                                                                  WR-47,593-02
                                                    COURT OF CRIMINAL APPEALS
                                                                    AUSTIN, TEXAS
                                                    Transmitted 8/7/2015 2:44:15 PM
                       No. WR-47,593-02               Accepted 8/7/2015 3:00:37 PM
                                                                     ABEL ACOSTA
                                                                             CLERK
IN THE COURT OF CRIMINAL APPEALS OF TEXAS, AT AUSTIN
                                                       RECEIVED
                                                COURT OF CRIMINAL APPEALS
                                                       8/7/2015
           Ex parte Randal Franklin Caraway       ABEL ACOSTA, CLERK
                           Applicant
Habeas Corpus Proceeding under Article 11.07, et seq., C.Cr.P.,
   in Case Number 19072B, from the 91st District Court of
                     Eastland County


   Motion for Remand for Evidentiary Hearing

TO THE HONORABLE COURT OF CRIMINAL APPEALS:

    COMES NOW, Randal Franklin Caraway, Applicant, by and

through his attorneys, John G. Jasuta and David A. Schulman,

and respectfully files this Motion for Remand for Evidentiary

Hearing, and would show the Court:

                                I

    Applicant filed an application for a writ of habeas corpus in

Cause Number 19072B, in the habeas court, on June 14, 2014.

The application was transferred to the Court of Criminal Appeals,

received on July 11, 2014 and docketed as indicated above. On

August 15, 2014, a Supplemental Clerk’s Record was received at

the Court of Criminal Appeals containing the habeas court’s

Findings of Fact and Conclusions of Law, which had been signed
by the habeas court on August 8, 2014, to which Applicant

objected on March 10, 2015, with notice of those objections being

filed with this Court the same day.

                                  I

    Applicant asserts that the habeas court improperly denied

him the opportunity to present his claims in a live evidentiary

hearing. In that regard, Applicant would show the Court that, in

his habeas corpus application, he stated facts which, if true, would

entitle him to relief, in multiple respects:

                                  A

    Applicant’s allegation as to the recantation of incriminating

trial testimony is supported by the Jenkins affidavit, submitted as

Exhibit “C” to the habeas application. The State’s answer created

contested factual issues, but did not purport to resolve the issue

without the making of credibility choices, more suitable after

confrontation.

    The State made no effort to explain Jenkins’ reduced

sentence, which he swore was the payoff for the perjured

testimony. That the individuals named as those who coerced the

testimony have denied the truth of the allegation, again, does

nothing but create a factual issue requiring resolution.

                                  2
                                 B

    Counsel for the State clearly misunderstood Dr. Peerwani’s

affidavit (attached as Exhibit “F” to the habeas application) and

the State’s answer, and findings based on that answer, misstated

the substance of that affidavit. In the 2013 affidavit Dr. Peerwani

did not state the cause of death as manual strangulation but,

instead, stated that, given current and modern medical knowledge

and procedures, the cause of death could not be determined.

    It is true that Dr. Peerwani testified at trial that his

identification of the cause of death at trial was due to history,

which went unexplained. However, the State’s response missed

the point of Dr. Peerwani’s affidavit which was that his trial

testimony was wrong, and would not be the same today, given

modern medical protocols. According to Dr. Peerwani, he could

not, given those modern protocols and procedures, use what

others told him in arriving at a scientific conclusion and his

testimony would not be that which was offered at trial.

    Provided with the opportunity in a live evidentiary hearing,

Dr. Peerwani will testify that the trial testimony that the cause of

death was homicide and the method was manual strangulation

was based entirely on what he had been told by involved law

                                 3
enforcement officers and that neither would have been made but

for that improper intervention. The science, Dr. Peerwani will also

testify, could not show either cause of death or method of death

and should not have been given because it was false testimony, as

it was based on unsupportable hearsay.

    The State’s answer somewhat disingenuously states that the

evidence at trial showed that Dr. Peerwani could not have come up

with the conclusion that there had been manual strangulation

unless someone told him, when that statement also totally misses

the point. At trial, notwithstanding the lack of scientific support,

Dr. Peerwani was allowed to give an expert scientific opinion that

there was a homicide and that it had been caused by manual

strangulation. In fact, as will be shown in testimony, following

modern protocols, Dr. Peerwani, and other modern pathologists,

do not speak with anyone who has any interest in the conclusion

drawn. Such “expert” testimony could not be given today because

it was not based on any scientific enquiry or expertise.

    It is, perhaps, only coincidental, that the autopsy was

performed on October 5, 1994, with law enforcement officers

Preston and White present, and it was the next day that Preston

wrote out the confession for Applicant to sign. Thus, at the time

                                 4
of the autopsy, Applicant had not confessed to anything, making

any “history” suspect, at best, and, possibly, a complete

fabrication. The “history” was the opinion of law enforcement, and

only that. It was not science.

    Through its answer to the habeas application, the State

ignores the fact that, given the advances in medical technology

and procedures, Dr. Peerwani’s testimony that there was a

homicide would not be given, that his evidence that the method of

death was manual strangulation would never have been heard by

the jury, and, therefore, the testimony he actually gave at trial was

false testimony.

    Dr. Peerwani’s current affidavit and his proposed testimony

based on that affidavit clearly raise factual issues requiring

resolution through evidentiary methods, and not unsupported

credibility choices based on denials by the State without support.

                                 C

    The State’s answer also neglected, and did not mention the

additional medical evidence on this topic, all of which requires

proper resolution of the issue. Two forensic pathologists have

sworn that the evidence which was heard by the jury would not be

given today because it is unsupported by medical examination.

                                 5
Modern medical protocols simply do not allow for the interjection

of the opinions of others, and certainly not police officers, into the

medical examination and the conclusions to be drawn from that

examination.

                                  D

     Additionally, the State either ignored or failed to understand

and acknowledge, that additional “evidence” from Dr. Peerwani,

including   demonstrations      of    manual    strangulation    and

discussions of how long victims would struggle and retain

consciousness until death would ensue, would not have been

admissible at trial, as it would not have been relevant to any

issues before the jury. The State was able, due to the introduction

of this spurious evidence, to argue that Applicant’s confession was

“consistent with the medical evidence” (RR Vol. 5, PP. 523-524).

The truth is that the “medical evidence” presented at trial was

false, based as it was on the statements made to the pathologist

by law enforcement officers.

                                  E

     The State argued in its response that there is no evidence

showing a violation of Brady v. Maryland, 373 U.S. 83, 1963).

The State did not respond, however, to some of the Brady

                                  6
violations alleged in the habeas corpus application. Thus, several

of the State’s failures to provide exculpatory and favorable

evidence to defense counsel remain unexplained.              Resolution

through appropriate means is required, and the most appropriate

means would be a live evidentiary hearing.

     An example is found regarding the statement made to

authorities by Jessica Bryan, the deceased’s daughter, who

informed police that she, and Applicant, had arrived home at 9:27

p.m., and that she had awakened three times during the night, on

each occasion observing Applicant alone and awake at the kitchen

table. During one of those times she heard Applicant arguing with

someone, took the phone, and spoke with her mother. The failure

to   provide   this   information       to   defense   counsel   remains

unexplained.

     Another example of a Brady violation to which the State failed

to respond is found in the written notes of the interview of Jessica

Bryan in which it is stated that the deceased was at Roy Parker’s

house when Jessica spoke with her. The State put on evidence, at

trial, that the deceased was next door, at Shawna Rhyne’s house

until she returned home. That evidence was directly contradicted

by the notes which were never revealed to the defense, yet the

                                    7
State offered no response to allegations in the habeas application

pertaining to Bryan’s notes, and the allegation remains

unresolved.

    Yet another example which has not been disputed is that the

deceased’s father reported to police that he had spoken with

Shawna Rhynes, who told him that she had last seen the deceased

at 9:00 p.m. on the night of her disappearance. The State put

Shawna Rhynes on the stand to testify that she walked the

deceased home after midnight and left her fighting with Applicant,

despite the fact that counsel for the State knew Shawna had told

the deceased’s father something entirely different. This report was

not given to the defense, and most certainly was never shown to

the jury. The failure to provide this information to defense counsel

remains unexplained, despite its contradiction of the testimony of

one of the State’s star witnesses. Only through presentation of

evidence at a live evidentiary hearing can this explanation be

obtained, and complete and fair resolution achieved.

                                 F

    The State disputes trial counsel Sanov’s affidavit as not based

on recollection. Trial counsel Sanov swore to his usual practices

at the time in question, and those statements of his practices have

                                 8
not been contradicted by the State. His statement is nothing more

than an assertion that he has no reason to believe that he would

have failed to act in accordance with his usual practices, which

would have included investigating facts which would have

benefitted his client. What Sanov’s statements are not is “rank

speculation.”

    The Sanov affidavit, when combined with that from Mr.

Escovedo, is an excellent example of a Brady violation. Sanov

stated in his affidavit that, had he seen the note referring to

Escovedo, he would have contacted him as a part of his

investigation, according to his usual practices at the time. Mr.

Escovedo swore that no one contacted him. Mr. Sanov is not

guessing, he is reciting his history, his usual course of practice

and his belief that he was not given this information because he

failed to act in his usual manner by investigating it.

    If it does nothing else, the Sanov affidavit creates factual

issues which require resolution by actual investigation and

evidentiary presentation, eschewing speculation. Sanov’s evidence

should be accorded the same respect the State wishes accorded to

that of Mr. Siebert, that he had an open file policy, despite the



                                 9
Seibert’s admission that he had no recollection of the exhibits.1

According equal respect to the evidence from the sources

demonstrates, once again, the need for a genuine evidentiary

hearing.

                                        G

     The evidence before the habeas court clearly demonstrated

inconsistencies in the State’s evidence, including whether

Applicant actually directed the detectives to the body. The State

referred in its answer, on multiple occasions, to the confession and

the “fact” that Applicant showed the officers where the body was

hidden. Interestingly enough, this was not stated in Kenneth

Preston’s initial memo describing the discovery of the body. In

“OFFENSE/INCIDENT REPORT MEMO # 941015" it states:
     At approximately 10:30 PM on 10/04/94 Cisco Police Department Det. Sgt.
     Kenneth Preston and Chief Fairbanks were directed to a trash pit
     approximately 4 miles southwest of Cisco. It was there that the semi-nude
     body of a white female was found deceased. The body was wrapped in
     some type of blanket. The body is believed to be that of Tamiy Deneen
     Bryan, white female, 30 years of age, which was reported missing since



 1
    Interestingly, the record shows Mr. Siebert’s assertion that no evidence was
not shown to Mr. Sanov during this open file review is false. Two documents,
dated October 24, 1994, and February 9, 1995, were revealed to counsel on the
third day of trial (RR Vol. 4, PP. 275-281). These documents related to matters
which went to the heart of Applicant’s defense, just as the matters discussed
herein, and they had been in the State’s file for fifteen months. Clearly, contrary
to the affidavit of Mr. Siebert, not everything within the State’s file was revealed
to Mr. Sanov.

                                        10
     09/27/94. The body is believed to have been dumped there by suspect #1
     after being carried there by the suspect in the above described vehicle.

Oddly enough, no mention is made of either Applicant by name,

or of Suspect #1, being the person who “directed” the maker of

that report to the location, seemingly an important fact.                       If

“Suspect #1,” or Applicant, had directed the search, why was the

body only “suspected” of having been left there by Suspect #1?

     Why doesn’t the report assert that Applicant had confessed

and was the person who led the police to the body? The only

reasonable explanation is that Applicant had not confessed and

had not led the police to the body. Despite this inconsistency

going directly to the heart of the State’s answer, no true

investigation was had through the one traditional method

available to habeas courts allowing for presentation, and scrutiny,

of reliable evidence - a live evidentiary hearing.

                                       H

     There are multiple examples of the failure of the police to

reveal evidence contradictory to the theory by which Applicant

would be held accountable. There is even a phone slip from a

police chief of a neighboring jurisdiction to the investigators in this

case, clearly showing that there was a witness to the deceased’s

intoxication the alleged night of the murder.

                                       11
     The evidence contained in that note was contrary to the State

sponsored    evidence    that   there   were   no   drugs   and    an

inconsequential amount of alcohol in the deceased’s body at the

time of death. Nevertheless, the State maintained in its answer

that, it is “unclear if there was a failure to disclose” this

information. The State’s answer, therefore, demonstrates the need

for a hearing at which it can show that it did divulge information

directly contrary to its theory of the case.

     The actual facts, when presented in a live evidentiary hearing,

will show that the absence of drugs and alcohol in the body, if

true, weighed totally against Applicant killing the deceased and

disposing of the body the night of the killing, as the State

presented the case to the jury. The evidence actually shows that

the deceased did not die that night and maybe even that Mr.

Escovedo’s evidence, also unrevealed, was true.

     It is clear that evidence exists that there were multiple

instances of non-revelation of material information to Mr. Sanov

given his affidavit, as well as, perhaps, the State, if their claim of

not having the evidence found in the police files is believed. All of

this is, of course, inconsequential, because the police’s failure to

divulge exculpatory evidence is attributed to the prosecution team.

                                 12
Kyles v. Whitley, 514 U.S. 419, 437-438 (1995); Ex parte

Chavez, 213 S.W.3d 320, 325 (Tex.Cr.App. 2006); Ex parte

Mitchell, 977 S.W.2d 575, 578 (Tex.Cr.App. 1997); Ex parte

Castellano, 863 S.W.2d 476 (Tex.Cr.App. 1993); Ex parte

Adams, 768 S.W.2d 281 (Tex.Cr.App. 1989).

                                        II

    Much has been written about the necessity of confrontation

in the search for truth, with a recognition that the courtroom is

that place where that search is conducted.
    The courtroom is the crucible of the law, where the fire of litigation
    tests the intellectual and political forces that inform social policy.
    Discovery - the process by which litigants identify and assemble their
    evidence - provides the fuel for the fire.

James Gibson, A Topic Both Timely and Timeless, 10 RICH. J.L.

& TECH. 49 (2004). Our literature and case law are replete with

references to the “crucible” of the courtroom.

    Members of the Supreme Court of the United States use it

often. Regarding the Confrontation Clause, for example, the Court

recently wrote:
    To be sure, the [Confrontation] Clause's ultimate goal is to ensure
    reliability of evidence, but it is a procedural rather than a substantive
    guarantee. It commands, not that evidence be reliable, but that
    reliability be assessed in a particular manner: by testing in the crucible
    of cross-examination. . . . Dispensing with confrontation because
    testimony is obviously reliable is akin to dispensing with jury trial


                                       13
    because a defendant is obviously guilty. This is not what the Sixth
    Amendment prescribes."

Melendez-Diaz v. Massachusetts, 557 U.S. 305, 312 (2009).

Along that line, in one its most landscape-changing Confrontation

Clause cases, the Court wrote:
    Where testimonial statements are involved, we do not think the
    Framers meant to leave the Sixth Amendment's protection to the
    vagaries of the rules of evidence, much less to amorphous notions of
    "reliability." Certainly none of the authorities discussed above
    acknowledges any general reliability exception to the common-law
    rule. Admitting statements deemed reliable by a judge is
    fundamentally at odds with the right of confrontation. To be sure, the
    Clause's ultimate goal is to ensure reliability of evidence, but it is a
    procedural rather than a substantive guarantee. It commands, not that
    evidence be reliable, but that reliability be assessed in a particular
    manner: by testing in the crucible of cross-examination. The Clause
    thus reflects a judgment, not only about the desirability of reliable
    evidence (a point on which there could be little dissent), but about how
    reliability can best be determined. Cf. 3 Blackstone, Commentaries, at
    373 ("This open examination of witnesses . . . is much more conducive
    to the clearing up of truth"); M. Hale, History and Analysis of the
    Common Law of England 258 (1713) (adversarial testing "beats and
    bolts out the Truth much better").

Crawford v. Washington, 541 U.S. 36, 61-62 (2004). Similarly,

more than forty years ago, Justice Marshall, joined by Justices

Douglas and Brennan, wrote, albeit in dissent, that “In our system

of justice, the right of confrontation provides the crucible for

testing the truth of accusations . . ..” Arnett v. Kennedy, 416

U.S. 134, 214-215 (1974)(Marshall, J., dissenting). Also, seventy

years ago, Justice Murphy, defending the right of the Associated

                                      14
Press to disseminate the news, wrote generally that evidence,

unless undisputed, “should be thoroughly tested in the crucible of

cross-examination and counter-evidence.” Associated Press v.

United States, 326 U.S. 1, 57-58 (1945)(Murphy, J., dissenting).

                                 III

    The role of the trial court in habeas corpus matters brought

pursuant to Art. 11.07, § 3, is that of the fact-finder. The ultimate

decision is to be made by the Court of Criminal Appeals, guided by

the informed findings and recommendation of the trial court.

Applicant asserts that the only way the Court can properly assist

the Court of Criminal Appeals in its investigation and truly resolve

the question of whether the State violated the requirements of

Brady is to schedule a live evidentiary hearing, at which time

Applicant would be able to introduce live testimony supporting his

claims.

                                 IV

    Applicant would suggest that, due to the time required to

obtain witnesses and ensure their presence, as well as to prepare

for a full and complete hearing, the hearing be scheduled no less

than sixty (60) days from the date of the setting of the hearing.



                                 15
                              Prayer
     WHEREFORE, PREMISES CONSIDERED, Applicant, Randal

Franklin Caraway, respectfully prays that this Honorable Court

will remand this cause to the trial / habeas court so that a live

evidentiary hearing can be held, at which time Applicant can

present live testimony in support of his claims; and, after such

hearing and upon proper consideration by the Court of Criminal

Appeals, Applicant will be granted the relief to which he is entitled.

                      Respectfully submitted:




John G. Jasuta                        David A. Schulman
Attorney at Law                       Attorney at Law
State Bar No. 10592300                State Bar No. 17833400
lawyer1@johnjasuta.com                zdrdavida@davischulman.com

              1801 East 51st Street, Suite 365-474
                     Austin, Texas 78723
                      Tel. 512-474-4747
                      Fax: 512-532-6282

                      Attorneys for Applicant




                                 16
            Certificate of Compliance and Delivery

    This is to certify that: (1) this document, created using

WordPerfect™ X7 software, contains 3,234 words, excluding those

items permitted by Rule 9.4 (i)(1), Tex.R.App.Pro., and complies

with Rules 9.4 (i)(2)(B) and 9.4 (i)(3), Tex.R.App.Pro.; and (2) on

August 6, 2015, a true and correct copy of the above and foregoing

“Motion for Remand for Evidentiary Hearing” was transmitted via

the eService function on the State’s eFiling portal, to John R.

Saringer (saringer@wagstafflaw.com), attorney pro tem, counsel for

the State of Texas.



                            ______________________________________
                            John G. Jasuta




                                17
