Petition for Writ of Certiorari — James Calvert, Petitioner v. Texas
Supreme Court briefFeb 3, 2022
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APPENDIX A
IN THE COURT OF CRIMINAL APPEALS OF
TEXAS
NO. WR-85,283-01
EX PARTE JAMES CALVERT, Applicant
ON APPLICATION FOR POST-CONVICTION
WRIT OF HABEAS CORPUS FROM CAUSE
NO. 241-1467-12 IN THE 241ST JUDICIAL
DISTRICT COURT SMITH COUNTY
Per curiam.
ORDER
This is an application for a writ of habeas corpus
filed pursuant to the provisions of Texas Code of
Criminal Procedure Article 11.071.1
Unless otherwise specified, all references to articles in this
order refer to the Texas Code of Criminal Procedure.
1
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In October 2015, a jury convicted Applicant of
capital murder for murdering his second ex-wife in
the course of committing or attempting to commit
burglary or kidnapping. See TEX. PENAL CODE
§ 19.03. Jeffery Haas and Jason Cassel were appointed to represent Applicant following his indictment. However, in February 2014, Applicant requested and was granted the right to represent himself. Applicant represented himself through approximately fifty pretrial hearings, voir dire, and roughly
three weeks of trial. On September 15, 2015, during
the guilt phase, the trial court revoked Applicant’s
pro se status and reinstated Haas and Cassel as Applicant’s counsel. The jury returned a general verdict
of guilty and it thereafter answered the punishment
phase special issues submitted under Article 37.071
in a manner requiring the trial court to set punishment at death. This Court affirmed Applicant’s conviction and sentence on direct appeal. Calvert v.
State, No. AP-77,063 (Tex. Crim. App. Oct. 9, 2019)
(not designated for publication).
In his application, Applicant presents seven
challenges to the validity of his conviction and sentence. Pursuant to the trial court’s order, trial counsel filed responsive affidavits to Applicant’s three ineffective assistance allegations detailed below. The
trial court thereafter entered findings of fact and
conclusions of law and a recommendation that we
deny the relief Applicant seeks.
We have reviewed the record regarding Applicant’s allegations. In Claim 1, Applicant alleges that
trial counsel were constitutionally ineffective at the
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pretrial stage because they failed to demonstrate
that Applicant was incapable of representing himself. In Claim 2, Applicant contends that trial counsel were constitutionally ineffective at the guilt
phase because they failed to: adequately prepare and
investigate affirmative defenses as standby counsel;
demonstrate that the jury was aware of and detrimentally affected by the trial court’s use of a stun
belt against Applicant; seek the trial judge’s recusal;
and seek a curative instruction regarding Applicant’s
demeanor. In Claim 3, Applicant asserts that trial
counsel were constitutionally ineffective at the punishment phase because they failed to: “secure and
present the services of a mental health expert”; present lay witness testimony and documents; and object to prejudicial statements made by the prosecution. However, Applicant fails to meet his burden
under Strickland v. Washington, 466 U.S. 668
(1984), to show by a preponderance of the evidence
that his counsel’s representation fell below an objective standard of reasonableness and that there was a
reasonable probability that the result of the proceedings would have been different but for counsel’s deficient performance. See Ex parte Overton, 444 S.W.3d
632, 640 (Tex. Crim. App. 2014) (citing Strickland,
466 U.S. at 688).
Claims 4 through 7 are procedurally barred because they were raised and rejected on direct appeal,
or they could have been raised on direct appeal, but
were not. See Ex parte Hood, 304 S.W.3d 397, 402
n.21 (Tex. Crim. App. 2010) (“[T]his Court does not
re-review claims in a habeas corpus application that
have already been raised and rejected on direct ap-
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peal.”); Ex parte Nelson, 137 S.W.3d 666, 667 (Tex.
Crim. App. 2004) (“It is ‘well-settled that the writ of
habeas corpus should not be used to litigate matters
which should have been raised on direct appeal.’”).
We adopt the trial court’s findings of fact and
conclusions of law. Based upon the trial court’s findings and conclusions and our own review, we deny
habeas relief as to all of Applicant’s claims.
IT IS SO ORDERED THIS THE 6TH DAY OF
OCTOBER, 2021.
Do Not Publish
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APPENDIX B
CAUSE NO. 241-1467-12-A
[File Stamp: July 22, 2021]
EX PARTE
JAMES CALVERT
§
§
§
§
§
§
§
IN THE 241st
DISTRICT COURT
OF
SMITH COUNTY,
TEXAS
CERTIFICATE - WRIT OF HABEAS CORPUS
FINDINGS OF FACT AND SUGGESTED CONCLUSIONS OF LAW
On November 7, 2018. the defendant in Cause
Number 241-1467-12, filed this Application for a
Writ of Habeas Corpus. On March 7, 2019, the State
filed a preliminary answer requesting a designation
of issues and an order for trial counsel to prepare affidavits in response to the writ application. On
March 11, 2019, Court designated the defendant’s
grounds for relief for resolution and ordered trial
counsel to prepare affidavits by June 7, 2019. That
order was largely ineffective and the affidavits of
counsel were not received by the Court until March
11, 2021. The Court hereby enters its findings of fact
and conclusions of law.
The Court takes judicial notice of all prior proceedings, reporter’s records, the documents and papers contained in the files, and the docket sheets in
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Cause Number 241-1467-12, and the first Application for Writ of Habeas Corpus in 241-1467-12-.A.
The Court enters the following Findings of Fact
and Conclusions of Law:
1. Applicant, James Calvert, was indicted in Cause
No. 241-1467-12. filed on November 5, 2012, in
the 241st District Court of Smith County, Texas,
with the offense of Capital Murder. (1 CR: 6).
2. In August through October of 2015, a jury was
selected and after hearing evidence and argument of counsel, found Applicant guilty of capital
murder. Pursuant to the jury’s answers to the
special punishment issues, the Court sentenced
Applicant to death.
3. Applicant had an automatic direct appeal, the
parties filed their respective briefs, and the case
was taken under submission in the Court of
Criminal Appeals. On October 9, 2019, the Court
of Criminal Appeals, after reviewing twenty-nine
points of error, affirmed Applicant’s conviction
and death sentence. Calvert v. State, 2019 Tex.
Crim. App. Unpub. LEXIS 584, 2019 WL
5057268 (Tex. Crim. App., Oct. 9, 2019).
4. On November 7, 2018, Applicant filed this, his
first Art. 11.071 application for a Writ of Habeas
Corpus under the above-numbered cause, and
has alleged seven claims for relief:
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(a)
Claims One through Four allege that
Applicant’s trial attorneys were ineffective for a variety of reasons;
(b)
Claim Five alleges that Applicant’s due
process rights were violated by the prosecution’s failure to turn over exculpatory
and mitigating evidence;
(c)
Claim Six alleges that the Court violated
Applicant’s right to representation by
denying him “access to materials for his
defense;”
(d)
Claim Seven alleges a denial of Applicant’s right to a jury trial “due to juror
dismissals and non-representative venire.”
5. The Court takes judicial notice of all prior proceedings, including Applicant’s direct appeal, all
files and records in this case, and the evidence at
both phases of trial. The Court further takes judicial knowledge of the following:
6. A criminal defendant has a right to effective assistance of counsel at trial. U.S. CONST. amend.
VI. An attorney’s function “is to make the adversarial testing process work in the particular
case.” Strickland v. Washington, 466 U.S. 668,
690, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). To
determine whether to grant habeas relief for ineffective assistance of counsel, Texas courts apply the standard set forth in Strickland, which
requires the applicant to establish two compo-
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nents. See Hernandez v. State, 726 S.W.2d 53
(Tex.Crim.App. 1986).
First, the applicant must show that his trial attorney’s performance was deficient, meaning it
“fell below an objective standard of reasonableness . . . under prevailing professional norms”
and according to the necessity of the case. Strickland, 466 U.S. at 687-88; Ex parse Morrow, 952
S.W.2d 530, 536 (Tex.Crim.App. 1997) (en banc).
Because there “are countless ways to provide effective assistance in any given case,” a reviewing
court must be highly deferential and “indulge a
strong presumption that counsel’s conduct falls
within the wide range of reasonable professional
assistance; that is, the defendant must overcome
the presumption that, under the circumstances,
the challenged action might be considered sound
trial strategy.” Strickland, 466 U.S. at 689. Secondly, the applicant must demonstrate that he
was prejudiced by his attorney’s performance.
That is, taking into account the totality of the evidence before the judge or jury, “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Strickland, 466 U.S.
at 694, 696.
Thus, the defendant must show “that counsel’s
errors were so serious as to deprive him of a fair
trial, a trial whose result was reliable.” Id. at
687. It is not sufficient for the defendant to
merely show “that the errors had some conceivable effect on the outcome of the proceeding.” Id.
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at 693. Rather, he must show that “there is a
reasonable probability that, absent the errors,
the factfinder would have had a reasonable
doubt respecting guilt.” Id. at 695. “A reasonable
probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694.
7. A defendant who elects to represent himself cannot thereafter complain that the quality of his
own representation amounted to the denial of effective assistance of counsel. See Faretta v. California, 422 U.S. 806, 834 n. 46, 95 S. Ct. 2525, 45
L. Ed. 2d 562 (1975); Williams v, State, 549
S.W.2d 183, 189 (Tex. Crim. App. 1977); Perez v.
State, 261 S.W.3d 760, 766 (Tex. App. 2008)
(“Furthermore, when a convicted defendant has
insisted upon self-representation, any subsequent claim of ineffective assistance of counsel is
not to be considered.”). “A defendant may withdraw waiver of the right to counsel at any time
but is not entitled to repeat a proceeding previously held or waived solely on the grounds of the
subsequent appointment or retention of counsel.”
TEX. CODE CRXM. PROC. ANN. art. 1.051(h)
(West 2020).
8. The record reflects that Applicant was properly
admonished before he voluntarily and knowingly
waived his right to counsel to proceed pro se at
trial. (2 CR 361; 12 RR: 6-14; 14 RR: 4-72. 80-81).
Having done so for a large portion of his trial, he
cannot now complain about the effectiveness of
his own representation. Faretta, 422 U.S. at 834
n. 46; Williams, 549 S.W.2d at 189.
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9. “[T]he standard for waiving the right to counsel
is no higher than for competency to stand trial . . .” Chadwick v. State, 309 S.W.3d 558, 560
(Tex. Crim. App. 2010); see also Godinez v. Moran, 509 U.S. 389, 399, (1993) (“the competence
that is required of a defendant seeking to waive
his right to counsel is the competence to waive
the right, not the competence to represent himself.”) (emphasis in original).
10. At the time of trial in this case, both of Applicant’s court-appointed attorneys, Mr. Jeff Haas
and Mr. Jason Cassel, were well-experienced in
the trial of capital murder cases and were duly
selected from the applicable lists of qualified capital murder counsel approved by the First Administrative Judicial District.
(a) Claims for Relief One - Four: Effectiveness
of Trial Counsel
I.
Applicant’s first claim for relief alleges that his
trial attorneys were ineffective for “. . . failing to
demonstrate that [Applicant] was incapable of
representing himself.” (Writ App. at 38).
As noticed above, “the competence that is required of a defendant seeking to waive his right
to counsel is the competence to waive the right,
not the competence to represent himself.”
Godinez, 509 U.S. at 399.
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Findings of Fact and Conclusions of Law:
Claim for Relief One
1. When Applicant made it known that he wished
to represent himself, out of an abundance of caution, the Court requested the parties submit the
names of two potential mental health experts.
The Court chose Dr. Mitchell Dunn – whose
name was submitted by Mr. Cassel — as he was
well-qualified for the task of interviewing Applicant to determine his competency to waive counsel in a capital murder case. (12 RR: 4-5, 12-13;
13 RR: 3-4; 14 RR: 19-20); see also (Affidavit of
Mr. Cassel at 2; Affidavit of Mr. Haas at 4-5).
2. Dr. Mitchell Dunn was not the “State’s
hand-selected expert.” (Writ App. at 38). Instead,
the Court selected Dr. Dunn as the Court’s own
expert after his name was provided to the Court
by Mr. Cassel, and based upon his extensive
qualifications. (Letter/Report of Dr. Mitchell
Dunn).
3. The Court ordered Dr. Dunn to examine Applicant specifically regarding his competency to
waive counsel “and to represent himself in a case
where he is indicted for capital murder and the
State is seeking the death penalty.” (2 Supp CR:
128). After the examination, Dr. Dunn concluded
that:
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
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his day-to-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. He has previously represented
himself in custody matters before a different court and is also currently representing himself in a case involving termination of parental rights. Although
Mr. Calvert is aware that others may
disagree with this decision, he is capable
of making this decision with the full
knowledge of the risks and benefits associated with such a decision.
(2 Supp CR: 128).
4. Dr. Dunn’s opinion is consistent with Applicant’s
documented medical history and was supported
by the subsequent trial testimony of two other
well-qualified mental health experts —
Dr. Edward Gripon and Dr. Michael Arambula.
(160 RR: 42-67, 91-100; 167 RR: 166-250; 168
RR: 15-106).
5. On direct appeal, the Court of Criminal Appeals
has essentially decided this question where, after
a full review of the record and the law, it issued
an unanimous opinion concluding that:
Like the record in Dunn, the record in
this case contains no evidence that Appellant was incompetent to exercise his
right to self-representation. Dr. Dunn
observed that Appellant’s prior records
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included diagnoses of several “disorders.”
But Dr. Dunn ultimately concluded that
Appellant was competent to waive his
right to counsel. Further, when discussing whether Appellant would proceed pro
se, both Appellant and the trial judge
acknowledged that there was no evidence
raising an issue of incompetency. There
is no evidence of recent “severe mental
illness or bizarre acts by [Appellant] or of
moderate retardation.” The trial judge
did not abuse his discretion in finding
that Appellant was competent to knowingly and intelligently waive his right to
counsel based on Dr. Dunn’s report.
•
•
•
•
Appellant cites no authority for his assertion that the trial judge erred by failing to conduct an adversarial proceeding
with independent counsel. Therefore,
this point of error is inadequately
briefed. In any event, after making a
preliminary inquiry, the trial judge
found no evidence that Appellant was incompetent to waive counsel. And, as discussed above, Appellant need not be
competent to represent himself, only to
choose to represent himself. The judge’s
determination is supported by the record,
which contains no evidence of severe
mental illness and includes Dr. Dunn’s
report concluding that Appellant was
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competent to stand trial. The trial judge
is “best able” to make that determination.
Calvert, 2019 Tex. Crim. App. Unpub.
LEXIS 584. at *50-51.
6. In support of his first claim for relief, Applicant
offers the report of a Dr. Robert Schaffer, a clinical psychologist from Georgia. (Writ App. at 5-6,
Exhibit 1). Dr. Schaffer notes that Applicant is
computer science graduate of Texas A & M, who
made the “Dean’s List for academic excellance,”
yet nonetheless opines that he was “not competent to make a legally competent decision regarding self-representation.” (Writ App. - Exhibit 1 at
2, 17).
7. Dr. Schaffer did not review the 200 volumes of
trial record or the police reports in this case.
(Writ App. - Exhibit I at 1). Likewise, he did not
review, Dr. Dunn’s thorough evaluation and report. Id. at 5-6, 7. Nor did he review the testimony of the State’s mental health experts at trial.
Id. at 5-6.
8. Dr. Schaffer’s test results are also expressly
premised upon the assumption that Applicant
was not malingering and gave his “best performance” during testing. (Writ App. - Exhibit 1 at
10-11).
9. During his exam Dr. Schaffer never asked Applicant if he understood the benefits, risks, and
consequences of self-representation. He didn’t
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question him regarding the requirements of
Faretta. Because he failed to read Volumes 13
and 14 of the reporter’s record, the doctor was
unaware of the discussions therein between the
Court, the attorneys, and a rational,
well-informed Applicant, regarding his decision
to go pro se. (13 RR: 21-31; 14 RR: 4-73).
10. Dr. Schaffer gave Applicant a series of tests and
re-diagnosed the very same mental conditions
(obsessive-compulsive, depression and anxiety)
that have been repeatedly reported since 1999 by
multiple mental health professionals. He made
an additional “bi-polar” finding that is refuted by
every mental health professional’s diagnosis noted in his report. (Writ App. - Exhibit 1 at 5-7).
That finding is also either inconsistent with, or
was specifically rejected by, the more-qualified
professional opinions of Dr. Dunn (Neurologist,
Clinical/Forensic Psychiatrist), Dr. Gripon (Clinical/Forensic Psychiatrist) and to some extent
Dr. Arambula (Clinical/Forensic Psychiatrist,
Dr. of Pharmacy, and President of the Texas
Medical Board). See (Letter/Report of Dr. Dunn);
(167 RR: 175-76, 179-80; 168 RR: 27-30, 33-34).
11. Applicant alleges that his trial attorneys were
ineffective in relying upon Dr. Dunn’s opinion,
the expert they recommended to the Court,
merely because he has been able to find a
less-qualified expert, who is apparently not licensed to practice in Texas, and who disagrees
with Dr. Dunn’s opinion.
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12. The fact the there may exist an alternate expert
opinion is not the test for effectiveness of counsel. If it were, habeas relief would be available
any time an applicant could locate an expert who
disagreed with counsel’s previous expert. The
Constitution does not entitle “a defendant to the
best (or most expensive) expert, or to more than
one expert if the first does not reach a conclusion
favorable to the defense.” Ex parte Jimenez, 364
S.W.3d 866, 877 (Tex. Crim. App. 2012).
13. If the Court of Criminal Appeals has found there
was no abuse of discretion in this Court finding
Applicant competent to choose to represent himself, it cannot then be said that trial counsel acted unreasonably in accepting that finding. See
Moore v. State, 999 S.W.2d 385, 396 (Tex. Crim.
App. 1999) (“Nor can we find anything in the
record indicating that appellant’s decision was
anything less than voluntary. A knowing, intelligent, and voluntary waiver of counsel is not evidence of incompetency.”); Dunn v. State, 819
S.W.2d 510, 521-22 (Tex. Crim. App. 1991) (no
abuse of discretion where “ (a]t the time of appellant’s waiver of counsel and assertion of his right
to self-representation, appellant did not present
nor was there any evidence in the record from
any source that appellant was incompetent to
exercise his right to self-representation.”);
Turner v. State, 422 S.W.3d 676, 691 (Tex. Crim.
App. 2013) (that a defendant is mentally ill does
not by itself mean he is incompetent).
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14. To prevail on an ineffective assistance of counsel
claim, a writ applicant must satisfy the
two-prong standard set by the Supreme Court in
Strickland, 466 U.S. 668 (1984). Specifically, an
applicant must demonstrate: (1) deficient performance, that his counsel’s representation fell
below an objective standard of reasonableness
under prevailing professional norms; and
(2) prejudice, or a reasonable probability that the
result of the proceeding would have been different, but for counsel’s deficient performance. Id.
at 687-88. A failure to demonstrate either deficient performance or prejudice defeats an ineffective-assistance claim. Thompson v. State, 9
S.W.3d 808, 813 (Tex. Crim. App. 1999).
15. Applicant has not shown under Strickland that
his trial attorneys engaged in unreasonable conduct, or that he was harmed thereby, by not locating yet another expert to assist in this Court’s
determination of his competency to waive counsel. After much discussion with the Court, counsel chose a reasonable course of action which
carefully protected Applicant’s fundamental
right to represent himself and also ensured his
competency to choose to exercise that right.
16. The Court finds and concludes that there is no
merit to Applicant’s first claim for relief and it
should be denied.
II. Applicant’s claim for relief two complains that
his trial attorneys were ineffective at the guilt
phase of the trial: (a) for failing to adequately in-
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vestigate and prepare affirmative defenses;
(b) for failing to “demonstrate the jury was
aware of, and was detrimentally affected by, the
court’s use of a stun belt;” (c) for failing to move
to recuse the Court; and (d) for failing to “seek a
curative instruction regarding Mr. Calvert’s demeanor.” (Writ App. at 46-58).
Findings of Fact and Contusions of Law:
Claim for Relief Two
1. Applicant first alleges under this sub-section
that trial counsel rendered ineffective assistance
by failing to adequately investigate and prepare
unspecified “affirmative defenses.” (Writ App. at
47).
2. An “affirmative defense” is a term of art in criminal law that typically involves an admission of
guilt combined with a statutorily-defined, and
factually dependent, exemption. See i.e. TEX.
PENAL CORE ANN. § 8.01 (Insanity); § 8.05
(Duress); *20.03 (b) (Affirmative Defense to Kidnaping) (West 2019).
3. After his arrest and throughout the course of
this case, Applicant refused to admit that he
killed the victim. His writ application refuses to
name a single applicable “affirmative” defense or
explain how trial counsel allegedly failed to “adequately prepare and investigate” that defense.
(Writ App. at 47).
4. The Court of Criminal Appeals has repeatedly
described the State’s evidence of Applicant’s
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guilt to be “overwhelming.” Calvert, 2019 Tex.
Crim. App. Unpub. LEXIS 584, at *62, *98, *107,
*113, *150, *156; see also Id. at *129 (“And there
was ample admissible evidence showing that
Appellant went to Jelena’s house intending to
kill Jelena and abduct L.C.”).
5. Applicant nevertheless argues that “. . . with regard to the charge of burglary, trial counsel
failed to move for a directed verdict on the burglary element/charge notwithstanding the inadequate evidence . . . concerning the timing of alleged damage to Ms. Sriraman’s [the victim’s]
door and testimony that Mr. Calvert knocked
upon arrival.” (Writ App. at 49).
6. The indictment in the case charged Capital
Murder by committing murder during the course
of committing (or attempting to commit) the offense of: (a) kidnaping of his son [LC];
(b) burglary of the victim’s habitation; or
(c) robbery of the victim. (1 CR: 6). Applicant’s
trial attorney, Mr. Cassel, moved for a directed
verdict on both the kidnaping and robbery paragraphs. (161 RR: 4-6). He stated his reasonable
belief that there was “sufficient evidence” to
submit only the burglary paragraph to the jury.
(161 RR: 6-7).
7. This Court denied the requested directed verdict,
but the State nonetheless abandoned the robbery
paragraph. This left the kidnaping and burglary
paragraphs for submission to the jury. (161 RR:
11-15).
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8. While the record shows that while Mr. Cassel did
not believe he had grounds for a directed verdict
specifically on burglary, both trial attorneys argued that the evidence did not support burglary
as an alleged manner and means of committing
the offense charged. (161 RR: 114-15, 117, 121).
9. Regarding the “timing” of the damage to the victim’s carport door, there was no evidence presented at trial that the carport door had been
kicked in at some other time, or by any other
person, before or after Applicant broke in during
commission of the offense in this case.
10. Applicant has presented no new evidence showing even the mere possibility that the carport
door was kicked in by someone else at a time different than his entry on the date of the offense.
(Writ App. at 50).
11. All of the evidence at trial showed that the carport door frame was splintered when Applicant
broke in immediately before shooting the victim.
(130 RR: 30¬33; 132 RR: 109; 137 RR: 39, 56; 147
RR: 100-02, 105; 158 RR: 124-29).
12. It was undisputed at trial that Applicant had no
permission, legal or otherwise, to be in the victim’s home. (128 RR: 142-44; 129 RR: 37-38, 48;
132 RR: 126¬28, 158-64; 135 RR: 103, 114-15;
137 RR: 17).
13. The evidence remains undisputed that Applicant
lacked effective consent to enter the victim’s res-
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idence. See TEX. PENAL CODE ANN. § 30.02 (a)
(West 2019).
14. There is no credible evidence in the record which
could have supported Applicant’s proposed motion for directed verdict based upon the timing of
the “alleged” carport door damage.
15. The law provides that the fact that a defense attorney could have moved for a directed verdict on
the possibility of its being granted does not show
that trial counsel’s assistance was ineffective.
See Flanagan v. State, 675 S.W.2d 734, 747 (Tex.
Crim. App. 1982); see also Gill v. State, 111
S.W.3d 211, 217 (Tex. App. - Texarkana 2007, no
pet) (when State presented more than scintilla of
evidence that would support a guilty verdict,
counsel had no grounds to move for instructed
verdict, and failure to do so did not render assistance ineffective); McGarity v. State, 5 S.W.3d
223, 229 (Tex. App. - San Antonio 1999, no pet.)
(same).
16. Applicant further alleges that counsel “. . . could
have and should have presented evidence that
Mr. Calvert had made arrangements to take his
children trick-or-treating on the day of the offense.” (Writ App. at 49).
17. The record in this case shows that this very evidence was admitted several times; along with evidence that Applicant had “angrily canceled”
those arrangements and otherwise had no legal
visitation scheduled for that day. See i.e. (128
RR: 134-38. 142; 129 RR: 37-38; 132 RR: 143-44,
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152-53, 158-62, 165-66; 135 RR: 118); see also
Calvert, 2019 Tex. Crim. App. Unpub. LEXIS
584 at *2-3.1
18. Applicant argues that, “there was readily available evidence to show that Mr. Calvert arrived at
Ms. Sriraman’s home not to forcibly take the
children but because he was due to spend time
with them on Halloween.” (Writ App. at 50).
Again, the record is undisputed that Applicant
“angrily canceled” the arrangements with the
victim to do so. See i.e., Id. at *2-3.
19. Applicant’s also argues that by murdering the
victim, he somehow “gained custody” of their son
[LC] and thus did not kidnap LC. (Writ App. at
50).
1 Wherein the Court of Criminal Appeals discusses the evidence
at trial:
Although Appellant did not have visitation that day, Jelena had
agreed that Appellant could take the children to dinner and
then trick-or-treating.
Shortly before the scheduled visit, Appellant told Jelena that
they needed to exchange the children at her house instead of
the deli. Jelena did not know it but Appellant had been avoiding service of a motion by Deidre Adams, his first wife. Adams
and Appellant had a child together, J.C., and Adams had filed a
motion to enforce court-ordered child support. Appellant suspected that Adams was planning to serve him with that motion
at the deli. Jelena would not agree to exchange the children at
her house. Appellant angrily canceled the visit. Jelena was upset about this incident, which she relayed to multiple friends.
(emphasis supplied).
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20. The record fails to support Applicant’s theory of
default custody after the “death” of LC’s primary
custodian where it definitively shows that he
committed the premeditated murder of LC’s
primary custodian. (139 RR: 139-49; 140 RR:
21-22; 149 RR: 35-36; 150 RR: 133,135, 138, 148,
153,170-77); see also Calvert, 2019 Tex. Crim.
App. Unpub. LEXIS 584 at * 129 (“And there
was ample admissible evidence showing that
Appellant went to Jelena’s house intending to
kill Jelena and abduct L.C.”).
1. Applicant’s next subsection alleges that his trial
attorneys were ineffective for failing to “demonstrate the jury was aware of, and was detrimentally affected by, the court’s use of a stun belt.”
(Writ App. at 51).
2. On direct appeal, the Court of Criminal Appeals
noted from the record that the shock cuff was activated twice. Once before the trial began and
again after trial had started. Calvert, 2019 Tex.
Crim. App. Unpub. LEXIS 584, at *19-20. The
second activation was found by that Court to
have violated Applicant’s due process rights. Id.
at *24. However, that error was harmless:
On this record, we conclude that the shock cuff’s
activation outside the jury’s presence did not affect the jurors’ impartiality, nor Appellant’s presumption of innocence, nor Appellant’s ability to
be present at trial and participate in his own defense. We are confident beyond a reasonable
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doubt that the error did not contribute to the
conviction or punishment.
Culvert, 2019 Tex. Crim. App. Unpub. LEXIS
584, at *2b-27.
3. It is undisputed that this Court did not order activation of the stun cuff placed on Applicant’s
ankle either time. See (157 RR: 17) (Applicant’s
trial attorney states that, “. . . security personnel
did take it upon themselves, without instruction
from the Court, to impose their sense of discipline on Mr. Calvert.”); see also Calvert, 2019
Tex. Crim. App. Unpub. LEXIS 584, at *24 n.19
(“Unlike in Morris, the trial judge in this case
did not instruct deputies to shock the defendant;
rather, the deputies activated the shock cuff on
their own volition after appellant disobeyed their
instructions.”).
4. Applicant misrepresents that an alternate juror
has now “sworn that while situated with other
jurors after leaving the courtroom, she heard
Mr. Calvert yelling from the courtroom.” (emphasis supplied) (Writ App. at 51). However, the
“Declaration of Kathryn Kennedy Hopkins,” the
sole proof Applicant offers of this claim, is unsworn, unverified and even undated. See (Writ
App. Exhibit 10). It is likewise qualified as only
being “true to the best of [her] knowledge.” Id.
5. Even if assumed to be true, this unsworn statement still fails to establish that any other juror
actually heard Applicant yelling, understood why
he was yelling, or that hearing him yell “detri-
25a
mentally” impacted on their deliberations, which
began almost three weeks later. See (155 RR:
222; 161 RR: 157). At best, Ms. Kennedy Hopkins can only say that, at some point during the
months this case was tried, she heard Applicant
“yell” - not scream in pain - for some unknown
reason. There have been other times that Applicant has yelled in court. See i.e. (168 RR: 100-01).
6. This Court assumes that Ms. Kennedy Hopkins
was the alternate juror Ms. Kathryn Kennedy.
There was no person named “Kathryn Hopkins”
on Applicant’s jury and Ms. Kennedy Hopkins
fails to explain in her unsworn statement the
name difference. If it is her, she was not called
upon to take part in any deliberations either during guilt/innocence or the punishment phase.
(161 RR: 155-57, 161-62; 171 RR: 150).
7. If it is the same person, she could have no
knowledge of what the presiding jurors may have
discussed during their deliberations, or of any
impact such discussions may have had on their
verdict because she wasn’t there. Nor does she
claim that hearing Applicant yell would have
had a detrimental impact upon her own verdict if
she had deliberated. In short, Applicant’s false
assertions aside, there still remains no evidence
that the second shock incident had any effect,
much less a detrimental effect, upon the jury’s
deliberations or their guilty verdict. See (157 RR:
25-26).
26a
8. There is no evidence that trial counsel acted unreasonably after the second shock incident. Both
attorneys knew they faced a difficult strategic
decision about whether to poll the jury and risk
informing them about a negative incident that
they may otherwise be unaware of before deciding guilt. See (Affidavit of Mr. Cassel at 3; Affidavit of Mr. Haa, at 5). As Mr. Cassel explained
at a motion to recuse hearing, “. . . it was a
quandary for us in terms of, you know, do you
dig up a snake to kill it.” (1 RR: Recusal Hearing:
30).2
9. Under the first prong of Strickland. Applicant
must prove deficient performance by showing
that counsel’s action fell below an objective
standard of reasonableness. Strickland, 466 U.S.
at 688-89. An objective standard of reasonableness is defined by prevailing professional norms
at the time of trial, and there is a presumption
that counsel’s performance has conformed to
those norms. Id. To overcome the presumption,
Applicant must rely on evidence that is firmly
rooted in the record, unless no reasonable strategy could justify counsel’s conduct. Andrews v.
State, 159 S.W.3d 98. 102-03 (Tex. Crim. App.
2005). When no reasonable strategy could justify
counsel’s conduct, his conduct is deficient as a
matter of law. regardless of whether the record
adequately reflects counsel’s motivations for em2 The record of the hearing on Applicant’s 3rd motion to recuse
way filed with the STATE’S PRELIMINARY ANSWER … AND DESIGNATION OF ISSUES as “Attachment I.”
27a
ploying that strategy. Id. The Court of Criminal
Appeals reviews the performance of counsel by
considering the totality of the circumstances as
they existed at the time of trial, without the benefit of hindsight or by relying on only isolated
circumstances at trial. See Ex parte F1ores, 387
S.W.3d 626. 633-34 (Tex. Crim. App. 2012).
10. In this case, trial counsel expressed a reasonable
concern that polling the jury about the shock incident would expose them to evidence that portrayed Applicant negatively that they otherwise
would be unaware of before deliberating on
guilt/innocence. Counsel made the conscious and
strategic decision to not run that risk on the
firmly rooted fact that the jury was not in the
courtroom when the shock incident took place.
They did, however, make an unsuccessful motion
for mistrial based upon a deprivation of Applicant’s due process rights. (157 RR: 16-17).
11. The presumption that trial counsels’ strategy
was reasonable cannot be rebutted simply because Applicant now argues that a different
strategy should have been used. See Hawkins v.
State, 660 S.W.2d 65, 75 (Tex. Crim. App. 1983);
see also Morgan v. State, 403 S.W.2d 150, 152
(Tex. Crim. App. 1966) (“The practice of law is an
art as well as a science. As no two men can be
exactly alike in the practice of the profession, it
is basically unreasonable to judge an attorney by
what another would have done, or says he would
have done, in the better light of hindsight.”).
28a
12. Acting to keep evidence from the jury that portrays one’s client in a negative light is a decidedly reasonable and oft-deployed trial strategy. See
Bone v. State, 77 S.W.3d 828, 833 n.13 (Tex.
Crim. App. 2002) (quoting Garcia v. State, 57
S.W.3d 436, 440 (Tex. Crim. App. 2001)) (“an appellate court ‘commonly will assume a strategic
motivation if any can possibly be imagined,’ and
will not conclude the challenged conduct constituted deficient performance unless the conduct
was so outrageous that no competent attorney
would have engaged in it.”).
13. Under Strickland, Applicant must also show that
there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the
proceeding would have been different. Strickland, 466 U.S. at 694. In this case, the Court of
Criminal Appeals has essentially determined
that the record does not support the second
Strickland prong where the Court found the error to not be structural and “. . . beyond a reasonable doubt that the error did not contribute to
the conviction or punishment.” Calvert, 2019
Tex. Crim. App. Unpub. LEXIS 584, at *24, 2627.
14. The record remains the very same now as on appeal. There is still no evidence that any deliberating juror was actually aware of the second
shock incident when deliberating guilt and that
it detrimentally impacted upon their verdict.
29a
15. For these reasons, Applicant has not shown that
trial counsel acted unreasonably or that he was
prejudiced as a result under this subsection.
1. Applicant’s next subsection asserts that his trial
attorneys were ineffective for failing to move to
recuse the Court. (Writ App. at 54),
2. There were three motions to recuse the Court
that were heard and denied during the course of
the proceedings in this case. The first two were
filed pro se by Applicant at trial. See (37 RR:
6-168; 67 RR: 4-6). A third motion was filed by
Applicant’s writ attorneys shortly before the filing of this application. See (1 RR: Recusal Hearing: 3-42).
3. Assuming Applicant intends that trial counsel
should have sought yet another recusal motion
when they were brought back into the case after
his pro se representation was ended, that motion
would have been tertiary. See TEX. CIV. PRAC. &
REM. CODE § 30.016 (West 2019).
4. A tertiary recusal motion would have had no impact upon this Court’s ability to preside over the
case where the law expressly allows a trial court
the discretion to decline to recuse and to continue on “. . . as though a tertiary recusal motion
had not been filed.” Id. at § 30.016 (b). Just as
this Court declined to recuse itself in Applicant’s
first two pro se recusal motions, the Court would
have declined recusal had counsel filed a tertiary
motion upon being brought back into the case.
30a
5. The record shows that Applicant’s trial counsel
have long held the opinion that there were not
adequate grounds for recusal of the Court in this
case. (37 RR: 48-59, 64, 66-67, 75-85. 96, 102,
104-11, 143-44); see also (Affidavit of Mr. Haas at
7).
6. It is simply not true as alleged by Applicant that
the Court “. . . fitted Mr. Calvert with a stun belt
designed to deliver 50,000 volts of electricity, not
for safety reasons, but solely to enforce its preferred courtroom decorum.” (Writ App. at 54).
Instead, the Court intended provide a means for
courtroom security to obtain control of Applicant
in response to any situation that may arise. Applicant had a pattern of being disruptive. Being a
capital murder defendant representing himself
pro se necessarily meant he would need more
freedom of movement than a defendant merely
sitting with counsel at trial. And, the means of
control needed to be of a type that would not be
readily apparent or negatively impact the jury by
its mere presence.
7. During the pretrial phase of trial it was discovered that Applicant had fashioned a working
handcuff key and had possession of a razor blade
broken out of a jail-issued razor. (162 RR: 29-30,
48).
8. The record shows that Court also ordered tape
placed upon the courtroom floor to serve as unobtrusive boundaries intended to limit the range
31a
of Applicant’s movements during trial in the interest of courtroom security:
The floor’s marked out. You’re a capital
murder defendant, presumed to be innocent. Those markings on the floor, the
tape, you can’t go across them. It’s for the
safety of the court reporter, the jury, and
management of the trial by the court. You
already know you can’t approach a juror.
Neither can Mr. Bingham. You can’t approach witnesses. You have to send your
objections [sic] up through the bailiff.
(emphasis supplied).
(126 RR: 95).
•
•
•
•
It’s taped off so that the Court and the
deputies — in preserving the security of
the courtroom, there’s a piece of tape over
there. The one that runs from the tape
over to where Randy is now. that’s as far
as you can go towards a witness or towards the jury. That allows you to go to
that point. (emphasis supplied).
If you have an exhibit that you want to
ask a witness about — and this applies
to the State, too — if you’ve got an exhibit, you don’t approach the witness and
give it to the witness. You give the exhibit to Randy. He goes up and hands it to
the — the exhibit to the witness.
32a
So you don’t have any reason to be approaching a witness. And you don’t —
that line that’s taped off there, you don’t
go past that line. That gives you plenty of
leeway.
Where’s the other one down there.
Randy?
THE BAILIFF: It’s right here.
THE COURT: Okay. That’s running in
the way you’re going now. There’s going
to be a court reporter, another court reporter sitting down here in front of
Christy. And for security reasons, you
wouldn’t go across that tape towards —
you have no reason to approach that
court reporter. (emphasis supplied).
So it gives you plenty of leeway. And you
see where the marks are marked off. The
deputies know you’re not supposed to
cross those tape lines. You know, if you
do, they have the enforcement orders.
They know what to do.
So that — that just allows the Court to
ensure the security of personnel, the jury,
witnesses, court reporters who are here in
the court. That’s what the tape is for. You
can see them there. You can look down,
see where they are, but you need to be
aware of them. Do not go across them.
(emphasis supplied).
33a
(124 RR: 136).
9. Applicant also presents grounds for recusal
which he knows have previously been found by
presiding Judge Alfonso Charles to be premised
upon “materially false” representations at the
last recusal hearing. Compare (Writ App. at
54-55),
with
STATE’S
PRELIMINARY
ANSWER . . . AND DESIGNATION OF ISSUES at 3; see
also (1 RR: Recusal Hearing: 33-36, 40-42).
10. The remainder of the alleged grounds for recusal
consist of inconsequential statements the Court
made to Applicant during the course of the
3-year trial in this case. (Writ App. at 55).
11. The Court of Criminal Appeals has held,
“[e]xpressions of impatience, dissatisfaction, annoyance, and even anger, that are within the
bounds of what imperfect men and women’ may
display, do not establish bias or partiality.” Gaal
v. State, 332 S.W.3d 448, 454-55 (Tex. Crim.
App. 2011). Instead, the need for recusal is triggered only when a judge displays an “attitude or
state of mind so resistant to fair and dispassionate inquiry” as to cause a reasonable member of
the public to question the objective nature of the
judge’s rulings. Liteky v. United States, 510 U.S
540, 557-58 (Kennedy, J., concurring).
12. On the record and the law, there was little
chance of a successful tertiary recusal motion.
Applicant’s trial attorneys cannot be faulted for
not filing a frivolous motion. Nor can it be said
that there is a reasonable probability that the fil-
34a
ing of a tertiary motion to recuse would have
produced a different result.
13. There is no merit to this subsection and it should
be denied. See Perez v. State, 310 S.W.3d 890,
892-93 (Tex. Crim. App. 2010) (failure to prove
either prong of the Strickland test will defeat an
ineffective assistance claim).
1. Applicant’s next subsection makes the bare assertion that trial counsel was ineffective for not
requesting “a curative instruction regarding
Mr. Calvert’s demeanor” in response to the prosecutor’s argument. (Writ App. at 56-58).
2. Applicant does not suggest the content of such
an instruction, or show where an objection had
been sustained that warranted any additional
instruction. He also ignores that the jury spent a
great deal of time observing his demeanor while
he was representing himself pro se.3
3. The Court of Criminal Appeals seems to have decided against Applicant on this ground during
his direct appeal:
The
argument
followed
the
guilt-innocence portion of trial, where
Appellant represented himself until his
repeated disobedience caused the trial
Applicant was pro se from February 6, 2014. until September 15. 2015, which included voir dire and most of the guilt innocence phase of trial. (13 RR: 81: 155 RR: 222).
3
35a
court to reinstate his attorneys. The jurors did not hear Appellant testify, but
they could recall for themselves whether
Appellant “smirked” during most of the
trial. Moreover, although the record does
not itself reflect the “smirks,” it does reflect Appellant’s flippant attitude and
verbal sparring with witnesses, the prosecutor, the courtroom deputies, and the
trial court while representing himself.
After carefully reviewing the record and
performing the required harm analysis
under Rule 44.2(a), we hold beyond a
reasonable doubt that any error in failing
to sustain the Appellant’s objection to the
prosecutor’s argument did not contribute
to Appellant’s conviction or punishment.
Calvert, 2019 Tex. Crim. App. Unpub.
LEX1S 584. at *92.
4. That Court’s finding that any error in the prosecutor’s arguments was harmless makes it highly
unlikely that the lack of some hypothetical “curative” instruction, telling the jury to ignore
what they had already seen repeatedly, had any
impact on the outcome of the trial.
5. Applicant again fails in his two-pronged Strickland burden under this subsection.
6. The Court finds and concludes that there is no
merit to Applicant’s second claim for relief and it
should be denied.
36a
III. Applicant third claim for relief focuses on the
punishment phase and argues his trial attorneys
were ineffective for: (a) failing to secure an expert witness; (b) failing to call more than one lay
witness and, (c) failing to object to “prejudicial
statements made by the prosecution.” (Writ App.
at 59-72).
Findings of Fact and Confusions of Law:
Claim for Relief Three
1. Applicant alleges in his first subsection that his
trial attorneys were ineffective for failing to obtain the services of an expert mental health witness because, there were “clear mental health issues at play.” (Writ App. at 60).
2. The record shows that Applicant’s defense team
secured a mental health expert, Dr. Antionette
McGarrahan, to help them during the trial, but
that Applicant interfered with her assistance:
MR. HAAS: There’s also another issue.
We — early on, when we were representing Mr. Calvert, we sought the appointment of a psychologist, Toni McGarrahan. Toni McGarrahan read the record
and did some preliminary testing on
Mr. Calvert.
When Mr. Calvert then proceeded pro se,
this Court appointed Dr. Fabian to assist
Mr. Calvert.
THE COURT: Correct.
37a
MR. HAAS: Dr. Fabian visited with
Mr. Calvert in the jail, and he did some
further neuro-psych testing.
Once Mr. Calvert’s right to represent
himself was terminated, then again Toni
McGarrahan was going to come and finish and do some additional neuro-psych.
However, because Dr. Fabian had already done this neuro-psych testing,
through her ethics or professional standards, she wasn’t able to do so.
So we repeatedly asked, requested
Mr. Calvert to allow Dr. Fabian to turn
over his raw data to Toni McGarrahan,
which he refused to do, which put
Dr. McGarrahan in a bind. (emphasis
supplied).
And I will say, through the testimony of
Arambula and Dr. Gripon, and even before that, McGarrahan was of help to us,
sending us links to scholarly theses, [sic]
indicated that, for instance, paranoid, delusional — or excuse me — not delusional — personality disorder, that it tends to
lessen with age.
She sent me a copy of a paragraph out of
the DMS-V, which I cross-examined
Dr. Gripon with, and he finally admitted,
yeah, that’s the — that’s the position of
the APA.
38a
So it’s not like she’s just been sitting
there like a bump on a log not doing anything. She was talking to us about narcissism, antisocial personality disorder,
the components of each.
(170 RR: 7-8).
4. The same problem with Applicant interfering
with the defense team’s mental health expert’s
assistance is reiterated in the affidavits of counsel:
Trial Counsel had obtained the services
of Dr. Antoinette McGarrahan a psychologist to assist in the trial of this case.
Dr. McGarrahan conducted an initial
mental examination of Mr. Calvert, however when Mr. Calvert was allowed to
proceed pro se, the Court appointed
Dr. Fabian to assist Mr. Calvert. After
Mr. Calvert’s pro se status was terminated, and Trial Counsel undertook representation of Mr. Calvert, Mr. Calvert
refused to allow us to obtain the result’s
of Dr. Fabian’s reports to send to
Dr. McGarrahan. We intended to have
Dr. McGarrahan do follow up testing,
however, she advised us that she could
not conduct further testing because protocol and ethics wouldn’t allow it because
Dr. Fabian had conducted additional
testing . . . Mr. Calvert indicated that he
would
not
cooperate
with
39a
Dr. McGarrahan. Any failure to present
mental health evidence was due to
Mr. Calvert’s uncooperativeness. (emphasis supplied).
(Affidavit of Mr. Haas at 4-5).4
5. Not mentioned by Applicant under this subsection is the fact that he refused at trial to allow
the State’s mental health experts to interview or
test him. (38 RR: 19-20; 64 RR: 44-45; I CR: 129,
5 CR: 1109-12).
6. As a result, the defense team had severe legal
limits imposed on the kinds of mental health evidence that they were allowed to offer. See
Lagrone v. State, 942 S.W.2d 602, 610-11 (Tex.
Crim. App. 1997) (“Our sense of justice will not
tolerate allowing criminal defendants to testify
through the defense expert and then use the
Fifth
Amendment
privilege
against
self-incrimination to shield themselves from
cross-examination on the issues which they have
put in dispute.”).
7. Applicant faults trial counsel for failing to use
the very type of evidence that his refusal to be
interviewed by the State’s mental health experts
made inadmissible at trial.
4 Dr. McGarraban corroborate this in her affidavit attached to
the writ application. (Writ App. - Exhibit 8; see also (Attachment I - Affidavit of Mr. Cassel at 3).
40a
8. Applicant argues that counsel was ineffective for
failing to secure expert testimony to show that
he was “predisposed to depression” that was “exacerbated . . . as a consequence of his father’s
death” and which was also “compounded by the
fact that Mr. Calvert was the individual who discovered his father’s body.” (emphasis supplied)
(Writ App. at 61).5
9. Applicant does not cite to the source his italicized claim. There is no mention of it in the record. His application contains reports spanning
over a decade from five different mental health
professionals, several of the whom relay that
Applicant told them he lost his father at age fifteen, but not a single report states that he also
claimed to have “discovered his father’s body.”
See (Writ App. - Exhibits 1-3 5, 20).
10. The jury heard comprehensive discussions about
Applicant’s mental conditions and personality
disorders during the examinations of the State’s
mental health witnesses. (1 67 RR: 172-76,
179-84, 189-91, 193, 195, 199-204, 215-19, 221,
227, 239, 244-47; 168 RR: 27-45, 59-65, 70, 72-81,
88-96, 106-11).
11. Applicant alleges that expert testimony from
Dr. Schaffer would have “connected the dots” and
5 This is the very type of evidence that could only be uncovered
by a face-to-face interview with Applicant - which he denied to
the State. It would have thus been inadmissible at trial. See
Lagrone, 942 S. W .2d at 610-11.
41a
“assisted the jury in understanding how the psychological stress induced by the prospect of losing his children” would cause Applicant “to take
extreme measures to, as he saw it, protect his
family.” (emphasis supplied) (Writ App. at 6263).
12. Dr. Schaffer does not state that, in his opinion,
Applicant murdered the victim in front of their
son to “protect his family.”
13. Instead, Dr. Schaffer’s opines in his report that
Applicant murdered the victim during the course
of a “psychotic episode[]” caused by the stress of
his divorce from Ms. Sriraman, past-due support
owed to another of his ex-wives, and a family
court’s order allowing the victim to take their
kids to Houston to live with her new husband.
(Writ App. - Exhibit 1 at 15-16).
14. Applicant’s trial counsel nonetheless “connected
the dots” by arguing the exact same stressors
and frustrations (based upon the expert testimony and other evidence) as reasons why Applicant
“snapped,” killing the victim; and without these
stressors there will be no more future acts of violence. (171 RR: 72-74, 85, 92-94, 99-100, 106).
They also argued that Applicant’s paranoia and
his personality disorders, over which he had no
control, motivated much of his bad behavior.
(171 RR: 75, 94-95, 105-06). Consequently, the
jury heard the very arguments Applicant asserts
they didn’t and yet, by their verdicts to the special issues, rejected them all.
42a
15. Applicant has failed under this subsection to
show both an ineffective act by counsel and a resultant prejudice as required under Strickland.
1. Applicant’s next subsection alleges that trial
counsel were ineffective for “failing to present
lay witness testimony and documents.” (Writ
App. at 63).
2. The record shows that counsel called a single
punishment witness, Mr. Jason Calvert, Applicant’s cousin, then rested their case. (169 RR: 10,
111).
3. Both Mr. Haas and Mr. Cassel explain in their
affidavits that they decided to call only the single
witness for the reasons set out in Volume 170 of
the record. See (Affidavit of Mr. Cassel at 3; Affidavit of Mr. Haas at 6).
4. Volume 170 contains the following ex parte communications which took place immediately after
Applicant’s cousin, Jason Calvert, left the stand:
MR. HAAS: Judge, we have several other
witnesses who have been subpoenaed,
actually are here. But I’ve been down
this road too many times. The punishment stage of a capital murder case, oftentimes when defense punishment witnesses are presented, the positive is far
outweighed by the opportunity for the
State to just reemphasize and regurgitate the facts of the case and differences
of opinions.
43a
Now, Mr. Calvert, and rightfully so, he
wanted some evidence in front of the jury
that he loved his kids and that he was a
good dad. We picked his cousin to present that evidence, which he did. But for
everything you do, there’s a price to pay.
We — I am making a strategic decision
not to call any other witnesses who I
have subpoenaed. Frankly, their proposed testimony that they at one time
worked for Mr. Calvert or Mr. Calvert
worked for them, that he was seemingly
nice, peaceful, law-abiding, considerate,
polite, in my mind, that evidence would
be far outweighed by the opportunity for
the State to regurgitate: Well, did you
know that he was convicted for murder,
was on probation for assault family violence? Did you know this? Did you know
this? Did you know this? Did you know
this?
So we put on five or six marginal witnesses. That gives the jury five or six
more opportunities to have [sic] impressed with the negative evidence that
there is.
And, frankly, having done this numerous
times, whatever position I’m in right
now, I’m going to be criticized, if a death
sentence is imposed: Why did you do
this, or why didn’t you do you this?
44a
And sometimes there’s no good answers
other than you’ve got to look at the situation, make a determination as to the positives and the negatives.
(170 RR: 4-5).
5. The record shows that counsel had several punishment witnesses in line to testify. Prior to the
start of the punishment phase, they sought subpoenas for twenty-four lay witnesses. (25 CR:
5645-5698). The record shows that at least seven
of these were served with their subpoenas. (25
CR: 5686 (Carla Sue Gabbard), 5688 (Paul Adams), 5687 (Cathcy Clowers), 5690 (Ginger
Cardwell), 5689 (Nancy Ulrich), 5691 (Brenda
McClish), 5692 (Kim Hall)).
6. Mr. Cassel’s affidavit also explains that Applicant’s high opinion of himself was not held by
many of those that he wanted to have testify at
his trial:
The witnesses that he did direct us to
were weak or had nothing good to say.
For instance, Mr. Calvert subpoenaed
several witnesses during the guilt phase.
We spoke to a few that we had not previously identified and so did the State. One
in particular ended up testifying for the
State in punishment phase and hurt
Mr. Calvert badly as she provided testimony of Mr. Calvert’s mistreatment of
his ex-wife. He simply thought many of
these people had a higher opinion of him
45a
than what they did. Jason Calvert, according to Mr. Calvert, was his best witness. It did not take the State long to not
only make him look like a bad guy himself, but also to get him to distance himself from Mr. Calvert. (emphasis supplied).
(Affidavit of Jason Cassel at 3-4).
7. The record shows that the State greatly diminished any value Jason Calvert may have had as
“the
best”
defense
witness
during
cross-examination. (169 RR: 31-76, 89-105). A
fact which clearly led to Mr. Haas’ strategic realization that calling another five or six “marginal”
witnesses would only allow that many more opportunities for the jury to be “impressed with the
negative evidence that there is” during the
State’s cross-examination. (170 RR: 4-5).
8. After the conversion of Jason Calvert into a
State’s punishment witness, Mr. Haas reasonably believed that the best strategy was to not call
any other witnesses whose minimally positive
testimony would then be severely and repeatedly
impeached by Applicant’s bad acts.
9. Applicant further asserts that there were twenty-two witnesses available who were allegedly
ready and willing to “testify about Mr. Calvert’s
redeeming qualities.” (Writ App 64-65). Yet, he
names only five people and presents their potential testimony in the form of exhibits attached to
his writ: (1) Carla Sue Gabbard — Exhibit 7; (2)
46a
Frank Dobrovolny — Exhibit 11; (3) Ginger
Cardwell — Exhibit 12; (4) Kenneth Murray —
Exhibit 13; and (5) Shawn Cook — Exhibit 14.
10. Ms. Carla Sue Gabbard, Applicant’s former girlfriend, says that she would have told the jury
that he was helpful to her, never physically
threatened her, was stressed by his first divorce,
and loved his children. (Writ App. - Exhibit 7).6
This proposed testimony would essentially be
cumulative of what Jason Calvert had already
told the jury. (169 RR: 16-19, 23-24).
11. Ms. Gabbard further claims that, “[t]o the best of
my knowledge James never threatened Deirdre
[Adams - his 1st wife] physically.” Id. The jury
would have likely been puzzled by this claim as
they had already heard both Ms. Adams, and
Applicant’s sister [Ms. Debbie Campbell], testify
that Applicant had physically assaulted Deirdre
Adams on more than one occasion, choked her
many times, was convicted of a family violence
assault against her, and had even held a gun to
her head while threatening to kill her. (136 RR:
70-75, 94¬96; 165 RR: 85-87, 96, 100-06, 128,
134-35).
12. Mr. Frank Dobrovolny is an attorney who knew
Applicant as a computer consultant working at
his firm between 2007-2012. (Writ App. - Exhibit
11). He only saw Applicant “about two or three
6 Although Ms. Gabbard’s statement is styled as an “affidavit,”
it is unsworn.
47a
times per year.” Id. Mr. Dobrovolny states that
Applicant was, “always docile, gentle, kind, calm,
thoughtful and gracious.” Id. The day the “always docile, gentle and kind” Applicant was arrested
for
murder
and
kidnaping,
Mr. Dobrovolny drove to Louisiana to see him
and “James Calvert was glassy-eyed, hyper, and
appeared to be totally detached from reality” and
“ . . . not the same person I knew in my office.”
Id. Mr. Dobrovolny further states that, “I had
never known him to have any mental health issues.” Id.
13. On cross-examination it would have likely been
shown that Mr. Dobrovolny didn’t know Applicant well at all. Because, during the period he
worked for Dobrovolny, Applicant was also stalking a farmer girlfriend, Ms Rachel Parker, whom
he had lied to about being separated from his
wife and had previously drugged her drink, making her pass out. (165 RR: 28-32, 38,42-43, 48).
After hearing of the victim’s murder, Ms. Parker
was so afraid of Applicant that she called police
to tell them of his possible whereabouts. (165
RR: 46-47). She then stayed in her house until
she heard he had been arrested. (165 RR: 56).
14. During part of the same period when
Mr. Dobrovolny was spending time with Applicant, he was also getting divorced from the victim, stalking her and her friends and making
threats against them. (129 RR: 38; l 32 RR:
126-28, 130-31, 135 RR: 100. 102). And, as is
well-documented by the record, Applicant shot
48a
his then ex-wife to death, kidnaped his son and
fled the State in 2012.
15. Mr. Dobrovolny would likely also have been surprised to learn on cross-examination that Applicant has had “mental health issues” since 1999,
and was being treated for them the entire time
he was working as a computer consultant for his
firm. See (Letter/Report of Dr. Dunn at 2-3). In
fact, in April of 2011, Applicant was “briefly hospitalized in the psychiatric unit of the East Texas Medical Center” after he threatened to commit suicide. Id. at 3-4.
16. Ms. Ginger Cardwell states in an affidavit that
she lived next door to Applicant and the victim
for approximately five years, from 2004 to 2009,
and believes she knew them both well. (Writ
App. - Exhibit 12 at 1). She says that she never
had any suspicion that Applicant “was violent or
capable of violence.” Id. Ms. Cardwell continued
to hire him to do computer work even after the
couple filed for divorce and Applicant had moved
away from the home. Id. at 2. She describes Applicant as “kindly,” “smart” and “insightful.” Id.
However, at the same time she also describes
him as being capable of “acting out” and “suicidal.” Id. at 3. Nevertheless, she ultimately states
that Applicant was a “law-abiding citizen.” Id.
17. Ms. Cardwell would likely have been impeached
with the fact that Applicant was convicted for
assault family violence. And, that both his first
wife [Ms. Deirdre Adams]. and his sister
49a
[Ms. Campbell], testified that he had physically
assaulted Ms. Adams on more than one occasion,
choked her many times, and had held a gun to
her head while making threats to kill her.
(136 RR: 70-75, 94-96; 165 RR: 85-87, 96, 100-06.
128, 134-35).
18. She might also have had a change of heart to
hear that during 2008-2011, Applicant was
stalking a former girlfriend, Ms Rachel Parker,
to whom he had lied to about being separated
from his wife, and had previously drugged her
drink, making her pass out. (165 RR: 28-32, 38,
42-43. 48). Ms. Cardwell also seems unaware
that after Applicant moved away from the victim, he began stalking her and her friends and
making threats against them. (129 RR: 38; 132
RR: 126-28, 130-31, 135 RR: 100, 102). Finally,
her opinion of Applicant as being “kindly” and
“law-abiding” would have been seriously impeached by the brutal facts of the offense.
19. Mr. Kenneth Murray. was a member of the defense team. (114 RR: 3); (Writ App. – Exhibit 13);
see also (Affidavit of Mr. Haas at 3)
(“. . . Mr. Kenneth Murray, Director of the Texas
Defenders Service, who later became involved in
this proceeding urged Mr. Calvert to accept this
[State’s guilty plea] offer.”). His unsworn “Declaration” further details that he had privileged attorney/client discussions with Applicant’s trial
counsel and with Applicant. (Writ App. - Exhibit
13 at 1). The same does not detail any training
50a
or experience in making psychological diagnoses
- or even in the trial of a criminal case.
20. In Mr. Murray’s opinion, “Mr. Calvert often displayed erratic behavior, signs of paranoia and a
lack of trust, and obsession over details to the
point of losing the ability to focus on the proceedings. . .” and that this behavior “gave rise to significant concerns regarding his competence to
continue his self-representation.” Id. at 2-3.
21. There is serious doubt that Mr. Murray would be
legally entitled to testify as a defense punishment witness given that the opinions he expresses in his unverified “Declaration” are fully based
upon privileged information, are unsupported by
any psychological training or experience, and are
irrelevant to any issue at the punishment phase.
See TEX. R. EVID. 403, 503(a)(2)(B), 503(b), 702,
802; TEX. CODE CRIM. PROC. ANN. art. 37.071, see
also TEX. DISCIPLINARY RULES PROF’L CONDUCT
R. 308(a); Lagrone, 942 S.W.2d at 610-11.
22. Mr. Shawn Cook, a former business partner with
Applicant from 1995 on through 2009, has also
provided an affidavit. (Writ App. – Exhibit 14).
According to Mr. Cook, Applicant had a good relationship with his first son Jacob, but that
child’s mother, Ms. Deirdre Adams, harbored
“hostility” towards Applicant. Id. Mr. Cook was
apparently unaware of his business partner’s
proclivity to verbally and physically abuse his
significant others, claiming to have “never [seen]
51a
any signs of physical abuse in the Calvert family.” (Writ App. - Exhibit 14 at 2).
24. Mr. Cook would have likely been confronted on
cross-examination with the likelihood that
Ms. Adams’ “hostility” towards Applicant was
premised upon the fact that he had physically
assaulted her on more than one occasion, choked
her many times, and had held a gun to her head
while making threats to kill her. (136 RR: 70-75,
94-96; 165 RR: 85-87, 96, 100-06, 128, 134-35).
He would have been asked whether Applicant’s
conviction for assault family violence from 1999
might be considered “physical abuse in the Calvert family.” See (165 RR: 128-31; State’s Exhibit
381). And, the jurors might disagree with
Mr. Cook that Applicant shooting his ex-wife to
death did not constitute “physical abuse in the
Calvert family.”
25. Mr. Cook plays the role of psychologist diagnosing Applicant as “severely depressed” and suffering a “mental decline” due to the stress of his divorce from the victim. (Writ App. - Exhibit 14 at
2). He further relates Applicant’s moods would
change, “depending on the stress in his life; interactions with his mother, and whether he was
taking his medications.” The source of this information was apparently Mr. Cook’s personal
conversations with Applicant.
26. These “diagnoses” are unsubstantiated due to
Mr. Cook’s complete lack of authority, education
52a
and/or training in the making of psychological
diagnoses.
27. Applicant denied the State’s mental health experts the opportunity to converse face-to-face
with him. As a result, Mr. Cook’s non-expert
psychological opinions would have been inadmissible as defense punishment evidence because
they are clearly based upon hearsay from
Mr. Cook’s private conversations with Applicant
and are unsupported by any psychological expertise. See TEX. R. EVID. 403, 404(a)(2)(A), 702,
802; see also Lagrone, 942 S.W.2d at 610-11.
28. Mr. Cook further explains that, “. . . all [Applicant] wanted out of life was to have a family and
to be a good father.” (Writ App. - Exhibit 14 at 3).
Trial counsel concur that “[t]he main concern
that Mr. Calvert had throughout was showing he
was a good father.” (Affidavit of Mr. Cassel at 4);
see also (Affidavit of Mr. Haas at 5) (“Jason Calvert, testified for the mere purpose that [Applicant] loved his kids and wanted to be a good father.”).
29. On the record, it would thus appear that the
primary mitigating factor that Applicant wished
his trial counsel to present was that he always
desired to be a good father.
30. To that end, counsel had Mr. Jason Calvert testify that Applicant was a “great” father. (169 RR:
18). Home movies taken by Applicant were introduced and played for the jury. (169 RR:
20-22). The movies depicted Applicant being
53a
called “Daddy” by his children and enjoying playing with his and Jason Calvert’s children. (169
RR: 23-24).
31. In summary, the record supports trial counsels’
reasonable decision to not call these five punishment witnesses whose positive impact, if any,
would be “minimal” and grossly outweighed by
evidence showing Applicant’s repeated bad acts,
abusive conduct, and physical violence that he
directed towards women.
32. Applicant also makes the bare and inaccurate
allegation that trial counsel were ineffective
where they relied solely on Ms. Theresa Huffine
as a mitigation specialist who allegedly had no
capitol murder experience and no guidance;
whose investigation was “half-baked;” and she
failed to discover “key witnesses.” (Writ App. at
64).
33. The record instead shows that trial counsel fielded an impressive investigative team, led by a
well-experienced mitigation specialist who
helped guide the punishment phase preparation
— Mr. Gerald Byington, LCSW. See (State’s Attachment IV - Mr. Byington Info).
34. Court records attached to the State’s Supplemental Answer show that, at the time of his official appointment in November of 2014,
Mr. Byington, a Clinical Social Worker licensed
by Texas, had approximately fourteen years experience working full-time as a mitigation spe-
54a
cialist. Id. at Resume.7 And, he had previously
worked in that capacity on scores of capital murder cases. Id.
35. During the course of this case, Mr. Byington
submitted invoices showing that he actually began working with defense counsel in May of
2013, and thereafter spent over 400 hours in
preparing for Applicant’s trial. (State’s Attachment IV — Mr. Byington info: Invoices 1-3). The
same invoices show he met with trial counsel
numerous times; located and interviewed a multitude of witnesses; reviewed the State’s discovery; frequently corroborated with other investigators (Huffıne/Thorne/Parker) and defense experts; and worked on the punishment phase
strategy. Id. This Court ultimately paid
Mr. Byington the sum of 550,964.14 (including
expenses) for his work. Id.
36. Thus, directly contrary to Applicant’s claims,
Mr. Byington’s invoices detail that he led a comprehensive mitigation investigation that started
a year before trial and continued on into the punishment phase. The same invoices show his investigation was heavily informed by input from
trial counsel, other investigators, defense mental
The initial pre-trial phase of this case spanned roughly
2.5 years from 11/05/12 through 04/24/15. The general and individual voir dire occurred between 04/24/15 and 06/18/15. The
trial phase started on 08/25/15 and ended on 10/14115. See (1
RR: Master Index).
7
55a
health experts, defense witnesses, and Applicant’s mother. Id.
37. The record in this case shows that trial counsel
was provided with ample resources to prepare
for the punishment phase and utilized those resources in a reasonable and effective manner.
Applicant fails under the first Strickland prong
by failing to identify even a single “key” mitigation witness (and the content of his or her testimony) that was allegedly “missed” by counsels’
pretrial investigation.
38. Even were it assumed that a hypothetical “key”
witness was missed, to establish prejudice, Applicant must still show that there is a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would
have been different.” Strickland, 466 U.S. at 694.
A “reasonable probability” is “a probability sufficient to undermine confidence in the outcome.”
Id.
39. In the context of a deficient mitigation investigation, Applicant need not demonstrate that it is
“more likely than not” that the jury would have
assessed a life sentence; instead, the proper
question is whether there is a “reasonable probability” the jury would not have sentenced Applicant to death if the post-conviction mitigation evidence had been presented at trial. Id. at 694-95.
To answer that question, the Court must consider “the totality of the evidence — ‘both that adduced at trial, and the evidence adduced in the
56a
habeas proceedings.’” Wiggins v. Smith, 539 U.S.
510, 536. 123 S. Ct. 2527, 156 L. Ed. 2d 471
(2003). If, after introducing Applicant’s
post-conviction mitigating evidence into the punishment-phase evidentiary mix. the Court concludes that there is a reasonable probability that
at least one juror would have answered the mitigation special issue in his favor, then he is entitled to relief. Id. at 537.
40. Applicant presents five potential mitigation witnesses whose testimony ranges from being entirely inadmissible to barely relevant and, if admissible, would have been overwhelmed by the
evidence that Applicant was able to fool these
witnesses into thinking his character was anything other than cruel and abusive. Their glowing descriptions of Applicant as “gentle,” “docile”
and “law-abiding” would have been shown on
cross-examination to be completely misinformed.
And, the mitigating value the jury wanted to
give to evidence that Applicant desired to be a
good father can be gauged by their rejection of
Jason Calvert’s testimony to that very same effect. See (169 RR: 18-24).8
41. Under this subsection Applicant also misrepresents the record by claiming that “[n]o documenSee Buntton v. State, 482 S.W.3d 58, 82 (Tex. Crim. App.
2016) (“We defer to the jury’s finding that the mitigation evidence presented by the defense was not sufficient to tip the
scales against the evidence presented by the State of appellant’s future dangerousness.”).
8
57a
tary evidence—no school records, no medical records, no social history records—were presented.”
(Writ App. at 64). Applicant has not described
what documents he is referring to, or shown they
exist, or shown that his defense actually did not
obtain them. Assuming “medical records” and
“social history records” to mean the reports from
Applicant’s personal and family court-ordered
contacts with mental health professionals, his refusal to meet face-to-face with the State’s mental
health experts largely precluded their admission
at trial. See Lagrone, 942 S.W.2d at 610-11.
42. The record further shows that Applicant’s middle
and high school records, his Texas Junior College
records, and his Texas A & M records were all
admitted before the jury during the punishment
phase. (168 RR: 79).
43. For these reasons, Applicant fails under this
subsection to meet his two-pronged Strickland
burden, there is no merit and it should be denied.
1. In his next subsection, Applicant alleges that
trial counsel were ineffective for not objecting to
“numerous prejudicial statements made by the
prosecution during the penalty phase.” (Writ
App. at 68). Although couched in terms of the
prosecution making “prejudicial statements,”
Applicant points primarily to questions asked by
the State and the content of certain punishment
witnesses’ testimony. (Writ App. at 69-72).
58a
2. Applicant does not argue that this evidence was
not relevant or inadmissible under Art. 37.071 of
the Code of Criminal Procedure. See TEX. CODE
CRIM. PROC. ANN. art. 37.071, 2(a)(1) (“In the
proceeding, evidence may be presented by the
state and the defendant. . . as to any matter that
the court deems relevant to sentence. . .”).
3. The law has long provided that the admission of
unadjudicated extraneous offenses at the punishment phase of a capital case does not violate
due process. See i.e., Harris v. State, 827 S.W.2d
949, 96 1 -62 (Tex. Crim. App. 1992); see also
East v. State, 702 S.W.2d 606, 613 (Tex. Crim.
App. 1985) (lay witness is competent to give
opinion testimony as to an issue under
Art. 37.071 when the witness has sufficient familiarity with the defendant).
4. Applicant complains that counsel should have
objected when the State asked a former jailer,
Mr. Travis Baggett, who had contact with Applicant, “[C]an you imagine dealing with
Mr. Calvert for the rest of his life, as an employee, as a jailer . . . it’s that bad, isn’t it?” (Writ
App. at 69); (162 RR: 27-28).
5. The record shows that Mr. Baggett told the jury
that he had interactions with Applicant when
working as a jailer and that, “[h]e gave us some
issues quite regularly.” (162 RR: 24-26). In its
proper context, the testimony that trial counsel
allegedly failed to object to was as follows:
59a
Q. Let me — I’m going to show you,
Mr. Baggett — you knew eventually, one
way or the other, Mr. Calvert would be
gone from the jail?
A.
Well, most inmates are.
Q. Right. Because the jail is different
than the penitentiary.
A.
Uh-huh.
Q. And really that’s kind of a serious
question. If — can you imagine dealing
with Mr. Calvert for the rest of his life,
as an employee, as a jailer? Would you do
that?
A.
Well, no.
Q.
It’s just — it’s that bad, isn’t it?
A.
Yes, sir.
(162 RR: 27-28).
6. Applicant alleges that counsel was ineffective for
failing to object that, in this sequence of questions, “. . .the prosecution improperly stated as
opinion—through questioning—that Mr. Calvert
would be an ongoing danger.” (Writ App. at 69).
Other than making this bare assertion, Applicant offers no argument or authority in support.
The record clearly shows that the prosecutor did
not state an opinion that Applicant “would be an
60a
ongoing danger” by merely asking Mr. Baggett,
“it’s that bad?”
7. Applicant’s bare allegation, standing alone as it
does, is insufficient to prove this claim. Ex parte
Empey, 757 S.W.2d 771, 775 (Tex. Crim. App.
1988); See also East, 702 S.W.2d at 613 (lay witness is competent to give opinion testimony as to
an issue under Art. 37.071 when the witness has
sufficient familiarity with the defendant).
8. Applicant next offers a series of questions that
he alleges counsel should have objected to. (Writ
App. at 69-70). However, he fails to argue a single rule or case authority to show not only a basis for any objection, but also how he was
harmed. Id. He fails to provide the content of the
missing objections. These bare assertions of ineffectiveness are completely insufficient to support
any relief. Strickland, 466 U.S. at 694; Ex parte
Empey, 757 S.W.2d at 775.
9. Applicant alleges that counsel should have objected to evidence regarding the activation of his
shock cuff. (Writ App. at 70).
10. Trial counsels’ strategy apparently included
showing the jury that, although jailers would
testify about Applicant’s disrespectful conduct,
none of them could provide any proof of actual
physical violence. See i.e., (162 RR: 18-20; 171
RR: 74-75, 77-80, 98-99, 106). Thus, there would
be some evidence from jailers that Applicant
would not be a continuing threat to society as re-
61a
quired to be determined under the first Special
Issue. (162 RR: 18-19).
11. Objecting to the snippets of testimony about the
shock incident from just two out of twenty-four
State’s punishment witnesses would have been
counterproductive to this strategy — particularly
where that evidence showed Applicant was not
engaged in physical violence when it occurred.
12. Besides the strategical aspect, the jury learning
for the first time during the punishment phase
that bailiffs shocked Applicant did not implicate
the constitutional concerns applicable to the
guilt/innocence phase, such as jury impartiality,
the presumption of innocence, or the ability to
consult with counsel:
There are two primary ways in which a
shock cuff’s activation may adversely affect the fairness of a trial. The first way
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.
Calvert, 2019 Tex. Crim. App. Unpub.
LEXIS 584, *25.
13. Once Applicant was found guilty, his presumption of innocence is generally considered to have
62a
ceased to exist. See Deck v. Missouri, 544 U.S.
622, 632, 125 S. Ct. 2007. 161 L. Ed. 2d 953
(2005) (noting that “the defendant’s conviction
means that the presumption of innocence no
longer applies. Hence shackles do not undermine
the jury’s effort to apply that presumption.”).
14. Texas cases have also stated that the presumption of innocence generally does not carry over
into the punishment phase. See i.e., Marquez v.
State, 725 S.W.2d 217, 227 (Tex. Crim. App.
1987) abrogated on other grounds by Moody v.
State, 827 S.W.2d 875 (Tex. Crim. App. 1992)
(“Appellant’s right to a presumption of innocence
terminated after he was found guilty of capital
murder.”).
15. Given the law on the presumption of innocence
in the punishment phase, Applicant fails to provide any authority showing counsel were ineffective for strategically not objecting to the punishment testimony that he was shocked.
16. Moreover, error depriving a defendant of the
presumption of innocence does not require reversal where the court determines beyond a reasonable doubt that the error did not contribute to
the conviction or punishment. See TEX. R. APP.
P. 44.2(a); Bell v. State, 415 S.W.3d 278, 283
(Tex. Crim. App. 2013); see also Satterwhite v.
Texas, 486 U.S. 249, 256, 108 S. Ct. 1792, 1797,
100 L. Ed. 2d 284 (1988) (“[I]f the prosecution
can prove beyond a reasonable doubt that a constitutional error did not contribute to the verdict,
63a
the error is harmless and the verdict may
stand.”).
17. The presence of overwhelming evidence supporting the finding in question can be a factor in the
evaluation of harmless error. Wesbrook v. State,
29 S.W.3d 103, 119 (Tex. Crim. App. 2000). And,
the Court must consider the “totality of the circumstances” by examining the record as a whole.
See Miles v. State, 204 S.W.3d 822, 828 (Tex.
Crim. App. 2006).
18. Here, the complained-of shock evidence was
greatly outweighed by the other punishment evidence — including Applicant’s three-year reign
of terror over his jailers; his physical, emotional
and verbal abuse of practically every woman who
had the misfortune to care for him; his narcissistic and contemptuous behavior; the brutal facts
of the offense itself; and the intentional manner
in which Applicant placed his four-year-old son
in grave danger when fleeing from police.
19. On the record, it is not likely, much less reasonably probable under Strickland, that the failure
to object to this evidence had any substantive
impact upon the jury’s punishment verdicts.
20. Applicant’s next subsection argues his trial attorneys failed him by not objecting to evidence of
the racist verbiage he heaped upon transport officer, Deputy Ronald Sheffield. (Writ App. at 70).
21. Deputy Sheffield was a frequent target of Applicant’s never-ending anger and verbal abuse di-
64a
rected towards most of his transport officers and
jailers. See i.e., (164 RR: 196,198-201, 206-07,
224) (Applicant repeatedly referred to Deputy
Sheffield, a black man, as “boy,” called him a
“Negro,” and told him once that he “used to own
some Sheffields.”).
22. Applicant fails to supply any authority that
shows that this was inadmissible evidence under
Art. 37.071, or any other rule of law. He fails to
offer any suggestions as to the content of the
missing objection.
23. In the punishment phase of a capital murder
case, evidence of a defendant’s good character, or
a lack thereof, is expressly admissible. See TEX.
CODE CRIM. PROC. ANN. art. 37.071, § 2(a)(1):
Druery v. State, 225 S.W.3d 491, 507 (Tex. Crim.
App. 2007).
24. It does not constitute ineffectiveness for counsel
to not object to admissible evidence. Ex parte
Jimenez, 364 S.W.3d 866, 887 (Tex. Crim. App.
2012) (The failure to object to proper questions
and admissible testimony is not ineffective assistance).
25. The Court finds and concludes that there is no
merit to Applicant’s third claim for relief and it
should be denied.
IV. Applicant’s fourth claim for relief alleges that
the Court deprived him of his Sixth Amendment
right to counsel, “. . .because it prevented presentation of an effective defense.” (Writ App. at 72).
65a
Findings of Fact and Confusions of Law:
Claim for Relief Four
1. Applicant makes the bare assertion that he was
prevented from presenting an “effective defense”
when his trial counsel, while in standby mode,
refused to provide him with unspecified “mitigation materials” they had gathered. Id. Applicant
does not describe the content of the missing “mitigation material,” has not shown that he did not
have access to the same material; nor alleged
what constituted his “effective defense.”
2. In the Court’s experience, “mitigating material”
will consists of evidence of a defendant’s family
history, his past relationships, his education, his
work history, his medical and/or mental health
records. Consequently, any mitigating information counsel may develop is most likely to
originate from the defendant and/or would already be known by him.
3. Applicant alleges that trial counsel had a duty to
provide their mitigation materials because,
“standby counsel are appointed precisely in order
to effectuate the defendant’s Sixth Amendment
right to counsel” and cites to McKaskle v. Wiggins, 465 U.S. 168, 176, 104 S. Ct. 944, 79 L. Ed.
2d 122 (1984). (Writ App. at 73).
4. Applicant inaccurately represents the duties of
standby counsel and the holding of McKaskle.
Because,
a
defendant
waives
his
Sixth Amendment right to counsel when he
chooses to go pro se, an attempt by standby
66a
counsel to “effectuate” the defendant’s right to
counsel could constitute an interference with his
self-representation. Standby counsel must not
undermine the pro se defendant’s “actual control
over the case he chooses to present.” McKaskle,
465 U.S. at 178.
5. Violation
of
a
defendant’s
Sixth Amendment-secured autonomy ranks as
“structural” error and such an error will not be
subject to harmless-error review. Id. at 177, n. 8,
(harmless-error analysis is inapplicable to deprivations of the self-representation right, because
“[t]he right is either respected or denied; its deprivation cannot be harmless.”).
6. The Court of Criminal Appeals has mandated
that there is no “constitutional right in Texas to
hybrid representation,” which means representation “partially pro se and partially by counsel.”
See Landers v. State, 550 S.W.2d 272, 280 (Tex.
Crim. App. 1977).
7. The Supreme Court has identified two primary
limitations on the role standby counsel plays.
First, counsel’s participation must not undermine the pro se defendant’s “actual control over
the case he chooses to present.” McKaskle, 465
U.S. at 178. And second, in the context of a jury
trial, standby counsel’s participation (particularly over the pro se defendant’s objection) “should
not be allowed to destroy the jury’s perception
that the defendant is representing himself.” Id.
67a
8. Applicant appears to complain that the Court
failed to order standby counsel to conduct a mitigation investigation for a pro se defendant, Such
would go well-beyond the strictly limited role
understood as applicable to standby counsel and
into the realm of hybrid representation.
9. In this case, these constitutional implications are
not a concern as trial counsel were brought back
into the case well before the punishment phase
began.
10. Applicant also complains that, because he was
pro se and incarcerated, his “ability to gather evidence was obviously and significantly circumscribed.” (Writ App. at 72). However, the Court
warned him repeatedly before he chose to represent himself that trial preparation would be a
real problem because he was in jail. (14 RR:
39-43, 48). Applicant nonetheless insisted on going pro se. (14 RR: 63-65). He cannot now complain about the effectiveness of his own trial
preparation. Faretta, 422 U.S. at 834 n. 46; Williams, 549 S.W.2d at 189.
11. Applicant also alleges that the denial of access to
trial counsels’ mitigation materials was “structural error” citing McCoy v. Louisiana, ____ U.S.
____, 138 S.Ct. 1500, 200 L.Ed.2d 821 (2018).
McCoy says nothing remotely close to that.9 The
9 See Ex parte Barbee, 616 S.W.3d 836, 842 (Tex. Crini. App.
2021), wherein the Court described the holding of McCoy:
68a
facts of McCoy don’t include a pro se defendant
and are otherwise so far removed from the facts
in this case that its holding is completely inapplicable. McCoy, 138 S.Ct. 1505 (“We hold that a
defendant has the right to insist that counsel refrain from admitting guilt, even when counsel’s
experienced-based view is that confessing guilt
offers the defendant the best chance to avoid the
death penalty.”).
12. Applicant does not explain how this Court could
possibly give effect to his alleged “structural” error when he was removed as his own counsel
during the guilt/innocence phase of trial and
thus was not in any position to offer a pro se
punishment defense — whether it was effective
or not.10
13. Applicant has the habeas burden to allege facts,
which if true, would entitle him to relief. Ex
parte Maldonado, 688 S.W.2d at 116. Which
McCoy applied longstanding jurisprudence related to
defendant autonomy and structural error to a “stark
scenario,” holding that a capital murder defendant
has the right to insist that his counsel refrain from
admitting guilt of the charged offense. McCoy, 138 S.
Ct. at 1510-11. The violation of that right “was complete when the [trial] court allowed counsel to usurp
control of an issue within McCoy’s sole prerogative[,]”
thus foreclosing any need to demonstrate prejudice.
Id.
10 Applicant was pro se from February 6, 2014, until September
15, 2015, which included voir dire and most of the guilt, innocence phase of trial. (13 RR: 81; 155 RR: 222).
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means that he, “. . . must plead and prove that
the complained of error did in fact contribute to
his conviction or punishment.” Ex parte Barber,
879 S.W.2d at 891-92.
14. Applicant asks this Court to conduct a hypothetical harm analysis on a record that contains no
evidence that he was deprived of an unspecified
“effective defense” by this Court’s refusal to order hybrid representation. However, it is Applicant’s duty to “plead and prove” his allegations,
and not this Court’s responsibility to engage in
pure speculation.
15. The Court finds and concludes that there is no
merit to Applicant’s fourth claim for relief and it
should be denied.
(b). Claim For Relief Five: Due Process Violation
Applicant’s fifth claim for relief alleges that his
due process rights were violated by the prosecution’s failure to turn over exculpatory and mitigating evidence. (Writ App. at 75-78).
Findings of Fact and Conclusions of Law:
Claim for Relief Five
1. Applicant alleges that the State committed a
Brady violation simply because he was dissatisfied with the “format” in which discovery was repeatedly provided to him. (Writ App. at 75-78).
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2. On the record of this case, it is not true that the
State withheld exculpatory evidence from Applicant during the discovery process. The fact that
Applicant must speculate about the scope of the
“exculpatory” evidence he alleges was withheld
— and its materiality — only serves to highlight
the falseness of this claim. See (Writ App. at 78).
3. So do the quotes from the record that he has offered which reveal that Applicant requested that
the State be ordered to give him all of the discovery that was already provided to (and in the possession of) his stand-by counsel. (Writ App. at
76). The portions of the record quoted by Applicant are from a pretrial hearing held in March of
2014 and well before the start of trial in August
of 2015. And, these quotes are presented completely devoid of the context in which they occurred before being offered as the sole proof a
Brady violation by the State.11
11 “Applicant avoids discussing the fact that the State continu-
ously updated its discovery as required by law. (1 CR: 82-83; 2
CR: 307, 309, 311, 358-59, 387, 399-400, 426-28, 457-62, 588; 3
CR: 661; 4 CR: 1015-34; 6 CR: 1542; 8 CR: 1836: 9 CR: 2239; 10
CR: 2437: 11 CR: 2846-47, 2966; 12 CR: 3291, 3389; 14 CR:
3555, 3573-74; 15 CR: 3775, 4031: 16 CR: 4170-71, 4209; 17 CR:
4382; 18 CR: 4402: 19 CR: 4683-84,4688; 20 CR: 4690, 4820; 22
CR: 5083, 5196; 23 CR: 5307; 24 CR: 5490; 25 CR: 5584). Instead, he accuses the State of “dump truck” discovery tactics.
(Writ App. at 76-77). Applicant cites to irrelevant civil discovery cases to support this accusation, while neglecting to explain
exactly in what manner the State could have otherwise complied with its constitutional and statutory discovery duties in
this case.
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4. The record includes several hearings wherein it
was discussed that he was provided full discovery in various formats that were accessible with
the equipment provided to Applicant by the
Court, or with stand-by counsel’s assistance. See
i.e. (16 RR: 5-61, 73-79, 82-85: 18 RR: 7-10.
23-45; 20 RR: 4¬40; 21 RR: 9-40, 41-51; 23 RR:
6-13, 23-38; 25 RR: 8-9,15-26, 68-78, 94-98; 26
RR: 4-10; 30 RR: 109, 115; 32 RR: 98-99; 37 RR:
41-43; 40 RR: 166-67).
5. There were many pretrial hearings primarily
held to determine how full discovery could be
provided to Applicant along with the ability to
access the electronic forms of discovery supplied
to him by the State. (16 RR: 14-79; 20 RR: 4-39;
21 RR: 5-51; 23 RR: 4-36; 25 RR: 8-108; 30 RR:
3-59, 84-116; 32 RR: 6-16, 35-45; 98-107; 40 RR:
117-67). A fact that Applicant conveniently
leaves unmentioned throughout his discussion
under this ground — although he routinely
acknowledged it on the record prior to trial. See
i.e. (3 CR: 685-92; 718-20; 785-88; 8 CR: 1971; 10
CR: 2747-52; 13 CR: 3554: 25 RR: 91-92).
6. To intentionally complicate matters, Applicant
would sometimes refuse to sign the discovery receipts presented to him contemporaneously with
the items of discovery he was being provided. See
i.e. (30 RR: 1 19-21; 32 RR:13). He even filed a
pretrial motion seeking an order to not have to
sign for those items, which was granted. (32 RR:
19-20).
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7. The Court and the parties (including stand-by
counsel) diligently sought to provide every existent bit of Brady evidence to Applicant, as this
excerpt from a pretrial hearing illustrates:
THE COURT: What’s the title of your
motion? There’s a lot of motions. Let me
be sure I’ve got the right one in front of
me. Do you have it, Denise? I think
you’ve got the file.
THE DEFENDANT: It is defendant’s
motion to allow standby counsel to provide Brady material to defendant that
has been previously provided by State.
THE COURT: All right. Go ahead on
that motion.
THE DEFENDANT: Go ahead?
THE COURT: Yes, go ahead.
THE DEFENDANT: Well, the last time,
on June 19th, Mr. Cassel testified to
what was on the hard drive that basically I wanted. I had asked for Access databases, and he said, Yeah, it’s on the master, and he’s been provided the master
from the very beginning. He’s kept those
masters — he had two copies — and he
reviews one of them with me. So he
knows what’s on there, I know what’s on
there. That’s the data I’m trying to get.
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He’s testified that that information is on
there, contacts and so forth. That is on
the record from last time. He has testified that there’s no — that I’m — that
nothing that I’m asking for is improper,
and that it’s — that it should be okay,
that stuff that would make sense that I
would need, contact list. Obviously I
don’t need a copy — a cloned image of a
lawyer’s wife’s cell phone that I did work
for two years ago, four years ago, whatever. But I do need the database that has
all of my friends, family and contacts in
it, which is — that one file is probably
about 80 percent of everything that I
need to further my case. Mr. Cassel testified that all this stuff is okay, but I still
don’t get it. Mr. McLemee says, No, I
don’t know if it has any Access databases. That’s what he testified last time,
and he said — and so forth.
It was my understanding originally I was
to get everything except for executables,
which are programs, malicious scripts,
which are kind of like programs, and anything that would be considered contraband and not allowed at the jail, which
would be pornography and anything not
proper as far as the jail is concerned.
Mr. Cassel has testified that, Hey, none
of that stuff is on there as far as what he
wants.
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So I’m asking the Court now to allow
Mr. Cassel to provide me the Brady information that I’m seeking. Now, this
doesn’t have anything to do as far as the
suppression hearing and so forth, but it
does give me my information that I’m
looking for.
In addition to that, I’ve already talked to
Mr. Cassel, who’s communicated with
Mr. Bingham, that — and has got his input as far as what files should be on
there or not. And Mr. Cassel can further
up on that as far as if there’s any problem that the State has with something —
and the State, I mean Ms. Sikes,
Mr. Bingham, they can say, Hey, he
shouldn’t — he doesn’t need that.
So Mr. Cassel. in that respect, would say,
Hey, Calvert, you can’t have it, man, and
I would go, Okay. because I’m sure it
would be reasonable.
But what I’m getting right now through
Mr. McLemee and his production and so
forth, complained about since in the beginning, February 13th of last year, I’m
not getting what I need to further my defense. So this is the — basically a last
straw motion, and after this then it goes
up to the court of appeals to get a mandamus. And I don’t want to do all that,
Your Honor. I really just — I don’t have
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the time to do that. I need to further my
defense. But to further my defense, I
need that information. If it was something that was in dispute, and, you
know, I would say, Hey, I want the pictures of the naked girls or whatever, and
I say, And I’ve got to have those, then
that would be an issue I would understand as far as them being able to complain to it.
I do have telephone numbers of lawyers.
Unfortunately, a lot of my friends are
lawyers, a lot of my clients are lawyers.
That’s what I’ve done for the last 20
years is I’ve worked for lawyers and medical practices for the most part. So, yeah.
I do have a lot of lawyer information on
there. But I don’t need but a small smidgen of the data off of the hard drive, but I
do need the right data. If you give me a
million files and I need that million and
first file and I don’t get it, then those
first million files don’t do me any good at
all.
THE COURT: Mr. Calvert, if — and I’m
sure the Court has covered this with an
earlier order — any Brady material, any
exculpatory material, regardless of
where it is, on a computer hard drive, a
disc or wherever else, has already been
ordered to be turned over to you.
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THE DEFENDANT: Yeah.
TIIE COURT: Okay.
THE DEFENDANT: I’m not getting it
though. And I’ve done a motion to compel. It’s like, Can I get my Access database? And I know that the Judge —
Judge, Your Honor, you don’t know what
Access database is, but I know that
you’ve heard me say that.
TIIE COURT: Oh, I’ve heard a lot of
things said, and I do need an expert.
THE DEFENDANT: And. you know, you
—
THE COURT: But the only — the Court
orders any —.and has ordered more than
once
before,
and
I’m
confident
Mr. Bingham would be providing any
Brady material or any exculpatory evidence. I mean, that is all the Court can
do. I can’t sit here and write out a list of
all of it. If somebody wants to make a
presentation of it to me and say, This is
Brady, this is exculpatory. If the State is
saying, We don’t think it is, we’re not going to turn it over, then the Court will
make an order one way or the other.
That’s all I can do. I do it all the time in
other cases.
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THE DEFENDANT: Oh, I understand.
And I don’t even blame this on the DA
and the first assistant, because at the
end of the day it’s their computer consultant
who
makes
the
call.
Mr. Bingham doesn’t know exactly what
he’s producing to me because that’s just
not his job. He hires an expert, and the
expert goes — you know, but the expert
is not delivering what is said to be done.
So I’m still at the point — and this is, I
don’t know, the fifth motion now — and
I’m very diligent. I won’t give up as far as
getting the information.
THE COURT: Well, I don’t expect you to.
Your defendant’s motion to allow
standby counsel to provide Brady material to defendant that has previously
been provided to the State— if there has
been Brady exculpatory information,
Brady material or exculpatory information provided to Mr. Cassel, I’m sure
that Mr. Cassel in his experience would
recognize it and it certainly is ordered to
be turned over to you if it’s Brady or exculpatory information. That’s the only
order I can enter — if someone has it —
if it’s Brady, if it’s exculpatory. But
Mr. Cassel — and it’s hard for me to even
follow at this point all of these different
hard drives and computers and all of
that. You know, that’s just basically a
standing order in any case.
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THE DEFENDANT: I understand.
THE COURT: Brady, exculpatory evidence is to be turned over. I don’t know
what all Mr. Cassel has, but I have the
utmost confidence in him. He’s an officer
of the court, he’s an excellent attorney,
and if he sees something that’s Brady
material or exculpatory, he’ll be sure to
turn it over to you. If Mr. Bingham sees
Brady material or exculpatory evidence,
he’ll be sure it’s turned over to you.
THE DEFENDANT: Yeah, but —
THE COURT: That’s the order of the
Court, and these two lawyers do it time
and time again.
THE DEFENDANT: But there’s a problem somewhere in that happening, because, like I said, I understand
Mr. Bingham will say, yeah, he can have
the database. But by the time it gets out
of Mr. McLemee’s hands, it doesn’t get to
me.
MR. CASSEL: Judge, that’s part of it is
some of the information on the database
and the contact information for mitigating witnesses for Mr. Calvert is, I think,
essentially what he’s talking about. And
so with the restriction on what I can produce to him related to that hard drive,
therein lies the rub.
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THE COURT: Well, if you have the hard
drive, you can look at information on the
hard drive and you can say to Mr. Matt
Bingham here’s the information on the
hard drive that you believe is mitigating
or exculpatory or whatever that the defendant should be entitled to, then
Mr. Bingham can look at it and either
agree to provide it or we’ll have a hearing
on it. I mean, if that forensically or with
the computers can be done, that seems to
be where we are. I mean, it’s just that
simple.
MR. CASSEL: I’ll get with him.
THE DEFENDANT: To fix the problem
with that, what you said at the very end
is the problem. It’s not Mr. Bingham
looking at it and going he can have it or
he can’t have it. That’s fine. I understand
there being a filter process. The process
is Mr. Bingham is not the one that actually would provide it to me.
THE COURT: Okay. Let me sure you
understand. If Mr. Cassel is looking at
the hard drive, if he sees exculpatory evidence, mitigating evidence for you — exculpatory, mitigating evidence that
you’re entitled to under Morton, any of
the recent statutes or cases, he’ll — he
can, in whatever technological manner it
needs to be done, he’ll point it out to
80a
Mr. Bingham. Mr. Bingham will either
produce it in this form that he says
where he’s sure it’s not — can’t be tampered with. If he does not think it’s exculpatory or Brady and he doesn’t want
to turn it over, I’ll look at it and make
the decision. I don’t know any other way
to do it. We do it that way all the time.
THE DEFENDANT: What about just letting Mr. Cassel say, Here it is, James, after he got feedback from Mr. Bingham?
Because anything that they give me on
computer, I can edit, I can change. I’m
not saying I’m going to, but if they have a
concern of that, that’s too bad because THE COURT: No, it’s not too bad,
Mr. Calvert, because if it’s exculpatory, if
it’s mitigating, you’re going to be entitled
to it. And there’s nothing wrong with the
procedure where Mr. Cassel looks at it,
conveys
it
to
Mr. Bingham.
If
Mr. Bingham agrees, he put it in the
form where it’s acceptable to him, and
I’m talking about he agrees it’s exculpatory, mitigating, whatever, then he sends
it back. And then we have a Court that
can, through experts if it has to be done,
can make a determination if there’s any
dispute about it. And I know that
Mr. Bingham, if it’s anywhere close, he’s
going to turn it over. Now, that’s what
I’ve seen. I’ll look at each piece of it you
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want me to look at, but it’ll have to be
put in a format where I can understand
what I’m looking at. So I don’t understand how much further we can go than
that. You’re entitled to Brady, exculpatory, mitigating — and I’m not telling any
of these lawyers anything they don’t
know.
THE DEFENDANT: Right. But that
doesn’t mean I’m going to get it, so —
and that’s why I’m here THE COURT: It means you’re going to
get it if it’s presented to the Court. And
in the final judgment, this case, not unlike others — I mean, it’s the final determination of the Court if there’s an argument about whether or not it’s exculpatory or mitigating.
MR. BINGHAM: Maybe I’m THE COURT: I don’t know any other
way to put it.
MR. BINGHAM: Maybe I’m missing
something, but–
THE COURT: No, you’re probably not.
MR. BINGHAM: — but if you — if an
item is pointed to on the computer and
he goes, I want this, can’t we open it up,
look at it, print it off and then provide it
82a
— that way we know what it is, put it
onto something and give it to you? You
know what it is, I know what it is.
Mr. Cassel knows what it is. I don’t care
if the defendant has everything as long
as it’s not contraband, or, you know,
something that has a Social Security
number or address of somebody on it that
he shouldn’t have. But, I mean, the thing
is if he points to it and says, I want this,
this, this and this, we can print it off,
we’re looking at it, we know what it is,
Mr. Cassel and I get together and we
give it to him, and he knows what it is
because it’s printed off.
THE DEFENDANT: That would work for
regular documents obviously.
MR. BINGHAM: Okay.
THE DEFENDANT: But in this particular case it doesn’t work for Access database because you can’t print the database off. It’s just not doable unless, you
know —
MR. BINGHAM: Then we look at it, and
maybe the Court hires — appoints just
for purposes of transitioning the information — if he’s got a concern with
Mr. McLemee, appoint somebody that
none of us has ever heard, this computer
expert, to transition it to him.
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THE COURT: All right. If it comes down
to that, that’s what the Court will do.
But you can go a long way, I would imagine, before you get down to that point. A
lot of this I don’t think there’s going to be
a dispute about it.
MR. BINGHAM: I mean — and I think
we can open the Access files and look at
them, can’t we?
MR. CASSEL: Yeah.
MR. BINGHAM: Then just say okay and
we give him that Access file. I mean, it
seems like this isn’t complicated.
THE DEFENDANT: If you could just
say, yeah, Mr. Cassel, that Access file is
okay and Mr. Cassel goes, Here it is,
Mr. Calvert. When you have to go
through McLemee, it doesn’t end up to
me, and that’s what I’m saying.
MR. BINGHAM: Then why don’t — if
Mr. Cassel is in agreement, why don’t we
sit down and just do that and carry this
motion, see if we can satisfy it?
THE COURT: That’s what we will do.
MR. BINGHAM: And I’ll sit — I’ll go
meet with Mr. Calvert at Mr. Cassel’s
convenience and we’ll see if we can get
this — I don’t care — if he wants the in-
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formation and it’s okay to have it, I tell
you, I’d probably go down there and hire
the expert out of my own pocket if I could
get past these pretrials.
THE COURT: I don’t doubt that.
MR. BINGHAM: So we’ll get this done.
THE COURT: You can go ahead with
that if you want to —
MR. BINGHAM: No, I can’t.
THE COURT: — rather than leaving it
on the Court where I think you’ve got it
right now for the Court to pay for it. And
that’s all right, because the Court will be
glad to pay for it if it comes to it so we
can get this resolved, because I really believe we’re doing a lot of arguing here
about something that the high percentage of it y’all are going to agree on. Need
to go ahead and get off high center,
which I think we just did. I’m going to
carry the motion until you get with
Mr. Cassel.
THE DEFENDANT: I’m going to have to
enter my objections then, Your Honor, in
that you are not allowing me to have information that’s already been provided to
me.
85a
THE COURT: I haven’t even — what information?
THE DEFENDANT: The Brady information.
THE COURT: No, now just a minute,
Mr. Calvert. I’ve already ruled you get
the Brady information, but I’m going to
carry your motion to allow Mr. Bingham
to get with Mr. Cassel to review the data.
I’m not denying you any Brady or exculpatory information.
THE
DEFENDANT:
Then
can
Mr. Cassel be the one, since he’s the
keeper of it, be the one to provide it to me
on — using input from Mr. Bingham and
his better judgment as an officer of the
court?
MR. BINGHAM: That’s —
THE COURT: If it’s not — go ahead.
MR. BINGHAM: Because if we — why
don’t we wait and talk let the Judge carry the motion, we’ll all talk about it and
might very well be able to do that, and
just carry it until the next pretrial? I
mean, I’m not totally opposed to that, I
just want to sit down and talk about it.
THE COURT: We’ve all made our best
efforts to get this resolved. I’m carrying
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the motion and we’ll carry it over to the
next pretrial and I’ll give y’all a couple of
weeks to probably even be able to get
this done.
(32 RR: 98-111).
8. Furthermore, the record shows that, although
not required by law, the Court provided Applicant with a modified lap top, a printer. USB
storage flash drives, printer paper and replacement printer-ink cartridges with the understanding from Applicant that these items were to
be used solely in his defense to the charge in this
case. See (2 CR: 398, 431, 433, 437-40, 444,
563¬64, 569-70, 581; 3 CR 645; 39 RR: 7-12).
9. Applicant soon violated this privilege by using
the Court-provided computer, printer, paper and
other supplies to file approximately 200 documents in an unrelated child-custody matter and
to assist other inmates in their cases. See i.e. (6
CR: 1435-49; 7 CR: 1729; 39 RR: 80-236; 43 RR:
5-92).
10. After the Court ordered the previously supplied
computer equipment removed in response to Applicant’s abuse of that equipment, the Court then
supplied other electronic equipment that would
allow Applicant to view the numerous videos
supplied to him in discovery. See i.e. (55 RR: 532). The Court made it clear that Applicant, as a
pro se defendant, had the ability to ask to have
an expert appointed to analyze / recover data on
any electronic item that had been seized during
87a
the investigation in this case — and expressly
made that option available regarding item TPD121 which is Applicant’s home computer that
was not analyzed by the State. (44 RR: 94-97).
11. In Brady v. Maryland the Supreme Court held
that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material
either to guilt or to punishment, irrespective of
the good faith or bad faith of the prosecution.”
373 U.S. 83, 87, 83 S. Ct. 1194,10 L. Ed. 2d 215
(1963). “The State’s duty to reveal Brady material to the defense attaches when the information
comes into the State’s possession, whether or not
the defense requested the information.” Id. Giglio v, United States extended the rule in Brady
to include impeachment evidence as well as exculpatory evidence. 405 U.S. 150, 153-54, 92 S.
Ct. 763, 31 L. Ed. 2d 104 (1972).
12. To establish entitlement to a new trial based on
Brady violation, a defendant must demonstrate
that (l) the State failed to disclose evidence, regardless of the prosecution’s good or bad faith;
(2) the withheld evidence is favorable to him;
and (3) the evidence is material, that is, there is
a reasonable probability that had the evidence
been disclosed, the outcome of the trial would
have been different. Furthermore, the materiality of suppressed evidence is considered collectively, rather than item by item. Ex parte Carty,
543 S.W.3d 149. 174-75 (Tex. Crim. App. 2018).
88a
13. In this case, Applicant has not made any of the
required showings to establish a Brady violation.
He complains he was denied the ability to access
electronic information which is directly contrary
to a record that shows a constant effort on the
part of the Court to ensure that he was able to do
just that.
14. Applicant has failed to list even a single piece of
evidence that was in possession of the State that
was not disclosed to him, or that he did not otherwise have access to — if he wanted to access it.
15. Applicant has also failed to show that any evidence that was allegedly withheld was in fact favorable to him or “material” as that term is used
in Brady.
16. The Court finds and concludes that there is no
merit to Applicant’s fifth claim for relief and it
should be denied.
(c). Claim For Relief Six: Denial of Access to
Materials for Applicant’s Defense
Applicant complains under his sixth claim that
the Court imposed limitations upon his “access
to materials for his defense.” (Writ App. at
78-83).
Findings of Fact and Conlusions of Law:
Claim for Relief Six
1. Applicant asserts that “the State seized his laptop computer.” (Writ App. at 78). This allegation
89a
is misleading and misrepresents the record in
several aspects.
2. The record shows that the State did not seize
Applicant’s laptop computer. The said laptop
computer belonged to the Smith County IT Department, not to Applicant, and was provided to
Applicant by the Court solely to be used to assist
in his self-representation during the trial of this
case. See i.e. (40 RR: 23¬24, 29-30).
3. Applicant’s complaint under this ground is based
upon the fabrication that after the laptop was
seized pursuant to a search warrant as evidence
of a crime, he had no way to access a “significant
amount of mitigating information regarding images that Mr. Cassel has seen, family — the family tree information, home videos, and pictures of
the — kids and so forth. . . the Access Database,
the transcriptions, PDFs.” (Writ App. at 81).
4. Instead, the record shows that this same information was also contained in TPD-121, Applicant’s home computer that was seized under
warrant during the capital murder investigation.
Applicant was repeatedly told that, if he wished
to have access to the files and information in
TPD-121, all he needed to do was move the
Court to appoint a computer expert to retrieve
that information for him. For example:
THE DEFENDANT: The Access database, although it’s kind of moot now, was
never produced to me. Mr. McLemee was
going to be looking at it, and to do that
90a
and then nothing has ever happened,
and I never got Access database from the
State, so that’s —
THE COURT: Okay. Let me hear from
Ms. Sikes on that.
MS. SIKES: Judge, that’s the same item,
121, that Mr. Bingham spoke about and
that I made the argument about when I
was going through those items, one
through eight, when I said things had
changed. Item 121 is an item. a computer
that was seized from Mr. Calvert’s house
where he lived with his mother. Once we
said we weren’t using anything from
item 121, that if Mr. Calvert wanted to
hire an expert, 121 is in evidence, but we
weren’t going to provide anything else
from item 121.
THE COURT: All right. We’ve already
covered that, that if Mr. Calvert wants to
get an expert, file a motion with the
Court, have the Court appoint an expert
or someone skilled in that, whatever it
takes to take that off of 121. That’s already been covered.
(44 RR: 94-95).
•
•
•
•
MS. SIKES: And that would be information that he had. I’m going to stand by
91a
— as the Court said, I said exactly what
I meant, and I meant what I said.
Any discovery that we have with respect
to — and as this Court knows, I’m well
aware of what is Brady. I’ve taught the
Michael Morton Act in many different
places, and we don’t have any.
When he is talking about Brady, Brady
is information that part of Team State
would have that would be — go to show
— be good for him in some way; go to
show that he’s not the person that committed the crime; go to mitigate a possible punishment. The Court knows all
this.
What he’s talking about is — hasn’t produced evidence from that Item 121, those
are his computers and his evidence that
are currently contained within the PD,
Tim
McLemee’s
office.
And
as
Mr. Bingham said in many pretrials,
we’re not dealing with that anymore.
If Mr. Calvert wants to hire a computer
expert to look at what the police department has in evidence, great. We are not
producing anything off of Item 121,
We’re not using anything from Item 121.
I’m talking about discovery in our case.
(40 RR: 117-1 S).
92a
5. As an alternative Applicant’s stand-by counsel
also offered to be the filter through which he
could access the information on his home computer:
MR. CASSEL: Judge, what I would maybe suggest is I’m happy to do what I can
to facilitate Mr. Calvert getting the information related to contacts and things
and pictures and things like that that he
feels necessary for his defense. What I
can tell the Court is that if there becomes
an issue where — that maybe touches on
Mr. Bingham’s concerns about the integrity of the overall device, that if there’s
some concern that it’s been tampered
with or some allegation Mr. Calvert is
going to want to pursue with regard to
the actual forensics of the computer matter for some reason, obviously that’s not
anything he can do and he would need
somebody to assist him, and then maybe
at that point in time we could alert the
Court that, hey, there may be a need for
some third-party computer expert, a
trustee maybe, for lack of a better word,
to deal with that issue. But — and I don’t
know if Mr. Bingham’s more just concerned — if he is concerned about pictures or contacts and things of that nature - - if that helps; I don’t know if it
does or not.
93a
MR. BINGHAM: Well, I mean, if — what
I understand that Mr. Cassel has — and
I’ll just make mine real quick. What
Mr. Cassel has is a hard drive that’s a
virtual machine of what the original
computer was. It’s just the same thing,
because it’s copied on this hard file. It
can be changed, altered, whatever. If
that contains every possible document
that Mr. Calvert could want or picture or
whatever, if the defendant got with
Mr. Cassel and there was even — and
Mr. Cassel could assure us that the defendant didn’t touch anything, he just
said, I like that or could you pull that up,
and he’s just sitting over there with his
hands tied or whatever, for lack of a better expression, and Mr. Cassel said,
okay, you want that you, want that you,
want that. And then he got with me and
said, here’s what he wants, and we
looked at it and said, not a problem. And
then we got that into a form that could
be delivered to the defendant that we
knew the defendant couldn’t change or
alter and he had everything he wanted at
that point, I have no problem with that.
THE COURT: Sounds to the Court like
that should resolve it.
(32 RR: 88-89).
94a
6. There is no evidence in the record that Applicant
ever availed himself of any of these opportunities
to access the information he now alleges was
wrongfully withheld as offered by the parties and
the Court. It would have been as simple as making the request. Applicant has not even alleged
that he tried to obtain access in a way suggested
above and had that request denied.
7. Applicant fails to mention at all that the record
shows that, after he lost the use of the Court’s
laptop due to abuse of that privilege, the Court
mandated a procedure by which he could,
through standby-counsel, have full access to
whatever work product he had placed in that
computer. (Order on Work Product: 7 CR: 1729;
41 RR: 61-72; 49 RR: 34-35; 54 RR: 14-16). However, Applicant did not approve of the procedure
and the record shows that he refused to follow it:
THE COURT: Right. You did. So that —
my order is in place there. Your work
product will come off under the order I
entered from Mr. Cassel to review it, if
he determined it to be work product, to
have it pulled off and made available to
you, and you don’t want — you didn’t
want him to do it.
THE DEFENDANT: Well, Your Honor,
one, that order is not performable because he’s not able to —
THE COURT: Oh, it’s formal. It’s formal.
It’s file-marked. It’s formal.
95a
THE DEFENDANT: No. Performable.
TIIE COURT: No. It is performable. In
the Court’s view, it’s performable. If
Mr. Cassel tells me it’s not, that’s another matter.
THE DEFENDANT: Mr. Cassel has also
expressed an unwillingness or undesirability to do this based on —
THE COURT: No. You can — Mr. Cassel
can correct me if I’m wrong. Where
Mr. Cassel — he was going to carry out
the directives of the Court pursuant to
the order. Where he pulled up is when
you started standing up objecting to him
reviewing the computer to pull the work
product off.
THE DEFENDANT: Because, Your Honor, the work product is not on paper except for a very, very small part of it.
THE COURT: Okay. If it’s —
THE DEFENDANT: It’s on the computer. And on the computer, it cannot be
printed in the form that it is in to be
useable.
THE COURT: Well, you know, if you
hadn’t objected to it, regardless of your
objections, if Mr. Cassel goes in to make
the review to try to find the work product
96a
and he’s not able to carry out the Court’s
order because of the form you say it’s in,
he’s going to come back and report that
to the Court.
THE DEFENDANT: Well, Your Honor,
that’s been a couple of months now. He
can tell you —
THE COURT: It has been, because you
objected to him doing what the Court ordered.
THE DEFENDANT: That’s what I said.
So the order is not performable.
THE COURT: No. The order is only not
performable because you’re standing up
here saying it’s not performable. I’ll decide whether or not it’s performable once
Mr. Cassel tries to remove the work
product and identify it. If he tells me he
can’t, then I’ll make that decision.
THE DEFENDANT: Well, then I’d like to
hear from him then, as far as getting a
status update.
THE COURT: There’s not —
THE DEFENDANT: Because he’s sitting
there not able to do it.
MR. CASSEL: The only reason that I
have not attempted to do it — with a
97a
computer expert to do it to make sure
that I didn’t corrupt any files or do anything with respect to the files was because I had understood Mr. Calvert in
court had indicated he did not want me
to do it.
THE COURT: Well, that’s certainly what
I understood. My order provides and sets
out that you’d have a computer expert
appointed and paid to assist you in it.
And that’s — I mean, that’s the status.
That’s what the record is going to show. I
he only reason Mr. Cassel hadn’t got the
expert and already done it is because you
don’t want him to do it.
MR. CASSEL: And I have someone that’s
willing and able to do it. It’s just a matter of Mr. Calvert says: Look. I want you
to make that attempt. And then certainly
I’ll do it. If not. then I won’t.
THE COURT: That’s where we are.
THE DEFENDANT: And that’s what I’ve
already said on the record is it’s not —
because the paper version is useless to
me.
THE COURT: You can argue the paper
version all day long. The Court’s order is
in place. The Court is satisfied with the
Court’s order that Mr. Cassel can obtain
a forensic computer expert, which he’s
98a
done. He and Mr. Cassel can make the
review. Mr. Cassel knows work product
when he sees it. He’s one of your standby
counsel. That’s the order in place. And if
you don’t want him to do it, and that’s
what you’ve told the Court, then that’s
where we are.
THE DEFENDANT: Well, I know, and
then I’m without my work product.
THE COURT: As a result of you not
wanting it done. I’m not going to argue
with you about what you’re saying, it’s
unperformable, until Mr. Cassel goes into it with the expert and does what he
needs to do to pull the work product off
— it’s all in the order — with the assistance of the expert. If they can’t do it,
that would be a different situation. The
only thing he’s waiting on, and the reason he hadn’t done it, the reason you
hadn’t got it right now is because you object to him doing it.
(49 RR: 35-39).
8. The record leads to the inescapable conclusion
that Applicant, knowing full well what was on
the computer, did not really want access to it. He
wanted instead to be able to inject the false argument into the record that he was denied access
to that information by this Court.
99a
9. He now raises that complaint in complete contradiction of the record. A record that shows that
there were many such pretrial hearings held to
determine how full discovery could be provided
to Applicant along with the ability to access the
electronic forms of discovery supplied to him by
the State. (16 RR: 14-79; 20 RR: 4-39; 21 RR: 551; 23 RR: 4-36; 25 RR: 8-108; 30 RR: 3-59, 84116; 32 RR: 6-16, 35-45; 98-107; 40 RR: 117-67).
10. “The Sixth Amendment . . . grants to the accused
personally the right to make his defense.”
Faretta v. California, 422 U.S. 806, 819, 95 S. Ct.
2525, 2533, 45 L. Ed. 2d 562. A defendant electing to waive the right to counsel and represent
himself must do so competently and intelligently.
Id. at 835.
11. In United States v. Wilson, 666 F.2d 1241
(9th Cir. 1982), the defendant rejected court appointed counsel, but argued that the
Sixth Amendment right to self-representation
implies a right of access to legal facilities and
materials necessary to prepare his defense. Id. at
1244. The court in Wilson noted the Faretta
court’s recognition that a defendant who rejects
the assistance of counsel necessarily relinquishes
many of the benefits associated with representation by counsel. Id. at 1245. Availability of court
appointed counsel is a constitutionally adequate
means of access to research materials. Id. “A defendant may not effectively force the Government to provide a particular means of access to
the courts by denying the means offered.” Id.
100a
12. On the record of this case, that Applicant was
provided a means by the Court to access his
work product after his own malfeasance caused
him to lose the use of the court-supplied laptop.
However, he voluntarily chose not to avail himself of the manner of access offered by the Court.
The Wilson court noted that nowhere in Faretta
did the Supreme Court, “suggest that the Sixth
Amendment right to self-representation implies
further rights to materials, facilities, or investigative or educational resources that might aid
self-representation.” Id.
13. In this case the record shows that Applicant was
not denied due process — he specifically rejected
it.
14. The Court finds and concludes there is no merit
to Applicant’s sixth claim for relief and it should
be denied.
(d).
Claim For Relief Seven: Denial of Applicant’s right to a jury trial “due to juror
dismissals and non-represenative venire.”
Applicant’s seventh claim is that he was denied a
“fair cross section of the community” on his venire panel where he believes there was an insufficient percentage of Hispanic/Latino venirepersons. (Writ App. at 83-85).
101a
Findings of Fact and Contusions of Law:
Claim for Relief Seven
1. The Court of Criminal Appeals has repeatedly
held that complaints that should have been
raised on direct appeal but were not cannot subsequently be raised in a post-conviction habeas
application. Garza v. State, 435 S.W.3d 258, 26162 (Tex. Crim. App. 2014); Ex parte Jimenez, 364
S.W.3d 866, 880 (Tex. Crim. App. 2012). “We
have said countless times that habeas corpus
cannot be used as a substitute for appeal, and
that it may not be used to bring claims that
could have been brought on appeal.” Ex parse
Nelson, 137 S.W.3d 666, 667 (Tex. Crim. App.
2004).
2. That Court has also recognized that even constitutional claims may be forfeited if the applicant
had the opportunity to raise the issue on appeal.
Ex parte Townsend, 137 S.W.3d 79, 81 (Tex.
Crim. App. 2004). This is because the writ of habeas corpus is an extraordinary remedy that is
available only in the absence of an adequate
remedy at law. Id.
3. A complaint regarding the racial makeup of a
venire panel should be raised on direct appeal.
See i.e. Pondexter v. State, 942 S.W.2d 577,
580-83 (Tex. Crim. App. 1996); Butler v. State,
872 S.W.2d 227, 231-35 (Tex. Crim. App. 1994).
4. Although Applicant did allege certain voir dire
errors on direct appeal, he neglected to argue
that the venire panel was not representative of a
102a
fair cross section of the community. See Calvert,
2019 Tex. Crim. App. Unpub. LEXIS 584, at
*161-68.
5. As a result, Applicant cannot now complain
about the racial makeup of the venire panel in
this habeas corpus application. Ex parse Nelson,
137 S.W.3d at 667; Ex parte Jimenez, 364 S.W.3d
at 880.
6. Even if the Court chose to address this issue, the
record shows that Applicant’s motion to challenge the venire panel array failed to comply
with the Code of Criminal Procedure.
7. In his Motion to Challenge the Array, Applicant
merely hypothesized about the race of potential
jurors on the jury pool list provided to him by the
Court based entirely upon the last names of the
individual jurors. (DEFENDANT’S MOTION TO
CHALLENGE THE ARRAY: 14 CR: 3659-71). From
this he concluded, without offering any evidence
in support, that members of the Hispanic/Latino
race had been under represented on the venire
panel, “due to systemic exclusion of the group at
the jury selection.” (14 CR: 3663).
8. Applicant’s motion was properly denied where he
failed to comply with the Code of Criminal Procedure in the filing of his challenge to the jury
array, and where he failed to present any evidence to support his claim of an intentional systemic exclusion of members of the Hispanic race
from jury service on the panel assembled to try
this capital murder case.
103a
9. The Code of Criminal Procedure provides the
method for challenging a jury array in Art. 35.07,
which states:
Art. 35.07. CHALLENGE TO THE ARRAY. Each party may challenge the array only on the ground that the officer
summoning the jury has wilfully summoned jurors with a view to securing a
conviction or an acquittal. All such challenges must be in writing setting forth
distinctly the grounds of such challenge.
When made by the defendant, it must be
supported by his affidavit or the affidavit
of any credible person. When such challenge is made, the judge shall hear evidence and decide without delay whether
or not the challenge shall be sustained.
(emphasis supplied).
TEX. CODE CRIM. PROC. ANN. art. 35.07
(West 2015).
10. Applicant failed to comply with Art. 35.07 where
he did not attach “his affidavit or the affidavit of
any credible person” in support of his motion to
challenge the array.
11. The law provides that a motion that is not supported by an affidavit does not raise a proper
challenge to the jury array. Lacy v. State, 899
S.W.2d 284, 288 (Tex. App. - Tyler 1995, no pet.)
(“Where defendant filed a motion to challenge
the jury array but provided no supporting affidavit as required by Tex. Code Crim. Proc. Ann.
104a
Art. 35.07, a proper challenge was not presented
to the trial court, and no issue was preserved for
review.”); Brokenberry v. State, 853 S.W.2d 145,
149 (Tex. App. - Houston [14th Dist.] 1993, pet.
ref d) (challenge to the jury array failed where
defendant failed to support his argument with
his affidavit or the affidavit of any credible person, as required by Art. 35.07); Smith v. State,
149 S.W.3d 667, 672-73 (Tex. App. - Austin 2004,
pet. ref d) (“Defendant’s failure to present a
sworn affidavit, in compliance with Tex. Code
Crim. Proc. Ann. Art. 35.07, made his motion to
quash the jury array improper; thus, the trial
court was not obligated to hold a hearing.”); Stephenson v. State, 494 S.W.2d 900, 905 (Tex.
Crim. App. 1973) (the requirement of an affidavit
was firmly enforced; in its absence nothing is
preserved for review on appeal.).
12. Applicant’s challenge further failed where it did
not allege that “the officer summoning the jury
has wilfully summoned jurors with a view to securing a conviction or an acquittal.” See TEX.
CODE CRIM. PROC. ANN. art. 35.07 (West
2015); Brokenberry, 853 S.W.2d at 149 (To
properly challenge an array, the party must in
writing allege that the officer summoning the jury has wilfully summoned jurors with a view to
securing a conviction or acquittal.).
13. If Applicant’s assumptions regarding the race of
potential jurors were presumed to be true, he
still failed to show an intentional and systemic
exclusion of members of the Hispanic race. Ap-
105a
plicant did not provide the Court with any
sworn, or otherwise credible, evidence that the
manner in which Smith County selected the
members of his venire panel resulted in an unconstitutional systemic exclusion of members of
the Hispanic race. He merely assumed the race
of jurors based entirely upon their names and
then relied upon his bare assumptions to argue
hypothetical “quotas” of the race of potential jurors on the panel.
14. Even if the Court were to assume that Applicant’s calculations in his challenge were accurate, there is “no requirement that the petit juries actually chosen must mirror the community
and reflect the various distinctive groups in the
population” where the defendant lives. Taylor v.
Louisiana, 419 U.S. 522, 538, 42 L. Ed. 2d 690,
95 S. Ct. 692 (1975); see also Seuhert v. State,
787 S.W.2d 68, 70 (Tex. Crim. App. 1990) (same).
The law does not require proportionate representation of races on jury panels, only that the selection of the panel must be done without discrimination as to race. May v. State, 738 S.W.2d
261, 269 (Tex. Crim. App. 1987).
15. Moreover, as set out in Duren v. Missouri, 439
U.S. 357, 58 L. Ed. 2d 579, 99 S. Ct. 664 (1979)
and Castaneda v. Partida, 430 U.S. 482, 97 S.
Ct. 1272, 51 L. Ed. 2d 498 (1977), in order to establish a prima facie violation of the requirement
that there be a fair cross section of the community represented, Applicant must have shown: (a)
that the group alleged to be excluded was a “dis-
106a
tinctive” group in the community; (b) that the
representation of this group in venires from
which juries are selected is not fair and reasonable in relation to the number of such persons in
the community; and (c) that this under representation is due to systematic exclusion of the group
in the jury selection process. Duren, 439 U.S. at
364.
16. If the Court were to assume that Applicant had
met the first prong of Duren, because the group
allegedly excluded (Hispanics) is distinctive, he
still failed to carry his burden in meeting both
prong two, a showing of unfairness and unreasonableness, and prong three, a showing of systematic exclusion.
17. The Court takes judicial notice that in Smith
County, veniremembers are chosen randomly, by
computer through voter registration, driver’s license and identification card registration lists.
18. There is no evidence attached to Applicant’s motion that shows that the difference between his
assumed percentage of Hispanics in the county
and the percentage on the jury panel was in fact
not fair and reasonable. While on its face, Applicant’s assumed 5.4 percent of the array versus
the census 17.9 percent or greater county-wide
raises an inference of unfairness or unreasonableness, he completely failed to show that the
number of assumed Hispanics who qualified for
the selection process (registered voters, and
those with driver’s licenses or identification
107a
cards) were of the same or similar percentages as
the actual population of the county.
19. Applicant also failed to show “systematic exclusion.” His motion to challenge the array only assumed figures related solely to the last names of
members of the venire panel in this case. The
Court of Criminal Appeals has stated that “disproportionate representation in a single panel
does not demonstrate the systematic exclusion of
distinctive groups in violation of appellant’s
rights under the Sixth Amendment.” See May,
738 S.W.2d at 269; see also Pondexter v. State,
942 S.W.2d at 581 (same).
20. In unspoken acknowledgment that the record is
woefully insufficient to show a systemic exclusion of Hispanics at his trial, Applicant now asserts that “. . . there is at least a suggestion
that. . . there were no Hispanic/Latinos in the
venire at all.” (Writ App. at 85). However, as
previously stated, the veniremembers here were
chosen through voter registration, driver’s license and identification card registration by
computer.
21. The record shows that of the 1000 persons summoned to appear for jury service in that manner,
only 240 actually came to the courthouse as directed. (75 RR: 134 6). There is no way to know
the racial identity of the 760 summoned venirepersons who failed to show. Which is why the
law prohibits discriminatory intent in the selection of the venirepersons — the State has no con-
108a
trol over who decides they will attend or not. See
May, 738 S.W.2d at 269.
22. The Court finds and concludes there is no merit
to Applicant’s seventh claim for relief and it
should be denied.
Summary
1. The Court finds and concludes that the legal procedures in this case were proper and as provided
by the Constitution and Texas law.
2. The Court finds and concludes that the affidavits
of trial counsel in this case are consistent with
the record, and with the Court’s personal recall
of this trial, and thus constitute credible evidence in this case.
3. The Court, after review of the application for habeas relief, any answer, and the file, finds and
determines that there are no controverted previously unresolved facts material to the legality of
the defendant’s confinement.
4. Applicant has made many materially false factual assertions in this application that call into
doubt the veracity of any of his claims for relief.
5. The Court finds and concludes that the complaints in this application are not well taken and
the Court recommends that they should in all
things be DENIED.
109a
ORDER
The Court orders the Clerk of the Court to immediately transfer to the Court of Criminal Appeals:
(1)
a copy of the Application for Writ of Habeas Corpus and its attachments;
(2)
any answers, waivers and proposed findings executed by the State, including its
Preliminary Answer and its Supplemental Answer and their attachments;
(3)
a copy of these Findings of Fact and Conclusions of Law;
(4)
a copy of the files and docket sheets in
the original cause of action and the files
and docket sheets in the first Application
for Writ of Habeas Corpus; and,
(5)
This certificate.
SIGNED AND CERTIFIED on this ____ day of
_______, 2021.
/s/ Jack Skeen Jr.
HONORABLE JACK SKEEN JR.,
Judge. 24155 District Court
SMITH COUNTY. TEXAS
110a
Attachment I - Affidavit of Mr. Jason Cassel
111a
CAUSE NO. 241-1467-12
WR-85283-01
Ex parte
JAMES CALVERT
§
§
§
§
§
§
§
IN THE 241st
DISTRICT
COURT
COURT IN AND
FOR
SMITH COUNTY,
TEXAS
AFFIDAVIT OF JASON D. CASSEL
STATE OF TEXAS
COUNTY OF GREGG
§
§
§
BEFORE ME, the undersigned authority, on this
day personally appeared Jason D. Cassel, who is
known to me to be the person whose signature is
subscribed hereto as of affiant, who being by me duly
sworn on oath deposes and states as follows:
1.
I was co-counsel for Applicant James
Calvert in Cause Number 241-1467-12,
accusing Mr. Calvert of Capital Murder
in Smith County, Texas.
2.
I have been licensed to practice law since
November of 1998. I am Board Certified
in Criminal Law and currently serve on
the Criminal Law Exam Commission
which creates and grades the board certification exam.
112a
3.
I am licensed to practice in the State of
Texas and admitted to practice in the
federal courts of the Northern, Eastern,
and Southern Districts of Texas, the
United States Court of Appeals for the
Fifth Circuit and the United States Supreme Court. I have handled numerous
capital murder cases in the Northeast
Texas. Additionally, I have tried numerous felony and misdemeanor case jury
trials in state and federal court. I have
also handled numerous appeals in state
court.
4.
It has been over 5 years since this case
was concluded. There was a huge volume
of material in this case that the State
generated but also Mr. Calvert I have
done my best here to respond to the allegations in the writ based upon my
memory and very limited review of part
of the transcript of the trial proceedings.
Admittedly, time may have dimmed my
memory of certain details.
5.
Claim one states the we failed to secure
an independent expert who would have
testified that Mr. Calvert was incapable
of representing himself. This ground goes
onto allege that we failed Mr. Calvert because we acquiesced to the State’s choice
of doctor to perform the exam. This is
false. The Court had asked both parties
to submit names of qualified doctors. I
113a
provided the court with Dr. Mitchell
Dunn. The State provided some names
as well but there judge chose who to appoint based upon the names submitted.
At that time, if I recall correctly,
Dr. Dunn was on staff at Terrell State
Hospital. He had performed an exam in a
case for me in another county and I
thought him to be qualified. Mr. Haas actually attended the examination with
Mr. Calvert. After receiving Dr. Dunn’s
report, the Court allowed Mr. Calvert to
represent himself. Though we made numerous efforts to persuade Mr. Calvert to
change his mind on the issue, he persisted. I do not believe it is our place to interfere with his Sixth Amendment Right
to self-representation once granted by
the court. I believed that we did not have
standing, so to speak, to object to the
court’s ruling on self-representation lest
we violate his rights. Thus, we did not
try to shop for another expert to say that
he was not competent.
6.
Claim two states that we were ineffective
at the guilt phase. Specifically that we
failed to prepare affirmative defenses. In
Texas, affirmative defenses are “yeah,
but. . .” defenses meaning that one would
have to admit the conduct but offer a justification, i.e. self-defense or legal excuse,
such as insanity. The problem here is
that Mr. Calvert spent 5 months of trial
114a
denying the conduct and there is no conceivable justification in the evidence I
reviewed or heard from Mr. Calvert.
There was no hope for an insanity defense either. Given the extensive planning, from changing license plates to the
cache of weapons, plus the lack of a qualified opinion that Mr. Calvert was insane
at the time, this was a non-starter.
Moreover, Mr. Calvert had denied involvement in the murder, thus it would
be hard to argue he didn’t do it but if you
think he did then he was insane.
7.
The stun belt. When this occurred, it appeared to me that the jailers used it in
regards to Mr. Calvert failing to stand or
sit, I do not recall which. I can say for
sure that I never heard the court order a
jailer to use it. In fact, I was surprised
when it did occur. When he was shocked,
we were not sure if the jury had heard
Mr. Calvert yell or not as they had left
the courtroom and were likely walking to
the jury room which is down the hall
from the courtroom. We were concerned
about asking the court to bring jurors in
for questioning about whether or not
they heard the incident. We did not want
to draw their attention to the incident
and make a bad situation worse. It was a
“damned if you do, damned if you don’t”
situation. We did, however, move for a
mistrial given everything that we had
115a
seen up to that point in the trial, including the shock, which was denied.
8.
Claim three alleges a sundry list of failures, from failing to secure mental
health experts to not calling witnesses.
Volume 170 of the reporter’s record
spells out the reasons we did not call
more witnesses and why we didn’t have
more help from experts. Mr. Calvert
simply refused to cooperate or to make
his expert available. The witnesses that
he did direct us to were weak or had
nothing good to say. For instance,
Mr. Calvert subpoenaed several witnesses during the guilt phase. We spoke to a
few that we had not previously identified
and so did the State. One in particular
ended up testifying for the State in punishment phase and hurt Mr. Calvert badly as she provided testimony of
Mr. Calvert’s mistreatment of his exwife. He simply thought many of these
people had a higher opinion of him than
what they did. Jason Calvert, according
to Mr. Calvert, was his best witness. It
did not take the State long to not only
make him look like a bad guy himself,
but also to get him to distance himself
from Mr. Calvert. The main concern that
Mr. Calvert had throughout was showing
he was a good father. This was one of the
areas he thought Jason would help and
we tried. Additionally, he wanted to
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show pictures and videos of him with his
kids. These were the kids that he had
with the decedent. Most of the videos
that Mr. Calvert directed me to appeared
staged not to mention that we would
have a hard time providing a predicate
for their admission without him testifying since he made them. Everything appeared strained and exaggerated for the
video camera, as if they were made for
his family court battles. They were not
compelling and would, in our opinion,
provide very little other than to make
Mr. Calvert appear more bizarre and calculating. Some of the other witnesses cited by the writ as being favorable were
not. Specifically, I recall Matt Thigpen
telling us he did not want to be called
and would not be good witness or something to that effect, Cecilia Bush was a
terrible witness. At one point, she did
testify in pretrial hearing and even invoked her Fifth Amendment Right to
Remain Silent and requested that I be
her lawyer. I do not recall the entire contents of that hearing but I do recall that
after invoking the Fifth she seemed to
feign illness and the EMTs were summoned. I had spent enough time talking
to her prior this hearing to know she
would make a terrible witness. There
was a number of other witnesses
Mr. Calvert stated would be good for him
but that is not what our investigation
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uncovered but I cannot recall all the details at this point for each of them but
these are the ones that jumped out to
me.
9.
As for the allegation that we failed to
seek a curative instruction to comments
made by the prosecutor of Mr. Calvert’s
demeanor, we objected, pointed out the
perceived error and the objection was
overruled. We then moved for a mistrial.
That is the pattern for preservation error. I do not think it would have been
wise to continue to argue with the court
just as Mr. Calvert had done and further
alienate the jury. We preserved the issue
and moved on, just I have in the numerous other trials that I have been involved
in. Had the court sustained the objection,
we would have requested a curative instruction and then a mistrial, but this
was not the case.
SIGNED this ______ day of _____, 2021.
This document was acknowledged before me by
Jason Cassel on this _______ day of ________, 2021.
/s/ _________________________
Notary Public in and for the
State of Texas
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Attachment II - Affidavit of Mr. Jeff Haas
119a
CAUSE NO. 241-1467-12
WR-85283-01
EX PARTE
JAMES CALVERT
§
§
§
§
§
§
§
IN THE 241st
DISTRICT
COURT
COURT IN AND
FOR
SMITH COUNTY,
TEXAS
AFFIDAVIT
STATE OF TEXAS
COUNTY OF SMITH
§
§
§
Before me the undersigned authority personally
appeared Jeff L. Haas who after being sworn states:
My name is Jeff Haas and I am presently licensed to practice law in the State of Texas. I have
been licensed since 1981 and have been Board Certified since 1985. Throughout this period of time, I
have devoted approximately 99% of my time to criminal law defense. Pursuant to this representation, I
have defended numerous death penalty cases along
with other felony and misdemeanor offenses. I’ve also prosecuted numerous appeals both death penalty
and non-death penalty cases and prepared and prosecuted Writs of Habeas Corpus both death penalty
and non-death penalty. I feel like I am competent to
not only represent people at both the State and Federal trial level, but also at the State Appellate Level,
through various Courts of Appeals throughout the
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state. And the Federal Level, covering the Eastern
District of Texas and the Fifth Circuit.
On 13th day of January, 2021, the Court , in this
case, issued and served an order for me as first chair
counsel and Jason Cassel as second chair counsel to
respond to a Writ of Habeas Corpus fled on November 20, 2018, alleging various claims of Ineffective
Assistance of Counsel.
The Trial in this cause was held in the fall of
2015, and on April 6, 2016, I sent the bulk of my file
to writ counsel in Los Angeles, California. Consequently I have been unable to review my entire file
prior to responding to these allegations. Obviously
my memory is somewhat diminished since it’s been
almost 6 years since the trial was conducted. However I was able to review a portion of the report’s
record, and the little of what remains of my original
trial file.
The first issue that I was requested to respond to
relates to the competency of Mr. Calvert to represent
himself. It must be understood that Mr. Calvert previously represented himself in a divorce proceeding,
and contemporaneously with this cause there was a
suit to terminate Mr. Calvert’s parental rights. Brett
Ratekin was appointed by the court to represent him
in that proceeding, however Mr. Calvert in effect
fired Mr. Ratekin and represented himself in that
proceeding. Consequently Mr. Calvert was no
stranger to self-representation. It is my belief that
Mr. Calvert’s desire to represent himself hinges upon his desire to control the proceedings and from ear-
121a
ly on Mr. Calvert and I, for a better word, “butted
heads”. As evidence was provided to us, it became
evident that there was not much of a defense to this
charge; rather we should try to mitigate the damage
in order to obtain a favorable plea agreement. This
strategy was successful in that a very advantageous
plea agreement was offered by the State. Both myself and Mr. Cassel and Mr. Ken Murray, Director of
the Texas Defenders Service, who later became involved in this proceeding urged Mr. Calvert to accept
this offer. However Mr. Calvert wasn’t interested
and the trial proceeded.
As to the issue of competency to stand trial,
there is a fundamental 6th Amendment Right for a
Defendant to proceed pro se. I would submit that
this isn’t always the wisest course for a Defendant as
is obvious by what happened in this case, however
regardless of the foolishness of this endeavor, it’s the
Defendant’s fundamental right to do so. After
Mr. Calvert indicated his desire to have appointed
other counsel, which the court denied, rightfully so,
in my opinion because Mr. Calvert would not been
able to get along with any counsel, Mr. Calvert requested to proceed pro se, Judge Skeen admonished
him and gave him his Faretta Warnings and myself,
Mr. Cassel and later Ken Murray advised
Mr. Calvert that proceeding pro se was not in his
best interest. However this was to no avail and
Mr. Calvert persisted in his desire to proceed pro se.
Consequently Judge Skeen appointed a truly disinterested health expert Dr. Dunn, who I actually believe was suggested by Jason Cassel to examine the
Defendant. The Writ alleges that this mental exami-
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nation was a cursory examination, I beg to differ, I
was present during this examination and it took several hours. Dr. Dunn went in-depth into the proceedings and the difficult strategy choices that
Mr. Calvert would have to make since he was unversed in the practice of law. Dr. Dunns report concluded that Mr. Calvert was competent to represent
himself and trial proceeded.
There is an allegation that Trial Counsel was ineffective for not litigating the issue of Mr. Calvert’s
competency to stand trial. This allegation would put
Trial Counsel in a precarious position. As previously
stated, the Defendant has an absolute right to proceed pro se. To suggest that Trial Counsel should litigate against the clients expressed wishes after a
finding of competency, would, in my mind, be violative of his Constitutional right to proceed pro se.
Counsel suggests that if this issue would have been
litigated and had the Trial Court refused to allow
the Defendant to proceed pro se. There would been
an allegation that Trial Counsel was ineffective for
litigating this issue in violation of Mr. Calvert’s
Amendment Right to represent himself. Likewise,
the writ alleges that Trial Counsel was ineffective
for failing, during the preceding to raise the issue of
Mr. Calvert’s competency to continue to proceed pro
se. Trial Counsel will make the same argument. It
must be noted that when the Court allowed
Mr. Calvert to proceed pro se and appointed counsel
to act as standby counsel, a great deal of research
was conducted regarding the duties and obligations
of standby counsel. At bedrock, standby counsel has
a responsibility to do nothing to abrogate the right of
123a
the Defendant to proceed pro se. However, during
the trial, Trial Counsel provided vast amounts of research materials, cases, legal treatises etc. to
Mr. Calvert to assist him in his representation,
which he obviously used.
Trial Counsel believes that Mr. Calvert’s antics
during this trial was an attempt to basically show
who was in control. As an example of Mr. Calvert’s
competency, one need only look at Mr. Calvert’s response when after Mr. Calvert was relieved of his
pro se representation, he was asked if he wished to
testify at the punishment stage of the trial
Mr. Calvert responded
“THE DEFENDANT: Basically, Your
Honor, from what I understand under
Cantu v State and Fielder v State, that
the State could go into questioning facts
regarding the offense, and because of
that, I don’t think I would have any protection. So I’m going to invoke my Fifth
Amendment or I’m not going to testify.
I’m going to invoke my Fifth Amendment
right.
THE COURT: You’re going to invoke
your Fifth Amendment privilege and not
testify before the jury at sentencing; is
that correct?
THE DEFENDANT: Correct. . . .
THE DEFENDANT: Obviously, I strongly disagree with that.
124a
THE DEFENDANT: I also disagree that
you’re not offering more evidence as far
as pictures, videos and so forth that I believe that you could have done without
calling more witnesses.
But, regardless, because of that, I’m not
in a position and I don’t believe that I
would be protected if I open myself up
and — regardless, I’m not going to testify
during the penalty phase. I would want
to, but I do not feel that — I feel more
harm would probably come if I did that.”
(RRV170)
There is an allegatino that Trial Counsel was ineffective for not attempting to introduce videotapes
and photos of Mr. Calvert’s family during the trial of
this case. Our investigation revealed that most of
these photos and videotapes if not all, were taken in
the context of family law cases and in effect were basically staged. Trial Counsel believed that this would
be additional evidence regarding Mr. Calvert’s need
to control and manipulate. In addition, without
Mr. Calvert taking the stand and testifying, it would
have been difficult if not impossible to properly lay
the predicate for the admission of photos and video
tapes without being able to lay the foundation where
and when etc. these photos and videos were made.
There is an allegation that Trial Counsel was ineffective for not raising the insanity defense even
though Mr. Calvert had discussed the insanity defense during voir dire. The response is basically
125a
there was absolutely no evidence to reflect that
Mr. Calvert was legally insane at the time of the
commission of this offense. I believe that this issue
was discussed with Dr. McGarrahan, a psychologist,
who was appointed to assist the defense. If I remember correctly, due to the planning involved, and the
lack of a serious mental disease or defect, this line of
defense would have been fruitless.
There is an allegation of Trial Counsel was ineffective for failing to provide an independent mental
health examination. Trial Counsel had obtained the
services of Dr. Antoinette McGarrahan a psychologist to assist in the trial of this case.
Dr. McGarrahan conducted an initial mental examination of Mr. Calvert, however when Mr. Calvert
was allowed to proceed pro se, the court appointed
Dr. Fabian to assist Mr. Calvert. After Mr. Calvert’s
pro se status was terminated, and Trial Counsel undertook representation of Mr. Calvert, Mr. Calvert
refused to allow us to obtain the results of
Dr. Fabian’s reports to send to Dr. McGarrahan. We
intended to have Dr. McGarrahan do follow up testing, however, she advised us that she could not conduct further testing because protocol and ethics
wouldn’t allow it since Dr. Fabian had conducted additional testing. In addition, to counsel’s memory,
Mr. Calvert indicated that he would not cooperate
with Dr. McGarrahan. Any failure to present any
mental health evidence was due to Mr. Calvert’s uncooperativeness. Dr. McGarrahan did assist us during the cross examination of Dr. Arambula and
Dr. Gripon. However, even if she would have been
able to testify at trial, she would have testified that
126a
even though there was lack of evidence of psychopathic tendencies, the degree of narcissism
Mr. Calvert suffered from would make him a dangerous person; in effect her testimony, even based on
the minimal testing she conducted, would have mirrored the testimony of Dr.’s Arambula and Gripon.
There is an allegation that Trial Counsel was ineffective because psych records were not entered into
evidence, however it appeared as if most of these
psychological reports were the result of court ordered
examinations arising from family law cases, I feel as
if Dr. Gripon and Dr. Arambula adequately discussed this during their testimony.
Additionally, members of the defense mitigation
team spoke to numerous potential witnesses. Trial
Counsel, felt their potential testimony, would not
have been particularly beneficial, but rather would
have done more harm than good. Again, this was set
out in the Ex Parte Hearing reflect in R.R. V 170.
Mr. Jason Calvert, testified for the mere purpose
that Mr. Calvert loved his kids and wanted to be a
good father. Trial Counsel knew that Jason Calvert
would be cross examined, but we felt that this one
fact was important fo the jury to hear.
There is an allegation that Trial Counsel was ineffective for not doing more regarding the stun belt
incident. Again, as reflected in volume 170 of the reporter’s record, we addressed issues regarding Trial
Counsel’s strategic decisions. Particularly regarding
the stun belt incident we had the choice to either
bring the jury back in and ask them about the stun
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belt incident, running the risk that if the jury had
not heard the scream, then the stun belt incident
would been brought to their attention. We did not
know whether or not the jury had heard Mr. Calvert
scream from the stun belt so we made a strategic decision to not poll the jury.
There is an allegations of Trial Counsel was ineffective for not raising the issue of Mr. Calvert’s upbringing and the circumstances surrounding his
raising. Trial Counsel felt through the accumulation
of witnesses regarding Mr. Calvert’s mother being
cold and evil and Mr. Calvert sister describing his
upbringing that this topic was discussed sufficiently.
There is an allegation that Trial Counsel was ineffective for not calling additional witnesses. Again
this issue was addressed during an ex parte hearing
contained in reporter’s record 170. However, . . . in
particular, Trial Counsel remembers talking to
Frank Dobrovolny and I believe Matthew Thigpen.
Both of these people are lawyers and there was evidence that Mr. Calvert hacked into Cameron Castleberry’s, his ex wife’s family law attorney’s computer
and obtained records and I believe a photo of
Mr. Castleberry’s wife, this would be prime fodd
This text is long and has been trimmed here. Open the source document for the complete record.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.