... "..''> p 

. ' 

July 8, 2015 

Court of Criminal Appeals 

Clerk of Court 

P.O. Box 12308 

Austin, TX 78711 

~3,5~0 -()) 

This document contains some 

pages thafare of poor quality 

at the time o~ Imaging. 

RE: Original Appliaation Fo.r Writ of Mandamus 

District Clerk, Harris County, Non-compliance/T. C. C. P. 11.07 

Dear Honorable Clerk of Court: 

Please find enclosed: (1) Original Application for Writ of 

Mandamus, and (2) Exhibits "A" through "E". 

Please forward the Mandamus with attached exhibits to the 

Court for consideration and ~ulin.g. Thank you for your kind assist~ 

ance with this matter. 

Respectfully Submitted, 

TO~E. 

tm~· ~-McDannel f/h~ TDCJ-ID #1562227 

Wayne Scott Unit 

6999 Retrieve Rd. 

Angleton, TX 77515 

RECEIVED IN 

COURT OF CR!~tNAl APPEALS 

JUL 13 2il15 
IN THE 

COURT OF CRIMINAL APPEALS 

AUSTIN, T E x·A S 

THOMAS E. McDONNEL. 

TDCJ-ID 11562227 

RELATOR 

v • 

HARRIS COUN.TV DISTRICT CLERK 

C H R I S D A N I E L :·: 

IN HIS OFFICLAL CAPACITY 

RESPONDENT 

CAUSE NO~ 1131353-B 

24Bth JUDICIAL COURT OF 

HARRIS COUNTY, TEXAS 

RECEIVED IN 

COURT OF CRIMINAL APPEALS 

JUL 13 2u15 

Abet Acc.st.a, Clerk 

ORLGINAL APPLICATION FOR WRIT. OF MANDAMUS 

TO THE HONORABLE JUDGE .OF SAID COURT: 

·coMES NOW, THOMAS E. McDONNEL, ·Rel·ator; pro se in the above 

styled and numbered cause of action and f~les this Original Application for Wri~ of Mandamus, pursuant to Art±cle 11.07 Section 

3(c) of the Texas Code of Criminal ~rocedure (T.C.C.P.), and would 

show the Court the following: 

I. 

Thamas E. McDannel, TDCJ~ID J1562227, is an offender incarcerated in the Texas Department of Criminal Justice and is a~pearing pro se, who can be located at the Wayn~ Siott ~nit, Brazoria 

·County, Texas 77515. Relator ha.s exhausted his. remedies and has no 

other adequate remedy at law. 

-1-
I 

The act sought to _be compelled is miniater~al, not discretionary in nature. T.C.C.P. Art. 11.07, §3(c) requires Respondent to 

immediately transm.it to the Court of Criminal Appeals a copy of'. 

the appli~ation for writ of habeas corpus, any answers filed, and 

a certificate raGiting ths date upon which that finding was made, 

if the convicting court dec~des that thers were nd issues to be 

resolve.d. No copy ·of the applicatimn fmr writ of habeas corpus, 

any answers filed, Bnd a certificate reciting ths date upon which 

that finding was made has·been transmi.tted to the Court of Criminal 

Appeals by Respbndent as required by statute~ Relator would have 

received notice fram the. Cnurt of Criminal Appeals had Respondent 

done so. 

II. 

Responden:t, Chris Daniel;::, in his official capacity as District Clerk of Harr.is County, Texas, has ~ ministerial duty to receive and file all papers in a cr±minal proceeding, and perform 

all other duties imposed on the cl~rk by law pursuant to T.C.C.P. 

Art . 2 . 21 , a n d is . res pons i·b 1 e. under T . C . C . P . Art . 11 . 0 7 , § 3 ( c ) to 

immediately transm±t to the Court of Criminal Appesls a copy of 

the application for writ of habeas corpus, any answers filed~ and 

a certificate reciting the date upon which the finding was made if 

the convicting court decides that ·there are no issues to be resolved. Chris Daniel~, District Clerk, Harris County mBy be served 

at his place of business at 1201 Franklin St., Houston, Texas 

77002. 

III. 

V I 0 L AT I 0 N 0 F A R T I C LE 11 . 0 7 0 F T H E T E X A S 

CODE OF CRIMINAL PROCEDURE 

The Respondent ·violated·11.07, §3(c) of the T.C.C.P. by failing to provide a copy nf the application far wri.t of habeas corpus, 

any answers fil.ed, and a certificate reciting the date upon which 

that f.inding was made to the Court of Crimina~ Appeals within the 

tims prescribed by law and within a reasonabl8 time from the date 

on which the documents were required to be transmitt~d. 

-2-
Requests for the tr~nsmittal of the application for writ of 

habeas corpus, and any an~wsrs filed, and a c.ertif±cate reciting 

the date upon which that finding was made were made to Chris 

Daniel~;, District Clerk, Harris County, in the following ways: 

( 1 ) in the form o f a motion , . ,"5 tate s 0 r de r to Com p l.y " , ( Exhibit " A " ) 

submitted by Rel.ator on January 10, 2012; (2) in the form of a 

motion, "To Compel Coinpliance 11 (Exhibit "8"), submitted by Relator 

on Apr i 1 01 , 2 01 3 ; ( 3) in the form of a motion ; "For a Live P l·e nary Evidentiary Hearing" (Exhibit "C"), submitted by Relator on 

October 09, 2014; (4) in the form of a motion, "To Have Previous 

Motions Ruled On" (Exhibit 11 0 11 ); and in the form of a letter dated 

July 17, 2015 to Chris Daniei~ making one last requ~st for his 

compliance with Art. 11.07, §3(c) and notif.ying him of Relator's 

intent to file this Mandamus if Relator does not receive notice 

that the Court of Criminal Appeals has received a copy of the 

application for writ of h.abeas corpus·, any answers filed, a certificate. reciting the date upon wh~ch that finding wa~ made, and any 

attachinsnts filed with rir after the filing of the application. 

(Exhibit "E"). 

To date, the Relator has received no response from Respondent 

regarding Relator's request for transmittal of a copy of the application for writ of habeas corpus, any answers filed, and a certificate reciting the date upon which that finding was made to the 

Court of Criminal Appeals. Nor ·has Relator been notified of any [· ...... 

resolutions to the trial court's designated issues. 

As is clear from all of the Relator's motions and final letter, Relator has repeatedly put Respondent on notice that Relator 

seeks the resolving of the designated issues and the transmittal 

of a copy of the application for writ of habeas corpus, any answers 

filed, and a certificate reciting the date upon ~hich the finding 

was made'to the Court of Criminal Appeals and that such records 

are required by the Court of Criminal Appeals to act on Relator's 

writ of habeas corpus. Relator has gone well beyond any requirement 

or obligation imposed. upon him by the T.C.C.P. In contrast to the\ 

-3-
Relator's efforts, Respondent has wholly faiLed to ~omply with the 

T.C.C.P. Article 11.07, §3(c), is acting in bad faith, and has 

also failed to afford Relator the professional and common courtesy 

of any written response to his correspondence and motions. 

Article 11.07, §3(c) clearly states that "·[i]f the convicting 

court decides that there are no such issues, the c~erk shall immediate.ly transmit [emphasis added] to the Court of Criminal Appeals 

a copy of the application, any answers filad, and a 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." T.C.C.P. Art. 11.07, §3(c). In this particular case, the 

court did make a finding of fact. However, it has been almost four 

(4) years since Relator has filed his original application and 

approaching two (2) years since he filed the amended application. 

Certainly time has passe.d for allowing the trial court to resolve 

Relator's issues, and Respondent is well past due in complying 

with Art. 11 .07, 13(c). Respondent .is in violation of this procedure, minister.ial duties, and thus the laws of the State. 

IV. 

REQUEST FOR LIVE EVIDENTIARY HEARING 

Relator has already submitted a motion for a "Live Plenary 

Evidentiary Hearing" on October 09, 2014 (Exhibit "E") which the 

trial court either f~iled to rule on or failed to provide Relator 

with a copy of its ruling. Therefore, Relator is requesting this 

Court either order the trial court to hold a Live Evidentiary 

Hearing and finally resolve Relator's issues (the cou~t's findings 

of facts) or to hold its own Live Evidentiary Hearing once the 

Respondent complies with this Court's ruling anrl sends a copy of 

the application, any answers filed, and a certificate reciting the 

date upon which that finding was made. The necessity for this Live 

Evidentiary Hearing is great because the convicting Judge (Joan 

Cam be 11) is no 1 on g e r p r·a c tic in g at the 2 48th 0 is t ric t Court . A 

new Judge, Kathrine Cabanis, is presidi~g and she is not familiar 

with the case or the finding of facts made by the previous judge. 

-4-
PRAYER FOR RELIEF 

WHEREFORE, PREMISES CONSIDERED, Relator, Thomas E. McDannel, 

pro se, respectfully requests a finding that the Respondent did 

not transmit the documents to the Court of Crimirial Appeals within 

a reasonable time after the date they werB required to, and requested to, and that the Relator ~rought this litigation in good 

faith and has substantially prevailed. Relata~ prays for an ORDER 

directing the Respondent to transmit a cop,~of the application 

far writ a f habeas c o.rp us , any answers f i 1 e d , and a c e r t if i cat e 

reciting the date upon hlhich that finding was made to the Court of 

Criminal Appeals as di~ected in ArticlE 11.07 Section 3(c) of the 

Texas Code of Criminal Procedure and as requested in Relator's 

motions and letter previously sent to Respondent (Exhibits A 

through E). Further, Relator prays this Honorable Court to make 

and ORDER directing th.e trial court to hold a Live Evidentiary 

Hearing if this Court simply ORDERS for the trial court to resolve 

the findings of facts and issues. Or, conversely, Relator prays 

this Court to hold its own Live Evidentiary Hearing once the Respondent has complied with Article 11.07 Section 3(c). 

Respectfully Submitted, 

Jhomas 

zL<z:, E. McDannel ~/ R e 1 at a r , pr a s e 

-5-
UNSWORN DECLARATION 

I, Thoma~ E. McDannel, TDCJ~ID #1562227, presently incarcer~ 

ated in the Wayne Scott Unit of the Texas Department of Criminal 

Justice in Brazoria County, Texas, verify and declare under penalty 

of perjury that the foregoing statements are true and correct. 

EXECUTED on this the 8th day of July, 2015. 

Respectfully Submitted, 

Thomas E. McDannel 

TDCJ-ID #1562227 

Wayne Scott Unit 

6999 Retrieve Rd. 

Angleton, TX 77515 

Relator, pro se 

CERTIFICATE OF SERVICE 

I hereby certify that·a true copy of the above Application 

for Writ of Mandamus was se~ved on Chris Daniel~ by placing a copy 

in the U.S. Mail addressed to: Chris Daniel·j, Clerk of Court, 

1201 Franklin St., Houston, Texas, 77002 on this the 8th day of 

July, 2015. 

-6-
IN THE 

COURT OF CRIMINAL APPEALS 

AUSTIN, TEXAS 

THOMAS E. McDONNEL 

TDCJ-ID #1562227 

RELATOR 

v. 

HARRIS .C.OUNTV DISTRICT CLERK 

C H R I S D A N I E L ~:; 

IN HIS OFFICIAL CAPACITY 

RESPONDENT 

ORDER 

On this day, came to be heard the foregoing Relator's Application for Writ of Mandamus and it appears to the Court that the 

same should be: 

GRANTED 

IT IS THEREFORE ORDERED THAT the District Clerk shall immediately transmit to the Court of Criminal Appeals a copy of the 

application for writ of habeas corpus, any answers filed, and a 

certificate reciting the date upon which that finding was made. 

And further, a Live Evidentiary Hear~ng shall be conducted due to 

the fact that the convicting judge is no longer present, but that 

a new ju~ge is ncrw presiding in the 248th District Court. 

SIGNED on this the day of ' 201 5. ------

Presiding Judge 

-7-
EXHIBIT "A" 

- Motion: States Order to Comply -
.. -

CHRIS DANIEL 

HARRIS COUNTY DISTRICT CLERK 

January 17, 2012 

THOMAS ELTON MCDONNEL 

# 1562227-WAYNE SCOTT UNIT 

6999 RETRIEVE RD. 

ANGLETON, TX 77515 

To Whom It May Concern: 

Pursuant to Article 11.07 ofthe Texas Code of Criminal Procedure, please find enclosed 

copies of the documents indicated below concerning the Post Conviction Writ filed in 

cause number 1131353-B in the 248TH District Court. 

D State's Original Answer Filed 

D Affidavit Filed 

D Court Order Dated 

[gl Respondent's Proposed Order Designating Issues and Order For Filing Affidavit. 

D Respondent's Proposed Findings of Fact and Order Dated 

D Other 

Enclosure(s)- RESPONDENT'S PROPOSED ORDER DESIGNAJTNG ISSUE AND 

FOR FILING AFFIDAVIT 

1201 FRANKLIN • P.O. Box 4651 • HOUSTON, TEXAS 77210-4651 • (888) 545-5577 · 

PAGE I OF I REV: 01-02-04 
/ Mr~ FILED 

Chris Daniel 

District Clerk 

Cause No. 1131353.KB 

JAN 1 0 20 2 

EX PARTE § 

§ 

§ 

IN THE 24~J;>ISTRI ----,:;;k~~:di---

THOMAS ELTON MCDONNEL, 

Applicant 

OF 

HARRIS COUNTY, TEXAS 

STATE'S PROPOSED ORDER DESIGNATING ISSUE 

AND FOR FILING AFFIDAVIT 

Having considered the application for writ of habeas corpus in the above-captioned cause 

and the State's original answer, the Court finds that the issue of whether the applicant was denied 

effective assistance of counsel still needs to be resolved in the present case. 

Therefore, pursuant to Article 11.07, §3(d), this Court will resolve the above-cited issue 

and then enter findings of fact \ 

To assist the Court in resolving these factual issues, counsel Mary toore is ORDERED 

to file an affidavit summarizing her actions as counsel for the applicant in the primary case, 

cause number I i31353, and specifically responding to the following: 

1. Please outline how counsel investigated the applicant's case. Wias the investigation 

limited in any way? If so, please explain why. 

2. Was counsel aware of the applicant's lack of a criminal background or prior arrest 

history? Was there anything in particuiar about the applicant's lack of criminal 

background or prior- arrest history that counsel used at trial or believes would have 

been beneficial and admissible at trial that she failed to employ at trial? If so, please 

explain why. 

3. Does counsel believe that she had a finn grasp of the facts surrounding the applicant's 

case at the time of trial? Was counsel ready for trial? 

4. Please indicate if the applicant brought any potential witnesses to the attention of 

counsel that. counsel chose not to interview. If there are any such witnesses, please 

explain why no interview was conducted. 

I 

5. Was counsel aware of any witnesses that would have been beneficial or necessary to 

the defense of the applicant that she failed to interview or call at trial? If so, please 

explain why. : 

1 
6. Please indicate the nature of any grievances that the applicant filed with the State Bar 

against counsel prior to trial, and please include copies of any such grievances or 

responses to such grievances that are available. 

7. Does counsel believe that any grievances that the applicant filed with the State Bar 

affected her representation of him at trial in any way? If so, please explain how. 

8. Please indicate whether counsel believes that any actual conflict of interest existed 

between herself and the applicant as a result of any grievances filed by the applicant 

with the State Bar. 

9. Please indicate whether counsel felt it would have beenbeneficial or necessarj tc file 

a motion for discovery or a motion to suppress evidence in the applicant's case. 

Please explain why or why not. 

Mary Moore is ordered to file said affidavit with the Appellate Division of the District 

Clerk's Office, 1201 Franklin, Third Floor, Houston, Texas 77002, within THIRTY DAYS of 

the signing of this Order. 

·····-

The Clerk of the Court is ORDERED to send a copy of this Order to the applicant and to 

the State, and to serve copies of this Order, the application, and the memorandum supporting the 

application on attorney: 

Mary Moore 

1314 Texas St., Suite 1600 

Houston, TX 77002 

When the affidavit of Mary Moore is received, the Clerk is ORDERED to send a copy of 

said affidavit to the applicant, Thomas Elton McDonnel, #1562227 -Wayne Scott Unit, 6999 

Retrieve Rd., Angleton, Texas 77515 and a copy to the attorney for the State, Kevin Keating, 1201 

Franklin, Suite 600; Houston, Texas 77002. 

2 
' ·,, . 

EX PARTE 

THOMAS ELTON MCDONNEL, 

Applicant 

(~J 

Cause No. 11313 53-)( i3 

§ IN THE 248th DISTRICT COURT 

§ OF 

§ HARRIS COUNTY, TEXAS 

. CERTU~ICATE OF SERVICE 

· The undersigned counsel certifies that I have served a copy of the ".State's Proposed 

OrJu- {)e-'~5""'~-~;I'-S"'e. -"'~ ~ ... F,"/i'n.!l Aff'c.\ov ;.J--

Findings of Fad, Cgaell:lsiefts ef lam, and Onief" in cause number 1131353-B to the applicant 

on January 10, 2012 by mail as follows: 

Thomas Elton McDonnel· 

#1562227- Wayne Scott Unit 

6999 Retrieve Rd. 

Angleton, Texas 77515 

Kevin 

k:-~ P. Keating .. 

Assistant District Attorney 

Harris County, Texas 

1201 Franklin, Suite 600 

Houston, Texas 77002 

(713) 755-6657 

Texas Bar ID #00787813 

4 

FILED 

Chris Daniel 

District Clerk 

JAN 1 0 20\2 
..-' •. : .... , c 

The Clerk of the Court is ORDERED NOT to transmit at this time any documents in the 

above-styled case to the Court of Criminal Appeals until further ordered by this Court. 

By the following signature, the Court adopts 

the State's Propo d Order for Filing Affidavit. 

Signed day of 2011. 

JAN f.7 2012 

3 

l .. 

EXHIBIT "8" 

- Motion: To Compel Compliance -
. "' ' 

Thomas E. McDannel 

Wayne Scott Unit 

6999 Retrieve Rd. 

Angleton, TX 77515 

April 1, 2013 

Attorney General 

Harris County Clerk 

Attorney Moore 

Re: Filing of Motion 

Cause: 1131353-8 

Greetings, 

Enclosed you will find the MOTION TO COMPEL COMPLIANCE WITH 

STATE'S PROPOSED ORDER DESIGNATING ISSUES AND ORDER FOR FILING AFFIDAVIT. Included is the Court's Copy, Clerk's Copy, Attorney Ms. 

Mary Moore Copy mailed to 1314 Texas Street, Ste.,#1600 Houston, 

Texas 77002 and Attorney General Greg Abbot, Post Office Box 12548 

Austin, Texas 78711-2548. 

Enclosed you will also find my self addressed & stamped envelope for return of the filemark, date and stamped copy for my personal records in this action before the Court. 

Thanking this Honorable Clerk's Office for your timely attention to this most important legal matter. 

cc: AG Greg Abbot 

Attry M. Moore 

Respectfully Submitted, 

-~~ z. ~C/~'M/ Thomas Elton McDannel 

TDCJ-ID #1562227 
THOMAS E. McDONELL 

vs. 

STATE OF TEXAS 

CAUSE NO: 1131353-8 

§ 

§ 

§ 

IN THE DISTRICT COURT 

24BTH JUDICIAL DISTRICT 

HARRIS COUNTY, TEXAS 

MOTION TO COMPEL COMPLIANCE WITH STATE'S 

PRO~OSED ORDER DESIGNATING ISSUES 

AND ORDER FOR FILING AFFIDAVIT 

TO THE HONORABLE JUDGE OF SAID COURT: 

COMES NOW, Thomas E. M~Donnell, hereinafter referred as Movant, 

proceeding in own beb~lf pro-se, pursuant to the Texas Code of Criminal Procedure, Article 11 .07, § 3(d), in above listed cause and would therefore show this Honorable Court the following facts: 

I. 

Movant previously has filed a Texas Code of Criminal Procedure 

11.07 Application for Writ of Habeas Corpus with this Court on the 

7th day of September, 2012. This. Court issued State's Proposed Order Designating Issue And For Filing Affidavit from Mary Moore whom 

previously represented movant in this Trial Court as his attorney. 

This Order contained issues of fact and was certified on Jan 17,12. 

Copies were mailed by this Court's Clerk pursuant to rule going unanswered by said attorney indefinitely. 

II. 

Movant did, after said delay in answer from Mary Moore, file a 

Motion To Compel. Compliance With Court Order on the 29th of November 2012 and placed into the unit United States Mailbox with proper 

certificate of service dated and signed by movant. Said motion did 

contain movant's filemark copy with sef addressed and stamped envelope for return to movant. Movant never received said filemark 

copy from this Court's Honorable Clsrk's Office. It is now been 

(1 of 3) 
approximately six months with no reply from Mary Moore. 

III. 

Movant requests that upon attorney Mary Moore's compliance to 

State's Proposed Order Designating Issue And For Filing Affidavit 

is received by this Honorable Court and Clerk's Office that a complete copy of said answer be forwarded to movant/applicani. 

PRAYER 

WHEREFORE, PREMISES CONSIDERED, movan.t prays that this Honorable 

Court will demand compliance with its ORDER previously issued and 

with all things considered in the interest of justice and grant 

this pleading. 

(2 of 3) 

Respectfully Submitted, 

Thomas 

1~£.mcMJ E. McDonnel,prose 

Wayne Scott Unit 

6999 Retrieve Road 

Angleton, Texas 77515 

Attached Certificate of Service 
CERTIFICATE OF SERVICE 

I, HEREBY CERTIFY, that on this 1 day of April 2012, a true and 

correct copy of this above and foregoing MOTION TO COMPEL COMPLIANCE WITH STATE'S PROPOSED ORDER DESIGNATING ISSUES AND ORDER FOR 

FILING AFFIDAVIT was placed into the Texas Department of Criminal 

Justice - Institutional Division Wayne Scott Unit internal United 

States Mail System out-going-box, with proper postage attached, 

for delivery to the Harris County Criminal Judicial District Clerk's 

Office at Post Office Box 4651 Houston, Texas 77210 - 4651, as 

well as copy to attorney Ms. Mary Moore at 1314 Texas Street in 

Suite #1600 Houston, Texas 77002. 

(3 of 3) 

R~spectfully Certified, 

./ 

J~£~eu/ .. Thomas Elton M~Donnel 

Wayne Scott Unit 

6999 Retrieve Road 

Angleton, Texas 77515 
CHRIS DANIEL 

HARRIS COUNTY DISTRICT CLERK 

October 28, 20 13 

THOMAS ELTON MCDONNEL # 1562227 

WAYNE SCOTT UN IT 

6999 RETRIEVE RD 

ANGLETON, TX 77515 

To Whom It May Concern: 

Pursuant to Article ll.07 of the Texas Code of Criminal Procedure, please tind enclosed 

copies of the documents indicated below concerning the Post Conviction Writ filed in 

cause number 1131353-B in the 248th District Court. 

D State's Original Answer Filed 

D Affidavit 

[ZJ Court Order Dated October 25, 2013 

D Respondent's Proposed Order Designating Issues and Order For Filing Affidavit. 

D Respondent's Proposed Findings of Fact and Order 

D Other 

sf·~.c~q .· ,l 

R~. · a Garcia, Deputy 

Criminal Post Trial 

rg 

Enclosure(s)- AMENDED ORDER TO FILE AFFIDAVIT FOR MS. MARY MOORE 

120 I FRANKI.IN • P.O. BOX 4651 • HOUSTON. TEXAS 77210-465 I • (888) 545-5577 

PAGE I OF I REV: 01-02-04 
-('~ 

.. f~ ~;, 2 o~,-?'i-.S. r}. .,,~ ·, ~/. 0 ~} 

'C.r· · · .J /o :1 ~ (?!- · ->:2~. :;u co, <¥~"? c, C.~se No. 113 13 53-B 

""-- / _:;. ' . (} ~'+ 

EX PARTE '<:~\~.;·;,... ~~? § IN THE 2481h DISTRICT COURT ~., (~;,·~,.. .... .. 

.. ~~' ... :;;., 

·'·"•:,, ~ § OF 

THOMAS ELTON MCD~~ § HARRIS COUNTY, TEXAS 

Applicant ([j' 

AMENDED STATE'S PROPOSED ORDER DESIGNATING ISSUE 

AND FOR FILING AFFIDAVIT 

Having considered the application and supplement appli;;,ation fur vvrit of habeas corpu5 in 

the above-captioned cause and the State's original answer, the Court finds that the issue of whether 

the applicant was denied effective assistance of counsel still needs to be resolved in the present 

case. 

Therefore, pursuant to Article 11.07, §3(d), this Court will resolve the above-cited issue 

and then enter findings of fact. 

To assist the Court in resolving these factual issues, counsel Mary Moore is ORDERED 

to tile an affidavit summarizing her actions as counsel for the applicant in the primary case, 

cause number 1131353, and specifically responding to the following: 

I. Please outline how counsel investigated the applicant's case. Was the investigation 

limited in any way? If so, please explain why. 

2. Was counsel aware of the applicant's lack of a criminal background or prior arrest 

history? Was there anything in particular about the applicant's lack of criminal 

background or prior arrest history that counsel used at trial or believes would have 

been beneficial and admissible at trial that she failed to employ at trial? If so, please 

explain why. 

3. Does counsel believe that she had a firm grasp of the facts surrounding the applicant's 

case at the time of trial? Was counsel ready for trial? 

4. Please indicate if the applicant brought any potential witnesses to the attention of 

counsel that counsel chose not to interview. If there are any such witnesses, please 

explain why no interview was conducted. 

'L-i - I IJ "· U r·~ i 
5. Was counsel aware of any witnesses that would have been beneficial or necessary to 

the defense of the applicant that she failed to interview or call at trial? If so, please 

explain why. 

6. Please indicate the nature of any grievances that the applicam filed with the State Bar 

against counsel prior to trial, and please include copies of any such grievances or 

responses to such grievances that are available. 

7. Does counsel believe that any grievances that the applicant filed with the State Bar 

affected her representation of him at trial in any way? If so, please explain how. 

8. Please indicate whether counsel believes that any actual conflict of interest existed 

between herself and the applicant as a result of any grievances filed by the applicant 

with the State Bar. 

9. Please indicate whether counsel felt it would have been beneficial or necessary to tile 

a motion for discovery or a motion to suppress evidence in the applicant's case. 

Please explain why or why not. 

I 0. Please indicate whether counsel "opened the door" to Applicant's extraneous offense 

on cross-examination of the State's witnesses. If so, please state counsel's trial 

strategy for "opening the door" to Applicant's extraneous offense. 

11. Please indicate whether the State commented on applicant's failure to testify during 

closing argument. If the State commented on applicant's failure to testify during 

closing argument, did counsel object and preserve the issue for appeal? If the State 

commented on applicant's failure to testify during closing argument and counsel did 

not object and preserve the issue for appeal, please state counsel's strategic reasons 

for doing so. 

Mary Moore is ordered to file said affidavit with the Appellate Division of the District 

Clerk's Office, 1201 Franklin, Third Floor, Houston, Texas 77002, within THIRTY DAYS of 

the signing of this Order. 

The Clerk of the Court is ORDERED to send a copy of this Order to the applicant and to 

the State, a;1d to serve copies of this Order, the application, and the memoranJum supporting the 

application on attorney: 

Mary Moore 

1314 Texas St., Suite 1600 

Houston, TX 77002 

2 
When the affidavit of Mary Moore is received, the Clerk is ORDERED to send a copy of 

said affidavit to the applicant, Thomas Elton McDonnel, #1562227- Wayne Scott Unit, 6999 

Retrieve Rd., Angleton, Texas 77515 and a copy to the attorney for the State, Aimee Bolletino, 

1201 Franklin, Suite 600; Houston, Texas 77002. 

The Clerk of the Court is ORDERED NOT to transmit at this time any documents in the 

above-styled case to the Court of Criminal Appeals tmtil further ordered by this Court. 

By the following signature, the Court adopts 

3 
Cause No. 1131353-B 

EX PARTE 

THOMAS ELTON MCDONNEL, 

Applicant 

§ fN THE 2481

h DISTRICT COURT 

§ OF 

§ HARRJS COUNTY, TEXAS 

CERTIFICATE OF SERVICE 

The undersigned counsel certifies that I have served a copy of the "State's Proposed 

Order Designating Issue and for Affidavit" in cause number 1131353-B to the applicant on 

September 30, 2013 by mail as follows: 

Thomas Elton McDannel 

#1562227- Wayne Scott Unit 

6999 Retrieve Rd. 

Angleton, Texas 77515 

'-~ Aimee Bolletino 

Assistant District Attorney 

Harris County, Texas 

1201 Franklin, Suite 600 

Houston, Texas 77002 

(713) 755-6657 

Texas Bar ID #2405671 7 

4 
EXHIBIT 11 C" 

- Motion: For a Live Plenary Evidentiary Hearing -
EX PARTE 

THOMAS E .. McDONNEL 

Applicant 

CAUSE NUMBER 

1131353-B 

§ 

§ 

§ 

IN THE 24BTH DISTRICT 

COURT OF 

HARRIS. COUNTY, TEXAS 

APPLICANT'S MOTION FOR A LIVE PLENARY 

EVIDENTIARY HEARING 

TO THE HONORABLE JUDGE OF SAID COURT: 

COMES NOW, Thomas E. McDannel, Petitioner prose in the above 

numbered and styled cau~e and files this motion for a Live Plenary 

E vide n.t i.a r y Hearing and Bench Warrant, pursuant to art. 11 . 0 7 of 

the Tex.Code. Crim. Proc. and will show the Court as followed: 

I. 

A. Petitioner 

1 . 01 Thomas E. McDonrrel, TDCJ-ID #1562227, is an offender 

incarcerated in the Texas Dep.t. of Crim. Justice (TDCJ) and is 

prose, who can be located at the Wayne Sco.t·t Unit, 6999 Retrieve 

Rd., CR 290, Angleton, Texas 77515. 

1 . 0 2 Petitioner has repeatedly petitioned this Court to ·act 

on Petitioner's 11.07. Petitioher requests the Court to take judicial notice of the District Clerks file on the above cause number and obtain motions and inquiries asking that the issues be 

resolved. 

1.03 The previous presiding judge, Judge Cambsll, did in 

fact order the· Court Clerk .not to transmit any doc u m e.n t s in the 

above styled case until further notice due to the fact that there 

were issues to be resolved by this said Court. 

1 . 04 The defense c.ounsel, Attorney· Mary Moore, was issued a 

notice to answer by affidavit the questions set forth in the Petitioner's 11.07 Writ of Hab~as Corpus. The defen~e attorney has 

been issued several notices to answer ths aforementioned affidavit. 

To this date the Petitioner has not received a copy of the affidavit nor has any of the documents been tran~mitted to the Court 

-1-
.. 

I 

I 

of Criminal AppealB" If the~e.ab.ove styl~d documents had been 

t r a n s m i t t e d . t o t h e C o u r t . o f C r i m i n a l A p p e a.l s· , t h e . P e t i t i o n e r w o u l d 

have- been notified. 

The. State, Feder~l and Supr.eme Court case.- law_ mandates that 

when an. applicant. files a. collateral attack on ··his criminal conviction , t h.e initial task is . to. ·de t.e.r mine whet h e.r his allegations 

if proven would establish the right to HabeEs ~elief. If so proven, 

he is:enti~led to .an evide~tiary hearing to further develop the 

factual .. basis w~th facts outside the record. Ex Parte Reyna, 702 

S . W. 2 d 9 21 ( T x . C rim . A p p . 1 9 8 6) ; Streetman v . 'Lv n aug h , 81 2 F. 2 d 9 50 

( 5th C i r . ) ; Towns e_nd v . Sa in , 3 7 2 U . S . 2 9 8 , 3 0 7 , 8 3 S .. C t . 7 4 5 , 

9 L.Ed.2d 770 (1963). 

II. 

Applicant asse.rts (inter alia) .constitutional ineffectiveness 

of trial counsBl, prosecutorial misconduct, ~nd error of the trial 

court. In seeking th~ instant Live Plenary Evidentiary Hearing to 

prove these assertions, Applicant has need to develop facts that 

are presently outside the record. It will be impossible for this 

Honorable Court to adequately determine the merits of Applicant's 

claim without· further develop me n.t of these facts that are outside 

the record. The need to fully develop the record is of the utmost 

importance because the Court of Criminal Appeals will be .limited 

to the record as it was developed within; the trial court. Galvin 

v. State, 869. S.W.2d 526, 527-29 (Tx.App. - Corpus Christi 1993). 

As the record now stands, it is totally inade.quate for the Court 

to perform its .required duty. 

I I I. 

Inordinate- Delay: 

1 . 01 The Court , the ·.District Attorney , and . the Petitioner ' s 

defense counsel, Mary Moore, ·have wholly failed to comply with 

article 11.07 df the Tex.Code Crim.Proc., are actin~ in bad faith 

and have not afforded Petitioner with profes&ional and common courtesy at resolving these issues in Petitioner's 11.07 as so order-

-2-
. ' 

ed by the 

1 . 0 2 

previous judge. 

Wilwording v. Swenson, 92 S.Ct. 487 at. 249-250 (rejecting 

suggestion tha.t Sta.te prisbner should have invoked any other possible alternative to state habe~s. including a suit for injunction, 

a writ of prohibition, or mandamus or declaratory judgment in 

State's court o~ perhaps ot~er relief under State Administratio~ 

Procedure Act.). In Turner v. Bagley, 401 F.3d 718 {6th Cir. 2005) 

28 U.S.C. 2243 confers Federal Courts with the discYetion to dispose of Habeas Corpus matters and tailor remedies as law and justice requires. 

CONCLUSION 

The Petitioner has shown this Court that under the Sixth Amendment of the. United States CO,nstitution he has been denied the 

right to effective assistance of counsel as·well as dus process of 

la~. The District Court has deni·ed.Petitioner due process of law 

by delaying to rule on his 11.07 Writ of Habsas CorpuB. As a prose 

litigant, Petitioner respectfully asks this HDnorabla Court to 

grant his motion for A Live Ple.nary Evidentiary Hearing. 

PRAYER 

WHEREFORE, PREMISES CONSIDERED, Petitioner prays that this 

~otion will b.e. granted, a bench warrant issuerl, and a ruling be 

is~ued that have been filed in the cause number and grant Petitioner any other orLadditional reLief he is justly entitled to, it is 

so prayed. 

-3-
• 0 

CERTIFIC.ATE OF SERVICE 

I hereby ce~tify that a true. copy of th.e foregoin~ instrument 

wa~ served to the District Court Clerk by placihg a. copy in the 

U.S. mail addressed to: 

Harris County;Courthouse 

248th District Court 

1201 Franklin St., 16th Floor 

Houston, Texas 77002 

EXECUTED on the 

Thomas E. McDannel 

#1562227 

Wayne Scott Unit 

6999 Retrieve Rd., CR 290 

Angleton, Texas 77515 

day of 

-4-

2 01 4. 

Respectfully Submitted, 

T4lomas 

zL~~ E. McDannel 
EXHIBIT "0" 

- Motion: To Have Previo~E Motions Ruled On -
• } ) "!:"\ 

i:, / /> . 

~ "~0.'•-1:; ;4,,·· ~- ?/, 0';.-:1:9,-·..-::. 'l \.)' ,y_ Lf'<;< 

• .·· .__,~ C' ~ 0>·~· 

Chris Daniel "i:. ':~ Oc!;..rJ~,· 

H a r r i s Co 

4

u n

6 

t

51

y D i s t r i c t C l e r k :r,..-1'>' /..> '1:>-f}:~j~~ 

-------------~-~-~-~-t-~-~-~~e->ca---s7T2T0-=-4-6_5_1 ________ Tt,'i 2 7· ·~J::!..Q-~- J}_-------------- --~~~ ----- -~ ~\- .. v ..:.u~ JJ ~., (#. 1!1. t ·y"· • ;6 

Nov ember 21 04 ~b. ·vv1 '(1:;.: . VY 

R E : M o t i o n P u r s u a n t t o F e d e r a l R u l e s o f C i v i l P r o c e d u r e R u 1 e 7 2 . \~b~- To have motions ruled on: ~ 

'~ C h r i s D a n i e 1 11 

Dear Sir: 

I have enclosed a motion for ruling according to Fed. Rules of 

Civil Proc. Rule 72, for filing with your office and also to be 

considered by the 248th Judicial District Court Judge Katherine 

Cabanis presiding. I have a self-addressed stamped envelope to be 

returned unto me with this coverletter, requesting that you please 

file date stamp it and return to me using said envelope showing that 

this motion was presented to said Court and Judge presiding. 

Your cooperation, time and patience is greatly appreciated. 

Thank you. 

Thomas E. McDannel #1562227 

Wayne Scott Unit 

6999 Retrieve Rd. 

Angleton, Texas 77 51 5 

C/C 

Filed: 

Respectfully Submitted, 

Thomas E. McDannel 

Date: November ,2014 
.... 

Cause Nos. 113153-B & 

Ex Parte 

------Tliomas E. McDannel 

§ 

§ 

§ 

PtAINTIFF MOTION PURSUANT TO FEDERAL RULES OF CIVIL 

RULE 72. TO HAVE HIS NUMEROUS PENDING MOTIONS RULED ON: 

TO THE HONORABLE JUDGE OF SAID COURT: 

COMES NOW, Thoma~ E. McDannel, Plaintiff herein, proceeding 

Pro se and in support of this motion will show this Honorable Court 

the following: 

I. 

p 1 ai n t i f f. i s . e n t i t l e d to have m o t i o n s r u l e d on t h a t ate ·no t 

dispositive of the entire Cause of Action. See Fed. R. Civ. Rule 72; 

"Non-dispositive Matters. When a pretrial matter not dispositive of 

a parties claim or defense is referred to a trial Judge to hear and 

decide, the trial Judge must promptly conduct the required proceedings and when appropriate, issue a written order stating the deci~~ 

sian. A party may serve and file objections within 10 days after 

being served with a copy." 

II. 

Plaintiff has the following motions pending for which he is 

now seeking a ruling: 

1 .) Plaintiff's Application of Writ of Habeas Corpus Cause No. 

113153-B wherefore Assistant District Attorney for Harris 

County and said Court designated issues on the date of 

February 14, 2011. "Applicant was denied the effective 

assistance of counsel.'' Controverted praviously unresolved 

facts material to the leqalitv of ApplicaMt's confinement 

and needs to b~ resolved. 

2.) ?laintiff's motion for a Live Plenary Evidentiary Hearing, 

filed on October 9, 2014. 

-1-

\~ 
PRAYER: 

WHEREFORE, premises considered, Plaintiff prays that this motion 

-----G:ri-rrBe gran'fed and thereafter a ruling be issued on each motion that 

has been filed in these causes, and grant Plaintiff any other or additional relief he is justly entitled to, it is so prayed. 

CERTIFICATE OF SERVICE: 

Service has been accomplished by mailing a true and correct 

copy of the following forgoing instrument to the following address: 

Chris Daniel 

Harris County District Clerk 

P.O. Box 4651 

Houston, Texas 77210-4651 

Executed on this day of I~ November 2014, under both Federal Law (28 U.S.C. §1746~ and State Law CV.A.C.C. Proc. & Remedies 

Code §132.001-132.003). 

-2-

Respectfully Submitted, 

'7 ~~ t[ lv 0~.__/' Thomas E. McDonnel 

TDCJ-ID #1562227 

Wayne Scott Unit 

6999 Retrieve Rd. 

Angleton, Texas 77515 
EXHIBIT "E" 

-Letter: Inquiry and Notice to File Mandamus.-
4, 

June 17, 2015 

Harris County Courthouse 

Clerk o~ Court - Chris Daniels 

1 201 Franklin St. 

Houston, TX 77002 

RE: Writ of Habeas Corpus Application 

Cause No. 11 31353-B 

Dear Honorable Clerk Da~iels: 

I am writing to you because you have not complied with Article 

11.07, §3 (c) of the Texas Code of Criminal Procedure. On August 31, 

2011, I filed my original 11.07 hlrit of Habeas Corpus Application. 

The Court designated. issues, but then ~L\.•did not hear any·thing after 

that. So, on January 10, 2012 I filed. a 11 State 1 s Order· to Comply 11 

motion with the court • Then on Apr i 1 1 , 2 01 3 I f i 1 e d · a motion 11 To 

C o m p e 1 C o m p 1 i a n c e 11 w i t h t h e C o u r t . I t h e n f i 1 e·d a n Am e n d e d 1 1 . 0 7 

Writ of Habeas Corpus with the Court on 09-25-2013. On October 9, 

2 0 1 4 I f i 1 e d a m o t ion 11 For a Live P 1 e n a r y · E v i de n .t i a r y H·e ar in g 11 • An d 

finally on November 17, 2014 I filed a motion 11 To Have Previous 

Motions Ruled On 11 • 

To this date, my motibns hav~ not been ruled on (if they have 

then I have not been provided with a copy of the ruling) and my 

11.07 Writ of Habeas Corpus Application has not been forwarded to 

the Court of Criminal Appeals. 

Per T C C P 11 . 0 7 , § 3 ( c ) , you are required to immediate 1 y . transmit to the Court of Criminal ~ppeals a copy of the applic~tion, any 

answers filed, and a certificate. reciting the date upon which that 

finding was made, if the convicting court decided that there were 

no issues to be .resol.ved. In my ·c.a•se.,·,··ther'eo.were.:is"SUes~·:designated 

to be resolved. In that case, I believe. you are given 180 days to 

resolve the issues and if you (the Court) has not, then you, Clerk 

Daniels, are required to immedicately send the above listed ite~s 

to the Court of Criminal Ap~eals. You have faile~ to do this. Since 

my original. Application was mailed to you, it has been almost four 

(4) years and since the Amended Application was sent it has been 

just over one and a half years. It' is beyond time to send everything to the Court of Criminal Appeals. It is to the point now where 

you are acting in bad faith. 

This letter is to serve two purposes. The first, is to request 

o n e 1 a s t t i m e f o r y o u t o f u 1 f i 11 y o u r d u.t y a s t h e H a r r i s C o u n t y 

Clerk, and mail my 11.07 Application, any answers filed, the certificate reciting the date upon which the findings were made, exhibits, 

and r~ason for untimely delay in doing. so to the Court of Cri~inal 

Appeals. The second purpose, is to.inform you that I will be filing 
' 

a Writ of M.andamus to the Court of Criminal Appeals if I do not 

receive notiGe from.them within 14 business days of this letter 

that you have transmitted to them.all the a.ppropriate doc~ments. 

'. 

It is my understanding that the convicting Judgs, Judge Cambell, 

i s n o 1 o n g e r t h.e r e a n d t h a t H o no r a b 1 e J u d g e K a t h r i n e C a b a n i s i s 

the sitting judge at this time. It was for this Very reason that 

I submitted my motion for a Live. Plenary Evidentiary Hearing. 

I have enclosed a ~ASE for the purpose of sending me a file 

m a r k e d I d a t e s t am p e d c o p y t o m e .s h o w i n g y o u r .r e c e i p t o f t·h i s 1 e t t e r 

and notice of intent tb file a mandamu·s. Also~enclosed, inside the 

SASE , is the first page copy of this 1 e t t e r for you · t·o use in f i 1 e 

marking/date stamping. I appreciate your timely response to this 

matter and pray that you will follbw the rules ~rovided in TCCP, 

11.07, §3(c). Thank you. 

Sincerely, 

~L~,WJ/ 

Thomas E. McDannel 

TDCJ-ID #1562227 

Wayne Scott Unit 

6999 Retrieve Rd. 

Angleton, TX 77515 
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