BARNES, GARY WAYNE Sr.

IN THE TEXAS COURT OF CRIMINAL APPEALS

Gary Wayne Barnes Sr, Appeal from the DallaS

movant, county , Criminal District

vS_ Court Three; ;

Order denying TNA Testing;

THE STATE OF TEXAS
CCA NO. WR_-12,658-18,l9,20 and 21

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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-80-0165303J
F-81-01105-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 court' 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 l3, 2009. The court theld a result hearring on June
8, 2009 and durring the hearing it became apperrant that thur
no fault of the movant the §§tater had tested the "Wrong evidence";

l. 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-l635 was filed

Appeal Page l.

V,\

'/

in the S IFS 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.
I.

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. l 7

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 64;04 as the evidegce 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

-of the findings.

These findings along wch the movants knowledge ii
knowing that he did not commit these offenses presents issues ofv

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 notice.

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. et. 1924 (2013) _where the United states supreme codrt

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 ;LQ movant'
on May 16, 2014 in a un-markedb.no returnable postage legal

envolope, mailed to the prison mail room that has been recorded
as questionable legal mail with no-returable address¢not on
movants mailing list. l '

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 1
Memorandum in Support of the Writ of Habeas Corpus showing that the
actual crime scence evidence has not been presented to the
court. _

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-1635 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 q a miscariage of
justice in the conviction 'of a innocence person where the
actual crime scence evidence has been withheld this court is`

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; l

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 éroi 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 wis-entitle to the
requirments as set of in the statute in requesting DNA test-
ing as authorized by Chapter 64. 01, 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 ekhibited in the
filed report of the SWIFS- lab attached here as Exhibit B,
dated Julyv 24, 2008 showing tha€ the C. Jordan file has the
same file number as the Y. Oviedo file as F+80=01027-J as this

Appeal Page 45

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 szFs tested evidence of SI-016530-J. this_

will now become(exhibit C.)`

Te mwat ns pn£ataitn disourtcknraniandcwgeddane datsquusde
scu;aatheisaes: '

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 FlLING SYSTEM a Question
of what is the filing Date of the evidence in SWIFS file no. 80-P-
1632 and 80-p-1635. `

` 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 of 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.

' l- ` , »v' `~‘r '

EXHIBIT A 5\
soUTHWEsTERN \ l ‘ __,. _
INSTITUTE OF FORENSIC_ §CIENCES
AT DALLAS , _
. Fl\.ED JUL 2 4 2008
Forensic Biology Unit 523?)1;/111:?€;;;;“,;;;?5“% ` '
luly ll, 2008
Investigating Agency: Amy Murphy " Laboratory #: \8013_`2971
. Dallas County District A_ttorney’s Ofiice A€"“°Y-#’ ‘ '~`5_5.89101;"
Appellate Division' _ C““Se #‘ ` FSO-OlOZ7-J
133 N. lndustrial Blvd, LB 19 C°'“Pl“i“a““ Cynthia'lordan
Dallas, TX 75207 ` Defe"da”t’ - Gary Wayne Barnes
» ` ' 0“°““= 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 O'B-GYN/EOR locked cabinet on December 3, 19802
Kl. Vaginal swab in saline
_ ' K2'. Vaginal smear on slide
; K3. y Blood sample from victim
K4. Pubic hair combings -
K5. Pubic hair cuttings
K6. Anal smear on a slide
Submitted by W. R. Bricl ilale
Tara D. Johnson, M S.
Forensic Biologist ll _
Direct Line: 214- 920-5996
Fax: 214- 920- 5813 `
E- mail: tdjollnson@dallascounty. org

cc:‘ Dallas Police Department, Crirnes Against Persons Division-

Analyst Initials;_ l l f U\'}/

Texas DPS Crime Laboratory Service Evidence Record Sheet

- AF LP Laboratory Case Number
03/06/09 -BA\TOX NiB
-CS 1_10 184098 02
DNA QD
1_1'.12 Al\/l - FTl\/l TE " _lResubrnission mAdditiona| Evidence
Date Received _ , , `/\D CC/; l l
Datecomp|etedk M w _ m MC» ©N llllllll|||lllllllll|l|lll|l|l|ll
Section & Analysis by \>NA ~‘)‘,~l » /
Reviewed: Tech: M+l 511le /-\dm: j 539 ?QQ EXHIBIT B
Report l\/lailed: _
Date Completed B: "ln PerSOn
Section & Analysis by
Reviewed: Tech; Adm;
Report l\/lailed: @fW//W%%W%
Date COmp|eted CI James Hamm'@nd
Section & Analysis by
Reviewed: Tech: Adm: .,
Report l\/lai|ed: Received by Pa'fl'lCla Btannorly"/?HLMW /S/¢ng/l[,
D€SCrilOflOnl Properly Sealed 9x12 Yel|ow Enve|ope;

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A`rialyst_ Initials` C_/f§ `

EXHIBIT c

Page 3 Of3 .
- PL#80P2971
Aprii 8, 2009

ADDITIONAL` COMMENTS:

In the event additional analysis is required, please notify the laboratory as soon as possible
' Courtney`Ferreira v
-F,orensic Biologist ll
Direct Line: 214-920-58'41 `

FAX: 214-920-5813_`
E-rnail: cferreira@dallascounty.org

- ccc Amy Murphy, Dallas County District Attorney’s Office, Appellate Division

Analyst lnitials (_/ §

EXHIBIT D

»

3 ` ` . ¢`~' !! .CD
Mar 271 2014 . ' Gary Wayne Barnes ‘ ’~~f~
TDcJ-Io #31881429'1'APR "3 PH 3¢26

1100 FM 655. Ram.s¢§§§f.§",~' in,':~:i.‘_~;[;;(ns

Rosharon . Texa

‘ "LDUTY
77583 '
Gary Fitzsimmons
Diatrict Clerk j
Frank Crowley Cuurts Bldg.
133 N. Riverfront Blvd, LB 12 - 1 \

Dallas Texas 75207 4313

Dear Clerk:
-Enclosed plaese__find for filing with the Criminal District
Court number Three- a MOTION FOR APPOINTHBNT 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;

Reseect£ully Submitted

Cause Numbers F-Bl-llOS, F‘-81-1027 ' i: l l E D

and F-80-16530 20114APR_-3 PH 3:25
Gary Wayne Barnes § IN THE CRIMIN&HK}_W. HHUB
_ FV“ 1 ZERK
VS. § DISTRICT COURT TH' ` TEXAS
f __ _ |\I`DUTY
§ OF DALLAS COUNTY TEXA b
THE STATE OF TEXAS 4 §
§
MOTION FOR THE APPOINTHENT OF AN INVESTIGATOR
TO THE HCNORABLE 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- ¢.
ute of Forecics Science and the office of the Dallas County
Clerks has documents files and imformation of the idates 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.
) I.

In open court on june 8, 2009 the applicant made
ia 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 l.

Barnes 2.

'The applicant was convicted on Feb, 27, 1981 for theo
offense committed on July 4 1980l in the Dallas Police Department
file number #506950-L and f 307064-L for offenses committed July
4, 1980 and the swrFIs lab file numbers o_f # ao-P-lsaz` and
# 80jP- 1635 for the evidence of the offense which was committed

on the date of july 4, 1980., v
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 swrFs liab s 80-1'>-`25-93 and DPD '-file zniimbe`r_ of # 4a2§55-'
L as an extraneous offense being committed prior to and
_before the offense which was committed July 4, 1980,

lThe state presented at trial Extraneous offense and
levidence 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.DPD~‘n'-55`8q `D`L
The filing order ofl both the bPD and SWiFS filing
of the cases before and_after the offense of July 4, 1980 proves
that the lab numbers in # §_Q=e;i._§£and # ao-P-isss are not
the actual evidence of the crime scence and that a records
search shows that this ' ence was _gg grile n at they 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, v2009 and that testing was prefromed by the DPS lab in
number vLlD-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. v

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
,,609 of 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 records-

Iv,,
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 80-P-2784 and 80~P-~2790, that was filed on July
4, 1980. '
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 that, 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 investigator
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 of_ justice the applicant request that the Judge look
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.

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 FM 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 §rocedures 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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in files numbers 80§P-lo32 and 80 -P-1635 was on 'file in the
lab .prior to and before the date of the offense of July 34,
1980. d '

`Themfiles shows that the extraneous in SWIFS files number
80-P-2593 and` DPD file number 482955-L was on file at the
lab before the crime was committed July 4, 1980. and that
there is error in the lower numbers of 80-P~1632 and BO~P-1635
being the evidence of 4a crime that was committed on july as
these are numbers of the Jan-Febuary 1980.

The evidence that has been tested as well as presented
in ,this court as exhibits and in the DNA hearing on june

8,. 2009 is not the evidence of the actual crime scence.

v.
The applicaIt request the appointment of Attorney to

present the issues of the testing the `actual evidence of

'Page 3.

Barnes 4.

the crime scence still on file at the SWIFS lab in the showing
that the applicant is actuall innocence and that the wrong evidenced

has been accepted as the- state's exhibit's in a jury trial

-'and in the chapter 64{02 hearing.

This evidence that can be tested is filed in the
SWIFS files as_ P~80 2784 and P-2790 of July 4, 1980 that can
be tested in showing"€;: the applicant is actual innocence and that
the victims is the actual victim of the offense that occurred
on the date of July 4, 1980., in the process of motioning
the court said attorney can petition this court /for the testing
procedures as should be applied under chapter 64.03, 04.

The applicant requests a review by the court 's determination
as to what evidence vtherein is exculpatory and that the court
appoint Attorney of record , so that a Order can be filed

that a copy of the portion of the DPD and SWIFS files deemed
to be exculpatory be sealed for the future review by the appellate

court when necessary.

Wherefore, Premises Concidered, the applicant prays
that this court Grant this motion for the appointment of counsel

in reviewing this above mentioning in assuring that the applicants

constitiutional rights has been protected;

y Submit;:
' 18%14 u E

Ramsey
Rosharo, Texas 77583

Page 4.

'»

Mar. 18, 2014 ` v b _ Gary Wayne Barne§;éh&&ua

1100 FM 65 ey
Rosharon, T;qE§RHSBBBAH[,:27
f‘,\ r\-._, ,.¢ _
"5?, JZWMHU
off f "’ T "`LERKNS~
‘ "»TEXAS

DEPUIy

Office of the Clerk

Gary Fitzsimmins

Frank Crowley Courts Bldg.
133 N. riverfront LB 12
Dallas Texas 75207- 4313

Dear Clerk;

‘Enclosedt pfease find the applicant motion-for the APPOINT§
MENT OF COUNSEI.,4 to be filed in the CRIMINAL DISTRICT COURT

THREE stamp file. a copy and return to the appliucant;

I'll thank you in advance‘ for

your time and consideration in the request;

Respectfully»Submitted;

_.I

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`. , _ GARLAND cRIME LABORAToRY LID_184098

Information Sheet

Case # LlD- i§)\ii ig § Date: §Z(o 293 Examiner Initials: du Page #
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"`orde_r permitting movant to withdraw as counsel of record in this cause for
the following reasons: ‘ '

v I-~ .
Counsel was appointed on this case'.by Judge Bobby_Francis.

TT ___ ,, 3.___`_ -i 3:_… in - , . ,, _ _. __ v

§ary Wayne Barnes Was sentenced to life in all of his cases. Mr. Barnes v
`has Since asked for and received post-conviction DNA testing in all of these
cases. ’

_ . ‘ ,_ _ III. _ " _

A finding was entered in Cause Numbers F81~O_lOZ7-J, FSI-Ol 105-l and
F 811-025 l S-J , .on June 8, 2009, which stated that had the DNA test results `
been available during the trial of these offenses, it is NOT reasonably `
probable that Barnes would not have been c`onvicted. The test results in

these cause numbers Which did not exclude Barnes as the perpetrator in
these crimes Were entered into the court iile. '

' . 2 IV. - '
l_n Cause Number F80-l6530-J, no male profile was found by testing the
rape kit from the original investigation of the case. Because STR testing
' was utilized in Barnes' case, the judge denied additional Y-STR testing

`i)

v _ - V. -
_ All' testing in this case has been granted and received No other testing
will be done'through Article 64 of the Texas`Code of Criminal'Procedure.

g VI. _ _
The granting of this Motion Will not have a material adverse effect on the
- interests of the defendant as he may file his notice of appeal.'-

- VII.
' Counsel requests that this motion be filed

~l~»;~-~¥--*-~'-v~'--#+-V~m* RE iii rRE Movant pra ys~tne Court'grant thi 511 1011 -1_ 311 11 "'rie"r “” " `jT'_`_`, :'1_..'_'_

that Michelle Moore be released as counsel of record in this cause.

~"~ s~ s 1 ,:.:Re»Spe'@tn-iiysubmitted ' n

WM/f?/)l 111

Mich§,;lle Moore
` Assis ant Public Defender ` v_
w § -' 133 N. lndustrial Blvd., L§ 2
v Dallas, Texas 75207_
(214.) 653-3564
` State Bar No. 14362150
' ATTORNEY.FOR DEFENDANT

CERTlFICATION
l hereby certify to the Court that a true and correct copy of the above and
' foregoing motion has been served on the Assistant District Attorney_of
' Dallas County via inter-office mail on the same date of filing/herewith

l{/Iichelle 'l\v;loore

v._g.\.-`

Onthis £__Z_M day of

ORDER

§§ !1§% f 2009, the Court, havin; considered
the above and foregoing motion find the same is hereby® ’ h

DENIED.

ever

Judge §racie Lewis

Criminal District Court #3'_

Exhibit il w

Cause Number: F81~01027-J r]g C]
Fsi-oiios-J // o
Fsi-ozsis-J
THE sTATE or TEXAS § 1N THE CRIMiNAL
vs. § DISTRICT coURr No. 3
GARY wAYNE BARNEs ` § DALLAS COUNTY, TEXAS

ORDER DENYING DEFENDANT’S REOUEST FOR RETESTING

The Defendant, Gary- Wayne Barnes,. appearing pro se, has filed a request with the
Court to consider a media produced videotape of the_ DNA test taken pursuant to a post-

conviction DNA testing in the above-numbered and styled cause to support his request for
retesting.'

The court, after considering the pleadings of the movant, the requirements of 64.01,
64.03 and 64.04 of the Texas _Code of Criminal Procedure, the record, and the Court’s own
personal experience and knowledge,v concludes that the'movant,'GaW Wayne Barnes, is not

entitled to relief under Chapter 64 of the Code of Criminal Procedure, See TEX. CODE CRIM.
PROC. ANN. Art 64.03.

The Court finds that Defendant’s request fails to meet the requirements of Chapter 64
of the Code of Criminal Procedure in that he has shown no evidence that the test conducted
was faulty, or if it was faulty, that an uncompromised sample Still exists.

movant, Gary Wayne Bames, #08063282 N 2W-2, P.O. Box 660334, Dallas, Texas 75266,
TX 75207`, and to counsel for the State. `

erNEDrhis laird day of /\/N' ,2009

§§ n mr 06 131/vw
GRACIE LEWIs, JUD'GE
cRIMiNAL DISTRICT coU_RT No. 3
DALLAS coUNTY, TEXAS

EXHIBIT J

F81-01027-QJ
Fsi-oiios-QJ

F81-02518-J
THE STATE OF TEXAS § IN CRIMINAL DISTRICT
vs. § COURT NUMBER 3 OF
k GARY WAYNE BARNES § DALLAS COUNTY,`TEXAS

ORDER GRANTING GARY WAYNE BARNES’S MOTION
FOR POST-CONVICTION DNA TESTING

Barnes Was charged with the aggravated rape of Y.O. (cause number F81-01027-
QJ), the aggravated|rape of E.R. (cause number F81-01105-QJ), and burglary of a
habitation with the intent to commit rape and theft (cause number F81-02518-J). A jury
found appellant guilty and assessed a life sentence in all three cases; the jury also
imposed a SI0,000 fine in each case. On August 31, 1982, the Dallas Court of Appeals
affirmed his convictions.

On October 25, 2007, Barnes, through court-appointed counsel, filed a formal -
motion for post-conviction DNA testing under Chapter 64 of the Texas Code of Criminal
Procedure. The State filed a response to Bames’s motion on February 18, 2009,' agreeing
that Barnes had met the statutory requirements for entitlement to post-conviction DNA
testing. Accordingly, the State does not oppose DNA testing of what appear to be
vaginal smears that still exist in connection with these cases. The State also does not
oppose testing, for comparison purposes, of known DNA samples to be obtained from
Barnes and the victims, and any of the consensual sex partners that the victims may have

had in the seventy-two (72) hours prior to the rape. The State does not, however, waive

any arguments regarding the integrity of the evidence to be tested or the interpretation of
any test results under Chapter 64 ora subsequent 11.07 writ.

The Court, after considering the pleadings of both parties, the requirements of
Chapter 64, the record in these cases, and the Court’s own knowledge and experience,
grants Barnes’s unopposed request for DNA testing of the evidence currently located at
the Southwestern Institute of Forensic Sciences (SWIFS). The Court also grants DNA
testing, for comparison purposes, of saliva samples to be obtained from Barnes and the
victims, and any of the consensual sex partners that the victims may have had in the
seventy-two (72) hours prior to the rape.

The Court makes the following findings in support of its rulings:

Existence of Evidence Contaz'ning Biological Material

l. In relation to this case, SWIFS still possesses two slides, which appear to
be vaginal smears taken during the victims’ sexual assault examinations at Parkland
Hospital.

2. The vaginal smears were secured in relation to the offenses that are the
basis of the challenged convictions

3. The evidence appears to be in a condition making DNA testing possible.

4. The evidence was in the State’s possession during the trials of the offenses.
5. The evidence has been subjected to a sufficient chain of custody.
6. Additionally, for comparison purposes, the State will attempt to obtain

known DNA samples from Barnes and the victims, and any of the consensual sex

partners that the victims may have had in the seventy-two (72) hours prior to the rape.

7. Because SWIFS has been unable to confirm the nature of the slides it has
labeled “K2” in each of the victim’s specific laboratory numbers, the slides need to be
examined to determine whether they were taken as part of the internal examinations of
the victims or Whether they contain hair or fiber evidence

8. Accordingly, Barnes has met his burden of demonstrating that evidence
containing biological material still exists in relation to these cases and is in a condition
making DNA testing possible. See TEX. CODE CRIM. PROC. ANN. art. 64.03(a)(1)(A)
(Vernon Supp. 2008).

Identity

9. Identity was and is an issue in these cases. The perpetrator was a stranger
to the victims. Barnes’s defense at trial was misidentification; his wife testified that he
was at home the night of the offenses.

10. Accordingly, Barnes has met his burden of demonstrating that identity was
or is an issue in these cases. See TEX. CODE CRIM. PROC. ANN. art. 64.03(a)(l)(B)
(Vernon Supp. 2008).

Signifl`cance of Exculpato)y Results

ll. Barnes has met his burden of establishing, by a preponderance of the
evidence, that he would not have been convicted if exculpatory results had been obtained
through DNA testing. See TEX. CODE CRIM. PROC. ANN. art. 64.03(a)(2)(A) (Vernon
Supp. 2008). The DNA test results will only be considered exculpatory for purposes of
Chapter 64, however, if (l) testing yields a male DNA profile that matches neither Barnes

nor any male with whom the victims engaged in consensual intercourse in the seventy-

two (72) hours prior to the rape; and (2) testing yields female DNA profiles that match
the victims, thus confirming that the biological evidence tested was indeed collected from
the victims in these cases. Moreover, DNA test results will only be considered
exculpatory if a visual examination concludes that the slides were obtained from internal
examinations of the victims; test results will not be exculpatory if a visual examination
concludes that the slides contain hair or fiber evidence

Administration of Justice

12. Barnes has met his burden of establishing, by a preponderance of the
evidence, that his request for DNA testing is not made to unreasonably delay the
execution of sentence or administration of justice. See TEX. CODE CRIM. PROC. ANN. art.
64.03(a)(2)(B) (Vernon Supp. 2008). Barnes is currently serving his sentences in these
cases.

Choz'ce of Laboratory

13. DNA testing will be conducted by the Texas Department of Public Safety
(DPS). See TEX. CODE CRIM. PROC. ANN. art. 64.03(0)(1) (Vernon Supp. 2008). l

14. The proposed testing could consume the evidence, and both parties have
agreed to this condition.

Based on the above findings, the Court GRANTS Barnes’s request for post-
conviction DNA testing of what appear to be vaginal smears currently in the possession
of SWIFS. The Court further grants DNA testing, for comparison purposes, of known
saliva samples from Barnes and the victims, and any of the consensual sex partners that

the victims may have had in the seventy-two (72) hours prior to the rape.

The Court GRDERS that:

l. Within ten (lO) days of the date this order is entered, this Court shall issue a
bench warrant, transferring Barnes from the lnstitutional Division of the Texas
Department of Criminal Justice to the Dallas County Jail. Upon Barnes’s arrival at the
Dallas County Jail, an agent of the State shall collect a buccal swab, thumbprint, and
photograph

2. An agent of the State shall transfer Barnes’s buccal swab, thumbprint, and
photograph, along with a copy of this order, to the Department of Public Safety
Laboratory, attention: Manuel Valadez, 350 W. I-30, Garland, Texas 75043, telephone
214-861-2000, maintaining a proper chain of custody.

3. Within a reasonable amount of time after this order is entered, an agent of
the State shall attempt to obtain buccal swab DNA samples from the victims in these
cases The State shall also attempt to determine whether the victims -had consensual
intercourse within seventy-two (72) hours of the rape. If so, the State shall attempt to
obtain buccal swabs from those consensual sex partners The victims and their
consensual sexual partners have no legal obligation to provide their DNA samples to the
Stat€.

4. If the State obtains DNA samples from the victims and any consensual sex
partners, an agent of the State shall transfer the samples to the Department of Public
Safety Laboratory, attention: Manuel Valadez, 350 W. I-30, Garland, Texas 75043,

telephone 214-861-2000, maintaining a proper chain of custody.

5. DPS shall, upon receipt, visually inspect the slides to determine whether the
slides were obtained during internal examinations of the victims or if the slides contain
hair or fiber evidence, Upon completion of the visual inspection, DPS shall notify all
parties of it conclusions regarding the nature of the slides.

6. If the slides are confirmed to have been taken from internal examinations of
the victims and do not contain hair or fiber evidence, DPS shall conduct DNA testing of
the slides and reference samples

7. The DNA testing shall be conducted under reasonable conditions designed
to protect the integrity of the evidence and the testing process

8. The DNA testing shall employ a scientific method sufficiently reliable and
relevant to be admissible under Rule 702 of the Texas Rules of Evidence.

9. 'On completion of the DNA testing, the results of the testing and all data
related to the testing required for an evaluation of the test results shall ~be immediately
filed with this Court and copies of the results and data shall be served on the movant, via
his attorney of record, Michelle Moore (Dallas County Public Defender’s Office, 133 N.
Industrial Blvd., LB 2, Dallas, Texas 75207); and on the attorney representing the State,
Amy Sue Melo Murphy (Dallas County District Attorney’s Of`fice, Appellate Division,
133 N. Industrial Blvd., LB 19, Dallas, Texas 75207).

10. The State of Texas shall bear the costs of all testing conducted pursuant to

this order.

THE CLERK IS FURTHER ORDERED to send a copy of this order to:

(1) Department of Public Safety Laboratory, attention: Manuel Valadez,
350 W. I-30, Garland, Texas 75043; `

(2) Amy Sue Melo Murphy, Dallas County District Attorney’s Office,
Appellate Division, 133 N. Industrial Blvd._, LB 19, Dallas, Texas
75207; and

(3) Michelle Moore, Dallas County Public Defender’s Office, 133 N.
Industrial Blvd., LB 2, Dallas, Texas 75207.

4
Signed and entered this l q_lday of F Wil'\ , 2009.

\
».. ) \
§ J\UM!L f\Q/ww
Judge Gracie Lewis`
_` Criminal District Court No. 3
- Dallas County, Texas

` CONCLUSION 7
The movant request that the court consider this appeal of
the findings of the DNA testing in the actual crime scence,
evidence has been withheld, and the evidence of a set of unrelated
offenses has been tested through no fault of the movant;

In the interest of justice 'the movant has shown that he
has been illgeally convicted using falty evidence that has nothing
to do with the offenses committed on July 4 ,1980.

Movants Attachements and* Exhibits in support of the facts
and :;:ias: jurists of reason would find it debateable that the
evidence presented, introduced and exhibited as the states Exhibit's
can support the convictions, Verdicts, Judgements and the sentences
where the movant has a valid claim s of the denial of constututional
rights.

Wherefore Premisesv considered movant prays that this

court grant leave to file an appeal as the movant has shown

that he has been granted DNA Testing but through no fault
of his own the wrong evidence was tested:

The actual crime scence evidence is still on file and

with this being the case and the imformation given in the

court files , records the movant is entitle to a new trial

in violation `of brady V. Maryland, as the actual crime scence

evidence has been withheld;

Respectfully Submitted

Ga¥gy£:¥ne_Bgrnes #318814

TDCJ-ID Ramsey Unit

1100 FM 655.

Rosharon, Texas 77583
Executed on this the 26,day

Of DeC, 2014 \ w aé/ &D/[%

t ‘

CERFIFICATE OF FILING OF SERVICE

I Garyl Wayne Barnes, hereby certify that I file with
the clerk of the Court and‘ serve the following Motion of
Appeal as required by the Texas Code of Criminal Proceedures as
authorized by the Chapter 64.04 for DNA testing in support
of this motion on this the 26 day of Dec. 2014 by placing
the same in the United States mail on this the 26 day of Dec.
2014, `in the prison Unit mail-room box , first class mail

the origional to ;

y Gary Fitzsimmons
District Clerk

Frank Crowley Courts Buldg
133 N. Riverfront Blvd LB 12
Dallas Texas 75207-4314

Gary §§yne Ba nes #318814

TDCJ-ID
1100 FM 655, Ramsey Unit

Rosharon Texas 77583
Executed on this the 26 day of Dec,

2014 QQL M/ a@[}[>

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P.o. Box 12308,CAP1T0L s'rATION, AusrlN, TEXAS 78711
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BARNEs, GARY wAYNE sr. Tri._ s ,j,i<i’2i"-‘:i’(ii@ F'“"‘~"“'” ZPWRl'-`tz",sss-1a

On this day, the application fo::r`,j_.41__`1"j"07' Writ"of’ |;ia'beas Corpus has been received
andpresented to the Court_ »

_ Abel Acosta, C|erk
GARY WAYNE§BARNES SR.

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