COURT OF CRIMINAL APPEALS
Att: ABEL ACOSTA, clerk _ ~ ` February 4, 2015 P.O. Box 12308 " Austin, Texas 78711
Re: RESPONCE To sTATE' S ANSWER TO APPLICATION §BEEF§EFYGZE§E$Q HABEAS coRPUS: cAUsE No. 11- 04-0468@9;,1§=¥OPQ';R|M|NALAPPEALS
COUNTS 1 and 11 FEB 12 2015
Dear Mr. Acosta', ADG¥ACOSTQ,CPSI'$(
_Enclosed please find Applicant's Pro Se Responce To State's Answer To Application For Post-Conviction Writ Of Habeas Corpus, please file _said ymotion iand bring it to_the attention of the Court in the above-Styled and numbered cause.
Applicant in lthis case did not receive state's answer in time to ‘wake_ a responce ibefore the trial court filed Findings of Conclusion of Law, that was ‘file the same day as the State's
answer, January 22, 2015.
Respectfully submitted/
/s/ 'Q/Q/Mé,é,@@/ér/\_
DARYL LEE BEESON, #1788958, pro se Michael Unit `
2664 FM 2054
Tennessee Colony, Texas 75886
I.L.A.
CAUSE NO. ll-O4-O4686-CR-(1) COUNTS I AND II
EX PARTE § IN THE DISTRICT COURT FOR § DARYL LEE BEESON, § THE ZZlSt JUDICIAL DISTRICT, Applicant § » - ` § MONTGOMERY COUNTY/ TEXAS
APPLICANT'S PRO SE RESPONCE TO STATE'S ANSWER TO APPLICATION FOR POST-CONVICTION WRIT OF HABEAS CORPUS
TO THE HONORABLE JUDGE OF THE DISTRICT COURT:
COMES NOW DARYL LEE BEESON, pro se Applicant, and moves this `Court to find that there'is a necessity for an evidentiary hear- ingf Or at least affidavits in resolving the factual disputes raise by the Applicant regrading ineffective assistance claims. There is a necessity for a fact-finding hearing, there is not ample evidence in the record for the Court to rule on the relief sought. The Applicant would respectfully show this Honorable Court the following:
I. NATURE OF THE CASE:
The Applicant was charged by indictment with two counts of aggravated sexual assault of a child, alleged to have occurred On or about January. 24, 20ll. The Applicant pled "not guilty" jury found him guilty and assessed his punishment at life impri- sonment in each count. The trial court ordered the sentences to run consecutively.
The Ninth Court of Appeals affirmed the Applicant's convictions
and sentences, which became final on October 28, 2013.
II. CLAIMS THAT SHOULD HAVE BEEN RAISED ON DIRECT APPEAL
(l)
In the State's answer to Applicant's writ of habeas corpus/ they state that grounds one, two, three and eight, should\;have been raised on direct appeal, and the Applicant has provided no compelling reason for the Court to address those claims, therefore, the claims are not cognizable on habeas review and should be denied.
Applicant has lFiled a Pro Se Motion Reguesting Leave To File A Supplement TO The Original Applications For Writ Of Habeas Corpus. In said motion Applicant is asking the court to add grounds nine,_ ten, eleven and twelve to his application for habeas, in order to properly address these issues that the State says that are not "cognizable" on habeas reviw.
Applicant is proceeding pro se in this matter, and moves this `Honorable Court to review the allegations in this pleading under the standard of review established by the United State Supreme _COurt in HAINES V. KENNER, 404 U.S. 519,92.S.Ct. 594,30 L.Ed.Zd 652 (1972). Applicant is requesting this Court to review these issues under ineffective assistance of appellate counsel, Wthere# fore, these claims would be cognizable, on habeas and should granted review.
III. INEFFECTIVE' ASSISTANCE OF COUNSEL:
Applicant will now respond to the State answer regrading ground .four, the> State now says the counsel was not ineffective due to his learning two-days before trial that the complainant list- ened to an internal voice. However, the complainant (Bethany) stated that -she had "Multiple Personalties" she described as
a `gifl 'named` "Emily" who exists "inside her head" not a voice.
(2)
'However,'”prosecutor states`"Additionally, we do not anticipate Bethany Cochran testifying until probably late Wednesday or possibly earllehursday; So they have sufficient time from Satur- day until the time that she testifies to be able to garner up enough evidence or whatever information they need to sufficiently cross examine her and successfully use this information at trial. So, for that reason the State is opposed to the motion for conti- nuance:"?(RR vol.II.pg.lé/lB)a-Tn the trial the State says there is enough time for counsel, but here in the answer to Applicant's habeas the State says the' trial 1counsel did not have enough time 'and therefoe, not ineffective, they should not be able to have it bought ways.
The State goes on to say, "Likewise, an ineffective-assistance claim based on trial counsel's failure to call a witness cannot succeed adsent a showing that the witness was avaiable to testify and that the witness's testimony would have benfitted the def- ense.: Then go on to state that the record shows that trial counsel did consult with an expert and sought advice on how to move forward: "I have vbeen dealing with our psychologist expertf and he again urges we' need to have either access to her psychiatric history records or access to her treatment provid- er to `investiate this further to see how this has implications for the defense-inl This is a 'due process arument, Your Honor} that this would be denying my client due process. (RR Vol.IL.pg. 9). Here in the _caseuiat bar,- Applicant was not provided the _ name of the expert counsel was dealing with¢ however, the record
is clear that counsel could have called this witness, and expert
witness would have shown she suffered from multiple-personality
<3)
disorder: (MPD), an ailment involving several distint "personali- ties" that takes turns dominating the same body.
AS seen in MARK A.'PETERSQN v; wlscoNSIN, three of the complain- ant's personalities were sworn in. The tesimony of the complainant claiming lto have' (MPD) could send someone else to prison, as in the case at bar/,o Circuit Judge Robert Hawley overturned Peterson's Nov. 8, `1990 conviction on sexual assault charges due to`fl the defense had not been allowed to have a psuchiatrist examine the woman before trial.
In ineffective‘ assistance's claims the_ court should add to the record by way of affidvits or an evidentiary hearing before a finding of facts and conclusion of law. Trial `counsel himself states in the record that "It is an ineffective assistance of
counsel issue." (RR Vol.II.pg.lO).
Iv. FAILURE To REQUEST 38.22 and 38-23 JURY INSTRncTIoNs:
In the fifth ground for relief, counsel was ineffective for failing to request jury instructions under articles 38.22 and 38.23 of the Texas Code_of Criminal Procedure5 Applicant was ents
gitled’ toto;ra request instructions, also for videotaped confess- `ions, art. 38.22 requires those warnings appear on the videotape. RESENDEZ 'v. ‘STATE,"256's.w;3d'669(tex;App.4Houston[14th Dist-] _2007). '
This issue was not if the Applicant was coerced in any way, during the interview the Applicant invoked his right to counsel and to come back ianother day; There became a factusl disputew in the evidence between' tesimony of Detective Funderburk and the video interview that was presented to the jury, if in fact
Applicant invoked his right to counsel and to stop the interview
`<'4_)
thus, invoking his right to remain silent, and to come back anoth- er ;day, `The cross-examiner cannot creat a factual dispute for
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COURT OF CRIMINAL APPEALS
Att: ABEL ACOSTA, clerk _ ~ ` February 4, 2015 P.O. Box 12308 " Austin, Texas 78711
Re: RESPONCE To sTATE' S ANSWER TO APPLICATION §BEEF§EFYGZE§E$Q HABEAS coRPUS: cAUsE No. 11- 04-0468@9;,1§=¥OPQ';R|M|NALAPPEALS
COUNTS 1 and 11 FEB 12 2015
Dear Mr. Acosta', ADG¥ACOSTQ,CPSI'$(
_Enclosed please find Applicant's Pro Se Responce To State's Answer To Application For Post-Conviction Writ Of Habeas Corpus, please file _said ymotion iand bring it to_the attention of the Court in the above-Styled and numbered cause.
Applicant in lthis case did not receive state's answer in time to ‘wake_ a responce ibefore the trial court filed Findings of Conclusion of Law, that was ‘file the same day as the State's
answer, January 22, 2015.
Respectfully submitted/
/s/ 'Q/Q/Mé,é,@@/ér/\_
DARYL LEE BEESON, #1788958, pro se Michael Unit `
2664 FM 2054
Tennessee Colony, Texas 75886
I.L.A.
CAUSE NO. ll-O4-O4686-CR-(1) COUNTS I AND II
EX PARTE § IN THE DISTRICT COURT FOR § DARYL LEE BEESON, § THE ZZlSt JUDICIAL DISTRICT, Applicant § » - ` § MONTGOMERY COUNTY/ TEXAS
APPLICANT'S PRO SE RESPONCE TO STATE'S ANSWER TO APPLICATION FOR POST-CONVICTION WRIT OF HABEAS CORPUS
TO THE HONORABLE JUDGE OF THE DISTRICT COURT:
COMES NOW DARYL LEE BEESON, pro se Applicant, and moves this `Court to find that there'is a necessity for an evidentiary hear- ingf Or at least affidavits in resolving the factual disputes raise by the Applicant regrading ineffective assistance claims. There is a necessity for a fact-finding hearing, there is not ample evidence in the record for the Court to rule on the relief sought. The Applicant would respectfully show this Honorable Court the following:
I. NATURE OF THE CASE:
The Applicant was charged by indictment with two counts of aggravated sexual assault of a child, alleged to have occurred On or about January. 24, 20ll. The Applicant pled "not guilty" jury found him guilty and assessed his punishment at life impri- sonment in each count. The trial court ordered the sentences to run consecutively.
The Ninth Court of Appeals affirmed the Applicant's convictions
and sentences, which became final on October 28, 2013.
II. CLAIMS THAT SHOULD HAVE BEEN RAISED ON DIRECT APPEAL
(l)
In the State's answer to Applicant's writ of habeas corpus/ they state that grounds one, two, three and eight, should\;have been raised on direct appeal, and the Applicant has provided no compelling reason for the Court to address those claims, therefore, the claims are not cognizable on habeas review and should be denied.
Applicant has lFiled a Pro Se Motion Reguesting Leave To File A Supplement TO The Original Applications For Writ Of Habeas Corpus. In said motion Applicant is asking the court to add grounds nine,_ ten, eleven and twelve to his application for habeas, in order to properly address these issues that the State says that are not "cognizable" on habeas reviw.
Applicant is proceeding pro se in this matter, and moves this `Honorable Court to review the allegations in this pleading under the standard of review established by the United State Supreme _COurt in HAINES V. KENNER, 404 U.S. 519,92.S.Ct. 594,30 L.Ed.Zd 652 (1972). Applicant is requesting this Court to review these issues under ineffective assistance of appellate counsel, Wthere# fore, these claims would be cognizable, on habeas and should granted review.
III. INEFFECTIVE' ASSISTANCE OF COUNSEL:
Applicant will now respond to the State answer regrading ground .four, the> State now says the counsel was not ineffective due to his learning two-days before trial that the complainant list- ened to an internal voice. However, the complainant (Bethany) stated that -she had "Multiple Personalties" she described as
a `gifl 'named` "Emily" who exists "inside her head" not a voice.
(2)
'However,'”prosecutor states`"Additionally, we do not anticipate Bethany Cochran testifying until probably late Wednesday or possibly earllehursday; So they have sufficient time from Satur- day until the time that she testifies to be able to garner up enough evidence or whatever information they need to sufficiently cross examine her and successfully use this information at trial. So, for that reason the State is opposed to the motion for conti- nuance:"?(RR vol.II.pg.lé/lB)a-Tn the trial the State says there is enough time for counsel, but here in the answer to Applicant's habeas the State says the' trial 1counsel did not have enough time 'and therefoe, not ineffective, they should not be able to have it bought ways.
The State goes on to say, "Likewise, an ineffective-assistance claim based on trial counsel's failure to call a witness cannot succeed adsent a showing that the witness was avaiable to testify and that the witness's testimony would have benfitted the def- ense.: Then go on to state that the record shows that trial counsel did consult with an expert and sought advice on how to move forward: "I have vbeen dealing with our psychologist expertf and he again urges we' need to have either access to her psychiatric history records or access to her treatment provid- er to `investiate this further to see how this has implications for the defense-inl This is a 'due process arument, Your Honor} that this would be denying my client due process. (RR Vol.IL.pg. 9). Here in the _caseuiat bar,- Applicant was not provided the _ name of the expert counsel was dealing with¢ however, the record
is clear that counsel could have called this witness, and expert
witness would have shown she suffered from multiple-personality
<3)
disorder: (MPD), an ailment involving several distint "personali- ties" that takes turns dominating the same body.
AS seen in MARK A.'PETERSQN v; wlscoNSIN, three of the complain- ant's personalities were sworn in. The tesimony of the complainant claiming lto have' (MPD) could send someone else to prison, as in the case at bar/,o Circuit Judge Robert Hawley overturned Peterson's Nov. 8, `1990 conviction on sexual assault charges due to`fl the defense had not been allowed to have a psuchiatrist examine the woman before trial.
In ineffective‘ assistance's claims the_ court should add to the record by way of affidvits or an evidentiary hearing before a finding of facts and conclusion of law. Trial `counsel himself states in the record that "It is an ineffective assistance of
counsel issue." (RR Vol.II.pg.lO).
Iv. FAILURE To REQUEST 38.22 and 38-23 JURY INSTRncTIoNs:
In the fifth ground for relief, counsel was ineffective for failing to request jury instructions under articles 38.22 and 38.23 of the Texas Code_of Criminal Procedure5 Applicant was ents
gitled’ toto;ra request instructions, also for videotaped confess- `ions, art. 38.22 requires those warnings appear on the videotape. RESENDEZ 'v. ‘STATE,"256's.w;3d'669(tex;App.4Houston[14th Dist-] _2007). '
This issue was not if the Applicant was coerced in any way, during the interview the Applicant invoked his right to counsel and to come back ianother day; There became a factusl disputew in the evidence between' tesimony of Detective Funderburk and the video interview that was presented to the jury, if in fact
Applicant invoked his right to counsel and to stop the interview
`<'4_)
thus, invoking his right to remain silent, and to come back anoth- er ;day, `The cross-examiner cannot creat a factual dispute for
purposes of art. 38§23(a), it is only the answers that are evide-
nce asv was the video interview that created the dispute. MADDEN,
242 S.W,Bd at 514i(footnotes omitted). Thus, because there was
.al factual dispute in the evidence Applicant is entitled to jury
instruction. under articles 38.23(a), and 38.22, sec. 7.
v. FAILURE7T0 INvoKE`THE RiGHT To_coNFRoNT_THE PERsoN INDIsE THE coMPLAINANT's HEAD:
In lthej sixth ground for relief} trial counsel was ineffective for his failure to 'invoke his right to confront "Emily." The complainant (Bethany) stated that she had "Multiple Personalities" (each ¥functioning as a distinct entitY)Applicant argues that it was "emily" that he "consensual sex" with not Bethany. Bethany says she rememberedl that she "Zoned Out" and laid down on her side of the Applicant[s' bed. The complainant she "Zones Out" multiple timesr ewery \Uay1 s®metimes for long periods of time. (RR Vol.VI.pg.49). She doesn't remember what happens during "Zone- ing-Out", '"I could ber just in there looking at a clock and a second later`it`would be like three hours later." (RR Vol.vI.pg. 48).
The evidence is clear that the_complainant "Zoned-Out" that night and wit was "Emily" that should have been questioned, this failure by trial- counsel short-circuited the entire process. The complainant did what she did that night because "Emily" told her to, she was realy down that night and depressedw and didn't care what happened to her that night, and had tried to
commit suicide that night, before she got into the car with
the Applicant. (RR Vol.VI.pg.Sl).
<_5)
If the- complainant does not do what "Emily"-says she gets realy mad at her. "Emily" tells her to do a mixture of odd and different things and bad things that aren't good for her. (RR n Vol.Vl.pg.40-4l). "Emily" was never questioned, as to ;being under the threat of any force nor was there ever a deadly weapon exhibited. Applicant was denied effective assistance of counsel for counseler's failure to invoke his right to confrontation
of,the true complainant "Emily".
VI- F-AILURE TO IMPEACH CHERYL HULLEN'S ' TESTIMONY DURING PUNISHMENT
W»In the seventhv ground for relief, counseler was ineffective for his failure to impeach Cheryl Mullen, she testified about an assault charge she filed against the Applicant a few years before the events ‘of this case occurred. Counseler failure to use an affidavit executed by Scott Warren George on March 131 2008, which Mullen admitted to lying about the assault shortly after it occurred. (Memorandum at Appendix A). Counseler should subpoenaHSobtt Warren George to testify to what was said in ;ie his affidavit in order to impeach Mullen's very daming testimony
Mullen had~ filed assault charges against the Applicant years before the events of this case, however, her testimony was more of a charge of sexual assault and is as follows: "Well, we got into an argument that' day. Mr. Beeson got very irate with me overl the fact that I would not perform oral sex. And because of that, he threw me against the TV, he choked me, and he pulled a shotgun on me threating my life if I did not perform those duties." (RR Vol.VII.pg.B).
However, in the police report that was filed in that case
(6)
Mullen states the argument was over drugs not over oral sex. Counseler had said report but again failed to impeach her testim- ony. Counseler `also knew that the prosecution had find Mullen the night before_ she testified in a Motel with a known drug dealer, but again failed to put this to the jury.
Counseler also failed to impeach Mullen under TEX.R.EVID.€OQ, Applicant did identify those convictions in his memorandum at appendix_§_. When counsel asked Mullen of those convictions she lie and said that it was not her in_ those conviction, at that counseler should ‘have used all means at hand to impeach her testimony, however, failed to do so. Mullen's testimony is where the State findlly put in the minds of_the jury that there really was a gun in this case.
The complainant was led into mentioning a gun by Sergeant Funderburk, due to the fact that Applicant had told him about the assault charges with Mullen. No gun was ever found by law lenforcement during their seach lof Applicant's residence. Also stated by Scott Warren George in his affidavit there never was a gun at Applicant's house back when Mullen had made the charges aginst the Applicante However, Mullen's testimony led the jury to believe that there really was a gun.
Applicant confessed to consensual sex »with the complainant however, did not threaten her with a gun forcefully rape her. Sheriff Gary Fruge stated "I saw that her hair and cloths were disheveled." However, she stated, "I cut myself" also she says the three small acute cuts to her lower leg where she states, "I scratched my mosquits bites really hard.@ (RR Vol.IV.pg.197).
There is a reasonable probability this testimony caused Applic-
(7)
ant to be sentenced to more time, even one more day has constitu- tional meaning. Therefore, this failure to impeach Mullen's 'testimony violated Applicant's Sixth Amendment Right to effective Jassistance of counsel.
Thus, the Applicant has shown that trial counsel was deficient, and there is a reasonable probability that the outcome of his trial would have been different_ but for counseler's errors. Applicant's claim of .ineffective assistance of counsel is with merit, and his fourth, fifth, sixth, and seventh grounds for
relief should be granted.
VII-
THEREFORE, this Court should find that there is a necessity for a fact-finding _hearing, to adequately address Applicant's allegations, or at least affidavits from counsel, there inis tnot ample evidence in-the record for this Court to rule on the reliefv sought, in claims of ineffectiveness the court should hear from counsel, before entering appropriate findings of fact and conclu- sion of law.
Applicant filed these applications for writ of habeas corpus pursuant to article ll.O7 of the Texas Code of Criminal Procedurep on ’December 22, 2014; Hewever, the state aia not file their answer to application for post-conviction writ of habeas corpus until January l22, 2015; Therefore the State's answer was filed untimely pursuant to article ll.O7 of the Texas Code of Criminal Procedure/ rand should `be disregarded, ‘and this Court should make‘ its own fact-finding of law, and recommend to the Court
of Criminal‘Appeals this habeas should be granted.
(8)
Respectfully\submitted,
/S/ UWMUU /SMQW
DARYL LEE BEESON’
#1788958, pro se
Michael Unit 2664 FM 2054
Tennessee Colony,
Texas 75886
_ vIII. cERTIFIcATE oF sERvIcE
This is ito
certify‘ that on February 4, 2015, the original Applicant's Pro Se Responce To State's Answer To Application For Post-Conviction Writ Of Habeas Corpus, has been forwarded to Abel Court of Criminal Appeais at P.O..
Box 12308, Austin, Texas 78711,
Acostay` clerk of the
by U.S. Mail.
Respectfully submitted,
,/S/
C/ DARYL LEE BEESON, #1788958' Michael Unit 2664 FM 2054 Tennessee Colony, Texas 75886
pro se
(9)