);2/ 454 H>,~/?,»;.:C>, /;2_,
RECENED \N

De¢. 2.6, 2014 COUmc>Fc;R\M\NALAPPEALS cary wayne Barnes
l TDcJ' -ID 3'13814 _
jAN()ZZUE 1100 FM-655,`Ramsey

Rosharon,-Texas 77583

TEX'AS couRT oF cRIMINAL APP - mem
cLERK, ABEL ACOSTA ' AD€\%QU»
P.o. Box 1'2308 .
cAPITIoL STATION'

Austin, Texas 78711 Re; Wr_ 12' 658_+8'

19, 20 and 21;

Dallas Tr. Ct. No."s-
'F-80-016530-J
'F-8l-01027-J
F-Bl-OllOS-J
F#Sl-OZSIB-J

Dear clerk;

Enclosed Please fine the movants NOTICE OF APPEAL pursuant
a Brief with the attachments the ehhibits showing that the
movant requests NOTICE OF APPEAL to the Chapter 64.04`h0tion
for dna testing as required by the Texas Code of Criminal
Procedures, ; in a showing that the movant was Granted DNA
testing by the convicting court; _ `
Through no fault of the Movant the court tested the evidence
of a unrelated set of offenses, evidence that has nothing to
do with the crimes to which the movant was convicted.
This evidence was filed in the crime Lab (6) monthe prior
to and before the commission of`the offenses to which movant
was comvicted; l v
The movant has been impeaded from the ` actual crime
Scence evidence by a court ORDER filed in the Convicting court
on June 25, 2009 by said Judge; This Sealing of the ' files
and records 'has a 'Equaltable Tolling , as such has ‘impeaded'
the filing of the movants Habeas application until these
files was mailed to the movant on May 16, 2014, see habase
application pending page 7.
Dus to the¢nature of the confidential and sealed files
movant request that a copy of this document be mailed to the

Dallas Clerk;
Gary Fitzsimmons
frank crowley court Building LB 12

Dallas Texas 75207-4313 ‘Cwqh § §§XMVV[\QC?
Res ect lly Submitted;

Dec.26, 2014;

IN THE TEXAS COURT OF CRIMINAL APPEALS

Gary Wayne Barnes Sr, Appeal from the Dallas

movant, county , Criminal District

VS. Court Three: z

Order denying TNA Testing;

THE STATE OF TEXAS
CCA NO. WR_-12,658-18,l9,20 and 21

, ,\
l`_*§ "_'.1‘

¢0|€0160|¢¢0?¢09¢05¢0?

NOTICE OF APPEALS

TO THE HONORABLE JUSTICES:

I Gary Wayne Barnes Sr. the Pre SE movant in cause number
of Dallas county convictions in indictments F-80-01653OIJ
F-Bl-OllOS-J, F-81-01027-J and F-81-02518-J request to file
an appeal in the ,above numbered causes in the Article 64.04
findings as the court1 ORDER is signed on the ll,th Day of
Dec. 2014.

The movant files notice of Appeal Pre Texas Code of Criminal
Procedures Chapter 64.04 supported by his contemporaneously

filed Memorandum and applicatant attachements and Exhibits
in support of the Writ of Habeas Corpus presently pending
in the above entitled petition numbers;\

Per Texas Code of Criminal Procedures chapter 64,04 by
use and by reference thereto the materials contained in movant's
attached MOTION FOR DNA TESTING , contemporaneously filed
Memorandum in Sopport of the Writ of Habeas Corpus with movants

Attachements and Exhibits reflects the following;

On Feb. 20 2009, the movant was granted DNA testing and
testing’ was premitted by the DPS ,with the results released
on May 13, 2009. The court hheld a result hearring on.June
8, 2009 and durring the hearing it became apperrant that thur
no fault of the movant the S§tate_ had tested the "Wrong evidence";

1. the actual crime scence evidence was withhheld and
replaced with evidence of an un-related set of offenses;

2. The evidence that was tested is not the actual crime
scence evidence for offenses that was committed on July 4,
1980 as the SWIFS , crime lab files presently shows the evidence
tested in file numbers 80-p-1632 and 80-p-1635 was filed

Appeal Page l.

'\

w

in the SWIFS crime Lab in the Month of Feb 6, 1980 (6) months
prior to and before the date of the commission of the offenses,
being committed. '
_ 1 .

In this case the movant will establish Equatable Tolling
of extraordiniary circumstances justifying the delay in obtaining*
the newly discovered, newly presented evidence in the presentation
of a 'ORDER' of the convicting court/ having all records and
files sealed.

The evidences records and files was Ordered Sealed by
the convicting Court Judge on June 25, 2009 which has worked
to inpead the movant from obtaining the withheld actual crime
scence evidence. _

On June 8, 2009 the movant filed an objection in opeH court
that the court take Judicial Notice- concerning 'the findings
of the results of the chapter 64404 as the evide§ce was faulty
and not the aactual crime scence evidence as the resul§s was con-
tridictory to the sworn testimony and the statements of the
victims that prior to the offenses being committed she had

never had a sexual intercourse with a male or a female§!

The Results in the test results states that the DNA pro-
files of a un-Known Male and Three un-known and un-identified
females profiles which is un-explainable in a case where the

victims sworn statements and trial testimomy are a contridiction

4of the findings.

These findings along whth the movants knowledge in
knowing that he did not commit these offenses. presents issues of-

the evidence is questionable:

II.

On June 8, 2009 at the result finging hearing
a women in the court gave a note to the Bailiff to give to the
movant stating that the evidence was wrong, not the actual
crime scence evidence. This was reflected in the movants Objections
and request for Judicial notices l

The movant, was not allowed to file a Notice of appeal
as the Judge rushed to seal the files as being confidential and

by the same stroke of the pen the Judge approved an order for

Appeal Page 2.

the movant's court appointed attorney to withdraw as the
attorney of records. (see Movants Habeas Corpus application
page 7.)
The movant points to the case in McQuiggins V. Preking'
133 S. ct. 1924 (2013) _where the United States Supreme Court
has held that a claim of actual innocence if proven is a gateway
by which the movant can raise a claim of actual innocence.
In this Appeal the movant can show the exceptional
set of circumstances in the convicting court filed a "ORDER"
to Seal the Files, Records which has 'impeaded the movant from

obtaining the files and the records that was mailed the movant'
on May 16, 2014 in a un-marked,.no returnable postage legal

envolope, mailed to the prison mail room that has been recorded
as questionable legal mail with no-returable addresssnot on
movants mailing list. 1 `

The SWIFS lab files was mailed to the movant, and the
movant did not and has not violated the court order, making
copies of the files, but use the files as movant's Attachements
and Exhibits A thur L'in presenting the files in the movants _
Memorandum in Support of the Writ of Habeas Corpus showing that the
actual crime scence evidence has not been presented to the
court._ 4

The movant has been convicted of offenses that was committed
on July 4, .1980, but the evidence that has been presented to
the `court as states Exhibit 3 and tested by the DPS in file
numbers 80-p-1632 and 80-p-l635 was on file in the SWIFS crime
lab Feb. 6, 1980 (6) months prior to the offenses was committed.

The police report in the Dallas' police Department
files of number #307064-1 is also a ~filing that was filed
in that department in 'the month on feb, 1980 and is not the
case in the same transaction of the offenses committed on July
4, 1980 in the Dallas Police Department filing number of 506950~L

same tranaction .

III.
In the interest of justice in a miscariage of
justice in the' conviction ~of a innocence person where the
actual crime scence evidence has been withheld this court isv

Appeal Page 3.

in the position of a review of the files a review to which
the movant has been impeaded from presenting &from showing

due to the June 25, 2009 court order to seal the files as
.confidential.

The movants Attachements and Exhibits clearly shows
by McQuiggins V. Perkins, clear and convicing evidence that
the actual crime scence has been withheld: 1

In the state not presenting the actual crime scence evidence
at the movants trial has deprived the movant of his constitutional
right to due process and the right to legal sificient evidence
to support the verdicts, judgements and the sentences.

A review of the files in this case will show that the convicting
court has already Granted the movant's Motion for DNA Testing
on Feb. 19, 2009 (see Attachement and Exhibit A thur L and

attached here as Exhibit a) through no égbi of the movant

the state has tested the wromg evidence.

The Judge of the convicting court has stated in the records
that the movant has established that he mis'entitle to the
requirments as set of in the statute in requesting DNA test-
ing as authorized by Chapter 64. Ol, 02,and 03; (a) (2).

The movant can now show 'this court by a review of the‘

filing systems of the Dallas Police Department and the filing
systems of the Southwest Institute of Fresence Science Lab

that the actual crime scence evidence for the offenses that
was commiytted on July 4, 1980 is not the evidence that was
submitted for testing in file numbers 80-p-1632 and 80-p-

1635 tested in DPS file number LlD-184098-2 with the results
of May 13, 2009.

Under the holdings of Brady V. Maryland, the movant
is actually innocence when the actual evidence has been withheld
as the movant has been deprived of his constitutional rights
to the fundmentals of due process.

Clear and convincing evidence is eHhibited in the
filed report of the SWIFS- lab attached here as Exhibit B,
dated July 24, 2008 showing thai the C. Jordan file has the

same file number as the Y. Oviedo file as Fe80501027-J as this

Appeal Page 4.

same number is submitted to the Texas Department of Public

Safety crime lab evidence record sheet 3/6/09 showing the Same
evidence file number of F-81&01027-J , that is the actual evidece
of the file in the SWIFS tested evidence of 31-016530-J. this_

will now become(exhibit C.)

ahs mart has gssamsd to unsmdsarauoammgaridsna usta;psrcsue
wsadtrsmss: v

The movant request an appeal of the above facts and issus
as . the actual crime scence evidence in the above mentioned
files sits at the SWIFS crime lab that proves that not only
was the wrong evidence tested but the wrong evidence was present
-ed at the movants trial, under the clear and convicing standards
no jury in the world would have convicted the movant, if it
had been known that the evidence was the evidence of a crime
that has nothing to do with the offenses to which the applicant
was on trial. `

The evidence is no longer the issue in this case the court only
need to petition the files of the` SWIFS CRIME LAB and make a deter-
manation a request for a AFFIDIVIT OF THE FILING SYSTEM- a Question
of what is the filing Date of the evidence in SWIFS file no. 80-P-
1632 and 80-p-1635s

` A request for a AFFIDIVIT OF THE FILING SYSTEM Of the
Dallas Police Department in the Police report of #307064-L is this
file number for a offenses reported on July 4, 1980; is condict-
ionary of a filed case in file number # 506950-L reported on July
4_ 1980‘ in the same time and place.

The movant make these' requests as the Judge of the
convicting court still has a pending Order that the-files are
sealed as confidential and the movant is proceeding in Pro-
se and is impeaded by such information being intentionally
done when the movant made his objections in open court;

This 'impeadment by court order' is movants request to
the united stated court ofv Appeals for the fifth Circuit in
the application to premit the filing of the seeessive 28 U.S.C.

§ 2254 in requesting equitable tolling due to the impeadment
Of the Court "ORDER to SEAL THE RECORDS.

Appeal Page 5.

\r "1 `

 

 

 

 

, ExHIBIT A §.\
SOUTHWESTERN ‘ _ ' ` ry _
INSTITUTE OF FORENSIC_ SCIENCES n
AT DALLAS .
_ _ » F\LED Ju\_ 24 2003
Forensic Biology Unit 523;]):/1[1;(;:€;;;:";;;?51'.ivé ' - v
July _11, 2008 __
Investigating Agency: Al-ny Murphy " Laboratory #: ~ 1801)29'7 1
-. Dallas County District Attorney’s Ofiice Age"°¥"#‘ ' "5589101,7`
" Appellate Division _ Ca“‘e #‘ ` F80~01027-J
133 N. lndustrial Blvd, LB 19 C°mP'ai“a““ Cynthia'.lordan
Dallas, TX 75207 ` Defe"da”“ - Gary Wayne Barnes
, ' Offe““’= Sexual Assault

 

This report is in response to your request for the search of biological and trace evidence in this
laboratory’s evidence storage areas for the purpose of potential post-conviction DNA testing.

EVIDENCE:

Received by B. E. Harwood from PMH OB~GYN/EOR locked cabinet on Deccrnber 3, 1980:

Kl. Vaginal swab in saline
_ ' KZ'. Vaginal smear on slide
1 K3. _ Blood sample from victim
K4. Pubic hair combings -
K5. Pubic hair cuttings
K6. Anal smear on a slide

Submitted by W. R. Bricker on December 5 , 1980:

K7. vBlue jeans
KS. Bedspread

RESULTS.:
` Item K2 and a slide made from item K7 Were located in this laboratory’s storage areas'.

ltems Kl', K3, K4, KS, K6, K7 and K8 Were not located in this laboratory’s storage areas

Analystlnitials< § X\ii’i/

  
 

fare given

 

 

n

Vicki Hall
Trace Evidence Exarniner ,
Direct Line:,j 214-920-5948

. " Fax: 214-920-.5813
E-ma`il:vhall@dallascounty.org

 

 

Page 2 0f,2
FL# 80P29»'/'1
July11,2008_

lide made from item K7 vvill remain in laboratory storage until further

Qm t> Uelw\ncev\
TaraD Johnson, M S.
Forensic Biologist ll v
Direct Line: 214- 920-5996
Fax: 214- 920- 5813 `
E- mail: tdjohnson@dallascounty. org

cc:. Dallas Police Department, Crirnes Against Persons Division»

 

 

Analyst Initials;_ § if Ui}/

 

 

Texas DPS Crime Laboratory Service Evidence Record Sheet

03/06/09

11;12AM

 

Date Received

 

[_P Laboratory Case Number

NIB

L1 D- 184098- 02
QD

TE __]Resubrnission l_\Additional Evidence

 

 

3

 

C@N\i \C~ @N |l|||l\lll|lil|i||li|li||||||i||i|l||

 

 

 

 

Date Comp|eted A: 5 I(p ’D"] , gm
Section & Analysis by `i>i\]A ~')`(i 1 / -
Reviewed: Tech: M+i 5/[§0‘1 Adm: %5'/[(, 'DQ EXHIBIT B
Report N|ailed; '

Date Comp|eted B: "ln PerSOn

 

Section & Analysis by

 

 

 

 

 

 

Reviewed: Tech: Adm:
Repo_rt l\/|ai|ed: @DMW%#(W%
Date COmpl€i@d CI v James Hamm'()nd
S`ection & Ana|ysis by
Reviewed: Tech: Adm:

 

Report l\/|ai|ed:

 

 

. .. n t
Received by Patricia Brannont¢/'?{/’M_Miw\’

 

Description;

Proper|y Sealed 9x12Ye|i

/

Transfer Log (for court, return from court, at court,

ow Enveiope;

bar code unavailable etc.)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Date To From Items\Exhibits\Comments
Forward Date To: . Items:
U.S. |\/\ail By
___, in Person
r____.,___. UFS _A
Raun~iuale ""Aii i_|iiems~;
__ U.S. N|ai| v By
|n Person
- _ . `_- ups
Des`truction Date, ' i\/lethod Transponed by: Wiiness Witness
' ' __ Burning _J Hand Carry
___ Flushing ___ Other:
Contractor
___ Burning __ Hand Carry
__ F|ushing _____ Other:
__] ExceSS Contractor
Court Record (Whenever evidence is introduced or otherwise transferred at the courthouse, use the Transfer Log above)
Date Witness T/A City CDFO Outcome i\/li|es Hours

 

 

 

 

 

 

 

 

 

 

 

 

Notes
CaseFile information entered: Submitting Offic

er-Agency- -County Offense Date- -Agency Number

 

 

LAB/c-zz (Rev. 06/05>

\l

 

s1x

 

 

l TEXAS DEPARTMENT OF PUBL|C SAFE'
CR|ME LABORATORY SERV|CE l

Laboratory Submission Form

   
  

 

Agency Case Number F81-01027, F81-01105 F81-02518
offense AG`G RAPE,`AGG RAPE, BuRG HAi_

Date of Offense 07-04-1980
County of Offense Dallas County

 

Agency l Dallas County D.A. geit§ence Rec,'d

 

Case Contact Person`

Name Amy Murphy n Tiile Assistant DistrictAttorney

 

 

 

 

 

A“§j:§;§ 133N industrial B`ivd., i_e19 phone 214_653_3631 Fax 214_653_3643_
C' ,State Em 'i
zii)'_€ode Da"as' TX 752°7'4399 . Addie§; AsMuRPHY@DAi_LAscouNTY.oRG
Suspect Vlctim Name(Last,FirstMlddle) Race Sex DOB DL#/SS#I|D#

 

le l:l Barnes, Gary Wayne M B_ 101/23/1954 SID 02270491
[1 El Q”Y*( Fsi-oioz'/ - Agg Rape) -

l:l le R__»E“.‘ F81-o1105 - Agg Rape)
l:l El R*.iq,i=si-ozma - Burg Hab)

Description of Evidence Submitted

 

 

 

 

 

 

 

 

Exam Requested

 

 

 

 

 

 

 

 

Exhibii# :f"|'t"‘__:$;- Description ovaidence

1' y 2 1 Portion of SWIFS FL#08P1542 - buccal see Ct Order
swab of Gary Baijnes
SW|FS item K2 - FL#80P1632 Vaginal _

2. 3 1 _Smear from Victim Y” Y-*?Om ._ __ ._ . see Ct Order

- ~ - swiFs item K2 - 80P1635 vaginal v E` ll l n ' `

3' § 1 Smear from victim E“ h _ w See ct order

U

4.

5.

6.

 

 

 

 

 

 

 

 

For some non-drug c'ases, it may be appropriate to attach a copy of the offense report.
P|ease include brief case synopsis, unusual examination(s) requested, and/or relevant case priority information.

See Court Order

Are known standards (blood, saliva, h`air, inked prints, clothing, fabrics, etc.) submitted for comparison? l:]Yes ®No
Have any of these exhibits been previously analyzed by a |aboratory? l:lYes ENo Whi_ch ones? `

 

 

 

 

\

TEXAS DEPARTMENT O|\~' PUBL|C SAFETY

DPS GARLAND CR|ME LABORATORY
350 WEST |H 30
GARLAND, TEXAS 75043-5998
Voice 214-861~2190 Fax 214-861-2194

   

COMMlSSION

LAMADR|:§¢CMORTH n _ May 13, 2009 _ y _ '- _ ALLANB.PoLuNsKY,cHAiR
. , _ f C.TOM CLOWE,'JR.
` . - ~ AnAaRowN
Sewiogv\DN/\ Rep<>rf » a carriersle
Assistant DA Amy l\/lurphy -
Dallas Co. Appe|late Division
133 N. lndustria| Blvd.l LB19
Dallas,- Texas 75207
Laboratory Case Number ` Agency Case Number . Offen_se Date
L--iD-18409_8 ` F8101027 07/04/80
Suspect(s) - Vi_ctim(s) -
Barnes, Gary Wayne _ O” Y* c ’~ ' 7
v - ` l*,» 1

Offense: Sexual Assault
County of_Offense: Dallas (057)

Evidence Submitted - . _
ln person by James Hammond on February 20, 2009:
1. Buccal swabs from Gary Barnes `

 

ln person by James Hammond on l\/larch 6, 2009: v

2. Buccal s`wabs from Gary Barnes `/: ’ . '

3-1. |fem K2 vaginal smear slide from*sYH;;§-»(Previously stained)

3-2 Item K2 vaginal smear slide from \.'__.~”~(' .'ns+-'iined)

3~3. item K2 vaginal smear slide i`ron~ `“D*{i insta?nedl

4. item K2 vaginal smear slide from MU(Previously stained)

Requested Analysis . v
Perform Post-Conviction DNA analysis on the items submitted in accordance to the Court Order F81`-
01027~QJ, F81-01105-QJ, F81-02518-J in the Criminal District Court Number 3 of Dallas County, Texas.

Results of Analysis'and |nterpretation _ _
Spermatozoa, semen specific constituents were detected on the two previously stained vaginal s"mear_
slides (ltems 3’-1 and 4). Apparent cellular matter was detected on the two remaining vaginal smear
slides (ltems 3-2 and 3-3). No apparent hairs or fibers were detected on the vaginal smear slides.

‘An attempt was made to extract DNA from evidentiary samples relating to this case Both bucca| swabs
from Gary Barnes were extracted by a method that yields DNA. The vaginal smear slides (ltems 3-1, 3- _
2, 3-3, and 4) were extracted using a method designed to yield two fractions: a fraction enriched for DNA »
from non-sperm cells usually associated With the victim (the epithelial cell fraction), and a` fraction

enriched for DNA from sperm cells (the sperm fraction). DNA typing was performed on these samples
using the polymerase chain reaction (PCR). The following loci were examined: 0881179, D21811,

ACCREDITED BY THE AMERICAN SCCIETY OF CRIME LABORA TORY DlRECTORS - LAB ACCREDITA T/ON BOARD
4 ' ' COURTESY - SERV|CE - PROTECTION

»~
.4_"

` l Laboratory Case Nu;mber 4 Agency Case Number Offense Date
- l_`lD-184098 ' ' _. '/ F8101027 07/04/80

D78820, CSF1PO, 01381358, THO1, D138317, D168539, DZS1338, D198433, vWA, TPOX, D18851,
Amelogenin, 058818, and FGA. . ' v v `_
The partial DNA profile from theraction_of the first vaginal smear.s|id_e, (ltem ;3-1) is`___conslstent~__ , _'
' with a mixture from G`a`ry' Barnes an_g:_;._S_:Qm.€.,,l;lj]l_<_nown_individual.` Gary Barnes cannot»`be excluded as a

v contributor to the stain at the loci D881179, D38'13`5'8, TH01, D13$317, 0163539, D1'98433,`vWA, - \

b _ TP_OX, Amelogenin, D58_818, and F_GA. At these loci, the probability of selecting an unrelated person at-
random`who could be a contributor to the sperm fraction of the vaginal smear slide is approximately 1 in

_ 5.679 million for Caucasians, 1.in 6.789 million for Blacks, and `1 in 1`.038 million for Hispanics. The

l approximate world population is 6.5 billion.

The partial DNA profile from the epithelial cell fraction of the first vaginal smear slide (|tem 3-1) is
consistent'with some unknown female

'- The partial_DNA profile from the.action of the second vaginal slme_a¢r_slide (ltérn 3-2)_is consistent
b with a mixture from Gary Barnes and some unknown individual Gary Barnes cannot be excluded as a
contributor to the stain at the l`oci D881179, DZ1S11, D`/SBZ_O`, D381358,‘ THO1, D13S317, D1QS433,
- vWA, TPOX, D18351, Amelogenin, D53818, and FGA. At these loci, the probability of selecting an
unrelated person at random who could be a contributor to the sperm fraction of the vaginal smear slide is
. s approximately 1 in 30.84 million for Caucasians, 1 in 46.15 million for Blacks, and 1 in 7.358 million for-
` Hispanics v .

The partial DNA profile from the epithelial cell fraction of the second_vaginal smear slide (ltem 3-2) is
consistent with the same unknown female _ . -

The partial DNA profile from the sperm fraction of the third vaginal smear slide (ltem 3-3) is consistent
with a mixture from Gary Barnes and some unknown-individual Gary Barnes cannot be excluded as a
contributor to the stain at the loci D3S1358, D13S317, D1QS433, and Amelogenin. At these loci, the_
probability of selecting an unrelated person at random who could be a contributor to the sperm fraction of
the vaginal smear slide is approximately 1 in 92 for Caucasians,'1 in 79 for Blacks, and 1 in 74 for

Hispanics. _ l l

The partial DNA profile from the epithelial cell fraction of the third vaginal smear slide (ltem 3-3) is
consistent with the same unknown female

The partial DNA profiles from the sperm and epithelial cell fractions of the final vaginal smear slide (|tem
4)'.~;is consistent some other female Gary Barnes is excluded asa ccntz‘ibutcrto the sperm and epithelial ‘
cell fractions of the vaginal smear slide

The four vaginal smear slides (ltems 3-1, 3-2, 3-3, and 4) were depleted during analysis The remaining

DNA extracts and the remaining samples of the buccal swabs fro`m'Gar'y_,Barnes (ltems‘1 and 2) will be
stored frozen to preserve the biological constituents

For comparison purposes please submit known specimens from the victims Contact the laboratory for
instructions on the proper collection method for additional evidence ' ’

We are unable to retain this evidence Please make arrangements to pick it up at your earliest convenience

i
J mes lchols
' P’ rensic Scientist

o v _
Texas DPS Garl_and Laboratory

Page 2 of 2 ' 05/13/09

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il

SOUTHWESTERN _
INSTITUTE OF FOREN_SIC SCIENCES f
AT DALLAS

EXHIB§T c

 

5230 Medical Center Drive

_Dauas, rean 75235 FKED JUN l
- 1 5 200
9

Forensic Biology Unit

April 8, 2009

 

investigating Agency: Michelle M()Or€ n LaboratOry #1 80P2971

Dallas County Public Defender’s New FL: 081)1542
` l)$f;ul:\?. Industrial Blvd., LB 2' ' Agency #: 4 558910L
Dallas, TX 75207 Cause #= F80-16530-IJ §
l Complainant: Cyl‘ltl‘lla~ JOI`dal'l
_~ _" *` * _ ***"*___ “`Tde“mBnT:“**`GIy'B'arnes`"_ ___'_" _"_`
Offense: Sexual Assault

 

EVIDENCE:

Received by B. E. Harwood from PMH OB-GYN/EOR locked cabinet on December 3, 1980:
K2. Vaginal smear 1

Retrieved from SWIFS lockbox on September 9, 2008:
(08P1542) l. Buccal swab standard from Gary Barnes

RESULTS:

Portions of the following stored samples Were subjected to a chemical process to extract
deoxyribonucleic acid (DNA):

KZTl. SWab_bing of vaginal smear
(08P41542) ~l. Buccal swab standard from Gary Barnes

DNA Was extracted from sample K2T1 (swabbing of vaginal smear) in a manner designed to
yield two fractions: a fraction enriched for epithelial cell (female) DNA; and a fraction enriched
for sperm cell (male) DNA. On occasion, the differential extraction method does not completely
separate the two types of DNA due to the relative amounts of the two cell types present in a
particular sample

The DNA extracts from the above listed samples Were amplified using the Polymerase Chain
Reaction method, and typed for Amelogenin and the following nine (9) Short Tandem Repeat
'(STR) systems: D381358, vWA, FGA, DSSll79, DZISl l, DlSSSl, D58818, DlSS?) 1_7, and _

Analyst Initials 9 19

EXHIBIT C'

`Page 2 of3 l
FL#80P2971
AprilS, 2009

D7SSZO. Sample (08Pl542) 1 Was amplified and typed for the following four (4) additional STR
systems Dl6SS39, THOl, TPOX, and CSFlPO. '

Sampl_e K2T1 (swabbing of vaginal smear)

Epithelial cell fraction No DNA profile Wasobtained from this _fra_ction'.»

Spermv cellfraction. Sper'rnatozoa were not detected in this fraction.by microscopic
examination No DNA profile was obtained from this fraction

Table 1. DNA Profiles

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

~ ' (08P1542)1. Bucca|
' '_ '_' _STR‘Syste'm' "_' ""'swab't`rom'G'ary"_
Barnes
Amelogenin XY _
_D381358 15,16 `
vWA 15,,17
FGA 21,2`2
D8$1179 10,1-3
D?.lSll 28,30
D18851 ~ 15,16
, D'SSSIS ll,l}
. D13S317 11,12
D78820 10,10
D16SS3,9 9-,12 -
vTHOI ` 7,7
TPoX 8,8
C_SFlPO 11,12
CONCLUSIONS:

<"""/“'r/E$€ /i/Z€
DMA'TEST
KE§ULT§
sH<>Lu//u@ />/\JA

191on /Lé FO/€
§AR>>!¢EA ¢Be/Qx)€§

BTL)S/ /¢l F/QC>F/L€
M&/

 

, z AT//\ié
M:/CM¢H ca w/`¢/
77e / 55 / //\JG

Inasmuch as no DNA` profile was obtained from sample KZTI (swabbin'g of vaginal smear), no
comparisons or conclusions Will be made regarding this sample

DISPOSITION OF EVIDENCE:

Unused portions of the following samples have been stored, and are available for future testing:
KZTl land (08P1542) l. Unused portions of DNA extracts of the following samples have been
stored, and.are available for future testing: K2Tl (epithelial and sperm cell fractions)` and

* (031>1542)1.

Analys_t Initials` §§ `

ExHIBIT c

Page 3 ors
- FL#80P2971
April 8, 2009

ADDITIONAL` COMMENTS:

In the event additional analysis is 'required, please noti® the laboratory as soon as possible
' Courtney"Ferreira
Forensic Biol_ogist ll _
Direct Line: 214-920-_5841 `

FAXZ n 214-920-5813
E'-mail: cferreira@dallascounty.org

- cc: Amy Murphy, Dallas County District Attorney’s Office, Appellate Division

Analyst Initials §§

\ ".

3 Mar 27, 2014

Gary Fitzaimmons
Dietrict Clerk
Frank Crowley Courts Bldg-
133 N. Riverfront Blvd, LB

Dallas Texas 75207 4313

Dear Clerk:

-Enclosed plaese__find for

EXHIBIT D

' l`~`!i .CD
Gary Wayne Barnes ‘ 1~~:"

TncJ-Io #3183142miAPR~3 PH 3=26

     
 

1100 Fn 655, Rams@§§§;¢ez@$§e
nni:€'¥“i&` 4
Rosharon , Te§a `XAS
~ ~ crpurv
77583 "
L
12 1

filing with the Criminal District

Court number Three a MOTION FOR APPOINTHENT OF'INVESTIGTOR,`

Please file the same with the court and return a filed copy

to the applicant: I Thank you in advance for your consideration

in this

above mentioned request:

Reeeect£ully Submitted

Cause Numbers F-81-1105, F>-81-1027 ' ic i ' E D

 
    
  

and F-80-16530 ZUlliAPR‘S PH 3= 26
GarY WaY"e Barnes § IN THE CRI"INAH;¢. -'i.'~-.::J.noiis
` "`iii_‘"i |:?:RK
vS. _ § DISTRICT COURT TH * TEXAS
' _ _ ‘WPUTY
§ OF DALLAS COUNTY TEXA _
THE STATE OF TEXAS _ . §
§
MOTION FOR THE APPOINTMENT OF AN INVESTIGATOR
TO THE HONORABLE JUDGE OF SAID COURT:
Now ~comes- Gary Wayne Barnes, the applicant in the above

entitled and numbered causes a petition in Pro- Se to request
that the court appoint an Investigator where the applicant
has ` requested' the-_appointment of counsel where there are
new facts, newly discovered evidence of the origional filings
systems of the Dallas Police department, Southwestern Institut-~.4
ute of Forecics Science and the office of the Dallas County
Clerks has documents files and imformation of the -dates of
the above mentioned crimes,'police reports , crime file numbers
evidence files and the evidence filing dates for the offenses
to which the applicant has been convicted.
1 I. '

In open court on june 8l 2009 the applicant made
va request 'that the court take "JUDICAL Notice' that the evidence
which was tested was not the proper evidence of the crime
secnce to which the applicant was convicted. The applicant
attempted to point' out that the evidence which was tested at
the texas Department of Public safety No. LlD- 184098, was

not the evidence of the actual :crime scence;

Page 1.

Barnes 2.

The applicant was convicted on Feb, 27, 1981 for the¢
offense committed on July 4 1980, in the Dallas Police Department
file number #SOSQSO-L and #'307064-L for offenses committed July
4, 1980 and the SWIFIS lab file numbers of # 80~P-1632 and
# 80-P- 1635 for the evidence of the offense which was committed

on the date of july 4. 1980. '

This Court in a ORDER GRANTING DNA TESTING Varified
that the evidence was locked in a box science the date of the
offense in a certain chain of coustody.

The State presented at trial Extraneous offenses and evidence
of swiss lab ii 80-1'>-425'93 and 1)1>1) wfile hauser of s 4e29'55~`
L as an extraneous offense being committed prior to and
_before the offense which was committed July 4, 1980.

iThe state presented at trial Extraneous offense and
'evidence of SWIFS lab # 80-80-P-2971 and DPD file number
as an extraneous offense being committed on Dec. '2, l980an
offense that committred after the offense of July 4, 1980.DP¢5‘“'-55`8clm"\'~

The filing order of ` both the n'PD and swiss filing
of the cases before and_after the offense of July 41 1980 proves
that the lab numbers in # ,an_-_e;;@z_ana s ao-P-1635 are not

the actual evidence of the crime scence and that a records
search shows that this ` ence was _gg _filg n at ther SWIFS
lab_p£igr to and before the date to which the July 4. 1980
offense was committed.

II.
The applicant was granted DNA testing on Feb.

20, ,2009 and that testing was prefromed by the DPS lab in
number »LlD-184098 as the filing systems will show that this

is not and can not be the actual crime scence evidence.

Page 2.

Barnes 3.
The filing systems of both the Dallas Police Department

and the files of the Southwestern Institute of Froenics science
labproves that the state has introduced persented and tested

the evidence which is not, was not the evidence of the actual
crime scence- n

III.
The `applicant was convicted in (2) two jury trials where
the State filed it's notice of intent to uses extraneous offenses
and .to present extraneous evidence prusuant to Rules 404 and
__609iof.thre Texas Rules of Evidence and Article 37.07 of the
code of Criminal proceedures.
By the use of this new inrormation that the evidence

has never been presented the ant Jury or to the actual trial
Judge the the applicant has not been given a fair trial and
has been denied due process in a `constitutional meaning of
the actual evidence 'of the crime scence .being presented to

the court and entered upon the recorder

rv_,
The files of both the DPD and SWIFS labs proves

that there is a serious issue of testing the actual evidence

as` this evidence is still on file at the lab in the numbers

filed as ao-p-27a4 and 80~1>-¢2790, that was filed on duly
4, 1930. ' '

This evidence can be tested and this evidence will

prove that the applicant is actusal innocence and that the
victims are the actual victims of the crime to which the applicant`

has been convicted.

Page 3.

Barnes 4,

Applicant request the appointment of INVESTIGATOR in assisting

a review by this court in _determination as to the fact of
the evidence so thatr a Order can be filed that a copy of
the porition of the files of the‘ Dallas police 'Department
and the Southwestern Instutute of Forenics Science Lab be sealed
for the future review of the appellate court when necessary.

Applicant request the appointment of lnvestigator
to preserve and present affidivits to the court of the in Brief
data of the DPD and SWIFS Lab of the filing systems 'that
the correct dates that all evidence was reported and presented
to the lab in accordance 'with the dates of each of the offeenses

was committed as well as the .evidence filed with the lab.

V.

Tha applicant can prove and present the facts
that are related to the issue of the evidence and that the
testing of said evidence proves that the applicant in actually
innocence of the crimes to which he was convicted. In the inter-
trest ofl justice the applicant request that the Judge looku
to the facts look to the filing process of both of the above
mentioned _agencies which shows the the evidence used in the
` convictions was no file in the Lab filing systems prior to and
before the date that the crime was committed. t

Wherefore, premises Considered, the applicant Prays
that this court grant this Motion for the`Appointment of Invest-

igator:

Respectfully Submitted:

Page 4.

Barnes 5.

~ Gary W§;ne Barnes

Pro-Se
#318814 TDCJ-ID
1100 FH 655, Ramsey
Rosharon. Texas 77583

Signed on this the 27. day of 2014

CERTIFICATED OF-SERVICE
A true and correct copy of the above and foregoing document
has been delivered to the office of the Dallas County\Clerks-
officepursuant to the Texas Code of Criminal Procedures on this

the 27 Th day of March 2014by placing the same in the united

States Mail;

Gary Wayne Barnes #318814

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EXHIBIT E

Cause Number’s

F-80-16530'F-81-1105 and F~81-1027

 
  

v §
Gary wayne Barnes IN THE CRIMINAL DIS
1_ § §f£‘i?$aaze mm 27
app lcant: COURT NUHBER THREE OF€AY ‘HHUS
' §§ °Ti§ » `ELCR§{
vs._' DALLAS couNTY TEXAS ;,, \,; IEXAS
THE STATE OF TEXAS § _ "‘ w_~i"l……"r¢:";in£mn¥

§ ,
MOTION FOR APPOINTHENT OF COUNSEL

TO THE HONORABLE JUDGE OF SAID COURTt

Now comes Gary Wavne Barnes» the applicant`in the
above- entitled and numbered cause's and moves the court to'
appoint Attorney to disclose all exculpatory evidence which
the Southwestern 'Institute of Froenic Scence Laborotory has
in it's possession and further that the evidence in the below.
SWIFS files to be obtainedv for the courts review in a determin
ation as to what evidence therein is exculpatory and finally
th§t the court order appointment of Attornev in a review of
this below listed evidence as the applicant has been convicted
in the above stated cause numbers where the evidence which
was presented as the State's Exhibit's is not the actual evidence
of the crime scence-

I.'

`The applicant shouldl be appointed an Attorney as the
applicant was granted UNA testing on Febuary 20, 2009 uneder
chapter 64.03 and the said testing was preformed by the

(DPS) department of Public Safety in number LlD~184098 the

the results was submitted bef¢re this court on June 8, 2009.

Page l.

 

Barnes 25
v II.

A review of the records of the Dallas Police department (DPD)
and the files of the Southwestern Institut of Froensic Science
Labobotory (SWIFS) showsl proves that the State .has introduced
presented and tested the evidence which is not, was not _the

evidence of the actual crime scence.;

III.
The applicantv was convicted in (2) two trials where the
State filed itls intentions to use Extraneous offenses/ Extran-
eoue Evidence pursuant the Rules 404 and 609 of the Texas Rulzs~
of evidence and article 37.07 of the code of criminal procedures,
The Statepresented at trial evidence in -SWIFS file
numbers 80-P-1632 and 180-P~1635 and the (DPD) file numbers
506950-L and 307064-L for offenses .that occurred of July 34, 1980

with indictment's file numbers of F-Sl-llOS and F-81-1027.

The State presented at trial an Extraneous offense
and evidence of SWIFS lab number 80-P -2593 and DPD file
number 482955-L as an Extraneous offense being committed 'prior

to and before the offerns was committed on July 4, 1980.

The State presented at trial .an Extraneous offense
and evidence of the SWIFS lab number 80-?-2971 and DBD?
file number 558910 L , as an extraneose offense that was

eommitted after the offense of july 4, 1980 on Dee. 2, 1980.

Page 2.

 

Barnes 3.'

IV.

The evidence that was tested at the DPS in number LlD-
184098 is not and can not be the evidence of the actual crime
scence.

These are facts that will be shown by a review of the
above listings and filing systems of both the Dallas Police
Department and the southwestern Institute of forenic Science
dated and numbering files.

The SWIFS LAB files shows that the evidence
in files numbers dO§P-ld32 and 80 -P-1635 was on 'file in the
lab _prior toe and before the date of the offense of July 34,
1980. 4 7

`The¢files shows that the extraneous in SWIFS files number
80-P-2593 and' DPD file number 482955-L was on file at the
lab before the crime was committed July 4, 1980. and that
there is error in the lower numbers of 80-P-1632 and 80-P~1635
being the evidence of /a crime that was committed on july as
these are numbers of-the Jan-Febuary 1980.

The evidence that has been tested as well as presented
in .this court as exhibits and in the DNA hearing on june

8,. 2009 is not the evidence of the actual crime scence.

vi
The applicaIt request the appointment of Attorney to

present the issues of the testing the 'actual evidence of

'Page 3.

`.'.
Barnes 4.

the crime scence still on file at the SWIFS lab in the showing
that the applicant is actuall innocence and that the wrong evidenced
has been accepted as the- state's exhibit's in a jury trial
'and in the chapter 64{02 hearing. l

This evidence that 'can be tested is filed in the

SWIFS files as P~80 2784 and P-2790 of July 4, 1980 that can
be tested in showing'?;{ the applicant is actual innocence and that
the victims is the actual victim of the offense that occurred
on the date of July 4, 1980., in the process of motioning
the court said attorney can petition this court lfor the testing
procedures as should be applied under chapter 64.03, 04.

The applicant requests a review by the court 's determination
as to what evidence rtherein is exculpatory and that the court
appoint Attorney of record , so that a Order can be filed

that a copy of the portion of the DPD and SWIFS files deemed
to be exculpatory be sealed for the future review by the appellate

court when necessary.

)

Wherefore, Premises Concidered, the applicant prays
that this court Grant this motion for the appointment of counsel
in reviewing this above mentioning in assuring that the applicants

constitiutional rights has been protected;

y Submit

;@"M
' 18814

Ramsey
Rosharo, Texas 77583

   

Page 4.

Mar. 18, 2014 ` _ Gary Wayne Barne§;éb££§£g
, t _ ' 1100 FM' 65 ey
Rosharon, T:q@§g$€g§BAH[]:Z]
" 841'{"""'5§'7.\
~;. . elaine-nms
Usi iv ;‘LERH '
d ' oTEXAS

DEPUry

 
   
 

Office of the Clerk

Gary Fitzsimmins

Frank Crowley Courts Bldg.
133 N. riverfront LB 12
Dallas Texas 75207- 4313

Dear Clerk:

*Enclosed “please find the applicant motion for the APPOINT¢
MENT OF COUNSEL} to be filed in the CRIMINAL DISTRICT CCURT

THREE stamp file a copy and return to the appliucant;

I'll thank you in advance' for

your time and consideration in the request;

Respectfully~Submitted;

 

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Dallas County
Public Defender’S Office 1

 

Decembe§f _12,- 2014
Gary Barnes, #318814
Ramsey l_:‘lnit `

1 100 FM 655

Rosharon, Texas 775 83

1

Dear Mr. 'Barnes,

Eiiclosed please find a copy of the Article 64.04 Findings in F81-01027-J, F81-01105-J
and F81-()2518-J that were signed by the Judge yesterday

Should you choose to appeal these findings you must notify the court within 30 days of
the date the order was signed at the following address:

Judge Gracie Lewis
Criminal District Court No. 3
Frank Crowley Courts Building
133 N. Riverfrom Blvd_, 6“‘ Floor /
Dallas, Texas 75207

Best of luck to you in the future.

Sincerel)/§,

data

Julie Dou_eet_
’Assistant:Public Defender

 

~6 133 N. Eliverfront B|vd., 9"‘ F|oor, LB 2 ~6 Dallas Texas 75207-4313 ~6 Phone: (214) 653-3550 ~6 Fax: (214) 653-3539 ~»6~

THE STATE OF TEXAS

EXHIBiT F

cAUsE Nos. F81-01027-J, F81-01105-J, Fsi-ozsis_j?@/q@gc / " 50
l /

iN THE CRIMI`N“:§§ "+'j)»/_' ‘1'7/@: 36

  

@. . bw» ’
, l § ._\ y 4£{,;€/§¢'{ 'IYHQNS
v. § DISTRICT T #3 'O.. Her
§ v j 15
GARY wAYNE BARNES § DALLAS CoUNTY, TEXA?§P//rzy

ARTICLE 64.04 FINDINGS ON THE RESULTS OF
POST-CONVICTION DNA TESTING

Pursuant to article 64.04 of the Texas Code of Criminal Procedure, this court makes the

following findings:

l.

ln February of 1981, Barnes was found guilty of the aggravated rape of Y.O. (cause
number F8»l -01027-QJ), the aggravated rape of E.R. (cause number F81-01105-QJ),
and burglary of a habitation with intent to commit rape and theft (cause number F8 l - f
02518-]). The jury set punishment at confinement for life and assessed a $10,000 fine
in each case. l v

On October 25, 2007, Barnes filed a formal motion for post-conviction DNA testing
under Chapter 64 of the Texas Code of Criminal Procedure. The State filed a
response stating that it had no opposition to Barnes’ request for nuclear DNA testing
of what appeared to be vaginal smear slides collected during the victims’ sexual
assault examinations /

On February 19, 2009, this Court granted Barnes’ motion and ordered the Texas
Department of Public Safety (DPS) to first determine Whether the slides still in the w
possession of the Southwestern Institute of Forensic Sciences (SWIFS) were in fact

taken during the internal examinations of the sexual assault victims in these cases.

 

This Court further ordered DPS to conduct DNA testing on the slides and on known

samples from Barnes and the victims.

. In a report dated May 13, 2009, DPS informed this Court that it had conducted a

v visual inspection on the slides and confirmed that cellular material was detected on
the slides.

. In the same report, DPS informed this Court that it had completed DNA testing in

these cases. \The test results indicate that:

(a) Gary Wayne Barnes could not be excluded as a contributor to the sperm
fraction of Item 3-1, a vaginal smear slide from Y.O. The probability of
selecting an unrelated person at random that could be a contributor to the
sperm fraction of the vaginal smear slide is approximately l in 6.789"million
for African Americans.

(b) Gary Wayne Barnes could not be excluded as a contributor to the sperm
fraction of Item 3-2, a vaginal smear slide from Y.O. The probability of
selecting an unrelated person at random that could be a contributor to the
sperm fraction of the vaginal smear slide is approximately l in 46.15 million
for African Americans. l

(c) Gary Wayne Barnes could not be excluded as a contributor to the sperm
fraction of Item 3-3, a vaginal smear slide from Y.6 The probability of

l selecting an unrelated person at random that could be a contributor to the
sperm fraction of ithe vaginal smear slide is approximately l in 79 for iAfrican

Americans.

(d) No male DNA was obtained from item 4, a vaginal smear slide from E.R.

 

. The State was unable to obtain buccal swabs from the victims for comparison

purposes in these cases.

. This Court further FINDS that had these DNA results been available during the trial

of the offense, it is NOT reasonably probable that Barnes would not have been

convicted. See TEX. CRIM. PROC. CODE art. 64.04(Vernon Supp. 2006).

Singed and entered this l l77'{ day of ' Do,¢. , 20 / §L

7& }t occ/uad 0{ MO
Gracie Lewis
Judge, Criminal District Court #3

EXHIBIT G

Cause» numbers. F-81-1105, F-81r1027 and F~80-16530

§ F:' ?. FD
GARY Wayne Barnes § IN THE CRIMINAL D SH%&FT
R°h PH :
applicant, § COURT NUMBER THREE. 3 26

/‘.`~
\)H~'

VS. § U§t:; :
THE STATE OF TEXAS § DALLAS COUNTY TEXAS.

 

§
MOTION FOR POST CONVICTION

§
E'RONENSIC DNA TESTING § ’__L__
PURsuANT To chapter`64.o3 §
TO THE HONORABLE JUDGE OF SAID COURT:

Now Comes Gary Wayne Barnes, the defendant in the above
entitled causes by and through Prg~Se Motion, pursuant to Chapter
64 of the Texas Code of Criminal Procedures and would show
on to the court in support of this motion for post-conviction

Forensic DNA Testing the following;
I.
The applicant was convicted in (2) two
Jury's Trials where the State filed Motion of Intent to use
Extraneous offenses and Extraneous Evidences pursuant to Rule
404 and 609 of the Texas Rule of Evidence and Article 37.07 of
the Texas Code of Criminal Procedures.

The State presented at trial in the causes numbers
F-81-1105 and F-Bl- 1027 filed police reports of the DallAS
police Department # 506950-L and 307064-L for the offenses commit-
ted on July 4. 1980. The State presented evidence of the
southwestern Institute of Fronsic Science Lab in numbers 80-
P-1632 and 80-P-1635 as beinqvthe evidence of the crime
scence of the offenses committed on July 4, 1980.

Page l.

Barnes 2.

The State predented at trial an Extraneous offense and
evidence of the SWIFS Lab # 80~P-2593 and the Dallas Police
report file number 482955-L for an offense committed against
Janine Jay Kettering on may 10, 1980 an offense being comm-

itted prior to and before the offense of july 4, 1980.

The State presented at trial in cause number F-80-16530
as an Extraneous offense and Evidence of the SWIFS lab # 80-
P-297l and the Dallas police report file number 558910-
L as an Extraneous offense being committed on Dec, 2. 1980
being an offense "after' the offense committed on july 4,
1980. .

In the presentation of the States case in chief
the introductions of the extraneous offenses a crime that
took place prior to and before the case to which the applicant
was on trial and a Extraneous offense that was committed "afterll
the offense to which the applicant was on trial.
In so doing the state presented a case time line as well

as to show the filing systems for both the Dallas Police

department and that of the Southwestern Institut of froecsic

crime lab.
II.

A review of the Evidence filing systems for the offenses
committed prior to before and after proves, shows that the
evidence sumbitted in open court at the trial as well as on
June 8, 2009 at the chapter 64 hearinq is not and can not
be the evidence of the actual crime scence.

The evidence that has been presented and tested in the

numbers of "BO-P-1632 and 80~P-1635 was on file in the SWIFS lab*

Page 2.

Barnes 3.

before and prior to the extraneous offense` crime committed
May 10l l980.and the SWIFS filing systems shows that the
numbers 1632 and 1635 . was reported in the month of Feb uary

1980 and (6) six months prior to the offense being committed;

The evidence that has been tested bv the Depart-
ment of public in file Numbers LlD-184098 shows in the 'Submission
Information report " the names of the victims are at error,
naming both Renteria and Ketterninq as the victims.

The SWIFS filing systems has recorded that the Extran-
eous offense evidence 80-P-2593 was on file after the numbers-
of 1632 and 1635 and these numbers are not the evidence
numbers for crimes of July 4, 1980.

The SWIFS files shows that the evidence for the crimes
committed on july 4, 1980are in the numbers of 80-P2784 and
80-?-2790 and this said evidence in still on file at the lab and
can be tested to showing that the victims are in fact the victims
to the offense which was committed no July 4, 19880 and also
showing and proving that the applicant in actual innocens.

This evidence proves that the appliaant did not commit
the crimes to which he has been convicted as there is biological
material secured inm relation to the above -entitled and
numbered causes , including but not limited to a viginal smears
from Renteria and Oviedo as well a reference samples from the
applicant.

Despitepast testing of the wrong evidence, the wrong

evidencef The newly discovered evidence of the july 4, 1980

Paqe 3.

'Barnes 4.

presently sits in the SWIFS lab a vaginal smear still remains
available for testing. The evidence was in the possession
of the State during the prosecution of the offense and remains

in the poession of the State , being housed at the SWIFS lab.

III.

There was DNA testing done in this case. Theese test
results did not show the applicant is the person who has
committed the offense s to which he has been convicted as that
evidence has never been tested which has not allowed for the
court to make a favorable finding as the actually evidence
of the crime scence has never been presented to the court or

has that evidence been tested.

IV.

Idenity was and is an issue in this case. It is a reasonable
probability that the applicant would not have been prosecuted
or convicted had the court had Knowledge that the evidence
which has been presented , introduced as state's exhibits
and tested by the Texas Department of public Safety is not
the actual evidence of the actual crime scence.

V.
The applicant makes this request in the interest
of justice , and this request is not made to unreasonable

delay the execution of the sentences or administration of

Justice.

Page 4.

Barnes 5.

WEEREFORE, PREMISES CONSIDERED, the applicant herein wwould
respectfully Pray that this court order the requested DNA

testing be done, Applicant prays pfor such other relief as

to which the applicant may be entitled.

Respectfully Submitted

G§iy z:ene!%aa:es #3§§814

1100 FM 655, Ramsey Unit
Rosharon, Texas 77583

Pro-Se

mayer EN\> SOH>

Page 5.

_‘ , , GARLAND CRIME LABORATORY ` LlD_184098
Information Sheet

Case # LlD- i§qi §§ § Date: §Zio 293 Examiner Initials: y[\_i Page #
TMB LMG AP ALS

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BARNES LAB REPORT INFORMATION:
Texas Police Lab Case # for all involved: #LlD-184098

RENTERIA Elizabeth (Rape Date 7/4/80)
SWIFS Lab # FL80P1635

 

-T;H$ 6 jiL_ >{ Agency #506950L
law ggéwfi@ Agency case #/ cause # Fsi-oi 105 J
FEK¢ '

NEW LAB # 08P0918 (Assigned by SWIFS in 2008
when original specimen appeared to be missing
from storage)

Per Barnes, her number is also 80P2784

LAB riner/ue

6/12/08 - Lab could NO'I`
find evidence in storage
New Lab # assigned for
administrative purposes

2/26/09 K2 Vag Smear
located in SWIFS Storage
with#’s 80P1635/F8101105

2/27/09 Smear sent to State
Lab (Garland) c/o Manuel
Valde'z

3/10/09 Garland Lab logged
in slide holder #80Pl635(K2)
Label: CD K --------------
_(Name redacted but letter K
clearly visible as first letter)
1/16/01 Slide 80Pl635

K2 SBW (probably indi-

cates stain used)

Shows sperm with tail

 

OVIEDO Yvette (Rape Date 7/4/80)
SWlFS Lab #FL 80 Pl632

x Agency # 307064L
NEW LAB # 08P09l9 (Assigned by SWIFS in 2008
when original specimen appeared to be missing
from storage)

 

'r¥~¢ 5' 13

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Nu/v)ee.e _
PE£, BA RML'-'S

Dates may be in error using original #80P1632

Agency Case/Cause # F81-01027 J

Per Bames, her number is also 80P2790

 

KZ Vag. Smear (FL#80P1632)
7/17/08 - SWIFS could _
NOT locate evidence in

storage. New. Lab # assigned
#08P0919.

/3/17/09 Lab loath Kz smear diggij

\2/27/09 Lab sent smear to
Texas State lab (Garland)
C/o Manuel Valdez

3/10/09 Garland lab logged in
l clear bag & 2 sealed slide
holders with 3 slides
(#SOPI 632)#1 slide contains
sperm with tails; #2 & #3
contain unstained cellular
material

(Garland converted these 3 slides to 6 slides for test purposes)

 

l

 

ORDAN Cvnthia (Rape Date 12/2/80)
SWIFS #FL 80 P297l
Cause #F801653O
DPD #558910L

BARNES, Ggy
SWIFS #FL08P1542 (Buccal Swab)

2009 Lab Case # LlD 184098

Case #F8101027

Case # F80 16739 Dism
Case #F80 16740 Dism

 

TEsT/M 6

 

12/3/80:K1 vag. swab
KZ vag smear (found in lab
on 7/08)
K3 blood sample
K4 pubic hair combings
KS pubic hair cuttings
K6 anal smear on slide
Results of testing:
Kl - seminal fluid
KZ - sperm
K3 - blood group
K4 & KS ~ nothing
K6 - no sperm
K7 - blue jeans - seminal
fluid & sperm
K8 - bedspread - nothing
(No longer in lab)
4/8/09 - K2 used to extract DNA
(Became KZTI) divided
to yield two fractions: female

epithelial cells & male sperm
cells

Results of testing:
Epi. Cells: No DNA profile
Could be obtained
Sperm - No DNA obtained
'l`hus n_o comparisons
possible

l/9/81 Ql Blood Sarnple
QZSaliva Sarnple
Barnes is Type O, PGM
Enzyme Type 2-1
& Secretor of Bld
Blood Group O(H)

9/9/08 Buccal Swab (08P1542)
Stored in lab

4/8/09 Portion of sample amplified
For DNA typing

Results: No comparison to

Jordan possible
because there was no
DNA available in'
Jordan’s samples

KETTERNING lennen (Rape Date 580)
#FL 80 P2593
DPD #482955L

 

/\10 `TES T/A€

RENTERIA Joe (father of Elizabeth)
Case # or SWIFS #FS l ~025 l 8
Texas Crime Lab Case #LlD-184098 (2009)

 

Cause No. F80-16530-J, F81-01027-J
F81-01105-J & F81-02518-J

THE STATE OF TEXAS ( lN THE CR|M|NAL
VS. ( DISTRICT COURT #3
GARY WAYNE BARNES " ( DALLAS COUNTY, TEXAS

AFF|DAV|T lN SUPPORT OF MOT|ON FOR DNA TESTING

l am Gary Wayne Barnes. On February 25, 1981, in Cause Numbers
F81-01027-J and F81-01105-J, l was found guilty of aggravated rape and was
sentenced to life in the penitentiary On February 25 1981, in Cause Number
F8l-02518-J, l was found guilty of burglary of a habitation with the intent to
commit rape and was sentenced to life in the penitentiary On February 27l
1981, | was found guilty of aggravated rape in Cause Number F80-16530-J and
was sentenced to life in the penitentiary Notices of appeal were filed in these
cases on |Vlarch 20, 1981. _The appeals were denied, and the mandates were
affirmed on November 5, 1982.

l state that the following is true and correct

l. To the best of my knowledge, there was evidence obtained in
relation to these cases that consisted of biological material This evidence
included, but is not limited to. rape kits taken on the vlctims. The evidence was
m the possession of the State during these cases

2. The evidence, to the best of my knowledge, was not subjected
to DNA testing or comparison DNA testing with my DNA. The testing not being
done was through no fault of my own.

3. The ultimate question in these cases was whether l, Gary
Wayne barns, committed the offenses of aggravated rape and burglary of a
habitation with the intent to commit rape. There is a reasonable probability that it
would show that l did not commit these offenses if DNA forensic testing was
done on the biological materia|.

4. l make this request in the interest ofjustice and not to
unreasonably delay the execution of sentence or administration of justice.

I Gary wayne Barnes TDCJ-ID 318814 am presently incarcerated
in the Texas Department of criminal Justice. Institutional
Division at the Ramsey One unit llOQ Fm 655, Rosharon, Texas
77583 and declare under penalty of perjury that the foregoing

is true and correct;

Executed on this the 31 th Day of March

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THE sTArE OF TEXAS . ` » § ` ~ f UiMECRIMlNAL

  

vs'.` ' _ ` .. ~ _. § DISTRICTCOURT#3

GARY WAYNE BARNES ' ' w § § - DALLAS COUNTY, TEXAS
Mo_TIoN To WITHDRAW As CoUNsEL'

` TO. THE HONORABLE JUDGE OF SAID COURT:

 

_ _ COMES NOW »Michelle Moore,' attorney of record for the Det`endant in
` ` !-`10‘7e_1 styled and~__‘ numbeiet` t ..-;ca;‘. es and moves the Court to enter- -an -~~ ~ -- -»-_

_.'; _ , l`-L ¢-"v.'-_'

    
  

 

" order permitting movant to withdraw as counsel of record in this cause for
the following reasons: ' '

_, I.
Counsel was appointed on this case'by Judge Bobby__Francis.

Gary Wayne Barnes was sentenced to life in all of his cases. Mr. Barnes
`has since asked for and received post-conviction DNA testing in all of these
cases. `

rr _'_ nw _, - m_____. _, _ ._ .

_ ' . ` III.

A finding was entered in Cause Numbers F81~OlOZ7-J, F81-Ol lOS~J and
F81-02518-J, ._on June 8, 2009, which stated that had the DNA test results `
been available during the trial of these offenses, it is N.OT reasonably _
probable that Barnes would not have been convicted The test results in
these cause numbers which did not exclude Barnes as the perpetrator in
these crimes were entered into the court file. ' `

1 _ _ IV. '
in Cause Number F80-l6530-J, no male profile was found by testing the
rape kit from the original investigation of the case. Because STR testing
‘ was utilized in Barnes' case, the judge denied additional Y-STR testing

r"\
f`~

v - l V.
_ All' testing in this case has been granted and received .No other testing
will be done`through Article 64 of the Texas Code of Criminal`Procedure.

. VI.
The granting of this Motion will not have a material adverse effect on the _
interests of the defendant as he may file his notice of appeal.'

- VII.
Counsel requests that this motion be filed.

L'--~~~-s~»~'»¥-'--_-- `V\-Hlt‘ RE §31?PE Movant pra/stne Couitgrant thrs“inot _<11 ,.11 111 der ___ _ _____

that Michelle Moore be released as counsel of record 1n this cause.

~`~~-~ ~ -~ ~' " ’"_'~“j" "__ “;Respectfully subm1tted

WM%W

Mich§lle Moore
_ ' - Assis ant Public Defender ` _v
" " ' ` " ' " " -` 133 N. IndustrialBlvd.,LB_ 2
n Dallas, Texas 75207,
(214) 653¥3564
` State Bar No. 14362150
' `ATTORNEY FOR DEFENDANT

 

CERTlFlCATION
l hereby certify to the Court that a true and correct copy of the above and
1 foiegoing motion has been served on the Assistant District Attorney of '
Dallas County via inter-office mail on the same date of filing herewith
/71 711/1 1 /m

Michelle Moore

  

ORDER

On this Jgf_d_ day of g 11 §§ f 2009, the Court, havin_ considered
the above and foregoing m

v DENIED.“

'v

otion find the same is hereby® ' h

 

' Judge Gracie Lewis
Criminal District Court #3v
n 1 5 v

 

 

Exhibit l

Cause Number: F81-01027-J
F81-01105~J
F81~02518-J

THE sTATE oF TEXAS § IN THE CRIMlNAL
vs. § DisTRICT- coURT. No. 3
GARY wAYNE. BARNEs ` w § DALLAS coUNTY, TEXAS

ORDER DENYING DEFENDANT’S REOUEST F()R RETESTING

The Defendant, Gary Wayne Barnes, appearing pro se, has filed a request with the
Court to consider a media produced videotape of the DNA test taken pursuant to a post-

conviction DNA testing in the above-numbered and styled cause to support his request for
retesting.'

The Court finds that Defendant’s request fails to meet the requirements of Chapter 64
of the Code of Criminal Procedure in that he has shown no evidence that the test conducted
was faulty, or if it was faulty, that an uncompromised sample still exists.

movant, Gary Wayne Barnes,~ #08063282 N 2W-2, P.O. Box 660334, Dallas, Texas 75266,
TX 75207', and to counsel for the State.

sIGNEDchis 11sz day of /\/6\/' ,2009

§§ h m U(M
GRACIE LEWIS, th;E
cRIMINAL DISTR!CT coURT No. 3
DALLAS coUNTY', TEXAS

 

EXHIBIT J

F81-01027-QJ
F81-01105-QJ

F81-0251'8-J
THE STATE OF TEXAS § IN CRIMINAL DISTRICT
vs. § COURT NUMBER 3 OF
. GARY WAYNE BARNES § DALLAS COUNTY,`TEXAS

ORDER GRANTING GARY WAYNE BARNES’S MOTION
FOR POST-CONVICTION DNA TESTING

Barnes was charged with the aggravated rape of Y.O. (cause number F81-01027-
QJ), the aggravated-rape of E.R. (cause number F81-01105-QJ), and burglary of a
habitation with the intent to commit rape and theft (cause number F81-02518-J). A jury
found appellant guilty and assessed a life sentence in all three cases; the jury also
imposed a $10,000 fine in each case. On August 31, 1982, the Dallas Court of Appeals
affirmed his convictions

On October 25, 2007, Barnes, through court-appointed counsel, filed a formal -
motion for post-conviction DNA testing under Chapter 64 of the Texas Code of Criminal
Procedure. The State filed a response to Barnes’s motion on February 18, 2009,. agreeing
that Barnes had met the statutory requirements for entitlement to post-conviction DNA
testing. Accordingly, the State does not oppose DNA testing of what appear to be
vaginal smears that still exist in connection with these cases. The State also does not
oppose testing, for comparison purposes, of known DNA samples to be obtained from
Barnes and the victims, and any of the consensual sex partners that the victims may have

had in the seventy-two (72) hours prior to the rape. The State does not, however, waive

any arguments regarding the integrity of the evidence to be tested or the interpretation of
any test results under Chapter 64 ora subsequent 11.07 writ.

The Court, after considering the pleadings of both parties, the requirements of
Chapter 64, the record in these cases, and the Court’s own knowledge and experience,
grants Barnes’s unopposed request for DNA testing of the evidence currently located at
the Southwestern Institute of Forensic Sciences (SWIFS). The Court also grants DNA
testing, for comparison purposes, of saliva samples to be obtained from Barnes and the
victims, and any of the consensual sex partners that the victims may have had in the
seventy-two (72) hours prior to the rape.

The Court makes the following findings in support of its rulings:

Exz`stence of Evidence Containing Biological Materl'al

l. In relation to this case, SWIFS still possesses two slides, which appear to
be vaginal smears taken during the victims’ sexual assault examinations at Parkland
Hospital.

2. The vaginal smears were secured in relation to the offenses that are the
basis of the challenged convictions

3. The evidence appears to be in a condition making DNA testing possible.

4. The evidence was in the State’s possession during the trials of the offenses.
5. The evidence has been subjected to a sufficient chain of custody.
6. Additionally, for comparison purposes, the State will attempt to obtain

known DNA samples from Barnes and the victims, and any of the consensual sex

partners that the victims may have had in the seventy-two (72) hours prior to the rape.

7. Because SWIFS has been unable to confirm the nature of the slides it has
labeled “KZ” in each of the victim’s specific laboratory numbers, the slides need to be
examined to determine Whether they Were taken as part of the internal examinations of
the victims or whether they contain hair or fiber evidenee.

8. Accordingly, Barnes has met his burden of demonstrating that evidence
containing biological material still exists in relation to these cases and is in a condition
making DNA testing possible. See TEX. CODE CRIM. PROC. ANN. art. 64.03(a)(l)(A)
(Vernon Supp. 2008).

Identily

9. Identity was and is an issue in these cases. The perpetrator was a stranger
to the victims. Barnes’s defense at trial was misidentification; his wife testified that he
was at horne the night of the offenses.

lO. Accordingly, Barnes has met his burden of demonstrating that identity was
or is an issue in these cases. See TEX. CODE CRIM. PROC. ANN. art. 64.03(a)(l)(B)
_ (Vernon Supp. 2008).

Sz'gnijicance of Exculpatory Results

ll. Barnes has met his burden of establishing, by a preponderance of the
evidence, that he would not have been convicted if exculpatory results had been obtained
through DNA testing. See TEX. CODE CRIM. PROC. ANN. art. 64.03(a)(2)(A) (Vernon
Supp. 2008). The DNA test results will only be considered exculpatory for purposes of
Chapter 64, however, if (l) testing yields a male DNA profile that matches neither Barnes

nor any male with whom the victims engaged in consensual intercourse in the seventy-

two (72) hours prior to the rape; and (2) testing yields female DNA profiles that match
the victims, thus confirming that the biological evidence tested was indeed collected from
the victims in these cases. Moreover, DNA test results will only be considered
exculpatory if a visual examination concludes that the slides were obtained from internal
examinations of the victims; test results will not be exculpatory if a visual examination
concludes that the slides contain hair or fiber evidence.

Administration of Justice

121 Barnes has met his burden of establishing, by a preponderance of the
evidence, that his request for DNA testing is not made to unreasonably delay the
execution of sentence or administration of justice. See TEX. CODE CRIM. PROC. ANN. art.
64.03(a)(2)(B) (Vernon Supp. 2008). Barnes is currently serving his sentences in these
cases.

Choice of Laboratory

13. DNA testing will be conducted by the Texas Department of Public Safety
(DPS). See TEX. CODE CRIM. PROC. ANN. art. 64.03(c)(1) (Vernon Supp. 2008). l

14. The proposed testing could consume the evidence, and both parties have
agreed to this condition.

Based on the above findings, the Court GRANTS Barnes’s request for post-
conviction DNA testing of what appear to be vaginal smears currently in the possession
of SWIFS. The Court further grants DNA testing, for comparison purposes, of known
saliva samples from Barnes and the victims, and any of the consensual sex partners that

the victims may have had in the seventy-two (72) hours prior to the rape.

The Court ORDERS that:

l. Within ten (10) days of the date this order is entered, this Court shall issue a
bench warrant, transferring Barnes from the Institutional Division of the Texas
Department of Criminal Justice to the Dallas County Jail. Upon Barnes’s arrival at the
Dallas County Jail, an agent of the State shall collect a buccal swab, thumbprint, and
photograph

2. An agent of the State shall transfer Barnes’s buccal swab, thumbprint, and
photograph, along with a copy of this order, to the Department of Public Safety
Laboratory, attention: Manuel Valadez, 350 W. I-30, Garland, Texas 75043, telephone
214-861-2000, maintaining a proper chain of custody.

3. Within a reasonable amount of time after this order is entered, an agent of
the State shall attempt to obtain buccal swab DNA samples from the victims in these
cases. The State shall also attempt to determine whether the victims had consensual
intercourse within seventy-two (72) hours of the rape. If so, the State shall attempt to
obtain buccal swabs from those consensual sex partners. The victims and their
consensual sexual partners have no legal obligation to provide their DNA samples to the
State.

4. If the State obtains DNA samples from the victims and any consensual sex
partners, an agent of the State shall transfer the samples to the Department of Public
Safety Laboratory, attention: Manuel Valadez, 350 W. I-30, Garland, Texas 75043,

telephone 214-861-2000, maintaining a proper chain of custody.

5. ,DPS shall, upon receipt, visually inspect the slides to determine whether the
slides were obtained during internal examinations of the victims or if the slides contain
hair or fiber evidence, Upon completion of the visual inspection, DPS shall notify all
parties of it conclusions regarding the nature of the slides.

6. If the slides are confirmed to have been taken from internal examinations of
the victims and do not contain hair or fiber evidence, DPS shall conduct DNA testing of
the slides and reference samples|.

7. The DNA testing shall be conducted under reasonable conditions designed
to protect the integrity of the evidence and the testing process.

8. The DNA testing shall employ a scientific method sufficiently reliable and
relevant to be admissible under Rule 702 of the Texas Rules of Evidence.

9. 4 On completion of the DNA testing, the results of the testing and all data
related to the testing required for an evaluation of the test results shall '~be immediately
filed with this Court and copies of the results and data shall be served on then movant, via
his attorney of record, Michelle Moore (Dallas County Public Defender’s Office, 133 N.
Industrial Blvd., LB 2, Dallas, Texas 75207); and on the attorney representing the State,
Amy Sue Melo Murphy (Dallas County District Attorney’s Office, Appellate Division,
133 N. Industrial Blvd., LB 19, Dallas, 'l`exas 75207).

lO. The State of Texas shall bear the costs of all testing conducted pursuant to

this order.

THE CLERK IS FURTHER ORDERED to send a copy of this order to:

(l) Department of Public Safety Laboratory, attention: Manuel Valadez,
350 W. I-30, Garland, Texas 75043; '

(2) Amy Sue Melo Murphy, Dallas County District Attorney’s Office,
Appellate Division, 133 N. Industrial Blvdi, LB 19, Dallas, Texas
75207; and \

(3) Michelle Moore, Dallas County Public Defender’s Office, 133 N.
Industrial Blvd., LB 2, Dallas, Texas 75207.

,i
Signed and entered this lq_lcllay of la Wl)'\ , 2009,

_ , \
Judge Gracie Lewis
` Criminal District Court No. 3
- Dallas County, Texas

CONCLUSION
The movant request that the court consider this appeal of
the findings of the DNA testing in the actual crime scence_
evidence has been withheld, and the evidence of a set of unrelated
offenses has been tested through no fault of the movant:

In the interest of justice the movant has shown that he
has been illgeally convicted using falty evidence that has nothing
to do with the offenses committed on July 4 ,1980.

Movants Attachements and~ Exhibits in' support of the facts
and i_inaa: jurists of reason would find it debateable that the
evidence presented, introduced and exhibited as the states Exhibit's
can support the convictions, Verdicts, Judgements and the sentences
where the movant has a valid claim s of the denial of constututional
rights.

Wherefore Premises considered movant prays that this

court grant leave to file an appeal as the movant has shown

that he has been granted DNA Testing but through no fault
of his own the wrong evidence was tested; '

The actual crime scence evidence is still on file and

with this being the case and the imformation given in the

court files , records the movant is entitle to a new trial

in violation yof brady V. Maryland, as the actual crime scence

evidence has been withheld;

Respectfully Submitted

Ga¥¥$£:§ne_Bgrnes #318814

TDCJ-ID Ramsey Unit

1100 FM 655.

Rosharon, Texas 77583
Executed on this the 26,day '

Of DeC, 2014 ~ M §@/ &D/sz

CERFIFICATE OF FILING OF SERVICE

I Gary Wayne Barnes, hereby certify that I file with
the clerk of the Court and' serve the following Motion of
Appeal as required by the Texas Code of Criminal Proceedures as
authorized by the Chapter 64.04 for DNA testing in support
of this motion on this the 26 day of Dec. 2014 by placing
the same in the United States mail on this the 26 day of Dec.
2014, `in the prison Unit mail-room box , first class mail

the origional to ;

l Gary Fitzsimmons
District Clerk

Frank Crowley Courts Buldg
133 N, Riverfront Blvd LB 12
Dallas Texas 75207-4314

Gary S;yne Ba§nes #318814

TDCJ-ID
1100 FM 655, Ramsey Unit

Rosharon Texas 77583
Executed on this the 26 day of Dec,

2014 \ QQL Sh/ 3\@[}6

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P.o. Box 12308, cAPiroL s'rArioN, AusriN, TEXAS 78711

o»i=F:c1A1 BUSJNESS »

sTATE o-F TEXAS ' ,

PENA)_T\/ Fo-R ... q 1 1 .-:
1215/2014 PRlVATE U-SE f 25 § `2-~;;: ' 313€?10521§4
BARNES, GARY wAYNE sr. . 814511627`“-':'1'(119 F Z“WRQtzjs`s`s-w

On this day» the application fO-’F'i;l__f"O?' V'\irif of blébeas Corpus has been received
and presented to the Court_ _ ,

      

~-i* ‘ '</_MI§T:'£:;@?-¢a__"'=*~'
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_ Abel Acosta, Clerk
GARY WAYNE»’?£BARNES SR.

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3 1100 FM`655 ' ' /`\\Ob
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