Rose, Jesse Ray

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JESSIE RAY RosE 1 § Kerr county,Texa

§
AFFIDAVIT IN SUPPORT OF APPLICATION FOR WRIT OF HABEAS CORPUS 11.07

State of Texas
Conuty,Coryell

My Name is Jessie Ray Rose,I am of sound mind over the age of 18 years,and
do state under penalty of perjury the following is true and correct,and that
I am making this affidavit in support of my writ ll.O7}and am willing to test-

ify to the following in a live hearing:

I was charged with the offense of aggravated robbery,December 2,2011 the Court
appointed Mr.Richard L. Ellison to represent me in Cause No.B ll690.

I was convicted and sentenced to 80 years imprisonment after Mr.Ellison refu-
sed to do anything to test the merits of the State's case in his representa-
tion of me,as my trial record reflects.

I did not discover that Mr.Ellison was not certified by the Board of Legal
Specialization in criminal Law trials at the time the State appointed him to
represent me,until he filed an affidavit with the Court to answer my original
application in which he stated in his affidavit that he was not Certified by
Board of Legal Specialization in Criminal Trials until December l4,20l4/two
years after he represented me in my robbery trial.

Prior to my trial I told Mr.Ellison that I wanted to take my case to trial
because I was not guilty as charged.He argued with me that the State had an
air tight case against me because my wallet and cell phone were found in'the
car involved in the robbery,and that the mask used in the robbery had my DNA
on it but he also knew that there were other peoples DNA on the mask as well
two or three.

I explained to Mr.Ellison that I had gotten a ride to Fredicksburg with Bobby
and once we got there he dropped me off and I left my cell phone and wallet in
his car,and that Mr.Gary Whitehead-could verify this as well as the fact when
I was waiting on Bobby to come back for me they did not come back and I ended

up walking ;fromt; Fredricksburg on the night of the alleged robbery which

(l) \

happened in Kerrville about ll or 12 a.m. I began walking back to Kerrville
about that time I left Gary and a friend of his. `

I also told counsel that my mother also knew that I was in Fredricksburg at
the time the alleged robbery took place.

He did not want to hire an investigator to verify that I was in Fredricks-
burg on the night of the robbery.This caused a conflict between him and I due
to the fact that was the only way I could prove my innocence.

Mr.Ellison I asked him to have an independent DNA test conducted on the mask
to find out who the other contributors were because I told him it was not
possible my DNA was on the mask.He knew that there were other peoples DNA on
the mask alleged to have been used in the robbery.At trial there was testimony
that the mask was subject to cross-contamination due to_the fact it was placed
in the same bag with my cell phone and wallet which was recovered from Bobby's
car.

Mr.Ellison refused to have the independent test conducted due to the fact he
told me that without access to the law enforcement DNA data bank,the other DNA
would not be able to be identified.

The DNA expert at trial testified that the way the DNA is identified is that
the name of the person believed to be a contributor must be submitted along
with his/her buccal swab.Counsel knew the names of two suspectsdHEapolice had
in custody in connection with the offense and also the names of suspects the
complainant believed robbed him.So he could have submitted their names along
with a buccal swab.See Vol.ll:l62 at 22-25

The DNA Expert called by the state testified that my DNA was not dominant and
based on the results there are possibly two or three people.See Vol.ll:l7l at
4-25.:' l

Counsel's failure to investigate and present to the jury other peoples DNA

was not based on an informed choice,and that deprived applicant of favorable
evidence,as well as counsel's failure to hire an investigator to locate and
interview alibi witness that knew I was in Fredricksburg during the time of
the alleged offense occured in Kerrville.,and also to object to the recorded
jail conversation between my mother and brother which did not reflect that a
robbery took place,this was hearsay evidence,and it obtained extraneous offesw
nse information concerning an act of misconduct which was inadmissible under

Rules-403,and~404(b).

(2)

The record of my trial reflects that Mr.Ellison lacked the experience and sksI

ill of a criminal defense attorneyzand he lacked knowledge of the rules of
evidence. '

Inmate Decleration

I ' SE, §2 E, declare under the penalty of perjury that the state-

ments and allegations made in this affidavit are true and correct.

Executed on this 23rd day of September 2015

C)M /@,¢/z /_@ aaa

Signatuf§j

submitted by: SAM\J\W /€CK

Jesse Ray Rose #1802171
Hughes Unit,Rt.Z Box 4400

Gatesville,Texas 76597

(3)

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'WRIT NO._83,344 - Ol

IN THE /

TEXAS COURT OF CRIMINAL APPEALS

EX PARTE/
JESSE RAY ROSE

\

ON POST - CONVICTION wRIT OF HABEAS CORPUS
from the 198 th Judicial District Court/
"KERR coUNTY}TExAs

CAUSE NO. B - 11690

1 " KE
. /-/ v n . n l ~`
Applicant's written-objection to Trial'Court\s findings of Fact

and Conclusiods of law suggestion he be denied relief.

Respectfu

'esse Ray ose #1802171.
Hughes Unit,Rt.Z Box 4400
Gatesville}Texas 76597

TABLE OF CONTENTS

CONFINEMENT AND RESTRAINT
statement of facts
GROUND FOR RELIEF ONE:

DEFENSE coUNssL, Mr. richard L° Ellison, sam
06580700, RENDERED 1NEFFECTIVE ASSisTANcE DuRTING
TRIAL

CONCLUSION
PRAYER
CERTIFICATE OF COMPLIANCE n 4 LAST

INDEX OF AUTHORITIES

Ex PARTE MENCHACA, 854 s.w.za 126
EX PARTE MORROW; 952 S»W»Zd 530

EX PARTE SCCTT' 581 S¢W»Zd 181
HERNANDEZ V~ STATE, 726 S¢W»Zd 53

HILL V= LOCKHART¢ 474 UQS» 52

JAcKsoN v. sTATE, 766 s.w.zd 504
MCFARLAND Vo STATE: 928 S¢W¢Zd 482
sTRICRLAND v. wAsHINGToN, 466 u.s. 663

sTATE`sTATUTES:
Tex.Code Crim.Proc.Ann. Art. 11.07

STATE BAR RULERS

U.S. Const. Amendment Six

ii

w
§

31

¢EBU'IG)U¢£>GJW

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7

No.Bll690-l _
Court of Criminal Appeals Number WR-83,344-Ol

Ex PARTE -§ In the District court of
JESSE RAY RosE § 198th Judicial District
§ KERR coUNTY,TExAs
Written Objections to conclusions of Law,Recommendation and order

of District Court to deny applicant relief.

Applicant Jesse Ray Rose ,files this written objection to Trial
Courts Findings of Fact and Cbnclusions pf law due to the fact,
There are still controverted unresolved facts concerning counsels
representation which are material to his ineffective assistance
of Counsel claim which was not addressed by the court,and Trial
Counsel's Affidavit fails to address applicant's allegation that:
(1)Counsel failed to Secure favorable evidence;and

(Z)Failure to introduce evidence before the jury that applicant's
fingerprints were not recovered from the vehicle or from the

weapon that was used.

APPLICANT WAS DENIED A FULL AND FAIR HEARING
(a)Trial Court's decision is not entitled to deference,it failed
to provide applicant with a full and fair hearing,and it's adju-
dication of applicant's ineffective assistance of counsel claim
resulted in~a decision that was based on an unreasonable deter-
mination of the facts in light of the evidence presented in it's

proceeding.And(b)Trial Court's rejection of applicant's ineffec-

tive assistance of counsel claim was based on trial counsel's

(l)

false and misleading affidavit...and an unreasonable application

of clearly established law...Strickland V. Washington(Supra).

Applicant will now show the following:

I.
Applicant filed an ineffective assistance of counsel claim in
his writ of habeas corpus application alleging counsel was ine

effective for failing to secure favorable evideng§(buccal swabs

from other suspects for Dna comparison),this allegation was not
addressed by the court it was restructured by the State(and adop-
ted by the court)to allege counsel failed to investigate uniden-
tified DNA sample found on mask used during the commission of the
offense.Counsel was ordered to make an affidavit to resolve the
issue.In doing so counsel filed an affidavit and letters attached
as exhibits.

TRIAL COUNSEL'S AFFIDAVIT
Attorney's Affidavit page(5)at#30 he stated:He reviewed the DPS
Lab reports...they reveal a mixture)of DNA including applicants
on the hollowing mask..napplicant wanted him to obtain funds to
have an independent lab attempt to identify the other DNA,but th-

at he told applicant"without accesss to the governments DNA data

base they would not be able to do soV....

page(6)at 32 counsel states:he did not believe that having an in-
dependant lab without access to law enforcement databases would

,have:helped the defense.If he had believed that testing by an in-
dependent lab would have helped defend the case,he would have fi+

led an AKE Motion for the funds.He didn't think So,and did not

ask for the funds.

(2)

Trial Counsel's letter attached to affidavit
concerning DNA testing.
In a letter dated April l3j2012 attached to affidavit counsel in-
dicated he was going to(l)Subpoena DPS lab records on the hollow-
een mask and see if it showed other peoples DNA and (2)ask the
court for authorization to have it tested by independent lab.

AT A PRE-TRIAL HEARING COURT HAD GAVE AUTHORIZATION
TO HAVE INDEPENDENT LAB CONDUCT DNA TESTING.

March of 2012 counsel asked for permission and the funds to take
coton swabs from persons the victim alleged robbed him,and the
two other suspects police had,to see if the DNA matched the mixed
DNA on the mask request was granted,counsel failed to do so.

EXPERT TESTIMONY AT TRIAL

A known sharpe 6frthe DNA must be submitted to the lab to be com-

pared to an unknown source of the DNA.Reporters Record(RR)Vol.ll:
162 at 22-25.t.expert further testified on direct exam that:
Applicant was not the only person to wear that mask used during
the robbery.See 169 at 1-4 Id.And that based on the results there
are 2 possibly 3 people that there was no dominant profile.See
171 at 4-25 Id.

Trial Counsel's affidavit indicates applicant requested him to
obtain funds to have an independent lab identify the other DNA
and counsel told him without access to the Covernments DNA data
base they would not be able to do so...page (5) at#30

’Trial counsel knew that the mask was placed in the same bag with

(3)

applicant's cell phone and wallet/at trial expert testified that
if that occurred there was a possibility of cross contamination.
See RR ll:l76 at 1-5.

In order to have the DNA on the mask tested to discover who wore
the mask counsel knew that the State submitted two names applie'
cants and Jeremy Butler.See RR 11:163 at l-4.(prior to trial cou-
nsel knew this due to the fact he fact he had access to the lab
analysis report)...

DISCUSSION
ANALYSIS OF COUNSEL'S AFFIDAVIT HTREGARDS TO HIS FAILURE TO HAVE

THE MASK TESTED TO DISCOVER WHO ELSE WORE THE MASK.

[ ISSUE ]
Whether or not counsel made an informed choice not to have the ma-
sk tested for the other suspects DNA,including the 2 people pole
ice had in custody?
Counsel's affidavit reflects that applicant requested him to have
the mask tested for other peoples DNA knowing that his DNA was
not the only DNA on the mask.Counsel's affidavit reflects that
counsel's decision not to file an~ AKE MOTION to have the mask

tested was counsel's belief that"without access to the Government

data base they would not be able to do soY...inorder to get apple
icant's DNA counsel knew that his name had been submitted to the
DPS crime lab for DNA analysis/and that resulted in applicant be-
ing identified as one of the people that wore the mask/counsel \
knew trhat there was a mixture of DNA,and had counsel contacted

a lab to discover how the unkown DNA could be identified he would

(4)

have discovered what he already knew "that names of a possible
known source had to be submitted inorder to discover whether or
not it was that persons DNA on the mask and that the lab did not

need access to the governments DNA database/a simple call to an

independent lab would have established this.
According to counselis affidavit applicant requested him to sec<
ure the funds to have an independent lab conduct a DNA test to

discover who where the other contributors.Counsel failed to do so
and counsel's reason for not cdnducting an investigation to do so
was not based on an informeddeck§on which is clear from the affi-

davit,and the DNA experts testimony at trial which Trial Court

had the opportunity to hear the expert testify that.A known sou-

rce of DNA must be submitted to be compaired to an unknown source

oof the DNA.

CONCLUSION
It is clear from counsel's affidavit that his failure to obtain
an AKE MOTION for the funds to have the mask tested for other
peoples DNA knowing there was a mixture,was not based on an info+
rmed choice,and that deprived applicant of favorable evidence
for his defense,any of the other known suspects,and the 2 people
police had in custody could have been identified as contributors
of the DNA and presented to the jury,trial court was aware of
this when it entered it's findings`of fact.

ALIBI - WITNESS
COUNSEL HAS FILED A FALSE AND MISLEADING AFFIDAVIT IN AN ATTEMPT
TO REASON AWAY HIS FAILURE TO SUBPOENA NAMED PERSON'S WHO COULD

ESTABLISH APPLICANT"S ALIBI DEFENSE.

(5)

Applicant told counsel prior to trial that Mr.Gary Whitehead
could establish that he was in Fredricksburg,when the robbery
occured in Kerville,and requested counsel to go speak with him
and he would tell counsel that,applicant came to Fredricksburg
from Kerville,with Three other guys,and that they dropped him off
and that applicant had been drinking,and had left his cell phone
and wallet in the car.Applicant attempteddx)contact one of them
but could not get through,and that the three guys left applicant
in Fredricksburg,that applicant had waited around for them up
until 12:00 A.M.and that he decided to walk back to Kerrville
after they did not come back to pick him up.

Applicant contends that counsel has filed a false and misleading
affidavit for the following reasons: Applicant did not tell coun-
sel that his mother could be his alibi witness as he has indica-
ted in his affidavit.Applicant knows that his mother knew he was
in Fredricksburg when the robbery in Kerrville took place,but did
not want her as an alibi witness because she suffers from alzhei+'
mers disease.Counsel's affidavit reflects that applicant told him
that the State could not use his mother aginst him because she
suffers from alzhiemers.That's proof in itself applicant did not
want to use her as an alibi witness,and applicant did not request
counsel.to call his wife as a witness,she wasn't in Fredricksburg
but knew that he was there that night,becuase he called from

a phone Gary had and told her where he was.

Trial counsel has attempted to useta jail recording of his mother

talking to his brother about an incident that happened to him

(6)

on the night of the robbery to make it appear(as the state did at
trial)that the jail recording was proof of the robbery and appli-
cants involvement in it.
In an attempt to mislead the court Trial counsel states in his
affidavit:Applicant had no alibi witnesses who could account for
his whereabouts at the time of the offenserApplicant's mother
could not alibi for him...if she would have testified she would
have bee impeached by the state with the recording of the conver-
sation she had with one of his brothers in jail.In which he says
she stated:that Jesse(applicant)had gone with the co-defendants
they went"over there",the cops came immediately and Jessie had a
long night and had to walk back from Fredricksburg".Counsel fur-
ther adds,the only way she could have known this information
would be if applicant told her.So she was out as an alibi-witness
... RECORDED JAIL CONVERSATION
Jail recording:

Things are not going to good for the brothers.

What happened ? You know how Jeremy takes all

of those pills and makes money.Well Jake set

them up.Real bad.He wanted your brother to

ride with them and another guy named Bobbyand

they went over there and it was a set up deal

and the bottle contained little screws and the

cops came immediately and Jesse had a long ni-

ght and had to walk back from Fredricksburg.

Bobbyvmade it back and went to the bar and they
wrecked the vehicle.

Counsel truncateddd&ecall in his affidavit to exclude that there
was a deal not a robbery and any person of reason can tell that

lwhatever transpired it happened in Fredricksburg not in Kerrville

where the robbery occured and there is no mention of a robbery no

abtopneytaoting¥as an advocate for his client would concede that

the conversation was about a robbery or that the event being

(7)

spoken of took place in Kerrville when it's clear that appli-
cant had to walk back from Fredricksburg. j
Counsel's affidavit clearly shows that he was not acting as an
advocate on behalf of applicant,and that he wholeheartedly acc-
epted the State's version of events and like the State miscon-
strued the jail house recording to inculpate applicant.The
affidavit submitted by counsel is false and very misleading and
the court used it,to determine whether or not counsel had denied
applicant effective assistance of counsel by failure to secure
alibi witness.Counsel made no mention of the fact applicant re-
quested him to ca11 Mr.Gary Whitehead as an alibi-witness,and th-
at is what caused a conflict.between applicant and counsel.Which
resulted in counsel filing a motion to withdraw June 26,2012,sta+
ting that:Applicant has expressed dissatisfaction with attorney's
performance and wanted to have anotherone appointed.
And that attorney concurs that it's in the defendant's best intre
est to allow him to withdraw,and that the motion to withdraw was
not for delay but so that justice may be served...
Counsel's motion to withdraw is proof that counsel and applicant
had a conflict and applicant maintains it is because counsel fai-
led to do anything to prepare a defense,which is clear from coun-
sel's affidavit.

';':a»vFINDING oF FACT
l)Court found the affidavit to be credible in all aspects without
a live hearing or applicant being given an opportunity to respond

to counsel's affidavit,which applicant has shown is false and

(8)

has mislead the Court as applicant has shown herein concerning
the issue of his alibi witness and the misleading reasoning cou-
nsel attributed to the jail recording which does not show appli-
cant was involved in the robbery. k
2)Trial Court stated that counselfs affidavit is consistant with
the Court's memory,when in fact trial court had no memory or kn=:
owledge of applicant and counsel's conflict due to the fact coune
sel did not(a)make any attempt to secure his alibi witness that
initially caused a conflict between applicant and his attorney
which led to counsel filing the motion to withdraw,and Court did
nodbjtd&rintoaccount the experts testimony at trial that appli-
cant's DNA was not the only one on the mask that there were 2 or
3 contributors and that eventhough applicant's DNA was on the mas
sk it was not dominant,and that same DNA expert testified that

a known source of DNA must be submitted to the lab to be compared

to an unknown source of the DNA.And that counsel's affidavit show

counsel erroneously believed that an independent lab test was no

good to identify`the unkown DNA without access to the governments

DNA database;which is'why he aid not file the AKE MoTIoN)in light
of the fact applicant requested him to do so.However/the court
managed to find that counsel did not in any manner failsto invest

stigate the DNA sample found on the mask,the court did not take

-in consideration that there was more than applicant's DNA on the
ma§k.and that there was testimony that applicant's wallet and

cell phone was placed into the same bag with the mask.Which

'could cause cross-contamination as the expert testified‘attrial;'i'

Which was even more of a reason for counsel to test it.

` (9)

3)Applicant's allegation that counsel failed to introduce victims.
exculpatory statement that applicant was not the person that
robbed him,which was captured on a recording of his parole hearéi
ing,was not adequately addressed by the Court during it's fact
finding function,there was no recording reviewed by the Court
and the only thing Court had before it to make a factual deter-
mination concerning this allegation was trial counsel's affida-
vit,and nothing.more;there'were no exhibit attached to counsel's
affidavit to reflect the testimony victim gave at applicant's
parole hearing as the finding of fact document reflects.
INEFFECTIVE ASSISTANCE OF COUNSEL
The benchmark for judging any claim of ineffective assistance of
counsel must be whether counsel's conduct so undermined the prop-
er functioning of the adversarial process that the trial cannot
be relied on as having produced a just result. Butler V¢ State,+§
716 S.W.2d 48,54(Tex.Crim.App.1986)quoting Strickland,lO4 S.Ct;-
at 2064.A defendant seeking relief under Strickland must show
that counsel's performance was deficient and the defendant must
show that the deficient performance prejudiced the defenseQButler
4;716 S.W.2d at 54.
When clarifying the "prejudice"prong of this two part test,the

Strickland Court held:
The defendant must show that there is a reasonable
probability that,but for counsel's unprofessional
errors,the results of the proceedings would have
been different.A reasonable probability is a probab-
ility sufficient to undermine confidence in the out-
come.Ex Parte Guzmon,730 S.W.2d724,733(Tex.Crim.App.
1987)quoting Strickland,104 S.Ct. at 2068.

<10)"

It is evident taht a criminal defense lawyer must have a firm
command of the facts of the case as well as governing law before
he can render reasonably effective assistance of counsel.Ex Parte
Ybarra,629 S.W.2d 943,946(Tex.Crim.App.1982);Ex Parte Duffy,607 ~
S.W.2d 507,516(Tex.Crim.App.1980).A natural consequence of this
notion is that counsel has the responsibility to seek out and
interview potential witnesses.Ex Parte Duffy,607 S.W.2d at 517.It
may not be argued that a given course of conduct was within the
realm of trial strategy unless and until the trial attorney has
conducted the necessary legal and factual investigation which
will enable him to make an informed rational decision.607 S.W.2d-
at 526.Counsel has a duty to bring to bear such skill and knowle-
dge as will render the traial a"reliable adversarial testing pro-.
cessF466 U.S. at 688;104 S;Ct.at 2065,80 L.Ed.2d at 694.

In applicant's case he asserts that one instance of ineffective
assistance of counsel was the failure of counsel failed to secure
favorable evidence(buccal_swabs from other named suspects for DNA
comparison because applicant's wallet and cell phone were placed
in the same bag in contact.wfth the mask used in the robbery).

Which was restructured by the Court to allege counsel failed to

investigate the unidentified DNA Sample found on the mask.In
response to this allegation,Trial counsel filed an affidavit with
exhibits.[as page 2 of this document states],Counsel admitted in
his affidavit the reason he did not conduct an independent lab
analyisis because the unknown DNA could not be identified without
access to the Government's DNA database,this was his belief,which
is why he did not file an AKE Motion to request the funds to do
so.Counsel's affidavit also reflects counsel stating,If he belies
ved such testing by an independent lab would have helped the defe
ense he would have filed an AKE Motiondku'the funds.He did not
think so,and did not ask for the funds.

On page three(3) of this written objection reflects expert that
conducted the DNA test,testified A known source of the DNA must g

be submitted to the lab to be compared to an unknown source of

(ll)

Q§§.Counsel haditrial counsel made an informed choice by contact-
ing a DNA lab to disover how an unidentified / unknown source of
DNA evidence could be identified he would have discovered that(a)
the Governments DNA database was not necessary to identify the
unknown source but that(b)the suspects DNA or the DNA of the two
people police had in custody in connection with this offense,that
their DNA could have been submitted and it could have been deter-
mined whether or not they were the source of the DNA.Counsel knew
who the suspects were as well as the two people police had in cu-
stody in connection with.the offense =++- which applicant was
charged.

Trial counsel clearly did not make an informed choice as is indi-
cated by his affidavit,in light of the experts testimony at trial
which trial court had the opportunity to hear.Applicant was depr+
eved of favorable evidence (theidaujty)of the unknown sources of
lDNA due to counsel's erroneous belief,that the unknown DNA on the
mask used during the robbery could not be identified without acca
ess to the Governments DNA database.

Applicant alleges another instance of ineffective assistance of
`counsel due to counsel's failure to subpoena known alibi-witness
Mr.Gary Whitehead to prove he was in Fredricksburg as the record-
ed jail conversation between applicant's mother and his brother
shows.To cover for his failure to seek out and interview potent+a
ial alibi witnesses,counsel falsly alleged in his affidavit that

applicant wanted his mother and his wife to alibi for him.

(12)

In another allegation applicant has alleged that counsel failed
to introduce exculpatory information before the jury that the
victim testified at his parole hearing that applicant was not the
person who robbed him.Trial court relied on counsel's affidavit
and nothing more to resolve this issue.When the recording of the
parole hearing proceedings reflect victim stating for certain
that applicant was not the person who robbed him.The failure of
counsel to present this evidence before the jury,was that he obt-
ained copies of the parole board revocation proceedings,and list-
ened to them,and it was in his opinion that they were not helpful
and would not have assisted in the defense of this case.He ackn