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Case No. Ap-77,063 in the Court of Criminal Appeals of the State of Texas James Calvert, Appellant Vs. the State of Texas, Appel

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Case No. Ap-77,063 in the Court of Criminal Appeals of the State of Texas James Calvert, Appellant Vs. the State of Texas, Appel CASE NO. AP-77,063 IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF TEXAS JAMES CALVERT, APPELLANT VS. THE STATE OF TEXAS, APPELLEE ON DIRECT APPEAL FROM THE 241ST JUDICIAL DISTRICT COURT SMITH COUNTY, TEXAS BRIEF OF APPELLANT DOUGLAS H. PARKS State Bar No. 15520000 321 Calm Water Lane Holly Lake Ranch, Texas 75755 (214) 521-2670 (903) 769-3465 (fax) DAVID W. DEBRUIN Admitted Pro Hac Vice Jenner & Block, LLP 1099 New York Avenue, N.W. Washington, D.C. 20001 (202) 639-6015 Attorneys for Appellant James Calvert ORAL ARGUMENT REQUESTED IDENTITIES OF PARTIES AND COUNSEL James Calvert, Appellant Jeffrey L. Haas, Appellant’s trial counsel Jason Doyle Cassel, Appellant’s trial counsel D. Matt Bingham, III, District Attorney April Sikes, First Assistant District Attorney i TABLE OF CONTENTS IDENTITIES OF PARTIES AND COUNSEL .......................................................... i INDEX OF AUTHORITIES ..................................................................................... xi STATEMENT OF THE CASE .................................................................................. 1 REQUEST FOR ORAL ARGUMENT ..................................................................... 1 INTRODUCTION TO ISSUES PRESENTED ......................................................... 1 ISSUES PRESENTED ............................................................................................... 4 STATEMENT OF FACTS ........................................................................................ 7 A. The Incident ........................................................................................... 7 B. Pretrial Proceedings ............................................................................... 9 C. Trial Proceedings ................................................................................. 21 1. Guilt Phase ................................................................................ 21 2. Penalty Phase ............................................................................ 32 SUMMARY OF ARGUMENT .......................................................................... 42 ARGUMENT ...................................................................................................... 44 ELECTRIC SHOCK INCIDENT ISSUES ........................................................ 45 POINT OF ERROR NO. 1: THE TRIAL COURT VIOLATED CALVERT’S RIGHTS TO SUBSTANTIVE AND PROCEDURAL DUE PROCESS BY ALLOWING HIM TO BE SUBJECTED TO A 50,000 VOLT ELECTRIC SHOCK DURING TRIAL FOR CONDUCT THAT DID NOT WARRANT SUCH TREATMENT, PARTICULARLY WHEN THE COURT HAD FAR LESS DRASTIC ALTERNATIVES. .......... 45 A. Facts ..................................................................................................... 45 ii B. Given That Calvert Was Not Shocked As A Security Measure And The Court Had Less Drastic Means To Protect Court Decorum, The Electric Shock Incident Violated Calvert’s Substantive And Procedural Due Process Rights. .............................. 49 POINT OF ERROR NO. 2: THE TRIAL COURT ERRED BY REFUSING TO GRANT A MISTRIAL AFTER THE ELECTRIC SHOCK INCIDENT. .......................................................................................... 52 POINT OF ERROR NO. 3: THE TRIAL COURT ERRED IN REINSERTING HAAS AND CASSEL AS COUNSEL, AFTER CALVERT HAD ACCUSED THEM OF UNETHICAL CONDUCT AND ATTACKED THEIR PERFORMANCE. ................................................. 57 PRO SE / RIGHT TO COUNSEL ISSUES ........................................................ 58 POINT OF ERROR NO. 4: THIS COURT SHOULD LIMIT THE FARETTA RULE AND HOLD THAT A DEFENDANT IN A CAPITAL CASE IN WHICH THE STATE IS SEEKING DEATH CANNOT WAIVE HIS CONSTITUTIONAL RIGHT TO COUNSEL. ............................ 58 POINT OF ERROR NO. 5: THE TRIAL COURT ERRED IN FINDING THAT, DESPITE HIS MENTAL HEALTH ISSUES, CALVERT WAS COMPETENT TO WAIVE HIS RIGHT TO COUNSEL AND REPRESENT HIMSELF AT TRIAL IN THIS DEATH PENALTY CASE .................................................................................................................. 61 POINT OF ERROR NO. 6: THE TRIAL COURT ERRED IN FAILING TO APPOINT INDEPENDENT COUNSEL ON THE QUESTION WHETHER CALVERT WAS COMPETENT TO REPRESENT HIMSELF AT TRIAL IN A DEATH PENALTY CASE. ................................. 61 A. Background and Legal Standard. ........................................................ 62 B. Facts. .................................................................................................... 67 C. The Trial Court Erred In Finding That, Despite His Mental Health Issues, Calvert Was Competent To Waive Counsel And Represent Himself In A Death Penalty Trial, And In Failing To Appoint Independent Counsel With Regard To The Issue Of Competency To Waive Counsel. ......................................................... 72 iii POINT OF ERROR NO. 7: THE TRIAL COURT ERRED IN FINDING A VOLUNTARY WAIVER OF CALVERT’S RIGHT TO COUNSEL WITHOUT ADEQUATELY ADDRESSING CALVERT’S COMPLAINTS WITH HIS APPOINTED COUNSEL OR CONSIDERING OTHER ALTERNATIVES. ................................................... 74 A. Background Legal Principles. ............................................................. 74 B. The Record Is Clear That Calvert Did Not Wish To Waive His Right To Counsel And Had Concerns With His Appointed Counsel. ............................................................................................... 77 C. The Trial Court Failed To Adequately Address Calvert’s Concerns With Appointed Counsel, Failed To Explore Other Alternatives, And Erred In Finding A Voluntary Waiver In These Circumstances. .................................................................................... 82 POINT OF ERROR NO. 8: EVEN IF A VALID WAIVER OF COUNSEL ORIGINALLY WAS FOUND, PROCEEDINGS BEFORE TRIAL SHOWED THAT, AS A RESULT OF HIS MENTAL HEALTH ISSUES, CALVERT COULD NOT ADEQUATELY REPRESENT HIMSELF IN A CAPITAL TRIAL. .......................................................................................... 86 POINT OF ERROR NO. 9: TO THE EXTENT CALVERT HAD A RIGHT TO PROCEED PRO SE, BOTH THE STATE AND THE TRIAL COURT IMPROPERLY IMPAIRED AND INTERFERED WITH THAT RIGHT BY MAKING INAPPROPRIATE COMMENTS REGARDING CALVERT’S PERFORMANCE AS COUNSEL DURING TRIAL, AND BY UNDERMINING HIS EFFORTS TO REPRESENT HIMSELF. .............. 89 POINT OF ERROR NO. 10: TO THE EXTENT CALVERT HAD A RIGHT TO PROCEED PRO SE, THE TRIAL COURT IMPROPERLY TERMINATED THAT RIGHT FOR CONDUCT THAT DID NOT POSE ANY SECURITY RISK AND HAD NOT OBSTRUCTED TRIAL PROCEEDINGS ................................................................................................. 99 EXTREME PROSECUTORIAL MISCONDUCT ISSUES ............................ 102 POINT OF ERROR NO. 11: THE PROSECUTION ENGAGED IN EGREGIOUS MISCONDUCT DURING CLOSING ARGUMENT IN THE GUILT STAGE OF THE TRIAL. ........................................................... 102 iv POINT OF ERROR NO. 12: THE PROSECUTION ENGAGED IN EGREGIOUS MISCONDUCT DURING CLOSING ARGUMENT IN THE PENALTY STAGE OF THE TRIAL. ..................................................... 102 A. The Prosecution’s Closing Argument In The Guilt/Innocence Portion Of The Trial Contained Numerous Instances of Egregious Misconduct. ...................................................................... 104 1. The prosecutor instructed the jury to invoke the forbidden “golden rule” and to identify with the victims of the crime. ....................................................................................... 104 2. The prosecutor urged the jury to convict Calvert based on a portrayal of the murder that had no basis in the evidence. ................................................................................. 109 3. The prosecutor heaped personal abuse upon Calvert, again transgressing boundaries this Court has repeatedly set. ......... 111 4. The prosecutor improperly commented on Calvert’s nontestimonial behavior, both apart from and with reference to the exercise of his Sixth Amendment right to self-representation. .................................................................. 113 5. The prosecutor committed misconduct by making extreme and excessive appeals to passion and sympathy. .................... 116 6. The prosecution committed misconduct by invoking personal experience and authority to assess Calvert’s guilt. ........................................................................................ 118 B. The Prosecution Engaged In Repeated, Similar, Egregious Misconduct During the Penalty Phase Closing Arguments. ............. 121 1. The prosecutor impermissibly commented on Calvert’s failure to testify. ...................................................................... 122 2. The prosecution again violated Texas’s “golden rule” by instructing the jury to identify with the victim and her children and by inflaming the passions and prejudices of the jury. ................................................................................... 124 v 3. The prosecution again committed error by referring to Calvert as a “coward,” a “monster,” and the personification of “evil.” ......................................................... 126 4. The prosecution again improperly commented on Calvert’s non-testimonial behavior. ........................................ 128 POINT OF ERROR NO. 13: THE TRIAL COURT ERRED BY ALLOWING IRRELEVANT AND PREJUDICIAL TESTIMONY AND QUESTIONING THROUGHOUT THE TRIAL THAT WAS CALCULATED TO INFLAME THE JURY AND DEPRIVE THE DEFENDANT OF A FAIR TRIAL ................................................................
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