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

ANTHONY TRENT BARBOUR, #01474560 v. DIRECTOR, TDCJ-CID

CIVIL ACTION NO. 4:11cv365

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS SHERMAN DIVISION

September 2, 2014

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

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.

Background

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.

Statement of Facts

The Sixth Court of Appeals summarized the facts of the case:

Paramedic Robert Cody rushed to respond to the dispatch of an eight-year-old boy in distress. When he arrived at the home of Lisa Hurst, he found her son C.S. unresponsive and on the verge of death. His agonal respirations were slow and erratic, and he was blue, due to the lack of oxygen. After noting that Barbour, his caretaker for the day, was nowhere to be found, Cody intubated C.S. and raced to the Paris Regional Medical Center (PRMC) emergency room.

On arrival, emergency room nurse Karen Vrba noted C.S.'s core temperature was an extremely low 87.5 degrees and his blood pressure was "pretty low." She was shocked to find C.S.'s body covered with excessive fresh and older bruising. C.S. was bruised on both sides of the forehead, his eye, neck, right buttock, right hip, knee, lower back and down the thighs, shins, and legs. Additionally, there was bruising above the rectum, "right above the penis and scrotum ... linear bruising, along the right side of his scrotum ... [and] bruising to the tip of his penis." After taking his vital signs and charting the bruises, Vrba ran blood tests, obtained a urine specimen via catheter, and sent the samples to the laboratory for testing. When questioned, Hurst admitted to whipping the boy with a belt a few days before because he had run away. Barbour did not show up at the hospital and could not be questioned. When probed to offer an explanation of his condition, Hurst suggested C.S. had fallen and hit his head earlier in the day. A CAT scan ruled out brain trauma.

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.

Dr. Cox also ran tests which confirmed PRMC's positive result for opiates. C.S. slipped into a coma and required aggressive resuscitation. Cox documented "[t]he pattern of bruising ... was consistent with being abused." Finally, Barbour arrived at CMC around 5:30 the following morning and met with Dr. Cox. Barbour said C.S. was spinning around to make himself dizzy and fell on his buttocks and forehead simultaneously around 10:00 a.m. Barbour explained that he did not notify Hurst, who was at work until thirty minutes before the ambulance was called, because C.S. was active and playful after the fall. Cox concluded Barbour provided "inadequate explanation for [C.S.'s] hospitalization." CMC continued to treat C.S.'s life-threatening condition and notified the police and the Department of Family and Protective Services of the possible abuse.

Fortunately, C.S. awoke from the coma and family was allowed to visit him. Intensive care unit nurse Debbie Kay Smith monitored his vital signs. Smith noticed a curious pattern in C.S. Whenever Barbour would enter the room, his "blood pressure ... would go up by 20 points every time." She could tell C.S. was uncomfortable, especially when left alone with Barbour because "[h]is heart rate was going up; his blood pressure was going up," and he did not have this physiological reaction to anyone else. At one point, C.S. requested to speak to Hurst. "[A]s she walked in the room, he was going to start to try to talk to her. And then when [Barbour] got into his line of vision, ... he had tears well up in his eyes. And he says, oh, never mind."

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.

After the interview, C.S.'s grandfather asked Boatwright to come to C.S.'s room "because [C.S.] was trying to talk and that [ Barbour] was trying to keep him from it." Boatwright cleared the room of family and interviewed C.S. in the presence of nurses and another detective. C.S. stated during the interview that Barbour had given him a yellow liquid that made him feel dizzy and that he did not remember anything after ingesting the liquid. C.S. stated Barbour hit him with a switch two nights before because he had wet the bed. He described how Barbour put him between a mattress and a box spring and laid on the bed, making it hard for C.S to breathe. Barbour

would spank him with a belt and a wooden spoon. C.S. said Barbour told him to lie to the officers and say he had fallen off a bike if they asked him what happened. After hearing C.S.'s statement, Boatwright looked for Barbour to continue with questioning, but he had left the hospital. Hurst claimed Barbour left to get something to eat, but Barbour said he was visiting a friend.

The State prosecuted Barbour on two counts of injury to a child, that he intentionally or knowingly caused serious bodily injury to C .S. "by administering to him or exposing him to a substance that contained morphine or heroin," and "by hitting or striking him with a wooden paddle or spoon or with a belt."

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 "consistent with being struck with an object ... at least six discreet [sic] little areas ... relative fresh bruises.... There were some bruises on his leg that ... raised clear concerns that there were older bruises as well."

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....