Overstreet, Jerome

• Court: Court of Appeals of Texas
• Decided: April 20, 2015
• Docket: WR-83,105-01
• Status: Published

Opinion

Enclosed is:

Motion for Leave to File Applicant's Motion to Obtain Undeniable Proof of Actual Innocence, Order for Leave to File

Applicant's Motion to Obtain Undeniable Proof of Actual Innocence Order

Application for Subpoena Please file this with the Court, and notify me with the enclosed self- addressed stamped envelope. Thank you very much for your attention to this matter. Sincerely, IN THE

TEXAS COURT OF

CRfMI'N'AL APPEALS

No. C-213-009750-1092061-A

EX PARTE

JEROME OVERSTREET

MOTION FOR Lv-EAVE 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

Writof 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, W 'UZzfov-iQ-lS Jerome Overstr'eet, Applicant, Pro se TDCJ#1599743 McConnell Unit 3001 S. Emily Dr. Beeville, Tx 78102 IN THE

CRIMINAL APPEALS

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

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 r 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 Atfit 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 facie 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 ttie 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<3t 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 requested1 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. IN THE

No. C-213-009750-1092O61-A

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.# 457560559) for the month of November 2007 can be obtained.

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 $) DAYS OF RECEIPT OF SERVICE.

Issued day of , 2015 by Signature of person serving subpoena if other than officer of the State.