Court of Criminal Appeals
Clerk of Court - ~bel Acosta
P.O. Box 12308
Capitol Station                                                                           RECEIVED IN
Austin, TX 78711
                                                                                   COURT OF CRIMINAL APPEAlS

Dea.r Honorable Clerk Acosta:                                                              OCT 05 2015
    P 1 e as e . find en c 1 o s e d a co p y o f the Re s p o ns e t.h a.t I f i 1 e\d w ~1t h
the Clerk o.f ·Court in Harris County on. Sept.ember 10, 2015. T~~tf'i.COSfa,Cferk
Judge for that Court had· signed the Findings of Facts/State's
Con~lusion of Law for my 11.07 Wr·it of Habeas Corpus two days prior
to receiving my Response and my fear is that the Clerk sent you
my 11.07 application and file with· it to you before they received
said Response.

     I request at this time that you file this. copy with the file
t hat yo  u
          h a v e. · o n me . I_! t h i s Co u r t h a s. a 1 r e a d y r e c e i v e d my 1 1 . 0 7
application, exhibits, memorandum of law, etc. for this Court's
ruling, would you plea.se present it to the Court for inclusion with
everything else.

    Thank you very much fmr your kind assistance in this matter.                                 I
have enclosed a S.A.S.E. for your convienence so that you can
return a File/Qate stamped copy of this letter to me.

Respectfully Submit


                                                     uJl-2ct J7o-63
                                     CAUSE NO.         /2?.2~32-d           <f'   /)f}_~ 33-4

Ex Parte·.:                                            §      IN THE DISTRICT COURT OF

                                                       §      HARRIS COUNTY, TEXAS

BOBBY HENRY                                            §      180th JUDICIAL DISTRICT


         APPLICANT'S RESPONSE TO THE COURT'S ORD£R AND RESPONSE
           FOR. A SUPPLEMENTAL ORDER BE ISSUED AND SUPPLEMENTAL
            REQUE.ST FOR A LIVE EVIDENTIARY HEARING BECAUSE THE
            JUDGE THAT SIGNED. THE ORDER FOR THIS PAPER HEARING
                IS NOT THE SAME JUDGE THAT PRESIDED OVER THESE
                   PROCEEDS AT THIS TIME,                  HAVING. NO KNO.WLIDGE
         OF THE TRIAL,. A PAPER HEARING IS THEREFORE INADEQUATE.

TO THE HONORABLE JUDGE OF                      SA~D   COURT:

      COMES NOW,         BOBBY HENRY,            AplLicant herein and in support of

this motion will show.this Honorable Court the following:

      This Honorable Court iss.ued an order that is signed by the

previous Judge on             Jdt'l!m/::rtr'          !}__    20/2       This order is to serve

the purpose of designating issues in order to further develop the

record.

      It will be impossible for a fair and full hearing in this                                           c~se


t o b e t o t a 11 y d e p e n d e n t   u p o n a p a p e .r h e a r i n g b y a f f i d a v i t s . T r i a 1

counsel can not be expected to. admit his own ineffectiveness, this

is the very reason that a new counsel is appointed to protect the

appeal. Alston v. garrisonL 720 F.2d 812, 816 (5th Cir 1983)(Coun-

sels can not be expacted to admit their own ineffectiveness in the

habeas proceedings in sworn affidavits). Doing so would be detri-

mental to counsels livelihood .. It will therefore, require the ex-

tensive knowledge and skills ofanother attorney to test the ere-

ibility of his/her answers in a crucial cross-examination.



                                                       (1 )
      It's beyond dispute that counsel's,           the court reporter's and

the   .Dist~ict    Attorney's and trial Judge's answers in their respec-

tive affidavits        w~ll   all be subjected to a credibility determina-

tion. This is a duty that only the Judge that conducted the trial

can perform.       Yet·,   in· this case, 'the trial judge. understandably can

not u n b i a.s 1 y assess the c red i b i 1· it y of his own a f f ida vi t . With this

in mind,    the Federal Courts have consistently ruled a Judge that

did not conduct the trial is             "disqualified". to judge the credibility

of affidavits prese.nted in a habeas proceddings by the trial counsel,

DA's or witnesses etc .... This is true because only the trial jud-

ge has first hand knowledge to compare the 'facts that are in said

affida~it(s)       to what.   actual~y   took place.at trial.       As such,   a paper

hearing will not be considered a fair and full determination of

facts   in the Habeas proceeding.           Perilla v.   Johnson,    79 F.3d 441,

446   (5th Cir 1996).

      "Moreover, even if there has been state court findings on this

issue they would not be entitled to the presumption of correctness.

State court habeas findings ·of fact are presumed· correct "only"

when there has been a full and fair hearing.               28 U.S.C. §2254(d).

Armstead v.       Scott, 61    F. 3d 333,   347 (5th Cir 1995).

      ''[I]t is necessary to examine. in each case whether a paper hear-

ing is appropriate to .the nesoluti·on of the factual dispute under-

lying the petitioner's claim." May. v. Collin,. 955 F.2d 299,                  312

(5th Cir). Nevertheless,          a factfinding procedure .that involves cred-

ibility determinations and is based on a paper hearing affords the




                                            (2)
habeas    petitioner a       full     and fair      hearing when the          state court

judge who has       presided over the           petitionerls trial conducts the

habeas    petitioner's proceedings.              (~~~stead,          37 F.3d at      208).

    Next,    applicant seeks to              develop    the    factual      basis of his claim

against the       Judge    and DA.     These    allegations,          if true,      will entitle

applicant to       relief and,        therefore,       by   U.S.     Supreme Court decision

require    this    Court to    allow applicant to              develop      the factual       basis

of his claim .. ss,        Townssnd v.        Sain,    372 U.S.       293   (1963)(held;       on

the record in       this    case the        District Court erred in denying                  a Writ

of Habeas COrp.us         withou.t    a plenary evidentiary hearing.                  Pp.    372 U.S.

295-322);    see    also Blackledge v.           Allison,         97 S.Ct. 1621, 1633          (1977)

(''But Allison is         entitled to       care.ful    conside~ation         and    plenary

processing of       (his claim)        inclu~ing       full    opportunity for         presenta-:~


tion of the       relevant facts".           Harris v.      Nelson,     394 U.S.      at    298,    89

S.Ct.    at 109DY;    see also        Id.   n.25:     (When    the    issue is one of         credi~


bility resolutions on           the    basis    of affidavits can rarely be                  ~on­


elusive but that is· not to             say they may not be helpful.)

    The    trial court ·is Not          Free to       ignore      Supreme Court decisions.

Highwarden v.       State,    846 S.W.2d 479,           481    (Tex.App.      Houston       (14 Dist]

1993).

    Therefore,       this    Honorable Court is             Required by Supreme Court

decision    to    allDw applicant to           develop      the    facts    from every source

that has    personal· knowledge. of the               factual. allegations within his

habeaswapplication.          see Brown v.        Johnson,         224 F.3d 461,       467    (5th Cir

2GDO).

    Additionally,          if these     presently unresolved issues are not re-



                                                (3)
solved by this Honnrable Court during a live Evidentiary hearing,

it will deny applicant a fair and full opportunity to resolve them.

    WHEREFORE,    PREMISES CONSIDERED,       Applicant prays that this motion

in all things be granted,       thereby ordering a live evidentiary hear-

i ng be he 1 d and issue a bench warrant for Ap p,l i cant so he can per-

sonally attend this hearing.       In the alternative, supplement this

paper hearing as requested herein and grant Applicant any other or

additional relief he is justly entitled to.          It is so prayed.


                             CERTIFICATE OF SERVICE

    I    hereby certify tha·t a true and correct copy of the above

motion was. served on Chris Daniel by placing a copy in the U.S.

Mail addressed to:       Chris Daniel, Clerk of Court, 1201      Franklin St.,

Houston,    Texas 7700·2 on this the 1Oth day of 'September 2015.


                                                 c__...~.J0~)lftl3
                                                       Appl~    nt

                              UNSWORN DECLARATION

    I,    Bobby Henry,   TDCJ-ID #1719613,    presently incarcerated in

the Wayne Scott Unit af the Texas       De~artment    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 10th day of September 2015.
                                          R pectfully Submitted,
                                                                     /I   '!tltt3
                                                          enry
                                                   Wayne Scott Unit
                                                   6999 Retrieve Rd
                                                   Angleton, Texas 77515

                                                   Applicant,   Pro se




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