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EX PARTE § IN THE CRIMINAL DISTRICT

WRIT NO. 12-03324-CRF-272-A

§ 272nd JUDICIAL DISTRICT
DAVE D; GREER § BRAZOS COUNTY, TEXAS
APPLICANT‘S HOTION T0 ENFORCE THE CDURT‘S ORDER T0 HOLD EARL GRAY AND HARY
HENNESSY IN CONTEMPT 0F COURT FOR THEIR REFUSAL AND FAILURE TO OBEY THE
HONORABLE KYLE HAHTHORN'S COURT ORDER
TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOH, DAVE DUANE GREER, Applicant herein and in support of this motion

will show this Honorable Court the following:
I.

To be entitled to an order to hold a person in contempt you must prove the

'following: In Re Guerra, 235 S.w¢3d 392, 433 (Tex.App.-Corpus Christi 2007):
"The contempt alleged in this case, violation of a written court order,
outside the presence of the court, is constructive contempt. A finding of
.contempt for disobedience to a court order requires proof beyond a
reasonable doubt of: (1) a reasonable specific order; (2) a violation of
the order; and (3) the willful intent to violate the order. Citing §§
Parte Chambers, 898 S. w. 2d 257, 259 (Tex. 1995). " “"~
II; _

On ,July 6, 2015 the Honorable judge Kyle Hawthorn issued a specific order
to Eary Gray and Mary Hennessy providing them a definite deadline of (90) days
from the signing of this order along with a reasonable specific details of what
they must do.v A copy of this order is now attached as Ex. A; This court order
states in relevant part: .

"Pursuant to Tex.Code Crim.Proc.art. 11.07,§3(d), the Court is of the
opinion that controverted, previously unresolved factual issues material
to the legality of Applicant's confinement exist. Therefore, the Court
designates the following issues of fact to be resolve:..;To assist the
Court in resolving these factual issues, Earl Gray (trial- counsel) and
Mary Hennessy (appellant counsel) are ORDERED to file affidavits
responding .to the respective allegations as to trial or appellate counsel
contained in the application; said affidavit' must be filed with the

District Clerk of Brazos County, Texas within ninety (90) days of the
signing of the order."

Gray was specifically order to respond to the allegations in Applicant's

11.07 grounds of error ten, twelve thirteen, Hennessy was to respond to grounds
. 1

`of error fourteen-sixteen. Applicant in his diligent efforts to assist the
Honorable Court and both attorneys in providing them specific notice of the
exact allegations they needed to respond to. Applicant provided each a copy of
the memorandum of law with attached exhibits and a copy of the supplemental
motion for a live evidentiary hearing. These two documents and exhibits provided
each attorney a specific detailed explanation of the factual allegations that
required their response. Their signed and notariied affidavit responding to the
specific allegation within the 11.07 was due to be filed on or before October 4,
2015. Today being November 2, 2015 which is well past the ordered deadline
E. Gray has totally failed to respond. Therefore, he is undeniable in contempt
of court. Furthermore, as the ordered stated his response is ‘needed before the
Honorable Court can resolve the factual allegations in Applicants 11.07. As such
Gray's refusal and failure has and continues to impede, and frustrate the
authority and dignity of this Honorable Court. Veteran Attorney and past
prosecutor Gray is well aware that without his compliance this entire proceeding
has came to a screeching halt. This is obvious, because without his respective
_ response these issues can not be resolved. Therefore, his conduct can not be
considered nothing less than willful. `
III.
Hennessy did submit an affidavit dated 10-2-15. This affidavit in the very

third sentence swears: "I am making this affidavit pursuant to the order of the
Judge of the 272nd District Court, the Honorable Travis B¢ Bryan, III.” This is
a false, fraudulent and perjuried statement. This order was issued by Kyle
'Hawthorn. The reason yHennessy made this false, perjuried statement is
irrelevant. Because her affidavit contains false and fraudulent information it

must be stricken from the record; Texas has long held fraud vitiates whatever it

touches.

\

.Under Texas law once a party establishes that a document includes
false and fraudulent matters, the entire document is fraud and therefore,
a legal nullity. See Cox v. UpJohn Co. , 913 S. w. 2d 235, 231
(Tex. App. -Dallas 1995)(Texas courts have long held that 'fraud vitiates
whatever it touches." Estate of Stonecipher v. Estate of Butts, 591

S.w;2d 806, 809 (Tex. 1979); Morris v. House, 32 Tex. 492; 495 (1870)."
0nce her affidavit is stricken from the record she is in contempt of court
order for failure to submit required affidavit. without waiving the
aforementioned reasons to hold Hennessy in contempt Applicant additionally will
point the reasons Hennessy's affidavit did not comply with the relevant specific

court order. Therefore, it‘s not in compliance witLthe court's order.

Applicant will point out that- Hennessy's affidavit is fraud based upon
material omissions. Hennessy only disclosed part of the facts and failure to
disclose all the facts has left a false impression on this Honorable Court. It

is well settled law that Attorney Hennessy owes her primary loyalty to the court
before which she practices. See , Malautea v. §u;uki Motor Co. LTD, 987 F.2d
1536,1546 (11th Cir. 1993)("All attorneys as ‘officers of the court owes duties
of complete candor and primary loyalty to the court before which they

practice. An attorney's duty to a client can never outweigh his or her

responsibility to see that our system of justice functions smoothly. This

concept is as old as common law jurisprudence itself."). See also Union Pacific

Resources Group v. Phone Poulence, 247 F.3d 574, 586 (5th Cir 2001):

"...one party voluntarily discloses some but less than all material
facts, so that he must disclose the whole truth. i.e. all material facts
lest his partial disclosure convey a false impression...we conclude that
.RPI assumed the affirmative duty to make full disclosure when it
volunteered some (but no all) material information about the
transaction. It thereby obligated itself to speak the whole truth' it
could not remain silent after nmrely making partial disclosures that
conveyed a false impression."

Hennessy on the first page of her affidavit states: "On June 1, 2014,
Applicant filed a post-conviction writ of habeas corpus alleging several grounds
for relief, including several grounds alleging my performance as the appellate

attorney was deficient.

"In preparing this affidavit, I have reviewed the following; the
application, my file and the reporter's.record for this case."

The trial court's order specifically required her to address:
1. Failed to file affidavit in support of motion for new trial.
2. Failed to bring forth issues specifically requested by Applicant as grounds
for motion for new trial: that trial counsel was ineffective for not allowing
Applicant view videos pretrial and that the leather jacket would not fit
Applicant." Hennessy never stated why she did not file an affidavit with the
motion for new trial as ORDERED BY THE COURTJ Therefore, Hennessy is in contempt
of court for her obvious failure to obey the reasonable specific orders of the
court.

Additionally when Hennessy review her file she had a copy of Ex, Bl~4 which
I personally nmiled her to be copied and keep one for herself before she filed
the motion for new trial. Counsel was well aware before she filed the motion for
new trail of the damaging nature of the video. Furthermore, she was aware that
Applicant repeatedly requested E. Gray to allow him to review the video see Ex
83 which is a copy of the letter Applicant sent to Gray on 8-12-12 which stated
in relevant part: "when can I view the video?" Ex. B4 dated 9-16-12_"when can I
view the video?" Counsel was also aware of the state's plea of 5 years right up
till the jury was sworn in. Hennessy was well aware of the highly inculpatory
nature of the video and the persuasiveness it could have had on Applicant's
decisin to accept the State plea offer if applicant been allowed to review it
pretrial. This fact coupled with Hennessy's personally attestting to the fact in
her affidavit to her high degree of professionalsim and top notch skills as a
appellate attorneyl Therefore, she was well aware of the holdings in Johnson
v. State, 172 S.W. 3d 6, 19 (Tex.App.-Austin, 2005) (“If prior, to trial

appellant has listened to the audiotape her overall strategy might have been

substantially different,. For example, she might have considered a plea."). It's
obvious Hennessy is not being totally forthcoming and vhonest with all the»‘
relevant requested facts in her affidavit. As such her _affidavit is conveying a~
false and misleading impressing upon the true factual allegation the Honorable
Judge Kyle Hawthorn is seeking to resolve. Therefore, Hennessy's affidavit is
not in compliance with the court's order. 4 `

HHEREFORE, PREMISES CONSIDERED, Applicant request that an immediate order
be issued for a warrant for the arrest of Earl Gray and Mary Hennessy and they
each be place in the county jail until they fully comply with the reasonable
specific order of this Honorable Court, and grant Applicant any further or

additional relief he is justly entitled to, it is so prayed.

Q:; fully submitted,

Dave D."dreer #1829754

Wayne Scott Unit

Retrieve Rd.

Angleton, Texas 77515

CERTIFICATE 0F SERVICE
I, hereby certify that a true and correct copy of this document has been

sent to all parties in this cause by addressing a copy to: Attorney, Earl Gray,
103 North Main, Bryan, Texas 77803, Mary Hennessy P.0. Box 2536, Breham, Texas
77834, District Attorney, Mr. Jarvis Parsons, 300 E. 26th Street, Suite 310,
Bryan, Texas 77803; The Brazos District Clerk, Marc Hamlin, 300 E. 26th St.,
Suite 1200, Bryan, Texas 77803, the District Clerk of the Court of Crimina]
Appeals; Abel Acosta, Supreme Court Bldg, 201 w. 14th St. Rm 106, Austin, Texas

78701-1445 by placing a copy of the same in the U.S. Mail postage prepaid on

this 231 day of N§V’C[v_\gg@ , 2015. §N®

v

Dave D. Greer

 

 

CAUSE NO. 12-03324-CRF-272-A
EX PARTE § IN THE DISTRICT COURT OF
§ '272nd JUDICIAL DISTRICT

DAVID D. GREER § BRAZOS COUNTY; TEXAS
ORDER SETTING A HEARING DATE
A hearing is $et for: APPLICANT'S MOTION TO ENFORCE THE COURT'S ORDER TO

HOLD EARL GRAY AND MARY HENNESSY IN CONTEMPT OF COURT FOR THEIR REFUSAL AND

FAILURE‘TO OBEY THE `HONORABLE KYLE HAWTHORN'S COURT ORDER. A hearing is Set in

this court for this motion for 0'clock , M/PM on the day
of , 2015.
SIGNED on this the day of , 2015.

 

JUDGE PRESIDING

- QU\/o

--_.___M
w wine zms.

    
         

 

._‘m

Cau'se No. 12-03324'-CRF-272~A

EX PARTE ' § lN THE DISTRICT count or
§ BRAzos coUN'rY, TEXAs
DAVID GREER § 272nd JUDICIAL nrsrnlcr

 

Pursuant to Tex. Code Crim. Proc. art. l l.07, §3(d), the Court is of the opinion
that controverted, previously unresolved factual issues material to the legality of
Applicant’s confinement exist. Therefore, the Court designates the following issues of
fact to be resolved: -

In Ground Ten of the application, Applicant has alleged that trial counsel was
a friend/co-worker of all state’s witnesses and was operating under a conflict of
interest

\
In Ground 'l`welve of the application, Applicant has alleged that trial counsel

 

___'__was__op,eratingamder.a,contlictn£interestwhere.he__.i..v_oluntarily__helpe1 or did “n‘de

alongs” with the Brazos County Sherist Dept. on raids Where all suspects are

 

considered armed and dangerous, and he would have had to prove that liis friends/co-
workers did not follow procedure

In Ground Thirteen of the application, Applicant has alleged the following ~

 

 

 

 

 

claims of ineffective assistance of trial counsel; that trial counsel:

 

 

 

 

 

 

 

 

   

l. had a conflict of interest
2. failed to properly present the motion to suppress or urge for a rehearing

3. failed to object where the State allegedly failed to produce video 20 days before
trial

4. agreed to allow State to admit redacted version of inculpatory video and signed
a stipulation allowing the State to do So without Appl'icant’s knowledge

 

5. did not object where the State failed to produce Deputy Ficke or CI for cross-
examination . .

6. failed to object to hearsay statements and request ruling
7. failed to object to back door hearsay statements and request ruling.

8. failed to allow Applicant to review video so that Applicant could make an
informed choice of whether to accept the State’s offer or go to trial.

9. failed to object to admission of gun video or jacket without establishing proper
chain of custody.

~lO.‘failed to object when State stated that the Applicant was only in jail for the
offense he is now convicted of.

l l.failed to object when Applicant was not present at trial when jury sent out note
and the judge sent back a reply.

 

lZ.failed to object when State presented false evidence (4 _RR 87, l. '7-9_). .

 

 

 

l3.failed to object when the State introduced the incomplete inventory list.

l4.assisted the State in denying Applicant’s right to cross-examine Dé:puty Ficke (4
' RR 90, l. 7~9).

l$.failed to object when State merged several videos into one and admitted the
altered video without objecting to authentication (4 RR 151, l,. 6-7; 4 RR 144, l.

 

 

 

 

 

 

   

lO-12;4 RR166,1. 19-20).

16.failed to allow the only defense witness to review the video before testifying

because counsel said that would be witness tampering
l7.failed to object when the State misstated the law.

lS.failed to object when State made improper jury arguments

l9.f.ailed to request that the trial court make findings of fact and conclusions of law

after motion to suppress was denied

ZO.failed to object when the jury was allowed to take video and player into jury

room during deliberations

2 l .failed to object to State’s use of video of custodial interrogation

 

22. failed to pursue excupatory evidence, dispatch logs ofSheriff’ s Dept and Bryan
Police Departmen.t', for February 16, 2012 at approximately l am thru 4 pm.

In Ground Fourteen of the application, Applicant has alleged a Sixth

Amendm.ent violation as to the following claims of ineffective assistance of appellate

counsel; that’appellate counsel:

l. failed to tile affidavit in support of motion for new trial.

_.”....2 ._failed..tobringforth.issues;specifically;requested ..by....Applicant...as...groundsfoL.__“wW_

f . . . .
motion for new trial: that trial counsel was ineffective for ;not allowing

 

 

 

 

Applicant view videos pretrial and that the leather jacket would not fit

Applicant

In Ground Fifteen of the application, Applicant has alleged

 

a Fourteenth

 

 

   

Amendrnent violation as to the same claims alleged iny Ground Fourteeii.

flfn Ground Sixteen of the application, Applicant has alleged ihe following

claims of ineffective assistance of trial counsel; that trial counsel:
I_. failed to obtain ruling on motion to suppress
2. failed to obtain findings of fact and conclusions of iaw on motion to suppress .
3. failed to argue the identification of Applicant by the CI.
4. failed to argue the identification of the CI.
5. failed to argue the inventory search as being incomplete and .imjiroper.

The Court finds that “[a]n ineffective assistance of counsel claim waives the
attorney-client privilege Model Ru'les of Prof’s Conduct R. l. .6(b) (5); see also Unired
States v. Ba[lard, 779_ F.2d 287, 292 (5th Cir. 1986).” Ex parte Cooper, nos. WR-
69098-01, WR-69098-02, 2008 W`L 241464, * l , fn. l. (Tex. Crim. App. Jan. 30, 2008).

To assist the Court iii resolving these factual i.ssues, Earl Gray (trial counsel) and

Mary Hennessy (appellate counsel) are ORDERED to file affidavits responding to the

 

__________.__respective.allegations..as.to._trialcr_appellate..counsel.,contained in..the.application; said

 

affidavit must be filed with the District Clerk of Brazos County, Texas within ninety

 

 

 

(90) days of the signing of this Order.

The District Clerk is also ORDERED to send a copy of this Order to the

following:

l0

 

 

 

 

   

Earl Gray, 103 North Main, Bryan, Texas 77803,

Mary Hennessy, P O. Box 2536, Brenharn, Texas 77 834 _

David Greer #03322636, Scott Unit 6999 Retrieve, Angleton TX 77515.
Brazos County District Attorney’ s Office

\
:‘>$"’.NT"

The Court hereby ORDERS the District Clerk of Brazos Count;y to withhold
preparing and transmitting the Record to the Court of Crim,inal Appeals until further

Order of this Court.

/ L/)
siGNEii)the §§ day of \)‘~/ n ,2015.

 

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