Court of Crim~nal Appeals RECEIVED IN Clerk of Court-Abel Acosta COURT OF CRIMINAL APPEALS P.O. Box 12308 Capitol Station OCT 05 2015 Austin, TX 78711
Dear Honorable Clerk Acosta, Please find enclosed an Amendment to Writ of Mandamus in No.WR-29,870-03 in Cause Nos. 1282632-A & 1282633-A to be ~onsid~
ered by the Honorable Court of Criminal Appeals. Wherefore the trial court has transmitted Habeas record in both Cause Nos. with- out a full and fair hearing as Supreme Court decision to allow Relator to develop the record. I request at this time that you file this Amendment with the original Writ of Mandamus. Because the trial court has already transmitted my 11.07 Application, Exhibits, memorandums of law, etc, for this Courts ruling~~would you please present this to the court as inclusion with my Writ of Mandamus original. Thank you very much for your kind assistance in this matter. I have enclosed a S.A.S.E. for your convenience so that you can return a file/date stamped copy of this letter to me.
/IJ -J-c2()J5
Bobby Henry #1719613 Wayne Scott Unit 6999 Retrieve Rd. Angleton, TX 77515 In The Court Of Criminal Appeals Austin, Texas
Bobby John Henry TDCJ-ID #1719613 Relator No.WR-29.870-03
Vs. Harris County District Judge District Court 180th Judicial District Honorable Judge Hull In His Official Capacity Respondent
NO.WR-29.870-03 Cause Nos.l282632-A & 1282633-A 180th Judicial Court of Harris County, Texas
Amendment to Application For Writ of Mandamus In NO.WR-29.870-03 Cause Nos.l282632-A & 1282633-A To The Honorable Judge of said Court; Comes now, Bobby John Henry, Relator, pro se in the above styled and numbered cause(s) of action and files this Amendment- to Application for Writ of Mandamus in ''No.WR-29.870-03" Cause Nos.l282632-A & 1282633-A, pursuant to Article 11.07 section 3(C) of the Texas Code of Criminal Procedure (T.C.C.P.), and would • ·~
show the Court the following: Bobby John Henry, T.D.C.J.=ID #1719613, is an offender in- carcerated in the Texas Department of Criminal Justice and is appearing pro se, who can be located at the Wayne Scott Unit. Brazoria County, Texas 77515. Relator has exhausted his reme- dies and has no other adequate remedy at Law. The Act saught to be compelled is ministerial, not discre- t i on a r y i n nature . T . C :· C . P . ART . 11 . 0 7 ;S 3 (d) r e q u i res res p on-"' dent to resolve the issues set out in the order designating issues and then have the District Clerk submit the record on
(1 ) such application. ort November 8, 2012, The State of Texas, by.:and through its Assistant District Attorney for Harris County, requested that the 180th Judicial Court,~pursuant to Tex. Code Crim. Proc.Art.ll~07
Sec.3(d), designates the followirig issue which needs to be re- solved: 1) Whether the applicant was denied the effective Assistance ' of Counsel. The Assistant District Attorney for the State of Texas for Harris County. Sharon y. Chu. Texas Bar I.D.#24051950, proposed this recommendation to the said Court requesting that issues be designated on Cause Nos.l282632-A & 1282633-A. On November 9, 20ll, the Judicial Court Judge Marc Wesley; Brown, presiding, adopted said states recommendation and there- fore designated said issue, "signed the order on November 9, 20l2" to resolve issue in this court which needs to be resoved pursuant to 11.07 Sec.3(d). On July 13~2015, Judicial District Court 180, at the time th~t Relator filed his Mandamus in the Court of Criminal Appeals had neglected to perf6rm its ministerial duty of resoling said issues. On August 26, 2015, the Court of Criminal Appeals of Texas ordered the respondent, Judge of 180th District Court of Harris County, to respond with said court by filing a response with this Court by having the District Clerk submit the record on such Ha- beas Corpus Application. In the Alternative, the respondent may resolve the issues set out in the order designatirig issues and there·have the District Clerk submit the record on such Applica- tion. In either case, the respondents' answer shall be submitted within 30 days of the date of this order. This application for leave to file a Writ of Mandamus will be held in abeyance until respondent has submitted his response. Filed: August 26, 2015. The Honorable Judge Marc Wesley Brown, who presided over trial p~oceeds on November 9, 2012, issued an order signed by the same, to serve the purpose cif designating issues in order to further de- velope the record. Applicant has filed letters of inquiry and motions sent to the court between December 26, 2012 and May 05, 2014. (See Exhibit "A") of Relators original Application for Writ of Mandamus. And also since this Court has ordered trial Court
( 2) to submit a response. Asking the trial Court to host an "evi- dentiary Live hearing" to further develop the record. On August 26, 2015, the date in which this honorable Court issued its order under No.WR-29.870-03. The presiding Judge of District Judicial Court, 180th District, is not the trial Juge who presided over Relators trial proceeds, therefore can not rule on a paper Hearing, as this Habeas Judge at this time has so ruled in Cause No.l28263l-A, even without an affidavit from Attorney of Relator, and Acc~pting the States answer as Attorneys Affi- davit referring to the record. The record can not disclose Coun- sels erroneous advise of what Counsel said or did not say to Re- lator to cause Relator to give up his rights and plead guilty to (2) charges in which he did not commit. Relator has such need of a Live Plenary Evidentiary Hearing, to further develop the record as. to '~Prosecutorial Misconduct" of withholding exculpatory evidence from the Grand Jury of a ~~
statement inside a states file folder,from complaining witness "Luc Schlumberger", stating that "Relator did not enter• her home, only knocked on windows. No items were taken. No damages did to home." Counsel for Relator never disclosed such information to Relator until Relator was convicted and requested a copy of Re- lator file trial counsel had. Relator informed counsel that he - did not enter anybbdiesEhome!"
II Violation Of u.s. Supreme Court Decision. The United States Supreme Court decision requires that the trial court allow Relator to deveop the factual basis of his c: " claims. Townsend Vs. Sain, 372 u.s.293 (1963)(held: on there- cord in this case the District Court erred in denying a Writ of Habeas Corpus without a plenary evidentiary hearing Pp.372 u.s. 295-322): see alsp Blackledge Vs .. Allison, 97 s.ct.l621, 1633 (1977) ("But Allison is entitled to careful consideration and plenary processing of (his claim.)including full opportunity for presentation of relevant facts") The trial court is not free to ignore Supreme Court deci- sions. Highwarden~Vs. State. 846 s.w. 2d 479, 481 (Tex. App. Houston (14 Dist.)(l993).
(3) Therefore, the trial court is required by Supreme Court de- cision to allow Relator to de~elop the facts from every source that has personal knowledge of factual allegations within his Ha- beas Application. See Brown Vs. Johnson, 224 f.3d 461, 467 (5th Cir 2000). It will be impossible for a fair and full hearing in this case to be totally dependant upon a paper hearing by Affidavits. TRial Counsel can not be expected to admit his own ineffectiveness. Alston Vs. Garrison, 720 7.2d 812, 816 (5th Cir 1983). It will therefore,require the extensive knowledge and skills of another attorney to test the credibility of his/her answers in a crucial cross-examination. With this in mind, the Federal Courts have consistently ruled a Judge tht did not conduct the trial is "disqualified" to judge the credibility of affidavits presented in a Habeas proceedings by the trial counsel; D.A. 's or witnesses, etc ...
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Court of Crim~nal Appeals RECEIVED IN Clerk of Court-Abel Acosta COURT OF CRIMINAL APPEALS P.O. Box 12308 Capitol Station OCT 05 2015 Austin, TX 78711
Dear Honorable Clerk Acosta, Please find enclosed an Amendment to Writ of Mandamus in No.WR-29,870-03 in Cause Nos. 1282632-A & 1282633-A to be ~onsid~
ered by the Honorable Court of Criminal Appeals. Wherefore the trial court has transmitted Habeas record in both Cause Nos. with- out a full and fair hearing as Supreme Court decision to allow Relator to develop the record. I request at this time that you file this Amendment with the original Writ of Mandamus. Because the trial court has already transmitted my 11.07 Application, Exhibits, memorandums of law, etc, for this Courts ruling~~would you please present this to the court as inclusion with my Writ of Mandamus original. Thank you very much for your kind assistance in this matter. I have enclosed a S.A.S.E. for your convenience so that you can return a file/date stamped copy of this letter to me.
/IJ -J-c2()J5
Bobby Henry #1719613 Wayne Scott Unit 6999 Retrieve Rd. Angleton, TX 77515 In The Court Of Criminal Appeals Austin, Texas
Bobby John Henry TDCJ-ID #1719613 Relator No.WR-29.870-03
Vs. Harris County District Judge District Court 180th Judicial District Honorable Judge Hull In His Official Capacity Respondent
NO.WR-29.870-03 Cause Nos.l282632-A & 1282633-A 180th Judicial Court of Harris County, Texas
Amendment to Application For Writ of Mandamus In NO.WR-29.870-03 Cause Nos.l282632-A & 1282633-A To The Honorable Judge of said Court; Comes now, Bobby John Henry, Relator, pro se in the above styled and numbered cause(s) of action and files this Amendment- to Application for Writ of Mandamus in ''No.WR-29.870-03" Cause Nos.l282632-A & 1282633-A, pursuant to Article 11.07 section 3(C) of the Texas Code of Criminal Procedure (T.C.C.P.), and would • ·~
show the Court the following: Bobby John Henry, T.D.C.J.=ID #1719613, is an offender in- carcerated in the Texas Department of Criminal Justice and is appearing pro se, who can be located at the Wayne Scott Unit. Brazoria County, Texas 77515. Relator has exhausted his reme- dies and has no other adequate remedy at Law. The Act saught to be compelled is ministerial, not discre- t i on a r y i n nature . T . C :· C . P . ART . 11 . 0 7 ;S 3 (d) r e q u i res res p on-"' dent to resolve the issues set out in the order designating issues and then have the District Clerk submit the record on
(1 ) such application. ort November 8, 2012, The State of Texas, by.:and through its Assistant District Attorney for Harris County, requested that the 180th Judicial Court,~pursuant to Tex. Code Crim. Proc.Art.ll~07
Sec.3(d), designates the followirig issue which needs to be re- solved: 1) Whether the applicant was denied the effective Assistance ' of Counsel. The Assistant District Attorney for the State of Texas for Harris County. Sharon y. Chu. Texas Bar I.D.#24051950, proposed this recommendation to the said Court requesting that issues be designated on Cause Nos.l282632-A & 1282633-A. On November 9, 20ll, the Judicial Court Judge Marc Wesley; Brown, presiding, adopted said states recommendation and there- fore designated said issue, "signed the order on November 9, 20l2" to resolve issue in this court which needs to be resoved pursuant to 11.07 Sec.3(d). On July 13~2015, Judicial District Court 180, at the time th~t Relator filed his Mandamus in the Court of Criminal Appeals had neglected to perf6rm its ministerial duty of resoling said issues. On August 26, 2015, the Court of Criminal Appeals of Texas ordered the respondent, Judge of 180th District Court of Harris County, to respond with said court by filing a response with this Court by having the District Clerk submit the record on such Ha- beas Corpus Application. In the Alternative, the respondent may resolve the issues set out in the order designatirig issues and there·have the District Clerk submit the record on such Applica- tion. In either case, the respondents' answer shall be submitted within 30 days of the date of this order. This application for leave to file a Writ of Mandamus will be held in abeyance until respondent has submitted his response. Filed: August 26, 2015. The Honorable Judge Marc Wesley Brown, who presided over trial p~oceeds on November 9, 2012, issued an order signed by the same, to serve the purpose cif designating issues in order to further de- velope the record. Applicant has filed letters of inquiry and motions sent to the court between December 26, 2012 and May 05, 2014. (See Exhibit "A") of Relators original Application for Writ of Mandamus. And also since this Court has ordered trial Court
( 2) to submit a response. Asking the trial Court to host an "evi- dentiary Live hearing" to further develop the record. On August 26, 2015, the date in which this honorable Court issued its order under No.WR-29.870-03. The presiding Judge of District Judicial Court, 180th District, is not the trial Juge who presided over Relators trial proceeds, therefore can not rule on a paper Hearing, as this Habeas Judge at this time has so ruled in Cause No.l28263l-A, even without an affidavit from Attorney of Relator, and Acc~pting the States answer as Attorneys Affi- davit referring to the record. The record can not disclose Coun- sels erroneous advise of what Counsel said or did not say to Re- lator to cause Relator to give up his rights and plead guilty to (2) charges in which he did not commit. Relator has such need of a Live Plenary Evidentiary Hearing, to further develop the record as. to '~Prosecutorial Misconduct" of withholding exculpatory evidence from the Grand Jury of a ~~
statement inside a states file folder,from complaining witness "Luc Schlumberger", stating that "Relator did not enter• her home, only knocked on windows. No items were taken. No damages did to home." Counsel for Relator never disclosed such information to Relator until Relator was convicted and requested a copy of Re- lator file trial counsel had. Relator informed counsel that he - did not enter anybbdiesEhome!"
II Violation Of u.s. Supreme Court Decision. The United States Supreme Court decision requires that the trial court allow Relator to deveop the factual basis of his c: " claims. Townsend Vs. Sain, 372 u.s.293 (1963)(held: on there- cord in this case the District Court erred in denying a Writ of Habeas Corpus without a plenary evidentiary hearing Pp.372 u.s. 295-322): see alsp Blackledge Vs .. Allison, 97 s.ct.l621, 1633 (1977) ("But Allison is entitled to careful consideration and plenary processing of (his claim.)including full opportunity for presentation of relevant facts") The trial court is not free to ignore Supreme Court deci- sions. Highwarden~Vs. State. 846 s.w. 2d 479, 481 (Tex. App. Houston (14 Dist.)(l993).
(3) Therefore, the trial court is required by Supreme Court de- cision to allow Relator to de~elop the facts from every source that has personal knowledge of factual allegations within his Ha- beas Application. See Brown Vs. Johnson, 224 f.3d 461, 467 (5th Cir 2000). It will be impossible for a fair and full hearing in this case to be totally dependant upon a paper hearing by Affidavits. TRial Counsel can not be expected to admit his own ineffectiveness. Alston Vs. Garrison, 720 7.2d 812, 816 (5th Cir 1983). It will therefore,require the extensive knowledge and skills of another attorney to test the credibility of his/her answers in a crucial cross-examination. With this in mind, the Federal Courts have consistently ruled a Judge tht did not conduct the trial is "disqualified" to judge the credibility of affidavits presented in a Habeas proceedings by the trial counsel; D.A. 's or witnesses, etc ... This is true because only the trial Judge has first hand knowledge to compare the facts th4fare in said affidavit(s) to what actually took place at trial. Perille Vs. Johnson 79 7.3d 441, 446 (5th Cir 1986). State Court Habeas findings of fact are presumed correct "only" when there has been a full and fair hearing. 28 u.s.c. Sec.2254(d).Armstead Vs. Scott, 61 7.3d 333, 347, (5th Cir 1995) Additionally, if these presently unresolved issues are not resolved by the trial Court during a Live Evidentiary Hearing, it will deny Relator a Fair and Full opportunity to resolve them. The Court of Criminal Appeals will grant Mandamus relief when a Relator shows "(1) that the act sought to be compelled is purely ministerial and "(2) that~there is no adequate remedy at law" Winters Vs. Presiding Judge of the Crim. Dist Court No.(3)three= ll8S.W.3d 773, 775.(Tex Crim. App 2003)Benson Vs. Dist. Clerk 331 S.W.3d 431. Additionally, "The relator must have a "Clear right to the relief sought" meaning that the merit of the relief sought are beyond dispute." "In RE Rodriguez"77 S.W.3d at 461. The require- ment of a clear legal right necessitates that the law plainly de- scribes the duty to be performed such that there is no room for the exercise of discretion. Wherefore, Premises Considered, Relator Pray that this.Motion ( 4) in all things be granted, thereby ordering the Trial Court to host a Live Plenary Evidentiary hearing in both Relators Cause Nos. 1282632-A &1282633-A,as required by Supreme Court decision when Relator seeks to develop factual basis of his claim,Brady Viola- tion Prosecutorial Misconduct allegations against the D.A.s ~nd
ineffective Assistant Counsel on trial counsel, if true will en- title Relator to relief. And order trial court issue a Bench Warrent for Relator so he can personallyattend this Hearing, and any other or additional relief he is justly entitled to. It is so prayed.
UNSWORN DECLARATION I, Bobby John Henry, TDCY-ID #1719613, presently incarcerated in the Wayne Scott Unit of the Texas Department of Criminal Justice in Brazoria County, Texas, verify and declare under penalty of perjury that the forgoing statements are true and correct. Executed on this the lst day of October, 2015
(3)exhibits included Bobby John Henry #1719613 (2)states motion to designate Wayne Scott Unit issues in Cause Nos~l282632-A 6999 Retrie~e Rd. & 1282633-A Angleton, Texas 77515 (J)statement from complaining witness Relator, pro se (states writ exhibit 'D"
(5) Certificate of Services
I hereby certify that a true and correct copy of the above Application for Writ of Manda~us Amendment was served on lBOth Judicial Districe Judge, presiding, by placing a copy in the u.s. Mail addressed to: Chris Daniel,"District Clerk of Court. 1201 Franklin St. Houston, Texas, 77002 on this the lst day of Octo- ber, 2015.
Relator
(6 ) . ··-~ "-' __. .;.._ .... ... ,. ,.• ·'.: ;. .... ::.....• I . • ~: . ' ~ STATE'S Wl\t EXHIBIT Miscellaneous ;----¥~- t> il II' ~A. A)6fe_- ,,_,s;bF!jdk.~--- ------~lr---------------------------~~~~.~2~~~~~2~-----
IIt<.( . Sci.._/" .._,_ b .-
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----------4--------·-~---------------------. ;i i . . __. ---···---··----{-----·~------------····--·· • ~ I \ ! ••----·----- I I --' - - - - - - - - - - - - - - - - - - - · · - - - - - - - - 4 - - - · ---· -·-·-· .. --·--•--·-···•---··· ••• II Cause No. 1282632-A
EX PARTE· § IN THE 180TJ-I DISTRICTCOURT ·
.§ OF
BOBBY HENRY; § HARRIS COl:JNTY;TEXAS Applicant
MOTION REQUESTING DESIGNATION OF ISSUES
The State of Texas, by and through its Assistant District Attorney for Harris County, ..,..,--·-·--·· . ·~·--··- requests that this Court, pursuant to TEX; CODE CRIM. PROC. art. 11.07, §3(d), designate the
following issue which needs to be resolved: . . .
1. Whether the applicant was denied the effective assistance of counsel. ·
Service has been accomplished by mailing a true and correct copy of the foregoing
instrument to the following address: .
··. Mr. Bobby Henry TDCJ# 1719613 Wayne Scott Unit 6999 Retrieve Angleton, Texas 77 515
SIGNED this 8th day ofNovember, 2012.
Respectfully submitted,
SharonY. Chu Assistant District Attorney Harris County, Texas · 1201 Franklin, Suite 600 Houston,Texas 77002 • (713) 755~6657 (713) 755-52~0 {fax) ·. Texas Barl.D, #24051950 ·.· · Cause No. 1282632-;A
. EX PARTE. § .. IN THE 180TH DISTRICT COURT
§ OF
·BOBBY HENRY, § HARRIS COUNTY, TEXAS Applicant
• STATE'S PROPOSEDORDERDESIGNATING ISSUES
Havingreviewed the applicant's application for writ of habeascorpus, the Courtfinds
that the following issue needs to be resolvedjn the 1nstailt proceeding:.·
· 1. ~ether the applicant was denied the effective assistance ofcounseL
Therefore; pursuant to Article. 11.07, · §3(d), this. Court will res~lve the above~cited issue .. .. and then enter findings of fact .. . . . . . . .
The Cl~rkofthe Court is·ORDERED.NOTto trans~it at this time any documentsinthe . . .
above-styled case to the Court of Criminal Appeals until· further order by this Court.
By the foll()wing signature, the Court adopts the State's Pr()posed Order Designating
Issues . .
SIGNED on the-.-. day of·.,.,.... -----,-------'---"., 20_,
PRESIDING JUDGE Cause Nq. 1282632-A
EX PARTE § INTHE I 80TH DISTRICT COURT
§ OF
BOBBY HENRY, § HARRIS COUNTY, TEXAS Applicant
Service has been accomplished by sending a copy of this instrument to the following address:
Mr. BOBBYHENRY TDCJ#l719613 "'N ayne Scott Unit 6999 Retrieve Angleton, Texas 77 515
SIGNED this 8th day ofNovember, 2012.
Respedfillly submitted,
~h~ Yo~~ Sharon Y Chu · Assistant District Attorney · Harris Co\mty, Texas 1201 Franklin, Suite 600 Houston;Texas 77002 .· (713) 755-6657. (713)755-5240 fax . · Texas.Bar ID 24051950 '
2 r-J· . . "'"\....
Cause No. 1282633~A.·
EX PARTE § IN THE 180THDISTRICT COURT
§ OF
BOBBYHENRY, . HARRIS COUNTY, TExAS Applicant ·
. . . . .
MOTION REQUESTING DESIGNATION OF ISSUES_
The Stat~ of Texas, by and through its Assistant District A~ofl1ey .for Hams County,
requests that this Court, pursuant to ·rEx. CODE CRIM. PRoc. art. 11:07, §3(d)? designate the
following issue which needs to be resolved:
1. Whether' the applicant was denied the effective aSsistance ofcol.msel. . .
Service >has beeri accomplished by mailing a true arid correct copy of the foregoing
instrument to the following address:
Mr. Bobby Henry TDCJ# 1719613 Wayne Scott Unit 6999 Retrieve· •· Angleton, Texas 77~15
·.SIGNED this 8th dayofNovembet, 2012.
RespeCtfully submitted, ·
Sharon Y. Chu · ·Assi~tantDistrictAttomey . . Harris Coilllty;·Texas .· ·· 1201 Franklin; Suite 600.. Houston, Texas 77002 · . (713)755-6657 (713)755.,5240.(fax) ... Texas Bar LD. #24051956 · ·· .· ·
.. -. •' ~. .•.
- Cause No. 1282633-A . " .. EXPARTE ·.. § .· ·IN THE 180THDISTRICT COURT
§ OF . . ..
BO:I3BY HENRY, § .·HARRIS COUNTY, TEXAS Applicant
STATE'S PROPOSED ORDER DESIGNATING ISSUES
Having revie~ed the applicant's appli~ation for writ of"habeas c;orp~s,th6 Court finds that the following issue needs to be resolved· in the instant proceeding: .
1. Whether the_ applicant was denied the effective assistance of counseL . . ' . .. . . .
Theref~;e, pursuant to Article 11.07, §3(d), this CoUrt will resol~e the above-cited issue
and then enter findings of fact.
The Clerk of the Court is ORI)ERED NOT to transmitat this time any documents in the
above-styled case to the Court of Criminal Appeals until further order by this Court.
By the following signature, the Court adopts the State's_Proposed Order Designating
.. Issues .. _·
SIGNED on the __._ day of _ _____,c--'' 20_··.
PRESIDING JUDGE Cause No. 1282633-A
EX PARTE TN:tHE.180TH DISTRICTCOURT
§ OF . ~ . .· .
BOBBY HENRY, § HARRIS COUNTY, TEXAS· Applicant_·
. Service has been accomplished by sending a copy of this instrument to the fo-llowing address: . . . Mr. BOBBY HENRY TDCJ # 1719613 \Vayne Scott. Unit 6999 Retrieve Angleton, Texas 77515
SIGNED thls 8th dayofNovember, 2012. •
Respectfully submitted, .
SiA,wm~ • ·t t.AA~ n ·.....
Sharon Y. Chu . . . . ·. Assistant District Attorney ._· •-.. Hams County, Texas 1201 Franklin, Suite 600 Houston, Texas 77002 (713) 755~6657 . {713) 755-5240 fax Texas BariD 2405.1950 . •1:.: •·._.,