McDonnel, Thomas Elton

• Court: Court of Appeals of Texas
• Decided: July 13, 2015
• Docket: WR-83,580-01
• Status: Published

Opinion

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July 8, 2015 ~3,5~0 -()) This document contains some Court of Criminal Appeals pages thafare of poor quality Clerk of Court at the time o~ Imaging. P.O. Box 12308 Austin, TX 78711

RE: Original Appliaation Fo.r Writ of Mandamus District Clerk, Harris County, Non-compliance/T. C. C. P. 11.07

Dear Honorable Clerk of Court:

Please find enclosed: (1) Original Application for Writ of Mandamus, and (2) Exhibits "A" through "E".

Please forward the Mandamus with attached exhibits to the Court for consideration and ~ulin.g. Thank you for your kind assist~ ance with this matter.

Respectfully Submitted, RECEIVED IN COURT OF CR!~tNAl APPEALS tm~· ~-McDannel TO~E. f/h~ JUL 13 2il15 TDCJ-ID #1562227 Wayne Scott Unit 6999 Retrieve Rd. Angleton, TX 77515 IN THE

COURT OF CRIMINAL APPEALS

AUSTIN, T Ex·A S

THOMAS E. McDONNEL. TDCJ-ID 11562227 RELATOR

v •

HARRIS COUN.TV DISTRICT CLERK CHRI S DANI E L :·: IN HIS OFFICLAL CAPACITY RESPONDENT

CAUSE NO~ 1131353-B RECEIVED IN COURT OF CRIMINAL APPEALS 24Bth JUDICIAL COURT OF JUL 13 2u15 HARRIS COUNTY, TEXAS

Abet Acc.st.a, Clerk ORLGINAL APPLICATION FOR WRIT. OF MANDAMUS

TO THE HONORABLE JUDGE .OF SAID COURT: ·coMES NOW, THOMAS E. McDONNEL, ·Rel·ator; pro se in the above styled and numbered cause of action and f~les this Original Appli- cation for Wri~ of Mandamus, pursuant to Art±cle 11.07 Section 3(c) of the Texas Code of Criminal ~rocedure (T.C.C.P.), and would show the Court the following:

I. Thamas E. McDannel, TDCJ~ID J1562227, is an offender incar- cerated in the Texas Department of Criminal Justice and is a~pear­

ing pro se, who can be located at the Wayn~ Siott ~nit, Brazoria ·County, Texas 77515. Relator ha.s exhausted his. remedies and has no other adequate remedy at law.

-1- I

The act sought to _be compelled is miniater~al, not discretion- ary in nature. T.C.C.P. Art. 11.07, §3(c) requires Respondent to immediately transm.it to the Court of Criminal Appeals a copy of'. the appli~ation for writ of habeas corpus, any answers filed, and a certificate raGiting ths date upon which that finding was made, if the convicting court dec~des that thers were nd issues to be resolve.d. No copy ·of the applicatimn fmr writ of habeas corpus, any answers filed, Bnd a certificate reciting ths date upon which that finding was made has·been transmi.tted to the Court of Criminal Appeals by Respbndent as required by statute~ Relator would have received notice fram the. Cnurt of Criminal Appeals had Respondent done so. II. Responden:t, Chris Daniel;::, in his official capacity as Dis- trict Clerk of Harr.is County, Texas, has ~ ministerial duty to re- ceive and file all papers in a cr±minal proceeding, and perform all other duties imposed on the cl~rk by law pursuant to T.C.C.P. Art . 2 . 21 , a n d is . res pons i·b 1 e. under T . C . C . P . Art . 11 . 0 7 , § 3 ( c ) to immediately transm±t to the Court of Criminal Appesls a copy of the application for writ of habeas corpus, any answers filed~ and a certificate reciting the date upon which the finding was made if the convicting court decides that ·there are no issues to be re- solved. Chris Daniel~, District Clerk, Harris County mBy be served at his place of business at 1201 Franklin St., Houston, Texas 77002. III. VI 0 LAT I 0 N 0 F ART I CLE 11 . 0 7 0 F T HE T EXAS CODE OF CRIMINAL PROCEDURE

The Respondent ·violated·11.07, §3(c) of the T.C.C.P. by fail- ing to provide a copy nf the application far wri.t of habeas corpus, any answers fil.ed, and a certificate reciting the date upon which that f.inding was made to the Court of Crimina~ Appeals within the tims prescribed by law and within a reasonabl8 time from the date on which the documents were required to be transmitt~d.

-2- Requests for the tr~nsmittal of the application for writ of habeas corpus, and any an~wsrs filed, and a c.ertif±cate reciting the date upon which that finding was made were made to Chris Daniel~;, District Clerk, Harris County, in the following ways: ( 1 ) in the form o f a motion , . ,"5 tate s 0 r de r to Com p l.y " , ( Exhibit " A" ) submitted by Rel.ator on January 10, 2012; (2) in the form of a motion, "To Compel Coinpliance 11 (Exhibit "8"), submitted by Relator on Apr i 1 01 , 2 01 3 ; ( 3) in the form of a motion ; "For a Live P l·e n- ary Evidentiary Hearing" (Exhibit "C"), submitted by Relator on October 09, 2014; (4) in the form of a motion, "To Have Previous Motions Ruled On" (Exhibit 11 0 11 ); and in the form of a letter dated July 17, 2015 to Chris Daniei~ making one last requ~st for his compliance with Art. 11.07, §3(c) and notif.ying him of Relator's intent to file this Mandamus if Relator does not receive notice that the Court of Criminal Appeals has received a copy of the application for writ of h.abeas corpus·, any answers filed, a certi- ficate. reciting the date upon wh~ch that finding wa~ made, and any attachinsnts filed with rir after the filing of the application. (Exhibit "E"). To date, the Relator has received no response from Respondent regarding Relator's request for transmittal of a copy of the appli- cation for writ of habeas corpus, any answers filed, and a certif- icate reciting the date upon which that finding was made to the Court of Criminal Appeals. Nor ·has Relator been notified of any ...... [·

resolutions to the trial court's designated issues. As is clear from all of the Relator's motions and final let- ter, Relator has repeatedly put Respondent on notice that Relator seeks the resolving of the designated issues and the transmittal of a copy of the application for writ of habeas corpus, any answers filed, and a certificate reciting the date upon ~hich the finding was made'to the Court of Criminal Appeals and that such records are required by the Court of Criminal Appeals to act on Relator's writ of habeas corpus. Relator has gone well beyond any requirement or obligation imposed. upon him by the T.C.C.P. In contrast to the\

-3- Relator's efforts, Respondent has wholly faiLed to ~omply with the T.C.C.P. Article 11.07, §3(c), is acting in bad faith, and has also failed to afford Relator the professional and common courtesy of any written response to his correspondence and motions. Article 11.07, §3(c) clearly states that "·[i]f the convicting court decides that there are no such issues, the c~erk shall imm- ediate.ly transmit [emphasis added] to the Court of Criminal Appeals a copy of the application, any answers filad, and a certificate reciting the date upon which that finding was made. Failure of the court to act within the allowed 20 days shall constitute such a finding." T.C.C.P. Art. 11.07, §3(c). In this particular case, the court did make a finding of fact. However, i t has been almost four (4) years since Relator has filed his original application and approaching two (2) years since he filed the amended application. Certainly time has passe.d for allowing the trial court to resolve Relator's issues, and Respondent is well past due in complying with Art. 11 .07, 13(c). Respondent .is in violation of this proce- dure, minister.ial duties, and thus the laws of the State. IV. REQUEST FOR LIVE EVIDENTIARY HEARING Relator has already submitted a motion for a "Live Plenary Evidentiary Hearing" on October 09, 2014 (Exhibit "E") which the trial court either f~iled to rule on or failed to provide Relator with a copy of its ruling. Therefore, Relator is requesting this Court either order the trial court to hold a Live Evidentiary Hearing and finally resolve Relator's issues (the cou~t's findings of facts) or to hold its own Live Evidentiary Hearing once the Respondent complies with this Court's ruling anrl sends a copy of the application, any answers filed, and a certificate reciting the date upon which that finding was made. The necessity for this Live Evidentiary Hearing is great because the convicting Judge (Joan Cam be 11) is no 1 on g e r p r·a c tic in g at the 2 48th 0 is t ric t Court . A new Judge, Kathrine Cabanis, is presidi~g and she is not familiar with the case or the finding of facts made by the previous judge.

-4- PRAYER FOR RELIEF

WHEREFORE, PREMISES CONSIDERED, Relator, Thomas E. McDannel, pro se, respectfully requests a finding that the Respondent did not transmit the documents to the Court of Crimirial Appeals within a reasonable time after the date they werB required to, and re- quested to, and that the Relator ~rought this litigation in good faith and has substantially prevailed. Relata~ prays for an ORDER directing the Respondent to transmit a cop,~of the application far writ a f habeas c o.rp us , any answers f i 1 e d , and a c e r t if i cat e reciting the date upon hlhich that finding was made to the Court of Criminal Appeals as di~ected in ArticlE 11.07 Section 3(c) of the Texas Code of Criminal Procedure and as requested in Relator's motions and letter previously sent to Respondent (Exhibits A through E). Further, Relator prays this Honorable Court to make and ORDER directing th.e trial court to hold a Live Evidentiary Hearing if this Court simply ORDERS for the trial court to resolve the findings of facts and issues. Or, conversely, Relator prays this Court to hold its own Live Evidentiary Hearing once the Re- spondent has complied with Article 11.07 Section 3(c).

Respectfully Submitted,

zL

-5- UNSWORN DECLARATION

I, Thoma~ E. McDannel, TDCJ~ID #1562227, presently incarcer~

ated 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 foregoing statements are true and correct.

EXECUTED on this the 8th day of July, 2015.

Thomas E. McDannel TDCJ-ID #1562227 Wayne Scott Unit 6999 Retrieve Rd. Angleton, TX 77515

Relator, pro se

CERTIFICATE OF SERVICE

I hereby certify that·a true copy of the above Application for Writ of Mandamus was se~ved on Chris Daniel~ by placing a copy in the U.S. Mail addressed to: Chris Daniel·j, Clerk of Court, 1201 Franklin St., Houston, Texas, 77002 on this the 8th day of July, 2015.

-6- IN THE

AUSTIN, TEXAS

THOMAS E. McDONNEL TDCJ-ID #1562227 RELATOR

v.

HARRIS .C.OUNTV DISTRICT CLERK C HR I S DANI E L ~:; IN HIS OFFICIAL CAPACITY RESPONDENT

ORDER

On this day, came to be heard the foregoing Relator's Appli- cation for Writ of Mandamus and it appears to the Court that the same should be:

GRANTED

IT IS THEREFORE ORDERED THAT the District Clerk shall immed- iately transmit to the Court of Criminal Appeals a copy of the application for writ of habeas corpus, any answers filed, and a certificate reciting the date upon which that finding was made. And further, a Live Evidentiary Hear~ng shall be conducted due to the fact that the convicting judge is no longer present, but that a new ju~ge is ncrw presiding in the 248th District Court.

SIGNED on this the day of ------ ' 201 5.

Presiding Judge

-7- EXHIBIT "A" - Motion: States Order to Comply - ..- CHRIS DANIEL HARRIS COUNTY DISTRICT CLERK

January 17, 2012

THOMAS ELTON MCDONNEL # 1562227-WAYNE SCOTT UNIT 6999 RETRIEVE RD. ANGLETON, TX 77515

To Whom It May Concern:

Pursuant to Article 11.07 ofthe Texas Code of Criminal Procedure, please find enclosed copies of the documents indicated below concerning the Post Conviction Writ filed in cause number 1131353-B in the 248TH District Court.

D State's Original Answer Filed

D Affidavit Filed

D Court Order Dated

[gl Respondent's Proposed Order Designating Issues and Order For Filing Affidavit.

D Respondent's Proposed Findings of Fact and Order Dated

D Other

Enclosure(s)- RESPONDENT'S PROPOSED ORDER DESIGNAJTNG ISSUE AND FOR FILING AFFIDAVIT

1201 FRANKLIN • P.O. Box 4651 • HOUSTON, TEXAS 77210-4651 • (888) 545-5577 ·

PAGE I OF I REV: 01-02-04 FILED / Mr~ Chris Daniel District Clerk Cause No. 1131353.KB JAN 1 0 20 2 EX PARTE § IN THE 24~J;>ISTRI ----,:;;k~~:di--- § OF

THOMAS ELTON MCDONNEL, § HARRIS COUNTY, TEXAS Applicant

STATE'S PROPOSED ORDER DESIGNATING ISSUE AND FOR FILING AFFIDAVIT

Having considered the application for writ of habeas corpus in the above-captioned cause

and the State's original answer, the Court finds that the issue of whether the applicant was denied

effective assistance of counsel still needs to be resolved in the present case.

Therefore, pursuant to Article 11.07, §3(d), this Court will resolve the above-cited issue

and then enter findings of fact \

To assist the Court in resolving these factual issues, counsel Mary toore is ORDERED

to file an affidavit summarizing her actions as counsel for the applicant in the primary case,

cause number I i31353, and specifically responding to the following:

1. Please outline how counsel investigated the applicant's case. Wias the investigation limited in any way? If so, please explain why.

2. Was counsel aware of the applicant's lack of a criminal background or prior arrest history? Was there anything in particuiar about the applicant's lack of criminal background or prior- arrest history that counsel used at trial or believes would have been beneficial and admissible at trial that she failed to employ at trial? If so, please explain why.

3. Does counsel believe that she had a finn grasp of the facts surrounding the applicant's case at the time of trial? Was counsel ready for trial?

4. Please indicate if the applicant brought any potential witnesses to the attention of counsel that. counsel chose not to interview. If there are any such witnesses, please explain why no interview was conducted. I

5. Was counsel aware of any witnesses that would have been beneficial or necessary to the defense of the applicant that she failed to interview or call at trial? If so, please explain why. :

1 6. Please indicate the nature of any grievances that the applicant filed with the State Bar against counsel prior to trial, and please include copies of any such grievances or responses to such grievances that are available.

7. Does counsel believe that any grievances that the applicant filed with the State Bar affected her representation of him at trial in any way? If so, please explain how.

8. Please indicate whether counsel believes that any actual conflict of interest existed between herself and the applicant as a result of any grievances filed by the applicant with the State Bar.

9. Please indicate whether counsel felt it would have beenbeneficial or necessarj tc file a motion for discovery or a motion to suppress evidence in the applicant's case. Please explain why or why not.

Mary Moore is ordered to file said affidavit with the Appellate Division of the District

Clerk's Office, 1201 Franklin, Third Floor, Houston, Texas 77002, within THIRTY DAYS of

the signing of this Order. ·····-

The Clerk of the Court is ORDERED to send a copy of this Order to the applicant and to

the State, and to serve copies of this Order, the application, and the memorandum supporting the

application on attorney:

Mary Moore 1314 Texas St., Suite 1600 Houston, TX 77002

When the affidavit of Mary Moore is received, the Clerk is ORDERED to send a copy of

said affidavit to the applicant, Thomas Elton McDonnel, #1562227 -Wayne Scott Unit, 6999

Retrieve Rd., Angleton, Texas 77515 and a copy to the attorney for the State, Kevin Keating, 1201

Franklin, Suite 600; Houston, Texas 77002.

2 ' ·,, . (~J Cause No. 11313 53-)( i3 EX PARTE § IN THE 248th DISTRICT COURT

§ OF

. CERTU~ICATE OF SERVICE

· The undersigned counsel certifies that I have served a copy of the ".State's Proposed OrJu- {)e-'~5""'~-~;I'-S"'e. -"'~ ~ ... F,"/i'n.!l Aff'c.\ov ;.J-- Findings of Fad, Cgaell:lsiefts ef lam, and Onief" in cause number 1131353-B to the applicant

on January 10, 2012 by mail as follows:

Thomas Elton McDonnel· #1562227- Wayne Scott Unit 6999 Retrieve Rd. Angleton, Texas 77515

k:-~ Kevin P. Keating .. Assistant District Attorney Harris County, Texas 1201 Franklin, Suite 600 Houston, Texas 77002 (713) 755-6657 Texas Bar ID #00787813

FILED Chris Daniel District Clerk

JAN 1 0 20\2

4 •. : ...., c ..-'

The Clerk of the Court is ORDERED NOT to transmit at this time any documents in the

above-styled case to the Court of Criminal Appeals until further ordered by this Court.

By the following signature, the Court adopts the State's Propo d Order for Filing Affidavit. Signed day of 2011.

JAN f.7 2012

3 l.

EXHIBIT "8" - Motion: To Compel Compliance - . "' ' Thomas E. McDannel Wayne Scott Unit 6999 Retrieve Rd. Angleton, TX 77515

April 1, 2013

Attorney General Harris County Clerk Attorney Moore

Re: Filing of Motion Cause: 1131353-8

Greetings, Enclosed you will find the MOTION TO COMPEL COMPLIANCE WITH STATE'S PROPOSED ORDER DESIGNATING ISSUES AND ORDER FOR FILING AF- FIDAVIT. Included is the Court's Copy, Clerk's Copy, Attorney Ms. Mary Moore Copy mailed to 1314 Texas Street, Ste.,#1600 Houston, Texas 77002 and Attorney General Greg Abbot, Post Office Box 12548 Austin, Texas 78711-2548. Enclosed you will also find my self addressed & stamped enve- lope for return of the filemark, date and stamped copy for my per- sonal records in this action before the Court. Thanking this Honorable Clerk's Office for your timely attent- ion to this most important legal matter.

-~~ z. ~C/~'M/ Thomas Elton McDannel TDCJ-ID #1562227

cc: AG Greg Abbot Attry M. Moore CAUSE NO: 1131353-8

THOMAS E. McDONELL § IN THE DISTRICT COURT

vs. § 24BTH JUDICIAL DISTRICT

STATE OF TEXAS § HARRIS COUNTY, TEXAS

MOTION TO COMPEL COMPLIANCE WITH STATE'S PRO~OSED ORDER DESIGNATING ISSUES AND ORDER FOR FILING AFFIDAVIT

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW, Thomas E. M~Donnell, hereinafter referred as Movant,

proceeding in own beb~lf pro-se, pursuant to the Texas Code of Cri-

minal Procedure, Article 11 .07, § 3(d), in above listed cause and would there-

fore show this Honorable Court the following facts:

I.

Movant previously has filed a Texas Code of Criminal Procedure

11.07 Application for Writ of Habeas Corpus with this Court on the

7th day of September, 2012. This. Court issued State's Proposed Ord-

er Designating Issue And For Filing Affidavit from Mary Moore whom

previously represented movant in this Trial Court as his attorney.

This Order contained issues of fact and was certified on Jan 17,12.

Copies were mailed by this Court's Clerk pursuant to rule going un-

answered by said attorney indefinitely.

II.

Movant did, after said delay in answer from Mary Moore, file a

Motion To Compel. Compliance With Court Order on the 29th of Novem-

ber 2012 and placed into the unit United States Mailbox with proper

certificate of service dated and signed by movant. Said motion did

contain movant's filemark copy with sef addressed and stamped en-

velope for return to movant. Movant never received said filemark

copy from this Court's Honorable Clsrk's Office. It is now been

(1 of 3) approximately six months with no reply from Mary Moore.

III.

Movant requests that upon attorney Mary Moore's compliance to

State's Proposed Order Designating Issue And For Filing Affidavit

is received by this Honorable Court and Clerk's Office that a com-

plete copy of said answer be forwarded to movant/applicani.

PRAYER

WHEREFORE, PREMISES CONSIDERED, movan.t prays that this Honorable

Court will demand compliance with its ORDER previously issued and

with all things considered in the interest of justice and grant

this pleading.

1~£.mcMJ Thomas E. McDonnel,prose Wayne Scott Unit 6999 Retrieve Road Angleton, Texas 77515

(2 of 3) Attached Certificate of Service CERTIFICATE OF SERVICE

I, HEREBY CERTIFY, that on this 1 day of April 2012, a true and

correct copy of this above and foregoing MOTION TO COMPEL COMPLI-

ANCE WITH STATE'S PROPOSED ORDER DESIGNATING ISSUES AND ORDER FOR

FILING AFFIDAVIT was placed into the Texas Department of Criminal

Justice - Institutional Division Wayne Scott Unit internal United

States Mail System out-going-box, with proper postage attached,

for delivery to the Harris County Criminal Judicial District Clerk's

Office at Post Office Box 4651 Houston, Texas 77210 - 4651, as

well as copy to attorney Ms. Mary Moore at 1314 Texas Street in

Suite #1600 Houston, Texas 77002.

R~spectfully Certified, ./ J~£~eu/. Thomas Elton M~Donnel Wayne Scott Unit 6999 Retrieve Road Angleton, Texas 77515

(3 of 3) CHRIS DANIEL HARRIS COUNTY DISTRICT CLERK

October 28, 20 13

THOMAS ELTON MCDONNEL # 1562227 WAYNE SCOTT UN IT 6999 RETRIEVE RD ANGLETON, TX 77515

Pursuant to Article ll.07 of the Texas Code of Criminal Procedure, please tind enclosed copies of the documents indicated below concerning the Post Conviction Writ filed in cause number 1131353-B in the 248th District Court.

D Affidavit

[ZJ Court Order Dated October 25, 2013

D Respondent's Proposed Order Designating Issues and Order For Filing Affidavit.

D Respondent's Proposed Findings of Fact and Order

sf·~.c~q .· ,l

R~. · a Garcia, Deputy Criminal Post Trial

rg

Enclosure(s)- AMENDED ORDER TO FILE AFFIDAVIT FOR MS. MARY MOORE

120 I FRANKI.IN • P.O. BOX 4651 • HOUSTON. TEXAS 77210-465 I • (888) 545-5577

PAGE I OF I REV: 01-02-04 -('~ . f~ ~;,.,,~ 2 o~,-?'i-.S. ~/. 0 ~} r}. ·, ->:2~. :;u co, 0<¥~"?1c, C.~se No. 113 13 53-B 1 (?!- · 'C.r· · · .J /o :1 ~ ""-- / _:;. ' . (} ~'+ EX PARTE '<:~\~.;·;,... ~~? § IN THE 248 1h DISTRICT COURT ~., ...... (~;,·~,..

..~~' ... :;;., ·'·"•:,, ~ § OF

THOMAS ELTON Applicant MCD~~ ([j' § HARRIS COUNTY, TEXAS

AMENDED STATE'S PROPOSED ORDER DESIGNATING ISSUE AND FOR FILING AFFIDAVIT

Having considered the application and supplement appli;;,ation fur vvrit of habeas corpu5 in

the above-captioned cause and the State's original answer, the Court finds that the issue of whether

the applicant was denied effective assistance of counsel still needs to be resolved in the present

case.

Therefore, pursuant to Article 11.07, §3(d), this Court will resolve the above-cited issue

and then enter findings of fact.

To assist the Court in resolving these factual issues, counsel Mary Moore is ORDERED

to tile an affidavit summarizing her actions as counsel for the applicant in the primary case,

cause number 1131353, and specifically responding to the following:

I. Please outline how counsel investigated the applicant's case. Was the investigation limited in any way? If so, please explain why.

2. Was counsel aware of the applicant's lack of a criminal background or prior arrest history? Was there anything in particular about the applicant's lack of criminal background or prior arrest history that counsel used at trial or believes would have been beneficial and admissible at trial that she failed to employ at trial? If so, please explain why.

3. Does counsel believe that she had a firm grasp of the facts surrounding the applicant's case at the time of trial? Was counsel ready for trial?

4. Please indicate if the applicant brought any potential witnesses to the attention of counsel that counsel chose not to interview. If there are any such witnesses, please explain why no interview was conducted.

- I "· 'L-i IJ U r·~i 5. Was counsel aware of any witnesses that would have been beneficial or necessary to the defense of the applicant that she failed to interview or call at trial? If so, please explain why.

6. Please indicate the nature of any grievances that the applicam filed with the State Bar against counsel prior to trial, and please include copies of any such grievances or responses to such grievances that are available.

7. Does counsel believe that any grievances that the applicant filed with the State Bar affected her representation of him at trial in any way? If so, please explain how.

8. Please indicate whether counsel believes that any actual conflict of interest existed between herself and the applicant as a result of any grievances filed by the applicant with the State Bar.

9. Please indicate whether counsel felt it would have been beneficial or necessary to tile a motion for discovery or a motion to suppress evidence in the applicant's case. Please explain why or why not.

I 0. Please indicate whether counsel "opened the door" to Applicant's extraneous offense on cross-examination of the State's witnesses. If so, please state counsel's trial strategy for "opening the door" to Applicant's extraneous offense.

11. Please indicate whether the State commented on applicant's failure to testify during closing argument. If the State commented on applicant's failure to testify during closing argument, did counsel object and preserve the issue for appeal? If the State commented on applicant's failure to testify during closing argument and counsel did not object and preserve the issue for appeal, please state counsel's strategic reasons for doing so.

Mary Moore is ordered to file said affidavit with the Appellate Division of the District

Clerk's Office, 1201 Franklin, Third Floor, Houston, Texas 77002, within THIRTY DAYS of

the signing of this Order.

The Clerk of the Court is ORDERED to send a copy of this Order to the applicant and to

the State, a;1d to serve copies of this Order, the application, and the memoranJum supporting the

2 When the affidavit of Mary Moore is received, the Clerk is ORDERED to send a copy of

said affidavit to the applicant, Thomas Elton McDonnel, #1562227- Wayne Scott Unit, 6999

Retrieve Rd., Angleton, Texas 77515 and a copy to the attorney for the State, Aimee Bolletino,

1201 Franklin, Suite 600; Houston, Texas 77002.

The Clerk of the Court is ORDERED NOT to transmit at this time any documents in the

above-styled case to the Court of Criminal Appeals tmtil further ordered by this Court.

By the following signature, the Court adopts

3 Cause No. 1131353-B

EX PARTE § fN THE 248 1h DISTRICT COURT

THOMAS ELTON MCDONNEL, § HARRJS COUNTY, TEXAS Applicant

The undersigned counsel certifies that I have served a copy of the "State's Proposed

Order Designating Issue and for Affidavit" in cause number 1131353-B to the applicant on

September 30, 2013 by mail as follows:

Thomas Elton McDannel #1562227- Wayne Scott Unit 6999 Retrieve Rd. Angleton, Texas 77515

'-~ Aimee Bolletino Assistant District Attorney Harris County, Texas 1201 Franklin, Suite 600 Houston, Texas 77002 (713) 755-6657 Texas Bar ID #2405671 7

4 EXHIBIT 11 C" - Motion: For a Live Plenary Evidentiary Hearing - CAUSE NUMBER 1131353-B

EX PARTE § IN THE 24BTH DISTRICT THOMAS E .. McDONNEL § COURT OF Applicant § HARRIS. COUNTY, TEXAS

APPLICANT'S MOTION FOR A LIVE PLENARY EVIDENTIARY HEARING

TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW, Thomas E. McDannel, Petitioner prose in the above numbered and styled cau~e and files this motion for a Live Plenary E vide n.t i.a r y Hearing and Bench Warrant, pursuant to art. 11 . 0 7 of the Tex.Code. Crim. Proc. and will show the Court as followed: I. A. Petitioner 1 . 01 Thomas E. McDonrrel, TDCJ-ID #1562227, is an offender incarcerated in the Texas Dep.t. of Crim. Justice (TDCJ) and is prose, who can be located at the Wayne Sco.t·t Unit, 6999 Retrieve Rd., CR 290, Angleton, Texas 77515. 1 . 02 Petitioner has repeatedly petitioned this Court to ·act on Petitioner's 11.07. Petitioher requests the Court to take ju- dicial notice of the District Clerks file on the above cause num- ber and obtain motions and inquiries asking that the issues be resolved. 1.03 The previous presiding judge, Judge Cambsll, did in fact order the· Court Clerk .not to transmit any doc u me.n t s in the above styled case until further notice due to the fact that there were issues to be resolved by this said Court. 1 . 04 The defense c.ounsel, Attorney· Mary Moore, was issued a notice to answer by affidavit the questions set forth in the Peti- tioner's 11.07 Writ of Hab~as Corpus. The defen~e attorney has been issued several notices to answer ths aforementioned affidavit. To this date the Petitioner has not received a copy of the affi- davit nor has any of the documents been tran~mitted to the Court

-1- .. of Criminal AppealB" If the~e.ab.ove styl~d documents had been t r a n s mi t t e d . t o t h e Co u r t . o f Cr i mi n a l Ap p e a.l s· , t h e . P e t i t i o n e r wo u l d have- been notified. The. State, Feder~l and Supr.eme Court case.- law_ mandates that when an. applicant. files a. collateral attack on ··his criminal con- viction , t h.e initial task is . to. ·de t.e.r mine whet h e.r his allegations if proven would establish the right to HabeEs ~elief. If so proven, he is:enti~led to .an evide~tiary hearing to further develop the factual .. basis w~th facts outside the record. Ex Parte Reyna, 702 S . W. 2 d 9 21 ( T x . Crim . Ap p . 1 9 8 6) ; Streetman v . 'Lv n aug h , 81 2 F. 2 d 9 50 ( 5th Ci r . ) ; Towns e_nd v . Sa in , 3 7 2 U . S . 2 9 8 , 3 0 7 , 8 3 S ..Ct . 7 4 5 , 9 L.Ed.2d 770 (1963). II. Applicant asse.rts (inter alia) .constitutional ineffectiveness of trial counsBl, prosecutorial misconduct, ~nd error of the trial court. In seeking th~ instant Live Plenary Evidentiary Hearing to prove these assertions, Applicant has need to develop facts that are presently outside the record. It will be impossible for this Honorable Court to adequately determine the merits of Applicant's claim without· further develop me n.t of these facts that are outside the record. The need to fully develop the record is of the utmost importance because the Court of Criminal Appeals will be .limited to the record as it was developed within; the trial court. Galvin v. State, 869. S.W.2d 526, 527-29 (Tx.App. - Corpus Christi 1993). As the record now stands, it is totally inade.quate for the Court to perform its .required duty.

I I I I I. Inordinate- Delay: 1 . 01 The Court , the ·.District Attorney , and . the Petitioner ' s defense counsel, Mary Moore, ·have wholly failed to comply with article 11.07 df the Tex.Code Crim.Proc., are actin~ in bad faith and have not afforded Petitioner with profes&ional and common cou- rtesy at resolving these issues in Petitioner's 11.07 as so order-

-2- .' ed by the previous judge. 1 . 02 Wilwording v. Swenson, 92 S.Ct. 487 at. 249-250 (rejecting suggestion tha.t Sta.te prisbner should have invoked any other poss- ible alternative to state habe~s. including a suit for injunction, a writ of prohibition, or mandamus or declaratory judgment in State's court o~ perhaps ot~er relief under State Administratio~

Procedure Act.). In Turner v. Bagley, 401 F.3d 718 {6th Cir. 2005) 28 U.S.C. 2243 confers Federal Courts with the discYetion to dis- pose of Habeas Corpus matters and tailor remedies as law and jus- tice requires. CONCLUSION The Petitioner has shown this Court that under the Sixth Amend- ment of the. United States CO,nstitution he has been denied the right to effective assistance of counsel as·well as dus process of la~. The District Court has deni·ed.Petitioner due process of law by delaying to rule on his 11.07 Writ of Habsas CorpuB. As a prose litigant, Petitioner respectfully asks this HDnorabla Court to grant his motion for A Live Ple.nary Evidentiary Hearing. PRAYER WHEREFORE, PREMISES CONSIDERED, Petitioner prays that this ~otion will b.e. granted, a bench warrant issuerl, and a ruling be is~ued that have been filed in the cause number and grant Petition- er any other orLadditional reLief he is justly entitled to, it is so prayed.

-3- • 0

CERTIFIC.ATE OF SERVICE I hereby ce~tify that a true. copy of th.e foregoin~ instrument wa~ served to the District Court Clerk by placihg a. copy in the U.S. mail addressed to: Harris County;Courthouse 248th District Court 1201 Franklin St., 16th Floor Houston, Texas 77002

EXECUTED on the day of 2 01 4.

Thomas E. McDannel Respectfully Submitted,

zL~~ #1562227 Wayne Scott Unit 6999 Retrieve Rd., CR 290 Angleton, Texas 77515 T4lomas E. McDannel

-4- EXHIBIT "0" - Motion: To Have Previo~E Motions Ruled On - • } ) "!:"\

i:, / /> . ~ "~0.'•-1:; ;4,,·· ~- ?/, 0';.-:1:9,-·..-::. • .·· 'l.__,~ \.)'C',y_~Lf'<;< 0>·~· Chris Daniel "i:. ':~ Oc!;..rJ~,· Ha r r i s Co u n t y Di s t r i c t Cl e r k :r,..-1'>' /..> '1:>-f}:~j~~ 4 6 51 -------------~-~-~-~-t-~-~-~~e->ca---s7T2T0-=-4-6_5_1________Tt,'i2 7· ·~J::!..Q-~- J}_-------------- --~~~ ----- -~ ~\- . v ..:.u~ JJ t ~.,·y"· (#. • 1!1. ;6 Nov ember 21 04 ~b. '(1:;.: ·vv1 . VY RE : Mo t i o n P u r s u a n t t o F e d e r a l Ru l e s o f Ci v i l P r o c e d u r e Ru 1 e 7 2 . \~b~- To have motions ruled on: ~

'~ Ch r i s Da n i e 1 11

Dear Sir: I have enclosed a motion for ruling according to Fed. Rules of Civil Proc. Rule 72, for filing with your office and also to be considered by the 248th Judicial District Court Judge Katherine Cabanis presiding. I have a self-addressed stamped envelope to be returned unto me with this coverletter, requesting that you please file date stamp it and return to me using said envelope showing that this motion was presented to said Court and Judge presiding. Your cooperation, time and patience is greatly appreciated. Thank you.

Thomas E. McDannel #1562227 Wayne Scott Unit Respectfully Submitted, 6999 Retrieve Rd. Angleton, Texas 77 51 5 Thomas E. McDannel

Date: November ,2014

C/C Filed: ....

Cause Nos. 113153-B &

Ex Parte § ------Tliomas E. McDannel § §

PtAINTIFF MOTION PURSUANT TO FEDERAL RULES OF CIVIL RULE 72. TO HAVE HIS NUMEROUS PENDING MOTIONS RULED ON:

TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW, Thoma~ E. McDannel, Plaintiff herein, proceeding Pro se and in support of this motion will show this Honorable Court the following:

I. p 1 ai n t i f f. i s . e n t i t l e d to have mo t i o n s r u l e d on t h a t ate ·no t dispositive of the entire Cause of Action. See Fed. R. Civ. Rule 72; "Non-dispositive Matters. When a pretrial matter not dispositive of a parties claim or defense is referred to a trial Judge to hear and decide, the trial Judge must promptly conduct the required proceed- ings and when appropriate, issue a written order stating the deci~~

sian. A party may serve and file objections within 10 days after being served with a copy."

II. Plaintiff has the following motions pending for which he is now seeking a ruling: 1 .) Plaintiff's Application of Writ of Habeas Corpus Cause No. 113153-B wherefore Assistant District Attorney for Harris County and said Court designated issues on the date of February 14, 2011. "Applicant was denied the effective assistance of counsel.'' Controverted praviously unresolved facts material to the leqalitv of ApplicaMt's confinement and needs to b~ resolved. 2.) ?laintiff's motion for a Live Plenary Evidentiary Hearing, filed on October 9, 2014.

-1-

\~ PRAYER: WHEREFORE, premises considered, Plaintiff prays that this motion -----G:ri-rrBe gran'fed and thereafter a ruling be issued on each motion that has been filed in these causes, and grant Plaintiff any other or add- itional relief he is justly entitled to, it is so prayed.

CERTIFICATE OF SERVICE: Service has been accomplished by mailing a true and correct copy of the following forgoing instrument to the following address: Chris Daniel Harris County District Clerk P.O. Box 4651 Houston, Texas 77210-4651

Executed on this day of I~ November 2014, under both Fed- eral Law (28 U.S.C. §1746~ and State Law CV.A.C.C. Proc. & Remedies Code §132.001-132.003).

'7 ~~ t[ lv 0~.__/' Thomas E. McDonnel TDCJ-ID #1562227 Wayne Scott Unit 6999 Retrieve Rd. Angleton, Texas 77515

-2- EXHIBIT "E" -Letter: Inquiry and Notice to File Mandamus.- 4,

June 17, 2015

Harris County Courthouse Clerk o~ Court - Chris Daniels 1 201 Franklin St. Houston, TX 77002

RE: Writ of Habeas Corpus Application Cause No. 11 31353-B

Dear Honorable Clerk Da~iels:

I am writing to you because you have not complied with Article 11.07, §3 (c) of the Texas Code of Criminal Procedure. On August 31, 2011, I filed my original 11.07 hlrit of Habeas Corpus Application. The Court designated. issues, but then ~L\.•did not hear any·thing after that. So, on January 10, 2012 I filed. a 11 State 1 s Order· to Comply 11 motion with the court • Then on Apr i 1 1 , 2 01 3 I f i 1 e d · a motion 11 To Co mp e 1 Co mp 1 i a n c e 11 wi t h t h e Co u r t . I t h e n f i 1 e·d a n Am e n d e d 1 1 . 0 7 Writ of Habeas Corpus with the Court on 09-25-2013. On October 9, 2 0 1 4 I f i 1 e d a mo t ion 11 For a Live P 1 e n a r y · Ev i de n .t i a r y H·e ar in g 11 • An d finally on November 17, 2014 I filed a motion 11 To Have Previous Motions Ruled On 11 •

To this date, my motibns hav~ not been ruled on (if they have then I have not been provided with a copy of the ruling) and my 11.07 Writ of Habeas Corpus Application has not been forwarded to the Court of Criminal Appeals.

Per T CCP 11 . 0 7 , § 3 ( c ) , you are required to immediate 1 y .trans- mit to the Court of Criminal ~ppeals a copy of the applic~tion, any answers filed, and a certificate. reciting the date upon which that finding was made, if the convicting court decided that there were no issues to be .resol.ved. In my ·c.a•se.,·,··ther'eo.were.:is"SUes~·:designated to be resolved. In that case, I believe. you are given 180 days to resolve the issues and if you (the Court) has not, then you, Clerk Daniels, are required to immedicately send the above listed ite~s to the Court of Criminal Ap~eals. You have faile~ to do this. Since my original. Application was mailed to you, it has been almost four (4) years and since the Amended Application was sent it has been just over one and a half years. It' is beyond time to send every- thing to the Court of Criminal Appeals. It is to the point now where you are acting in bad faith.

This letter is to serve two purposes. The first, is to request o n e 1 a s t t i me f o r y o u t o f u 1 f i 11 y o u r d u.t y a s t h e Ha r r i s Co u n t y Clerk, and mail my 11.07 Application, any answers filed, the cert- ificate reciting the date upon which the findings were made, exhibits, and r~ason for untimely delay in doing. so to the Court of Cri~inal Appeals. The second purpose, is to.inform you that I will be filing '

a Writ of M.andamus to the Court of Criminal Appeals if I do not receive notiGe from.them within 14 business days of this letter that you have transmitted to them.all the a.ppropriate doc~ments. '.

It is my understanding that the convicting Judgs, Judge Cambell, i s n o 1 o n g e r t h.e r e a n d t h a t Ho no r a b 1 e J u d g e Ka t h r i n e Ca b a n i s i s the sitting judge at this time. It was for this Very reason that I submitted my motion for a Live. Plenary Evidentiary Hearing.

I have enclosed a ~ASE for the purpose of sending me a file ma r k e d I d a t e s t am p e d c o p y t o me .s h o wi n g y o u r .r e c e i p t o f t·h i s 1 e t t e r and notice of intent tb file a mandamu·s. Also~enclosed, inside the SASE , is the first page copy of this 1 e t t e r for you · t·o use in f i 1 e marking/date stamping. I appreciate your timely response to this matter and pray that you will follbw the rules ~rovided in TCCP, 11.07, §3(c). Thank you.

Sincerely,

~L~,WJ/ Thomas E. McDannel TDCJ-ID #1562227 Wayne Scott Unit 6999 Retrieve Rd. Angleton, TX 77515 - I!JoJ(Jf2S 117t !Jo~J;Vtl :1/1..5~2;}.;1,_ 1 ~. ,. iJilj~G 5tJtl M: .. !o Vi? kli/t~ .· d 4vg!t itJ;/) 7t'xu~ 17515