Dewberry, Stedmon

• Court: Court of Criminal Appeals of Texas
• Decided: June 17, 2015
• Docket: WR-83,308-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-83,308-01

EX PARTE STEDMON DEWBERRY, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 11F0763-005 IN THE 5TH DISTRICT COURT FROM BOWIE COUNTY

Per curiam.

ORDER

Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the

clerk of the trial court transmitted to this Court this application for a writ of habeas corpus. Ex parte

Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of murder and

sentenced to fifty years’ imprisonment. The Sixth Court of Appeals affirmed his conviction.

Dewberry v. State, No. 06-12-00025-CR (Tex. App. – Texarkana, September 6, 2012)(not designated

for publication).

Applicant contends that his trial counsel rendered ineffective assistance because counsel

failed to consult with a ballistics expert, failed to present testimony from eyewitnesses who would 2

have supported the theory that someone other than Applicant fired the fatal shot, failed to object on

the basis of hearsay when the State introduced out-of-court statements of eyewitnesses, and failed

to contact and present testimony from character witnesses during the punishment stage.

Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington,

466 U.S. 668 (1984); Ex parte Patterson, 993 S.W.2d 114, 115 (Tex. Crim. App. 1999). In these

circumstances, additional facts are needed. As we held in Ex parte Rodriguez, 334 S.W.2d 294, 294

(Tex. Crim. App. 1960), the trial court is the appropriate forum for findings of fact. The trial court

shall order trial counsel to respond to Applicant’s claims of ineffective assistance of counsel.

Specifically, trial counsel shall state why he did not consult with a ballistics expert or call

such an expert to testify at trial. Trial counsel shall state whether he was aware of the existence of

eyewitnesses Ozeal Floyd and Sherrod Dawson, and if so, why he did not call them to testify on

Applicant’s behalf. Trial counsel shall state why he did not make hearsay objections when the State

introduced out-of-court statements from witnesses Tawakkia Wrigtner, Brandon Antwine, Demitrick

Nard, Stemond Abdullah and Joseph Hawkins. Finally, trial counsel shall state whether he obtained

the names and contact information of potential character witnesses Rickey D. Greene, Praise Greene,

Debra Nevels and Susie Warren, and if so, why he did not call them to testify on Applicant’s behalf

at punishment. The trial court may use any means set out in TEX . CODE CRIM . PROC. art. 11.07, §

3(d). In the appropriate case, the trial court may rely on its personal recollection. Id.

If the trial court elects to hold a hearing, it shall determine whether Applicant is indigent.

If Applicant is indigent and wishes to be represented by counsel, the trial court shall appoint an

attorney to represent Applicant at the hearing. TEX . CODE CRIM . PROC. art. 26.04.

The trial court shall make findings of fact and conclusions of law as to whether the 3

performance of Applicant’s trial counsel was deficient and, if so, whether counsel’s deficient

performance prejudiced Applicant. The trial court shall also make any other findings of fact and

conclusions of law that it deems relevant and appropriate to the disposition of Applicant’s claim for

habeas corpus relief.

This application will be held in abeyance until the trial court has resolved the fact issues. The

issues shall be resolved within 90 days of this order. A supplemental transcript containing all

affidavits and interrogatories or the transcription of the court reporter’s notes from any hearing or

deposition, along with the trial court’s supplemental findings of fact and conclusions of law, shall

be forwarded to this Court within 120 days of the date of this order. Any extensions of time shall

be obtained from this Court.

Filed: June 17, 2015 Do not publish