Opinion
WR-85 283-01
10-06-2021
EX PARTE JAMES CALVERT, Applicant
Do Not Publish
ON APPLICATION FOR POST-CONVICTION WRIT OF HABEAS CORPUS FROM CAUSE NO. 241-1467-12 IN THE 241ST JUDICIAL DISTRICT COURT SMITH COUNTY
ORDER
PER CURIAM.
This is an application for a writ of habeas corpus filed pursuant to the provisions of Texas Code of Criminal Procedure Article 11.071.
Unless otherwise specified, all references to articles in this order refer to the Texas Code of Criminal Procedure.
In October 2015, a jury convicted Applicant of capital murder for murdering his second ex-wife in the course of committing or attempting to commit burglary or kidnapping. See Tex. Penal Code § 19.03. Jeffery Haas and Jason Cassel were appointed to represent Applicant following his indictment. However, in February 2014, Applicant requested and was granted the right to represent himself. Applicant represented himself through approximately fifty pretrial hearings, voir dire, and roughly three weeks of trial. On September 15, 2015, during the guilt phase, the trial court revoked Applicant's pro se status and reinstated Haas and Cassel as Applicant's counsel. The jury returned a general verdict of guilty and it thereafter answered the punishment phase special issues submitted under Article 37.071 in a manner requiring the trial court to set punishment at death. This Court affirmed Applicant's conviction and sentence on direct appeal. Calvert v. State, No. AP-77, 063 (Tex. Crim. App. Oct. 9, 2019) (not designated for publication).
In his application, Applicant presents seven challenges to the validity of his conviction and sentence. Pursuant to the trial court's order, trial counsel filed responsive affidavits to Applicant's three ineffective assistance allegations detailed below. The trial court thereafter entered findings of fact and conclusions of law and a recommendation that we deny the relief Applicant seeks.
We have reviewed the record regarding Applicant's allegations. In Claim 1, Applicant alleges that trial counsel were constitutionally ineffective at the pretrial stage because they failed to demonstrate that Applicant was incapable of representing himself. In Claim 2, Applicant contends that trial counsel were constitutionally ineffective at the guilt phase because they failed to: adequately prepare and investigate affirmative defenses as standby counsel; demonstrate that the jury was aware of and detrimentally affected by the trial court's use of a stun belt against Applicant; seek the trial judge's recusal; and seek a curative instruction regarding Applicant's demeanor. In Claim 3, Applicant asserts that trial counsel were constitutionally ineffective at the punishment phase because they failed to: "secure and present the services of a mental health expert"; present lay witness testimony and documents; and object to prejudicial statements made by the prosecution. However, Applicant fails to meet his burden under Strickland v. Washington, 466 U.S. 668 (1984), to show by a preponderance of the evidence that his counsel's representation fell below an objective standard of reasonableness and that there was a reasonable probability that the result of the proceedings would have been different but for counsel's deficient performance. See Ex parte Overton, 444 S.W.3d 632, 640 (Tex. Crim. App. 2014) (citing Strickland, 466 U.S. at 688).
Claims 4 through 7 are procedurally barred because they were raised and rejected on direct appeal, or they could have been raised on direct appeal, but were not. See Ex parte Hood, 304 S.W.3d 397, 402 n.21 (Tex. Crim. App. 2010) ("[T]his Court does not re-review claims in a habeas corpus application that have already been raised and rejected on direct appeal."); Ex parte Nelson, 137 S.W.3d 666, 667 (Tex. Crim. App. 2004) ("It is 'well-settled that the writ of habeas corpus should not be used to litigate matters which should have been raised on direct appeal.'").
We adopt the trial court's findings of fact and conclusions of law. Based upon the trial court's findings and conclusions and our own review, we deny habeas relief as to all of Applicant's claims.
IT IS SO ORDERED.