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a^ IN THE ijeMJl IDICIAL DISTRICT COURT ••'. i
MAR' 1 2- ,uObKADfJlfl£N COUNTY, TEXAS B'-2l
EX PA*JIm!NALDISTRICT ATTORNEY *
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KAUFMAN CO••UNTY CAUSE NO. 23.07&A-86 DONALTTGENE BIMTQC *
*
*
CAUSE NO. 23dfe9|A:8e Tr APPLICANT
ATTORNEY'S AFFIDAVIT
STATE OF TEXAS
COUNTY OF KAUFMAN ( u.
BEFORE ME, the undersigned authority, personally appeared DEBORAH A. BEESLEY, Attorney at Law, who, by me duly sworn on her oath deposed and said as follows:
"My name is DEBORAH A. BEESLEY. Iam an attorney licensed topractice law in the State of Texas. My State Bar Card number is 02042300. Iwas the attorney appointed by the honorable Judge of the 86th Judicial District Court, Kaufman County, Texas, to represent, DONALD GENE BLANTON, Applicant in Cause No. 23,078-86 and Cause No 23,592-86 in the 86th JUDICIAL DISTRICT COURT OF KAUFMAN COUNTY, TEXAS, which resulted in Applicant being sentenced to twenty years in prison in Cause No. 23,078-86 and to life in prison in Cause No. 23,592-86 by a jury.
"As to the claim that Applicant received ineffective assistance from his trial, counsel, Iwould show the Court that Iwas not Applicant's trial counsel. I had been appointed to represent DONALD GENE BLANTON on August 2, 2004. Imet with Applicant on August 4,2004 atthe Kaufman County Law Enforcement Center in Kaufman, Texas. At that time, Applicant had been charged with two felony offenses, Possession of a Controlled Substance Penalty Group One, Less Than One Gram and Tampering With Physical Evidence. Applicant advised me that he was on parole and would have a blue warrant issuedfor him soon if onehad not already been issued for him. Applicant alsoadvised me that the police should have a video of his traffic stop and that the tape would show the police planting drugs on him during the stop. Iimmediately contacted the District Attorney's Office for Kaufman County and discovered that their office had not received the police report on Applicant's cases yet. Imet with Applicant again at thejail on August 12, 2004 to inform him that the District Attorney's Office did not have a copy of his police report or his videotape yet but that I would continue to investigate his case by contacting the Mabank Police Department myself. On September 3, 2004, Iwas able to talk with Chief
ATTORNEY'S AFFIDAVIT - PAGE 1 STATE'S EXHIBIT
A
be appointed to represent him. The Court denied Applicant's request. The Court advised Applicant that he could have any attorneythat he wanted as long as he was willing to pay for the attorney. Applicant did not state any valid reasons as to why I was not representing him effectively. Essentially, Applicant was upset with me because I had advised him that I anticipated that a jurywould convict based on the evidence in his cases and that was the only reason he was upset. As the Judge told Applicant during that hearing, Applicant probably wouldnot be happy with any attorney who bothered to tell him the truth ....that he would be convicted by the evidence in his cases.
"With respect to the Judge admonishing the Applicanton his right to represent himself, the Judge did everything in his power to make sure that the Applicant understood that he alone would be responsible for knowing everything an attorney should know about the laws when trying cases. No one forced Applicant to represent himself. That decision was his and his alone. No one in the courtroom felt that was a good decision on Applicant's part, but he has the right to represent himself even if he has a fool for a client.
"As to Applicant's Ground Five, it is totally and completely without merit. No one other than the jurors went back into the jury room during deliberations. The alternate juror was dismissed and released from her jury duty prior to the jury beginning their deliberations.
"With respect to Applicant's Ground Six, he alleges that his conviction was obtained due to improper instructions to the jury regarding having testimony read back during jury deliberations. Applicant's allegation is totally without merit. The Judge gave the proper instructions with regards to the jury not being specific enough in their note about the testimony they wanted read back to them. The court reporter was in the process of finding the testimony that the jurors had requested be read back to them when the jury sent out the filled out verdict form which indicated that they had reached a verdict. Contrary to Applicant's allegation, the jurywould have been allowed to hear the testimonythat they felt was in dispute but for, apparently, their own decision to continue deliberating and trying to reach a verdict while the court reporter was looking the information up for them. The Judge certainly did not instruct the jury to continue on with their deliberations without hearing the testimony that they had requested.
"In his claim in Ground Eight, Applicant alleges that the baggies which contained the 'altered' evidence in his case was not ripped or torn as alleged by the State. Applicant's allegation is totally and completely false. During my investigation of the case, Italked with all of the witnesses who came into contact with the evidence. Each witness indicated to me that the baggies were ripped or torn when he first saw the baggies containing the cocaine in Applicant's cases. This was also verified to me by Andrew Macey who conducted the analysis of the drugs. Also, I personally viewed the two baggies myself prior to the jury trial and noticed that the two baggies definitely had been either ripped or
ATTORNEY'S AFFIDAVIT - PAGE 12
fit *J O
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torn. I also showed the torn baggies to Applicant prior to the beginning of his jury trial. In addition, Iwould bring to the Court's attention that Applicant mislead the Court when he attached a copy of the baggie in Applicant's Appendix "F." Applicant stated to the Court that the picture in Applicant's Appendix "F" is a picture of the baggie that is alleged by the State to contain cocaine. It is not. The baggie that is shown in that picture contained the marijuana that Applicant also had in his possession at the time of his arrest. It does not contain a picture of the two separate baggies which contained the cocaine that was the reason for his arrest. I have attached a copy of the picture which actually shows the two torn baggies which held were evidence against Applicant at his trial, see attached Exhibit "C."
"As to Applicant's allegation in Ground Nine that his convictions were obtained and based on legally and factually insufficient evidence, Applicant could not be more wrong. After obtaining all of the evidence on Applicant's cases, I explained to him that the evidence was overwhelmingly against him. The evidence against Applicant was one of the strongest and most powerful in a criminal case that I had ever seen. Not only did Officer Jennings testify that Applicant was in possession of a controlled substance, but he also testified that he saw Applicant exercise care, custody and control over the drug when Applicant threw the two separate baggies out of his truck window. The Officer also testified that the baggies appeared to have been tampered with because they had been ripped in order to allow the drugs to fly out of the bags as the Applicant was tossing the bags out of his window. All of the arresting officer's testimony was corroborated by the videotape of the incident. Applicant's convictions, despite his allegations to the contrary, were based on legally and factually sufficient evidence.
"As to Applicant's claim in Ground Ten that his convictions were obtained due to the wrongful denial of his Motionfor Change of Venue, Iwould submit that the Judge's denial of his Motion was proper. Applicant was well aware of the burden in Chapter Thirty-One of the Texas Code of Criminal Procedure that requires a defendant to prove that he could not receive a fair and impartial jury in Kaufman County, Texas in order to get the venue changed. He had asked me about getting a change of venue while I was preparing his case for trial and we had specifically discussed that issue. I even made a special trip back to the jail just to show Applicant that particular law so that he could read it for himself. Applicant had the burden of proving that he could not receive a fair trial and he did not prove that. None of the panel members indicated that they had prior knowledge of the Applicant or of his cases.
"As to Applicant's allegation in Ground Eleven, he claims that his convictions were obtained because the trial court failed to properly and adequately present the fact issue as to probable cause for the traffic stop to the jury. Applicant's allegation is without merit. The Judge properly denied Applicant's request. During Officer Jennings' testimony,
ATTORNEY'S AFFIDAVIT - PAGE 13
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Criminal District Attorney 100 W. Mulberry Kaufman, Texas 75142
(972) 932-4331
June 29, 2005
Carla Stone Kaufman County Law Enforcement Center
RE: Donald Gene Blanton, DOB 11/13/1962^ /^ '/#>W Pi Oz. $&—
Dear Ms. Stone:
Please release the hold on Donald Gene Blanton for the offense of Possession of Marihuana alleged to have occurred on July 10,2004. The State has reviewed this case and does not wish to prosecute the case.
Thank you,
BiHunt Assistant District Attorney Bar No. 24027081
EXHIBIT •£•
Dismissed and Opinion Filed October 22,2014
In The
Court of Appeals
Jfiftlj liatrtct of ©exas at Dallas No. 05-14-01324-CV
No. 05-14-01325-CV
IN RE DONALD GENE BLANTON, Relator
Original Proceeding from the 86th Judicial District Court Kaufman County, Texas
Trial Court Cause Nos. 23078-86,23592-86
MEMORANDUM OPINION
Before ChiefJustice Wright, Justice FitzGerald, and Justice Francis Opinion by Chief Justice Wright Relator filed this petition for writ ofmandamus contending that the trial court improperly denied his motion to suppress in his 2005 trial. A grand jury indicted Donald Gene Blanton on two charges: (1) possession of cocaine in an amount less than one gram and (2) tampering with evidence. Blanton v. State, No. 05-05-01060-CR, 2006 WL 2036615 (Tex. App.—Dallas July
21, 2006, pet. refd) (mem. op., not designated for publication). The case was tried to a jury. The jury convicted him of both offenses and assessed an enhanced punishment of twenty years in the possession case and life in the tampering case. Id. This Court affirmed the conviction. Id.
Relator's petition represents an attempt to collaterally attack/his criminal conviction.
While the courts of appeals have concurrent mandamus jurisdictidnjvith the court of criminal appeals in some post-conviction proceedings, Padilla v. McDaniel, 122 S.W.3d 805, 808 (Tex. Crim. App. 2003) (forensic DNA testing), only the court ofcriminal appeals has jurisdiction in
,A
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cases collaterally^attacking a final judgment ofconviction ofa felony. In f^McAfee, 53 jS.W.3d 715, 717 (Tex. App.—Houston [1st Dist.] 2001, orig. proceeding). The intermediate courts of
appeals have no original jurisdiction over petitions for habeas corpus relief in connection with
criminal proceedings. Tex. Gov't Code Ann. § 22.221(d) (West 2004) (limiting.habeas corpus
jurisdiction of intermediate courts of appeals to civil matters); TEX. CODE CRIM. PROC. Ann. art.
11.05 (West 2005) (granting original jurisdiction in cases seeking writs of habeas corpus in
criminal cases to the court of criminal appeals, districts courts, and county courts). Because we
lack jurisdiction over this original proceeding, we DISMISS the petition.
141324F.P05 /Carolyn Wright/ CAROLYN WRIGHT CHIEF JUSTICE
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32
A. It was loose Pm 2 Q. Just loose on his lap?
3 A. Correct.
4 Q. Later on you did a search of the cab where the
5 driver's seat was?
6 A. Yes, I did.
7 Q. And what you found there was it consistent
8 with what you had seen on his lap when he was getting
9 out of the truck?
10 A. Yes, it was.
11 Q. And was it also consistent with the residue
12 that was left in the bag that Officer Swearingen found?
13 A. Yes, it was.
m 14 THE DEFENDANT: Objection, Your Honor.
in
15 We supposed to be trying this for cocaine not
16 marijuana
17 THE COURT: Overruled,
18 Q. (BY MS. HUNT) Okay. There was one bag that
19 you found that you believed to have cocaine in it; is
20 that correct?
21 A. Correct
22 Q. And then one bag was found by Officer
23 Swearingen with just residue in it?
24 A. Correct.
• r.-V 25 Q. And the residue was the green leafy residue?
*-£"
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1 the time, and the lights are going. You think he would
2 notice it? We're not talking middle of the day, lots
3 of cars. Only one car there. You guys can watch that
4 yourself.
5 The defendant, he doesn't pull over. And
6 he's not speeding. He's not tryi^ng^fvtoc evade or
7 anything. But he's just driving slowly. What's he
8 doing in there? Why doesn't he pull over right away? j 9 The reason is he's in possession. He's in possession V\
10 of, and you heard the testimony, s'the controlled'
11 -»subst=ance5 the cocaine, and you heard the testimony
12 about the marijuana as well. And he's got the bags and
13 he sees the officer and he's the only one on the road
14 and he's got to get rid of that thing. Okay?
15 They're in little baggies. You can look
16 at the evidence. You can see the bags, types of bags.
17 You will notice that the bags that were recovered are ;;
18 prejtty^easy to stretch and pull and break. Where the. V 19 little bag, the bag where the cocaine is in, it's a
20 little tougher. Okay? Look at all of that evidence.
21 And he's trying to get rid of it.
22 At some point, the siren comes on and he
23 knows he has to pull over. But before he does that, he
24 gets rid those two bags. He throws them out. Whether
25 you think he meant to destroy them, or alter it, at the*