);2/ 454 H>,~/?,»;.:C>, /;2_, RECENED \N De¢. 2.6, 2014 COUmc>Fc;R\M\NALAPPEALS cary wayne Barnes l TDcJ' -ID 3'13814 _ jAN()ZZUE 1100 FM-655,`Ramsey Rosharon,-Texas 77583 TEX'AS couRT oF cRIMINAL APP - mem cLERK, ABEL ACOSTA ' AD€\%QU» P.o. Box 1'2308 . cAPITIoL STATION' Austin, Texas 78711 Re; Wr_ 12' 658_+8' 19, 20 and 21; Dallas Tr. Ct. No."s- 'F-80-016530-J 'F-8l-01027-J F-Bl-OllOS-J F#Sl-OZSIB-J Dear clerk; Enclosed Please fine the movants NOTICE OF APPEAL pursuant a Brief with the attachments the ehhibits showing that the movant requests NOTICE OF APPEAL to the Chapter 64.04`h0tion for dna testing as required by the Texas Code of Criminal Procedures, ; in a showing that the movant was Granted DNA testing by the convicting court; _ ` Through no fault of the Movant the court tested the evidence of a unrelated set of offenses, evidence that has nothing to do with the crimes to which the movant was convicted.

This evidence was filed in the crime Lab (6) monthe prior to and before the commission of`the offenses to which movant was comvicted; l v The movant has been impeaded from the ` actual crime Scence evidence by a court ORDER filed in the Convicting court on June 25, 2009 by said Judge; This Sealing of the ' files and records 'has a 'Equaltable Tolling , as such has ‘impeaded' the filing of the movants Habeas application until these files was mailed to the movant on May 16, 2014, see habase application pending page 7.

Dus to the¢nature of the confidential and sealed files movant request that a copy of this document be mailed to the Dallas Clerk; Gary Fitzsimmons frank crowley court Building LB 12 Dallas Texas 75207-4313 ‘Cwqh § §§XMVV[\QC?

Res ect lly Submitted; Dec.26, 2014; IN THE TEXAS COURT OF CRIMINAL APPEALS Gary Wayne Barnes Sr, Appeal from the Dallas movant, county , Criminal District VS. Court Three: z Order denying TNA Testing; THE STATE OF TEXAS CCA NO. WR_-12,658-18,l9,20 and 21 , ,\ l`_*§ "_'.1‘ ¢0|€0160|¢¢0?¢09¢05¢0?

NOTICE OF APPEALS TO THE HONORABLE JUSTICES: I Gary Wayne Barnes Sr. the Pre SE movant in cause number of Dallas county convictions in indictments F-80-01653OIJ F-Bl-OllOS-J, F-81-01027-J and F-81-02518-J request to file an appeal in the ,above numbered causes in the Article 64.04 findings as the court1 ORDER is signed on the ll,th Day of Dec. 2014.

The movant files notice of Appeal Pre Texas Code of Criminal Procedures Chapter 64.04 supported by his contemporaneously filed Memorandum and applicatant attachements and Exhibits in support of the Writ of Habeas Corpus presently pending in the above entitled petition numbers;\ Per Texas Code of Criminal Procedures chapter 64,04 by use and by reference thereto the materials contained in movant's attached MOTION FOR DNA TESTING , contemporaneously filed Memorandum in Sopport of the Writ of Habeas Corpus with movants Attachements and Exhibits reflects the following; On Feb. 20 2009, the movant was granted DNA testing and testing’ was premitted by the DPS ,with the results released on May 13, 2009. The court hheld a result hearring on.June 8, 2009 and durring the hearing it became apperrant that thur no fault of the movant the S§tate_ had tested the "Wrong evidence"; 1. the actual crime scence evidence was withhheld and replaced with evidence of an un-related set of offenses; 2. The evidence that was tested is not the actual crime scence evidence for offenses that was committed on July 4, 1980 as the SWIFS , crime lab files presently shows the evidence tested in file numbers 80-p-1632 and 80-p-1635 was filed Appeal Page l. '\ w in the SWIFS crime Lab in the Month of Feb 6, 1980 (6) months prior to and before the date of the commission of the offenses, being committed. ' _ 1 .

In this case the movant will establish Equatable Tolling of extraordiniary circumstances justifying the delay in obtaining* the newly discovered, newly presented evidence in the presentation of a 'ORDER' of the convicting court/ having all records and files sealed.

The evidences records and files was Ordered Sealed by the convicting Court Judge on June 25, 2009 which has worked to inpead the movant from obtaining the withheld actual crime scence evidence. _ On June 8, 2009 the movant filed an objection in opeH court that the court take Judicial Notice- concerning 'the findings of the results of the chapter 64404 as the evide§ce was faulty and not the aactual crime scence evidence as the resul§s was con- tridictory to the sworn testimony and the statements of the victims that prior to the offenses being committed she had never had a sexual intercourse with a male or a female§!

The Results in the test results states that the DNA pro- files of a un-Known Male and Three un-known and un-identified females profiles which is un-explainable in a case where the victims sworn statements and trial testimomy are a contridiction 4of the findings.

These findings along whth the movants knowledge in knowing that he did not commit these offenses. presents issues of- the evidence is questionable: II.

On June 8, 2009 at the result finging hearing a women in the court gave a note to the Bailiff to give to the movant stating that the evidence was wrong, not the actual crime scence evidence. This was reflected in the movants Objections and request for Judicial notices l The movant, was not allowed to file a Notice of appeal as the Judge rushed to seal the files as being confidential and by the same stroke of the pen the Judge approved an order for Appeal Page 2. the movant's court appointed attorney to withdraw as the attorney of records. (see Movants Habeas Corpus application page 7.)

The movant points to the case in McQuiggins V. Preking' S. ct. 1924 (2013) _where the United States Supreme Court has held that a claim of actual innocence if proven is a gateway by which the movant can raise a claim of actual innocence.

In this Appeal the movant can show the exceptional set of circumstances in the convicting court filed a "ORDER" to Seal the Files, Records which has 'impeaded the movant from obtaining the files and the records that was mailed the movant' on May 16, 2014 in a un-marked,.no returnable postage legal envolope, mailed to the prison mail room that has been recorded as questionable legal mail with no-returable addresssnot on movants mailing list. 1 ` The SWIFS lab files was mailed to the movant, and the movant did not and has not violated the court order, making copies of the files, but use the files as movant's Attachements and Exhibits A thur L'in presenting the files in the movants _ Memorandum in Support of the Writ of Habeas Corpus showing that the actual crime scence evidence has not been presented to the court._ 4 The movant has been convicted of offenses that was committed on July 4, .1980, but the evidence that has been presented to the `court as states Exhibit 3 and tested by the DPS in file numbers 80-p-1632 and 80-p-l635 was on file in the SWIFS crime lab Feb. 6, 1980 (6) months prior to the offenses was committed.

The police report in the Dallas' police Department files of number #307064-1 is also a ~filing that was filed in that department in 'the month on feb, 1980 and is not the case in the same transaction of the offenses committed on July 4, 1980 in the Dallas Police Department filing number of 506950~L same tranaction .

III.

In the interest of justice in a miscariage of justice in the' conviction ~of a innocence person where the actual crime scence evidence has been withheld this court isv Appeal Page 3. in the position of a review of the files a review to which the movant has been impeaded from presenting &from showing due to the June 25, 2009 court order to seal the files as .confidential.

The movants Attachements and Exhibits clearly shows by McQuiggins V. Perkins, clear and convicing evidence that the actual crime scence has been withheld: 1 In the state not presenting the actual crime scence evidence at the movants trial has deprived the movant of his constitutional right to due process and the right to legal sificient evidence to support the verdicts, judgements and the sentences.

A review of the files in this case will show that the convicting court has already Granted the movant's Motion for DNA Testing on Feb. 19, 2009 (see Attachement and Exhibit A thur L and attached here as Exhibit a) through no égbi of the movant the state has tested the wromg evidence.

The Judge of the convicting court has stated in the records that the movant has established that he mis'entitle to the requirments as set of in the statute in requesting DNA test- ing as authorized by Chapter 64. Ol, 02,and 03; (a) (2).

The movant can now show 'this court by a review of the‘ filing systems of the Dallas Police Department and the filing systems of the Southwest Institute of Fresence Science Lab that the actual crime scence evidence for the offenses that was commiytted on July 4, 1980 is not the evidence that was submitted for testing in file numbers 80-p-1632 and 80-p- 1635 tested in DPS file number LlD-184098-2 with the results of May 13, 2009.

Under the holdings of Brady V. Maryland, the movant is actually innocence when the actual evidence has been withheld as the movant has been deprived of his constitutional rights to the fundmentals of due process.

Clear and convincing evidence is eHhibited in the filed report of the SWIFS- lab attached here as Exhibit B, dated July 24, 2008 showing thai the C. Jordan file has the same file number as the Y. Oviedo file as Fe80501027-J as this Appeal Page 4. same number is submitted to the Texas Department of Public Safety crime lab evidence record sheet 3/6/09 showing the Same evidence file number of F-81&01027-J , that is the actual evidece of the file in the SWIFS tested evidence of 31-016530-J. this_ will now become(exhibit C.) ahs mart has gssamsd to unsmdsarauoammgaridsna usta;psrcsue wsadtrsmss: v The movant request an appeal of the above facts and issus as . the actual crime scence evidence in the above mentioned files sits at the SWIFS crime lab that proves that not only was the wrong evidence tested but the wrong evidence was present -ed at the movants trial, under the clear and convicing standards no jury in the world would have convicted the movant, if it had been known that the evidence was the evidence of a crime that has nothing to do with the offenses to which the applicant was on trial. ` The evidence is no longer the issue in this case the court only need to petition the files of the` SWIFS CRIME LAB and make a deter- manation a request for a AFFIDIVIT OF THE FILING SYSTEM- a Question of what is the filing Date of the evidence in SWIFS file no. 80-P- 1632 and 80-p-1635s ` A request for a AFFIDIVIT OF THE FILING SYSTEM Of the Dallas Police Department in the Police report of #307064-L is this file number for a offenses reported on July 4, 1980; is condict- ionary of a filed case in file number # 506950-L reported on July 4_ 1980‘ in the same time and place.

The movant make these' requests as the Judge of the convicting court still has a pending Order that the-files are sealed as confidential and the movant is proceeding in Pro- se and is impeaded by such information being intentionally done when the movant made his objections in open court; This 'impeadment by court order' is movants request to the united stated court ofv Appeals for the fifth Circuit in the application to premit the filing of the seeessive 28 U.S.C. § 2254 in requesting equitable tolling due to the impeadment Of the Court "ORDER to SEAL THE RECORDS.

Appeal Page 5. \r "1 `

, ExHIBIT A §.\ SOUTHWESTERN ‘ _ ' ` ry _ INSTITUTE OF FORENSIC_ SCIENCES n AT DALLAS . _ _ » F\LED Ju\_ 24 2003 Forensic Biology Unit 523;]):/1[1;(;:€;;;:";;;?51'.ivé ' - v July _11, 2008 __ Investigating Agency: Al-ny Murphy " Laboratory #: ~ 1801)29'7 1 -. Dallas County District Attorney’s Ofiice Age"°¥"#‘ ' "5589101,7` " Appellate Division _ Ca“‘e #‘ ` F80~01027-J N. lndustrial Blvd, LB 19 C°mP'ai“a““ Cynthia'.lordan Dallas, TX 75207 ` Defe"da”“ - Gary Wayne Barnes , ' Offe““’= Sexual Assault

This report is in response to your request for the search of biological and trace evidence in this laboratory’s evidence storage areas for the purpose of potential post-conviction DNA testing.

EVIDENCE: Received by B. E. Harwood from PMH OB~GYN/EOR locked cabinet on Deccrnber 3, 1980: Kl. Vaginal swab in saline _ ' KZ'. Vaginal smear on slide K3. _ Blood sample from victim K4. Pubic hair combings - K5. Pubic hair cuttings K6. Anal smear on a slide Submitted by W. R. Bricker on December 5 , 1980: K7. vBlue jeans KS. Bedspread RESULTS.: ` Item K2 and a slide made from item K7 Were located in this laboratory’s storage areas'. ltems Kl', K3, K4, KS, K6, K7 and K8 Were not located in this laboratory’s storage areas Analystlnitials< § X\ii’i/

fare given

n Vicki Hall Trace Evidence Exarniner , Direct Line:,j 214-920-5948 . " Fax: 214-920-.5813 E-ma`il:[email protected]

Page 2 0f,2 FL# 80P29»'/'1 July11,2008_ lide made from item K7 vvill remain in laboratory storage until further Qm t> Uelw\ncev\ TaraD Johnson, M S.

Forensic Biologist ll v Direct Line: 214- 920-5996 Fax: 214- 920- 5813 ` E- mail: tdjohnson@dallascounty. org cc:. Dallas Police Department, Crirnes Against Persons Division»

Analyst Initials;_ § if Ui}/

Texas DPS Crime Laboratory Service Evidence Record Sheet 03/06/09 11;12AM

Date Received

[_P Laboratory Case Number NIB L1 D- 184098- 02 QD TE __]Resubrnission l_\Additional Evidence

C@N\i \C~ @N |l|||l\lll|lil|i||li|li||||||i||i|l||

Date Comp|eted A: 5 I(p ’D"] , gm Section & Analysis by `i>i\]A ~')`(i 1 / - Reviewed: Tech: M+i 5/[§0‘1 Adm: %5'/[(, 'DQ EXHIBIT B Report N|ailed; ' Date Comp|eted B: "ln PerSOn

Section & Analysis by

Reviewed: Tech: Adm: Repo_rt l\/|ai|ed: @DMW%#(W% Date COmpl€i@d CI v James Hamm'()nd S`ection & Ana|ysis by Reviewed: Tech: Adm:

Report l\/|ai|ed:

. .. n t Received by Patricia Brannont¢/'?{/’M_Miw\’

Description; Proper|y Sealed 9x12Ye|i / Transfer Log (for court, return from court, at court, ow Enveiope; bar code unavailable etc.)

Date To From Items\Exhibits\Comments Forward Date To: . Items: U.S. |\/\ail By ___, in Person r____.,___. UFS _A Raun~iuale ""Aii i_|iiems~; __ U.S. N|ai| v By |n Person - _ . `_- ups Des`truction Date, ' i\/lethod Transponed by: Wiiness Witness ' ' __ Burning _J Hand Carry ___ Flushing ___ Other: Contractor ___ Burning __ Hand Carry __ F|ushing _____ Other: __] ExceSS Contractor Court Record (Whenever evidence is introduced or otherwise transferred at the courthouse, use the Transfer Log above) Date Witness T/A City CDFO Outcome i\/li|es Hours

Notes CaseFile information entered: Submitting Offic er-Agency- -County Offense Date- -Agency Number

LAB/c-zz (Rev. 06/05> \l

s1x

l TEXAS DEPARTMENT OF PUBL|C SAFE' CR|ME LABORATORY SERV|CE l Laboratory Submission Form

Agency Case Number F81-01027, F81-01105 F81-02518 offense AG`G RAPE,`AGG RAPE, BuRG HAi_ Date of Offense 07-04-1980 County of Offense Dallas County

Agency l Dallas County D.A. geit§ence Rec,'d

Case Contact Person` Name Amy Murphy n Tiile Assistant DistrictAttorney

A“§j:§;§ 133N industrial B`ivd., i_e19 phone 214_653_3631 Fax 214_653_3643_ C' ,State Em 'i zii)'_€ode Da"as' TX 752°7'4399 . Addie§; AsMuRPHY@DAi_LAscouNTY.oRG Suspect Vlctim Name(Last,FirstMlddle) Race Sex DOB DL#/SS#I|D#

le l:l Barnes, Gary Wayne M B_ 101/23/1954 SID 02270491 [1 El Q”Y*( Fsi-oioz'/ - Agg Rape) - l:l le R__»E“.‘ F81-o1105 - Agg Rape) l:l El R*.iq,i=si-ozma - Burg Hab) Description of Evidence Submitted

Exam Requested

Exhibii# :f"|'t"‘__:$;- Description ovaidence 1' y 2 1 Portion of SWIFS FL#08P1542 - buccal see Ct Order swab of Gary Baijnes SW|FS item K2 - FL#80P1632 Vaginal _ 2. 3 1 _Smear from Victim Y” Y-*?Om ._ __ ._ . see Ct Order - ~ - swiFs item K2 - 80P1635 vaginal v E` ll l n ' ` 3' § 1 Smear from victim E“ h _ w See ct order U 4.

5.

6.

For some non-drug c'ases, it may be appropriate to attach a copy of the offense report.

P|ease include brief case synopsis, unusual examination(s) requested, and/or relevant case priority information.

See Court Order Are known standards (blood, saliva, h`air, inked prints, clothing, fabrics, etc.) submitted for comparison? l:]Yes ®No Have any of these exhibits been previously analyzed by a |aboratory? l:lYes ENo Whi_ch ones? `

\ TEXAS DEPARTMENT O|\~' PUBL|C SAFETY DPS GARLAND CR|ME LABORATORY WEST |H 30 GARLAND, TEXAS 75043-5998 Voice 214-861~2190 Fax 214-861-2194

COMMlSSION LAMADR|:§¢CMORTH n _ May 13, 2009 _ y _ '- _ ALLANB.PoLuNsKY,cHAiR . , _ f C.TOM CLOWE,'JR. ` . - ~ AnAaRowN Sewiogv\DN/\ Rep<>rf » a carriersle Assistant DA Amy l\/lurphy - Dallas Co. Appe|late Division N. lndustria| Blvd.l LB19 Dallas,- Texas 75207 Laboratory Case Number ` Agency Case Number . Offen_se Date L--iD-18409_8 ` F8101027 07/04/80 Suspect(s) - Vi_ctim(s) - Barnes, Gary Wayne _ O” Y* c ’~ ' 7 v - ` l*,» 1 Offense: Sexual Assault County of_Offense: Dallas (057) Evidence Submitted - . _ ln person by James Hammond on February 20, 2009: 1. Buccal swabs from Gary Barnes `

ln person by James Hammond on l\/larch 6, 2009: v 2. Buccal s`wabs from Gary Barnes `/: ’ . ' 3-1. |fem K2 vaginal smear slide from*sYH;;§-»(Previously stained) 3-2 Item K2 vaginal smear slide from \.'__.~”~(' .'ns+-'iined) 3~3. item K2 vaginal smear slide i`ron~ `“D*{i insta?nedl 4. item K2 vaginal smear slide from MU(Previously stained) Requested Analysis . v Perform Post-Conviction DNA analysis on the items submitted in accordance to the Court Order F81`- 01027~QJ, F81-01105-QJ, F81-02518-J in the Criminal District Court Number 3 of Dallas County, Texas.

Results of Analysis'and |nterpretation _ _ Spermatozoa, semen specific constituents were detected on the two previously stained vaginal s"mear_ slides (ltems 3’-1 and 4). Apparent cellular matter was detected on the two remaining vaginal smear slides (ltems 3-2 and 3-3). No apparent hairs or fibers were detected on the vaginal smear slides. ‘An attempt was made to extract DNA from evidentiary samples relating to this case Both bucca| swabs from Gary Barnes were extracted by a method that yields DNA. The vaginal smear slides (ltems 3-1, 3- _ 2, 3-3, and 4) were extracted using a method designed to yield two fractions: a fraction enriched for DNA » from non-sperm cells usually associated With the victim (the epithelial cell fraction), and a` fraction enriched for DNA from sperm cells (the sperm fraction). DNA typing was performed on these samples using the polymerase chain reaction (PCR). The following loci were examined: 0881179, D21811, ACCREDITED BY THE AMERICAN SCCIETY OF CRIME LABORA TORY DlRECTORS - LAB ACCREDITA T/ON BOARD ' ' COURTESY - SERV|CE - PROTECTION »~ .4_" ` l Laboratory Case Nu;mber 4 Agency Case Number Offense Date - l_`lD-184098 ' ' _. '/ F8101027 07/04/80 D78820, CSF1PO, 01381358, THO1, D138317, D168539, DZS1338, D198433, vWA, TPOX, D18851, Amelogenin, 058818, and FGA. . ' v v `_ The partial DNA profile from theraction_of the first vaginal smear.s|id_e, (ltem ;3-1) is`___conslstent~__ , _' ' with a mixture from G`a`ry' Barnes an_g:_;._S_:Qm.€.,,l;lj]l_<_nown_individual.` Gary Barnes cannot»`be excluded as a v contributor to the stain at the loci D881179, D38'13`5'8, TH01, D13$317, 0163539, D1'98433,`vWA, - \ b _ TP_OX, Amelogenin, D58_818, and F_GA. At these loci, the probability of selecting an unrelated person at- random`who could be a contributor to the sperm fraction of the vaginal smear slide is approximately 1 in _ 5.679 million for Caucasians, 1.in 6.789 million for Blacks, and `1 in 1`.038 million for Hispanics. The l approximate world population is 6.5 billion.

The partial DNA profile from the epithelial cell fraction of the first vaginal smear slide (|tem 3-1) is consistent'with some unknown female '- The partial_DNA profile from the.action of the second vaginal slme_a¢r_slide (ltérn 3-2)_is consistent b with a mixture from Gary Barnes and some unknown individual Gary Barnes cannot be excluded as a contributor to the stain at the l`oci D881179, DZ1S11, D`/SBZ_O`, D381358,‘ THO1, D13S317, D1QS433, - vWA, TPOX, D18351, Amelogenin, D53818, and FGA. At these loci, the probability of selecting an unrelated person at random who could be a contributor to the sperm fraction of the vaginal smear slide is . s approximately 1 in 30.84 million for Caucasians, 1 in 46.15 million for Blacks, and 1 in 7.358 million for- ` Hispanics v .

The partial DNA profile from the epithelial cell fraction of the second_vaginal smear slide (ltem 3-2) is consistent with the same unknown female _ . - The partial DNA profile from the sperm fraction of the third vaginal smear slide (ltem 3-3) is consistent with a mixture from Gary Barnes and some unknown-individual Gary Barnes cannot be excluded as a contributor to the stain at the loci D3S1358, D13S317, D1QS433, and Amelogenin. At these loci, the_ probability of selecting an unrelated person at random who could be a contributor to the sperm fraction of the vaginal smear slide is approximately 1 in 92 for Caucasians,'1 in 79 for Blacks, and 1 in 74 for Hispanics. _ l l The partial DNA profile from the epithelial cell fraction of the third vaginal smear slide (ltem 3-3) is consistent with the same unknown female The partial DNA profiles from the sperm and epithelial cell fractions of the final vaginal smear slide (|tem 4)'.~;is consistent some other female Gary Barnes is excluded asa ccntz‘ibutcrto the sperm and epithelial ‘ cell fractions of the vaginal smear slide The four vaginal smear slides (ltems 3-1, 3-2, 3-3, and 4) were depleted during analysis The remaining DNA extracts and the remaining samples of the buccal swabs fro`m'Gar'y_,Barnes (ltems‘1 and 2) will be stored frozen to preserve the biological constituents For comparison purposes please submit known specimens from the victims Contact the laboratory for instructions on the proper collection method for additional evidence ' ’ We are unable to retain this evidence Please make arrangements to pick it up at your earliest convenience i J mes lchols ' P’ rensic Scientist o v _ Texas DPS Garl_and Laboratory Page 2 of 2 ' 05/13/09 ._.mX>m Um?>%.._\_<_mz._. O_n UCm_i_O m>_nm._.< _ v , rmu Ommm n F\_ U-._ mhowm

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il SOUTHWESTERN _ INSTITUTE OF FOREN_SIC SCIENCES f AT DALLAS EXHIB§T c

5230 Medical Center Drive _Dauas, rean 75235 FKED JUN l - 1 5 200 Forensic Biology Unit April 8, 2009

investigating Agency: Michelle M()Or€ n LaboratOry #1 80P2971 Dallas County Public Defender’s New FL: 081)1542 ` l)$f;ul:\?. Industrial Blvd., LB 2' ' Agency #: 4 558910L Dallas, TX 75207 Cause #= F80-16530-IJ § l Complainant: Cyl‘ltl‘lla~ JOI`dal'l _~ _" *` * _ ***"*___ “`Tde“mBnT:“**`GIy'B'arnes`"_ ___'_" _"_` Offense: Sexual Assault

EVIDENCE: Received by B. E. Harwood from PMH OB-GYN/EOR locked cabinet on December 3, 1980: K2. Vaginal smear 1 Retrieved from SWIFS lockbox on September 9, 2008: (08P1542) l. Buccal swab standard from Gary Barnes RESULTS: Portions of the following stored samples Were subjected to a chemical process to extract deoxyribonucleic acid (DNA): KZTl. SWab_bing of vaginal smear (08P41542) ~l. Buccal swab standard from Gary Barnes DNA Was extracted from sample K2T1 (swabbing of vaginal smear) in a manner designed to yield two fractions: a fraction enriched for epithelial cell (female) DNA; and a fraction enriched for sperm cell (male) DNA. On occasion, the differential extraction method does not completely separate the two types of DNA due to the relative amounts of the two cell types present in a particular sample The DNA extracts from the above listed samples Were amplified using the Polymerase Chain Reaction method, and typed for Amelogenin and the following nine (9) Short Tandem Repeat '(STR) systems: D381358, vWA, FGA, DSSll79, DZISl l, DlSSSl, D58818, DlSS?) 1_7, and _ Analyst Initials 9 19 EXHIBIT C' `Page 2 of3 l FL#80P2971 AprilS, 2009 D7SSZO. Sample (08Pl542) 1 Was amplified and typed for the following four (4) additional STR systems Dl6SS39, THOl, TPOX, and CSFlPO. ' Sampl_e K2T1 (swabbing of vaginal smear) Epithelial cell fraction No DNA profile Wasobtained from this _fra_ction'.» Spermv cellfraction. Sper'rnatozoa were not detected in this fraction.by microscopic examination No DNA profile was obtained from this fraction Table 1. DNA Profiles

~ ' (08P1542)1. Bucca| ' '_ '_' _STR‘Syste'm' "_' ""'swab't`rom'G'ary"_ Barnes Amelogenin XY _ _D381358 15,16 ` vWA 15,,17 FGA 21,2`2 D8$1179 10,1-3 D?.lSll 28,30 D18851 ~ 15,16 , D'SSSIS ll,l} . D13S317 11,12 D78820 10,10 D16SS3,9 9-,12 - vTHOI ` 7,7 TPoX 8,8 C_SFlPO 11,12 CONCLUSIONS: <"""/“'r/E$€ /i/Z€ DMA'TEST KE§ULT§ sH<>Lu//u@ />/\JA 191on /Lé FO/€ §AR>>!¢EA ¢Be/Qx)€§ BTL)S/ /¢l F/QC>F/L€ M&/

, z AT//\ié M:/CM¢H ca w/`¢/ 77e / 55 / //\JG Inasmuch as no DNA` profile was obtained from sample KZTI (swabbin'g of vaginal smear), no comparisons or conclusions Will be made regarding this sample DISPOSITION OF EVIDENCE: Unused portions of the following samples have been stored, and are available for future testing: KZTl land (08P1542) l. Unused portions of DNA extracts of the following samples have been stored, and.are available for future testing: K2Tl (epithelial and sperm cell fractions)` and * (031>1542)1.

Analys_t Initials` §§ ` ExHIBIT c Page 3 ors - FL#80P2971 April 8, 2009 ADDITIONAL` COMMENTS: In the event additional analysis is 'required, please noti® the laboratory as soon as possible ' Courtney"Ferreira Forensic Biol_ogist ll _ Direct Line: 214-920-_5841 ` FAXZ n 214-920-5813 E'-mail: [email protected] - cc: Amy Murphy, Dallas County District Attorney’s Office, Appellate Division Analyst Initials §§ \ ".

1100 Fn 655, Rams@§§§;¢ez@$§e nni:€'¥“i&` 4 Rosharon , Te§a `XAS ~ ~ crpurv 77583 " L 1 filing with the Criminal District Court number Three a MOTION FOR APPOINTHENT OF'INVESTIGTOR,` Please file the same with the court and return a filed copy to the applicant: I Thank you in advance for your consideration in this above mentioned request: Reeeect£ully Submitted Cause Numbers F-81-1105, F>-81-1027 ' ic i ' E D

and F-80-16530 ZUlliAPR‘S PH 3= 26 GarY WaY"e Barnes § IN THE CRI"INAH;¢. -'i.'~-.::J.noiis ` "`iii_‘"i |:?:RK vS. _ § DISTRICT COURT TH * TEXAS ' _ _ ‘WPUTY § OF DALLAS COUNTY TEXA _ THE STATE OF TEXAS _ . § § MOTION FOR THE APPOINTMENT OF AN INVESTIGATOR TO THE HONORABLE JUDGE OF SAID COURT: Now ~comes- Gary Wayne Barnes, the applicant in the above entitled and numbered causes a petition in Pro- Se to request that the court appoint an Investigator where the applicant has ` requested' the-_appointment of counsel where there are new facts, newly discovered evidence of the origional filings systems of the Dallas Police department, Southwestern Institut-~.4 ute of Forecics Science and the office of the Dallas County Clerks has documents files and imformation of the -dates of the above mentioned crimes,'police reports , crime file numbers evidence files and the evidence filing dates for the offenses to which the applicant has been convicted.

Barnes 2.

The applicant was convicted on Feb, 27, 1981 for the¢ offense committed on July 4 1980, in the Dallas Police Department file number #SOSQSO-L and #'307064-L for offenses committed July 4, 1980 and the SWIFIS lab file numbers of # 80~P-1632 and # 80-P- 1635 for the evidence of the offense which was committed on the date of july 4. 1980. ' This Court in a ORDER GRANTING DNA TESTING Varified that the evidence was locked in a box science the date of the offense in a certain chain of coustody.

The State presented at trial Extraneous offenses and evidence of swiss lab ii 80-1'>-425'93 and 1)1>1) wfile hauser of s 4e29'55~` L as an extraneous offense being committed prior to and _before the offense which was committed July 4, 1980. iThe state presented at trial Extraneous offense and 'evidence of SWIFS lab # 80-80-P-2971 and DPD file number as an extraneous offense being committed on Dec. '2, l980an offense that committred after the offense of July 4, 1980.DP¢5‘“'-55`8clm"\'~ The filing order of ` both the n'PD and swiss filing of the cases before and_after the offense of July 41 1980 proves that the lab numbers in # ,an_-_e;;@z_ana s ao-P-1635 are not the actual evidence of the crime scence and that a records search shows that this ` ence was _gg _filg n at ther SWIFS lab_p£igr to and before the date to which the July 4. 1980 offense was committed.

II.

The applicant was granted DNA testing on Feb.

20, ,2009 and that testing was prefromed by the DPS lab in number »LlD-184098 as the filing systems will show that this is not and can not be the actual crime scence evidence.

Page 2.

Barnes 3.

The filing systems of both the Dallas Police Department and the files of the Southwestern Institute of Froenics science labproves that the state has introduced persented and tested the evidence which is not, was not the evidence of the actual crime scence- n III.

The `applicant was convicted in (2) two jury trials where the State filed it's notice of intent to uses extraneous offenses and .to present extraneous evidence prusuant to Rules 404 and __609iof.thre Texas Rules of Evidence and Article 37.07 of the code of Criminal proceedures.

By the use of this new inrormation that the evidence has never been presented the ant Jury or to the actual trial Judge the the applicant has not been given a fair trial and has been denied due process in a `constitutional meaning of the actual evidence 'of the crime scence .being presented to the court and entered upon the recorder rv_, The files of both the DPD and SWIFS labs proves that there is a serious issue of testing the actual evidence as` this evidence is still on file at the lab in the numbers filed as ao-p-27a4 and 80~1>-¢2790, that was filed on duly 4, 1930. ' ' This evidence can be tested and this evidence will prove that the applicant is actusal innocence and that the victims are the actual victims of the crime to which the applicant` has been convicted.

Page 3.

Barnes 4, Applicant request the appointment of INVESTIGATOR in assisting a review by this court in _determination as to the fact of the evidence so thatr a Order can be filed that a copy of the porition of the files of the‘ Dallas police 'Department and the Southwestern Instutute of Forenics Science Lab be sealed for the future review of the appellate court when necessary.

Applicant request the appointment of lnvestigator to preserve and present affidivits to the court of the in Brief data of the DPD and SWIFS Lab of the filing systems 'that the correct dates that all evidence was reported and presented to the lab in accordance 'with the dates of each of the offeenses was committed as well as the .evidence filed with the lab.

V. Tha applicant can prove and present the facts that are related to the issue of the evidence and that the testing of said evidence proves that the applicant in actually innocence of the crimes to which he was convicted. In the inter- trest ofl justice the applicant request that the Judge looku to the facts look to the filing process of both of the above mentioned _agencies which shows the the evidence used in the ` convictions was no file in the Lab filing systems prior to and before the date that the crime was committed. t Wherefore, premises Considered, the applicant Prays that this court grant this Motion for the`Appointment of Invest- igator: Respectfully Submitted: Page 4.

Barnes 5. ~ Gary W§;ne Barnes Pro-Se #318814 TDCJ-ID 1100 FH 655, Ramsey Rosharon. Texas 77583 Signed on this the 27. day of 2014 CERTIFICATED OF-SERVICE A true and correct copy of the above and foregoing document has been delivered to the office of the Dallas County\Clerks- officepursuant to the Texas Code of Criminal Procedures on this the 27 Th day of March 2014by placing the same in the united States Mail; Gary Wayne Barnes #318814 st\¢@\>\b»@\w%wm/r Page 5.

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EXHIBIT E Cause Number’s F-80-16530'F-81-1105 and F~81-1027

v § Gary wayne Barnes IN THE CRIMINAL DIS 1_ § §f£‘i?$aaze mm 27 app lcant: COURT NUHBER THREE OF€AY ‘HHUS ' §§ °Ti§ » `ELCR§{ vs._' DALLAS couNTY TEXAS ;,, \,; IEXAS THE STATE OF TEXAS § _ "‘ w_~i"l……"r¢:";in£mn¥ § , MOTION FOR APPOINTHENT OF COUNSEL TO THE HONORABLE JUDGE OF SAID COURTt Now comes Gary Wavne Barnes» the applicant`in the above- entitled and numbered cause's and moves the court to' appoint Attorney to disclose all exculpatory evidence which the Southwestern 'Institute of Froenic Scence Laborotory has in it's possession and further that the evidence in the below.

SWIFS files to be obtainedv for the courts review in a determin ation as to what evidence therein is exculpatory and finally th§t the court order appointment of Attornev in a review of this below listed evidence as the applicant has been convicted in the above stated cause numbers where the evidence which was presented as the State's Exhibit's is not the actual evidence of the crime scence- I.' `The applicant shouldl be appointed an Attorney as the applicant was granted UNA testing on Febuary 20, 2009 uneder chapter 64.03 and the said testing was preformed by the (DPS) department of Public Safety in number LlD~184098 the the results was submitted bef¢re this court on June 8, 2009.

Page l.

Barnes 25 v II.

A review of the records of the Dallas Police department (DPD) and the files of the Southwestern Institut of Froensic Science Labobotory (SWIFS) showsl proves that the State .has introduced presented and tested the evidence which is not, was not _the evidence of the actual crime scence.; III.

The applicantv was convicted in (2) two trials where the State filed itls intentions to use Extraneous offenses/ Extran- eoue Evidence pursuant the Rules 404 and 609 of the Texas Rulzs~ of evidence and article 37.07 of the code of criminal procedures, The Statepresented at trial evidence in -SWIFS file numbers 80-P-1632 and 180-P~1635 and the (DPD) file numbers 506950-L and 307064-L for offenses .that occurred of July 34, 1980 with indictment's file numbers of F-Sl-llOS and F-81-1027.

The State presented at trial an Extraneous offense and evidence of SWIFS lab number 80-P -2593 and DPD file number 482955-L as an Extraneous offense being committed 'prior to and before the offerns was committed on July 4, 1980.

The State presented at trial .an Extraneous offense and evidence of the SWIFS lab number 80-?-2971 and DBD? file number 558910 L , as an extraneose offense that was eommitted after the offense of july 4, 1980 on Dee. 2, 1980.

Page 2.

Barnes 3.' IV.

The evidence that was tested at the DPS in number LlD- 184098 is not and can not be the evidence of the actual crime scence.

These are facts that will be shown by a review of the above listings and filing systems of both the Dallas Police Department and the southwestern Institute of forenic Science dated and numbering files.

The SWIFS LAB files shows that the evidence in files numbers dO§P-ld32 and 80 -P-1635 was on 'file in the lab _prior toe and before the date of the offense of July 34, 1980. 4 7 `The¢files shows that the extraneous in SWIFS files number 80-P-2593 and' DPD file number 482955-L was on file at the lab before the crime was committed July 4, 1980. and that there is error in the lower numbers of 80-P-1632 and 80-P~1635 being the evidence of /a crime that was committed on july as these are numbers of-the Jan-Febuary 1980.

The evidence that has been tested as well as presented in .this court as exhibits and in the DNA hearing on june 8,. 2009 is not the evidence of the actual crime scence. vi The applicaIt request the appointment of Attorney to present the issues of the testing the 'actual evidence of 'Page 3. `.'.

Barnes 4. the crime scence still on file at the SWIFS lab in the showing that the applicant is actuall innocence and that the wrong evidenced has been accepted as the- state's exhibit's in a jury trial 'and in the chapter 64{02 hearing. l This evidence that 'can be tested is filed in the SWIFS files as P~80 2784 and P-2790 of July 4, 1980 that can be tested in showing'?;{ the applicant is actual innocence and that the victims is the actual victim of the offense that occurred on the date of July 4, 1980., in the process of motioning the court said attorney can petition this court lfor the testing procedures as should be applied under chapter 64.03, 04.

The applicant requests a review by the court 's determination as to what evidence rtherein is exculpatory and that the court appoint Attorney of record , so that a Order can be filed that a copy of the portion of the DPD and SWIFS files deemed to be exculpatory be sealed for the future review by the appellate court when necessary. ) Wherefore, Premises Concidered, the applicant prays that this court Grant this motion for the appointment of counsel in reviewing this above mentioning in assuring that the applicants constitiutional rights has been protected; y Submit ;@"M ' 18814 Ramsey Rosharo, Texas 77583

Page 4.

Mar. 18, 2014 ` _ Gary Wayne Barne§;éb££§£g , t _ ' 1100 FM' 65 ey Rosharon, T:q@§g$€g§BAH[]:Z] " 841'{"""'5§'7.\ ~;. . elaine-nms Usi iv ;‘LERH ' d ' oTEXAS DEPUry

Office of the Clerk Gary Fitzsimmins Frank Crowley Courts Bldg.

133 N. riverfront LB 12 Dallas Texas 75207- 4313 Dear Clerk: *Enclosed “please find the applicant motion for the APPOINT¢ MENT OF COUNSEL} to be filed in the CRIMINAL DISTRICT CCURT THREE stamp file a copy and return to the appliucant; I'll thank you in advance' for your time and consideration in the request; Respectfully~Submitted;

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Decembe§f _12,- 2014 Gary Barnes, #318814 Ramsey l_:‘lnit ` 100 FM 655 Rosharon, Texas 775 83

Dear Mr. 'Barnes, Eiiclosed please find a copy of the Article 64.04 Findings in F81-01027-J, F81-01105-J and F81-()2518-J that were signed by the Judge yesterday Should you choose to appeal these findings you must notify the court within 30 days of the date the order was signed at the following address: Judge Gracie Lewis Criminal District Court No. 3 Frank Crowley Courts Building N. Riverfrom Blvd_, 6“‘ Floor / Dallas, Texas 75207 Best of luck to you in the future.

Sincerel)/§, data Julie Dou_eet_ ’Assistant:Public Defender

~6 133 N. Eliverfront B|vd., 9"‘ F|oor, LB 2 ~6 Dallas Texas 75207-4313 ~6 Phone: (214) 653-3550 ~6 Fax: (214) 653-3539 ~»6~ THE STATE OF TEXAS EXHIBiT F cAUsE Nos. F81-01027-J, F81-01105-J, Fsi-ozsis_j?@/q@gc / " 50 l / iN THE CRIMI`N“:§§ "+'j)»/_' ‘1'7/@: 36

@. . bw» ’ , l § ._\ y 4£{,;€/§¢'{ 'IYHQNS v. § DISTRICT T #3 'O.. Her § v j 15 GARY wAYNE BARNES § DALLAS CoUNTY, TEXA?§P//rzy ARTICLE 64.04 FINDINGS ON THE RESULTS OF POST-CONVICTION DNA TESTING Pursuant to article 64.04 of the Texas Code of Criminal Procedure, this court makes the following findings: l. ln February of 1981, Barnes was found guilty of the aggravated rape of Y.O. (cause number F8»l -01027-QJ), the aggravated rape of E.R. (cause number F81-01105-QJ), and burglary of a habitation with intent to commit rape and theft (cause number F8 l - f 02518-]). The jury set punishment at confinement for life and assessed a $10,000 fine in each case. l v On October 25, 2007, Barnes filed a formal motion for post-conviction DNA testing under Chapter 64 of the Texas Code of Criminal Procedure. The State filed a response stating that it had no opposition to Barnes’ request for nuclear DNA testing of what appeared to be vaginal smear slides collected during the victims’ sexual assault examinations / On February 19, 2009, this Court granted Barnes’ motion and ordered the Texas Department of Public Safety (DPS) to first determine Whether the slides still in the w possession of the Southwestern Institute of Forensic Sciences (SWIFS) were in fact taken during the internal examinations of the sexual assault victims in these cases.

This Court further ordered DPS to conduct DNA testing on the slides and on known samples from Barnes and the victims. . In a report dated May 13, 2009, DPS informed this Court that it had conducted a v visual inspection on the slides and confirmed that cellular material was detected on the slides. . In the same report, DPS informed this Court that it had completed DNA testing in these cases. \The test results indicate that: (a) Gary Wayne Barnes could not be excluded as a contributor to the sperm fraction of Item 3-1, a vaginal smear slide from Y.O. The probability of selecting an unrelated person at random that could be a contributor to the sperm fraction of the vaginal smear slide is approximately l in 6.789"million for African Americans. (b) Gary Wayne Barnes could not be excluded as a contributor to the sperm fraction of Item 3-2, a vaginal smear slide from Y.O. The probability of selecting an unrelated person at random that could be a contributor to the sperm fraction of the vaginal smear slide is approximately l in 46.15 million for African Americans. l (c) Gary Wayne Barnes could not be excluded as a contributor to the sperm fraction of Item 3-3, a vaginal smear slide from Y.6 The probability of l selecting an unrelated person at random that could be a contributor to the sperm fraction of ithe vaginal smear slide is approximately l in 79 for iAfrican Americans. (d) No male DNA was obtained from item 4, a vaginal smear slide from E.R.

. The State was unable to obtain buccal swabs from the victims for comparison purposes in these cases. . This Court further FINDS that had these DNA results been available during the trial of the offense, it is NOT reasonably probable that Barnes would not have been convicted. See TEX. CRIM. PROC. CODE art. 64.04(Vernon Supp. 2006).

Singed and entered this l l77'{ day of ' Do,¢. , 20 / §L 7& }t occ/uad 0{ MO Gracie Lewis Judge, Criminal District Court #3 EXHIBIT G Cause» numbers. F-81-1105, F-81r1027 and F~80-16530 § F:' ?. FD GARY Wayne Barnes § IN THE CRIMINAL D SH%&FT R°h PH : applicant, § COURT NUMBER THREE. 3 26 /‘.`~ \)H~' VS. § U§t:; : THE STATE OF TEXAS § DALLAS COUNTY TEXAS.

§ MOTION FOR POST CONVICTION § E'RONENSIC DNA TESTING § ’__L__ PURsuANT To chapter`64.o3 § TO THE HONORABLE JUDGE OF SAID COURT: Now Comes Gary Wayne Barnes, the defendant in the above entitled causes by and through Prg~Se Motion, pursuant to Chapter of the Texas Code of Criminal Procedures and would show on to the court in support of this motion for post-conviction Forensic DNA Testing the following; I.

The applicant was convicted in (2) two Jury's Trials where the State filed Motion of Intent to use Extraneous offenses and Extraneous Evidences pursuant to Rule and 609 of the Texas Rule of Evidence and Article 37.07 of the Texas Code of Criminal Procedures.

The State presented at trial in the causes numbers F-81-1105 and F-Bl- 1027 filed police reports of the DallAS police Department # 506950-L and 307064-L for the offenses commit- ted on July 4. 1980. The State presented evidence of the southwestern Institute of Fronsic Science Lab in numbers 80- P-1632 and 80-P-1635 as beinqvthe evidence of the crime scence of the offenses committed on July 4, 1980.

Page l.

Barnes 2.

The State predented at trial an Extraneous offense and evidence of the SWIFS Lab # 80~P-2593 and the Dallas Police report file number 482955-L for an offense committed against Janine Jay Kettering on may 10, 1980 an offense being comm- itted prior to and before the offense of july 4, 1980.

The State presented at trial in cause number F-80-16530 as an Extraneous offense and Evidence of the SWIFS lab # 80- P-297l and the Dallas police report file number 558910- L as an Extraneous offense being committed on Dec, 2. 1980 being an offense "after' the offense committed on july 4, 1980. .

In the presentation of the States case in chief the introductions of the extraneous offenses a crime that took place prior to and before the case to which the applicant was on trial and a Extraneous offense that was committed "afterll the offense to which the applicant was on trial.

In so doing the state presented a case time line as well as to show the filing systems for both the Dallas Police department and that of the Southwestern Institut of froecsic crime lab.

II.

A review of the Evidence filing systems for the offenses committed prior to before and after proves, shows that the evidence sumbitted in open court at the trial as well as on June 8, 2009 at the chapter 64 hearinq is not and can not be the evidence of the actual crime scence.

The evidence that has been presented and tested in the numbers of "BO-P-1632 and 80~P-1635 was on file in the SWIFS lab* Page 2.

Barnes 3. before and prior to the extraneous offense` crime committed May 10l l980.and the SWIFS filing systems shows that the numbers 1632 and 1635 . was reported in the month of Feb uary 1980 and (6) six months prior to the offense being committed; The evidence that has been tested bv the Depart- ment of public in file Numbers LlD-184098 shows in the 'Submission Information report " the names of the victims are at error, naming both Renteria and Ketterninq as the victims.

The SWIFS filing systems has recorded that the Extran- eous offense evidence 80-P-2593 was on file after the numbers- of 1632 and 1635 and these numbers are not the evidence numbers for crimes of July 4, 1980.

The SWIFS files shows that the evidence for the crimes committed on july 4, 1980are in the numbers of 80-P2784 and 80-?-2790 and this said evidence in still on file at the lab and can be tested to showing that the victims are in fact the victims to the offense which was committed no July 4, 19880 and also showing and proving that the applicant in actual innocens.

This evidence proves that the appliaant did not commit the crimes to which he has been convicted as there is biological material secured inm relation to the above -entitled and numbered causes , including but not limited to a viginal smears from Renteria and Oviedo as well a reference samples from the applicant.

Despitepast testing of the wrong evidence, the wrong evidencef The newly discovered evidence of the july 4, 1980 Paqe 3. 'Barnes 4. presently sits in the SWIFS lab a vaginal smear still remains available for testing. The evidence was in the possession of the State during the prosecution of the offense and remains in the poession of the State , being housed at the SWIFS lab.

III.

There was DNA testing done in this case. Theese test results did not show the applicant is the person who has committed the offense s to which he has been convicted as that evidence has never been tested which has not allowed for the court to make a favorable finding as the actually evidence of the crime scence has never been presented to the court or has that evidence been tested.

IV.

Idenity was and is an issue in this case. It is a reasonable probability that the applicant would not have been prosecuted or convicted had the court had Knowledge that the evidence which has been presented , introduced as state's exhibits and tested by the Texas Department of public Safety is not the actual evidence of the actual crime scence.

V. The applicant makes this request in the interest of justice , and this request is not made to unreasonable delay the execution of the sentences or administration of Justice.

Page 4.

Barnes 5.

WEEREFORE, PREMISES CONSIDERED, the applicant herein wwould respectfully Pray that this court order the requested DNA testing be done, Applicant prays pfor such other relief as to which the applicant may be entitled.

Respectfully Submitted G§iy z:ene!%aa:es #3§§814 1100 FM 655, Ramsey Unit Rosharon, Texas 77583 Pro-Se mayer EN\> SOH> Page 5. _‘ , , GARLAND CRIME LABORATORY ` LlD_184098 Information Sheet Case # LlD- i§qi §§ § Date: §Zio 293 Examiner Initials: y[\_i Page # TMB LMG AP ALS coNTRoLs (+) i:] ` ' (+) i:i (+) i:i <-) El <-) El <-) El

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BARNES LAB REPORT INFORMATION: Texas Police Lab Case # for all involved: #LlD-184098 RENTERIA Elizabeth (Rape Date 7/4/80) SWIFS Lab # FL80P1635

-T;H$ 6 jiL_ >{ Agency #506950L law ggéwfi@ Agency case #/ cause # Fsi-oi 105 J FEK¢ ' NEW LAB # 08P0918 (Assigned by SWIFS in 2008 when original specimen appeared to be missing from storage) Per Barnes, her number is also 80P2784 LAB riner/ue 6/12/08 - Lab could NO'I` find evidence in storage New Lab # assigned for administrative purposes 2/26/09 K2 Vag Smear located in SWIFS Storage with#’s 80P1635/F8101105 2/27/09 Smear sent to State Lab (Garland) c/o Manuel Valde'z 3/10/09 Garland Lab logged in slide holder #80Pl635(K2) Label: CD K -------------- _(Name redacted but letter K clearly visible as first letter) 1/16/01 Slide 80Pl635 K2 SBW (probably indi- cates stain used) Shows sperm with tail

OVIEDO Yvette (Rape Date 7/4/80) SWlFS Lab #FL 80 Pl632 x Agency # 307064L NEW LAB # 08P09l9 (Assigned by SWIFS in 2008 when original specimen appeared to be missing from storage)

'r¥~¢ 5' 13 A )~i¢>v. 1479 Nu/v)ee.e _ PE£, BA RML'-'S Dates may be in error using original #80P1632 Agency Case/Cause # F81-01027 J Per Bames, her number is also 80P2790

KZ Vag. Smear (FL#80P1632) 7/17/08 - SWIFS could _ NOT locate evidence in storage. New. Lab # assigned #08P0919. /3/17/09 Lab loath Kz smear diggij \2/27/09 Lab sent smear to Texas State lab (Garland) C/o Manuel Valdez 3/10/09 Garland lab logged in l clear bag & 2 sealed slide holders with 3 slides (#SOPI 632)#1 slide contains sperm with tails; #2 & #3 contain unstained cellular material (Garland converted these 3 slides to 6 slides for test purposes)

l

ORDAN Cvnthia (Rape Date 12/2/80) SWIFS #FL 80 P297l Cause #F801653O DPD #558910L BARNES, Ggy SWIFS #FL08P1542 (Buccal Swab) 2009 Lab Case # LlD 184098 Case #F8101027 Case # F80 16739 Dism Case #F80 16740 Dism

TEsT/M 6

12/3/80:K1 vag. swab KZ vag smear (found in lab on 7/08) K3 blood sample K4 pubic hair combings KS pubic hair cuttings K6 anal smear on slide Results of testing: Kl - seminal fluid KZ - sperm K3 - blood group K4 & KS ~ nothing K6 - no sperm K7 - blue jeans - seminal fluid & sperm K8 - bedspread - nothing (No longer in lab) 4/8/09 - K2 used to extract DNA (Became KZTI) divided to yield two fractions: female epithelial cells & male sperm cells Results of testing: Epi. Cells: No DNA profile Could be obtained Sperm - No DNA obtained 'l`hus n_o comparisons possible l/9/81 Ql Blood Sarnple QZSaliva Sarnple Barnes is Type O, PGM Enzyme Type 2-1 & Secretor of Bld Blood Group O(H) 9/9/08 Buccal Swab (08P1542) Stored in lab 4/8/09 Portion of sample amplified For DNA typing Results: No comparison to Jordan possible because there was no DNA available in' Jordan’s samples KETTERNING lennen (Rape Date 580) #FL 80 P2593 DPD #482955L

/\10 `TES T/A€ RENTERIA Joe (father of Elizabeth) Case # or SWIFS #FS l ~025 l 8 Texas Crime Lab Case #LlD-184098 (2009)

Cause No. F80-16530-J, F81-01027-J F81-01105-J & F81-02518-J THE STATE OF TEXAS ( lN THE CR|M|NAL VS. ( DISTRICT COURT #3 GARY WAYNE BARNES " ( DALLAS COUNTY, TEXAS AFF|DAV|T lN SUPPORT OF MOT|ON FOR DNA TESTING l am Gary Wayne Barnes. On February 25, 1981, in Cause Numbers F81-01027-J and F81-01105-J, l was found guilty of aggravated rape and was sentenced to life in the penitentiary On February 25 1981, in Cause Number F8l-02518-J, l was found guilty of burglary of a habitation with the intent to commit rape and was sentenced to life in the penitentiary On February 27l 1981, | was found guilty of aggravated rape in Cause Number F80-16530-J and was sentenced to life in the penitentiary Notices of appeal were filed in these cases on |Vlarch 20, 1981. _The appeals were denied, and the mandates were affirmed on November 5, 1982. l state that the following is true and correct l. To the best of my knowledge, there was evidence obtained in relation to these cases that consisted of biological material This evidence included, but is not limited to. rape kits taken on the vlctims. The evidence was m the possession of the State during these cases 2. The evidence, to the best of my knowledge, was not subjected to DNA testing or comparison DNA testing with my DNA. The testing not being done was through no fault of my own.

3. The ultimate question in these cases was whether l, Gary Wayne barns, committed the offenses of aggravated rape and burglary of a habitation with the intent to commit rape. There is a reasonable probability that it would show that l did not commit these offenses if DNA forensic testing was done on the biological materia|.

4. l make this request in the interest ofjustice and not to unreasonably delay the execution of sentence or administration of justice.

I Gary wayne Barnes TDCJ-ID 318814 am presently incarcerated in the Texas Department of criminal Justice. Institutional Division at the Ramsey One unit llOQ Fm 655, Rosharon, Texas 77583 and declare under penalty of perjury that the foregoing is true and correct; Executed on this the 31 th Day of March g ff$/eel\i “t`i\aot blm aeilf 2014. z E)thibit H F!t§p = - - ~ merit 23 iii szz CAUsE No'. FSOEVG§~BQJJZEM%YQN J F81 01105§ 5§§1€02:5£ ms THE sTArE OF TEXAS . ` » § ` ~ f UiMECRIMlNAL

vs'.` ' _ ` .. ~ _. § DISTRICTCOURT#3 GARY WAYNE BARNES ' ' w § § - DALLAS COUNTY, TEXAS Mo_TIoN To WITHDRAW As CoUNsEL' ` TO. THE HONORABLE JUDGE OF SAID COURT:

_ _ COMES NOW »Michelle Moore,' attorney of record for the Det`endant in ` ` !-`10‘7e_1 styled and~__‘ numbeiet` t ..-;ca;‘. es and moves the Court to enter- -an -~~ ~ -- -»-_ _.'; _ , l`-L ¢-"v.'-_'

" order permitting movant to withdraw as counsel of record in this cause for the following reasons: ' ' _, I.

Counsel was appointed on this case'by Judge Bobby__Francis.

Gary Wayne Barnes was sentenced to life in all of his cases. Mr. Barnes `has since asked for and received post-conviction DNA testing in all of these cases. ` rr _'_ nw _, - m_____. _, _ ._ . _ ' . ` III.

A finding was entered in Cause Numbers F81~OlOZ7-J, F81-Ol lOS~J and F81-02518-J, ._on June 8, 2009, which stated that had the DNA test results ` been available during the trial of these offenses, it is N.OT reasonably _ probable that Barnes would not have been convicted The test results in these cause numbers which did not exclude Barnes as the perpetrator in these crimes were entered into the court file. ' ` _ _ IV. ' in Cause Number F80-l6530-J, no male profile was found by testing the rape kit from the original investigation of the case. Because STR testing ‘ was utilized in Barnes' case, the judge denied additional Y-STR testing r"\ f`~ v - l V. _ All' testing in this case has been granted and received .No other testing will be done`through Article 64 of the Texas Code of Criminal`Procedure. . VI.

The granting of this Motion will not have a material adverse effect on the _ interests of the defendant as he may file his notice of appeal.' - VII.

Counsel requests that this motion be filed.

L'--~~~-s~»~'»¥-'--_-- `V\-Hlt‘ RE §31?PE Movant pra/stne Couitgrant thrs“inot _<11 ,.11 111 der ___ _ _____ that Michelle Moore be released as counsel of record 1n this cause. ~`~~-~ ~ -~ ~' " ’"_'~“j" "__ “;Respectfully subm1tted WM%W Mich§lle Moore _ ' - Assis ant Public Defender ` _v " " ' ` " ' " " -` 133 N. IndustrialBlvd.,LB_ 2 n Dallas, Texas 75207, (214) 653¥3564 ` State Bar No. 14362150 ' `ATTORNEY FOR DEFENDANT

CERTlFlCATION l hereby certify to the Court that a true and correct copy of the above and foiegoing motion has been served on the Assistant District Attorney of ' Dallas County via inter-office mail on the same date of filing herewith /71 711/1 1 /m Michelle Moore

ORDER On this Jgf_d_ day of g 11 §§ f 2009, the Court, havin_ considered the above and foregoing m v DENIED.“ 'v otion find the same is hereby® ' h

' Judge Gracie Lewis Criminal District Court #3v n 1 5 v

Exhibit l Cause Number: F81-01027-J F81-01105~J F81~02518-J THE sTATE oF TEXAS § IN THE CRIMlNAL vs. § DisTRICT- coURT. No. 3 GARY wAYNE. BARNEs ` w § DALLAS coUNTY, TEXAS ORDER DENYING DEFENDANT’S REOUEST F()R RETESTING The Defendant, Gary Wayne Barnes, appearing pro se, has filed a request with the Court to consider a media produced videotape of the DNA test taken pursuant to a post- conviction DNA testing in the above-numbered and styled cause to support his request for retesting.' The Court finds that Defendant’s request fails to meet the requirements of Chapter 64 of the Code of Criminal Procedure in that he has shown no evidence that the test conducted was faulty, or if it was faulty, that an uncompromised sample still exists. movant, Gary Wayne Barnes,~ #08063282 N 2W-2, P.O. Box 660334, Dallas, Texas 75266, TX 75207', and to counsel for the State. sIGNEDchis 11sz day of /\/6\/' ,2009 §§ h m U(M GRACIE LEWIS, th;E cRIMINAL DISTR!CT coURT No. 3 DALLAS coUNTY', TEXAS

EXHIBIT J F81-01027-QJ F81-01105-QJ F81-0251'8-J THE STATE OF TEXAS § IN CRIMINAL DISTRICT vs. § COURT NUMBER 3 OF . GARY WAYNE BARNES § DALLAS COUNTY,`TEXAS ORDER GRANTING GARY WAYNE BARNES’S MOTION FOR POST-CONVICTION DNA TESTING Barnes was charged with the aggravated rape of Y.O. (cause number F81-01027- QJ), the aggravated-rape of E.R. (cause number F81-01105-QJ), and burglary of a habitation with the intent to commit rape and theft (cause number F81-02518-J). A jury found appellant guilty and assessed a life sentence in all three cases; the jury also imposed a $10,000 fine in each case. On August 31, 1982, the Dallas Court of Appeals affirmed his convictions On October 25, 2007, Barnes, through court-appointed counsel, filed a formal - motion for post-conviction DNA testing under Chapter 64 of the Texas Code of Criminal Procedure. The State filed a response to Barnes’s motion on February 18, 2009,. agreeing that Barnes had met the statutory requirements for entitlement to post-conviction DNA testing. Accordingly, the State does not oppose DNA testing of what appear to be vaginal smears that still exist in connection with these cases. The State also does not oppose testing, for comparison purposes, of known DNA samples to be obtained from Barnes and the victims, and any of the consensual sex partners that the victims may have had in the seventy-two (72) hours prior to the rape. The State does not, however, waive any arguments regarding the integrity of the evidence to be tested or the interpretation of any test results under Chapter 64 ora subsequent 11.07 writ.

The Court, after considering the pleadings of both parties, the requirements of Chapter 64, the record in these cases, and the Court’s own knowledge and experience, grants Barnes’s unopposed request for DNA testing of the evidence currently located at the Southwestern Institute of Forensic Sciences (SWIFS). The Court also grants DNA testing, for comparison purposes, of saliva samples to be obtained from Barnes and the victims, and any of the consensual sex partners that the victims may have had in the seventy-two (72) hours prior to the rape.

The Court makes the following findings in support of its rulings: Exz`stence of Evidence Containing Biological Materl'al l. In relation to this case, SWIFS still possesses two slides, which appear to be vaginal smears taken during the victims’ sexual assault examinations at Parkland Hospital.

2. The vaginal smears were secured in relation to the offenses that are the basis of the challenged convictions 3. The evidence appears to be in a condition making DNA testing possible.

4. The evidence was in the State’s possession during the trials of the offenses.

5. The evidence has been subjected to a sufficient chain of custody.

6. Additionally, for comparison purposes, the State will attempt to obtain known DNA samples from Barnes and the victims, and any of the consensual sex partners that the victims may have had in the seventy-two (72) hours prior to the rape.

7. Because SWIFS has been unable to confirm the nature of the slides it has labeled “KZ” in each of the victim’s specific laboratory numbers, the slides need to be examined to determine Whether they Were taken as part of the internal examinations of the victims or whether they contain hair or fiber evidenee.

8. Accordingly, Barnes has met his burden of demonstrating that evidence containing biological material still exists in relation to these cases and is in a condition making DNA testing possible. See TEX. CODE CRIM. PROC. ANN. art. 64.03(a)(l)(A) (Vernon Supp. 2008).

Identily 9. Identity was and is an issue in these cases. The perpetrator was a stranger to the victims. Barnes’s defense at trial was misidentification; his wife testified that he was at horne the night of the offenses. lO. Accordingly, Barnes has met his burden of demonstrating that identity was or is an issue in these cases. See TEX. CODE CRIM. PROC. ANN. art. 64.03(a)(l)(B) _ (Vernon Supp. 2008).

Sz'gnijicance of Exculpatory Results ll. Barnes has met his burden of establishing, by a preponderance of the evidence, that he would not have been convicted if exculpatory results had been obtained through DNA testing. See TEX. CODE CRIM. PROC. ANN. art. 64.03(a)(2)(A) (Vernon Supp. 2008). The DNA test results will only be considered exculpatory for purposes of Chapter 64, however, if (l) testing yields a male DNA profile that matches neither Barnes nor any male with whom the victims engaged in consensual intercourse in the seventy- two (72) hours prior to the rape; and (2) testing yields female DNA profiles that match the victims, thus confirming that the biological evidence tested was indeed collected from the victims in these cases. Moreover, DNA test results will only be considered exculpatory if a visual examination concludes that the slides were obtained from internal examinations of the victims; test results will not be exculpatory if a visual examination concludes that the slides contain hair or fiber evidence.

Administration of Justice Barnes has met his burden of establishing, by a preponderance of the evidence, that his request for DNA testing is not made to unreasonably delay the execution of sentence or administration of justice. See TEX. CODE CRIM. PROC. ANN. art. 64.03(a)(2)(B) (Vernon Supp. 2008). Barnes is currently serving his sentences in these cases.

Choice of Laboratory 13. DNA testing will be conducted by the Texas Department of Public Safety (DPS). See TEX. CODE CRIM. PROC. ANN. art. 64.03(c)(1) (Vernon Supp. 2008). l 14. The proposed testing could consume the evidence, and both parties have agreed to this condition.

Based on the above findings, the Court GRANTS Barnes’s request for post- conviction DNA testing of what appear to be vaginal smears currently in the possession of SWIFS. The Court further grants DNA testing, for comparison purposes, of known saliva samples from Barnes and the victims, and any of the consensual sex partners that the victims may have had in the seventy-two (72) hours prior to the rape.

The Court ORDERS that: l. Within ten (10) days of the date this order is entered, this Court shall issue a bench warrant, transferring Barnes from the Institutional Division of the Texas Department of Criminal Justice to the Dallas County Jail. Upon Barnes’s arrival at the Dallas County Jail, an agent of the State shall collect a buccal swab, thumbprint, and photograph 2. An agent of the State shall transfer Barnes’s buccal swab, thumbprint, and photograph, along with a copy of this order, to the Department of Public Safety Laboratory, attention: Manuel Valadez, 350 W. I-30, Garland, Texas 75043, telephone 214-861-2000, maintaining a proper chain of custody.

3. Within a reasonable amount of time after this order is entered, an agent of the State shall attempt to obtain buccal swab DNA samples from the victims in these cases. The State shall also attempt to determine whether the victims had consensual intercourse within seventy-two (72) hours of the rape. If so, the State shall attempt to obtain buccal swabs from those consensual sex partners. The victims and their consensual sexual partners have no legal obligation to provide their DNA samples to the State.

4. If the State obtains DNA samples from the victims and any consensual sex partners, an agent of the State shall transfer the samples to the Department of Public Safety Laboratory, attention: Manuel Valadez, 350 W. I-30, Garland, Texas 75043, telephone 214-861-2000, maintaining a proper chain of custody.

5. ,DPS shall, upon receipt, visually inspect the slides to determine whether the slides were obtained during internal examinations of the victims or if the slides contain hair or fiber evidence, Upon completion of the visual inspection, DPS shall notify all parties of it conclusions regarding the nature of the slides.

6. If the slides are confirmed to have been taken from internal examinations of the victims and do not contain hair or fiber evidence, DPS shall conduct DNA testing of the slides and reference samples|.

7. The DNA testing shall be conducted under reasonable conditions designed to protect the integrity of the evidence and the testing process.

8. The DNA testing shall employ a scientific method sufficiently reliable and relevant to be admissible under Rule 702 of the Texas Rules of Evidence.

9. 4 On completion of the DNA testing, the results of the testing and all data related to the testing required for an evaluation of the test results shall '~be immediately filed with this Court and copies of the results and data shall be served on then movant, via his attorney of record, Michelle Moore (Dallas County Public Defender’s Office, 133 N.

Industrial Blvd., LB 2, Dallas, Texas 75207); and on the attorney representing the State, Amy Sue Melo Murphy (Dallas County District Attorney’s Office, Appellate Division, N. Industrial Blvd., LB 19, Dallas, 'l`exas 75207). lO. The State of Texas shall bear the costs of all testing conducted pursuant to this order.

THE CLERK IS FURTHER ORDERED to send a copy of this order to: (l) Department of Public Safety Laboratory, attention: Manuel Valadez, W. I-30, Garland, Texas 75043; ' (2) Amy Sue Melo Murphy, Dallas County District Attorney’s Office, Appellate Division, 133 N. Industrial Blvdi, LB 19, Dallas, Texas 75207; and \ (3) Michelle Moore, Dallas County Public Defender’s Office, 133 N.

Industrial Blvd., LB 2, Dallas, Texas 75207. ,i Signed and entered this lq_lcllay of la Wl)'\ , 2009, _ , \ Judge Gracie Lewis ` Criminal District Court No. 3 - Dallas County, Texas CONCLUSION The movant request that the court consider this appeal of the findings of the DNA testing in the actual crime scence_ evidence has been withheld, and the evidence of a set of unrelated offenses has been tested through no fault of the movant: In the interest of justice the movant has shown that he has been illgeally convicted using falty evidence that has nothing to do with the offenses committed on July 4 ,1980.

Movants Attachements and~ Exhibits in' support of the facts and i_inaa: jurists of reason would find it debateable that the evidence presented, introduced and exhibited as the states Exhibit's can support the convictions, Verdicts, Judgements and the sentences where the movant has a valid claim s of the denial of constututional rights.

Wherefore Premises considered movant prays that this court grant leave to file an appeal as the movant has shown that he has been granted DNA Testing but through no fault of his own the wrong evidence was tested; ' The actual crime scence evidence is still on file and with this being the case and the imformation given in the court files , records the movant is entitle to a new trial in violation yof brady V. Maryland, as the actual crime scence evidence has been withheld; Respectfully Submitted Ga¥¥$£:§ne_Bgrnes #318814 TDCJ-ID Ramsey Unit 1100 FM 655.

Rosharon, Texas 77583 Executed on this the 26,day ' Of DeC, 2014 ~ M §@/ &D/sz CERFIFICATE OF FILING OF SERVICE I Gary Wayne Barnes, hereby certify that I file with the clerk of the Court and' serve the following Motion of Appeal as required by the Texas Code of Criminal Proceedures as authorized by the Chapter 64.04 for DNA testing in support of this motion on this the 26 day of Dec. 2014 by placing the same in the United States mail on this the 26 day of Dec. 2014, `in the prison Unit mail-room box , first class mail the origional to ; l Gary Fitzsimmons District Clerk Frank Crowley Courts Buldg N, Riverfront Blvd LB 12 Dallas Texas 75207-4314 Gary S;yne Ba§nes #318814 TDCJ-ID 1100 FM 655, Ramsey Unit Rosharon Texas 77583 Executed on this the 26 day of Dec, 2014 \ QQL Sh/ 3\@[}6 -"5-_' -:=_::°-.~'-. =,=__."_-1_»._=1:=_-._ -.'~_'~_:'1::-=. '.'-.'1~':: c-?:-;'_=; '=_1...7~-:~'~.‘-:'-.~'- __ - oFi=iciAL No'iicE`F'R'oii/i`eo`i`iiz'i`ér é`R`ii\iiii\i'i'/».i'&_i>aéi`.`s` o`F"ri§)`EiA:s-"w P.o. Box 12308, cAPiroL s'rArioN, AusriN, TEXAS 78711 o»i=F:c1A1 BUSJNESS » sTATE o-F TEXAS ' , PENA)_T\/ Fo-R ... q 1 1 .-: 1215/2014 PRlVATE U-SE f 25 § `2-~;;: ' 313€?10521§4 BARNES, GARY wAYNE sr. . 814511627`“-':'1'(119 F Z“WRQtzjs`s`s-w On this day» the application fO-’F'i;l__f"O?' V'\irif of blébeas Corpus has been received and presented to the Court_ _ ,

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