  

1 1767 KA'W lj`Rl-:EWAY, Sul'i‘b: 740
1 HoUsTON, '1`1;xAs 7_7079

(281) 597-8818 - ()1¢1=1€1§

(281) 597-828/1. - FACSIMILE ~'

Office of the Clerk

Texas Court of Crimina| Appea|s
P.O. Box 12308

Austin, Texas 78711

 

’ 1’AU1'C11)0\1:Y -
ClAY S_. CC)NRAD
l RICHARD l.. SizNAs/\C
CARBEH‘ “'I`RF.Y” 1)1111()N III,
Ol<'-CouNsl<;l. '

\V\V\V.I.OONl'lYC()NR/\l).COi\/l

Decem ber 8, _20 15

RE: Ex Parte Davon Paul Barrett,'Writ No.`WR-8_4,194-01

Dear C|erl<:

X…lé… 011

` 918 Aus'rlN S'rREF.'r
H1=,M1"s'1‘1=./\1),TlixAs 774/145
(979) 826-84811 - ()1¢1"1€§
(979) 826-8488 - FACSIMILE

REcEl\/ED 1111
couRT oF emmett APPEALS _

DEc` 1 0'21115
Abe| Acosta, Clerkl

ENCLOSED PLEASE FIND the original of Davon Paul Barrett's l\/Iotion for Leave to `Fi|_e App|ica_tion
for a Writ of Habeas Corpus Pursuant to 11.07.... Atter'Cure of Deficiencies Fo|lowing Dismissal for Non-
Comp|iance. This case is a multi- level confusion, but as the application will reveal this case was v
recommended to be dismissed by the convicting court and dismissal was entered by this Court on

v November 25, 2015 without written order and this _fi|ing explains the central matter: the dismissal was
entered by this Court believing that there was no compliance on Ru|e 7..3 1 Tex. R. App Proc when such
compliance had been accomplished before the convicting court recommendation for dismissal for non-

Comp|iance

'remain,`

Enclosures

‘cc:' ` FltE

` Andrea,lacobs, ADA '
401 W. Be|knap

CSC/J L

 

- Fort Worth, TX. '76196-02.01

Thanking you in advance for your consideration, cooperation and attention in this matter, and l _

MOTlOl\ll IlElNllllED

WRIT NO. WR-84,l94-01 BY:_FC/

IN THE COURT OF CRIMINAL APPEALS
F()R THE STATE OF TEXAS

EX PARTE PETITIONER

§
» §
DAVON PAUL BARRETT § REsPoNDENT

DAVON PAUL BARRETT'S MOTION FOR LEAVE TO FILE
APPLICATION FOR A WRIT OF HABEAS CORPUS PURSUANT TO
ART. 11.07 TEX. CODE CRIM. PROC. AFTER CURE OF DEFICIENCIES
FOLL()WING DISMSSAL FOR NON-COMPLIANCE

T(): THE HONORABLE JUSTICES OF THE TEXAS COURT OF
CRIMINAL APPEALS

DAVON PAUL BARRETT, Petitioner, ("Barrett"), by and through his_
counsel of record, Clay Conrad, "Counsel", moves this Court for ‘1eave to file his
application for a writ of habeas corpus, pursuant to Art. 1 1 .07 Tex. Code Criin. Proc.,
and in support of such leave to tile Barrett would show as follows:

I.
PROCEDURAL HISTORY

1. September 29, 2015 Barrett filed his initial application for a writ of
habeas corpus, (Ex. 1), in error. The application was filed from his counsel‘s office
directly in this Court instead of the convicting court September 29, 2015 the

application Was received by the Clerk of this Court and rejected with instructions to

tile in the District Court (Ex. 2).

2. October 6, 2015 the application was properly filed in the District Couit.
(Ex. 3). October 19, 2015 the State responded with a motion to dismiss (Ex. 4). The
motion to dismiss was not predicated on substantive deficiency in the application as
being either frivolous or otherwise insufficient to warrant the granting of habeas
corpus relief The State's motion to dismiss was predicated on the application's
failure to allege the factual basis for granting habeas relief on the approved habeas
corpus "form" itself.

3. At that at the time of filing of the initial application and "form" (initially
with this Court, in error) with the District Court counsel for Barrett included a
memorandum of law in support of the grounds for habeas corpus relief ln that
memorandum was the factual basis supporting each ground for habeas corpus relief
There has NEVER been a claim by the State of Texas that the factual basis for
granting habeas corpus relief is insufficient, or that the grounds are frivolous Tlie
State of Texas has neither denied a single habeas corpus fact alleged, nor has the
State presented evidence from the lawyers complained of as rendering ineffective
assistance that the facts alleged in the initial application are untrue All that was
alleged was that the facts, themselves, were not contained within the approved

"form".

4. Barrett verified the factual basis alleged That affidavit was appended
to the memorandum filed concurrently with the filing of the "form" in the District
Couit.

5. October 23, 2015 Counsel filed Barrett's reply to the State‘s motion to
dismiss In that filing Counsel noted to the District Court that the State of Texas was
not challenging the sufficiency of the habeas corpus facts, nor the law in support,
and the State Was not claiming that the claims Were frivolous (Ex. 5). The sole claim
was that the application should be dismissed for failure to include the factual basis
for granting habeas relief on the "form" itself

6. Concurrent with that filing, on October 23, 2015, Barrett filed his
"Motion for Leave to File Ainended Pleadings", (Ex. 6), and his "First Supplemental
(Form) Application for a Writ of Habeas Corpus Seeking Relief From Final Felony
Conviction Under Code of Criininal Procedure, Aiticle 11.07" (i.e., the 'form')
containing all the facts in support of habeas relief written on the "form" itself (Ex.
7). The District Clerk "received" these filings on October 29, 2015. (Ex. 8).

7. November 10, 2015; twelve (12) days after receipt of the supplemental
application for habeas corpus,_ (Ex. 6,7,8), the District Court entered an order
recommending dismissal of Barrett's application, based solely on non-compliance,
that Barrett had failed to include his factual basis for granting habeas relief on the

approved "form". (Ex. 9). Even though leave to file and a supplemental application

for habeas corpus relief was filed on the approved "form" and pending at the time
the District Court recommended dismissal, dismissal was recommended
nonetheless (Ex. 9). The District Court's recommendation as to dismissal was silent
on Barrett's actually curing any alleged defect in filing before the recommendation

8. The District Court's recommendation of dismissal also included an
order to the District Clerk to transmit the recommendation along with the "Writ
transcript to the Clerk of the Court of .Criminal Appeals as required by law." (Ex. 9).
When Barrett received that order he was concerned that since no time had been
allowed for the filing of objections to the Court's recommendation of dismissal that
the Clerk of the District Court would transmit the "writ transcript" to the Clerk of
this Court before Barrett's objections could be received to be included in that record.
Barret is in prison, his counsel is in Houston, Texas, and the District Court is in Fort
Worth, Texas. There is no e-filing allowed in the Tarrant County District Court for
criminal cases As a result Barrett had to rely on the mail.. Barrett's counsel was
unwilling to do that with such an important filing.

9. November 13, 2015 Barrett filed his objections to th`e District Court's
recommendation for dismissal for non-compliance (Ex. 10). The objections were
filed in the District Court, but in an abundance of caution Barrett mailed the

objections for filing in this Court as well because he feared the objections would not

be received by the District Clerk in time to include in the transcript filed in this Court
pursuant to the rules (Ex. 11).

10. Barrett has now been advised that this Court DISMISSED the entire `
habeas corpus proceeding based on non-compliance with Rule 73.1 Tex. R. App.
Proc. Barrett's family has now advised his Counsel that the Court entered an Order
of dismissal on November 25,, 2015. December 7, 2015 Counsel verified with the
Clerk of this Court that on November 25 , 2015 , without a written order, this Court
DISMISSED this case for non-compliance with Rule 73.1 Tex. R. App. Proc.

11. By all appearances what Barrett's counsel believed would happen has
happened Counsel believed that the Clerk of the District Court would transmit the
record of the District Court without including in that transmission Barrett's
objections to the District Court's recommendation of dismissal based on non-'
compliance, by not putting the facts in support of granting habeas corpus on the
approved "form" itself The fact is the District Court recommended dismissal, and
this Court has entered its own'order of dismissal, based on non-compliance with
Rule 73.1 Tex. R. App. Proc., and Barrett complied with the Rule long before

dismissal was ordered

II.

ARGUMENT IN SUPPORT

1. Rule 7 3.1 (a) Tex. R. App. Proc. provides that an application for habeas
corpus in a non-capital case must be made in the form prescribed by the Court of
Criminal Appeals_ Reference to the exhibits appended hereto reveals that the "form"
did contain tlie habeas facts and was filed of record in the District Court, (Ex. 7)
which was received by the District Court October 29, 2015, (Ex. 8), long before
dismissal was recommended by the District Court on November 10, 2015. (Ex. 9),
and long before this Court entered its order of dismissal for non-compliance with
Rule 73.1 Tex_ R. App. Proc. on November 25, 2015. By all appearances this Court
ordered dismissal because the Court was under the impression that the "form" had
not been filed of record containing all the habeas corpus facts, When in truth, the
"form" Was on file prior to the District Court recommending dismissal.

2. What appears to have happened is that the District Court did not include
in the transcript of the proceedings in the District Court that Barrett had filed his
"form", setting out the entire factual basis for granting habeas relief, (Ex. 7),
concurrently with the filing of his response to the State's motion to dismiss, (Ex_ 5)
and along with a motion for leave to file the approved "form". (Ex. 6). The District
Court did not include in the transcript of this case what it had received on October
29, 2015, specifically, Barrett's motion for leave to file (Ex. 6) and approved "form"

(EX. 7).

3. What also appears is that this Court did not have before it prior to
dismissal for non-compliance with Rule 73.1 Tex. R. App. Proc. the documents filed
in the District Court proving his compliance with Rule 73..1, to wit;

a. Rule 73.1(a) requires the form with all factual bases for granting
relief to be contained thereon. Barrett filed, not only, the approved form complete
with the entire factual basis for granting habeas corpus relief, (Ex.7), but he also
filed his motion for leave to file, (Ex. 6), the approved form. These documents were n
received by the District Court prior to entering the recommendation of dismissal,
(Ex. 8);

b. Rule 73.1(b) requires the clerk of the convicting court to make
the forms available on request This rule presumes filings to be received without use
of the "form", so the rule provides that the clerk of the convicting court supply the
form. Barrett made application on the approved form. But, even filing on the
approved form was not allowed by the "convicting" court. Dismissal for non-use of
the approved form was entered even though compliance had been achieved prior to
dismissal being recommended by the District Court;

c. Rule 73.1(0) requires all the information required by the form to
be provided Barrett provided not only all the information requested, but he included
- his own memorandum of law in support of his application in a separate document.

Notwithstanding this compliance7 the District Court recommended non-compliance,

and this Court dismissed for non-compliance when compliance had been achieved
before recommendation for dismissal by the convicting court and dismissal by this
Court occurred;

d. Rule 73.1(d) requires verification of the application; Barrett
verified his application, and that verification is appended to the application itself
(Ex. 7). Even counsel provided verification (Ex. 7). Compliance with the
verification requirement has occurred;

4. It is Rule 73.2 Tex. R. App. Proc. that was not considered when
Barrett's application was recommended to be dismissed by order of the convicting
court, and then actually dismissed without written order by this Court for non-
compliance with Rule 73.1 on November 25, 2015. Rule 73.2 requires that a non-
complying application will be returned to the applicant by the clerk of the convicting
court with notations of the non-compliance Additionally, if a non-complying
application is filed in theCourt of Criminal Appeals the 'Clerk of this Court is
required to return the non-complying application to the Clerk of the convicting court
with notations of the defects What is presumed by this Rule is that there will be
allowed an opportunity to "cure" any defect. In Barrett's case the non-complying
application was received by the Clerk, and instead of returning the non-complying
application the State was allowed to move for dismissal, and the dismissal was

ordered, notwithstanding a complying application on the approved form being on

file at the time dismissal was recommended by the District Court and later ordered
by this Court.

5. By all appearances the clerk of the convicting court did not transmit all
of the record of the proceedings below. Instead' of returning the non-cornpliant
application on receipt the clerk of the convicting court filed the application, and the
State filed its response lt was only then that Barrett and his counsel became aware
that objection was being made to the "form" that was submitted, that all the habeas
facts were contained in the memorandum as opposed to the "form" itself When that
discovery was made by the filing of the State's motion to dismiss, Barrett filed a
complying application orr the approved form, as well as, a separate memorandum of
arguments and authorities He did so prior to submission to the convicting court for
its recommendation

6. In the end the application was fully compliant when it was reviewed,
and the merits of the application should have been reaclied, and the convicting court
should have based its recommendation on the compliant application on the approved
form. This did not occur.

III.
W
1. This Court is faced with an unusual situation What has occurred is a

habeas corpus applicant, Barrett, is faced with having his claims of ineffective

assistance dismissed without the facts underlying those claims being`reached on the
merits The reason for the merits not being reached is that the application was not
completed on the "form" already approved for such filings _ without the District
Clerk applying Rule 73.2, as the law requires That defect, however, was cured long
before a recommendation for dismissal was entered by the convicting court. That
defect, however, was cured long before this Court entered an Order of Dismissal for
non-compliance with Rule 73.1 Tex. R. App. Proc. orr November 25, 2015.

2. One overriding reality remains The non-compliance with Rule 73.1
Tex. R. App. Proc. was cured on October 23, 2015 when Barrett filed his
supplemental approved "form" application for habeas corpus relief, and the
recommendation for dismissal from the convicting court did not occur until
November 10, 2015, and the dismissal for non-compliance with Rule 73.1 Tex. R.
App. Proc. was entered orr November 25, 2015, thirty-three (33) days after a
supplemental application was filed on the approved "form" in the convicting court.

3. What remains is Barrett is in prison for sixty (60) years, on a case he
could have and would have pleaded guilty to and received a' ten (10) year sentence
if his lawyer(s) had simply communicated the offer to him, once prior to the case
being indicted and the other prior to the trial being set. What remains is Barrett
remaining in prison with a sixty (60) year sentence on a case that was pled and

proceeded to conviction for aggravated robbery by use and exhibiting a deadly

10

weapon, to wit: a firearm, when the video of the crime itself reveals the actor did not
exhibit a deadly weapon at all. This occurred only because'Barrett's trial counsel
failed to present the video to the jury at trial.

4. _Issues of ineffective assistance, in Texas, are reserved to the habeas
corpus procedure outlined in Art. 11.07 Tex. Code Crim. Proc. and the procedural
requisites of Rule 73, et. seq. Tex. R. App. Proc. lt seems a harsh resolution of such
application when counsel for Barrett cured any and all defects in filing, Without
having to be directed to do so, prior to the convicting court recommending dismissal,
and prior to this Court entering an order of dismissal for non-compliance with Rule
73.1 "fex. R. App. Proc.

WHEREFORE, DAVON PAUL BARRETT, by and through his undersigned
Counsel, pray this Court reconsiders its order of dismissal of November 25 , 2015, to
the end that the application and supplemental application for habeas relief is
reinstated, to the end that the entire matter is returned to the convicting court with
instructions to permit the State of Texas to respond to the application and
supplemental application, to the end that the convicting court enters its
recommendation to this Court and the entire case is transmitted to this Court for final
adjudication on the merits DAVON PAUL BARRETT, and his Counsel, Clay
Conrad, pray for any and'all other relief to which they may have shown DAVON l

PAUL BARRETT to be entitled

11

 

Reg. No. 00795301

LOONEY & CONRAD

11767 Katy Frwy, Suite 740
Houston, Texas 77079

(281) 597-8818 (Off“rce)
(281)597-8284 (Telefax)
csconrad@looneyconrad.com
COUNSEL FOR PETITIONER

CERTIFICATE OF SERVICE

I, Clay Conrad, certify that on December 8§ 2015 a true and correct copy of
this document was duly served upon Andrea Jacobs, Assistant District Attorney for
Tarrant County, Texas at her listed address 401 West Belknap, Fort Worth, Texas
76196-0201, by regular inail.

Q%CS</@&

COUNSEL FOR PETITIONER

12

 

NAME :

DATE

1{:?§~,11-\

Case No. _`
(The Clerk of the convicting court will fill this line in.)

IN THE COURT OF CRIMINAL APPEALS OF TEXAS
APPLICATION FOR A WRIT OF HABEAS CORPUS

SEEKING RELIEF FROM FINAL FELONY CONVICTION
UNDER CODE OF CRIMINAL PROCEDURE, ARTICLE 11. 07

D/Wmi) /?/41/4 /;/4¢<)25>7’7~ _
oF'BIRTH: 471/ft y 7/1 /793

PLACE oF CoNFINEMENT= /'1'-/+~ /OFF/ €60 1/ /1/17; T@,,~)/U€§§ee,. d@€¢m Yj 7:1/

Ti)CJ-CID NUMBER: M sri) NUMBER;

(1)

(2)

(3)

(4)

 

RECEll,/ED ' 6

     

This application concerns (check all that apply):

§ aconviction l:l parole q . Q

       

l`_`| a sentence l:l mandatory supervision ' , k
,\‘_ pa
U'\§t...~“vo;' Ug@xk
l:l time credit l:l out-of-time appeal or petitio for

discretionary review

What district court entered the judgment of the conviction you Want relief from?
(lnclude the court number and county )

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What was the case number in the trial court?

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What Was the name of the trial judge?

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Effective: January l, 2014 l \

(5)

(6)

_ (7)

(8)

(9)

(10)

Were you represented by counsel? If yes, provide the attorney's namer

l/€S. 415/1 mMLL@»/il. Gc‘w/§ A/ MCGJ/A)T?T/
11£ ira/ears

What was the date that the judgment was entered?

/)7/11 /J, Q£/ 3

For what offense were you convicted and what was the sentence?.

MAJ)+T€J QDB£€/Lr u//D€/H)zy wensz

If you were sentenced on more than one count of an indictment in the same court at
the same time, what counts were you convicted of and what was the sentence in each

y//i

 

What was the plea you entered? (Check one.)

l:l guilty-open plea l:l guilty-plea bargain
E`~ not guilty 1:| nolo contendere/no contest

If you entered different pleas to counts in a multi-count indictment, please explain:

 

 

What kind of trial did you have?

l:l no jury 1:1 jury for guilt and punishment
IX jury for guilt, judge for punishment

(11)

(12)

(13)

(14)

Did you testify at trial? If yes, at what phase of the trial did you testify?

va

Did you appeal from the judgment of conviction?

|;.yes 13 no

If you did appeal, answer the following questions:
(A) What court of appeals did you appeal to? §§ "377 77 915 r'? /[T

(B) What was the case number? 0 Z ’/ 3 ”' o 6 2 0 ° ' C ll

(C) Were you represented by counsel on appeal? If yes, provide the attorney's
name:

l 1 § 14 ` /W anew
(D) What was the decision and the date of the decision? 14 FF/A/) ‘T\/ "' 5 -§/ 20 l y
Did you file a petition for discretionary review in the Court of Criminal Appeals?
E"yes El no
If you did file a petition for discretionary review, answer the following questions:
(A) What was the case number? P D _0 66? ` / L/ n
(B) What was the decision and the date of the decision? /2 € F‘)} 601 / p‘ 7_' [J/ Z@/ L/

Have you previously filed an application for a writ of habeas corpus under Article
11.07 of the Texas Code of Criminal Procedure challenging this conviction?

l:l yes ELno
If you answered yes, answer the following questions:

(A) What was the Court of Criminal Appeals’ writ number?

(15)

(16)

(B) What was the decision and the date of the decision?

 

(C) Please identify the reason that the current claims were not presented and could
not have been presented on your previous application.

 

 

 

 

Do you currently have any petition or appeal pending in any other state or federal
court?

|:1 yes 'ELno

If you answered yes, please provide the name of the court and the case number:

 

If you are presenting a claim for time credit, have you exhausted your
administrative remedies by presenting your claim to the time credit resolution
system of the Texas Department of Criminal Justice? (This requirement applies to
any final felony conviction, including state jail felonies)

E yes E"no
If you answered yes, answer the following questions:
(A) What date did you present the claim? y /H_

(B) Did you receive a decision and, if yes, what was the date of the decision?

 

If you answered no, please explain why you have not submitted your claim:

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(17)

 

 

 

 

 

Beginning on page 6, state concisely every legal ground for your claim that you are
being unlawfully restrained, and then briefly summarize the facts supporting each
ground. You must present each ground on the form application and a brief
summary of the facts. If your grounds and brief summary of the facts have not been
presented on the form application, the Court will not consider your grounds.

If you have more than four grounds, use pages 14 and 15 of the form, which you
may copy as many times as needed to give you a separate page for each ground, with
each ground numbered in sequence. The recitation of the facts supporting each
ground must be no longer than the two pages provided for the ground in the form.

You may include with the form a memorandum of law if you want to present legal
authorities, but the Court will not considergrounds for relief set out in a
memorandum of law that were not raised on the form. The citations and argument
must be in a memorandum that complies with Texas Rule of Appellate Procedure 73
and does not exceed 15,000 words if computer-generated or 50 pages if not. If you
are challenging the validity of your conviction, please include a summary of the facts
pertaining to your offense and trial in your memorandum.

GROUND ONE:
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13 /4¢€,4/411) P/wee%

FACTS SUPPORTING GROUND ONE:

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GROUND TWO: .
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GROUND THREE:

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FACTS SUPPORTING GROUND THREE:

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GROUND FOUR:

 

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13

WHEREFORE, APPLICANT PRAYS THAT THE COURT GRANT APPLICANT
RELIEF TO WHICH HE MAY BE ENTITLED IN THIS PROCEEDING.

VERIFICATION

This application must be verified or it Will be dismissed for non-compliance For
verification purposes, an applicant is a person filing the application on his or her own behalf. A
` petitioner is a person filing the application on behalf of an applicant, for example, an applicant’s
attorney, An inmate is a person Who is in custody.

The inmate applicant must sign either the “Oath Before a Notary Public” before a
notary public or the “Inmate’s Declaration” Without a notary public. If the inmate is represented
by a licensed attorney, the attorney may sign the “Oath Before a Notary Public” as petitioner and
then complete “Petitioner’s lnformation.” A non-inmate applicant must sign the “Oath Before a
Notary Public” before a notary public unless he is represented by a licensed attorney, in Which
case the attorney may sign the verification as petitioner.

A non-inmate non-attorney petitioner must sign the “Oath Before a Notary Public”
before a notary public and must also complete “Petitioner’s lnformation.” An inmate petitioner
must sign either the “Oath Before a Notary Public” before a notary public or the “lnmate’s
Declaration” Without a notary public and must also complete the appropriate “Petitioner’s
lnforrnation.”

OATH BEFORE A NOTARY PUBLIC

STATE OF TEXAS

COUNTY oF g g &Q mfg

C' 6 /¢‘7/ § ~ 0 071 }z A,O , being duly sworn, under oath says: “I am
the applicant /@circle one) in this action and know the contents of the above
application for a Writ of habeas corpus and, according to my belief, the facts stated in the

application are true.” W

§_'r(gy@tgr_gg£érpp'l'i‘cant# ly{tioner (circle one)

SUBSCRIBED AND SWORN TO BEFORE ME THIS 17 DAY OF 6 §§ ;/’;27/, 20 /§".

cRYSTN.LmNELDRmE Otj\@W O) iich

fv~=` §MY C(s)x:::::?: §§:lnes Signatiire of Notary Public

 

16

PETITIONER’S INFORMATION
Petitioner’s printed name: /l l /l",/ 5 6077 72 1419

State bar number, if applicable: 0 67 74 §` §§ /

 

Address: lamar §,/GMJZHO} /D-[l
//7{7 /\/)4T‘f FL</*/ ‘/’#7“/0
¢/w§vm '/’/\/ 77@77

Teiephone; 2 §/'9‘?7’ Z’S/§

Fax; ZS’/'§"i?' %23‘7'

 

 

INMATE’S DECLARATION
I, , am the applicant / petitioner (circle one) and
being presently incarcerated in , declare under penalty of

 

perjury that, according to my belief, the facts stated in the above application are true and correct.

Signed on , 20

 

 

Signature of Applicant / Petitioner (circle one)

17

Ex Parte

DAVON PAUL
BARRETT

Applicant WRIT NO.

CO'>CMEMOO'JWO

MEMORANDUM OF LAW ON

APPLICATION FOR POSTCONVICTION

WRIT OF HABEAS CORPUS

PURSUANT TO ARTICLE 11.072

OF THE TEXAS CODE OF CRIMINAL PROCEDURE

To the Honorable Judges of the Texas Court of Criminal Appeals:

COMES NOW Davon Paul Barrett, Applicant, by and through his Attorney
of Record, Clay S. Conrad, Petitioner, to petition this Honorable Court to grant a
Writ of Habeas Corpus pursuant to Art. 11.07 et seq. of the Texas Code of Criminal
Procedure, seeking that the conviction and judgment against him be vacated, and in
support shows the following:
I.
STATEMENT OF FACTS

Applicant is presently being illegally and unconstitutionally confined and
restrained of his liberty under color of a judgment and sentence against him from the
396th District Court, Tarrant County, Texas, Judge George Gallagher, Presiding.
Applicant is currently serving a sixty (60) year sentence at the H.H. Coffield Unit in
Tennessee Colony, Texas.

Applicant was convicted following a jury trial of Aggravated Robbery with a
Deadly Weapon on May l, 2014 in Cause No. 1266858D, Tarrant County, Texas.

l

The Applicant was sentenced by Judge Gallagher to sixty (60) years in the custody
of the Texas Department of Criminal Justice on May 1, 2015.

Applicant filed a direct appeal in the 2nd Court of Appeals, Cause No. 02-13-
00200-CR, which was decided against him in an unpublished opinion on June 5,
2014. He then filed a Petition for Discretionary Review before the Texas Court of
Criminal Appeals, which was refused October 1, 2014 in Cause No. PD-0869-14.
The mandate on this direct appeal issued November 10, 2014. This petition follows.

II.
JURISDICTIONAL STATEMENT

Jurisdiction is invoked pursuant tothe provisions of Article 11.01, et seq., of
the Texas Code of Criminal Procedure. Applicant is unlawfully and
unconstitutionally confined and restrained of his liberty in violation of Article I,
Section 10 of the Texas Constitution and the Fif`th, Sixth, and Fourteenth
Amendrnents to the United States Constitution. A copy of the relevant exhibits are
hereto attached and incorporated by reference the same as if copied in full and set

forth at length herein.

III.
GROUNDS FOR RELIEF
This restraint is unlawful because:

(l)Counsel Al Lazarus rendered ineffective assistance in that he failed to investigate
the law and the facts and advise Applicant as to the advisability of taking a plea
agreement prior to the expiration of the agreement, thus depriving Applicant of

2

the ability to make an informed decision concerning the 10 year plea agreement
offered by the State.

(2) Counsel Glynis A. McGinty rendered ineffective assistance in that she failed to
investigate the law and the facts and advise Applicant as to the advisability of
taking a plea agreement prior to the expiration of the agreement, thus depriving
Applicant of the ability to make an informed decision concerning the 10 year plea
agreement that had been offered by the State.

(3)C0unsel Glynis A. McGinty rendered ineffective assistance in that she failed to
note and argue before the jury the contradictions between the videotape of the
alleged crime and the complaining witness’ initial report of the crime and her trial
testimony, when the videotape revealed no firearm in the possession of Applicant
nor Applicant coming Within close proximity of the complainant to have held a
firearm to her head, as she initially reported, nor to have held a firearm to her side
as she testified at trial.

(4) Counsel rendered ineffective assistance by failing to note and argue that the
aggravated robbery the State ultimately charged Was unsupported by the police
investigation, and Counsel failed to interview and subpoena Witnesses to
support such defense at trial.

IV.
ARGUMENT AND AUTHORITIES
Ground One:

Counsel Lazarus rendered ineffective assistance in
that he failed to investigate the law and the facts -and
advise Applicant as to the advisability of taking a
plea bargain agreement prior to the expiration of the
agreement, thus depriving Applicant of the ability to

make an informed decision concerning the 10 year
plea agreement that had been offered by the State,
Ground Two:

Counsel McGinty rendered ineffective assistance in
that she failed to investigate the law and the facts and
advise Applicant as to the advisability of taking a
plea bargain agreement prior to the expiration of the
agreement, thus depriving Applicant of the ability to

make an informed decision concerning the 10 year
plea agreement that had been offered by the State.

A. Ground One: Ineffective Assistance of Counsel Rendered During Plea
Negotiations by Counsel Lazarus.

Prior to the trial of this case, offers of ten years’ incarceration were
made Counsel, not once, but twice. The first offer was made to counsel, ten
years’ incarceration, and the initial offer was held open until such time as
Applicant was indicted. Counsel was appointed to represent Applicant on
January 23, 2012. C.R. 12. The initial plea offer by the State of ten years’
incarceration was made at the consultation hearing on February 3, 2012. See
“Consultation Setting Plea Offer Acknowledgement, attached hereto and
incorporated herein for all purposes, as Well as, Affidavit of Davon Paul
Barrett, likewise attached hereto and incorporated herein for all purposes. The

indictment Was returned two weeks later on February 17, 2012. (Attached).

4

In that two week period Counsel failed in his duty to conduct an independent
investigation into the law and facts of the case. That two week period was
critical in that the ten year offer was only good, per Counsel’s agreement with
the State, up to indictment Applicant was in custody during this two week
period, and Counsel failed to communicate with Applicant. During that two
Week period, it appears Counsel did nothing. It is beyond cavil that he did not
visit Applicant in jail to speak with Applicant about the plea offer. Nor did he
request additional time from the Tarrant County District Attorney’s Office
4 prior to seeking an indictment So that he could complete discovery and confer
with Applicant. He simply let the offer lapse without action, and by doing so

deprived Applicant of any opportunity to accept the outstanding ten year plea

offer.

B. Ground Two: Ineffective Assistance during Plea Negotiations by Counsel
McGinty

The State again made a ten year offer, prior to the case going to trial, on July
30, 2012. (Attached). This offer was made at the Status Conference. The State held

that offer open for only one day. At that time, Counsel McGinty was Applicant’s

trial counsel. Icz’.l In light of the State’s overwhelming case and the prior bad acts the
State had noticed and intended to introduce at trial, Counsel had a duty to act with
some urgency and advise Applicant concerning the merits of the ten year plea offer.
In spite of this, Counsel did not discuss the advisability of accepting this offer with
Applicant. In fact, Counsel failed to apprise Applicant that the ten year offer was
available. It was not until it was too late for the offer to be accepted that Applicant

learned of it.

C. Harm Analysis

Prejudice is empirical. Applicant has sworn that if either Counsel had
discussed with him the advisability of either of these plea offers, along with the risks
of going to trial, he would have taken the offer. See Affidavit of Davon Paul Barrett,
(Attached). Because both offers expired without his attorneys discussing them with
him, he was deprived of the opportunity to accept them. See Affidavit of Davon Paul
Barrett. (Attached). As Applicant received a sixty (60) year sentence following trial,
the harm of being denied the opportunity to seriously consider and accept these plea

offers is beyond serious debate. It is beyond cavil that an additional fifty (50) years

 

‘ While the record clearly shows that Ms. McGinty took over representation of the Applicant, the record does not
show a Motion for Substitution. It is unclear from the record exactly when she took over the case.

6

of incarceration cannot sensibly be deemed “not prejudicial”. The SupremeCourt
has declared that where sentencing is concerned even a single extra day in prison
attributable to defense counsel’s ineffectiveness is prejudicial. United States vs.
Glover, 531 US 198 (2001). A ten year sentence, which Applicant Should have been
strongly advised to accept, and which Applicant would have accepted, Was
cavalierly left to expire on two occasions. Prejudice to Applicant is empirical under
these facts. See Ex parte Wilson, 724 S.W.2d 72, 74 (Tex. Crim. App. 1987).

But both Counsels’ ineffectiveness did not end with their collective
unreasonable procrastination. Both Counsel failed to note that Applicant was, for all
intents and purposes, predisposed to accept the plea agreement offered by the State.
In the prior bad acts noticed by the State there is a collection of incidents in which
bad acts Were alleged, leading to a collection of arrests, followed by a collection of
prosecutions by the same prosecution team heading the instant prosecution of
Applicant. In each and every, all and singular, the prior bad acts that led to the arrest
of Applicant that resulted in prosecutions being pursued Applicant pleaded GUILTY
each and every time! Not once, in the prior bad acts alleged by the State, did this
Applicant fail to waive his right to trial and plead guilty. Given the voluminous
record of prior bad acts noticed by the State it would have been professionally

reasonable for either Counsel to simply realize this case could be resolved With a

7

plea of guilty unless something defensible could be revealed in either Counsels’
independent investigation of the facts of the case. As nothing was revealed by either
Counsel, both Counsel rendered ineffective assistance in failing to note that
Applicant was predisposed to waive trial and enter a plea of guilty immediately after
either of the two ten year prison sentence offers were made by the State. Given-this
reality, Counsels’ procrastination in resolving this case via plea of guilty and ten

year sentence accepted is everrnore unreasonable

D. _A Lawyer’s Duty Concerning Plea Bargains

The Sixth Amendment, applicable to the States through the Fourteenth
Amendment, provides that the accused shall have the assistance of counsel in all
criminal prosecutions. The right to counsel so guaranteed is the right to effective
assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct.
2052, 80 L. Ed. 2d 674 (1984). The Sixth Amendment requires that the accused
receive effective assistance of counsel at all critical stages of litigation. United States
v. Crom`c, 466 U.S. 648, 659 (1984).

The negotiation and consideration of plea offers have been deemed critical
stages of trial. “The negotiation of a plea bargain is a critical phase of litigation for

purposes of the Sixth Amendment right to effective assistance of counsel.” Paa’illa

8

v. Kentucky, 559 U.S. 356, 373 (2010). A defense attorney has an obligation to fully
advise his client of the terms and desirability of plea offers extended by the State. lt
is well established that a criminal defendant is entitled to effective assistance of
counsel during the plea bargaining process. Ex parte Wilson, 724 S.W.2d 72, 73
(Tex.Crim.App. 1987). All plea bargain offers must be communicated promptly to
the accused. Ia’. at 74. In Wilson, the Court of Criminal Appeals determined that
counsel’s failure to inform his client of a plea offer by the State fell below the
objective standard of reasonableness which caused prejudice against the defendant
and was, therefore, ineffective assistance of counsel.

To provide effective assistance concerning plea matters, “counsel has a duty
to render his best judgment to his client about what plea to enter, and that judgment
should be informed by an adequate and independent investigation of the facts of the
case.” Ex parte Reea’y, 282 S.W.3d 492, 500 (Tex. Crim. App. 2009). Counsel has
an absolute duty "to conduct a prompt investigation of the circumstances of the case
and to explore all avenues likely to lead to facts relevant to the merits of the case."
Ex parte Brz`ggs, 187 S.W.3d 458, 467 (Tex. Crim. App. 2005). “Applicant was
entitled to rely upon her counsel "to make an independent examination of the facts,
circumstances, pleadings and laws involved and then to offer his informed opinion

as to what plea should be entered" based upon an informed investigation of the

9

facts. . .” Ia’. at 469, citing to Von Moltke v. Gillies, 332 U.S. 708, 721, 68 S. Ct. 316,
92 L. Ed. 309 (1948) and McMann v. Richam’son, 397 U.S. 759, 769-70, 90 S. Ct.
1441, 25 L. Ed. 2d 763 (1970)(defense counsel must make his judgment as to the
weight of the state's case and share his predictions with the defendant even though
the predictions are necessarily uncertain). b

Counsel Lazarus had a two week period of time to investigate the case and
discuss the plea offer with Applicant. He failed. Applicant was prejudiced -

Counsel McGinty had a shorter period of time - one day. But even the “one
day” is deceiving with respect to the issues presented herein. As Counsel admitted
in her final day of trial voir dire examination of Applicant relative to his waiving his
right to testify, Counsel had represented Applicant for “. .. almost a year ...”.
However, it does not appear she ever discussed with Applicant the fact that the offer
had been made, much less took the time to inform him of the evidence she was then
aware of that would “lead to facts relevant to the merits of the case.” Reedy, supra
The reset form containing notes of the offer was never signed by Applicant so there
is no empirical evidence he was aware the offer was open. Applicant never had a
meaningful and informed opportunity to consider either plea offer. Additionally,
Counsel McGinty signed a reset form for TRIAL. It must be presumed that When

she did this she had conducted here independent investigation, that she was aware

10

of the overwhelming evidence of guilt, of the prior bad acts of Applicant that were
admissible at trial, and even of the reality that Applicant had pleaded guilty each and
every opportunity he had to do so. Given these facts it seems that a professional
attorney rendering reasonably effective assistance would have discussed the ten year
plea offer sometime inside the 24 hour window allowed by the State to accept the
plea offer.

The United States Supreme Court has noted:

“The reality is that plea bargains have become so central to the administration
of the criminal justice system that defense counsel have responsibilities in the
plea bargain process, responsibilities that must be met to render the adequate
assistance of counsel that the Sixth Amendment requires in the criminal
process at critical stages. Because ours "is for the most part a system of pleas,
not a system of trials," it is insufficient simply to point to the guarantee of a
fair trial as a backstop that inoculates any errors in the pretrial process. "To a
large extent . . . horse trading [between prosecutor and defense counsel]
determines who goes to jail and for how long. That is what plea bargaining is.
lt is not some adjunct to the criminal justice system; it is the criminal justice
system."... In today's criminal justice system, therefore, the negotiation of a
plea bargain, rather than the unfolding of a trial, is almost always the critical
point for a defendant.”

Missouri v. Frye, 132 S.Ct. 1399, 1407 (2012)(citations omitted). Frye
unambiguously held “defense counsel has the duty to communicate formal offers
from the prosecution to accept a plea on terms and conditions that may be favorable

to the accused. .. When defense counsel allowed the offer to expire without advising

11

the defendant or allowing him to consider it, defense counsel did not render the
effective assistance the Constitution requires.” Id. at 1408.

That case could not be more directly on point. Galin Frye was charged With
his fourth offense of driving with a revoked license, a felony carrying a maximum
sentence of four years. The State made two time-limited offers: 1) a 3-year sentence
to the felony charge, no recommendation regarding probation but a recommendation
that Frye serve 10 days in jail, or 2) to reduce the charge to a misdemeanor and
recommend a 90-day sentence. Frye's attorney did not inform Frye of the offers, and
they expired without Frye having had an opportunity to consider them. That is
remarkably similar to the case herein, in which the State twice made ten-year offers,
neither of which were investigated nor discussed with Applicant prior to their
expiration.

The Frye Court continued, saying that:

“In order to complete a showing of Strz'ckland prejudice, defendants who have

shown a reasonable probability they would have accepted the earlier plea offer

must also show that, if the prosecution had the discretion to cancel it or if the
trial court had the discretion to refuse to accept it, there is a reasonable
probability neither the prosecution nor the trial court would have prevented
the offer from being accepted or implemented It can be assumed that in
most jurisdictions prosecutors and judges are familiar with the boundaries of
acceptable plea bargains and sentences. So in most instances it should not be
difficult to make an objective assessment as to whether or not a particular fact

or intervening circumstance would suffice, in the normal course, to cause
prosecutorial withdrawal or judicial nonapproval of a plea bargain. The

12

determination that there is or is not a reasonable probability that the outcome
of the proceeding would have been different absent counsel’s errors can be
conducted within that framework.”

Id. at 1410. The instant case involved a veteran prosecutor who well knew
what agreements Would have been accepted by the judge she was practicing before.
Moreover, it is unrefuted that she was operating in good faith, and would not have
revoked avplea offer absent the sort of material intervening circumstances that were
not present herein. The best evidence of the fact that the offer would not be revoked
is that the State left the offer open for a day prior to trial The obvious conclusion
from these objective facts is that the State did not, and would not have, Withdrawn
the offer, and the trial court would have accepted it.

Without an informed opportunity to consider these plea offers, with the
benefit of reasonable efforts by counsel to investigate the merits of the offers and
advise their client, the Applicant was denied effective assistance of counsel. As a
consequence? he is serving a sentence six (6) times what he would be serving, had
he been advised properly by attorneys who had made the effort to conduct the basic

discovery that the law requires.

Ground Three: n

13

Counsel McGinty rendered ineffective assistance in that
she failed to note and argue for the jury the contradictions
between the videotape of the alleged crime and the
complaining Witness’ initial report of the incident as
against her testimony at trial, when the videotape revealed
no firearm in the possession of Applicant nor Applicant
ever coming in close proximity to the complaining witness
to have held a “gun” to her head, as initially reported, nor
to have shoved a “gun” in her side as she testified at trial.
A. Introduction
During the trial of this case, a videotape showing the interaction between the
Applicant and the complaining Witness was introduced as State’s Exhibit 6. That
videotape showed that the Applicant, at no point, had a firearm in his possession
Furthermore, even though the complaining witness initially reported that the
suspect had held a gun to her head, (See Attached 911 report), and even though
she testified that the suspect held a gun to her side. The State’s own evidence, the
7-11 surveillance video, reveals that Applicant never came within close
proximity to the complaining witness to commit either act, either hold a firearm

to her head, or to hold a firearm to her side, in the course of committing theft

from a person.

B. Argument.

14

Counsel McGinty failed in two regards. First, she failed to note and argue the
7-11 surveillance video evidence, State’s Ex. 6, as evidence supporting a lesser
included offense, of theft from a person, or for simple robbery. The indictment
charged the commission of the crime with the use of a deadly weapon, and the 7-
11 surveillance evidence was actually exculpatory evidence that Applicant never
possessed a firearm, nor used a firearrn, in the commission of any crime. At a
bare and forgiving minimum, if Counsel was willing to proceed to trial without
discussing the ten year plea offer with Applicant in the 24 hours prior to trial, she
must be held accountable for noting and arguing that the aggravating element of
this crime was not proven by the State’s own evidence.

Second, Counsel McGinty never used this 7-11 videotape to impeach the
complaining witness. Both the initial report to police, that the actor held a gun
to her head, and the trial testimony, that the actor held the gun to her side, are
disputed by the State’s surveillance video evidence. In fact, the disparities
between the video and the testimony was mentioned in closing, but Counsel
failed to effectively confront the complaining witness on cross-examination
regarding the inconsistencies in her testimony and the 7-11 surveillance video

evidence.

15

Third, it is clear from Counsel’s closing that she failed to note and argue the
relevance of the 7-11 surveillance video evidence. Though Counsel made an oral
motion for directed verdict of acquittal prior to beginning her closing,
(R.Vol.Tr.Vol.V,p.5), it appears Counsel was unaware of the relevance of the
surveillance video evidence, altogether. Counsel did ask the jury to consider the
video tape, but she demonstrated not an inkling of understanding of the relevance
of the evidence. Counsel stated: “...Look at the video. Compare it with her
testimony, That’s impossible Didn’t happen like that. Couldn’t have. You’re
' looking at it. There wasn’t enough time. (R.Vol.Tr., Vol.V., pp.14-15). The
relevance of this video tape evidence is NOT to establish a time line for the
commission of the crime, rather, it establishes Applicant never possessed a
firearm, never held a firearm to the Complainant’s head or person, and in the end,
it is THE EVIDENCE supporting Counsel’s claim on her oral motion for directed
verdict of acquittal, supra., that the State had failed to prove beyond a reasonable
doubt and as counsel put it: “. .. they failed to commit an aggravated robbery
in this matter ...”. ID., (R.Vol.Tr.Vol.V., p. 5).

There is far more than a reasonable probability that, had trial counsel noted
the real relevance of the surveillance video exculpatory evidence, and if Counsel

had argued the real relevance of this evidence to the jury, or even confronted the

16

Complainant with the contradictions between her initial report and her testimony
at trial with that evidence, the outcome of the jury’s verdict Would have differed,
and Applicant would not have been convicted of aggravated robbery. The jury
would have been confronted with the reality that the evidence, taken as a whole,
was that Applicant, if he committed any crime at all, did NOT commit an
aggravated robbery because the evidence showed he never possessed a firearm,
at all.

The 7-11 surveillance video evidence,. likewise, was not challenged as being
the best evidence of what occurred that day. In fact, the State introduced other
surveillance video evidence from the E-Z Mart, Where Applicant was arrested7
because it was that evidence that connected Applicant to the Complainant’s
purse, found in a garbage can, after the dark hooded sweater wearing suspect was
seen on video putting something in a trash can, where the Complainant’s purse
was found by officers. That was competent evidence, not because Applicant says
so, but because it was offered into evidence by the State and admitted without
objection. Likewise, the 7-11 surveillance video evidence held the same
relevance.

Counsel has a constitutional obligation to prepare, and it is presumed by the

Supreme Court that counsel does prepare for trial, but that presumption is a

17

rebuttable one. ID. Stricklana’, supra. at 466 US at 687-91; SEE ALSO:
KIMMEL]\/[AN v MORRISON, 477 US` 365, 375 (1986). Merely being aware of
the existence of the 7-11 surveillance video evidence did not constitute
preparation Preparation included understanding the relevance of the evidence,
which Counsel failed to do. lt would be one thing if the video evidence was
meaningless, but it was not. lt was relevant to the State’s case, and in the end, it
was relevant to the very argument Counsel offered on her oral motion for directed
verdict that the State had failed to prove every element of an aggravated robbery
beyond a reasonable doubt. There can hardly be a more definitive example of a
lawyer’s failings resulting in ineffective assistance, to the prejudice of the
defendant. Counsel not only failed to resolve this case with a plea bargained
sentence fifty years less than the sentence ultimately imposed,'but when Counsel
proceeded to trial she did so without an inkling of the relevance of exculpatory
evidence made available to her, not through her own investigation, but from the
office of the prosecutors. The State met its obligation to produce exculpatory
evidence. The failing was upon Counsel, and Counsel alone, when she failed in
her obligation to note and argue the relevance of that very evidence. That Counsel
rendered ineffective assistance under these facts and circumstances is clear,

unequivocal.

18

Ground Four.
Counsel rendered ineffective assistance by failing
to note and argue that the aggravated robbery the State
ultimately charged was unsupported by a the police

investigation, and Counsel failed to interview and
subpoena witnesses in support of such defense.

A. lntroduction.

Again, Counsel McGinty failed in two respects. The first indicates Counsel’s
failure to properly investigate and apply the results of that investigation to the task
of providing an effective defense. The second indicates Counsel’s failure to properly
prepare for trial by compelling the attendance of relevant witnesses, albeit those
Witnesses were police detectives and clearly adverse to Applicant’s defense.

ln the first instance each and every initial report of this incident treated this
investigation as a “robbery”, not an “aggravated robbery”, and the reason for such is
clear. The crime, whatever it Was, was not an “aggravated” robbery with the suspect
committing “robbery” through use of a deadly weapon, to wit: a “firearm”. lt is not
like this crime was committed in a vacuum. lt was committed on camera in the full
view of investigating detectives. Robbery detectives A. Frizzell (Badge #P178) and

Hinson were assigned Both detectives viewed the 7-1 1 surveillance video, and both
19

detectives were aware that there was no “firearm” used in the commission of the
crime. ln all reports authored by Detective Frizzell there was never a mention, not
even once, of the use of a firearm in the commission of the crime. During all of this
reporting it was “robbery” that Was reported, not “aggravated robbery”, and the
reason is clear Why. There was no firearm. Frizzell and Hinson viewed the video in
which it is shown that the actor approached the Complainant, and the Complainant
ran away immediately. Complainant was not subjected to a gun being placed at her
head, as she had reported, and she was not subjected to a gun being held to her side,
as she testified Two witnesses were aware of these facts, and their names were
known through their reports, and Counsel failed to subpoena them for trial.

And in the second instance Detective Frizzell is the person responsible for
filing what he referred to as “additional charges” against Applicant, and it was these
“additional charges” that resulted in the “aggravated” robbery being added
Detective Frizzell interviewed Applicant after his arrest While he was in the custody
of the Tarrant County Jail. lt was after that interview, wherein Applicant refused to
confess to the robbery, that Detective Frizzell decided to “add” the charge of
aggravated robbery. Detective Frizzell reported: “l met with Barrett in the jail ... to
discuss the case. (Barrett gave his version of what occurred which did not have him

confessing any involvement in the robbery. . .) ...lt became obvious to me that the

20

defendant was going to stick with that story so l stopped the interview. I added a
charge of Aggravated Robbery to Devon Barrett because of the fact that the
driver of the vehicle who Was wearing the same clothes as Barrett is the subject
seen on video committing the offense.” (Attached Report of Det. Frizzell).

But there was more exculpatory evidence from police officers not the subject
of defense subpoena for the trial. Applicant was never identified by Complainant
She had reported that the person Who robbed her was right next to her, holding a gun
to her head or her side, whichever, but Complainant could not pick Applicant out of
a lineup. Detective Scesney showed the Complainant a photo lineup with
Applicant’s photo included in the array, but Complainant was unable to identify
Applicant as the robber. Counsel did not subpoena Detective Scesney for trial, either.

B. Argument.

lt is axiomatic that counsel is presumed to have prepared for trial, and
likewise, that this presumption is rebuttable. One instance of actionable ineffective
assistance was reviewed by the Supreme Court two years after the leading case on
the issue Was decided, Stricklana’ v Washington, in 1984. ln 1986 the Court reviewed
Kimmelman v Morrison, supra. l\/lr. Kimmelman had been convicted, in a trial, of
rape, and at trial he testified that the rape victim had never been in his apartment,

much less raped in his apartment What his counsel had failed to do, however, was
21

to file a discovery motion for objects seized by the police at the time of the arrest.
Police had seized a bed sheet from Kimmelman’s bed, and it was the victim’s blood
stains on that bed sheet that caused the jury to convict. The Court determined that it
was ineffective assistance for Kimmelman’s counsel not to discover the blood
stained bed sheet, as that sheet had been illegally seized with a warrantless search of
Kimmelman’s apartment Applicant’s Counsel’s failings were analogous.

Counsel failed-to review the detective’s reports, failed to learn that it was
“robbery”, not “aggravated robbery” that was charged initially, and`that charge was
predicated upon the detectives’ review of the 7-11 surveillance video revealing no
“firearm” possessed _by Applicant. Counsel failed to subpoena the officer who
conducted the photo array in which Complainant was unable to identify Applicant,
a failing that is consistent with her running from her attacker long before he was in
close enough proximity to put a gun either her head, as she reported initially, or to
her side, as she reported later and testified to at trial.

Counsel is just not free to fail to successfully marshal all exculpatory evidence
in support of her theory of defense at trial. lt is clear, from Counsel’s closing and
the motion for directed verdict filed orally prior to her closing, that the trial defense
was that Complainant could not be believed, that there was no firearm to support a

conviction for “aggravated” robbery. Certainly, the testimony of Detectives Frizzell

22

and Hinson would have supported that defense theory, and the testimony of
Detective Scesney would have supported the theory that Complainant Was never in
close proximity of the actor at the time of the incident. lt simply cannot be concluded
that Counsel’s failings were not ultimately prejudicial to Applicant’s defense, nor
that the outcome would not have differed had Counsel not failed in this manner.
Reasonably professional attorneys rendering reasonably effective assistance are not
permitted under the law to fail so completely in preparation of a case scheduled for
jury trial, especially when that jury trial is only occurring because the same Counsel
failed to discuss the terms of a plea bargain agreement that the defendant Would most

certainly have accepted

CONCLUSION AND PRAYER
lt is clear that Applicant did not receive the effective assistance of counsel.
Two plea offers were allowed to expire prior to the Applicant having a chance to
consider and accept them. Evidence that would have shown Applicant was guilty
only of a less serious offense was not investigated or used by his trial counsel. The
Applicant, alter these events, received the maximum sentence Texas law allows for

his offense. At critical points in this trial, Counsel failed Applicant, and were

23

ineffective, as a matter of law, under the Sixth and Fourteenth Amendments_to the
United States Constitution.

At trial, critical exculpatory evidence supporting the defense theory was
neither made available for presentation, but more importantly, was not presented to
the very jury Counsel was seeking to accept the reality that no aggravated robbery
was committed This type of unpreparedness is sufficient to overcome the legal
presumption that counsel prepared for trial as required by law.

W'HEREFORE, Applicant prays that this Texas Court of Criminal Appeals
issues a Writ of habeas corpus, to the end that the State of Texas is ORDERED to
respond to the instant application for habeas relief, to the end that habeas corpus
relief is GRANTED in all things, that the judgment is vacated, and that Applicant is
REMANDED to the District Court for further proceedings wherein Applicant is
permitted to accept the ten year plea agreement and be sentenced accordingly.
Applicant prays for any and all such other relief to which he may show himself

entitled, including general relief.

Respectfully submitted,€

3%§5 J/M

Clay S. Conrad

24

State Bar of Texas # 00795301
1 1767 Katy Freeway, Ste. 740
Houston, TX 77079
Tel: (281) 597-8818
Fax: (281) 597-8284
COUNSEL FOR APPLICANT

25

CERTIFICATE OF SERVICE

l hereby certify that a true and correct copy of the above Applicatz`on for
Postconvz'ction Writ of Habeas Corpus Pursuant to Artz'cle 11.072 of the Texas Code
of Criminal Procedure was hereby mailed to the office of the Travis County

Attorney, 300 County Administration Building, 314 W. 11th Street, P.O. Box 1748,
Austin, TX 78767-1748.

Dated September&, 2015. d SQMQ

Clay S. Conrad

26

¢"”'W ".,’

COUNTY OF HARRIS *
STATE OF TEXAS *

AFFIDAVIT OF DAVON PAUL BARRETT

BEFORE ME, the Undersigned Notary Public, appeared a person identified to me as Davon
Paul Barrett, who reported as follows:

“My name is Davon Paul Barrett. l arn currently incarcerated at the H.H. Coffield Unit,
2661 Fl\/l 2054, Tennessee Colony, TX 75 884. l am over 21 years of age and competent to write
this affidavit The facts herein related are true and correct and of my own personal knowledge

“l was arrested on or about January 13, 2012. On the second setting, a ten year plea bargain
offer was made on my case. My lawyer told me about it in court, but never discussed with me of
the desirability of the plea offer. ln fact, Ihe never discussed it With me at all, just let me know itF_`
Was there. l was indicted on February 17, 2012, and due to the indictment l was told the offer Was
no longer available lf my attorney had taken time to discuss this plea offer or the risks of going
to trial with me during the two weeks during which this offer Was available, l would have accepted
that offer. By letting this offer expire before discussing it with me, l believe my lawyer cost me
the opportunity to accept it.

“Another ten year offer was made on or about July 30, 2012, but it was not discussed with
me at that time. lf my attorney had taken time to discuss this plea offer or the risks of going to trial
with me on that date, l would have accepted that offer. By letting this offer expire before discussing
it with me, l believe my lawyer cost me the opportunity to accept it.

“l went to trial without my lawyer ever sitting down and discussing any plea offers With
me except in the most general terms. She was not available to answer my questions. She never
spoke to me outside of court, and spent very little time with me discussing the case in court. l do
not believe that my trial lawyers represented me properly.

“Because l never had a discussion with my lawyer about the terms or desirability of any
pleas offers the State made, l ended up going to and was sentenced to sixty years in prison. l
understand that l was found guilty, but l believe that when plea offers were made, l should have
been given the information to intelligently consider them.

z
."/ 1 l -'

Davn Paul Barrtet

“Further l sayeth not.” `

      

   
    
    

SWORN AND SUBSCRIBED TO BEFORE ME on July 13, 2015.
ve Gaye L. Karriker
£,€:5% lowry Public, Sh\¢ d fmc
~ .
fig ¢7/2°/2°15 v Notary P@olic in and for the State of Texas

.i.....".._....\I.D.I_..I°
chommluhn Exp|r¢c- MU<%‘ mm
Notary Without Bond

28

LlST OF APPLICANT’S EXHIBITS

Consultation Setting Plea Offer Acknowledgement evidencing a plea offer
often years confinement in TDCJ as of February 3, 2012.

lndictment indicating the 10 year plea offer was open for two weeks.

Status Conference report from when Counsel McGinty represented the
Applicant indicating that as of July 30, 2012 there was, again, a ten yr.
Offer from the State, open for one day, signed by Counsel and not by
Applicant, indicating Applicant never agreed to refuse the offer. (It is noted
that the Status Conference was conducted in the courtroom, and

Applicant Was available to participate as he was still in custody.)

911 Call Report from January 10, 2012 at 1131 Pl\/I, report # G0366/GP
1200000922+, from the 7-11 store at 2105 N. Hwy 360 SB in Grand
Prairie, Texas, in which Complainant first reported that the suspect did
Place a gun to her head

lncident Reports filed by Detectives Frizzell and Hinson wherein it is
reported that they both viewed the surveillance video from the 7-11 and no
firearm was possessed by theactor, and rather, the suspect approached the
Complainant without a firearm and the Complainant ran immediately and
before the suspect(s) came into close proximity with Complainant. ..

Additionally these reports indicate it was a “robbery” and not an “aggravated
robbery” being investigated as there was no firearm seen on the 7-11
surveillance video... and also reported is Det. Frizzell’s “adding charges” to
Applicant, not because of the existence of a firearm in the commission of the
offense, but because Applicant “stuck to his story” and did not confess
committing the robbery being investigated by Det. Frizzell; and finally, also
reported is the report of the photo array that resulted in no identification of
Applicant, consistent With the video evidence that the suspect never was
within close proximity of Complainant so she was unlikely to be unable to

29

identify the perpetrator because he was never close enough to see as is also
corroborated by the 7-11 surveillance video evidence

CAsE No. 1266858D coUNT oNE
INciDENT No./TRN; 9068497154

TARRANT COUNTY, TEXAS

STATE ID No.: TX07313570

THE STATE oF TExAs § IN THE 396TH DISTRICT COURT
§
v. §
§
DAVON PAUL BARRETT §
§
§
§

 

JUDGMENT OF CONVICTION BY JURY

 

JudgePresidmg: HoN. GEoRGE GALLAGHER Date‘l“dgment 5/1/2013

 

Entered:
JoE sHANNoN, JR. H , NY
Attomeyfor State HEATHER DAVENPORT §;"'f:ff§§n§‘jr §§;NIS A §§g§?§

WILLIAM VASSAR
Offense for which Defendant Convicted:

AGGRAVATED ROBBERY W'ITH A DEADLY WEAPON, TO-WIT: A FIREARM

 

 

 

 

 

 

 

 

Charging lnstrument: Statute for Offense:

lndictment - 29.03 PC

Date of Offense: .

1/ 10/ 2012

Degree of Offense: Plea to Offense:

1ST DEGREE FELONY _ NOT GUILTY

EMM - Findings on Deadly Weapon:

Guilty Yes, a firearm

Plea to 15‘ Enhancement Paragraph: n Plea to 2“d Enhancement/Habitual Paragraph:
N/A N/A

Findings on 1st Enhancement Paragraph: Findings on 2'“d Enhancement/Habitual Paragraph:
N/A N/A

Punishnient Assessed b : Date Sentence lmposed: Date Sentence to Commence:
Court 5/1/2013 5/1/2013

 

Punishment and Place
of Confinement:

60 YEARs Instiw+,ionai Division, TDcJ

THIs sENTENcE sHALL RUN N/A.

i:] SENTENCE OF CONFINEMENT SUSPENDED, DEFENDANT PLACED ON COMMUNITY SUPERV!SION FOR N/A.

 

Fine: Court Costs: Restitutiori: Restitution Payable to:
N/A $294.00 N/A \:] VICTIM (see below) \:l AGENCY/AGENT`(see below)

 

Case N0.1266858D' ~ . Page f of l

 

 

Attachment A, Order to Withdraw Funds, is incorporated into this judgment and made a part thereof

 

Sex Offender Registration Requirements do not apply to the Defendant. TEX. CODE CRIM. PROC. chapter 62.
The age of the victim at the time of the offense was N/A . `
lf Def`endant is to serve sentence in TDCJ enter incarceration periods in chronological order.

Time From: 1110/2012 To: 5/1/2013

Credlted: lfDefendant is tp serve sentence in county jail or is given credit toward fine and costsx enter dgy§ credited below.
N/A Days Notes: N/A

 

All pertinent information, names and assessments indicated above are incorporated into the language of the judgment below by reference.

This cause was called for trial in TARRANT County, Texas. The State appeared by her District Attorney.

Counsel /Waiver of Counsel §select; one)

§ Defendant appeared in person with Counsel
l:_l Defendant knowingly, intelligently, and voluntarily waived the right to representation by counsel m writing in open court.

lt appeared to the Court that Defendant was mentally competent and had pleaded as shown above to the charging
instrument Both parties announced ready fox trial A jury was selected, impaneled, and sworn. The lndictment was read to the
jury, and Defendant entered a plea to the charged offense The Court received the plea and entered it of record.

The jury heard the evidence submitted and argument of counsel The Court charged the jury as to its duty to determine the
guilt or innocence of Defendant, and the jury retired to consider the evidence Upon returning to open court, the jury delivered its
verdict in the presence of Defendant and defense counsel, if any.

The Court received the verdict and ORDERED it ente1 ed upon the minutes of' the Court.

Punishrnent Assessed bv Jurv/ Court / No election (select one)

I:l Jury. Def`endant entered a plea and filed a written election to have the Jury assess punishment The jury heard evidence relative to
the question of punishment The Court charged the jury and it retired to consider the question of punishment After due deliberation
the Jury was brought into Court, and, in open court, it returned its verdict as indicated above.

§ Court. Defendant elected to have the Court assess punishment After hearing evidence relative to the question of punishment, the
Court assessed Defendant’ s punishment as indicated above.

[:] No Election. Defendant did not n`le a written election as to whether the judge or jury should assess punishment After hearing
evidence relative to the question of punishment, the Court assessed Defendant’s punishment as indicated above

The Court FINDS Def`endant committed the above offense and ORDERS, ADJUDGES AND DE CREES that Deferidant is
GUILTY of the above offense The Court FINDS the Presentence lnvestigation, if so ordered, was done according to the applicable
provisions of TEX CODE CRIM. PROC art. 42 12 § 9.

The Court ORDERS Defendant punished as indicated above The Court ORDERS Defendant to pay all fines, court costs, and
restitution as indicated above

Punishment Options §select one§

13 Confinement in State Jail or Institutional Division. The Court ORDERS the authorized agent of the State of Teicas or the

Sheriff of this County to take, safely convey, and deliver Defendant to the Director, Institutional Division, TDCJ. The Court

ORDERS Defendant to be confined for the period and in the manner indicated above. The Court ORDERS Defendant remanded to the

custody of the Sheri.ff of this county until the Sherif`f` can obey the directions of this sentence The Court ORDERS that upon release

from confinement, Defendant proceed immediately to the Tarrant County District Clerk. Once there, the Court ORDERS

Defendant to pay, 01 make arrangements to pay, any remaining unpaid fmes, court costs, and restitution as ordered by the Court

above

I:] County J all Conf"inement/ Confinement' in Lieu of Payment. The Court ORDERS Defendant immediately committed to the
. custody of the Sheriff of County, Texas on the date the sentence is to commence Defendant shall be confined in the County Jail for

the period indicated above. The Court ORDERS that upon release from confinement, Defendant shall proceed immediately to the .

Once there, the Court ORDERS Defendant to pay, or make arrangements to pay, any remaining unpaid fines, court costs, and

restitution as ordered by the Court above.

Cl Fine Only Payment. The punishment assessed against Defendant is for a FINE ONLY. The Court ORDERS Def`endant to proceed

immediately to the Office of the County Once there, the Court ORDERS Defendant to pay or make arrangements to pay all Enes and

court costs as ordered by the Court in this cause. 3

Execution / Suspension of Sentence (select, one)

§ The Court ORDERS Defendant’ s sentence EXECUTED.

I:l The Court ORDERS Defendant’s sentence of confinement SUSPENDED. The Court ORDERS Defendant placed on community

supervision for the adjudged period (above) so long as Defendant abides by and does not violate the terms and conditions of

community supervision The order setting foi th the terms and conditions of community supervision is incorporated into this

judgment by reference

The Court ORDERS that Defendant is given credit noted above on this sentence for the time spent incarcerated

Case No. 1266858D Page Lof j

 

Furthermore. the following special findings or orders apply:
AFFIRMATI'VE FINDING; A FIREARM `

NoTicE 0F APPEAL FILED; 5/1/13

 

Signed and entered on 5/7/2013

 

 

V v

JUDGE PRESIDING

Case No_1266858D Page 2 of 5

 

 

- . _ 1 . W_/”$- /fL ,
cAUss.NUiviBER la §§ X$& l _ ‘ '
' ‘-3961Hnisr1ucr coURr
oi=

- THE srATE or TEXAS -
vs

ritan 'coUN'rY, TEXAs

 

 

CONS ULTA TION SETI`DVG PLEA OFFER ACIGVOMED GEDIENT

 

 

 

O_n`the date shown b

elow, the parties appeared in Court on this cause The prosecutor and the Attorney
for The Defendant b

oth understand and aclmowledge the follouing:

The Defendant is charged with die felony offense of:_A»< Q %@m,l/ '- O(/U v

k_J`)

Levelof offensc:

 

 

lF_elon},'_c)fth'e " t 'Degreej or State'.]ail_Felony,

or Class ` Misdemcanor

If convictcd,‘the Defcndant faces the followi

¢/Life, or

rig range of punishment: ` -

any term of not more than § 7 . years orless than ,Z years
~ In thelnstitutional Division`of the Tcxas Department of Criminal
Jusijce, and in addition§ a fine not'to exceed $ `
Be assessed .` ’ _ » ' » ' » '

____ ' . , A term of not less than 180 day
v _ Facility, 'and in nddi’cion, a fine
Assessed.

THE PLP.A BARGAiN RECOMMENDATIQN is=M 733

's or more than 2 years in the State Jail
not to exceed '$10,000 may also be

 

 

 

 

 

 

 

 

 

~._

\_ ' . ACIUQWLEDGEMENT or PLE._A BA;aGAiN oFFER `\_’

 

The ab ove-Plea bargain offer is extendednnti] W/Z%I'/" /
accepted and case pl

(date) If-the offer is not
ed by noted date',;the~offer i-.s withdrawri. - ' '

Bt'»i::;§nidng below, all parties acknowledge that the above plea offer has been conveyed to the Defendant
on 's ate. . '

Assistant Criminal District Attorney
State Bar Number "

 

 

 

 

Judge Presiding

 

 

NA_ME DAVON PAUL BARRETT v OFFENSE ROBBERY (AGG)
ADDRESS 1408 KILKENNY DR _ DATE 1/10/2012
ARLINGTON TX 76002 l.P. MON|CA MARQUEZ
RACE B SEX M AGE 23 DOB 5/7/1988 .
_ CA_SE NO. 1266858 DATE FILED 1/13/2012 AGENCY Grand Prairié PD
- C[D NO. 0691166 OFFENSE NO. b 120000922
COURT 396th District Court

 

n\mICTMENT No. 1266858 D

 

se

IN THE NAME AND BY AUTHORITY OF THE STATE OF TEXAS-2
THE GRAND JURORS OF TARRANT COUNTY, TEXAS,

duly elected, tried, empaneled, SWorn, and charged to mquire of offenses committed m Tarrant County, m the
State of Texas upon then oaths do present m and to the
3718'£ DISTR!CT COURT

of said County that DAVON PAUL BARRETT, heremafter called Defendant, in the County of Tarrant and State
aforesaid on or about the 10th day of January 2012, did

THEN AND THERE INTENTIONALLY OR KNOW INGLY, WHILE IN THE COURSE OF COMIVII'ITING
THEFT OF PROPERTY AND W'ITH INTENT TO OBTAIN OR MA_INTAIN CONTROL OF SAID
PROPERTY, THREATEN OR PLACE MONTCA MARQUEZ IN FEAR OF IM]\/H`NENT BODILY I`NIURY OR

~ DEATH, AND THE DEFENDANT USED OR EXHIBITED A DEADLY WEAPON, TO-WIT: A FIREARM,

 

Filed (Clerk's use only)

F!LED
THOMAS A WlLDER, DlST. CLERK
TARRANT COUNTY, TEXAS

FEB`17 2012 4

AGAINST THE PEACE AND DIGN`ITY OF THE STATE.

 

 

 

   

 

 

U Criminal Disttict Attomej"{ Foreman of the Grand Jury
Tarrant County, Texas -
INDICTMENT ~ ORIGINAL

@ cAusn No gy:¢,¢:gfz¢ JZ`A/M LM,&/A d“Z@/lb':l

     
   
 
   

srATE 011 TEXAS § rN THE 396“‘ JUDICIAL dlg%§lg 915/1560
§ ; . - way O/s
vs. § nrsTRIcT COURT @; `@€ 3 g 578 §§ng
0 //iM/'&f § ' gag § k
/1~/ “/ § TARRANT coUNTY, TEXAS

 

».\`_

06100/»

 

STATUS CONFERENCE

 

On the date shown below, the parties appeared in court on this cause. 'l`he Prosecutor and the Attorney for the Defendant
both understand and acknowledge the following:

Current'l`racl< Designation: - m Expedited 1;1 Basie m Complex

The Defendant is charged with the felony offense of:

 

 

And the State is also proceeding on the:

U . Enhancenient Notice

lt convicte ,-the Defendant faces the following range ofpunislnnent:
Life, or 13 any term of not more than g g years or less than dol in the institutional
Division of tl;e-L:`/:<as Depamnen of Criminal Justice and 111 addition, a fmc not to exceed

$ 56 may also be assessed

13 a tenn ofnot less than 180 days or more than 2 years in the State Jail Facility, and 111 addition, a
fine not to exceed SlO, 000 may be assessed

 

1:1 The State is proceeding under Section 12.44(3.), Texas Penal Code, and the Det`endant may be punished by
confinement in the county jail for a tenn not to exceed l year, or under Section 12.44(b), Texas Penal Code, and the
Defendant may be punished by confinement in the countyjail for a tenn not to exceed l year, by a fine not to exceed
$4,000.00, or both such confinement and i`me.

" Cl Other:

 

- r"
The final plea bargain recommendation is: / 0 V/L M C/»/
_ ' / » '

 

 

DEFENDANT’S REJECTION OF F-IN AL PLEA BARGAIN OFFER

 

 

 

This plea bargain offer is available until the Status Conference is concluded l understand that no settlement offers will be
4 made after this date. 'l`he only disposition after this Conference will be by plea of guilty as charged or triai.

 

PROSECUTOR’S CERTIFICATION OF TRIAL READINESS

 

 

 

The merits of the case have been thoroughly reviewed Pretrial Settlemen_t negotiations have been
unsuccessful and the case is ready for trial.

 

 

sTIPULATIONs

 

 

The parties hereto agree to the following stipulations`:

 

 

 

 

17

 

o - o » »
TRIAL LENGTH AND DATE

’l`he prosecutor and Defense Counsel represent that all pretrial motions and discovery have been completed and that all
required witnesses are available for trial. ' '

 

 

 

 

 

 

TRIAL CHECKLIST

'I`ypeof'l`rial: t:\ Jury'l`rial n 'l`BC

Election ofPunishment: tJ Juty 13 Court

Probation Eligible? ct No - t:1 Yes

Prior Convictions Alleged? c RepeatOft`ender n HabihtalOft`ender
. VoirDire Questionnaire: ct Standard ct Special

Number ofJurors Needed cr Standan;l ct Special
‘lntezpreterNeeded? ct No ci Yes

Special Needs? d ' m No . ct Yes

HEARINGS CARRIED WITH TRIAL

1:1 Identification 1:1 Motionto Suppress ci Confessions

m Motions in Lintine m Reputaticn l r_t Evidence Admissibility
NUMBER OF WITNESSES
_Guilt/lnnocence: ' DA Defense
Punislunent: DA 4 Defense

Estimated length of trial (in days)

 

 

TRIAL sETTING

 

 

 

The Jury will be summoned on:

 

Jury Questionnaires will be available on:

 

Trial will commence on: at'. a.m.`/p.m.

 

 

ACCEPTANCE oF NoTICE AND FIRM TRIAL DATE

 

 

 

By our signatures bclow, counsel for all patties_accept notice of the trial date and waive all matters preliminary to trial
~ ~ on the record at the Status Conference. Defense Counsel and the A tant District Att_omey confirm

   
      
 

    
     

ey cr Defendant .

State Bar No. l § LD:§ 350

 
  
 

//‘/0

State Bar ’ .

 

Deiendant

‘A`PPRovED; `

 

 

Date George Gallagher, Presiding Judge
396‘“ indicia District court ranch county, rean

18

INCIDENT HISTORY DETAIL: LAW/G120100366

(®i Initiate:

13:31:50 01/10/12 Call/Case Nbr:

G0366/GP1200000922+ .
Entry: 13:34:01 Current Status: ONSCENE
OK ~
Dispatch: 13:35:34 Primary Unit: g§§
Onscene: 13:39:25 Jurisdiction: GP
Close: Disposition:
Location: 2105 N HWY 360 SB ,GP (SEVEN ELEVEN AT NE

GREEN OAKS)
Loc Comments:

 

DAREA: Nl Current:
Beat/Stn: 21 Map Page: 70 Type: ROB Final:
RD: 1205T Page: K Priority: EP ROBBERX
Page: HAZARD
r` PRIORS EDetail
"~’i 13:34:01 ENTRY TEXT:BM PULLED A GUN oN HER,LS
YELLOWISH COLORED CAR
13:34:01 E911 LOCATIGN:423CG_NEXTEL WIRELESS,XX
\PHONE:214/416-6799 \COMP:MAPSCO
Fw 70H / 'TX0423C-3 \sRc:WPHz
\LAT:32.7859389 LON:-97.0599389
\CONF: 0% \UNCERT: BFT
\PNUM:817/211-3849
13:34:01 PRIOR GP CHECK 01/05/12 @ 07:05:22 (40
l MDRE) '
13:34:33 SUPP TEXT:POSS HEADING SB ON 360,SUSP
SAYING THEY WENT TOWARDS ARKANSAS
13:35206 UPDAIE COMP:MAPSCO FW 7OH / TX0423C-3--
>MDNICA
13:35:06 SUPP TEXT:SUSP 2 BMS STOLE PURSE,
\NAME:MONICA
;;) 13:35:16 SUPP TEXT:FEMALE REFUSED EMS,CALLER HU

CALLING BACK

r~¢, nr~t_\"r\n."_a__\r\r\_.._:_"H:1 1 T I’XIU\{".»..-l\l\/|' nnnnnn \l\lf aaaaaa r'\;or\lnvn'z l~th'v\ l/l 0/’).012

Law lncident #20100366

13:
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362
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Page 2 of 9

DISP-ENR 2§§ 132

ID
ID
SUPP

BACK-ER
ID
SUPP

BACK~E
ID '
PREEMPT
REPLACE
ID
BACK-ER
ID

MISC
INSRVICE
MISC
SUPP

MISC

BAcK-ER
ID
oNScENE
sUPP
MISC

ONSCENE
MISC

MISC

453 (P224)NEW,GREGORY F.

124 (PlQO)BROWN,LESLIE J.
TEXT:COMPL IN A WHI TOYO SCION,
CALLER ONLY SAW ONE HANDGUN,
121 129

160 (P225)ANGUIANO,RAYMOND JR

TEXT:SUSP PULLED GUN TO HER HEAD
AND ASKED FOR THE MONEY,SUSP GOT
INTO HER VEH

126 (P101)GARCIA,oscAR

122 121

127 (9153)LEPAK,DENNIS J.

121 122

126 (Plol)GARcIA,oScAR

12§, FROM cARRIER/DESCO

122

g§§, ROY oRR/wN cARRIER
TEXT:cALLER DIDNT GET ANYTHING
FURTHER oN sUsP vEH,No LP,Nol
DECALS oR sTIcKERs,***sUSP VEH
LIGHT coLoRED YELLOW PT cRUsIER***
.366 4, cALLING ARLINGTON PD As
wELL

121 121

121 (Poa?)szEMPRUCH,MITcH

gsa

TEXT:***$PANISH SPEAKING FEMALE***
.366 4, REQ c140 To BoLo sUsP INFo
To SOUTH UNITS

121

g§§, HAVING To USE TRANSLATOR, To
GET DESC

g§§, coRREcTIoN ~~BEIGE PT cRUIsER

file://C:\Tiburon\GPrair75 1 l LIVE\Cad\Message\MessageDisplay03 .htm _ 1/10/2012

CASE REPORT

GRAND PRA|R|E POL|CE DEPART|V|ENT
GRAND PRA\R|E, TEXAS

CASE SUiV[MA.RY:

The complainant in this offense is Monica Marquez. The defendant in this offense is Davon Barrett.

On January 10, 2012 at l:34 pm, thcer G. New #224 and Ofiicer O. Garcia #101, responded to a robbery that had
just occurred at the 7-ll Store, 2105 N. Hwy 360 #A, in which two black males stole a purse at gunpoint. With the
aide of a translator, the Spanish-speaking caller described the suspect‘s vehicle as gray, yellow or beige in color. On
arrival, Ofticer New met with Monica Marquez sitting in her white 2006 Toyota Scion alongside pump #2. Using a
translator, Ocher New learned that one of the suspects was armed with a silver semi~automatic pistol. After viewing
the security video, Acting Sergeant R. Anguiano radioed the suspect's vehicle was a gray PT Cruiser type vehicle
with the driver as a black male wearing a tan / light color sweatshirt and the passenger wearing a black hooded
jacket.

O’r`iicer Garcia arrived at the store and interviewed Ms. Marquez. She advised that she had stopped at the 7-1 l to get
gasoline and pulled at pump number #2. She went inside to pay for gasoline and food items and walked back to her
vehicle to pump the gas. As she was about to get into her car, she felt a blunt object thrust on her left ribcage. She
turned and saw a black male holding a silver semi-automatic pistol against her side, lmmediately, she darted around
behind her car'and rushed to the front of the store where she hid behind another customer's car parked nearby.
Looking over the customers car, she saw a gray P'l` Cruiser-type vehicle exiting the parking ]ot, heading southbound
on S.H. 360. Marquez advised that her black Coach purse was stolen from underneath the driver's seat. The purse
contained her Texas driver's license, Well Fargo debit card, Wal-Mart debit card, $800 pesos and $350-$400 in US
currency. A description was broadcast of the suspect information

Approximately l 1 minutes later Police Chief Dye and Assistant ChiefTrask located a silver Chevrolet HHR with
temporary tag 13M4124 at the Shell station located at 3080 Mayt`ield getting gas. The subjects matched the physical
description provided by the complainant The subject wearing black walked out of their view and the subject
wearing the light color clothing started to drive away. Chief' Dye stopped the vehicle in the 1800 block of S. Hwy
360 and found that the driver, Davon Barrett, was operating the vehicle with a suspended license a.nd Barrett was
subsequently arrested. Barrett had $258.00 in his possession at the time of his arrest. The subject wearing black was
not located.

Detectives A. Frizzell and T. Hinson responded to the location and reviewed the surveillance video and determined
that the suspect vehicle was actually a silver Chevrolet HHR. The driver of the vehicle is seen getting out and
approaching the complainant who turns and runs away. 'I`he driver then reaches inside her car and returns to the
HHR. The passenger in the I-IHR gets out of the vehicle and is walking at the back of the car when the driver gets
the purse and starts back to the vehicle. Both subjects get into the car and it leaves south on the 360 service road.

thcer Wallis #165 went to the EZ Mart and checked the area where the HHR was getting gas and located the black
purse taken in the offense in a trash can near the gas pump where the vehicle was first observed by Chief Dye.

Ot’ticers reviewed the video from the Shell and saw the vehicle pull up to the pumps with Barrett driving. The
subject in black is seen putting the purse in the trash can and walking away. Barrett puts gas in the vehicle and
drives away before being stopped.

Det. Frizzell returned to the station and had the complainant prepare a written statement about the incident in
Spanish. Frizze]l prepared a six picture photo lineup that contained a picture ofBarrett. Frizzell gave the
complainant the lineup instruction sheet in Spanish and allowed her to read it. She did so and advised that she did
not have any questions Det. Scesney then showed the complainant the lineup but she was unable to identify Barrett
because she only saw him for a matter of seconds and ran.

Frizzel| obtained the complainant’s purse ti'om the property room and returned it to her. She advised that her Tx DL,
a Wal-Mart card, a Wells Pargo Card, between $350 and $400 in U.S. currency, and 700 - 800 Mexican pesos were
missing from her purse,

Det. Frizzell then met with Barrett in thejail and read him the Miranda Waming and Ban'ett agreed to discuss the
case. During the interview, which was recorded, Barrett advised that he had started to FT. Worth to look for a job
but traffic was too bad on NB 360. He said that he turned around and came back and received a call from a subject
he knows as K~Ray or KT. He said that he stopped at the Windsprint Apartments at Arkansas and 360 and spoke
with K~Ray / KT who said that he had been out hitting licks and needed a ride. He said that K-Ray I KT had a purse
in his pants. He said that K-Ray was wearing a light sweat shirt like the one he had on. Barrett said that he took him
to the Shell at 360 and Mayt`leid where K-Ray used a credit card at the pump to buy him gas and then walked away.
He said that he was stopped as he left the location. Frizze|l asked him about his vehicle being on video at the time of
the offense and that it was only llminutes later when he was seen at the EZ Mart. He said that K-Ray drives a
vehicle just like the one that he was driving lt became obvious to Frizzel| that the defendant was going to stick with
that story so he stopped the interview.

On January l l, 2012 Det. Hinson obtained a search warrant for Barrett's HHR. The warrant was executed and CSl
Katy Gildner took photographs of the vehicle. She processed the passenger side of the vehicle for finger prints in an
effort to identify the other subject that walked away from the vehicle. A search of the vehicle was conducted and
several documents were location with different names from the owner and the defendant None of those documents
were related to this case but were seized to see if they belong to other victims. CSI Katy Gildner located partial
prints on the passenger door that were collected.

Det. Frizzell and Det. Hinson went to the 7-l l and obtained a copy'of the video of the offense.

On January 12, 2012 Det. Friazell met with Penny Banks at EZ Mart and obtained a copy cf the video ii'om that
location.

Det. Frizzell prepared this case and filed it with the T.C.D.A. for prosecution while the defendant was in custody.

12`-922 Z“B‘ifi`°'“"°
Grand Prairie Police Department

Reporth oats
1525 Arkansas La_.ne 01/10/2012
Police Department
Naxure orcan
RROB ,
other
Grand Prairie, TX 75052 BOVINO,RAFAEL

 

(972)237-8790

(972)237- -8744
..-.ra é information -- '

 
   
   
   

 

supplement No ' Reponee mate Reponed nme

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

MHW
Grand Prairie Police Department 01/10/2012 - 22 :11
CAD Ca|| No t Status Nature of Ca|l
120100366 ARREST ROBBERI
Lp_catiun _ city zlP code Rep oust
2105 N HWY 369 SB _ Grand Prairié 75050 1235T
Area Bar From pate Fro_m `Hme CF§_§
Nl_r 2100 01/10/2012 13:31 C358/BOVINO,RAFAEL _ v
Assignm_en' Enjl_ered by Asslgpme¢_lt R_MS Transier P¢bp Tran$ S_lal
SUPPORT - DETENTZ_£ON C358 SUPPORT - DETENT_ION Succes_sful Suc_céssful
Approving Offloer Approval Dnte Appnwal Time `

` 91/10/2012

    

AdAddlflOnal Charge¢$| Of. AGGROBBERY 29. 03 F1, AlP BARRETT, DAVON
DO R.BOV|NO C358

Narrative: (REQU|RED)

In the County of: DALLAS

On 01/10/2012 at about 1815 hours, Det. Frizzell dropped off the affidavit to add a new charge to A/P Barrett.
Davon. Charge Was added nothing further

 

Report Ofticer Prirrted At
C358/BOVINO,RAFIEL 11/30/2012 15:09 Page 1 of 1

 

 

 

 

 

SHARON KELLER
PRESID|'NG IUDGE

LAWRENCE E. MEYERS
CHERYL JOHNSON
MlKE KEASLER
BARBARA P. HERVEY
ELSA ALCALA
BERT RICHARDSON
KEVIN P. YEARY
DAVlD NEWELL

JUDGES

&’><~Z

 

ABEL ACOSTA
COURT OF CRIMINAL APPEALS (S|g)g:);_i<|$$|
P.o. Box 12308, CAPIToL srATioN `
AUSTIN, TEXAS 78711 S,AN SCH,LHAB
‘ GENERALCOUNSEL

(512) 463.1600

September 29, 2015

Looney & Conrad P.C.

RE: Davon P. Barrett #1854612
918 Austin Street
Hempstead, TX 77445

RE: Trial Court Case #1266858D

Dear Mr. Barrett:

We are returning this writ application because it does not comply With Article 11.07, Section
3(b) of the Code of Criminal Procedure.

A writ seeking relief from a final felony conviction under Code of Criminal Procedure Article
11.07 must be on the prescribed form and must be filed with the District Clerk in the county of
the conviction. The District Clerk Will then prepare a record and transmit to the Court of

Criminal Appeals.
Sincerely, ' \X`

Abel M)sta, Clerk

AA/kd
Enclosure

SUPREME CouRT Bun.oiNG, 201 WEST I4TH STREF.T, RooM 106, AUSTIN, TEXAS 78701
Waeslre www.CCA.couRTs.srATE.rx.us

less )

LOONEY & CONRAD October 6, 2015
918 Austin Street
Hempstead, Texas 77445

CERT|FlED MA|L RETURN RECElPT
No. 7015 0640 0007 9315 9414

Criminal District Clerk

TARRANT COUNTY COURTHOUSE
109 East Weatherford Street
Fort Worth, Texas 76196

RE: Origina| Application for a Writ of Habeas Corpus

Pursuant to Art. 11.07 Tex. Code Crim. Proc.‘

DAVON PAUL BARRE`IT, District Court Ca$e NO. 1266858

396TH JUD|C|AL DlSTR|CT COURT
Dear Clerk:

ENCLOSED PLEASE FlND the original application for a Writ of habeas corpus for filing in the
above-referenced case. This office was notified this date that the document could not be e-fi|ed as

there is no e-fi|ing for criminal documents.

Please note additionally that this document was originally filed in the Texas Court of Criminal
` Appea|s, in error, by mai|, on September 23, 2015. This filing with your office is to correct that error,

Thanking you in advance for your assistance and cooperation in this matter, and l remain,
Sincerely,

Brent Liedtke
Lega| Assistant to:
Clay Conrad, esq.
TBA # 00795301

CC: file

lBL/bl

Case No.
(The Clerk of the convicting court Will till this line in.)
IN THE COURT OF CRIMINAL APPEALS OF TEXAS
APPLICATION FOR A WRIT OF HABEAS CORPUS

SEEKING RELIEF FROM FINAL FELONY CONVICTION
UNDER CODE OF CRIMINAL PROCEDURE, ARTICLE 11.07

NAME; D Fl'\/OA) /?/41/¢ 3 M/ZF?’?'
DATE oFBIRTH: /i"/H 7 1 /Y§Y

PLACE oF CONFINEMENT: /1'-/+- /DFF/€CO d /Ui '7/`. TH)/U€§§ee/ €¢€¢m Y) 7:{/

TDCJ-CID NUMBER= a&.§_&/_él;_ Sn) NUMBER:

(1) This application concerns (check all that apply):

 

§ a conviction l:l parole
El a sentence l:l mandatory supervision
l___l time credit l:l out-of-time appeal or petition for

discretionary review

(2) What district court entered the judgment of the conviction you Want relief from?
(lnclude the court number and county.)

36[.6’7'1/1 D/,§T)Zm' C'F/, 7_/41'1/2/4707' gov/u/PT/,‘VA/

(3) What Was the case number in the trial court?

1266€"§`39

(4) What was the name of the trial judge?

va - § eca/lep g/%LL file/107

Effective: January 1, 2014 l

(5)

(6)

. (7)

(8)

(9)

(10)

Were you represented by counsel? If yes, provide the attorney's name:

Yl€$. L 1514 mi/LL€»/»l. Gc‘w/§ A/ Mch//\)T§’T/
AZ ima/105

What was the date that the judgment was entered?

M/M /J, Q¢?/§

For What offense were you convicted and what Was the sentence?

A§¢£'M)+Te)l QDBB€M w//D€Hz)zz/ N<€/WW)

If you were sentenced on more than one count of an indictment in the same court at
the same time, What counts were you convicted of and what was the sentence in each

A{///

 

What Was the plea you entered? (Check one.)

l:l guilty-open plea l:l guilty-plea bargain d
E'~ not guilty l:l nolo contendere/no contest

If you entered different pleas to counts in a multi-count indictment, please explain:

 

 

What kind of trial did you have?

l:l no jury l:l jury for guilt and punishment
IX jury for guilt, judge for punishment

(11)

<12)

(13)

(14)

Did you testify at trial? If yes, at what phase of the trial did you testify?
wl

Did you appeal from the judgment of conviction?

|;_yes l] no

If you did appeal, answer the following questions:
(A) What court of appeals did you appeal to? §§ "”77 77 915 7'7 / 5 T' ’

(B) What was the case number? 0 Z 'I 3 " 9 6 2 0 § ”C ll

(C) Were you represented by counsel on appeal? If yes, provide the attorney's
name:

l /§ /4 /W adam
(D) What was the decision and the date of the decision? AFF/F{/; J`u NC 5_/ Z£')) (/
Did you file a petition for discretionary review in the Court of Criminal Appeals?
E*yes d l:l no
If you did file a petition for discretionary review, answer the following questions:
(A) What was the case number? ;D D _0 66? ` j L/
(B) What was the decision and the date of the decision? /z € F(/} ed / 06 '_‘ '7%23'] cl

Have you previously filed an application for a Writ of habeas corpus under Article
11.07 of the Texas Code of Criminal Procedure challenging this conviction?

l:l yes E_no
If you answered yes, answer the following questions:

(A) What Was the Court of Criminal Appeals’ writ number?

(B) What was the decision and the date of the decision?

 

(C) Please identify the reason that the current claims were not presented and could
not have been presented on your previous application.

 

 

 

 

(15) Do you currently have any petition or appeal pending in any other state or federal

(16)

court?
E yes E<no

If you answered yes, please provide the name of the court and the case number:

 

If you are presenting a claim for time credit, have you exhausted your
administrative remedies by presenting your claim to the time credit resolution
system of the Texas Department of Criminal Justice? (This requirement applies to
any final felony conviction, including state jail felonies)

l:l yes E"no
If you answered yes, answer the following questions:

(A) What date did you present the claim? y / H_

(B) Did you receive a decision and, if yes, what was the date of the decision?

 

If you answered no, please explain why you have not submitted your claim:

TlA/¢T 15 par rko /5}‘/£ l>/eze~

(17)

 

 

 

 

 

Beginning on page 6, state concisely every legal ground for your claim that you are
being unlawfully restrained, and then briefly summarize the facts supporting each
ground. You must present each ground on the form application and a brief
summary of the facts. If your grounds and brief summary of the facts have not been
presented on the form application, the Court will not consider your grounds.

If you have more than four grounds, use pages 14 and 15 of the form, Which you
may copy as many times as needed to give you a separate page for each ground, with
each ground numbered in sequence. The recitation of the facts supporting each
ground must be no longer than the two pages provided for the ground in the form.

You may include with the form a memorandum of law if you want to present legal
authorities, but the Court will not consider grounds for relief set out in a
memorandum of law that were not raised on the form. The citations and argument
must be in a memorandum that complies with Texas Rule of Appellate Procedure 73
and does not exceed 15,000 words if computer-generated or 50 pages if not. If you
are challenging the validity of your conviction, please include a summary of the facts
pertaining to your offense and trial in your memorandum.

GROUND ONE:
l/\/ c F;ecn d c /t§§ gran/ce w F¢e)+

B riffe/tm Prage§§

FACTS SUPPORTING GROUND ONE:
fig A~m¢/ci@l fierman/own

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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GROUNDTWO:
//U€F¢e¢~m/e Aaz//rn~¢e A»r renew

FA/L,j};@, 1~0 Fa/~T Oi/T FL/fZ-//( //U 5"'/0€4"[€

FACTs sUPPoRTING GROUND Two:
§K€ %WHZ»le/j /Wema?Mod/r/

 

 

 

 

 

 

 

 

 

 

 

 

GROUND THREE:

;' 6\3€ lg+lr\ Lz_'._'_:§¢t LMrLf"'R

Cor\ educ/iqu }Q»}~NQ»Q¢~\ C/¢.)JS "l€$'l‘\:~] MMUS:

FACTS SUPPORTING GROUND THREE:

S€€ ri'i+C/LQ

yV\PIWQd/'\QCALW\./

 

 

 

 

 

 

 

 

 

 

 

 

 

10

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

11

v GROUNi)FonR.
/l` v`Q Q$S‘\S”l'<'M/\UL_,/F§LL@ ’§c/\S;Q\ § i/¢\E“\§rwi~°\
O\rjw\ iva allee iav€;\l‘j¢vl\av\©\¢ O\}$`4 ~al;rwr£wfvi`

54?¢1?0\\)&$&@@ mialo»wu mr w\§&vt)ieu~) gf SuL/"B?Q/er\o\

LN Q§ Z~ IK?’Q Fl'\»HD/Ll/]\l »;1/1/\ 5_,(
FACT SIUPPORT GGRO FOUR°

 

 

 

 

 

 

 

 

 

 

 

 

12

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

13

WHEREFORE, APPLICANT PRAYS THAT THE COURT GRANT APPLICANT
RELIEF TO WHICH HE l\/lAY BE ENTITLED IN THIS PROCEEDING.

VERIFICATION

This application must be Verif`ied or it will be dismissed for non-compliance For
verification purposes7 an applicant is a person filing the application on his or her own behalf. A
petitioner is a person filing the application on behalf of an applicant, for example, an applicant’ s
attorney, An inmate is a person who is in custody

The inmate applicant must sign either the “Oath Before a Notary Public” before a
notary public or the “Inmate’ s Declaration” without a notary public. Ifthe inmate is represented
by a licensed attorney, the attorney may sign the “Oath Before a Notary Public” as petitioner and
then complete “Petitioner’ s Information. ” A non-inmate applicant must sign the “Oath Before a
Notary Public’7 before a notary public unless he is represented by a licensed attorney, in which
case the attorney may sign the Verification as petitioner.

A non- inmate non-attorney petitioner must sign the “Oath Before a Notary Public”
before a notary public and must also complete “Petitioner’ s Information ” An inmate petitioner
must sign either the “Oath Before a Notary Public” before a notary public or the “lnrnate’ s

Declaration” Without a notary public and must also complete the appropriate “Petitioner’s
lnformation.”

OATH BEFORE A NOTARY PUBLIC

STATE OF TEXAS

COUNTY oF :{:Z §§ gm

0 l /H § - gm /z }<),O being duly sworn, under oath says: “I am
the applicant /@circle one) in this action and know the contents of the above
application for a writ of habeas corpus and, according to my belief, the facts stated in the

application are true.” %///\%

AS/;r‘::?iiw_r§n£appiimi»/ P?(fi°n@r <°ir°l¢ °“C)

SUBSCRIBED AND SWORN TO BEFORE ME THIS /7 DAY OF § i); di?’, 20 /,/2"'.

cme @…@W 0). ?Mwév

f MY COMM|SS|ON EXP|RES

Signatilre of Notary Public

 

16

PETITIoNER’s n\iFoRMATION
Petitioner’s printed name: /l l /l"{ z 5077 /? AU
state bar number, if appiicabie: 0 0 74 §` ;@11
Address: [@°N@“\ é»/ dM)Z )*?OI, /)- [’
//7;7 /</4#./ F»J "/,, H= 7¢/0
t/w§vm 'r/i/ 7 7@77
reiephone: 2 3 /’ 9‘? 7’ § § //Z l

Fax: 23/’§97“' z/;Z§L/
INMATE’S DECLARATION

I, , am the applicant / petitioner (circle one) and

being presently incarcerated in , declare under penalty of

 

perjury that, according to my belief, the facts stated in the above application are true and correct.

 

Signed on , 20

 

Signature of Applicant / Petitioner (circle one)

17

Ex Parte

DAVON PAUL
BARRETT
Applicant

OMOMC»UW>@

WRIT NO.

MEMORANDUM OF LAW ON

APPLICATION FOR POSTCONVICT!ON

WRIT OF HABEAS CORPUS

PURSUANT TO ARTICLE 11.072

OF_THE TEXAS CODE OF CRIMINAL PROCEDURE

To the Honorable Judges of the Texas Court of Criminal Appeals:

COMES NOW Davon Paul Barrett, Applicant, by and through his Attorney
of Record, Clay S. Conrad, Petitioner, to petition this Honorable Court to grant a
Writ of Habeas Corpus pursuant to Art. 11.07 et seq. of the Texas Code of Criminal
Procedure, seeking that the conviction and judgment against him be vacated, and in
support shows the following:
I.
STATEMENT OF FACTS

Applicant is presently being illegally and unconstitutionally confined and
restrained of his liberty under color of a judgment and sentence against him from the
396th District Court, Tarrant County, Texas, Judge George Gallagher, Presiding.
Applicant is currently serving a sixty (60) year sentence at the H.H. Coffield Unit in

Tennessee Colony, Texas.
Applicant Was convicted following a jury trial of Aggravated Robbery With a
Deadly Weapon on May 1, 2014 in Cause No. 1266858D, Tarrant County, Texas.

1

The Applicant Was sentenced by Judge Gallagher to sixty (60) years in the custody
of the Texas Department of Criminal Justice on May 1, 2015.

Applicant filed a direct appeal in the 2nd Court of Appeals, Cause No. 02-13-
OOZOO_CR, which was decided against him in an unpublished opinion on June 5,
2014. He then filed a Petition for Discretionary Review before the Texas Court of
Criminal Appeals, which was refused October l, 2014 in Cause No. PD-0869-14.
The mandate on this direct appeal issued November 10, 2014. This petition follows.

II.
JURISDICTIONAL STATEMENT

Jurisdiction is invoked pursuant to the provisions of Article 11.01, et seq., of
the Texas Code of Criminal Procedure. Applicant is unlawfully and
unconstitutionally confined and restrained of his liberty in violation of Article I,
Section 10 of the Texas Constitution and the Fifch, Sixth, and Fourteenth
Amendments to the United States Constitution. A copy of the relevant exhibits are
hereto attached and incorporated by reference the same as if copied in full and set

forth at length herein.

III. .
GROUNDS FOR RELIEF
This restraint is unlawful because:

(1)Counse1 Al Lazarus rendered ineffective assistance in that he failed to investigate
the law and the facts and advise Applicant as to the advisability of taking a plea
agreement prior to the expiration of the agreement, thus depriving Applicant of

2

the ability to make an informed decision concerning the 10 year plea agreement
offered by the State.

(2) Counsel Glynis A. McGinty rendered ineffective assistance in that she failed to
investigate the law and the facts and advise Applicant as to the advisability of
taking a plea agreement prior to the expiration of the agreement, thus depriving
Applicant of the ability to make an informed decision concerning the 10 year plea
agreement that had been offered by the State.

(3)Counse1 Glynis A. McGinty rendered ineffective assistance in that she failed to
note and argue before the jury the contradictions between the videotape of the
alleged crime and the complaining Witness’ initial report of the crime and her trial
testimony, when the videotape revealed no firearm in the possession of Applicant
nor Applicant coming within close proximity of the complainant to have held a

firearm to her head, as she initially reported, nor to have held a firearm to her side
as she testified at trial

(4)Counse1 rendered ineffective assistance by failing to note and argue that the
aggravated robbery the State ultimately charged was unsupported by the police
investigation, and Counsel failed to interview and subpoena witnesses to
support such defense at trial.

IV.

ARGUMENT AND AUTHORITIES

Ground One:

Counsel Lazarus rendered ineffective assistance in
that he failed to investigate the law and the facts and
advise Applicant as to the advisability of taking a
plea bargain agreement prior to the expiration of the
agreement, thus depriving Applicant of the ability to

make an informed decision concerning the 10 year
plea agreement that had been offered by the State,
Ground Two:

Counsel McGinty rendered ineffective assistance in g
that she failed to investigate the law and the facts and
advise Applicant as to the advisability of taking a
plea bargain agreement prior to the expiration of the
agreement, thus depriving Applicant of the ability to

make an informed decision concerning the 10 year
plea agreement that had been offered by the State.

A. Ground One: Ineffective Assistance of Counsel Rendered During Plea
Negotiations by Counsel Lazarus.

Prior to the trial of this case, offers of ten years’ incarceration were
made Counsel, not once, but twice. The first offer was made to counsel, ten
years’ incarceration, and the initial offer was held open until such time as
Applicant was indicted. Counsel was appointed to represent Applicant on
January 23, 2012. C.R. 12. The initial plea offer by the State of ten years’
incarceration was made at the consultation hearing on February 3, 2012. See
“Consultation Setting Plea Offer Acknowledgement, attached hereto and
incorporated herein for all purposes, as well as, Affidavit of Davon Paul
Barrett, likewise attached hereto and incorporated herein for all purposes. The

indictment was returned two weeks later on February 17, 2012. (Attached).

4

In that two week period Counsel failed in his duty to conduct an independent
investigation into the law and facts of the case. That two week period was
critical in that the ten year offer was only good, per Counsel’s agreement with
the State, up to indictment Applicant Was in custody during this two week
period, and Coiuisel failed to communicate With Applicant. During that two
week period, it appears Counsel did nothing. It is beyond cavil that he did not
visit Applicant in jail to speak with Applicant about the plea offer. Nor did he
request additional time from the Tarrant County District Attorney’s Office
. prior to seeking an indictment so that he could complete discovery and confer
with Applicant. He simply let the offer lapse without action, and by doing so

deprived Applicant of any opportunity to accept the outstanding ten year plea

offer.

B. Ground Two: Ineffective Assistance during Plea Negotiations by Counsel
McGinty

The State again made a ten year offer, prior to the case going to trial, on July
30, 2012. (Attached). This offer was made at the Status Conference. The State held

that offer open for only one day. At that time, Counsel McGinty was Applicant’s

trial counsel. Ia’.l In light of the State’s overwhelming case and the prior bad acts the
State had noticed and intended to introduce at trial, Counsel had a duty to act with
some urgency and advise Applicant concerning the merits of the ten year plea offer.
In spite of this, Counsel did not discuss the advisability of accepting this offer with
Applicant. ln fact, Counsel failed to apprise Applicant that the ten year offer was

available. It was not until it was too late for the offer to be accepted that Applicant

learned of it.

` C. Harm Analysis

Prejudice is empirical. Applicant has sworn that if either Counsel had
discussed with him the advisability of either of these plea offers, along with the risks
of going to trial, he would have taken the offer. See Affidavit of Davon Paul Barrett,
(Attached). Because both offers expired without his attorneys discussing them with
him, he was deprived of the opportunity to accept them. See Affidavit of Davon Paul
Barrett. (Attached). As Applicant received a sixty (60) year sentence following trial,
the harm of being denied the opportunity to seriously consider and accept these plea

offers is beyond serious debate. lt is beyond cavil that an additional fifty (50) years

 

1 While the record clearly shows that Ms. McGinty took over representation of the Applicant, the record does not
show a Motion for Substitution. It is unclear from the record exactly When she took over the case.

6

of incarceration cannot sensibly be deemed “not prejudicial”. The Supreme Court
has declared that Where sentencing is concerned even a single extra day in prison
attributable to defense counsel’s ineffectiveness is prejudicial United States vs.
Glover, 531 US 198 (2001). A ten year sentence, which Applicant should have been
strongly advised to accept, and which Applicant would have accepted, was
cavalierly left to expire on two occasions. Prejudice to Applicant is empirical under
these facts. See Ex parte Wz'lson, 724 S.W.2d 72, 74 (Tex. Crim. App. 1987).

But both Counsels’ ineffectiveness did not end with their collective
unreasonable procrastination. Both Counsel failed to note that Applicant was, for all
intents and purposes, predisposed to accept the plea agreement offered by the State.
In the prior bad acts noticed by the State there is a collection of incidents in which
bad acts were alleged, leading to a collection of arrests, followed by a collection of
prosecutions by the same prosecution team heading the instant prosecution of
Applicant. In each and every, all and singular, the prior bad acts that led to the arrest
of Applicant that resulted in prosecutions being pursued Applicant pleaded GUILTY
each and every time! Not once, in the prior bad acts alleged by the State, did this
Applicant fail to Waive his right to trial and plead guilty. Given the voluminous
record of prior bad acts noticed by the State it would have been professionally

reasonable for either Counsel to simply realize this case could be resolved with a

7

plea of guilty unless something defensible could be revealed in either Counsels’
independent investigation of the facts of the case. As nothing was revealed by either
Counsel, both Counsel rendered ineffective assistance in failing to note that
Applicant was predisposed to waive trial and enter a plea of guilty immediately after
either of the two ten year prison sentence offers were made by the State. Given-this

reality, Counsels’ procrastination in resolving this case via plea of guilty and ten

year sentence accepted is everinore unreasonable

D. A Lawyer’s Duty Concerning Plea Bargains

The Sixth Amendment, applicable to the States through the Fourteenth
Amendment, provides that the accused shall have the assistance of counsel in all
criminal prosecutions The right to counsel so guaranteed is the right to effective
assistance of counsel. See Strickland v. Washingron, 466 U.S. 668, 686, 104 S. Ct.
2052, 80 L. Ed. 2d 674 (1984). The Sixth Amendment requires that the accused
receive effective assistance of counsel at all critical stages of litigation. United States
v. Cronic, 466 U.S. 648, 659 (1984).

The negotiation and consideration of plea offers have been deemed critical
stages of trial. c"l`he negotiation of a plea bargain is a critical phase of litigation for

purposes of the Sixth Amendment right to effective assistance of counsel.” Padz`lla

8

v. Kentucky, 559 U.S. 356, 373 (2010). A defense attorney has an obligation to fully
advise his client of the terms and desirability of plea offers extended by the State. It_
is well established that a criminal defendant is entitled to effective assistance of
counsel during the plea bargaining process. Ex parte Wilson, 724 S.W.2d 72, 73
(Tex.Crim.App. 1987). All plea bargain offers must be communicated promptly to
the accused. Id. at 74. In Wilson, the Court of Criminal Appeals determined that
counsel’s failure to inform his client of a plea offer by the State fell below the
objective standard of reasonableness which caused prejudice against the defendant
and was, therefore, ineffective assistance of counsel.

To provide effective assistance concerning plea matters, “counsel has a duty
to render his best judgment to his client about What plea to enter, and that judgment
should be informed by an adequate and independent investigation of the facts of the
case.” Ex parte Reea’y, 282 S.W.3d 492, 500 (Tex. Crim. App. 2009). Counsel has
an absolute duty "to conduct a prompt investigation of the circumstances of the case
and to explore all avenues likely to lead to facts relevant to the merits of the case."
Ex parte Briggs, 187 S.W.3d 458, 467 (Tex. Crim. App. 2005). “Applicant was
entitled to rely upon her counsel "to make an independent examination of the facts,
circumstances, pleadings and laws involved and then to offer his informed opinion

as to what plea should be entered" based upon an informed investigation of the

9

facts. . .” Id. at 469, citing to Von Moltke v. Gillies, 332 U.S. 708, 721, 68 S. Ct. 316,
92 L. Ed. 309 (1948) and McMann v. Rz`chara’son, 397 U.S. 759, 769-70, 90 S. Ct.
1441, 25 L. Ed. 2d 763 (1970)(defense counsel must make his judgment as to the
weight of the state's case and share his predictions with the defendant even though
the predictions are necessarily uncertain). 4

Counsel Lazarus had a two week period of time to investigate the case and
discuss the plea offer With Applicant. He failed. Applicant was prejudiced.

Counsel McGinty had a shorter period of time - one day. But even the “one
day” is deceiving with respect to the issues presented herein. As Counsel admitted
in her final day of trial voir dire examination of Applicant relative to his waiving his
right to testify, Counsel had represented Applicant for “. .. almost a year ...”.
However, it does not appear she ever discussed with Applicant the fact that the offer
had been made, much less took the time to inform him of the evidence she was then
aware of that would “1ead to facts relevant to the merits of the case.” Reedy, supra
The reset form containing notes of the offer was never signed by Applicant so there
is no empirical evidence he was aware the offer was open. Applicant never had a
meaningful and informed opportunity to consider either plea offer. Additionally,
Counsel McGinty signed a reset form for TRIAL. lt must be presumed that When

she did this she had conducted here independent investigation, that she was aware

10

of the overwhelming evidence of guilt, of the prior bad acts of Applicant that were
admissible at trial, and even of the reality that Applicant had pleaded guilty each and
every opportunity he had to do so. Given these facts it seems that a professional
attorney rendering reasonably effective assistance would have discussed the ten year
plea offer sometime inside the 24 hour window allowed by the State to accept the
plea offer.

The United States Supreme Court has noted:

“The reality is that plea bargains have become so central to the administration
of the criminal justice system that defense counsel have responsibilities in the
plea bargain process, responsibilities that must be met to render the adequate
assistance of counsel that the Sixth Amendment requires in the criminal
process at critical stages. Because ours "is for the most part a system of pleas,
not a system of trials," it is insufficient simply to point to the guarantee of a
fair trial as a backstop that inoculates any errors in the pretrial process, "To a
large extent . . . horse trading [between prosecutor and defense counsel]
determines who goes to jail and for how long. That is what plea bargaining is.
lt is not some adjunct to the criminal justice system; it is the criminal justice
system."... ln today's criminal justice system, therefore, the negotiation of a
plea bargain, rather than the unfolding of a trial, is almost always the critical
point for a defendant.”

Mz`ssouri v. Frye, 132 S.Ct. 1399, 1407 (2012)(citations omitted). Frye
unambiguously held “defense counsel has the duty to communicate formal offers
from the prosecution to accept a plea on terms and conditions that may be favorable

to the accused. . . When defense counsel allowed the offer to expire without advising

ll

the defendant or allowing him to consider it, defense counsel did not render the
effective assistance the Constitution requires.” Id. at 1408.

That case could not be more directly on point. Galin Frye Was charged with
his fourth offense of driving with a revoked license, a felony carrying a maximum
sentence of four years. The State made two time-limited offers: 1) a 3-year sentence
to the felony charge, no recommendation regarding probation but a recommendation
that Frye serve 10 days in jail, or 2) to reduce the charge to a misdemeanor and
recommend a 90-day sentence. Frye's attorney did not inform Frye of the offers, and
they expired without Frye having had an opportunity to consider them. That is
remarkably similar to the case herein, in which the State twice made ten-year offers,
neither of which were investigated nor discussed with Applicant prior to their
expiration.

The Frye Court continued, saying that:

“ln order to complete a showing of Stricklana’ prejudice, defendants who have
shown a reasonable probability they would have accepted the earlier plea offer
must also show that, if the prosecution had the discretion to cancel it or if the
trial court had the discretion to rehise to accept it, there is a reasonable
probability neither the prosecution nor the trial court would have prevented
the offer from being accepted or implemented lt can be assumed that in
' most jurisdictions prosecutors and judges are familiar with the boundaries of
acceptable plea bargains and sentences. So in most instances it should not be
difficult to make an objective assessment as to whether or not a particular fact
or intervening circumstance would suffice, in the normal course, to cause
prosecutorial withdrawal or judicial nonapproval of a plea bargain. The

12

determination that there is or is not a reasonable probability that the outcome
of the proceeding Would have been different absent counsel’s errors can be
conducted within that framework.” `

Id. at 1410. The instant case involved a veteran prosecutor who well knew
What agreements would have been accepted by the judge she was practicing before.
Moreover, it is unrefuted that she was operating in good faith, and would not have
revoked a plea offer absent the sort of material intervening circumstances that Were
not present herein, The best evidence of the fact that the offer would not be revoked
is that the State left the offer open for a day prior to trial 'Ilie obvious conclusion
from these objective facts is that the State did not, and would not have, withdrawn
the offer, and the trial court would have accepted it.

Without an informed opportunity to consider these plea offers, with the
benefit of reasonable efforts by counsel to investigate the merits of the offers and
advise their client, the Applicant was denied effective assistance of counsel. As a
consequence, he is serving a sentence six (6) times what he would be serving, had
he been advised properly by attorneys who had made the effort to conduct the basic

discovery that the law requires.
Ground Three:

13

Counsel McGinty rendered ineffective assistance in that
she failed to note and argue for the jury the contradictions
between the videotape of the alleged crime and the
complaining witness’ initial report of the incident as
against her testimony at trial, when the videotape revealed
no firearm in the possession of Applicant nor Applicant
ever coming in close proximity to the complaining witness
to have held a “gun” to her head, as initially reported, nor
to have shoved a “gun” in her side as she testified at trial.
A. Introduction
During the trial of this case, a videotape showing the interaction between the
Applicant and the complaining witness was introduced as State’s Exhibit 6. That
videotape showed that the Applicant, at no point, had a firearm in his possession.
Furtherrnore, even though the complaining witness initially reported that the
suspect had held a gun to her head, (See Attached 911 report), and even though
she testified that the suspect held a gun to her side. The State’s own evidence, the
7-11 surveillance video, reveals that Applicant never came within close
proximity to the complaining witness to commit either act, either hold a firearm

to her head, or to hold a firearm to her side, in the course of committing theft

from a person.
B. Argument.

14

Counsel McGinty failed in two regards. First, she failed to note and argue the
7-11 surveillance video evidence, State’s Ex. 6, as evidence supporting a lesser
included offense, of theft from a person, or for simple robbery. The indictment
charged the commission _of the crime with the use of a deadly weapon, and the 7-
11 surveillance evidence was actually exculpatory evidence that Applicant never
possessed a firearm, nor used a fireaim, in the commission of any crime. At a
bare and forgiving minimum, if Counsel was willing to proceed to trial without
discussing the ten year plea offer with Applicant in the 24 hours prior to trial, she
must be held accountable for noting and arguing that the aggravating element of
this crime was not proven by the State’s own evidence.

Second, Counsel McGinty never used this 7-11 videotape to impeach the
complaining witness. Both the initial report to police, that the actor held a gun
to her head, and the trial testimony, that the actor held the gun to her side, are
disputed by the State’s surveillance video evidence. ln fact, the disparities
between the'video and the testimony was mentioned in closing, but Counsel
failed to effectively confront the complaining witness on cross-examination
regarding the inconsistencies in her testimony and the 7-11 surveillance video

evidence.

15

Third, it is clear from Counsel’s closing that she failed to note and argue the
relevance of the 7-1'1 surveillance video evidence. Though Counsel made an oral
motion for directed verdict of acquittal prior to beginning her closing,
(R.Vol.Tr.Vol.V,p.S), it appears Counsel was unaware of the relevance of the
surveillance video evidence, altogether. Counsel did ask the jury to consider the
video tape, but she demonstrated not an inkling of understanding of the relevance
of the evidence. Counsel stated: “...Look at the video. Compare it with her
testimony. That’s impossible. Didn’t happen like that. Couldn’t have. You’re
` looking at it. There wasn’t enough time. (R.Vol.Tr., Vol.V., pp.l4-15). The
relevance of this video tape evidence is NOT to establish a time line for the
commission of the crime, rather, it establishes Applicant never possessed a
firearm, never held a firearm to the Complainant’s head or person, and in the end,
it is THE EVIDENCE supporting Counsel’s claim on her oral motion for directed
verdict of acquittal, supra., that the State had failed to prove beyond a reasonable
doubt . .. and as counsel put it: “. .. they failed ton commit an aggravated robbery
in this matter . . .”. ID., (R.Vol.Tr.Vol.V., p. 5).

There is far more than a reasonable probability that, had trial counsel noted
the real relevance of the surveillance video exculpatory evidence, and if Counsel

had argued the real relevance of this evidence to the jury, or even confronted the

16

Complainant with the contradictions between her initial report and her testimony
at trial with that evidence, the outcome of the jury’s verdict would have differed,
and Applicant would not have been convicted of aggravated robbery. The jury
would have been confronted with the reality that the evidence, taken as a whole,
was that Applicant, if he committed any crime at all, did NOT commit an
aggravated robbery because the evidence showed he never possessed a firearm,
at all.

The 7-11 surveillance video evidence, likewise, was not challenged as being
the best evidence of what occurred that day. In fact, the State introduced other
surveillance video evidence from the E-Z Mart, where Applicant was arrested,
because it was that evidence that connected Applicant to the Complainant’s
purse, found in a garbage can, after the dark hooded sweater Wearing suspect was
seen on video putting something in a trash can, where the Complainant’s purse
was found by officers. That Was competent evidence, not because Applicant says
so, but becauseit was offered into evidence by the State and admitted without
objection. Likewise, the 7-11 surveillance video evidence held the same
relevance.

Counsel has a constitutional obligation to prepare, and it is presumed by the

Supreme Court that counsel does prepare for trial, but that presumption is a

17

rebuttable one. ID. Srrickland, supra. at 466 US at 687-91; SEE ALSO:
KIMZ\ELA/MN v`MORRISON, 477 US 365, 375 (1986). Merely being aware of
the existence of the 7-11 surveillance video evidence did not constitute
preparation. Preparation included understanding the relevance of the evidence,
Which Counsel failed to do. lt would be one thing if the video evidence was
meaningless, but it was not. lt was relevant to the State’s case, and in the end, it_
was relevant to the very argument Counsel offered on her oral motion for directed
verdict that the State had failed to prove every element of an aggravated robbery
beyond a reasonable doubt. There can hardly be a more definitive example of a
lawyer’s failings resulting in ineffective assistance, to the prejudice of the
defendant. Counsel not only failed to resolve this case with a plea bargained
sentence fifty years less than the sentence ultimately imposed, but when Counsel
proceeded to trial she did so without an inkling'of the relevance of exculpatory
evidence made available to her, not through her own investigation, but from the
office of the prosecutors. The State met its obligation to produce exculpatory
evidence. The failing was upon Counsel7 and Counsel alone, When she failed in
her obligation to note and argue the relevance of that very evidence. That Counsel
rendered ineffective assistance under these facts and circumstances is clear,
unequivocal.

18

Ground Four.
Counsel rendered ineffective assistance by failing
to note and argue that the aggravated robbery the State
ultimately charged was unsupported by a the police

investigation, and Counsel failed to interview and
subpoena witnesses in support of such defense.

A. lntroduction.

Again, Counsel McGinty failed in two respects. The first indicates Counsel’s
failure to properly investigate and apply the results of that investigation to the task
of providing an effective defense. The second indicates Counsel’s failure to properly
prepare for trial by compelling the attendance of relevant witriesses, albeit those
witnesses were police detectives and clearly adverse to Applicant’s defense.

ln the first instance each and every initial report of this incident treated this
investigation as a “robbery”, not an “aggravated robbery”, and the reason for such is
clear. The crime, whatever it Was, was not an “aggravated” robbery with the suspect
committing “robbery” through use of a deadly weapon, to wit: a “firearm”. lt is not
like this crime was committed in a vacuum. lt was committed on camera in the full
view of investigating detectives. Robbery detectives A. Frizzell (Badge #Pl78) and

Hinson Were assigned Both detectives viewed the 7-11 surveillance video, and both
19

detectives were aware that there was no “firearm” used in the commission of the
crime. ln all reports authored by Detective Frizzell there was never a mention, not
even once, of the use of a firearm in the commission of the crime. During all of this
reporting it was “robbery” that was reported, not “aggravated robbery”, and the
reason is clear why. There was no firearm. Frizzell and Hinson viewed the video in
which it is shown that the actor approached the Complainant, and the Complainant
ran away immediately. Complainant was not subjected to a gun being placed at her
head, as she had reported, and she was not subjected to a gun being held to her side,
as she testified. Two witnesses were aware of these facts, and their names were
known through their reports, and Counsel failed to subpoena them for trial.

And in the second instance Detective Frizzell is the person responsible for
filing what he referred to as “additional charges” against Applicant, and it was these
“additional charges” that resulted in the “aggravated” robbery being added.
Detective Frizzell interviewed Applicant after his arrest while he was in the custody
of the Tarrant County Jail. lt was after that interview, Wherein Applicant refused to
confess to the robbery, that Detective Frizzell decided to “add” the charge of
aggravated robbery. Detective Frizzell reported: “I met with Barrett in the jail to
discuss the case. (Barrett gave his version of what occurred which did not have him

confessing any involvement in the robbery. . .) ...It became obvious to me that the

20

defendant was going to stick With that story so l stopped the interview. I added a
charge of Aggravated Robbery to Devon Barrett because of the fact that the
driver of the vehicle who was wearing the same clothes as Barrett is the subject
seen on video committing the offense.” (Attached Report of Det. Fiizzell).

But there was more exculpatory evidence from police officers not the subject
of defense subpoena for the trial. Applicant was never identified by Complainant.
She had reported that the person who robbed her was right next to her, holding a gun
to her head or her side, whichever, but Complainant could not pick Applicant out of
a lineup. Detective Scesney showed the Complainant a photo lineup with
Applicant’s photo included in the array, but Complainant was unable to identify

Applicant as the robber. Counsel did not subpoena Detective Scesney for trial, either.

B. Argument.

lt is axiomatic that counsel is presumed to have prepared for trial, and
likewise, that this presumption is rebuttable. One instance of actionable ineffective
assistance was reviewed by the Supreme Court two years after the leading case on
the issue was decided, Strz`ckland v Washington, in 1984. ln 1986 the Court reviewed
Kimmelman v Morrz'son, supra. l\/lr. Kimmelman had`been convicted, in a trial, of
rape, and at trial he testified that the rape victim had never been in his apartment,

much less raped in his apartment. What his counsel had failed to do, however, was
21

to file a discovery motion for objects seized by the police at the time of the arrest.
Police had seized a bed sheet from Kimmelman’s bed, and it was the victim’s blood
stains on that bed sheet that caused the jury to convict. The Court determined that it
was ineffective assistance for Kimmelman’s cotmsel not to discover the blood
stained bed sheet, as that sheet had been illegally seized with a warrantless search of
Kimmelman’s apartment Applicant’s Counsel’s failings were analogous.

Counsel failed to review the detective’s reports, failed to learn that it was
“robbery”, not “aggravated robbery” that was charged initially, and`that charge was
predicated upon the detectives’ review of the 7-11 surveillance video revealing no
“firearm” possessed by Applicant. Counsel failed to subpoena the officer who
conducted the photo array in which Complainant was unable to identify Applicant,
a failing that is consistent with her running from her attacker long before he was in
close enough proximity to put a gun either her head, as she reported initially, or to
her side, as she reported later and testified to at trial.

Counsel is just not free to fail to successfully marshal all exculpatory evidence
in support of her theory of defense at trial. lt is clear, from Counsel’s closing and
the motion for directed verdict filed orally prior to her closing, that the trial defense
was that Complainant could not be believed, that there was no firearm to support a

conviction for “aggravated” robbery. Certainly, the testimony of Detectives Frizzell

22

and Hinson would have supported that defense theory, and the testimony of
Detective Scesney would have supported the theory that Complainant was never in
close proximity of the actor at the time of the incident. lt simply cannot be concluded
that Counsel’s failings were not ultimately prejudicial to Applicant’s defense, nor
that the outcome would not have differed had Counsel not failed in this manner.
Reasonably professional attorneys rendering reasonably effective assistance are not
permitted under the law to fail so completely in preparation of a case scheduled for
jury trial, especially when that jury trial is only occurring because the same Counsel
failed to discuss the terms of a plea bargain agreement that the defendant would most

certainly have accepted.

CONCLUSION AND PRAYER
lt is clear that Applicant did not receive the effective assistance of counsel.
Two plea offers were allowed to expire prior to the Applicant having a chance to
consider and accept them. Evidence that would have shown Applicant was guilty
only of a less serious offense was not investigated or used by his trial counsel. The
Applicant, after these events, received the maximum sentence Texas law allows for

his offense. At critical points in this trial, Counsel failed Applicant, and were

23

ineffective, as a matter of law, under the Sixth and Fourteenth Amendments to the
United States Constitution.

At trial, critical exculpatory evidence supporting the defense theory was
neither made available for presentation, but more importantly, was not presented to
the very jury Counsel was seeking to accept the reality that no aggravated robbery
was committed This type of unpreparedness is sufficient to overcome the legal
presumption that counsel prepared for trial as required by law.

WHEREFORE, Applicant prays that this Texas Court of Criminal Appeals
issues a writ of habeas corpus, to the end that the State of Texas is ORDERED to
respond to the instant application for habeas relief, to the end that habeas corpus
relief is GRANTED in all things, that the judgment is vacated, and that Applicant is
REMANDED to the District Court for further proceedings wherein Applicant is
permitted to accept the ten year plea agreement and be sentenced accordingly.
Applicant prays for any and all such other relief to which he may show himself

entitled, including general relief`.

Respectfully submitted,

tig%;@r

Clay S. Conrad u%Wi/W%'m

24

State Bar of Texas # 00795301
11767 Katy Freeway, Ste. 740
Houston, TX 77079
Tel: (281) 597-8818
Fax: (281) 597-8284
COUNSEL FOR APPLICANT

25

CERTIFICATE OF SERVICE

l hereby certify that a true and correct copy of the above Applicatz`on for
Postconvz`ctz`on Writ of Habeas Corpus Pursuant to Arti`cle 11.072 of the Texas Code
of Criminal Procedure was hereby mailed to the office of the Travis County

Attorney, 300 County Administration Building, 314 W. 11th Street, P.O. Box 1748,
Austin, TX 78767-1748.

Dated September&, 2015- d g@[a,Q

Clay S. Conrad

26

COUNTY OF HARRIS *
STATE OF TEXAS *
AFFIDAVIT OF DAVON PAUL BARRETT

BEFORE ME, the Undersigned Notary Public, appeared a person identified to me as Davon
Paul Barrett, who reported as follows:

“My name is Davon Paul Barrett. l am currently incarcerated at the H.H. Coffield Unit,
2661 FM 2054, Tennessee Colony, TX 75884. l am over 21 years of age and competent to write
this affidavit The facts herein related are true and correct and of my own personal knowledge

“l was arrested on or about January 13, 2012. On the second setting, a ten year plea bargain
offer Was made on my case. My lawyer told me about it in court, but never discussed with me of

the desirability of the plea offer. ln fact, [he never discussed it with me at all, just let me know it'_`

was there. l was indicted on February 17, 2012, and due to the indictment l was told the offer was
no longer available, lf my attorney had taken time to discuss this plea offer or the risks of going
to trial with me during the two weeks during which this offer was available, l would have accepted
that offer. By letting this offer expire before discussing it with me, l believe my lawyer cost me
the opportunity to accept it.

“Another ten year offer was made on or about July 30, 2012, but it was not discussed with
me at that time, lf my attorney had taken time to discuss this plea offer or the risks of going to trial
With me on that date, l would have accepted that offer. By letting this offer expire before discussing
it with me, l believe my lawyer cost me the opportunity to_accept it.

“l went to trial without my lawyer ever sitting down and discussing any plea offers with
me except in the most general terms. She was not available to answer my questions. She never
spoke to me outside of court, and spent very little time with me discussing the case in court. l do
not believe that my trial lawyers represented me properly.

“Because l never had a discussion with my lawyer about the terms or desirability of any
pleas offers the State made, l ended up going to and was sentenced to sixty years in prison. l
understand that l was found guilty, but l believe that when plea offers were made, l should have
been given the information to intelligently consider them.

“Further l sayeth not.”

    

D’avn Paul Barrett ' d

 

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gang Gaye L Karr ,
!!o\=l¢¢x " 07120/2015 l'lotary P@olic in and for the State of Texas

SWORN AND SUBSCRIBED TO BEFORE l\/lE On .luly 13, 2015.
lowry Fublie, aba d Tml
cousinoneilec‘¢¢¢¢¢¢o¢¢.¢`¢

nino-0¢¢'\qocloccocel,\¢b¢
lyc¢mmluhn Expu-u- l éa(/{U<;< . mm
Notary Without Bond

 

28

LlST OF APPLICANT’S EXHIBITS

Consultation Setting Plea Offer Acknowledgement evidencing a plea offer
of ten years confinement in TDCJ as of February 3, 2012.

lndictment indicating the 10 year plea offer was open for two weeks.

Status Conference report from when Counsel McGinty represented the
Applicant indicating that as of July 30, 2012 there was, again, a ten yr.
Offer from the State, open for one day, signed by Counsel and not by
Applicant, indicating Applicant never agreed to refuse the offer. (lt is noted
that the Status Conference was conducted in the courtroom, and

Applicant was available to participate as he was still in custody.)

911 Call Report from January 10, 2012 at 1:31 PM, report # G0366/GP
1200000922+, from the 7-11 store at 2105 N. Hwy 360 SB in Grand
Prairie, Texas, in which Complainant first reported that the suspect did
Place a gun to her head

lncident Reports filed by Detectives Frizzell and Hinson Wherein it is
reported that they both viewed the surveillance video from the 7-11 and no
firearm was possessed by the actor, and rather, the suspect approached the
Complainant without a firearm and the Complainant ran immediately and
before the suspect(s) came into close proximity with Complainant. ..

Additionally these reports indicate it was a “robbery” and not an “aggravated
robbery” being investigated as there Was no firearm seen on the 7-11
surveillance video... and also reported is Det. Frizzell’s “adding charges” to
Applicant, not because of the existence of a firearm in the commission of the
offense, but because Applicant “stuck to his story” and did not confess
committing the robbery being investigated by Det. Frizzell; and finally, also
reported is the report of the photo array that resulted in no identification of
Applicant, consistent with the video evidence that the suspect never was
within close proximity of Complainant so she was unlikely to be unable to

29

identify the perpetrator because he Was never close enough to see as is also
corroborated by the 7-11 surveillance video evidence

CASE NO. 12668581) CoUN'r ONE
lNClDENT NO./TRN: 906849'7154

THE STATE oF TEXAS § IN THE 396TH DisTchT COURT
v. §
DAVON PAUL BARRETT § TARRANT COUNTY, TEXAS
§
§

STATE ID No.: TX07313570

 

JUDGMENT 0141 CONVICTION BY JURY
Judge Presiding: HoN. GEoRGE GALLAGHER Date‘ludgment ali/2013

 

Entered:
JoE sHANNoN, JR.
Attorney for State: HEATHER DAvENPoRT §;§‘;?j;’n§?r §§§§IASN;§§§UHATD§
vinLLiAM vAssAR `

 

Offense for which Defendant Convicted:
AGGRAVATED ROBBERY WITH A DEADLY WEAPON, TO-W'IT: A FIREARM

 

 

 

 

 

 

 

 

 

Charg;in' g lnstrument: Statute for Offense:

lndictment 29.03 PC

Date of Offense: _

1/10/2012

Degree of Offense: Plea to Off`ense:

lST DEGREE FELONY . NOT GUILTY

Verdlcc Of Jul Findings on Deadly Weapori:

Guilty ' Yes, a firearm

Plea to 1lab Enhancement Paragraph: j Plea to Z”d Enhancement/Habitual Paragraph:
N/A N/A

Findings on 1SL Enhancement Paragraph: Findings on 2nd Enhancement/Habitual Paragraph:
N/A N/A

Punishrnent Assessed b : Date Sentence lmposed: Date Sentence to Commence:
Court 5/1/2013 5/1/2013

P ' 11 t d Pl . . . . . '

Of“§j;f§:;§; ace 60 YEARs institutional Division, TDCJ

 

THIS sENTENcE sHALL aUN N/A.
l:l sENTENcE or coNFmEMENT sUsPENDED, DEFENDANT PLACED oN coMMUNrTY sUPEersIoN FoR N/A.

 

E_iL°-; Court Costs: Restitution: Restitution Payable to:
N/A $294.00 N/A l:l VICTIM (see below) l:[ AGENCY/AGENT`(see below)

 

Case No. 1266858D » _ Page _!_of` j

 

§ Attachment A, Order to Withd_raw Funds, is incorporated into this judgment and made a part thereof.

 

Sex Offender Registration Requirernents do not apply to the Defendant. TEX. CODE CRIM. PROC. chapter 62.
The age of the victim at the time of the offense was N/A . `
lf Def`endaut is to serve sentence in TD CJ, en§er incarceration periods in chronological order.

Time From: 1110/2012 To: 5/1/2013

Credlted: lf Def`endant is tp serve sentence in county jail or is given credit toward fine and costsx enter days credited below.
N/A Days Notes: N/A

All pertinent information, names and assessments indicated above are incorporated into the language of the judgment below by reference.

This cause was called for trial in TARRANT County, Texas. The State appeared by her District Attorney.

Counsel /Waiver of Counsel §select one) _

g Defendant appeared in person with Counsel. -
l:l Defendant knowingly, intelligently, and voluntarily waived the right to representation by counsel in writing in open court

lt appeared to the Court that Defendant Was mentally competent and had pleaded as shown above to the charging
instrument Both parties announced ready for trial. A jury was selected impaneled, and sworn. The lndictment was read to the
jury, and Defendant entered a plea to the charged offense The Court received the plea and entered it of record (

` The jury heard the evidence submitted and argument of counsel The Court charged the jury as to its duty to determine the
guilt or innocence of Defendant, and the jury retired to consider the evidence, Upon returning to open court, the jury delivered its
verdict in the presence of Def'endant and defense counsel, if any.-

The Court received the verdict and ORDERED it entered upon the minutes of the Court.

Punishment Assessed by Jury / Court / No election gselect one!

I:l Jury. Def`enda.nt entered a plea and iled a written election to have the jury assess punishment The jury heard evidence relative to
the question of punishment The Court charged the jury audit retired to consider the question of punishment After due deliberation,
the jury was brought into Court, and, in open court, it returned its verdict as indicated above.

§ Court, Def'endant elected to have the Court assess punishment After hearing evidence relative to the question of punishment, the
Court assessed Def`endant’s punishment as indicated above.

l:l No Election. Defendant did not tile a written election as to whether the judge or jury should assess punishment Af`ter hearing
evidence relative to the question of punishment, the Court assessed Def`endant’s punishment as indicated above.

The Court FlNDS Def`endant committed the above offense and ORDERS, ADJUDGES AND DECREES that Defendant is
GUILTY of the above offense. The Court FINDS the Presentence lnvestigation, if so ordered was done according to the applicable
provisions of TEX. CODE CRIM. PROC. art. 42.12 § 9.

The Court ORDERS Defendant punished as indicated above. The Court ORDERS Def'endant to pay all fines, court costs, and
restitution as indicated above.

Punishment Options §select one§ -

§ Confinement in State Jail or Institutional Division. The Court ORDERS the authorized agent of the State of Texas or the
Sheriff of this County to take, safely convey, and deliver Def`endant to the Director, Institutional Division, TDCJ. The Court
ORDERS Defendant to be confined for the period and in the manner indicated above. The Court ORDERS Defendant remanded to the
custody of the Sherif:f of' this county until the Sheriff' can cbey the directions of this sentence The Court ORDERS that upon release
from confinement7 Defendant proceed immediately to the Tarrant County District Clerk. Once there, the Court ORDERS
Def`endant to pay, or make arrangements to pay, any remaining unpaid fines, court costs, and restitution as ordered by the.Court
above.
[:l County Jail Confinernent/ Conf`inement in Lieu of Payment. The Court ORDERS Def`endant immediately committed to the
. custody of the Sheriff of County, Texas on the date the sentence is to commence Defenda.nt shall be confined in the County Jail for
the period indicated above. The Court ORDERS that upon release from confinement Defendant shall proceed immediately to the .
Once there, the Court ORDERS Defendant to pay, or make arrangements to pay, any remaining unpaid fines, court costs, and
restitution as ordered by the Court above.
I:] Fine Only Payrnent. The punishment assessed against Defendant is for a FINE ONLY. The Court ORDERS Def`endant to proceed
immediately to the Ofdce of the County . Once there, the Court ORDERS Defendant to pay or make arrangements to pay all fines and
court costs as ordered by the Court in this `cause. - ‘

Execution / Susnension of Sentence (select one)

The Court ORDERS Def'endant’s sentence EXECUTED. .

m The Court ORDERS Defendant’s sentence of confinement SUSPENDED. The Court ORDERS Def`endant placed on community
supervision for the adjudged period (above) So long as Def`endant abides by and does not violate the terms and conditions of
community supervision The order setting forth the terms and conditions of community supervision is incorporated into this
judgment by reference

The Court ORDERS that Def'endant is given credit noted above on this sentence for the time spent incarcerated

Case No. 1266858D Page Lof' j

. r-\ /-

Furthermore. the following special findings or orders apply:

 

AFFIRMATIVE FINDING; A FIREARM

NOTICE OF APPEAL FILED: 5/1/13

 

Signed and entered on 517/2013

 

 

JUDGE PRESIDING

Case No. 1266858D

;…fioo

 

 

. '_ . W{;~IQ
cAosr»;.NUMBER lBQQXSS' ` '*

 

 

- THE stare or TEXAS ~ . ' '~ 396'"1 msriucr coURT
VS _ d ' ~ , ' _ v OF
QHMMLEMMH-_ d _ - _' j TARRANT coUNrY, TEXAS
coNs ULTA TION siean PLEA oFFER ACIQvoWLED GEMENT

 

 

 

On`the date shown below, the

_ parties appeared in Court on this cause. "I'he
for the Defendant both und

prosecutor and the Attorney
erstarid and acknowledge the following

The Defendant is chargedwith the felony oHense of: Aé Q Wo@€f?_l/ '~ DW
g ,

 

Levcl'of offensc: l Felony_ofth`e

 

l `Degreej or State Jail_Felony,

or Class ` Misdexneanor

If conv"i ctcd,'the Defcndant faces the followi

z Lifc, or

ng range of punishment: '

any term of not more than 9 7 . years or less than .2 years
~ In the'lns!itutional Division`of the Texas Department of Criminal

Jusi;ice, and in addition, a fine motto exceed $ £Q¢ Q§Q - .may also
Bc assessed .' ' x ' - ’ ~ ' _ '
` ' _ A term of not less than

Faciiity, and in ndditio
Assessed.

180 days or more than 2 years in the State Jail
n, a fmc not to exceed '$10,000 may also be

THE PLEA_ BARGAIN R.ECOMMENDATION IS:_M /Z€

 

 

 

 

 

 

L ' . ACIUQWLEDGEMENT or PLEA BARGAIN oFFnR j

___

 

 

 

 

 

The above-Plea barg:a"m offer is extendedun‘n'] :Z;W//Z'é%l’/'/

 

(date) If'the offer is not
accepted and case pled by noted date,_~the-offer i-s withdrawn ' 1 ' `
B.).Fsig`*'dé`lg bel°`v\’, jail Par'ties acknowledge that the above plea odor has been conveyed to the Defendant
on this' ate. '

gay

'Assistant Criminal District Attorney
State Bar Number "

 

 

 

J udgc Presiding

 

 

NA_ME o/-\\/oN PAUL BARRETT ‘ oFFENsE RoBBERY (Aee)
ADDRESS 1408 KxLKENNY oR DATE 1/10/2012
ARLlNGToN T)< 76002 LP. nowch MARQUEZ
RACE B sex xvi AGE 23 DoB 5/7/1983 .
* cA_sE No. 1266853 DATE FILED 1/13/2012 AGENCY Grand Prairié PD
» cto No. 0691166 oFFENsE No. 120000922
COURT 396th District Court

 

tNDICTMENT No. 1266858 D

 

%

IN THE NAME AND BY AUTHORITY OF THE STATE OF TEXAS-z
THE GRAND JURORS OF TARRANT COUNTY, TEXAS,

duly elected, tried, empaneled, sworn, and charged to inquire of offenses committed in Tarrant County, in the
State of Texas, upon their oaths do present in and to the v
371St DlSTRlCT COURT

of,said County that DAVON PAUL BARRETT, hereinafter called Defendant, in the County of Tarrant and State
aforesaid on or about the lOth day of January 2012, did

THEN AND THERE INTENTIONALLY OR KNO WINGLY, WHILE IN THE COURSE OF COl\/IMITTING
THEFT OF PROPERTY AND WITH INTENT_ TO OBTAIN OR MA[NTAB\I CONTROL OF SAID
PROPERTY, THREATEN OR PLACE MONICA MARQUEZ IN FEAR OF IMMINENT BODILY INIURY OR

‘ DEATH, AND THE DEFENDANT USED OR EX.HIBITED A DEADLY WEAPON, TO-W"IT: A FIREARM,

 

Filed (Clerk's use only)

FlLED
THOMAS A WILDER, DlST. CLEFJ
TARRANT COUNTY, TEXAS

/\

FEB`:L? 2012 .

AGAINST THE PEACE AND DIGNTTY OF THE STATE.

 

 

 

   

 

 

U Criminal District Attome? Foreman of the Grand Jury
Tarrant County, Tean

INDICTMENT - ORIGINAL

a 49 s
sTATF. or TEXAS rN THE 396“‘ JUDICIAL '?'?4,?,;17€;§5`5

  

 

 

§ g y
§ , 4 054§ O/
vs. § DISTRICT COURT @; 433 3-¢?~2 h"rgg§§§%
§ y O_.; _
0/1~/“/ U/W\/.&/` § TARRANT CouNTY, TEXAS 2
_ ),'\;
STATUS CONFERENCE

 

On the date shown below, the parties appeared in court on this cause. The Prose_cutor and the Attorney for the Defendant
both understand and acknowledge the following

Currexit'l`racl< Designation: 4 o Expedited ci Basic o Complex

 

The Defendant is charged with the felony offense of:

 

 

And the State is also proceeding on the:

'3 . Enhancemcnt No,tice

:`eonyi< the Defendant faces the following range of punishment
. Life, or o any term of not more than . § g years or less than \//yea; in the lnstitutional

Division of diffan Departmen of Criminal Justice, and in addition, a fine not to exceed

$ [ 6 may also be assessed v `

m a term of not less than 180 days or more than 2 years in the State']ail Facility, and in addition, a
fine not to exceed Sl0,000 may be assessed

ci The State is proceeding under Section 12.44(a), Texas Penal Code, and the Defendant may be punished by
confinement in the county jail for a term not to exceed l year, or under Section 12.44(b), Texas Pcnal Code, and the
Defendant may be punished by confinement in the countyjail for a term not to exceed l year, b_y a fine not to exceed
$4,000.00, or both such confinement and fine.

' o Other:

 

 

The final plea bargain recommendation is'. / 0 //ML Z>O C/»/
_ - / - '

 

 

 

DEFENDANT’S REJECTION OF FINAL PLEA BARGAIN OFFER

 

 

 

'l`h_is plea bargain offer is available until the Status Conference is concluded l understand that no settlement offers will be
` made after this date The only disposition after this Conference will be by plea of guilty as charged or trial.

 

 

PROSECUTOR’S vCER'I`II*`ICA..TION OF TRIAL READINESS

 

 

v The merits of the case have been thoroughly reviewed Pretrial settlement negotiations have been
unsuccessful and the case is ready for trial.

 

STIPULATIONS

 

 

 

n The parties hereto agree to the following stipulations`:

 

17

 

 

W ' 17
'l`RIAL LENG'I`H AND DATE

The prosecutor and Defense Counsel represent that all pretrial motions and discovery have been completed and that all
required witnesses are available for trial. '

 

 

 

 

TRIAL CHECKLIST

TypeofTrial: D JuryTrial m TBC

Election ofPunishment: 5 Juiy n Court

Probation Eligible‘? ' n No l - tJ Yes

Prior Convictions Alleged? n RepeatOft`ender ct HabitualOft`ender
. VoirDire Questionnaire: ct Standard ' m Special
~ Number of Jurors Needed al Standard cl Special
»lnterpreterNeeded? r;i No n Yes

Special Needs? 4 z Cl No n Ct Yes

HEARINGS CARRIED WI'I`H TRIAL

0 ldentification ci Motion to Suppress m Confessions
n Motions in L.irnine ci Reputation ' 1:1 Evidence Adrnissibility
NUMBER OF WI'I`NESSES
Guilt/lnnocence: ' DA Defense
Punishment: DA _ Defense

Estirnated length of trial (in days)

 

TRIAL sETTiNG

 

 

 

The Juzy will be summoned on'.

 

Jury Questionnaires will be available on:

 

Trial Will commence on; at: a.m§/p.m.

 

 

 

 

ACCEPTANCE OF NOTICE AND HRl`VI TRIAL DATE

 

 

By our signatures below, counsel for all parties accept notice of the trial date and waive all matters preliminary to trial
except as ente - ~ on the record at the Status Conference. Defense Counsel and the ‘ . tant District Attorney confnm

   
 
 
 

  
     
 

    

o ey fendant 0

State Bar No. l § LD;§Z§D

 
 

Attorney '

UMQ

    

State Bar ' .

 

Defendant

'APPROVED:

 

Dafe George Gallagher, Presiding Judge
396‘“ Judicial ntsch court Tarrant county, rean

18

INCIDENT HISTORY.' DETAIL: LAW/GlZOlOOS€G

Initiate: 13:31:50 01/10/12
G0366/GP1200000922+

Entry: 13:34:01

OK

Dispatch: 13:35:34

Onscene: 13:39:25

Close:

Location: 2105 N HWY 360 SB

Call/Case Nbr:

Current Status: ONSCENE
Primary Unit: §§§
Jurisdiction: GP

Disposition:

,GP (SEVEN ELEVEN AT NE

GREEN OAKS)
Loc Comments:
DAREA:

Nl
Beat/Stn: 21

Current:
Map Page: 70

Type: ROB Final:

 

RD: 1205T Page: K Priority: EP ROBBERY
Page: HAZARD

PRIORS EDetail

13:34:01 ENTRY TEXT:BM PULLED A GUN GN HER,LS
YELLOWISH COLORED CAR '

13:34:01 E911 LOCATION:423CG NEXTEL WIRELESS,XX
\PHONE:214/416~6799 \COMP:MAPSCO
FW 7OH / TX0423C-3 \SRC:WPHZ
\LAT:32.7859389 LON:-97.0599389
\CONF: O% \UNCERT: 3FT
\PNUM:817/211-3849

13:34:01 PRIOR GP CHECK 01/05/12 @ 07:05:22 (40
MDRE)

13:34:33 SUPP TEXT:POSS HEADING SB ON 360,SUSP
SAXING THEY WENT TOWARDS ARKANSAS

13:35:06 UPDATE COMP:MAPSCO FW 7OH / TXO423C-3-~
>MDNICA

13:35:06 SUPP TEXT:SUSP 2 BMS STOLE PURSE,

_ \NAME:MCNICA
13:35:16 SUPP TEXT:FEMALE REFUSED EMS,CALLER HU

r~\ umtm-e1____a_\.r-\n_._.:.."rc1 1 r r\rr:\r'*.-..-l\'l\,f nnnnnn \\/fn=-¢~nn-o`l`\¥onlmrn'l 111-m

CALLING BACK

1/10/’).012

haw incident #201003 66

13:35:34
v13:35:34
13:35:34
13:36:07

13:36:29
13:36:29
13:36:33

13:36:41
13:36:41
13:36:50
13:36:50
13:36:50
13:37:03
13:37:03
13:37:18
13:37:32
13:37:55
13:38:15

13:38:35

13:38:46
13:38:46
13:39:25
13:39:31
13:40:29

13:41:40
13:42:15

13:43:01

ile://C:\Tiburon\GPraiNS l l LIVE\Cad\l\/iessage\l\/IessageDisplay03 .h1m

Page 2 of 9

DISP-ENR é§§ lg§

ID
ID
SUPP

BACK-ER
ID
SUPP

BACK"ER
ID
PREEMPT
REPLACE
ID
BACK-ER
ID

MISC
INSRVICE
MISC
SUPP

MISC

BacK-ER
ID
0NSCENE
sUPP
MISC

ONSCENE
MISC

MISC

453 (P224)NEW,GREGORY F.

124 (PlgO)BROWN,LESLIE J.
TEXT:COMPL IN A`WHI TOYO SCION,
CALLER ONLY SAW ONE HANDGUN,
.l_-?_§l§§

160 (P225)ANGUIANO,RAXMDND JR
TEXT:SUSP PULLED GUN TO HER HEAD

AND ASKED FOR THE MDNEY,SUSP GOT
INTO HER VEH

127 .
(PlBB)LEPAK,DENNIS J.
126

126 (PlOl)GARCIA,OSCAR

124

g§§, ROY oRR/wN cARRIER
TEXT:cALLER DIDNT GET ANYTHING
FURTHER oN sUsP vEH,No LP,No
DECALS on sTIcKERs,***sUsP vEH
LIGHT coLoRED YELLow PT cRUsIER***
.366 4, cALLING ARLINGTQN PD As
wELL

121 131

121 (Poav)szEMPRUcH,MITcH

§§§

TEXT:***$PANISH sPEAKING FEMALE***
5366 4, REQ c14o To BoLo sUsP INFo
To soUTH UNITS

;;;

g§§, HAVING To UsE TRANSLATQR, To
GET'DESC

g§§, coRREcTION --BEIGE PT cRUIsER

1110/2012

CASE REPORT

GRAND PRA|R|E POL|CE DEPARTMENT
GRAND PRAlRlE, TEXAS

cAsE sUr\/IMARY= _

The complainant in this offense is Monica Marquez. The defendant in this offense is Davon Barrett.

On January lO, 2012 at 1:34 pm, Ofticcr G. Ncw #224 and Ofl'icer O. Garcia #lOl, responded to a robbery that had
just occurred at the 7-ll Store, 2105 N. Hwy 360 #A, in which two black males stole a purse at gunpoint. With the
aide of a translator, the Spanish-speaking caller described the suspect‘s vehicle as gray, yellow or beige in color. On
arrival, Oflicer New met with Monica Marquez sitting in her white 2006 Toyota Scion alongside pump #2. Using a
translator, Oflicer New learned that one of the suspects was armed with a silver semi~automatic pistol. Ai’ter viewing
the security video, Acting Scrgeant R. Anguiano radioed the suspect's vehicle was a gray PT Cruiser type vehicle
with the driver as a black male wearing a tan / light color sweatshirt and the passenger wearing a black hooded
jacket.

Oflicer Garcia arrived attire store and interviewed Ms. Marquez. She advised that she had stopped at the 7-11 to get
gasoline and pulled at pump number #2. She went inside to pay for gasoline and food items and walked back to her
vehicle to pump the gas. As she was about to get into her car, she felt a blunt object thrust on her left ribcage. She
turned and saw a black male holding a silver semi-automatic pistol against her side. lrnmediately, she darted around
behind her car and rushed to the front of the store where she hid behind another customers car parked nearby.
l..ooking over the customers car, she saw a gray PT Cruiser-type vehicle exiting the parking lot, heading southbound
on S.H. 360. Marquez advised that her black Coach purse was stolen from underneath the driver's seat. The purse
contained her Texas driver's license, Well Fargo debit card, Wal-Mart debit card, $800 pesos and 3350-$400 in US
currency. A description was broadcast of the suspect information

Approximately l l minutes later Police Chief Dye and Assistant Chief'l'rask located a silver Chevrolet HHR with
temporary tag 13M4124 at the Shell station located at 3080 Mayticld getting gas. The subjects matched the physical
description provided by the complainant. The subject wearing black walked out of their view and the subject
wearing the light color clothing started to drive away. Chiet`Dye stopped the vehicle in the 2800 block of S. Hwy
360 and found that the driver, Davon Barrett, was operating the vehicle with a suspended license and Barrett was
subsequently arrested. Barrett had $258.00 in his possession at the time of his arrest. The subject wearing black was
not located.

Detectives A. Frizzell and T. Hinson responded to the location and reviewed the surveillance video and determined
that the suspect vehicle was actually a silver Chevrolet HHR. The driver ofthe vehicle is seen getting out and
approaching the complainant who turns and runs away. T he driver then reaches inside her car and returns to the
l-ll-lR. The passenger in the l-]]-IR gets out of the vehicle and is walking at the back of the car when the driver gets
the purse and starts back to the vehicle Both subjects get into the car and it leaves south on the 360 service road.

Ofiicer Wallis #165 went to the EZ_ Mart and checked the area where the HHR was getting gas and located the black
purse taken in the offense in a trash can near the gas pump where the vehicle was first observed by Chief Dye-

Ofr'rcers reviewed the video ii'om the Shcll and saw the vehicle pull up to the pumps with Barrett driving, The
subject in black is seen putting the purse in the trash can and walking away. Barrett puts gas in the vehicle and
drives away before being stopped.

Det. Frizzell returned to the station and had the complainant prepare a written statement about the incident in
Spunish. Frizzcll prepared a six picture photo lineup that contained a picture of Barrett. Frizzell gave the
complainant the lineup instruction sheet in Spanish and allowed her to read it. She did so and advised that she did
not have any questions Det. Scesney then showed the complainant the lineup but she was unable to identify Barrett
because she only saw him for a matter of seconds and ran,

Frizzell obtained the complainants purse from the property room and returned it to her. She advised that her Tx DL,
a Wal-Mart card, a Wells Fargo Card,. between $350 and $400 in U.S. currency, and 700 - 800 Mexican pesos were
missing from her purse,

Det. Frizzell then met with Barrett in the jail and read him the Miranda Waming and Barrett agreed to discuss the
case. During the interview, which was recorded, Barrett advised that he had started to FT. Worth to look for a job
but traffic was too bad on NB 360. He said that he turned around and came back and received a call from a subject
he knows as K-Ray or KT. He said that he stopped at the Windspn'nt Apartments at Arkansas and 360 and spoke
with K-Ray l KT who said that he had been out hitting links and needed a ride. l-Ie said that K-Ray f KT had a purse
in his pants. He said that K-Ray was wearing a light sweat shirt like the one he had on. Barrett said that he took him
to the Shell at 360 and Mayiield where K-Ray used a credit card at the pump to buy him gas and then walked away.
He said that he was stopped as he left the location. Frizzell asked him about his vehicle being on video at the time of
the offense and that it was only llrninutes later when he was seen at the EZ Mart. He said that K-Ray drives a
vehicle just like the one that he was driving. lt became obvious to Frizzell that the defendant was going to stick with
that story so he stopped the interview.

On January l l, 2012 Det. Hinson obtained a search warrant for Barrett's HHR. The warrant was executed and CSl
Katy Gildner took photographs of the vehicie. She processed the passenger side of the vehicle for finger prints in an
effort to identify the other subject that walked away from the vehicle. A search of the vehicle was conducted and
several documents were location with different names from the owner and the defendant None of those documents
were related to this case but were seized to see if they belong to other victims. CSI Katy Gildner located partial
prints on the passenger door that were collected.

Det. Frizzell and Det. Hinson went to the 7-11 and obtained a copy of the video of the offense.

On January 12, 2012 Det. Frizzell met with Penny Banks at EZ Mart and obtained a copy of the video ii'om that
location.

Det. Frizzell prepared this case_and filed it with the T.C.D.A. for prosecution while the defendant was in custody.

..~'\

12'-922 §`i“r'i'i`""“°
§rand Prairie Police Department

 

Repmed care
1525 Arka.nsas La_.ne 01/10/2012
Police Department
Naiure otcan
RROB
Oftieer
Grand Pra`.irie , TX 75052 BOVINO , RAFAEL
(9"12} 237-8790

    
 

(972) 23'7- 8744

   

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 
 

    
  

 

v ' Repotted Date Repoer '_lime
Grand Prairie Police Department 01 / 10/ 2012 22 :11
cAo can No _ status mature er can
120100366 ARRE_ST ROBBERY
chation ` city zE»cEde Rep oust
2105. N HWI 360 SB Grand Pra.irie "1’5050 1205T
Area Beat From D_ate Frr)_m Time Ott"ieer
`N`l_ 21_00 01/10/2012 13.:31 casa/BQVINQ,RAFAEL _ _ -
A_ssignmerr: Ent_ened by Ass_lg_nrne¢_'tt RMS Transfef P¢t:p Tmns $w£
SUPPORT - DE_TENTI.ON C358 SUPP`ORT - DETENTION SuccesS-ful Suc¢éssful
Apm>vino Offiver Appmvai ome -
C2_"15 01/10/2012

 

  

`Narrative ' ’ ~ ~ ' ‘ ` ` '
A_dd Additiona| Chargejs) of: A§§ ROBBERY 29. 03 F1, AlP BARRETl', DAVON
DO R.BOV|NO 0358

Narrative: (REQU|RED|

ln the County of: DALLAS

O'n 01110/2012 at about 1815 hours, Det. Frizze|l dropped off the attidavit to add a new charge to AIP Barrett,
Davon. Charge was added nothing turther.

 

 

Report Otftcer Printed At
c358/BOVINO,RAFAEL 11/30/2012 15:09 Page 1 of 1

 

 

 

 

//'.`)<' T Fl
L,_____iH TH 0MAsA Wu_i)`§li)ms'r. cLERK

TARRAN ANT COUNTYTEXAS

 

OC l 1 9 2955
No. C-396-010599-1266858-A T,MF_
' BY DEPU?Y

EX PARTE § lNTHE 396“‘ JUDICIAL

§

§ mscch coURT oF

§
DAVON PAUL BARRETT § TARRANT COUNTY, Tx

STATE’S RESPONSE TO APPLICATION FOR WRIT OF HABEAS
CORPUS

TO THE HONORABLE .TUDGE OF SAID COURT'.
COMES NOW THE STA'I'E OF TEXAS, by and through the Tarrant County
Criminal District Attomey, and in opposition of the Application for Writ of Habeas

Corpus respectfully states the following to the Court based on her information and

belief:

I. HISTORY OF THE CASE

The applicant DAVON PAUL BARRETT (“Applicant”), was convicted by a
jury of the first degree felony offense of aggravated robbery with a deadly weapon,
to-wit: a Hrearm, on May l, 2013. See Judgment, No. 1266858D. The trial court

assessed punishment at sixty years confinement in the Texas Department of Criminal

Justice - Institutional Division. See Judgment.
The Second Coult of Appeals affirmed the trial coult’s judgment on June 5,
2014. See Barrett v. State, No. 02¢13-00200-CR, 2014 WL 2538803 (Tex. App. -

Fort Wort.h Jun. 5, 2014, pet. ret`d) (not designated for publication)

. _ _ '-el' .
' K~/

 

/l

rr. APPLicANT’s ALLEGATIONS

Applicant alleges his confinement is illegal because (l) he received ineffective '
assistance of counsel during the plea process (Ground One) and (2) he received
ineffective assistance of counsel during trial (Grounds Two, Three, and Four). See

Application, p. 6-12.

l]I. NECESSI'I'Y FOR AN EVIDENTIARY HEARING & EXPANSION OF
THE RECORD

There is no need for an expansion of the record. Applicant’s application can

be resolved based on the record before this Court. Applicant need NOT be brought

back to Tarrant County for a hearing.

IV. ARGUMENT AND AUTHORITIES
A. Applicable Law

ln a habeas corpus proceeding, the burden of proof is on the applicant Ex
parte Rain.s, 555 S.W.2d 478, 481 (Tex. Crim. App. 1977). An applicant “rnust
prove by a preponderance of the`evidence that the error contributed to his conviction
or punishmen .” Ex parte Williams, 65 S.W.3d 656, 658 (Tex. Crim. App. 2001). ln
order to prevail, the applicant must present facts that, if true, would entitle him to the
relief requested Ex parte Maldonado, 688 S.W.2d ll4, 116 (Tex. Crim. App. 1985).

Relief may be denied if the applicant states only conclusions, and not specific facts.

- "" 4..

Ex parte McPherson, 32 S.W.3d 860, 861 (Tex. Crim. App. 2000). In addition, an
applieant’s sworn allegations alone are not sufficient to prove his claims Ex parte

Emp@/, 757 s.W.zd 771, 775 ('rex. crim. App. 1988).

B. Applicant’s application for writ of habeas corpus should be DISMISSED
for non-compliance.

Rule 73.1 has very specinc requirements for a compliant application for writ
of habeas corpus. First,

(c) Contents. The applicant or petitioner must provide all information

required by the form. The form must include all grounds for relief and

set forth in summary fashion the facts supporting each ground. Any

ground not raised on the form will not be considered Legal citations

and arguments may be made in a separate memorandum. The form

must be computer-generated, typewritten, or leginy handwritten
Tex. R. App. P. 73.1(0). Here, Applicant has failed to “set forth in summary fashion
the facts supporting each groun ” on the application. See Application, p. 6-12.
Therefore, the application is non-compliant

Applicant’s application for Writ of habeas corpus should be DISMISSED

FOR NON-COlVIPLIANCE.

V. CONCLUSION
Wherefore, premises considered, the State prays that this Court recommend
that Applicant’s application for writ of habeas corpus be DISMISSED FOR NON-
COlV[PLIANCE.
Respectfully submitted,
SHAREN WILSON

Criminal District Attorney
Tarrant County _

 

;tndréa Jacobs, Assistant
Criminal District Attorney
State Bar No. 24037596
401 West Bellcnap

Fort Worth, TX 76196-0201
Phone: 817/884-1687
Facsimile: 817/884~1672

CERTIFICATE OF SERVICE
A true copy of the above has been mailed to Applicant, Mr. Davon Paul
Barrett, by and through his attorney of record, Hon. Clay S. Conrad, at 11767 Katy
Freeway, Ste. 740, Houston, Texas 77079 on the _lol_/n`d;y of October, 2015.

M/_\_
/

Andréa Jacobs

 

CERTIFICATE OF COMPLIANCE
The total number of words in this State’s Response is 941 words as determined

by the word count feature of Microsofc Oflice Word 2010.

/\/*
Andréa Jacobs

NO. C-396-010599-1266858-A

Ex PARTE ' § rN THE 396“‘ JUI)ICIAL
§
§ DrsTRIc'r count or
§
DAvoN PAUL BARRETT § TARRANT coUNrY, rx
oru)ER

The application for writ of habeas corpus of DAVON PAUL BARRETT
(“Applicant”) does not “set forth in summary fashion the facts supporting each
ground.” Therefore, this Court recommends that Applicant’s application be
DISMISSED FOR NON-COMPL!ANCE because Applicant’s application fails to
comply with rean ames of Appellate Procedure Rule 73.1.

The Court further orders and directs:

l. The Clerk of this Court to file these findings and transmit them along
with the Writ Transcript to the Clerk of the Court of Criminal Appeals as required by
law.

2. The Clerk of this Court to furnish a copy of the Court's findings to
Applicant, Mr. Davon Paul Barrett, by and through his attorney of record, Hon. Clay
S. Conrad, at 11767 Katy Freeway, Ste. 740, Houston, Texas 77079, and to the post~
conviction section of the Criminal District Attomey's Office.

SIGNED AND ENTERED this day of , 2015.

 

 

IU`DGE PRESID[NG

eat

l

No_ C-396-010599-126`6858-A

EX PARTE }{ IN THE 396TH JUDICIAL
}{ DISTRICT COURT or
DAVON PAUL BARRETT }{ TARRANT COUNTY, TX.

DAVON PAUL BARRETT'S REPLY TO THE
STATE'S MOTION TO DISMISS
TO: THE HONORABLE JUDGE OF SAlD COURT
DAVON PAUL BARRETT, Applicant, by and through his counsel of record,

enters this his reply to the State's motion to dismiss the instant habeas corpus

application7 and in support of such reply counsel would show:

l. The State has understated Applicant’s allegations in an attempt to
present as de minimus the nature of this habeas action There are no "general"
allegations asserting ineffective assistance of counsel The truth of the allegations is
that this Applicant, proceeded to trial when his counsel failed to advise Applicant of
a ten year confinement plea bargain not once but twice, a plea bargainthat Applicant
would have accepted The reality of this Applicant is that he had been in trouble With
the law on numerous prior occasions7 and each and every time he had been subjected

to the judicial process in his prior cases he had pleaded guilty each and every time

2

without exception The plea bargain was ten years. The sentence after the jury trial
and conviction was SIXTY YEARS. The ineffective assistance allegations are

anything but de minimus.

2. Additionally, the State has chosen a path calculated to misdirect this
Court's attention from the significance of the additional ineffective assistance claims
Trial counsel failed to investigate, and this is not a common or ordinary or run of the
mill claim made by a prisoner. Applicant was convicted of aggravated robbery by
using a firearm The crime was videotaped at the location where the crime occurred,
and the videotape reveals there was no firearm used or exhibited in the commission
of this crime. The sentence for "robbery" is up to twenty (20) years in prison lf
Applicant was guilty of any crime he was guilty of "robbery", not "aggravated
robbery", and he is currently sentenced to a sentence that is FORTY YEARS
GREATER than the sentence he could have been imposed had he been found guilty
of robbery. Trial counsel failed completely to raise this evidentiary matter in the
trial7 and as a result the jury was permitted to find the Applicant guilty of aggravated

robbery.

3. Unfortunately, the State is attempting to minimize the sufficiency of the
habeas claims in this case. This is not a frivolous pleading, and if it was, the State

would have freely demonstrated the frivolous nature of the claims made in response

3
II.

l. In a habeas corpus proceeding, as the State has argued, the burden of
proof is on the Applicant. Ex Parte Ral`nes, 555 S.W.2d 478, 481 (Tex. Cr. App.
1977). Applicant has accepted this burden, and Applicant has met that burden At
present the burden is to present a prima facie case for granting habeas corpus relief,
that is, to present facts and argument that, if true, would be sufficient to warrant the
granting of relief. Applicant has met that burden, and the Court is aware of this from
the record before the Court. The form application memorandum of law in support
and exhibits are before the Court, and though properly served with such papers7 the
State has made no claim that the filing is insufficient to establish a prima facie case

for granting habeas relief.

2. The State has argued that Applicant must show that the error of his
counsel contributed to his conviction or punishment Ex Parte Willlams, 65 S.W.3d
656, 658 (Tex. Cr. App. 2001). Again, the error asserted by Applicant goes directly
to an effect on both the conviction and sentence Counsel failed to note and argue
_ that the Applicant, if guilty at all, was not guilty of aggravated robbery, but robbery,’
and his sentence is 50 years beyond what he could have pleaded guilty for, and 40
years beyond the maximum sentence for robbery. Again, Applicant has met the legal

burden the State asserts must be met.

4

3. The State has argued that Applicant must show facts which if true
would entitle him to relief Ex Parte Maldonado, 688 S.W.2d 114, 116 (Tex. Cr.
App. 1985). This issue has already been addressed What is interesting is that the
State has yet to claim that the Applicant’s claims are insufficient, if true7 to warrant

granting habeas relief

4. The State argues relief can be denied if Applicant states only
conclusions and not specific facts_ Ex Parte McPherson, 32 S.W.3d 8607 861 (Tex.
Crim. App. 2000), but of course, the State fails to claim that Applicant’s allegations
are only conclusory and not specific Applicant’s allegations are supported with
clear and specific detail, reaching valid conclusions vis a vis the law, and this Court

can glean this reality from the pleadings in front of the Court.

5. Finally, the State concludes that an applicant's sworn allegations alone
are insufficient to prove the claims Ex Parz‘e Empey, 757 S.@.Zd 771, 775 (Tex. Cr.
App. 1988). Of course, this too is inapplicable to Applicant’s claims because those
claims are supported by Court documents evidencing the open ten year plea deal,

and a videotape of the crime scene evidencing that no firearm was used or exhibited

The conclusion is empirical What is before the Court is sufficient to warrant the

granting of habeas relief

5
III.

1, The sole grounds for seeking dismissal is premised on the State's claim,
again erroneous, that the form that was used did not comply with the rules. The
original form did make reference to the memorandum in support of the application.
However, this oversight has been corrected, and it was corrected on the very day the
State filed the motion to dismiss. ()n Monday, October 19, 2015 the State moved
dismissal for failure to comply with the rules. On Monday, October 19, 2015,
Applicant’s counsel mailed to this Court a "supplemen " to the form originally filed
in the case, along with the memorandum in support and the exhibits in support. So,
the defect in filing alleged by the State was corrected even before the motion to

dismiss was filed

2. What is missing in the State's reference to Rule 7 3.1 is that the sole
remedy for noncompliance with the rule results in dismissal Dismissal does not
exist in the rule as the remedy for violation of the rule. Additionally, there is nothing
in the rule that prohibits an Applicant from supplying the necessary information in
the form, handwritten typewritten or computer-generated, in a supplement The
point is that before this Court considers the motion to dismiss there will be before

the Court a form with all claims and a review of the essential facts in support of such

6

claims. The cure of deficiency has already occurred, and this Court has before it all

that the law requires to consider the grounds not initially raised in the form itself.

3. All the facts, and all the grounds for relief, were incorporated by
reference in the memorandum. What the State is arguing, essentially, is that there is
no answer to the facts and grounds asserted, but the prisoner who has suffered
ineffective assistance of counsel, and is serving 50 more years than he could have
pled to, and 40 more years than the actual crime for which he should have been
convicted, must languish in prison because a clerk working for his lawyer failed to
hand write what had already been computer generated in a legally sufficient
memorandum supporting the granting of habeas relief lt strains credulity for this

Court to believe that the Constitution should be ignored on such petty argument
IV.

WHEREFORE, Applicant prays this Court denies the State's motion to
dismiss, to the end that the State is ORDERED to answer the application for habeas
corpus relief, to the end that this Court determines whether an evidentiary hearing
must be conducted, or whether these issues can be decided without a hearing
Applicant prays for any and all such other relief to which he may show himself

entitled, including general relief.

 

Respectf , ll submitted,

  

Clay Conr d

LOGNEY & CONRAD

11767 Katy Freeway, Suite 740
Houston, Texas 77079
281-597-8818

COUNSEL FOR APPLICANT

CERTIFICATE OF SERVICE

l, Clay Conrad, certify that a true and correct copy of this document was duly
served upon Andrea Jacobs, Assistant District Attorney, 401 West Belknap, Fort
Worth, Texas 76196-0201, via regular mail, on October 23, 2015.

/@M QMQ

Clay Conrad, Wéounsel for Applicant

CS

icy<’@j

NO. C-396-010599-1266858-A

Ex PARTE § IN THE DisTRICT COURT
§
§
§ 396TH JUDICIAL DIsrRICT
§
DAvoN PAUL BARRETT § oF TARRANT CoUNTY, TEXAS

MOTION FOR LEAVE TO
FILE Al\/IENDED PLEAD]NGS

TO THE HONORABLE JUDGE OF SAID COURT:

NOW COMES Defendant DAVON PAUL BARRETT, Applicant, filing this Motion for

Leave to file amended pleadings herein, and hereby shows the following:
I.

The pleading sought to be amended is “Form” for filing petitions for habeas corpus relief
pursuant to Art. 11.07 Tex. Code Crim. Proc.," and the supplemental form for such filing was
filed by mail from Applicant’s counsel’s office on October 19, 2015.

II.

Movant requests that the Court grant leave to file amendments to pleadings described as
follows:

To include in the form for filing the same information that was incorporated by
reference in the memorandum in support of petition for Art. 11.07 habeas relief originally
filed in this Court, which is now pending in this Court.

III.
Good cause exists to file this amended pleading which outweighs any prejudice to the

ends of justice, in general7 or the State of Texas7 in particular. The same factual basis and

grounds for relief that are already before the Court in the original filing is now incorporated in
the form that accompanies the filing. No information has been added No grounds have been
added It is all the same basis for seeking habeas corpus relief`.

WHEREFORE, PREMISES CONSIDERED, Movant requests that the Court grant
leave to file the amended pleadings requested hereinabove, and for such other and further relief

that may be awarded at law or in equity.

Respectfully submitted

/0 c 0

ClayM

Texas Bar No 00795301

Email: csconrad@looneyconrad.com
918 Austin Street

Hempstead, Texas 77445

Tel. (979) 826-8484

Fax. (979) 826-8488

Attorney for Defendant

DAVON PAUL BARRET

CERTIFICATE OF SERVICE

I certify that on October 23 2015 a true and correct copy of Defendant’s Motiori for
Leave to File Amended Pleadings was served by mail on ANDREA JACOBS at 918 Austin,
Hempstead Texas 77445

 

\//l/`)
Clay\€€nrad \

|‘-./\' j

Case No.
(The Clerk of the convicting court will fill this line in.)

IN THE COURT OF CRIMINAL APPEALS 017-TEXAS

feet inwe“ree §er;n§

APPLICATION FOR A T OF HABEAS
SEEKING RELIEF FROM FINAL FELONY CONVICTION
UNDER CODE OF CRIMINAL PROCEDURE, ARTICLE 11.07

NAME= Dm'w /7/}1/¢ /§ /e<)zw~
DATE or BIRTH; in /»LY 7// / 7 93

PLACE oF CoNFrNEMENT: H-H- /OF):/ €./,0 a /Ui '7; TeN/O€;;@@ ca&% »,/) 7;;/

TDCJ-Cli) NUMBER: a./_%_°LL/Z¢_ sii) NUMBER:

(1) This application concerns (check all that apply):

 

§ a conviction |:l parole
[| a sentence El mandatory supervision
l:l time credit [l out-of-time appeal or petition for

discretionary review

(2) What district court entered the judgment of the conviction you want relief from?
(lnclude the court number and county.)

Z‘Zé’rl/i D/,§T)Zm' GF/, 7_)41'1/2/1707' €wva/,'T’A/

(3) What Was the case number in the trial court?

1266€36`8 D

(4) What was the name of the trial judge?

jay . § emqu €/W /4,@/1 €72

Effective: January 1, 2014 1

f/!F)

(5)

(6)

. (7)

(8)

(9)

(10)

Were you represented by counsel? If yes, provide the attorney's name:

)/€5. 4 1511L mdcb€ml. Gc‘w/§ A/ MCg//\)T;{T/
di ¢#eMi/§

What was the date that the judgment was entered?

//)/)r /4, Q£/§

1 For what offense were you convicted and what was the sentence?

MM/Ha)l Q@BMM »d_/D€/H)z;/ werqu

If you were sentenced on more than one count of an indictment in the same court at
the same time, what counts were you convicted of and what was the sentence in each

A{/A

 

What was the plea you entered? (Check one.)

l] guilty-open plea |:l guilty-plea bargain
E`~ not guilty l:| nolo contendere/no contest

If you entered different pleas to counts in a multi-count indictment, please explain:

 

 

What kind of trial did you have?

[:| no jury \:l jury for guilt and punishment
IX jury for guilt, judge for punishment

(11)

(12)

(13)

(14) j

Did you testify at trial? If yes, at what phase of the trial did you testify?
i/ 0 y

Did you appeal from the judgment of conviction?

Q_yes |:l no

If you did appeal, answer the following questions:
(A) What court of appeals did you appeal to? §§ 1'077 D D 15 717 /[T'

(B) What was the case number? 5 Z °/ 3 " 0 ° z c ° ' C R'

(C) Were you represented by counsel on appeal? If yes, provide the attorney's
name:

l /§/4 /W nme/7
(D) What was the decision and the date of the decision? 14 FF/A /l ‘TV '“ 6 5/ 25 l L/
Did you file a petition for discretionary review in the Court of Criminal Appeals?
E‘yes ij no

If you did file a petition for discretionary review, answer the following questions:

` - ~ L
(A) What was the case number? P ‘D 0 66? l /
(B) What was the decision and the date of the decision? /2 € F‘/} €‘! / 52 "_' [,/ 201 L/

Have you previously filed an application for a writ of habeas corpus under Article
11.07 of the Texas Code of Criminal Procedure challenging this conviction?

l:| yes B"no
If you answered yes, answer the following questions:

(A) What was the Court of Criminal Appeals’ writ number?

(15)

(16)

(B) What was the decision and the date of the decision?

 

(C) Please identify the reason that the current claims were not presented and could
not have been presented on your previous application.

 

 

 

 

Do you currently have any petition or appeal pending in any other state or federal
court?

[I yes E<no

If you answered yes, please provide the name of the court and the case number:

 

If you are presenting a claim for time credit, have you exhausted your
administrative remedies by presenting your claim to the time credit resolution
system of the Texas Department of Criminal Justice? (This requirement applies to
any final felony conviction, including state jail felonies)

[l yes E"no

If you answered yes, answer the following questions:

(A) What date did you present the claim? ]\/ / /q`

(B) Did you receive a decision and, if` yes, What Was the date of the decision?

 

If you answered no, please explain why you have not submitted your claim:

Tl./¢ir /; par ~Vr\@ ;5}0£ P/e/zev

(17)

 

 

 

 

 

Beginning on page 6, state concisely every legal ground for your claim that you are
being unlawfully restrained, and then briefly summarize the facts supporting each
ground. You must present each ground on the form application and a brief
summary of the facts. If your grounds and brief summary of the facts have not been
presented on the form application, the Court will not consider your grounds.

If you have more than four grounds, use pages 14 and 15 of the form, which you
may copy as many times as needed to give you a separate page for each ground, with
each ground numbered in sequence. The recitation of the facts supporting each
ground must be no longer than the two pages provided for the ground in the form.

You may include with the form a memorandum of law if you want to present legal
authorities, but the Court will not consider grounds for relief set out in a
memorandum of law that were not raised on the form. The citations and argument
must be in a memorandum that complies with Texas Rule of Appellate Procedure 73
and does not exceed 15,000 words if computer-generated or 50 pages if not. If you
are challenging the validity of your conviction, please include a summary of the facts
pertaining to your offense and trial in your memorandum.

GROUND ONE:

Ijgg__(.&iw.€, AS€:\'S'i'L'm LQ_'» i’/§$ic\kaj'b j~vg§i`§- al -l_n.,#°cc§lrv'@-&o£ fig mmpi
M,%$_/Q§i’ O¥__igkp&i ?\€_O\O\M‘U` _}O./i:\r ’i'\> `l'f\l o%r£<.r Qo<\\'?ir;,\g

-FACTS SUPPORTING GROUND ONE:
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well deec@~ol … o\jQJe\/\ par @d@»:§` ”Dov,;\§~t;i\i \\)n`<w'
4\-0 \kiirrm;i claim die \`/Aoe\+§g@r-H`M\ was done so
cowsli cride r/\rv\- waiving wke'ti`~/ 4a data rita old\
swann giant ind me awarded aaa cwan
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rita m w carriage Hpi§mjt a error
Cov\s\`A\Q/d `tfe sink Mci\ less Cteoe{/f_ n/
N§ch\` i)r' lying A_,Xo?l`\r\m)\/ i<rlo\m~& rif TH»/
lo\.p` U\Ll>zil <ri~l rla 14ka rid tamm
d ./i§i’ l/\~}v\ (\e id\M L;w€ ocerva
4b apa `

G<Sn 1

\

 

GROUND TWO:

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Qg|&,ll lO Q'HKL rf\t)/r dl l\Cra/j an wyng Ukactimv\
§%®w \f:eco»~§\e»e l QNA'VP lO\/€oi¢.i opm sz&-\ dwth

FACTS SUPPORTING GROUNDL" TWO:

A_§_¢QM iO\/g,_c»l~_f§_ Was M'jj,\»r;;s)m\d _
GV\CSL {Q»€:¢l" OiOQA/\ \)Y\"\i:\\ \l"/LQ CO»§»°- UUQ\)\.Q-¢>l\ S'KS»Q/'l_*€\r

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le,§l \pa'f' been cla/un fran miami M net
twa eda ab;lile?/ fe altse\m `<~\’ti/\ AY]Q(@J
aff flee Olim`M@ 5a Appg;amir empl
iran w nlwa draw N` winn
~l<> oenth edf io\},i<` 911/iu wall (T`/\
%Q/,z@w¢»~ faa final alma jett tlv<isf§@l;…
air tmi …Ni win nf- zimmer if
~\i_a enin r:)m(xqr lm}v\ am ledger/ian
ef l/l~r me alan onto invite affd
A\molxce»jf \,\{i\t)l@l l\n,.»e C\prl-e@é“l*£r offed

GROUND THREE:

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C`mr\ od)~é/"rwi/\S }Q+NQ;\M C/uJ'$ '-i€$'l'\'\-B~]@v‘<>l ev‘<>lu;“l'j;$:
M§i£b_'i§f£_€md&m_m §LM/ow; mo rpari~\ `

\
FACTS SUPPORTING GROUND THREE:

Applica@cr dear Cl»wéa$l omc-til e§ji~<>_\v@lw<__
matthews j;,.r rain yiP'@;e€\»-QM '\/le_€»:b__@
diane tch vtdl»=;ale@f~» owl ~rf@,cq ian r\Q
a\@ir@aw»\. _:r\ flack &wo lmr\ci,\cfw /Qz\/f
impart O}rdfn cri/dx iv\<;ltd~»<>l‘ neede
bleed-§ Ca~\ol l<;uM /l;éi mm reporteme
\v\Al'\P<llM laramore rif@xd man /uQ/i:; deed

d>\v:Jl</N \@t)r\;»z© _C (kkol 'l*O dol@l rear i./\

Cro€>@)s(OcWL/w\n')l.-\,<>//\ K\F Q,i/Qi/\ \Ji\)r</i Gr/D\m\e€l_-

 

\.

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' 0

empirica@ &\Q,Q@M, Ur/twj&

     
 

10

GROUND FOUR:

/\` \;Q Q$3\§*imr\u,:§§p §Q¢‘/'\gq\" § OM§L[/Ar\j@m_mi`°\
Wij HQ (R <>.Q …\)Qy+~jo¢wy\ A)m»\-Swfvf`
ibmva YO(QIQMM V\Af H/\»§&vvge r\) Qf §wYYOQ/\Q\

FLA!§:T SU§§O§';IKYQGROWD:(;/UE O(Qj(bv` q

/lLk vava wm €r§f '“<4‘9§1~¢§@<§ ca3 a rob\m/QE. NQ
§§ng . my .M¢ 535/933 wl m dow +`f@+
mg M§» WQ;~Q@ 33 333 H\zz@ll ma M,\§M,
Qw\<.§_l l\)m\g& la SOIQ)QQQAQ QMLN NH~»QAA» TY_@~
“qMA\ML&Q" QL@A§YQ ,\AL@;QM,LQA mw],w\
cow wh m[/LL ’D© +»mzz%( 'v\lew/MQ
/A<mo\ \QO~’V w@& h mluyzgl +Q QcQQ_W{’ ¢/Q\,Qm/
537 \ wL»\ /F@L <)\M~%€\wlq Ann\\c;%&wm nw
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301\ 30 )\Q/~ LQOJ. ®Q'A@m §Q€S~MM\
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jr?\/)MCWJ’…M {/\»’(`X\ALQ,A£L;Q@Q CWMQ$ /\Q&\;Q
-lgv gm Ljoowoc\ M/¥Qr»\m/\Q §Cesnej.

12

COUNTY OF HARRIS *
STATE OF TEXAS *
AFFIDAVIT OF DAVON PAUL BARRETT

BEFORE ME,'the Undersigned Notary Public, appeared a person identified to me as Davon
Paul Barrett, who reported as follows:

“My name is Davon Paul Barrett. I am currently incarcerated at the H.H. Coffreld Unit,
2661 FM 2054, Tennessee Colony, TX 75884. l am over 21 years of age and competent to write
this affidavit The facts herein related are true and correct and of my own personal knowledge.

“l was arrested on or about January 13, 2012. On the second setting, a ten year plea bargain
offer was made on my case. My lawyer told me about it in court, but never discussed With me of
the desirability of the plea offer. In fact, lhe never discussed it with me at all, just let me know it"
was there. l was indicted on February l7, 2012, and due to the indictment I was told the offer was
no longer available, If my attorney had taken time to discuss this plea offer or the risks of going
to trial with me during the two weeks during which this offer was available, l would have accepted

that offer. By letting this offer expire before discussing it with me, l believe my lawyer cost me
the opportunity to accept it.

“A_nother ten year offer was made on or about July 30, 2012, but it Was not discussed with
me at that time, lf my attorney had taken time to discuss this plea offer or the risks of going to trial
with me on that date, l would have accepted that offer. By letting this offer expire before discussing
it with me, l believe my lawyer cost me the opportunity to accept it.

“l went to trial without my lawyer ever sitting down and discussing any plea offers With
me except in the most general terms. She was not available to answer my questions She never
spoke to me outside of court, and spent very little time With me discussing the case in court. l do
not believe that my trial lawyers represented me properly.

“Because l never had a discussion with my lawyer about the terms or desirability of any
pleas offers the State made, l ended up going to and was sentenced to sixty years in prison. l
understand that I was found guilty, but l believe that When plea offers were made, l should have
been given the information to intelligently consider them.

“Further l sayeth not.”

   

avon Paul Barrett'

S_WORN AND SUBSCRIBED _TO BEFORE ME on July 13, 2015.

Gaye L. Karriker
Notary P\@blic rn and for the State of Texas

lowry Fub|ic, stats d Tme
ly hmm|ubn th¢

§7/20/2015

Notary Without Bond

 

WHEREFORE, APPLICANT PRAYS THAT THE COURT GRANT APPLICANT
RELIEF TO WHICH HE MAY BE ENTITLED IN THIS PROCEEDING.

VERIFICATION

This application must be verified or it will be dismissed for non-compliance For
verification purposes, an applicant is a person filing the application on his or her own behalf. A
petitioner is a person filing the application on behalf of an applicant, for example, an applicant’s
attomey. An inmate is a person who is in custody.

The inmate applicant must sign either the “Oath Before a Notary Public” before a
notary public or the “lnmate’s Declaration” without a notary public. If the inmate is represented
by a licensed attorney, the attorney may sign the “Oath Before a Notary Public” as petitioner and
then complete “Petitioner’s lnformation.” A non-inmate applicant must sign the “Oath Before a
Notary Public” before a notary public unless he is represented by a licensed attorney, in which
case the attorney may sign the verification as petitioner.

A non-inmate non-attorney petitioner must sign the “Oath Before a Notary Public”
before a notary public and must also complete “Petitioner’s lnformation.” An inmate petitioner
must sign either the “Oath Before a Notary Public” before a notary public or the “lnmate’s

Declaration” without a notary public and must also complete the appropriate “Petitioner’s
lnformation.”

OATH BEFORE A NOTARY PUBLIC

STATE OF TEXAS

COUNTY OF ¢’:Z &§Z Z 152

0 l /‘7*'/ § ~ Ua"W /z 140 ,being duly sworn, under oath says: “I arn
the applicant /@circle one) in this action and know the contents of the above
application for a writ of habeas corpus and, according to my belief, the facts stated in the

application are true.” M

LSYUW_{MHKH ly'{tioner (circle one)

sUBsCRiBED AND swoRN To BEFoRE ME THIS 17 DAY oF § J§./¥' 71 20 /'§".

canTArLrNNELoRmE @_,»AQW O) ?/Qg(/(,LQCV

.: MY COMMISS|ON EXP|RES

Signat\ire of Notary Public

 

16

     
 

     
 
 
   

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1_~P3 Form 381 1, April 2015 PSN 7530-02»000-9053 § ` ' Demesrie nerum 1=1 1 '
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3//011/11113/1111/19_'191:’50

TARRANT couRw?/_'STXA cLERK
' NUV l il 2913
NO. C-396-010599-1266858-A
_ 1131 /.7 <..)
EX PAR'I'E § [N THE 3,96¢*la DEPUTY
§
§ DISTRICT COURT OF
§
DAVON PAUL BARRETT § TARRANT COUNTY, TX
ORDER

The application for writ of habeas corpus of DAVON PAUL BARRETT
4(“Applicant”) does not “set forth in summary fashion the facts supporting each
groun .” Therefore, this Court recommends that Applicant’s application be
DISMISSED FOR NON-COMI’LIANCE because Applicant’s application fails to
comply With Texas Rules of Appellate Procedure Rule 73.1. ‘

The Court timber orders and directs:

1. The Clerk of this Court to tile these indings and transmit them along
With the Writ Transcript to the Clerk of thc Court of Criminal Appeals as required by

v laW. .

2. The Clerk of this Court to furnish a copy of the Court's indings to
Applicant, Mr. Davon Paul Barrett, by and through his attorney of record, Hon. Clay
S. Conrad, at 117 67 Katy Freeway, Ste. 740, Houston, Texas 77079, and to the post-

conviction section of the Criminal District Attomey's Ofticc.

SIGNEDANDENIEREDUS ¢Q deny %MLM, ,2015.

zz§GE PRESIDWG

NO. C-396-010599-1266858-A

EX PARTE ' § IN THE DISTRICT COURT

§

§
§ 396TH JUDICIAL DISTRICT

§

~ §
DAVON PAUL BARRETT § OF TARRANT COUNTY, TEXAS

DAVON PAUL BARRETT’S OBJECTIONS TO THE
ORDER OF DISMISSAL FOR NON-COMPLIANCE

TO: HON()RABLE GEORGE GALLAGHER, PRES[DING

DAVON PAUL BARRETT, Applicant, by and through his counsel, enters these his
objections to the ORDER of dismissal and recommendation of dismissal entered by this Court on
November lO'7 2015, and in support of such objections Applicant would show as follows:

I.

The District Court entered its Order of dismissal and recommendation to the Texas Court
of Criminal Appeals of dismissal because of its finding that Applicant’s application for habeas
corpus relief does not set forth in summary fashion ihe facts.support each ground. lt is unknown
Whether the recommendation of dismissal is “with” or “Without” prejudice The entire
controversy revolves around the de minimus claim by the State of Texas that Applicant failed to
comply with Rule 73.1 Tex. R. App. Proc. that the facts supporting habeas relief were not
entered on the “form” provided for filing under Art. 11.07 Tex. Code Crim. Proc., and as such
the entire habeas application should be dismissed The reasoning is entered in error.

II.

First, all the facts in support of granting habeas relief were before the District Court on

original filing The “form” was filed concurrently with a memorandum in support, and the
“form” referenced the memorandum for such factual basis. All the facts in support of granting
habeas relief were included in the memorandum, just as referenced by notation on the “form”. To
claim the factual basis was not before the District Court on original submission simply is not the
case. And in fact, rather than dismissing the initial application for failure to present all the
habeas facts on original filing, the District Court ordered the State of Texas to answer If the
initial filing did not comply substantially with the rules then the District Court would have
simply refused tofile the defective application and ordered the defect to be cured_
III.

Rather than do that, the Court filed the application and in doing so entered a de facto
issuance of the writ. In ordering the State to answer the District Court had to have found the
application was sufficient7 i.e., the factual basis, if true, was sufficient to warrant the granting of
habeas corpus relief Otherwise, and if the factual basis was insufficient, or if the pleading was
deemed frivolous, the District Court would have simply dismissed the application as frivolous
This did not occur. Rather the District Court ordered the State to answer

IV.

In its “answer” the State of Texas did not deny a single habeas corpus fact alleged The
State made no claim that the facts, if true, were insufficient to warrant the granting of habeas
relief The State simply filed for dismissal because the facts were not set out on the proper piece
of paper in the habeas corpus packet No authority has been cited by the State of Texas, or the
District Court that the remedy for the defect claimed to exist in this case is DISMISSAL The
Texas Court of Criminal Appeals has never concluded that DISMISSAL of a habeas application,

which sets out an undisputed prima facie case for granting habeas relief, is subject to dismissal

because the factual basis was included in a memorandum in support (a different piece of paper)
rather than on the habeas application “form” itself

Additionally, neither the State of Texas, nor the District Court, cited to a single case
decided by the Texas Court of Criminal Appeals that including the factual basis for granting
habeas corpus relief in a memorandum, rather than on the habeas application itself, is a defect in
form so significant as to warrant dismissal of the entire application. Likewise, no case from the
Texas Court of Criminal Appeals was cited holding that incorporating by reference on the habeas
application “form” itself the memorandum filed concurrently as being the document Where the
facts would be revealed, is so procedurally deficient as to warrant dismissal of the application in
its entirety

V.

This case involves a habeas corpus Applicant filing an application that sufficiently sets
out all the habeas facts to support the granting of habeas relief The ineffective assistance claims
made are substantial, that not one but two lawyers failed to apprise the Applicant of the
availability of a plea bargain, on not one but two occasions, in which Applicant could have
pleaded guilty for a ten year sentence Prejudice to Applicant is empirical as the sentence
imposed was 60 years in prison, 50 years more than what Applicant could have pleaded guilty to
without a trial Additionally, and not denied by the State, is the reality that trial counsel failed to
introduce a video tape of the crime itself, and that evidence revealed no firearm was used or
exhibited in the commission of the offense Applicant was sentenced to 60 years in prison for
aggravated robbery, when there Was clear evidence that no firearm was used resulting in
Applicant being incarcerated for 40 years greater than the maximum sentence allowed by law for

the crime that was committed Prejudice to Applicant is clear and unequivocal

VI_

The Order of dismissal is firrther entered in error because it does not reflect the entirety of
the matter before the District Court. Applicant filed his application, and the State answered with
a motion to dismiss However7 that motion was filed October 19, 2015, and served on
Applicant’s counsel Applicant’s counsel, on October 20, 2015, filed with the District Court, a
response to the State’s motion to dismiss, and that response was received by the District Court on
October 22, 2015. (Attached). However7 that was not all that was filed in response Received by
the District Court on October 29, 2015 was Applicant’s amended/supplemental application for
habeas corpus in which Applicant filed in all the blanks on the habeas application “form” itself,
curing all the defects the State had entered complaint The amended/supplemental form was
filed twelve (12) days before the District Court entered its order of dismissal claiming the “form”
was not properly completed As such, the “form” and the memorandum were both before the
Court when the Order recommending dismissal was entered All the habeas facts in support of
granting habeas relief were before the Court when the Court entered the order finding otherwise
(Attached). lt is simply erroneous and not true that the Applicant does not ‘set forth in
summary fashion the facts supporting each ground. . . ’ . . 1

VII_

In the end the District Court has attempted to deny Applicant the Great'Writ of Habeas
Corpus, not because the merits of his claims are frivolous7 and not because the habeas facts7 if
true, are insufficient to warrant the granting of habeas relief The District Court would have this
Applicant’s application dismissed for no other reason than that the State requests such, on
grounds not supported by a single case holding recommending such1 and on a record that in no

way supports such a conclusion Recommending dismissal of this application orr these grounds

and for these reasons is an abuse of discretion, and the recommendation must be disallowed by
the Texas Court of Criminal Appeals

WHEREFORE, PREMISES CONSIDERED, Applicant requests that the District
Court vacates and sets aside its order recommending dismissal, to the end that the State of Texas
is ordered to answer the Applicant’s application in its entirety7 to the end that this matter is

returned to the Texas Court of Criminal Appeals for final resolution

 

Respectfully submitted,
By: //)Z’/ w
MConrad/ (

Texas Bar No. 00795301

Email: csconrad@looneyconrad_com
918 Austin Street

Hempstead7 Texas 77445

Tel_ (979) 826-8484

Fax. (979) 826-8488

Attorney for Defendant

DAVON PAUL BARRET

CERTIFICATE OF SERVICE

I certify that on November 13, 20157 a true and correct copy of Defendant’s Motion for
Leave to File Amended Pleadings was served by mail on ANDREA JACOBS , Assistant District

Attorn€Y, 401 West Bell<nap, FOrt Worth, Texas 76196-0201 via :u:m::z
@CZM

\__/

LooNEYg§goNRAD P c L/:`

Tméézfa@ma

11767 KA'iYFREi;WAY, SUITF,71er PAul C. I OONiY ' 4 918 AUs'r‘IN STREET

HOUSTON, TEXAS 77079 CLAY S. CONRAD HEMPS'I`EAD, TEXAS 774-45
' (281') 597-8818 - OFFICE . RICHARD L. SENASAC - (979) 826-8484~ - OI~`FICE
(281) 597-8284 - FACSIMILE ' ~ CARBEIT “TREY” DUHON III, (979) 826-8488 - P`ACSINIILE
' . OF-COUNSEL
Clerk, Court of Criminal Appeals _ _ November 13, 2015-

P.O. Box 12308
Austin, rean 78711

Tarrant County District Clerk
100 North Houston Street
Fort Worth, Texas 76102

Andrea Jacobs

Assistant District Attorney _
401 West Be|knap

Fort Worth, Texas 76196-0201

RE: Ex Parte'Davon Pau| Barrett, Case No. C-396-101599-1266858-A

GREET|NGS:

November 10, 2015 District Judge Gallagher of the 396th District Court entered a
recommendation and ORDER that the Petition and Application for Davori Pau| Barrett pursuant to Art.
11 07 Tex Code Crim. Proc be dismissed No time was accorded the Applicant for filing written objections

' to that recommendation The Clerk of the District Court was ORDERED to transfer that recommendation
to the Clerk of the Texas Court of Criminal Appeals as required by |avv.

ENCLOSED PLEASE FlND Applicant‘s objections to that recommendation. Please include these
objections with the file that was transmitted to the Clerk of the Court of Criminal Appeals for consideration

by the full Court on submission.

Thanking you in advance for your consideration,- and l remain,

Sincerely,

b Clay Conrad 4
For the Firr_n

ENCLOSURES

'Cc: file
cc/jl

 

