Anderson, Walter

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LwUy 4^c, 75*8r/ S^UxU U./)7 dWt" U/04 , C[iy2o^A cjU^A (Xti^^ $e>kiej 1 P^eo S£ ftyv^ 4Ud t^rs 6^v4 ^ /+> Aff?AJ;?e<> v***i t^OX l^^ Gfc^W >M^n ifluj^A T*< 70 7/f s&yaa it** tody fF ^belAcosia,Cteric r Afferx^C & • * CoA^wdy • 0 Pa^O A^peKvc)e.< D 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? Charla Reamy, CSR, TCRR (903) 583-2863 Case 4:06-cv-00204-RC-A'' Document 38-1 Filed 01/23/12 P <216 of 62 PagelD #: 276 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 Case 4:06-cv-00204-RC-A^ Document 38-1 Filed 01/23/12 P ^ 17 of 62 PagelD #: 277 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 Case 4:06-cv-00204-RC-A"~^ Document 38-1 Filed 01/23/12 F -e 18 of 62 PagelD #: 278 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 Case 4:06-cv-00204-RC-Ar' Document 38-1 Filed 01/23/12 P ^ 19 of 62 PagelD #: 279 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 Case 4:06-cv-00204-RC-A^ Document 38-1 Filed 01/23/12 P ^ 20 of 62 PagelD #: 280 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 Case 4:06-cv-00204-RC-Ar' Document 38-1 Filed 01/23/12 P ^e 39 of 62 PagelD #: 299 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? Charla Reamy, CSR, TCRR (903) 583-2863 Case 4:06-cv-00204-RC-A/' Document 38-1 Filed 01/23/12 P - 40 of 62 PagelD #: 300 • 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 Charla Reamy, CSR, TCRR (903) 583-2863 Case 4:06-cv-00204-RC-A' Document 38-1 Filed 01/23/12 P ° 41 of 62 PagelD #: 301 • • 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. Charla Reamy, CSR, TCRR (903) 583-2863 Case 4:06-cv-00204-RC-A^ Document 38-1 Filed 01/23/12 R ? 42 of 62 PagelD #: 302 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 Case 4:06-cv-00204-RC-A^ Document 38-1 Filed 01/23/12 P' -*. 45 of 62 PagelD #: 305 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 Case 4:06-cv-00204-RC-Af Document 38-1 Filed 01/23/12 P ^ 46 of 62 PagelD #: 306 . 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. Charla Reamy, CSR, TCRR (903) 583-2863 Case 4:06-cv-00204-RC-A^ Document 38-1 Filed 01/23/12 P ^ 50 of 62 PagelD #: 310 • *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? Charla Reamy, CSR, TCRR (903) 583-2863 Case 4:06-cv-00204-RC-Ax; Document 38-1 Filed 01/23/12 P * 51 of 62 PagelD #: 311 51 l 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 Charla Reamy, CSR, TCRR (903) 583-2863 Case 4:06-cv-00204-RC-A' Document 38-1 Filed 01/23/12 P ? 52 of 62 PagelD #: 312 52 1 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, Charla Reamy, CSR, TCRR (903) 583-2863 Case 4:06-cv-00204-RC-A' Document 38-1 Filed 01/23/12 P •» 53 of 62 PagelD #: 313 53 l 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 Charla Reamy, CSR, TCRR (903) 583-2863 Case 4:06-cv-00204-RC-A' Document 38-1 Filed 01/23/12 P ^ 54 of 62 PagelD #: 314 54 l 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 Charla Reamy, CSR, TCRR (903) 583-2863 Case 4:06-cv-00204-RC-A' Document 38-1 Filed 01/23/12 P •> 55 of 62 PagelD #: 315 55 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. Charla Reamy, CSR, TCRR (903) 583-2863 Case 4:06-cv-00204-RC-A Document 38-1 Filed 01/23/12 P ^ 56 of 62 PagelD #: 316 56 l 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 Charla Reamy, CSR, TCRR (903) 583-2863 Case 4:06-cv-00204-RC-A Document 38-1 Filed 01/23/12 F - 57 of 62 PagelD #: 317 57 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 Charla Reamy, CSR, TCRR (903) 583-2863 Case 4:06-cv-00204-RC-A Document 38-1 Filed 01/23/12 F *. 58 of 62 PagelD #: 318 58 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 Charla Reamy, CSR, TCRR (903) 583-2863 Case 4:06-cv-00204-RC-A Document 38-1 Filed 01/23/12 P ^ 59 of 62 PagelD #: 319 59 l 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 Charla Reamy, CSR, TCRR (903) 583-2863 Case 4:06-cv-00204-RC-A Document 38-1 Filed 01/23/12 F ^ 60 of 62 PagelD #: 320 60 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 Charla Reamy, CSR, TCRR (903) 583-2863 Case 4:06-cv-00204-RC-A•' Document 38-1 Filed 01/23/12 F - 61 of 62 PagelD #: 321 61 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 Charla Reamy, CSR, TCRR (903) 583-2863 Case 4:06-cv-00204-RC-A " ', Document 38-1 Filed 01/23/12 P i 62 of 62 PagelD #: 322 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*'^ °^ »,,.*< > v » •? 1 ^ iv-fr :;-:^T^ flLW/TfiDCTyiTiK Retail "2 -» ~-< US POSTAGE PAID Origin: 75651 $0.00 Destination: 76711 0 Lb 13 60 Oz Sep 06,16 irWi^iA, -t?^ . - • •£' ^~~' ij",,-*^^,, vvi ' •-£. 4853750651-08 1006 - * v<*^ 7fr?J7 PRIORITY MAIL ®2-Day f? f c- i »j-,, Expected Delivery Day: 09/08/2016 B100 4t j. Srv" USPS TRACKING NUMBER 4 *• »T* -Jr