COURT OF CRIMINAL APPEALS

Att: ABEL ACOSTA, clerk _ ~ ` February 4, 2015
P.O. Box 12308 "
Austin, Texas 78711

 

Re: RESPONCE To sTATE' S ANSWER TO APPLICATION §BEEF§EFYGZE§E$Q
HABEAS coRPUS: cAUsE No. 11- 04-0468@9;,1§=¥OPQ';R|M|NALAPPEALS

COUNTS 1 and 11
FEB 12 2015

Dear Mr. Acosta', ADG¥ACOSTQ,CPSI'$(

_Enclosed please find Applicant's Pro Se Responce To State's
Answer To Application For Post-Conviction Writ Of Habeas Corpus,
please file _said ymotion iand bring it to_the attention of the
Court in the above-Styled and numbered cause.

Applicant in lthis case did not receive state's answer in time
to ‘wake_ a responce ibefore the trial court filed Findings of
Conclusion of Law, that was ‘file the same day as the State's

answer, January 22, 2015.

Respectfully submitted/

/s/ 'Q/Q/Mé,é,@@/ér/\_

DARYL LEE BEESON, #1788958, pro se
Michael Unit `

2664 FM 2054

Tennessee Colony, Texas 75886

I.L.A.

CAUSE NO. ll-O4-O4686-CR-(1)
COUNTS I AND II

EX PARTE § IN THE DISTRICT COURT FOR
§
DARYL LEE BEESON, § THE ZZlSt JUDICIAL DISTRICT,
Applicant § » -
` § MONTGOMERY COUNTY/ TEXAS

 

APPLICANT'S PRO SE RESPONCE TO STATE'S ANSWER TO
APPLICATION FOR POST-CONVICTION
WRIT OF HABEAS CORPUS

 

TO THE HONORABLE JUDGE OF THE DISTRICT COURT:

COMES NOW DARYL LEE BEESON, pro se Applicant, and moves this
`Court to find that there'is a necessity for an evidentiary hear-
ingf Or at least affidavits in resolving the factual disputes
raise by the Applicant regrading ineffective assistance claims.
There is a necessity for a fact-finding hearing, there is not
ample evidence in the record for the Court to rule on the relief
sought. The Applicant would respectfully show this Honorable
Court the following:

I. NATURE OF THE CASE:

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, 20ll. The Applicant pled "not guilty"
jury found him guilty and assessed his punishment at life impri-
sonment in each count. The trial court ordered the sentences
to run consecutively.

The Ninth Court of Appeals affirmed the Applicant's convictions

and sentences, which became final on October 28, 2013.

II. CLAIMS THAT SHOULD HAVE BEEN RAISED ON DIRECT APPEAL

 

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In the State's answer to Applicant's writ of habeas corpus/
they state that grounds one, two, three and eight, should\;have
been raised on direct appeal, and the Applicant has provided
no compelling reason for the Court to address those claims,
therefore, the claims are not cognizable on habeas review and
should be denied.

Applicant has lFiled a Pro Se Motion Reguesting 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 application for
habeas, in order to properly address these issues that the State
says that are not "cognizable" on habeas reviw.

Applicant is proceeding pro se in this matter, and moves this
`Honorable Court to review the allegations in this pleading under
the standard of review established by the United State Supreme
_COurt in HAINES V. KENNER, 404 U.S. 519,92.S.Ct. 594,30 L.Ed.Zd
652 (1972). Applicant is requesting this Court to review these
issues under ineffective assistance of appellate counsel, Wthere#
fore, these claims would be cognizable, on habeas and should
granted review.

III. INEFFECTIVE' ASSISTANCE OF COUNSEL:

Applicant will now respond to the State answer regrading ground
.four, the> State now says the counsel was not ineffective due
to his learning two-days before trial that the complainant list-
ened to an internal voice. However, the complainant (Bethany)
stated that -she had "Multiple Personalties" she described as

a `gifl 'named` "Emily" who exists "inside her head" not a voice.

 

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'However,'”prosecutor states`"Additionally, we do not anticipate
Bethany Cochran testifying until probably late Wednesday or
possibly earllehursday; So they have sufficient time from Satur-
day until the time that she testifies to be able to garner up
enough evidence or whatever information they need to sufficiently
cross examine her and successfully use this information at trial.
So, for that reason the State is opposed to the motion for conti-
nuance:"?(RR vol.II.pg.lé/lB)a-Tn the trial the State says there
is enough time for counsel, but here in the answer to Applicant's
habeas the State says the' trial 1counsel did not have enough
time 'and therefoe, not ineffective, they should not be able
to have it bought ways.

The State goes on to say, "Likewise, an ineffective-assistance
claim based on trial counsel's failure to call a witness cannot
succeed adsent a showing that the witness was avaiable to testify
and that the witness's testimony would have benfitted the def-
ense.: Then go on to state that the record shows that trial
counsel did consult with an expert and sought advice on how
to move forward: "I have vbeen dealing with our psychologist
expertf and he again urges we' need to have either access to
her psychiatric history records or access to her treatment provid-
er to `investiate this further to see how this has implications
for the defense-inl This is a 'due process arument, Your Honor}
that this would be denying my client due process. (RR Vol.IL.pg.
9). Here in the _caseuiat bar,- Applicant was not provided the
_ name of the expert counsel was dealing with¢ however, the record

is clear that counsel could have called this witness, and expert

witness would have shown she suffered from multiple-personality

 

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disorder: (MPD), an ailment involving several distint "personali-
ties" that takes turns dominating the same body.

AS seen in MARK A.'PETERSQN v; wlscoNSIN, three of the complain-
ant's personalities were sworn in. The tesimony of the complainant
claiming lto have' (MPD) could send someone else to prison, as
in the case at bar/,o Circuit Judge Robert Hawley overturned
Peterson's Nov. 8, `1990 conviction on sexual assault charges
due to`fl the defense had not been allowed to have a psuchiatrist
examine the woman before trial.

In ineffective‘ assistance's claims the_ court should add to
the record by way of affidvits or an evidentiary hearing before
a finding of facts and conclusion of law. Trial `counsel himself
states in the record that "It is an ineffective assistance of

counsel issue." (RR Vol.II.pg.lO).

Iv. FAILURE To REQUEST 38.22 and 38-23 JURY INSTRncTIoNs:

In the fifth ground for relief, counsel was ineffective for
failing to request jury instructions under articles 38.22 and
38.23 of the Texas Code_of Criminal Procedure5 Applicant was ents

gitled’ toto;ra request instructions, also for videotaped confess-
`ions, art. 38.22 requires those warnings appear on the videotape.
RESENDEZ 'v. ‘STATE,"256's.w;3d'669(tex;App.4Houston[14th Dist-]
_2007). '

This issue was not if the Applicant was coerced in any way,
during the interview the Applicant invoked his right to counsel
and to come back ianother day; There became a factusl disputew
in the evidence between' tesimony of Detective Funderburk and
the video interview that was presented to the jury, if in fact

Applicant invoked his right to counsel and to stop the interview

 

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thus, invoking his right to remain silent, and to come back anoth-
er ;day, `The cross-examiner cannot creat a factual dispute for

purposes of art. 38§23(a), it is only the answers that are evide-

nce asv was the video interview that created the dispute. MADDEN,

242 S.W,Bd at 514i(footnotes omitted). Thus, because there was

.al factual dispute in the evidence Applicant is entitled to jury

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

v. FAILURE7T0 INvoKE`THE RiGHT To_coNFRoNT_THE PERsoN
INDIsE THE coMPLAINANT's HEAD:

In lthej 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 "consensual sex" with not Bethany. Bethany
says she rememberedl that she "Zoned Out" and laid down on her
side of the Applicant[s' bed. The complainant she "Zones Out"
multiple timesr ewery \Uay1 s®metimes for long periods of time.
(RR Vol.VI.pg.49). She doesn't remember what happens during "Zone-
ing-Out", '"I could ber just in there looking at a clock and a
second later`it`would be like three hours later." (RR Vol.vI.pg.
48).

The evidence is clear that the_complainant "Zoned-Out" that
night and wit was "Emily" that should have been questioned, this
failure by trial- counsel short-circuited the entire process.
The complainant did what she did that night because "Emily"
told her to, she was realy down that night and depressedw 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 Applicant. (RR Vol.VI.pg.Sl).

 

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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
n Vol.Vl.pg.40-4l). "Emily" was never questioned, 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".

VI- F-AILURE TO IMPEACH CHERYL HULLEN'S
' TESTIMONY DURING PUNISHMENT

W»In the seventhv ground for relief, counseler was ineffective
for his 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. Counseler failure to
use an affidavit executed by Scott Warren George on March 131
2008, which Mullen admitted to lying about the assault shortly
after it occurred. (Memorandum at Appendix A). Counseler should
subpoenaHSobtt Warren George to testify to what was said in ;ie
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 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
overl 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, in the police report that was filed in that case

 

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Mullen states the argument was over drugs not over oral sex.
Counseler had said report but again failed to impeach her testim-
ony. Counseler `also knew that the prosecution had find Mullen
the night before_ she testified in a Motel with a known drug
dealer, but again failed to put this to the jury.

Counseler also failed to impeach Mullen under TEX.R.EVID.€OQ,
Applicant did identify those convictions in his memorandum at
appendix_§_. When counsel asked Mullen of those convictions she
lie and said that it was not her in_ those conviction, at that
counseler should ‘have used all means at hand to impeach her
testimony, however, failed to do so. Mullen's testimony is where
the State findlly put in the minds of_the jury that there really
was a gun in this case.

The complainant was led into mentioning a gun by Sergeant
Funderburk, due to the fact that Applicant had told him about
the assault charges with Mullen. No gun was ever found by law
lenforcement during their seach lof Applicant's residence. Also
stated by Scott Warren George in his affidavit there never was
a gun at Applicant's house back when Mullen had made the charges
aginst the Applicante However, Mullen's testimony led the jury
to believe that there really was a gun.

Applicant confessed to consensual sex »with the complainant
however, did not threaten her with a gun forcefully rape her.
Sheriff Gary Fruge stated "I saw that her hair and cloths were
disheveled." However, she stated, "I cut myself" also she says
the three small acute cuts to her lower leg where she states,
"I scratched my mosquits bites really hard.@ (RR Vol.IV.pg.197).

There is a reasonable probability this testimony caused Applic-

 

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ant to be sentenced to more time, even one more day has constitu-
tional meaning. Therefore, this failure to impeach Mullen's
'testimony violated Applicant's Sixth Amendment Right to effective
Jassistance of counsel.

Thus, the Applicant has shown that trial counsel was deficient,
and there is a reasonable probability that the outcome of his
trial would have been different_ but for counseler's errors.
Applicant's claim of .ineffective assistance of counsel is with
merit, and his fourth, fifth, sixth, and seventh grounds for

relief should be granted.

VII-

THEREFORE, this Court should find that there is a necessity
for a fact-finding _hearing, to adequately address Applicant's
allegations, or at least affidavits from counsel, there inis tnot
ample evidence in-the record for this Court to rule on the reliefv
sought, in claims of ineffectiveness the court should hear from
counsel, before entering appropriate findings of fact and conclu-
sion of law.

Applicant filed these applications for writ of habeas corpus
pursuant to article ll.O7 of the Texas Code of Criminal Procedurep
on ’December 22, 2014; Hewever, the state aia not file their
answer to application for post-conviction writ of habeas corpus
until January l22, 2015; Therefore the State's answer was filed
untimely pursuant to article ll.O7 of the Texas Code of Criminal
Procedure/ rand should `be disregarded, ‘and this Court should
make‘ its own fact-finding of law, and recommend to the Court

of Criminal‘Appeals this habeas should be granted.

 

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Respectfully\submitted,

/S/ UWMUU /SMQW

DARYL LEE BEESON’

#1788958, pro se

Michael Unit
2664 FM 2054

Tennessee Colony,

Texas 75886

_ vIII.
cERTIFIcATE oF sERvIcE

This is ito

certify‘ that on February 4, 2015, the original
Applicant's Pro Se Responce To State's Answer To Application
For Post-Conviction Writ Of Habeas Corpus, has been forwarded
to Abel Court of Criminal Appeais at P.O..

Box 12308, Austin, Texas 78711,

Acostay` clerk of the

by U.S. Mail.

Respectfully submitted,

,/S/

I.L.A.

C/
DARYL LEE BEESON, #1788958'
Michael Unit
2664 FM 2054
Tennessee Colony, Texas 75886

pro se

 

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