Barbour v. Director
Decision Date | 02 September 2014 |
Docket Number | CIVIL ACTION NO. 4:11cv365 |
Parties | ANTHONY TRENT BARBOUR, #01474560 v. DIRECTOR, TDCJ-CID |
Court | U.S. District Court — Eastern District of Texas |
Petitioner Anthony Trent Barbour, an inmate confined in the Texas prison system, proceeding with the assistance of counsel, filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petition was referred to the undersigned United States Magistrate Judge for findings of fact, conclusions of law, and recommendations for the disposition of the case pursuant to 28 U.S.C. § 636 and the Amended Order for the Adoption of Local Rules for the Assignment of Duties to the United States Magistrate Judge.
Petitioner is challenging his Lamar County conviction for injury to a child, Cause Number 21634. On November 9, 2007, a jury found him guilty and sentenced him to twenty (20) years of confinement. He was granted an out-of-time appeal, and the Sixth Court of Appeals affirmed his conviction on January 27, 2010. Barbour v. State, No. 06-00092-CR (Tex. App.-Texarkana, 2010). Petitioner concedes that he did not file a Petition for Discretionary Review. However, he filed a state post-conviction application for habeas corpus relief on April 11, 2011, which the Texas Court ofCriminal Appeals denied without written order on May 25, 2011.
The present petition for a writ of habeas corpus was filed on June 16, 2011. Petitioner asserts that he is entitled to relief because the evidence is insufficient to sustain his conviction and because his trial counsel was ineffective. Respondent filed a Response, asserting that Petitioner's issues are without merit. Petitioner did not file a Reply.
The Sixth Court of Appeals summarized the facts of the case:
C.S.'s pediatrician, Ed Clark, took over and found C.S. "had been beat ... [i]t was beyond spanking." Clark reviewed the PRMC toxicology report and was amazed to find it was positive for "Fentanyl, which is a very potent opioid ... [and][m]orphine, which is also an opiate," although none had yet been given to C.S. PRMC was able to stabilize C.S., but he required transfer by helicopter to Children's Medical Center (CMC).
C.S. was in critical condition when he arrived at CMC in Dr. Matthew Cox's care.
Detective Shane Boatwright responded to the report provided by Dr. Cox. Again, Hurst admitted to spanking C.S., but only three times. Next, Boatwright spoke to Barbour, who was described as "just kind of bubbly ... it was just kind of rapid, rapid fire talking to me ... he was eager to talk." He "didn't appear to be upset or ... even really concerned." Barbour said "he had been spinning the kids around and, like in a circle, and that he and [C.S .] had both gotten dizzy, said that [C.S.] had fell down, said he sort of hit his butt and his head on the floor simultaneously." C.S. complained of a headache a few hours later. Barbour then claimed it was normal for C.S.'s lips to turn purple on occasion. He told the detective that he was a weak disciplinarian and that the bruising on the scrotum might have occurred when he put C.S. in the shower. Boatwright concluded there were discrepancies in Barbour's story.
At trial, the jury heard from C.S., who said Barbour was "[s]winging me around by my ankles and threw me into a coffee table" causing him to pass out. C.S. did not hurt from the accident, but Barbour "gave me some yellow stuff ... [i]n a spoon" that made him feel dizzy. C.S. went into further detail about his abuse and started by saying Barbour "treated [him] pretty good in the daytime but then at night he would" wake him up and "beat [him]" in the back yard or in the shop in the yard. The beatings occurred at least twenty times. Barbour would hit C.S. with extension cords, belts, tree branches, or a wooden spoon. C.S. would be beat in the legs, on his "private," and "bottom." C.S. told the jury he "was so scared of peeing the bed" because Barbour "would put clothes pins on my private" and would hit him in his "private parts." C.S. claimed he told his mother about the beatings once, but she did nothing. C.S. also said his mother would beat him with a belt when he got a spanking. He testified that the beatings by Barbour led to bruising.
At trial, Vrba testified that C.S.'s white blood count was elevated, indicating trauma or infection, and that the bruises to C.S. could be caused by something long and narrow like an extension cord. Dr. Clark believed that the bruising to the private area would be consistent with being beaten with a wooden spoon. He countered Barbour's explanation that C.S. had fallen on his head and buttocks simultaneously by pointing out the injuries to both sides of the head, which would not be consistent with one fall to the ground. Dr. Cox believed the bruising to the neck was caused by someone grabbing C.S. by the neck. The linear bruising was
The defense theory at trial opined the possibility that Hurst had inflicted the bodily injury to C.S. Hurst was a nurse for an assisted living home. Because she oversaw the medication room, she had access to liquid morphine. At trial, Hurst denied taking any action which would cause bruising to C.S.'s private areas. She went to work at 5:45 a.m....
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