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uétuber 02, 2015
~Eourt of Criminal Appeals
Elerk of Court - Abel Acosta P.U. Box 12308, Capitol Station Austin, TX 78711
Dear Honorable Blerk Acosta:
Please find enclosed an Amendment to writ of Mandamus in No. MR-BZ,530-01 in Cause No. 1131353-5 to be considered by the Honor- able Eourt of Briminal Appeals: wherefore, the trial court has transmitted the Habeas record in said Eause number without a Full and fair hearing as Supreme Court decisions allow Realtor to devel- op the record. `
I request at this time that you tile this Amendment with the original writ of Mandamus because the trial court has already trans- mitted my 11.07'Application;-exhibits, memorandum of law, etc For this Eourt's rulling. I need this Amendment to be included with my original writ of mandamus.'
Thank you very much For your kind assistance in this matter. I »have enclosed a B.A.S.E. For your convienence so that you can return a tile/date stamped copy of this letter to me.
I have also sent a copy to the District Elerk, _ngis\%§ni&l, Harris Bounty, Texas. thi ED" ‘ COU>"`*`§" : T"’““'"\!!\L APPEALS
Respectfully Requested, n ' G:? §§:TH 7£@“~ <, du¢\O,// . l lhomas E. McDonnel #’|`562227 A@@LAC@UU§§QYK
wayne Scott Unit 6999 Retrieve Rd. Angleton, TX 77515
Uctober 02, 2015 .
Chris Daniel _
Harris Eounty, District Bourt - Elerk / 1201 Franklin St.
Houston, TX 77002
/
RE: Amended writ of Mandamus to be served on Judicial District Eourt ZABth. " ‘
'Dear Mr. Daniel: \
Please find enclosed a copy of Realtors Amendment to his writ of Mandamus No. wR-83,530-01 and tile it with your office and present it upon the ZLBth Judicial District Court.
Thank you For your assistance.
Respectfully Requested,
Thomas E. McDonnel #1562227 wayne Scott Unit 6999_Retrieve Rd_
Hngleton, TX 77515
IN THE BUURT UF CRIMINAL APPEAES
AUSTIN,.TEXAS
THUMAS E. MCDDNNEL TDEJ-ID #1562227 Realtor, NU. wR-BB,EZD-01
V.
HARRIS EUUNTY DISTRICT JUDGE DISTRIET’EDURT ZABth JUDIEIAL DISTRIET HUNURABLE JUDEE KATHERINE'EABANIS IN HER UFFIEIAt EAPAEITY Respondant
ND. wR-B§,SZU-Dl -CAUSE ND; 1134353-5 ZABth JUDIEIAL CDURT UF HARRIB CUUNTV, TEXAS
AMENDMENT TU APPLlEATIUN FUR wRIT DF MANDAMUS IN wR-83,530-01 EAUSE NU:41131355-B
TD THE HDNURABLE.JUDEE UF SAID EDURTZ
EDMES NUw, Thomas E. McDonnel, Realtor.pro se, in the above styled and numbered cause of action and tiles this Amendment to App- lication for'writ of Mandamus in'wR¢BB,BSD-U1 Eause No. 1131353-5, pursuant to Article)11.07 §§(c) of the Texas Code of Criminal Pro- cedure (T.C.C.P.) and would show the Eourt the following:
I.
Thomas E. McDonnel5 TDEJ¢ID #1562227, is an offender incarcera- ted in the Texas Department`of Eriminal Justice, and is appearing pro se, who can be located at the wayne Scott Unit, Brazoria Eounty, Texas 77515. Realtor has exhausted his remedies and has no other ad-
equate remedies at law.
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l
The act sought is ministerial and not discretionary in nature. T.C.C.P. Art. 11.07 §Z(d) requires REspondant to "resolve" the issues set out in the order designating issues and then have the District Clerh submit the record on such Application.
Un September 7, 2010, the Btate of Texas, by and through its court Judge,'Joan Eampbell, pursuant to T.C,E.P; Artr 11.07 §B(d) de- signated the following issues needing to be resolvedr (1) whether the Applicant was denied effective assistance of counsel.
Un September 25, 2013, the State of Texa55 by and through its court Judge, pursuant to T.C;CLP. Art. 41407 §B(d) designated the following issues needing to be resolved on Applicant's amended 11.07: (2) Prosecutor misconduct by DA addressing the Jurors on Applicant's failure to testify.
Un July B, 2015, Judicial District Court ZLBth, at the time the Realtor filed his Mandamus in the Court of Eriminal Appeals had neglected to perform its ministerial duty of resolving the.issues.
Un August 26, 2015, the Eourt of Criminal Appeals of Texas, or- dered the Respondant, Judge Eabanis, of said Eourt §248th Judicial District Bourt) to respond to Realtors mandamus by filing a response with_this Eourt and to submit the record on such Habeas Corpus App- lication. ln the alternative, the Respondant.may resolve the issues set out in the order designating issues and then have the District Elerk submit the record on such application. In either case; the Respondant‘s answer shall_be submitted within 30 dayssof the date of this order. This writ of Mandamus will be held in abeyance until v
the Respondant has submitted her resonse; Filed August 26, 2015.
(2)
The Honorable Judge Joan Eampbell who presided over the trial proceedings; issued order which were signed by the same, to serve the purpose of designating issues on both, the original 11.07 and the amended 11.07, in order to further develop the record. Appli- cant has filed numerous letters of inquiry and motions sent to the court between January 12, 2012 and November 2014.
Dn August 26, 2015, the date in which this Honorable Eourt issued its order under wRFBE,EZD-D1, the presiding Judge of Judi- cial District Eourt 248th is not the trial Judge whom presided over Realtor's trial , This current Judge has so.ruled in Eause No. 1131353-5 by accepting the affidavit of Realtor's defense counsel and also by accepting the State's order submitted by the Assistant District Attorney, Jill Burdette IB #2#055492. The record cannot disclose counsel's erroneous reason for not investigating the case nor the fact that she did not, nor could not, call potential wit- nesses who could help Realtor‘s case.
Realtor has such need of a "tive Plenary Evidentiary Hearing" to further develop the-record as to "Prosecutor Misconduct" of addressing gesser Jurors personally and commenting on Realtor's failure to testify and trial courtls ineffectiveness of trial counsel by failing to investigate-the case and failing to call witnesses to help his cause.
II.
VIULATIUN`UF U.S. SUPREME CUURT DEEISIUNS
The United State's Supreme Eourt's decisions require that the
(3)
trial court allow Realtor to develop the factual basis of his claims. T0wN5END v. BAIN, 372 U.B. 293 (1963)(held: on the record in this case the District Bourt erred in denying a writ of Habeas Corpus without a "Plenary Evidentiary Hearing". 372 U.SL 295-322); see
also ELACKLEDGE v. ALLISUN, 97 S.Et. 1621, 1653 (1977)(Eut Allison
is entitled to careful considerations and Plenary processing of his claim). Including full opportunity for presentation of relevant facts.
The trial court is_not free to ignore Supreme Court decisions. HIEHwARDEN v. BTATE, 846 S.w.2d 479, 401 (TexApp Hou [1hth Dist1 1995). Therefore, the trial court is required by Supreme.Eourt decision to allow Realtor to develop the facts from every source that has per- sonal knowledge of factual allegations within his Habeas applica- tion. 5ee EROwN v. JUHNSDN; 524 F.3d 461, 467 (Eth Eir. 2000).
lt will be-impossible for a fair and full hearing in this case to be totally dependent upon a paper hearing by affidavits. Trial counsel cannot be expected to admit her own ineffectiveness. See ALSTUN v. GARRISUN, 720 E.2d 012, 016 (Eth cir. 1983); It will therefore, require the extensive knowledge and skills of another att- orney to test the credibility of his/her answers in a cruciall cross-examination.
with this in mind, Federal Courts have consistently ruled "a Judge that did not conduct the trial is 'DISQUALIFIED‘ to judge the credibility of affidavits in Habeas proceedings by the trial counsel, DA's or witnesses, etc.
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zrz,€@'@/
uétuber 02, 2015
~Eourt of Criminal Appeals
Elerk of Court - Abel Acosta P.U. Box 12308, Capitol Station Austin, TX 78711
Dear Honorable Blerk Acosta:
Please find enclosed an Amendment to writ of Mandamus in No. MR-BZ,530-01 in Cause No. 1131353-5 to be considered by the Honor- able Eourt of Briminal Appeals: wherefore, the trial court has transmitted the Habeas record in said Eause number without a Full and fair hearing as Supreme Court decisions allow Realtor to devel- op the record. `
I request at this time that you tile this Amendment with the original writ of Mandamus because the trial court has already trans- mitted my 11.07'Application;-exhibits, memorandum of law, etc For this Eourt's rulling. I need this Amendment to be included with my original writ of mandamus.'
Thank you very much For your kind assistance in this matter. I »have enclosed a B.A.S.E. For your convienence so that you can return a tile/date stamped copy of this letter to me.
I have also sent a copy to the District Elerk, _ngis\%§ni&l, Harris Bounty, Texas. thi ED" ‘ COU>"`*`§" : T"’““'"\!!\L APPEALS
Respectfully Requested, n ' G:? §§:TH 7£@“~ <, du¢\O,// . l lhomas E. McDonnel #’|`562227 A@@LAC@UU§§QYK
wayne Scott Unit 6999 Retrieve Rd. Angleton, TX 77515
Uctober 02, 2015 .
Chris Daniel _
Harris Eounty, District Bourt - Elerk / 1201 Franklin St.
Houston, TX 77002
/
RE: Amended writ of Mandamus to be served on Judicial District Eourt ZABth. " ‘
'Dear Mr. Daniel: \
Please find enclosed a copy of Realtors Amendment to his writ of Mandamus No. wR-83,530-01 and tile it with your office and present it upon the ZLBth Judicial District Court.
Thank you For your assistance.
Respectfully Requested,
Thomas E. McDonnel #1562227 wayne Scott Unit 6999_Retrieve Rd_
Hngleton, TX 77515
IN THE BUURT UF CRIMINAL APPEAES
AUSTIN,.TEXAS
THUMAS E. MCDDNNEL TDEJ-ID #1562227 Realtor, NU. wR-BB,EZD-01
V.
HARRIS EUUNTY DISTRICT JUDGE DISTRIET’EDURT ZABth JUDIEIAL DISTRIET HUNURABLE JUDEE KATHERINE'EABANIS IN HER UFFIEIAt EAPAEITY Respondant
ND. wR-B§,SZU-Dl -CAUSE ND; 1134353-5 ZABth JUDIEIAL CDURT UF HARRIB CUUNTV, TEXAS
AMENDMENT TU APPLlEATIUN FUR wRIT DF MANDAMUS IN wR-83,530-01 EAUSE NU:41131355-B
TD THE HDNURABLE.JUDEE UF SAID EDURTZ
EDMES NUw, Thomas E. McDonnel, Realtor.pro se, in the above styled and numbered cause of action and tiles this Amendment to App- lication for'writ of Mandamus in'wR¢BB,BSD-U1 Eause No. 1131353-5, pursuant to Article)11.07 §§(c) of the Texas Code of Criminal Pro- cedure (T.C.C.P.) and would show the Eourt the following:
I.
Thomas E. McDonnel5 TDEJ¢ID #1562227, is an offender incarcera- ted in the Texas Department`of Eriminal Justice, and is appearing pro se, who can be located at the wayne Scott Unit, Brazoria Eounty, Texas 77515. Realtor has exhausted his remedies and has no other ad-
equate remedies at law.
('|)
l
The act sought is ministerial and not discretionary in nature. T.C.C.P. Art. 11.07 §Z(d) requires REspondant to "resolve" the issues set out in the order designating issues and then have the District Clerh submit the record on such Application.
Un September 7, 2010, the Btate of Texas, by and through its court Judge,'Joan Eampbell, pursuant to T.C,E.P; Artr 11.07 §B(d) de- signated the following issues needing to be resolvedr (1) whether the Applicant was denied effective assistance of counsel.
Un September 25, 2013, the State of Texa55 by and through its court Judge, pursuant to T.C;CLP. Art. 41407 §B(d) designated the following issues needing to be resolved on Applicant's amended 11.07: (2) Prosecutor misconduct by DA addressing the Jurors on Applicant's failure to testify.
Un July B, 2015, Judicial District Court ZLBth, at the time the Realtor filed his Mandamus in the Court of Eriminal Appeals had neglected to perform its ministerial duty of resolving the.issues.
Un August 26, 2015, the Eourt of Criminal Appeals of Texas, or- dered the Respondant, Judge Eabanis, of said Eourt §248th Judicial District Bourt) to respond to Realtors mandamus by filing a response with_this Eourt and to submit the record on such Habeas Corpus App- lication. ln the alternative, the Respondant.may resolve the issues set out in the order designating issues and then have the District Elerk submit the record on such application. In either case; the Respondant‘s answer shall_be submitted within 30 dayssof the date of this order. This writ of Mandamus will be held in abeyance until v
the Respondant has submitted her resonse; Filed August 26, 2015.
(2)
The Honorable Judge Joan Eampbell who presided over the trial proceedings; issued order which were signed by the same, to serve the purpose of designating issues on both, the original 11.07 and the amended 11.07, in order to further develop the record. Appli- cant has filed numerous letters of inquiry and motions sent to the court between January 12, 2012 and November 2014.
Dn August 26, 2015, the date in which this Honorable Eourt issued its order under wRFBE,EZD-D1, the presiding Judge of Judi- cial District Eourt 248th is not the trial Judge whom presided over Realtor's trial , This current Judge has so.ruled in Eause No. 1131353-5 by accepting the affidavit of Realtor's defense counsel and also by accepting the State's order submitted by the Assistant District Attorney, Jill Burdette IB #2#055492. The record cannot disclose counsel's erroneous reason for not investigating the case nor the fact that she did not, nor could not, call potential wit- nesses who could help Realtor‘s case.
Realtor has such need of a "tive Plenary Evidentiary Hearing" to further develop the-record as to "Prosecutor Misconduct" of addressing gesser Jurors personally and commenting on Realtor's failure to testify and trial courtls ineffectiveness of trial counsel by failing to investigate-the case and failing to call witnesses to help his cause.
II.
VIULATIUN`UF U.S. SUPREME CUURT DEEISIUNS
The United State's Supreme Eourt's decisions require that the
(3)
trial court allow Realtor to develop the factual basis of his claims. T0wN5END v. BAIN, 372 U.B. 293 (1963)(held: on the record in this case the District Bourt erred in denying a writ of Habeas Corpus without a "Plenary Evidentiary Hearing". 372 U.SL 295-322); see
also ELACKLEDGE v. ALLISUN, 97 S.Et. 1621, 1653 (1977)(Eut Allison
is entitled to careful considerations and Plenary processing of his claim). Including full opportunity for presentation of relevant facts.
The trial court is_not free to ignore Supreme Court decisions. HIEHwARDEN v. BTATE, 846 S.w.2d 479, 401 (TexApp Hou [1hth Dist1 1995). Therefore, the trial court is required by Supreme.Eourt decision to allow Realtor to develop the facts from every source that has per- sonal knowledge of factual allegations within his Habeas applica- tion. 5ee EROwN v. JUHNSDN; 524 F.3d 461, 467 (Eth Eir. 2000).
lt will be-impossible for a fair and full hearing in this case to be totally dependent upon a paper hearing by affidavits. Trial counsel cannot be expected to admit her own ineffectiveness. See ALSTUN v. GARRISUN, 720 E.2d 012, 016 (Eth cir. 1983); It will therefore, require the extensive knowledge and skills of another att- orney to test the credibility of his/her answers in a cruciall cross-examination.
with this in mind, Federal Courts have consistently ruled "a Judge that did not conduct the trial is 'DISQUALIFIED‘ to judge the credibility of affidavits in Habeas proceedings by the trial counsel, DA's or witnesses, etc. This is true because only the trial judge has first hand knowledge to compose the facts that are
in said affidavits to what actually took place at trial." PERILLO v.
(L+)
JUHNSUN, 79 F,3d.hh1, hh6 (5th Eir. 1906).
State Bourt Habeas findings of fact are presumed correct "only" when there has been a full and fair hearing. 20 U;S.E. §2254(d); ARMSTEAD v; SEOTT, 61 F.3d 333; 3&7 65th Eir. 1995). Additionally, ~if these presently unresolved issues are not resolved by the trial court during a Live Evidentiary Hearing, it will deny Realtor a fair and full opportunity to resolve them.
The EOurt of`Eriminal Appeals will grant mandamus relief when a Realtor shows: 1) that the act sought to be compelled is purely ministerial and 2) that there is no adequate remedy at law. wINTERS v. PRESIDING JUDEE 0F THE BOIM. DIST. CUURT No. #£3) THREE, 110 S.w.3d 773, 775 (Tex.Crim.App. 2003); BEARSDN v. DIST. ELERK, 331 S.w.3d 431.
Additionally "the Realtor must have a clear right to the relief sought", "meaning that the merits of the relief sought is beyond dispute." IN RE RDDRIEUEZ, 77 B.w;3d at 461. The requirement of a clear legal right necessitates that the law plainly describes the duty to be performed such that there is no room for the exercise to be discretion.
wHEREFURE, PREMISES CDNSIDERED, Realtor prays that this motion
in all things be granted Hereby ordering the trial court to host a Live Plenary Evidentiary Hearing in Realtor's cause No. 1131353-0
as required by Supreme Bourt decisions. where Realtor seeks to develop factual basis of his claims "Prosecutorial Misconduct against trial-saaesel the DA and Ineffectiv Assistance of Eounsel against
`trial counsel", that if true entitle Realtor to relief. And order
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trial court to issue a Bench warrant for Realtor so he can person- ally attend this hearing. And any other or additional relief he is
justly entitled to. It is so prayed~
UNSwDRN DEELARATIUN I, Thomas E. McDonnel, TDEJ-ID #1562227, presently incarcerated at the wayne~Scott Unit of the Texas Department of Eriminal Justice, Brazoria County, Texas, verify and declare under penalty of perjury that the foregoing statements are true and correct.
EXECUTED on this 2nd day of 0ctober 2015.
Respectfully Submitted,
:>ACJ**€ 53 4&@£;&7/7/
thomas E. McDonnel #1562227 wayne Scott Unit
6999 Retrieve Rd
Angleton, Texas 77515
Realtor pro se
EERIFICATE 0F SERVIEE I hereby certify that a true and correct copy of the above application for writ of Mandamus Amendment was served on 240th Judicial District Judge presiding, by placing a copy in the U.S. Mail addressed to: Ehris Daniel, District Elerk of Eourt, 1201 Franklin St., Houston, Texas 77002 on this-the 2nd day of 0ctober 2015.
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§ealtgr #1562227
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