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.




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       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




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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


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