824 &~l '0|

COURT OF CRIMINAL APPEALS

Att: ABEL ACOSTA, CLERK February lO, 20154
P.O. Box 12308
Austin, Texas 787ll

Re: ----- PRO SE OBJECTION TO THE COURT'S FINDINGS OF -----
FACT AND CONCLUSION OF LAW
CAUSE NO. ll-O4-O4686-CR-(l)
COUNTS I AND II

Dear Mr. Acosta,

Enclosed* please find APPLICANT'S PRO SE OBJECTION TO THE
COURT'S FINDINGS OF FACT AND CONCLUSIONS OF LAW, please file
said motion and bring it to the attention of the Court in the
above-styled and numbered cause.

Applicant in this case did not receive the Court's Findings
Of Facts And Conclusions of Law in time to make a objection
in the lower court, that was filed January 22, 2015, however,

did not §eceive until February 51 2015.

Respectfully submitted,

/S/ KFQ¢?Q, @QQE :
DARYL EE BEESON #1788958,pro se

Michael Unit
2664 FM 2054
Tennessee Colony, TX. 75886

§WE'CEIVEI iN

©DBRTGFCHMNAL APPEALS
FEB 20 2°"'

 

AM Acosta, C|erk

i.L.A.

 

wRIT No.

CAUSE NO. ll- 04- 04- 686- CR-(l)
COUNTS I AND II

Ex PARTE § IN THE COURT oF'
_ § '
_DARYL LEE BEESON, § cRIMINAL APPEALS
APPLICANT § l
§ AUSTIN, TEXAS

 

APPLICANT S PRO SE OBJECTION TO THE COURT' S
FINDINGS OF FACT AND CONCLUSIONS OF LAW

 

TO THE HONORABLE COURT OFbCRIMINAL APPEALS:

coMEs Now DARYL LEE BEESON} pro se Applicant, and moves this.
court_ to find that there is a necessity for an evidentiary hear-
ing, or at least affidavits in resolving the factual disputes
raise by the Applicant regrading ineffective assistance claims.
lt is clear that the trial court did not do an independent review`
of the' record or is there any evidence that the court even read
rapplicant's habeas corpus, it simpy adopted the State's proposed
findingsv of fact and conclusions of law word for word. This
findings :of fact and conclusions of law were filed the same

day January 22, 2015.

vI. FINDINGS OF FACT

In the case at_bar, the Court should not have even considered
the State's answer to Applicant's habeas corpus. Under the Texas
Code `of' Criminal Procedure Article ll.O7, the State only has
(15) days in ,which ’to` respond after said writ is filed with
the court, pin this case it was filed December 22, 2014, making
their responce due on or about January 7, 2015. The State did
not file their responce until January 22[ 2015, the same day

the court adopted the State proposed findings of fact and conclu-

 

sion of law.

The Applicant was charged by indictment with two counts of
aggravated sexual assault of a child, alleged to have occurred
on or about January '24, ZOll, The Applicant pled "not guilty"
jury found him guilty and assessed his punishment at life impri-
soment -in each count. The trial court ordered the sentences
to run consecutively.

In the Ninth Court of Appeals, Applicant presented three grounds
for relief. Ground-One: The evidence is insufficient to support
a conviction for AGGRAVATED_ sexual Assault of a child because
there is insufficient evidence to show that appellant THREATENED
the complainant .with death 'or serious bodily injury as alleged
in' the indictment: Ground Two: The court committed reversible
error by 'STACKING" the lsentences or running them concrrently7
Ground Three; fhe-courtr of' appeals has athe power to address
unassigned error whether at the trial or appellate level.r

The Ninth Court of Appeals affirmed the applicant's convictions
and sentences, which became final on October 28, 2013.

On December 22, 2014, the Applicant filed his first applications
for writ of habeas corpus pursuant to article ll.O7 of the Texas
Code of Criminal Procedure, alleging the following grounds:

.` GROUND ONE
APPLICANT WAS DENIED HIS DUE PROCESS RIGHTS
AND ALSO HIS CONSTITUTIONAL RIGHT TO COUNSEL
. GROUND TWO
TRIAL COURT'S CLEAR ABUSE OF DISCRETION IS SHOWN IN
ADMITTING HEARSAY VIDEORAPED INTERVIEW
GROUND THREE

TRIAL COURT VIOLATED APPLICANT'S DUE PROCESS RIGHTS BY
DENYING HIS MOTION FOR CONTINUANCE

 

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GROUND FOUR
INEFFECTIVE ASSISTANCE OF COUNSEL FAILURE TO INVESTIGATE
OR PRESENT EXPERT TESTIMONY REGARDING COMPLAINANT'S
MENTAL OR EMOTIONAL STATE

GRoUND FIVE
INEFFECTIVE ASSISTANCE oF COUNSEL DUE To HIS FAILURE To
REQUEST FoR JURY INSTRUCTIONS PURSUANT To
‘ARTICLE 38.23 & 38.22, SECTION § 7

GROUND SIX
INEFFECTIVE ASSISTANCE OF COUNSEL DUE TO HIS FAILURE-TO
INVOKE APPLICANT'S RIGHT TO CONFRONTATION CLAUSE

GROUND SEVEN
TRIAL COUNSEL WAS INEFFECTIVE FOR HIS FAILURE TO
IMPEACH STATE' S WITNESS AT PUNISHMENT

GROUND EIGHT _
TRIAL COURT'S CLEAR ABUSE OF DISCRETION IS SHOWN
IN ADMITTING CELL PHONE PHOTOGRAPHS

Applicant has also file a PRO SE MOTION REQUESTING LEAVE TO
FILE A SUPPLEMENT TO THE ORIGINAL APPLICATIONS FOR WRIT OF HABEAS
coRPUS (11.07), in the District court for the zzlst Judicial
District Montgomery County, Texas and also in the Court of Crimi-
nal,Appeals/'andftheyiarefaslfo&lows:

GROUND NINE
INEFFECTIVE ASSISTANCE OF APPELLATE.COUNSEL FOR FAILURE
TO RAISE A MERITORIOUS CLAIM OF DUE PROCESS RIGHTS
AND ALSO HIS CONSTITUTIONAL RIGHT TO COUNSEL

GROUND.TEN
INEFFECTIVE ASSISTANCE oF APPELLATE COUNSEL FoR HIS FAILURE To
RAISE THE TRIAL COURT'S ABUSE oF DISCRETION IN;_
_ADMITTING HEARSAY vIDEoTAPED INTERVIEW

GROUND ELEVEN
INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL FOR HIS FAILURE
TO RAISE THE TRIAL COURT VIOLATING APPLICANT' S DUE
PROCESS RIGHTS BY DENYING HIS MOTION FOR CONTINUANCE

' GROUND TWELVE .
INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL FOR HIS FAILURE
TO RAISE THE TRIAL. COURT' S CLEAR ABUSE OF DISCRETION
IN ADMITTING CELL PHONE PHOTOGRAPHS
Trial counsel was, informed two days before trial that the

complainant,(Bethany)'stated'that`she'had'*Multiple`Personalties”

 

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'she" described `a' 'Girl' /named ”Emily” who exists ”inside her
'head' ~(not a voice as the court has said)'whom'the complainant
"has known ”foreverf and who talks to her and 'tells her what
to do.F Emily -told her to‘ run away that night and to get in
the car with Applicant. (RR Vol.VI.pg.24).

The complainant said she "Zoned-Outf completely. (RR vol.VI.pg.
v29). Complainantb says ~she *Zones-Out" multiple times every day,
sometimes for 'long"periods.`of _time. She doesn't remember what
happens' during 'Zoning-Out" "I could be just in there looking
at'a clock and a second later it would be_like three hours later.@
When ask how "she spells° “Emily; she spells it, "E-h~m-m-i-e-
h-i-e-e-yi" (RR vol.vx.pgs.48,49,51).

Trial 'counsel moved for a continuance on the grounds that
the information was wholly unanticipated; by the defense, and
the Applicant's defense would require additional time to prepare
for trial andj.seek. expert psychiatric assistance to evaluate
the significance of these facts and implications for the defense,
However, prosecutor states, "Additionally, we do not anticipate
Bethany vCochran testifying until probably- late Wednesday or
possibly early Thursday. So they have sufficient time from Satur-
day until 'theh time' that she testifies to be able to garner up

enough evidence or whatever information they need to sufficiently
cross `examine her and successfuly use this information at trial.
so, for that reason-the State is opposed to the motion for conti-
cnuance§" (RR Vol.II.pg;12,13).

The trial court denied the Applicant's motion for continuance

and Jproceeded to ltrialL `“I am going to deny your motion for

`continuance. It is your third one. While I am concerned about

 

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»

lit beingl given at `this late hour, l do feel as if we have a
jury~~panelh outside :and l'am going to go ahead and go forward¢"
(RR vol.Ii.pg'. 14'»)`.;»___,-; v

In Applicant's dmemorandum _in support’ of his habeas, stated
in the statement of facts he identifies what evidence addititonal
_investigation 'would have vrevealed. "lt could have relevance.
What. are the elements of the offense? One of the elements to
the offense are about whether or not a threat was made and whether
-- and according to the statements that were made by the complai-
nant.r How' dof we know? We need to dig into, we need to find out
to what extent has "Emily" been persuading, has been infuencing-
Bethany Cochran, the complainant in this case." (RR Vol.II.pg.B).

The name of the expert witness counsel had been dealing with
and- sought advice on_ how~ to move forward Applicant does not
know; However, rit' is clear that counsel could have called this
witness, land his expert testimony would have shown she suffered
from multiple-personality disorder (MPD) an ailment involving
several 'distint "personalities" that takes turns dominating
`the same body. This would… havei benefitted 'Applicant's defense
by showing that Bethany the complainant had Zoned-Out)that night
and" it was "Emily" that the Applicant had "consensual sex" with.

The issue of the Applicant's confession was not if it was
contradicted/ but if he invoke his constitutional right to coun-
sel, and to end the interview, he did invoke his right to counsel
hand to end the interview, not once but twice before his confess-
ion. The -evidence is' clear that a factual dispute was raise
first during _pretrial suppresion hearing, and then later put

to~'the= jury 'as the `testimony of detective Funderburk and the

 

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videotaped interview. In fact Applicant did invoke his right
to _counsel and to stop the interview, thus, invoking his right
to remain silent, this dispute entitled the Applicant to jury
instructions, under art. 38.23(a), and 38.22, sec. § 7.

Trial counsel asked about Chery Mullen's prior convictions
of »assault and theft during her punishment testimony, but failed
to impeach her `testimony~ with an affidavit executed by Scott
Warren George a few years before the events dfkh$§d§§i££né§¥i§§edfdle`
subpoenaed Scott Warren Georqe to testify to what was said in
his affidavit in order to impeach Mullen's very daming testimony.
(Memorandum at Appendix A).

Mullen had filed assault charges against the Applicant years
before the events of this case, however, her testimony was more
of a 'charge of sexual assault and is as follows: "Well, we got
into an argument that day, Mr. Beeson got very irate with me
over the fact that I would not perform oral sex. And because
of that, he threw me against the TV, he choked me, and he pulled
a shotgun on me threating my life if I did not perform those
duties." (RR Vol.VII.pg.B).

However, bin lthe police report that was filed in that case
Mullen states the vargument was over drugs not over oral sex.

}Counseler should have used this report to impeach her testimony.
Counseler also knew that the prosecution had found Mullen the
night before she testified in a motel with a known drug dealer,
but gain failed to put this to the jury.

Counsel also failed to impeach Mullen under TEXQR.EVID. 609,

Applicant did identfy those convictions in in his memorandum

at appendix C. When counsel asked Mullen of those convictions

 

(6)

she lied and said that it was not her in those convictions,
at that point counsel should have used all means at hand to
impeach her testimony.

The affidavit executed by Scott Warren George on March l3,
2008, is credible, and counsel should have used this to impeach

Mullen's testimony.
CONCLUSION OF LAW

There- are unresolved issues of fact material to the legality
of the Applicant's conviction and- sentence and there is fox
ample evidence in the record to show the need for an evidentiary
hearing or at the least affidavit from trial counsel as regards
to_ineffective assistance of counsel¢ and are as follows:

"Well, Your Honor, once again, my point is that without suffic-
ent time to investigate this and to look into how this is impact-
ing the defense and what adjustments we need to make in our
presentation of the defense, it will be denying my client due
process. It is an ineffective assistance of counsel issue. And
we simply need more time."(RR VoleII.pg.lO).

In Applicant's first, second, third, and eighth grounds for
relief the court says they are not cognzable on habeas because
they could have been raised on direct appeal. Ex parte Nelson,
137 S.W.3d 6§6(Tex.¢rim.App.2004).

However/ Applicant has filed a PRO SE MOTION REQUESTING LEAVE
TO FILE A SUPPLEMENT TO THE ORIGINAL APPLICATIONS FOR WRIT OF
HABEAS CORPUS. In said motion Applicant is asking the Court
to add grounds nine, ten, eleven, and twelve to his applications
for habeas, in order to properly address these issues that the

court says that are not "cognizable" on habeas review.

 

(7_)

Also Applicant is proceeding pro se in this mater, and moves
this Honor Court to reveiw the allegations in this pleadings
under the standard of treview established by the United State
Supreme Court. HAINES V. KENNER, 404 U.S. 519,92 S.Ct. 594,30
L.Ed-2d 652 (1972). If the court can reasonably read pleadings
to state a WMAG cause of action upon which litigant could prevail
` it should do so despite failure to cite proper authority, confus-
ion of legal theories, poor grammar and sentence construction,
or a litigant's unfimliarity with pleadings requirements. BUSH
V. U.S., 823 F.26 909,910 (5th Cir.1987).

Applicant's trial counsel, failed to properly investigate
and sufficienttly prepare a defense in this case after receiving
notice two days before trial that complainant had "Multiple
Personalties' not just a voice in her head. Furthermore, the
record shows that trial counsel did consult with an expert and
sought advice on how to move forward upon learning about her
'Hultiple Personalties' and is as follows: "I have been dealing
with our prychologist expert, and he again urges we need to
have either access to her psychiatric history records or access
to _her teatment provider to investiate this further to see how
this lhas implications for the defense. This is a due process.
CRR vol.II.pg.9)>

Applicantt does not know the name of the expert counsel was
dealing with, however, it is clear that counsel could have called
this witness, and this expert could have shown the complainant
suffered from multiple-personality disorder (MPD), an ailment
involving several distint "personalities" that takes turns domin-

ating the same body.

 

(8)

As seen in another case dealing with (MPD), MARK A. PETERSON
V. WISCONSIN, 1990CF000280, three of the complainant's personali-
ties were sworn in. The testimony of the complainant claiming
to have (MPD) and could send someone else to prison, as in the
case at bar. Circuit Judge Robert Hawley overturned Peterson's-
Nov. 8, 1990, conviction on sexual assault charges due to the
defense had not been allowed to have a psychiatrist examine
the woman before trial.

The expert would have show the court that Bethany the complain-
ant did in fact suffer from (MPD) and that it was "Emily" that
Applicant had "consensual sex" with that night. The evidence
is` clear that the complainant "Zoned-Out"_ that night and it
was "Emily" that should have been questioned, at trial not Beth~\
any, because had "Emily" been questioned she would have testified
that it was "consenual sex"¥

In the fifth ground for relief, counsel was ineffective for
failing to request jury instructions under articles 38.23 and
38.22 of the Texas Code of Criminal Procedure. Applicant was
entitled to request instructions, also for videotaped confess-
ions. art. 38.22 requires those warrning appear on the videotape.
RESENDEZ V. STATE, 256 S.W.Bd 669(Tex.App.-Houston[l4th Dist.]
2007).

There became a factual dispute in the evidence between testimony
of Detective Funderburk and the video interview that was presented
to the jury, as to if Applicant invoked his right to counsel
and to stop the interview , thus, invoking his right to remain
silent, and to come back another day. Because there was a factual

dispute in the evidence Applicant is entitled to jury intruction/

 

(9)

\

under articles 38.23(a) and 38.22, sec. § 7.

In the sixth ground for relief, trial counsel was ineffective
for his failure to invoke his right to confront "Emily". The
Complainant (Bethany) stated that she had "Multiple Personalities"
(each functioning as a distinct entity) Applicant argues that
it was "Emily" that he had "consenual sex" with not Bethany.
The complainant says she remembered that she."Zoned-Out" and
laid down on her side of the Applicant‘s bed. The complainant
says she "ZOnes-Out" multiple times every day, sometimes for
long periods of time. (RR Vol.VI.pg.49)- She doesn't remember
what happens during "Zoning-Out", "I could be just in there
looking at a clock and a second later it would be like three
hours later. (RR Vol.VI.pg.48).

Allowing different- personalities to give evidence at court1
it is a small step from individual representation to accepting
the existence of individual entities, and to allowing different
alters to give evidence in court. In the USA, it would appear
that it is lneither a particularly rare, nor recent phenomenon
for different "alters" to be allowed to testify. A defining
case of legal and procedural difficulties that arose is that
Of the STATE OF WISCONSIN V. HARK A. PETERSON,-1990CF000280(1990),
when six of the supposed 47 personalities of a female witnes
were sworn in separately.

The 26 year-old Sarah complained that two of her personalities/
a child and an adult, had been raped by Peterson, a 29 year-old
grocery worker. It was alleged that Peterson had made friends
with another 26-year-old personality,v called "Franny". He had

then been instrumental in calling forth "Jennifer", a 20-year-old

 

(lO)

personality, who, according to Franny, "liked to dance and have
fun". Peterson and Jennifer then had sex in the back of his
car. During intercourse, another personality suddenly intruded
that of a six-year-old named 'Emily'. Peterson allegedly told
Jennifer to tell Emily to keep their activities "a secret".
Instead, Fanny and Emily "told" Sarah, the "perdominant personal-
ity", who made a complaint to police.

The judge required the woman to take an oath each time that
she changed personality, and the lawyers formally introduced
themselves to each different personality. The defense attorney
made motions in the absence of' the jury, reasoning that his
client had sex with jennifer, that jennifer was "in touch with
reality", and that, even if Sarah didn't know what she was doing
in the front seat of Peterson's car, Jennifer did. Peterson
then testified that he thought he was having sex with Franny.
He stated that he did not know she was ill, but thought she
was "a possible promiscuous person". (a statement that acquired
new meaning in light of the number of personalities allegely
involved in, or at least in "the body" at the time of, the sexual
act)r

The conviction was reversed on appeal, due to the defendant's
expert had not been permitted to examine the complainant. The
case is not unique in terms of a "multiple" complaining of rape.
In a 1992 case, James and Marilyn Dorsey were found guilty of
the rape of a "multiple" and lthen later that conviction was
reversed. n

Here in the case at bar, the evidence is clear that the comp-

lainant "Zoned-Out" that night and it was "Emily" that should

 

(ll)

have have been questioned about what happen that night not Beth-
any, this failure short-circuited the entire process. The comp-
lainant did what she did that night because "Emily" told her
to, she was realy down that night and depressed, and didn't
care what .happened to her that night, and had tried to commit
suicide that night, before she got into the car with the Applic-
ant. (RR Vol.VI.pg.Sl)-

Applicant argues that it was "Emily" that he had "consenual
sex" with not Bethany, also that "Emily" had told him she was
17 yearseold that night. If the complainant does not do what
"Emily" says she gets realy mad at her. "Emily" tells her to
do a mixture of odd and different things and bad things that
aren't good for her. (RR Vol.VI.pg.40-41), "Emily" was never
questioned about her age, or as to being under the threat of
any force nor was there ever a deadly weapon exhibited. Applicant
was denied effective assistance of counsel for counseler's failure
to invoke his right to confrontation of the true complainant
"Emily".

In the seventh ground for relief, counsel was ineffective
for ihis failure to impeach Cheryl Mullen, she testified about
an assault charge she filed against the Applicant a few years
before the events of this case occurred. Counsel's failure to
use an affidavit executed by Scott Warren George on March 13,
2008, which Mullen admitted to lying about the assault shortly
after it occurred. (Memorandum at Appendix A). Counseler should
subpoenaed Scottl Warren George to testify to what was said in
his affidavit in order to impeach Mullen's very daming testimony.

Mullen had filed assault charges against the Applicant years

 

before the events of this case, however, her tetsimony was more
of- a charge of sexual assault and is as follows: "Well, we got
into _an argument that day. Mrr Beeson got very irate with me
over the fact that I would not perform oral sex. And because
of that, he threw me against the TV, he chokedd me, and he pulled
a shotgun on me threating my life if l did not perform those
duties." (RR Vol.VII.pg.B).

However, in the police report that was filed in that case
Mullen states the argument was over drugs not over oral sex.
Counsel also failed to impeach Mullen under TEX.R.EVID.609/
Applicant did identify those convictions in his memorandum at
appendix C. When counsel asked Mullen of those convictions she
lied and said that it was not her in those convictions, at that
counsel should have used all means at hand to impeach her testi-
mony/ however, failed to do so. Mullen's testimony is where
the State finely put in the minds of the jury that there really
was a gun in this case. Applicant's trial counsel was ineffective
for failing to impeach Mullen's very daming testimony, and this
failure did affect his sentence.

PRAYER'

THEREFORE, the Court of Criminal Appeals should find that
there is a necessity for a fact-finding hearing, to adequately
address Applicant's allegations, or at least affidavit from
counsel, there is not ample evidence in the record for this
Court to rule on the relief sought, in claims of ineffectiveness
the court should hear from counsel, before entering appropriate

findings of fact and conclusion of law.

 

(13)

Respectfully submitted,

/s/ ;§}CLMAJQ‘ELHMMy\,

DARYL é§E BEESON #1788958, pro Se
Michael Unit

2664 FM 2054

Tennessee-Colony, Texas.758867

CERTIFICATE OF SERVICE
This is to certify that .on February 10, 2015, Applicant's
Pro Se Objection To The Court's Findings Of Fact And Conclusion
Of Law, has been forwarded to Abel Acsta, clerk of the Court
of ‘Criminal Appeals at P.O. _Box 12308, Austin, Texas 787ll,
by U.s. Mail.

Respectfully submitted,

/S/ éioaaad fiagézz-»

DARYLC€EE BEESON #17889581 pro Se
Michael Unit

2664 FM 2054

Tennessee Colony, Texas 75886

I.L.A.

 

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