Civil Action No: 12-02-0185-CVA
Court of Appeals No: 04-14-00611-CT
DAVID ALLAN EDWARDS #907246
ELLIS UNIT, 1697 FM 980
HUNTSVILLE, TEXAS 77343 - _.-■
APPELLANT IN THE FOURTH '": ",-n (-7 COURT OF APPEALS -V- i JUDICIAL DISTRICT OF TEXAS_
COUNTY OF ATASCOSA, DISTRICT SAN ANTONIO, TEXAS -sJ" T3
ATTORNEY OF ATASCOSA . -■ i u\ CD APPELLEE
APPELLANT'S RESPCMJSE TO APPELLEE DIS'IBICT ATTORMEY OF ATASCOSA COUNTYS FILING
OF BRIEF
TO HONORABLE JUDGE OF SAID COURT,
Now comes DAVID ALLAN EDWARDS, who is indigent and acting pro se. Appellant is
incarcerated at the Ellis Unit located in Huntsville, Texas and will explain
as follows.
In Appellee's Introduction he explains as argument that Appellant has failed to
attack the grounds inwhich the judgement was granted and also fails to include
a point of error. Appellant totally disagrees and will show as follows. The st
atute relied on does not apply to this suit or the evidence that is in questi
on EXTRANEOUS OFFENSE REPORT and the NEGLIGENCE of Appellee using said document
in a manner inwhich it was not made to be used dictated by law and statute.The
re is no statute of limitations concerning FRAUDULENT CONCEALMENT and CONTIN
UING HARM under Texas Deceptive Trade Act,Tort Laws. See SHAH V MOSS 67 S.W.3d
at 836/841. Fraudulent Concealment will toll the statute of limitations for
negligence claims. Appellant has provided this argument in his objection at hearing held on May 9, 2014 and in his filings. See [RR,pg25,15-20,pg26,
12-25,pg27,1-18,pg33,17-25],[RR,pg36,9-11]Objection for not being allowed
to call witnesses to testify as to the fraudulent nature of EXTRANEOUS OFFENSE
REPORT. Appellant has in concise language stated his legal right to tolling
in every document he has filed. See Supplement 69,80,566 Objection to Defendant
District Attorneys Motion for Summary Judgement (Apr 16,2014), It is of re
cord in the transcripts of the hearing. Appellant made it clear in his Motion
For New Trial. Appellant has included it in his Brief.MARTIN V CATTERSON 981
S.W.2d at 222,TEXAS DECEPTIVE TRADE ACT,17,39-50,WILLIS 760 S.W.2d at 642, and
STREBER 221 F.3d at 701. Fraudulent Concealment is equitable doctrine that,
when properly envoked, estops defendant from relying on statute of limitations.
CASEY V METHODIST HOSP 907 S.W.2d at 898." Judge has duty to disclose negli
gent act or fact that injury has occurred, and limitations provisions DO
NOT ABOLISH FRAUDULENT CONCEALMENT as equitable estoppel to defense limitations
under that statute.
Hearing Court failed in its duty to be fair and impartial. [RR,pg 27,1, "SO
WHAT!"].It was never a legal question as to Appellant's argument defending the
statute relied on by defendant as it SHOULD HAVE NEVER been allowed to be
filed as defendant/appellee never answered appellant's No-Evidence/No-Answer
Defaults. The hearing court avoided that ruling and acted as if He Judge
Lee ,was one of the defendants. IN RE KLEVEN 100 S.W.3d at 644. Refusal to rule
+ Objection, The trial court failed to rule or refused to allow Appellant's
objections and arguments and failed to investigate appellant's claims. Appel
lant made timely objections at hearing and within his pleadings to preserve
his right of review on law and statue of Fraudulent Concealment. The merits
of appellees arguments land II are not supported by law or fact.
(2) II
Appellee contends in his argument number III that Appellant cannot bring
up later additional issues as error on appeal if they were not presented
at hearing on summary judgement. This is contrary to law and statute and
I will explain as follows.
A Motion For New Trial preserves error when filed timely containing new evi
dence NOT CONSIDERED AT SUMMARY JUDGEMENT HEARING and requesting relitigation
of issues,See BARRY V BARRY 193 S.W.3d at 72,74. It is not the fault of appel
lant hearing court failed to read and rule on Motion For New Trial containing
new evidence,see Original Brief,exhibit (B) attachment (C) Objection to a
lack of full Habeous Hearing/OBJECTION TO EXTRANEOUS OFFENSES,dated 12/15/2003.
By rule and statute these objections and new evidence is preserved for appe
llate review with the filing of a timely MNT. See In re KLEVEN 100 S.W.3d
at 644,CITY OF HOUSTON,589 S.W.2d at 671,678.
As explained in MNT. Appellant of no fault of his,was denied access of this
information,evidence and had no way to bring it into the hearing. Any type
argument concerning same without it at hearing would have been a moot point.
The appellee speaks to the point of knowledge and diligence as to any tolling
of limitations and I will also make of record my diligence and why there was
in appellee opinion a lack there of. Because of the sentence handed down
to me a first time offender, using of the fraudulent extraneous offenses
by jury caused me to be sent to a super max unit. I having never been in
prison before was put with the worst of the worst. I had to defend myself
and landed in Administrative Segregation in early 2000. I did not get out
of Ad/Seg until late 2010,through a special program. I, a year later filed
my law suit for Due process violations. In solitary I was not allowed a
(3) true access to courts. I was delivered ONE case three times a week if I was
lucky and I had to know the name of the case. Any books I requested I had
to know the actual page and article I wanted to review as they would copy that
if and when they had time. I was not allowed any legal books in full to read
to find other cases. They discouraged any legal research through a method
of constant denial. I now have real time ability to read and research five
days a week. It was not by my choice in any delay. I have pursued this matter
with extreme diligence as money and ability has allowed. This is not an excuse
just an explanation and hopefully it will be taken into consideration.
The new evidence will bring to light a new and independent truth so decisive
that it demonstrates justice was not obtained. WAFFLE HOUSE 313 S.W.3d at
813,JACKSON 660 S.W.2d at 809. The new evidence brings to light an OBJECTION
that was made and preserved as error by a Habeous Court. This Objection was
NEVER brought to conclusion or ruled on. This OBJECTION was made in 2003.
» A contemperaneous objection is required to preserve "LONG ERROR" for pur
pose of obtaining collateral relief." Ex parte Crispen 77 S.W.2d at 103.
The introduction of this evidence would have negated the alleged affirmative
defense Appellee relied on and hearing court ruled on. This showed an objec
tion preserving LONG ERROR in 2003.Appellant right to tolling comes in two parts. 1) being the fraudulent concealment doctrine prescribed by law and
statute where the very nature of extraneous offense document is fraudulent,
until its been made true and reflecting the facts that evidence supports. 2 ) The LONG ERROR and the Objection made in 2003 as supported by new evidence
contained in the timely filed Motion For New Trial. Appellant has shown
due diligence in pursuing his due process and civil rights violations by
appellee. Argument number III is not supported by law or fact.
(4) Ill
Appellee states that his service to Appellant was timely as it was filed
on May 2,2014 and that his Response to Appellants No- Evidence/No- Answer
Defaults did not have to be served upon Appellant only filed seven days prior
to hearing.Appellant was sreved on May 9, 2014 at 3pm after hearing.
Appellant objected at hearing and in his Motion For New Trial preserving
his right of review on appeal. Appellee told the hearing judge that he mailed
his response to Appellants last known address Ellis Unit, Huntsville, Texas.
Appellee used deceptive tactics to sway the opinion of hearing Judge Lee.
Appellee was well notified of appellants new address. See exhibit (B) attach
ment (D) letters from Deputy Clerk Estrada #6,7,8,9 ). The law is clear
on this issue. It states " FILED AND SERVED" atleast seven days before hearing.
Me CONNELL V SOUTHSIDE,ISP 858 S.W.2d at 337,343. There are two parts, FILE S
SERVE !, appellee filed on time May 2, 2014 BUT failed to serve appellant
in a timely manner. May 9, 2014 at 3pm after said hearing had concluded.
Second issue appellee failed to discuss is who signed for this service of
Response document ? The law is clear on this issue to. HARMON TRUCK LINES,INC
v STEELE, 836 S.W.2d at 262. " When signature was not plainly the agents,
SERVICE WAS NOT ADEQUATE." PRIMATE CONSTR,INC V SILVER,884 S.W.2d at 151, 152,
Primate over-ruled those cases . and held the record must affirmatively
show that the person served was in fact the registered agent." To compound
matters further appellant was never served and never signed for District
Attorney's response Motion. Appellant is acting pro se and is intitled to
all benefits intitled to a freeworld lawyer. Appellant has NO AGENT or REPRES
ENTATIVE OR HAS APPOINTED ANYONE WITH HIS PERMISSION to sign for any certi
fied legal mail. So who signed for this document acting as an agent for appel-
(5) lant. The law is clear on this issue to.FALSIFYING RETURN: "A person knowingly
or intentionally falsifies a return of service may be prosecuted under Penal
code, chapter 37 for tampering with governmental record. CPRC § 17.030(d).
Not only was appellant given the District Attorney's Response Motion LATE
on May 9, 2014 at 3pm AFTER SAID HEARAING HAD CONCLUDED denying appellant
the ability to prepare a defense but, also someone unbeknown to appellant
falsified the service of Response document by signing for it as an agent
of appellant. Appellee's argument VI cannot be supported by law or fact and
appellant request this court to investigate this matter further as a result
of these irregular actions by appellee and produce the green certified card to
see if appellants signature is present on said item. If not then by law ,said
motion should be over ruled and remanded back.
IV
Appellee argues in VI that appellant is not allowed to present any testimony at
hearing. Appellant disagrees and will explain as follows. In order to show
that a deprivation of witness testimony amounted to a violation of a 6th
amendmant right to compulsory process,appellant must make some plausable
showing of how their testimony would have been both material and favorable
to his defense. USCA Const Amend 6, US V VILLANUEVA 408 F.3d at 193, 126
S.Ct 268,546 US,910,163,L.Ed 2d at 241. 6th Amend, 14 Amend/due process Art l,$10, Texas Const,"confront witness".
The witnesses subpoena'd were names the appellee District Attorney used on
his fraudulent document extraneous offense report stateing that appellant
either assaulted them or aggravated assaulted them. This document was then
given to a jury to assess appellants punishment by. This was illegal and
direct due process and civil rights violations, causing egregious harm to
(6) appellant. These witnesses were in support of appellants No-evidence/No-answer
defaults that should have been the only thing ruled on at hearing concerning
appellee District Attorney as all other documents wre not timely filed or
served upon appellant. These witnesses would provide the evidence needed
by way of testimony that would refute the document entered into evidence
by District Attorney as true and correct. Appellee had failed to answer or provide any evidence in support of the extraneous offense report and this
testimony by the people named on said report was needed. Until this is done
knowledge is not the same as knowledge supported by facts and evidence i.e.
testimony by the very people named on extraneous offense report. It is a right
to be confronted by witness and a due process violation if not allowed.
(Tex App-San Antonio 2000) " Defendants right to subpoena witness in his
favor arise out of the United States Const 6th Amend right of compulsory
process and the State Const provision that criminal, defendants have a right
to compulsory process for obtaining witnesses, and the 6th Amend right to
compulsory process in plain terms the right to present a defense, and the
right to present the defendants version of the facts as well as the prosecu
tions to the jury so it may decide where the truth lies."USCA Const Amend 6 Vernon's Ann, Texas Const, Art 1,510 SUAREZ V STATE 31 S.W.3d at 323.
"Right to confrontation by cross-examination is fundammental constitutional right." THOMAS V STATE 897 S.W.2d at 539, Crim Law 662.7
TRE 806, When hearsay statement, or a statement defined in Rule 801(e)(2)(c),
(D} or (E) or in civil cases a statement defined in Rule 801 (e)(3) has been admitted into evidence, THE CREDIBILITY OF THE DECLARANT MAY BE ATTACKED.
IF THE PARTY AGAINST WHOM A HEARSAY STATEMENT HAS BEEN ADMITTED CALLS THE
DECLARANT AS A WITNESS, THE PARTY IS ENTITLED TO EXAMINE THE DECLARANT ON
(7) TOE STATEMENT AS IF UNDER CROSS-EXAMINATION." VICTOR M. SOLIS UNDERGROUND
UTIL & PAVING Co. V CITY OF LAREDO.751 S.W.2d at 532,537 .TANGIBLE ITEM USED FOR A SPECIFIC PURPOSE,?101.021(2)
Proof of Authenticity,Document Extraneous Offense Report, " Authentication
is established by evidence that the matter in question is what its proponent claims it to be." TRE 901(b)U); In re G.F.O. 874 S.W.2d at 731," A docu ment is considered authentic if (2) a sponsoring witness vouches for the documents authenticity ."
Appellee has repeatedly avoided any attempt to present any evidence in
support of extraneous offense report. This is why appellant issued subpoenas
to fact witnesses to either authenticate or refute the validity of extran eous offense report. The denial of testimony by hearing judge violated
appellant's due process rights established by law and statute. The appellee
District Attorney DID NOT OBJECT to said testimony and would be to late to do so now.
Appellee's document extraneous offense report is mere inference as it is NOT supported by any facts or law. It is NOT of any public record or crime supported by record or any final conviction as it reports items 3 thru
20. Pursuant to Rule 404,609. "Facts from which an inference may properly be drawn must be established by DIRECT EVIDENCE not by other inferences." MERCK & Co.,Inc V ERNST,296 S.W.3d at 81.
It cannot be said that appellant failed to pursue his claim as he had knowl
edge of false extraneous offenses as it takes more than knowledge to confirm that argument. It takes evidence through testimony and appellant was denied
(8) this ability by hearing judge.
THAYER PRESUMPTION
A presumption that requires the party against whom the presumption operates
to come forward with evidence to rebut the presumption, but that does not
shift the burden of proof to the party. Fed.R. Evid 301
Appellant has repeatedly requested evidence in support of extraneous offense
report from appellee District Attorney. Appellee has failed to provide
anything in support of this document. It is my request that this Court
make ruling as to the credibility and reliability of this document. That
a declaration be made as to the findings of this document and that injunc-
tive relief in the form of a policy that a document of fraudulent nature
never be introduced into an Atascosa County proceeding by the District
Attorney of Atascosa County, Texas. This will satisfy my Due Process Com
plaint. The testimony denied appellant was crucial to both appellants abil-
ilty to confront witness and to satisfy the requirements of evidence in
either support of or denial of the document extraneous offense reports
reliability as being true and correct. Appellee's argument VI on testimony
has no merit in law or fact.
CONCLUSION
What is knowledge with out evidence or being denied the ability to develope
evidence in support of knowledge . This in law is considered a Due process
violation directly affecting the operation of law and denying appellant
his rights guaranteed by the 6th and 14th Amendments. Appellee trys to divert
this courts attention away from the true nature of this complaint. Fraudu-
(9) lent Concealment of the true facts supported by evidence is being with held fr
om Appellant concerning the extraneous offense report. Appellee is stating
Appellant is trying to relitigate his criminal proceedings in this complaint.
Nothing could be further from the truth as this Court cannot free Appellant
or lesson Appellant's time through any civil litigations. No, Appellant is
pursuing Due process and Civil Rights violations done him during his sentenc
ing phase of his trial, caring nothing about a conviction pertaining to
same. There are laws and statutes that dictate the order of things in a court
proceeding and Defendant District Attorney, and his i.e.,Prosecution Team
violated these rules and statutes DEPRIVING Appellant of his Due Process
and Civil Rights guaranteed by the 6th and 14th Amendments. These violations ,
happened in a criminal proceeding but, the correct venue for addressing such
matters are in a civil court as these are civil violations.
FORD MOTOR COMPANY V RIDGWAY,135 S.W.3d at 598,601, Evidence that does no more
than create mere suspician of existence of a fact,in legal effect,NO-EVIDENCE
"The document labeled extraneous offense report 3-20 are not supported by any
existing evidence or fact. GUERRA V JOHNSON 90 F.3d at 1075(5th) False eviden
ce, testimony, use of perjured document not corrected,6th,14th USCA violation. A
prosecutors DUTY to correct known false evidence,See MOONEY V HOLOHAN 294,US
103,55 S.Ct,340,79 L.Ed 791,Texas Disciplinary Rules of Professional Conduct,
3.04,3.09 Art 2.01 V.A.C.C.P.Criminal Law 706(2),1171.8(1)
ALLEYNE V UNITED STATES,133 S.Ct.2151(2013), " The essential point that the
aggravating fact (EXTRANEOUS OFFENSE REPORT) produced a HIGHER RANGE, It
must, therefore, be submitted to the jury and found beyond a reasonable doubt."
When an ALLEYNE violation occurred, the defendant's sentence was UNCONSTITU
TIONALLY ENHANCED by the number of years that the sentence exceeded 5 years.
(10) Appellant was sentenced to 40 years with a minimum of 5yrs,harm exist by the
submission of this fraudulent document to appellant's jury.State Law must meet
or exceed Federal Law,HEITMAN,815 S.W.2d at 681,18 § 4241-4247. "Texas Law"
CPRC § 101.021(2)," The use of tangible personal property occurs when the
property is brought into action or is employed for a given purpose." The
extraneous offense report was used by Appellee District Attorney to enhance the
sentence appellants jury assigned as punishment in violation of clearly estab
lished State and Federal laws. " Liability has been imposed when the injuries
are alleged to have proximately resulted from the negligent use of property
in some respect deficient or in appropriate for the purpose for which it
was used.HOPKINS 707 S.W.2d at 325,327. Falsification of evidence Obstructing
Justice ^9,15,18-20 US V CIHAK 137 F.3d at 252. ,VASOUEZ V STATE 67 S.W.3d
at 229, " Even when the prosecutor does not instigate the perjury, he is
obligated to correct any perjured testimony given by one of his witnesses."
GRUNSFIELD V STATE 843 S.W.2d at 521, Gov't Code § 311.023(3) Venn,Tx CCP
art 37.07,$3(a) "Evidence of extraneous offenses "UNADJUDICATED" WERE NOT
admissible during punishment phase at trial for noncapital offenses. Rule81(b)
(2).
CALDWELL V BELL,288 F.3d at 838, "Instructions that tells jury to presume
any element of a crime WITHOUT evidence violates the 14th Amendmant DUE PROCESS
GUARANTEES. See exhibit (B) Motion For New trial attachment (Charge to
COURT). SKINNER V SWITZER 131 S.Ct at 1289(2011) "When a judgement in favor of
the plaintiff would necessarily imply the invalidity of his conviction or
sentenc,42 U.S.C.S.S 1983, is not a available remedy but, if the plaintiff's
action, even if successful, will not demonstrate the invalidity of his convic
tion the § 1983 action should be allowed to proceed. IT SUFFICES TO POINT
OUT THAT SWITZER HAS FOUND NO CASE,NOR HAS THE DESSENT, IN WHICH THE COURT
(11) HAS RECOGNIZED HABEOUS AS THE SOLE REMEDY, OR EVEN AN AVAILABLE ONE, WHERE
THE RELIEF SOUGHT WOULD "NEITHER TERMINATE] CUSTODY/ACCELERATE THE FUTURE
DATE OF RELEASE FROM CUSTODY, NOR REDUCfE] THE LEVEL OF CUSTODY1 DQTSON 544
US at 86,125 S.Ct at 1242, 161 L.Ed 2d at 253
This is a Due Process Complaint addressing the violations done to Appellant
during his sentencing phase of his criminal trial. These Due Process and
Civil Rights Violations are being addressed in a Civil Court of law as dictated
by law and statute. Appellant has only asked for declaratory and Injunctive
relief as stated in the pleadings and prayers. Not any reversal of any crim
inal conviction. Appellant has stated it clearly and concisely in law and
statute. Fraudulent Concealment Doctrine under Texas Tort Laws toll statute
until said time a declaration is made that states the credibility and reli
ability as supported by evidence concerning the document extraneous offense
report and its true nature. Appellee's arguments and conclusion hold no merit
in law or fact. Appellant urges this Honorable Court to investigate this
document in question and to report the facts satisfying the declaration and
injunctive relief sought by appellant.CHAPMAN V MARATHON MFG Co. 590 S.W.2d,549.
PRAYER
WHEREFORE premisses considered Appellant prays this Honorable Court Reverse
and REMAND this action for a full and fair review investigating the document
EXTRANEOUS OFFENSE REPORT,GRANTING all the relief the Appellant is intitled
to, Making ORDER for bench warrant so Appellant can attend.
Respectfully submitted
Q David Allan Edwards #907246 Appellant/pro se Ellis Unit, 1697 FM 980 Huntsville, Texas 77343 (12) DECLARATION
1 DAVID ALLAN EDWARDS, declare under penalty of perjury pursuant to § 132.001
CPRC, that I have read and subscribe to the above and I swear that the infor
mation contained therein is true and correct to the best of my knowledge.
Executed on 1 -fT^lS" at the Ellis Unit, Huntsville, Texas .
CERTIFICATE OF SERVICE
1 DAVID ALLAN EDWARDS, hereby certify under penalty of perjury that a true
and correct copy of the Response to Appellee's Brief, has been provided to
the Deputy Clerk of The Fourth Court of Appeals, with request that said
Clerk please provide all interested parties a copy. Document is being sent
via USPS this ptS"^\S day of January 2015,via postage paid envelope.
Ol. David Allan Edwards H 907246 Appellant/ pro se Ellis Unit, 1697 FM 980 Huntsville, Texas 77343
(13) January 5, 2015
Fourth Court of Appeals 1 -1 • —i
Deputy Clerk, Luz Estrada #3219
'■ ~ 1 E: Filing Response Brief 04-14-00611-CV en
District Attorney,Atascosa County ■ r^
CD Dear Deputy Clerk, Estrada
Please find enclosed my Response Brief , please file. Thank you for your
help in this matter and please provide a copy for all interested parties.
Respectfully yours
-LWiA Q. David A. Edwards 0 907246
Ellis Unit, 1697 FM 980 Huntsville, Texas 773^3 Appellant/pro se