Anderson, Rodney Young ( 2015 )

WR-82,828-01
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 6/11/2015 3:06:49 PM
Accepted 6/11/2015 3:56:19 PM
ABEL ACOSTA
Nos. WR-82, 828-01 CLERK
EX PARTE § IN THE TEXAS RECEIVED
COURT OF CRIMINAL APPEALS
RODNEY Y. ANDERSON § COURT OF CRIMINAL APPEALS
6/11/2015
TDCJ-ID # 01621165 § ABEL ACOSTA, CLERK
§ [Cause No. 09-07-07255-CR(1) in the
§ 359th Judicial District Court
§ Montgomery County, Texas]
APPLICANT’S REPLY TO STATE’S RESPONSE REGARDING
APPLICANT’S MOTION TO EXTEND TIME TO CONTINUE WRIT
HEARING AND COMPLY WITH ORDER ISSUED ON MARCH 25, 2015
TO THE HONORABLE JUDGES OF SAID COURT:
NOW COMES, Applicant, RODNEY Y. ANDERSON, who by and through
undersigned counsel, respectfully replies to the State’s Response to Applicant’s
Motion to Extend Time to Continue Writ Hearing and Comply with Order Issued
on March 25, 2015 and would show as follows:
Applicant seeks an extension of the time allowed in this Honorable Court’s
March 25, 2015 Order, not for delay but for good cause. Applicant’s requests a
sixty (60) - day extension to and including September 21, 2015. Applicant’s
evidentiary hearing began as scheduled on May 27, 2015. For reasons discussed
below and in Applicant’s Motion, the trial Court could not continue the hearing on
May 28, 2015 as previously scheduled. The hearing is currently scheduled to
continue on June 16, 2015. Applicant seeks the sixty (60) - day extension for the
same reasons previously outlined in his motion:
1. Undersigned counsel has the following professional conflicts:
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Counsel Cynthia Orr is the current chair of the American Bar Association’s
Criminal Justice Section. In that capacity, she is scheduled to attend the following
meetings and is unable to continue the hearing on June 16, 2015:
a. ABA’s Fighting Implicit Bias Committee Meeting scheduled on
June 8-10, 2015 in Philadelphia, PA;
b. ABA’s 2015 London Sessions scheduled on June 11-15, 2015 in
London, England; and
c. International Society for the Reform of Criminal Law scheduled on
June 21-25, 2015 in Edinburgh, Scotland.
2. Undersigned counsel has the following personal conflict:
Counsel Chris Griffith’s wife is scheduled to give birth to their first child on
June 19, 2015. Mrs. Griffith’s doctors, based upon prior examination, had
discussed inducing her on May 29, 2015, but following additional testing and
examinations that day, chose not to. Mrs. Griffith’s doctors have stated that they
will induce should she not deliver on June 19, 2015 but have also stated that there
is a significant possibility that she will deliver their child prior to that date. Mrs.
Griffith has scheduled appointments with her obstetrician through June 19, 2015.
As of this date, Mrs. Griffith has not given birth to their child.
3. Applicant’s witness and trial attorney, Chris Tritico, has judicial conflicts
throughout the month of June with limited availability, as does his counsel, Troy
McKinney.
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4. The trial Court has also informed undersigned counsel that it is not
available the week of June 29, 2015.
Applicant disagrees with the State’s opinion of and characterization of the
proceedings thus far. The evidentiary hearing began on May 27, 2015 as
scheduled. Applicant called Ms. Frances Madden, formerly a prosecutor on
Applicant’s case prior to trial. Amongst other things, Ms. Madden testified that she
had been given neither a copy nor the original agreement between the Montgomery
County Sheriff’s Department and Jeffery Harmon for Mr. Harmon’s services as an
informant. She also stated that she did not recall seeing the documents shown to
her purporting to be said agreement. This contradicted assertions by the trial
prosecutor and sworn statements at trial that Ms. Madden had been given the
original and only copy of an agreement with Mr. Harmon to be an informant.
Furthermore, that the State now asserts that the agreement was found in the
Sheriff’s Department’s files also contradicts these statements.
MR. FREYER: Yesterday the Court asked me, my being in the
best position to get a certain document, to produce a copy of the
written contract between the SI Unit and the confidential
informant.
This morning Mr. Womack informed me that he had provided
that to my predecessor, Frances Madden, sometime last year.
Well, I’m representing to this Court as an officer of this Court
and as a chief prosecutor in this court, my review of the file did
not reveal -- she lost it. It’s gone.
THE COURT: Okay. 5RR7.
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THE COURT: Okay. Tell me two things: First of all, was that
the only copy of the contract executed between SIU -- you gave
her the original; and you didn’t keep a copy, Mr. Womack?
MR. WOMACK: No, ma’am. 5RR8.
THE COURT: Okay. Let’s see. Detective Womack and Likens,
if you will stand and raise your right hands.
(WITNESSES SWORN)
THE COURT: Okay. Detective Womack, just a moment ago I
asked you if you retained a copy or if that was the original that
went to Ms. Madden in the DA’s office. And you told me that
you did not retain a copy. And that, in fact, she had the only
copy of that -- the original was the only version of that. Is that
still true and correct?
MR. WOMACK: That is correct. 5RR10.
Detective Womack purportedly organized and directed the police operation
that is at the heart of this case. He is also the individual who purportedly made the
agreement with Mr. Harmon as an informant and supervised him during the
operation. Ms. Madden also stated that she herself, as a prosecutor for
Montgomery County, had filed formal complaints against Caryn McAnarney for
filing false reports. Caryn McAnarney, at the time of the facts of this case, was
employed as CSI for the Montgomery Sheriff’s Department and collected much of
the evidence in this case including narcotics evidence. Ms. McAnarney was
terminated from the Sheriff’s Department prior to trial, in part, for failing to
perform testing she reported she had conducted and taking items from the property
room to her home.
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Trial defense attorney Chris Tritico would later testify that he was not told of
the extent of Ms. McAnarney’s involvement in this case including that she
reportedly collected narcotics evidence from the scene that seems to be different in
nature from that which was used at trial, was not told that she had been terminated
under circumstances that called her integrity into question, and was not told that
the District Attorney’s office had previously filed complaints against Ms.
McAnarney for making false reports. Mr. Tritico stated that he did not recall being
given Ms. McAnarney’s report of her investigation of the scene and what evidence
she had collected. He also stated he had not been told by prosecutors that Ms.
McAnarney had supposedly collected six white rocks of suspected
methamphetamine at the scene when the narcotics evidence he was aware of was in
powder form.
Applicant did call the records custodians for subpoenaed records on May 27,
with the trial Court’s suggestion, but disagrees with the State’s characterization of
these subpoenas. While the police operation at the heart of this case was conducted
by a unit of the Montgomery Sheriff’s Department, the individual officers and
federal agent involved in the actual operation and arrests were from numerous
agencies; the Montgomery Police Department, Conroe Police Department, Conroe
Independent School District Police Department, and Immigration and Customs
Enforcement.
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The initial statements from eyewitnesses Cory Brummett and Lindsey Paras,
which do not mention the officers wearing police attire or insignia, were taken on
Conroe Police Department forms, not Sheriff’s Department forms. Their
statements are directly relevant to the issue designated by this Court: “…whether
the State withheld material evidence of Anderson’s innocence by failing to disclose
that eyewitnesses had given statements at the scene in which they were unable to
identify the armed men rushing Applicant as law enforcement officers, tending to
show that Applicant and his co-defendant were not aware these men were law
enforcement.” As such, Applicant has cause to believe that further statements
were taken on forms from the individual officer’s departments and to subpoena
materials from the individual departments involved in this case.
Applicant also called Cory Brummett, now a Montgomery County Sheriff’s
deputy, to testify regarding his eyewitness statements. In the days leading up to the
hearing, Houston and the surrounding area, Montgomery County included, were
inundated by rainfall that caused severe flooding. Part of the consideration to call
the records custodians, all law enforcement officers, and Mr. Brummett to testify
early in the day was that these individuals were needed to respond to emergencies
caused by the flooding and it was unsure if they would be available later in the
proceedings due to their duties as law enforcement officers.
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During the course of the proceedings, the trial Court informed counsel that it
could not continue the hearing the next day, May 28, 2015, as previously
scheduled as it had to pick a jury for an upcoming trial. The trial Court suggested
the hearing be continued to May 29, 2015. Undersigned counsel both had
previously scheduled conflicts, as noted in Applicant’s Motion, on May 29, 2015.
Three witnesses, who were eyewitnesses to the incident at the heart of this case,
had conflicts that limited their availability to return for a later hearing date. As
such, counsel, out of an abundance of caution, called these witnesses and informed
the trial Court that attorney Chris Tritico was subject to being recalled. These three
eyewitnesses, including Lindsey Paras, recounted that they did not observe officers
wearing identifiable clothing or insignia during the incident and only saw such
after Applicant and his co-defendant had been arrested.
Mr. Tritico, in addition to the aforementioned statements, stated that he did
not recall being given the initial statements of eyewitnesses Cory Brummett or
Lindsey Paras that indicated that the officers were not wearing clothing or insignia
identifying them as law enforcement officers. Applicant plans to recall Mr. Tritico
to address additional matters regarding the issues designated by this Court.
Additionally, Mr. Tritico has not been denied access to his file as the State alleges.
Mr. Tritico does not have possession of his trial file, having given it to appellate
counsel following the trial. Undersigned counsel is still attempting to locate the
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file. Similarly, Ms. Frances Madden stated, that upon her recent review of the
State’s file in preparation for her testimony at the hearing, she was informed that
the State is missing the portion of their file that would contain the trial prosecutors’
notes regarding report and documents and pretrial proceedings.
Furthermore, Applicant did not choose not to call Ms. Andrea Kolski as
alleged by the State. Applicant had to cease questioning witnesses when the trial
Court informed counsel that it had a previously scheduled matter to attend to. In
fact, the trial Court kindly altered its scheduled duties so that Applicant could call
the three abovementioned eyewitnesses. Undersigned counsel understood that the
hearing would be continued so that other witnesses could be called, but now the
above conflicts present difficulty as to when this can occur.
WHEREFORE, PREMISES CONSIDERED, Applicant prays this
Honorable Court grant his motion and extend the time by sixty (60) days, to and
including September 21, 2015, so that the trial Court can continue the writ hearing,
prepare a supplemental transcript and supplemental findings of fact and
conclusions of law in order that it may comply with the Order issued on March 25,
2015.
Respectfully submitted:
CYNTHIA E. ORR
Bar No. 15313350
GOLDSTEIN, GOLDSTEIN & HILLEY
310 S. St. Mary’s St.
8
29th Fl. Tower Life Bldg.
San Antonio, Texas 78205
whitecollarlaw@gmail.com
210-226-1463 phone
210-226-8367 facsimile
CHRISTOPHER M. GRIFFITH
Bar No. 24069072
LAW OFFICE OF CHRISTOPHER M.
GRIFFITH
310 S. St. Mary’s St., Ste. 1215
San Antonio, Texas 78205
cmarkgriffith@gmail.com
210-229-1444 phone
210-229-1445 facsimile
By:_/s/Christopher M. Griffith____
CHRISTOPHER M. GRIFFITH
Attorneys for Applicant,
RODNEY Y. ANDERSON
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing motion has been
sent to Assistant District Attorney Bill Delmore, via e-mail,
bill.delmore@mctx.org,
as
a
participant
of
the
electronic
filing
system
-­‐
efiletexas.gov, on this the 11th day of June, 2015.
By:_/s/Christopher M. Griffith____
CHRISTOPHER M. GRIFFITH
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