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LETTER BRIEF TO THE

TEXAS COURT OF CRIMINAL APPEALS

EN BANC

TR.CT.NO. 20118

To the Honorable Judges ofthe Texas Court ofCriminal 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 ofEvidence 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,,oflaw,and Due Process.

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

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

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

appointed fortrialandthe Direct Appeal by the convicting court. Attorney fortheDirect
Appeal has a duty to inform his client ofit being affirmed by the Court ofCriminal

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 ofRight to

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

Court ofCriminal 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 ofthe United States Constitution clearly states, "The privilege ofthe

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

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

fromthe 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 heldproving a grossmiscarriage

ofjustice. But I wasdenied reliefdueto the State Courts determination thatthe first

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

the apple." Yet the first Habeas was neverheard! Even after this very court ordered

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

very entity ofthe 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 StateCourtwas

allowed to completely sidestepanywrongdoing 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 ofthe first State Habeas Corpus to deny the second. This is

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

manyothershave been subject to this kind ofjudicialtreatment? Whenwillsomebody do

something about it?

PRAYER

My hope is that, as a UnitedStates Citizenundertwo Constitutions that forbid

this kind oftreatment, the Texas Constitution and the United States Constitution, this

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

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

Rights! Please give medueprocess! Start withthetrialandaskAttorney 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 meof itsbeing affirmed, robbing meof a

P.D.R. AsktheCounty Judge why she failed to acknowledge petitioners FirstHabeas

Corpus and why she, (Judge Laurine Blake) ignored anorder 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 ofTime Petition for

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

was no reason given. An Out ofTime 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 ofrecord.

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

is the very definition of Obstruction ofJustice. 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

"to ^txv\v\«» CouaW Cm Awo^W* $>WU [1.07

D^ AllO^ fur\*V(Vv (j)aA\y W^'^M^ 4o ^lAe Or\
Scanned Dec 14, 2010

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 ofhabeas corpus to the District Clerk ofFannin County and that more than

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

record ofthe 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 Courtwithin thirty days a response bysubmitting 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 anyapplications filed by Relator such that theyarenot filedpursuant to TEX. Code

CRIM. Proc. art. 11.07, § 3, or that no applications by Relatorhave 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^

s >

wytiMAjy lO/J */I*NX £\ ^

Pq *f 13
Scanned Dec 14, 2010 'm

THE STATE OF TEXAS

vs.

WALTER G. ANDERSON

NO.20118-A

§

§

§

>^ -ft - 2£>0<T

IN THE DISTRICT CO

336th JUDICIAL DI

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 aWrit 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 amatter oflaw, there are no controverted, previously

unresolved issues offact material to the legality ofthe Applicant's confmement. TM-^*^~—***~"—

PRAYER

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.

P<\ i

H3

15
Scanned Dec 14, 2010

^y

On this the

Respectfully submitted,

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

day ofAugust, 2005,1 mailed a true copy ofthe above Original Answer

and General Denial to Walter C. Anderson, Applicant, by regular mail.

«°1

m

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

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1

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REPORTER'S RECORD

VOLUME 1 OF 1

TRIAL COURT CAUSE NO. 2 0118-B

3

STATE OF TEXAS ) IN THE DISTRICT COURT

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Plaintiff, )

5 vs_ ) FANNIN COUNTY, TEXAS .

6

WALTER GERALD ANDERSON )

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Defendant. ) 336TH JUDICIAL DISTRICT S

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

13 WRIT OF HABEAS CORPUS I

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18 |

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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

25

Proceedings reported by stenographic method.

Charla Reamy, CSR, TCRR ApQfflilX y (903) 583-2863 M / n^
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APPEARANCES

Mr. James L. Moss

SBOT 24049592

Fannin County Criminal District

Attorney's Office

101 East Sam Rayburn Drive

Bonham, Texas 75418

(903) 583-7448

ATTORNEY FOR THE STATE OF TEXAS

- AND -

Mr. David K. Haynes

SBOT 09285500

Attorney at Law

2600 W. Eldorado Pkwy. Suite 220

McKinney,-Texas 75070

(972) 542-1793

ATTORNEY FOR THE DEFENDANT

Charla Reamy, CSR, TCRR

(903) 583-2863
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INDEX

VOLUME 1

WRIT OF HABEAS CORPUS

Page Vol

NOVEMBER 12, 2 010

Opening statement by Mr. Haynes 6 1

Opening statement by Mr. Moss 8 1

DEFENDANT'S WITNESSES

Direct Cross

Donnie Jarvis- 11,25 20,26

Darin Barnett 27,39,44 35

Walter Anderson 46 52

Both sides rest and close 54 1

Closing statement by Mr. Haynes 55 1

Closing statement by Mr. Moss 56 1

Court 's Ruling 59 1

Court Reporter's Certificate 62 1

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EXHIBIT INDEX

(None.)

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PROCEEDINGS

THE COURT: We're on the record in the

State of Texas versus Walter Anderson, Cause Number

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

THE DEFENDANT: Yes, ma'am.

THE COURT: Let's have you stand and

we'll have you be sworn in. If you'll stand and raise

your right hand.

(The Defendant was sworn by the Court.)

THE COURT: Okay. You may be seated.

Okay. Do we have any witnesses here that the parties

would like to have sworn?

MR. MOSS: Yes, Judge.

MR. HAYNES: Mr. Jarvis, Judge.

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

raise your right hand.

(The witnesses were sworn by the Court.)

THE COURT: Okay. If you'll state your

name, please.

MR. BARNETT: Gary Barnett.

THE COURT: Say the last one.

MR. BARNETT: Barnett.

THE COURT: Can you spell --

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

THE COURT: Thank you, sir.

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

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

THE COURT: Thank you. Does either side

desire to invoke the rule?

MR. HAYNES: We are going to invoke the

rule if the Court please.

THE COURT: Okay. The rule's going to

be invoked, so, gentlemen, we'll need both of you

outside until you're called to testify. Please

understand that part of the rule means you cannot

discuss your testimony with anyone while you're

waiting. Additionally, you may not listen to anyone

else's testimony, which includes, nobody can come out

and tell you what somebody else is saying. That's why

we have you outside the courtroom. Okay? Do y'all

have any questions? There are. different punishments

that could occur including contempt of the court if

you don't follow the rules. So, it's serious.

All right. Gentlemen, if you'll please

step outside, we will have you called in when it's

your turn to-testify. Thank you for being here.

(Witnesses exit the courtroom.)

THE COURT: Okay. We will hear the

requests of the parties at this time.

MR. HAYNES: Your Honor, this is a --

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styled as a motion for new trial filed by the

defendant, Mr. Anderson, on the ground of newly

discovered evidence. Of course, it's filed outside of

what the rules provide for for filing a motion for new

trial, but the Court, I understand, is treating this

matter as a writ of habeas corpus.

We expect that the evidence is going to

demonstrate that key information about the State's

complaining witness was withheld at the time of trial,

and that that prevented the jury from finding out that

the complaining witness had an extensive prior

criminal record including a conviction for sexual

abuse in the -- in Essex County, New York, that

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

while before the case was tried. That prevented the

defendant's trial counsel from making a vigorous

cross-examination of the complaining witness, which,

if that had been able to have been done -- the case

basically turned on the believability of the

complaining witness. I don't think the Court's going

to be able to conclude beyond a reasonable doubt that

if the jury had heard that about the complaining

witness, the verdict would have been the same. And

that's what we think the evidence is going to

demonstrate to you this afternoon.

Charla Reamy, CSR, TCRR

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THE COURT: Thank you, Mr. Haynes.

Okay. Let's hear from the State.

MR. MOSS: Your Honor, initially the

State would agree that this case has been filed as a

motion for new trial based on newly discovered

evidence and that that motion has been filed outside

of the statutory guidelines and, as such, should be

denied.

Additionally, the State would also ask

the Court to take judicial notice of its file. You

will see that Mr. Anderson has previously filed a writ

of habeas corpus that was addressed by the court of

criminal appeals. In that writ of habeas corpus, he

complained, among other things, about ineffective

assistance at trial and his request for relief was

denied.

The State plans to show the Court that

back when this case was tried, it was the district

attorney's office practice at that time to provide a

criminal -- full criminal history of all witnesses

that planned to testify. The prosecutor that

prosecuted the case filed an affidavit in this court

-- Billy Gant -- indicating that he had no specific

recollection about the case but that it was the

process that the prosecutor's office followed at that

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time and that he cannot think of any reason why

Mr. Barnett's criminal history would have been

withheld.

Additionally, Mr. Gant indicated that he

reviewed the record, and Mr. Anderson's trial counsel

Donnie Jarvis, in fact, questioned the alleged -- the

victim, Mr. Darin Barnett, about his previous

conviction, although -- the State will admit --

inartfully. Mr. Barnett -- the State will call

Mr. Barnett. Mr. Barnett will indicate that he was,

in fact, convicted in the year_oj_J^00_7£ojr__a sexual

offense. It was a felony. He was sentenced to a year

in county jail in the State of New York and that he

was required.to register as a sex offender and he has

been registered in the State of Texas since the time

he moved here in 2001 when he was released from jail

in Essex County, New York.

Mr. Barnett will also_^z_won1 d also___

testify that the lawyer for the defendant in that_

case, Donnie Jarvis, visited with him prior ^to^trial^

that they talked about his conviction for a

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

that he was, in fact, a sex offender and required to

register. And so, at least at that point when

Mr. Jarvis had met with Mr. Barnett, that he was on

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notice that Mr. Barnett had some criminal history that

needed to be investigated. And^Mr^jJarvis will

testify that he ygmprnhered prosecuting -- or,

.remembers representing Mr. Anderson. He cannot recall

specifically if a criminal history was provided to him

or not. He has reviewed the record. He remembers

meeting with Mr. Barnett, he remembers talking to him

somewhat about his criminal history but he doesn't

have any specific recollection, and that he remembers

questioning Mr. Barnett on the stand about his

criminal conviction.

And then the State would tender to the

Court a trial transcript -- I don't know if the Court

has it -- of the trial at large.

MR. HAYNES: We certainly don't have any

objection to that and we would want the Court to

review the entire transcript.

THE COURT: That will be made part of the

record.

MR. MOSS: And I would just ask the Court

if you had the affidavit of Billy R. Gant. Should be

file marked November 10, 2010.

THE COURT: No, I'm not showing that

document to be filed. Wait. It looks like it got put

in one of the files but not the one I was operating

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under.

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

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

think that's the confusion.

THE COURT: Yes.

MR. MOSS: The files have been used

interchangeably.

THE COURT: Yes. This is in Cause Number

20118, is where the affidavit was located. And that

was from Billy Gant. Okay. Anything further?

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

THE COURT: Okay. Mr. Haynes, you may

call your first witness.

MR. HAYNES: We call Donnie Jarvis.

THE COURT: Sir, if you'd come forward

and have a seat on the witness stand, please.

Okay. You may proceed.

MR. HAYNES: Thank you, Your Honor.

DONNIE JARVIS,

having been first duly sworn, testified as follows:

DIRECT EXAMINATION

BY MR. HAYNES:

Q. What's your name, sir?

A. Donnie Jarvis.

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

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A. Sherman, Texas.

Q. And how long have you lived in Sherman?

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

to law school at Tech.

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

A. Forty-two.

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

attorney in the state of Texas?

A. Yes.

Q. Are you a licensed attorney in the state of

Texas now?

A. Yes.

Q. Did you represent the defendant in this case,

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

A. Yes.

Q. Were you hired or were you appointed?

A. Appointed.

Q. When were you first appointed?

A. I do not recall.

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

A. I don't remember the exact date.

Q. If you saw the transcript, would it refresh

your memory?

A. Sure.

MR. HAYNES: May I approach the witness,

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Your Honor?

THE COURT: Yes, sir.

Q. (By Mr. Haynes) Mr. Jarvis, I'm just going

to show you the first page of the first volume of the

transcript. When you look at that, can that -- does

that refresh your memory about when the trial might

have been?

A. Yes.

Q. And when was it?

A. 20th of March, 2002.

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

2002. How long had you been representing Mr. Anderson

before the trial began?

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

for my file and I could not find his file.

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

have any idea?

A. I don't honestly.

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

beginning of the trial, did you confer with the

prosecutor?

A. I'm sure I did.

Q. Who was the prosecutor?

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

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

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lawyers call the discovery information about the case?

A. I would think I would have. I can't say for

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

standard court rule --

Q. And did you --

A. -- it be provided.

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

Did you receive discovery information from Mr. Gant?

A. I do not -- I received some discovery, yes.

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

information about the prior criminal record of any of

his witnesses?

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

that's what I was referring to a moment ago actually.

I think there was court rules stating it was supposed

to be provided prior to voir dire.

Q. All right. And, in particular, did you ask

him about the prior criminal record of his witness,

Darin Barnett?

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

honestly.

Q. All right.

MR. HAYNES: Approach the witness again,

Your Honor?

THE COURT: You may.

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q. (By Mr. Haynes) All right. I'm going to

direct your attention to page 30 of the trial record

and, in particular, your response to a question from

the Court at the bottom of the page. I understand

that this trial was eight years ago now. There's no

way you remember verbatim what was said. But when you

look at that document that I pointed out to you, does

that refresh your memory about a colloquy between you

and the trial court with regard to the information you

had been provided about the prior criminal record of

the witnesses?

A. Yes, it does.

Q. What did you tell the judge at that time?

A. I told the judge I didn't receive the

criminal history prior to the picking of the jury.

Q. All right. And understanding you can't

remember it now, surely at that time it was very fresh

in your1 mind about whether you had or had not received

the information.

A. True.

Q. All right. And you told the Court you

hadn't. Right?

A. Right.

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

hadn't if you really had?

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A. No, I would not have.

Q. All right. And you have looked for your file

and you don't have it. Right?

A. Agreed.

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

was in the file.

A. True.

Q. And even if you had the file, it would be

hard to say what was there now was there in March of

2002 .

A. Probably a fair statement.

Q. All right. If you had known about

Mr. Barnett's criminal record, would have you pointed

it out to the jury?

A. Yes.

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

reflected badly on his credibility?

A . True .

Q. Do you know what his criminal record was at

that -- as it existed at that time, March 2002?

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

I'd forgotten this part of it, but, if I recall, I

asked him some questions in relation to him having

some criminal history in New York or something. If I

remember correctly.

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Q. The document before you, just switch over to

page 47 and 48. That's the point at which you're

asking him about his prior criminal record in New

York; is that correct?

A. That's correct.

Q. And you asked him if it was true that he'd

been convicted of a sexual assault in New York.

Right?

A. Correct.

Q. His answer was he had not?

A. Right.

Q. And you didn't have documents that would show

that he had.

A. True.

Q. Because, if you had, you would have shown

them to him. Right?

A. Agreed.

Q. All right. And if you didn't have those

documents, it was because the district attorney didn't

give them to you.

A. I agree.

Q. All right. .And he denied a lot of your

questions about his prior criminal record; is that

true?

A, That's true.

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Q. And you didn't have anything in writing --

A. Agree.

Q. -- to impeach him with.

A. Yes.

Q. Did you obtain any information from any other

source -- not the district attorney -- about

Mr. Barnett's prior criminal record?

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

remember because I don't remember for sure that this

is correct. I know that I went out there to speak

with him where he was working and I want to think that

I was -- I talked to maybe another employee there or

somebody and got some rumor-information type of thing,

which is why I think that this goes on the way it does

because I'd heard some rumors that there might be

something.

Q. You asked -- you asked Barnett about whether

he was a drug user; is that correct?

A. Correct.

Q. Did you have any direct information from

Barnett himself that he was a drug user?

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

know for sure.

Q. Did you ever talk to Barnett, himself,

personally before you talked to him on the witness

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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.

18

MR. HAYNES: No further questions. Pass

19 the witness.

20

MR. MOSS: May I approach?

21 THE COURT: Yes.

22

CROSS-EXAMINATION

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

intended to. Whether I actually got to talk to him, I

just don't remember.

Q. Okay. I'm going to direct your attention to

page 43, Line 11.

A. Okay.

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

A. Yeah. Okay.

Q. Okay. So, reading that, does that refresh

your memory?

A. It does.

Q. Did you get to go speak with Mr. Barnett in

preparing for this trial?

A. I did. Said I talked to him in January of

this year.

Q. The case was tried in?

?

A. March. 2,0<b-2-

Q. You went and talked to him about two months

before trial- Right? . . 15 V>«_ ^«-t>pOS<u)l Iq Spdf^,

A. (Moves head up and down.) nor J*st ftod ?

Q. You had at least some information that the

victim in this case had been convicted or prosecuted

for a sexual offense out of another state. Correct?

A. I had -- I guess I had gleaned some

information, yes.

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Q. You knew it was New York. Right?

A. I knew that he was from New York.

Q. Okay. Did you know that he was registered as

a sex offender in the state of Texas in 2002 when the

case was tried?

A. I did not know that.

Q. Okay. Did you know that -- did you know in

2002 -- did you have the ability to get on the

internet in 2002?

A. I probably did.

Q. Okay. Did you know that in 2002 -- well,

since 1996, the State of Texas has been posting those

individuals that were required to register in the

state of Texas as sex offenders on a website

administered by the Texas Department of Public Safety?

A. Are you asking do I know that now or did I

know that then?

q. Well, do you know that now?

A. I do know that now.

Q. In 2002, were you aware that sex offenders

had to register and that DPS was posting that

registration online at a database that the public

could search?

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

honestly. I don't honestly know.

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common for them to provide that information generally?

Q. Generally, and then in this specific case, do

you think if an issue like that came up, you would

expect them to then provide that information?

A. Well, I would expect it.

Q. Okay. But do you have any specific

recollection in this particular case?

A. No.

Q. Okay. All right. What specifically do you

remember about this case from trial trying it?

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

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

settlement discussion. I talked to the jury -- I

remember talking to the jury after the trial and some

of their remarks and so forth, but, really, I don't

remember a whole lot about the trial, itself.

Q. There was a strategy discussed between you

and Mr. Anderson about calling his son who could have

rebutted some the victim's testimony. Correct?

A. Agreed, yes.

Q. Okay. What was his son's expected testimony

to be?

A. Of course it was our thought that the son

could -- that his testimony would go along with

Mr. Anderson's.

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Q. All right. Having that information then, at

least there was a concern in your mind that the

defendant -- or, the victim had been convicted of this

offense, do you know if you ever specifically asked

the prosecutor in this case for a copy of the -- for a

copy of the defendant's criminal history?

A. I do not remember one way or the other,

honestly.

Q. Okay. And you worked with Billy Gant and

Myles Porter for four years.. Correct?

A. True.

Q. Pretty easy to work with?

A. Yeah.

Q. Did you ever feel like they were withholding

anything from you?

A. No.

Q. Okay. Do you think that, at least in your

experience and experience practicing in this court, if

you were to tell the judge prior to -- prior to voir

dire or prior to the trial starting, Judge, I've

gotten all the discovery but I haven't got the

criminal histories of the witnesses, do you think it

would be common in the course of practicing with them

that they would have then provided information to you?

A. I do -- are you asking me do I think it was

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Q. Okay.

A. They were in the car together.

Q. They were in the car together. And,

essentially, the facts of this case were, Mr. Barnett

was a taxicab driver, and he alleged that Mr.

Anderson, his son, and a third individual entered the

vehicle, held him at gunpoint, and demanded that he

drive them to Utah.

A. Right.

Q. And then they traveled for a distance and

Mr. Barnett convinced Mr. Anderson that, if we turn

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

car and let you go and you don't have to take me to

Utah. That was the bare bones facts of it. Right?

A. Right.

Q. Okay. Did you -- did you ever consider

conducting an independent search for the defendant's

sex-offender registration?

A. Not that I recall.

Q. Okay. But that information was out there

you know now that that information was out there and

available to you as a defense lawyer with -- armed

with the information that he may or may not be a sex

offender in New York. Correct?

A. I agree the information is out there now.

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

MR. MOSS: All right. Pass the witness.

REDIRECT EXAMINATION

BY MR. HAYNES:

Q. All right. Well, I don't want to beat this

horse too bad, but, again, when you look at the bottom

of page 30, what you told the trial judge at the time

was that not only did you not receive the criminal

history, but you didn't receive the witness list

before the jury selected.

A. Agreed.

Q. And that, surely, was your accurate

recollection at the time the case was tried.

A. Yeah. I wouldn't have told the judge that if

it wasn't true.

MR. HAYNES: Thank you, Mr. Jarvis.

RECROSS-EXAMINATION

BY MR. MOSS:

Q. And knew Mr. Barnett was going to testify at

the trial, though. Right? You didn't need a witness

list to know that he was going to be there.

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

another for sure. You know, I didn't know on the day

of trial they would come to -- come to some agreement

or dismiss the case. You never know what's going to

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happen until you get there.

Q. Right. But, I mean, if the State was going

to prove that part -- this particular case -- this

particular indictment with the facts involved, the

essential witness -- I mean, they could not prove the

case if Mr. Barnett was there (sic). Right?

A. I think that's right.

Q. Okay. All right. Nothing further.

MR. HAYNES: Nothing further of this

witness.

THE COURT: You may step down. Thank

you. If you will just wait outside the courtroom for

us, sir.

THE WITNESS: No problem, Your Honor.

You want this back up here?

THE COURT: Yes, please, sir. Thank you

You may call your next witness, Mr.

Haynes.

MR. HAYNES: Darin Barnett.

THE COURT: Sir, if you'll come forward

and have a seat over here on the witness stand,

please. Okay. If you will just speak into that

microphone. Go ahead and move that microphone into

your mouth -- right in front of your mouth so we can

hear you.

Charla Reamy, CSR, TCRR

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You may proceed, Mr. Haynes.

DARIN BARNETT,

having been first duly sworn, testified as follows

DIRECT EXAMINATION

BY MR. HAYNES:

Q. What's your name, sir?

Darin Ray Barnett.

And what's your date of birth?

A,

Q.

A. 3/12/67.

What town do you live in, sir'

A. Bonham.

Q.

A.

Q.

A.

Q.

A.

QHow long have you lived in Bonham?

A while.

Can you give me any better idea than that --

The last --

-- what year you moved here?

2001. Maybe. Somewhere around there.

All right. Now, you are, of course, the very

same Darin Ray Barnett who is the complaining witness

in the case now on trial, the State against Walter

Gerald Anderson; is that correct?

A. Yes, sir.

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

who pleaded guilty on April 13, 2000, to the offense

of sexual abuse in the supreme court for Essex County,

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New York; is that right?

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

Q. You don't know?

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

know.

Q. All right.

MR. HAYNES: May I approach the witness,

Your Honor?

THE COURT: Yes, sir.

Q. (By Mr. Haynes) All right, Mr. Barnett, I'm

going to show you a document. Look that document

over.

A. Yes, sir.

Q. Does this document pertain to you?

A. It says it does, yes, sir.

Q. Does it?

A. Darin Barnett. Yes, sir.

q. Well, I mean, you were in court when this

happened. Right?

A. Right.

Q. And you got sentenced to a year in jail in

New York. Right?

A. Right.

Q. So, you haven't forgotten this, Mr. Barnett,

have you?

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

of

Q. All right. But this is you; is that correct?

A. Yes, sir.

Q. And you did plead guilty in New York on the

13th of April 2000, you did receive a conviction for

sexual abuse, and you were sentenced to one year in

jail. Right?

A. Yes, sir.

Q. You served in jail, you remember being there.

Right?

A

Q

Yes, sir.

Okay. What was the conduct that caused you

-- what did you do to cause this conviction to happen?

A. I don't understand where you're going.

Q. Well, I mean, the State of New York accused

you of a crime, you pleaded guilty to it, you served a

jail sentence. So, tell the Court what you did that

resulted in that legal proceeding taking place.

A. I don't know --

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

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

THE COURT: Then just let him know if you

don't understand the question.

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1 A.

— 3 0

(By the Witness) I don't understand what you

2 want .

3 Q. (By Mr. Haynes) All right. Well, you did

4 somethi ng that caused you to go to court in New York,

5 plead 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 QI 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 QAll 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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Q. What did you do to her?

A. I didn't do nothing to her.

Q. All right. So, they put you in jail for a

31

year for nothing.

A. It was a plea agreement. I •

how to answer this.

Q. All right. So, your best -- the best thing

you can tell the judge is, you have no idea why or

what you did that caused you to be in this legal

predicament you were in in the State of New York.

A. I don't understand why you're -- I'm on trial

here for.something that --

Q. Sir, you're not on trial. You've already --

you've pleaded guilty and you've served your sentence.

No one can do anything else to you. But I want to

find out why you were in that legal pickle in New York

and I want you to tell the judge what caused it.

That's all.

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

woman, I guess.

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

than that?

A. No.

Q . Or you won't.

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

I don't know

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

to say.

Q. Well, I want you to say -- this is the last

time I'm going to ask. Okay? I want you to say what

you did with this lady that caused you to be charged

with a crime to which you pled guilty for which you

received a one-year jail sentence. I want you to tell

the judge what you did.

A. I didn't do anything wrong.

Q. Okay. Did you ever talk to -- do you know

who Donnie Jarvis is?

A. No .

Q. All right.

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

don't know him.

Q. You talked to him in court at the trial.

Right?

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

Q. Do you remember the lawyer who represented

Mr. Anderson at the trial that happened in March of

2002?

A. Just by name.

Q. All right. But you remember that

Mr. Anderson did have a lawyer in court on March -- in

March 2002. Right?

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A. Yes.

Q. You testified.

A. Yes.

Q. The prosecutor asked you questions. Right?

A. Right.

Q. Mr. -- the lawyer that represented

Mr. Anderson asked you questions, also. Right?

A. Right.

Q. Had you ever seen that lawyer before the

trial?

A. Yes.

Q. Okay. When and where?

A. He come by my house on Oldham Road.

Q. All right. That's here in Bonham?

A. Yes, sir.

Q. When did he come by to talk to you?

A. Before the trial.

Q. All right. Do you know how long before or

not?

A. No, sir.

Q. How long did y'all spend talking?

A. Not long.

q. What did he talk to you about, do you

remember?

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

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

until just a while ago. I'd never really known what I

got convicted of.

Q. 'All right. Did he ask you anything else?

A. I don't remember.

Q. You don't remember how long that you talked.

to him; is that right?

A. No, sir.

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

exactly why you got prosecuted in New York. Do you

know whether what you got prosecuted in New York for

was a felony or a misdemeanor?

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

Q. Now, when you've seen the document, you're

reminded it's a felony.

A. Now I know.

Q. But you didn't know then?

A. No, sir.

Q. Thank you, Mr. Barnett.

MR. HAYNES: No further questions, Your

Honor,

CROSS-EXAMINATION

BY MR. MOSS:

Q. Mr. Jarvis knew you had criminal trouble in

New York, didn't he?

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A. Yes, sir.

Q. Okay. Did you volunteer that or did he ask

you about that?

A. He asked me about it.

Q. Okay. And you told him -- what do you

remember telling him got you in trouble in New York?

A. I really didn't know. I -- he said something

about New York, and I said, you know, New York.

Q. Okay.

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

kind of embarrassed.

Q. What about it embarrassed you?

A. Being charged with that, I guess.

q. What did you get charged with?

A. What the guy --

q. Tell me -- tell me what the girl in New York

said you did.

A. I don't know.

Q. You don't know.

A. No. I never saw her. Just, it was a plea

deal. My lawyer came and that was it.

Q. Okay. All right. Did you ever see an

indictment?

A. I probably did, but...

Q. Okay.

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1 A.

3 6

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 offender?

24 A. I don't remember.

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

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you had to register as a sex offender?

A. I don't think it did.

Q> Presently you have to register as a sex

offender. Correct?

A. Yes, sir.

Q. Correct?

A. Yes, sir.

Q. You have to register as a sex offender for

the rest of your life?

A. Yes, sir.

Q. And your registration is current?

A. Yes, sir,

37

Q. You were registered as a sex offender back in

2002

A.

Q.

A,

I guess.

Okay. Well, when did you move to Texas?

I guess in 2001.

Q. Okay.

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

Q. When you got out of jail and came -- when you

came to Texas, did you know because of your conviction

you had to register as a sex offender?

A. No.

Q. How did you find out?

From, the Bonham Police Department got ahold of me and

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told me I had to come in, and that's how it all

started here.

Q. He told you that you had to come in. Do you

remember when that happened?

A. No.

Q. All right. Do you know if -- do you know if,

now, someone goes to look you up on the computer on

the internet, they'll find you registered as a sex

offender?

A. Yes.

Q. Okay. At the time of the trial, could

someone have looked you up on the computer?

A. I don't know.

Q. Okay.

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

New York, I guess.

MR. MOSS: Pass the witness.

REDIRECT EXAMINATION

BY MR. HAYNES:

Q. Just a couple more questions, Mr. Barnett.

Do you -- you've been asked about this before.

During the trial in March of 2002, Mr. Anderson's

lawyer asked you about what your problems were in New

York. Right?

A. I think so.

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1 Q3 9

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

25 been. Right?

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1 A.

• 4 0

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.

11 Q.

And that's the -- that's what you're saying

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.

20

MR. MOSS: Nothing further, Judge.

21

THE COURT: Okay. How old are you?

22

THE WITNESS: Forty-three, ma'am.

23

THE COURT: How far did you go in school?

24

THE WITNESS: 7th grade.

25

THE COURT: Where did you go to school?

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• • 41

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?

5 THE WITNESS: Drove a car.

6 THE COURT: Why?

7 THE WITNESS: I was married to a woman

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 --

16

THE WITNESS: No, ma'am.

17 THE COURT: -- in trouble about?

18

THE WITNESS: No, ma'am.

19

THE COURT: Have you gotten more

20 education since then?

21 THE WITNESS: No, ma'am.

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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THE COURT: Doing what?

THE WITNESS: Mowing the lawns for a guy

named Johnny Terry.

THE COURT: So, where did you live?

THE WITNESS: In a barn.

THE COURT: Why didn't your parents

continue to raise you?

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

don't know. They just couldn't do it, I guess. I've

got four -- five other brothers and one sister.

THE COURT: So, what -- they all got

raised by your parents?

THE WITNESS: Three of them did and three

of us took out on our own. My one brother, he went to

the army and served in Iraq.

THE COURT: Do you have any other

criminal convictions?

THE WITNESS: Felonies, no, ma'am.

Little minor assaults and that was it. Pushed a guy

and got convicted of that and paid a $300 fine.

THE COURT: Okay. When was that?

THE WITNESS: Six months ago.

THE COURT: Okay. Any other times where

you've received probation or a fine or jail time or

prison?

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4 3

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?

6

THE WITNESS: No, ma'am.

7

THE COURT: Do you have -- have you had

8 any depression or anything like that? Any of those

9 type of illnesses?

10

THE WITNESS: No, ma'am.

11

THE COURT: Okay. Any other questions by

12 the State or the defense?

13

MR. HAYNES: Just a couple, Your Honor.

14

REDIRECT EXAMINATION

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

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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Thank you

please.

MR. MOSS: Nothing further, Judge.

THE COURT: Sir, you may step down.

If you will wait outside in the hall,

45

THE WITNESS: Yes.

MR. HAYNES: Your Honor, we will ask the

Court to take judicial notice of a document in the

Court's file titled Coversheet for Evidentiary Records

that was filed on October 7th, 2010. You'll find

there in that document -- in the jacket copies of all

of the documents I just showed the defendant.

THE COURT: Any objections?

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

certified document under seal.

MR. HAYNES: We'll call Walter Anderson.

THE COURT: Okay. Sir, you may testify

from there.

THE DEFENDANT: Okay.

WALTER ANDERSON,

been first duly sworn, testified as follows:

DIRECT EXAMINATION

having

BY MR. HAYNES:

Q. What's your name, sir?

A. Walter Gerald Anderson.

You are, of course, the very same Walter

Q.

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. AC

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

5 back to

late 2001 and early 2002. When were you

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?

15 A. Immediately upon arraignment, whenever --

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?

20 A. Yes, that's correct.

21 QDid you have regular contact.with him?

22 A. Yes, I did.

23 Q.

You all were -- he was at his office, you

24 were irljail; is that correct?

25 A. That's correct.

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q. You could not leave the jail?

A. I could not leave the jail.

Q. Did he come to visit you in the jail to talk

to you about the case?

A. He did when I requested him, yes.

q. Between June 2001 when you were arrested and

March 2002 when the case went to trial, how many

meetings did you have with Mr. Jarvis?

A. Outside of the court proceedings, two.

Q. All right. And in that same period of time

from June 2001 until March 2002, how many times were

you in court with him?

A. Well, that's hard to say because the first

trial was declared a mistrial, and then we started a

second trial. So, however many proceedings it took, I

mean, to do that. I don't know an exact amount.

q. Were there any pretrial hearings before the

first trial that ended in a mistrial?

A. I want to say yes, but I don't know for sure.

Q. Okay. How long did the first trial go before

the mistrial was declared?

A. We picked a jury, and we were in a pretrial

proceeding and the bailiff marched me before the jury

in chains, and that's what declared the mistrial.

q. That's what caused the mistrial.

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48

A. Right.

q. That was only a day -- less than a day.

Right?

A. Yes.

q. And how long after that did you have the

trial that took place in March that actually went to a

verdict?

A. That trial lasted one day outside of picking

the jury. So, we picked the jury, and then we had a

one-day trial.

q. Okay. What I'm wanting to find out is how

much time went by between the mistrial of the first

f. +--uo t-vi»i that was finished, case and the beginning of the trial tnat

" A. Not much. I think we had one brief hearing

to -- to solidify any pretrial motions like discovery

or -- or other things, and -- and that was it.

q. All right. So, how long do you figure you

had spent with Mr. Jarvis before the trial began in

this case on.the 20th of March 2002, total? The two

meetings in the jail and all of the rest.

A. Not long, because the proceedings,

themselves, were - were brief. They were just to,

like Isay, put on record certain things, and then out

the door I went. So, as far as strategy meetings, we

didn't really have much time for that. I would say

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two and that -- it wouldn't be no more than that.

Q. Can you tell me how long those meetings were?

Can you give me any feel for that?

A. It's hard because I remember stressing things

to Donnie Jarvis that I wanted him to do that even

still didn't get done, but he seemed to know what he

was doing, so I left it in his hands. I would

probably say maybe an hour all total.

Q. Both meetings.

A. Combined.

Q. Total?

A. Combined, yeah.

Q. How about letters -- did you guys exchange

letters?

A. Yeah -- we didn't -- all I ever wrote to him

was that I needed to see him, and then I seen him

before the proceeding.

Q. All right. So, you didn't send him any

substantive letters about the case?

A. No.

Q. Did he send you any substantive letters about

the case?

A. No.

q. Did you guys talk on the phone?

A. No.

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• *n

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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A. I never seen it.

Q. Is there anything else that you want to say

to the Court or for the record about this situation

about what you knew and what your attorney knew about

Mr. Barnett's prior criminal history?

A. Only that had I known he had a criminal

history, I, myself, would have testified and told the

jury that I did not kidnap that man. Yes, I had a

gun, but I did not kidnap him. And Donnie Jarvis

advised me against it because I had a criminal history

and he didn't.

Q. Okay. Thank you.

MR. HAYNES: No further questions.

CROSS-EXAMINATION

BY MR. MOSS:

q. What things did you stress to Mr. Jarvis that

you wanted him to do?

A. I wanted him -- in the testimony, Darin

Barnett and myself, both, said before trial that he

stopped for gas, and when he stopped for gas is •

when he came back from the gas station -- from inside

the gas station, he told me he had a car. Right then

we turned around and went back to the taxicab. If

Donnie Jarvis would have went to that place of

business, they had video surveillance of him getting

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out of the cab, going in by himself, coming back, and

getting in the cab. I don't know if they had -- they

had surveillance at the pumps or not, but it would

have put a definite time frame on when this happened

and we could have judged how long it took him between

the time of him selling me a car and actually going to

the police station, because he had a cell phone in his

lap and he didn't use it. And I contested that he

went somewhere else after this alleged kidnapping.

q. Okay. So, basically, the facts were, you and

your son and a third person -- who was the third

person?

A. Enrique Garza. He was a friend of my son.

Q. Enrique Garza. Y'all get in the cab and you

say, Take me to Utah.

A. No.

Q. Okay.

A. No. The boys were running away to Utah and

they were in the backseat discussing it. Isaid, Take

me to Paris,.Texas.

Q. Okay. Why did you have a gun?

A. The boys had a gun. I came to town -- my son

called me on the phone and he said, Dad, I've got a

gun, I'm running away from home. Itold him, Don't

move. Well, I went to town and got the gun from him,

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

Him and Enrique both had two other guns. So, I put

the gun in my pocket, and -- the last time he ran away

from home, I got -- I got reamed out by my wife

because I let him run away from home. I gave him

money and told him, Look -- so, this time, when he ran

away from home, I said, All right, I'm going to take

you to your mom; you tell her you're running away from

home. This way, I don't get into trouble. She was

working in Paris, Texas, at the time, which is why we

needed the cab.

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

came in, said, Take me to Utah, I gotta gun. Right?

And your story was, no, that wasn't the case, it was

just a misunderstanding; I never threatened him with a

gun.

A. Mr. Barnett testified that I didn't do this

right away. He said that I got in the cab and -- and

told them that we were going to Paris, Texas. He

says, Well, if we're going past Honey Grove, we need

gas .

Q. Okay.

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

going to stop to get gas. When I got in the car, the

gun had dug into my hip. Before we even got to the

Charla Reamy, CSR, TCRR

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gas station, I told him, Listen, I've got this gun;

I'm going to set it on the floorboard, it's not even

loaded, don't worry about it; I've taken it away from

my son. He said, Well, don't worry about it.

Mr. Enrique Garza testified at trial, didn't

Q.

he?

A. Yes, he did.

Q. Okay. And was his testimony supportive of

your side of the story or supportive of Mr. Barnett's

side of the story?

A. All he testified to in reality was the fact

that he didn't see me point the gun at Darin Barnett

and order him to do anything. That's basically all

his testimony will reflect.

Q. Okay.

MR. MOSS: Nothing further.

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

Honor. The defendant rests on the hearing.

THE COURT: Anything from the State?

MR. MOSS: Nothing from the State, Your

Honor.

THE COURT: 'Okay. Are the attorneys

prepared to make their final remarks at this time?

MR. MOSS: Yes, Judge.

MR. HAYNES: Yes.

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THE COURT: Okay. You may proceed,

Mr. Haynes

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

ask the Court to grant relief in this case. It's

clear that the credibility of the witness Barnett is

critical to the verdict that was attained in this

case, and it's" also clear that he deliberately misled

the jury about his prior criminal record. And because

Mr. Anderson's attorney didn't have the information to

effectively cross-examine him, that that was allowed

to stand, and if it hadn't, then we can't say beyond a

reasonable doubt that the verdict would have been the

same .

Mr. Anderson has a defense in this case

that he was persuaded not to put on because of his

:riminal record, and if the true nature of the prior c]

witness Barnett had been shown to the jury, that

defense could have been put on. That's resulted in a

miscarriage of justice in this case, Your Honor. I

understand how hard it is to recommend that a case

that's eight years old be reopened. I understand all

that. But I know the Court knows that a fair and

correct result is more important than the convenience

of it, and we're asking, because the evidence supports

it, for relief to be granted.

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MR. MOSS: Your Honor, the State would

request that the relief as stated in the motion be

denied. The defendant has filed a motion for new

trial based on newly discovered evidence. He has not

shown that that evidence was not available at the time

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

was on notice that there was criminal history out of

the state of New York. He could have investigated

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

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

provide that information. He could have forced the

judge to have the State provide that information

rather than just make a motion.

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

motion is currently presented, it is untimely and the

Court doesn't -- actually lacks jurisdiction to grant

his request for new trial based on newly discovered

evidence because he has filed it some eight years

after his conviction in this case when the Court no

longer has plenary power over it.

The defendant has previously filed a writ

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

raising some similar grounds of ineffectiveness and

actual innocence, and the Court in that -- court of

criminal appeals, in that case, denied his request

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without a hearing; and, as a result, the Court would

request -- or, the State would request the Court to

deny the defendant's motion for new trial based on

those issues.

THE COURT: Your understanding of the

date when that writ or habeas was raised?

MR. MOSS: I believe it was 2004, but I

could be -- 2006. The relief was denied without

written order by the court of criminal appeals on

March 22, 2006, in Case Number WR-61,082 -02 .

THE COURT: Okay. Mr. Haynes, any

response to the State's procedural point regarding the

fact that there's been one bite at the apple, in

essence, and that there would have been information

about that that makes this request untimely?

MR. HAYNES: Well --

THE COURT: If taken as a writ as opposed

to a motion for new trial, which is untimely.

MR. HAYNES: We've got -- we've got

procedural problems in this case for sure and no one

can back away from that. But the Court took this

matter into an evidentiary stance in this case by

treating this as a writ, and I think the evidence

shows that Mr. Moss's predecessors were not as careful

as they should.have been about turning over the prior

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criminal record of Mr. Barnett to Mr. Anderson's

lawyers. And I'm afraid it shows that Mr. Barnett was

actively deceiving the Court in March 2002, and I dare

to say this Court here today when he minimized over

and over again what his prior criminal record in the

State of New York is, and that just creates such an

unlevel playing field that, in the interest of equity

and fairness, we're asking the Court for relief.

THE DEFENDANT: May I respond to --

THE COURT: No.

MR. HAYNES: Your Honor, I might point

out to the Court that there is a federal writ pending

for :06-CV-204 in the Eastern District of Texas, and

what that Court did was refer the matter to the

magistrate, Judge Mazzant, who placed the case -- the

federal writ case on a suspended status until the

defendant's -- the State remedies had been exhausted,

and he's relying on that authority from the federal

court directing him to exhaust the State's remedies to

come before this Court today.

THE COURT: When was -- when did that

occur?

MR. HAYNES: The case was closed on the

13th of July, 2009, and that's when this order was

entered. To get you a paper copy of it would require

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me to go online and get you a copy. I could certainly

do that, but not today. I can send it in the mail if

the Court wants to see it.

THE COURT: Anybody have an idea of what

the federal court thought was still available?

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

-- this is just -- I don't -- Judge, I don't know how

-- I guess you're probably pretty familiar with the

federal court's electronic-docketing system. They

send out these little docket reports, and then a

document is associated with it. In order to get the

document, you have to go online and download it.

That's what has all of the details in it. I've got --

if you want to see the docket text, Your Honor, I've

got it here.

THE COURT: No. I trust your statement,

but for them to indicate they thought there was

something else that could be exhausted is --

MR. HAYNES: They don't specifically say

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

very concerned about the details of State procedure.

THE COURT: The Court's position is that

-- two things. Procedurally, first this is an

out-of-time motion for new trial. Out of an abundance

of cause, I allowed for the attorneys to investigate

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it on your behalf -- basically your attorney

investigate it on your behalf, Mr. Anderson. But it's

my opinion that the previous writ would have been the

appropriate vehicle to raise this, and you don't get

multiple bites at the apple on raising writs. So, I'm

going to deny your request -- your requested relief.

So, if the attorneys would prepare an

order reflecting the fact that, in my opinion, he has

exhausted his writ request and then, perhaps,

Mr. Anderson can use that to refer to the federal

authorities to see if they have anything that they

have the ability to address. But then -- at least it

will be that type of ruling here; and, of course, he's

got the court of appeals ruling on the previous

matter.

MR. HAYNES: Thank you, Your Honor.

MR. MOSS: Yes, Your Honor.

THE COURT: All right. Gentlemen, if

you'll just get an order due date and order status

date .

MR. MOSS: I will.

THE COURT: I understand you'll be prompt

about it, but we'll get a date certain where that will

come 'in.

Mr Anderson, I appreciate you being

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61

here. We will release the bench warrant, so you'll go

back, but you'll have a copy of that order coming to

you as soon as they get it. Okay?

THE DEFENDANT: Sure.

THE COURT: All right. Thank you, sir.

(End of proceedings.)

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62

THE STATE OF TEXAS )

COUNTY OF FANNIN )

I, Charla Reamy, Official Court Reporter in and for

the 336th District Court of Fannin County, State of

Texas, do hereby certify that the above and foregoing

contains a true and correct transcription of all

portions of evidence and other proceedings requested

in writing by counsel for the parties to be included

in this volume of the Reporter's Record, in the

above-styled and numbered cause, all of which occurred

in open court or in chambers and were reported by me.

I further certify that this Reporter's Record of

the proceedings truly and correctly reflects the

exhibits, if any, admitted by the respective parties.

I further certify that $279.00 is the cost for this

volume of the Reporter's Record and will be paid by

Fannin County;

WITNESS MY OFFICIAL HAND this the 14th day of

November, A.D., 2011.

CHARLA

Chu/iK

REAMY, Texajs/ CSR 63 61

Expiration Date: 12-31-12

Official Court Reporter,

336th District Court

Fannin County, Texas

Bonham, Texas 75418

(903) 583-2863

Charla Reamy, CSR, TCRR

(903) 583-28 6 3
Scanned Dec 14, 2010

STATE OF TEXAS

WALTER GERALD ANDERSON

CAUSE NO. 20118

§

§

IN THE 336* JUDICIAL

DISTRICT COUH?

FANNIN COUNTY,

ORDER

After consideration of the evidence presented, and the arguments of theDefendant'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

Cause No. 20118

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 ofFannin 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 ofCriminal 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 yearlimitation 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.

PRAYER

Thatthis court grant me leave to filean Out-of-time Petition forDiscretionary Review to

complete process theFederal Courts demand to overcome a Procedural Barcurrently in

place. Thank you.

SWpJ oJ/W u*'^ °^
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