TEXAS – Anthony Bartee execution scheduled for today – STAY granted

Why the State of Texas is moving forward with the execution despite the fact that there is significant DNA evidence that has not been tested despite numerous appeals filed by his attorneys to have the evidence tested

7.29 p.m  Stay granted to Anthony Bartee, scheduled for execution tonight. The Fifth Circuit Court of Appeals has ordered additional briefing, due May 8th. Congrats to attorneys David Dow and Jeff Newberry for their spectacular work! source : Texas Defender Service

7 p.m.  no word yet from the Fifth U.S. Circuit Court of Appeals about whether they will affirm or overturn Anthony Bartee’s stay of execution.

EXECUTION WATCH IS ON THE AIR  6pm-7pm

HUNTSVILLE, Texas — Anthony Bartee remains in limbo as a federal appeals court mulls over a challenge of a court order delaying his execution tonight.

The Fifth U.S. Circuit Court of Appeals continued to consider the challenge even as the scheduled time of Bartee’s execution passed.

UPDATE : 4:44 pm CDT 

PROSECUTOR CHALLENGES BARTEE’S STAY

By Execution Watch

HUNTSVILLE, Texas – The prosecutor’s office that obtained the death sentence against Anthony Bartee is doing its best to see that it is carried out tonight.

The Bexar County District Attorney’s Office has asked the Fifth U.S. Circuit Court of Appeals to throw out the stay issued by U.S. District Judge Fred Biery in San Antonio, a spokesman for Texas Attorney General Greg Abbott said.

The district attorney’s brief is before appeals court now.

UPDATE 4:20 PM CDT 

BARTEE WINS STAY

By Execution Watch

HUNTSVILLE, Texas — Anthony Bartee received a stay of execution this afternoon with about two hours to spare.

A federal judge in San Antonio granted Bartee’s request to put off the execution so he may press his claim that further testing of crime-scene evidence should be done and that it would point to his innocence.

It remains to be seen whether the stay can and will be challenged by the state in time to proceed with its plan to put Bartee to death tonight.

The execution was scheduled for a little after 6 p.m., but the document ordering the execution generally allows it to be carried out up until shortly before midnight.

In granting the stay, U.S. District Judge Fred Biery said Bartee “has shown a significant possibility of success on the merits.”

Bartee’s execution would be the 244th execution conducted under the administration of Rick Perry.

Anthony Bartee, 55, still has an appeal pending with the U.S. Supreme Court seeking further genetic testing of the crime scene evidence, and his attorneys filed a federal civil rights lawsuit in San Antonio on Wednesday over the same issues. The execution by lethal injection is scheduled for 6 p.m. CDT today. One of TMN’s Facebook page members is traveling to Huntsville today from Austin to protest the execution.

BARTEE SUES BEXAR COUNTY D.A., ASKS FOR STAY
By Execution Watch
HUNTSVILLE, Texas – Anthony Bartee, slated to be put to death this evening, filed a civil rights lawsuit today against the Bexar County District Attorney in U.S. District Court in San Antonio, a spokesman for Texas Attorney General Greg Abbott said.

Bartee also asked the federal panel to put his execution on hold. The next step for the court is to assign a judge.

The Texas Court of Criminal Appeals today denied Bartee’s request for a stay, affirming the trial court’s ruling that the results of recent DNA tests probably would not have persuaded a jury to acquit him if they had been available as evidence at trial.

Bartee appealed to the U.S. Supreme Court to delay his execution. The stay application joined a pending request for the high court to review his case.

Abbott urged the Supreme Court to reject the request for a stay, asking that the execution be allowed to go forward as planned.

If the state proceeds with its plan to execute Bartee, Execution Watch will broadcast live coverage and commentary starting at 6 p.m. Central Time on KPFT FM 90.1 in Houston and worldwide at http://executionwatch.org/ > Listen.

Source : Texas Court

Case Information:

Case Number: AP-76,783 Date Filed: 4/30/2012 Case Type: DNA Style: BARTEE, ANTHONY v.:

Case Events:

	Date	Event Type	Description
	4/30/2012	BRIEF FILED	Appellant
	4/30/2012	AFFIDAVIT FILED	Appellant
	4/30/2012	DP BEGIN DNA	Appellant
	4/30/2012	NOTICE OF APPEAL	Appellant
	4/30/2012	STAY OF EXECUTION	Appellant
	4/30/2012	AFFIDAVIT FILED	Appellant

Calendars:

	Set Date	Calendar Type	Reason Set
	4/30/2012	STATUS	STATE’S BRIEF DUE

Parties:

	Party	Party Type
	TEXAS, STATE OF	State
	BARTEE, ANTHONY	Appellant

Court of Appeals Case Information:

COA Case Number: COA Disposition: Opinion Cite: Court of Appeals District:

Trial Court Information:

Trial Court: 175th District Court County: Bexar Case Number: 1997-CR-1659 Judge: MARY ROMAN Court Reporter:

 Hint: Click on the folder icons above for more case information.

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• Texas – Anthony Bartee – execution – may 2, 2012 (claimyourinnocence.wordpress.com)

Texas – Anthony Bartee – execution – may 2, 2012 Stay granted

Sentenced to 10 years and 33 years for two counts of Aggravated Rape out of Bexar County.  Bartee was on parole when he committed the offense of capital murder described here.

Bartee was originally scheduled to be executed on February 28, 2012, even though DNA evidence collected at the crime scene had not been tested as ordered on at least two occasions by District Judge Mary Román. He received a reprieve on February 23, 2012 when Judge Román withdrew the execution warrant so that additional DNA testing could be conducted on strands of hair found in the hands of the victim, David Cook.  She also ordered the forensic lab to provide a detailed and comprehensive report to the court with an analysis of the results. Yet, before the testing occurred, Judge Román inexplicably set another execution date, for May 2, 2012.

According to Bartee’s attorneys, DNA testing was just conducted and indicated that hairs that were tested found in Cook’s hands belonged to Cook.  The jury never heard this evidence – and in fact wasn’t told about the hairs at all – which might have undermined the prosecution’s theory of the case that a violent struggle had ensued between Cook and his killer. Still, Judge Román entered the findings as unfavorable, opining that this evidence would not have made a difference in the outcome of the trial, had it been available to the jury. Under Article 64.05 of the Texas Code of Criminal Procedure, Bartee’s attorneys have the right to appeal the unfavorable findings. The fast-approaching execution date significantly impedes this right to due process, however.

In addition, there is still more evidence that has not been tested for DNA, including cigarette butts and at least three drinking glasses found at the crime scene. In 2010, the court ordered that all items that had not been tested be tested, but these items still have not been tested.

FACTS OF THE CRIME

from Texas Attorney General

The United States Court of Appeals for the Fifth Circuit described the facts surrounding the murder of Mr. Cook as follows:

On 17 August 1996, the victim’s body was discovered by police and his family in his home in San Antonio, Texas. He had been shot twice in the head and stabbed in the shoulder. The bullet fragments at the scene were consistent with having been fired from a pistol owned by the victim. This pistol, and the victim’s red Harley Davidson motorcycle, were missing from his home.

At some point that summer, Bartee had asked an acquaintance to assist him in robbing and killing a neighbor, informing him this neighbor “had some gold [credit] cards and a motorcycle” that Bartee wanted. And, two days prior to the discovery of the victim’s body, Bartee had informed another acquaintance, Munoz, that he intended to “ace some white dude out”. Bartee unsuccessfully solicited both Munoz and several others to assist him in achieving this result. That same day, at nearly midnight, Bartee arrived at Munoz’[s] home, riding a Harley Davidson motorcycle and claiming to carry a gun. Several witnesses identified this motorcycle as being similar or identical to the victim’s.

PROCEDURAL HISTORY

On April 2, 1997, a Bexar County grand jury indicted Bartee for murdering David Cook.

On May 15, 1998, a Bexar County jury convicted Bartee of capital murder. After a separate punishment proceeding, Bartee was sentenced to death on May 19, 1998.

On May 3, 2000, Bartee’s conviction and sentence were affirmed by the Court of Criminal Appeals of Texas on direct appeal. Bartee did not appeal the state court’s decision to the Supreme Court of the United States. Instead, he filed an application for habeas corpus relief which was denied by the Court of Criminal Appeals on March 8, 2006.

On January 23, 2007, Bartee filed a motion for DNA testing in the 175th State District Court in Bexar County. On June 18, 2007, the district court granted Bartee’s motion and ordered that DNA tests be conducted on the crime scene evidence. After reviewing the test results, the court determined that the evidence did not exonerate Bartee because the DNA profiles developed from the blood and hair samples were consistent with the victim’s profile. Consequently, the convicting court rejected Bartee’s appeal and upheld the capital murder conviction. Bartee appealed the trial court’s finding to the Court of Criminal Appeals, but his appeal was dismissed as untimely on March 16, 2011.

On February 21, 2007, Bartee filed a petition for writ of habeas corpus in the U.S. District Court for the Western District of Texas, San Antonio Division. The federal court denied Bartee’s petition on August 6, 2008.

On July 31, 2009, the Fifth Circuit rejected Bartee’s appeal and affirmed the denial of habeas corpus relief by the district court.

Bartee filed a petition for writ of certiorari in the Supreme Court on November 23, 2009, but the Supreme Court denied certiorari review on March 22, 2010.

On April 20, 2011, Bartee file a second application for habeas corpus relief which was dismissed by the Court of Criminal Appeals on September 14, 2011.

Convicted in the August 1996 robbery murder of a friend, Bartee was given a stay before his scheduled execution in February so that additional DNA testing could be done. When the May 2 date was announced, Bartee attorney David Dow sent the court a letter saying the new date should not have been set because DNA testing has not been done. Dow said no notice of a hearing for a new execution date was sent to him or Bartee.

unpublished docket  : opinion 2009

Click on the folder icons above for more case information.

Case Information: Case Number: WR-63,381-01 Date Filed: 11/1/2005 Case Type: 11.071 Style: BARTEE, ANTHONY v.: Case Events:   Date Event Type Description 2/29/2012 ORDER FILED Habeas Corpus – Capital Death 11/16/2011 MISC DOCUMENT RECD 3/31/2006 MOT FEDERAL APPT Habeas Corpus – Capital Death 3/20/2006 MOT FEDERAL APPT LETTER Habeas Corpus – Capital Death 3/8/2006 11.071 WRIT DISP Habeas Corpus – Capital Death 2/23/2006 WRIT SUBMITTED Habeas Corpus – Capital Death 11/1/2005 11.071 WRIT RECD Habeas Corpus – Capital Death 11/1/2005 ADDITIONAL VOLUME TO AN 11.071 WRIT RECORD 11/1/2005 ADDITIONAL VOLUME TO AN 11.071 WRIT RECORD 11/1/2005 ADDITIONAL VOLUME TO AN 11.071 WRIT RECORD 11/1/2005 ADDITIONAL VOLUME TO AN 11.071 WRIT RECORD Calendars:   Set Date Calendar Type Reason Set 3/8/2006 STORED WRIT STORED Parties:   Party Party Type BARTEE, ANTHONY Applicant (writs)/Appellant… BARTEE, ANTHONY Applicant Court of Appeals Case Information: COA Case Number: COA Disposition: Opinion Cite: Court of Appeals District: Trial Court Information: Trial Court: 175th District Court County: Bexar Case Number: 1997CR1659-W1 Judge: MARY ROMAN Court Reporter:

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