..."..''>   p


                .'


                     July 8, 2015
                                                                            ~3,5~0            -())
                                                       This document contains some
                     Court of Criminal Appeals         pages thafare of poor quality
                     Clerk of Court                    at the time o~ Imaging.
                     P.O. Box 12308
                     Austin, TX 78711



                     RE:   Original Appliaation Fo.r Writ of Mandamus
                           District Clerk, Harris County, Non-compliance/T. C. C. P. 11.07



                     Dear Honorable Clerk of Court:

                          Please find enclosed: (1) Original Application for Writ of
                     Mandamus, and (2) Exhibits "A" through "E".

                          Please forward the Mandamus with attached exhibits to the
                     Court for consideration and ~ulin.g. Thank you for your kind assist~
                     ance with this matter.


                     Respectfully Submitted,
                                                                                 RECEIVED IN
                                                                           COURT OF CR!~tNAl APPEALS
                     tm~· ~-McDannel
                     TO~E.
                             f/h~                                                  JUL 13 2il15
                     TDCJ-ID #1562227
                     Wayne Scott Unit
                     6999 Retrieve Rd.
                     Angleton, TX 77515
                                     IN THE

                         COURT OF CRIMINAL APPEALS

                               AUSTIN, T Ex·A S



                            THOMAS E. McDONNEL.
                            TDCJ-ID 11562227
                            RELATOR

                                        v •

                            HARRIS COUN.TV DISTRICT CLERK
                            CHRI S DANI E L :·:
                            IN HIS OFFICLAL CAPACITY
                            RESPONDENT


                            CAUSE   NO~     1131353-B                     RECEIVED IN
                                                                  COURT OF CRIMINAL APPEALS
                          24Bth JUDICIAL COURT OF
                                                                           JUL 13 2u15
                           HARRIS COUNTY, TEXAS

                                                                      Abet Acc.st.a, Clerk
               ORLGINAL APPLICATION FOR WRIT. OF MANDAMUS

TO THE HONORABLE JUDGE .OF SAID COURT:
     ·coMES NOW, THOMAS E. McDONNEL, ·Rel·ator; pro se in the above
styled and numbered cause of action and             f~les   this Original Appli-
cation for   Wri~   of Mandamus, pursuant to Art±cle 11.07 Section
3(c) of the Texas Code of Criminal            ~rocedure     (T.C.C.P.), and would
show the Court the following:

                                       I.
     Thamas E. McDannel,     TDCJ~ID      J1562227, is an offender incar-
cerated in the Texas Department of Criminal Justice and is                    a~pear­

ing pro se, who can be located at the             Wayn~   Siott   ~nit,    Brazoria
·County, Texas 77515. Relator ha.s exhausted his. remedies and has no
other adequate remedy at law.



                                      -1-
I




           The act sought to _be compelled is                miniater~al,       not discretion-
    ary in nature. T.C.C.P. Art. 11.07, §3(c) requires Respondent to
    immediately transm.it to the Court of Criminal Appeals a copy of'.
    the   appli~ation      for writ of habeas corpus, any answers filed,                       and
    a certificate raGiting ths date upon which that finding was made,
    if the convicting court            dec~des     that thers were nd issues to be
    resolve.d.    No copy ·of the applicatimn fmr writ of habeas corpus,
    any answers filed, Bnd a certificate reciting ths date upon which
    that finding was made has·been transmi.tted to the Court of Criminal
    Appeals by Respbndent as required by                   statute~    Relator would have
    received notice fram the. Cnurt of Criminal Appeals had Respondent
    done so.
                                                  II.
           Responden:t, Chris Daniel;::, in his official capacity as Dis-
    trict Clerk of Harr.is County, Texas, has                   ~   ministerial duty to re-
    ceive and file all papers in a cr±minal proceeding, and perform
    all other duties imposed on the                cl~rk    by law pursuant to T.C.C.P.
    Art . 2 . 21 , a n d is . res pons i·b 1 e. under T . C . C . P . Art . 11 . 0 7 , § 3 ( c ) to
    immediately transm±t to the Court of Criminal Appesls a copy of
    the application for writ of habeas corpus, any answers                          filed~     and
    a certificate reciting the date upon which the finding was made if
    the convicting court decides that ·there are no issues to be re-
    solved. Chris       Daniel~,     District Clerk, Harris County mBy be served
    at his place of business at 1201 Franklin St., Houston, Texas
    77002.
                                                 III.
                       VI 0 LAT I 0 N 0 F ART I CLE 11 . 0 7 0 F T HE T EXAS
                                 CODE OF CRIMINAL PROCEDURE

           The Respondent ·violated·11.07, §3(c) of the T.C.C.P. by fail-
    ing to provide a copy nf the application far wri.t of habeas corpus,
    any answers fil.ed,        and a certificate reciting the date upon which
    that f.inding was made to the Court of                  Crimina~     Appeals within the
    tims prescribed by law and within a reasonabl8 time from the date
    on which the documents were required to be                      transmitt~d.




                                                  -2-
       Requests for the           tr~nsmittal             of the application for writ of
habeas corpus, and any             an~wsrs          filed,      and a c.ertif±cate reciting
the date upon which that finding was made were made to Chris
Daniel~;,         District Clerk, Harris County, in the following ways:
( 1 ) in the form o f a motion , . ,"5 tate s 0 r de r to Com p l.y " ,               ( Exhibit " A" )
submitted by Rel.ator on January 10, 2012;                          (2)   in the form of a
motion,           "To Compel Coinpliance 11 (Exhibit "8"), submitted by Relator
on Apr i 1 01 , 2 01 3 ;     ( 3) in the form of a motion ; "For a Live P l·e n-
ary Evidentiary Hearing" (Exhibit "C"), submitted by Relator on
October 09, 2014;           (4)   in the form of a motion,                 "To Have Previous
Motions Ruled On"           (Exhibit   11   0 11   );    and in the form of a letter dated
July 17, 2015 to Chris Daniei~ making one last requ~st for his
compliance with Art. 11.07, §3(c) and notif.ying him of Relator's
intent to file this Mandamus if Relator does not receive notice
that the Court of Criminal Appeals has received a copy of the
application for writ of h.abeas corpus·, any answers filed,                               a certi-
ficate. reciting the date upon                     wh~ch      that finding    wa~    made, and any
attachinsnts filed with rir after the filing of the application.
(Exhibit "E").
       To date, the Relator has received no response from Respondent
regarding Relator's request for transmittal of a copy of the appli-
cation for writ of habeas corpus, any answers filed,                                 and a certif-
icate reciting the date upon which that finding was made to the
Court of Criminal Appeals. Nor ·has Relator been notified of any
        ......
       [·


resolutions to the trial court's designated issues.
       As is clear from all of the Relator's motions and final let-
ter,   Relator has repeatedly put Respondent on notice that Relator
seeks the resolving of the designated issues and the transmittal
of a copy of the application for writ of habeas corpus, any answers
filed,           and a certificate reciting the date upon                    ~hich    the finding
was made'to the Court of Criminal Appeals and that such records
are required by the Court of Criminal Appeals to act on Relator's
writ of habeas corpus. Relator has gone well beyond any requirement
or obligation imposed. upon him by the T.C.C.P. In contrast to the\


                                                        -3-
Relator's efforts, Respondent has wholly faiLed to                 ~omply    with the
T.C.C.P. Article 11.07, §3(c), is acting in bad faith,                    and has
also failed to afford Relator the professional and common courtesy
of any written response to his correspondence and motions.
      Article 11.07, §3(c) clearly states that "·[i]f the convicting
court decides that there are no such issues, the                 c~erk    shall imm-
ediate.ly transmit [emphasis added] to the Court of Criminal Appeals
a copy of the application, any answers filad,                and a 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." T.C.C.P. Art. 11.07, §3(c). In this particular case, the
court did make a finding of fact.              However, i t has been almost four
(4) years since Relator has filed his original application and
approaching two (2) years since he filed the amended application.
Certainly time has passe.d for allowing the trial court to resolve
Relator's issues, and Respondent is well past due in complying
with Art. 11 .07, 13(c). Respondent .is in violation of this proce-
dure, minister.ial duties, and thus the laws of the State.
                                         IV.
                   REQUEST FOR LIVE EVIDENTIARY HEARING
      Relator has already submitted a motion for a "Live Plenary
Evidentiary Hearing" on October 09, 2014 (Exhibit "E") which the
trial court either       f~iled   to rule on or failed to provide Relator
with a copy of its ruling. Therefore, Relator is requesting this
Court either order the trial court to hold a Live Evidentiary
Hearing and finally resolve Relator's issues (the                 cou~t's    findings
of facts)    or to hold its own Live Evidentiary Hearing once the
Respondent complies with this Court's ruling anrl sends a copy of
the application, any answers filed,              and a certificate reciting the
date upon which that finding was made. The necessity for this Live
Evidentiary Hearing is great because the convicting Judge (Joan
Cam be 11) is no 1 on g e r p r·a c tic in g at the 2 48th 0 is t ric t   Court . A
new Judge, Kathrine Cabanis, is           presidi~g    and she is not familiar
with the case or the finding of facts made by the previous judge.



                                         -4-
PRAYER FOR RELIEF

      WHEREFORE, PREMISES CONSIDERED, Relator, Thomas E. McDannel,
pro se, respectfully requests a finding that the Respondent did
not transmit the documents to the Court of Crimirial Appeals within
a reasonable time after the date they werB required to,                and re-
quested to,    and that the Relator       ~rought   this litigation in good
faith and has substantially prevailed.           Relata~    prays for an ORDER
directing the Respondent to transmit a           cop,~of   the application
far writ a f habeas c o.rp us , any answers f i 1 e d , and a c e r t if i cat e
reciting the date upon hlhich that finding was made to the Court of
Criminal Appeals as      di~ected    in ArticlE 11.07 Section 3(c) of the
Texas Code of Criminal Procedure and as requested in Relator's
motions and letter previously sent to Respondent (Exhibits A
through E). Further, Relator prays this Honorable Court to make
and ORDER directing th.e trial court to hold a Live Evidentiary
Hearing if this Court simply ORDERS for the trial court to resolve
the findings of facts and issues. Or, conversely, Relator prays
this Court to hold its own Live Evidentiary Hearing once the Re-
spondent has complied with Article 11.07 Section 3(c).


                                                      Respectfully Submitted,


                                                        zL<z:,
                                                      Jhomas E. McDannel
                                                                        ~/
                                                      Re 1 at a r , pr a s e




                                        -5-
                             UNSWORN DECLARATION

       I,   Thoma~   E. McDannel,   TDCJ~ID   #1562227, presently   incarcer~

ated in the Wayne Scott Unit of the Texas Department of Criminal
Justice in Brazoria County, Texas, verify and declare under penalty
of perjury that the foregoing statements are true and correct.


       EXECUTED on this the 8th day of July, 2015.


                                                     Respectfully Submitted,


                                                     Thomas E. McDannel
                                                     TDCJ-ID #1562227
                                                     Wayne Scott Unit
                                                     6999 Retrieve Rd.
                                                     Angleton, TX 77515

                                                     Relator, pro se



                            CERTIFICATE OF SERVICE

       I hereby certify that·a true copy of the above Application
for Writ of Mandamus was       se~ved   on Chris   Daniel~   by placing a copy
in the U.S. Mail addressed to: Chris Daniel·j, Clerk of Court,
1201   Franklin St.,     Houston, Texas, 77002 on this the 8th day of
July, 2015.




                                        -6-
                                       IN THE

                         COURT OF CRIMINAL APPEALS

                                 AUSTIN, TEXAS



                             THOMAS E. McDONNEL
                             TDCJ-ID #1562227
                             RELATOR

                                          v.

                             HARRIS .C.OUNTV DISTRICT CLERK
                             C HR I S DANI E L ~:;
                             IN HIS OFFICIAL CAPACITY
                             RESPONDENT



                                       ORDER

        On this day, came to be heard the foregoing Relator's Appli-
cation for Writ of Mandamus and it appears to the Court that the
same should be:


           GRANTED


        IT IS THEREFORE ORDERED THAT the District Clerk shall immed-
iately transmit to the Court of Criminal Appeals a copy of the
application for writ of habeas corpus, any answers filed,                and a
certificate reciting the date upon which that finding was made.
And further,      a Live Evidentiary      Hear~ng      shall be conducted due to
the fact that the convicting judge is no longer present, but that
a new    ju~ge   is ncrw presiding in the 248th District Court.


        SIGNED on this the            day of
                                                     ------ '   201 5.



                                                             Presiding Judge




                                        -7-
               EXHIBIT "A"
-   Motion:   States Order to Comply -
..-
                                                   CHRIS DANIEL
                                           HARRIS COUNTY DISTRICT CLERK



      January 17, 2012

      THOMAS ELTON MCDONNEL
      # 1562227-WAYNE SCOTT UNIT
      6999 RETRIEVE RD.
      ANGLETON, TX 77515




      To Whom It May Concern:

      Pursuant to Article 11.07 ofthe Texas Code of Criminal Procedure, please find enclosed
      copies of the documents indicated below concerning the Post Conviction Writ filed in
      cause number 1131353-B in the 248TH District Court.

      D      State's Original Answer Filed

      D      Affidavit Filed

      D      Court Order Dated

      [gl Respondent's Proposed Order Designating Issues and Order For Filing Affidavit.

      D      Respondent's Proposed Findings of Fact and Order Dated

      D      Other




      Enclosure(s)- RESPONDENT'S PROPOSED ORDER DESIGNAJTNG ISSUE AND
      FOR FILING AFFIDAVIT




                      1201 FRANKLIN   •   P.O. Box 4651 • HOUSTON, TEXAS 77210-4651   • (888) 545-5577 ·

      PAGE   I OF I                                                                                 REV: 01-02-04
                                                                                          FILED
/                                                               Mr~                        Chris Daniel
                                                                                            District Clerk
                                            Cause No. 1131353.KB
                                                                                           JAN 1 0 20 2
    EX PARTE                                               §        IN THE 24~J;>ISTRI
                                                                                      ----,:;;k~~:di---
                                                        §           OF

    THOMAS ELTON MCDONNEL,                              §           HARRIS COUNTY, TEXAS
       Applicant

                       STATE'S PROPOSED ORDER DESIGNATING ISSUE
                                AND FOR FILING AFFIDAVIT

            Having considered the application for writ of habeas corpus in the above-captioned cause

    and the State's original answer, the Court finds that the issue of whether the applicant was denied

    effective assistance of counsel still needs to be resolved in the present case.

           Therefore, pursuant to Article 11.07, §3(d), this Court will resolve the above-cited issue

    and then enter findings of fact                                                   \

           To assist the Court in resolving these factual issues, counsel Mary toore is ORDERED

    to file an affidavit summarizing her actions as counsel for the applicant in the primary case,

    cause number I i31353, and specifically responding to the following:

           1. Please outline how counsel investigated the applicant's case. Wias the investigation
              limited in any way? If so, please explain why.

           2. Was counsel aware of the applicant's lack of a criminal background or prior arrest
              history? Was there anything in particuiar about the applicant's lack of criminal
              background or prior- arrest history that counsel used at trial or believes would have
              been beneficial and admissible at trial that she failed to employ at trial? If so, please
              explain why.

           3. Does counsel believe that she had a finn grasp of the facts surrounding the applicant's
              case at the time of trial? Was counsel ready for trial?

           4. Please indicate if the applicant brought any potential witnesses to the attention of
              counsel that. counsel chose not to interview. If there are any such witnesses, please
              explain why no interview was conducted.
                                                                                                      I

           5. Was counsel aware of any witnesses that would have been beneficial or necessary to
               the defense of the applicant that she failed to interview or call at trial? If so, please
               explain why.                           :


                                                       1
        6. Please indicate the nature of any grievances that the applicant filed with the State Bar
           against counsel prior to trial, and please include copies of any such grievances or
           responses to such grievances that are available.

        7. Does counsel believe that any grievances that the applicant filed with the State Bar
           affected her representation of him at trial in any way? If so, please explain how.

        8. Please indicate whether counsel believes that any actual conflict of interest existed
           between herself and the applicant as a result of any grievances filed by the applicant
           with the State Bar.

        9. Please indicate whether counsel felt it would have beenbeneficial or necessarj tc file
           a motion for discovery or a motion to suppress evidence in the applicant's case.
           Please explain why or why not.

        Mary Moore is ordered to file said affidavit with the Appellate Division of the District

Clerk's Office, 1201 Franklin, Third Floor, Houston, Texas 77002, within THIRTY DAYS of

the signing of this Order.
                        ·····-

       The Clerk of the Court is ORDERED to send a copy of this Order to the applicant and to

the State, and to serve copies of this Order, the application, and the memorandum supporting the

application on attorney:

       Mary Moore
       1314 Texas St., Suite 1600
       Houston, TX 77002

       When the affidavit of Mary Moore is received, the Clerk is ORDERED to send a copy of

said affidavit to the applicant, Thomas Elton McDonnel, #1562227 -Wayne Scott Unit, 6999

Retrieve Rd., Angleton, Texas 77515 and a copy to the attorney for the State, Kevin Keating, 1201

Franklin, Suite 600; Houston, Texas 77002.




                                                2
'   ·,,   .
                                                                     (~J
                                               Cause No. 11313 53-)(   i3
 EX PARTE                                                      §       IN THE 248th DISTRICT COURT

                                                               §       OF

 THOMAS ELTON MCDONNEL,                                        §       HARRIS COUNTY, TEXAS
   Applicant




                                       . CERTU~ICATE OF SERVICE

          · The undersigned counsel certifies that I have served a copy of the ".State's Proposed
OrJu- {)e-'~5""'~-~;I'-S"'e. -"'~ ~ ... F,"/i'n.!l Aff'c.\ov ;.J--
Findings of Fad, Cgaell:lsiefts ef lam, and Onief" in cause number 1131353-B to the applicant

on January 10, 2012 by mail as follows:

              Thomas Elton McDonnel·
              #1562227- Wayne Scott Unit
              6999 Retrieve Rd.
              Angleton, Texas 77515



                                                         k:-~
                                                       Kevin P. Keating          ..
                                                       Assistant District Attorney
                                                       Harris County, Texas
                                                       1201 Franklin, Suite 600
                                                       Houston, Texas 77002
                                                       (713) 755-6657
                                                       Texas Bar ID #00787813




                                                                                      FILED
                                                                                       Chris Daniel
                                                                                        District Clerk

                                                                                        JAN 1 0 20\2




                                                           4
       •.   : ....,   c
..-'


                          The Clerk of the Court is ORDERED NOT to transmit at this time any documents in the

             above-styled case to the Court of Criminal Appeals until further ordered by this Court.

                                          By the following signature, the Court adopts
                                         the State's Propo d Order for Filing Affidavit.
                                       Signed                   day of              2011.

                                                                   JAN f.7 2012




                                                               3
l.




                 EXHIBIT "8"
     - Motion:   To Compel Compliance -
. "'   '
           Thomas E. McDannel
           Wayne Scott Unit
           6999 Retrieve Rd.
           Angleton, TX 77515

           April 1, 2013

           Attorney General
           Harris County Clerk
           Attorney Moore


           Re:   Filing of Motion
                 Cause: 1131353-8

           Greetings,
                  Enclosed you will find the MOTION TO COMPEL COMPLIANCE WITH
           STATE'S PROPOSED ORDER DESIGNATING ISSUES AND ORDER FOR FILING AF-
           FIDAVIT.    Included is the Court's Copy,   Clerk's Copy,   Attorney Ms.
           Mary Moore Copy mailed to 1314 Texas Street,      Ste.,#1600 Houston,
           Texas 77002 and Attorney General Greg Abbot,      Post Office Box 12548
           Austin,    Texas 78711-2548.
                  Enclosed you will also find my self addressed & stamped enve-
           lope for return of the filemark,    date and stamped copy for my per-
           sonal records in this action before the Court.
                  Thanking this Honorable Clerk's Office for your timely attent-
           ion to this most important legal matter.


                                                          Respectfully Submitted,


                                                          -~~          z. ~C/~'M/
                                                          Thomas Elton McDannel
                                                          TDCJ-ID #1562227




           cc:   AG Greg Abbot
                 Attry M. Moore
                            CAUSE NO: 1131353-8

THOMAS E. McDONELL                        §        IN THE DISTRICT COURT

vs.                                       §       24BTH JUDICIAL DISTRICT

STATE OF TEXAS                            §        HARRIS COUNTY,   TEXAS


               MOTION TO COMPEL COMPLIANCE WITH STATE'S
                    PRO~OSED    ORDER DESIGNATING ISSUES
                     AND ORDER FOR FILING AFFIDAVIT

TO THE HONORABLE JUDGE OF SAID COURT:

       COMES NOW,   Thomas E.    M~Donnell,       hereinafter referred as Movant,

proceeding in own     beb~lf    pro-se,       pursuant to the Texas Code of Cri-

minal Procedure, Article 11 .07, § 3(d), in above listed cause and would there-

fore show this Honorable Court the following facts:

                                          I.

      Movant previously has filed a Texas Code of Criminal Procedure

11.07 Application for Writ of Habeas Corpus with this Court on the

7th day of September,     2012.    This. Court issued State's Proposed Ord-

er Designating Issue And For Filing Affidavit from Mary Moore whom

previously represented movant in this Trial Court as his attorney.

This Order contained issues of fact and was certified on Jan 17,12.

Copies were mailed by this Court's Clerk pursuant to rule going un-

answered by said attorney indefinitely.

                                          II.

      Movant did,   after said delay in answer from Mary Moore, file a

Motion To Compel. Compliance With Court Order on the 29th of Novem-

ber 2012 and placed into the unit United States Mailbox with proper

certificate of service dated and signed by movant.              Said motion did

contain movant's filemark copy with sef addressed and stamped en-

velope for return to movant.        Movant never received said filemark

copy from this Court's Honorable Clsrk's Office.              It is now been

                                    (1    of 3)
approximately six months with no reply from Mary Moore.

                                    III.

    Movant requests that upon attorney Mary Moore's compliance to

State's Proposed Order Designating Issue And For Filing Affidavit

is received by this Honorable Court and Clerk's Office that a com-

plete copy of said answer be forwarded to movant/applicani.

                                PRAYER

WHEREFORE,   PREMISES CONSIDERED,    movan.t prays that this Honorable

Court will demand compliance with its ORDER previously issued and

with all things considered in the interest of justice and grant

this pleading.



                                               Respectfully Submitted,


                                                1~£.mcMJ
                                               Thomas E. McDonnel,prose
                                               Wayne Scott Unit
                                               6999 Retrieve Road
                                               Angleton, Texas  77515




                               (2 of 3)     Attached Certificate of Service
                         CERTIFICATE OF SERVICE



I,   HEREBY CERTIFY,   that on this 1 day of April 2012,      a true and

correct copy of this above and foregoing MOTION TO COMPEL COMPLI-

ANCE WITH STATE'S PROPOSED ORDER DESIGNATING ISSUES AND ORDER FOR

FILING AFFIDAVIT was placed into the Texas Department of Criminal

Justice -   Institutional Division Wayne Scott Unit internal United

States Mail System out-going-box,        with proper postage attached,

for delivery to the Harris County Criminal Judicial District Clerk's

Office at Post Office Box 4651        Houston,   Texas 77210 - 4651,   as

well as copy to attorney Ms.     Mary Moore at 1314 Texas Street in

Suite #1600 Houston,     Texas 77002.



                                                    R~spectfully   Certified,
                                                                                ./
                                                    J~£~eu/.
                                                    Thomas Elton M~Donnel
                                                    Wayne Scott Unit
                                                    6999 Retrieve Road
                                                    Angleton, Texas 77515




                                 (3    of 3)
                                                CHRIS DANIEL
                                        HARRIS COUNTY DISTRICT CLERK



October 28, 20 13

THOMAS ELTON MCDONNEL # 1562227
WAYNE SCOTT UN IT
6999 RETRIEVE RD
ANGLETON, TX 77515

To Whom It May Concern:

Pursuant to Article ll.07 of the Texas Code of Criminal Procedure, please tind enclosed
copies of the documents indicated below concerning the Post Conviction Writ filed in
cause number 1131353-B in the 248th District Court.

D         State's Original Answer Filed

D         Affidavit

[ZJ Court Order Dated October 25, 2013

D         Respondent's Proposed Order Designating Issues and Order For Filing Affidavit.

D         Respondent's Proposed Findings of Fact and Order

D         Other


sf·~.c~q
      .·
     ,l




R~. · a Garcia, Deputy
Criminal Post Trial

rg

Enclosure(s)- AMENDED ORDER TO FILE AFFIDAVIT FOR MS.                                MARY MOORE




                  120 I FRANKI.IN   •   P.O. BOX 4651   •   HOUSTON.   TEXAS 77210-465 I   •   (888) 545-5577

PAGE I OF I                                                                                                REV: 01-02-04
                                                 -('~
                                                            . f~
                 ~;,.,,~ 2
                         o~,-?'i-.S.
                               ~/. 0 ~}
                                        r}.
                                          ·,
                ->:2~. :;u co, 0<¥~"?1c, C.~se No. 113 13 53-B
                                      1
          (?!-      ·
             'C.r· ·    · .J         /o :1 ~
                 ""-- / _:;. '                         . (}        ~'+
EX PARTE                '<:~\~.;·;,...                      ~~?          §   IN THE 248 1h DISTRICT COURT
                             ~.,                   ......
                                           (~;,·~,..

                               ..~~' ... :;;.,
                                   ·'·"•:,, ~                            §   OF

THOMAS ELTON
   Applicant
                             MCD~~
                                 ([j'
                                                                         §   HARRIS COUNTY, TEXAS


                 AMENDED STATE'S PROPOSED ORDER DESIGNATING ISSUE
                             AND FOR FILING AFFIDAVIT

        Having considered the application and supplement appli;;,ation fur vvrit of habeas corpu5 in

the above-captioned cause and the State's original answer, the Court finds that the issue of whether

the applicant was denied effective assistance of counsel still needs to be resolved in the present

case.

        Therefore, pursuant to Article 11.07, §3(d), this Court will resolve the above-cited issue

and then enter findings of fact.

        To assist the Court in resolving these factual issues, counsel Mary Moore is ORDERED

to tile an affidavit summarizing her actions as counsel for the applicant in the primary case,

cause number 1131353, and specifically responding to the following:

        I. Please outline how counsel investigated the applicant's case. Was the investigation
           limited in any way? If so, please explain why.

        2. Was counsel aware of the applicant's lack of a criminal background or prior arrest
           history? Was there anything in particular about the applicant's lack of criminal
           background or prior arrest history that counsel used at trial or believes would have
           been beneficial and admissible at trial that she failed to employ at trial? If so, please
           explain why.

        3. Does counsel believe that she had a firm grasp of the facts surrounding the applicant's
           case at the time of trial? Was counsel ready for trial?

        4. Please indicate if the applicant brought any potential witnesses to the attention of
           counsel that counsel chose not to interview. If there are any such witnesses, please
           explain why no interview was conducted.




                    - I "·
                   'L-i IJ U       r·~i
       5. Was counsel aware of any witnesses that would have been beneficial or necessary to
          the defense of the applicant that she failed to interview or call at trial? If so, please
          explain why.

       6. Please indicate the nature of any grievances that the applicam filed with the State Bar
          against counsel prior to trial, and please include copies of any such grievances or
          responses to such grievances that are available.

       7. Does counsel believe that any grievances that the applicant filed with the State Bar
          affected her representation of him at trial in any way? If so, please explain how.

       8. Please indicate whether counsel believes that any actual conflict of interest existed
          between herself and the applicant as a result of any grievances filed by the applicant
          with the State Bar.

       9. Please indicate whether counsel felt it would have been beneficial or necessary to tile
          a motion for discovery or a motion to suppress evidence in the applicant's case.
          Please explain why or why not.

       I 0. Please indicate whether counsel "opened the door" to Applicant's extraneous offense
            on cross-examination of the State's witnesses. If so, please state counsel's trial
            strategy for "opening the door" to Applicant's extraneous offense.

       11. Please indicate whether the State commented on applicant's failure to testify during
           closing argument. If the State commented on applicant's failure to testify during
           closing argument, did counsel object and preserve the issue for appeal? If the State
           commented on applicant's failure to testify during closing argument and counsel did
           not object and preserve the issue for appeal, please state counsel's strategic reasons
           for doing so.

       Mary Moore is ordered to file said affidavit with the Appellate Division of the District

Clerk's Office, 1201 Franklin, Third Floor, Houston, Texas 77002, within THIRTY DAYS of

the signing of this Order.

       The Clerk of the Court is ORDERED to send a copy of this Order to the applicant and to

the State, a;1d to serve copies of this Order, the application, and the memoranJum supporting the

application on attorney:

       Mary Moore
       1314 Texas St., Suite 1600
       Houston, TX 77002




                                                2
       When the affidavit of Mary Moore is received, the Clerk is ORDERED to send a copy of

said affidavit to the applicant, Thomas Elton McDonnel, #1562227- Wayne Scott Unit, 6999

Retrieve Rd., Angleton, Texas 77515 and a copy to the attorney for the State, Aimee Bolletino,

1201 Franklin, Suite 600; Houston, Texas 77002.




       The Clerk of the Court is ORDERED NOT to transmit at this time any documents in the

above-styled case to the Court of Criminal Appeals tmtil further ordered by this Court.

                          By the following signature, the Court adopts




                                                  3
                                    Cause No. 1131353-B

EX PARTE                                     §            fN THE 248 1h DISTRICT COURT

                                             §            OF

THOMAS ELTON MCDONNEL,                       §            HARRJS COUNTY, TEXAS
  Applicant



                               CERTIFICATE OF SERVICE

       The undersigned counsel certifies that I have served a copy of the "State's Proposed

Order Designating Issue and for Affidavit" in cause number 1131353-B to the applicant on

September 30, 2013 by mail as follows:

       Thomas Elton McDannel
       #1562227- Wayne Scott Unit
       6999 Retrieve Rd.
       Angleton, Texas 77515


                                         '-~
                                          Aimee Bolletino
                                          Assistant District Attorney
                                          Harris County, Texas
                                          1201 Franklin, Suite 600
                                          Houston, Texas 77002
                                          (713) 755-6657
                                          Texas Bar ID #2405671 7




                                             4
                   EXHIBIT   11
                                  C"
- Motion: For a Live Plenary Evidentiary Hearing -
                                   CAUSE NUMBER
                                    1131353-B

EX PARTE                                  §       IN THE 24BTH DISTRICT
THOMAS E .. McDONNEL                      §               COURT OF
         Applicant                        §        HARRIS. COUNTY, TEXAS


                    APPLICANT'S MOTION FOR A LIVE PLENARY
                             EVIDENTIARY HEARING


TO THE HONORABLE JUDGE OF SAID COURT:
       COMES NOW,    Thomas E. McDannel,       Petitioner prose in the above
numbered and styled       cau~e   and files this motion for a Live Plenary
E vide n.t i.a r y Hearing and Bench Warrant,      pursuant to art. 11 . 0 7 of
the Tex.Code. Crim. Proc. and will show the Court as followed:
                                          I.
A.   Petitioner
       1 . 01   Thomas E. McDonrrel,    TDCJ-ID #1562227,    is an offender
incarcerated in the Texas Dep.t. of Crim. Justice             (TDCJ)   and is
prose, who can be located at the Wayne Sco.t·t Unit,              6999 Retrieve
Rd.,    CR 290,    Angleton,   Texas 77515.
       1 . 02   Petitioner has repeatedly petitioned this Court to ·act
on Petitioner's 11.07. Petitioher requests the Court to take ju-
dicial notice of the District Clerks file on the above cause num-
ber and obtain motions and inquiries asking that the issues be
resolved.
       1.03     The previous presiding judge,       Judge Cambsll,     did in
fact order the· Court Clerk .not to transmit any doc u me.n t s in the
above styled case until further notice due to the fact that there
were issues to be resolved by this said Court.
       1 . 04   The defense c.ounsel,    Attorney· Mary Moore,     was issued a
notice to answer by affidavit the questions set forth in the Peti-
tioner's 11.07 Writ of Hab~as Corpus. The defen~e attorney has
been issued several notices to answer ths aforementioned affidavit.
To this date the Petitioner has not received a copy of the affi-
davit nor has any of the documents been             tran~mitted    to the Court




                                         -1-
..
             of Criminal AppealB" If                   the~e.ab.ove          styl~d         documents had been
             t r a n s mi t t e d . t o t h e Co u r t . o f Cr i mi n a l   Ap p e a.l s· , t h e . P e t i t i o n e r   wo u l d
             have- been notified.
                    The. State,        Feder~l       and Supr.eme Court case.- law_ mandates that
             when an. applicant. files                 a. collateral attack on ··his criminal con-
             viction , t h.e initial task is . to. ·de t.e.r mine whet h e.r his allegations
             if proven would establish the right to HabeEs                                      ~elief.        If so proven,
             he   is:enti~led          to .an      evide~tiary         hearing to further develop the
             factual .. basis        w~th     facts outside the record.                       Ex Parte Reyna,               702
             S . W. 2 d 9 21    ( T x . Crim . Ap p . 1 9 8 6) ; Streetman v . 'Lv n aug h , 81 2 F. 2 d 9 50
             ( 5th Ci r . ) ; Towns e_nd v . Sa in , 3 7 2 U . S .                2 9 8 , 3 0 7 , 8 3 S ..Ct . 7 4 5 ,
             9 L.Ed.2d 770            (1963).
                                                                    II.
                    Applicant asse.rts              (inter alia) .constitutional ineffectiveness
             of trial counsBl,              prosecutorial misconduct,                        ~nd   error of the trial
             court.      In seeking          th~    instant Live Plenary Evidentiary Hearing to
             prove these assertions,                   Applicant has need to develop facts that
             are presently outside the record.                           It will be impossible for this
             Honorable Court to adequately determine the merits of Applicant's
             claim without· further develop me n.t of these facts that are outside
             the record.          The need to fully develop the record is of the utmost
             importance because the Court of Criminal Appeals will be .limited
             to the record as it was developed within; the trial court.                                                Galvin
             v.   State,       869. S.W.2d 526,            527-29      (Tx.App.         -    Corpus Christi 1993).
             As the record now stands,                     it is totally inade.quate for the Court
             to perform its .required duty.

     I
         I                                                          I I I.
             Inordinate- Delay:
                   1 . 01      The Court , the ·.District Attorney , and . the Petitioner ' s
             defense counsel,              Mary Moore, ·have wholly failed to comply with
             article 11.07 df the Tex.Code Crim.Proc.,                                  are     actin~       in bad faith
             and have not afforded Petitioner with profes&ional and common cou-
             rtesy at resolving these issues in Petitioner's 11.07 as so order-




                                                                     -2-
.'
     ed by the previous judge.
            1 . 02   Wilwording v.      Swenson,    92 S.Ct.     487 at. 249-250    (rejecting
     suggestion tha.t Sta.te prisbner should have invoked any other poss-
     ible alternative to state            habe~s.   including a suit for injunction,
     a writ of prohibition,          or mandamus or declaratory judgment in
     State's court       o~   perhaps    ot~er    relief under State     Administratio~

     Procedure Act.).         In Turner v.       Bagley,   401   F.3d 718 {6th Cir.     2005)
     28 U.S.C.       2243 confers Federal Courts with the discYetion to dis-
     pose of Habeas Corpus matters and tailor remedies as law and jus-
     tice requires.
                                            CONCLUSION
            The Petitioner has shown this Court that under the Sixth Amend-
     ment of the. United States CO,nstitution he has been denied the
     right to effective assistance of counsel as·well as dus process of
     la~.    The District Court has deni·ed.Petitioner due process of law
     by delaying to rule on his 11.07 Writ of Habsas CorpuB.                       As a prose
     litigant,       Petitioner respectfully asks this HDnorabla Court to
     grant his motion for A Live Ple.nary Evidentiary Hearing.
                                                 PRAYER
            WHEREFORE,    PREMISES CONSIDERED,            Petitioner prays that this
     ~otion     will b.e. granted,      a bench warrant issuerl,       and a ruling be
     is~ued     that have been filed in the cause number and grant Petition-
     er any other orLadditional reLief he is                  justly entitled to,      it is
     so prayed.




                                                   -3-
•   0




                                    CERTIFIC.ATE OF SERVICE
               I    hereby ce~tify that a true. copy of th.e foregoin~ instrument
        wa~    served to the District Court Clerk by placihg a. copy in the
        U.S.       mail addressed to:
               Harris County;Courthouse
               248th District Court
               1201 Franklin St., 16th Floor
               Houston, Texas 77002

               EXECUTED on the          day of                     2 01 4.

        Thomas E. McDannel                                    Respectfully Submitted,


                                                              zL~~
        #1562227
        Wayne Scott Unit
        6999 Retrieve Rd., CR 290
        Angleton, Texas 77515                                 T4lomas E. McDannel




                                                 -4-
                    EXHIBIT "0"
- Motion: To Have    Previo~E   Motions Ruled On -
        • }   )         "!:"\




                                                                                                                                                  i:, /           />               .
                                                                                                                                           ~          "~0.'•-1:; ;4,,··
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                                           •                                                                           .··
                                                                                                                                            'l.__,~ \.)'C',y_~Lf'<;<
                                                                                                                                                               0>·~·
                  Chris Daniel                                                                                        "i:.                   ':~                 Oc!;..rJ~,·
                  Ha r r i s Co u n t y Di s t r i c t             Cl e r k                                                  :r,..-1'>'              /..> '1:>-f}:~j~~
                                4 6 51
-------------~-~-~-~-t-~-~-~~e->ca---s7T2T0-=-4-6_5_1________Tt,'i2 7· ·~J::!..Q-~- J}_-------------- --~~~ ----- -~ ~\-
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                                                                                                                                                                       ;6
                  Nov ember                         21 04                                                                                    ~b.
                                                                                                                                                '(1:;.:                ·vv1
                                                                                                                                                                         .
                                                                                                                                                 VY
                  RE : Mo t i o n P u r s u a n t t o F e d e r a l           Ru l e s o f   Ci v i l   P r o c e d u r e Ru 1 e 7 2 . \~b~-
                       To have motions ruled on:                                                                                                          ~


                  '~   Ch r i s       Da n i e 1    11



                  Dear Sir:
                                  I   have enclosed a motion for ruling according to Fed.                                                 Rules of
                  Civil Proc.                   Rule 72,         for filing with your office and also to be
                  considered                   by        the 248th Judicial District Court Judge Katherine
                  Cabanis presiding.                         I   have a self-addressed stamped envelope to be
                  returned unto me with this coverletter,                                    requesting that you please
                  file date stamp it and return to me using said envelope showing that
                  this motion was presented to said Court and Judge presiding.
                                  Your cooperation,                time and patience is greatly appreciated.
                  Thank you.


                  Thomas E. McDannel #1562227
                  Wayne Scott Unit                                                                  Respectfully Submitted,
                  6999 Retrieve Rd.
                  Angleton, Texas   77 51 5
                                                                                                    Thomas E.        McDannel

                                                                                                    Date:     November                      ,2014



                  C/C
                                Filed:
     ....


                                      Cause Nos. 113153-B &


         Ex Parte                                            §
------Tliomas E. McDannel                                    §
                                                             §




              PtAINTIFF MOTION PURSUANT TO FEDERAL RULES OF CIVIL
                  RULE 72. TO HAVE HIS NUMEROUS PENDING MOTIONS RULED ON:


            TO THE HONORABLE JUDGE OF SAID COURT:
                 COMES NOW,       Thoma~     E. McDannel,         Plaintiff herein,              proceeding
            Pro se and in support of this motion will show this Honorable Court
            the following:

                                                             I.
                 p 1 ai n t i f f. i s . e n t i t l e d to have mo t i o n s r u l e d on t h a t   ate ·no t
            dispositive of the entire Cause of Action.                        See Fed.      R.    Civ. Rule 72;
            "Non-dispositive Matters. When a pretrial matter not dispositive of
            a parties claim or defense is referred to a trial Judge to hear and
            decide,    the trial Judge must promptly conduct the required proceed-
            ings and when appropriate,              issue a written order stating the                     deci~~

            sian. A party may serve and file objections within 10 days after
            being served with a copy."

                                                            II.
                 Plaintiff has the following motions pending for which he is
            now seeking a ruling:
                 1 .) Plaintiff's Application of Writ of Habeas Corpus Cause No.
                      113153-B wherefore Assistant District Attorney for Harris
                      County and said Court designated issues on the date of
                      February 14, 2011. "Applicant was denied the effective
                      assistance of counsel.'' Controverted praviously unresolved
                      facts material to the leqalitv of ApplicaMt's confinement
                      and needs to b~ resolved.
                 2.)    ?laintiff's motion for a Live Plenary Evidentiary Hearing,
                        filed on October 9, 2014.




                                                            -1-



                                                                                  \~
        PRAYER:
             WHEREFORE,   premises considered,     Plaintiff prays that this motion
-----G:ri-rrBe gran'fed and thereafter a ruling be issued on each motion that
        has been filed in these causes, and grant Plaintiff any other or add-
        itional relief he is justly entitled to,       it is so prayed.

        CERTIFICATE OF SERVICE:
             Service has been accomplished by mailing a true and correct
        copy of the following forgoing instrument to the following address:
        Chris Daniel
        Harris County District Clerk
        P.O. Box 4651
        Houston, Texas 77210-4651

             Executed on this day of      I~      November 2014, under both Fed-
        eral Law (28 U.S.C.   §1746~   and State Law CV.A.C.C. Proc. & Remedies
        Code §132.001-132.003).


                                                          Respectfully Submitted,

                                                          '7 ~~    t[ lv 0~.__/'
                                                          Thomas E. McDonnel
                                                          TDCJ-ID #1562227
                                                          Wayne Scott Unit
                                                          6999 Retrieve Rd.
                                                          Angleton, Texas 77515




                                            -2-
                 EXHIBIT "E"
-Letter: Inquiry and Notice to File Mandamus.-
4,




     June 17, 2015


     Harris County Courthouse
     Clerk o~ Court - Chris Daniels
     1 201 Franklin St.
     Houston, TX 77002


     RE:   Writ of Habeas Corpus Application
           Cause No. 11 31353-B


     Dear Honorable Clerk            Da~iels:


           I  am writing to you because you have not complied with Article
     11.07, §3 (c) of the Texas Code of Criminal Procedure.                              On August 31,
     2011, I filed my original 11.07 hlrit of Habeas Corpus                              Application.
     The Court designated. issues, but then ~L\.•did not hear any·thing after
     that. So, on January 10, 2012 I filed. a 11 State 1 s Order· to Comply 11
     motion with the court • Then on Apr i 1 1 , 2 01 3 I f i 1 e d · a motion 11 To
     Co mp e 1 Co mp 1 i a n c e 11 wi t h t h e Co u r t . I t h e n f i 1 e·d a n Am e n d e d 1 1 . 0 7
     Writ of Habeas Corpus with the Court on 09-25-2013. On October 9,
     2 0 1 4 I f i 1 e d a mo t ion 11 For a Live P 1 e n a r y · Ev i de n .t i a r y H·e ar in g 11 • An d
     finally on November 17, 2014 I filed a motion 11 To Have Previous
     Motions Ruled On 11 •

         To this date, my motibns hav~ not been ruled on (if they have
     then I have not been provided with a copy of the ruling) and my
     11.07 Writ of Habeas Corpus Application has not been forwarded to
     the Court of Criminal Appeals.

         Per T CCP 11 . 0 7 , § 3 ( c ) , you are required to immediate 1 y .trans-
     mit to the Court of Criminal ~ppeals a copy of the applic~tion, any
     answers filed, and a certificate. reciting the date upon which that
     finding was made, if the convicting court decided that there were
     no issues to be .resol.ved. In my ·c.a•se.,·,··ther'eo.were.:is"SUes~·:designated
     to be resolved. In that case, I believe. you are given 180 days to
     resolve the issues and if you (the Court) has not, then you, Clerk
     Daniels, are required to immedicately send the above listed ite~s
     to the Court of Criminal Ap~eals. You have faile~ to do this. Since
     my original. Application was mailed to you, it has been almost four
     (4) years and since the Amended Application was sent it has been
     just over one and a half years. It' is beyond time to send every-
     thing to the Court of Criminal Appeals. It is to the point now where
     you are acting in bad faith.

           This letter is to serve two purposes. The first, is to request
     o n e 1 a s t t i me f o r y o u t o f u 1 f i 11 y o u r d u.t y a s t h e Ha r r i s Co u n t y
     Clerk, and mail my 11.07 Application, any answers filed, the cert-
     ificate reciting the date upon which the findings were made, exhibits,
     and r~ason for untimely delay in doing. so to the Court of Cri~inal
     Appeals. The second purpose, is to.inform you that I will be filing
'


    a Writ of M.andamus to the Court of Criminal Appeals if I do not
    receive notiGe from.them within 14 business days of this letter
    that you have transmitted to them.all the a.ppropriate doc~ments.
                                                                                                '.

          It is my understanding that the convicting Judgs, Judge Cambell,
    i s n o 1 o n g e r t h.e r e a n d t h a t Ho no r a b 1 e J u d g e Ka t h r i n e Ca b a n i s i s
    the sitting judge at this time. It was for this Very reason that
    I submitted my motion for a Live. Plenary Evidentiary Hearing.

           I have enclosed a ~ASE for the purpose of sending me a file
    ma r k e d I d a t e s t am p e d c o p y t o me .s h o wi n g y o u r .r e c e i p t o f t·h i s 1 e t t e r
    and notice of intent tb file a mandamu·s. Also~enclosed, inside the
    SASE , is the first page copy of this 1 e t t e r for you · t·o use in f i 1 e
    marking/date stamping. I appreciate your timely response to this
    matter and pray that you will follbw the rules ~rovided in TCCP,
    11.07, §3(c). Thank you.

                                                                           Sincerely,


                                                                              ~L~,WJ/
                                                                           Thomas E. McDannel
                                                                           TDCJ-ID #1562227
                                                                           Wayne Scott Unit
                                                                           6999 Retrieve Rd.
                                                                           Angleton, TX 77515
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