Appeal for BISD's Calvin Walker

7/26/2019 Appeal for BISD's Calvin Walker

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PD NO. 0358-16PD NO. 0359-16

PD NO. 0360-16PD NO. 0361-16

PD NO. 0362-16

PD NO. 0363-16

IN THE COURT OF CRIMINAL APPEALSAUSTIN, TEXAS

_______________________________________________________________________

CALVIN WALKER,

PETITIONER

VS.

THE STATE OF TEXAS,

RESPONDENT________________________________________________________________________

On appeal from the Ninth Court of Appeals, Beaumont, Texas

Appeal Nos. 09-15-00037-CR, 09-15-00038-CR, 09-15-00039-CR,

09-15-00040-CR, 09-15-00041-CR and 09-15-00042-CR

and the Criminal District Court for Jefferson County, Texas

Trial Court Nos. 14-19965, 14-19966, 14-19967,

14-19968, 14-19969 and 14-19970

________________________________________________________________________

CALVIN WALKERS PETITION FOR DISCRETIONARY REVIEW

________________________________________________________________________

DEGUERIN,DICKSON,HENNESSY &WARD

Dick DeGuerin

State Bar No. 05638000

Matt Hennessy


1018 Preston, 7thFloor

Houston, Texas 77002

(713) 223-5959 Telephone

(713) 223-9231 Facsimile

May 8, 2016 Attorneys for Petitioner

ORAL ARGUMENT REQUESTED

PD-0358_03COURT OF CRIMINAL AP

AUSTIN,

Transmitted 5/9/2016 2:02

Accepted 5/9/2016 2:25

ABEL A

May 9, 2016


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TABLE OF CONTENTS

Table of Contents.. ii

Table of Authorities... iii

Identity of Parties and Counsel.. v

Statement Regarding Oral Argument. 1

Statement of the Case. 1

Statement of Procedural History 3

Factual Background 3

Grounds for Review 7

Argument 7

Conclusion.. 15

Certificate of Service.. 18

Certificate of Compliance 18

Appendix A


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TABLE OF AUTHORITIES

Cases Page

Alabama Great So. R.R. Co. v. Louisville and Nashville R.R.,

224 F.2d 1 (5thCir. 1955) 14

Bartkus v. Illinois, 359 U.S. 121, 124 (1959).. 12, 8

Click v. State,39 S.W.2d 39, 41 (1931). 10

Croley v. Matson Navigation Co.,434 F.2d 73, 77 (5thCir. 1970) 14

Ex parte Gary, 895 S.W.2d 465, 468 (Tex. App.Amarillo 1995,

pet. refd). 12

Ex parte Hargett,819 S.W.2d 866, 867 (Tex. Crim. App. 1991).. 10

Ex parte Walker, __ S.W.3d __, 2016 WL 908374 at *1 (Tex.

App.Beaumont March 9, 2016, pet. pending). 1, 8, 10, 11

Greenville v. State, 798 S.W.2d 361, 362 (Tex. App.Beaumont

1990, no pet.)... 11, 12

In re Piper, 105 S.W.3d 107, 110 (Tex. App.Waco 2003, orig.

proceeding) 10, 11, 12

Lipschutz v. Gordon Jewelry Corp., 373 F.Supp. 375, 385 (S.D.Tex. 1975). 14

Marsden v. Patane,380 F.2d 489 (5thCir. 1967) 14

NLRB v. Smith Industries,403 F.2d 889, 895 (5thCir. 1968). 14

RileyStabler Constr. Co. v. Westinghouse Electric Co.,396 F.2d

274, 277 (5thCir. 1968) 14

Rinaldi v. United States, 434 U.S. 22, 26-29 (1977).. 12

Stephens v. State,806 S.W.2d 812, 814 (Tex. Crim. App. 1990) 8

Stewart v. Credit Bureau, Inc.,734 F.2d 47, 54 (D.C. Cir. 1984). 14

United States v. Belcher, 762 F.Supp. 666, 671 (W.D. Va. 1991). 9, 13

United States v. Moore, 958 F.2d 646, 650 (5thCir. 1992). 12


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United States v. Wheeler,435 U.S. 313, 320 (1978).. 13

Statutes

Tex. Code Crim. Proc. Ann., art. 11.15... 7, 8, 10

Tex. Const., art. V, 8. 10

Tex. Govt Code 24.011 10

Tex. Code Crim. Proc. Ann., art. 11.05 5, 10, 11, 12

Tex. Const., art. I, 12. 10


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IDENTITY OF PARTIES AND COUNSEL

The undersigned counsel of record for Appellant certifies that to his knowledge only

the parties listed below have an interest in the outcome of this case. They are as follows:

Honorable John Stevens

Judge, Criminal District Court

1085 Pearl Street

Beaumont, Texas 77701

Calvin Walker, Petitioner

Dick DeGuerin


Matt HennessyState Bar No. 00787677

DeGuerin, Dickson, Hennessy & Ward



(713) 223-5959

Attorneys for Petitioner

The State of Texas, Respondent

Wayln G. Thompson


Jefferson County Assistant District Attorney

1085 Pearl St.


(409) 835-8550

Attorney for Respondent

Lisa McMinn

State Prosecuting Attorney

P. O. Box 13046

Austin, Texas 78711


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Statement Regarding Oral Argument

This petition presents important issues involving pretrial habeas process. The first,

threshold issue questions whether a court of appeals has jurisdictional authority to decide

whether a district court should have issued a writ a habeas corpus. The second issue

concerns what burden must be met to trigger the issuance of a writ of habeas corpus. The

third concerns what burden must be met to require a hearing on the merits of a habeas

application after the proper issuance of a writ. Oral argument will assist the Court in

determining the matter.

Statement of the Case

This is a consolidated appeal of the district courts denial of Calvin Walkers six

pretrial applications for habeas relief, all of which raised the same double jeopardy

challenges.

The State obtained six indictments against Walker based on the same conduct that

had been adjudicated previously in federal court. Those previously adjudicated federal

charges were resolved with a plea agreement that, in return for a guilty plea on one count,

provided for the dismissal of all remaining counts and a guarantee that no additional

charges would be filed based on the same conduct or any other conduct that was known to

the authorities at the time. Ex parte Walker, __ S.W.3d __, 2016 WL 908374 at *1 (Tex.

App.Beaumont March 9, 2016, pet. pending) (Appendix A to this petition).

Due to the unusual circumstances that are present here, prosecution of the six state

cases should be barred by double jeopardy based on the federal plea agreement. The district

court was presented with materials that warranted further examination in a hearing on the


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merits, but the district court summarily denied Walkers applicationswithout prior notice

to the parties.

The district court never issued a writ on any of Walkers applications and there is,

therefore, some ambiguity as to the meaning of the courts summary denial. See id. at *5.

The district courts order seems to address the substantive relief sought, but it could also

be interpreted as refusing to issue the writs because no writs were ever issued.1 On appeal,

the court of appeals held that the district court could have refused even to issue the writs,

and affirmed the district courts orderon that sole basis. Id. at *5, *9.

By this petition, Walker seeks an initial determination of whether the court of

appeals had jurisdiction to determine that the district court could have properly refused to

issue the writs sought by Walkers applications. If the court of appeals lacked the

jurisdiction to so decide, the cases should be remanded to the court of appeals to address

the issues actually raised by the parties. If the court of appeals appropriately exercised its

jurisdiction, this Court should review the court of appeals holding that Walker failed to

meet his burden to warrant the issuance of writs of habeas corpus by the district court. If

that burden was in fact met, the cases should be remanded to the court of appeals to address

issues raised in the parties briefs.

1The final paragraph of the district courts order states:Based on the foregoing findings, the Court concludes that the dual sovereignty

doctrine has not been forfeited by the state in the six pending indictments at issue.

Therefore, applicants double-jeopardy claim for relief submitted in applicants sixpretrial applications is without merit and is, in all things, denied.

Id. at *3. On appeal, both the State and the defense assumed that the district court ruled on the

merits, but the court of appeals reasoning in affirming the district court tends to call that

assumption into question.


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Walker alternatively seeks remand to the district court so that the district court can

clarify whether its denial of relief was a refusal to issue the writs, or a denial of relief on

the merits. If it was the former, Walker seeks remand for the issuance of a writ by the

district court or another court of competent jurisdiction followed by an evidentiary hearing.

If it was the latter, Walker seeks remand for an evidentiary hearing.

Statement of Procedural History

The State filed the six cases against Walker on July 29, 2014. The pretrial

applications for habeas relief were filed on November 14, 2014. The district court never

issued writs on the applications and it denied relief on December 18, 2014. Walker

appealed the denial to the Ninth Judicial District Court of Appeals in Beaumont. The court

of appeals issued its opinion affirming the district courts decisionon March 9, 2016. No

motion for rehearing was filed. Pursuant to an extension granted by this Court, this petition

for discretionary review is due on May 8, 2016.

Factual Background

The United States Attorneys Office for the Eastern District of Texas (USAO) filed

its case against Walker in federal court on May 4, 2011. Id. at *1. The thirty-seven count

indictment alleged that Walker defrauded the Beaumont Independent School District

(BISD) by billing for materials and services provided by his electrical contracting business

at various district-owned facilities. Id. The case drew considerable media attention in

Beaumont and the surrounding area from the time it was filed until its ultimate resolution.

It remains a topic of public interest.


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The federal trial ended with a mistrial in December 2011 after the jury could not

reach a verdict. Id. Shortly before a second trial was to begin, Walker and the authorities

reached an agreement to finally resolve all pending charges and investigations. Id. Walker

agreed to plead guilty to a charge of failing to pay income tax. Id. In return, the USAO

agreed not to prosecute Walker for any offenses of which it has knowledge, including any

additional tax or non-tax related charges based upon the conduct underlying and related to

[Walkers] plea of guilty. See id.2 Consistent with that agreement, the USAO dismissed

all other charges against Walker in the federal indictment on December 12, 2012, and no

federal charges have been filed since. Id.

The Jefferson County District Attorneys Office filed six felony cases against

Walker on July 29, 2014. Id. The charges are based on the exact same conduct resolved

by the federal plea agreement. Id. At the time that the state cases were filed, Cory

Crenshaw was the district attorney. He was appointed to that position in January 2014. Id.

at *2. Prior to his appointment, Crenshaw served as a federal prosecutor in the same office

that prosecuted Walkers federal case. Id.

Many individuals within law enforcement in the Beaumont area were unhappy that

Walkers trial did not end with his conviction, and they were dissatisfied with the way the

charges were resolved despite the fact that it was an agreed resolution. In a press

conference on January 9, 2014, United States Attorney John Malcolm Bales expressed

these lingering sentiments. Id. The press conference was called to address the recent

2The plea agreement remains under seal in federal court.


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federal indictment of two BISD administrators, but the discussion eventually focused on

Walker. Id. TheExaminerarticle that followed the press conference reported:

Bales addressed a topic that has obviously bothered him since his ill-fated

prosecution of electrician Calvin Walker. One of the things we haveexperienced here was quite surprising to me, began Bales. I lived in

Beaumont for six years in the late 80s and early 90s; I love Beaumont; two

of my children were born here. But I was not prepared for the polarization.

The last time we made a charge of something I thought was fraudulent at

BISDand I still dowas the sensitivities in this community that are

racially charged. Im not used to being accused of being on anybodys side.

The only side were on is law and orderand justice.

Id. Crenshaw was still a federal prosecutor under Bales at the time of these remarks. Id.

Less than three weeks later, Crenshaw was sworn in as the Jefferson County District

Attorney. Id.

On March 5, 2014, Crenshaw and his former boss, announced the formation of a

joint task force. Id. The announcement from Bales USAO, stated: The mission of the

task force will be to investigate and prosecute major crimesmore specifically, violent

crime and crimes related to the abuse of public trust. Id. To further solidify the joint

mission, Crenshaw was sworn in as a Special Assistant United States Attorney of the

USAO on May 12, 2014, to assist with Joint Task Force Cases, thus pooling state and

federal prosecutorial authority in a single office. See id. The letter authorizing Crenshaws

appointment expressly states that he shall report to and act under the direction of Bales

while serving as district attorney at the same time. Id.

Crenshaws office filed the state cases against Walker on July 29, 2014. Id.at *1.

Walker filed his habeas applications on November 14, 2014. The court never issued the

writs sought by the applications as required by Article 11.05 of the Texas Code of Criminal


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Procedure. The district court originally set the applications for a hearing to be held on

December 15, 2014, but then moved the hearing date up to November 24, 2014. See id. at

*3. In anticipation of that hearing, the defense subpoenaed Crenshaw and Bales to testify.

Id. The defense also subpoenaed records from the Jefferson County District Attorneys

Officerecords showing communications between the district attorneys office and the

USAO regarding Walker and the decision to prosecute him in state court. Id. The state

filed a motion to quash the subpoena for records, and the defense filed a response. Id.

On November 21, 2014, without notice or explanation, the district court cancelled

the hearing scheduled for November 24, 2014. Id. The district court had not yet ruled on

the States motion to quash the defenses subpoena for records of communications between

the state and federal authorities at the time. Thereafter, the defense repeatedly called the

district courts coordinator seeking to re-schedule a hearing on the habeas applications.

The district court summarily denied Walkers applications in a written order on December

18, 2014. Id. The defense received the order by fax. The district court never gave notice

that it intended to take action on Walkers applications without a hearing.

Walker appealed the district courts summary denial, and the Beaumont court of

appeals affirmed. The court of appeals stated:

In this case, the record contains no order or other documentation showing

that the trial court formally issued the writs of habeas corpus requested in

Walkers habeas petitions. Instead, it appears from the record that the trial

court originally set the petitions for a hearing. The trial court later cancelled

that hearing based on its determination that it could render a proper ruling

without further factual development of applicants claim. It then issued its

December 18, 2014 order, in which the trial court addressed the merits of the

allegations set forth in Walkers habeas petitions and, finding them to be

without merit, denied habeas relief. Although the trial courts order indicates


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that it entertained the merits of Walkers habeas claims and ultimately denied

the relief requested, we conclude, for the reasons set forth below, that it [is]

manifest from Walkers petitions, together with the documents attached to

those petitions, that he is entitled to no relief whatever. SeeTex. Code

Crim. Proc. Ann. art. 11.15. Therefore, the trial court, upon examining the

petitions, would have been fully justified under article 11.15 in refusing toissue the writs of habeas corpus and, thus, never reaching the need to conduct

a formal evidentiary hearing on the merits of Walkers claims. Seeid.

Id.at *5.

Grounds for Review

1. Whether the court of appeals had the authority to decide that the district court

was right to deny an evidentiary hearing on Walkers habeas applications because the

district court could have refused to issue writs in the first place. In other words, did the

court of appeals improperly exercise original jurisdiction in a habeas matter by deciding

that the district court could have correctly refused to issue the sought-after writs?

2. Whether writs of habeas corpus should have been issued based on the

allegations in Walkers applications.

3. Whether the district court should have granted a hearing to permit Walker to

develop the factual basis for the habeas relief sought by his applications.

Argument

I. Reason for Review.

The district courts reasoningfor summarily denying relief was unjustly circular.

The district court denied relief because there was insufficient evidence to support Walkers

claims, and the evidence was insufficient because there was no hearing, and there was no

hearing because relief was denied. The summary denial was, according to the district


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courts logic,self-justifying. The district courts decision also had an ironic twist in that

Walker had validly-served, outstanding subpoenas for testimony and records when relief

was summarily denied. The subpoenas that could have produced the evidence to show that

relief was warranted were rendered impotent by the denial.

The court of appeals decisionis also flawed, but for different reasons. The court

stated:

Because we conclude that the facts alleged in Walkers habeas petitions, even

if proven true, do not show that the States prosecution of Walker is a sham

and cover for a second federal prosecution, we conclude that it [is]

manifest from the face of Walkers habeas petitions and the documentsattached thereto that Walker is entitled to no relief whatever. Tex. Code

Crim. Proc., art. 11.15.

Ex parte Walker, 2016 WL 908374 at *9. However, even a cursory examination of

Walkers applications show that the courts conclusion is incorrect. The second paragraphs

of the applications expressly state:

A state is not entitled to invoke the dual sovereignty doctrine when itsprosecution [is] merely a tool of the federal authorities.3 Habeas relief is

warranted because the state and federal authorities have operated as a single

sovereign in their mutual pursuit of Walker.4

CR. (Cause No. 14-19965) at 4-5.5

The final paragraphs state:

The two sovereigns at issue here are substantially more intertwined, and the

procedural history presents a more compelling case for dismissal than in

Belcher. When it comes to Joint Task Force casesand that is exactly what

3Bartkus v. Illinois, 359 U.S. 121, 124 (1959)4Stephens v. State,806 S.W.2d 812, 814 (Tex. Crim. App. 1990) (the pretrial writ of habeascorpus is an appropriate remedy to review a double jeopardy claim).5All six of Walkers applications are identical and the district court entered a single order

addressing all applications, so for simplicity, the record cite for but one of the applications is

used for reference.


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the state cases areCrenshaw cannot be viewed as a state or a federal

prosecutor. He is both. Crenshaw draws his powers from two sovereigns

and he is simultaneously bound by the laws of both. He possesses the power

to proceed in both state and federal courts. Any case that Crenshaw brought

against Walker in federal court would be barred. But this inability to bring a

viable federal case does not somehow empower Crenshaw to file state casesbased on the same facts as the federal case. By holding the unified authority

of a state and federal prosecutor, Crenshaw and his office cannot resort to the

dual sovereignty doctrine to justify their continued pursuit of Walker. In the

cases against Walker, there is in reality but one sovereign at work. Because

of that the state cases are barred and must be dismissed.

CR. (Cause No. 14-19965) at 8.

It cannot, therefore, be disputed that Walker alleged facts in his applications that, if true,

would show that he is being prosecuted by the same sovereign. Indeed, he said exactly

that.

The court of appeals holding is not only flawed by a false premise, it is undercut

by an improper exercise of jurisdiction as well. Courts of appeals do not have original

jurisdiction of habeas matters, but here the court of appeals affirmed the district court by

deciding that the district court could have refused to issue writs sought by Walkers

applicationsa decision that was beyond its authority.

The district court and the court of appeals have so far departed from the accepted

and usual course of judicial proceedings as to call for an exercise of this Courts power of

supervision. Review is warranted.


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II. Discussion.

A. A Writ of Habeas Corpus Is a Writ of Right.

Texas district courts have constitutional and statutory authority to issue writs of

habeas corpus. Tex. Const., art. V, 8; Tex. Govt Code 24.011; Tex. Code Crim. Proc.,

art. 11.05; Ex parte Hargett, 819 S.W.2d 866, 867 (Tex. Crim. App. 1991). The Texas

Constitution provides that the writ of habeas corpus is a writ of right. Tex. Const., art.

I, 12. The Texas Code of Criminal Procedure further provides that it is the duty of a

district court, upon proper motion, to [issue]the writ under the rules prescribed by law.

Tex. Code Crim. Proc., art. 11.05.6 The writ shall be [issued] without delay by the judge

or court receiving the petition, unless it be manifest from the petition itself, or some

documents annexed to it, that the party is entitled to no relief whatsoever. Id.art. 11.15.

Where one entitled to a writ of habeas corpus makes proper application for it to the proper

court having jurisdiction, said application conforming to all the statutory requirements and

probable cause being shown, the writ of habeas corpus cannot be denied, for it then

becomes a constitutional right. Neither can it be denied where the [issuing] of it is made

an imperative duty by statute. Click v. State,39 S.W.2d 39, 41 (1931); see also In re

Piper, 105 S.W.3d 107, 110 (Tex. App.Waco 2003, orig. proceeding).

B. Courts of Appeals Have No Authority to Issue Writs of Habeas Corpus.

The court of appeals decided that the district court could have correctly refused to

issue writs when presented with Walkers applications. Ex parte Walker, 2016 WL 908374

6Article 11.05 uses the word grant instead of issue. By grant, the code refers to the issuanceof the writ, not the grant of relief. Issue was substituted for grant here and below for clarity.


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at *5, *9. However, courts of appeals do not have jurisdiction to decide whether to issue

writs of habeas corpus. See Tex. Code Crim. P., art. 11.05; Greenville v. State, 798 S.W.2d

361, 362 (Tex. App.Beaumont 1990, no pet.) (Art. 11.05 specifically omits courts of

appeals from the list of courts empowered to issue or grant a writ of habeas corpus). A

court of appeals jurisdictionis strictly appellate[.] Greenville, 798 S.W.2d at 362.

A court of appeals has no authority to issue a writ of habeas corpus, nor does it have

authority to review a district courts refusal to issue a writ, despite its strictly appellate

jurisdiction. An applicants remedy from a district courts refusal to issue a writ is to

present his application to another court of competent jurisdiction. In re Piper, 105 S.W.3d

at 110. An applicant has no right to appeal such a refusal. Id.

In Greenville, the appellant appealed to the court of appeals from the denial of a

pretrial writ. On appeal, the appellant raised issues that had not been presented to the

district court by either party. The court held that, in the particular context of an appeal

from the denial of pretrial habeas relief, to rule upon issues raised to us for the first time

would place us in the position of exercising originaljurisdiction, a position that [Article]

11.05 indicates we do not have. Greenville, 798 S.W.2d at 362 (emphasis in original).

The State never contended, in either the district court or in the court of appeals, that

the district court could have denied an evidentiary hearing on Walkers applications

because it could have refused to issue the writs at the very beginning. That after-the-fact

ratification of the district courts summary deniala hearing was conceived by the court of

appeals sua sponte. See Ex parte Walker, 2016 WL 908374 at *5, *9. By raising and

deciding the issue on its own, the court of appeals exercised original jurisdiction over a


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matter (whether a writ should be issued) that Article 11.05 indicates a court of appeals does

not have. See Greenville, 798 S.W.2d at 362. Alternatively, the court of appeals reviewed

a district court decision that it had no authority to review. See In re Piper, 105 S.W.3d at

110. Either way, review by this Court is warranted.

C. The Sham Prosecution Exception.

Walker presented a viable claim for relief in his habeas applications, and the district

court should have issued writs and conducted an evidentiary hearing. See CR. (Cause No.

14-19965) at 4-56 (the application with exhibits). Successive prosecutions such as those

brought by the State against Walker have long been disfavored as a matter of sound public

policy. See Rinaldi v. United States, 434 U.S. 22, 26-29 (1977) (discussing the Petite

policy and the unfairness that is associated with successive prosecutions [by different

sovereigns] based on the same conduct). While being consistently disfavored, successive

prosecutions by different sovereigns are legally permissible except where the separate

sovereigns have effectively become one. The circumstances here present such an

impermissible situation.

The only deviation from the dual sovereignty rule is found in the sham

prosecution exception. United States v. Moore, 958 F.2d 646, 650 (5thCir. 1992); see

also Ex parte Gary, 895 S.W.2d 465, 468 (Tex. App.Amarillo 1995, pet. refd). This

narrow exception bars a subsequent prosecution if the two sovereigns were so intertwined

that the state in bringing its prosecution was merely a tool of the federal authorities[.]

Moore, 958 F.2d at 650 (quotingBartkus,359 U.S. 121).


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[The notion of dual sovereignty] rest[s] on the basic structure of our federal

system, in which states and the national government are separate political

communities. State and federal governments [derive] power from different

sources, each from the organic law that established it....Each has the power,

inherent in any sovereign, independently to determine what shall be an

offense against its authority and to punish such offenses, and in doing so eachis exercising its own sovereignty, not that of the other.

United States v. Wheeler,435 U.S. 313, 320 (1978) (citations omitted). However, if the

same prosecutor simultaneously derives power from both a state and the federal

government, then the whole underpinning of federalism is destroyed. United States v.

Belcher, 762 F.Supp. 666, 671 (W.D. Va. 1991). When two sovereigns have essentially

pooled their powers in one prosecutorin reality there are no longer two sovereigns at

work. Instead, the pooling of prosecutorial power effectively creates one super sovereign,

i.e., a unitary government. Id.

Contrary to the court of appeals finding, Walker set out allegations that, if true,

would have triggered the sham prosecution exception and barred further prosecution. See

CR. (Cause No. 14-19965) at 4-56 (the application with exhibits). State and federal

authority was pooled in the Jefferson County District Attorneys Office when the decision

was made to seek the indictments now pending against Walker. Walker clearly made that

very allegation in his applications. See id. at 4-5, 8. Walker made a sufficient showing to

require the issuance of writs on his applications, and an evidentiary hearing should have

been held to determine the merits of those applications. They should not have been

dismissed out of hand.

Even if the court of appeals had the initial authority to consider whether the district

court could have refused to issue writs on Walkers applications, the court of appeals still


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erred in ultimately concluding that Walker was not entitled to have the writs issued.

Review should be granted to cure that error, and the court of appeals should be required to

address the issues presented in the parties briefs.

D. Summary Denial Was Inappropriate.

Summary disposition is improper if factual issues necessary for decision involve the

determination of individuals subjective state of mind. See Croley v. Matson Navigation

Co., 434 F.2d 73, 77 (5th Cir. 1970) (addressing summary judgment); NLRB v. Smith

Industries, 403 F.2d 889, 895 (5th Cir. 1968) (same); RileyStabler Constr. Co. v.

Westinghouse Electric Co.,396 F.2d 274, 277 (5thCir. 1968), rehearing denied 401 F.2d

526 (5th Cir. 1968) (same); Marsden v. Patane, 380 F.2d 489 (5th Cir. 1967) (same);

Alabama Great So. R.R. Co. v. Louisville and Nashville R.R.,224 F.2d 1 (5thCir. 1955)

(same). [W]here motive, intent, subjective feelings and reactions, consciousness and

conscience [are] to be searched,examination and cross-examination [are] necessary

instruments in obtaining the truth. Alabama Great So. R.R. Co.,224 F.2d at 5.

[In evaluating summary disposition, a court should weigh]the need for

cross-examinationin relation to the evidentiary materials, the general

desirability of demeanor testimony, theaccess to proof by the opposing

partyand the desirability that the case receive the full exploration of [an

evidentiary hearing].

Stewart v. Credit Bureau, Inc.,734 F.2d 47, 54 (D.C. Cir. 1984) (quoting Lipschutz v.

Gordon Jewelry Corp., 373 F.Supp. 375, 385 (S.D. Tex. 1975)).

Walkers claims for relief based on the sham prosecution exception are entirely

dependent on the motivation and intent of the state and federal authorities. The question

is whether the state and federal prosecutors colluded and pooled their resources and


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authority in a mutual pursuit of Walker manifested in the pending indictments. These state-

of-mind questions are not suitable for summary disposition, nor can an applicant be

expected to marshal evidence of a persons state of mind without an evidentiary hearing.

See id. The district court erred by summarily denying relief, and the court of appeals was

wrong to ratify that denial on any reasoning. See id.

Real harm occurred when the district court ruled without a hearing. The district

courts order assumes without basis that there was in fact no collusion between the state

and federal officials. Walkers access to potentially helpful evidence was cut off when the

district court issued its summary denial because he no longer had the power of compulsory

process. Without the authority to subpoena documents and witnesses to a hearing, Walker

had no chance of securing the evidence needed to show he was entitled to relief. It is

fundamentally unfair for a court to decide that an applicant cannot prove his case without

first giving him a reasonable chance to prove it.

Walkers applications were sufficient to warrant the issuance of writs of habeas

corpus. The allegations in the applications also warranted examination in a hearing at

which witnesses could be compelled to produce evidence and testify. The district courts

summary denial was improper. See id.

III. Conclusion.

The court of appeals never actually decided the issue with which it was presented,

i.e., whether the district court erred in failing to holding an evidentiary hearing on Walkers

applications. The court of appeals decided that the district court could have refused to issue


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writs on Walkers applications insteada decision about which the court of appeals had

absolutely no authority to make.

Walker seeks review for an initial determination of whether the court of appeals had

jurisdiction to determine that the district court could have properly refused to issue the

writs sought by Walkers applications. If the court of appeals lacked the jurisdiction to so

decide, the cases should be remanded to the court of appeals to address the issues actually

raised by the parties. If the court of appeals appropriately exercised its jurisdiction, this

Court should review the court of appeals holding that Walker failed to meet his burden to

warrant the issuance of writs of habeas corpus by the district court. If that burden was in

fact met, the cases should be remanded to the court of appeals to address issues raised in

the parties briefs.

Walker alternatively seeks review and remand to the district court so that the district

court can clarify whether its denial of relief was a refusal to issue the writs, or a denial of

relief on the merits. If it was the former, Walker seeks remand for the issuance of a writ

by the district court or another court of competent jurisdiction followed by an evidentiary

hearing. If it was the latter, Walker seeks remand for an evidentiary hearing.


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Respectfully submitted,

DEGUERIN,DICKSON,HENNESSY &WARD

/s/Dick DeGuerin

Dick DeGuerinState Bar No. 05638000

[email protected]

Matt Hennessy

[email protected]




(713) 223-5959 Telephone

(713) 223-9231 Facsimile

Attorneys for Petitioner


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CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing has been delivered to

the following parties via electronic filing on May 9, 2016:

Wayln G. ThompsonAssistant District Attorney

1085 Pearl St.


Lisa McMinn

State Prosecuting Attorney

P O Box 13406

Austin, Texas 78711

/s/Dick DeGuerin

Dick DeGuerin

CERTIFICATE OF COMPLIANCE

Pursuant to TEX. R. APP. P. 9.4, counsel hereby certifies that this brief contains

3910 words. This is a computer-generated document created in Microsoft Word, using 13-

point typeface for all text, except for footnotes which are in 12-point typeface. In making

this certificate of compliance, I am relying on the word count provided by the software

used to prepare the document.

/s/Dick DeGuerin

Dick DeGuerin


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Appeal for BISD's Calvin Walker

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Transcript of Appeal for BISD's Calvin Walker