"?S / 130 '@2 September 16, 2015 Derrick McDaniel ' TDCJ No. 1604271 Estelle Unit 264 FM 3478 Huntsville, TX 77320 Clerk of the Court of Criminal Appeals P.O. Box 12308 Austin, Texas 78711-2308 Re; wR-75,120-02; Trial court NO§ 2008-cR-2749-w2. Dear Clerk: Please find enclosed General Traverse for the purpose of filing and attachment to its respective habeas corpus submission. Thank you for your time & effort in this matter. Respectfully submitted/ / . Derrick McDaniel cc: file RECENE» IN couRT oF chMlNALAPPEALS SEP 21 2015 [ l of l ] AbehAcoS&a,Q!s§< CT. cRIM; APP. No..wR-75,120-02 399TH DIsT. TR. cT. No. 2008-cR-2749-w2 EX PARTE IN THE DERRICK MCDANIEL COURT OF CRIMINAL ¢O'N¢O'!¢O'>¢O'HM APPLICANT APPEALS OF TEXAS GENERAL TRAVERSE TO THE HONORABLE JUDGES OF SAID COURT: Comes now Derrick McDaniel, `applicant in the above styled and numbered case to give response to the trial court&s findings of fact and conclusions of law. Applicant hereby enters a general denial of allegations and misconstructions setout in' "Findings ~of Fact and Conclusions of Law" submitted to this Court by State's 399th trial court and criminal district attorney. Applicant maintains that his §11.07 writ of habeas corpus submission specifically delineates State's violations of his constitutional rights. Though submitted May l, 2015, Applicant McDaniel received no response to his motion for appointment of counsel to represent him in trial court initiated proceedings of "Findings of Fact and Conclusions of Law." As suchr much like his bench trial proceedings, the trial court's findings of fact and conclusions of law proceedings were conducted without a legal representative, an appointed attorney to oversee and protect Applicant McDaniel‘s interests and constitutional rights from further abuse. This traverse is intended as a blanket denial of allegations or misconstructions submitted by the State and/or trial court. Nonetheless,v Applicant discerns a need for specific objectionary denial regarding some, but not all, of trial.court's submission of findings _of fact and conclusions of law in which Applicant does not agree.. Accordingly, Applicant McDaniel applies sound reasoning} logic, and principles of law in the following elucida- tions: [l.] The trial _court's "Findings of Fact" regarding habeas corpus issues and response by defense counsel Marc LaHood were all findings of fact from a previously submitted §11.07 habeas corpus which nwas procedurally dismissed by this Court's clerk for noncompliance, in accordance with Texas Rule of Appellate Procedure 73 (see 'Writ No. WR-75,lZO-Ol). As.such, the trial court's submitted findings of fact are irrelevant to the habeas corpus at hand (Writ No. WR-75,120-02). The trial court's find- ings of fact does not even attempt to address the facts or issues of the instant habeas corpus submission. The trial court's findings ‘of fact heavily relies on an old affidavit submitted by Applicant's trial counsel, Marc LaHood, in a previous findings of fact.& conclusions of law from a previ- ous §11.07 habeas corpus submission which lacks credible merit for reasons as follow: (a.) The statements in the affidavit cannot be substantiated. In fact, the instant habeas corpus contains an affidavit by Disa Brown which refutes Marc LaHood's affidavit statement that he spoke with her' regarding McDaniel's case (see Memorandum Exhibit #5 pg.2). (b.) 'Counsel's affidavit- states: "...he [Marc LaHood] did not present the court with a confession by Applicant's twin brother, Frederick McDaniel, for several reasons." This Court should note:. First. Marc LaHood was vcontracturally retained to represent Derrick McDaniel. However¢ not Marc LaHood, but his brother Nicholas’ "Nico" LaHood (the residing Bexar County Criminal District Attorney), whom, though not a same-law-firm associate, bartered the plea bargain between the State & Derrick McDaniel. Second. Marc LaHood was a "no-show" at Applicant's bench trial. Andrew Del Cueto appeared in his stead. And, Andrew Del Cueto did in fact present the third party confession of Frederick McDaniel (see Memorandum Ground #1 pp. 10-18; Ground #2 pp. 19-28). It's this severe lacking of legal representation which brings about, in part, Applicant's assertion of ineffective assistance\ of counsel. United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039 (1984). (see Memorandum Ground #5 pp. 38-50). [2.] Trial court's Conclusions. of Law (No.4 pg.5) asserts that Applicant is arguing sufficiency of the evidence in his- habeas corpus submission at hand. Applicant disputes this asser- tion and maintains that the issue of argument was specifically that the state had "no evidence" to support a charge of kidnap- ping, Applicant's Ground 1#4» merely delineates sound reasoning as to what -constituted "no evidence" in his case. Accordingly, an allegation of "no evidence" is cognizable on a writ of habeas corpus because it results in a violation of due process. EX parte Murchison, 560 S.W.Zd 654, 656 (Tex.Crim.App. 1978); Ex parte Moffett, 542 S.W.2d 184, 186 (Tex.Crim.App. 1976). Even when the applicant pleaded guilty, as in the case at hand, if there is no evidence to support the conviction, relief should be granted, the judgment vacated, and a judgment of acquittal rendered. Ex parte Perales, 215 S.W-3d 418, 420 (Tex.Crim.App. 2007). Certainly the record is clear that McDaniel was denied due process. CONCLUSION Applicant McDaniel maintains that given a fair reading his habeas corpus & memorandum submission accurately reveals the truth of a miscarriage of justice and wrongful conviction. PRAYER WHEREFORE, PREMISES CONSIDERED, Applicant McDaniel respectfully prays that this Court grants his habeas corpus requested reversal of conviction and remand for new trial proceedings. Date: September 16, 2015 Respectfully submitted, Derrick McDaniel DECLARATION I, Derrick McDaniel, TDCJ No. 1604271, being presently incar- cerated in Texas Department of Criminal Justice--Institutional Division, Estelle Unit, in Walker County, Texas, declare under penalty of perjury that the foregoing is true and correct. Date: September 16, 2015 By: f 4»»>&://?2222,¢4%// f l Derrick McDaniel TDCJ No. 1604271 CERTIFICATE OF SERVICE I, Derrick McDaniely do hereby certify that a true and correct copy of the foregoing General Traverse was mailed with sufficient` postage to the Criminal District Attorney, Bexar County, Paul Elizondo Tower, 101 W. Nueva, 7th.Fl., San Antonio, Texas, 78205. Date: September 16, 2015 BY; /E;,¢»4é/Hé::lb/»$/d Derrick McDaniel TDCJ No. 1604271 Estelle Unit 264 FM 3478 Huntsville, TX 77320