                                DONALD JAY PRUITT
                                TDCJ~CID# 1057730
                              WILLIAM CLEMENTS UNIT
                                  9601 SPUR 591
                              AMARILLO, TEXAS 79107


ABEL ACOSTA, CLERK
COURT OF CRIMINAL APPEALS OF TEXAS
P.O. BOX 12308, CAPITOL STATION
                                                                                       RECEIVED IN
AUSTIN, TEXAS                                                             COURT OF CRIMINAL APPEALS
          78711
                                                                                       fVIAR 0 6 2015

RE:    WRIT   No._tJf<.·- ss; J'/3-Q3,          EX   PART~   DONALO JAY    PR~lfl!~JrAf;ostagCUertk
       FtL1NG OF MOTION.


Dear Honorable Clerk:
'. :. Plea~e:   f i~d~- ~~clbs~d   i   m~ ·,-- ;; MbTIO~ .-REQUESTING'. COURT   cir-   -~rurV!iNAL

APPEALS TO ORDER TRIAL COURT TO DESTGNATE ISSUES TO BE RESOLVED

AND PREPARE       PROPER~FINDINGS.OF:FACT~AND,                CONCLUSIONS OF LAW RE-

GARDING       APPLICANT~S   WRIT OF HABEAS CORPUS PURSUANT TO THE PRO-

VIS!ONS,.OF § 11.07."

      Would you please see             to.~it   that this Motion       gets attached to

my habeas application for presentation to the Honorable Justices.

      I thank you in advance                                                      in this

very important matter.



Sincerely yours,

~mt//r)#-~
Donal~ay         Pruitt

Pro Se Representation
                           WRIT NO. t-Jl.-£5;:J~t3-Q3



EX PARTE                                §             IN THE COURT OF



                                        §            CRIMINAL APPEALS



DONALD JAY PRUITT                       §            AT AUSTIN, ,TEXAS



*****************************************************************

   MOTION REQUESTING COURT OF CRIMINAL APPEALS-TO ORDER TRIAL

   COURT TO DESIGNATE ISSUES TO BE RESOLVED AND PREPARE PROPER

 FINDINGS OF FACTS AND CONCLUSIONS OF LAW REGARDING APPLICANT'S

   WRIT OF HABEAS CORPUS PURSUANT TO THE PROVISIONS OF § 11.07

*****************************************************************



TO THE HONORABLE JUSTICES OF THE COURT OF CRIMINAL APPEALS:



     COMES NOW, Donald Jay Pruitt, Applicant, pro se, and respect-

fully moves this Honorable Court to set aside the Clerk's Record

that has been fowarded to this Court, pursuant to Texas Code of

Criminal Procedure, Article        11~07,   for failure to comply with Sec-

tion 3.(c) governing 11.07 proceedings.

   Section 3(c) governing § 11.07 procee~ings provides:

    Within 20 days of the expiration of the time in which the
    state is allowed to answer, it shall be the duty of the con-
    victing court to decide whether there are controverted, pre-
    viously unresolved facts material to the legality of the
    applicant's confinement. Confinement means confinement for
    any of fen s e · or any co ll ate r a 1 cons e·qu en c e res u l t i n g f rom t he
    conviction that is the basis of the instant habeas corpus.
    If the convicting court decides that there are no such issues,
    the clerk sh~ll immediately transmit to the Court of Criminal
    Appeals a copy of the application, any answers filed, and a
                                   Page 2.



     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.

                      ARGUMENTS & AUTHORITIES

   Although the trial court acted within 20 days of the expiration

of the time in which the state was allowed to answer. The trial

court in the instant habeas corpus, decided that there are no con-

troverted, previously unresolved facts material to the legality of

applicant's confinement. The trial court then      orde~ed   the Clerk to

transmit the entire habeas corpus record to this Court. Applicant

requests that this Honorable Court set aside the Clerk's Record in

the instant action and remand for proper findings of facts and con-

elusions of law pursuant to the provisions of § 11.07. Applicant

will show the Court as follows:

  On page bne of Applicant's ''MEMORANDUM OF LAW IN SUPPORT OF

APPLICATION FOR A WRIT OF HABEAS CORPUS PURSUANT TO TEXAS CODE OF

CRIMINAL PROCEDURE 11.07." Applicant stated the following:

    REQUEST FOR EVIDENTIARY HEARING & EXPANSION OF THE RECORD

   Applicant has presented this Honorable Court with controverted,

previously unresolved issues of fact material to the legality of

applicant's confinement, which,    if true, entitle him to relief.

   ''In a post-conviction collateral attack,     the burden is on the

applicant to allege and prove facts which,      if true, entitle him

to relief.'' Ex parte Maldonado,   688 S.W.2d 114, 116 (Tex.Crim.App.

1985); Ex parte Richardson,   70 S.W.3d 865, 870 (Tex.Crim.App.2002);

Ex parte Morrow, 952 S.W.2d 530,    534 (Tex.Crim.App.l997).

   "It is the applicant's obligation to      provi~e   a sufficient record
                               Page 3.



that supports his allegations with proof by a preponderance (not

beyond all reasonable doubt) of the evidence." Ex parte Chandler,

182 S.W.3d 350, 353 (Tex.Crim.App.2005).

  Because the burden of proof is on the applicant and,   the fact

that the Court of Criminal Appeals does not hear evidence, only

the trial court my conduct a hearing. Therefore, Applicant re-

quests this Honorable Court to conduct a live evidentiary hearing.

                        **********************

   Applicant presented the following two Grounds For Relief in

the instant case:   (These were the only Grounds in the 11.07).

                              GROUND ONE (VERBATIM)

   APPLICANT'S COUNSEL WAS INEFFECTIVE IN FAILING TO CONDUCT A
REASONABLE PRE-HEARING INVESTIGATION FOR MITIGATION EVIDENCE AND
INTRODUCE SAME AT APPLICANT'S REVOCATION HEARING. THIS VIOLATED
APPLICANT'S RIGHT TO COUNSEL, AS GUARANTEED BY AMENDMENTS 6 AND
14 TO THE U.S. CONSTITUTION. SEE WIGGINS V SMITH, 123 S.CT.2527
(2003); WILLIAMS V TAYLOR, 120 S~CT. 1495 (2000); STRICKLAND V
WASHINGTON, 104 S.CT.2052 (1984).                .


                              GROUND TWO (VERBATIM)

   APPLICANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AND DUE
PROCESS OF LAW WHEN TRIAL COUNSEL ADAM REED FAILED TO CONVEY THE
STATE'S TWO PLEA .OFFERS. THIS. VIOLATED APPLICANT'S RIGHT TO COUN-
SEL AND TO DUE PROCESS OF .LAW, AS GUARANTEED BY AMENDMENTS 6, 5,
AND 14 TO THE U. S. CONSTITUTION. SEE STRICKLAND V WASHINGTON,
104 S.CT. 2052 {1984); MISSOURI V FRYE, 132 S.CT. 1399 (2012);
LAFLER'V COOPER, 132 S.CT. 1376 (2012).

   As illustrated above, Applicant's Grounds For Relief involve

ineffective assi.stance of counsel claims. Applicant would argue to

this Honorable Court,   that when a convicting court is faced with

ineffective assistance of counsel claims, this Court of Criminal

Appeals requires the convicting court to either hold an evidentiary

hearing, or, order the attorney to respond to the allegations set
                               Page 4.



forth in the habeas application. Cf., Ex parte Campos,    613   s.w.
2d 745 (Tex.Crim.App.l98l).

   Applicant would point out that this Court of Criminal Appeals

has consistently held that when the trial court fails to designate

the issues to be resolved. in ineffective assistance of counsel cases

that they will remand for further proceedings. See e.g.,    Ex parte

Tate,   2006 WL 1173515 (''Remand was required for factual findings,

in proceedings on application for writ of habeas corpus, where dis-

trict court entered no findings of fact or conclusions of law, and

applicant's allegation. of facts underlying his claim of ineffective

assistance of counsel potentially entitled him to relief should

allegations be true"); See also Ex parte Manning,    2006 WL 1173174

("Remand was required for additional factual findings,    in proceed-

ings on application for writ of habeas corpus, where applicant al-

leged facts in support of his claim of ineffective assistance of

counsel which;   if true could entitle him to relief").

   In Applicant's 11.07, Applicant demonstrated,    unquestionably,

through the affidavits requesting .that Applicant be granted cle-

mency/commutation from the District Attorney (not an assistant dis-

trict attorney) Clay L. Ballman,   the trial court judge, Honorable

John LaGrone, and even the Borger Police Department Chief, Jimmy

Adams. The common denominator of the above stated,    is that had

Applicant's revocation counsel investigated the case and presented

mitigation evidence,   that the trial judge and district attorney

would have moved to just modify Applicant's probation.    Instead,

Applicant was sentenced to 55-years, aggravated.
                               Page 5.



   Moreover,   plea counsel who was initially appointed in this case

failed to convey to the Applicant that the State had made two plea

offers and therefore,   Applicant was deprived of the opportunity of

accepting either offer which constitutes the requisite prejudice.

   In the instant case, Applicant has presented facts that un-

deniably support his claims of ineffective assistance of counsel,

which, are true, and entitle him t6 relief.

   The district .court's decision in the instant case not to find

that Applicant had presented controverted, previously unresolved

facts material to the legality of Applicant's confinement does not

comply with Section 3(c) governing 11.07 proceedings and affects

the integrity of the proceedings which requires this Honorable
                                                                           \
Court to set aside the Clerk's Record that has been filed with this

Court and order the trial court judge to designate issues to be re-

solved and prepare a proper findings of facts and conclusions of

law.

     WHEREFORE based on the above, Applicant, Donald Jay Pruitt,
urges this Honorable Court to grant this motion to set aside the
Clerk's Record, and issue an order that the trial court designate
issues to be resolved in compliance with Section 3(c), governing
11.07 proceedings.

Respectfully submitted on   this~day     of    ;j?~LJ{         I   2015.




                                         ~~~  Donald J       tt ·
                                              Pro Se Representation
