Motion to Remand to Trial Court

– 1 IN THE COURT OF CRIMINAL APPEALS FOR THE STATE OF TEXAS AUSTIN, TEXAS
EX PARTE § § § 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 woul d 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 M RIs at issue in this case. 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 CLERKMotion to Remand to Trial Court

– 2 II. For the first time ever in the life of this case, the Stat e has proffered evidence from specialist s actually qualified to interpret the MRIs. The State submitted a joint affidavit fr om three p ediatric 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 th e MRIs of
Di llon’s brain conducted in 2009.
III. The S tate’s pediatric neurologists h ave 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. C ONST

. amend. VI; Cra wford 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

ev idence discrediting the State’s doctors’ opinion s . Finally, Dr. Scheller,Motion to Remand to Trial Court

– 3 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 o pportunity to develop the bias of these witnesses , which may be used to potentially downplay any fault the witnesses may have in c ausing Dillon’s injuries while he was i n the care of Cook Children’s Hospital.
F OR T HE A BOVE R EASONS , 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.comMotion to Remand to Trial Court

– 4 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 Selle rs Frank Sellers