Case Information
*1
GARRY LEE MOUNT, APPELLANT
VS.
THE STRTE OF TEXAS, APPE LLEE
On Appeal from the 248th Criminal District Court of Harris County, Texas, Cause Nos. 149195, 1449196. Honorable Katherine Cabaniss, Judge Presiding.
A PRO SE BRIEF FOR APPELLANT
Dorm: II-12-Bottom
GARRY LEE MOUNT PRO SE TDCJ# 1969963
McCONNELL UNIT 3001 S. EMILY DRIUE BEEUILLE, TEXAS
*2
I BENTIYY OF PARTIES AND COUNSEL
*3
IDENTITY OF PARTIES AND COUNSEL
Pursuant to Tex.R.App. P. 38-I (a) the following are parties or counsel to the judgement appealed From:
Presiding Judge:
The Honorable Katherine Cabaniss 248th Criminal District Court 1201 Franklin Houston, Texas 77002 Appellant PRO SE: Gary Mount TDCJ# 1869963 McConnell Unit 3001 S. EmilyDrive Beeville, Texas 78102 Attorney's For State: Mr. John Wakefield (M Trial) Harris County District Attorney's Office 1201 Franklin Houston, Texas 77002 Mr. Alan Curry (on Appeal) Harris County District Attorney's Office 1201 Franklin Houston, Texas 77002
*4 IDENTITY OF PARTIES AND COUNSEL
Attorney's For Appellant: Mr. Theodore Haynes (At Trial) P.O. Box 300833 Houston, Texas 111230
Ms. Deborah Summers (On Appeal) 11210 Steeplecrest, Suite: 120 Houston, Texas 11065
PRO SE: Gary Mount TDCJ # 1969963 McConnell Unit 3001 S. Emily Drive Beeville, Texas 18102
*5
ThBLe OF CONTENTS
pases:
*6
TABLE OF CONTENTS
IDENTITY OF PARTIES: TABLE OF CONTENTS : INDEX OF AUTHORITIES: I-10 STATEMENT OF THE CASE: STATEMENT REGARDING REFERENCES TOTHE RECORD: ISSUE PRESENTED: I
THIS PRO SE APPEAL BRIEF PRESENTS THESE ISSUES FOR REVIEW WITH MERIT.
ISSUE:(2) SEE: Pages 1 thru 4 State failed to correct Perjured Testimony which tainted-Influenced, the minds of the jurors, and did contribitate to the defendants conviction and sentence and prejuedice the defendant from getting a fain and impartial trial.
*7
TABLE OF CONTENTS
STATEMENT OF FACTS: 1-10
STATEMENT OF FACTS IN SURPQCT OF CASES CITED:
1-4 SUMMARY OF THE ARGUMENT: 1-4 ARGUMENT: 1-10 SUMMARY OF THE CASES: 1-4 EUDENCE: 1-11 PRAYER: (1) CERTIFICATE OF SERVICES: (1)
*8
Index of Buthorities
*9
INDEX OF AUTHORITIES
Cases:
Adams, 768 S.W. 2d 281,293 [Tex. Crim. App. 1989] Alcorta V. State of Texas, 355 U.S. 28.78 S.CT.145, 2L.Ed.2d 7; United States ex rol.
Avery v. State of Georgia, 345 U.S. 559,561.73 S.CT. 891,892.97 L.Ed. 1344:
Ashcraft V. State of Tennessee, 322 U.S. 143,149, 44 S.CT. 921, 923,88 L.Ed. 1192;
Brady V. Maryland, 373 U.S. 83, 83. S.CT. 1194 (1963) Bailey V. State of South Carolina, 289 U.S. 412, 420.53 S.CT. 667,670.77 L.Ed. 1292.
Based on Brady V. Martcand, 373 U.S. 15092 S.CT. 763,311.ed.2D. 104 (1973)
Chabot, 300 S.W. 3d 768 [Tex. Crim. App. 2009] Carmona, 185 S.W. 3d 492 [Tex. Crim. App. 2006] Cooper V. Aaron, 358 U.S. 1, 78 S.CT. 1401, 3 L.Ed. 2d 5
(dissenting opinion): Cassell V. State of Texas,
*10 State Cases
1,339 U.S. 282,283.00 S.CT. 629,94 L.Ed. 839;
Creswill V. Grand Lodge knights of Pythias, 225 U.S. 246,261,32 S.CT. 822.56 L.Ed. 1074.
Davis U. Wechsler, 263 U.S. 22,24.44 S.CT. 13,14. 68 L.Ed. 142;
Bethiocres
Feiner V. People of State of New York, 340 U.S. 315, 322,323. not. 4. 91 S.CT. 303, 307, 95 L.Ed. 267
Fierro, 934 S.W. 2d 300, 303. (Tex. Crim. App. 1974)
Giglio V. U.S., 405 U.S. 150, 31 L.Ed 2nd 104, 92 S.CT. 763
GHAHREMANI, 332 S.W. 3d 400 (Tex. Crim. App. 2011) LEXIS 330
Haley V. State of Ohio, 332 U.S. 576, 579.68 S.CT. 302.303.92 L.Ed. 224;
Kem-Limerick, Inc. V. Scurlock, 349 U.S. 110, 124, 74 S.CT. 403, 410, 98 L.Ed. 546.
Keeter V. State, 195 S.W. 3d 756. (Tex. Crim. App. 2005)
*11
INDEX OF AUTHORITIES
State
Leyra V. Denno, 341 U.S. 554,558, 74 S.CT.716,717.78 L. Ed 948 :
Mooney V. Holohan, 294 U.S. 103, 55 S.CT. 340, 79 L. Ed 791
Mesarosh V. United States, 352 U.S. 1, 77 S.CT. 1, 1L. Ed. 2 d 1 .
Martin V. Hunters Lessee, 1 wheat. 304, 4 L. Ed. 77 ; Malinski v. People of State of New York, 324 U.S. 401, 404, 85 S.CT. 781.783, 89 L.Ed. 1029.
Niemotko v. State of Maryland, 340 U.S. 248, 271, 71 S.CT. 325, 329, 95 L.Ed. 269 :
Napue V. People of the State of Illinois, 360 U.S. 264, 79 S.CT. 1193 3L.Ed. 2 d 1219.
Pyle V. State of Kansas, 311 U.S. 213,43 S.CT. 199, 89 L.Ed. 214 .
People V. Savvides, 1 N.Y. 2 d 554,557,154 N.Y. S. 2 d 285, 889. 134 N.E. 2 d 253, 854-855.
Payne V. State of Arkansas, 354 U.S. 560,562, 78 S.C 844, 849, 2 L.Ed. 2 d 975 ;
*12
INDEX OF AUTHORITIES
State
Ross U. State, 233 S.W. 2d 124, 156 Dex. crim. App. 1950] Certiorari granted 71 S.CT 529, 340 U.S. 944, 95 L.Ed. 482, reversed 711 S.CT. 942,341 U.S. 918,95 L.Ed. 1252 .
Roth v. United States, 354 U.S. 474,497 . 771 . S.CT, 1304, 13151 L.Ed 1498
Smith V. State of Texas, 311 U.S. 128.130, 61 S.CT. 144 , 145. L. Ed. 84 .
Stroble V. State of California, 343 U.S. 181, 190, 72 S. CT. 599, 603, 94 L.Ed. 872 . (dissenting opinion).
Sterling V. Constantin, 289 U.S. 378.398,53 S.CT.14, 195, 771 L.Ed. 375 ;
Southern Pacific Co. V. Schuyler, 229 U.S. 401, 411. 33 S.CT. 277 . 280,57 L.Ed 442 ;
Thomas V. State, 841 S.W. 2d 399,404 (1992) United States V. Bagley, 493 U.S. 447, 481-62, 105 S.CT. 337587 L.Ed. 2d 481 (1995)
Web V. State, 278 S.W. 2d 158,141 ETex. crim. App. 1955 J
*13 State Cases Whitman V. Wilson, 318 U.S. 688,63 S.CT. 890,87 L.Ed 1083 and:
White V. Ragen, 324 U.S. 760,65 S.CT. 778,89 L.Ed. 1348.
Ward V. State, of Texas, 316 U.S. 547,550.62 S.CT. 1139,1141, 86 L.Ed. 1165.
2L Ed 1575, 3L Ed 2d 1991 13 111.2d 566,571,150 W.E 2d 613,616. 83 S.CT. 1174 (1963) 175 S.CT. 1173, 3L.Ed. 2d 1217
*14
INDEX OF BUTHORITIES
\CONSTITUTIONS/
U.S. CONST. amend. (14)
*15
INDEX OF AUTHORITIES
\STATUTES/
Tex. Penal Code Ann. (Vernon Supp. 2014)
Tex. Penal Code Ann (Vernon Supp. 2014) Tex. Penal Code Ann. (Vernon Supp. 2014) Tex. Penal Code Ann. (Vernon Supp. 2014) Tex. C.C.P. Ant 44.29 (Vernon's Ann. 2000)
*16
INDEX OF AUTHORITIES
RULES
Tex.R. App. P.38.1(a)
*17
Federal Cases
Almeida V. Baldi, Cir., 195 F. 2 d 815,33 A.L.R. 2d 1407; United States ex rel.
Curran V. State of Delaware, 3 Cir; 259 F. 2 d 10 n.
De Marco V. U.S., 928 F. 2 D. 1074 (II th Cir. 1991) Gonzalez-Soberal V. United States, 244 F.3d 293 (1st Cir. 2001)
Guzman V. Secretary, Dept of Corrections, 443 F.3D1334 (II th Cir. 2011)
Grithin V. Pierce, 482 F.3D. 831. (n th Cir. 2010) Jones V. Commonwealth of Kentucky, 4 th. Cir., 97 F. 2 d 355,338 , with in re Sawyers Petition. (nth Cir., 229 F. 2 d 305,309 .
Montgomery V. Rasen, D.C., 84 F. Supp. 382 See generally annotation. 2 L. Ed. 2 d 1595.
Moore V. Marc, 254 F.3D. 1235, 1241. (1oth Cir. 2001)
*18
(1)
INDEX OF AUTHORITIES
Federal Cases
Steinkuehler V. Megehner, 196 F. 3 d. 441,445 (8th Cir. 1999)
Thompson V. Dye, 3 Cir., 221 F. 2 d 763 ; United States ex fol.
United States V. Tucker, 916 F. 2 D. . (9th Cir. 1983)
United States V. Webster, 392 F. 3 d 787, 801. (5th Cir. 2004)
Van Liew V. U.S., 321 F. 2 d 674 (Tex.) 1963)
*19
STATEMENT OFTHE CAGE
page:
(1)
*20 The Appellant was charged by indictments with the offense of Aggravated Sexual Assault and Aggravated Kiddnapping in cause numbers 1449195 and 1449196 (CR 1 at 15; CR 2 at 13). Tex. Penal Code Ann. (Vernon Supp. 2014) The cases arose out of the same transaction and were tried together (CR 1 at 99; CR 2 at 105). Tex. Penal Code Ann. (Vernon Supp. 2014). A few weeks before the trial, new counsel for the Appellant substituted in on both cases (CR 1 at 518; CR2 at 493).
The Appellant plead notguilty and ajury was selected on December 1, 2014 (RR2 at 142). The Appellant was convicted on December 4,2014 (RRS at 85).
The Appellant was enhanced with two prior felony convictions and faced a minimum of 25 years on each case (CR 1 at 15; CR 2 at 13). Tex. Penal Code Ann. (Vernon Supp. 2014). After hearing punishment evidence, the juv sentenced the Appellant to 95 years confinement. in the Texas Department of Criminal Justice on each Case (RR 1 at 22; CR 1 at 620; CR 2 at 584). Appellant filed a timely, written Notice of Appeal on December 5, 2014 (CR 1 at 638; CR 2 at575)
*21
STBTEMEWIT REGARDING REFERENCES TO
THE RECORD
Page:
(1)
*22 The Clerks record in 1449195 will be cited as "CR(1). The Clerks record in 1449196 will be cited as "CR(2). The reporters record for the trial consists of eight volumes and will be cited as "RRL), RR(3) etc ..." Exhibits will be cited as "State's Exhibits 1,2 etc ...
*23
ISSUE
State failed to correct perjured Testimony which tainted-Influenced, the minds of the jurors, and did contri. butate to the defendants conviction and punishment and prejudice the defendant so from getting afain and impartial trial.
*24
RROUS
STATEMENT OF FACTS
*25 Dec 1, 2014 Deputy Anthony Glenn testified that there is no street lights out there now. I don't no what wrong with his eyes, for one there is a street light in Gary Castey's front yard - he also state that there is a bumpontho little 9 year old girls head. Which you heard what the Lead investigator James Dousay said there was no goose egg on the girls head besides that its hearsay because the 9 year old girl was not in court on the day of trial which deputy Glenn, Gary Casteys, Amanda Smith, District Attorney, used Kaley Smith's Test. mony and what she said all threw trial which is a violation of my 6th Amendment. The sixth Amendment right to present a complete defense encompasses a petitioner's rights under the confrontation clause to rebut the states evidence through Crossexamination, which she was not at trial or even in the state of Texas during trial, which she did not see nothen that night. Because she was asleep in the living room and Ire'd about the issue's she saw, so the District Attorney Know'd this was Inflamatory evidence when he presented it threw out trial to EnFlame and tainted the jurys mind which denied me Fair and imparcial trial. All threw trial was nothing but perjury testimonial giving by the Victim, witnesses
*26 and by state expert witnesses, I ask the high Courts to so threw the evidence that I have took out the trial transcript and you will see where I wrote perjury then below I wrote roburte. I've wrote down the Reports Record where its found at and the state's Exhibits where the perjury is found in it. I could explain it to you in these the STATEMENT of Facts but this Law Library Limits you to 100 sheets of a Brief I pray to the Court of Appeals to except this brief I'm over the pegelimit which I did file a Ex. tention of time motion and Ex. tention of Paper and pages. I want to explain all the t. y.ell The District Attorney knows all this was perjury testimony when it was giving Now I ask yall and pray to the Courts to look over the evidence pages 11-61 and you will see what I'm saying Deputy Glenn Just lied like cazzy concerning me when he said I jumped out the drivers door. You heard the victim he went out the passanger door my drivers door does not open from the inside or the outside its jammed. So even Christy Sngikal the Forensic Expert for the state committed aggravated perjury on the witness stand
*27 under sworn oath. She stated my sperm was in Amanda Smiths and the District Attorney also said the same thing, but look at what State expert: Brittney Gonzalez stated that the perianal Swab was negative for sperm. So this is just some of the perjury testimony that was giving and they knowled it was perjury when it was giving which violates my Federal Constitution of the U.S. (14) Amendment. I want to mention a issue Deputy Richard Jenkins told yall. He said after the Aggravated Kidnappling and the Aggravated Sexual Assault happened when they had Amanda Smith in the Ambulance on 1059 pinestreet they said she was not allowed to go back, in the house that morning of 1-19-13. But the D.A. ask her where her black pajamas wants was she said I don't no. But Deputy Jenkins asked her and she said they are in Gary Caskey's bedroom at the foot of his bed where I took them off. Now she stated she had never had sex with no are Gary Caskey. Now when I supposed to of good her out the house Gary Caskey said she didn't have no pants on because she was having sex with Gary Caskey in his room when I caught them. She
*28
STATEMENT OF FACTS.
Icold to yall under oath about this and committed Asgrausted perjury. Now thom pajama pants was not in the suburban whenf was supposed to ot task her in the woods and under a bridge and rope her and beast her up. Now my seman and another male seman was found in thom pajamas. Now if she haven't had sex with me before how is my seman in them pajama pants that was collected by Deputy Tenkins after the crime had be committed do us to fthe house when Amanda was in the Ambulance Gary Caskey, and Amanda smith both said all she had on when she left the house that morning was a T-shirt the gray sweat-pants was also got out the house that morning after the crime had happened for Amanda to put on and wear which came out in bedroom in the house which is my sweat pants so my DNA is in them any way just like the Orange and Blat t blanted came of my bed. I ast all yall so look at all this evidence on pages 1-41 and decide. Because the testimony and the lies and perjury is intense. They said I got up on the witness stand during the punishment stage and adimitted
*29 to during these crimes, now I fought these charges for (D) years in the country jail I didn't testify during the guilt and innocence stage. Because of my prior convictions, now, why would I get up there during the punishment stage and admit to these acts and Ke that I'm fixing to file a appeal on it. Plus the jury had done found me guilty already. They altered the transcript to say what they want it to say. Because during trial I wrote down what each witness said when they test the Like Brand Smith said She said on her Audio Statement I will have that I took her to secluded wooded area on Cherry Lareal now during trial she said it was on Holly Lane and it says in the police report Cherry Lareal. I just wanted to point this out and she said and the Estate expert said I aheled her to sleep? times that night to the Blood verisels pop'd in her eyes Forensic Expert Christy Smejkal said if you chose somebody by the neck you would leave DVA. Now I tem 7-I and 8-I is neck Swabs my DVA was not on her neck no where but there was a male contributor to her neck. Now the DVA said I beat her on her groin.
*30 and on her side somewhere but the DVA test said I was excluded from this test, But there was a male DVA found on them but it wasn't mine. In. Breast swab, right, Breast swab I was excluded from these also but there was another male DVA present. There was another male DVA found in her vigilal also besides mine. But I had consentual sex with her Friday morning and Friday night 1-18-13 Before this happened early hours of Saturday morning 1-19-13 I was excluded from her dislocated Cast arm she had that she said I was hidden on to this arm for levetrage if my DVA was not on it but there was another DVA from a male on it. I was excluded from all the evidence except(Grey sweat pants to put the house after the crime had happened for Amanda to put on and wear they care out my bedroom). (Black and orange blanket cane off my bed in the house it was not in the vehicle)) (I Black Pajama pants, Came out the house by deputy Jenkins after the crime had happened he said they was not part of the crime because they was found in Gary Cas treys bedroom when Amanda was in the
*31
in the Ambulance but he put them in a bag in the trunk of his car they was not submitted for DNA testing until 1-20-13 3 days later. Now the Investigator James Dausay says he picks up a Gray Jacket and a Black and orange blanket (2) days later after the incident on 1-19-13 Because Amand Smith calls him later and says she has more evidence for him to pick up this was two days after 1-19-13 But these 20 (2) items was never submitted for DNA testing until Jan 21, 2003 www! I think there is a little trampering with evidence here if you don't mind no saying that. I ask that yall go over this with a good look over because you will see the lie's and perjury just like I do and just like my Lawyer pointed out in his closing argument and filed a instructed verdict that there was insufficient Evidence to Convict me on these (2) Causes
Tandemergent
I would also point out what my lawyer said during his closing argument about the perjury testimony and the facts that was not right this is what he had to say about is
*32 MR Haynes Trial Counsel
RRS at 62 I would request that there isn't sufficient enough evidence to convict Mr. Mount. This case should be dismissed. And that there been instructed verdict stating that this the two causes of actions against Mr. Mount be dismissed based upon lack of evidence.
There was an allegation with regard to her elbow and the split that she was wearing that Mr. Gary Mount dragged her by the splint or used the splint some kind of way to abduct her. But of all those DNA test that we got there, there was none of Gary Mount's DNA on that splint or any wrapping or bindings by him. Not one inkling. Not even when they used, Kary Mullis polymerase chain reaction which magnifies DNA to a greater level even when it's minuture. Still couldn't find any of his DNA on that wrapping with regard to her arm.
RRS at 8E) States Exhibit (81 page 2 of 8) on 1 tem 16B I Gary Mount could not be excluded as a contributor on this.
Done by Christy Smejkal forensic Expert for State. But now in RRS at 36 I couldn't included him either. And I couldn't do those statistics. So all I could say was there was insufficient information to include him. In RRS at 64 I wanted to point to your attention about a situation where an officer came before you and said that there was some sort of a white T-shirt, that
*33 Gary Mount was wearing. And he said that because of the fact that there was dew on the ground and because it had gone into night and early morning, when they got out there because of the remote location, because the fact there was dew on the ground, the shirt had no dew on the ground, because of the fact that the dog hit on the shirt, he felt that the shirt belonged to my client, Gary Mount. However, in the testimony of both Amanda Smith, the alleged victim, as well as Gary Caskey, neither one of them could recall if my client was even wearing a shirt during that night. Not one. Amanda Smith could not say that Gary Mount was ever wearing a shirt that night and didn't know what color shirt he was wearing if he was wearing a shirt, neither could Gary Caskey who was not in a situation where he felt threatened. Obviously he wasn't. He stood supposedly in the room between them. So obviously he didn't feel too threatened by Mr. Gary Mount. RR. and (65) I want to call your attention and its your duty, as I told you, to look at the testimony of the (officers) and all of the people invited in this case and determine their credibility. So I'm not saying they're not credible or credible. That's your job to determine whether they're credible or not credible.
*34 RRS at 45 Amanda Smith got on the witness stand and said that there is no way that she could ever enter into her vehicle from the driver's side because that driver's side door was jammed shut. And she testified that people were coming in and out of her car using the passenger side. But the (Police Officer) (Deputy
Glenn that testified said that he distinctly saw Mr. Gary Mount come out of the driver's side and run into the woods. That's what he testified to under oath, s WORn testimony.
I'm not saying he's a bad police officer. I'm not saying he's lying. I'm saying he forgot what happened that night. I'm saying that in his excitement of doing all those things and trying to perform his duties that he didn't quite get it right. And if he didn't get that point right, is there some other point that he didn't get right also, too? If these two people, Gary Caskey and RRS at 46 Amanda Smith, don't remember that there was a T-shirt that my client was wearing or whether or not he was wearing a T-shirt, did they leave out something else? Was there something else missing? Did they distort the facts in something else? RRS Bt 40) And here's the thing, he didn't see anything. He stood there on the stand and told you that when Mrs. Amanda.
*35 Smith came out of that room, he didn't observe any bruises on her. That's what he told you. No bruises on her whatsoever when she got out of that room. And he also told you he didn't see what happened in that room. He speculated because he heard a thump that somehow my client slung somebody down or did something or another, but he didn't see it. He did not see a thing. He told you that he didn't see anything. He stood on the stand and told you, he didn't see he didn't see any bruises on her. And he came back and told you that when he got back and looked at her while she was in the ambulance, he didn't see any bruises. He saw some swelling on her face, but he didn't see any bruises. RRS 24 (28) like the kind you saw. And the DNA expert came up here and told you about the polymerase chain reaction of Kary Mullis. And she also told you that they found another (male's DNA) on the (items). Another male. Yet, they only tested two people, a female, Amanda Smith, they used that as their standard to show a DNA profile. And they tested Gary Mount. That was the DNA profile for him. And they came back due to science and told you there was another male contributor. It was another man out there who that DNA belongs to, another man that the DNA belonged
*36 And she admitted on the stand that it's possible that Amanda Smith could have had sex with another man because there's another male's DNA RRS at (c?) out there RRS at (d.) And I think at the conclusion, when you sit down and you analy ze all of the evidence RRS at (1) that's been presented before you, you see that there are some inconsistencies. You see that there are some things out there that deserve some guestioning, And you see that some of these testimonies from some of these people were not truthful. Amanda said she didn't smoke kush. Gary Caskey said, yeah, I saw them smoking kush. And he told you it was synthetic marijuana.
And he told you that they had been drinking vodka, but not Amanda Smith. No, I didn't have any kush. What else is she lying about? What else is she lying about?
*37 STATEMENT OF FACTS and SURPORTS OF CASE LAW
Page 2 (1-6)
*38
STATEMENT OF FACTS IN SUPPORT C ASES CATED:
Adams, 968 S.W. 2d 281, 293 E Tex. Crim. App. 1989] Alcorta V. State of Texas, 355 U.S. 28.98 S.CT. 103, 2L.Ed. 2 d 9 , United States ex rel-
Avery V. State of Georgia, 345 U.S. 559,561.93 S.CT. 891,892.99 L.Ed. 1244;
Asheroff V. State of Tennessee, 332 U.S. 143,149, 64 S.CT. 921,923,88 L.Ed. 1192;
Brady V. Maryland, 393 U.S. 83, 83 S.CT. 1194 (1963) Bailey V. State of South Carolina, 289 U.S. 412,420 53 S.CT. 647.670.77 L.Ed. 1292.
Based on Brady V. Martcand, 393 U.S. 15092 S.CT. 963,311 .ed. 20.104 (1992)
Bagley V. United States, 493 U.S. 669,681-82,105 S.CT. 239589 L.Ed. 2 d 481 (1995)
Chabot, 300 S.W. 3d 968 ETex. Crim. App. 2009] Carmona, 185 S.W. 3d 493 ETex. Crim. App. 2006] Cooper V. Aaron, 358 U.S. 1, 98 S.CT. 1401, 3L.Ed. 2 d 5
*39 STATEMENT OF FACIS IN SURPORT OF CRASES CITED
State Cassell V. State of Texas, 339 U.S. 282,283.70 S.CT. 629,94 L. Ed. 839 (2issenting opinion)
Creswill V. Grand Lodge Knights of Pythias, 225 U.S. 246,261,32 S.CT. 882.56 L.Ed. 1074.
Davis V. Wechsier, 263 U.S. 22, 24.44 S.CT. 13,14. 68 L.Ed. 143.
Feiner V. People of State of NewYork, 340 U.S. 315, 322,323. not.4. 71 S.CT. 303,307,95 L.Ed. 267
Fierro, 934 S.W. 2d 370, 373 [Tex.Crim. App. 1996) Giglio V.U.S., 405 U.S. 150, 31 L.Ed 2nd 104, 92 S.CT. 763
Ghahnemani, 332 S.W. 3d 470 [Tex. Crim. App. 2011) LEXIS 330
Haley V. State of Ohio, 332 U.S. 576, 577.68 S.CT. 302.303. 92 L.Ed. 324;
Kem-Limerick,INC. V. Scurlock, 347 U.S. 110,121, 74 S.CT. 403,410,98 L.Ed. 546.
Keeter V. State, 115 S.W. 3d 756. [Tex. Crim. App. 2005]
*40
STATEMENT OF FACTS IN SURPORT OF CASES
CITED
State
Cases: Leyra v. Denno, 341 U.S. 554,558,74 S.CT. 114, 1119.98 L. Ed 948:
Mooney U. Holahan, 294 U.S.103, 55 S. CT.340, 79 L. Ed 191.
Hesarosh v. United States, 352 U.S. 1, 115 S.CT. 1, IL. Ed. . 2 d 1.
Martin V. Hunter's Lessee, IWheat.304,4L.Ed.97: Malinski V. People of State of New York, 324 U.S. 401,404, 85 S.CT. 181.183, 89 L.Ed. 1029.
Niemotko U. State of Maryland, 340 U.S. 268,211,11 S. CT. 325,329,95 L.Ed. 261.
Napue V. People of the State of Illinois, 360 U.S. 264 79 S. CT. 1113 3L.Ed. 2 d 1211.
Pyle v. State of Kansas, 311 U.S. 213,63 S.CT. 171,89 L.Ed. 214.
People V. Savvides, IN.V. 2d 554,559, 154 N.Y. S. 2 d 885,889.136 N.E. 2 d 853,854-855.
Payne U. State of Arkansas, 354 U.S. 560,562, 78 S.CT. 844,841, 2 L.Ed. 2 d 915.
*41 STATEMENT OF FRCTS IN SURPORT OF CRASES
CITED
Cases: Ross V. State, 233 S.W. 2d 126, 156 ETex. Crim. App. 1950 Certiorari granted NIS. CT 529,340 U.S. 946, 95 L.Ed. 682, reversed NIS. CT. 942,341 U.S. 918.95 L.Ed. 1352.
Both V. United States, 354 U.S. 496, 499.99. S. CT, 1304, 13151 L.Ed 1498.
Smith V. State of Texas, 311 U.S. 128.130, 61 S. CT. 164, 165. L.Ed. 84.
Stroble V. State of California, 343 U.S. 181, 190, 92 S. CT .599, 603, 93 L.Ed. 892. (dissenting opinion).
Sterling V. Constantin, 289 U.S. 398.398, 53 S. CT. 190. 195, 99 L.Ed. 395,
Southern Pacific Co, V. Schuyler, 229 U.S. 601, 611. 33 S. CT. 299.280, 59 L.Ed 662.
Thomas V. State, 241 S.W. 2d 399, 404 (1992)
United States V. Bagley, 493 U.S. 669, 681-82, 105 S. CT. 339589 L.Ed. 2d 481 (1995)
Web V. State, 298 S.W. 2d 158, 161 ETex. Crim. App. 1953
Whitman V. Wilson, 318 U.S. 688, 63 S. CT. 840, 89 L.Ed 1083 and; white V. Regen, 324 U.S. 960, 65 S. CT 998,
*42 STATEMENT OF FACTS IN SURPORT OF CRASES CITED
State 89 L. Ed. 1348.
Cases:
Ward V. State of Texas, 316 U.S. 547,550.62 S. CT. 1139,1141,86 L. Ed. 1663.
2L.Ed 1575, 3L.Ed 2d 1991
13 111.2d 566,571,150 N.E. 2d 613,616.
33 S.CT. 1194 (1963)
19 S.CT. 1173, 3L.Ed. 2d 1217
Federal Almeida V. Baldi, 3.Cir., 195 F. 2d 815, 33 A.L.R. 2d 1407; United States ex rel.
Curran V. State of Delaware, 3rd.Cir; 259 F. 2d 707.
De Marco V. U.S., 928 F. 2D. 1074 (11th Cir. 1991)
Gonzalez-Soberal V. United States, 244 F. 3d 293 (1st Cir. 2001)
Guzman V. Secretary, Dept of Corrections, 663 F.3D. 1336 (11th Cir. 2011)
Griffin V. Pierce, 622 F. 3D. 831. (7th Cir. 2010)
*43
STATEMENT OF FACTS IN SURPORTOF CRASES CITED
Federal Cases: Jones V. Commonwealth of Kentucky, (6th Cir); 97 F. 2d 355, 338, with in re Sawyer's Petition. (14th. Cir., 229 F. .
Montgomery V. Ragen, D.C., 86 F. Supp. 382 See generally annotation. 2L.Ed. 2d 1575.
Moore V. Marc, 254 F.3D.1235, 1241. (10th Cir. 2001) Steinkuehler V. Megchner, 116 F. 3d. 441,445 (8th. Cir. 1999)
Thompson V. Dye, 3rd. Cir., 221 F. 2d 763; United States ex rel.
United States V.Tucker, 716 F. 2D. 576,585,587. (9th Cir. 1983)
United States V. Webster, 392 F. 3d 787, 801. (5th Cir. 3004)
Van Liew V. U.S., 321 F. 2 d 674 (Tex.) 1963)
*44
Sumary of the argument Page:
ARGUMENT Page:
Summary of the CASES Page:
EVIDENCE
Page:
PRAYER
Page: (1)
CERTIFICATE OF SERVICES Page: (1)
*45 State failed To correct Perjured Testimony which tainted - influenced The minds of the jurors, and did Contribitate to the defendants conviction and sentence and prejudice the defendant from get ing a fair and impartial trial.
It is established that a conviction obtained through use of false evidence, known to be such by representatives of the state, must fall under the (14) Fourteenth Amendment. The same result obtains when the State, Although not soliciting False evidence, Allows it to go uncorrected when it appears. The principle that a State may not knowingly use false evidence, Including false testimony, To obtain a tainted Conviction, Implicit in any concept of Ordered Liberty, Does not Cease to apply merely because the false testimony goes only to the credibility of the witness. The juprs estimate of the truthfulness and reliability of a Given witness may well be determinative of guilt or innocence, and it is upon such subtle factors as the possible interest of the witness in testifying Falsely that a defendant life or liberty may depend. Retitioner was denied due process of law in
*46 violation of the Fourteenth Amendment to the Federal Constitution because important witnesses for the state in a aggravated kidnapping charge, Plus a aggravated Sexual Assault charge of the Petitioner falsely testified.
Const. Law Conviction obtained through use of false testimony, known to be such by representatives of the State, is a denial of due process, and there is also a denial of due process, when the State, though not soliciting false evidence, allows it to go uncorrected when it appears. U.S.C.A. Const. Amend 14.
Const. Law Principle that a State may not knowingly use false evidence, including false testimony, to obtain a tainted Conviction, implicit in any concept of ordered biberty, does not cease to apply merely because the false testimony goes only to the credibility of the witness. U.S.C.A. Const. Amend 14.
Const. Law Assistant States Attorney did nothing to correct false testimony of witness, fact that jury was apprised of other grounds for believing that witness may have had an interest in testifying against petitioner did not turn what was otherwise a tainted trial into a fair one. U.S.C.A. Const. Amend 14.
*47 Constitow Assistant States Attorney did nothing to correct False testimony of witness, petitioner was denied due process of law.
Federal The United States Supreme Court has the duty to Courts make its own independent examination of the record to determine facts when Federal constitutional deprivation are alleged.
Federal In cases in which there is a claim of denial of Courts rights under the Federal Constitution, the United States Supreme Court is not bound by factual conclusions of lower courts, but will re-examine the evidentiary basis on which those conclusions are founded.
The question presented is whether on thesefacts the failure of the prosecutor to correct the testimony of the witness which he knew to be false denied petitioner due process of law in violation of the Fourteenth Amendment to the Constitution of the United States.
First, it is established that a conviction obtained through use of false evidence, tees known to be such by representatives of the State, must fall under the Fourteenth Amendment.
*48 The same result obtains when the State, although not soliciting false evidence, allows it to go uncorrected when it appears.
*49
*50
(1) Dec 1, 2014 State Failed To Correct Perjured Testimony which Tainted-Influenced The minds of the Jurors
(ARGUMENT)
Nipple V. Illinois, 79 S.Ct 1173 AR 11771 made clear "It is established that a Conviction obtained through use of false evidence, known to be such by representatives of the State, must fall under the (14) Fourteenth Amendment. The same result obtains when the State, Although not Soliciting False evidence, allows it to go uncorrected when it appears. The principle that a State may not knowingly use false evidence, Including false testimony, To obtain a tainted Conviction, Implicit merely because the false testimony goes only to the credibility of the witness. The jurys estimate of the truthfulness and Reliability of a Given witness may well be determinative of quilt or innocence, and it is upon such subtle factors as the possible interest of the witness, in testifying falsely that a defendants life or Liberty may depend. Petitioner was denied due process of law in violation of the Fourteenth Amendment, to the Federal Constitution because important witness for the state in a Aggravated Kidnapping charge plus a Aggravated Sexual Assault charge of petitioner falsely testified that petitioner had jump out the drivers door and can into the forest behind his landlords house. But the Victim said that he climb over the console in the truck over her lapand went out the passenger door, she thought under the steering wheel and drove about 20 to 30 feet and that's when the police pulled her over. The Victim stated You can not open her driver door from the inside or the outside it is jamel. Officer Anthony Glenn with the Harris County sheriffs office, stated he was parked in front of Gary Caskey's house on 45 pine street, Huffman, Texas he said it was dark outside. He stated under oath that he saw threw Gary Caskey's yard and threw the forest and threw a house tryaler behind Gary Caskey's house that a dark large vehicle was going down Elm street behind 45 pine street. He said he came up pine street to main street, he took a left turn on main street and came to Elm street, he also took a left turn on Elm street
*51 (3) He said he came up behind the vehicle that was parked in the road which he said it was steal dark outside and he said he had his headlights on but he could not tell you what color the vehicle was even through it was good an in the morning. He stated when he pulled up behind the vehicle that a white male jump out the drivers side door and ran into the forest with a white shirt and blue jeanshots on. He stated he walked-up side of the vehicle with his Shotgun because someone else was in the vehicle, he said there was a women setting in the passenger seat that look like she was beat up.
Go To Trial Transcript Volume (4) Part (2) James Thomas Dousay. He works for the Harris county sheriffs office. I'm currently assigned to the Houston FBI violent crime Task Force. Page 208, Line 10 threw 12 , then Line 16 threwline 19, This office states there is no Goose egg on her forehead as officer Anthony Glenn stated (g your old Girl)
*52 (3) Amanda Smith, testified that I took her to a secluded wooded area why she is blacked out and she said it was at the end of che- rny Larual street Now how is she going to no this and she is black out but on the withess stand she said it was at the end of Holly Lane, she told in her Verbal Statement and Audio statement taking by James Thomas Dousy the FDI Agent that I took her to the end of cherry Larual Street this is also stated in the police report, her verbal statement, her Audio statement. Amanda Smith testified that she was not smoking kush on the night of January 18, 2013 and drinking but Gary Caskey said she was smoking kush that night and drinking Go to trial transcript Volume (3) Gary Caskey stated on the witness stand page 136 Line 9 threw 10 then Line 11 threw 12 Go to page 20 of Volume 4 Gary states in Line 23 threw Line 25 yes a Goose egg on her head. Page 39 Volume 4 Line 1 threw 19 Page 50 of Volume 4 Line 3 threw 11 Gary Caskey's states that Amanda Smith is drinking Vodka that she said in her testimony that she wasn't drinking Vodka that night Page 50 of Volume 4 Gary Caskey also states in Line 12 threw 25 then 26 and a smith and Gary Mounting the snight and drinking vodka why is she saying she wasn't smoking this when she testified under oath on the witness stand Iff all this is true they are hiding at off from the Jury and the Judge hook at all these lies and perjury testing they are the y hiring about. Then what is their use? did they also tell Read all of Page 51, 52, 53, 54, 55.
*53 (1) Page 57 Line 23 threw 25 you also stated that when you saw me, Gary mount leaving your residence the night of the incident, that he wasn't wearing any shirt; is Page 58 Line 1 that correct Line 2 Thats the way I remember it (This backs my claim up on the perjury testimony the Cup gave Anthony Glenn he said I had a white shirt on and cut of Blue Jean shorts). See: Page 44, 45. Page 146 of Volume 4 Line 1 threw 25 Gary Caskey said I got in the drivers door Amanda Smith says her driver door doors not open. Gary Caskey said I was driving then on Page 156 line 10 he says No he don't no who's driving.
Gary Caskey says Page 166 Volume 4 Line 22 threw 25 She was living in her surbubba her and the kills when she moved in with her him But Amanda Smith testified and said She was never living in her vehicle prior to moving in with her him.
Amand Smith testified on the witness stand that she had no sex with nobody from Jan 19, 2013 back to Jan 9, 2013 this is what the District Attorney asked her and my trial Lawyer asked her the same thing and she said no both times. Now the DNA Test shows that the test came back enconclusive mix-matched had my DNA surposely in her and also and the Male Seman in her also This is what the DNA Forensic Expert Christy Smejkal Testified too. (This was too Now Sexual Assault nurse examiner stated that on Page 134 she asked Amanda Smith Line 2 threw Line 5, The last question asked, when was the patients most Sexual recent—most recent sexual contact with a male up to one week prior to the assault. And she said she had none.
*54 (5) How is it that Amanda Smith and Gary Caskey called Officer Richard Jenkins back out to the crime scene later that afternoon and tell him that they had more evidence to give him. Which Officer Jenkins testified that he found Amanda Smiths Black Paganers she knew it around the house at the foot of Ggry Cas keys beded in his bedroom. Now these parlamers had my seman in the croch of them and they had Amanda's blood on them now is this and the beating to place in her Green Sar bubom and the sexual Assault suppose of took place in the vehicle also so explain the blood on them and my Seman on them and they was found at Gary Cas keys too for the bed plus there was another male seman and DNA found on them also. This proves that she was sleeping with Gary mount as his Girlfriend which she liked about and she lied about me catching her and Gary Caskey having sex that night. Officer Jantins stated and testified that he pick up a orange and black barley Dourison Blanket and a Black Blanket a blue shirt, Pinkshirt white shirt, yellow shirt. Sray Tactet, Leperod Blacket from the scene that afternoon when they called him backout there, But the FBI Agent said he went back out there. Q days later when they called him and pick all this evidence up.
*55 Now, I just want to point out to you some of the things that I've observed in this case. First of all, it was obvious that Amanda Smith had some sort of fall wherein she slipped on I don't know if it was a porch. I don't know if it was a ramp leading up to a porch or whatever because of the wetness. Now, I find it hard to believe that the only injury that she would have received from that fall is just on her elbow and no other parts of her body. And the elbow was dislocated, which would mean that that was a tremendous impact that she had, a dislocated elbow. I fall. I don't dislocate my elbow. She fell and she dislocated her elbow. She had to go to the doctor and have that splint put on her elbow. And the pictures that you saw there, some of them reflected the redness of her elbow even after even after sometime when it was in the healing process. You could see the redness in her elbow from some of the pictures that they had there. There was an allegation with regard to her elbow and the split that she was wearing that Mr. Gary Mount dragged her by the splint or used the splint some kind of way to abduct her. But of all those DNA tests that we got there, there was none of Gary Mount's DNA on that splint or any wrapping or bindings by him. Not one inkling. Not even when they used
*56 Kary Mullis' polymerase chain reaction which magnifies DNA to a greater level even when its minutane. Still couldn't find any of his DNA on that wrapping with regard to her arm.
We don't know what injuries were caused by her fall. We don't know what injuries were caused by her fall. We don't know what injuries were caused by other activities that she had during that day or when these injuries occurred. Because the expert medical examiner found abrasions in her terms that were old. She found abrasions that were new. And she found abrasions that were healing. And she acknowledged that due to human variation different people heal at different times.
But she got to that hospital relatively quick from the time period that this alleged situation occurred, within hours. You know, you have to determine in your mind how much healing could have occurred and where those old wounds came from and where the in-between wounds came from and where the healing wounds came from. You have to sit down and think about that. I wanted to point to your attention about a situation where an officer came before you and said that there was some sort of a white T-shirt, that Gary Mount was wearing. And he said that because of the fact
*57 that there was dew on the ground and because it had gone into night and early morning, when they got out there because of the remote location, because the fact there was dew on the ground, the shirt had no dew on it, because of the fact that the dog hit on the shirt, he felt that the shirt belonged to Gary Mount.
However, in the testimony of both Amanda Smith, the alleged victim, as well as Gary Caskey, neither one of them could recall if Gary Mount was even wearing a shirt during that night. Not one. Amanda Smith could not say that Gary Mount was ever wearing a shirt that night and didn't know what color shirt he was wearing if he was wearing a shirt, neither could Gary Caskey who was not in a situation where he felt threatened. Obviously he wasn't. He stood supposedly in the room between them. So obviously he didn't feel too threatened by Mr. Gary Mount. I want to call your attention and it's your duty, as I told you, to look at the testimony of the officers and all of the people involved in this case and determine their credibility. So I'm not saying they're not credible or credible. That's your job to determine whether they're credible or not credible. Amanda Smith got on the witness stand and
*58 said that there is no way that she could ever enter into her vehicle from the driver's side because that driver's side door was jammed shut. And she testified that people were coming in and out of her car using the passenger side. But the police officer Deputy Glenn that testified said that he distinctly saw Mr. Gary Mount come out of the driver's side and run into the woods. That's what he testified to under oath, sworn testimony. I'm not saying he's a bad police officer. I'm saying he's lying. I'm saying he forgot what happened that night. I'm saying that in his excitement of doing all those things and trying to perform his duties that he didn't guite get right. And if he didn't get that point right, is there some other point that he didn't get right also, too? If these two people, Gary Caskey and Amanda Smith, don't remember that there was a T-shirt that Gary Mount was wearing or whether or not he was wearing a T-shirt did they leave out something else? Was there something else missing? Did they distort the facts in something else? Now, Gary Caskey admitted that he had been drinking vodka. He said he only had a couple or, two or three drinks, but we don't know how
*59 many drinks he had. He could have been stone-cold drunk. Vodka is a pretty powerful drink. He had this vodka to drink and he told you a story about how he got all the way from the furthest northeastern corner of Harris County, Texas, up near the Huffman area, all the way to the very southwest part of Fort Bend County in an hour, an hour and a half and he made two stops along the way, a 15 -minute stop and a 20 -minute stop. And he got there in that time period. He couldn't tell you what route he traveled that night to get all the way from near Huffman northeast all the way to the southwest side over in Rosenburg, Texas. He told you he took 288. Now, some of you might be here from Houston, but I don't see how you're going to get there from 288. That seems like the longestcut that you could possibly take, why? Because you're going all the way down to southeast, then you're coming all the way back around. Even no matter what traffic was, you just can't take 288 to get over there. It's not going to take you over to Rosenberg. 57 might, you know, somewhere in that mind, but not 288. I don't think Mr. Caskey was trying to deceive you. That's not what I'm presenting to you. I'm saying he's an elderly man. He's little bit confused about the facts.
*60 And here's the thing, he didn't see anything. He stood there on the stand and told you that when Mrs. Amanda Smith came out of that room, he didn't observe any bruises on her.
That's what he told you. No bruises on her whatsoever when she got out of that room. And he also told you he didn't see what happened in that room. He speculated because he heard a thump that somehow Gary Mount slung somebody down or did something or another, but he didn't see it. He did not see anything. He told you that he didn't see any thing. He stood on the stand and told you, he didn't see he didn't see any bruises on her. And he came back and told you that when he got back and looked at her while she was in the ambulance, he didn't see any bruises. He saw some swelling on her face, but he didn't see any bruises like the kind you saw. He also testified that when she fell off the porch that he truthful did not know how many injuries she had and what the extent of her injury was when she fell off the porch and what her body looked like because he'd never seen her without her clothes on and he'd never seen her in a situation where he could have seen and observed all the injuries that she had
*61 occurred as a result of the fall that she had. And the DNA expert came up here and told you about the polymerase chain reaction of Kary Mullis. And she also told you that they found another male's DNA on the items. Another male. Yet, they only tested two people, a female, Amanda Smith, they used that as their standard to show a DNA profile. And they tested Gary Mount. That was the DNA profile for him. And they came back due to science and told you there was another male contributor. It was another man out there who that DNA belongs to, another man that DNA belonged to. And she admitted on the stand that it's possible that Amanda Smith could have had sex with another man because there's another male's DNA out there that was found on all the items and inside of her vaginal Amanda Smith got on the witness stand and told you that she didn't remember anything that happened inside the bedroom. She didn't remember anything that happened outside of the household when allegedly the two people got into her vehicle. She said she blacked out and she passed out and she did not remember anything that occurred when they allegedly got inside their vehicle. Not a thing. She was blacked
*62 out the whole time. It might have been the (Kush (aka synthetic marijuana) that she was smoking. It might have been the vodka. It might have been the combination of both and her mental medication. We don't know. She was high. And she's had sex with another man because the DNA profile shows another male was out there. Amanda Smith was basically told by other people what happened to her. She didn't tell you from what she experienced, because she was blacked out half the time. She told you from what she heard other people say. That was her testimony. What she heard other people tell her and put in her brain that happened. That's where she got her information from (Look at RR4, At 161) Line 1 through 20) What I want you to sit down and determine is whether or not there is a doubt that Gary mount did this, since nobody saw what happened. That's what I want you to sit down and make a determination about. And there's somebody else's DNA out there who was not tested. We don't know if that was Gary Caskey's DNA. We don't know whose DNA that was. But another male was out there. And another male had interaction with her. We know that for sure, OKex.
*63 And I think at the conclusion, when you sit down and you analyze all the evidence that's been presented before you, you see that there are alot of inconsistencies, perjury testimony's, and Insufficient Evidence. You see that there are something's out there that deserve some questioning. And you see that some of these testimonies from some of these people were not truthful.
Amanda said she didn't smoke any Kush. Gary Caskey said, yeah, I saw them smoking Kush. And he told you it was synthetic marijuana. And he told you that they had been drinking vodka, but not Amanda Smith. No, I didn't have any Kush. What else is she lying about? What else is she lying about?
*64
*65 (Napue v. Illinois, 19 S.CT 1193 at: 1199) made clear "It is established that a Conviction obtained through use of false evidence, known to be such. by representatives of the state, must fall under the (14) Fourteenth Amendment. The same result obtains when the state, Although not soliciting false evidence, allows it to go uncorrected when it appears. The principle that a state may not knowingly use false evidence, Including false testimony, To obtain a tainted conviction, Implicit in any concept of ordered liberty, does not cease to apply merely because the false testimony goes only to the credibility of the witness. The jurys estimate of the truthfulness and reliability of a Given witness may well be determinative of guilt or innocence, and it is upon such subtle factors as the possible interest of the witness in testifying falsely that a defendants life or liberty may depend.
(Brady v. Maryland, 313 U.S. 83, 89, 83 S.CT 1194, 10LEd. 2d 215 (1963) (Due process is violated when the state refuses to disclose requested evidence that is favorable to the defendant regarding either punishment or guilt); United States V. Bagley, 419 U.S. 661, 681-82, 105 S.CT. 3315 89 L.Ed. 2d 481 (1985) (Due process requires reversal if the state
*66 regardless of whether the defense made a request, failed to disclose relevant, mitigating evidence to the defendant.)
Ex Parte GHARREMANI, 332 S.W. 3d 400 (Tex. Crim. App. 2011.) Lexis 330: (The court ordered these application be filed and set for submission to determine whether the state violated Brady when it failed to turn over offense reports and e-mails, Audio Statements, DNA Reports, Verbal Statements, Police reports, located in the state's work-product folder and, if so, whether the violation created a reasonable probability that, had the evidence been disclosed to the defense, the results would have been different as to the punishment. The due process clause of the Fourteenth Amendment is violated where the state knowingly uses perjured testimony to obtain a conviction. If a defendant is able to establish both that the State knowingly used perjured testimony and that it failed to disclose evidence showing the falsity of that testimony, the defendant is entitled to relief.
(De Marco V. U.S., 928 F. 20.1094 (11th Cir. 1991)) (.. a conviction must be overturned which rest in part upon the knowing use of False testimony if
*67 there is any reasonable likely hood that the false testimony could have affected the judgement of the judge. And the defendants conviction and sentence where it most likely prejudice the defendant.)
(Guzman v. Secretary, Dept. of Corrections, 463 F.3D (11th Cir. 2011). Prosecutor Misconduct, knowingly used perjured Testimony.)
(Based on Brady V. Martcand, 373 U.S. 150.92 S.CT. 943, 31 1.ed 20104 (1992). (Requires Proof that (1) Prosecutor knowingly used testimony or failed to correct what he subsequently learned was false testimony and (2) such use was material. That there is any likelyhood that the false testimony could have affected the judgment. (Early recant of verbal statement, judio statement, police report, Giving to the D.A. Mr. Waterfield, knew about the evidence and withhold it from trial and defense the D. A. withheld evidence).
(Grithin V. Pence, 422 F.3D. 831 (11th Cir. 2010). ... State knowingly used perjured testimony.
(Robinson V. Mills, 592 F.3D. 730 (4th Cir. 2010) ... the state, in violation of (Brady V. Maryland, 373
*68 U.S. 23,83 S.CT. 1194, 10L.ED. 2D. 215 (19L3)
withheld impeachment evidence that would likely have altered the outcome of the case: here the District Attorney suppressed impeachment evidence. Epolice report, verbal Statement, Audio statement, DNA Reports, Photo's] was material under Brady.
(Violation of Due Process)
(Giglio V.U.S. 405 U.S. 150, 3LLEd 2nd 104, 92 S.E. 763....... (The Nondisclosure if this evidence affecting the victim or witnesses credibility violated due process and justified a new trial, Irrespective of the Governments good faith or bad faith.... Conviction on Testimony known to prosecution to be perjured as denial of due process. 2 L. Ed 2d 1575, 3LED 2d 1991;... withholding or suppression of evidence by prosecution in criminal case as viriating conviction... when the reliability of a given witness may well be determinative of guilt or innocence, The Prosecution's Nondisclosure if evidence affecting credibility justifies a new trial, under the due process clause, irrespective of the of the prosecution's good faith or bad faith.... Under the due process clause, a new trial is required in a criminal case if false testimony introduced by the state,
*69 And allowed to go uncorrected when it appeared, could in any reasonable likelyhood have affected the judgement. . . . (83 S.C. 1184 (1963), Held that suppression of material evidence justifies a new trial "irrespective of Good faith or bad faith of the prosecution?... Moreover, whether the nondisclosure was a result of negligence or design, it is the responsibility of the prosecutor... For these reasons. The Due process requirements enunciated in Vapue V. Illinois and the other cases cited earlier require a new trial. and the judgment of conviction is therefore reversed and the case is remained for further proceedings consistent with this opinion. . . (Ex Parte Adams, 168 S.W. 2d 291, 292 Tex.Crin. App. 1929.) The state has an affirmative duty to disclose all material, exculpatory evidence to the defense under (Brady V. Maryland, 373 U.S. 83) (1943) Evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the results would have been diffrant. (Van Liew V. U.S., 321 F. 2 d (474 (Tex.) 1943) Since words asked and answered could not change
*70 and nothing could be done to alter or improve governments case which reviewing court found insufficient, per jury cause was required to be remanded with directions to enter judgement of acquittal.
By Parte Cairmona, 185 S.W. 3d 492 (Tex. Crim. App. 2006) The applicant was adjudicated guilty of sexual Assault based entirely upon per jured testimony.
(Ex Parte Chabot, 300 S.W. 3d 768 (Tex. Crim. App. 2009) The court also agreed that it was more likely than not that Pabst's perjured testimony contributed to the Applicants conviction and punishment.
(Ex Parte Adams, 768 S.W. 2d 281, 293 (Tex. Crim. App. 1989) That the state knowingly used perjured testimony to secure the applicant's conviction.
(Ex Parte Nassid Oehegha 2 Ghabre maqn 382 S.W. 3d 1416 (Tex. Crim. App. 1989) The applicant of the these applicant was sent and sent to submission to determine
*71 Evidence 99.(1-0)
*72 (1)
Deputy ANTHONY GLENN (Evidence) Aggravated Perjury Testimony Under Oath On The witness Stand Dec 1,2014
Direct Examination By Mr. Wakefield
Resiunt In RR3, at 30) Line 14) Deputy Glenn States there is no streetlights. There is a street light in Gary Castexis yard. There is a streetlight at the boat ramp just down the street and there is other streetlights also.
Resiunt In RR3, at 46) Line 18 thru 19) Deputy Glenn Stated I believe she had a small bump on her head. In RR3, at 49) Line 13 thru 18) District Attorney ask Deputy Glenn, what I want to ask you, you said there was a bum on her head. Explain what that bump looked like. Like a little goose egg. Did it look freash? Yes, sir.
In RR4, at 208) Line 4) District Attorney ask James Bousay on Dec 3,2014, when you saw Kaley Smith, did she have any injuries to her face? In RR4, at 208) Line 10 FBT Agent I did not notice any on her face.
In RR4, at 208) Line 16 thru 19) District Attorney ask FBI Agent, Did you see any kind of lump to the back of her head? I did not. She had hair covering that area.
*73 In RR3, at 49) Line 24 through District Btorney Ask Deputy Glenn, After talking to Gary and talking to Hayley, did you go outside and inspect the dirt area RR3, at 48) Line 1 through nearby the entryway and exit way of the house? Yes, I did. Okay. Tell the jury what you found there.
Pegjury In RR3, at 48) Line 4 through Deputy Glenn, I found what appeared to be drag marks where it looked like a person had been drag out toward the fence, toward the driveway.
In RR8, at State's Exhibit (5), (6), (9), (8) He's not show any drag marks at all, if you will look real close on the ground the dark collar stuff on the ground is pine straw, leaves and debris out of the trees around there that has falling to the ground.
Pegjury In RR3, at 53) Line 14 through) Deputy Glenn stated due to it being nighttime or dark hours, we were able to see the top-mount tailight on the Suburban.
Sgt. Halm got there In RR3, at 99) Line 4 through) Shortly after 6:30 a.m. I believe it was about 6:30, 9:00 a.m. Sgt. Halm got to 65 pine street James Dousey got to 65 pine street at 9:00 a.m.
*74 In RR4, at 178 ) Line 24 thru 25 ) District Attorney Bok James Thomas Dousy. FBI Agent investigator for Harris County shrieffis Department. All right. And then what time did you get to 65 ? Pine? In RR4, at 199) Linel thru 2) I think I was at the scene just after 7:00 a.m.
In RR3, at 53 ) Line 11 thru 25 ) All right. And what did you do next? I was instructed by my sergeant to go and just check what vehicle that was. Okay. So where did you gofrom there? I went this direction to Main, around the block to Elm. All right.
In RR3, at54) Line 4 thru 4) District Attorney What are we looking at? That's Elm Street. All right. Now in particular picture, I'm not seeing any houses like we do see on the other Perjury street. Is that accurate on what that is? Yes, sir.
In RR3,at 91) Line 4 thru 7 ) Sgt. Joe Halm stated But there's houses behind on the next street over, so there's opening areas in some places and some places you can't see at all through it.
*75
(1)
In RR3at54)Line? thru?) District Attorney ask Deputy Glenn, Now, at night are there any lights that are illuminating this forest? Repuity Glenn Says No, sir. There is houses all up and down this road that keeps there pouch lights on and thay have street lights. Read In RR3, at 81)Line 4 thru?) D.A &; Deputy Glenn Testimony: Pexjury In RR3, at 54)Line 15 thru21) District Attorney A&;k Deputy Glenn, All night. When you approached Pexjury on Elm street--first of all, describ the car that you approached on Elm Street? It was an older model Suburban. What color was it? Do you reemergent remember? I just remember Pexjury it was a dark-colored Suburban. In RR3at 55)Line 1 thru 25) Okay. Was it driving down one side or the other side of the street? It was on the right side. All right. When you Pexjury approached the car, did you have your emergency lights on? I did. What about your siren? No siren. Okay. Now, as you approached the car, what's the first thing you see come out of that car? I saw a male Pexjury exit the vehicle and run into the woods. When you saw him exit the vehicle, did he exit from the passenger side or the driver's Pexjury side? Drivers side. All right. Did he leave the drivers side open when he existed the
*76 District Btorney Deputy Glenn vehicle? Yes. With your finger, draw please for Peis [10] me the direction he ran? (witness complies). Okay. Now, when you saw him running, what was Peis [1] he wearing? It appeared to be blue shorts and a white shirt. In RR 3, at 54) Line Ithru 25) Is that description important to you? Yes. Why? That's the description I called out over the radio, when I said I saw a male running. Okay. Now, did you see that male again that Peis [10] day? Yes. Do you see that male in court today? Yes, sir. Would you please identify him and- point to him and identify him by what he's wearing today. Gary. He's wearing the gray suit, brown tie. Your Honor, may the record reflect the indentification? The record will reflect that the witness has identified the defendant. Now, when you saw him run from that car, okay, did he look at you as he was running? I don't recall. How fast was he going? He was doing a good clip. When he ran off into that forest, were you In RR3, at 57)Line Ithru 25) able to follow him? I did not follow him. Why? I could still tell there was an occupant in the vehicle, so I approached the vehicle first. When you saw the occupant in the vehicle, where was it, in the passenger side or the driver's side? The passenger side. All right. Now, when you approached the vehicle, were you armed?
*77 District Attorney Deputy Glenn Peak! Yes, sir. What were you carrying? I was carrying a shotgun. Okay. So you approached the vehicle, all right. Was the drivers side door still open? Yes, sir. Was the engine running? Yes, sir. Okay. And when you approached the vehicle, tell jury what you see. I saw a female inside, huddled on the passenger side. She was cradling, like, her arms. Her arms were, like, held up against her body. She was crying. She was shivering. She appeared to have InRR3, at 58 )Line (thru 1) been assaulted. And all she - - she was just saying that she just wants to go home. Now, when you say she appeared to be assaulted, did you see injuries on her? Did the beuising appear to you to be fresh? Yes, sir.
District Attorney Rebute Armanda Smith's Testimony To Prove Deputy Glenn Committed Aggravated Perjury Under Sworn Oath
In RR 4 at 176) Line 14 thru 25) And when he drove you, do you remember him driving you back towards River Chase--I'm sorry--River Terrace? Yes. Was he saying anything to you as you were driving? No, were you saying
*78 anything to him? No. And when you got to River Terrace, did you guys turn down Pine Street? Yes. InRR4, at 1nn) Line I thru25) Was it Pine Street or was it the Street right north of Pine? Mr. HAYNES: Your Honor, I object to that as being asked and answered. She said that it was Pine Street. The Court: Sustained. Mr. WAKEFIELD: When you turned into River Terrace, do you remember seeing any police there, when you first got there? I don't quite remember. When you turned into River Terrace, what happened next? We turned on Elm Street. Elm Street, Elm sorry. Let me show you State's 18; all right. When he turned on Elm Street, do you know why he had done that at the time he turned? Yes. Yes. Did he tell you why? I remember why now. What happened? Because we had seen the police. Okay. Did he say anything when he saw the police? I don't remember. InRR4 at 113) Line I thru25) All right. Now, after he turned down Elm Street, what did Gary do next? He jumped out of the vehicle around here (indicating). Can you circle it? Try to push down.(Witness Complies.) Okay. Right around there. All right. And when he jumped out of the vehicle, did he jumped out using the driver's door? I--Or do you remember? I don't remember. I
*79
think he jumped over me or something.
Okay. After he ran off, do you know which direction he ran? Yes, sir. Which direction was that? Back towards the house. All right. And when he ran back towards the house, what did you do? I jumped in the drivers seat. Okay. And when you jumped in the drivers seat, did you stop the car? I think I drove go many feet really quickly until I saw the headlights--police lights In RR4 at 1193 Line I
the other side. I saw Amanda Smith States to Christian Owen, RN (He brought me back to Elm Street. He jumped over me and out of the car and ran. I jumped in the drivers seat and hauled it, then I saw police lights and told them what happened?
*80
the Suburban 9 on Elm street
In RR4 at 192) Line 7 thru 21) Mr Haynes Aske Amanda Smith, Okay. Now, that Suburban that you have there, is it true that that front drivers side door is jammed and doesn't open? Yes. And how long had it been like that? Not very long. I couldn't say. Is it true that if someone wanted to enter and exit the vehicle, they had to enter and exit the passenger side because of the front door being jammed? Yes. There's no way that anyone could have gotten in and out of the drivers side door; is that correct? Not through the door.
*81
Open Statement by Mr. Wakefield
December 1,2014 Inflametory, Aggravated Perjury Prosecutional misconduct
Rejury In RR3, at 11), Line 110. D.A. stated Amanda Smith was living out of her car.
Rebute In RR4, at 144, Line 2 thru 19 Amanda Smith state that she was not living in her car as the D. A. stated only time she was living in her car was after the incident on 1-19-2012.
Perjury In RR, 3, at 11), Line 23 thru 24. D.A. stated that Amanda Smith and her children would be in the Front Ferecetlizs room. Sleeping.
Rebute In RR4, at 149), Line 4 thru 9. Amanda Smith stated her and her kids were staying in the living room.
Rebute In RR3, at 116), Line 18 thru 25, Then RR 3, at 119) Line 1 thru 16. Gary Cas tey stated this is the room I'm letting Gary mount stay in Amanda only seip in there when we had sex
Perjury InRR3, at11), Line 24 thru 25. D. A. stated I was living in the living room instead of Amanda Smith: Living in the living room.
*82 Perjury In RR3, at 14), Line 14 thru 21. D.A. States that Gary mounts picks her up and drags her into the bedroom where Amanda Smith was staying and threw her against that wall so hard that it dented the wall with her Rebate body. (But Amanda said she never was staying in that bed room she was staying in the living room.) (Perjury)
Perjury In RR3, at 14) Line 24 thru 25. D.A. States Gary mount then grabs victim by the neck Rebate like this, with one arm, Now d+RR3, at States Exhibit 82) 7.1 and 8.1 Gary mount(k2) is excluded as the source of the DNA on these items. (L. Nests Swab/R. Nests Swab) Perjury In RR3at15) Line II thru 1le.) D.A. Said and he drags her outside of the house and throws her into atruck. That truck is actually going to be Amanda Smith's. And you will see photographs taken from the scene that show drag marks in the dirt in front of the house. that's where he dragged her all the way back Rebate to that car. Go To RR 8, State's Exhibit 5, 6 7, 8. (It clearly shows no drag marks in this yard.)
*83
EWARRY
Rejury In RR3, at 18 )Line5 thrull)D.B. Stated and as I mentioned with DNA, that sexual assault exam will show the DNA. And the DNA is absolutely consistent with the defendant. And it found in her vagina and also in her anus. R33
Rubute In RR5, at 10 ) Christy Smejkal, Line 8 thrull stated I'm a DNA analyst with the Harris County Institute of Forensic Sciences and The States Expert Witness. Statesat Rubute RR5, at 22)Line 7 thru 14 My Seman was not the only one found as the D.A.sald. ms.smejkal also states in RR.5, at 24) Line 11 thru 13 There was wasn't enough of DNA to Rubute Test. At RR.5, at 30)Line 17 thru 22) Geeport see D.A. Let me seate talk to you all the bit about the deposit of DNA on a person's body, all right. If I were to come up to you and put my hand on your neck and then put my hand away; and that neck was then swabbed for DNA, could that produce a mixture? Yes
*84
RERAL
Reroute
REbute RR4,at 249) Line I thru 25) Bnithney Gonzalez stated that the personal Swab was Perjury negative for Sperm. But ms. Smejkal and the D.A. Said it was positive for Sperm REbute but in RR.4 at 248) It elears all that upand its negative for Sperm ( Perjury By D.A. and Aggravated Perjury by N.S.Smejkal and Prosecutional M.3condulct)
Closing Statement by
Mr. Wakefield District Attorney Resjury In RRS,at 71), Mr. wakefield stated in (Line 22 thru 24 She was strangled. Strangled so bad that it burst the blood vessels in her eyes, so bad that she--the blood vessels in her chest exploded. REbute In RR3,at States Exhibit 82) Page 2 of 5 The DNB results obtained from item(8-1 L.neck) Swab are consistent with a mixture of DNA from at least two individuals. Amanda Smith ( k 1 ) cannot be excluded as a possible contributor to this mixture. There is insufficient information to determine whether Gary Mount (K2) is a contributor to this mixture.
*85 Repute Also, RR3 at States Exhibit 82) Page 2 of 5 it also says The partial DNA results obtained from item 7-1 which is L-Hip Swabs Bite Mark are consistent with a mixture of DNA from at least two individuals. There is insufficient information to determine whether Amanda Smith (KI) or Gary Mount (K2) is a contribution to this mixture.
Repute In, RR8, at State Exhibit 82) Page 3 of 5 It States The DNA results obtained from item 10-1 L-Breast swab are consistent with a mixture of DNA from at least two individuals. Amanda Smith (KI) cannot be excluded as a possible contributor to this mixture. There is insufficient information to determine whether Gary Mount (K2) is a contributor to this mixture. At least one contributor to this mixture is male.
Repute In, RR8, at State's Exhibit 82) Page 3 of 5 it says. The DNA results obtained from items (3-1) Oral swabs), (7-1 R. Neck Swab), (12-1 R. Fingernail Swab) (and 12-1. L-Fingernail Swab.) are consistent with the DNA results obtained from item K1. Therefore, Amanda Smith (KI) cannot be excluded as a possible source of the DNA on these items. Gary Mount(K2) is excluded as the source of the DNA of these items.
*86 REbute In, RR 8, at states Exhibit 82) Page 3 of 5. Insufficient information was obtained from item (II-I)R. Breast Swab) for interpretation of the results.
Pegury In, RR 5 at 92). Line 16 thru 19) the District attorney stated this man has a trang led her to the point where she has blacked out REbute multiple times. in States Exhibit 82-RR8 Page 2 of 5 and (page 2-of 5) 8-I and II-I REbute Swab and R. Neck Swab does not have my DNA on her neck any where.
REbute In, RR 8 at State's Exhibit 82) Page 2of 5. On 9-I (L-Hip Swab Bite Mark) There is insufficient information to determine whether Amanda Smith (KI) or Gary Mount (K2) is a c ontributon to this mixture (There is DNAs consistent with a mixture of adleast two individuals
Pegury In, RR 5 at 92) Line 22 thru 25) District attorney states again. And that Bite Mark was so important to me, because did you see where it was? Inches from her grain. REbute (L-Hip Swab 9-I) Negative for my DNA (K2)
*87 Peejurt In RRSat 94) Line 10 thru11) District Attorney States she was living out of her car. In, RRY part 2)at 191 and 192) Line 24 forthes 19th Mr. Haynes Defense Attorney Rabute ask Amanda Smith. Is it true that Mr. Gary Castexy, when he found you, that you were living in your car inthe (Page 198) RRY) Suburban. No, Sir. That is incorrect.
Peejury In RRS at 95) Line 12 thru 19 District Attorney Used this as perjury test; many He said Gary Castexy says Gary Mount started becoming obsessive. He was trying to call her phone over and over to try and get her on the phone, asking who is shewith, what she's doing. Weckow All you go to do is get a copy of the phone records from the phone Company my number Rabute vs 350-419-0900 for the night of 1-18-2013 around 8:00 to 10:00. To prove this is a liethe used
Peejury In RRSat 98) Line 9 thru11) District Attorney says, And there's this man, this man that apparently knows martial arts, much stronger, attacking her mom(D.B. kied about this I do not no any Martial Arts what so ever at a (1.)
*88 (2)
Pegjury (M, RRS, at 78) Line 15 through the District Attorney Lied about this I did nothilt that girl and there was no goose egg Rubute on her head In RRS at 196) James Thomas Dousy. said I work for the Harris County sheriffs office. In RRSat 17(e) He also say's he is sizygee assigned to the Houston FBI violent Crime Task Force. Rebute In RRS at 203) Line 4 through) when you saw Kaley Smith the 7 year old did she have any injuries to her face? I didnot notice any on her face.
Pegjury In, RRS, at 78) Line 15 through District Attorney states that. He hits her. It doesn't matter who she is. It doesn't matter how old she is or that she's a girl. No one will get in my way at this point. And so he strikes that little girl so hard that she Rebute has a goose egg on her head. You heard Mr. James Thomas Dousy FBI Agent up above about the goose egg not on her face.
Pegjury In, RRS (2) (2) (5) 5 at 78) Line 23 through District Attorney States. And he begins to drag her out. And that's what made those marks Rebute on the ground RRS, at 77) Line 1 through
*89 Rejury District Attorney States I'll agree with you, the dint is all kinds of dirty. It could be anything. You're right. But it's awfully consistent when you see that the exact same pathway he took to drag that little girl-to drag Amanda Smith that gate, that's where those little drag marks Rebute are found. (State's Exhibit 5, 6, 7, and 8 doe's not show no drag marks.
Relury In RRS at 82) Line 20 thru 25) Then District Attorney stated, those are dirty clothes. they'd been around for a long time. Now in RR4 at 158, Part 2 of Two) Lines 8 thru 18) Amanda Smith stated I was wearing a big T-shirt and pajama pants she also stated that most all of my clothes I think were washed all ready.
Relury In RRS, at 82) Line 22 thru 25) District Attorney stated there ieseswas was no mixture here. This is your biggest part of the evidence. This is literally the nail that closes the coffin. There is only one man who was actually had DNA on RRS, at 83) Line 1) her anus and her vagina. He's sitting right there. Rebute In RR4 at 241) Line 1 thru 25) Bniffney
*90 Repute Gonzalez stated that the perianal Swab was negative for sperm. But Ms. Smejkal mejut and the District Attorney said it was Repute positive for sperm but in RR4, at 248) It Clears all that up and its negative for sperm.
Repute RRS, at 36) Line 19 thru 25) (1kay, 15A-2 sperm. This 15 are the gray sweetpants. All right. The sperm Fraction came back to be a mixture of three people. Now, explain to the jury how that's possible. (This is the District Attorney's Direct examination of Christy Smejkal.) RRS, at 39) Line 1 thru 4) Well, 6kay, so I also put that Amanda Smith and Gary Mount could not be excluded. So Amanda Smith and Gary Mount are there. And then there is another individual.
Repute In RR4, at 182) Line 10 thru 25) District Attorney Direct Examination of Amanda Smith. Now, when you were in the ambulance, do you remember what you were wearing? Just a T-shirt. Okay. Did you have--when --after Gary had bailed out, did he allow you to put on any underpants? No, sir. Did he allow you to put any pants on? Did he allow you to put on any pants at all? No, sir.
*91 were you naked from the waist down when the EMTs got to you? 000
In RR4, at 183) Line I thru 20) Yes, sir. All right. And when you were at the location, were you able to get someone to get you some sweetpants to put on? Yes, sir. All right. So that when you went to the hospital, you could wear them? Yes.
The gray sweatpants was taking out the house after the kidnapping and sexual Assault had took place and we had returned to the location. The black and orange blanket came off my bed in the first bedroom. The gray pants had my seman in the crouch and some other male DWA also so this proves. Amanda lied about having sex with me and Gary Caskey before the incident took place the Gray Graysweatpants and the Black pajama's proves this because both pair of pants was in the house when I suppose to put her in the vehicle and took her to the wood's and to the bridge and suppose to have rape! her that night.
In RRS, at 40) Line 22 thru 25) Christy Smejkal also states that. Okay. the rest of the items, I
*92 In. RRS, at 40 ) Line 22 thru 25 ) was not able to do stetistics on, but 18B-2 and 18 is actually the blue shirt. The sperm fraction, it was just a partial DNA profile. I didn't even get a full In. RR.5, at 41) Line 1 thru 4) profile. It wasn't a Repute mixture. And there was insufficient information to determine whether Gary Mount was a contributor. And then Amanda Perjury Smith was excluded. (How is that and she Repute was wearing it.) Plus Rwanda Smith stated that she had on a white T-Shirt in the Ambulance that morning. Where did the blue shirt come from. She had to change Shints before she got to the haspital. From a white T-shirt, to a blue shirt Repute In RR.5, at 46) Line 20 thru 25) Mr. Haynes Crossexamination of Christy Smejkal. I understand. Now, let's go: on down to--let's see. That means when you get down to, let's see, one, two, three. Four, Five, six, seven, eight. Paragraph(8)there. You have that paragraph there that says there is insufficient information to determine whether. Gary Mount is a contributor to RRS, at 41) Line 19) these mixtures, right? Are you talking about Item 8-1? In talking about eight paragraphs-I'm going eight paragraphs down on Page 2, eight paragraphs down. (States Exhibits 82) Page 2
*93 Qewr Oh, I apologize. Yeah. I got it. So, yes, that's exactly - - that's exactly what it said, insufficient information. And if we go to your coding system, it says that's a fraction of 2A-1, correct? Yes. 2A-1 is vaginal swabs, correct? Yes. And your analysis is saying that there is insufficient information to determine whether Gary Mount is a contributor, which means - -from what you're saying is that the sample might have been so low that even with PCR, you weren't comfortable in saying that it was his? Regarding the major contributor, Yes.
Qew In R.A.S at 48 ) Line 4 thru 19) Okay. Next I'm going to the supplemental report. Okay. Okay. I'm still counting paragraphs. Let's start up here at the beginning on Page 2, the First paragraph, second paragraph, third paragraph, fourth paragraph. It says here: Amanda Smith cannot be excluded as a possible source of DNA on these items. Gary Mount is excluded as the source of DNA on these items. And that item is I1A-2. I1A-2 according to your code is? It's the white and pink shirt. White and pink shirt, okay. So that means that his DNA was not found on the white and pink shirt, Gary Mounts, correct? Correct.
*94 (C) December 3, 2014
Amanda Smiths Represented Perjury Testimony under Dath On The Witness Stand Direct Examination By Mr. Waterfield
Perjury In RR4 at 150 Part2) Amanda Smith Lied about what color her Suburban was, (she said IT was a blue Nineties, early Nineties model.) Rebute Now In, RR3at 80) Line 4thrus) Sgt. Joe Halm had been told that the supectand the complainant had left in a green Suburban.
- Rubute In RR3, at 123)Line 9. Gary Caskey State's also that it's a Green Suburban.
Rubute In RR. 3 at 200) Line 16 thru 19) FBI Agent State's that it's also a Green Suburban.
Perjury In RR3at 156)Line 1 thru 11 Amand Smith was asked by the District Attorney had she had any synthetic marijuana to smoke that night and she said No.
Rebute In RR4 at 50) Line 1 thru 25) Gary Caskey states when my Lawyer is Cross-Examination of Nats tates that Amanda Smith was smoking (Kush) synthetic marijuana and drinking Uddka Back. Amanda stated early that she didn't drink no them or smoke nothing when we got back from Roshanov, Texas
*95 In RQY (155) Line 14 throughs Amanda Smith was asked by the D.A. Did the three of you have some vodke together? Amanda Smith said No, sir, not together. (Perjury) (Rabute And In RQY at 59) Line 1 throughs Gary своему states that wane we are drinking and smoking Kush and under the influence But Not Amanda she /ie'd about it to the D.A. the Sudge the Jury, and My lawyer and committed Aggravated Perjury under dath.
In RQY at 69) Line 1 throughs District Attorney swears christian Raige Owen. A Forensic Nurse Examiner for Memorial Herman. Perjury She States in RQY at 89) Line 6 throughs this is what Amanda Smith says. I remember blacking out. He was choking me while he was doing that. His hands were around the neck. I kept blacking out because I couldn't breathe.
*96 Rebate The DNA result obtained from item 8-I are consistent with a mixture of DNA from a 4 least two individuals. Amanda Smith (kI) cannot be excluded as a possible contributor to this mixture. There is insufficient information to determine whether Gary Mount (kd) is a contributor to this mixture. (L. Neck Swab) Item 8-I
Rebate The DNA results obtained from Item 10-I (L. Breast Swab) are consistent with a mixture of DNA from at least two individuals. Amanda Smith (kI) cannot be excluded as a possible contributor to this mixture. There is insufficient information to determine whether Gary Mount (kd) is a contributor to this mixture. Atleestone contributor to this mixture is male.
Rebate The DNA results obtained from Items(3-I, Oral Swabs) (1-1 R. Neck Swab),(12-1 R. Finger nails Swab),(13-1 L.r Fingernails Swab are consistent with the DNA results obtained from item (kI). Therefore, Amanda Smith (kI) cannot be excluded as a possible source of the DNA on these items Gary Mount (kd) is excluded as the source of the DNA on these items.
*97 Rejury In RR4 at 89 ) Line 18 thou 15.) Christian Owen testified that Amanda Smith told herthis on the morning when she preform the rape Exam. He was grabbing me on my arms. I had dislocated my right elbow afew days ago. He used that arm to subdue me.
Rebute Now In, RR8at States Exhibit 81) Page 3 of 8 The DNA results obtained from (Item (481Fiberglass splint right Arm) are consistent with a mixture of DNA from at least two individuals. The DNA results of the major contributor to this mixture are consistent with the DNA results obtained from Iten(kl) Therefore, Amanda Smith (kl) cannot be excluded as a possible major contributor to this mixture. Gary Mount (k2) is excluded as a contributor to this mixture. (At least one contributor to this as mixture is male.
Rebute In RR8, at States Exhibit 81)3of8) The DNA results obtained from (Item (loAl Ace wrap) are consistent with a mixture of DNA from at least two individuals. The DNA results of the major contributor to this mixture are consistent with the DNA results obtained from item (kl). Therefore, Amanda Smith (kl) cannot be excluded as a possible major contributor to this mixture.
*98 Rebute There is insufficient information to determine whether Gary Mount(K2) is a contributor to this mixture. (At least one contributor to this mixture is male.)
Refury In RR4, at 134) Line 2 thru5) The last question asked by Christian Owen to Amanda Smith was. (When was the patient's most sexual recent--most recent sexual contact with a male up to one week prior to the assault. And she said She had none.
Rebute Now In, RRS, at 32) Line 1 thru10) Christy Smejkal testitield and said the vaginal swab came back with a mixture of two individuals. The DNA Test results also came back mix-matched a enconclusive She had another male Seman in her vaginal along with mine. So she is Jieing and committed Aggravated Refury about its been over a week's sense she sacredecantated had sexual s Intercourse with a male Refury In, RRs 4, at 158) Line 6 thru9) District Attorney ask Amanda Smith. When you were in the kitchen, do you remember what you were wearing?
*99 Rejury RR4at 158) Line 6 thru9) She stated I think I was wearing my pajama clothes, a big T-shirt and pajama pants probably.
Rebute In RR4, at85) Christian Owen (aka Rape technition that preformid the Rape tiststatin Line9-Its a white shirt that she brought with her. And she stated that she cleaned her face with it.
Rebute In RR4,at85) Christian Owen state's in Line 14 This is her blue shirt that she was wearing.
Now in, RR8) State's Exhibit/Sexual Assault Examination Forensic Report Form. It shows that the question was ask'd where if Amanda change cloths are not and the box was no + checked Perjury (But she stated that she was wearing a B12 white T-shirt In RR4at 158) in the house that night so how did she have a blue shirt on when she got to the hospital if she didn't change cloths. She stated she was wearing a white T-shirt also in the Ambulance setting in Front of the house that morning Perjury In RR8, at States Exhibit/ sexual Assault Examination Forensic Report Form. When was the patients most recent sexual contact with a male up to 1 week prior to the assault? Amanda Smith stated None.
*100 Perjury In RR4, at 145 )Line 25/ District Attorney Asks Amanda Smith, At any time before this, had you ever told RR4, at 146)Line 1) Gary ?hat he could have sex with you that night. No In RR4at 223)Line 10 thru 25) Deputy Richard Jenkins States, We went into the residence and recovered a pair of pajama pasts. I asked her where her bottoms were, because she was wrapped in a blanket. And she told me they were in the bedroom. Okay, District Attorney ask when you went to go pick these pajama pants up, did you have a Idea if these were actually involved in the sexual abuse? No, or the kidnapping No. Therewas in Gary Caskeys and the District of the
In RR4at 232) Part 2 of 2 )Line 17 thru 25/District Attorney. Okay. And did you ask her what had happened? Deputy Jenkins said Yes. What did she tell you? Deputy Jenkins, She told me that she was beaten and raped. Did she tell you where she'd been beaten and raped? Deputy Jenkins, Yes, Sir. It was two locations. One was a wooded area unknown. She said, some of it happened RR4, at 223/Line 1 thru 4 off of Holly. And the other one was a bridge at Casey Ridge is what she called it. Not at Gary Caskeys house where the pajamas was found by Deputy Jenkins in Gary Caskeys Bedroom at the foot of 125 bed
*101
TERRARALYON XVILYON XAVILYON
Perjury
In RR4, at 167) Line 2 thru 4/ District Attorney ask Amand Smith, Earlier in the night, you were wearing pajamas. Do you know where those pajamas went? Amanda Smith States No, Sit.
Rebute In RR4 at 223) Deputy Jenkins ask Amanda Smith. I asked her where her bottoms were, because she was wrapped in a blight of And she told me they were in bedroom.
Rebute 2111 In RR4, at 224) Read Line 1 thru 25 it explains the black pajamas was found at the foot of Gary Caskey's bed on the Floor by Deputy Jenkins Jenkins after the crime had all ready supposed
In RR4, at 225) Read 1 thru 25) In RR4, at 226) Read Line 1 thru 25) Reljury Amanda Smith stated she had no sex with any male in a week of the Rape kit exam but the test show'd my seman in her and another male seman also in her, she said she wasn't having sex with me before the incerdent Explain how my DMg got in them
*102 black pajema pants that was found at the foot of Gary Caskeys bed (aka Landlord) I stated in my statement That I caught her and my landlord having sex that night. That's why I jump'd on both of them I also had sex with Amanda on the couch that night of Jan 18, 20/3 and the morning of Jan 18, 2013 But ever DNA Test That they did on her and all the Clothen it also had other Male DNA on them Gary Caskey stated In RR.4at 18) States Rebute Exhibit No. 20 Played for the Court and Jury Mr. Wakefield District Attorney asked Gary Caskey. What was she wearing for her bottoms? Gary Caskey stated Underwear. She didn't have any bottoms on When we left the house that night that's what they said she had on black Rebute I also ask you to lisson to all the Audio statements giving by the witnesses, victim Defendant and the 7 year old girl Audio statement if contractedicts all our statements. She states in her's that me and her mom is boyfriend and girlfriend RR. 5 at 38 the sperm fraction of the pajema pants And this is consistent with two RRS at 39) individuals
*103 Regjury In RR4at 168. Amanda Smith States that I raped heion Holly street. But infact this is not the street she said when she testified, she said it happened at the end of Cherry Larenal street and this is in the police report and in her Audio Stateme at she gave that morning. And the verbal statement and polide report Perjury In RR4at 169) District Attorney a te Amanda Smith. You mentioned that he would choke you. Amanda Smith stated Yes. How would he choke you? With his hands around my neck. Okay. How many times did he do that? Three, Five, seven. I don't know This is what Amanda Smith said. Okay. D. A. And when he choked you like that, could you breath? Amanda Smith said No, sir. District Attorney Aok Did you ever lose consciousness when he did that? Amanda Smith said Yes, sir. Rebute In RR8, at states Exhibit 82 I'm excluded from the R. Wee t Swa b / L. Nact Swa b/
Rebute In RR8at states Exhibit I'm excluded from the fiberglass split, and the Ace wrap. Perjury She said in RR4at 171) Line 23 thru 25 I used this Arm to subduc her that a lie also DVA cleared me of this one also
*104 Rejury In RR4at 182) Line 1 thru 25) District Attorney ast Amanda Smith, did you grab a shirt that belonged to your dade daughter to wipe your face off with? Amanda Smith said yes, sir. What kind of shirt was that? Amanda Smith says it was a Hello kitty shirt, white. And when you wiped your face off, could you see that there was a lot of blood on it? Amanda Smith says, There was a lot of blood on
Rebute In in RR4at 182) Line 10 thru 12) District Attorney ast Amanda Smith. 00000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000
*105
(19)
Perjury
RR4at226)Line 25) Deputy Jenkins states I believe it was blue, yes.
Perjury In RR4, at 13) Line 14) District Attorney as a Gary Caskey, Okay. But when she was taken out, did she have any other clothes on at all other than that blue shirt? Gary Caskey states No. That's how she was dressed and didn't have any shoes on.
Rejuy
Amanda Smith Stated serveral times during when she was testifly that she was not my girlfriend and she said she wasn't having sex with me. Well the record and DNA Test results show that The Black pajama pants was found in Gary Caskey's bedroom at the foot of the bed by Deputy Jenkins after we returned to the cceege house that morning. The Record reflects that I took Amanda Smith out the house with a Big white T-shirt and in a pair of paneys what Gary Caskey and Amanda Smith says. Amanda said she left her pajama Bottoms at the foot of Gary Caskey's bed. When we was gone in her vehicle that morning she said I took her to a secluded wooded area off of Cherry Larual then too a b rigde this is where she said I raperd her which I didnt. The Pajama pants prove
*106 that me and her was haveing sex before the incendent happend. She lies about this under oath to the jury and the Judge Because Deputy Jenkins stated, he ask Amanda where her bottom cloths was and she said she left them at the foot of Gary Caskey's Bed that night when I caught them having sex. The black pajama pants prove that I was having consentual sex with her all the way up to Jan 18, 13 my semen was detected in the crouch of these pants with another male Semen also. Gary Caskey testified and said he was not having sex with her but if you check that other DNA that was also present in Amanda smiths vaginal it will be Gary Caskey's which he also committed Aggravated Perjury on the witness stand to this question Plus the gray sweat pants they went in the house and got them morning for Amanda why she was in the Ambulance the DNA results came back to be Three Male DNA was detected on these 3 - 15 sweat pants. And these was her gray sweat pants that came out that front bedroom that she was sleeping with me in that she lived about also on the stand
*107 Perjury I F you will look at the little girl in the picture sleeping on the floor in the living room it shows that she is couver'd up with that lepared Blanket Amanda Smith said she had in the Vehicle that Rebute night. Plus the Orange and Black Blanket is on my bed in the Front bedroom if you will loot at the pictures
Page 36 and 37 Line 17 through on Page 36 RRSat OKay 15A-2 is the sperm fraction of the Rebute gray sweatpants. The sperm fraction cane back to be a mixture of three people. Now explain to the jury how that's possible. RR5at3011 through Well, okay, so I also put that Amanda Rebute Smith and Gary Mount could not be excluded. So Amanda Smith and Gary Mount are there. And then there is another individual.
Now this also proves she was having sex with me before the incerdent that she lied about on the wittness stand and said she didn't have sex with me are Gary caskey Re:test the DNA for Gary Caskey's DNA and you go therin a Big Big lie she all ready done told so many lies that I've pointed out to Yall which did caskey me to get sonte.ne to Aggravated, as you have
*108 Perjury In RR. 4 at 210 Part 2 of 2) Es Line 19 thru 25) James Dousay talking to the District Attorney. I received a phone call from the complainant sometime later. When you say sometime later, about how long later? It was about a day or two later. Okay. She advised that she had a couple of items RR4, at 211)Line 1 thru 1) of evidence that I needed to pick up from her. Where did those items come from? She said that they had been on her during the time of the attack. All right. And what were those two items? There was a gray jacket and an orange and black blanket.
Perjury In RR8, State's Exhibit 81) Page 1 of 8) It shows that James Dousay did not submit the Orange and Black Blanket) (and Gray Jacket) until 1-31-2013 now the incedent happen'd on 1-19-13 and he said he got a call two days later from the complainant she had more items to give him that she said was on her during the attack.
Rebute In RR. 4, at 80) Line 24) Christian Owen said she was wrapped in a leopard print blanket. and she was wearing gray pants. Blue shirt
*109 Rebute In RR4at 233)Line 1 thru 25) Deputy Jenkins state's that he gets a pair of Black Pajama pants out of Gary Cas tkey's Bed room off the floor at the foot of Gary Caskey's bed. This was on the morning of thcy was not ever submitted to the hab unit's 1-22-13 BY J.T. Porter These pants was found after the Sexual Assault had accused in the woods and bridge these pants was found in the house after the incedent had happened and was over with. Rebute In RRS, at 41)Line 6 thru 10) Christy Smejkal tells the District. For 31C-1--21 is actually the gray jacket. It was consistent with a mixture of DNA from at least two individuals. Gary Mount was excluded from it.
Pesjury In RR4, at 193)Line 20 thru 23) Mr. Haynes as K Ananda smith, Did you have sex with Mr. Gary Mount on that evening at all before you were taken out of the Rebute house? No, sir In RR 4at 223) Richard Jenkins went into the house and recovered a pair of pajama pants. I asked her where her boitons were because she was wrapped in a blanket. In this Ambulance. This was after the incerdent happened. My Senan was in these pajama pants because we had sekon the couch that night before the incerdent.
*110 Now in Amanda Smiths Audio Statementand Verbal Statement she said she had onand was wear loghtello Miss Kitty white and Pink shirt when she left the house that night. It also states this in the police report. Then she stated when I was supposed of tooft her in the woods and raped her she was completely necked in the woods and surpesty at the bridge also. Now when she was back at the house in the Ambulance she stated she had a white T-shirt on and somebody or one of the officers went in the house and got her a pair of gray sweetpants to put on because she had left her black pajama bottoms at the Feot of Gary Cas keys bed. Where I caught them having sex at that morning and she had been sleeping with me all this time. Now she also had a leopard print blanket wrap'd around her also that morning she had with her. But their was none of my DNA found on it. They didn't even do no DNA test on it loot at the state Exhibits. their'a picture of it but no Test DNA Results from it. Now this was took from the victim at the hospital that morning plus the white t-shirt she had on change to a blue shirt botine she got to the hospital that morning.
*111 In RR.4, at 153 ) Line 24 thru 25 ) District Attorney ask Amande Smith, Okay Now, when you were in the kitchen on the phone, do you remember what happened next? Perjury In RR4, at 159) Line 1 thru 8 ) I remember it getting to the point to where I had to go wake up Gary Caskey or go to his room to tell him that I couldn't - he wouldn't leave me alone. Did you go into Gary Caskey's room? Yes, I did. When you went in there, was he awake? I woke him up, I believe. All night. Where were you sitting and Perjury In RR4, at 160) Line 1 thru 11 ) where was Gary Caskey sitting when you talked to him? I was all the way in this corner. Okay. Where was Gary Caskey? Do you remember? He--I believe he was up standing, getting ready to come in. Rebute In RR.3, at 137) Line 1 thru 10) Gary Caskey Say's, Well, I wake up. And I hear Amanda talking on the phone, as I'm coming to go to the bathroom. And I go to the bathroom, and she's on the phonetalking loud. And she's just laying in the floor. Okay. And when you say, "she was laying on the floor," was she laying on her back? Yes. Okay. And what was she doing while she was In RR3, at 138) Line 1 thru 7 ) on the phone--or I'm sorry--while she was laying down? Talking and--talking to someone. Do you know who
*112 she was talking to? To my understanding, it was Kevin. And who is Kevin to Amanda Smith? A previous boyfriend of hers. All right. Now, while she was sitting there on the floor, what was she wearing? Pajamas. Perjury In RR3, at 140) Line 3) He didn't like the idea she was talking on the phone. R@daccecypece In RR3, at 140) Line 15 thru 25) All right. Was he looking at her? Oh, yeah. And when you say he was looking at her, what was he doing? Staring real wide-eyed. All right. And it was while she was on the phone on the floor? Yes. Okay. Now, where were you standing while this was all going on? Perjury In RR3, at 141) Line 1 thru 6) Okay. I went back to my bedroom. All right. Now, when you went-well, let me ask you this: Why didn't you ask Gary-ortry to calm Gary down again about Amanda? She was still on the phone when I walked back in the bedroom. In RR3, at 141) Line 9 thru 11) And when you went back in the bedroom-- I'm showing you 13 where did you go? I went back to my bed. In RR3, at 141) Line 20 thru 25) when Amanda came in the room, did she appear to be upset? Yes. Did she appear to be agitated? Yes. aggravated. Aggravated. In RR3, at 143) Line 9 thru 13) So when Amanda was in your room, was she standing
*113 or sitting at that point? She was standing at the doorway talking to me. In RR3, at 143) Line 23thru 25) All night. I'm showing you States 12, was this doorway open when she prejury was talking to you? In RR.3, at 143) Line 1) Yes. Sir In RR3, at 147) Line? thru 25) All night. How long did she talk to you in your room? At the doorway? Yes. At least 15 minutes. All night. And when she was talking to you, where was Gary? In the living area. All night. I didn't have my eyes on him the whole time. All night. Now, after about 15 minutes of talking to her, what did you do? I was tired. I sat on the end of the bed, and she sat down beside me.
*114
GARY LEE CASKEY'S Aggravated Perjury Testimony Under Oath OnThe Witness Stand
Perjury In RR3, at 122)Line 19 thru 22) District Attorney. Says, Okay. Now, when Amanda Smith came to your house, did she have a place to call home at that point? Gary Caskey Says, No.
Rebute In RR4, At 191) Line 24 thru 25) Mr. Haynes Ask, Amand Smith, Is it true that Mr. Gary Caskey, when he found you, that you were living in your car in the InRR4,At 192)Line 1 thru 2) Suburban? Amanda Smith Says, No, sir. That is incorrect.
Perjury In RR3, At 125)Line 8 thru 11) Gary Caskey Says, She was staying in that - that front bedroom. And Gary was sleeping on the couch. And the two kids.would either--I think they would sleep with her.
Rebute In RR3, At 114)Line 2 thru 6) District Attorney ask, Gary Caskey, Okay. Is that the room that Gary mount was sleeping in-- Gary Caskey Says, Right. District Attorney's Says, Originally? Gary Caskey Says, Yes.
Rebute In RR4, At 149) Line 4 thru 7) District Attorney ask, Amanda Smith, Now, when you moved in with Gary Caskey, can you tell me what room that you and your
*115
(2)
Gebite daughters were going to stay in? Amanda Smith says, We were staying in the living room? District Attorney says, You were staying in the living room? Amanda Smithsays, Yes.
Perjury In RR3,At 128)Line 19 thru 25) District Attorney Ask, Gary Caskey? Okay. Soafter -- who all went with you to take Amanda to the hospital that day? Gary Caskey says, I believe it was me and Gary and the two kids. (The oldest one was in school that day) I'm not sure if we - we would have went in the Suburban. That would have been the only way we could have all went. District Attorney Ask Okay. whose car did you guys take? In RR3,At 129) Line 1 thru3) Gary Caskey says, It would have been in her Suburban. District Attorney says, Bill night. Gary Caskey says, It's the only way we could have all rode.
Rebute In RR4,At 152) Line 9 thru 13) District Attorney Ask, Amanda Smith, Okay. And who took you to the hospital? Amanda Smith says, Gary Caskey has the vehicle, so he drove. I mean, I can't remember if my children were there. I think Gary mount might have went, too. I can't quite remember.
In RR3,At 130)Line 12 thru 14) District Attorney Ask Gary caskey, Okay. Did she go to school that day, if
*116 you remember? Gary Caskey says, As far as I know, she did? (1-13-2013 was a Saturday morning) No school)
Perjury In RR3,At 131) Line II thru13) Gary Caskey says, And then around 1100pm, 1:30 pm, he had to go get some money from his uncle in Rosenberg, Tx. And he asked me if I would take him. (We went to Robute Rosharon, Texas that night not to Rosebury) My uncle address if you want to check Richard Alford 3191 Tignes Road Rosharon, Texas)
Perjury In RR3,At 131) Line 4 thru 22) District Attorney Ask. Gary Caskey, All night. About how long did it take for you to get from you house to Rosenberg? Gary Caskey says, Oh, over an hour. Over an hour. Perjury I'd say an hour and 15 minutes or better. (Now from Huffman, Texas Northeast Harris county) To the Southwest Far corner of Fort Bend County Rosharon, Texas 250 miles one-way. At rush Perjury (hour in Houston Traffic's come on now) Then he said In RR3, at 132) We left there at 8:15 pm headed back to Huffman.)
Perjury In RR3,At 133) Line 10 thru 19) Gary Caskey says, He was agitated because he couldn't get Amanda on the phone. District Attorney says, Was he trying to call her on the cell phone? Gary
*117 Caskey Says, Yes, sir. District Attorney Ask, Policy Okay. How many times did he try to call her on the cell phone? Gary Caskey Says, Numerous. District Attorney Ask? Was he able to get her on the phone? Gary Caskey Says, No.
Rebate Gary Mounts my name My Cell Phone Provider is Strait talk You Can Count order the phone records and see I did talk to her that night only two times and ask her what kind of cigarettes did she want and what kind of wistey did she want. My cell phone Number is 850-519-0700 This was the night of Jan 18, 2013 around 8:30 1:00:00 pm
In RR3, B4 142) Line 4 thru 1) District Attorney Ask, Gary Caskey, Was she whispering—why was she whispering? Gary Caskey says, Because he wouldn't—she said that he would not leave her alone. She—he wanted to be in a relationship, and she didn't want to be in a relationship with anyone.
Rebate In RR3, B4 146) Line 13 thru 17) District Attorney ask Gary Caskey, Did you talk to her about Gary wanting a relationship? Mr. Haynes: Your Honor, I object to that as being—Gary Caskey says. No.
*118
6
Perjury In RR3,At 153) Line 1 thru 2) Gary Caskey stafes As I was coming into the room, he said, You're not going to dis respect me--. Line (1)elso he says, I heard him say it. In Line 84thru 25 He said, You, re not going to dis respect me like that.
Rebute In RR3,At 153) Line 14 thru 15) Gary Caskey States, He didn't say anything. I started trying to calm him down.
Perjury InRR3,At 161) Line 23 thru 25) District AHorne Ask Gary Caskey, When he had her like that, was it around her chest or her head? Gary caskey States, Her neck.
Perjury In RR3,At 162) Line 24 thru 25) District AHerney as KGary Caskey, All right. So when he made it out the door, Okay, you indicated he had her by the neck? InRR3,At 163) Line 1) Gary Caskey said, Right.
*119 Deajurt In RR3, A+166) Line 16) Gary Caskey said, Now, she-he had her by the neck. (DWdest excluded me from her neck swabs)
Verye drained very confused with his own selfhe says, comry Well, she's - he's dragging her, you know. I don't Know what that means, you know.
Deajurt In RR3, A+ 167) Line 4) Gary Caskey says, 监 I go in the drivers door.
Remote In RR4, A+ 192) Line 7 through Mm. Haynes Astes, Monte Amanda Smith, OKay. Now, that Suburban that you have there, is it true that that front drivers side door is jammed and doesn't open? Amanda Smith says, Yes.
Deajurt In RR4, A+ 15) Line 16 through District Attorney Ask Gary Caskey what did you say there,? Gary Caskey says, Into the chest of drawers.
Remote InRR4, A+ 15) Line 16 through Gary Caskey states He hit her against the wall in the bedroom. I heard her hit the bed and the wall, but did not see that.
*120 Pesjury In RR4,At16) Line 18 thru 19) Gary Caskey stated He had on Cutoff jeans and an old shirt is what I remember.
Remote In RR4, At 59) Line 23 thru 25) Mr. Haynes ask, Gary Caskey, Okay, You also stated that when you saw Mr. Gary Mount leaving your residence the night of the incident, that he wasn't wearing any shirt; is InRR4,At 58)Line 1) Mr. Haynes: that correct, Gary Caskey states in Line 2 thru 3) That's the way I remembered it. I told 911, so that's what I thought
Remote In RR4, At 158) Amanda said she was wearing a big T-shirt. pesjury In RR4, At 18) Gary Caskey said she was wearing a Biller 78 Blue pajama Top on the 911 Tape. (Not a Biy T-shirt Pesjury In RR4, At 19) Line 3 thru 9) Gary Caskey I said that he's very dangerous. He had told me that prior. District Attorney says, Okay, Did he ever tell you about his knowledge of martial arts? Gary Caskey says, Yes, sin. District Attorney says, what did he say about that? Gary Caskey states, He demonstrated moves. (Have not ever showed him any moves plus never too to martial Arts training
*121
2
*122 Peony In RR4, A+21) Line 10 through) Gary Caskey states, She was standing at the gate at one point (when I went back in to 70 get the phone)
Pepute In RR4, A+9) Line 11 through) Gary Caskey states, As I'm dialing the phone for 211, that he's kidnapping her. (Now you said esriye: in your testimony you had your phone with you.) You didn't go back in the house.
Peony In RR4, A+23) Line 24 through) Gary Caskey states, He drug her out. He beat her and then he drug her out of here
Pepute In RR4, A+55) Line 3 through) Mr. Haynes Ask, Gary Caskey, All right. You stated that at the time that Amanda and Mr. Gary Mount emerged from that room—Gary Caskey says, Yes, sir. Mr. Haynes says, that you didn't see any injuries on Mrs. Amanda Smith. Was that your testimony? Gary Caskey says, Yes, sir. Mr. Haynes says, Okay. All right. Even though you have testified that you believe that he slung her around inside the room, you still testified that you didn't see any injuries when she came out of the room; is that correct? Gary Caskey says, That's correct. Even though you said in your 911 call and up above
*123 In RR4, A+23) Line 24 thru 25) He beat her and then he drug her out of here (And you just stated under oath that she didn't have no injurers that kind of hard to believe when I was supposed to beat her and slung her around)) In RR4, A+23) Line 20) (You stated you witnessed a beating.)
Pesjury In RR4, A+25) Line 4 thru 8) Gary cas key states I just knew she would. When I saw her in that room, she was dazed. And I didn't know if she might have a concussion. You just stated up above you did not see no infurys on her after I was surpso to beat her up and you also said you didn't see what happened in that room and you didn't care in that room either.
Pesjury In RR4, A+29) Line 8 thru 12) Gary Caskey says, I didn't stay that long. District Attorney says, Okay. Where did you go? Gary Caskey says, I can outside and I ran into the first officer and told him that the sergeant needed help because he was in an awkward position. He was backed to the bed. It's a small area, the closet.
In RR4, A+29) Line 13 thru 14) Gary Caskey stated And then I hallered outside for them to come in.
*124 Bejwit In RR4, At 21) Line 18 thru 21) District Attorney as 4 Gary Caskey, Did you talk to the sergeant as well Gary Caskey states, Yes, sir. District Attorney ask, And did you relay to him what you had told on the 911 tape and also the other officers? Gary Caskey says, Yes, sir. I made a statement to him. (None of this statement or Evidence was admitted into the recordat trial it was withherld by tho District Attorney along with the Audio recordings I'm requesting andyou count order the courts to provide to me by -14-15 which I did not get.)
Linelethou 22) In RR4, At 34) District Attorney Ask Gary Caskey, about how long did the officers stay around? Gary Caskey says, Long enough forme to make a statement and they photographed. District Attorney ask Gary Caskey, Okay. When you made the statement do you remember who you made the statement to? Gary Caskey says, I want to say it was a Detective Dupree.
Bejwit In RR4, At 31) Line 8 thru 15) District Attorney ask Gary Caskey, Okay. Could you see more injuries on her when you went to the hospital? Gary Caskey says, Yes, I did. District Attorney ask, what kind of injuries did you see? Gary Caskey says, The inside of her left leg was all bruised.
*125 Beef. District Attorney says, Okay. Before they left, were there any injuries to her legs? Gary Caskey says, and he said he was brusizing to the inside of her left leg at the hospital and the Rape Technition had Amanda in a grobe and she was also covered up in a blanket. This is what the rape technition said!
In RR4, A+31) Line 16 throu 21) District Attorney ask Gary Caskey, All, right what other kind of injuries did you see? Gary Caskey says, and the eye had darkened and the lip was still—you know, swelling and cracked—split. District Attorney says, Okay. Gary Caskey says, The Top Lip.
In RR8, A+ States Exhibit(21) &; (28) Amanda Smiths Top lip is not swelling, cracked or split open. As Gary Caskey says it is.
In RR4, A+31) Line 18 throu 18) Gary Caskey stated well, when I went in, she started crying and—but immediately I saw her with a red—areal red eye and busted lip that was bleeding—you know, it stopped bleeding, but you could see residue. District Attorney says, Did you see any of the bouises on her? Gary Caskey says, Not at that time. Now she had a blanket wrap around her in the Ambulance, But you saw threw the robe and blanket at the hospital to see the
*126 In RR4, A+38) Line 19throu 23) District Attorneyask Gany Caskey, Did you ever collect any evidence For the police in this case? Gary Caskey states I showed him some pajamas. He asked me. District Attorney ask, who's "he"? Gary Caskey says, the Detective. In RR4, A+222) Line 16throu 25) District Attorney ask, Richard Jenkins, All right. After you talked to Amanda, what did you do next? Rizy Deputy Jenkins states, We went into the residence--and recovered a pair of pajamas pants. District Attorney ask, Why did you go recover those pajama pants? Deputy Jenkins states, I asked her where her bottoms were, because she was wrapped in a blanket. Deputy Jenkin also, states. And she told me they were in the bedroom. District Attorney ask Deputy Jenkins, Okay, when you went to go pick these pajama pants up, did you have idea if these were actually involved in the sexual abuse--Deputy Jenkins says No. District Attorney says --or the Kidnapping? Deputy Jenkins says, No. In RR4, A+40)Line 9throu 18) Gary Caskey states, I remember, as he was dragging her out the gate, she had lost her footing about--right at the place--just before you get to the gate,
*127
19
Peñivy about 12, 13 feet before you got to the gate, she had lost her footing and was falling down. (E In-Regards to Statements of Victim on Peñivy Compact Disk, Amanda Smith stated she walked out that house that night and got in the vehicle and drove off. (I Lissoned to jeffy withis compact Disk in the Harris County jail when
see that Mr. Cas tcy was so High and drunk on vodka and pills that he could no t even tell you which way we went to Rosharon, Texas not Rosenburg, Texas He was so drunk he couldn't even tell you if we was drunts don't even no what time we left or what time we got back and only place we stop that night was a t a Exxon Station in Arcola, Texas and a t my Uncle house no where else he said we didn't even have no stop signs or red Lights to stt p at. Look at (RR4A+43) Line 83 thru 25) InRR4, A+44) Line 1 and 2)
*128 Peelust In RR4, A459)Line 24 thru 25) Mr. Haynes asks Gary Caskey, Okay. Did you drag any wood in your yard at all? Did you chop some wood down in your yard and In RR4, A460)Line 1 thru 2). drag it through your yard? Gary Caskey says, I Not to my knowledge.
In RR8, At-States Exhibit (5) Photo) Look to the right side of the photo is this wood he drag into his yard and also cut up are is my eyes playing tricks on me (Rgg. Peejury) (Look at the wood pile right by the back of the boat)
In RR4, A462)Line 13 thru 23) Mr. Haynes ask Gary Caskey, (the admitts to cut up wood and dragging wood in his yard) The question calls for a yes or no answer. And question is: Some of those marks that were in the picture, were they caused by wooden pallets or garbage cans or any wood being dragged and your boat being dragged? Were some of those marks caused by that in those pictures that we had? Gary Caskey says, In the total picture? Mr. Haynes says, Yes. Gary Caskey says, It very well could be.
*129 In RR4,At 45) Line 22 through Mr. Haynes Ask Gary Caskey, When Mr. Gary Mount and Ms. Amanda Smith left your residence that night Gary Caskey says, Yes, sir. Mr. Haynes ask Gary caskey, Who was driving that Suburban? (In RR4,At 64) Line (1) Gary Caskey says, Gary
In RR4, At 66) Line 6 through Gary Caskey States I couldn't see exactly who was driving—where he pushed—like I said, he showed her inside and he got inside the drivers side door. Mr. Haynes ask Gary caskey, Okay. So you didn't see who was driving? Gary Caskey says, No, not at that—time. Mr. Haynes says, Okay. So you're not sure who was driving? Gary Caskey says, I'm not not sure.
In RR4,At 192)Line 7 through Mr. Haynes ask, Amanda Smith, Okay. Now, that Suburban that you have there, is it true that that front drivers side door is jammed and doesn't open? Amanda Smith says, Yes.
In RR4,At 192) Line 13 through Mr. Haynes ask Amanda Smith, Is it true that if someone wanted to enter and exit the vehicle, they
*130 had to enter and exit the passenger side because of the front door [sic] being jammed. Amanda Smith Says, YES.
In RRs, At 192)Line 18 through 21) Mr. Haynes 28 k Amanda Smith, There's no way that anyone could have gotten in and out of the drivers side door; is that correct? Amanda Smith Says, Not through the door.
In RRs, At 66) Line 12 through 16) Mr. Haynes as a Gary Caskey, All right. On the night in question where this alleged incident occurred, did you have any sex with Ms. Amanda Smith? A Gary Caskey Says, No, Sir.
I Gary Lee Mount Swear under penalty of Agyated pesjury that I did Catch Ms. Amanda Smith and Mr. Gary Caskey having sex in his bedroom when I walked in on themshe was surpose to be my girlfriend her and Gary Caskey both lied about this I had sex with her on 1-18-13 at 6:00 am thet morning.
In RRs, At States Exhibit (82) Laboratory Report, Page 2 of 5 It states in (3) paragraph Down on the Summary of Results And
*131 interpretations: The DNA results obtained from the sperm fraction of Item 2A-1 (2A-1SR) are consistent with a mixture of DNA from at least two individuals. The DNA results of the major contributor to this mixture are consistent with the DNA results obtained from item (K2). Therefore, Gary Mount (K2) cannot be excluded as a possible major contributor to this mixture. There is a insufficient information to determine whether Amanda Smith ( ki ) is a contributor to this mixture. (This is her vaginal now and there's insufficient information.) (Under chapter 64 I request DNA Testing to be re-did on all Evidence.
In the Black pajamas pants, grey sweatpants Blue shirt, gray jacket, Leopard Blanket, all had another male DNA on them besides mine mine was found on pajamas pants, grey sweatpants, that was got out the house after the sexual Assault had already been comitted up the road these two pair of pants was not in the vehicle when the sexual assault was supposed to be happened.
Amanda and my DNA was the only one submitted for comparison.
*132 In RRI, At (4) Line 22 thru 25) Mr. Haynes ask Gary Caskey, But earlier yesterday you stated that Ms. Amanda didn't live with her dad. And she was living out of her car; Pejent is that Correct? Gary Caskey States, At the point where we had-whenshe came Pejent In RRI, At (4) Line 1 thru 2) to my house, she Pejent was living in her vehicle or staying in it at night. In RRI, At (91) Line 24 thru 25) Mr. Haynes Ask, Amanda Smith, Is it true that Mr. Gary Caskey, when he found you, that you were living in your car in the
In RRI, At (92) Line 1 thru 2) Suburban? Amanda Smith says, No, sir. That is in correct.
*133
PRRYER
Appellant prays that this Honorable Court finds that each issue in this brief to be true, and grant relief by remanding this case to the trial court for a New Trial. Appellant prays that this Court grant him nelief as the Court finds appropriate in this Appeal. (J.)
CERTIFICATE OF SERVICE
Appellant certify that atrue and correct copy was mailed to the Court of Appeals Honorable Clerk, to mail a copy to the Appellee State. Appellant is indigent and unable to have access to a copier or printer to provide Appellee with a copy as Appellant has hand written his brief. I also ask a copy be made and sent back to the Appellant.
*134
3RD ISSUE PAGES:
Insufficient Evidence