, KKHBHZ
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
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.
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, KKHBHZ
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
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