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CAUSE ND. F~ZD11-D122-D (whc~1)
lN THE 362ND JUDIEIAL

DISTRICT EUURT DF
DENTUN EUUNTY, TEXAS

Ex Parte

KEVEN VUUNE

co=<O>‘O"O°

APPLIEANT'S REBUTTAL TD THE STATE'S
ANSUER TU APPLIEATIDN FUR MRIT UF HABEAS EDRPUS
PURSUANT TD T.B.E.P. 11.D7
The Applicant, seeking relief through a writ of habeas corpus,
rebutts the State's answer to his application and would show in
support the following:
I.

The State alleges that the Applicant's first ground for relief is
not cognizable in writs of Habeas Eorpus. The State is in error.
lt is the function of the appellate courts (including courts of
collateral review) to ensure that NU UNE is convicted of a crime
except upon sufficient proof beyond a reasonable doubt. To do so
and refuse to review such a conviction would be a violation of
both State and Federal Eonstitutions. see: Laster v. State, 275
S.M.Zd 512 (TeX.Erim.App.ZUUQ); EX parte Young, 213 S.M.Ed 327
(1ex.Erim.App.2006)

y "It is the function of the appellate courts to ensure

that no one is convicted of a crime except, upon proof
beyond a reasonable doubt “

5ee also: U.S. v. Michelena-Urovio, 719 F.Zd 753 (Eth Eir. 1983)

(En Banc)

"The reviewing court must act as a due process safeguard_
Due process protects the accused against a conviction
except upon proof beyond a reasonable doubt, of every fact
necessary to constitute the crime with which he was
charged." '

The Applicant asserts that for a state habeas court to not act

as such a Due Process safeguard would be clearly contrary to
established federal law determined by the United States Supreme
Eourt in Jackson v. Virginia, LAB U.S_ 307, which is the standard
of review for insufficiency of evidence arguments. see: wooten v_
Thaler, 596 F.§d 215 (5th Eir. 2010)

"A state court's decision is contrary to clearly established

precedent if the state court applies a rule that contradicts

the governing law set forth by the United States Bupreme

Eourt_w »
The State's insistence on non-cognizability would in fact be an

application of such a contrary rule that would contradict

clearly established Federal law.

The Applicant asserts that the Etate would prefer no review, since
pursual of the Applicant‘s assertation of the insufficiency of the
evidence will reveal no direct evidence, but will show evidence
that is contrary to the evidence the State has used to support his
conviction for the charge of murder. The Applicant asserts in fact,
that the only evidence to State presented was the unreliable and
inconsistent testimony by its two primary witnesses. This includes
testimony that alleged Ebony Ehandler called 911 from her cellphone
when the facts show that did not happen. LaShondra Ehandler's
testimony that she may not even have saw a gun, which is
inconsistent with her prior statements, along with testimony so
inconsistent with their prior statements so numerous as to require
their own brief. see Eraves v. Dretke, 442 F.Bd 33& (5th Eir. 2006)
l‘Evidence of testimony that is inconsistent with the State‘s
primary witnesses prior statements are material to a

criminal defendant”s conviction. And these inconsistencies
render the witnesses testimony unreliable."

ll.

The State claims that the State‘s expert witness did not falsely

testify because the State claims that the State‘s expert Kelly
Belcher testified that she did not find any gunpowder on LaShondra
Chandler as opposed to gunshot primer, and found only one particle
of gunshot primer residue on Ebony Ehandler. This is not only
inconsistent with Ms. Belcher's own report, but clearly FALSE
testimony. Ms. Belcher's report clearly states that gunshot residue
was discovered on LaEhondra Ehandler and gunshot primer AND
gunshot residue was found on Ebony Ehandler, but Ms. Belcher
testified that only a single particle was found on Ebony Chandler.
The Applicant asserts that the governing principle concerning
false testimony is clear. The prosecutor may not knowingly use
false testimony or testimony they should have known was false.
The prosecutor knew Ms. Belcher's report was in fact inconsistent
with her testimony. The prosecutor deliberately and knowingly
trivialized the fact that the only Direct evidence that existed
in this case, was evidence discovered on the prosecutor‘s two
primary witnesses, NUT THE APPLIEANT, and the prosecutor
knowingly used these vague statements and half-truths that gave a
false impression to the jury.in order to obtain the Applicant's
conviction. see: U.S. v. Freeman, 650 F.§d 673 (7th Eir. 2011)

"The prosecutor may not use testimony he knew or should

have known was false. This includes half truths and

vague statements that could be true in a limited sense,

but gives a false impression to the jury.“
The State‘s argument that Ms. Belcher did not actually testify
to whether any particles of gunshot residue were found, therefore
she did not testify falsely is the same kind of half-truth meant
to mislead this honorable court, much like the prosecutor in
Freeman, (State‘s answer,pp_§). The State‘s claim that the

particles this Applicant can show as direct evidence found on its

witnesses-are common to the environment is also a false statement.
Particles that contain a combination of Barium, antimony, and
lead would only be common in the environment of a gunshop or a
murder suspect, not the home of two women and several children
who did not allegedly possess a firearm. Barium, Antimony, and Lead
are common to a firearm and commonly found on people who fire them.
lt is indisputable that Mr. Poe was killed by a gunshot to the
head and it is also indisputable that gunshot residue was found on
the 5tate‘s two primary witnesses and Ms. Belcher falsely
testified. lt is more that reasonable that Ms. Belcher‘s false
testimony affected the judgment of the jury and as a result,
requires a new trial. see: Hayes v. Brown, 599 F.Ed 972 (9th Eir.
ZUUB)(En Banc)

"A new trial is required if the false testimony could

in any reasonable likelihood have affected the judgment
of the jury."

lll.
The State once again alleges that the Applicant's third ground for
relief is not cognizable in writs of Habeas Eorpus'. Again, the
Etate is in error. An abuse of discretion by the trial court in
allowing the State to bias prospective jurors, in defining "beyond
a reasonable" doubt, by giving the State‘s opinion of what it
isn‘t, allowing the State to admit impeachment evidence that is
inadmissable, having no elemental or evidentiary value, but strictly
meant to prejudice the Applicant, allowing the prosecutor to give
instructions to the jury and allowing the jury to speculate as to
the ESR test is; a clear violation of the Applicant‘s right to due

process under both State and Federal Eonstitutions.

The right to due process Msafundamental, constitutionalright and

may not be impinged. The Court of Criminal Appeals has the power

and authority to grant and issue writs of Habeas Corpus and has
final appellate and review jurisdiction in criminal cases_ see:
Tex. Eode Erim. Proc. Art. A.Uh, §(1)(2)

"The Eourt of Eriminal Appeals and each judge thereof

shall have power and authority to grant and issue writs

of habeas corpus in criminal law matters and has final

appellate and review jurisdiction in criminal cases.“
The Applicant asserts that the State's claim of non-cognizability
would violate this statute and the Applicant's constitutional rights,
since the Eourt of Briminal Appeals has the authority to issue final
judgment in criminal cases pursuant to Rule 7B.1 of the Tex.R.App.
Proc.
The Applicant also asserts that a trial court that admits evidence
that is otherwise.inadmissible or allows evidence that has caused
an injurious effect on the jury‘s verdict has abused its discretion
and violated a criminal defendant's right to due process. see:
Brown v. Btate, 96 S.w.Ed 508 (Tex.Erim.App.ZUUZ); King v. State,
953 s.w.zd 266 (Tex.crim.App.1997); Tex.R.App.Pruc. uu.z

"A trial court's errors, separately and together in

admitting evidence that has an injurious effect on a

jury‘s verdict is an abuse of discretion and a violation

of a criminal defendant's right to due process."

lV.

The State alleges that the Applicant‘s trial counsel was not
ineffective. At the time the Applicant was charged with Eapital
Murder, the potential for the State to seek the Death Penalty
clearly existed. The State's claim that since the State did not
eventually seek the death penalty, the Applicant‘s appointed
counsel was not required to meet the higher qualification
standards required. Neither the Eourt, the Applicant, or counsel
knew the State's strategy or whether or not the State would seek

the death penalty. The trial court had an independant duty to

ensure the Applicant was appointed effective assistance of counsel,
qualified to fairly represent accused, Eounsel that is not
qualified, is incompetent as a matter of law, amounting to no

legal representation. This is constructive ineffectiveness. see:
Rodriguez v. State, 360 S.w.Zd 61 (Tex.Erim.App.2011); williams v.
State, 070 5.w.2d EAE (Tex.App.-Fort worth 1994)

"Representation by counsel incompetent as a matter of law
is tatamount to no legal representation at all."

Trial counsel clearly should have objected to the admissability of
_the 911 call since the orgin of the call itself was in question and
the evidence was clearly in conflict with Ebony Ehandler‘s
testimony that she made the 911 call from her cellphone. The Etate's
claim that the 911 dispatcher testified that the call came from the
home where the murder took place is inaccurate. There was no land
line in the home of Ebony Ehandler and her cell phone records
clearly showed that no 911 call was placed from her cell phone.
Therefore, there was no evidence that showed where the call came
from or even if the caller the dispatcher talked to was Ebony
Ehandler. Any constitutionally effective counsel would have known
to object to such evidence. Had trial counsel objected, there is a
reasonable probability that the outcome may have been different.
Eounsel‘s failure to do so resulted from deficient performance, NOT
any sound trial strategy. see:`wiggins v. Smith, 539 U.S. 510,527,
123 S.Et. 2527, 156 L.Ed.2d 471 (2005)

"0ounsel's failure resulted from inattention, not reasoned
strategic judgment."

Eounsel was also ineffective for presenting an expert for the defense
that failed to even attempt to contravert the set of facts alleged
by the-Btate. This caused the Applicant harm. The 5tate‘s claim

that since counsel had devised the strategy of (some other dude did

it) and so the expert agreed that evidence of GSR did not matter,

counsel was not ineffective is also inaccurate. EUunsel knew that
the State's expert gave false testimony and any constitutionally
effective counsel would have used Ms. Belcher‘s own ESR report
and defense‘s expert to impeach such testimony. see: Fuller v.
Btate, 224 5.w.3d 023 (Tex.App.-Texarkana 2007)

"Eounsel's failure to object to inadmissable testimony
was no strategy and counsel was ineffective."

Finally, the State's claim that the Applicant alleges that counsel
should have objected to Btate's closing argument is inaccurate.

The Applicant alleges that his counsel should have objected to the
State giving the jury instructions, which is the duty of the trial
court, not the Btate. The Applicant asserts that the totality of
counsel's deficient performance prejudiced the Applicant's defense.
see: Aldrich v. State, 296 5.w.3d 225 (Tex.App.-Fort worth 2009)

“Aldrich has established by a preponderance of the

evidence that the totality of counsel's constitutionally
deficient performance prejudiced his defense.“

The Btate claims the Applicant's appellate counsel was not
ineffective. The Applicant asserts that he has shown by more than

a preponderance of the evidence that his appellate counsel was
constitutionally ineffective Applicant‘s trial counsel failed to
present the issue of the State's expert, rendering false testimony.
The testimony and the ESR report were both contained within the
record. Had the Applicant's appellate counsel been familiar with
the facts relevant to the Appliant's case, counsel would have known
to raise this ground. Appellant counsel also failed to consult with

the Applicant or allow the Applicant to participate in his appeal_

Had appellate counsel done so, there is a reasonable probability
that the Applicant's conviction would have been reversed. see: Ex
parte Erow, 100 5.w.3d 135 (Tex.Erim.App.2005)

"Applicant was entitled to be in the appellate process."
5ee also: Franklin v. Anderson, 434 F.3d 412 (6th Dir. 2006)

”00unsel displayed a lack of familiarity with the facts

relevant to the appellate's case, Failed to consult with

the appellant or allow appellant to participate in his

appeal_ Eounsel also failed to raise meritorious issues

on direct appeal and as a result is constitutionally

ineffective."
The Applicant also asserts that his appellate counsel failed to
adequately brief one of the only two grounds he attempted to
raise. The appeal court itself made comment on appellate counsel
failing to cite from the record or authority on the ineffective
assistance of counsel claim and as a result, refused to review it.
Any constitutionally effective counsel would have known to cite
from the record and to authority to substantiate this claim.
Particularly in a system that the Supreme 0ourt of the United'4
States recently determined does not offer criminal defendant's
an meaningful opportunity to present an lneffective Assistance of
Eounsel claim on Direct Appeal. Had Applicant's appellate counsel
done so, counsel would not have defaulted such a meritorious
claim. see: Trevino v. Thaler, 133 S.Et. 1911, 105 L.Ed.2d 1044
(2013)

"The Texas procedural system as a matter of structure,

design and operation, does not offer defendant's a

meaningful opportunity to present a lneffective Assistance
of Counsel claim on direct Appeal."

00NOL0510N
The Applicant asserts that he has shown a reasonable probability

that there exists sufficient error to undermine confidence in the

 

 

outcome and fundamental fairness of his trial and as a result his

conviction should be reversed and remanded for a new trial-

PRAYER FUR RELlEF
wherefore premise having been considered, the Applicant prays this
Honorable Eourt find that his application for Habeas Eorpus be
GRANTED, AND recommend to the Eourt of Eriminal Appeals that it

should do so.

/s/ Keven ou

Keven Young

TDEJ-ID #1046040

Mark w. Stiles Unit
3060 FM 3514
Beaumont, Texas 77705

Pro-se

DEELARATIUN

l, Keven Young, TDEJ-ID No.1046040, being presently incarcerated

at the Mark w. Etiles Unit in Jefferson Eounty, Texas, declare

under penalty of perjury that the foregoing is true and correct.

E><ecutsd an §jCAQ-'_/.¢/@/ §O, 2015.

MY/‘

/s/ Keven Young

Keven Young

Denton Eounty District Elerk
P.0. Box 2146
Denton, Texas 76202-2146
RE: Filing Applicant‘s Rebuttal to Btate‘s Answer of 11.07
SUBJEET:

Please file and forward to the proper official the enclosed
Rebuttal to the State‘s Answer to Applicant‘s Application for

writ of Habeas Eorpus for review.

For any questions, l can be reached at the address below.

Respectfully 5ubmitted,

/s/ Keven Young

Keven Voung

TDEJ-lD #1046040

Mark w. Stiles Unit
3060 FM 3514
Beaumont, Texas 77705

