WR-84,299-01
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 12/21/2015 10:33:35 AM
Accepted 12/21/2015 10:58:35 AM
ABEL ACOSTA
IN THE COURT OF CRIMINAL APPEALS CLERK
FOR THE STATE OF TEXAS
AUSTIN, TEXAS RECEIVED
COURT OF CRIMINAL APPEALS
12/21/2015
EX PARTE § ABEL ACOSTA, CLERK
§
§ NO. WR-84,299-01
§
RICHARD FREDRICK LOWREY §
MOTION TO REMAND TO TRIAL COURT
TO THE HONORABLE COURT OF CRIMINAL APPEALS:
NOW COMES RICHARD FREDRICK LOWREY, Applicant, and
files this Motion to Remand to Trial Court and would show this Court the
following:
I.
This application for writ of habeas corpus was recently forwarded to
this Court. The claims raised in the application concern the ineffective
assistance of Applicant’s trial attorney, the State’s failure to disclose
evidence favorable and material to Mr. Lowrey’s innocence, and Mr.
Lowrey’s actual innocence. One of the claims concerns the State’s recent
presentation of new expert witness affidavits to analyze the MRIs at issue in
this case.
Motion to Remand to Trial Court – 1
II.
For the first time ever in the life of this case, the State has proffered
evidence from specialists actually qualified to interpret the MRIs. The State
submitted a joint affidavit from three pediatric neurologists: Drs.
McGlothlin, Perry, and Marks. The fact that the State is now offering the
affidavits of these doctors seems to suggest the State understands that the
two experts who testified at trial are not qualified to interpret the MRIs of
Dillon’s brain conducted in 2009.
III.
The State’s pediatric neurologists have never been subject to cross
examination. The State simply submitted an affidavit from the newly
obtained experts to refute Dr. Scheller’s testimony, given at the habeas
hearing, and Dr. Rotenberg, submitted just days after the hearing. Cross
examination of these doctors is particularly important for three reasons.
First, Applicant has a constitutional right to confront the witnesses against
him. U.S. CONST. amend. VI; Crawford v. Washington, 541 U.S. 36, 51-52
(2004). Second, the habeas court’s findings attempted to discredit
Applicant’s doctors based on the cross examination conducted at the habeas
hearing. Applicant should be afforded the same opportunity to provide
evidence discrediting the State’s doctors’ opinions. Finally, Dr. Scheller,
Motion to Remand to Trial Court – 2
who testified on Applicant’s behalf, posited that Dillon’s injuries occurred
while in the care of the State’s doctors and Cook Children’s Hospital.
Applicant should be afforded the opportunity to develop the bias of these
witnesses, which may be used to potentially downplay any fault the
witnesses may have in causing Dillon’s injuries while he was in the care of
Cook Children’s Hospital.
FOR THE ABOVE REASONS, Applicant respectfully requests that this
case be remanded to the trial court.
Respectfully submitted,
Hurley, Guinn & Sellers
By: /s/ Frank Sellers
Frank Sellers
State Bar No. 24080305
Frank@hurleyguinn.com
Daniel W. Hurley
State Bar No. 10310200
dwh@hurleyguinn.com
1805 13th Street
Lubbock, Texas 79401
P: (806) 771-0700
F: (806) 763-8199
Law office of Allison Clayton
By: /s/ Allison Clayton
Allison Clayton
State Bar No. 24059587
Allison@AllisonClaytonLaw.com
Motion to Remand to Trial Court – 3
P.O. Box 64752
Lubbock, Texas 79464-4752
P: (806) 773-6889
F: (806) 688-4515
Certificate of Service
I certify that on December 21, 2015, a copy of the foregoing was
served upon the Tom Green County District Attorney by email to
Allison.Palmer@co.tom-green.tx.us.
/s/ Frank Sellers
Frank Sellers
Motion to Remand to Trial Court – 4