Case Information

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$83,870-01$

IN THE 346 THE DISTRICT COURT RECEIVED IN OF TARRANT COURTY, TEXAS COURT OF CRIMINAL APPEALS SEP 222015 EXPANTE NO. C. 346-01040444-00000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000

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IN THE 346 DISTRICT COURT of tarant country, texts

EXPANTE No. C-346-010404-1144411-A FINNIS DRNIS II APPLIANT'S dBilections TO THE COURT finBINDS of FECT AND CONCIUSTINS OF LAW TO THE HONORABLE COURT OF CRIMINAL APPEALS:

comes now Finnis DANis II Files. Applicants objections to the courts findings of fact and conclusions of law would show as follows:

I.

Deficient рейfomance

Ground for relief othe? Trialcourtfound that counsel this Harris made reasonable trial strategy decision not to hire a ballistics expert or present ballistics evidence in this case, state said applicant present no evidence that saidi Tabor committed perdant about how many shots were fire. Applicantcontentshe showed that ms Tal lor did committed fex 2unt from the record that only one 1 bullet was found at thecrimeserne. (FINNIS 3,496) ms. Harris said based on ms experience that people being shot at frequently do not recall correctly how many shot were fired. ms. Harris concluded that ms. Talors account of the incident

*3 was not inconsistent with the evidence. That is unsupported by the record. Also counsel Harris is saying he is believing that the applicant shot more that one time, when the evidence for the record shows that one projectile was received see (RH/vol.38b3) This Taffor said applicant shot lower five times see (RH/vol.48b4-6) This Taffor statement was not corroborated by the evidence. See office christopher gains testimony revealed that no-bullets or bullet holes were found even after searching the complete designated crime area see (RH/vol. P228:17-25) 325 nothing consistent with this Taffor account of the incident. For me, Harris to say something like that shows how much Mr. Harris investigated this case. Also when Taffor said them statement that the applicant shot lower-five-times at them while they was in Mr. Paney car see (RH/vol. 48b1-6) it tainted the dutymimes, because counsel Mr. Harris did not object to that so the judge could tell the duty, disregard them statements. Them statements I arn, Applicant because the duty was thinking that the applicant was shooting that many-times as the same was as the second court of AReals did because in their memorandums opinion they use them same statements to affirmed the applicant conviction. Also secondcourt of AReals relied on them statements that applicant shot multiple times to show applicant intended to kill both Taffor and Paney.

*4 Mr. Harris concluded that it was possible that some of the shots either missed the car entirely or passed through the open windows. Yes Mr. Harris came-up with these theory of what happened to the other bullets. This is deficient Performance by Mr. Harris because applicant contents that a 1 year before trial was even set also before trial started applicant not only told Mr. Harris he didn't shot Mr. Ronel, also applicant had drew a maze of the crime scene telling Mr. Harris what state found one bullet because applicant only shot one time Mr. Harris told to make it look like his own client was shooting more than one time Mr. Harris destroted the the applicant credibility of Just shooting one-time. Also In Mr. Harris affidavit 83 Mr. Harris said the crime scenesearch officer testified that both front windows and the sunroof of Mr. Ronel car were open. Thus it was quite possible that some of the shots either missed the car entirely or passed though the open windows on both sides of the care. This statement is unsupported by the record see (PR. Vol. 9, P228 5-15) line 5 a the windows in the vehicle were open is; line 6 that correct? 7 A not all of them: 8 a which one was closed 7:44. The rear windows on the two rear door: 10 a both rear doors 7:11 A. Yes: 11 a but with the two front door windows open: 13 thereat least a possibility that other shots may have: 14 pass completely through the car with-out striking: 15 ANY-thing: 16 A Yes. But the fact still stands that the crime scene search officer found only one bullet-seequivd 4924 15-9).

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• so were did all the bullets go to. First of Mr. Tailor did not say applicantshoting air. No Tailor said applicant shot at them while they were inside the Vehict >cathin vol. 4 P6167. NowIf that applicant shot over five"at the car and even he miss, were did the shots go to? A ballistic expert, woid have presented the duty with conflicting evidence as to the number of shots actually fired during the commission of the crime would have undermined Mr. Tailor number of shots. She said was fired at them by the applicant. Now about the gun shot residue Mr. Harris said is detectable onlton the hands of people who have fired a gun how do Mr. Harris know this, inés not aballistics expert. Did Mr. Harris get that information from aballistic expert if so m. Harris should had the a ballistic expert to do affidavit to that statements. Also This finding ignores the case law holding unguivocally that neither a loj nor an expert witness properly testify to an opinion that another person is telling the truth or king A testimony, the that could not have hely, applicant under any theory.

*6 Ground for relief Two. Trialcourtconcluded there is no evidence that Mr. Harris should have made a Batsonchallenge. But for the counsel failures to properly object by requesting a Batson Challenge to the strifing of the only I Three African-American Jurors who were strichen with-out cause on in the ery least could have requested as huffling of the du1t-pool denid the applicant a constitutional rightouaranted by the $5^{\text{th}}$ and ${14}^{\text{th}}$ Amendment of the constitution to be tried by a fair impartial JurY consisting of fair demographic of the racial mathe-up of the the county from which heis being tried Tarrant county is not all-whites? Ground for relief Three Trialcourt found that counsel Mr. Harris made reasonable trial strategy decision not to requesta competency hearing after applicant returnfrom the state hospital Mr. Harris relied exclusively on the report from vernon state hospital when in fact Mr. Harris had mere sources other evidence tate into condisider then alust the state hospital findings (1)Applicant been diagnosis with 8 stshetic-disorder from every expert that evaluate applicant (2)Applicant had a long history of mental illness problems and being a Patient with Tarrant county MHMR service from some years. (3) In 2007 b1 2010 applicant was receiving a sST check from the United state social security administration for having a mental

*7 illness' dress. Applicant was admitted to state hospital then 32 doyslater an evaluation from the state hospital declares applicant competent to stand trial. Such circumstance should have prompted Mr. Harris to request an competency hearing or at-least have-the two psychologist that rendered applicant competent to re-evaluate their prior findings.

Groundfor relief Five! Trialcourt found that counsel Harris made reasonable trial strategy decision for the treatment of the threatening letter and Trialcourt concluded Applicant present no-evidence to who wrote the Threatening letter. This is a miss-statement of thefacts, Applicant contents he presents evidence that ms Tailor wroteor had some-one to write the letter in the state Hobeas Exhibit on this ground Mr. Harris said even if ms Tailor had directed the writing of the letter, in light of what happened to her"he did not think that drawing-out fact-that she had written this letter or solicited its writing, would benefit the applicant. This statement of Mr. Harris shows bias its abivous mr. Harris wasit going to help the applicant. Mr. Harris had already Pre-didge is on client on the offense. The applicantdidint Stand a chance - with Mr. Harris as his laver. This threatening letter would have show the vindictive nature of ms Tailor and show how she provides and Play headgames withapplicant

*8 and, show her true character, and Mr. Harris did not think that letter would not help the applicant defense d. all. creah of course Mr. Harris didn't it would! Ground for relief sir! Trial court found that counsel Mr. Harris made reasonable trial strategy decision not to present an insanity defense on this claim. Applicant content to Trial counsel make some exploration of insanity defense but failed to fully investigate all the applicant mental history Mr. Harris fail to pull-up applicant records from the United States social security administration because applicant was receiving 351 check for mental illness dress. In 2007 from 2010 which Mr. Harris knew about see, state Habeas Exhibit in Ground. Also the state hospital even said the applicant comitted this crime under Analloy impairment of a synthetic disorder was see. Exhibit (a) under formulation 3 and 7. Applicant never said he was not invited applicant told Mr. Harris he don't remember because Applicant had been off his heads about six months before this offense had occurred and that other people said applicant might could been with them when the offense had occurred. Applicant that didn't mean he was not invited he just didn't remember at first nothing about the offense because he had been off his heads. see state Habeas Exhibit in this Grand. Mr. Harris just did what ever he wanted, as if applicant was saying he was not invited and railroaded his evinement.

*9 Groundfor relief seven? Trialcourt concluded in this Ground the Applicant was suggesting that counsel improperly advised the trialcourt that he feared his client wouldcommit orczy. This was not theisote that the applicant was complaint about. Mr. Harris action also impermissibly compromised applicant right to testify asf further in hisowidefense. Applicantcontents his S. b. H. U.S constitutionel Amendment were violated. Also on this Bround see state Habers Exhibit affidavit on Applicant Version of what happen ed on may ofi 1918. Groundfor relief Eight? Trialcourtfound that counsel Mr. Harris made reasonable trialstrategy decision not to requestthat Applicant be examined for competency before he was remote during trial. Mr. Harris said nothing in the applicant conduct at trial indicated to him that applicant was acting-out because he was inspired by delusions hallucinations voice ordering him to do so orand thing else that suggested that his actions were caused bymental illness as opposed to hisr argumentative and manipulative Personality. First all how do Mr. Harris know all this was mr. Harris inside of the applicant head to know what applicant was thinking orfecling at the same oftrial.

*10 Mr. Harris said that applicant was Argumentative theseare her symptoms of a person diagnosis was ostehoitic disorder delusions result inaggression behavior Also you well put on self-defeating against those that you believe are out harm You Hallucination they may angbig criticisms of what you think or do see, masculinic Paranormal schizophrenia. These are symptoms Applicant was displaying during trial Applicant did affidavit on his actions during Trials. See state Habers Exhibit on this Grund. Ground for relief nine. Trial court concluded that applicant has failed to prove that counsel failed to obtain Mr. Ponel medical records before trial. This incorrect something aim Hard to see Applicant contents its nothing at trial about Mr. Ponel medical records. There were no - expert phisicians to testify to the type of wound sustained by the victim; nor any-doctor reports. All of this is found in applicant trial. Mr. Harris was so ineffectivness for not having theregusted documented evidence in the initial'lerth record. Also Mr. Harris believe that he said Mr. Ponel's medical record as part of the state File. What kind of answer is that Mr. Harris should know whether he seen them or not. Mr. Harris should have had some notes on Mr. Ponel

*11 medical report from his own Files about theapplicantcase. Mr. Harris had notes about every" "rise in and his Files applicant had kept of Mr. Harris any client files nothing was in their about Mr. Poney medical records I wonder when Mr. Harris concluded that the testimony at trial was consistent with the wound suffered by Mr. Poney. That's unsupported by the record nothing in the paramedictestimony was consistent with what Mr. Poney and state clam Poney injury is from. The Paramedic Tobias Theisen its nothingconsistent with his description that Mr. Poney wound was in fact done by bullet. His testimony characterizing Mr. Poney inwrit. didnot support the states burden of proof. When he labelized Mr. Poney injury as a large mematoma, which he defined as a brusing up area, basically alarge bruise see(AR, vol. 5, 839; 23-25) Paramedic testimony said it was a went of wound that lootied to be made by a ice-preth. strob or a piece of glass from a broken window see(AR, vol. 5, 840). The paramedic undermined the state case, but Mr. Harris did not-cross-examine the one-person who could have help applicant case about Mr. Poney injury was not from being shot with a gun. Mr. Harris abound his role to be atrial counsel to defense and help the state convict his own client with-out medical proof from the hospital.

*12 Ground for relief eleventh Trialcourt concluded that counsels attempt to advise applicant regarding the states ple-offer was the result of reasonable trial strategy. First of all how how can Mr. Harris recall discussing and Plea-Bargain. If he do not recall if a Plea-was ever offer see Harris affidavit P.II. Applicant contents Mr. Harris allowed the offer to expire with-ost. Prefinal status core. Pleacut-off date was February 6th,2012 see(ANN, 2 P 36/13) check and see did the applicant sign on that date to reflected the offer for Plea-cut-offdate. The reason why because Mr. Harris Harris if his clientinsist to him that he is innocent do not think I can ethically try to persuade him to accepted a Plea even if the evidence against him is overwhelming and mr. Harris said that is not his practice and it was not his practice in this case see Harris affidavit. Yes their was a Ple-bargain offer for 20 years (ANIVO, 2 P 46/ 1620) The supreme court now hold that as agenetal rulery defense counsel has dutt to communicate formal offers and must beon the record from the Prosecution to accept terms and conditions that may be favorable to the accused and exception to that rule need not be explored here for the offer was one with a fixed expiration date. When the defense counsel allowed the offer to expire with-out advising the defendant to take it or allowing him to consider it. Defense counsel

*13 did not render the garanted effective assistance of counsel the constitution required Missouri V Fryes, 566052012 citation amitted see companioncase Laffer v cooper 54605 (2012) (citation omitted). (note) Applicant contend he present proof that counsel mr. Harris Fell belows an objective standard of reasonableness from the evidence in his Exhibits in most of his Bround for the trial court to a blind eye to the evidence they made unreasonable determine of their findings But its otat for counselmr. Harris to believed and guess and speculate about the evidence. When you all can find out the truth. But the trial court rather go around thetruth and consider Mr. Harris made reasonable sound strategy.

In Smith VMEcarmich 914 F2d 1153. (9"Gr 1990) Ergar's affidant are inadequate to resolve whether counsel was ineffective.

Ground for relief foure Trialcant concluded applicant has failed to prove that counsel should have appointed him new counsel. That finding is incorrect Before Trialstarted applicant made a compliant about his trial counsel undivided loyalty and distrust see (RR, vol. 2 P 38-46) Also when applicant was making the Compliant about his trial counsel actions Mr. Harris did not rebuttol any of them statement by applicant check the record and see. (RR, vol 2 P38-46) also trialcourt was in Error for not telling is rorant constitution right that he could have a another counsel.

*14 Then his trialcounsel was about to become a second Prosecutor for state had Mr. Harns waslScaredapplicant foom testifying on the sland. Trialcourt concluded the applicant didfiveded anotherfally. Ground forrclict Ten! Trialcourt concluded Applicant has failed to prove that the state presented falsetestimony Also Applicant has failed to prove that the state failed to diselose evidence. ( First of All Applicant went to trial for a Attempted Capital Murder (ALC) and was convicted by a sum. Inorder to constitute this charge both victim Saudi Tallar and cscar PoneY had to be shut by. a Gun. (2) There were no expert physicians to testify to the tYfe of wound sustained by the victim nor any-doctor reports. all of this is found inapplicant trialrecord. It's nothing about Mr. PoneY medical no were. The Paramedic "Tobias Theised his testimony characterizing Mr. PoneY inlury did not support the states blunder of Proof. When helabdized Mefone injury as large mematoma seeffy, Vol. 5 P 34: 23-25) Paramedic testimony said it was an entey wound that looted to bemade by a ice-grch. strch or plece of glass from a broken window seelbit Vol. 5 P 40 ). But Prosecutor mislead the sumy with allusion to nonexistent evidence berwse when the Paramedic tetify to Mr PoneY injury their made hififf regoonable doubt about being shot with aGurt the Prosecutor would have full-out some hind of documents during the prove to the paramedic he was wrong what he believed he was treaked. Also to show the Surf as well that Mr PoneY injun? Zwe to a Gun shot wound-

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Some stuff You can see clear because in the recordand the record don't lie:

The Prosecutor and Mr. Boney said he been shot seeERRIVOLU? 145-148) without-medical Proof. If omitted evidence creates reasonable doubt that did not other wise exist the conviction must be reversed. See Mooney Holahan 294 U.S 160503.3 . Also In US Vlimbrugla 617 F2d.114-5(25" cir 1930).

II.
PHE JUDICE

When the trial counsel told the sludge hethin' his client is about to commit Perbury and the sludge. Knew applicant and trial counsel had a conflict intert with each other. When the Prosecutor mislead the dury with allusions to nonexistent evidence thatit rendered the trial fundamentally unfaar

III. Conclusion

This court should reject the findings of fact not supported by the record and erroncous legal conclusions and atder a ricustrial.

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PRAYER

Wherefore, the applicant. Prax that this court review the applicant's objections to the court findings of fact and conclusions of law because applicant did objectrions to Diat clerk of Tarrant county. on spet 11.205. Dut did thet did not give applicant the ten dots he's allowed to filed with district courts on sept 02, 2015 they made their findings of fact and conclusion of laws then two dais later on sept of 2015 the Judge stegned off unit did the Judge even both over 11107.50 applicantasting the 100 consider that than review the objections

$$\&\text{Propectuliy submitted}\backslash \&\text{Junis Dausit}\backslash \&\text{TPCJJd NO 1119538}\backslash \&\text{Micconne Illunit}\backslash \&\text{2001 5. EnithDr}\backslash \&\text{Seeville: TV 78102}$$

Certificateof service

A true cost of the above has been mailed to. Cav tof criminal APeal. R.D. 804 1870\%. Carital station, Austin TX 78711.

$$\&\text{9.17-15}$$

*17 Exhibits

Exhibit-Helchert Recovery-Plan-From North Trstate hospital For Ground six land Ground Three Ground Eight.

Exhibit-Helchert-By-When-Statefiled their Refosed Findings of Fact and Conclusion of law sept 2, 2015.

Exhibit-C The Judge sianina the state recommends on sept 04, 2015.

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Client Recovery Plan - Full Report

| Name: DAVISII,FINNIS | MPI: | 277237 | Epi: 2 | | :--: | :--: | :--: | :--: |

Plan Date: $11/8/11$ End Date:
Status: Finalized $11/9/2011$

Non

Formutation: Mr. Davis met with the treatment team on 10/28/11, for his multi disciplinary case conference. The patient's primary language is English.

Kennedy sub scales by the treatment team on 10/28/11: 1.Psychological Impairment - 30 as evidenced by his irritability, evasiveness, claims of auditory and visual hallucinations, statements of grandiosity, and claims of impaired memory. 2.Social Skills - 30 as evidenced by his lack of social relationships and lack of understanding of the feelings of others. 3. Violence - 30 as evidenced by his history of physical aggression towards others, including incident leading to most rocent arres. 4.ADL/ Occupational Skills - 30 as evidenced by his educational level, unemployment, and inability to independently maintain a home. 5.Substance Abuse - 50 as evidenced by his history of alcohol and drug use. 6. Medical Impairment - 60 as evidenced by his history of multiple medical problems. 7.Ancillary Impairment - 20 as evidenced by evaluation and/or disposition being made for serious criminal charges such as attempting to murder someone.

Diagnostic Summary and Case Formulation:

1. Reason for Admission: This 41 year old Black male was admitted to North Texas State Hospital - Vernon Maximum Security Unit on 10/20/11 pursuant to Article 46B. 073 of the Texas Code of Criminal Procedure after having been found Incompetent to Stand Trial for the charge of Attempted Capital Murder, out of the 306th District Court of Tarrant County, Texas. The patient was committed to this facility for the specific purpose of evaluation and treatment towards the goal of regaining competency to stand trial. Current commitment is set to expire or $02/17/2012$ .
2. Hypothesis Concerning Patient's Condition: The police report stated that Mr. Davis allegedly shot his ex-girffriend and the man she was dating with. He was found incompetent to stand trial while housed in the Tarrant County Jail Patient has received outpatient care services from MHMR of Tarrant County from 02-16-94 to 06-25-09.
3. Statement of Planned Treatment: The primary goal of treatment will be competency restoration. Mr. Davis will be offered psychosocial treatment interventions within the social-learning matrix of activities on the Competency Program and its point economy system. Psychiatric treatment and interventions will include prescribed medications with adjustments as clinically indicated targeting Mr. Davis' psychosis and aggression; medication education targeting increased knowledge, insight, and judgment relative to medication regime, purposes, and management; on-unit psychosocial interventions targeting an increase in safe, appropriate self and interpersonal management skill development, and competency education; Competency Group; Mock Trial; Goal appropriate On-Unit and Central Rehab Group / Classes; and COPSD to treat co-occurring mental illness and substance abuse. Weekly contact with members of the Treatment Team to develop a Personal Safety Plan targeting appropriate management of aggressive / negative impulses; monitor progress towards discharge goal of his return to court as having met the criteria for a competency hearing: Social Worker to contact Tarrant County MHMR Services - Forensic Mental health, Fort Worth, to assist the patient in developing an aftercare and support network.
4. Evidence of Treatment Success / Discharge Criteria: Mr. Davis will pass a formal competency evaluation.
5. Issues Identified but deferred to later time or other Treatment Provider: None at this time.

Mr. Davis was involved in the planning and development of the treatment plan. He does not have a legally authorized representative. Mr. Davis is aware that Tarrant County MHMR Services- Forensic Mental health, Fort Worth will be contacted monthly and provided with updated progress reports. He has signed consent for his sister, and the social worker will provide monthly contact on client's treatment progress and discharge plans. Proposed treatment was explained to the patient and he indicated that he understands the explanation provided. Diagnosis: From Diagnosis Input - Entry Date: 10/20/2011 Date: Description: Axis I: PSYCHOTIC DISORDER NOS DOLAINE DEPENDENCE Axis II: DIAGNOSIS DEFERRED ON AXIS II, DIAGNOSIS OR CONDITION DEFERRED ON AXIS I Axis III: ESOPHAGEAL REFLUX CORONARY ATHEROSCLEROSIS OF UNSPECIFIED TYPE OF VESSEL, NATIVE OR GRAFT PERSONAL HISTORY OF OTHER INJURY BACKACHE, UNSPECIFIED UNSPECIFIED ESSENTIAL HYPERTENSION Copyright (N) for braundsis for Groundrised

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SHAREN WILSON

Criminal District Attorney Tarrant County

September 2, 2015

Mr. Finnis Davis II TDCJ-ID# 1779538 McConnell Unit 3001 S. Emily Dr. Beeville, Texas 78102

RE: Davis, Finnis II - Writ No.: C-396-010409-1199412-A Dear Sir: Enclosed please find a file marked copy of the State's Proposed Memorandum, Findings of Fact and Conclusions of Law in the above listed case which was filed this date with the Tarrant County District Clerk's Office.

Sincerely,

Frieda McMillin Litigation Specialist Post-Conviction

Enclosure

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NO. C-396-010409-1199412-A

EX PARTE

FINNIS DAVIS II

$\S$

IN THE ${396}^{\text{th}}$ JUPICIAL DEPUTY

DISTRICT COURT OF

TARRANT COUNTY, TX

ORDER

The Court adopts the State's Memorandum, Findings of Fact and Conclusions of Law as its own and recommends that the relief FINNIS DAVIS II ("Applicant") requests be DENIED. The Court further orders and directs:

1. The Clerk of this Court to file these findings and transmit them along with the Writ Transcript to the Clerk of the Court of Criminal Appeals as required by law.
2. The Clerk of this Court to furnish a copy of the Court's findings to Applicant, Mr. Finnis Davis II, TDCJ-ID# 1779538, McConnell Unit, 3001 South Emily Drive, Beeville, Texas 78102 (or to Applicant's most recent address), and to the post-conviction section of the Criminal District Attorney's Office.

SIGNED AND ENTERED this $$ day of Sepinles, 2015.

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IN THE 394THE DISCICT COURT of TARANT COUNTA, TEXAS

EXPARTE No. C-39L-010409-1199412-A FINNIS DRVISIE INTRODUCTION THE APPLICANT ADJECTS TO THESTATES RESPONSE IN OPPOSSTIONS TO APPLICANTS APPLICANTION FOR WHAT OF Habeas Corpus. The sl