Court of Criminal Appeals

PO Box 12308

Austin, Texas 78711-2308

RE: EX PARTE JAMES MICHAEL BEATTIE

N0(S): WR-84,053-01; -02; -03

T/C N0(S): I214470-A; 1215016-A; 1218918-A

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December 24, 2015

\

Dear Court Clerk,

Please find mv APPLICANT'S RESPONSE TO AFFIDAVIT OF JAMES ARDOIN to be filed

and preserved for the writ ot habeas corpus 11.07 applications in the above-styled

numbered causes for the Courts future consideration of these applications.

The original copy of this Response has been filed with the Harris County

District Clerk via CERTIFIED MAIL No- 7013-2250-0002-2282-5801.

Thank you for your time and assistance in.this matter, it is yreatly appreciated

and welcomed.

^Sincerely

enclosure(si : 1 (,8pgs)

cc: file

Harris County District Attorney

Harris County District Clerk

certified mail no. 7013-2250-0002-2282-5818

KSincerely,

James Michael Beattie

Applicant Pro Se

TDCJ-ID # 1879331

Smith Unit

1313 CR 19

Lamesa, Texas 79331

EC 29206

*»Acosta, Clerk

f,le in m

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EX PARTE

JAMES MICHAEL BEATTIE

CAUSE NO.1214470-A; 1215016-A; 1218918-A

CCA WRIT NO. WR-84-053-01; -02: -03

IN THE DISTRICT COURT

351ST JUDICIAL DISTRICT

HARRIS COUNTY, TEXAS

APPLICANT'S RESPONSE TO

AFFIDAVIT OF JAMES ARDOIN

TO THE HONORABLE COURT:

COMES NOW, James Michael Beattie, Applicant Pro Se, in the above styled

numbered cause, and respectfully files this his Response To Affidavit of James Ardoin.

Beattie responds as follows.

I. -

The affidavit of James Ardoin, is a result of the Court's untimely Order issued on

November 9, 2015 in effort to resolve the lone issue the Court desiqnated to be resolved

back on June 1, 2015. This effort by the Court relates to the Applications for Writ of

Habeas Corpus (11.07) filed by Beattie on April 7, 2015- NOT April 14, 2015 as the Clerk

of this Court contends - the date the Harris Countv District Clerk siqned for and received

Applications. ,• .

Beattie asserts that there are more issues that need to be resolved -

other than the ineffective assistance of counsel claims. However neither the State or the

Court wishes to tackle such sensitive issues as those issues reflected on the misconduct

of the District Attorney and the trial Judge. Beattie has made it clear in previous

pleadings the lacking in resolving these issues and giving proper due process to claims

raised in the applications.

For the record it should be noted that Judqe Mark Kent Ellis, the trial judqe, who

has acted previously in these habeas corpus proceedings - did not sign the November 9, 2015

Order. As previously stated Judicial Misconduct is a claim raised in habeas applications

and subject of Recusal Motion which Judqe Mark Kent Ellis is party to.

Beattie, much as he contended in his response to the State's Answer these questions/

allegations should have also been put forth to Audley Heath, Beattie's first attorney, for

over 2 years. However for some odd reason the attorney in which Ardoin said was ineffective

to Beattie and in his case notes, Audley Heath, was not subject to inquiry.

II.

This affidavit by James Adoin, is sworn to be true and correct under penalty of perjury.

Yet, the very first sentence by Ardoin is false. It States: "My name is James Ardoin,..."

Beattie did not, and Court records, including the November 9, 2015 Order, as well as

State Bar reocrds will show that James Ardoin, III was hired. While Ardoin and this Court

may not see issue, as Ardoin may present himself in public as.James Ardoin-He is NOT
James Ardoin Senior, not even the Junior, but the Third. Seems that if counsel commits a

bit of perjury in the very first sentence of his sworn affidavit, the likelihood of the

rest of the affidavit being completely true is very doubtful.

Beattie has attached his own affidavit alonq with one from his Sister Dr. Kerri

Dembowske and one from his Brother-in-law CWO Todd Dembowske, both who had interaction

with Ardoin regarding issues raised inthis case. This Court has a determination to make

with evidence that supports Beattie's claims, that were attached as Exhibits to habeas

applications. It is interesting that, much like the State, Ardoin ignored what Mr. Brian

Zubel and Mr. David Lamaqna stated in their letter/affidavits. Why has the Court not

contacted them tor further comment?

Also how can a affidavit bv Ardoin be considered truthful when he cannot state his

own name correctly, but also cannot spell the name of renowned attorney Richard riaynes.

In Ardoin's affidavit he misspelled Mr. Havne's name, not once but three(3) times- How

manv other "facts" did Ardoin get wrong? As Beattie's attached affidavits provide - quite

a few.

III.

DESTRUCTION, FAILING TO PRESERVE EVIDENCE

Attached to this response is affidavits from persons with knowledge of these events,

who all state Mr. Ardoin was well aware of Mr. Heath's failures to preserve and destroy

evidence. The Court should also take note of Mr- Heath's response to same allegation in

a State Bar complaint:

"I turned over my entire file to Richard Hayne's law firm. The photos which

were taken on my ceil phone were not retrievable because of problems with my

phone."

However, Mr. Heath failed to retake the photos immediately after discovery of the

problem with a real camera, thus failure to preserve evidence. Ardoin had knowledge of

this as he was told multiple times by several people.

COUNSEL'S INVESTIGATION/HINDERING EXPERTS

Ardoin describes what he did to review the work of previous investigators, but does

not detail what he did to investigate. He made notations of the Burglary case being closed

and linked to Andre Hampton, but he failed to act on this evidence; such as to inquire

with the Grand Jury records to see if prosecutors brought forth this evidence to the Grand

Jury.

Nor did Ardoin tell this habeas court that the denial by Trial Judge of access to

crime scene was in violation of Beattie's Constitutional Rights. Ardoin cannot state no

knowledge of this. Besides bejng a basic fundamental right that any first-year law student
knows. Ardoin presented sucn argument to the trial judge in a Motion For Reconsideration

of Defendant's Motion For Access To The Crime Scene, filed February 2b, 2013, in which

he states: '

"The failure to permit the defense expert to examine this location will

prevent the Defendant from effectively cross-examing and rebutting these

• witnesses and will violate the Defendant's riqht to effective assistance of

counsel, as well as the riaht to a fair trial and due process of iaw as

guaranteed by the 5th Amendment of the United States Constitution, Article I

§10 of the Texas Constitution and Article 1.04 of the Texas Code of Criminal

Procedure."

MTN For Reconsideration - Feb. 26, 2013 - pg.2

As for hindering, Beattie asserts the letter/affidavits from Brian Zubel and David

Lamaqna speak for themselves. However- if this habeas Court truly wants to resolve this

issue, it should request affidavits from these Experts, should the Court find the letters

insufficient or lacking in detail.

BODY ARMOR

Ardoin trys to pla_y family drama as an excuse for his lack of action. The first step

was to get an affidavit from Beattie's son. With that affidavit, Ardoin could have used

such as leveraqe to qet charqes dropped. Ardoin cannot claim ignorance to making deals

and using affidavits as leverage. Ardoin is an expert in "back-room deals" as are most

every defense attorneys in the United States. Just depends on how much effort you want

to put into the case for your client. For Ardoin, not very much it seems, since the

affidavit from Beattie's son could have been used in a Motion to Suppress which Beattie

presented as a claim in habeas application and as failure by counsels to file such motion.

INCRIMINATING EVIDENCE

Ardoin states that Mr. Lamagna found incriminating evidence and thus lets Ardoin

off-the-hook to provide effective assistance. Yet Ardoin tails to inform the Court that

this "alleged" evidence was found 3% years.after arrest, when the. Houston Police Department

searched and inventoried ail of Beattie's clothes, possessions and evidence that night.

Even Expert Brian Zubel states finding "jewelry in the pocket meant nothing; considering

the Houston PD's demonstrated practices of dry-labbing evidence, this material was in all

likelihood planted. The prosecution produced no evidence that this jewelry was stolen.

The prosecution never charged your brother with any crime related to this jewelry. Ardoin

qladly let himself and your brother to be cowed and intimidated with insinuations about

the jewelry the government never even attempted to prove." Zubel Letter pg.3.

APPEAL PRE TRIAL MOTIONS

Ardoin never told Beattie about the right to appeal any of the pre-trial motions.

Beattie was under the impression that none of the pre-trial motions had even been ruled

upon. Ardoin had told Beattie its up to the Court's decision when and if to rule on the
Beattie had no knowledge that trial judge Mark Kent Ellis denied access to the crime

scene Had Beattie known and that Ardoin knew that was unconstitutional as shown above,

Beattie would have insisted on appeal of that ruling. Beattie would have also insisted

on appealling the motion to suppress the body armor and the Daubert Motion on the

DNA results, it the Court did rule on the motions and against the defendant. But Beattie

did not know and still does not know if the Court ever ruled on the motions because

Ardoin never informed Beattie of such.

VOLUNTARINESS , .

Any attorney that i. ordered to file an affidavit to answer for his or her perforce

ana asKed to answer the Question -was the plea Voluntary -will always answer yes «hy.

-Because an answer in the positive looks bad on the attorney's performance and ahit

against their professional credibility- So any answer to such aquestion should be taken

with the knowledge of the bias and conflict of interest by the attorney in his answer.

All the exhibits, letter/affidavits, the trial records and evidence provided by

Beattie in these habeas applications supports that the.plea of guilty that he entered was

involuntary and unknowing. For aames Ardoin -the Third -to state otherwise, is an atte.pt

to curry favor with the State and the trial court and distract from his unprofessional -

and deficient performance.

IV. •

Two Nationally recognized Experts, Brian Zubel nad David Lamagna, clearly state that

James Ardoin was deficient, hindered these Experts and provided ineffective assistance

of counsel. Another national attorney also states that Audley Heath provided ineffective

assistance of counsel. Ahighly educated and talented Doctor and aChief Warrant Officer

who is also aCaptain contradict Ardoin's statements made in the affidavit. Beattie

also provides an affidavit to state his view on what took place between him and Ardoin

that Ardoin is conviently leaving out and misrepresenting to this Court.

Remember Ardoin's affidavit states with apenuried statement and latter misspells

Legendary attorney Richard Hayne's name. With such glaring errors, the credibility of the

rest of the affidavit by Ardoin is suspect and in doubt. While Ardoin may be aprofessional

attorney most of the time, in this case unfortunately his professional ability was

missing and deficient. As such, afinding that Beattie was not afforded effective

assistance of counsel should be found and habeas relief granted in all cases before this

habeas court.

Respectfully Submitted,

DATED: December 23, 2015 )Ua^j fW ,|0P-lCWoJ^mes Michael Beattie

Applicant Pro Se

TUCJ-ID # 1879331

Smith Unit • 1313 CR 19

Lamesa, Texas 79331
EXHIBIT NO. 1

AFFIDAVIT OF JAMES MICHAEL BEATTIE

"My name is James Michael Beattie, I am over 18 years of aqe, of sound mind, and

capable of making this affidavit. The facts stated in this affidavit are within my

personal knowledge and are true and correct.

"I filed an Application For Writ of Habeas Corpus 11.07 on April 7, 2015 to challenge

my convictions in Harris County, Texas. The April 7, 2015 date is the date the District

Clerk signed and received my Applications, mailed by Certified Mail(No(s):7008-1140-0004-

9224-8343; 7008-1140-0004-9224-8183; 7008-1140-0004-9224-8350). The Court on June 1, 2015

designated one issue to be resolved - whether Applicant was denied effective assistance

of counsel. Over 180 days after filing applications and Notice of Application For Writ

of Mandamus was filed with the Court of Criminal Appeals, did the State and the Court

decide to act with urgency before the Court of Criminal Appeals acted. This hastedly

actions leave much to be desired and fails to address all issues in habeas corpus

applications.

"Mr. James Ardoin,,III, was ordered by the Court to answer/respond to seven allegations

the State determined needed to be resolved. The Court agreed, ignorinq my previous objections

to the lone designating issue. A true review of these habeas applications will show more

allegations that need to be answered bv Mr. Ardoin and Mr. Heath, who was not ordered

to answer any allegations, as well as the State and trial Judqe Mark Kent Ellis.

"Regarding Mr. heath's failing to preserve or destrovinq evidence and knowledge by

Mr. Ardoin; Mr. Ardoin states: "I am unaware of any failure to preserve or destruction

of evidence by Mr. Audley Heath." I personally informed Mr. Ardoin at the first meeting

that Mr. Heath did not preserve and destroyed photos of me from the night of my arrest.

Mr. Ardoin was told repeatedly about the pictures and about Mr. Heath's failure to file

IAD complaint regarding the brutality and torture. My Sister, Dr. Kerri Dembowske also

informed Mr. Ardoin repeatedly about those photos. Mr. Heath admits he failed to preserve

the photos because he could not operate his cell-phone camera for downloading the photos.

Bottom line, Mr. Ardoin knew, he refuses to acknowledge because it would look bad for

him and Mr. Heath.

"Regarding Mr. Ardoin's investigation, it appears he rode the coattails of Mr. Joe

Lamza, Mr. Brian Zubel, and Mr. David Lamagna. Yet his review failed to have Mr. Ardoin

act on the Harris County Sheriff Department's Report regarding closing of cases in which

I was indicted for.. Nor that the results of the GSR test was negative, which he made

exclusive notes about in his attorney/client file.
."As for the cooperation with Mr. Zubel and Mr. Lamagna, Mr. Ardoin's statements

are refuted by both Mr. Zubel and Mr. Lamaqna, as shown by Exhibits attached to habeas

applications. These letter/affidavits by Mr. Zubel and Mr. Lamagna are very telling of

Mr. Ardoin's actual performance in handlinq this case.

"I instructed Mr. Ardoin to obtain an affidavit from my son regarding the body armor.

I knew my son may have to testify at trial.and I told Mr. Ardoin we would work to get my

son to Court if needed. I also instructed Mr. Ardoin to test the body armor for DNA to

show that I never wore.the body armor, but that my son did. Finally, as shown by the

Addendum filed , the State returned the body armor to the owner, my son. Mr. Ardoin has

qave this Court false statements regardinq my son and the. body armor.

"Mr. Ardoin contends he did nothing to hinder Mr. Zubel or Mr. Lamagna, but that is

completely false. Once again the Exhibits attached to the applications of the Letter/

affidavits of Mr. Zubel and Mr. Lamagna state the opposite from what Mr. Ardoin states.

Mr. Ardoin contends because he sent Mr. Zubel copies of the state's analyze of DNA testing

that not hindering. Yet, when Mr. Lamagna attempted to obtain samples, Mr. Ardoin did

not assist in helping obtain DNA samples, in fact told Mr. Lamagna not to collect any

DNA samples. That seems to be hindering the investigation, testing and analysis. Mr.

Ardoin may have spent some time, but he exaqgerates that he spent 3 days. Also Mr. Ardoin

lied to Mr. Lamagna and denied me from talking to Mr. Lamagna. In fact, Mr. Ardoin never

informed me that Mr. Lamagna wanted to see me or had been tryinq. That is surely hindering

the defense. '

"As far as Mr. Lamagna finding so-called "incriminating evidence", it would seem that

Mr. Ardoin would seriously question Houston Police procedures. Since that "evidence" was

found some 3\ years after mv arrest. But instead,; Mr. Ardoin savs its incriminating and

believes it had been in the pockets this whole time. Yet, the police searched me and my

clothinq I had that night and found nothing. He did nothing to challenge this findinq.

"Mr. Ardoin is in classic CYA. mode reqardinq the State's withdrawal of the 404(b)

Notice, severing cases, and not pursuinq those offenses with DNA. Only one sentence that

"these facts were clearly communicated to Mr. Beattie as they occurred." That is completely

false, I had no knowledge regarding the withdrawal of 404(b) Notice until 1 received a

copy of Mr. Zubel's letter.a year after I had plead guilty.

"If I had been told that I could appeal the pre-trial motions, I sure would have.

But what Mr. Ardoin is not telling the Court is he failed to pursue a ruling on most of

the pre-trial motions.- Mr. Ardoin told me its the Courts prerogative as to when, if ever,

these motions would be ruled on. It is telling how untruthful Mr. Ardoin is regardinq

the pre-trial motions. Yet in the Motion to Reconsideration of Defendant's Motion For

Access To The Crime Scene, Mr. Ardoin argues that the Court's denial would violate right

to effective assistance of counsel, right to fair trial and due process of law. But Mr.

Ardoin never told me this and he never pursued having me appeal. I had to learn about
this from a jaiihouse lawyer here in prison until I received my attorney/client file.

"Of course, Mr. Ardoin will tell this Court my plea was voluntary. It will save him

from being labeled as ineffective. What Mr. Ardoin has not told this Court is what he

told me or failed to tell me, or how he pressured me into taking the plea bargain-

"The content of Mr; Ardoin's and my conversation that Friday of the plea agreeemnt

are drastically different that what Mr. Ardoin stated and would like this Court to

believe. Surely the Court is well aware of the very gray area tactics that are employed

by lawyers wanting a quick resolution of pesky & complicated cases, such as mine that had

been dragging for over 4 years.

"Mr. Ardoin fails to state I told him that Friday of the plea, I had decided to go

for my trial regardless as I had done for the past 4+ years. He became flustered and went

into Texas juries are easily prejudiced and that even though thev cannot put a gun in

your hand, or even prove you touched or had one they (State) have 7 police that are going

to talk bad about vou. Then he talked about the upcominq article about me that "informs

ever prospective juror out there where you have been for these past years. Regardless of

your suit and the persona, this article will prejudice their view. This is the same Court

where they convicted LaDondrell Montgomery for robbery and qave hiT. a life sentence only

to find out a few days later he was in police custody at the time of said robbery." Mr.

Ardoin cited he (Montgomery) was prejudiced against prosecution and police and made

national news.

"Mr. Ardoin did a throuqh job of coercing and convincing me into takinq the plea.

Mr. Ardoin played on my paranoia and fear of what happened to Mr. Montgomery (we were in

the same jail and talked). Mr. Ardoin stated that even after the trial my next one would

be in a year or year and half, that the State would stack the sentences. If I didn't

plea out, "you will never get out if you don't plea out" Mr. Ardoin exclaimed.

"It is also interesting that this pressure by Mr. Ardoin occurred less than 36 hours

before a major newspaper article about my incarceration for over 4 years waiting for

trial. An article Mr. Ardoin is quoted in and legal experts state there was a violation

of my constitutional rights. A few quotes by Mr. Ardoin inthe article to a reasonable

person would ask what Mr. Ardoin was doing or had done about these issues of speedy trial

and other constitutional rights violation. I will tell vou - NOTHING!!!

"Mr. Ardoin's affidavit to this Court is filled with false, erroneous, and incomplete

statements of the facts and events. Mr. Ardoin's statements are self-serving, only in

order to protect himself from beinq labeled as ineffective. Yet Mr. Ardoin's own words

on other documents, pleadings, and his actions (and non-actions) contradict his latest

claims he provided effective assistance of counsel. Nationally recognized Experts state

different intheir letters/affidavits."
"I pray this Court will qive my affidavit the same weiqht of credibility as Mr.

Ardoin's. I pray this Court will also give the same weiqht of credibility to the other

exhibits that have been presented throuqh these proceedings and render a fair and just

ruling.'1

1, James Michael Beattie, declare under penalty of perjury, that the foregoing

statements are true and correct to my personal knowledge.

SIGNED onthis the 23rd day of December/ 2015.

u

V(^rffcL

Jaihes Michael Beattie

TDCJ-ID # 1879331

Smith Unit/TDCJ

1313 CR 19

Lamesa, Dawson county

Texas 79331