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

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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



# EC29206 

# *»Acosta,Clerk f,leinm 

# «J3@&f*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 inwhich 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 NOTJames 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 frompersons 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 studentknows. 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 fromBrian 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

# Beattiehadnoknowledge that trial judgeMarkKent Ellisdeniedaccess to the crime 

# scene HadBeattieknownandthatArdoinknewthatwasunconstitutional as shownabove, 

# Beattiewouldhave insistedonappeal of thatruling. Beattiewouldhavealsoinsisted 

# onappealling themotiontosuppressthebodyarmorandtheDaubertMotiononthe DNAresults, ittheCourtdidruleonthemotions andagainst thedefendant. ButBeattie didnotknow and still does notknow if theCourt everruledonthemotions because Ardoin never informed Beattie of such. VOLUNTARINESS , . 

# Anyattorneythat i. orderedtofileanaffidavittoanswerforhisorherperforce anaasKedtoanswertheQuestion

-was thepleaVoluntary

-will always answeryes «hy. -Becauseananswer inthepositive looksbadontheattorney'sperformanceandahit



# againsttheirprofessionalcredibility- Soanyanswertosuchaquestionshouldbetaken with theknowledge of the biasand conflict of interestbythe attorney inhis answer. All the exhibits, letter/affidavits, the trial records andevidenceprovidedby 

# Beattieinthesehabeasapplications supportsthat the.pleaofguiltythatheenteredwas 

# involuntaryandunknowing. ForaamesArdoin

-theThird

-tostateotherwise, isanatte.pt 

# tocurryfavorwiththeStateandthetrial courtanddistract fromhisunprofessional

- and deficient performance. IV. • 

# TwoNationallyrecognizedExperts, BrianZubel nadDavidLamagna, clearly state that James Ardoinwasdeficient, hindered theseExperts andprovided ineffective assistance 

# of counsel. Anothernational attorneyalsostates thatAudleyHeathprovided ineffective 

# assistanceof counsel. A highlyeducatedandtalentedDoctor andaChiefWarrantOfficer who is also aCaptaincontradict Ardoin's statementsmade in the affidavit. Beattie 

# alsoprovidesanaffidavit tostatehisviewonwhattookplacebetweenhimandArdoin that Ardoin is conviently leaving out andmisrepresenting to this Court. 

# RememberArdoin's affidavit stateswithapenuried statement and lattermisspells 

# LegendaryattorneyRichardHayne'sname. Withsuchglaringerrors, thecredibilityof the restof theaffidavitbyArdoinissuspectand indoubt. WhileArdoinmaybeaprofessional attorneymost of thetime, inthis caseunfortunatelyhis professional abilitywas 

# missing anddeficient. As such,afinding thatBeattiewasnot affordedeffective 

# assistance of counsel shouldbe foundandhabeas relief grantedinall casesbefore 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 79331EXHIBIT 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 inpolice 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, andhis 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