!Q/ LSAL“ H>/ ‘/7)»;2¢>/ »;2/ RECE\\!ED \N Dec° 26' 2014, COUFTOFCRWNNALAPPEALS Gary Wayne Barnes ' 4 TDCJ"-ID 313314 JAN()zzuB 1100 FM-655,`Ramsey Rosharon,-Texas 77583 CLERK, ABEL`ACOSTA P.O6 BOX 12308 CAPITIOL STATION Austin, Texas 78711 TF.XAS coURT oF cRIMIN'AL A\f§’el>‘%l¢§ta,(;lerk Re; Wr- 12, 658-181 19, 20 and 21; Dallas`Tr. Ct. No."s F-80-Oi6530~J 'F-81-01027-J F-Sl-OllOS-J Fe81-02518-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 hotion 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: y 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. n This evidence was filed in the crime Lab (6) monthe prior to and before the commission of`the offenses to which movant was comvicted: n 4 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 ’O/\AQ, &W\,Y`\/QQ 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; ; § Order denying TNA Testing: THE sTATE oF TEXAS § § CCA NO. WR_-12,658-18,l9,20 and 21 § .j j 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-Bl-OllOS-J, F-81401027-J and F-81-02518-J request to file an appeal in the ,above numbered causes in the Article 64.04 findings as the courtl 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 $§tate. 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 that1 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_ 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 evide§ce was faulty and not the aagtual 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 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 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. 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 ;LQ 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 addressnnot 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 l 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-l632 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 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 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, OZ,and 034 (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-l632 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. v Clear and convincing evidence is ekhibited in the filed report of the SWIFS -1ab attached here as Exhibit B, dated July. 24, 2008 showing tha€ the C. Jordan file has the same file number as the Y. Oviedo file as F+BO§OlOZ?-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-81501027-J , that is the actual evidece of the file in the SWIFS tested evidence of aY-Ol6530-J. this_ will now become(exhibit C.)' Te mwat has;reznud to ddsourtck£réndouwdjn;eddane datsqpaisthe faccsaaueissss: ' 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 SYSTEMv a Question of what is the filing Date of the evidence in SWIFS file no. BO-P- 1632 and 80-p-1635. ` v ` 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' ` ,`,.~.-,' EXHIBIT A ,t soUTHWESTERN ‘ ' ` .: ,_ INSTITUTE OF FORENSIC_ S_CIENCES ' AT DALLAS n FlLED JuL 214 2008 Forensic Biology Un'it 5230 Medlcal Center Drlve Dallas, Texas 75235 ' July _ll, 2008 Investigating Agency: Amy Murphy “ Laboratory #: - ‘8 01)`29'7 1 -. Dallas County District A_ttorney’s Ofiice Age"°y'~#’ 1 '~'5.5891‘01;` Appellate D`ivision' y C"‘“S° #‘ ` FSO-OlOZ7-J 133 N. lndustrial Blvd, -LB 19 C°’“Pl“i““"“ Cynthia'.lordan Dallas, 'l`X 75207 ' Defe“d““" - Gary Wayne Barnes 1 ` 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: Reccived by B. E. Harwood. from PMH O'B~GYN/EOR locked cabinet on December 3, 1980: Kl. Vaginal swab in saline _ ' K2. Vaginal smear on slide ‘ K3. _ Blood sample from victim K4. Pubic hair combings K_S. Pubic hair cuttings K6. Anal smear on a slide Submitted by W R. Bricker on Deoernber 5 , 1980: K7. ,Blue jeans K8. Bedspread _RESULTS: ` ltem KZ and a slide made from item K7 Were located in this laboratory’s storage areas. Iterns Kl, K3, K4, KS, K6, K7 and KS Were not located in this laboratory’s storage areas Analystlnitials< § X\)\"/ Page 2 of~zZ"l FL# 80P29Vl July ll, 2008_ idc made from item K7 Will remain in laboratory storage until further ' vicki Hau ' Tara»D. Johnson, M.s. Trace Evidence Examiner For_ensic Biolo gist ll Direct Line:,_ 214-920-5948 Direct Line: 214-920-5996 l " Fax: 214-9_20-.5813 Fax: 214-9_29-5813 _ ' E-mail:vhall@dallascounty.org ` ll E-mail:tdjohnson@dallascounty.org cc:( Dallas Police Department, Crirnes Against Persons Division- Analyst Initials;_ z [[ U\}/ Texas DP_S Crime Laboratory Service Evidence Record Sheet Laboratory Case Number L1 D- 184098- 02 b__|Resubmission l_IAdditional Evidence - AF LP 03/06/09-13A\Tox NIB - cs PHoTo DNA QD 11;12 Al\/l - FTM TE Date Received , , _ Date Comp|eted A: b/'.I lp ’O"`/ , . Section & Ana|ysis by `i>r\lA~ ')`(l / Reviewed: Tech: M+l 5/[3 0‘1 Adm: §§ 539 'DQ Report l\/lai|ed: Date Completed B: Section & Analysis by Reviewed: Tech; Adm: Report l\/lai|ed: Date Completed C; Section & Anal_ysls by Revlewed: Tech: Adm: Report l\/lailed: 3 \\@@/ C@N\l 15 @N l|lllllllllllllllllllllllll|llllllll|l|l EXHIBIT B `ln Person garwng °*‘¢/$/ J_ames Hammond Received by Patricla Brannonj§(l[_mi w 5¢;3/£[, Description: / Properly Sealed 9x12 Yellow Envelope; Transfer LOg (for court return from court, at court, bar code unavailable etc.) Date To Frorn ltems\Exhlbits\Cornments Forward Date To: . ltems: _ U.S. l\/lail By ____ ln P_erson l ups _._i _ adam Date "_’Ali i"`lllems-; __`_ U.S. l\/lail » » By __ |n Person - _ .. ' ups , Destruction Date ` l\/lethod Transported by: Wilness Witness ` ‘ g Burning ____ Hand Carry _ Flushing ___ Other: Contractor _ Burning __ Hand Carry ____ F|ushing ____ Other: _l EXcesS Contractor Court Record (Whenever evidence is introduced or othenNise transferred at the courthouse, use the Transfer Log above) Date Wltness T/A Clty CDFO Outcome l\/li|es Hours Notes CaseFile information entered Submlttlng Officer-Agency-' County- -Offense Date-Agency Number LAB/c-zz (Rev. 06/05) l TEXAS DEPARTMENT OF PUBL|¢ SAFE CR|ME LABORATORY SERV|CE . Laboratory Submission Form Agency Case Number F81-01027, F81-01105 F81-02518 Offense AGG RAPE,'AGG RAPE, BURG HAl Date of Offense 07-04-1980 County of Offense Dallas County Date Agency Dallas County D.A. Evidence Rec,d Case Contact Person` Name Amy Murphy Title Asslstant DistrictAttorney A"(j'§r‘§';§ 133 N 1ndustria1131vd., LB19 phone 314.653_3631 pax 21 4_65;1,_3643v c' ,St t E ‘1 z'i,§'_co§ee Da"a~°~ TX 752°7'4399 . 'Addr"§§_l, AsMuRPHY@DALLAscouNTY.oRG - , Suspect Vlctim Name(Last,Flrst Middle) _ Race Sex DOB DL#ISS#I|D# § l:] Barnes, Gary Wayne M B_ 'l 1/23/1954 S|D 02270491 l:l le Omv*( F81-01027 - Agg Rape) l:l IE R-,~»E“.£ F81-01105 - Agg Rape) l:l El R*-qum-ozsw - Burg Hab) Description of Evidence Submitted Number_ Exhibit # of items Descrlptlon of Evidence Exam Requested Portion» of SW|FS FL#08P1542 - buccal """ GaryBames ` 1. 2 1 Swab of Gary Barnes see Ct Order SW|FS item K2- FL#80P1632 Vagina| _ 2' 3 1 _Smear from Victim Y*J* ¥*Om " ' ‘ see Ct Order ..... L. .._... ', ..| _ , _....¢ ._.... ., .._ 4 . - swu=s item 1<2 80P1635 vagina1 ~ ' ` ` 3‘ § 1 Smear from victim E“ R* baum see ct order ll 4. 5. For some non-drug cases, 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, sa|iva, h`air, inked prints, clothing, fabrics, etc.) submitted for comparison? EYes ENo Have any of these exhibits been previously analyzed by a |aboratory'? l:]Yes |ZNo Which ones? ' 1 rf - - v ' - mainstream Assistant DA Amy |\/lurphy - Dallas Co. Appellate Division 133 N. industrial Blvd., l_B 19 Dallas,- Texas 75207 Laboratory Case Number ' Agency Case Number . Offense Date tiD-184098 ' ` F8101027 07/04/80 Suspect(s) b ViCtim(S) ' l Barnes, Gary Wayne _ m Y* a 1. - ' 1 F“,M l R~=, h Offense: Sexual Assault County of'Offense: Dallas (057) Evidence Submitted - ' ln person by James Hamrnond on February 20 2009: 1. Buccal swabs from Gary Barnes ln person by James Hammond on l\/larch 6 2009; 2. Buccal swabs from Gary Barnes 3-1. ltem K2 vaginal smear slide frcm=“~Y*-~(Prewously stained) 3- ? item K2 vaginal smear slide from \'“~”w./! !nc"i alned) 3- -.3 item K2 vaginal smear sl1de iron1 “0~1" insta~ned\ 4. item K2 vaginal smear slide from NR”(Previously stained) Requested Analysis Perform Post- Conviction DNA analysis on the items submitted in accordance to the Court Order F81- 01027- QJ F81 -Ol 105-QJ, F81- 02518-.1 in the Criminal District Court Number 3 of Dallas County, Texas Results of Analysis‘and interpretation Spermatozoa, semen specific constituents Were detected on the two previously stained vaginal smear slides (|tems 3- 1 and 4). Apparent cellular matter Was detected on the two remaining vaginal smear slides (|tems 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 buccal swabs from Gary Barnes were extracted by a method that yields DNA. The vaginal smear slides (|tems 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 epithe|ial cell fraction), and a fraction enriched for DNA from sperm cells (the sperm fraction). DNA typing Was performed on these samples using the po_lymerase chain reaction-(PCR). The following loci were examined: D881179, D21811, ACCREDITED BY THE AMERICAN SOC/ETY OF CR/ME LABORA TORYDIRECTORS- LAB ACCRED/TAT/ON BOARD COURTESY- SERV|CE- PROTECT!ON `- 54 ' ' l Laboratory Case Nu"mber , Agency Case Number Offense Date - l_‘1D-184098 ' ' _, '/ F8101027 07/04/80 ll 078820, CSF1PO, D,3S1358, THO1, D138317, D168539, D281338, D198433, vWA, TPOX, D18851, Amelogenin, 058818, and FGA. - ' - _ '. The partial DNA profile from the.fracti_on of the first vaginal smear slide (ltem _,3-1)' is consistent . q with a mixture from Garyl Barnes and;§§>m¢¢vunl$_nc_)wn___i[i_d,ividual§ Gary Barnes cannot-be excluded.as.`a 11 contributor to the stain at the loci D831179,"_D3S13"5'8, ’THO1,'D13S317, D168539,v D1`934'33,`vWA, v \ " 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" i approximate world population is 6.5 billion. The partial DNA profile from the epithelia| cell fraction of the first vaginal smear slide (ltem 3-1) is consistent with some unknown fema|e. _ » '- The partial_DNA profile from the.action of the second vaginal smear_slide (ltem 3-2)_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 D881179, D21S11, 078820, DBS1358,'Tl-IO1, D136317, D19S433, 1 vVVA, TPOX, D18851, Amelogenin, D5$818, 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. The partial DNA profile from the epithe|ial cell fraction of the second_vagina| smear slide (ltem 3-2) is consistent with the same unknown fe'male. ` 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‘indivi,dua|. Gary Barnes cannot be excluded as a contributorto the stain at the loci D'3S1358,' D13S317, D198433, and Amelo_genin. At these locil 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. _ , . , The partial DNA profile from the epithe|ial cell fraction of the third vaginal smear slide (ltem 3-3) is consistent with the same unknown femal’e. _ The partial DNA profiles from the sperm and epithe|ial cell fractions of the final vaginal smear slide (ltem 4)'1,is consistent some other female. Gary Barnes is excluded asa cozttz'ibuto="to the sperm and epithe|ial ` 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 from'Gary_Barnes (|tems~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_ P|ease make arrangements to pick it up at your earliest convenience ~. t t|;/ mes 1chols orensic Scientist l Texas DPS Garland Laboratory Page 2 012 ' 05/13/09 ._.mX>m Um?>_../s._._<_mz._. O_H UCW_LO m>_nm._.< . _ rmc Ommm 444 _14014mhowm 4...._D:<_m r>wOD>._.OD< _ _ . >:m_=n_@w 4.,..,WHZQ W@wonon ZUHZOH Code _ . 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Q_»m.»wto» . 4m.N :o`,f :`_N _$3 a m__am_4m8 Lz® zm zm zm _zo zm zm zm zm 4a ma izw zm zm x. x ile zm 44< C._v v . . _ ad was echoes Oo:o_:mmo:wu _$B w_ w=am 4.N_w 4m3n34x€_,m 04 mm_,:mm msa moBm 939 5%<&§_ . _ ., . fy . :mB w_ m=am 4.N_m 4mov.1.c:x:o<<: 4.m3m_m .Nl\ l _UB h m=am 63 + 4m3ummoo:a Ha_m_w soUTHwEsTERN' EXHIBi_'T C INSTITUTE ()F FOREN_SIC SCIENCES AT DALLAS 5230 Medical Center Drive _Dallas, Texas 75235 l_IED JUN . 1 5 200 9 Forensic Biology Unit April 8, 2009- Investigating Agency: Michell€ MO()I'€ Laboratory #: 80P2971 Dallas County Public Defender’s New FL: 081)15 42 Office _ . . ' 133 N. lndustriaisivd., LB.z- ' Age“°y#i 558910L Dallas, Tx 75207 C=wse#= F80-16530-IJ 3 » Complainant: Cynthia-Jordan __ __ __ __ _ ___ _____ __~iie_f€r_u§m§____GHy_B'ar_r_le_S____ ________ _____ offense Sexual Assault EVIDENCE: Received by B. E. Harwood from PMH OB-GYN/EOR locked cabinet on December 3, 1980: KZ. Vaginal smear 1 Retrieved from SWIFS lockbox on September 9, 2008: (08P1542) l. Buccal swab standard from Gary Barnes RESULTS: Portions of the following stored samples Were subjected to a chemical process _to extract deoxyribonucleic acid (DNA): ' ~ ' KZT l. Swab_bing of vaginal smear _ ~ (OSP_1542)'1. Buccal swab standard from Gary Barnes DNA Was extracted from sample K2Tl (swabbing of vaginal smear) in a manner designed to yield two fractions: a fraction enriched for epithelial cell (female) DNA; and a fraction enriched for sperm cell (male) DNA. On occasion, the differential extraction method does not completely separate the two types of DNA due to the relative amounts of the two cell types present in a particular sample. The DNA extracts from the above listed samples Were amplified using the Polymerase Chain Reaction method, and typed for Amelogenin and the following nine (9) Short Tandem Repeat '(STR) systems: D381358, vWA, FGA, DSSl 179, DZISl l, DlSSSl, DSSSIS, D138317,and _ Analyst Initials 2 l 9 EXHIBIT C ‘Page 2 of3 _ FL#80P2971 b April 8, 2009 D78820. Sample (08Pl542) l was amplified and typed for the following four (4) additional STR systems: Dl6SS39, THOl, TPOX, and CSFlPO. Sample K2T1 (swabbing of vaginal smear) Epithelial cell fraction No DNA profile was-obtained from this _fractiori.- Sperrn cell'fraction. Spermatozoa were not detected in this fraction by microscopic examination No DNA profile was obtained from this fraction. T-able 1. DNA Profiles ' ‘ (08P1542)1. Buccal ' ‘_"-‘ .STR'System' ~_ ~'swa'b'from'Ger‘_ ' Barnes Amelogenin XY , .D3$1358 15,16 ` vWA' 15,,17 FGA 21,22 D881179 10,l3 DZlSll 28,30 DlSSSI - 15,16 , DSSSlS 11,1_3 - D138317 11,12 D75820 10,10 D16SS3_9 9~,12 - `THOI ’7,7 TPoX 8,8 CSFlPO 11,12 CONCLUSIONS: <»-'7'1/§5<-: A/€§ DNA "1‘5.57“ KE§ULT§ sHoLo//u@ DNA P/QOF/L€ ,FO,€ §ARV` MEM€§ .`TL)§/ ,¢i P/‘?OF/¢-é_ 340/ue t 1 ri . :/i\//Dz/CM/rrc a w/T¢/ _/'H/_> Inasmuch as no DNA profile was obtained from sample KZTl (swabbing 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: K2Tl and (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 Analys_t_ lnitials` §§ ‘ * (081>1542)1. EXHIBIT c Page 3 of3 1 4 FL#80P2971 April 8, 2009 ADDITIONAL` COMMENTS: ln the event additional analysis is 'required, please notify the laboratory as soon as possible Courtney Ferreira -F.orensic Biologist ll Direct Line: 214-920-58'41 ‘ FAXI v 214-920-58134 E'-mail: cferreira@dallascounty.org - cc: Amy Murphy,- Dallas County District Attorney’s Office, Appellate Division _ Analyst Initials (_/ § EXHIBIT D \ ", 3 » ` ¢'~"11 cg Mar 27, 2014 ' Gary Wayne Barnes ‘ ’*~=~ TDcJ-Io #318814 ZUMAPR ~3 PH 3¢25 1100 tila 655, Ramsél`§.,§§§l",; isa’~',l_~;('s§ts ass i' " 't'§)kAs Rosharon , Texa " ~ - m`l’U¥Y 77583 “ Gary Fitzsimmons Distri¢t Clerk Frank Crowley Cnurts Bldg. 133 N. Riverfront Blvd, LB 12 t Dallas Texas 75207 4313 Dear Clerk: vEnc_losed plaese gfind for filing with the Criminal District Court number Three a MOTION FOR APPOINTMENT OF'INVESTIGTOR, Please file the same with the court and return a filed copy to the applicant; f Thank you_in advance for your consideration in this above mentioned request: Reseectfully Submitted Qsteaalstate§tan% y cause Numbers F-81-1105. F-ai-loz? ~ Fl.',__ED and F-ao-16530 ZUMAPR_'B PH 3= 26 Gary Wayne Barnes § IN THE cglnlN&kH}_W:jHHm§ _ ?VF Il!{RK vS. l § DISTRICT COURT TH TEXAS ' ~ - ‘WPUTY § OF' DALLAS COUNTY TEXA _ THE STATE QF 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-.~, 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. s I_ - In open court on june 8. 2009 the applicant made a 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 1980, in the Dallas Police Department file number #506950-L and # 307064-L for offenses committed July 4, 1980 and the szFIs lab file numbers `o»f -# ao-P-lssz` and # BOjP- 1635 for the evidence of the offense which was committed on the date of july 4, 1980. l 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 sims 4 liab s eo-t-'zs§a and 1)1>1)tilezalm.i'>erA of # 46'29'55-' L as an extraneous offense being committed prior to and >before the offense which was committed July 4. 1980. ~ The 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.D PS$-$SQ% }D`L The filing order of ' both the vmm and swiss filing of the cases before and_after the offense of July 41 1980 proves that the lab inumbers in #_BQ:B:l§§Z_and # 80-P-1635 are not the actual evidence of the crime scence and that a records search shows that this exidence was _gg _file n at the~ 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 Beb. 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. 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 yof the code of Cr_iminal 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 anda 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 BG~P- 2790, that was filed on July 4. 1930. 4 l l 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 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 of' justice the applicant request that the Judge loot 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. l 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 Countlelerks- 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 C:©MG\W)»W%M Page 5. ts tillaidlil , ~)x`~ ¢§]v`~{.° 371 ltd ~ d\< liab E .…GMN...M.. z Wz…aw.,_e(wt.~..rw..ww.m¢.w cas _...r. M..i….t.i…w 11 an< Sw<:m wmn:mm ¢wwmm~s twa . _ Ww~§%%vw?c%m§mmww ll Hwoo mss mmm» wwdmm< , Hou:wno:~ amxwm qqmmw cameweoe newman mwn< mwnnmwaio=m _ manor onoswm< noonan wwmm_ wmmww sww~. _ wa z. ww4. Har.`l8, 2014 Office of the Clerk Gary Fitzsimmins Frank Crowley Courts Bldg. 133 N. riverfront LB 12 Dallas Texas 75207~ 4313 Dear Clerk; 'Enclosed7 please find the applicant ??gg Wayn§$§arne£;éh&§d@ FM Rosharon, Te§u§&g€§§3AH],;27 (‘.\ -~\.,, _ uH¢"~'.` ’motion for the APPOINT§ MENT OF COUNSEL} to be filed in the CRIMINAL DISTRICT COURT THREE stamp filey a copy and return to the appliucant; thank you in advance» for your time and consideration in the reguest; Respectfully-Submitted; w_.___ . . oo~..< som UHM..E~HGP. nwmww own< mwnnmwssosm me=W nnocwm< nocnnm mwm@" www z. ww\oss' Kd- S%\A. . §\\`(,'l<_ q()<)@u\,g; Q\CIN¥Q §“'\'A\\N.>\ - \/L`Q\,\>Ql\ ai’ (QQD)L.- sn@… ~ 0-1 raw 3m;\ /§ez\l/ ets 3_90 /Q,M bath s\i/ v/f/KL€ BARNES LAB REPoRr INFoRMATroN= rean Police Lab case # for au involved; #LrD-18409s RENTERIA Elizabeth (Rape Date 7/4/80) SWIFS Lab # FL80P1635 TH_LS ,SA j rL_ )¢ 'Agency #506950L /aso Num`éz@ Agen¢y case #/ cause # F81-01105 J FEK/ EAZIJES NEW LAB # 08P0918 (Assigned by SWIFS in 2008 when original specimen appeared to be missing from storage) Per Barnes, her number is also 80P2784 z_ AB TESr/Mé 6/12/08 - Lab could NOT find evidence in storage. New Lab # assigned for administrative purposes 2/26/09 K2 Vag Smear located in SWIFS Storage with#’s 80Pl635/F8101105 2/27/09 Smear sent to State Lab (Garland) c/o Manuel Valde'z 3/10/09 Garland Lab logged in slide holder #80P1635(K2) Label: CD K -------------- _(Name redacted but letter K clearly visible as first letter) l/l6/Ol Slide 80Pl635 K2 SBW (probably indi- cates stain used) Shows sperm with tail OVIEDO Yvette (Rape Date 7/4/80) SWIFS Lab #FL 80 P1632 _* Agency # 307064L NEW LAB # 08P09l9 (Assigned by SWIFS in 2008 A m,",:v' Tq 7 5) when original specimen appeared to be missing NOM&E/€ f om stora e Pee aA R~ES r g ) Dates may be in error using original #80P1632 Agency Case/Cause # F81-01027 J Per Barnes, her number is also 80P2790 KZ Vag. Smear (FL#80P1632) 7/17/08 - SWIFS could . NOT locate evidence in storage. New. Lab # assigned #08P0919. /3/17/09 Lab roath K2 smear éab¢>m " W" "§'Z/$`-)‘f \2/27/09 Lab sent smear to Texas State lab (Garland) C/o Manuel Valdez 3/10/09 Garland lab logged in l clear bag & 2 sealed slide holders with 3 slides (#SOP l 632)#1 slide contains sperm with tails; #2 & #3 contain unstained cellular material (Garland converted these 3 slides to 6 slides for test purposes) l ORDAN Cvnthia (Rape Date 12/2/80) SWIFS #FL 80 P297l Cause #F801653O DPD #558910L BARNES, Ggy SWIFS #FL08P1542 (Buccal Swab) 2009 Lab Case # LlD 184098 Case #F8101027 Case # F80 16739 Dism Case #FSO 16740 Dism TEsT/M § 12/3/80: Kl vag. swab K2 vag smear (found in lab on 7/08) K3 blood sample K4 pubic hair combings K5 pubic hair cuttings K6 anal smear on slide Results of testing: Kl - seminal fluid KZ - sperm K3 - blood group K4 & KS - nothing K6 - no sperm K7 - blue jeans - seminal fluid & sperm K8 - bedspread ~ nothing (No longer in lab) 4/8/09 - KZ used to extract DNA (Became KZTI) divided to yield two fractions: female epithelial cells & male sperm cells Results of testing: Epi. Cells: No DNA profile Could be obtained Sperm - No DNA obtained Thus n_o comparisons possible 1/9/81 Ql Blood Sarnple QZSaliva Sample Barnes is Type O, PGM Enzyme Type 2~1 & Secretor of Bld Blood Group O(H) 9/9/08 Buccal Swab (08P1542) Stored in lab 4/8/09 Portion of sample amplified For DNA typing Results: No comparison to Jordan possible because there was no DNA available in` Jordan’s samples KETTERNING Jennen (Rape Date §80) #FL 80 P2593 DPD #482955L /\)o res r/A€r RENTERIA Joe (father of Elizabeth) Case # or SWIFS #FSl-OZSIS Texas Crime Lab Case #LlD-184098 (2009) Cause No. F80-16530-J, F81-01027-J F81-01105-J & F81-02518-J THE STATE OF TEXAS ( lN THE CR|M|NAL VS. '( DlSTRlCT COURT #3 GARY WAYNE BARNES " ( DALLAS COUNTY, TEXAS AFF|DAV|T |N SUPPORT OF MOT|ON FOR DNA TEST|NG | am Gary Wayne Barnes. On February 25, 1981, in Cause Numbers F8l-01027-J and F81-01105-J, l was found guilty of aggravated rape and was sentenced to life in the penitentiary On February 25 1981, in Cause Number F81-02518-J, l was found guilty of burglary of a habitation with the intent to commit rape and was sentenced to life in the penitentiary On February 27, 1981, l was found guilty of aggravated rape in Cause Number F80-16530-J and was sentenced to life in the penitentiary Notices of appeal were filed in these cases on l\/larch 20, 1981. _The appeals were denied, and the mandates were affirmed on November 5, 1982. l state that the following is true and correct: 1. To the best of my knowledge, there was evidence obtained in relation to these cases that consisted of biological material This evidence included,_ but is not limited to. rape kits taken on the victims The evidence was m the possession of the State curing these cases 2. The evidence, to the best of my knowledge, was not subjected to DNA testing or comparison DNA testing with my DNA. The testing not being done was through no fault of my own. 3. The ultimate question in these cases was whether l, Gary Wayne barns, committed the offenses of aggravated rape and burglary of a habitation with the intent to commit rape. There is a reasonable probability that it would show that l did not commit these offenses if DNA forensic testing was done on the biological materia|. 4. l make this request in the interest ofjustice and not to unreasonably delay the execution of sentence or administration of justice. I Gary Wayne Barnes TDCJ-ID 318814 am presently incarcerated in the Texas Department of criminal Justice. Institutional Division at the Ramsey One unit 1100 Fm 655, Rosharon, Texas 77583 and declare under penalty of perjury that the foregoing is true and correct: Executed on this the 31 th Day of March g g”a,$/aal\i 'Fi\;m SLC°» &®Uf 2014. Eirhibit H , F!L§D . 1 varies m 1122 CAUsE No F80131653@1JQE§ 27 J F81- 01105§ hr§i€czii?é£i;ig . . § w TEXAS " -THE_ sTATE oF TEXAS ' . ' § ' - UFME cRIMlNAL vS. ~ 1 . 4 § ' . DISTRICT COURT #3 GARY WAYNE BARNES ' § _ DALLAS coUNTY,TEXAs MOTION TO WITHDRAW AS COUNSEL' l TO. THE HONORABLE _JUDGE OF SAlD COURT: COMES NOW Michelle Moorei,' attorney of record for the Defendant in "":*i§‘i"e""‘st""y’ficd"aerMb'er i1 can ’es anu_moves me Court to enter an- ~ ~W_ -: ::~~»»¥ -¥_ ,i ,L ¢.¢';. "`order permitting movant to withdraw as counsel of record m this cause for the following reasons: ' . '_ I_. Counsel Was appointed on this case:by Judge Bobby Francis. M, . rr ;m w,_;“Q_MMU:H,H;"W Gary Wayne Barnes Was sentenced to life m all of his cases. Mr. Barnes has since asked for and received post-conviction DNA testing in all of these CaS€S. _ ' , Ill. ' - A finding Was entered in Cause Numbers F81-OlOZ7-J, F 81~01 105 -J and F31_0251 8_1, On runs s, 2009, which Stated that had the DNA test resting 1 been available during the trial of these Offenses, it is NOT reasonably probable that Barnes Would not have been convicted. The test results m these cause numbers Which did not exclude Barnes as the perpetrator in these crimes Were entered into the court tile. » . § IV. » l_n Cause Number F80-16530-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 v - V. _ All' testing in this case has been granted and received. iNo other testing _Will be done`through Article 64 of the TeXaS`Code of Criminal'Pr`ocedure. . 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. v11. ' Counsel requests that this motion vbe filed. ¥_~j»-~ ~~‘*--`-’*--'-~~WH RE? 111 ;P E'7 Movant pra ys'the Court grant th1:;1not 11;:5 1111 "der "` * "'”_f_" ____ that Michelle Moore be released as counsel of record 1n this cause. nn 1 _- ~~ R@Sp@aruny Submqu 1111 71 Mich§:lle Moore l \' . ' . Assis ant Public Defender ` ' 4 _' m `~U 7 l 7 m 7 '_ W_'_"_w_w_:_ d l33 N. lnduS'tl‘ial Blvd., LB_ 2 ' 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 /711/1/1 71119 i%lic_helle Moore ¢'\ _ - ORDER On this 17 3d1 day of § g §§ c 2009, the Court, havin_ considered the above and foregoing motion find the same is hereby® ' h |D_ENIED.` §~,`~:;€E~::~*~:~: _'°_, 'f`__ :_", : f`:f '_': 1: _§‘_:_~:::.:<-“,~~‘"4:1@_1§§:, ~U~’~€~:::;'~‘ " ` Judge Gracie Lewis _ ' Criminal District Court #37 Exhibit 1[" w Cause Number: F81-0]027-J q 8 q F81-01105-J /} 0 F81-02518-J THE sTATE or TEXAS § IN THE cRiMiNAL vs. § DISTRICT coURT. 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,' concludes that the'movant,'Gary Wayne Barnes, is not entitled to relief under Chapter 641 of the Code of Criminal Procedure. See TEX. CODE CRlM. 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. testing is hereby DENIED. The Clerk of the Court is directed to send a copy of this order to movant, Gary Wayne Barnes,~#08063282 N 2W-2, P.(). Box 660334, Dallas, Texas 75266, TX 75207`, and to counsel for the State. ' sicNEi)rhis ioU_"‘ day of /\/N ' ,2009 gm h ucc O(M GRAc'iE LEwis, moon cannNAL DISTRICT coURT No. 3 DALLAS coUNTY, TEXAS EXHIBIT J F81-01027-QJ Fsi-oiios-QJ F81-0251'8-J THE STATE OF TEXAS § IN CRIMINAL DISTRICT vs. § COURT NUMBER 3 OF _ GARY WAYNE BARNES § DALLAS COUNTY,`TEXAS ORDER GRAN'I`ING 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 SlO,GOO 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 Barnes’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 or'a subsequent 11.07 wiit. 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: Exz`stence of Evidence Containing Biological Materl`al 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 iri 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 “KZ” 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). Sigm`jicance of Exculpatory 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 (1) 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 riot 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. Choice 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(c)(l) (Vernon Supp. 2008). l4. 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 ORDERS that: l. Within ten (10) days of the date this order is entered, this Court shall issue a bench warrant, transferring Barnes from the Institutional 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 photographl 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 lState 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 State. 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 Office, Appellate Division, 133 N. Industrial Blvd., LB 19, Dallas, 'l`exas 75207). lO. 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: (l) 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. ,i Signed and entered this f q_[day of if FX)'\ , 2009. \ ». j \ § J\w)t i\sww) Judge Gracie Lewis` ,' Criminal District Court No. 3 - Dallas County, Texas ` CONCLUSION _ The movant request that the court consider this appeal of the findings of the DNA testing in the actual crime scence 4 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 ithe 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 ;.:.a;; 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 Premises 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¥¥gd:;ne_Bgrnes #318814 TDCJ-ID Ramsey Unit 1100 FM 655. Rosharon, Texas 77583 Executed on this the 26,day Of Dec, 2014 \ &L §é/ &D/[?A CERFIFICATE OF FILING OF SERVICE I Gary 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 ; , Gary Fitzsimmons District Clerk Frank Crowley Courts Buldg 133 N. Riverfront Blvd LB 12 Dallas Texas 75207-4314 Gary S:yne Ba§nes #318814 TDCJ-ID llOO FM 655, Ramsey Unit Rosharon Texas 77583 Executed on this the 26 day of Dec. 2014 \ bob M/ S\@[}A '~'_5' :’°'":"`._"_.v _5_§:.:`:_ '.."'_':*_.`:'. ‘.‘.'_ "`"" 11 -' OFFICIAL NOTICE FROM COURT OF CRIMINAL APPEALS OF TEXAS _: P O. BOX 12308, CAPITOL S l`ATION, AUSTIN TEXAS 78711 respe- t oFFiciAi_ susm§ss --_--._-; <;"” S”‘ m srArE oi= TEXAS ' 1 , ' -y _ §§ 3 321 MEZWE;:`“E FENALTY FOR W. ` v ;__’ riding 1.»` ml PHNF ao~.';g.ri o 12/5/2014 PRIVATE us:-: ` "’"§ §§55'5511=5 §EQQA 23 BARNES, GARY wAYNE sr 11 N'. ;, 81 13115’27"-':]'(|)D FRO“ 2 WRCiz`, 558 1a On this day, the application for- 11 07 of Habeas Corpus has been received and presented to the Court. _ Abe| Acosta, C|erk g GARY WAYNE;-'.BARNES sR g RAivisEY l uNir_ Tpc#.318814 .,. 1100 FM 655 ‘ '\'\0\‘@ .£’. RosHARoN, TX 77583 5'/3 c . §§ tiawssss. areas ‘*ii'“l'i"`iil'ii""ii'i"ii'i""'iil'i""ii'ii.'ii`iiii"l'|iii'il