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TEXAS coURT or cRIMINAL APPEALS DEC.;@,zola cLERK oF THE coURT “
MR.ABEL ACOSTA
Po Box 12308
AUSTIN,T; 78711
RE: Courtesy Copy of Applicant's objections to the State'S Answer that he did not receive prior to the previous filing. WR-82,493-01. EX PARTE JOSEPH DALE MOSS.
Dear Mr. Acosta,
Please find enclosed Applicant'$ Objections tovthe State'S Answer in the above numbered cause.
This courtesy copy is being provided for the purpose of alerting the Court of Criminal Appeals that the above documents have been filed in the Randall.County District Clerk?s office,.~ The Clerk will be forwarding the same l am sure shortly.
lf there are any questions or concerns, please do not hesitate to contact me. Tank you for your kind assistance in this matter.
. wilbur
Sincerel y ` 59 ePh Dale Moss RECENE|\N §§ §5;§ 369 N CO!JRTOFCR!M|NALAPPEALS Park, TX 78367 _]AN 111 2.15 Allred Unit
Abe| Acosta, Clerk
CAUSE NO.W-219él=C-1 C.C.A.WRIT NO.WR,493-Ol
Ex PARTE § » IN THE DIsTRIcT couRT vs. 1 ' § RANDALL coUNTY, TEXAS JosEPH DALE Moss § 2~513t JUDICIAL DISTRICT
APPLICANT'S RESPONSE AND OBJECTIONS TO THE STATE'S ANSWER FOR WRIT OF HABEAS CORPUS
NOW COMES JOSEPH DALE MOSS,HEREAFTER APPLICANT, in the above numbered and styled cause and respectfully Responds andiObjects to the State's Answer in these habeas proceedings. Applicant would show the Honorable Court the following in support of the same:
l. ` TIMELINESS
Applicant objected to the Trial Court's Art.ll.O7 Sec.3(c) den- ial as soon as he received from the trial Court Clerk notice that the writ application had been forwarded to the Court of Criminal Appeals on November 26,2014. Those objections were made without ever receiv- ing the state's Answer or Trial Court findings. Applicant prepared and mailed those objections out on December 4,2014 dated December 5,2014 because the mail pickup would not be until the morning of the 5thf Applicant received the State's Answer on the afternoon of the 4th. The State's Answer was file stamped on November 26,2014, the same day that the writ application was transferred to the C.C.A. Applicantdid complain and request the Clerk properly forward the filings according to the rule at that time} but has yet to hear from the Clerk or rec- ive anything other than the letter noticing the C.C.A. was sent the writ applicatiomm
The Memorandum in Support of the writ application at p.ii in Paragraphth, as well as the Motion to Recuse, as evidenced in the ' letter to the Clerk upon filing of the writ and motion to recuse or Att.-A to the Objections to the Trial Court's Sec.3(cj general denial, shows that the motion to recuse was timely filed and properly requ-
ested to be presented to the judge within three days as well. The contested Trial Court Judge was legally barred from preforming any duties,... 1 .
other than ministerial, while under the legally filed motion to re=~ cuse. The State make no mention of the motion to recuse in their re- sponse. The State was also properly notified of the Motion toirecuse. The State's requesting and presenting of two affidavits from the con- tested attorneys does not constitute proper adjudication of the merit of Applicant's claims, by the Trial Court, according to Art.ll.O7 Sec.3(c§. However, what the State's actions do indicate is that there are previously unresolved facts material to Applicant's confinement that require further record developement. Applicant objectsato the State's interpretation of the evidence in the record being sufficient for the Court to rule on the relief sought.(P;13) of their Answer. TheeCourt of Appeals and the State on direct Appeal both were in agr- eement that this record needed to be developed in order to adjudicate the merit of Applicant's claim of ineffective assistance of counsel there.
Applicant also objects to the State's entering of Attorney Ray's affidavit that is perjinious on several points provable by the rec- ord, that Applicant will discuss below, as well as claiming to have contacted Applicant's Father and making absolutely false statements that Attorney Ray claims my Father made....which my Father denies and will testify to the same at an evidentiary hearing.
Because the State relies solely on the attorney's affidavit; and his veracity, Applicant will direct his objections toward the affidavits specifically and in the order they appear there. lt is an important consideration to respectfully remind the reader that Applicant's claims in this writ Application rise to the level of an actual conflict of interest concerning trial attorney Ray.
` ` II. LENDON RAY'S AFFIDAVIT:GROUND ONE
(x-B) and AturneyRay's statements prove Applicant tried to have Ray contact Rick and Shayna Armijo, the Complainant's ex-hus band and daughter, and subpoena them for trial. The affidavit shows he never did. Mr.Ray, to cover for this failure, makes up a compl- etely false scenario to try to explain his lack of investigation. Applicant wanted these two people subpoenaed in.order to be able to show the Complainant's habit and routein lifestyle of fighting
with spouses, obviously having make up sex and carrying on in that 2
relationship for years. T.R.E.406 allows introduction of evidence
if the proponent can at least show that the person acted in a spec- ific situation with specific conduct. Anderson V State 15 SW 3d 177, 183. Applicant wanted these people investigated and subpoenaed in order to show the complainant's habit, routein~and custom and was just as much the cause of the fight and make up sex as Applicant ever was. This was not to intimidate her into not testifying. How- ever, Applicant did believe that once she was aware of the fact they were going to be required to testify and tell the truth, she would- realize that her character was going to be impeached, knowing she was lying' about Applicant here, she would decide to tell the truth since she only really reported the physical altercation. Attorney Ray explained many times that her credibility was everything in this case and repeatedly asked me to provide him evidence on Teresa Shaw. He states the same at page 2 of his affidavit where he specifically says[or Teresa Shaw]. What possible other type of evidence was he asking me to provide him on Teresa Shaw. The exact defense Applicant describes here is the exact defense Applicant believed Ray was pur- suing. Her unsavory andtshady past was not the issue, the way she conducted her life in relationships was and our situation was justj an extension of the way she liked to live. Both Rick and Shayna would have been required to testify that the complainant and Rick were in an abusive relationship that lasted years and Shayna was-the child .. .…. born out of it indicating many instances of fighting and make up sex. Raising damaging evidence against Shayna was the not my int- ention concerning the pedophile grandfather, the fact Teresa left her with the grandfather knowing he had molested her was my point while she ran off with another abusive man.
The result of Teresa Shaw and the State knowing no witnesses were subpoenaed was that the state portrayed her as a "polite" per- son(V:A 42), and the Complainant was allowed to tell the jury that this was"the first time she had ever been in this situation"(V:4 49), when there were readily available witnesses who could have truthfully impeached her whether they wanted to or not because g there, as Applicant told the attorney, were victim advocate records 1
available to prove Rick had damaged the Complainant's teeth and she
never took advantage of it because she was to busy chasing drug
dealing boyfriends to get them fixed, 4
ROD BOWERS§ Attorney Ray claims to have talked to~Mr.Boweris, my~boss at the Construction company and landlord during this incident. lf he actually did, he could have easily found out that Mr.Bowers never had a "underaged receptionist" while l worked there. This can be proven up easily at the requested evidentiary hearing. Attorney Ray will also be able to explain why he did not call Rod after speaking to
him and finding out, according to the affidavit at page 3, considering MrdBower's was home all night and neither heard or saw anything of the fight that supposedly lasted hours. This alone would have impp- eached the complainant's version of the case, whether Mr.Bowers wan- ted to testify on my behalf or not.
vSHERIFF RICHARDSON: Applicant had a very favorable relationship
with the Sheriff and spoke to him many times and the Sheriff never mentioned talking to this attorney. Sheriff Richardson is the one
who fired the head of the medical department for the handling of Applicant after the suicide attempt. Again the requested evident- iary hearing with bear this out and the true nature of the conver- Sation, if in fact there was one.
BUTCH TESTERMAN: Attorney Ray requested funds for and investiga-
tor 6 weeks before trial after being appointed for 10 months. This request, as (x-S) shows that Attorney Ray admits only limited inv- »estigation at that point and understood there were a"number of.wit= nesses that needed to be sought out and interviewedv; yet Mr.Ray
now only refers to the investigator concerning Mr.Testerman. Mr. Testerman was on the State's witness list and testified at trial. Attorney Ray claims Butch told him he had"seen Mr.Moss act agg- resive toward Teresa on other occasions" and encouraged her to stop
" The record does not support this calimed statement.
'Seeing him. lt was the Complainant who testified this was our first fight(Vé: 49). lnterestingly, Applicant opines, that if Mr.Testerman freely offered this information to this attorney, surely the same was in the State's possession at trial, and the subject was not broached
'by them.
LYNDON MOSS: Upon receipt of this State's Answer, and reading the paragraph on page 4, where Mr.Ray states he contacted my father; Lyndon Moss, l contacted my father and read him the statements made therein by Mr.Ray. My father, who faithfully supports me then and now, absolutely denied ever speaking to the attorney, other than maybe on trial day briefly. My fathter specifically stated he did not makewthe remarks concerning Teresa being a good woman, he never liked her, and he never stated he supported her in this matter. This is aggravated perjury and a continued bias resulting from the conflict of interest that started when Applicant refused the plea bargain offer for 12 years in prison and culminated in the pres- entation of the false defense at trial, elicitation of extraneous offenses during guilt and innocence(VA: 194-209), and Applicnat's attempted suicide which leddto his return to court Hshackled and cuffed and seperated from the attorney accross the courtroom.
My father has expressly told me that he will be very willing to take the stand under oath and testify that he absolutely never said any of what Mr.Ray claims he saidf Mr.Ray attempts to make Applic- ant look like a child molester, concerning the"underage reception- " ist" and now would have the Court believe that my father actually supported Teresa in this matter. Attorney Ray attempts to drive
this home in his Summary at page 13 where he states no one would
supportwmy version of the case,"not even his.father;ylFor.these~lies,n".Mmi.mh
Applicant will immediately file a State Bar Grievance for the agg- ravated perjury concerning the false claimed statements from my father, with his support and take every single measure to pursue the legal avenues available to correct this type of vindictive att- itude from the attorney. lt is only because of time restraints that Applicant has chosen to rely on the requested evidentiary hearing as opposed to an affidavit from his father,which in in the works
as we speak,and will be presented as it becomes available. The requested evidentiary hearing will allow the Trial Court to make the proper credibility determination under the crucible of cross- examination of Applicant, Applicant's Father, and this attorney,
respectfully. ln conclusion at page 5 Attorney Ray make a conclusory state- ment the"Joe's list of potential witnesses " were detrimental or
their testimony was inadmissable. Mr.Ray cannot claim to have made
a reasonable strategic choice about Rick and §haynafS testimony
when it is very clear he never investigated them. The notes and let- ters were in my possession and shown to him at every visit as well as the letters, and more, sent to him. However, and very important this entire claim, Mr.Ray clearly admits that it was his theory that he alone presented.Page 6 of Aff. Also at page 13 of the aff. he clearly admits he presented his own defense."Rather than present Joe's defense." Applicant has the right to present his own defense and made this clear many times to the attorney as the attorney adm+tr its in this affidavit. The difference in his story and mine is the fact that he led me to believe that my version of the case would be a viable defense and would be presented, not a fabricated defense
based on jealousy that the record bears out was totally false.
GRoUND Twoz:#PLEA NEGOATIONS Applicant didn't "run off" his previous attorney. Applicant did file a state bar grievance on the attorney for his performance or the lack thereof. This is surfeit information used for no other reason than to display the attorney's attitude toward Applicant and has no probative value to this response other than to further prove this attorney's lack of professionalism. Applicant did file a State
Bar Grievnace against attorney_Ray but nor for the reasons he falsely
"State”in"this…affidavitr“Applicant*filedwthe~StateWBar~Grievance~be-~w~~'M~-~
cause after Mr.Ray's appointment he failed to contact me for 6 mon- ths. Again the requested evidentiary hearing will allow Applicant the time to obtain this grievance and easily prove this attorney's false statements. That request is in the mail as l write today.
The affidavit of attorney Ray does more to prove his own ine- ffectiveness than to dispell it. His only defense to the erroneous advice concerning penalty rage defects in (x-6)nnot(x-4) as the att~ Orney states om page 8, is that the document is "incompletel" The {¥K reason itbvincomplete" is the fact that the attorney failed to ever Mw do any meaningful investigation in this case, including while he was advising me to plead guilty "at the begining of the case", acc- ording to his own affidavit at page 8. As his affidavit shows, his advice to plead was not based on specific facts of this case, which
based on well known case authority from the Court of Criminal.App-
eals, would render him ineffective thereby. This attorney should not be allowed to attempt.totourehisrmmineffectiveness by simply saying this all important plea bargain refusal documnet is simply incomplete; The penalty range evidence is a major concern for any defendant who decides to take his case to trial, as argued in App- licant's writ. Secondly this attorney cannot be presumed to have made a strategic decision about witnesses he has completely failed to investigate or interview. lt follows that the strength of the State's,case cannot be properly discerned without investigating it. Relying on th eState's file or interpretation of the evidence is clearly all that this attorney was doing when he offered this plea. This is easily shown by(x-S) where he readily admits,lO months into his representation and only 6 weeks prior to trial, that he only had performed "limited investigation" and understood the need to seekkout and interview a "number of witnesses" in order that App¥ licant "receive his right to effective assistance of counsel?(emph- asis added). The (x-6)rejection clearly shows that this offer was made only one time and "withdrawn" and no other offers would be made. lf this attorney's affidavit is true, that offer was made at the beginning of the representation, not on the eve of trial, as
he attempts to play both sides of the field. The evidence(x-6)shows
this was not a running offer, Applicant absolutely objects to this
attorney_',§_.abi__lity,_._t___<>._ sn_§_er_.,_ thi§ __`af:ll_>flssos§ _-affi€iavfl_,t_ and r_the §P.a_t€.' §..
entering it in such a manner without consideration of that fact. The State's file, because the attorney's file contained this offer and facts concerning withdrawal, the origin of (x-6), should hold the necessary information upon which to judge the truthfullness of the attorney in this instance.The fact remains, the evidence supp- n orts the calim that this penalty range advice was erroneous and
the advice to plead guilty was made prior to any real investiga- tion in the case. Remembering it is Applicant's claim that refusing to plead guilty is what initiated the conflict of interest, this claim effects the entire writ application, not just the plea bar- gain process, These errors have a cumulative effect on this att- orney client relationship that resulted in a conflict of interestf ln that manner, this plea bargain process and evidence can be con-
sidered cumulatively, if it rises to the level of error at all. lSee`GROUND TEN. -
GROUND THREE: INCOMPETENCE AT TRIAL
Attorney Ray claims that Applicant' 'consistently attempted to derail fhe trial process from the beginning of my appointment. " Again this is false. Attorney Ray claims two grievances were filed against him. He is correct. The initial grievance was filed, as stated earlier, because he failed to even contact me in the first . 6 months of his representation. The second grievance was filed after my conviction based on his action at trial, Both have been requested and will be provided immediately upon receipt. The record is full of Applicant's mention of suicide, even before this false charge was filed. The State called the ex-parte note(x-§) a "suicide note" (VA; 130), The State inclosing arguments explained the whole case to be the result of Applicant's mental issues based on (x-Z). Mr.Ray specifically states Applicant became"unnerved" at page 9 of his affidavit after Teresa Shaw started testifying. What exactly happened when Applicant realized she was going to be allowed to tes- tify this was her first time in this situation(V&: 49) and made to look like she was more credible(Vé:&l) by the State, who was well aware of the need to bolster her credibility, and there were no witnesses or evidence dug up by this"attorney" to impeach her,ie, Rickk and Shayna Armijo, or anyone else, Applicant began to be unnerved and because the attorney refused to speak to him outside llof_ the jury'slpresence, as he demanded, the unnerving.further.deve: mm_… lloped into a hopeless dispair and an attempted suicide as opposed to proceeding to trial on the false defense of Attorney Ray(AFF. at 13). This unnerving beganwearlier when the attorney told the l jury they would hear the Complainant testify that this case was` about jealousy(Vé:ZO-Zl). not about the taking of the unwanted v photograph. The record reflects, based on the testimony of the Complainant, who the attorney never talked to prior to trial, that this defense of attorney Ray was false and easily defeated by the truth from the Complainant(V&: 40-41) among other cites as shown on page one of Applicant's Memorandum. This was a complete breakdown in the attornay client relationship and Applicant's ability to con- tinue in this trial, a legal and actual conflict of interest. The attorney admits at page 9 of the affidavit that he completely relied
on the "officer's testimony" and his "own observance of Joe" to
determin Applicant's competency. Attorney Ray never observed App- licant after he left the courtroom knowing Applicant wanted to'talk to him about the false defense being presented, including after the attempted suicide. Applicant was held in a "padded cell". Any competent and loyal attorney would have made an effort to check on his client. And Attorney Ray only made a half-hearted request for continuance, but only after agreeing this was a voluntry absence (VA: 129-130). Attorney_Ray's last statement on page 9 is absolutely true! He was not concerned with Applicant's competence to stand tr- ial, even after admitting l was unnerved in his presence. lt is a fact that Applicant returned the very next day, when some what co- herent, and was chained and sat accross from the attorney with no present ability to confer with the attorney in any manner during: the completion of the trial. There is not a scintilla of evidence to show Applicant indicated a desire to harm the attorney to man- date this action. Furthermore, this seperation deprived Applicant of the ability to know that the Attorney had elicited jail time ex- traneous offenses, the only reason Applicant did not testify in this trial, during his absence. This effectively denied Applicant the ability to testify at the trial upon his return(V§: 11).
The realization that the only defense Applicant had faith in
proving his innocence at trial was just defeated by his own attor-
iney…and»theStatetaking~full~advantage\of~it,~was~the~cause~of…thisw~~w~m~H~
nervous breakdown. When the attorney never showediq)to speak to App- licant, Applicant lost all hope and tired to kill himself. Applic- cant wanted to testify and tell the judge what was going on, and ultimately did so(x-S), which went completely ignored and the att- orney was allowed to present_the defeated and false defense he alone
decided would be presented, by his own admission.
GROUNG SlX CONTlNUANCE lt is appalling this this attorney attempts to pursuade this Honorable Court that he simply mis-spoke concerning his failure to properly request continuance. if this is allowed, adjudicating the merits of a claim based on the record has lost all meaning. The Code of Criminal Procedure and well known and setteled law establishes that the request for continuance be in writing. Reasonable profess-
ional conduct required the request for continuance at that point
of this trial. lt is firmly grounded in the record, therefore nec- essary to raise it on appeal. The request, if.properly.made, would have likely been granted and the object to be gained is the reason the attorney requested it, in order to compell Applicant to attend his own trial. Applicant did return the very next day as soon as he was able. A one day continuance was not such a delay in this trial _topprejudice it. The very fact this attornay elicited 8 matters of extraneous offenses while Applicant was not present demonstrates this attorney did not want Applicant at this trial, especially after_ his attempted suicide and notification to the trial court that he was presenting a false defense on Applicant's behalf. A short recess and continuance are legally and meaningfully different to such a degree this attorney's affidavit is appalling! ' b GROUND SEVEN v ELlClTATION OF EXTRANEOUS OFFENSES
This groundseven and the Statels introduction of this false and perjurious affidavit, given the availability of the record for both the attorney's and their review, prior to entry of this erro- neous affidavit, amounts to no record developement of this ground at all, as prescribed by the Court of Appeals on direct review. This ground is sufficiently egregious to reverse this conviction
standing on itssown and also when it is considered in the totality
..of.theicase,ma~STRlCKLAND-REQUIREMENT,~it~not~only»demonstrateswthew~~w~w~-~--
ineffectiveness on the issue, it demonstrates Applicant's claim of an actual conflict of interest. Furthermore, it cannotes either intentional deception on behalf of attorney Ray or further"flying by the seat of his pants" as Applicant claimed in (x-S). Either way, this claim deserves proper record developement based on the wellknownand inherently prejudicial introduction of extraneous offense evidence during the guilt and innocence phase of a trial. The prejudicial effect, in this trial, entails that it was after the review by the attorney of (x-S) and after the Complainant, State and Attorney Ray were all told by the Trial Court Judge atf (V4:`1025that "jail time" testimony would not only violate the Court's Motion in Lemine, filed by Attorney ray himself(X-lO), but it would be "a mistake in this trial." This complained of multipIé
refrences,to certain behavior that could be termed extraneous mat- ters committed by Joe , as Attorney Ray calls them at page 10 of
his affidavit, absolutely occurred in front of the jury! Teresa Shaw never made refrence of jail time until after it was made per- fectly clear to her and the State as well as Ray, not to do it at (Vé: 102). All of this is proven by the record.
Mr.Ray at page 11 of the affidavit continues flying by the Seat of his pants and without concern for the truth where he att- empts to have this Honorable Court believe that the first instance of "jail time" evidence was "blurted out so quickly that l was un- aware of the limine violation." Not only is this incredible given the discussion that had taken place at p.102 specifically about jail time evidence and his own motion in lemine, but because any reasonable attorney would notice it immediately considering he was the one pacing the questioning, and his understanding of extrane- ous offense evidence at trial has(X-lO). he then tries to pursuade the Court that it was blurted out a second time right before lunch, and he admits or claims it happened to quickly for him to catch it. All eight of the instances Applicant complains about happen inbet- ween (V&f 1947209),INFRONT OF THE JURY. Mr.Ray, after the Trail Cou- rt Judge stops the line of questioning and calls it a "gratuitous" and more and more gratuitous offering", indicating at least three incidents, claims in his affidavit at page 11, that he then made a strategic decision not to object afterrthe jury returned from
lunch- Any first Ys,a_r_a_t__.t.<>ril.¢¥.__.1.<.r19_w__S___, §h..at_;be_ _ proper _ time ,t.<>__. make ; __ _
an objection is at the time it happens in order to give the judge the earliest opportunity to correct or give currative instructions. These were not "vague allegations" of misconduct. this was an in- tended introduction of extraneous offense evidence, out of Applic- ant's presente, in order to bolster the State's case and attack Applicant' character by the Complainant in a he said she said case that Attorney Ray admits comes down to who the jury will believe
in this affidavit while explaining why he advised Applicant not
to testify based on Applicant's past~criminal record.(P.7x2,8,12 x2). There would have b§en no better time to attack the complain- ant's version of the case and show the retribution he claims at page 5 of the affidaivt than at the time she intentionally violated the motion in lemine. The judge had already told everone that the
Objection would be sustained at(V&:lOZ). lt would have been!_This mistake, under the circumstances may well have resulted in mistrial
‘currative instructions would have been given. This would have cast the Complainant in a bad light, the attorney's claimed trial stra- tegy at page 5 based on retribution. His.affidavit doesn't support his own defense strategy and it is completely erroneous and usless as it goes to record developement on this issue because of his "mis- interpretation of the record." This is gross ineffective assistanoe» of counsel. Applicant requests the ability to cross-examine this att-
on the record concerning his claims in this affidavit.
GROUNDS FOUR,FIVE, ElGHT AND NINE
The State,in their Answer at page 7,states that Appli# cant "provides no explanation why he was prevented from raising th- ese claim on Hirect Appeal", while employing a procedural bar. These claims are raised "throught the appellate window" in Ground-l twelve of the writ . ln fact Ground Four on incompetence is spec- ifically argued in Ground112 of the Application and referrs to the needr to raise the judge's failure to make an informal inquiry as an ineffective ass.of counsel against the appellate attorney. lt is preserved and meritorious as argued based on TCCP Art. 46B.001. Applicant conceeds that Ground Five concerning the judge's failure to grant continuance is not properly preserved. However, the claim is substantially raised as ineffective assistance of counsel for the failure to proper request continuance, respectfully. This issue is’also raised'as ineffectiveness of appellate counsel'at ground'””“”" thirteen because it is firmly grounded in the record.
Both Grounds Eight and nine are framed as Constitutional Viol$~ ations concerning judicial bias and cognizable on habeas for the first time. '
Ground Eight is proven in great part byuAttorney Ray at page 13 of his affidavit. Mr.Ray confirms that the defense he presented was his own and not Applicant's. Judge Estevez considered ex- parte communications from Applicant(x-S) specifically informing her of the attorney's false defense. Judge Estevez biasedly ignored the complaint and proceeded in the trial knowing of the false defense and conflict of interest. The continued trial quickly included the jail time evidence, in front of the jury, that she had rejected at (Vé: 102)(V4: 194-209). Yet she allowed it a number of times before
Stopping the trial. this was bias fueled by'Applicant‘s'ex-parte' ` 12
communication no doubt. Because Judge Estevez failed to comply with T.R.CP.lS(a) and allowed the writ to be transferred before she took
the step that is ministerial, ie forwarding the motion to recuse-
to the Presiding dudge, constituting a Sec. 3(c) denial, of which Applicant objected, that Sec.3(c) denial is void, respectfully. Applicant has since received Att.-A to this Objection from the Judge; and Presiding Judge respectfully. The dates of the letters prove beyond doubt that Judge Estevez failed to properly perform her ministerial duties and improperly adjudicated this writ application thereby. The writ was forwarded to the CCA on Novenber 26,2014.
The Judge refused to recuse and was upheld by-the Presiding Judge
on December 4, 2014. this is further evidence of Judicial Bias and refusal to follow specific and-legal mandates, just as she ignored T.C.C.P.46B.00l in the instance of incompetence. Applicant will app- eal the Presiding judge§s ruling to the Court of Appeals instantly based on the fact that the grounds for recusal were not based on in court rulings. There was no ruling on incompetence. lgnoring the competence issue when thevCode 0f Criminal Procedural requires at least an informal inquiry is the issue. Applicant does not take
his actions against a District dudge lightly, however, the issue connects itself to the overall case to the point of forcing App-
licant to trial with unwanted counsel based on consideration of
landexzparte_communication (x-5), knowing of theipresentation_of.a M.….Wi
false defense. Applicant was denied ex-parte communication while he was cuffed and held accross the courtroom after his return to Court by this Judge. That is evidence of a conflict of interest
in and of its self, respectfully.
Applicant relies on Phillips V Woolford 267 F 3d at 988 in reques- ting that the Court of Criminal Appeals remand this case back to
the trial court to be adjudicated by a new judge based on the facts set out in Phillips above."Absent proof of personal bias 3 factors determine whether a case should be remanded to a different judge; 1) Whether the original judge would reasonably be expected upon remand to have substantial difficulty in putting out of hie/her
_mindereviously expressed views or findings determined to be err-
oneous or based on evidence that must be rejected;Z)Whether re- assignment is advisable to preserve the appearence of justice,and 3)whether reassignment would entail waste and duplication out of porportion to any gain in preserving the appearance of fairness ." id 1165 n5 of United States V Arnett 628 F 2d 1162,1165.
f/)
!')
applicant request remand and reassignment to a different judge B§cause the necessary remand itself will require the judge to adj- udicate this writ application after excepting ex-parte communi-
cation from Applicnat at trial that was offensive to her and the
afactnthat this~errone®usqaffidavit from the attorney must be reje-
cted, from attorney Ray, more specifically. The fact the judge has already participated in the writ process, while under the motion to recuse, demonstrates, by her Sec.3
§round Eleven: Applicant simply advers that the ground was incompletely briefed based on the record containg 8 not 2 instances of elicitation of jail time evidence and that would have made the likelihood of reversal on appeal more probable£ v
GROUND TWELVE:The trial judge's complete refusal to follow T.C.C.P Art.46B.001 is firmly grounded in the record. lt is a ministerial act and it was not performed. that means she did not even mention the competence of Applicant after he attempted suicide
during trialn,lm . wl ,1~ h “",_w w w ,_ ".._11._
GROUND THlRTEEN: lt is a well known fact that an attorney muust formally request continuance`by writing. Attorney Ray did not. lt is incredible that the attorney'suboth attempt to pursuade this Honorable Court that this was simply a misstatement. Recess and Continuance have specific and meaningful applications. This re- quest was for continuance not recess. Therefore, it was done in a manner not consistant with reasonable professional judgement or application. Attorney Barfield must make his determinations on the appeal based on the record. The trial attorney said continuance. lt was not properly made and would have been granted if properly requested and it would have gained Applicant the one day necessary to return after attempting suicide and the opportunity to speak to this lawyer, which is what Applicant wanted in the first place,out of the jury's presence. This is ineffective assistance of counsel. Attorney ray did not want to speak to Applicant and this assured he
would not and did not. 14
lNMATE DECLARATION
1 doohereby swear under the penalty of perjury that the statements contained in the above and foregoing document are true to the best of my belief.
CERTlFlCATE OF SERVICE
BY MY SlGNATURE AND ADDRESSES LlSTED BELOW, l DO HEREBY CERT lFY THAT A TRUE AND CORRECT COPY 0F THE ABOVE AND FOREGOING DOCU_ MENT :`WAS SENT THlS THE §QWDAY OF DECEMBER ,2014, TO THE ADD- RESSES LlSTED BELOW BY T E TYPE OF MAlL lNDlCATED NEXT TO THE ADD RESSES.
>l()?§PYP{[ `T§\lf? Y§(l$ 1
21 1 FM 369 N a Park, TX 76367 Allred Unit
CERTlFlCATE OF COMPLlANCECERTlFlCATE OF COMPLIANCE
l hereby certify that this document complies with type face requirements of TEX. R. APP. PROC. 9. 4(e). And it is less than 15 pages in length.
District Attorney‘ \ {\Ao~y\
Warren Clark Justice BLDG,2309 Russell Long Blvd\\ 1 94546
Ste.izo \21 1 FM 369 N Canyon, Tx 79015(REG U.s.Maii) 1\¢, Park TX 76367
District Clerk, Jo Carter 2309 Russell Long BLVD Suite 110 _ Canyon, TX 79015 (Certified return receipt requested)
Court of Criminal Appeals
P.O.BOX 12308 Austin, TX 78711 (Reg U}S.Mail)
ATTACHMENT-A
Ange|a Johnson
Subje€t$ FW! #21,941-C STATE VS. JOSEPH DALE MOSS At"tachments: 2151_001.pdf
From: Angela Johnson Sent: Thursday, December 04, 2014 10:11 AM
To: Judge Ke|ly Moore Subject: #21,941-€ STATE VS. JOSEPH DALE MOSS
Judge Moore,
I have enclosed a topy ofa motion to recuse filed by Joseph Da|e Moss, Cause #21,941-€. l decline to recuse and l request that a judge be appointed to hear the recusal. '
Thank you,
Ana E. Estevez 251St District Judge-
Cc: Randa|l County District Attorney
Joseph l\/loss
Allred Unit
2101 Fl\/l 369 N
|owa Park, TX 76367
NINTH ADMIN[STRATIVE JUDICIAL REGION
Ke|ly G. MOOre 500 W. Main, Rm. 302W
Presiding Judge Bro\vnfleld, Texas 79316
kmoorc@lcrrycounl)-'. org
Clau_d§tf€ Busk€ _ _ rhone (806)637-1329 Admmlstratlve Asslstant ~ Fax (806)637-8918` cbuskel@aol.com '
December 4, 2014
Jo Carter
District Clerk
2309 Russell Long Blvd., Suite 110 Canyon, Texas 79015
Re: _Cause No. 21, 941-C in the 251SI District Court of Randall County, Texas; EX PARTE JOSEPH DALE MOSS ,
Dear Clerk:
In regard to the above, I enclose an original ORDER DENYING MOTION TO RECUSE-SUMMARY DENIAL FOR NON-COMPLIANCE. Please file this among the papers in this case.
Sincerely,
'=~'r~ 11 ' ."';f`<\,!"‘¢ f.‘F-.'r§‘~..§_"\;-‘,lr ,'_~.-:-U, §§
5`1'!,""'_"§ -'.5 ' ‘~" _" "'.,_.'.. ti\_,i.Uu'i.. A\A..;z!_¢r\ (L,i. :v."\]
Kelly G. Moore KGM:djm
ccc Joseph Dale Moss Randall County District Attorney Hon. Ana Estevez
NO. 21,94‘|-C
EX Par'ie lN THE 251st D|STR|CT COURT
OF
CO)¢O)¢O)CO)W)W)
JOSEPH DALE MOSS RANDALL COUNTY, TEXAS
ORDER DENY|NG |\/|OT|ON TO RECUSE-SUi\/|MARY DEN|AL FOR NON-COl\/|PL|ANCE
On this 4th day of'December, 2014, the undersigned in his capacity as Presiding Judge of the Nlnth Administratlve Judicial Region, considered the l\/|otion to Recuse filed by Applicant herein. 1
The |\/lotlon was considered Without hearing. The undersigned finds that the l\/lotion fails to ` comply Wlth the mandatory requirements of Ru|e 18a, Texas Rules of Civi| Procedure and sets forth no factual allegations that Would be admissible in evidence and that, if proven, Wou|d be sufficient to justify recusal. The court further finds that the motion is based solely on .the judge’s rulings in the case. See Rule 18a (a) (2), (3) and (4), TRCP. '
|t is ORDERED that the Applicant's l\/lotion to Recuse is denied
(U
Dated: December4, -2014 Ke|ly G. l\/|oo ` Presiding Judge of the Nlnth Administrativ
Judicia| Region