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No. 06-14-00149-CR

IN THE COURT OF APPEALS 

FOR THE SIXTH DISTRICT OF TEXAS AT TEXARKANA 

RAYMOND EARL BARNETT 

Appellant 

v.

THE STATE OF TEXAS 

Appellee 

ON APPEAL FROM THE 336TH JUDICIAL DISTRICT COURT 

 OF FANNIN COUNTY, TEXAS 

THE HON. LAURINE BLAKE, JUDGE PRESIDING 

TRIAL COURT CAUSE NO. 20922 

APPELLANT'S MOTION FOR REHEARING 

 STEVEN R. MIEARS

State Bar No. 14025600 

211 North Main 

Bonham, Texas 75418 

Tel: 903-640-4963 

Fax: 903-640-4964 

Email: stevemiears@msn.com

ACCEPTED

06-14-00149-CR

SIXTH COURT OF APPEALS

TEXARKANA, TEXAS

8/3/2015 8:15:10 AM

DEBBIE AUTREY

CLERK

 FILED IN 6th COURT OF APPEALS TEXARKANA, TEXAS 8/3/2015 8:15:10 AM DEBBIE AUTREY Clerk
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MOTION FOR REHEARING

TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:

Comes now Raymond Earl Barnett, appellant in the above entitled and numbered 

cause, and submits this motion for rehearing under Rule 49.1 of the Texas Rules of 

Appellate Procedure, and requests that the court reconsider its opinion of July 24, 2015.

POINT OF ERROR ONE:

In vacating the trial court’s nunc pro tunc judgment, but not dismissing the case, 

the Court of Appeals errs in rendering a judgment not authorized by the Texas Rules of 

Appellate Procedure.

ARGUMENT

The Court correctly finds that the entry of the judgment nunc pro tunc was error. 

The Court correctly enters a Judgment vacating that illegal judgment under Rule 43.2 

(e). However, the Court errs in failing to follow the rest of that appellate rule by not 

ordering the dismissal as that rule mandates. Rule 43.2 establishes the judgments this

Court may enter. Vacating the judgment, and not dismissing the case, is not an option 

afforded by that rule. The Court errs in failing to render a judgment authorized by Rule 

43.2(e) of the Rules of Appellate procedure. In this error, the Court “has so far departed 
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from the accepted and usual course of judicial proceedings, or so far sanctioned such a 

departure by a lower court, as to call for an exercise of the Court of Criminal Appeals' 

power of supervision.” Tex. R. App. P. Rule 66.

POINT OF ERROR TWO:

The Court of Appeals errs by making an invalid judgment a final judgment.

ARGUMENT

Vacating the nunc pro tunc judgment leaves the trial court’s last judgment entered 

on October 13, 2005 as the final judgment. That judgment is illegal because it is wrong. 

It recites that the Appellant is guilty and finally convicted of two charges of sexual 

assault of a child. Yet, this Court acknowledges in its opinion those charges were later 

dismissed. 

The Court in its opinion seems to suggest in footnote three on page 6 that the 

remedy is for Fannin County to notify the Texas Department of Corrections those 

charges were dismissed. Appellant agrees this procedure should be followed to, as this 

Court’s opinion suggests, “update the status” of his case with prison authorities. 

However, that action neither corrects the error in the judgment, nor causes the entry of 

a valid judgment.
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Texas law sets forth the requirements for a judgment to be legal in a criminal case. 

See Tex. Code Crim. Proc. art. 42.01. For a judgment to be valid it must correctly recite 

whether the defendant was convicted of the charge. The judgment left in place by this 

Court does not. It is wrong. The Court errs in failing to enter a judgment authorized by 

the Rules. In this error, the Court “has so far departed from the accepted and usual course 

of judicial proceedings, or so far sanctioned such a departure by a lower court, as to call 

for an exercise of the Court of Criminal Appeals' power of supervision.” Tex. R. App. 

P. Rule 66.

POINT OF ERROR THREE

The Court errs in finding that the Appellant waived his right to appeal the trial 

court’s failure to grant a new trial on the indecency with a child charge. 

ARGUMENT

Appellant’s point of error was there was an illegal spillover effect on the 

indecency charge and sentence resulting from the sexual assault convictions. This claim 

was raised in a motion for a new trial on the indecency charge filed after the State 

dismissed the sexual assault cases. The Court’s opinion holds he waived his claim of 

illegal spillover effect by not raising it in his direct appeal of the original convictions in 

all of his cases. The Court’s analysis is wrong for several reasons.
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First, the claims of the illegal spillover effect could not have been raised on direct 

appeal because they did not exist. To have raised them on direct appeal, Appellant would 

have had to have anticipated this Court would find there was factually insufficient 

evidence to support the sexual assault cases. And he would have had to have anticipated 

that the State would then dismiss those cases after they were remanded back to the trial 

court. Second, he would have had to foresee that the trial court would ignore the mandate 

of this Court to set timely those remanded cases for trial. Third, he would have had to 

predict that the State would, after several years of delay, dismiss those charges. Finally, 

he would have had to deduce that after all of these events occurred, the trial judge would 

enter an invalid judgment memorializing an incorrect judgment.

The claims of the unlawful spillover effect only became cognizable when the State 

dismissed the sexual assault charges this Court remanded for retrial. Appellant could not 

have raised this complaint until it existed. Had the mandate of this Court been followed 

timely he would have faced a re-trial of all charges, including the sexual assault cases. 

In that context there would have been no claim of a spillover effect. Instead, the trial 

court ignored the mandate of this Court for many years. Nor could the Appellant have 

ever made this claim in any motion for rehearing or post-conviction writ. The issue 

simply did not exist until the State dismissed the sexual assault charges. The action of 

the dismissal of the charges did not occur until the Appellant filed his writ of mandamus.
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The opinion errs in failing to acknowledge that Appellant’s ability to appeal those 

issues based upon the law in U.S. v. Pelullo, 14 F.3d 881, 897-900 (3rd Cir. 1994) did 

not even arise until the State’s recent action. Appellant’s opportunity to address on 

appeal that his right to a fair trial and sentence on the indecency case only became viable

once the State belatedly dismissed the sexual assault cases. Those charges were 

dismissed only when the trial court was compelled to take action to follow this Court’s 

mandate issued on October 23, 2007. Logically and legally, he could not have even 

raised these issues in his direct appeal. In finding he waived his right to appeal this Court 

errs.

The Appellant’s motion for a new trial or a new sentencing hearing on the 

indecency case was timely. He filed it within thirty days of the trial court’s order 

granting the State’s dismissal of the sexual assault charges. It was that order of dismissal 

which first gave rise to both the need for a legal judgment, and the Pellulo claims. In 

finding waiver of his right to appeal whether the trial court erred in overruling his motion 

for a new trial this Court errs. In this error, the Court “has so far departed from the 

accepted and usual course of judicial proceedings, or so far sanctioned such a departure 

by a lower court, as to call for an exercise of the Court of Criminal Appeals' power of 

supervision.” Tex. R. App. P. Rule 66.
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PRAYER FOR RELIEF

For the reasons herein alleged, appellant prays the court grant this motion for 

rehearing, set aside the opinion of July 24, 2015, reverse the judgment and sentence on 

the indecency with a child charge, and order new trial.

RESPECTFULLY SUMITTED,

_____________________

Steven R. Miears

211 North Main

Bonham, Texas 75418

SteveMiears@msn.com

Tel. 903-640-4963

Fax: 903-640-4964

State Bar Card No. 14025600

Attorney for Appellant
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Certificate of Word Count

Counsel for the Appellant certifies that the word count of this motion for 

rehearing is 1,424 words and within the limitations for length of motions for 

rehearing. 

_________________________

Steven R. Miears

Certificate of Service

This is to certify that a true and correct copy of the above and foregoing 

Appellant’s Motion for Rehearing was delivered by electronic e-mail service to 

Richard E. Glaser, Fannin County Criminal District Attorney; 101 East Sam 

Rayburn Drive; Bonham, Texas 75418; on February 12, 2015; and, that a copy 

was mailed to the Appellant, Raymond Earl Barnett, TDC, Polunsky Unit, Inmate 

number 1332873, 3872 FM 350 South, Livingston, Texas 77351.

_________________________________

Steven R. Miears