                                                                               ACCEPTED
                                                                           06-14-00149-CR
                                                                SIXTH COURT OF APPEALS
                                                                      TEXARKANA, TEXAS
                                                                       8/3/2015 8:15:10 AM
                                                                          DEBBIE AUTREY
                                                                                    CLERK

                          No.   06-14-00149-CR

                                                         FILED IN
                                                  6th COURT OF APPEALS
                      IN THE COURT OF APPEALS       TEXARKANA, TEXAS
         FOR THE                                  8/3/2015 8:15:10 AM
                   SIXTH DISTRICT OF TEXAS AT TEXARKANA
                                                      DEBBIE AUTREY
                                                          Clerk

                      RAYMOND EARL BARNETT
                            Appellant

                                   v.

                         THE STATE OF TEXAS
                               Appellee



         ON APPEAL FROM THE 336TH JUDICIAL DISTRICT COURT
                     OF FANNIN COUNTY, TEXAS
            THE HON. LAURINE BLAKE, JUDGE PRESIDING
                   TRIAL COURT CAUSE NO. 20922



               APPELLANT'S MOTION FOR REHEARING



                                STEVEN R. MIEARS
                                  State Bar No. 14025600
                                  211 North Main
                                  Bonham, Texas 75418
                                  Tel: 903-640-4963
                                  Fax: 903-640-4964
                                  Email: stevemiears@msn.com




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                             MOTION FOR REHEARING


TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:


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

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

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

POINT OF ERROR ONE:

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

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

Appellate Procedure.

ARGUMENT

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

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

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

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

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

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

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

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

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

POINT OF ERROR TWO:

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

ARGUMENT

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

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

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

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

dismissed.

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

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

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

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

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

a valid judgment.




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

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

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

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

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

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

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

P. Rule 66.

POINT OF ERROR THREE

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

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

ARGUMENT

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

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

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

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

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

all of his cases. The Court’s analysis is wrong for several reasons.


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      First, the claims of the illegal spillover effect could not have been raised on direct

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

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

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

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

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

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

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

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

enter an invalid judgment memorializing an incorrect judgment.

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

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

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

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

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

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

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

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

the dismissal of the charges did not occur until the Appellant filed his writ of mandamus.


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        The opinion errs in failing to acknowledge that Appellant’s ability to appeal those

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

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

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

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

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

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

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

errs.

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

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

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

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

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

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

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

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

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




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                               PRAYER FOR RELIEF

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

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

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


                                                     RESPECTFULLY SUMITTED,


                                                           _____________________
                                                                     Steven R. Miears
                                                                       211 North Main
                                                                 Bonham, Texas 75418
                                                                SteveMiears@msn.com
                                                                     Tel. 903-640-4963
                                                                    Fax: 903-640-4964
                                                          State Bar Card No. 14025600
                                                               Attorney for Appellant




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                          Certificate of Word Count


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

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

rehearing.

                                                  _________________________
                                                                Steven R. Miears




                             Certificate of Service


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

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

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

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

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

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




                                       _________________________________
                                                                  Steven R. Miears




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