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September 16, 2015 Derrick McDaniel
' TDCJ No. 1604271
Estelle Unit
264 FM 3478
Huntsville, TX 77320
Clerk of the Court of Criminal Appeals
P.O. Box 12308
Austin, Texas 78711-2308

Re; wR-75,120-02; Trial court NO§ 2008-cR-2749-w2.

Dear Clerk:

Please find enclosed General Traverse for the purpose of filing
and attachment to its respective habeas corpus submission.

Thank you for your time & effort in this matter.

Respectfully submitted/

/ .
Derrick McDaniel

cc: file

RECENE» IN
couRT oF chMlNALAPPEALS

SEP 21 2015

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CT. cRIM; APP. No..wR-75,120-02
399TH DIsT. TR. cT. No. 2008-cR-2749-w2

EX PARTE IN THE

DERRICK MCDANIEL COURT OF CRIMINAL

¢O'N¢O'!¢O'>¢O'HM

APPLICANT APPEALS OF TEXAS

GENERAL TRAVERSE

TO THE HONORABLE JUDGES OF SAID COURT:

Comes now Derrick McDaniel, `applicant in the above styled
and numbered case to give response to the trial court&s findings
of fact and conclusions of law.

Applicant hereby enters a general denial of allegations and
misconstructions setout in' "Findings ~of Fact and Conclusions
of Law" submitted to this Court by State's 399th trial court
and criminal district attorney. Applicant maintains that his
§11.07 writ of habeas corpus submission specifically delineates
State's violations of his constitutional rights.

Though submitted May l, 2015, Applicant McDaniel received
no response to his motion for appointment of counsel to represent
him in trial court initiated proceedings of "Findings of Fact
and Conclusions of Law." As suchr much like his bench trial
proceedings, the trial court's findings of fact and conclusions
of law proceedings were conducted without a legal representative,
an appointed attorney to oversee and protect Applicant McDaniel‘s
interests and constitutional rights from further abuse.

This traverse is intended as a blanket denial of allegations

or misconstructions submitted by the State and/or trial court.
Nonetheless,v Applicant discerns a need for specific objectionary
denial regarding some, but not all, of trial.court's submission
of findings _of fact and conclusions of law in which Applicant
does not agree.. Accordingly, Applicant McDaniel applies sound
reasoning} logic, and principles of law in the following elucida-
tions:

[l.] The trial _court's "Findings of Fact" regarding habeas
corpus issues and response by defense counsel Marc LaHood were
all findings of fact from a previously submitted §11.07 habeas
corpus which nwas procedurally dismissed by this Court's clerk
for noncompliance, in accordance with Texas Rule of Appellate
Procedure 73 (see 'Writ No. WR-75,lZO-Ol). As.such, the trial
court's submitted findings of fact are irrelevant to the habeas
corpus at hand (Writ No. WR-75,120-02). The trial court's find-
ings of fact does not even attempt to address the facts or issues
of the instant habeas corpus submission.

The trial court's findings ‘of fact heavily relies on an old
affidavit submitted by Applicant's trial counsel, Marc LaHood,
in a previous findings of fact.& conclusions of law from a previ-
ous §11.07 habeas corpus submission which lacks credible merit
for reasons as follow:

(a.) The statements in the affidavit cannot be substantiated.
In fact, the instant habeas corpus contains an affidavit by
Disa Brown which refutes Marc LaHood's affidavit statement that
he spoke with her' regarding McDaniel's case (see Memorandum

Exhibit #5 pg.2).

(b.) 'Counsel's affidavit- states: "...he [Marc LaHood] did
not present the court with a confession by Applicant's twin
brother, Frederick McDaniel, for several reasons." This Court
should note:. First. Marc LaHood was vcontracturally retained
to represent Derrick McDaniel. However¢ not Marc LaHood, but
his brother Nicholas’ "Nico" LaHood (the residing Bexar County
Criminal District Attorney), whom, though not a same-law-firm
associate, bartered the plea bargain between the State & Derrick
McDaniel. Second. Marc LaHood was a "no-show" at Applicant's
bench trial. Andrew Del Cueto appeared in his stead. And, Andrew
Del Cueto did in fact present the third party confession of
Frederick McDaniel (see Memorandum Ground #1 pp. 10-18; Ground
#2 pp. 19-28). It's this severe lacking of legal representation
which brings about, in part, Applicant's assertion of ineffective
assistance\ of counsel. United States v. Cronic, 466 U.S. 648,
104 S.Ct. 2039 (1984). (see Memorandum Ground #5 pp. 38-50).

[2.] Trial court's Conclusions. of Law (No.4 pg.5) asserts
that Applicant is arguing sufficiency of the evidence in his-
habeas corpus submission at hand. Applicant disputes this asser-
tion and maintains that the issue of argument was specifically
that the state had "no evidence" to support a charge of kidnap-
ping, Applicant's Ground 1#4» merely delineates sound reasoning
as to what -constituted "no evidence" in his case. Accordingly,
an allegation of "no evidence" is cognizable on a writ of habeas
corpus because it results in a violation of due process. EX

parte Murchison, 560 S.W.Zd 654, 656 (Tex.Crim.App. 1978); Ex

parte Moffett, 542 S.W.2d 184, 186 (Tex.Crim.App. 1976). Even

when the applicant pleaded guilty, as in the case at hand, if

there is no evidence to support the conviction, relief should
be granted, the judgment vacated, and a judgment of acquittal
rendered. Ex parte Perales, 215 S.W-3d 418, 420 (Tex.Crim.App.
2007). Certainly the record is clear that McDaniel was denied

due process.

CONCLUSION

Applicant McDaniel maintains that given a fair reading his
habeas corpus & memorandum submission accurately reveals the

truth of a miscarriage of justice and wrongful conviction.

PRAYER

WHEREFORE, PREMISES CONSIDERED, Applicant McDaniel respectfully
prays that this Court grants his habeas corpus requested reversal

of conviction and remand for new trial proceedings.

Date: September 16, 2015 Respectfully submitted,

Derrick McDaniel

 

DECLARATION

I, Derrick McDaniel, TDCJ No. 1604271, being presently incar-
cerated in Texas Department of Criminal Justice--Institutional
Division, Estelle Unit, in Walker County, Texas, declare under
penalty of perjury that the foregoing is true and correct.

Date: September 16, 2015 By: f 4»»>&://?2222,¢4%//
f l

Derrick McDaniel
TDCJ No. 1604271

 

CERTIFICATE OF SERVICE

 

I, Derrick McDaniely do hereby certify that a true and correct
copy of the foregoing General Traverse was mailed with sufficient`
postage to the Criminal District Attorney, Bexar County, Paul
Elizondo Tower, 101 W. Nueva, 7th.Fl., San Antonio, Texas, 78205.

Date: September 16, 2015 BY; /E;,¢»4é/Hé::lb/»$/d

Derrick McDaniel
TDCJ No. 1604271
Estelle Unit

264 FM 3478
Huntsville, TX 77320

 

