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uétuber 02, 2015

~Eourt of Criminal Appeals

Elerk of Court - Abel Acosta
P.U. Box 12308, Capitol Station
Austin, TX 78711

Dear Honorable Blerk Acosta:

Please find enclosed an Amendment to writ of Mandamus in No.
MR-BZ,530-01 in Cause No. 1131353-5 to be considered by the Honor-
able Eourt of Briminal Appeals: wherefore, the trial court has
transmitted the Habeas record in said Eause number without a Full
and fair hearing as Supreme Court decisions allow Realtor to devel-
op the record. `

I request at this time that you tile this Amendment with the
original writ of Mandamus because the trial court has already trans-
mitted my 11.07'Application;-exhibits, memorandum of law, etc For
this Eourt's rulling. I need this Amendment to be included with my
original writ of mandamus.'

Thank you very much For your kind assistance in this matter. I
»have enclosed a B.A.S.E. For your convienence so that you can return
a tile/date stamped copy of this letter to me.

I have also sent a copy to the District Elerk, _ngis\%§ni&l,
Harris Bounty, Texas. thi ED"
‘ COU>"`*`§" : T"’““'"\!!\L APPEALS

 

Respectfully Requested, n ' G:? §§:TH
7£@“~ <, du¢\O,// . l
lhomas E. McDonnel #’|`562227 A@@LAC@UU§§QYK

wayne Scott Unit
6999 Retrieve Rd.
Angleton, TX 77515

Uctober 02, 2015 .

Chris Daniel _

Harris Eounty, District Bourt - Elerk /
1201 Franklin St.

Houston, TX 77002

/

/

RE: Amended writ of Mandamus to be served on Judicial District Eourt
ZABth. " ‘

'Dear Mr. Daniel:
\

Please find enclosed a copy of Realtors Amendment to his writ
of Mandamus No. wR-83,530-01 and tile it with your office and
present it upon the ZLBth Judicial District Court.

Thank you For your assistance.

Respectfully Requested,

 

Thomas E. McDonnel #1562227
wayne Scott Unit
6999_Retrieve Rd_

Hngleton, TX 77515

IN THE
BUURT UF CRIMINAL APPEAES

AUSTIN,.TEXAS

 

THUMAS E. MCDDNNEL
TDEJ-ID #1562227
Realtor, NU. wR-BB,EZD-01

V.

HARRIS EUUNTY DISTRICT JUDGE
DISTRIET’EDURT ZABth JUDIEIAL DISTRIET
HUNURABLE JUDEE KATHERINE'EABANIS
IN HER UFFIEIAt EAPAEITY
Respondant

 

ND. wR-B§,SZU-Dl
-CAUSE ND; 1134353-5
ZABth JUDIEIAL CDURT UF
HARRIB CUUNTV, TEXAS

AMENDMENT TU APPLlEATIUN FUR wRIT DF MANDAMUS
IN wR-83,530-01 EAUSE NU:41131355-B

TD THE HDNURABLE.JUDEE UF SAID EDURTZ

EDMES NUw, Thomas E. McDonnel, Realtor.pro se, in the above
styled and numbered cause of action and tiles this Amendment to App-
lication for'writ of Mandamus in'wR¢BB,BSD-U1 Eause No. 1131353-5,
pursuant to Article)11.07 §§(c) of the Texas Code of Criminal Pro-
cedure (T.C.C.P.) and would show the Eourt the following:

I.

Thomas E. McDonnel5 TDEJ¢ID #1562227, is an offender incarcera-
ted in the Texas Department`of Eriminal Justice, and is appearing
pro se, who can be located at the wayne Scott Unit, Brazoria Eounty,
Texas 77515. Realtor has exhausted his remedies and has no other ad-

equate remedies at law.

('|)

l

The act sought is ministerial and not discretionary in nature.
T.C.C.P. Art. 11.07 §Z(d) requires REspondant to "resolve" the issues
set out in the order designating issues and then have the District
Clerh submit the record on such Application.

Un September 7, 2010, the Btate of Texas, by and through its
court Judge,'Joan Eampbell, pursuant to T.C,E.P; Artr 11.07 §B(d) de-
signated the following issues needing to be resolvedr (1) whether
the Applicant was denied effective assistance of counsel.

Un September 25, 2013, the State of Texa55 by and through its
court Judge, pursuant to T.C;CLP. Art. 41407 §B(d) designated the
following issues needing to be resolved on Applicant's amended
11.07: (2) Prosecutor misconduct by DA addressing the Jurors on
Applicant's failure to testify.

Un July B, 2015, Judicial District Court ZLBth, at the time the
Realtor filed his Mandamus in the Court of Eriminal Appeals had
neglected to perform its ministerial duty of resolving the.issues.

Un August 26, 2015, the Eourt of Criminal Appeals of Texas, or-
dered the Respondant, Judge Eabanis, of said Eourt §248th Judicial
District Bourt) to respond to Realtors mandamus by filing a response
with_this Eourt and to submit the record on such Habeas Corpus App-
lication. ln the alternative, the Respondant.may resolve the issues
set out in the order designating issues and then have the District
Elerk submit the record on such application. In either case; the
Respondant‘s answer shall_be submitted within 30 dayssof the date of
this order. This writ of Mandamus will be held in abeyance until v

the Respondant has submitted her resonse; Filed August 26, 2015.

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The Honorable Judge Joan Eampbell who presided over the trial
proceedings; issued order which were signed by the same, to serve
the purpose of designating issues on both, the original 11.07 and
the amended 11.07, in order to further develop the record. Appli-
cant has filed numerous letters of inquiry and motions sent to the
court between January 12, 2012 and November 2014.

Dn August 26, 2015, the date in which this Honorable Eourt
issued its order under wRFBE,EZD-D1, the presiding Judge of Judi-
cial District Eourt 248th is not the trial Judge whom presided over
Realtor's trial , This current Judge has so.ruled in Eause No.
1131353-5 by accepting the affidavit of Realtor's defense counsel
and also by accepting the State's order submitted by the Assistant
District Attorney, Jill Burdette IB #2#055492. The record cannot
disclose counsel's erroneous reason for not investigating the case
nor the fact that she did not, nor could not, call potential wit-
nesses who could help Realtor‘s case.

Realtor has such need of a "tive Plenary Evidentiary Hearing"
to further develop the-record as to "Prosecutor Misconduct" of
addressing gesser Jurors personally and commenting on Realtor's
failure to testify and trial courtls ineffectiveness of trial counsel
by failing to investigate-the case and failing to call witnesses to
help his cause.

II.

VIULATIUN`UF U.S. SUPREME CUURT DEEISIUNS

The United State's Supreme Eourt's decisions require that the

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trial court allow Realtor to develop the factual basis of his claims.
T0wN5END v. BAIN, 372 U.B. 293 (1963)(held: on the record in this
case the District Bourt erred in denying a writ of Habeas Corpus
without a "Plenary Evidentiary Hearing". 372 U.SL 295-322); see

also ELACKLEDGE v. ALLISUN, 97 S.Et. 1621, 1653 (1977)(Eut Allison

is entitled to careful considerations and Plenary processing of his
claim). Including full opportunity for presentation of relevant
facts.

The trial court is_not free to ignore Supreme Court decisions.
HIEHwARDEN v. BTATE, 846 S.w.2d 479, 401 (TexApp Hou [1hth Dist1 1995).
Therefore, the trial court is required by Supreme.Eourt decision to
allow Realtor to develop the facts from every source that has per-
sonal knowledge of factual allegations within his Habeas applica-
tion. 5ee EROwN v. JUHNSDN; 524 F.3d 461, 467 (Eth Eir. 2000).

lt will be-impossible for a fair and full hearing in this case
to be totally dependent upon a paper hearing by affidavits. Trial
counsel cannot be expected to admit her own ineffectiveness. See
ALSTUN v. GARRISUN, 720 E.2d 012, 016 (Eth cir. 1983); It will
therefore, require the extensive knowledge and skills of another att-
orney to test the credibility of his/her answers in a cruciall
cross-examination.

with this in mind, Federal Courts have consistently ruled "a
Judge that did not conduct the trial is 'DISQUALIFIED‘ to judge the
credibility of affidavits in Habeas proceedings by the trial
counsel, DA's or witnesses, etc. This is true because only the
trial judge has first hand knowledge to compose the facts that are

in said affidavits to what actually took place at trial." PERILLO v.

(L+)

JUHNSUN, 79 F,3d.hh1, hh6 (5th Eir. 1906).

State Bourt Habeas findings of fact are presumed correct "only"
when there has been a full and fair hearing. 20 U;S.E. §2254(d);
ARMSTEAD v; SEOTT, 61 F.3d 333; 3&7 65th Eir. 1995). Additionally,
~if these presently unresolved issues are not resolved by the trial
court during a Live Evidentiary Hearing, it will deny Realtor a
fair and full opportunity to resolve them.

The EOurt of`Eriminal Appeals will grant mandamus relief when a
Realtor shows: 1) that the act sought to be compelled is purely
ministerial and 2) that there is no adequate remedy at law. wINTERS
v. PRESIDING JUDEE 0F THE BOIM. DIST. CUURT No. #£3) THREE, 110
S.w.3d 773, 775 (Tex.Crim.App. 2003); BEARSDN v. DIST. ELERK, 331
S.w.3d 431.

Additionally "the Realtor must have a clear right to the relief
sought", "meaning that the merits of the relief sought is beyond
dispute." IN RE RDDRIEUEZ, 77 B.w;3d at 461. The requirement of a
clear legal right necessitates that the law plainly describes the
duty to be performed such that there is no room for the exercise to
be discretion.

wHEREFURE, PREMISES CDNSIDERED, Realtor prays that this motion

in all things be granted Hereby ordering the trial court to host a
Live Plenary Evidentiary Hearing in Realtor's cause No. 1131353-0

as required by Supreme Bourt decisions. where Realtor seeks to
develop factual basis of his claims "Prosecutorial Misconduct against
trial-saaesel the DA and Ineffectiv Assistance of Eounsel against

`trial counsel", that if true entitle Realtor to relief. And order

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trial court to issue a Bench warrant for Realtor so he can person-
ally attend this hearing. And any other or additional relief he is

justly entitled to. It is so prayed~

UNSwDRN DEELARATIUN
I, Thomas E. McDonnel, TDEJ-ID #1562227, presently incarcerated
at the wayne~Scott Unit of the Texas Department of Eriminal Justice,
Brazoria County, Texas, verify and declare under penalty of perjury
that the foregoing statements are true and correct.

EXECUTED on this 2nd day of 0ctober 2015.

Respectfully Submitted,

:>ACJ**€ 53 4&@£;&7/7/

thomas E. McDonnel #1562227
wayne Scott Unit

6999 Retrieve Rd

Angleton, Texas 77515

Realtor pro se

EERIFICATE 0F SERVIEE
I hereby certify that a true and correct copy of the above
application for writ of Mandamus Amendment was served on 240th
Judicial District Judge presiding, by placing a copy in the U.S.
Mail addressed to: Ehris Daniel, District Elerk of Eourt, 1201
Franklin St., Houston, Texas 77002 on this-the 2nd day of 0ctober
2015.

7/;#4»¢/{/%/@:;/

§ealtgr #1562227

 

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