Dean, Roger Dale ( 2015 )


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    Roger Dale Dean
    TDCJ No. 01068114; Mark W. Michael Unit
    2664 FM 2054, Tennessee Colony, Texas 75886-5000
    July 15, 2015
    RECEVED\N
    Abel Acosta, Clerk C@URTOFCRWMNALAPPEALS
    Court of Criminal Appeals of Texas _
    Post Office Box 12308 ' JUL 23 2015
    Capitol Station
    Austin, Texas 78711 pa k
    \ l P .`` § @T'
    RE: Ex parte Roger Dale Dean ‘L“B@°AUGS ’d
    Case-No; WR-83,113-02
    Trial Court No. 0852518-A
    183rd Judicial District Court'
    Dear Hon. Clerk:
    Enclosed for filing with the Court of Criminal Appeals of
    Texas is Applicant's Reply to State's Original Answer. Please file
    said document and bring it to the attention of the Court.
    Please note that this document is being sent directly to the
    Court because the trial court was ordered by the Court to forward
    the record. A copy of this reply has been served on the Harris
    County District Attorney and mailed to the trial court clerk.
    As always, thank you for your assistance in this matter.
    RO R DALE DEAN
    APPLICANT
    Cc: File
    Chris Daniel
    Harris County District Clerk
    P.O. Box 4651
    Houston, Texas 77210-4651
    Famaz Faiaz
    Assistant District Attorney
    Harris County District Attorney'S Office
    1201 Franklin Street
    Houston, Texas 77002
    `` No- wR-83,113-02
    TRIAL COURT NO. 0852518-A
    IN THE
    COURT OF CRIMINAL APPEALS OF TEXAS
    EX PARTE ROGER DALE DEAN,
    ;Applicant
    "On Application for a Writ of Habeas €orpus
    No. 0852518-A in the 183rd District Court
    Harris County,_Texas '
    APPLICANTFS REPLY TO
    STATE”S ORIGINAL``ANSWER
    TO THE HONORABLE COURT OF GRIMINAL APPEALS:
    Applicant, ROGER DALE DEAN, by way of Applicant's Reply to
    State's Original.Answer, replies as follows:
    I.
    Applicant agrees that he is in custody as stated by the State.
    Applicant further agrees that the procedural history is as stated
    by the State.
    f II.
    Applicant acknowledges the State's denial, but assures the
    Court that the facts of his claims are true. With the ability to
    conduct discovery and in a live evidentiary hearing, Applicant
    can develop the facts to support his claims. Absent either one,
    Applicant would be denied fair process. See Martinez v. Ryan,
    l
    
    132 S. Ct. 1309
    (2012); see also Trevino v- Thaler, 
    569 U.S. 1611
    (2013) (the recognized exception in Martinez applies to Texas be-
    cause of State's procedural.framework).
    Applicant acknowledges the State's position that the doctrine
    of laches can bar habeas relief. However, Applicant submits to the
    Court that the State's reliance on laches should be rejected be-
    cause (1) Applicant has not been appointed counsel in which to
    present his ineffective assistance of counsel claims for initial-
    review; (2) the State has not shown the Court how it would be
    materially prejudiced as a result of the delay; and (3) with the
    appointment of habeas counsel, Applicant will likely prevail on
    the merits.
    ln its answer, the State makes a bare assertion that it is
    unlikely the State would be able to locate all of its material
    witnesses in the event of'a retrial; The State does not show that
    it has tried to locate any witnesses or that any witnesses are
    unavailable;
    Applicant's trial counsel has submitted an affidavit and
    responded as ordered by the trial court; The State's assumption
    concerning Applicant”s trial counsel fails.
    Applicant agrees with the State that further factual invest-
    igation is necessary to determine the merit of the instant claims.
    Applicant suggests that he be appointed habeas counsel, that he
    be permitted to conduct discovery and that an evidentiary hearing
    be held in order to afford Applicant a full and fair opportunity
    to develop the facts.
    REPLY To THE APPLI€ANT'S FIRST, SECOND, AND FoURTH GRoUNDs:FOR
    RELIEF `` 4
    The State claims that the instant claims are record claims-
    which should have been raised on direct appeal and that said
    grounds for relief should be denied. However, with a full and fair
    opportunity to develop the facts of these claims, by being ap-
    pointed habeas counsel, being permitted to conduct discovery and.
    being granted a live evidentiary hearing, evidence would likely
    exist outside the appellate record. lt is only because Applicant
    has been denied fair process that the record has not been expanded.
    Applicant moves the Court to afford him fair process, at which
    time he would be capable of developing the facts to support his
    grounds for relief.
    REPLY TO THE APPLIGANTFSYTHIRD,_FIFTH) AND SIXTH GROUNDS FOR RELIEF 1
    Adnitted that the standard of review established in Strickland
    v. Washington, 
    466 U.S. 668
    (1984) controls the disposition of
    these claims. However, Applicant contends that the assistance of
    his trial counsel was ineffective and prejudice resulted.
    Failure to Strike Venire Members
    Applicant continues to assert that venire member Katherine
    Ellen Stinson was bias because she had been a victim of robbery,
    in which her friends were shot execution style. Any attempt by
    the State and Applicant's trial counsel to downplay this fact is
    unreasonable. \/ 4
    Concerning venire member Rose Marie Andrews, the State relies
    on a statement made prior to Ms. Andrews seeing Applicant writing
    down her son-in-law's name, who was an undercover narcotids officer.
    At that point, Ms. Andrwews became extremely upset. Knowing that
    Applicant had wrote down her son;in-law's name, Ms; Andrews was
    bias from that point on; She would then base her decisions on pro-
    tecting her son¥in-law,.not on the evidence presented in the case.
    Failure to lnvestigate'Medical‘Examiner‘ l
    ln its answer,.the State once again attempts to discredit
    the facts presented by Applicant. While Applicant admits to includ-
    ing evidence of Dr. Paul Wayne Shrode's lack of credentials that
    occurred after Applicant's trial, Applicant only included this
    evidence in order to further support the facts that Dr. Shrode was
    unqualified, in violation of Harris County's policy, misrepresented
    himself, and gave misleading testimony in an Ohio murder case. Each
    of these facts existed prior to Applicant's trial, which should
    have been investigated and discovered by Applicant's trial counsel.
    ln his affidavity trial counsel Danny K. Easterling.claims to
    have did a "thorough investigation of the autopsy report and the
    autopsy photos" prepared by'Dr; Shrode. He does not claim to have
    investigated Dr. Shrode and his qualifications, which is what was
    claimed by Applicant in his application. Mr. Easterling further
    claims that "the cause of death was not in dispute." While this is
    true, the manner in which the deceased was shot was in dispute. ltd
    was Dr. Shrode's misleading testimony that.discredited.Applicant's
    theory that there was a struggle over the gun, althoughgthe~deé{
    ceased had-powder burns on top of his hand.
    Here, the State does not address Applicant's claim head-on.
    lnstead, the State tries to focus the Court's attention on the
    evidence that occurred after Applicant's trial. Applicant asserts
    4
    that the facts of this claim are still controverted and unresolved.
    Therefore, Applicant requests that he be provided a full and_fair
    opportunity to develop the'facts.in a live evidentairy hearing.
    Concession of the Element of Intent
    Applicant acknowledges the State's argument that trial counsel
    made some statements regarding the intent that favor the State's
    position. However, the State cannot justify trial counsells com-
    ments made after the statements relied on by the State:
    Mr. Easterling: There is going to be some evidence-and
    'we will concede this-that suggest that
    maybe it was an intentional killing,
    'that possibly it was an intentional
    killing, or even probably that it was
    an intentional killing.
    (RR17=38). '
    Clearly trial counsel conceded intent. In fact, it was his
    very words: "we.will'concede'this;" There is no way to get around
    counsel's ineffectiveness;
    Rather than pointing the Courts in the direction of other
    comments concerning intent, the State should try to justify why
    trial counsel "concede[d] this." v
    Perhaps this is why the_State failed to include this issue
    in the State's Proposed Order for Filing Affidavit. Mr. Easterling
    has not addressed this issue, although it was raised as ineffective
    assistance..
    For the foregoing reasons; Applicant once again suggests that
    a live evidentiary hearing would assist the Court in resolving the
    controverted facts.
    In short, Applicant believes that for the foregoing reasons,
    controverted issues still exist that are material to the legality
    of his confinement. He asks'the Court to schedule a live evident-
    iary hearing at its earliest convenience in order to permit him a
    full and fair opportunity to develop the facts
    Dated July 15, 2015, Re;pee;:Z:/; ;:Zmitted,
    R0GEKVDALE DEAN
    APPLICANT '
    TDCJ No. 01068114
    Mark W. Michael Unit
    2664 FM 2054
    Tennessee Colony, TX 75886
    -CERTIFICATE OF SERVICE'
    l hereby certify that a true and correct copy of the fore-
    going reply has been served by placing same in the United States
    Mail, postage prepaid, on this 15th day of July, 2015, addressed
    to:
    Farnaz Faiaz
    Assistant District Attorney
    Harris County District Attorney's Office
    1201 Franklin Street
    Houston, Texas 77002
    DALE DEAN
    APP lCANT
    

Document Info

Docket Number: WR-83,113-02

Filed Date: 7/23/2015

Precedential Status: Precedential

Modified Date: 9/29/2016