Turner, Donald Allen ( 2017 )

z 7o-n
IN THE
COURT OF CRIMINAL APPEALS OF TEXAS
RIGINA
NO. PD-0870-17
DONALD ALLEN ITURNER, Appellant COURT OF CRIMINAL APPEALS
Vs OCT 20 2017
THE STATE OF TEXAS, Appellee, Deana Williamson, Cle rk
APPELLANT FILES HIS PETITION FOR
DISCRETIONARY REVIEW, TEXAS RULE OF APPELLATE PROCEDURE frfi*T> im
- -_ : : ^QF^L AppEALs
OCT 20 2W
Deana VW/Kamson, Clerk
ON APPEAL FROM THE DENIAL OF APPELLANT'S LEAVE TO AMEND
TRIAL COURT'S CERTIFICATION, RIGHT TO APPEAL. FROM THE COURT
OF APPEALS, ELEVENTH DISTRICT OF TEXAS, IN CAUSE NO. 11-17-00165-CR.
APPEAL FROM THE ,142nd DISTRICT COURT,
MIDLAND COUNTY, TEXAS. CAUSE NO. CRA-16,002
Submitted By:
Donald Allen Turner, TDC # 1248114
3 Jester Road
Richmond, Texas 77406
IDENTITY OF PARTIES
Appellant,
Donald Allen Turner
Jester III Unit--TDC# 1248114
3 Jester Road
Richmond, Texas 77406
Attorney for Appellant,
Paul Williams
Williams & Kirk
303 W. Wall, Street, Ste. #417. N.C.N.B. Bldg,
Midland, Texas 79701
Assistant District Attorneys,
Windel M. Gibson
Ms. Robin Sams
Official Court Reporter,
Jerry Shorts
142nd Judicial District Court
P.O. Box 1922
Midland, Texas 79702
Judge Presiding,
Honorable Pat M. Baskin
Honorable George D. Gilles
200 W. Wall, Suite # 301
Midland, Texas 79701
TABLE OF CONTENTS
IDENTIFICATION OF THE PARTIES i
TABLE OF CONTENTS ii
INDEX OF AUTHORTIES iii
STATEMENT REGARDING ORAL ARGUMENT iv
STATEMENT OF THE CASE v
GROUNDS FOR REVIEW vii
ARGUMENT ,Pgs. .1-8
PRAYER FOR RELIEF. ... .viii
APPENDIX ix
QUESTIONS AND GROUNDS FOR REVIEW:
IS THE SUBSUMPTION THEORY OF Patterson v. State, STILL VALID IN
LIGHT OF THIS COURT'S MORE RECENT CASE LAW?
WHENIScA COLLATERAL ESTOPPEL CLAIM BASED ON DOUBLE JEOPARDY PRINCIPLES?
GROUNDS:
ONE: TRIAL COUNSEL WAS INEFFECTIVE AT PRETRIAL—WHERE HE FAILED TO
QUASH INDICTMENT, BASED. ON DOUBLE-JEOPARDY GROUNDS.IN THE 142
nd DISTRICT COURT. IN CASE NO. CRA-16,002. MIDLAND COUNTY,TEXAS.
TWO: TRIAL COUNSELS FAILURE TO INVESTIGATE—WHERE THIS CASE FALLS
UNDER "ELEMENTS" ANALYSIS, AND "UNITS" ANALYSIS.
THREE: TRIAL COUNSEL'S FAILURE TO INVESTIGATE—WHERE APPELLANT FALLS
UNDER THE "MERGER DOCTRINE',' -: "THE SINGLE IMPULSE DOCTRINE','OR
HERE IN TEXAS, "THE DOCTRINE OF SUBSUMED ACTS".
FOUR: TRIAL COUNSEL'S FAILURE TO REQUIRE THE STATE TO ELECT, WHEN
THE STATE HANDED DOWN A TEN-COUNT INDICTMENT.
FIVE: TRIAL COUNSEL WAS INEFFECTIVE AT PRETRIAL, AND AT SENTENCING
PHASE—WHERE HE FAILED TO INVESTIGATE THE ELIGIBILITY OF PRIOR
CONVICTION FOR ENHANCEMENT PURPOSES. IN THE 243rd DISTRICT
COURT, IN CASE NO. 20030D03096. EL PASO COUNTY, TEXAS.
COLLATERAL ESTOPPEL-DOUBLE JEOPARDY CLAIM.
ii
INDEX OF AUTHORITIES
Aekins v. State, 447 S.W.3d 270, 285 (Tex. Crim. App. 2014)Pg.l3
Appendi v. New Jersey, 580 U.S. at 466 (2000) Pag£, 8
Ashe v. Swenson, 397 U.S. 436, 443, 25 L. Ed. 2d 469, .9,0vS:.Cti 118,9
(1970) v .Page7?78
Blockburger i w.. United States, 284 U.S. 299, 304, 52 S. Ct. 180,
76 L. Ed. 306 (1932) ^.Page, 1-2.-3
Carmell v. Texas, 120 S. Ct. at 1620 (2000) Page, 6
Ex parte Amador, 326 S.W.3d 202, 206 n.5 (Tex. Crim. App.2014),1
Ex parte Watkins, 52 S.W.3d 858, 2001 (Tex. Crim. App.) LEXIS
3821 (Forth Worth, 2001); Reporter, 73 S.W.3d 264; 2002, (Tex.-
Crim. App. LEXIS 70*) Page,7-8
Garfias v. State, 424 S.W.3d 54, 58. (Tex. Crim. App. 2014)..Pg>l-4
Goodbread, 967S.W. 2d at 860 Page ,3
Harvey v. State, 367 S.W.3d 513, 515 (Tex. App:. Texarkana, 2012,
pet. refvd) Page ,2
Hawkins, 6 S.W. 3d at 557 n. 8 Page,3
Loving v. State, 401 S.W.3d 642, 645-46 (Tex. Crim. App. 2013),4
Luna v. State, 493 S.W.2d 854 (Tex. Crim. App. 1973) Page,3
People v. Henderson, 810 P.2d 1058, 1060 (Colo. 1991) Page,3
Phillips, 193 S.W.3d at 909 Page,5
State v. Lee, 15 S.W.3d 921, 929 (Tex. Crim. App. 2000)...Page,8
447 S.W.3d at 270 (Tex. Crim. App. 2014) Page,l
461 S.W.3d at 144 (Tex. Crim. App. 2015) Page, 3
STATUTES
TRAP 2 21.11(a)(1), (a)(2) Art. 38.07
TRAP 66.3(a),(f) 22.021(a)(1)(B)
TRAP 68 21.11 (a)(1)
TRAP 68.3(a) 21.01(2)
TRAP 44.2(a),(b)
TRAP 25.2(f)
TRAP 37.1
TRAP 27.1 and 25.2(e), 10.5(a), (b)
in
STATEMENT REGARDING
f
ORAL ARGUMENT
Appellant does not requests oral argument. Pursuant to Texas Rules
of Appellate Procedure,39.
IV
STATEMENT OF CASE
Appellant was indicted in the 142nd District Court of Midland County,
Texas, on June 8th, 1989, in Case No. CRA-15,796. On a Ten (10) count
indictment, charging aggravated sexual assault of a child. Jury was
seated and sworn in--the Midland County Jury Verdict (Hung Jury).
The State of Texas re-indicted defendant in the 142nd District. Court
of Midland County, Texas. On August 23rd, 1989, in Case No. CRA-16,002,
on another Ten (10) count indictment, using some of the same names in
the first indictment after [he was aquitted] of the first indictment.
The State; offered defendant Ten (10) years deferred adjudication,the
defendant accepted the Probation. On October 1993, defendant violated
after-serving Four (4) years—the State filed Motion to adjudicated,
the State's recommended Fifteen (15) years TDC. Appellant was released
under [Mandatory Supervision law] after serving Six (6) years.
Appellant was then relocated after making parole to El Paso County,
Texas..Where he violated his parole. Appellant was charged in a Two
(2) count indictment on March 7th, 2003. Under TEX. PEN. CODE §§21.11
(a)(1), 22.021(a)(l)(ii), indecency with a child by contact aggravated
sexual assault, in the 243rd District Court of El Paso County, Texas.
In Cause No. 20030003096.Where the 243rd District Court handed down
a life sentence,on May 24th, 2004. (RR, Vol. 6 of 10).
v,
STATEMENT OF QUESTIONS
ONE: WHEN IS A COLLATERAL ESTOPPEL CLAIM BASED ON DOUBLE JEOPARDY
PRINCIPLES?
TWO: IS THE SUBSUMPTION THEORY OF PATTERSON v. STATE, STILL VALID
IN LIGHT OF THIS COURT'S MORE RECENT CASE LAW?
THREE: DOES APPELLANT FALL UNDER TEX. CODE OF CRIM. PROC. ANN. Art,
38.07, BEFORE ITS AMENDMENT ON SEPT. 1ST,1993?
(defendant cannot be convicted on testimony alone), AS IN
CARMELL v. TEXAS, 120 S. Ct. 1620 (2000).
Vll
STATEMENT OF PROCEDURAL HISTORY
The Court of Appeals, Eleventh District of Texas, issued its order
on June 16th, 2017.In Case No. 11-17-00165-CR; Trial Court No. CRA-
16,002. Styled: Donald Allen Turner v. The State of Texas.
We have this day received and filed a copy of Appellant's Pro Se
Notice of Appeal and the Trial Court Information from ihsthe above
cause. We note that the Notice of Appeal appears to be -untimely filed
in the trial court. The date due was December 30, 1993. Tex. R.APP.
26.2. The sentence was imposed on November 3, 1993; and the Notice
of Appeal was filed on June 15, 2017, 23 years and 197 days after .
the date that the sentence was imposed. Appellant is requested to
respond on or before July 3, 2017, showing grounds for continuing
this appeal, which may include proof of mailing. Absent a timely filed
Notice of Appeal, this appeal may be dismissed for want of jurisdict
ion. Tex. R. APP. 25.2.
On June 30th, 2017, this Court issued its order in the above case,
we have this day received and filed "Appellant's First Request to
Extend Time to File his Response—Pursuant to TRAP 10.5(a),(b) in
the above cause.We will advise you of the Court's action on this
motion.
On July 3rd, 2017, the Court issued its order in the above case, we
have this day received and filed Applant's Pro Se response showing
grounds to continue this appeal in the above cause. Enclosed, Mr.
Turner will find his original exhibit documents.
On July 13th, 2017, the Court issued its order in the above cause.
The Court has this day DISMISSED the appeal in the above cause.
Copies of the Court's opinion and judgment are attached. Appellant
is advised that a Petition for Discretionary Review may be filed
with the Clerk, Court of Criminal Appeals, Austin, Texas. No copy
is required for the Eleventh Court of Appeals.
On July 17th, 2017, the Court issued its order in the above cause.
We have this day received and filed "Appellant Seeking Leave to Amend
Certification of his right to appeal. TRAP 25.2(f), 25.2(e), 27.1,
(Motion for Rehearing) in the above cause.We will advise you of the
Vll
Court's action on this motion.
On July 27th, 207, the Court issued its order in the above cause.
The Court has this day DENIED "Appellant seeking leave to amend
certification of his right to appeal. TRAP 25.2(f), 25.2(e),37.1'
(Motion for Rehearing) in the above cause.
The Court has also this day DENIED Appellant's pro se amended motion
for rehearing in the above cause.
If either party wishes to file a Petition for Discretionary Review,
please note:
1) Pursuant to Tex. R. APP. P. 68.3(a), the petition and all copies
of the petition must be filed with the Clerk of the Court of Crim
inal Appeals; and
2) Pursuant to Tex. R. APP. P. 68.4(j), a copy of this Court's opin
ion must be attached to each copy of the Petition for Discretionary
Review.
The ELEVENTH COURT OF APPEALS, issued its memorandum opinion in the
above Cause on July 13th, 2017. Attached in appendix.
* ****** *
The Court of Appeals for the Eighth District of Texas, issued its
opinion on April 26th, 2017, in Cause No. 08-17-00063-CR: From the
Trial Court Case No. 20030D03096; Styled: Donald Turner.
v.
The State of Texas
The Honorable Court of Appeals today rendered judgment dismissing
the appeal, in accordance with the opinion of this Court. A copy
of the opinion and judgment has been mailed to the attorney - of
record for each party.
On April;26th,- 2017*7 the Court .issued, its Judgment ih-thesabove- case,
styled and numbered cause to the trial court.
On April 26th, 2017, the Court stated in its Judgment, the Court has
considered this cause on the record and concludes the appeal should
be dismissed for lack of jurisdiction, in accordance with the opinion
of this Court. We therefore dismiss the appealr
Vll
1 The Court of Appeals for the Eighth District;of Texas, issued its Memorandum
Opinion in Cause No. 08-17-00063-CR; El Paso County, Texas. April 26th, 2017.
See Memorandum Opinion in appendex.
On August 21st, 2017, the Eighth District of Texas, issued its
MANDATE in the above numbered and styled cause. See Appendix.
Vll
MEMORANDUM OF LAW
In Texas, as in many, other jurisdictions, a defendant may not be
convicted for a completed sexual assault by penetration and also
for conduct (such as exposure or contact) that is demonstrably and
inextricably part of that single sexual assault. With these guiding
principles in mind, we turn to the double-jeopardy issue in this
case. The Fifth Amendment provides, "No person shall...be subject
for.the same offence to be twice put in jeopardy of life or limb[.]
In North Carolina v. Pearce, the Supreme Court stated that the
guarantee against double jeopardy consists of three separate Const
itutional protections; first, it protects against a second prosecu
tion for the same offense after acquittal; second, it protects against
a second prosecution for the same offense after conviction; and third,!
it protects against multiple punishments for the same offense.
A multiple punishment double-jeopardy violation may arise either in
the context of lesser-included offense (when the same conduct is
punished under both a greater and a lesser-included statutory ofense)
or when the same criminal act is punished under two distinct statutory
provisions, but the legislature intended only one punishment. Block-
berger, 284 U.S. at 304; Ex parte Amador, 326 S.W.3d 202, 206 n.5,
(Tex. Crim. App. 2010).
A double-jeopardy violation occurs if one is convicted or punished
for two or more offenses that are the same both in law and in fact.
Id. Garfias v. State, 424 S.W.j3d 54, 58 (Tex.;Crim. App. 2014).See
Blockburger v. United States, 284 U.S. 299,-304, 52 S. Ct. 180, 76 L..
Ed. 306 (1932). 447 S.W.3d 270 (Tex. Crim. App. 2014)."In a jury trial
MEMORANDUM OF LAW, IN SUPPORT OF PETITION FOR DISCRETIONARY REVIEW-Page 1
On appeal from the 142nd District Court, Midland County, Texas
On appeal from the 243rd District Court, El Paso County, Texas (sentencing phase).
the empaneling and swearing of the jury panel is the point at which
jeopardy attaches. In a bench trial, jeopardy attaches when the def
endant pleads to the charging instrument and the court accepts the
plea". Harvey v. State, 367 S,W, 3d 513, 515 (Tex. App. Texarkana ,
2012, pet. ref'd).
The question here is whether Ten-Counts of Appellant's convictions
for indecency with a child are the same, for double-jeopardy purposes,
as Ten of his convictions for aggravated sexual assault of a child.
In the double-jeopardy context, there are two different analysis for
determining the "sameness" of offenses: an;: "elements" analysis and a
"units" analysis. When the offenses at issue are codified in two
distint statutory provisions, the offenses must be considered the same
under both analysis for a double-jeopardy violation to occur.
The offenses at issues in this case, are the same under the "elements"
analysis, they are also the same under the "units" analysis, the of
fenses are considered the same for double-jeopardy violation.
ELEMENTS
The Court held that the offenses of indecency with a child and agg
ravated sexual assault of a child are the same under an elements
analysis, and a units analysis.Appellant's claim,therefore succeeds
on this aspect of the double-jeopardy analysis. Blockberger v. U.S.
284 U.S. 299, 52 S. Ct. 180, 176 L. Ed. 306 (1932).
UNITS
A "units" analysis consists of two parts: (1) what the allowable unit
of prosecution is, and (2) how many units have been shown. The first.:
part of the analysis is purely a question of statutory construction
and generally requires ascertaining the focus or gravamen of the of
fense. The second part requires an examination of the trial record,
MEMORANDUM OF LAW, IN SUPPORT OF PETITION FOR DISCRETIONARY REVIEW-Page 2
which can include the evidence presented at trial. (Outcry State--
ments, "Same Day" April 16th, 1989).
District Attorney first indictment, had included only "initial's"
in the Ten-counts based on different days, (hung jury).
The State's reindictment of the "Same Complainants", with their
real names—again different dates, even though the sworn "Outcry
Statements were based on the same date. April 16th, 1989.These dis
crete acts occured on the same day (April 16th, 1989), and are the
same, therefore, constitutingLonlylQne.'.allowable:unitsrof prosecution^.
1 "[T]he Blockerburger test saet up a presumption in a multiple-statute elements
inquiry...If offenses under different statutes all the 'same' elemtally, then;a
units analysis could be appropriate if, the pleading or the evidence indicates
2
that there are different victims").
2 Blockerburger, 284 U.S. at 303; Hawkins, 6 S.W. 3d at 557 n. 8 (discussing Block-
burger and units of prosecution); Goodbread, 967 S.W.2d at 860 ("For Double
Jeopardy purposes, the same offense means the identical criminal act, not the
same offense by name...When one cannot determine from the State's pleadings,
whether the offenses prosecuted are the same, the court must look to the proof
offered at trial".) (citing and quoting favorably from Luna v. State, 493 S.W.2d
854 (Tex. Crim. App. 1973)); id. at 861 (we look to evidence at trial to deter
mine what instances of conforming to the indictment are jeopardy-barred); Aekins
v. State, 447 S.W.3d 270, 285 (Tex. Crim. App. 2014); quoting 461 S.W.3d at
144 (Tex. Crim. App. 2015).
The first, less famous, Blockberger test asks whether each criminal
act is a separate and distinct one, separated by time. If the offense
is a single continuous act, with a single impluse, in which several
different statutory provisions are necessarily violated along that
continuum, the offenses merge together.("The purpose of merger is to
avoid double punishment for a single wrongdoing".);. People v. Henderson,
MEMORANDUM OF LAW, IN SUPPORT OF PETITION FOR DISCRETIONARY REVIEW-Page 3
810 P.2d 1058, 1060 (Colo. 1991)(analysis of whether convictions
should be merged must be based on double-jeopardy principles).See
Garfias, 424 S.W.3d at 58. ("a "units" analysis is employed when
the offenses are alternative means of committing the same offense*);,
Loving v. State, 401 S.W.3d 642, 645-46 (Tex. Crim. App. 2013).
This is variously called "TheMerger Doctrine',' "The Single Impluse
Doctrine", or here in Texas, "The Doctrine of Subsumed Acts". If
more than one statutory offense is necessarily committed by that
single criminal act and impluse, then the offense merge and the
defendant may be punished only once. This "Single Impluse" aspect
of Blockburger is United States Supreme Court Law, not some pecu-
laiar doctrine thought up by Texas Judges. We are not permitted to
ignore or denigrate it. As a lower court, we are bound by Supreme
Court reasoning on Federal Constitutional issues, id.
447 S.W.3d 270 (Tex. Crim. App. 2014). Though portions of : the
record of the prior trial may indicate that the State "focused" on
the first and last incidents of penetration and that, if forced to
elect, it probally would have picked these two incidents, the record
nevertheless reflects that the jury was still authorized to convict
appellant based on the other incidents of penetration. It is imposs
ible to determine with any certainty which specific incidents of
penetration that the jury actually was uncertain (Mistrial) and could
not decide in the prior trial, it did not do so with the required
specificity. If, as in this case, a reviewing court finds itself in
the position of having to guess whether the State made an election,
then it should decide that there was no election. Tex. R. App. Proc.
33.1(a)(1)(A)(prerequisite for presenting complaint for appellate
review requires party to make timely request with sufficient specificity
MEMORANDUM OF LAW, IN SUPPORT OF PETITION FOR DISCRETIONARY REVIEW-Page 4
to make trial court aware of the request). There were no election
in prior trial. The jury was (hung), whether the prior prosecutor
was vindictive, at the least, in losing this case, and that this
type of case that requires this Court to quite simply, grant the
PDR, because themanner and means are the same, time period is the
same (April 16th, 1989), even though the ADA had stated different
dates, the evidence (Outcry Statements state April 16th, 1989).
In this case, appellant's counsel did not demand an election in
the prior trial, or the second trial, at the close of the State's
evidence, or at any other time. Phillips, 193 S.W. 3d at 909. See
Tex. R. App. Proc. 44.2(a), (b).
THE GRAND JURY'S INDICTMENT:
By a Ten-Count indictment, a Midland County grand jury ~".:eharged
appellant with indecency with a child by contact, indecency with a
by exposer, and aggravated sexual assault. TEX. PEN. CODE 21.11(a)
(1), (a)(2) (Vernon 2003) & 22.021(a)(1)(B). 3xxhe':Bth\ 11989.
., The, State RE-.INDICTMENT HANDED DOWN 0N,August .23rd^l989:+_ on another
Ten-Count charging defendant with the "Same" counts. "Same" names,
and "same" idates . Indictments attached^::See Appendix.
Furthermore, In 1989, appellant was convicted on 10 counts of com
mitting sexual offenses in the summer of 1989. Before September 1,
1993, Tex. Code Crim. Proc. Ann. Art. 38.07, specified that a victim's
testimony about a sexual offense could not support a conviction unless
corroborated by other evidence[or the victim informed another person
of the offense within six months of its occurrence, but that, if a
victim was under 14 at the time of the offense, the victim testimony
alone could support a conviction. An amendment to a Texas statute that
went into effect on September 1, 1993, authorized conviction of certain
MEMORANDUM OF LAW;, IN SUPPORT OF PETITION FOR DISCRETIONARY REVIEW-Page 5
sexual offenses on the victim's testimony alone. Carmell v. Texas,
120 S. Ct. 1620 (2000).
Finally, appellant was charged with indecency with a child, in a
i:
two-count indictment, when he violated his parole in 2003, the
GRANT JURORS for the County of El Paso, State of Texas, in Case No.
20030D03096; In the 243rd District .Court. Tex. Pen. Code 21.11(a)(1)..;
COUNT ONE—Touching part of Gentials. Tex. Pen. Code 21.01(2).
COUNT TWO—Touching Breast. Tex. Pen. Code 221.01(2).
Trial counsel was ineffective at sentencing phase, or here as the
record states, Judge's Conference. Held on May 24th, 2004; Stated in
(RR Vol. 6, Pg. 5). States
THE COURT: Is there a recommendation on this?
THE STATE: Yes, Your Honor. Its 10 years TDC.
Mr. UNDERWOOD: ADA, The last recommendation was 10 years to do.
THE COURT: What's your recommendation today?
Mr. UNDERWOOD: ADA, 15 years.
THE COURT: ALL RIGHT. 15 years to do.
Mr. REY: Counsel for defendant, ask your client, on the record,
whether or not he's interested in the recommendation of
15 years to do.
Mr. REY: OKay.
Mr. Turner, the State of Texas has proposed a recommendation of
punishment. In exchange for your plea of guilty to
this charge, its 15 years TDC. Would you willing to
accept that, or you declining that offer. (:RR Vol. 6;-Pg»J)lr.
THE DEFENDANT: One would have to be guilty of something. I'm not
guilty at all.
THE COURT: ALL RIGHT. Are there any motions we need to hear, Mr.
REY.
MR. REY: I HAVE A LIMINE MOTION.
MEMORANDUM OF LAW, IN SUPPORT OF PETITION FOR DISCRETIONARY REVIEW-Page 6
THE COURT: HOW LONG IS THE LIMINE MOTION?
MR. REY: IT'S JUST ABOUT EXTRANEOUSES, JUDGE, AND THE FACT HE'S ON
PAROLE THAT I WANT LIMINED OUT.
On May 25th, 2004, the 243rd District Court of El Paso County, Texas
found defendant guilty, and sentencing him to life.
Appellant argues that the sentencing range on his two-count indict
ment carried a sentencing range of 2-20 years. The Cdurt found his
priors to be true—and enhancement his punishment.
Other than the fact of a prior conviction,-any fact that increases
the penalty for a crime beyond the prescribed statutory maximum must
be submitted to a jury, and proved beyond a reasonable doubt. With
that exception, it is unconstitutional for a legislature to remove
from the jury the assessment ofifacts that increase the prescribed
range of penalties to which a criminal defendant is exposed. It is
equally clear that such facts must be established by proof beyond a
reasonable doubt. Ex parte Watkins, 52 S.W.3d 858, 2001 (Tex. Crim.
App. LEXIS 3821 (Fort Worth 2001). Reporter; 73 S.W.3d 264*; 2002,
Tex. Crim. App. LEXIS 70**.
The doctrine of collateral estoppel is embodied within the const
itutional bar against double jeopardy. But the two are not identical.
Double Jeopardy bars any retrial of a criminal offense. While col
lateral•estoppel bars any retrial of specific and discrete facts
that have been fully and fairly adjudicated. Ashe v. Swenson,397 U.S.
436, 443, 25 L. Ed. 2d 469, 90 S. Ct. 1189 (1970).
The rights conferred on a criminal accused by the Double Jeopardy
Clause would be significantly undermined if appellate review of
double jeopardy claims were postponed until after conviction and
sentence. To be sure, the Double Jeopardy Clause protects against
MEMORANDUM OF LAW, IN SUPPORT OF PETITION FOR DISCRETIONARY REVIEW-Page 7 .
being twice convicted for the same crime, and that aspect of the
right can be fully vindicated on appeal following final judgment.
However, the Double Jeopardy Cliause protects an individual against
more than being subjected to double punishments. It is a guarantee
against being twice put to trial for the same offense. Ashe,397 U.S,
at 443; State v. Lee, 15 S.W.3d 921, 929 (Tex. Crim. App. 2000).
A collateral estoppel claim is based on double jeopardy principles
when the State could, but declines to, join two or more offenses
which arise out of a single transaction and a final verdict or spec
ific factual finding favorable to the defendant in the first prose
cution would bar relitigation of the same fact in a second proceeds
ing. Ex parte Watkins, 52 S.W.3d 858 (Tex. App. Fort Worth 2001);
Apprendi v. New Jersey, 530 U.S. at 466 (2000).
Rejipectfully Submitted,
CZ>*f? Ad&i
:es/Donald Allen Turner
MEMORANDUM OF LAW, IN SUPPORT OF PETITION FOR DISCRETIONARY REVIEW-Page 8
Donald Allen Turner v. The State of Texas, In Cause No. PD-0870-17.
Under T.R.A.P. 68., On Appeal from the 142nd District Court, No. CRA-16,002.
Appeal from Eleventh District of Texa's., In Cause No. 11-17-00165-CR.
PRAYER FOR RELIEF
W PURSUANT TO RULE 38.1(i) TEXAS RULES OF APPELLATE PROCEDURE
WHEREFORE, PREMISES CONSIDERED, Appellant prays this Court find
that Appellant was not afforded effective assistance of counsel.
Upon said finding, Appellant respectfully requests the Court to
reverse the judgment and remand this case for a new trial.
Appellant prays in the alternative, this Court find that the in
dictments were void, when the trial court enhanced defendant sent
ence to life at punishment constituted reversible error. Upon
said finding, Appellant respectfully requests the Court to reverse
in part and remand for a new trial on punishment.
Respectfully Submitted^
--fenald'MlJenTurner *
TDC# 1248114,
Jester III Unit,
3 Jester Road,
Richmond, Texas 77406
vm
APPENDIX
COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
OPINIONS ATTACHED
COURT OF APPEALS
ELEVENTH DISTRICT OF TEXAS
EASTLAND, TEXAS
OPINIONS ATTACHED, WITH INDICTMENTS
IX
COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
DONALD TURNER, No. 08-17-00063-CR
Appellant, Appeal from
v. 243rd District Court
THE STATE OF TEXAS, of El Paso County, Texas
Appellee. (TC # 20030D03096)
MEMORANDUM OPINION
Donald Turner is attempting to appeal his convictions of indecency with a child (Counts I
and II). A jury found Appellant guilty and the trial court assessed his punishment at life
imprisonment. Finding that Appellant did not timely file his notice of appeal, we dismiss the
appeal for lack of jurisdiction.
A timely notice of appeal is necessary to invoke this Court's jurisdiction. Olivo v. State,
918 S.W.2d 519, 522 (Tex.Crim.App. 1996). In a criminal case, a defendant's notice of appeal is
due within thirty days after the sentence is imposed in open court or the trial court enters an
appealable order. See Tex.R.App.P. 26.2(a)(1). The deadline is extended to ninety days after the
date the sentence is imposed in open court if the defendant timely files a motion for new trial. See
Tex.R.App.P. 26.2(a)(2). The judgment of conviction reflects that the trial court imposed sentence
in open court on May 27,2004. Appellant appealed to this Court in 2004, and we issued an opinion
and judgment affirming his convictions. Turner v. State, No. 08-04-00148-CR, 2006 WL 250482
(Tex.App.~El Paso February 2, 2006, pet. ref d). The Court of Criminal Appeals denied
Appellant's petition for discretionary review on July 26, 2006. Appellant has now filed a new
notice of appeal from the same judgment of conviction. We do not have jurisdiction to hear a
second appeal from the samejudgment. Further, we do not havejurisdictionto grant habeascorpus
relief. The Court of Criminal Appeals has exclusive authority to grant post-conviction relief if the
defendant is confined as a result of a final felony conviction., See Tex.CODE Crim.Proc.Ann. art.
11.07, § 3 (West 2015); Ater v. Eighth Court ofAppeals, 802 S.W.2d 241, 243 (Tex.Crim.App.
1991)("We are the only court with jurisdiction in final post-conviction felony proceedings.").
Accordingly, we dismiss the appeal for lack ofjurisdiction.
April 26, 2017
ANN CRAWFORD McCLURE, Chief Justice
Before McClure, C.J., Rodriguez, and Palafox, JJ.
(Do Not Publish)
2-
Court of Appeals
CHIEF JUSTICE CLERK
Ann Crawford McClure Eighth District of Texas . Denise Pacheco
JUSTICES El Paso County Courthouse
Yvonne T. Rodriguez • • 500 E. San Antonio Ave., Suite 1203
Gina M. Palafox
El Paso, Texas 79901-2408
(915) 546-2240 Fax (915) 546-2252
www.txcourts.gov/8thcoa.aspx
August 21, 2017
'Donald Turner Hon. Jaime E. Esparza
/ #1248114
Jester III Unit
District Attorney
El Paso County Courthouse
3 Jester Road 500 E. San Antonio, Suite 201
Richmond, TX 77406 El Paso, TX 79901
* DELIVERED VIA E-MAIL *
RE: Court of Appeals Number: 08-17-00063-CR
Trial Court Case Number: 2003 0D03 096
Style: Donald Turner
v.
The State of Texas
I have this date issued the Mandate in the above styled and numbered cause to the trial
court.
Respectfully yours,
DENISE PACHECO, CLERK
&CA&&0
cc: Norma L. Favela Barceleau
FILE COPY
MANDATE
TO THE 243RD DISTRICT COURT OF EL PASO COUNTY, GREETINGS:
Before our Court of Appeals for the Eighth District of Texas, on 4/26/17, the cause upon appeal
to revise or reverse your judgment between
DONALD TURNER, Appellant,
No. 08-17-00063-CR and
THE STATE OF TEXAS, Appellee,
was determined; and therein our said Court made its order in these words:
The Court has considered this cause on the record and concludes the appeal should be
dismissed for lack of jurisdiction, in accordance with the opinion of this Court. We therefore
dismiss the appeal. We further order that this decision be certified below for observance.
WHEREFORE, WE COMMAND YOU to observe the order of our said Court of
Appeals for the Eighth District of Texas, in this behalf, and in all things have it duly recognized,
obeyed and executed.
WITNESS, the Clerk of the Court of Appeals, with the Seal thereof affixed, at the City of
El Paso, this August 21, 2017.
Denise Pacheco, Clerk
Trial Court No. 20030D03096
So?25M J
_ INDICTMENT
PIDH"RK 891326/^3-04661_
STATE OF TEXAS
VS.
DONALD TURNER
OFFENSE: COUNT I- INDECENCY WITH A CHILD
COUNT II- INDECENCY WITH A CHILD
IN THE NAME AND BY THE AUTHORITY OF THE STATE OF TEXAS
The J3tand. Jurors for the County of El Paso, State of Texas, duly organized as such, at
the lANuAK* Term, A.D., 2003 of the UQTU Judicial District Court for
said County, upon their oaths in said Court, present that on or about the 7th day of March,
2003 and anterior to the presentment of this indictment, in the County of El Paso and State of
Texas, DONALD TURNER, hereinafter referred to as Defendant,
did then and there with intent to arouse and gratify the sexual desire of the said defendant,
intentionally and knowingly engage in sexual contact with JESSICA SNYDER, hereinafter
referred to as Complainant, a child who was then and there younger than 17 years of age and
not the spouse of said defendant by then and there touching any part of the genitals of said
Complainant,
AGAINST THE PEACE AND DIGNITY OF THE STATE.
FILED THE juh ? 5 w DEPUTY
THE STATE OF TEXAS
COUNTY OF EL PASO
I certify that the foregoing is a true and correct copy of the original Indictment on file In my office. Given under my hand
and seal of the court at my office in El Paso, Texas on the II \}j 0 ^ 7003
GILBERT SANCHEZ, DistrictClerk, El Paso County,
BAIL AMOUNT: M,wO by Di
.c^fi
STATE OF TEXAS VS. DONALD TURNER
INDICTMENT - INDECENCY WITH A CHILD
COUNT II - 03-107203
And the Grand Jurors of aforesaid, upon their oaths aforesaid, do further say, charge
and present in and to said Court at said term that on or about the 7th day of March, 2003 and
anterior to the presentment of this indictment, in the County of El Paso and State of Texas,
DONALD TURNER, hereinafter referred to as Defendant,
did then and there with intent to arouse and gratify the sexual desire of the said defendant,
intentionally and knowingly engage in sexual contact with JESSICA SNYDER, hereinafter
referred to as Complainant, a child who was then and there younger than 17 years of age and
not the spouse of said defendant by then and there touching the breast of said
Complainant,
AGAINST THE PEACE AND DIGNITY OF THE STATE.
FILED THE DEPUTY
THE STATE OF TEXAS
COUNTY OF EL PASO
I certify that the foregoing is a true and correct copy of the original Indictment on file in my office. Given under my hand
and seal of the court at my office in El Paso, Texas on the _, .
JUN 9 5 ZUUJ
GILBERT SANCHEZ, District Clerk, El Paso County, Texas
by. _Deputy
BAIL AMOUNT: $ J
1 lTH COURT OF APPEALS
EASTLAND, TEXAS
JUDGMENT
Donald Allen Turner, * From the 142nd District Court
of Midland County,
Trial Court No. CRA-16,002.
Vs. No. 11-17-00165-CR * July 13,2017
The State of Texas, * Per Curiam Memorandum Opinion
(Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.)
This court has inspected the record in this cause and concludes that the
appeal should be dismissed for want ofjurisdiction. Therefore, in accordance
with this court's opinion, the appeal is dismissed.
JIM R. WRIGHT
CHIEF JUSTICE
Court of Appeals SHERRY WILLIAMSON
CLERK
Eleventh District of Texas TELE: 254/629-2638
MIKE WILLSON
JUSTICE 100 WEST MAIN STREET, SUITE 300 FAX: 254/629-2191
P.O. BOX 271 sherry.williamson@txcourts.gov
JOHN M. BAILEY
JUSTICE EASTLAND, TEXAS 76448 www.rxcourts.gov/11 thcoa
June 16,2017
Donald Allen Turner Laura Nodolf, District Attorney
TDCJ #01248114 Eric Kalenak, Assistant
Jester III Unit District Attorney's Office
3 Jester Road 500 North Loraine Street, Suite 200
Richmond, TX 77406 Midland, TX 79701
* DELIVERED VIA E-MAIL *
RE: Appellate Case Number: 11-17-00165-CR
Trial Court Case Number: CRA-16,002
Style: Donald Allen Turner v. The State of Texas
We have this day received and filed a copy of Appellant's Pro Se Notice of Appeal and
the Trial Court Information Form in the above cause. This case bears the above docket number
that should be used on all future correspondence and filings.
We note that the Notice of Appeal appears to be untimely filed in the trial court. The due
date was December 30, 1993. Tex. R. App. P. 26.2.
The sentence was imposed on November 3, 1993; and the Notice of Appeal was filed on
June 15, 2017, 23 years and 197 days after the date that the sentence was imposed.
Appellant is requested to respond on or before July 3, 2017, showing grounds for
continuing this appeal, which may include proof of mailing.
Absent a timely filed Notice of Appeal, this appeal may be dismissed for want of
jurisdiction. Tex. R. APP. P. 25.2.
Respectfully yours,
Sherry Williamson, Clerk
cc: George D. Gilles, Judge (DELIVERED VIA E-MAIL)
District Clerk - Midland County (DELIVERED VIA E-MAIL)
Melissa Crooks, Court Reporter (DELIVERED VIA E-MAIL)
JIM R.WRIGHT
CHIEF JUSTICE
Court of Appeals SHERRY WILLIAMSON
CLERK
Eleventh District of Texas TELE: 254/629-2638
MIKEWILLSON
JUSTICE 100 WEST MAIN STREET, SUITE 300 FAX: 254/629-2191
P. O. BOX 271 sherry.williamson@txcourts.gov
JOHN M. BAILEY www.rxcourts.gov/11 thcoa
JUSTICE EASTLAND, TEXAS 76448
June 30, 2017
Eric Kalenak, Assistant Laura Nodolf, District Attorney
District Attorney's Office District Attorney's Office
500 North Loraine Street, Suite 200 500 North Loraine Street, Suite 200
Midland, TX 79701 Midland, TX 79701
* DELIVERED VIA E-MAIL * * DELIVERED VIA E-MAIL *
Donald Allen Turner
TDCJ #01248114
Jester III Unit
3 Jester Road
Richmond, TX 77406
RE: Appellate Case Number: 11-17-00165-CR
Trial Court Case Number: CRA-16,002
Style: Donald Allen Turner
v. The State of Texas
We have this day received and filed "Appellant's First Request to Extend Time to File His
Response-Pursuant to TRAP 10.5(a) and (b)" in the above cause.
We will advise you of the Court's action on this motion.
Respectfully yours,
Sherry Williamson, Clerk
cc: George D. Gilles, Judge (DELIVERED VIA E-MAIL)
District Clerk - Midland County (DELIVERED VIA E-MAIL)
Melissa Crooks, Court Reporter (DELIVERED VIA E-MAIL)
JIM R.WRIGHT
CHIEF JUSTICE
Court of Appeals SHERRY WILLIAMSON
CLERK
Eleventh District of Texas TELE: 254/629-2638
MIKEWILLSON
JUSTICE 100 WEST MAIN STREET, SUITE 300 FAX: 254/629-2191
P.O. BOX 271 sherry.williamson@txcourts.gov
JOHN M. BAILEY www.txcourts.gov/11 thcoa
JUSTICE EASTLAND, TEXAS 76448
July 3,2017
Eric Kalenak, Assistant Laura Nodolf, District Attorney
District Attorney's Office District Attorney's Office
500 North Loraine Street, Suite 200 500 North Loraine Street, Suite 200
Midland, TX 79701 Midland, TX 79701
* DELIVERED VIA E-MAIL * * DELIVERED VIA E-MAIL *
Donald Allen Turner
TDCJ #01248114
Jester III Unit
3 Jester Road
Richmond, TX 77406
RE: Appellate Case Number: 11-17-00165-CR
Trial Court Case Number: CRA-16,002
Style: Donald Allen Turnerv. The State of Texas
We have this day received and filed Appellant's Pro Se response showing grounds to
continue this appeal in the above cause.
Enclosed, Mr. Turner will find his original exhibit documents.
Respectfully yours,
O^CutAA*«-F
Sherry Williamson, Clerk
cc: George D. Gilles, Judge (DELIVERED VIA E-MAIL)
District Clerk - Midland County (DELIVERED VIA E-MAIL)
Melissa Crooks, Court Reporter (DELIVERED VIA E-MAIL)
JIM R.WRIGHT
CHIEFJUSTICE
Court of Appeals SHERRY WILLIAMSON
CLERK
Eleventh District of Texas TELE: 254/629-2638
MIKEWILLSON
JUSTICE 100 WEST MAIN STREET, SUITE 300 FAX: 254/629-2191
P.O. BOX 271 sherry.williamson@txcourts.gov
JOHN M. BAILEY www.txcourts.gov/llthcoa
JUSTICE EASTLAND, TEXAS 76448
July 13, 2017
Eric Kalenak, Assistant Laura Nodolf, District Attorney
District Attorney's Office District Attorney's Office
500 North Loraine Street, Suite 200 500 North Loraine Street, Suite 200
Midland, TX 79701 Midland, TX 79701
* DELIVERED VIA E-MAIL * * DELIVERED VIA E-MAIL *
Donald Allen Turner
TDCJ #01248114
Jester III Unit
3 Jester Road
Richmond, TX 77406
RE: Appellate Case Number: 11-17-00165-CR
Trial Court Case Number: CRA-16,002
Style: Donald Allen Turner v. The State of Texas
The Courthas this day DISMISSED the appeal in the above cause.
Copies of the Court's opinion and judgment are attached.
Appellant is advised that a Petition for Discretionary Review may be filed with the Clerk,
Court of Criminal Appeals. Austin. Texas. No copy is required for the Eleventh Court of
Appeals.
Respectfully yours,
Sherry Williamson, Clerk
cc: George D. Gilles, Judge (DELIVERED VIA E-MAIL)
District Clerk - Midland County (DELIVERED VIA E-MAIL)
Dean Rucker, Administrative Judge (DELIVERED VIA E-MAIL)
JIM R. WRIGHT
CHIEF JUSTICE
Court of Appeals SHERRY WILLIAMSON
CLERK
Eleventh District of Texas TELE: 254/629-2638
MIKE WILLSON
JUSTICE 100 WEST MAIN STREET, SUITE 300 FAX: 254/629-2191
P.O. BOX 271 sherry.williamson@txcourts.gov
JOHN M. BAILEY www.txcourts.gov/11 thcoa
JUSTICE EASTLAND, TEXAS 76448
July 17, 2017
Eric Kalenak, Assistant Laura Nodolf, District Attorney
District Attorney's Office District Attorney's Office
500 North Loraine Street, Suite 200 500 North Loraine Street, Suite 200
Midland, TX 79701 Midland, TX 79701
* DELIVERED VIA E-MAIL * * DELIVERED VIA E-MAIL *
Donald Allen Turner
TDCJ #01248114
Jester III Unit
3 Jester Road
Richmond, TX 77406
RE: Appellate Case Number: 11-17-00165-CR
Trial Court Case Number: CRA-16,002
Style: Donald Allen Turner v. The State of Texas
We have this day received and filed "Appellant Seeking Leave to Amend Certification of
His Right to Appeal. TRAP 25.2 (f), 25.2 (e), 37.1" (Motion for Rehearing) in the above cause.
We will advise you of the Court's action on this motion.
Respectfully yours,
Sherry Williamson, Clerk
JIM R.WRIGHT
CHIEF JUSTICE
Court of Appeals SHERRY WILLIAMSON
CLERK
Eleventh District of Texas TELE: 254/629-2638
MIKEWILLSON
JUSTICE 100 WEST MAIN STREET, SUITE 300 FAX: 254/629-2191
P.O. BOX 271 sherry.williamson@rxcourts.gov
JOHN M. BAILEY
JUSTICE EASTLAND, TEXAS 76448 www.txcourts.gov/1 lthcoa
July 27, 2017
Eric Kalenak, Assistant Laura Nodolf, District Attorney
District Attorney's Office District Attorney's Office
500 North Loraine Street, Suite 200 500 North Loraine Street, Suite 200
Midland, TX 79701 Midland, TX 79701
* DELIVERED VIA E-MAIL * * DELIVERED VIA E-MAIL *
Donald Allen Turner
TDCJ #01248114
Jester III Unit
3 Jester Road
Richmond, TX 77406
RE: Appellate Case Number: 11-17-00165-CR
Trial Court Case Number: CRA-16,002
Style: Donald Allen Turner v. The State of Texas
The Court has this day DENIED "Appellant seeking leave to amend certification of his
right to appeal. TRAP 25.2 (f), 25.2 (e), 37.1" (Motion for Rehearing) in the above cause.
The Court has also this day DENIED Appellant's pro se amended motion for rehearing
in the above cause.
If either party wishes to file a Petition for Discretionary Review, please note:
1) Pursuant to Tex. R. App. P. 68.3(a), the petition and all copies of the petition must be
filed with the Clerk of the Court of Criminal Appeals; and
2) Pursuant to Tex. R. App. P. 68.4(j), a copy of this Court's opinion must be attached to
each copy of the Petition for Discretionary Review.
Respectfully yours,
Sherry Williamson, Clerk
y
Opinion filed July 13, 2017
In The
Clebentf) Court of gppeate
No. 11-17-00165-CR
DONALD ALLEN TURNER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 142nd District Court
Midland County, Texas
Trial Court Cause No. CRA-16,002
MEMORANDUM OPINION
Donald Allen Turner, Appellant, has filed an untimely notice of appeal in this
cause. Appellant attempts to appeal from the adjudication of his guilt with respect
to three counts of indecency with a child by contact. We dismiss the appeal.
The documents on file in this case indicate that Appellant's sentence for each
count was imposed on November 3, 1993, and that his notice of appeal was filed in
the district clerk's office on June 15, 2017. Pursuant to Tex. R. App. P. 26.2(a), a
>. . \
notice of appeal is due to be filed either (1) within thirty days after the date that
sentence is imposed in open court or (2) if the defendant timely files a motion for
new trial, within ninety days after the date that sentence is imposed in open court.
A notice of appeal must be in writing and filed with the clerk of the trial court.
TEX. R. App. P. 25.2(c)(1). The documents on file in this court reflect that
Appellant's notice of appeal was filed with the clerk of the trial court more than
twenty-three years after Appellant's sentences were imposed. The notice of appeal
was, therefore, untimely. Absent a timely filed notice of appeal or the granting of a
timely motion for extension of time, we do not have jurisdiction to entertain this
appeal. Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998); Olivo v. State,
918 S.W.2d 519, 522-23 (Tex. Crim. App. 1996); Rodarte v. State, 860 S.W.2d 108,
110 (Tex. Crim. App. 1993).
When the appeal was filed in this court, we notified Appellant by letter that
the notice of appeal appeared to be untimely and that the appeal may be dismissed
for want ofjurisdiction. We requested that Appellant respond to our letter and show
grounds to continue. Appellant filed a response in which he asserts that he was not
afforded effective assistance of counsel during the punishment phase of the
adjudication proceeding. We have considered Appellant's response; however, we
are without authority to proceed with this appeal. See Slaton, 981 S.W.2d at 210.
Accordingly, we dismiss this appeal for want of jurisdiction.
PER CURIAM
July 13,2017
Do not publish. See TEX. R. APP. P.47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.
Court of Appeals
CHIEF JUSTICE t-i „ tv „ m CLERK
Ann Crawford McClure ElGHTH DISTRICT OF TEXAS Den" Pacheco
JUSTICES El Paso County Courthouse
Yvonne T. Rodriguez . 500 E. SAN ANTONIO AVE., SUITE 1203
Gina M. Palafox El pAS0> Texas 7990,.240g
(915) 546-2240 Fax (915) 546-2252
www.txcourts.g0v/8.thcoa.aspx
April 26, 2017
Donald Turner Hon. Jaime E. Esparza
#1248114 District Attorney
Jester III Unit El Paso County Courthouse
3 Jester Road 500 E. San Antonio, Suite'201
Richmond, TX 77406 El Paso, TX 79901
* DELIVERED VIA E-MAIL *
RE: Court of Appeals Number: 08-17-00063-CR
Trial Court Case Number: .20030D03096
Style: Donald Turner
v.
The State of Texas . , ". .
The Honorable Court of Appeals today rendered judgment dismissing the appeal, in
accordance with the opinion of this Court. A copy of the opinion and judgment has been mailed
to the attorney of record for each party.
Respectfully yours,
DENISE PACHECO, CLERK
cc: Honorable Luis Aguilar
Norma L. Favela Barceleau
COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
DONALD TURNER, No. 08-17-00063-CR
Appellant, Appeal from
v. 243rd District Court
THE STATE OF TEXAS, of El Paso County, Texas
Appellee. (TC # 20030D03096)
JUDGMENT
The Court has considered this cause on the record and concludes the appeal should be
dismissed for lack of jurisdiction, in accordance with the opinion of this Court. We therefore
dismiss the appeal. We further order that this decision be certified below for observance.
IT IS SO ORDERED THIS 26TH DAY OF APRIL, 2017.
ANN CRAWFORD McCLURE, Chief Justice
Before McClure, C.J., Rodriguez, and Palafox, JJ.
State of Texas Cause # CRA-15.796 In the 1 42nd District
Court of Midland County, Texas
F
DONALD 'ALLEN TURNER
yinits c«TO/E33t/&d: t/0.O&£> &o
oeputy
Offense: AGGRAVATED SEXUAL ASSAULT
INDICTMENT
IN THE NAME AND, BY AUTHORITY OF THE STATE OF TEXAS:
THE GRAND JURY, for the County of Midland, State of Texas, duly selected, empaneled,; sworn, charged,
and organized as such by the District Court fob said County, upon their oaths present in and to. said court that
DONALD ALLEN TURNFR
hereinafter styled Defendant, on or about the 16th day of Apri 1 A.D., 19 ftQ
and before the presentment of this indictment, in the county and State aforesaid,
did then and there intentionally and knowingly cause an object, to-wit:
HIS FINGER, to penetrate the female sex organ of C.D. and ,the said C.D. was
then and there a child younger than 14 years of age and not the spouse of
the said DONALD.ALLEN TURNER,
COUNT II
AND THE GRAND JURORS AFORESAID, upon tneir oatns aforesaid, do
further present in and to said court that on or about the,16th'day of April
A.D., 1989, -i-n «s'a id. -coun ty -and '-s-t^at-e ,- -~a;nd<-ah-t-erior io .the-presentment of
this indictment, DONALD ALLEN TURNER, did then and there intentionally and
knowingly cause-an object, to-wit: HIS FINGER, to penetrate the female sex
organ of P.D. and the said P.D. was then and there a child younger than 14
years of age and not the spouse of the said DONALD ALLEN TURNER,
COUNT III
AND THE GRAND JURORS AFORESAID, upon their oaths aforesaid, do
further present in and to said court that on or about the 11th day of March
A.D., 1989, in said county and state, and .anterior' to the presentment of
this indictment, DONALD ALLEN TURNER, did then and there intentionally and
knowingly cause an object, to-wit: HIS FINGER, to penetrate, the female sex
organ of KELLY MCCARTY and the sa'.id KELLY MCCARTY was then and ther.e a
child younger than 14 years of age and not the spouse of the said DONALD
ALLEN TURNER,
COUNT IV ' •
AND THE GRAND JURORS AFORESAID, upon their oaths aforesaid, do
f u r th s r present in and to s?id c o ur t that on o *~ about the* 3 0th day of
September A.D., 1988, in said county and state, and anterior to the
presentment of this indictment, DONALD ALLEN TURNER, did then and there
with the intent to arouse and gratify the sexual desire of the said DONALD
ALLEN TURNER, engage in sexual contact with B.D., a child younger than 17
years of age and not the spouse qf the said DONALD ALLEN TURNER, by then
and there touching a part of the genitals of the said B.D,
CRA-15,796
o
COUNT V
AND THE GRAND JURORS AFORESAID, upon their oaths aforesaid, do
further present in and to said court that on or about the 13th day of July
A.D., 1988, in said county and state, and anterior to the presentment of
this indictment, DONALD ALLEN TURNER, did then and there with the intent to
arouse and gratify the sexual desire of the said DONALD ALLEN TURNER,
engage in sexual contact with M.G., a child younger than 17 years of age
and not the spouse of the said DONALD ALLEN TURNER, by then and there
touching a part of the genitals of the said M.G.,
COUNT VI
AND THE GRAND JURORS AFORESAID, upon their oaths aforesaid, do
further present in and to said court that on or about the 16th day of July
A.D., 1988, in said county and state, and anterior to the presentment of
this indictment, DONALD ALLEN TURNER, did then and there with the intent to
arouse and gratify the sexual desire of the said DONALD ALLEN TURNER,
engage in sexual contact with COLLEN MCCARTY, a child younger than 17 years
of age and not the spouse of the said DONALD ALLEN TURNER, by. then and
there touching a part of the genitals of the said COLLEN MCCARTY,
COUNT VII
AND THE GRAND JURORS AFORESAID, upon their oaths aforesaid, do
further present in and to said court that on or about the 15th day of
August A.D., 1988, in said county and state, and anterior to the
presentment of this indictment, DONALD ALLEN TURNER, did then and there
with the intent to arouse and gratify the sexual desire of the said DONALD
ALLEN TURNER, engage in sexual contact with SUSAN CHAMBER, a child younger
than 17 years of age and not the spouse of the said DONALD ALLEN TURNER, by
then and there touching a part of the genitals of the said SUSAN CHAMBER,
COUNT VIII
AND THE GRAND JURORS AFORESAID, upon their oaths aforesaid, do
further present in and to said court that on or about the 27th day of May
A.D., 1987, in said county and state, and anterior to the presentment of
this indictment, DONALD ALLEN TURNER, did then and there with the intent to
arouse and gratify the sexual desire of the said DONALD ALLEN TURNER,
engage in sexual contact with S.J., a child younger than 17 years of age
and not the spouse of the said DONALD ALLEN TURNER, by then and there
touching a part of the genitals of the said S.J.,
COUNT IX
AND THE .GRAND JURORS AFORESAID, upon their oaths aforesaid, do
further present in and to said court that on or about the 16th day of April
A.D., 1989, in said county and state, and anterior to the presentment of
this indictment, DONALD ALLEN TURNER, did then and there with the intent to
arouse and gratify the sexual desire of the said DONALD ALLEN TURNER,
engage in sexual contact with D.G., a child younger than 17 years of age
and not the spouse of the said DONALD ALLEN TURNER, by then and there
touching a part of the genitals of the said D.G.,
COUNT X
AND THE GRAND JURORS AFORESAID, upon their oaths aforesaid, do
further present in and to said court that on or about the 16th day of April
A.D., 1989, in said county and state, and anterior to the presentment of
this indictment, DONALD ALLEN TURNER, did then and there with the intent to
arouse and gratify the sexual desire of the said DONALD ALLEN TURNER expose
a part of the genitals of the said DONALD ALLEN TURNER to D.G., a child
younger than 17 years of age ancl not the spouse of the said DONALD ALLEN
TURNER, the said DONALD ALLEN TURNER then and there knowing that the said
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I, ROSS BUSH, District Cferfc,'" ,/ .- tt VS' '
. < ' Midland County, Texas,do;jiereby certify that '«,;.
1 f this is a true and correct copy as same appears t - „
^ '% of record in1,my office. Witness myjjand and ,,' ,> „ "*
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State "of Texas Cause # CRA-16;o62(2) jWj |l t)\n the 142nd District
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Court of Midland County, Texas
v- 89 AUG 23 PH U'- 37
ViVlAN WOOD. DISTRICT CLERK
DONALD ALLEN TURNER MiDLf -«>»»tv/»FJ£AS •/
DEPUTY
nJt/O^Q 0 0 - c-o
Offense: AGGRAVATED SEXUAL ASSAULT
RE'-INDICTMENT
INDICTMENT
IN THE NAME AND BY AUTHORITY OF THE STATE OF TEXAS:
THE GRAND JURY, for the County of Midland, State of Texas, duly, selected, empaneled, sworn, charged,
and organized as such by the District Court for said County, upon their oaths present in and to said court that
DONALD ALLEN TURNER
hereinafter styled Defendant, on or about the 16th day of Apr i 1 A.D., 19 89
and before the presentment of this indictment, in the county and State aforesaid,
did then and there intentionally and knowingly cause an- object, ,to-wit:
HIS FINGER, to penetrate the female sex organ of SYBIL HUBBARD and the said
SYBIL HUBBARD was then and there;a child younger than 14 years of age and
not the spouse of the said DONALD ALLEN TURNER,
i
COUNT II
AND THE GRAND JURORS AFORESAID, upon their oaths afore.sa^d, do
further present in and to said court that on or about thes 16th day,of April
A.D., I989, in said county and state, and anterior to'the presentment of
this indictment, DONALD ALLEN TURNER, did then and there intentionally and
knowingly cause an object, to-wit: HIS FINGER, to penetrafe the female sex
organ ,of SHARLA REDDING and the said SHARLA REDDING was then-and there 'a
child younger than 14 years of age and not the spouse of the said DONALD
ALLEN TURNER,
COUNT III
>
AND THE GRAND JURORS AFORESAID, up.on, their oaths aforesaid, .do
further present in and to said court that on or about the 11th day of March'
A.D., 1989, in said county and state, and anterior to the presentment of
this indictment, DONALD ALLEN TURNER, did then and there intentionally and
knowingly cause an object, to-wit: HIS FINGER, to penetrate the female sex
organ of KELLY MCCARTY and the said KELLY MCCARTY was then and there a
child younger than 14 years of age and not the,spouse of the said DONALD
ALLEN TURNER,
COUNT IV
M\iD the GRAND 'UROPS AFQRFSatd, i'pon their oai'is aforesaid, do
further present in and to said court that on or about the 30th day of
September A.D., 1988, in said county and state, and anterior to the
presentment of this indictment, DONALD ALLEN TURNER, did then and! there
with the intent' to arouse and 'gratify the sexual desire of the said ' DONALD
ALLEN TURNER, engage in sexual contact with JENNIFER MASON, a 'child younger
than 17 years of age and not the spouse of the said DONALD^ALLEN TURNER, by
then and there touching a part of the genitals of the said JENNIFER MASON,
COUNT V
AND THE GRAND JURORS AFORESAID, upon their oaths aforesaid, do
further present in and to said court that on or about the 1st day of
October A.D., 1987, in said county and state, and anterior to the
presentment of this indictment, DONALD ALLEN TURNER, did then and there
with the intent to arouse and gratify the sexual desire of the said DONALD
ALLEN TURNER, engage in sexual contact with WHITNEY GRAY, a child younger
than 17 years of age and not the spouse of the said DONALD ALLEN TURNER, by
then and there touching a part of the genitals of the said WHITNEY GRAY,
COUNT VI
AND THE GRAND JURORS AFORESAID, upon their oaths aforesaid, do
further present in and to said court that on or about the 16th day of July
A.D., 1988, in said county and state, and anterior to the presentment Of
this indictment, DONALD ALLEN TURNER, did then and there with the intent to
arouse and gratify the sexual desire of the said DONALD ALLEN TURNER,
engage in sexual contact with COLLEN MCCARTY, a child younger than 17 years
of age and not the spouse of the said DONALD ALLEN TURNER, by then and
there touching a part of the genitals of the said COLLEN MCCARTY,
COUNT VII
AND THE GRAND JURORS AFORESAID, upon their oaths aforesaid, do
further present in and to said court that on or about the 15th day of
August A.D., 1988, in said county and state, and anterior to the
presentment of this indictment, DONALD ALLEN TURNER, did then and there
with the intent to arouse and gratify the sexual desire of the said DONALD
ALLEN TURNER, engage in sexual contact with LINDSEY COLEMAN, a child
younger than 17 years of age and not the spouse of the said DONALD ALLEN
TURNER, by then and there touching a part of the genitals of the said
LINDSEY COLEMAN,
COUNT VIII
AND THE GRAND JURORS AFORESAID, upon their oaths aforesaid, do
further present in and to said court that on or about the 27th day of May
A.D., 1987, in said county and state, and anterior to the presentment of
this indictment, DONALD ALLEN TURNER, did then and there with the intent to
arouse and gratify the sexual desire of the said DONALD ALLEN TURNER,
engage in sexual contact with S.J. a child younger than 17 years of age and
not the spouse of the said DONALD ALLEN TURNER, by then and there touching
a part of the genitals of the said S.J.,
COUNT IX
AND THE GRAND JURORS AFORESAID, upon their oaths aforesaid, do
further present in and to said court that on or about the 16th day of April
A.D., 1989, in said county and state, and anterior to the presentment of
this indictment, DONALD ALLEN TURNER, did then and there with the intent to
arouse and gratify the sexual desire of the said DONALD ALLEN TURNER,
engage in sexual contact with ASHLEY HODGES, a child younger than 17 years
of age and not the spouse of the said DONALD ALLEN TURNER, by then and
there touching a part of the genitals of the said ASHLEY HODGES,
COUNT X
AND THE GRAND JURORS AFORESAID, upon their oaths aforesaid, do
further present in and to said court that on or about the 16th day of April
A.D., 1989, in said county and state, and anterior to the presentment of
this indictment, DONALD ALLEN TURNER, did then and there with the intent to
arouse and gratify the sexual desire of the said DONALD ALLEN TURNER expose
a part of the genitals of the said DONALD ALLEN TURNER to ASHLEY HODGES, a
child younger than 17 years of age and not the spouse of the said DONALD
r AND THE GRAND JURORS AFORESAID, upon their oaths aforesaid, do further
present in and to said court that all of the counts contained in this
indictment are offenses which arose out of the same criminal episode by the
said DONALD ALLEN TURNER prior,to the presentment of this indictment,
I, ROSS BUSH, District Clerk,
Midland County, Texas, do hereby certify that
this is a true and correct copy as same appears
of record in my office^Witness
u Witness rnjjhand
rnv and
seal of office on. ..,«•»"""»*»»,.
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GLORIA UDDLEY
Notary Public
STATE OF TEXAS
MyComm. Exp.05-26-20
Notify ID #516017-8
Case Number 15,796
142nd district court, Midland, TX.
My name was Tiffarty Turner at the time. I was at this trial and the following people were there
and able to testify:
Sybill Hubbard
Starla Redding
Kelly McCarty
Jennifer Mason
Whitney Grey
Colleen McCarty
Ashley Hodges
Ashley Hodges
Signed:
CW^/ Ha *& /if^f*^ W' (ajJJ y~Hy
State of Washington )
/ : ss.
County of Snohomish)
On this _7 ... day of Cl+<4*o- _, in the year %?i2 „before me
"^3m P.Ghjmflto&ffi- . personally appeared rifeW Tun^ k*,.-o ^— >oy
ifi<3^iiwH"ir^A&via^'V'".>-'M''--.V*i*'
PRIORITY HAIL EXPRESS
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EXPRESS Donald Allen Turner,TDCJ-ID# 1248114
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TO: Court of Criminal Appeals of Texas
P.O. Box 12308, Capitol Station
Austin, Texas
~ 78711
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