October 5,2015

Court of Criminal Appeals
P.O. Box 12308 Capitol Station
Austin, Texas 787ll

Re: Filing of Response to Finding of Facts
Conclusion of Law Writ No: WR-83-373-Ol

Dear Clerk of Court

Please findienclosed my pleadings for review with the filings sent from
the hearing court. I was just now seved with the white card from your court
dated 9/28/15a Please make sure this pleading is filed and review with the

other filings. Thank you for your help in this matteri

 

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Respectfully yours

Owen P. Willis # 1752314

Applicant pro se
Ellis Unit, 1697 FM 980
Huntsville, TX 77343

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IN THE 89th JUDICIAL DISTRICT COURT n
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WICHITA COUNTY, TEXAS
AND

IN THE coURT oF cRIMINAL APPEALS
AUSTIN, `TEXAS

 

EX PARTE ) WRIT CAUSE NO: WR-83-373-Ol
)
OWEN PASCAL WILLIS # 1752314 ) ` TRIAL COURT NO:51582~C*l-2

 

APPLICANTS OBJECTIONS AND RESPONSE TO HEARING COURTS FINDING OF FACTS AND

CONCLUSION OF LAW

TO THE HONORABLE JUDGES OF THE TEXAS COURT OF CRIMINAL APPEALS:

NOW COMES APPLICANT, OWEN PASCAL WILLIS # l7523l4,pro se petitioner in the ab-
ove numbered cause, making his complaint/objections and response to the Hear-

ing Courts findings. Applicant will explain as follows.

Specific objection number one :
\

States response to Motion for D.N.A. and the attached Affidavit by Attorney
Kyle Lessor District Attorney. This submission by District Attorney is both
troubling and contradictingi .l) In this submission DA Lessor admits he is
aware that applicant IS NOT THE SHOOTER.Quote," The State CONCEDES that DNA
testing of the shells and cell phone will not likely have defendants DNA
on it and that, if any exist, it will BELONG TO THE SHOOTER,Anthony Green."
Applicant makes specific complaint in his habeas concerning the indictments
and the fruadulemt content contained within them specifically " Intentionally

,knowingly,or recklessly cause bodily injury to Cristopher Bell,by shooting

the victim, and the defendant~ did then-and there use or exhibit a deadly
weapon, to wit; a firearmi" Applicant Objects to Hearing Courts FAILURE\
to make a finding to the fraudulent nature of the indictmentsimsit relates
to the admission' of the District Attorney. The other side of this is tthe
law is clear and concise on this issue. See Burkhalter V State supra Williams
V State 513 S.W.Zd at 54,56, Duggar V State 778 S,W.Zd at 465, Crim Law,706(2),
Prosecutor has a constitutional duty to correct known false evidence UiS.C.A.
5i14th,C.CaP. art 2.01 Crim Law 1171.8(1) Brady V United States,397 U.S.742 ,

748,90 S.Ct.l463,l469, miscarriage of justice.

The Applicant WAS NOT CHARGED with the law of parties as excused away
by the hearing court. Quote: " Given the facts revealed by Ms. Bella's-Affid-
avit, Applicant 4wou1d have LIKELY BEEN found guilty of aggravated assault
under the law of parties. See TexiPenal Code.§§ 7501 & 7.02." The problem
is the applicant WAS NOT charged with law of parties and it WAS NOT contained
within the charging instrument the"indictment£? Hearing Court failed in its
duty to investigate or hold District Attorney culpable for his Prosecutional
misconduct -reporting false rinformation to the Grandjury that affected the
outcome of that proceeding. See C.C.P. art 2.01 fraudulent indictmentsa

Applicant Objects to this and request this Court to remand for further inquirys
Specific objection number two;

States Attonrey made a affidavit concerning the skills and qualifications
of applicants defense attorney Ms. Bella,that does not exactly meet the cri-
teria of a detatched and professional opinion of an individuals performance
rating styled report. This affdavit is filled with passion and some what
verbally descriptive narratives of Msa Bella's skills and effortsa The content

of this affidavit brings more questions about the relationship between pro-

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secutor and Ms; Bella as complained about in applicants writ of habeas.

Quote, " Ms. Bellai as an adversary she is one of the most thorough and tire-
less defense attorneys around."_ " To suggest Msi:Bella, somehow influenced
‘her client to accept a plea bargain or failed to investigate a potential
defense is perposterous.F It is rare for a District Attorney to take it upon
themselves to advocate and defend a defense attorney or their personal charac-_
ters. Its more to the point the DA is trying to protect their legal position
- and the defense attorney is left to their own designs. This brings more ques-
tions than it answers and applicant' objects to the personal nature of the
content and narratives contained within this affidavit about Ms6 Bella's

tireless character and efforts by District Attorney Lessor.

Specific objection number three;

Hearing Court failed to address the ten year plea bargin offered to appli-
cant plainly stating that the Court of Appeals did not task it with that spec-
ific request, and stating "If one even existed." this is pure negligence
by hearing court to fulfill its legal and ethical obligations as explained
in art 11:07 proceedings. The Court of Appeals plainly stated that hearing
court could investigate anything it felt pertained to the complaints contained
in applicants habeas. Two issues which are the crux of applicants complaint
of constitutional` denial,l) The indictments and 2) the failure of applicants
counsel to secure the ten year pleabargin signed by the ADA Mitchelli It
is ludicrous for hearing court to state "if one even existeda" It shows hear-
ing court did not even read applicants complaint as exhibit "A" clearly shows
a signed and agreed to ten year pleabargin offered by ADA Mitchelli The affi-
davit of Ms. Bella also tells of such offer and affidavit of DA Lessor also

speaks of a ten year pleaoffer,BUT the hearing court failed to ask real ques-

o

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tions as it pertained to "WHY" this offer agreedik§and signed by "BOTH" part-
ies was not pursued by defense counsel Ms. Bella througheaMotion For Specific
Performance which is well _known and practiced law. Ex parte Simms," When
a defendant successfully challenges a conviction obtained through a negoti-
ated plea of guilty,' the appropriate remedy is specific performance of the
plea aggreement. Stone Co. V Carminat$`3lViSkW;'52d at 78 " Contract implied
in fact rest upon consent and consent is essense of transactiona" Both parties
agreed to and signed this contract fog ten years.Ex parte Williams,637 SKW.
2d at 943,103 S.Ct. at 2458, " when a defendant agrees to terms of a plea-
bargin agreement he is deemed to have entered into the agreement knowingly
and voluntarilyi" Applicant admits he entered into the ten year plea-agreement
but was coerced _by District Attorney and applicants Trial Counsel for the
23 year deala

Hearing Court failed in its duty to investigate or ask questions as they
pertained to this ten year plea-agreement:hmmneither the DA or Ms. Bella.
Applicant filed an Objection with hearing court on this matter but was ignored
only stating "if one even existed J" One did exist and applicant request
Court of Appeals make specific ORDER with instructions for hearing court
to fully investigate this matter and ask questions as to _why Ms. Bella failed
to push this issue or to inform the court that DA Mitchell failed to uphold
an earlier plea agreement of ten years. Until this is done and this plea

bargin agreement of ten years is put into effect applicants due process rights

have been violateda Brady \/ United Statesi397.U.S.742/74890 S.Ctil463,1469,

 

Hearing Court states no harm has occurred in violation of Strickland V Washing
'ton. Nothing can be' further from the truth and established lawa The Supreme
Court has held that one more day in confinement than agreed to is considered a

harm. Applicant agreed to ten years and received 23,harm exist/applicant objects.

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II

coNcLUsIoN 01=" LAw

1) The facts contained within Ms. Bellals affidavitamnaconflicting at best.
Applicant WAS NOT charged with law of parties as WAS NOT Misty Gains or Willie
Alexandera It is ingenious for Ms. Bella to use this excuse to cover up her
ineffectiveness as counsel and then hearing court to aid her ineffective
performance with a "LIKELY BEEN FOUND ~GUILTY OF AGGRAVATED ASSAULT UNDER
THEv LAW OF PARTIES.". The fact is applicant WAS NOT charged as such and the
facts are as listed the hearing court ignored~within Ms. Bella's affidaviti

A) There were two good witnesses at the scene that night that gave clear and
convincing testimony that applicant was not the shooter and applicant was
not in the apartment until after the shooting,Ms.Torres and her son.

B) There was testimony witness statements that applicant looked scared as did
the others and statements that applicant begged the shooter to leave.

C) There was statements stating that the shooter Anthony Green threatened all
that was in the car with him that iftheyIHD NOT go with him he would shoot
them. .

D) Misty Gains WAS NOT a reliable witness against applicant and there was evi-
dence she perjured herself as the detectives notes and statements of that
night contradict what'Msa Bella,states in her affidavit.

Exhibit "C" writ application

l) Misty Gains took them to that apartment,page 2 bottom "G"

2) Gains statement admitted to stealing a pocket full of money, page 6 "G"

3) Gains admitted she got $l 500 and ran out of apartment, page 6 "G"

4) Misty Gains ran outside but to the car not away from the scene

5) Misty Gains statements were part of a plea-agreement for a lessor sen#
tence and had motive to manipulate her story and cannot be relied on.

E) There was more than enough evidence to create a plausable scenario of ’a
defensive theory of duress within the available resources to Ms. Bella.

F) The statements by the man that Anthony Green threatened to shoot outside
of the apartment while pointing a gun was evidence of Greens homocidal and
dangerous intent that night along with other statements of his drug induced
radical behaviors.

The problem with Ms. Bella's affidavit isitsnwre of hindsiteandof her ability
to explain away her poor performance as counsel; The fact is Ms. Bella DID

NOT have to prove anything but HAD TO create REASONABLE DOUBT sniithe law

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is clear on reasonable doubt 1 and that no reasonable jurist would covict
if there was not clear and convincing evidence. Ms. Bella failed to pursue
this as she had more than enough evidence to work with. See U.S. V Mathews,
178 F.3d at 295 (5th Circuit) " aggravated circumstances.and prove a reasonable
doubt or this violates due process rights,5th,6th,l4th U.S.C;A."'§yle,ll5 S.Ct.
1555, " beyond a reasonable doubt" and Murray V Carrier,477 U.S. 478,496, 106
S.Ct. at 2639, "The Court expressed confidence " for the most part " victims of
a fundamental miscarriage of justice will meet the cause-and-prejudice standard
particularly given the availability of ineffective assistance of counsel
claim. Success on the merits would give respondant all of the relief that

he seeks,i.e., resentencing." Brady V United States, miscarriage of justice.

2) Ms. Bella's affidavit shows more content of applicants moral turpitude and

stateing applicant stayed silent and less about her efforts,"ACTUAL" efforts *
to defend applicant. The truth is applicant DID WANT to go to trial as appli-
cant did want to go to trial especially since he was innocent of the charges
contained in the indictment and after Ms. Bella failed to secure the ten
year plea agreement. Ms. Bella's performance did fall below the standard
of reasonableness as she failed on two counts. l) she failed to attack the`
indictments and secure applicants innocence as how did Misty Gains after
admitting she took them to that apartment and then admitted she stole $ 1,500,
from the shooting victim only _receive 5 years ? and did not get indicted
same as applicant ? 2) Ms. Bella failed to secure the ten year plea agreement
after it was agreed to by ADA Mitchell and signed by both parties. Then later
coerce applicant through threats of a life sentence sign for 23 years verses
the original signed and agreed to ten year deal ? How is that effective or
reasonable ? The law is clear on that issue. Ex parte Welch,981 SLW.Zd at
183," Failure to know and use relevant law is not reasonable trial strategy ."`

Benjamin V State, 874 S.W.2d at l32i " State is bound to carry out its side of

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plea bargin or plea is involuntary, even if state never had authority to
ensure compliance with plea bargin." Even if ADA Mitchell did not have the
authority to carry out the ten year plea deal he offered and signed, the
State 'was obligated to carry it out by law and statute and Ms. Bella should
have` known this. Ms. Bella has tried to mask her failure to know the law
and the application thereof by making statements about applicant lying to-
her or\ staying silent. That does not absolve her of her legal responsibility
as being effective as counsel or protecting applicants Constitutional Rights
to Due Process. ,See Brady V United States, Ex parte Duffy,607 S.W.2d at
507,516,Ex parte Battle,817 S.W.2d at 81,83, Ruffin V State, 3 SiW.3d at 140 l
143, " guarantee .to effective assistance of counsel applies at the time a
defendant enters a plea to the charging instrument." Ms. Bella failed on
all accounts and the evidence supports this.Ms. Bella only had to prove reason-

able doubt and she failed in her performance securing the Strickland V Washing-

 

ton standard of harm and a different outcomei Applicant was harmed with a "23
year sentence and the outcome would have been a ten year plea bargin satisfying

the standards set by Stricklend V Washington, see exhibit "A" ten year plea.

 

3) The hearing court evades the facts with concern to Ms. Bella's failure
to secure applicants ten year signed plea-bargin and actually states "IF
ONE EXISTED ,i"» The hearing court excuses it away with the allegation is not
within the scope of the Court of Appeals order for this Court to conduct
fact finding on this issue. How can it not be within the scope as the order
plainly states that the hearing .court to make a finding to any relevant
issues that pertain to applicants complaint. The hearing court has rendered
aid to Msa Bella's failed performancs as trial counsel while representing
applicanta The evidence ~is clear see exhibit "A" in writ application. Its

ludicrous for hearing court to even state " IF ONE EXISTED" when it is part4

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of the exhibits attached to applicants writi There is more than enough evidence
to support applicants claims of duress. Hearing Court and Ms§ Bella both
bring a ‘statement made by applicant " It does'nt have to be like.that, I
got your .back." Applicant explains this statement was made to defuse Green
and to placate him from being defensive and dangerously agressive. Green
was a `proven shooter and had his gun threatening all of them and he would
kill them if_ they did not go along with him.The statements contained within
the exhibits and the affidavit of Ms. Bella also speaks of this knowledge
supporting applicants claims he was afraid .for his life and later afraid
of what Green would do to his family if released,thus his silence and mis-

dirrection with his attorney Msg Bella.

The truth is Misty Gains perjured herself for a plea-deal by actually
blamimg applicant for her own actions. Gains did not run away as explained
but went through. the victims pockets and removed $ 1,500 and then ran out
of the apartment straight to the car where she waited until they all left.
Hearing Court failed to hold Ms. Bella accountable for her failure to investi-
gate and to use well known law while representing applicant. and the evidence
contained in applicants writ of habeas supports that as fact and thats what
Court of Appeals requested was facts not excuses and plausable scenarios made

by well thought out written narratives based on hindsite.

PRAYER

Wherefore, premises considered, Applicant prays this Honorable Court consider
this response and either Grant Applicant a reversal and resentencing or Grant
Applicant his original ten year.plea-bargin@ If not then Applicant prays this
Honorable Court remand this cause back for rehearing on theseissues contained

within this pleading and Grant all relief applicant is entitled to5

)

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( continued from prayer )

Res ectfully submitted

/'?-um/MM§R 72593/</
§;;;i::::a;r:i;;is # 1752314

Ellis Unit, 1697 FM 980
Huntsville, Tx 77343

`DECLARA`TION

I OWEN PASCAL WILLIS # 1752314,declare under penalty of perjury, pursuant to

 

CPRC § 1323001, that I have read and subscribe to the above and I swear that
The information contained therein is true and correct to the best of my know-

ledge.

a l l b l
Executed on \ C)* ESF' \.IJ at the Ellis Unit, Hlntsvllle, Texas

_ @M MMF"“/?;ga/</

Owen Pascal Willis # 1752314
Pro se applicant

Ellis Uniti 1697 FM 980`
Huntsville, Tx 77343

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