                                                             WR-59,939-03
                                                                              WR-59,939
                                                            COURT OF CRIMINAL APPEALS
                                                                            AUSTIN, TEXAS
                                                            Transmitted 8/6/2015 4:53:27 PM
                                                              Accepted 8/7/2015 8:03:05 AM
                                                                             ABEL ACOSTA
                                                                                     CLERK
         IN THE TEXAS COURT OF CRIMINAL APPEALS
                      AUSTIN, TEXAS            RECEIVED
                                                        COURT OF CRIMINAL APPEALS
                                                               8/7/2015
                                                          ABEL ACOSTA, CLERK


                                        )
                                        )         Court of Criminal
EX PARTE TRACY BEATTY,                  )         Appeals No.
                                        )         WR-59,939-03
                APPLICANT               )
                                        )         Execution date:
                                        )         August 13, 2015
~~~~~~~~~-)


 APPLICANT'S RESPONSE TO STATE'S MOTION TO DISMISS
SUBSEQUENT APPLICATION FOR WRIT OF HABEAS CORPUS
    AND TO DENY REQUEST FOR STAY OF EXECUTION

     Applicant, Tracy Lane Beatty, respectfully asks this Court to deny

the State's motion to dismiss, authorize him to proceed on his second

application for writ of habeas corpus, and stay his August 13, 2015

execution.   The State's motion is non-responsive; misrepresents the

record and allegations contained in Mr. Beatty's application; and

concedes a critical fact demonstrating that Mr. Beatty has satisfied the

requirements for authorization under Section 5(a)(2) of Article 11.071 of

the Texas Code of Criminal Procedure.
A.    The State makes critical factual misstatements in its motion
      to dismiss.

      1.     This is Mr. Beatty's second application for writ of
             habeas corpus.

      Mr. Beatty would be remiss if he did not correct the State's

misrepresentation that his subsequent application, filed on August 4,

2015, is his third state habeas writ. See Motion to Dismiss at 2, 7-8. The

State claims that Mr. Beatty's first writ was filed on August 6, 2004,

while his direct appeal was pending. Id. at 2. This is false. Mr. Beatty

was still in trial on August 6, 2004. The jury did not answer the special

issues on sentencing and the trial court did not issue its judgment until

August 10, 2004. Mr. Beatty appears to have attempted to file a pro se

document in this Court on August 6, naming the trial judge as the

respondent. Mr. Beatty was denied leave to file the document. Thus, the

first application filed on Mr. Beatty's behalf pursuant to article 11.071

was filed by Jeff Haas on January 4, 2007. 1 This is Mr. Beatty's second

application filed under article 11.071.


1Article 11.071 "establishes the procedures for an application for a writ of habeas
corpus in which the applicant seeks relief from a judgment imposing a penalty of
death." Tex. Code Crim. Proc. art. 11.071 § 1 (emphasis supplied). As no judgment
existed at the time Mr. Beatty attempted to file the document, it could not be an
application filed under article 11.071.
                                        2
       Neither the convicting court nor this Court treated Mr. Beatty's

2007 application as his second application, or even addressed this

frivolous issue. The State's distortion of the record-the State described

Mr. Beatty's application as his third more than ten times in its thirty-

page motion-is misleading.

       2.    Mr. Beatty's application was filed one day before the
             deadline under this Court's Miscellaneous Rule 11-003.

       Furthermore, the State faults Mr. Beatty or filing what it twice

refers to as a "last minute" application. Motion to Dismiss at 10, 11. Mr.

Beatty's application was timely filed on August 4, 2015, a day before the

statutory deadline. 2 Miscellaneous Rule 11-003. Mr. Beatty could not

have initiated these proceedings during his federal habeas corpus

proceedings, which ended when the United States Supreme Court denied

Mr. Beatty's petition for certiorari on May 18, 2015.                   He filed his

application just twenty-two days after the State secured the warrant for

his execution, and two-and-a-half months after he finished litigating his




2Undersigned counsel sent a copy of the application to the trial court on August 4,
2015, via UPS Next Day. He has received notice that the delivery will not take place
until August 6, 2015, despite his best efforts to ensure its delivery on August 5, 2015.
He has, nonetheless, satisfied this Court's filing rules.
                                           3
federal habeas corpus remedies. This is expressly provided for under

Miscellaneous Rule 11-003.

B.     The State misconceives the legal basis under which Mr.
       Beatty asks this Court to authorize his application.

      The State's principal argument for dismissal, and the only

argument relevant to the question now before this Court, is that Mr.

Beatty has not satisfied the § 5(a)(l) standard to proceed on his second

writ because he has not demonstrated that the factual or legal bases for

the claims he now presents were unavailable at the time his first

application was filed.       Motion to Dismiss at 8-13.          The motion thus

addresses only subsequent claims filed under § 5(a)(l) and is therefore

non-responsive to Mr. Beatty's claims, which are presented under the

§ 5(a)(2) gateway.3

       The State quotes two cases for the proposition that Mr. Beatty

must show that the factual or legal bases for his claims were previously

unavailable before he may proceed on his application, arguing this is a

standard attendant to all § 5 applications. Motion to Dismiss at 10. But


s Mr. Beatty has also asked the Court to find that the ineffective assistance of state
habeas counsel in defaulting substantial ineffectiveness claims renders those claims
"previously unavailable" for § 5(a)(l) purposes. However, this is only in the
alternative to applying§ 5(a)(2).
                                          4
both of the cases cited, by their own terms, address only the standard

under § 5(a)(l), which is irrelevant to this case. In Ex parte Campbell,

225 S.W.3d 418 (Tex. Crim. App. 2007), the sentence preceding the text

quoted in the State's motion to dismiss states,

     [t]o satisfy Section 5(a)(l), a subsequent application must
     contain sufficient facts establishing that "the current claims
     and issues have not been and could not have been presented
     previously in a timely initial application or in a previously
     considered application filed under this article or Article 11.07
     because the factual or legal basis for the claim was
     unavailable on the date the applicant filed the previous
     application."

Id. at 421 (emphasis added). Similarly, the State is correct that in Ex

parte Staley, 160 S.W.3d 56 (Tex. Crim. App. 2003), this Court required

the applicant to demonstrate that the factual or legal basis of his claim

was not available when he filed his previous application. Because the

Court found the applicant failed to do so, it "dismiss[ed] the present

application for a writ of habeas corpus under Article 11.071, § 5(a)(l)[.]"

160 S.W.3d at 63 (emphasis added).

      The State's motion to dismiss asks this Court to apply an entirely

incorrect legal standard to Mr. Beatty's application, and then fails to

make any arguments that address the relevant legal standard.            Mr.


                                     5
Beatty's application states the applicable law in Section D of the

application, titled "Mr. Beatty should be authorized to proceed on this

application under Texas Code of Criminal Procedure Article 11.071,

Section 5(a)(2)."   The law requires that Mr. Beatty demonstrate

"sufficient specific facts establishing that by a preponderance of the

evidence, but for a violation of the United States Constitution no rational

juror could have found the applicant guilty beyond a reasonable doubt[.]"

TEX. CODE CRIM. PROC. art. 11.071, § 5(a)(2).

     The State has not argued that Mr. Beatty has failed to meet this

standard. Indeed, the State has conceded that Ms. McCarty's hearsay

testimony was material evidence that was necessary for the State to meet

its burden on the burglary charge.      See Motion to Dismiss at 14 (the

McCarty statement was "important to State case [sic]" and "served as the

basis for the underlying felony charges of Robbery and Burglary in the

indictment"). This concession is an explicit recognition by the State that

Mr. Beatty could not have been found guilty of capital murder without

Ms. McCarty's hearsay testimony. Thus, the State tacitly concedes that

the claims Mr. Beatty has presented about Ms. McCarty's testimony may

be appropriately authorized for further review under § 5(a)(2).
                                    6
C.    The State offers no reason for this Court to abstain from
      revisiting Ex parte Graves, and again misrepresents Mr.
      Beatty's argument.

      The State argues that Mr. Beatty recognized that he failed to meet

the requirements of Section 5(a), and therefore pursued an argument

under Ex parte Graves, 270 S.W.3d 103 (Tex. Crim. App. 2002), which is

patently false. See Motion to Dismiss at 12. Mr. Beatty has presented

specific facts demonstrating that each of his facially meritorious

constitutional claims satisfies Section 5(a)(2), because, individually and

cumulatively, it is more likely than not that but for these violations he

could not be convicted of capital murder.

     Nonetheless, Mr. Beatty asserts that the evidence that his initial

state habeas counsel was ineffective is so compelling, and that he has

demonstrated sufficient prejudice because of the likelihood of success on

the merits of the claims state habeas counsel forfeited, that this is the

appropriate case for the Court to reconsider its ruling in Ex parte Graves,

70 S.W.3d 103. The State's motion to dismiss offers no argument why

this Court should refrain from revisiting Graves. Instead, it points out

that the Court has not done so before now. Motion to Dismiss at 12.



                                     7
      This is an appropriate case through which to recognize an equitable

exception to Section 5. First, state habeas counsel conceded that he

merely overlooked Mr. Beatty's substantial guilt-phase ineffectiveness

claim. Second, Mr. Beatty has raised serious questions about whether he

is guilty of capital murder.   However, this Court need not reach the

Graves issue because Mr. Beatty has satisfied § 5(a)(2) and should be

allowed to proceed on that basis.

D.   Although it is premature for this Court to address the merits
     of Mr. Beatty's habeas claims, the State focuses more than
     half of its motion to dismiss on the argument that Mr.
     Beatty's habeas claims should be denied on the merits.
     Accordingly, Mr. Beatty will respond.

     At the current threshold stage, it is inappropriate for this Court to

make a final determination on the merits of the underlying claims for

relief presented in the subsequent application. See Ex parte Blue, 230

S.W.3d 151, 162-63 (Tex. Crim. App. 2007). However, because the State

has controverted the merits of all three claims using misleading factual

and legal analysis, Mr. Beatty will briefly respond to the State's

assertions.




                                    8
      1.    Ineffective assistance of direct appeal counsel.

      In his first claim for relief, Mr. Beatty has alleged that direct appeal

counsel was ineffective for failing to challenge the admissibility of

hearsay testimony from Ms. McCarty, specifically that Ms. Click told her

that she had allegedly asked Mr. Beatty to leave sometime before 4:00

p.m. on the day of the offense. Subsequent Application at 16-26. Direct

appeal counsel recognized that Ms. McCarty's testimony was improperly

admitted, and even argued as much in Mr. Beatty's challenge to the

sufficiency of the evidence. However, direct appeal counsel also falsely

instructed the Court that the hearsay testimony should have been, but

was not, objected to at trial. Operating on that assumption, he did not

raise a direct challenge to its admission. This was not the result of a

reasoned strategy to forfeit a meritorious claim, but the result of counsel's

misreading or failing to read the twenty-one pages of the trial transcript

in which the parties argued over the admissibility of Ms. Click's

testimony, during which trial counsel objected on hearsay grounds at

least three times.

     The State argues that Mr. Beatty's application should be dismissed

because the statement was admissible under a new theory. The State's
                                      9
argument is without merit, and furthermore irrelevant to direct appeal

counsel's ineffectiveness in forfeiting this issue because of a lack of

familiarity with the trial record.

              a.   The question whether the admission of the
                   statement was reversible error is premature.

     The State's argument on the admissibility of the McCarty's

testimony is premature in two respects. First, as discussed above, the

issue before the Court now is simply whether Mr. Beatty has met the

requirements of§ 5. Second, even once authorized, Mr. Beatty only need

show a reasonable probability of a different outcome on appeal. Ex parte

Santana, 227 S.W.3d 700, 704-05 (Tex. Crim. App. 2007). A reasonable

probability is less than a preponderance of the evidence.       Williams v.

Taylor, 529 U.S. 362, 405-06 (2000). He need not prove entitlement to

relief on the underlying appellate issue in order to be entitled to habeas

corpus relief on his claim. Indeed, if his habeas application is successful,

the remedy will be a direct appeal in which that issue is heard and

resolved by this Court. Ex parte Miller, 330 S.W.3d 610, 626 (Tex. Crim.

App. 2009).




                                     10
            b.      Notwithstanding its prematurity, the State's
                    argument for the admissibility of Ms. McCarty's
                    testimony misapplies evidentiary rules and
                    ignores the relevant facts in an effort to excuse
                    direct appeal counsel's failure to read or notice
                    the twenty-one pages of the trial record related
                    to trial counsel's objections to Ms. McCarty's
                    inadmissible hearsay testimony.

      The State's argument as to the admissibility of Ms. McCarty's

hearsay testimony ignores that the statement contained two levels of

hearsay, not one.     See Motion to Dismiss at 14-18. As noted in the

subsequent application, Ms. McCarty's testimony

      contained two layers of hearsay: (1) that Ms. Click had asked
      Mr. Beatty to leave and (2) that Ms. Click told Ms. McCarty
      that she had asked Mr. Beatty to leave. In order for Ms. Click's
      statement to Mr. Beatty to be considered for its truth, both
      layers of hearsay must fit into a statutorily enumerated
      exception to the rule against hearsay. TEX. R. EVID. 805.

Subsequent Application at 24. Nowhere in its motion to dismiss does the

State address the underlying hearsay-Ms. Click purportedly telling Mr.

Beatty to leave. Considering that no exception to that principal layer of

hearsay exists, and that the State has not even attempted to identify an

exception that does fit, this failure on the State's part ultimately defeats

its case.



                                     11
      The State suggests that the other layer of hearsay-Ms. Click's out-

of-court statement to Ms. McCarty-was admissible under both the state

of mind exception and as an excited utterance. Motion to Dismiss at 16-

17. The State's continued reliance on the state of mind exception is

misplaced. As explained in the subsequent application, the state of mind

exception does not permit "the introduction of 'a statement of memory or

belief to prove the fact remembered or believed."' Subsequent Application

at 24 (citing Gibbs v. State, 819 S.W.2d 821, 837 (Tex. Crim. App. 1991).

If such were the case, the rule against hearsay would be eviscerated. See

Norton v. State, 771 S.W.2d 160, 166 (Tex. App.-Texarkana 1989). Ms.

Click's statement to Ms. McCarty that she told Mr. Beatty to leave is

simply not a statement of her then-existing state of mind.

     Similarly, the State's assertion that the excited utterance exception

applies is misguided. Motion to Dismiss at 16-17. Despite the conceded

importance of this testimony to the State, it never even offered this

rationale as a basis of admission at Mr. Beatty's trial, with good reason;

while Ms. McCarty claimed that Ms. Click was stressed and crying

during their conversation, there was no indication in the record that this

was the spontaneous, impulsive type of statement that this exception
                                    12
allows. There is no indication Ms. Click was under the influence of a

"startling event or condition." TEX. R. EVID. 803(2). Indeed, Ms. McCarty

could not even guess how long prior to their conversation Ms. McCarty

told Mr. Beatty to leave, indicating that Ms. Click was in a state of

reflection, rather than a state of shock. The evidence introduced at trial,

that Ms. Click and Mr. Beatty argued every day, and the evidence

introduced in Mr. Beatty's application that Ms. Click told Mr. Beatty to

leave nearly every day, further undermine the State's argument that Ms.

Click was in the throes of a startling event when she once again told her

son to leave on November 25, 2003. Additionally, even if this Court were

inclined to agree with the State that Ms. Click's reflective statement to

Ms. McCarty was an excited utterance, there is no evidence that the

imbedded layer of hearsay is covered by this exception. 4

      Moreover, the Motion to Dismiss ignores the fact that appellate

counsel himself argued that the statement was inadmissible, see

Subsequent Application at 17, but yet failed to plead the issue as a



4The State also criticizes Mr. Beatty because "[h]e totally ignore[d]" that the evidence
was also offered and admitted under Texas Code of Criminal Procedure, Article 38.36.
Motion to Dismiss at 15. However, the State also concedes the irrelevance of its own
argument, because that Article does not operate as a hearsay exception. Id.
                                          13
ground of error on appeal, because he mistakenly believed it was not

objected to. The error was preserved; appellate counsel recognized that

the testimony was inadmissible; and every court (as well as now the

State) has recognized that the statement was necessary to sustain Mr.

Beatty's capital conviction.      Because trial counsel's objection was

preserved, and there is no legal basis for the statement's admission, Mr.

Beatty is entitled to proceed on the merits of this claim.

      2.   The State misreads Mr. Beatty's claim that trial
           counsel was ineffective for failing to investigate and
           present evidence showing he did not commit burglary.

     Mr. Beatty has alleged in his second claim that trial counsel was

ineffective for failing to investigate and present evidence that rebutted

the burglary charge. Subsequent Application at 26-37. The State claims

that "his sole support" for this claim is "based entirely" on trial counsel's

failure to present testimony from Ms. Wilkerson that Mr. Beatty did not

commit a burglary. Motion to Dismiss at 19. The State is mistaken. In

his subsequent application, Mr. Beatty presents ample new evidence that

was not presented at trial, including the affidavit of Aaron Bowers and

the testimony of multiple witness-none of whom testified or were even

interviewed by the defense-from his state evidentiary hearing.
                                     14
Subsequent Application at 32-35. All of this testimony, in addition to

Ms. Wilkerson's affidavit, supports the second claim for relief.

      The State also "finds it rather ironic" that some of this evidence is

similar to Ms. McCarty's testimony, which was inadmissible. Motion to

Dismiss at 19. Rather than being "ironic," trial counsel had a duty to

present evidence to combat Ms. McCarty's testimony. Counsel was aware

before opening statements that this evidence was going to be admitted

for its truth. After inadmissible evidence has been admitted, trial counsel

may "meet, destroy, or explain [the inadmissible evidence] by introducing

rebutting evidence" without waiving error. Leday v. State, 983 S.W.2d

713, 719 (Tex. Crim. App. 1998). Because this testimony was so critical

to the State's case, trial counsel had a duty to conduct reasonable

investigations and present evidence to rebut it. The evidence cited in the

subsequent application does just that. 5 Subsequent Application at 26-

37.




5 Absent Ms. McCarty's testimony, the evidence simply would have been insufficient
for a conviction and a directed verdict required.
                                       15
       3.    The State analyzes Mr. Beatty's claim that the State
             gave the jury a false impression under an incorrect
             legal theory.

       The State addresses Mr. Beatty's third claim, that the State gave

the jury a false impression of what Ms. Click asking Mr. Beatty to leave

actually meant, as if it were a claim alleging the State made an improper

closing argument. Motion to Dismiss at 27-29. However, Mr. Beatty

makes no such allegation. Instead, his argument is that new evidence

presented in his application shows that Ms. Click had repeatedly asked

Mr. Beatty to leave without actually withdrawing her consent for Mr.

Beatty to enter. 6 Subsequent Application at 37-45. Under the Texas

standard, regardless of whether the State had knowledge that they were

providing a false impression, such a claim can succeed. See Ex parte

Chabot, 300 S.W.3d 768, 770-71 (Tex. Crim. App. 2009). When the State

referred to the inadmissible hearsay from Ms. McCarty twenty-five

times, eight of which specifically were tied to the issue of consent, a false

impression was created. Subsequent Application at 41, 44-45.




6 The fact that this claim relies on .new evidence also demonstrates the State's
confusion when it referred to this claim as a record-based, direct appeal claim. Motion
to Dismiss at 11.
                                           16
                             CONCLUSION

     For the foregoing reasons, Mr. Beatty respectfully requests that

this Court deny the State's motion to dismiss, and stay his execution to

allow him to proceed on his facially meritorious constitutional claims, all

of which demonstrate it is more likely than not that he is innocent of

capital murder.



                                  Respectfully submitted,




                                  Thomas cott Smith
                                  State Bar Number 18688900
                                  120 South Crockett Street
                                  P.O. Box 354
                                  Sherman, Texas 75091-0354
                                  smithla w@airmail.net
                                  T: (903) 870-1446
                                  F: (903) 868-8686

                                  Attorney for Applicant,
                                  Tracy Lane Beatty




                                    17
                     CERTIFICATE OF SERVICE


      I hereby certify that on this, the 6th day of August, 2015, a copy of
this Applicant's Response to State's Motion to Dismiss Subsequent
Application for Writ of Habeas Corpus and to Deny Request for Stay of
Execution was electronically served on the attorney for The State,
Michael J. West, Assistant Criminal District Attorney, 100 N. Broadway,
4th Floor, Tyler, Texas 75702, at mwest@smith-county.com.




                                    18
