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 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. 

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

CLERK

 RECEIVED COURT OF CRIMINAL APPEALS 12/21/2015 ABEL ACOSTA, CLERK 
Motion to Remand to Trial Court – 2

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 – 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 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 – 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 Sellers

Frank Sellers