Ex parte Walker

• Decision Date: 09 March 2016
• Docket Number: NO. 09–15–00037–CR, NO. 09–15–00040–CR, NO. 09–15–00039–CR, NO. 09–15–00041–CR, NO. 09–15–00038–CR, NO. 09–15–00042–CR,09–15–00037–CR
• Parties: Ex Parte Calvin Gary Walker, Appellant
• Court: Texas Court of Appeals

489 S.W.3d 1

Ex Parte Calvin Gary Walker, Appellant

NO. 09–15–00037–CR

NO. 09–15–00038–CR

NO. 09–15–00039–CR

NO. 09–15–00040–CR

NO. 09–15–00041–CR

NO. 09–15–00042–CR

Court of Appeals of Texas, Beaumont.

Submitted on June 10, 2015

Opinion Delivered March 9, 2016

Discretionary Review Refused June 15, 2016

Dick Deguerin, Matt Hennessy, DeGuerin, Dickson, Hennessy & Ward, Houston, TX, for Appellant.

Bob Wortham, Criminal District Attorney, Wayln G. Thompson, Assistant Criminal District Attorney, Beaumont, TX, for Appellee.

Before McKeithen, C.J., Kreger and Horton, JJ.

OPINION

CHARLES KREGER

, Justice

This is a consolidated, accelerated appeal from the trial court's orders denying habeas corpus relief in six cases. In his sole issue, appellant Calvin Gary Walker contends that the trial court erred by ruling on Walker's pretrial petitions for writ of habeas corpus without conducting an evidentiary hearing and without notifying Walker of its intent to rule without a hearing. We affirm.

I. Background

On July 29, 2014, a Jefferson County grand jury returned six felony indictments against Walker. In cause numbers 14–19965, 14–19966, 14–19967, and 14–19968, the indictments charge Walker with securing execution of a document by deception. In cause numbers 14–19969 and 14–19970, the indictments charge Walker with money laundering.¹

On September 23, 2014, Walker filed six pretrial petitions for writs of habeas corpus, seeking dismissal of the charges in all six cases on double jeopardy and due process grounds. In his petitions, Walker alleged that he was previously indicted in federal court on May 4, 2011. The federal indictment, which Walker attached as an exhibit to his habeas petitions, charged Walker with mail fraud, wire fraud, interstate transportation of funds by fraud, fraud upon programs receiving federal funds, and money laundering. The thirty-seven count indictment was based on allegations that Walker had used his electrical contracting business to defraud the Beaumont Independent School District (“BISD”). According to Walker, his federal case was ultimately tried to a jury, but ended in a mistrial in December 2011 after the jury was unable to reach a verdict. Walker alleged that a second federal trial was later scheduled; however, shortly before it was set to begin, the United States Attorney's Office for the Eastern District of Texas (“USAO”) reached a plea agreement with Walker. Walker alleged that under the terms of the plea agreement, he agreed to plead guilty to a federal misdemeanor charge of failing to pay a tax due and owing. In exchange, the USAO agreed not to prosecute Walker for any offenses of which it had knowledge. According to Walker, the USAO dismissed all charges contained in the original federal indictment against Walker on December 12, 2012, in accordance with the terms of the plea agreement.

Walker alleged that following the resolution of his federal case, John Malcolm Bales, the United States Attorney for the Eastern District of Texas, and other individuals within the USAO and federal law enforcement, were “unhappy that Walker's trial ended in a mistrial” and were “dissatisfied” with the manner in which Walker's federal case had been resolved. He alleged that Bales “expressed these lingering sentiments” during a press conference regarding the indictment of two BISD administrators in January 2014. Specifically, Walker, relying on a newspaper article discussing the press conference, alleged that Bales made the following statements in reference to Walker's earlier federal prosecution:

“One of the things we have experienced here was quite surprising to me.... 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 BISD—and I still do—was the sensitivities in this community that are racially charged. I'm not used to being accused of being on anybody's side. The only side we're on is law and order—and justice.”

Walker further alleged that at the time his federal case concluded in December 2012, attorney Cory Crenshaw was employed as an Assistant United States Attorney in the USAO under Bales. According to Walker, Crenshaw held that position until January 2014, at which time Crenshaw was appointed to serve as the Jefferson County District Attorney. Walker alleged that on March 5, 2014, less than two months after Crenshaw's appointment, Crenshaw and his former boss, Bales, announced the formation of a joint task force “to investigate and prosecute major crimes[,]” including “crimes related to the abuse of public trust.” In addition, Walker alleged that on May 12, 2014, Crenshaw was appointed to serve as a Special Assistant United States Attorney for the Eastern District of Texas to “assist with Joint Task Force Cases.” Walker specifically pointed out that the letter authorizing Crenshaw's appointment as a Special Assistant United States Attorney, which Walker attached as an exhibit to his habeas petitions, stated that as a condition of the appointment, Crenshaw was required to “report to and act under” the direction of Bales or “any Assistant United States Attorney that [Bales] may designate with regard to any matter handled.” Walker claimed that less than three months after this series of events, the Jefferson County District Attorney's office, under the direction of Crenshaw, secured the six pending state indictments against Walker and that the conduct alleged in the state indictments is “precisely the same conduct” that was covered by his federal plea agreement.

Based on these alleged facts, Walker claimed in his habeas petitions that his six state prosecutions violate state and federal guarantees against double jeopardy and his right to due process. Walker acknowledged in his habeas petitions that the State of Texas and the United States are separate sovereigns and are generally permitted to conduct separate prosecutions of a defendant based on the same conduct. He claimed, however, that this general rule of dual sovereignty is subject to an exception, commonly referred to as the “Bartkus

exception,” which prevents successive prosecutions by separate sovereigns when one prosecuting sovereign acts as a tool for the other, or when a prosecution by one sovereign amounts to a “sham” for a second prosecution by another sovereign.

See Bartkus v. Illinois, 359 U.S. 121, 123–24, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959)

. Relying on this purported exception, Walker alleged that the Jefferson County District Attorney's office, in bringing its six state prosecutions against Walker, was being used as a mere tool of federal authorities who were dissatisfied with the outcome of Walker's federal trial and that the State's cases are nothing more than a “sham and cover” for what is essentially a second federal prosecution for the same acts. Accordingly, Walker claimed that the State of Texas and the United States should be treated as a “single sovereign” for purposes of his six state prosecutions. Further, Walker alleged that because the state and federal governments have effectively operated as “a single sovereign” under Bartkus, the State is bound by the terms of the federal plea agreement, and the State's prosecution of the pending state charges unconstitutionally breaches that agreement.

The trial court set the habeas petitions for a hearing, which, according to Walker, was scheduled to be held on November 24, 2014. Walker subpoenaed Crenshaw and Bales to appear at the hearing to give evidence relevant to Walker's claims for habeas relief. Walker also served a subpoena duces tecum on the Jefferson County District Attorney's office, seeking:

... all communications concerning Calvin Walker or the Beaumont Independent School District from May 4, 2011 to the present, between any representative of the Jefferson County District Attorney's Office and any representative of the following agencies: the Department of Justice; the United States Attorney's Office for the Eastern District of Texas; the Federal Bureau of Investigation; the Internal Revenue Service; and any state agency.

The State filed written objections, a motion to quash, and a motion for protective order in response to the subpoena duces tecum.²

According to Walker, the trial court, sua sponte, cancelled the hearing on Walker's habeas petitions on November 21, 2014. On December 18, 2014, the trial court issued an order denying Walker's habeas petitions on their merits. The trial court's order specifically acknowledged that a hearing on Walker's petitions was initially scheduled, but stated that the trial court had examined the parties' pleadings and attached evidentiary exhibits, conducted additional legal research, and concluded that it could “render a proper ruling without further factual development of applicant's claim.” Further, the trial court's order stated, in relevant part:

Assuming without deciding that the Bartkus

-exception presents a cognizable claim for pretrial habeas corpus relief when sufficiently supported by the necessary facts and circumstances discussed therein, the Court finds the attached evidentiary exhibits do not contain the highly particularized, and somewhat unique, facts and circumstances, as suggested in Bartkus, to establish, by a preponderance of the evidence, applicant's entitlement to the habeas corpus relief he requests.

.....

Having examined the evidentiary exhibits submitted by both parties and currently controlling legal authorities pertinent to the issue presented, the Court finds no direct, affirmative evidence demonstrating that the six pending state felony indictments at issue resulted from (a) one independent sovereign

[i.e., the federal prosecutor in Beaumont] manipulating another independent sovereign [i.e., the Jefferson County District Attorney] into prosecuting applicant in state court, (b) the state and the federal prosecutor being the same person,

...