              PD-0822-15                                     PD-0822-15
                                              COURT OF CRIMINAL APPEALS
                                                              AUSTIN, TEXAS
                                              Transmitted 7/2/2015 4:01:31 PM
                                                Accepted 7/2/2015 4:53:15 PM
              NO.     ________________                         ABEL ACOSTA
                                                                       CLERK
 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
                                    Fort Worth, TX 76164
     July 2, 2015                         (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.




                         4
                  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




                                10
APPENDIX




   11
                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-14-00158-CR


ALLEN F. CALTON                                                      APPELLANT

                                       V.

THE STATE OF TEXAS                                                       STATE


                                    ----------

          FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY
                      TRIAL COURT NO. 0843168D

                                    ----------

                        MEMORANDUM OPINION 1

                                    ----------

      Appellant Allen F. Calton appeals from the trial court’s order denying his

second post-conviction motion for forensic DNA testing. We affirm.

      In 2002, Calton drove to Everett Angle’s home, got out of his car to shoot

Angle in the face while Angle was standing in his front yard, and then stood over

Angle to shoot him two more times. Angle survived. Calton drove off and later


      1
       See Tex. R. App. P. 47.4.
engaged in a high-speed chase with police, which ended with Calton driving his

car into a local lake. Calton was indicted with the attempted murder of Angle and

argued at trial that he could not have formed the requisite intent because he was

hypoglycemic that day and, thus, was effectively unconscious. See Tex. Penal

Code Ann. § 6.01 (West 2011). The identity of the shooter was not a disputed

issue in the case. Calton was convicted of attempted murder and sentenced to

life confinement. This court affirmed his conviction. See Calton v. State, No. 2-

04-228-CR, 2005 WL 3082202, at *1–5 (Tex. App.—Fort Worth Nov. 17, 2005,

pet. withdrawn) (mem. op., not designated for publication). 2

      After the court of criminal appeals and a federal district court denied Calton

habeas corpus relief, he filed a motion requesting that material from his car’s

front seat and a slipper found at the crime scene be subject to forensic DNA

testing. See Tex. Code Crim. Proc. Ann. art. 64.01 (West Supp. 2014). This

evidence had been tested in 2002 and 2004, but no results could be produced

because there was insufficient genetic material to produce reliable results. The

trial court denied the motion on May 13, 2008. See id. art. 64.03(a) (West Supp.

      2
        Calton was also convicted of evading arrest, which likewise was affirmed.
See Calton v. State, 132 S.W.3d 29, 31 (Tex. App.—Fort Worth 2004), aff’d,
176 S.W.3d 231, 236 (Tex. Crim. App. 2005). In doing so, we held (and the court
of criminal appeals agreed) that Calton’s prior conviction for evading arrest was
an element of evading arrest alleged as a third-degree felony, which must be
proved at the guilt-innocence phase of trial; thus, we reformed the judgment to
reflect that Calton had been convicted of the state-jail-felony offense of evading
arrest and remanded for a new punishment hearing. Id. at 32–34. We have no
further information regarding Calton’s evading-arrest conviction, but it is not at
issue in his second DNA motion.


                                         2
2014). We affirmed the trial court’s order because “[t]here [was] no showing . . .

that identity was or is an issue in this case” and “there [was] no showing that any

other person committed the offense and was in the car where the material

subjected to DNA testing was found.”           Calton v. State, No. 2-08-208-CR,

2009 WL 976004, at *4 (Tex. App.—Fort Worth Apr. 9, 2009, pet. ref’d) (mem.

op., not designated for publication).

      On August 13, 2013, Calton filed a second motion for forensic DNA testing

and asked that the car-seat material and slipper again be tested against Calton’s

and Angle’s blood samples “under the new and more advanced DNA lab testing

technology and capabilities.” On September 16, 2013, Calton filed a notice of

appeal from the anticipated denial of his second DNA motion.                   On

February 13, 2014, we dismissed the attempted appeal for want of jurisdiction

because the motion had not been finally decided and noted that although

Calton’s motion had been filed almost five months earlier, the trial court had

taken no action on the motion.          See Calton v. State, No. 02-13-00460-CR,

2014 WL 584940, at *1 (Tex. App.—Fort Worth Feb. 13, 2014, no pet.) (mem.

op., not designated for publication). The State was provided with a copy of the

motion the next day—February 14, 2014. See Tex. Code Crim. Proc. Ann. art.

64.02 (West Supp. 2014). The record reflects the motion was only sent to the

trial-court clerk and does not explain why there was a delay in providing the State

a copy of Calton’s motion until six months after it was filed. In any event, the

State responded to Calton’s motion that although there was evidence that could


                                           3
be tested, Calton had failed to show that newer testing techniques had a

reasonable likelihood of producing more accurate and probative results, identity

was or is an issue, and DNA testing would exonerate him.

      On March 24, 2014, the trial court denied Calton’s second motion for

forensic DNA testing and entered findings and conclusions.        The trial court

concluded that Calton’s motion was without merit because Calton did not allege

that identity was or is at issue, show that newer testing would be reasonably

likely to produce more accurate and probative results, or prove by a

preponderance of the evidence that he would not have been convicted of

attempted murder if the DNA test results were exculpatory.          See id. arts.

64.01(b)(2), 64.03(a).   Calton now appeals the trial court’s denial. See id. art.

64.05 (West 2006). Because an evidentiary hearing was not held, we review the

trial court’s ruling de novo. See Smith v. State, 165 S.W.3d 361, 363 (Tex. Crim.

App. 2005); Lomax v. State, No. 14-07-00934-CR, 2008 WL 5085653, at *1 (Tex.

App.—Houston [14th Dist.] Nov. 25, 2008, pet. ref’d) (mem. op., not designated

for publication).

      A movant for DNA testing must do more than simply move for such relief;

he bears the burden to satisfy the requirements of the statute allowing such

testing and must provide facts in support of the motion. See Tex. Code Crim.

Proc. Ann. art. 64.01(a-1); Wilson v. State, 185 S.W.3d 481, 484 (Tex. Crim.

App. 2006) (op. on reh’g); Dinkins v. State, 84 S.W.3d 639, 642 (Tex. Crim. App.

2002). Because the evidence at issue here previously was subjected to DNA


                                        4
testing, Calton was required to allege facts to support his contention that newer

testing techniques are available and that it is reasonably likely that such

techniques would yield more accurate and probative results. See Tex. Code

Crim. Proc. Ann. art. 64.01(b)(2); Dinkins, 84 S.W.3d at 642. In his supporting

declaration,   Calton   stated   that   “DNA   testing   technology   has   evolved

tremendously over the past few years” and that “several [new] methods” would

“clearly trump[] the testing capabilities that were available when testing was done

. . . in 2002.” These bare allegations are insufficient to establish the need for

further testing. 3 See Dukes v. State, No. 04-12-00404-CR, 2013 WL 1760618, at

*2 (Tex. App.—San Antonio Apr. 24, 2013, no pet.) (mem. op., not designated for

publication); Luna v. State, No. 2-03-012-CR, 2003 WL 21940907, at *2 (Tex.

App.—Fort Worth Aug. 14, 2003, pet. ref’d) (mem. op., not designated for

publication); cf. Routier v. State, 273 S.W.3d 241, 250–51 (Tex. Crim. App. 2008)

(holding DNA retest warranted based on expert evidence defendant produced in

support of article 64.01 motion showing that retest with newer techniques likely

would yield result).

      Even if Calton’s motion met the requirements of article 64.01, he still bore

the burden to show that identity was or is at issue in the case. See Tex. Code

      3
        In his appellate brief, Calton states that he has shown that “Orchid
Cellmark in Dallas, Texas has more advanced testing procedure[s] in place that
will, in all probability, yield conclusive results with the miniscule amount of
available evidence.” Calton provides no record support for this statement;
indeed, this assertion was not raised to the trial court in Calton’s second motion
for forensic DNA testing.


                                         5
Crim. Proc. Ann. art. 64.03(a)(1)(B); Wilson, 185 S.W.3d at 484. As we and the

trial court previously concluded, Calton’s identity as Angle’s attacker was never in

dispute at trial, and Calton did not raise identity in his second DNA motion or

supporting declaration. 4    See Calton, 2009 WL 976004, at *4.              Article

64.03(a)(2)(A) requires that a “convicted person establish[] by a preponderance

of the evidence that . . . [he] would not have been convicted if exculpatory results

had been obtained through DNA testing.”         Tex. Code Crim. Proc. Ann. art.

64.03(a)(2)(A); see Holberg v. State, 425 S.W.3d 282, 286–87 (Tex. Crim. App.

2014). Here, the record supports the conclusion that Calton failed to satisfy his

burden to show that it was more likely than not that exculpatory results would

have altered the outcome of his trial. See Holberg, 425 S.W.3d at 288. Thus,

the trial court correctly concluded that further DNA testing was not warranted

because identity was not at issue and because Calton failed to show by a

preponderance that that he would not have been convicted if DNA testing

provided exculpatory evidence.        See Tex. Code Crim. Proc. Ann. art.

64.03(a)(1)(B), (2)(A); Birdwell v. State, 276 S.W.3d 642, 646 (Tex. App.—Waco

2008, pet. ref’d).




      4
       Calton points to his sworn statement given to police after his arrest that
his passenger, “Mike,” shot Angle in self-defense. Calton provides no citation to
the record before this court for this argument.


                                         6
      We overrule Calton’s issue and affirm the trial court’s order.


                                                   PER CURIAM

PANEL: GABRIEL, MEIER, and SUDDERTH, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: June 25, 2015




                                         7
                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-14-00158-CR

Allen F. Calton                          §    From the 213th District Court

                                         §    of Tarrant County (0843168D)

v.                                       §    June 25, 2015

                                         §    Per Curiam

The State of Texas                       §    (nfp)

                                  JUDGMENT

      This court has considered the record on appeal in this case and holds that

there was no error in the trial court’s order. It is ordered that the trial court’s

order is affirmed.


                                    SECOND DISTRICT COURT OF APPEALS

                                    PER CURIAM
