                                                                                 WR-84,299-01
                                                                COURT OF CRIMINAL APPEALS
                                                                                AUSTIN, TEXAS
                                                             Transmitted 12/21/2015 10:33:35 AM
                                                               Accepted 12/21/2015 10:58:35 AM
                                                                                 ABEL ACOSTA
               IN THE COURT OF CRIMINAL               APPEALS                            CLERK
                    FOR THE STATE OF TEXAS
                         AUSTIN, TEXAS                                 RECEIVED
                                                                COURT OF CRIMINAL APPEALS
                                                                      12/21/2015
EX PARTE                                    §                     ABEL ACOSTA, CLERK
                                            §
                                            §          NO. WR-84,299-01
                                            §
RICHARD FREDRICK LOWREY                     §

               MOTION TO REMAND TO TRIAL COURT

TO THE HONORABLE COURT OF CRIMINAL APPEALS:

       NOW COMES RICHARD FREDRICK LOWREY, Applicant, and

files this Motion to Remand to Trial Court and would show this Court the

following:

                                       I.

       This application for writ of habeas corpus was recently forwarded to

this Court. The claims raised in the application concern the ineffective

assistance of Applicant’s trial attorney, the State’s failure to disclose

evidence favorable and material to Mr. Lowrey’s innocence, and Mr.

Lowrey’s actual innocence. One of the claims concerns the State’s recent

presentation of new expert witness affidavits to analyze the MRIs at issue in

this case.




Motion to Remand to Trial Court – 1
                                       II.

       For the first time ever in the life of this case, the State has proffered

evidence from specialists actually qualified to interpret the MRIs. The State

submitted a joint affidavit from three pediatric neurologists: Drs.

McGlothlin, Perry, and Marks. The fact that the State is now offering the

affidavits of these doctors seems to suggest the State understands that the

two experts who testified at trial are not qualified to interpret the MRIs of

Dillon’s brain conducted in 2009.

                                      III.

       The State’s pediatric neurologists have never been subject to cross

examination. The State simply submitted an affidavit from the newly

obtained experts to refute Dr. Scheller’s testimony, given at the habeas

hearing, and Dr. Rotenberg, submitted just days after the hearing. Cross

examination of these doctors is particularly important for three reasons.

First, Applicant has a constitutional right to confront the witnesses against

him. U.S. CONST. amend. VI; Crawford v. Washington, 541 U.S. 36, 51-52

(2004). Second, the habeas court’s findings attempted to discredit

Applicant’s doctors based on the cross examination conducted at the habeas

hearing. Applicant should be afforded the same opportunity to provide

evidence discrediting the State’s doctors’ opinions. Finally, Dr. Scheller,



Motion to Remand to Trial Court – 2
who testified on Applicant’s behalf, posited that Dillon’s injuries occurred

while in the care of the State’s doctors and Cook Children’s Hospital.

Applicant should be afforded the opportunity to develop the bias of these

witnesses, which may be used to potentially downplay any fault the

witnesses may have in causing Dillon’s injuries while he was in the care of

Cook Children’s Hospital.

       FOR THE ABOVE REASONS, Applicant respectfully requests that this

case be remanded to the trial court.

                                      Respectfully submitted,

                                      Hurley, Guinn & Sellers

                                      By:    /s/ Frank Sellers
                                            Frank Sellers
                                            State Bar No. 24080305
                                            Frank@hurleyguinn.com
                                            Daniel W. Hurley
                                            State Bar No. 10310200
                                            dwh@hurleyguinn.com

                                      1805 13th Street
                                      Lubbock, Texas 79401
                                      P: (806) 771-0700
                                      F: (806) 763-8199

                                      Law office of Allison Clayton

                                      By:    /s/ Allison Clayton
                                            Allison Clayton
                                            State Bar No. 24059587
                                            Allison@AllisonClaytonLaw.com


Motion to Remand to Trial Court – 3
                                      P.O. Box 64752
                                      Lubbock, Texas 79464-4752
                                      P: (806) 773-6889
                                      F: (806) 688-4515

                              Certificate of Service

       I certify that on December 21, 2015, a copy of the foregoing was

served upon the Tom Green County District Attorney by email to

Allison.Palmer@co.tom-green.tx.us.

                                                  /s/ Frank Sellers
                                                 Frank Sellers




Motion to Remand to Trial Court – 4
