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 

# RECEIVEDIN COURTOFCRIMINALAPPEALS 

## fVIAR0

## 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 § 

### INTHE COURT OF

§ 

### CRIMINAL APPEALS

DONALD JAY PRUITT § 

### AT AUSTIN, ,TEXAS



### ***************************************************************** MOTION REQUESTING COURT OF CRIMINAL APPEALS-TOORDER TRIAL COURT TO DESIGNATE ISSUES TO BE RESOLVED AND PREPARE PROPER FINDINGSOF FACTS AND CONCLUSIONS OF LAW REGARDING APPLICANT'S WRIT OF HABEAS CORPUS PURSUANT TO THE PROVISIONSOF § 

### 11.07 

### *****************************************************************

TO THE HONORABLE JUSTICESOF 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 complywith Section 3.(c) governing 11.07proceedings. 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 shallbethedutyof the convicting court todecidewhetherthere are controverted, previouslyunresolved facts material to the legalityof the applicant'sconfinement. Confinement means confinement for any offens e·or any collater a 1conse·quenc eresu l t i n g from the 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** 

### immediatelytransmit tothe Court of Criminal Appeals a copyof the application, any answers filed, and aPage 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 AWRIT 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 recordPage 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 evidentiaryhearing. ********************** 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 FAILINGTO CONDUCT A REASONABLEPRE-HEARING INVESTIGATIONFOR MITIGATIONEVIDENCE AND INTRODUCE SAME ATAPPLICANT'S REVOCATION HEARING. THIS VIOLATED APPLICANT'S RIGHT TO COUNSEL, AS GUARANTEED BY AMENDMENTS 6 AND 14TO THE U.S. CONSTITUTION. SEEWIGGINS VSMITH, 123 S.CT.2527 (2003); WILLIAMS VTAYLOR, 120**S~CT.** 1495 (2000); STRICKLAND V WASHINGTON, 104 S.CT.2052 (1984).

. GROUND TWO(VERBATIM) APPLICANTWAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AND DUE PROCESS OF LAWWHEN TRIAL COUNSEL ADAM REED FAILEDTO CONVEY THE STATE'S TWO PLEA.OFFERS. THIS.VIOLATED APPLICANT'S RIGHT TO COUNSEL AND TO DUE PROCESSOF.LAW, AS GUARANTEED BY AMENDMENTS 6, 5, AND 14 TO THE U. S. CONSTITUTION. SEE STRICKLAND VWASHINGTON, 104S.CT. 2052 {1984); MISSOURI VFRYE, 132 S.CT. 1399 (2012); LAFLER'VCOOPER, 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 setPage 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 consistentlyheld that when the trial court fails to designate the issues to be resolved.in ineffectiveassistanceof 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 claimof ineffective assistance of counsel potentiallyentitledhim to reliefshould 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 claimof ineffectiveassistance of counsel which; if true could entitlehim 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 t6relief. 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 submittedon

# this~day of

# ;j?~LJ{ I 2015.

# ~~~ Donald J tt · Pro Se Representation