Case Information
*1 Dpuc D. Coase Hecrory Nyan Soar Univ. 6444 Reteane Rd Anclothn 71 Ppess Coart of Cenarile Apples 41,804-02 ASel Acosta, Cice RECEIVED IN COURT OF CRIMINAL APPEALS SUPIN. 1430 St. Rn. 106 SEP 092015 Austan 7178711 AbelAcosta, Cierk RCS EINERTE Doue D. Coase over Mo. 12-05524-017224 Dinn, Me Acosta: Mosc Eno Enclosed Merciannif Ene Mascon Enriled: D) Appiccanti Mozan foe Leane T. Ene Mes Mascon To Mulizfy, ReMonomed and or NsTUDANd Has Recvous FledD Matzan To Sumerent Ciesund of EeRce Mo. 18 AlunE W274 THe Atmiled Memorandum of Lnli: a) "Apeccand Matzan To Rethin, Mulizy And or Memorand Has Orecane Matzan To Sumerent Ciesund of EeRce Mo. 18 W274 Atmiled Memorandum of Can: b) "Apeccand Matzan foe Leane To Lees Has Matzan to Supriment Has Orecane Hnolreran 11.07 Applenim By Adoznd Ciesunds of EeRce 4/8 And 197404 Me ON THe Fokns Meoyond By THe Coart of Cenand Meal c) "Appectand Matzan To Sumerent Has Orecane Hnolreran 1107 Appecepran wort Ciesuns of ERROKs 4/8 And 4/19 on THe Fokns Meoyond By THe Coart of Cename APPEALS: AND
*2 5) "ADESTANIS MORAN is DeSTANTE THE RECIERD IS RE TEANSMATRON AND INCLUATED INTO THE OFFECTIVE HABITAS CORPUS RECIERD FOR THE COURT OF CERAMINUMMIS" PLEASE EAR THERE MOTIONS IN THE REVUE AND ENTERED CASE. I WANN IS THERE YOU IN ADVANCE FOR FOUR TONE AND KING HISTITAM IN THIS NOT URENTS MOTIVE.
*3 WRIT NO. 12-03324-CRP-272-A
EX PARTE
- IN THE CHIMIKAL DISTRICT
- 272nd JUDICIAL DISTRICT
DAVE D. GREEN
- BRARDS COUNTY, TEXAS
APPLICANT'S MOTION FOR LEAVE TO FILE HIS MOTION TO MULLEY, ABANDONED AND OR WETHERM HIS PREVIOUS FILED MOTION TO SUPPLEMENT GROUND OF BRROR NO. 16
ALONG WITH THE ATTACHED MEMORANDUM OF LAW
TO THE MEMORABLE JUDGE OF SAID COURT:
COMES, DAVE DONE GREE, A. P. A. A. A. A. A. A. A. A. A. A. A. A. A. A. A. A. A. A. A. A. A. A. A. A. A. A. A. A. A. A. A. A. A. A. A. A. A. A. A. A. A. A. A. A. A. A. A. A. A. A. A. A. A. A. A. A. A. A. A. A. A. A. A. A. A. A. A. A. A. A. A. A. A. A. A. A. A. A. A. A. A. A. A. A. A. A. A. A. A. A. A. A. A. A. A. A. A. A. A. A
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CERTIFICATE OF ENFUCE
I, hereby certify that a true and correct copy of the motion has been sent to the; District Attorney, Mr. Jarvis Parsons, 300 E. 26th St. Suite 310, Bryen, Texas 77802; the Court of Criminal Appeals, District Clerk; Able Acosta, Supreme Court Bldg. 201 W. 14th St. Pa 106, Austin, Texas 78701-1449, by placing a copy of the same in the U.S. Mail box postage prepaid on this day of SCPTEMGSK 2015.
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WRIT NO. 12-03324-CRP-272-A EX PARTE
- IN THE ORIGINAL DISTRICT
- 272nd JUDICIAL DISTRICT
- BRANON COURTY, TEXAS
APPLICANT'S MOTION TO RETRACI, WILLIPY AND OF ARAHDOND BIS ORIGINAL MOTION TO SUPPLEMENT GROUND OF PRINC 10 WYSE ANTACHED NONGRANDOM OF LAW TO THE FONCAABLE JUDGE OF SAID COURT:
CONER BOM, DAVE BUANE GRIER, ApplIcant herein and in support of this motion will show this honorable court the following:
I.
Justice will be better served by allowing Applicant to retract, nullify and or abandon his original motion to supplement his original handwritten 11.07 application with ground of error eighteen with an additional seven pages of mmerendum of law to be attached to his original 50 page mmerendum of law. If this motion WOULD HAVE BEEN CHANTEO it would have made Applicant's application for 11.07 out of compliance as it would have violated rules by lisiting two grounds of error on a single page. TEX.D.CIV.P. Rule 73.1(d). Also by seeking to add an additional 7 pages to the original 50 page mmerendum of law it would have violated this same rule.
Eiling a motion which seeks to violate the rules without seeking leave of the court to do so can not serve justice because it should be considered an illegal motion. Which the court can not grant. Going so would be an abuse of discretion as it would be an act of misapplying the law to the facts.
WERRENNE, PRESIDES CONSIDERED, Applicant prays that this motion will be granted so that justice can be served by allowing Applicant to retract, nullify and of adimion this improper motion that is pending before this honorable court for consideration, and grant him (n) other or additional relief he is
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Justly entitled to, it is so prayed.
CERTIFICATE OF SERVICE
- hereby certify that a true and correct copy of this notion has been sent to the; District Attorney, Mr, Jarvis Parsons, 300 E. 26th St. Suite 310, Eryam, Texas 77803; the Court of Criminal Appeals; District Clerk; Able Acosta, Supreme Court Bldg, 210 W. 14th St. Rm 106, Austin, Texas 76701-1445, by placing a copy of the same in the U.S. Mail box postage prepaid on this day of yfionbd, 2015.
*7 WHIT EC. 12-03324-CRP-272-A
EX PARIE
- IN THE CRIMINAL DISTRICT
- 272nd JUDICIAL DISTRICT
DAVE D. GREE
- BRASOS COURTY, TEXAS
APPLICANT'S MOTION FOR LEAVE TO FILE SIS MOTION TO SUPPLEMENT SIS CROINAL
SMOWRITTEN 11.07 APPLICATION BY ADDING CROUNDS OF ERROR 818 & 19 THAT
ARE ON THE HOME PROVIDED BY THE COURT OF CRIMINAL APPRESS
TO THE HONORABLE JUDGE OF SAID COURT:
COMES SON, DAVE DUAKE GREE, Applicant herein and in support of this motion will show this Nonorable Court the following:
I.
Applicant seeks leave to file the above entitled motion. Allowing Applicant to do so will better serve justice. IT will also ensure and allow Applicant's Original Application for 11.07 to comply with the Rules of Appellant Procedure thereby providing and allowing the courts to consider 818 & 19 as grounds of error any and all reasons he seeks to have the court reverse his conviction or sentence must specifically be designated as a ground of error. Additionally granting this motion will allow the Applicant to conform his grounds of error to the allegations that are now (an)tained in his "FIFTY PAGE MEMBRANDUM OF LAW." Therefore, the ends of justice will be better served by granting Applicant leave to file the aforementioned motion.
WHEATORE, ... FREMIARD CONSIDERED, Applicant prays that this motion will be granted so that justice can be arrived by Applicant being able to supplement his original handwritten 11.07 application, by adding grounds of error 18 & 19 so that the grounds of error Applicant seeks to have the Court of Criminal Appeals to reverse his conviction and sentence will counter with the aggregations within his original 50 page memorandum of law. By doing so will provide the
*8 Court of Criminal Appeals jurisdiction to reverse his case due to the reasons listed in grounds of error 10 &; 19, additionallt Applicant seeks this Nonorable Court to grant him any other or additional relief he is justly entitled to it is so prayed.
CERTIFICATE OF SERVICE I, hereby certify that a true and correct copy of this motion been sent to the; District Attorney, Mr. Jarvis Parsons, 308 e. 28th St. Suite 310, Bryan, Texas 77803; the Court of Criminal Appeals, District Clerk; able Acosta, Supreme Court Bldg, 201 W. 14th St. Rn 108, Austin, Texas 78701-1445, by placing a copy of the case in the U.S. mail box postage prepaid this day of SEPTEMED, 2015
*9 WRIT NO. 12-03324-CRF-272-A EX PARTE
- IN THE CRIMINAL DISTRICT
- 272nd JUDICIAL DISTRICT DAVR D. GREEP
- BRAZGS COUNTY, TEXAS
APPLICANT'S MOTION TO SUPPLEMENT HIS CRIMINAL HANOMETTEN 11.07 APPLICATION WITH GROUND OF ERRORS $18 & 19 ON THE FORMS PROVIDED BY THE COURT OF CRIMINAL APPEALS
TO THE FONORABLE JUDGE OF SAID COURT: COMES NOW, DAVE DUADE GREER, APplicant herein and in support of this motion will show this Fionorable Court the following:
I.
Applicant in his original "fifty page" Memorandum of law law set forth all the facts regarding how the trial judge Brevis Bryan III abused his discretion before, and during trial. APPLICANT is proceeding pro se and has no formal training in the law and overlooked the fact that before he can seek the court to reverse or even consider this abuse of discretion he must actually allege this abuse of discretion as a ground for relief. THEREFORE, Applicant is simply seeking to add grounds of error 18 & 19 to comply with the Texas Rules of Appellant Procedure. Also to provide the Fionorable Court and the Court of Criminal Appeals authority to consider these allegations of abuse and jurisdiction to actually reverse Applicant's conviction and or sentence because of this abuse. Furthermore this will provide the court the right to fully develop the facts which is the very reason for the Habeas Corpus proceedings to develop facts that are presently outside the record. Thereby ensuring Applicant is provided his American's most treasured right, the constitutional right to a fair and impartial trial which is the pride of American Justice System. This is what sets America a part from other countries "the right to a fair and
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Impartial trail." If this has been denied a new trial will be ordered by the court of apepeals.
WHEREFORE, PREMISES CONSIDERED, Applicant prays that this motion will be granted so that justice can be served by applicant being able to supplement his original handwritten 11.07 application, by adding grounds of error 18 and 19 so that the grounds of errors Applicant seeks to have the Court of Criminal Appeals reverse his conviction and sentence will counterpart with the allegations within he original 50 page memorandum of law. By doing so will provide the Court of Criminal Appeals jurisdiction to so reverse his case due to the reasons listed in grounds of error 18 and 19, additionally applicant seeks this Honorable Court to grant him any other or additional relied his is justly entitled to, it is so prayed.
CERI IFICATE OF SERVICE
I, hereby certify that a true and correct copy of this document has been sent to all parties in this cause that have been served by addressing a copy to: District Attorney, Mr. Jarvis Parsons, 300 E. 26th Street, Suite 310, Bryan, Texas 77803; The Brazos District Clerk, Marc Hamlin, 300 E. 26th St., Suite 1200, Bryan, Texas 77803, the District Clerk of the Court of Criminal Appeals; Abel Acosta, Supreme Court Bldg, 201 W. 14th St. Rm 106, Austin, Texas 78701-1445, by placing a copy of the same in the U.S. Mail postage prepaid on this day of
*11 GROUND: GROUND OF ERROR NO. 18: THE TRIAL JUDGE ABUSED HIS DISCRETION WHICH DENTED APPLICANT A FAIR TRIAL AND EFFECTIVE ASSISTANCE OF COUNSEL AT TRAIL WHICH VIOGATED APPLICANT'S" 8TH AND 14TH AMENDMENT RIGHTS OF THE U.S.CONST.
FACTS SUPPORTING GROUND:
1). THE TRIAL JUDGE HAD AN OFF-THE-RECORD DISCUSSION IN WHICH HE CAREFULLY EXPOUNDED WHY VENIREPERSON ROBERT CESSNA MAY VERY WELL BE BIAS DUE TO HIS CLOSE FRIENDSHIP WITH THE JUDGE. 2). THE JUDGE ALLOWED THE DVD TO BE INTRODUCED AS EVIDENCE IN THE MIDDLE OF TRIAL, WITHOUT A WRITTEN STIPULATION NOR EVEN AN ORAL STIPULATION IN WHICH THE EXACT TERMS WERE DEFINED. 3). THE JUDGE ALLOWED THE STATE TO CONTINUE TO USE FALSE EVIDENCE. THE TRIAL JUDGE ALLOWED THE STATE TO USE FALSE EVIDENCE TO PROVE THE ONLY TWO REMAINING ESSENTIAL ELEMENTS OF THE OFFENSE. 4). THE TRIAL JUDGE FAILED AND REFUSED TO HAVE THE RECORD REFLECT THE STEPS THAT WERE TAKEN TO SECURE APPLICANT'S PRESENCE ONCE THE JURY SENT OUT A NOTE AND BEFORE THE JUDGE RESPONDED TO THE NOTE. 5). THE JUDGE ALLOWED THE STATE TO USE HIGHLY PREJUDICIAL INFLAMMATORY TESTIMONIAL STATEMENTS OF JAILER McKINNY'S VOL. 4 P.9-15. 6). DURING THE SUPPRESSION HEARING THE TRIAL JUDGE SPOTLIGHTED THE FACT THAT NO OFFICER IDENTIFIED APPLICANT AS THE DRIVER OF THE TRUCK. HE THEN EXPRESSED HIS CONCERNS ABOUT THE CREDIBILITY OF THE CI. BUT NEVER ORDERED THE CI TO BE PRODUCED FOR AT LEAST AN IN CAMERA QUESTIONING. 7). THE JUDGE ABUSED HIS DISCRETION BY ALLOWING THE STATE TO PROVE IDENTIFICATION OF APPLICANT AS THE DRIVER OF THE TRUCK BY HEARSAY TESTIMONY OF THE CI WHAT MAKES THIS SUCH A BLATANT EXAMPLE OF ABUSE OF DISCRETION IS THE JUDGE ADMITTED TO KNOWING THE STATE DID SO ON RECORD. VOL. 4 P. 108 L.12-17. 8). THE JUDGE ABUSED HIS DISCRETION BY ALLOWING THE D.A. TO USE THE VOIR DIRE TO HANDPICK AND COMMIT A JURY THAT WOULD CONVICT APPLICANT: BASED UPON THE FACTS OF
*12 THE CASE. 9). THE JUDGE BLATANTLY ABLISED HIS DISCRETION BY HAVING AN OFF-THE-RECORD DISCLISSION WITH TRIAL COUNSEL IN WHICH COUNSEL REVEALED THE EXTENSIVE HIGHLY PROBABILITY THAT WAS REPRESENTATION OF APPLICANT: REPRESENTED A SEVERE CONFLICT OF INTEREST. 10). THE TRIAL JUDGE ABUISED HIS DISCRETION WHEN HE REFUSED AND FAILED TO REVEAL IN ALL-FAIRNESS-THAT THE BRAZOS CO. SHERIFE'S DEPARTMENT DID NOT HAVE AN EVIDENCE CONTROL SYSTEM FROM THE TIME OF APPLICANT'S ARREST UP UNTIL TRIAL. 11). THE JUDGE BLATANTLY ABUSED HIS DISCRETION BY IMPLEMENTING A TOTALLY SECRET MEETING WITH THE DELIBERATING JURORS WITH ONLY STATE PROSECUTOR AND JUDGE PRESENT. PETITIONER AND HIS COUNSEL WERE NOT PRESENT. 12). THE JUDGE ABUSED HIS DISCRETION BY ALLOWING THE U.A. TO MISSTATE THE LAW THICE. THE FIRST THAT APPLICANT'S; FIFTH AMENDMENT RIGHT TO REMAIN SILENT INCLUDES THE RIGHT TO NOT INCRIMINATE OTHERS. SECOND THAT THE JURY COULD BASE THEIR VERDICT UPON PROOF LESS THAT BEYOND A REASONABLE DOUBT.
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GROUND:
GROUND OR ERROR NO. 19: THE TRIAL JUDGE ABUSED HIS DISCRETION WHICH DERIED APPLICANT HIS RIGHT TO A COMPLETE TRIAL RECORD ON APPEAL THEREBY DENYING APPLICANT HIS 6TH AND 14TH AMENDMENT RIGHTS TO EFFECTIVE ASSISTANCE OF COUNSEL
ON APPEAL. FACTS SUPPORTING GROUND:
1). THE TRIAL JUDGE HAD AN OFF-THE-RECORD DISCUSSION IN WHICH HE CAREFULLY EXPOUNDED WHY VERIREPERSON ROBERT CESSHA MAY VERY WELL BE BIAS DUE TO HIS CLOSE FRIENDSHIP WITH THE JUDGE. 2). THE JUDGE ALLOWED THE DVD TO BE INTRODUCED AS EVIDENCE IN THE MIDDLE OF TRIAL, WITHOUT A WRITTEN STIPULATION ROR EVEN AN ORAL STIPULATION IN WHICH THE EXACT TERMS WERE DEFINED. 3). THE TRIAL JUDGE FAILED AND REFOISED TO HAVE THE RECORD REFLECT THE STEPS THAT WERE TAKEN TO SECURE APPLICANT'S PRESENCE ONCE THE JURY SENT OUT A NOTE AND BEFORE THE JUDGE RESPONDED TO THE NOTE. 4). THE JUDGE BLATANTLY ABUSED HIS DISCRETION BY HAVING AN OFF-THE-RECORD DISCUSSION WITH TRIAL COUNSEL IN WHICH COUNSEL REVEALED THE EXTENSIVE HIGHLY PROBABILITY THAT WAS REPRESENTATION OF APPLICANT REPRESENTED A SEVERE CONFLICT OF INTEREST. 5). THE TRIAL JUDGE ABUSED HIS DISCRETION WHEN HE REFUSED AND FAILED TO REVEAL IN ALL FAIRNESS THAT THE BRAZOS CO. SHERIFF'S DEPARTMENT DID NOT HAVE AN EVIDENCE CONTROL SYSTEM FROM THE TIME OF APPLICANT'S ARREST UP UNTIL TRIAL. 6). THE JUDGE BLATANTLY ABUSED HIS DISCRETION BY IMPLEMENTING A TOTALLY SECRET MEETING WITH THE DELIBERATING JURORS WITH ONLY STATE PROSECUTOR AND JUDGE PRESENT. APPLICANT AND HIS COUNSEL WERE ROT PRESENT.
*14 WHIT NO. 12-02324-CBF-272-A EX FAITE
- IN THE CRIMINAL DISTRICT
- 272nd JUDICIAL DISTRICT
- BRADDS COUNTY, TOTAL
ADELICANT'S TOTION TO EXTREASIE THE RECORD TO BE TERMINITTED AND INCLUDED IN TO THE OFFICIAL BREAKS CORPUS RECORD FOR THE COURT OF CRIMINAL APPRAIS TO THE HONOIABLE JUDGE OF EARO COURT: COMES HCSL DAVE DURNE CHEER, Applicant herein and in support of this motion will show this Honorable Court the following:
It's Applicant's obligation to provide a sufficient record that supports his factual allegations with proof by a preponderance of the evidence Ex Forte Chandler, 182 S.W.3d 350, 353 (Tex.Crin.App. 2003). The Court of Criminal Appasle needs to be provided with these designated records so they can verify all the Applicant's factual allegations.
II.
Applicant specifically designates the following to be sent to the Texas Court of Criminal Appasle. These records are set forth in chronological order:
1) The Clerk's Record Vol. 1 of 1
80 pages THE COURT REPORTS RECORDS: 2 Vol. 1 of 6 - Master Index 11 Pages 3) Vol. 2 of 6 - Doctor Call 7.
4) Vol 3 of 6 - Jury Voir Dire Proceeding 175 P. 5) Vol. 4 of 6 - Jury Trial 188 P. 6) Vol. 5 of 6 - Sentencing
61 P.
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7) Vol. 6 of 6 28 P. Applicant's father tried to hand deliver a complete copy of the aforementioned transcripts to the Brazoo County Digt. Clerk's office. They coapl rafused to except then stating: "We have our own copy." Applicant knowing it is his duty to provide the records. Applicant's father sent a copy. by certified mail to Mr. Marc Nardin, Dist. Clerk of Brazoo County, so he would have a certifie copy to be sent to the Court of Criminal Appeals for this Babeas Proceeding.
IIT.
Applicant specifically additionally needs the following designated records to be sent to the Court of Criminal Appalis. 6) Applicant's Criginsl COHPEETELY EANDRRITTEN 11.07 APELLCRITON. 36 P. 9) Applicant's motion to provide notice that the trensoribed trial. records are incomplete 4 P. 10) Applicant's Meaoredum of Law (MOL). 50 P. 11) All the exihibits that are attached to Applicant's HOL. 28 P. 12) Applicant's motion to suplement groend of error 13 V.C.C.P. 11.07 by additional reasons twenty three to twenty five why ocmeel was ineffective.
This is still a ponding motion hecause no rulling has been 13) Applicant's motion to hold proceedings in this case in abeyance until Applicant is provided the missing portions of the mandatory records.b This motion has a one page exhit that is attached to it. 4 P. 14) Applicant's motion for a live evidentiary hearing to develop the factual bases for his claims of ineffectible assistance of counsel and allow counsel to explain his actions also provide the district attomeys and the trial judge a chance to explain their actions.
*16 This mojion was filled on 6-17-15 but was never ruled on. 15) Applicant's response to the court's order and request for a supplement order be issued and supplemental request for live evidentiary hearing because the judge that signed the order for this paper hearing is not the same judge that presided over the trial a paper hearing is therefore, not adequate. Filed on 7-31-15. This is still a pending motion because it has never bean ruled on. 16) Applicant's motion to supplement his application of 11.07 and memorandum of law. Filed on 8-4-15. No ruling. The motion was 2 pages, 2 pages on the forms, 6 pages MCZ 1 page certificate of service total 11 P. 17) Letter to Kyle Hawthorn: NOTICE OF INTENT TO FILE A WRIT OF MANDANIS because not one single motion has been ruled on. This letter was mailed on 8-24-15. 3 P. 18) Applicant's motion for leave of appellate procedure Rule 73.4(b)(2) c) until the Court complies with Rule 47, due to the fact the court cited a case that Applicant has no access to. Filed on 8-28-15. 2 P. 19) Applicant's motion for suspension of Texas Rules of Appellant Procedure Rule 73.4(b) (2) until the court complies with Rule 47, due to the fact the court cited an opinion that applicant does not have access to. 2 P. 20) Applicant's motion to set forth the Brazee County District Clerk(s) actions and inactions that have violated the rules of App. P. that illegally lead to the District Court recommending to diswise Applicant's 11.07 for being out of compliance and otherwise illegally influenced the Honorable Court's recommendations. 5 P. 21) Applicant's motion to reouse the Honorable Travis Bryan III pursuant to TEX.R.CIV.P. Rule 18a from any and all proceedings dealing
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with Applicant';s 11.07 Habeas Corpus. Mailed on 6-20-15 22) Applicant's objections to the new presiding Judge's Order to transmit Habeas Corpus Record which simultaneously circumvents the Honorable Kyle Hevthorn's order Designating Issues. Maile on 8-28-15. 129. 23) Applicant seeks to have a copy all motions that he is filling today 9-1-15, which includes two motions forelieve and the two motions he is seeking leave to file and this motion. To beincluded. Applicant is providing the Court of Criminal Appeals a copy of each of these motions. 241 Acopy of each and every order this court has made on any and all notions Applicant or anyone else has filled in this cause.
WERREPORN, FRIDIERS CONSIDERED, Applicant prays this motion will be granted thereby transmitting each and every requested document listed within this motion without delay to the Court of Criminal Appeals, and grant any other or additional relief he is justlyfentitled to, it is so prayed.
Respectfully submitted,
Dave D. Eirear 01829754 Wayne Scott Unit 6999 Retrieve No Angleton, Texas 77513
CERTIFICATE OF SERVICE
I. HEBEDY CERTIFY THAT &; TRUE AEDCORRECT COPY OF THIS NOTION HAS BEEN GENY TO THE; DISTRICT ATTORNEY, MA. JARVIE FARSONS, 300 E. 26th St. SUITE 310 ERYAN, TEXAS 77603; THE COURT OF CRIMINAL AFPERLS: DISTRICT CLEFK; ABLE ACCEITA SUPREME COURT BLDG. 201 W. 14th RN 106, AUSTIN, TEXAS 78701-1443, BY FIRCTIG A COPY OF THE SAME IN THE U.S. MAIL BOX POSTAGE PREPAID ON THIS DAY OF , 2015.