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LETTER BRIEF TO THE
TEXAS COURT OF CRIMINAL APPEALS
EN BANC
TR.CT.NO. 20118
To the Honorable Judges of the Texas Court of Criminal Appeals. I have been
convicted of a crime I did not do. There is more evidence to support the facts that there
was no crime committed at all. After two trials I was convicted by a prosecutor, Bill Ray
Gant, who was allowed by the State Court to use unethical tactics to create an unfair,
unconstitutional trial.
I come before this, the highest State Court in Texas, to grieve the following: It is
my right, according to the First Amendment to the United States Constitution to have my
grievance heard. The record will reflect the following:
In March of 2002, a one day trial was held where the State Court allowed
Assistant District Attorney Billy Ray Gant to completely side step Discovery and Texas
Rules of Evidence to create a trial so prejudicially unfair as to render it completely
Unconstitutional^111 Amendment right to impartial jury (Fair trial). 14th Amendment
Equal Protection,,of law,and Due Process.
In December 2003, the 6th District Court of Criminal Appeals, Texarkana,
affirmed the conviction via a Direct Appeal that attacked none of the trial errors
preserved by trial attorney, Donnie Jarvis Jr. of Sherman, Texas. This attorney was court
appointed for trialandthe Direct Appeal by the convicting court. Attorney for the Direct
Appeal has a duty to inform his client of it being affirmed by the Court of Criminal
Appeals, yet he did not. It was a blatant prejudicial act hiding the fact that he deliberately
hid certain facts from the higher court that would have reversed this conviction.
A State Habeas Corpus was filed. The common man's only Writ of Right to
grieve the issues of an unlawful conviction to, first, the convicting court then the Texas
Court of Criminal Appeals, my right to "Petition the Government for Redress of
Grievances" is protected in the United States Constitution Amendment number one,
Article I section 9 of the United States Constitution clearly states, "The privilege of the
writ of Habeas Corpus shall not be suspended." Yet my first Habeas Corpus was
suspended and then rendered ineffective by the convicting court. It was literally removed
from the Appellate process altogether. With no accountability by this court or any other.
Later, after discovering impeachment evidence that was deliberately withheld by the
prosecution during trial, a State Evidentiary hearing was held proving a gross miscarriage
of justice. But I was denied reliefdue to the State Courts determination that the first
Habeas Corpus petitionwas the place to address the issues presented, "No second bite at
the apple." Yet the first Habeas was never heard! Even after this very court ordered
FanninCounty to process this writ, they refused. Until a general denial was issuedby the
very entity of the judicial systemthat railroadedme in trial. No State judge
acknowledged receipt of the writ. NoJState judge addressed the same issues that "Should
have been presented in petitioners original Habeas." In essence, this State Court was
allowed to completely side step any wrongdoing of blatant acts of unethical,
unconstitutional behavior by this very court. (See enclosed documents.)
I had no effective representation in trial to protect my rights as a United States
Citizen. The same ineffective attorney was put in place to protect the State Court of
wrongdoing and preserve a conviction that was illegal, prejudicial and unconstitutional. I
had NO effective Direct Appeal. No petition for Discretionary Review and no State
Habeas Corpus. The papers were filled out and filed, but no State Post Conviction
Review to insure conformity in the judicial process that governs our society.
The Federal Courts use this against me to deny me relief. Just like Fannin County
used their own mishandling of the first State Habeas Corpus to deny the second. This is
Texas justice? What is the purpose of this court if not to fix what needs fixing? How
many othershave been subject to this kind of judicial treatment? When will somebody do
something about it?
PRAYER
My hope is that, as a United States Citizenunder two Constitutions that forbid
this kind of treatment, the Texas Constitution and the United States Constitution, this
Honorable Court, who holds Jurisdiction over this matter, will appoint a Court of Inquiry,
in the interest ofjustice, to look and see what I say is true. Ask Questions. Protect my
Rights! Please give me dueprocess! Start withthe trial and askAttorney Donnie Jarvis
Jr. of Sherman, Texas, Why he didn't address Blatant recorded trial errors in the Direct
Appeal? Ask him why he failed to notify me of its being affirmed, robbing meof a
P.D.R. Ask the County Judge why she failed to acknowledge petitioners FirstHabeas
Corpus and why she, (Judge Laurine Blake) ignored an order bythis very court. Ask
why I did not get proper protection under the law and due process as prescribed in the
14th Amendment to the United States Constitution.
Recently I filed a motion for Leave to file an Out of Time Petition for
Discretionary Review citing ex-parte Wilson and ex-parte Jarrett, but was denied. There
was no reason given. An Out of Time P.D.R. is proper to rectify attorney error. It would
also allow me to prove everything in this letter brief as it is all a matter of record.
My Direct Appeal and the handling of the first Habeas Corpus is so prejudicial it
is the very definition of Obstruction of Justice. To do nothing is the very definition of
Tyranny. I've been trying to get a review for fifteen (15) years! Just take a look.
PLEASE!
Thank You.
Respectfully Submitted,
Walter G. Anderson #1092654
Eastham Unit, Lovelady, Texas
"to ^txv\v\«» CouaW Cm Awo^W* $>WU [1.07
D^ AllO^ fur\*V(Vv (j)aA\y W^'^M^ 4o ^lAe Or\
Scanned Dec 14, 2010
IN THE COURT OF CRIMINAL APPEALS
OF TEXAS -•---"; ^r
WR-61,082-01
WALTER G. ANDERSON, Relator
DISTRICT CLERK OF FANNIN COUNTY, Respondent
ON APPLICATION FOR A WRIT OF MANDAMUS
FROM FANNIN COUNTY
Per Curiam.
ORDER
This is an original application for writ ofmandamus. Relator contends that he has sent an
application for writ of habeas corpus to the District Clerk of Fannin County and that more than
35 days have passed without the writ either being filed or forwarded to this Court. There is no
record of the habeas corpus application having been filed in this Court, and no record of a timely
filed Order Designating Issues.
It is this Court's opinion that additional informationis required before a decision can be
ft pp-t ad? v ft t/-
Scanned Dec 14, 2010 ;f|
reached on the motion for leave to file the instant action. The Respondent, District Clerk of
FanninCounty, is orderedto file withthis Court within thirty days a response by submitting on
the recordsuch habeas corpus application, a copy of a timely filed orderdesignating issuesto be
investigated, see Martin v. Hamlin, 25 S.W.3d 718 (Tex. Crim. App. 2000), orby stating the
nature of any applications filed by Relator such that theyarenot filedpursuant to TEX. Code
CRIM. Proc. art. 11.07, § 3, or that no applications by Relator have been filed. This application
r for writ of mandamus is held in abeyance pending compliance with this Qrder. - »
DELIVERED: ( 'March 2, 2005
DO NOT PUBLIS^
s >
lO/J */I*NX
wytiMAjy £\ ^
Pq *f 13
>^ -ft - 2£>0.
THE STATE OF TEXAS ORIGINAL ANSWER
ANT> OKNERAL DENIAL
TO THE HONORABLE JUDGE OF SAID COURT:
Comes now, The State ofTexas in the above entitled and numbered cause, and files this its
Original Answer and General Denial herein, and in this connection would respectfully show the
Court the following:
I.
The State of Texas (hereinafter the "State") denies all and singular, each and every
allegation- contained in Applicant's Application for a Writ ofHabeas Corpus Seeking Relief From
Final Felony Conviction Under Code ofCriminal Procedure, Article 11.07 and demands strict proof
thereof.
H.
Further, the State would show that, as a matter oflaw, there are no controverted, previously
unresolved issues offact material to the legality ofthe Applicant's confmement. ™-^*^~—***~"—
PRAYER
WHEREFORE/PREMISES CONSIDERED, the State prays that Applicant take nothing by
reason of this Application for Writ ofHabeas Corpus and that it be denied and the State be
discharged with its cost.
H3
P<\ i 15
Scanned Dec 14, 2010
Respectfully submitted,
^y
chard E.-Glaser
County and District Attorney ofFannin County
State Bar No. 08000000
101 E. Sam Raybum Drive, Suite 301
Bonham, Texas 75418
Phone (903) 583-7448
Fax (903)583-7682"^"^^ "":~~-•—-_--_:••
Attorney for State ofTexas
CERTIFICATE OF SERVICE
On this the day ofAugust, 2005,1 mailed a true copy of the above Original Answer
and General Denial to Walter C. Anderson, Applicant, by regular mail.
m
«°1 16
ill
NOTICE THAT WRIT OVERRULED BY OPERATION OF LAW
CAUSE #20118-A •&&•"••'
EX PARTE: > IN THE 336TH JUDICIAL DISTRICT
WALTER GERALD ANDERSON > OF FANNIN COUNTY, TEXAS
CLERK'S CERTIFICATE UNDER ART. 11.07, SEC. 2(c), V.A.C.C.P..
This is to certify that the above numbered and entitled
Petition-for Writ of-Habeas Corpus Poj^Gonvicjtip^Tl .07 -VAfrp-^'y
filed in this Court on the J^ day of November, 2004, arid that a
copy of said PeferEIon wast^erved^ upon the Distrjj&fe^Attorney's
office on the/7th day of July, 2005; that further, as clerk of this
court, 1 hereby^certify LhaL no orders have £>een entered by the
trial court within a 35-day limit from the filing of this petition,
and that therefore, pursuant to the provision of Art. 11.07, Sec.
2(c), supra, it appears that the trial court's failure to act
within the time limits as prescribed by statute constitutes a
finding that there are no previously unresolved facts material to
the legality of the applicant's confinement, and therefore, it
would appear that the application for Writ of Habeas Corpus has
been overruled by opera£irdn~~of law."
So certified th^s 26th day of August, 2005.
NANOTYQI
DlsrJfict Clerk
f^cJL^r^rp Clerk
47
Case 4:06-cv-00204-RC-/1" -\ Document 38-1 Filed 01/23/12 r ie 1 of 62 PagelD #: 261
1
1
REPORTER'S RECORD
VOLUME 1 OF 1
2
TRIAL COURT CAUSE NO. 2 0118-B
3
STATE OF TEXAS ) IN THE DISTRICT COURT
4
Plaintiff, )
5
vs_ ) FANNIN COUNTY, TEXAS .
6
WALTER GERALD ANDERSON )
7
Defendant. ) 336TH JUDICIAL DISTRICT
S
8
9
10
11
******************
12
I
13
WRIT OF HABEAS CORPUS
******************
14
15
16
17 |
18 |
19
20
On the 12th day of November, 2010, the following
21
proceedings came on to be heard in the above-entitled
22
and numbered cause before the Honorable Laurine Blake,
23
Judge Presiding, held in Bonham, Fannin County, Texas:
24
Proceedings reported by stenographic method.
25
Charla Reamy, CSR, TCRR ApQfflilX y
(903) 583-2863 M / n^
Case 4:06-cv-00204-RC-/' <> Document 38-1 Filed 01/23/12 n ie 2 of 62 PagelD #: 262
APPEARANCES
l
2
Mr. James L. Moss
3 SBOT 24049592
Fannin County Criminal District
4 Attorney's Office
101 East Sam Rayburn Drive
5 Bonham, Texas 75418
(903) 583-7448
6
7 ATTORNEY FOR THE STATE OF TEXAS
8 - AND -
9
Mr. David K. Haynes
10 SBOT 09285500
Attorney at Law
11 2600 W. Eldorado Pkwy. Suite 220
McKinney,-Texas 75070
12 (972) 542-1793
13
ATTORNEY FOR THE DEFENDANT
14
15
16
17
18
19
20
21
22
23
24
25
Charla Reamy, CSR, TCRR
(903) 583-2863
Case 4:06-cv-00204-RC-/^: \ Document 38-1 Filed 01/23/12 r ie 3 of 62 PagelD#: 263
INDEX
l
VOLUME 1
2
3
WRIT OF HABEAS CORPUS
Page Vol
4
5 NOVEMBER 12, 2 010
6
Opening statement by Mr. Haynes 6 1
7 Opening statement by Mr. Moss 8 1
8 DEFENDANT'S WITNESSES
Direct Cross
9
Donnie Jarvis- 11,25 20,26
10
Darin Barnett 27,39,44 35
Walter Anderson 46 52
11 Both sides rest and close 54 1
Closing statement by Mr. Haynes 55 1
12
Closing statement by Mr. Moss 56 1
13 Court 's Ruling 59 1
14 Court Reporter's Certificate 62 1
15
16
17
18
19
20
21
2 2
23
24
25
•Charla Reamy, CSR, TCRR
(903) 583-2863
Case 4:06-cv-00204-RC-A' ^ Document 38-1 Filed 01/23/12 r qe 4 of 62 PagelD#: 264
l
EXHIBIT INDEX
2 (None.)
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Charla Reamy, CSR, TCRR
(903) 583-2863
Case 4:06-cv-00204-RC-/^ \ Document 38-1 Filed 01/23/12 ^ ie 5 of 62 PagelD #: 265
PROCEEDINGS
l
2
THE COURT: We're on the record in the
3
State of Texas versus Walter Anderson, Cause Number
4
20118-B. And, sir, you're Walter Anderson?
5
THE DEFENDANT: Yes, ma'am.
6
THE COURT: Let's have you stand and
7
we'll have you be sworn in. If you'll stand and raise
8 your right hand.
9
(The Defendant was sworn by the Court.)
10
THE COURT: Okay. You may be seated.
11
Okay. Do we have any witnesses here that the parties
12 would like to have sworn?
13
MR. MOSS: Yes, Judge.
14
MR. HAYNES: Mr. Jarvis, Judge.
15
THE COURT: Okay. We'll have each of you
16 raise your right hand.
17
(The witnesses were sworn by the Court.)
18
THE COURT: Okay. If you'll state your
19 name, please.
20
MR. BARNETT: Gary Barnett.
21
THE COURT: Say the last one.
22
MR. BARNETT: Barnett.
23
THE COURT: Can you spell --
24
MR. BARNETT: B-a-r-n-e-t-t.
25
THE COURT: Thank you, sir.
Charla Reamy, CSR, TCRR
(903) 583-2863
Case 4:06-cv-00204-RC-r < Document 38-1 Filed 01/23/12 r ie 6 of 62 PagelD #: 266
MR,
JARVIS: Donnie Jarvis, D-o-n-n-i-e
l
2 j-a-r-v-i-s.
3
THE COURT: Thank you. Does either side
4 desire to invoke the rule?
5
MR. HAYNES: We are going to invoke the
6 rule if the Court please.
7
THE COURT: Okay. The rule's going to
8
be invoked, so, gentlemen, we'll need both of you
9
outside until you're called to testify. Please
10
understand that part of the rule means you cannot
11
discuss your testimony with anyone while you're
12
waiting. Additionally, you may not listen to anyone
13
else's testimony, which includes, nobody can come out
14
and tell you what somebody else is saying. That's why
15
we have you outside the courtroom. Okay? Do y'all
16
have any questions? There are. different punishments
17
that could occur including contempt of the court if
18
you don't follow the rules. So, it's serious.
19
All right. Gentlemen, if you'll please
20
step outside, we will have you called in when it's
21
your turn to-testify. Thank you for being here.
22
(Witnesses exit the courtroom.)
23
THE COURT: Okay. We will hear the
24
requests of the parties at this time.
25
MR. HAYNES: Your Honor, this is a --
Charla Reamy, CSR, TCRR
(903) 583-2863
Case 4:06-cv-00204-RC-/- \ Document 38-1 Filed 01/23/12 ^ ie 7 of 62 PagelD #: 267
l
styled as a motion for new trial filed by the
2
defendant, Mr. Anderson, on the ground of newly
3
discovered evidence. Of course, it's filed outside of
4
what the rules provide for for filing a motion for new
5
trial, but the Court, I understand, is treating this
6 matter as a writ of habeas corpus.
7
We expect that the evidence is going to
8
demonstrate that key information about the State's
9
complaining witness was withheld at the time of trial,
10
and that that prevented the jury from finding out that
11
the complaining witness had an extensive prior
12
criminal record including a conviction for sexual
13
abuse in the -- in Essex County, New York, that
14
occurred on the 13th of April 2000, just a little
15
while before the case was tried. That prevented the
16
defendant's trial counsel from making a vigorous
17
cross-examination of the complaining witness, which,
18
if that had been able to have been done -- the case
19
basically turned on the believability of the
20
complaining witness. I don't think the Court's going
21
to be able to conclude beyond a reasonable doubt that
22
if the jury had heard that about the complaining
23
witness, the verdict would have been the same. And
24
that's what we think the evidence is going to
25
demonstrate to you this afternoon.
Charla Reamy, CSR, TCRR
(903) 583-2863
Case 4:06-cv-00204-RC-/" \ Document 38-1 Filed 01/23/12 r ie 8 of 62 PagelD #: 268
l
THE COURT: Thank you, Mr. Haynes.
2
Okay. Let's hear from the State.
3
MR. MOSS: Your Honor, initially the
4
State would agree that this case has been filed as a
5
motion for new trial based on newly discovered
6
evidence and that that motion has been filed outside
7
of the statutory guidelines and, as such, should be
8 denied.
9
Additionally, the State would also ask
10
the Court to take judicial notice of its file. You
11
will see that Mr. Anderson has previously filed a writ
12 of habeas corpus that was addressed by the court of
13
criminal appeals. In that writ of habeas corpus, he
14 complained, among other things, about ineffective
15
assistance at trial and his request for relief was
16 denied.
17
The State plans to show the Court that
18
back when this case was tried, it was the district
19
attorney's office practice at that time to provide a
20
criminal -- full criminal history of all witnesses
21
that planned to testify. The prosecutor that
22
prosecuted the case filed an affidavit in this court
23
-- Billy Gant -- indicating that he had no specific
24 recollection about the case but that it was the
25
process that the prosecutor's office followed at that
Charla Reamy, CSR, TCRR
(903) 583-2863
Case 4:06-cv-00204-RC-A 1 Document 38-1 Filed 01/23/12 *~ qe 9 of 62 PagelD #: 269
l
time and that he cannot think of any reason why
2
Mr. Barnett's criminal history would have been
3 withheld.
4
Additionally, Mr. Gant indicated that he
5
reviewed the record, and Mr. Anderson's trial counsel
6
Donnie Jarvis, in fact, questioned the alleged -- the
7
victim, Mr. Darin Barnett, about his previous
8
conviction, although -- the State will admit --
9
inartfully. Mr. Barnett -- the State will call
10
Mr. Barnett. Mr. Barnett will indicate that he was,
11
in fact, convicted in the year_oj_J^00_7£ojr__a sexual
12
offense. It was a felony. He was sentenced to a year
13
in county jail in the State of New York and that he
14
was required.to register as a sex offender and he has
15
been registered in the State of Texas since the time
16
he moved here in 2001 when he was released from jail
17 in Essex County, New York.
18
Mr. Barnett will also_^z_won1 d also___
19
testify that the lawyer for the defendant in that_
20
case, Donnie Jarvis, visited with him prior ^to^trial^
21
that they talked about his conviction for a
22
sexually-related matter. Mr. Barnett admitted^ -him.
23
that he was, in fact, a sex offender and required to
24
register. And so, at least at that point when
25
Mr. Jarvis had met with Mr. Barnett, that he was on
Charla Reamy, CSR, TCRR
(903) 583-2863
Case 4:06-cv-00204-RC-£r' x Document 38-1 Filed 01/23/12 P'-e 10 of 62 PagelD #: 270
10
l
notice that Mr. Barnett had some criminal history that
2
needed to be investigated. And^Mr^jJarvis will
3
testify that he ygmprnhered prosecuting -- or,
4
.remembers representing Mr. Anderson. He cannot recall
5
specifically if a criminal history was provided to him
6
or not. He has reviewed the record. He remembers
7
meeting with Mr. Barnett, he remembers talking to him
8
somewhat about his criminal history but he doesn't
9
have any specific recollection, and that he remembers
10
questioning Mr. Barnett on the stand about his
11 criminal conviction.
12
And then the State would tender to the
13
Court a trial transcript -- I don't know if the Court
14 has it -- of the trial at large.
15
MR. HAYNES: We certainly don't have any
16
objection to that and we would want the Court to
17 review the entire transcript.
18
THE COURT: That will be made part of the
19 record.
20
MR. MOSS: And I would just ask the Court
21
if you had the affidavit of Billy R. Gant. Should be
22 file marked November 10, 2010.
23
THE COURT: No, I'm not showing that
24
document to be filed. Wait. It looks like it got put
25
in one of the files but not the one I was operating
Charla Reamy, CSR, TCRR
(903) 583-2863
Case 4:06-cv-00204-RC-A" N Document 38-1 Filed 01/23/12 P ^e 11 of 62 PagelD #: 271
11
l under.
2
MR. MOSS: Yeah, it won't -- shouldn't be
3
in the writ file. It should be in the trial file. I
4 think that's the confusion.
5 THE COURT: Yes.
6
MR. MOSS: The files have been used
7 interchangeably.
8
THE COURT: Yes. This is in Cause Number
9
20118, is where the affidavit was located. And that
10
was from Billy Gant. Okay. Anything further?
11
MR. MOSS: Not at this time, Your Honor.
12
THE COURT: Okay. Mr. Haynes, you may
13 call your first witness.
14
MR. HAYNES: We call Donnie Jarvis.
15
THE COURT: Sir, if you'd come forward
16
and have a seat on the witness stand, please.
17
Okay. You may proceed.
18
MR. HAYNES: Thank you, Your Honor.
DONNIE JARVIS,
19
20
having been first duly sworn, testified as follows:
DIRECT EXAMINATION
21
22 BY MR. HAYNES:
23 Q. What's your name, sir?
24 A. Donnie Jarvis.
25
Q. What city do you live in, Mr. Jarvis?
Charla Reamy, CSR, TCRR
(903) 583-2863
Case 4:06-cv-00204-RC-^ N Document 38-1 Filed 01/23/12 P ^e 12 of 62 PagelD #: 272
12
l A. Sherman, Texas.
2 Q. And how long have you lived in Sherman?
3
A. All my life basically, except for when I went
4 to law school at Tech.
5 Q. All right. And how old a man are you?
6 A. Forty-two.
7
Q. And on March 20, 2002, were you a licensed
8 attorney in the state of Texas?
9 A. Yes.
10 Q. Are you a licensed attorney in the state of
11 Texas now?
12 A. Yes.
13 Q. Did you represent the defendant in this case,
14 Walter Gerald Anderson -- in this cause now on trial?
15 A. Yes.
16 Q. Were you hired or were you appointed?
17 A. Appointed.
18 Q. When were you first appointed?
19 A. I do not recall.
20 Q. Are you able -- when was the case tried?
21 A. I don't remember the exact date.
22
Q. If you saw the transcript, would it refresh
23 your memory?
24 A. Sure.
25
MR. HAYNES: May I approach the witness,
Charla Reamy, CSR, TCRR
(903) 583-2863
Case 4:06-cv-00204-RC-^ v Document 38-1 Filed 01/23/12 P -e 13 of 62 PagelD #: 273
13
1 Your Honor?
2 THE COURT: Yes, sir.
3 Q. (By Mr. Haynes) Mr. Jarvis, I'm just going
4 to show you the first page of the first volume of the
5 transcript. When you look at that, can that -- does
6 that refresh your memory about when the trial might
7 have been?
8 A. Yes.
9 Q. And when was it?
10 A. 20th of March, 2002.
11 Q. All right. So, it was tried in the spring of
12 2002. How long had you been representing Mr. Anderson
13 before the trial began?
14 A. Gosh, I don't remember, honestly. I searched
15 for my file and I could not find his file.
16 Q. All right. Weeks? Months? Days? Do you
17 have any idea?
18 A. I don't honestly.
19
Q. No idea at all. All right. Prior to the
20 beginning of the trial, did you confer with the
21 prosecutor?
22 A. I'm sure I did.
23 Q. Who was the prosecutor?
24
A. I want to think that it was Billy Gant.
25
Q. All right. Did you ask him for what we
Charla Reamy, CSR, TCRR
(903) 583-2863
Case 4:06-cv-00204-RC-A'' Document 38-1 Filed 01/23/12 P •« 14 of 62 PagelD #: 274
14
1
lawyers call the discovery information about the case?
2
A. I would think I would have. I can't say for
3
sure, but I would have told -- I think that was a
4 standard court rule --
5 Q. And did you --
6 A. -- it be provided.
7
Q. I'm sorry. I didn't mean to interrupt you.
8
Did you receive discovery information from Mr. Gant?
9
A. I do not -- I received some discovery, yes.
10
Q. Okay. Did it -- did you ask Mr. Gant for
11
information about the prior criminal record of any of
12 his witnesses?
13
A. I don't recall asking that specifically, but
14
that's what I was referring to a moment ago actually.
15
I think there was court rules stating it was supposed
16 to be provided prior to voir dire.
17
Q. All right. And, in particular, did you ask
18
him about the prior criminal record of his witness,
19 Darin Barnett?
20
A. I just don't remember if I did or didn't,
21 honestly.
22 Q. All right.
23
MR. HAYNES: Approach the witness again,
24 Your Honor?
25
THE COURT: You may.
Charla Reamy, CSR, TCRR
(903) 583-2863
Case 4:06-cv-00204-RC-A^ Document 38-1 Filed 01/23/12 P ^ 15 of 62 PagelD #: 275
15
1
q. (By Mr. Haynes) All right. I'm going to
2
direct your attention to page 30 of the trial record
3
and, in particular, your response to a question from
4
the Court at the bottom of the page. I understand
5
that this trial was eight years ago now. There's no
6
way you remember verbatim what was said. But when you
7
look at that document that I pointed out to you, does
8
that refresh your memory about a colloquy between you
9
and the trial court with regard to the information you
10
had been provided about the prior criminal record of
11 the witnesses?
12 A. Yes, it does.
13
Q. What did you tell the judge at that time?
14
A. I told the judge I didn't receive the
15
criminal history prior to the picking of the jury.
16
Q. All right. And understanding you can't
17
remember it now, surely at that time it was very fresh
18
in your1 mind about whether you had or had not received
19 the information.
20 A. True.
21
Q. All right. And you told the Court you
22 hadn't. Right?
23 A. Right.
24
Q. And you wouldn't have told the Court you
25 hadn't if you really had?
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(903) 583-2863
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16
l A. No, I would not have.
2
Q. All right. And you have looked for your file
3 and you don't have it. Right?
4 A. Agreed.
5
Q. So, there's no way to check now to see what
6 was in the file.
7 A. True.
8
Q. And even if you had the file, it would be
9
hard to say what was there now was there in March of
10 2002 .
11 A. Probably a fair statement.
12 Q. All right. If you had known about
13
Mr. Barnett's criminal record, would have you pointed
14 it out to the jury?
15 A. Yes.
16
Q. You'd agree with me that that would have
17 reflected badly on his credibility?
18 A . True .
19
Q. Do you know what his criminal record was at
20
that -- as it existed at that time, March 2002?
21
A. I've had a chance to look through this and
22
I'd forgotten this part of it, but, if I recall, I
23
asked him some questions in relation to him having
24
some criminal history in New York or something. If I
25 remember correctly.
Charla Reamy, CSR, TCRR
(903) 583-2863
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17
l
Q. The document before you, just switch over to
2
page 47 and 48. That's the point at which you're
3
asking him about his prior criminal record in New
4 York; is that correct?
5 A. That's correct.
6
Q. And you asked him if it was true that he'd
7
been convicted of a sexual assault in New York.
8 Right?
9 A. Correct.
10
Q. His answer was he had not?
11 A. Right.
12
Q. And you didn't have documents that would show
13 that he had.
14 A. True.
15
Q. Because, if you had, you would have shown
16 them to him. Right?
17 A. Agreed.
18
Q. All right. And if you didn't have those
19
documents, it was because the district attorney didn't
20 give them to you.
21 A. I agree.
22
Q. All right. .And he denied a lot of your
23
questions about his prior criminal record; is that
24 true?
25 A, That's true.
Charla Reamy, CSR, TCRR
(903) 583-2863
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18
l
Q. And you didn't have anything in writing --
. 2 A. Agree.
3
Q. -- to impeach him with.
4 A. Yes.
5
Q. Did you obtain any information from any other
6
source -- not the district attorney -- about
7 Mr. Barnett's prior criminal record?
8
A. I -- I think -- and I'm just going off what I
9
remember because I don't remember for sure that this
10
is correct. I know that I went out there to speak
11
with him where he was working and I want to think that
12
I was -- I talked to maybe another employee there or
13
somebody and got some rumor-information type of thing,
14
which is why I think that this goes on the way it does
15
because I'd heard some rumors that there might be
16 something.
17
Q. You asked -- you asked Barnett about whether
18
he was a drug user; is that correct?
19 A. Correct.
20
Q. Did you have any direct information from
21
Barnett himself that he was a drug user?
22
A. I don't think he told me directly. I don't
23 know for sure.
24
Q. Did you ever talk to Barnett, himself,
25
personally before you talked to him on the witness
Charla Reamy, CSR, TCRR
(903) 583-2863
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19
1 stand?
2
A. I know I went out there to talk to him. I
3
don't remember if I actually got to talk to him. I
4
don't know if I talked to his boss and/or him. I
5 honestly don't remember.
6
Q. So, whatever you used to cross-examine him
7
with that we see there on page 48 -- 47, 48, 49,
8
around there of the record -- was what you had picked
9
up when you went to his place of employment and talked
10
to him or maybe his coworkers.
11
A. Or rumors or something. I think it came from
12 investigating the case.
13
Q. All right. So -- and, at this point, at this
14
time, that's all you can tell us. You don't have any
15 documents about it.
16 A. I don't.
17
Q. Thank you, Mr. Jarvis.
MR. HAYNES: No further questions. Pass
18
19 the witness.
20
MR. MOSS: May I approach?
THE COURT: Yes.
21
CROSS-EXAMINATION
22
23 BY MR. MOSS:
24
Q. Mr. Jarvis, you cannot remember if you went
25 up and spoke to him or not?
Charla Reamy, CSR, TCRR
(903) 583-2863
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20
l
A. I don't remember for sure. I know that I
2
intended to. Whether I actually got to talk to him, I
3 just don't remember.
4
Q. Okay. I'm going to direct your attention to
5 page 43, Line 11.
6 A. Okay.
7
Q. If you'd just take a look at that.
8 A. Yeah. Okay.
9
Q. Okay. So, reading that, does that refresh
10 your memory?
11 A. It does.
12
Q. Did you get to go speak with Mr. Barnett in
13 preparing for this trial?
14
A. I did. Said I talked to him in January of
15 this year.
16 Q. The case was tried in?
?
2,0«_ ^«-t>pOS M Document 38-1 Filed 01/23/12 f>— 37 of 62 PagelD #: 297
37
l you had to register as a sex offender?
2 A. I don't think it did.
3
Q> Presently you have to register as a sex
4 offender. Correct?
5 A. Yes, sir.
6 Q. Correct?
7 A. Yes, sir.
8
Q. You have to register as a sex offender for
9 the rest of your life?
10 A. Yes, sir.
11
Q. And your registration is current?
12 A. Yes, sir,
13 Q. You were reg istered as a sex offender back in
14 2002
15 A. I guess.
16 Q.
Okay. Well, when did you move to Texas?
17 A, I guess in 2001.
18 Q. Okay.
19
A. I got out of jail and came straight to Texas.
20
Q. When you got out of jail and came -- when you
21
came to Texas, did you know because of your conviction
22
you had to register as a sex offender?
23 A. No.
24
Q. How did you find out?
25
From, the Bonham Police Department got ahold of me and
Charla Reamy, CSR, TCRR
(903) 583-2863
Case 4:06-cv-00204-RC-A' Document 38-1 Filed 01/23/12 P -> 38 of 62 PagelD #: 298
38
1
told me I had to come in, and that's how it all
2 started here.
3
Q. He told you that you had to come in. Do you
4 remember when that happened?
5 A. No.
6
Q. All right. Do you know if -- do you know if,
7
now, someone goes to look you up on the computer on
8
the internet, they'll find you registered as a sex
9 offender?
10 A. Yes.
11
Q. Okay. At the time of the trial, could
12
someone have looked you up on the computer?
13 A. I don't know.
14 Q. Okay.
15
A. I'm sure they could if they was looking for
16 New York, I guess.
17
MR. MOSS: Pass the witness.
REDIRECT EXAMINATION
18
19 BY MR. HAYNES:
20
Q. Just a couple more questions, Mr. Barnett.
21
Do you -- you've been asked about this before.
22
During the trial in March of 2002, Mr. Anderson's
23
lawyer asked you about what your problems were in New
24 York. Right?
25 A. I think so.
Charla Reamy, CSR, TCRR
(903) 583-2863
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3 9
1 Q-
And he asked you if you had been convicted of
2 sexual
assault in New York and you said you hadn't.
3 Right?
4 A.
I think he asked me if I was convicted of
5 rape and I said no.
6 Q.
All right. And he asked you also if you had
7
been convicted of sexual assault in New York and you
8 said no to that, too. Right?
9 A.
I don't remember him asking that.
10 Q.
All right. Well, let me see if I can refresh
11
your memory a little bit. Show you right here. It's
12
page 48 of the trial record, and I'm looking at lines
13 four, five, and six. Just read that to yourself and
14 see if that refreshes your memory any.
15 A. I mean, this was years ago.
16 Q. Okay.
17 A
If it says I said it, I guess I said it.
18 Q All right.
19 A I don't know that.
20 Q
You don't remember now. Right?
21 A No.
22 Q
But you have no reason to challenge the
23 record
The man asked you if you had been convicted
24 of sex
ual assault in New York and you said you hadn't
25 been. Right?
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(903) 583-2863
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• 4 0
1 A. Right.
2 Q.
But, really, you had been.
3 A.
I-ve only have a 7th-grade education, so I
4 didn't
understand what you were going after.
5 Q.
Okay. Well, but you knew when you gave that
6 answer
that you hadn't been convicted of sexual
7
assault in New York, that that wasn't really true.
8 A. No, I didn't know.
9 Q. You didn't know?
10 A. No.
Q.
And that's the -- that's what you're saying
11
12 today, you just didn't know?
13 A.
I didn't know, no, sir.
14 Q.
And the same thing, I guess, about when he
15 asked
you if you had been convicted of a felony in New
16 York, you said no to that, too. Right?
17 A
Right, because I didn't know.
18 Q
Okay. Thank you, Mr. Barnett.
19 A Yes, sir.
MR. MOSS: Nothing further, Judge.
20
THE COURT: Okay. How old are you?
21
THE WITNESS: Forty-three, ma'am.
22
THE COURT: How far did you go in school?
23
THE WITNESS: 7th grade.
24
THE COURT: Where did you go to school?
25
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(903) 583-2863
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• • 41
1
THE WITNESS: Sam Rayburn.
2
THE COURT: Here in Fannin County?
3
THE WITNESS: Yes, ma'am.
4
THE COURT: How did you get to New York?
THE WITNESS: Drove a car.
5
6
THE COURT: Why?
THE WITNESS: I was married to a woman
7
8
that was here that was abusive and busted my
9
windshield out and called me 60 times at my work and
10
the police wouldn't do anything, and I just left.
11
THE COURT: So, why did you go to New
12 York?
13
THE WITNESS: Met a woman over there.
14
THE COURT: Was that the same person that
15 you got --
THE WITNESS: No, ma'am.
16
17
THE COURT: -- in trouble about?
THE WITNESS: No, ma'am.
18
THE COURT: Have you gotten more
19
20 education since then?
THE WITNESS: No, ma'am.
21
22
THE COURT: Why did you not finish your
23 schooling?
24
THE WITNESS: I was raised up -- I left
25
home when I was 12. Went to work when I was 12.
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(903) 583-2863
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42
l
THE COURT: Doing what?
2
THE WITNESS: Mowing the lawns for a guy
3 named Johnny Terry.
4
THE COURT: So, where did you live?
5
THE WITNESS: In a barn.
THE COURT: Why didn't your parents
6
7 continue to raise you?
8
THE WITNESS: I don't know, ma'am. I
9
don't know. They just couldn't do it, I guess. I've
10
got four -- five other brothers and one sister.
11
THE COURT: So, what -- they all got
12 raised by your parents?
13
THE WITNESS: Three of them did and three
14
of us took out on our own. My one brother, he went to
15 the army and served in Iraq.
16
THE COURT: Do you have any other
17 criminal convictions?
THE WITNESS: Felonies, no, ma'am.
18
19
Little minor assaults and that was it. Pushed a guy
20
and got convicted of that and paid a $300 fine.
THE COURT: Okay. When was that?
21
THE WITNESS: Six months ago.
22
23
THE COURT: Okay. Any other times where
24
you've received probation or a fine or jail time or
25 prison?
Charla Reamy, CSR, TCRR
(903) 583-2863
Case 4:06-cv-00204-RC-A^ Document 38-1 Filed 01/23/12 P ? 43 of 62 PagelD #: 303
4 3
1
THE WITNESS: I've never been to prison.
2
I was on probation back whenever I was 19, 20 years
3
old for a DWI, and that was it.
4
THE COURT: Do you have any mental
5 problems?
THE WITNESS: No, ma'am.
6
7
THE COURT: Do you have -- have you had
8
any depression or anything like that? Any of those
9 type of illnesses?
THE WITNESS: No, ma'am.
10
THE COURT: Okay. Any other questions by
11
12 the State or the defense?
MR. HAYNES: Just a couple, Your Honor.
13
REDIRECT EXAMINATION
14
15 BY MR. HAYNES:
16
Q. Okay. Okay, Mr. Anderson (sic), the Court
17
went into your other legal problems and I just want to
18
ask you about those a little bit.
19
A. You mean Mr. Barnett.
20
q. I'm sorry. Mr. Barnett. I beg your pardon.
21
A. That's okay.
22
q.So, we've already talked about the New York
23
one. You were prosecuted in Fannin County for DWI; is
24 that correct?
25
A. A what? DWI?
Charla Reamy, CSR, TCRR
(903) 583-2863
Case 4:06-cv-00204-RC-A' Document 38-1 Filed 01/23/12 P 3 44 of 62 PagelD #: 304
— — 44
1 Q. Right.
2 A. Yes, yes.
3
Q. And they put you on probation, they filed a
4
motion to revoke your probation --
5
A. A long time ago, yeah.
6
q. -- and that motion was subsequently
7 dismissed.
8
A. Right, yes, sir.
9
Q. And then -- and that was back in 1988.
10 Right?
11
A. Probably, yes. It was a long time ago.
12
Q. And then in 2004, you were prosecuted here in
13
Fannin County for assaulting a guy named Billy Don
14 Patterson. Right?
15 A. Correct.
16
Q. And the sentence for that was -- what was
17
that sentence, do you remember?
18 A. Just a fine.
19
Q. And then there was also an assault that you
20
paid a fine for this year in May of 2010. Right?
21
A. Right. The guy was trying to steal something
22
off my property and I just shut my gate.
23
Q. Thank you, Mr. Barnett. No further
2 4 questions.
25 A. Thank you.
Charla Reamy, CSR, TCRR
(903) 583-2863
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45
l
MR. MOSS: Nothing further, Judge.
2
THE COURT: Sir, you may step down.
3 Thank you
If you will wait outside in the hall,
4 please.
THE WITNESS: Yes.
5
6
MR. HAYNES: Your Honor, we will ask the
7
Court to take judicial notice of a document in the
8
Court's file titled Coversheet for Evidentiary Records
9
that was filed on October 7th, 2010. You'll find
10
there in that document -- in the jacket copies of all
11
of the documents I just showed the defendant.
THE COURT: Any objections?
12
MR. MOSS: No objection, Judge. It's a
13
14
certified document under seal.
MR. HAYNES: We'll call Walter Anderson.
15
16
THE COURT: Okay. Sir, you may testify
17 from there.
THE DEFENDANT: Okay.
18
WALTER ANDERSON,
19
20 having
been first duly sworn, testified as follows:
DIRECT EXAMINATION
21
22 BY MR. HAYNES:
23
Q. What's your name, sir?
24
A. Walter Gerald Anderson.
25 Q.
You are, of course, the very same Walter
Charla Reamy, CSR, TCRR
(903) 583-2863
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. AC
1
Gerald Anderson who was the defendant in this case,
2 are you not?
3 A. Yes, I am.
4 Q.
Mr. Anderson, let me direct your attention
back to
late 2001 and early 2002. When were you
5
6
arrested on this charge?
7 A. June 9, 2 0 01.
8 Q.
All right. Were you able to post your bond?
9 A. No.
10 Q.
So, you remained in jail basically since the
11 date of your arrest in 2001. Right?
12 A. Yes, sir.
13 Q.
When was Mr. Jarvis appointed to you to
14 represent you?
A.
Immediately upon arraignment, whenever --
15
16
whatever date that was.
17 Q.
So, he had represented you, then, for eight
18 months
or so maybe, nine months before the case was |
19 tried?
A.
Yes, that's correct.
20
21 Q-
Did you have regular contact.with him?
22 A. Yes, I did.
Q.
You all were -- he was at his office, you
23
24 were irl jail; is that correct?
A. That's correct.
25
Charla Reamy, CSR, TCRR
(903) 583-2863
Case 4:06-cv-00204-RC-A/ Document 38-1 Filed 01/23/12 P ? 47 of 62 PagelD #: 307
47
1
q. You could not leave the jail?
2
A. I could not leave the jail.
3
Q. Did he come to visit you in the jail to talk
4 to you about the case?
5
A. He did when I requested him, yes.
6
q. Between June 2001 when you were arrested and
7
March 2002 when the case went to trial, how many
8
meetings did you have with Mr. Jarvis?
9
A. Outside of the court proceedings, two.
10
Q. All right. And in that same period of time
11
from June 2001 until March 2002, how many times were
12 you in court with him?
13
A. Well, that's hard to say because the first
14
trial was declared a mistrial, and then we started a
15
second trial. So, however many proceedings it took, I
16
mean, to do that. I don't know an exact amount.
17
q. Were there any pretrial hearings before the
18
first trial that ended in a mistrial?
19
A. I want to say yes, but I don't know for sure.
20
Q. Okay. How long did the first trial go before
21
the mistrial was declared?
22
A. We picked a jury, and we were in a pretrial
23
proceeding and the bailiff marched me before the jury
24
in chains, and that's what declared the mistrial.
25
q. That's what caused the mistrial.
Charla Reamy, CSR, TCRR
(903) 583-2863
Case 4:06-cv-00204-RC-A Document 38-1 Filed 01/23/12 P ^ 48 of 62 PagelD #: 308
48
1 A. Right.
2
q. That was only a day -- less than a day.
3 Right?
4 A. Yes.
5
q. And how long after that did you have the
6
trial that took place in March that actually went to a
7 verdict?
8
A. That trial lasted one day outside of picking
9
the jury. So, we picked the jury, and then we had a
10 one-day trial.
11
q. Okay. What I'm wanting to find out is how
12
much time went by between the mistrial of the first
13
case and the beginning off. the
+--uo trial
t-vi»i tnat
that was finished,
14
" A. Not much. I think we had one brief hearing
15
to -- to solidify any pretrial motions like discovery
16
or -- or other things, and -- and that was it.
17
q. All right. So, how long do you figure you
18
had spent with Mr. Jarvis before the trial began in
19
this case on.the 20th of March 2002, total? The two
20
meetings in the jail and all of the rest.
21
A. Not long, because the proceedings,
22
themselves, were - were brief. They were just to,
23
like I say, put on record certain things, and then out
24
the door I went. So, as far as strategy meetings, we
25
didn't really have much time for that. I would say
Charla Reamy, CSR, TCRR
(903) 583-2863
Case 4:06-cv-00204-RC-A^ Document 38-1 Filed 01/23/12 P ^ 49 of 62 PagelD #: 309
49
l
two and that -- it wouldn't be no more than that.
2
Q. Can you tell me how long those meetings were?
3 Can you give me any feel for that?
4
A. It's hard because I remember stressing things
5
to Donnie Jarvis that I wanted him to do that even
6
still didn't get done, but he seemed to know what he
7
was doing, so I left it in his hands. I would
8
probably say maybe an hour all total.
9 Q. Both meetings.
10 A. Combined.
11 Q. Total?
12 A. Combined, yeah.
13
Q. How about letters -- did you guys exchange
14 letters?
15
A. Yeah -- we didn't -- all I ever wrote to him
16
was that I needed to see him, and then I seen him
17 before the proceeding.
18
Q. All right. So, you didn't send him any
19
substantive letters about the case?
20 A. No.
21
Q. Did he send you any substantive letters about
22 the case?
23 A. No.
24
q. Did you guys talk on the phone?
25 A. No.
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(903) 583-2863
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• *n
1
q. Not at all? So, when you went to trial on
2
the 20th of March 2002, had you received the discovery
3
information in the case?
4
A. No, I hadn't.
5
q. And, in particular, had you received any
6
information about the prior criminal history of Darin
7
Ray Barnett, the State's complaining witness?
8
A. No, because had I received that information,
9
I, myself, would have testified and put my criminal
10
record up against his. It would have been an equal
11
playing field, you see.
12
Q. Okay. So, you had no idea of his prior
13 criminal record?
14 A. None.
15
q. As far as your attorney -- as far as you
16
know, your attorney, Mr. Jarvis, had no idea?
17
A. He had none, and I was surprised when he .--
18
when he come up with this information for trial
19
because we had not discussed his prior criminal
20 history at all.
21
Q. Okay. Of course, he said in court that he
22
didn't -- hadn't received the prior criminal history.
23 Right?
24
A. That's true.
25
q. And you never saw it. Right?
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(903) 583-2863
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51
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A. I never seen it.
2
Q. Is there anything else that you want to say
3
to the Court or for the record about this situation
4
about what you knew and what your attorney knew about
5
Mr. Barnett's prior criminal history?
6
A. Only that had I known he had a criminal
7
history, I, myself, would have testified and told the
8
jury that I did not kidnap that man. Yes, I had a
9
gun, but I did not kidnap him. And Donnie Jarvis
10
advised me against it because I had a criminal history
11 and he didn't.
12
Q. Okay. Thank you.
MR. HAYNES: No further questions.
13
CROSS-EXAMINATION
14
15 BY MR. MOSS:
16
q. What things did you stress to Mr. Jarvis that
17 you wanted him to do?
18
A. I wanted him -- in the testimony, Darin
19 Barne
tt and myself, both, said before trial that he
20
stopped for gas, and when he stopped for gas is • is
21
when he came back from the gas station -- from inside
22
the gas station, he told me he had a car. Right then
23
we turned around and went back to the taxicab. If
24
Donnie Jarvis would have went to that place of
25
business, they had video surveillance of him getting
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out of the cab, going in by himself, coming back, and
2
getting in the cab. I don't know if they had -- they
3
had surveillance at the pumps or not, but it would
4
have put a definite time frame on when this happened
5
and we could have judged how long it took him between
6
the time of him selling me a car and actually going to
7
the police station, because he had a cell phone in his
8
lap and he didn't use it. And I contested that he
9
went somewhere else after this alleged kidnapping.
10
q. Okay. So, basically, the facts were, you and
11
your son and a third person -- who was the third
12 person?
13
A. Enrique Garza. He was a friend of my son.
14
Q. Enrique Garza. Y'all get in the cab and you
15 say, Take me to Utah.
16 A. No.
17 Q. Okay.
18
A. No. The boys were running away to Utah and
19
they were in the backseat discussing it. I said, Take
20 me to Paris,.Texas.
21
Q. Okay. Why did you have a gun?
22
A. The boys had a gun. I came to town -- my son
23
called me on the phone and he said, Dad, I've got a
24
gun, I'm running away from home. I told him, Don't
25
move. Well, I went to town and got the gun from him,
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unloaded it. I didn't know he had two other guns.
2
Him and Enrique both had two other guns. So, I put
3
the gun in my pocket, and -- the last time he ran away
4
from home, I got -- I got reamed out by my wife
5
because I let him run away from home. I gave him
6
money and told him, Look -- so, this time, when he ran
7
away from home, I said, All right, I'm going to take
8
you to your mom; you tell her you're running away from
9
home. This way, I don't get into trouble. She was
10
working in Paris, Texas, at the time, which is why we
11 needed the cab.
12
Q. So, Mr. Barnett's central story was, you
13
came in, said, Take me to Utah, I gotta gun. Right?
14
And your story was, no, that wasn't the case, it was
15
just a misunderstanding; I never threatened him with a
16 gun.
17
A. Mr. Barnett testified that I didn't do this
18
right away. He said that I got in the cab and -- and
19
told them that we were going to Paris, Texas. He
20
says, Well, if we're going past Honey Grove, we need
21 gas .
22 Q. Okay.
23
A. This is part of his statement. So, we were
24
going to stop to get gas. When I got in the car, the
25
gun had dug into my hip. Before we even got to the
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gas station, I told him, Listen, I've got this gun;
2
I'm going to set it on the floorboard, it's not even
3
loaded, don't worry about it; I've taken it away from
4
my son. He said, Well, don't worry about it.
5 Q.
Mr. Enrique Garza testified at trial, didn't
6 he?
7 A. Yes, he did.
8
Q. Okay. And was his testimony supportive of
9
your side of the story or supportive of Mr. Barnett's
10 side of the story?
11
A. All he testified to in reality was the fact
12
that he didn't see me point the gun at Darin Barnett
13
and order him to do anything. That's basically all
14
his testimony will reflect.
15 Q. Okay.
MR. MOSS: Nothing further.
16
MR. HAYNES: That's all we have, Your
17
18
Honor. The defendant rests on the hearing.
THE COURT: Anything from the State?
19
MR. MOSS: Nothing from the State, Your
20
21 Honor.
THE COURT: 'Okay. Are the attorneys
22
23
prepared to make their final remarks at this time?
MR. MOSS: Yes, Judge.
24
MR. HAYNES: Yes.
25
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1 THE COURT: Okay. You may proceed,
2 Mr. Haynes
3
MR. HAYNES: Your Honor, we're going to
4
ask the Court to grant relief in this case. It's
5
clear that the credibility of the witness Barnett is
6
critical to the verdict that was attained in this
7
case, and it's" also clear that he deliberately misled
8
the jury about his prior criminal record. And because
9
Mr. Anderson's attorney didn't have the information to
10
effectively cross-examine him, that that was allowed
11
to stand, and if it hadn't, then we can't say beyond a
12
reasonable doubt that the verdict would have been the
13 same .
14
Mr. Anderson has a defense in this case
15
that he was persuaded not to put on because of his
16
:riminal record, and if the true nature of the
prior c]
17
witness Barnett had been shown to the jury, that
18
defense could have been put on. That's resulted in a
19
miscarriage of justice in this case, Your Honor. I
20
understand how hard it is to recommend that a case
21
that's eight years old be reopened. I understand all
22
that. But I know the Court knows that a fair and
23
correct result is more important than the convenience
24
of it, and we're asking, because the evidence supports
25 it, for relief to be granted.
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MR. MOSS: Your Honor, the State would
2 request that the relief as stated in the motion be
3 denied. The defendant has filed a motion for new
4
trial based on newly discovered evidence. He has not
5
shown that that evidence was not available at the time
6 of trial. The defendant was on -- the defense lawyer
7
was on notice that there was criminal history out of
8
the state of New York. He could have investigated
9
that. He failed to do so. He even --he could have
10
--he made a motion to the Court to have the State
11 provide that information. He could have forced the
12 judge to have the State provide that information
13 rather than just make a motion.
14
In addition, as the -- as the defendant's
15
motion is currently presented, it is untimely and the
16
Court doesn't -- actually lacks jurisdiction to grant
17
his request for new trial based on newly discovered
18
evidence because he has filed it some eight years
19
after his conviction in this case when the Court no
20 longer has plenary power over it.
21
The defendant has previously filed a writ
22
of habeas corpus. That writ was -- alleging -- or,
23
raising some similar grounds of ineffectiveness and
24
actual innocence, and the Court in that -- court of
25
criminal appeals, in that case, denied his request
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1
without a hearing; and, as a result, the Court would
2
request -- or, the State would request the Court to
3
deny the defendant's motion for new trial based on
4 those issues.
5
THE COURT: Your understanding of the
6
date when that writ or habeas was raised?
7
MR. MOSS: I believe it was 2004, but I
8
could be -- 2006. The relief was denied without
9
written order by the court of criminal appeals on
10
March 22, 2006, in Case Number WR-61,082 -02 .
THE COURT: Okay. Mr. Haynes, any
11
12
response to the State's procedural point regarding the
13
fact that there's been one bite at the apple, in
14
essence, and that there would have been information
15
about that that makes this request untimely?
16
MR. HAYNES: Well --
17
THE COURT: If taken as a writ as opposed
18
to a motion for new trial, which is untimely.
MR. HAYNES: We've got -- we've got
19
20
procedural problems in this case for sure and no one
21
can back away from that. But the Court took this
22
matter into an evidentiary stance in this case by
23
treating this as a writ, and I think the evidence
24
shows that Mr. Moss's predecessors were not as careful
25
as they should.have been about turning over the prior
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1
criminal record of Mr. Barnett to Mr. Anderson's
2
lawyers. And I'm afraid it shows that Mr. Barnett was
3
actively deceiving the Court in March 2002, and I dare
4
to say this Court here today when he minimized over
5
and over again what his prior criminal record in the
6
State of New York is, and that just creates such an
7
unlevel playing field that, in the interest of equity
8
and fairness, we're asking the Court for relief.
THE DEFENDANT: May I respond to --
9
THE COURT: No.
10
11
MR. HAYNES: Your Honor, I might point
12
out to the Court that there is a federal writ pending
13
for :06-CV-204 in the Eastern District of Texas, and
14
what that Court did was refer the matter to the
15
magistrate, Judge Mazzant, who placed the case -- the
16
federal writ case on a suspended status until the
17
defendant's -- the State remedies had been exhausted,
18
and he's relying on that authority from the federal
19
court directing him to exhaust the State's remedies to
20
come before this Court today.
21
THE COURT: When was -- when did that
22 occur?
23
MR. HAYNES: The case was closed on the
24
13th of July, 2009, and that's when this order was
25
entered. To get you a paper copy of it would require
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me to go online and get you a copy. I could certainly
2
do that, but not today. I can send it in the mail if
3 the Court wants to see it.
4
THE COURT: Anybody have an idea of what
5
the federal court thought was still available?
6
MR. HAYNES: No, I don't. We'd have to
7
-- this is just -- I don't -- Judge, I don't know how
8
-- I guess you're probably pretty familiar with the
9
federal court's electronic-docketing system. They
10
send out these little docket reports, and then a
11
document is associated with it. In order to get the
12
document, you have to go online and download it.
13
That's what has all of the details in it. I've got --
14
if you want to see the docket text, Your Honor, I've
15 got it here.
16
THE COURT: No. I trust your statement,
17
but for them to indicate they thought there was
18
something else that could be exhausted is --
19
MR. HAYNES: They don't specifically say
20
what that is, and, you know, of course, they're not
21
very concerned about the details of State procedure.
22
THE COURT: The Court's position is that
23
-- two things. Procedurally, first this is an
24
out-of-time motion for new trial. Out of an abundance
25
of cause, I allowed for the attorneys to investigate
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l
it on your behalf -- basically your attorney
2
investigate it on your behalf, Mr. Anderson. But it's
3
my opinion that the previous writ would have been the
4
appropriate vehicle to raise this, and you don't get
5
multiple bites at the apple on raising writs. So, I'm
6
going to deny your request -- your requested relief.
7
So, if the attorneys would prepare an
8
order reflecting the fact that, in my opinion, he has
. 9
exhausted his writ request and then, perhaps,
10
Mr. Anderson can use that to refer to the federal
11
authorities to see if they have anything that they
12
have the ability to address. But then -- at least it
13
will be that type of ruling here; and, of course, he's
14
got the court of appeals ruling on the previous
15 matter.
16
MR. HAYNES: Thank you, Your Honor.
17
MR. MOSS: Yes, Your Honor.
18
THE COURT: All right. Gentlemen, if
19
you'll just get an order due date and order status
20 date .
21
MR. MOSS: I will.
THE COURT: I understand you'll be prompt
22
23
about it, but we'll get a date certain where that will
24 come 'in.
25 Mr Anderson, I appreciate you being
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l
here. We will release the bench warrant, so you'll go
2
back, but you'll have a copy of that order coming to
3 you as soon as they get it. Okay?
4
THE DEFENDANT: Sure.
5
THE COURT: All right. Thank you, sir.
6
(End of proceedings.)
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
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62
l THE STATE OF TEXAS )
2 COUNTY OF FANNIN )
3
I, Charla Reamy, Official Court Reporter in and for
4 the 336th District Court of Fannin County, State of
5 Texas, do hereby certify that the above and foregoing
6 contains a true and correct transcription of all
7
portions of evidence and other proceedings requested
8
in writing by counsel for the parties to be included
9 in this volume of the Reporter's Record, in the
10
above-styled and numbered cause, all of which occurred
11 in open court or in chambers and were reported by me.
12
I further certify that this Reporter's Record of
13 the proceedings truly and correctly reflects the
14
exhibits, if any, admitted by the respective parties.
15
I further certify that $279.00 is the cost for this
16 volume of the Reporter's Record and will be paid by
17 Fannin County;
18
WITNESS MY OFFICIAL HAND this the 14th day of
19 November, A.D., 2011.
20
21 Chu/iK
CHARLA REAMY, Texajs/ CSR 63 61
22
Expiration Date: 12-31-12
Official Court Reporter,
336th District Court
23
Fannin County, Texas
24
Bonham, Texas 75418
(903) 583-2863
25
Charla Reamy, CSR, TCRR
(903) 583-28 6 3
Scanned Dec 14, 2010
CAUSE NO. 20118
STATE OF TEXAS § IN THE 336* JUDICIAL
§ DISTRICT COUH?
WALTER GERALD ANDERSON FANNIN COUNTY,
ORDER
After consideration of the evidence presented, and the arguments of the Defendant's motion /*
for new trial based on newly discovered evidence is denied. Further the court finds that based on the
same evidence the Defendant has exhausted all potential remedies available to him through Texas
Law.
^Tf\A^
Judge of the 33L^ ^Jl-eLtu'euQ. &i;$4-
Court of •r&M.i^.ily County, Texas
J" 31
IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
Cause No. 20118
Ex-Parte
WALTER G. ANDERSON
Petitionfor leaveto file Out-of-time Petitionfor
Discretionary Hearing
RR1EF STATEMENT OF THE CASE
Following ajury trial in the 336th District Court of Fannin County, Texas, petitioner was
convicted of Aggravated Kidnapping and sentenced to 25 years in state prison. The 6th
District Court of Appeals, Texarkana, affirmed this conviction on December 18, 2003.
,JKrit,N.o..J3.k02^^^^
filed due to the neglect of the appointed attorney, Donnie Jarvis, of Sherman Texas to
notify his client, petitioner that the appeal had been affirmed.
The Texas Court of Criminal Appeals has stated that an Appellate Counsel has aduty to
inform the defendant that (1) the Appellate Court affirmed the defendant's conviction and
(2) the defendant has aright to file apro se petition for discretionary review with the
Court ofCriminal Appeals, ex-parte Wilson, 956 S.W. 2d. 25,27 (Tex. Grim. App. 1997)
If counsel fails to perform his duty, the appropriate relief is to allow the defendant to file
an out-of-time petition for Discretionary Review. Ex-parte Jarrett, 891, S.W. 935 (Tex.
Crim. App. 1995)
To assume petitioner has lain dormant all this time and not tried to gain relief from a
miscarriage of justice, or wrongful conviction, or any other term that describes
petitioner's situation would be inerror. Upon learning ofthe 6th District Courts decision
to affirm through the prison law library six months after the fact, petitioner's biggest
concernwas beatingthe one year limitation set by the A.D.E.P.A. The Texas law library
does not provide legal advice, only books. Petitioner carried his claim of innocence
through the Federal Courts and all the way to the gates of the U.S. Supreme Court as a
pro-se litigant. Petitioner's claim remains barred for Procedural Infractions that were a
result of a court appointed attorney who deliberately, with prejudice, failed to present
trial errors that he himself preservedto the record and then tried to manipulatethe system
to hide his actions by not notifying petitionerthat his conviction had been affirmed and
that he had a right to file a P.D.R. in this court.
PRAYER
Thatthis court grant me leave to file an Out-of-time Petition for Discretionary Review to
complete process theFederal Courts demand to overcome a Procedural Barcurrently in
place. Thank you.
SWpJ oJ/W u*'^ °^
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