Greer, David AKA David Duane Greer

Opinion

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WRIT NO. l?,-03324-Cc!F-272-A

EX PASTE § IN THE COURT OF CRIMIDinL DISTRICT

§ 272nd JUDICIAL DISTRICT

DAVE D. CREER § PRAZQS COUNTY, TEXAS

APPLICANT'S MOTION TO RECUSE AND DISQUALIFY. THE HONORABLE JUDGE TRAVIS

E8YAN III FROM ANY AND ALL PROCEEDINGS DEALING WITH APELICASSTT'S 11.07 HABEAS CORPUS

TO THE HONORABLE^JUDGE OF SAID COURT:

COMES NOW, DAVE DUANE GREER, Applicant.herein and in support of this

motion will show this Honorable Court the f£ttlowing:

I.

Right before the jury was sworn in, during a hearing in open court, concerning the fact that trial judge TravisBryan III, had previously represented applicant in a criminal case as a defense attorney, His representation (was unsuccessful) as hisrepresantaticn resulted in Applicant being convicted. TravisBryan III stated for the record "and if either side wants rns off the case, I'll willingly recuse itsyself..." Vol. 4 P.8L.12-13.

Applicant was of the belief that when he filed his original application of habeas corpus 11.07 which cited numerous allegations of Unconstitutional violations and iirproprieties of TravisSryan III himself during and before trial even began concerning his actions andinactions by personally violating iriandatory statutes, as well as known rules of evidence and procedures. Applicant also alleged in grounds of errors 18-19 in his habeas application that judge Bryan allowed the prosuctor in open court on the record to ccsrardt a bfcatant criminal offense (Tex.P. Cede 2.0.1) (See Vol 4 Page 165 L. 14-15 "It does not.

have to be beyond a reasonable doubt...") which unambiguously denied Applicant

a fair trial. Additionally Applicant alleged with a supporting affidavit that judge Bryan had extensive secret ex parte oonamanica.t.ion with the deliberating jury. This is .in effect asking the j#dge to openly and inpartially allow

Applicant to further develop the record to provide additional evidence that

he abused his discretion, violated numerous rules, requlations and statutorally mandated procedures. To further devel^ethe record the judge himself would be forced to voluntarily testify against hihiself and provide additional svsorn evidence that he.both violated all the aforementioned rights of Applicant but why he allowed the prosecutor to tell the jury during closing areguroents that the proof did not have to be beyond a reasonable doubt. Then recarananding that

his actions and inactions denied, applicant a fw.x trial'. Essentially Judge Bryan is being placed in a position to set himself up to personally develop

the record to be used to verify his acts of judicial misconduct , possible

revomal from the bench, or the public beconming aware of these acts of mis

conduct lossing reelection due to lossing public trust. To say as a .drastic

understatement Judge Bryan 's impartiality is highly questioable.. 8'iso it's now beyond controversy that jud£>e. Bryan has a crucial persional interest in

the outcome of the subject matter of this proceeding. As.such he has a

personal biasness and prejudice in influencing the put come of these proceeding.

See In re Chaves, 130 S.W.3d. .107,112 (Tex.App.-E3. Paso 2003):

"Disqualification of a judge can not be waived, even by consent of the parties, and the issue nay be '.. >.V.'ij' raisa3 at any time. Games ]v. State, 737 S.W.2d 315 (Tex.Crim.App. 1907[ 737 S.W.2d.at 318. FOOTNOTE 2: Rule 18b(2) providesthe verious grounds for recusal, which include requiring a judge to recuse himself in any proceeding in which, (a) his impartiality might reasonably be questioned, and (b) he has a personal bias or prejudice concerning the subject matter or a party, or personal knowlwdge of disputed evidentiary facts concerning the proceeding.

The courts have further held that even Wten a judge's impartiality might

reasonably be questioned he should recuse himself. Gulf Maritime Warehouse

Co. v. Towers, 858 S.W.2d 556,558 (Te^. App.-Beaur.xjnt 1993):

"Regarding disqualification of a judge, we have two bases of consideration. First, is TEX.CONST.art. V. §11 which states as follows: Sec. 11 No judge shall sit in any case wherein hemay be interested;..." At 559 "Having a pecuniary or financial interesf-ls certainly of foremost consideration. There are other concerns however which have been addressed by Justice Spears concerning comments in Sun Exploration and. production Co. v. JacTtson, 783 5.W. 2d 202, 206 (Tex.1989); Public policy demands that the judge who Sits in a case act with absolute impartiality. Pendergrass v. Beale, 59 Tex.446,447 .0,883). Beyond the demand that a judge be impartial, however, i is the requriement that a judge appear to be impartial so that no doubts or suspicions exist as to the fairness or integrity of the court.. Aetna Life Ins. Co. v. .Lavore, 475 U.S. 813, 106 S.Ct. 1580, 89 L.Ed.2d 823 (19^6); Marshall v. Jerrico, Inc., 446 U.S. 230, 100 S.Ct. 1610, 64 L.Ed. 2d. 182 (1980). The judiciary must strive not only to give all parties a fair trial but also to maintain a high level of public trust and confidence. Indemnity Ins. Co. v. wcGee, 163 Tex. 412, 356 S.W.2d 666, 668 (Tex. 1962). The legitimacy of the judicial process is based upon the public's respect and its confidence that the system settles controversies inpartially and fairly. Judicial decisions rendered under circumstances that suggest bias, prejuduce, or favoritism undremine the integity of the court.'s, breed skepticism and mistrust, and thwart the very priciples on which the judicial system isbased. The judiciary must be ejetremely diligent in advoiding any appearance of impropriety and must hold itself to ejtacting standards lest it lose its legitimacy and suffer a loss of public confidence. Although the court ..."

TEX. R.CIV.PROC. RULE 18b Grounds for Recusal and Disqulification of judges:

"(a) Groundsfor Disqualifications. A. judge must disqualify in any proceeding in. which; (2) the judge knows that, .individually or as a fiduciary, the judge has an interest in the subject matter in controversy; or (3)(b) Groundsfor recusal. A judge must recuse in which: (1) the judge's impartiality might resonably be questioned; (2) the judge has a personal bias or prejudiceconcerning the subject matter or party; (3)7-," the judge has personal knowledgeof disputed evidentiary facts concerning the proceeding:.

The judge can no more be expected to admit his own incopetency than a a trial attorney can be expected to file a direct appeal and admitt his own incompetecy. This is the very reason that after a trial a new and. different attorney is appointed to to prepare and file the direct .appeal. Alsacn v. Garrison.. 720 F.2d 812,816 (4th Cir.1983)("The content of an appeal is heavily controlled

foy counsel, and wher$ as here, the defendant's trial lawyer also prosected the appeal, it isobviousthat ineffective assist;ance of counsel its not likely to be raised at trial.or to appear among the assignments of constitutional error.").

II.

In support of Applicant'sbalief Judge Bryan willingness to recuse himself

•when placedin a questionable situation, is the VERY FIRST RULING OF THE COURT

which wasissued on July 6, 2015 Court Order that Designated"Issues of FactTo Be

Resolved." That was signed by the Honorable Kyle Hawthorn As "Presiding Judge"

which is another District Judge. Applicant naturally believed the judge Bryan

had. voluntarily recused himself because it was obviousljfrom a quick reading of applicant's 11.07 that judge Bryan could not impartially decide whether his

own conduct violated Applicant's right to a fair trial.

III.

Judge Haw-thorn ordered Both Trial Counsel and appellant Counsel.to submit affidavits by no later than Oct. 6, 2015. He also ordered the District Clerk' of Brazos County to withhold preparing and transmitting the record to the Court Criminal Appeals until further order of this court.

Just image Applicant's shock and awe, when over a month prior to the aforementioned attorneys' affidavitsbeing received, heinstead received on August 24, 2015 an "Order To Transmit Habeas Corpus ReoordB,.:» signed toy gravis Bryan II?. This order wasdated Augxtst 17, 2015 which included ama^ly that n^ovu existec

there now miraculously nH-ted no no factual

t<s.v«-*^u- issues requiring an evidentiary

hearing andhaveheardthe applicant and considered, this court magically

hereby orders the District Clerk of Brazos County to prepare and transmit the

record herein to the Court of Criminal Appeals with the recommendations that the

application be DISMISSED-," Signed by Travis Bryan III JUDGE PRESIDING.:'; For suRE this new order served the best interest of Judge Bryan.

IV.

For sure we know, action speaks loud^ than words. Judge Bryan appered out

no where to totally clam shut any chance that Applicant might have had to bearA^t^ his due process right to develop the factual bases of the facts that are

presently outside the record.

V.

Judge Bryan's self serving order is extremely inadequate to serVethe

intended purpose in a habeas proceedings, as decided by the U.S. Supreme Court,

the Honorable Fifth circuit and Texas highest Court "Court of Criminal Appeals."

Each mandates that when an applicant files his collateral attack on his criminal

conviction, the initial task i3 to "determine whether [his] allegations, if

proven would establish the right to habeas relief." If so he is entitled to an

evidentiary hearing to further develop these factual basis with facts outside

the record. Ex Parte Beyna, 701 S.W.2d 921 (Tex.Crim.App. 1986); Streetman v.

Lynaugh, 812 F.2d 950,956 (5th Cir.1987); Townsend v. Sain, 83 S.ct. 745, 756

(1963). Judge Bryan's highly controvresial and obvious self serving order*.does

simply question his impartially but SCREAIELOUDLY "I'll do everthing in my

power to both cover up my illegal actions and prevent anyone else from

discovering them and developing a record providing them.

I, DAVE D. GREER TDCJ-TD #1829754, incarated in the Texas Deratment of

C riminal Justice Institutional Division at the Wayne Scott Unit, in Bf^aoria

County, Texas declar under the penalty '.) of perjury that the facts within this

motion are true and correct.

My birthday is \7^-iM> k& EXECUTED on this o day of October, 2015..

UNDER both Federal Law 28 U.S.C. §1746 and State. Law V.A.C.CIV. PRCC. &

Rem. Code §132.001-132.003.

WHEREFORE, PREMISES CONSIDERED, Applicant prays this motion in all

things be granted, that this motion be assigned to the presiding administrative

judge, then an order be issued that Judge Eryan be disqualified and ordered recused, also that any and all orders signed or issued by him are hereby null

and. void. Then grant Applicant any other or addittional relief he is justly

entitled to, it is so prayed.

Respectfully submitted,

Dave D. Greer #1829754 Wayne Scott Unit 6999 Retrieve Rd. Angleton, Texas 77515

CERTIFICATE OP SERVICE

I hereby certify that a true and correct copy of this motion has been

sent to all parties in this cause by addressing a copy to: District Attorney,

r-V. Jarvis Parsons, 300(. E. 26th Street, Suite 310, Bryan, Texas 77203; The

Brazos Co. .District Clerk, E%arc Famlin, 300 E. 25th St., Suite 1200, £ryan,

Texas 77G03; The Second Adciinistrative Judicial District Presiding Judge Olen

Underwood, 301 I>T. Thompson St. Ste. 102, Conroe, Texas 77301; The Honorable

Judge Travis Bryan III, 300 E. 26th St. Ste. 204, Bryan, Texas 77803; The

District Clerk of the Court of the Criminal Appeals> Abel Acosta, Supreme Court Bldg, 201 W.Mth St. RiTi 103, Austin, Texas 78"701-14^5, by placing

a cotv of the same in the U.S. Mail postage prepaid on this 3rd. day of

October, 2015.

Dave D. Greer'