Haley, Calvin Jr ( 2022 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-94,076-01
EX PARTE CALVIN HALEY JR., Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 923573-A IN THE 179TH DISTRICT COURT
FROM HARRIS COUNTY
Per curiam. NEWELL, J., concurred.
ORDER
Applicant was convicted of murder and sentenced to ninety-nine years’ imprisonment. The
First Court of Appeals affirmed his conviction. Haley v. State, No. 01-03-00704-CR (Tex.
App.—Houston [1st Dist.] Oct. 28, 2004) (not designated for publication). Applicant filed this
application for a writ of habeas corpus in the county of conviction, and the district clerk forwarded
it to this Court. See TEX . CODE CRIM . PROC. art. 11.07.
This application was file-stamped in Harris County on August 10, 2006. An order
designating issues was signed by the trial judge on September 1, 2006. Although Applicant filed this
application with the help of habeas counsel, Applicant filed pro se letters in the trial court in 2007,
2009, and 2013, inquiring about the status of this pending application. An order requesting an
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affidavit from trial counsel was signed by the trial judge on January 21, 2016. The application was
not received by this Court until August 24, 2022. There is no indication in the record of any action
by the trial court since ordering counsel to file an affidavit, and there is no indication that counsel
ever filed the affidavit as ordered. Nor is there any indication as to why this application was pending
in Harris County for so long without any action by the clerk or the trial court.
Applicant contends, among other things, that trial counsel was ineffective for presenting the
testimony of firearms expert Charles Anderson during the defense’s case-in-chief at trial. Applicant
alleges that counsel hired Anderson on the morning he testified, that Anderson looked at the murder
weapon (a gun) during a trial recess, and that Anderson then testified that there was nothing wrong
with the weapon. Applicant has alleged facts that, if true, might entitle him to relief. Strickland v.
Washington, 466 U.S. 668 (1984). Accordingly, the record should be developed. The trial court is
the appropriate forum for findings of fact. TEX . CODE CRIM . PROC. art. 11.07, § 3(d).
As a preliminary matter, the trial court shall make findings of fact as to why no action was
taken by the trial court or the clerk between the entry of the order designating issues and the
forwarding of the application to this Court. The trial court shall obtain a response from Applicant
as to whether Applicant still wants to pursue this application, and shall include that response in the
supplemental record. If the trial court is unable to obtain such a response from Applicant, the trial
court shall detail the efforts that were made to obtain a response from Applicant. The trial court shall
then return the application to this Court.
If Applicant indicates that he does want to pursue this application, the trial court shall order
trial counsel to respond to Applicant’s claim. In developing the record, the trial court may use any
means set out in Article 11.07, § 3(d). It appears that Applicant was represented by habeas counsel
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at the time he filed this application but is no longer. If the trial court elects to hold a hearing, it shall
determine whether Applicant is indigent. If Applicant is indigent and wants to be represented by
counsel, the trial court shall appoint counsel to represent him at the hearing. See TEX . CODE CRIM .
PROC . art. 26.04. If counsel is appointed or retained, the trial court shall immediately notify this
Court of counsel’s name.
The trial court shall make findings of fact and conclusions of law as to whether trial counsel’s
performance was deficient and Applicant was prejudiced. The trial court shall make specific
findings as to when counsel retained Anderson, how much time Anderson spent evaluating the
murder weapon, and what impact Anderson’s testimony that there was nothing wrong with the
murder weapon had on the defense. The trial court may make any other findings and conclusions
that it deems appropriate in response to Applicant’s claims.
The trial court shall make findings of fact and conclusions of law within ninety days from
the date of this order. The district clerk shall then immediately forward to this Court the trial court’s
findings and conclusions and the record developed on remand, including, among other things,
affidavits, motions, objections, proposed findings and conclusions, orders, and transcripts from
hearings and depositions. See TEX . R. APP . P. 73.4(b)(4). Any extensions of time must be requested
by the trial court and obtained from this Court.
Filed: December 07, 2022
Do not publish