McDonnel, Thomas Elton ( 2015 )

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July 8, 2015
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This document contains some
Court of Criminal Appeals pages thafare of poor quality
Clerk of Court at the time o~ Imaging.
P.O. Box 12308
Austin, TX 78711
RE: Original Appliaation Fo.r Writ of Mandamus
District Clerk, Harris County, Non-compliance/T. C. C. P. 11.07
Dear Honorable Clerk of Court:
Please find enclosed: (1) Original Application for Writ of
Mandamus, and (2) Exhibits "A" through "E".
Please forward the Mandamus with attached exhibits to the
Court for consideration and ~ulin.g. Thank you for your kind assist~
ance with this matter.
Respectfully Submitted,
RECEIVED IN
COURT OF CR!~tNAl APPEALS
tm~· ~-McDannel
TO~E.
f/h~ JUL 13 2il15
TDCJ-ID #1562227
Wayne Scott Unit
6999 Retrieve Rd.
Angleton, TX 77515
IN THE
COURT OF CRIMINAL APPEALS
AUSTIN, T Ex·A S
THOMAS E. McDONNEL.
TDCJ-ID 11562227
RELATOR
v •
HARRIS COUN.TV DISTRICT CLERK
CHRI S DANI E L :·:
IN HIS OFFICLAL CAPACITY
RESPONDENT
CAUSE NO~ 1131353-B RECEIVED IN
COURT OF CRIMINAL APPEALS
24Bth JUDICIAL COURT OF
JUL 13 2u15
HARRIS COUNTY, TEXAS
Abet Acc.st.a, Clerk
ORLGINAL APPLICATION FOR WRIT. OF MANDAMUS
TO THE HONORABLE JUDGE .OF SAID COURT:
·coMES NOW, THOMAS E. McDONNEL, ·Rel·ator; pro se in the above
styled and numbered cause of action and f~les this Original Appli-
cation for Wri~ of Mandamus, pursuant to Art±cle 11.07 Section
3(c) of the Texas Code of Criminal ~rocedure (T.C.C.P.), and would
show the Court the following:
I.
Thamas E. McDannel, TDCJ~ID J1562227, is an offender incar-
cerated in the Texas Department of Criminal Justice and is a~pear­
ing pro se, who can be located at the Wayn~ Siott ~nit, Brazoria
·County, Texas 77515. Relator ha.s exhausted his. remedies and has no
other adequate remedy at law.
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I
The act sought to _be compelled is miniater~al, not discretion-
ary in nature. T.C.C.P. Art. 11.07, §3(c) requires Respondent to
immediately transm.it to the Court of Criminal Appeals a copy of'.
the appli~ation for writ of habeas corpus, any answers filed, and
a certificate raGiting ths date upon which that finding was made,
if the convicting court dec~des that thers were nd issues to be
resolve.d. No copy ·of the applicatimn fmr writ of habeas corpus,
any answers filed, Bnd a certificate reciting ths date upon which
that finding was made has·been transmi.tted to the Court of Criminal
Appeals by Respbndent as required by statute~ Relator would have
received notice fram the. Cnurt of Criminal Appeals had Respondent
done so.
II.
Responden:t, Chris Daniel;::, in his official capacity as Dis-
trict Clerk of Harr.is County, Texas, has ~ ministerial duty to re-
ceive and file all papers in a cr±minal proceeding, and perform
all other duties imposed on the cl~rk by law pursuant to T.C.C.P.
Art . 2 . 21 , a n d is . res pons i·b 1 e. under T . C . C . P . Art . 11 . 0 7 , § 3 ( c ) to
immediately transm±t to the Court of Criminal Appesls a copy of
the application for writ of habeas corpus, any answers filed~ and
a certificate reciting the date upon which the finding was made if
the convicting court decides that ·there are no issues to be re-
solved. Chris Daniel~, District Clerk, Harris County mBy be served
at his place of business at 1201 Franklin St., Houston, Texas
77002.
III.
VI 0 LAT I 0 N 0 F ART I CLE 11 . 0 7 0 F T HE T EXAS
CODE OF CRIMINAL PROCEDURE
The Respondent ·violated·11.07, §3(c) of the T.C.C.P. by fail-
ing to provide a copy nf the application far wri.t of habeas corpus,
any answers fil.ed, and a certificate reciting the date upon which
that f.inding was made to the Court of Crimina~ Appeals within the
tims prescribed by law and within a reasonabl8 time from the date
on which the documents were required to be transmitt~d.
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Requests for the tr~nsmittal of the application for writ of
habeas corpus, and any an~wsrs filed, and a c.ertif±cate reciting
the date upon which that finding was made were made to Chris
Daniel~;, District Clerk, Harris County, in the following ways:
( 1 ) in the form o f a motion , . ,"5 tate s 0 r de r to Com p l.y " , ( Exhibit " A" )
submitted by Rel.ator on January 10, 2012; (2) in the form of a
motion, "To Compel Coinpliance 11 (Exhibit "8"), submitted by Relator
on Apr i 1 01 , 2 01 3 ; ( 3) in the form of a motion ; "For a Live P l·e n-
ary Evidentiary Hearing" (Exhibit "C"), submitted by Relator on
October 09, 2014; (4) in the form of a motion, "To Have Previous
Motions Ruled On" (Exhibit 11 0 11 ); and in the form of a letter dated
July 17, 2015 to Chris Daniei~ making one last requ~st for his
compliance with Art. 11.07, §3(c) and notif.ying him of Relator's
intent to file this Mandamus if Relator does not receive notice
that the Court of Criminal Appeals has received a copy of the
application for writ of h.abeas corpus·, any answers filed, a certi-
ficate. reciting the date upon wh~ch that finding wa~ made, and any
attachinsnts filed with rir after the filing of the application.
(Exhibit "E").
To date, the Relator has received no response from Respondent
regarding Relator's request for transmittal of a copy of the appli-
cation for writ of habeas corpus, any answers filed, and a certif-
icate reciting the date upon which that finding was made to the
Court of Criminal Appeals. Nor ·has Relator been notified of any
......
[·
resolutions to the trial court's designated issues.
As is clear from all of the Relator's motions and final let-
ter, Relator has repeatedly put Respondent on notice that Relator
seeks the resolving of the designated issues and the transmittal
of a copy of the application for writ of habeas corpus, any answers
filed, and a certificate reciting the date upon ~hich the finding
was made'to the Court of Criminal Appeals and that such records
are required by the Court of Criminal Appeals to act on Relator's
writ of habeas corpus. Relator has gone well beyond any requirement
or obligation imposed. upon him by the T.C.C.P. In contrast to the\
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Relator's efforts, Respondent has wholly faiLed to ~omply with the
T.C.C.P. Article 11.07, §3(c), is acting in bad faith, and has
also failed to afford Relator the professional and common courtesy
of any written response to his correspondence and motions.
Article 11.07, §3(c) clearly states that "·[i]f the convicting
court decides that there are no such issues, the c~erk shall imm-
ediate.ly transmit [emphasis added] to the Court of Criminal Appeals
a copy of the application, any answers filad, and a 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." T.C.C.P. Art. 11.07, §3(c). In this particular case, the
court did make a finding of fact. However, i t has been almost four
(4) years since Relator has filed his original application and
approaching two (2) years since he filed the amended application.
Certainly time has passe.d for allowing the trial court to resolve
Relator's issues, and Respondent is well past due in complying
with Art. 11 .07, 13(c). Respondent .is in violation of this proce-
dure, minister.ial duties, and thus the laws of the State.
IV.
REQUEST FOR LIVE EVIDENTIARY HEARING
Relator has already submitted a motion for a "Live Plenary
Evidentiary Hearing" on October 09, 2014 (Exhibit "E") which the
trial court either f~iled to rule on or failed to provide Relator
with a copy of its ruling. Therefore, Relator is requesting this
Court either order the trial court to hold a Live Evidentiary
Hearing and finally resolve Relator's issues (the cou~t's findings
of facts) or to hold its own Live Evidentiary Hearing once the
Respondent complies with this Court's ruling anrl sends a copy of
the application, any answers filed, and a certificate reciting the
date upon which that finding was made. The necessity for this Live
Evidentiary Hearing is great because the convicting Judge (Joan
Cam be 11) is no 1 on g e r p r·a c tic in g at the 2 48th 0 is t ric t Court . A
new Judge, Kathrine Cabanis, is presidi~g and she is not familiar
with the case or the finding of facts made by the previous judge.
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PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, Relator, Thomas E. McDannel,
pro se, respectfully requests a finding that the Respondent did
not transmit the documents to the Court of Crimirial Appeals within
a reasonable time after the date they werB required to, and re-
quested to, and that the Relator ~rought this litigation in good
faith and has substantially prevailed. Relata~ prays for an ORDER
directing the Respondent to transmit a cop,~of the application
far writ a f habeas c o.rp us , any answers f i 1 e d , and a c e r t if i cat e
reciting the date upon hlhich that finding was made to the Court of
Criminal Appeals as di~ected in ArticlE 11.07 Section 3(c) of the
Texas Code of Criminal Procedure and as requested in Relator's
motions and letter previously sent to Respondent (Exhibits A
through E). Further, Relator prays this Honorable Court to make
and ORDER directing th.e trial court to hold a Live Evidentiary
Hearing if this Court simply ORDERS for the trial court to resolve
the findings of facts and issues. Or, conversely, Relator prays
this Court to hold its own Live Evidentiary Hearing once the Re-
spondent has complied with Article 11.07 Section 3(c).
Respectfully Submitted,
zLISTRI
----,:;;k``:di---
§ OF
THOMAS ELTON MCDONNEL, § HARRIS COUNTY, TEXAS
Applicant
STATE'S PROPOSED ORDER DESIGNATING ISSUE
AND FOR FILING AFFIDAVIT
Having considered the application for writ of habeas corpus in the above-captioned cause
and the State's original answer, the Court finds that the issue of whether the applicant was denied
effective assistance of counsel still needs to be resolved in the present case.
Therefore, pursuant to Article 11.07, §3(d), this Court will resolve the above-cited issue
and then enter findings of fact \
To assist the Court in resolving these factual issues, counsel Mary toore is ORDERED
to file an affidavit summarizing her actions as counsel for the applicant in the primary case,
cause number I i31353, and specifically responding to the following:
1. Please outline how counsel investigated the applicant's case. Wias the investigation
limited in any way? If so, please explain why.
2. Was counsel aware of the applicant's lack of a criminal background or prior arrest
history? Was there anything in particuiar about the applicant's lack of criminal
background or prior- arrest history that counsel used at trial or believes would have
been beneficial and admissible at trial that she failed to employ at trial? If so, please
explain why.
3. Does counsel believe that she had a finn grasp of the facts surrounding the applicant's
case at the time of trial? Was counsel ready for trial?
4. Please indicate if the applicant brought any potential witnesses to the attention of
counsel that. counsel chose not to interview. If there are any such witnesses, please
explain why no interview was conducted.
I
5. Was counsel aware of any witnesses that would have been beneficial or necessary to
the defense of the applicant that she failed to interview or call at trial? If so, please
explain why. :
1
6. Please indicate the nature of any grievances that the applicant filed with the State Bar
against counsel prior to trial, and please include copies of any such grievances or
responses to such grievances that are available.
7. Does counsel believe that any grievances that the applicant filed with the State Bar
affected her representation of him at trial in any way? If so, please explain how.
8. Please indicate whether counsel believes that any actual conflict of interest existed
between herself and the applicant as a result of any grievances filed by the applicant
with the State Bar.
9. Please indicate whether counsel felt it would have beenbeneficial or necessarj tc file
a motion for discovery or a motion to suppress evidence in the applicant's case.
Please explain why or why not.
Mary Moore is ordered to file said affidavit with the Appellate Division of the District
Clerk's Office, 1201 Franklin, Third Floor, Houston, Texas 77002, within THIRTY DAYS of
the signing of this Order.
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The Clerk of the Court is ORDERED to send a copy of this Order to the applicant and to
the State, and to serve copies of this Order, the application, and the memorandum supporting the
application on attorney:
Mary Moore
1314 Texas St., Suite 1600
Houston, TX 77002
When the affidavit of Mary Moore is received, the Clerk is ORDERED to send a copy of
said affidavit to the applicant, Thomas Elton McDonnel, #1562227 -Wayne Scott Unit, 6999
Retrieve Rd., Angleton, Texas 77515 and a copy to the attorney for the State, Kevin Keating, 1201
Franklin, Suite 600; Houston, Texas 77002.
2
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Cause No. 11313 53-)( i3
EX PARTE § IN THE 248th DISTRICT COURT
§ OF
THOMAS ELTON MCDONNEL, § HARRIS COUNTY, TEXAS
Applicant
. CERTU~ICATE OF SERVICE
· The undersigned counsel certifies that I have served a copy of the ".State's Proposed
OrJu- {)e-'~5"'~-~;I'-S"'e. -"'~ ~ ... F,"/i'n.!l Aff'c.\ov ;.J--
Findings of Fad, Cgaell:lsiefts ef lam, and Onief" in cause number 1131353-B to the applicant
on January 10, 2012 by mail as follows:
Thomas Elton McDonnel·
#1562227- Wayne Scott Unit
6999 Retrieve Rd.
Angleton, Texas 77515
k:-~
Kevin P. Keating ..
Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002
(713) 755-6657
Texas Bar ID #00787813
FILED
Chris Daniel
District Clerk
JAN 1 0 20\2
4
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The Clerk of the Court is ORDERED NOT to transmit at this time any documents in the
above-styled case to the Court of Criminal Appeals until further ordered by this Court.
By the following signature, the Court adopts
the State's Propo d Order for Filing Affidavit.
Signed day of 2011.
JAN f.7 2012
3
l.
EXHIBIT "8"
- Motion: To Compel Compliance -
. "' '
Thomas E. McDannel
Wayne Scott Unit
6999 Retrieve Rd.
Angleton, TX 77515
April 1, 2013
Attorney General
Harris County Clerk
Attorney Moore
Re: Filing of Motion
Cause: 1131353-8
Greetings,
Enclosed you will find the MOTION TO COMPEL COMPLIANCE WITH
STATE'S PROPOSED ORDER DESIGNATING ISSUES AND ORDER FOR FILING AF-
FIDAVIT. Included is the Court's Copy, Clerk's Copy, Attorney Ms.
Mary Moore Copy mailed to 1314 Texas Street, Ste.,#1600 Houston,
Texas 77002 and Attorney General Greg Abbot, Post Office Box 12548
Austin, Texas 78711-2548.
Enclosed you will also find my self addressed & stamped enve-
lope for return of the filemark, date and stamped copy for my per-
sonal records in this action before the Court.
Thanking this Honorable Clerk's Office for your timely attent-
ion to this most important legal matter.
Respectfully Submitted,
-`` z. ~C/~'M/
Thomas Elton McDannel
TDCJ-ID #1562227
cc: AG Greg Abbot
Attry M. Moore
CAUSE NO: 1131353-8
THOMAS E. McDONELL § IN THE DISTRICT COURT
vs. § 24BTH JUDICIAL DISTRICT
STATE OF TEXAS § HARRIS COUNTY, TEXAS
MOTION TO COMPEL COMPLIANCE WITH STATE'S
PRO~OSED ORDER DESIGNATING ISSUES
AND ORDER FOR FILING AFFIDAVIT
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, Thomas E. M~Donnell, hereinafter referred as Movant,
proceeding in own beb~lf pro-se, pursuant to the Texas Code of Cri-
minal Procedure, Article 11 .07, § 3(d), in above listed cause and would there-
fore show this Honorable Court the following facts:
I.
Movant previously has filed a Texas Code of Criminal Procedure
11.07 Application for Writ of Habeas Corpus with this Court on the
7th day of September, 2012. This. Court issued State's Proposed Ord-
er Designating Issue And For Filing Affidavit from Mary Moore whom
previously represented movant in this Trial Court as his attorney.
This Order contained issues of fact and was certified on Jan 17,12.
Copies were mailed by this Court's Clerk pursuant to rule going un-
answered by said attorney indefinitely.
II.
Movant did, after said delay in answer from Mary Moore, file a
Motion To Compel. Compliance With Court Order on the 29th of Novem-
ber 2012 and placed into the unit United States Mailbox with proper
certificate of service dated and signed by movant. Said motion did
contain movant's filemark copy with sef addressed and stamped en-
velope for return to movant. Movant never received said filemark
copy from this Court's Honorable Clsrk's Office. It is now been
(1 of 3)
approximately six months with no reply from Mary Moore.
III.
Movant requests that upon attorney Mary Moore's compliance to
State's Proposed Order Designating Issue And For Filing Affidavit
is received by this Honorable Court and Clerk's Office that a com-
plete copy of said answer be forwarded to movant/applicani.
PRAYER
WHEREFORE, PREMISES CONSIDERED, movan.t prays that this Honorable
Court will demand compliance with its ORDER previously issued and
with all things considered in the interest of justice and grant
this pleading.
Respectfully Submitted,
1~£.mcMJ
Thomas E. McDonnel,prose
Wayne Scott Unit
6999 Retrieve Road
Angleton, Texas 77515
(2 of 3) Attached Certificate of Service
CERTIFICATE OF SERVICE
I, HEREBY CERTIFY, that on this 1 day of April 2012, a true and
correct copy of this above and foregoing MOTION TO COMPEL COMPLI-
ANCE WITH STATE'S PROPOSED ORDER DESIGNATING ISSUES AND ORDER FOR
FILING AFFIDAVIT was placed into the Texas Department of Criminal
Justice - Institutional Division Wayne Scott Unit internal United
States Mail System out-going-box, with proper postage attached,
for delivery to the Harris County Criminal Judicial District Clerk's
Office at Post Office Box 4651 Houston, Texas 77210 - 4651, as
well as copy to attorney Ms. Mary Moore at 1314 Texas Street in
Suite #1600 Houston, Texas 77002.
R~spectfully Certified,
./
J~£~eu/.
Thomas Elton M~Donnel
Wayne Scott Unit
6999 Retrieve Road
Angleton, Texas 77515
(3 of 3)
CHRIS DANIEL
HARRIS COUNTY DISTRICT CLERK
October 28, 20 13
THOMAS ELTON MCDONNEL # 1562227
WAYNE SCOTT UN IT
6999 RETRIEVE RD
ANGLETON, TX 77515
To Whom It May Concern:
Pursuant to Article ll.07 of the Texas Code of Criminal Procedure, please tind enclosed
copies of the documents indicated below concerning the Post Conviction Writ filed in
cause number 1131353-B in the 248th District Court.
D State's Original Answer Filed
D Affidavit
[ZJ Court Order Dated October 25, 2013
D Respondent's Proposed Order Designating Issues and Order For Filing Affidavit.
D Respondent's Proposed Findings of Fact and Order
D Other
sf·~.c~q
.·
,l
R~. · a Garcia, Deputy
Criminal Post Trial
rg
Enclosure(s)- AMENDED ORDER TO FILE AFFIDAVIT FOR MS. MARY MOORE
120 I FRANKI.IN • P.O. BOX 4651 • HOUSTON. TEXAS 77210-465 I • (888) 545-5577
PAGE I OF I REV: 01-02-04
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->:2~. :;u co, 0<¥~"?1c, C.~se No. 113 13 53-B
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EX PARTE '<:~\~.;·;,... ``? § IN THE 248 1h DISTRICT COURT
~., ......
(~;,·~,..
..``' ... :;;.,
·'·"•:,, ~ § OF
THOMAS ELTON
Applicant
MCD``
([j'
§ HARRIS COUNTY, TEXAS
AMENDED STATE'S PROPOSED ORDER DESIGNATING ISSUE
AND FOR FILING AFFIDAVIT
Having considered the application and supplement appli;;,ation fur vvrit of habeas corpu5 in
the above-captioned cause and the State's original answer, the Court finds that the issue of whether
the applicant was denied effective assistance of counsel still needs to be resolved in the present
case.
Therefore, pursuant to Article 11.07, §3(d), this Court will resolve the above-cited issue
and then enter findings of fact.
To assist the Court in resolving these factual issues, counsel Mary Moore is ORDERED
to tile an affidavit summarizing her actions as counsel for the applicant in the primary case,
cause number 1131353, and specifically responding to the following:
I. Please outline how counsel investigated the applicant's case. Was the investigation
limited in any way? If so, please explain why.
2. Was counsel aware of the applicant's lack of a criminal background or prior arrest
history? Was there anything in particular about the applicant's lack of criminal
background or prior arrest history that counsel used at trial or believes would have
been beneficial and admissible at trial that she failed to employ at trial? If so, please
explain why.
3. Does counsel believe that she had a firm grasp of the facts surrounding the applicant's
case at the time of trial? Was counsel ready for trial?
4. Please indicate if the applicant brought any potential witnesses to the attention of
counsel that counsel chose not to interview. If there are any such witnesses, please
explain why no interview was conducted.
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'L-i IJ U r·~i
5. Was counsel aware of any witnesses that would have been beneficial or necessary to
the defense of the applicant that she failed to interview or call at trial? If so, please
explain why.
6. Please indicate the nature of any grievances that the applicam filed with the State Bar
against counsel prior to trial, and please include copies of any such grievances or
responses to such grievances that are available.
7. Does counsel believe that any grievances that the applicant filed with the State Bar
affected her representation of him at trial in any way? If so, please explain how.
8. Please indicate whether counsel believes that any actual conflict of interest existed
between herself and the applicant as a result of any grievances filed by the applicant
with the State Bar.
9. Please indicate whether counsel felt it would have been beneficial or necessary to tile
a motion for discovery or a motion to suppress evidence in the applicant's case.
Please explain why or why not.
I 0. Please indicate whether counsel "opened the door" to Applicant's extraneous offense
on cross-examination of the State's witnesses. If so, please state counsel's trial
strategy for "opening the door" to Applicant's extraneous offense.
11. Please indicate whether the State commented on applicant's failure to testify during
closing argument. If the State commented on applicant's failure to testify during
closing argument, did counsel object and preserve the issue for appeal? If the State
commented on applicant's failure to testify during closing argument and counsel did
not object and preserve the issue for appeal, please state counsel's strategic reasons
for doing so.
Mary Moore is ordered to file said affidavit with the Appellate Division of the District
Clerk's Office, 1201 Franklin, Third Floor, Houston, Texas 77002, within THIRTY DAYS of
the signing of this Order.
The Clerk of the Court is ORDERED to send a copy of this Order to the applicant and to
the State, a;1d to serve copies of this Order, the application, and the memoranJum supporting the
application on attorney:
Mary Moore
1314 Texas St., Suite 1600
Houston, TX 77002
2
When the affidavit of Mary Moore is received, the Clerk is ORDERED to send a copy of
said affidavit to the applicant, Thomas Elton McDonnel, #1562227- Wayne Scott Unit, 6999
Retrieve Rd., Angleton, Texas 77515 and a copy to the attorney for the State, Aimee Bolletino,
1201 Franklin, Suite 600; Houston, Texas 77002.
The Clerk of the Court is ORDERED NOT to transmit at this time any documents in the
above-styled case to the Court of Criminal Appeals tmtil further ordered by this Court.
By the following signature, the Court adopts
3
Cause No. 1131353-B
EX PARTE § fN THE 248 1h DISTRICT COURT
§ OF
THOMAS ELTON MCDONNEL, § HARRJS COUNTY, TEXAS
Applicant
CERTIFICATE OF SERVICE
The undersigned counsel certifies that I have served a copy of the "State's Proposed
Order Designating Issue and for Affidavit" in cause number 1131353-B to the applicant on
September 30, 2013 by mail as follows:
Thomas Elton McDannel
#1562227- Wayne Scott Unit
6999 Retrieve Rd.
Angleton, Texas 77515
'-~
Aimee Bolletino
Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002
(713) 755-6657
Texas Bar ID #2405671 7
4
EXHIBIT 11
C"
- Motion: For a Live Plenary Evidentiary Hearing -
CAUSE NUMBER
1131353-B
EX PARTE § IN THE 24BTH DISTRICT
THOMAS E .. McDONNEL § COURT OF
Applicant § HARRIS. COUNTY, TEXAS
APPLICANT'S MOTION FOR A LIVE PLENARY
EVIDENTIARY HEARING
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, Thomas E. McDannel, Petitioner prose in the above
numbered and styled cau~e and files this motion for a Live Plenary
E vide n.t i.a r y Hearing and Bench Warrant, pursuant to art. 11 . 0 7 of
the Tex.Code. Crim. Proc. and will show the Court as followed:
I.
A. Petitioner
1 . 01 Thomas E. McDonrrel, TDCJ-ID #1562227, is an offender
incarcerated in the Texas Dep.t. of Crim. Justice (TDCJ) and is
prose, who can be located at the Wayne Sco.t·t Unit, 6999 Retrieve
Rd., CR 290, Angleton, Texas 77515.
1 . 02 Petitioner has repeatedly petitioned this Court to ·act
on Petitioner's 11.07. Petitioher requests the Court to take ju-
dicial notice of the District Clerks file on the above cause num-
ber and obtain motions and inquiries asking that the issues be
resolved.
1.03 The previous presiding judge, Judge Cambsll, did in
fact order the· Court Clerk .not to transmit any doc u me.n t s in the
above styled case until further notice due to the fact that there
were issues to be resolved by this said Court.
1 . 04 The defense c.ounsel, Attorney· Mary Moore, was issued a
notice to answer by affidavit the questions set forth in the Peti-
tioner's 11.07 Writ of Hab~as Corpus. The defen~e attorney has
been issued several notices to answer ths aforementioned affidavit.
To this date the Petitioner has not received a copy of the affi-
davit nor has any of the documents been tran~mitted to the Court
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..
of Criminal AppealB" If the~e.ab.ove styl~d documents had been
t r a n s mi t t e d . t o t h e Co u r t . o f Cr i mi n a l Ap p e a.l s· , t h e . P e t i t i o n e r wo u l d
have- been notified.
The. State, Feder~l and Supr.eme Court case.- law_ mandates that
when an. applicant. files a. collateral attack on ··his criminal con-
viction , t h.e initial task is . to. ·de t.e.r mine whet h e.r his allegations
if proven would establish the right to HabeEs ~elief. If so proven,
he is:enti~led to .an evide~tiary hearing to further develop the
factual .. basis w~th facts outside the record. Ex Parte Reyna, 702
S . W. 2 d 9 21 ( T x . Crim . Ap p . 1 9 8 6) ; Streetman v . 'Lv n aug h , 81 2 F. 2 d 9 50
( 5th Ci r . ) ; Towns e_nd v . Sa in , 3 7 2 U . S . 2 9 8 , 3 0 7 , 8 3 S ..Ct . 7 4 5 ,
9 L. Ed. 2d 770 (1963).
II.
Applicant asse.rts (inter alia) .constitutional ineffectiveness
of trial counsBl, prosecutorial misconduct, ~nd error of the trial
court. In seeking th~ instant Live Plenary Evidentiary Hearing to
prove these assertions, Applicant has need to develop facts that
are presently outside the record. It will be impossible for this
Honorable Court to adequately determine the merits of Applicant's
claim without· further develop me n.t of these facts that are outside
the record. The need to fully develop the record is of the utmost
importance because the Court of Criminal Appeals will be .limited
to the record as it was developed within; the trial court. Galvin
v. State, 869. S.W.2d 526, 527-29 (Tx.App. - Corpus Christi 1993).
As the record now stands, it is totally inade.quate for the Court
to perform its .required duty.
I
I I I I.
Inordinate- Delay:
1 . 01 The Court , the ·.District Attorney , and . the Petitioner ' s
defense counsel, Mary Moore, ·have wholly failed to comply with
article 11.07 df the Tex.Code Crim.Proc., are actin~ in bad faith
and have not afforded Petitioner with profes&ional and common cou-
rtesy at resolving these issues in Petitioner's 11.07 as so order-
-2-
.'
ed by the previous judge.
1 . 02 Wilwording v. Swenson, 92 S. Ct. 487 at. 249-250 (rejecting
suggestion tha.t Sta.te prisbner should have invoked any other poss-
ible alternative to state habe~s. including a suit for injunction,
a writ of prohibition, or mandamus or declaratory judgment in
State's court o~ perhaps ot~er relief under State Administratio~
Procedure Act.). In Turner v. Bagley, 401 F.3d 718 {6th Cir. 2005)
28 U.S.C. 2243 confers Federal Courts with the discYetion to dis-
pose of Habeas Corpus matters and tailor remedies as law and jus-
tice requires.
CONCLUSION
The Petitioner has shown this Court that under the Sixth Amend-
ment of the. United States CO,nstitution he has been denied the
right to effective assistance of counsel as·well as dus process of
la~. The District Court has deni·ed.Petitioner due process of law
by delaying to rule on his 11.07 Writ of Habsas CorpuB. As a prose
litigant, Petitioner respectfully asks this HDnorabla Court to
grant his motion for A Live Ple.nary Evidentiary Hearing.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Petitioner prays that this
~otion will b.e. granted, a bench warrant issuerl, and a ruling be
is~ued that have been filed in the cause number and grant Petition-
er any other orLadditional reLief he is justly entitled to, it is
so prayed.
-3-
• 0
CERTIFIC.ATE OF SERVICE
I hereby ce~tify that a true. copy of th.e foregoin~ instrument
wa~ served to the District Court Clerk by placihg a. copy in the
U.S. mail addressed to:
Harris County;Courthouse
248th District Court
1201 Franklin St., 16th Floor
Houston, Texas 77002
EXECUTED on the day of 2 01 4.
Thomas E. McDannel Respectfully Submitted,
zL``
#1562227
Wayne Scott Unit
6999 Retrieve Rd., CR 290
Angleton, Texas 77515 T4lomas E. McDannel
-4-
EXHIBIT "0"
- Motion: To Have Previo~E Motions Ruled On -
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Chris Daniel "i:. ':~ Oc!;..rJ~,·
Ha r r i s Co u n t y Di s t r i c t Cl e r k :r,..-1'>' /..> '1:>-f}:~j``
4 6 51
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Nov ember 21 04 ~b.
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VY
RE : Mo t i o n P u r s u a n t t o F e d e r a l Ru l e s o f Ci v i l P r o c e d u r e Ru 1 e 7 2 . \~b~-
To have motions ruled on: ~
'~ Ch r i s Da n i e 1 11
Dear Sir:
I have enclosed a motion for ruling according to Fed. Rules of
Civil Proc. Rule 72, for filing with your office and also to be
considered by the 248th Judicial District Court Judge Katherine
Cabanis presiding. I have a self-addressed stamped envelope to be
returned unto me with this coverletter, requesting that you please
file date stamp it and return to me using said envelope showing that
this motion was presented to said Court and Judge presiding.
Your cooperation, time and patience is greatly appreciated.
Thank you.
Thomas E. McDannel #1562227
Wayne Scott Unit Respectfully Submitted,
6999 Retrieve Rd.
Angleton, Texas 77 51 5
Thomas E. McDannel
Date: November ,2014
C/C
Filed:
....
Cause Nos. 113153-B &
Ex Parte §
------Tliomas E. McDannel §
§
PtAINTIFF MOTION PURSUANT TO FEDERAL RULES OF CIVIL
RULE 72. TO HAVE HIS NUMEROUS PENDING MOTIONS RULED ON:
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, Thoma~ E. McDannel, Plaintiff herein, proceeding
Pro se and in support of this motion will show this Honorable Court
the following:
I.
p 1 ai n t i f f. i s . e n t i t l e d to have mo t i o n s r u l e d on t h a t ate ·no t
dispositive of the entire Cause of Action. See Fed. R. Civ. Rule 72;
"Non-dispositive Matters. When a pretrial matter not dispositive of
a parties claim or defense is referred to a trial Judge to hear and
decide, the trial Judge must promptly conduct the required proceed-
ings and when appropriate, issue a written order stating the deci``
sian. A party may serve and file objections within 10 days after
being served with a copy."
II.
Plaintiff has the following motions pending for which he is
now seeking a ruling:
1 .) Plaintiff's Application of Writ of Habeas Corpus Cause No.
113153-B wherefore Assistant District Attorney for Harris
County and said Court designated issues on the date of
February 14, 2011. "Applicant was denied the effective
assistance of counsel.'' Controverted praviously unresolved
facts material to the leqalitv of ApplicaMt's confinement
and needs to b~ resolved.
2.) ?laintiff's motion for a Live Plenary Evidentiary Hearing,
filed on October 9, 2014.
-1-
\~
PRAYER:
WHEREFORE, premises considered, Plaintiff prays that this motion
-----G:ri-rrBe gran'fed and thereafter a ruling be issued on each motion that
has been filed in these causes, and grant Plaintiff any other or add-
itional relief he is justly entitled to, it is so prayed.
CERTIFICATE OF SERVICE:
Service has been accomplished by mailing a true and correct
copy of the following forgoing instrument to the following address:
Chris Daniel
Harris County District Clerk
P.O. Box 4651
Houston, Texas 77210-4651
Executed on this day of I~ November 2014, under both Fed-
eral Law (28 U.S.C. §1746~ and State Law CV.A.C.C. Proc. & Remedies
Code §132.001-132.003).
Respectfully Submitted,
'7 `` t[ lv 0~.__/'
Thomas E. McDonnel
TDCJ-ID #1562227
Wayne Scott Unit
6999 Retrieve Rd.
Angleton, Texas 77515
-2-
EXHIBIT "E"
-Letter: Inquiry and Notice to File Mandamus.-
4,
June 17, 2015
Harris County Courthouse
Clerk o~ Court - Chris Daniels
1 201 Franklin St.
Houston, TX 77002
RE: Writ of Habeas Corpus Application
Cause No. 11 31353-B
Dear Honorable Clerk Da~iels:
I am writing to you because you have not complied with Article
11.07, §3 (c) of the Texas Code of Criminal Procedure. On August 31,
2011, I filed my original 11.07 hlrit of Habeas Corpus Application.
The Court designated. issues, but then ~L\.•did not hear any·thing after
that. So, on January 10, 2012 I filed. a 11 State 1 s Order· to Comply 11
motion with the court • Then on Apr i 1 1 , 2 01 3 I f i 1 e d · a motion 11 To
Co mp e 1 Co mp 1 i a n c e 11 wi t h t h e Co u r t . I t h e n f i 1 e·d a n Am e n d e d 1 1 . 0 7
Writ of Habeas Corpus with the Court on 09-25-2013. On October 9,
2 0 1 4 I f i 1 e d a mo t ion 11 For a Live P 1 e n a r y · Ev i de n .t i a r y H·e ar in g 11 • An d
finally on November 17, 2014 I filed a motion 11 To Have Previous
Motions Ruled On 11 •
To this date, my motibns hav~ not been ruled on (if they have
then I have not been provided with a copy of the ruling) and my
11.07 Writ of Habeas Corpus Application has not been forwarded to
the Court of Criminal Appeals.
Per T CCP 11 . 0 7 , § 3 ( c ) , you are required to immediate 1 y .trans-
mit to the Court of Criminal ~ppeals a copy of the applic~tion, any
answers filed, and a certificate. reciting the date upon which that
finding was made, if the convicting court decided that there were
no issues to be .resol.ved. In my ·c.a•se.,·,··ther'eo.were.:is"SUes~·:designated
to be resolved. In that case, I believe. you are given 180 days to
resolve the issues and if you (the Court) has not, then you, Clerk
Daniels, are required to immedicately send the above listed ite~s
to the Court of Criminal Ap~eals. You have faile~ to do this. Since
my original. Application was mailed to you, it has been almost four
(4) years and since the Amended Application was sent it has been
just over one and a half years. It' is beyond time to send every-
thing to the Court of Criminal Appeals. It is to the point now where
you are acting in bad faith.
This letter is to serve two purposes. The first, is to request
o n e 1 a s t t i me f o r y o u t o f u 1 f i 11 y o u r d u.t y a s t h e Ha r r i s Co u n t y
Clerk, and mail my 11.07 Application, any answers filed, the cert-
ificate reciting the date upon which the findings were made, exhibits,
and r~ason for untimely delay in doing. so to the Court of Cri~inal
Appeals. The second purpose, is to.inform you that I will be filing
'
a Writ of M.andamus to the Court of Criminal Appeals if I do not
receive notiGe from.them within 14 business days of this letter
that you have transmitted to them.all the a.ppropriate doc~ments.
'.
It is my understanding that the convicting Judgs, Judge Cambell,
i s n o 1 o n g e r t h.e r e a n d t h a t Ho no r a b 1 e J u d g e Ka t h r i n e Ca b a n i s i s
the sitting judge at this time. It was for this Very reason that
I submitted my motion for a Live. Plenary Evidentiary Hearing.
I have enclosed a ~ASE for the purpose of sending me a file
ma r k e d I d a t e s t am p e d c o p y t o me .s h o wi n g y o u r .r e c e i p t o f t·h i s 1 e t t e r
and notice of intent tb file a mandamu·s. Also~enclosed, inside the
SASE , is the first page copy of this 1 e t t e r for you · t·o use in f i 1 e
marking/date stamping. I appreciate your timely response to this
matter and pray that you will follbw the rules ~rovided in TCCP,
11.07, §3(c). Thank you.
Sincerely,
~L~,WJ/
Thomas E. McDannel
TDCJ-ID #1562227
Wayne Scott Unit
6999 Retrieve Rd.
Angleton, TX 77515
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