Barnum - Application For Writ of Habeas Corpus

Electronically Filed
At 4/30/2021 12:22 PM
Cheryl Jones,
District Clerk, Brown County, Texas
By:Diane Newton, Deputy
No. __________________________
EX PARTE § IN THE 35th JUDICIAL
§ DISTRICT COURT OF
DONNIE BARNUM § BROWN COUNTY, TEXAS
APPLICATION FOR WRIT OF HABEAS CORPUS

(Pursuant to Art. 11.01, et. seq., Texas Code of Criminal Procedure)
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW Applicant Donnie Barnum, by and through his undersigned
counsel, and files this Application for Writ of Habeas Corpus, by which he asks this
court to reverse and set aside the unlawful judgments of conviction and order of
community supervision entered on April 27, 2006, in cause number CR-18,107,
pertaining to one count of third-degree felony Tampering with Evidence and two
counts of class A misdemeanor Official Oppression, which were obtained in
violation of his state and federal constitutional rights to effective assistance of
counsel. Applicant is illegally restrained in his liberty by the State of Texas, and
there is no lawful right in the person or entity exercising the power; or, if the power
in fact exists, it is exercised in a manner or degree not sanctioned by law.
I. JURISDICTION
This Court’s jurisdiction arises from Article 11.05 of the Texas Code of
Criminal Procedure, which provides: “The Court of Criminal Appeals, the District
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Courts, the County Courts, or any Judge of said Courts, have power to issue the writ
of habeas corpus; and it is their duty, upon proper motion, to grant the writ under the
rules prescribed by law.”
This Application for Writ of Habeas Corpus is filed pursuant to Article 11.072
of the Code of Criminal Procedure, which establishes the procedure for filing a writ
application when a person seeks relief from an order of community supervision.
A showing of a collateral consequence, without more, is sufficient to establish
the necessary confinement or restraint for consideration of an application for writ of
habeas corpus.1 Ex Parte Harrington, 310 S.W.3d 452, 457 (Tex.Crim.App.2010)
(such collateral consequences can include “loss of his job and other suitable
employment opportunities; loss of his right to run for public office; loss of his right
to possess firearms; enhanced penalties for any future convictions; and potential
impeachment of his credibility in future judicial hearings”).
Although Applicant is no longer subject to community supervision
(discharged in 2016), he remains confined and restrained by virtue of the felony
conviction. Applicant cannot possess a firearm under federal law as a result of the
felony conviction. See 18 U.S.C. §922(g)(1). Further, Applicant, who was an elected
1 Unlike Article 11.07, Article 11.072 does not contain a “confinement” or “restraint” requirement
for issuance of the writ of habeas corpus. To the extent that this Court reads a confinement
requirement in the statute, Applicant satisfies this requirement.
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constable in Brown County at the time of the alleged offense, cannot run for public
office as a result of the felony conviction on his record. See Op. Tex. Att’y Gen. No.
KP-0251 (2019). Moreover, Applicant relinquished his peace officer certificate and
was permanently disbarred from law enforcement as a result of the convictions that
are the subject of this application. Applicant is restrained or confined by his inability
to possess firearms, run for office, or be employed as a law enforcement officer. See
Attachment 1, Affidavit of Donnie Barnum, at 1. For the foregoing reasons,
Applicant is confined and restrained by the instant judgments of conviction and order
of community supervision.
II. PROCEDURAL BACKGROUND
At the time of the alleged offense, Applicant was the elected Constable for
Precinct One in Brown County, Texas. On September 14, 2005, the Brown County
Sheriff’s Office was assigned to investigate an altercation that occurred between
Applicant and the complainant, Gary Joyner. 8 RR 54. At the request of District
Attorney Michael Murray on September 19, 2005, the Texas Rangers took over the
investigation from the sheriff’s office. 8 RR 55-56. Sergeant Nicholas Hanna led
the Ranger investigation into the incident, beginning on September 20, 2005. 7 RR
163-64; cf. 8 RR 57 (sheriff’s deputy testifies that their investigation was
relinquished to Ranger Hanna on September 19, 2005).
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On November 10, 2005, Applicant was indicted for two counts of Official
Oppression and one count of Tampering with Evidence. On November 29, 2005,
County Attorney Shane Britton filed an Original Petition for Removal of Officer,
alleging that Applicant should be removed from office on the basis of Official
Misconduct and Incompetence. See Attachment 2, Original Petition for Removal of
Officer. The petition further requested that Applicant be temporarily suspended from
office during the pendency of the petition. The presiding judge of this Court, Judge
Stephen Ellis, held a hearing on the County Attorney’s temporary removal request
on December 20, 2005. Judge Ellis granted the temporary removal request. See
Attachment 3, Order of Temporary Suspension.
On April 17-26, 2006, a jury trial was held on the criminal charges, with Judge
Ellis also presiding over the criminal matter. The jury convicted Applicant of all
three counts. 9 RR 115. On April 27, 2006, pursuant to an agreement with the State
that included a waiver of his right to appeal and an agreement from the State not to
prosecute Applicant for any other alleged offenses that the State had knowledge of
at the time, Applicant agreed to the following punishments on the charges: (1)
Tampering with Evidence: ten years imprisonment probated for ten years, probation
conditions including a $5,000 fine, 160 hours of community service, relinquishment
of Applicant’s peace officer certificate, permanent disbarment from law
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enforcement, and an anger management assessment; (2) Official Oppression: one
day in jail and $100 fine on each of the two misdemeanor counts of Official
Oppression. 10 RR 3-5.
II. FACTUAL BACKGROUND
Gary Joyner, the complainant in this case, testified that he worked briefly for
Applicant as a truck driver and equipment operator a few months before the alleged
incident (September 14, 2005). 3 RR 48, 54-55. A dispute arose over the amount of
Joyner’s payment, leading to Joyner quitting his job with Applicant. 3 RR 60, 72.
Although Applicant paid Joyner $400 for his work, Joyner believed that Applicant
owed him an additional $176. 3 RR 75. Joyner began frequently calling Applicant’s
home and cell phone to inquire about when he would be paid this remaining amount.
3 RR 76-77.
Joyner then began contacting other Brown County officials about the money
that Applicant allegedly owed him. First, he tried to contact Sheriff Bobby Grubbs,
but he could not reach him. 3 RR 80-81. He then contacted Chief of Police Virgil
Cowin. 3 RR 81-87. Joyner also contacted the County Judge, a commissioner, and
the County Attorney. 3 RR 89-90. County Attorney Shane Britton advised him to
speak to the Texas Rangers, so Joyner next talked to Ranger John Nicholas Hanna,
who met with him at the DPS office in Brown County. 3 RR 91. Ranger Hanna
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advised Joyner to file a civil suit, so Joyner proceeded to do so in late June or early
July of 2005. 3 RR 94.
According to Joyner’s testimony, after the filing of the civil suit, Applicant
attempted to intimidate him several times that summer. 3 RR 96-105. Joyner testified
that he alerted Ranger Hanna and Chief Cowin about the situation. 3 RR 97, 105.
Both advised Joyner to go to the nearest police station if Applicant attempted to pull
him over. 3 RR 107-08.
At the hearing on the civil suit, the Justice of the Peace ruled that Applicant
owed Joyner about $100 in back pay, and Applicant paid the judgment. 3 RR 113,
116; see also 4 RR 96.
On September 14, 2005, Joyner testified that at around 9:30 a.m. he drove his
motorcycle to a country store about a mile from his home to buy a breakfast
sandwich. 3 RR 119-20. Joyner traveled down Belle Plain St. on the way back and
turned down a side street (Hackberry) to get home despite the fact that Applicant’s
shop was on Hackberry and he had to bypass other side streets that would have
provided a quicker route to his home. Compare 3 RR 127 (Joyner’s testimony) with
9 RR 133 (defense investigator Tom Swearingen testified that Joyner’s route would
have been 0.2 mile shorter if he turned onto Maple instead of Hackberry).
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Joyner testified that as he passed Applicant’s shop, Applicant walked outside,
stopped, put his hands on his hips, and glared at Joyner. 3 RR 129. Joyner testified
that he next noticed Applicant’s white truck, which Joyner had not seen before,
coming out of the driveway fast. 3 RR 129-30. According to Joyner, Applicant was
driving so fast that the back end of his truck skidded to the left side of the road. 33
RR 132. Also, despite testifying that he saw Applicant glaring at him outside the
shop and then a vehicle came out of the driveway a few seconds later, Joyner testified
that he did not know whether Applicant was the driver of the truck. 3 RR 129.
According to Joyner’s testimony, he was going about 25-30 mph down
Hackberry (about two blocks in length) until he reached a stop sign at the intersection
of Hackberry and Main Blvd. 3 RR 134-35. Joyner testified that he failed to stop at
the stop sign and turned left onto Main Blvd. 3 RR 135, 138. Joyner testified that he
passed his home on Main Blvd. instead of turning in there. 3 RR 139. Joyner then
circled back around the blocks and pulled into his driveway. 3 RR 145. Joyner
testified that he heard the chirping sound of Applicant’s siren when he was stopped
at a stop sign just before pulling into his driveway. 3 RR 145-46. Joyner testified
that he drove straight through the driveway to his front porch, while Applicant
parked behind Joyner’s wife’s pickup truck. 3 RR 148.
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According to Joyner, he locked the aluminum screen door as he went inside
and shut the main door. 3 RR 150-51. He then put his motorcycle helmet on the arm
of the couch near the door as he entered; Joyner’s mother-in-law, Betty Gilbreath,
was sitting on the couch. 3 RR 151-52. Joyner testified that he then went to get his
cordless phone in order to call Chief Cowin, but he was interrupted by Applicant
coming to the front door. 3 RR 146, 163. Joyner testified that Applicant jerked open
the door and entered his home. 3 RR 164. According to Joyner, he told Applicant to
stay outside because he was calling the police. 3 RR 166. Joyner testified that he had
the phone at his ear, and Applicant hit the phone, causing him to drop it. 3 RR 168.
A struggle ensued. 3 RR 169-73. Joyner admitted that he punched Applicant during
the struggle, and Applicant then stopped struggling with him. 3 RR 175-77.
According to Joyner, Applicant never stated that he was under arrest until after
Joyner assaulted Applicant (a peace officer) by punching him several times in the
face. 3 RR 179.
Joyner further testified that Applicant then grabbed Joyner’s helmet and
ripped shirt and threw them outside. 3 RR 178. According to Joyner, Applicant also
grabbed the cordless phone and ran out the door to his truck. 3 RR 178. Joyner
testified that his T-shirt was ripped during the scuffle with Applicant, and Applicant
also ripped Joyner’s necklace off. 3 RR 178-79.
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A few minutes later, Brownwood Police Officers Tracey Edgar and Michael
Sheedy arrived at the scene. 3 RR 181-82. Joyner testified that he related his version
of events to both officers. 3 RR 183-85.
On cross-examination, Joyner testified that he was aware that he had a duty to
stop for a law enforcement officer attempting to pull him over. 3 RR 216. He also
testified that he knew where the DPS office was in Brownwood, as he had been there
twice to visit with Ranger Hanna. 3 RR 231-32. This DPS office was just 0.5 to 0.75
mile from Joyner’s home. 3 RR 233. Joyner also admitted that Applicant was
wearing a hat during the incident, and Applicant’s hat read: “Constable.” 3 RR 272.
Furthermore, Joyner testified that Applicant’s daughter was seated in
Applicant’s truck when he had the conversation with Applicant about the payment
issue a few months before the September incident. 3 RR 72, 247. Joyner estimated
that Applicant’s daughter was about 50-60 feet away from them when they had this
conversation. 3 RR 247.
Applicant’s mother-in-law, Betty Gilbreath, testified that she was inside the
residence at 1611 Main Blvd. when the commotion occurred. 4 RR 4, 7. According
to Gilbreath, Joyner still had his T-shirt on when Applicant left the home following
their struggle. 4 RR 36. She also did not witness the shirt being ripped during the
struggle. 4 RR 45.
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Joyner’s wife, Rhonda Joyner (hereafter, “Rhonda”), testified that she made
an hourly work log for him in preparation for the hearing on the civil suit in Justice
of the Peace court. 4 RR 74. She admitted that according to a time stamp from a job
site, Joyner logged an earlier time for beginning work than he actually started. 4 RR
112.
Tracey Edgar, a Brownwood Police Department sergeant, testified that she
had a confrontation with Applicant on July 1, 2004, which was a little over a year
prior to the alleged incident with Joyner. 4 RR 128, 210. However, the confrontation
and incident were minor enough that she did not write a report. 4 RR 210. Sergeant
Edgar further testified that she issued a standing order for her officers to contact her
if Applicant showed up on one of their calls, and Applicant was to be told that the
officers do not need his assistance. 4 RR 136.
Regarding crime scene investigations, Sergeant Edgar testified that because
evidence “can tell a story,” securing the crime scene and maintaining the integrity
of the evidence are important tasks for her officers to execute correctly. 4 RR 125.
On September 14, 2005, Brownwood Police Department received a call from
Applicant requesting assistance due to a subject fleeing him. 4 RR 136. One of her
officers, Michael Sheedy, was the initial responder, and Sergeant Edgar arrived
about 5-7 minutes later. 4 RR 137. Upon arrival, Sergeant Edgar observed flashing
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red and blue lights on Applicant’s truck. 4 RR 138. While Applicant was talking to
Officer Sheedy, Sergeant Edgar spoke to Joyner. 4 RR 141-42. Joyner informed
Edgar about the dispute with Applicant over the payment issue, along with providing
his account of Applicant’s attempt to pull him over. 4 RR 169-77.
Sergeant Edgar made several observations while at the scene. She located
Joyner’s broken necklace in the far corner of the living room. 4 RR 178. She also
noticed that Joyner’s T-shirt was located at the base of the steps outside, and Joyner’s
helmet was on the ground beside Joyner’s motorcycle. 4 RR 179. Edgar further
testified that there was damage to a half-wall across from the doorway, along with
damage to the wall on the side of the door. 4 RR 180. She instructed Officer Sheedy
to photograph the scene, including injuries to Joyner, damage to the residence,
Applicant’s truck, and Applicant’s injuries. 4 RR 187. Edgar testified that Sheedy
did not photograph Applicant’s injuries because he left prior to Sheedy returning to
the scene with the camera. 4 RR 187. Moreover, Sheedy only photographed one of
the damaged walls. 4 RR 244.
Sergeant Edgar testified that State’s Exhibit 4 depicts the broken necklace;
Officer Sheedy retrieved it from the floor and placed it on the coffee table for the
photograph. 4 RR 188, 239. Edgar further testified that the photographs of the helmet
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and T-shirt accurately reflected their location when she arrived at the scene. 4 RR
188.
Edgar further testified that the officers did not collect the helmet or necklace
as evidence. 4 RR 240. She also testified that Officer Sheedy collected Joyner’s T-
shirt as evidence. 4 RR 240.
Edgar testified that she asked Applicant about his version of events, and
Applicant related that Joyner committed excessive acceleration and speeding when
he passed by Applicant’s shop at Belle Plain and Hackberry. 4 RR 190. Ultimately,
Sergeant Edgar decided to not arrest Joyner because she believed there was no lawful
basis for the traffic stop. 4 RR 205.
Although Sergeant Edgar did not recall whether Applicant stated that Joyner
had “loud pipes” on his motorcycle, she admitted that loud pipes could constitute a
violation of the Disorderly Conduct – Noise statute. 4 RR 251.
Regarding the lack of audio/video evidence from the crime scene, Sergeant
Edgar testified that her vehicle was not equipped with a video camera at the time of
the incident, but she was unsure whether Officer Sheedy’s car contained working
audio/video equipment. 4 RR 246-47.
Regarding the condition of Hackberry St., Sergeant Edgar testified that it was
a gravel road under construction at the time of the incident. 4 RR 272-73. Edgar
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testified that is not possible to squeal a vehicle’s tires on gravel, and when she
investigated the relevant section of the road, she noticed no burn-out marks, skid
marks, or any other indication that Applicant had disturbed the gravel in any way. 4
RR 272-73. However, during Edgar’s interview of Joyner, he told her that he heard
Applicant’s tires squealing on that same gravel road. 4 RR 271. Despite finding no
evidence that Applicant’s tires squealed on Hackberry, Sergeant Edgar failed to
include this finding in her police report. 4 RR 274.
Officer Sheedy testified that when he arrived at the scene, the motorcycle was
in the driveway, while a helmet and T-shirt were on the ground. 4 RR 290-91.
Moreover, Applicant’s flashing lights were activated on the front grille and side
panels of his truck. 5 RR 44. Applicant approached Officer Sheedy and informed
him that he had pursued Joyner to this address, where a confrontation began at the
front steps. 4 RR 293. Sheedy testified that Applicant was unhappy but under
control. 4 RR 293. Sheedy further testified that Applicant stated that he had
attempted to pull over Joyner for speeding and revving his engine. 4 RR 294. Officer
Sheedy testified on cross-examination that revving a motorcycle engine can be
unreasonably loud. 5 RR 24.
Regarding his movement of evidence at a crime scene, Officer Sheedy
testified that he picked up the necklace in order to get a better photograph. 4 RR 304.
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Sheedy also explained that he only photographed one of the damaged walls because
he was unaware that any other walls had been damaged during the struggle. 4 RR
305-06, 5 RR 18-19. Contrary to Sergeant Edgar’s testimony, Officer Sheedy
testified that he was not directed to photograph any walls other than the one he
photographed. 5 RR 19. Sheedy further testified that Applicant left the scene before
he could photograph his injuries. 4 RR 306-07. Also, despite Sergeant Edgar
testifying that Applicant left before Officer Sheedy could return to the scene with
his camera, Officer Sheedy testified that he had the camera in the trunk of his patrol
vehicle. Compare 4 RR 187 with 5 RR 20-21.
The photographs submitted into evidence contained time stamps that were
clearly inaccurate; for example, Photograph #18 reflects that it was taken on January
2, 1998, and Photograph #16 reflects that it was taken on January 3, 1998. See
Attachment 29, Color Photographs of Crime Scene. Although these sequential dates
might indicate that the photographs were taken on different days, Officer Sheedy
testified that he believes the photographs were taken on the same day. 5 RR 23.
On cross-examination, Officer Sheedy testified that Joyner’s home was closer
to Main and Maple than Main and Hackberry. 5 RR 17.
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Regarding his audio/visual equipment, Officer Sheedy testified that he had a
video camera and audio microphone equipped in his unit, but he failed to activate
either. 5 RR 25-26.
Virgil Cowin, the chief of the Brownwood Police Department, testified that
prior to the incident on September 14, 2005, Joyner had approached him about his
civil dispute with Applicant. 5 RR 48-49. Cowin testified that he advised Joyner that
if Applicant tried to pull him over, Joyner was required to stop. 5 RR 52. When
Joyner indicated that he was afraid of stopping for Applicant, Chief Cowin told him
that he should go to a crowded public place and call the police. 5 RR 53.
Regarding the incident on September 14, Chief Cowin testified that he
received information from Sergeant Edgar. 5 RR 55. He determined that the
department would not arrest Joyner, but Applicant was free to do so. 5 RR 56.
County Attorney Shane Britton testified that he had represented Joyner’s wife,
Rhonda, in a civil matter 4-5 years earlier, and as a result, he was acquainted with
Joyner. Transcript of Shane Britton Testimony, at 4. Joyner contacted Britton about
the payment dispute with Applicant. Id., at 5. Over a 2-3 month period, they spoke
3-4 times on the phone and 2-3 times in person. Id.
Britton testified that Joyner asked him what to do if he encountered Applicant
in public, and Britton advised him not to stop if Applicant attempted to pull him
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over. Id., at 9. Instead, Britton instructed Applicant to call 911 if he had a cell phone
on him; if he did not have access to a cell phone, Britton told him to go to a nearby
police department, a public place, or a location with a phone for calling 911. Id., at
9.
Britton further testified that prior to September 14, 2005, he referred Joyner
to Texas Ranger Hanna. Id., at 22. Britton also admitted that he may have spoken to
the District Attorney’s Office about Joyner prior to the September incident. Id., at
24.
C.T. Ham, a Brown County Constable (Precinct 3), testified that Applicant
had worked for him as a deputy constable prior to Applicant becoming an elected
constable. 5 RR 73. Ham received a call from Applicant on September 14, 2005,
regarding the pursuit of a motorcycle that refused to stop. 5 RR 80. When Ham
arrived, his first observation was Officer Sheedy photographing Applicant’s truck.
5 RR 84. Ham further testified that he observed that Applicant’s flashing red/blue
lights were activated. 5 RR 111.
Constable Ham interacted with Applicant at the scene, and Ham observed that
Applicant was wearing a hat with the word “Constable” on it. 5 RR 111. Applicant
then told Constable Ham that the pursuit began when a motorcycle drove past him
“racking very loud pipes or loud noise” and “driving at a high rate of speed.” 5 RR
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86. Regarding the struggle with Joyner, Applicant informed Ham that it began on
the steps of Joyner’s mobile home, and they ended up inside the residence because
Joyner was resisting arrest. 5 RR 88.
Texas Ranger Hanna testified that prior to September 14, 2005, he met with
Joyner regarding his civil dispute with Applicant. 5 RR 155. These meetings
occurred around July 1, 2005, at the DPS office in Brownwood. 5 RR 155-56.
Ranger Hanna recommended to Joyner that he seek a mediator in order to avoid civil
litigation; Hanna suggested that if mediation did not work, then Joyner should file a
lawsuit in small-claims court. 5 RR 157.
Several days later, Joyner contacted Ranger Hanna again, expressing fear over
a potential encounter with Applicant. 5 RR 158, 161. Hanna advised Joyner to go to
a public place or police station if he encountered Applicant. 5 RR 162-63. However,
Hanna also instructed Joyner that Applicant was a law enforcement officer, so
Joyner was required to stop if Applicant attempted to pull him over. 5 RR 163.
Hanna testified that the District Attorney requested assistance from the Texas
Rangers in this case on September 19, 2005, and Hanna became involved on
September 20, 2005. 5 RR 163-64. During his investigation, he visited the relevant
stretch of road on Hackberry, and he found that the street was under construction,
which caused a narrowing of the travel lane. 5 RR 175-76.
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Hanna met with Joyner on September 22, 2005, and he received the ripped T-
shirt from Joyner during this interview. 5 RR 180. However, Hanna did not collect
Joyner’s helmet or necklace because he did not ask Joyner to bring those items with
him. 5 RR 182.
Hanna interviewed Applicant on October 18, 2005. 5 RR 188. Hanna testified
that the interview lasted 1 hour and 39 minutes. 5 RR 197. Outside the presence of
the jury, both parties argued which portions of the audio recording of the interview
were admissible as evidence. 5 RR 219-244. They used a transcript of the interview,
which was the work product of the defense counsel that was transcribed from the
audio recording provided in discovery, rather than the audio of the recording (State’s
Exhibit 28). At the end of the day, this Court permitted the State to take State’s
Exhibit 28 (Hanna’s unredacted audio recording of his interview with Applicant) in
order to make a redacted version that conformed to the court’s evidentiary rulings.
5 RR 245-46.
The next day, Ranger Hanna revealed to the Court that he lost State’s Exhibit
28. 6 RR 27, 30. Ranger Hanna then claimed that he had the original recording
downloaded on his laptop, and he could make a copy of this version, which would
become State’s Exhibit 29. 6 RR 30-31. The redacted recording, State’s Exhibit 30,
was played for the jury. 7 RR 10.
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Regarding Applicant’s written report of the incident, Ranger Hanna testified
that he believed it contained some inconsistencies when compared with Applicant’s
statements during the interview. 7 RR 25-28. Hanna also testified that the evidence
at the crime scene demonstrated that a struggle occurred further inside of Joyner’s
residence, while Applicant had indicated that the struggle occurred on the steps and
at the threshold to the home. 7 RR 29.
On cross-examination, Ranger Hanna admitted that although he took
photographs of the relevant roads, he accidentally deleted them. 7 RR 61.
Christian Weber testified that he had a pay dispute with Applicant in 2000. 7
RR 133-39. As a result, in filed a claim with the Texas Workforce Commission. 7
RR 139. After Weber received a $600 judgment in his favor, Applicant appealed,
which led to the award being reduced to $59. 7 RR 140.
On September 15, 2001, Weber testified that he was in Rising Star for a
homecoming football game. 7 RR 141. Weber alleged that Applicant saw him on his
way into the stadium, and Applicant said, “I’m going to get you.” 7 RR 142-43.
According to Weber, Applicant and the Rising Star chief of police, David Conway,
turned around and snickered at Weber during the football game. 7 RR 144.
Weber testified that near the end of the game, he went to get his car in order
to pull it around to the stadium to pick up his wife and child. 7 RR 146. While Weber
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was driving, he noticed a police vehicle behind him. 7 RR 146. Weber testified that
despite not committing any traffic violations, he pulled over for the police vehicle,
turned off his car, and stepped outside. 7 RR 147. According to Weber’s testimony,
Applicant then jumped on top of him, forcing him to the ground, and struck him in
the back of the head with a mag light. 7 RR 150. Weber testified that Applicant stated
that he was under arrest for running stop signs. 7 RR 150. Weber testified that
Applicant then threw him in the back of the police vehicle, and Applicant drove them
to the Rising Star Police Station with no one else inside the vehicle. 7 RR 154. Weber
testified that he observed Conway at the police station; Conway and Applicant then
drove Weber to the Eastland County Jail. 7 RR 156. Ultimately, Weber was
convicted of Evading Arrest (two days’ jail) and Running a Stop Sign ($100 fine). 7
RR 159-60. After Weber testified, the State rested its case. 7 RR 194.
David Miller testified for the defense. On September 14, 2005, Miller was
building cabinets for Applicant at his shop when he heard a vehicle pass by so loudly
that it rattled the tin of the building. 8 RR 11-12. Miller testified that the vehicle
sounded like it was “hot-rodding a race car.” 8 RR 12. Miller described the sound as
“straight pipes” with the driver “getting on it pretty hard.” 8 RR 12.
Miller testified that Applicant then got into his vehicle and drove off in a
normal manner; Miller did not observe Applicant spin his tires in the manner
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described by Joyner. 8 RR 12. About an hour later, Applicant returned to the shop
and asked Miller to write a statement about his observations from that morning. 8
RR 13. Miller testified that Applicant told him to “write nothing but the truth.” 8 RR
14.
Despite informing Ranger Hanna about the noise rattling the tin of Applicant’s
shop, Ranger Hanna failed to include this detail when he typed out Miller’s statement
for him. 8 RR 26-28. Miller testified that Hanna told him that the rattling probably
had something to do with the building’s acoustics. 8 RR 27.
Miller further testified that he had previously been stopped by a law
enforcement officer on two occasions, including one time by the Brownwood Police
Department, because his vehicle was making an unreasonably loud noise. 8 RR 16-
17. Miller testified that the noise he heard on September 14, 2005, was just as loud
as when he got ticketed for making a loud noise. 8 RR 17-18.
Bryan Thompson, a deputy at the Brown County Sheriff’s Office, testified
that his supervisor asked him to conduct an investigation into Applicant’s case on
September 14, 2005. 8 RR 51, 54. He photographed Applicant’s injuries at the
sheriff’s office, and he asked Applicant to write a report as soon as possible. 8 RR
54. Ranger Hanna then took over the investigation from Deputy Thompson on
September 19, 2005. 8 RR 57.
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David Conway testified regarding the alleged extraneous offense in Rising
Star. Conway testified that he recalls encountering Christian Weber on September
15, 2001. 8 RR 70. Weber was in handcuffs in a patrol car because he had been
arrested by Applicant after the football game. 8 RR 70. Contrary to Weber’s
testimony, Conway testified that this initial encounter with Weber in the patrol car
occurred near the football stadium, as opposed to the police station. 8 RR 72-73.
Conway denied Weber’s allegation that he pointed into the stands and snickered at
him. 8 RR 72. Conway also testified that Weber admitted that he had run from a
police officer, and he witnessed no injuries on Weber. 8 RR 74-75. Moreover, Weber
never complained about any injuries during their trip to the Eastland County Jail,
and he never said that he was hit in the head with a flashlight. 8 RR 79-81.
Tom Swearingen, a private investigator, testified that he measured the
distances of several routes on behalf of the defense. 8 RR 117-19. Swearingen’s
testing revealed the following: (1) Joyner’s route home from getting his breakfast
sandwich at the country store would have been 0.2 mile shorter if he had turned left
on Maple instead of Hackberry; (2) the distance from the country store to the DPS
office was only 1.5 miles; (3) the distance from Joyner’s residence to the DPS office
was only 0.35 mile; (4) Joyner traveled 1.5 miles on the day of the incident, which
is the same number of miles from the country store to the DPS office. 8 RR 133-37.
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Following the close of evidence, the jury returned a verdict convicting
Applicant of all three counts in the indictment. 9 RR 115.
III. RELEVANT LAW
The United States Supreme Court has articulated a two-pronged test for
assessing whether a defendant’s counsel rendered ineffective assistance. See
Strickland v. Washington, 466 U.S. 668, 687 (1984). First, a reviewing court
determines whether counsel’s performance was “deficient.” Strickland, 466 U.S. at
687. To establish that counsel was deficient, the defendant must allege specific
instances where his counsel failed to meet a reasonable professional standard of
competency. Id. A defendant must show by a preponderance of the evidence that
counsel was deficient. Id.
The second prong requires a showing that counsel’s deficiency actually
prejudiced the defendant. Id. Prejudice results when “counsel’s errors were so
serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id.
The Supreme Court further held: “The defendant must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Id., at 694.
This Court should note that the standard for determining prejudice on a claim
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Cheryl Jones,
of ineffective assistance is lower than a “more likely than not” test. “The question
is not whether the defendant would more likely than not have received a different
verdict with the evidence, but whether in its absence he received a fair trial,
understood as a trial resulting in a verdict worthy of confidence.” See Kyles v.
Whitley, 514 U.S. 419, 434 (1995) (interpreting the Brady v. Maryland prejudice
standard, which is the same as the Strickland prejudice standard); see also LaCaze
v. Warden La. Corr. Inst. for Women, 645 F.3d 728, 738 n.2 (5th Cir. 2011) (a finding
of materiality requires only that the alleged error could have undermined the result
of the proceedings). Applicant does not need to prove by a preponderance of the
evidence that his case would have been dismissed in the absence of trial counsel’s
deficiencies; instead, he must prove that trial counsel’s deficient performance
infected the proceedings in a manner that undermines confidence in the outcome.
Id.; see also Strickland v. Washington, 466 U.S. 668, 694 (1984).
Ineffective assistance of counsel claims are analyzed under the “totality of the
representation” standard. “That is, when a reviewing court considers a claim of
ineffective assistance of counsel, it must first analyze all allegations of deficient
performance, decide whether counsel’s conduct was constitutionally deficient, and,
if so, then consider whether those specific deficient acts or omissions, in their
totality, prejudiced the defense.” Ex Parte Nailor, 149 S.W.3d 125, 130
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Cheryl Jones,
(Tex.Crim.App.2004).
The Texas Court of Criminal Appeals adopted the Strickland standard in
Hernandez v. State, 726 S.W.2d 53, 54 (Tex.Crim.App.1986). As a result, the
following grounds for relief should be considered with reference to the two-pronged
standard for assessing claims of ineffective assistance of counsel.
IV. GROUNDS FOR HABEAS CORPUS RELIEF
As set out in the following grounds for relief, Applicant did not receive
effective assistance of counsel, as guaranteed by the Sixth Amendment to the United
States Constitution and Article 1, Section 10 of the Texas Constitution.
GROUND FOR RELIEF NUMBER ONE
TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE BY FAILING TO

OBTAIN THE ORIGINAL COLOR PHOTOGRAPHS OF THE CRIME SCENE; IF HE
HAD OBTAINED THEM, HE WOULD HAVE BEEN ABLE TO SHOW THE JURY
THAT THE BROWNWOOD POLICE OFFICERS MADE EGREGIOUS
INVESTIGATIVE ERRORS.
Relevant Facts
During closing arguments, Applicant’s trial counsel, Keith Woodley
(hereafter, “Trial Counsel”), used the photographic evidence from the crime scene
to argue that the photographs had been taken at different times of the day, implying
that police officers had not properly documented the evidence. 9 RR 67-69.
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However, in an affidavit executed in 2011, Trial Counsel admitted that prior
to trial, he had only viewed black-and-white copies of the color photographs of the
crime scene that were admitted into evidence. See Attachment 4, Affidavit of Keith
Woodley, at 4. Trial Counsel and Applicant did not have an opportunity to examine
the original, color photographs until they were admitted into evidence at trial. Id.
Edward Hueske, an expert in crime-scene investigation, reviewed all of the
evidence in this case, including the color photographs that were taken by Officer
Michael Sheedy at the crime scene. See Attachment 5, Sworn Declaration of Edward
Hueske and CV; see also Attachment 6, Investigation Review and Supplemental
Review of Edward Hueske; see also Attachment 29 (color photographs of crime
scene). Hueske found that the photographs “clearly show movement of evidence
items between photos,” including (1) Joyner’s T-shirt, which was visible on the
ground at the base of the steps in Photographs #6, 7, and 15, but was not present in
Photograph #22; and (2) Joyner’s necklace, which was visible on the coffee table in
Photograph #9 rather than on the living room floor. See Attachment 6, Investigation
Review, at 5. Also, a review of the photographs shows that the sofa has been moved
(present on the left side of the front door in Photograph #5, not present in Photograph
#7, and present on the right side of the of the front door in Photograph #22).
Additionally, Edgar testified at trial as to the locations of the helmet and shirt upon
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her arrival, which was inconsistent with the photographic evidence. 4 RR 178-179.
Had Trial Counsel been aware of the movement of evidentiary items, he would have
prepared to impeach Edgar’s credibility.
As a result of the movement of the evidentiary items, “court testimony as to a
given photo being ‘a true and accurate representation of the scene as it was found’
is tainted.” See Attachment 6, Supplemental Review, at 2. This taint “renders any
testimony relating to the locations of evidence unreliable.” Id. Furthermore, this
movement of evidence can negate the validity of any forensic testing, such as DNA
or fingerprinting. Id. Regardless of whether the movement of items demonstrates
any intentional “scene staging,” the movement of items “speaks to a lack of
familiarity with basic scene documentation protocol/methodology.” Id., at 3.
Hueske also found that the time stamps contain incorrect, varying dates. Id.,
at 2. For example, some show “98 1 2” (Photograph #’s 1-6, 9-14, and 16), while
others show “98 1 3” (Photograph #’s 17-22). Id. Hueske states that the different
time stamps suggest that the officers returned to the scene the next day. Id.
Hueske concluded that the investigation of the scientific evidence was
“entirely inadequate.” See Attachment 6, Investigation Review, at 6
Argument and Authorities
A court reviewing an ineffective assistance of counsel claim may not presume
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that an attorney’s strategy was reasonable unless counsel has thoroughly investigated
the law and the facts relating to the case. Ex parte Welborn, 785 S.W.2d 391, 393
(Tex. Crim. App. 1990). Counsel has an “absolute duty” to perform a thorough
investigation. Ex parte Briggs, 187 S.W.3d 458, 467 (Tex. Crim. App. 2005); see
also Brown v. Sternes, 304 F.3d 677, 693-698 (7th Cir. 2002). This investigation
applies not only to the facts of the case, but also to the governing law, and counsel
must have a firm command of both subjects before they can render reasonably
effective assistance. Lampkin v. State, 470 S.W.3d 876, 910 (Tex. App.—Texarkana
2015, pet. ref’d, untimely filed), citing Ex parte Ybarra, 629 S.W.2d 943, 946 (Tex.
Crim. App. 1982).
Applicant was entitled to an advocate who would investigate the law and facts
relating to his case. Bouchillon v. Collins, 907 F. 2d 589, 597 (5th Cir. 1990). The
record reflects, however, that the required investigation never occurred. Instead,
Trial Counsel simply acquiesced when the State provided inadequate, black-and-
white Xeroxed copies of the original, color photographs. By neglecting to obtain the
original, color photographs, Trial Counsel failed to adequately investigate the facts
applicable to the case, which constitutes deficient conduct. See Ex parte Welborn,
785 S.W.2d 391, 393 (Tex. Crim. App. 1990). Furthermore, because Trial Counsel
failed to investigate the facts, his actions cannot be attributed to a reasonable trial
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strategy. Ex parte Duffy, 607 S.W.2d 507, 526 (Tex. Crim. App. 1980); Ex parte
Brewer, 50 S.W.3d 492, 493 (Tex. Crim. App. 2001).
Examining the color photographs for the first time at trial provided no
opportunity for Trial Counsel and Applicant to prepare a cross-examination and
defensive strategy based on the evidence. If Trial Counsel had obtained the color
photographs in advance of trial, he would have been alerted to the fact that evidence
had been moved. Questioning Officer Sheedy, Sergeant Edgar, and Ranger Hanna
about the movement of evidence would have, at a minimum, demonstrated law
enforcement’s incompetence in managing the crime scene.
Moreover, considering that Applicant was accused of Tampering with
Evidence (i.e., moving evidence), the fact that the police officers moved the evidence
would have created a reasonable doubt in the minds of the jurors regarding who was
actually responsible for the movement of items at the crime scene. Further, in light
of the fact that the trial testimony demonstrated bad blood between Applicant and
the Brownwood Police Department (especially, Sergeant Edgar), the fact that items
had been moved would have allowed Trial Counsel to convincingly argue that the
officers had staged the scene in order to undermine Applicant’s version of events.
When the movement of evidence is combined with the fact that the time stamps
suggest that the officers returned to the scene the next day, the scene-staging
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argument becomes even stronger.
As Edward Hueske’s investigative review demonstrates, if Trial Counsel had
obtained the color photographs in advance of trial, he would have been able to
prepare a searing cross-examination that would have discredited the Brownwood
Police Department’s initial investigation into the altercation between Applicant and
Joyner. In his affidavit, Trial Counsel explained that his failure to request the original
photographs prior to trial handicapped his ability to adequately defend Applicant:
Had I examined the original photographs prior to trial or had I obtained

copies of the original photographs prior to trial, I feel that I would have
been more effective in cross examining the police officers concerning
the photographs. It appeared from the photographs that they were taken
at different times and on different dates. It appeared from the original
photographs that the evidence, such as the motorcycle helmet and
Joyner’s shirt, may have been moved by the officers or someone else.
Although I argued in final argument to the jury the inconsistences in
the photographs as to shadows and time of day the photographs may
have been taken, I did not argue that in one photograph of the front
door, the sofa was clearly visible, and in another photograph of the front
door, the sofa was not visible. I also did not argue to the jury that in
another photograph, the sofa was in a different location. In my opinion,
the trial could have resulted in a different outcome had those matters
been brought to the attention of the jury during cross-examination.
Id., at 5
Because there is a reasonable probability of a different result if Trial Counsel
had obtained the color photographs in advance of trial, this Court should sustain this
ground for relief and grant Applicant a new trial on guilt-innocence.
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GROUND FOR RELIEF NUMBER TWO

ACQUIRE COLOR PHOTOGRAPHS OF THE CRIME SCENE ; IF HE HAD DONE SO,
REASONABLY COMPETENT COUNSEL WOULD HAVE FILED A MERITORIOUS
MOTION TO DISMISS THE CASE ON THE BASIS OF OUTRAGEOUS
GOVERNMENT CONDUCT.
Relevant Facts
The facts pertaining to this ground for relief are the same as the facts
pertaining to the first ground for relief (above), and are repeated here for the sake of
readability.
During closing arguments, Applicant’s trial counsel, Keith Woodley
(hereafter, “Trial Counsel”), used the photographic evidence from the crime scene
to argue that the photographs had been taken at different times of the day, implying
that police officers had not properly documented the evidence. 9 RR 67-69.
However, in an affidavit executed in 2011, Trial Counsel admitted that prior
to trial, he had only viewed black-and-white copies of the color photographs of the
crime scene that were admitted into evidence. See Attachment 4, Affidavit of Keith
Woodley, at 4. Trial Counsel and Applicant did not have an opportunity to examine
the original, color photographs until they were admitted into evidence at trial. Id.
Edward Hueske, an expert in crime-scene investigation, reviewed all of the
evidence in this case, including the color photographs that were taken by Officer
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Michael Sheedy at the crime scene. See Attachment 5, Sworn Declaration of Edward
Hueske and CV; see also Attachment 6, Investigation Review and Supplemental
Review of Edward Hueske; see also Attachment 29 (color photographs of crime
scene). Hueske found that the photographs “clearly show movement of evidence
items between photos,” including (1) Joyner’s T-shirt, which was visible on the
ground at the base of the steps in Photograph #’s 6, 7, and 15, but was not present in
Photograph #22; and (2) Joyner’s necklace, which was visible on the coffee table in
Photograph #9 rather than on the living room floor. See Attachment 6, Investigation
Review, at 5. Also, a review of the photographs shows that the sofa has been moved
(present on the left side of the front door in Photograph #5, not present in Photograph
#7, and present on the right side of the of the front door in Photograph #22).
Additionally, Edgar testified at trial as to the locations of the helmet and shirt upon
her arrival, which was inconsistent with the photographic evidence. 4 RR 178-179.
As a result of the movement of the evidentiary items, “court testimony as to a
given photo being ‘a true and accurate representation of the scene as it was found’
is tainted.” See Attachment 6, Supplemental Review, at 2. This taint “renders any
testimony relating to the locations of evidence unreliable.” Id. Furthermore, this
movement of evidence can negate the validity of any forensic testing, such as DNA
or fingerprinting. Id. Regardless of whether the movement of items demonstrates
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any intentional “scene staging,” the movement of items “speaks to a lack of
familiarity with basic scene documentation protocol/methodology.” Id., at 3.
Hueske also found that the time stamps contain incorrect, varying dates. Id.,
at 2. For example, some show “98 1 2” (Photograph #’s 1-6, 9-14, and 16), while
others show “98 1 3” (Photograph #’s 17-22). Id. Hueske states that the different
time stamps suggest that the officers returned to the scene the next day. Id.
Hueske concluded that the investigation of the scientific evidence was
“entirely inadequate.” See Attachment 6, Investigation Review, at 6.
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Cheryl Jones,
Crim. App. 1982).
Applicant was entitled to an advocate who would investigate the law and facts
relating to his case. Bouchillon v. Collins, 907 F. 2d 589, 597 (5th Cir. 1990). The
record reflects, however, that the required investigation never occurred. Instead,
Trial Counsel simply acquiesced when the State provided inadequate, black-and-
white Xeroxed copies of the original, color photographs. By neglecting to obtain the
original, color photographs, Trial Counsel failed to adequately investigate the facts
applicable to the case, which constitutes deficient conduct. See Ex parte Welborn,
785 S.W.2d 391, 393 (Tex. Crim. App. 1990). Furthermore, because Trial Counsel
failed to investigate the facts, his actions cannot be attributed to a reasonable trial
strategy. Ex parte Duffy, 607 S.W.2d 507, 526 (Tex. Crim. App. 1980); Ex parte
Brewer, 50 S.W.3d 492, 493 (Tex. Crim. App. 2001).
Examining the color photographs for the first time at trial provided no
opportunity for Trial Counsel and Applicant to prepare a cross-examination and
defensive strategy based on the evidence. If Trial Counsel had obtained the color
photographs in advance of trial, he would have been alerted to the fact that evidence
had been moved.
In his affidavit, Trial Counsel explained that his failure to request the original
photographs prior to trial handicapped his ability to adequately defend Applicant:
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Cheryl Jones,
Had I examined the original photographs prior to trial or had I obtained

copies of the original photographs prior to trial, I feel that I would have
been more effective in cross examining the police officers concerning
the photographs. It appeared from the photographs that they were taken
at different times and on different dates. It appeared from the original
photographs that the evidence, such as the motorcycle helmet and
Joyner’s shirt, may have been moved by the officers or someone else.
Although I argued in final argument to the jury the inconsistences in
the photographs as to shadows and time of day the photographs may
have been taken, I did not argue that in one photograph of the front
door, the sofa was clearly visible, and in another photograph of the front
door, the sofa was not visible. I also did not argue to the jury that in
another photograph, the sofa was in a different location. In my opinion,
the trial could have resulted in a different outcome had those matters
been brought to the attention of the jury during cross-examination.
Id., at 5
Upon discovering this evidence that Officer Sheedy and Sergeant Edgar
tampered with the evidence at the crime scene, reasonably competent counsel would
have filed a motion to dismiss on the basis of outrageous government conduct. To
be so outrageous as to bar prosecution, the government’s conduct must offend “that
‘fundamental fairness, shocking to the universal sense of justice,’ mandated by the
Due Process Clause of the Fifth Amendment.” United States v. Russell, 411 U.S.
423 (1973); see also United States v. Johnson, 68 F.3d 899, 902 (5th Cir.1995). An
allegation of outrageous conduct focuses on the government’s actions with respect
to the charged offense. United States v. Diggs, 8 F.3d 1520, 1525 (10th Cir.1993).
The police officers’ movement of items at the crime scene and subsequent
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Cheryl Jones,
decision to blame Applicant for this movement (i.e., charging him with Tampering
with Evidence) is the type of conduct that offends any notion of “fundamental
fairness.” It is so shocking to the conscience that the only remedy is to dismiss the
prosecution against the defendant who has been subjected to such a dishonest and
malicious tactic. If Trial Counsel had adequately investigated the facts by requesting
the original, color photographs of the crime scene and then moved to dismiss on the
basis of the outrageous conduct of the officers’ tampering with the crime scene, there
is a reasonable probability that this Court would have barred prosecution in this case.
This Court should overturn the convictions and render judgments of acquittal.
GROUND FOR RELIEF NUMBER THREE

MOVE FOR A DIRECTED VERDICT ON COUNT ONE OF THE INDICTMENT
(OFFICIAL OPPRESSION) AFTER THE STATE FAILED TO PRESENT ANY
EVIDENCE THAT JOYNER WAS SUBJECTED TO AN ARREST.
Relevant Facts
The first count of the indictment (Official Oppression) alleged as follows:
Donnie Barnum, hereinafter styled Defendant, on or about the 14th day

of September, 2005, and before the presentment of this indictment, in
the County and State aforesaid, did then and there intentionally subject
Gary Lee Joyner to arrest that the defendant knew was unlawful, and
the defendant was then and there acting under color of his office as a
public servant, namely, Brown County Constable.
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Cheryl Jones,
At trial, Joyner’s testimony was unequivocal that he was never subjected to
arrest. According to Joyner, Applicant did not say that Joyner was under arrest at the
beginning of their altercation. 3 RR 163. Applicant also did not tell Joyner he was
under arrest during the alleged altercation inside Joyner’s residence. 3 RR 167.
Joyner testified that he would have heard it if Applicant had said the word “arrest,”
and during the altercation, Applicant never used the phrases “you’re under arrest” or
“place your hands behind your back.” 3 RR 168, 170-71. Applicant did not mention
arresting Joyner until after Joyner punched him a couple of times. 3 RR 179-80.
When Applicant told Joyner that he was under arrest, Applicant left the residence
and did not further engage with Joyner. 3 RR 180.
At the close of the State’s case, Trial Counsel failed to move for a directed
verdict on Count One of the indictment on the basis that there was no evidence that
Joyner was subjected to an arrest.
A trial court decides a motion for directed verdict using the same standard as
a legal sufficiency review. Hines v. State, 383 S.W.3d 615, 623 (Tex. App.—San
Antonio 2012, pet. ref’d). Under a legal sufficiency review, courts “view[] the
evidence in the light most favorable to the prosecution, [to determine] whether any
rational trier of fact could have found the essential elements of the crime beyond a
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Cheryl Jones,
reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); see also Merritt
v. State, 368 S.W.3d 516, 525 (Tex. Crim. App. 2012); Adames v. State, 353 S.W.3d
854, 860 (Tex. Crim. App. 2011).
Here, considering the evidence in the light most favorable to the State, there
was no evidence that Applicant ever subjected Joyner to arrest. Although there was
some testimony that Applicant stated that Joyner was under arrest after Joyner
punched Applicant two times in the face, the evidence was unequivocal that
Applicant abandoned the encounter with Joyner upon making this statement. 3 RR
180.
Because no trier of fact could have found beyond a reasonable doubt that
Applicant committed an essential element of Count One, this Court would have
granted a motion for directed verdict. Trial Counsel rendered ineffective assistance
by failing to make this motion. This Court should reverse the conviction for Count
One and order a judgment of acquittal.
GROUND FOR RELIEF NUMBER FOUR

MOVE FOR A CHANGE OF VENUE DESPITE RAMPANT PRETRIAL PUBLICITY
THAT TAINTED ANY POTENTIAL JURY POOL FROM BROWN COUNTY .
Relevant Facts
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Cheryl Jones,
Applicant’s case was well-known in Brown County due to pretrial publicity,
which included local and regional media sources, that regularly featured Applicant’s
mugshot, along with negatively-skewed articles regarding the accusations See
Attachment 1, Affidavit of Donnie Barnum; see also Attachment 7, Affidavit of
Marlon Massey Regarding Venue; see also Attachment 8, Affidavit of Kenneth
Makuta. Due to rampant and prejudicial publicity, Applicant asked Trial Counsel to
file a motion for a change of venue, but Trial Counsel refused to file the motion. See
Attachment 1, Affidavit of Donnie Barnum.
Despite this evidence of pretrial publicity, Trial Counsel failed to file a motion
to change venue, thus forfeiting Applicant’s right to be heard on this issue.
According to Trial Counsel, he advised Applicant not to file a motion for change of
venue because it was unlikely that the trial judge (the Honorable Stephen Ellis)
would grant the motion. See Attachment 4, Affidavit of Keith Woodley, at 2.
With respect to the law governing motions to change venue, TEX. CODE CRIM.
PROC., ART. 31.03 provides, in pertinent part, that:
(a) A change of venue may be granted in any felony or misdemeanor case

punishable by confinement on the written motion of the defendant,
supported by his own affidavit and the affidavit of at least two credible
persons, residents of the county where the prosecution is instituted, for
either of the following causes, the truth and sufficiency of which the
court shall determine:
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Cheryl Jones,
1. That there exists in the county where the prosecution is commenced

so great a prejudice against him that he cannot obtain a fair and
impartial trial; and
2. That there is a dangerous combination against him instigated by

influential persons, by reason of which he cannot expect a fair trial.
As described above, there were at least two credible witnesses who could attest that
either of these conditions was present in Applicant’s case, thus necessitating a
change of venue.
In order to prevail on a motion to change venue based on media publicity,
Texas law requires a defendant to prove that the publicity has produced so much
prejudice in the community that “the likelihood of obtaining a fair and impartial jury
is doubtful.” Nethery v. State, 692 S.W.2d 686, 694 (Tex. Crim. App. 1985), cert.
denied, 474 U.S. 1110, 106 S.Ct. 897, 88 L.Ed.2d 931 (1986). A defendant has the
burden to show that the publicity on his case is pervasive, prejudicial, and
inflammatory, and he must demonstrate actual, identifiable prejudice attributable to
pretrial publicity on the part of the community from whom the jury is chosen.
Deblanc v. State, 799 S.W.2d 701, 704 (Tex. Crim. App. 1990), cert. denied, 501
U.S. 1259, 115 L.Ed.2d 1075, 111 S.Ct. 2912 (1991); Faulder v. State, 745 S.W.2d.
327, 338 (Tex. Crim. App. 1987). Media attention and publicity, in and of
themselves, do not automatically establish prejudice or require a change of venue.
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Cheryl Jones,
Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 6 L.Ed. 751 (1961). Instead, the
test is whether outside influences affecting the community’s climate of opinion as to
a defendant are inherently suspect. Hathorn v. State, 848 S.W.2d 101, 109 (Tex.
Crim. App. 1992).
Here, if Trial Counsel had filed the motion for change of venue, the evidence
would have established that the pretrial publicity produced such prevalent prejudice
in the community that the likelihood of obtaining a fair and impartial jury was
doubtful. Because Applicant was an elected official, the criminal charge and removal
petition received extensive media attention in Brown County. See Attachment 1,
Affidavit of Donnie Barnum; see also Attachment 7, Affidavit of Marlon Massey
Regarding Venue; see also Attachment 8, Affidavit of Kenneth Makuta. Most of this
publicity was prejudicial to Applicant, and his suspension from office following the
temporary removal hearing tainted the jury pool, as they believed Applicant must
have been guilty of something if he was suspended from his elected position as
Constable.
If Trial Counsel had filed a motion for change of venue, there is a substantial
likelihood of success. Even if Trial Counsel did not believe that Judge Ellis would
grant the motion, he should have advised Applicant that he should not waive this
issue for appeal. Because Applicant would have likely prevailed if Trial Counsel had
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Cheryl Jones,
filed a motion for change of venue, Trial Counsel rendered ineffective assistance,
and this Court should grant a new trial on guilt-innocence in a county where
Applicant can obtain a fair and impartial jury pool.
GROUND FOR RELIEF NUMBER FIVE
TRIALCOUNSEL RENDERED INEFFECTIVE ASSISTANCE BY FAILING TO

MOVE TO RECUSE THE TRIAL JUDGE AFTER HE PRESIDED OVER THE
TEMPORARY REMOVAL HEARING.
Relevant Facts
The elected judge of this Court, the Honorable Stephen Ellis, presided over a
temporary removal hearing on December 20, 2005. During this hearing, he heard
testimony from Ranger Hanna that essentially summarized and previewed the State’s
criminal case against Applicant. See Attachment 9, Transcript of Temporary
Removal Hearing. Judge Ellis then presided over Applicant’s criminal trial just five
months later. Trial Counsel failed to file a motion to recuse Judge Ellis in both the
civil and criminal proceedings.
Rule 18a of the Texas Rules of Civil Procedure permits any party in a case to
“file with the clerk of the court a motion stating grounds why the judge before whom
the case is pending should not sit in the case.” Rule 18a applies to criminal cases.
Arnold v. State, 853 S.W.2d 543, 544 (Tex. Crim. App. 1993).
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Cheryl Jones,
Rule 18b(b)(1) mandates that a judge shall recuse himself in any proceeding
in which…his impartiality might reasonably be questioned. See Qffutt v. United
States, 348 U.S. 11, 14 (1954) (“justice must satisfy the appearance of justice”); see
also McClenan v. State, 661 S.W.2d 108, 109 (Tex. Crim. App. 1983); U.S. CONST.
AMDT. 14; TEX. CONST. ART. 1, §§13 & 19. Further, Rule 18b(b)(2) mandates
recusal when the judge has a personal bias or prejudice concerning the subject matter
or party.
Bias sufficient to warrant recusal generally stems from an “extrajudicial
source” and results in an outcome on the merits based on information “outside of
what the judge learned from participating in the case at hand.” Abdygapparova v.
State, 243 S.W.3d 191, 198 (Tex.App.—San Antonio 2007, pet. ref’d); Roman v.
State, 145 S.W.3d 316, 321 (Tex.App.—Houston [14th Dist.] 2004, pet. ref’d).
Here, Judge Ellis acquired information about Applicant’s case from an outside
source, as the hearing on the civil removal petition was completely separate from the
criminal case. By hearing Ranger Hanna’s testimony and investigative conclusions
prior to the criminal trial and finding this information carried enough credibility to
temporarily suspend Applicant from his office as an elected official, Judge Ellis
developed a bias against Applicant. Even if such an actual bias cannot be proven,
Judge Ellis’ impartiality might reasonably be questioned as a result of presiding over
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the temporary removal hearing and granting the County Attorney’s request to
suspend Applicant from serving as Constable.
Moreover, Texas law seeks to prevent this type of situation from occurring in
the first place. Pursuant to TEX. GOV. CODE §74.059(c)(4), a district judge “shall if
an election contest or a suit for the removal of a local official is filed in his court,
request the presiding judge to assign another judge who is not a resident of the county
to hold a regular or special term of court in that county to dispose of the suit.” Based
on this law, Judge Ellis never should have presided over the removal suit in the first
place. Trial Counsel failed to file a recusal in the civil proceeding, even though there
were valid arguments for Judge Ellis’ recusal. By illegally presiding over the
removal suit, Judge Ellis acquired knowledge about Applicant’s case that either
biased him or created a situation in which his impartiality might reasonably be
questioned. Furthermore, Applicant directly requested that Trial Counsel attempt to
have Judge Ellis recused from the criminal trial due to his involvement with the civil
suit, yet Trial Counsel failed to do so. In an affidavit executed in 2011, Woodley
states “Donnie Barnum discussed with me and Lance Wyatt as to whether a motion
to recuse Honorable Stephen Ellis should be filed since Judge Ellis presided in cause
number CV0511515 and had temporarily removed Constable Barnum from office
pending the criminal trial. Lance Wyatt and I did not file a motion to recuse Judge
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Ellis from presiding in the criminal trial.” See Attachment 4, Affidavit of Keith
Woodley; see also Attachment 1, Affidavit of Donnie Barnum.
Trial Counsel’s failure to file a motion to recuse constituted deficient conduct.
Because there is a reasonable likelihood that it would have been granted, Trial
Counsel rendered ineffective assistance, and this Court should grant Applicant a new
trial on guilt-innocence.
GROUND FOR RELIEF NUMBER SIX

ADEQUATELY INVESTIGATE THE FACTS IN A MANNER THAT WOULD HAVE
DEMONSTRATED THE IMPOSSIBILITY OF JOYNER’S STORY ABOUT
APPLICANT’S PURSUIT OF HIM ON THE DAY OF ALTERCATION.
Relevant Facts
Trial Counsel employed a private investigator, Tom Swearingen, but he did
not ask him to re-create the pursuit in order to discover whether Joyner’s version of
events was plausible. See Attachment 10, Investigative Report of Tom Swearingen.
During the investigation for this writ application, Swearingen conducted
testing to determine the plausibility of Joyner’s story. He discovered that it would
take at least 29 seconds in order for Applicant to have done the following: (1) stand
outside his shop, (2) run to his truck, (3) start his truck’s engine, and (4) drive to the
back edge of his shop on Hackberry Street. See Attachment 10, Investigative Report
of Tom Swearingen. Meanwhile, even if Joyner was driving 5 mph less then he
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testified to at trial, he would have reached the stop sign at Main Blvd. within 20
seconds of passing Applicant’s shop. See 3 RR 133. As a result, Joyner’s motorcycle
would have reached the stop sign 9 seconds before Applicant’s truck reached
Hackberry Street. Applicant then would have had to travel another 539 feet to arrive
at the stop sign at Main Blvd. Even assuming that Applicant was travelling at 75
mph (110 feet per second), which is an almost preposterously high speed on the
gravel road, it would have taken another 4.9 seconds for Applicant to reach the stop
sign.
Despite the fact that Joyner would have had to have been stopped at the stop
sign for at least ten seconds before Applicant’s truck approached him at the stop
sign, Joyner testified that he never stopped at the stop sign due to fear that Applicant
might run him over. 3 RR 135.
Further, Joyner testified that he heard “tires squealing” or a commotion behind
him as he approached a yield sign at the intersection of Hackberry and Waco streets,
and when he looked back, Applicant’s pickup was “sideways in the road behind
him.” It is 173 feet from the back edge of the shop to the intersection at Waco Street,
which would have taken Joyner approximately seven seconds to travel at the speed
he testified to. It would have been physically impossible for Applicant to have been
“sideways in the road” in a mere 7 seconds; rather, it would have taken
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approximately 29 seconds for him to have run to his pickup, get in, start it, and just
make it out into the street based on Swearingen’s investigation. All of this makes
Joyner’s story completely incredible and physically impossible.
the facts relating to the case. Ex parte Welborn, 785 S.W.2d 391, 393 (Tex. Crim.
App. 1990). Counsel has an “absolute duty” to perform a thorough investigation. Ex
parte Briggs, 187 S.W.3d 458, 467 (Tex. Crim. App. 2005); see also Brown v.
Sternes, 304 F.3d 677, 693-698 (7th Cir. 2002). This investigation applies not only
to the facts of the case, but also to the governing law, and counsel must have a firm
command of both subjects before they can render reasonably effective assistance.
Lampkin v. State, 470 S.W.3d 876, 910 (Tex. App.—Texarkana 2015, pet. ref’d,
untimely filed), citing Ex parte Ybarra, 629 S.W.2d 943, 946 (Tex. Crim. App.
1982).
Applicant was entitled to an advocate who would conduct an adequate factual
investigation. Bouchillon v. Collins, 907 F. 2d 589, 597 (5th Cir. 1990). The record
reflects, however, that the required factual investigation never occurred. Instead,
Trial Counsel allowed Joyner to spin a tale that, like Superman, Applicant was able
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to exit his shop, run to his truck, start the engine, and reach Joyner 539 feet away
within just a few seconds.
Armed with Swearingen’s investigative testing of the scene of this incident,
Trial Counsel would have been able to effectively impeach Joyner on the
impossibility of his story. Based on the amount of time it would have taken Applicant
to reach the stop sign, Joyner had to have been lying about one of these two “facts”:
(1) he was travelling 25-30 mph down Hackberry towards Main Blvd., or (2) he
rolled through the stop sign without stopping because he was so scared that
Applicant might run him over. If Joyner was travelling substantially slower than the
speed to which he testified, then it is possible he did not have to stop at the stop sign
before Applicant came upon him; but if that was the case, then Trial Counsel would
not only have impeached Joyner’s credibility but also convincingly argued to the
jury that Joyner was goading Applicant into pursuing him.2 On the other hand, if
Joyner was travelling at the speed at which he testified (25-30 mph), then he would
have had to stop at the stop sign for a minimum of 15 seconds before Applicant
approached him; again, if that was the case, then Trial Counsel would have both
2 Investigator Swearingen drove 5 mph slower than the slowest speed Joyner testified to driving;
in order for Joyner to have reached the stop sign (539 feet away from the back edge of Applicant’s
shop) around the same time as Applicant (about 35 seconds after Joyner passed Applicant’s shop,
assuming Applicant was driving 75 mph), Joyner would have had to have been travelling at 15.4
ft/s, which is just 10.5 mph.
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impeached Joyner’s credibility and effectively argued that Joyner was waiting for
Applicant in order to goad him into a pursuit. Either way, the State’s theory of the
case would have been completely discredited.
Moreover, during the interview with Ranger Hanna, when discussing how and
why the pursuit began, Ranger Hanna made the statement that Joyner “goaded” and
“baited” Applicant into the pursuit. See Attachment 11, Transcript of Interview of
Donnie Barnum by Texas Ranger John (Nick) Hanna, at 54 (lines 13-21) & 57 (lines
16-17). These statements from Ranger Hanna line up with Joyner’s actions on the
day of the incident and indicate collusion between Joyner and the other parties
involved in this case in order to frame Applicant and have him removed from office.
Armed with this evidence, Trial Counsel would have had grounds to file a
meritorious motion to dismiss on the basis of entrapment. Pursuant to TEX. P. CODE
§8.06:
(a) It is a defense to prosecution that the actor engaged in the conduct

charged because he was induced to do so by a law enforcement agent
using persuasion or other means likely to cause persons to commit the
offense. Conduct merely affording a person an opportunity to commit
an offense does not constitute entrapment.
(b) In this section “law enforcement agent” includes personnel of the

state and local law enforcement agencies as well as of the United States
and any person acting in accordance with instructions from such agents.
The Court of Criminal Appeals has explained how courts should determine
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whether a defendant was “induced” to commit a crime:
The issue for determination, then, is what effect the agent’s inducement
would likely have upon persons generally. The defendant's criminal
disposition is immaterial to this inquiry. So, under the test of Section
8.06, once the inducement element is established the trial court need
consider only whether the methods of persuasion used were likely to
induce persons not ready and willing to commit the crime to engage in
the conduct charged. Where the inducement attains that level of
intensity, entrapment has occurred regardless of whether the particular
defendant would have committed the crime with less or no
encouragement.
Bush v. State, 611 S.W.2d 428, 430 (Tex. Crim. App. 1980)
TEX. CODE CRIM. PROC. ART. 28.01, §1(9) specifically provides that the trial
court can make a pretrial determination on the entrapment defense. While the
defense has the burden of producing evidence to raise the defense of entrapment at
pretrial hearing, the State has the burden of disproving this defense beyond a
reasonable doubt. Bush, 611 S.W.2d at 430. If the State fails to disprove entrapment
beyond a reasonable doubt, then the remedy is for the court to dismiss the case with
prejudice (the same effect as an acquittal by a jury). See id., at 431.
Here, the evidence of a conspiracy against Applicant establishes a motive on
the part of law enforcement to use Joyner as an agent to induce Applicant to pursue
him. Joyner’s behavior in getting Applicant’s attention (through an exhibition of
speed and an unreasonable noise) was designed to induce Applicant to pursue him,
and then he ensured that Applicant would catch up to him by either driving
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excessively slowly after passing Applicant’s shop or stopping at the stop sign at
Main Blvd. in order to wait for Applicant to approach him. Any other similarly
situated law-enforcement officer would have done exactly what Applicant did: they
would have pursued Joyner and then attempted to arrest him based on his refusal to
pull over, according to their rights and duties as peace officers operating within the
law.
If Trial Counsel had adequately investigated the facts and filed a motion to
dismiss on the basis of entrapment, this Court would have granted the motion and
barred further prosecution. This Court should reverse the judgments of conviction,
dismiss the charges against Applicant, and bar further prosecution.
In the alternative, Trial Counsel rendered a deficient performance in failing to
conduct an adequate investigation into the facts of the pursuit, and there is a
reasonable probability of a different result if he had conducted this investigation. As
a result, Trial Counsel rendered ineffective assistance, and this Court should grant a
new trial on guilt-innocence.
GROUND FOR RELIEF NUMBER SEVEN

OBJECT TO THE ADMISSION OF JOYNER’S T-SHIRT INTO EVIDENCE DESPITE
THE LACK OF A RELIABLE CHAIN OF CUSTODY.
Relevant Facts
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At trial, there was conflicting testimony regarding Joyner’s T-shirt, which
Applicant had allegedly ripped off of him and then thrown down the stairs in order
to create the impression that the struggle had occurred outside of Joyner’s residence.
3 RR 177-78. However, according to Joyner’s mother-in-law, Joyner still had the T-
shirt on when Applicant left the residence at the conclusion of the altercation. 4 RR
36.
Regarding the ensuing crime scene investigation, Sergeant Edgar testified that
Officer Sheedy collected Joyner’s T-shirt as evidence. 4 RR 240. Officer Sheedy, on
the other hand, testified that he did not take possession of the T-shirt. 4 RR 31. Joyner
himself testified that he believed the officers on scene the day of the incident had
taken the shirt as evidence. 3 RR 210.
However, Ranger Hanna testified that he had met with Joyner on September
22, 2005 (eight days after the alleged altercation), and he received the ripped T-shirt
from Joyner during this interview. 5 RR 180. Ranger Hanna further took Joyner at
his word that the shirt had not been laundered 5 RR 182.
Trial Counsel did not object to the admission of the T-shirt into evidence on
the basis of an unreliable chain of custody despite the fact that there was evidence
that someone had tampered with the T-shirt. See Attachment 1, Affidavit of Donnie
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Barnum; see also 9 RR 67 (during closing arguments, Trial Counsel states that the
T-shirt appears to have some rips and that someone used scissors to cut it even more).
Crim. App. 1982).
Because Trial Counsel failed to investigate the relevant law (as it relates to
the necessity of a reliable chain of custody), his actions cannot be attributed to a
reasonable trial strategy. See Ex parte Duffy, 607 S.W.2d 507, 526 (Tex. Crim. App.
1980); see also Ex parte Brewer, 50 S.W.3d 492, 493 (Tex. Crim. App. 2001).
Applicant was entitled to an advocate who would investigate the law relating to his
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case. See Bouchillon v. Collins, 907 F. 2d 589, 597 (5th Cir. 1990). The record
reflects, however, that Trial Counsel simply acquiesced in the admission of the T-
shirt into evidence when he could have excluded it through an objection on the basis
of an unreliable chain of custody.
Proof of chain of custody authenticates evidence under TEX. R. EVID. 901(a).
Druery v. State, 225 S.W.3d 491, 503 & n.30 (Tex. Crim. App. 2007). Generally,
the State satisfies chain of custody when evidence establishes where the chain begins
and ends, especially if it ends in a laboratory. Mitchell v. State, 419 S.W.3d 655, 659
(Tex. App.-San Antonio 2013, pet. ref’d). Although complaints about gaps in the
chain of custody go to the weight, as opposed to the admissibility, of the proffered
evidence, courts consider evidence of tampering when making their preliminary
determination of whether the sponsoring party has sufficiently proven the
authenticity of the evidentiary item. See Lagrone v. State, 942 S.W.2d 602, 617
(Tex.Crim.App.1997); see also Druery v. State, 225 S.W.3d 491, 503
(Tex.Crim.App.2007).
Investigative expert Edward Hueske reviewed the evidence regarding the
collection of the T-shirt, and he determined that “[t]here was apparently no chain of
custody from the time of the incident on September 14, 2005, until September 22,
2005, when Ranger Hanna reported receiving it from Mr. Joyner.” See Attachment
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6, Supplemental Review, at 4. Hueske’s review also points out that despite the lack
of a chain of custody between the altercation and Ranger Hanna’s receipt of the T-
shirt from Joyner eight days later, Ranger Hanna stated that the shirt had not been
laundered since the incident. Id., at 3-4.
Given the complete lack of a reliable chain of custody and the fact that there
is reason to believe that the T-shirt might have been tampered with after the
September 14th incident, Trial Counsel rendered a deficient performance by failing
to object to the admission of the T-shirt based on the State’s failure to sufficiently
authenticate it. Without the T-shirt in evidence, the State’s evidence would have
been substantially weaker with respect to Count Two (Official Oppression based on
subjecting Joyner to mistreatment), as the State would not have been able to provide
the jury with the visual of a ripped T-shirt. The State’s case also would have been
weakened with respect to Count Three (Tampering with Evidence) because the jury
would not have been able to examine the T-shirt that had allegedly been altered,
destroyed, or concealed. Because there is a reasonable probability of a different
result, Trial Counsel rendered ineffective assistance. This Court should order a new
trial on guilt-innocence.
GROUND FOR RELIEF NUMBER EIGHT

INTERVIEW AN EYEWITNESS, MARLON MASSEY, REGARDING HIS
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OBSERVATIONS OF JOYNER’S TRAFFIC OFFENSES.
Relevant Facts
Prior to the incident between Joyner and Applicant, Marlon Massey stopped
by Applicant’s shop on Belle Plain. See Attachment 12, Affidavit of Marlon Massey
Regarding Eyewitness Account. As Massey pulled into the parking lot of the shop,
he saw Joyner’s motorcycle turn from Belle Plain onto Hackberry Street. Massey
describes his subsequent observations:
As the motorcycle drove past [Applicant’s] shop, it suddenly sped up

very fast, and it was extremely loud. I saw [Applicant] walking out of
his shop after the motorcycle went by. [Applicant] then got into his
pickup, and it appeared to me that he was going to stop the motorcycle.
Id.
Prior to trial, Applicant informed Trial Counsel that he should interview
Massey about his recollection from the day of the incident. See Attachment 1,
Affidavit of Donnie Barnum. However, Trial Counsel failed to interview Massey.
See Attachment 12, Affidavit of Marlon Massey Regarding Eyewitness Account.
Massey describes his willingness to assist Applicant and the lack of interest from
Applicant’s trial attorneys:
I was subpoenaed as a witness to this incident by [Applicant’s]

attorneys during his trial. I sat in the hallway at the courthouse for two
weeks waiting to be called to testify. Neither of Donnie’s attorneys ever
came to talk to me, or made any kind of contact with me before, during,
or after the trial.
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Id.
Sternes, 304 F.3d 677, 693-698 (7th Cir. 2002).
reflects, however, that the required factual investigation never occurred. If Trial
Counsel had interviewed Massey, he would have discovered pertinent information
that corroborated Applicant’s version of events, while undermining Joyner’s story.
Whether Joyner committed a traffic-related offense was critical to the State’s
charges of Official Oppression, along with the State’s theory underlying the
Tampering with Evidence charge (i.e., that Applicant tampered with evidence
because he knew that he had illegally pursued Joyner).
Upon hearing Massey’s testimony, any reasonable juror would have doubted
Joyner’s version of events. Because there is a reasonable probability of a different

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result if Trial Counsel had conducted an adequate investigation by interviewing
Massey, Trial Counsel rendered ineffective assistance, and this Court should order
a new trial on guilt-innocence.
GROUND FOR RELIEF NUMBER NINE

INTERVIEW AN EYEWITNESS , KIM MANGLBERGER, REGARDING HER
OBSERVATIONS OF THE ALLEGED PAY DISPUTE BETWEEN APPLICANT AND
JOYNER.
Relevant Facts
A few months prior to the September 14th altercation, Applicant’s daughter,
Kim Manglberger, witnessed the alleged argument between Applicant and Joyner at
the barn regarding payment. See Attachment 13, Affidavit of Kimberly Manglberger.
While Joyner described Applicant as belligerent and intimidating during this
confrontation, Manglberger describes Applicant’s behavior as “calm and
respectful,” and “[t]here was never any indication to me that any sort of negative
interaction had taken place between them.” Compare 3 RR 62-64 with Attachment
13, Affidavit of Kimberly Manglberger, at 1-2.
Trial Counsel was aware that Manglberger was a witness to this incident, but
he failed to interview her. See Attachment 13, Affidavit of Kimberly Manglberger,
at 2; see also Attachment 1, Affidavit of Donnie Barnum, at 6 (establishing that he
informed Trial Counsel about Manglberger’s presence at the conversation with

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Joyner regarding payment). Trial Counsel even questioned Joyner in a manner that
established that Manglberger was nearby when the conversation about payment
occurred. 3 RR 247. However, Trial Counsel failed to investigate Manglberger’s
account of the incident and failed to call her as a witness despite her willingness to
testify.
Sternes, 304 F.3d 677, 693-698 (7th Cir. 2002).
Counsel had interviewed Manglberger, he would have discovered pertinent
information that contradicted Joyner’s version of events.
The State used Joyner’s version of the pay dispute to cast Applicant as an
unreasonable employer who refused to pay his employees, thus prejudicing
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Applicant in the eyes of the jury. Upon hearing Manglberger’s testimony, any
reasonable juror would have doubted Joyner’s story, undermining the credibility of
his entire testimony. Moreover, the jury would have been less likely to have been
prejudiced against Applicant if they heard reliable testimony that contradicted the
biased picture that the State had painted of Applicant. Because there is a reasonable
probability of a different result if Trial Counsel had conducted an adequate
investigation by interviewing Manglberger, Trial Counsel rendered ineffective
assistance, and this Court should order a new trial on guilt-innocence.
GROUND FOR RELIEF NUMBER TEN

INVESTIGATE THE AUTHENTICITY OF THE AUDIO RECORDING OF
APPLICANT’S INTERVIEW WITH RANGER HANNA; IF TRIAL COUNSEL HAD
CONDUCTED AN ADEQUATE INVESTIGATION , HE WOULD HAVE
DISCOVERED THAT THE RECORDING HAD BEEN ALTERED, AND THIS
INFORMATION WOULD HAVE PROVIDED THE BASIS FOR FILING A
MERITORIOUS MOTION TO DISMISS FOR OUTRAGEOUS GOVERNMENT
CONDUCT.
Relevant Facts
During Ranger Hanna’s interview of Applicant on October 18, 2005,
Applicant offered his supplemental report to Ranger Hanna, but Ranger Hanna
refused to accept it. See Attachment 1, Affidavit of Donnie Barnum, at 1. This
exchange was not contained in either the transcript of the interview or the audio CD
of the interview (State’s Exhibit 29, which replaced the “lost” State’s Exhibit 28).
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See Attachment 11, Transcript of Interview of Donnie Barnum by Texas Ranger
John (Nick) Hanna.
Applicant informed Trial Counsel about the missing portion of the audio
recording, but Trial Counsel did not investigate the authenticity of the recording. See
Attachment 1, Affidavit of Donnie Barnum, at 2. Following the trial, an audio
engineering expert, Phil York, examined a portion of the audio recording where an
interruption in the conversation seemed obvious (it was too cost-prohibitive to
analyze the entire recording). See Attachment 14, Affidavit of Phil York. At just past
the 24-minute mark on the recording, York discovered “two locations close to each
other in which there is evidence that edits have likely taken place.” Id. The edits
occurred during this sentence, with an (*) marking the location of the possible edits:
“And this is not (*) this is a supplement that (*) I did write a supplement to this, but
I didn’t realize – I knew the phone crashed….” See id. York explained his findings:
In both instances there were brief regions in the background room

ambience with a duration of approximately thirty sub-frames
(approximately one eightieth of a second), which look different than the
surrounding waveform material. This duration is approximately the
same as a digital edit done in a professional audio workstation would
be.
Further, nearby sections of digital audio background noise jump from a

minus 20 decicel [sic] level to a minus 24 decibel level and the [sic]
back again to a minus 20 decibel level. This would not normally occur
in the background noise of a typical closed-door continuous interview.
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Thus, it opens the door to the possibility of the material having been
edited.
Id.
Applicant’s cell phone records conclusively demonstrate that the recording
was altered. Ranger Hanna’s investigative report and his testimony at trial indicates
that the interview began at 1:36 p.m. See Attachment 15, Investigative Report of
Ranger Hanna, at 53. According to Ranger Hanna’s testimony, the interview lasted
1 hour and 39 minutes. 5 RR 197. Thus, the interview should have ended around
3:15 p.m. However, upon comparing Applicant’s cell phone records to the recording,
the interview must have ended at 3:47 p.m. The analysis below demonstrates why.
Applicant received phone calls at 1:45 p.m. and 1:50 p.m., according to the
time stamps on his cell phone records. See Attachment 16, Applicant’s Cell Phone
Records. These calls are not audible on the recording. A third call that occurred at
2:57 p.m. can be heard ringing on the audio recording, but it is not answered. While
this call is not acknowledged on the transcript, it can be heard on the portion of the
recording covered by page 54 of the transcript. See Attachment 11, Transcript of
Interview of Donnie Barnum by Texas Ranger John (Nick) Hanna, at 54; see also
Attachment 16, Applicant’s Cell Phone Records; see also Attachment 17, Audio
Recording of Interview of Donnie Barnum by Ranger Hanna. The fourth call
occurred at 3:20 p.m. and is documented on page 84 of the transcript when Applicant
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calls Richard Glasgow and asks him to come meet with Ranger Hanna. See
Attachment 1, Affidavit of Donnie Barnum (establishing that the phone number of
325-642-3386 belongs to Glasgow); see also Attachment 11, Transcript of Interview
of Donnie Barnum by Texas Ranger John (Nick) Hanna, at 80-83; 103 (statements
about Ranger Hanna interviewing Glasgow after the interview with Applicant). The
fifth call at 3:35 p.m. is not reflected on the transcript, but it can be heard during the
conversation that occurs on page 99. The sixth call at 3:39 p.m. is reflected on page
104 of the transcript. The seventh call is reflected on page 112 of the transcript as
“telephone rang,” and the time stamp is 3:47 p.m. On the audio recording, Applicant
can be heard answering this call as he is leaving Ranger Hanna’s office. About two
minutes later, Glasgow and Hanna can be heard entering the office, and Hanna stops
the recording at around 3:49 p.m. Thus, the amount of time that passed from
beginning to end (1:36 p.m. until 3:49 p.m.) was 2 hours and 13 minutes, which is
34 minutes longer than reflected on the audio recording, which is only 1 hour and
39 minutes in length.
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Sternes, 304 F.3d 677, 693-698 (7th Cir. 2002).
Counsel had investigated the authenticity of the audio recording of Applicant’s
interview with Ranger Hanna, he would have discovered that the recording had been
intentionally altered by law enforcement.
Upon discovering this alteration, reasonably competent counsel would have
filed a motion to dismiss on the basis of outrageous government conduct. To be so
outrageous as to bar prosecution, the government’s conduct must offend “that
‘fundamental fairness, shocking to the universal sense of justice,’ mandated by the
Due Process Clause of the Fifth Amendment.” United States v. Russell, 411 U.S.
423 (1973); see also United States v. Johnson, 68 F.3d 899, 902 (5th Cir.1995). An
allegation of outrageous conduct focuses on the government’s actions with respect
to the charged offense. United States v. Diggs, 8 F.3d 1520, 1525 (10th Cir.1993).
To alter an official recording and then pass it off as authentic is the type of
conduct that offends any notion of “fundamental fairness.” It is so shocking to the
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conscience that the only remedy is to dismiss the prosecution against the defendant
who has been subjected to such a dishonest and malicious tactic. If Trial Counsel
had adequately investigated the recording’s authenticity and then moved to dismiss
on the basis of the outrageous conduct of altering it, there is a reasonable probability
that this Court would have barred prosecution in this case. This Court should
overturn the convictions and render judgments of acquittal.
In the alternative, even if this Court would have denied a motion to dismiss
on the basis of outrageous government conduct, Trial Counsel would have been able
to effectively impeach Ranger Hanna’s testimony if he had learned through his
investigation that the recording had been altered. Hanna had testified that the
recording was a fair and accurate one that had not been altered, so this testimony
would have been discredited if Trial Counsel had discovered proof of the alteration.
See 5 RR 199. Furthermore, Ranger Hanna testified that he did not believe Applicant
had ever written a supplemental report, and this testimony would have been
impeached with evidence that the recording had been altered to remove the portion
of the recording in which Applicant offered Hanna his supplemental report. See 7
RR 13; see also Attachment 1, Affidavit of Donnie Barnum, at 1.
Because there is a reasonable probability of a different result if Trial Counsel
had investigated the authenticity of the audio recording, Trial Counsel rendered
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ineffective assistance, and this Court should order a new trial on guilt-innocence.
GROUND FOR RELIEF NUMBER ELEVEN

OBTAIN THE AUDIO/VIDEO RECORDINGS OF THE POLICE OFFICERS WHO
INVESTIGATED THE ALTERCATION AT JOYNER’S RESIDENCE.
Relevant Facts
On the day of the incident between Applicant and Joyner, officers from the
Brownwood Police Department responded to the alleged victim's residence due to
Applicant's request for backup after the pursuit. These officers, Sergeant Edgar and
Officer Sheedy, both operated patrol vehicles supplied by the Brownwood Police
Department. At that time, these vehicles were equipped with in-car audio/video
recording equipment that, when activated, would have captured video to the front of
and inside the vehicle, and would have recorded audio from the officers and anyone
that they were speaking with via a body-worn microphone. It was standard BPD
protocol for each officer to test all of the equipment on their patrol vehicles, such as
radars, lights, sirens, audio/video recording equipment, etc, prior to the beginning of
their shift. If any piece of equipment was dysfunctional, it was to be documented by
the officer and they would often switch to a different unit if one was available to
avoid any issues. See Attachment 13, Affidavit of Kimberly Manglberger, at 2.
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Prior to trial, no audio/video evidence from either officer was made available
in discovery by the prosecution. Additionally, Trial Counsel completely neglected
to inquire about this evidence and failed to pursue its acquisition. This evidence
would have been vital to the impeachment of both Brownwood police officers. The
recorded audio would have shown numerous inconsistencies and blatant lies
contained in the officers’ own reports, as well as direct perjuries at trial.
Sergeant Edgar testified that when she arrived on scene, she located Officer
Sheedy talking to Applicant in the yard. 4 RR 137. She also testified that she stood
and listened to the conversation between Officer Sheedy and Applicant prior to being
asked by Joyner to come speak with him. 4 RR 141. However, dispatch recordings
show that Officer Sheedy had already completed his conversation with Applicant
and run a check on Joyner’s driver’s license number prior to Sgt. Edgar arriving on
scene, as she asked him over the radio “are you in the trailer?”, and Officer Sheedy
responded with directions to his location. While the dispatch recordings alone prove
this one bit of testimony to be untrue, had Trial Counsel obtained the in-car
audio/video evidence, there would have been no question that both of the officers
lied in their reports as well as in their testimony. See Attachment 21, Dispatch
Recordings, at Audio File 3.
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Sternes, 304 F.3d 677, 693-698 (7th Cir. 2002).
Counsel had requested the audio/video recordings and diligently pursued their
acquisition, he would have been able to effectively impeach Sergeant Edgar’s and
Officer Sheedy’s accounts of the incident. By failing to do so, Trial Counsel rendered
a deficient performance, and there is a reasonable probability of a different result if
he had properly investigated the case by obtaining the audio/video recordings. As a
result, this Court should grant Applicant a new trial on guilt-innocence.
GROUND FOR RELIEF NUMBER TWELVE

OBJECT TO THE DISTRICT ATTORNEY’S MISCONDUCT IN
MISREPRESENTING THE EVIDENCE THAT THEY OFFERED AT TRIAL .
GROUND FOR RELIEF NUMBER THIRTEEN
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APPLICANT’S STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO DUE

PROCESS WERE VIOLATED BY THE STATE’S KNOWING USE OF FALSE,
MATERIAL TESTIMONY.
Factual Background
In order to understand the context for the material misrepresentations by the
prosecuting attorneys in this case, an understanding of the political and personal
tensions between Applicant and the District Attorney’s office is essential.
In January 2004, Applicant began running for Constable of Precinct One,
which was a position then held by Jim Bitter. Applicant informed District Attorney
Michael Murray that Bitter filed a false statement concerning where he lived, which
is a felony. However, DA Murray declined to take any action on the matter, and
Bitter withdrew his candidacy shortly thereafter. DA Murray subsequently went on
to carry Bitter’s commission as a peace officer. See Attachment 1, Affidavit of
Donnie Barnum, at 3.
About six months later, in June 2004, DA Murray declined to prosecute a
person who committed the crime of Theft of Service against Applicant by failing to
pay $10,162 for work performed by Applicant. Id.
In January 2005, Applicant took office as the elected constable. Soon
afterward, Applicant advised County Attorney Shane Britton and County Judge Ray
West that the county’s method of paying its constables was illegal. Ultimately, in
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August 2005, the Commissioners’ Court set the constables’ salaries at amount that
varied between precincts; Applicant was given a yearly salary of $14,000 with a
$4,000 budget for expenses. Id., at 3-4.
In March 2005, Applicant contacted Ranger Hanna and requested him to
investigate Brown County Inspector Rita Thompson and the permitting office for
Official Oppression by bringing numerous false charges against him concerning
alleged septic system violations. Ranger Hanna later advised applicant that the
county attorney, Shane Britton, “didn't want to mess with it” and that he should “just
do what they want,” regardless of the fact that they had no legal authority to impose
extra regulations. See Attachment 1, Affidavit of Donnie Barnum, at 4-5.
Also in August of 2005, Applicant discovered that the commissioner for
Brown County Precinct #1, Steve Adams, had his personal bulldozer repaired at the
John Deere dealership on the county’s account, which amounted to approximately
$26,000.00. While investigating the matter, Applicant confronted Adams about the
theft, which he admitted to committing. Adams was prosecuted for this offense
approximately six years later by the Texas Attorney General’s office. See
Attachment 1, Affidavit of Donnie Barnum, at 4.
Due to Applicant’s insistence that the Brown County elected officials root out
corruption, several of these elected officials, including DA Murray, desired to have
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Applicant removed from office, as evidenced by their filing of a removal petition
against Applicant prior to the indictment on the underlying criminal case even being
unsealed (thus, depriving Applicant of notice of the charges prior to the filing of this
removal petition). Id., at 4. The elected officials began actively undermining
Applicant. For example, after Applicant arrested Judge West’s secretary for public
intoxication in May 2005, County Attorney Britton dropped the charge. Then, when
Applicant stopped Judge West’s friend on a Friday, he received a call on Monday
from Commissioner Steve Adams regarding the traffic stop. However, after the
elected officials were advised that Applicant’s audio/video recordings substantiated
the stops, the complaints ceased. Id.
At trial, County Attorney Shane Britton testified that he had told Joyner not
to stop if Applicant attempted to pull him over. Precinct 2 Judge Bob Wall testified
that both he and the County Attorney refused to accept any charges filed by
Applicant. All of these actions are unlawful, and Judge Wall was later issued a public
reprimand by the Texas Commission on Judicial Conduct. See Attachment 1,
Affidavit of Donnie Barnum; see also Attachment 18, Public Reprimand of Bob Wall.
Following Applicant’s conviction in this case, DA Murray gave him ten
minutes to decide whether to accept a plea offer for sentencing; if he did not accept,
Murray threatened to file four additional charges, three of which would have been
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felonies. See Attachment 1, Affidavit of Donnie Barnum, at 4-5. Even after the
conviction, DA Murray continued to act antagonistically towards Applicant,
including refusing to consider an early discharge from probation in March 2009. Id.,
at 5. Applicant eventually filed a motion for early discharge in late August 2011,
with the cooperation of his probation officer. On September 29, 2011, Commissioner
Steve Adams was indicted for Theft by Deception for the money he stole from the
county that Applicant had discovered in 2005. See Attachment 23, Indictment of
Steven Adams. On September 30, 2011, DA Murray requested that Texas Ranger
Danny Crawford investigate Applicant in connection with a charge of “Conspiring
to Circumvent Secret Deliberations,” which does not exist in the Penal Code as an
offense. See Attachment 24, Investigative Report of Ranger Danny Crawford. The
specific statute that was referenced in relation to the charge was taken from the Texas
Government Code and does not apply to members of the general public, as Applicant
was at the time of the alleged violation. Id. This fictitious charge stemmed from a
recording of an illegally closed commissioner's court meeting, in which the sole
focus was discussing the collusive efforts to remove the tax assessor-collector. See
Attachment 25, Transcript of Commissioner’s Court Meeting (“collusion”
specifically referenced on page 13). The recording also contained admissions of
criminal activity and felony offenses committed by several officials, including the
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county judge and county attorney, during the course of the investigation of the tax
assessor collector. See Attachment 25, Transcript of Commissioner’s Court Meeting,
at 2, 18, and 25. On October 21, 2011, DA Murray filed a motion to revoke
Applicant’s probation on the basis of this false charge, and the Assistant District
Attorney handling the case, ADA Sam Moss, stated to Applicant’s attorney that
Applicant would be arrested at the hearing on his early discharge motion on October
26, 2011, if he did not withdraw the motion. See Attachment 26, Motion to Revoke
Probation. Under this coercive threat, Applicant agreed to withdraw the motion for
early termination.
Even so, an arrest warrant was issued on this Conspiring to Circumvent Secret
Deliberations charge on November 3, 2011. Id. Six days later (November 9), the
probation department conducted a “compliance search” of Applicant’s residence,
during which the officer coerced Applicant’s daughter, Kim Manglberger, into
opening her own safe that contained firearms. See Attachment 19, Audio Recording
of Compliance Search. Despite the firearms being Manglberger’s separate property,
the fact that Applicant was not even present on the property at the time of the alleged
offense, and the fact that law enforcement left the guns in the safe at the residence
which provides additional evidence that they were not in Applicant’s possession,
DA Murray filed an amended Motion to Revoke Probation on November 15, 2011,
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adding ten charges of unlawful possession of firearms by a felon, even though his
evidence did not establish the elements of possession (i.e., “actual care, custody,
control, or management,” as defined by TEX. P. CODE, Sec. 1.07(a)(39). See
Attachment 1, Affidavit of Donnie Barnum, at 6; see Attachment 27, Amended
Motion to Revoke Probation. Despite the Conspiring to Circumvent Secret
Deliberations charge being dismissed on the date of the probation revocation hearing
(December 8, 2011), DA Murray moved forward on the probation revocation
motion, and the judge found that Applicant had “inadvertently violated his
probation” on the possession of firearms charges, and sentenced him to 60 days
confinement while continuing him on probation. See Attachment 28, Transcript of
Motion to Revoke Hearing, at 191-192 off official transcript. Upon returning to
community supervision after being released from confinement, Applicant asked his
probation officer, Gordon Bearden, why he would sign documents alleging a
fictitious charge. Bearden responded “I just did it on what they wanted me to do it
on”, referring to the DA’s office. See Attachment 20, Audio Recording of Meeting
with Gordon Bearden, at 6:35.
Applicant submits that the conduct of DA Murray and other elected officials
during the time before and after the alleged Joyner incident demonstrates a personal
animus against Applicant that colored the entire criminal proceedings.
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Applicant was deprived of his state and federal rights to due process as a result
of the State’s use of false, material testimony. See U.S. CONST. AMDT. 5 & 14; see
also TEX. CONST. ART. I, §19. To constitute a violation of due process under the
federal constitution, the State must knowingly use false testimony. See Ex parte
Ghahremani, 332 S.W.3d 470, 477 (Tex. Crim. App. 2011). However, Texas courts
allow applicants to prevail on due-process claims even when the State has
unknowingly used false testimony. Id, at 478. A due process violation may arise not
only through false testimony specifically elicited by the State but also by the State's
failure to correct testimony it knows to be false. Id., at 477. The knowing use of false
testimony violates due process when there is a “reasonable likelihood” that the false
testimony affected the outcome, meaning that the evidence must have been material.
Id.
A person commits the offense of perjury if, with intent to deceive and with
knowledge of the statement’s meaning, he makes a false statement under oath or
swears to the truth of a false statement previously made and the statement is required
or authorized by law to be made under oath. See TEX. PENAL CODE §37.02(a).
Moreover, to the extent that Trial Counsel was aware (or should have been
aware) of the State’s misrepresentations of the evidence, Trial Counsel rendered
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ineffective assistance of counsel.
The following instances qualify as material representations:
1. Misrepresentation of Dispatch Recordings
The prosecutor stated during opening statement that the dispatch recording
was only two transmissions, one with no siren and one with an audible
siren at the driveway of the residence. 3 RR 24. There were actually four
transmissions, demonstrating a completely different picture of the traffic
stop, as explained below. See Attachment 21, Dispatch Recordings, at
Audio File 1.
The DA continually misrepresented the dispatch recording as being only

two transmissions when, in fact, four transmissions made by Applicant
were contained in the recording, all during the initial pursuit while both
vehicles were in motion. The DA consistently referred to the “last
transmission” as the only portion of the recording where a continuous siren
is audible. However, there is a clearly audible siren on both the third and
fourth transmissions made by Applicant.
Prior to the dispatch recording being offered into evidence in court, Joyner
testified that he had not heard a siren at any point during the pursuit, but
that he had heard a “chirping noise” immediately before pulling into his
residence around the area of the stop sign at Main and Maple. Joyner also
testified that he had stopped at the intersection of Main and Maple at the
stop sign and looked back over his shoulder to determine who was
pursuing him. Joyner testified that he was able to see Applicant with a
“mean look” on his face. 3 RR 145.
When introducing the dispatch recording into evidence, the DA

intentionally represented the dispatch recording as being two
transmissions; the first being when Applicant called in the pursuit, and the
second being where Applicant advised they were pulling into a residence.
Throughout the remainder of the trial, the DA consistently referenced the
“two transmissions”, but never acknowledged or addressed the actual third
transmission, which would have discredited a large portion of Joyner’s
testimony.
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In the first transmission, Applicant states his call number (61) and
addresses the Brownwood Dispatch (Brownwood). After receiving a
response from dispatch, Applicant completes a second transmission in
which he advises that he is attempting to stop a motorcycle that was failing
to yield. Applicant then received another response from dispatch and was
asked what his location (“20”) was, to which he responded with a third
transmission stating that he was at Main and Maple. During this third
transmission, a continuous siren is clearly audible on the recording.
Applicant then makes a fourth transmission stating that they were pulling
into a residence, in which a continuous siren is also clearly audible on the
recording. See Attachment 21, Dispatch Recordings, at Audio File 1.
By never acknowledging this third transmission and continually

attempting to draw the jury’s focus to the fourth transmission as being the
only transmission where a siren is audible on the recording, the DA was
able to deceive the jury and make Joyner’s perjured testimony seem
plausible. However, when Joyner’s fictitious recitation of the pursuit is
compared with the indisputable time-stamped recording, his story begins
to fall apart and the true intent of the DA comes to light.
The DA’s intent to mislead the jury becomes even more apparent as he has
the Texas Ranger testify concerning the pursuit and the dispatch recording.
The DA knowingly elicited perjured testimony from the Ranger by having
him testify that there was no audible siren on the dispatch recording until
the last transmission. Ranger Hanna further testified that the only time the
siren was audible was during the transmission where Applicant was
advising that they were checking out at the subject’s residence. 5 RR 173.
The DA let this testimony stand, even though he knew it was false and
contradicted his own evidence.
On a subsequent day during the trial, Hanna was called back to the stand
and the DA questioned him further concerning the dispatch recording. The
DA asked Hanna how much time had elapsed between “the first
transmission from Donnie Barnum where he indicates a vehicle is fleeing
from him, until the second transmission when he indicates that he’s pulling
into the driveway”. Hanna responded that he had timed it on his watch and
it was seven seconds, which is false. The DA then asked if Hanna heard
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anything during the first transmission that remotely sounded like a siren;
Hanna responded that he had not. The DA then asked if he had heard
anything that sounded like a siren in the second transmission, and Hanna
responded that he had. The DA then asked Hanna if Applicant had given
him an approximate distance that he traveled where his siren was
continuously activated, and if that would be consistent with the dispatch
recording. Hanna responded that it was between two-and-a-half to four-
and-a-half blocks, and the 7 seconds of continuous siren activations heard
on the recording would not be consistent with that because he had timed
how long it would take to drive two blocks, and that was 24 seconds. 7 RR
42.
There are numerous issues with this testimony, such as the fact that Hanna
did not specify at what speed he timed driving the distance of two blocks,
but the main issue is that he testified to a measure of time that was not
consistent with the dispatch recording. In reality, from the initial call-in to
dispatch until the last transmission ends, the total time that elapsed was 27
seconds. From the end of the second transmission where no siren is audible
to the beginning of the third transmission where the siren is audible, the
elapsed time was 7 seconds. From the beginning of the third transmission
to the end of the fourth transmission is 8 seconds. This would mean that
the possible time frame the siren could have been continuously activated
would have been between 8 and 15 seconds, give or take. However, the
total time the siren was activated during the pursuit would not be
accurately reflected on the dispatch recording as Applicant was not
transmitting during the entirety of the pursuit, yet the DA and Hanna
repeatedly attempted to portray it in that manner to the jury. It was the
DA’s intent, along with Hanna’s cooperation, to mislead the jury into
believing Joyner’s fictitious tale rather than the facts as proven by the
evidence. See Attachment 21, Dispatch Recordings, at Audio File 1.
2. Misrepresentations in Joyner’s Testimony
a. Joyner testified that he “hadn’t gone past the shop very far” when he
saw Barnum “coming out of the driveway, driving real fast.” 3 RR 132.
As explained in Ground for Relief #6, Joyner’s version of events was
physically impossible, and the prosecution should not have permitted
this misrepresentation of the evidence to the jury.
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b. Joyner testified that he was driving approximately 25-30 mph when

Barnum was behind him, fearing being run over but not trying to get
away. 3 RR 142. As explained in Ground for Relief #6, Joyner’s version
of events was physically impossible, and the prosecution should not
have permitted this misrepresentation of the evidence to the jury.
c. Joyner testified that he had time to stop and look back over his shoulder
to positively identify who was behind him, yet up until that point had
feared being run over. 3 RR 144-45. As explained in Ground for Relief
#6, Joyner’s version of events was physically impossible, and the
prosecution should not have permitted this misrepresentation of the
evidence to the jury.
d. Joyner testified that he locked the screen door, then described the
damage to the screen door. However, photographic evidence does not
show the damage described by Joyner. 3 RR 150, 197, 202, 203, 205.
e. Regarding how the police officers came to be in possession of the torn

T-shirt Joyner was wearing the day of the incident, Joyner testified, “I
think [Edgar and Sheedy] picked it up out of the yard.” Despite DA
Murray knowing this was a false statement due to Ranger Hanna’s
report detailing that Joyner brought the shirt with him to the DPS office
to give his statement on September 22nd, DA Murray continued with
questioning, stating “regardless, this is the same one from that day.”
Compare 3 RR 210-11 with 5 RR 180. This misrepresentation created
the false impression with the jury that Joyner’s T-shirt was in the same
condition as on the day of the incident, when, in fact, over a week had
passed, giving Joyner ample opportunity to tamper with the evidence.
3. Misrepresentations in Sergeant Edgar’s testimony
a. Sergeant Edgar stated that Officer Sheedy requested her assistance on

the call, which was proven false by evidence (dispatch recordings).
Compare 4 RR 137 with Attachment 21, Dispatch Recordings, at Audio
File 2. This misrepresentation is important because Sergeant Edgar’s
testimony implies that she went to the scene as a regular course of duty,
when, in fact, she went to the scene for the specific purpose of
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encountering Applicant.
b. Sergeant Edgar testified that when she arrived on scene, she located
Officer Sheedy talking to Applicant in the yard. 4 RR 137. She also
testified that she stood and listened to the conversation between Officer
Sheedy and Applicant prior to being asked by Joyner to come speak
with him. 4 RR 141. This testimony was proven false by evidence of
the dispatch recording conversation between Edgar and Sheedy where
she asked him if he was in the trailer (showing that he was not talking
to Applicant outside), along with time stamps showing that Sheedy had
already run Joyner’s driver’s license prior to Edgar’s arrival). 4 RR 137;
see also Attachment 21, Dispatch Recordings, at Audio File 3.
Moreover, Officer Sheedy testified that no one else was present while
he was speaking with Applicant, directly contradicting Edgar’s
testimony.
c. Sergeant Edgar, while recounting the hearsay evidence from Joyner,

testified that Joyner told her that he had driven by Applicant’s shop and
within “seconds,” Applicant was coming up behind him at a high rate
of speed. 4 RR 151. Again, as explained in Ground for Relief #6, this
is physically impossible in the amount of time Joyner alleges that it
happened.
4. Misrepresentations in Ranger Hanna’s Testimony
a. Ranger Hanna testified that he was notified of the incident by Chief

Deputy Duvall while he was in Austin and received a letter from DA
Murray the following week. 5 RR 155. Hanna then testified that he
became involved on September 20, and that the letter from the DA
requesting his assistance in the matter was dated September 19. 5 RR
163-64. Regarding the initial steps in his investigation, Ranger Hanna
testified that he first interviewed the witness to the incident, Betty
Gilbreath, on September 20, and then he obtained the Brownwood PD
officers’ reports on September 21. 5 RR 169. Contrary to Hanna’s
testimony, it would have not been possible for Hanna to have known
that Gilbreath was a witness to the incident with the information he
stated he obtained prior to interviewing her (i.e., Applicant’s report and
Deputy Thompson’s notes/photographs, none of which identified
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Gilbreath). However, the Brownwood PD officers’ reports both

included Gilbreath’s information. As a result, Hanna must have
obtained the Brownwood PD Officers’ reports on September 16 when
he returned from Austin, as that is the original date the reports were
printed and they were not provided to any other investigator or agency,
indicating his involvement prior to receiving the request letter from the
DA. See Attachment 22, Police Reports (showing date of September
16). This misrepresentation is material because it demonstrates that
Ranger Hanna was already investigating the case prior to the official
letter being sent by DA Murray requesting assistance. This early
involvement shows that DA Murray and Ranger Hanna were already
working on the criminal case against Applicant prior to Ranger Hanna’s
official start date on the investigation. Such evidence would have
undermined Ranger Hanna’s credibility, along with providing the jury
with evidence that the elected officials of Brown County were working
together to remove Applicant from office.
b. Ranger Hanna testified that there was no audible siren until the last
transmission at the end of the traffic pursuit. 5 RR 173. As
demonstrated by the full audio of the four transmissions, this testimony
misrepresents the evidence against Applicant, creating the impression
that Applicant was not engaging in a normal traffic stop. See
Attachment 21, Dispatch Recordings, at Audio File 1.
c. Ranger Hanna testified that the interview was one hour and 39 minutes
long. 5 RR 197. He further testified that the recording of the interview
was fair, accurate, and unaltered. 5 RR 199. He further testified that a
new CD he created (after losing the original) was an accurate copy of
the interview. 6 RR 31. DA Murray also questioned Hanna whether
everything in the interview was preserved in the recording that he made,
and Hanna confirmed that it was. DA Murray also asked Hanna if that
was the same recording that was played in court that day, and Hanna
again stated that it was. 7 RR 109. As explained in Ground for Relief
#10, the interview was longer than this amount of time, and the
recording was illicitly edited by Ranger Hanna so that about 34 minutes
were deleted. One of the deletions in this interview was Applicant
offering Ranger Hanna his supplemental report. This contradicted
Ranger Hanna’s testimony that he never attempted to obtain it, and that
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he did not believe it existed. 7 RR 13.
d. Ranger Hanna testified that he listened to the dispatch recording again

and timed it; the time between the first transmission where Applicant
says vehicle is fleeing and the “second” transmission (which is actually
the last transmission, not the second) indicating “he’s pulling into his
driveway” was seven seconds, which was different from his original
answer of between 90 seconds and 2 minutes. Compare 7 RR 41 with
5 RR 173. According to the dispatch recording, the actual time was
about 23 seconds from the end of the first transmission to the beginning
of the last. See Attachment 21, Dispatch Recordings, at Audio File 1.
DA Murray again falsely misrepresented the entire pursuit as only two
radio transmissions. 7 RR 41.
e. DA Murray asked Ranger Hanna to testify to the different laws that

cover evading, TEX. P. CODE §38.04 (Evading Arrest) and TEX. TRANS.
CODE §545.421 (Fleeing). 7 RR 48. DA Murray asked Ranger Hanna
to point out that for purposes of the fleeing statute, the officer has to be
in uniform and in a marked unit; however, he did not ask any questions
to clarify that these circumstances do not have to be present under the
Evading Arrest statute. 7 RR 49-50. Through this questioning, DA
Murray misled the jury by misrepresenting the law. These
misrepresentations are material because the jury was led to believe that
Applicant had no legitimate basis to believe that Joyner was Evading
Arrest or Fleeing.
f. DA Murray and Ranger Hanna further misrepresented the law under

TEX. P. CODE §42.01 (Disorderly Conduct). During DA Murray’s
questioning, Ranger Hanna agreed that the noise had to exceed 85
decibels in order to constitute disorderly conduct and that a warning has
to be issued before a person can be charged. 7 RR 50-52. Both of these
statements were blatant misrepresentations of the law, misleading the
jury into believing that Applicant had no legal right to conduct a traffic
stop on Joyner.
g. Ranger Hanna testified that the request letter from DA Murray was
addressed to Ranger Hanna on September 19, 2005, which contradicts
previous testimony by Ranger Hanna that the letter was addressed to
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his captain. 7 RR 59. Hanna previously testified that the request letter
from the DA was addressed to his captain — this was false. Compare
5 RR 155 with 7 RR 59 (Ranger Hanna testifies on cross that the letter
was addressed to Ranger Hanna). DA Murray was the one who sent the
request letter and allowed Ranger Hanna to knowingly commit perjury.
These misrepresentations are material because they obscure the
collusion between DA Murray and Ranger Hanna prior to Ranger
Hanna’s official start of the investigation.
The above misrepresentations were material because they created a
misleading picture of the law and evidence in the minds of the jury. In the absence
of these misrepresentations, there is a reasonable likelihood of a different result. As
a result, Applicant’s due process rights were violated, and this Court should grant
the writ application and order that the charges be dismissed with prejudice.
In the alternative, Trial Counsel rendered ineffective assistance because he
knew or should have known that the District Attorney was materially
misrepresenting the evidence and the law. As a result, this Court should grant the
writ and order a new trial on guilt-innocence.
V. PRAYER FOR RELIEF
Because both prongs of the Strickland test have been satisfied, this Court
should find that Trial Counsel rendered ineffective assistance and GRANT this
application for writ habeas corpus. The judgments of conviction should be set aside,
and the charges should be dismissed with prejudice. In the alternative, a new trial
should be ordered on guilt-innocence.

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Respectfully submitted,
/s/ Christopher M. Perri___________

CHRISTOPHER M. PERRI
1304 Nueces St.
Austin, Texas 78701
(512) 269-0260
(Fax) 675-6186
chris@chrisperrilaw.com
State Bar No. 24047769
ATTORNEY FOR APPLICANT
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing Application for
Writ of Habeas Corpus was served on the Brown County District Attorney, via
certified mail (return receipt requested), on the 30th day of April, 2021.
/s/ Christopher M. Perri__________

CHRISTOPHER M. PERRI
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Barnum - Application For Writ of Habeas Corpus

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EX PARTE § IN THE 35th JUDICIAL

DONNIE BARNUM § BROWN COUNTY, TEXAS

APPLICATION FOR WRIT OF HABEAS CORPUS

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW Applicant Donnie Barnum, by and through his undersigned

community supervision entered on April 27, 2006, in cause number CR-18,107,

counts of class A misdemeanor Official Oppression, which were obtained in

violation of his state and federal constitutional rights to effective assistance of

in fact exists, it is exercised in a manner or degree not sanctioned by law.

rules prescribed by law.”

application when a person seeks relief from an order of community supervision.

A showing of a collateral consequence, without more, is sufficient to establish

the necessary confinement or restraint for consideration of an application for writ of

habeas corpus.1 Ex Parte Harrington, 310 S.W.3d 452, 457 (Tex.Crim.App.2010)

impeachment of his credibility in future judicial hearings”).

Although Applicant is no longer subject to community supervision

(discharged in 2016), he remains confined and restrained by virtue of the felony

Attachment 1, Affidavit of Donnie Barnum, at 1. For the foregoing reasons,

II. PROCEDURAL BACKGROUND

Sheriff’s Office was assigned to investigate an altercation that occurred between

163-64; cf. 8 RR 57 (sheriff’s deputy testifies that their investigation was

relinquished to Ranger Hanna on September 19, 2005).

Misconduct and Incompetence. See Attachment 2, Original Petition for Removal of

Attachment 3, Order of Temporary Suspension.

conditions including a $5,000 fine, 160 hours of community service, relinquishment

of Applicant’s peace officer certificate, permanent disbarment from law

enforcement, and an anger management assessment; (2) Official Oppression: one

II. FACTUAL BACKGROUND

July of 2005. 3 RR 94.

him over. 3 RR 107-08.

116; see also 4 RR 96.

Joyner testified that as he passed Applicant’s shop, Applicant walked outside,

According to Joyner’s testimony, he was going about 25-30 mph down

parked behind Joyner’s wife’s pickup truck. 3 RR 148.

According to Joyner, he locked the aluminum screen door as he went inside

A struggle ensued. 3 RR 169-73. Joyner admitted that he punched Applicant during

also ripped Joyner’s necklace off. 3 RR 178-79.

of events to both officers. 3 RR 183-85.

On cross-examination, Joyner testified that he was aware that he had a duty to

Furthermore, Joyner testified that Applicant’s daughter was seated in

residence at 1611 Main Blvd. when the commotion occurred. 4 RR 4, 7. According

Tracey Edgar, a Brownwood Police Department sergeant, testified that she

officers do not need his assistance. 4 RR 136.

Regarding crime scene investigations, Sergeant Edgar testified that because

On September 14, 2005, Brownwood Police Department received a call from

Officer Sheedy, Sergeant Edgar spoke to Joyner. 4 RR 141-42. Joyner informed

his account of Applicant’s attempt to pull him over. 4 RR 169-77.

to photograph the scene, including injuries to Joyner, damage to the residence,

the damaged walls. 4 RR 244.

shirt as evidence. 4 RR 240.

he passed by Applicant’s shop at Belle Plain and Hackberry. 4 RR 190. Ultimately,

basis for the traffic stop. 4 RR 205.

violation of the Disorderly Conduct – Noise statute. 4 RR 251.

audio/video equipment. 4 RR 246-47.

evidence that Applicant’s tires squealed on Hackberry, Sergeant Edgar failed to

include this finding in her police report. 4 RR 274.

Sheedy testified on cross-examination that revving a motorcycle engine can be

unreasonably loud. 5 RR 24.

Regarding his movement of evidence at a crime scene, Officer Sheedy

305-06, 5 RR 18-19. Contrary to Sergeant Edgar’s testimony, Officer Sheedy

he could photograph his injuries. 4 RR 306-07. Also, despite Sergeant Edgar

vehicle. Compare 4 RR 187 with 5 RR 20-21.