           IN THE COURT OF CRIMINAL APPEALS
                       OF TEXAS
                                   NO. WR-69,291-01



                      EX PARTE CALVIN LETROY HUNTER



             ON APPLICATION FOR WRIT OF HABEAS CORPUS
           FROM CAUSE NO. 968719 IN THE 230 TH DISTRICT COURT
                           HARRIS COUNTY



       Per curiam.


                                      OPINION

       Applicant was convicted of the offense of capital murder in July 2004. Based on

the jury’s answers to the special issues set forth in the Texas Code of Criminal Procedure,

Article 37.071, sections 2(b) and 2(e), the trial judge sentenced appellant to death. The

jury also determined the issue of mental retardation at Applicant’s trial. Dr. George Carl

Denkowski testified as an expert witness for the State on the issue of mental retardation.

       On direct appeal, Applicant argued that the evidence was insufficient to support
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the jury’s determination that he is not mentally retarded. This Court overruled that point

of error and affirmed the judgment of the trial court. Hunter v. State, 243 S.W.3d 664

(Tex. Crim. App. 2007).

       In his initial writ, Applicant alleged that he was denied due process and a fair trial

because Denkowski provided materially incorrect testimony with regard to the mental

retardation issue. This Court denied relief. Ex parte Hunter, No. WR-69,291-01 (Tex.

Crim. App. September 24, 2008)(not designated for publication). Applicant again raised

these issues in his first subsequent writ application, which this Court dismissed as an

abuse of the writ. Ex parte Hunter, No. WR-69,291-02 (Tex. Crim. App. January 27,

2010)(not designated for publication).

       The record reflects that Applicant challenged his conviction in Cause No. 4:10-cv-

00778, styled Calvin Hunter v. Rick Thaler, in the United States District Court for the

Southern District of Texas, Houston Division. On June 6, 2011, the federal district court

entered an order staying its proceedings for Applicant to return to state court to present

his claims.

       In April 2011, Denkowski entered into a Settlement Agreement with the Texas

State Board of Examiners of Psychologists, in which his license was “reprimanded.”

Pursuant to this Settlement Agreement, Denkowski agreed to not accept any engagement

to perform forensic psychological services in the evaluation of subjects for mental

retardation or intellectual disability in criminal proceedings. Applicant raised the
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Denkowski issues a third time in his second subsequent writ application, Ex parte Hunter,

No. WR-69,291-03, which was received in this Court on January 27, 2012. We construed

that application as a suggestion that this Court reconsider on its own initiative its 2008

denial of his initial writ application. On April 25, 2012, we exercised our authority to

reconsider the initial writ application on our own initiative, and we remanded it to allow

the trial court the opportunity to re-evaluate its initial findings, conclusions, and

recommendation in light of the Denkowski Settlement Agreement. On July 17, 2014, the

trial court signed findings of fact and conclusions of law recommending that relief be

granted and that the cause be remanded for a new punishment trial.

       This Court determined that the trial court’s July 17, 2014 recommendation was not

sufficiently supported by the record. On April 22, 2015, this Court remanded the cause to

the trial court for further findings of fact and conclusions of law as to (1) whether

Denkowski gave false testimony at trial with respect to adaptive deficits and (2) whether,

in light of all of the evidence presented at trial and in punishment, there is a reasonable

likelihood that Denkowski’s testimony affected the judgment of the jury. On October 1,

2015, the trial court signed findings of fact and conclusions of law again recommending

that relief be granted and that the cause be remanded for a new punishment trial. The trial

court concluded that Denkowski “provided unreliable and false testimony” which “more

likely than not contributed to the jury’s rejection of [Applicant’s] intellectual disability

claim.”
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       We have reviewed the record and the October 1, 2015 findings of fact and

conclusions of law. Based upon the trial court’s findings and conclusions and our own

review, we grant relief on Applicant’s claim in his initial writ application that Denkowski

provided materially incorrect testimony with regard to the mental retardation issue at the

punishment phase of trial. See Ex parte Chabot, 300 S.W.3d 768 (Tex. Crim. App.

2009); Ex parte Weinstein, 421 S.W.3d 656 (Tex. Crim. App. 2014). We remand this

cause to the trial court for a new punishment hearing.

DELIVERED: March 9, 2016
DO NOT PUBLISH
