Case Information

*1

1019-14

ORIGINAL

No. 07-13-00254-CR

| IN THE | RECENTH | | :--: | :--: | | COURT OF HAPPEALS | FEB 062015 | | FDR THE | | | SEVENTH DISTRICT OF TEXAS | Abel Arnota, Clerk | | AMARILLO, TEXAS | | | | FILED IN | | EDDIE JONES | COURT OF CRIMINAL APPEALS | | Appellant | FEB 06203 | | | Abel Acosta, Clerk |

THE STATE OF TEXAS, Appellee Brief for Appellant Eddie Jones pro.se Eddie Jones pro.se stiles - Unit 3060 FM 3514 Benumont, Texas - 77705 7-6-41-8

*2 A complete list of parties to this case includes: Eddie Jones, Appellant For The Appellant: For The State of Texas: Hon.David J. Hazlewood Hon. Jennifer Basset Attorney-at-Law Assistant Criminal District Attorney SBOT No. 09310400 SBOT #22145632 Hon. Anne M. Hazlewood Hon. W. Janet Greasey Attorney-At-Law Assistant Criminal District Attorney SBOT No. 14468350 SBOT #24045974 State's Attorneys at trial only Hazlewood & Hazlewood 1107 Avenue K Lubbock, Texas-74401 (806) 765 - 8536

Fax (806) 765-6381 Attorneys for the Determinnt/Appellant, at trial only Mike Brown Hon. Jeffrey Ford Attorney-At. Law, 1st Criminal District Attorney 1601 Broadway SBOT No. No. 24047280 Lubbock, Texas 74401 P.O. Bex 10536 (806) 763-9493 Lubbock, Texas 74408 (806) 744-5411 (fax) (806) 767-1100

State Bar No. 03164780 (806) 767-1154 (fax) Attorney for Appellant, State's Attorney on Appeal only on Appeal only

*3 Table of Contents ..... page Parties ..... 2 Tables of Contents ..... 3 Index of Authorities ..... 4 Statement Regarding Oral Argument ..... 5 Statement of the Case ..... 6 Statement of Procedure: History ..... 7 Grounds for Review ..... 8a 8b Argument ..... 9a, 9b Prayer for Relief ..... 10 Appendix ..... 11, 116 Trial Concerning Punishment ..... 12, 12b Appehunt's Point of Error ..... 13 Feelinginay Statement ..... 14a, 14b- Rightede Trial of Guilt or Juncenee ..... 14,15,16,17,18,19

*4

Index of Authorities

Cook K State, 88 Tex. Crim. 659, 288 S.w2 213, 216 (1920) - 18,1519 Heckathorne V. State, 699 S.w2 2d 8,12 (Tex. App. 11st Dist, 1995) - 15.1619 Hernandez V. State, 651 S.w2 2d 7116, 752 (Tex. Crim. App. 1993) - 151619 Hindman V. State, 152 Tex. Crim. 75, 211 S.w. 2d 182, 185 (1949) - - 151619 Seeggan V. State, 156 S.w. 2d 234, 241 (Tex. App. Corpus Christi 1987) - 1516 Wht V. State, 479 S.w. 2d 55, 56 (Tex. Crim. App. 1972) - 1615,18 Villareal V. State, 571 S.w. 2d 600, 501 (Tex. Crim. App. 1979) - 1416,17,19

STATUTES & RULES

Vernon's Ann. Texas C.C.P. art. 39.07 Texas Code Crim. Roe. Ann. Art. 38.07 (Vernon 1990) Texas Penal, Code Ann. 8 22.01 (Alapso) Chapter 21, Section 22.01 or Section 22.021, Penal Code.

lesser-included OfEuse

Bigley V. State, 865 S.w22d. 26, 27 Tex. Crim. App. 1993 Eastep V. State 911 S.w2 2d 130,132 Tex. Crim. App. 1999 Heath V. State, 819 S.w2 2d 335, 340 Tex. Crim. App. 1991 Hines V. State, 941 S.w2 2d. 198, 201 Tex. App. 1996 On the Incident Report, Sexual Assault in the first paragraph is stated that a white/ Female came to the Slatex P.D. and reported that she had been Sexually Assaulted, during the month of November 2010, hunda Sue Bernal is not white; she all spawish.

*5 Statement Regarding Oral Argument This is a short statement at why oral argument would be helpful and a Statement why oral argument should be heard.

In Volume 5 of 7 Reporter's Record, Lynda Sue Bernal Direct examination, their no proof of her age or birth-Certifante, and all through her examination the Assistant Criminal District Attorney, Ms. Tounier Bassett help the Statow Police and help Lynda Bernal buy fabricate this case. This would be helpful if the Authorities could review this case; Just to show that Lynda Sue Bernal was never rape and to show that the Statow Police Department did practiced child-parasography on Lynda Sue Bernal and her 19-year old girlfriend Destiny Shartay Dickson(12-29-96). An not filed a cross-politom, I can work and get back all the things I have lost.

Also in Appents counsel Mike Brown Attorney for the Appellant, Eddie Jones, Also cover-up for Lynda Sue Bernal, by saying Ms. Bernal date within the limitations period. Vol.5, p. 163, on this page 163 their no date; And two(5) withess testify, Ms. Jones and Lynda Bernal Mother testify that they did not know that Lynda Bernal had been rape until after she had the baby 10-11-month, R.R. Vol 5 of 7 p. 58-23, 24 p. 59-14-24 R.R. Vol 5 of 7-p. 60-3, R.R. Vol 5 of 7 p. 60-16, 17, 18, R.R. Vol p. 92-21, 32, 33, R.R. Vol. 5 of 7 p. 97-13-25, R.R. Vol 5 of 7 p. 101-1-8.

By allowed this argument to be heard; this would put a stop to all of the West Texas Town Police Department or at lease put the town's under investigation, of practiced Child-Pornography. The depiction (as in writing) of erotic behavior designed primarily to cause sexual excitement.

Yermon's Rmw. Texas C.C.9. 92. 56. 96.

*6

Oral Argument and Authorities

$$ 050

Pro se for Appellate is able to identify an error in the pretrial hearing in this case conducted on February 24-2012. The Trial counsel Mr. D. Hazlewood should have objections the state's witness List, because the list was from the Appellate who gave Mr. Hazlewood the list. Also their was a decease person on the State's witness List, and a 14-year old girl on the list that did not testified, and several's others who were include in this list, that the state's would not called to testify. Mr. Hazlewood presented $\to$ NO objections when the state filed a Motion in linine to cover-up child-pornography, when the Slatton Police Department had a turnover in Slaton P.D. And had to get a New administration. Vol. 3 of 7 P. 8, 17-24 A.R. P.H.

Defense counsel formally filed his Motion to re-test DNA of paternity C.R. P. 39). The trial court did not rule on that request in the April 13 threaring; the trial court abused its Discretion and errad in denying Appellant's Motion for DNA Testing C.R. P. 39 R.R.Vol 4 June 24, 2013. Nevertheless, counsel presents the following potential grand for appeal. Motion for DNA testing, And Motion for Motion for Discovery, Production and Inspection of evidence, in a New Case, 22 Motion for discovery policy.

The state did not give a list of witness the state intends to call or criminal history of each witness.

Mr. D. Hazlewood the Counsel for Appellate was working for the state, and was Ineffective Assistance of counsel.

How did the state get their list, the same list that Edie Jones gave Mr. D. Hazlewood,

*7 Statement of the Case. This is a fabricate sexually assaulted case, that the Sistan Police Department and the Assistant Criminal District Attorney Temeter Bassett fabricate during Trial Court. High Authorities need to look or review the cross-examination of Ayuda Sue Bernal and review all of this that Ho-se Eddie J. Torres is making them, like the Sistan Police incident report 11-00-968 10 Bernal intervening with 8 segeant Robby S. Wedeking and Ms. Bernal withess statement by Sergeant Robby S. Wedeking and Detective David Wood incident report 11-00-968 (1) (3) (3)(3)(3)(3) page's and the location where each officer's said the Sexually Assaulted had occurred; look at the 2012 Google-Map of the Sirets of Sistan Texas and look at the History: whether Underground, Lubbock Airport, Nov 2010-11-2 monthly history. Ms. Bernal stated in her direct examination when questions was in cold or hot, she said it was hot at 2 or 3 am. There is the month of November, in West Texas. The weather report shows cold. All fabricate of a Sexually Assaulted of a Child in the 137th District Court of Lubbock County, Texas. Grounds, Ms. Ayuda Sue Bernal did not inform anyone of the offense until more than six months after underlying incident.

Vernon's Ann. Texas C.C.B. art. 38.07. Ayuda Sue Bernal uncorroborated testimony can not support this conviction of a fabricate sexual assault of a child; because Bernal did not inform anyone of the fabricate offense until more than six months after the underlying incident. November 01-2010 to September 28-2011.

*8 The date notice of Appeal, July 31-2013 AM 10:56 Mike Brown on Appeal July 25-2013 AM 11:44 The date for Motion for New Trial July 22-2013 pm 1:43 Eddie Jones, Debandant did Not Know that a Motion for a New Trial had been filed until Jones was imprisonment at the stiles- Unit in Benoment, Texas, when he received his transcription's.

Motion For New Trial was never grant or Denied.

1. You have the incident 11-00468 report by Wedeking, R. B. You have the incident 11-004680 (2)(3) and the diagram, by Detective David Wood. C. You have Ms. Bernal interviewing, witness Statement, Google map, and Weather Underground Freezing temperature.

Hand the interviewing first and look at the Google map for the location, Then read Ms. Bernal witness Statement and look for the location and read Detective David Wood incident report and read his diagram, and you will see that this was all fabricate by the state and the State's Police Department.

Three (2) differ location of a sexually Assaulted, the Weather Underground will show that it was impossible for two (2) people's to have sex on the side of a street at 2 or 3 am, time.

*9 Ground for Review. (1) Appellant claims that, because Tex. Code Cinn. Proc. Ann. Art. 33.07 requires corroboration if the complainant failed to inform another person of the incident within six-months after the date of the alleged offense, the uncorroborated testimony of the complainant in this exercise insufficient to support this conviction. Art. 38.07 pro- Vides. (a) The court should have instirut the jury that the time which lapsed between the alleged offense and the time it was reported shall be considered by the jury only for the purpose of assessing the weight to be given to the testimony of the victim. (3) Because the state failed to present any evidence corroborating the complainant's testimony, the conviction cannot be sustained. See Tex. Code. Cinn. Proc. Ann. art. 38.07 (Venom 1990). (4) Read the incident Report #110508, incident#11-00108 by Sergeant Robby's Wodeking Slaten Peace officer, Detective David Wood, Lt. Trevor Barnes, Slaten Police officer. And read the interviewing of Ms. Lynda S. Bernal and Ms. Bernal witness Statement case #11-0508 and read the Fongle Map and look for the locations, where each office's said the assaulted occurred. Then read Ms. Bernal witness Statement and you will see that it formography. The depiction (as in writing) of erotic behavior designed primarily to cause sexual excitement. (5) There three(3) locations; and there the false sketch crime scene from Lt. T. Barnes and Detective D. Wood, and a diagram, hook at the History of the Weather Underground, http://printer.wunderground.com/history Airport/KLBB/3010/117/monthly History, html? pri $9/1/2012$ hubbeck IN. Airport. Freezing temperature All month of November; too cold to have sex on the streets.

1,2,3,4 and 5 Are All Grounds.

*10 Mentioned Grounds for Review Question's Corroborate; the word informed was used twice in this CASE; R.R. Vol. 5 of 7, p. 239-20, 22, who did Ms. Bernal informed before her six month's statute limitations period. No body.

The word Tell was never used, in R.R. Vol. 5 of 7

The word did was never used, in R.R. Vol. 5 of 7

Did you, hynda Sue Bernal Tell anyone before you had the baby. Hynda Sue Bernal, did Eddie Jones rape you. No, that question was never ask, in R.R. Vol. 5 of 7.

The word Notify was never used in R.R. Vol. 5 of 7. Hynda Sue Bernal did you Notify anyone before you had your baby. NO

The word Told was never used in R.R. Vol. 5 of 7

Lynda Sue Bernal; I told NO-body about this; Until I made the police reported, on September 29, 2012

The word Relationship was never used to see if Lynda Sue Bernal and Eddie Jones had a relationship, it was used 10 -time with Lynda Sue Bernal and the 14-year old friendly of Bernal, Destiny 8. Dickson, R.R. Vol. 5 of 7 page 59-24 p. 65-23 p. 91-13 p. 72-1 p. 72-5 p. 78.1 p. 90-7 p. 122-10 p. 176-24 p. 177-10. Who never testify for Ms. Bernal.

Threatened was used to get Ms. Bernal to make or go along with the fabricate sexual assaults. R.R. Vol. 5 of 7 page 65-1625 Threating Ms. Bernal to lie and make up more lie's.

*11

Argument

Statute exempting only victins under age of 14 from antory require- ment necessary to support conviction of sexual assault of a child without corroboration of Viction's testimony evidences legislative intent to require timely antory from victins 14 years of age or older or conviction is unsupportable on uncorroborated testimony of Viction. Vernon's Ann. Texas C.C.R. art. 38.07 Fourteen year-old victins' uncorroborated testimony could not support conviction for sexual assault of a child: Viction did not inform anyone of otherwise could more than six months after underlying incident. Vernon's Ann. Texas C.C.R. art. 38.07. Heckahorne V. State 607502223,12-13. Lynda Sue Bernal (08-08-1994) was 16 at the time the Staton Police Department, Sergeant Robby 8, Wedeking fabricate the Sexually Assaulted Assistant Criminal District Attorney Jennifer Basset claims that the Sexually Assaulted occurred Sometime in November 2010. R.R. Vol. 5 of 7. page 14-15-25. Also MS. Jones did not know about the Sexually Assaulted until September 29, 2011. After MS. Bernal had the baby. R.R.Vol- 5 of 7 -p. 58-23,24 page 59-14-24, R.R.Vol. 5 of 7 -p. 60-3, R.R.Vol 5 of 7 page 20-16,17,18. MS. Jones testify that she did not No. Amanda Eatica, Lynda Sue Bernal Mother testify that she did not know who raped her until After Matthew was born. R.R.Vol. p. 92-21,22,23. AR. Vol. 5 of 7 p. 95- 25, Amanda Eatica testify that she didn't know that Lynda had been raped. That along uncorroboration the Viction conviction. R.R.Vol. 5 of 7. page 97-13-25. Amanda Eatica also testify that the

She sted did not know that Eddie Jones had rape her daughter until Sept. 2011 when lynda Sue Bernal made the police report. R.R.Vol. 5 of 7 p. 101-1-8. CASER; Heckahorne V. State, 6073.10 .2 d 9, 12-13 Tel. App. 14th Dist. 1995 Sroggam V. State, 736 S.W. 2d 239, 241 (Tel. App. -1987

*12

Argument

My reason for you all to grunting review, is to let you all who have the Authorities, to see that in the trial Court; and during Ms. Lynda Sue Bernal Direct examination in the Reporter's Record Volume 5 of 7 , Lynda Sue Bernal and Eddie Jones Jones had a sexually relationship. Vol. 5 of 7 R Rp. 168-1516 Lynda Sue Bernal coming from Miguel Fuentes house after leaving Eddie Jones house. All so this Case was fabricate, because Lynda Sue Bernal said she was over Miguel Fuentes residence, her and Josh, and Michelle and not one of them Jose, Michelle or Miguel Fuentes testify for Lynda Sue Bernal, not one of them was call up as a witness for me Eddie Jones RRV. 169-24

In order to go to the SPOt Club you must be 18 or older, Lynda said that she been in the SPOt Club before RRV page 170-18, 19, 20.

And if Lynda Sue Bernal was allowed to leave Miguel Fuentes residence at $2^{\prime 00}$ or $3^{\prime 00}$ AM. time, why didn't Miguel Fuentes and Michelle and Josh get charge with Child-endangerment for Allowed a 16 -year old girl to leave their home at that time of night. Also why didn't Lynda Sue Bernal, another Amanda Marie Gatica didn't get charge for Child-endangerment for Allowed her daughter to walk the streets at that time; Ms. Gatica also did not go to the Station Police Department with her daughter; why, because Ms. Gatica now about the relationship her daughter was having with Eddie Jones, R.R. 166 5of 7p.12,1-21 False diagram RRV. 5 of 7 page 193-16 195-56,78.

State Exhibit 6 through states exhibit 27 RRV. 5of7-161-11, 12, 13. Neckathorne VI. State, 6th 340.2d 9, 12-13 Tel. App.

Seagren V. State, 7th 5.10.2d 239, 241 Tel. App. 1991

*13 Payer for Relief First of All; Eddie Jowes did not rape Lynda Sue Bernal, The two of us no what happen; and that is Lynda and Eddie had sox at Eddie house; Lynda came over to Eddie house at her own will; over and over. The two Lynds and Eddie did not procticed safe sex and Lynds got pregnancy and Lynds asked Eddie to go to CUs and buy her a premature box for 22:00 and Lynds look the test and told Eddie that she was pregnancy and that she went to have the baby. After having the baby; Lynds did not put Eddie Jowes name on the baby Birth-Certificate. Eddie Jowes do not know anything about DNA, but if the DNA placed him as the biological father after a new testing, Eddie Jowes will take full responsibility in helping take his son, Lynds Sue Bernal might have been 16-year old at the time, Eddie Jowes did not know, because Lynds was not in school at the time, and was driver's her mother car around Town. Lynds no all about sex, and the bird and Bee, and other's things. Lynds will need help with this boy and I am willing to help, like I told her in all of my letters that the $DA$ , would not read in court.

I Prayer for Relief; So that baby Bernal will have the opportunity that a lot of boy's have in this county; and that is to be make by his biological father, Something that Eddie Jowes did not have.

A man who has friends must himself be friendly, but there is a friend who sticks closer than a brother. Anew.

For Matthew R. Bernal from Eddie Jowes

*14

Trial Concerning Amishment

Edic Taves was convicted on the basis of the uncorroborated Testimony. Eddie Taves did his true imprisonment at the Terns Department of Criminal Justice Institutional Division on the extbancement allegations at the indictment. R.R. 1016 p. 8.

Summary of Argument

This is an Taves brief. See Taves V. State, 1995, W. 2d 230. After due diligence, and review of the appellate record and researching the potential grounds for appeal, Appellate pro se is able to find error which he, in good faith, can urge wortmating a reversal of this conviction, or a new trial in support of a relief for this Appellant See Heckathorne, 6975, 8 m 2 d at12-13. The outcry was not within the six-month statutory period. Absent timely outcry, corroboration of the complainant's testimony was required to support appellant's conviction. See Heckathone Because the State failed to present any evidence corroborating the complainant's testimony, the conviction cannot be sustained. See Tex. Code Cm. Aoc. Ann. Art 38, 05 (Lemou 1990). New trial or requittal.

*15 Appellant's Unit of Error State's Opening Statement The District Attorneys's Mr. Gresser, stated that Lynda Sue Bernal was rope in November, 2011, R.R.Vol, 50°9,415-21,22. (O)Error; In R.R. Vol, 50°7p. 16-19,15; Now District Attorneys's Mr. Gresser stated that the rope took place on the side of the street in November of 2012 Error #(2).

The trial Court abused its discretion and creed in destroying Appellant's Motion for DNA posterwity testing, ON April, 16-2012 Am. 9:49 Bine.

On the 19 of April, 2012 Counsel File A Motion to Re-test the DNA and it was Granted, but was never testing, April 23, 2012 at 9:13 am.

Presiding Judge Tobin J. McClendon II, did not instructions the jury about the laws of the lonely outery. See Tex Cape, Cm. Noe. Ann. A7, 38.07 (Verwon 1990). The 1983 Amendment evidences legislative intent to require lonely outery from Victa's fourteen years of age and older or the conviction is unsupportable on the uncorroborated testimony of the Victim.

District Attorneys, Mr. Gresser, stated twice that the Sexual Assault took place in November 2011 and 2012, but no date or day. Mr. Gresser was also trying to help fabricate this case.

Another Point of Error; In Mr. Mike Brown Appeal Brief for Cable Times, under Statement of Acts, Mr. Brown stated that Lynda Sue Bernal, date within the limitations period, on page 4 and on page 8 of the Brief, But their no date, and on the R.R. Vol. 5 p. 163 their no date, and it's do not say anything about the limitations period-period... this is another cover-up. In the Victim Police Department President Report Tiosos in the first paragraph on the first page, it stated that a white Female came to the Victim $AD$ , and reported that she had been sexually assaulted, during the month of Nov. 2010, Ms. Bernal is Spanish not white and the wordless spelled out, white, on other paragraph it W/F, error's.

*16 No. 07-13-00254-CR IN THE Court of Appeals for the Seventh District of Texas Amarillo, Texas

Eddie Jones - pro-se for Appellant is. THE STATE OF TEXAS

Jones Brief For Appellant To the Honorable Court of Appeals: Cower New Eddie Jones the undersigned pro-se of record for Appellant, and makes and files this, his Jones brief for Appellant, and would show this Honorable Court as follows, to-mit Preliminary Statement This is an appeal from the 13TH * District Court of Lubbock County, Texas, the Honorable John McClendon, Judge presiding. This is an fabricate appeal that Eddie Jones has to file. The jury consisted Eddie Jones of a fabricate Sexual Assault of a child; that the Police Department of State, Texas, Sergeant Robby Waelcling, Lieutenant Trevor Barnes, Jennifer Basset, W. Jaret Grease, the Assistant Criminal District Attorney fabricate during trial. Jennifer Basset Assistant Criminal District Attorney, David and Anne Hazlewood along with John McClendon, the Judge presiding. Cover up childpornography that the State Police Department did on the two

*17 young girl's Lynda Sue Bernal-17-year old and Bernal friend Destiny Shartay Dickson the 14-year old, when they came to the Slaton Police Department to report Eddie Jones for child support. Also detective David Wood and Ms. Deafra Page the hubbock Rape Crisis Center employee Also participate in helping Cover up child-pornography. Lynda Sue Bernal did not have sex with Eddie Jones on the streets of Slaton, Texas and Sergeant Robby Wedeking fabricate this Sexual Assault. Look at the statement of Lynda Sue Bernal and Look at the interviewing of Lynda Sue Bernal and see that there are so two location of the fabricate Sexual Assault. Eddie Jones did not testify because of the staged jury and because John McClendon, the Judge presiding, said that he would certainly admonish him outside the presence of the jury, and I'll go over some of these things in addition to my - to my regular admonishments as well. R.R. Vol. 5 of 7 page 241-38,910. They did not want me to mention child-Pornography if Eddie Jones testify.

And the DA, did not want Eddie Jones to mention child-Pornography, that why the DA, file a motion in linine, because the Slaton Police Department get cough up a year ago for practiced child-Pornography. Look at the internet and see where the Slaton Police Department get into trouble for child-Pornography. R.R. Vol.5of7p.240,20.

Read R. R. Vol. 3 of 7 p. 8, 22, 23, 24. The first detective went to jail, for P.C.P.

*18 Robby Wedeking (R.R, Vol.5, pp. 18-32)

Robby Wedeking is a police Sergeant employed by the City of Slatow Police Department. Wedeking was Advised by the Coma unications officer A. Wallace that he could Knettleed Child-Bornography on Lynda Sue Bernal-12 and her friend Destiny shartay-Dickson-the 14-year old; If he - Sergeant Wedeking could get Lt. T. Barnes to help him; by separate the two young girls away from there mother and the other adult, Vol.5 of 3 - page 23-1-13. Wedeking was the first law enforcement officer to interview the victim. Linda Bernal. Lynda Bernal went to the Slatow police station on September, 29-2011 after her six-month statutory period had expire and reported the offense. (R.R. Vol.5, p. 19) Wedeking took a statement from Bernal. The depiction (as in writing) of arstit behavior designed primarily to cause sexual excitement. Look at Mrs. Bernal intervening and her witness statement. There two location that Sgt. Wedeking said this assault had occurred and they are not one of them that Detective D. Wood indentified in his testimony. (R.R. Vol. 5 p. 24).

See the 2012 Peoples - Map of the street's of Slatow, Texas - 29366 . Look at the interviewing of Lynda Sue Bernal and the locatiby of the assault, and then read the statement of Lynda Sue Bernal and the location, then you will see that Sgt. Wedeking fabricate this crime scene up. Read Detective D. Wood incident report #H-10266(0)(2)(3)(4) page and look at his location and his sketch, All three (2) location. See Vernon's Ann. Texas C.C.P. art. 58.01.

*19 Lynda Sue Bernal Lynda Sue Bernal is Not a Vietan of a mape, Lynda Sue Bernal and her Mother Amanda Patricia came over to Eddie James Tames house several thine. Lynda Sue Bernal came over to Eddie James Tames house along, several thine to have sex with him for money. Lynda Sue Bernal did not have sex with Eddie James Tames on the street; at station Texas. The station Edice Department made up this case; So that they could practiced child-Permography on Lynda Sue Bernal and her friend, Postley Martay Dickson; the in-year old girl. 45 of 7 R.R. page 23. Sergeant Wedeking wanted to talk to her along p.78,1,2,3,4,5,6,7,8,9, - 11.12 .13 on page 73 V.R.R.S.O. RR-V-5 of 7. Lynda Sue Bernall got pregnant at 300 South Arizona street which is Eddie James Tames residence. The Station Edice Department fabricate this case. During the the trial Lynda Sue Bernal was told to go along with the DA are have her baby taken away from her. So she did what the DA told her to do. Lynda Sue Bernal did not tell her mother about this until September 28,201. A month's after the limitations period had expire. In Lynda Sue Bernal Testimony under R.R. Vol 5, p.129-190) that Mike Brown counsel for Eddie James Tames Vol. 5, p. 163 and a date within the limitations period. Their NO date at all; this is a cover-up for the trial counsel. The limitations had expire 5-month's ago. Vernorís ANH, Texas R.R. P. at, 39.07

*20 Martha Jones R.R. Vol. 5, pp.

Martha Jones is the mother of Lynda Bernal's friend, Destiny. Jones knew Lynda well. Martha Jones is the first person to whom Lynda reported the report ON September 29, 2011, Sometime after birth of her baby boy, Lynda reported the rape to Jones. See Tov. Code Crim. Proc. Ann. Art 38.07 (Veruam 1990). Thus, the 1983 amendment evidences legislative intent to require timely victory from victims fourteen years of age and other or the conviction is unsupportable on the wicerebeborat ed testimony of the victim. The victory was not within the six-month statistory period; the conviction cannot be sustained. Mr. Jones testified that Lyndal Bernal was lies. K.RR. 5 of 7 page 75-2223-24-25-76-1,2. Amanda Catkin (R.R. Vol. 5, p. 82-128)

Amanda Catkin is the mother of Lyndal Bernal, the victim. Amanda was the shepherding witness for the baby's birth certificate state's exhibit #2. The birth certificate did not have Eddie. Jones Jones name on it as the true biological father of the child Baby Bernal. Martha Jones testified that Lyndal Bernal mother, Amanda Catkin was mad because Lyndal went up to the police station and made this report. K.RR. 5 of 7 page 78, 8, 9, 10,11. Lynda Sue Bernal did not intern her mother Amanda Catkin of the offense of sexually assaulted, because the two of them's No. that Eddie Jones did not rape or have sex on the street's of Slaton, Texas, during the month of November in freezing temperature; See Weather Underground, HHgS//printer.wunderground. eew history/airport/K188/2010/11/1/11/monthly History.html? pri... Lubbock Times Airport,

*21 David Wood (R.R. vol. 5, pp. 190-212)

David Wood is a police detective employed by the Station Police Department. He was assigned to conduct an investigation at this case. Let Wood met with the Nation, Lynda Bernd and her infant child on October 4, 2011 at the Station Police Department. Wood accompanied Bernd to the scene at the offense, and composed a diagram at the area. This evidence of location was not the same location that Robby Wedeking had or describe in his incident report or the interviewing of Ms. Bernd or the typed of Ms. Bernd statement. In David Wood incident Report Tewster Bassett advised Wood to have Jones cell-phone examined in reference to Nation Bernd's allegations. Bassett saw that Nation Bernd's and Jones was having a sex relationship with each other's, and would not allowed Jones phone be seen by the jury. Look at the Incident #II-20468 page (3) of Detective D. Wood. Oct. 20-2011. Page 2 of 2.

This scene of the location was all fabricate by the Station Police Department, Stt. Robby S. Wedeking, lieutenant Trevor Barnes, Detective David Wood and Communications officer R. Wallace. See Incident report #II-00468-(1) of 12 wood and Incident report of #II-00468 of R. Wedeking and look at the 2012 Google Map of Staby, Tens Strath's and the diagram of the area and the location and the rough field sketch that Wood drew, of the fabricate crime scene. See Vernon's Run. Tens. Cell. art. 39.97.

Look at Eddie James Jones Cell-phone 306-239-5949. Look at Lynda Sue Bernd Cell-phone 306-791-3153.

*22

Deedra Page

(R.R. Vol. 5, pp. 33-55) After 11-month's, Ms. Lynda Sue Bernal met with Deedra Page the hubbock Rape Cris's Center employee to receive Bernal's report from Lieutenant Trevor Barnes who took a copy of Ms. Bernal's statement and scotted Ms. Bernal who was riding with Ms. Arwishand, Ms. Jones and Ms. Dickson to the hubbock Police Dept. to meet with a representative from the Rape Cris's Center. Ms. Page. Ms Page saw that Ms. Bernal's statement was erotic so she had to make sure did not used these word's. Ms. Bernal witness statement is identical to the detbittion of pornography. The depistion (as in writing) of erotic behavior designed primarily to cause sexual excitement. Eddie Jones name is not on the baby birth certificate. State's exhibit #2. R.R. 161.5 p. 87 Vernon's Ann. Texas (R.P. art. 38,07) After having a baby, why would a person go to a Rape Cris's Center, and after that, would not take treated, medical or surgical care, some type of treatment.

*23 CHRISTINA CART RR. Vol 5, pp. 212-144

Lynda Sue Bernal was not raped in November, 2010. Lynda Sue Bernal was not diagnosed pregnant in February, 2011. The District Attorney Tewnite Basset made all of this up, because Lynda Sue Bernal limitations period had expire. Their is no doctor's examination in regard to Lynda Sue Bernal visit with a doctor in the reported, no date, no day no time, all fabricate by the District attorney Tewnite Basset.

Lynda Sue Bernal did have sex with Eddie Jones, but she gave Eddie Jones Consent. Lynda Sue Bernal came to Eddie Jones home several's time to have sex with him for money, that why her Mother did not go to the Police Department with her, because she now that Lynda was having sex with Eddie Jones. Tewnite Basset did not let Lynda Sue Bernal friend Desthey shortay Dickson-in year old testified because the true would have come out; that Eddie Jones did not rape Lynda Sue Bernal.

Lynda Sue Bernal was prostitute her self to have money for her self and her friend Desthey Dickson.

Eddie Jones is not denied the DNA testing because Eddie Jones is not an analyst. Eddie Jones is denied that he did not rape Lynda Sue Bernal. Eddie Jones also is not denied that Lynda Sue Bernal baby is not his, but their was another man with Lynda Sue Bernal. Eddie Jones would like for a federal agent to go and question Lynda Sue Bernal how that she have had time to thank about her son life. Christine Capt. Fabricate her report when U. T. Barnes gave her Ms. Bernal witness statement.

Yennon's Ann. Texas C.C.P. at 38,09

After 11-month why would Lynda Sue Bernal visit a Rape Crisis Center, after having her baby.

*24

SEXUAL ASSAULT

SLATON POLICE DEPARTMENT
175 N. 8TH STREET
SLATON, TEXAS 79364
P (806) 828-2020
F (806) 828-2023

Event Info

| Date Reported 08/29/2011 | Time Reported 20:30 | Time Dispatched 20:34 | Time Arrived 20:52 | Time Completed 22:07 | | :--: | :--: | :--: | :--: | :--: | | Addr. Of Occ. | City | Date Occ. Range | Time Occ. Range | District | | 700 BLOCK OF E. GENEVA STREET | SLATON | 11/01/2010 - 12/01/2010 | 02:00 - 03:00 | 4 | | Grid | Shift | How Reported | Dispatch Disposition | | | Z-4 | B | IN PERSON | RPT | |

Synopsis

CALL TYPE: SEXUAL ASSAULT OF A CHILD On Thursday, 09-29-2011, at approx. 22:15 hrs. a White / Female came to the Slaton PD, and reported that she had been SEXUALLY ASSAULTED, during the month of NOVEMBER 2010. Sgt. Wedeking met with the victim and determined her 16 years old at the time of the INCIDENT. Sgt. Wedeking notified Lt. T. Barnes of the report, and took a statement from the victim, and forwarded it to Lt. Barnes. Lt. Barnes arrived and made arrangements for the victim to meet with the LUBBOCK COUNT RAPE CRISIS CENTER representatives at the Lubbock Police Dept., and escorted her there.

Dispatch Notes

17/F CAME INTO PD TO REPORT THAT SHE HAD BEEN RAPED IN NOVEMBER OF 2010 AND DID GIVE BIRTH TO A MALE CHILD IN AUGUST 15, 2011 FROM THIS ASSAULT. 9/29/2011 8:33.28 PM 21:36 #102 WILL BE FOLLOWING 17/F AND FRIENDS TO LPD TOM MEET WITH THE RAPE CRISIS 9/29/2011 9:29:27 PM 22:10 #102 ENROUTE TO LPD TO MEET WITH RAPE CRISIS CENTER 9/29/2011 10:00:34 PM

| Agency 1 | Event Status/Dispo | Event Status/Disp | Initial Investigator | | :-- | :-- | :-- | :-- | | SLATON PD | ACTIVE | 09/29/2011 | WEDEKING, ROBBY |

Classification

Classification Info

| Class | | :-- | | SEXUAL ASSAULT |

Event MO

| Hate/Bias Motivation | Domestic Violence | | :-- | :-- | | NOVE | N |

Type Criminal Activity EXPLOITING CHILDREN NO GANG/UNKNOWN

Target

OTHER Apparent Motive SEXUAL

COMPLETED

Subclass

STATUTORY RAPE

Premise

FIELD/WOODS/OPEN AREA

Type Weap/Force

PERSONAL WEAPON

Victim Activity

WALKING

Suspected Using

NOT APPLICABLE

*25

Incident # 11-00468

WEDEKING, R

On Thursday, 09/29/2011, at approximately 19:10 hours, BERNAL, LYNDA SUE (08-08-1994). W/F. came to the Slaton Police Department with her friend DICKSON, DESTINY SHARTAY (12-29-1996). B/F. her mother JONES, MARSHA RAYE (08-13-1973). W/F. TX/ID 01404291, and ARMSTEAD. CHARLETTE DENISE (11-19-1983), B/F. TX/DL 08477864. MS. BERNAL advised Communications Officer A. Wallace that she had been "RAPED" SEXUALLY ASSAULTED in NOVEMBER 2010, and had given birth to a male child on AUGUST 15, 2011. She advised the child was the result of the SEXUAL ASSAULT. Communications Officer Wallace advised MS. BERNAL that Sgt. Wedeking would take the report and that she did not need to feel uncomfortable talking to him, because he was there to help her.

At approximately 19:15 hours, Sgt. R. Wedeking met with BERNAL, LYNDA SUE (08-08-1994). W/F. MS. BERNAL was crying and appeared to be scared. MS. BERNAL advised that she had been SEXUALLY ASSAULTED by JONES, EDDIE JAMES (04-16-1955). B/M. TX/DL 07119149, during the month of NOVEMBER 2010, but did not know the day. Sgt. Wedeking noted that MS. BERNAL was 16 years old at the time she was SEXUALLY ASSAULTED by SUSPECT JONES who was 55 years old. Sgt. Wedeking also noted that SUSPECT Jones was a REGISTERED SEX OFFENDER

At approximately 20:30 hours, Sgt. Wedeking contacted Lt. T. Barnes and informed him of the SEXUAL ASSAULT OF A CHILD report that had just received. Lt. Barnes advised that he would come to the PD and assist Sgt. Wedeking and begin following up on the case. Sgt. Wedeking advised Lt. Barnes that he was going to go ahead and begin interviewing MS. BERNAL.

Sgt. Wedeking asked MS. BERNAL if she would be comfortable going to his office and explaining the details of what had happened. She advised that she would not feel comfortable. Sgt. Wedeking asked MS. BERNAL if she would be more comfortable if someone went with her. MS. BERNAL advised she would and asked if her friend DESTINY DICKSON could go with her. Sgt. Wedeking advised that would be ok, and asked MS. DICKSON to go with MS. BERNAL. MS. DICKSON accompanied MS. BERNAL and Sgt. Wedeking to his office and remained there with MS. BERNAL the whole time she was there.

Sgt. Wedeking explained to MS. BERNAL that he was there to help her and that he realized it could be difficult for her to talk about what had happened to her in front of a male, but explained to her that there wasn't a female officer. Sgt. Wedeking advised MS. BERNAL there was no reason to be ashamed about what happened, because it wasn't her fault. Sgt. Wedeking advised MS. BERNAL that he needed to know the time and place the SEXUAL ASSAULT had occurred.

MS. BERNAL advised the SEXUAL ASSAULT occurred during the month of NOVEMBER 2010, but she didn't remember the day or the date. She advised that it happened

*26

at nighttime between 02:00 & 03:00 hours while she was walking home from (a friend) FUENTES, MIGUEL ANGEL (06-02-1992), WIM, TX/DL 34823450 residence. MS. BERNAL advised Sgt. Wedeking that she did not know the address where the SEXUAL ASSAULT occurred, but stated it was near a vacant house across the street to the east of the D-J EXTREME SPORTS CLUB aka: "The SPOT". Sgt. Wedeking determined the location to be on the south side of the street. in the 700 block of E. Geneva Street, near the intersection of the 900 block of S. 2nd Street on the east side of the street.

Sgt. Wedeking asked MS. BERNAL why she had waited so long to report being SEXUALLY ASSAULTED. She advised that she never had reported it, because she was in fear that SUSPECT JONES would kill her and her mother, because he had told her that was what he would do if ste ever told anyone about what had happened. MS. BERNAL advised that SUSPECT JONES had worked with her father in the past and was a friend of her parents. She advised that he knew all about her family, and was afraid he would hurt them if she said anything.

Shortly afterwards, Lt. Barnes arrived and joined them in Sgt. Wedeking's office. MS. BERNAL advised Sgt. Wedeking and Lt. Barnes about what happened when she was SEXUALLY ASSAULTED. Afterwards, Lt. Barnes advised he would contact the Lubbock County Rape Crisis Center and make arrangements for the on call advocate to meet with MS. BERNAL. Sgt. Wedeking advised that he would take a statement from MS. BERNAL.

Practical child-Permography

Lt. Barnes left the room to make contact with the Lubbock County Rape Crisis Center to set up a meeting with them for MS. BERNAL MS BERNAL and MS. DICKSON remained in Sgt. Wedeking's office and MS. BERNAL gave Sgt. Wedeking a detailed statement about what had happened one night in NOVEMBER 2010, when SUSPECT JONES had SEXUALLY ASSAULTED her. Sgt. Wedeking typed MS. BERNAL'S statement as she gave it to him. After completing her statement Sgt. Wedeking read it back to MS. BERNAL. MS. BERNAL swore that her statement was true and correct and signed it.

Lt. T. Barnes obtained Written Witness Statements from MS. JONES and MS ARMSTEAD while Sgt. Wedeking was taking MS. BERNAL'S statement. Afterwards, Lt. Barnes provided MS. JONES' and MS. ARMSTEAD'S statements to Sgt. Wedeking. Sgt. Wedeking attached the statements to the original case report and placed them in the PD Case File with MS. BERNAL's statement.

At approximately 22:10 hours, Lt. T. Barnes took a copy of MS. BERNAL'S statement and escorted MS. BERNAL who was riding with MS. ARMSTEAD, MS. JONES, and MS. DICKSON to the Lubbock Police Dept. to meet with a representative from the Lubbock County Rape Crisis Center.

Lt. T. Barnes advised Sgt. Wedeking that MS. BERNAL met with PAGE. DEEDRA the CRIME VICTIM'S ASSISTANT from the Lubbock County Rape Crisis Center at the Lubbock PD, and that MS. PAGE had interviewed MS. BERNAL and confirmed that she told her the same things that she had told Sgt Wedeking in her statement.

*27 Lt. T. Barnes advised Sgt. Wedeking to complete the report and they would take it to the DA'S Office, present the case, and get an arrest warrant for SUSPECT JONES.

Sgt. Wedeking noted that there was no Mobile Video Recording made for this report, because MS. BERNAL met him at the Slaton Police Dept. and made the report inside the building. Sgt. Wedeking attempted to activate the In-car Mobile Video Recorder from the remote transmitter, but it did not work.

While at the Slaton PD reporting that SUSPECT JONES had SEXUALLY ASSAULTED her, MS. BERNAL talked to her mother GATICA, AMANDA MARIE (12-201971), W/F, TX/DL 01350077, by phone. MS. BERNAL advised that her mother told her that SUSPECT JONES had been driving by their residence and had also called twice, but she had not answered the phone. MS. BERNAL advised that she was in fear of SUSPECT JONES harming her or her mother, because he had told her that if she ever told anyone he would kill them.

MS. BERNAL advised that SUSPECT JONES new she had the baby and would stop by whenever he could catch her outside and tell her to bring the baby over to his house so he could see it. She also advised that SUSPECT JONES was always asking her if she had ever told anyone what had happened, and that she always tells him "NO!" MS. BERNAL advised that SUSPECT JONES constantly reminds her that she had better not tell anyone, because if she did he would kill her and her mother.

Sgt. Wedeking requested a TCIC / NCIC INQUIRY on SUSPECT JONES. The INQUIRY revealed that SUSPECT JONES had previously been arrested for a SEXUAL ASSAULT on 01/02/1992, and was convicted and sentenced to the TX DEPT. OF CRIMINAL JUSTICE HUNTSVILLE on 09/28/1992 for four years, and that he had also been arrested and convicted for FAILURE TO REGISTER AS A SEX OFFENDER and sentenced to the TX DEPT. OF CRIMINAL JUSTICE MIDDLETON UNIT on 09/08/2004.

END OF REPORT

SLATON POLICE DEPT.

NOTE: THIS REPORT ORIGINALLY WRITTEN IN THE E-FORCE RMS SYSTEM

*28 My name is LYNDA SUE BERNAL. My birth date is AUGUST 08, 1994. My Social Security I is 636-42-6042.

My DL or ID I/ is ___ / _ . My phone/I is ___. My cell phone/ is (806) 781-3753.

I live at 315 TEXAS AVE.. SLATON, LUBBOCK COUNTY, TEXAS, and I am employed by A STUDENT AT SLATON HIGH SCHOOL (12") My nearest relative is AMANDA MARIE GATICA, whose address is 315 TEXAS AVE.. SLATON, LUBBOCK COUNTY, TEXAS.

I do hereby make the following information known to Officer SGT. ROBBY S. WEDEKING, and prosecutors for whatever purpose it may serve. Furthermore, I affirm that the facts contained within this statement are true and correct to the best of my knowledge.

Sometime in November of 2010, at night (at about 2:00 or 3:00 AM), I was walking home from MIGUEL FUENTES house headed west on E. Geneva Street, in Slaton, Tx. about a block east of THE SPOT (CLUB), when EDDIE JAMES JONES pulled up beside me in his brown truck. He rolled down his window, and asked me if I wanted a ride. I told him, "NO!" He told me that he wasn't a RAPIST like everybody thought, because he went to Jail for drugs. I told him, "NO, THAT'S OK!" He pulled up some more and panked the truck, and waited until I got closer, then he got out, and I went to the other side of the street. He came across the street and said, "COME ON LET ME GIVE YOU A RIDE!" I said, "NO!" and tried to walk some more.

That's when he push a line and I tripped over the grab and fell backwards. I landed kind of on my right side. He came toward me and grabbed my right arm, and yanked me toward him. Then he grabbed both of my wrists, got on top of me and pinned me down. He kept telling me that everything was OK, and I wasn't going to hurt. He told me that he knew my family and that if I ever said anything that he was going to KILL MY MOM. He started touching me all over my chest. He kept rubbing his hands on my breasts, and I kept trying to push him away and telling him to STOP. I pushed his arms away, and he told me to shut up. He kept threatening me over and over that he was going to kill my mom and me. During this time he was jerking off my sweat pants, he pulled them and my underwear down to below the knees and told me that he wasn't going to hurt.

He kept telling me over and over to be quiet and not say anything. He unzipped his pants, pulled out his penis and told me that it wasn't going to hurt and put his penis in my vagina. I kept trying to push him away, but couldn't because he was holding my wrists. When he put his penis in me he started moving up and down working his penis in and out of me. It felt like it was forever, but it was probably only about (3) or (4) minutes. He did it until he even inside of me. After he finished, he told me not tell anyone, zipped up his pants and went to his truck. He got in his truck and left.

*29 I picked up my sweets and tried to look for my phone. After I found my phone I went home. I did not tell anyone, because I was scared that he would hurt me and my mom. He comes by my residence all of the time. Sometimes he just drives by, but sometimes he stops and asks me if I have told anybody and he always is watching me. On August 15, 2011, I gave birth a baby boy. I know that EDDIE JONES is the father, because I have not ever had sex with anyone else.

Date statement given: $09/29/2011$ , Time statement given: 21:05 HOURS - THRU - 22:10 Printed name: Lynda Bernal . SIGNATURE Lynde Bernal Above STATEMENT has been subscribed and sworn to before me. SERGEANT ROBBY S. WEDEKING, a PEACE OFFICER of the State of Texas, and pursuant to 602.002 Texas Government Code, on this ${29}^{\text{th}}$ day of SEPTEMBER . 2011. Page $\frac{3}{2}$ of $\frac{2}{2}$ .

*30

Go: gle

*31 Powered by Weather Underground, Inc. precipitation: water that falls as rain, snow, or hail; also the quantity of rain water.

$${30}^{\circ }15\text{PPE22109}$$

*32

*33

Incident # 11-00468 (1)

WOOD, D

On Friday Morning 09-30-2011 at approx. 8:00 am, Detective David Wood began assisting with follow up investigation of this case.

Wood was briefed by report Officer Sgt. Robby Wedeking as to the specifics of stated case. After conferring with Wedeking and Lt. Trevor Barnes, Wood prepared a probable cause affidavit and complaint for warrant of arrest. The described Officers traveled to The Lubbock County District Attorneys Office and met with assistant D.A. Jennifer Bassett. Following review of the afore-described report and affidavit, Bassett agreed to secure an arrest warrant for Suspect/defendant JONES, EDDIE JAMES B/M DOB 04-16-55. for the offense of SEXUAL ASSAULT OF A CHILD. The described officers then returned to Slaton to continue their investigation.

At approx. 1:45 pm, Detective Wood contacted suspect JONES by telephone and requested he meet with Wood at the Slaton Police Dept. JONES complied, arriving at approx. 2:45 pm.

Wood accompanied JONES to the P.D. interview room where JONES was seated comfortably. An audio/video dvd recording of the interview was iniated and Lt. Barnes and Detective Wood began a conversation with JONES. Following baseline conversation JONES was read his Miranda Warning which he indicated he understood. JONES waived his rights verbally and agreed to speak with stated officers. JONES was coherent, sober and reasonably articulate. JONES was made aware of the allegations against him and asked if he had ever been intimate with the victim, Bernal. JONES denied ever being intimate with Bernal but stated that he had assisted her family financially and had also payed Bernal and her Mother to clean his home on more than one occasion.

Wood took note of JONES'S body language during the course of said interview. When casually conversing, JONES would intently lean forward, but when confronted with anything criminally specific he would lean back, cross his arms defensively and assume a defensive demeanor.

Wood employed some deception (as allowed by law) and advised JONES that DNA evidence existed that indicated he had, had sexual intercourse with the victim. JONES remained staunch in his insistance that he had never engaged in sexual activity with Bernal.

At one point during the interview, JONES became angry and seemingly invoked his right to counsel. Wood and Barnes began terminating said interview at which time JONES solicited the Officers to

*34

Incident # 11-00468 (2)

WOOD, D

On Tuesday Morning 10-04-11 at approx. 11:30 am, Lt. Barnes and Detective Wood escorted Victim, Bernal to the location of the sexual assault, the 900 block of east Geneva St. in Slaton, Lubbock County Texas. Bernal advised said Detectives that Suspect, JONES, EDDIE JAMES had parked his pick-up just ahead of Bernal's path of travel, exited his vehicle and approached her on foot. JONES grabbed stated victim and forced her down at the north curbside of the described street.

Bernal re-enacted the senario by lying on the ground at this location and describing the specifics of said incident. Barnes photographed the scene and Wood drew a rough field sketch.

Bernal was then driven home. On this same date at approx. 12:15 pm, Detectives Barnes and Wood interviewed potential witness Michelle Payne w/f dob 04-28-1987 at her residence located at 650 West Lubbock st. in Slaton. Payne is a close personal friend of Victim, BERNAL. Payne was in attendance at a social gathering with BERNAL the night just prior to the described sexual assault. Said gathering was at the home of Miguel Fuentes approximately four blocks from the location of said assault.

Payne provided a written statement in which Payne describes herself becoming intoxicated with alcoholic beverages and going to sleep around 1:00 am. Payne describes BERNAL being present at the home when Payne excused herself from the party and went to sleep. Payne further states that BERNAL apparently left the residence on foot sometime after 1:00 am. Payne's statement is consistent with the victim, BERNAL'S reported timeline of events.

The described written statement was secured with this case file.

A short time later, Barnes and Wood returned to the Slaton P.D. where Wood drew a birds eye view crime scene sketch of the crime scene. Said sketch was included with this case file.

This investigation continues.

Detective David L. Wood

*35

Incident # 11-00468 (3)

WOOD, D

Virgin Mobile 906-239-5049

On Monday 10-10-2011, Detective Wood conferred with Lubbock Co. A.D.A. Jennifer Bassett vie phone in reference to this case. Wood advised Bassett that Wood was in possession of Defendant, JONES, EDDIE JAMES'S cellular telephone and wished to have said phone forensicly examined in reference to victim BERNAL'S allegations that JONES had harrassed her by phone recently in reference to the described assault and corresponding new born infant.

Bassett advised Wood that Wood would need to make application for an evidentiary search warrant Bassett e-mailed Wood the appropriate forms and Wood proceeded to complete said search warrant and probable cause affidavit for same. Said documents were scanned and electronically forwarded to Bassett for review.

On Tuesday Afternoon 10-11-2011 at approx. 1:30 pm, Detective Wood and Lt. Trevor Barnes traveled to The Lubbock Co. District Court Grand Jury room. Wood presented stated case to the sitting Grand Jury who subsequently indicted Defendant EDDIE JAMES JONES for Sexual Assault Of A Child in reference to stated case.

On Thursday Afternoon 10-13-2011 at approx. 3:15 pm, Detective Wood met at The Slaton Police Dept. with the Victim, LYNDA SUE BERNAL'S mother who made available to Wood BERNAL'S infant son's birth records and social security card. Wood made copies of stated documents and returned the originals to BERNAL'S Mother.

Said documentation included the following:

1.) Social Security card #823-26-6277 MATTHEW RENEE BERNAL. 2.) U.M.C. Health System Certificate Of Birth, MATTHEW RENE BERNAL, MALE, DOB 08-15-2011. 12:43 pm. 3.) U.M.C. patient discharge instructions, complete with dates, times etc.

These documents will be secured with this case file to assist and establishing existance and identity of the child in this matter.

Detectives Wood and Barnes, also received from Bassett, instructions for submitting the previously obtained oral swabs to the appropriate forensic lab for D.N.A., paternity testing. Wood and Barnes will be submitting said swabs to the described lab for analysis.

This investigation continues. Detective David L. Wood

*36 Case No: 11-00468 (1) continue talking with him in reference to the subject at hand. Following clarity on the subject of JONES not requesting an attorney and his wish that the discussion continue, said interview proceeded.

JONES then requested something to drink. Wood left the room momentarily and purchased JONES a 'Mountain Dew' soda from a vending machine at the Police Debt. During the duration of the interview JONES made conflicting verbal statements. Initially he advised that he had never seen Bernal's infant son. But later JONES stated that he had seen the child and had purchased diapers and other nececessities for same. JONES indicated that if it could be proven to his satisfaction that said child was in fact his, he in turn would take responsibility for the baby.

During the described interview JONES eluded to the creative theory that Bernal may have come in contact with one of JONES'S used condoms (WHILE CLEANING HIS HOME) and his DNA was thusly transferred to her in this fashion. JONES stated that he prefers not to use condoms during intercourse, which would be consistent with Bernal becoming pregnant as the result of being sexually assaulted by JONES.

At about this point in the interview, Police Chief Steven Wheeler entered the interview room and asked JONES directly if any force had been employed when sexual contact between JONES and Bernal occurred. JONES once again denied any sexual contact occurring between he and Bernal. At this time, Wheeler instructed Wood to terminate said interview and arrest JONES as per Arrest Warrant # 2011812545. Said interview was terminated and JONES was taken into custody without incident.

During the booking procedure, JONES consented to an oral swab for forensic analysis. Wood performed said swab, wearing surgical type disposable gloves and adhering to procedural norms while so doing. The swab was placed in the appropriate container, air dryed and secured in a paper evidence bag. Said bag was placed in locked evidence.

Further, Wood collected the previously mentioned 'Mountain Dew' plastic soda bottle which had been abandoned by JONES (following JONES drinking from same) in the P.D. interview room. Said bottle was also secured in a paper evidence bag and stored in locked evidence.

The DVD recording was finalized and placed with this case file.

On Tuesday Morning 10-04-11 at approx. 10:00 am, Detective Wood and Lt. Barnes met with Bernal and her infant son at the Slaton Police Dept. Bernal consented to the swabbing of her mouth and that of her son for forensic analysis. The previously described procedures were employed and said swabs

*37

*38

cause no 2011-432527 the state of texas $$ IN the ${137}^{\text{th}}$ district count Eddie Jones $\begin{array}{cc}\text{of}\hfill & amp;\text{Lubbock County, Texas}\hfill \end{array}$ Motion to Withdraw as counsel To the Honorable Judge of said count: Comes Now, David Hazlewood counsel of Record for Eddie Jones, Defendant in the above entitled and numbered cause, and would fi te this his Motion to Withdraw as counsel of Record, and as grounds therefore would show the Court as follows.

I

That A conflict has arisen between the undersigned Attorney and Defendant, which has resulted in a breakcown in communication to the extent that the undersigned Attorney does not believe that he can effectively communicate with Defendant in the manner necessary to provide effective assistance of counsel. wherefore, premises considered, Mowant asks this Honorable Court to release him. The said David Hazlewood as Attorney, of record in this cause.

Respectfully Submitted

Hazlewood + Hazlewood Attorneys at LAW 1101 Avenue K. Lubbock, Texas - T4401 Ph. No. (806) 765-8536 Fax No. (806) 765-6381

STATE OF LUBBOCK TAXS COUNTY OF LUBBOCK Swom to (or affirmed) and subscribed before me this 75 days of July 2011, by Eddie Joss

*39 Certificate of Service

At the end correct copy of the above and foregoing Motion to Withdraw as Counselors hand-delivered or mailed, postage pre-paid, to the Criminal District Attorney of Lubbock County, Texas, Lubbock Bail Bond, and to the Defendant at his last known address. Eddie Jones SOP 86391, 5/6 Lubbock County Mail, P.O. Box 10536, Lubbock, Texas 179408 by regular and certified mail return receipt requested on the day of 2012.

STATE OF TEXAS COUNTY OF LUBBock

Sword Hazlewood

Swoon to (or affirmed) and subscribed before me this 28 day of July, 2012, by Eddie Jones

Notary Public’s Signature Personally Known OR Type of Identification Produced

Biddle Jones

*40 No. 07-13-00254-CR

IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AMARILLO, TEXAS

EDDIE JONES, Appellant VS.

THE STATE OF TEXAS, Appellee

ANDERS BRIEF FOR APPELLANT

ORAL ARGUMENT WAIVED

Mike Brown Attorney-at-Law 1601 Broadway Lubbock, Texas 79401 (806) 763 - 9493 lwrbrown@nts-online.net

Attorney for the Appellant, EDDIE JONES

*41

TABLE OF CONTENTS

PARTIES ..... ii TABLE OF CONTENTS ..... iii INDEX OF AUTHORITIES ..... iv PRELIMINARY STATEMENT ..... 1 APPELLANT'S POINT OF ERROR ..... 3 STATEMENT OF FACTS SUMMARY OF ARGUMENT ..... 11 ARGUMENT AND AUTHORITIES ..... 12 I. PRETRIAL PROCEEDINGS ..... 11 II. THE INDICTMENT ..... 16 III. VOIRE DIRE ..... 17 IV. OPENING STATEMENTS ..... 17 V. THE TRIAL ON GUILT OR INNOCENCE ..... 18 VI. THE COURT'S CHARGE ..... 18 VII. SUMMATION ..... 18 CONCLUSION AND PRAYER CERTIFICATES

*42

PARTIES

A complete list of parties to this case includes: EDDIE JONES, Appellant

FOR THE APPELLANT:

Hon. David J. Hazlewood Attorney-at-Law SBOT No. 09310400 Hon. Anne M. Hazlewood Attorney-at-Law SBOT No. 14468350 Hazlewood & Hazlewood 1107 Avenue K Lubbock, Texas 79401 (806) 765-8536

Fax (806) 765-6381 Attorneys for the Defendant/Appellant, at trial only

Mike Brown Attorney-at-Law 1601 Broadway Lubbock, Texas 79401 (806) 763-9493 (806) 744-5411 (fax)

State Bar No. 03164750 Attorney for Appellant, on appeal only

FOR THE STATE OF TEXAS:

Hon. Jennifer Basset Assistant Criminal District Attorney SBOT #02145532 Hon. W. Jaret Greaser Assistant Criminal District Attorney SBOT #24045974 State's Attorneys at trial only

Hon. Jeffrey Ford Asst. Criminal District Attorney SBOT No. No. 24047280 P.O. Box 10536

Lubbock, Texas 79408 (806) 767-1100 (806) 767-1154 (fax)

State's Attorney on appeal only

*43

INDEX OF AUTHORITIES

Page CASES Almanza v. State, 686S.W.2d 157 (Tex.Crim.App.1984) ..... 18 Anders v. California, 386 U.S. 738 (1967) ..... 2, et seq. Chambers v. Mississippi, 410 U.S. at 302, 93 S.Ct. at 1038 ..... 14 Miller v. State, 36 S.W.3d 503 (Tex. Crim. App. 2001) ..... 14,15 Potier v. State, 68 S.W.3d 657 at 663 (Tex. Crim. App. 2002) ..... 15 Quinones v. State, 592 S.W.2d 933 (Tex. Crim. App. 1980) ..... 15 Scott v. State, 825 S.W.2d 521 (Tex.Ct.App.-Dallas, 1992) ..... 15 Studer v. State, 799 S.W.2d 263 (Tex.Crim.App. ..... 16 Weatherford v. Bursey, 429 U.S. 545, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977) ..... 14 Weatherred v. State, 15 S.W.3d 540 (Tex. Crim.App. 2000) ..... 15 STATUTES & RULES TEXAS CODE CrIM. Proc., art. 39.14 ..... $13-15$ TEXAS PeNAL CODE, § 22.011(a)(2)(A) ..... 3 TEX.R.APP.Proc., Rule 33.1 ..... $12;16-18$

*44 No. 07-13-00254-CR

IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AMARILLO, TEXAS

EDDIE JONES, Appellant VS.

THE STATE OF TEXAS

ANDERS BRIEF FOR APPELLANT

TO THE HONORABLE COURT OF APPEALS:

COMÉS NOW MIKE BROWN the undersigned attorney of record for Appellant, and makes and files this, his ANDERS BRIEF FOR APPELLANT, and would show this Honorable Court as follows, to-wit:

PRELIMINARY STATEMENT

This is an appeal from the 137th "District Court of Lubbock County, Texas, the Honorable John McClendon, Judge presiding. This is an Anders appeal. See Anders

*45

v. California, 386 U.S. 738 (1967). A jury convicted Appellant of Sexual Assault of a Child, in violation of $\S 22.011$ (a)(2)(A) TEXAS PeNAL CODE. (C.R. p. 67). The Judge assessed his sentence at imprisonment in the custody of the Texas Department of Criminal Justice Institutional Division for life. (R.R. vol. 6, p. 18-19)(Clerk's Record, pp. 69-71). Appellant did not testify. The evidence is sufficient to support the conviction.

After diligent review of the record, Appellate counsel is unable to identify any error that would entitle Appellant to reversal or any other form of relief. Anders v. California, supra.

APPELLANT'S POINT OF ERROR

THE TRIAL COURT ABUSED ITS DISCRETION AND ERRED IN DENYING APPELLANT'S MOTION FOR DNA PATERNITY TESTING.

STATEMENT OF FACTS

Record references in this brief are to the Reporter's Record, by volume and page (hereafter (RR vol. , p. )), and to the Clerk's Record, by page (hereafter (CR, p.*)). Appellant did not testify. The record evidence is sufficient to support the conviction. Appellant pled "True" to the enhancement allegations of the indictment.

The record evidence may be summarized as follows:

*46 In November, 2010, Appellant, Eddie James Jones, forcibly raped Lynda Sue Bernal in Slaton, Lubbock County, Texas. Lynda Bernal was sixteen years old at the time. Lynda was diagnosed pregnant, as a result of this offense, in February, 2011. On September 29, 2012, Lynda reported this offense to law enforcement. Lynda’s baby boy Matthew was born August 15, 2011. Lynda testified to every element of the offense alleged in the indictment, including forcible vaginal penetration, venue and a date within the limitations period. Lynda identified Appellant, Eddie James Jones, as her assailant. A forensic DNA expert presented testimony that identified Appellant as the father of the child conceived by this offense.

TRIAL OF GUILT OR INNOCENCE (R.R. vol. 5)

ROBBY WEDEKING (R.R. vol. 5, pp. 18-32)

Robby Wedeking is a police Sergeant employed by the City of Slaton Police Department. Wedeking was the first law enforcement officer to interview the victim, Linda Bernal. Lynda Bernal went to the Slaton police station on an evening in September, 2011, and reported the offense at bar. (R.R. vol. 5, p. 19). Officer Wedeking took a statement form Bernal that night, reporting sexual assault of a child. (R.R. vol. 5, p. 24). Wedeking referred Bernal to Lieutenant Trevor Barnes. Id. Barnes contacted the Lubbock Rape Crisis Center. (R.R. vol. 5, p. 25). Wedeking’s

*47

testimony established venue in Lubbock County. (R.R. vol. 5, p. 31). Wedeking testified that she was age 16 on the date of the offense in November, 2010. (R.R. vol. 5, p. 21; 27). By the end of the interview, Appellant, Eddie James Jones, was a suspect. (R.R. vol. 5, p. 21).

DEEDRA PAGE

(R.R. vol. 5, pp. 33-55)

Deedra Page was the Lubbock Rape Crisis Center employee who met with Lynda Bernal the evening of September 29, 2011, to receive Bernal's report of the offense at bar. (R.R. vol. 5, p. 35). Page confirmed the victims's date of birth as "8-8-'94." Id. Page testified that Bernal "was just overall an emotional wreck." (R.R. vol. 5, p. 38). Page was "provided the information of the potential assailant in the case," . . . "Eddie James Jones." Id. Bernal told Page that the sexual assault occurred "sometime in November 2010." (R.R. vol. 5, p. 39). The assault occurred in Slaton, Texas, which established venue in Lubbock County, Texas. (R.R. vol. 5, p. 40). Page testified that the victim reported the elements of the offense, including penetration. (R.R. vol. 5, pp. 41-43). Bernal told Page that she "had given birth to a baby boy on August ${15}^{\text{th}}$ of 2011, and she stated it was the assailant's baby . . ." (R.R. vol. 5, p. 44).

*48 MARSHA JONES (R.R. vol. 5, pp. 55-81).

Marsha Jones is the mother of Lynda Bernal's friend, Destiny. Jones knew Lynda well. Apparently, Marsha Jones is the first person to whom Lynda reported the rape. On September 29, 2011, sometime after birth of her baby boy, Lynda reported the rape to Jones. (R.R. vol. 5, p. 58). Lynda was distraught and contemplating suicide. (R.R. vol. 5, p. 62). Lynda told Marsha that Appellant was her assailant. (R.R. vol. 5, p. 63). Marsha and her daughter accompanied Lynda to the Slaton Police Department and to the Lubbock police station. (R.R. vol. 5, p. 68; 72). Marsha Jones gave a statement to police concerning Lynda's report of the offense. (R.R. vol. 5, p. 73). Jones identified Appellant in the courtroom. (R.R. vol. 5, p. 63).

AMANDA GATICIA (R.R. vol. 5, p. 82-128)

Amanda Gaticia is the mother of Lyndal Bernal, the victim. Amanda affirmed that Lynda's birthday is "August 8, 1994." (R.R. vol. 5, p. 83). Lynda's baby boy Matthew was born August 15, 2011. Id. Amanda was the shepherding witness for the baby's birth certificate, State's exhibit #2. (R.R. vol. 5, p. 87). In December of 2010 Amanda noticed that Lynda was "sick a lot," "throwing up a lot," and her "periods had stopped." (R.R. vol. 5, p. 89). In February of 2011 it was determined that Lynda was 14 weeks pregnant. (R.R. vol. 5, p. 91).

*49 Amanda said that Eddie Jones was a family friend. (R.R. vol. 5, p. 93). Amanda identified Appellant in the courtroom. (R.R. vol. 5, p. 96). On September 29, 2011, Amanda learned that Appellant had raped Lynda. (R.R. vol. 5, p. 97). After Lynda's report of this offense to the police, Appellant tried to contact Lynda and Amanda repeatedly, by letters. (R.R. vol. 5, p. 101-102). Among the letters to Lynda from Appellant was State's exhibit #3. (R.R. vol. 5, p. 103). It was incriminating. (R.R. vol. 5, p. 107-108). Amanda delivered at least three (3) of Appellants letters to the Slaton police department. (R.R. vol. 5, p. 106). In one of the letters, Appellant referred to Lynda's baby as his son. (R.R. vol. 5, p. 107-108). In that letter, Appellant wrote "[A]lso, Lynda, am sorry that this all happened like this." (R.R. vol. 5, p. 109). In that letter, Appellant asked Lynda to change to baby's name to Jones. Id.

Appellant's nephew Michael Jones approached Amanda shortly before trial and attempted to discuss the matter with her. (R.R. vol. 5, p. 110). The record recites further incriminating contents of the letter (R.R. vol. 5, p. 111-112). In the letter, Appellant asked Lynda to have her "grandpa and your mother go to Lubbock County Courthouse and speak to the District Attorney, Jennifer Bassett (State's prosecuting attorney in this case), and tell them . . . you would like to drop these charges on me." (R.R. vol. 5, p. 112). Another letter, State's exhibit 4 (R.R. vol. 5, p. 115), included a handwritten affidavit. Id. By the letter State's exhibit #4A, the Defendant

*50

specifically states "he wants . . [Lynda Bernal, the victim] to fill out this affidavit that he has sent to you, and take it to the police so the case can be dismissed and you can get paid child support." (R.R. vol. 5, p. 117). In summary, Appellant's letters, admitted in evidence, were incriminating.

LYNDA SUE BERNAL

(R.R. vol. 5, p. 129-190)

Lynda Bernal is the victim of this offense. Lynda was born August 8, 1994. (R.R. vol. 5, p. 129). She was sixteen (16) years old on the date of the offense in November 2010. Id. Lynda testified to every element of the offense alleged in the indictment, including forcible vaginal penetration (R.R. vol. 5, p. 145), venue (R.R. vol. 5, p. 163) and a date within the limitations period. Lynda identified Appellant, Eddie James Jones, as her assailant. (R.R. vol. 5, p. 158). She described the details of the offense. (R.R. vol. 5, pp. 140-147). Her pregnancy with the child conceived by this offense was diagnosed on February 14, 2011. (R.R. vol. 5, p. 150). On September 9, 2011, Lynda made the outcry reporting the rape and identifying Appellant. (R.R. vol. 5, p. 153). The remainder of her testimony discussed collateral details of the offense that are not dispositive of this appeal. The testimony of Lynda Bernal is sufficient to support the conviction.

*51

DAVID WOOD

(R.R. vol. 5, pp. 190-212).

David Wood is a police detective employed by the Slaton Police Department. He was assigned to conduct an investigation of this case. Det. Wood met with the victim, Lynda Bernal and her infant child on October 4, 2011, at the Slaton Police Department. (R.R. vol. 5, p. 193). Wood collected bucal swabs from the victim, Lynda Bernal, from Appellant, Eddie Jones, and from Bernal's infant son. (R.R. vol. 5, p. 193). Wood accompanied Bernal to the scene of the offense, and composed a diagram of the area. This evidence of location was of no consequence, and counsel provides no record citation, as other witnesses established venue. Wood was the shepherding witness who established the predicate for admissibility of State's exhibits numbers $\underset{―}{28},\underset{―}{29}$ and $\underset{―}{30}$ , the bucal swabs which Wood collected from Lynda Bernal, Appellant and the child, for the purpose of conducting DNA analysis and paternity testing. (R.R. vol. 5, p. 203).

*52

CHRISTINA CAPT

(R.R. vol. 5, pp. 212-142)

Christina Capt is a forensic DNA analyst employed by the University of North Texas Health Sciences Center at the Center for Human Identification. (R.R. vol. 5, p. 213). She testified as an expert witness concerning paternity in this case. Capt identified State's exhibits numbered 28, 29 and 30, bucal swabs of DNA samples collected by Officer Wood from Appellant (SX#28), the victim (SX#29) and the child (SX#30). (R.R. vol. 5, pp. 217-218). Her testimony completed the evidentiary predicate for admission of those exhibits. Id. Capt presented her report, State's exhibit number 32, which was admitted without objection. (R.R. vol. 5, p. 225). The witness described the procedures that she followed in conducting DNA analysis of the samples SX 28, 29 and SX30. Based upon her analysis of the DNA samples from the bucal swabs, Capt testified that "99.999995 of the population would be excluded" from paternity of the child, but that Appellant can not be excluded as the father of the child. (R.R. vol. 5, p. 232). According to Capt, "it's 15 million times more likely that Eddie James Jones is the true biological father than if a father is an untested random man from the population." Her testimony leads to the inference that Appellant is the father of the child. In effect, DNA testing identified Appellant as the father of the child conceived by the sexual assault of Lynda Bernal. Id.

*53 TRIAL CONCERNING PUNISHMENT (R.R. vol. 6).

Appellant pled "True" to the enhancement allegations of the indictment. (R.R. vol. 6, p. 8). The State introduced certified copies of the judgments in the cases alleged for enhancement. (R.R. vol. 6, p. 8-9). The State's fingerprint expert identified Appellant as the person whose fingerprints appear on those judgments. (R.R. vol. 6, p. 14-16). The trial court Judge sentenced Appellant to imprisonment in the custody of the Texas Department of Criminal Justice Institutional Division for life. (R.R. vol. 6, p. 18)(C.R. p. 69).

SUMMARY OF ARGUMENT

This is an Anders brief. See Anders v. California, 386 U.S. 738 (1967). After due diligence, and review of the appellate record and researching the potential grounds for appeal, Appellate Counsel is unable to find any error which he, in good faith, can urge warranting a reversal of this conviction or in support of any other form of relief for the Appellant. In Appellate Counsel's opinion, the record reflects no reversible error or grounds upon which an arguably meritorious appeal can be predicated. Appellate Counsel concludes that the appeal is without merit.

*54

ARGUMENT AND AUTHORITIES

I. PRETRIAL PROCEEDINGS (Reporters Record, vol. 2, 3).

Appellate Counsel is unable to identify any error in the pretrial hearing in this case conducted on February 24, 2012. Trial counsel presented no objections during the pretrial hearing on February 24, 2012. Further, Appellate Counsel is unable to identify any error in the pretrial hearing in this case conducted on April ${13}^{\text{th}},2012$ . Significantly, at the April 13, 2012, pretrial hearing, counsel for the Defendant moved to retest DNA materials to determine paternity. (R.R. vol. 2, p. 8 )(C.R. p. 39). Subsequently, on April 16, 2012, Defense counsel formally filed his MOTION TO RETEST DNA OF PATERNITY. (C.R. p. 39). The Trial court did not rule on that request in the April ${13}^{\text{th}}$ hearing. At the pretrial hearing conducted on June 24, 2013, defense counsel reurged the MOTION TO RETEST DNA OF PATERNITY. (R.R. vol. 4, p. 11). The Judge overruled the motion. Id. Defense counsel did not object to the court's ruling. Trial counsel presented no other objections during any of the pretrial hearings. (Reporter's Record, vols. $2\&3$ ). Failure to object waives any appellate complaint. Tex. R. App. Proc., Rule 33.1. Nevertheless, counsel presents the following potential ground for appeal.

*55

THE TRIAL COURT ABUSED ITS DISCRETION AND ERRED IN DENYING APPELLANT'S MOTION FOR DNA PATERNITY TESTING. (C.R. p. 39) (R.R. vol. 4, p. 11).

Appellant orally moved for retesting of DNA and also filed a MOTION TO RETEST DNA OF PATERNITY. (C.R. p. 39). The Trial court denied the Motion. (R.R. vol. 4, p. 11). In so ruling, the trial court abused its discretion and erred.

The State offered evidence concerning DNA paternity analysis of bucal swabs collected from the victim, the child and the Appellant. The State's witness Capt (R.R. vol. 5, p. 212) testified to her analysis of the DNA samples submitted to her. Her DNA analysis and testimony indicated that Appellant is the father of Lyndal Bernal's child, inferentially, conceived by the offense at bar. This was powerful evidence which corroborated Bernal's testimony identifying Appellant as her assailant. Contradictory paternity testimony based upon a retest of the DNA materials would have been significant rebuttal of the State's evidence of paternity.

Texas Code of Criminal Procedure, article 39.14(a), as effective at time of trial, governs discovery in this case. ^[1] There is no general right to discovery under the (a) Upon motion of the defendant showing good cause therefor and upon notice to the other parties, the court in which an action is pending shall order the State before or during trial of a criminal action therein pending or on trial to produce and permit the inspection and copying or photographing by or on behalf of the defendant of any designated documents, papers, written statement of the

*56 United States Constitution. Weatherford v. Bursey, 429 U.S. 545, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977). Nevertheless, Tex. Code CRIM. Proc., art. 39.14 expressly authorizes discovery of "tangible things not privileged," which should include DNA analysis of bodily fluids such as bucal swabs. By authority of the statute, Appellant should have been permitted to retest the DNA of the parties.

Discovery of evidence favorable to the defense.,and denial of discovery, implicate the Appellant's right to present a defense. A defendant has a fundamental right to present evidence of a defense as long as the evidence is relevant and is not excluded by an established evidentiary rules. Miller v. State, 36 S.W.3d 503 at 507 (Tex. Crim. App. 2001), citing Chambers v. Mississippi, 410 U.S. at 302, 93 S.Ct. at 1038. Evidence is relevant if it is material and probative. Miller v. State, supra, at 507. Evidence is material if it addresses "any fact that is of consequence to the defendant, (except written statements of witnesses and except the work product of counsel in the case and their investigators and their notes or report), books, accounts, letters, photographs, objects or tangible things not privileged, which constitute or contain evidence material to any matter involved in the action and which are in the possession, custody or control of the State or any of its agencies. The order shall specify the time, place and manner of making the inspection and taking the copies and photographs of any of the aforementioned documents or tangible evidence; provided, however, that the rights herein granted shall not extend to written communications between the State or any of its agents or representatives or employees. Nothing in this Act shall authorize the removal of such evidence from the possession of the State, and any inspection shall be in the presence of a representative of the State. Tex. Code CRIM. Proc., art. 39.14(a) (emphasis added).

*57 determination of the action." Id., at 507. Evidence is probative if it tends to make the existence of the fact "more or less probable than it would be without the evidence." Id. A trial court's exclusion of evidence for the defense will violate due process if the trial court's ruling erroneously excludes evidence that "forms such a vital portion of the case that exclusion effectively precludes the defendant from presenting a defense." Miller v. State, supra at 507, citing Potier v. State, 68 S.W.3d 657 at 663 (Tex. Crim. App. 2002).

The standard of review for this point of error is abuse of discretion. Quinones v. State, 592 S.W.2d 933 (Tex. Crim. App. 1980); cf. Weatherred v. State, 15 S.W.3d 540 (Tex. Crim.App. 2000). Article 39.14, Tex. Code Crim. Proc., "makes it clear that the decision on what is discoverable is committed to the discretion of the trial court." Id., at 940. "The issue, then is whether the trial court abused its discretion in refusing to allow discovery . . . ." Id. The legal standard employed in determining whether the trial court abused its discretion in denying discovery is materiality. Id., at 941 .

A request for discovery must be timely; otherwise the trial court does not abuse its discretion in denying such a motion. Scott v. State, 825 S.W.2d 521 (Tex.Ct.App.-Dallas, 1992). Significantly, at the April 13, 2012, pretrial hearing, counsel for the Defendant moved to retest DNA materials to determine paternity. (R.R.

*58

vol. 2, p. 8 )(C.R. p. 39). Subsequently, on April 16, 2012, Defense counsel formally filed his MOTION TO RE-TEST DNA OF PATERNITY. (C.R. p. 39). The Trial court did not rule on that request in the April ${13}^{\text{th}}$ hearing. At the pretrial hearing conducted on June 24, 2013, the day of trial, defense counsel reurged the MOTION TO RETEST DNA OF PATERNITY. (R.R. vol. 4, p. 11). The Judge overruled the motion on the day of trial. Id. There is no record indication why retesting of the DNA was not accomplished between April 13 and June 24. The record is silent. A retested DNA result favorable to Appellant would have been material, relevant and probative. However, Appellate counsel cannot conscientiously assert that the trial Judge abused his discretion in overruling the request on the day of trial. The request was simply not timely. See Scott v. State, supra.

II. THE INDICTMENT (Clerk's Record p. 6).

After diligent review, Appellate Counsel is unable to find any error in the indictment. Trial counsel for Appellant did not object to the form or substance of the indictment. Failure to object waives any appellate complaint concerning the indictment. TEX. CODE CRIM. PROC., art 1.14(b); Studer v. State, 799 S.W.2d 263 (Tex.Crim.App. 1990); TEX.R.App.Proc., RULE 33.1. Appellate counsel diligently independently examined the indictment and identified no reversible error in the indictment. Significantly, the indictment contains an enhancement Paragraph which

*59

alleges that Appellant was previously convicted of the felony offense of Sexual Assault. Appellant pled true to the enhancement allegation contained in the second paragraph of the indictment. (R.R. vol. 6, p. 8).

III. VOIRE DIRE (R.R. vol. 4).

After diligent review, Appellate Counsel is unable to find any error in the voire dire. Trial counsel for Appellant did not object to the jury which was impaneled. The record contains no defense objections to any member of the venire. The record does not include a record of peremptory challenges exercised by defense counsel. The record of the voire dire proceedings does not indicate that any defense challenge for cause was denied. The record of the voire dire proceedings does not indicate that any member of panel was excused over defense objection. Defense counsel presented no objection to the voire dire proceedings. Nothing is present for review concerning voire dire in this case. TEX.R.App.Proc., Rule 33.1. IV. OPENING STATEMENTS (R.R. vol. 5, pp. 13-18).

After diligent review, Appellate Counsel is unable to find any error in the opening statements of counsel. Defense counsel presented no objection to the State's opening statement. The trial court imposed no limitation on Defense counsel's opening statement. Defense counsel did not perfect any bill of exception concerning opening statements. Failure to object waives any appellate complaint concerning opening

*60 statements. TEX.R.APP.Proc., RULE 33.1. After independent examination, appellate counsel perceives no reversible error in the opening statements.

THE TRIAL ON GUILT OR INNOCENCE (R.R. volume 5). After diligent review, Appellate Counsel is unable to find any error in the trial on guilt or innocence. Trial counsel presented no objections the testimony which would present reversible error. Failure to object waives any appellate complaint. TEX. R. APP. Proc., RULE 33.1. VI. THE COURT'S CHARGE (Clerk's Record, pp. 22-31).

There is no record evidence that Defense counsel presented any objection to the Court's Charge. Rather, trial counsel expressly waived any objection to the Court's Charge on guilt or innocence. (R.R. vol. 5, p.245). Appellate counsel is unable to identify any egregious, reversible error in the Court's Charge. See Almanza v. State, 686S.W.2d 157 (Tex.Crim.App.1984). VII. SUMMATION (Final Arguments of Counsel) (R.R. vol. 5, pp. 246-256).

After diligent review, Appellate Counsel is unable to find any error in final argument. Trial counsel presented no objection to the State's final arguments. Accordingly, nothing is presented for review concerning summation. TEX.R.APP.Proc., RULE 33.1. Nevertheless, appellate counsel has independently

*61

reviewed and studied summation and finds no reversible error. The State's argument was confined to permissible topics for summation.

VIII. THE PUNISHMENT HEARING (R.R. vol. 6, pp. 5-14).

After diligent review of the appellate record evidence concerning punishment, Appellate Counsel is unable to find any error which he, in good faith, can urge warranting any form of relief for the Appellant. At the punishment hearing, copies of prior judgments of conviction against Appellant were admitted without objection. Defense counsel presented only one inconsequential objection during the punishment hearing. Failure to object waives any appellate complaint. TEX.R.App.Proc., Rule 33.1.

*62

CONCLUSION AND PRAYER

After due diligence, Appellate Counsel concludes that the appeal is without merit.

WHEREFORE, PREMISES CONSIDERED, MIKE BROWN, counsel for Appellant, EDDIE JONES, prays leave to withdraw as counsel on appeal.

Respectfully submitted, MIKE BROWN 1601 Broadway Lubbock, Texas 79401 (806) 763-9493 fax (806) 744-5411 lwrbrown@nts-online.net Attorney for the Appellant, EDDIE JONES /s/ Mike Brown Mike Brown State Bar of Texas No. 03164750

*63

CERTIFICATE OF SERVICE

This is to certify that a true and accurate copy of the above and foregoing BRIEF FOR APPELLANT has been mailed to the Honorable JEFFREY FORD, Assistant Criminal District Attorney of Lubbock County, Texas, P.O. Box 10536, Lubbock, Texas, 79408, attorney for the State of Texas, on this, the $$ day of February, 2014.

S/ Mike Brown
Mike Brown

CERTIFICATE OF SERVICE ON APPELLANT

This is to certify that a true and accurate copy of the above and foregoing ANDERS BRIEF FOR APPELLANT has been mailed to the Appellant, EDDIE JONES, TDCJ-ID no. TDCJ #1873637, TDCJ-ID Stiles Unit, 3060 FM 3514, Beaumont, TX 77705, on this date, the $$ day of February, 2014.

S/ Mike Brown
Mike Brown

CERTIFICATE OF COMPLIANCE

Pursuant to TEXAS RULES OF APPELLATE PROCEDURE, RULE 9.4(i)(3), the undersigned certifies the brief complies with the type-volume limitations of Rule 9.4(i)(2)(B); 1) The brief contains 4426 words; 2) The brief has been prepared in proportionally spaced typeface using WordPerfect 9.0 in Times New Roman typeface and 14 point font size and 12 point font size for footnotes.

S/ Mike Brown
Mike Brown