Dewberry, Stedmon

<63 ~o~·_.o\ I Ex Parte Application for Writ of Habeas Corpus

From Bowie County DATE: _01~ 25 1 { STEDMON MONTREL DEWBERRY (Name of Applicant) 5th District Court FILE IN WRIT FILE 51 1 SUPPLEMENTAL BY:..... (JqL TRIAL COURT WRIT NO. 11F0763-005-A CLERK'S SUMMARY SHEET

APPLICANT'S NAME: STEDMON MONTREL DEWBERRY (As reflected in judgment)

OFFENSE: MURDER (As reflected in judgment)

CAUSE NO. : 11F0763-005 (As reflected in judgment)

PLEA: GUILTY I !NOT GUILTVI I NOLO CONTENDERE (CIRCLE ONE)

SENTENCE: 50 YEARS TDC (Terms of years reflected in final judgment)

TRIAL DATE: 1110312011 --~~------------------------------------------------ (Date upon which sentence was imposed)

JUDGE'S NAME: RALPH BURGESS (Judge presiding at trial)

APPEAL NO.: 06-12-00025-CR (If applicable)

CITATION TO OPINION: -S.W.2d- (lf applicable) RECEIVED IN HEARING HELD: X YES NO COURT OF CRIMINAL APPEALS (Pertaining to the application for writ of habeas corpus) SEP 212015 FINDINGS & CONCULSION FILED: YES X NO (Pertaining to the application for writ of habeas co-rpus) Abet Acosta, Clerk RECOMMENDATION: GRANT DENY X NONE (Trial court's recommendation regarding application for writ of habeas corpus)

JUDGE'S NAME: BILL MILLER This document contains some Uudgepresidingov_e_r_h_a-be_a_s_c_o-rp_u_s_p-ro-c-ee_d_i-ng-)--------------------~p=a=g=e=s~tn=a=t~a~reofpoorquali~ at the time of imaging.

INDEX

1. COURT'S DOCKET 1 2. DOCKET SHEET 10 3. SUPPLEMENTAL MEMORANDUM OF LAW 12 4. ORDER SETIING HEARING 29 5. ORDER RESCHEDULING HEARING 30 6. RECEIPT OF EXHIBITS 32 7. MOTION FOR EXTENSION OF TIME 33 8. CLERK'S CERTIFICATE 35

5TH DISTRICT CouRT

CASE SUMMARY CASE No. 11F0763-005 The State of Texas vs Stedmon Montrel Dewberry § Location: 5th District Court § Judicial Officer: Burgess, Ralph K § Filed on: 09/22/2011 § Legacy Track Number: 181691 § Prosecutor Control Number: 11-02814 §

CASE INFORMATION

Offense Deg Date Case Type: Adult Felony I. MURDER Fl 08/28/2010 TRN: 9028106804 TRS: DOOI Filed As: MURDER Fl 9/21/2011 Arrest: 08/29/20 I 0

Statistical Closures 11103/2011 NGP/J VERDICT

Warrants Capias - DEWBERRY, STEDMON MONTREL 11/03/2011 !2:00AM Recalled 09/30/2011 12:00 AM Received 09/30/2011 12:00 AM ACTIVE WARRANT 09/30/2011 12:00 AM ACTIVE WARRANT 09/23/2011 12:00 AM Issued Fine: $0 Bond: $0 Notes: 11103/2011 Issuing Department: TTPD 11/03/2011 By MPARKER from SHERIFF: RECALLED PER STEVE GRAHAM 09/30/2011 Warrant Location: SO 09/30/2011 By MPARKER from SHERIFF: TI0-07276 FILED: DEWBERRY, STEDMON MONTREL 09/30/2011 Warrant Location: B 09/30/2011 NCIC Entered: C 09/30/2011 NCIC Entered: B 09/30/2011 State Entered 09-30-2011 09/30/2011 State Cleared 11-03-2011 09/30/2011 Indictment Number: IIF0763-005 Indictment Date: 09-22-2011

DATE CASE ASSIGNMENT

Current Case Assignment Case Number IIF0763-005 Court 5th District Court Date Assigned 09/22/2011 Judicial Officer Burgess, Ralph K

PARTY INFORMATION Lead Attorneys State STATE OF TEXAS Defendant ~DEWBERRY, STEDMON MONTREL HENRY, CRAIG L Retained 903-792-4645(W)

DATE EVENTS & ORDERS OF THE COURT INDEX

09/22/2011 $FILE (Judicial Officer: Burgess, Ralph K) Event Code: $FILE Memo: Automatic File Date Event

PAGE I OF9 Printed on 09/1 6itoJ 5 at I 0:56AM

5TH DISTRICT COURT

CASE SUMMARY CASE No. 11F0763-005 09/22/2011 QJ COURT DOCKET (Judicial Officer: Burgess, Ralph K) Event Code: COUD

09/22/2011 ~Filed by Indictment (OCA) Event Code: IND

09/23/2011 ~CAPIAS ISSUED (Judicial Officer: Burgess, Ralph K). Event Code: KPS

09/27/2011 Pre-Trial Reset Event Code: PRTR Memo: 10131@ 1:30? NB

09/27/2011 Pre-Trial Reset Event Code: PRTR Memo: 10/4@ 1:30? NB

09/28/2011 ~ Order to Appear Event Code: OA

09/28/2011 ~APPLICATION FOR SUBPOENA (Judicial Officer: Burgess, Ralph K) Event Code: APPLISUBP

09/28/2011 ~Issue Event Code: ISS

09/28/2011 ~ Order to Appear Event Code: OA

09/29/2011 QJ Issue Event Code: ISS

09/29/2011 QJ APPLICATION FOR SUBPOENA (Judicial Officer: Burgess, Ralph K) Event Code: APPLISUBP

10/03/2011 QJ SUBPOENA RETURN SERVED (Judicial Officer: Burgess, Ralph K) Event Code: SRS

I 0/04/2011 QJ Order to Appear Event Code: OA

10/04/2011 PRE-TRIAL FINAL/RESET (Judicial Officer: Burgess, Ralph K) Event Code: PF Memo: 10/25

10/07/2011 ~APPLICATION FOR SUBPOENA (Judicial Officer: Burgess, Ralph K) Event Code: APPLISUBP

10/07/2011 QJ Issue Event Code: ISS

I 0/07/2011 ~APPLICATION FOR SUBPOENA (Judicial Officer: Burgess, Ralph K) Event Code: APPLISUBP

10/07/2011 ~Issue Event Code: ISS

PAGE20F9 Printed on 09/16lzo 15 at 10:56 AM

5TH DISTRICT COURT

CASE SUMMARY I CASE No. 11F0763-005

10/07/2011 qj APPLICATION FOR SUBPOENA (Judicial Officer: Burgess, Ralph K) Event Code: APPLISUBP

10/07/2011 qj Issue Event Code: ISS

10/12/2011 qj APPLICATION FOR SUBPOENA (Judicial Officer: Burgess, Ralph K) Event Code: APPLISUBP

10/12/2011 QJ Issue Event Code: ISS

10/12/2011 ~APPLICATION FOR SUBPOENA (Judicial Officer: Burgess, Ralph K) Event Code: APPLISUBP

10/12/2011 ~Issue Event Code: ISS

10/12/2011 ~APPLICATION FOR SUBPOENA (Judicial Officer: Burgess, Ralph K) Event Code: APPLISUBP

10/12/2011 ~Issue Event Code: ISS

10/12/2011 c:iJ SUBPOENA RETURN SERVED (Judicial Officer: Burgess, Ralph K) Event Code: SRS

10/12/2011 c:iJ APPLICATION FOR SUBPOENA (Judicial Officer: Burgess, Ralph K) Event Code: APPLISUBP

10/12/2011 c:iJ Issue Event Code: ISS

10112/2011 c:iJ APPLICATION FOR SUBPOENA (Judicial Officer: Burgess, Ralph K) Event Code: APPLISUBP

10/12/2011 qj Issue Event Code: ISS

10112/2011 {ij APPLICATION FOR SUBPOENA (Judicial Officer: Burgess, Ralph K) Event Code: APPLISUBP

10112/2011 QJ Issue Event Code: ISS

10112/2011 qj APPLICATION FOR SUBPOENA (Judicial Officer: Burgess, Ralph K) Event Code: APPLISUBP

10/12/2011 ~Issue Event Code: ISS

PAGE30F9 Printed on 09/16dOJ5 at 10:56 AM

5TH DISTRICT COURT

CASE SUMMARY CASE No. 11F0763-005

I 0/17/2011 qJ APPLICATION FOR SUBPOENA (Judicial Officer: Burgess, Ralph K) Event Code: APPLISUBP

10117/2011 qJ SUBPOENA RETURN SERVED (Judicial Officer: Burgess, Ralph K) Event Code: SRS

10/17/2011 qJ SUBPOENA RETURN SERVED (Judicial Officer: Burgess, Ralph K) Event Code: SRS

10118/2011 Q:J Issue Event Code: ISS

10/19/2011 ~NOTICE (Judicial Officer: Burgess, Ralph K) Event Code: NOTICE Memo: EXPERTS

10119/2011 ~STATES NOTICE OF INTENT TO USE EXTRENOUS OFFENSES (Judicial Officer: Burgess, Ralph K ) Event Code: NO/

10/21/2011 ~APPLICATION FOR SUBPOENA (Judicial Officer: Burgess, Ralph K) Event Code: APPLISUBP

10/2112011 ~Issue Event Code: ISS

10/21/2011 ~APPLICATION FOR SUBPOENA (Judicial Officer: Burgess, Ralph K) Event Code: APPLISUBP

10/21/2011 ~Issue Event Code: ISS

10/21/2011 gJ BENCH WARRANT ISSUED (Judicial Officer: Burgess, Ralph K) Event Code: BENCH

10/21/2011 gJ STATES WITNESS LIST (Judicial Officer: Burgess, Ralph K ) Event Code: SLOW

10/25/2011 gJ APPLICATION FOR SUBPOENA (Judicial Officer: Burgess, Ralph K) Event Code: APPLISUBP Memo: DEFENDANT

I 0/25/2011 gJ ISS SUBPOENA(S) (Judicial Officer: Burgess, Ralph K) Event Code: /SS/SUBP

I 0/25/2011 TRIAL DATE SET (Judicial Officer: Burgess, Ralph K ) Event Code: TRIAL Memo: 1111 @ 9A NB

10/26/2011 g:j Order to Appear Event Code: OA

10/31/2011 g:j MOTION IN LIMINE (Judicial Officer: Burgess, Ralph K) Event Code: MOT/IN/LIM

PAGE40F9 Printed on 09/16)}015 at I 0:56AM

5TH DISTRICT COURT

CASE SUMMARY CASE No.llF0763-005

10/31/2011 qj MOTION IN LIMINE (Judicial Officer: Burgess, Ralph K) Event Code: MOT/IN/LIM

10/31/2011 qj SUBPOENA RETURN SERVED (Judicial Officer: Burgess, Ralph K) Event Code: SRS

10/3112011 qj SUBPOENA RETURN SERVED (Judicial Officer: Burgess, Ralph K) Event Code: SRS

11/01/201 I qj ELECTION/PUNISHMENT BY THE JURY (Judicial Officer: Burgess, Ralph K) Event Code: ELECTION

1110112011 Jury Sworn (OCA) (Judicial Officer: Burgess, Ralph K) Event Code: ]/SWORN

11/01/201 I JURY VOIR DIRE (Judicial Officer: Burgess, Ralph K) Event Code: ]/VOIR DIRE

I 11011201 I [j JURY PANEL LIST (Judicial Officer: Burgess, Ralph K) Event Code: JPL

I 1/011201 I [j JURORS SELECTED (Judicial Officer: Burgess, Ralph K) Event Code: JUS

11/01/2011 [j JURY SHUFFLE- I ST (Judicial Officer: Burgess, Ralph K ) Event Code: lSI

11103/201 I ~CHARGE ON PUNISHMENT (Judicial Officer: Burgess, Ralph K) Event Code: PUNISHMENT!CH

I 1/03/201 I ~CHARGE OF THE COURT (Judicial Officer: Burgess, Ralph K) Event Code: ]/CHARGE

11103/201 1 ~RECEIPT OF EXHIBITS (Judicial Officer: Burgess, Ralph K) Event Code: REE Memo: TRIAL EXHIBITS

11103/2011 ~Disposition (Judicial Officer: Burgess, Ralph K) Coni Type: TDC (TEXAS DEPT CORRECTIONS) Coni Length: 50Yrs Sentence Date: Nov 3 201112:00AM To Commence: Nov 3 201112:00AM Reporter: JR (lANA ATCHISON RUSHING) Jury Trial: Yes I. MURDER Not Guilty

I 1/03/2011 Sentence (Judicial Officer: Burgess, Ralph K) I. MURDER Adult Sentence Confinement to Commence I 1103/20 II 50 Years, Texas Department of Criminal Justice, Texas Department of Criminal Justice

11118/201 I qj ORDER FOR PAYMENT OF WITNESS EXPENSES 11130/201 I CJIS FORM (Judicial Officer: Burgess, Ralph K) Event Code: CJIS

PAGE 5 OF 9 Printed on 09/16~015 at 10:56 AM

5TH DISTRICT COURT

CASE SUMMARY CASE No.llF0763-005

11130/2011 {ij LETTER COMMITMENT PAPERS (Judicial Officer: Burgess, Ralph K) Event Code: LTRICP

12/0112011 ~MOTION FOR NEW TRIAL (Judicial Officer: Burgess, Ralph K) Event Code: MOINW/JRL

01/30/2012 Notice of Appeal Transcript Due: Mar 2 2012 12:00AM Motion New Trial: Dec 1 201112:00AM Notice of Apppeal: Jan 30 2012 12:00AM Attorney: M.MOWLA (MICHAEL MOWLA) Active: No

01130/2012 {icl Notice of Appeal 0113112012 CIDAICRICOA (Judicial Officer: Burgess, Ralph K) Event Code: CDACRCOA

01131/2012 ~ORDER FOR ATTORNEY WITHDRAW (Judicial Officer: Burgess, Ralph K) Event Code: OGA W

01131/2012 <ij ORDER TO APPOINT ATTORNEY ON APPEAL (Judicial Officer: Burgess, Ralph K) Event Code: ORAAA

0113112012 <ij AFFIDAVIT OF INDIGENCY (Judicial Officer: Burgess, Ralph K) Event Code: AOI

02/0112012 <ij REQUEST REPORTER'S RECORD (Judicial Officer: Burgess, Ralph K) Event Code: RFRR

02/0112012 <ij REQUEST CLERK'S RECORD (Judicial Officer: Burgess, Ralph K) Event Code: REQICR

02/03/2012 {ij LETTER COURT OF APPEALS NOTICE OF APPEAL RECEIVED (Judicial Officer: Burgess, Ralph K) Event Code: LCOANR

02/07/2012 <ij EXHIBITS CHECKED OUT (Judicial Officer: Burgess, Ralph K) Event Code: EXC

02/07/2012 {ij Capias Returned Unserved Event Code: CU

02/17/2012 QJ EXHIBITS RETURNED (Judicial Officer: Burgess, Ralph K) Event Code: EXRE

03/0112012 ~Clerks Record Event Code: CR

03/06/2012 QJ REQUEST REPORTER'S RECORD (Judicial Officer: Burgess, Ralph K) Event Code: RFRR

03/06/2012 {icl Trial Court Certificate Event Code: TCC

PAGE 6 OF 9 Printed on 09/I6J20J5 at I 0:56AM

5TH DISTRICT COURT

CASE SUMMARY CASE No. 11F0763-005

03/07/2012 Q;J Trial Court Certificate Event Code: TCC

03/07/2012 Q;J ORDER (Judicial Officer: Burgess, Ralph K) Event Code: ORDER Memo: GRANTING MOTION FOR FREE REPORTER'S RECORD & CLERK'S RECORD

03/07/2012 ~Clerks Record Event Code: CR Memo: 1ST SUPPLEMENTAL

03/07/2012 Q;j COURT OF APPEALS LETTER (Judicial Officer: Burgess, Ralph K) Event Code: COAL

03/08/2012 QJ REPORTERS RECORD (Judicial Officer: Burgess, Ralph K) Event Code: RR Memo: VOL 1-5 ON CD AND VOL 6 A HARD COPY

03/09/2012 Q;j CARD RECEIVED FROM COURT OF APPEALS (Judicial Officer: Burgess, Ralph K) Event Code: CARD

04/27/2012 Q;J Grant/Approval Event Code: GRANT

04/30/2012 C/C TO AUDITOR (Judicial Officer: Burgess, Ralph K) Event Code: CA

05/17/2012 Q;j REPORTERS RECORD CHECKED OUT (Judicial Officer: Burgess, Ralph K) Event Code: RRC Memo: SENT VIA COURIER TO KRISTJAN YOUNG- DA 'S OFFICE

09/07/2012 ~COURT OF APPEALS OPINION (Judicial Officer: Burgess, Ralph K) Event Code: CTS OPINION

09/07/2012 ~COURT OF APPEALS JUDGMENT AFFIRMED (Judicial Officer: Burgess, Ralph K) Event Code: COAJA

09/10/2012 ~REPORTERS RECORD RETURNED (Judicial Officer: Burgess, Ralph K) Event Code: RRRE Memo: VOL 6 OF 6 RETURNED

03115/2013 ~MANDATE/ AFFIRMED (Judicial Officer: Burgess, Ralph K) Event Code: MANA

05/13/2014 Q;j HABEAS CORPUS POST CONVICTION (A) - Copy to Court and DA

05/13/2014 QJ MEMORANDUM OF LAW 05/22/2014 REPORTERS RECORD CHECKED OUT Leisa Pearlman

07/21/2014 ~AMENDED APPLICATION FOR WRIT OF HABEAS CORPUS

07/21/2014 Q;j MEMORANDUM OF LAW AMENDED

PAGE70F9 Printed on 09/J6JOJ5 at 10:56 AM

5TH DISTRICT COURT

CASE SUMMARY CASE No.l1F0763-005

07/30/2014 ~MOTION TO RELEASE ITEMS FOR TESTING

07/31/2014 ~Order Setting Hearing 8129114 9am NB

08/18/2014 ~ Order Setting Hearing 9/11114 1:30pm NB

09/11/2014 Motion Hearing (I :30 PM) (Judicial Officer: Burgess, Ralph K) DNA TESTING

09/23/2014 ~ORDER Order for Scientific Testing. .. sent certified copy to DA, Leisa Pearlman, Craig Henry, F. Clinton Broden

10/21/2014 ~ORDER for evidence to be handed over to TTPD and then to Forensic Ballistics in Ft Worth, Tx. for testing.

11/10/2014 ~EXHIBITS CHECKED OUT by Scott Lillis with TTPD - #66, 67, 68, 69, 70 and 71

03/02/2015 REPORTERS RECORD RETURNED s Becky brought back. Record was on Leslie desk after Leisa left.

05/04/2015 ~ Motion for Extension of Time 05/12/2015 m Clerks Record 05112/2015 {i:l Clerks Record to CCA

05/12/2015 {ij LETTER CLERK RECORD MAILED F. Clinton Broden Attorney

06118/2015 ~COURT OF CRIMINAL APPEALS ORDER/WRIT Supplemental to be mailed within 120 days

06/26/2015 QJ MEMORANDUM OF LAW SUPPLEMENTAL-Copy to Court

08/03/2015 ~Order Setting Hearing on HABEAS CORPUS for 8/28/2015 9am NB

08/06/2015 ~HEARING RESET on HABEAS CORPUS for 9/11/2015 lOam NB

08/28/2015 Hearing (9:00AM) (Judicial Officer: Miller, Bill) 30 Minutes-Habeas

09/11/2015 ~Motion for Extension of Time

PAGE80F9 Printed on 09/16~015 at I 0:56AM

5TH DISTRICT COURT

CASE SUMMARY CASE No. 11F0763-005

09/11/2015 gJ RECEIPT OF EXHIBITS 09111/2015 Hearing (I 0:00AM) (Judicial Officer: Miller, Bill) 30 Minutes-Hearing on Writ of Habeas Corpus DATE FINANCIAL INFORMATION

Defendant DEWBERRY, STEDMON MONTREL Total Charges 259.00 Total Payments and Credits 0.00 Balance Due as of 9/16/2015 259.00

PAGE90F9 Printed on 09116/2015 at 10:56 AM

5th District Court COURT DOCKET •11F0763-00S 09/22/ll

STATE OF TEXAS vs STEDMON MONTREL DEWBERRY

MURDER

DATE OF ORDERS I ORDl.;RS 0!~ COURT

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BRODEN, MICKELSEN HELMS & SNIPES LLP FILED FOR RECORfi 2015 JUN 26 PM J: OS *Board Certified, Criminal Law· Texas Board of Legal Specialization *Board Certified, Criminal Appellate Law· Texas Board of Legal Spectali' · A team approach to criminal defense F. Clinton Broden* Mick Mickelsen• Michael Snipes

June 24, 2015

Bowie County District Clerk 710 James Bowie Drive New Boston, Texas 75570-3512

Dear District Clerk:

Please find the original Supplemental Memorandum of Law in Support of Application for Writ of Habeas Corpus Pursuant to Tex. Code Crim. P. Art. 11.07.

I have also enclosed, along with a self-addressed, stamped envelope, one extra copy of each for file stamping.

If you have any questions or concerns please feel free to contact us at the number below. Thank you for your assistance.

Sincerely,

Enclosures (2) Cc w/ Enclosure: Bowie County District Attorney's Office 710 James Bowie Drive New Boston, Texas 75570-3512

2600 State Street • Dallas, Texas 75204 • Tel. (214) 720-9552 • Fax (214) 720·9594 www.DallasCriminaiLawyers.com

No. 11F0763-005-A r:·ILEO FOR RECORU 201~ JUN 26 PH J: 05 EXPARTE ) 5th DISTRICT COURT ) ___________________ STEDMON DEWBERRY ) ) BOWIE COUNTY, TEXA

SUPPLEMENTAL MEMORANDUM OF LAW IN SUPPORT OF APPLICATION FOR WRIT OF HABEAS CORPUS PURSUANT TO TEX. CODE CRIM. P. ART.ll.07

I. INTRODUCTION

As noted in Stedmond Dewberry's Memorandum of Law in Support of Application for Writ ofHabeas Corpus Pursuant to Tex. Code Crim. P. Art. 11.07, the sole focus of the trial in this case was the question of who shot, Latasha Antwine. Was it Mr. Dewberry, as repeatedly argued by the State, or was it Brioni Dansby or Brandon Antwine?

In his Application, Mr. Dewberry argued, inter. alia, that he was denied effective assistance of counsel when his trial attorney failed to consult with, retain and call as a witness a ballistics expert. Indeed, Mr. Dewberry's trial counsel had submitted an affidavit stating that the only reason he did not retain a ballistics expert was because of cost. See Attachment 1. 1

The United States Court of Appeals for the Fifth Circuit has held several times

1 The Court of Criminal Appeals has made clear that an attorney can be found to be ineffective when he declines to hire an expert for economic reasons even if that attorney is retained. See, e.g., Ex Parte Briggs, 187 S.W.3d 458 (Tex. Crim. App. 2005).

that it can constitute deficient performance for a trial attorney to fail to consult with and present the testimony of a ballistics expert in a case such as this. Williams v. Thaler, 684 F.3d 597, 604 (5th Cir. 2012) ("It is uncontested here that trial counsel's performance fell below an objective standard of reasonableness. Williams's counsel failed to obtain any independent ballistics or forensics experts, and was therefore unable to offer any meaningful challenge to the findings and conclusions ofthe state's experts .... "); cert. denied, 133 S.Ct. 866 (2013); Draughon v. Dretke, 427 F.3d 286, 295-97 (5th Cir. 2005) (State habeas court unreasonably applied settled federal law in holding that trial counsel had not been ineffective in failing to obtain forensic examination ofpath of fatal bullet.), cert. denied, 547 U.S. 1019 (2006); Soffar v. Dretke, 368 F.3d 441, 478-79 (5th Cir. 2004) (Trial counsel was found ineffective where he "failed to consult with a ballistics expert" even though the physical crime scene evidence was a key issue in the case). 2

II. RESULTS OF BALLISTIC/DNA TESTING

Over the State's objection, this Court ordered the release of all the ballistic evidence in this case for scientific testing. Included among the items released was a bullet fragment identified by the State in its crime scene investigation as CSE-2 and

2 Likewise, the Court of Criminal Appeals has acknowledged that a trial attorney's failure to present the testimony of a ballistics expert could constitute ineffective assistance of counsel when it remanded a case for further factual development on this issue. Ex parte Vargas, 2006 WL 3086217 (Tex. Crim. App. Nov. 1, 2006).

2 *15 at trial as State's Exhibit 66. Ballistics expert Richard Ernest was first able to determine that State's Exhibit 66 was a .40 caliber bullet. See Attachment 2. Mr. Ernest was able to remove biological material from this .40 caliber bullet. !d. This biological material was later sent to Cellmark Forensics for testing. ld. Although Cellmark did not have a sample of the DNA from the female victim in this case, Cellmark did confirm that the biological material from the .40 caliber bullet contained female DNA. See Attachment 3. Significantly, it was undisputed at trial that Mr. Dewberry was firing a 9mm weapon and Brioni Dansby was frring a .40 caliber weapon. 3 Moreover, the State actually argued in its closing that it was "common sense" that CSE-2/Exhibit 66 came from Dansby's gun. See November 3, 2011 Transcript at 50.

In light of this finding, Mr. Dewberry submits that his trial counsel did, in fact, afford him ineffective assistance of counsel because of his failure to undertake scientific testing of the ballistics evidence in this case. The knowledge that the .40 caliber bullet contained traces of female DNA raises "a reasonable probability" of a different result had this information been made known to the jury. Strickland v.

3 Moreover, according to the State's crime scene diagram, this bullet was located between where Brioni was firing and where Mr. Dewberry was firing but it was located significantly closer to Mr. Dewberry further indicating it was shot by Brioni toward Mr. Dewberry. 3

Washington, 466 U.S. 668, 694 (1984). 4 Indeed, Mr. Dewberry submits that this knowledge alone is sufficient to undermine the confidence in the verdict and sentence in this case. Alternatively, it justifies a comparison ofthe victim's DNA, if available, to the DNA removed from Exhibit 66 and/or a ballistic comparison between State's

4 Strickland defines a ..reasonable probability" as "a probability sufficient to undermine confidence in the outcome." Id. at 694. Strickland itself expressly rejected an "outcome determinative standard" requiring the defendant to show that counsel's deficient conduct "more likely than not altered the outcome" of the case. Strickland, 466 U.S. at 693-94 (1984). Instead, "[t]he result of a proceeding can be rendered unreliable, and hence the proceeding itself unfair, even if the errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome." I d. Thus, the "reasonable probability" standard - a probability sufficient to wderrnine confidence in the outcome - is a less onerous burden than even the preponderance of the evidence standard. Strickland makes this clear:

[W]e believe that a defendant need not show that counsel's deficient conduct more likely than not altered the outcome in the case. This outcome-determinative standard has several strengths. It defines the relevant inquiry in a way familiar to courts, though the inquiry, as is inevitable, is anything but precise. The standard also reflects the profowd importance of finality in criminal proceedings. Moreover, it comports with the widely used standard for assessing motions for new trial based on newly discovered evidence. See Brief for United States as Amicus Curiae 19-20, and nn. 10, 11. Nevertheless, the standard is not quite appropriate.

Even when the specified attorney error results in the omission of certain evidence, the newly discovered evidence standard is not an apt source from which to draw a prejudice standard for ineffectiveness claims. The high standard for newly discovered evidence claims presupposes that all the essential elements of a presumptively accurate and fair proceeding were present in the proceeding whose result is challenged. An ineffective assistance claim asserts the absence of one of the crucial assurances that the result of the proceeding is reliable, so finality concerns are somewhat weaker and the appropriate standard of prejudice should be somewhat lower. The result ofa proceeding can be rendered unreliable, and hence the proceeding itselfunfair, even ifthe errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome.

Id. at 693-94 (citation omitted) (emphasis added). 4

Exhibit 66 and Dansby's .40 caliber gun.

Respectfully submitted,

F. Clinton Broden Tx. Bar 24001495 Broden, Mickelsen, Helms & Snipes 2600 State Street Dallas, Texas 75204 214-720-9552 214-720-9594 (facsimile)

Attorney for Applicant Stedmon Dewberry

CERTIFICATE OF SERVICE

I, F. Clinton Broden, certify that, on June 24, 2015, I caused a copy of the above document to be served via first class mail, postage prepaid, on:

Bowie County District Attorney's Office 710 Bowie Drive New Boston, Texas 75570-3512

F. Clinton Broden

ATTACHMENT 1

• • <' 19 *20 :

AFFIDAVIT OF JOHNNY P• .ARNOLD

Jolmny P. Arnold, being at least eighteen years of age, pursuant to Texas Civil Practice and

Remedies Code§ 132.001, deposes and states as foJJows:

1. I have been license to practice law in the State of Texas since 1977.

2. I was retained to represent Stedmon Dewbmy against murder charges brought in the Fifth District Court in case number 11 F0763..00S

3. The simple fact is that the Dewberry fiunily could not afford to hire a ballistics expert so I did not obtain an expert. I even had to cut my fee so they could afford to hire an appellate attorney.

My name is Johnny P. Arnold, my date ofbirtb is November 11, 1949, and my address is

4015 N. Stateline Avenue, Texarkana, Texas 77503. I declare under penalty of perjury that the

foregoing is true and correct.

Executed in Bowie County, State of Texas, on the /5 day May .2014

10HNNY P. ARNOLD *21

ATTACHMENT 2

No. __________________ ORIGlN.\L EX PARTE ) 5th DISTRICT COURT ) STEDMON DEWEBERRY ) BOWIE COUNTY, TEXAS

AFFIDAVIT OF RICHARD N. ERNEST

Richard N. Ernest, being at least eighteen years of age, deposes and states as follows:

1. I am an expert in the field of forensic ballistics and the reconstruction of shooting scenes. I have been in this field since 1977 and have worked at the Georgia Bureau oflnvestigation and the Tarrant County Medical Examiner's Office. I am a member of several professional organizations and a Distinguished Member of the Association of Firearms & Toolmarks Examiners. I have authored several papers in these areas. I have worked on well over 10,000 firearms related cases including numerous cases involving shooting scene reconstructions. I have testified in state, federal and military courts throughout the nation and believe I have offered testimony in over I ,000 cases. My resume is attached to this affidavit.

2. As per this Court's order, I was provided with what purported to be all bullets, bullet components and fragments related to this case. I was provided with seven items. I noted that it does not appear that I was provided CSE-1 5 which was allegedly a bullet found at the crime scene. Likewise, I was not provided CSE-13 which was described as a copper bullet jacket removed from a white Mercury Grand Marquis.

3. Nevertheless, included in the material I received was a bullet identified by the State in its crime scene investigation as "CSE-2." CSE- 2 was located in the vicinity of where Mr. Dewberry was alleged to have been standing during the incident in question. In my internal notes I refer to CSE-2 as Item 2A.

4. Based upon my examination, I have concluded that CSE-2/Item 2A was fired from a .40 caliber weapon. My understanding is that it was undisputed that, during the incident, Mr. Dewberry was firing a 9mm weapon and Brioni Dansby was firing a .40 caliber weapon.

5. I determined that the .40 caliber bullet identified as CSE~2/Item 2A contained trace evidence. I removed a sampling of this trace evidence and packaged it in an epp. tube and envelope and labeled the package Item 2B. At the direction ofF. Clinton Broden I then sent Item 2B by overnight delivery to Cellrnark Laboratories for further testing.

My name is Richard N. Ernest, my date of birth is o2..fti.h 151 , and my address f[

lS 'o5t> -,:. LA,JcA'Y[S"- A~~'f .fi~r ~~m,:r'l ..,,.,2- I declare under penalty of perjury that the foregoing is true and correct.

Executed in '1:Au~t.w:r County, State on£&\-s ,onthe qi_ day April, 2015.

1?1J 1{. Y--· RICHARD N. ERNEST

. .

ATTACHMENT 3

•Cellmlrk 13988 DiplollUit Dr. Suite 100

~FORENSICS Dallas TX 75234 Phone: 1-800-752-2774 ........................... ..... " Report of Laboratory Examination Fax: 214-271-8322

Aprill4, 2015 Supplemental- FR15-0025-A F. Clinton Broden Broden, Mickelsen, Helms & Snipes 2600 State Street Dallas, TX 75204

CELLMARK FORENSICS NO: FRlS-0025 AGENCY CASE NO: 2014-0423-CRD ADD'L AGENCY NO: N/A EXHIBITS

Client Item CF Item Received Item Description PCR 2014-0423..CRD-001-2B FRIS-0025-01 1/30/2015 Trace Evidence y

RESULTS DNA testing using the polymerase chain reaction (PCR) and the MiniFiler™ STR Amplification Kit was perfonned on Item 01. The loci tested and the results obtained for each tested sample are listed in Table 1 (see attachment).

DNA testing using the polymerase chain reaction (PCR) and the AmpFlSTR Identifiler PiusTM Amplification Kit was performed on Item 01. The loci tested and the results obtained for each tested sample are listed in Table 2 (see attachment).

This report supplements Cellmark Forensics' Laboratory Report FRIS-0025 dated February 25, 2015.

CONCLUSIONS

FRIS-0025-01.01.1 The partial DNA profile obtained from the trace evidence is consistent with originating from an unknown female. Comparison to a reference sample(s) will be made upon request.

DISPOSITION In the absence of specific instruction, evidence will be retmned to the submitting agency by Federal Express or another appropriate carrier.

Cellmark Forensics 201 ~23-CRD I FR15...(}()2S-A Accredlled by the American Society of Crime Laborawry Director.s/Laboratory Accreditation Board· IntemaJjonaJ 1 of22s

·····-·-··········- -------------------- ·.

REVIEW The results described in this report have been reviewed by the folio Technical Analyst: Reviewer: ratmy Director

Proceckuv used in tile analysis of this ~ase adhere to the Quality ASSUilloce Sranclartli for FORDSic DNA Ttsting Laboratories. CeUmarlc. Forcosics is accredited by the American Society of Crime Laboralory Direct01'SIL.abonltoJY Accreditation Boanl. Tho row!Ja io thia ~on relate oaly to tllo item& tosted.

April 14, 201S Ce/Jmark Fore~ics 2014-0423-CRDI FR 15-0025-A Accredited by the American Society ofCrime Laboratory Dlnctcm/Laboratory Accredil{ltiqn Board -lnt8matjonol 2 of226

..

13988 Diplomat Dr. Suite 100 • ICellmark Report of Laboratory Examination Dallas TX 75234 Phone: 1-800-752-2774 ~FORENSICS ................. , ........... . Fax: 214-271-8322

llbC«p ~Tes111tg- 4/14/2015 Supplemental - FRIS-0025-A CELLMARK FORENSICS NO: FRlS-0025 AGENCY CASE NO: 2014-0423-CRD ADD'I, AGENCY NO: N/A

Table I MiDI Filer Sample Name ........ ...... ~ ....... Q c;)

i..... Q ~

~ '< ........aD - {l.l N Q ... {l.l

a 0\ :l ~ ... Q .... lrl

... ril Q -"" 0

t:J {,) ~ "" Trace Evidence 11,13 )()- X- 24- 27,29 11, 12 16, 18 11- 23- FRI S-0025-01.01.1 20 t 4-0423-CRD-001-28 I

X=Female -=Below 5tochastic threshold Additional peak(s) may be present below limit of detection. The results listed in the table do not depict intensity differences. Only alleles exceeding validated analysis threshold are included in table.

1\.l ..... Supplemental- FRlS-0025-A Accredited by the Ameriam Socifty of Crime LabQTQJory Directon!Laboratory Accreditati011 Board- 111/ematiortaJ I of 2

1 Cell11181'k Report of Laboratory Examination 13988 Diplomat Dr. Suite I 00 Dallas TX 75234 Phone: 1-800-752-2774 •

EFORENSICS Fax: 214-271-8322 •' IMoq) $iiKiellJTesllng GI'QVII 4/14/2015 Supplemental- FR15-0025-A CELLMARK FORENSICS NO: FRIS-0025 AGENCY CASE NO: 2014-0423-CRD ADD'L AGENCY NO: N/A

Table% ldentifiler Pin ..,... - --... ... Sample Name ..,on ....... - oc ~ = 0 on .... .... 1"'- 01 QO oc .... ~ 1"'- ...Do ~ < ~ ~ i..... ~ ...~.... i.... ~ Ill rn OD ril N ~ 8 .... I,D ~ ~ ~ .... ~ Q Q Q v = Q Q Q Cl _i Trace Evidence NR NR NR NR NR NR NR NR NR NR NR NR NR NR NR NR FRIS-002S-OLOLl 20 14-0423-CRD-001-28 I

--- - L__ -

X=Female NR = No Result The results listed in the table do not depict intensity differences. Only alleles exceeding validated analysis tlm:shold are included in table.

N 00

SuJiplemental - FR I 5-(){)2.5-A A.ccrediteri by tire American Society ofCrime LoboraJory Directors/Laboratory Accndilalion Boarri- lnternalioPIDI 2 of 2

;-iLED FOR RECOHO No. 11 F0763-005-A ZO 15 AUG I 0 PM J: 31 STATE OF TEXAS

vs. :.:~~!BOWIECO X ------ J'JF.PII Y STEDMON DEWBERRY BOWIE COUNTY, TEXAS

ORDER SETTING HEARING ON DEFENDANT'S WRIT OF HABEAS CORPUS

The Court is of the opinion that the Defendant is entitled to a hearing on his writ of habeas corpus. It is therefore ordered that a hearing is set for the 28th day of August, 2015 at 9:00 o'clock a.m. in the 5th Judicial District Courtroom located on the 2nd floor of the Bowie County Courthouse, New Boston, Texas.

Signed and entered on the 3rd day of August, 2015.

Bill Miller, District Judge

'29

I! IIIIII IIII .::t·Lr·r, rno ; ! L. ;,I , \,'1 I cr:c·'ORO r\ '-

2ul5 AUG 17 AH 9: II Craig L. Henry - ;! . : \_,c! : ~- ..,. j

Gi3m l ••-_-_. I '...1 f '.

CLEH!~ BOWIE CO TX ATTORNEY AT LAW

Billy Fox Branson Bowie County District Clerk Bowie County Courthouse New Boston, Texas

Re: State of Texas vs. Stedmon Dewberry Cause No. 11F0763-005-A

Dear Billy:

Enclosed herewith please find an original and one (1) copy of Order Rescheduling Hearing on Defendant's Writ of Habeas Corpus. Please file the original, affix your file stamp to the copy and return same to my office.

By copy of this letter, I am serving a true and correct copy of the foregoing letter on Lauren Sutton, Assistant District Attorney for Bowie County via hand delivery - return receipt requested.

Thank you for your attention in this regard. Should you have any questions or concerns, please don't hesitate to call.

Sincerely,

CLH/kf Enclosures Cc: Lauren Sutton- hand delivery- return receipt requested

No. IIF0763-005-A 2[! 15 AUG 17 AM 9: 11

STATE OF TEXAS

vs. STEDMON DEWBERRY BOWIE COUNTY, TEXAS

ORDER RESCHEDULING HEARING ON DEFENDANT'S WRIT OF HABEAS CORPUS

The August 28th hearing previously set in this case is hereby reset for September II, 2015 @ 10: 00 a.m. in the 51h Judicial District Courtroom located on the 2"d floor of the Bowie County Courthouse, New Boston, Texas.

Signed and entered on the 6th day of August 2015.

Bill Miller, District Judge

RECEIPT FOR EXHIBITS~ CCP. 2.21 & TRC 75a

§ IN THE DISTRICT COURT § ../'(" -'}·1 • •- J Ic:o- R--, RVf:'.',:.·:· .-.:' .-. ;~r, ._ •··· ~- " ..

! ........ § STH JUDI~IA~rnf~~t PH J2: 27 § ..... v-o, ~ ~~~... § BOWIECO~I~r80~,11£CO.D:. I, L"lie P. Bat,., Court Reporter fo~ the 5th District Court, do here~/~< Branson, District Clerk in and for Bowie County, Texas, the following exhibits in the above numbered and styled cause:

Exhibits

1. 1. 2. 2. 3. 3. 4. 4. 5. 5. 6. 6. 7. 7. 8. 8. 9. 9. 10. 10. 11. 11. 12. 12. 13. 13. 14. 14. 15. 15.

~~ Court Reporter I, Billy Fox Branson, District Clerk, do hereby acknowledge receipt of the above-listed exhibits in the above numbered a:"d styled cause.

Dated this the rAA day of ~ 'zo1.5_. Billy Fox Branson, District Clerk Bowie Countyt Texas

, Deputy

;:!LED FOH RECORD IN THE COURT OF CRIMINAL APPEALS OF TEXAS 2815 SEP It PH 3: 15 No. WR~83, 308-01

------------------------------------------~~?-~~~~~~~y MOTION FOR EXTENSION OF TIME TO MAKE FINDI CONCLUSIONS OF LAW

TO THE HONORABLE JUDGES OF SAID COURT:

On or about May 13, 2014, Applicant, Stedmon Dewberry, filed a Writ of Habeas Corpus, followed by an Amended Writ of Habeas Corpus on July 21, 2014, asserting ineffective assistance of trial counsel. On or about July 30, 2014, Applicant filed a Motion to Release Items for Testing. The 5th District Court held a hearing on said Motion on September 11, 2014. Thereafter, on September 23, 2014, the Court entered an Order for Scientific Testing, and on October 21, 2014, the court entered an Order for evidence to be turned over to the Texarkana Police Department and then to Forensic Ballistics Consultant and Laboratory in Ft. Worth, Texas for testing and submission of a report. The Order further stated that upon the completion of testing, the evidence should be returned to the Texarkana Police Department by overnight delivery.

On or about June 18,2015, the Court of Criminal Appeals entered an Order directing the District Court to make findings of fact and conclusions of law it deems relevant and appropriate to the disposition of Applicant's claim for habeas corpus reliefv.ithin 90 days of the Order. The Order further stated that an extension of time shall be obtained from the Court.

On or about JW1e 26, 2015, App1icant filed a Supplemental Memorandum of Law in support of Application for Writ of Habeas Corpus, attaching the Affidavit of his ballistics expert, and discussing the expert's findings. As a result of the ballistics testing performed by the expert, a hearing was held on September ll, 20 15 to discuss the need for additional testing to determine whether the biological matter allegedly found on a bullet matched the victim's DNA. The Court ordered that the State take possession of the bullet in question and attempt to secure additional DNA testing on the bullet or otherwise determine that no DNA matching the victim could be found absent exhuming the victim. The Court has ordered the State to present a preliminary determination to the Court within fourteen days of the September 11, 2015 hearing on (i) whether comparative DNA samples can be obtained and (ii) the time frame tor conducting a comparative DNA analysis if sample can be obtained.

Accordingly. until it is determined whether DNA testing may be performed, and if so, until said testing is performed, the District Court cannot make findings of fact and conclusions of law as additional forensic analysis is required.

To further complicate matters, the Court ordered the District Court to order trial counsel to respond to Applicant's claims of ineffective assistance of counsel. Applicant's trial counsel is deceased, and therefore. an affidavit responding to Applicant's ineffective assistance of counsel claims cannot be obtained from trial counsel.

Therefore, the Court requests an extension of time to enter findings of facts and conclusions of law in connection with Applicant's Application for Writ of Habeas Corpus to and until a determination is made as to whether DNA testing can be performed, and if so, until such times as testing is performed, a report is prepared and the Court has an opportunity to evaluate said report and prepare its findings of fact and conclusions oflaw.

Signed this 11th day ofSeptember 2015.

Bill Miller,Judge 5th District Court of Bowie County

CCA No. WR-83, 308-01 Extension of Time Page2 34

CLERK'S CERTIFICATE

THE STATE OF TEXAS

COUNTY OF BOWIE

I, BILLY FOX, Clerk of the 5th District Court of Bowie County, Texas do hereby certify that the above and foregoing are true and correct copies of the originals as on file in my office.

GIVEN UNDER MY HAND AND SEAL OF THE SAID COURT at office in New Boston, Texas, this the on this the 16th day of September, 2015.

BILLY FOX, DISTRICT CLERK BOWIE COUNTY, TEXAS

\\

ori Caraway, Supervisor Criminal Department