September 30, 2015
fRECE~VED ~~ Court of Criminal Appeals Clerk of Cou~t - Abel Acosta P~o. Box 12308 COURT OF CRIMINAl APPEALS Capitol Station Austin, TX 78711 ocr o~ 201s Dear Honorable Clerk Acosta: A!tD®~Ato~a, CUe~ Please find enclosed a copy of-~the Response that I filed with the. 248th District Court on Se.ptember ·10, 2015. The Judge of that Court had signed the Fin.dings of Fact/State 1 s Co.nclusion of Law for my 11.07 Writ of Habeas Corpus two days prior to receiving my Response and my concern· 'is· that they · sent my 1·1 . 0 7 a p p 1 i cation and all papers contained with it before they received my R~sponse, there- fore leaving it out.
I r e que s t . at t h i s time t h·a t you f i 1-e t h i s copy wi t h t h e f i 1 e that you hav·e on me. lf. this Court has alre.ady received my 11.07 Appli- cation, exhibits, memorandum of law, etc. for this Court's ruling, would you please present it to the Court for inclusion with every- thing else.
Thank you very much. for your kind assistance in this matter. I have enclosed a S.A .. S.E. for your convienence so that you can return a File/Date stamped·copy of this letter to me.
Respectfully Submitted,
Thomas E. McDonnell #1562227 Wayne Scott Unit 6999 Retrieve Angleton, Tx 77515 CAUSE NO. 1131353-B
Ex Parte § IN THE DISTRICT COURT OF
§ HARRISftOUNTV, TEXAS
THOMAS McDONNEL. § 248th JUDICIAL D~STRICT
APPLICANT'S. RESPONSE TO. THE COURT'S ORDER AND RESPONSE FOR A SUPPLEMENTAL ORDER BE ISSUE0 AND SUPPLEMENTAL REQUEST FOR A LIVE EVIDENTIARY HEARING BECAUSE THE JUDGE THAT SIGNED. THE ORDER FOR THIS PAPER HEARING IS NO.T THE SAME • JUDGE. THAT PRESIDED 0 VE R THESE PROCEEDS AT THIS TIME, HAVING NO KNOWLEDGE OF THE TRIAL. A PAPER· HEARI~G IS THEREFORE INADEQUATE.
TO THE Hb~ORABLE JUDGE OF SAID COURT:
COMES NOW, Thomas McDannel, Applicant herein and in support of
this motion will shaw this Honorable Court the following:
This Honorable Court issued an order that i~ signed by the pre-
vious Judge on January 10, 2012. This order is to serve the purpose
of designating issues in order to further develop the record.
It will· be impossible for a fair and ~ull hearing i~ this case
to be totally depen~ent upon a ~aper hearing by affidavits. Trial
counsel can not be expected to admit her own ineffectiveness, this
is the very reason that a new counsel is appointed to protect the
appeal. Al.ston v. Garrison, 720 F.2d 812, 816 (5th Cir 1983)(Coun~4
sels can not b~ expected to admit their own ineffectiveness in the
habeas proceedings in sworn affidavits). Doing so would be detri-
mental to counsels livelihood. It will therefore, require the ex-
tensive knowl.edge and ski.lls of another attorney to test the cred-
ibility of his/her answers in a. crucial cross-examination.
(1 ) It's beyond dispute that counsel's, the court reporter's and
the District Attorney's and trial Judge's. answers in their respec-
tive affidavits will all be subjected to a credibility determina-
tion. This is a duty that only the Judge that conducted the trial
can perform. Yet, in this caae, the trial judge understa.ndably can
not u nb i as 1 y assess the c red i b i 1 it y of his own. a f f ida v·i t. .With this
is mind, the Federal Courts have consistently ruled a Judge that
did not conduct the trial is "disqualified" to judge the credibility
of a f f ida vi t s p r e.s en ted in a habeas pro c e.e din g.s by the tria 1 co u n s e 1 ,
DA's or witnesses etc .•.• This is true because only the trial jud-
ge has first hand knowledge to compare the facts that.·are in said
affidavit(s) to what· actually took place at tria.l. As such, a paper
hearing will not be considered a fair and full determination of
facts in the Habeas proceeding. Perilla v. Johnson, 79 F.3d 441,
446 (5th Cir 1996).
"Moreover, even if there has been state court findings on this
issue they would not be entitled to the presumption of correctness.
State court habeas find.ings of fact are presumed cor-rect· "only" when
there has been a full and fair hearing. 28 U.S.C. §2254(d). Armstead
v. Scott, 61 F.3d 333,347 (5th Cir 1995).
''[I]t is necessary to examine in each case whether a paper hear-
ing is appropriate to the resolution of the factual dispute under-
lying the petitioner's claim." May v. Collins, 955 F.2d 299, 312
(5th Cir). Nevertheless, a factfinding procedure that involves cred-
ibility determinations and is based on a. paper hearing affords the
( 2) habeas petitioner a full and fait hearing when the state court judge
who presided over the petitioner's trial conducts the habeas peti-
tioner's proceedings. (Armstead, 37 F.3d at 208).
Next, applicant seeks to develop the factual bas.is of his claims
against the Judge and DA. These~allegations, if true, will entitle
applicant to r~dief and, therefore, by U.S. Supreme Court decision
requi.re this Court to allow applicant to develop the factual basis
of his claim. see, Townsend v. sain, 372 U.S. 293 (1963)(held; on
the record in this case the Dis~rict Court erred in denying a Writ
of Habeas Corpus without a plenary evidentiary hearing. Pp. 372 U.S.
29.5-322); see also Blackledge v. Allison, 97 S.Ct. 1621, 1633 (~977)
(''But Allison is entitled to careful consideration and plenary pro-
cessing of (his claim) including full opportunity for presentation
of the relevant f~cts''· Harris v. Nelson, 394 U.S. at 298, 89 S.Ct.
at 1090); see also Id. n.25: (When the issue is one of credibility
resolutions on the basis of affidavits can rarely be conclusive but
that is not to say they may be no be helpful.)
The trial court is Not Free to ignore Su~reme Court decisions!:
Highwarden v. State, 846 S.W.2d 479, 481 (Tex.App. Houston [14 Dist]
1993).
Therefore, this Honorable Court is Required by Supreme Court
decision to allow applicant to deve.lop the facts from every source
that has personal knowledge of the factual allegations within his
habeas application. see Brown v. Johnson, .224 F.3d 461, 467 (5th Cir
2000).
Additionally, if these presently unresol0ed issues are not re-
(3) solved by this HonQrable Court during a live Evidentiary hearing, it
will deny applicant a fair and full opportunity to resolve them.
WHEREFORE, PREMISES CONSIDERED, Applicant prays that this motion
in all things be granted, therBby ordering a live evidentiary hearing
be held· and issue a bench warrant for Applicant so he· can personally
attend this hearing. In the alternative, supplement this paper hear-
ing as requested herein and grant Applicant any other or additional
relief he is justly entitled to. It is so prayed.
CERTIFICAiE OF.SERVICE,
I hereby certify. that a true and correct copy of the above motion
was served on Chris Daniel by placing a CQpy in the U.S.
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September 30, 2015
fRECE~VED ~~ Court of Criminal Appeals Clerk of Cou~t - Abel Acosta P~o. Box 12308 COURT OF CRIMINAl APPEALS Capitol Station Austin, TX 78711 ocr o~ 201s Dear Honorable Clerk Acosta: A!tD®~Ato~a, CUe~ Please find enclosed a copy of-~the Response that I filed with the. 248th District Court on Se.ptember ·10, 2015. The Judge of that Court had signed the Fin.dings of Fact/State 1 s Co.nclusion of Law for my 11.07 Writ of Habeas Corpus two days prior to receiving my Response and my concern· 'is· that they · sent my 1·1 . 0 7 a p p 1 i cation and all papers contained with it before they received my R~sponse, there- fore leaving it out.
I r e que s t . at t h i s time t h·a t you f i 1-e t h i s copy wi t h t h e f i 1 e that you hav·e on me. lf. this Court has alre.ady received my 11.07 Appli- cation, exhibits, memorandum of law, etc. for this Court's ruling, would you please present it to the Court for inclusion with every- thing else.
Thank you very much. for your kind assistance in this matter. I have enclosed a S.A .. S.E. for your convienence so that you can return a File/Date stamped·copy of this letter to me.
Respectfully Submitted,
Thomas E. McDonnell #1562227 Wayne Scott Unit 6999 Retrieve Angleton, Tx 77515 CAUSE NO. 1131353-B
Ex Parte § IN THE DISTRICT COURT OF
§ HARRISftOUNTV, TEXAS
THOMAS McDONNEL. § 248th JUDICIAL D~STRICT
APPLICANT'S. RESPONSE TO. THE COURT'S ORDER AND RESPONSE FOR A SUPPLEMENTAL ORDER BE ISSUE0 AND SUPPLEMENTAL REQUEST FOR A LIVE EVIDENTIARY HEARING BECAUSE THE JUDGE THAT SIGNED. THE ORDER FOR THIS PAPER HEARING IS NO.T THE SAME • JUDGE. THAT PRESIDED 0 VE R THESE PROCEEDS AT THIS TIME, HAVING NO KNOWLEDGE OF THE TRIAL. A PAPER· HEARI~G IS THEREFORE INADEQUATE.
TO THE Hb~ORABLE JUDGE OF SAID COURT:
COMES NOW, Thomas McDannel, Applicant herein and in support of
this motion will shaw this Honorable Court the following:
This Honorable Court issued an order that i~ signed by the pre-
vious Judge on January 10, 2012. This order is to serve the purpose
of designating issues in order to further develop the record.
It will· be impossible for a fair and ~ull hearing i~ this case
to be totally depen~ent upon a ~aper hearing by affidavits. Trial
counsel can not be expected to admit her own ineffectiveness, this
is the very reason that a new counsel is appointed to protect the
appeal. Al.ston v. Garrison, 720 F.2d 812, 816 (5th Cir 1983)(Coun~4
sels can not b~ expected to admit their own ineffectiveness in the
habeas proceedings in sworn affidavits). Doing so would be detri-
mental to counsels livelihood. It will therefore, require the ex-
tensive knowl.edge and ski.lls of another attorney to test the cred-
ibility of his/her answers in a. crucial cross-examination.
(1 ) It's beyond dispute that counsel's, the court reporter's and
the District Attorney's and trial Judge's. answers in their respec-
tive affidavits will all be subjected to a credibility determina-
tion. This is a duty that only the Judge that conducted the trial
can perform. Yet, in this caae, the trial judge understa.ndably can
not u nb i as 1 y assess the c red i b i 1 it y of his own. a f f ida v·i t. .With this
is mind, the Federal Courts have consistently ruled a Judge that
did not conduct the trial is "disqualified" to judge the credibility
of a f f ida vi t s p r e.s en ted in a habeas pro c e.e din g.s by the tria 1 co u n s e 1 ,
DA's or witnesses etc .•.• This is true because only the trial jud-
ge has first hand knowledge to compare the facts that.·are in said
affidavit(s) to what· actually took place at tria.l. As such, a paper
hearing will not be considered a fair and full determination of
facts in the Habeas proceeding. Perilla v. Johnson, 79 F.3d 441,
446 (5th Cir 1996).
"Moreover, even if there has been state court findings on this
issue they would not be entitled to the presumption of correctness.
State court habeas find.ings of fact are presumed cor-rect· "only" when
there has been a full and fair hearing. 28 U.S.C. §2254(d). Armstead
v. Scott, 61 F.3d 333,347 (5th Cir 1995).
''[I]t is necessary to examine in each case whether a paper hear-
ing is appropriate to the resolution of the factual dispute under-
lying the petitioner's claim." May v. Collins, 955 F.2d 299, 312
(5th Cir). Nevertheless, a factfinding procedure that involves cred-
ibility determinations and is based on a. paper hearing affords the
( 2) habeas petitioner a full and fait hearing when the state court judge
who presided over the petitioner's trial conducts the habeas peti-
tioner's proceedings. (Armstead, 37 F.3d at 208).
Next, applicant seeks to develop the factual bas.is of his claims
against the Judge and DA. These~allegations, if true, will entitle
applicant to r~dief and, therefore, by U.S. Supreme Court decision
requi.re this Court to allow applicant to develop the factual basis
of his claim. see, Townsend v. sain, 372 U.S. 293 (1963)(held; on
the record in this case the Dis~rict Court erred in denying a Writ
of Habeas Corpus without a plenary evidentiary hearing. Pp. 372 U.S.
29.5-322); see also Blackledge v. Allison, 97 S.Ct. 1621, 1633 (~977)
(''But Allison is entitled to careful consideration and plenary pro-
cessing of (his claim) including full opportunity for presentation
of the relevant f~cts''· Harris v. Nelson, 394 U.S. at 298, 89 S.Ct.
at 1090); see also Id. n.25: (When the issue is one of credibility
resolutions on the basis of affidavits can rarely be conclusive but
that is not to say they may be no be helpful.)
The trial court is Not Free to ignore Su~reme Court decisions!:
Highwarden v. State, 846 S.W.2d 479, 481 (Tex.App. Houston [14 Dist]
1993).
Therefore, this Honorable Court is Required by Supreme Court
decision to allow applicant to deve.lop the facts from every source
that has personal knowledge of the factual allegations within his
habeas application. see Brown v. Johnson, .224 F.3d 461, 467 (5th Cir
2000).
Additionally, if these presently unresol0ed issues are not re-
(3) solved by this HonQrable Court during a live Evidentiary hearing, it
will deny applicant a fair and full opportunity to resolve them.
WHEREFORE, PREMISES CONSIDERED, Applicant prays that this motion
in all things be granted, therBby ordering a live evidentiary hearing
be held· and issue a bench warrant for Applicant so he· can personally
attend this hearing. In the alternative, supplement this paper hear-
ing as requested herein and grant Applicant any other or additional
relief he is justly entitled to. It is so prayed.
CERTIFICAiE OF.SERVICE,
I hereby certify. that a true and correct copy of the above motion
was served on Chris Daniel by placing a CQpy in the U.S. Mail add-
ressed to: Chris Daniel, Clerk of Court, 1201 Franklin St., Houston,
Texas 77002 on this the 10th day of September 2015.
Applicant
UNSWORN DECLARATION
I, Thomas McDannel, TDCJ-ID #1562227, presently incarcerated in
the Wayne Scott Unit of the Texa.s Department of Criminal Justice in
Brazoria County, Texas, verify and declare under penalty of perjury
that the foregoing statements are true and correct.
EXECUTED o.n this the 10th day of September 2015.
Respectfully Submitted,
Thomas Elton McDannel #1562227 Wayne Scott Unit 6999 Retrieve Rd Angleton, Texas 77515
Applicant, Pro se
(4)