self-representation is not contingent
upon the complexity of litigation. Although Calvert was
professionally unqualified to manage his case (or any
other), “the competence required . . . is the competence
to waive the right, not the competence to represent
[one]self.” Godinez, 509 U.S. at 399. Where—as here—
the defendant is not suffering from a mental illness
rendering him incompetent to conduct trial proceedings,
his “ability to represent himself has no bearing upon his
competence to choose self-representation.” Id. at 400.
While it is difficult to imagine a capital case in which
self-representation is the wiser choice, a defendant’s
autonomy trumps judicial paternalism. And where the
stakes are high, a defendant’s autonomy should be held
even higher. For whether the defendant or the judge is
unwise, it is the defendant who faces the penalty—alone.
See Faretta, 422 U.S. at 834; Edwards, 554 U.S. at 186–
89 (Scalia, J., dissenting).
Nothing about the CCA’s denial of Calvert’s claim
conflicts with this Court’s precedent. Calvert’s
mischaracterization of the trial as a spectacle of his
mental illness—when the record indicates it was not—
underscores the need for trial court discretion in the first
place. This Court should decline Calvert’s request to
rescind that discretion.
23
B. THE STATES’ APPLICATION OF EDWARDS IS NOT
A “CONFLICT.”
Calvert argues that this Court’s review is
necessary to “resolve a conflict” among the states based
on their misinterpretation of Edwards. Pet. 20–23. He
asserts that the states are in “hopeless disarray” because
some have adopted standards more elaborate than
Dusky, while others have not. See Pet. 20–23. But,
according to this Court, that it precisely what the
Constitution permits. See Edwards, 554 U.S. at 177–78;
Godinez, 509 U.S. at 402. The states’ application of their
own constitutionally-permissible standards is more
federalism than a conflict requiring judicial
intervention.
Calvert blames Edwards for the federalism. See
Pet. 20. But in fact, states have been applying their own
competency-to-waive-counsel standards since before
1975. Faretta, 422 U.S. at 813 & n.9 & 10 (citing state
court
constitutions
conferring
right
to
selfrepresentation and state court decisions applying same);
see also Godinez, 509 U.S. at 396 n.6. And in 1993, this
Court approved, provided the standards do not fall below
Dusky’s floor. Godinez, 509 U.S. at 402 (“While
psychiatrist and scholars may find it useful to classify
the various kinds and degrees of competence, and while
States are free to adopt competency standards that are
more elaborindiate than the Dusky formulation, the Due
Process Clause does not impose these additional
requirements.”) (emphasis added). In 2008, this Court
reviewed one such standard. It found Indiana’s
heightened standard constitutionally permissible, but,
notably, declined to adopt the State’s proposed standard
24
as a mandatory constitutional one. Edwards, 554 U.S. at
178. Instead, the Court left the standard and the inquiry
where it was: with the states and their trial judges.
Recognizing the erratic nature of mental illnesses, the
Court explained that trial judges are best suited to make
“fine-tuned mental capacity decisions, tailored to the
individualized circumstances of a particular defendant.”
554 U.S. at 175–77. Thus, a Nevada judge can honor the
waiver of a depressed defendant, and an Indiana judge
can override that of a schizophrenic one. Compare
Godinez, 509 U.S. 389, with Edwards, 554 U.S. at 167–
69.
Overlooking Edwards’s rationale, Calvert
advocates for a mandatory standard to alleviate the
“hopeless disarray” that is trial court discretion.
Substantiating his hyperbole, he implies that Texas trial
courts are bound to honor the Faretta rights of severely
mentally ill defendants despite their apparent inability
to represent themselves. See Pet. 20–23. But that is not
the case. Even in Texas, trial courts maintain discretion
to deny self-representation based on severe mental
illness. Chadwick v. State, 309 S.W.3d 558 (Tex. Crim.
App. 2010) (applying Edwards). And even in Texas, trial
courts do. E.g., id. (upholding trial court’s denial of
mentally ill defendant’s request to proceed pro se where
mental illness rendered him incompetent to proceed pro
se, but not incompetent to stand trial); In re JG, Nos. 0413-00825-cv & 04-13-00827-cv, 2014 WL 4627599 (App
Ct.—San Antonio, Sept. 17, 2014) (same); Randle v.
State, No. 10-19-00183-CR, 2020 WL 4518599 (Ct.
App.—Waco Aug. 5, 2020) (same); accord Lewis v. State,
532 S.W.3d 423, 431 n.4 (Tex. Crim. App. 2016) (“The
discretion of the trial court to deny self-representation
25
based on severe mental illness is well-established.”); cf.
Davis v. State, 484 S.W.3d 579 (Tex. App.—Fort Worth
2016) (reversing trial court where record did not support
its determination that defendant had capacity to waive
counsel and represent himself). Calvert’s trial court did
not because mental illness was not impacting his ability
to represent himself. See e.g., 160 RR 113, 116; 2 CR 125;
accord 160 RR 61, 78–79.
Still, Calvert argues that Edwards’s permissive
holding creates a disparity in justice between Texas and
states whose legislatures have adopted heightened
standards. Pet. 23. But he provides no empirical
evidence to prove it, and his case offers little in the way
of anecdotal support. In fact, his own sampling of cases
tends to undermine his disparate-justice theory. In
South Carolina, Oklahoma, and Maryland—where
Dusky governs—defendants whose competency was not
at issue were permitted to represent themselves. See
State v. Barnes, 753 S.E.2d 545, 550 (S.C. 2014);
Stewart-Bey v. State, 96 A.3d 825, 833 (Md. Ct. Spec.
App. 2014); Mathis v. State, 271 P.3d 67, 72 (Okla. Crim.
App. 2012). In Rhode Island, Michigan, and the District
of Columbia—where heightened standards apply—the
results were the same. Williams v. United States, 137
A.3d 154 (D.C. 2016) (finding trial court properly
honored defendant’s waiver where there was no sign of
mental illness); State v. Cruz, 109 A.3d 381, 391 (R.I.
2015); People v. Brooks, 809 N.W.2d 644, 654–55 (Mich.
Ct. App. 2011).
The fact is “gray area” defendants, competent
enough to stand trial but not enough to represent
themselves, are few. In Indiana, we know of a
26
schizophrenic defendant who fell into that category. See
Edwards, 554 U.S. at 168–70. In Texas, we know of a
few more. Chadwick, 309 S.W.3d at 563; In re JG, 2014
WL 4627599, at *3–4; Randle, 2020 WL 4518599, at *5;
Davis, 484 S.W.3d at 581–82. But even in the states
whose legislatures require their trial courts to apply
heightened standards, defendants with personality
disorders and/or depression do not typically fall into the
“gray area” category. E.g., United States v. McKinney,
737 F.3d 773, 778–79 (D.C. 2013) (upholding trial court’s
decision to honor a defendant’s waiver of counsel,
despite depression and personality disorder); Loor v.
State, 240 So.3d 136, 140 (Dist. Ct. App. 3d 2018); State
v. McCullah, 829 N.W.2d 191 (Iowa Ct. App. 2013); State
v. Brown, 365 N.W.2d 867 (Wis. 2015) (upholding trial
court’s decision to honor waiver of depressed defendant).
As it turns out, Edwards could not have saved Calvert
from himself in Texas, or anywhere.13
From Calvert’s sampling of cases, one thing is
apparent: states are applying Edwards. There is no
conflict, no disarray—just Edwards. This Court should
decline to use its resources to rebuke state courts doing
what it told them to do.
It is true that some states appear to afford trial courts
discretion to override Faretta based on grounds other than mental
illness. But in Calvert’s sampling of cases, only one trial court
utilized its discretion to do so. See Shorthill v. State, 354 P.3d 1093,
1109 (Alaska Ct. App. 2015). In the others, appellate courts
remanded cases to the trial courts instructing them to apply a
heightened standard. From the undersigned’s review, it appears as
though the heightened standards did not change the outcome in the
trial courts.
13
27
III.
THE EIGHTH AMENDMENT’S INDIVIDUALIZEDSENTENCING REQUIREMENT WAS SATISFIED.
Calvert asks this Court to grant certiorari
because, during the punishment phase of trial, the State
introduced specific evidence of the opportunity for prison
violence through guard David Logan’s testimony. He
argues that the jury’s consideration thereof violates the
Eighth
Amendment’s
individualized-sentencing
requirement because Logan’s testimony was not about
him. Pet. 23–26. He omits that testimony from twentytwo other witnesses was, but perhaps it does not matter.
The Eighth Amendment does not support his claim in
any event.
A. THE CCA PROPERLY APPLIED THIS COURT’S
PRECEDENT.
In the CCA, Calvert asserted that the trial court
erred in admitting Logan’s testimony and that the jury’s
consideration thereof violated the Eighth Amendment’s
individual sentencing requirement. App. Brief 190–200.
The CCA found the evidence’s admission erroneous but
harmless, explaining that Logan’s testimony was but “a
small part of the State’s lengthy punishment case,”
whose “overwhelming focus was on [Calvert’s] behavior
and prison conditions.” Pet. App’x 147a–52a. The CCA
rejected Calvert’s Eighth Amendment claim because
this Court has never “applied the individualizedsentencing requirement [to] assay[] the admissibility of
future dangerousness evidence.” Pet. App’x 152a (citing
Jurek v. Texas, 428 U.S. 262, 271 (1976)). Calvert does
not contend that the CCA is incorrect about that (it is
not) but says that its denial of his claim “directly
conflicts” with this Court’s precedent anyway. Pet. 24.
28
He argues that the CCA “ignored” the requirement to
ensure “the jury is able to render an individualized
sentencing determination.” Pet. 25. But if anyone is
ignoring the law, it is him.
The
Eighth
Amendment’s
individualizedsentencing requirement is satisfied when a defendant
can present, and a jury is able to consider, mitigating
evidence. E.g., Kansas v. Marsh, 548 U.S. 163, 171
(2006); Jones v. United States, 527 U.S. 373, 381 (1999);
Blystone v. Pennsylvania, 494 U.S. 299, 207 (1990).
Calvert presented mitigating evidence, and his jury was
instructed to consider it. 169 RR 10–107; 171 RR 7, 11.
The individualized-sentencing requirement is
what it purports to be: an affirmative requirement that
ensures juries may consider a defendant’s mitigating
evidence. It does not excise any “sort” of testimony, nor
does it prohibit the jury from considering same. See Pet.
26. While Calvert insists that the requirement does
excise and prohibit, he identifies no court that has
applied it as such. See Pet 23–26. If the absence of
support is not enough to refute Calvert’s contention, this
Court’s jurisprudence on the issue is: The Eighth
Amendment does not “establish a special ‘federal code of
evidence’ at capital sentencing proceedings.” Kansas v.
Carr, 577 U.S. 108, 123 (2016) (citing Romano v.
Oklahoma, 512 U.S. 1 (1994)). Indeed, the Amendment
is inapposite where “the defendant’s claim is, at bottom,
that the jury considered evidence that . . . clouded [its]
consideration of mitigating evidence.” Id. For claims
such as Calvert’s—that one witness’s testimony
rendered the jury unable to consider the testimony of
twenty-two others—the Eighth Amendment provides no
29
relief. The CCA did not ignore a requirement but
declined to apply an inapplicable one.
Calvert reverts to a parade of horribles. If the
Eighth Amendment does not prohibit the admission of
“this sort” of evidence, he warns, it could be considered
relevant to future dangerousness in “every capital case.”
Pet. 26. He is not wrong that prison violence evidence
may be considered relevant; it is. Cf. App. Brief 195
(accepting the relevance of prison violence evidence).
The State often presents evidence to show violence in
prison is possible, and defendants often present evidence
to show it is rare. The adversarial process leaves the
jurors to sort through and assess the reliability of that
evidence. See Barefoot v. Estelle, 463 U.S. 880, 901
(1983), overturned on other grounds. Calvert chose not
to call an expert to counter Logan’s testimony at trial.
His failure to utilize the adversarial process does not
undermine efficacy of the process, and it certainly does
not justify the global intervention he now seeks. See id.
There are safeguards beyond the adversarial
process, too. Contrary to Calvert’s warning, declining to
accept his version of the Eighth Amendment does not
mean David Logan will tell “every” capital murder jury
of his injury. See Pet. 26. The Rules of Evidence provide
a means for excluding such evidence, and if they fail, a
defendant may have a claim in due process. See Carr,
577 U.S. at 123. That is, if he can show that the
complained-of evidence was “unduly prejudicial” in a
way that rendered his trial “fundamentally unfair.” Id.
(quoting Payne v. Tennessee, 501 U.S. 808, 825 (1991)
(internal quotations omitted). Calvert cannot show
either, see Pet. App’x 151a, so asks the Court to invoke
30
the Eighth Amendment in circumstances it said it would
not, see Carr, 577 U.S. at 123. It should decline (again).
IV.
THE COURTROOM DEPUTIES’ ACTIVATION OF
CALVERT’S SHOCK CUFF OUTSIDE THE JURY’S
PRESENCE IS NOT STRUCTURAL ERROR.
As noted above, courtroom deputies activated
Calvert’s shock cuff on two occasions, both outside of the
jury’s presence. Calvert says nothing about the first (or
the way he goaded the deputies about shocking him
thereafter) but complains that the second constitutes
structural error, entitling him to a new trial. Pet. 27–32.
He asserts that the due process violation here fits
“squarely and comfortably within the doctrine of
‘structural’ error.” Pet. 28. But his understanding of the
doctrine appears to be informed, at least in part, by cases
that have nothing to do with it. Pet. 29–30 (citing
Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009);
Rochin v. California, 342 U.S. 165; United States v.
Booker, 728 F.3d 535 (6th Cir. 2013).
A. THE CCA’S HARMLESS ERROR ANALYSIS
CONFIRMS THAT THE ERROR IS NOT
STRUCTURAL.
In the CCA, Calvert claimed that the deputies’
activation of his shock cuff violated due process and was
structural error. App. Brief 45–52. The CCA agreed that
the incident violated due process but denied relief
because the error was neither structural nor harmful.
Pet. App’x 15a–25a.
Calvert argues that the CCA was wrong to apply
the harmless error standard. But again, he fails to
identify any court that has found such error structural.
31
And again, he argues that it simply must be because
justice demands it. See Pet. 28. If this error is not treated
as structural, he warns, trial judges will continue to
shock defendants with impunity. Pet. 27–28. He
rewrites the facts of his case to support his call for
justice, alleging that the trial court “cho[se] to
administer [the] electric shock” because “[Calvert] forgot
to stand when addressing the court.” Pet. 31. Neither is
true, but even if the judge so chose, and even if shocked
for forgetfulness, overturning Calvert’s conviction—
unaffected by the incident—is not necessary to deter
shocking during judicial proceedings. If this Court
assumes with Calvert that judges intentionally violate
the Constitution to the extent that they are able
(stopping only when the risk of being overturned
becomes too great), but see Withrow v. Larkin, 421 U.S.
35, 47 (1975), structural error is not the only way to stop
them. Criminal prosecutions already serve that purpose.
See Pet. 31. And in any event, deterring judicial conduct
is not a rationale for structural error.
“[A] structural error ‘def[ies] analysis by harmless
error standards.’” Weaver v. Massachusetts, 137 S. Ct.
1899, 1907 (2017) (quoting Arizona v. Fulminante, 499
U.S. 279, 309–10 (1991)). Id. For some such errors, the
“effect of the violation cannot be ascertained.” Id. at 108
(judicial bias). For others, the applicable right “protects
interests that do not belong to the defendant.” Id. at
1910 (public trial). And for others, the harm analysis
would negate the right itself. See id. at 1908 (selfrepresentation) (explaining that violation of Faretta
rights would make conviction less likely). In each
instance, application of the harmless error standard is
32
illogical. See Sullivan v. Louisiana, 508 U.S. 275, 280
(1993).
Missing this prerequisite, Calvert says little
about whether the incident is amenable to analysis
under the harmless error standard. See Pet. 30 n.4.
Instead, he directs the Court to language from the
doctrine’s purpose, to suggest that it establishes a
hierarchy of rights, for which structural error insulates
the most important. See Pet. 28–29. He discusses errors
that undermine the judicial process and the public
perception thereof and places deputy shocking in that
category. Pet. 29–31. But Calvert misses the mark.
Structural error is not conscience-shocking error. It is
error that defies analysis under the harmless error
standard. E.g., Weaver, 137 S. Ct. at 1907; Williams v.
Pennsylvania, 136 S. Ct. 1899, 1909–10 (2016)
(interested appellate judge’s failure to recuse himself
from appellate panel structural because effect of error
difficult to ascertain); Sullivan, 508 U.S. at 281–82
(deficient reasonable doubt instruction structural error
because error not amenable to harmless error analysis).
And while Calvert is correct that the doctrine’s purpose
is to “ensure insistence on certain basic, constitutional
guarantees” affecting a trial’s framework, Pet. 28
(quoting Weaver, 137 S. Ct. at 1907), the referenced
guarantees are those the harmless error analysis would
swallow. Calvert’s is not one.
The harmless error standard applies seamlessly
here, as seen in the CCA’s analysis:
There are two primary ways in
which a shock cuff’s activation may
adversely affect the fairness of a trial. The
33
first is the negative effect on jurors’
impartiality and the presumption of
innocence—implicating
the
Fifth
Amendment. The second is the negative
effect on the defendant’s ability to confer
with counsel and otherwise participate in
his
defense—implicating
the
Sixth
Amendment. Neither applies here.
There is no evidence that the shock
cuff’s activation had a negative effect on
the jurors’ impartiality or the presumption
of innocence. The jurors were not present.
...
Further, the record contains no
evidence that the shock cuff’s activation
affected [Calvert’s] ability to confer with
counsel and participate in his defense.
. . . [Calvert] was no more than
momentarily
incapacitated
by
the
activations of the shock belt. And the
record of this case does not indicate that
[Calvert] was anxious or distracted by the
possibility of another shock. After the first
pretrial activation, [Calvert] continued to
resist and fight the transport guards, and
then repeatedly refused offers for medical
treatment, stating that he was “okay.”
Thereafter,
he
very
actively
and
consistently participated in his defense.
And after the second midtrial activation,
coming nearly a year later, [Calvert]
continued arguing with the judge. . . .
34
On this record, we conclude that the
shock cuff’s activation outside the jury’s
presence did not affect the jurors’
impartiality, nor [Calvert’s] presumption of
innocence, nor [Calvert’s] ability to be
present at trial and participate in his own
defense. We are confident beyond a
reasonable doubt that the error did not
contribute to the conviction or punishment.
Pet. App’x 22a–25a.
The error’s effect on Calvert’s conviction is
ascertainable: There was none. The harm analysis is not
obscured by the interests of other parties, as Calvert’s
due process rights protect his interests, and his alone.
And finally, the harm analysis is not illogical, the
deputy’s activation of the shock cuff does not make
Calvert’s conviction less likely. The harm analysis
works, and so it applies. See Weaver v., 137 S. Ct. at
1907. This Court should decline Calvert’s petition for
review, along with his request for summary reversal.
CONCLUSION
For the foregoing reasons, the petition for a writ
of certiorari should be denied.
Respectfully submitted,
KEN PAXTON
Attorney General of Texas
35
BRENT WEBSTER
First Assistant Attorney
General
JOSH RENO
Acting Deputy Attorney
General
for Criminal Justice
EDWARD MARSHALL
Chief, Criminal Appeals
Division
JENNIFER WREN MORRIS
Assistant Attorney General
P.O. Box 12548
Austin, TX 78711
(512) 936-14000
jennifer.wren@oag.texas.gov
Counsel of Record
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