Case Information
*1 <63 ~o~·_.o\ I Ex Parte Application for Writ of Habeas Corpus
From Bowie County DATE: _01~ 25 1 { STEDMON MONTREL DEWBERRY FILE IN WRIT FILE (Name of Applicant) 5th District Court BY: ..... (JqL 1 51 SUPPLEMENTAL
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
1. COURT'S DOCKET
2. DOCKET SHEET 10
3. SUPPLEMENTAL MEMORANDUM OF LAW 12 29
4. ORDER SETIING HEARING
5. ORDER RESCHEDULING HEARING 30 32
6. RECEIPT OF EXHIBITS
7. MOTION FOR EXTENSION OF TIME
8. CLERK'S CERTIFICATE *3 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: § 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
CASE ASSIGNMENT DATE
Current Case Assignment Case Number IIF0763-005 Court 5th District Court 09/22/2011 Date Assigned
Judicial Officer Burgess, Ralph K
PARTY INFORMATION
Lead Attorneys State STATE OF TEXAS
Defendant HENRY, CRAIG L ~DEWBERRY, STEDMON MONTREL Retained 903-792-4645(W)
DATE EVENTS & ORDERS OF THE COURT INDEX
$FILE (Judicial Officer: Burgess, Ralph K) 09/22/2011 Event Code: $FILE Memo: Automatic File Date Event
PAGE I OF9 Printed on 09/1 6itoJ 5 at I 0:56AM *4 5TH DISTRICT COURT
CASE SUMMARY
CASE No. 11F0763-005 QJ COURT DOCKET (Judicial Officer: Burgess, Ralph K)
09/22/2011
Event Code: COUD
09/22/2011 ~Filed by Indictment (OCA)
Event Code: IND ~CAPIAS ISSUED (Judicial Officer: Burgess, Ralph K).
09/23/2011
Event Code: KPS Pre-Trial Reset
09/27/2011 Event Code: PRTR Memo: 10131@ 1:30? NB Pre-Trial Reset
09/27/2011 Event Code: PRTR Memo: 10/4@ 1:30? NB
09/28/2011 ~ Order to Appear
Event Code: OA ~APPLICATION FOR SUBPOENA (Judicial Officer: Burgess, Ralph K)
09/28/2011
Event Code: APPLISUBP
09/28/2011 ~Issue
Event Code: ISS
09/28/2011 ~ Order to Appear
Event Code: OA QJ Issue
09/29/2011
Event Code: ISS QJ APPLICATION FOR SUBPOENA (Judicial Officer: Burgess, Ralph K)
09/29/2011
Event Code: APPLISUBP QJ SUBPOENA RETURN SERVED (Judicial Officer: Burgess, Ralph K)
10/03/2011
Event Code: SRS QJ Order to Appear
I 0/04/2011
Event Code: OA PRE-TRIAL FINAL/RESET (Judicial Officer: Burgess, Ralph K)
10/04/2011 Event Code: PF Memo: 10/25
10/07/2011 ~APPLICATION FOR SUBPOENA (Judicial Officer: Burgess, Ralph K)
Event Code: APPLISUBP QJ Issue
10/07/2011
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 *5 5TH DISTRICT COURT
CASE SUMMARY I CASE No. 11F0763-005 qj APPLICATION FOR SUBPOENA (Judicial Officer: Burgess, Ralph K) 10/07/2011
Event Code: APPLISUBP qj Issue
10/07/2011
Event Code: ISS qj APPLICATION FOR SUBPOENA (Judicial Officer: Burgess, Ralph K)
10/12/2011
Event Code: APPLISUBP QJ Issue
10/12/2011
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 c:iJ SUBPOENA RETURN SERVED (Judicial Officer: Burgess, Ralph K)
10/12/2011
Event Code: SRS c:iJ APPLICATION FOR SUBPOENA (Judicial Officer: Burgess, Ralph K)
10/12/2011
Event Code: APPLISUBP c:iJ Issue
10/12/2011
Event Code: ISS
c:iJ APPLICATION FOR SUBPOENA (Judicial Officer: Burgess, Ralph K) 10112/2011
Event Code: APPLISUBP qj Issue
10/12/2011
Event Code: ISS {ij APPLICATION FOR SUBPOENA (Judicial Officer: Burgess, Ralph K)
10112/2011
Event Code: APPLISUBP QJ Issue
10112/2011
Event Code: ISS qj APPLICATION FOR SUBPOENA (Judicial Officer: Burgess, Ralph K)
10112/2011
Event Code: APPLISUBP
10/12/2011 ~Issue
Event Code: ISS
PAGE30F9 Printed on 09/16dOJ5 at 10:56 AM *6 5TH DISTRICT COURT
CASE SUMMARY
CASE No. 11F0763-005 qJ APPLICATION FOR SUBPOENA (Judicial Officer: Burgess, Ralph K) I 0/17/2011
Event Code: APPLISUBP qJ SUBPOENA RETURN SERVED (Judicial Officer: Burgess, Ralph K)
10117/2011
Event Code: SRS qJ SUBPOENA RETURN SERVED (Judicial Officer: Burgess, Ralph K)
10/17/2011
Event Code: SRS Q:J Issue
10118/2011
Event Code: ISS ~NOTICE (Judicial Officer: Burgess, Ralph K)
10/19/2011
Event Code: NOTICE Memo: EXPERTS ~STATES NOTICE OF INTENT TO USE EXTRENOUS OFFENSES (Judicial Officer:
10119/2011 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 gJ BENCH WARRANT ISSUED (Judicial Officer: Burgess, Ralph K)
10/21/2011
Event Code: BENCH gJ STATES WITNESS LIST (Judicial Officer: Burgess, Ralph K )
10/21/2011
Event Code: SLOW
gJ APPLICATION FOR SUBPOENA (Judicial Officer: Burgess, Ralph K) 10/25/2011
Event Code: APPLISUBP Memo: DEFENDANT gJ ISS SUBPOENA(S) (Judicial Officer: Burgess, Ralph K)
I 0/25/2011
Event Code: /SS/SUBP TRIAL DATE SET (Judicial Officer: Burgess, Ralph K )
I 0/25/2011 Event Code: TRIAL Memo: 1111 @ 9A NB g:j Order to Appear
10/26/2011
Event Code: OA g:j MOTION IN LIMINE (Judicial Officer: Burgess, Ralph K)
10/31/2011
Event Code: MOT/IN/LIM Printed on 09/16)}015 at I 0:56AM
PAGE40F9 *7 5TH DISTRICT COURT
CASE SUMMARY
CASE No.llF0763-005 qj MOTION IN LIMINE (Judicial Officer: Burgess, Ralph K) 10/31/2011
Event Code: MOT/IN/LIM qj SUBPOENA RETURN SERVED (Judicial Officer: Burgess, Ralph K)
10/31/2011
Event Code: SRS qj SUBPOENA RETURN SERVED (Judicial Officer: Burgess, Ralph K)
10/3112011
Event Code: SRS qj ELECTION/PUNISHMENT BY THE JURY (Judicial Officer: Burgess, Ralph K)
11/01/201 I
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 [j JURY PANEL LIST (Judicial Officer: Burgess, Ralph K)
I 11011201 I
Event Code: JPL [j JURORS SELECTED (Judicial Officer: Burgess, Ralph K)
I 1/011201 I
Event Code: JUS [j JURY SHUFFLE- I ST (Judicial Officer: Burgess, Ralph K )
11/01/2011
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 ~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 qj ORDER FOR PAYMENT OF WITNESS EXPENSES 11118/201 I
11130/201 I CJIS FORM (Judicial Officer: Burgess, Ralph K) Event Code: CJIS Printed on 09/16~015 at 10:56 AM
PAGE 5 OF *8 5TH DISTRICT COURT
CASE SUMMARY
CASE No.llF0763-005 {ij LETTER COMMITMENT PAPERS (Judicial Officer: Burgess, Ralph K) 11130/2011
Event Code: LTRICP
12/0112011 ~MOTION FOR NEW TRIAL (Judicial Officer: Burgess, Ralph K)
Event Code: MOINW/JRL Notice of Appeal
01/30/2012 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 {icl Notice of Appeal
01130/2012 CIDAICRICOA (Judicial Officer: Burgess, Ralph K) Event Code: CDACRCOA
01131/2012 ~ORDER FOR ATTORNEY WITHDRAW (Judicial Officer: Burgess, Ralph K)
Event Code: OGA W <ij ORDER TO APPOINT ATTORNEY ON APPEAL (Judicial Officer: Burgess, Ralph K)
01131/2012
Event Code: ORAAA <ij AFFIDAVIT OF INDIGENCY (Judicial Officer: Burgess, Ralph K)
Event Code: AOI <ij REQUEST REPORTER'S RECORD (Judicial Officer: Burgess, Ralph K)
02/0112012
Event Code: RFRR <ij REQUEST CLERK'S RECORD (Judicial Officer: Burgess, Ralph K)
02/0112012
Event Code: REQICR {ij LETTER COURT OF APPEALS NOTICE OF APPEAL RECEIVED (Judicial Officer:
02/03/2012 Burgess, Ralph K) Event Code: LCOANR <ij EXHIBITS CHECKED OUT (Judicial Officer: Burgess, Ralph K)
02/07/2012
Event Code: EXC {ij Capias Returned Unserved
02/07/2012
Event Code: CU QJ EXHIBITS RETURNED (Judicial Officer: Burgess, Ralph K)
02/17/2012
Event Code: EXRE
03/0112012 ~Clerks Record
Event Code: CR QJ REQUEST REPORTER'S RECORD (Judicial Officer: Burgess, Ralph K)
03/06/2012
Event Code: RFRR {icl Trial Court Certificate
03/06/2012
Event Code: TCC Printed on 09/I6J20J5 at I 0:56AM
PAGE 6 OF 9 *9 5TH DISTRICT COURT
CASE SUMMARY
CASE No. 11F0763-005 Q;J Trial Court Certificate
03/07/2012
Event Code: TCC Q;J ORDER (Judicial Officer: Burgess, Ralph K)
03/07/2012
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 Q;j COURT OF APPEALS LETTER (Judicial Officer: Burgess, Ralph K)
03/07/2012
Event Code: COAL QJ REPORTERS RECORD (Judicial Officer: Burgess, Ralph K)
03/08/2012
Event Code: RR Memo: VOL 1-5 ON CD AND VOL 6 A HARD COPY Q;j CARD RECEIVED FROM COURT OF APPEALS (Judicial Officer: Burgess, Ralph K)
03/09/2012
Event Code: CARD Q;J Grant/ Approval
04/27/2012
Event Code: GRANT
04/30/2012 C/C TO AUDITOR (Judicial Officer: Burgess, Ralph K) Event Code: CA Q;j REPORTERS RECORD CHECKED OUT (Judicial Officer: Burgess, Ralph K)
05/17/2012
Event Code: RRC Memo: SENT VIA COURIER TO KRISTJAN YOUNG- DA 'S OFFICE ~COURT OF APPEALS OPINION (Judicial Officer: Burgess, Ralph K)
09/07/2012
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 Q;j HABEAS CORPUS POST CONVICTION
05/13/2014
(A) - Copy to Court and DA QJ MEMORANDUM OF LAW
05/13/2014
05/22/2014 REPORTERS RECORD CHECKED OUT Leisa Pearlman
07/21/2014 ~AMENDED APPLICATION FOR WRIT OF HABEAS CORPUS Q;j MEMORANDUM OF LAW
07/21/2014
AMENDED
PAGE70F9 Printed on 09/J6JOJ5 at 10:56 AM *10 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 Motion Hearing (I :30 PM) (Judicial Officer: Burgess, Ralph K)
09/11/2014 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 REPORTERS RECORD RETURNED
03/02/2015 Becky brought back. Record was on Leslie s desk after Leisa left.
05/04/2015 ~ Motion for Extension of Time m Clerks Record
05/12/2015 {i:l Clerks Record to CCA
05112/2015 {ij LETTER CLERK RECORD MAILED
05/12/2015
F. Clinton Broden Attorney
06118/2015 ~COURT OF CRIMINAL APPEALS ORDER/WRIT
Supplemental to be mailed within 120 days QJ MEMORANDUM OF LAW
06/26/2015
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 Printed on 09/16~0 15 at I 0:56AM
PAGE80F9 *11 5TH DISTRICT COURT
CASE SUMMARY
CASE No. 11F0763-005 gJ RECEIPT OF EXHIBITS 09/11/2015 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 *12 5th District Court COURT DOCKET •11F0763-00S 09/22/ll
STATE OF TEXAS vs
STEDMON MONTREL DEWBERRY
MURDER I
DATE OF ORDERS ORDl.;RS 0!~ COURT
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*14 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* Michael Snipes
Mick Mickelsen• 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
*15 r:·ILEO FOR RECORU
No. 11F0763-005-A 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 of Habeas 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.
The United States Court of Appeals for the Fifth Circuit has held several times *16 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 of the 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).
*17 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.
*18 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 of the victim's DNA, if available,
to the DNA removed from Exhibit 66 and/or a ballistic comparison between State's
*19 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 *20 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 *21 ATTACHMENT 1 • <'
*22 :
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 *23 ATTACHMENT 2 *24 ORIGlN.\L
No. ________________ __
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 1 977
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. *25 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 , and my address f [
'o5t> -,:. L A,JcA'Y[S"- A~~'f .fi~r ~~m,:r'l ..,,.,2- I
lS
declare under penalty of perjury that the foregoing is true and correct. ,onthe qi_
Executed in '1:Au~t.w:r County, State on£&\-s
day April, 2015.
1?1J 1{. Y--·
RICHARD N. ERNEST *26 . .
ATTACHMENT 3 *27 •Cellmlrk 13988 DiplollUit Dr. Suite 1 00 Dallas TX 75234 Phone: 1-800-752-2774 ~FORENSICS
........................... " ..... Fax: 214-271-8322 Report of Laboratory Examination
Aprill4,
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 y
2014-0423..CRD-001-2B FRIS-0025-01 1/30/2015 Trace Evidence
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
(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. 201 ~23-CRD I Cell mark Forensics FR15...(}()2S-A 1 of22 s Accredlled by the American Society of Crime La bora wry Director.s/Laboratory Accreditation Board· IntemaJjonaJ
*28 ·····-·-··········- - - - - - - - - - - - - - - - - - - - - ·.
REVIEW
The results described in this report have been reviewed by the folio
Technical Reviewer:
Analyst:
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.
FR 15-0025-A April 14, 201S Ce/Jmark Fore~ics 2014-0423-CRDI Accredited by the American Society of Crime Laboratory Dlnctcm/Laboratory Accredil{ltiqn Board -lnt8matjonol 2 of226
*29 .. ICellmark 13988 Diplomat Dr. Suite 100 • Dallas TX 75234 Report of Laboratory Examination 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 "" - t:J ... .... .... .... aD - 0\ 0 c;) :l ~ ... i lrl ril ... Q ~ .... ... {l.l ~ ~ ... Q ~ a ..... {l.l "" N '< Q Q Q {,) X- 24- Trace Evidence 11,13 )()- 27,29 11, 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 1 Cell11181'k • 13988 Diplomat Dr. Suite I 00 Dallas TX 75234 Report of Laboratory Examination Phone: 1-800-752-2774 EFORENSICS Fax: 214-271-8322 •'
IMoq) $iiKiellJ Tesllng GI'QVII 4/14/2015
Supplemental- FR15-0025-A CELLMARK FORENSICS NO: FRIS-0025
AGENCY CASE NO: 2014-0423-CRD N/A
ADD'L AGENCY NO: Name Sample Table% Trace Evidence FRIS-002S-OLOLl ldentifiler Pin NR - - 1"'- N i - ril Ill ~ - Q NR ... Q NR Q = ..... NR v 8 ~ 0 ... Do NR .... on oc ... NR .... ~ NR 1"'- ~ = .... ... .... NR on .., I,D Q .... rn [01] NR ~ ~ i - QO Q NR .... .., ... Q NR < ~ NR ~ ~ NR ... .... Cl ~ NR ~ NR oc .... ~ OD NR ~ _i 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 of Crime LoboraJory Directors/Laboratory Accndilalion Boarri- lnternalioPIDI 2 of ;-iLED FOR RECOHO No. 11 F0763-005-A ZO 15 AUG I 0 PM J: :.:~~!BOWIECO X
STATE OF TEXAS
vs.
------ 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 ! I IIII .::t·Lr·r, rno cr:c·'ORO IIIII ; ! L. ;,I , \,'1 I r\ '- 2ul5 AUG 17 AH 9: II Craig L. Henry - ;! : \_,c! •• -_-_. . : ~- ..,. j I '...1 f '. Gi3m l 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 2[! 15 AUG 17 AM 9: 11 No. IIF0763-005-A
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 5 1 h 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 -.: ;~r, c:o- R-- RVf:'.',:.·:· ../'(" -'}·1 • . ' .-.. •- J § I , ._ •··· ~- " .. STH JUDI~IA~rnf~~t PH J2: ! ........ § ..... 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. *34 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: 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
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
[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).
[4] Strickland defines a .. reasonable probability" as "a probability sufficient to undermine confidence in the outcome." I d. 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 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. Id. at 693-94 (citation omitted) (emphasis added).