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                                 LETTER BRIEF TO THE


                          TEXAS COURT OF CRIMINAL APPEALS


                                         EN BANC




                                    TR.CT.NO. 20118




        To the Honorable Judges of the Texas Court of Criminal Appeals. I have been

convicted of a crime I did not do. There is more evidence to support the facts that there

was no crime committed at all. After two trials I was convicted by a prosecutor, Bill Ray

Gant, who was allowed by the State Court to use unethical tactics to create an unfair,

unconstitutional trial.


        I come before this, the highest State Court in Texas, to grieve the following: It is

my right, according to the First Amendment to the United States Constitution to have my

grievance heard. The record will reflect the following:

        In March of 2002, a one day trial was held where the State Court allowed

Assistant District Attorney Billy Ray Gant to completely side step Discovery and Texas

Rules of Evidence to create a trial so prejudicially unfair as to render it completely

Unconstitutional^111 Amendment right to impartial jury (Fair trial). 14th Amendment
Equal Protection,,of law,and Due Process.

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

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

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

appointed for trialandthe Direct Appeal by the convicting court. Attorney for the Direct
Appeal has a duty to inform his client of it being affirmed by the Court of Criminal

Appeals, yet he did not. It was a blatant prejudicial act hiding the fact that he deliberately

hid certain facts from the higher court that would have reversed this conviction.

       A State Habeas Corpus was filed. The common man's only Writ of Right to

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

Court of Criminal Appeals, my right to "Petition the Government for Redress of

Grievances" is protected in the United States Constitution Amendment number one,

Article I section 9 of the United States Constitution clearly states, "The privilege of the

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

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

from the Appellate process altogether. With no accountability by this court or any other.

Later, after discovering impeachment evidence that was deliberately withheld by the

prosecution during trial, a State Evidentiary hearing was held proving a gross miscarriage

of justice. But I was denied reliefdue to the State Courts determination that the first

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

the apple." Yet the first Habeas was never heard! Even after this very court ordered

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

very entity of the judicial systemthat railroadedme in trial. No State judge

acknowledged receipt of the writ. NoJState judge addressed the same issues that "Should

have been presented in petitioners original Habeas." In essence, this State Court was

allowed to completely side step any wrongdoing of blatant acts of unethical,

unconstitutional behavior by this very court. (See enclosed documents.)
       I had no effective representation in trial to protect my rights as a United States

Citizen. The same ineffective attorney was put in place to protect the State Court of

wrongdoing and preserve a conviction that was illegal, prejudicial and unconstitutional. I

had NO effective Direct Appeal. No petition for Discretionary Review and no State

Habeas Corpus. The papers were filled out and filed, but no State Post Conviction

Review to insure conformity in the judicial process that governs our society.

       The Federal Courts use this against me to deny me relief. Just like Fannin County

used their own mishandling of the first State Habeas Corpus to deny the second. This is

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

many othershave been subject to this kind of judicial treatment? When will somebody do

something about it?



                                             PRAYER




       My hope is that, as a United States Citizenunder two Constitutions that forbid

this kind of treatment, the Texas Constitution and the United States Constitution, this

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

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

Rights! Please give me dueprocess! Start withthe trial and askAttorney Donnie Jarvis

Jr. of Sherman, Texas, Why he didn't address Blatant recorded trial errors in the Direct

Appeal? Ask him why he failed to notify me of its being affirmed, robbing meof a

P.D.R. Ask the County Judge why she failed to acknowledge petitioners FirstHabeas

Corpus and why she, (Judge Laurine Blake) ignored an order bythis very court. Ask
      why I did not get proper protection under the law and due process as prescribed in the

      14th Amendment to the United States Constitution.

             Recently I filed a motion for Leave to file an Out of Time Petition for

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

      was no reason given. An Out of Time P.D.R. is proper to rectify attorney error. It would

      also allow me to prove everything in this letter brief as it is all a matter of record.

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

      is the very definition of Obstruction of Justice. To do nothing is the very definition of

      Tyranny. I've been trying to get a review for fifteen (15) years! Just take a look.

      PLEASE!


                                                              Thank You.


                                                              Respectfully Submitted,



                                                              Walter G. Anderson #1092654


                                                              Eastham Unit, Lovelady, Texas




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Scanned Dec 14, 2010




                          IN THE COURT OF CRIMINAL APPEALS
                                                     OF TEXAS -•---";                       ^r
                                                     WR-61,082-01



                                        WALTER G. ANDERSON, Relator



                           DISTRICT CLERK OF FANNIN COUNTY, Respondent


                            ON APPLICATION FOR A WRIT OF MANDAMUS
                                        FROM FANNIN COUNTY




                  Per Curiam.


                                                      ORDER

                  This is an original application for writ ofmandamus. Relator contends that he has sent an

          application for writ of habeas corpus to the District Clerk of Fannin County and that more than

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

          record of the habeas corpus application having been filed in this Court, and no record of a timely

          filed Order Designating Issues.

                 It is this Court's opinion that additional informationis required before a decision can be




                                   ft pp-t ad? v               ft                                              t/-
Scanned Dec 14, 2010                    ;f|
               reached on the motion for leave to file the instant action. The Respondent, District Clerk of

               FanninCounty, is orderedto file withthis Court within thirty days a response by submitting on

               the recordsuch habeas corpus application, a copy of a timely filed orderdesignating issuesto be

               investigated, see Martin v. Hamlin, 25 S.W.3d 718 (Tex. Crim. App. 2000), orby stating the
               nature of any applications filed by Relator such that theyarenot filedpursuant to TEX. Code

               CRIM. Proc. art. 11.07, § 3, or that no applications by Relator have been filed. This application

   r           for writ of mandamus is held in abeyance pending compliance with this Qrder.            -       »


               DELIVERED: ( 'March 2, 2005
               DO NOT PUBLIS^




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Scanned Dec 14, 2010                 'm

                                                         NO.20118-A


            THE STATE OF TEXAS                                             IN THE DISTRICT CO


            vs.                                                §           336th JUDICIAL DI
                                                               §
            WALTER G. ANDERSON                                 §           FANNIN COUNTY, TEXAS              <>.



                                        THE STATE OF TEXAS ORIGINAL ANSWER
                                                  ANT> OKNERAL DENIAL



            TO THE HONORABLE JUDGE OF SAID COURT:

                       Comes now, The State ofTexas in the above entitled and numbered cause, and files this its
            Original Answer and General Denial herein, and in this connection would respectfully show the
            Court the following:


                                                              I.

                       The State of Texas (hereinafter the "State") denies all and singular, each and every
            allegation- contained in Applicant's Application for a Writ ofHabeas Corpus Seeking Relief From
            Final Felony Conviction Under Code ofCriminal Procedure, Article 11.07 and demands strict proof
            thereof.

                                                              H.

                   Further, the State would show that, as a matter oflaw, there are no controverted, previously
            unresolved issues offact material to the legality ofthe Applicant's confmement. ™-^*^~—***~"—

                                                          PRAYER

                    WHEREFORE/PREMISES CONSIDERED, the State prays that Applicant take nothing by
            reason of this Application for Writ ofHabeas Corpus and that it be denied and the State be
            discharged with its cost.




                                                                                                                   H3
                                              P<\ i                                                            15
Scanned Dec 14, 2010

                                                          Respectfully submitted,

   ^y




                                                             chard E.-Glaser
                                                          County and District Attorney ofFannin County
                                                          State Bar No. 08000000
                                                          101 E. Sam Raybum Drive, Suite 301
                                                          Bonham, Texas 75418
                                                          Phone (903) 583-7448
                                                          Fax (903)583-7682"^"^^ "":~~-•—-_--_:••
                                                          Attorney for State ofTexas




                                             CERTIFICATE OF SERVICE



                   On this the         day ofAugust, 2005,1 mailed a true copy of the above Original Answer
            and General Denial to Walter C. Anderson, Applicant, by regular mail.




                                                                                                               m
                                               «°1                                                        16
                                                         ill



             NOTICE THAT WRIT OVERRULED BY OPERATION OF LAW

                                 CAUSE #20118-A •&&•"••'

 EX PARTE:                         >          IN THE 336TH     JUDICIAL DISTRICT

WALTER GERALD ANDERSON              >          OF FANNIN COUNTY, TEXAS

    CLERK'S CERTIFICATE UNDER ART. 11.07, SEC. 2(c), V.A.C.C.P..

     This    is   to   certify   that   the    above    numbered   and   entitled

Petition-for Writ of-Habeas Corpus Poj^Gonvicjtip^Tl .07 -VAfrp-^'y
filed in this Court on the J^ day of November, 2004, arid that a

copy of said PeferEIon wast^erved^ upon the Distrjj&fe^Attorney's
office on the/7th day of July, 2005; that further, as clerk of this
court, 1 hereby^certify LhaL no orders have £>een entered by the
trial court within a 35-day limit from the filing of this petition,

and that therefore, pursuant to the provision of Art. 11.07, Sec.

2(c),   supra,    it   appears   that   the   trial    court's failure    to   act

within the time limits as prescribed by statute constitutes a

finding that there are no previously unresolved facts material to

the legality of the applicant's confinement,                and therefore,     it

would appear that the application for Writ of Habeas Corpus has
been overruled by opera£irdn~~of law."

So certified th^s 26th day of August, 2005.
                                    NANOTYQI
                                    DlsrJfict Clerk



                                                           f^cJL^r^rp Clerk




                                                                                47
Case 4:06-cv-00204-RC-/1" -\ Document 38-1 Filed 01/23/12 r       ie 1 of 62 PagelD #: 261


                                                                                         1



   1
                                  REPORTER'S        RECORD
                                    VOLUME 1        OF 1
   2
                           TRIAL COURT CAUSE NO.            2 0118-B

   3
         STATE OF TEXAS                         ) IN THE DISTRICT COURT
   4
                    Plaintiff,                  )
   5
         vs_                                    ) FANNIN COUNTY, TEXAS               .
   6
         WALTER GERALD ANDERSON                 )
   7
                    Defendant.                 ) 336TH JUDICIAL DISTRICT
                                                                                             S


   8


   9


  10


  11

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

                                                                                             I

  13
                               WRIT OF HABEAS            CORPUS

                                  ******************
  14


  15


  16


  17                                                                                         |


  18                                                                                         |

  19


  20
               On the 12th day of November, 2010, the following

  21
         proceedings came on to be heard in the above-entitled
  22
         and numbered cause before the Honorable Laurine Blake,

  23
         Judge Presiding, held in Bonham, Fannin County, Texas:
  24
               Proceedings reported by stenographic method.
  25



                              Charla Reamy, CSR, TCRR ApQfflilX y
                                     (903) 583-2863                  M         / n^
Case 4:06-cv-00204-RC-/'   <> Document 38-1 Filed 01/23/12 n ie 2 of 62 PagelD #: 262




                                   APPEARANCES
   l


   2
         Mr. James L. Moss
   3     SBOT 24049592
         Fannin County Criminal District
   4     Attorney's Office
         101 East Sam Rayburn Drive
   5     Bonham, Texas  75418
         (903)    583-7448
   6


   7     ATTORNEY FOR THE STATE OF TEXAS

   8                -   AND    -


   9
         Mr.    David K.      Haynes
 10      SBOT    09285500
         Attorney at Law
 11      2600 W. Eldorado Pkwy. Suite 220
         McKinney,-Texas  75070
 12      (972)    542-1793

 13
         ATTORNEY FOR THE DEFENDANT
 14


 15


 16


 17


 18


 19


  20


  21


  22


  23


  24


  25




                                   Charla Reamy,   CSR,   TCRR
                                       (903)   583-2863
Case 4:06-cv-00204-RC-/^: \ Document 38-1 Filed 01/23/12 r ie 3 of 62 PagelD#: 263




                                         INDEX
   l

                                         VOLUME   1
   2


   3
                                   WRIT OF HABEAS     CORPUS

                                                                  Page   Vol
   4


   5    NOVEMBER     12,   2 010

   6
         Opening statement by Mr. Haynes                           6      1
   7     Opening statement by Mr. Moss                             8      1
   8    DEFENDANT'S WITNESSES
                                           Direct         Cross

   9
        Donnie Jarvis-                    11,25           20,26
  10
        Darin Barnett                     27,39,44        35
        Walter Anderson                   46              52

  11     Both sides rest and close                                 54     1
         Closing statement by Mr. Haynes                           55     1
  12
         Closing statement by Mr. Moss                             56     1
  13     Court 's Ruling                                           59     1
  14     Court Reporter's Certificate                              62     1
  15


  16


  17


  18


  19


  20


  21


  2 2


  23


  24


  25
                              •Charla Reamy,      CSR,    TCRR
                                       (903)   583-2863
Case 4:06-cv-00204-RC-A' ^   Document 38-1 Filed 01/23/12 r qe 4 of 62 PagelD#: 264




   l
                                     EXHIBIT    INDEX


   2                                      (None.)

   3


   4


   5


   6


   7


   8


   9


 10


 11


 12


 13


 14


 15


 16


 17


 18


 19


 20


 21


 22


 23


 24


 25




                               Charla Reamy,     CSR,   TCRR
                                     (903)   583-2863
Case 4:06-cv-00204-RC-/^ \ Document 38-1 Filed 01/23/12 ^ ie 5 of 62 PagelD #: 265




                                 PROCEEDINGS
   l


   2
                           THE COURT:        We're on the record in the

   3
         State of Texas versus Walter Anderson, Cause Number

   4
         20118-B.     And, sir, you're Walter Anderson?

   5
                           THE DEFENDANT:        Yes,   ma'am.

   6
                           THE COURT:        Let's have you stand and

   7
         we'll have you be sworn in.             If you'll stand and raise
   8     your right hand.

   9
                           (The Defendant was sworn by the Court.)

  10
                           THE COURT:        Okay.   You may be seated.

  11
         Okay.    Do we have any witnesses here that the parties
  12     would like to have sworn?

  13
                           MR.    MOSS:   Yes,   Judge.

  14
                           MR. HAYNES:        Mr. Jarvis, Judge.

  15
                           THE COURT:        Okay.   We'll have each of you

  16     raise your right hand.

  17
                           (The witnesses were sworn by the Court.)
  18
                           THE COURT:        Okay.   If you'll state your

  19     name,   please.

  20
                           MR.    BARNETT:     Gary Barnett.

  21
                           THE COURT:        Say the last one.

  22
                           MR.    BARNETT:     Barnett.

  23
                           THE COURT:        Can you spell --

  24
                           MR. BARNETT:        B-a-r-n-e-t-t.

  25
                           THE COURT:        Thank you, sir.



                                 Charla Reamy, CSR, TCRR
                                      (903) 583-2863
Case 4:06-cv-00204-RC-r < Document 38-1 Filed 01/23/12 r ie 6 of 62 PagelD #: 266




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


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

   3
                          THE COURT:       Thank you.    Does either side

   4    desire to invoke the rule?

   5
                          MR. HAYNES:       We are going to invoke the

   6    rule if the Court please.

   7
                          THE COURT:        Okay.   The rule's going to

   8
        be invoked, so, gentlemen, we'll need both of you
   9
        outside until you're called to testify.               Please

  10
        understand that part of the rule means you cannot

  11
        discuss your testimony with anyone while you're
  12
        waiting.     Additionally, you may not listen to anyone
  13
         else's testimony, which includes, nobody can come out
  14
        and tell you what somebody else is saying. That's why
  15
        we have you outside the courtroom. Okay? Do y'all
  16
        have any questions? There are. different punishments
  17
         that could occur including contempt of the court if
  18
         you don't follow the rules.           So, it's serious.
  19
                          All right.       Gentlemen, if you'll please

  20
         step outside, we will have you called in when it's
  21
         your turn to-testify. Thank you for being here.
  22
                           (Witnesses exit the courtroom.)

  23
                          THE COURT:       Okay.    We will hear the

  24
         requests of the parties at this time.
  25
                          MR. HAYNES:       Your Honor, this is a --


                                Charla Reamy, CSR, TCRR
                                     (903) 583-2863
Case 4:06-cv-00204-RC-/-   \ Document 38-1 Filed 01/23/12 ^ ie 7 of 62 PagelD #: 267




   l
         styled as a motion for new trial filed by the
   2
         defendant, Mr. Anderson, on the ground of newly
   3
         discovered evidence.          Of course, it's filed outside of
   4
         what the rules provide for for filing a motion for new
   5
         trial, but the Court, I understand, is treating this
   6     matter as a writ of habeas corpus.

   7
                            We expect that the evidence is going to

   8
         demonstrate that key information about the State's

   9
         complaining witness was withheld at the time of trial,
  10
         and that that prevented the jury from finding out that
  11
         the complaining witness had an extensive prior
  12
         criminal record including a conviction for sexual
  13
         abuse in the -- in Essex County, New York, that

  14
         occurred on the 13th of April 2000, just a little

  15
         while before the case was tried.                That prevented the
  16
         defendant's trial counsel from making a vigorous

  17
         cross-examination of the complaining witness, which,
  18
         if that had been able to have been done -- the case

  19
         basically turned on the believability of the
  20
         complaining witness.           I don't think the Court's going
  21
         to be able to conclude beyond a reasonable doubt that
  22
         if the jury had heard that about the complaining
  23
         witness, the verdict would have been the same.                   And
  24
         that's what we think the evidence is going to

  25
         demonstrate to you this afternoon.



                               Charla Reamy,      CSR,    TCRR
                                      (903)   583-2863
Case 4:06-cv-00204-RC-/" \ Document 38-1 Filed 01/23/12 r ie 8 of 62 PagelD #: 268




   l
                          THE COURT:        Thank you,    Mr.   Haynes.

   2
                          Okay.    Let's hear from the State.

   3
                          MR. MOSS:      Your Honor, initially the

   4
         State would agree that this case has been filed as a

   5
        motion for new trial based on newly discovered

   6
         evidence and that that motion has been filed outside
   7
         of the statutory guidelines and, as such, should be

   8     denied.

   9
                          Additionally, the State would also ask

 10
         the Court to take judicial notice of its file.                 You

 11
        will see that Mr. Anderson has previously filed a writ
 12     of habeas corpus that was addressed by the court of
 13
         criminal appeals.        In that writ of habeas corpus, he
 14      complained, among other things, about ineffective
 15
         assistance at trial and his request for relief was

 16      denied.


 17
                          The State plans to show the Court that

 18
         back when this case was tried, it was the district

 19
         attorney's office practice at that time to provide a
 20
         criminal -- full criminal history of all witnesses

 21
         that planned to testify.           The prosecutor that
 22
         prosecuted the case filed an affidavit in this court
 23
         -- Billy Gant -- indicating that he had no specific
 24      recollection about the case but that it was the

 25
         process that the prosecutor's office followed at that

                             Charla Reamy,      CSR,   TCRR
                                    (903)   583-2863
Case 4:06-cv-00204-RC-A    1 Document 38-1 Filed 01/23/12 *~ qe 9 of 62 PagelD #: 269




   l
        time and that he cannot think of any reason why

   2
        Mr. Barnett's criminal history would have been

   3    withheld.


   4
                            Additionally, Mr. Gant indicated that he

   5
        reviewed the record, and Mr. Anderson's trial counsel
   6
        Donnie Jarvis, in fact, questioned the alleged -- the
   7
        victim, Mr. Darin Barnett, about his previous

   8
         conviction, although -- the State will admit --

   9
         inartfully.       Mr. Barnett -- the State will call
  10
        Mr. Barnett.         Mr. Barnett will indicate that he was,

  11
         in fact, convicted in the year_oj_J^00_7£ojr__a sexual
  12
         offense.     It was a felony.          He was sentenced to a year

  13
         in county jail in the State of New York and that he
  14
         was required.to register as a sex offender and he has
  15
         been registered in the State of Texas since the time
  16
         he moved here in 2001 when he was released from jail
  17     in Essex County, New York.

  18
                            Mr. Barnett will also_^z_won1 d also___

  19
         testify that the lawyer for the defendant in that_
  20
         case, Donnie Jarvis, visited with him prior ^to^trial^
  21
         that they talked about his conviction for a

  22
         sexually-related matter.            Mr. Barnett admitted^           -him.


  23
         that he was, in fact, a sex offender and required to
  24
         register.        And so, at least at that point when
  25
         Mr. Jarvis had met with Mr. Barnett, that he was on


                                Charla Reamy, CSR, TCRR
                                     (903) 583-2863
Case 4:06-cv-00204-RC-£r' x Document 38-1 Filed 01/23/12 P'-e 10 of 62 PagelD #: 270


                                                                                10




   l
         notice that Mr. Barnett had some criminal history that
   2
         needed to be investigated.            And^Mr^jJarvis will
   3
         testify that he ygmprnhered prosecuting -- or,
   4
        .remembers representing Mr. Anderson. He cannot recall
   5
         specifically if a criminal history was provided to him
    6
         or not.     He has reviewed the record.            He remembers
    7
         meeting with Mr. Barnett, he remembers talking to him
    8
         somewhat about his criminal history but he doesn't
    9
         have any specific recollection, and that he remembers
  10
         questioning Mr. Barnett on the stand about his
  11     criminal conviction.

  12
                           And then the State would tender to the

  13
         Court a trial transcript -- I don't know if the Court
  14     has it -- of the trial at large.

  15
                           MR. HAYNES:       We certainly don't have any

  16
          objection to that and we would want the Court to
  17      review the entire transcript.

  18
                           THE COURT:        That will be made part of the

  19      record.

  20
                            MR. MOSS:     And I would just ask the Court

   21
          if you had the affidavit of Billy R. Gant.                 Should be
   22     file marked November 10, 2010.

   23
                            THE COURT:       No, I'm not showing that

   24
          document to be filed.         Wait.     It looks like it got put
   25
          in one of the files but not the one I was operating


                               Charla Reamy,      CSR,   TCRR
                                     (903)    583-2863
Case 4:06-cv-00204-RC-A" N Document 38-1 Filed 01/23/12 P ^e 11 of 62 PagelD #: 271


                                                                               11




   l     under.


   2
                           MR. MOSS:        Yeah, it won't -- shouldn't be

   3
         in the writ file.          It should be in the trial file.           I

   4     think that's the confusion.

   5                       THE    COURT:     Yes.


   6
                           MR. MOSS:        The files have been used

   7     interchangeably.

   8
                           THE COURT:        Yes.    This is in Cause Number

   9
         20118, is where the affidavit was located.                And that
  10
         was from Billy Gant.          Okay.    Anything further?

  11
                           MR. MOSS:        Not at this time, Your Honor.

  12
                           THE COURT:        Okay.    Mr.   Haynes, you may

  13     call your first witness.

  14
                           MR. HAYNES:        We call Donnie Jarvis.

  15
                           THE COURT:         Sir, if you'd come forward

  16
         and have a seat on the witness stand, please.

  17
                           Okay.     You may proceed.

  18
                           MR.    HAYNES:     Thank you,     Your Honor.

                                     DONNIE    JARVIS,
  19


  20
         having been first duly sworn, testified as follows:
                                   DIRECT EXAMINATION
  21


  22     BY MR.     HAYNES:


  23           Q.     What's your name, sir?

  24           A.     Donnie Jarvis.

  25
               Q.     What city do you live in, Mr. Jarvis?


                                 Charla Reamy, CSR, TCRR
                                      (903) 583-2863
Case 4:06-cv-00204-RC-^ N Document 38-1 Filed 01/23/12    P ^e 12 of 62 PagelD #: 272


                                                                                12



   l           A.   Sherman,    Texas.


   2           Q.   And how long have you lived in Sherman?

   3
              A.    All my life basically, except for when I went

   4     to law school      at Tech.

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

   6          A.    Forty-two.

   7
              Q.    And on March 20, 2002, were you a licensed

   8     attorney in the state of Texas?

   9          A.    Yes.


  10          Q.    Are you a licensed attorney in the state of

  11     Texas   now?


  12          A.    Yes.


  13          Q.    Did you represent the defendant in this case,

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

  15          A.    Yes.


  16          Q.    Were you hired or were you appointed?

  17          A.    Appointed.

  18          Q.    When were you first appointed?

  19          A.    I do not recall.

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

  21          A.    I don't remember the exact date.

  22
              Q.    If you saw the transcript, would it refresh
  23     your memory?

  24          A.    Sure.


  25
                           MR. HAYNES:     May I approach the witness,



                             Charla Reamy,     CSR,      TCRR
                                   (903)   583-2863
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   1     Your    Honor?


   2                         THE   COURT:      Yes,   sir.

   3            Q.     (By Mr. Haynes)         Mr. Jarvis, I'm just going
   4     to show you the first page of the first volume of the
   5     transcript.         When you look at that, can that -- does
   6     that refresh your memory about when the trial might

   7     have    been?


   8            A.    Yes.


   9            Q.    And when was it?

  10            A.     20th of March,        2002.

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

  12     2002.       How long had you been representing Mr. Anderson

  13     before the trial          began?

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

  15     for my file and I could not find his file.

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

  17     have any idea?

  18            A.     I don't     honestly.

  19
                Q.    No idea at all.          All right.       Prior to the

  20     beginning of the trial, did you confer with the
  21     prosecutor?

  22            A.     I'm sure     I did.

  23            Q.    Who was the prosecutor?

  24
                A.     I want to think that it was Billy Gant.

  25
                Q.    All right.       Did you ask him for what we


                                 Charla Reamy,        CSR,   TCRR
                                      (903)    583-2863
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   1
         lawyers call the discovery information about the case?
   2
                A.    I would think I would have.              I can't say for

   3
         sure, but I would have told -- I think that was a

   4     standard court        rule   --

   5            Q.   And did you --

   6            A.    -- it be provided.

   7
                Q.    I'm sorry.       I didn't mean to interrupt you.

   8
         Did you receive discovery information from Mr. Gant?
   9
                A.    I do not -- I received some discovery, yes.

  10
                Q.    Okay.     Did it -- did you ask Mr. Gant for

  11
         information about the prior criminal record of any of
  12     his   witnesses?


  13
                A.    I don't recall asking that specifically, but

  14
         that's what I was referring to a moment ago actually.
  15
         I think there was court rules stating it was supposed

  16     to be provided prior to voir dire.

  17
                Q.    All right.       And, in particular, did you ask
  18
         him about the prior criminal record of his witness,

  19     Darin Barnett?


  20
                A.    I just don't remember if I did or didn't,

  21     honestly.

  22            Q.    All right.

  23
                              MR. HAYNES:     Approach the witness again,

  24     Your   Honor?


  25
                              THE   COURT:   You may.




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                                     (903) 583-2863
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   1
               q.    (By Mr. Haynes)         All right.     I'm going to
   2
         direct your attention to page 30 of the trial record
   3
         and, in particular, your response to a question from
   4
         the Court at the bottom of the page.               I understand
   5
         that this trial was eight years ago now.                There's no

   6
         way you remember verbatim what was said.                But when you
   7
         look at that document that I pointed out to you, does
    8
         that refresh your memory about a colloquy between you

    9
         and the trial court with regard to the information you
  10
         had been provided about the prior criminal record of
  11     the witnesses?

  12           A.    Yes,    it does.

  13
               Q.    What did you tell the judge at that time?
  14
               A.    I told the judge I didn't receive the

  15
         criminal history prior to the picking of the jury.
  16
               Q.    All right.      And understanding you can't

  17
          remember it now, surely at that time it was very fresh
  18
          in your1 mind about whether you had or had not received
   19     the information.

  20           A.    True.


   21
               Q.    All right.      And you told the Court you

   22     hadn't.    Right?

   23          A.    Right.

   24
               Q.    And you wouldn't have told the Court you

   25     hadn't if you really had?


                               Charla Reamy,     CSR,   TCRR
                                     (903)   583-2863
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    l          A.     No,    I would not have.

    2
                Q.    All right.       And you have looked for your file
    3    and you don't have it.            Right?

   4           A.     Agreed.

    5
                Q.    So, there's no way to check now to see what

    6    was   in the   file.

    7          A.     True.


    8
                Q.    And even if you had the file, it would be
    9
         hard to say what was there now was there in March of
  10     2002 .


  11           A.     Probably a fair statement.

  12            Q.    All right.       If you had known about

  13
         Mr. Barnett's criminal record, would have you pointed
  14      it out to the jury?

  15           A.     Yes.


  16
                Q.    You'd agree with me that that would have

  17      reflected badly on his credibility?

  18            A .   True .


  19
                Q.    Do you know what his criminal record was at
  20
          that -- as it existed at that time, March 2002?

  21
                A.    I've had a chance to look through this and

  22
          I'd forgotten this part of it, but, if I recall, I
  23
          asked him some questions in relation to him having
  24
          some criminal history in New York or something.                     If I
  25      remember correctly.



                                Charla Reamy,       CSR,   TCRR
                                       (903)   583-2863
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   l
                Q.   The document before you, just switch over to

   2
         page 47 and 48.          That's the point at which you're
   3
         asking him about his prior criminal record in New
   4     York; is that correct?

   5            A.   That's    correct.

   6
                Q.   And you asked him if it was true that he'd
   7
         been convicted of a sexual assault in New York.
   8     Right?

   9            A.   Correct.


  10
                Q.   His answer was he had not?

  11            A.   Right.

  12
                Q.   And you didn't have documents that would show
  13     that    he had.

  14            A.   True.


  15
                Q.   Because, if you had, you would have shown
  16     them to him.        Right?

  17            A.   Agreed.

  18
                Q.   All right.         And if you didn't have those
  19
         documents, it was because the district attorney didn't
  20     give them to you.

  21            A.   I   agree.


  22
                Q.   All right. .And he denied a lot of your
  23
         questions about his prior criminal record; is that
  24     true?


  25            A,   That's     true.




                                Charla Reamy,      CSR,    TCRR
                                        (903)   583-2863
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    l
                Q.     And you didn't have anything in writing --
  . 2           A.     Agree.

    3
                Q.     -- to impeach him with.

   4            A.     Yes.


    5
                Q.     Did you obtain any information from any other
    6
         source -- not the district attorney -- about

    7    Mr. Barnett's prior criminal record?

    8
                A.     I -- I think -- and I'm just going off what I

    9
         remember because I don't remember for sure that this
  10
         is correct.          I know that I went out there to speak
  11
         with him where he was working and I want to think that
  12
         I was -- I talked to maybe another employee there or

  13
         somebody and got some rumor-information type of thing,
  14
         which is why I think that this goes on the way it does
  15
         because I'd heard some rumors that there might be
  16     something.

  17
                Q.     You asked -- you asked Barnett about whether
  18
         he was a drug user; is that correct?

  19            A.     Correct.


  20
                Q.     Did you have any direct information from
  21
         Barnett himself that he was a drug user?

  22
                A.     I don't think he told me directly.            I don't

  23     know    for   sure.


  24
                Q.     Did you ever talk to Barnett, himself,
  25
         personally before you talked to him on the witness

                                 Charla Reamy,   CSR,   TCRR
                                     (903)   583-2863
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    1    stand?


   2
                A.    I know I went out there to talk to him.                   I
    3
         don't remember if I actually got to talk to him.                       I
    4
         don't know if I talked to his boss and/or him.                     I
    5    honestly don't remember.

    6
                Q.    So, whatever you used to cross-examine him
    7
         with that we see there on page 48 -- 47, 48, 49,
    8
          around there of the record -- was what you had picked
    9
         up when you went to his place of employment and talked
  10
          to him or maybe his coworkers.

  11
                A.    Or rumors or something.             I think it came from
  12      investigating the case.

  13
                Q.    All right.        So -- and, at this point, at this
   14
          time, that's all you can tell us.                 You don't have any
   15     documents about it.

   16           A.     I    don't.


   17
                Q.    Thank you, Mr. Jarvis.
                              MR. HAYNES:       No further questions.           Pass
   18


   19     the   witness.


   20
                              MR. MOSS:       May I approach?

                              THE    COURT:     Yes.
   21

                                      CROSS-EXAMINATION
   22


   23     BY MR.     MOSS:

   24
                Q.     Mr. Jarvis, you cannot remember if you went
   25     up and spoke to him or not?


                                 Charla Reamy,         CSR, TCRR
                                        (903)    583-2863
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    l
               A.    I don't remember for sure.                  I know that I

   2
         intended to.        Whether I actually got to talk to him, I
   3     just don't remember.

   4
               Q.    Okay.     I'm going to direct your attention to
   5     page 43, Line 11.

    6          A.    Okay.

    7
               Q.    If you'd just take a look at that.

    8          A.    Yeah.     Okay.

    9
               Q.    Okay.     So, reading that, does that refresh
  10     your memory?

  11           A.    It    does.


  12
               Q.    Did you get to go speak with Mr. Barnett in
  13     preparing for this trial?

  14
               A.    I did.        Said I talked to him in January of
  15     this year.

  16           Q.    The case was tried in?
                                           ?
                                2,0<b-2-
  17           A.    March.

  18
               Q.    You went and talked to him about two months
  19     before trial-        Right?                                          . .
                                                              15 V>«_ ^«-t>pOS<u)l Iq Spdf^,
  20
               A.    (Moves head up and down.)   nor J*st ftod ?
   21
               Q.    You had at least some information that the
   22
         victim in this case had been convicted or prosecuted
   23
         for a sexual offense out of another state. Correct?
   24
               A.    I had -- I guess I had gleaned some

   25     information,      yes.




                                Charla Reamy,         CSR,    TCRR
                                           (903)   583-2863
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   l
               Q.    You knew it was New York.          Right?

   2
               A.    I knew that he was from New York.

   3
              Q. Okay. Did you know that he was registered as
   4
         a sex offender in the state of Texas in 2002 when the
   5     case was tried?

   6
               A.    I did not know that.

    7
               Q.    Okay.    Did you know that -- did you know in
    8
         2002 -- did you have the ability to get on the
    9    internet    in 2002?

  10           A.    I probably did.

  11
              Q. Okay. Did you know that in 2002 -- well,
  12
         since 1996, the State of Texas has been posting those
  13
         individuals that were required to register in the
  14
         state of Texas as sex offenders on a website
  15
         administered by the Texas Department of Public Safety?
  16
             A. Are you asking do I know that now or did I
   17    know that then?

   18
               q.     Well, do you know that now?

   19
               A.     I do know that now.

   20
                Q.    In 2002, were you aware that sex offenders
   21
          had to register and that DPS was posting that
   22
          registration online at a database that the public
   23     could search?

   24
                A.    I don't know that I knew that or not,

   25
          honestly.      I don't honestly know.


                               Charla Reamy,     CSR, TCRR
                                     (903)   583-2863
Case 4:06-cv-00204-RC-£/     Document 38-1 Filed 01/23/12 P   * 23 of 62 PagelD #: 283


                                                                                 23




   l
         common for them to provide that information generally?
   2
                Q.   Generally, and then in this specific case, do
   3
         you think if an issue like that came up, you would
   4
         expect them to then provide that information?
   5
                A.   Well, I would expect it.

   6
                Q.   Okay.     But do you have any specific
   7
         recollection in this particular case?

   8            A.   No.


   9
                Q.   Okay.     All right.      What specifically do you
  10
         remember about this case from trial trying it?

  11
                A.   I don't remember a whole lot about it.                 Some

  12
         -- some -- a little bit of discussion about --

  13
         settlement discussion.           I talked to the jury -- I

  14
         remember talking to the jury after the trial and some
  15
         of their remarks and so forth, but, really, I don't
  16
         remember a whole lot about the trial, itself.

  17
                Q.   There was a strategy discussed between you

  18
         and Mr. Anderson about calling his son who could have
  19
         rebutted some the victim's testimony.                Correct?

  20            A.   Agreed,     yes.

  21
                Q.   Okay.     What was his son's expected testimony
  22     to    be?


  23
                A.   Of course it was our thought that the son

  24
         could -- that his testimony would go along with
  25     Mr.    Anderson's.




                                Charla Reamy, CSR, TCRR
                                     (903) 583-2863
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                                                                               22




   l
               Q.    All right.      Having that information then, at

   2
         least there was a concern in your mind that the

   3
         defendant -- or, the victim had been convicted of this
   4
         offense, do you know if you ever specifically asked
   5
         the prosecutor in this case for a copy of the -- for a
   6     copy of the defendant's criminal history?
   7
               A.    I do not remember one way or the other,

   8     honestly.

   9
               Q.    Okay.    And you worked with Billy Gant and
  10     Myles Porter for four years.. Correct?
  11           A.    True.


  12           Q.    Pretty easy to work with?

  13           A.    Yeah.

  14
               Q.    Did you ever feel like they were withholding
  15     anything from you?

  16           A.    No.


  17
               Q.    Okay.    Do you think that, at least in your
  18
         experience and experience practicing in this court, if
  19
         you were to tell the judge prior to -- prior to voir
  20
         dire or prior to the trial starting, Judge, I've
  21
         gotten all the discovery but I haven't got the
  22
         criminal histories of the witnesses, do you think it
  23
         would be common in the course of practicing with them
  24
         that they would have then provided information to you?
  25
               A.    I do -- are you asking me do I think it was


                               Charla Reamy, CSR, TCRR
                                    (903) 583-2863
Case 4:06-cv-00204-RC-A^        Document 38-1 Filed 01/23/12 P   •» 24 of 62 PagelD #: 284

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   1           Q.      Okay.

   2
               A.      They were in the car together.

   3
               Q.      They were in the car together.               And,
   4
         essentially, the facts of this case were, Mr. Barnett
   5
         was a taxicab driver, and he alleged that Mr.

   6
         Anderson, his son, and a third individual entered the
   7
         vehicle, held him at gunpoint, and demanded that he
   8     drive them to Utah.

   9           A.      Right.

  10
               Q.      And then they traveled for a distance and
  11
         Mr. Barnett convinced Mr. Anderson that, if we turn

  12
         back around, I can take you to a place and give you a

  13
         car and let you go and you don't have to take me to
  14
         Utah.        That was the bare bones facts of it.                 Right?
  15           A.      Right.

  16
               Q.      Okay.      Did you -- did you ever consider
  17
         conducting an independent search for the defendant's
  18     sex-offender registration?

  19           A.      Not that I recall.

  20
                 Q.     Okay.      But that information was out there
  21
         you know now that that information was out there and
  22
         available to you as a defense lawyer with -- armed
  23
         with the information that he may or may not be a sex
  24     offender in New York.              Correct?

  25
                 A.     I agree the information is out there now.


                                   Charla Reamy,     CSR,   TCRR
                                         (903)   583-2863
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                                                                                   25




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

   2
                            MR. MOSS:       All right.      Pass the witness.
                                   REDIRECT EXAMINATION
   3


   4     BY MR.     HAYNES:

   5
               Q.     All right.        Well, I don't want to beat this
   6
         horse too bad, but, again, when you look at the bottom
   7
         of page 30, what you told the trial judge at the time
   8
         was that not only did you not receive the criminal
   9
         history, but you didn't receive the witness list
  10     before the jury selected.

  11
               A.      Agreed.

  12
               Q.      And that, surely, was your accurate

  13
         recollection at the time the case was tried.

  14
               A.      Yeah.      I wouldn't have told the judge that if
  15     it   wasn't    true.


  16
                            MR. HAYNES:         Thank you, Mr. Jarvis.
                                    RECROSS-EXAMINATION
  17


  18     BY MR.     MOSS:


  19
               Q.      And knew Mr. Barnett was going to testify at
  20
         the trial, though.            Right?    You didn't need a witness
  21
         list to know that he was going to be there.

  22
               A.      Well, I mean, I didn't know one way or

  23
         another for sure. You know, I didn't know on the day
  24
         of trial they would come to -- come to some agreement
  25
         or dismiss the case. You never know what's going to


                                  Charla Reamy, CSR, TCRR
                                        (903)   583-2863
Case 4:06-cv-00204-RC-A'       Document 38-1 Filed 01/23/12 P   ^ 26 of 62 PagelD #: 286


                                                                                   26



    l    happen until you get there.

   2
                Q.     Right.      But, I mean, if the State was going
   3
         to prove that part -- this particular case -- this
   4
         particular indictment with the facts involved, the
   5
         essential witness -- I mean, they could not prove the
    6    case if Mr. Barnett was there (sic).                   Right?

   7            A.     I think that's right.

   8
                Q.     Okay.     All right.       Nothing further.

    9
                            MR. HAYNES:         Nothing further of this

  10     witness.


  11
                            THE COURT:          You may step down.       Thank

  12
         you.        If you will just wait outside the courtroom for
  13     us,    sir.

  14
                            THE WITNESS:         No problem, Your Honor.

  15     You want this back up here?

  16
                            THE COURT:          Yes, please, sir.        Thank you

  17
                            You may call your next witness, Mr.

  18     Haynes.

  19
                            MR.    HAYNES:       Darin Barnett.

  20
                               THE COURT:       Sir, if you'll come forward

  21
          and have a seat over here on the witness stand,

  22
          please. Okay. If you will just speak into that
  23
          microphone. Go ahead and move that microphone into
  24
          your mouth -- right in front of your mouth so we can
  25      hear you.




                                  Charla Reamy,     CSR,    TCRR
                                        (903)    583-2863
Case 4:06-cv-00204-RC-A''     Document 38-1 Filed 01/23/12 P     ^ 27 of 62 PagelD #: 287


                                                                                    27



   l
                              You may proceed,        Mr.    Haynes.

   2                                      DARIN BARNETT,


   3     having been first duly sworn, testified as follows
   4
                                     DIRECT EXAMINATION


   5     BY   MR.   HAYNES:


   6           Q.     What's your name,           sir?

   7           A,     Darin Ray Barnett.

   8           Q.     And what's your date of birth?

   9           A.     3/12/67.

  10                  What town do you live in, sir'

  11           A.     Bonham.


  12           Q.    How long have you lived in Bonham?

  13           A.    A   while.


  14           Q.
                      Can you give me any better idea than that --

  15           A.    The     last    --


  16           Q.     -- what year you moved here?

  17           A.     2001.     Maybe.       Somewhere around there.

  18           Q-
                     All right.           Now, you are, of course, the very

  19
         same Darin Ray Barnett who is the complaining witness
  20     in the case now on trial, the State against Walter

  21     Gerald Anderson;           is that correct?

  22           A.     Yes,    sir.

  23
               Q.     Mr. Barnett, you are the same Darin Barnett

  24
         who pleaded guilty on April 13, 2000, to the offense
  25
         of sexual abuse in the supreme court for Essex County,


                                Charla Reamy,        CSR,    TCRR
                                          (903)   583-2863
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                                                                                  28




   l     New York;     is that right?

   2
               A.     I don't know.       I don't know what --

   3           Q.     You don't know?

   4
               A.     I don't know what I pleaded to, no.                I don't

   5     know.


   6           Q.     All right.

   7
                             MR. HAYNES:       May I approach the witness,

   8     Your Honor?


   9
                             THE COURT:       Yes,   sir.

  10
               Q.     (By Mr. Haynes)         All right, Mr. Barnett, I'm
  11
         going to show you a document.               Look that document
  12     over.



  13           A.     Yes,   sir.

  14
                 Q.   Does this document pertain to you?

  15
                 A.   It says it does, yes, sir.

  16             Q.   Does it?

  17
                 A.   Darin Barnett.       Yes, sir.

  18
                 q.   Well, I mean, you were in court when this
  19     happened.         Right?

  20             A.   Right.

  21
                 Q.   And you got sentenced to a year in jail in
  22     New York.         Right?

  23             A.   Right.

   24
                 Q.   So, you haven't forgotten this, Mr. Barnett,
   25     have you?



                                Charla Reamy, CSR,          TCRR
                                      (903)    583-2863
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   1
               A.      No.      I just didn't know what I got convicted
   2     of


   3
               Q.      All right.        But this is you; is that correct?
   4           A.      Yes,     sir.

   5
             Q. And you did plead guilty in New York on the
   6
         13th of April 2000, you did receive a conviction for
   7
         sexual abuse, and you were sentenced to one year in
    8    jail.        Right?

    9          A.       Yes,    sir.

  10
               Q.       You served in jail, you remember being there.
  11     Right?

  12           A        Yes,    sir.

  13             Q
                        Okay.     What was the conduct that caused you
  14
          -- what did you do to cause this conviction to happen?
  15
                 A.     I don't understand where you're going.

  16
                 Q.     Well, I mean, the State of New York accused
  17
          you of a crime, you pleaded guilty to it, you served a
  18
          jail sentence. So, tell the Court what you did that
  19
          resulted in that legal proceeding taking place.

  20             A.     I don't know --

   21
                                THE WITNESS:      What does he want?            Ma'am,

   22
          I don't -- I don't understand what he wants.                      I     mean
   23


   24
                                THE COURT:       Then just let him know if you

   25
          don't understand the question.


                                   Charla Reamy,     CSR,    TCRR
                                         (903)    583-2863
Case 4:06-cv-00204-RC-A'"             Document 38-1 Filed 01/23/12 P   ^ 30 of 62 PagelD #: 290

                          —                                                               3 0




    1            A.
                               (By the Witness)          I don't understand what you
    2    want    .




    3                Q.
                       (By Mr. Haynes) All right. Well, you did
    4     some   thi
                     ng that caused you to go to court in New York,
    5     plea d g uilty,              and take a year in jail.          Right?
    6                A.       Right.

    7                Q.       What was     it?

    8                A.
                              I don't -- I don't know what you want.

    9                Q-
                              I want you to tell me what you did that

  10      caused          you to spend the year in jail in New York.
  11                 A.       Wrong place at the wrong time.

  12                 Q.
                              Okay.      More specifically.

  13                 A.       Well,     I don't know.

  14                 Q.
                              What place were you at?

   15                A.       Essex County.


   16
                                      THE WITNESS:        I don't know what he's

   17     tryi-ng to get from me.

   18                Q.
                               (By Mr. Haynes)           What was the wrong time?
   19     Why    was          it   the wrong time?

   20                A.        Wrong time in my life, I guess.

   21                Q-
                               All right.        Who was the other person who was
   22     involved in this other than you?

   23                A.        I don't remember her name.

   24                Q.
                               Okay.     It was a woman, though.           Right?
   25                A.        Right.



                                         Charla Reamy,       CSR, TCRR
                                                 (903)   583-2863
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                                                                                    31




   l
               Q.       What did you do to her?

   2
               A.       I didn't do nothing to her.

   3
               Q.       All right.     So, they put you in jail for a
   4     year for nothing.
               A.       It was a plea agreement.         I •     I   don't   know
   5


   6     how to answer this.

   7
               Q.       All right.     So, your best -- the best thing
   8
         you can tell the judge is, you have no idea why or
   9
         what you did that caused you to be in this legal
  10
         predicament you were in in the State of New York.
  11
               A.       I don't understand why you're -- I'm on trial
  12     here for.something that --

  13
               Q.       Sir, you're not on trial.          You've already --
  14
         you've pleaded guilty and you've served your sentence.
  15
         No one can do anything else to you.                   But I want to
  16
         find out why you were in that legal pickle in New York
  17
         and I want you to tell the judge what caused it.
  18     That's     all.

  19
               A.       Just wrong place, wrong time, with the wrong

  20     woman,     I   guess.

  21
               Q.       All right.     And you can't tell us any more

  22      than that?


   23          A.       No.


   24          Q.       Or you won't.

   25
               A.       I -- I just -- I don't know where you're


                                 Charla Reamy, CSR, TCRR
                                      (903) 583-2863
Case 4:06-cv-00204-RC-AA     Document 38-1 Filed 01/23/12 P   ^ 32 of 62 PagelD #: 292


                                                                                 32




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


   3
               Q.    Well, I want you to say -- this is the last
   4
         time I'm going to ask.           Okay?    I want you to say what
   5
         you did with this lady that caused you to be charged
   6
         with a crime to which you pled guilty for which you

   7
         received a one-year jail sentence.               I want you to tell
   8     the judge what you did.

   9
               A.    I didn't do anything wrong.

  10
               Q.    Okay.     Did you ever talk to -- do you know
  11     who Donnie Jarvis is?

  12           A.    No .


  13           Q.    All right.

  14
               A.    I know of him, I guess.             I've seen him, but I

  15     don't    know him.

  16
               Q.    You talked to him in court at the trial.
  17     Right?

  18
               A.    I reckon.       Like I say, I don't know him.

  19
               Q.    Do you remember the lawyer who represented
  20
         Mr. Anderson at the trial that happened in March of
  21     2002?


  22           A.    Just by name.

  23
               Q.    All right.       But you remember that

  24
         Mr. Anderson did have a lawyer in court on March -- in
  25     March 2002.        Right?



                               Charla Reamy,      CSR,    TCRR
                                      (903)   583-2863
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                                                                                 33




   l            A.   Yes.


   2
                Q.   You testified.

   3            A.   Yes.


   4
                Q.   The prosecutor asked you questions.                Right?
   5            A.   Right.

   6
                Q.   Mr. -- the lawyer that represented
   7
         Mr. Anderson asked you questions, also.                 Right?
   8            A.   Right.

   9
                Q.   Had you ever seen that lawyer before the
  10     trial?


  11            A.   Yes.


  12
                Q.   Okay.     When and where?

  13
                A.   He come by my house on Oldham Road.

  14
                Q.   All right.       That's here in Bonham?
  15            A.   Yes,    sir.

  16
                Q.   When did he come by to talk to you?
  17
                A.   Before the trial.

  18
                Q.   All right.       Do you know how long before or
  19     not?


  20
                A.    No,   sir.

  21
                Q.    How long did y'all spend talking?
   22           A.    Not   long.

   23
                q.    What did he talk to you about, do you
   24     remember?


   25
                A.    He asked me about New York and I said I


                                Charla Reamy,     CSR, TCRR
                                      (903)   583-2863
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                                                                                  34



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

   2
         until just a while ago.            I'd never really known what I
   3     got convicted of.

   4
               Q. ' All right.         Did he ask you anything else?
   5           A.     I don't remember.

    6
               Q.     You don't remember how long that you talked.
   7     to him;     is that right?

    8          A.     No,    sir.

    9
               Q.     Okay.     Now, I understand you don't know

  1°
         exactly why you got prosecuted in New York.                    Do you
  11
         know whether what you got prosecuted in New York for
  12     was a felony or a misdemeanor?

  13
               A.     At the time,      I didn't know.

  14
               Q.     Now, when you've seen the document, you're
  15     reminded it's a felony.

  16           A.     Now I    know.

  17
               Q.      But you didn't know then?

  18           A.      No,   sir.

  19
               Q.      Thank you, Mr.        Barnett.
                              MR. HAYNES:      No further questions, Your
  20


  21      Honor,

                                     CROSS-EXAMINATION
   22


   23     BY MR.     MOSS:


   24
                Q.     Mr. Jarvis knew you had criminal trouble in
   25     New York,     didn't he?



                                 Charla Reamy,     CSR, TCRR
                                       (903)   583-2863
Case 4:06-cv-00204-RC-/^        Document 38-1 Filed 01/23/12 P   <5 35 of 62 PagelD #: 295


                                                                                     35




   l           A.       Yes,    sir.

   2
               Q.       Okay.     Did you volunteer that or did he ask
   3     you about that?

   4
               A.       He asked me about it.

    5
               Q.       Okay.     And you told him -- what do you
    6
         remember telling him got you in trouble in New York?
    7
             A. I really didn't know. I -- he said something
    8
         about New York, and I said, you know, New York.
    9          Q.       Okay.

  10
               A.       He -- they tried to ask me questions.                  I was

  11     kind of embarrassed.

  12
               Q.       What about it embarrassed you?

  13
               A.       Being charged with that, I guess.

  14
               q.       What did you get charged with?
  15           A.       What     the guy    --

   16
               q.       Tell me -- tell me what the girl in New York
   17     said you did.

   18          A.       I don't know.

   19
               Q.       You don't know.

   20
               A.       No.      I never saw her.       Just, it was a plea
   21
          deal.        My lawyer came and that was it.
   22
                Q.       Okay.     All right.       Did you ever see an

   23     indictment?


   24
                A.       I probably did, but...

   25             Q.     Okay.



                                   Charla Reamy,      CSR, TCRR
                                           (903)   583-2863
Case 4:06-cv-00204-RC-A/'     Document 38-1 Filed 01/23/12 P   ^ 36 of 62 PagelD #: 296

                                                                           _              1


                                                                                  3 6




   1            A.   I     don't    know.


   2            Q.
                     You know she accused you of forcing her to

   3
         have sex when she didn't want to have sex with you?
   4            A.   Yes,      sir.

   5            Q.
                     Okay.         All right.      So, you knew that.
   6            A.   Yes,      sir.

    7           Q.
                     All right.          What do we call that when you

    8
         force someone to have sex with you when they don't
    9    want   to   have sex with you?

  10            A.    1    don't know.


  11            Q.
                     Just generally.             You've heard it on the
  12     street.
                      Not the formal name of             the crime.     What do

  13     we   call   that on a day-to-day thing?

  14            A.    I    don't    know.


  15            Q-
                     Rape?         Does that sound right?

  16            A.    I    guess,     yes.


  17            Q.
                       I mean, yes?          No?    Maybe?

   18           A.     I guess yes.          Maybe.

   19           Q.
                       Okay.        And did Mr. Jarvis know that you had
   20     to regi ster as a sex offender?

   21           A.     I    don't    know.


   22           Q.
                     Did you tell him you had to register as a sex
   23     offende r?

   24           A.     I don't remember.

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

                                    Charla Reamy,     CSR, TCRR
                                         (903)     583-2863
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                                                                                   37




   l     you had to register as a sex offender?
   2            A.   I don't think it did.

   3
                Q>   Presently you have to register as a sex

   4     offender.         Correct?

   5            A.   Yes,     sir.

   6            Q.   Correct?

   7            A.   Yes,     sir.

   8
                Q.   You have to register as a sex offender for
   9     the rest of your life?

  10            A.   Yes,     sir.

  11
                Q.   And your registration is current?

  12            A.   Yes,     sir,

  13            Q.   You were        reg istered   as a sex offender back in

  14     2002


  15            A.   I     guess.


  16            Q.
                     Okay.      Well, when did you move to Texas?
  17            A,   I guess in 2001.

  18            Q.   Okay.

  19
                A.   I got out of jail and came straight to Texas.

  20
                Q.   When you got out of jail and came -- when you
  21
         came to Texas, did you know because of your conviction
  22
         you had to register as a sex offender?
  23            A.   No.


  24
                Q.   How did you find out?

  25
         From, the Bonham Police Department got ahold of me and


                                Charla Reamy,       CSR,   TCRR
                                        (903)   583-2863
Case 4:06-cv-00204-RC-A'         Document 38-1 Filed 01/23/12 P   -> 38 of 62 PagelD #: 298


                                                                                      38




    1
         told me I had to come in, and that's how it all
   2     started here.

   3
               Q.     He told you that you had to come in.                    Do you
   4     remember when that happened?

    5          A.     No.


    6
               Q.     All right.            Do you know if -- do you know if,
    7
         now, someone goes to look you up on the computer on
    8
         the internet, they'll find you registered as a sex

    9    offender?


  10           A.     Yes.


  11
                Q.    Okay.            At the time of the trial, could
  12
         someone have looked you up on the computer?

  13           A.      I       don't    know.

  14            Q.     Okay.

  15
               A.      I'm sure they could if they was looking for

  16     New York,         I    guess.

  17
                                 MR. MOSS:      Pass the witness.

                                        REDIRECT EXAMINATION
  18


  19      BY MR.     HAYNES:


  20
                Q.     Just a couple more questions, Mr. Barnett.
  21
          Do you -- you've been asked about this before.
   22
          During the trial in March of 2002, Mr. Anderson's
   23
          lawyer asked you about what your problems were in New
   24     York.      Right?

   25           A.     I       think so.




                                       Charla Reamy, CSR,      TCRR
                                            (903)   583-2863
Case 4:06-cv-00204-RC-Ar'        Document 38-1 Filed 01/23/12 P ^e 39 of 62 PagelD #: 299


                                                                                     3 9



    1            Q-
                        And he asked you if you had been convicted of

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

    3    Right?

    4            A.
                        I think he asked me if I was convicted of

    5     rape and I said no.

    6            Q.
                        All right.        And he asked you also if you had
    7
          been convicted of sexual assault in New York and you
    8     said no to that, too.              Right?

    9            A.
                         I don't remember him asking that.

  10             Q.
                        All right.        Well, let me see if I can refresh
  11
          your memory a little bit. Show you right here. It's
  12
          page 48 of the trial record, and I'm looking at lines
  13      four,       five, and six.        Just read that to yourself and
  14      see   if     that refreshes your memory any.

  15             A.      I mean,     this was years ago.

  16             Q.      Okay.

  17             A
                         If it says I said it, I guess I said it.
  18              Q      All right.

  19             A       I don't know that.

  20              Q
                         You don't remember now.            Right?

  21              A      No.


  22              Q
                         But you have no reason to challenge the
   23     record
                         The man asked you if you had been convicted

   24     of    sex
                      ual assault in New York and you said you hadn't
   25     been.        Right?



                                    Charla Reamy, CSR, TCRR
                                         (903) 583-2863
Case 4:06-cv-00204-RC-A/'       Document 38-1 Filed 01/23/12 P     - 40 of 62 PagelD #: 300

                                        •                                             4 0




   1           A.       Right.

   2           Q.
                        But, really, you had been.

   3           A.
                        I-ve only have a 7th-grade education, so I
   4     didn't
                      understand what you were going after.

    5           Q.
                        Okay. Well, but you knew when you gave that
    6     answer
                 that you hadn't been convicted of sexual
    7
          assault in New York, that that wasn't really true.
    8           A.      No, I didn't know.

    9           Q.      You didn't know?

  10            A.      No.


                Q.
                        And that's the -- that's what you're saying
  11


   12     today,      you just didn't know?

   13           A.
                        I didn't know, no, sir.

   14           Q.
                        And the same thing, I guess, about when he
   15     asked
                      you if you had been convicted of a felony in New
   16     York,       you said no to that, too.             Right?
   17           A
                         Right, because I didn't know.

   18             Q
                         Okay.     Thank you, Mr. Barnett.

   19             A      Yes,    sir.

                                 MR. MOSS:     Nothing further, Judge.
   20

                                 THE COURT:         Okay.   How old are you?
   21

                                 THE WITNESS:         Forty-three, ma'am.
   22
                                 THE COURT:         How far did you go in school?
   23

                                 THE WITNESS:         7th grade.
   24

                                 THE COURT:         Where did you go to school?
   25




                                    Charla Reamy, CSR, TCRR
                                            (903)    583-2863
Case 4:06-cv-00204-RC-A'   Document 38-1 Filed 01/23/12 P      ° 41 of 62 PagelD #: 301


           •                    •                                                  41




   1
                           THE WITNESS:       Sam Rayburn.

   2
                           THE COURT:     Here in Fannin County?

   3
                           THE WITNESS:       Yes,    ma'am.

   4
                           THE COURT:       How did you get to New York?
                           THE WITNESS:       Drove a      car.
   5


    6
                           THE COURT:       Why?

                           THE WITNESS:       I was married to a woman
    7


    8
         that was here that was abusive and busted my

    9
         windshield out and called me 60 times at my work and
  10
         the police wouldn't do anything, and I just left.
  11
                           THE COURT:       So, why did you go to New

  12     York?


  13
                           THE WITNESS:       Met a woman over there.

  14
                           THE COURT:       Was that the same person that

  15     you got    --

                           THE WITNESS:       No,    ma'am.
  16


  17
                           THE COURT:       -- in trouble about?
                           THE WITNESS:       No,    ma'am.
   18

                           THE COURT:       Have you gotten more
   19


   20     education since then?

                           THE WITNESS:       No,    ma'am.
   21


   22
                           THE COURT:       Why did you not finish your

   23     schooling?

   24
                           THE WITNESS:       I was raised up -- I left

   25
          home when I was 12.        Went to work when I was 12.


                              Charla Reamy,         CSR,   TCRR
                                    (903)    583-2863
Case 4:06-cv-00204-RC-A^   Document 38-1 Filed 01/23/12 R ? 42 of 62 PagelD #: 302


                                                                               42




   l
                           THE COURT:     Doing what?

   2
                           THE WITNESS:      Mowing the lawns for a guy

   3     named Johnny Terry.

   4
                           THE COURT:     So, where did you live?

   5
                           THE WITNESS:      In a barn.

                           THE COURT:     Why didn't your parents
   6


   7     continue to raise you?

   8
                           THE WITNESS:      I don't know, ma'am.         I

   9
         don't know.       They just couldn't do it, I guess.            I've
  10
         got four -- five other brothers and one sister.
  11
                           THE COURT:       So, what -- they all got

  12     raised by your parents?

  13
                           THE WITNESS:      Three of them did and three

  14
         of us took out on our own.           My one brother, he went to
  15     the army and served in Iraq.

  16
                           THE COURT:       Do you have any other

  17     criminal convictions?

                           THE WITNESS:       Felonies, no, ma'am.
  18


  19
         Little minor assaults and that was it.                 Pushed a guy
  20
         and got convicted of that and paid a $300 fine.
                           THE COURT:       Okay.     When was that?
  21

                           THE WITNESS:       Six months ago.
   22


   23
                           THE COURT:       Okay.     Any other times where

   24
          you've received probation or a fine or jail time or
   25     prison?



                              Charla Reamy,         CSR, TCRR
                                    (903)    583-2863
Case 4:06-cv-00204-RC-A^   Document 38-1 Filed 01/23/12 P   ? 43 of 62 PagelD #: 303


                                                                               4 3




   1
                           THE WITNESS:     I've never been to prison.

   2
         I was on probation back whenever I was 19, 20 years
   3
         old for a DWI, and that was it.

   4
                           THE COURT:     Do you have any mental

   5     problems?
                           THE WITNESS:     No,   ma'am.
   6


   7
                           THE COURT:     Do you have -- have you had

   8
         any depression or anything like that? Any of those
    9    type of illnesses?
                           THE WITNESS:     No,   ma'am.
  10

                           THE COURT:     Okay.    Any other questions by
  11


  12     the State or the defense?
                           MR. HAYNES:     Just a couple, Your Honor.
  13

                                 REDIRECT EXAMINATION
  14


  15      BY MR.     HAYNES:

  16
               Q. Okay. Okay, Mr. Anderson (sic), the Court
  17
          went into your other legal problems and I just want to
   18
          ask you about those a little bit.
   19
                A.     You mean Mr. Barnett.

   20
                q.     I'm sorry.     Mr. Barnett.     I beg your pardon.
   21
                A.     That's okay.

   22
                q.So, we've already talked about the New York
   23
          one. You were prosecuted in Fannin County for DWI; is
   24     that correct?

   25
                A.     A what?     DWI?



                                 Charla Reamy, CSR, TCRR
                                      (903) 583-2863
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                     —                    —                                      44




   1           Q.    Right.

   2           A.    Yes,    yes.


   3
               Q.    And they put you on probation, they filed a
   4
         motion to revoke your probation --

   5
               A.    A long time ago, yeah.

   6
               q.    -- and that motion was subsequently
   7     dismissed.

    8
               A.    Right, yes, sir.

    9
               Q.    And then -- and that was back in 1988.
  10     Right?

  11
               A.    Probably, yes.           It was a long time ago.

  12
               Q.    And then in 2004, you were prosecuted here in
  13
         Fannin County for assaulting a guy named Billy Don
  14     Patterson.         Right?

  15           A.        Correct.


  16
               Q.    And the sentence for that was -- what was
  17
          that sentence, do you remember?

  18           A.        Just a fine.

  19
                Q.       And then there was also an assault that you
   20
          paid a fine for this year in May of 2010. Right?
   21
               A. Right. The guy was trying to steal something
   22
          off my property and I just shut my gate.
   23
                Q.       Thank you, Mr. Barnett.        No further
   2 4    questions.

   25           A.       Thank you.




                                Charla Reamy,      CSR, TCRR
                                        (903)   583-2863
Case 4:06-cv-00204-RC-A^    Document 38-1 Filed 01/23/12 P' -*. 45 of 62 PagelD #: 305


                                                                                 45




   l
                            MR. MOSS:     Nothing further, Judge.

   2
                            THE COURT:      Sir, you may step down.

   3     Thank you
                           If you will wait outside in the hall,
   4     please.

                            THE WITNESS:       Yes.
   5


    6
                            MR. HAYNES:       Your Honor, we will ask the

    7
         Court to take judicial notice of a document in the
    8
         Court's file titled Coversheet for Evidentiary Records
    9
         that was filed on October 7th, 2010. You'll find
  10
         there in that document -- in the jacket copies of all
  11
         of the documents I just showed the defendant.
                            THE COURT:      Any objections?
  12

                            MR. MOSS:      No objection, Judge.          It's a
  13


  14
         certified document under seal.
                            MR. HAYNES:        We'll call Walter Anderson.
  15


   16
                            THE COURT:        Okay.     Sir, you may testify

   17     from there.

                            THE DEFENDANT:        Okay.
   18

                                    WALTER ANDERSON,
   19


   20     having
                     been first duly sworn, testified as follows:
                                   DIRECT EXAMINATION
   21


   22     BY MR.     HAYNES:

   23
               Q.      What's your name, sir?

   24
               A.      Walter Gerald Anderson.

   25           Q.
                       You are, of course, the very same Walter


                                Charla Reamy,         CSR, TCRR
                                      (903)    583-2863
Case 4:06-cv-00204-RC-Af          Document 38-1 Filed 01/23/12 P     ^ 46 of 62 PagelD #: 306

                                             .                                          AC




    1
         Gerald Anderson who was the defendant in this case,
   2     are   you      not?


    3            A.      Yes,     I    am.


    4            Q.
                         Mr. Anderson, let me direct your attention
         back     to
                        late 2001 and early 2002.                When were you
    5


    6
          arrested on this charge?

    7            A.      June     9,    2 0 01.

    8            Q.
                         All right.              Were you able to post your bond?
    9            A.      No.


   10            Q.
                         So, you remained in jail basically since the
   11     date    of    your arrest in 2001.                Right?
   12            A.      Yes,     sir.

   13             Q.
                         When was Mr. Jarvis appointed to you to

   14     represent you?

                  A.
                         Immediately upon arraignment, whenever --
   15


   16
          whatever date that was.

   17             Q.
                          So, he had represented you, then, for eight
   18     months
                       or so maybe, nine months before the case was |
   19     tried?

                  A.
                          Yes, that's correct.
   20


   21             Q-
                          Did you have regular contact.with him?
   22             A.      Yes,        I did.

                  Q.
                          You all were -- he was at his office, you
   23


    24     were       irl jail;       is that correct?
                  A.      That's        correct.
    25




                                        Charla Reamy, CSR, TCRR
                                                  (903)   583-2863
Case 4:06-cv-00204-RC-A/   Document 38-1 Filed 01/23/12 P   ? 47 of 62 PagelD #: 307


                                                                               47




    1
               q.    You could not leave the jail?

   2
               A.    I could not leave the jail.

   3
               Q.    Did he come to visit you in the jail to talk
   4     to you about the case?

    5
               A.    He did when I requested him, yes.

    6
               q.    Between June 2001 when you were arrested and
    7
         March 2002 when the case went to trial, how many
    8
         meetings did you have with Mr. Jarvis?
    9
               A.    Outside of the court proceedings, two.

  10
               Q.    All right.     And in that same period of time
  11
          from June 2001 until March 2002, how many times were
  12     you in court with him?

  13
               A.    Well, that's hard to say because the first
  14
          trial was declared a mistrial, and then we started a
  15
          second trial. So, however many proceedings it took, I
  16
          mean, to do that. I don't know an exact amount.
   17
               q. Were there any pretrial hearings before the
   18
          first trial that ended in a mistrial?
   19
                A.    I want to say yes, but I don't know for sure.

   20
                Q.    Okay.   How long did the first trial go before
   21
          the mistrial was declared?

   22
                A.    We picked a jury, and we were in a pretrial
   23
          proceeding and the bailiff marched me before the jury
   24
          in chains, and that's what declared the mistrial.
   25
                q.    That's what caused the mistrial.


                              Charla Reamy,      CSR, TCRR
                                    (903)   583-2863
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                                                                                48




   1           A.    Right.

   2
               q.    That was only a day -- less than a day.
   3     Right?

   4           A.    Yes.


    5
              q. And how long after that did you have the
    6
         trial that took place in March that actually went to a
    7    verdict?


    8
               A.    That trial lasted one day outside of picking
    9
         the jury. So, we picked the jury, and then we had a
  10     one-day trial.

  11
               q. Okay. What I'm wanting to find out is how
  12
          much time went by between the mistrial of the first
   13
          case and the beginning off. the
                                      +--uo trial
                                            t-vi»i tnat
                                                   that         was finished,


   14
            " A.     Not much. I think we had one brief hearing
   15
          to -- to   solidify any pretrial motions like discovery
   16
          or -- or   other things, and -- and that was it.
   17
               q.    All right. So, how long do you figure you
   18
          had spent with Mr. Jarvis before the trial began in
   19
          this case on.the 20th of March 2002, total? The two
   20
          meetings in the jail and all of the rest.
   21
                A.    Not long, because the proceedings,

   22
          themselves, were - were brief. They were just to,
   23
          like I say, put on record certain things, and then out
   24
          the door I went. So, as far as strategy meetings, we
   25
          didn't really have much time for that. I would say

                                Charla Reamy, CSR, TCRR
                                      (903)   583-2863
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                                                                                 49




   l
         two and that -- it wouldn't be no more than that.
   2
               Q.   Can you tell me how long those meetings were?
   3     Can you give me any feel for that?
   4
               A.   It's hard because I remember stressing things
   5
         to Donnie Jarvis that I wanted him to do that even

   6
         still didn't get done, but he seemed to know what he
   7
         was doing, so I left it in his hands.                I would
   8
         probably say maybe an hour all total.
   9           Q.   Both meetings.

  10           A.   Combined.

  11           Q.   Total?

  12           A.      Combined,    yeah.

  13
               Q.   How about letters -- did you guys exchange
  14     letters?


  15
               A.      Yeah -- we didn't -- all I ever wrote to him
  16
         was that I needed to see him, and then I seen him
  17     before the proceeding.

  18
               Q.      All right.     So, you didn't send him any
  19
         substantive letters about the case?

  20           A.      No.


  21
               Q.      Did he send you any substantive letters about
  22     the   case?


  23           A.      No.


   24
               q.      Did you guys talk on the phone?

   25          A.      No.




                                Charla Reamy,     CSR, TCRR
                                      (903)   583-2863
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                                              •                                *n




   1
             q. Not at all? So, when you went to trial on
   2
         the 20th of March 2002, had you received the discovery
   3
         information in the case?

   4
               A.    No,   I hadn't.

   5
               q.    And, in particular, had you received any
    6
         information about the prior criminal history of Darin
    7
         Ray Barnett, the State's complaining witness?
    8
               A.    No, because had I received that information,
    9
         I, myself, would have testified and put my criminal
  10
         record up against his. It would have been an equal
  11
         playing field, you see.

  12
               Q.    Okay. So, you had no idea of his prior
   13     criminal record?

   14          A.    None.


   15
               q.    As far as your attorney -- as far as you
   16
          know, your attorney, Mr. Jarvis, had no idea?
   17
               A. He had none, and I was surprised when he .--
   18
          when he come up with this information for trial
   19
          because we had not discussed his prior criminal
   20     history at all.

   21
               Q. Okay. Of course, he said in court that he
   22
          didn't -- hadn't received the prior criminal history.
   23     Right?

   24
                A.    That's true.

    25
                q.    And you never saw it.         Right?


                               Charla Reamy, CSR, TCRR
                                       (903) 583-2863
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    l
               A.     I never seen it.

   2
               Q.     Is there anything else that you want to say
   3
         to the Court or for the record about this situation
   4
         about what you knew and what your attorney knew about
    5
         Mr. Barnett's prior criminal history?

    6
               A.     Only that had I known he had a criminal
    7
         history, I, myself, would have testified and told the
    8
         jury that I did not kidnap that man. Yes, I had a
    9
         gun, but I did not kidnap him. And Donnie Jarvis
  10
          advised me against it because I had a criminal history
  11      and he didn't.

  12
                Q.     Okay.    Thank you.
                             MR. HAYNES:       No further questions.
  13

                                   CROSS-EXAMINATION
  14


   15     BY MR.     MOSS:

   16
                q.     What things did you stress to Mr. Jarvis that
   17     you wanted him to do?

   18
                A.     I wanted him -- in the testimony, Darin
   19     Barne
                  tt and myself, both, said before trial that he
   20
          stopped for gas, and when he stopped for gas is •                     is




   21
          when he came back from the gas station -- from inside
   22
          the gas station, he told me he had a car. Right then
   23
          we turned around and went back to the taxicab. If
   24
          Donnie Jarvis would have went to that place of
   25
          business, they had video surveillance of him getting

                                Charla Reamy,      CSR, TCRR
                                       (903)   583-2863
Case 4:06-cv-00204-RC-A'    Document 38-1 Filed 01/23/12 P   ? 52 of 62 PagelD #: 312


                                                                                52




   1
         out of the cab, going in by himself, coming back, and
   2
         getting in the cab. I don't know if they had -- they
   3
         had surveillance at the pumps or not, but it would
   4
         have put a definite time frame on when this happened
   5
         and we could have judged how long it took him between
    6
         the time of him selling me a car and actually going to
    7
         the police station, because he had a cell phone in his
    8
         lap and he didn't use it. And I contested that he
    9
         went somewhere else after this alleged kidnapping.
  10
             q. Okay. So, basically, the facts were, you and
  11
         your son and a third person -- who was the third
  12      person?

  13
               A.    Enrique Garza.       He was a friend of my son.
   14
                Q.    Enrique Garza.      Y'all get in the cab and you
   15     say, Take me to Utah.

   16           A.    No.


   17           Q.    Okay.

   18
                A.    No.     The boys were running away to Utah and
   19
          they were in the backseat discussing it. I said, Take
   20     me to Paris,.Texas.

   21
                Q.    Okay. Why did you have a gun?
   22
                A.    The boys had a gun. I came to town -- my son
   23
          called me on the phone and he said, Dad, I've got a
   24
          gun, I'm running away from home. I told him, Don't
   25
          move. Well, I went to town and got the gun from him,

                                Charla Reamy, CSR, TCRR
                                      (903) 583-2863
Case 4:06-cv-00204-RC-A'     Document 38-1 Filed 01/23/12 P   •» 53 of 62 PagelD #: 313



                                                                                  53




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

   2
         Him and Enrique both had two other guns.                  So, I put
   3
         the gun in my pocket, and -- the last time he ran away
   4
         from home, I got -- I got reamed out by my wife
   5
         because I let him run away from home.                I gave him
    6
         money and told him, Look -- so, this time, when he ran
    7
         away from home, I said, All right, I'm going to take
    8
         you to your mom; you tell her you're running away from
    9
         home.         This way, I don't get into trouble.            She was
  10
         working in Paris, Texas, at the time, which is why we
  11     needed the cab.

  12
                  Q.     So, Mr.    Barnett's central story was, you

  13
         came in, said, Take me to Utah, I gotta gun. Right?
  14
         And your story was, no, that wasn't the case, it was
  15
         just a misunderstanding; I never threatened him with a
  16     gun.


  17
                  A.     Mr. Barnett testified that I didn't do this
  18
         right away.         He said that I got in the cab and -- and
  19
          told them that we were going to Paris, Texas.                   He
  20
          says, Well, if we're going past Honey Grove, we need
  21      gas .


   22             Q.     Okay.

   23
                  A.     This is part of his statement.           So, we were

   24
          going to stop to get gas. When I got in the car, the
   25
          gun had dug into my hip. Before we even got to the

                                   Charla Reamy, CSR, TCRR
                                        (903)   583-2863
Case 4:06-cv-00204-RC-A'    Document 38-1 Filed 01/23/12 P   ^ 54 of 62 PagelD #: 314



                                                                                54




   l
         gas station, I told him, Listen, I've got this gun;
   2
         I'm going to set it on the floorboard, it's not even
   3
         loaded, don't worry about it; I've taken it away from
   4
         my son. He said, Well, don't worry about it.
   5           Q.
                     Mr. Enrique Garza testified at trial, didn't
    6    he?


    7          A.    Yes,     he did.

    8
               Q.     Okay. And was his testimony supportive of
    9
         your side of the story or supportive of Mr. Barnett's
  10      side of the story?

  11
               A.     All he testified to in reality was the fact
  12
          that he didn't see me point the gun at Darin Barnett
  13
          and order him to do anything. That's basically all
  14
          his testimony will reflect.

   15           Q.    Okay.

                            MR. MOSS:      Nothing further.
   16

                            MR. HAYNES:        That's all we have, Your
   17


   18
          Honor.     The defendant rests on the hearing.
                              THE COURT:      Anything from the State?
   19

                              MR. MOSS:       Nothing from the State, Your
   20


   21     Honor.

                              THE COURT: 'Okay.        Are the attorneys
   22


   23
          prepared to make their final remarks at this time?
                              MR. MOSS:       Yes, Judge.
   24

                              MR.   HAYNES:     Yes.
   25




                                Charla Reamy, CSR, TCRR
                                     (903) 583-2863
Case 4:06-cv-00204-RC-A'   Document 38-1 Filed 01/23/12 P    •> 55 of 62 PagelD #: 315



                                                                                 55




   1                       THE    COURT:   Okay.    You may proceed,

   2     Mr.   Haynes

   3
                           MR. HAYNES:        Your Honor, we're going to

   4
         ask the Court to grant relief in this case.                  It's
   5
         clear that the credibility of the witness Barnett is
   6
         critical to the verdict that was attained in this
   7
         case, and it's" also clear that he deliberately misled
   8
         the jury about his prior criminal record. And because
   9
         Mr. Anderson's attorney didn't have the information to
  10
         effectively cross-examine him, that that was allowed
  11
         to stand, and if it hadn't, then we can't say beyond a
  12
         reasonable doubt that the verdict would have been the
  13      same .



  14
                           Mr. Anderson has a defense in this case

  15
         that he was persuaded not to put on because of his
  16
                :riminal record, and if the true nature of the
         prior c]


  17
          witness Barnett had been shown to the jury, that
  18
          defense could have been put on. That's resulted in a
  19
          miscarriage of justice in this case, Your Honor. I
  20
          understand how hard it is to recommend that a case

   21
          that's eight years old be reopened.               I understand all
   22
          that. But I know the Court knows that a fair and
   23
          correct result is more important than the convenience
   24
          of it, and we're asking, because the evidence supports
   25     it, for relief to be granted.


                                 Charla Reamy,     CSR, TCRR
                                      (903)   583-2863
Case 4:06-cv-00204-RC-A     Document 38-1 Filed 01/23/12 P   ^ 56 of 62 PagelD #: 316



                                                                                56



   l
                            MR. MOSS:    Your Honor, the State would

   2     request that the relief as stated in the motion be
   3     denied.     The defendant has filed a motion for new

   4
         trial based on newly discovered evidence.                 He has not

   5
         shown that that evidence was not available at the time

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

   7
         was on notice that there was criminal history out of

   8
         the state of New York.          He could have investigated

   9
         that.     He failed to do so.        He even --he could have

  10
         --he made a motion to the Court to have the State

  11     provide that information.           He could have forced the
  12     judge to have the State provide that information
  13     rather than just make a motion.

  14
                            In addition, as the -- as the defendant's

  15
         motion is currently presented, it is untimely and the
  16
         Court doesn't -- actually lacks jurisdiction to grant

  17
         his request for new trial based on newly discovered
  18
         evidence because he has filed it some eight years

  19
         after his conviction in this case when the Court no

  20     longer has plenary power over it.

  21
                            The defendant has previously filed a writ

  22
         of habeas corpus.        That writ was -- alleging -- or,

  23
         raising some similar grounds of ineffectiveness and
  24
         actual innocence, and the Court in that -- court of
  25
         criminal appeals, in that case, denied his request


                              Charla Reamy,      CSR,   TCRR
                                     (903)   583-2863
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                                                                                57




   1
         without a hearing; and, as a result, the Court would
   2
         request -- or, the State would request the Court to
   3
         deny the defendant's motion for new trial based on
   4     those   issues.


   5
                           THE COURT:       Your understanding of the

   6
         date when that writ or habeas was raised?
   7
                           MR. MOSS:        I believe it was 2004, but I

    8
         could be -- 2006.         The relief was denied without
   9
         written order by the court of criminal appeals on
  10
         March 22, 2006, in Case Number WR-61,082 -02 .
                           THE COURT:        Okay.   Mr. Haynes, any
  11


  12
         response to the State's procedural point regarding the
  13
         fact that there's been one bite at the apple, in
  14
         essence, and that there would have been information
  15
         about that that makes this request untimely?
  16
                           MR.    HAYNES:     Well   --

  17
                           THE COURT:        If taken as a writ as opposed

  18
         to a motion for new trial, which is untimely.
                           MR. HAYNES:        We've got -- we've got
   19


   20
         procedural problems in this case for sure and no one
   21
         can back away from that. But the Court took this
   22
          matter into an evidentiary stance in this case by
   23
          treating this as a writ, and I think the evidence
   24
          shows that Mr. Moss's predecessors were not as careful
   25
          as they should.have been about turning over the prior

                                 Charla Reamy, CSR, TCRR
                                      (903) 583-2863
Case 4:06-cv-00204-RC-A      Document 38-1 Filed 01/23/12 F *. 58 of 62 PagelD #: 318

                                                                                58




   1
         criminal record of Mr. Barnett to Mr. Anderson's
   2
         lawyers. And I'm afraid it shows that Mr. Barnett was
   3
         actively deceiving the Court in March 2002, and I dare
   4
         to say this Court here today when he minimized over
   5
         and over again what his prior criminal record in the
   6
         State of New York is, and that just creates such an
   7
         unlevel playing field that, in the interest of equity
    8
         and fairness, we're asking the Court for relief.
                            THE DEFENDANT:        May I respond to --
    9

                            THE    COURT:   No.
  10


  11
                            MR. HAYNES:        Your Honor, I might point

  12
         out to the Court that there is a federal writ pending
  13
         for :06-CV-204 in the Eastern District of Texas, and
  14
         what that Court did was refer the matter to the
  15
         magistrate, Judge Mazzant, who placed the case -- the
  16
          federal writ case on a suspended status until the
  17
          defendant's -- the State remedies had been exhausted,
  18
          and he's relying on that authority from the federal
   19
          court directing him to exhaust the State's remedies to
   20
          come before this Court today.

   21
                             THE COURT:        When was -- when did that

   22     occur?


   23
                             MR. HAYNES:        The case was closed on the

   24
          13th of July, 2009, and that's when this order was
   25
          entered.        To get you a paper copy of it would require

                                  Charla Reamy, CSR, TCRR
                                       (903)    583-2863
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                                                                                 59



   l
         me to go online and get you a copy.                 I could certainly
   2
         do that, but not today.         I can send it in the mail if
   3     the Court wants to see it.

   4
                          THE COURT:       Anybody have an idea of what

   5
         the federal court thought was still available?

   6
                          MR. HAYNES:       No, I don't.        We'd have to

   7
         -- this is just -- I don't -- Judge, I don't know how
   8
         -- I guess you're probably pretty familiar with the
   9
         federal court's electronic-docketing system.                   They

  10
         send out these little docket reports, and then a

  11
         document is associated with it.            In order to get the
  12
         document, you have to go online and download it.
  13
         That's what has all of the details in it.                  I've got --

  14
         if you want to see the docket text, Your Honor, I've
  15     got it here.

  16
                          THE COURT:       No.   I trust your statement,

  17
         but for them to indicate they thought there was

  18
         something else that could be exhausted is --
  19
                          MR. HAYNES:       They don't specifically say

  20
         what that is, and, you know, of course, they're not

  21
         very concerned about the details of State procedure.
  22
                          THE COURT:       The Court's position is that

  23
         -- two things.      Procedurally, first this is an
  24
         out-of-time motion for new trial.               Out of an abundance
  25
         of cause, I allowed for the attorneys to investigate


                             Charla Reamy,       CSR,    TCRR
                                   (903)    583-2863
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   l
         it on your behalf -- basically your attorney

   2
         investigate it on your behalf, Mr. Anderson.                  But it's
   3
         my opinion that the previous writ would have been the
   4
         appropriate vehicle to raise this, and you don't get
   5
         multiple bites at the apple on raising writs.                  So, I'm
   6
         going to deny your request -- your requested relief.
   7
                          So, if the attorneys would prepare an

   8
         order reflecting the fact that, in my opinion, he has
  . 9
         exhausted his writ request and then, perhaps,

  10
         Mr. Anderson can use that to refer to the federal
  11
         authorities to see if they have anything that they
  12
         have the ability to address.            But then -- at least it
  13
         will be that type of ruling here; and, of course, he's
  14
         got the court of appeals ruling on the previous
  15     matter.


  16
                          MR. HAYNES:         Thank you, Your Honor.

  17
                          MR.    MOSS:   Yes,    Your Honor.

  18
                          THE COURT:         All right.     Gentlemen, if

  19
         you'll just get an order due date and order status
  20     date .


  21
                          MR.    MOSS:   I will.

                          THE COURT:         I understand you'll be prompt
  22


  23
          about it, but we'll get a date certain where that will
  24      come 'in.


  25                      Mr     Anderson, I appreciate you being


                                Charla Reamy,    CSR,     TCRR
                                     (903)    583-2863
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                                                                                 61




    l
          here.     We will release the bench warrant, so you'll go
    2
          back, but you'll have a copy of that order coming to
    3     you as soon as they get it.           Okay?
    4
                            THE DEFENDANT:       Sure.


    5
                            THE COURT:       All right.      Thank you, sir.

    6
                            (End of proceedings.)

    7


    8


    9


  10


  11


  12


  13


  14


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                               Charla Reamy,      CSR,    TCRR
                                     (903)    583-2863
Case 4:06-cv-00204-RC-A " ', Document 38-1 Filed 01/23/12 P i 62 of 62 PagelD #: 322

                                                                                62




    l    THE STATE OF TEXAS         )

   2     COUNTY OF FANNIN           )

   3
              I, Charla Reamy, Official Court Reporter in and for
   4     the 336th District Court of Fannin County, State of

   5     Texas, do hereby certify that the above and foregoing
   6     contains a true and correct transcription of all

   7
         portions of evidence and other proceedings requested
   8
         in writing by counsel for the parties to be included
   9     in this volume of the Reporter's Record, in the

  10
         above-styled and numbered cause, all of which occurred
  11     in open court or in chambers and were reported by me.
  12
              I further certify that this Reporter's Record of

  13     the proceedings truly and correctly reflects the
  14
         exhibits, if any, admitted by the respective parties.

  15
              I further certify that $279.00 is the cost for this

  16     volume of the Reporter's Record and will be paid by
  17     Fannin County;

  18
              WITNESS MY OFFICIAL HAND this the 14th day of

  19     November,    A.D.,    2011.

  20


  21                                     Chu/iK
                                        CHARLA REAMY, Texajs/ CSR 63 61
  22
                                        Expiration Date:           12-31-12
                                        Official Court Reporter,
                                        336th District Court
  23
                                        Fannin County, Texas
  24
                                        Bonham, Texas 75418
                                        (903) 583-2863
  25




                              Charla Reamy,        CSR,     TCRR
                                       (903)   583-28 6 3
Scanned Dec 14, 2010



                                                      CAUSE NO. 20118

             STATE OF TEXAS                                    §                IN THE 336* JUDICIAL

                                                               §                DISTRICT COUH?

             WALTER GERALD ANDERSON                                             FANNIN COUNTY,


                                                          ORDER

                     After consideration of the evidence presented, and the arguments of the Defendant's motion      /*
             for new trial based on newly discovered evidence is denied. Further the court finds that based on the
             same evidence the Defendant has exhausted all potential remedies available to him through Texas
             Law.

                                                                   ^Tf\A^
                                                              Judge of the 33L^ ^Jl-eLtu'euQ. &i;$4-
                                                               Court of     •r&M.i^.ily       County, Texas




                                                                                J"                                        31
                      IN THE COURT OF CRIMINAL APPEALS

                                        OF TEXAS




                                     Cause No. 20118




                                          Ex-Parte


                                WALTER G. ANDERSON




                     Petitionfor leaveto file Out-of-time Petitionfor

                                   Discretionary Hearing



                           RR1EF STATEMENT OF THE CASE


 Following ajury trial in the 336th District Court of Fannin County, Texas, petitioner was
 convicted of Aggravated Kidnapping and sentenced to 25 years in state prison. The 6th
 District Court of Appeals, Texarkana, affirmed this conviction on December 18, 2003.
,JKrit,N.o..J3.k02^^^^
 filed due to the neglect of the appointed attorney, Donnie Jarvis, of Sherman Texas to
 notify his client, petitioner that the appeal had been affirmed.


 The Texas Court of Criminal Appeals has stated that an Appellate Counsel has aduty to
 inform the defendant that (1) the Appellate Court affirmed the defendant's conviction and
 (2) the defendant has aright to file apro se petition for discretionary review with the
  Court ofCriminal Appeals, ex-parte Wilson, 956 S.W. 2d. 25,27 (Tex. Grim. App. 1997)
If counsel fails to perform his duty, the appropriate relief is to allow the defendant to file

an out-of-time petition for Discretionary Review. Ex-parte Jarrett, 891, S.W. 935 (Tex.

Crim. App. 1995)



To assume petitioner has lain dormant all this time and not tried to gain relief from a

miscarriage of justice, or wrongful conviction, or any other term that describes

petitioner's situation would be inerror. Upon learning ofthe 6th District Courts decision
to affirm through the prison law library six months after the fact, petitioner's biggest

concernwas beatingthe one year limitation set by the A.D.E.P.A. The Texas law library

does not provide legal advice, only books. Petitioner carried his claim of innocence

through the Federal Courts and all the way to the gates of the U.S. Supreme Court as a

pro-se litigant. Petitioner's claim remains barred for Procedural Infractions that were a

result of a court appointed attorney who deliberately, with prejudice, failed to present

trial errors that he himself preservedto the record and then tried to manipulatethe system

to hide his actions by not notifying petitionerthat his conviction had been affirmed and

that he had a right to file a P.D.R. in this court.



                                           PRAYER




Thatthis court grant me leave to file an Out-of-time Petition for Discretionary Review to

complete process theFederal Courts demand to overcome a Procedural Barcurrently in

place. Thank you.



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