Anderson, Walter

• Court: Court of Appeals of Texas
• Decided: September 16, 2016
• Docket: PD-0915-16
• Status: Published

Opinion

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CoA^wdy • 0 Pa^O A^peKvc)e.< D LETTER BRIEF TO THE

TEXAS COURT OF CRIMINAL APPEALS

EN BANC

TR.CT.NO. 20118

To the Honorable Judges of the Texas Court of Criminal Appeals. I have been

convicted of a crime I did not do. There is more evidence to support the facts that there

was no crime committed at all. After two trials I was convicted by a prosecutor, Bill Ray

Gant, who was allowed by the State Court to use unethical tactics to create an unfair,

unconstitutional trial.

I come before this, the highest State Court in Texas, to grieve the following: It is

my right, according to the First Amendment to the United States Constitution to have my

grievance heard. The record will reflect the following:

In March of 2002, a one day trial was held where the State Court allowed

Assistant District Attorney Billy Ray Gant to completely side step Discovery and Texas

Rules of Evidence to create a trial so prejudicially unfair as to render it completely

Unconstitutional^111 Amendment right to impartial jury (Fair trial). 14th Amendment Equal Protection,,of law,and Due Process.

In December 2003, the 6th District Court of Criminal Appeals, Texarkana,

affirmed the conviction via a Direct Appeal that attacked none of the trial errors

preserved by trial attorney, Donnie Jarvis Jr. of Sherman, Texas. This attorney was court

appointed for trialandthe Direct Appeal by the convicting court. Attorney for the Direct Appeal has a duty to inform his client of it being affirmed by the Court of Criminal

Appeals, yet he did not. It was a blatant prejudicial act hiding the fact that he deliberately

hid certain facts from the higher court that would have reversed this conviction.

A State Habeas Corpus was filed. The common man's only Writ of Right to

grieve the issues of an unlawful conviction to, first, the convicting court then the Texas

Court of Criminal Appeals, my right to "Petition the Government for Redress of

Grievances" is protected in the United States Constitution Amendment number one,

Article I section 9 of the United States Constitution clearly states, "The privilege of the

writ of Habeas Corpus shall not be suspended." Yet my first Habeas Corpus was

suspended and then rendered ineffective by the convicting court. It was literally removed

from the Appellate process altogether. With no accountability by this court or any other.

Later, after discovering impeachment evidence that was deliberately withheld by the

prosecution during trial, a State Evidentiary hearing was held proving a gross miscarriage

of justice. But I was denied reliefdue to the State Courts determination that the first

Habeas Corpus petitionwas the place to address the issues presented, "No second bite at

the apple." Yet the first Habeas was never heard! Even after this very court ordered

FanninCounty to process this writ, they refused. Until a general denial was issuedby the

very entity of the judicial systemthat railroadedme in trial. No State judge

acknowledged receipt of the writ. NoJState judge addressed the same issues that "Should

have been presented in petitioners original Habeas." In essence, this State Court was

allowed to completely side step any wrongdoing of blatant acts of unethical,

unconstitutional behavior by this very court. (See enclosed documents.) I had no effective representation in trial to protect my rights as a United States

Citizen. The same ineffective attorney was put in place to protect the State Court of

wrongdoing and preserve a conviction that was illegal, prejudicial and unconstitutional. I

had NO effective Direct Appeal. No petition for Discretionary Review and no State

Habeas Corpus. The papers were filled out and filed, but no State Post Conviction

Review to insure conformity in the judicial process that governs our society.

The Federal Courts use this against me to deny me relief. Just like Fannin County

used their own mishandling of the first State Habeas Corpus to deny the second. This is

Texas justice? What is the purpose of this court if not to fix what needs fixing? How

many othershave been subject to this kind of judicial treatment? When will somebody do

something about it?

PRAYER

My hope is that, as a United States Citizenunder two Constitutions that forbid

this kind of treatment, the Texas Constitution and the United States Constitution, this

Honorable Court, who holds Jurisdiction over this matter, will appoint a Court of Inquiry,

in the interest ofjustice, to look and see what I say is true. Ask Questions. Protect my

Rights! Please give me dueprocess! Start withthe trial and askAttorney Donnie Jarvis

Jr. of Sherman, Texas, Why he didn't address Blatant recorded trial errors in the Direct

Appeal? Ask him why he failed to notify me of its being affirmed, robbing meof a

P.D.R. Ask the County Judge why she failed to acknowledge petitioners FirstHabeas

Corpus and why she, (Judge Laurine Blake) ignored an order bythis very court. Ask why I did not get proper protection under the law and due process as prescribed in the

14th Amendment to the United States Constitution.

Recently I filed a motion for Leave to file an Out of Time Petition for

Discretionary Review citing ex-parte Wilson and ex-parte Jarrett, but was denied. There

was no reason given. An Out of Time P.D.R. is proper to rectify attorney error. It would

also allow me to prove everything in this letter brief as it is all a matter of record.

My Direct Appeal and the handling of the first Habeas Corpus is so prejudicial it

is the very definition of Obstruction of Justice. To do nothing is the very definition of

Tyranny. I've been trying to get a review for fifteen (15) years! Just take a look.

PLEASE!

Thank You.

Respectfully Submitted,

Walter G. Anderson #1092654

Eastham Unit, Lovelady, Texas

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IN THE COURT OF CRIMINAL APPEALS OF TEXAS -•---"; ^r WR-61,082-01

WALTER G. ANDERSON, Relator

DISTRICT CLERK OF FANNIN COUNTY, Respondent

ON APPLICATION FOR A WRIT OF MANDAMUS FROM FANNIN COUNTY

Per Curiam.

ORDER

This is an original application for writ ofmandamus. Relator contends that he has sent an

application for writ of habeas corpus to the District Clerk of Fannin County and that more than

35 days have passed without the writ either being filed or forwarded to this Court. There is no

record of the habeas corpus application having been filed in this Court, and no record of a timely

filed Order Designating Issues.

It is this Court's opinion that additional informationis required before a decision can be

ft pp-t ad? v ft t/- Scanned Dec 14, 2010 ;f| reached on the motion for leave to file the instant action. The Respondent, District Clerk of

FanninCounty, is orderedto file withthis Court within thirty days a response by submitting on

the recordsuch habeas corpus application, a copy of a timely filed orderdesignating issuesto be

investigated, see Martin v. Hamlin, 25 S.W.3d 718 (Tex. Crim. App. 2000), orby stating the nature of any applications filed by Relator such that theyarenot filedpursuant to TEX. Code

CRIM. Proc. art. 11.07, § 3, or that no applications by Relator have been filed. This application

r for writ of mandamus is held in abeyance pending compliance with this Qrder. - »

DELIVERED: ( 'March 2, 2005 DO NOT PUBLIS^

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NO.20118-A

THE STATE OF TEXAS IN THE DISTRICT CO

vs. § 336th JUDICIAL DI § WALTER G. ANDERSON § FANNIN COUNTY, TEXAS <>.

THE STATE OF TEXAS ORIGINAL ANSWER ANT> OKNERAL DENIAL

TO THE HONORABLE JUDGE OF SAID COURT:

Comes now, The State ofTexas in the above entitled and numbered cause, and files this its Original Answer and General Denial herein, and in this connection would respectfully show the Court the following:

I.

The State of Texas (hereinafter the "State") denies all and singular, each and every allegation- contained in Applicant's Application for a Writ ofHabeas Corpus Seeking Relief From Final Felony Conviction Under Code ofCriminal Procedure, Article 11.07 and demands strict proof thereof.

H.

Further, the State would show that, as a matter oflaw, there are no controverted, previously unresolved issues offact material to the legality ofthe Applicant's confmement. ™-^*^~—***~"—

WHEREFORE/PREMISES CONSIDERED, the State prays that Applicant take nothing by reason of this Application for Writ ofHabeas Corpus and that it be denied and the State be discharged with its cost.

H3 P<\ i 15 Scanned Dec 14, 2010

^y

chard E.-Glaser County and District Attorney ofFannin County State Bar No. 08000000 101 E. Sam Raybum Drive, Suite 301 Bonham, Texas 75418 Phone (903) 583-7448 Fax (903)583-7682"^"^^ "":~~-•—-_--_:•• Attorney for State ofTexas

CERTIFICATE OF SERVICE

On this the day ofAugust, 2005,1 mailed a true copy of the above Original Answer and General Denial to Walter C. Anderson, Applicant, by regular mail.

m «°1 16 ill

NOTICE THAT WRIT OVERRULED BY OPERATION OF LAW

CAUSE #20118-A •&&•"••'

EX PARTE: > IN THE 336TH JUDICIAL DISTRICT

WALTER GERALD ANDERSON > OF FANNIN COUNTY, TEXAS

CLERK'S CERTIFICATE UNDER ART. 11.07, SEC. 2(c), V.A.C.C.P..

This is to certify that the above numbered and entitled

Petition-for Writ of-Habeas Corpus Poj^Gonvicjtip^Tl .07 -VAfrp-^'y filed in this Court on the J^ day of November, 2004, arid that a

copy of said PeferEIon wast^erved^ upon the Distrjj&fe^Attorney's office on the/7th day of July, 2005; that further, as clerk of this court, 1 hereby^certify LhaL no orders have £>een entered by the trial court within a 35-day limit from the filing of this petition,

and that therefore, pursuant to the provision of Art. 11.07, Sec.

2(c), supra, it appears that the trial court's failure to act

within the time limits as prescribed by statute constitutes a

finding that there are no previously unresolved facts material to

the legality of the applicant's confinement, and therefore, it

would appear that the application for Writ of Habeas Corpus has been overruled by opera£irdn~~of law."

So certified th^s 26th day of August, 2005. NANOTYQI DlsrJfict Clerk

f^cJL^r^rp Clerk

47 Case 4:06-cv-00204-RC-/1" -\ Document 38-1 Filed 01/23/12 r ie 1 of 62 PagelD #: 261

1 REPORTER'S RECORD VOLUME 1 OF 1 2 TRIAL COURT CAUSE NO. 2 0118-B

3 STATE OF TEXAS ) IN THE DISTRICT COURT 4 Plaintiff, ) 5 vs_ ) FANNIN COUNTY, TEXAS . 6 WALTER GERALD ANDERSON ) 7 Defendant. ) 336TH JUDICIAL DISTRICT S

****************** 12

I

13 WRIT OF HABEAS CORPUS

****************** 14

17 |

18 |

20 On the 12th day of November, 2010, the following

21 proceedings came on to be heard in the above-entitled 22 and numbered cause before the Honorable Laurine Blake,

23 Judge Presiding, held in Bonham, Fannin County, Texas: 24 Proceedings reported by stenographic method. 25

Charla Reamy, CSR, TCRR ApQfflilX y (903) 583-2863 M / n^ Case 4:06-cv-00204-RC-/' <> Document 38-1 Filed 01/23/12 n ie 2 of 62 PagelD #: 262

APPEARANCES l

2 Mr. James L. Moss 3 SBOT 24049592 Fannin County Criminal District 4 Attorney's Office 101 East Sam Rayburn Drive 5 Bonham, Texas 75418 (903) 583-7448 6

7 ATTORNEY FOR THE STATE OF TEXAS

8 - AND -

9 Mr. David K. Haynes 10 SBOT 09285500 Attorney at Law 11 2600 W. Eldorado Pkwy. Suite 220 McKinney,-Texas 75070 12 (972) 542-1793

13 ATTORNEY FOR THE DEFENDANT 14

Charla Reamy, CSR, TCRR (903) 583-2863 Case 4:06-cv-00204-RC-/^: \ Document 38-1 Filed 01/23/12 r ie 3 of 62 PagelD#: 263

INDEX l

VOLUME 1 2

3 WRIT OF HABEAS CORPUS

Page Vol 4

5 NOVEMBER 12, 2 010

6 Opening statement by Mr. Haynes 6 1 7 Opening statement by Mr. Moss 8 1 8 DEFENDANT'S WITNESSES Direct Cross

9 Donnie Jarvis- 11,25 20,26 10 Darin Barnett 27,39,44 35 Walter Anderson 46 52

11 Both sides rest and close 54 1 Closing statement by Mr. Haynes 55 1 12 Closing statement by Mr. Moss 56 1 13 Court 's Ruling 59 1 14 Court Reporter's Certificate 62 1 15

2 2

25 •Charla Reamy, CSR, TCRR (903) 583-2863 Case 4:06-cv-00204-RC-A' ^ Document 38-1 Filed 01/23/12 r qe 4 of 62 PagelD#: 264

l EXHIBIT INDEX

2 (None.)

Charla Reamy, CSR, TCRR (903) 583-2863 Case 4:06-cv-00204-RC-/^ \ Document 38-1 Filed 01/23/12 ^ ie 5 of 62 PagelD #: 265

PROCEEDINGS l

2 THE COURT: We're on the record in the

3 State of Texas versus Walter Anderson, Cause Number

4 20118-B. And, sir, you're Walter Anderson?

5 THE DEFENDANT: Yes, ma'am.

6 THE COURT: Let's have you stand and

7 we'll have you be sworn in. If you'll stand and raise 8 your right hand.

9 (The Defendant was sworn by the Court.)

10 THE COURT: Okay. You may be seated.

11 Okay. Do we have any witnesses here that the parties 12 would like to have sworn?

13 MR. MOSS: Yes, Judge.

14 MR. HAYNES: Mr. Jarvis, Judge.

15 THE COURT: Okay. We'll have each of you

16 raise your right hand.

17 (The witnesses were sworn by the Court.) 18 THE COURT: Okay. If you'll state your

19 name, please.

20 MR. BARNETT: Gary Barnett.

21 THE COURT: Say the last one.

22 MR. BARNETT: Barnett.

23 THE COURT: Can you spell --

24 MR. BARNETT: B-a-r-n-e-t-t.

25 THE COURT: Thank you, sir.

Charla Reamy, CSR, TCRR (903) 583-2863 Case 4:06-cv-00204-RC-r < Document 38-1 Filed 01/23/12 r ie 6 of 62 PagelD #: 266

MR, JARVIS: Donnie Jarvis, D-o-n-n-i-e l

2 j-a-r-v-i-s.

3 THE COURT: Thank you. Does either side

4 desire to invoke the rule?

5 MR. HAYNES: We are going to invoke the

6 rule if the Court please.

7 THE COURT: Okay. The rule's going to

8 be invoked, so, gentlemen, we'll need both of you 9 outside until you're called to testify. Please

10 understand that part of the rule means you cannot

11 discuss your testimony with anyone while you're 12 waiting. Additionally, you may not listen to anyone 13 else's testimony, which includes, nobody can come out 14 and tell you what somebody else is saying. That's why 15 we have you outside the courtroom. Okay? Do y'all 16 have any questions? There are. different punishments 17 that could occur including contempt of the court if 18 you don't follow the rules. So, it's serious. 19 All right. Gentlemen, if you'll please

20 step outside, we will have you called in when it's 21 your turn to-testify. Thank you for being here. 22 (Witnesses exit the courtroom.)

23 THE COURT: Okay. We will hear the

24 requests of the parties at this time. 25 MR. HAYNES: Your Honor, this is a --

Charla Reamy, CSR, TCRR (903) 583-2863 Case 4:06-cv-00204-RC-/- \ Document 38-1 Filed 01/23/12 ^ ie 7 of 62 PagelD #: 267

l styled as a motion for new trial filed by the 2 defendant, Mr. Anderson, on the ground of newly 3 discovered evidence. Of course, it's filed outside of 4 what the rules provide for for filing a motion for new 5 trial, but the Court, I understand, is treating this 6 matter as a writ of habeas corpus.

7 We expect that the evidence is going to

8 demonstrate that key information about the State's

9 complaining witness was withheld at the time of trial, 10 and that that prevented the jury from finding out that 11 the complaining witness had an extensive prior 12 criminal record including a conviction for sexual 13 abuse in the -- in Essex County, New York, that

14 occurred on the 13th of April 2000, just a little

15 while before the case was tried. That prevented the 16 defendant's trial counsel from making a vigorous

17 cross-examination of the complaining witness, which, 18 if that had been able to have been done -- the case

19 basically turned on the believability of the 20 complaining witness. I don't think the Court's going 21 to be able to conclude beyond a reasonable doubt that 22 if the jury had heard that about the complaining 23 witness, the verdict would have been the same. And 24 that's what we think the evidence is going to

25 demonstrate to you this afternoon.

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l THE COURT: Thank you, Mr. Haynes.

2 Okay. Let's hear from the State.

3 MR. MOSS: Your Honor, initially the

4 State would agree that this case has been filed as a

5 motion for new trial based on newly discovered

6 evidence and that that motion has been filed outside 7 of the statutory guidelines and, as such, should be

8 denied.

9 Additionally, the State would also ask

10 the Court to take judicial notice of its file. You

11 will see that Mr. Anderson has previously filed a writ 12 of habeas corpus that was addressed by the court of 13 criminal appeals. In that writ of habeas corpus, he 14 complained, among other things, about ineffective 15 assistance at trial and his request for relief was

16 denied.

17 The State plans to show the Court that

18 back when this case was tried, it was the district

19 attorney's office practice at that time to provide a 20 criminal -- full criminal history of all witnesses

21 that planned to testify. The prosecutor that 22 prosecuted the case filed an affidavit in this court 23 -- Billy Gant -- indicating that he had no specific 24 recollection about the case but that it was the

25 process that the prosecutor's office followed at that

Charla Reamy, CSR, TCRR (903) 583-2863 Case 4:06-cv-00204-RC-A 1 Document 38-1 Filed 01/23/12 *~ qe 9 of 62 PagelD #: 269

l time and that he cannot think of any reason why

2 Mr. Barnett's criminal history would have been

3 withheld.

4 Additionally, Mr. Gant indicated that he

5 reviewed the record, and Mr. Anderson's trial counsel 6 Donnie Jarvis, in fact, questioned the alleged -- the 7 victim, Mr. Darin Barnett, about his previous

8 conviction, although -- the State will admit --

9 inartfully. Mr. Barnett -- the State will call 10 Mr. Barnett. Mr. Barnett will indicate that he was,

11 in fact, convicted in the year_oj_J^00_7£ojr__a sexual 12 offense. It was a felony. He was sentenced to a year

13 in county jail in the State of New York and that he 14 was required.to register as a sex offender and he has 15 been registered in the State of Texas since the time 16 he moved here in 2001 when he was released from jail 17 in Essex County, New York.

18 Mr. Barnett will also_^z_won1 d also___

19 testify that the lawyer for the defendant in that_ 20 case, Donnie Jarvis, visited with him prior ^to^trial^ 21 that they talked about his conviction for a

22 sexually-related matter. Mr. Barnett admitted^ -him.

23 that he was, in fact, a sex offender and required to 24 register. And so, at least at that point when 25 Mr. Jarvis had met with Mr. Barnett, that he was on

Charla Reamy, CSR, TCRR (903) 583-2863 Case 4:06-cv-00204-RC-£r' x Document 38-1 Filed 01/23/12 P'-e 10 of 62 PagelD #: 270

l notice that Mr. Barnett had some criminal history that 2 needed to be investigated. And^Mr^jJarvis will 3 testify that he ygmprnhered prosecuting -- or, 4 .remembers representing Mr. Anderson. He cannot recall 5 specifically if a criminal history was provided to him 6 or not. He has reviewed the record. He remembers 7 meeting with Mr. Barnett, he remembers talking to him 8 somewhat about his criminal history but he doesn't 9 have any specific recollection, and that he remembers 10 questioning Mr. Barnett on the stand about his 11 criminal conviction.

12 And then the State would tender to the

13 Court a trial transcript -- I don't know if the Court 14 has it -- of the trial at large.

15 MR. HAYNES: We certainly don't have any

16 objection to that and we would want the Court to 17 review the entire transcript.

18 THE COURT: That will be made part of the

19 record.

20 MR. MOSS: And I would just ask the Court

21 if you had the affidavit of Billy R. Gant. Should be 22 file marked November 10, 2010.

23 THE COURT: No, I'm not showing that

24 document to be filed. Wait. It looks like it got put 25 in one of the files but not the one I was operating

Charla Reamy, CSR, TCRR (903) 583-2863 Case 4:06-cv-00204-RC-A" N Document 38-1 Filed 01/23/12 P ^e 11 of 62 PagelD #: 271

l under.

2 MR. MOSS: Yeah, it won't -- shouldn't be

3 in the writ file. It should be in the trial file. I

4 think that's the confusion.

5 THE COURT: Yes.

6 MR. MOSS: The files have been used

7 interchangeably.

8 THE COURT: Yes. This is in Cause Number

9 20118, is where the affidavit was located. And that 10 was from Billy Gant. Okay. Anything further?

11 MR. MOSS: Not at this time, Your Honor.

12 THE COURT: Okay. Mr. Haynes, you may

13 call your first witness.

14 MR. HAYNES: We call Donnie Jarvis.

15 THE COURT: Sir, if you'd come forward

16 and have a seat on the witness stand, please.

17 Okay. You may proceed.

18 MR. HAYNES: Thank you, Your Honor.

DONNIE JARVIS, 19

20 having been first duly sworn, testified as follows: DIRECT EXAMINATION 21

22 BY MR. HAYNES:

23 Q. What's your name, sir?

24 A. Donnie Jarvis.

25 Q. What city do you live in, Mr. Jarvis?

Charla Reamy, CSR, TCRR (903) 583-2863 Case 4:06-cv-00204-RC-^ N Document 38-1 Filed 01/23/12 P ^e 12 of 62 PagelD #: 272

l A. Sherman, Texas.

2 Q. And how long have you lived in Sherman?

3 A. All my life basically, except for when I went

4 to law school at Tech.

5 Q. All right. And how old a man are you?

6 A. Forty-two.

7 Q. And on March 20, 2002, were you a licensed

8 attorney in the state of Texas?

9 A. Yes.

10 Q. Are you a licensed attorney in the state of

11 Texas now?

12 A. Yes.

13 Q. Did you represent the defendant in this case,

14 Walter Gerald Anderson -- in this cause now on trial?

15 A. Yes.

16 Q. Were you hired or were you appointed?

17 A. Appointed.

18 Q. When were you first appointed?

19 A. I do not recall.

20 Q. Are you able -- when was the case tried?

21 A. I don't remember the exact date.

22 Q. If you saw the transcript, would it refresh 23 your memory?

24 A. Sure.

25 MR. HAYNES: May I approach the witness,

Charla Reamy, CSR, TCRR (903) 583-2863 Case 4:06-cv-00204-RC-^ v Document 38-1 Filed 01/23/12 P -e 13 of 62 PagelD #: 273

1 Your Honor?

2 THE COURT: Yes, sir.

3 Q. (By Mr. Haynes) Mr. Jarvis, I'm just going 4 to show you the first page of the first volume of the 5 transcript. When you look at that, can that -- does 6 that refresh your memory about when the trial might

7 have been?

8 A. Yes.

9 Q. And when was it?

10 A. 20th of March, 2002.

11 Q. All right. So, it was tried in the spring of

12 2002. How long had you been representing Mr. Anderson

13 before the trial began?

14 A. Gosh, I don't remember, honestly. I searched

15 for my file and I could not find his file.

16 Q. All right. Weeks? Months? Days? Do you

17 have any idea?

18 A. I don't honestly.

19 Q. No idea at all. All right. Prior to the

20 beginning of the trial, did you confer with the 21 prosecutor?

22 A. I'm sure I did.

23 Q. Who was the prosecutor?

24 A. I want to think that it was Billy Gant.

25 Q. All right. Did you ask him for what we

Charla Reamy, CSR, TCRR (903) 583-2863 Case 4:06-cv-00204-RC-A'' Document 38-1 Filed 01/23/12 P •« 14 of 62 PagelD #: 274

1 lawyers call the discovery information about the case? 2 A. I would think I would have. I can't say for

3 sure, but I would have told -- I think that was a

4 standard court rule --

5 Q. And did you --

6 A. -- it be provided.

7 Q. I'm sorry. I didn't mean to interrupt you.

8 Did you receive discovery information from Mr. Gant? 9 A. I do not -- I received some discovery, yes.

10 Q. Okay. Did it -- did you ask Mr. Gant for

11 information about the prior criminal record of any of 12 his witnesses?

13 A. I don't recall asking that specifically, but

14 that's what I was referring to a moment ago actually. 15 I think there was court rules stating it was supposed

16 to be provided prior to voir dire.

17 Q. All right. And, in particular, did you ask 18 him about the prior criminal record of his witness,

19 Darin Barnett?

20 A. I just don't remember if I did or didn't,

21 honestly.

22 Q. All right.

23 MR. HAYNES: Approach the witness again,

24 Your Honor?

25 THE COURT: You may.

Charla Reamy, CSR, TCRR (903) 583-2863 Case 4:06-cv-00204-RC-A^ Document 38-1 Filed 01/23/12 P ^ 15 of 62 PagelD #: 275

1 q. (By Mr. Haynes) All right. I'm going to 2 direct your attention to page 30 of the trial record 3 and, in particular, your response to a question from 4 the Court at the bottom of the page. I understand 5 that this trial was eight years ago now. There's no

6 way you remember verbatim what was said. But when you 7 look at that document that I pointed out to you, does 8 that refresh your memory about a colloquy between you

9 and the trial court with regard to the information you 10 had been provided about the prior criminal record of 11 the witnesses?

12 A. Yes, it does.

13 Q. What did you tell the judge at that time? 14 A. I told the judge I didn't receive the

15 criminal history prior to the picking of the jury. 16 Q. All right. And understanding you can't

17 remember it now, surely at that time it was very fresh 18 in your1 mind about whether you had or had not received 19 the information.

20 A. True.

21 Q. All right. And you told the Court you

22 hadn't. Right?

23 A. Right.

24 Q. And you wouldn't have told the Court you

25 hadn't if you really had?

Charla Reamy, CSR, TCRR (903) 583-2863 Case 4:06-cv-00204-RC-A'' Document 38-1 Filed 01/23/12 P <216 of 62 PagelD #: 276

l A. No, I would not have.

2 Q. All right. And you have looked for your file 3 and you don't have it. Right?

4 A. Agreed.

5 Q. So, there's no way to check now to see what

6 was in the file.

7 A. True.

8 Q. And even if you had the file, it would be 9 hard to say what was there now was there in March of 10 2002 .

11 A. Probably a fair statement.

12 Q. All right. If you had known about

13 Mr. Barnett's criminal record, would have you pointed 14 it out to the jury?

16 Q. You'd agree with me that that would have

17 reflected badly on his credibility?

18 A . True .

19 Q. Do you know what his criminal record was at 20 that -- as it existed at that time, March 2002?

21 A. I've had a chance to look through this and

22 I'd forgotten this part of it, but, if I recall, I 23 asked him some questions in relation to him having 24 some criminal history in New York or something. If I 25 remember correctly.

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l Q. The document before you, just switch over to

2 page 47 and 48. That's the point at which you're 3 asking him about his prior criminal record in New 4 York; is that correct?

5 A. That's correct.

6 Q. And you asked him if it was true that he'd 7 been convicted of a sexual assault in New York. 8 Right?

9 A. Correct.

10 Q. His answer was he had not?

11 A. Right.

12 Q. And you didn't have documents that would show 13 that he had.

14 A. True.

15 Q. Because, if you had, you would have shown 16 them to him. Right?

17 A. Agreed.

18 Q. All right. And if you didn't have those 19 documents, it was because the district attorney didn't 20 give them to you.

21 A. I agree.

22 Q. All right. .And he denied a lot of your 23 questions about his prior criminal record; is that 24 true?

25 A, That's true.

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l Q. And you didn't have anything in writing -- . 2 A. Agree.

3 Q. -- to impeach him with.

4 A. Yes.

5 Q. Did you obtain any information from any other 6 source -- not the district attorney -- about

7 Mr. Barnett's prior criminal record?

8 A. I -- I think -- and I'm just going off what I

9 remember because I don't remember for sure that this 10 is correct. I know that I went out there to speak 11 with him where he was working and I want to think that 12 I was -- I talked to maybe another employee there or

13 somebody and got some rumor-information type of thing, 14 which is why I think that this goes on the way it does 15 because I'd heard some rumors that there might be 16 something.

17 Q. You asked -- you asked Barnett about whether 18 he was a drug user; is that correct?

19 A. Correct.

20 Q. Did you have any direct information from 21 Barnett himself that he was a drug user?

22 A. I don't think he told me directly. I don't

23 know for sure.

24 Q. Did you ever talk to Barnett, himself, 25 personally before you talked to him on the witness

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1 stand?

2 A. I know I went out there to talk to him. I 3 don't remember if I actually got to talk to him. I 4 don't know if I talked to his boss and/or him. I 5 honestly don't remember.

6 Q. So, whatever you used to cross-examine him 7 with that we see there on page 48 -- 47, 48, 49, 8 around there of the record -- was what you had picked 9 up when you went to his place of employment and talked 10 to him or maybe his coworkers.

11 A. Or rumors or something. I think it came from 12 investigating the case.

13 Q. All right. So -- and, at this point, at this 14 time, that's all you can tell us. You don't have any 15 documents about it.

16 A. I don't.

17 Q. Thank you, Mr. Jarvis. MR. HAYNES: No further questions. Pass 18

19 the witness.

20 MR. MOSS: May I approach?

THE COURT: Yes. 21

CROSS-EXAMINATION 22

23 BY MR. MOSS:

24 Q. Mr. Jarvis, you cannot remember if you went 25 up and spoke to him or not?

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l A. I don't remember for sure. I know that I

2 intended to. Whether I actually got to talk to him, I 3 just don't remember.

4 Q. Okay. I'm going to direct your attention to 5 page 43, Line 11.

6 A. Okay.

7 Q. If you'd just take a look at that.

8 A. Yeah. Okay.

9 Q. Okay. So, reading that, does that refresh 10 your memory?

11 A. It does.

12 Q. Did you get to go speak with Mr. Barnett in 13 preparing for this trial?

14 A. I did. Said I talked to him in January of 15 this year.

16 Q. The case was tried in? ? 2,0

18 Q. You went and talked to him about two months 19 before trial- Right? . . 15 V>«_ ^«-t>pOS

25 information, yes.

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l Q. You knew it was New York. Right?

2 A. I knew that he was from New York.

3 Q. Okay. Did you know that he was registered as 4 a sex offender in the state of Texas in 2002 when the 5 case was tried?

6 A. I did not know that.

7 Q. Okay. Did you know that -- did you know in 8 2002 -- did you have the ability to get on the 9 internet in 2002?

10 A. I probably did.

11 Q. Okay. Did you know that in 2002 -- well, 12 since 1996, the State of Texas has been posting those 13 individuals that were required to register in the 14 state of Texas as sex offenders on a website 15 administered by the Texas Department of Public Safety? 16 A. Are you asking do I know that now or did I 17 know that then?

18 q. Well, do you know that now?

19 A. I do know that now.

20 Q. In 2002, were you aware that sex offenders 21 had to register and that DPS was posting that 22 registration online at a database that the public 23 could search?

24 A. I don't know that I knew that or not,

25 honestly. I don't honestly know.

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l common for them to provide that information generally? 2 Q. Generally, and then in this specific case, do 3 you think if an issue like that came up, you would 4 expect them to then provide that information? 5 A. Well, I would expect it.

6 Q. Okay. But do you have any specific 7 recollection in this particular case?

8 A. No.

9 Q. Okay. All right. What specifically do you 10 remember about this case from trial trying it?

11 A. I don't remember a whole lot about it. Some

12 -- some -- a little bit of discussion about --

13 settlement discussion. I talked to the jury -- I

14 remember talking to the jury after the trial and some 15 of their remarks and so forth, but, really, I don't 16 remember a whole lot about the trial, itself.

17 Q. There was a strategy discussed between you

18 and Mr. Anderson about calling his son who could have 19 rebutted some the victim's testimony. Correct?

20 A. Agreed, yes.

21 Q. Okay. What was his son's expected testimony 22 to be?

23 A. Of course it was our thought that the son

24 could -- that his testimony would go along with 25 Mr. Anderson's.

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l Q. All right. Having that information then, at

2 least there was a concern in your mind that the

3 defendant -- or, the victim had been convicted of this 4 offense, do you know if you ever specifically asked 5 the prosecutor in this case for a copy of the -- for a 6 copy of the defendant's criminal history? 7 A. I do not remember one way or the other,

8 honestly.

9 Q. Okay. And you worked with Billy Gant and 10 Myles Porter for four years.. Correct? 11 A. True.

12 Q. Pretty easy to work with?

13 A. Yeah.

14 Q. Did you ever feel like they were withholding 15 anything from you?

16 A. No.

17 Q. Okay. Do you think that, at least in your 18 experience and experience practicing in this court, if 19 you were to tell the judge prior to -- prior to voir 20 dire or prior to the trial starting, Judge, I've 21 gotten all the discovery but I haven't got the 22 criminal histories of the witnesses, do you think it 23 would be common in the course of practicing with them 24 that they would have then provided information to you? 25 A. I do -- are you asking me do I think it was

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1 Q. Okay.

2 A. They were in the car together.

3 Q. They were in the car together. And, 4 essentially, the facts of this case were, Mr. Barnett 5 was a taxicab driver, and he alleged that Mr.

6 Anderson, his son, and a third individual entered the 7 vehicle, held him at gunpoint, and demanded that he 8 drive them to Utah.

9 A. Right.

10 Q. And then they traveled for a distance and 11 Mr. Barnett convinced Mr. Anderson that, if we turn

12 back around, I can take you to a place and give you a

13 car and let you go and you don't have to take me to 14 Utah. That was the bare bones facts of it. Right? 15 A. Right.

16 Q. Okay. Did you -- did you ever consider 17 conducting an independent search for the defendant's 18 sex-offender registration?

19 A. Not that I recall.

20 Q. Okay. But that information was out there 21 you know now that that information was out there and 22 available to you as a defense lawyer with -- armed 23 with the information that he may or may not be a sex 24 offender in New York. Correct?

25 A. I agree the information is out there now.

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l Whether it was then or not, I honestly don't know.

2 MR. MOSS: All right. Pass the witness. REDIRECT EXAMINATION 3

4 BY MR. HAYNES:

5 Q. All right. Well, I don't want to beat this 6 horse too bad, but, again, when you look at the bottom 7 of page 30, what you told the trial judge at the time 8 was that not only did you not receive the criminal 9 history, but you didn't receive the witness list 10 before the jury selected.

11 A. Agreed.

12 Q. And that, surely, was your accurate

13 recollection at the time the case was tried.

14 A. Yeah. I wouldn't have told the judge that if 15 it wasn't true.

16 MR. HAYNES: Thank you, Mr. Jarvis. RECROSS-EXAMINATION 17

18 BY MR. MOSS:

19 Q. And knew Mr. Barnett was going to testify at 20 the trial, though. Right? You didn't need a witness 21 list to know that he was going to be there.

22 A. Well, I mean, I didn't know one way or

23 another for sure. You know, I didn't know on the day 24 of trial they would come to -- come to some agreement 25 or dismiss the case. You never know what's going to

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l happen until you get there.

2 Q. Right. But, I mean, if the State was going 3 to prove that part -- this particular case -- this 4 particular indictment with the facts involved, the 5 essential witness -- I mean, they could not prove the 6 case if Mr. Barnett was there (sic). Right?

7 A. I think that's right.

8 Q. Okay. All right. Nothing further.

9 MR. HAYNES: Nothing further of this

10 witness.

11 THE COURT: You may step down. Thank

12 you. If you will just wait outside the courtroom for 13 us, sir.

14 THE WITNESS: No problem, Your Honor.

15 You want this back up here?

16 THE COURT: Yes, please, sir. Thank you

17 You may call your next witness, Mr.

18 Haynes.

19 MR. HAYNES: Darin Barnett.

20 THE COURT: Sir, if you'll come forward

21 and have a seat over here on the witness stand,

22 please. Okay. If you will just speak into that 23 microphone. Go ahead and move that microphone into 24 your mouth -- right in front of your mouth so we can 25 hear you.

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l You may proceed, Mr. Haynes.

2 DARIN BARNETT,

3 having been first duly sworn, testified as follows 4 DIRECT EXAMINATION

5 BY MR. HAYNES:

6 Q. What's your name, sir?

7 A, Darin Ray Barnett.

8 Q. And what's your date of birth?

9 A. 3/12/67.

10 What town do you live in, sir'

11 A. Bonham.

12 Q. How long have you lived in Bonham?

13 A. A while.

14 Q. Can you give me any better idea than that --

15 A. The last --

16 Q. -- what year you moved here?

17 A. 2001. Maybe. Somewhere around there.

18 Q- All right. Now, you are, of course, the very

19 same Darin Ray Barnett who is the complaining witness 20 in the case now on trial, the State against Walter

21 Gerald Anderson; is that correct?

22 A. Yes, sir.

23 Q. Mr. Barnett, you are the same Darin Barnett

24 who pleaded guilty on April 13, 2000, to the offense 25 of sexual abuse in the supreme court for Essex County,

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l New York; is that right?

2 A. I don't know. I don't know what --

3 Q. You don't know?

4 A. I don't know what I pleaded to, no. I don't

5 know.

6 Q. All right.

7 MR. HAYNES: May I approach the witness,

8 Your Honor?

9 THE COURT: Yes, sir.

10 Q. (By Mr. Haynes) All right, Mr. Barnett, I'm 11 going to show you a document. Look that document 12 over.

13 A. Yes, sir.

14 Q. Does this document pertain to you?

15 A. It says it does, yes, sir.

16 Q. Does it?

17 A. Darin Barnett. Yes, sir.

18 q. Well, I mean, you were in court when this 19 happened. Right?

20 A. Right.

21 Q. And you got sentenced to a year in jail in 22 New York. Right?

24 Q. So, you haven't forgotten this, Mr. Barnett, 25 have you?

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1 A. No. I just didn't know what I got convicted 2 of

3 Q. All right. But this is you; is that correct? 4 A. Yes, sir.

5 Q. And you did plead guilty in New York on the 6 13th of April 2000, you did receive a conviction for 7 sexual abuse, and you were sentenced to one year in 8 jail. Right?

9 A. Yes, sir.

10 Q. You served in jail, you remember being there. 11 Right?

12 A Yes, sir.

13 Q Okay. What was the conduct that caused you 14 -- what did you do to cause this conviction to happen? 15 A. I don't understand where you're going.

16 Q. Well, I mean, the State of New York accused 17 you of a crime, you pleaded guilty to it, you served a 18 jail sentence. So, tell the Court what you did that 19 resulted in that legal proceeding taking place.

20 A. I don't know --

21 THE WITNESS: What does he want? Ma'am,

22 I don't -- I don't understand what he wants. I mean 23

24 THE COURT: Then just let him know if you

25 don't understand the question.

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— 3 0

1 A. (By the Witness) I don't understand what you 2 want .

3 Q. (By Mr. Haynes) All right. Well, you did 4 some thi ng that caused you to go to court in New York, 5 plea d g uilty, and take a year in jail. Right? 6 A. Right.

7 Q. What was it?

8 A. I don't -- I don't know what you want.

9 Q- I want you to tell me what you did that

10 caused you to spend the year in jail in New York. 11 A. Wrong place at the wrong time.

12 Q. Okay. More specifically.

13 A. Well, I don't know.

14 Q. What place were you at?

15 A. Essex County.

16 THE WITNESS: I don't know what he's

17 tryi-ng to get from me.

18 Q. (By Mr. Haynes) What was the wrong time? 19 Why was it the wrong time?

20 A. Wrong time in my life, I guess.

21 Q- All right. Who was the other person who was 22 involved in this other than you?

23 A. I don't remember her name.

24 Q. Okay. It was a woman, though. Right? 25 A. Right.

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l Q. What did you do to her?

2 A. I didn't do nothing to her.

3 Q. All right. So, they put you in jail for a 4 year for nothing. A. It was a plea agreement. I • I don't know 5

6 how to answer this.

7 Q. All right. So, your best -- the best thing 8 you can tell the judge is, you have no idea why or 9 what you did that caused you to be in this legal 10 predicament you were in in the State of New York. 11 A. I don't understand why you're -- I'm on trial 12 here for.something that --

13 Q. Sir, you're not on trial. You've already -- 14 you've pleaded guilty and you've served your sentence. 15 No one can do anything else to you. But I want to 16 find out why you were in that legal pickle in New York 17 and I want you to tell the judge what caused it. 18 That's all.

19 A. Just wrong place, wrong time, with the wrong

20 woman, I guess.

21 Q. All right. And you can't tell us any more

22 than that?

23 A. No.

24 Q. Or you won't.

25 A. I -- I just -- I don't know where you're

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l trying to go with it. I don't know what you want me 2 to say.

3 Q. Well, I want you to say -- this is the last 4 time I'm going to ask. Okay? I want you to say what 5 you did with this lady that caused you to be charged 6 with a crime to which you pled guilty for which you

7 received a one-year jail sentence. I want you to tell 8 the judge what you did.

9 A. I didn't do anything wrong.

10 Q. Okay. Did you ever talk to -- do you know 11 who Donnie Jarvis is?

12 A. No .

13 Q. All right.

14 A. I know of him, I guess. I've seen him, but I

15 don't know him.

16 Q. You talked to him in court at the trial. 17 Right?

18 A. I reckon. Like I say, I don't know him.

19 Q. Do you remember the lawyer who represented 20 Mr. Anderson at the trial that happened in March of 21 2002?

22 A. Just by name.

23 Q. All right. But you remember that

24 Mr. Anderson did have a lawyer in court on March -- in 25 March 2002. Right?

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l A. Yes.

2 Q. You testified.

3 A. Yes.

4 Q. The prosecutor asked you questions. Right? 5 A. Right.

6 Q. Mr. -- the lawyer that represented 7 Mr. Anderson asked you questions, also. Right? 8 A. Right.

9 Q. Had you ever seen that lawyer before the 10 trial?

11 A. Yes.

12 Q. Okay. When and where?

13 A. He come by my house on Oldham Road.

14 Q. All right. That's here in Bonham? 15 A. Yes, sir.

16 Q. When did he come by to talk to you? 17 A. Before the trial.

18 Q. All right. Do you know how long before or 19 not?

20 A. No, sir.

21 Q. How long did y'all spend talking? 22 A. Not long.

23 q. What did he talk to you about, do you 24 remember?

25 A. He asked me about New York and I said I

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l didn't know what I got convicted of, and I didn't

2 until just a while ago. I'd never really known what I 3 got convicted of.

4 Q. ' All right. Did he ask you anything else? 5 A. I don't remember.

6 Q. You don't remember how long that you talked. 7 to him; is that right?

8 A. No, sir.

9 Q. Okay. Now, I understand you don't know

1° exactly why you got prosecuted in New York. Do you 11 know whether what you got prosecuted in New York for 12 was a felony or a misdemeanor?

13 A. At the time, I didn't know.

14 Q. Now, when you've seen the document, you're 15 reminded it's a felony.

16 A. Now I know.

17 Q. But you didn't know then?

18 A. No, sir.

19 Q. Thank you, Mr. Barnett. MR. HAYNES: No further questions, Your 20

21 Honor,

24 Q. Mr. Jarvis knew you had criminal trouble in 25 New York, didn't he?

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l A. Yes, sir.

2 Q. Okay. Did you volunteer that or did he ask 3 you about that?

4 A. He asked me about it.

5 Q. Okay. And you told him -- what do you 6 remember telling him got you in trouble in New York? 7 A. I really didn't know. I -- he said something 8 about New York, and I said, you know, New York. 9 Q. Okay.

10 A. He -- they tried to ask me questions. I was

11 kind of embarrassed.

12 Q. What about it embarrassed you?

13 A. Being charged with that, I guess.

14 q. What did you get charged with? 15 A. What the guy --

16 q. Tell me -- tell me what the girl in New York 17 said you did.

18 A. I don't know.

19 Q. You don't know.

20 A. No. I never saw her. Just, it was a plea 21 deal. My lawyer came and that was it. 22 Q. Okay. All right. Did you ever see an

23 indictment?

24 A. I probably did, but...

25 Q. Okay.

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_ 1

3 6

1 A. I don't know.

2 Q. You know she accused you of forcing her to

3 have sex when she didn't want to have sex with you? 4 A. Yes, sir.

5 Q. Okay. All right. So, you knew that. 6 A. Yes, sir.

7 Q. All right. What do we call that when you

8 force someone to have sex with you when they don't 9 want to have sex with you?

10 A. 1 don't know.

11 Q. Just generally. You've heard it on the 12 street. Not the formal name of the crime. What do

13 we call that on a day-to-day thing?

14 A. I don't know.

15 Q- Rape? Does that sound right?

16 A. I guess, yes.

17 Q. I mean, yes? No? Maybe?

18 A. I guess yes. Maybe.

19 Q. Okay. And did Mr. Jarvis know that you had 20 to regi ster as a sex offender?

21 A. I don't know.

22 Q. Did you tell him you had to register as a sex 23 offende r?

24 A. I don't remember.

25 Q. Okay. Do you know if it ever came up that

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l you had to register as a sex offender? 2 A. I don't think it did.

3 Q> Presently you have to register as a sex

4 offender. Correct?

5 A. Yes, sir.

6 Q. Correct?

7 A. Yes, sir.

8 Q. You have to register as a sex offender for 9 the rest of your life?

10 A. Yes, sir.

11 Q. And your registration is current?

12 A. Yes, sir,

13 Q. You were reg istered as a sex offender back in

14 2002

15 A. I guess.

16 Q. Okay. Well, when did you move to Texas? 17 A, I guess in 2001.

18 Q. Okay.

19 A. I got out of jail and came straight to Texas.

20 Q. When you got out of jail and came -- when you 21 came to Texas, did you know because of your conviction 22 you had to register as a sex offender? 23 A. No.

24 Q. How did you find out?

25 From, the Bonham Police Department got ahold of me and

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1 told me I had to come in, and that's how it all 2 started here.

3 Q. He told you that you had to come in. Do you 4 remember when that happened?

5 A. No.

6 Q. All right. Do you know if -- do you know if, 7 now, someone goes to look you up on the computer on 8 the internet, they'll find you registered as a sex

9 offender?

10 A. Yes.

11 Q. Okay. At the time of the trial, could 12 someone have looked you up on the computer?

13 A. I don't know.

14 Q. Okay.

15 A. I'm sure they could if they was looking for

16 New York, I guess.

17 MR. MOSS: Pass the witness.

REDIRECT EXAMINATION 18

19 BY MR. HAYNES:

20 Q. Just a couple more questions, Mr. Barnett. 21 Do you -- you've been asked about this before. 22 During the trial in March of 2002, Mr. Anderson's 23 lawyer asked you about what your problems were in New 24 York. Right?

25 A. I think so.

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3 9

1 Q- And he asked you if you had been convicted of

2 sexual assault in New York and you said you hadn't.

3 Right?

4 A. I think he asked me if I was convicted of

5 rape and I said no.

6 Q. All right. And he asked you also if you had 7 been convicted of sexual assault in New York and you 8 said no to that, too. Right?

9 A. I don't remember him asking that.

10 Q. All right. Well, let me see if I can refresh 11 your memory a little bit. Show you right here. It's 12 page 48 of the trial record, and I'm looking at lines 13 four, five, and six. Just read that to yourself and 14 see if that refreshes your memory any.

15 A. I mean, this was years ago.

16 Q. Okay.

17 A If it says I said it, I guess I said it. 18 Q All right.

19 A I don't know that.

20 Q You don't remember now. Right?

21 A No.

22 Q But you have no reason to challenge the 23 record The man asked you if you had been convicted

24 of sex ual assault in New York and you said you hadn't 25 been. Right?

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• 4 0

1 A. Right.

2 Q. But, really, you had been.

3 A. I-ve only have a 7th-grade education, so I 4 didn't understand what you were going after.

5 Q. Okay. Well, but you knew when you gave that 6 answer that you hadn't been convicted of sexual 7 assault in New York, that that wasn't really true. 8 A. No, I didn't know.

9 Q. You didn't know?

10 A. No.

Q. And that's the -- that's what you're saying 11

12 today, you just didn't know?

13 A. I didn't know, no, sir.

14 Q. And the same thing, I guess, about when he 15 asked you if you had been convicted of a felony in New 16 York, you said no to that, too. Right? 17 A Right, because I didn't know.

18 Q Okay. Thank you, Mr. Barnett.

19 A Yes, sir.

MR. MOSS: Nothing further, Judge. 20

THE COURT: Okay. How old are you? 21

THE WITNESS: Forty-three, ma'am. 22 THE COURT: How far did you go in school? 23

THE WITNESS: 7th grade. 24

THE COURT: Where did you go to school? 25

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• • 41

1 THE WITNESS: Sam Rayburn.

2 THE COURT: Here in Fannin County?

3 THE WITNESS: Yes, ma'am.

4 THE COURT: How did you get to New York? THE WITNESS: Drove a car. 5

6 THE COURT: Why?

THE WITNESS: I was married to a woman 7

8 that was here that was abusive and busted my

9 windshield out and called me 60 times at my work and 10 the police wouldn't do anything, and I just left. 11 THE COURT: So, why did you go to New

12 York?

13 THE WITNESS: Met a woman over there.

14 THE COURT: Was that the same person that

15 you got --

THE WITNESS: No, ma'am. 16

17 THE COURT: -- in trouble about? THE WITNESS: No, ma'am. 18

THE COURT: Have you gotten more 19

20 education since then?

THE WITNESS: No, ma'am. 21

22 THE COURT: Why did you not finish your

23 schooling?

24 THE WITNESS: I was raised up -- I left

25 home when I was 12. Went to work when I was 12.

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l THE COURT: Doing what?

2 THE WITNESS: Mowing the lawns for a guy

3 named Johnny Terry.

4 THE COURT: So, where did you live?

5 THE WITNESS: In a barn.

THE COURT: Why didn't your parents 6

7 continue to raise you?

8 THE WITNESS: I don't know, ma'am. I

9 don't know. They just couldn't do it, I guess. I've 10 got four -- five other brothers and one sister. 11 THE COURT: So, what -- they all got

12 raised by your parents?

13 THE WITNESS: Three of them did and three

14 of us took out on our own. My one brother, he went to 15 the army and served in Iraq.

16 THE COURT: Do you have any other

17 criminal convictions?

THE WITNESS: Felonies, no, ma'am. 18

19 Little minor assaults and that was it. Pushed a guy 20 and got convicted of that and paid a $300 fine. THE COURT: Okay. When was that? 21

THE WITNESS: Six months ago. 22

23 THE COURT: Okay. Any other times where

24 you've received probation or a fine or jail time or 25 prison?

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4 3

1 THE WITNESS: I've never been to prison.

2 I was on probation back whenever I was 19, 20 years 3 old for a DWI, and that was it.

4 THE COURT: Do you have any mental

5 problems? THE WITNESS: No, ma'am. 6

7 THE COURT: Do you have -- have you had

8 any depression or anything like that? Any of those 9 type of illnesses? THE WITNESS: No, ma'am. 10

THE COURT: Okay. Any other questions by 11

12 the State or the defense? MR. HAYNES: Just a couple, Your Honor. 13

REDIRECT EXAMINATION 14

15 BY MR. HAYNES:

16 Q. Okay. Okay, Mr. Anderson (sic), the Court 17 went into your other legal problems and I just want to 18 ask you about those a little bit. 19 A. You mean Mr. Barnett.

20 q. I'm sorry. Mr. Barnett. I beg your pardon. 21 A. That's okay.

22 q.So, we've already talked about the New York 23 one. You were prosecuted in Fannin County for DWI; is 24 that correct?

25 A. A what? DWI?

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— — 44

1 Q. Right.

2 A. Yes, yes.

3 Q. And they put you on probation, they filed a 4 motion to revoke your probation --

5 A. A long time ago, yeah.

6 q. -- and that motion was subsequently 7 dismissed.

8 A. Right, yes, sir.

9 Q. And then -- and that was back in 1988. 10 Right?

11 A. Probably, yes. It was a long time ago.

12 Q. And then in 2004, you were prosecuted here in 13 Fannin County for assaulting a guy named Billy Don 14 Patterson. Right?

15 A. Correct.

16 Q. And the sentence for that was -- what was 17 that sentence, do you remember?

18 A. Just a fine.

19 Q. And then there was also an assault that you 20 paid a fine for this year in May of 2010. Right? 21 A. Right. The guy was trying to steal something 22 off my property and I just shut my gate. 23 Q. Thank you, Mr. Barnett. No further 2 4 questions.

25 A. Thank you.

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l MR. MOSS: Nothing further, Judge.

2 THE COURT: Sir, you may step down.

3 Thank you If you will wait outside in the hall, 4 please.

THE WITNESS: Yes. 5

6 MR. HAYNES: Your Honor, we will ask the

7 Court to take judicial notice of a document in the 8 Court's file titled Coversheet for Evidentiary Records 9 that was filed on October 7th, 2010. You'll find 10 there in that document -- in the jacket copies of all 11 of the documents I just showed the defendant. THE COURT: Any objections? 12

MR. MOSS: No objection, Judge. It's a 13

14 certified document under seal. MR. HAYNES: We'll call Walter Anderson. 15

16 THE COURT: Okay. Sir, you may testify

17 from there.

THE DEFENDANT: Okay. 18

WALTER ANDERSON, 19

20 having been first duly sworn, testified as follows: DIRECT EXAMINATION 21

24 A. Walter Gerald Anderson.

25 Q. You are, of course, the very same Walter

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. AC

1 Gerald Anderson who was the defendant in this case, 2 are you not?

3 A. Yes, I am.

4 Q. Mr. Anderson, let me direct your attention back to late 2001 and early 2002. When were you 5

6 arrested on this charge?

7 A. June 9, 2 0 01.

8 Q. All right. Were you able to post your bond? 9 A. No.

10 Q. So, you remained in jail basically since the 11 date of your arrest in 2001. Right? 12 A. Yes, sir.

13 Q. When was Mr. Jarvis appointed to you to

14 represent you?

A. Immediately upon arraignment, whenever -- 15

16 whatever date that was.

17 Q. So, he had represented you, then, for eight 18 months or so maybe, nine months before the case was | 19 tried?

A. Yes, that's correct. 20

21 Q- Did you have regular contact.with him? 22 A. Yes, I did.

Q. You all were -- he was at his office, you 23

24 were irl jail; is that correct? A. That's correct. 25

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1 q. You could not leave the jail?

2 A. I could not leave the jail.

3 Q. Did he come to visit you in the jail to talk 4 to you about the case?

5 A. He did when I requested him, yes.

6 q. Between June 2001 when you were arrested and 7 March 2002 when the case went to trial, how many 8 meetings did you have with Mr. Jarvis? 9 A. Outside of the court proceedings, two.

10 Q. All right. And in that same period of time 11 from June 2001 until March 2002, how many times were 12 you in court with him?

13 A. Well, that's hard to say because the first 14 trial was declared a mistrial, and then we started a 15 second trial. So, however many proceedings it took, I 16 mean, to do that. I don't know an exact amount. 17 q. Were there any pretrial hearings before the 18 first trial that ended in a mistrial? 19 A. I want to say yes, but I don't know for sure.

20 Q. Okay. How long did the first trial go before 21 the mistrial was declared?

22 A. We picked a jury, and we were in a pretrial 23 proceeding and the bailiff marched me before the jury 24 in chains, and that's what declared the mistrial. 25 q. That's what caused the mistrial.

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2 q. That was only a day -- less than a day. 3 Right?

5 q. And how long after that did you have the 6 trial that took place in March that actually went to a 7 verdict?

8 A. That trial lasted one day outside of picking 9 the jury. So, we picked the jury, and then we had a 10 one-day trial.

11 q. Okay. What I'm wanting to find out is how 12 much time went by between the mistrial of the first 13 case and the beginning off. the +--uo trial t-vi»i tnat that was finished,

14 " A. Not much. I think we had one brief hearing 15 to -- to solidify any pretrial motions like discovery 16 or -- or other things, and -- and that was it. 17 q. All right. So, how long do you figure you 18 had spent with Mr. Jarvis before the trial began in 19 this case on.the 20th of March 2002, total? The two 20 meetings in the jail and all of the rest. 21 A. Not long, because the proceedings,

22 themselves, were - were brief. They were just to, 23 like I say, put on record certain things, and then out 24 the door I went. So, as far as strategy meetings, we 25 didn't really have much time for that. I would say

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l two and that -- it wouldn't be no more than that. 2 Q. Can you tell me how long those meetings were? 3 Can you give me any feel for that? 4 A. It's hard because I remember stressing things 5 to Donnie Jarvis that I wanted him to do that even

6 still didn't get done, but he seemed to know what he 7 was doing, so I left it in his hands. I would 8 probably say maybe an hour all total. 9 Q. Both meetings.

10 A. Combined.

11 Q. Total?

12 A. Combined, yeah.

13 Q. How about letters -- did you guys exchange 14 letters?

15 A. Yeah -- we didn't -- all I ever wrote to him 16 was that I needed to see him, and then I seen him 17 before the proceeding.

18 Q. All right. So, you didn't send him any 19 substantive letters about the case?

20 A. No.

21 Q. Did he send you any substantive letters about 22 the case?

24 q. Did you guys talk on the phone?

25 A. No.

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• *n

1 q. Not at all? So, when you went to trial on 2 the 20th of March 2002, had you received the discovery 3 information in the case?

4 A. No, I hadn't.

5 q. And, in particular, had you received any 6 information about the prior criminal history of Darin 7 Ray Barnett, the State's complaining witness? 8 A. No, because had I received that information, 9 I, myself, would have testified and put my criminal 10 record up against his. It would have been an equal 11 playing field, you see.

12 Q. Okay. So, you had no idea of his prior 13 criminal record?

14 A. None.

15 q. As far as your attorney -- as far as you 16 know, your attorney, Mr. Jarvis, had no idea? 17 A. He had none, and I was surprised when he .-- 18 when he come up with this information for trial 19 because we had not discussed his prior criminal 20 history at all.

21 Q. Okay. Of course, he said in court that he 22 didn't -- hadn't received the prior criminal history. 23 Right?

24 A. That's true.

25 q. And you never saw it. Right?

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l A. I never seen it.

2 Q. Is there anything else that you want to say 3 to the Court or for the record about this situation 4 about what you knew and what your attorney knew about 5 Mr. Barnett's prior criminal history?

6 A. Only that had I known he had a criminal 7 history, I, myself, would have testified and told the 8 jury that I did not kidnap that man. Yes, I had a 9 gun, but I did not kidnap him. And Donnie Jarvis 10 advised me against it because I had a criminal history 11 and he didn't.

12 Q. Okay. Thank you. MR. HAYNES: No further questions. 13

CROSS-EXAMINATION 14

15 BY MR. MOSS:

16 q. What things did you stress to Mr. Jarvis that 17 you wanted him to do?

18 A. I wanted him -- in the testimony, Darin 19 Barne tt and myself, both, said before trial that he 20 stopped for gas, and when he stopped for gas is • is

21 when he came back from the gas station -- from inside 22 the gas station, he told me he had a car. Right then 23 we turned around and went back to the taxicab. If 24 Donnie Jarvis would have went to that place of 25 business, they had video surveillance of him getting

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1 out of the cab, going in by himself, coming back, and 2 getting in the cab. I don't know if they had -- they 3 had surveillance at the pumps or not, but it would 4 have put a definite time frame on when this happened 5 and we could have judged how long it took him between 6 the time of him selling me a car and actually going to 7 the police station, because he had a cell phone in his 8 lap and he didn't use it. And I contested that he 9 went somewhere else after this alleged kidnapping. 10 q. Okay. So, basically, the facts were, you and 11 your son and a third person -- who was the third 12 person?

13 A. Enrique Garza. He was a friend of my son. 14 Q. Enrique Garza. Y'all get in the cab and you 15 say, Take me to Utah.

17 Q. Okay.

18 A. No. The boys were running away to Utah and 19 they were in the backseat discussing it. I said, Take 20 me to Paris,.Texas.

21 Q. Okay. Why did you have a gun? 22 A. The boys had a gun. I came to town -- my son 23 called me on the phone and he said, Dad, I've got a 24 gun, I'm running away from home. I told him, Don't 25 move. Well, I went to town and got the gun from him,

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l unloaded it. I didn't know he had two other guns.

2 Him and Enrique both had two other guns. So, I put 3 the gun in my pocket, and -- the last time he ran away 4 from home, I got -- I got reamed out by my wife 5 because I let him run away from home. I gave him 6 money and told him, Look -- so, this time, when he ran 7 away from home, I said, All right, I'm going to take 8 you to your mom; you tell her you're running away from 9 home. This way, I don't get into trouble. She was 10 working in Paris, Texas, at the time, which is why we 11 needed the cab.

12 Q. So, Mr. Barnett's central story was, you

13 came in, said, Take me to Utah, I gotta gun. Right? 14 And your story was, no, that wasn't the case, it was 15 just a misunderstanding; I never threatened him with a 16 gun.

17 A. Mr. Barnett testified that I didn't do this 18 right away. He said that I got in the cab and -- and 19 told them that we were going to Paris, Texas. He 20 says, Well, if we're going past Honey Grove, we need 21 gas .

22 Q. Okay.

23 A. This is part of his statement. So, we were

24 going to stop to get gas. When I got in the car, the 25 gun had dug into my hip. Before we even got to the

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l gas station, I told him, Listen, I've got this gun; 2 I'm going to set it on the floorboard, it's not even 3 loaded, don't worry about it; I've taken it away from 4 my son. He said, Well, don't worry about it. 5 Q. Mr. Enrique Garza testified at trial, didn't 6 he?

7 A. Yes, he did.

8 Q. Okay. And was his testimony supportive of 9 your side of the story or supportive of Mr. Barnett's 10 side of the story?

11 A. All he testified to in reality was the fact 12 that he didn't see me point the gun at Darin Barnett 13 and order him to do anything. That's basically all 14 his testimony will reflect.

15 Q. Okay.

MR. MOSS: Nothing further. 16

MR. HAYNES: That's all we have, Your 17

18 Honor. The defendant rests on the hearing. THE COURT: Anything from the State? 19

MR. MOSS: Nothing from the State, Your 20

21 Honor.

THE COURT: 'Okay. Are the attorneys 22

23 prepared to make their final remarks at this time? MR. MOSS: Yes, Judge. 24

MR. HAYNES: Yes. 25

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1 THE COURT: Okay. You may proceed,

2 Mr. Haynes

3 MR. HAYNES: Your Honor, we're going to

4 ask the Court to grant relief in this case. It's 5 clear that the credibility of the witness Barnett is 6 critical to the verdict that was attained in this 7 case, and it's" also clear that he deliberately misled 8 the jury about his prior criminal record. And because 9 Mr. Anderson's attorney didn't have the information to 10 effectively cross-examine him, that that was allowed 11 to stand, and if it hadn't, then we can't say beyond a 12 reasonable doubt that the verdict would have been the 13 same .

14 Mr. Anderson has a defense in this case

15 that he was persuaded not to put on because of his 16 :riminal record, and if the true nature of the prior c]

17 witness Barnett had been shown to the jury, that 18 defense could have been put on. That's resulted in a 19 miscarriage of justice in this case, Your Honor. I 20 understand how hard it is to recommend that a case

21 that's eight years old be reopened. I understand all 22 that. But I know the Court knows that a fair and 23 correct result is more important than the convenience 24 of it, and we're asking, because the evidence supports 25 it, for relief to be granted.

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l MR. MOSS: Your Honor, the State would

2 request that the relief as stated in the motion be 3 denied. The defendant has filed a motion for new

4 trial based on newly discovered evidence. He has not

5 shown that that evidence was not available at the time

6 of trial. The defendant was on -- the defense lawyer

7 was on notice that there was criminal history out of

8 the state of New York. He could have investigated

9 that. He failed to do so. He even --he could have

10 --he made a motion to the Court to have the State

11 provide that information. He could have forced the 12 judge to have the State provide that information 13 rather than just make a motion.

14 In addition, as the -- as the defendant's

15 motion is currently presented, it is untimely and the 16 Court doesn't -- actually lacks jurisdiction to grant

17 his request for new trial based on newly discovered 18 evidence because he has filed it some eight years

19 after his conviction in this case when the Court no

20 longer has plenary power over it.

21 The defendant has previously filed a writ

22 of habeas corpus. That writ was -- alleging -- or,

23 raising some similar grounds of ineffectiveness and 24 actual innocence, and the Court in that -- court of 25 criminal appeals, in that case, denied his request

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1 without a hearing; and, as a result, the Court would 2 request -- or, the State would request the Court to 3 deny the defendant's motion for new trial based on 4 those issues.

5 THE COURT: Your understanding of the

6 date when that writ or habeas was raised? 7 MR. MOSS: I believe it was 2004, but I

8 could be -- 2006. The relief was denied without 9 written order by the court of criminal appeals on 10 March 22, 2006, in Case Number WR-61,082 -02 . THE COURT: Okay. Mr. Haynes, any 11

12 response to the State's procedural point regarding the 13 fact that there's been one bite at the apple, in 14 essence, and that there would have been information 15 about that that makes this request untimely? 16 MR. HAYNES: Well --

17 THE COURT: If taken as a writ as opposed

18 to a motion for new trial, which is untimely. MR. HAYNES: We've got -- we've got 19

20 procedural problems in this case for sure and no one 21 can back away from that. But the Court took this 22 matter into an evidentiary stance in this case by 23 treating this as a writ, and I think the evidence 24 shows that Mr. Moss's predecessors were not as careful 25 as they should.have been about turning over the prior

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1 criminal record of Mr. Barnett to Mr. Anderson's 2 lawyers. And I'm afraid it shows that Mr. Barnett was 3 actively deceiving the Court in March 2002, and I dare 4 to say this Court here today when he minimized over 5 and over again what his prior criminal record in the 6 State of New York is, and that just creates such an 7 unlevel playing field that, in the interest of equity 8 and fairness, we're asking the Court for relief. THE DEFENDANT: May I respond to -- 9

THE COURT: No. 10

11 MR. HAYNES: Your Honor, I might point

12 out to the Court that there is a federal writ pending 13 for :06-CV-204 in the Eastern District of Texas, and 14 what that Court did was refer the matter to the 15 magistrate, Judge Mazzant, who placed the case -- the 16 federal writ case on a suspended status until the 17 defendant's -- the State remedies had been exhausted, 18 and he's relying on that authority from the federal 19 court directing him to exhaust the State's remedies to 20 come before this Court today.

21 THE COURT: When was -- when did that

22 occur?

23 MR. HAYNES: The case was closed on the

24 13th of July, 2009, and that's when this order was 25 entered. To get you a paper copy of it would require

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l me to go online and get you a copy. I could certainly 2 do that, but not today. I can send it in the mail if 3 the Court wants to see it.

4 THE COURT: Anybody have an idea of what

5 the federal court thought was still available?

6 MR. HAYNES: No, I don't. We'd have to

7 -- this is just -- I don't -- Judge, I don't know how 8 -- I guess you're probably pretty familiar with the 9 federal court's electronic-docketing system. They

10 send out these little docket reports, and then a

11 document is associated with it. In order to get the 12 document, you have to go online and download it. 13 That's what has all of the details in it. I've got --

14 if you want to see the docket text, Your Honor, I've 15 got it here.

16 THE COURT: No. I trust your statement,

17 but for them to indicate they thought there was

18 something else that could be exhausted is -- 19 MR. HAYNES: They don't specifically say

20 what that is, and, you know, of course, they're not

21 very concerned about the details of State procedure. 22 THE COURT: The Court's position is that

23 -- two things. Procedurally, first this is an 24 out-of-time motion for new trial. Out of an abundance 25 of cause, I allowed for the attorneys to investigate

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l it on your behalf -- basically your attorney

2 investigate it on your behalf, Mr. Anderson. But it's 3 my opinion that the previous writ would have been the 4 appropriate vehicle to raise this, and you don't get 5 multiple bites at the apple on raising writs. So, I'm 6 going to deny your request -- your requested relief. 7 So, if the attorneys would prepare an

8 order reflecting the fact that, in my opinion, he has . 9 exhausted his writ request and then, perhaps,

10 Mr. Anderson can use that to refer to the federal 11 authorities to see if they have anything that they 12 have the ability to address. But then -- at least it 13 will be that type of ruling here; and, of course, he's 14 got the court of appeals ruling on the previous 15 matter.

16 MR. HAYNES: Thank you, Your Honor.

17 MR. MOSS: Yes, Your Honor.

18 THE COURT: All right. Gentlemen, if

19 you'll just get an order due date and order status 20 date .

21 MR. MOSS: I will.

THE COURT: I understand you'll be prompt 22

23 about it, but we'll get a date certain where that will 24 come 'in.

25 Mr Anderson, I appreciate you being

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l here. We will release the bench warrant, so you'll go 2 back, but you'll have a copy of that order coming to 3 you as soon as they get it. Okay? 4 THE DEFENDANT: Sure.

5 THE COURT: All right. Thank you, sir.

6 (End of proceedings.)

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l THE STATE OF TEXAS )

2 COUNTY OF FANNIN )

3 I, Charla Reamy, Official Court Reporter in and for 4 the 336th District Court of Fannin County, State of

5 Texas, do hereby certify that the above and foregoing 6 contains a true and correct transcription of all

7 portions of evidence and other proceedings requested 8 in writing by counsel for the parties to be included 9 in this volume of the Reporter's Record, in the

10 above-styled and numbered cause, all of which occurred 11 in open court or in chambers and were reported by me. 12 I further certify that this Reporter's Record of

13 the proceedings truly and correctly reflects the 14 exhibits, if any, admitted by the respective parties.

15 I further certify that $279.00 is the cost for this

16 volume of the Reporter's Record and will be paid by 17 Fannin County;

18 WITNESS MY OFFICIAL HAND this the 14th day of

19 November, A.D., 2011.

21 Chu/iK CHARLA REAMY, Texajs/ CSR 63 61 22 Expiration Date: 12-31-12 Official Court Reporter, 336th District Court 23 Fannin County, Texas 24 Bonham, Texas 75418 (903) 583-2863 25

Charla Reamy, CSR, TCRR (903) 583-28 6 3 Scanned Dec 14, 2010

CAUSE NO. 20118

STATE OF TEXAS § IN THE 336* JUDICIAL

§ DISTRICT COUH?

WALTER GERALD ANDERSON FANNIN COUNTY,

After consideration of the evidence presented, and the arguments of the Defendant's motion /* for new trial based on newly discovered evidence is denied. Further the court finds that based on the same evidence the Defendant has exhausted all potential remedies available to him through Texas Law.

^Tf\A^ Judge of the 33L^ ^Jl-eLtu'euQ. &i;$4- Court of •r&M.i^.ily County, Texas

J" 31 IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

Ex-Parte

WALTER G. ANDERSON

Petitionfor leaveto file Out-of-time Petitionfor

Discretionary Hearing

RR1EF STATEMENT OF THE CASE

Following ajury trial in the 336th District Court of Fannin County, Texas, petitioner was convicted of Aggravated Kidnapping and sentenced to 25 years in state prison. The 6th District Court of Appeals, Texarkana, affirmed this conviction on December 18, 2003. ,JKrit,N.o..J3.k02^^^^ filed due to the neglect of the appointed attorney, Donnie Jarvis, of Sherman Texas to notify his client, petitioner that the appeal had been affirmed.

The Texas Court of Criminal Appeals has stated that an Appellate Counsel has aduty to inform the defendant that (1) the Appellate Court affirmed the defendant's conviction and (2) the defendant has aright to file apro se petition for discretionary review with the Court ofCriminal Appeals, ex-parte Wilson, 956 S.W. 2d. 25,27 (Tex. Grim. App. 1997) If counsel fails to perform his duty, the appropriate relief is to allow the defendant to file

an out-of-time petition for Discretionary Review. Ex-parte Jarrett, 891, S.W. 935 (Tex.

Crim. App. 1995)

To assume petitioner has lain dormant all this time and not tried to gain relief from a

miscarriage of justice, or wrongful conviction, or any other term that describes

petitioner's situation would be inerror. Upon learning ofthe 6th District Courts decision to affirm through the prison law library six months after the fact, petitioner's biggest

concernwas beatingthe one year limitation set by the A.D.E.P.A. The Texas law library

does not provide legal advice, only books. Petitioner carried his claim of innocence

through the Federal Courts and all the way to the gates of the U.S. Supreme Court as a

pro-se litigant. Petitioner's claim remains barred for Procedural Infractions that were a

result of a court appointed attorney who deliberately, with prejudice, failed to present

trial errors that he himself preservedto the record and then tried to manipulatethe system

to hide his actions by not notifying petitionerthat his conviction had been affirmed and

that he had a right to file a P.D.R. in this court.

Thatthis court grant me leave to file an Out-of-time Petition for Discretionary Review to

complete process theFederal Courts demand to overcome a Procedural Barcurrently in

place. Thank you.

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