                                                                                           WR-82,828-01
                                                                            COURT OF CRIMINAL APPEALS
                                                                                             AUSTIN, TEXAS
                                                                            Transmitted 6/11/2015 3:06:49 PM
                                                                              Accepted 6/11/2015 3:56:19 PM
                                                                                              ABEL ACOSTA
                                  Nos. WR-82, 828-01                                                  CLERK

EX PARTE                                  §           IN THE TEXAS        RECEIVED
                                                                   COURT OF CRIMINAL APPEALS
RODNEY Y. ANDERSON                        §           COURT OF CRIMINAL APPEALS
                                                                          6/11/2015
TDCJ-ID # 01621165                        §                                ABEL ACOSTA, CLERK
                                          §           [Cause No. 09-07-07255-CR(1) in the
                                          §           359th Judicial District Court
                                          §           Montgomery County, Texas]

          APPLICANT’S REPLY TO STATE’S RESPONSE REGARDING
        APPLICANT’S MOTION TO EXTEND TIME TO CONTINUE WRIT
       HEARING AND COMPLY WITH ORDER ISSUED ON MARCH 25, 2015

TO THE HONORABLE JUDGES OF SAID COURT:

          NOW COMES, Applicant, RODNEY Y. ANDERSON, who by and through

undersigned counsel, respectfully replies to the State’s Response to Applicant’s

Motion to Extend Time to Continue Writ Hearing and Comply with Order Issued

on March 25, 2015 and would show as follows:

          Applicant seeks an extension of the time allowed in this Honorable Court’s

March 25, 2015 Order, not for delay but for good cause. Applicant’s requests a

sixty (60) - day extension to and including September 21, 2015. Applicant’s

evidentiary hearing began as scheduled on May 27, 2015. For reasons discussed

below and in Applicant’s Motion, the trial Court could not continue the hearing on

May 28, 2015 as previously scheduled. The hearing is currently scheduled to

continue on June 16, 2015. Applicant seeks the sixty (60) - day extension for the

same reasons previously outlined in his motion:

          1. Undersigned counsel has the following professional conflicts:
                                              1	  
	  
       Counsel Cynthia Orr is the current chair of the American Bar Association’s

Criminal Justice Section. In that capacity, she is scheduled to attend the following

meetings and is unable to continue the hearing on June 16, 2015:

             a. ABA’s Fighting Implicit Bias Committee Meeting scheduled on
             June 8-10, 2015 in Philadelphia, PA;

             b. ABA’s 2015 London Sessions scheduled on June 11-15, 2015 in
             London, England; and

             c. International Society for the Reform of Criminal Law scheduled on
             June 21-25, 2015 in Edinburgh, Scotland.

       2. Undersigned counsel has the following personal conflict:

       Counsel Chris Griffith’s wife is scheduled to give birth to their first child on

June 19, 2015. Mrs. Griffith’s doctors, based upon prior examination, had

discussed inducing her on May 29, 2015, but following additional testing and

examinations that day, chose not to. Mrs. Griffith’s doctors have stated that they

will induce should she not deliver on June 19, 2015 but have also stated that there

is a significant possibility that she will deliver their child prior to that date. Mrs.

Griffith has scheduled appointments with her obstetrician through June 19, 2015.

As of this date, Mrs. Griffith has not given birth to their child.

       3. Applicant’s witness and trial attorney, Chris Tritico, has judicial conflicts

throughout the month of June with limited availability, as does his counsel, Troy

McKinney.



                                           2	  
	  
       4. The trial Court has also informed undersigned counsel that it is not

available the week of June 29, 2015.

       Applicant disagrees with the State’s opinion of and characterization of the

proceedings thus far. The evidentiary hearing began on May 27, 2015 as

scheduled. Applicant called Ms. Frances Madden, formerly a prosecutor on

Applicant’s case prior to trial. Amongst other things, Ms. Madden testified that she

had been given neither a copy nor the original agreement between the Montgomery

County Sheriff’s Department and Jeffery Harmon for Mr. Harmon’s services as an

informant. She also stated that she did not recall seeing the documents shown to

her purporting to be said agreement. This contradicted assertions by the trial

prosecutor and sworn statements at trial that Ms. Madden had been given the

original and only copy of an agreement with Mr. Harmon to be an informant.

Furthermore, that the State now asserts that the agreement was found in the

Sheriff’s Department’s files also contradicts these statements.

             MR. FREYER: Yesterday the Court asked me, my being in the
             best position to get a certain document, to produce a copy of the
             written contract between the SI Unit and the confidential
             informant.
             This morning Mr. Womack informed me that he had provided
             that to my predecessor, Frances Madden, sometime last year.
             Well, I’m representing to this Court as an officer of this Court
             and as a chief prosecutor in this court, my review of the file did
             not reveal -- she lost it. It’s gone.
             THE COURT: Okay. 5RR7.



                                          3	  
	  
             THE COURT: Okay. Tell me two things: First of all, was that
             the only copy of the contract executed between SIU -- you gave
             her the original; and you didn’t keep a copy, Mr. Womack?
             MR. WOMACK: No, ma’am. 5RR8.

             THE COURT: Okay. Let’s see. Detective Womack and Likens,
             if you will stand and raise your right hands.
             (WITNESSES SWORN)
             THE COURT: Okay. Detective Womack, just a moment ago I
             asked you if you retained a copy or if that was the original that
             went to Ms. Madden in the DA’s office. And you told me that
             you did not retain a copy. And that, in fact, she had the only
             copy of that -- the original was the only version of that. Is that
             still true and correct?
             MR. WOMACK: That is correct. 5RR10.


       Detective Womack purportedly organized and directed the police operation

that is at the heart of this case. He is also the individual who purportedly made the

agreement with Mr. Harmon as an informant and supervised him during the

operation. Ms. Madden also stated that she herself, as a prosecutor for

Montgomery County, had filed formal complaints against Caryn McAnarney for

filing false reports. Caryn McAnarney, at the time of the facts of this case, was

employed as CSI for the Montgomery Sheriff’s Department and collected much of

the evidence in this case including narcotics evidence. Ms. McAnarney was

terminated from the Sheriff’s Department prior to trial, in part, for failing to

perform testing she reported she had conducted and taking items from the property

room to her home.



                                          4	  
	  
       Trial defense attorney Chris Tritico would later testify that he was not told of

the extent of Ms. McAnarney’s involvement in this case including that she

reportedly collected narcotics evidence from the scene that seems to be different in

nature from that which was used at trial, was not told that she had been terminated

under circumstances that called her integrity into question, and was not told that

the District Attorney’s office had previously filed complaints against Ms.

McAnarney for making false reports. Mr. Tritico stated that he did not recall being

given Ms. McAnarney’s report of her investigation of the scene and what evidence

she had collected. He also stated he had not been told by prosecutors that Ms.

McAnarney      had    supposedly    collected      six   white   rocks   of   suspected

methamphetamine at the scene when the narcotics evidence he was aware of was in

powder form.

       Applicant did call the records custodians for subpoenaed records on May 27,

with the trial Court’s suggestion, but disagrees with the State’s characterization of

these subpoenas. While the police operation at the heart of this case was conducted

by a unit of the Montgomery Sheriff’s Department, the individual officers and

federal agent involved in the actual operation and arrests were from numerous

agencies; the Montgomery Police Department, Conroe Police Department, Conroe

Independent School District Police Department, and Immigration and Customs

Enforcement.


                                           5	  
	  
       The initial statements from eyewitnesses Cory Brummett and Lindsey Paras,

which do not mention the officers wearing police attire or insignia, were taken on

Conroe Police Department forms, not Sheriff’s Department forms. Their

statements are directly relevant to the issue designated by this Court: “…whether

the State withheld material evidence of Anderson’s innocence by failing to disclose

that eyewitnesses had given statements at the scene in which they were unable to

identify the armed men rushing Applicant as law enforcement officers, tending to

show that Applicant and his co-defendant were not aware these men were law

enforcement.” As such, Applicant has cause to believe that further statements

were taken on forms from the individual officer’s departments and to subpoena

materials from the individual departments involved in this case.

       Applicant also called Cory Brummett, now a Montgomery County Sheriff’s

deputy, to testify regarding his eyewitness statements. In the days leading up to the

hearing, Houston and the surrounding area, Montgomery County included, were

inundated by rainfall that caused severe flooding. Part of the consideration to call

the records custodians, all law enforcement officers, and Mr. Brummett to testify

early in the day was that these individuals were needed to respond to emergencies

caused by the flooding and it was unsure if they would be available later in the

proceedings due to their duties as law enforcement officers.




                                         6	  
	  
       During the course of the proceedings, the trial Court informed counsel that it

could not continue the hearing the next day, May 28, 2015, as previously

scheduled as it had to pick a jury for an upcoming trial. The trial Court suggested

the hearing be continued to May 29, 2015. Undersigned counsel both had

previously scheduled conflicts, as noted in Applicant’s Motion, on May 29, 2015.

Three witnesses, who were eyewitnesses to the incident at the heart of this case,

had conflicts that limited their availability to return for a later hearing date. As

such, counsel, out of an abundance of caution, called these witnesses and informed

the trial Court that attorney Chris Tritico was subject to being recalled. These three

eyewitnesses, including Lindsey Paras, recounted that they did not observe officers

wearing identifiable clothing or insignia during the incident and only saw such

after Applicant and his co-defendant had been arrested.

       Mr. Tritico, in addition to the aforementioned statements, stated that he did

not recall being given the initial statements of eyewitnesses Cory Brummett or

Lindsey Paras that indicated that the officers were not wearing clothing or insignia

identifying them as law enforcement officers. Applicant plans to recall Mr. Tritico

to address additional matters regarding the issues designated by this Court.

Additionally, Mr. Tritico has not been denied access to his file as the State alleges.

Mr. Tritico does not have possession of his trial file, having given it to appellate

counsel following the trial. Undersigned counsel is still attempting to locate the


                                          7	  
	  
file. Similarly, Ms. Frances Madden stated, that upon her recent review of the

State’s file in preparation for her testimony at the hearing, she was informed that

the State is missing the portion of their file that would contain the trial prosecutors’

notes regarding report and documents and pretrial proceedings.

        Furthermore, Applicant did not choose not to call Ms. Andrea Kolski as

alleged by the State. Applicant had to cease questioning witnesses when the trial

Court informed counsel that it had a previously scheduled matter to attend to. In

fact, the trial Court kindly altered its scheduled duties so that Applicant could call

the three abovementioned eyewitnesses. Undersigned counsel understood that the

hearing would be continued so that other witnesses could be called, but now the

above conflicts present difficulty as to when this can occur.

        WHEREFORE,        PREMISES       CONSIDERED,          Applicant    prays    this

Honorable Court grant his motion and extend the time by sixty (60) days, to and

including September 21, 2015, so that the trial Court can continue the writ hearing,

prepare a supplemental transcript and supplemental findings of fact and

conclusions of law in order that it may comply with the Order issued on March 25,

2015.

                                        Respectfully submitted:

                                        CYNTHIA E. ORR
                                        Bar No. 15313350
                                        GOLDSTEIN, GOLDSTEIN & HILLEY
                                        310 S. St. Mary’s St.
                                           8	  
	  
                                                    29th Fl. Tower Life Bldg.
                                                    San Antonio, Texas 78205
                                                    whitecollarlaw@gmail.com
                                                    210-226-1463 phone
                                                    210-226-8367 facsimile

                                                    CHRISTOPHER M. GRIFFITH
                                                    Bar No. 24069072
                                                    LAW OFFICE OF CHRISTOPHER M.
                                                    GRIFFITH
                                                    310 S. St. Mary’s St., Ste. 1215
                                                    San Antonio, Texas 78205
                                                    cmarkgriffith@gmail.com
                                                    210-229-1444 phone
                                                    210-229-1445 facsimile

                                                    By:_/s/Christopher M. Griffith____
                                                      CHRISTOPHER M. GRIFFITH

                                                    Attorneys for Applicant,
                                                    RODNEY Y. ANDERSON


                                  CERTIFICATE OF SERVICE

        I hereby certify that a true and correct copy of the foregoing motion has been

sent      to      Assistant        District       Attorney         Bill      Delmore,          via      e-mail,

bill.delmore@mctx.org,	   as	   a	   participant	   of	   the	   electronic	   filing	   system	   -­‐	  

efiletexas.gov, on this the 11th day of June, 2015.


                                                    By:_/s/Christopher M. Griffith____
                                                      CHRISTOPHER M. GRIFFITH



	  

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