Calton, Allen F.

PD-0822-15
NO. ________________
TO THE COURT OF CRIMINAL APPEALS OF TEXAS
Allen Fitzgerald Calton, Appellant
v.
The State of Texas, Appellee
*************
APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
***************
FROM THE COURT OF APPEALS
SECOND APPELLATE DISTRICT OF TEXAS
FORT WORTH, TEXAS
NO. 02-14-00158-CR
TARRANT COUNTY
TRIAL COURT NO. 0843168D
R. Scott Walker
STATE BAR # 24004972
222 W. Exchange Avenue
July 2, 2015 Fort Worth, TX 76164
(817) 478-9999
(817) 977-0163 FACSIMILE
scott@lawyerwalker.com
Attorney for Appellant
Oral Argument Not Requested
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IDENTITY OF TRIAL JUDGE, PARTIES, AND COUNSEL
The following is a complete list of all parties,
as well as the names and addresses of all counsel.
Trial Judge: HONORABLE LOUIS STURNS
Appellant ALLEN FITZGERALD CALTON
Trial Counsel PRO SE DEFENDANT
Appellate R. Scott Walker
Attorney for Appellant Attorney at Law
222 W. Exchange Avenue
Fort Worth, Texas 76164
Appellee The State of Texas
Trial Attorney for David Hagerman &
Appellee Charles Brandenberg
Tarrant County Assistant
District Attorneys
401 W. Belknap,
Fort Worth, Texas 76196
Appellate Attorney for Sharen Wilson
Appellee Tarrant County
District Attorney
401 W. Belknap,
Fort Worth, Texas 76196
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TABLE OF CONTENTS
PAGE
IDENTITY OF PARTIES AND COUNSEL . . . . . . . . 2
TABLE OF CONTENTS . . . . . . . . . . . . . . . 3
INDEX OF AUTHORITIES . . . . . . . . . . . . . . 4
STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . 4
STATEMENT OF THE CASE . . . . . . . . . . . . . . 5
STATEMENT OF PROCEDURAL HISTORY OF THE CASE. . . 6
QUESTION PRESENTED . . . . . . . . . . . . . . . 6
ARGUMENT (THE TRIAL COURT ERRED IN DENYING
MOTION FOR DNA TESTING) . . . . . . . . . . . . . 6
PRAYER . . . . . . . . . . . . . . . . . . . . . 14
CERTIFICATE OF SERVICE . . . . . . . . . . . . . 15
CERTIFICATE OF COMPLIANCE . . . . . . . . . . . 15
APPENDIX. . . . . . . . . . . . . . . . . . . . 16
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INDEX OF AUTHORITIES
CASES
Bell v. State,
90 S.W.3d 301 (Tex.Crim.App. 2002) . . . . . 6
Rivera v. State,
89 S.W.3d 55 (Tex.Crim.App.2002). . . . . . . 6
STATUTES
Texas Code of Crim. Proc. Ann.,
Art. 64.03(a)B(c. . . . . . . . . . . . . . 6, 7
STATEMENT REGARDING ORAL ARGUMENT
Oral argument of this case is hereby waived on
behalf of Appellant.
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STATEMENT OF THE CASE
This appeal has resulted from a criminal
prosecution for attempted murder. On May 10, 2004,
Appellant, Allen Calton, pled not guilty to the
second degree offense. (R.R., Vol. 2, p. 3). On
May 19, 2004, after evidence was presented, the jury
found Calton guilty. The Jury found true to both
habitual offender notices. Then the jury set
punishment at confinement for life. (C.R., Vol.6
p.1193).
STATEMENT OF PROCEDURAL HISTORY OF THE CASE
The Court of Appeals rendered its decision and
delivered its written non-published memorandum
opinion on June 25, 2015. The deadline for filing a
Petition for Discretionary Review is July 25, 2015.
QUESTION PRESENTED
Whether the trial judge erred in denying the
Defendant’s motion for DNA testing.
ARGUMENT
APPLICABLE LAW: A bifurcated standard of review is
used to examine whether a trial court’s decision to
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deny a motion for postconviction DNA testing should
be overturned. Rivera v. State, 89 S.W.3d 55,59
(Tex.Crim.App. 2002). The Appeals Court is to
afford almost total deference to the trial court’s
determination of historical facts and the
application of law to those fact issues that turn on
credibility and demeanor. (Id.) The Appeals Court
is to review de novo the ultimate question of
whether the trial court was required to grant a
motion for DNA testing under Chapter 64 of the Texas
Code of Criminal Procedure. (Id.) The legislative
history of Chapter 64 indicates that a convicted
person must demonstrate to the trial court that a
reasonable probability exists that DNA tests would
prove his or her innocence. Bell v. State, 90
S.W.3d 301, 306 (Tex.Crim.App. 2002).
A trial court must order testing only if the
statutory preconditions are met. (Id). Those
conditions include (1) The trial court finds that
the evidence still exists and is in a condition to
make DNA testing possible, that the evidence has
been subjected to a chain of custody sufficient to
establish that it has not been substituted, tampered
with, replaced, or altered in any material respect,
and that the identity was or is an issue in the
case; and (2) the convicted person establishes
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beyond a preponderance of the evidence that he would
not have been convicted if exculpatory results had
been obtained through DNA testing and that the
request for the proposed DNA testing is not made to
unreasonably delay execution of sentence or
administration of justice. (Tex.Code Crim.Proc.Ann.
Art.64.03(a)B(c)).
Analysis
The State has conceded that evidence exists that
can be tested, including a cutting from the front
seat of Defendant’s car, a slipper, and blood
samples from both Defendant and the victim.
(Attachment D of State’s Reply to Pro Se Defendant’s
[Second] Motion for DNA Testing Pursuant to TCCP
64.01). The State has not alleged that there is any
chain of custody problems. The trial judge that
denied the motion for testing is not the same judge
that presided over the trial in 2004. Because of
the fact that the trial judge adopted the
prosecution’s findings of fact and conclusions of
law, it would appear that the trial judge did not
review the voluminous record of the 2004 trial.
Therefore, the only issue in this proceeding should
be reviewed de novo. That issue is, of course,
whether the trial court was required to grant the
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motion for DNA testing under Chapter 64 of the Texas
Code of Criminal Procedure.
A reasonable probability exists that the
Defendant would have been found notguilty at trial
had the evidence been tested using methods that are
available today. The State will argue that the
Defendant did not contest identity at trial, but
rather argued that he did not have the mental
ability to knowingly or intentionally shoot the
victim. This argument fails to take in
consideration that Allen Calton, the Defendant,
represented himself at trial and used the above
trial strategy only after knowing there was no DNA
results on the evidence in question here. Prior to
trial, Allen Calton insisted that there was another
person in the vehicle with him that fired the shots.
Three days after the shooting, Allen Calton signed a
sworn statement for police. The statement was that
on the day in question the victim reached into
Allen’s car with a knife and tried to cut the
passenger, a man named Mike, and that Mike shot the
victim in self-defense. (R.R. Vol. 12, State’s
Exhibit 33). If DNA evidence had matched Mike,
Allen Calton would have most assuredly abandoned the
idea of an automatism defense and continued his
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identity defense that he was using only three days
after the shooting.
State’s Exhibit 33 certainly makes it clear that
identity was at issue. Exhibit 33 was in evidence
and clearly indicated that Mike, and not Allen
Calton, was the shooter. The State’s argument that
identity was not at issue should not be sustained.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Allen Fitzgerald
Calton, Appellant, prays that the case be reversed
or for whatever other relief he has shown himself
entitled.
Respectfully Submitted,
s/Scott Walker
_________________________
By: Scott Walker
Attorney for Appellant
222 W. Exchange Avenue
Fort Worth, Texas 76164
(817) 478-9999
(817) 977-0163 FAX
scott@lawyerwalker.com
State Bar No. 24004972
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CERTIFICATE OF SERVICE
A copy of this petition was served by first
class mail to the Office of Criminal District
Attorney, Tarrant County Courthouse, 401 W. Belknap,
Fort Worth, Texas 76196 and to the State Prosecuting
Attorney at P.O. Box 12405, Austin, Texas 78711 on
the 3rd day of July, 2015.
s/Scott Walker
R. Scott Walker
CERTIFICATE OF COMPLIANCE
I certify that this document complies with the
length requirements as set forth by the Texas Rules
of Appellate Procedure in that this document
contains 1,357 words, and that the document is in 14
point type.
s/Scott Walker
R. Scott Walker
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APPENDIX
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