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11 BRODEN, MICKELSEN HELMS & SNIPES LLP FILED FOR RECORfi 2015 JUN 26 PM J: OS *Board Certified, Criminal Law· Texas Board of Legal Specialization *Board Certified, Criminal Appellate Law· Texas Board of Legal Spectali' · A team approach to criminal defense F. Clinton Broden* Mick Mickelsen• Michael Snipes
June 24, 2015
Bowie County District Clerk 710 James Bowie Drive New Boston, Texas 75570-3512
Dear District Clerk:
Please find the original Supplemental Memorandum of Law in Support of Application for Writ of Habeas Corpus Pursuant to Tex. Code Crim. P. Art. 11.07.
I have also enclosed, along with a self-addressed, stamped envelope, one extra copy of each for file stamping.
If you have any questions or concerns please feel free to contact us at the number below. Thank you for your assistance.
Sincerely,
Enclosures (2) Cc w/ Enclosure: Bowie County District Attorney's Office 710 James Bowie Drive New Boston, Texas 75570-3512
2600 State Street • Dallas, Texas 75204 • Tel. (214) 720-9552 • Fax (214) 720·9594 www.DallasCriminaiLawyers.com No. 11F0763-005-A r:·ILEO FOR RECORU 201~ JUN 26 PH J: 05 EXPARTE ) 5th DISTRICT COURT ) ___________________ STEDMON DEWBERRY ) ) BOWIE COUNTY, TEXA
SUPPLEMENTAL MEMORANDUM OF LAW IN SUPPORT OF APPLICATION FOR WRIT OF HABEAS CORPUS PURSUANT TO TEX. CODE CRIM. P. ART.ll.07
I. INTRODUCTION
As noted in Stedmond Dewberry's Memorandum of Law in Support of
Application for Writ ofHabeas Corpus Pursuant to Tex. Code Crim. P. Art. 11.07, the
sole focus of the trial in this case was the question of who shot, Latasha Antwine.
Was it Mr. Dewberry, as repeatedly argued by the State, or was it Brioni Dansby or
Brandon Antwine?
In his Application, Mr. Dewberry argued, inter. alia, that he was denied
effective assistance of counsel when his trial attorney failed to consult with, retain
and call as a witness a ballistics expert. Indeed, Mr. Dewberry's trial counsel had
submitted an affidavit stating that the only reason he did not retain a ballistics expert
was because of cost. See Attachment 1. 1
The United States Court of Appeals for the Fifth Circuit has held several times
1 The Court of Criminal Appeals has made clear that an attorney can be found to be ineffective when he declines to hire an expert for economic reasons even if that attorney is retained. See, e.g., Ex Parte Briggs, 187 S.W.3d 458 (Tex. Crim. App. 2005).
13 that it can constitute deficient performance for a trial attorney to fail to consult with
and present the testimony of a ballistics expert in a case such as this. Williams v.
Thaler, 684 F.3d 597, 604 (5th Cir. 2012) ("It is uncontested here that trial counsel's
performance fell below an objective standard of reasonableness. Williams's counsel
failed to obtain any independent ballistics or forensics experts, and was therefore
unable to offer any meaningful challenge to the findings and conclusions ofthe state's
experts .... "); cert. denied, 133 S.Ct. 866 (2013); Draughon v. Dretke, 427 F.3d 286,
295-97 (5th Cir. 2005) (State habeas court unreasonably applied settled federal law in
holding that trial counsel had not been ineffective in failing to obtain forensic
examination ofpath of fatal bullet.), cert. denied, 547 U.S. 1019 (2006); Soffar v.
Dretke, 368 F.3d 441, 478-79 (5th Cir. 2004) (Trial counsel was found ineffective
where he "failed to consult with a ballistics expert" even though the physical crime
scene evidence was a key issue in the case). 2
II. RESULTS OF BALLISTIC/DNA TESTING
Over the State's objection, this Court ordered the release of all the ballistic
evidence in this case for scientific testing. Included among the items released was a
bullet fragment identified by the State in its crime scene investigation as CSE-2 and
2 Likewise, the Court of Criminal Appeals has acknowledged that a trial attorney's failure to present the testimony of a ballistics expert could constitute ineffective assistance of counsel when it remanded a case for further factual development on this issue. Ex parte Vargas, 2006 WL 3086217 (Tex. Crim. App. Nov. 1, 2006).
14 at trial as State's Exhibit 66. Ballistics expert Richard Ernest was first able to
determine that State's Exhibit 66 was a .40 caliber bullet. See Attachment 2. Mr.
Ernest was able to remove biological material from this .40 caliber bullet. !d. This
biological material was later sent to Cellmark Forensics for testing. ld. Although
Cellmark did not have a sample of the DNA from the female victim in this case,
Cellmark did confirm that the biological material from the .40 caliber bullet contained
female DNA. See Attachment 3. Significantly, it was undisputed at trial that Mr.
Dewberry was firing a 9mm weapon and Brioni Dansby was frring a .40 caliber
weapon. 3 Moreover, the State actually argued in its closing that it was "common
sense" that CSE-2/Exhibit 66 came from Dansby's gun. See November 3, 2011
Transcript at 50.
In light of this finding, Mr. Dewberry submits that his trial counsel did, in fact,
afford him ineffective assistance of counsel because of his failure to undertake
scientific testing of the ballistics evidence in this case. The knowledge that the .40
caliber bullet contained traces of female DNA raises "a reasonable probability" of a
different result had this information been made known to the jury. Strickland v.
3 Moreover, according to the State's crime scene diagram, this bullet was located between where Brioni was firing and where Mr. Dewberry was firing but it was located significantly closer to Mr. Dewberry further indicating it was shot by Brioni toward Mr. Dewberry. 3
15 Washington, 466 U.S. 668, 694 (1984). 4 Indeed, Mr. Dewberry submits that this
knowledge alone is sufficient to undermine the confidence in the verdict and sentence
in this case. Alternatively, it justifies a comparison ofthe victim's DNA, if available,
to the DNA removed from Exhibit 66 and/or a ballistic comparison between State's
4 Strickland defines a ..reasonable probability" as "a probability sufficient to undermine confidence in the outcome." Id. at 694. Strickland itself expressly rejected an "outcome determinative standard" requiring the defendant to show that counsel's deficient conduct "more likely than not altered the outcome" of the case. Strickland, 466 U.S. at 693-94 (1984). Instead, "[t]he result of a proceeding can be rendered unreliable, and hence the proceeding itself unfair, even if the errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome." I d. Thus, the "reasonable probability" standard - a probability sufficient to wderrnine confidence in the outcome - is a less onerous burden than even the preponderance of the evidence standard. Strickland makes this clear:
[W]e believe that a defendant need not show that counsel's deficient conduct more likely than not altered the outcome in the case. This outcome-determinative standard has several strengths. It defines the relevant inquiry in a way familiar to courts, though the inquiry, as is inevitable, is anything but precise. The standard also reflects the profowd importance of finality in criminal proceedings. Moreover, it comports with the widely used standard for assessing motions for new trial based on newly discovered evidence. See Brief for United States as Amicus Curiae 19-20, and nn. 10, 11. Nevertheless, the standard is not quite appropriate.
Even when the specified attorney error results in the omission of certain evidence, the newly discovered evidence standard is not an apt source from which to draw a prejudice standard for ineffectiveness claims. The high standard for newly discovered evidence claims presupposes that all the essential elements of a presumptively accurate and fair proceeding were present in the proceeding whose result is challenged. An ineffective assistance claim asserts the absence of one of the crucial assurances that the result of the proceeding is reliable, so finality concerns are somewhat weaker and the appropriate standard of prejudice should be somewhat lower. The result ofa proceeding can be rendered unreliable, and hence the proceeding itselfunfair, even ifthe errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome.
Id. at 693-94 (citation omitted) (emphasis added). 4
16 Exhibit 66 and Dansby's .40 caliber gun.
Respectfully submitted,
F. Clinton Broden Tx. Bar 24001495 Broden, Mickelsen, Helms & Snipes 2600 State Street Dallas, Texas 75204 214-720-9552 214-720-9594 (facsimile)
Attorney for Applicant Stedmon Dewberry
17 CERTIFICATE OF SERVICE
I, F. Clinton Broden, certify that, on June 24, 2015, I caused a copy of the
above document to be served via first class mail, postage prepaid, on:
Bowie County District Attorney's Office 710 Bowie Drive New Boston, Texas 75570-3512
F. Clinton Broden
18 ATTACHMENT 1
• <' 19 :
AFFIDAVIT OF JOHNNY P• .ARNOLD
Jolmny P. Arnold, being at least eighteen years of age, pursuant to Texas Civil Practice and
Remedies Code§ 132.001, deposes and states as foJJows:
1. I have been license to practice law in the State of Texas since 1977.
2. I was retained to represent Stedmon Dewbmy against murder charges brought in the Fifth District Court in case number 11 F0763..00S
3. The simple fact is that the Dewberry fiunily could not afford to hire a ballistics expert so I did not obtain an expert. I even had to cut my fee so they could afford to hire an appellate attorney.
My name is Johnny P. Arnold, my date ofbirtb is November 11, 1949, and my address is
4015 N. Stateline Avenue, Texarkana, Texas 77503. I declare under penalty of perjury that the
foregoing is true and correct.
Executed in Bowie County, State of Texas, on the /5 day May .2014
10HNNY P. ARNOLD
20 ATTACHMENT 2
21 No. __________________ ORIGlN.\L EX PARTE ) 5th DISTRICT COURT ) STEDMON DEWEBERRY ) BOWIE COUNTY, TEXAS
AFFIDAVIT OF RICHARD N. ERNEST
Richard N. Ernest, being at least eighteen years of age, deposes and states as
follows:
1. I am an expert in the field of forensic ballistics and the reconstruction of shooting scenes. I have been in this field since 1977 and have worked at the Georgia Bureau oflnvestigation and the Tarrant County Medical Examiner's Office. I am a member of several professional organizations and a Distinguished Member of the Association of Firearms & Toolmarks Examiners. I have authored several papers in these areas. I have worked on well over 10,000 firearms related cases including numerous cases involving shooting scene reconstructions. I have testified in state, federal and military courts throughout the nation and believe I have offered testimony in over I ,000 cases. My resume is attached to this affidavit.
2. As per this Court's order, I was provided with what purported to be all bullets, bullet components and fragments related to this case. I was provided with seven items. I noted that it does not appear that I was provided CSE-1 5 which was allegedly a bullet found at the crime scene. Likewise, I was not provided CSE-13 which was described as a copper bullet jacket removed from a white Mercury Grand Marquis.
3. Nevertheless, included in the material I received was a bullet identified by the State in its crime scene investigation as "CSE-2." CSE- 2 was located in the vicinity of where Mr. Dewberry was alleged to have been standing during the incident in question. In my internal notes I refer to CSE-2 as Item 2A.
22 4. Based upon my examination, I have concluded that CSE-2/Item 2A was fired from a .40 caliber weapon. My understanding is that it was undisputed that, during the incident, Mr. Dewberry was firing a 9mm weapon and Brioni Dansby was firing a .40 caliber weapon.
5. I determined that the .40 caliber bullet identified as CSE~2/Item 2A contained trace evidence. I removed a sampling of this trace evidence and packaged it in an epp. tube and envelope and labeled the package Item 2B. At the direction ofF. Clinton Broden I then sent Item 2B by overnight delivery to Cellrnark Laboratories for further testing.
My name is Richard N. Ernest, my date of birth is o2..fti.h 151 , and my address f[
lS 'o5t> -,:. LA,JcA'Y[S"- A~~'f .fi~r ~~m,:r'l ..,,.,2- I
declare under penalty of perjury that the foregoing is true and correct.
Executed in '1:Au~t.w:r County, State on£&\-s ,onthe qi_ day April, 2015.
1?1J 1{. Y--· RICHARD N. ERNEST
23 . .
ATTACHMENT 3
24 •Cellmlrk 13988 DiplollUit Dr. Suite 100
~FORENSICS Dallas TX 75234 Phone: 1-800-752-2774 ........................... ..... " Report of Laboratory Examination Fax: 214-271-8322
Aprill4, 2015 Supplemental- FR15-0025-A F. Clinton Broden Broden, Mickelsen, Helms & Snipes 2600 State Street Dallas, TX 75204
CELLMARK FORENSICS NO: FRlS-0025 AGENCY CASE NO: 2014-0423-CRD ADD'L AGENCY NO: N/A EXHIBITS
Client Item CF Item Received Item Description PCR 2014-0423..CRD-001-2B FRIS-0025-01 1/30/2015 Trace Evidence y
RESULTS DNA testing using the polymerase chain reaction (PCR) and the MiniFiler™ STR Amplification Kit was perfonned on Item 01. The loci tested and the results obtained for each tested sample are listed in Table 1 (see attachment).
DNA testing using the polymerase chain reaction (PCR) and the AmpFlSTR Identifiler PiusTM Amplification Kit was performed on Item 01. The loci tested and the results obtained for each tested sample are listed in Table 2 (see attachment).
This report supplements Cellmark Forensics' Laboratory Report FRIS-0025 dated February 25, 2015.
CONCLUSIONS
FRIS-0025-01.01.1 The partial DNA profile obtained from the trace evidence is consistent with originating from an unknown female. Comparison to a reference sample(s) will be made upon request.
DISPOSITION In the absence of specific instruction, evidence will be retmned to the submitting agency by Federal Express or another appropriate carrier.
Cellmark Forensics 201 ~23-CRD I FR15...(}()2S-A Accredlled by the American Society of Crime Laborawry Director.s/Laboratory Accreditation Board· IntemaJjonaJ 1 of22s ·····-·-··········- -------------------- ·.
REVIEW The results described in this report have been reviewed by the folio Technical Analyst: Reviewer: ratmy Director
Proceckuv used in tile analysis of this ~ase adhere to the Quality ASSUilloce Sranclartli for FORDSic DNA Ttsting Laboratories. CeUmarlc. Forcosics is accredited by the American Society of Crime Laboralory Direct01'SIL.abonltoJY Accreditation Boanl. Tho row!Ja io thia ~on relate oaly to tllo item& tosted.
April 14, 201S Ce/Jmark Fore~ics 2014-0423-CRDI FR 15-0025-A Accredited by the American Society ofCrime Laboratory Dlnctcm/Laboratory Accredil{ltiqn Board -lnt8matjonol 2 of226 ..
13988 Diplomat Dr. Suite 100 • ICellmark Report of Laboratory Examination Dallas TX 75234 Phone: 1-800-752-2774 ~FORENSICS ................. , ........... . Fax: 214-271-8322
llbC«p ~Tes111tg- 4/14/2015 Supplemental - FRIS-0025-A CELLMARK FORENSICS NO: FRlS-0025 AGENCY CASE NO: 2014-0423-CRD ADD'I, AGENCY NO: N/A
Table I MiDI Filer Sample Name ........ ...... ~ ....... Q c;)
i..... Q ~
~ '< ........aD - {l.l N Q ... {l.l
a 0\ :l ~ ... Q .... lrl
... ril Q -"" 0
t:J {,) ~ "" Trace Evidence 11,13 )()- X- 24- 27,29 11, 12 16, 18 11- 23- FRI S-0025-01.01.1 20 t 4-0423-CRD-001-28 I
X=Female -=Below 5tochastic threshold Additional peak(s) may be present below limit of detection. The results listed in the table do not depict intensity differences. Only alleles exceeding validated analysis threshold are included in table.
1\.l ..... Supplemental- FRlS-0025-A Accredited by the Ameriam Socifty of Crime LabQTQJory Directon!Laboratory Accreditati011 Board- 111/ematiortaJ I of 2 1 Cell11181'k Report of Laboratory Examination 13988 Diplomat Dr. Suite I 00 Dallas TX 75234 Phone: 1-800-752-2774 •
EFORENSICS Fax: 214-271-8322 •' IMoq) $iiKiellJTesllng GI'QVII 4/14/2015 Supplemental- FR15-0025-A CELLMARK FORENSICS NO: FRIS-0025 AGENCY CASE NO: 2014-0423-CRD ADD'L AGENCY NO: N/A
Table% ldentifiler Pin ..,... - --... ... Sample Name ..,on ....... - oc ~ = 0 on .... .... 1"'- 01 QO oc .... ~ 1"'- ...Do ~ < ~ ~ i..... ~ ...~.... i.... ~ Ill rn OD ril N ~ 8 .... I,D ~ ~ ~ .... ~ Q Q Q v = Q Q Q Cl _i Trace Evidence NR NR NR NR NR NR NR NR NR NR NR NR NR NR NR NR FRIS-002S-OLOLl 20 14-0423-CRD-001-28 I
--- - L__ -
X=Female NR = No Result The results listed in the table do not depict intensity differences. Only alleles exceeding validated analysis tlm:shold are included in table.
N 00
SuJiplemental - FR I 5-(){)2.5-A A.ccrediteri by tire American Society ofCrime LoboraJory Directors/Laboratory Accndilalion Boarri- lnternalioPIDI 2 of 2 ;-iLED FOR RECOHO No. 11 F0763-005-A ZO 15 AUG I 0 PM J: 31 STATE OF TEXAS
vs. :.:~~!BOWIECO X ------ J'JF.PII Y STEDMON DEWBERRY BOWIE COUNTY, TEXAS
ORDER SETTING HEARING ON DEFENDANT'S WRIT OF HABEAS CORPUS
The Court is of the opinion that the Defendant is entitled to a hearing on his writ of
habeas corpus. It is therefore ordered that a hearing is set for the 28th day of August, 2015 at
9:00 o'clock a.m. in the 5th Judicial District Courtroom located on the 2nd floor of the Bowie
County Courthouse, New Boston, Texas.
Signed and entered on the 3rd day of August, 2015.
Bill Miller, District Judge
'29 I! IIIIII IIII .::t·Lr·r, rno ; ! L. ;,I , \,'1 I cr:c·'ORO r\ '-
2ul5 AUG 17 AH 9: II Craig L. Henry - ;! . : \_,c! : ~- ..,. j
Gi3m l ••-_-_. I '...1 f '.
CLEH!~ BOWIE CO TX ATTORNEY AT LAW
Billy Fox Branson Bowie County District Clerk Bowie County Courthouse New Boston, Texas
Re: State of Texas vs. Stedmon Dewberry Cause No. 11F0763-005-A
Dear Billy:
Enclosed herewith please find an original and one (1) copy of Order Rescheduling Hearing on Defendant's Writ of Habeas Corpus. Please file the original, affix your file stamp to the copy and return same to my office.
By copy of this letter, I am serving a true and correct copy of the foregoing letter on Lauren Sutton, Assistant District Attorney for Bowie County via hand delivery - return receipt requested.
Thank you for your attention in this regard. Should you have any questions or concerns, please don't hesitate to call.
CLH/kf Enclosures Cc: Lauren Sutton- hand delivery- return receipt requested No. IIF0763-005-A 2[! 15 AUG 17 AM 9: 11
STATE OF TEXAS
vs. STEDMON DEWBERRY BOWIE COUNTY, TEXAS
ORDER RESCHEDULING HEARING ON DEFENDANT'S WRIT OF HABEAS CORPUS
The August 28th hearing previously set in this case is hereby reset for September II,
2015 @ 10: 00 a.m. in the 51h Judicial District Courtroom located on the 2"d floor of the Bowie
Signed and entered on the 6th day of August 2015.
31 RECEIPT FOR EXHIBITS~ CCP. 2.21 & TRC 75a
§ IN THE DISTRICT COURT § ../'(" -'}·1 • •- J Ic:o- R--, RVf:'.',:.·:· .-.:' .-. ;~r, ._ •··· ~- " ..
! ........ § STH JUDI~IA~rnf~~t PH J2: 27 § ..... v-o, ~ ~~~... § BOWIECO~I~r80~,11£CO.D:. I, L"lie P. Bat,., Court Reporter fo~ the 5th District Court, do here~/~< Branson, District Clerk in and for Bowie County, Texas, the following exhibits in the above numbered and styled cause:
Exhibits
1. 1. 2. 2. 3. 3. 4. 4. 5. 5. 6. 6. 7. 7. 8. 8. 9. 9. 10. 10. 11. 11. 12. 12. 13. 13. 14. 14. 15. 15.
~~ Court Reporter I, Billy Fox Branson, District Clerk, do hereby acknowledge receipt of the above-listed exhibits in the above numbered a:"d styled cause.
Dated this the rAA day of ~ 'zo1.5_. Billy Fox Branson, District Clerk Bowie Countyt Texas
, Deputy
32 ;:!LED FOH RECORD IN THE COURT OF CRIMINAL APPEALS OF TEXAS 2815 SEP It PH 3: 15 No. WR~83, 308-01
------------------------------------------~~?-~~~~~~~y MOTION FOR EXTENSION OF TIME TO MAKE FINDI CONCLUSIONS OF LAW
TO THE HONORABLE JUDGES OF SAID COURT:
On or about May 13, 2014, Applicant, Stedmon Dewberry, filed a Writ of Habeas
Corpus, followed by an Amended Writ of Habeas Corpus on July 21, 2014, asserting ineffective
assistance of trial counsel. On or about July 30, 2014, Applicant filed a Motion to Release Items
for Testing. The 5th District Court held a hearing on said Motion on September 11, 2014.
Thereafter, on September 23, 2014, the Court entered an Order for Scientific Testing, and on
October 21, 2014, the court entered an Order for evidence to be turned over to the Texarkana
Police Department and then to Forensic Ballistics Consultant and Laboratory in Ft. Worth, Texas
for testing and submission of a report. The Order further stated that upon the completion of
testing, the evidence should be returned to the Texarkana Police Department by overnight
delivery.
On or about June 18,2015, the Court of Criminal Appeals entered an Order directing the
District Court to make findings of fact and conclusions of law it deems relevant and appropriate
to the disposition of Applicant's claim for habeas corpus reliefv.ithin 90 days of the Order. The
Order further stated that an extension of time shall be obtained from the Court.
On or about JW1e 26, 2015, App1icant filed a Supplemental Memorandum of Law in
support of Application for Writ of Habeas Corpus, attaching the Affidavit of his ballistics expert,
and discussing the expert's findings. As a result of the ballistics testing performed by the expert,
a hearing was held on September ll, 20 15 to discuss the need for additional testing to determine
33 whether the biological matter allegedly found on a bullet matched the victim's DNA. The Court
ordered that the State take possession of the bullet in question and attempt to secure additional
DNA testing on the bullet or otherwise determine that no DNA matching the victim could be
found absent exhuming the victim. The Court has ordered the State to present a preliminary
determination to the Court within fourteen days of the September 11, 2015 hearing on (i)
whether comparative DNA samples can be obtained and (ii) the time frame tor conducting a
comparative DNA analysis if sample can be obtained.
Accordingly. until it is determined whether DNA testing may be performed, and if so,
until said testing is performed, the District Court cannot make findings of fact and conclusions of
law as additional forensic analysis is required.
To further complicate matters, the Court ordered the District Court to order trial counsel
to respond to Applicant's claims of ineffective assistance of counsel. Applicant's trial counsel is
deceased, and therefore. an affidavit responding to Applicant's ineffective assistance of counsel
claims cannot be obtained from trial counsel.
Therefore, the Court requests an extension of time to enter findings of facts and
conclusions of law in connection with Applicant's Application for Writ of Habeas Corpus to and
until a determination is made as to whether DNA testing can be performed, and if so, until such
times as testing is performed, a report is prepared and the Court has an opportunity to evaluate
said report and prepare its findings of fact and conclusions oflaw.
Signed this 11th day ofSeptember 2015.
Bill Miller,Judge 5th District Court of Bowie County
CCA No. WR-83, 308-01 Extension of Time Page2 34 CLERK'S CERTIFICATE
THE STATE OF TEXAS
COUNTY OF BOWIE
I, BILLY FOX, Clerk of the 5th District Court of Bowie County, Texas do hereby certify that the above and foregoing are true and correct copies of the originals as on file in my office.
GIVEN UNDER MY HAND AND SEAL OF THE SAID COURT at office in New Boston, Texas, this the on this the 16th day of September, 2015.
BILLY FOX, DISTRICT CLERK BOWIE COUNTY, TEXAS
\\
ori Caraway, Supervisor Criminal Department