Callaway, Anthony Damen

• Court: Court of Criminal Appeals of Texas
• Decided: December 13, 2017
• Docket: WR-87,705-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NOS. WR-87,705-01 AND WR-87,705-02

EX PARTE ANTHONY DAMEN CALLAWAY, Applicant

ON APPLICATIONS FOR WRITS OF HABEAS CORPUS CAUSE NOS. W199-80779-04HC AND W199-80780-04-HC IN THE 219TH DISTRICT COURT FROM COLLIN 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 these applications for writs of habeas corpus. Ex

parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant pleaded guilty to two charges

of failure to comply with sex offender registration requirements, in exchange for two six-year

probated sentences. His probation was later revoked and he was sentenced to three years’

imprisonment for each charge, to run concurrently. He did not appeal his convictions. Although

Applicant has discharged his sentences in these cases, he alleges that he is continuing to suffer

collateral consequences because these convictions are being used to enhance punishment in a new 2

case. Applicant has alleged sufficient collateral consequences to allow this Court to address the

merits of his claims. See Ex parte Harrington, 310 S.W.3d 452 (Tex. Crim. App. 2010).

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

assistance, resulting in involuntary pleas. Applicant alleges that trial counsel failed to investigate

the validity of the indictments, and therefore failed to discover that the offenses should have been

state jail felony charges rather than third degree felonies. Specifically, Applicant alleges that the

offense requiring him to register as a sex offender was a juvenile adjudication, rather than a “sexually

violent” felony conviction. If this was indeed the case, then Applicant’s failures to comply with sex

offender registration conditions should have been charged under former Article 62.10(b)(1)(2004),

and should have been state jail felonies. The indictments in these cases charged Applicant with

failure to comply with sex offender registration requirements under former Article 62.10(b)(2)

(2004), third degree felonies. The indictments also alleged two prior, non-sequential felony

convictions for enhancement purposes. However, if the primary offenses were state jail felonies

rather than third degree felonies, punishment could not have been enhanced using prior non-

sequential felony convictions.

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. The

trial court may use any means set out in TEX . CODE CRIM . PROC. art. 11.07, § 3(d).

1 This Court has reviewed Applicant’s other claims and finds them to be without merit. 3

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

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: December 13, 2017 Do not publish