ABEL ACOSTA, CLERK 

DONALD JAY PRUITT 

TDCJ~CID# 1057730 

WILLIAM CLEMENTS UNIT 

9601 SPUR 591 

AMARILLO, TEXAS 79107 

COURT OF CRIMINAL APPEALS OF TEXAS 

P.O. BOX 12308, CAPITOL STATION 

AUSTIN, TEXAS 

78711 

RECEIVED IN 

COURT OF CRIMINAL APPEALS 

fVIAR 0 6 2015 

RE: WRIT No._tJf<.·- ss; J'/3-Q3, EX PART~ DONALO JAY PR~lfl!~JrAf;ostagCUertk 

FtL1NG OF MOTION. 

Dear Honorable Clerk: 

'. :. Plea~e: f i~d~- ~~clbs~d i m~ ·,-- ;; MbTIO~ .-REQUESTING'. COURT cir- -~rurV!iNAL 

APPEALS TO ORDER TRIAL COURT TO DESTGNATE ISSUES TO BE RESOLVED 

AND PREPARE PROPER~FINDINGS.OF:FACT~AND, CONCLUSIONS OF LAW REGARDING APPLICANT~S WRIT OF HABEAS CORPUS PURSUANT TO THE PROVIS!ONS,.OF § 11.07." 

Would you please see to.~it that this Motion gets attached to 

my habeas application for presentation to the Honorable Justices. 

I thank you in advance in this 

very important matter. 

Sincerely yours, 

~mt//r)#-~ 

Donal~ay Pruitt 

Pro Se Representation 
WRIT NO. t-Jl.-£5;:J~t3-Q3 

EX PARTE § IN THE COURT OF 

§ CRIMINAL APPEALS 

DONALD JAY PRUITT § AT AUSTIN, ,TEXAS 

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MOTION REQUESTING COURT OF CRIMINAL APPEALS-TO ORDER TRIAL 

COURT TO DESIGNATE ISSUES TO BE RESOLVED AND PREPARE PROPER 

FINDINGS OF FACTS AND CONCLUSIONS OF LAW REGARDING APPLICANT'S 

WRIT OF HABEAS CORPUS PURSUANT TO THE PROVISIONS OF § 11.07 

***************************************************************** 

TO THE HONORABLE JUSTICES OF THE COURT OF CRIMINAL APPEALS: 

COMES NOW, Donald Jay Pruitt, Applicant, pro se, and respectfully moves this Honorable Court to set aside the Clerk's Record 

that has been fowarded to this Court, pursuant to Texas Code of 

Criminal Procedure, Article 11~07, for failure to comply with Section 3.(c) governing 11.07 proceedings. 

Section 3(c) governing § 11.07 procee~ings provides: 

Within 20 days of the expiration of the time in which the 

state is allowed to answer, it shall be the duty of the convicting court to decide whether there are controverted, previously unresolved facts material to the legality of the 

applicant's confinement. Confinement means confinement for 

any of fen s e · or any co ll ate r a 1 cons e·qu en c e res u l t i n g f rom t he 

conviction that is the basis of the instant habeas corpus. 

If the convicting court decides that there are no such issues, 

the clerk sh~ll immediately transmit to the Court of Criminal 

Appeals a copy of the application, any answers filed, and a 
Page 2. 

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. 

ARGUMENTS & AUTHORITIES 

Although the trial court acted within 20 days of the expiration 

of the time in which the state was allowed to answer. The trial 

court in the instant habeas corpus, decided that there are no controverted, previously unresolved facts material to the legality of 

applicant's confinement. The trial court then orde~ed the Clerk to 

transmit the entire habeas corpus record to this Court. Applicant 

requests that this Honorable Court set aside the Clerk's Record in 

the instant action and remand for proper findings of facts and conelusions of law pursuant to the provisions of § 11.07. Applicant 

will show the Court as follows: 

On page bne of Applicant's ''MEMORANDUM OF LAW IN SUPPORT OF 

APPLICATION FOR A WRIT OF HABEAS CORPUS PURSUANT TO TEXAS CODE OF 

CRIMINAL PROCEDURE 11.07." Applicant stated the following: 

REQUEST FOR EVIDENTIARY HEARING & EXPANSION OF THE RECORD 

Applicant has presented this Honorable Court with controverted, 

previously unresolved issues of fact material to the legality of 

applicant's confinement, which, if true, entitle him to relief. 

''In a post-conviction collateral attack, the burden is on the 

applicant to allege and prove facts which, if true, entitle him 

to relief.'' Ex parte Maldonado, 688 S.W.2d 114, 116 (Tex.Crim.App. 

1985); Ex parte Richardson, 70 S.W.3d 865, 870 (Tex.Crim.App.2002); 

Ex parte Morrow, 952 S.W.2d 530, 534 (Tex.Crim.App.l997). 

"It is the applicant's obligation to provi~e a sufficient record 
Page 3. 

that supports his allegations with proof by a preponderance (not 

beyond all reasonable doubt) of the evidence." Ex parte Chandler, 

182 S.W.3d 350, 353 (Tex.Crim.App.2005). 

Because the burden of proof is on the applicant and, the fact 

that the Court of Criminal Appeals does not hear evidence, only 

the trial court my conduct a hearing. Therefore, Applicant requests this Honorable Court to conduct a live evidentiary hearing. 

********************** 

Applicant presented the following two Grounds For Relief in 

the instant case: (These were the only Grounds in the 11.07). 

GROUND ONE (VERBATIM) 

APPLICANT'S COUNSEL WAS INEFFECTIVE IN FAILING TO CONDUCT A 

REASONABLE PRE-HEARING INVESTIGATION FOR MITIGATION EVIDENCE AND 

INTRODUCE SAME AT APPLICANT'S REVOCATION HEARING. THIS VIOLATED 

APPLICANT'S RIGHT TO COUNSEL, AS GUARANTEED BY AMENDMENTS 6 AND 

14 TO THE U.S. CONSTITUTION. SEE WIGGINS V SMITH, 123 S.CT.2527 

(2003); WILLIAMS V TAYLOR, 120 S~CT. 1495 (2000); STRICKLAND V 

WASHINGTON, 104 S.CT.2052 (1984). . 

GROUND TWO (VERBATIM) 

APPLICANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AND DUE 

PROCESS OF LAW WHEN TRIAL COUNSEL ADAM REED FAILED TO CONVEY THE 

STATE'S TWO PLEA .OFFERS. THIS. VIOLATED APPLICANT'S RIGHT TO COUNSEL AND TO DUE PROCESS OF .LAW, AS GUARANTEED BY AMENDMENTS 6, 5, 

AND 14 TO THE U. S. CONSTITUTION. SEE STRICKLAND V WASHINGTON, 

104 S.CT. 2052 {1984); MISSOURI V FRYE, 132 S.CT. 1399 (2012); 

LAFLER'V COOPER, 132 S.CT. 1376 (2012). 

As illustrated above, Applicant's Grounds For Relief involve 

ineffective assi.stance of counsel claims. Applicant would argue to 

this Honorable Court, that when a convicting court is faced with 

ineffective assistance of counsel claims, this Court of Criminal 

Appeals requires the convicting court to either hold an evidentiary 

hearing, or, order the attorney to respond to the allegations set 
Page 4. 

forth in the habeas application. Cf., Ex parte Campos, 613 s.w. 

2d 745 (Tex.Crim.App.l98l). 

Applicant would point out that this Court of Criminal Appeals 

has consistently held that when the trial court fails to designate 

the issues to be resolved. in ineffective assistance of counsel cases 

that they will remand for further proceedings. See e.g., Ex parte 

Tate, 2006 WL 1173515 (''Remand was required for factual findings, 

in proceedings on application for writ of habeas corpus, where district court entered no findings of fact or conclusions of law, and 

applicant's allegation. of facts underlying his claim of ineffective 

assistance of counsel potentially entitled him to relief should 

allegations be true"); See also Ex parte Manning, 2006 WL 1173174 

("Remand was required for additional factual findings, in proceedings on application for writ of habeas corpus, where applicant alleged facts in support of his claim of ineffective assistance of 

counsel which; if true could entitle him to relief"). 

In Applicant's 11.07, Applicant demonstrated, unquestionably, 

through the affidavits requesting .that Applicant be granted clemency/commutation from the District Attorney (not an assistant district attorney) Clay L. Ballman, the trial court judge, Honorable 

John LaGrone, and even the Borger Police Department Chief, Jimmy 

Adams. The common denominator of the above stated, is that had 

Applicant's revocation counsel investigated the case and presented 

mitigation evidence, that the trial judge and district attorney 

would have moved to just modify Applicant's probation. Instead, 

Applicant was sentenced to 55-years, aggravated. 
Page 5. 

Moreover, plea counsel who was initially appointed in this case 

failed to convey to the Applicant that the State had made two plea 

offers and therefore, Applicant was deprived of the opportunity of 

accepting either offer which constitutes the requisite prejudice. 

In the instant case, Applicant has presented facts that undeniably support his claims of ineffective assistance of counsel, 

which, are true, and entitle him t6 relief. 

The district .court's decision in the instant case not to find 

that Applicant had presented controverted, previously unresolved 

facts material to the legality of Applicant's confinement does not 

comply with Section 3(c) governing 11.07 proceedings and affects 

the integrity of the proceedings which requires this Honorable 

\ 

Court to set aside the Clerk's Record that has been filed with this 

Court and order the trial court judge to designate issues to be resolved and prepare a proper findings of facts and conclusions of 

law. 

WHEREFORE based on the above, Applicant, Donald Jay Pruitt, 

urges this Honorable Court to grant this motion to set aside the 

Clerk's Record, and issue an order that the trial court designate 

issues to be resolved in compliance with Section 3(c), governing 

11.07 proceedings. 

Respectfully submitted on this~day of ;j?~LJ{ I 2015. 

~~~ Donald J tt · 

Pro Se Representation