DONALD JAY PRUITT TDCJ~CID# 1057730 WILLIAM CLEMENTS UNIT 9601 SPUR 591 AMARILLO, TEXAS 79107
ABEL ACOSTA, CLERK COURT OF CRIMINAL APPEALS OF TEXAS P.O. BOX 12308, CAPITOL STATION RECEIVED IN AUSTIN, TEXAS COURT OF CRIMINAL APPEALS 78711 fVIAR 0 6 2015
RE: WRIT No._tJf<.·- ss; J'/3-Q3, EX PART~ DONALO JAY PR~lfl!~JrAf;ostagCUertk FtL1NG OF MOTION.
Dear Honorable Clerk: '. :. Plea~e: f i~d~- ~~clbs~d i m~ ·,-- ;; MbTIO~ .-REQUESTING'. COURT cir- -~rurV!iNAL
APPEALS TO ORDER TRIAL COURT TO DESTGNATE ISSUES TO BE RESOLVED
AND PREPARE PROPER~FINDINGS.OF:FACT~AND, CONCLUSIONS OF LAW RE-
GARDING APPLICANT~S WRIT OF HABEAS CORPUS PURSUANT TO THE PRO-
VIS!ONS,.OF § 11.07."
Would you please see to.~it that this Motion gets attached to
my habeas application for presentation to the Honorable Justices.
I thank you in advance in this
very important matter.
Sincerely yours,
~mt//r)#-~ Donal~ay Pruitt
Pro Se Representation WRIT NO. t-Jl.-£5;:J~t3-Q3
EX PARTE § IN THE COURT OF
§ CRIMINAL APPEALS
DONALD JAY PRUITT § AT AUSTIN, ,TEXAS
*****************************************************************
MOTION REQUESTING COURT OF CRIMINAL APPEALS-TO ORDER TRIAL
COURT TO DESIGNATE ISSUES TO BE RESOLVED AND PREPARE PROPER
FINDINGS OF FACTS AND CONCLUSIONS OF LAW REGARDING APPLICANT'S
WRIT OF HABEAS CORPUS PURSUANT TO THE PROVISIONS OF § 11.07
*****************************************************************
TO THE HONORABLE JUSTICES OF THE COURT OF CRIMINAL APPEALS:
COMES NOW, Donald Jay Pruitt, Applicant, pro se, and respect-
fully moves this Honorable Court to set aside the Clerk's Record
that has been fowarded to this Court, pursuant to Texas Code of
Criminal Procedure, Article 11~07, for failure to comply with Sec-
tion 3.(c) governing 11.07 proceedings.
Section 3(c) governing § 11.07 procee~ings provides:
Within 20 days of the expiration of the time in which the state is allowed to answer, it shall be the duty of the con- victing court to decide whether there are controverted, pre- viously unresolved facts material to the legality of the applicant's confinement. Confinement means confinement for any of fen s e · or any co ll ate r a 1 cons e·qu en c e res u l t i n g f rom t he conviction that is the basis of the instant habeas corpus. If the convicting court decides that there are no such issues, the clerk sh~ll immediately transmit to the Court of Criminal Appeals a copy of the application, any answers filed, and a Page 2.
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.
ARGUMENTS & AUTHORITIES
Although the trial court acted within 20 days of the expiration
of the time in which the state was allowed to answer. The trial
court in the instant habeas corpus, decided that there are no con-
troverted, previously unresolved facts material to the legality of
applicant's confinement. The trial court then orde~ed the Clerk to
transmit the entire habeas corpus record to this Court. Applicant
requests that this Honorable Court set aside the Clerk's Record in
the instant action and remand for proper findings of facts and con-
elusions of law pursuant to the provisions of § 11.07. Applicant
will show the Court as follows:
On page bne of Applicant's ''MEMORANDUM OF LAW IN SUPPORT OF
APPLICATION FOR A WRIT OF HABEAS CORPUS PURSUANT TO TEXAS CODE OF
CRIMINAL PROCEDURE 11.07." Applicant stated the following:
REQUEST FOR EVIDENTIARY HEARING & EXPANSION OF THE RECORD
Applicant has presented this Honorable Court with controverted,
previously unresolved issues of fact material to the legality of
applicant's confinement, which, if true, entitle him to relief.
''In a post-conviction collateral attack, the burden is on the
applicant to allege and prove facts which, if true, entitle him
to relief.'' Ex parte Maldonado, 688 S.W.2d 114, 116 (Tex.Crim.App.
1985); Ex parte Richardson, 70 S.W.3d 865, 870 (Tex.Crim.App.2002);
Ex parte Morrow, 952 S.W.2d 530, 534 (Tex.Crim.App.l997).
"It is the applicant's obligation to provi~e a sufficient record Page 3.
that supports his allegations with proof by a preponderance (not
beyond all reasonable doubt) of the evidence." Ex parte Chandler,
182 S.W.3d 350, 353 (Tex.Crim.App.2005).
Because the burden of proof is on the applicant and, the fact
that the Court of Criminal Appeals does not hear evidence, only
the trial court my conduct a hearing. Therefore, Applicant re-
quests this Honorable Court to conduct a live evidentiary hearing.
**********************
Applicant presented the following two Grounds For Relief in
the instant case: (These were the only Grounds in the 11.07).
GROUND ONE (VERBATIM)
APPLICANT'S COUNSEL WAS INEFFECTIVE IN FAILING TO CONDUCT A REASONABLE PRE-HEARING INVESTIGATION FOR MITIGATION EVIDENCE AND INTRODUCE SAME AT APPLICANT'S REVOCATION HEARING. THIS VIOLATED APPLICANT'S RIGHT TO COUNSEL, AS GUARANTEED BY AMENDMENTS 6 AND 14 TO THE U.S. CONSTITUTION. SEE WIGGINS V SMITH, 123 S.CT.2527 (2003); WILLIAMS V TAYLOR, 120 S~CT. 1495 (2000); STRICKLAND V WASHINGTON, 104 S.CT.2052 (1984). .
GROUND TWO (VERBATIM)
APPLICANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AND DUE PROCESS OF LAW WHEN TRIAL COUNSEL ADAM REED FAILED TO CONVEY THE STATE'S TWO PLEA .OFFERS. THIS. VIOLATED APPLICANT'S RIGHT TO COUN- SEL AND TO DUE PROCESS OF .LAW, AS GUARANTEED BY AMENDMENTS 6, 5, AND 14 TO THE U. S. CONSTITUTION. SEE STRICKLAND V WASHINGTON, 104 S.CT. 2052 {1984); MISSOURI V FRYE, 132 S.CT. 1399 (2012); LAFLER'V COOPER, 132 S.CT. 1376 (2012).
As illustrated above, Applicant's Grounds For Relief involve
ineffective assi.stance of counsel claims. Applicant would argue to
this Honorable Court, that when a convicting court is faced with
ineffective assistance of counsel claims, this Court of Criminal
Appeals requires the convicting court to either hold an evidentiary
hearing, or, order the attorney to respond to the allegations set Page 4.
forth in the habeas application. Cf., Ex parte Campos, 613 s.w. 2d 745 (Tex.Crim.App.l98l).
Applicant would point out that this Court of Criminal Appeals
has consistently held that when the trial court fails to designate
the issues to be resolved. in ineffective assistance of counsel cases
that they will remand for further proceedings. See e.g., Ex parte
Tate, 2006 WL 1173515 (''Remand was required for factual findings,
in proceedings on application for writ of habeas corpus, where dis-
trict court entered no findings of fact or conclusions of law, and
applicant's allegation. of facts underlying his claim of ineffective
assistance of counsel potentially entitled him to relief should
allegations be true"); See also Ex parte Manning, 2006 WL 1173174
("Remand was required for additional factual findings, in proceed-
ings on application for writ of habeas corpus, where applicant al-
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DONALD JAY PRUITT TDCJ~CID# 1057730 WILLIAM CLEMENTS UNIT 9601 SPUR 591 AMARILLO, TEXAS 79107
ABEL ACOSTA, CLERK COURT OF CRIMINAL APPEALS OF TEXAS P.O. BOX 12308, CAPITOL STATION RECEIVED IN AUSTIN, TEXAS COURT OF CRIMINAL APPEALS 78711 fVIAR 0 6 2015
RE: WRIT No._tJf<.·- ss; J'/3-Q3, EX PART~ DONALO JAY PR~lfl!~JrAf;ostagCUertk FtL1NG OF MOTION.
Dear Honorable Clerk: '. :. Plea~e: f i~d~- ~~clbs~d i m~ ·,-- ;; MbTIO~ .-REQUESTING'. COURT cir- -~rurV!iNAL
APPEALS TO ORDER TRIAL COURT TO DESTGNATE ISSUES TO BE RESOLVED
AND PREPARE PROPER~FINDINGS.OF:FACT~AND, CONCLUSIONS OF LAW RE-
GARDING APPLICANT~S WRIT OF HABEAS CORPUS PURSUANT TO THE PRO-
VIS!ONS,.OF § 11.07."
Would you please see to.~it that this Motion gets attached to
my habeas application for presentation to the Honorable Justices.
I thank you in advance in this
very important matter.
Sincerely yours,
~mt//r)#-~ Donal~ay Pruitt
Pro Se Representation WRIT NO. t-Jl.-£5;:J~t3-Q3
EX PARTE § IN THE COURT OF
§ CRIMINAL APPEALS
DONALD JAY PRUITT § AT AUSTIN, ,TEXAS
*****************************************************************
MOTION REQUESTING COURT OF CRIMINAL APPEALS-TO ORDER TRIAL
COURT TO DESIGNATE ISSUES TO BE RESOLVED AND PREPARE PROPER
FINDINGS OF FACTS AND CONCLUSIONS OF LAW REGARDING APPLICANT'S
WRIT OF HABEAS CORPUS PURSUANT TO THE PROVISIONS OF § 11.07
*****************************************************************
TO THE HONORABLE JUSTICES OF THE COURT OF CRIMINAL APPEALS:
COMES NOW, Donald Jay Pruitt, Applicant, pro se, and respect-
fully moves this Honorable Court to set aside the Clerk's Record
that has been fowarded to this Court, pursuant to Texas Code of
Criminal Procedure, Article 11~07, for failure to comply with Sec-
tion 3.(c) governing 11.07 proceedings.
Section 3(c) governing § 11.07 procee~ings provides:
Within 20 days of the expiration of the time in which the state is allowed to answer, it shall be the duty of the con- victing court to decide whether there are controverted, pre- viously unresolved facts material to the legality of the applicant's confinement. Confinement means confinement for any of fen s e · or any co ll ate r a 1 cons e·qu en c e res u l t i n g f rom t he conviction that is the basis of the instant habeas corpus. If the convicting court decides that there are no such issues, the clerk sh~ll immediately transmit to the Court of Criminal Appeals a copy of the application, any answers filed, and a Page 2.
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.
ARGUMENTS & AUTHORITIES
Although the trial court acted within 20 days of the expiration
of the time in which the state was allowed to answer. The trial
court in the instant habeas corpus, decided that there are no con-
troverted, previously unresolved facts material to the legality of
applicant's confinement. The trial court then orde~ed the Clerk to
transmit the entire habeas corpus record to this Court. Applicant
requests that this Honorable Court set aside the Clerk's Record in
the instant action and remand for proper findings of facts and con-
elusions of law pursuant to the provisions of § 11.07. Applicant
will show the Court as follows:
On page bne of Applicant's ''MEMORANDUM OF LAW IN SUPPORT OF
APPLICATION FOR A WRIT OF HABEAS CORPUS PURSUANT TO TEXAS CODE OF
CRIMINAL PROCEDURE 11.07." Applicant stated the following:
REQUEST FOR EVIDENTIARY HEARING & EXPANSION OF THE RECORD
Applicant has presented this Honorable Court with controverted,
previously unresolved issues of fact material to the legality of
applicant's confinement, which, if true, entitle him to relief.
''In a post-conviction collateral attack, the burden is on the
applicant to allege and prove facts which, if true, entitle him
to relief.'' Ex parte Maldonado, 688 S.W.2d 114, 116 (Tex.Crim.App.
1985); Ex parte Richardson, 70 S.W.3d 865, 870 (Tex.Crim.App.2002);
Ex parte Morrow, 952 S.W.2d 530, 534 (Tex.Crim.App.l997).
"It is the applicant's obligation to provi~e a sufficient record Page 3.
that supports his allegations with proof by a preponderance (not
beyond all reasonable doubt) of the evidence." Ex parte Chandler,
182 S.W.3d 350, 353 (Tex.Crim.App.2005).
Because the burden of proof is on the applicant and, the fact
that the Court of Criminal Appeals does not hear evidence, only
the trial court my conduct a hearing. Therefore, Applicant re-
quests this Honorable Court to conduct a live evidentiary hearing.
**********************
Applicant presented the following two Grounds For Relief in
the instant case: (These were the only Grounds in the 11.07).
GROUND ONE (VERBATIM)
APPLICANT'S COUNSEL WAS INEFFECTIVE IN FAILING TO CONDUCT A REASONABLE PRE-HEARING INVESTIGATION FOR MITIGATION EVIDENCE AND INTRODUCE SAME AT APPLICANT'S REVOCATION HEARING. THIS VIOLATED APPLICANT'S RIGHT TO COUNSEL, AS GUARANTEED BY AMENDMENTS 6 AND 14 TO THE U.S. CONSTITUTION. SEE WIGGINS V SMITH, 123 S.CT.2527 (2003); WILLIAMS V TAYLOR, 120 S~CT. 1495 (2000); STRICKLAND V WASHINGTON, 104 S.CT.2052 (1984). .
GROUND TWO (VERBATIM)
APPLICANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AND DUE PROCESS OF LAW WHEN TRIAL COUNSEL ADAM REED FAILED TO CONVEY THE STATE'S TWO PLEA .OFFERS. THIS. VIOLATED APPLICANT'S RIGHT TO COUN- SEL AND TO DUE PROCESS OF .LAW, AS GUARANTEED BY AMENDMENTS 6, 5, AND 14 TO THE U. S. CONSTITUTION. SEE STRICKLAND V WASHINGTON, 104 S.CT. 2052 {1984); MISSOURI V FRYE, 132 S.CT. 1399 (2012); LAFLER'V COOPER, 132 S.CT. 1376 (2012).
As illustrated above, Applicant's Grounds For Relief involve
ineffective assi.stance of counsel claims. Applicant would argue to
this Honorable Court, that when a convicting court is faced with
ineffective assistance of counsel claims, this Court of Criminal
Appeals requires the convicting court to either hold an evidentiary
hearing, or, order the attorney to respond to the allegations set Page 4.
forth in the habeas application. Cf., Ex parte Campos, 613 s.w. 2d 745 (Tex.Crim.App.l98l).
Applicant would point out that this Court of Criminal Appeals
has consistently held that when the trial court fails to designate
the issues to be resolved. in ineffective assistance of counsel cases
that they will remand for further proceedings. See e.g., Ex parte
Tate, 2006 WL 1173515 (''Remand was required for factual findings,
in proceedings on application for writ of habeas corpus, where dis-
trict court entered no findings of fact or conclusions of law, and
applicant's allegation. of facts underlying his claim of ineffective
assistance of counsel potentially entitled him to relief should
allegations be true"); See also Ex parte Manning, 2006 WL 1173174
("Remand was required for additional factual findings, in proceed-
ings on application for writ of habeas corpus, where applicant al-
leged facts in support of his claim of ineffective assistance of
counsel which; if true could entitle him to relief").
In Applicant's 11.07, Applicant demonstrated, unquestionably,
through the affidavits requesting .that Applicant be granted cle-
mency/commutation from the District Attorney (not an assistant dis-
trict attorney) Clay L. Ballman, the trial court judge, Honorable
John LaGrone, and even the Borger Police Department Chief, Jimmy
Adams. The common denominator of the above stated, is that had
Applicant's revocation counsel investigated the case and presented
mitigation evidence, that the trial judge and district attorney
would have moved to just modify Applicant's probation. Instead,
Applicant was sentenced to 55-years, aggravated. Page 5.
Moreover, plea counsel who was initially appointed in this case
failed to convey to the Applicant that the State had made two plea
offers and therefore, Applicant was deprived of the opportunity of
accepting either offer which constitutes the requisite prejudice.
In the instant case, Applicant has presented facts that un-
deniably support his claims of ineffective assistance of counsel,
which, are true, and entitle him t6 relief.
The district .court's decision in the instant case not to find
that Applicant had presented controverted, previously unresolved
facts material to the legality of Applicant's confinement does not
comply with Section 3(c) governing 11.07 proceedings and affects
the integrity of the proceedings which requires this Honorable \ Court to set aside the Clerk's Record that has been filed with this
Court and order the trial court judge to designate issues to be re-
solved and prepare a proper findings of facts and conclusions of
law.
WHEREFORE based on the above, Applicant, Donald Jay Pruitt, urges this Honorable Court to grant this motion to set aside the Clerk's Record, and issue an order that the trial court designate issues to be resolved in compliance with Section 3(c), governing 11.07 proceedings.
Respectfully submitted on this~day of ;j?~LJ{ I 2015.
~~~ Donald J tt · Pro Se Representation