Court of Criminal Appeals Clerk of Court - ~bel Acosta P.O. Box 12308 Capitol Station RECEIVED IN Austin, TX 78711 COURT OF CRIMINAL APPEAlS Dea.r Honorable Clerk Acosta: OCT 05 2015 P 1 e as e . find en c 1 o s e d a co p y o f the Re s p o ns e t.h a.t I f i 1 e\d w ~1t h the Clerk o.f ·Court in Harris County on. Sept.ember 10, 2015. T~~tf'i.COSfa,Cferk Judge for that Court had· signed the Findings of Facts/State's Con~lusion of Law for my 11.07 Wr·it of Habeas Corpus two days prior to receiving my Response and my fear is that the Clerk sent you my 11.07 application and file with· it to you before they received said Response.

I request at this time that you file this. copy with the file t hat yo u h a v e. · o n me . I_! t h i s Co u r t h a s. a 1 r e a d y r e c e i v e d my 1 1 . 0 7 application, exhibits, memorandum of law, etc. for this Court's ruling, would you plea.se present it to the Court for inclusion with everything else.

Thank you very much fmr your kind assistance in this matter. I have enclosed a S.A.S.E. for your convienence so that you can return a File/Qate stamped copy of this letter to me. Respectfully Submit

uJl-2ct J7o-63 CAUSE NO. /2?.2~32-d <f' /)f}_~ 33-4 Ex Parte·.: § IN THE DISTRICT COURT OF § HARRIS COUNTY, TEXAS BOBBY HENRY § 180th JUDICIAL DISTRICT

APPLICANT'S RESPONSE TO THE COURT'S ORD£R AND RESPONSE FOR. A SUPPLEMENTAL ORDER BE ISSUED AND SUPPLEMENTAL REQUE.ST FOR A LIVE EVIDENTIARY HEARING BECAUSE THE JUDGE THAT SIGNED. THE ORDER FOR THIS PAPER HEARING IS NOT THE SAME JUDGE THAT PRESIDED OVER THESE PROCEEDS AT THIS TIME, HAVING. NO KNO.WLIDGE OF THE TRIAL,. A PAPER HEARING IS THEREFORE INADEQUATE.

TO THE HONORABLE JUDGE OF SA~D COURT: COMES NOW, BOBBY HENRY, AplLicant herein and in support of this motion will show.this Honorable Court the following: This Honorable Court iss.ued an order that is signed by the previous Judge on Jdt'l!m/::rtr' !}__ 20/2 This order is to serve the purpose of designating issues in order to further develop the record.

It will be impossible for a fair and full hearing in this c~se

t o b e t o t a 11 y d e p e n d e n t u p o n a p a p e .r h e a r i n g b y a f f i d a v i t s . T r i a 1 counsel can not be expected to. admit his own ineffectiveness, this is the very reason that a new counsel is appointed to protect the appeal. Alston v. garrisonL 720 F.2d 812, 816 (5th Cir 1983)(Coun- sels can not be expacted to admit their own ineffectiveness in the habeas proceedings in sworn affidavits). Doing so would be detri- mental to counsels livelihood .. It will therefore, require the ex- tensive knowledge and skills ofanother attorney to test the ere- ibility of his/her answers in a crucial cross-examination.

(1 ) It's beyond dispute that counsel's, the court reporter's and the .Dist~ict Attorney's and trial Judge's answers in their respec- tive affidavits w~ll all be subjected to a credibility determina- tion. This is a duty that only the Judge that conducted the trial can perform. Yet·, in· this case, 'the trial judge. understandably can not u n b i a.s 1 y assess the c red i b i 1· it y of his own a f f ida vi t . With this in mind, the Federal Courts have consistently ruled a Judge that did not conduct the trial is "disqualified". to judge the credibility of affidavits prese.nted in a habeas proceddings by the trial counsel, DA's or witnesses etc .... This is true because only the trial jud- ge has first hand knowledge to compare the 'facts that are in said affida~it(s) to what. actual~y took place.at trial. As such, a paper hearing will not be considered a fair and full determination of facts in the Habeas proceeding. Perilla v. Johnson, 79 F.3d 441, 446 (5th Cir 1996).

"Moreover, even if there has been state court findings on this issue they would not be entitled to the presumption of correctness.

State court habeas findings ·of fact are presumed· correct "only" when there has been a full and fair hearing. 28 U.S.C. §2254(d).

Armstead v. Scott, 61 F. 3d 333, 347 (5th Cir 1995).

''[I]t is necessary to examine. in each case whether a paper hear- ing is appropriate to .the nesoluti·on of the factual dispute under- lying the petitioner's claim." May. v. Collin,. 955 F.2d 299, 312 (5th Cir). Nevertheless, a factfinding procedure .that involves cred- ibility determinations and is based on a paper hearing affords the

(2) habeas petitioner a full and fair hearing when the state court judge who has presided over the petitionerls trial conducts the habeas petitioner's proceedings. (~~~stead, 37 F.3d at 208).

Next, applicant seeks to develop the factual basis of his claim against the Judge and DA. These allegations, if true, will entitle applicant to relief and, therefore, by U.S. Supreme Court decision require this Court to allow applicant to develop the factual basis of his claim .. ss, Townssnd v. Sain, 372 U.S. 293 (1963)(held; on the record in this case the District Court erred in denying a Writ of Habeas COrp.us withou.t a plenary evidentiary hearing. Pp. 372 U.S. 295-322); see also Blackledge v. Allison, 97 S.Ct. 1621, 1633 (1977) (''But Allison is entitled to care.ful conside~ation and plenary processing of (his claim) inclu~ing full opportunity for presenta-:~

tion of the relevant facts". Harris v. Nelson, 394 U.S. at 298, 89 S.Ct. at 109DY; see also Id. n.25: (When the issue is one of credi~

bility resolutions on the basis of affidavits can rarely be ~on­

elusive but that is· not to say they may not be helpful.)

The trial court ·is Not Free to ignore Supreme Court decisions.

Highwarden v. State, 846 S.W.2d 479, 481 (Tex.App. Houston (14 Dist] 1993).

Therefore, this Honorable Court is Required by Supreme Court decision to allDw applicant to develop the facts from every source that has personal· knowledge. of the factual. allegations within his habeaswapplication. see Brown v. Johnson, 224 F.3d 461, 467 (5th Cir 2GDO).

Additionally, if these presently unresolved issues are not re-

(3) solved by this Honnrable Court during a live Evidentiary hearing, it will deny applicant a fair and full opportunity to resolve them.

WHEREFORE, PREMISES CONSIDERED, Applicant prays that this motion in all things be granted, thereby ordering a live evidentiary hear- i ng be he 1 d and issue a bench warrant for Ap p,l i cant so he can per- sonally attend this hearing. In the alternative, supplement this paper hearing as requested herein and grant Applicant any other or additional relief he is justly entitled to. It is so prayed.

CERTIFICATE OF SERVICE I hereby certify tha·t a true and correct copy of the above motion was. served on Chris Daniel by placing a copy in the U.S. Mail addressed to: Chris Daniel, Clerk of Court, 1201 Franklin St., Houston, Texas 7700·2 on this the 1Oth day of 'September 2015.

c__...~.J0~)lftl3 Appl~ nt UNSWORN DECLARATION I, Bobby Henry, TDCJ-ID #1719613, presently incarcerated in the Wayne Scott Unit af the Texas De~artment 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 10th day of September 2015.

R pectfully Submitted, /I '!tltt3 enry Wayne Scott Unit 6999 Retrieve Rd Angleton, Texas 77515 Applicant, Pro se

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