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RECENED \N
De¢. 2.6, 2014 COUmc>Fc;R\M\NALAPPEALS cary wayne Barnes
l TDcJ' -ID 3'13814 _
jAN()ZZUE 1100 FM-655,`Ramsey
Rosharon,-Texas 77583
TEX'AS couRT oF cRIMINAL APP - mem
cLERK, ABEL ACOSTA ' AD€\%QU»
P.o. Box 1'2308 .
cAPITIoL STATION'
Austin, Texas 78711 Re; Wr_ 12' 658_+8'
19, 20 and 21;
Dallas Tr. Ct. No."s-
'F-80-016530-J
'F-8l-01027-J
F-Bl-OllOS-J
F#Sl-OZSIB-J
Dear clerk;
Enclosed Please fine the movants NOTICE OF APPEAL pursuant
a Brief with the attachments the ehhibits showing that the
movant requests NOTICE OF APPEAL to the Chapter 64.04`h0tion
for dna testing as required by the Texas Code of Criminal
Procedures, ; in a showing that the movant was Granted DNA
testing by the convicting court; _ `
Through no fault of the Movant the court tested the evidence
of a unrelated set of offenses, evidence that has nothing to
do with the crimes to which the movant was convicted.
This evidence was filed in the crime Lab (6) monthe prior
to and before the commission of`the offenses to which movant
was comvicted; l v
The movant has been impeaded from the ` actual crime
Scence evidence by a court ORDER filed in the Convicting court
on June 25, 2009 by said Judge; This Sealing of the ' files
and records 'has a 'Equaltable Tolling , as such has ‘impeaded'
the filing of the movants Habeas application until these
files was mailed to the movant on May 16, 2014, see habase
application pending page 7.
Dus to the¢nature of the confidential and sealed files
movant request that a copy of this document be mailed to the
Dallas Clerk;
Gary Fitzsimmons
frank crowley court Building LB 12
Dallas Texas 75207-4313 ‘Cwqh § §§XMVV[\QC?
Res ect lly Submitted;
Dec.26, 2014;
IN THE TEXAS COURT OF CRIMINAL APPEALS
Gary Wayne Barnes Sr, Appeal from the Dallas
movant, county , Criminal District
VS. Court Three: z
Order denying TNA Testing;
THE STATE OF TEXAS
CCA NO. WR_-12,658-18,l9,20 and 21
, ,\
l`_*§ "_'.1‘
¢0|€0160|¢¢0?¢09¢05¢0?
NOTICE OF APPEALS
TO THE HONORABLE JUSTICES:
I Gary Wayne Barnes Sr. the Pre SE movant in cause number
of Dallas county convictions in indictments F-80-01653OIJ
F-Bl-OllOS-J, F-81-01027-J and F-81-02518-J request to file
an appeal in the ,above numbered causes in the Article 64.04
findings as the court1 ORDER is signed on the ll,th Day of
Dec. 2014.
The movant files notice of Appeal Pre Texas Code of Criminal
Procedures Chapter 64.04 supported by his contemporaneously
filed Memorandum and applicatant attachements and Exhibits
in support of the Writ of Habeas Corpus presently pending
in the above entitled petition numbers;\
Per Texas Code of Criminal Procedures chapter 64,04 by
use and by reference thereto the materials contained in movant's
attached MOTION FOR DNA TESTING , contemporaneously filed
Memorandum in Sopport of the Writ of Habeas Corpus with movants
Attachements and Exhibits reflects the following;
On Feb. 20 2009, the movant was granted DNA testing and
testing’ was premitted by the DPS ,with the results released
on May 13, 2009. The court hheld a result hearring on.June
8, 2009 and durring the hearing it became apperrant that thur
no fault of the movant the S§tate_ had tested the "Wrong evidence";
1. the actual crime scence evidence was withhheld and
replaced with evidence of an un-related set of offenses;
2. The evidence that was tested is not the actual crime
scence evidence for offenses that was committed on July 4,
1980 as the SWIFS , crime lab files presently shows the evidence
tested in file numbers 80-p-1632 and 80-p-1635 was filed
Appeal Page l.
'\
w
in the SWIFS crime Lab in the Month of Feb 6, 1980 (6) months
prior to and before the date of the commission of the offenses,
being committed. '
_ 1 .
In this case the movant will establish Equatable Tolling
of extraordiniary circumstances justifying the delay in obtaining*
the newly discovered, newly presented evidence in the presentation
of a 'ORDER' of the convicting court/ having all records and
files sealed.
The evidences records and files was Ordered Sealed by
the convicting Court Judge on June 25, 2009 which has worked
to inpead the movant from obtaining the withheld actual crime
scence evidence. _
On June 8, 2009 the movant filed an objection in opeH court
that the court take Judicial Notice- concerning 'the findings
of the results of the chapter 64404 as the evide§ce was faulty
and not the aactual crime scence evidence as the resul§s was con-
tridictory to the sworn testimony and the statements of the
victims that prior to the offenses being committed she had
never had a sexual intercourse with a male or a female§!
The Results in the test results states that the DNA pro-
files of a un-Known Male and Three un-known and un-identified
females profiles which is un-explainable in a case where the
victims sworn statements and trial testimomy are a contridiction
4of the findings.
These findings along whth the movants knowledge in
knowing that he did not commit these offenses. presents issues of-
the evidence is questionable:
II.
On June 8, 2009 at the result finging hearing
a women in the court gave a note to the Bailiff to give to the
movant stating that the evidence was wrong, not the actual
crime scence evidence. This was reflected in the movants Objections
and request for Judicial notices l
The movant, was not allowed to file a Notice of appeal
as the Judge rushed to seal the files as being confidential and
by the same stroke of the pen the Judge approved an order for
Appeal Page 2.
the movant's court appointed attorney to withdraw as the
attorney of records. (see Movants Habeas Corpus application
page 7.)
The movant points to the case in McQuiggins V. Preking'
133 S. ct. 1924 (2013) _where the United States Supreme Court
has held that a claim of actual innocence if proven is a gateway
by which the movant can raise a claim of actual innocence.
In this Appeal the movant can show the exceptional
set of circumstances in the convicting court filed a "ORDER"
to Seal the Files, Records which has 'impeaded the movant from
obtaining the files and the records that was mailed the movant'
on May 16, 2014 in a un-marked,.no returnable postage legal
envolope, mailed to the prison mail room that has been recorded
as questionable legal mail with no-returable addresssnot on
movants mailing list. 1 `
The SWIFS lab files was mailed to the movant, and the
movant did not and has not violated the court order, making
copies of the files, but use the files as movant's Attachements
and Exhibits A thur L'in presenting the files in the movants _
Memorandum in Support of the Writ of Habeas Corpus showing that the
actual crime scence evidence has not been presented to the
court._ 4
The movant has been convicted of offenses that was committed
on July 4, .1980, but the evidence that has been presented to
the `court as states Exhibit 3 and tested by the DPS in file
numbers 80-p-1632 and 80-p-l635 was on file in the SWIFS crime
lab Feb. 6, 1980 (6) months prior to the offenses was committed.
The police report in the Dallas' police Department
files of number #307064-1 is also a ~filing that was filed
in that department in 'the month on feb, 1980 and is not the
case in the same transaction of the offenses committed on July
4, 1980 in the Dallas Police Department filing number of 506950~L
same tranaction .
III.
In the interest of justice in a miscariage of
justice in the' conviction ~of a innocence person where the
actual crime scence evidence has been withheld this court isv
Appeal Page 3.
in the position of a review of the files a review to which
the movant has been impeaded from presenting &from showing
due to the June 25, 2009 court order to seal the files as
.confidential.
The movants Attachements and Exhibits clearly shows
by McQuiggins V. Perkins, clear and convicing evidence that
the actual crime scence has been withheld: 1
In the state not presenting the actual crime scence evidence
at the movants trial has deprived the movant of his constitutional
right to due process and the right to legal sificient evidence
to support the verdicts, judgements and the sentences.
A review of the files in this case will show that the convicting
court has already Granted the movant's Motion for DNA Testing
on Feb. 19, 2009 (see Attachement and Exhibit A thur L and
attached here as Exhibit a) through no égbi of the movant
the state has tested the wromg evidence.
The Judge of the convicting court has stated in the records
that the movant has established that he mis'entitle to the
requirments as set of in the statute in requesting DNA test-
ing as authorized by Chapter 64. Ol, 02,and 03; (a) (2).
The movant can now show 'this court by a review of the‘
filing systems of the Dallas Police Department and the filing
systems of the Southwest Institute of Fresence Science Lab
that the actual crime scence evidence for the offenses that
was commiytted on July 4, 1980 is not the evidence that was
submitted for testing in file numbers 80-p-1632 and 80-p-
1635 tested in DPS file number LlD-184098-2 with the results
of May 13, 2009.
Under the holdings of Brady V. Maryland, the movant
is actually innocence when the actual evidence has been withheld
as the movant has been deprived of his constitutional rights
to the fundmentals of due process.
Clear and convincing evidence is eHhibited in the
filed report of the SWIFS- lab attached here as Exhibit B,
dated July 24, 2008 showing thai the C. Jordan file has the
same file number as the Y. Oviedo file as Fe80501027-J as this
Appeal Page 4.
same number is submitted to the Texas Department of Public
Safety crime lab evidence record sheet 3/6/09 showing the Same
evidence file number of F-81&01027-J , that is the actual evidece
of the file in the SWIFS tested evidence of 31-016530-J. this_
will now become(exhibit C.)
ahs mart has gssamsd to unsmdsarauoammgaridsna usta;psrcsue
wsadtrsmss: v
The movant request an appeal of the above facts and issus
as . the actual crime scence evidence in the above mentioned
files sits at the SWIFS crime lab that proves that not only
was the wrong evidence tested but the wrong evidence was present
-ed at the movants trial, under the clear and convicing standards
no jury in the world would have convicted the movant, if it
had been known that the evidence was the evidence of a crime
that has nothing to do with the offenses to which the applicant
was on trial. `
The evidence is no longer the issue in this case the court only
need to petition the files of the` SWIFS CRIME LAB and make a deter-
manation a request for a AFFIDIVIT OF THE FILING SYSTEM- a Question
of what is the filing Date of the evidence in SWIFS file no. 80-P-
1632 and 80-p-1635s
` A request for a AFFIDIVIT OF THE FILING SYSTEM Of the
Dallas Police Department in the Police report of #307064-L is this
file number for a offenses reported on July 4, 1980; is condict-
ionary of a filed case in file number # 506950-L reported on July
4_ 1980‘ in the same time and place.
The movant make these' requests as the Judge of the
convicting court still has a pending Order that the-files are
sealed as confidential and the movant is proceeding in Pro-
se and is impeaded by such information being intentionally
done when the movant made his objections in open court;
This 'impeadment by court order' is movants request to
the united stated court ofv Appeals for the fifth Circuit in
the application to premit the filing of the seeessive 28 U.S.C.
§ 2254 in requesting equitable tolling due to the impeadment
Of the Court "ORDER to SEAL THE RECORDS.
Appeal Page 5.
\r "1 `
, ExHIBIT A §.\
SOUTHWESTERN ‘ _ ' ` ry _
INSTITUTE OF FORENSIC_ SCIENCES n
AT DALLAS .
_ _ » F\LED Ju\_ 24 2003
Forensic Biology Unit 523;]):/1[1;(;:€;;;:";;;?51'.ivé ' - v
July _11, 2008 __
Investigating Agency: Al-ny Murphy " Laboratory #: ~ 1801)29'7 1
-. Dallas County District Attorney’s Ofiice Age"°¥"#‘ ' "5589101,7`
" Appellate Division _ Ca“‘e #‘ ` F80~01027-J
133 N. lndustrial Blvd, LB 19 C°mP'ai“a““ Cynthia'.lordan
Dallas, TX 75207 ` Defe"da”“ - Gary Wayne Barnes
, ' Offe““’= Sexual Assault
This report is in response to your request for the search of biological and trace evidence in this
laboratory’s evidence storage areas for the purpose of potential post-conviction DNA testing.
EVIDENCE:
Received by B. E. Harwood from PMH OB~GYN/EOR locked cabinet on Deccrnber 3, 1980:
Kl. Vaginal swab in saline
_ ' KZ'. Vaginal smear on slide
1 K3. _ Blood sample from victim
K4. Pubic hair combings -
K5. Pubic hair cuttings
K6. Anal smear on a slide
Submitted by W. R. Bricker on December 5 , 1980:
K7. vBlue jeans
KS. Bedspread
RESULTS.:
` Item K2 and a slide made from item K7 Were located in this laboratory’s storage areas'.
ltems Kl', K3, K4, KS, K6, K7 and K8 Were not located in this laboratory’s storage areas
Analystlnitials< § X\ii’i/
fare given
n
Vicki Hall
Trace Evidence Exarniner ,
Direct Line:,j 214-920-5948
. " Fax: 214-920-.5813
E-ma`il:vhall@dallascounty.org
Page 2 0f,2
FL# 80P29»'/'1
July11,2008_
lide made from item K7 vvill remain in laboratory storage until further
Qm t> Uelw\ncev\
TaraD Johnson, M S.
Forensic Biologist ll v
Direct Line: 214- 920-5996
Fax: 214- 920- 5813 `
E- mail: tdjohnson@dallascounty. org
cc:. Dallas Police Department, Crirnes Against Persons Division»
Analyst Initials;_ § if Ui}/
Texas DPS Crime Laboratory Service Evidence Record Sheet
03/06/09
11;12AM
Date Received
[_P Laboratory Case Number
NIB
L1 D- 184098- 02
QD
TE __]Resubrnission l_\Additional Evidence
3
C@N\i \C~ @N |l|||l\lll|lil|i||li|li||||||i||i|l||
Date Comp|eted A: 5 I(p ’D"] , gm
Section & Analysis by `i>i\]A ~')`(i 1 / -
Reviewed: Tech: M+i 5/[§0‘1 Adm: %5'/[(, 'DQ EXHIBIT B
Report N|ailed; '
Date Comp|eted B: "ln PerSOn
Section & Analysis by
Reviewed: Tech: Adm:
Repo_rt l\/|ai|ed: @DMW%#(W%
Date COmpl€i@d CI v James Hamm'()nd
S`ection & Ana|ysis by
Reviewed: Tech: Adm:
Report l\/|ai|ed:
. .. n t
Received by Patricia Brannont¢/'?{/’M_Miw\’
Description;
Proper|y Sealed 9x12Ye|i
/
Transfer Log (for court, return from court, at court,
ow Enveiope;
bar code unavailable etc.)
Date To From Items\Exhibits\Comments
Forward Date To: . Items:
U.S. |\/\ail By
___, in Person
r____.,___. UFS _A
Raun~iuale ""Aii i_|iiems~;
__ U.S. N|ai| v By
|n Person
- _ . `_- ups
Des`truction Date, ' i\/lethod Transponed by: Wiiness Witness
' ' __ Burning _J Hand Carry
___ Flushing ___ Other:
Contractor
___ Burning __ Hand Carry
__ F|ushing _____ Other:
__] ExceSS Contractor
Court Record (Whenever evidence is introduced or otherwise transferred at the courthouse, use the Transfer Log above)
Date Witness T/A City CDFO Outcome i\/li|es Hours
Notes
CaseFile information entered: Submitting Offic
er-Agency- -County Offense Date- -Agency Number
LAB/c-zz (Rev. 06/05>
\l
s1x
l TEXAS DEPARTMENT OF PUBL|C SAFE'
CR|ME LABORATORY SERV|CE l
Laboratory Submission Form
Agency Case Number F81-01027, F81-01105 F81-02518
offense AG`G RAPE,`AGG RAPE, BuRG HAi_
Date of Offense 07-04-1980
County of Offense Dallas County
Agency l Dallas County D.A. geit§ence Rec,'d
Case Contact Person`
Name Amy Murphy n Tiile Assistant DistrictAttorney
A“§j:§;§ 133N industrial B`ivd., i_e19 phone 214_653_3631 Fax 214_653_3643_
C' ,State Em 'i
zii)'_€ode Da"as' TX 752°7'4399 . Addie§; AsMuRPHY@DAi_LAscouNTY.oRG
Suspect Vlctim Name(Last,FirstMlddle) Race Sex DOB DL#/SS#I|D#
le l:l Barnes, Gary Wayne M B_ 101/23/1954 SID 02270491
[1 El Q”Y*( Fsi-oioz'/ - Agg Rape) -
l:l le R__»E“.‘ F81-o1105 - Agg Rape)
l:l El R*.iq,i=si-ozma - Burg Hab)
Description of Evidence Submitted
Exam Requested
Exhibii# :f"|'t"‘__:$;- Description ovaidence
1' y 2 1 Portion of SWIFS FL#08P1542 - buccal see Ct Order
swab of Gary Baijnes
SW|FS item K2 - FL#80P1632 Vaginal _
2. 3 1 _Smear from Victim Y” Y-*?Om ._ __ ._ . see Ct Order
- ~ - swiFs item K2 - 80P1635 vaginal v E` ll l n ' `
3' § 1 Smear from victim E“ h _ w See ct order
U
4.
5.
6.
For some non-drug c'ases, it may be appropriate to attach a copy of the offense report.
P|ease include brief case synopsis, unusual examination(s) requested, and/or relevant case priority information.
See Court Order
Are known standards (blood, saliva, h`air, inked prints, clothing, fabrics, etc.) submitted for comparison? l:]Yes ®No
Have any of these exhibits been previously analyzed by a |aboratory? l:lYes ENo Whi_ch ones? `
\
TEXAS DEPARTMENT O|\~' PUBL|C SAFETY
DPS GARLAND CR|ME LABORATORY
350 WEST |H 30
GARLAND, TEXAS 75043-5998
Voice 214-861~2190 Fax 214-861-2194
COMMlSSION
LAMADR|:§¢CMORTH n _ May 13, 2009 _ y _ '- _ ALLANB.PoLuNsKY,cHAiR
. , _ f C.TOM CLOWE,'JR.
` . - ~ AnAaRowN
Sewiogv\DN/\ Rep<>rf » a carriersle
Assistant DA Amy l\/lurphy -
Dallas Co. Appe|late Division
133 N. lndustria| Blvd.l LB19
Dallas,- Texas 75207
Laboratory Case Number ` Agency Case Number . Offen_se Date
L--iD-18409_8 ` F8101027 07/04/80
Suspect(s) - Vi_ctim(s) -
Barnes, Gary Wayne _ O” Y* c ’~ ' 7
v - ` l*,» 1
Offense: Sexual Assault
County of_Offense: Dallas (057)
Evidence Submitted - . _
ln person by James Hammond on February 20, 2009:
1. Buccal swabs from Gary Barnes `
ln person by James Hammond on l\/larch 6, 2009: v
2. Buccal s`wabs from Gary Barnes `/: ’ . '
3-1. |fem K2 vaginal smear slide from*sYH;;§-»(Previously stained)
3-2 Item K2 vaginal smear slide from \.'__.~”~(' .'ns+-'iined)
3~3. item K2 vaginal smear slide i`ron~ `“D*{i insta?nedl
4. item K2 vaginal smear slide from MU(Previously stained)
Requested Analysis . v
Perform Post-Conviction DNA analysis on the items submitted in accordance to the Court Order F81`-
01027~QJ, F81-01105-QJ, F81-02518-J in the Criminal District Court Number 3 of Dallas County, Texas.
Results of Analysis'and |nterpretation _ _
Spermatozoa, semen specific constituents were detected on the two previously stained vaginal s"mear_
slides (ltems 3’-1 and 4). Apparent cellular matter was detected on the two remaining vaginal smear
slides (ltems 3-2 and 3-3). No apparent hairs or fibers were detected on the vaginal smear slides.
‘An attempt was made to extract DNA from evidentiary samples relating to this case Both bucca| swabs
from Gary Barnes were extracted by a method that yields DNA. The vaginal smear slides (ltems 3-1, 3- _
2, 3-3, and 4) were extracted using a method designed to yield two fractions: a fraction enriched for DNA »
from non-sperm cells usually associated With the victim (the epithelial cell fraction), and a` fraction
enriched for DNA from sperm cells (the sperm fraction). DNA typing was performed on these samples
using the polymerase chain reaction (PCR). The following loci were examined: 0881179, D21811,
ACCREDITED BY THE AMERICAN SCCIETY OF CRIME LABORA TORY DlRECTORS - LAB ACCREDITA T/ON BOARD
4 ' ' COURTESY - SERV|CE - PROTECTION
»~
.4_"
` l Laboratory Case Nu;mber 4 Agency Case Number Offense Date
- l_`lD-184098 ' ' _. '/ F8101027 07/04/80
D78820, CSF1PO, 01381358, THO1, D138317, D168539, DZS1338, D198433, vWA, TPOX, D18851,
Amelogenin, 058818, and FGA. . ' v v `_
The partial DNA profile from theraction_of the first vaginal smear.s|id_e, (ltem ;3-1) is`___conslstent~__ , _'
' with a mixture from G`a`ry' Barnes an_g:_;._S_:Qm.€.,,l;lj]l_<_nown_individual.` Gary Barnes cannot»`be excluded as a
v contributor to the stain at the loci D881179, D38'13`5'8, TH01, D13$317, 0163539, D1'98433,`vWA, - \
b _ TP_OX, Amelogenin, D58_818, and F_GA. At these loci, the probability of selecting an unrelated person at-
random`who could be a contributor to the sperm fraction of the vaginal smear slide is approximately 1 in
_ 5.679 million for Caucasians, 1.in 6.789 million for Blacks, and `1 in 1`.038 million for Hispanics. The
l approximate world population is 6.5 billion.
The partial DNA profile from the epithelial cell fraction of the first vaginal smear slide (|tem 3-1) is
consistent'with some unknown female
'- The partial_DNA profile from the.action of the second vaginal slme_a¢r_slide (ltérn 3-2)_is consistent
b with a mixture from Gary Barnes and some unknown individual Gary Barnes cannot be excluded as a
contributor to the stain at the l`oci D881179, DZ1S11, D`/SBZ_O`, D381358,‘ THO1, D13S317, D1QS433,
- vWA, TPOX, D18351, Amelogenin, D53818, and FGA. At these loci, the probability of selecting an
unrelated person at random who could be a contributor to the sperm fraction of the vaginal smear slide is
. s approximately 1 in 30.84 million for Caucasians, 1 in 46.15 million for Blacks, and 1 in 7.358 million for-
` Hispanics v .
The partial DNA profile from the epithelial cell fraction of the second_vaginal smear slide (ltem 3-2) is
consistent with the same unknown female _ . -
The partial DNA profile from the sperm fraction of the third vaginal smear slide (ltem 3-3) is consistent
with a mixture from Gary Barnes and some unknown-individual Gary Barnes cannot be excluded as a
contributor to the stain at the loci D3S1358, D13S317, D1QS433, and Amelogenin. At these loci, the_
probability of selecting an unrelated person at random who could be a contributor to the sperm fraction of
the vaginal smear slide is approximately 1 in 92 for Caucasians,'1 in 79 for Blacks, and 1 in 74 for
Hispanics. _ l l
The partial DNA profile from the epithelial cell fraction of the third vaginal smear slide (ltem 3-3) is
consistent with the same unknown female
The partial DNA profiles from the sperm and epithelial cell fractions of the final vaginal smear slide (|tem
4)'.~;is consistent some other female Gary Barnes is excluded asa ccntz‘ibutcrto the sperm and epithelial ‘
cell fractions of the vaginal smear slide
The four vaginal smear slides (ltems 3-1, 3-2, 3-3, and 4) were depleted during analysis The remaining
DNA extracts and the remaining samples of the buccal swabs fro`m'Gar'y_,Barnes (ltems‘1 and 2) will be
stored frozen to preserve the biological constituents
For comparison purposes please submit known specimens from the victims Contact the laboratory for
instructions on the proper collection method for additional evidence ' ’
We are unable to retain this evidence Please make arrangements to pick it up at your earliest convenience
i
J mes lchols
' P’ rensic Scientist
o v _
Texas DPS Garl_and Laboratory
Page 2 of 2 ' 05/13/09
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Inasmuch as no DNA` profile was obtained from sample KZTI (swabbin'g of vaginal smear), no
comparisons or conclusions Will be made regarding this sample
DISPOSITION OF EVIDENCE:
Unused portions of the following samples have been stored, and are available for future testing:
KZTl land (08P1542) l. Unused portions of DNA extracts of the following samples have been
stored, and.are available for future testing: K2Tl (epithelial and sperm cell fractions)` and
* (031>1542)1.
Analys_t Initials` §§ `
ExHIBIT c
Page 3 ors
- FL#80P2971
April 8, 2009
ADDITIONAL` COMMENTS:
In the event additional analysis is 'required, please noti® the laboratory as soon as possible
' Courtney"Ferreira
Forensic Biol_ogist ll _
Direct Line: 214-920-_5841 `
FAXZ n 214-920-5813
E'-mail: cferreira@dallascounty.org
- cc: Amy Murphy, Dallas County District Attorney’s Office, Appellate Division
Analyst Initials §§
\ ".
3 Mar 27, 2014
Gary Fitzaimmons
Dietrict Clerk
Frank Crowley Courts Bldg-
133 N. Riverfront Blvd, LB
Dallas Texas 75207 4313
Dear Clerk:
-Enclosed plaese__find for
EXHIBIT D
' l`~`!i .CD
Gary Wayne Barnes ‘ 1~~:"
TncJ-Io #3183142miAPR~3 PH 3=26
1100 Fn 655, Rams@§§§;¢ez@$§e
nni:€'¥“i&` 4
Rosharon , Te§a `XAS
~ ~ crpurv
77583 "
L
12 1
filing with the Criminal District
Court number Three a MOTION FOR APPOINTHENT OF'INVESTIGTOR,`
Please file the same with the court and return a filed copy
to the applicant: I Thank you in advance for your consideration
in this
above mentioned request:
Reeeect£ully Submitted
Cause Numbers F-81-1105, F>-81-1027 ' ic i ' E D
and F-80-16530 ZUlliAPR‘S PH 3= 26
GarY WaY"e Barnes § IN THE CRI"INAH;¢. -'i.'~-.::J.noiis
` "`iii_‘"i |:?:RK
vS. _ § DISTRICT COURT TH * TEXAS
' _ _ ‘WPUTY
§ OF DALLAS COUNTY TEXA _
THE STATE OF TEXAS _ . §
§
MOTION FOR THE APPOINTMENT OF AN INVESTIGATOR
TO THE HONORABLE JUDGE OF SAID COURT:
Now ~comes- Gary Wayne Barnes, the applicant in the above
entitled and numbered causes a petition in Pro- Se to request
that the court appoint an Investigator where the applicant
has ` requested' the-_appointment of counsel where there are
new facts, newly discovered evidence of the origional filings
systems of the Dallas Police department, Southwestern Institut-~.4
ute of Forecics Science and the office of the Dallas County
Clerks has documents files and imformation of the -dates of
the above mentioned crimes,'police reports , crime file numbers
evidence files and the evidence filing dates for the offenses
to which the applicant has been convicted.
1 I. '
In open court on june 8l 2009 the applicant made
va request 'that the court take "JUDICAL Notice' that the evidence
which was tested was not the proper evidence of the crime
secnce to which the applicant was convicted. The applicant
attempted to point' out that the evidence which was tested at
the texas Department of Public safety No. LlD- 184098, was
not the evidence of the actual :crime scence;
Page 1.
Barnes 2.
The applicant was convicted on Feb, 27, 1981 for the¢
offense committed on July 4 1980, in the Dallas Police Department
file number #SOSQSO-L and #'307064-L for offenses committed July
4, 1980 and the SWIFIS lab file numbers of # 80~P-1632 and
# 80-P- 1635 for the evidence of the offense which was committed
on the date of july 4. 1980. '
This Court in a ORDER GRANTING DNA TESTING Varified
that the evidence was locked in a box science the date of the
offense in a certain chain of coustody.
The State presented at trial Extraneous offenses and evidence
of swiss lab ii 80-1'>-425'93 and 1)1>1) wfile hauser of s 4e29'55~`
L as an extraneous offense being committed prior to and
_before the offense which was committed July 4, 1980.
iThe state presented at trial Extraneous offense and
'evidence of SWIFS lab # 80-80-P-2971 and DPD file number
as an extraneous offense being committed on Dec. '2, l980an
offense that committred after the offense of July 4, 1980.DP¢5‘“'-55`8clm"\'~
The filing order of ` both the n'PD and swiss filing
of the cases before and_after the offense of July 41 1980 proves
that the lab numbers in # ,an_-_e;;@z_ana s ao-P-1635 are not
the actual evidence of the crime scence and that a records
search shows that this ` ence was _gg _filg n at ther SWIFS
lab_p£igr to and before the date to which the July 4. 1980
offense was committed.
II.
The applicant was granted DNA testing on Feb.
20, ,2009 and that testing was prefromed by the DPS lab in
number »LlD-184098 as the filing systems will show that this
is not and can not be the actual crime scence evidence.
Page 2.
Barnes 3.
The filing systems of both the Dallas Police Department
and the files of the Southwestern Institute of Froenics science
labproves that the state has introduced persented and tested
the evidence which is not, was not the evidence of the actual
crime scence- n
III.
The `applicant was convicted in (2) two jury trials where
the State filed it's notice of intent to uses extraneous offenses
and .to present extraneous evidence prusuant to Rules 404 and
__609iof.thre Texas Rules of Evidence and Article 37.07 of the
code of Criminal proceedures.
By the use of this new inrormation that the evidence
has never been presented the ant Jury or to the actual trial
Judge the the applicant has not been given a fair trial and
has been denied due process in a `constitutional meaning of
the actual evidence 'of the crime scence .being presented to
the court and entered upon the recorder
rv_,
The files of both the DPD and SWIFS labs proves
that there is a serious issue of testing the actual evidence
as` this evidence is still on file at the lab in the numbers
filed as ao-p-27a4 and 80~1>-¢2790, that was filed on duly
4, 1930. ' '
This evidence can be tested and this evidence will
prove that the applicant is actusal innocence and that the
victims are the actual victims of the crime to which the applicant`
has been convicted.
Page 3.
Barnes 4,
Applicant request the appointment of INVESTIGATOR in assisting
a review by this court in _determination as to the fact of
the evidence so thatr a Order can be filed that a copy of
the porition of the files of the‘ Dallas police 'Department
and the Southwestern Instutute of Forenics Science Lab be sealed
for the future review of the appellate court when necessary.
Applicant request the appointment of lnvestigator
to preserve and present affidivits to the court of the in Brief
data of the DPD and SWIFS Lab of the filing systems 'that
the correct dates that all evidence was reported and presented
to the lab in accordance 'with the dates of each of the offeenses
was committed as well as the .evidence filed with the lab.
V.
Tha applicant can prove and present the facts
that are related to the issue of the evidence and that the
testing of said evidence proves that the applicant in actually
innocence of the crimes to which he was convicted. In the inter-
trest ofl justice the applicant request that the Judge looku
to the facts look to the filing process of both of the above
mentioned _agencies which shows the the evidence used in the
` convictions was no file in the Lab filing systems prior to and
before the date that the crime was committed. t
Wherefore, premises Considered, the applicant Prays
that this court grant this Motion for the`Appointment of Invest-
igator:
Respectfully Submitted:
Page 4.
Barnes 5.
~ Gary W§;ne Barnes
Pro-Se
#318814 TDCJ-ID
1100 FH 655, Ramsey
Rosharon. Texas 77583
Signed on this the 27. day of 2014
CERTIFICATED OF-SERVICE
A true and correct copy of the above and foregoing document
has been delivered to the office of the Dallas County\Clerks-
officepursuant to the Texas Code of Criminal Procedures on this
the 27 Th day of March 2014by placing the same in the united
States Mail;
Gary Wayne Barnes #318814
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Combined Opinion