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;IM'
Jerome Overstreet
APR 22 2015 TDCJ#1599743
3001 S. Emily Dr.
Beeville, TX 78102
Judge Tom Price
AW Acosta,Clerk
Texsas Court of Criminal Appeals April 18, 2015
Tom C. Clark Bldg.
205 W. 14th St.
P.O.Box 12308 Capitol Station
Austin, Tx 78711-2308
Re: Proof o f Actual Innocence
Ex parte Overstreet
Dear Judge Price,
Since this is an ex parte case anyway, I see no harm in contacting you
about it. I was convicted of killing my wife in 2009, a crime I did not
commit. The enclosed motion that I have filed with your court gives a brief
explanation of the situation. I think i t is in the best interest of the
Court to hear this motion.
Sincerely,
14&/W ^wifc^r
IN THE
TEXAS COURT OF
CRIMINAL APPEALS
No. C-213-009750-1092061-A
EX PARTE
JEROME OVERSTREET
MOTION FOR LEAVE TO FILE
APPLICANT'S MOTION TO OBTAIN
UNDENIABLE PROOF OF ACTUAL INNOCENCE
TO THE HONORABLE JUDGES OF THE TEXAS COURT OF CRIMINAL APPEALS:
Comes now Jerome Overstreet, Applicant in this pending Application of
Writ of Habeas Corpus, pursuant to Texas Rules of Appellate Procedure 72.1,
and moves to obtain proof of actual innocence in the above cited cause.
Applicant gives the following reasons for requesting this leave:
I.
Applicant is actually innocent of the crime charged and if granted the
evidence he has sought for so long, Applicant will prove beyond a reasonable
doubt that he is innocent of any wrongdoing; so help me God.
II.
Applicant is so certain that this Court will be convinced of his innocence,
that Applicant is willing to forego any and all other claims made in his writ.
Applicant will prove to this Court beyond a reasonable doubt that he is
innocent by any standard of review. As God is my witness, Applicant does not
make this Faustian bargain lightly.
III.
Applicant has sought this evidence of his innocence for many years and
every attempt that Applicant has made to obtain this evidence has been
thwarted by personal and officials of Tarrant County.
IV.
Applicant now stands at the mercy of this Court and demands justice; so
help me God.
Respectfully submitted,
Jerome Overstreet,
Applicant, Pro se
TDCJ#1599743
McConnell Unit
3001 S. Emily Dr.
Beeville, Tx 78102
IN THE
TEXAS COURT OF
CRIMINAL APPEALS
No. C-213-009750-1092061-A
EX PARTE
JEROME OVERSTREET
ORDER FOR LEAVE TO FILE
This Court hereby GRANTS Motion for Leave to File Applicant's Motion to
Obtain Undeniable Proof of Innocence in this cause.
SINGED AND ENTERED this day of _, 2014.
Judge Presiding
IN THE
TEXAS COURT OF
CRIMINAL APPEALS
No. C-213-009750-1092061-A
EX PARTE
JEROME OVERSTREET
APPLICANT'S MOTION TO OBTAIN
UNDENIABLE PROOF OF ACTUAL INNOCENCE
TO THE HONORABLE JUDGES OF THE TEXAS COURT OF CRIMINAL APPEALS:
Comes Jerome Overstreet, Applicant, in this pending Application of Writ
of Habeas Corpus, moves to obtain proof of actual innocence in the above cited
cause and prays the Court will grant his Applicant's Motion to Obtain Undeniable
Proof of Actual Innocence. Applicant will show the following in support:
I.
Critical evidence, that is undeniable proof of actual innocence in this
Habeas Corpus proceeding remains to be discovered; namely, a complete copy of the
AtcH cellphone record of the victim, Vikky Overstreet, Applicant's wife, account
number 457560559, phone number 316-204-2044, for the period of Nov. 2007. This
cellphone record corroborates Applicant's cellphone record, and proves that the
victim was alive and using her cellphone when Applicant had already returned
home to Wichita, Kansas.
II.
Applicant maintains that his own cellphone record (State Exhibit 74) is
prima facte evidence that he is innocent. Applicant's cellphone record was
presented at trial and proves that Applicant had already returned to Wichita,
Kansas, when he received two phone calls from his wife, who was still in
Tarrant County, Texas. Incredibly, everyone at trial was too addle to check
the phone numbers of the people that had called Applicant to realize that the
victim, Vikky Overstreet, Applicant's wife, had called Applicant, not once,
but twice on Saturday, Nov. 10, when State's theory requires she be dead.
Because, Applicant could not have been in both places at the same time,
Applicant could not have killed his wife, and it is also unlikely that the
victim would use her cellphone after her death.
III.
Vikky Overstreet was found dead in her Tarrant County apartment on
Monday, Nov. 12, 2007 with her cellphone (No. 316-204-2044) only a few feet
from her body. V3,p75. The GPS cell tower locations from the Applicant's cell
phone record prove that Applicant left Tarrant County Friday night, Nov. 9,
2007 and was in Wichita, Kansas by Saturday morning, Nov. 10, 2007.
Applicant's cellphone record shows that he remained in Kansas until Monday,
Nov. 12th when the victim's body was discovered. Applicant's cellphone record
also shows that Applicant received two phone calls (8:38am & 1:30pm) from his
wife, Vikky Overstreet (the victim) on Saturday morning from her 316-204-2044
cellphone after he had returned to Kansas.
A complete copy of the record for Vikky Overstreet's 316-204-2044
cellphone has never been obtained.
IV.
State prosecutor, Alan Levy, subpoenaed a copy of Vikky's 316-204-2044
cellphone record prior to trial, but obtained only a truncated copy of the
phone record, which was truncated at 5:00pm, Friday, Nov. 9, 2007 and does not
reflect the two calls made to Applicant on Saturday morning. Review of the
State's facsimile request to At&t shows that the State requested that the
record not include any information after Friday, Nov. 9th. Because requesting
a partial record is quite unusual, it suggests .that Mr. Levy had knowledge of
the information contained in that record, and that Mr. Levy knew of Applicant's
innocence prior to trial,
Trial defense attorney, Steven G. King, also subpoenaed a copy of
Vikky's 316-204-2044 cellphone record prior to trial. The subpoena was issued
and signed by Deputy Ceasar Rodriguez, but there is no "return" information,
thus indicating that the subpoena was never properly served.
V.
Applicant submitted a motion for subpoena duce tecum with the filing of
his habeas corpus with the trial court, 213th District court of Texas, to
obtain Vikky Overstreet's 316-204-2044 cellphone record for the entire month
of November 2007. The trial court; did not rule on the motion and did not
issue subpoena duces tecum.
Applicant sent a copy of the issued subpoena that was not served to At&t
in an attempt to obtain those records. However, At&t would not honor the out
of date subpoena.
Applicant filed a supplemental brief reiterating the subpoena, however
again the trial court did not rule on the motion or issue the subpoena.
Applicant then requested the court clerk place the motion for subpoena duce
tecum on the docket for disposition by the trial court and provided the court
clerk with a self addressed stamped envelope with which the clerk could send
Applicant a copy of the updated docket. Applicant waited over 60 days, however
the clerk did not respond.
Applicant then submitted an application for Subpoena to the District
Clerk, for her to issue subpoena to obtain Vikky's cellphone record. The
District Clerk filed, the application on Oct. 29, 2014, however, again the
subpoena was not issued.
Ironically, deputy district attorney Patricia Hatley also filed the
State's Proposed Memorandum, Findings of Fact and Conclusions of Law with the
trial court on Oct. 29, 2014, recommending that relief be denied.
VI.
Applicant then filed Writ or Mandamus with the Court of Appeals, Second
District of Texas, against the trial court to compel them to rule on the
Motion for Subpoena Duces Tecum or to issue the Application for Subpoena. The
Court of Appeals informed Applicant that they were not in receipt of either
the filing fee or an In Forma Pauperis documentation, when the In Forma Pauperis
documents had been sent by the Law Library of the McConnell Unit, and the
Court of Appeals returned the Mandamus package. Applicant resubmitted the
Mandamus package, and on April 2, 2015, the court denied relief, with a one
page Memorandum that had two sentences. Ironically, the trial court had
adopted the State's Memorandum, Findings of Fact and Conclusion of Law on
April 1, 2015 (April Fools), just the day before.
VII.
Applicant moves that Applicant's Motion to Obatin Undeniable Proof of
Actual Innocence be granted by this Court, and that a complete and accurate
copy of Vikky Overstreet's 316-204-2044 cellphone record be obtained from
At&t. To this ends, Applicant has attached an Application for* Subpoena.
Vikky's cellphone record will show that she was alive and using her
phone to call many other people other than Applicant. Vikky's cellphone
record is essential for this court to properly determine Applicant's habeas
corpus application.
Because a miscarriage of justice has occurred in this case causing a
citizen who is actually innocent of the crime to be incarcerated, justice
demands that he be given every consideration, and that vital exculpatory
evidence be obtained that unquestioningly establishes his innocence. To the
ends of justice, a proper and just ruling cannot be made without this crucial
evidence.
PRAYER
If Applicant seems to be flippant, he apologizes. Applicant is in fact
quite livid and irate at the treatment he' has received from the officials in
Tarrant County. That the district attorney, the trial court judge,
Applicant's own trial attorney and the members of the Second Court of Appeals
would be so caviler in issues of justice is quite incredible. Applicant looks
^forward to seeing this Honorable Court correct this injustice.
WHEREFORE, PREMISES CONSIDERED, Applicant, Jerome Overstreet, prays this
Court will grant this Applicant's Motion to Obtain Undeniable Proof of Actual
Innocence to resolve the above stated issue.
Respectfully submitted,
Jerome Overstreet,
'Applicant, Pro se
TDCJ#1599743
McConnell Unit
3001 S. Emily Dr.
Beeville, Tx 78102
CERTIFICATE OF SERVICE
I, Jerome Overstreet, Applicant do hereby certify that a true and
correct copy of the foregoing document was mailed to Respondent, the District
Attorney of Tarrant County, Patricia Hatley, 401 W. Belknap, Ft. Worth, Texas
75196 on this day 16th day of April, 2015,
(/j/mw fttjw^Atc/
IN THE
TEXAS COURT OF
CRIMINAL APPEALS
No. C-213-009750-1092061-A
EX PARTE
JEROME OVERSTREET
ORDER
This Court hereby GRANTS Applicant's Motion to Obtain Undeniable Proof
of Innocence and stays the proceedings of this cause until such time that a
complete copy of the victim, Vikky Overstreet's cellphone record (phone// 316-
204-2044, acct.# 457550559) for the month of November 2007 can be obtained.
SINGED AND ENTERED this day of , 2014.
Judge Presiding
IN THE
TEXAS COURT OF
CRIMINAL APPEALS
No. C-213-009750-1092061-A
EX PARTE
JEROME OVERSTREET
APPLICATION FOR SUBPOENA
TO THE CLERK OF THE TEXAS COURT OF CRIMINAL APPEALS:
You will please issue subpoena in accordance with law in the above
numbered and entitled cause for the following named witnesses, whose testimony
is material to the State or the defense.
NAME OF WITNESS VOCATION, ADDRESS AND TELEPHONE NUMBER COUNTY
CUSTODIAN OF RECORDS, At&t National Compliance Center, Attn: Appearance
Coordinator. Per your request, this subpoena will be faxed to 888-938-4717
with a copy of all records of Vikky Overstreet, account #: 457560559, Phone #:
316-204-2044 for the month of November 2007.
THIS WITNESS IS TO PROVIDE THE REQUESTED RECORD TO THE TEXAS COURT OF
CRIMINAL APPEALS, AUSTIN, TEXAS WITHIN t) DAYS OF RECEIPT OF SERVICE.
Issued day of , 2015 by
Signature of person serving subpoena if other than officer of the State.