                    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
                               1
   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




                         2
                    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




                           3
                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

                                 5
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

                                    6
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



                                 7
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



                                            8
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




                            9
                    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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