Calhoun, Warren Tyrone

• Court: Court of Criminal Appeals of Texas
• Decided: September 12, 2018
• Docket: WR-87,967-03
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-87,967-03

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).

Applicant contends, among other things,1 that his trial counsel rendered ineffective assistance

1 This Court has reviewed Applicant’s other claims and finds them to be without merit. 2

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 asserts that one of the

statements was made spontaneously and not in response to questioning, but the appellate opinion

indicates that all of the statements were made in response to questions from police officers. It is not

clear from the record whether Applicant was in custody when he made the statements in question.

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 order trial counsel to respond to Applicant’s claim of ineffective assistance of counsel.

Specifically, trial counsel shall state whether Applicant’s statements to police were made in response

to custodial interrogation. If Applicant was arguably in custody when he made the statements and

had not been given Miranda warnings, trial counsel shall state whether he considered filing a motion

to suppress or objecting to the admission of those statements, and if not why not. The trial court may

use any means set out in TEX . CODE CRIM . PROC. art. 11.07, § 3(d). In the appropriate case, the trial

court may rely on its personal recollection. Id.

If the trial court elects to hold a hearing, it shall determine whether Applicant is indigent.

If Applicant is indigent and wishes to be represented by counsel, the trial court shall appoint an

attorney to represent Applicant at the hearing. TEX . CODE CRIM . PROC. art. 26.04.

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 3

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 resolved the fact issues. The

issues shall be resolved within 90 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 120 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: September 12, 2018 Do not publish