Opinion
NO. WR-87,967-03
10-30-2019
EX PARTE WARREN TYRONE CALHOUN, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. W16-54594-N(A) IN THE 195TH DISTRICT COURT FROM DALLAS COUNTY
Per curiam. ORDER
Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the clerk of the trial court transmitted to this Court this application for a writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of aggravated robbery and sentenced to eighteen years' imprisonment. The Fifth Court of Appeals affirmed his conviction. Calhoun v. State, No. 05-17-00026-CR (Tex. App. — Dallas, January 2, 2018) (not designated for publication).
On September 12, 2018, this Court remanded this matter to the trial court to obtain affidavits and findings of fact addressing Applicant's claim that his trial counsel rendered ineffective assistance because trial counsel failed to object to or seek suppression of statements Applicant made to police without having been given Miranda warnings. The State in its answer before remand asserted that one of the statements was made spontaneously and not in response to questioning.
On September 27, 2019, this Court received the supplemental record after remand from Dallas County. The supplemental record includes various documents indicating that after the trial court appointed a writ master to resolve the issues in this case, Applicant was erroneously advised that the writ master had been appointed to represent him in this habeas matter. The supplemental record also contains a request for an extension of time from the trial court, which was never received or ruled upon by this Court. There is also at least one document in the supplemental record indicating that habeas counsel was eventually appointed to represent Applicant in this habeas matter, and there are multiple references to a live habeas hearing apparently conducted on February 14, 2019. There is no transcript from that habeas hearing in the supplemental record.
The trial court has entered supplemental findings of fact and conclusions of law, but they make no reference to the habeas hearing or to any other fact-finding performed in response to this Court's remand order. Rather, the trial court finds, as the State argued in its pre-remand answer, that Applicant's first statement was not made in response to questioning, but was "a spontaneous and volunteered declaration by the defendant." This finding is arguably inconsistent with the finding that immediately precedes it, that Applicant was "taken to the ground" and "asked why he was running and where the gun was" and that "[i]n response," Applicant stated that he "did not mean to rob him." The trial court's supplemental findings of fact and conclusions of law are not supported by the record. We believe that the record would benefit from clarification.
Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 668 (1984); Ex parte Patterson, 993 S.W.2d 114, 115 (Tex. Crim. App. 1999). In these circumstances, additional facts are needed. As we held in Ex parte Rodriguez, 334 S.W.2d 294, 294 (Tex. Crim. App. 1960), the trial court is the appropriate forum for findings of fact.
The trial court shall first supplement the habeas record with copies of any order appointing counsel to represent Applicant on habeas corpus, with any documents or pleadings filed by habeas counsel and the State after the initial remand order, with any affidavits filed by Applicant's trial attorney if such affidavits were submitted, and with a full transcript of the habeas hearing conducted on February 14, 2019.
The trial court shall make findings of fact and conclusions of law as to whether the performance of Applicant's trial counsel was deficient and, if so, whether counsel's deficient performance prejudiced Applicant. The trial court shall also make any other findings of fact and conclusions of law that it deems relevant and appropriate to the disposition of Applicant's claim for habeas corpus relief.
This application will be held in abeyance until the trial court has supplemented the record and resolved the fact issues. The issues shall be resolved within 10 days of this order. A supplemental transcript containing all affidavits and interrogatories or the transcription of the court reporter's notes from any hearing or deposition, along with the trial court's supplemental findings of fact and conclusions of law, shall be forwarded to this Court within 30 days of the date of this order. Any extensions of time must be requested by the trial court and shall be obtained from this Court. Filed: October 30, 2019
Do not publish