, 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

4

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

