Greer, David AKA David Duane Greer

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%5:32 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
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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
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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.
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siGNEii)the §§ day of \)‘~/ n ,2015.
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