David De Leon v. Cherie D. De Leon
Opinion
ACCEPTED
03-15-00027-CV
6313485
THIRD COURT OF APPEALS
AUSTIN, TEXAS
7/31/2015 2:54:34 PM
JEFFREY D. KYLE
CLERK
NOTICE: THIS DOCUMENT CONTAINS SENSITIVE DATA
NO. 03-15-00027-CV
FILED IN
DAVID DE LEON § IN THE 3RD COURT 3rd COURT OF APPEALS
AUSTIN, TEXAS
§
v. § OFAPPEALS 7/31/2015 2:54:34 PM JEFFREY D. KYLE
§ Clerk CHERIE D. DELEON § AUSTIN, TEXAS
MOTION TO RECUSE THIS COURT This Motion to Recuse this Court is brought by Appellee, who shows in support:
1. The impartiality of this Court, Chief Justice Rose, Justice Puryear, Justice Pemberton, Justice Goodwin, Justice Field, and Justice Bourland might reasonably be questioned in that it allowed filing in this case of an Appellant's brief that fails to meet any basic briefing requirements and to which Appellee is unable to reply. A copy is attached hereto and incorporated herein by reference as if set forth in full. This Court showed a clear and unequivocable bias for Appellant by accepting for filing a brief that meets none of the basic requirements as follows:
38.1 Appellant's Brief. The appellant's brief must, under appropriate headings and in the order here indicated, contain the following:
(a) Identity ofparties and counsel. The brief must give a complete list of all parties to the trial court's judgment or order appealed from, and the names and addresses of all trial and appellate counsel.
(b) Table of contents . The brief must have a table of contents with references to the pages of the brief. The table of contents must indicate the subject matter of each issue or point, or group of issues or points.
(c) Index of authorities . The brief must have an index of authorities arranged alphabetically and indicating the pages of the brief where the authorities are cited.
(d) Statement of the case. The brief must state concisely the nature of the case (e.g., whether it is a suit for damages, on a note, or involving a murder prosecution), the course of proceedings, and the trial court's disposition of the case. The statement should be supported by record references, should seldom exceed one-half page, and should not discuss the facts.
(e) Issues presented. The brief must state concisely all issues or points presented for review. The statement of an issue or point will be treated as covering every subsidiary question that is fairly included.
(t) Statement offacts . The brief must state concisely and without argument the facts pertinent to the issues or points presented. In a civil case, the court will accept as true the facts stated unless another party contradicts them. The statement must be supported by record references.
(g) Summary of the argument. The brief must contain a succinct, clear, and accurate statement of the arguments made in the body of the brief. This summary must not merely repeat the issues or points presented for review.
(h) Argument . The brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.
(i) Prayer. The brief must contain a short conclusion that clearly states the nature ofthe relief sought.
(j) Appendix in civil cases.
(1) Necessary contents. Unless voluminous or impracticable, the appendix must contain a copy of:
(A) the trial court's judgment or other appealable order from which relief is sought;
(B) the jury charge and verdict, if any, or the trial court's findings of fact and conclusions oflaw, if any; and
(C) the text of any rule, regulation, ordinance, statute, constitutional provision, or other law (excluding case law) on which the argument is based, and the text of any contract or other document that is central to the argument.
(2) Optional contents. The appendix may contain any other item pertinent to the issues or points presented for review, including copies or excerpts of relevant court opinions, laws, documents on which the suit was based, pleadings, excerpts from the reporter's record, and similar material. Items should not be included in the appendix to attempt to avoid the page limits for the brief.
2. Appellee filed a Motion to Strike Appellant's Brief and/or Dismiss
Appeal, which this Court apparently denied by July 20, 2015, notice. Attorney never received anything in writing from this Court. This Court rejected for filing
Appellee's Motion three times, once for failing to contain a Certificate of Conference (though it clearly would be irrelevant in light of the relief being sought while the Court completely disregarded the Appellant's briefing requirements in his brief), and then the Court rejected the motion for failing to include a filing fee although Appellee had in the trial court filed a pauper's oath on which Attorney for Appellee had been representing her. When Appellee counsel called Mr. Kyle, the clerk, he said that Appellee's affidavit of indigency in the trial court was no good in the appellate court so counsel filed a new affidavit of indigency in the appellate court. Mr. Kyle on looking at the trial court record clearly was unaware that Appellee was being represented on a pauper's oath, but insisted that his court needed a new affidavit.
3. This Court cannot be fair or impartial concemmg CHERIE D.
DELEON, a party to this case, and the subject matter of this case, in that this Court permitted filing of a pro se brief that fails to meet briefing requirements of Texas Rules of Appellate Procedure. This Court has shown itself intending to rule for Appellant by filing a brief to which no member of the Bar could reply in any meaningful way.
3. This Court should recuse itself from any further consideration of this case.
4. Judge David Puryear is believed to be specifically prejudiced against
Attorney for Appellee in that Attorney wrote a critical letter about this court to that judge's last re-election campaign, and he is believed to be unable to be fair in any case involving Appellee counsel, having been involved in 3 cases since that letter, two of which he wrote, one regarding child custody jurisdiction where a child had never resided in Texas and which opinion was contrary to law in the UCCJEA and Texas Family Code Chapter 152 and another which found a "Rule 11" Agreement was a final decree of divorce. The undersigned attorney has criticized this court for its lengthy delays in rendering decisions and its decisions being contrary to law, and believes this Court is unable to be fair or impartial. Since this Court accepted for filing a brief that meets no requirements, this Court is predisposed on how it will decide this case, and this is unfair to Appellee.
5. This Court took an excessive time to deal with the motion before the Court and has taken excessive time in this and other appeals which has resulted in prejudice to many litigants with business before this Court.
CHERIE D. DELEON prays that the Court grant the Motion to Recuse Court.
Respectfully submitted,
THOMAS J. BAKER, Attorney at Law 101 West FM 2410, Suite F Harker Heights, Texas 76548 254-634-8600
254-554-6686 (telefax)
By:
Thomas J. Baker
State Bar No. 01595700
thomasjbaker_ atty@hotmail.com Attorney for CHERIE D. DELEON
Verification
The undersigned states under oath: "I am Movant in the foregoing Motion to Recuse Court. I have personal knowledge of the allegations and facts stated in it, and they are true and correct."
Affiant
JESSICA BRIDGE
My Commission Expires
April15, 2018
Verification
The undersigned states under oath: "I am Attorney for Movant in the J1 /.y foregoing Motion to Recuse c .0<-ll':t-
.J.w.Q~ I have personal knowledge of the allegations
and facts stated in it, and they are true and correct."
J~iiJ~
Affiant f
Certificate of Service
I certify that a true copy of the above was served on each attorney of record or party in accordance with rule 18a(d) of the Texas Rules of Civil Procedure on July Jl_, 2015.
Thomas J. Baker In
Attorney for CHERI D. DELEON
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