-\7)\/102`(§{

Mckinley Dale Thomas
TDCJ-ID# 1484717

Allen B. Polunsky Unit`
3872 FM 350 South
Livingston,Texas 77351

March 3Rd,2015

RE: Ex Parte Thomas,

Trial court writ # 1063339-A; HECEW@ _ §N

Texas Court Of Criminal Appeals, @OUHTOFCHWMNRLHWW§WS
Mandamus ert# WR, 13, 702-08 MAR102015

 

 

 

 

 

Abel Acosta, Clerk AWAUS?@,CH@W

Texas Court Of Criminal Appeals
P.O. BOx 12308, Capitol Station
Austin, Texas 78711

Dear Clerk:

Please be advised, that on or about February 3rd,2015, The
Harris County Clerk [Chris Daniel], forwarded to The Texas
Court Of Criminal Appeals, the habeas corpus records from the
above numbered cause of action, entitled: EX PARTE, MCKINLEY
DALE THOMAS, In Cause Number #1063389¢A.

Therefore, herein enclosed, you will please find a true and
correct copy [ORIGINAL] of the following:

1] Applicant's Written Objections To The
Evidentiary Court's Findings Of Facts
And Conclusion Of Law[UN-Supported] By
The Official Trial Court Records/ With
Request For 'REMAND' Of These Habeas
Proceedings For An evidentiary Hearing
And Appointment Of Habeas Counsel;

2] Certificate Of Service.

Would you please be so kind as to notify me when you received
the above records, pleading and motions and date they were pre-
sented to The Texas Court Of Criminal Appeals.

l'm trusting that the above information will prove helpful to
your Clerk's Office assisting me in this matter, and here's
thanking you in advance.

w BEST REQ§§?S,

c .

z / 0 AE;
§§ZT£YE;€§Qi€/Thé$gs

mdt/MDT
cc:FILES

ENCLOSURE: WRITTEN OBJECTIONS OF APPLICANT.

IN THE`
TEXAS COURT OF CRIMINAL APPEALS
AUSTIN - TEXAS

wRIT No.
EX PARTE; HABEAS coRPUS-PROCEEDINGS FRoM
MCKINLEY DALE THOMAS, THE 185TH JUDICIAL cRIMINAL
APPLICANT. DISTRICT coURT oF

HARRIS coUNTY, TEXAS
TRIAL coURT wRIT #1063389-A

¢/.`/></.`/K/.`/> ¢MU'./N»MV.'/NMW>

"APPLICANT'S WRITTEN OBJECTIONS TO THE EVIDENTIARY
COURT'S FINDINGS OF FACTS1 AND CONCLUSION OF LAW
AS NOT BEING SUPPORTED BY THE OFFICIAL TRIAL/HABEAS
CORPUS RECORDS/WITH REQUEST FOR "REMAND" FOR AN
EVIDENTIARY HEARING AND APPOINTMENT OF HABEAS COUNSEL

 

 

 

 

TO'HH§H©NORABLE.RHHICES'HIRIHETHDU§ GOURI(E`CRIMDWH.APPEALS:

Now comes, Mckinley Dale Thomas, hereafter referred to as the,
Applicant, who is appearing before this Honorable Court Of Criminal
Appeals in a pro-se capacity without the aid or assistance of hab-
eas counsel, and herebyas now submits and presents to The Court,
'Applicantis Written Objections To The Evidentiary Courtis [Unsupp-
orted- Record] Findings Of Facts, And Conclusion Of Law; Therefore,
Applicant herein, request that these habeas proceedings will be
'Remandedi [And/Or Placed In Abeyance] Back to the Evidentiary
Court with instructions, for the Evidentiary Court to appoint App-
licant habeas counsel; And with iOrders'~that The Evidentiary Court
to hold-conduct a 'Full-Blown' evidentiary hearing held in this
Applicant's presence; And in support thereof{ Applicant offers the

following reasons to-wit:

I.
lt is presently the applicable rule of law, which holds, that
habeas corpus review is available to review jurdictional defects,
or the denial of ffundamental or Constitutionali rights. See:

Ex Parte Tovar, 901 s.w.zd 485 [Tex.crim.App.lQQ§].

The State [Respondent-Judge And The District Attorney For
Harris County, Texas], seeks to deny and deprive this Applicant
Of the enjoyment of his constitutional right to habeas corpus re-
View and/or relief by seeking The Justices For The Texas Court
Of Criminal Appeals to lsubstitutel this Applicant's right to ha-
beas corpus review 'Imputed: to Applicant filing Motion-For -New-
Trial [February lst,2008],in cause #1063389-A, as Respondents'
reasons why The Texas Court Of Criminal Appeals should 'Rejectj
Applicant's habeas corpus application as a Successive Writ App;
lication without directly saying so; And this Applicant argues
the following reasons why Respondents: recommendations should be
"REJECTED" by this Court Of Criminal appeals based upon the foll-

owing findings and objections of this Applicant.

Il.
APPLICANT'S FINDINGS OF FACTS AND

 

CONCLUSION OF LAW/ WITH OBJECTIONS

 

This Applicant hereby, enters and submits to The Court his
iwritten Findings Of Facts/ With Objections' supported by the off-
icial trial/habeas records regarding The Evidentiary Court judge's
'1ate-filedi findings of facts, and conclusion of law, which has
recommended denial of this Applicant's habeas corpus application

filed in The Court of conviction [185Th Criminal District Court,
_2_

Of Harris County, Texas], on or about August 27Th,2011; Thus, The
Respondents' regarding this Applicant's filed habeas corpus writ
application has fRecommended: to The Justices Of The Texas Court

Of Criminal Appeals, that habeas corpus review and relief would be
denied to this Applicant based upon The Evidentiary Court's ferr-
Onerous- findingsi that Applicant's habeas -claims has already once
previously been lreviewed, answered and rejectedf by the convicting
court as having been previously raised by the Applicant in a Pro~
Se Motion-For-New-Trial filed by Applicant on February lst,2008,

and denied by the convicting court judge on November 10Th,2009.

[a] APPLICANT'S FINDINGS AND OBJECTIONS:

\

The Applicant in response to Respondents [The Evidentiary Court]
assertions, does admits, and the official trial/habeas records supp-
orts Respondent's assertions, that The Applicant acting without the
appointment or assistance of trial/appellate appeal counsel after
his January 17Th,2008, felony conviction for murder, did on or about
February lst,2008, filed a Pro-Se YMotion-For#New-Trialj with a re-
quest for appointment of habeas counsel, including request for new-
trial hearing to be held in this Applicant's presence; The Applic-
ant's pro-se Motion For New Trial was received by The Harris County
District Clerk [Chris Daniel], and forwarded and received by the
185Th District Court judge, The Honorable Susan B. Brown on Febru-

'ary 6Th,2008, and on March 15Th,2008, denied without hearing.

Subsequently, this Applicant's Court-Appointed Appellate-Appeal
Attorney [Jimmy Phillips, Jr], argured on this Applicant's [D]irect

appeal to The Fourteenth Court Of Appeals, that the convicting court
_3_

judge had ferred: in denying Applicant's ProSSe Motion-For -New-
Trial [Adopted By Applicant's Appellate Counsel] without a hearing,
by counsel on appeal arguring, that because the claims-allegations
raised in Applicant's Motion Requesting A New-Trial were not det-
erminable from the official trial/appellate court records- that a

hearing on the motion was mandatorily-required.

The official trial/appellate records of Applicant's pro-se
motion requesting a new trial, or new trial hearing alleged and

raised the following fFundamental Or Constitutional violations:

1a Judicial Abuse Of Discretion;

2] Retired Visiting Court Jud e Exceeding Assignment
Order- Dismissed Applicant s First [Hung Jury];

_3] Judicial Misconduct;

4] Double Jeopardy Violations;

5] Conviction Of lncompetent Person;

6] Prosecutorial Misconduct- Brady Violations; And

7] Ineffective-Assistance Of Counseling.`

Consequently, The Justices of The Fourteenth Court Of Appeals
[Houston,Texas], in agreeding with this Applicant's arguments on
appeal- concluded on May 28Th,2009, that The Convicting Court judge
had lErredf in denying Applicant's Pro-se Motion Requesting a New-
Trial or new trial hearing by The Justices finding, that Applicant
in his fMotion For New-Trial: had raised issues which were not det-
erminable from the official trial/appellate court records; Thus, The

Fourteenth Court Of Appeals placed Applicant's appeal in Abeyance,
and remanded these proceedings back to The Convicting Court with

_4_

instructions for The Convicting Court to hold-conduct hearing on
Applicant's Pro-Se iMotion-For-New-Triall See: Thomas V. State, 286

S.W. 3d 109[TeX.App.-Hou. 14Th Dist. 2009].

The 185Th Convicting Court judge[The Honorable Susan B. Brown],
after remand of these proceedings without providing and/or giving
this Applicant any chance or opportunity to formally-object, if any,
to The Court's fun-written ordersi conveyed to this Applicant by his
Court-Appointed Appellate appeal Attorney Jimmy Phillips, Jr., that
The Court would be holding and/or conducting hearing on Applicant's
Pro-Se Motion-For-New-Trial in Applicant's absence, and by affida-
vit [Only] from Applicant's former Court-Appointed trial Attorney
[Randal Ayers]; Furthermore, the Applicant's then Court-Appointed
Appellate-Appeal Attorney [Jimmy Phillips, Jr], would also inform
this Applicant that Judge Susan B. Brown, had also ordered [Un-Wr-
itten], that Applicant was to not be "Bench-Warranted" back from
prison to attend the [Affidavit] hearing open court on Applicant's

Pro-Se Motion-For-New-Trial.

The Official Appellate Court records in this case, shows this
Applicant in a Pro-Se Petition For Discretionary Review voicing his
Objections, as well as Applicant voicing his objections in'a Pro-Se
Recusal Motion, including Applicant voicing his objections in his
Pro-Se Habeas Corpus Application, and objecting in a Petition For
Writ Of Mandamus [Argured To The Texas Court Of Criminal Appeals],
that the decision of The Convicting Court judge in holding and/or
conducting hearing on Applicant's 'Pro-Sef Motion-For-New-Trial
by affidavit in Applicant's absence was a result of The Honorable

_5_

Susan B. Brown, 185Th District Court judge, apparently acting-out
of anger and fRetalitationf against this Applicant, due in-part

of the Applicant's Court-Appointed Appeal Attorney Jimmy Phillips,
Jr., also arguring in a separate motion on appeal to The Fourteenth
Court Of Appeals iConflict-Of-Interest' existing between appellate
counsel and the Convicting Court judge- which conflict prevented
appellate counsel from iEthicallyi representing this Applicant be-
cause the Conflict-Of-Interest between appellate counsel and the
trial court judge had caused a breakdown in communication between

Applicant and appellate counsels

l The Conflict-Of-Interestf allegations raised by appellate coun-
sel centered around and/or was based upon appellate counsel and the
convicting court judge allegedly involved and/or carrying on a Se-
cretive Romantic-Love Affair although appellate counsel and the co-
nvicting court judge were married to someone else; Furthermore, this
Applicant's appellate counsel fcandidlyi admitted such Conflict-Of-
Interest allegations during Court Of Appeals Ordered Hearing on this
Conflict Of Interest issue[See: Appeal Hearing Records, Dated: Se-

pcember 23rd,2009; RR. VoL.I.,p. 3-THRU-12].

Therefore, the willful action of The Convicting Court judge in
excluding this Applicant from his Fourteenth Court Of Appeals ord-
ered hearing on his Pro-Se Motion-For-New-Trial- was intentionally
conducted in the manner that it was, with the assistance with an
attorney having a conflict of interest whom worked together behind
the scenes in deciding which claims-allegations initially raised by
this Applicant in his Pro-Se Motion-For-New-Trial that Applicant's
court-appointed trial counsel would be ordered to address by affi-

_6_

davit in this Applicant's ilnvoluntary-Absence'; Furthermore, this
Applicant argues, that it was not until Applicant was served with
Respondent's April 10Th,2013, response to Applicant's August 27Th,
2011, habeas corpus application was the Applicant served a copy of
his former Court-Appointed trial counsel's 0ctober 28Th,2009, aff-
idavit in response to Applicant's Pro-Se Motion For New Trialkfiled
on February lst,2008, by this Applicant; And equally as well, the
Applicant on April 10Th,2013, also for the first time received a

copy of The trial court's ifindings of facts, and conclusion of law
'on motion for new trial[Dated: November 10Th,2009- Marked As Stateis

Exhibit VAF And "B"][Respectively].

Nevertheless, it was Applicant's former trial counseljs affidavit
[DATED; ocTOBER 28TH,2009], toupled with the trial tourt'S findings
of facts, and conclusion of law on motion for new trial[DATED: NO-
VEMBER 28Th,2009], which process is now being utilized by Responde¥

nts'

in fRecommending' to The Texas Court Of Criminal Appeals, that

habeas corpus ireviewi and ireliefi should be denied to this Appli-

cant not based upon Applicant's habeas corpus claim-allegations, but
based upon those claims-allegations of jineffectiVe-assistance of

counsel claims and allegations raised by this Applicant in his Pro-

se Motion-For-New-Trial filed by Applicant some seven[7] years ago.

This Applicant within his August 27Th,2011, habeas corpus app-
lication has raised jsome-seriousi record claims of constitutional
proposition, including raising isome-serious' fundamental due process
violations committed by Applicant's trial/appellate attorneys, and

by the Respondents'; However, much unlike those claims raised by

Applicant in his pro-se motion-for-new-trial, which claims were

_7_

un-supported by any [Verbatim] record recital where The Court

could locate errors raised by Applicant because the trial/appell-
ate records were not transcribed during period of time that the
Applicant first filed his Pro-Se Motion-For-New-Trial on Febru-
ary lSt,2008, as only fifteen[l§] days had elapsed from the time
Applicant was found guilty by a jury and sentenced on January 18Th,
2008, to February 15t,2008, when pro-se motion for new trial was

filed with The Convicting Court.

Ill.

MOTION FOR NEW TRIAL-MANDATORY LAW

THE LAW:

The Applicant in his Written-Objections in support of his re-
quest for Remand of these habeas proceedings back to The Convict-
ing Court for an evidentiary hearing to be held in this Applicant's
presence, argues that there exist ample case law authority in su-
pport of Applicant's position which is that a iFull-Blowni [LIVE]
evidentiary hearing on Applicant's Pro-Se Motion-For- New-Trial
was Mandatorily-Required when motion for new trial raises matters
which are not determinable from the official trial court records;
And Applicant in support of his Legal Position directs this Court's
attention to the following line of cases, which all holds, that
an evidentiary hearing on Applicant's Motion-For-New-Trial was
Mandatorily Required. SE: Butler V. State, 6 S.W.3d 636(Tex.App.-
Hou. lst Dist. 1995)]; Clarke V. State, 233 S.W.3d 574 (TEX. App.-
Hou. 14Th Dist. 2007)]; Reyes V. State, 849 S.W. 2d 812 (Tex.Crim.
App. 1993)]; Stogiera V. State, 191 S.W.3d 194(Tex.App.-San Anto-

 

_3_

nio 2005)]; Furthermore, the language spoken by The Fourteenth
Court Of Appeals [ABATEMENT ORDERS][DATED: MAY 28Th,2009], leads
credence to this Applicant's legal position, that a 'Full-Blown'
[LlVE] evidentiary hearing on this Applicant's "PRO-SE" fMotion-
For-New-Trial was mandatorily ordered by The Fourteenth Court Of
Appeals- due to that court of appeals finding that Applicant's
Pro-Se Motion-ForeNew-trial raised reasonable-grounds for relief,
that were not determinable from the records. Id. Thomas V. State,
286 s.w.3d 109(Tex.App.-Hou.`14rh Dist. 2009); Thus, The Four~
teenth Court Of Appeals concluded...that Applicant was 'Entitledi
to a hearing on his Motion-For-New-Trial[SE& Fourtheenth Court

Of Appeals', Slip Opinion, at p. 8-Thru-11].

,HAdditionally, this Applicant argues, that The Fourteenth Court
Of Appeals, Specifically Ordered the trial court to conduct/hold
a hearing on the Motion-For-New-trial... and that it was 'Appli-
cantfs responsibility to request a hearing date from the trial
court...and to schedule a hearing in iCompliancei with The Court
Of Appealsi ORDER[SHRFourteenth Court Of Appealsl, Slip Opinion,

at p. 11].

Also,pursuant to The Fourteenth Court Of Appealsf[ABATEMENT-
ORDERS], an Appeal Court hearing in this case was held by the
convicting court judge [The Honorable Susan B. Brown], on Septe-
mber 23rd,2009, [VIA VIDEO-TELECONFERENCE], in cause #1063389-A
[RR.VOL.I.p. 7-THRU-11], whereas, it was during this hearing
where The Convicting Court Judge [Susan B. Brown], deliberately

mislead the Applicant [On Record], into believing, that the judge

_9_

as the convicting court had been 'ORDERED' to perform by The
Fourteenth Court Of Appealsf, was going to hold-conduct a fFull-
Blowni [Live] evidentiary hearing in this case- where Applicant
would be allowed to subpoena-witnesses to testify at such hear-
ing, where in acutuality, the convicting court judge had no real
intention of granting Applicant any 'Full-Blowni [Live] eviden-
tiary hearing due to the convicting court judge harboring bias
and prejudice feelings toward this Applicant by the judge acting
out of fretailation against this Applicant based upon Applicant's
claims and/or allegations, that Applicant's Court-Appointed App-
eal Attorney [Jimmy Phillips, Jr], and The Convicting Court Judge
[The Honorable, Susan B. Brown], were carrying on, or engaged in
a SecretiVe-romantic-sexual love affair with each other while
both had children and were married to someone else- as the con-
victing court judge turned The Hearing into a Conflict-Of-inter-
est hearing regarding motion filed by appellate counsel bringing

such conflict-of-interest to the forefront.

Therefore, based upon the above and foregoing arguments, the
Applicant now argues, that it was really never the intentions of
the convicting court judge, in the first place to hold and/or to
grant this Applicant any fFull-Blown' [Live] evidentiary hearing,
although such decision was no longer within the sound-discretion,
of the convicting court judge-whose discretion whether or not to
hold and/or grant such a hearing was taken out of the :equation',
when The Fourteenth Court Of Appealsj stepped-in ordering the
convicting court to hold-conduct hearing on Applicant's iPro-se'

Motion!For-New-Trial; Because while Applicant 'reluctantlyf does

agree, that 'normally' whether or not to hold and/or conduct new
_10_

trial(s), or hold new trial hearings 'generallyf does lies within
the iSound-Discretion' of the convicting court; However, whatever
discretion and/or say-so in this matter was previously abused by
the convicting court as found by The Fourteenth Court Of Appealsf,
whom had to iAbatei these proceedings- remanding this cause back
to The Convicting Court with instructions-orders to hold-conduct
hearing on Applicant's Pro-Se Motion-For-New-Trial. ID. Thomas-

V. State, 286 S.W.3d, at p. 109; See Also, Bjorgard V. State, 220

 

S.Wr3d 555(Tex.App. 2007); Wallace V§ State, 106 S.W.3d 103, 108

(Tex.Crim.App. 2003).

The Applicant argues, that once The Fourteenth Court Of Appeals_
found that the convicting court erred in denying Applicant's Pro-
Se motion for new trial without a hearing due to Applicant raising
issues which were not determinable from the official trial court
records, then an evidentiary hearing was mandatorily-required, and
Several court of appeals' have ruled, that a convicting court ab-
uses.itsf discretion when»it holds and/or conduct new trial hear-
ings by affidavits See: Morse V. State, 29 S.W.3d 640(Tex.App.-
Beaumont 2000); Kincard V. State, 500 S.W.2d 487, 489(Tex.Crim.
App. 1973); Therefore, Applicant hereby claims, that the actions
of the convicting court judge holding new-trial hearing in this
case by affidavit rendered the process inadequate and/or non-
operable nor constitutional fit for any purpose or use as sought
by;Respondents' in their April 10Th,2013, response to this App-

licant's August 27Th,2011, habeas corpus claims-allegations.

_]_]__

Most recently The United States Supreme Court, in Trevino V.-
Thaier, 569 U.s. 1(2013), has held that a 'Post-conviction writ
proceeding, rather than a iMotion-For-New-trialf is the preferred
method for gathering the facts necessary to substantiate an ineff-
ective-assistance of trial counsel claim. See Also, Mata V. State,
226 S.W.3d 425, 430, N.lh(Tex.Crim.App. 2007); Furthermore, the
Applicant in line with Trevino, has argured within his 'Written-
Objectionsi in support of 'Remand' of these habeas proceedings
back to The Convicting Court- with instructions for that court to
hold-conduct a 'Full-Blown' [Live] evidentiary hearing held in
Applicant's presence as a result of the ftypei of hearing held
On the Motion-For-New-trial held in this Applicant's absence made
that procedure inadequate for developing the records on Applicantis
lclaims of ineffective-assistance of counsel thus rendering -sig-
nificant unfairness to this applicant when Applicant was willfully
excluded from hearing on his pro-se motion for new trial causing
the denial and deprivation of providing Applicant any chance or
opportunity to 'subpoena-witnesses[Expansion Of The Records] to
attend his hearing on motion for new trial; Furthermore, the
facts of this case illustrates, that the Applicant was intention-
ally denied and deprived of any opportunity to face his 'Adverse-
Witness [Former Trial Counsel], and nor was Applicant provided any
opportunity to iceross-examine' adverse-witness[Former Trial Co-
unsel], who testified by affidavit denying Applicant's allegations
that counsel trial representation was finadequate, deficient and

incompetent'.

_12_

This Applicant is fully aware of the fact, that The Texas
Court Of Criminal Appeals' has failed to fformulatej any Per-
se rule, holding that a trial court 'Musti hear live testimony
whether there's a factual-dispute in affidavits. See: Holden -
V. State, 201 S.W.3d 761, 762(Tex.Crim.App. 2006)(Which Case
Held, that it is not 'Always' error when a trial court decides
a Motion-For-New-trial on the basis of affidavits on claims of
jineffective-assistance' of counsel); However, aside from the
above prescribed rule of law, as previously discussed by this
Applicant, who has argured, that The Fourteenth Court Of Appealsi
in this case had iOrderedj the convicting court judge to hold-
conduct hearing on this Applicant's [Pro-Se] Motion-For-New-
Trial due to Applicant among-other-things arguring ineffective-
assistance of counsel, Double Jeopardy violations, Judicial
Misconduct, Prosecutorial Misconduct and §£ady violations; Thus,
the Applicant had not been given any opportunity to formally
lodge his objections to the convicting court iOrdering' new-
trial hearing in this case to be held by affidavit in Applicant's
absence...Specifically because the convicting court judge hadn't
entered any lWritten-Orders: for Applicant to object too the
court then holding new trial hearing[By Affidavit] from Appli-

cant's former trial counsel-

ln a case directly similar on point with Applicant's argument,
is the case of Kincard V§ State, 500_SrW.2d 487(Tex.Crim.App.l973),

relied upon by this Applicant, as well as the reported case of,

 

Klapesky V. State, 256 S.W.3d 442(Tex.App.-Austin 2008), which

both of those defendants had argured on their appeals, that their

_13_

involuntarily-exclusion[Absence] from their -New Trial hearings
violated their valuable rights to be physically present in the
courtroom during a critical-stage of the proceedings against them;
When The Texas Court Of Criminal Appeals, and The Austin Court Of

Appeals addressed those contentions raised in Kincard and in Kla-

 

p§§ky; The Texas Court Of Criminal Appeals' in Kincard, held that
a Motion-For-New-trial hearing was a critical-stage of the proc-
eeding, and that Kincard's right to be present during hearing on
motion for new trial is 'Triggeredf when the proceedings in ques-
tion bears a substantial relationship to the opportunity to defend
[where Defendantis Presence Would Contribute To the Fairness Of

The Process]; [See Also, Kentucky V. Stincer, 482 U.S. 730, 107

 

S.ct. 2658, 96 L.ED.zd 631(1987)]; [United states v. Boyd, 131

 

F. 3d 951 (11Th Cir. 1997)]; However, The Austin Court Of Appeals'
reaching a different result by finding, that although Klapesky
did file objections in the convicting court concerning the court
holding and/or conducting hearing on motion for new trial by aff-
idavit[ONLY] in Klapesky's absence, including Klapesky arguring

on appeal, that the convicting court ierredi in holding his mot-
ion for new trial hearing by affidavit- The austin Court Of App-
eals' held, that Klapesky's motion for new trial 'Did' raise ma-
tters[Ineffective-Assistance- Of Counsel] claims which were not
'Determinablei from the official trial/appellate court records;
And The Court Of Appeals' in Klapesky found, that Klapesky would
iordinary' be entitled to develope the records on his ineffective-
assistance of counsel claims; However, The austin Court Of Appeals'
in ruling against Klapesky, found that since Klapesky's motion

for new trial fwasn't' properly verified nor contained an 'inmate'

_14_

affidavit, that the convicting court did not err' by holding

or conducting hearing on Klapesky's motion for new trial in Kla-

 

pesky's absence by affidavits; Thus; The austin Court Of Appeals'
never reached Klapesky's primary legal contention raised on his
appeal, which contention was that Texas Rules Of Appellate Pro-
cedure, Rule 21.7, did not authorize nor give his convicting co-
urt judge the authority to hold motion for new trial(s) itself by
affidavits- that is because 'Typically', Texas Rules Of Appellate
Procedure, Rule 21.7, does allow and/or provide that testimonial-
evidence to be given during hearings on motion for new trial(s);
However, this Applicant similarily argues like Klapesky, that the
language of Texas Rules Of Appellate Procedure, Rule 21.7, does
not imply nor suggest any language that convicting courts' 'May'
hold the actual-hearing on motions for new trials by affidavits
in convicted defendant's absence- especially when issues raised
in motion for new trial aren't -iDeterminable' from the official
trial/appellate court records; Furthermore, in this case, The
Fourteenth Court Of Appeals' on Thomas initial [First] appeal,

had 'Already' ruled and determined, that Thomasi Pro-Se motion

for new trial raised certain issues which were not 'determinable'
from the official trial/appellate court records... This Applicant
in further reliance in support of his arguments for "Remand' ci-
tes, Rivera V. State, 89 S.W.3d 55(Tex.Crim.App. 2002); Scaggs-

V. State, 18 S.W.3d 277 (Tex.App.-Austin 2000), which cases stands
for the legal proposition, that hearing on motion for new trial

is Mandatory when motion raises issues not determinable from the

official trial court records.

_15_

Additionally, this Applicant [Mckinley Dale_Thomas], argues,
that he unlike Klapesky, had timely and properly-correctly filed
a 'verified' Motion-For-New-Trial- which motion was supported by
a iSworn-Inmate Affidavit'; Furthermore, Applicant herein argues,
that neither has The Convicting Court nor The Texas Court Of Cri-
minal Appeals' had found nor listed any notice- defectsj that would

inullf or ivoidi this Applicant's Pro-Se Motion-For-New-Trial.

lV.

MANDAMUS REDRESS IN THIS CASE:

 

The records reflects, that after this Applicant had concluded
The State's Appellate procedure, including concluding Discretion-
ary Review process without much success found this Applicant ava-
iling himself of this Statefs Post-Conviction collateral process
by this Applicant on or about August 27Th,2011, filing his habeas
corpus application with The Harris County District Clerk§s Office
[With lnstructions Such Habeas Corpus Application Was To Be Served
Upon The Convicting Court And The Harris County District Attorney's
Office], pursuant to Texas Code Of Criminal Procedure, Article
11.07; Also included within Applicant's habeas corpus filing, the
Applicant also filed a iverfiedi Motion-For-Recusal pursuant to
Texas Civil Practice And Remedy Code, Rules 18a and 18b, calling
upon the convicting court judge [The Honorable Susan B. Brown] to
be recused based upon the judge's 'conflict-of-interest' with the
Applicant's Court-Appointed appellate-appeal attorney [Jimmy Phil-

lips, Jr].

This A licant's habeas corpus application after bein served
PP g

upon The State [Respondent], and The Convicting Court Judge[Res-
_16_

pondent-Judge], layed 'inactive-languishingf in The Convicting
Court for some nineteen[19] months without any resolution regard-
ing the habeas corpus application filed by this Applicant nor had
there been any resolution regarding the recusal motion filed by
this Applicant when he filed his habeas corpus application with

The Convicting Court.

Although there had been no resolution regarding the recusal
motion filed by this Applicant- Nonetheless, The Convicting Court
judge on September 21st,2011, designated certain of Applicant's
habeas issues in violation of the statute language of Texas Civil

Practice & Remedy Code, Rules 18a[c] and [d].

Therebyas, The Convicting Court Judge's designation of the hab-
eas issues in spite of Recusal Motion filed and pending resolution,
including the fact of this Applicant's habeas corpus application
laying 'dormant: for some inineteen[19] months, caused this Appli-
cant on March 1st,2013, into petitioning The Texas Court Of Crim-
inal Appeals for iMandamusf relief by complaining among other thi-
ngs, that more than thirty-five[35] days had elapsed since Appli-
cant his habeas corpus application in The Convicting Court, and
that there had not been entered any iValid-Order' tolling the 35-
day time limitation issued by The Convicting Court Judge- although
there had been entered an 'Orderi designating the habeas issues,

such 'Order' was invalid and of non-effect.

Nevertheless, The Texas Court Of Criminal Appeals' acting in
response to this Applicant's Petition-For-Writ-Of-Mandamus -Ordered

_17_

pondent-Judgej, layed 'inactive-languishingf in The Convicting
Court for some-nineteen[19] months without any resolution regard-
ing the habeas corpus application filed by the Applicant, includ-
ing there had not been any resolution pertaining to the Recusal
Motion filed by Applicant when filing his habeas corpus applic-

ation in The Convicting Court.

Although there hadn't been any resolution regarding the Rec-
usal Motion filed by this Applicant... 'Nonetheless', The Texas
Court Of Criminal Appeals Ordered The Respondentsj[The Honorable
Susan B. Brown And The State], on March 27Th,2013, that within
thirty[30] days of March 27Th,2013, To forward to The Texas Court
Of Criminal Appeals...Applicant's habeas corpus application, or
The Court's written statement that iNO' habeas corpus application
had been received from Applicant nor filed...or any findings of
facts & conclusions of law... and that either the habeas corpus
application and The Court's findings must be forwarded to The
Texas Court Of Criminal Appeals' within thirty[30] days of March
27Th,2013[SEE: 'IE(AS(HRI`G§`(R]MIIW.APPENS, M(RIR-MD :MAKI-I27IH,2DI3, [rkit
NL]BJULGH; And The Texas Court Of Criminal Appeals placed the
enforcement of their mandamus authority in Abeyance until Respo-

ndents complied with The Court Of Criminal Appeals 'Order'.

Howbeit, The Respondent [The State] by and through The Harris
County District Attorney's Office On April 10Th,2013, filed State's
Proposed Findings Of Facts, And Conclusion Of Law, And Order req-

uesting that The Convicting Court adopts State's proposed findings
and conclusion of law, which proposed order 'recommended' that the

_13_

Convicting Court 'Recommend' to The Texas Court Of Criminal App-
eals', that habeas corpus relief be 'Denied' to this Applicant;
This Applicant has argured in his Written-Objections & Traverse
To The Return [Dated: May lst,2013], that The State [Respondent]
findings and recommendations weren't based upon any of those ha-
beas corpus claims-allegations which had been raised by this App-

licant in his August 27Th,2011, habeas corpus application.

Nonetheless, The State[Respondent], argured that habeas cor-
pus review and relief should be 'Recommended' denied to Applicant
based upon Applicant's [Un-Supported] record-claims of ineffec-
tive-assisatance of counsel claims raised by this Applicant some
five[5] years ago that were previously raised by Applicant in his
Pro-se 'Motion-For-New-triali filed February 1st,2008, which that
Motion-For-New-Trial- The State [Respondent] and The Convicting
Court [Respondent-Judge], had opposed and which 'Motion-For-New-
Trial was decided and 'Denied' by The Convicting Court judge in
this Applicant's 'Involuntarily-Absencei on November 10Th,2009,
as such denials, including the manner in which hearing on Motion
For New Trial was held and/or conducted by The Convicting Court
judge, is the subject of this Applicant's numerous written-obje-

ctions.

The Respondentis [The State's], in their late-filed response
to this Applicant's August 27Th,2011, habeas corpus claims, if
looked at closely, are really in 'ESSENCE' is a 'repetitive' att-
empt once again by Respondent [The StateJ, in answering and/or
responding to those claims of Applicant's trial counsel's ine-

ffectiveness raised by this Applicant in his -Pro-Se 'Motion-For-

_19_

New-Trial filed by Applicant some seven[7] years-ago as of the
filing of instant filing of this request for an evidentiary hea-
ring, which Applicant's 'Motion-For-New-Trial' claims-allegations
were not supported by any recital nor reference to the official
trial court records; And despite of such failures, The State la-
cking any other defense to Applicant's habeas corpus claims -all-
egations 'Erronerouslyi asserts, as if arguring for The Texas
Court Of Criminal Appeals' to'Applyi a Texas Code Of Criminal
Procedure, Article 11.07, § 4[a], Successive Writ Petition Bar
against this Applicant by State arguring, that since a 'Vast'
majority of the Applicant's ineffective-assistance of trial co-
unsel claims had 'ALREADY' [Once] previously been reviewed, add-
ressed and rejected- that Applicant's fhabeas claims' are 'With-
Out' merits, and therefore, should be denied [SEE: State-Responde-

nt's Original Answer- Dated: April 10Th,2013, at p. 2].

The Applicant, in response to The Statejs [Respondent's] ass-
ertions, that Applicant's ineffective-assistance of counsel claims
has already been reviewed, addressed and rejected via Applicant's
'Motion-For-New-Trial hearing held-conducted by The Convicting
Court [Respondent-Judge], the Applicant in opposition, that The
State [Respondent], had not been fact-specific nor clear precisely
as to which claims of ineffective-assistance of counsel had been
previously raised by Applicant in a Pro-Se Motion-For-New-Trial '
which had been litigated and controverted by Applicantjs former
trial counsel's sworn-affidavit presented to The Court on 0ctober

28Th,2009.

_20_

Even Though this Applicant, otherwise wouldnit at this late-
date seek to make any 'BELATEDLY' attempts to [Continually] lodge
and/or voice his objections concerning the manner and/or way that
the convicting court held, or conducted hearing on Applicantis
Pro-Se 'Motion-For-New-trial held in this Applicant's flnvolun-
tary-Absencei; But since The Respondents' [Judge And State] att-
empts to use the results generated from that hearing on Applicant's
Pro-Se Motion For New Trial as a reason why habeas corpus review
and relief should be 'DENIEDi to this Applicant forces Applicant
to continually objecting to hearing on his motion for new trial

lacking any semi-balance of Due Process of the law,

lt is 'ONLY' some twenty-four[24] months has The Convicting
Court judge, so it appears, has 'FINALLY' complied with The Texas
Court Of Criminal Appeals March 27Th,2013, and The Texas Court Of
Criminal Appeals' Clerk's letter dated June 5Th,2013, does The
Respondent [Judge], appears to comply with the 'Mandamus Orders'
entered in this case by Respondent [Judge] on January 5Th,2015,
finally Adopting The State's [Respondent's] Proposed Findings Of
Facts, And Conclusion Of Law- which iRecommended' habeas corpus
relief be 'Deniedi this Applicant not based upon Applicant's ha-
beas claims, but that habeas relief be 'Deniedi Applicant based
upon Applicant's ineffective-assistance claims-allegations having
been revciewed, addressed and rejected previously once-before by
The Court via Applicant's -Pro-Se Motion For New Trial; And it is
Respondent's 'ERRONEROUS' assertions which causes Applicant to co-

ntinually voice his Pro-Se Objections-

-21- 4 \

V.

THE DUE PROCESS OF LAW REQUIREMENTS:

 

This Applicant herein, 'QUESTIONS' whether case law authority,
or statute law grants and/or guarantees Applicant the right of be-
ing PHYSICALLY present [Presence], in the courtroom concerning is-
ues pertaining to his 'criminal-conviction' during hearing on his
Pro-Se iMotion-For-New-Trial held in his involuntarily-absent when
the actual-results generated, or taken from that hearing at a later
date are being used to 'Deny' or 'Deprive' an accused-convicted
defendant of his fConstitutional right to habeas corpus review, or

relief.

This Applicant argues, that the case law authority and statute
law seams to support Applicant's legal contention, that Applicant
have the right under the Due Process Clause [Fifth & Fourteenth
United States Constitutional Amendments], to jNOTICE of any hear-
ing where his liberty rights, or property rights are affected;And
Applicant interpretates case law authority and statutory authority
to grant and/or guarantee this Applicant the Due Process right
to defend whenever his liberty [Freedom Rights], or property ri-_
ghts are at stake of being taken away from him; Therefore, Applic-
ant argues, that surely The Fourteenth Court Of Appeals' -when they
initially reviewed, abated and remanded these proceedings [Appli-
cant's Pro-Se Motion For New Trial] back to the convicting court,
with 'Orders'[lnstructions] for the convicting court to hold-con-
duct hearing on Motion-For-New-Trial- Then The Court Of Appeals'

,\,
r,),

must had known, that such an 'Abatement' [Instructions]'werer-`K

_22_

an 'inadequate method' for jExpanding' the records and/or develop-
ing the facts necessary in establishing Applicant's Pro-Se claims-
allegations of ineffective-assistance of counseling raised in App-
licant's [Pro-Se] Motion-For-New-Trial; Furthermore, Applicant here-
in argues, that The Fourteenth Court Of Appealsj must had known, or
must had been aware of the fact, from previous cases on appeal, that
The Convicting Court judge would not conduct, or hold any factual-
live' hearing on this Applicant's Pro-Se "Motion-For-New-Trial" as
'Only' in a few [Rare] reported cases which had been 'Remanded' for
hearings on jMotions-For-New-Trial(s) has such process actually
proven successful and/or has actually worked. See For Example:
Morales V. State, 253 S.W.3d 686(Tex.Crim.App. 2008); Robertson -

V. State, 187 S.W;3d 475 (Tex.Crim.App. 2006); Armstrong V. State,

 

Ap -75706, 2010 wi 359020(Tex.crim.App. 2010); cook v. state, 240
S.W.3d 906 (Tex.Crim.App§ 2007).

APPLICANT'S LEGAL ANALYSIS;

 

This Applicant herein, argues, that if Respondents [Judge And
The Harris County District Attorney], are allowed to continually
successfully argue, as they thus far has been allowed to do, argur-
ing for the jdeniali and/or irejections: of Applicant's habeas co-
rpus application based upon Respondent's arguments [Without Any
Authoritatively Legal Precedent In Support], that because the App-
licant 'identical' claims of ineffective-assistance of counseling
has [Already] previously been 'reviewed' and jrejected' by Respon-
dents' during hearing on Applicant's Pro-Se 'Motion-For-New-Trial
[Held In This Applicantjs Involuntary-Absence], that it is not

necessary to review and/or address those claims-allegations raised

_23_

by Applicant in his Pro-Se 'Motion-For-New-Trial' [lneffective-
Assistance Of Counseling Claims]; As this Applicant argues in
'Oppositionf, that the hearing on his Pro-Se "Motion-For-New-
Trial" is a nullity and 'void' as having no real-genuine legal
effect as the fhearingj and 'order' held and issued in Applicantls
iinvoluntary-absence [Absent] violated Applicant's rights under
The Due Process Clause- when Applicant failed to receive 'Notice'
when the new trial hearing would be held; And Equally as well,
Applicant's rights under the jDue Processf clause was violated,
when Applicant was 'denied' and ideprivedi of the opportunity to
'Defend' his Motion-For-New-Trial claims-allegations- when App-
licant's Motion-For-New-Trial hearing was held in Applicant's
absence as Applicant had the right to be 'Physically' present
when hearing on his Pro-Se 'Motion-For-New-Trial' was held. See:

Adanandus V. State, 866 S.W.Zd 210 (Tex.Crim.App. 1993).

 

Thus, this Applicant's legal arguments herein, are based on
the premise, that for well over one hundred and thirty-five [35]
years, here in The State Of Texas, well settled case law authority
and statutory authority and its' provisions have guaranteed cri-
minal defendants', such as this Applicant, the right to be 'Phy-
sically' present [Presence] in the courtroom during Motion For
New Trial hearings; And case law authority holds, that if such
Motion For New Trial hearing is heard and determined in a defen-
dant's absent [Absence], and his presence is not jwaivedj, and
he objects to not being present [Presence], reversal is required.

See: Gibson V. State, 3 CR.P. 437(1878); Berkley V. State, 4

_24_

CR.P. 122 (1878); Henderson V,/State, 127 S.W.2d 902(Tex.Crim.
App. 1939); Phillips V. State, 288 S.W.Zd 775 (Tex.Crim.App.l956).

 

Furthermore, Applicant argues, in accordance with Texas sta-
tutory law, pursuant to Texas Code Of Criminal Procedure, Arti-

cle 37.03, which statute provides in pertinent part as follows:

THat In All Prosecutions For Felonies...
Defendants Must Be Personally Presence
At Trial . n

Also, it is presently the applicable rule of law, which stands
for the 'legal-propositioni, that a 'Hearing' is formally defined
as a 'Formal-Proceedingj similar to a criminal trial proceeding.

See: Barnett V. State, 338 S.W.3d 680 (Tex.App.-Texarkana 2011);

 

Gore V. State, 338 S.W.3d 669 (Tex. App.-Eastland 2010); Gore V.-
State, 332 S.W.3d 669 (Tex.App.-Eastland 2010). See Also, Texas

Code Of Criminal Procedure, Article 33.03.

Based upon the above legal precedent and statute law in support
of same, this Applicant argues that The Respondents' knew as of
August 4,2009, and as of September 3,2009, [Letter Dated: August
4Th,2009- Attached To September 3rd,2009, Motion To Withdraw], that
this Applicant expressed and made his desire known that he wished 1
to attend hearing on his Pro-Se 'Motion For New Trialj_[See: App-
eal Hearing Records- RR. VOL. I.,p. 8-Thru-11]§ And although the
Applicant's request to represent himself was 'Deniedj by the
convicting court judge[See: Appeal Hearing Records: RR.VOL. I., p.

11]; And even though this Applicant 'Threatened' to 'Boycott' the

_25_

iHearing' on his Pro-Se 'Motion Fore-New Trial'; This Applicant's
jThreatsi of a 'Boycottj ever 'materializedi due to Respondent-
Judge's intent all alone of holding and/or conducting hearing

on Applicant's Pro-Se 'Motion-For-New-Trial' in this Applicant's
'Absence' [Absent] [Seei Appeals Court Hearing Record: RR. VOL.
I.,p. 11].

Therefore, this Applicant asserts, that the 'hearing' on his
Pro-Se 'Motion-For-New-Triali was an jadversarial'processj,where
The Convicting Court judge and The State iopposed' among other
things, Applicant's ineffective-assistance of counsel claims and
allegations that were raised by Applicant in his Pro-Se 'Motion-
For-New-Triali; Which results of that hearing[Motion For New Tr-
ial], that The Respondent-Judge and Respondent [The State] now
Seeks to utilize against this Applicant to 'deny' and 'deprive'
this Applicant his State and Federal constitutional right to ha-
beas corpus review and relief; And Therebyas) used by Respondents'
to continue this Applicant in his unlawful and illegal confine-

ment. See: Kentucky V. Stincer, 107 S.Ct. 2658 (1987); lowa V-

 

Tbvar, 124 S.Ct. 1379 (2004).

However, because The Respondents' knew that if Applicant was
given any chance or opportunity to prove and/or fully develope
his habeas corpus claims and allegations, if proven true, would
'affect' Applicant's criminal conviction; That it is 'requested'
that Respondentsj contentions and/or attempts to 'denyi and 'de-
prive' this Applicant of his right to habeas review and redress
will be irebuffed-rejected' by The Justices For The Texas Court

_26_

Of Criminal Appeals. See: United States V. Boyd, 131 F.3d 951
(11Th Cir. 1997).

Vl.

CONCEUSIONS AND PRAYERS

 

wHEREFORE, PREMISES'CONSIDERED§ THE Applicant, Mckinley Dale
Thomas, respectfully prays, that The Texas Court Of Criminal
Appeals after consideration of this 'Motion' will 'REMAND'-These
habeas proceedings back to The Convicting Court with 'Instruct-
ionsi to 'APPOINT' Applicant habeas counsel [If Applicant Is ln-
digent, Or Unless Applicant Retains Counsel], including, 'Order-
ingi The [Evidentiary] Convicting Court judge to 'conduct-hold'
a 'Full-Blown' [LIVE] evidentiary hearing on Applicant's habeas

corpus application as justice so requires.

Respectfully Submii:z§,

/VFQFZ>7Aég/gib/t /’r&vv&c§
MCKINLEY'DALE THoMAs
TDcJ-ID# 1484717

ALLEN B. PoLUNsKY UNIT
3872 FM 350 south
LIVINGSToN, TExAs 77351

_27_

Vll.
CERTIFICATE OF SERVICE
l, Mckinley Dale Thomas, hereby certify, that a true and correct
carbon copy of this pleading attached to this instrument has this
§Z§§: day of /VZHAU?“ , 2015, has been mailed by United States
Postal service, addressed To:[Chris Daniel] Harris County District

Clerk, for service upon the following:

The Hon. Susan B. Brown Baldwin Chin,

185Th Criminal District Court Judge Assistant Disttrict Attorney
1201 Franklin Harris County District atty.
Houston, Texas 77002 1201 Franklin, STe#600

Houston,Texas 77002

/V?qd@»V/?§/ ,/)QW/%zdjg
Mckinley Daie Thomas
TDCJ-ID# 1484717

Allen B. polunsky Unit
3872 FM 350 South
Livingston,Texas 77351

_28_

