Before me, the undersigned notary, on this day personally appeared BARTON R. GAINES, the affiant, a person whose identity is known to me. After I administered an oath, affiant testified as follows:
My name is BARTON R. GAINES. I am over 18 years of age, of sound mind, and capable of making this affidavit. The facts stated in this affidavit are within my personal knowledge and are true and correct.
My folks were going to live there until they built their house in Granbury, Texas (244 Siesta Court), and did; my grandma was going to leave me her house when she passed, but I told her I didn't want to live there (the house felt sort of creepy to me because my mom was molested there), and to sell it in 2007 or '08 and loan the money to my mom and Corey to help build their new house in Granbury.*
They were also trying to get me out of Crowley away from those “Crowley kids”, as my grandma called them.
She also got me a job putting together air conditioning parts for cars at her old job (SCS Frigette, 1200 West Risinger Road) where she had worked prior to as the secretary for the owner (John Bills
I do not recall her ever telling me not to drink or anything like that.
Because we were waiting on TRC to fill my prescription, my mom started giving me Corey's Paxil who I guess stopped taking his Paxil (4 RR 46:24 + 47:13
)) in Benbrook, Texas (912 Cottonwood Trail), whom I was supposed to have picked up, and where she (Tiffani) was living at the time, then he (Jeremy) drove us (Tiffani & me) to my grandmas down the street.
Around seven in the morning my stepdad walked into my room and said, “Oh! I didn’t know you were home. Where’s your truck?”
I told him it was stolen, and he said, “Oh.” And walked out of the room.
A few minutes later my mom came into my room screaming and yelling for me to get up, then Tiffani, my mom, and I drove back over to Jeremy's girlfriend’s.
While we were waiting out front for the cops to show up (my mom called them), I jumped the fence and walked over to the apartment where, outside, I saw my truck parked haphazardly in the parking spot where I had parked it the night before, un-haphazardly.
I got the key that I had stashed on the frame and took inventory of its (my truck’s) contents.
Several CDs were missing, my shotgun, and the $40 in gas that I had just put in it the night before when I cashed my check, were gone. (3 APP 200:43-63
).
My wallet was there, and the $200 + from when I cashed my paycheck were in the console where I had left it (the $200 plus was in a side compartment in my wallet not readily noticeable) but the $20 or so that I had in the main compartment of my wallet was gone and all the quarters, nickels and dimes in my ashtray were gone (about $20 worth).
I next knocked on the door of the apartment and woke up everybody there then my mom, Tiffani, and the cops pulled up; Jeremy’s girlfriend’s little sister (Crystal) was holed up in the bathroom all schiz-ed out (high on meth) taking a bath and wouldn’t come out; after the two male police officers (Samuel C. Davidsaver & Reynolds)(3 APP 201:34
) told my mom to go into the bathroom to get her (Crystal’s) purse to look for my keys, she did, but my keys were not in her purse, though several (not all) of my CDs were.
After calling Jeremy's girlfriend’s mom (presumably Mrs. Foley) to come get her little sister, the cops left, then we went to the neighbor’s (Melinda Lopez, who was living with her parents or something) apartment to look for my keys, shotgun, and CDs but they said she (Melinda) wasn’t there, and they didn’t know anything about it! (3 APP 201:56
Early Saturday morning on 02-02-02 (Ground-Hog Day) Tiffani and I met at Denny’s (now apparently a Wal Greens) off Hulen Street in Fort Worth, Texas (6048 South Hulen Street) then she followed me in her new car
to my house in Benbrook, Texas.
Later that morning around 10 a.m. we woke up and I rode with her to the car dealership off Bryant Irvin (5000 Bryant Irvin Rd, Fort Worth, TX 76132) and Overton Ridge where her great-aunt (Diane Nixon (10500 Bing Drive, Fort Worth, Texas 76108)) had bought Tiffani her first car the day before, so that she could finish signing some paperwork and get her new car detailed for free.
Afterward she dropped me back off at my house and she went to her house where we were supposed to meet back up after I took a shower and got dressed so that we could go over to her great aunts house to celebrate her aunts, Paula Thomas, now Paula Scott (DOB: 2-2-65), and one of her cousins[FN 1] birthday, but before I left Brett Tucker (DOB: 4-20-83
) called me from Jeremy's girlfriends (Something Foley) apartment to tell me what Ricky Arredondo (DOB: 6-19-81
), who had just gotten out of jail, heard about Tiffani from Justin J-Roc Ross (DOB: 4-21-80), who was also in jail while Ricky was in jail.
Brett told me that Ricky told him that J-Roc told Ricky that while they (Ricky & J-Roc) were in jail together that J-Roc told him that he and a friend of his got Tiffani “drunk and high on alcohol and Xanax and had sex with her.”
Ricky then got on the phone and told me the same thing that Brett told me, then Brett got back on the phone and told me to come over to Jeremy's girlfriend’s apartment so that Ricky could tell me in person, which I did, and Ricky did.
)(which I took in a good-faith effort toward amending our relationship), I believed what Ricky was telling me about Tiffani (whom I had known since I was nine years old) ; Tiffani had slept with Jason (whom I had also known since I was ten or eleven years old) after she helped bond him out of jail in Azle in 2000 when he got arrested for possession of that pistol[FN 2] in those pictures discussed more below. Of course, it didn't help Tiffani's mom (Dannyta Diane Finch-Starr (DOB: 5/6/69
)) started her (Tiffani) stripping (at "Baby Dolls") late Spring, early Summer of 2001. I think Paula let it slip to my mom she went there to pick up Tiffani where she was supposed to be waitressing (according to Paula) but instead came out "dancing". That was how the whole horrible ordeal was broke to me, waitressing and all. Tiffani sent me this picture
shortly after I arrived in prison from jail.
After Ricky told me in person, dejected, I drove back to my grandma’s house and slept in the recliner in the living room until night.[FN 3]
) were with her, and she was like, “It’s a girl’s night out, baby!”
She could tell that I was upset and asked me to come out onto the front porch where I asked her about J-Roc and what Ricky told me, but she only cried; Lucas came out onto the front porch and took her back inside and I left and went back to my grandma’s.
I was supposed to work with my stepdad in the morning on the moving truck, only I did not know that the job was canceled.
Friday on 2-08-02 after I got off work my mom and I went to my grandma’s old bank (First National Bank of Texas, 851 Winscott Road, Benbrook, Texas 76126) up the street from where we were living to get a loan to pay off my credit card debt and borrow a little extra money to insure my truck (4 APP 3 &
Earlier that week my grandma called and came by our house to see if I had gotten my truck insured.
My mom had told her when my truck was stolen that I had let the insurance lapse.
My mom told my grandma that I could not afford to pay the bare minimum on my credit cards, let alone insure my truck.
My grandma told my mom and me to go to her bank and use my truck as collateral and take out a loan to pay off my credit card debt and insure my truck until I got some more money from my dad’s (Barton R. Gaines, Sr. (DOB: 7/30/63))[FN 4] wrongful death settlement, and my grandfather’s (James G. Gaines aka “Jimmy”),[FN 5] who never had anything to do with me (though my other granddad had anything to do with us either), estate inheritance on my twentieth birthday.
After we were done at the bank, I went out that night, and I came back home.
In the morning (Saturday) on 2-9-02 my mom, stepdad, and I went to an insurance company off Jacksboro Highway between 28th Street and I-820 in Fort Worth (5840 Jacksboro Hwy, Fort Worth, TX 76114) to insure my truck.
While there in front of my new insurance agent my mom commented to me that I should move on and forget about Tiffani because there were plenty of other girls out there whom I could date then she pointed out to me my new insurance agent’s pictures of her nieces on her desk.
In response my new insurance agent asked us who Tiffani was and my mom explained to her that Tiffani was my ex-girlfriend whom I had recently broken up with for having a threesome with two other guys.
My new insurance agent then showed me several more pictures of her nieces from her wallet and encouraged me to pick one, that she would help set us up on a date with one of them.
), how I met and whom I had the Valentine’s Day date with, then she gave me her telephone number and told me to call her, that she would tell her that I would be calling.
), also in Fort Worth where I ran into Tiffani, her grandma (Judy) and Paula.
Before I left, Tiffani and I answered one of Pastor Jeff's Wickwire’s[FN 6] altar calls, then we went outside to my truck, talked then I left; she denied, as she had initially done with Jason, sleeping with J-Roc and his friend.
Thursday on 2-14-02 as I was getting off work and driving home around three or four in the afternoon Tiffani called me on the telephone from her grandma’s (Judy’s).
While on the telephone I asked her about the threesome again and the STD that I thought I may have got as a result of her threesome.
When I got home, I took a shower, got dressed, and picked up my Valentine's Day date, Crystal, who lived off Northwest 32nd Street (she lived right beside this church; the house appears to be gone) in Fort Worth, whom I had, of course, recently met, at her parents’ house, then I brought her by my house where I got some more money.
While there my mom took a picture of us in front of the fireplace (6 RR DX 17
) then we left and went out to eat with some of her friends (another couple).
After dinner I dropped her back off at her parents’ house and went to and stopped by Tarah’s in Crowley, where I stayed the night.
Friday 2-15-02 I woke up at Tarah’s and went to work, then after work, Brett called me that he was at Jeremy’s girlfriend’s apartment and that he needed a ride later to pick up some ecstasy for him and his girlfriend, Victoria K. Clark (DOB: 1-23-84
After I got off work, drove home, took a shower and got dressed, I left and picked up Victoria, Brett, Jason, and Daniel Aranda aka Werre (DOB: 12-12-83
)(Jason’s new Latin King homeboy from California)[FN 7] and the four of us (Victoria and Brett in the cab with me; the others in the bed) drove down to some apartments (LeBlanc Apartments) that I had never been to before on the southwest side of Fort Worth off Old Granbury Road.
When we got there, they (Brett) had me park in the back, then Victoria and Daniel walked up to the apartments to a gate where they met some dude. A few minutes later he (the dude) came out the gate in the back of the apartments, they talked, he took off running back toward the apartments, and they came running back up toward my truck talking about “Go! Go![FN 8]
After that, I took them back to Jeremy's apartment and sometime later that night, early that next morning, Daniel and I went out to Tiffani's mom's in Granbury (5908 Texas Trail, Granbury, Texas 76048)(Lake Granbury Harbor), where she was renting my trailer house, where while there--Tiffani was there--I confronted Tiffani again about the threesome and STD.
After we left, I took Daniel back to Jeremy's and then I went home by myself.
Later that morning Saturday on 2-16-02 Brett, Jason, and Ricky started calling me incessantly about Tiffani, the threesome, and more guys they heard she supposedly slept with. See, e.g., (SHCR 116, 2d full ¶
Sunday on 2-17-02 I was going to go to church again, but because I did not want to see Tiffani, or any of her family, I stopped by Crystal’s, and we got something to eat at the Jack 'n the Box off University by I-30.
Later, I went back home and washed and cleaned my truck and the garage and got ready for work in the morning.
See, e.g., (SHCR 116, 2d full ¶
As I was getting off work (@ 3 p.m.)(@ SCS Frigette)[FN 9] Thursday on 2-21-02 around three or four in the afternoon Jason called me from Daniel’s dad’s house in Crowley, Texas (557 Lineacre), up the street from his dad’s (Larry Dean Tucker, Sr. (12-3-49)(DOD: 10/14/06))(201 Water Lane).[FN 10]
Jason wanted a ride up the street to Toms E Z N - Convenience Store (9225 Crowley Road, 76134) off Crowley Road, by where I worked, to get some beer.
I was not doing much and had a little time to spare before having to head home, so I agreed.
When I got to Daniel’s we sat there for a little while before going to Toms because they were “tripping acid” (LSD).
After we left and as we were pulling into the parking lot surrounding Toms Tarah called me talking about how she was with Mindy and how they had not seen me in a while or whatever and wanted to “hang out”.
I told her who I was with and where I was, and she was like, “Oh! I’m right around the corner at
Jennifer Jernigan’s;[FN 11] so I told her to meet us there, that we would wait there for them.
When they got there, we got out and they hugged us, as only girls can, and, seeing Jason’s and Daniel’s beer, bought some themselves
(Zima), suggested that we follow them somewhere they knew where we could drink, “hang out,” and “kick it.”
It was a little dirt road that ended next to a pond, where we got out and hung out, and in doing so, Jason “popped trunk” on Tarah’s Honda (Civic) and pulled out Brett's shotgun (3 RR 206:22-207:7), which he (Brett) had let him (Jason) borrow that Jason had left in Tarah’s car from some earlier time or whatever
((3 APP 32:34-37)
see also (3 APP 81:35)), and we took turns shooting it until we shot up all Brett’s and Jason’s or whoever bullets, just target practicing, all five of us (Mindy & Tarah, included[FN 12])(3 APP
200:44 &
201:34-38); but see where Tarah really tries to drive it home the shotgun was mine and in my truck (3 APP 81:35-36).
When we tire of doing that Jason and Daniel got in Tarah’s car and started doing donuts, driving recklessly out in the middle of the pasture while Tarah and Mindy got in my truck with me, and we listened to my radio.[FN 13]
A while later, it was already dark, some dudes (Michael Edward Williams aka
Mike (DOB: 9/28/84) and Andrew
Stockton Horvath aka Andy (DOB: 12/6/84)) showed up; they pulled up perpendicular to the driver side of my truck
with their lights on bright then got out (of their car) and came up to my truck smoking on a blunt like, “Hey dude. What’s up? What’re y’all doing out here?” to which Mindy and Tarah got out of my truck to see who they were, where Mindy figured out that she knew one of them, although I don’t really recall them figuring out they knew each other (Mike).
Jason and Daniel, who were still mudding when they pulled up, pulled up to see who they were, and we all sort of huddled together while they smoked; when Mike and Mindy figured out they knew each other, he asked her and Tarah if they wanted to smoke, and Tarah, Mindy, Mike, and Andy smoked.
Jason, I know , didn’t really like weed, and I don’t think Daniel did either (they didn’t like how it made them feel), plus they were tripping acid and drinking; me, I had a job, and I couldn’t afford to “piss dirty.”[FN 14]
While Mike and the girls were smoking I remember him (Mike) asking the girls if they wanted to buy some, and I remember Jason hearing this and asking or chiming in whether Mike could get him a pound.
And I remember Mike saying that he would have to call his dealer and find out if he had that much.[FN 15]
I remember while they were busy tracking it down, Jason asked me if I would take them to get the weed, and if I minded whether they took their
shotgun, “in case,” he said, “
those fools try to jack or something.”
Also while waiting on Mike’s dealer, I remember Tarah getting her camera out and taking pictures; and I remember her asking Mike to take our (Jason, Daniel, me, her, & Mindy’s) group picture, and he did (for more on the subject see ¶ 210 below).[FN 16]
On our way there Jason suggested we swing by Walmart (7451 McCart Avenue) real quick to pick up some more shells for their gun (the shotgun), and that we pull up alongside Mike and Andy and tell them to follow us there to get some more beer, and we did; we hung a left on
Sycamore from Crowley Road, and Mike and Andy followed us there.
When I came out, low and behold, my truck was gone, then Jason circled around and got me; he opened the door and got out to let me in like he wanted to drive, so I got in and sat in the middle, and he (Jason) pulled around to the back of the parking lot where he and Daniel had Mike and Andy waiting, plus he handed me his beer to make it look like I bought beer.
After pulling up beside Mike and Andy in the back of the parking lot and telling them we were ready to go, we hung a right on McCart and followed them to I-20 and exited on James Avenue (Crowley Road turned into James at I-20); I remember as we did looking up at the
overpass signs and thinking to myself
how bright and animated everything looked (the swig or two I took off Tarah’s and Mindy’s Smirnoff in and for the
picture was having a
weird effect on me), like I was in a cartoon or something.[FN 18]
At the apartments (5206 Southcrest Ct, Fort Worth, TX) Mike came up to my window and asked us (Jason) for the money, but we (Jason) told him that we (Jason) wanted to see it first; so, Mike left and came back, only this time he did not have a pound, i.e., he only had half-a-pound, and he wanted the money first, but Jason, of course, told him, “no,” and--that we (Jason) wanted to see first, and that “we” (Jason) would take the half pound.
So, Mike left and came back again, but only this time he did not have a
half-pound, but two ounces, and he said he did not really want to sell them, but that he had some
coke or ecstasy if we were interested, which we weren’t.
At this point because of all the back and forth we were already thinking it was a
set-up or something, and I guess it did not really help that I saw Mike sort of fiddling around with something in his waistband, so I did the first thing that came to mind and accused him (Mike) of being an undercover cop, and I reached over Jason and began to try to frisk him for a wire until Jason jumped into action and did so himself.
Next thing I knew some dude (Andy) was standing up at the front of my truck sort of looking like he was crouched down trying to
creep up on us.
Jason and Daniel apparently thought the same thing because they, both of them, got out; when they saw him (Andy) Jason bailed up out the driver’s side door and, without so much as a word, Daniel did too on the passenger side; I followed behind Jason.
After I got out Jason reached back in under the seat and pulled out the shotgun, which he had loaded while Mike was running back-and-forth between the apartment and us, and used it to pin Mike up against the neighboring car, which we were parked beside, with the barrel pointed to the sky, and demanded him (Mike) his wallet, then he (Jason) bumped him in the head with the barrel as if to hurry him along and show him we (he) meant business (for more on this topic, see ¶ 218 below).
About that same time Daniel, who had exited my truck from the passenger side and circled around the front of my truck to get Andy, stole (punched) Andy in the face and knocked him into the neighboring car, which caused a loud noise, and which caused Jason to turn his attention to Andy; he turned the shotgun on him (Andy) and ordered Daniel to get his wallet too.
When Jason did that, though, Mike decided to run and take cover, to
return fire or something, which only caused
Jason to turn, chase, and fire at Mike (just like all the cops we see now-a-days in the video’s on TV,
i.e., the old famous "Halt, or I'll shoot.", e.g.,
1, or
2), but Mike kept going.
From there he (Jason) drove back to the pond where Mindy and Tarah were supposed to be, but Mindy and Tarah were gone; as we were pulling into Crowley on Crowley Road
rounding the bottom of the hill (the intersection wasn't there then), there was Tarah and Mindy in Tarah's car driving real slow.
Tarah called me, but my phone went dead, and I plugged it into the charger into the cigarette lighter and called her back and she told me to follow her to Kodi’s where they were going to drop off her backpack for her for school the next day (this is the one phone call mentioned above. (See ¶ 78, FN18 above, & ¶ 213 below).[FN 19]
Then from Conoco we went to Tarah’s (624 Smith Street) where we all got out and went in; once inside Mindy and Tarah asked us what happened, and we told them--we made it no secret what happened (we were very vocal about it).[FN 21]
Because we couldn’t all stay the night, Tarah said,[FN 22] because it was a school night or whatever, and because they didn’t want me to get my truck back out on the street, Jason asked Tarah if she would take them to Daniel’s while Mindy and I waited there.[FN 23]
Friday on 2-22-02 I woke up at Tarah’s and went to work, then after work, my coworker at the assembly plant, Daniel something-or-another (I don’t recall his last name), and I went to his mom’s, where he was living, and we chilled there.
Later, that night, early that next morning (2-23-02) his girlfriend, who had come over, left then we left and went back to my house in Benbrook, then we crashed out there (Daniel on the floor).
Later that morning, Saturday 2-23-02 around 10 a.m. we woke up and I took Daniel back home; later I left and went to a guy’s house whom I knew through Brett named Coker (John Bradley (DOB: 10-19-76)) who lived on the southwest side of Fort Worth (1532 Eastview Street (3 APP 15:7)).
Later, Brett called me to see where I was at, and I told him; then he showed up with his girlfriend (Victoria; Tiffani’s half-sister’s (Megan’s) stepsister) “just to say hi!
When we got back there was a car broken down in the middle of the street that wasn’t there when we left (3 APP 181), and a police car parked on the opposite end of the street in the cul-de-sac that I didn't remember being there either (3 APP 180).
Brett and Victoria were also in Victoria’s mom’s (Eloisa Chata Gonzales Finch (DOB: 6-27-66))
black two door Ford Explorer leaving Coker’s in the opposite direction (3 APP 177), and we rolled down our window and we asked them where they were going and they told us that they had to get Victoria’s mom’s car back
home before she had a fit.
We went inside, but I did not really think anything of the police car in the cul-de-sac because it was not altogether unusual to see police cars parked alongside the road within that neighborhood; we just assumed they lived there, and the city let them drive their cop cars home after work.
A little while later a cop [FN26] knocked on the front door and some girl there answered it and a cop (Keith Alan Savoy, badge #2752) barged in with his gun drawn and ordered me off the couch and on my knees with my hands behind my head and I complied, but he kicked me in the abdomen anyway, which caused me to clutch forward and fall face-first on the ground (3 APP 15:40-41); they were playing, "Want you take me to Funkytown (1980)."
After they cuffed me, they took me out the front door to one of their cop cars and they (Sgt.
Donald Thomas Hanlon, badge #2386 (DOB: 10-31-64), &
Raymond O. Bush, badge #3028, took me to a building off Bolt Street (3128)(See also (3 APP 15:48)) on the southwest side of Fort Worth; before we left I asked one of them (Hanlon) if I could call my folks to get my truck; but he told me,
"No," that they would "take care of it[,]" and he (Hanlon) fished my keys out of my front pocket (Ofc.
Joseph F. Shipp, badge # 3101 (DOB: 11-17-71), the author of this particular report, omitted this particular detail (3 APP 15:49-52), as will become more apparent why, as you read further).[FN27]
At the building off Bolt I was led through an empty room with a bunch of empty or partially empty pizza boxes and two liter coke bottles (like somebody, perhaps the
wolf-pack who had just arrested me, had just had a birthday party or something) and placed in a small room off to the side the size of a closet and, sometime later, a
very short lady whom I had never seen or met before a day in my life came in, sat in a chair opposite me, and introduced herself as “Detective
Smith” and asked me about two guys whom she said had been “injured” on the previous "Thursday" (3 APP 22:20)
I told her flat out to talk to my lawyer (I was still feeling sort of jilted after my beating from Savoy); that I had nothing to say to her;[FN 28] she did not seem to like that; she got up and closed her file folder or whatever and left the room (3 APP 22:23-24).
I waited there for what seemed like forever before I was eventually taken downtown Fort Worth (3 APP 15:48-49 and
61) where I stayed in a jail cell on the floor until around six the next morning when I saw a Magistrate Judge (although in all her other warrants she mentioned them explicitly by name (See, e.g., (3 APP
24:25), nowhere did Charla mention this one’s name!) and my bail was set at, you guessed it, $100K (3 APP 62)(1 CR 8), then I was taken to the
Mansfield Detention Center (MDC).
After about two weeks of being at Mansfield Jail on 3-7-02, I was transferred back to Fort Worth (Tarrant County Jail) where I remained until I was sentenced and taken to prison.
When I got to the Tarrant County Jail I encountered several other prisoners who had also been kept at the Mansfield Jail and who were attempting to mount a lawsuit against Fort Worth and Mansfield because of the deplorable living conditions there.[FN 29]
From what they were saying, it appears Mansfield underbid Fort Worth to house Fort Worth prisoners to help alleviate some of the overcrowding Tarrant County Jail was experiencing because of Fort Worth; it wasn’t hard to see how they were able to underbid them either.[FN 30]
The whole time I was there two or three toilets were broken with feces in them, with just a trash bag wrapped around the bowl, i.e., if we were that lucky.
Plus, the two weeks I was there neither a janitor cleaned, mopped, or disinfected the forty-man tank I was in, nor were we given supplies to do so ourselves.
Most people weren’t there long enough to notice anyway (about two or three days; about how long it took to get booked into Tarrant County Jail), but for some reason Fort Worth kept me there way longer than anybody else whom I saw.
We were given neither linens to sleep or bathe with, nor did the showers work (there were two of them).
Even though it was freezing cold outside, inside the air was so thick and muggy you could cut it with a knife; plus, the lights stayed on 24/7 and I got very little sleep; you could hear people up all night coming down off heroin.
About a month before my trial was scheduled to begin Westfall (Greg) visited me in the jail to discuss a motion (1 CR 72)(2 CR 27) the state (Michele Bernadette Hartmann† (DOB: 7-20-66)(6216 Bowin Dr, Fort Worth, TX, 76132-5003) filed on 11-13-02 (which I did not see or read) wanting to accuse me of more offenses at the trial for the incident with Mike and Andy (pin a
cold case on me in the most under handed of ways); at first I thought he was talking about the misdemeanor offense I was out on
bail for when I was arrested for this felony back in February because we talked about it too.
Specifically, I thought he was talking about when I was arrested for possession of marihuana (as opposed to marijuana) under two ounces, when I was first mistaken for
Tony Durham (DOB: 11/8/78)(DOD: 8/1/14), then when it was discovered that I was not him, I was further mistaken for either Jason or his friend
Billy Hunt (DOB: 10/24/83)(Jamie Nichols’ boyfriend)(3 APP 137) who, before the cops arrived, after apparently cheering Tony on to kick the shit out of some dude’s (Robert Lee Haynie’s, DOB: 6-23-52)(DOD: 4-5-04) car, walked over to or broke off and went to Burger King to avoid arrest while Tony and I went back to my truck where, Tony and I were arrested (me in place of Jason and Billy).
Westfall (Greg) said that wasn’t it, however, and that there was another incident in or near Granbury, but the only other thing that I could think of was that incident with Brett after Valentine’s Day off or by Old Granbury Road (discussed above in Chapter 7)
Only the date didn’t line up; and he asked me where I was Friday, February 22, 2002, and Saturday, February 23, 2002, and I told him that I was with my coworker, Daniel, and I rehashed the same story above (See Chapter 10), and that he could check with my folks to see what time I got there
(SHCR 116, last ¶, last sentence). That I thought it was about midnight.
The incident with Tony, Jason, and Billy occurred on Saturday 8-18-01; Jason and I did a small moving job for my stepdad, Corey. Afterward, Corey gave me $200; one hundred dollars was for me, since I drove the truck and ran the job, and $80 was for Jason. I was supposed to break the $100, give Jason $80, and Corey back $20. But I never got the chance (See (3 APP 285))(after it was all said and done,
Jamie Nichols, Billy Hunt's girlfriend, said that Billy told her that Jason and he (Billy) found the $100 and went to Burger King (see below); it was the most expensive adventure of my young life: not only did I pay Corey back the $80 he gave Jason (Jason and Billy went back there after my arrest (i.e., Jason got paid twice), then to the
Point at Benbrook Lake), but the Ft. Worth PD pound
wouldn't let my folks have my truck for three days because they get paid by the day (bond, the pound, and Jason, plus all the money I had to my name)).
After Jason and I left (Jason was living with us again, somehow, (he (Jason) had a way of just sort of moving in) because he was helping me and Corey run the moving company), we picked up Jason's friend, Billy (See above), and our friend, Tony (See above); Tony had a keg, and we were going to get it filled for Jason’s 18th birthday party later on that night (Jason's bday was the 15th, but the 18th was a Saturday in '01, so we had it then).
At first we were going to get the keg filled at Majestic Liquor Store off I-20 and I-35 (5900 South Freeway, Fort Worth, TX 76134), but because Majestic didn’t want to fill somebody else's keg, Majestic supposedly told Tony we could go to Two Bucks up the street off I-35 and Felix Street (4702 South Fwy, Fort Worth, TX 76115) because they would not only probably fill it, but they would also give us free cups.
So, Tony came back to my truck and we went up the street to Two Bucks. I exited I-35 for Felix. I turned left over the bridge. I passed the south bound access road and continued west down Felix Street until I came upon the entrance to the parking lot where I hung a right to enter it (3 APP 290). As I was pulling into the parking lot surrounding the store, some guy (Robert Lee Haynie (See above)) came speeding across the parking lot and almost
plowed right into us (3 APP 290). I had to
honk my horn to get his (Haynie’s) attention, or to let him (Haynie) know that I was there or to notice me (See also
here and
here).
His car came to an abrupt stop, rocking back and forth like the shocks were out. Then the driver (Haynie) through an empty beer bottle at my brand new truck like it was my fault that he almost hit
us. But it (the bottle) fell short and, in response they (Tony)
flipped him (Haynie) the bird and I pulled around him (Haynie) and up to the double doors in front of Two Bucks on the other end of the parking lot (3 APP 290-291).
I parked thinking Tony was just going in to check on the keg, then they would come back with a
dolly or something to get it to fill. Tony still had the $100 bill that I gave him from when we stopped at Majestic. But to Tony, I guess, it wasn’t over. He tore-ass out of my truck to go try and catch that dude (Haynie) for
throwing a beer bottle at my truck.
Tony’s dad owned a junkyard off Mansfield highway, and Tony took pride in cars. First this guy (Haynie) almost hit my brand new truck with his old red
hoopty. Then, to top it off, he threw an empty beer bottle at my truck like it was my fault he (Haynie) almost hit us.
So, Tony bailed up out of my truck and went to see if he could catch this guy (Haynie). I figured he (Haynie) was long gone.[FN 31] Jason and Billy who were in the back of my truck with the keg, got out to follow Tony. I sat in my truck in front of the store thinking they were, of course, wasting their time because I thought he was long gone.
Next thing I knew, though, was Tony, Jason, and Billy came walking back up to my truck talking about how he (Tony) lost my money.
Aghast, I asked him (Tony) where he thought he may have lost it, and I made him (Tony) show me. Jason and Billy followed. It was somewhere behind the Burger King parking lot (4728 South Freeway, Fort Worth, Texas 76115-3515), which is now, according to the pictures from
Google Map, a Cesar’s Taco (3 APP 290).
While we were looking for my money, Jason, Billy, and Tony kept talking about the cops coming, but I wasn’t quite sure for what, since I didn't see what took place or occurred on the opposite side of the building (to make matters worse, the sally port or extrusion was not there then)(3 APP 291). Eventually Jason and Billy broke off and went into Burger King (now Cesar’s Taco). At that point Tony and I gave up and went back to my truck. As we were getting into my truck, a Fort Worth cop car (Robin E. Moore, badge #3117) rushed in to block my truck from leaving (3 APP 275:30-32).
Next thing I knew three cops (apparently Moore, Robert W. Thetford, badge #3139, & Permsookjit, badge # 3208) appeared at my door and tried to rip it off the hinges (3 APP
275:33,
276:31,
285, &
289), but the automatic locks prevented them from opening it until I unlocked it for them to see what they wanted.
When I did that, the cops (Thetford says it was Moore (3 APP
275:31-33, and
278:6-8), but yet all their superiors asked Thetford about it, not Moore (3 APP
278:4-5, and
283:55-56)
yanked it open, reached in and pulled me out by the back of my neck, then they picked me up by the legs and arms, carried me a few short feet away from my truck, and threw me down face first on the hot summer pavement from about five feet up. Then one of them
drop-kicked me with their knee in the middle of my back, and the other
stomped on my head with their boot, like I was trying to
resist, which I assure you I was not
(if I was really attempting a resist (never mind a little Rodney King action), they would've no doubt
tacked an additional charge of assault on a
peace officer
onto my reason for arrests, especially considering, as discussed more below,
their (including later the ADA) attempt to justify my arrest
when they realized their mistake (my arrest). Lord forbid they hurt
themselves). Then they tried to break my arms by bending them in a way that they don’t normally bend so that they could cuff me. Then they picked me up like a lunch box and tossed me in the back of one of their cop cars like
a piece of crap.
Next they walked up to the passenger side of my truck and got Tony out all gentle like and turned him around to cuff him and walked him around to another cop car.
Next I saw one of the cops (Thetford) get in my truck to search it, then motion to his partner (Moore) with his fingers up to his lips like he was smoking a joint like he found some weed (3 APP
275:34-36, and
276:24-26). Then the same red hoopty pulled up, and a guy (Haynie) got out, reached in his back seat, got some crutches out
(laid it on think, and probably take away from his drunkenness
(DUI)), then hobbled around the cop cars that Tony and I were in (3 APP
276:39-40 and
279:57-58 i.e., first Haynie identified me, then he didn't).[FN 33]
Lastly, before Tony and I were carted off to jail, I looked back to see Jason and Billy, amongst several other on-lookers in the Burger King looking out the big glass window laughing their asses off at my misfortune (3 APP
276:38-39 and
290).
And Haynie, who, according to Thetford, was beat to within an inch of his life (3 APP 275:51-58), refused to go to the hospital (3 APP 276:36-37).
At Tarrant County jail Tony and I were placed in a holding tank in the basement with several other men awaiting our turn to get
booked in. It was there and then that I learned what happened.
Tony told me that when he got out and went around the corner of the store that that guy (Haynie) was stalled out still at the entrance/exit to the parking lot and that he pretty much went ape-shit on his (Haynie’s) car (3 APP 275:42-47), but that the only contact that he had with the driver (Haynie) was when he (Haynie) threw open his door to get out. That Tony big-chested him with his hand and pushed him in the chest back down into his seat.[FN 34]
Tony told me that he was sorry for getting me in trouble, and that he would tell the cops that I didn’t have anything to do with the assault. I asked him about the “weed” that I was being booked in on, and that I didn’t have any damn weed in my truck. Tony told me that he was sorry for that too, and that he would tell the cops that the “weed” was his too. That he slid it in the console of my truck when the cops yanked me out of my truck (3 APP 276:25-26). Tony said that he would take responsibility for that too.[FN 35]
About three days after I was arrested (Tony’s older brother Curtis bailed him out like on that first day (3 APP 279:64-280:5), on 8-21-01 Thetford’s and Moore’s supervisors, Bridges and Det. Bryan K. Stevens, badge #2698 or the detective assigned the case for follow-up investigation, began trying to justify my arrest upon other grounds that I was intoxicated (3 APP 278:8-11), though not once in the original narrative was anything ever said about anybody ever being intoxicated (3 APP 275-276).
Detective Stevens again reiterated the fact that he would not be filing charges against me for being a party to the assault (3 APP 278:16-17), though again nobody, not one single person, claimed to have heard me
encourage Tony to assault Haynie (3 APP 275:54-55)(TEX. PENAL CODE § 7.02(a)(2)).[FN 36]
Haynie had still not gone to the hospital and was apparently falling down drunk all over the place when Det. Stevens followed up the investigation against Tony for the assault (3 APP 279:54-56 & 279:58-61).
On 9-17-01 the DA’s office contacted the Fort Worth P.D. to try and build a case out of my arrest for being intoxicated (3 APP 286), or follow up arrest for being intoxicated, thus giving them reason to legally search my truck (3 APP 280:16-17). That the marihuana in the console of my truck was mine (3 APP 283:58-284:5). And that Jason and Billy weren't involved in the assault (3 APP 283:63-284:4), though, again, nobody, nobody, not one single person but
Thetford was alleging to claim this (3 APP275:62-276:23). They obviously needed to be on the same page going forward, less they open themselves (the citizenry, whom they were sworn to uphold/protect, not some 18 year old kid) up to liability, and they were doing just that. But why did they keep going to Thetfordwhen Thetford kept saying it was Moore? They weren't trying to sow confusion and discord surrounding the saga, were they?
I wound up hiring Jason’s lawyer,
Ed. G. Jones, to represent me (7 APP 6). He was in the process of getting the marijuana case cleared up when I got picked up with Jason and his Latin King homeboy, Daniel Aranda, for the robbery conviction about six months later (See (7 APP 7-9)).
It wasn’t until after I was back in the county on my appeal for the robbery case when the marihuana charge was resolved. The judge (Daryl Coffee) yanked me into court to account for the marihuana case(7 APP 13), then the court appointed
Y. Leticia Sanchez-Vigil to represent me in place of Ed (7 APP 15).[FN 37]
So, I was pretty much on my own from there on out. Leticia advised me to settle for time-served because:
a jury would never believe my uncorroborated, self-serving statements that the marihuana wasn’t mine, and that I didn’t know that it was in my truck (though I had no criminal record at the time of the arrest),
trial was scheduled to start that day (her day of appointment) and that the judge wouldn't waste the time or money to grant a continuance for her to go find Tony and bring him to court to tell the jury that it was his marihuana, and that I didn’t know Tony stashed it in the console of my truck,[FN 38]
even if I was mistakenly arrested for being a party to the injury to the disabled, that the marihuana would have still been found because Thetford would’ve just arrested me for flipping Haynie off (disorderly conduct)[FN 39] or a D.WI.[FN 40] or P.I.,[FN 41] but there was a two year statute of limitation she failed to tell me about,[FN 42]
even if the inventory search was valid, the marihuana would’ve inevitably been discovered,[FN 43]
if I fought the marihuana charge the judge would stack the sentence onto the end of my robbery sentence so that when I discharged it that I would have to start the sentence on the marijuana conviction,[FN 44] in such a likely event as that, she said, which she assured me was very probable, and
the marihuana conviction wouldn’t hurt my chances at making parole on my robbery conviction (though another year of my life was taken because of it)(6 APP 91).[FN 45]
Also, on 10-31-02, Tony was convicted by a jury and sentenced to three years for the assault on Haynie (5 APP 9).
On 7-24-19 I was denied parole for, in part, my substance abuse involvement or history (6 APP 91). The parole interviewer not only asked me about the possession of the controlled substance case, but he also asked me about the assault on Haynie. But when I tried to go into it, the interviewer (Harris) essentially cut me short to sum it up whether Haynie was seriously hurt, which I responded, no, as far as I knew based off what Tony told me that Haynie had not been seriously injured.
He visited again with a doctor in psychology/psychiatry named
Paul Edwin Johnstone (DOB 9-3-36)(DOD: 7-16-11).
In the first meeting Westfall (Greg) and Minick (Cheyenne) told me that:
the state would reduce my charges to aggravated robbery:[FN 46]
if I pled guilty to robbing and shooting Mike and Andy,
if I would accept responsibility for the extraneous at sentencing, and
the state would forever more forfeit their right to retry me on the original charges under the double jeopardy clause of the
Fifth Amendment and are procedural
statute on the matter.[FN 47]
He also told me that if they came after me that he would represent me on the extraneous if they ever came after me.
Beyond that he never asked me what I would take or what the state was offering; although my folks told me he said they were offering forty-years right out of the chute, our hope was probation and he left us, or at least me, with that impression--for the reasons discussed in the above ¶.
The first day of trial I noticed Billy Ray Junior's (DOB: 5-13-82; he lived off North Heights (204) in Crowley) grandma (Dimple Junior (DOB: 4-12-34)(2 RR 140:2)(she lived off Strickland (108) in Crowley)) who was one of my bailiffs; she practically helped raise me growing up, and I told Westfall (Greg) and Minick (Cheyenne) as much, to which they said, “good,” though I didn’t understand quite why at the time (that they were trying to lynch me for appeal).
[FN 48]
Billy’s grandma would later recount to me and my family that while she was tending to them during deliberation that she overheard them discussing the state’s extraneous accusations, my silence (acquiescence) thereto, and Westfall’s (Greg’s) closing argument for them to believe I committed the extraneous beyond a reasonable doubt because “we” (he!)
admitted it beyond a reasonable doubt (See the above ¶).
She said she heard it when they were asking for exhibits, pictures, or something and she was in charge of taking them to and from them (1 CR 83)(2 CR 38).
She also overheard them discussing the effects of parole in sentencing me to thirty-five years; instead of just giving me 17.5 years, they gave me 35 years to offset the effects of parole to make sure I didn't get out one day sooner than 17.5 years (Art. 37.07, § 4(a)) because “everybody knows the parole board paroles everybody,” i.e., whether they deserve it or not, right?
She said that two or three of the jurors[FN 49] were arguing back and forth about how much time to give me or something until she brought them the pictures; they evidently caved due to the fact they had nothing like the law (on potential criminal responsibility for the extraneous, for example) to apply and argue back on (See Chapter 17),[FN 50] and that even then it appeared to her one or two were still hesitant.
At jury selection I remember a few of the jurors sounding kind of opposed to our Paxil defense; I remember telling Minick (Cheyenne) who was sitting between Westfall (Greg) and me that I did not think it was good we let them serve, and I remember him telling me something to the effect that because there was no “presumption of innocence at the punishment phase”[FN 51] that there was no legal reason to strike them for-cause, and that we stood a better chance getting them with our peremptory strikes.
I also remember hearing a few jurors talking about or sounding like they were biased against me because they or their families had been victimized by theft or robbery; Minick (Cheyenne) again did not seem to think we could get them for-cause and again told me our best bet was at the peremptory stage.
At the peremptory stage though I was ushered back behind Gill's court room to a cell, and the peremptory strikes were made in my absence; when I was brought back into the courtroom, I did not know whether they got them or not,[FN 52] but apparently did not, based off the record; i.e., they neither got venire-persons number five (Stephanie Dean (DOB: 2/7/66), six (Cymbre Denise Blauvelt (DOB: 8/8/77)), seventeen (Lemons), twenty (Marva R. Thomas (DOB: 1/27/40)), and twenty-five (Barbara ? Chambers), nor did they get number twenty six (Timothy P. Fauble (DOB: 8/6/58)), or twenty-nine (Tina Marie Marack (DOB: 12/23/68)) who were both robbed at gunpoint the last of whom wound up being my juror foreman.[FN 53]
Although I told Westfall (Greg) the story many times, at trial when Mike, with his purple colored hair, Andy, Tarah, and Mindy,† with her Gothic black colored hair,[FN 54] testified, I told it again; what good it did though because they didn’t really seem to raise much of a fuss, but yet for some reason I still trusted them (fool I was).
And when Jheen Marie Ancira (DOB: 10/11/77), now
Jheen Marie Cater, said it was me I know I must have said something to the effect that she was mistaken, to say the least,[FN 55] and the same goes for
Ronald Thomas Fazio (DOB: 5-17-69) when he said the little bitty piece of metal (like a metal splinter)(which Westfall (Greg) appeared to have almost sneered at when it was passed down to our table for objections before it was admitted into evidence) was fired from the rifle, which sat in plain view of the jury all throughout the trial leaned up against the witness stand like a trophy until it too was admitted into evidence without objection.
When we recessed for the day (which was after the extraneous testimonies), I told Westfall (Greg) that I wanted to testify; we were behind the courtroom, and I believe I was in the holding tank, if not right outside it.
He told me that if I took the stand and told the jury that I didn’t shoot
Richard L. Weaver aka Rick (DOB: 12-20-79) that I would run the risk of alienating the jury with an uncorroborated, self-serving statement that I didn’t shoot Rick, and if I took the stand to rebut Mike, Andy, Mindy, and Tarah, that I would not only run the risk of alienating the jury, but that if I remained silent about Rick (so as to not alienate the jury there) that the jury would draw an adverse influence from my silence thereto.[FN 56]
In either case he said that any chance I stood at receiving probation would pretty much disappear, so I bit my tongue (I believed he knew what he was doing. Damn full I was.).
The funny thing about when
Robert Francis Foran (DOB: 12-24-60) asked Mimi Sue Parks (DOB: 4-28-64),[FN 57] and Mimi’s equivocal response,[FN 58] if the last time I told her and Wu when I took Xanax was before coming to jail is I stopped taking Xanax, or any other type of pill like that, etc., was the year before when my grandma got me enrolled in TRC, which would’ve been around
Thanksgiving 2001; another funny thing is right after Dr. Connell[FN 59] visited me in the jail, Foran had Mimi and Wu schedule (rebut) me this appointment where I supposedly confessed to them using Xanax right before coming to jail, i.e., that I was voluntarily getting intoxicated on the night of the crime.[FN 60]
And I told Westfall (Greg) and Minick (Cheyenne) as much; what good that did because they said it did not matter much because I was a “bad historian” (4 RR 171:23-172:23)(4 RR 219:2-3).
It is a funny thing; here I am reading my transcripts where Westfall (Greg) said I hit Tiffani in closing--I never hit Tiffani, or any other women for that matter, ever (I thought too much of them to ever want to hit one of them)![FN 61]
Here it says Hartmann asked the jury to begin deliberation at “40” years; I remember it like it was
yesterday "she asked them to begin deliberation at “30” years, and the jury came back five more, not five less.[FN 62]
I guess it appears like Westfall (Greg)’s trial strategy was somewhat effective in that, although I didn't get the probation, or the ten years he was asking, I at least didn’t get the “40” years Hartmann was asking.
I also remember two or three of the jurors crying when they re-entered the
courtroom after deliberation on my sentence; it wasn’t a good sign, or so it
looked"they caved to the majority, or so it appeared (See Chapter 17).
After the jury was dismissed and I was taken behind Gill’s court room to my cell to change into my prison garb and shackled, but before I entered the cell, Minick (Cheyenne) leaned up against the door, blocking my way to sign a piece of paper, then he handed it to me to sign before I entered the cell and the bailiff, Mr. Darusha (2 RR 140:4), closed the door.
Shackled and in my prison garb, I was “escorted” back out into the courtroom where I got to hug my family one last time.
Next, Westfall (Greg) had me sign a few motions to start my appeal and I was off (1 CR 128-129)(2 CR 67-69); Westfall (Greg) seemed
cagey; Minick (Cheyenne) seemed excited, and it was catchy, but I was unsure why.
They told me the appeal lawyer friend (Wynn (William Reagan)(DOB: 12/20/70)† of whom they were having Gill appoint me (1 CR 129)(2 CR 69) was
"very
good", like my case would not stand up on appeal.
Unfortunately for me, when I got back to the cell block an older guy from Crowley whose name was Tony L. Gregory (DOB: 5/23/66),[FN 63] after talking to me, he took it upon himself to write a state bar grievance against Westfall (Greg), and encouraged me to sign and mail it, like it would help my appeal; and he watched me sign and mail it.
Not only that, but after we did that I called my folks and told them and they also filed one on not only Westfall (Greg), but Hartmann too who, according to my mom, made fun of her with her pregnant lawyer friend (D.D. Handy)[FN 64] for crying by saying “Oh! boohoo!” Like it was no big deal for her or something.
I wasn’t on the Allred Unit for two weeks before I was in a Tarrant County Sheriff Officer’s van on my way back to Tarrant County jail.
When Gill asked me if I was indigent, I especially remember saying yes, that “it” (the money out of my trust) “was given to my grandma. And that “[s]he spent the money trying to get me less time”. Not, “[i]t was given to my grandma”. And that “[s]he spent every bit of the money trying to get me out during that time” (1 ARR 3:3-13).
They make it sound like she was just like, “Oh well” and went on with her life; I not only remember this because I was trying to hint around at less time, but also because the same bailiff at my trial, Mr. Darusha told me on my way back to the holding tank behind Gill's courtroom, “good answer,” me hinting around at less time.
When Gill found me indigent and the court appointed me
Paul Francis (1178 W Pioneer Pkwy, Arlington, TX 76013) ,[FN 65] Hartmann, who was sitting perched in the middle of the jury box the whole time, interjected, “judge!” like she didn’t want me to get a free lawyer, or like she didn’t want them to do what they were about to do to me (derail my appeal,
or maybe she didn't know they were cooking the books and wanted me
to pay) through my substitute appeal counsel (Francis) and the ensuing
Ander’s (No-Merit)(malpractice) brief, which Gill charged me $1,000 for (1 CR 86)(2 CR 41), that followed.
But Gill cut her off before she was able to say whatever she was hoping to say in front of me, and I was returned to jail and prison, and the outburst deleted from the record like she was never even there (1 ARR 3:19-21).
When I received notice from Gill’s clerk (SCR 2-3) who (Francis) had been appointed me my direct appeal, I wrote and rehashed the same story above, but much like Wynn (William Reagan), except for this, he told me that he had been appointed much
"too late" to amend my motion for new trial (1 CR 134)(2 CR 78), or to otherwise get my statements into the record by way of an order from the intermediate
state appellate court (3 APP 231)(3 APP 240-241),
and that he could not argue the same because it was outside the record; Wynn
just flat out refused to answer me. But seeTrevino v. Thaler, 569 U.S. 413 (2013)
on abatement hearings as a means of getting evidence outside the record into the
record for direct appeal review:
Respondent argues that Texas courts enforce the relevant time limits more flexibly than we have suggested. Sometimes, for example, an appellate court can
abate an appeal and remand the case for further record development in the trial court. ... But the procedural possibilities to which Texas now points seem special, limited in their application, and, as far as we can tell, rarely used. ...
Cooks, for example, the case upon which respondent principally relies, involved a remand for further record development, but in circumstances where the lower court wrongly failed to give a defendant new counsel
in time to make an ordinary new trial motion. ... We do not believe that this, or other, special, rarely used procedural possibilities can overcome the Texas courts' own well-supported determination that collateral review normally constitutes the
preferred--and indeed as a practical matter, the only--method for raising an ineffective-assistance-of-trial-counsel claim
(emphasis added).
So, I asked him about the
chargeerror
as it related to my potential criminal liability for the extraneous, but he argued
or told me there was no sufficiencyreview of punishment evidence (double talk) and that he was not going to therefore argue
the insufficiency of mypotential criminal liability
or responsibility of the punishment evidence (double talk), i.e., that it was not appealable (Signed 5-16-03).
But seeSchlup v. Delo, 513 U.S. 298, 330 (1995)
discussing:
Actual innocent [Murray v. Carrier,
477 U. S. 478, 496 (1986)] is by no means equivalent to sufficiency of evidence [Jackson v. Virginia, 443 U. S. 307,
324 (1979)].
And so,
see,
Dretke v. Haley, 541 U.S. 386, 391-392 (5-3-04):
The Court of Appeals for the Fifth Circuit affirmed, holding narrowly that
the actual innocence exception “applies to noncapital
sentencing procedures involving a career offender or habitual
felony offender (emphasis added, citing).”Haley v. Cockrell,
306 F.3d 257, 264 (5th Cir. 2002):
We now
hold that the actual innocence exception applies to
noncapital sentencing procedures involving a career or
habitual felony
offender(emphasis added, citing):
Our decision in Smith v. Collins ... assumed without deciding that the [the applicability of the actual innocence] standard
[to noncapital sentencing procedures
]
would so extend and, on that assumption, announced the test we use here today.
... We again decline to resolve this issue and merely assume, arguendo, the
applicability of the actual innocence standard to
non-capital sentencing(emphasis added, citing):
Assuming, without deciding, that the actual innocence exception
can extend, in the abstract, to non-capital sentencing procedures, we
are convinced that actual innocence in a non-capital sentencing case
can be no less stringent than the Supreme Court's formulation of
actual innocence in capital sentencing. To that end, actual innocence
must mean something more than a simple demonstration of prejudice (citations omitted).
In response, I was bench warranted back to the county jail where I stayed with the same jail house lawyer (Tony Gregory), who talked me into filing the state bar grievance against Westfall (Greg), for the remainder of the year reviewing my punishment proceeding records (CR & RR) and preparing my pro se appeal brief.[FN 66] See, for example:
1,
2,
3,
4,
5,
6,
7,
8, & / or
9. All these are his handwriting.
Tony, however, like Francis, told me that the only thing I could complain about on my appeal was the voluntary nature of my guilty pleas, then he told me I was incompetent to enter guilty pleas because, if I was insane on Paxil when the crime occurred, then I was also incompetent on Paxil, which I was still on when I entered my pleas (Tony drafted my brief (in haste I might add; before catching chain to TDCJ)[FN 67] then
my grandma typed it).
Tony suggested we gather affidavits to attach to my brief, since it was too late to add them to my motion for new trial (he evidently didn’t know how to get them into the record otherwise; I surely did not).
One of them we gathered was from Jason; the idea, according to Tony, was incompetence and guilty pleas; so, we got affidavits oriented in that direction.
So, I wrote to him and he wrote to me; we had to send the letters through my mom because of some new policy T.D.C.J.[FN 68] had implemented regarding inmate to inmate correspondence, so it was few and far between.
I remember him (Jason) asking me or my mom how the cops or D.A. got the pictures of him, his older brother (Jeremy), and
Jake Hardin with the money, marijuana, jewelry, and Latin King gang-signs (3 APP 126-140), and I remember my mom telling me that she told him that the Fort Worth Police Department must have found them in his stuff that he left at our house from one of the times he lived with us when they ransacked my storage building looking for the shotgun, apparently without a warrant.[FN 69]
He said his lawyer told him that he would have gotten probation if it was not for those pictures.
Next thing I knew Mowla put not only me on his visitation list when he came to visit Norrid, but he also put Tony on there too; he brought us legal tablets, a few case laws (see e.g.,
Ex parte Tuley, 109 S.W.3d 388 (Criminal Court of Appeals 2002)) plus some stuff on filing an out of time motion for new trial.
So then and in the coming months I rehashed the above story one more time(this time for Mowla) and complained to him (Mowla) that Westfall (Greg) and Minick (Cheyenne) were ineffective for failing to argue I didn’t rob or shoot Mike and Andy, either as an accessory, because of the involuntary nature of my intoxication (Paxil), or as a principal, and I didn’t shoot Rick, both beyond a reasonable doubt or otherwise
And I even pointed out something to the effect where, in-court and without Fort Worth Police Department Detective Charla Beth Sheeran-Smith’s help:
the guy whom Mike identified and who he referred to as “Bart” (in-court) was blond headed,[FN 75] and the only person blond headed out there that night beside Mindy[FN 76] was Jason;[FN 77] and
Andy was unable to identify me, even when suggested by Foran who was sitting beside the officer.[FN 78]
I also pointed out where Charla probably improperly influenced the pretrial identification procedures of Mike and Andy:
because the group photograph was present and they (Andy & Charla) were discussing it when Charla
asked Andy to identify Daniel (Aranda)(and no doubt me too);[FN 79] and if Charla used the group photograph to aid Andy’s identification, she probably did so with Mike, especially if, as discussed more under Subchapter “E” below, he didn’t identify me until after I was arrested.
I also pointed out where Charla probably improperly influenced the pretrial identification procedures of Mike and Andy because she (Charla) believed or wanted to believe Jerri (Deann Westmoreland (DOB: 8-25-62)) and Mindy, and later Jason and Tarah, plus whoever else they (the “Crowley Kids” (See ¶ 3 above)) could find to corroborate their self-serving statements, i.e., circle the band wagons:
that I told Mindy and Tarah that “[I]” robbed and shot Mike and Andy, or that it was a "rush", "thrill", etc., for me to do so (See, e.g., ¶ 227.1 below)
that I robbed and shot other people (See, e.g., ¶ 227.3 below);
that Jason told Mindy that Daniel told Jason that I told Daniel that I was going to have to kill Jason and his mom (Ellen Dexter)(why in the world her? She did nothing, even if true)(See, e.g., ¶ 227.4 below);
that they saw me prowling around outside their houses early 2-23-02,[FN 80] and that they were scared that if I found out they were talking to the cops that I would kill them;[FN 81] and
that I told Mindy that I was fixing to flee to Mexico to avoid my impending arrest (See, e.g., ¶ 227.5 below).
I also pointed out where Charla probably improperly influenced the pretrial identification procedures of Mike and Andy because she (Charla) ignored or probably even encouraged Mindy and Tarah to lie they had to drive down Jason’s (Tucker) street (Water Street) to get to Lucas’s (Tucker)(who was dating Tarah) street (Race Street), and that I was at Jason’s house when they got out of school, presumably at about 12 p.m.,[FN 82] since they got out early, and obviously no later than 3 p.m., because:
it was probably easier for them, and whoever else they had willing to come forward to corroborate them, or more encompassing for them and their friends (i.e., more friends, more witnesses), to include me from beginning to end.
I also pointed out where Charla ignored and/or probably even encouraged Mindy and Tarah to lie I was at the lake with them because as Jason even said, we didn’t meet up with them until right before we went to the pond (i.e., at Tom’s),[FN 84] and because it was probably easier for them, and whoever else they had willing to come forward and corroborate them, to include me from beginning to end.
I also pointed out where Charla ignored and/or probably even encouraged Mindy, Tarah, or Mike to lie Jake (Hardin), Kodi (Morris), and “Rocky” were at the pond because:
as even Andy[FN 85] and Jason[FN 86] said, it was only Tarah, Mindy, Daniel, Jason, and me,
even if they were there, Mindy[FN 87] and Tarah[FN 88] said they left to go to Sonic to get something to eat before Mike and Andy got there,
Mike maintained steadfastly they were still there[FN 89] and
Mindy[FN 90] and Tarah[FN 91] flip-flopped at trial whether they were still there.
I also pointed out where Charla ignored and/or probably even encouraged Tarah to lie I told her that I took Klonipin[FN 92] because the last time I took any kind of pill like that was back before I got accepted in TRC,[FN 93] and because it helped sell their story that I just flipped out and went crazy and shot Mike and Andy.[FN 94]
I also pointed out where Charla ignored and/or probably even encouraged Mindy and Tarah to lie we had my shotgun out there at the pond that night because mine was stolen some twenty-six (26) days prior to on 1-26-02.
See (Ch. 2, ¶ 16).
I also pointed out where Charla ignored and/or probably even encouraged Mindy[FN 95] and Tarah[FN 96] to lie Jason was in the car with them when “we” (“Daniel and I”) got the shotgun out and shot it because we (Mindy, Tarah, Daniel, Jason, and I) all took turns shooting it,[FN 97] and because Mindy[FN 98] and Tarah[FN 99] flip-flopped at trial whether Jason shot it.
See, generally,
here.
I also pointed out where Charla ignored and/or probably even encouraged Mindy, Tarah, and their network of South Crowley high school friends[FN 100] to tell Mike and his[FN 101]”and for Mike to tell Andy,[FN 102] since Andy went to North Crowley[FN 103]”that we approached them (Mike & Andy) first and asked them for a pound because:
Mike[FN 104] and Andy[FN 105] said when they first got there Jason and Daniel were still mudding in Tarah’s car,
Jason said they had already pulled up to see who they (Mike & Andy) were when I supposedly asked Mike if he had a pound of marijuana,[FN 106]
I couldn’t have leaned in the window and asked Mike and Andy for the pound when they first got there because Jason said he heard me ask them, and Mike and Andy said they were still mudding when they got there,[FN 107]
Mike initially lied to Charla he was there facilitating a drug deal,
that was probably what Mike told his dad (Arthur Robert Williams aka Art (3 APP 10:46-47)(DOB: 10-2-54)), who was apparently a
truck-driver, who is apparently a
pervert, to say the least, because he was scared of him (Art) or that he would get in trouble,[FN 108]
Mike lied how many people were there when he got there (See Subchapter D.3), and
after talking to Mike, Charla probably finagled out of Mindy and Tarah the narrative that I approached Mike and Andy first, i.e., in exchange for their cooperation (steering the investigation around them).[FN 109]
I also pointed out where Charla ignored and/or probably even encouraged Mindy,[FN 110] Tarah,[FN 111] Mike,[FN 112] and Andy[FN 113] to lie that Jason and Daniel, and not Mindy and Tarah,[FN 114
]smoked the blunt with Mike and Andy because:
neither Mike nor Andy could even come to agree upon whether Jason and Daniel smoked,[FN 116]
Mike probably omitted that part of his story to his dad then to Charla to fit his limited interaction narrative to his dad[FN 117] until directly pressed by Charla hereto after talking to Andy who said he was talking to Daniel while Mike was talking with the others and “rolling a blunt,”[FN 118]
Mindy and Tarah and their network of South Crowley High School friends probably persuaded Mike and his network of South Crowley High School friends, plus then Mike to tell Andy since he went to North Crowley High school., to omit Mindy’s and Tarah’s smoking for their (Mindy’s & Tarah’s) sake of facilitating the robbery,[FN 119]
Mike initially lied/omitted that part of their story (smoking) to Charla, apparently until after she talked to Andy[FN 120] then followed up with Mike, and
neither Mindy nor Tarah said anything about either Jason, me, or Daniel smoking (3 APP 77:19-31)(3 APP 81:27-36).
I also pointed out where Charla ignored and/or probably even encouraged Mindy,[FN 121] Tarah, and Mike[FN 122] to lie I leaned in the window and asked Mike and Andy if they could get me a pound because:
Mike and Andy disagreed that was how the interaction occurred,[FN 123]
Mike flip-flopped between Charla and Hartmann who asked him for the pound,[FN 124]
when asked to identify me in-court Mike identified Minick (Cheyenne), who had blond hair like Jason,[FN 125] and
Jason[FN 126] said he heard me ask Mike and Andy for the pound and, if Jason and Daniel were still mudding in Tarah’s car when Mike and Andy pulled up, then I couldn’t have possibly walked up to Andy’s car, leaned in the window, and asked them if they could get me a pound.[FN 127]
I also pointed out where Charla ignored and/or probably even encouraged Mindy,[FN 128] Tarah,[FN 129] and Mike[FN 130] to lie that Mike used my cellphone to call his dealer and Paul (Griffin) for a pound of marijuana because, if Mike used my cell phone rather than Tarah’s (her mom’s (Sherry Green’s (1 CR 88)(2 CR 48)):
I would’ve most likely gotten a phone call from Paul or the cops,[FN 131]
Charla would’ve most likely gotten my number from Paul to call me, or prove Mike used my cellphone to call Paul,[FN 132] and
Tarah wouldn’t have lied that she used Mindy's mom’s (Jerri) cell phone to call me at Walmart, i.e., they were trying to skew any possible investigation thereafter by the defenses.[FN 133]
I also pointed out where Charla ignored and/or probably even encouraged Mindy, Tarah, Mike, or Andy to lie either Kodi took the group photograph or that Mike did not take it because:
Mindy and Tarah initially lied to Charla by omission about the photograph,[FN 134] at least until Foran sent Charla to have them view the Walmart video and probably asked them if they called me while at Walmart and, probably after a “Yes”, Mindy apparently redirected and distracted Charla with reference to the photographs (which obviously complicated the matter for Charla’s original narrative because now she had to broaden their limited interaction narrative),[FN 135]
Mike initially lied to Charla by omission about the photograph,[FN 136] at least until Charla attempted to rectify her original narrative with a new narrative,[FN 137]
Mike flip-flopped at trial whether he took the picture,[FN 138] and
Andy lied byway of omission, i.e., to Charla, who took the picture.[FN 139]
I also pointed out where Charla ignored and/or probably even encouraged Mindy and Tarah to say and/or lie that I asked them (Mindy & Tarah) for a ride or if they wanted to go, etc., because:
I obviously had a ride (6 RR SX 37), i.e., it was Jason and Daniel who did not,[FN 140]
why would I ask them if they wanted to go or for a ride?[FN 141]
Mindy[FN 142] and Tarah[FN 143] flip-flopped at trial who asked them, and
Mindy[FN 144] and Tarah[FN 145] flip-flopped whether Jason was in the car with them, separate and apart from me when I supposedly asked them.
I also pointed out where Charla ignored and/or probably even encouraged Mike and Andy to say or lie I told them to follow us to Walmart or why (for beer) because:[FN 146]
Mike said they didn’t learn why they were at Walmart until they got there,[FN 147]
I also pointed out where Charla ignored and/or probably even encouraged Mindy[FN 151] and Tarah[FN 152] to say and lie they called me at Walmart or that I told them I was there buying bullets because:
the Walmart video itself shows I didn’t talk to anybody on the phone while there,[FN 153]
Tarah by her own admission, said she only talked to me once, while we were gone and that Walmart was obviously not it,[FN 154]
Foran probably “asked” Charla to “ask” Mindy and Tarah if they called me while we were at Walmart when Charla went to Foran on what to do next and he (Foran) probably told her to “ask” them if they called me while at Walmart when she showed them the video,[FN 155]
Tarah flip-flopped at trial whether and when she called me, which exposed herself/themselves, or their hand, the Walmart call was a lie,[FN 156] and
Tarah lied she used Mindy’s mom’s cell to call me instead of her mom’s probably to frustrate any records search and/or subpoena later by the defenses to prove it was Sherry’s, not mine, who Mike used to call Paul and his dealer.[FN 157]
I also pointed out where Charla ignored and/or probably even encouraged Mike to say or lie he saw me come out of Walmart from his vantage point that he didn’t see any beer in my hand because:
by his own admission, they were in the back of the parking lot and presumably behind a lot of other cars in the parking lot,[FN 158]
Jason handed me his beer to make it look like I bought beer (See Ch. 9, ¶ 77), and
he was probably referring to the video they no doubt showed him, but for their lack of effort to point out another discrepancy, they didn’t even care to acknowledge.[FN 159]
I also pointed out where Charla ignored and/or probably even encouraged Mike and Andy to say or to lie that we retraced our steps back down Sycamore to Crowley Road because:
they flip-flopped at trial whether we retraced our steps or proceeded down a new route,[FN 160]
I remember going down McCart to I-20 and as we exited I-20 looking up at how bright, colorful, and animated the overhead exit sign and everything looked,[FN 161]
Charla, Foran, and Hartmann were evidently a little too heavy handed in their narrative of what happened, or what they wanted to say happened (whose story was it after all!).[FN 162]
I also pointed out where Charla ignored and/or probably even encouraged Mindy,[FN 163] Tarah, and their network of South Crowley High School friends to tell Mike and his, plus then Mike to tell Andy[FN 164] since he went to North Crowley High school., that I or “Bart” was the one whom Mike talked to at the apartments about the price because:
Mike[FN 165] flip-flopped at trial between “them” and “him”, in Mike’s original affidavit he was nondescript between Jason, Daniel, and me, at least until the last sentence where it said he identified me, but not Jason (3 APP 65-66) ,
early on Charla[FN 166] in her own narratives even flip-flopped between “them” and “him” (Bart), and
without Charla’s help the guy whom Mike identified and who he referred to as “Bart” (in-court) was blond headed (Jason),[FN 167] and the only person blond headed out there that night beside Mindy[FN 168] was Jason.[FN 169]
I also pointed out where Charla ignored and/or probably even encouraged Mike to say or to lie the shotgun was under the seat instead of on top of it between the seat cushions because:
Mike flip-flopped at trial whether it was between the seat cushions or under the seat,[FN 170] and
Charla probably coaxed Mike to say it was under the seat after talking to Mindy, Tarah, and Jason--who were probably trying to put as much distance between it and Jason as they possibly could to fit their narrative that Jason didn’t do anything and didn’t expect anything until it was too late.[FN 171]
I also pointed out where Charla ignored and/or probably even encouraged Mindy,[FN 172] Tarah, and their network of South Crowley High School friends to tell Mike[FN 173] and his, plus then Mike to tell Andy[FN 174] since he went to North Crowley High school., that I or “Bart” was the one who crowned him (Mike) in the head with the shotgun because:
without Charla’s[FN 175] help the guy whom Mike identified and who he referred to as “Bart” (in-court) was blond headed (Jason),[FN 176] and the only person blond headed out there that night beside Mindy[FN 177] was Jason,[FN 178] and
Mike was highly confused and unsure who was who and who went where and who did what (3 RR
68:6-10,
70:2-4 & 11-19).
I also pointed out where Charla ignored and/or probably even encouraged Mindy,[FN 179] Tarah, and their network of South Crowley High School friends to tell Mike[FN 180] and his, plus then Mike to tell Andy,[FN 181] since he (Andy) went to North Crowley High School, that I or “Bart” was the one who demanded their wallets, and that Jason[FN 182] only did so to keep me from shooting them to appease me because:
the guy whom Mike identified in court, unaided and without Charla’s[FN 183] help, the guy whom Mike identified and who he referred to as “Bart” (in-court) was blond headed,[FN 184] and the only person blond headed out there that night beside Mindy[FN 185] was Jason,[FN 186] and
Mike was highly confused and unsure who was who and who went where and who did what (3 RR
68:6-10,
70:2-4 & 11-19).
I also pointed out where Charla ignored and/or probably even encouraged Mindy,[FN 187] Tarah, and their network of South Crowley High School friends to tell Mike[FN 188] and his, plus then Mike to tell Andy,[FN 189] since he went to North Crowley High school, that I or “Bart” was the one who shot them:
without Charla’s help the guy whom Mike identified and who he referred to as “Bart” (in-court) was blond headed (Jason),[FN 190] and the only person blond headed out there that night beside Mindy[FN 191] was Jason,[FN 192] and
Mike was highly confused and unsure who was who and who went where and who did what (3 RR
68:6-10,
70:2-4 & 11-19).
I also pointed out where Charla ignored and/or probably even encouraged somebody[FN 193]--probably within the FWPD agency with whom she (Charla) worked--to shred[FN 194] up the shotgun shells so nobody could get Jason’s finger-prints off of them,[FN 195] including me (my attorney) because:
Jason’s finger-prints on the shotgun shells negated, to say the least, their (Charla’s, Jason’s, Mindy’s, and Jerri’s) theory that I shot Mike and Andy and/or Jason had little to no part with that (Jason wasn't principal),
growing up I had seen tons of run-over shotgun shells up and down the back roads and these looked like none that I had ever seen, even if run over (these looked like they had been run through a blender!),[FN 196] and
they (the cops) broke into my storage building looking for my shotgun (See Ch. 23, ¶ 191, FN 69) that they (the cops) didn’t know didn’t exist (a wild goose-chase, thanks to Mindy, Jerri, and Jason) to try and protect Jason and, depending whether they knew Mindy and Tarah shot the shotgun too (See Ch. 9, ¶ 66), also Mindy and Tarah, i.e., because their prints were on it too and they didn’t want me, per se, getting my own expert witness to rebut their story that I wasn’t a principal (3 RR 247:21)
I also pointed out where Charla ignored and/or probably even encouraged Mindy[FN 197] and Tarah[FN 198] to say or lie they were taking Kodi home, rather than dropping off her backpack when they ran into us (Jason, Daniel, & me) because:
of the photographs, or who took the photographs (i.e., they[FN 199] had to manufacture somebody to have taken the picture since Mike having taken them contradicted their limited interaction story)(See Subchapter 26.D.23).
I also pointed out where Charla ignored and/or probably even encouraged Tarah[FN 200] to say or lie that she walked up to my truck at Kodi’s and Daniel’s hand was bleeding all over my truck and on the door handle because:
it suggested search warrants and evidence,[FN 201]
it was a little bitty scratch and hardly bleeding all over my truck,[FN 202] and
Charla was probably exhibiting some of her great sleuth / detective skills (misguided intuition).[FN 203]
I also pointed out where Charla ignored and/or probably even encouraged Tarah[FN 204] to say she saw me and not Jason, to the extent she saw anybody, digging through a wallet[FN 205] while we were at Conoco while Mindy was buying cigarettes because:
Jason kept and handled Andy’s wallet (3 RR
85:4 &
103:2)),
Charla was showing off some more of her excellent detective skills (Was she on a roll or what?),[FN 206] and
Jason got and kept Andy’s wallet (See generally SubCh. D.20 above).[FN 207]
I also pointed out where Charla ignored and/or probably even encouraged Mindy and Tarah to say and lie Jason and Daniel wouldn’t tell them what happened because:
they thought or felt like it showed like Jason and Daniel were innocent or less culpable than they otherwise were (Mindy,[FN 208] Tarah,[FN 209] & both)[FN 210]
they obviously were going through the wallet, by their own admission, either in or outside my presence,[FN 211]
they were trying to protect Jason and to a lesser extent, Daniel,[FN 212] and
they obviously knew why we didn’t want to get my truck back out on the street.[FN 213]
I also pointed out where Charla ignored and / or probably even encouraged Tarah to say or lie I just assumed I could stay the night or she (Tarah) asked her mom (Sherry) if I could stay the night because:
Tarah flip-flopped at trial whether she did or not,[FN 214]
Charla was a little heavy handed in recording their narratives (after all, whose story was it?),[FN 215] and
they didn’t want me to get my truck back out on the streets.[FN 216]
I also pointed out where Charla ignored and/or probably even encouraged, without fully considering the ramifications that she was complicit in their chicanery, at least until it was too late, Jerri and Mindy[FN 231] to say and lie that Jerri didn’t know that she (Mindy) lied to her (Charla)[FN 232] that she (Mindy) didn’t know anything about the robbery and shootings because she (Jerri) obviously did know Mindy lied to Charla, and Charla should’ve (she (Charla) slipped up) known since she (Jerri) supposedly let Mindy call me back after I supposedly called after Charla left, and because if she (Jerri) didn’t know Mindy lied to Charla, what were they so worried about looking bad since she (Jerri) supposedly thought that I thought Mindy didn’t know what took place after we left the pond?
I also pointed out where Charla probably improperly influenced the pretrial identification procedures of Mike and Andy because she (Charla) possibly, if not probably, arrested me before her (Charla’s) warrant issued for my arrest because:
I remembered being arrested right after Brett left with my phone, which showed he called 911 at 8:14 pm,[FN 233] though Shipp reported my arrest after midnight,[FN 234]
I recalled waiting an awfully long time at the south precinct before being taken to jail downtown Ft. Worth (Chapter 11, ¶ 105),
Charla probably called and woke up my folks (mom & stepdad) at four in the morning to tell them she arrested me because she was trying to feel out whether she needed to include how she really found me, or whether she could brush over it,[FN 235]
Shipp omitted who Fineman talked to outside Coker’s was Brett who called and told them where I was,[FN 236]
Shipp lied I was trying to climb out the back window,[FN 237]
Shipp and/or Hanlon and Savoy lied they (Hanlon & Savoy) saw me coming out of a back room,[FN 238] and
Shipp and/or Savoy lied I wasn’t obeying Savoy’s commands.[FN 239]
I also pointed out where Charla may have fabricated the date on Mike’s affidavit when he identified me (i.e., that my truck and its contents, the rifle, were unconstitutionally seized):
because Charla didn’t ask Andy[FN 240] to identify me on the same day she asked Mike[FN 241] to identify me (guess she was too busy getting the warrant after Mike did, right?),
because Hartmann only subpoenaed Mike’s and Andy’s hospital records for the first two days they were there, i.e., she omitted the day they were discharged from the hospital, i.e., the 23rd of February (what, did they show what time they were discharged or something?)(1 CR 108-111)(2 CR 55-59),
because it appeared Charla, if nothing else, got in trouble for seizing my truck before she found out who it belonged to, though she recognized it by its license plate number (LPN),[FN 242]
that the CPD[FN 243] quite possibly made a record of giving them our information, and when, thereby disputing when Charla said she went there if he tried (i.e., maybe they made a record of giving Jason’s and my info to her),
because it was a little hard to believe they[FN 244] went out in search of me and my truck in a city that I may not have even been armed with nothing but my LPN,[FN 245]
because Charla flip-flopped in her own police report whether it was her[FN 246] or Hanlon[FN 247] who pulled up my ticket file,
because Charla, i.e., Shipp,[FN 248] contradicted Bush[FN 249] when I was arrested,
because Charla contradicted herself[FN 250] or Shipp[FN 251] when I was arrested,
because why if Hanlon pulled up my ticket file and got my license plate number before my arrest[FN 252] would Charla pull it up with the DMV a few short hours later after my arrest and do it again?[FN 253]
because Charla was lying about the conversation we had about me signing the Miranda waiver, etc.,[FN 254]
because Charla and/or Hanlon were lying about the hundred thousand dollar bond wouldn’t be a problem for me to make,[FN 255] and
because why if it wasn’t redone (and the date left the same (3 APP 66:30)) did Mike say the shotgun was under the seat (3 APP 65:38) despite always personally believing it was on top of the seat (3 RR 88:1-2), i.e., how did Charla know to persuade him it was under the seat unless they redid his affidavit after she talked to Mindy where Jason was saying the shotgun was (3 APP 27:18-20)(i.e., how did Mike know to corroborate Mindy, or Mindy corroborate Jason, where they were saying it was), or how did she know to override him (Mike) that first go-around where it was unless she had already talked to Mindy where Jason was saying it was, i.e., was it coincidence?
where the white crystalline powder[FN 256] FWPDCL Stacie Smith[FN 257] said was not a controlled substance was an awfully convenient way to dispose of a losing case,
where the white powder residue in the clear glass vial[FN 258] FWPDCL Max Courtney[FN 259] said was not a controlled substance was an awfully convenient way to dispose of a case for the DA that they didn’t want to prosecute, i.e., even Charla evidently thought the white powder residue was contraband (cocaine / methamphetamine)(i.e., her instinctive nature took over (bargaining power / leverage)), and
where it was an awfully convenient way to dispose of a case for the DA that they didn’t want to prosecute by Detective Hederer[FN 260] saying he couldn't figure out whose marijuana it was his CSI (Gass) found in Andy’s car, especially given the fact that I had been arrested approximately six months prior to my arrest (3 APP 283:60-248:5)(and convicted, no less (7 APP 17)) for the aggravated robbery for possession of marijuana in my vehicle, though it was not mine (i.e., it was Tony Durham’s), and the conviction stuck (See SubCh. 14.B. above). Even when it was used to set me off (deny me parole) for a year (1-year.). So much for equal justice under the law. The home of the free.
where Tiffani testified and told Westfall (Greg) we broke up Saturday, February 2,[FN 261]
where Tiffani testified and told Westfall (Greg) she, Paula, and her (Tiffani’s) grandma (Judy) saw me at church the following weekend (Sunday, February 10),[FN 262]
where Tiffani testified and told Westfall (Greg) she called me the following Thursday (February 14),[FN 263]
where Tiffani testified and told Westfall (Greg) I went to her mom’s (Dannyta’s) and girlfriend’s (Amy’s) the following Saturday (February 16),[FN 264]
where Paula testified, or at least Minick (Cheyenne) asked, if the Sunday she (Paula), her mom (Judy) and niece (Tiffani) saw me at church was February 17, and she said yes,[FN 265]
where Tiffani and Paula testified and were saying (told Westfall (Greg)) they saw me at church on two different dates (See ¶ 232.1-2 + ¶ 232.5 above),
where Westfall (Greg) used the date Paula said she (Paula), her mom (Judy), and niece (Tiffani) saw me at church to displace the date and time Tiffani said I went to her (Tiffani’s) mom’s (Dannyta’s)(See ¶ 232.1-4 above) so that it lined up with the date and time Rick was shot (3 APP 143)(i.e., it looked like I went to Dannyta's after shooting Rick! (3 RR 21:13-17)(4 RR 179:4-5)(5 RR 11:21-12:4)) so that he could argue the charge error on my criminal responsibility for the extraneous (1 CR 78)(2 CR 33) via
Huizar v. State, 12 S.W.3d 479, 484 (Tex. Crim. App. 2-23-00);
seeLindsay v. State, 102 S.W.3d 223, 230 (Tex. App.--Houston [14th Dist.] 2-27-03),
where my mom testified, or at least Westfall (Greg) asked, if the date we went to the bank to consolidate my credit card debt and insure my truck was Friday, February 15, and she said yes,[FN 266] and where I actually consolidated my loans and insured my truck the Friday before then, and I even sent him (Mowla) a copy of my bank statement from when I did so as proof that it (Westfall’s (Greg’s) timeline) was off (4 APP
3 +
5),[FN 267] and
where , three years later my Discount Tire applications probably still existed and showed I went to Discount Tire the week before Westfall (Greg) argued, i.e., 2/11-15/02, not 2/18-22/02, and my loan request application on retention therewith would probably confirm (3 RR 19:24-20:17)(4 RR
59:14-62:3 +
178:17)(SHCR
117-118 +
130-132).
I also pointed out where Hartmann said (during voir dire with the venire): Oftentimes in cases in which the attorneys are doing their jobs [suggesting that Westfall was not doing his job] ¦ we will meet with our witnesses and try and tell them ¦ who is going to be in the courtroom, where those people [policemen] are going to be [and] what is their job. Oftentimes we tell little kids, “There’s going to be three policemen in there to make sure everybody minds their manners [in other words, where the defendant (me) would be seated].” ¶ We tell them where we’re going to sit¦. Is there anyone here who feels that’s improper, that they would think that that’s coaching or trying to tell the witness what to say? ¦ There’s nothing secretive, awful. That’s a normal practice. (2 RR
56:10-11, 18, 19-24 &
57:19-21 &
58:1-3), and Hartmann probably told Jheen that a policeman would be sitting right beside me (to my left) when she (Jheen) got on the stand and Hartmann asked her to identify me because:
Hartmann asked Jheen, and Jheen said, (HARTMANN): If I am Person 1, 2, 3, 4, 5 and the man in the uniform[!] is 6 [Dave Darusha],[FN 268] what number would he be [emphasis added]? JHEEN: No. 5. (3 RR 232:18-20),
Hartmann asked Mindy HARTMANN: If I am number one, two, three, four and five, what number would he be? [and] MINDY [said], Five. (3 RR 163:23-25),
Foran asked Mimi FORAN: If Ms. Hartmann is No. 1 and we go 1, 2, 3, 4, and 5, what number is he? MIMI: From -- FORAN: From this end. MIMI: He’s the third [Westfall (Greg)!? What a horrible witness; she can’t even follow basic instructions, right?] (4 RR 209:13-17),
Jheen was evidently uncertain or tenuous whether I was the suspect[FN 269] prior to her (Hartmann’s) visit with her (Jheen)(couldn’t have been some more of that coaching she was talking about earlier, could it?), and
I also pointed out where Hartmann asked the jury to start deliberation at 30 years, not 40 years, and they came back five more, not five less (See Ch. 19, ¶¶ 168-171, above).[FN 271]
I also pointed out where Billy junior’s grandma (Dimple Junior) served as my bailiff at my trial and that she said she overheard them discussing
Westfall’s (Greg’s) closing argument that “we” admitted Hood County beyond a reasonable doubt and my acquiesce thereto as evidence against me that I shot Rick, and
Gill’s parole law instruction how the effects of parole affected my sentence and that they therefore doubled it to off-set the effects of parole (See Ch. 16, ¶¶ 153-57)
where No. 3 Stephanie Dean (DOB: 2-4-66),[FN 273] appeared biased against the law and Westfall’s intoxication defense, no matter the nature of the intoxication (voluntary or involuntary)
where No. 6 Cymbre Blauvelt (DOB: 8-8-77),[FN 274] appeared biased against the law and Westfall’s intoxication defense, no matter the nature of the intoxication (voluntary or involuntary)
where No. 7 Ms. Mills,[FN 275] appeared biased against the law and Westfall’s intoxication defense, no matter the nature of the intoxication (voluntary or involuntary)
where No. 8 and/or 14 Mr. Davis (because both of them are Mr. Davis, it is impossible to determine who is who without the jury cards),[FN 276]
where No. 9 Mr. Swanson,[FN 277] appeared biased against the law and Westfall’s intoxication defense, no matter the nature of the intoxication (voluntary or involuntary)
where No. 10 Mr. Mills,[FN 278] appeared biased against the law and Westfall’s intoxication defense, no matter the nature of the intoxication (voluntary or involuntary)
where No. 17 Ms. Michelle R. Lemons (DOB: 5-5-60),[FN 279] appeared biased against the law and Westfall’s intoxication defense, no matter the nature of the intoxication (voluntary or involuntary)
where No. 18 Mr. Wakefield,[FN 280] appeared biased against the law and Westfall’s intoxication defense, no matter the nature of the intoxication (voluntary or involuntary)
where No. 19 Ms. Richardson,[FN 281] appeared biased against the law and Westfall’s intoxication defense, no matter the nature of the intoxication (voluntary or involuntary)
where No. 20 Ms. Marva R. Thomas (DOB: 1-27-40?),[FN 282] appeared biased against the law and Westfall’s intoxication defense, no matter the nature of the intoxication (voluntary or involuntary) and
where Ms. Barbara A. Chambers (DOB: 5-11-54?)[FN 283] appeared biased against the law and Westfall’s intoxication defense, no matter the nature of the intoxication (voluntary or involuntary) and
:
where No. 26 Timothy P. Fauble (DOB: 8-6-58)[FN 284] (See ¶s 132-134 above), appeared biased against me because they or their loved ones prior victimization of robbery (See Ch.17, ¶ 159 above), and
where No. 29 Tina Ann Marack (DOB: 12-23-68)[FN 285] appeared biased against me because they or their loved ones prior victimization of robbery (See Ch.17, ¶ 159 above).
that Westfall (Greg) and Minick (Cheyenne) completely ignored the law, involuntary intoxication of the extraneous, the whole reason why they opted for it in the first place, because of his misplaced faith (misunderstanding) in
Davis v. State, 699 S.W.2d 955, 957 (Tex. App.--Fort Worth 1985) or the like:
Further, the "rules" as to burden of proof are not the same at both stages as appellant alleges because, at the penalty phase of the trial,
the accused is no longer presumed innocent, the State has satisfied its burden to prove him guilty and there is no longer a reasonable doubt as to his guilt.
Brown v. State, 617 S.W.2d 234, 237 (Tex.Crim.App.1981).
I also pointed out where Westfall (Greg) apparently subpoenaed William Gordon to testify about my banking activities leading up to and including the day of the extraneous as a possible distraction to Hartmann whether Westfall (Greg) was being ineffective because he knew I possible wrote a check someplace way away from where Rick was shot (alibi).[FN 286]
I also pointed out where Hartmann argued that Mindy and Tarah were all the more credible because they were my friends and could have easily been shown otherwise because they were obviously incentivized.
[FN 288]
But all he (Mowla) seemed to want to do or say was that without corroboration (affidavits) he wasn’t going to try and show there was a reasonable doubt whether I shot Mike, Andy, and Rick; although that was exactly what he hinted around at multiple times throughout his writ
where he wrote: [D]uring the cross-examination of [Mike], Westfall [Greg] referenced a statement that [Mike] made to the police on February 23, 2002, by asking [Mike] only about [the] location of the gun in the vehicle (R III, 87-88), although this question was not relevant to [Mike's] direct testimony. Westfall (Greg) then asked [Mike] about the smoking of marijuana and whether in the past any person ever thought [Mike] was an undercover police officer. (R. III, 89-90). Again, this question had no relevance as to
whether [Bart] was the shooter. (emphasis added)(1 FCR 141, 1st half
¶);
where he wrote: [Mike] did not state that he saw the person who shot him. [Mike] was not asked whether any other shots were fired. (SHCR 17, 2d full
¶); and
where he wrote: [Bart] was never charged with the shooting near Granbury, and
little evidence was presented that connected [Bart] with such shooting.
(emphasis added)(1 FCR 141, 1st full
¶).
I told him there was corroboration in the record if he would just look (See Ch. 26 above), despite their affidavits, or lack thereof, but I couldn’t get him to budge otherwise.
So I reiterated my charge error complaint, but all he seemed to want to say there was something to the effect:
that he (Mowla) talked to Gill and Westfall (Greg) about the charge error and that Gill said the reason he took it out was because Westfall (Greg) objected to it;
that the reason Westfall (Greg) said he objected to it was because it was a guilt/innocence issue and that there was no presumption of innocence in a punishment case, and whom (Westfall, Greg)) he (Mowla) said he (Mowla) tended to agree with or whom he (Mowla) said he (Mowla) was going to side with on that issue;[FN 289] and
that by arguing the charge error would essentially be admitting guilt therefor, which he reminded me I was still subject or liable to prosecution for (obviously!).[FN 290]
I remember being like:
the law was pretty clear on the charge error;[FN 291]
even so, Westfall (Greg) already admitted my guilt therefor,[FN 292] and
if he wasn’t going to point out the timeline error (See Ch. 26, Subch. G, ¶ 232), what difference did it make, but I couldn’t get him to budge otherwise.[FN 293]
So I wrote my folks who were paying him (Mowla) to get another lawyer, but after they (my family) talked to Mowla, they acted like I was trying to get them in trouble, and for the life of me I couldn’t understand why they were fighting me on this:
it was like they thought I was accusing them of trying to make up some kind of textbook example of me by shifting the timeline forward one week to match when hypomanic-type behavior was supposed to emerge, and what kind of odd, crazy bizarre behavior I was supposed to manifest (3 APP
245 +
252 +
254);[FN 294] and/or
it was like they thought I would find out they got Brett to find me and call the cops on my cell phone, or that they could get in trouble for getting Brett to find and call the cops on me with my cellphone where I was (no, I didn’t piece that together until later)(4 RR 81:9-19)(5 RR 16:5-11)(Ch. 11 above).
I couldn’t believe it; I couldn’t get my mom or grandma to listen to me, I couldn’t get Mowla to listen to me; I couldn’t get anybody to listen to me; and I was 100% at their mercy because they had all my money (1 SHCR 80-81)(1 FCR 166-167)(Doc 8)(2 FCR 51-57)(Doc. 2)(6 APP 50-58) and they were using it to pay Mowla.[FN 295]
I couldn’t handle it; I was about to break; I couldn't eat, I couldn’t sleep, I was a nervous wreck, i.e., I had to let go or I was going to drive myself crazy (4 APP
8 &
14).
I was basically faced with the choice of foregoing my claims by continuing with Mowla or abandoning all hope of collateral attack because:
if I tried to proceed pro se, I was sure enough to drive myself insane (it wasn’t like anybody was going to listen to me anyway if I did, which only caused me more frustration and illness).
At first psych wouldn’t help me (4 APP 8-9, 11-12), but my grandma and mom got involved and the warden,
Eddie Williams, got psych to put me on Prozac (3-20-06)(4 APP 20-21), which doubled over for anxiety or something; it took me a while, but it (my functionality) eventually returned or whatever (See (4 APP
part-A, and
part-B)), but by then it was too late. My writs had already been filed.
Despite my leanings, Mowla moved forward with my writs; I was under the impression that he was filing them in both state and federal court like he did or was doing in Norrid’s case,[FN 297] but my grandma who was paying him (Mowla) must’ve convinced him otherwise (she was very good at getting her way[FN 298])(up until then I was very careful to exhaust each and every step), or something, like she didn’t feel like I would get any justice in Tarrant County.
When we got cited for failure to exhaust my administrative remedies (1 FCR 202), I wrote him (Mowla) asking what that was about, but all he told me was something to the effect that the first federal writ acted to toll the AEDPA while it sat pending review or adjudication.
Right before the ninetieth (90th) day after my year-and-ninety (90) days elapsed on or about 11-15-06,[FN 299] on 11-01-06 Mowla apparently thought better of it (his
2254(b) stance) and refiled in state court to exhaust the
2254(b) proceedings.
Mowla didn’t, however, tell me that Bleil recommended my
2254 be dismissed without prejudice (10-20-06)[FN 300] and/or Means adopted Bleil’s F, C, & R on or about the ninety-first (91st) day (11-16-06)[FN 301] after my year and ninety (90) days elapsed.[FN 302]
Mowla also didn’t tell me that on 8-9-06, or otherwise, he (Mowla) gave the state (Morgan) an extra sixty (60) days to respond, in addition to their thirty (30) days,[FN 303] which all together ate up ninety (90) days off my clock while it sat running (i.e., the original 30 days, plus the additional 60-days equals 90-days), and/or Bleil green-lighted it on 8-17-02[FN 304] the day after my year and ninety (90) days elapsed (i.e., it expired the day before);
Mowla also didn’t tell me he (Mowla) abandoned the
2253 proceedings while he went back and exhausted my
2254(b) proceedings.[FN 305]
Either in coordination or by coincidence, on the same day (11-16-06) Means adopted Bleil’s F, C, & R on 11/17/06[FN 306] Gill ordered Westfall (Greg) and Minick (Cheyenne) to respond to Mowla’s 11.07s[FN 307] prima facie IATC claims,[FN 308] then, he (Gill) suddenly and without explanation left the bench or was forced out or resigned or took an early retirement with the judicial commission[FN 309] and Sturns stepped in and rubber stamped (un-edited) Andrea Jacobs (DOB: 3/24/77)(1413 Andante Dr, Fort Worth, TX 76134-3613) proposed Findings of Fact and Conclusions of Law (FFCL) on 1-31-08 (SHCR 241), then the CCA (Texas Criminal Court of Appeals) summarily denied (rubber-stamped) the same based upon the FFCL of the trial court (Sturns; Andrea) twenty-eight (28) days later on 2-27-08.[FN 310]
(Ch. 30. My reply to Westfall's & Minick's responses, & Mowla's malpractice response to me)
In reply to Westfall’s (Greg) and Minick’s (Cheyenne) responses, I remember pointing out something to the effect where, although they (Westfall (Greg) and Minick (Cheyenne)) said they reviewed their files from their investigation of my case:[FN 311]
Mike and Andy were not shot running away from a stock tank (i.e., they were shot running around in an apartment complex);[FN 312]
Stephen, Jheen, and Greg did not say the suspect, or I, jumped out of the bed of his, or my, truck with a, or the, rifle, or SKS, when they stopped,[FN 314]
unless the suspect or my truck was a
Chevrolet Avalanche (with its fold down midgate leading from the cab to the bed), which mine obviously was not, or my truck had a trapdoor leading from the cab to the bed, which mine did not, there was no way I could’ve been both in the truck flashing the lights and in the bed of my truck at the same time (SHCR 94, 1st
¶); and
Tiffani did not say I went to her mom’s (Danntya’s) on the night Rick was shot,[FN 315] plus Tiffani and Paula said they saw me at church on two different dates.[FN 316]
I also remember pointing out something to the effect where, although they (Westfall (Greg) and Minick (Cheyenne)) said they researched the law:[FN 317]
unless I was voluntarily getting intoxicated, which I was not,[FN 318] the Paxil defense did negate the intent to kill,[FN 319] or it was a defense to either attempted capital murder or aggravated robbery;
they evidently didn’t know that Gill was required to sua sponte charge the jury that before they could consider the extraneous, it had to find beyond a reasonable doubt that I could be held potentially criminally responsible; i.e., if it thought I was involuntarily intoxicated by or from Paxil it could not consider the same in sentencing me for robbing and shooting Mike and Andy,[FN 320] or did they?[FN 321]
voluntary intoxication was a punishment issue.[FN 322]
I also remember pointing out something to the effect where, although they said the reason why (strategy):
they did not present the Paxil defense (involuntary intoxication) at the guilt / innocent phase was because the Walmart video tended to negate (support the intent to kill), not support, the Paxil defense,[FN 323] the Walmart video in fact tended to collapse, not support, the intent to kill because it showed my disinhibition of social judgment, or my inability to distinguish right from wrong, was disinhibited; I apparently didn’t know better than to go behind the counter where the cash register was to get Jason’s bullets,[FN 324] in addition to my not evidently grasping the seriousness of what happened, as described by Mindy, Tarah, and Jason thereafter,[FN 325]
they did not call Dr. Connell was because of her antisocial diagnosis,[FN 326] who wouldn’t have drawn that conclusion after reading the documents she said Westfall (Greg) sent her[FN 327] of what they were saying I did?;
they did not want to use Dr. Johnstone was because he commented something to the effect at voir dire (705(b)) that I lacked remorse,[FN 328] I did not tell Dr. Johnstone that “I” didn’t regard what “I” had done as a robbery because “I” didn’t get much money when “I” took the wallets, that is, to the extent I said it at all, which I didn’t recall, and still don’t, I had to have said something to the effect that “I” didn’t regard what “I” did as a robbery because “I” didn’t rob anybody (Jason & Daniel did)(4 RR 138:22-25); he apparently was trying to help me (a hired gun (4 RR 185:4-11)(Marsh v. Stephens, CIVIL ACTION No. H-14-2801, *11, Finding 21 (2016 U.S. Dist. LEXIS 30608 (N.D.T.X. 2016)); the state isn't holier than thou, i.e., they do it every single time with all of their witnesses)) by taking a swipe at my competency, which naturally would've gave Westfall (Greg) great pause (his was sanity of the extraneous);
they did not want to use Dr. Johnstone was because he commented something to the effect at voir dire (705(b)) that I lacked remorse, taken in context, or in whole, Dr. Johnstone was taking a swipe at my competency,[FN 329] something Westfall (Greg) apparently wasn’t prepared for him to say, a reflection of his preparation thereto;[FN 330]
they did not prepare me to testify was because it became pretty apparent early on that I was not going to testify,[FN 331] what made it so apparent to him early on that I was not going to testify (apparently he did not spend enough time with me or else he would’ve realized that I didn’t go to Tiffani’s when he argued I did, and / or that I didn’t rob and / or shoot Mike and Andy (of course not Rick).
I also remember pointing out something to the effect where, although they said the reason why (strategy) they did not try to show that there was a reasonable doubt whether I shot these guys was because it would’ve cut against his whole reason for me pleading guilty,[FN 332]
that was exactly what he was doing when he cross-examined ANDY;[FN 333]
that was exactly what he was doing when he cross-examined GASS;[FN 334]
that was exactly what he was doing when he cross-examined MINDY;[FN 335]
that was exactly what he was doing when he cross-examined TARAH;[FN 336] and
that (the reasonable doubt) was exactly what he was doing when he cross-examined FAZIO.[FN 337]
I also remember pointing out something to the effect where, although they (Westfall (Greg) and Minick (Cheyenne) said the deal with the ADAs (Hartman & Foran) was to:
consolidate Mike’s and Andy's cases because “[t]hey [Hartman & Foran] had the option to try only one of the cases and hold the other one back for another trial if the first trial did not go as well as they hoped[,]”[FN 338] it was also evidently his (Westfall’s (Greg’s)) strategy to hold back (sandbag)[FN 339] the charge error, among the potential innocence claim down the road, in the event his (Westfall’s, Greg) did not go as “hoped” either; and
waive the attempted capital murder charge, aggravated robbery carried the same penalty (so big whippty).[FN 340]
I also remember pointing out something to the effect where, although they said they did not promise or guarantee me probation,[FN 341] they more than suggested (i.e., the power of suggestion) it by telling me that if I got between five and ten years that Gill could and would then reduce it (my sentence) to probation because they (Westfall (Greg) and Minick (Cheyenne)) knew him (Gill) and were friends.[FN 342]
I also remember pointing out something to the effect where, although Westfall (Greg)[FN 343] and Minick (Cheyenne)[FN 344] said the plea interaction between me and Minick (Cheyenne) did not occur because Gill would've never accepted it if he saw it and that it was done in open court and was therefore “no secret” (emphasis added):
I would’ve had to have been particularly astute to rattle this off right out of the chute in or on my direct appeal pro se brief;[FN 345]
this is the same judge who helped create the charge error for my appeal who wouldn’t have accepted it had he seen it?[FN 346]
why did he tell my family not to show up the first day of trial; i.e., nobody was there during the plea proceedings, but me, Gill, Westfall (Greg), and Minick (Cheyenne);[FN 347] and
why couldn't they have done the slow plea in front of the jury (i.e., worried the jury or public would see the nods!?).[FN 348]
But all Mowla seemed to want to say was something to the effect:
he didn’t see any extraneous file in the file he (Mowla) had my mom get from Westfall (Greg);[FN 349]
I was right that Dr. Connell went without saying;
we had discussed the charge error and his stance thereto whether Westfall (Greg) sandbagged the state;
he felt like he covered the testifying part on my behalf sufficiently enough in his writ (SHCR
29, 1st ¶ +
41, 1st ¶ +
46, 1st ¶);
he had essentially focused on the Power of Attorney (POA) almost exclusively, or something to that effect, regarding the voluntariness of my pleas (SHCR
29, last
¶ + 48, 1st ¶ +
52, 1st full ¶);
When we returned to federal court on 3-8-08 (2 FCR 1)(Doc. 1) I didn’t find out (Mowla, nor my family told me) that Means adopted Bleil’s F, C, & R that I was time barred until the Summer of 2009.
I was sitting in the dayroom at the Allred Unit listening to two guys, one of whose name was Rooster who lived in sixty (60) cell (I lived in sixty-three (63) I believe (4 APP 6)) talk about this new case, and how we didn’t have an extra ninety (90) days added to our year under the AEDPA to seek a writ of certiorari with SCOTUS after our PDRs had been denied;[FN 350]
I wrote my grandma and told her and she looked the case up and sent it to me; she didn’t seem to act like she knew anything about it and denied it out right when asked whether she knew that my writ had been kicked out of federal court because Mowla ran out the rest of my AEDPA time by routing my writ through the Dallas division, which ate up sixty-seven (67) days off my year (re-routing it back to the Ft. Worth division), plus then giving the state (Morgan) an extra sixty (60 days (ninety (90) days all together) to respond to his writ (a hundred and fifty-seven (157) days in all).[FN 351]
I found that out after I read the case and wrote to Mowla whether he knew SCOTUS held in Lawrence that I didn’t have an extra ninety (90) days tacked onto my year to file a writ of habeas corpus.
Mowla wrote me back that he “thought” my mom and grandma[FN 352] told me that and that he would’ve charged us $5k to appeal it to the Fifth Circuit but that they didn’t want to pay it, so he didn’t appeal it.
I was floored, but by then, as discussed below, they were already taken off my visitation list (4 APP 52-54), so I had to write them and they seemed just as shocked and dismayed as I was, and even told me so.
At the least I could’ve tried to appeal it myself, especially the witness intimidation grounds (SHCR 54, 2d full
¶ & SHCR 191), and my original grounds from my direct appeal,[FN 353] had Mowla, my mom, or grandma told me, but by then it was too late.[FN 354]
If they knew, which I suspect they did, I guess they asked Mowla to let them tell me and never got around to it because they didn’t think I could handle it, so they let me live on in bliss for as long as they could.[FN 355]
Mowla also filed a lawsuit against the prison officials at the Allred unit for not protecting me from this Texas Syndicate (“TS”) dude (Carlos Jacob Pena) who “
shanked” me with a sixteen (16) penny nail on 6-26-07 and sent me to a free world hospital in Wichita Falls, to say the least (4 APP
105, or
55-66 &
67-114).[FN 356]
Toward the middle of 2010, Mowla wrote me that the lawsuit was fixing to go to trial, and that he could not afford to drive halfway across the state to attend a week long trial, and that I had two weeks to respond with $5k before he was going to withdraw (blood sucker).
So I wrote to him that my family was out of money, and proceeded pro se.
When it came out in the wash, it was not fixing to go to trial; it was “fixing” to get tossed out of federal court for failure to state a claim because the Allred officials had no prior knowledge of the attack, and was therefore unable to take precautionary action to protect me, or so they claimed.[FN 357]
After that Mowla sent me my file (on 11-02-09)(4 APP 116-117) that he had compiled while handling my case; it did not have or contain any extraneous documents, and it did not contain the file Minick (Cheyenne) said he had and reviewed before filing his affidavit.
After I found out my case was dead I started working on it myself (See, generally: (2 APP 2); I tried writing Jason and Tarah myself mid to late 2009, but Jason wouldn’t respond, and although Tarah’s mom (Sherry) responded (3 APP 271), she didn’t respond to my
reply; she said something about thinking I got too much time, or that I had done enough (guilty conscience? Paul and Charla were probably blowing her (Sherry's) phone up that Tarah let Mike use to call Paul and his dealer)(3 APP 271, 1st full
¶), and how sad she was that her granddaughter (Kaylie) was going to have to grow up without a dad (Lucas Tucker) who fell off a radio tower at work in 2009, and she told me about that (3 APP 271, 5th full
¶).
I also wrote my folks to hire me an investigator to interview my jurors and get affidavits from them for, according to Billy’s grandma, violating the court’s parole law instruction and instruction not to consider Westfall’s (Greg’s), Minick’s (Cheyenne's),[FN 358] and Foran’s[FN 359] outside the record arguments as evidence in sentencing me (1 CR 81, 3d full
¶)(2 CR 35, 7th full
¶)(See Subchapter 26.H. & J above), but they either wouldn’t or couldn’t find one (an investigator) willing to do it.
I also wrote my folks to write the DA to get a copy of its prosecution file on me, but they either wouldn’t respond or denied it out right,[FN 360] so we filed complaints with the Attorney General’s Open Records Division,[FN 361] which got a response.
ADA Ashley D. Fourt responded:
that they were trying to get it for me, and under Texas Government Code
§ 552.028[FN 362] they were denying them access to it;[FN 363]
that my grandma had talked to her on the phone in 2011 that she was trying to get them for me (2 APP 100, 1st & 5th ¶s); funny thing how that worked out because my grandma had a stroke on 2-12-10 which left her unable to call or talk to her much less tell her she was getting it for me;
that she had some court pleadings from me with the same typeface (2 APP 100, 3d full
¶), which would have had to have been my expunction pleadings,[FN 364] which had been ordered expunged by Sturns in 2013, so what she was still doing with them remains a bit of a mystery since Sturns ordered them turned over to him and it was a class B misdemeanor[FN 365] to have or use them in any type of a proceeding like she claimed to have been doing (did she not know; but even if she did who was going to prosecute the ADA, right?! Is the ADA above the law);
that she got some copies of some grievances I filed while in prison with the same typeface, but yet she didn't feel the need to attach them to her response so whether she ever really had them or was just playing fast-and-lose with the facts is a bit of a question, to say the least, especially since I hardly ever filed grievances, and almost never in type because of the lined paper on the grievances, which didn’t line up (2 APP 100, 3d full
¶);
that if I wanted them that I could hire a lawyer like everybody else (2 APP 100, 5th full
¶), but after spending over $80k on legal fees[FN 366] I was like the rest of Texas prisoners, broke and without the money to do so, and my folks were unable to wouldn’t sink another dime into my defense fund (mine was roughly all gone).
I also wrote a few places just to see how much they would charge to do
the open records request for me; they either wouldn’t respond because I was
in prison, or if they did respond they wanted a ridiculous sum of money and my folks weren’t about to do that (2 APP
23,
24,
27,
30,
41,
44,
109,
126,
127, &
128).
I also wrote Mowla, but he responded that his duties to me had long since passed as a client so he wasn't going to respond to any more letters from me despite the huge sum of money I had paid him to omit some
exceptionally extraordinary claims plus then agree with Baxter Morgan to get me procedurally barred (time barred)(protect Westfall (Greg) & Minick (Cheyenne)) in federal court
(1 FCR 177-178)((2 FCR 146)(2 FCR 155).
I also wrote a few innocence clinics to look into my case (2 APP
61,
62-64,
65-66,
90,
93,
94, &
112-113), but because my case didn’t involve DNA (2 APP 64) they wouldn’t take it (2 APP
65,
94, &
112), if they even responded at all; they wouldn't consider the extraneous because there is no conviction.
I also wrote to several parole attorneys about trying to get a copy of the DA’s file (2 APP
126,
127, &
128) to see what, if anything, they put in there under
Art. 42.09, § 8, but they didn't or wouldn’t respond and my folks were unable or unwilling to spend another dime.[FN 367]
I also wrote prisoner service places after my set off who said they would do it for $50 (2 APP 118-125), but over a year later, and even still yet, after I made parole I was still waiting. Apparently due to COVID-19 they went belly-side up (2 APP 130).
I continued my efforts upon my release and contacted, among other places, the TCDA myself this time and requested not only my file but my codefendants’ Jason’s and Daniel’s too (1 APP 20) and discovered, through a series of back and forth efforts (See, generally: (1 APP 2)), new evidence (See, generally: (3 APP 2-4)), or at least new evidence to me, or at least newly available evidence to me (See, generally: (2 APP 2-5); these are just the attempts I kept up with: there were untold hundreds of more), that Daniel’s probation was revoked on 5-8-05 by Westfall’s (Greg’s) wife,
Mollee Westfall (1 APP
29 &
31), right before (what, did they have a heads up or something? It's not uncommon to troll the dockets, especially when your whole family, and your friends and their families, works in the same industry, much more the same building) my PDR was denied on 5/18/05 (SHCR 3, Q13(i))(3 APP 230:38)(what were the chances of that, right!?), which suggests to me the Westfall’s (Greg & Mollee) were preparing for battle for my up-coming writs, no doubt, coming down the turnpike (my father's and grandfather's estates were doing them well, no doubt; ill gotten gains), by moving to have Daniel locked up (what, were they trying and motivate him (coerce him) to implicate me in the extraneous in exchange for his freedom, i.e., coerce a false confession out of Daniel by threatening him with more time.
I also discovered Jason’s photo spread results form when Charla attempted to have Mike identify Jason on 2-23-02 was also missing from the file (1 APP 23:1)[FN 369], which tells me that Charla probably didn’t “ask” Mike to identify him (Jason) when she (Charla) asked him (Mike) to identify me, which tells me that she (Charla) didn't ask Mike to identify me before arresting me, and which tells me she only said she asked Mike to identify Jason because if she didn’t, people were going to ask why, which, of course, meant that she (Charla) had to yield Mike’s identification of Jason to necessity, or else why didn’t they go out that same night looking for Jason and arrest him too (why; because he was a part of the group who helped lead them to me)?
Because Jason’s photo spread results from when Charla asked Mike to identify Jason were missing, and because there was no ticket verifying Hanlon’s query thereto, I requested Hanlon’s, among others, personnel files to see if they had ever gotten in trouble for any such thing (1 APP 33) and discovered Hanlon got in trouble sometime prior to for doing nearly the same thing, then lying to try and cover it up, which tells me Charla and Hanlon probably got back with Mike the day after I was arrested (i.e., at 7:30 p.m. on 2/24/02 (3 APP 66-67)[FN 370] to redo his affidavit that he identified me, but not Jason, before I was arrested (with the original date (2-23-02) left the same), then Hanlon notarized it to corroborate Charla’s photospread date with Mike, that my arrest was legit, or on the up-and-up, which then caused me to stop and question why Mindy’s and Tarah’s affidavits weren’t notarized with a seal and, whether they were redone too (and the date left the same), thanks to Foran's prompting of Charla.
I also discovered Charla queried the DMV (3 APP 60:1-11) after Hanlon, according to Charla, pulled up my ticket file and got my LPN (3 APP 17:58-59)(3 RR 151:15-16), and after Bush searched Ft. Worth for my truck (3 APP 15:6-7) and Hysmith seized it (3 APP 15:50-53), whose truck they (Smith (Charla) & Hysmith) seized, and I also discovered the supposed ticket or ticket file Hanlon supposedly pulled up didn’t exist, if it ever existed in the first place (1 APP 23:4),[FN 371] which tells me that Hanlon didn’t really pull up my ticket file and get my LPN, like she (Charla) said, so that Bush, Hanlon, Savoy, Fineman, and Hysmith could go out and comb the busy streets of the populous city of Ft. Worth, a city I may not have even been according to Mindy and Jerri (3 APP
23:38-39 &
24:26-27 &
74:26 &
78:12-13 &
78:37-38 &
80:5-6 &
83:42 &
97:27 & 29 &
114:29), for my truck, which also tells me
Charla probably didn’t go by the CPD after she left Mindy’s that first time (3 APP
17:49 &
58:16 &
73:18 &
97:19 &
114:19 &
117:37), or at least put the information together then for Mike to identify Jason and me (if
Charla really went by the CPD after going by Mindy's that first time, or any
other time, to get Jason's and my information, then why
didn't she get and use Jason's and my CPD 7-21-01 mugshots from them (the
CPD!) to illiciet Mike's and Andy's identidifications of u(7 APP(7 APP 5 &
15)). Ex parte B.R.G., 2014 Tex. App. LEXIS 4462 (Texas Appeals--Fort Worth 2014)(NO. 02-13-00285-CV).
I also discovered Charla’s letter to Larry B. Goin (DOB: 1-6-42)(DOD: 5-4-10)[FN 372] that I needed to be off the streets permanently (3 APP 176:13), which tells me that, despite all evidence to the contrary, Charla believed Mindy and Jerri that I was going to kill them if they (Mindy and Jerri) talked that she (Charla) went out right then and there to arrest me without a warrant, even if it meant she had to lie that Mike identified me before I was arrested (3 APP
24:28-30 &
27:34-40 &
79:27-30 &
80:19-21), which tells me Charla did not stop looking for another crime (a cold case) to pin on me, since Mindy and Jerri were so kind enough to redirect and distract Charla’s attention with a red-herring (Ch. 26, Subch. D.28), until she found one, almost in her own backyard;[FN 373]]" which tells me, because in Charla’s letter to Goin she (Charla) said she sent Goin photospreads of me (3 APP 176:4-5), Goin showed Stephen, Jheen, and Gregory Allen Peterson aka Greg (DOB: 3-23-80) Charla’s presumably) 8-21-01 photo spread mugshots of me and they were obviously unable to identify me.
I also discovered Goin examined the bullet holes where the bullet entered the trunk, split in two, entered the back seat, and hit Rick (both pieces),[FN 374] but he (Goin) and the doctor who later x-rayed Rick were unable to locate the other piece (only one) of the bullet (3 APP 142:33-34), or (Goin) any remaining third piece that may have gotten lodged anywhere in the back seat, etc., which tells me the other piece of the bullet evidently broke through the backseat, but didn’t have enough velocity left over to do much more than mark the skin, then was evidently unknowingly or unwittingly brushed away, forgotten about, and unnoticed during the ensuing first aid and rush to care (melee); and which tells me Stephen didn’t really find the other piece of the bullet because:
Goin, a trained CSI, well aware of the missing piece, thoroughly processed the crime scene for the missing piece and couldn’t find it, and
Stephen never called the cops to let them know about his find (i.e., they had to ask him some 365-days
later before he supposedly decided to cough it up).
I also discovered Charla’s letter to Goin that I needed to be off the streets permanently, which tells me, because Charla believed Mindy, Jerri, and later on Jason, Kodi, Jake Hardin, and Tarah, etc., that I was going to kill them for telling on me if I ever got the chance (3 APP
24:28-30 &
27:34-40 &
79:27-30 &
80:19-21) that she (Charla) not only went out right then and there to arrest me without a warrant, but that she also probably moved or had moved[FN 384] the rifle from the cab of my truck where I last recalled it to the toolbox where CSI Gass claimed to have found it (3 APP 33:56)(3 RR 146:3-6) so that it matched where Greg, Jheen, and Stephen said they saw the suspect go before they got turned around and fired upon.
I also discovered Jheen said on 2-23-02 the suspect “look[ed]” like he was “drunk or something[,]”[FN 386] which tells me Hubbard and Deleon purposely selected my 3-7-02 mugshot over my 8-21-01 mugshot (which Charla sent Goin to conduct another independent identification procedure)[FN 387] because it tended to match Jheen’s pretrial identification of me looking to have been “drunk or something.”[FN 388]
I also discovered Jheen and Stephen both selected positions six, which was statistically unlikely (a 16…” percent or 1 in 6 of chance)(3 APP 156-157) which tells me that Hubbard and Deleon probably told Jheen after her tenuous identification that she identified their suspect because Stephen, who went after Jheen, also identified the man in position six, who was not me, which also tells me that they weren’t watching them outside the interview room where Jheen was likely able to pass off the information what position their suspect (me) was in, though they had to move it by policy)[FN 389]
I also discovered that, despite their 2/23/02 discrepancies, Greg, Stephen, and Jheen still participated ("recanted" their original attestations (3 APP 153:41)) in Hubbard’s and Deleon’s 11/26/02 identification procedures and Stephen and Greg were evidently positively certain that I was not the suspect, which tells me that Hubbard and Deleon didn’t tell Jheen that I was six inches taller and twenty five (25) pounds heavier than what Stephen, who was in the best possible position (face-to-face) to identify the suspect, said the suspect was, or between two and five inches taller than what Jheen even said, and which tells me that, rather than tell Greg, Jheen, and Stephen that I was way taller and heavier than the suspect whom they described, Hubbard and Deleon probably showed them Charla’s photographs of my truck and Brett’s rifle and told them where they found it (the rifle)(in the toolbox) and that Tiffani (my girlfriend) lived a few short miles away from where Rick was shot (as did countless others);
I also discovered that although Jheen didn’t mention anything about the handles being on the back of the toolbox when she gave her 2-23-02 statement, she sure was sure to point that out at trial when Hartmann asked her about them almost a year later, which suggest to me more coaching, to say the least (3 RR 233:24-234:2).[FN 390]
I also discovered Jheen was at a bar (Goin reported that they had been at JJ’s hideaway, so I looked it up to see what kind of place it was) with, among others, Rick, till three in the morning (3 APP 142:1 & 11)(3 APP 168), which tells me since Jheen was at a bar with Rick till three in the morning, she was probably intoxicated and, contrary to what she said, she did not get a good look at the suspect because they were at some seedy bar getting drunk, and no telling what else, till three in the morning, not some innocent sounding little birthday party like what Hartmann made it out to seem at trial like with cake and ice cream (after I discovered all the evidence Hartmann, Foran, Westfall (Greg), and/or Minick (Cheyenne) withheld from me concerning the extraneous, I got curious and looked up their criminal conviction records with the DPS and discovered further Rick’s criminal record for heavy partying and drinking, to say the least) which, when combined with what I already knew (i.e., she was asleep parked alongside a dark country highway late at night), her opportunity to supposedly view
me was poor, to say the least.
It (the bar and intoxication) also tells me Jheen wasn’t paying very good attention to the suspect, especially when considered in conjunction with my prior knowledge of the fact that she had been asleep, which Hartmann had to coax her (Jheen) into even conceding at trial (i.e., she “dozed” off by old Texaco (1751 E US Hwy 377, Granbury, TX 76048) before passing highway 51 (now highway 377 Business) on highway 377).
I also discovered Jheen wasn’t paying very good attention to the suspect because of the discrepancies between her and Stephen, who stood face-to-face with the suspect and who was evidently positively certain I was not the suspect, i.e., if I was the suspect, Stephen wouldn’t have been looking five inches down on (3 APP 148:25-26), but one inch up to (Goin reported Stephen was five foot eleven inches tall (3 APP 141:22), and Bush booked me in at book-in at 6 foot even (3 APP 61:3) in my Doc. Martens (i.e., they had two inch soles)(4 APP 120-125), which I had just got for Christmas and always wore thereafter (i.e., I was arrested in them (4 APP 119)).
I also discovered Jheen said the suspect was between 5’7” and 5’10” tall, had brown hair, was wearing jeans, but that she was unsure how much he weighed (fat or skinny, or somewhere in between), what color he was (light or dark complexioned, or somewhere in between), or how old he was (old or young, or somewhere in between)(3 APP 147:17-148:13), which tells me the suspect could’ve been almost anybody, even if he was driving truck similar to mine (pewter gray was a ubiquitous color for that make and model then,[FN 392] and this is Texas (Texans love their trucks, especially Silverado’s/GMCs)).
I also discovered Stephen was the only one who stood face-to-face with the suspect (3 APP
142:16-19, &
153:45-46), and Stephen was evidently positively certain I was not the suspect (3 APP
154:32-33 &
157), not just unable to properly identify me like what Hartmann made it out to seem (1 CR 70:4)(2 CR 25:4).
I also discovered that their was almost a year long lapse in between when the offense or crime occurred and when Deleon and Hanlon had Greg, Jheen, and Stephen try to identify (3 APP
142:1, &
154:24-33 &
155-157) me, which tells me, since time seems to be such an important factor according to SCOTUS and its psychologist on the topic,
Neil v. Biggers, 409 U.S. at 199, the identification was all the more insignificant, but the jury was not to know it, sadly.
I also discovered Carrie Michele Davis (DOB: 8-27-70)?, a dark haired girl, no less, and Stanley Eugene Thomas (DOB: 6/13/55) were also suspects in Hartmann’s extraneous and they actually even left physical evidence at the crime scene (a hard hat and a license plate registered to Carrie evidently fell out of the back of Stanley’s truck, apparently, among other things
(3 APP
142:44-54, &
144:6 & 11)).
It appears either Westfall (Greg) and/or Minick (Cheyenne) failed to investigate the facts, research the law, and apply the law to the facts, or it appears Westfall and Minick (Cheyenne) misrepresented Tiffani's testimony when I went to her mom’s so that they could sandbag the charge error at trial for Wynn (W. Reagan) to argue on appeal.
If Westfall’s (Greg) trial strategy was not Wynn's (W. Reagan) appeal strategy, why didn’t Westfall (Greg) use the information listed above to pursue an impeaching or exonerating cross-examination of Charla, Fazio, Gass, and Jheen?
In Burke v. State, 80 S.W. 82 (Tex. App.--Fort Worth, 5-28-02, on remand) Westfall (Greg) and judge Wisch sandbagged Burke’s intent to assault Hunter by running the red-light;
In
Nickerson v. State, NO. 2-02-453-CR, 2003 Tex. App. Lexis 10216 (Tex.App.--Fort Worth, 2003, pet. ref’d)(he was asked for a higher standard of waiver to the meaning of a conflict-of-interest in capital cases by having Nickerson waive such because Westfall’s wife (Mollee) was prosecuting Nickerson))(Greg and Mollee Westfall tried to set a higher standard in capital cases for waving potential conflicts of interest); and
In
State v. Daugherty, 931 S.W.2d 268 (Tex. Crim. App. 1996) Kearney and his young
protégé (Westfall (Greg)) established
Art. 38.23 has no inevitable discovery counterpart to the Fourth Amendment.
Surely I would’ve opted for it (innocence; Rick) over accepting responsibility for a crime I didn’t commit (Rick);
Surely I didn't think Westfall’s (Greg) “novel defense” of accepting responsibility for shooting Rick, then floating the Paxil defense was better (SHCR 95, 2d full ¶);
Surely Westfall (Greg) didn’t think it was better, unless of course, it was to argue on appeal that Gill failed to charge the jury on the law applicable to the case.
But for Westfall (Greg), Hartmann didn’t even want to accuse me of shooting Rick at sentencing, i.e., she just wanted to use it to pad her file in case I decided to exercise my constitutional rights to a jury trial on my guilt or innocence for the crime charged (2 RR 7:17-22).
Every time either Hartmann or Gill maneuvered to include an instruction on the law applicable to the case, either voluntary, what Hartmann was pushing for, or involuntary, what Gill apparently believed (at least the both of whom desired the appearance no dereliction of duty, Berger v. United States, 295 U.S. 78, 88 (1935), Westfall (Gill) objected had a fit there was no presumption of innocence at the punishment phase of my case (2 RR 75:24)(4 RR 220:8-11)(5 RR 2:11-18), which only reinforce its necessity and lessened the harm analysis from the “egregious” harm analysis to the “some harm” analysis.[FN 393]
In Bluitt v. State, 70 S.W.3d 901, 904 (Tex. App.--Fort Worth 2-14-02, pet. granted, rev’d on other grounds), Wynn and Kearney sandbagged.¦
See, e.g.,
Lindsay v. State, 102 S.W.3d 223, 230 (Houston [14th Dist.] 2-27-03).
Bluitt’s trial judge (Wisch)[FN 394] failed to sua sponte charge the jury on the law applicable to his case at sentencing, similar to how Gill failed to charge my jury on the law applicable to my case on potential criminal responsibility for allegedly shooting Rick (1 CR 78)(2 CR 33);
Bluitt’s case got overturned on appeal, at least till it was determined the extraneous had already been previously adjudicated beyond a reasonable doubt; my case, no doubt, would've been overturned, at least till Tony (Gregory) filed the state bar grievance, Wynn (W. Reagan) withdrew, and Gill appointed me a bogus appeal attorney to do his bidding and quite possibly interfere with my writ counsel too (3 APP
234:4 &
238:3-5). And Gill charged me $1,000 to do so too (1 CR 86)!
Hartmann prosecuted
Bluitt, and defended the state on appeal, similar to how she did me, but for the appeal; they wouldn’t let her defend the state (See ¶ 181, Ch. 21, above)(1 ARR 3:19), apparently because they had somebody better (1 ARR
1:19 &
3:24-25); see also
Edward Wilkinson, Grunsfeld, Ten Years Later, 35 St. Mary's L.J. 603 (2004).
Wynn's (William Reagan) wife (Sheila Wynn) defended the state in
Ranger v. State (not Reported in S.W.3d, 2005 WL 3436450); incidentally, for some strange reason, Shelia, who had no other apparent connection to my case, subpoenaed Gary and Sherry Green to bring Tarah to testify at my trial for the state (1 CR 88)(2 CR48), then, in some weird twist of fate, or not,
Wynn (W. Reagan) represented the same inmate, Tony, who filed the state bar grievance for me on Westfall causing his (Wynn; W. Reagan) withdraw and costing him his case winning precedent or accolades or trophy or mantle on the fireplace.
Gregory v. State, No. 2-07-418-CR (Tex. App.--Fort Worth 1/28/2010)(See Ch. 21, ¶¶ 176-178, above)(Note: if you want an actual listing of Wynn's name it appears you're going to have to go to
Westlaw or
Lexis).
It (Wynn's (W. Reagan) appeal strategy) also was in
Moore v. State, 165 S.W.3d 118, 120, (Tex. App.--Fort Worth, 4-28-05, no pet.)(the author of the opinion, old ANNE GARDNER, even cited old
Norrid's case at 123 (see Ch. 24, ¶¶ 194, above); not only did Gill himself fail to charge my jury on the law applicable to the extraneous case, Gill also failed to charge the jury on the law applicable to Moore's extraneous case; but like in Bluitt, and unlike in mine, Moore's extraneous had already been adjudicated beyond a reasonable doubt in a prior proceeding. Mine had not, nor has it ever (Note: if you want an actual listing of Gill's name it appears you're going to have to go to
Westlaw or
Lexis).
This was about the first time Jason lived with us. He was helping Corey and me run Corey’s part time moving company during the summer when the kids are out of school when the business picks up. He just moved out and was acting really shitty toward me and my family (maybe because my mom was trying to get him baptized and he bailed at the last minute). His mom (Ellen Dexter) gave him her truck if he would move back home. He and a bunch of friends (i.e., including (1) his brother Jeremy, (2) Jake Hardin (309 Randy)(DOB: 9/19/83), (3) Timothy Wayne Smith aka “Bozo” (D0B: 6-24-83), (4) Jeremy Wayne Esquivel (DOB: 9-30-81), and (5) Justin David England went to a party in Azle in a pasture on 9-9-00, then went to jail for possession of that gun he had in those pictures (3 APP 126-138) that my mom found in his stuff that he left at our house that was in my storage that she gave to my attorney who gave them to the DA.
Tiffani pawned the promise ring that I got her when we first officially got together in Christmas of ‘98, and they (including Jamie Diane Nichols (DOB: 11/24/82) bonded him out. Afterward Tiffani and Jason (Tiffani always seemed to me to be fond of Jason and his blond locks) went to Jamie’s in his truck that Jake and Justin wrecked after Jason went to jail (the cops let them take it rather than impounding it), and Wyann (Jamie’s dad) said he caught them not once but twice in his living room after having run him (Jason) off (the first time).
When I was two, so the story goes, on Tuesday 11-6-84 my dad was on his way to work at Texas
Christian University (TCU) in the maintenance department when a lawyer’s wife (Linda Townsend Skillern; DOB 9-23-48) did a bump-and-go at a stop sign at 3850 South Hulen Street & 3800 Arbor Lawn Drive and pulled out in front of him and clipped him with her right front fender, which projected him up and over her hood and into a telephone pole in the Tangle Wood area by TCU. He was riding a motorcycle. She kept going, and he died at the hospital from internal bleeding (We laid him to rest beside his mom (Judy Eaton-Gaines (DOB: 8-11-46)(DOD: 6-20-79) and her family at Rock Creek Cemetery, FM 202, Glen Rose, 76043). He worked at TCU at night and, so the story goes, was going to school there during the day. His other grandma worked there or something. When it was all said and done, the lawyer’s wife’s husband and them settled out of court for a little under $50,000; note Jeff Kearney was one of the same lawyers who handled my criminal conviction (6 APP 48)(3 APP 238). I remember going to a court hearing or two with my mom and my dad’s grandma (Mary Gaines 1923 to 2009)). I was too little to know what was going on though, I couldn’t have been but four years old at the most--probably younger.
Jimmy Gaines (DOB: 8-1-43)(DOD: 6-23-97) killed himself in the chest behind the Benbrook police station (1080 Mercedes Street, Benbrook, TX 76126)(6 APP 66-70). He made a will before doing it supposedly leaving everything to his brother, George, Jr., but he didn't have anybody witness it and, per Texas Estate Code § 255.153, it automatically went to his wife (Judy Eaton-Gaines mentioned above), who killed herself on 6-20-79 by taking a bunch of pills at a Motel called the El Dorado (11105 Camp Bowie West Blvd, Aledo, TX 76008)(6 APP 3-4), which then went to their three kids (Bart, Sr., Carole (DOB: 4-25-65)(DOD: 12-30-95)(Carole died of cancer around Christmas; she was thirty), & Blake 1971)). So I got my dad’s third, and my four cousins (Gary (DOB: 10-30-82), Kyle (DOB: 1984), Terran (4-12-86), & Brittany (DOB: 12-18-89)(DOD: 9-29-17)(who died in a car wreck in 2017) Roland split their mom’s four ways. My uncle (Blake) and their (Gary, Kyle, Terrin, & Brittney) dad (Max (DOB: 12-25-64) were hot. That whole side of the family had nothing to do with me or my mom, and they surely wouldn't have given me a dime, if they had anything to do with it. But I did; I got another $50,000 (6 APP 48).
I guess that was supposed to make up for all the birthdays, Christmas, etc.,
we missed out on. In any event, it was the worst thing that ever happened to me. I thought I was rich. I thought I was set for life. As a result, I never really took school seriously. And I had no discipline so to speak, at least not after my mom remarried Corey on 4-25-93. Nobody made me mind, though I wasn't a bad kid. I got mixed up in a bad crowd when we moved to Crowley after my mom married Corey. Plus I felt bad because of all that I felt like I missed out with my family.
We buried Jimmy at
Jeff Wickwire buried my grandma after thanksgiving in 2012. Though I couldn't go (because I was in prison and they wouldn’t let me), I would have missed it for nothing in the world (6 APP 56-57).
Daniel came to live with his dad (Daniel Aranda, Sr. (DOB: 10-10-58)(3 APP 24:19-20)) because he was getting in trouble where he lived with his mom, and they were trying to get him away from and off the heroine.
Victoria later told us that when that guy came out and handed them the ecstasy they told him to look at my truck parked off in the distance because there was a SKS pointing at his head (which couldn’t have been further from the truth) then that was when he took off running back to the apartments and they came running up to my truck talking about, “Go! Go!
Jason knew what time I got off because after I got a job there he (Jason) used me as a reference without asking me if he could. Brett did too, only they actually hired him (Brett), only to fire him (Brett) for pissing dirty for that ecstasy he had taken mentioned above; I was never so embarrassed. My manager came and told me about it because he knew he rode with me. He (my manager) said something like, “Well, you never know ¦” Suggesting I was a heroin addict too (ecstasy is M.D.M.A. usually mixed with either heroine or synthetic heroine, which I was completely unaware of at the time). Return to paragraph 58, footnote 9
For some reason I remember them telling me that they had been driving Daniel’s dad’s Avalanche around while he was at work and they were trying to get it back home before he got there, or something like that.
Funny how they (Mindy & Tarah) omitted this part until Charla called asking thereto, and even then she misdirected and distracted away from themselves and Jason and back on and toward me (3 APP 30:7-10); But see (3 APP 27:4-5): even Jason doesn't deny they (Mindy & Tarah included) were shooting it too. Sadly, in my moment of weakness, I had nobody, especially a lawyer (guess they didn't want to rock the boat, i.e., Westfall would have rather been on the in-crowd rather than the out-crowd, help me point this out, either their
inconsistencies, or Charla's inconsistent narration (or blind eye untoward) of their
inconsistencies (3 RR 152:3-4).
Funny with Charla (3 APP 30:10), mentioned below, Foran, and Hartmann how this turned into only Jason, Mindy, and Tarah going and sitting in Tarah’s car to listen to the radio. Anyhow, I remember asking Tarah why she let Jason do that crap (dogging her car out in the middle of the field doing donuts or whatever) to her car, but all she said was it was a piece of crap and didn’t care. That may have been so, I didn't think so, but he was making it a bigger piece of crap.
Although I do not remember whether Mike borrowed my cell phone or Tarah’s (Tarah borrowed her mom’s, Sherry’s, often) to call Paul (Griffin)(DOB: 1/17/84)(3 APP 3:55) and his dealer, I know I never received a call in reference to what happened next, either from them or the cops. My guess is he used Tarah’s, or Tarah offered him her cell phone to call his dealer and Paul, and the cops or Paul or both later called Sherry in reference thereto. For more on the subject, read ¶ 209, and its footnotes, below.
She had collages of photographs like that all over her bedroom walls. Jason and Tarah were throwing up a crown, which is a sign for the Latin Kings (Jason always did that crap in every picture he took. I don’t know why. He never really did anything in the name of the “Latin Kings” or anything that I knew). I was throwing up a “W” for the
Westside because I lived on the Westside of Fort Worth. (Jason & Tarah used to date (Brett used to date her too before and a little after he went to and got out of TYC for tearing up his mom’s house (8516 Willow Creek Court, Fort Worth, Texas 76134) because she took his .9mm and AK47 because he (Brett) had little brothers (Steven & Drake). Jason dated her between Brett’s stint (a year) but they both were still friends. Brett hung out with a lot of blacks, which was why he probably claimed to be a Blood).
From my limited, distorted point of view, I didn’t see any harm in either, i.e., I didn’t think anything of it. I didn’t or couldn't perceive, see, or think that far into the future, I guess.
I’ve since read the police report where Mindy and Tarah say they (Tarah) called me while at Walmart and that I told her that I was there buying bullets, just in case. I deny this. I only talked to them once while gone, and, as mentioned below, this was not it. Moreover, Mindy’s mom, Jerri Deann Westmoreland (DOB: 8-25-62), didn’t have a cellphone, or if she did, she never let Mindy use it that I had ever seen.
I asked her whether they had just left and how come we didn’t see them leaving the Rice Paddy, and she told me that they left shortly after we left to go to Jennifer’s (Jernigan’s) to score some more ice (methamphetamine) and I said, “Oh.” And I asked them why they were driving so slow and she told me they were “snorting a line.”
I’ve since read the police report, Mindy’s, and Tarah’s affidavits where they said:
I was bragging about at least getting a lottery ticket, and
I made them swear or pinky swear not to tell anyone [if I told them] what happened (3 APP 22:61-23:5, 32:52-53, 74:23, 77:43-78:3 & 82:40-42, 97:24, 102:K, 114:24, & 119:5-10)(3 RR 170:8-171:6 & 194:23-195:14 & 199:18-23), like they didn't already know or like we (Jason, Daniel, and I) didn’t just already tell them. “Pinky swear”? Here I am supposed to be some kind of a stone cold killer, according to both Mindy and Tarah, and I'm "pinky swearing." I didn't even know what picky swearing was until I started
wondering what the hell they were talking about and asked around and found out. Plus, I wouldn't use a "rush" and a "thrill" to describe it. Frankly, I don't know anybody who talks like that, but maybe a cop trying to narrate what a bunch of lying kids, whom she got sucked into covering for, were saying. It was awfully
convenient for them.
The next day when I woke up Tarah’s mom (Sherry) woke Tarah and Mindy up for school around 6 a.m. and said, “Oh! Hey Bart. I didn’t know you stayed the night.” And I was like, “Oh, yeah.” And I got up to go to work.
I’ve since read the police report and Mindy’s and Tarah’s affidavits where they said:
Mindy overheard Mike’s friend Paul talking to his friend Rider Bagley the next day at school about his friend (Mike) getting shot, and that the cops were going to take a highschool year book to the hospital so that Mike could identify the girl (Mindy) whom he saw with the guys who robbed and shot him (3 APP 78:16-19 & 83:7-10);
Mindy and Tarah went to Jason’s after school that day to tell him what Paul was saying in class that day (3 APP 78:33 & 83:22-27); and
They discussed Jason’s oldest brother Larry’s ordeal some seven years prior to (3 APP 78:36-37 & 83:20-22)(I also remember in 1997 when Jason and I started hanging out a lot. Larry, Jr., was in the Tarrant County jail awaiting trial on a capital murder rap from 10/13/95 (5 APP 86). I remember his (Jason’s) folks talking about how Larry, Jr., wouldn’t have been in nearly as much trouble had he (Larry, Jr.) just come to them first and told them what happened. Apparently he was just in the car, completely oblivious to what was taking place on the porch, not they owed them a bunch of money for drugs (a drug deal gone bad)(5 APP 87)). Jason must’ve remembered that all them years later (seven (7)) when he (Jason) got in trouble for:
That gun discussed above (See Ch.3, ¶ 26, FN 2 above).
This drug deal gone bad, and
The riot he got in trouble for on the Choice Moore Unit in 2003 or 2004 after he got sentenced and sent to prison for six years for his drug deal gone bad. I was on the Allred Unit with Robert Curtis McKnight aka “Robby” (TDCJ# 01107627) and he told me that he was on the Choice Moore Unit with Jason, and he and a bunch of other white dudes got into a fight with a bunch of Mexicans who had rocks-in-socks (the Mexicans). And though Jason was swelled up like a chipmunk, McKnight said he (Jason) was the only one who did not get shipped to the Middleton Unit where they all stayed in K-Wing there before being further split up and dispersed. After talking to me, McKnight thought Jason may have told/lied “on them” too.
For whatever reason I am not really sure why pages 1-4 of my cell phone records are missing. My mom and Corey got them from our cell phone company and gave them to Westfall (Greg), and by the time I got them (I was already in T.D.C.J. before I ever laid eyes on them) this was all there was and nobody seems to know why. Anyhow, this is all that is apparently left to time.
Before the cops showed up Coker and the other three guys (Clinton “Clint” Muncy (DOB: 11-3-81), Bobby, and Coker) were smoking off some tinfoil which they said was ice (a pure form of methamphetamines). It was in the Purple Crown Royal Bag.
I know that Mindy and Jerri called Charla (DOB: 2-2-62) back after that first time she (Charla) left and told her that I just up and confessed to them:
single-handedly robbing and shooting Mike and Andy;
how much of a rush and a thrill it was for me to do so;
robbing and shooting a whole bunch of other people in or around the surrounding area;
hiding the shotgun;
wanting to kill them; and/or
wanting to go to Mexico,
That I:
called constantly whether anybody knew anything; I’m sure they probably were getting calls constantly between themselves (Kodi, Jason, Jake, Jennifer Boston (DOB: 8-3-84), etc.), but not from me;
supposedly told them to tell the cops that they didn't know us or to make up three names for me, Jason, and Daniel. That’s ridiculous. I didn't ask them to do any such thing, although it wouldn't surprise me if Jason and them first considered it together.
Needless to say, I deny this too;
I had no shotgun to hide because mine got stolen some 26-days earlier on 1-26-02;
That doesn't even make sense; why I would tell the same people whom I wanted to supposedly kill where they could tell their loved ones where I was going;
It was Daniel and Jason who were talking about whether we should go to Mexico and stay at Daniel's grandma’s who supposedly lived there or something;
After that second day when Mindy told me about Paul and what he was saying I never talked to them again. (The plan was for us to just lay low, or so they said, until they heard anything further.) I’ve also since read where Shipp (Joseph badge # 3101) and Charla wrote I:
tried to escape out the back window of the house I was arrested at (this is covered in more detail below).
told Hanlon that the $100,000 bond I had not been given yet would not be a problem for me to make because of my trust (but yet my friends they knew!).
We (Charla & I) had a conversation about me signing Miranda waiver, etc., and wanting to talk to her. I hadn’t even been given a bond yet, so how I knew my bond was $100,000 is beyond me, unless I was clairvoyant, which I am not. Plus I didn't know Charla from the man on the moon, so how I knew to ask to speak to her is beyond me. But yet when they took Daniel to speak to her (Charla) they just took him; he didn't ask. She must have been hoping to get a chance to apply her third degree (Miranda v. Ariz., 384 U.S. 436 (1966)) training on us, but neither worked!
How was this conversation supposed to have gone down?
Charla got up and closed her file folder and went into the other room to do the jail paperwork (what jail paperwork? The jail paperwork Bush filled out at MLEC, or the warrant for my arrest jail paperwork?) and I hollered out to nobody in particular that I had not done anything wrong and Charla hollered back if that was so then why was I trying to escape out the back window of the house I was arrested at?
Did she have to re-enter the room/closet or was the door open and she just hollered back from somewhere outside the door the question of why I was trying to escape?
Did I have to holler back that I swore on my life it wasn’t me and that my family would vouch for that (just like her officers (the Blue Knights) vouched for her?) or was she standing right there at the door?
Did she have to holler back why if it was not me why both Fineman and Shipp (although only Shipp said he recognized me (they’re all brother’s in blue), or was she right there? How did this supposed conversation between us take place?
When I got arrested on Jason’s birthday on 8-18-01 (although it was 8-15-83, 8-18-01 was a Saturday) as discussed a little below (See Subchapter 14.B. below), I encountered some of Tarrant County’s overcrowding problem. It took about three days to get processed through the basement part of the jail before getting upstairs to a bed and shower. The holding tanks in the basement had a bench around all four corners and so many people packed in there that we weren’t only shoulder to shoulder, but some of us (a lot of us) sitting on the floor too (for (3) three days). They could barely even close the door. I guess that was the only place Fort Worth had to take its prisoners at the time (Tarrant County Jail). And I was arrested for a misdemeanor, at least when they got everything straightened out (See Ex Parte Barton R. Gaines, Case No: HB 959 (2020); Tr. Ct. Case No: 0819607)(2001).[1], [2], [3], [4], [5], [6], [7], [8], [9]. So, it appears, subcontracting with Mansfield was Tarrant County’s, or Fort Worth’s, or both, solution to the crowing problem.
I couldn’t see the entrance where we entered the parking lot and Haynie almost hit us because the corner of the building of Two Bucks was blocking my view (3 APP 291))(Obviously Haynie was not gone, and apparently the reason he (Haynie) was so mad (angry), i.e., he (Haynie) threw an empty beer bottle at my truck, and apparently the reason why he (Haynie) was still there was because his car died, and now he (Haynie) needed somebody to jump him off. Apparently Haynie shot up to Two Bucks down the street from his house, apparently where he had been sitting up on disability for the last 20 years (3 APP 280:20) after he got a jump for his non-street legal car to get some more beer).
Note: in the police report attached to this affidavit where it says Haynie’s car was a blue four door Ford and the
license plate number needed to be corrected (3 APP 274:6-11), and note where Det. Johnna M. Bridges, badge #2888, says he changed the vehicle and plate number not to Haynie's car, but my truck; despite this incredulity, Haynie probably switched plates with the four door Ford because the red two door hoopty wasn’t street legal. Apparently wanting to present the best possible case to the D.A., who would ever notice (3 APP 278:18-19); I specifically remember Haynie flipping up the front seat to reach in and pull out some crutches, and if he was in the blue four door he wouldn’t have had to flip up the front seat.
So much for Thetford's theatrics (nobody (i.e., Mendoza) but he said I encouraged Tony); guess he was trying to cast as wide a net as he possible could to justify their (his) mistake and my misplaced arrest (3 APP 275:50-53).
See In re R.R., 420 S.W.3d 301, 303-04 (Texas Appeal--El Paso 2013)(To prove that Appellant engaged in delinquent conduct, the State had to establish that Appellant knowingly or intentionally possessed a usable quantity of marijuana in the amount of two ounces or less. Tex. Health & Safety Code Ann.
§ 481.121(a), (b)(1) (West 2010); Tex. Fam.Code Ann.
§ 51.03(a)(1) (West 2008). Accordingly, the State bore the burden to prove beyond a reasonable doubt that Appellant
exercised care, control, and management over the contraband and
that he knew he possessed contraband. Brown v. State, 911 S.W.2d 744, 747 (Tex.Crim.App.1995)).
Texas Penal Code § 7.02. Criminal Responsibility for Conduct of Another,
A person is criminally responsible for an offense committed by the conduct of another if:
acting with the kind of culpability required for the offense, he causes or aids an innocent or nonresponsible person to engage in conduct prohibited by the definition of the offense;
acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense; ‰or
having a legal duty to prevent commission of the offense and acting with intent to promote or assist its commission, he fails to make a reasonable effort to prevent commission of the offense¦. (2020).
Edward must have had a heads up because despite being paid to handle the case, he said he did all that he was going to do (which was obviously nothing; he didn’t even know the cops screwed up). I called my mom to call him, and that was what my mom told me he (Ed.) told her (7 APP 2-5). Return to paragraph 143, footnote 37
Heiselbetz v. State, 906 S.W.2d 500, 511 ((Tex. Crim. App. 1995))(the CCA has not hesitated to declare a judge abused his discretion where the denial of a continuance (i.e., to bench warrant Tony back to the county from T.D.C.J.) resulted in counsel being unprepared).
Penal Code--Title 9. Offenses Against Public Order And Decency--Chapter 42. Disorderly Conduct And Related Offenses--Sec. 42.01. Disorderly Conduct. (a) A person commits an offense if he intentionally or knowingly: ¦ (2) makes an offensive gesture or display in a public place, and the gesture or display tends to incite an immediate breach of the peace¦. Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1977, 65th Leg., p. 181, ch. 89, Sec. 1, 2, eff. Aug. 29, 1977; Acts 1983, 68th Leg., p. 4641, ch. 800, Sec. 1, eff. Sept. 1, 1983; Acts 1991, 72nd Leg., ch. 145, Sec. 2, eff. Aug. 26, 1991; Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994; Acts 1995, 74th Leg., ch. 318, Sec. 14, eff. Sept. 1, 1995; Acts 2001, 77th Leg., ch. 54, Sec. 4, eff. Sept. 1, 2001; Acts 2003, 78th Leg., ch. 389, Sec. 1, eff. Sept. 1, 2003. Amended by: Acts 2011, 82nd Leg., R.S., Ch. 691 (H.B. 359), Sec. 6, eff. September 1, 2011. Acts 2013, 83rd Leg., R.S., Ch. 953 (H.B. 1791), Sec. 6, eff. September 1, 2013. Acts 2013, 83rd Leg., R.S., Ch. 1407 (S.B. 393), Sec. 19, eff. September 1, 2013. Acts 2013, 83rd Leg., R.S., Ch. 1409 (S.B. 1114), Sec. 9, eff. September 1, 2013.
Penal Code>>Title 10. Offenses Against Public Health, Safety, and Morals>>Chapter 49. Intoxication And Alcoholic Beverage Offenses>>Sec. 49.04. Driving while intoxicated. (a) A person commits an offense if the person is intoxicated while operating a motor vehicle in a public place. (b) Except as provided by Subsections (c) and (d) and Section 49.09, an offense under this section is a Class B misdemeanor, with a minimum term of confinement of 72 hours¦. Amended by Acts 1995, 74th Leg., ch. 76, Sec. 14.55, eff. Sept. 1, 1995. Amended by: Acts 2011, 82nd Leg., R.S., Ch. 960 (H.B. 1199), Sec. 2, eff. September 1, 2011.
Penal Code--Title 10. Offenses Against Public Health, Safety, And Morals--Chapter 49. Intoxication And Alcoholic Beverage Offenses--Sec. 49.02. Public Intoxication. (a) A person commits an offense if the person appears in a public place while intoxicated to the degree that the person may endanger the person or another. ... (c) Except as provided by Subsection (e), an offense under this section is a Class C misdemeanor ... (e) An offense under this section committed by a person younger than 21 years of age is punishable in the same manner as if the minor committed an offense to which Section 106.071, Alcoholic Beverage Code, applies. Added by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994. Amended by Acts 1997, 75th Leg., ch. 1013, Sec. 12, eff. Sept. 1, 1997. Amended by: Acts 2007, 80th Leg., R.S., Ch. 68 (S.B. 904), Sec. 25, eff. September 1, 2007.
Texas Code of Criminal Procedure Art. 12.02. Misdemeanors, (a) An indictment or information for any Class A or Class B misdemeanor may be presented within two years from the date of the commission of the offense, and not afterward. (b) A complaint or information for any Class C misdemeanor may be presented within two years from the date of the commission of the offense, and not afterward. Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722. Amended by Acts 1973, 63rd Leg., p. 975, ch. 399, Sec. 2(B), eff. Jan. 1, 1974. Amended by: Acts 2009, 81st Leg., R.S., Ch. 472 (S.B. 410), Sec. 1, eff. September 1, 2009.
State v. Daugherty, 931 S.W.2d 268, 270 (Tex. Crim. App. 1996)(the fact that the evidence could've been obtained lawfully doesn't negate the fact that the evidence was obtained unlawfully; under art. 38.23 of the CCP the inquiry regarding the possible legal attainment of the evidence should never be reached once its causal connection to the evidence have been established the unlawfulness).
Ex parte Wickware, 853 S.W.2d 571, 573 (Criminal Court of Appeals 1993)(when inmate is given stacked sentence and was simultaneously confined on more than one of those causes, presentence credit under art. 42.08 applies to each of those sentences, and credit must be separately awarded, since sentences are sequentially executed).
See Texas Administration Code (TAC) § 145.6(d)(1).
An offender considered for parole or mandatory supervision shall be notified of the parole panel's decision in writing.
Consideration and notification of the parole panel's decision includes any cumulative, pre-final consecutive sentence.
Upon considering a case for parole or mandatory supervision, the parole panel shall make a record of its decision and the reasons for its decision on the minute sheet of the offender's file.
Reasons for the parole panel's decision include but are not limited to the following:
criminal history;
nature of offense;
drug or alcohol involvement;
institutional adjustment;
adjustment during periods of supervision;
participation in TDCJ-CID proposed or specialized programs;
time served;
felony offense committed while incarcerated;
discretionary mandatory supervision;
gang affiliation;
other.
Parole approval will be indicated by "A" and denial will be indicated by "D."
Source Note: The provisions of this §145.6 adopted to be effective August 15, 1989, 14 TexReg 3812; amended to be effective November 4, 1996, 21 TexReg 10437; amended to be effective February 15, 2000, 25 TexReg 1129; amended to be effective October 29, 2000, 25 TexReg 10569; amended to be effective September 13, 2012, 37 TexReg 7194; amended to be effective May 10, 2015, 40 TexReg 2421.
Though they carried the same penalty range (§ 19.03(b), § 12.31, § 15.01(d), § 29.03(b), & § 12.32)
, he told my folks that he didn’t want that on my record when I got out and applied for a job or tried to get an apartment (though for either I got to give them my finger prints for a copy of my arrest record, as opposed to my conviction record. So what good that did!).
Code Of Criminal Procedure--Title 1. Code Of Criminal Procedure--Chapter 37. The Verdict--art. 37.14. Acquittal of higher offense as jeopardy. If a defendant, prosecuted for an offense which includes within it lesser offenses, be convicted of an offense lower than that for which he is indicted, and a new trial be granted him, or the judgment be arrested for any cause other than the want of jurisdiction, the verdict upon the first trial shall be considered an acquittal of the higher offense; but he may, upon a second trial, be convicted of the same offense of which he was before convicted, or any other inferior thereto (emphasis added). Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.
My family and I lived a few houses down from Billy, and a few streets over from where Billy’s grandma lived, when we first moved to Crowley in 1992 (we lived at 332 North Heights)(the same house Mindy, her older brother (JD), and mom (Jerri) moved into in 1997 (3 APP 77)).
Billy and his older brother Tommy (who is married to April Hairston, whose (April’s) older sister (Laura) was married to Tony Durham) who is now a Fort Worth Fireman, got me and my stepbrother (Justin) into racing bikes at Green Goat (SHCR 154). Then when they got into paint ball, we got into paint ball (6 RR DX 8). Then they got into racing four wheelers, which was too expensive for us. Billy’s and Tommy’s dad (Bill) had a lot of money; he owned the machine shop behind the Conoco in Crowley.
In 1997 before Mindy and her family moved to Crowley from wherever they lived (Horse Shoe Bend in Weatherford?), Billy’s psych. Doctor got his psych meds twisted or crossed and the first year they opened our new H.F. Stevens Middle School, Billy took his grandma’s county issued .40-caliber glock to school and held up his Special Ed. Class. I was in lunch period (Seventh Grade; he was in Eighth) when they started evacuating the school onto the school buses and taking us to Crowley high school. We were rounding the corner (coming back) as the Crowley PD (Richard Lee Chapman, badge #3034) was escorting Billy out the front door in handcuffs. Billy got two years TYC for that. His grandma used to call my house just to let me know how Billy was doing.
Based on the voir dire record, it appears neither Mr. Bradberry, Ms. Mercado, Ms. VanCleve, or Mr. Carrillo were biased, for example, against our involuntary intoxication defense toward the extraneous, or our voluntary intoxication defense toward the crime charged.
The jury requested the group photo Mike took and the two photos of Mike and Andy in the hospital in their first note at 11:15 a.m., then 30 minutes later at 11:45 a.m. the jury reached their verdict (1 CR 83 & 84)(2 CR 38 & 39).
WESTFALL: Bart ¦ has already pled guilty to two cases of aggravated robbery, robbery with a gun, to [Gill], and the 12 people who come over here and sit, that’s the first thing they’re going to hear [Gill] give his instructions is Bart ¦, my client here, will plead guilty to two separate indictments of aggravated robbery, robbery with a gun, to the jury (2 RR 75:10-17).
WESTFALL: And then we are going to go on with what is called a punishment case. And in a punishment case all that is decided is what is the proper punishment in this case. So that is essentially what I’m going to talk to y’all about, is the punishment case, the range of punishment, and certain constitutional rights that attach to that. There’s not a presumption of innocence in a punishment case [why he didn’t he inquire Dean, Blauvelt, Ms. Mills, Davis 1 and / or 2, Swanson, Mr. Mills, Lemons, Wakefield, Richardson, Thomas, Chambers, and Taylor, who all expressed bias toward the law on criminal responsibility regarding any kind of temporary insanity defense, whether it was voluntary or involuntary intoxication] Y’all heard of a presumption of innocence? ¶ In the guilt-innocence case a person is presumed innocent until the State proves its case beyond a reasonable doubt [legal fiction!]. So usually in a voir dire I would ask when you walked in and you looked at Bart, did you wonder in your mind, “What did he do?” Well, you know what he did. He committed armed robbery, and that’s what I want to talk to you all about (emphasis added)(2 RR 75:18-76:10).
WESTFALL: And I am dreadfully afraid that, you know, to have him plead guilty to this type of offense to 12 people, and I’m very concerned about him getting a fair trial [yeah, right], and that’s why I want to second what she [Hartmann] said earlier about let’s talk, okay .¦ (emphasis added)(2 RR 76:11-16).
GILL: Ladies and gentlemen, that concludes the voir dire examination by the attorneys, and there is now a procedure we have to go through in the courtroom which determines which of you will be the 12 that serve on the jury¦. While we do that, you can take a break outside. I’ll meet you back outside the courtroom door in 30 minutes. That will be 5:00. At that time we’ll come back into the courtroom, and the 12 of you that will make up our jury will be seated over here in the jury box¦. Does either side have challenges for cause?... Please turn in your peremptories at ten minutes till [i.e. 5 p.m.].... (Short recess)[approx. 4:30 p.m.] (Open court, Defendant present [suggesting that I had been gone, thus confirming my account], jury panel not present). Are both sides ready to bring the venire back in? (2 RR 133:13-23, 134:8-9, 136:10-11, & 136:17-21).
GILL: I’m going to call the names of the 12 people who will make up our jury. As I call your name, please come through this open gate right over here and have a seat up in the jury box. [1] John Bart Bradberry [DOB: 6-19-70], [2] Toni Mercado, [3] Stephanie Dean (DOB: 2-4-66), [4] Cymbre Blauvelt, [5] Cindy VanCleve, [6] Michelle R. Lemons (DOB: 5-5-60), [7] Marva R. Thomas (DOB: 1-27-40), [8] Eric Carrillo (DOB: 2-7-74), [9] Barbara Chambers, [10] Timothy Fauble, [11] Erin M. Armstrong (DOB: 5-30-78)? and [12] Tina Marack. (2 RR 137:1-8).
When Jheen was testifying I recall standing up to get a drink of water. There was a pitcher of water in the middle of our table. When I stood up to reach across the table to get it, the bailiff, Mr. Darusha, who was sitting at a little table right behind me to my left, who was standing up behind me, whose job it apparently was to stand up every time I stood up, and whose job it was to usher me back and forth from the little holding tank behind Gill’s courtroom, said, “Ask your attorney to pass you the pitcher”, or something to that effect.
Mitchell v. U.S., 526 U.S. 314, 329-330 (1999)(Sentencing court could not draw adverse inference from defendant’s silence in determining facts relating to circumstances and details of the crime. U.S.C.A. Const. Amend. 5). Return to paragraph 164, footnote 56
FORAN: And did he also tell you when the last time he had used alcohol and Xanax? MIMI: According to my notes, before coming to the jail. FORAN: Before coming to the jail¦. FORAN: Okay¦. Last used before coming to jail (4 RR 212:18-213:5).
MIMI: Yes, sir -- no, I am sorry, sir. Here except marijuana. FORAN: Except marijuana? MIMI: Yes. FORAN: Okay. What does that mean? Last used before coming to jail. What does December mean? [...] (4 RR 212:25-213:7).
She (Connell) told me during this first visit that Westfall (Greg) was very good and that I would probably only get or serve three years; it was very reassuring and comforting to me during a time of tremendous and treacherous turmoil.
HARTMANN: Set the number of years, whatever’s appropriate, and maybe, maybe in a particular case 30 years [adjusted to off-set the effects of parole, of course, which would’ve been 7.5 years, a first time offender, not 18.5 years] is appropriate¦. (2 RR 61:24-62:1).
HARTMANN: I am going to ask you to start at 40 because that’s what the case deserves (5 RR 19:15-16).
WESTFALL: The state’s offer was 40 years. The state’s offer never, ever came down from 40 years [That’s our story and we’re sticking to it, right?]. I never guaranteed Gaines of probation (SHCR 94, 2d to last ¶).
Gill, of course, added an extra layer of confusion by first appointing me Whitney Wiedeman (1 CR 140-41)(2 CR 80-81) by mistake; I remember writing my mom the second I got him to call him, etc., but he said he didn't know why he was appointed to represent me. That he only handled civil cases. Also see here.
While preparing my direct appeal brief I met another one of Francis’ clients (some big burly black guy)
whom Francis also filed a no-merit brief for who also had an aggravated robbery, and who also filed the same motion to go pro se.
Around September 2003 I remember Tony was yanked into court, convicted, and sentenced to 40 years, for what, I did not know. Then I was yanked into court and made to account for the possession of marijuana under-two ounces case that I was out on bond for when I got picked up for the robbery case (I called my mom after arraignment to call my attorney, Ed. G. Jones (1319 Ballinger Street, Fort Worth, Texas 76102, (817) 335-0200), who had been handling the case before I got arrested for the robbery, but she said he told her that he had done all that he was going to do and that I was on my own. So I had to settle for the court appointed whom they appointed me, Leticia Sanchez-Vigil.
See T.D.C.J. Board Policy B.P.-3.-91.1.B.1.(Restricted Correspondents 1. Other Offenders may not correspond with other offenders unless:
a. The offenders are immediate family members, which means parents, stepparents, grandparents, children, stepchildren, spouses, common law spouses, siblings, aunts and uncles, and nieces and nephews;
b. The offenders have a child together, as proven through a birth certificate, and the parental rights have not been terminated;
c. The offenders are co-parties in a currently active legal matter; or
d. The offender is providing a relevant witness affidavit in a currently active legal matter. Prior to an offender being approved to correspond, relationship issues shall be verified through the records office and legal matters shall be verified through the access to courts department).
I remember my mom and Corey telling me about it after it happened, and they still had the card Benbrook Officer Zomnir, badge number 215 or 3666, gave them in response thereto (3 APP 239). She and Corey had some of their Christmas stuff in there and Corey said the cops stole his little choo choo train that he had bought the year before to go around the Christmas Tree (Awesome). Besides Corey and my mom, I was the only one with a key to the storage, and when the cops gave my truck back (at Neto's beer and wine Gas station 2611 NE 28th St, Fort Worth, TX - 76111)(My grandma and her husband had Corey and my mom go with them to get my truck; Corey told the officer who was delivering it said it was kind of weird having them pick it up there (a bad part of town), and the officer said, “Sir, this whole thing is weird. We never do this”)(3 APP 224-228) that the key was still on my key ring. Corey and my mom said they even put the lock back on my storage after they demolished the inside looking for the shotgun)(Incidentally, this is what the State did to my truck. They gave my truck not back to me, but my grandma, who used it as a trade in on a brand new 2003 Jeep Grand Cherokee Laredo and, not even three weeks later, ran out in front of a Chevrolet Tahoe sitting on 20s at Bryant Irvin and I-20, stopping just short of sliding down the embankment from the access road to I-20 where all the traffic was. Because it was paid for in full, she wasn't required full coverage or only had liability. Twenty years later, I have nothing, much less a truck with low mileage)
Mowla was a staff attorney there on the Supreme Court of that State who boasted a 90% success rate at keeping New York prisoner’s writs from getting through him (so much for a neutral court; surely Texas isn’t like that), and who apparently learned while there (straight out of law school and bar certified) that the approximate 10% of the writs that got through him were the actual innocence writs.
HARTMANN: You have been mentioning the name Bart. Do you see anybody in the courtroom that you recognize to be the Bart that was out at the particular location that night? MIKE: Yes, ma’am. HARTMANN: Can you describe where he’s located and something that he’s wearing? MIKE: He’s wearing a tie and coat [as were Foran, Westfall (Greg), and Minick (Cheyenne)].He’s sitting three people down to you, to your left [Minick?!][(1) Foran was to Hartmann’s left, followed by (2) Westfall (Greg), and (3) Minick (Cheyenne); Minick (Cheyenne) was the third person, and blond headed, like Jason; Minick (Cheyenne) was the only blond headed guy sitting at the defendant’s table]. HARTMANN: Is he the third person or fourth person? MIKE: The fourth person [counting (1) Hartmann, (2) Foran (3) Westfall (Greg), and (4) Minick (Cheyenne), Mike again identified Minick (Cheyenne)](3 RR 54:22-55:6).
HARTMANN: Who are the people in State’s 25? MINDY: Bart, Tara, Jason, Daniel and me. HARTMANN: Is that you down there on the left? MINDY: Yes. HARTMANN: You had a different hair color [Yeah! For trial it was Gothic black] then? MINDY: Yes (3 RR 176:11-16)(6 RR SX 25).
FORAN: The person that you know as the driver you referred to him as Bart earlier, do you see that person in the courtroom today? ANDY: I don’t have my glasses on. I can’t really see very well. FORAN: You didn’t bring your glasses with you? ANDY: I forgot them. FORAN: Okay. ¶ Well, I'll tell you what. May I have the witness step down? GILL: You may. FORAN: How bad is your eyesight? ANDY: I can see people, but I can’t tell details on the face. FORAN: At this distance can you? ANDY: I can see -- FORAN: Can you see everyone at these two tables now? ANDY: Yes. FORAN: Do you recognize anybody at these two tables from that evening? ANDY: I think that’s Bart. FORAN: You are pointing -- ANDY: Which person [Andy asked him which person I was!]? FORAN: Next to the officer [Foran told him who I was sitting beside]. ANDY: The guy next to the officer [Andy asked him which person I was again!]? FORAN: Okay. Why don’t you have a seat? [Foran just told him where I was who I was](3 RR 98:10-99:10).
[Andy] met with me at the detective office and I did show him a photo spread containing [Daniel]. He studied the photo spread for a while and then pointed to [Daniel] and said that he looked most like the third robbery person. I asked how sure he was and he said that he was the only one in the photo spread that looked like him. I then had him initial the photo of [Daniel]. I then dated the photo spread due to [Andy]’s injury that makes it difficult for him to write. ¶ [Andy] stated he did not recall being struck by [Daniel] as [Mike] reported. I then showed [Andy] the photos of [Bart, Jason, & Daniel] and [Mindy & Tarah](emphasis added). He did identify both [Bart] and [Jason] and [Daniel]. He also stated that in the photos [Daniel] was wearing [his] Dallas Cowboy jacket (3 APP 42:4-16).
Before we left we agreed that we weren’t going to tell Bart that we were doing because we didn’t know what Bart would do if he knew what we were going to do. He had already killed two innocent people, why wouldn’t he go after the witnesses (3 APP 79:27-30).
Jason was scared and stayed up all night, worried that Bart was going to come after him (3 APP 80:20-21).
After work Thursday on 2-21-02 around three or four in the afternoon Jason called me from Daniel’s dad’s (Daniel Aranda, Sr. (DOB: 10-10-58)(3 APP 24:20)) house in Crowley, up the street from his dad’s (See Chapter 9).
[Jason] then stated that he and some friends were riding around and about 4 p.m. On 2-21-02 met up with [Bart]. They followed [Daniel] home so he could drop off his vehicle. They got into [Bart]’s truck and went to the “rice paddy” where they met with the three girls (3 APP 26:61-64).
When we got there, there were two girls in a red car and 3 guys in a new silverish gray pickup truck (3 APP 63:14-15).
FORAN: When you arrived there, were there any people there? ANDY: Yes, there were five people there. FORAN: Were they all men, all women? ANDY: No. There were three guys and two girls (3 RR 93:5-9).
[Jason] then stated that he and some friends were riding around and about 4 p.m. On 2-21-02 met up with [Bart]. They followed [Daniel] home so he could drop off his vehicle. They got into [Bart]’s truck and went to the “rice paddy” where they met with the three girls (3 APP 26:61-64).
We went out there [and met them]. There were other guys with them but they were in a different car. We all decided it was too cold and they told us to follow them to the rice patty. We had probably been there about 15 minutes when two guys came out there in a little dark colored car.¦ We waited for our other friends to come back because they went to Sonic (3 APP 77:16-19 + 28).
HARTMANN: And who all from your group -- who all ended out there at the Rice Paddy as you call it? MINDY: Me, Tara[h], Daniel, Jason, Bart, Jake and a guy Rocky, and I think that was all [what! no [K]od[i]?]. HARTMANN: Okay. And Jason [did she mean, “Jake”?] and Rocky, were they in the same vehicle with Bart and Jason and Daniel? MINDY: No. HARTMANN: Separate vehicles? MINDY: Yes. HARTMANN: So were there three sets of vehicles out there? MINDY: Yes. HARTMANN: All right. When you all three - I guess three sets of you-all get out there, were there any other people out there at that time? MINDY: No. HARTMANN: Did some people eventually arrive out there? MINDY: Yes. HARTMANN: One car, two cars? MINDY: One. HARTMANN: One? And was there -- was there more than one person in the car that arrived? MINDY: Yes. HARTMANN: How many? MINDY: two (3 RR 159:4-160:2).
We went out there and were only there for a couple of minutes and someone decided they wanted to go somewhere they call the rice patty. I followed this other kid who was there and Bart was following me¦. We were chilling out there for a little while. The other car full of guys left to go get something to eat. It was just me, Mindy, [K]od[i], Jason, Bart, and Daniel¦. A car pulls up and they are just sitting there. We thought it was someone we knew and we all got out of the truck and went over to them still sitting in the car (3 APP 81:18-29).
FORAN: Did you later go to the lake? TARAH: Yes. FORAN: Okay. Were there a few people out there or a lot of people? TARAH: There were three cars out there and quite a few people, but I didn't know all of them. FORAN¦. Did you decide to go somewhere else? TARAH: Yes. FORAN: Where did you go? TARAH: A place called the Rice Paddy. FORAN: Was it just going to be you and Mindy or were other people going to be there? TARAH: Everyone that was at the lake followed us out there. FORAN: When you got there, who was there? TARAH: All of us, Mindy and [K]od[i], Bart and Jason and Daniel, and then the other people that were with them that -- I don’t know their names. FORAN: Was anybody named Jake there? TARAH: Yeah. FORAN: Who’s Jake? TARAH: he’s another one of our friends. ¦ FORAN: Did other people show up that you didn’t know? TARAH: Yes¦. FORAN: Okay. When they arrived, who was still there? TARAH: The same one that was there -- those were the same people that were all there (what a horrible liar!) (3 RR 187:7-188:23).
HARTMANN: Was anybody with you and Andrew when you went out to this particular location? MIKE: No. Just me and Andy. HARTMANN: When you got out there, were you the only one out in that area? MIKE: No, there were quite a few people out there actually. Kind of surprised me. I had never seen that many people out there. HARTMANN: About how many people were out there when you and Andy drove up? MIKE: Seven to nine. There quite a few (3 RR 51:11-21).
We went out there and met them. There were other guys with them but they were in a different car. We all decided it was too cold and they told us to follow them to the rice patty. We had probably been there about 15 minutes when two guys came out there in a little dark colored car.¦ We waited for our other friends to come back because they went to Sonic (3 APP 77:16-19 + 77:28-29).
HARTMANN: And who all from your group -- who all ended out there at the Rice Paddy as you call it? MINDY: Me, Tara[h], Daniel, Jason, Bart, Jake and a guy Rocky, and I think that was all [what! no [K]od[i]?]. HARTMANN: Okay. And Jason [did she mean, “Jake”?] and Rocky, were they in the same vehicle with Bart and Jason and Daniel? MINDY: No. HARTMANN: Separate vehicles? MINDY: Yes. HARTMANN: So were there three sets of vehicles out there? MINDY: Yes. HARTMANN: All right. When you all three - I guess three sets of you-all get out there, were there any other people out there at that time? MINDY: No. HARTMANN: Did some people eventually arrive out there? MINDY: Yes. HARTMANN: One car, two cars? MINDY: One. HARTMANN: One? And was there -- was there more than one person in the car that arrived? MINDY: Yes. HARTMANN: How many? MINDY: two. (3 RR 159:4-160:2).
We went out there and were only there for a couple of minutes and someone decided they wanted to go somewhere they call the rice patty. I followed this other kid who was there and Bart was following me¦. We were chilling out there for a little while. The other car full of guys left to go get something to eat. It was just me, Mindy, [K]od[i], Jason, Bart, and Daniel¦. A car pulls up and they are just sitting there. We thought it was someone we knew and we all got out of the truck and went over to them still sitting in the car (3 APP 81:18-29).
FORAN: Did you later go to the lake? TARAH: Yes. FORAN: Okay. Were there a few people out there or a lot of people? TARAH: There were three cars out there and quite a few people, but I didn't know all of them. FORAN¦ Did you decide to go somewhere else? TARAH: Yes. FORAN: Where did you go? TARAH: A place called the Rice Paddy. FORAN: Was it just going to be you and Mindy or were other people going to be there? TARAH: Everyone that was at the lake followed us out there. FORAN: When you got there, who was there? TARAH: All of us, Mindy and [K]od]i], Bart and Jason and Daniel, and then the other people that were with them that -- I don’t know their names. FORAN: Was anybody named Jake there? TARAH: Yeah. FORAN: Who’s Jake? TARAH: he’s another one of our friends. ¦ FORAN: Did other people show up that you didn’t know? TARAH: Yes¦.. FORAN: Okay. When they arrived, who was still there? TARAH: The same one that was there -- those were the same people that were all there (emphasis added)(3 RR 187:7-188:23).
We were just chilling there for a little while. Me and Mindy were sitting in Bart’s truck. Bart told us he had taken 6 kolaropons. They are like muscle relaxers he said a word like psychological. He also had been drinking with them (3 APP 81:24-27).
On or about February 21, 2002 [Bart] in the County of Tarrant and in the State of Texas did consume pills, Klonopin (1 CR 72:4)(2 CR 27:4).
With Jerri at the helm of this story, understandably so, trying to protect her daughter (parenting), and some of her neighborhood favorites like Jason (it takes a villiage). But who wouldn’t do that for their kid, right? (See Subchapter D.29.).
After speaking with [Jason], I called [Mindy] and asked her if anyone got the gun out when they were at the “rice paddy.” She said that Bart did get it out and he and Daniel fired it 2 or 3 times. She said [Jason] was in the car with her at the time [what? She, Jason, & Tarah didn’t shoot it? How convenient](3 APP 30:7-10).
HARTMANN: Let me ask you this: When you were out at the Rice Paddy before Mike and Andrew showed up, did Bart have the shotgun out? MINDY: Yes. HARTMANN: Was he shooting it off? MINDY: Yes. HARTMANN: Was it being passed around or was he the only one or how did that work or do you know? I don’t remember. I am pretty sure there was more than him that shot it. That Jason or Daniel were shooting (3 RR 177:21-178:9).
I knew he had that shotgun out there that night because he always carr[ies] it [not that she had Brett’s & Jason’s in her trunk, and/or that she and Mindy shot it too, right?]. Me and Mindy and Jason and [K]od[i] went and sat in my car and listened to the radio. Bart comes up to us and tells us to follow him to go do something [nice way to cover Jason setting up the drug deal]. He told Jason to come ride with him (3 APP 81:35-36 & 38-40).
FORAN: Okay. Now, I want to back up just a minute because there was something I wanted to ask you about when you were out at the Rice Paddy. ¶ Did you ever see Bart with a weapon out there? TARAH: Yes. FORAN: What did you see him with? TARAH: A shotgun. FORAN: What were they doing with it? TARAH: They shot it off in the air. FORAN: When you say “they,” was it just Bart or was it the other people? TARAH: I think Jason and -- FORAN: Jason maybe too? TARAH: (No response)[Whoops! Did she say something wrong or expose a prior lie?] FORAN: Had you seen Bart with that shotgun before? TARAH: Yes. FORAN: So it was his weapon, right? TARAH: Yes (3 RR 198:12-199:5).
A while later "it was already darksome dudes (Mike and Andy) showed up; they pulled up parallel to the driver side of my truck with their lights on bright then got out (of their car) and came up to my truck smoking on a blunt like, “Hey dude. What’s up? What’re y’all doing out here” (See Chapter 9).
After speaking with [Jason], I called [Mindy] and asked her if anyone got the gun out when they were at the “rice paddy.” She said that Bart did get it out and he and Daniel fired it 2 or 3 times. She said [Jason] was in the car with her at the time (3 APP 30:7-10).
HARTMANN: Let me ask you this: When you were out at the Rice Paddy before Mike and Andrew showed up, did Bart have the shotgun out? MINDY: Yes. HARTMANN: Was he shooting it off? MINDY: Yes. HARTMANN: Was it being passed around or was he the only one or how did that work or do you know? I don’t remember. I am pretty sure there was more than him that shot it. That Jason or Daniel were shooting (3 RR 177:21-178:6).
At first Tarah, as did Mindy, omitted the part about the shooting of the shotgun at the Rice Paddy (3 APP 77:12-31)(3 APP 81:12-36).
I knew he had that shotgun out there that night because he always carr[ies] it [not that she had Brett’s & Jason’s in her trunk, and/or that she and Mindy shot it too, right?](3 APP 81:35-36).
FORAN: Okay. Now, I want to back up just a minute because there was something I wanted to ask you about when you were out at the Rice Paddy. ¶ Did you ever see Bart with a weapon out there? TARAH: Yes. FORAN: What did you see him with? TARAH: A shotgun. FORAN: What were they doing with it? TARAH: They shot it off in the air. FORAN: When you say “they,” was it just Bart or was it the other people? TARAH: I think Jason and -- FORAN: Jason maybe too? TARAH: (No response)[Whoops! Did she say something wrong or did Foran expose a prior lie that she was unsure of?] FORAN: Had you seen Bart with that shotgun before? TARAH: Yes. FORAN: So it was his weapon, right? TARAH: Yes (3 RR 198:12-199:5).
MINDY: One morning me and my friend Jennifer [Boston][who was dating Jason then] had picked him up for school because he was walking. So [We] [Jennifer bought my mom’s old blue four door Honda Accord] picked him up and took him to school because I knew he went to school with me (3 RR 160:9-12).
HARTMANN: Once you got to school the next day, were you hearing things from other students that led you to be concerned about people finding out that you knew some things about what had happened? MINDY: Yes (3 RR 173:3-7).
FORAN: And did you guys go to school the next day? TARAH: Yes.. FORAN: Okay. Later that day, did you talk to Mindy? TARAH: Yes¦. FORAN: Did later you and Mindy talk? TARAH: Yes. FORAN: Okay. Were--did you become concerned people would know that you knew something about it? TARAH: Yeah. We knew that they knew who we were? (3 RR 196:8-11, & 15-19).
MIKE: Mindy -- I know Mindy now because she knows my friend Paul [Griffin]. I’m not sure of the other girl's name. HARTMANN: is her name Tara[h]? MIKE Yeah, Tara[h] Green (3 RR 53:7-10).
HARTMANN: Okay. Had you known Bart Gaines prior to this evening? MIKE: No, ma’am. I had met him that evening, actually, but my friends knew him? HARTMANN: But you didn’t know him? MIKE: No, ma’am. Not personally (3 RR 66:6-11).
FORAN: Now, on February 21, how long would you have known Mi[ke] approximately? ANDY: Maybe two months, about that. FORAN: Were you in school at that time? ANDY: Yes. What year were you in? ANDY: I was a junior that year. FORAN: So you are senior this year? ANDY: Yes. (3 RR 91:10-18).
WESTFALL: These folks here in this picture, you didn’t know any of these guys? ANDY: No, I didn't. WESTFALL: So you have -- after this night learned the names of these people? ANDY: Yes (3 RR 110:16-21).
HARTMANN: What school did you attend? MIKE: In the spring? From January to March I was in Crowley Alternative School[][which was a school for kids who got in trouble at the regular school]. HARTMANN: Okay. MIKE: From March to the rest of [the] year I went back to Crowley High school. [which means that he was in alternative school at the time of the shooting]. HARTMANN: Okay. And what year or grade were you in back in the spring? MIKE: I was a senior last year. HARTMANN: Where were you living back in the spring of this year? MIKE: I was living with my dad in Crowley off of Willow Street (3 RR 49:2-18).
FORAN: And do you live here in Fort Worth? ANDY: I live in Fort Worth but over by Crowley (3 RR 90:12-13).
Jason: [Mike & Andy] came and they all got out and introduced themselves and then [Bart][nice little self serving statement] asked if they knew where he could get some weed (3 APP 27:5-6).
[Mike & Andy] came and they all got out and introduced themselves and then [Bart][nice little self serving statement] asked if they knew where he could get some weed (3 APP 27:5-6).
MIKE: They had a car -- they were riding around on a dirt trial. Not really sure what they were doing (3 RR 51:21-23).
ANDY: The three guys were drinking and mudding, driving out in the field (3 RR 94:13-14).
On 2-22-02, I received a call from Arthur Williams who identified himself as [Mike]’s father. He said that he had been speaking with his son and his son had not been completely forthcoming with me. Mr. Williams advised that the shooting resulted from a drug deal gone bad (3 APP 10:46-49).
[Mindy] stated that since she thought that the only thing the police would want from her would be the names of the suspects and she believed [Jason] was going to come forward, she did not think it was necessary to go to the police. Then the detective came to her house [Saturday, February 2002]. She pretended [pretend? She lied!] She did not know anything about the shooting. Then [Bart] called [how convenient] and [Mindy]’s mother picked up the phone and overheard the conversation [again, how convenient] and realized that [Mindy] had far more knowledge of the offense than she had admitted. She then called [Charla] to tell [her] that the boys had confessed [again, how convenient; also, funny how this just morphed into only me] to [Mindy & Tarah][how noble of her! Yeah, right!](3 APP 23:19-28).
They hung out there for a little bit for about 10 minutes (3 APP 77:24).
MINDY: They got out and Bart had walked over to the car and started talking to them. And me and Tarah walked over there to see who they were, and we started talking to them and they hung out with us a little bit (3 RR 160:21-24).
[T]hey were just out there smoking a blunt. That was the only time I talked to them the whole night (3 APP 81:30-31).
FORAN: Did you talk to them? TARAH: Not really¦. [Mindy] knew one of them. But I didn't know them so I didn’t really talk to them that much (3 RR 189:14-18). FORAN: Tarah, how long did they stay, the three of them stay with you and Mindy there before they left? TARAH: Probably about 30 minutes (3 RR 190:18-22).
HARTMANN: Did that blunt get passed over to Bart[] or Jason or Daniel? MIKE: I think Jason -- I don’t think Bart did, actually [what, like because I was there and likely to rebut I didn't smoke?](3 RR 53:24-54:2).
HARTMANN: Did [Mindy & Tarah] come up and participate -- let me finish my question. ¶ Did they come up and participate in the conversation that you were having with Bart[] and his friend? MIKE: Briefly. Very briefly. It was basically--they were leaving and they were going to do their own thing, I guess [how in the world were they able to convince Mike to try and take up for them? Popularity? Friendship? Threats?](3 RR 53:13-20).
HARTMANN: Where are Mindy and Tara[h]? MIKE: They had went their own way. After I got off the phone [their (Tarah's) phone], they left and then we left right after that (3 RR 57:8-10).
WESTFALL: [T]hese people that are there that are in that photograph they know that you all are smoking a blunt? MIKE: True. A few of them did it. WESTFALL: Yeah. One or more of them came up and shared the blunt with you-all? MIKE: True (3 RR 89:1-7).
Mike was talking to the others and rolling a blunt (3 APP 63:23).
FORAN: And did you share it with anybody? ANDY: We smoked it, and whoever wanted to share it got a hit, but ¦ I don’t think they actually smoked any of it. FORAN: You don’t recall them doing it? ANDY: I don’t think they smoked any of it (3 RR 93:19-94:9).
Jason and Daniel, who were still mudding when they pulled up, then they pulled up to see who they were, and we all sort of huddled together while they smoked; when Mike and Mindy figured out they knew each other, he asked her and Tarah if they wanted to smoke, and Tarah, Mindy, Mike, and Andy smoked (See Ch.9, ¶ 69 above).
Jason, I know, didn’t really like weed, and I don’t think Daniel did either (they didn’t like how it made them feel), plus they were tripping acid and drinking; as for me, I had a job so I couldn’t afford to “piss dirty” (See ¶ 70).
HARTMANN: Did that blunt get passed over to Bart[] or Jason or Daniel? MIKE: I think Jason -- I don’t think Bart did, actually (3 RR 53:24-54:2).
FORAN: And did you share it with anybody? ANDY: We smoked it, and whoever wanted to share it got a hit, but ¦ I don’t think they actually smoked any of it. FORAN: You don’t recall them doing it? ANDY: I don’t think they smoked any of it (3 RR 93:19-94:9).
Ofcrs [on hospital patrol] made the scene at the hospital and obtained general information about the victims and that the suspect vehicle was a gold gmc pickup with 3 Hispanic male actors (3 APP 10:6-8).
[Andy] was interviewed at John Peter Smith hospital. [Andy] related that he and [Mike] were at the visiting a friend. The friend was not home and when Mike and [Andy] returned to their general vehicle, the S1, S2, and S3 pulled beside them in the suspect vehicle and approached [Mike & Andy](3 APP 7:62-4:6).
On 2-22-02, I received a call from Arthur [Art] Williams who identified himself as [Mike]’s father. He said that he had been speaking with his son and his son had not been completely forthcoming with me. Mr. Williams advised that the shooting resulted from a drug deal gone bad (3 APP 10:46-49).
Both [Mindy & Tarah] initially failed to disclose all the information they knew regarding admissions made by [Bart], and the two co-defendants, [Daniel & Jason](1 CR 70:2)(2 CR 25:2).
HARTMANN: Did y’all ever pick up the phone and call the police? MINDY: No. HARTMANN: Did you ever initially tell your parents? MINDY: No (3 RR 172:14-18).
HARTMANN: At some point does your mom find out that you know more than what you are telling? MINDY: Yes (3 RR 175:5-7).
FORAN: Now, you didn’t call anybody to report this, did you? TARAH: No (3 RR 196:12-14).
He started asking them if they had any drugs on them x or anything. He then asked if they could get him a pound.... Tarah pulled me to the side and said it was kind of weird of Bart to be asking all those questions. We dropped it (3 APP 77:20-24).
HARTMANN: Did you see whether or not Bart had a conversation with Mike and the young man that was in the car with Mike? MINDY: Yes¦. HARTMANN: What did you hear him ask him about? MINDY: If he knew where he could get a pound or some Ecstasy or anything like that ¦ HARTMANN: Did you participate in that conversation at all? MINDY: No¦. [Yeah, right!](3 RR 161:7-162:5).
WESTFALL: You have done, I guess, these sort of drug transactions before? MIKE: Well -- WESTFALL: Gotten drugs for somebody else -- MIKE: I had actually never done this particularly before. What I used to do personally, my friend and I would go in on a quarter pound and then we would run around to all our friends for about two days straight and get rid of every last piece of marijuana that we had (3 RR 89:8-16).
[Bart] asked [Mike] if he knew where he could get some marijuana. [Mike] told him he did and [Jason, Bart, & Daniel] agreed to follow [Andy] and [Mike](3 APP 18:10-12).
[Jason, Daniel, & I] made a deal with [Mike] to buy a pound of marijuana (3 APP 32:39-40).
They asked us if we knew where to buy marijuana (3 APP 65:15-16).
MIKE: I’m not quite exactly sure, but we somehow started talking and then they basically came to about -- we were smoking pot, so we obviously knew where we could find it, and they asked us if we could find a pound (3 RR 57:6-15). HARTMANN: Who brought up the idea of you trying to locate some marijuana? MIKE: I was asked about it, if I knew where to find any. HARTMANN: Who asked you about it? MIKE: It was either Bart or one of the other two. I think it was Bart. I’m pretty sure it was Bart actually [Really?](3 RR 54:15-21).
HARTMANN: So your recollection is that it was Bart was asking you where -- MIKE: Yes, ma’am, but it is not crystal clear, you know. HARTMANN: Okay. MIKE: From what I remember, I do believe it was him. HARTMANN: What was the request that was made, the question that was asked? MIKE: “Do you know where to get a pound” (3 RR 55:11-19).
They hung out and smoked some marijuana and talked. [Andy] said that [Mike] told him they were leaving to go to his friend’s house and [Jason, Bart, & Daniel] would follow (3 APP 16:64-13:5).
We got out and were standing around talking to them (3 APP 63:17). Mike said, “hey let’s go over here.” ¦ Mike said, "let’s go." He gave me directions (3 APP 63:23-24 & 30).
FORAN: Before we go any further, had Mike explained to you why you were going to go see this friend of his? ANDY: He said he was going to get him -- doing them a favor. I was thinking, okay, he’s going to get him a dime or something or a small amount of marijuana. FORAN: When you originally left the smokeout place did you know that? ANDY: I had no clue what we were doing and I learned that we were going to get him something at Walmart in the parking lot. I didn't know what was going on until up to that point that there was going to be -- that we were going to get him anything [Yeah, right!](3 RR 99:22-100:8).
[Bart] asked [Mike] if he knew where he could get some marijuana. [Mike] told him he did and [Jason, Bart, & Daniel] agreed to follow [Andy] and [Mike](3 APP 18:10-12).
[Jason, Daniel, & I] made a deal with [Mike] to buy a pound of marijuana (3 APP 32:39-40).
They asked us if we knew where to buy marijuana (3 APP 65:15:16).
MIKE: I’m not quite exactly sure, but we somehow started talking and then they basically came to about -- we were smoking pot, so we obviously knew where we could find it, and they asked us if we could find a pound (3 RR 52:12-15). HARTMANN: Who brought up the idea of you trying to locate some marijuana? MIKE: I was asked about it, if I knew where to find any. HARTMANN: Who asked you about it? MIKE: It was either Bart or one of the other two. I think it was Bart. I’m pretty sure it was Bart actually [Really?](3 RR 54:15-21).
HARTMANN: So your recollection is that it was Bart was asking you where -- MIKE: Yes, ma’am, but it is not crystal clear, you know. HARTMANN: Okay. MIKE: From what I remember, I do believe it was him. HARTMANN: What was the request that was made, the question that was asked? MIKE: “Do you know where to get a pound” (3 RR 55:11-19).
HARTMANN: You have been mentioning the name Bart. Do you see anybody in the courtroom that you recognize to be the Bart that was out at the particular location that night? MIKE: Yes, ma’am. HARTMANN: Can you describe where he’s located and something that he’s wearing? MIKE: He’s wearing a tie and coat [as were Foran, Westfall (Greg), and Minick (Cheyenne)]. He’s sitting three people down to you, to your left [Minick?!][(1) Foran was to Hartmann’s left, followed by (2) Westfall (Greg), and (3) Minick (Cheyenne); Minick (Cheyenne) was the third person, and blond headed, like Jason; Minick (Cheyenne) was the only blond headed guy sitting at the defendant’s table]. HARTMANN: Is he the third person or fourth person? MIKE: The fourth person.[counting (1) Hartmann, (2) Foran (3) Westfall (Greg), and (4) Minick (Cheyenne), Mike again identified Minick (Cheyenne)](3 RR 54:22-55:6).
Bart starts asking questions like, do they have a pound or can they get a pound. I pulled Mindy aside and told her that I thought he was planning on doing something like try and rob them or something like that (3 APP 81:32-34).
[Bart] asked [them] if they could get him a pound of marijuana [and they] ... agreed (3 APP 18:10-12).
FORAN: Did you hear them talking to Bart? TARAH: I didn't hear what they were talking about, but they were talking. FORAN: Okay. Now, did you hear Bart asking them for anything? TARAH: He asked for a pound of weed. FORAN: And you heard him ask -- did that -- did you find that unusual? TARAH: Yeah. FORAN: Why did you find it unusual? TARAH: Because I just had a feeling that -- I don’t know because he didn’t know him. FORAN: It was odd to be asking strangers? TARAH: (No response)[Uncontrollable crying]. FORAN: Is that a yes? TARAH: Yes (3 RR 189:19-190:9).
[Bart] then came over and leaned in the window of [Andy’s car] and asked [Mike] and [Andy] if they could get him a pound of marijuana. [Mike] said they could. [Mindy & Tarah] said that [Bart] doing that made them nervous because they thought he was up to something [yeah, right!]. [Mike] agreed to take [Bart] and [Jason & Daniel] to buy a pound (3 APP 22:41-48).
MIKE: I’m not quite exactly sure, but we somehow started talking and then they basically came to about -- we were smoking pot, so we obviously knew where we could find it, and they asked us if we could find a pound (3 RR 57:7-15). HARTMANN: Who brought up the idea of you trying to locate some marijuana? MIKE: I was asked about it, if I knew where to find any. HARTMANN: Who asked you about it? MIKE: It was either Bart or one of the other two. I think it was Bart. I’m pretty sure it was Bart actually [Really?](3 RR 54:15-21).
HARTMANN: So your recollection is that it was Bart was asking you where -- MIKE: Yes, ma’am, but it is not crystal clear, you know. HARTMANN: Okay. MIKE: From what I remember, I do believe it was him. HARTMANN: What was the request that was made, the question that was asked? MIKE: “Do you know where to get a pound” (3 RR 55:11-19).
[Their omission][Mindy & Tarah] said that [Bart] doing that made them nervous because they thought he was up to something (3 APP 22:46-47).
Tara[h] pulled me to the side and said it was kind of weird of Bart to be asking all those questions¦. Bart let the passenger use his cell phone (3 APP 77:22 & 24-25).
HARTMANN: And did it appear that Mike was I guess talking -- relying to his [Bart’s] question about -- MINDY: Yes. HARTMANN: Did you participate in that conversation at all? MINDY: No [Yeah, right]. HARTMANN: What did you do? MINDY: Me and Tara[h] just kind of stood back and didn't enter into the conversation at all [yeah, right!].... (3 RR 161:20-25). I thought that it was awkward of Bart to ask a random person where he could get a pound or something like that. I thought that was awkward (3 RR 162:15-17).
I [Charla] went with [Tarah] to her home and her parents showed me the photos on the digital camera. [But did she (Charla) call them there was some kind of mistake, maybe?] They were unable to get the printer to work but did hand over the Kodak picture card with the photos on it. ¶ [While Charla no doubt sat talking to Tarah's mom (Sherry) about why her phone was used to call Mike's drug dealers, Tarah was sent on some useless mission so that Sherry and Charla could talk]. W7 ([Tarah]) stated she drove past the S3 (Daniel)'s house to get the address. ... (3 APP 24:7-13).
[Their omission] I pulled Mindy aside and told her that I thought he was planning on doing something like try and rob them or something like that [surely she didn't think a robbery was at hand was because she was helping them (Jason) institute it by the proffer of her phone for Mike to help set it up, was it? She's otherwise very astute of the matter not to proffer her phone up for use] (3 APP 81:32-34).
FORAN: Did you talk to them? TARAH: Not really¦. Mindy knew one of them. But I don't know them so I didn’t really talk to them that much (3 RR 189:14-18). And you heard him ask -- did that -- did you find that unusual? TARAH: Yeah. FORAN: Why did you find it unusual TARAH: Because I just had a feeling that -- I don’t know because he didn’t know him. FORAN: It was odd to be asking strangers? TARAH: (no response)[uncontrollable crying]. FORAN: Is that a yes? TARAH: Yes (3 RR 190:4-190:9). Interesting. Something is evidently going on here and it wasn't about "strangers[.] "
I would have to use his phone and page somebody. I got his phone and paged him. I never received a call back. I also called a friend named Paul [Griffin][APP 3]. About 8 o’clock he [Paul] said, let’s go ahead and go over there (3 APP 65:16-19).
MIKE: I used Bart’s phone and tried paging the guy that I usually get weed from, and he didn’t answer. So I called my friend Paul [Griffin] and his friend called him and then he had talked to him and he told me what was going on, that we were going to sto[p] by there and get some weed off him basically. And he said basically just go on down there (3 RR 56:2-8).
At school the next day, I heard Paul Griffin talking to Rider Bagley telling him that his two friends (Mike & Andy) got shot and there was a girl (Mindy) who could identify the guys in the truck because she had picked him up for school one day. He said they were going to take a yearbook to the hospital and he was going to point her out. He said that he had the guy's cell phone number because they had called Paul to get the pound¦. I told him that he should call information and give them the cell phone number and maybe they could give him the name [Goofy girl! Forgot Mike used Tarah's, or Sherry's, cellphone to call Paul](3 APP 78:16-21).
I went with [Tarah] to her home and her parents showed me the photos on the digital camera. [But did she (Charla) call them there was some kind of mistake, maybe?] They were unable to get the printer to work but did hand over the Kodak picture card with the photos on it. [Tarah] stated she drove past [Daniel]’s house to get the address. On the mailbox. It said “Aranda Wood.” She believed that might be the street name (3 APP 24:7-13). As I was leaving [Tarah]’s house she [Sherry?]
told me that the boys had said that they were going to “hit a lick” the afternoon prior to the shooting. “Hit a lick” is slang for robbery or burglary. She did not say who made that comment (3 APP 32:34-37); it couldn't have been me because I said she called me talking about it had been a long time since she saw me or whatever, unless I'm lying about that, which I am not.
I would have to use his phone and page somebody. I got his phone and paged him. I never received a call back. I also called a friend named Paul [Griffin][3 APP 55]. About 8 o’clock he [Paul] said, let’s go ahead and go over there (3 APP 65:16-19).
MIKE: I used Bart’s phone and tried paging the guy that I usually get weed from, and he didn’t answer. So I called my friend Paul [Griffin] and his friend called him and then he had talked to him and he told me what was going on, that we were going to sto[p] by there and get some weed off him basically. And he said basically just go on down there (3 RR 56:2-8).
At school the next day, I heard Paul Griffin talking to Rider Bagley telling him that his two friends (Mike & Andy) got shot and there was a girl (Mindy) who could identify the guys in the truck because she had picked him up for school one day. He said they were going to take a yearbook to the hospital and he was going to point her out. He said that he had the guy's cell phone number because they had called Paul to get the pound¦. I told him that he should call information and give them the cell phone number and maybe they could give him the name [Goofy girl didn’t even know it’s Tarah’s or Sherry’s cell Mike used]. I ¦ called Tara[h] and told her everything that Paul had said¦. He (Jason) already knew that I knew. I don’t know how (3 APP 78:16-21, 22-23, & 33-34).
I went with [Tarah] to her home and her parents showed me the photos on the digital camera. [But did she (Charla) call them there was some kind of mistake, maybe?] They were unable to get the printer to work but did hand over the Kodak picture card with the photos on it¦. [Tarah] stated she drove past [Daniel]’s house to get the address. On the mailbox. It said “Aranda Wood.” She believed that might be the street name (3 APP 24:7-13). As I was leaving [Tarah]’s house she [Sherry?] told me that the boys had said that they were going to “hit a lick” the afternoon prior to the shooting. “Hit a lick” is slang for robbery or burglary. She did not say who made that comment (3 APP 32:34-37); it couldn't have been me because I said she called me talking about it had been a long time since she saw me or whatever, unless I'm lying about that, which I am not.
I would have to use his phone and page somebody. I got his phone and paged him. I never received a call back. I also called a friend named Paul [Griffin][3 APP 55]. About 8 o’clock he [Paul] said, let’s go ahead and go over there (3 APP 65:16-19).
MIKE: I used Bart’s phone and tried paging the guy that I usually get weed from, and he didn’t answer. So I called my friend Paul [Griffin] and his friend called him and then he had talked to him and he told me what was going on, that we were going to sto[p] by there and get some weed off him basically. And he said basically just go on down there (3 RR 56:2-8).
I called Bart on Mindy’s mom’s cell phone to see where they were at. Bart told me he was at Walmart. I asked him what he was getting and he told me he was getting bullets ¦ “just in case something happens and I need it (emphasis added)(3 APP 82:4-8).
And I remember Mike saying that he would have to call his dealer and find out if he had that much (See ¶ 72. Although I do not remember whether Mike borrowed my cell phone or Tarah’s (Tarah borrowed her mom’s, Sherry’s, often) to call Paul (Griffin)(3 APP 55) and his dealer, I know I never received a call in reference to what happened next, either from them or the cops. My guess is he used Tarah’s, or Tarah offered him her cell phone to call his dealer and Paul).
I don’t know or recall Jerri ever having one (a cell phone), but if she did she most certainly never let Mindy borrow it. At least that I ever knew. I never saw her with a cell phone.
HARTMANN: When was -- the photograph ... taken? MINDY: That night with Mike and Andy¦. HARTMANN: Do you know if it was taken before or after Mike and Andy showed up? MINDY: After. HARTMANN: So they [Mike & Andy] were out there [Had to have been, remember? Mindy didn't stop to think Daniel was wearing Andy’s jacket; but that was okay. They just said Kodi was the one who took the picture]? MINDY: Yes. HARTMANN: Do you know who took the picture? MINDY: No. It might have been [K]od[i] because she's not in it [No! Because Mike took it](3 RR 175:21-176:10).
[Tarah & Mindy] also stated that there had been pictures of the group taken earlier that day with [Bart] wearing the same shirt as the one depicted in the video. I did obtain the video card from the camera and have it transferred onto a CD and made the included photos (3 APP 119:36-39).
FORAN: When [Mike & Andy] arrived, who was still there? TARAH: The same one that was there--those were the same people that were all there [what a horrible liar!]. FORAN: Were you taking some pictures while you were out there? TARAH: Yes (3 RR 188:21-189:1).
HARTMANN: Was this picture actually taken when you were out there? MIKE: Yes, ma’am. HARTMANN: Did you take the picture or did somebody else? MIKE: I don’t remember taking the picture [Sure you do Mike. Who’s manipulating you into saying you didn’t, Charla?]. HARTMANN: Were there other people out there [she (Hartmann) has to know he’s lying, or else why ask?]? MIKE: Yes, ma’am (3 RR 81:5-8).
On 2-26-02, I met with ADA Foran at his office. He reviewed the depositions I had obtained and advised me on what would be needed to further this case [Like the Walmart conversation with Tarah and my intent therewith] (3 APP 24:34-36).
I met with ADA Foran who advised me to have Mindy and [Tarah] view the video and see if they could identify [Bart] by the clothing he wore that day both before and after the shooting. I showed the video to Mindy and [Tarah] and Kodi¦. They also stated that there had been pictures of the group taken earlier that day [Darn! Now how do they weave that into the limited interaction story? I know! Kodi was there.] (3 APP 119:32-37).
I then met with [Mindy] and [Tarah] and Kodi Morris [6 RR DX 7] who had all been with [Bart, Jason, & Daniel] less than an hour prior to the shooting. I met with them at [Mindy]’s home. All viewed the tape and all agreed that the subject entering the Walmart wearing a red white and black shirt with a hood was undoubtedly [Bart]. They said he was wearing prior to and after the shootings. He walked the same way and it was just him. This was also confirmed by [Mindy]’s mother [Jerri] who was on the scene¦. [Mindy] advised that prior to the shooting that [Tarah] had taken digital photographs of the group. ¶ I went with [Tarah] to her home and her parents showed me the photos on the digital camera. They were unable to get the printer to work but did hand over the Kodak picture card with the photos on it (3 APP 23:58-20:10).
Michael had the marijuana with him. We went to a place kids hang out on a dirt road off of Crowley Rd. When we got there, there were two girls in a red car and 3 guys in a newer silverish gray pickup truck with a toolbox in the bed of the truck. (3 APP 63:12-15).
On Thursday, 2-21-02, about 7:45 Andy and I drove out to the spot in the vicinity of Crowley Rd. and the bus terminal. We noticed two cars and someone came up to the window and initiated a conversation. Andy and I stepped out and talked to these people (3 APP 65:12-15).
[Mindy] advised that prior to the shooting that [Tarah] had taken digital photographs of the group (3 APP 24:5-6).
[Mindy] advised that prior to the shooting that [Tarah] had taken digital photographs of the group (3 APP 24:5-6).
MIKE: I know Mindy now because she knows my friend Paul [Griffin](3 RR 53:7-8). HARTMANN: Had you known Bart ¦ prior to this evening? MIKE: No, ma’am[] but my friends knew him (3 RR 66:6-9).
HARTMANN: Was this picture actually taken when you were out there? MIKE: Yes, ma’am. HARTMANN: Did you take the picture or did something else? MIKE: I don’t remember taking the picture [Sure you do Mike. Who’s manipulating you into saying you didn’t, Charla?]. HARTMANN: Were there other people out there [she (Hartmann) has to know he’s lying, or else why ask?]? MIKE: Yes, ma’am (3 RR 81:5-8).
FORAN: Now, were some pictures taken out there that evening? ANDY: Yes. FORAN: Do you recall who took the pictures? ANDY: I don’t know who was taking the pictures [coached to a “T” (2 RR 57:21)]¦. FORAN: [...] This individual here on the left is wearing a jacket¦. Is that your jacket? ANDY: Yes. I let him borrow the jacket (3 RR 96:2-97:15).
[Jason] then stated that he and some friends were riding around and about 4 p.m. on 2-21-02 met up with [Bart]. They followed [Daniel] home so he could drop off his vehicle. They got into [Bart]’s truck and went to the “rice paddy” where they met with the three girls (3 APP 26:61-64).
After that Bart said that they were going to follow them and asked us if we wanted to go. I didn’t want to go and we told them no. They left about 8:30. We waited for our other friends to come back because they went to Sonic (3 APP 77:25-29). We got to Tara[h]’s about 9:21 or 9:30 because we were supposed to be there at 9 and we were late (3 APP 77:36-37).
HARTMANN: Did they [Jason, Bart, Daniel, Mike, & Andy] eventually decide to leave the area? MINDY: Yes. HARTMANN: Were you asked if you wanted to go? MINDY: Yes. HARTMANN: Who asked you? MINDY: I’m not really sure which one, Jason, Bart, or Daniel¦. Did you and Tara[h] want to go with them? MINDY: No. HARTMANN: You just decided to remind here? MINDY: Yes (3 RR 162:18-163:5).
FORAN: Tara[h], how long did they stay, the three of them stay with you and Mindy there before they left? TARAH: Who, the -- FORAN: The three of the, Daniel, Jason and Bart? TARAH: Probably about 30 minutes. FORAN: When they left, did anyone else leave? TARAH: (No response)(3 RR 190:18-24).
[Bart][i.e., Jason] asked [Mindy & Tarah] if they wanted to go [i.e., for a ride]. They feared what he was going to do and said no [again, the curfew](3 APP 22:46-47).
Me and Mindy and Jason and [K]od[i] went and sat in my car and listened to the radio. Bart comes up to us and tells us to follow him to go do something. He told Jason to come ride with him. Jason went with him. He asked us to go with them and Mindy said she didn’t have a good feeling and I didn’t want to go with them [curfew; because they had to be at Tarah’s at 9 p.m. [Mindy told Charla: They followed the guys to some apartments on James Ave,. by the Lucky Store (3 APP 79:2-2)](3 APP 81:38-40).
FORAN: Tara[h], how long did they stay, the three of them stay with you and Mindy there before they left? TARAH: Who, the -- FORAN: The three of the, Daniel, Jason and Bart? TARAH: Probably about 30 minutes. FORAN: When they left, did anyone else leave? TARAH: (No response)(3 RR 190:18-24).
[Bart] asked [Mindy & Tarah] if they wanted to go. They feared what he was going to do and said no [again, the curfew](3 APP 22:48-49).
Jason with Charla: [Jason] stated ¦ [Bart] pulled up beside [Mike] and told them they were going to Walmart to get beer. [Bart] went inside and came out with nothing in his hands. Mike asked him where the beer was and he [Bart] said they didn’t have it [Oh! But he did; Jason handed me his beer to make it look like I did buy beer, remember?](3 APP 27:9-12).
Charla with Hamza: he was unable to identify any one of the photo spreads of [Jason][the kid whom he told to move my truck](3 APP 29:59-60).
Charla with Catalano: [Bart] along with his friend Jason ¦ and Daniel, began to follow [Mike] who was in the car with [Andy] then passed him and asked [Mike] to follow him to Walmart on Sycamore School Rd. to buy beer¦. [Bart] entered Walmart and did purchase two boxes of 12 gauge shotgun shells. One box was slugs and one was 00 [which Jason specifically requested]¦. That after purchasing the shotgun shells, [Bart] returned to his vehicle and met with [Mike] and [Andy] and said he was ready (3 APP 72:2-4).
Charla with Williamson: That once back on the road [Bart], driving [Jason] and Daniel, did flash his headlights at [Andy]’s vehicle and then pull beside them and tell [Mike] and [Andy] that they wanted to go to Walmart to buy beer and follow them¦. [Jason], [Bart] and Daniel in [Bart’s] pickup did lead the way to Walmart where [Bart] exited the vehicle and went into Walmart and purchased shotgun shells while [Jason] and Daniel drove around the parking lot [Mike] and [Andy] parked waiting for them¦. That [Bart] did return to his truck with the shotgun shells and did show them to [Jason] and Daniel and tell them he bought them in case [Mike] and [Andy] were “strapped.” [trying to go easy on ole Jason, isn’t she?]¦ That [Bart], [Jason] and Daniel then met up with [Mike] and [Andy](3 APP 95:4-7).
Charla with Carr: The truck began following [Mike] and then pulled up beside them and told them the needed to go to Walmart for beer¦. [Mike] and [Andy] waited in the back of the parking lot while [Bart] later identified as the shooter, entered the store¦. [Bart] returned to this truck and did follow [Mike] and [Andy](3 APP 101:4.C-E).
They were going to follow him then passed him and said they were going to buy beer at Walmart. They followed the suspects [Jason, Bart, & Daniel] to Walmart at Mccart and Sycamore school. They all pulled up directly in front of the south doors of Walmart. A security guard pulled up and told them they could not park there. [Bart] had already entered the Walmart so one of the other suspects [Jason] moved his vehicle and drove around the parking lot. [Mike] said he pulled into a parking space and waited for [Bart] to come out. [Bart] came out and [Mike] led them to the offense location (3 APP 10:60-11:7).
[Jason, Bart, & Daniel] flashed their headlights and then pulled up and told [Mike] they wanted to go to Walmart to get beer first [Jason, Bart, & Jason] pulled ahead and [Andy] and [Mike] followed them to Walmart where they all parked in the pedestrian walk. [Bart] got out and went inside and the security guard came up and told them to move their vehicles. [Mike] and [Andy] parked in the back of the lot and waited until [Bart] got into his truck that had been driving around the lot. [Jason, Bart, & Daniel] then pulled up and said they were ready to go (3 APP 18:12-20).
[Bart] then changed the plan and made an unscheduled stop at Walmart to purchase shotgun shells, while [Mike] and [Andy] waited in the parking lot. According to what was told to [Mindy] [Jason] asked [Bart] why he bought the shells. [Bart] said in case [Mike & Andy] were “strapped” a street term for carrying a weapon [how insightful of her (Charla)](3 APP 32:40-44). [Jason, Daniel, & Bart] agreed to rob [Mike & Andy]. [Jason, Daniel, & Bart] then went to Walmart and [Bart] purchased shotgun shells while [Mike & Andy] waited outside in the parking lot (3 APP 42:24-26).
As he was leading them to the location they flashed their lights at him and pulled up and told him to follow them to Walmart to get beer. They did follow them and wait in the parking lot while Bart ¦ went inside. When he came out, they went to the dope house but they were out (3 APP 118:6-9).
We drove on Crowley Rd. and the guys in the gold truck flashed his bright lights and passed us. He got in the left lane and turned onto Sycamore and we went to Walmart At Walmart he told us he wanted to go buy some beer and he would be right back. We parked in the front of Walmart around 8:30 and parked in front of the doors in the walkway. We were there 3-4 minutes when a security guard ¦ pulled up. Then he asked us to go ahead and park and circle around every 3 minutes to pick up this guy. Andy and I went and parked and the people in the truck [Jason & Daniel] said, “we are going to circle around until we pick him up and then we will meet you back here (emphasis added)(3 APP 65:19-28).
MIKE: I think he flashed his lights actually. Yeah, I remember him flashing his lights because Andy and I were smoking on that blunt and I remember putting it out and seeing a flash from the rear-view mirror. HARTMANN: Did he pull in front of you? MIKE: Yes, ma’am. HARTMANN: Did he lean out of the window or did you just assume that he wanted you to follow him MIKE: We assumed (3 RR 58:6-14). HARTMANN: When you get to the Walmart parking lot, what takes place? MIKE: Bart says he will go inside to buy beer and say hi to one of his friends (3 RR 59:8-11). You said Bart told you he was going to get beer. How did he tell you that? Was he out of his truck or was he still in his truck? MIKE: Yeah. Andy rolled down his window. We were asking what we were doing. We just assumed that they wanted us to follow them. HARTMANN: You were like, hey, what’s going on? And he tells you, I’m going to get some beer? MIKE: He didn’t tell me. He told Andy. I didn't talk to him (3 RR 60:3-11).
They started and the suspects [Jason, Bart, & Daniel] flashed their lights and pulled up and told [Mike] and [Andy] that they were going to go to Walmart to get some beer, [Bart, Jason, & Daniel] pulled in front of [Andy] and [Mike] and went to the Walmart on the corner of Mccart and Sycamore School Rd. They all pulled up in front of the south doors in the pedestrian walkway. A security guard pulled up and told them they could not park there. He told them they could drive around until [Bart] came out of the store. [Andy] and [Mike] parked in the back of the parking lot while one of the other suspects [Jason, & Daniel] drove the confiscated vehicle [Bart's truck] around until [Bart] came out. [Mike] then directed [Andy] to drive to the offense location (3 APP 17:5-15).
The guy in the truck pulled in front of us and told us to follow them to Walmart They parked in front of the building and we did too. The driver of the truck went in the door next to the garden area to get the beer. A security guard came by and told us ¦ we needed to park somewhere else. We parked in the parking lot and the truck drove around. We were there about 15-20 minutes to a ½ hour. The truck then drove up next to my car and Mike said, “let’s go.” (3 APP 63:24-30).
FORAN: Did he lean out of the window or did you just assume that he wanted you to follow him? ANDY: They pulled up next to us and said follow us to Walmart I want to get some more beer. FORAN: Who said that? ANDY: The guys that were driving -- Bart [Remember your coaching Andy; you got to be specific (say Bart), right?] (3 RR 95:21-22).
Andy and I went and parked and the people in the truck [Jason & Daniel] said, “we are going to circle around until we pick him up and then we will meet you back here (emphasis added)(3 APP 65:26-28).
A few minutes later [Tarah] called [Bart] and asked what he was doing. He told her he was at Walmart buying bullets. She asked him why and he said because, “they might be strapped.” (3 APP 22:50-53).
According to what was told to [Mindy] [Jason] asked [Bart] why he bought the shells. [Bart] said in case [Mike & Andy] were “strapped” a street term for carrying a weapon [how does she know all this stuff, right? She’s awesome! She’s a valuable asset to the dep’t, right?](3 APP 32:42-44).
We left and Tara[h] called Bart’s cellphone to see where he was. He said he was at Walmart ¦ get[ing] bullets ¦ “just in case they [we]re strapped.” (3 APP 77:29-31).
HARTMANN: Once you left, did you or Tara[h] decide to try and get in touch with Bart over the cell phone? MINDY: Yes (3 RR 164:22-24). Is that with a cell phone while y’all were driving? MINDY: Yes (3 RR 165:16-18).
[Tarah] called him [Bart] and asked him what he was doing and he told her he was at Walmart buying bullets in case the other guys were “strapped.” (3 APP 118:35-37).
I called Bart on Mindy’s mom’s cell phone to see where they were at. Bart told me he was at Walmart I asked him what he was getting and he told me he was getting bullets ¦ “just in case something happens and I need it (emphasis added)(3 APP 82:4-8).
FORAN: What did Bart tell you when you called him? TARAH: He said he was at Walmart ¦ getting shotgun shells (3 RR 191:11-14). FORAN: Did you ask him why he was getting the shells? TARAH: Yes. FORAN: What did he tell you? TARAH: He said in case anything happens these are his protection (3 RR 191:21-25).
It shows [Bart] entering the Walmart store at 2025
hrs. wearing a red, white and black shirt with a hood. He goes to sporting good and tells the clerk what he wants. The clerk cannot find it and [Bart] leans across the counter to point. Finally [Bart] goes behind the counter to show the clerk what he wants. He purchased a box of 12 gauge 00 and a box of 12 gauge slugs for a total of $7.12. The electronic register shows a time of 20:36 [8:36 pm] on the sale. He then exits the store (3 APP 23:42-49). See also (6 RR SX 34)(6 RR SX 35).
FORAN: Did you try calling Bart again? TARAH: Well -- FORAN: Or did he call you? TARAH: I only talked to him once while they were gone. FORAN: While they were gone, you only talked to him once? TARAH: Uh-huh. FORAN: Well, did you see them again that evening? TARAH: Yes. FORAN: Where did you see them? TARAH: Whenever we left the Rice Paddy we were taking [K]od[i] home and he was driving, behind us -- never mind. FORAN: Did you take [K]od[i] back home? TARAH: Uh-huh. FORAN: Is that a yes? TARAH: Yes. FORAN: When you got to [K]od[i]’s house, did you see anybody else over there? TARAH: Me and Bart pull up with Jason and Daniel (3 RR 192:7-25).
I met with ADA Foran who advised me to have Mindy and [Tarah] view the video and see if they could identify [Bart].... They all provided written depositions[where the birth of the idea for the call began, with an eye to proving the mens rea elements of the penal violation](
3 APP 119:32-35).
FORAN: Did you try calling Bart again? TARAH: Well -- FORAN: Or did he call you? TARAH: I only talked to him once while they were gone. FORAN: While they were gone, you only talked to him once? TARAH: Uh-huh. FORAN: Well, did you see them again that evening? TARAH: Yes. FORAN: Where did you see them? TARAH: Whenever we left the Rice Paddy we were taking [K]od[i] home and he was driving, behind us -- never mind. FORAN: Did you take [K]od[i] back home? TARAH: Uh-huh. FORAN: Is that a yes? TARAH: Yes. FORAN: When you got to [K]od[i]’s house, did you see anybody else over there? TARAH: Me and Bart pull up with Jason and Daniel (3 RR 192:7-25).
I called Bart on Mindy’s mom’s cell phone to see where they were at. Bart told me he was at Walmart I asked him what he was getting and he told me he was getting bullets ¦ “just in case something happens and I need it (emphasis added)(3 APP 82:4-8).
[Mike & Andy] parked in the back of the lot and waited¦. [Bart] got into his truck that had been driving around the lot. [Jason, Bart, & Daniel] then pulled up and said they were ready to go buy marijuana (emphasis added)(3 APP 18:17-20).
And I went and parked and the people in the truck [Jason & Daniel] said, “we are going to circle around until we pick him up and then we will meet you back here (emphasis added)(3 APP 65:26-28).
MIKE: So Andy and I went and parked and then [Jason & Daniel] just kept on circling around looking for Bart¦. HARTMANN: When Bart comes back out, could you see anything in his hands at that point? MIKE: No, ma’am. HARTMANN: Was it because he didn't have anything or because there was something between you and him that obstructed your view? MIKE: He didn’t have any beer. It’s pretty hard to miss beer in your hand out of the store (emphasis added)(3 RR 59:21-60:23). Andy with Charla: [Andy] and [Mike] parked in the back of the parking lot while one of the other suspects [Jason] drove [Bart’s truck] around until [Bart] came out (3 APP 17:12-14).
One of the other suspects [Jason] moved [Bart’s truck] and drove around the parking lot. [Mike] said he pulled into a parking space and waited for [Bart] to come out. [Bart] came out and [Mike] led them to the offense location (3 APP 11:4-7).
We parked in the parking lot and the truck drove around¦. The truck then drove up next to my car and Mike said, “let’s go.” (3 APP 63:28-30).
ANDY: I moved my car back to the end of the parking lot and the silver truck pulled up a few minutes later¦. FORAN: Did you see the drive come back out? ANDY: No (3 RR 98:2-9).
FORAN: The person that you know as the driver you referred to him as Bart earlier, do you see that person in the courtroom today? ANDY: I don’t have my glasses on. I can’t really see very well. FORAN: You didn't bring your classes with you? ANDY: I forgot them. FORAN: Okay. Well, I tell you what. May I have the witness step down? GILL: You may. FORAN: How bad is your eyesight? ANDY: I can see people, but I can’t tell details on the face. FORAN: At this distance can you? ANDY: I can see -- Foran: Can you see everyone at these two tables now? ANDY: Yes. FORAN: Do you recognize anybody at these two tables from that evening? ANDY: I think that’s Bart. You are pointing -- ANDY: Which person? FORAN: Next to the officer. ANDY: The guy next to the officer? FORAN: Okay. Why don’t you have a seat (3 RR 98:10-99:10).
Mindy with Charla: [Jason] said that they went to Walmart and Bart got bullets and Jason asked him why. He said, “just in case they were strapped. (3 APP 79:1-2).
Charla with Winfred Morney: another video shows [Andy’s car] drive to the end of the Walmart parking lot and [Bart’s truck] driving around. Around the time that [Bart] exits the store [Bart]’s vehicle is seen heading across the parking lot to where [Andy’s] vehicle [is](3 APP 23:49-54).
I went to Walmart and viewed the surveillance videos (3 APP 23:43).
Walmart loss prevention Winfred Morgan did dub the multiplex store videos onto a regular video so that it could be viewed on a regular VCR (3 APP 23:55-57).
He said he had seen them at the Walmart at McCart and Sycamore School Road (3 APP 10:20-21).
[W]e left and got on Sycamore and took Sycamore to Crowley Rd. Crowley turned into James and we went to the apartments and the new Lucky Stop (3 APP 65:28-30).
[B]asically we just go to the apartments and then I -- HARTMANN: [...] Did Andy get back in the lead again. MIKE: Yes, ma’am. HARTMANN: You go back in the direction that you had come? MIKE: No. We went back towards where we were going. Basically just made -- HARTMANN: Did you trace your way back -- Sycamore School Road back to Crowley Road? MIKE: Yes ma’am. HARTMANN: And does Crowley Road eventually intersect with Interstate 20? MIKE: Yes, ma’am, at the bridge. HARTMANN: Interstate 20 goes over Crowley? MIKE: Then it turns into James¦. (3 RR 61:3-20).
Mindy told Charla: [T]hey followed the guys to some apartments on James Ave., by the Lucky Store (3 APP 79:2-3).
Jason told Charla: [Jason, Bart, & Daniel] then followed [Mike] and [Andy] to a location and [Mike] got out and went to an apartment (3 APP 27:12).
Charla told Magistrate Catalano: [Bart] did follow [Mike & Andy] to ¦ where [Mike] went to a drug house (3 APP 72:5).
Charla told Magistrate Williamson: [Bart, Jason] and Daniel then met up with [Mike & Andy] and followed them to ¦ where [Mike] went to a nearby drug house (3 APP 95:7).
[Bart] returned to his truck and did follow [Mike & Andy] ¦. (3 APP 101:4.E).
[Mike] then directed [Andy] to drive to the offense location [Andy] parked the car and [Jason, Bart, & Daniel] parked one space over (3 APP 17:14-16).
[Mike] gave me directions and we went through Edgecliff Village and to Southcrest (3 APP 63:30-31).
[Bart] came out and [Mike] led them to the offense location (3 APP 11:6-7).
After pulling up beside Mike and Andy in the back of the parking lot and telling them we were ready to go, we hung a right on McCart and followed them to I-20 and exited on James Avenue (Crowley Road turned into James at 20); I remember as we did looking up at the overpass signs and thinking to myself how bright and animated everything looked (the swig or two I took off Tarah’s and Mindy’s Smirnoff in the & for the picture was having a weird effect on me), like I was hallucinating (See Ch. 9, ¶ 78).
[B]asically we just go to the apartments and then I -- HARTMANN: [...] Did Andy get back in the lead again. MIKE: Yes, ma’am. HARTMANN: You go back in the direction that you had come? MIKE: No. We went back towards where we were going. Basically just made -- HARTMANN: Did you trace your way back -- Sycamore School Road back to Crowley Road? MIKE: Yes ma’am. HARTMANN: And does Crowley Road eventually intersect with Interstate 20? MIKE: Yes, ma’am, at the bridge. HARTMANN: Interstate 20 goes over Crowley? MIKE: Then it turns into James¦. (3 RR 61:3-20).
The guys got out and went inside and came back and said they didn’t have a pound, all they had was 2 ounces so Bart told them to go back and get that. They came back out and said, “all he has is one and he doesn't really want to sell it (3 APP 79:3-6).
[Andy] parked the car and [Jason, Bart, & Daniel] parked one space over. [Mike] got out and went to one of the apartments .While [Andy] and [Jason, Bart, & Daniel] waited. [Mike] returned and walked up to the driver’s door of [Bart’s truck]. [Andy] stated he saw [Bart] grab [Mike] by his shirt (3 APP 17:15-18).
I parked the car in the parking lot and the truck pulled up to a parking spot away. Mike got out and went to one of the apartments. I didn't see which one. Mike walked off and was gone for about 20 minutes. He came back and walked over to the truck and was talking to the guys. I got out of my car and walked around to the driver’s side of the truck (3 APP 63:34).
[1] We parked in the parking area and I went to the truck. [2] They asked me how much I could get. [3] They wanted a pound. I went to the house and the guy said he only had a quarter pound. I went back and told [4] the guys in the truck. [5] The driver said, “you better not be with the cops or anything. [6] He pulled my shirt up and turned me around and patted my butt to see if I had a weapon. [7] The passenger asked if they could get a few ounces (3 APP 65:30-35).
MIKE: I go back to Bart’s truck. I went back and forth to Bart’s truck talking about prices¦. I remember [1] he kept on asking me ¦ to see it. All right. Let me see this and I will give you the money. I said, I don’t have it. I have to get your money to go get it. HARTMANN: [2] He wants to see the marijuana first? MIKE: Yes, ma’am. That’s when I say that something was a little off. After [3] he said he wanted to see it a few times, [4] he just out of nowhere, it’s
like ”yeah, you weren’t with the cops or anything, blah, blah, blah, and he picked up my shirt and like felt down to about my waist area basically to see if [5] he could find a weapon on me. HARTMANN: Any weapons? MIKE: Yes, ma’am. HARTMANN: Okay. MIKE. But [6] he said that [7] he would -- something about a wire for the police or something, and I was 17 at the time¦. How many trips did you end up making back and forth before [8] he starters asking you to -- you know, pulling up your shirt and wondering if you were a police officer? MIKE: Three (3 RR 64:6-65:3 + 18-21).
WESTFALL: Have you ever had anybody think that you were an undercover cop? MIKE: No, sir, not that I’m aware of (3 RR 89:17-19).
Mike with Charla: he told [1] them he would go see about the drugs. He went to the house he had purchased drugs from before. [2] they told him they did not have any drugs. He returned to the parking lot where [3] [Jason, Bart, & Daniel] and [Andy] waited. [4] [Jason, Bart, & Daniel] were still in [5] their vehicle which was parked next to [Andy’s car], [Mike] told [6] them that there were no drugs (3 APP 11:7-12).
Mike with Charla: he went to [Jason, Bart, & Daniel] and asked them how much they wanted. They told him a pound. He then went to the dope house and was told that they did not have that much available[.] They only had a quarter pound. He returned to [Jason, Bart, & Daniel] vehicle and walked up to the driver’s door where [Bart] was sitting. He told them that the dope house did not have a pound. One of the other suspects was telling him to go ahead and get a few ounces. [Bart] started demanding to see the marijuana [Mike] told him he needed to see the money first (3 APP 18:23-31).
Mike with Charla: [1] [T]hey went to the dope house but they were out. When [Mike] told [2] [Bart] that, [3] [Bart] accused [Mike] of being a cop and grabbed [Mike] by the shirt and frisked him for weapons (3 APP 118:8-11).
Mixture:
Charla with Catalano: [Mike] went to a drug house near there to try and purchase the pound of marijuana requested by [1] [Bart], & [Mike] returned to [2] [Bart] and his friends who were still in [3] his truck and told [4] [Bart] that the dealer did not have a pound of marijuana to sell but only a few ounces. [5] [Bart] demanded to see the marijuana and [Mike] told [6] him he needed to see the money¦. [7] [Bart] grabbed [Mike] by the shirt and jerked him around lifting his shirt accusing him of being a cop. [Mike] assured [8] him that he was not a cop and did not have a weapon (3 APP 72:5-7).
Charla with Williamson: [Mike] went to a nearby drug house to try and purchase the pound of marijuana requested by [1] [Bart].... [Mike] returned to [2] [Bart], [Jason], and Daniel and told [3] them that the dealer did not have a pound to sell, only a few ounces and [4] [Bart] demanded to see the marijuana and [Mike] told [5] him he needed to see the money¦. [6] [Bart] then grabbed [Mike] by the shirt and jerked him around lifting his shirt and frisking him and accusing him of being a cop. [Mike] assured [7] him that he was not a cop and did not have a weapon (3 APP 95:7-97:9).
Charla with Carr: [Mike] was unable to get the dealer to sell to him and he walked back to where the [1] three subjects [Jason, Bart, & Daniel] in the truck and his friend [Andy] were waiting¦. [Mike] advised [2][Bart] that he could not buy any drugs. [3] [Bart] grabbed him and accused him of being a cop (3 APP 101:4.F-G).
Jason told Charla: [1] [Bart] told him that he wished to buy a ¼
lb. of weed. [Mike] went back to the apt while [Andy] [stayed] in the parking lot. [Mike] returned and said there was no dope to be had. He offered to take [2] [Jason, Bart, & Daniel] to the northside where he could get [3] them some dope (3 APP 27:14-18).
HARTMANN: You have been mentioning the name Bart. Do you see anybody in the courtroom that you recognize to be the Bart that was out at the particular location that night? MIKE: Yes, ma’am. HARTMANN: Can you describe where he’s located and something that he’s wearing? MIKE: He’s wearing a tie and coat [as were Foran, Westfall (Greg), and Minick (Cheyenne)]. He’s sitting three people down to you, to your left [Minick?!][(1) Foran was to Hartmann’s left, followed by (2) Westfall (Greg), and (3) Minick (Cheyenne); Minick (Cheyenne) was the third person, and blond headed, like Jason; Minick (Cheyenne) was the only blond headed guy sitting at the defendant’s table]. HARTMANN: Is he the third person or fourth person? MIKE: The fourth person [counting (1) Hartmann, (2) Foran (3) Westfall (Greg), and (4) Minick (Cheyenne), Mike again identified Minick (Cheyenne)](3 RR 54:22-55:6).
[Bart] then struck [Mike] in the head with the gun twice. [Jason] stated that [Daniel] did punch [Andy] knocking him to the ground (3 APP 27:20-22).
HARTMANN: Who are the people in State’s 25? MINDY: Bart, Tara, Jason, Daniel and me. HARTMANN: Is that you down there on the left? MINDY: Yes. HARTMANN: You had a different hair color [Yeah! For trial it was Gothic black] then? MINDY: Yes (3 RR 176:11-16)(6 RR SX 25).
Right then he jumped out and as he got out he reached his left hand under the seat and pulled out a shotgun (3 APP 65:37-38).
HARTMANN: When he got out of his truck, he pulled it from behind him, I believe. HARTMANN: Do you think that might have accounted for the way he was sitting in the truck? MIKE: Yes, ma’am. That’s what I believe personally. HARTMANN: Because he had that shotgun wedged in the seat with him. MIKE: Yes, ma’am (3 RR 67:9-16).
WESTFALL: Now, this shotgun that got pulled out of the truck ¦ are you absolutely certain that it was sitting on the seat of the truck?... You told the police that the gun was under the seat, didn’t you? MIKE: Yes, sir (3 RR 87:7-88:15).
Charla before talking to Jason, Mindy, etc. (no mention; under the seat).:
Mike with Charla: the suspect I [Bart] jumped out of the suspect vehicle [Bart’s truck] and pulled the gun out with his left hand. He asked [Mike] if he was trying to waste their time or if he was a cop (3 APP 11:12-14).
Mike with Charla: the AP1 then pulled comp to him and searched him before pulling the shotgun and striking comp with it and ordering him to empty his pockets (3 APP 32:45-46).
Mike with Charla: AP1 (Gaines) pulled the gun on him and hit him with the gun (3 APP 41:58-59).
Mike with Charla: [Bart] exited the vehicle and pointed a shotgun at [Mike](3 APP 118:11-12).
Charla after talking to Jason, Mindy, etc. (under the seat):
Mike with Charla: at that time [Bart] exited his truck and in a swift movement reached under his truck seat with his left hand and came out with the suspect weapon/shotgun (3 APP 18:34-36).
Jason with Charla: [Bart] suddenly got out of the truck and pulled something out from under the seat and pointed a shotgun at [Mike](3 APP 27:18-20).
So Bart got out of the truck and hit one of them in the face with the shotgun. Daniel was already out of the truck or he got out and punched the dude that had already got hit with the shotgun. That is how he cut his finger. I didn’t know what they did to the other guy, but they beat him up (3 APP 79:6-10).
When [Mike] complied [Bart] struck him with the side of the gun and then hit him in the head with the butt of the weapon. One of the other suspects punched him in the mouth (3 APP 11:16-18).
[Bart] then struck [Mike] with the gun on the head and then hit him again with the gun (3 APP 18:37-38).
[Mike] identified [Daniel] as the person he [saw] assault [Andy]. He stated that [Daniel] also was the one that punched [Mike] in the mouth causing the bruising and busted lips after [Bart] pulled the gun on him and hit him with the gun. [Mike] said that [Daniel] was riding in the center seat of the confiscated vehicle [Bart’s truck]. [Mike] related that he saw both [Jason & Daniel] strike [Andy]. He saw [Jason] take [Andy’s] wallet just before [he] ran off and was shot (3 APP 41:55-60 + 41:62-64).
Then he hit me with the gun. [H]e crowned me on top of the head with the barrel of the gun¦. He saw I hadn’t went for my wallet yet and he crowned me on top of the head with the barrel of the gun. Then his attention was diverted to Andy. I looked to my left and I was punched in the left side of my face by the white guy. After he punched me I looked over and I saw he was distracted (3 APP 65:39-43).
[Bart] then struck [Mike] in the head with the gun twice¦. While [Bart] was assaulting [Mike], [Jason] and [Daniel] were assaulting [Andy] who was with [Bart](3 APP 118:12-16).
MIKE: I was crowned and punched in the ribs¦. HARTMANN: You say you got crowned when Bart hit you with the shotgun? MIKE: Yes, ma’am. HARTMANN: Were you also hit in your face? Yes, ma’am. HARTMANN: Was that done with a fist or with a shotgun? MIKE: Fist. HARTMANN: Do you know whether it was Bart[] or Jason or Daniel? MIKE: Who punched me? HARTMANN: Yes. MIKE: No, ma’am. I’m not sure. HARTMANN: Was it one of the three? MIKE: I know it was Bart because he started -- he -- looked over at Andy and he started moving away (3 RR 69:21-70:22).
The more I thought about it and went back, the more blurry it gets to me. I was almost certain right after it happened that Jason was behind Bart. More that I have thought about that -- (3 RR 88:9-12).
[Andy] stated he saw [Bart] grab [Mike] by his shirt. [Andy] started to go over there and [Bart] got out and grabbed the shotgun and the other suspects [Jason & Daniel] got out. The blond guy demanded [Andy]’s wallet and punched him in the mouth. He was hit more than once and fell to the ground (3 APP 17:18-22).
[Andy] stated he did not recall being struck by [Daniel] as Mike reported¦. [Andy] also confirmed that when [Bart] got out of the confiscated vehicle, [Jason] and [Daniel] also got out. [Jason] immediately approached [Andy], punched him in the mouth, knocking him down (3 APP 42:13-14 & 18-21).
The driver had Mike pushed up against the car and I saw the driver hit him in the head with the barrel of the gun¦. After I gave the white [guy] my wallet he pushed me down (3 APP 64:1-4).
ANDY: I kind of hear Bart yelling at Mike and see over Jason’s shoulder hitting him with the barrel of the gun¦. FORAN: Where is he hitting him with the shotgun? ANDY: Just in the head¦. Then I don’t really see anything (3 RR 103:12-21). ANDY: Bart and the guy that was sitting in the middle, they get out -- the only two people I see was doing most of this. Jason ¦ was the guy sitting in the middle hit me in the face (3 RR 101:24-102:2).
Charla with Williamson: [Bart] ¦ struck [Mike] in the head with the shotgun twice. [Mike] complied¦. [Jason] and Daniel also exited the truck and began beating on [Andy] ¦ knocking him to the ground and splitting his lip (3 APP 96:10-11).
Charla with Catalano: [Bart] ¦ struck [Mike] in the head with the gun¦. [Bart] then turned his attention to [Andy] who ¦ had been struck in the face by [Jason](3 APP 73:8-9).
HARTMANN: You have been mentioning the name Bart. Do you see anybody in the courtroom that you recognize to be the Bart that was out at the particular location that night? MIKE: Yes, ma’am. HARTMANN: Can you describe where he’s located and something that he’s wearing? MIKE: He’s wearing a tie and coat [as were Foran, Westfall (Greg), and Minick (Cheyenne)]. He’s sitting three people down to you, to your left [Minick?!][(1) Foran was to Hartmann’s left, followed by (2) Westfall (Greg), and (3) Minick (Cheyenne); Minick (Cheyenne) was the third person, and blond headed, like Jason; Minick (Cheyenne) was the only blond headed guy sitting at the defendant’s table]. HARTMANN: Is he the third person or fourth person? MIKE: The fourth person [counting (1) Hartmann, (2) Foran (3) Westfall (Greg), and (4) Minick (Cheyenne), Mike again identified Minick (Cheyenne)](3 RR 54:22-55:6).
[Bart] then struck [Mike] in the head with the gun twice. [Jason] stated that [Daniel] did punch [Andy] knocking him to the ground (3 APP 27:20-22).
HARTMANN: Who are the people in State’s 25? MINDY: Bart, Tara, Jason, Daniel and me. HARTMANN: Is that you down there on the left? MINDY: Yes. HARTMANN: You had a different hair color [Yeah! For trial it was Gothic black] then? MINDY: Yes (3 RR 176:11-16)(6 RR SX 25).
[Daniel & Bart] beat [Mike] up and took everything they [Mike & Andy] had Jason said they gave everything up real easy. They said, here take it all, because they were scared (3 APP 79:9-11).
I don’t know what they [Bart & Daniel] did to the other guy [Andy], but they beat him [Andy] up and took everything (3 APP 79:9-10).
[Bart] ordered him to empty his pockets and he did, placing everything on the step-side of [Bart’s truck](3 APP 11:18-20).
[Bart] pointed the gun at [Mike] and demanded that [Mike] empty his pockets .[Bart] ¦ demand[ed] [Mike] give his wallet. [Mike] stated he complied and put the things in his pocket on the stepside of the suspect vehicle [Bart’s truck](3 APP 18:36-40).
[Bart] ¦ order[ed] him to empty his pockets. While [Bart] was robbing [Mike] [Jason & Daniel] were robbing [Andy](3 APP 32:45-48).
[A]s he got out he ¦ said, “give me your fuckin money” (3 APP 65:37-39).
MIKE: He jumped out of his car, and I just remember hearing several times give me your wallet (3 RR 67:1-2). MIKE: And as soon as Bart jumped out, the other two guys went around -- one -- I’m not sure at this point¦. The more I think about it, these two guys, the more I had it confused in my mind, like the blurrier it gets. I’m not sure if it was Jason or the other guy. I’m not sure who went where. One went behind Bart and the other one went in front of the truck to Andy¦. I think I remember Jason said give him your wallet. That’s the only thing different that I remember (3 RR 68:3-21). HARTMANN: Did you pull a wallet out. MIKE: No, ma’am¦. Hartmann: Did you have a wallet on you? MIKE: Yes, ma’am. HARTMANN: Did you pull it out? MIKE: No, ma’am. HARTMANN: I got away before I had to give my wallet (3 RR 85:4-86:4).
HARTMANN: Did Andy pull anything out of his pocket? MIKE: Yes, ma’am¦. Actually I knew what was in his pockets¦. We had been hanging out with each other all night (3 RR 85:19-86:4).
The blond guy demanded [Andy]’s wallet and punched him in the mouth. He was hit more than once and fell to the ground. He heard [Bart] tell them to get his wallet and the blond one said he already had [it](3 APP 17:20-23).
[Jason] immediately approached [Andy] ¦ and demanded his wallet (3 APP 42:20-21).
The white guy got out on the driver’s side and hit me in the face. He said, “give me your fucking wallet.” He was blond with short hair (3 APP 63:40-42). After I gave the white [guy] my wallet he pushed me down¦. The guy with the gun said, “get his money¦. The white guy said he already had it” (3 APP 64:4-7).
FORAN: This guy is yelling at you? ANDY: Punches me in the face and knocks me down¦. They are saying give me your wallet. FORAN: Do you give them your wallet? ANDY: Yes, I give them my wallet¦. I don’t really see anything because he -- Bart comes over and points the gun at me and goes to get his wallet. FORAN: He tells them to get your wallet? ANDY: Yes. FORAN: What do they say? ANDY: I have already gotten it (3 RR 102:21-104:4).
[Bart] then turned to [Andy] and demanded his wallet. [Jason] said that he told [Andy], “give me the fuckin wallet. Look what he did to your friend.” [Andy] gave [Jason] the wallet (3 APP 27:22-25).
[Jason] stated he told [Andy] to give him the “fuckin wallet, see what he did to your friend.” [Jason] took the wallet from [Andy] to keep [Andy] from getting shot but [Bart] shot him anyway (3 APP 120:6-8).
[Bart] ordered [Mike] to give up his walle[t](3 APP 120:3-4).
HARTMANN: You have been mentioning the name Bart. Do you see anybody in the courtroom that you recognize to be the Bart that was out at the particular location that night? MIKE: Yes, ma’am. HARTMANN: Can you describe where he’s located and something that he’s wearing? MIKE: He’s wearing a tie and coat [as were Foran, Westfall (Greg), and Minick (Cheyenne)]. He’s sitting three people down to you, to your left [Minick?!][(1) Foran was to Hartmann’s left, followed by (2) Westfall (Greg), and (3) Minick (Cheyenne); Minick (Cheyenne) was the third person, and blond headed, like Jason; Minick (Cheyenne) was the only blond headed guy sitting at the defendant’s table]. HARTMANN: Is he the third person or fourth person? MIKE: The fourth person. [counting (1) Hartmann, (2) Foran (3) Westfall (Greg), and (4) Minick (Cheyenne), Mike again identified Minick (Cheyenne)](3 RR 54:22-55:6).
HARTMANN: Who are the people in State’s 25? MINDY: Bart, Tara, Jason, Daniel and me. HARTMANN: Is that you down there on the left? MINDY: Yes. HARTMANN: You had a different hair color [Yeah! For trial it was Gothic black] then? MINDY: Yes (3 RR 176:11-16)(6 RR SX 25).
Mindy with Charla with Jason: Then one of them started running and Bart shot at him twice and he fell behind a truck. Jason was crying and he said that the other guy was sitting on the curb and Bart walked up to him about 6 feet away and held the gun up and shot him. Jason said he was screaming at Bart, telling him to get in the car, asking him why he did that. Bart got back in the truck and they left (3 APP 79:11-16).
[Mike] was scared and started to run off when he heard a shot. He stated he thought he might have been hit and he ran to the store. He said he only remembered hearing one shot. He then was aware that a vehicle sped by and he believes it was probably the suspect vehicle [Bart’s truck](3 APP 11:21-25).
[Mike] looked over and saw that the other suspects were beating [Andy]. [Bart] turned to look that way and [Mike] began running toward Southcrest. He heard a gunshot and then felt something hit and he continued running to the store at the corner of James and Southcrest where he asked for help¦. He said that he did not hear any more shots but he was running and his heart was pounding. He heard a vehicle speed by and then finally the ambulance arrived (3 APP 18:41-45 & 18:47-48).
[Bart, Jason, & Daniel] got back into [Bart’s truck] and backed up and drove near [Andy] and fired the shotgun directly at the prone [Andy], striking [Andy], [Bart’s truck] then fled off (3 APP 17:25-27).
[Andy] was laying on the sidewalk when [Bart] shot at him from a short distance away. [Bart, Jason, & Daniel] then fled the scene without offering any assistance or calling for help (3 APP 32:48-51).
They got into the truck and pulled out of the parking space and then I got shot. I did not see them point the gun at me (3 APP 64:7-9).
ANDY: They pulled out and they shoot me. FORAN: When you say “they shoot you --” ANDY: I didn’t see the gun actually pointed at me¦. The window was down [t]hen they shoot me and drive off and chase after Mike (3 RR 104:23-105:6).
HARTMANN: You have been mentioning the name Bart. Do you see anybody in the courtroom that you recognize to be the Bart that was out at the particular location that night? MIKE: Yes, ma’am. HARTMANN: Can you describe where he’s located and something that he’s wearing? MIKE: He’s wearing a tie and coat [as were Foran, Westfall (Greg), and Minick (Cheyenne)]. He’s sitting three people down to you, to your left [Minick?!][(1) Foran was to Hartmann’s left, followed by (2) Westfall (Greg), and (3) Minick (Cheyenne); Minick (Cheyenne) was the third person, and blond headed, like Jason; Minick (Cheyenne) was the only blond headed guy sitting at the defendant’s table]. HARTMANN: Is he the third person or fourth person? MIKE: The fourth person [counting (1) Hartmann, (2) Foran (3) Westfall (Greg), and (4) Minick (Cheyenne), Mike again identified Minick (Cheyenne)](3 RR 54:22-55:6).
[Bart] then struck [Mike] in the head with the gun twice. [Jason] stated that [Daniel] did punch [Andy] knocking him to the ground (3 APP 27:18-22).
HARTMANN: Who are the people in State’s 25? MINDY: Bart, Tara, Jason, Daniel and me. HARTMANN: Is that you down there on the left? MINDY: Yes. HARTMANN: You had a different hair color [Yeah! For trial it was Gothic black] then? MINDY: Yes (3 RR 176:11-16)(6 RR SX 25).
Hanlon: On 2-23-02, I met with [Charla & Hanlon] at the detective office and did positively identify the man who shot me. I was unable to identify the one who punched me in the mouth. [Dated 2/23/02, Signed & Notarized by Donald T. Hanlon, no less; this paragraph looks tacked on to or added to the end of Mike’s affidavit, and what? Charla couldn’t find anybody else she trusted enough to “vouch” for her warrant less arrest she was lying about and covering up? As shown below (See Subchapter E below), she should’ve selected somebody more credible to lie for her](3 APP 66:13-15 & 31).
Fineman / Shipp: He told me that was not him. He swore on his life that it was not him climbing out the window in spite of the fact that [Fineman & Shipp] positively identified him (3 APP 22:27-29).
FORAN: Now, State’s Exhibit No. 26 -- FAZIO: 27. FORAN: That’s in a much more damaging condition than this; is that right? FORAN: Yes, it is (3 RR 245:25-246:4). 2. FORAN: Did you also process the two shotgun shells that we were talking about earlier? FAZIO: Yes, I did. FORAN: Did you find any usable prints? FAZIO: No, I did not (3 RR 247:22-248:1).
Hartmann with Westfall: Both Mindy ¦ and Tarah ¦ reported to the TC District Attorney’s office in separate meetings that Jason ¦ had admitted to them that he had LOADED THE WEAPON used in the offense (emphasis added)(1 CR 70:3)(2 CR 25:3).
CSI Walles: I observed several items of evidence in the street at the north end of the parking lot. Among the items observed were firearms evidence (items 1 [one plastic shot cup], 2. [plastic shotgun shell] and 13 [one piece of circular red plastic]). Further south of these items I observed two fired shotgun shells (items 10 [one fired shotgun shell (federal brand)], 11. [one fired shotgun shell (federal brand)], both of which appears to have been run over by a vehicle (3 APP 46:15-24).
FORAN: [Y]ou also mentioned that you had recovered several fired shotgun shells; is that right? WALLES: Yes, sir. FORAN: Let me show you what’s been marked as Exhibit 27-A and 30-A as well as the contents, 27 and 30. Do you recognize those items? WALLES: Yes¦. [A]re they still substantially in the same condition they were when you collected them on February 21, 2002? WALLES: Yes, sir¦. FORAN: Exhibit 31 and Exhibit 31-A, is that your Item No. 13? WALLES: Yes, sir¦. That’s a round piece of red plastic that I collected from the street. FORAN: Is that usually associated with a shotgun shell? WALLES: Yes, sir (3 RR 128:20-129:2 + 129:19-21, & 130:4-6 + 8-11).
[Mindy & Tarah] then returned to Crowley and a few minutes later [Jason, Bart, & Daniel] pulled up in [Bart’s truck](3 APP 22:54-55).
We went to go take [K]od[i] home. Whenever we pulled into [K]od[i]’s driveway, Bart, Jason and Daniel pulled in behind us. We told them to follow us to Conoco real quick (3 APP 77:33-35).
A short time later [Bart], [Jason] and Daniel pulled up behind Mindy and [T]ara[h] and went with them to a convenience store (3 APP 119:1-2).
HARTMANN: When y’all left the Rice Paddy, where did you go at that point? MINDY: To take [K]od[i] home. HARTMANN: Was there anybody else with y’all? MINDY: No. HARTMANN: Just you, Tara[h] and [K]od[i]? MINDY: Yes. HARTMANN: Did you make it to [K]od[i]’s house? MINDY: Yes. HARTMANN: And dropped her off? MINDY: Yes. HARTMANN: About how long was it -- strick that¦. You said that after Bart and his friend and Mike and his friend left, y’all stayed there about 15 to 20 minutes? MINDY: Five to ten. HARTMANN: How long did it take to get to [K]od[i]’s house? MINDY: Three to five minutes (3 RR 165:19-166:11). (Note: if they stayed there 5 to 10 minutes and it only took 3 to 5 minutes to get to Kodi’s, then Jason, Daniel and I were only gone 8 to 15 minutes which is obviously wrong. Where else did they go? Get some speed?)
HARTMANN: Did y’all go anywhere in between? MINDY: No (3 RR 166:12-13). (Note: Yes, they did. And both Westfall (Greg) and Mowla were made well aware of this. See Chapter 9 above. I asked her whether they had just left and how come we didn’t see them leaving the Rice Paddy, and she told me that they left shortly after we left to go to Jennifer’s (Jernigan’s) to score some more ice (methamphetamine) and I said, “Oh.” Perhaps that’s why her timeline’s a little off.)
HARTMANN: You noticed -- when you were at [K]od[i]’s house, did you see anybody else that you recognized? MINDY: Yes. HARTMANN: Who did you recognize[] MINDY: Bart, Jason and Daniel pulled up behind us while we were dropping her off¦ (3 RR 166:14-166:19). HARTMANN: Did [K]od[i] go into her house? MINDY: Yes¦. HARTMANN: Let me ask you this. When you were at [K]od[i]’s house -- strike that (3 RR 167:1-2 & 167:15-16). (Note: What’s with all this “strike that” business? Was Hartmann having trouble asking the question? She must’ve been familiar with the confusion surrounding Kodi’s and the telephone call? Did she know it was a lie? Most likely. Did she try to correct it? No! That threat would unwind the whole sweater.).
FORAN: Did you try calling Bart again? TARAH: Well -- FORAN: Or did he call you? TARAH: I only talked to him once while they were gone (3 RR 192:7-10). (Note: Yeah! In other words she didn’t call me at Walmart)
FORAN: While they were gone, you only talked to him once? TARAH: Uh-huh. FORAN: Well, did you see them again that evening? TARAH: Yes. FORAN: Where did you see them? TARAH: Whenever we left the Rice Paddy we were taking [K]od[i] home and he was driving, behind us -- never mind (3 RR 192:11-18). (Note: Oh! Whoops, she just got caught in a lie.)
FORAN: Did you take [K]od[i] back home? TARAH: Uh-huh. FORAN: Is that a yes? TARAH: Yes. FORAN: When you got to [K]od[i]’s house, did you see anybody else over there? TARAH: Me and Bart pull up with Jason and Daniel (3 RR 192:7-25).
FORAN: Okay. Now, you gave a statement to Detective [Charla] Smith back on February 24 of this year; is that right? TARAH: Yes. FORAN: First of all, it was a pretty long one, wasn’t it? TARAH: Yes. FORAN: Does that look like your signature? TARAH: Yes. FORAN: I want to show you something and I want you to read this paragraph to yourself. And then I want to ask you if that refreshes your memory about your attempting to get a hold of Bart¦ (3 RR 199:24-200:10). (Note: And if nobody noticed Tarah getting caught up in his (Foran’s) lie, Foran did.)
Do you remember trying to get hold of Bart? TARAH: Yes. FORAN: Okay. And then the phone cut off. Did you try calling him back? TARAH: Yes. FORAN: Did that refresh your memory? TARAH: Yes (3 RR 200:12-18).
Note: Here is what I think Foran had Charla add to Tarah’s affidavit and here is what Foran had Tarah read:
"I called Bart on Mindy's mom's cell phone to see where they were at. Bart told me he was at WalMart. I asked him what he was getting and he told me he was getting bullets [But yet I wouldn't tell them about the shooting; they made it sound like they were pulling teeth! But for this little tidbit]. I got real mad and asked him why and what he was getting the bullets for. He said, "just in case something happens and I need it." His phone cut out and I was trying and trying to call him and he never answered. Finally he called me back like 20 minutes later and I asked him what happened. He said they didn’t have [any]thing¦. We told him that I was about to go back to my house and they said they wanted to meet up with us and go to my house too. So the plan was for them to meet us at my house. I was driving to drop [K]od[i] and I noticed that they were right behind us. I pulled up to drop [K]od[i] off (3 APP 82:4-15)).
FORAN: After you tried calling him back, were you able to get hold of him? TARAH: No. FORAN: Did he finally call you back? TARAH: Whenever we were pulling up to [K]od[i]’s he was behind me, he called back. FORAN: Did you ask him what happened? TARAH: Not yet because we were just like right down the street from where we were about to stop. So I waited and pulled up to [K]od[i]’s house. FORAN: Let me show you this last sentence. TARAH: Okay. FORAN: Do you remember telling the police that he called you back after about 20 minutes and he said they didn’t have [any]thing? TARAH: Yes (3 RR 199:24-201:9). (Note: And so Foran shoe-horned Tarah’s testimony into supporting his intent to “kill narrative.” Brilliant!).
Charla with Foran: on 2-26-02, I met with ADA Foran at his office. He reviewed the depositions I had obtained and advised me on what would be needed to further this case (emphasis added)(3 APP 24:34-36).
I met with ADA Foran who advised me to have Mindy and [T]ara[h] view the video and see if they could identify [Bart](3 APP 119:32).
I got out of the car and went up to Bart’s truck and the guy Daniel had cut his hand and he was bleeding everywhere and he had blood on Bart’s truck by the door handle (3 APP 82:16-17).
FORAN: Was there something different about Daniel than when he left the Rice Paddy? TARAH: Yes. FORAN: What was different about Daniel? TARAH: His hand was bleeding. FORAN: He wasn't injured before he left, was he? TARAH: No (3 RR 193:1-7).
Mindy: [Daniel] was bleeding from a hand wound (3 APP 22:53-54).
They noticed that Daniel’s hand was bleeding and had bled on [Bart’s] truck. He said that he had been in a fight (3 APP 119:2-3).
Daniel’s hand was bleeding and we asked them what happened. I washed Daniel’s hand off (3 APP 77:37-39).
HARTMANN: Did you notice anything unusual about Daniel? MINDY: Yes. HARTMANN: What did you notice unusual about him? MINDY: His hand was bleeding and he was real upset and not acting normal. HARTMANN: Okay. And you said his hand was bleeding. Did it appear to be wounded? MINDY: Yes. HARTMANN: A fresh wound? MINDY: Yes. HARTMANN: Did you ever actually see the wound? MINDY: Yes. HARTMANN: Could you describe how it appeared? MINDY: A small cut [3 APP 126]. I washed it off for him [but yet he didn’t tell her anything?]. HARTMANN: Where was it located on his hand? MINDY: I’m thinking about right here, but I am not completely sure (3 RR 167:23-168:14).
¶ 2. There is in said suspected vehicle property concealed and kept in violation of the laws of Texas and described as follows:
...
Blood evidence
....
I photographed [Daniel]’s ¦ hands. He did have a cut on his right hand ring finger where [Mindy & Tarah] had said it would be. [Mindy] had said she doctored the cut when [Bart, Jason, & Daniel] came to her house after the robbery/shooting (3 APP 37:58-61).
Charla with Carr: Daniel[‘s] ¦ hand was cut and bleeding all over [Bart's] truck. [Daniel] said he hit someone (3 APP 102:4.M).
We stopped by a gas station and I saw Bart looking through a wallet and I saw the id and knew something had happened (3 APP 82:19-21)(Note: But yet she later thought that nothing had happened, right?)
FORAN: Now, when you guys got to the gas station -- is that the Conoco over there? TARAH: Yes. FORAN: did you see Bart doing anything with some property? TARAH: Yes. He had a wallet. FORAN: What was he doing with it? TARAH: Looking through it. FORAN: Okay. Did you see any of the items in it? TARAH: A lottery ticket. FORAN: Anything else? TARAH: No (3 RR 199:6-23).
Charla with Andy: [Jason] demanded [Andy]’s wallet¦. [Andy] heard [Bart] tell them to get his wallet and the blond one said he already had it (3 APP 17:20-21 & 22-23).
[Jason] immediately approached [Andy] ¦ and demanded his wallet (3 APP 42:20-21).
[Jason] got out on the driver’s side and hit me in the face. He said, “give me you’re fucking wallet.” He was blond with short hair¦. The guy [Jason] with the gun said, “get his money.” The white guy said he already had it (3 APP 63:40-43 & 64:5-7).
[Andy] had already given up his wallet to [Jason] after [Andy] was punched in the mouth and fell to the ground (3 APP 118:19-20).
Mike with Charla: [Mike] related that he saw both [Jason & Daniel] strike [Andy]. He saw [Jason] take [Andy’s] wallet just before [Mike] ran off and was shot (3 APP 41:62-41:64).
HARTMANN: Did Andy pull anything out of his pocket? MIKE: Yes ma’am. Andy pulled out a lot of things. He pulled out, like some scales, his wallet, a bag. He had quite a few things in his pockets. HARTMANN: What is he doing with these things he’s pulling out of his pocket? MIKE: I wasn't looking at him when he was doing it. Actually I knew what was in his pockets¦. We had been hanging out with each other all night (3 RR 85:19-86:4).
[W]e asked them what happened and they wouldn’t tell us. I washed Daniel’s hand off. Daniel and Jason kept saying they wanted to go home and kept acting like something was wrong. We kept asking but they wouldn’t tell us. [Jason & Daniel] asked Tara[h] to take them home so she did ¦ because of the way Jason and Daniel were acting (3 APP 77:38-41 & 78:5-6). [Bart] was acting like it was not a big deal (3 APP 78:3).
HARTMANN: And you said that he was acting upset? MINDY: Yes. HARTMANN: How was he acting upset? MINDY: He just looked like real scared. HARTMANN: Okay. MINDY: Basically. HARTMANN: How did Jason appear to be? MINDY: He appeared to be scared too. HARTMANN: What was it about Jason that led you to believe he was acting scared? MINDY: They were kind of pacing back and forth and kept talking about how they wanted to go home and they wanted to leave. HARTMANN: And were you and Tara[h] asking them what was wrong? MINDY: Yes. HARTMANN: How was Bart behaving? MINDY: Not -- not any different really [You mean I didn’t think we did anything wrong?]. HARTMANN: He just seemed pretty normal to you? MINDY: Yes. HARTMANN: Same old Bart.? MINDY: Yes. HARTMANN: Did -- did Daniel and Jason eventually end up going home? MINDY: Yes. HARTMANN: How did they get home? MINDY: Tara[h](3 RR 168:24-170:2).
Jason and Daniel were like acting real scared and saying they were going to have bad dreams. Bart was acting like nothing had really happened¦. Me and Mindy knew something bad had happened, worse than them getting a fight or something because of the way that they were acting. They wouldn’t say anything except that they had gotten into a fight. Daniel wanted to go home and he and Jason was a[ct]ing really shaken up. Jason was staying the night at Daniel[‘s] house so I left to take Daniel and Jason home¦. Whenever I was taking them home I kept asking them what happened. They told me that it wasn’t their business to tell that it was Bart’s business and that he had done something and if I wanted to know to ask Bart [Where did this lie originate from? Did it originate independent of Jerri, or did Mindy and Tarah have the forethought ahead of Jerri to add this tidbit?](3 APP 82:17-19 & 82:23-31).
[Mindy & Tarah] asked them [Jason, Bart, & Daniel] what had happened and no one would tell them. [Mindy & Tarah] and [Bart, Jason, & Daniel] went to [Tarah]’s home. [Mindy & Tarah] both said that [Jason] and [Daniel] were acting strange and they asked what happened. [Jason & Daniel] asked [Tarah] to take them home and she took them to [Daniel]’s house (3 APP 22:54-58).
[Bart][i.e., Jason] was ¦ looking through a wallet¦ (3 APP 22:61). He [Jason] said that they didn’t get any money but held up a lottery ticket and said, “I got a lottery ticket.” (3 APP 22:63-64). He pulled out the wallets of one of the victims and began going through it in the girls [Mindy’s & Tarah’s] presence. He did not get any money but pulled out a lottery ticket and said at least he got a lottery ticket [If true, how were we (Jason, Daniel, or I) able to avoid telling them what happened]?] (3 APP 119:8-10).
HARTMANN: Did he say what he had gotten out of it? MINDY: A lottery ticket. HARTMANN: Did he say whether or not they had any money? MINDY: No. HARTMANN: Did you see the lottery ticket? Did he show it to you? MINDY: Yes (3 RR 170:25-171:6).
They all came in and we were in my room and they were like getting rid of the wallet. They are going through the wallet at my house. They had some cards and stuff like that (3 APP 82:21-23).
FORAN: When you were at your house did you see that wallet again or did you see a different one? TARAH: I think it was the same one. FORAN: What was he doing with it there? TARAH: He was -- he did something with the lottery ticket (3 RR 199:18-23).
[Mindy & Tarah] asked them [Jason, Bart, & Daniel] what had happened and no one would tell them. [Mindy & Tarah] and [Bart, Jason, & Daniel] went to [Tarah]’s home. [Mindy & Tarah] both said that [Jason] and [Daniel] were acting strange and they asked what happened. [Jason & Daniel] asked [Tarah] to take them home and she took them to [Daniel]’s house (3 APP 22:57-58).
[W]e asked them what happened and they wouldn’t tell us. I washed Daniel’s hand off. Daniel and Jason kept saying they wanted to go home and kept acting like something was wrong. We kept asking but they wouldn’t tell us. [Jason & Daniel] asked Tara[h] to take them home so she did ¦ because of the way Jason and Daniel were acting (3 APP 77:38-41 & 78:5-6). [Bart] was acting like it was not a big deal (3 APP 78:3).
HARTMANN: And you said that he was acting upset? MINDY: Yes. HARTMANN: How Was he acting upset? MINDY: He just looked like real scared. HARTMANN: Okay. MINDY: Basically. HARTMANN: How did Jason appear to be? MINDY: He appeared to be scared too. HARTMANN: What was it about Jason that led you to believe he was acting scared? MINDY: They were kind of pacing back and forth and kept talking about how they wanted to go home and they wanted to leave. HARTMANN: And were you and Tara[h] asking them what was wrong? MINDY: Yes. HARTMANN: How was Bart behaving? MINDY: Not -- not any different really [You mean I didn’t think we did anything wrong?]. HARTMANN: He just seemed pretty normal to you? MINDY: Yes. HARTMANN: Same old Bart? MINDY: Yes. HARTMANN: Did -- did Daniel and Jason eventually end up going home? MINDY: Yes. HARTMANN: How did they get home? MINDY: Tara[h](3 RR 168:24-170:2).
The boys (after her (Charla’s) talk with Jerri)[Jason, Bart, & Daniel] all went to [T]ara[h]’s home and [T]ara[h] finally took Jason ¦ and Daniel home (3 APP 119:3-4).
TARAH: We went to my house¦. I gave [Jason & Daniel] a ride home. FORAN: Did they have much to say? TARAH: No. FORAN: Can you describe for the jury how they were acting? TARAH: They were just -- I could tell something happened by the way they were acting, but they were just kind of being quiet. FORAN: Why is it that you gave them a ride home instead of Bart? I mean, after all, he had his truck there. TARAH: Because -- I don’t remember I think they just asked me to give them a ride home and I gave them a ride. FORAN: They asked you but not Bart? TARAH: Yeah (3 RR 193:16-194:1-14).
I went in my [mom’s] room and asked my mom if it was ok if he [Bart] stayed the night. She said yes (3 APP 82:36-37).
FORAN: Did you get your mother’s permission for him to spend the evening? TARAH: No (3 RR 196:1-3).
Melissa with Westfall: WESTFALL: Did you speak to him on the phone on Thursday? MISSY: Yes. ... He said M[om] ... I am spending the night with Tara[h] ¦. I was worried that he might miss work or be late because he had never been late or anything . He said, No. I am closer to Crowley here. I can get to work (4 RR 63:24-25, & 64:19-21).
Missy talked to Bart on the phone late Thursday night¦. He was saying he was going to stay the night at Tara[h]’s¦. Missy was concerned that Bart would screw his job up (SHCR 118 4th full ¶).
The boys (after her (Charla’s) talk with Jerri)[Jason, Bart, & Daniel] all went to [T]ara[h]’s home and [T]ara[h] finally took Jason ¦ and Daniel home (3 APP 119:3-4).
TARAH: We went to my house¦. I gave [Jason & Daniel] a ride home. FORAN: Did they have much to say? TARAH: No. FORAN: Can you describe for the jury how they were acting? TARAH: They were just -- I could tell something happened by the way they were acting, but they were just kind of being quiet. FORAN: Why is it that you gave them a ride home instead of Bart? I mean, after all, he had his truck there. TARAH: Because -- I don’t remember I think they just asked me to give them a ride home and I gave them a ride. FORAN: They asked you but not Bart? TARAH: Yeah (3 RR 193:16-194:1-14).
[Bart] said they had robbed these guys and left them for dead. He said he had never killed anyone before and it was exciting and a rush ¦ (3 APP 22:61-63). He told them about the shooting after making them swear they would never tell ¦ (3 APP 23:4-5). The boys [Jason, Bart, & Daniel] had confessed to [Mindy & Tarah](3 APP 23:27)). [Bart] then boasted that he had shot two people and left them to die. He said that he had never killed anyone before and it was a rush (3 APP 32:51-53).
He said, “those two guys, we robbed them, we shot them and probably left them for dead¦ (3 APP 78:1-2). Me and Tara[h] got real upset. We asked him why he did that and he said he didn’t know why he did that ... (3 APP 78:4-5). He said it was either exciting or a rush. I don’t remember his exact words but then he said, “it was my first time to ever kill anybody. Me and Tara[h] were like, that’s not something to be proud of and he said, “oh well.” ... (3 APP 78:7-9). We kept asking each other what was wrong with Bart and why would he do something like that and [W]hat they would do (3 APP 78:11-12).
[Bart] told both Mindy and [T]ara[h] they had to swear not to tell anyone. He then told them that he and [Jason] and Daniel had robbed and shot those guys and left them for dead. He then said that he had never killed anyone before and it was exciting and a rush (3 APP 119:5-8).
MINDY: [A]t first [Bart] wouldn’t tell us anything. And then he said he shot two people. HARTMANN: Before he told you anything, did he ask you not to tell? MINDY: Yes. HARTMANN: Did he ask you to swear not to tell? MINDY: Yes. HARTMANN: And then I guess you and Tara[h] said, okay, fine, we swear we won’t tell anybody and what did he say he had done? MINDY: He said that they robbed Mike and Andy and that he shot them and left them for dead¦. HARTMANN: When he was telling you what he had done, what was his behavior like? MINDY: Normal as if it wasn't a big deal [You mean like I didn't think we had done anything wrong]. HARTMANN: Did he tell you how it felt to him to have done this? MINDY: Like it was a thrill, like it was a rush. HARTMANN: What happened after he told you about this? MINDY: He went to sleep (3 RR 170:13-24 & 171:7-14).
Due to the fact that two people were robbed and shot I did issue a second warrant for the arrest of [Bart] for criminal attempt capital murder. Judge Catalano did sign the warrant and assess a bond of $350,000 due to the fact that [Bart] was talking of going to Mexico and bragging that $100,000 would not keep him in (3 APP 24:23-27)[or perhaps because Mindy, Jerri, & Jason were telling her that I was going to kill them if I found out they were talking to the cops and they didn’t want me out messing up their network of friends and lies].
Charla with Catalano: [Bart] told both [Mindy & Tarah] that he had robbed and shot two people and left them for dead. He stated he had never killed anyone before and it was exciting and a rush (3 APP 74:23).
Charla with Ofr. Salazar: On 022502 Det C.B. Smith of the south division CIU obtained an arrest warrant 02-F-0377-SD on [Bart](3 APP 20:15-16).
Charla with Williamson: [Bart] told both [Mindy] and [T]ara[h] that they had robbed and shot two people and left them for dead and it was exciting and a real rush (3 APP 97:24).
Charla with Carr: [Mindy’s] mother [Jerri][and thus the birth of the whole idea of me confessing and distracting and redirecting Charla’s efforts and attentions toward me and solely me] called me and said she had overheard a phone conversation between Mindy and Bart ¦ and had discovered that [Mindy] and [T]ara[h] were told by [Bart] about the shooting within an hour of the shooting¦. He said he shot them and left them for dead. [Bart] told them he had never killed anyone before and it was a real exciting rush (3 APP 102:4.K-L).
Several CDs were missing, my shotgun, and the $40 in gas that I had just put in it the night before when I cashed my check, were gone (See Chapter 2 above).
[Bart] also told her he had hidden the [shot]gun (3 APP 23:31-32).
[Jason] said he did not know what became of the ¦ [shot]gun. He stated that [Daniel] told him that [Bart] had said he hid the gun but [Jason] did not know where [They were always able to make up somebody around me who heard me tell them all kinds of convenient stuff they could use to their advantage, and nobody was there to put it to the crux of adversarial testing. Thank you Westfall (Greg)](3 APP 27:27-29).
On 012602 at 943 hours [26-days before the shooting] I, officer Davidsaver and officer Reynolds arrived on scene at 3210 Las Vegas trail and met with [Bart] and [his mom]. [Bart] advised while he was staying at the apartment (131) of the Westwood apartments someone took his car keys without his permission [and] took [his truck][and stole his] shotgun [among other things](3 APP 200:43-44 & 201:34-38).
[Mindy] stated that on 2-23-02, [Bart] called her and told her that he had done another robbery and shooting on 2-22-02 and had hid the property and was going with [Daniel][why him again? They couldn’t think to make up somebody else or what?] To pawn it. He did not say where he had done the shooting (3 APP 23:28-31).
[Bart] called Mindy on 2-23-02 and told her that he had done another robbery and shooting on 2-22-02. That has not been confirmed (3 APP 119:41-42).
[Bart] told me Friday night that he had jacked a whole bunch of people for stuff and they had hid it and he and Daniel were about to go pawn it (3 APP 80:2-3).
Charla with Jason: [Jason] said that [Daniel] told [Jason] later that [Bart] had told him [Daniel] he [Bart] had robbed and shot someone on the following day and had the stolen property he had taken (3 APP 27:31-33).
Charla with Catalano: That on Saturday, 2-23-02, [Bart], told them that he had also robbed and shot someone on Friday night 2-22-02 but they did not know where or when. That is unconfirmed at this time. That due to the fact that [Bart] has appeared to relish what he had done and has possibly even continued his robbery shooting I do believe that [Bart] is an extreme danger to society (3 APP 74:24-25).
Charla with Carr: That on 2-23-02, [Bart] called [Mindy] and told her he had robbed and shot someone on 2-22-02 and was going to pawn all the property. That offense, if true [What, like she may not have believed it or was she just trying to sound objective?], has not been discovered yet (3 APP 102:4.N).
[Mindy & Tarah] stated they had heard rumors that [Bart] had threatened to kill [Jason] and his family if they talked. He had been seen outside their [Jason’s, Mindy’s, & Tarah’s] house prior to his [Bart’s] arrest (3 APP 24:28-30).
Before we left we agreed that we weren’t going to tell Bart what we were doing because we didn’t know what Bart would do if he knew what we were going to do. He had already killed two innocent people, why wouldn’t he go after the witnesses ¦ (3 APP 79:27-30). I was told by Jason’s girlfriend [Jennifer Boston] that Jason saw Bart standing outside Jason’s house and Jason was scared he woke his dad (Larry, Sr.) up. Jason was scared and stayed up all night, worried that Bart was going to come after him [but yet did not call the cops] Jason thought that Bart knew something was up because they had made plans to go to Jason’s brother’s house [not Mexico?] and Jason never called Bart back (3 APP 80:19-23).
Charla with Jason: [Jason] said that later [Daniel] told him that [Bart] had told [Daniel] that he might have to kill [Jason] and his mother [Ellen Dexter][why in the world would I want to kill her, even if true? She didn’t do anything to or know anything about me]. On 2-23-02 prior to [Bart]’s arrest, [Jason] looked out his window and saw [Bart’s] truck parked two houses down. [Thought I was in Granbury? How would the math on that have worked out? Seems Jason's crazy story now is my alibi.] When [Jason]’s neighbor arrived home his headlights hit ]Bart]’s vehicle and [Bart] ran to his vehicle and left. [Jason] stated he feared that [Bart] would carry through on his threat [but he didn't call the cops!](3 APP 27:34-40).
[Bart] then told her that if she realized it was getting “hot” to let him know so he and [Jason] could head for Mexico. She agreed to do so (3 APP 23:37-39).
[Jason] was talking about leaving and going to Mexico with Bart in a week [If true, they mean Daniel]. We convinced him to stay and he wanted to go confess and he started telling us his version of the story, everything that happened (3 APP 78:37-38).
[Bart] said, “if things start getting hot, let me know so I can get out of here and go somewhere.” I said, “ok” to not let him know anything ¦ [Bart] said, “you promise that you are going to let me know if things start getting hot?” I told him that I promised (3 APP 80:5-7, & 12-14).
HARTMANN: Did you have some concerns or thoughts that Bart might try and leave the area? MINDY: Yes (3 RR 172:19-21).
WESTFALL: Now, in phrasing his request to you about the police ¦ Bart was saying let me know if the police call. What he said was if things are getting hot, let me know. Is that what he said? MINDY: Yes [Was this Westfall’s (Greg’s) attempt at clearing up all this self-serving confession business, or what?](3 RR 182:20-183:1).
Charla with Catalano: [Bart] did tell [Mindy], “if things start getting hot, let me know so I can get out of here and go somewhere.” He had mentioned going to Mexico¦. [They mean Jason, of course] That due to [Bart’s] comments about fleeing to Mexico and having plenty of money, your affiant [Charla] does believe that he is a flight risk and a danger to any persons he might encounter along the way [It worked! They effectively put me out to pasture while they situated all the broken pieces in their favor](3 APP 74:26 & 28).
Charla with Williamson: That [Jason] did tell them that he and [Bart][i.e., they mean Daniel] were going to leave town¦. That due to [Jason]’s comments about leaving town to [Mindy] and [Tarah], your affiant [Charla] has reason to believe that [Jason] is a flight risk (3 APP 97:27 & 29).
[Mindy] told [Bart] that she had heard that [Mike] could ID her and that she thought the police would be looking for her soon. He told her to deny that she knew the boys in the truck. She told him she could not do that. He then told her to make up names and tell the police it was them. She told him she could not do that. He then told her that if she realized it was getting “hot” to let him know so he and [Jason] could head for Mexico. She agreed to do so. He continued to call several times a day asking what she knew and if the police had talked to her. She denied it and he was arrested on Sat[urday] night (3 APP 23:34-41).
:
I called Bart and told him that somebody was talking about it in class and they were going to point me out and I was not going to lie about who it was. He told me to tell them that I didn't know him. I told him I wasn't going to lie. He told me to tell them it was like Bob and Terry and he made up three names. I told him I was not going to do that and he told me to call him later¦ (3 APP 78:25-30).
He said, “if things start getting hot, let me know so I can get out of here and go somewhere.” I said, “ok”, to not let him know anything [Oh! Look at her work! Look how she supposedly tricked me]¦ (3 APP 80:5-6)).
He said, “you promise that you are going to let me know if things start getting hot? I told him that I promised. He said he would call me later and I said, ok. (3 APP 80:12-14 ).
HARTMANN: Meanwhile was Bart still communicating with you and Tara[h]? MINDY: Yes. HARTMANN: How was he doing that? MINDY: Calling our house. HARTMANN: Calling your house? MINDY: Yes. HARTMANN: How frequently was he calling? MINDY: I would say probably every hour or hour and a half. HARTMANN: What was he wanting to know? MINDY: If I had heard anything -- if I had heard anything about what had happened the night before¦. HARTMANN: Did he ask you to do anything with regard to telling or not telling police or anybody else the information? MINDY: Yes. HARTMANN: What did he tell you? MINDY: To make up three names or say I didn’t know who they were. HARTMANN: Were you going to do that? MINDY: No. HARTMANN: Did you tell him you weren’t going to lie for him? MINDY: Yes. (3 RR 173:8-20 & 174:6-17).
WESTFALL: Now, in phrasing his request to you about the police-- MINDY: I’m sorry, WESTFALL: Bart was saying let me know if the police call. What he said was if things are getting hot, let me know. Is that what he said? MINDY: Yes. WESTFALL: And he thought your mother [Jerri? Weird. Or is she trying to interject herself into the mix, the drama queen that she was] actually wanted to talk to him? MINDY: Yes. WESTFALL: Which was not true. MINDY: No (3 RR 182:20-183:6).
We talk about how we are gonna go about it. While this is going on, Bart is calling and we told him what happened. He told us to lie. First he said to say we didn't know him. I told him I wasn’t going to lie, “they aren’t stupid they know we know you” [On the ball, ain’t she?] He tried to say our names are and he made up three names off the top of his head. We just pretty much after that we didn’t talk to him. He called continually and we didn’t answer the phone¦. Bart is like constantly calling us. We didn’t want to answer the phone but we finally did because we didn't want him to get suspicious so I was talking to him and trying to act normal but I really couldn't. I tried to act like I didn't know what was going on and I didn’t know he was getting turned in. He kept asking if we had heard anything else (3 APP 83:12-18, & 38-42).
FORAN: Okay. Where -- did you become concerned that people would know that you knew something about it? TARAH: Yeah. We knew that they knew who we were. TARAH: Did you talk to Bart later that day about what had happened? TARAH: Yes. FORAN: And when you talked to Bart, did he talk to you about what to say if people asked you? TARAH: Yes. FORAN: What did he tell you? FORAN: He said not to say anything. FORAN: Did he tell you to lie? TARAH: Yes. FORAN: Did he also tell you how to tell the story? TARAH: He just said not to say anything. FORAN: He didn’t tell you to use three fake names for him and Daniel and Jason? TARAH: I don’t remember that. FORAN: Do you remember him telling you that? TARAH: Uh-huh [Whose story was this, his or theirs?]. FORAN: Did that upset you that he wanted you to lie? TARAH: It put me in an awkward position [Who’s putting her in an awkward position; Foran or me?]. FORAN: Did you later meet with the detective and talk to her? TARAH: Yes (3 RR 196:17-197:16).
Hartmann with Westfall: Both Mindy ¦ and Tarah ¦ initially failed to disclose all the information they knew regarding admissions by [Bart], and the two co-defendants, Daniel ¦ and Jason (1 CR 70:2)(2 CR 25:2).
She denied it and he was arrested on Sat[urday] night (3 APP 23:40-41).
Before we left we agreed that we weren’t going to tell Bart that we were doing because we didn’t know what Bart would do if he knew what we were going to do. He had already killed two innocent people, why wouldn’t he go after the witnesses [Here they are so worried about me supposedly wanting to kill them, but yet just moments later they were bucking me they
weren't going to lie for me. What’s up with that?](3 APP 79:27-30).
[A]fter [Charla] left ¦ me, my mom and [K]od[i] went to my mom’s job [probably Jason’s] ... (3 APP 80:7-8). She told me to come into the living room and tell her everything I knew. I told her to call [Charla] and tell her that I lied and needed to come talk to her [that they had their story straight] (3 APP 80:15-17).
HARTMANN: At some point did Detective [Charla] Smith come and see you? MINDY: Yes. HARTMANN: Did you recognize the lady detective that was sitting back there? MINDY: Yes. HARTMANN: Not here in the courtroom but in the back where you have been waiting? MINDY: Yes. HARTMANN: Is that the detective that came and visited with you? MINDY: Yes. HARTMANN: At some point does your mom find out that you know more than what you are telling? MINDY: Yes. HARTMANN: And do you all get back in touch with [Charla] and let him know that you have additional information? MINDY: Yes. HARTMANN: And does [Charla] come and take a statement from you? MINDY: Yes (3 RR 174:18-175:14).
WESTFALL: And he thought your mother [Jerri? Weird. Now that really should have made her think something was up with Mindy's story right then and there, if she was of the mind Mindy didn't know about the shooting] actually wanted to talk to him? MINDY: Yes. WESTFALL: Which was not true. MINDY: No (3 RR 182:20-183:6).
I told him I wasn’t going to lie, “they aren’t stupid they know we know you” [On the ball, ain’t she?] (3 APP 83:15).
Then [Charla] came to [Mindy’s] house. She pretended [oh ¦ she didn’t lie, you mean they weren't ready/organized to come forward yet?] she did not know anything about the shooting. Then [Bart] called and [Mindy]’s mother [Jerri] picked up the phone and overheard the conversation and realized that [Mindy] had far more knowledge of the offense than she had admitted. She then called this detective [Charla] to tell me that [they had their story straight were ready to go forward were all on the same page] the boys [Jason, Bart, & Daniel] had confessed to [Mindy & Tarah][funny how this morphed into just me](3 APP 23:22-27).
Bart called right after the detective [Charla] left. Mom [Jerri] told him I couldn’t talk because she was talking to me [interjecting herself into the mix like the drama queen she (Jerri) was]. He asked about what. She told him nothing, that she would talk to him later, after she hung the phone up I told her [Jerri] that it was going to make it look bad [what, like she was telling (snitching) on me? As far as Jerri supposedly knew, remember, Mindy didn't know anything to tell on me for, for me to become suspicious about] because I had talked to him about 4 times that day about Tara[h] and what we were going to do for that night [What is there to become suspicious about if all we were talking about was what Mindy & Tarah were doing that night?]. I called him back and asked him what he wanted. He asked me what I was talking to my mom about and I told him what I was going to do that night. [What must Jerri have thought about me supposedly wanting to talk to her, or me thinking she wanted to talk to me? Surely she doubted her daughter's story she just told the police, i.e., if she didn't already know Mindy knew] He asked me where Tara[h] was and I told him she was out to eat with her boyfriend [Lucas Tucker]3 APP 79:41-80:2).
HARTMANN: At some point, did [Charla] come and see you? MINDY: Yes. HARTMANN: Did you recognize the lady detective [Charla] that was sitting back there? MINDY: Yes¦. Is that the same detective that came and visited you? MINDY: Yes. [What, they had to have her [Charla] circling about like a vulture to keep them in line to keep their story straight to get their conviction?] HARTMANN: At some point does your mom [Jerri] find out that you know more than what you are telling? [See Subchapter 26.D.28.] MINDY: Yes. HARTMANN: And do you-all get back in touch with [Charla] and let her know that you have additional information? MINDY: Yes. HARTMANN: And does [Charla] come and take a statement from you? MINDY: Yes (3 RR 174:18-23, & 175:2-14).
Bart is like constantly calling us [What?!]. We didn’t want to answer the phone but we finally did because we didn’t want him to get suspicious so I was talking to him and trying to act normal but I really couldn’t. I tried to act like I didn’t know what was going on and I didn't know he was getting turned in [Not like they were plotting against me, right?]. He kept asking if we had heard anything else (3 APP 83:38-42).
FORAN: Okay. Were -- did you become concerned that people would know that you knew something about it? TARAH: Yeah. We knew they knew who we were [on the ball, weren’t they?] FORAN: Did you talk to Bart later that day about what had happened? TARAH: Yes. FORAN: And when you talked to Bart, did he talk to you about what to say if people asked you? TARAH: Yes [oh! It was Bart, not Jason, Jerri, Mindy, etc.]. FORAN: What did he tell you? TARAH: Yes. FORAN: Did he also tell you to lie? TARAH: Yes. FORAN: Did he also tell you how to tell the story? TARAH: He just said not to say anything. FORAN: He didn't tell you to use three fake names for him and Daniel and Jason? TARAH: I don’t remember that. FORAN: Do you remember him telling you that? TARAH: Uh-huh. [Whose story is this, any way?] FORAN: Did that upset you that he wanted you to lie? TARAH: It put me in an awkward position [who was putting who in an awkward position, me, or Foran?] FORAN: Did you later meet with [Charla] and talk to her? TARAH: Yes (3 RR 196:17-197:16).
Charla with Carr: [Mindy’s] ¦ mother [Jerri] called me and said she had overheard a phone conversation between Mindy and [Bart] and had discovered that [Mindy] and [T]ara[h] ¦ were told by [Bart] about the shooting within an hour of the shooting (3 APP 102:K).
On 022402 at 0006 hrs., I [Shipp] was on a special detail attempting to locate [Bart] on a crim attempt capital murder warrant that was briefed to us from Det. [Charla] on 022302 (3 APP 14:64-15:6).
Cor[e]y gets a courtesy call from [Charla] around 4:00 a.m. [2-24-02] (because he is a fireman [that’s her reason? Yeah, right]) to tell him that Bart had been arrested and for what. They were in shock (SHCR 120, 2d full ¶). [Charla appears to have been trying to feel them out which way to narrate her arresting-me-story; whether: (1) they were going to raise a fuss whether they turned me
in, or (2) she could say they told them where I was (which way to go in her narratives).]
[Fineman] made contact with the driver of blk 2dr vehicle that pulled up to the same location as [Bart's truck was at] and left the area when they noticed several more police units in the area [fudged the facts just a bit]. [Fineman] determined that [Bart] was not in the vehicle [what, they just go around violating people’s fourth amendment rights?]. The driver [Brett] identified which house all the vehicles in the street were going to as 1532 Eastview St [they either had to be some of the most gullible, naive and reckless cops on the face of the earth, or they knew this was Brett. Their informant who called them where Bart was; what if this some random person they portray here was mistaken or lying and they ran up in the wrong house and killed somebody? It was unheard of back then, right? But surely they wouldn’t have done that then, right? Not then!](3 APP 15:10-15).
As contact was being made in the front, [Fineman] and myself [Shipp] heard someone opening a back window and started climbing outside of the residence. I had a color photograph of [Bart][like, what, in his hand?] And [Fineman] turned his flashlight onto the person [what, because he had the colored photograph in his hand & couldn’t use his flashlight]. I positively identify the person attempting to leave the residence as [Bart][what, by holding up the photo and doing a quick side-by-side comparison? Yeah, right!] We attempted to take [Bart] into custody but he reentered the house and closed the window [what? So now they had added reason for entering the house without a warrant, i.e., they were in "hot pursuit," (United States v. Santana, 427 U.S. 38, 43 (1976).)in case Charla’s warrant hadn't been issued yet](3 APP 15:26-32)
Hanlon and [Savoy] then made entry from the front door [hot pursuit]. [Savoy] recognized [Bart] coming from a backroom and ordered him to lay on the ground and place his hands where they could be seen [at least they were all trying to get on the same page](3 APP 15:34-35).
Savoy ¦ ordered [Bart] to lay on the ground and place his hands where they could be seen. [Bart] slowly bent over and began to reach down with his left hand towards an area that was not easily viewed by [Savoy]. Because [Bart] had a felony warrant for crim attempt capital murder and was not leaving his hands in plain view, and there were 3 other males in the room [Savoy] used open hand control to place [Bart] on the ground and secured him with handcuffs [there! nice, neat, & cleaned up!][Yeah, right! We know this was unheard of then without the help of social media, but if this really did happen, I would have taken two or more to my center mass. A much more likely scenario is Savoy couldn’t see what, if anything, was in my hands behind my head when he ordered me off the couch & on my knees with my hands behind my head](3 APP 15:34-41).
(Note: the premise here is two. According to Charla, Andy apparently got out of the hospital before Mike, before she had the chance to put together the photospread, but Andy's injuries were 2.33 (7/3rds) times worse than Mike's. It's no likely, therefore):
On 2-23-02, [Andy] came to the detective’s office and did provide a deposition (3 APP 16:61-62).
The doctor told me that I have 5 through and through wounds and 2 rounds remaining in my arm. They said it would cause more damage to try and remove them (3 APP 64:23-24).
ANDY: I was shot in my right arm right up here. FORAN: How many times? ANDY: Five in and out bullet holes. I have a total of 14 bullet holes in and out, and I still have two bullets in my arm until about around the end of the summer (3 RR 108:9-13).
[Mike] called and had just been released from Harris hospital
[after Andy? If so, how was that? Andy’s wounds were substantially worse 2.3 or 7/3rd times worse, to be exact. Is that why Charla narrated Andy getting out first, without explicitly having to say who got out first so she wouldn't get caught up in a lie, but yet still give the appearance?]
I put together a photo spread containing [Bart] in position 4 with 5 similar males
[to the point & agenda driven, ain’t she].
[Mike] came to the office and viewed the photo spread and immediately and without hesitation pointed to [Bart] and said, “that’s him, that’s him. I asked what he me[an]t and he said, “that’s the guy that shot me.”
[Without any help or input, etc., From Charla? Yeah right! Double blind? Not hardly].
I then showed him a photo spread containing [Jason] in position #3 with 5 other similar males. [Mike] was unable to identify [Jason].
[what, was she too worried about substantiating her warrant with Bart, i.e., Mike's identification that she forgot to ask Mike to identify Jason? Is that why his photo spread doesn't exist (3 APP 68:1)? Because it was never made in the first place? Was she too worried about going back and trying to ask Mike to identify Jason for the same date? Did it matter? Would anybody ever really find out? Was it necessary?].
I made up a photo spread containing [Bart] and 5 other subjects and met with [Mike] at the detective office. He immediately [(emphasis added)] pointed to [Bart] and said, “that’s him, that’s him.” I asked him what [Bart] had done and he said, “that’s the guy that shot me.”
[How many of these must she have done? It all must have become pretty routine to her]
He was unable to identify [Jason] in a photo spread
[Ah, darn! Too bad for her he wasn't able to, right?]
On 2-23-02, I met with [Charla & Hanlon] at the detective office and did positively identify the man who shot me. I was unable to identify the one who punched me in the mouth.
[Dated 2/23/02 & Notarized & signed by Donald T. Hanlon, no less; this paragraph looks tacked on to or added to the end of Mike’s affidavit, and what? Charla couldn’t find anybody else she trusted enough to “vouch” for her warrant less arrest she was lying about and covering up? As shown below (See Ch.35, subch. D., ¶ 289? below), she should’ve selected somebody more credible to lie for her].
[The only thing missing or out of place in this sequence of events is
Mikes at 7:30 p.m. on 2/23/02 (3 APP 67), but Charla had Hanlon vouch (swear) it was on 2-23-02 (3 APP 66:31), not 2-24-02 (after I was arrested, like everybody else). But surely Charla
wouldn't arrest me without a warrant, even if she did believe all those awful things Mindy and Jerri were saying about me and their lives being in imminent danger, right?]:
Charla with Catalano: [Mike] was released from the hospital and did come to the detective office and view a photo spread of [Bart] in position #4 and 5 similar males. He did immediately and without hesitation point to [Bart] and say, “that’s him, that’s him. That’s the guy that shot me.” He was unable to identify [Jason](3 APP 74:19).
Charla with Williamson: [Mike] did have 3 gunshot wounds, two his elbow [in-&-out] and he did positively identify [Bart] as the person who shot him. He was unable to identify [Jason](3 APP 97:20).
Charla with Carr: I did put together a photo spread containing [Bart] and 5 similar males and show it to [Mike]. He immediately pointed to [Bart] and said, “that’s him, that’s him. That is the guy that shot me (3 APP 102:4.J)” [Yeah, right! Why did he identify a blond guy in court (3 RR 55:6)(See Ch. 26, subch. A, ¶ 197, above)?].
WESTFALL: Do you remember exactly what you told the police? MIKE: I have talked to the police several times. What time would you be referring to? (3 RR 87:20-23).
HARTMANN: What are your specific duties with the Fort Worth Police Department [FWPD]? CHARLA: I am presently assigned to the violent personal crime section, sexual assault division [the arm-pit of the division!]. HARTMANN: Back in February of this year, were you assigned to that same unit or a different unit? CHARLA: I was assigned to the south criminal investigations division. HARTMANN: Are you currently a certified peace officer [emphasis added][what, like she may not be later on? I.e. for arresting me without a warrant, then falsifying one to substantiate her warrant less arrest?] CHARLA: I am. HARTMANN: When you were assigned to the south criminal investigation division back in February what were your duties with that particular division? CHARLA: Investigating most of the crime happening in the south with exception of homicide, sexual assault or crimes against children (3 RR 148:12-149:2)¦. Is it normal procedure for you to try to find out who the owner of that truck or vehicle is before you go and seize it and try to search it [because she obviously didn’t]? CHARLA: Yes (3 RR 150:22-25)¦. HARTMANN: I will show you State’s Exhibit No. 37 and ask if you recognize the vehicle depicted. CHARLA: Yes. HARTMANN: How do you recognize this vehicle? CHARLA: The license plate on the back (3 RR 151:9-16)[because Hanlon pulled up my ticket file and got my LPN (3 APP 17:58) so that he & six other FWPD ofc. could comb the streets of the city of Fort Worth until they found it (3 APP 15:6), even if I was in Mexico by then, according to Mindy and Jerri? (See Ch. 26, subch. E.2., ¶ 230, FN 241, above)][That’s how they found me?! A license plate number?! Yeah right.]
I [Charla] went to the Crowley Police Department [CPD][what, after she left Mindy’s that first time? Yeah right] and met with the dispatcher Chris Lachance [used to pull me over on my go-cart all the time for riding it on the street]. I asked him if he was familiar with B[art] and [Jason] and he said he had heard the names. A Sgt. [Richard Lee Chapman, badge #3034] came out and stated that they dealt with those subjects quite a few times and directed Lachance to provide me with their info. He also advised that the truck [Bart] drove would be a Chevrolet in a kind of silver color that depending on how the light hit it could look gold [pewter gray]. He then took me out and showed me his truck of the same [make, model, &] color [not that unique after all, huh? (See below)](3 APP 17:49-57).
Charla with Catalano: [I] did go[] to Crowley Police [Dept.] and did obtain dates of birth on [Bart] and [Jason] and with that was able to obtain mugshots of both and make photospreads (3 APP 73:18).
Charla with Williamson: [I] did go to Crowley Police Dept. and did obtain dates of birth and vehicle information and with that was able to obtain mugshots of both and make photospreads [and what, with the vehicle description locate me in a big city I may not have even been (i.e., Mexico)?](3 APP 97:18).
Charla with Williamson: [I] did go to Crowley Police Dept. and did obtain ¦ vehicle information [on Bart’s truck](3 APP 97:19).
Charla with Carr: I located the truck description and license plate in the ticket file [thought Hanlon did?].... I ¦ notified the crime response team [CRT] who located the truck on Eastview in south Fort Worth¦. The truck was impounded [by Ofc. Hysmith] and taken to the Fort Worth Auto Pound at 1301 E. Northside Dr. where it has been locked and secured (3 APP 102:4.J).
[Bush] ¦ observed [Bart’s truck] parked in the street in front of 1532 Eastview St. We knew that the conv veh [Bart’s truck] was believed to be driven by [Bart][no mention of a LPN comparison here](3 APP 15:6-8).
ADA Kim Minick (my attorney’s (Westfall, Greg) co-counsels (Cheyenne Minick’s) wife!) with Tarrant County District Judge Wisch: On 2-24-02, Officers [Bush] located [Bart’s truck] parked in front of 1532 Eastview Street, Fort Worth, Tarrant County, Texas (3 APP 211, 1st full
¶).
I notified Sgt. [Donald T.] Hanlon of the szt [south zero tolerance] that I had the suspects [Jason & Bart] tentatively identified. By the time I reached the detective office sgt. Hanlon had pulled up the ticket file [yeah, probably after they arrested me] and had a plate on the suspect vehicle [Bart’s truck][yeah right][what about Jason’s plate number (his driving record was just as bad as it is now (5 APP 48 & 51)†!? They weren’t worried about trying to find him too or what?](3 APP 17:57-59).
I notified Sgt. [Donald T.] Hanlon of the szt [south zero tolerance] that I had the suspects [Jason & Bart] tentatively identified. By the time I reached the detective office sgt. Hanlon had pulled up the ticket file and had a plate on the suspect vehicle [Bart’s truck](3 APP 17:57-59).
On 022402 at 0006 hrs., I [Shipp] was on a special detail attempting to locate [Bart] on a crim attempt capital murder warrant that was briefed to us from Det. [Charla] on 022302 (3 APP 14:64-15:6).
On 022402 at 0006 hrs., I [Shipp] was on a special detail attempting to locate [Bart] on a crim attempt capital murder warrant that was briefed to us from Det. [Charla] on 022302 (3 APP 14:64-15:6).
I notified Sgt. [Donald T.] Hanlon of the szt [south zero tolerance] that I had the suspects [Jason & Bart] tentatively identified. By the time I reached the detective office sgt. Hanlon had pulled up the ticket file and had a plate on the suspect vehicle [Bart’s truck](3 APP 17:57-59).
HARTMAN: Is it normal procedure for you to try to find out who the owner of that truck or vehicle is before you go and seize it and try to search it? CHARLA: Yes (3 RR 150:22-25).
On 2-24-02, I was notified that [Bart] had been arrested and wished to speak with me. I met with [Bart] and did read him the Miranda Warning and asked him to sign it. He asked what it was about and I told him two people had been injured on Thursday. He said that he was at home all day Thursday and his parents would vouch for that [She must’ve determined they were on my side, not hers/theirs]. I then asked him to sign the Miranda form again and he said he wanted to call his lawyer to ask if he should sign. I told him that the interview was over. I started to walk out and he said he wanted to talk to me. I again told him to sign the Miranda form and he said he wanted to ask his lawyer if he should. I terminated the interview (3 APP 22:17-26). I was quite clear the first time she asked me about Mike and Andy to talk to my lawyer that there was no room for uncertainty. She didn't ask again. Though here she attempted to make me out to be a babbling fool. Seems she's used to getting her way and being in
control.
[Bart] told [Hanlon] that the $100,000 bond was not a problem because [Bart] had a $50,000 trust fund [it was $100,000 trust fund, but who was counting, right] and he would be out in no time [I must have been clairvoyant or a fortune teller because this was exactly what my bond turned out to be.](3 APP 22:32-33).
Mindy with Charla: Before we left we agreed that we weren't going to tell Bart what we were doing because we didn’t know what Bart would do if he knew what we were going to do. He had already killed two innocent people, why wouldn’t he go after the witnesses [They were determined to set me out to pasture, right? This sure enough was bound to set my bond so high I couldn't get out and/or mess up their plan to foist this entire mess upon my shoulders].... I was told by Jason’s girlfriend [Jennifer Boston] that Jason saw Bart standing outside Jason’s house and Jason was scared and he woke his dad [Larry, Sr.] up [though they didn't call the cops and report a false crime; smart]. Jason was scared and stayed up all night, worried that Bart was going to come after him. Jason thought that Bart knew something was up because they had made plans to go to Jason’s brother’s [Jeremy’s] house and Jason never called Bart back [false, and I thought I was going to Mexico, not Jason’s brother’s, right?](3 APP 79:27-30).
Tarah with Westfall: WESTFALL: What is it about Bart that makes you want to be friends with him? TARAH: Because he was really nice. He was a sweet guy. WESTFALL: What else? [Couldn't have been the money, right?] TARAH: I was friends with him because he was sweet and real -- there really isn’t any other reason why I became friends with him [Yeah, right!](3 RR 202:17-23).
Paula with Minick: MINICK: Was the friends that you did see and the circumstances that you saw him with his friends, would you say that -- let me just ask you this. How was he treated by them? PAULA: I can remember one time Bart was out working on -- he was making a go-kart out of a lawn mower or something. They were making fun of him. Little rich boy, you don’t need this. You can get whatever you want and you are out here messing with a go-cart. But that's what he liked to do. Bart liked working with his hands (4 RR 146:22-25).
Melissa with Westfall: WESTFALL: Tell me, how did Bart’s friends treat him generally? MISSY: Manipulative. I have heard Jason sit out in my front yard and -- HARTMANN: Objection to hearsay. GILL: Overruled. [Funny Hartmann objecting here to hearsay. Most of hers was (Mindy & Tarah) & what was hearsay about this?] MISSY: I was standing there. WESTFALL: Would his friends kind of openly taunt him. MISSY: They called him retard, and they would make fun of him because he didn't get things. And (inaudible)(4 RR 51:11-21). WESTFALL: How old was Bart when [Bart, Sr.] was killed -- how old was Bart, Jr. when Bart Sr. was killed? MISSY: He had turned two like two weeks before he died. WESTFALL: How was Bart, Sr. killed? MISSY: On a motorcycle accident (4 RR 12:5-9). WESTFALL: Bart’s grandmother [Judy Gaines] on his father’s side both have committed suicide? MISSY: Yes. WESTFALL: When did his grand[father] commit suicide? MISSY: When [Bart] was about 13 [14 almost 15] and right before [about 5 years after](4 RR 31:15-20). WESTFALL: His ¦ grandparents both committed suicide. HARTMANN: Excuse me. Your Honor. I’m going to object at this point to an improper opening statement. GILL: Overruled (3 RR 14:9-15).
Melissa with Hartmann: HARTMANN: And you mentioned Bart had a trust fund? Why was that created? MISSY: The first half of it was from his father dying, and the second half of it was when his [grand]father committed suicide. HARTMANN: That was the sum total of the money that ended up in that trust fund? MISSY: Yes (4 RR 93:9-17).
Charla with Magistrate Catalano: [Bart] did inform officers that $100,000 bond was not going to stop him from getting out because he has money in a trust fund that will get him out (3 APP 74:27).
Recommended bond $350,000[][hence they effectively had me out to pasture, and hopefully, as far as they were evidently concerned, for good](3 APP 20:29). Judge Catalano did sign the warrant and assess a bond of $350,000 due to the fact that [Bart] was ¦ bragging that $100,000 would not keep him in (3 APP 24:25-27).
Recommended bond $350,000[][hence they effectively had me out to pasture, and hopefully, as far as they were evidently concerned, for good](3 APP 20:29). Judge Catalano did sign the warrant and assess a bond of $350,000 due to the fact that [Bart] was ¦ bragging that $100,000 would not keep him in (3 APP 24:25-27).
After everyone was secured and the house was secured, [Bush] observed a Crown Royal bag lying on a table in the living room. Due to his previous experience, [Bush] asked [Coker] whose bag it was. Coker replied it was [Bart’s][darn!]. [Fineman] then asked if [Coker] would mind if we looked in the bag. [Fineman] then opened the bag and found evidence item 1.
A pair of metal pliers w/ discolored tip, a brown leather wallet containing numerous clear ziplock baggies, and Altoids tin [box] containing a clear bag with a white crystalline powder inside, a paper temporary permit ¦ in the name of susp4 Coker [darn! Lucky for me; to bad they didn’t know Coker didn’t have anything to do with the shooting or else they would’ve probably tried to pin this on me too]
On 02/25/02 Det Hederer working narcotic CIU was assigned the narcotic portion of this case for follow up investigation. [On] 03/25/02 Det Hederer received lab analysis of the drug evidence from criminalist Stacie Smith on lab number 02A0560 which revealed: drug exhibit #1 no controlled substance [even the FWPDCL evidently does and says what they want despite the facts, awesome! The whole damn agency (FWPD) is crooked. But who was going to contest that, right? Surely not Coker. They were essentially letting him make it. It’s a win for everybody].... No charges against [Coker] will be filed as there was no controlled substance found [in fact, the chances of a conviction here were pretty slim because of the illegal search and seizure. But why not just say that, right?](3 APP 39:53-57, & 39:63-64).
[FWPDCL].
EXAMINATION REPORT: Lab NO.: 02-A-0560.
AGENCY NO.: 02132266.
DATE: 3-1-02.
VICTIM/COMPLAINT/PLAINTIFF: State of Texas.
DEFENDANT(S): John Coker.
TYPE CASE: Controlled Substance.
TO: Fort Worth Police Department.
RE: FWPD Laboratory Number 0201071.
LIST OF EVIDENCE:
Received 2-25-02, 1:30 p.m. at FCS Lab from R. Adkins: Sealed paper sack containing cloth bag with:
1. Metal tin [box] containing plastic bag of powder.
2. Zipper pouch containing several empty plastic bags.
12-S-0162-02. Consent to search. List of articles taken as evidence: ... Small jar w/white powder residue.... (3 APP 109). See also (3 APP 110) (Charla’s property record (items seized from Andy’s car)).
Inside the car I found a ... small jar with what looked to be a white powdery residue¦. I met with Judge Reed who reviewed the ¦ consent return and did sign off on both. I then went to ID and had numbers assigned. The search warrant was given #12-2-0162-02 (3 APP 32:13, 32:16-19 & 32:21-24).
LIST OF EVIDENCE. Received 3-1-02, 10:16 a.m. at FCS Lab from R. Adkins. Sealed envelope containing:
¦
NO CONTROLLED SUBSTANCE WERE IDENTIFIED [Who in their right mind drives around with a clear glass vial with white powdery stuff in it that isn’t a controlled substance?](3 APP 122).
Det Hederer also received lab number 02A0660 from criminalist Max Courtney which revealed:
Drug exhibit: #1. 02g marijuana.
Drug exhibit: #4a .19g marijuana.
Drug exhibit: #4b .66g marijuana.
Det Hederer will file no charges ¦ on the marijuana [in Andy’ car] as it cannot be determined whose it is [guess he suffered enough, right? But why not just say that?](3 APP 39:58-40:4).
WESTFALL: When did you break up from Bart the last time? TIFFANI: The very beginning of February, around February 2 (4 RR 100:23-25). I also pointed out where Paula’s birthday was February 2. Where Ricky got out of jail February 2 (5 APP 5). And where my mom got her GED February 2 (4 APP 6).
Westfall said that Tiffani’s testimony was probably the best out of all my witnesses; now I know why. Through her I had him by the balls.
TIFFANI: We didn’t talk for about -- probably about a week, and then we saw each other in church and we talked then¦. And it was the Sunday before this incident [the incident on the phone or the incident with Mike and Andy]? TIFFANI: Yes (4 RR 101:5-7 & 11-12).
2-17-02 Bart goes to church and runs into Tiffani and Paula (SHCR 117).
WESTFALL: When was the next time you spoke with Bart? TIFFANI: That was Sunday, and I talked to him the following Thursday. WESTFALL: February 21? TIFFANI: Yes? [did she sound unsure; was the responding in like manner a question-for-a-question? Either way the sequence skips a week](4 RR 103:8-12).
2-21-02 Thursday afternoon (approx. 3:00 pm) after Missy calls Tiffani and tells her she is worried about Bart, Tiffani[i] calls Bart on his cell phone (SHCR 118).
2-14-02 Bart goes on a date with Crystal -- photograph [6 RR DX 17] -- Bart is nervous and talking a lot and talking fast, but not loudly, and was jittery. Missy thought he was just nervous about meeting this new girl (SHCR 115).
WESTFALL: That was Thursday, the 21st [pigeonholed her testimony] in the afternoon. When was the next time you saw or heard from Bart? TIFFANI: Saturday. WESTFALL: What time? TIFFANI: About 3:00 -- 3:00 or 4:00 [in the morning].... WESTFALL: Who was he with? TIFFANI: Daniel (4 RR 105:18-25 + 106:11-12).
2-23-02 Saturday¦. Approx. 3:30am: Bart shows up at Tiffan[i]’s mother’s house ¦ with Daniel¦. (SHCR 119).
MINICK: On Sunday, February 17, did you attend church? PAULA: Yes¦. When you were in church, was Bart there that day? PAULA: He did come to church that day¦. It was myself, my mother [Judy], Tiffan[i] and then Bart (4 RR 147:21-22, 147:25-148:1-2, + 148:5-6).
I believe [Paula] was one of [Minick]’s witnesses. Therefore, I would not have prepared her much at all to testify¦. As I recall her testimony was pretty good, so the amount of preparation she had must have been about right¦. I asked [Minick] if he wanted to try this case with me and he said yes. We worked together quite a bit to get the case ready for trial, but his involvement was limited to directing a couple of witnesses at trial [he means Paula’s?] (SHCR 94, & 99).
I directed the presentation of [Paula] in this case. Prior to the presentation of her testimony I went over the elements of the testimony that she was going to provide, and she was well aware of the area which were to be covered when she testified (SHCR 189-90).
2-15-02 Bart goes to the bank and consolidates his loans¦. [Missy] believes Bart went out that night. He came home and the next time Missy saw him was in the morning (SHCR 116). WESTFALL: That’s a Thursday. February 14 is a Thursday. The next day Friday, did you go with Bart to the bank? MISSY: Yes (4 RR 50:1-3).
Missy with Westfall: 2-16-02 Saturday ¦ Bart is anxious and is in an endless loop about Tiffan[i].... Finally he goes out. He leaves in the evening. He didn’t say what he was going to do and they didn’t ask¦. He came home and slept. Cor[e]y saw his truck (SHCR 116).
Bart is home the morning of 2-23-02 when his parents get up¦. Bart ¦ comes out with Daniel, who had been sleeping on Bart’s floor. He is squeezing Daniel really tight with his arm around him (like he was a fellow football player or something [SHCR 151]) and saying “You remember my friend Daniel, don’t you? They had never seen Daniel in their lives¦. He said he had to take Daniel home (SHCR 119-20).
2-17-02 Bart goes to church and runs into Tiffan[i] and Paula¦. Bart comes home from church¦. Missy noticed the voice was going up, he was starting to talk faster and louder (SHCR 117).
WESTFALL: The next day you saw him, you saw him the following Sunday? MISSY: Yes. WESTFALL: And he went to church in the morning but you weren’t there? MISSY: Right (4 RR 55:18-23).
GILL: We have three deputy sheriffs assigned as bailiffs. This is Ms. Dimple Junior over here to your right [beside and in front of the jury]. Mr. James Thomas is in the back of the courtroom [manning the door]. Mr. Dave Darusha is directly across from you [manning me]. They are the officers which will have you in charge (2 RR 140:1-6)(See Ch.18, FN 55).
Hartmann with Westfall: Jheen ¦ was able to identify [me] out of a photo spread but the identification was qualified by the following statements, “it’s been a long time ago, this one keeps jumping out at me. I’m pretty sure he’s the one.” [Right! Like with Hartmann, no help or input by either Hubbard or Deleon; it was not a blind or double blind study](1 CR 70:5)(2 CR 25:5).
See Texas Code of Criminal Procedure Art. 38.20. Added by Acts 2011, 82nd Leg., R.S., Ch. 219 (H.B. 215), Sec. 1, eff. September 1, 2011. Amended by: Acts 2017, 85th Leg., R.S., Ch. 686 (H.B. 34), Sec. 4, eff. September 1, 2017. Acts 2017, 85th Leg., R.S., Ch. 686 (H.B. 34), Sec. 5, eff. September 1, 2017. Added by Acts 2011, 82nd Leg., R.S., Ch. 219 (H.B. 215), Sec. 1, eff. September 1, 2011. Amended by: Acts 2017, 85th Leg., R.S., Ch. 686 (H.B. 34), Sec. 4, eff. September 1, 2017. Acts 2017, 85th Leg., R.S., Ch. 686 (H.B. 34), Sec. 5, eff. September 1, 2017.
:
B. Selecting the Best Identification Method ¦
...
4. Because witnesses may be influenced, however unintentionally, by cues from the person administering the procedure, a blind administrator should be used. This can be achieved through the use of a blind procedure or a blinded photo array procedure (e.g. the folder shuffle method)
.¦
C. Selecting Fillers All persons in the photo array or live lineup should be of the same sex and race and should be reasonably similar in age, height, weight, and general appearance. Ideally, the characteristics of the filler should be consistent with the description of the perpetrator provided by the witness(es). Where there is a limited or inadequate description of the perpetrator provided by the witness(es), where the description of the perpetrator differs significantly from the appearance of the suspect, where a witness has provided a highly detailed description, or where the witness’s description of the perpetrator or the suspect has a highly distinctive feature, fillers should be chosen so that no person stands out in the live lineup or photo array.
D. Explaining that the Perpetrator May or May Not Be Present Because witnesses may be under pressure to identify a suspect, they should be informed that the suspect may or may not be present in a live lineup or photo array and that the person presented in a show-up may or may not be the perpetrator.
E. Explaining that the Investigation will Continue The administrator should also explain to the witness that the investigation will continue, regardless of whether an identification is made, as another way of alleviating pressure on the witness to identify a suspect. F. Witness Contamination
...
4 Precautions must be taken to ensure that witnesses do not encounter suspects or fillers at any time before or after the identification procedure. Avoid multiple identification procedures in which the same witness views the same suspect more than once. When showing a different suspect to the same witness, do not reuse the same fillers from a previous live lineup or photo array shown to that witness. Witnesses should not be allowed to confer with each other before, during, or after the identification procedure. Ensure that no one who knows the suspect’s identity is present during live lineup or photo array procedure. In some live lineups, exceptions must be made to allow for the presence of defense counsel.
...
G. Documenting the Procedure In order to strengthen the evidential value of the identification procedure, it should be documented in full. Video documentation is the preferred method. Audio recording is the preferred alternative. If neither method is employed, then the reason for not video or audio recording should be documented.
o. Contact Among Witnesses To the extent possible, prevent witnesses from conferring with each other before, during, and after the photo array procedure.
C. Sample Standard Operating Procedures for Sequential, Blinded Photo Array
¦
WESTFALL: And this is a section of the highway, so I imagine there weren’t street lights? JHEEN: I don’t think there were, I don’t remember [eager little thing, to be accepted or believed (please), ain’t she; she knew good-&-well, lest it was a testament toward her memory. Was it?]. WESTFALL: Did you know there was another person in the truck? JHEEN: I didn’t realize at first, no [funny she said nothing ever prior to about a second person at the scene; must have been some of that coaching Hartmann was talking about]. WESTFALL: So whoever was in the truck that was a passenger didn’t get out and walk around or anything? JHEEN: No, they didn’t get out of the truck. WESTFALL: And where were you sitting in your car? JHEEN: I was in the passenger seat. WESTFALL: In the front seat? JHEEN: Yes (3 RR 236:7-22).
:I guess they thought they could make it look like Westfall (Greg) was somewhat effective, inasmuch as, although I didn't get the two ten year sentences Westfall was asking, at least I got less than the 40-years the state (Hartmann) was supposedly asking; to wit:
HARTMANN: Set the number of years, whatever’s appropriate, and maybe, maybe in a particular case 30 years [adjusted to off-set the effects of parole, of course] is appropriate. (2 RR 61:24-62:1).
HARTMANN: I am going to ask you to start at 40 because that’s what the case deserves (5 RR 19:15-16).
V.A.C.C.C.P. ART. 35.16 (2006) N.105 (Crime Experience, Bias or Prejudice):
Burton v. State, 805 S.W.2d 564, 568 (Tex. App.--Dallas 1992):
Trial court was justified in dismissing prospective juror for cause based on his confusion and inability to understand legal issues concerning affirmative defense of involuntary intoxication, as well as on fact that he expressed views concerning effects of intoxication that were antagonistic to State's theory of case. Vernon's Ann.Texas C.C.P. art. 35.16(a), (a), par. 5.
Gonzales’ trial counsel was also ineffective for failing to strike a juror whose own experience with the issue they were impaneled to decide was similar or nearly identical, even though they affirmatively asserted otherwise.
HARTMANN: Ms. Dean, how do you feel about that? DEAN: As different kinds of intoxication? HARTMANN: How do you feel about the fact that the law says that if you voluntarily drink alcohol, you know, get high on heroin, or let’s say you’re prescribed something legally, you have a legal prescription for--gosh, I can’t think of something that you might get legally prescribed that might make you drowsy and you get in a car. DEAN: Zoloft. HARTMANN: Zoloft, okay. Completely legal drug if you get it through a prescription, okay? I’m asking you how you feel about the law that says that you either voluntarily getting intoxicated through alcohol or you get high on street drugs or you take Zoloft and it affects you in such a manner that that’s not an excuse or reason for criminal behavior. DEAN: Right. You’re still responsible for your actions. HARTMANN: Does that make sense to you? DEAN: Yes. HARTMANN: Why? Why do you think the law is that way? DEAN: Because once again, we’re responsible for our actions. No matter what we take, we’re still responsible for our actions. HARTMANN: If it’s voluntary. DEAN: Right (2 RR 32:18-33:22).
HARTMANN: Blauvelt.... How do you feel about the law that says that you can’t use -- voluntary intoxication, whether it’s alcohol or street drugs or prescription drugs, can’t use that as an excuse. You don’t get off for your criminal behavior. BLAUVELT: I agree. HARTMANN: Okay. Why? BLAUVELT: For the same reason I think that you’re responsible for your actions, and if you injure somebody because of your actions, I think you should be held responsible [period, regardless of the law](2 RR 33:23-34:10).
HARTMANN: And how about you, is it Ms. Mills? MILLS: Yes. HARTMANN: How do you feel about that under the law? MILLS: I believe that a person is responsible for their actions, and ¦ HARTMANN: Is that it? MILLS: And I believe that when they make that decision to take that drink or take that pill or whatever, they’ve made that decision (2 RR 34:11-21).
HARTMANN: Okay. All right. And let's see. I'm going to kind of branch off from that to Mr. Davis, and I'm going to ask you, and I talked a little bit about -- mentioned street drugs and alcohol, and then I guess it was Ms. -- was it Ms. Childers that volunteered Zoloft as a possible, I guess, prescription drug? Let's say somebody is taking some type of medication such as Zoloft for a psychiatric condition, whether it's, I don't know, like an anxiety disorder or depression or any one of the number of disorders and a lot of people in this country have. Do you think -- or let me ask you this. How do you feel about someone with a condition such as that committing criminal behavior? Do you think they should be held responsible for it? DAVIS: when I get up in the morning, I'm responsible for everything that I do during the day, and I don't think that I'm any better or any worse than anyone else, so I would hold everyone else to that same level of responsibility. HARTMANN: okay. Fair enough. And let's see (2 RR 34:24-35:18).
WESTFALL: Mr. Davis? DAVIS: would have to give z equal consideration to all five ranges. I think in different circumstances it goes between voodoo to exactly what the doctor ordered with equal distribution on both sides, and I would say in the center, so somewhat o helpful. WESTFALL: You covered the whole scale. Well, I shouldn't allow you to do that, but if you had to pick one, what would you say? DAVIS: I pick the somewhat helpful with distribution on both sides, both a single answer would be somewhat helpful. (2 RR 102:25-103:12). WESTFALL: Mr. Davis? DAVIS: Logic and reason. (2 RR 128:20-21).
HARTMANN: Mr. Swanson, you’re next. How do you feel along those same lines? SWANSON: I more or less agree with him [Davis].... You know, you’re responsible for what you do, and the way I figure it, you’re really responsible if you’ve got either drugs, alcohol, whatever, you’ve got a weapon and you’ve got a robbery. You’re responsible¦. There’s too many things there [even if you had a lot of help from point A to point B?], you know, to just sit back and look at it and say, “Well, they were drunk or high, and that made them do all this other.” It takes a lot to go through all of that, all three things (2 RR 35:19-36:8).
HARTMANN: And Mr. Mills, basically the same type of question. MILLS: I’m absolutely in agreement. HARTMANN: How do you feel about, I guess, individuals who might have psychiatric conditions, some may be of what I've already mentioned, and there's others out there. How do you feel about those being excuses for any type of criminal behavior? MILLS: It would have to be proved, and that would be something that would be a whole different court case, I would think. HARTMANN: In what respect? MILLS: I don’t know how it would be a defense, really, in the situation as you have spoken to this point. HARTMANN: If I tell you there is no defense in the law having to do with what we’re talking about, there isn’t a defense out there, a legal defense, okay -- MILLS: Then I would agree as we have spoken that you are responsible, things that are taken, stimulants or what have you, shouldn’t be allowed to be the reason why you did what you did (2 RR 36:9-37:7).
HARTMANN: Ms. Lemons, same question? LEMMONS: I definitely think we’re responsible for our own actions, and there should be no excuse at all if they were taking a drug. As far as prescription drugs, you should follow the recommendations (2 RR 39:13-19).
HARTMANN: Mr. Wakefield, same question. WAKEFIELD: I feel the same way he does about it. It’s according if you’ve done it before, if you were under alcohol or prescription pills. It’s according to how many times you’ve done it without getting caught for it before (inaudible)-- HARTMANN: I’m kind of confused with your answer. WAKEFIELD: Well, it’s according if they’ve been caught before doing drugs or doing an offense before. It may be the first time they’ve taken that drug and it did do something to them to do the offense. HARTMANN: So to you it might be important to hear whether or not it’s the first time a person had taken a particular drug, whether it’s a street drug or maybe drunk alcohol? WAKEFIELD: Yes, if they’ve had cases against them before, so no prior history. HARTMANN: How would you feel in a situation where maybe it was that person’s first time? Do you think that that still excuses them from their criminal behavior? WAKEFIELD: No, because I feel if they’ve done it before, they’re held to their actions (2 RR 38:12-39:12).
HARTMANN: Ms. Richardson, any thoughts on your part? RICHARDSON: Well, if there’s a prescription, there’s recommendations on the prescription. You need to follow the instructions. That’s about it. If you chose not to follow those instructions, you’re assuming a risk of your actions bottom line. HARTMANN: Do you think people ought to be able to use as an excuse the fact that they were drunk or the fact that they were depressed? RICHARDSON: Absolutely not. HARTMANN: Or the fact that they shot heroin? RICHARDSON: Absolutely not (2 RR 37:22-38:11).
HARTMANN: Ms. Thomas. THOMAS: There’s no excuse. I don’t think there’s not an excuse for breaking the law. Otherwise anybody could make up an excuse and say, “Well, I was sick” or “The doctor gave me some pills.” The doctor should warn you about these drugs. HARTMANN: Okay. THOMAS: Whether you should get out on the road, whether you should drive. HARTMANN: Okay (2 RR 37:12-21).
WESTFALL: Ms. Chambers, agree or disagree CHAMBERS: I disagree. Just because you say, “yes, I'm an alcoholic” [e.g.,] doesn’t mean he’s going to change. Yes, you admit that you’re an alcoholic, but you still got to show me that you’re going to change, and just because you say yes doesn't mean you’re going to change [what, like 17.5 + years in the penitentiary?](2 RR 94:14-21).
HARTMANN: Mr. Fauble[?] FAUBLE: My brother worked at a convenience store, and he was robbed, and they put a gun to his head, and he said he thought he was going to be dead, but they didn’t shoot him. HARTMANN: Do you think that would be threatened or placed in fear of imminent bodily injury or death? FAUBLE: Yes. HARTMANN: Were -- FAUBLE: I think I would be more towards the State than the Defendant. HARTMANN: Well, let me ask you this. [Bart] wasn’t involved in that situation, was he? FAUBLE: Not that I know of [What?!] HARTMANN: And this was your brother, right? FAUBLE: Uh-huh. HARTMANN; Not you? FAUBLE: Not me. HARTMANN: You don’t have any reason to believe that [Bart] was even involved in that right? FAUBLE: Right¦. HARTMANN: Do you think you could ¦ set aside what happened to your brother as a completely separate incident? FAUBLE: I think so (2 RR 47:15-48:20 & 49:6-12). Virgil v. Dretke,446 F.3d 598, 610 (5th Cir. 2006): Jurors unchallenged statements, or further inquiry thereto because of ignorance of the law, during voir dire that they couldn't be fair and impartial, either toward Virgil or the law, and trial counsel’s failure to use peremptory or for-cause challenge, is ineffective and unprofessional. Virgil’s trial counsel was ineffective for failing to strike Sims, whose mother’s mugging was weighing on him and whose was therefore impartial.
HARTMANN: Ms. Marack. MARACK: Yes. I was held at gunpoint about -- it’s been about five or six years [ago][so what, 1996 or 1997?]. Mine didn’t go to trial because he stole my vehicle, went to San Antonio and held up a couple of banks and they caught him there. I’m fine with this [what!? I’m sure she was!]. I think I can be fair [yeah, right!]. Everything would be fine, but I thought I would let you know [I’m sure you were!][chomping at the bits a bit, wasn’t she?]. HARTMANN: And I know both sides appreciate hearing that [I’m sure you are][so much so that Westfall let her not only end up being on the jury, but the forewoman or person]. Would you be able to set that aside and be fair and impartial to both sides? MARACK: Yes, absolutely [yeah, right][And thus she infiltrated our jury](2 RR 72:7-18).
GILL: Ms. Marack, are you the Foreman of the jury? MARACK: Yes. GILL: Has the jury reached a verdict in each of the two cases? MARACK: Yes, sir (5 RR 20:7-12). GILL: Is each verdict unanimous? MARACK: Yes, sir. GILL: Hand the charge to the bailiff [Ms. Dimple] please. (Pause in the proceedings [Marack hands the charges to Ms. Dimple]). GILL: No. 0836979-A, the State versus Barton Ray Gaines. Verdict Form, No community Supervision. We the jury, having been instructed by the Court to find the Defendant guilty of the offense of aggravated robbery with a deadly weapon as charged in the indictment, so find, and we assessed his punishment at confinement in the Institutional Division of the Texas Department of Criminal Justice for 35 years. And in addition to such confinement, we assess a fine of $10,000, and we do not recommend that community supervision -- that he be placed on community supervision¦.. [Signed] Tina Ann Marack, foreperson¦. Cause No. 0836985-A [Same](5 RR 20:7-21:15)(1 CR 82)(2 CR 37).
GILL: Anything we need to do before we bring the jury out? HARTMANN: Your Honor, on behalf of the State, the Defense has subpoenaed a fair number of records from various doctors and agencies, and I have agreed to waive the 13-day filing notice (4 RR 2:4-9),
:
WESTFALL: What do you do for a living Mr. Gordon? GORDON: I'm the president of the Fort Worth City Credit Union,
WESTFALL: In that capacity, have I subpoenaed you to bring certain records here to court? GORDON: Yes,
WESTFALL: What were the records I asked you to bring? GORDON: You requested copies of all checks written on specific accounts¦,
WESTFALL: Your Honor, the checks that I have asked him to bring are marked for identification as
Defendants No. 18. I request their conditional admission subject to being tied up through later testimony,
HARTMANN: The State would have an objection as to the relevancy. May I approach the bench [worried there may be a check dated the time of the extraneous placing me elsewhere giving me an alibi? Not so sure I was guilty after all, huh?]?
GILL: You may. I am going to conditionally admit Defendants Exhibit 18 subject to relevancy being shown,
HARTMANN: Mr. Gordon, I just have a few questions for you, sir.
You're able to tell the jury that the -- I guess markings put on by your credit union, those markings you can vouch for? GORDON: Yes,
HARTMANN: The accuracy of? GORDON: Yes,
HARTMANN: However, any extraneous writings such as writing put on there by the person who actually wrote the check or writing put on there by the person receiving the check, you
can't vouch for the accuracy of any of that [an attack on the potential alibi she perceived coming down the turnpike]? GORDON: No. Other than the fact that the checks did clear,
HARTMANN: Were you asked to bring a signature card for this particular account. GORDON: No. I was not,
HARTMANN: Is there a signature card for this particular account? GORDON: Yes. HARTMANN: Would you be able to prove that to us? GORDON: Yes [she must want to be darn sure this potential check placing me somewhere other than where Rick was shot was made out and signed by me]
HARTMANN: Now, as far as the checking account went, was he the only person on the signature card? MISSY: His stepfather [Hartmann must have made Missy mad, objecting like she did to every single little thing she said, hence her shortness],
HARTMANN: I’m sorry? MISSY: Cor[e]y Adams, his stepfather,
HARTMANN: Was that a joint account? MISSY: It was his account because it was through the Fort Worth City Credit Union. The member had to sign the car to have an account,
HARTMANN: The person was actually writing the checks on the account was your son? MISSY: Correct,
HARTMANN: You have told the jury that you would frequently fill out checks for your son, correct? MISSY: Correct [Hartmann sniffing around at a potential false alibi; good distraction]
Two days later he’s on the side of the road repeating the same type of scenario, luring three good Samaritans to the side of the road saying he needs help. When they are unable to help him, he takes an assault rifle and he shoots at them. An assault rifle and I guess we had some questions about who it belonged to, and Tiffan[i] ¦ put it up for us. ¶ Last time she saw it Brett ¦ had left it with Bart¦. He was the last one with possession of it and it was retrieved in his vehicle. There was no question about who had it and who was using it because Tara[h] told you who used it that night. He shot a sleeping man in the back of a vehicle because their only crime was to try and be a good Samaritan (5 RR 6:12-25).
HARTMANN: What you do have is the evidence testimony of Mindy and Tara. They are friends of Bart's . They did not want to be in here testifying against him. That makes them all the more credible, folks [Oh, right. So they were incentivized]. One of them, I think it was Tara, was crying. She was so upset about having to be here and tell what her friend was doing [Oh, you mean what they were making them say and lie about?[Oh, right. So they were incentivized]]. And both of those girls were able to tell you he was acting normal [Oh, you mean he didn't think they did anything wrong? But, also, see (4 RR 198:5-17)]. He wasn't twitching. He wasn't fidgeting. He wasn't jumping around [Oh, he knew right from wrong because he didn’t have
Tourette-like symptoms?]. You got a picture of him. You have got a video of him. The guy has the presence of mind to set up a dope deal [Right, even if I did shoot them, which I didn’t, I had a lot of help from Point A to Point B](5 RR 16:18-17:6).
A co-defendant's confession is presumptively unreliable as to the passages detailing the defendant’s conduct or culpability because those passages may well be the product of the codefendant’s desire to shift or spread blame, curry favor, avenge himself, or divert attention to another.
Huizar v. State, 12 S.W.3d 479, 485 (Tex. Crim. App. 2-23-00)(I join the opinion of the majority, reversing the judgment of the court of appeals and remanding this case for analysis under Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App.1985) (opinion on reh'g). I would additionally order the court of appeals to determine whether the failure of trial counsel to ask for the instruction as to the State's burden of proof as to extraneous offenses introduced at the punishment phase of appellant's trial amounts to ineffective assistance of counsel[1] to the extent that appellant is entitled to a new punishment hearing.
Tex. Code of Crim. Proc., Art. 12.01. Felonies. Except as provided in Article 12.03, felony indictments may be presented within these limits, and not afterward:
(1) no limitation:
(A) murder and manslaughter; or
[...]
[...]
(8) three years from the date of the commission of the offense: all other felonies.
Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722. Amended by Acts 1973, 63rd Leg., p. 975, ch. 399, Sec. 2(B), eff. Jan. 1, 1974; Acts 1975, 64th Leg., p. 478, ch. 203, Sec. 5, eff. Sept. 1, 1975. Amended by Acts 1983, 68th Leg., p. 413, ch. 85, Sec. 1, eff. Sept. 1, 1983; Acts 1983, 68th Leg., p. 5317, ch. 977, Sec. 7, eff. Sept. 1, 1983; Acts 1985, 69th Leg., ch. 330, Sec. 1, eff. Aug. 26, 1985; Acts 1987, 70th Leg., ch. 716, Sec. 1, eff. Sept. 1, 1987; Acts 1991, 72nd Leg., ch. 565, Sec. 6, eff. Sept. 1, 1991; Acts 1995, 74th Leg., ch. 476, Sec. 1, eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch. 740, Sec. 1, eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 39, Sec. 1, eff. Sept. 1, 1999; Acts 1999, 76th Leg., ch. 1285, Sec. 33, eff. Sept. 1, 2000; Acts 2001, 77th Leg., ch. 12, Sec. 1, eff. Sept. 1, 2001; Acts 2001, 77th Leg., ch. 1479, Sec. 1, eff. Sept. 1, 2001; Acts 2001, 77th Leg., ch. 1482, Sec. 1, eff. Sept. 1, 2001.
(a) A person commits an offense if, with specific intent to commit an offense, he does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended.
(b) If a person attempts an offense that may be aggravated, his conduct constitutes an attempt to commit the aggravated offense if an element that aggravates the offense accompanies the attempt.
(c) It is no defense to prosecution for criminal attempt that the offense attempted was actually committed.
(d) An offense under this section is one category lower than the offense attempted, and if the offense attempted is a state jail felony, the offense is a Class A misdemeanor.
Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1975, 64th Leg., p. 478, ch. 203, Sec. 4, eff. Sept. 1, 1975; Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.
While section 3(a) says nothing about the submission of a jury instruction to this effect, such instruction is logically required if the jury is to consider the extraneous-offense and-bad act evidence under the statutorily prescribed reasonable-doubt standard. Absent such instruction, the jury might apply a standard of proof less than reasonable doubt in its determination of the defendant's connection to such offenses and bad acts, contrary to section 3(a).[7] Section 3(a)'s requirement that the jury be satisfied of the defendant's culpability in the extraneous offenses and bad acts is thus "law applicable to the case" in the non-capital punishment context.[8]Cf. Arline v. State, 721 S.W.2d 348, 352 fn. 4 (Tex. Crim. App.1986) (recognizing that "statutorily defined word or phrase must be included in the charge as part of the `law applicable to the case'"). As this was "law applicable to the case" appellant was not required to make an objection or request under section 3(a) in order for the trial court to instruct the jury thereunder. For this reason, the Court of Appeals was correct to conclude the trial court erroneously failed to instruct the jury under section 3(a).
One other thing. There is an instruction in here the State has introduced evidence of extraneous crimes and bad acts. What that means is basically in this case, Hood County and the use of drugs. Those are all the extraneous bad acts that have been introduced. I don't want y'all to be misled by that. The law says you have to believe that stuff beyond a reasonable doubt. Well, we admit it so believe it beyond a reasonable doubt. Okay? (5 RR 12:21-13:4).
Although Mowla did say at one point something about getting an affidavit from Dr. Johnstone, the psychiatrist doctor who testified at my trial, and who provided the affidavit on my direct appeal pro se brief, but for whatever reason he did not.
Bipolar hypomania is considered present when a person experiences three of the following symptoms accompanied by a persistently elevated mood, or four of these symptoms in association with a sustained irritable mood: ¦ Fidgetiness, pacing, or restlessness, also known as psychomotor agitation [Examples include pacing around the room, tapping your toes, or rapid talking] ¦ Flight of ideas or feeling that your thoughts are racing ¦ Unusual talkativeness or feeling pressure to keep talking¦. (3 APP 245-246).
(b) ¦ a lawyer shall not represent a person if the representation of that person:
...
(2) reasonably appears to be or become adversely limited by the lawyer's or law firm's responsibilities ... to a third person
...
(c) A lawyer may represent a client in the circumstances described in (b) if:
(1) the lawyer reasonably believes the representation of each client will not be materially affected; and
(2) each affected or potentially affected client consents to such representation after full disclosure of the existence, nature, implications, and possible adverse consequences of the common representation and the advantages involved, if any¦ [I didn’t consent, obviously, when it became apparent that he was representing their interest over my own]
...
...
(e) If a lawyer has accepted representation in violation of this Rule, or if multiple representation properly accepted becomes improper under this Rule, the lawyer shall promptly withdraw from one or more representations to the extent necessary for any remaining representation not to be in violation of these Rules....
Comment:
¦
Interest of Person Paying for a Lawyer's Service
...
12. A lawyer may be paid from a source other than the client, if the client is informed of that fact and consents and the arrangement does not compromise the lawyer's duty of loyalty to the client. See Rule 1.08(e). For example, when an insurer [e.g., my family] and its insured [e.g., me] have conflicting interests in a matter arising from a liability insurance agreement [e.g., to raise or not raise certain grounds], and the insurer [e.g., my family] is required [which they were not; though they had my money, they should’ve given it back] to provide special counsel for the insured [e.g., me], the arrangement should assure the special counsel's professional independence [Mowla’s independence became dependent upon who was paying him]. So also, when a corporation [me] and its directors [me and my family] or employees [my family] are involved in a controversy in which they have conflicting interests, the corporation may provide funds for separate legal representation of the directors or employees [though they, my family, had and had control of all my funds], if the clients consent after consultation and the arrangement ensures the lawyer's professional independence.
Bernstein explained that [Booker] could not personally represent Booker in this effort but that another attorney could press the issue.
Bernstein even promised to help Booker find additional legal help.
Booker has not proven that he faced a "grisly choice" between foregoing the claim by continuing with Bernstein and abandoning all hope of collateral attack. As the Shriner court noted, Booker could have obtained additional counsel or proceeded pro se.;
also see In re Shiner, 735 F.2d 1236, 1240-41 (11th Cir. 1984):
O'Connell's affidavit indicates that he fully informed Shriner of his reasons for not raising the ineffective issue. Shriner nevertheless made no effort to displace O'Connell as his counsel, obtain new counsel, or proceed pro se, and raise the ineffectiveness issue.
Such strategic choice constitutes deliberate withholding of a claim, and subsequent assertion of that claim is abuse of the writ.
Norrid v. Quarterman, 2006 W.L. 2970439, 4:06-cv-00403-A (Doc. 14, page 2, 2d full ¶)(Norrid asserts that he filed a state application for writ of habeas challenging his convictions based on newly discovered evidence, which remains pending in the trial court at this time).
Both of them, but particularly Inman, seemed to think that ADHD should be a defense to attempted capital murder and both always portrayed Gaines to be a lot more disturbed and mentally retarded than he ever appeared to me face-to-face (SHCR 96, 2d full
¶).
If you did appeal, answer the following questions: ¦ What was the date of decision? May 18, 2005 (SHCR 3, Q.: 13(f)) Conformed (Date-Stamped) 11/1/06 (SHCR 2).
It is therefore recommended that Quarterman’s motion to dismiss be GRANTED and Gaines’s petition be dismissed without prejudice, except as to any application of the federal statute of limitations or other federal procedural bar that may apply (1 FCR 202, Doc. 17, page 4, 2d full
¶).
The Court has reviewed the pleadings and the record in this case, and has reviewed for clear error the proposed findings, conclusions and recommendation of the United States magistrate judge filed on October 20, 2006. The Court concludes that the petition for writ of habeas corpus should be dismissed for the reasons stated in the magistrate judge's findings and conclusions. Therefore, the findings, conclusions and recommendation of the magistrate judge are ADOPTED (1 FCR 205, Doc. 18, p. 1, 2d full
¶).
The undersigned Assistant Attorney General [Baxter Morgan] only received the records related to Gaines’s conviction today [8/9/06][30-days after respondent was ordered, i.e., on 7-10-06, to respond][See following paragraph] and has therefore not yet had adequate time to fully review the records and prepare a response. Conferring with counsel for the petitioner today revealed a number of conflicts in his schedule that would impede his ability to respond to the Director’s answer if it were filed in the next thirty days. Therefore, the Director respectfully requests an extension of sixty days, up to and including October 8, 2006, to file his response. The undersigned apologizes for the delay and would greatly appreciate more time in which to prepare and file a response
(
1 FCR 177, Doc. 12, page 1, 2d full ¶
)
RESPONDENT’S ANSWER. Pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts, Respondent is directed to file an answer, motion, or other response to this petition within 30 days of the date of this order, answering in accordance with Rule 5 of the Rules Governing Section 2254 Cases in the United States District Courts. Respondent shall raise by way of his answer, motion, or other response any appropriate defenses which Respondent wishes to have the Court consider, including, but not limited to, failure to exhaust available state remedies, untimely petition pursuant to 28 U.S.C. § 2244(d), a delayed or successive petition, or entitlement to judgment on any legal grounds (1 FCR 174, Doc. 10, page 1, 3d full
¶).
This cause came before the Court upon Respondent Quarterman’s unopposed motion for extension of time filed on August 9, 2006, in which he requests additional time to respond to Petitioner Barton Ray Gaines’s habeas corpus petition. Upon review and consideration thereof, it is ORDERED that Quarterman’s motion is GRANTED. Quarterman shall file his answer on or before October 9, 2006.1 SIGNED August 17, 2006 (FN1: Quarterman requests an extension up to and including October 8, 2006, however October 8, 2006, is a Sunday)(1 FCR 180, Doc. 13).
Before the Court is the petition for writ of habeas corpus under 28 U.S.C. § 2254 of petitioner Barton Ray Gaines, along with the October 20, 2006, findings, conclusions, and recommendation of the United States magistrate judge. The magistrate judge gave the parties until November 10 to file written objections to the findings, conclusions, and recommendation. As of the date of this order, no written objections have been filed (1 FCR 205, Doc. 18, page 1, 1st full
¶).
An affidavit is ORDERED from Hon. Greg Westfall and Hon. Cheyenne Minick concerning Applicants allegations of ineffective assistance of trial counsel in cause number[s] 0836979A [and 0836985]. The affidavits shall discuss counsel's representation of Applicant in addition to addressing Applicants specific claims (SHCR 91, ¶ 2) SIGNED AND ENTERED this the 16 day of Nov., 2006. /s/ Robert K. Gill (SHCR 91, 5th & 6th full ¶s) compare signature (1 CR 81).
In fact, based upon the types of questions he asked witnesses, his failure to conduct any meaningful cross examination, and his obvious failure to prepare for the trial, Westfall’s performance during the trial is a prima facie case of ineffective assistance of counsel (SHCR 46, 1st full
¶).
The Court adopts [completely 100% unabridged or unedited] the above state’s Memorandum, Findings of Fact and Conclusions of Law as its own and recommends that the relief BARTON RAY GAINES (“Applicant”) requests should be DENIED (SHCR 243, 1st full
¶). SIGNED AND ENTERED this 30th day of January, 2008. /s/ Louis E. Sturns.
As to not discussing the facts ..., that is false. I discussed the facts [obviously not, considering the Discount Tire Applications (SHCR 117-118 & 130-132), the bank contract (SHCR 116, 1st full ¶ & 127), and was it Tiffani’s or Brett’s ecstasy deal?] with him¦. (SHCR 93, 1st ¶, last sentence).
In the cases which went to trial, Gaines had shot two guys in the back with a shotgun during a robbery springing out of a marijuana deal¦. He then shoots the guys in the back as they are running away out by a stock tank on some fairly remote property in south Fort Worth (SHCR 93, last ¶; 1st half ¶ on p. 94).
Gaines is parked alongside a highway late at night flashing his lights at oncoming motorist as though he needed assistance. ...When they pull up, Gaines jumps out of the bed of his pickup with a ¦ SKS (SHCR 94, 1st
¶).
I did meet with Ms. Brooks one time -- at my office, during preparation for trial. I had also spoken to her more than once on the phone. We met for a time commensurate with her role [her role!] in the defense (SHCR 95, 1st
¶)(See, generally, Ch. 26, Subch. G, ¶ 232, above, and / or FN 316 below).
I am certain that Ms. Brooks testified to this at trial. I prepared Ms. Brooks to testify and she did testify (SHCR 100)(SHCR 66:15-67:16).
Tiffani and Paula testified and were saying (told Westfall (Greg)) they saw me at church on two different dates (Ch. 26, subch. G., ¶ 232).
I believe she [Paula] was one of Cheyenne Minick’s witnesses. Therefore, I would not have prepared her much at all to testify (and, so the story goes, they, of course, didn't compare notes, right? Yeah, right!)¦. As I recall, her testimony was pretty good [pretty good?!], so the amount of preparation she had must have been [must have been?!] about right [about right?!](SHCR 94, 5th full
¶).
Cheyenne Minick is a young local attorney who I had known as a lawyer, for probably a couple years at the time of this trial, I asked Cheyenne if he wanted to try this case with me and he said, yes. We worked together quite a bit to get the case ready for trial [I bet, but not enough, right? They missed a whopper], but his involvement was limited to directing a couple [Who, Paula? A couple is two] of witnesses at trial (SHCR 99, 4th full
¶).
I directed the presentation of Paula Adams-Thomas in this case. Prior to the presentation of her testimony I went over the elements of the testimony that she was going to provide, and she was well aware of the areas which were to be covered when she testified. These matters were discussed prior to the time of trial and her testimony (SHCR 189, 7th full ¶ - 190, 1st half
¶).
Prior to trial Mr. Westfall and myself [Minick (Cheyenne)] had several meetings with the family of Barton Gaines. The facts of the case, trial strategy and evidence that we could produce, at trial, were discussed extensively with the family, as well as with Mr. Gaines himself¦. The family as well as the client, were well informed as to all matters in the case [Obviously not or else we would’ve known what and why he was doing what he was doing regarding the timeline and charge errors, and ignored counsel to the contrary](SHCR 189, 3d full
¶).
As to not discussing the ... law, that is false. ¦ I discussed the law with him [obviously not the right law with regards to criminal responsibility for the extraneous, or the Paxil defense](SHCR 93, 1st
¶).
I remember as we did looking up at the overpass signs and thinking to myself how bright and animated everything looked (the swig or two I took off Tarah’s and Mindy’s Smirnoff in and for the picture was having an out-of-this-world effect on me), like I was in a cartoon or something (See Ch. 9, ¶78).
Penal Code--Title 1. Introductory Provisions--Chapter 8. General Defenses To Criminal Responsibility--Sec. 8.01. Insanity.
(a) It is an affirmative defense to prosecution that, at the time of the conduct charged, the actor, as a result of severe mental disease or defect, did not know that his conduct was wrong.
(b) The term "mental disease or defect" does not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct. Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1983, 68th Leg., p. 2640, ch. 454, Sec. 1, eff. Aug. 29, 1983; Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.
(a) A defense to prosecution for an offense in this code is so labeled by the phrase: "It is a defense to prosecution . . . ."
(b) The prosecuting attorney is not required to negate the existence of a defense in the accusation charging commission of the offense.
(c) The issue of the existence of a defense is not submitted to the jury unless evidence is admitted supporting the defense.
(d) If the issue of the existence of a defense is submitted to the jury, the court shall charge that a reasonable doubt on the issue requires that the defendant be acquitted.
(e) A ground of defense in a penal law that is not plainly labeled in accordance with this chapter has the procedural and evidential consequences of a defense. Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.
(a) An affirmative defense in this code is so labeled by the phrase: "It is an affirmative defense to prosecution . . . ."
(b) The prosecuting attorney is not required to negate the existence of an affirmative defense in the accusation charging commission of the offense.
(c) The issue of the existence of an affirmative defense is not submitted to the jury unless evidence is admitted supporting the defense.
(d) If the issue of the existence of an affirmative defense is submitted to the jury, the court shall charge that the defendant must prove the affirmative defense by a preponderance of evidence. Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.
Marsh v. Stephens, CIVIL ACTION No. H-14-2801 (2016 U.S. Dist. LEXIS 30608 (N.D.T.X. 2016)):
Where my case would have differed from Marsh's is I didn't exhibit signs of knowing right from wrong (in fact, I exhibited signs to the contrary):
Unfortunately, because [Marsh] gave a statement explaining, you know, why he did what he did, you know, and the steps that he took to cover up the murder and the fact that the body in this case “ that [Marsh] took, went to great lengths to “ I guess you can argue that the victim was lured into the home at a time there were no witnesses; that there was some premedication involved; that the body was then wrapped in, I think, sheet and some plastic and duct tape and taken to a remote location and dumped. Id. at *14-15
It became apparent, at least from Dr. Johnstone [NOTE: this is the same doctor Westfall mustered up for me], the facts of the case, the statements of [Marsh] himself, that he was not going to be able to support a “ the [standard] definition of insanity. He could not say based on that very narrow insanity definition he was not going to be able to support that and say that Mr. Marsh was insane at the time of the offense. Therefore, we needed to look for an alternative in an attempt “ and because of the Paxil issue, which I still believe is legitimate, we needed a vehicle to provide psychiatric testimony, to get the Paxil issue in front of the jury, because we believe that the Paxil given, that he was being prescribed the Paxil, that he was a juvenile, the issue involving Paxil, and his age was important, we thought that we were going to push the issue with temporary insanity with that definition at trial. Id. at *15
Furthermore, as an aside, it's amazing what the name of a good attorney can do. Nothing about George McCall Secrest, Jr.'s three grounds surpassed the 2244(d)
bar (see the same at page 2), the § 4 of Article 11.07 bar, or the Doctrine of Laches bar.† The same wasn't even given so much as a fleeting glance at the federal level, and
apparently the state level, either in Marsh's case. And yet here I am; I can't even get a word in edgewise, either on my
collateral consequences issue in my 11.09 and the ensuing appeal, or my 11.07, the ensuing appeal (original brief, first supplemental brief and / or second supplemental brief) and Rule 60(b) motion, plus then the ensuing appeal therefrom (notice & brief) on my felony conviction. Facts don't matter in this world, only who you are, and who you know.
Article 37.07 § 3(a) provides in relevant part: ... evidence may be offered by the state and the defendant as to any matter the court deems relevant to sentencing, including but not limited to ... evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible.... Huizar, 12 S.W.3d at 480-481.
Fields, at 688 (emphasis added). While section 3(a) says nothing about the submission of a jury instruction to this effect, such instruction is logically required if the jury is to consider the extraneous-offense-and-bad act evidence under the statutorily prescribed reasonable-doubt standard. Absent such instruction, the jury might apply a standard of proof less than reasonable doubt in its determination of the defendant's connection to such offenses and bad acts, contrary to section 3(a).[7] Section 3(a)'s requirement that the jury be satisfied of the defendant's culpability in the extraneous offenses and bad acts is thus "law applicable to the case" in the non-capital punishment context.[8], Cf. Arline v. State, 721 S.W.2d 348, 352 fn. 4 (Tex. Crim. App.1986) (recognizing that "statutorily defined word or phrase must be included in the charge as part of the `law applicable to the case'"). As this was "law applicable to the case" appellant was not required to make an objection or request under section 3(a) in order for the trial court to instruct the jury thereunder. For this reason, the Court of Appeals was correct to conclude the trial court erroneously failed to instruct the jury under section 3(a). Huizar, 12 S.W.3d at 484.
[4] In Mitchell, supra, a non-capital case, five judges held the defendant was entitled to have the jury instructed at punishment, upon request, that they shall not consider the extraneous offense and bad act evidence unless convinced beyond a reasonable doubt of the defendant's culpability for such offenses and acts. Mitchell, 931 S.W.2d at 954 (2-judge plurality), id. at 955 (Clinton, J., concurring) and id. at 955-57 (Meyers, J., joined by Clinton and Maloney, J.J., concurring). Huizar, 12 S.W.3d at 483.
MANSFIELD, J., delivered the concurring opinion. ¶ I join the opinion of the majority, reversing the judgment of the court of appeals and remanding this case for analysis under Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App.1985) (opinion on reh'g). ¶ I would additionally order the court of appeals to determine whether the failure of trial counsel to ask for the instruction as to the State's burden of proof as to extraneous offenses introduced at the punishment phase of appellant's trial amounts to ineffective assistance of counsel[1] to the extent that appellant is entitled to a new punishment hearing. Huizar, 12 S.W.3d at 485.
GILL: Either side want anything special in the charge? HARTMANN: I would like a charge on voluntary intoxication. WESTFALL: Does that affect punishment -- I thought that was a guilt-innocence issue. If there is a guilt-innocence issue in the charge, they will be asked to find him guilty. GILL: Anything else? WESTFALL: Not that I can think of right now. GILL: I will have it ready at 8:30. (Proceedings recessed)(4 RR 220:4-16).
(December 12, 2002)(Morning Session: ) [sic] GILL: Have both sides seen the copies of the Court's proposed charge? HARTMANN: State has. WESTFALL: Defense has. GILL: Either side have any objections or special requests? HARTMANN: State does not. WESTFALL: In both charges there appears an instruction on involuntary intoxication. However, we object to that in each charge and our reasons are that it is a guilt-innocence issue. He 's pled guilty. You have instructed the jury to find him guilty. The appearance of that in this charge, I think, is a comment on the weight of the evidence, the punishment evidence, because I think the jury is completely free to consider voluntary intoxication as it pertains to what punishment to assess. Therefore, we object to it in each charge. GILL: I think I will take it out. (Pause in the proceedings.) WESTFALL: Your Honor, the charges as currently constituted, which is my understanding, do not contain a voluntary intoxication instruction in either charge, we have no further objections to. GILL: That particular instruction has been removed from both charges (5 RR 2:2-3:4).
Appellant asserts that the trial court erred in not charging the jury in the punishment phase with Texas Penal Code § 8.04 relating to intoxication as mitigation. To raise the issue of insanity by voluntary intoxication for the purpose of mitigation, the evidence must establish that Appellant, as a result of intoxication (1) did not know his conduct was wrong, or (2) was incapable of conforming his conduct to the requirements of the law he violated. Coward v. State, 931 S.W.2d 386, 389 (Tex. App.--Houston [14th Dist.] 1996, no pet.).
Appellant was clearly intoxicated; however, there is no evidence tending to show that he did not know his conduct was wrong.
Id.; see also Cordova v. State, 733 S.W.2d 175, 190 (Tex.Crim.App.1987), cert. denied, 487 U.S. 1240, 108 S. Ct. 2915, 101 L.Ed.2d 946 (1988)(evidence that defendant was "crazy drunk" insufficient to show temporary insanity); Still v. State, 709 S.W.2d 658, 661 (Tex.Crim.App.1986)(evidence that defendant "lost his head" insufficient to show temporary insanity).
Actually, the defendant's confession clearly indicates that during the commission of the offense he was aware of the difference between right and wrong because he stated,
"I only wanted to scare them....
I would like to state that the reason I handled the rifle was because I did not want anyone to get hurt [sounds like Jason with Andy's wallet]....
I did not mean to hurt anyone."
Since the evidence shows only that Appellant was intoxicated and that his state of intoxication was voluntarily induced, he is not entitled to the instruction on voluntary intoxication as mitigation under Section 8.04(a) of the Texas Penal Code. Point of Error No. Eight is overruled.
Attempted capital murder requires an intent to kill. I think the video from Walmart would have provided that. I did not want the jury to have just made a finding of an intent to kill and then start the punishment phases (SHCR 94, 1st full
¶).
In addition, the “Paxil defense,” which we were going to use, would not apply during the guilt / innocence phase to ether attempted capital murder or aggravated robbery. The “Paxil defense” did not negate the intent to kill, it went to explain it. Thus, our psych evidence would have been inadmissible at guilt or innocence, in any event. Thus, it made a lot of sense to first admit responsibility (while taking “intent to kill” out of the equation) and then float the “Paxil defense” during punishment (SHCR 94, 2d full
¶).
We used the Paxil defense. Gaines’ mental condition was the cornerstone of our defense (SHCR 97, 4th
¶). Yeah, what, because of Huizar v. State, 12 S.W.3d 479 (Tex. Crim. App. 2-23-00)(unanimity)(whose holding, ironically enough, held two years prior to the day Rick was shot).
A Walmart store video from minutes before the shooting shows Gaines purchasing the double-ought buck shells to load into his shotgun. He is pointing out the shells he needs and then finally goes behind the counter and retrieves them, purchases them from the clerk and the[n] leaves (SHCR 93, 5th full
¶).HARTMANN: Does it appear that that young man at some point I goes behind the counter to help the Walmart employee to locate what he's looking for specifically? RIVAS: Yes. (3 RR 120:10-13). HARTMANN: And do you recall what basically just in general what he's doing in that video? MINDY: He goes behind the counter to get bullets for his shotgun (3 RR 177:17-20).
[Bart] was acting like it was not a big deal (3 APP 78:3). HARTMANN: How was Bart behaving? MINDY: Not--not any different really [You mean I didn’t think we did anything wrong?]. HARTMANN: He just seemed pretty normal to you? MINDY: Yes. HARTMANN: Same old Bart.? MINDY: Yes. (3 RR 169:15-20).
I engaged Dr. Connell on March 4, 2002 to examine Gaines for competence, etc. Dr Connell called me after her visit with Gaines and said that, in her opinion, he was frankly anti-social. Her verbal report was horrible for us, so I never had her boil it down to writing. Calling her to the stand in front of the jury would have been suicidal (SHCR 93, 2d full
¶).
Exhibit 1 reflects that Dr. Connell visited Gaines May 3, 2002. I do not recall why there was a delay between her engagement and her visit with Gaines. Dr. Connell’s assessment has already been discussed (SHCR 99, 2d full
¶).
Further, as mentioned earlier, Dr. Connell’s diagnosis was quite adverse to our case, so I didn't request a written report (SHCR 101, 6th full
¶).
Johnstone did testify before the jury. What happened was during the Rule 702(b) hearing, Johnstone made some statements about Gaines not feeling remorse¦. That testimony gave me great pause. I considered not calling him. I ultimately did call him, but not because Inman pleaded with me that it is Gaines, only chance. I also did not force her to hire Dr. Johnstone (SHCR 98, 5th
¶).
I do recall that we took a break at the end of the 705(b) hearing. The hesitation in putting Johnstone on in front of the jury was because he made some statements during the hearing regarding Gaines, lack of remorse. In the end, he did testify (SHCR 103, 1st half
¶).
This was something evidently even Hartmann noticed, because I was still on Paxil and it dis inhibited my social judgment to plead guilty: HARTMANN: During your 20-minute interview with the Defendant, what did you speak about?¦ JOHNSTONE: What I was looking for in talking with him was to see if he seemed to have an appreciation about the consequences of his behavior on other people. He seemed to have an oblivious disregard for the impact of his behavior on other people. HARTMANN: You are certainly not here to offer any type of opinion on sanity, are you? A. No, not at all. What I'm talking about is the dis inhibition of social judgment. That's one of the adverse effects of Paxil (4 RR 138:14-15 & 139:1-10).
That is, Dr. Johnstone’s attempt to take a swipe at my criminal responsibility by conceding my guilt, which evidently undercut Westfall’s (Greg) overriding strategy to suggest I wasn’t a principal, etc., i.e.., his (Greg Westfall’s) sandbagging, among other things, my innocence for appeal (a writ).
I did not prepare Gaines to testify, because it was more than apparent fairly early on that Gaines was not going to testify¦. I spent as much time as I needed to spend with Gaines. Adams and Inman were my main historians for the punishment case (SHCR 99, 5th
¶).
It would have made no sense to try to show there was a reasonable doubt that he shot these guys. Not only would that have failed, it would have cut against the whole reason we plead guilty in the first place, which was personal responsibility (SHCR 98, 7th full
¶, & p. 99, 1st
¶).
WESTFALL: Did you -- prior to this night, did you know any of the guys in that Photograph? ANDY: No. WESTFALL: Your Honor, may I approach the witness? GILL: Yes. WESTFALL these folks here in this picture, you didn't know any of these guys? ANDY: No, I didn't. WESTFALL: So you have -- after this night learned the names of these people? ANDY: Yes. WESTFALL: And did you -- when you are at the apartments over there, did you see who actually lifted Michael's shirt? ANDY: I didn't -- I saw Mike kind of lifted his shirt. They were yelling at him to lift up his shirt. WESTFALL: Did you hear who exactly was yelling at him to lift up his shirt? ANDY: No, not exactly. WESTFALL: So when you say they were doing that, you heard a voice yelling, but you can't really can't tell the jury who? ANDY: I heard somebody from the car yelling to lift up your shirt (3 RR 110:10-111:9).
And because of Westfall's (Greg's) shenigans (half-heartedly flirting herewith), Foran struck back with prejudice:
FORAN: Those injuries that you have, did they leave some scarring? ANDY: Yes. FORAN: Could you roll up your sleeve and show it to the jury? ANDY: (Witness
complies) FORAN: Can you step down, Please? ANDY: (Witness complies) FORAN: Okay. And walk down here. On the top part of your biceps you have three scars; is that right? ANDY: Yes. FORAN: Plus another scar here in the crook of your elbow? ANDY: Here. FORAN: And if you could turn to the back so you don't have to twist it over -- there are some of the other
scars; is that correct? ANDY: Yes. FORAN: That's all as a result of being shot that evening. ANDY: Yes.
Thank you Greg Westfall for toying with my life to make a few off the cuff comments (hints; suggestions) that you otherwise did not intend to make use of.
WESTFALL: Officer Gass, do you have any way of knowing who actually owns that gun? GASS: I don't know. WESTFALL: Is that something that you-all -- I guess it is something y'all try to find out. But in this case, did you try to find out who owns the gun, if the gun is registered to somebody? GASS: No, that's not something crime-scene would be responsible for (3 RR 147:12-20).
WESTFALL: Jason Tucker -- you are friends with Jason also, right? MINDY: Yes. WESTFALL: And Jason is an intelligent guy, isn't he? MINDY: Yes (3 RR 182:7-11).
WESTFALL: You have also known Jason Tucker. TARAH: Yes. WESTFALL: And he is an intelligent guy, wouldn't you say? TARAH: He's intelligent? WESTFALL: Yeah, he's smart, on the ball. TARAH: I mean, I don't know what kind of grades he made in school or anything. WESTFALL: How does he seem when you are talking to him? TARAH: He was a good friend of mine too. WESTFALL: Well, let me ask you -- Brett Tucker. You know Brett Tucker, right? TARAH: Yes. WESTFALL: This SKS here, isn't that Brett's gun? TARAH: I never saw Brett -- he never told me anything -- WESTFALL: There were a lot of folks that went out and shot guns at this Rice Paddy place? TARAH: Yes. WESTFALL: And Brett had guns also? TARAH: Yes (3 RR 206:12-207:7).
WESTFALL: Generally speaking, the further you are away from a shotgun the bigger the spread of the pellets is going to be? FAZIO:
Yes. WESTFALL: Is there any way to know a number of feet away from a shotgun how big the spread is going to be if you don't have the shotgun? Can you estimate? FAZIO: You can do an estimation, yes, sir. There are a lot of variables. The biggest problem is that you don't know the length of the barrel. That will have a big effect on how much the pattern spreads. With buckshot -- I also -- excuse me, let me backup. The constriction or the choke on the end of the barrel will also have some effect on that. We don't know if we don't have the gun. With buckshot, it is a little easier because we have far fewer pellets. If you're dealing with something, for instance, like bird shot, there are a lot more variables involved in that, and it would be difficult to estimate or even guess (3 RR 251:25-252:19).
Another consideration was getting the state to try both the pending cases at once. They had the option to try only one of the cases and hold the other one back for another trial if the first trial did not go as well as they hoped. This is a common tactic where there are multiple cases (SHCR 94, 3d full
¶).
Detrich v. Ryan, 740 F.3d 1237, 1244 (9th Cir. 2013)(The strict "cause" and "prejudice" rule, first articulated by the Court in 1977 in Wainwright v. Sykes, [433 U.S. 72 (1977)] replaced the more lenient "deliberate bypass" rule that had been established in Fay v. Noia, 372 U.S. 391, 438-39, 83 S. Ct. 822, 9 L.Ed.2d 837 (1963). The Court in Wainwright justified the strictness of the new rule as necessary to prevent competent defense counsel from "sandbagging" the prosecution at trial. 433 U.S. at 89, 97 S. Ct. 2497. The Court explained that the rule discouraged "`sandbagging' on the part of defense lawyers, who may take their chances on a verdict of not guilty in a state trial court with the intent to raise their constitutional claims in a federal habeas court if their initial gamble does not pay off." Id. Sandbagging might consist, for example, of competent defense counsel deliberately failing to make a constitutional objection to testimony of a key prosecution witness, with the result that neither the court nor the prosecutor takes corrective action during the trial. Then, in the event that the defendant is convicted, defense counsel could raise for the first time on federal habeas the constitutional objection he deliberately failed to make during trial, with the result that the conviction would be set aside)(emphasis added).
(d) An offense under this section is one category lower than the offense attempted, and if the offense attempted is a state jail felony, the offense is a Class A misdemeanor.
Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1975, 64th Leg., p. 478, ch. 203, Sec. 4, eff. Sept. 1, 1975; Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.
Penal Code>>Title 3. Punishments>>Chapter 12. Punishments>>Subchapter A. General Provisions>>Sec. 12.04. Classification Of Felonies.
(a) Felonies are classified according to the relative seriousness of the offense into five categories:
(1) capital felonies;
(2) felonies of the first degree (emphasis added);
(3) felonies of the second degree;
(4) felonies of the third degree; and
(5) state jail felonies.
(b) An offense designated a felony in this code without specification as to category is a state jail felony.
Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1973, 63rd Leg., p. 1125, ch. 426, art. 2, Sec. 3, eff. Jan. 1, 1974; Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.
Penal Code Title 3. Punishments>>Chapter 12. Punishments>>Subchapter C. Ordinary Felony Punishments>>Sec. 12.32. First Degree Felony Punishment:
(a)‚An individual adjudged guilty of a felony of the first degree shall be punished by imprisonment in the Texas Department of Criminal Justice for life or for any term of not more than 99 years or less than 5 years.
(b)‚In addition to imprisonment, an individual adjudged guilty of a felony of the first degree may be punished by a fine not to exceed $10,000.
The state’s offer was 40 years. The state’s offer never, ever came down from 40 years. I never guaranteed Gaines probation. Quite the opposite. (SHCR 94, 4th full
¶). My guess is he asked Foran once about the 40 year offer, then his (Westfall’s (Greg’s)) attention soon thereafter turned to Gill and resentencing and probation (i.e., rather than a 20 or 30 year settlement, for example). And as for his
(Sturn) stance hereto, Gill was indeed his friend; Gill ultimately got fired in any event, swept under the rug, of course. As far as I knew, though, as far as the 40 years goes, Westfall (Greg) never attempted to talk them (Foran then Hartmann) down off the forty (40) year. Furthermore, I would guess the reason why Foran decided to take second chair to Hartmann (bring her in on the deal) was two fold. Suborned perjury; he needed a woman's touch. And two, he was having second thoughts; his witnesses weren't what he once thought, i.e., his case was a complete fabrication.
Prior to trial Mr. Westfall and myself had several meetings with the family of Barton Gaines. The facts of the case, trial strategy and evidence that we could produce, at trial, were discussed extensively with the family, as well as with Mr. Gaines himself¦. The family as well as the client, were well informed as to all matters in the case including the punishment range and possible outcomes (SHCR 189, 3d full
¶).
The decision for Mr. Gaines to plead guilty was made with full knowledge of the possible consequences, and with the permission of not only Mr. Gaines, but with the consent of his family as well. Neither did Mr. Westfall or myself ever promised Mr. Gaines as to any specific result. In all the time, both prior to trial and during trial, neither did Mr. Westfall or myself ever promise to the family or Mr. Gaines, that Mr. Gaines would receive probation (SHCR 189, 4th full
¶).
I did not tell Gaines, or Inman, or anyone else that Gaines would get probation. The State’s offer is a good indication that probation was a long shot (SHCR 100, 1st
¶). No, but two tens for a virtual 20 were a hopeful (5 RR 11:15-17 + 13:3-19).
I did not represent to Adams that Gaines would get probation just as I never represented that to him (SHCR 102, 3d full
¶).
On the issue of success at trial, I am sure I gave a frank analysis of Gaines’ chance for a not guilty verdict at trial. I actually asked the jury for probation on one case and 10 years [which could and would then be reduced to probation by Gill] on the other (SHCR 98, 1st
¶). After it was all said and done, incidentally, Westfall (Greg) did say that I would never have to pay the two $10k fines (the maximum fine two times over) and that the two 35 year sentences of confinement would go by real quick (this was the captain of the ship speaking to you; "abandon ship")(maybe it was because of his knowledge of the ensuing appeal).
WESTFALL: I want to suggest to y'all give him probation on one case, ten years probated, and give him five years on the other case in the penitentiary. They run side by side. That way we tell Bart, don't ever do anything like that again. The other way, when Bart is finished with his time in the penitentiary, he's still under the direction of this Court (5 RR 13:3-9).
This is completely false [as in some of the stuff was somewhat true?]. First of all, it didn’t happen. Secondly if the judge [Gill] had seen Gaines and Cheyenne having the interaction, he would not have accepted the plea. Gaines understood what he was doing. It was also done in open court, as it was no secret (what exactly was no secret, the plea
interaction between me and Minick (Cheyenne)?)(SHCR 100, 2d full
¶). Then why did he tell my family not to show up that first day (SHCR 77:33)? The court room was virtually empty but for us during that first plea interaction (i.e., the slow plea)(2 RR 3:4).
Moore v. State, 165 S.W.3d 118, 121, 126 (Tex. App.--Fort Worth 2005, no pet.):
Therefore, [Gill] was not required to instruct the jury that it must find beyond a reasonable doubt that Appellant was convicted of the numerous offenses to which he testified or the State proved had resulted in final convictions.
However, even if we assume that [Gill] did err in failing to sua sponte provide a beyond-a-reasonable-doubt jury instruction regarding Appellant's drug use and drunk driving, Appellant was not harmed.
Gill was building a good track record on this issue.
I am sure I said to not come during jury selection, as there would be no place to sit (SHCR 102, 5th full
¶). Does Westfall (Greg) have the right to close jury selection to the public, apart of which my folks were apart (Gill could've carved out a portion of the benches for the public by having the remaining jurors sit in the jury box, and SCOTUS has said as much (it is structural error, to say the least);
The conclusion that trial courts are required to consider alternatives to closure even when they are not offered by the parties is clear not only from this Court’s precedents but also from the premise that “[t]he process of juror selection is itself a matter of importance, not simply to the adversaries but to the criminal justice system.” Id., at 505. The public has a right to be present whether or not any party has asserted the right. In Press-Enterprise I, for instance, neither the defendant nor the prosecution requested an open courtroom during jury voir dire proceedings; in fact, both specifically argued in favor of keeping the transcript of the proceedings confidential. Id., at 503“504. The Court, nonetheless, found it was error to close the courtroom. Id., at 513.
¶ Trial courts are obligated to take every reasonable measure to accommodate public attendance at criminal trials. Nothing in the record shows that the trial court could not have accommodated the public at Presley’s trial. Without knowing the precise circumstances, some possibilities include reserving one or more rows for the public; dividing the jury veniremen panel to reduce courtroom congestion; or instructing prospective jurors not to engage or interact with audience members).
This is completely false [as in some of the stuff was somewhat true] First of all, it didn’t happen. Secondly if the judge [Gill] had seen Gaines and Cheyenne having the interaction, he would not have accepted the plea. Gaines understood what he was doing. It was also done in open court, as it was no secret (SHCR 100, 2d full
¶).
So I asked her (my mom) if she took it or anything else out of the file Westfall (Greg) said he gave her on 8-5-05, but she said no (SHCR 95, 3d full ¶). So I asked him (Mowla) if he reviewed the file Minick (Cheyenne) said he had (SHCR 189, 1st ¶), which he said if it was in the original file that he had otherwise reviewed (i.e., the one my mom got from Westfall (Greg) for him) then no). And So I asked whether he thought he maybe should, to which he (Mowla) said, "No."
Lawrence v. Florida, 549 U.S. 327, 127 S. Ct. 1079, 1083 (2007)(Read naturally, the text of the statute must mean that the statute of limitations is tolled only while state courts review the application. As we stated in Carey v. Saffold, 536 U.S. 214, 220, 122 S. Ct. 2134, 153 L. Ed. 2d 260 (2002) (internal quotation marks omitted), a state post-conviction application "remains pending" "until the application has achieved final resolution through the State's post conviction procedures." This Court is not a part of a "State's post conviction procedures." State review ends when the state courts have finally resolved an application for state post-conviction relief. After the State's highest court has issued its mandate or denied review, no other state avenues for relief remain open. And an application for state post-conviction review no longer exists. All that remains is a separate certiorari petition pending before a federal court. The application for state post-conviction review is therefore not "pending" after the state court's post conviction review is complete, and § 2244(d)(2) does not toll the 1-year limitations period during the pendency of a petition for certiorari).
[A]dditional time to respond is required and would be greatly appreciated by both the Director and the Petitioner [Mowla](1 FCR 177, 1st
¶). Conferring with counsel for the petitioner today revealed a number of conflicts in his schedule that would impede his ability to respond to the Director’s answer if it were filed in the next thirty days. Therefore, the Director respectfully requests an extension of sixty days, up to and including October 8, 2006, to file his response (1 FCR177, 2d
¶). The undersigned assures the Court that this request for an extension of time is not designed to harass the Petitioner, nor to unnecessarily delay these proceedings. Rather, this extension is necessary to give the undersigned sufficient time to properly address Mr. Gaines’s federal claims and best facilitate the proceeding of this case (1 FCR 177-78, 3d
¶). I do hereby certify that on August 9. 2006, I conferred with counsel for the petitioner, M. Michael Mowla, and he was unopposed to my motion for an extension of time and indicated that a sixty day extension would be the most beneficial arrangement for this case (1 FCR179, 2d
¶).
BLEIL: RESPONDENT’S ANSWER. Pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts, Respondent is directed to file an answer, motion, or other response to this petition within 30 days of the date [7-10-06] of this order, answering in accordance with Rule 5 of the Rules Governing Section 2254 Cases in the United States District Courts. Respondent shall raise by way of his answer, motion, or other response any appropriate defenses which Respondent wishes to have the Court consider, including, but not limited to, failure to exhaust available state remedies, untimely petition pursuant to 28 U.S.C. § 2244(d), a delayed or successive petition, or entitlement to judgment on any legal grounds (1 FCR 174, 3d full
¶). MORGAN: The undersigned Assistant Attorney General only received the records related to Gaines’s conviction today [8-9-06](1 FCR 177, 2d
¶).
Both of them, but particularly Inman [she (my grandma) could be very demanding], seemed to think that ADHD should be a defense to attempted capital murder and both always portrayed Gaines to be a lot more disturbed and mentally retarded than he ever appeared to me face-to-face (SHCR 96, 2d full
¶).
Further, Gaines only challenged the lack of a competency hearing in his PDR, not the voluntariness of his plea. PDR No. 1787-04, at 4-7. As such, Gaines’s instant claim regarding the voluntariness of his plea also remains exhausted (1 FCR 186, 1st full
¶). But see: Ground for review no. 1 [on my PDR]: the court of appeals erred in holding that the petitioner's plea of guilty was not voluntary because the trial court failed to sua sponte hold a competency hearing at the time petitioner entered his plea of guilty (page 4).
[Means], after de novo review, concludes that [Mowla’s] objections must be overruled, and that the petition for writ of habeas corpus should be dismissed with prejudice as time-barred under 28 U.S.C. § 2244, for the reasons stated in the [Bleil’s] findings and conclusions, and for the reasons stated in [Bozarth’s] preliminary response at pages 6-7 (2 FCR 155, Doc. 13, 2d full
¶).
Mowla also didn’t tell me he (Mowla) abandoned the 2253 proceedings while he went back and exhausted my 2254(b) proceedings (See Ch. 28, ¶ 254 above).
When we returned to federal court on 3-8-08 (2 FCR 1)(Doc. 1) I didn’t find out (Mowla, nor my family told me) that Means adopted Bleil’s F, C, & R that I was time barred until the Summer of 2009 (See Ch. 31, ¶ 264 above).
I do remember my mom telling me about Mowla talking about Westfall (Greg) was the Holy War Foundation lawyer, suggesting that no Court in the world would rule him ineffective. See, e.g., U.S. v. EL-MEZAIN, Nos. 09-10560,08-10664, 08-10774, 10-10590 and 10-10586. 664 F.3d 467 (5th Cir. 2011).
Gaines v. Livingston, 2010 U.S. Dist. LEXIS 26935 (N.D.T.X. 03/22/10)(Case 7:08-cv-00122-O, Doc. 40 page 3, 1st full ¶)
In their motion, Defendants do not deny that Plaintiff was stabbed by another inmate. However, they deny that they were deliberately indifferent to a substantial risk of serious harm to Plaintiff. In his Second Amended Complaint, Plaintiff states that Officer Hill ignored his three pleas for help after he had been stabbed. Plaintiff's Second Amended Complaint, Supporting Facts and Arguments at p. 7 (hereinafter Plaintiff's Supporting Facts at p. ___.").
He claims that, when officers did become involved after the stabbing incident, Major Wolf interrogated him, handcuffed him, became agitated, threatened him and ordered that he remain in shackles while driving to the hospital. Id. at pp. 7-8. Plaintiff claims that none of the Defendants on the scene after the stabbing had the mental wherewithal or common sense to take him to the hospital emergency room. Id. at p. 7. Rather, an officer contacted Warden Eddie Williams who told officers to take Plaintiff to the hospital. Id.).
Gaines v. Livingston, 2010 U.S. Dist. LEXIS 26935 (N.D.T.X. 03/22/10)(Case 7:08-cv-00122-O, Doc. 40 pages 5-6, last ¶, 1st half of next)
While it is unfortunate that inmates sometimes attack each other, prison officials who lack knowledge of facts which could indicate that such an attack is going to occur are many times powerless to prevent the attack. There is nothing in the record of this case to indicate that any Defendant was deliberately indifferent to Plaintiff's health or safety. To the contrary, after the stabbing, Plaintiff was taken to the hospital at the direction of Warden Eddie Williams. Even assuming arguendo that Plaintiff had demonstrated an excessive risk to his safety, he has failed to claim that any Defendant was aware of facts which could indicate a risk of harm. To the extent, if any, that Plaintiff is asserting a claim based upon negligence, relief is unavailable under § 1983. Daniels v. Williams, 474 U.S. 327 (1986); Davidson v. Cannon, 474 U.S. 344 (1986)).
“There was no question about who had it and who was using it because Tara[h] told you who used it that night. He shot a sleeping man in the back of a vehicle because their only crime was to try and be a good Samaritan [how damning, and misleading!] (5 RR 6:21-25).
Government Code--Title 5. Open Government; Ethics--Subtitle A. Open Government--Chapter 552. Public Information--Sec. 552.028. Request For Information From Incarcerated Individual:
(a) A governmental body is not required to accept or comply with a request for information from: (1) an individual who is imprisoned or confined in a correctional facility; or (2) an agent of that individual, other than that individual's attorney when the attorney is requesting information that is subject to disclosure under this chapter.
(b) This section does not prohibit a governmental body from disclosing to an individual described by Subsection (a)(1), or that individual's agent, information held by the governmental body pertaining to that individual.
(c) In this section, "correctional facility" means:
(1) a secure correctional facility, as defined by Section 1.07, Penal Code;
(2) a secure correctional facility and a secure detention facility, as defined by Section 51.02, Family Code; and
(3) a place designated by the law of this state, another state, or the federal government for the confinement of a person arrested for, charged with, or convicted of a criminal offense.
Added by Acts 1995, 74th Leg., ch. 302, Sec. 1, eff. June 5, 1995. Renumbered from Government Code Sec. 552.027 by Acts 1997, 75th Leg., ch. 165, Sec. 31.01(44), eff. Sept. 1, 1997; Acts 1997, 75th Leg., ch. 1231, Sec. 6, eff. Sept. 1, 1997. Amended by Acts 1999, 76th Leg., ch. 154, Sec. 1, eff. May 21, 1999; Acts 2001, 77th Leg., ch. 735, Sec. 1, eff. June 13, 2001; Acts 2003, 78th Leg., ch. 283, Sec. 45, eff. Sept. 1, 2003.
Code Of Criminal Procedure--Title 1. Code Of Criminal Procedure--Chapter 55. Expunction Of Criminal Records--Art. 55.04. Violation Of Expunction Order--Sec. 1. A person who acquires knowledge of an arrest while an officer or employee of the state or of any agency or other entity of the state or any political subdivision of the state and who knows of an order expunging the records and files relating to that arrest commits an offense if he knowingly releases, disseminates, or otherwise uses the records or files. Sec. 2. A person who knowingly fails to return or to obliterate identifying portions of a record or file ordered expunged under this chapter commits an offense. Sec. 3. An offense under this article is a Class B misdemeanor. Added by Acts 1977, 65th Leg., p. 1880, ch. 747, Sec. 1, eff. Aug. 29, 1977. Amended by Acts 1979, 66th Leg., p. 1333, ch. 604, Sec. 1, eff. Aug. 27, 1979.
I paid Westfall approx. $25K (My fee was $25,000. I charged $15,000 up front and another $10,000 for a trial fee (SHCR 97, last
¶, & 98 1st half)(although my grandma kept a running tally of $46K + (6 APP 59-65) ; Pendergraff $5k (Order To Allow Access By Investigator To The Tarrant County Sheriff: You Are Hereby Ordered To Allow Fred Pendergraf And Paul Gordon to enter the Tarrant County Jail for the purpose of interviewing Barton Ray Gaines, DOB 10-25-82, and any other persons necessary for the defense of his case. Signed this 3rd day of June, 2002)(1 CR 11); $1,568 to Dr. Connell (SHCR 105);$17,000.00 to Dr. Johnstone(SHCR 107); $1.2K to Tatum; and $30K+ to Mowla.
Code Of Criminal Procedure--Title 1. Code Of Criminal Procedure--Chapter 42. Judgment And Sentence--Art. 42.09. Commencement Of Sentence; Status During Appeal; Pen Packet. Sec. 8.
(a) A county that transfers a defendant to the Texas Department of Criminal Justice under this article shall deliver to an officer designated by the department:
(1) a copy of the judgment entered pursuant to Article 42.01, completed on a standardized felony judgment form described by Section 4 of that article;
...
(3) a written report that states the nature and the seriousness of each offense and that states the citation to the provision or provisions of the Penal Code or other law under which the defendant was convicted;
(4) a copy of the victim impact statement, if one has been prepared in the case under Article 56.03;
¦
(6) if requested, information regarding the criminal history of the defendant, including the defendant's state identification number if the number has been issued;
(7) a copy of the indictment or information for each offense;
(8) a checklist sent by the department to the county and completed by the county in a manner indicating that the documents required by this subsection and Subsection
...
(c) accompany the defendant;
...
(9) if prepared, a copy of a presentence or post-sentence report prepared under Subchapter F, Chapter 42A;
(10) a copy of any detainer, issued by an agency of the federal government, that is in the possession of the county and that has been placed on the defendant;
(11) if prepared, a copy of the defendant's Texas Uniform Health Status Update Form;
(12) a written description of a hold or warrant, issued by any other jurisdiction, that the county is aware of and that has been placed on or issued for the defendant; and
(13) a copy of any mental health records, mental health screening reports, or similar information regarding the mental health of the defendant.
Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722. Amended by Acts 1973, 63rd Leg., p. 206, ch. 91, Sec. 2, eff. Aug. 27, 1973; Acts 1977, 65th Leg., p. 2018, ch. 806, Sec. 1, eff. Aug. 29, 1977. Amended by Acts 1981, 67th Leg., p. 810, ch. 291, Sec. 117, eff. Sept. 1, 1981. Sec. 7 added by Acts 1983, 68th Leg., p. 148, ch. 40, Sec. 1, eff. April 26, 1983; Acts 1983, 68th Leg., p. 4668, ch. 810, Sec. 1, eff. Sept. 1, 1983; Sec. 8 amended by Acts 1985, 69th Leg., ch. 344, Sec. 3, eff. Jan. 1, 1986; Acts 1987, 70th Leg., ch. 1049, Sec. 53, eff. Sept. 1, 1987; Sec. 8(a) amended by Acts 1989, 71st Leg., ch. 785, Sec. 4.12, eff. Sept. 1, 1989; Sec. 8(h) added by Acts 1989, 71st Leg., ch. 33, Sec. 2, eff. April 26, 1989; Sec. 8(a) amended by Acts 1991, 72nd Leg., 2nd C.S., ch. 10, Sec. 11.05, eff. Aug. 29, 1991. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 5.03, eff. Sept. 1, 1993; Sec. 8(a) to (c) amended by Acts 1995, 74th Leg., ch. 321, Sec. 3.001, eff. Sept. 1, 1995; Sec. 8(d) amended by Acts 1995, 74th Leg., ch. 321, Sec. 3.001, eff. Sept. 1, 1995; Acts 1995, 74th Leg., ch. 723, Sec. 1, eff. Sept. 1, 1995; Sec. 8(f), (h), (i) amended by Acts 1995, 74th Leg., ch. 321, Sec. 3.001, eff. Sept. 1, 1995; Sec. 8(a) amended by Acts 1999, 76th Leg., ch. 1188, Sec. 1.42, eff. Sept. 1, 1999; Sec. 8(c) amended by Acts 1999, 76th Leg., ch. 1477, Sec. 29, eff. Sept. 1, 1999; Sec. 9 added by Acts 1999, 76th Leg., ch. 655, Sec. 1, eff. June 18, 1999; Sec. 4 amended by Acts 2001, 77th Leg., ch. 214, Sec. 1, eff. May 22, 2001; Sec. 8(j) added by Acts 2001, 77th Leg., ch. 453, Sec. 1, eff. June 8, 2001; Sec. 8(a) amended by Acts 2003, 78th Leg., ch. 14, Sec. 1, eff. Sept. 1, 2003. Amended by: Acts 2005, 79th Leg., Ch. 728 (H.B. 2018), Sec. 4.005, eff. September 1, 2005. Acts 2007, 80th Leg., R.S., Ch. 1308 (S.B. 909), Sec. 4, eff. June 15, 2007. Acts 2009, 81st Leg., R.S., Ch. 87 (S.B. 1969), Sec. 25.023, eff. September 1, 2009. Acts 2009, 81st Leg., R.S., Ch. 87 (S.B. 1969), Sec. 25.024, eff. September 1, 2009. Acts 2009, 81st Leg., R.S., Ch. 980 (H.B. 3671), Sec. 1, eff. September 1, 2009. Acts 2015, 84th Leg., R.S., Ch. 282 (H.B. 904), Sec. 1, eff. September 1, 2015. Acts 2015, 84th Leg., R.S., Ch. 770 (H.B. 2299), Sec. 2.15, eff. January 1, 2017. Acts 2015, 84th Leg., R.S., Ch. 770 (H.B. 2299), Sec. 2.16, eff. January 1, 2017. Acts 2019, 86th Leg., R.S., Ch. 469 (H.B. 4173), Sec. 2.15, eff. January 1, 2021. Acts 2019, 86th Leg., R.S., Ch. 1212 (S.B. 562), Sec. 1, eff. June 14, 2019. Acts 2019, 86th Leg., R.S., Ch. 1276 (H.B. 601), Sec. 4, eff. September 1, 2019.
This was the same kid, according to Tiffani’s misrepresented testimony, thanks to Westfall (Greg)(Ch. 26., Subch. G., ¶ 232 above), who (Daniel) supposedly went with me to Tiffani’s after supposedly shooting Rick, which suggest to me the reason why he (Mowla) wouldn’t argue I didn’t shoot Rick, absent his (Mowla’s) and Westfall’s (Greg’s) unsaid relationship (the timeline and charge errors) was because he (Mowla) was worried it would affect his (Mowla’s) other client, Daniel.
On January 11, 2021, at 3:22 p.m., Christina R. Sims, apparently Mark C. Kratovil’s secretary, called me in regards to my 12-30-2020 email regarding the missing photo spread, among other documents, that for some strange reason it didn’t exist or was never created (1 APP 23:1).
Probably on the same day they had Mindy (3 APP 85-86)(Note the time: 2:35 p.m.), Tarah (3 APP 87-88)(Note the time: 3:40p.m.), and Andy (3 APP 89-90)((Note the time: 6:45 p.m.) identify me.
On January 11, 2021, at 3:22 p.m., Christina R. Sims, apparently Mark C. Kratovil’s secretary, called me in regards to my 12-30-2020 email regarding the missing photo spread, among other documents, that for some strange reason it didn’t exist or was never created (1 APP 23:1).
On 10/04/02 [Goin] closed the file for lack of any new information. The girlfriend [Tiffani or Carrie Davis (3 APP 142:50-51)?] of the suspect [Me or Stanley Thomas (3 APP 142:52)?] Has not been contacted because there is insufficient information to conduct an interview (3 APP 142:1-7).
On 10/31/02 [Hubbard] requested a copy of the case file be faxed to him to assist in the prosecution of a similar case in Tarrant County (3 APP 142:5-7).
[On 2-21-02] At 2128 [i.e., 9:18 p.m.][Mike] was transported to Harris hospital where he was listed in fair condition at [2122, i.e., 9:22 p.m.](3 APP 7:53-54).
On 2-23-02 [Mike] called and had just been released from Harris hospital (3 APP 16:61 & 17:60). On 2/23/02 @ 0325
hrs. [3:25 a.m.] [Goin] was notified of a shooting that occurred on U.S. 377 west and the victim [Rick] would be at Meyers Quick Stop Grocery in Tolar. Upon arrival at this location, care flite had just arrived and transported the victim to Harris hospital in Fort Worth. [Goin] then went to Harris hospital, interviewed [Rick], and collected his shirt as evidence. (3 APP 142:1-5 & 142:31-33).
HARTMANN: Were you taken to a hospital at that point? RICK: Well, they told me they called CareFlite. I didn’t want to go at first, but they talked me into it saying this could be pretty bad [tough little bugger, ain’t he?]. So we went to the Tolar football field, and CareFlite came there and CareFlite picked me up. From there we went to Harris downtown. HARTMANN: Harris Methodist here in Fort Worth? RICK: Yes[.] HARTMANN: How long were you in Harris Methodist? RICK: I believe I got there around 4:00 probably and I left around 7:30 or 8:00 the next morning (3 RR 226:18-227:3)[according to Charla, Mike had just been released around 7:30 that night, then 8 ½ hours later Rick was admitted, but it didn’t line up with the 2-22-02 offense Mindy was claiming I confessed (3 APP 23:28-32 & 80:2-3 & 74:24 & 102:N & 119:41-42). How long did it take Charla to discover or come to settle upon this one?]
On 2-23-02, [Mike] met with [Charla] at the detective office and did positively identify the man who shot me (3 APP 66:13-14)
But see
(1) PHOTOSPREAD RESULTS: #4. Date 2-24-02. Initials MK. Notes: Bart Gains. Viewed By Mindy Keisel. Service # 02132262.Time Photo Spread Shown 1435 [2:35 pm]. Date Photo Spread Shown 2-24-02 (3 APP 85-86),
(2) PHOTOSPREAD RESULTS: #3. Date 2-24-02. Initials TG. Notes: Barton Gains. Viewed By Tarah Green. Service # 02132262.Time Photo Spread Shown 1540 [3:40 pm]. Date Photo Spread Shown 2-24-02 (3 APP 87-88), and
(3) PHOTOSPREAD RESULTS: #4. Date 2-24-02. Initials AH. Notes: CB Smith. Viewed By Andrew Horvath. Service # 02132262.Time Photo Spread Shown 1845 [6:45 pm]. Date Photo Spread Shown 2-24-02 (3 APP 89-90)
The only thing missing, besides Jason's photospread i.e., when Mike tried to identify him (3 APP 18:5-6 & 66:14-15 & 68:1 & 70:1 & 97:20 & 118:4), in this sequence of events is Mike’s at 7:30 pm (3 APP 67), but Charla had Hanlon swear it was on 2-23-02 (3 APP 66:34), not 2-24-02 (after I was arrested). But surely Charla wouldn’t arrest me without a warrant, even if she did believe all those awful things Mindy and Jerri were saying about me and their lives being in imminent danger, right?](Ch. 26, subchapter E.2., ¶ 230, FN 228)).
On 10-16-02 [Hubbard] #236 was asked by [Hartmann] to contact [Goin] to obtain the case file referred above [in] [HCSO] offense #S0201782 (3 APP 153:6-8).
[HARTMANN] had information from [Charla] that there were similarities between the Fort Worth case and the Hood County offense [what the truck?] and felt [Bart] was a strong suspect [did Goin tell Charla he was closing the case? Is that why she approached Hartmann to try and do something about it? If so, Charla moved pretty quick](3 APP 153-154:14-16).
Through a process of several contacts back and forth with [Goin], [Hubbard] obtained the case file on November 19, 2002 (3 APP 153:18-19).
I hope this is him. He needs to be off the street permanently (3 APP 176:13)[she was committed; did she really believe Mindy, Jerri, Jason, etc. that I wanted to kill them, or was she just trying to make good on their (FWPD) earlier promise to Jason’s older brother Larry that if he had just came to them and told them what happened (whoever snitches first gets the better deal--
In re Young, 789 F.3d 518, 525 & 528 (5th Cir. 6-8-15):
Williams also claims that she overheard Page say that going to the police first after getting into trouble results in a “better deal.”
Williams, before the 2001 murders, allegedly heard Page talking about how not to leave fingerprints on bullets and how going to the police before an accomplice will get you a better deal.
that he wouldn’t have been in near as much trouble, i.e., foreign and domestic policy (regime change; topple the leader and in this case, the supposed Ring Leader?].
An examination of [Stephen’s] vehicle revealed a single gunshot entering the tru[n]k area, separating, and two holes penetrating the back seat. There was evidence of a possible second shot glancing off the rear window (3 APP 142:26-28).
Date Assigned 4/3/02. Date of Loss: 4/3/02. Date of Inspection: 4/3/02. Description of Work. Other operations. Replace REAR Seat LINER: Labor 0.5. R&I R&I BACK SEAT. Labor 0.5 (3 APP 151:19, 151:21, 151:35, & 151:36).
HARTMANN: After this all happened, did you ever have an opportunity to either go through your car intentionally looking for anything or did you happen to come up on something that you thought might be related to what had happened in the early morning hours of February 23rd of this Year? STEPHEN: I went looking for something. Nothing was found. We looked -- of course, the bottom of the trunk and the only fragments of the bullet was in [Rick], and something was missing and it was the main bullet. HARTMANN: Did you ever find anything in your car? STEPHEN: Yes[.] HARTMANN: What did you find? STEPHEN: Pretty much the bullet. HARTMANN: Where exactly did you find it? STEPHEN: It was stuck in the hard plastic in the back seat (3 RR 221:2-19).
HARTMANN: When did you find the bullet[?] STEPHEN: It was a month or two later -- HARTMANN: After this all happened? STEPHEN: Yes, ma’am. HARTMANN: Were you able to turn that item over to [Hubbard & Deleon]? STEPHEN: Yes[.] HARTMANN: Was that done within the last couple of weeks [last couple of weeks from when? Naturally, it would be assumed the last couple of weeks from when he found it, right? Surely Hartmann and Foran wouldn’t use some old dusty bullet fragment rendered useless by Stephen’s, and others, no doubt, shenanigans, right? Everything on the up-and-up!]? STEPHEN: Yes[.](3 RR 221:23-222:7).
[Deleon & Hubbard] arranged for a meeting with [Stephen] for 11-26-02. [Stephen] handed Hubbard and Deleon a piece of a jacketed bullet that he stated he found in the trunk of his car since the shooting. This item was placed in an envelope, sealed [how proper] and marked with [Hubbard’s & Deleon’s] initials as evidence and is being secured at the [TCDA]’s Office until [HCSO] can be contacted and/or forensic testing be done (3 APP 153:22-39)[don’t want to contaminate or commingle it now, right? It’s a little too late for that, ain’t it?].
Chain of custody must be established to authenticate an exhibit when there is a possibility of commingling the item with items similar in appearance, when items not having distinctive characteristics have not been marked with distinctive markings by the sponsoring witness, and when necessary to refute a suggestion that the evidence has been tampered with or changed in some manner).
FORAN: After collecting it from [Stephen], what did you do with it? DELEON: After collecting it from [Stephen], I sealed it along with [Hubbard][what like he felt he needed to be seconded] . We sealed it in that envelope and then it was brought to the [TCDA]’s office. FORAN: Did you take it anywhere for testing? DELEON: Yes. FORAN: Where did you take it to? DELEON: We took it to the Fort Worth Police Department Crime Lab [FWPDCL](3 RR 240:5-14)[Great! Because they’re completely 100% independent and not subject to improper meddling, right?][E.g., Coker's and Andy's powder cocaine and speed].
[Deleon & Hubbard] arranged for a meeting with [Stephen] for 11/26/02¦. [Stephen] handed Hubbard and Deleon a piece of a jacketed bullet that he stated he found in the trunk of his car [no mention here of whom all else got to see & touch it, right?](3 APP 153:22-36).
[Deleon & Hubbard] arranged for a meeting with [Stephen] for Tuesday, 11-26-02, 5:00 p.m. in Stephenville, Texas at the Cotton Patch Restaurant (3 APP 153:22-23).
On Tuesday, 11-26-02 [Deleon & Hubbard] traveled to Stephenville, Texas and met with [Stephen](3 APP 153:25-28).
On ¦ [Tuesday] 11-26-02 Stephen handed [Hubbard & Deleon] a piece of jacketed bullet that he stated he found in the trunk of his car since the shooting (3 APP 153:25 & 153:35-36).
FORAN: [D]id you have an opportunity to meet with [Stephen]? DELEON: Yes, I did. FORAN: did they give you any evidence prior to trial? DELEON: Yes, they
did. FORAN: What was that piece of evidence? DELEON: It was a bullet fragment [how prior to trial?](3 RR 239:12-16 & 239:25-240:1).
EVIDENCE: Received at Property Control on November 26, 2002 at 1610 [4:10 p.m.] hours [i.e., right before Hubbard and Deleon meet Stephen, Jheen, Rick, Greg, & Joel Cole Chandler (DOB: 7-17-70) at the Cotton Patch Restaurant in Stephenville] from V. Spencer by R. Fazio.
Submitted by H.P. Gass on Invoice # 0201242.
One (1) Norinco model SKS caliber 7.62 x 39mm rifle, serial number 19165, with magazine.
Received in Crime Lab on December 3, 2002 at 1000 [10 a.m.] from J. Deleon by R. L. Adkins [again];
12. One (1) bullet jacket fragment.
RESULTS:
...
The item 1 is a functional firearm with a single action trigger pull of approximately 3 ¾ pounds. The rifle is rifled with four lands and grooves with a right hand twist.
...
The item 12 bullet jacket fragment was fired from the item 1 rifle.
FORAN: Now, Exhibit No. 33 is a bullet fragment? FAZIO: Yes, it is. [...] FORAN: Did you make an examination of the bullet fragments and compare it to this particular SKS? FAZIO: Yes. I know that [this “bullet fragment”] came from this [SKS]. FORAN: So that’s your conclusion about Exhibit No. 33 [& 36]? FAZIO: Yes (3 RR 247:14-15, & 248:2-3, 249:4-7).
FORAN: Now, State’s Exhibit No. 33, the fragment that you examined and compared to the SKS, the fact that it [is so] small, that doesn't prevent an identification, does it? FAZIO: No. I have seen matches made literally a fraction of a millimeter in size with a great match back. I have seen entire bullets that looked pristine that were unusable for forensic quality [those are usually wrapped with some sort of paper to keep the jacket from picking up the rifling characteristics from the barrel, exactly for that purpose] (3 RR 251:10-17).
FORAN: In this version, is it a semi-automatic? GASS: I believe so. I don’t know. I didn't check for that (3 RR 139:6-8)[trying to make me sound like a terrorist on TV or what?].
FORAN: When you were processing th[is] ¦ SKS, did you process it for fingerprints? FAZIO: Yes, I did. FORAN: Did you find any usable fingerprints? FAZIO: No, I did not (3 RR 247:16-21)[must have not been completely 100% convinced, or even 50% convinced, that it was me who shot Rick, so I’ll give them that for the benefit of the doubt].
[W]e hold that each case must be considered on its own facts, and that convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. Simmons v. United States, 390 U.S. 377, 384 (1968); see also Tegoseak v. State, 221 P.3d 345, 352 (Alaska App. 2009):
In the late 1980s (that is, approximately ten years after the Supreme Court issued its decision in Brathwaite [Manson v. Brathwaite, 432 U.S. 98 (1977)]), Professor Gary L. Wells of Iowa State University noted that photographic lineups could be affected by these same difficulties ” that the police officers who conducted photographic lineups could unwittingly be influencing the witnesses they were interviewing. Professor Wells accordingly proposed that photo lineups (like medical trials) should be conducted using a double-blind procedure. In other words, (1) the lineup should be conducted by an officer who does not know which photograph in the lineup represents the suspect and which photographs are fillers, and (2) because witnesses will naturally assume that any photo lineup will contain a photograph of the person whom the police suspect, the witness must affirmatively be told that the lineup may not contain a photograph of the
perpetrator in his article,
"The Double-Blind Lineup: General Comments and Observations" (2008), Professor Wells notes that police officers can inadvertently (and often unconsciously) influence witnesses by such seemingly innocuous comments as, "I noticed you paused on photograph number 3". Or, when a witness hesitates between two or three photographs, the officer might say to the witness, "Tell me about photograph 2" ” directing the witness's attention to the photograph that the officer knows is the suspect, rather than to one of the fillers. Or, when the witness has picked a filler, the officer might ask, "Is there any other photograph that stands out to you?" ” a question that obviously would not be asked if the witness had selected the suspect.).
For arguments sake I obviously was not given the two week stint that I had just spent at the Mansfield jail and in the photograph used to elicit Jheen’s pretrial identification (3 APP 61)(3 APP 158).
(The date was obliterated for some reason): Enclosed are several photospreads (compare) in case you may need them for some other case. He may be good for several different offenses [what, was she trying to pin additional offenses (cold cases) on me in addition to this one?] He is in position #3¦. I also included photos of his truck. One of my victims described it as gold and two described it as silver or gray [Pewter Gray]. It depends on how the light hits it. Also included were photos of the SKS¦. I hope this is him. He needs to be off the street permanently¦. If he’s good for yours he probably hid [the gun] ¦ and then got the SKS [they must have been able to convince Fazio otherwise, right?].... [G]irlfriend -- Tiffany Philips W/F. 7-14-84. DL XXXXXX. SS XXXXXX. [Address] 5908 Texas Trail Lake Granbury Harbor. Living w/Gaines at this address. Detective Charla Smith. [Office address] 3128 W. Bolt, Fort Worth, TX 76110. 817-877-8401 scram unit after 1400 (3 APP 176:4-9 & 176:13-19).
Carla Stenzel, Creighton Law Review, Eyewitness misidentification: a mistake that blinds investigations, sways juries, and locks innocent people behind bars “God help us, if ever in this great country we turn our heads while people who have not had fair trials are executed.”
Hartmann persuaded the jury during voir dire coaching was perfectly fine, including telling the witnesses where everybody would be seated, including the three police officers, something she and her cocounsel (Foran) did over and over again with each of their witnesses, telling them where and by whom I would be seated beside, then singling that person (the cop) out and asking them to identify me, but Tarah, which suggest to me Hartmann and Jheen discussed the handles on my tool box prior to trial, among other things, to make her seem more credible and me more guilty (2 RR 56:11-58:4).
We turn, then, to the central question, whether under the "totality of the circumstances," the identification was reliable even though the confrontation procedure was suggestive. As indicated by our cases, the factors to be considered in evaluating the likelihood of misidentification include
the opportunity of the witness to view the criminal at the time of the crime,
the witness' degree of attention,
the accuracy of the witness' prior description of the criminal,
the level of certainty demonstrated by the witness at the confrontation, and
the length of time.
(emphasis added); Neil v. Biggers, 409 U.S. at 199
Huizar, 12 S.W.3d at 484, citingAlmanaz v. State, 686 S.W.2d 157, 171 (Criminal Court of Appeals 1985)(which originated, ironically enough, out of the same district court as mine).
Wilson v. Quarterman, No. 4:07-CV-708-A (N.D.T.X.,
Ft. Worth Div., 8-19-09): link to NBC News Article
("Ray,
a well-known Fort Worth criminal defense attorney, testified at a hearing in
federal court last May that was part of a case that has since been sealed.
Documents from the case were obtained by the AP" (6th full paragraph)
