Calton, Allen F.

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.

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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

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 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

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

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 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