Pate, Chadrick B

• Court: Court of Appeals of Texas
• Decided: May 19, 2015
• Docket: WR-78,165-02
• Status: Published

Opinion

·•. . . . . . .: • : : : - l

1~.rus-o~ . i

May 18, 2015

Clerk of the Te:xas Court of Criminal Appeals 201 West 14th Street RECEIVED IN Austin, Texas 78701 COURT OF CRIMINAL APPEALS

Nema Bardin MJ).Y 19 2015 POBox 772 Abel Acosia, Clerk Austin, Texas 78767

Re: Enclosed Original Writ of Habeas Corpus Chadrick B. Pate Applicant #01563340, Nema Bardin Pe.tit.i.c\w.r awl Eme..rge..w:y ~M.v.ti.c\t:~ .fnr nr.ig.ir..wJ W..r.i.t .o.f Jhbe.as CntpJ.JS Relief CJ:w.D.r~tck B, P.ate #01563340 Ap,plicant, Nema Bardin Petitioner.

I am the Petitioner in the above referenced Original Writ ofHabeas Corpus.

Applicant Pate: presented his initial 11.07 Habeas Corpus to the trial Court made returnable to this Court. The Initial Habeas Corpus presented under Article 11.07 No. WR-78,165-01 received no "adjudication 'on the merits " by the Trial Court or by the Court of Criminal Appeals.

nt:~ J2/5/J 4 .AJ-1Uli.c.aut .fiJe.d .a .Mo.t.int:~ fD V.ac.af.e Vni.d JJ.Jdglm>..ut iut.o ib.e trial ,e.our.t..AppJ.i,e.aut .a..;;.kt>.d nt numerous occasions for a decision from the trial court. The trial court refused to answer and has not corresponded 'lwithApplicant at all, and that Motion was withdrawn on 5/18/15.

I am now as the Petitioner bringing this Original Writ on behalf of my son Chadrick B. Pate pursuant to Article V, Sec.:S, Constitution of Texas and pursuant to Texas and United States Common Law.

Please file the Writ as an Emergency In The Interest of Justice, as my son has been imprisoned for 7 years under thtis Void Judgment obtained through illegal proceedings held by the trial court which violated his 1s1., 6th and 141h Amendment rights under the United States Constitution.

The trial court committed fraud upon the court, The 13th Court of Appeals, The Texas Criminal Court··-. o.f~4_Aru".a..ls .aw.ll .t..be LT. S. Fe.de..r.aJ Di..~.t 0:\!.lr.t SDJ.\t..be..rn Di.."-tr.ic.t, HDJ.l-'\tnt:~ T.e.Y.aS w..be..t:~ tbey B.rs.t ..beJd an illegal joint trial and obtained a conviction through holding illegal proceedings and filing illegal entries into the: trial court, and then submitting a Void Judgment Record to The 13th Court of Appeals, •crit-s wart ~ 1'-e~C:!S Curnt Di Cimi1J.f"d1 h~d1-s), m1~ tire \3. <;:,. "'ttitt:rro Dt~trtt1"l Curnt '2,uctcrtemDnta:tt1"l , Houston Texas

runderstand tfnat these are fofty and serious cfaims and f have supported the cfaims with the triaf court records, and affidavits which are contained in the Exhibits of the Writ.

1. I am respectfully submitting this Writ as an Emergency for filing and docketing

cc: file

Writ Hand Delivered COCA IN THE COURT OF CRIMINAL APPEALS AUSTIN, TEXAS

WRIT NO.

EX PARTE FROM THE THE DISTRICT COURT

CHADRIC:K B PATE 36TH JUDICIAL DISTRICT \

TDCJ #015(63340 ARANSAS COUNTY, T~XAS .. ,

CAUSE NO. A-08-5080-4CR

COVER SHEET IN THE COURT OF CRIMINAL APPEALS AUSTIN, TEXAS

CHADRIC:K B PATE 36TH JUDICIAL DISTRICT

TDCJ #015163340 ARANSAS COUNTY, TEXAS

APPLICATION FOR ORIGINAL WRIT OF HABEAS CORPUS PURSUANT TO

Article V, Section 5 of the Texas Constitution Article 1, 6. and 14 of the United States Constitution Texas Common Law And United States Common Law

TO THE HOr~ORABLE JUDGE OF SAID COURT:

NOW COMES, Petitioner Nema Bardin on behalf of Applicant Chadrick B. Pate and respectfully

submits this Ori_ginal Writ Of Habeas CoiJms _petitionin_g for relief from a Void Jud_gment in

Cause No. A-08-5080-4CR Chadrick B. Pate.

The Initial Ha1beas Corpus presented under Article 11.07 No. WR-78,165-01 received no

"a<.ljudication ron the merits " by the Trial Court or by the Court of Criminal A_p_peals.

The Judgment, Sentence and Conviction pursuant to The Judgment rendered by the Trial Court

and executed by Trial Court Judge Janna K. Whatley in Cause No. A-08-5080-4CR CHADRICK B.

PATE from the 36th Judicial District Court Aransas Counzy is: Void for Violation of Due Process under

the Texas Contstitution and the United States Constitution , and for Fraud on the Court by the Court.

1 JURISDICTION

The Court of Criminal Appeals has Original Jurisdiction under Article V, Section Five of the

Texas Constitmtion, Article 1, 6 and 14 of the United States Constitution, Texas Common Law

and United States Common Law. State v. Johnson, 821 S W 2d 609. 612 Tx. Crim. App. 1991

held a court off criminal a_p_peals m3:y take action on~y if that action is authorized by

constitutional provision, statute, or Common law, or the power rises from an inherent or implied

power. Mooney v. Holohan, 294 U.S. 103-113 held "To deprive a citizen of his only effective

reme4y wouldl. not onl_y be contrary to the rudimentary demands of justice but destructive of a

constitutional guaranty specifically designed to prevent injustice. Fay v. Noia 372 U.S. 391 Sup. Ct.

1963. The Wnrit lies as a traditional civil remedy for the enforcement of the right to personal

liberty, not as; a stage of the state criminal proceedings or as an appeal therefrom.

Exparte Gimmbonini 117 CAL 573, 49 P 732; VOID judgment is Never final and a judgment

acq_uired through violation of "due process of law" and Fraud is void and never becomes final.

process of lawr" and Fraud is void and never becomes fmal. Exparte Giambonini 117 CAL 573, 49

P 732 I Dubaiii Petroleum Co. v. Kazi 12 S W 3d 71 76 (Tex. 2000,) A judgment will never be

considered fintal if the court lacked subiect matter .iurisdiction. It is well settled law that a legal action

by a court without jurisdiction is a nullity.

THIS ~HABEAS CORPUS IS A COLLATERAL ATTACK ON A VOID JUDGMENT

A collateral attack is any proceeding to avoid the effect of a judgment which does not meet all the

requirements of a valid direct attack. See Glunz, 908 S W 2d at 255, There is neither a set procedure

for a collatera] attack nor a statute of limitations. See Glunz, 908 S W 2d at 255: Davis v. Boone, 786

S. W.2d 85,87 (Tex.App- San Antonio 1990, no writ).

2. PROCEDURAL HISTORY

Applicant was charged in a two count indictment with Murder Texas Penal Code 19.02 (Count 1)

Aggravated Assault Texas Penal Code 22.02/ Engaging in Organized Criminal Activity (~ount 11)

. On February 12, a jury found Applicant guilty of Murder. On February13, 2009, the jury assessed the

maximum. pu:nishment, ninety nine (99) years or life confmement in the Texas Department of Justice-

Institutional Division and a $10,000.00 fine. Applicant filed his notice of appeal on February 25,

2009. Applicamt then appealed his conviction through court appointed attorney. That Court affirmed

the Trial Court's judgment on October 7, 2010: Applicant Pro Se Petitioned for Discretionary Review

was refused om May 25, 2011. The final mandate issued on June 21, 2011.

Applicant then filed Habeas Corpus 11.07 through a paid Habeas Attorney Carrie Crisp. Ms. Crisp

proved to be imexperienced and refused to present Applicant's number one Ground for Relief Void

Judgment for Jack of Jurisdiction. (See note below) When Applicant's Mother found out that she did

not include the Ground he had his Mother with his Power of Attorney to amend the Habeas and add

the Ground fo·r Void Judgment as his number one ( 1) ground. There were no hearings or factual

findings by th·e trial court. and none by this Court.

Applicant's W1rit was denied without Written Order on 3/6/13. Because Applicant is not skilled in the

law he did no1t know to Appeal the 3/6/13 decision and thought that his opportunity to file a Federal

Habeas Corputs was nearing the deadline. He then filed a Pro Se Habeas Corpus pursuant to 28 U S C

2254 that court conducted no evidentiary hearing and denied the Writ with prejudice and no COA.

Applicant tho,ught that he could not Appeal because of the Order on the COA. He then with the

assistance of his Mother as his Power of Attorney began to study to find a way to get back into Court

Sote: Judge J. Price delivered the opinion in Ex Parte Casey Tyrone Sledge No. A-P-76497 and opined that if applicant had raised his present claim in his orginal 'Writ, "We would not hesitate to reach the merits and if appropriate grant relief.

3. Applicant disc:overed that because his Judgment was void that he thought he could ask the Trial

Court for relie:f because he had read 2 cases that helped him understand the basis for asking for relief:

Ex parte :Casey Tyrone Sledge No. A- P- 76947 and Patton v. Diemer 35 Ohio St. 3d 68,518 N E 2d

941 : showing It is not incumbent upon appelle to establish a basis for relief nor is it incumbent for the

court to decide its authority therefrom, Rather thejud,gment sou_ght to be vacated constituted a nullity

therefore withtin the inherent power of the trial court to vacate the Judgment, and then filed a Motion to

Vacate Judgment in the Trial Court on 12/5/14. After requesting on at least 3 occasions a decision

the court had still not ruled or corresponded with A_p_plicant and then he withdrew his Motion on

;/18/15. There are no other motions pending in this matter at this time. Applicant is presently in

custody of Texas Department of Criminal Justice System Stiles Unit Beaumont Texas.

THE COURT'S POWER TO SET THE VOID JUDGMENT ASIJ)E

Where a void jiudgment has been rendered and the record in the cause, or judgment roll reflects the

vice, then the 1court has not only the power but the duty and even after the expiration of the term to

;;et aside such judgment. Harrison v. Whitely, Tex Crim App 6 S W 2d 89.

MANDATORY RELEIF

Relief under void judgment Statute is Mandatory, Carter v. Fenner 136 F 3d 1000, 1005 (5th Cir)

1998. a void jmdgment decree or order may be vacated at any time on motion of a party or any person

affected thereby. Johnson v, Zerbst 304 U.S,.458 Supreme Court 1938 showing when court

violates Constitutional Rights they lose jurisdiction to _proceed to trial and the conviction is void.

E.VlDEN'tA.RY RE.A.RIN.G

Petitioner request evidentary hearing if the Court cannot determine that releif is required tk.-uagi\" tire lAY-s'~·

4 STATEMENT OF THE CASE

A grandjury im Aransas County Texas in the 36th Judicial District of Aransas County indicted

Applicant Chatdrick B. Pate in a 2 count indictment under Penal Codes 19.02, 22.02 and 71.02

along with 4 co defendants on June 24, 2008 See Ex# 2 Indictment. Applicant was the last tc

be arrested,of the other co defendants. A_p_plicant was arrested on M8:Y 5, 2008 when the Aransas

County Sherifilf illegally had his pre trial supervision (on a separate case ) revoked and had the

bondsman withdraw his bond. Applicant had abided by every pre trial supervision requirement.

Thus when the indictment was _presented to him he was already in custody of the Aransas Councy

Jail, where he remained until he was released into the custody ofthe Texas Department of

Criminal Justke in 2009.

Because the State brou_ght the char_ges a_gainst A.P..Plicant alon_g with the other co defendant's his

trial and the o:ffenses were joined. Applicant entered a Plea ofNOT GUILTY and asked for a

jury trial and had his Defense Attorney John Gilmore file a "Motion for Severance of Defendant

and Offenses" on July 31st 2008. See Ex# 1. At some _point 3 of the co defendant's took _plea deals to

testify against Applicant and the only other co defendant (Hall) who plead Not Guilty as well.

Applicant's Attorney John Gilmore came to the jail only twice to visit client although Applicant

asked numerouts times to see him. Both A_p_plicant and Petitioner asked Mr. Gilmore numerous

times about thte Severance, he told both Applicant and Petitioner only a few days before a joint

trial with the other co defendant(Hall) that his Motion for-Severance had been denied. (This was no1

true) however A_P..plicant did not know about this lie until after the trial was over, the A_p_peal had

been denied, amd he was proceeding with a State Habeas Corpus under Article 11.07.

Applicant hired a young inexperienced Habeas Attorney Carrie Crisp, who refused to enter

Ground One :fior Relief at A.P..Plicants reguest "voidjud_gment for lack ofjurisdiction". When

5. Applicant and Petitioner discovered that Ms. Crisp filed the Habeas without this Ground for

Relief, Petitio~ner immediately supplemented the Habeas Cot:pus and amended Ground One to

Violation of d-ue process" Judgment void for lack of jurisdiction". Applicant nor Petitioner knew

at the tine that there were numerous other violations of due process, and fraud involved with the

Applicant's Conviction.

The Court of Criminal Appeals denied Applicant's Habeas Corpus 11.07 without written order

on 3/06/13. H(~ then filed a Federal Habeas Corpus that was also denied. It was after this denial

that throu_gh st:udy Petitioner discovered the numerous due _process violations that the trial court

had abused antd the fraud on the court by the court..

The trial Court focused it's violation of Applicant's Due Process rights under the U.S

Constitution 14th amendment and it's Fraud l!POn ( "1\P.plicant's Motion for Severance of

Defendant and Offenses" ) Although the "Motion for Severance" never received a formal

hearing where a Judge either Granted or Denied the Motion with on the Record Factual

Findings, Judge Joel Johnson did at a_pre trial for the Co defendant Hall SEVERA_p_plicant's

trial from co dlefendant Hall. See Ex# 8 10/23/08 Court Reporters Record Volume 4 of 11 page 5

line 16-25 and page 6line 1-3. Judge Johnson continued Hall's trial date to 1/5/09 and he reminded

A_p_plicant's Defense Attom~y Gilmore, The State, co defendant Hall, co defendant's attom~y Stan

Turpin. and thlle Clerk of the Court, that he would be back in November to hear Applicant's case.

Applicant did not appear at this proceeding that took place on 10/23/08 and he did not appear at any

_pre trial_proce1edin_gs other than his Motion to Dismiss durin_g the entire tine from 6/24/08 to 2/9/09.

He did not kncnw about any pre trial hearings, as his attorney told him nothing about them.

The Court vioLated it's own Court Order when the Court failed to hold Applicant's Court Ordered Trial

on 11103/08 .

6. He did not know that Judge Johnson had Severed his trial. It was after the pre trial hearing on 10/23/08

when Officers of the Court accelerated their scheme to keep Applicant joined for trial by illegally

REJOINING 1them for trial through Fake Proceedings and Motions and Orders .. After the Officer's of

the Court viol:ated Applicant's 14th amendment due process rights and through Officer's Fraud on the

Court. 1\P..Plic ant was tried in a ille_gal joint trial with the co defendant_, found _guiltv and

;entenced to 919 years or life and a $10.000.00 fine. The Trial Court Judge certified into the Court

of Appeals Co·rpus Christi, Texas a Fraudulent Judgment Record, that included fraudulent

documents, antd excluded the fraudulent ~proceedinp;s that they used to r~ioin A_pplicant's Trial

with the co defendant. That same Judgment Record followed Applicant to this Court when he

filed his 11.07 Habeas Corpus, and again when he filed his Federal Habeas Corpus.

Throughout tht~ Memorandum that follows you will see through the review of the Trial Court Record

itself just standing alone that Applicant did not know that Judge Johnson had severed his trial from the

co defendant. You will see the use of fraud and the violation of his due process right to a fair and

impartial trial,. opportunity to be heard, and notice and how they were used to deceive him to

convince

See Ex# 1 haLd been Denied. The Trial Court Record reveals the Fraud and the numerous violatiom

of due ~process; used to illegally Convict A_pplicant and to enter a Void Judgment against him. It was

not just one 0 1fficer of the Court that participated in the fraud but all of them.

The Trial Court and it's Officer's ofthe Court committed fraud and violated Applicant's right to Due

Process under the U.S. Constitution Amendments 1, 6, and 14 and Article 1 and 10 ofThe Texas

2onstitution. See: Ballard v. Hunter 204 , U.S. 241, 255 (1907). Palmer v. McMahon, 133 U.S.

660,668 (1890D) and ICC v. Louisville and Nashville R 227 U.S. 88,93-94 (1913). and The

Administrative Procedure Act, 5 USC 556(d). and Exparte Young 418 S. W. 2d 214.223.

The trial court and it's officers committed fraud on the court when they set into motion a scheme 7. calculated to i1nterfere with the judicial system's ability impartially to adjudicate the matter of

Applicant's properly filed Motion for Severance first and in doing so to influence the trier of fact and

unfairly hamp•ered the presentation of Applicant's Defense Motion and his NOT GUILTY claim.

Fraud on the court occurs where it can be demonstrated, clearly and convincingly that a party has

sentiently set iinto motion a scheme calculated to interfere with the judicial system's abilicy

impartially to adjudicate a matter by improperly influencing the trier of fact or unfairly hampering the

presentation of the opposing party's claim or defense. AOUDE v. Mobil Oil Corp., 892 F.2d.

1115,1118 {1 stt Cir. 198~). It is fraud that denies a losin_g liti_gant the o_p_portunicy to fully liti_gate at

trial his qghts or defenses that could have been asserted. Alexander, 266 S W 2d@ 1001: King

Ranch, Inc. v.• Chapman, 118 S W 3d 742,752 (Tex. 2003). Each of these conditions occurred at the

illegal proceedings in Applicant's Cause No. A-08-5080-4CR.

APLICANT'S CLAIMS/ GROUNDS FOR RELEIF

Claim# 1.

The State and iit's officers committed fraud and violated Applicant's Due Process Rights when

first they brought the charges before the Grand Jury against Applicant and then when illegally joining

Applicant to Defendants and Offenses in a 2 count indictment with Count (1) TPC 19.02 Murder and

:count 2) TPC Sec. 22.02 Assault/TPC71.02 Engaging in Organized Criminal Activity.

Claim# 2.

The Trial Cou1rt committed Fraud and Fraud upon the Court by the Court, when The Court and it's Officers .

l.Entered into a scheme of deliberate misuse of the judicial process designed to defeat Applicant's Chaim oflnnocence by: Disobedience to the Orders ofthe Judiciary, relentless repeated fraudulent act:s of the filing of fraudulent proceedings, documents, Orders, Motions, and Notices Through Lies, Omissions. Commissions and Concealment. (and) 2.Tampering with the Administration of Justice through acts designed to degrade the Judicial system and lying to tlue Court and to The Tier Of Fact. 3. Certifying a Fraudulent Record into the 13th Court of Appeals, Crimiinal Court of Appeals Austin Texas, and the U.S District Court Southern District, Houston Texas; Claim #3.

The Trial Court violated Applicant's Due Process Rights to a Fair and Impartial Trial,

Opportunity ·to Be Heard and Notice when the Trial Court:

1. Disobeyed a Court Order and Failed to hold Applicant's Scheduled Court Ordered Jury Trial Dati! m:t U-1-M.. 2. Failed to Prosecute 3. Proceeded to a Joint Jury Trial after losing Jurisdiction to Proceed. -1. Hmla't'itl.rg R-e t1Tcfl1 ~m Se91;}.1fl.l\.,"\:' S~·m.ti'l.T R\:1\.,"'C\1\n~ liti\5- 1 Ci\'apt"\;r 28 A.t-ttble 28JNSct:'ttmT 1(5) Se:ction 2 5. TRCP41, Criminal Justice Standards Part 11 Standard 13.2.1 and Sec. 310 6. V10hfing Rules ol"Ev1oence (:)14(3) 7. Violating Govt.Code Title 2 Subtitle D.Chap.51Sec.51.901 Subsection J.

Violating Gov1:.Code Sec. 51.303 (a)(b) (1) and Subsection D.(c) 8. Violatimg TCCP Title 1. Chap. 2 Article 2.01 9. TCCP Title 1 Chapter 1 Article 1.05 10. Violating TRAP Rule 34.5 (a), (a)2 11. Violating Tx. R. Civ.301 TCCP Title 1. Chapter 28 Section1(5) and Section 2.

Claim 4.

Ineffective Assistance of Counsel

Applicant received Ineffective Assistance of Counsel under the 6th Amendment and Counsel in

fact stood as a:n Adversary while as an Officer of the Court he Committed Fraud on the Court;,

and Violated Applicant's right to appear, opportunity to be heard and notice.

John Gilmore Applicant's Defense Attorney committed fraud on the court and violated

A.~plicant's Due Process when he lied to his client, to a _potential jury _pool, failed to represent

and defend applicant, participated in a scheme with other officer's of the court to rejoin

applicant's triad to that of the co defendant, failed to notify applicant about pre trial hearings,

"l~peared at he:arin_gs without "lP_plicant's knowled_ge , misr~presented "l~Plicant at _pre trial 9. hearings and mt trial, concealed Orders of the court from applicant failed to secure a hearing

and decision on applicant's Motion for Severance and abandoned applicant's defense and

cooperated with State's attorney to convict.

M.-EMORANDUM IN SUPPORT OF APPLICANT'S HABEAS CORPUS

FACTS IJN THE TRIAL COURT RECORD THAT SUPPORT APPLICANT'S CLAIM'S

FACT 1. INDICTMENT Ex#2

On 6/24/08 an Indictment was filed and Applicant was joined to· 4 co-defendants and Offenses, Count

a) Murdeur under Texas Penal Code Section 19.02 First Degree Felony

Count (2) Aggravated Assault under Texas Penal Code 22.02 and Organized Criminal

Activity unde:r Texas Penal Code 71.02 First Degree Felony.

Applicant and. one other co defendant were tried in aioint trial beginning on 2/9/09. The other 3 co

defendant's go•t plea deals and testified against Applicant.

APPLICANT'S CLAIM UNDER 1 and 3

The State and :it's officers committed fraud on the court and violated Applicant's Due Process Rights to

a fair and impartial trial with opportunity to be heard and notice, when they illegally joined Applicant

to Defendants and Offenses.

The State broulght count 2 against Applicant to convince and confuse both the Grand Jury and the Trial

Court Jury tha.t Applicant was a party to both counts charged in the Indictment and that he was a gang Jfi_ member when in fact they had no evidence of gang related offenses or membership to support the

char,ge. Without evidence the charge could not be brought. However there was ample evidence that all

other co defemdants were members of a gang. The trial court record points to no evidence that

Applicant was a "gang member" with the exception of a so called gang expert that worked for the D.A

Office.

The Rules for Joinder of Defendant's and Offenses are Statutory and it is a violation of due process

when a court does not follow statutory procedures he loses iurisdiction and is barred from proceeding

See Criminal .Justice Standards Part II Standard 13-2.1 and Sec. 310 Joinder ofOffense.:Joinder

is impermissible where the only nexus between (1) Defendants joined for trial is their participation in

similar offense: on different dates with a common third defendant the same transaction or series of

transactions tcest of rule 8(b) is not satisfied.

Applicant time:l_y filed his Motion for Severance of Defendant's and Offenses on 7/31108. See Ex#J

The trial Cou:rt did not hold a hearing and did not provide written factual findings of facts for denying

or granting his Motion for Severance of Defendant's and Offenses. Applicant was denied Access to the

Court and had no qp~portunizy to be heard or notice.

Because the trilal court violated U S Constitutional 141h Amendment Due Process Rights and Statutory l>tQI'.J"..dJJJ:e'i- Th1e. trial ~n:t. ln.'it. 9.ui'iflir..tjJW. tn, tp:QI'.J".J"..d tn, t.J:i.al . .fulm.wm "~~ ~b.U.. 3.0A U.S 4.~

Sup.Ct.1938/:: Fay v. Noia 372 U.S. 391 63 S. Ct

. 822 9 Led 2clll , Aoude v. Mobil Oil Corp. 892 F. 2d 1115, 1118(1 st Circuit 1989). Alexander, 266

S.W. 2D@ 1001:King_Ranch._ Inc. v. Chavman,_118 S.W.3d 742,_752 (fex. 2003)

11. FACT2.

INDICTMENT EX# 2

The indictment charges Murder under Texas Penal Code 19.02 Felony Murder

The Indictment does not charge Murder under Texas Penal Code 19.02 and Texas Penal Code

7.01, 7.02, or 77.03. (which describes "the law of parties").

The Jury found Applicant guilty under Count (1) of the indictment Murder under Texas Penal Code

19.02 which states:

§ 19.02 MlffiU>ER. (a) In this section: (!)"Adequate eause" means cause that would commonly produce a degree of anger, rage, resentment, or terror in a_p(;;!rson of ordinary tell!per, sufficient to render the mind inc~pable of cool reflection. (2)"Sudden pa:ssion" means passion directly caused by and arising out of provocation by the individual killed or another acting with the person killed which passion arises at the time of the offense and is not rolft!JJ t.bft. -.:P..~J.lt. Q{ {QJ:mf"J.. ~Q"\{Qr.Jlljnn_. (b )A person commits an offense if he: (1) intentionalLy or knowingly causes the death of an individual; (2/ ~- ru- \.."'4\ThY ~~ mniiiy· irrjaty '4mi "vmm«s- an .n.:t d~".rrly· d-~mr ru- lrmmr« lik that causes the death of an individual; or

{3) commits or attempts to comrriit a felony, other than mans·laughter, and "in the course ol and "in furtherance of ·the commission or attempt, or in immediate flight from the commission or attempt, he commits or att(;;!mpts to commit an act clearly dangerous to human life that causes the death of an individual. (c) Except as plrovided by Subsection (d), an offense under this section is a felony of the first degree. (d)At the punishment stage of a trial, the defendant may raise the issue as to whether he caused the death under the immediate influence of sudden passion arising from an adequate cause. If the defendant proves the issu.e in the affirmative by a preponderance of the evidence, the offense is a felony of the Reennd .tkg..rre.. APPLICANT'S Claim UNDER 1,2 and 3

Applicant Guilty of Count (1) under Penal Code 19.02 MURDER the trial court did not order an

acquittal for the State's failure to prove the elements of Murder under Penal Code 19.02

Officer's of the Court continually introduced fraudulent evidence on the "law of parties" although

The indictmen1t does not allege that Applicant committed the murder under Texas Penal Code 7.01,

7.02, or 7.03 in connection with the charge of murder under Texas Penal Code 19.02. See Ex# 2 12 . Indictment In ·Cause No. A-08-5080-4CR.

The Trial Court and it's officers prepared a fraudulent Charge of the Court Document

and read aloud "The Charge of the Court" then sent the physical paperwork into the Jury Room with

the Jurors where they used this charge to help ascertain the facts to convict Applicant of Murder. The

Char_ge of the Court looks little like what Texas Penal Code 19.02 reguires to reach a Guilty verdict.

See Ex# 3 •Charge of the Court in Cause No. A-08-5080-4CR.

The trial court and it's officers used this fraudulent " Charge of the Court" as part of a scheme to

confuse the jwrors and to convict A_p_plicant.

The charge of the court presented in open court and in document provides : you are instructed that the

law applicable to this case is as follows:

COUNT ONE 1. Our law provides that a person commits murder if he intentionally or knowingly causes the death of an individual. (itt is true that this statement comports with 19.02 2 (b) 1.

2. .4 pe..r~-mo .acJs J<~JJll)~tLogJ_x n.r w.iib .kt1.0w.lf'.dg.f'~ w.iib .r.f'b')Pt'rJ f.l) .E .r.f'sllh .of.b..t." .c.nos.i.J.JL'J" w.b.f'.o .b.f' _t.,. .Ew.art>:

that his conduct is reasonably certain to cause the result. (Nowhere under statute 19.02 is this

statement found)

A_person acts knowin_gly, or with knowled_ge with re~pect to a result of his conduct when he is aware

that his conduct is reasonably certain to cause the result. (Nowhere under statue 19.02 is thls statement

found. A "deadly weapon means a firearm. (Nowhere under statute 19.02 is this statement found.

Individual meams a human being. (Nowhere under Statute 19.02 is this statement found. 3.

13 committed by his own conduct , by the conduct of another for which he is criminally responsible or by

both.

A person is cri:minally responsible for an offense committed by the conduct of another if, acting with

intent to promtote or assist the commission of the offense,he solicits encourages, directs aids, or

attempts to aid the other person to commit the offense. Mere presence alone will not constitute one a

party to a crin:1e.

FACT3.

CAPIAS AND WAIVER OF ARRAINGMENT

On 6/25/08 a 6Capias was issued under Applicant Chadrick B. Pate in Cause No. A-08-5080-4 CR

See Ex# 3 Applicant's Criminal Docket Sheet.

APPLICANT'S CLAIM UNDER# 3

The trial court violated Applicant's Due Process when they issued a capias and confmed him under a

fraudulent indictment.

The Grand Jur;y would have had to find _probable cause to join A_p_plicant in the indictment and because

the requirememts to join the offenses and defendants are statutory they would have had to determine

that Applicant based on Officer Kirk and Brooks testimony that Applicant met the criteria under

Criminal Justi•ce Standards Part ll Standard 13-2.1 and Sec. 310 8{b) and they could not. J\pplicant

does not have access to the courts files arrest records of all the co defendant's and his own and

therefore canntot include in the exhibits, but the trial court has copies.

When the court violates due _process it loses jurisdiction and canno(proceed. Fay v. Noia 372 U.S. 391

63 S. Ct. 822 9 Led 2d.

14. FACT4.

WAIVER OF ARRAIGNMENT

On 6/27/08 Waiver of arraignment was entered onto Applicant's Criminal Docket Sheet See Ex# 4

Applicant's Criminal Docket Sheet. NO CLAIM

PRE TRIAL DATE AND ANNOUNCMENT DATE 'C{W;\\.~ M-V~~"t..W~ \\£'C{}\\\) ~"£.)

On 7/10/08 entered onto Applicant's Criminal Docket Sheet is Ex# 4

Case Set Pre trial 7/24/08 Ann. 7/31/08 JT 8/4/08

APPLICANT'S Claim UNDER 3 and 4

Ineffective Assistance of Counsel and Violation of Due Process and Statutory Procedures and Rules

notice. Applicant's due process was violated when he was not allowed to appear, and be heard and

notice. There iis no recorded record of this proceeding. A court loses jurisdiction when it violates due

process and lo1ses iurisdiction. TCCP Title 1 Chapter 1 General Provisions Article 1.05 Rights of

Accused. He shall have the right of being heard by himself or counsel or both. Fay v. Noia 372 U.S.

391 63 S. Ct. 822 9 Led 2d.

Fact3 7/24/08

DISCOVERY RULED ON COURT REPORTS RECORD (NONE)

On 7/24/08 Enttered onto Applicant's Criminal Docket Sheet is Discovery Rulled On

J!i APPLICANT'S CLAIM UNDER 2,3, AND 4 Fraud, Ineffective Counsel, and Violation of Due Process

Applicant did not appear at any Hearing on Discovery. The Court violated Applicant's due process

right to impar1tial fair trial, opportunity to be heard and notice and violation of statutory

rule . There is 100 recorded record of this proceeding. However there are Discovery Orders that Judge Jant:W w.hat.t'Jy .TJ.ll.t-.d .nn

Applicant's dwe process was violated, and this proceeding was concealed from him. TCCP Title 1

Chapter 1 Ge~neral Provisions Article 1.05 Rights of Accused. He shall have the right of being

heard by hims,elf or counsel or both.See TCCP Title 1. Chapter 28 Section (1)5 and Section 2 also

~ee Fayv. N·oia 372 U.S. 391 63 S. Ct. 822 9 Led 2d, Aoude v. Mobil Oil Corp. 892 F. 2d 1115,

1118(rt CircULit 1989). Alexander, 266 S.W. 2D@ lOOl:King Ranch, Inc. v. Chapman, 118 S.W.3d

742_.752 (Tex. 200~).

Fact4 7/31/08

Motion for Continuance Granted I Reset Dates COURT REPORTER'S RECORD (NONE)

On 7/31108 entered onto Applicant's Criminal Docket sheet is Ex#4 MFC Granted Ann. 9/25/08 J.T. 9/29/08.

APPLICANT'S CLAIM UNDER 2,3, AND 4 Fraudl Violation of Due Process and Statutory Procedures and Ineffective Counsel

he did not kno'w that a motion for continuance had been granted or that an Announcement date of

9/25/08 had been set or that a Jury Trial date of 9/29/08 had been set. The trial court violated

A_p_plicant's du.e _process rights to an im_partial fair trial, o_p_portunity to be heard and notice. And 16 violation of statutory procedure. TCCP Title 1 Chapter 1 General Provisions Article 1.05 Rights of

Accused. He shall have the right of being heard by himself or counsel or both.

TCCP Title 1 Chapter 28 Section (1)5 and Sec. 2. See: Fay v. Noia 372 U.S. 391 63 S. Ct. 822 9

Led 2d , Aoude v. Mobil Oil Corp. 892 F. 2d 1115, 1118(1 st Circuit 1989). Alexander, 266 S. W. 2D

@ 1001:Kin_g :Ranch, Inc. v. Cha_pmaJ1, 118 S.W.3d 742,752 (Tex. 200~).

Fact 5. 7/31108

Applicanfs Motion for Severance of Defendant's and Offenses It is not Recorded on Applicant's Criminal Docket Sheet EX # 4

Applicant :filedl a timely Motion for Severance of Defendants and Offenses on 7/31/08

See Ex# 1 Motion for Severance.

APPLICANT'S CLAIM UNDER 2,3 AND 4 Ineffective Assistance Violations of Due Process Fraud on the Court

District Clerk repeatedly failed to record Motions onto applicant's criminal docket sheet, Counsel did

not object and Court did not correct. When a court violates due _process it losesjurisdiction and cannot

proceed , Fay v. Noia 372 U.S. 391 63 S. Ct. 822 9 Led 2d , Aoude v. Mobil Oil Corp. 892 F. 2d

1115, 1118(rt Circuit 1989). Alexander, 266 S.W. 2D@ 1001:King Ranch, Inc. v. Chapman, 118

S.W.3d 742.• 75i2 [Tex. 200~).

Fact 6. '}1,1.~Q£ Court Reporter's Record Volume 2 of9 Announcement Chadrick B.Pate A-08-5080-4CR See Ex# 5

Sl'-dl'es" 1lfotfun rurContinw.mc-e Applicant's Request for a Decision on his Motion for Severance of Defendants and Offenses. Judge Wellb orns Reason for Continuing the matter of the Motion for Severance to the next Pre Trial Hearing. District Clerk Duties and Reset Dates

17 On 9/25/08 entered onto Applicant's Criminal Docket sheet is Ex # 4 States Motion 1to Continue Granted Reset 1113/08 JJury Trial 10/03/08 Announcement 10/23/08 Pre Trial.

APPLICANT'S CLAIM UNDER 2,3 AND 4

Ineffec1tive Counsel. Violation of Due Process and Statutory Procedures Fraud on the Court by the Court

Judge Michael Wellborn presided over this proceeding and those that appeared were Attorney John

Gilmore and State's Attorn~y M. Rodriguez.

Applicant did mot know about this hearing and did not appear. TCCP Title 1 Chapter 1 General

ProvisionsAr·ticle 1.05 Rights of Accused. He shall have the right of being heard by himself or

counsel or both. See: Mentor v. Caswell (1997) 123 Ohio App. 3d. 256 Defendant was absent for

unexplained neasons at time of suppression hearing, which proceeded with participation of counsel and

co -defendant , The defendant had a right to be present and denial of Continuance was abuse of

discretion .. In Ap_plicant's case he had a ri_ght to the Severance and denial of same was an abuse of

discretion.

He had a right to challenge the judges reasons for not ruling on his Motion for Severance then.

He had a right to challenge the State's Motion for Continuance. TCCP Title 1 Chapter 1 General

Provisions Arrticle 1.05 Rights of Accused. He shall have the right of being heard by himself or

counsel or both. At this hearing The State filed a Motion for Continuance and Judge Wellborn Granted

the MotionAtltorn~y John Gilmore A_p_plicant's Defense Attorn~y reguested a Decision on A_p_plicant's

Motion for Sfeverance of Defendant's and Offenses that had been filed timely on 7/31108. See Ex#5 Cnurt ~rt·et:~ RJ!co.cd v.nl2. n( 9 tpJPJ!.~ 3 lin£. 9-25 awl tpJP,;e 4. lin£.~ t-4...

Judge Wellbonn continued the Matter of the Severance stating that the reason was that he was waiting 18 to find out if he was going to need to appoint the Co defendant Christopher Hall a new attorney. See Ex#S page 31ines 13-18. Judge Wellborn gave no valid reason to continue the matter of the Severance.

At the hearing although he had continued the Matter of the Severance until the next pre trial date he

signed , dated and granted an Order for Severance. Ex# 6 Order Granting Severance.

Judge Wellbonn made no effort that day or any day to reverse the Order Granting the Severance. When

a judge does ntot follow statutory procedures he violates the defendant's right to due process and loses

jurisdiction to proceed. Fay v. Noia 372 US 391 63 S. Ct. 822. 9 Led 2d.

The District CLerk did not first enter the Order onto Applicant's Criminal Docket Sheet, and did no1

urge another Order reversing the action of the Judge nor did the clerk make any notation on the record

of this order, instead the District Clerk kept the Order in Applicant's file, and later filed the Order into

the Applicant's Judgment Record and certified it as an Overruled Motion on the Severance and then

certified it into The 13th Court of Appeals Corpus Christi, Texas then later told Applicant's Habeas

Investi~ator Stacey Deville See Ex# 7 Deville's Affidavit., that the Granted Order was iust a Qiece

of paper in the Applicant's file.

The District Clerk committed fraud upon the court for purposeful failure to complete the duties of the

office. The District Clerk with other officer's of the court by this failure illegally disposed of Judge

Joel Johnson's Oral Order severing Co defendant's trial from Applicant's trial date, See Ex# 8 Court

Reporter's Rcecord Volume 4 of 11 page Stines 14-25 and page 6lines 1-3.(0ral

Order)

The failure to ·enter the proper proceedings onto the applicant's criminal docket sheet and or the trial

court's record concealed the Order of the Court from the Court and the Applicant. Fraud is defined as

trickery or deceit, intentional misrepresentation concealment or nondisclosure, for the purpose of

inducing another in reliance upon it to part with some calculable thing belonging to him or a false

representationt of a matter of fact by words, conduct or by concealment of what should have been 19 disclosed that deceives or is intended to deceive another so that he shall act upon it to his legal injury

(emphasis ad

The Clerk of the Court has custody of and shall carefully maintain and arrange the records relating to or

lawfully deposited in the clerk's office the clerk shall record the acts and proceedings of the court and

enter alljud_gnnents of the court under the direction ofthejud_ge. Govt. Code Sec. 51.303 Duties of

the Clerk.

In a Post Conv-iction Letter dated October the 51h 2012 See Ex# 9 Letter from Judge Wellborn

in Response to Habeas Attorney Carrie Crisps letter Ex# 10 to him askiqg: for an explanation

He explained ·that he had signed the Order Granting the Motion by Mistake, and that he had meant to

sign the Order on The State's Motion for Continuance.

Even after he was notified of this, he made no effort to issue a Nunc Pro Tunc Order reversing his

decision and by this time the Court of Appeals had already denied Applicant's Appeal.

Applicant did not waive his right to appear at pre trial proceedings.

This was an an_nouncement where 1\P..Plicant's Motion for Severance was a Defense Motion, and any

decision on hi.s motion would decide the course of his entire trial and direct his defense strategy. There

was no reason that the motion could not have been decided that day.

The State's. attorney had not made any ol:2iection to the Motion for Severance either that day or any day

prior to 9 25/08. Applicant filed his motion on 7/31/08 and certified a copy to the States attorney. See ILY..#. t '/AV,i!- 2..

Neither Judge 'Wellborn John Gilmore or the State questioned why defendant was not present at the

hearing . The :Manner in which the proceedings were conducted displays a clear deception and fraud.

These Officer's of the Court committed Fraud upon the Court by the Court. "Fraud Upon the Court"

has been defimed as that fraud committed by an officer of the court in any attempt to deceive, either by

commission, by omission,by speech, by silence, by gesture, by innuendo by look, etc. Whenever this

20 fraud is committed by any attorney or judge, it is a "Fraud upon the Court" In Eugene Lee

Armentrout e:t. al., Ill. 2D 242 75 Ill Dec 703 457 N.E.2d 1262 (1983): Regenold v. by Fold, Inc.,

68 Ill. 2D 41~~,435 12 Ill Dec. 151.369 N.E. 2D 858 (1977) ; In re Lamberis, 93 Ill. 2D 222,229, 66

Ill.Dec.623, 443 N.E.2d 549 (1982); Bulloch v. United States k 763 F 2d 1115,1121 (1985); Root

Refining Co. ·v. Universal Oil Products Co., 169 F2d 514 (1948).

Fraud is defined as trickery or deceit, intentional misrepresentation concealment or nondisclosure, for

the purpose off inducing another in reliance upon it to part with some calculable thing belonging to him

or a false repnesentation of a matter of fact by words, conduct or by concealment of what should have

been disclosed that deceives or is intended to deceive another so that he shall act upon it to his legal

i~iury.(~mphatsis added) In re: E.P. 185 S.W.3d 908 (fex. App. -Austin 2006)

Title 1 Chapt1er 28 Article 28.01 Pre Trial Section 1. (defendant's presence is Required at any pre 1r.wJ

hearing) (5) Motions for continuances either by the State or defendant provided that grounds for

continuance n1ot existing or not known at the time may be presented and considered at any tine before

the defendant announces ready for trial. Section 2 When a criminal case is set for such _pre trial

hearing any such preliminary matters not raised or filed seven days before the hearing will not

thereafter be aU owed to be raised or filed, except by permission of the court for good cause

shown;_providled that the defendant shall have sufficient notice of such hearing to allow him not

less than 10 daLys in which to raise or file such preliminary matters. The record made at such pre

trial hearing the rulings of the court and the exceptions and objections thereto shall become a

_part of the triaJ record of the case l!POn it's merits. Texas CR. Code Ann:29.02 Article 29.02: By

agreement A •criminal action may be continued by consent of the parties thereto, in open court at any

time on a sho-vJVing of good cause, but a continuance may be only for as long as necessary.

TCCP Title 1 1Chapter 1 General Provisions Article 1.05 Ri,ghts of Accused. He shall have the right

21 ofbeipg heardl by himself or counsel or both. The Trial Court had already lost Jurisdiction over the

Applicant and the matter at this 9/25/08 proceeding but continued on with Illegal Proceedings.

Fact 7; 10/23/08

Court Reporters Record Volume 3 of9 Chadrick B. Pate A-08-5080-4CRMotion to Dismiss EX# 11

Entered onto Applicant's Criminal Docket sheet is EX #4 10/23/08 Case: called for Pre 'trial Conference

APPLICANT'S CLAIM UNDER 3; AND 4 Ineffective Counsel Violation of Statutory Procedures

Judge Joel Johnson presided over this proceeding and those appearing were Applicant (the only pre

trial_proceedimg that he was allowed to appear) Defense Attorney John Gilmore and States Attorney M

Rodgrigez.

This hearing W'as on Applicant's Motion to Dismiss the Indictment for the Jail and Detectives violation

of his 6th AmeJndment due Process Violation of Attorney Client Privilege.

All prisoners vvere transported to another jail in Crystal City due to a Hurricane Warning, and before

the State transported Applicant he prepared all of his Notes that he had made for his Defense Attorney

on his DefenS{::!. He had records on discovery at this _point and was able to rebut co defendant's claims.

Before leaving for transport the jail told Applicant that he could not take his paperwork. He told them

that it was unlawful for them to not allow him to take his paperwork. The told him to put the

_paperwork in la clear _plastic bag and label it with his name and the title of the _pa_pers and then to _place

it on top of his bunk. He did so. When he returned, his bag of paperwork was missing. He demanded it

back and supposedly the jail personnel said they looked but could not find it. Applicant was told by an

22 Honest Jailer that he had seen two of the other jailer take it out to a dumpster and place it there and

afterward he saw two of the Investigators retrieve the bag form the Dumpster.

Judge Johnson. Denied the Motion to Dismiss without written order, he did not record any factual

fmdings on thte record for his Decision to Deny Applicant's Motion. When a judge does not follow

statutory _procedure~, he loses jurisdiction to _proceed. Fay v. Noia 372 U.S. 391 63 S. Ct. 822 9 Led 2d.

Defendant andi Offenses however Judge Johnson told Gilmore that Applicant's trial date was for

ll/03/08 and 1that he would be the Presiding Judge. See Ex# 11 page 33 line 8-21

Fact 8. 10/23/08

APPLICANT'S CASE WAS SEVERED COURT REPORTER RECORD VOLUME 4 OF 11 CHRISTOPHER HALL A-08-5080-2CR PRE TRIAL SEE EX# 8

Entered on Cruristopher Hall's Criminal Docket sheet is Ex# 12 Reset: 1/5/08 9~.00am 12/22/0)8 9.00am 11/25/08 9.00am

APPLICANT'S CLAIM UNDER 2;3 AND 4 FRAUD OI~ THE COURT BY THE COURT, INEFFECTIVE CONUSEL, VIOLATION OF DUEPROCESSANDSTATUTORYPROCEDURES

At this pre tria] hearing Judge Joel Johnson also presided. Those present were: Christopher Hall, his

defense Attorr1ey Stan Turpin, States Attorney Flanigan and Rodrigues and John Gilmore Applicanfs

Defense Attonney.. The Applicant did not appear.

23 Stan Turpin co defendant Christoper Hall's Defense Attorney (he was co defendant's second court

a_p_pointed attorney. The first court appointed attorney was Tamara Cochran who was hired at the

2ounty Attormey's office and could no longer represent Hall) asked for a Continuance and Judge

Johnson gran1ted the co defendant's Motion to Continue and Reset his Jury Trial Date to 115/09,

Announcememt 12/22/09 and Pre trialll/25/09. See EX# 8 Volume 4 of 11 page 3line 22-23 pag£ s line 1-25 pilnge 6 line 1-24.

Johnson, Judge I have a co defendant in this matter,and then immediately The States Attorney told

Judge Johnson that they would like to carry Applicants case as well. Judge Johnson told John Gilmore

that he was mearing Applicant's case when he came back in November. See page 5 lines 15-25 and

page 6 lines 1-6. Judge Johnson had already told Gilmore at the pre trial hearing just prior to

this one that hle was coming back in November to hear Applicant's case and he had reaffirmed

the trial date c1f 11/3/08. John Gilmore abandoned Applicant's defense and assisted the State's

Attorney in an_ attempt to keep the trials of Applicant and Co defendant joined.

John Gilmore and the State's attorney knew from the beginning that Applicant had a right to be at these

hearings and tlhat he had not waived his rights to appear, and they continued to appear at proceedings

where his defeunse and _pre trial matters were a part of the _proceedings, these officer's of the court

concealed pro·ceedings from him all together. These officer's of the court committed fraud on the court

and fraud in run effort to keep knowledge of these proceedings from the Applicant. "Fraud Upon the

Court" has bet~n defined as that fraud committed b_y an officer of the court in any attem_pt to deceive,

either by comnnission, by omission,by speech, by silence, by gesture, by innuendo by look, etc.

Whenever this; fraud is committed by any attorney or judge, it is a "Fraud upon the Court" 24 In Eugene Le:e Armentrout et. al;, lit 2D 242 75 Ill Dec 703 457 N;E.2d 1262 (1983): Regenold V;

Baby Fold, In~c., 68 Ill. 2D 419,435 12 Ill Dec. 151.369 N.E. 2D 858 (1977); In re Lamberis, 93 Ill.

2D 222,229, 6'6 III.Dec.623, 443 N.E.2d 549 (1982); Bulloch v. United States k 763 F 2d 1115,1121

(1985); Root JR.efining Co. v~ Universal Oil Products Co.; 169 F2d 514 (1948).

Clear~y Judge Johnson had severed the cases and the trials of A_p_plicant and the co defendant when he

made it clear tto the State's Attorney that Hall's new Trial Date would be 1/5/09 and that he was coming

back in Novennber to preside over Applicant's Trial that had been set for 11/3/08.

The District CLerk did not enter Jud_ge Johnson Oral Order that severed the cases onto

Applicant's C1riminal Docket Sheet or onto any other trial court record. Only the Court Reporter's

Record Ex# 8 reflects the Severance.

The District CI.erk did not issue a new Cause No. on either A_p_plicant's case or co defendant case

There was no need for a hearing to decide which defendant would go to trial first, as Judge Johnson had

just set the co defendant's trial date to 1/5/09 far ahead of Applicant's 11103/08 trial date.

The District C lerk committed fraud u_pon the court for _purposeful failure to com_plete the duties of the

office. The Di.strict Clerk with other officers of the court by this failure illegally disposed of Judge Joel

Johnson's order severing Co defendant's trial from Applicant's trial date. The failure to enter the proper

_poceedings onto the a_p_plicant's criminal docket sheet and or the trial court's record concealed the

)rder of the Court from the Court and the Applicant. Fraud is defined as trickery or deceit, intentional

misrepresentatiion concealment or nondisclosure, for the purpose of inducing another in reliance upon it

to _part with so• me calculable thing belonging to him or a false representation of a matter of fact by

words, conduct or by concealment of what should have been disclosed that deceives or is intended to

deceive anotht:!r so that he shall act upon it to his legal injury.(emphasis added) In re: E.P. 185

S.W.3d 908 (1fex. App. -Austin 200~).

25 The Clerk of the Court has custody of and shall carefully maintain and arrange the records relating to or

lawfully d~posited in the clerk's office the clerk shall record the acts and proceedings of the court and

enter all judgr:nents of the court under the direction of the judge. Govt. Code Sec. 51.303 Duties of

Although Judg~e Joel Johnson did not hold a statutorily required hearing and enter factual findings on

the record, andla Written Order Granting or Denying Applicant's Motion for Severance, he did sever

the trial of At>J?licant and the co defendant. When a judge does not follow statutory req_uirements he

loses jurisdictiionrand cannot proceed. Fay v. Noia 372 U.S. 391 63 S. Ct. 822 9 Led 2d, Aoude v. .Mruw - O» -- £ .2rl JJJ.Sr - -C.nr-p... .89.2 ' JJJ.8{J st Clr~.wt J_9.8_9).._;~JJ'.~.p;. ...... - _.,.._ .... - . - --.... - - -- - .U6 .& W.. .2D@ DDJ;K.iDg ~ Ranch, Inc. v. Chapman, 118 S.W.3d 742,752 (Tex.2003)

Fact 9. 10/30/08

FRAUDULEJNT PROCEEDINGS ENTERED ONTO APPLICANT'S CRIMINAL DOCKET SHEET SEEEX#4 •COURT REPORTER'S RECORD ON 10/30/08 PROCEEDINGS (NONE)

Entered onto Applicant's Criminal Docket Sheet is Ex#4 Defendants Motion for Continuance Reset 1/5/09 Jury Trial 12/22/0B Ahliotincement 2/9/09 Jmry Trial

APPLICANT'S CLAIM UNDER 2, 3 AND 4 Fraud on 1the Court Violation of Due Process and Statutory Procedures Ineffective Counsel

Applicant did mot appear or know about any proceedings for 10/30/08 Applicant's attorney did not

advise him of any proceedings ~d did not tell him about any continuance. There were no scheduled

proceedings for 10/30/08. TCCP Title 1 Chapter 1 General Provisions Article 1.05 Rights of

Accused~ He shall have the right of being heard by himself or counsel or both.

Applicant was; not notified of any proceedings for 10/30/08 either by his Attorney or the Court. 26 Applicant was not before the court for adjudication the court had already lost jurisdiction. Mapco Inc.

Forrest, 795 s.. W. 2d 700, 703 (Tx. 1990). These fraudulent proceedings are not recorded by a

Court Reporter and are not in the Court's Records. The trial court was without jurisdiction to proceed

that parties may have agreed to it are immaterial. The verbal, written or illegally disposed of order,

that ~P..peared to allow the court to ~proceed was in violation of the 1st amendment to the Constitution.

Near Minnesmta ex rei. Olson, 283 U.S. 697,51 S. Ct. 625, 75 L.Ed, 1357 (1931), Shelly v.

Karmer, 334 ns~ L 68 S; Ct. 836 92 L. Ed 1161 (1948);

Once a court orders _per trial orders the court cannot disregard it's own orders. Dennis v. Haden, 867

S. W. 2d 48,5ll Tex. App.(1933). A court's jurisdiction at the beginning of trial may be lost in the court

of the proceedi.ngs due to complete the court as the 141h amendment requires. If the U.S. Constitution

amendments atre not complied with the court loses jurisdiction to proceed. Johnson v. Zerbst 304 U.S. 458 Sup. Ct. 1938.

perhaps onto other Court Records that have been concealed from him. The District Clerk committed

fraud on the c•ourt and the Applicant. The District Clerk committed fraud upon the court for

pufQoseful failure to complete the duties of the office. The District Clerk with other officers of the

court by this failure illegally disposed of Judge Joel Johnson's order severing Co defendant's trial from

Applicant's trial date. The failure to enter the proper proceedings onto the applicant's criminal docket

;heet and or tt1e trial court's record concealed the Order of the Court from the Court and the Applicant.

Fraud is defin

the purpose of inducing another in reliance upon it to part with some calculable thing belonging to him

or a false repr•esentation of a matter of fact by words, conduct or by concealment of what should have

been disclosed that deceives or is intended to deceive another so that he shall act upon it to his legal

injury.(emphatsis added) In re: E.P. 185 S.W.3d 908 (Tex. App. -Austin 2006)

27 The Clerk of the Court has custody of and shall carefully maintain and arrange the records relating to or

lawfully deposited in the clerk's office the clerk shall record the acts and proceedings of the court and

enter all judgr:nents of the court under the direction of the judge. Govt. Code Sec. 51.303 Duties of

Fad 10.

11/03/08

Sc:heduled Trial Date for Applicant Chadrick B. Pate in Cause A-08-5080-4CR

Court Reporters Record 11/03/08 Trial Proceedings (None)

Courts Violation of it's Court Ordered T..rial nat~ Otf J J.CV0.8lu C.au,c;;e Nn .4 -.o.8-5.01W-4C.R C.b.ru:b:ll-.1~ B .P.ro~ RJ'pru-tJ>n RJ>s-nr.d w w - •• - Y~ 2 of9 Ex# 5

APPLICANT'S CLAIM UNDER 2,3, AND 4 Fraud on the Court by the Court, Ineffective Counsel Violation of Due Process and Statutory Procedure and Rules.

The court didl not provide a court ordered jury trial for the applicant on 11103/08 and stated no reason

for failing to do so and gave applicant NO notice. Applicant's Attorney provided no reason or notice,

and there is no Recorded Record of any Proceeding that effected a change in Applicant Court Ordered

Trial Date.

A court's j-urisdiction at the beginning of trial may be lost in the court of the proceedings due to

complete tlhe court as the 141h amendment requires. If the U.S. Constitution amendments are not

;::omplied with the court loses jurisdiction to proceed. Johnson Zerbst 304 U.S. 458 Sup. Ct. 1938.

There are no legitimate court proceedings that overrules or voids Applicant's Court Date.

The court had 1no jurisdiction to proceed to a joint trial or a separate trial of Applicant or to hold any

other proceediings other than Acquittal. The trial court was without jurisdiction to proceed that parties

may have agreed to it are immaterial. The verbal, written or illegally disposed of order, that appeared

28 to allow the court to proceed was in violation of the 1st amendment to the Constitution. Near v.

Minnesota ex rei. Olson, 283 U.S. 697, 51 S. Ct. 625, 75 L.Ed, 1357 (1931), Shelly v. Karmer, 334

U.S. 1. 68 S. «:.:t. 836 92 L. Ed 1161 (1948). Once a court orders per trial orders the court cannot

disregard it's own orders. Dennis v. Haden, 867 S. W. 2d 48,51 Tex. App.(1933).

See: Fay v. Nmia 372 U.S. 391 63 S. Ct. 822 9 Led 2d ·' Aoude v. Mobil Oil Corp. 892 F. 2d 111~,

l118(rt Circmit 1989). Alexander,-266 S.W. 2D@ lOOl:King Ranch, Inc. v. Chapman, 118 S.W.3d

742;752 (Tex~ 2003)~

Fact 11.

11/25/08

CO DEFENDANT CHRISTOPHER HALL PRE TRIAL HEARING A-08-5080-2CR COURT REPORTER RECORD VOLUME 5 OF 11 EX# 13

FRAUDULJENT DISCUSSIONS OF APPLICANT'S MOTION FOR SEVERANCE AND TRIAL DATES.

APPLICANT'S CLAIM UNDER 2,3, AND 4 Ineffective~ Counsel, Fraud on the Court by the Court, Violation of Due Process a Statutory Procedures and Rules

Judge Michael. Wellborn presided over this pre trial hearing with co defendant Hall appearing with his

Defense Attorr1ey Stan TUil.?in and State's Attorney M. Rodrigues.

Applicant Chadrick Pate did not appear nor did his Defense Attorney John Gilmore. Applicant was not

before the coutrt for adjudication the court had already lost jurisdiction. Mapco Inc. v. Forrest, 795 S.

W. 2d 700, 7CG3 (fx. 1990) •

At this proceedling Judge Wellborn, Stan Turpin and M. Rodrigues discussed Applicant's pre trial

motions and tlrial date when he was not present or represented. The Court had already lost jurisdiction

over Applicanlt and the Subject Matter, and committed fraud on the court by the court in having these

discussions th:at would make it appear that Applicant was still in the jurisdiction of the court. A court'~

29 jurisdiction at the beginning of trial may be lost in the court of the proceedings due to complete the

court as the 14J.th amendment requires. If the U.S. Constitution amendments are not complied with the

court loses juritsdiction to proceed. Johnson v. Zerbst 304 U.S. 458 Sup. Ct. 1938.

There arre no legitimate court proceedings that overrules or voids Applicant's Court Date.

The court had 1no jurisdiction to _proceed to a joint trial or a se_parate trial of A_p_plicant or to hold ~Y

other proceediings other than Acquittal. The trial court was without jurisdiction to proceed that parties

may have agreed to it are immaterial. The verbal, written or illegally disposed of order, that appeared

to allow the co·urt to _proceed was in violation of the 151 amendment to the Constitution. Near v.

Minnesota ex: rei. Olson, 283 U.S. 697, 51 S. Ct. 625, 75 L.Ed, 1357 (1931), Shelly v. Karmer, 334

U.S. 1. 68 S. Ct. 836 92 L. Ed 1161 (1948). Once a court orders per trial orders the court cannot

disregard it's own orders. Dennis v. Haden, 867 S. W. 2d 48,51 Tex. App.(l93~).

See page 3lin·es 7-25 This is a discussion between Judge Wellborn, Stan Turpin, and M. Rodrigues

where Judge vlVell born is first advised by Stan Turpin that he has talked with the State and Mr.

Gilmore who !has the co defendant Pate and he has Mr. Hall. He then advises Judge Wellborn that his

client has a mcotion for severance that was submitted by Hall's former attorney Cochran-May and they

were not going to go forward on that motion and that he had talked to his client who was in agreement

. He then adviised Judge Wellborn that he has cheeked with Mr. Gilmore and it's his understanding that

Mr. Gilmore is in agreement with that too unless his client tells him something different, and that was

his understandling.

Then Judge Well born asks who is the defendant then there is a discussion about the

name betweem Judge Wellborn, Stan Turpin and States attorney Rodrigues when they fmally get the

name right. SEE Reporters Record Vol5 of 11 page 41ines 1-13.

Jud_ge Wellborn ask when Pates trial date is scheduled Stan TuiJJen answers Right now on January

30 the 5th. Judge 'Wellborn responds Okay well both cases on the same trial docket at this time? M.

Rod.r\g:uez re~J,Oonds. Yes,. your Honor. Judge Wellborn responds Okay well its kind ofhard to try them

on the same ti:me if it's not on the same docket.

Mr. Turpen responds I understand Judge. Judge Wellborn responds Minor technicality.

Then a De_put)l' Clerk res_ponds And also Mr. Gilmore is not su_p_posed to be here on the 5th. He will be

on vacation ti[l the 9th See page 6 lines 2-7. Stan Turpin: Judge, what I would like to do on that is

leave it in the file just in case we need it because I did talk to Mr. Gilmore. Gilmore says he didn't see

any reason to $ever unless his client told him otherwise , but I haven't talked back with him to know

that, and I don't think he has a motion on file.

At the time of 1this discussion applicant's trial date had already been severed from that of the co

defendant Christopher - Hall and the Trail Court refused to proceed to trial. Applicant .._ -- was not before the

court for adjudication the court had already lost jurisdiction. Mapco Inc. v. Forrest, 795 S. W. 2d 7.Q.f4 7.fl1 (t'L t'l'lfl\-.

The trial court and it's officers had already begun entering and concealing fraudulent proceedings,

motions. Orde:rs, and trial dates onto Applicant's Criminal Docket Sheet.

This discussiom among officers of the court without appearance of Applicant and his Attorney is fraud

and a violatiori of Applicant's due process right to be present, opportunity to be heard and notice. This

is a manipulation of the judiciary and concealment of proceedings from Applicant.

JOHlNSON V. ZERBST 304 U.S. 458 Sup. Ct. 1938 and Fay v. Noia 372 U.S. 391 63 S.

Ct. 822 9 Led. 2d, Aoude v. Mobil Oil Corp. 892 F. 2d 1115, 1118(rt Circuit 1989). Alexander, 266

S.W. 2D@ 1001:King Ranch, Inc. v. Chapman, 118 S.W.3d 742,752 (Tex. 2003).

31 Fact 12.

12/22/08

FRAUDLENT PROCEEDINGS ENTERED ON BOTH APPLICANT CHADRICK B. PATE AND CO JDEFENDANT CHRISTOPHER HALL'S CRIMINAL DOCKET SHEETS

SEEEX#4 ANDEX#12

COURT REPORTER'S RECORD FOR 12/22/08 PROCEEDINGS (NONE)

On Applicant's: Criminal Docket Sheet the following fraudulent proceedings are entered. Ex#4 Continuance Grtanted Reset 2/9/09 Jury Trial 215/f.tCJ .Ao..tJ!\lloc.e.~ut

On Co Defend ant Christoper Hall's Criminal Docket Sheet the following fraudulent proceedings are 'a'A~ro. ¥-""A# ·lNl 12/22/08 ContiLnuance Granted. Reset to Feb. Trial Docket

APPLICANT'S CLAIM UNDER 2;3; AND 4 Fraud on tbae Court by the Court, Ineffective Counsel, Violation of Due Process and Statutory Procedures and Rules.

Applicant did 1not know about any 12/22/08 proceedings and did not appear at any such proceedings.

Applicant was; not told by his attorney or the Court about any proceedings for 12/22/08. Applicant was

not before the court for adjudication the court had already lost jurisdiction. Mapco Inc. v. Forrest, 7.9!t .S. W.. 2rl 7.0{\. 703 (T.x.. J_9_9fl}..

Applicant does not know if co defendant asked for a continuance or if he appeared at any 12/22/08

proceedings, h10wever the Trial Court Record clearly reflects that there was no such proceedings

recorded on tbte record of the court.

These illegal entry's onto Applicant's Criminal Docket Sheet were all a part of the scheme by officer's

of the court to• make it appear that the court still had jurisdiction over the Applicant and the subject

matter when in fact jurisdiction had been lost. Fraud occurs when a party sets into motion a scheme J2 calculated to imterfere with the judicial system's ability impartially to adjudicate a matter by

improperly inf!:luencing the trier of fact or unfairly hampering the presentation of the opposing party's

claim or defense Aoude v. Mobil Oil Corp. 892 F 2d 1115,1118 (1st Cir. 1989).

Applicant was not before the court for adjudation the court had already lost jurisdiction. Mapco Inc. v.

Forrest, 795 s.. W. 2d 700, 703 (Tx. 1990).

The Court hadl already lost jurisdiction for the violation of the Applicant's 14th amendment rights.

JOHNSON V. ZERBST 304 U.S. 458 Sup. Ct.1938.

Fact 13.

2/5/09

F'RAUDLENfT PROCEEDINGS ENTERED ONTO APPLICANT'S CRIMINAL DOCKET SHEET SEEEX#4

COURT REPORTER'S RECORD FOR 2/5/08 UNDER APPLICANT'S NAME OR CAUSE NUMBER (NONE)

The following fraudulent proceedings were entered onto Applicant's Criminal Docket Sheet.

2/5/09 All Ready

APPLICANT'S CLAIM UNDER 2,3 AND 4 Fraud on the Court by the Court, Ineffective Counsel, Violation of Due Process and Statutory Procedures and Rules

Officer's of the: court continued their scheme to defraud the court and the applicant and to influence the

tier of fact. Fr:aud occurs when a _party sets into motion a scheme calculated to interfere with the

judicial systenns' ability impartially to adjudicate a matter by improperly influencing the trier of fact or

unfairly hamp,ering the presentation of the opposing party's claim or defense. Aoude v. Mobil Oil

Cor_p. 892 F. :Zd 1115, 1118 (l"t Cir. 1989).

Applicant did mot know about any such proceedings and did not appear at any such proceedings and

was not told b:y his attorney or the Court about any such proceedings. He did not announce ready.

33 Applicant was not before the court for adjudication the court had already lost jurisdiction. Mapco Inc.

v. Forrest, 79S S. W. 2d 700, 703 (Tx. 199~).

Fact 14.

CHRISTOPHER HALL PRE TRIAL HEARING CAUSE NO. S-08-5080-2 VOLUME 5-A OF 11 SEE EX# 14

FRAUDULENT CASE NUMBER AND VOLUME NUMBERS WERE ENTERED ON CO DEFENDANT CHRISTOPHER HALL'S 2/5/09 PRE TRIAL HEARING COURT REPORTERS RECORD.

This hearing with the fraudulent cause number and volume numbers was not entered onto the co

defendant's judgment roll under the table of contents that listed all the other volume numbers and

cause numhers in the trial court recorded proceedings. SEE EX# 15 page 2 of Reporters /record

Volume 1-11 MASTER INDEX

FACT 15 2/5/09

FRAUDULJENT DISCUSSION OF APPLICANT'S DECISION ON PUNISHMENT BETWEEN JUDGE WHATLEY AND DEFENSE ATTORNEY JOHN GILMORE

CONCEALMENT OF FRAUDULENT PROCEEDINGS

APPLICANT'S CLAIM UNDER 2,3, AND 4 Fraud and Fraud om the Court, Ineffective Counsel, Violation of Due Process and Statutory Procedures and Rules

Co defendant Christoper Hall's Ex# 16 Indictment, Ex# 12 Criminal Docket Sheet, and all other Court Report.er's Records Ex#'s lllllll/l/lllll/llllll/11/11 identify Hall's: Cause No. A-08-5080-2CR not S-08-5080-2

The Court Reporter's Record show under Christopher Halls Recorded Proceedings Volumes

1-11. these Vollumes are listed in the Courts Table of Contents of the Co Defendant's Judgment Roll

that was submtitted to the 13th Court of Appeals Corpus Christi Texas Cause No. 2:12-cv-00093.

34 The Court Reporters Record actually contain 12 volumes on Christopher Hall's pre trials. But the 12th

Volume is stvled Court Reporters Record Volume 5-A of 11 and instead of the proper Cause No. of A

-08-5080-2CR it is represented as S-08-5080-2.

See EX# 15 3RD PAGE TABLE OF CONTENTS

Volume 1 of 111 Master Index Volume 2 of 1:1 Pre trial Motions (7/24/08) (there is no Court Reporter's Record on this) Volume 3 of 11 Announcement (9/25/08) Volume 4 of 1:1 Pre Trial Hearing (10/23/08) Volume 5 of 1Jl Pre Trial Hearing (11/25/08) Volume 6 of 111 Jury Trial Voir Dire Proceedings (2/9/09) Vn.lnm~ 7 nf JJJ ..Jury T.r.ial Gnililnnn~u (2l9.1fl9) Volume 8 of li Jury Trial Guilt innocence (2/i0/09) Volume 9 of 1:1 Jury Trial Guilt Innocence (2/11/09) v~1~m11 3YtTj '"\'TYI.\ 06\\i \'rtmrt.~~ \'l~\1.W8) Volume 11. of JU Punishment-Sentencing (2/13/09)

l!':S!I'N Court Reporters Record ~ofume 5-A of ff was not recorded onto tfte Ta6fe ofContents ofco defendant's Jmdgment Roll like all the other above listed volumes were, and was not submitted to The 13'h Court of Appeals where co defendant filed his Appeal .. Judge Whately and Pam Heard the District Clerk submitte,d a fraudulent Judgment Record to the Courth of Appeals This fraudulent Cause No entered onto thLe Court Reporters Record and fraudulent volume number is part of the scheme that the officer's of the court _participated in to conceal _proceedings from the court and '!J)_plicant and influence the tier of fact,. and deceive any future proceedings held by any other officer's of the court.

At tbi'i bi!aliuf,?, Ttial.llJilibe .laJJn.a.. Wbat.el~ l).tesided aJJ.d thn.~ that aJt.~ed w.ere Co. defeudant.

Christopher Hall with his Attorney Stan Turpin, State's Attorney Patrick Flanigan, and Applicant's

Defense Attorney John Gilmore. Applicant did not appear. Applicant was not before the court for

ac),iuration the court had already lost .iurisdiction. Mapco Inc. v. Forrest, 795 S. W. 2d 700, 703 (fx.

1990). Judge 'Nhatley and all the other officer's in appearance schemed to make it appear that

Applicant had. announced Ready for trial when he was not before the court for adjudication and did no

announce ready for trial this scheme incl~ded kee{_)ing the At>t>licant and the co defendant ioined for

the trial held om 2/9/09. Officer's of the court continued their scheme to defraud the court and the

applicant and to influence the tier of fact. Fraud occurs when a party sets into motion a scheme

calculated to interfere with the judicial systems' ability impartially to adjudicate a matter by 35 improperly infrluencing the trier of fact or unfairly hampering the presentation of the opposing party's

claim or defentse. Aoude v. Mobil Oil Corp. 892 F. 2d 1115, 1118 {1st Cir. 1989).

The Court had! already lost jurisdiction for the violation of the Applicant's 141h amendment rights.

JOHNSON V. ZERBST 304 U.S. 458 Sup. Ct. 1938. The court had no jurisdiction to proceed to a

joint trial or a separate trial of 1\P..Plicant or to hold any other _proceedin_gs other than Acguittal.

The trial courtt was without jurisdiction to proceed that parties may have agreed to it are immaterial.

The verbal, Wlritten or illegally disposed of order, that appeared to allow the court to proceed was in

violation of the 1st amendment to the Constitution. Near v. Minnesota ex rei. Olson, 283 U.S. 697, 51

S. Ct. 625, 7:5 L.Ed, 1357 (1931), Shelly v. Karmer, 334 U.S. 1. 68 S. Ct. 836 92 L. Ed 1161 (1948).

Once a court orders {ler trial orders the court cannot disregard it's own orders. Dennis v. Haden, 867

S. W. 2d 48,511 Tex. App.(1933).

At this pre tria] hearing Judge Janna Whately did not call Applicant's Name or Cause Numbet, she did

not call co defendant Hall's name or cause number. However at the very beginning of the {lroceedings

Flanigan announced Ready on Hall see Ex#l4 page 3 lines 3-5. Flanigan never announced ready on

Pate, and Joh:n Gilmore never announced Ready on Pate.

After some dis:cussions on Hall's pre trial motions, Stan Turpin finally announced ready as well.

See Ex # 14 p:age 3 lines 8-13.

Judge Whatelyr's only question to John Gilmore was Who is doing Punishment and Gilmore's response

was I think we are going to Jury on that. See Ex# 14 page 9lines 16-25 and page 10 lines 1-4.

The court had no jurisdiction over Applicant or the Subject Matter at this time, the court had already

lost jurisdictiom for violating Applicant's 14th amendment to a fair and impartial trial, opportunity to be

hear~ and nottice. Johnson v. Zerbst 304 U.S. 458 SuQ. Ct. 1938.

36 FACT 16.

2/9/09 The Illegal Trial of Applicant

FRAUDULE1NT PROCEEDINGS OF JOINT JURY TRIAL OF APPLICANT CHADR1CK B. PATE ~N.O CO UE.FE.NOAN1: CHlU~.TOPB.ER HALL

In Spite of ;a Court Order by Judge Joel Johnson given by Oral Order on 11/25/08 that Severed the

Trials of App1licant and Co defendant Hall, Judge Whately and Officer's of the Court simply set about

acting alone :and together to manipulate the judiciary process to make it appear that the court still had

jurisdiction o·ver the Applicant and the subject matter and then tried him in an illegal proceeding that

they submitted as a fair and impartial Jury trial.

These Office:r's of the Court participated in hearings that involved Applicant's Motion for Severance,

they all knevv or should have known that Applicant had not appeared at these hearings and could no1

object to theiJr fraud. The officer's knew that Judge Johnson had severed the trials of the Applicant and

the co defendant, they knew that there had not been a formal hearing on the Motion for Severance

where a Judge: entered factual findings on the record for his reasons denying or granting the Motion.

They knew thaLt he did not ask for a Continuance on 10/30/08, and they knew that fraudulent Motions

Orders and Reset Dates had been entered onto his Criminal Docket Sheet. They knew that legitimate

Orders had not: been entered onto his Criminal Docket Sheet.

They conce:aled the illegal entries, Motion, Orders and Reset Dates when a Court Reporter did not

Record the Pv10ceedings, if in fact they held any proceedings.

Officer's of the Court lied when they entered onto Applicant's Criminal Docket on 10/30/08 Motion for

Continuance, then they lied again when they entered All Ready on 2/5/09.

Their fraud in •entering a different cause number and out of seq_uence volume number on CoUrt Reporter Record Volume 5-A of 11 .

IriaJ Crout C.a.u.~ ~Nn . .S-.0.8-5.0.8.0-2 Df f.~ 2151.()9 .P.r~ Irial Hi'.a.tiug Df Ch.ti.'\t!lp.hi-.r 1:J.a.JJ aru:l t.bi-.o ~ODJ

including it hn the Record that they sent to the Court of Appeals is more than suspicious. It was at this 37 hearing that Jrudge Whatley and Officer's schemed to make it appear that Applicant had appeared and

announced reatdy for trial, and then entered it onto his criminal docket sheet.

If the Court of Appeals had that document they would have seen that Applicant was not there.

John Gilmore :had abandoned Applicant's defense long before this hearing and just kept participating in

the fraud.

The trial coULrt and it's officer's through the various frauds just mentioned above and throughout this

Habeas Mo1tion willfully abused the judicial process, their lies, deception dishonesty, their silence,

commission, Clmissions , speech, etc. made it impossible for Applicant to present his defense.

The scheme that they put in place to keep Applicant and co defendant joined for trial at any cost, could I

not help to ha've influenced the jury (tier of fact). Applicant was convicted and his liberty stripped from

him by a Judiaical System that he trusted to hear his defense and Acquit him. He was not willing to

take a plea dteal for something he did not do. He trusted the judicial system and his Defense Attorney.

He relied on •a "jury" that was deceived by the State to Acq_uit him. A jury that had no idea all that had

gone on befone he appeared in front of them and plead "Not Guilty".

The fraud and violation of Applicant's due process did not stop here, the fraud continued even after

Applicant's Conviction . However at the illegal trial various more frauds and violations of Applicant's

due process were abused.

The following is a list of event's of the proceedings in this fraudulent proceeding.

Before the tria] started on 2/9/09 at the Voire Dire proceeding See Ex# 17 Court Reporter Record

Volume 4 of 9, page 102 lines 5-25 .

Applicant's 1V1other was entering the Court room and was stopped at the door and told

that she could not come in for the trial. She went to the District Clerk's Office and asked to see a Judge

The clerk asked her why and she told her that she was not being allowed to go inside the court room.

Clerk went to announce her to the Judge, when she came back she told her that the Judge told her to go 38 back down there and she would be allowed to go in. She went inside and was told to stand on the back

wall because there was no seating for her.

At the Voire Dire a potential Juror Ms. Voss kept asking John Gilmore (Applicant's Attorney)

about why both Applicant and Co defendant were at the same trial. Gilmore finally gave her an

answer. See Ex# 17 Court Reporters Record Volume 4 of 9 Chadrick B. Pate page 102 lines 5-25.

He said we are being forced to do it this way okay. We don't want to.Ms.Voss was not picked for the

jury trial.

After the Voire: Dire Proceedings the Jury Trial_proceeded, and before it did , A_p_plicants Mother was

;tanding outside the Court Room Doors in the Lobby Area when a woman who did not identify herself

and who was unknown to his Mother stated loudly. I am invoking "The Rule" Applicant's Mother

Asked first Wlho the woman was and she identified herself as Assistant District Attorney and then

Applicant's M:o~her asked what rule she was talking about and the woman's response was you cannot

come into the court room during the trial unless you are called to testify. See Texas Rules of

Evidence Inv1okin_g Rule 614 Under this rule at the reguest of a _party the court shall order witnesses

excluded.so that they cannot hear the testimony of other witnesses and it may make the order of it's

own motion. This rule does not authorize exclusion of (3) a person whose presence is shown by at

party to be ess:ential to the _presentation of the _parcy's cause. The Court violated Applicant's right to be

heard and notiice.

There is no on the record request from any party to exclude Applicant's Mother . Applicant was not

given an o_p_portunity to be heard to challenge the Rule and to _present his case that his Mother should

not be excluded under Rule 614 (3). There is no record that Applicant was given and opportunity to

be heard or notice. Applicant's Mother was not called to testify. It was the State that subpoena her to

testify.

Applicant was brought to the trial in Leg Restraints. There is no Court Order ordering him to wear Leg 39 Restraints and no hearing on the matter. Someone in the audience stated out loud.( that person was a

witness for the State who obviously was sitting in the court room) He is injail I can see

his Leg Restraints. See Ex# 18 Trial Transcript page 259,260 and 261 and Ex# 19 Applicant

Affidavit. The court must make independent determination that restraints are justified and must state

its reason on 1the record. See Deck ck v. Missouri 544 U.S. 622 {2007).

Defense Atton:1ey John Gilmore, Co Defendant's Attorney Stan Turpin, and the State's Attorney

stayed silent as to the justification of Leg Restraints on Applicant violating Applicant's Dut::

Process ri.,ghts and committin.,g fraud on the court.

Defense Atton:1ey motioned for a severance numerous times at trial, to which Judge Whately simply

overruled and held no hearing, and made no on the record factual findings for her reasons to deny the

severance. See Ex# 20 Trial Transcript Reporters Record Volume 6 of9 page 22111-25.

Judge Whately allowed the State to bring in the statement of a co defendant that was not testifying

that Applicant 1could not confront. She simply told the Jurors to disregard the statement.

· At the sentenci_ng and _punishment _proceedings John Gilmore did not call one Witness on A_p_plicant's

behalf, and he: did not tell Applicant's family that they could testify for him until about an hour before

the proceedings. Applicant's Best Friend and Sister had already left the proceedings for the day and

Ap_plicant's M1other could not reach them. A_p_plicant would not allow his Mother to testify because she

was still in sho1ck and devastated from the Jury having found a Guilty Verdict against her oldest child

and only son.

APPLICANT'S CLAIM UNDER 2,3. AND 4

Every single event at the 2/9/09 joint trial of Applicant was Fraud upon the Court and a violation of Applicant's Right to Due Process under both the Texas Constitution and the u. s. Constution.

40 THE EVENlfS AFTER THE TRIAL AND CERTIFICATION OF APPLICANT'S JUDGMENT

AND CERTIFICATION TO THE 13TH COURT OF APPEALS CORPUS CHRISTI, TEXAS

EA.cr t7. FRAUDULENT RECORDS IN CERTIFICATION OF APPLICANT'S JUDGMENT ROLL TO THE ~3TH C&..PRTOF APPEALS CORPUS CllRlSfl TEXAS, CRliHlNAL COURT OF APPEALS, AUSTIN, TEXAS AND THE U.S. DISTRICT COURT SOUTHERN DISTRICT OF TEXAS AT HOUSTON TEXAS

6/24/09

Applicant's Claim under 2,3, and 4 6/24/09

ERATJOTlLEl!\TT RECORDS. lN. CERilflCA.TlON Of A.PPLlCANT'S. JUDGMENT ROLL TO THE i3tH COURT OF APPEALS CORPUS CHRISTI TEXAS

Judgment Records to the 131h Court of Appeals Corpus Christi, Texas . Judge Whatley certified See

EX# 24 Judgfe Whately's Certification the proceedings that were held , instruments and other papers

that were filedl in cause A-08-5080-4 CR Cbadrick B Pate.See EX# 14 INDEX CHAD RICK B.

PATE A-08-5080-4CR page 1 under last entry on the page showing Order on Motion for Severance.

See Ex # 6 • This is the same Order that Judge Wellborn called a Mistake and said that it had

not been officiially filed. See Ex# 9. It is also the same Order that the District Clerk Pam Heard

;aid had not been filed and was just a piece of paper in the file. See Ex# 7. Yet Judge Whately

says it was a p1roceeding that was held and it was filed into Cause No. A-08-5080-4CR. The District Clerks Office (Pam Heard's Office ) also certified that the Order was a proceeding

that was held :and filed in Cause No. A-08-5080-4CR. See Ex# 23 District Clerk Pam Heard's

Certification .. By submitting the Order on the Motion for Severance Judge Whately and Pam

Heard committed Fraud on the Court.

The Index (Judgment Record inA·08•5080 ..4CR) that Judge Whately and Pam Heard submitted to the 41 Court of Appeals is not only fraudulent for listing the Order on the Motion for Severance as a

_proceedin_g that was held and filed into Cause No. A-08-5080-4CR Chadrick B. Pate.

It is also fraudlulent because the Index does not list all of the Fraudulent Proceedings that the Court

entered and mcorded as held and filed in Cause No. A -08-5080-4CR on Applicant's Criminal

Docket Sheet See Ex# 4. The ille.p;al Proceedin.,gs that Jud.,ge Whately and Pam Heard did not certifiy

to the Court o:f Appeals, are the Proceedings that were used to make it appear that Applicant had been

legally rejoine~d to the Co defendant for a joint trial after they refused to hold the Court Ordered Trial

for Applicant con 11/3/08. The listed Proceedings had to be Concealed from the Court of A_p_peals

otherwise the Fraud committed against the Applicant and The Court of Appeals, Criminal Court of

Appeals and the Federal Court would have been revealed and Applicant's conviction would have been

Overturned lomg ago. 1. Proceeding 0111 10/30/08 Defendant's Motion for Continuance Reset dates Jury Triall/5/09 An.OlliJD£.eQJ,l\1 t2Ll2lfl8.\. 2. Proceeding 12/22/08 Reset dates Jury Trial2/9/09 Announcement 2/5/09 3. Proceeding 2/5/09 All Ready

The Judgment for Chadrick B. Pate Cause No. A·08-5080-4CR does not conform to statutory rules.

See: Trap Rule 34.5 (~)states Contents

Unless the pa1rties designate the filings in the appellate record by agreement under rule 34.2 the

record must imclude copies of the following: Trap Rule 34.5 (a) (2) Indictment or Information.

An_y S_pecial Plea or Defense Motion that was _presented to the court and OVERRULED

Any Written ''Waiver, any written stipulation and in case in which a plea of guilty or nolo

contendre an;y documents entered for the plea.

The Motion foJr Severance is a Defense Motion_pursuant to 34.5 (a) (2) however it was not overruled.

The Order Granting Applicant's Severance dated 9/25/08 EX#6 is the Order that Judge Wellborn said 42 that he signedl by mistake and the same order that The District Clerk had called just a piece of paper in

the Applicant"s file. And the Court Index Judgment does not include all of the Fraudulent Proceedings

entered on Applicant's Criminal Docket sheet.

Also see: Tx. R. Civ. 301 Judgment of the court shall conform to the Pleadings nature of case

proved and the verdict if an_y and shall be so framed as to give pany all relief in which he is

entitled eitht;~r in law or equity .

Judge Whately- and the District Clerk violated Applicant's Due Process right to a fair and impartial

A_p_peals Proce:ss, to be heard and notice and committed fraud on the Court, the 13th Court of A_p_peals,

The Court of Criminal Appeals, Austin and the U.S. District Court for the Southern District ofTexas, \

Houston Division where the fraudulent record was entered to conceal the Trial Court's fraud on the

court by the court. And to be certain the A_p_peals Process would be denied.

;'Fraud is defined as trickery or deceit, intentional misrepresentation, concealment, or nondisclosure,

for the purpos•e of inducing another in reliance upon it to part with some valuable thing belonging to

him, or a false: representation of a matter of fact ~y words, conduct or by concealment of what should

have been dis;closed that deceives or is intended to deceive another so that he shall act upon it to his

legal injury," (emphasis added) In re E.P ., 185 S.W. 3D 908 (Tex. App.-Austin 2006)

FACT 18

The District Clerk's Responsibility to report fraudulent documents

See Govt Codle Sec. 51.303.Duties of the Clerk (a)The clerk of a district court has custody of and

shall carefully maintain and arrange the records relating to or lawfully deposited in the clerk's

office. (b) the clerk of a district court shall ((1) record the acts and proceedings of the court (2)

enter all j udgr:nents of the court under the direction of the ,iudge.

also see Govt.. Code Title 2 Subtitle D. Chap. 51 Section 51.901 Subsection J. showing: It is the

duty of the District clerk if the clerk has reasonable basis to believe in good faith that a 43 fraudulent doeument or instrument has been previously filed or recorded or offered or

submitted for :filing or for filing and recording is fraudulent, the clerk shall:(l) if the document is

a purported judgment or other document purporting to memorialize or evidence an act, an

order, a directiive, or process of a purported court, provide written notice of the filing,·recording

, or submissiom for filin_g or for filin_g and recordin_g to the stated or last known address of the

person agains1t whom the purported judgment, act, order, directive, or process is rendered;

Applicant's Claim Under 2 and 3 Fraud on the Trial Court, and Courts of Appeals

The District CJlerk did not provide notice to Applicant of Fraudulent Judgment, Criminal Docket Sheet

Court Order or Index Sheet that their office certified to the l3 1h Court of Appeals. The District Clerk

did not provide notice of the Purported Motions for Continuances, Purported Orders on Continuances,

Purported Court Ordered Reset Dates, Purported Announcements (that do not exists in the Court

Records,) only on the Applicant's Criminal Docket Sheet. The District Clerk and Court should have

had a reasonable basis to believe in good faith thai: the above mentioned documents were fraudulent.

1. Becaus:e the clerk's office is the party that discovered with the court that the Order Granting

Applicant's Motion was a mistake but yet allowed it to be certified to the 13th Court of Appeals Corpus

Christi, Texas 2. Because the clerk's office has custody of and shall carefully maintain and arrange the

records relatimg to or lawfully deposited in he clerk's office.

The Clerk reco1rded as filed the above mentioned documents when the clerk's office knew that

every proceed:ing/document, order, reset day, announcement motion and order entered onto the

A_p_plicant's Criminal Docket Sheet after the 10/23/08 hearing on his Motion to Dismiss were

fraudulent entries. The Clerk's office knew that there were no Recorded Proceedings in the Court

Record showimg evidence of any of the entries that the Clerks' office made onto the Criminal Docket

Sheet after the~ 10/23/08 hearin_g.

44. The District Cterk and Judge Janna Whatley committed fraud and fraud on the court when they

submitted a Fraudulent Judgment to the 13th Court of Appeals and failed to Report Fraudulent Records

filed and enter,ed into the Trial Court and the 13th Court of Appeals Corpus Christi, Texas.

Letter fr())m Judge Wellborn in Response to Letter from Habeas Attorney Carrie Crisp. Ex#9

Without quoting Judge Wellborn, he in essence stated that he was the pre trial judge at a hearing for a

Motion for Se:verance by Applicant on 9/25/08 but that the State req_uested a Motion for Continuances

that same day and that both parties agreed to continue said matter. He said that while he meant to sign

an Order Granting the Motion for Continuances, he instead had signed the Order Granting the Motion

for Severance by mistake. He said that there were several orders in the Clerks file and they brought

him the wronE~ Order but that they discovered it quickly and that is why the order was never formally

filed and did not get a file stamp . He went on to explain that normally all Orders received a file stamp

when they we:re filed . He also stated that when someone announced that one or more of the parties :1£.,,

were waving there rights to a jury trial that the Motion for Severance became Moot.

Judge Wellbo1rn did not explain why the Order Granting the Motion remained in the file or why he

did not reversie the action of signing the Order. He also did not say who made the announcement and at

what proceedi:ng it was announced, or why there was no record. on an announcement or factual

findings on hi:s reasons for determining the Motion was Moot. See EX# 9 Letter from Judge

Michael Wellborn to Carrie Crisp.

Facts in The Trial Court Record regarding the claims in Judge Wellborn's letter do not comport with the: .cJ.aitr.\,'\ There is no rec:orded proceeding of any Announcement announcing that one or more of the defendant's

There is no rec:orded proceeding where Judge Michael Wellborn rendered the Motion Moot and

45. provided a decision with factual findings on the Record

There is no Record of notice of any such hearing and there is no notice to Applicant of a decision

finding the Mcotion Moot.

There are laws and procedures that must be followed at pre trial and trial.

Announcemen1ts are Sl!P.POSe to be made on the record and Notice _given.

Defense Motioms must be ruled on prior to trial and a hearing had to determine the facts presented in

the Motion, a :Decision must be made on the Motion with factually findings that support either the

Granting or Dtenial of same and notice _provided.

When a Motiom is presented to the judge the maker of the Motion must also prepare a Order for the

Judge to sign and provide said order to the judge and they go over the Motion and Order together.

It is not the clerk that _prepares or _presents the Order, it is the Maker ofthe Order.

John Gilmore 1told the Applicant and his Mother who both inquired numerous times that the Motion for

Severance was denied, He told Applicant's Mother this only a few days before trial when she insisted

that he find outt what was _goin_g on with the severance.

CONCLUSION

Because the trial court proceeded to a joint jury trial with the co defendant when Applicant

Chadrick B. P'ate and the natter were not properly before the court for adjudication, the trial

court had no j1urisdiction to enter a Void Judgment, Sentence and Conviction against him and

illegally impri son him in the Texas Department Criminal Justice System.

All of the Fact:s Presented Both On The Record of the trial court and Outside the Courts Record and

SuQported by the Courts records or sworn affidavit verify the Conclusion that At>t?licant's Judgment is

Void.

46. That Conviction was acquired through the Violation of Applicant's Due Process Rights to a fair and

impartial trial, opportunity to be heard and Notice, and that Officers of the Court committed Fraud

on the Court b:y the Court in order to obtain an illegal Conviction of the Applicant.

They each one and all at one time or another made intentional misrepresentations to the Court, were

deceitful, usedl trickery concealed facts, were _passively silent, _prevented a decision on a defense

motion presentted fraudulent documents, entered fraudulent proceedings and used deception by

commission, by omission, by speech, by silence, and by innuendo to obtain the conviction

The trial court: _proceeded to trial when they had no jurisdiction over A_p_plicant or the matter

and gained an illegal conviction that illegally imprisoned Applicant,

Applicant nor the issue were properly before the court for adjudication. The trial court violated

A_p_plicant's Due Process Rights to a impartial and fair trial, o_p_portunity to be heard, and notice

through their ~violations of Applicant's Due Process, fraud and fraud upon the court that caused the

Court to lose j urisdiction to proceed to trial and to enter a Void Judgment, Conviction and Sentence.

Johnson v. Ze1rbst 304 U S 458 Sup Ct , Fay v. Noia 372 U S 391 (1963)

Mapco Inc. V~ Forrest, 795 S W 2d 700.703 (Tx. 1990) See Armstrong v. Obucino 300 III

140,143 (192l), Bracey v. Warden US Supreme Court No 96-6133 (June 9th 1997)

Exparte Youn:g 418 S. W. 2d 214.223(Tx. Crim. App. 1977.

Fraud may comsist of both active misrepresentation and passive silence. Vela v. Marywood

17 S. W. 3d 7'50, review denied with per curiam opinion 53 S W 3d 684 rehearing of petition for

review deniedl (Tex App. Austin 2000).

"Fraud Upon the Court" has been defined as that fraud committed by an officer of the court in any

attempt to dec:eive, either by commission, by omission,by speech, by silence, by gesture, by innuendo

47 by look, etc. \Vhenever this fraud is committed by any attorney or judge, it is a "fraud upon the Court"

In Eu_gene Le:e Armentrout et. al.,'Ill. 2D 242 75 Ill Dec 703 457 N.E.2d 1262 (198~): Regenold v.

Baby Fold, In.c., 68 IU. 2D 419,435 12 Ill Dec. 151.369 N.E. 2D 858 (1977); In re Lamberis, 93 Ill.

2D 222,229,66 Ill. Dec.623, 443 N.E.2d 549 (1982); BuUoch v. United States k 763 F 2d 1115,1121

(1985); Root )Refining Co. v. Universal Oil Products Co., 169 F2d 514 (1948) ·

Fraud occurs when a party sets into motion a scheme calculated to interfere with the judicial system's

ability impartially to adiudicate a matter by improperly influencing the trier of fact or unfairly

hampering the: presentation of the opposing party's claim or defense. AOUDE v. Mobil Oil Corp.,

892 F.2d. 1115,1118 (1st Cir. 1989).

[t is fraud that denies a losing litigant the opportunity to fully litigate at trial his rights or

defenses that could have been asserted. Alexander, 266 S W 2d@ 1001: King Ranch, Inc. v.

Chapman, 118 S W 3d 742,752 (Tex. 2003).

[n Fay v. Noia. the court observed: Criminal proceedings so fundamentally defective as to make

imprisonment ]pursuant to them constitutionally intolerable should not be allowed to obscure the basic

continuity in the conception of the Writ as remedy for such imprisonment.

48 PRAYER

Whereforce Petitioner Prays that the Court grant Chad rick B. Pate releif from which he is entitle«d in this proceeding, that includes an Order for his Immediate Release from Incarceration, OrdJtt Va.:atin~ an.d Diun.is.~ ~ Vnid .lu.d.PJD£nt , Sellf£n£e, a.n.d. Cnn.v.id.inn., an Onrder Removing the Conviction from all Judaical and Government Records, And ·an Ordenr that Sanctions the Trial Court and it's Officers of the Court for the fraud and due ~ tNkAtimM ittllkted IYp'tflT Clndrkk B Pdre. Aad aa,· «ker mid tlttrt l$ ttfwNahk M /rim.

&4'\. IN THE COURT OF CRIMINAL APPEALS AUSTIN, TEXAS

TDCJ #015,63340 ARANSAS COUNTY, TEXAS

.OATH

STATE OF' TEXAS, COUNTY OF TRAVIS

I NEMA BARDIN BEING DULY SWORN, UNDER OATH SAYS: I AM THE PETITIONER iN THIS ORI,GINAL HABEAS CORPUS ACTION AND KNOW THE CONTENTS OF THE ABOVE APPJLICATION FOR WRIT OF HABEAS CORPUS AND, ACCORDING TO MY BELIEF, Tffi~ FACTS STATED IN THE APPLICATION ARE TRUE.

l'l-\-~ SUBSCRilliJED AND SWORN TO BEFORE ME MAY Hrf'H 2015 •

. . . . . . ~!"k~',,, N. A. CADENA bt.A;~t---.. Notary Public, State of .Texas L.<.. ~) ~ .. My commission Exp1res NOTARY PUBLIC -..,;.;._....~~+? october ac, 20l8 .,,,,,?,~,,......... . .. .. ·-~

sc. IN THE COURT OF CRIMINAL APPEALS AUSTIN, TEXAS

TDCJ #015t63340 ARANSAS COUNTY, TEXAS

PETITIONER'S INFORMATION

NEMABA.RDIN P. 0. Box 7·72 Austin, Tex:as 78767

512-487-0197 cell

CERTIFICATE OF SERVICE

I do hereby certify that a true original of the above and foregoing Application of Original Habeas

Corpus w~ils personally hand delivered on the 191b day of May, 2015 to The Texas Court of

Criminal Appeals Clerk's Office at 201 W. 14tb Street Austin, Texas 78701

~~~ner

51. IN THE COURT OF CRIMINAL APPEALS AUSTIN, TEXAS

TDCJ #015(63340 ARANSAS COUNTY, TEXAS

COVER SHEET

TABLE OF CONTENTS IN THE COURT OF CRIMINAL APPEALS AUSTIN, TEXAS

CHAD RICK 18 PATE 36TH JUDICIAL DISTRICT

TDCJ #015632~40 ARANSAS COUNTY, TEXAS

TABLE OF CONTENTS

LETTER TO CLERK COURT OF CRIMINAL APPEALS

EXHIBIT LIST (2 PAGES)

EXHIBITS 1-24

ORIGINAL WRIT OF HABEAS CORPUS (51 PAGES)

JURISDICTION PAGE 2

PROCEDURAL HISTORY PAGE.3 AND 4

STATEMENT OF THE CASE PAGE 5-8

CLAIMS/GROUNDS FOR RELEIF PAGE 8-10

FACTS SUPPORTING CLAIMS GROUNDS FOR RELEIF PAGE 10-46

CONCLUSION PAGE 46-48

PRAYER PAGE 49

OATH PAGE 50

CERTIFICATE OF SERVICE PAGE 51

TABLE OF CONTENTS PAGE -·....... ' IN THE COURT OF CRIMINAL APPEALS AUSTIN, TEXAS

EXHIBIT LIST

Ex# 1 Motiom of Defendant Chadrick Pate for Severance of Defendant's Ex # 2 Indictment Ex # 3 Char~~e of the Court Ex # 4 Crimimal Docket Sheet of Applicant Chadrick B. Pate Ex # 5 9/25/018 Reporters Record Volume 2 of 9 Chadrick Pate Ex # 6 Ordenr on Motion for Severance Chadrick Pate 9/25/08 Ex # 7 Affidavit of Stacy Deville (On statement from Pam Heard on Mistake of Severance Order page ll paragraph 3 Ex # 8 10/23/'08 Reporters Record Volume 4 of 11 Pre trial hearing Christopher Hall A-08-5080- 2CR Ex# 9 Judge! Wellborn's letter to Carrie Crisp Applicant's Habeas Attorney Ex# 10 Carri·e Crisp letter to Judge Wellborn Ex# 1110/23/1~8 Reporter's Record Volume 3 of 9 Chadrick Pate Motion to Dismiss A-08-5080- 4CR Ex# 12 Criminal Docket Sheet Christopher Hall A-08-5080-2CR --. E..x# L" JJ.l2..".1fl8 JUpnrt.u.s Runrrl Vnhun.e .5 nf JJ pr£ ir.ial Ju>.ar.i.og Chr.i~.u Hall _A-.0.8·:SJl8.0- 2CR Ex# 14 2/5/019 Reporters Record Volume SA of 11 pre trial hearing S-08-5080-2 t.:\.¥t -...~ Ytmt~ \Tt&a. C'f.m+~ \WI. <:-mart\\~~ \\u-m-1! 'hko.WA 1m 11 ~ 'l Ex# 16 Indic·tment Christopher Hall A-08-5080-2CR Ex# 17 2/9/09 Reporters Record Volume 4 of 9 page 102 line 9-25 Chadrick Pate A-08-5080· .:rCR Ex# 18 Repo•rters Record Volume of pages 259lines 1-25

Ex# 19 Affid:avit of Applicant Chadrick Pate on Leg Restraints

Ex# 20 Reporters Record Volume 6 of9 page 221lines 1-25 Chadrick Pate Ex# 21 Index of Events certified to Court of Appeals Chadrick Pate

Ex# 22 JudgDDent Front Page Chadrick Pate A-08-5080-4CR

Ex# 23 District Clerk Certification to the Court of Appeals

Ex# 24 Judge Whately'S certification to the Court of Appeals of all proceedings. IN THE COURT OF CRIMINAL APPEALS AUSTIN, TEXAS

TDCJ #015~63340 ARANSAS COUNTY, TEXAS

EXHIBIT 1

MOTION OF DEFENDANT CHADRICK PATE FOR SEVERANCE OF DEFENDANT'S Case 4:13-cv-00709 Document 5-13 Filed in TXSD on 05/17/13 Page 37 of 60

CAUSENO. A-08-5058-4CR

THE STATE OF TEXAS • IN THE DISTRJCT COURT

vs. • 361h JUDICIAL DISTRICT

CHADRICK PATE • ARANSAS COUNTY, TEXAS MOTION OF DEFENDANT CHAQRICK PATE FOR SEVERANCE OF DEFENDANTS TO THE HONORABLE JUDGE OF SAID COURT: NOW COMES the Defendant, Chadrick Pate, by and through his attorney John Gilmore, and respectfully moves this Court for an order severing the offenses charged against this Defendant in the indictment herein from the offenses charged the co- defendants and for a separate trial thereon, on the grounds that this Defendant is by the joinder herein and for good cause would respectfully show unto the Court as follows: I. Defendant believes that there are previous admissible against the co-defendants ( ; in this case. II. Further, we believe that there will be conflicts in the defenses of this Defendant and the co..;defendants which will be prejudicial to Defendant if they are tried together. III. A joint trial of Defendant and his co-defendants poses a security risk to Defendant and to trial participants and spectators. WHEREFORE, Defendant respectfully prays that this Honorable Court sever him from the co·defendant indicted herein and order a separate trial of the charges against him from the offenses charged the co-defendants and for such other and further relief as this Honorable Court may deem just and proper.

fi~,· · .=: ..,_ rv::;:;. 'cloci(~_M. .· . . . . . . .

. ·-'-··~:Grn :;8..-lt·fl·\·,,:~;,;r.i Clerk-· · ·· _ o·~.· C<.J:\ _, .·· .• ~~o .. len!> - . .. :. . ' . -· Case 4:13-cv:oo709 Document 5-13 Filed in TXSD on 05/17/13 Page 38 of 60

Respectfully submitted,

622 S. Tancahua/ P. 0. Box 276 Corpus Christi, Texas 78403 (36ruil'. ~82-4378/phone (361 .882·3635ffax A ORNEYFOR DEFENDANT BARNO. 07958500

CERTIFICATE OF SERVICE I, John Gilmore, do hereby certifY that a true and correct copy of the foregoing Motion of Defendant Chadrick Pate for Severance of Defendants has been served on Aransas County District Attorney's Office, Nueces County Courthouse, 301 N. Live Oak Street,

Rockport, Texas on this the,'?~y of July, 2008.

~

.?J1 IN THE COURT OF CRIMINAL APPEALS AUSTIN, TEXAS

EXHIBIT 2

INDICTMENT INDICTMENT

THE STATE OF TEXAS va •. MICHAEL JASON UNDERWOOD, CHRISTOPHER JOSEPH HALL, ANTHONY LEE RAY, CHADRICK B. PAT~ AND KEVIN RAY TANTON

OFFENSE Murder, Aggravated Assault /Engaging In Organized Criminal Activity TPC Sec. 19.02/ Firat Degree Felony TPC Sec. 22.02/71.02/1 Firat Degree Felony

WITNESS·. Michael Brooks, Ruaaell Kirk

:~.~:~:~~:.:.~~~=~~. :~:.~~. . . :.::!::. . . :~:.::~~.: IN THE NAME AND BY AUTHORITY OF THE STATE OF TEXAS

Count One

COMES NOW THE GRAND JURORS for the County of Aransas, State aforesaid, duly

selected, organized, impaneled and swom as such at the April Term, A.D, 2008, of the 36th Judicial

District Court, in and for said County, a quorum thereof being prese.nt, upon their oaths present in

and to said Court that MICHAEL JASON UNDERWOOD, CHRISTOPHER JOSEPH HALL,

ANTHONY LEE RAY, CHADRICK B. PATE, and KEVIN RAY TANTON, acting alone and

together, on or about the 4th day of January, A.D. 2008 and anterior to the presentment of this

Indictment, in the County and State aforesaid, did then and there intentionally or knowingly cause

the death of an individual, namely, Aaron Watson, by shooting the said Aaron Watson with a

firearm;

Count Two

AND THE GRANO JURORS AFORESAID, upon their oaths aforesaid, do further present in

and to said Court that MICHAEL JASON UNDERWOOD, CHRISTOPHER JOSEPH HALL, ·

ANTHONY LEE RAY, CHADRICK B. PATE, and KEVIN RAY TANTON, acting alone and

together, on or about the 4th day of January; A.D: 2008 and anterior to the presentment of this Indictment, in the County and State aforesaid, did then and there intentionally, knowingly or

recklessly cause serious bodily injury to Aaron Watson by shooting the said Aaron Watson with a

handgun, the same being a firearm;

And the defendants did then and there commit said offense with the intent to establish,

maintain, or participate in a combination or in the profits of a combination who collabprated in

carrying on said criminal activity;

against the peace and dignity of the State IN THE COURT OF CRIMINAL APPEALS AUSTIN, TEXAS

EXHIBIT 3

CHARGE OF THE COURT Charge Jmy p. I

Cause No. A-08-5080-4· CR

THE STATE OF TEXAS § IN THE DISTRICT COURT OF

§ ARANSAS COUNTY, TEXAS

CHADRICKB.PATE § 36TII JUDICIAL DISTRICT

CHARGE OF THE COURT

MEMBERS OF THE JURY:

The defendant, CHADRICK B. PATE, stands charged by indictment with the

offenses of COUNTS 1 MURDER, alleged to have been committed on or about

January 4, 2008 in Aransas County, Texas; and COUNT. 2 AGGRAVATED

· ASSAULT, alleged to have been committed on or about Janwuy 4, 2008, in Aransas

County, Texas. The defendant is also alleged to have committed ~e offense of

Aggravated Assault in Count 2 while ENGAGING IN ORGANIZED CRIMINAL

ACTIVITY. The defendant has pleaded not guilty to each offense you are

instructed that the law applicable to this case is as follows:

1.

Our law provides that a person commits murder if he intentionitlly or

knowingly causes the death of an individual. ,.

Charge Jury p. 2

2.

A person acts intentionally, or with intent, with respect to a result of his

conduct when it is his conscious objective or desire to cause the result

A person acts knowingly, or with knowledge, with respect to a result of his

conduct when he is aware that his conduct is reasonably certain to cause the result.

A "deadly weapon" means a firearm

•Individual" means a human being.

3. 7. c:,---~ Cet.)C~j Our laws provide that a person is criminally responsible as a party to an

offense if the offense is committed by his own conduct, by the conduct of another

A person is criminally responsible for an offense committed by the conduct \ \

of another if, acting with intent to promote or assist the commission of the offense,

he solicits, encourages, directs, aids, or attempts to aid the other person to commit

offense. Mere presence alone will not constitute one

f'6Y1A l 0od..

~~-t-V¥\- e.-w-\. rvt c.Js-\ \1 -e pYt) \)e\ 4. Ch'"'\? 1 Now, if you find from the evidence beyond a ~onable doubt that on or

about January 4, 2008, in Aransas County, Texas, the defendant, CHADRICK B. Charge Jury p. 3

PATE, acting alone or together with Michael Jason UndetWood, Christopher Joseph

Hall, Anthony Lee Ray, and K,evin Ray Tanton, did then and there intentionally or

knowingly, cause the death of an individual, namely, Aaron Watson by shooting the

said Aaron Watson with a firearm, then you will find the defendant guilty of

Murder.

Unless you so find from the evidence beyond a reasonable doubt, or if you

have a reasonable doubt thereof: you will acquit the defendant of murder as

alleged in Count One

If you have found the defendant guilty of Count 1 do not proceed to Count

Two of Aggravated Assault

5. Our law provides that a person commits an aggravated assault if the person

intentionally, knowingly, or recklessly causes serious bodily injury to another.

6.

A "deadly weapon" means a firearm. Charge Jury p. 4

The term "serious bodily injury" means bodily injury that creates a I substantial risk of death or that causes death, serious permanent disfigurement, or

protracted loss or impairment of the function of any bodily member or organ.

7.

A person acts intentionally, or with intent, when it is his conscious objective

or desire to cause the result.

A person acts knowingly or with knowledge, when he is aware that his

conduct is reasonably certain to cause the result

A person acts recklessly, or is reckless, with respect to the result of his

conduct when he is aware of but consciously disregards a substantial and

unjustifiable risk that the result will occur. The risk must be of such a nature and

degree that its disregard constitutes a gross deviation from the standard of care

that an ordinary person would exercise under all the circumstances as viewed from

the actor's standpoint.

8.

Our laws provide that a person is criminally responsible as a party to an

offense if the offense is committed by his own conduct, by the conduct of another Charge Jury p. 5

for which he is criminally responsible, or by both.

A person is criminally responsible for an offense committed by the conduct

of another if, acting with intent to promote or assist the commission of the offense,

he solicits, encourages, directs, aids, or attempts to aid the other person to commit

the offense. Mere presence alone will not constitute one a party to a crime.

9.

A person commits an offense of Engaging in Organized Criminal Activity if,

as a criminal prison gang, he commits Aggravated Assault.

10.

"Criminal prison gang" means three or more persons having a common

identifying sign or symbol or an identifiable leadership who continuously or

regularly associate in the commission of criminal activities.

11.

It is no defense to prosecution for the offense of Engaging in .Organized

Criminal Activity that:

(1) one or more members of the combination are not criminally responsible Charge Jury p. 6

for the object offense;

(2)' one or more members of the combination have been acquitted, have not

been prosecuted or convicted, have been convicted .of a different offense, or are ,

immune from prosecution;

(3) a person has been charged with, acquitted, or convicted of said offense;

or,

(4) once the initial combination of three or more persons is formed, there is a

change in the number or identify of persons in the combination as long as two or

more persons remain in the combination and are involved in a continuing course of

conduct constituting an offense of Engaging in Organized Criminal Activity.

LIMITING INSTRUCTIONS

You are instructed· that if there is any evidence before you in the case

regarding the existence of a criminal prison gang, the defendanf s membership in a

criminal street gang, and/or the criminal street gang's commission of criminal

activities, such evidence, if any, was admitted for the limited purpose of aiding you,

if it does aid you, in determining the issues of the defendant's guilt or innocence of

engaging in organized criminal activity, and for no other. This evidence, if any,,.can

only be considered by you after you have determined the defendant is in fact guilty

of one or more of the offenses charged. You may consider this evidence for that Charge Jury p. 7

purpose, and no other. To find the defendant guilty of Engaging in Organized

Criminal Activity, each element of the crime must be proven beyond a reasonable

doubt

You are instructed. that if there is any testimony before you in this case

regarding the defendant's 'having committed offenses other than the one for which

he is now on trial, you cannot consider said testimony for any purpose unless you

find and believe beyond a reasonable doubt that the defendant committed such

other offenses, if any were committed, and even then you may only consider the

same in determining the motive or identity of the defendant, and for no other

purpose.

12.

Now, if you find from the evidence beyond a reasonable doubt that on or

about January 4, 2008, in Aransas County, Texas, the defendant, CHADRICK B.

PATE, acting alone or together with Michael Jason Underwood, Christopher Joseph

Hall, Anthony Lee Ray, and Kevin Ray Tanton, did then and there intentionally, iD knowingly, or recklessly, cause serious bodily injury,11Aaron Watson by shooting the

said Aaron Watson with a Handgun, the same being a firearm. You will find the

defendant guilty of Aggravated Assault as alleged in Count Two

Unless you so find from the evidence beyond a reasonable doubt, or if you

have a reasonable doubt thereof, you will acquit the defendant of Aggravated Charge Jury p. 8

Assault as alleged in Count Two

If you have found the defendant guilty of Aggravated Assault in Count 2,

answer the following special issue - otherwise, do not answer this special issue.

SPECIAL ISSUE

Do you find the evidence beyond a reasonable doubt that on or about

JaV1v.qr~ ~~zooj in ~l~ County, Texas, the defendant, CHADRICK B. PATE,

member of a criminal prison gang? Answer "Yes" or "No."

13.

You are instructed that an accomplice as the tenn is herein after used means

any person connected with the crime charged,_ ~- a._p!lf1y thereto, and includes all =-= person who are connected with the crime, as such parties, by unlawful act or

omission on their part transpiring either before or during the time of the

commission of the offense. A person is criminally responsible as a party to an

offense if the offense is committed by his own conduct, by the conduct of another

for which he is criminally responsible or by both. Mere presence alone, however,

will not constitute one a party to an offense.

The witnesses Michael Jason Underwood, Anthony Lee Ray, and Kevin Ray

Tanton are accomplices. If an offense was committed, you cannot convict the

defendant upon accomplice testimony unless you first believe that the testimony is Charge Jury p. 9

true and shows the defendant is guilty as charged and then you cannot convict the

defendant upon said testimony unless you further believe that there is other

testimony in the case, outside the evidence of the said witnesses Michael Jason

Underwood, Anthony Lee Ray, and Kevin Ray Tanton tending to connect the

defendant with the offense committed, if you find that an offense was committed,

and the corroboration is not sufficient it merely shows the commission of the

offense but it must also tend to connect the defendant with its commission, and

then from all the evidence you must believe beyond a reasonable doubt that the

defendant is guilty of the offense charged against him.

14.

Our law provides that a defendant may testify in his own behalf if he elects

to do so. This, however, is a privilege accorded a defendant, and in the event he

elects not to testify, that fact cannot be taken as a circumstance against him. In this

case, the defendant has elected not to testify,. and you are instructed that you

cannot and must not refer or allude to that fact throughout your deliberations or

take it into consideration for any purpose whatsoever as a circumstance against the

defendant.

A grand jury indictment is the means whereby a defendant is brought to trial

in a felony prosecution. It is not evidence of guilt nor can it be considered by you

in passing upon the question of guilt of the defendant. The burden of proof in all Charge Jury p. 10

criminal cases rests upon the State throughout the trial and never shifts to the

All persons are presumed to be innocent and no person may be convicted of

an offense unless each element of the offense is proved beyond a reasonable

doubt. The fact that he has been arrested, confined, or indicted for, or otherwise

charged with the offense gives rise to no inference of guilt at his trial. The law

does not require a defendant to prove his innocence or produce any evidence at all.

The presumption of innocence alone is sufficient to acquit the defendant unless

the jurors are satisfied beyond a reasonable doubt of the defendant's guilt after

careful and impartial consideration of all the evidence in the case.

The prosecution has the burden of proving the defendant guilty and it must

do so by proving each and every element of the offense charged beyond a

reasonable doubt and, if it fails to do so, you must acquit the defendant.

It is not required that the prosecution prove guilt beyond all possible· doubt;

it is required that the prosecution's proof excludes all "reasonable doubt"

concerning the defendant's guilt.

In the event you have a reasonable doubt as to the defendant's guilt after

considering all the evidence before you, and these instructions, you will acquit

him and say by your verdict ''Not Guilty."

You are the exclusive judges of the facts proved, of the credibility of the Charge Jury p. 11

witnesses, and the weight to be given their testimony, but you must be governed

by the law you shall receive in these written instructions.

After you retire to the jury room, you should select one of your members as

your Presiding. Juror. It is his or her duty to preside at your deliberations, vote

with you, and, when you have unanimously agreed upon a verdict, to certify to

your verdict by using the appropriate form attached hereto and signing the same as

the Presiding Juror.

During your deliberations in this case, you must not consider, discuss, nor

relate any matters not in evidence before you. You should not consider nor

mention any personal knowledge or information you may have about any fact or

person connected with this case which is not shown by the evidence.

No one has any authority to communicate with you except the officer who

has you in charge. After you have retired, you may.·communicate with this Court

in writing through this officer. Any communication relative to the cause must be

written, prepared and signed by the Presiding Juror and shall be submitted to the

Court through this officer. Do not attempt to talk to the officer who has you in

charge, or the attorneys, or the Court, or anyone else concerning any questions you

may have.

Your sole duty at this time is to determine the guilt or innocence of the

defendant under the indictment in this cause and restrict your deliberations solely Charge Jury p. 12

to the issue of guilt or innocence of the defendant.

Foilowing the arguments of counsel, you will retire to consider your verdict.

Date/time: -~-J./_tL-...i/!-~~1___ 5 fVh--

c:AJh s·.A-S ·· • • • f

Charge Jury p~ 13

Cause No. A-08-5080-2- CR

CHADRICKB. PATE § 36TII JUDICIAL DISTRICT

VERDICI' FORMS

We, the Jury, find the Defendant, CHADRICK B. PATE, GUILTY of MURDER, as alleged in the indictment

!?nv:LJ ;J ~ PRESIDING JUROR

(~ 0~ Qc(:P

~ We, the Jury, find the Defendant, CHADRICK B. PATE, NOT GUILTY of MURDER.

PRESIDING JUROR

H you find the Defendant not guilty of Murder as alleged in Count One, then proceed to Count Two. .. .' Charge Jury p. 14

Cause No. A-08..5080-4- CR -

THESTATEOFTEXAS § IN Tiffi DISTRICT COURT OF

CHADRICK BLAKE PATE § 361H JUDICIAL DISTRICT

VERDICT FORMS

USE ONLY ONE FORM:

We, the Jwy, find the Defendant, CHADRICK B. PATE, GUILTY of AGORAVATED ASSAULT, as alleged in the indictment.

SPECIAL ISSUE {Answer only if you have found the defendant guilty of this count)

Did the Defendant, CHADRICK B. PATE, commit said offense as a member of a criminal prison gang? (answer "Yes" or "No")

ANSWER: orL We, the Jury, find the Defendant, CHADRICK B. PATE, NOT GUILTY of COUNT TWO.

PRESIDING JUROR ,

IN THE COURT OF CRIMINAL APPEALS AUSTIN, TEXAS

EX PARTE FROM THE THE QISTRICT COURT

EXHIBIT 4

CRIMINAL DOCKET SHEET APPLICANT CHADRICK B. PATE .....-...:.\ .·V\ f', /~ 1\1 :1d' %.!"\_ CRIMINAL DOCKET CASE NO. ;1-tJP-.:f'.c>tP~-.if..t::J.L N -

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EXHIBIT 5

9/25/08 REPORTERS RECORD VOLUME 2 OF 9 CHADRICK B. PATE 1

( \ '

1 R E P 0 R T E R' S R E C 0 R D

2 VOLUME cJ OF q 3 TRIAL COURT CAUSE NO. A-08-5080-4-CR

4 THE STATE OF TEXAS IN THE DISTRICT COURT OF 5 vs. ARANSAS COUNTY, TEXAS 6 CHADRICK PATE 36TH JUDICIAL DISTRICT 7 ********************************************************* 8 ANNOUNCEMENT

9 ********************************************************* A P P E A R A N C E S 10 ATTORNEY FOR THE STATE: 11 MR. MARCELINO RODRIGUEZ 12 Assistant District Attorney ( P.O. Box 1393 13 Sinton, Tx. 78387 (361) 364-6220 14 Fax No. (361) 364-9490 SBN: 00797336 15

16 ATTORNEY FOR THE DEFENDANT: MR. JOHN GILMORE 17 Attorney at Law 622 S. Tancahua 18 Corpus Christi, Tx )8401 (361) 882-4378 19 SBN: 07958500

23 On the 25th day of September, 2008, the following proceedings came on to be heard in the above-entitled and 24 numbered caus~ before the Honorable Michael E. Welborn, Judge .. presiding, in Rockport, Aransas County,. Texas: 25 ~~~, I'-...... Proceedings reported by Shorthand Method.

SYLVIA D. TREVINO, CSR (361) 364-6200 2

/ I \

1 THE COURT: Mr. Gilmore, how are you today?

2 MR. GILMORE: I'm doing just fine, Judge.

3 THE COURT: You're here today -- Let's see.

4 You're on State versus Chadrick B. Pate. And what do we got

5 going on, Counsel? What are your announcements in that case?

6 State has filed a motions for continuance, I believe?

7 MS. RODRIGUEZ: That's correct.

8 MR. GILMORE: We don't oppose it, Judge. We're

9 going to -- Mr. Pate -- during the hurricane, Mr. Pate was

10 taking extensive attorney/client notes prior to the hurricane.

11 When they were evacuated, he was instructed to put his notes

12 in plastic garbage bags and when he got back from the ( ~ 13 evacuation, his notes were thrown out. Got that from Ricky

14 McLester, Chief Deputy.

15 THE COURT: Threw all the plastic bags out?

16 MR. GILMORE: No. Just two people. Everybody

,17 got their stuff back except for two people. So all of his

18 discovery is gone and all of'his attorney/client notes are

19 gone.

20 THE COURT: So he's not opposing a continuance

21 because he needs to get back to square one?

22 MR. GILMORE: Yeah.

23 THE COURT: All right.

24 MR. GILMORE: I heard that you reset Ms.

( 25 Cochran-May's case to November the 3td.

SYLVIA D. TREVINO, CSR (361) 364-6200 3

( 1 THE COURT: Yes, sir.

2 MR. GILMORE: Which may be feasible, but I have

3 a federal jury trial set then and those things in Judge Head's

4 court, those things are known t·o fold. And last time I talked

5 to my client, he wanted tog~ to trial.

6 THE COURT: All right. Well then ~hat I'll do

7 is go ahead and set that on November 3rd, making a.note

8 subject to your availability.

9 MR. GILMORE: Probably need -- We also need a

10 decision -- I have a motion to sever, along with Ms.

11 Cochran-May and she's going to need a decision on that, too.

12 There's going to be maybe a new attorney on that case. ( 13 THE COURT: rhat's what I'm waiting to find

14 out. That's why I wanted to know~ because I'm going to have

15 to get a new attorney, going to need to get one pretty quick

16 and that new attorney is going to want a new-- We'll need a

17 pr~-trial to decide. Basically three of these cases are going

18 to be severed out anywa.y.

19 MR. GILMORE: We got a shooter and we got my

20 guy that wasn't there.

21 THE COURT: He wasn't there.

22 MR. GILMORE: He wasn't there. I know what ·,·

23 they're saying, but --

24 THE COURT: You ~in't going to figure out how. I 25 they're going to get there. That's the reason they call it an l,> .

SYLVIA D. TREVINO, CSR (361) 364-6200 4

1 allegation. All right. We are going to give you the same

2 thing. We will have a pre-trial set on that for about the 3rd

3 so we can look at severance at that time if see where we're

4 at. And make a note that that's subject to your federal

5 court.

6 (END OF PROCEEDINGS.)

11 12 ( '·· 13

SYLVIA D. TREVINO, CSR (361) 364-6200 IN THE COURT OF CRIMINAL APPEALS AUSTIN, TEXAS

EXHIBIT 6

ORDER ON MOTION FOR SEVERANCE 9/25/08 CAUSE NO. A-08-5058-4CR

THE STATE OF TEXAS * IN THE DISTRICT COURT

vs. * 36th JUDICIAL DISTRICT

CHADRICK PATE * ARANSAS COUNTY, TEXAS

ORDER~ BE IT REMEMBERED, that on the ;;6 day of ~ . ,2008,

came on to be considered and above and foregoing Motion of Defendant Chadrick Pate for

Severance of Defendants;

After consideration of the same, it is the opinion of the Court that Defendant's Motion be

GRANTEDIBI:fliHB. ~ SIGNED this ;1..5 day of ~· ,2008. IN THE COURT OF CRIMINAL APPEALS AUSTIN, TEXAS

EXIDBIT 7

AFFIDAVIT STACEY DEVILLE DISTRICT CLERK PAM HEARD'S STATEMENT ABOUT THE MOTION OF SEVERANCE ORDER SIGNED BY JUDGE MICHAEL WELLBORN 9/25/08 STATE OF TEXAS

COUNTY OF TRAVIS §

AFFIDAVIT

Before m~ the undersigned authority, on this day personally appeared Stacey Deville, who, being by me duly sworn, stated:

"My name is Stacey Deville. I am over the age of eighteen, of sound mind, capable of making this affidavit, and personally acquainted with the facts herein stated:

I was hired by·Nema Bardin to investigate the facts and circumstances associated with Chad Pate's conviction for the death ofAaron Watson. Below is the information I learned during the course of my investigation.

I called and spoke with Pam Heard, the district clerk for Aransas County (Ms. Heard was also the district clerk in 2008). While speaking with Ms. Heard she mentioned that there was no severance granted. I did not see or have a copy of the granted severance but had been informed by Attorney Carrie Crisp that a severance was in fact granted. I mentioned to Ms. Heard that there is reportedly paperwork :from Judge Wellborn stating that the severance was granted. She said that she did not know of any severance, but if there wa5 then it was "just a piece of paper" saying that it was granted but was not file stamped with their office, and thus was not granted.

I called and spoke with Juror Herlinda Maldonado. Ms. Maldonado repeatedly expressed · that she did not understand why Chad Pate was tried With Christopher Hall, the co- defendant MS. Maldonado told me that she thoUght that it was harmful to Chad's case that the two were tried together. Ms. Maldonado stated that. the jurors had- trouble deciphering which evidence and what witness' testimony applied to which defendant Ms. Maldonado stated that it was hard to hear what one did over the other and keep all of the evidence between them separate. According to Ms. Maldonado the jurors relied on the foreman of the jury to get "everything straightened out." She told me that she and the other jurors depended on the foreman to keep the evidence straight between the two defendants. Ms. Maldonado said that Pate should not have been tried with the co- defendant because it did not help Pate's case and was "guilt by association". She stated that Pate was prejudiced by the joint trial. It was the opinion of Ms. Maldonado that the Applicant's case was hurt by the fact that he was tried with the co-defendant. Juror Herlinda Maldonado also informed me that she (Ms. Maldonado) did observe applicant being brought into the court room in leg restraints. ·~.p (initials) According Ms. Maldonado, the jury was under the·mistaken impression that Pate bad to serve thirty-five years no matter what sentence the jury assessed. Instead of applying the jury charge issued by the court, the jurors decided. that "no matter what he would serve 35 years." According to Ms. Maldonado, the jury came to the conclusion "that no matter what he [Pate] would serve 35 years." Ms. Maldonado also stated that she did not think that Applicant should have been given the ninety-nine (99) year sentence. I asked her if she knew about the state's recommendation for 10 years or the fee, and she stated tha~ she had not heard of either of these. She was under the assumption that both penalties would keep him in prison for thirty-five years regardless if given life or·thirty-five years.

I spoke with Tracy Watson on multiple occasions during the course of the investigation. I was able to locate Tracy through her father's phone. She wa$ unable to talk some of the times I caUed, due to using her father's phone. When I was able to talk with Tracy, she infonned me that she doesn~t believe that Chad could have done this to Aaron. She stated that she doesn't believe Chad committed the murder, and that he may have been set up. She stated that she thought it was coincidental that her mother an~ her were both arrested and placed in jail the day that Aaron was killed. She stated that she believed Aaron was an informant for the police. She stated that there were times when Aaron would've been arrested for selling or distributing drugs but was never caught for the offense. She believes that he was working with the police and that is possibly why he was never caught for the drugs.

Tracy went on to mention that after the death of Aaron she spoke with a friend of hers, named Keith Kefauver, legal name Brian Keith Kefauver. Kefauver was reportedly speaking with Tracy regarding the death of her husband and mentioned to her that "one of them had to go," referring to Aaron Watson and Chad Pate. Tracy made it sound like this was referring to a set-up of Chad to take the fall for Aaron's death. Tracy mentioned that she asked him why she had not heard of this before and be said that she did not need to know this infonnation. Tracy asked Kefauver whose decision was it that one of them had to go and he did not answer.

Nema Bardin emailed me after my conversation with Tracy and asked if I was able to discuss with her the reduced sentence she received. I did not have this question listed and therefore was unable to ask her about this. I called her back and asked to speak with her regardmg this but she was unable to talk and asked that I not call her on this number anymore. I asked ifshe had another number that I could call her on to discuss this and the other questions I had for her, but she stated that she did not have another phone number. I have not heard from Tracy since this day and therefore was unable to ask this and the other pertinent questions in regards to this case.

I spoke with Lane DeRaven who was incarce1f11ed in the Aransas County Jail with Christopher Hall. DeRaven was cellmates with Christopher Hall, Chadrick Pate's ~ (initials) co-defendant. Hall reportedly confided in DeRaven about what happened in relation to the death of Aaron Watson. Hall said that he was called and informed by the others, not Pate, of the plans for dealing with the decedent. Hall reportedly stated to DeRaven that he had never met with Pate regarding the decedent and that Pate was not a part of the death of Aaron. Hall stated that Chad Pate was not present for or at any point involved in the planning or the commission of this offense.

I received a letter in the mail fiom Brian Brock, Chad Pate's family member. regarding the case. I ~ informed that Brian had inside information relating to the murder of Aaron. Brian wrote that he was willing to speak with me regarding the case, but had to be given a guarantee for his safety and the safety of his family. He mentioned his fear for his life and the life of his family•. and that if I/we could guarantee that all would be safe then he would provide insight into the case. I cannot verifY the legitimacy of Brian's letter due to the fact that two different handwriting styles were used to write the envelope and the letter. With that said,. I can attest to the fact that I did receive a letter from a reported Brian Brock who was in jail, and the postmarked letter came from the area code the jail was located in. As for if this was indeed Brian Brock writing this letter, or if the letter was in fact correct, I cannot say.

While reviewing the State's evidence for the case (Via copies provided), I noticed that the evidence collection time is not noted on the packaging. In my experience of working in this field, I have always written the date and time of collection. On most of the chain of custody tags, there is an area for the date and time of collection. In this case, I do not recall seeing the time collected written on the tagging. When I was working in the field, it was our departmental policy to provide this information but this might not be proper departmental policy for this department.

While reviewing the evidence, I also noted that there was unknown DNA found underneath the victim's :fingemail(s). I noticed that the evidence was tested to the known suspect(s), but l did not recall seeing the evidence tested against the other potential parties. Unless the evidence has been further. tested, or there is an updated report of the DNA that I have not received, then some of the DNA underneath his fingemail(s) is still unknown.

Throughout my investigation, I got in touch with many of the parties involved who were and were not contacted. ·I also contacted the jurors in the case. Most of the people I attempted to contact did not want to get involved or would not return my calls. I was told by Tracy Watson that she was fearful of her safety after Aaron's death, and as well by Brian Brock (in his letter) that he feared for his safety and the safety of his family if he was to disclose infonnation on this case. It appeared that people were afraid to talk due to the nature of the crime, and the parties affiliations with the Aryan Circle. <;:D (initials) To note,~ of this date I have not been n:questecl_-~,provide copies of my case mateJ:ial.or any other:material ,. • '""'~.:t.· to Nema Bardin. 1 bliie . any_&Dd~.copies • . ...,,_.. _ • of reports and biformaiion . readily.a~able but bave not been teqUeSted Jo seild-~ to ~e client. If any material is ~ bj. the.client, and/or the CC)Urt(s), I~ pro"Vid~ these when requested. ·

·i I

.' 'i j

So .(Initial) ·..·.

'· I DECLARE UNDER PENALTY OF PERJURY THAT TilE FOREGOING IS TRUE AND CORRECT,."

SIGNED this ~y of l,).::_c_ .~ .:lo{2. X ~t. c.._---.-~ Affiant, Stacey Deville

SUBSCRIBED AND SWOR~TO BEF ME by the said CS4 O..C:tJ \:);N, \ \(D_n this the ;;l \"\'day of~~l5::!!lO~L~o \ (_ IN THE COURT OF CRIMINAL APPEALS AUSTIN, TEXAS

EXHIBIT 8

10/23/08 REF•ORTERS RECORD VOLUME 4 OF 11 PRE TRIAL HEARING CHRISTOPHER HALL A-08-5080-2CR ~ e-x t• ,.. ¢~ :2 75-0i ~ Scanned Jan 26, 2012 Pretrial Hearing 10-23-08

1 REPORTER I s RECORD VOLUME LJ OF _11__ VOLUMES 2 TRIAL COURT CAUSE NO. A-08-5080-2CR

5 THE STATE OF TEXAS ) IN THE DIS~CT COURT ) 6 vs. ) ARANSAS COUNTY, TEXAS ) 7 CHRISTOPHER JOSEPH HALL ) ) 36TH JUDICIAL oi~'MI'Veo IN 8 COURT OF CRIMINAL APPEALS 9 AUG 1 o 2011 10

11 - louise Pearson, Clerk 12 PRETRIAL HEARING ,~

··' 13 14 15

16 - Original produced on March 11. 2009 -

17 18

20 On the 23rd day of October, 2008, the following

21 proceedings came on to be held in the above-titled and

22 numbered cause before the Honorable Joel B. Johnson, ,Judge

23 Presiding, held in Rockport, Aransas County, Texas.

24 Proceedings reported by computerized stenotype machine.

l ~---_j LISA TUCKER RILEY, CSR, RPR

II Scanned Jan 26, 2012 ..... L-

Pretrial Hearing 10-23-08

_,. 1 APPEARANCES

2 3 MR. MARCELINO RODRIGUEZ SBOT NO. 00797336 4 Assistant District Attorney P.O. Box 1393 5 Sinton, Texas 78387 Telephone: 361-364-6220 6 Attorney for the State

8 MR. PATRICK L. FLANIGAN SBOT NO. 07109600 9 District Attorney P.O. Box 1393 10 Sinton, Texas 78387 Telephone: 361-364-6220 11 Attorney for the State

12 13 MR. STANLEY A. TURPEN SBOT NO. 20344300 14 Attorney at Law P.O. Box 1209 15 Portland, Texas 78374 Telephone: 361-643-6422 16 Attorney for the Defendant

17 18 M1\. JOHN s. GILMORE I JR. SBOT NO. 07958500 19 Attorney at Law 622 S. Tancahua 20 Corpus Christi, Texas 78401 Telephone: 361-882-4378 21 Attorney :for the Co-Defendant Pate

23 24

25 L _j ----------~-~---~---·-----~-~----------------'---~--

LISA TUCKER RILEY, CSR, RPR Scanned Jan 26, 2012 Pretrial Hearing 10-23-08

., P R 0 C E E D I N G S .!.

2 (Defendant present)

3 THE COURT: Christopher Hall, Mr. Turpen. Stan, you just got re-appointed as a result of Ms. Cochran-May's employment in the county attorney's office. MR. TURPEN: That's correct, Judge. THE COURT: You need a reset? MR. TURPEN: Big time.

THE COURT: Okay. MR. TURPEN: I have talked to him for about an hour-and-a-half and talked to Tamara a little bit; talked to Marcelino a little bit but that is about it. THE COURT: Okay. The next round of jury trials

after this -- DEPUTY CLERK: December the 3rd -- or December ~~

the 1st. 1 .l• 7 THE COURT: Will you be ready by December you 18 think, or no?

19 MR. TURPEN: Judge, I'm -- or that week I'm 20 going to tell you that to be honest with you I don't think I

21 could be ready by then. THE COURT: Okay. January the 5th will be the ·~

trial date. 2.4 MR. TURPEN: Thank you, Judge. That was more or

less what I had mentioned to Marcelino. I figured January I

------=· -~·=·-·---=~-------·-·-·----·-~~~-

~·~~~-·' Scanned Jan 26, 2012 4 Pretrial Hearing 10-23-08

should be able to be up for it. DEPUTY CLERK: Announcement?

THE COURT: At 9:00 o'clock -- hang on. That is

going to be tricky. It looks like the announcement docket

\-lill be D•::cember the 30th. --~

6 Now, guys, I am remissed to tell you whether 7 that would be an afternoon or a morning.

8 DEPUTY CLERK: So far our list says 1:30 still.

9 THE COURT: That is what your list says?

10 DEPUTY CLERK: So far.

1.1 THE COURT: Then that is what I'm going to tell

12 you. 13 MR. TURPEN: Judge, can I fax in my announcement

14 on that?

15 THE COURT: On a murder case?

16 MR. TURPEN: I'm off the week after Christmas.

17 THE COURT: You can't be off the week that I 18 have got you. I want to set you for trial the first time and

19 then be off the next week when you 20 MR. TURPEN: Well, I have put my announcement in

21 for vacation. I do it every year. And the week after

22 Thanksgiving I go hunting. The week after Christmas I do what

23 I can do. 24 THE COURT: This is not the week after

25 Christmas -- well the 30th I guess is.

W. LISA TUCKER RILEY, CSR, RPR ' . Scanned Jan 26, 2012 P.r·e t r _ia .L Fif::a .r.ing .l 0--2.3 ·-()8

l MR. TURPEN: I think it i:;.

2 THE COURT: Okay. Can you h2ve an annoc.mcemenc:

-~ the week before Christmas on December the 22nd? ,? ...... ,- 4 MR. TURPEN: Okay. DEPUTY CLERK: At 1:30? The clerk is going to

get the blame. MR. RODRIGUEZ: 9:00 o'clock is good. THE COURT: I mean one announcement docket on -::--=:- ~ -- one case, it should be 9:00 o'clock. That is what I'm --::::::- "'"" -----------... 10 thinking. MR. FLANIGAN: I would say for-- if we'll do

~2 stuff on the 30th, let's do it at 9:00 o'clock as well.

THE COURT: Well, you'Ll not do anything on the

14 30th. I'm not doing anything ~n the 30th right now.

MR. FLANIGAN: Okay. MR. GILMORE: Judge, I have a codefendant in

this case. 18

19 as well.

20 C[:ts THE COURT:

November i..,rhen I come over here . I know 1 but we'll try your case in

.22 MR. GILMORE: We' ll ·cry me·:

23 THE COURT: You're my numbe:::- one prioritv :i.n

24 life, John.

L ' '

Scanned Jan 26, 2012 6 Pretl:JaJ. HeaTing .l 0-·2 3--03

1 MR. RODRIGUEZ: Got to be number one with 2 somebody. 3 THE COURT: Somebody has got to be number one. 4 DEPUTY CLERK: Pretrial?

5 THE COURT: A pretrial. How many pretrials have 6 already been conducted in this case? 7 DEPUTY CLERK: Everyone has been passed. We 8 really haven't addressed anything yet. 9 ~m. FLANIGAN: We have one pretrial, Judge, 10 where, like, the discovery motions and all the non-evidentiary 11 motions were agreed to, but there have been no evidentiary 12 trial. THE COURT: The 25th of November ··- no, that is 14 the week before Thanksgiving. That is when you leave off the week afte.r-. MR. TURPEN: I'm leaving the week after Thanksgiving. This is the week before. THE COURT: All right. The 25th at ~----=~ 9:00 o'clock. ~

0 MR. TURPEN: THE COURT: At 9:00 o'clock. And what that does is it has you appearing before the trial judge for your pretrial, for your . -- ·:..·..:..: -~-,----~-_...--

announcement and for your jury trial. You stay hooked up with ·---=~. ,.. ..:.----;;;;;:::::::.-==·= " - ' - - - -

24 where the case is set. . -------~---------------~----

25 All right?

L~~---- LISA TUCKER RILEY, CSR, RP~ .. Scanned Jan 26, 2012 7 Pretrial Hearing 10-23-08

1 MR. TURPEN: Sounds good, Judge.

THE COURT: Done.

3 (End of proceedings)

1.1

l3

L7

19 20 ') 1 :;:. . .J.

* * 25 L __ LTSA TUCKSR RILEY, CSR. RPR ' . . '

Scanned Jan 26, 2012 8

1 STATE OF TEXAS

2 COUNTY OF ARANSAS

3 I, LISA TUCKER RILEY, Official Deputy Court Reporter 4 in and for the 156th District Court of Aransas, State of 5 Texas, do hereby certify that the above and foregoing contains

6 a true and correct transcription of all portions of evidence

7 and other proceedings requested in writing by counsel for the

8 parties to be included in this volume of the Reporter's Record 9 in the above-styled and numbered cause, all of which occurred 10 in open court or in chambers and were reported by me. 11. I further certify that this Reporter's Record of the

12 proceedings truly and correctly reflects the exhibits, if any,

13 offered by the respective parties.

14 I further certify that the total cost for the

15 preparation of this Reporter's Record is $44.00 and will be

16 paid in full by Aransas County.

17 WITNESS MY OFFICIP~ HAND on this, the 11th day of March, 18 2009. l. _j) . . .----- 19 20 ~(~)~2) LISA TUCKER lULEY, CSR I R 21 Texas CSR #3895 Official Deputy Court Reporter 22 P.O. Box 700 Sinton, Texas 78387 23 Telephone: 361-364-9320 Expiration: 12-31-2010 24

LISA TOCKER RILEY, CSR, RPR IN THE COURT OF CRIMINAL APPEALS AUSTIN, TEXAS

EXHIBIT 9

JUDGE WEJLLBORN'S LETTER TO CARRIE CRISP APPLICANT'S HABEAS ATTORNEY '. EJ( ttq '"'

* .·~~·~tfi''o;;·li;.. .'

·={Ill~'P' (. ~~ :'10"''

(It' .:.

····.::... ::"......:...... MICHAEL E. WELBORN District Judge 36th Judicial District P.O. Box 700 Sinton, Texas 78387-1303 COUNTIES: Aransas Bee Live Oak McMullen San Patricio 361/364-9310 Fax: (361) 364-9410

October 5, 2012

The Law Office of Carrie Crisp 109 E. Hopkins, Suite 206 San Marcos, Texas 78666

RE: The State of Texas v. Chadrick B. Pate, Cause A-08-5080-4-CR. In the 361h Judicial District Court of Aransas County, Texas.

Dear Counsel,

First, I apologize for not getting you a response on a more timely basis. I did have to do some research to determine the correct answers to some of your questions.

The Judges for the 36'\ 1561h and 343rct District Courts have concurrent jurisdiction in five ditierent counties and the jurisdiction to generally exchange benches. The three Judges rotate from county to county on a set schedule and all criminal matters are set on available days without .regard to which presiding Judge will be setting. In the matter involving Mr. Pate, it was my scheduled date to handle all criminal pre-trial matters in Aransas County. (All criminal cases are scheduled for pre-trial, announcement and jury trial at the docket call of all new indictments according to the published calendar for the three district judges.) Regarding Mr. Pates case, research shows that I did preside over the pretrial matters that involved multiple defendants in the same criminal indictment. The docket reflects that the Court was considering a motion to sever, however the issue became moot when it was announced that it appeared one or more ofthe defendant's were going to waive their right to a jury trial in the pending matter. Counsel for the State, did move tor a continuance on the active trial setting. Both State and Defendant agreed that said matter should be continued. I granted the State's Motion to Continue at the hearing on September 25, 2008. There were multiple orders presented and in the clerk's file at that time. The order presented to me at the hearing on September 25, 2008 was incorrect, as they presented the order on the motion to sever and not the order on the motion to continue. The order on the severance was signed by me in error on that date. The Court and the Clerk's office discovered the error before the order was formally filed (that same day) in the paper's of this cause. This is why the Order in question had not been file stamped. Mr. Gilmore attorney for Mr. Pate filed the Motion for Severance that was scheduled for hearing on September 25, 2008. Normally any order granting a motion is file stamped by the District Clerk's office after it is granted and signed by the Judge. This order was not file stamped because it was quickly determined that the wrong order was handed to the Judge for signing. • "'

If you have additional questions, please do not hesitate to call or write. I do respond to appropriate email iftime is ofthe essence. (Email: welbornme@aol.com.)

Respectfully,

d£~-- Mictlel ~. Welborn. Judge Presiding 361h District Court. -· .;. \.J'

EXHIBIT 10

CARRIE CRISP LETTER TO JUDGE WELLBORN \.. \ . . ,; .

. :".:_·.;:.··.

"<. . . . . . . . . .• •• ; •,

- .. ·. ' - . .. :-~. . ... ·... · ,: -

September 17,2012 The mlonorable Michael Welborn Judg•e 36th District Court P. 0. Box 700 Sinton, TX 78387

Viafiucimilie to 361-364-9410

IN RF:: case The State q{Texas v. Chadrick B. Pate, Cause No. A-08-5080-4-CR (HCl) in the 36th Judicial District Court for Aransas County, Writ no. WR-78, 165-01 in the Courtt of Criminal Appeals.

Dear Judge Welborn,

My name is Carrie Crisp and I am Chadrick Pate's habeas counsel. In June of 2012,, I filed an application for a writ of habeas corpus on behalf of Mr. Pate, challenging both :his murder conviction and the sentence for that conviction. One of the claims for ~;:eU.ef is the denial of due. ~n:oc.ess. becaJJ.se Me Pate was tried with the co-defendant~ Mr. Christopher Joseph Hall.

During my pre-writ imY:stigati

I am not familiar with practice in Aransas County and was hoping you could shed some light on this situation. I called your office and spoke with Sylvia who informed me that $~~e thought it would be best if1 $ent a Jetter with my questions and the paperwork from the case. •

My \'f~t\on~ ate·. How d\d the ~:a~e ~~ \n ft~nt ~f 'joo'? 1'2> th\'2. a oorma~ situation? Did you sign the order granting the motion to sever? If so, why did you grant the severance? Who approached you with the motion for severance? Where did the order I, .'

EXHIBIT 11 10/23/08 REPORTERS RECORD VOLUME 3 OF 9 CHADRICK PATE MOTION TO DISMISS A-08-5080-4CR REtORTER Is ~ORD VOLUME ~ OF ~ VOLUMES TRIAL COURT CAUSE NO. A-08-5080-4CR

5 THE STATE OF TEXAS ) IN THE DISTRICT COURT ) 6 ) ARANSAS COUNTY, TEXAS ) ) ) 36TH JUDICIAL DISTRICT

Fl L E 0 IN THE 13TH COURT OF APPEALS CORPUS CHRISTl

JUN'IO 2009

{) 12 MOTION TO DISMISS9y , . ·. r ' . DORIAN E. RAMIREZ CLERK' ·~

DELIVERED JUN i 0 2009 17 13th COURT OF APPEALS .. 18

19 ORIGINAL 20 On the 23rd day of October, 2008, the following 21 proceedings came on to be held in the above~titled and 22 numbered cause before the Honorable Joel B. Johnson, J~dge

23 Presiding, held in Rockport, Aransas County, Texas. 24 Proceedings reported by computerized stenotype machine ..

t J 25

LISA TUCKER RILE~~ 6SR~ RPR Case.4:13-cv-00709 Document 5-17 Filed in TXSD on 05/17/13 Rage 2 of 36 2 Motion to Dismiss lD-23-08 J .

•• 1 APPEARANCES

2 3 MR.. MARCELINO RODRIGUEZ SBOT NO. 00797336 4 As~istant Di~trict Attorney P.O. Box 1393 5 Sinton, Texas 783a7 Telephone: 361-364-6220 6 Attorney for the State

8 . MR. JOHN S. GILMORE, JR. 9 SBOT NO. 07958500 Attorney at Law 10 622 S. Tancahua Corpus Christi, Texas 78401 11 Telephone: 361-882-4378 Attorney for the Defendant 12

...

LISA TUCKER RILEY, CSR, RPR .. Case 4:13-cv-00709. Document 5-17 Filed in TXSD on·OS/17/13 Page 3 of 36 . 3 Motion to Dismiss 10-23-08

1 MOTION TO DISMISS

2 10-23-08 PAGE VOL. 3

4 DEFENDANT' S EVIDENCE

5 Chadrick B. Pate Direct Cross V.D:ire By Mr. Gilmore 5 v1 6 By Mr. Rodriguez 14 v1

7 STATE'S EVIDENCE 8 Bryctnt Ol::son Direct cro::;::; V.Dir:e 9 By Mr. Rodriguez 17 v1 By Mr. Gilmore 24 v1 10

11 Defense's Argument ..... ., ...................•....... 31 1 12 State's Argument ......._·' .....•........... ·...... , ...· ... 32 1 13 Court's Ruling ................. , . . . . . . . . . . , ....... , 33 1 14 Reporter's Certificate , ...•...•...........••...•.• 35 1 15

LISA TUCKER RILEY, CSR, RPR Case 4:13-cv-00709 Document 5-17 Filed in TXSD on 05/17/13 Pag~ 4 of 36 4 Motion to Dismiss 10-23-08

1 ALPHABETICAL INDEX OF WITNESSES

2 Direct Cross V.Dire

3 Olson, Bryant 17 vl 24 v1 Pate, Chadrick B~ 5 v1 14 vl 4

LISA TUCKER RILEY, CSR, RPR Case 4:13-cv-00709 Document 5-17 Filed in.TXSD on 05/17/:1,3 Page 33 of 36 33. Motion to Dismiss 10-23-08

1 direct evidence that these documents were intentionally

2 destroyed or taken away from your client there will be #

3 immediate relief for you and immediate bad news for someone q;

4 else.

5 MR. GILMORE: Yes, sir.

6 THE COURT: Your motion is denied at this time.

7 MR. GILMORE: Yes, your Honor.

8 Just for scheduling,~ Judge, I know you're

9 getting ready to take a recess, but I think we're set for

10 THE COURT: November the 3rd. ~-------------------------------~ 11 MR. GILMORE: -- November the 3rd. And I talked ~ 12 to Mr. Rodriguez. I'm not sure that they have got everything

13 ready that they need to have done, Judge.

14 MR. RODRIGUEZ: We're still waiting on some

15 reports by a dive team that collected the weapon, your Honor,

16 and we're getting further evaluation done on the handgun that

17 was collected from the dive team. It's a matter of doing a

18 report. The testing has already been done.

19 MR. GILMORE: Are you going to be the trial

20 Judge or --

21 THE COURT: Yes. Yes.

22 MR. GILMORE: Are you going to be here for

23 docket call? My only problem going to trial or other than

24 I don't have everything that they have got so far, but I have

25 a federal case that may go to trial in Judge Head's court. My

LISA TUCKER RILEY, CSR, RPR Case 4:13-cv-00709. Document 5-17. Filed in TXSD on 05/17/13 Page 34 of 36 34 Motion to Dismiss 10-23-08

1 client is kind of vacillating: He doesn't know what he is

2 going to do yet, so I haven't filed a motion for continuance.

3 I'll know next week what he is going to do, but I just like to

4 inform the Court of that.

5 THE COURT: What are y'all ready to try on

6 November the 3rd?

7 MR. RODRIGUEZ: An attempted capital

8 murder/sexual as~ault/injury to a child.

9 THE COURT: And the lawyers are ready?

10 MR. FLANIGAN: I think the primary case would be

11 the attempted capital murder. Mr. Wimberly, that is

12 Mr. Teague is defending on this case.

13 THE COURT: All right. Mr. Teague, and you

14 understand him to be ready?

15 MR. FLANIGAN: I believe he is going to -be

16 ready.

17 THE COURT: Well, I think I'm going to leave it

18 to the judge who hears the announcement docket.

19 MR. GILMORE: Okay. Judge, that is fine. I

20 jusl wanted Lo let y'all know we may have a problem.

21 THE COURT: I have been trying to get all of

22 Mr. Pate's cases off the docket as quick1y as ~ can, John. I

23 have got one off that nobody wanted to try, and it would be my

24 pleasure to take another one off the docket that nobody wants

25 to try . . ~".

LISA TUCKER RILEY, CSR, RPR Case 4:13-cv-00709 Document 5-17 Filed inTXSD on 05/17/13 Page 35 of 36 35 Motion to Dismiss 10-23-08

1 MR. GILMORE: Okay, Judge.

2 (End of proceedings)

11 * * * 12

15 16

25 ·.. .~

..

LISA TUCKER RILEY, CSR, RPR Case 4:13-cv-00709 Document 5-17 Filed in TXSD on 05/17/13 Page 36.of 36 36 .

.. 2 COUNTY OF ARANSAS

3 I, LISA TUCKER RILEY, Official Deputy.Court Reporter

4 in and for the 156th District Court of Aransas, State of

5 Texas, do hereby certify that the above and foregoing contains

6 a true and correct transcription of all portions of evidence

7 and other proceedings req~ested in writing by counsel for the

8 parties to .be included in this volume of the Reporter's Record

9 in the above-styled and numbered cause, all of which occurred

10 in open court or in chambers and were reported by me.

11 I further certify that this Reporter's Record of the

12 proceedings truly and correctly reflects the exhibits, if any,

13 offered by the ~espective parties.

15 preparation of this Reporter's Record is $163.00 and will be

17 WITNESS MY OFFICIAL HAND on this, the 11th day of March,

18 2009. ...... 19

20 LISA TUCKER RILEY, CSR, 21 Texas CSR #3895 Official Deputy Court Reporte' 22 P.O. Box 700 Sinton, Texas 78387 23 Telephone: 361-364-9320 Expiration: 12-31-2010 24

LISA TUCKER RILEY, CSR, RPR IN THE COURT OF CRIMINAL APPEALS AUSTIN, TEXAS

EXHIBIT 12

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COVER SHEET EXHIBIT 13

11/25/08 REF'ORTERS RECORD VOLUME 5 OF 11 PRE TRIAL HEARING CHRISTOPHER HALL A-08-5080-2CR £'(.. *~ l/4, .21S-o..J ~ Scanned Jan 26, 2012 Pretrial Hearing 11-25-08

1 REPORTER'S RECORD VOLUME 5 OF II VOLUMES 2 TRIAL C~ CADSE NO. A-08-5080-2CR

5 THE STATE OF TEXAS ) IN TBE DIS'l'lUC'l' COURT ) 6 VS- ) ARANSAS COUNTY, TEXAS ) JOSEPH BALL ) ) 36TH JUDICIAL DISTRICT RECEIVED IN COURT OF CRIMINAL APPEALS

AUG 10 2011

Lowse pearson, Clerk

- Or~g~nal produced on March 11, 2009-

19 20 On the 25th day of November, 2008, the £allowing 21 proceedings came on to be held in the above-titled and

22 numbered cause before the Honorable Michael Welborn, Judge

25 ~·.:~\~f' !

Scanned Jan 26, 2012 Pretrial Hearing 11-25-08

1 APPEARANCES

3 MR. MARCELINO RODRIGUEZ SBOT NO. 00797336 4 Assistant District Attorney P.O. Box 1393 5 Sinton, Texas 78387 Telephone: 361-364-6220 6 At:"l:o.rney for t;he St:at:e

MR. STANLEY A. TURPEN 9 SBOT NO. 20344300 · Attorney at Law 10 P.O. Box 1209 Portland, Texas 78374 11 Telephone: 361-643-6422 Attorney for t:be De£enc:fant 12 13 14

15 ~ ~~ ~ 16

20 ,...,., .:.::.. J.. ~ , "N ~d-'1·" D . 22

25 L_ J Scanned Jan 26, 2012

PROCEEDINGS

(Defendant present) THE COURT: Good morning, Mr. Turpen. MR. RODRIGUEZ: I'll get the file, your Honor,

if we can go through it.

THE COURT: Which file? MR. RODRIGUEZ: Mr. Hall's.

MR. TURPEN: Judge, for the record, I have talked with the State, and I have also talked to Mr. Gilmore.

has the Codefendant Pate. I represent Mr. Hall.

THE COURT: Okay.

MR. TURPEN: And Tamara Cochran-May represented

him before I was, and there was a motion to sever that was

filed, and they were going to not go forward on that motion.

I have talked to my client and he in agreement.

~ I have also checked with Mr. Gilmore, and it's

my understanding he is in agreement with that, too, unless his client tells him something different. That was my

understanding.

THE COURT: Who is the codefendant?

MR. TURPEN: Pate is the last name.

THE COURT: Pate.

MR. RODRIGUEZ: Chadwick.

MR. TURPEN: Chad --

L.~ MR. RODRIGUE_z_:_C_h_a_d_r_i_c_k_. -~-~--· ---···------J .;._ ,,, . -~ ''i' ·:: •' . . .···• ·: :.: Scanned Jan 26, 2012 4 E':.:·_--(2.-ti i.a . .{ flea r inq 1.1--25 ---:~8

.,J. THE COURT: When is that one scheduled

t:;:ia.l?

MR. TURPEN: Right now January the 5th z:::z;:: :;:::::a -:::- THE COf.lRT: Okay. ·-~ Well, ~-- both cases on-~ the same ~ ---------- ~r1ai doc~et at this time? MR. RODRIGUEZ: Yes, your Honor.

THE COURT: Okay. Well, it's kind of hard to

::ry the~~~ the same time if it's not on the same docket. MR. TURPEN: I understand, Judge.

THE COURT: Minor technicality.

- ---- DEPUTY CLERK:

supposed to be here on the 5th.

the 9th. -= And also Mr. Gilmore is not

He will be on vacation till

14 ~ 1WE COURT: Yeah, supposed to be.

.MR. RODRIGUEZ: Your Honoi:, may we approach

17 THE COURT: On what, Hall? Did you bring my 18 file back in? I was going to say, no, you can't, because I

19 don't have a file.

MR. RODRIGUEZ: We have reached an agreement on

?l r:::cet.ty mu:.:::::-1 all th~ motions, your Honor.

22 MR. TURPEN: That's correct. ..... --~ L •. J MR. RODRIGUEZ: We went ahead and marked the

24 GlSCOVPry reotion.

25 TFl E c:f:Jf)_t-: 'T; ·_;}_]_

liSA TUCKER RILEY, CSR,· R?R Scanned Jan 26, 2012 .~:..,-:_··-:::: t :"":.·.?.a] li£;.a :.::-.1 n~J 3] -··25·-·l!/3

1 that you have filed, Mr. Turpen?

MR. TURPEN: They are, Judge. I went ahead and

just refiled all the pretrial motions. The only one I was

going t'o carry over from Tamara's was the motion to sever. I

don't think •l'fe' re going to use them. ..- {; THE COURT: All right. Well, we have got the --

all right. You've got an order on discovery here?

Ml~. TURPEN: Yes.

T:CJE COURT: It looks like it has got some pen-

10 and-ink changes on it. This particular order, is that the

Il one? "': ,..., .1. 1:. ~ffi. TURPEN: Yes, sir. THE COURT: Y' all are agreeing t:hat this order

14 should be entered; is that correct?

MR. RODRIGUEZ: Yes, your Honor. "', .i. 0 .. THE COURT: By t.he agreement of counsel then the

! .1 order shall be entered on discovery. .1 8 MR. 1.'URPEN: Thank you, Judge .

THE COURT: Motion in limine we • 11 t.ake up I

20 guess at time of hearing.

MR. RODRIGUEZ: Yes, Your Honor.

'J2 THE COURT: I'm looking at the different orders ~~ here that are contained. There is a motion for severance, and 24 I believe that has been withdrawn; is that correct?

I MR. RODRIGUEZ: ------ That's correct, your Honor. ------

~------· ---------------------·------------=~~-~ Scanned Jan 26~ 2012 6 Pretrial Hearing 11-25-08

THE COURT: Is that correct? MR. TURPEN: Judge, what I would like to do on that is leave it in the file just in case we need it because I did talk to Gi.lmore. Gilmore says he didn't see any reason to sever unless his client talks otherwise, but I haven't talked back with him to know that, and 1 don't think he has a motion 7 in the file. TliE COURT: All right.. Then no ruling on the :::· motion to sever. ~ MR. TURPEN: Thank you, Judge. THE COURT: Motion to inspect and examine and 12 test physical evidence. MR. RODRIGUEZ: Not a problem, your Honor. THE COURT: Granted. ., ;::.:, MR. RODRIGUEZ: The only stipulation is that is :.6 {j\·~::r~r;; tJy appointment and ""Je have somebody there ·to lay it out

1'1R. TURPEN: At the sheriff's office.

THE COURT: You'll just need to make an

MR. TURPEN: Okay. THE COURT: Motion to require State to reveal In other words, that is the deal. This is the

MR. RODRIGUEZ; The codefendants, and that's ~ ---::::;;:::::: = Scanned Jan 26_, 2012 7 Fr+.:::tr_ial FJ.ea r.ir1~;r 1.1 --·25-().3

basically a public record now since they went ahead and ~ .-------= 2 entered their pleas. ,--------- -~

:1 MR. TURPl}_!!;) I have been told they have -- they

5 have it: in each one of their files.

me. ,__- - That is sufficient for

He said ir:. was the same dea.l for each codefendant; is

6 that correct?

MR. RODRIGUEZ: Yes. Each one received the same

8 plea offer. c) THE COURT: So basically no object.ion to it.

10 It's granted, and I would just simply indicate see

11 codefendants' plea bargains.

MR. TURPEN: Yes, sir. THB COURT: And they are a public record.

14 MR. RODRIGUEZ: . ====--- Just a 1.Yaiting sentencing at ~

point. r:==- ,5'C ~~u:Rp-;;:p .· ----=.,_.___,=- ~MR. TL """" I understand. 'l'HE COUR1': This is one of the group that I J ~~ accepted the pl·za bargain on?

MI?.. RODRIGUEZ: That's correct, your Honor.

20 THE COURT: That we're waiting to get sentenced. :?'I

22 - Okay.

lJ co refrain from racial discrimination in the exercise of

24 peremptory s~~ikes?

It's kind of like thac

LISA T~CKER R1l£Y, CSR, RP? Scanned Jan 26, 2012 8 P.r:et1.-ial iiea:rir:tq .I.I--~?5--08

1 preemptive Batson.

2 THE COURT: I don't think

3 MR. RODRIGUEZ: I -- THE COURT: the Court needs to grant any

5 motion in that regards. That is the law.

6 MR. TURPEN: I understand, Judge. I have talked

7 to the State about it, but this case involves or at least the

8 allegations are that Mr. Hall is involved with a gang that is

9 probably ~~own for racial epithets and things that I just 10 wanted to preclude that from even coming up.

11 THE COURT: That's a Batson.

12 MR. TURPEN: Here in Rockport I don't think it 13 will any w~y.

14 THE COURT: That is a Batson issue at time of

15 trial.

16 MR. TURPEN: Yes, sir.

17 THE COURT: And the State will always be 18 instructed not to do that. I'm going to grant the motion.

19 MR. TURPEN: I understand, Judge. 20 THE COURT: Although I don't think it's

21 necessary, and you'll be ordered not to do that.

22 MR. RODRIGUEZ: Yes, your Honor.

23 THE COURT: And they'll --

24 ~~- RODRIGUEZ: And I'll refrain from doing 25 _j Scanned Jan 26! 2012 9

1 THE COURT: Motion for inspection of premises.

2 t'l.fR. TURPEN: It's a trailer and a yard in

3 between. 4 MR. RODRIGUEZ: The only problem we have with

5 that, your Honor, is I'm not sure who has the premises now.

6 It was a trailer. I'm not even sure it's still there. At one

7 time it belonged to the mother of the victim. Of course, the

8 victim is now, of course, deceased. The mother that was

9 living there is in custody, and the children are with CPS. So

10 there are basically -- unless someone else moved in. I don't

11 know who controls the premises. I told Mr. Turpen that I'll

12 try to find out who has it and make it available to him if I

13 can.

14 MR. TURPEN: I'm not asking that the defendant

15 be present. l • m just for my personal vie•Npoint.

16 THE COURT: I understand that. l have but one

11 question in that particular matter, and I think the issue will 18 always remain is is the premises under the control of the

19 State, and the answer is, no, it.'s not, is

20 MR. RODRIGUEZ: No.

21 THE COURT: I don't know how the State -- I can

22 order the State to allow you to attend the premises when they

23 don't have control of the premises.

24 P.fR. TURPEN: I understand. I guess we have an

25 agreement I think between us to find out who has control and

_j I;

Scanned Jan 26, 2012 10

1 try to set something up •.vhere I can go out there and look at

2 it.

.3 I'IJR. RODRIGUE'Z; I will make an effort to assist

4 him to get the information.

5 TP..E COURT: That.'s exactly what I'm putt.ing on

6 the order. I'm denying i t but State is to assist in viewing

7 of premises and not. to take any measures that would deprive

8 him of the ability to examine it.

9 MR. RODRIGUEZ; If anything I can get a floor

10 plan for him.

11 MR. TURPEN: That's fine.

12 MR. RODRIGUEZ; Tracy Watson who was living in

13 the residence is still here. I can prob~bly get a diagram

14 MR. TURPEN: Get a diagram of the yard.

15 MR. RODRIGUEZ: or something. That may be of

16 assis·c.ance to defense counsel.

17 THE COURT: All right. Assi.st as best you can 18 in that, and most irnpo:rta.ntly don't take any action that would

19 deprive him of the ability to examine the premises noting that

20 it's not controlled by the State.

21 The only other thing we have is a motion for

22 voir dire of expert witnesses. What is this?

23 .MR. TURPEN: Basically it's a Da1.1bert challenge.

24 I have talked to the State. What I'm going to do is ask the

25 I Court to hold it in abeyance until trial. I think I may be Scanned Jan 26, 2012 11

able to resolve it without having to have that type of

hearing. I have been informed by the State, number one, I

have got the expert's names. I can call them; review the ~ stuff with them, but also it's my understanding one of these

5 tests, the scent test. ~~- RODRIGUEZ: The scent lineup. MR. TURPEN: They are going to have one of these

9 supposedly in -- Ms. Cable is going to have one in Sinton on ;} the 15th or something like that, so I may be able to come up

THE COURT: I have heard about those things. Ivf.R. RODRIGUEZ: And I '11 provide him \vith

14 information, the curriculum vita of the expert that will do that..

THE COURT: Isn't the expert the dog? L ; MR. RODRIGUEZ: Well, the handler. THE COURT: I mean, if you want to voir dire a

!0 dog, feel free . .MR. RODRIGUEZ: The dog did have training, so I

/l guess there is a certification.

THE COURT: I mean, which one is the witness?

23 Which one is the expert witness? MR. TURPEN: The dog or the trainer?

THE COURT: The dog or the trainer? I think the

·~~~~~-------- ________I Scanned Jan 26, 2012 12 :?·rst.rial Hear.i.nq _I .l -· ?.!."i -0~?

l dcg is the wicness. I would be willing to grant thclt one to

2 see him voir dire a dog. I would like to watch that.

.:l ()kay . Yeah . t~el J ~ just ho1c1 t.·h.at off~ I think

4 I know w~ere you're going on that. r.; _, My understanding is cne

6 bloodhound is very truthful.

7 And 1 don't think that the defense

8 Ci voir dire an expert wi~ness. I think they are just putting

]Q

.l1 Yr:..Ji.l • ~~-e

... 1 :.?'

14 th~:: competency and ask the Court to make such a

det.-t~rrn.i na ti()i!

MR. 'I'UF'.FEN: u r,de.r stand . 1. =· 16 TF-IE: CO[!.F? T: even at the t1me of hearing. ,7 was going to try to do i~ outside .l

l e J9 it .

21 an issue that 1s qoinq to be in the t~ial of the case, it

22 would be best to do t~is ahead of time if we know that ic's

23 going to be an issue

24 I will.

l-~·~·-- Scanned Jan 26, 2012 .Fr\::: t ::~--i a J .flea r.i ng

l THE COURT: Okay. Anything else on your

2 pre·trials?

3 MR. TURPEN: That's all I have. Judge. THE COURT: All right. Well, very good. Those 5 orders will enter as reflected.

6 MR. TURPEN: Thank you, Judge. 7 Also I think all the other -- I have asked that 8 all the other motions that Ms. Tamara Cochran-May be filed, 9 have those be struck at this time, too, so there is no

1 'J confusion. THE COURT: Okay. 1:2 MR. TURPEN: I' rn not sure what she filed.

13 THE COURT: All right. MR. TURPEN: I just think it's cleaner to go • t-' forward Wl._n what I have got. l 6 THE COURT: You're going forward on your motions

-'-' only? ---[;7 MR. TURPEN: Right, except for the motion to

19 seV"er in case Mr. Gilmore comes back and says his client wants

to sever and needs to sever or something. We'll bring it -------···---·----- back.

4. nr:"'.eG.• l THE COURT: I think it's more than a want. or a think there has to be some purpose behind some

?4 speclr~c reason the case needs to be severed such as prior ?S c:rim.;_nai history or something of that nature.

LISA TUCKER RlLEY, CSR, R2R .. '

Scanned Jan 26, 2012 1s

1 fl~. TURPEN: Yes, sir.

2 THE COURT: All right. Very good.. Very good.

3 We'll see everybody on the next setting date,

4 whenever that may be.

5 MR. RODRIGUEZ: ~22nd.

6 THE COURT: Well, we'll see everybody on chat:

7 date. That's me.

8 (End of proceedings)

12 13

lB

22 * * 23

-~ -------------~=~--~-_____,__________j S!SA TUCKSR RILEY, CSR, FPR ...

Scanned Jan 26, 2012 16

3 I, LISA TUCKER RILEY, Official Deputy Court Reporter 4 in and for the 36th District Court of Aransas, State of Texas,

5 do hereby certify that the above and foregoing contains a true

6 and correct transcription of all portions of evidence and

7 ot.her proceedings requested in writing by counsel for the

8 parties to be included in this volume of the Reporter's Record

9 in the above-styled and numbered cause, all of which occurred

12 proceedings truly and correctly reflects the exhibits, if any,

14 I further certify that the total cost for the 15 preparation of this Reporter's Record is $78.00 and will be

16 paid in full by .i\ransas County.

17 WITNESS MY OFFICIAL HAND on this, the llth.day of March, 18 2009.

20 LISA TUCKER RILEY, CSR, R R 21 Texas CSR #3895 Official Deputy Court Repo• . ,r 22 P.O. Box 700 Sinton, Texas 78387 23 Telephone: 361-364-9320 Expiration: 12-31-2010 24

25 w LISA TUCKER RILEY, CSR, RPR IN THE COURT OF CRIMINAL APPEALS AUSTIN, TEXAS

EX PARTE: FROM THE THE DISTRICT COURT

EXHIBIT 14

2/5/09 REPORTERS RECORD VOLUME 5-A OF 11 PRE TRIAL HEARING CHRISTOPHER HALL S-08-5080-2 ' ,

Scanned Jan 26, 2012 Pretrial Hearing 2-5-09

,._,. .,_.!_ REPORTER I s RECOIU> VOLCME 5-A OF 11 VOLUMES 2 TRIAL ~ CAUSE NO. S-08-5080-2

5 THE STATE OF TEXAS ) :IN THE DISTRIC"l' COURT ) 6 vs. ) ARANSAS COUNTY, TEXAS ) 7 CHRISTOPHER JOSEPH HALL ) ) 36TH JUDICIAL DISTRICT 8 RECENEDIN 9 COURT OF CRIMINAL APPEALS

10 AUG 10 2011 11 LOUISe Pearson, Clerk 12 PRETRIAL BEAIUNG

19 ORJGJNAL 20 09, the following

21 proceedings came on to be the above-titled and 22 numbered cause before the e Janna ~- Whatley, Judge 23 Presiding, held in as County, Texas.

24 Proceedings stenotype machine.

. R RILEY I CSR, RPR ..

Scanned Jan26, 2012 Pretrial Hearing 2-5-09

'1t!Jrill' APPEARANCES 1

3 MR. PATRICK L. FLANIGAN SBOT NO. 07109600 4 District Attorney P.O. Box 1393 5 Sinton, Texas 78387 Telephone: 361-364-9390 6 A~cor.ney for tbe S~ace

8 MR. STANLEY A. TURPEN 9 SBOT NO. 20344300 Attorney at Law 10 P.O. Box 1209 Portland, Texas 78374 11 Telephone: 361-643-6422 A~torney £or t:.he Defendant: 12 13

14 MR. JOHN S. GILMORE, J"R. SBOT NO. 07958500 15 Attorney at Law 622 S. Tancahua 16 Corpus Christi, Texas 78401 Telephone: 361-882-4378 17 At:t:o.rney for t:he De£endant: Pate

19 20

21 22

L____~---· Scanned Jan 26, 2012 ~?.-rf.:~t.r.· J a .l ~:.·§:~a E·1. n~r 2···S-·D9

1 P R 0 C E E D I N G S

3 MR. FLANIGAN: I'm ready on Hall. I'm not happy

4 with a late-filed motion to suppress that we have in

5 Mr. Hall's case.

6 THE COURT: It's not set for pretrial.

7 What is your motion, Mr. Turpen?

8 14R. TURPEN: Judge, well, fi~st of all, I'm

9 ready for trial subject to I have carried over, with Judge

10 Welborn's permission, the Daubert challenge concerning the dog

11 patch sniff test. I have talked to Mr. Gilmore. We feel it's

12 probably a good idea to go ahead and go forward with that. I

13 have also --

14 THE COURT: I don't know how Jt1dge Welborn can

15 carry over an evidentiary hearing without checking with

16 everybody. Do yop-all know about that?

17 MR. TURPEN: The State's attorney was present 18 when he did that, Judge, at the last pretrial hearing. That's

19 when we went through it. My understanding at that point the 20 State wasn't ready to go forward with it that day; neither

21 were we. That is why

22 THE COURT: Carried to Lrial. It's not carried

23 to pretrial; carried to trial.

24 MR. TURPEN: Exactly. Carried to trial.

25 THE COURT: Oh, okay.

L ___ ----~-~---------~-_j . '

Scanned Jan 26, 2012 4 _P_r--t~t.r j_ aJ I-lea r i11.:;.r 2·-5--·0.9

1 MR. TURPEN: That's what I'm asking for is to

2 carry i t to trial. I don't think it will take that long. I

3 just -- I have talked to David Cano. David Cano told me that 4 you-all had one in Sinton, and evidently it was granted, so ...

5 THE COURT: Are you talking about as far as a_

6 Daubert challenge?

7 MR. TURPEN: There was another Daubert challenge

8 against the same witness and in Sinton.

9 THE COURT: Don't know r:othing about it.

10 MR. TURPEN: Honth and a half go.

ll MR. FLANIGAN: Judge Johnson heard that hearing ~ 12 and denied the defense challenge --

13 MR. TURPEN: Correct.

14 1'-!R. FLANIGAN: -- to that- evidence by tr1e Court,

15 not that it makes any difference in this trial, but

16 THE COURT: I don't know anything about 17 Okay. 18 MR. TURPEN: Then on this case I was brought in

19 on this case when Tamara Cochran-May

20 THE COURT: I know all of it. That is why we ______...., 21 reset it this far down the road.

22 1~. TURPEN: I have talked with Tamara. What I

23 have got is a motion to suppress on a photographic lineup. In 24 the photographic lineup that I had from Tamara there was only

25 Scanned Jan 26, 2012 s

._, 1 the Daubert challenge and all the stuff in there and went

2 through it. At that point I did.TJ't see any issues with

3 photographic lineups based on what I had seen.

4 Later, and I can't give you the exact date but I

5 believe it was the early part of January, that first week in

6 January, I received some supplemental discovery from

7 Hr. Rodriguez, one of those being a photographic lineup of

8 Mr. Hall where he is identified as No. 5. I checked with

9 Tamara. We did not have -chat in our discovery before.

10 After I went through the first week in

11 January I had a t.rial that lasted most of the week in Kleberg.

12 The second week I was sick. I got sick the first week. So I

13 spent the second week trying to recover. The last

14 two-and-a-half weeks I spent getting ready on this trial.

15 When I sat down with Mr. Hall, Mr. Hall who has

16 been looking at these photographs for a long time before I

17 even -- I got the case, he noticed something t.hat I had not 18 seen and ,,.,hat he has put in here I put in my motion to

19 suppress photographic lineup. He is alleging, and I certainly

20 can't answer his questions on it, that the two photo arrays

21 t.hat deal with him have been tampered with. The reason that

22 he has brought this up is that when you look at the other

23 photo arrays for all the other codefendants the location of

24 the codefendant in the photo array is always the same and the

25 people surrour>ding him have nol changed.

1 Scanned Jan 26, 2012 ?:_-~.:~c:z:·:i.a.i ~f-feari.n.-;· 2--5-09

l In Mr. Hall's photographic lineup, the two

2 lineups, for some reason his location changes from five to

three and there is also different people that are surrounding 'i him. So he is alleging that the photograph;ic arrays were

S tampered wi t.h and tha.t when the witnesses look at this r tl1a·t

6 there is a substantial likelihood of misidentification of the

7 defendant in trial as a result of this procedure, specifically 8 the tampered photo arrays of the defendant were different than

S the photo arrays of the codefendant.

10 The defendant's picture was rotated and L~. submitted with each array having different people around the

12 defendant, both acts --

13 THE COURT: I don't need you to read your ~~ •j motion, Mr. Turpen ..

1 ') MR. TURPEN: I'm just explaining. THE COURT: Explain in normal terms. You're

}7 reaciing. 3. g MR. TURPEN: Okay. Explaining

1'HE COURT: Your client thinks your photo array 20 is messed up. Cool.

.?1 So, Mr. Flanigan?

MR. TURPEN: And I think it would take probably ,!.·. five or ten minutes, and I would ask that it be carrit?d to

24 trial along with the Daubert challenge. That's why I filed it

todayso there wouldn't be more~:_:_ surp~is~~::_t:~ 1 Scanned Jan 26, 2012 r?rer:.r.-ial ii"r-:=:arj_J'Jg 2-5-09

1 is, if there is a surprise, instead of waiting till the day of

2 trial like I filed it today as soon as I found out there was

3 some issue that I have not:. seen. l'-'!R. FLANIGAN:· Well

5 ·THE COURT: Sorry, guys. I haven't touch the

6 cases before. It:.'s all new to me. 1'1.ffi. E'LANIGP.N: Dnfort1.mately the State is stuck.

8 Either we have to deal with late flled motions or we have to

deal with ineffective assistance of counsel. Because business l 10 doesn't get taken care of in a timely fashion and according to

1.1 t.he rul.es and according to the Court's schedule, we're going

12 lto object. I 'm not going to be surprised j_ f the Court goes ahead and has a hearing however long it takes anyway, but, you

14 know, we're just at the mercy of the Court or at the pleasure

15 of the Court. Let me put it that way.

16 'l'HE COURT: Who needs to be witnessed? l mean,

17 who is supposed to be the witness on this? You're talking 38 about five minutes. The.re is no way you can do it in one

19 witness in five minutes. 2D MR. TURPEN: Well, you have got Officer Brooks

21 and one of the officers, probably Matt Baird.

22 THE COURT: Is that right? Do you know?

23 MR. FLANIGAN: You know, Judge, I have no idea.

:::4 I got this about three minutes before I walked into court to ',.·.

f,

Scanned Jan 26, 2012 8 £·t.-:::;!: .?..' .l :1} ;{::?.d.:_~ _i_ TiC] 2~--- 5- C} .S

1 THE COURT: Okay. All right.

2 MR. FLANIGAN: So

3 THE COURT: You need co figure out who it is and

4 I want to k.now how much time and when it is going to be done

5 then. Okay? I need to know who the witnesses are so we can 6 get them here to deal with it.

7 l"L'R.. FLANIGAN: I assume that they'll be here any

8 way, Judge. They'll be available.

9 MR. TURPEN: They are on his witness list.

10 THE COURT: Okay. Just make sure they are.

11 Okay.

12 MR. TURPEN: ,Judge, I ·think the Court needs

13 me -- well, I usually try to file these things in a timely

14 manner. This is one of those situations where I have got new

15 information. Granted if I could have gotten on top of it the

16 first week in January when it was handed to me, that would

17 have probably been a better situation, but that's not the way

18 it happened.

19 THE COURT: Okay. What else?

20 MR. TURPEN: Other than that I would ask that

21 the Da be:r-t challenge be taken up. Other than those two

22 issues we're waiting to go to trial.

23 I have checked with my client he has also told 24 me that his mother, who is present today, that they have

o=t=::~_t_o__t_h_e- j ~ i_l_.__R_~.ha~ not 25 l_b_r_o_u_a_Jh-t hi m_c_J__

L!5A TUCKER RI~~Y, CSR, RPP been able to J Scanned Jan 26, 2012 9 ..?r·etz-__,ial iie.a.r.ir:(;t 2--5-(7:-}

1 even look at the clothing yet, and I'm sure there is some --

THE COURT: He won't. They'll put it on him.

They have got it. I'm sure all -- like all the other jails,

4 t~ey have it.

THE OFFICER: They'll dress him out Monday

6 morning.

MR. TURPEN: That is my request, Judge, is to ·'-''-

3 least have him try on the clothes before trial, because if

S they need to be altered --

10 THE COURT: I'm not in charge of the jail,

.ll Mr. Turpen. I'm sorry. You'll have to talk to somebody else

1..!. about that. Okay? ~'ie're having a meeting at 3 o'clock, but

1:: you're asking things of me to do that I have no control over.

14 MR. TURPEN: I ' l l certainly address that with

1~ the sheriff. THE COURT: What else?

MR. TURPEN: That's all I can think of, .Judge.

lP THE COURT: Okay. Who is doing punishment?

19 MR. TURPEN: Ma • am?

20 THE COURT: Who is doing punishment?

MR. TURPEN: I have to talk to my client. He

22 has still not decided yet.

THE COURT: Before 9 o'clock it must be filed.

MR. TURPEN; I understand, Judge.

,~~ THE COURT: Mr. Gilmore?

L-~-~~~-- ----------- ' . Scanned Jan 26, 2012 P.retr.ial Hearing 2--5·-09

l MH. G.ILNORE; .:.. think 'dB'.re going t.o jury for

~~ punishment.

3 THE COURT: File your election before 9 o'clock.

4 MR. GILMORE: Okay. cj THE COURT: All right.

6 (Another case called for announcement)

7 MR. TURPEN: Yes. Judge, announcement on

8 punishment, I'm pretty sure it will probably be the jury

9 because we did discuss that at the jail yesterday evening,

10 but

11 THE COURT: Okay. If you-all don't tell me now

12 otherwise Jt defaults to me. When I start at 9 o'clock Monday

13 morning i~ goes to the judge. I have to stop it because I

15 can't get anybody moving on this stuff, and I have one person

that has done it today. ---.. . ---- ----- .. __ ~- 1 .~ G All right. Number one is Hall and Pate~

1.7 Number two is Barns, subject to Mr. Roger's 18 availability, three is Ramirez, four is Moreno, five is

19 Satterlee, six is Campos, and I have down seven and eight for

20 Moreno, but I know we won't try both of them.

2.1 M..~. FLANIGil..N: Which Moreno are you speaking

22 about?

THE COURT: Ramiro. I'm sorry. I'm looking at

24 Moreno. Instead I wrote them down seven and eight. Then nine

25 and ten, Last two, Chupe and Soliz.

"=====~--=~~-----~----~------ ----·--------~ ., Scanned Jan 26, 2012 11 p·xet:.r.i.a 1 .Hear i.ng 2-·5-09

1 MR. FLANIGfl..N: Okay. Thank you, Judge.

.iO

1.5

1.7

J9

2l

24 ·•·

LISA TUCKER RILEY, CSR. RPR ... Scanned Jan 26, 2012 .:. 2

l STATE OF TEXAS

2 COUNTY OF ~SAS

3 I, LISA TUCKER RILEY, Official Deputy Court Reporter

4 in and for the 36th District Court of Aransas~ State of Texas,

:'1 do hereby certify that the above and foregoing contains a true

7 other proceedings .requested in -...;riting by counsel for the

8 parties to be included in this volume of t.he Reporter's Record

9 in the above-styled and numbered cause, all of which occurred

JJ) in open court or in chambers and were reported by me.

12 proceedings truly and correctly reflects the exhibits, if any,

1 ~~ preparation of this Reporter's Record is $61 . .50 and will be

17 ~HTNESS MY OFFICIAL lLZI,ND on this, the 21st day of July, 18 201.1 ~

~a J. --'

20 LISA TUCKER RILEY 1 21 Texas CSR #3895 • Official Deputy Court Re,"ts..L:_.. P.O. Box 700 Sinton, Texas 78387 23 Telephone: 361-364-9320 Expiration: 12-31-2012 24 25 : I

EX PARTE FROM THE. THE DISTRICT COURT

EXHIBIT 15

MASTER INDEX CHRISTOPER HALL REPORTERS RECORD 1-11 PAGE 2 Case 2:12-cv-00093 Document 11-8 Filed in TXSD on 06/12/12 Page 7 of 66

Scanned Jam 26.. 2012

Correspondence to Defendant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 217 Judgment of Conviction by Jury; Sentence by Jury to Institutional Division, TDCJ . . . . . 218 .Receipt tor Ven VacRet . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 223 . Ncr1tice from Court of Appeals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 224 C\am far rclOTt)'flwn:nl\t h'tittrrn:y v-~ .. . .. . . ... .. .. .. . .. .. .. . .. . . .. ... .. . . . 'l.'lS Correspondence from Defendant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 228 .C£>"'~ Le.tter - - . . . . . . . . . . . .. .. .. .. .. . .. .. . . ..... - . . .. . .. . . .. .. . . . . . . . . . ·.. . . . . . . . . . . . . . . . 119 Ordler from l31b Court of Appeals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 230 Not:ice of Setting ............................................·.. . . . . . . . . . . . 233 Co11respondence from Detendant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 234 Ord·er Allowing Withdrawal of Counsel and Appointing New Counsel . . . . . . . . . . . . . . . 236 Affiidavit oflndigence with Order Appointing Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . 238 Fax Notification of Appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 243 t:ov'er Letter lrom Court ot A.ppea"ls . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ~45

Judgment and Opinion from Court of Appeals (Withdrawn) . . . . . . . . . . . . . . . . . . . . . . . 24E

Judtgment and Opinion from Court of Appeals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 278 C.Witn. fut Eclna~l.lu.venile Aflm:M.~ Fees. .. . . .. .. . .. . .. .. . . .. . .. .. . . . . . . .. .. .. . .. .. .. .. . . . . .. .. . . 109 Conrespondence from Defendant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 0 Conrespondence to Defendant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 312 Conrespondence from Court of Appeals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 313 Mar1date ............................ · ....... 1/ ........................... . 314 Court Docket Sheet ;4.-r,:: , 0./ _!\_._,\:\)[\ ..... ~ .....JL..~ '>- ••• -~~· ••••••••••••••.•••.••••••••••• 315 ·. . . ./ ·- •/,J Certification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 319

v Case 2:12-cv-00093 Document 11-8 Filed in TXSD on 06/12/12 Page 6 of 66

Scanned Jan 26,. 2012

Steate's Application for Subpoena ........................................... . ISS Su'bpoena Returned Served Ju.."'liD P.adgett - - - .. .. .. .. .. .. . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161 M'\ (..).../ j., . ,,; ··"\ JlC')' !)'l.lt-: ........... ,............. ,......... - ........ - .......................................... ·' .................. . 168 '1.:"\.t ')' \\.) t...l 1 0 •• ·-. /)\.."" /! ;;_, . v-· ,~· Emest So1'IS • • . • . . . • • . . • . . . . . • • • . . • • • . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169 ---·-·-·--·-··-·-·--·-·-Def~~~t·;·Eiection as to Punishment ....................................... . 170 Strike List - State ........................................................ . 172 Strike List- Defense ............................................. ·........ . 174 Jwry Chosen ............................................................ . 176 JwryNote 1 .............................................................. . 178 Chlllfge of the Court ...................................................... . 1/~

Ve:rdict ................................................................ . "191 lutry "J!l.iTotr: l . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193 Punishment Charge ...................................................... . 194 'l'~~rJ. ............................................ ·············· ······ ........ - .... ······ .......... l9& Triial Court's Certification of Defendant's Right of Appeal ........................ . 19S Onder to Withhold ............................................. ~ ......... . 20( N

lV Case 2:12-cv-00093 Document 11-8 Filed in TXSD on 06/12/12 Page 3 of 66 EXt~ lQ Scanned Jan 26, 2012

CAUSE NO. A-08-5080-l-CR(HC3)

E:X.PARTE: ( IN THE DISTRICT COURT

) 36TH JUDICIAL DISTRICT

CHRISTOPHER JOSEPH HALL ( ARANSAS COUNTY

INDEX

Index Order from Court of Criminal Appeals ....................................... . Co:rrespondence to Judge and District Attorney . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Order Appointing Attorney ................................................ . Order from District Court Judge Janna K. Whatley .............................. . 6 mcillc\'ment ;i-..?r. 5 ........v/~. i .................... ... '.............. . 11 Af1fidavit of Indigence with Order Appointing Counsel )i. .(.e. 7. i'). .i! S. ........... . oi}~.r(" 'f~(. N.Qf.tf..i.....m,.im,. Q.{ 1>-~»tm.P.»t• . f(l£. ~".{.:~~- .. Ox /L. v:~.. ... . . .. .. . .. . . .. . 11 t 7. Receipt for Capias and Precept from Sheriff Department . .(f.{.~ .. . . .. . .. . ... . . .. 19 Cotrre~ondence to Attorney ............................................... . 20 CaJpias Returned Served ... / . ............................................. . 21 Pre:cept Returned Served .. . / . ............................................. . 22 ··w· ...................................... Corrrespondence from Defen~ant{ ... 23 Waiver of Arraignment ... . 1 .7(f. 1 . . . . . i/; /" .· · /i.P/' · ·J · · · · · 25 Mo>rion for Discovery with Order . 1t}...... .1{. P.,. . ~~~ . 7(,J., l ... jZJl: Mo,tion for Authorization to Expend Funds for Investigator ... :1{.~1 .. r.--~ ... 27 39

r.~, MCor~es~ndcence .from Defendanlt .{·,;_..[..(.1 :~ • 1~. ;~ ~ •. ~~ ~;; ~ ~ ·,~;J.' .. ~ .. j ..,i{~· ... 1 41 lY ot10n lOr ontmuance . . . . . . . . -;1) •• ({;)l.l.._...., .. 'y ~~~ .. 'd'~. . . { ... 43

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4 Tria1 Court Cause Number ;..___._;;.__._c. A-09-5090-2-CR •... _ _ _ _ · - · - - - - - - - - " - - - - - - - -'-'-'-~--'--:;_;;_..;.:

5 THE STATE OF TEXAS * 6' 'It

vs. * 7 * * ~6~a JOD~CrAL DISTRICT 8

MASrER INDJ:X

10 ,J. .,.L

12 ORIGINAL RECEIVED IN COURT OF CRIMtfl!AL .4.P.PE.4.!S 13 AUG 10 2011 14

15 Louise Pearson, Clerk .J .6.

18.

20 IN THE COURT OF CRIMINAL APPEALS AUSTIN, TEXAS

TDCJ #015(63340 ARANSASCOUNTY,TEXAS

EXHIBIT 16

INDICTMENT CHRISTOEHER HALLA-08-5080-2CR Scanned· Jan 26, 2012

INDICTMENT

THE STATE OF TEXAS vs. MICHAEL JASON UNDERWOOD, CHRISTOPHER JOSEPH HALL, ANTHONY LEE RAY, CHADRICK B. PATE, AND KEViN RAY TANTON

OFFENSE Murder, Aggravated Assault /Engaging in Organized Criminal Activity TPC Sec.19.02/ First Degree Felony TPC Sec. 22.02 I 71.p2 II First Degree Felony .

WITNESS Michael Brooks, Russell Kirk

CAUSE# 1J,4f-,62>/~~-4:&_FILEDON_:_.~~fE/_BAILs_y?~~~~ d~. **",....***H•·•H ·~·. -~ ............... 4 4. AA A·A •. ,,.,. •• AH. 4 • .. ., ....... 4·**" kf<*>*Hkk*=\'~ Ad l

IN THE NAME AND BY AUTHORITY OF THE STATE OF TEXAS

Count0nf1

COMES NOW THE GRAND JURORS for the County of Aransas, State aforesaid, duly

selected, organized, impaneled and sworn as such at the April Term, A.D. 2008, of the 36111 Judicial

District Court, in and for said County, a quorum thereof being present, upon their oaths present in

and to said Court that MICHAEl JASON UNDERWOOD, CHRISTOPHER JOSEPH HALL,

ANTHONY LEE .RAY, CHADRICK B. PATE, and KEVIN RAY TANTON, acting alone and

together, on or about the 4th day of Janu~ry. A.D. 2008.and anterior to the presentment ~f this

Indictment, in the County and State aforesaid, did then and there intentionally or knowingly cause

the death of an individual, namely, Aaron Watson, by shooting the said Aaron Watson with a

~ountTwo

AND THE GRAND JURORS AFORESAID, upon their oaths aforesaid, do further present in

and to said Court that MICHAEL JASON UNDERWOOD, CHRISTOPHER JOSEPH HALl,

ANTHONY LEE RAY, CHADRICK B. PATE, and KEVIN RAY TANTON, acting alone and

together, on or about the 4th day of January, A.D. .,. 2008 and anterior to the presentment of this Case 2:12-cv-00093 Document 11-8 Filed in TXSD on 06/12/12 Page 4 of 66

Scanned Jan 26, 2012 t f(p f£1·~-

State's Applica!ion for Subpoena ..... ~ , ..... , ... , ....... , .................. , '··· 53 Subpoena Returned Served Sheldon Wiginton ................•...... ·.... , .................................. , ...... , ..... . 57 John Reddick ....... ''··',., . ·,., ......... , .... :,,.·.,.,,, .... ,.," ...•.... ,.· ...... ,....•.. 58 Matthew Baird ...... , ,...... , .. ,_ ........ , , ... ,..... , ....... , ., , . · , ........· .... ··.· ..... , , .: ....· .. . 59 Spencer Yarnall· .....· ..................... ·..........•. , ................ , ..... , ...... , .... 60 Tracy Lynn Watson.', ........ ,.:.;·.....•.. ,., ... , ...•.. ,.· .•.. · ....... ·.·........................ . 61 Lillian Penick .... · , .· ,..........· .. ,· .•. ,, ...... , , ...... · . , ,:·, .. ;_ ...; :•.,, .. , .·. ··> •..... , , .,, .·..• 62 Stephanie Abbott ........• , .. , . , ..... , ....•..........•...... , .. ·.... , ........ , ,...· ,....... , 63 Joel Bear ...·, ....... ,,., '··., ..•. ·.•... ··· .............. ·• .................... •.·• ,., ............. . 64 Karl Petzold , .... · ....... ' ... :..... , ·' , ...· . ,. '· . , ·.. '·. ; :.. , .......... ·: ... '· ·, , , .....· ·. , .. ·_, , , ... . 65 Stan Powell .......... , ................... · ... :· ......................... ,_..· ,. , .·.· ... , ... , ..· 66 Willirun Newsom .... , ••·• ..•..• , .. , ·......... ·· .•....·.· .....•... ·..... , .. , ..........· ...•...........•... 67 Nathan Garrett.· .... ,., •.. ,, ......... ,.. ·,., ........•; ,....... , ..... , ............. ·........ ,·., ........ . 68 Gavin Harrison ........•. , . , .............. ·.·· ....... · ..............., , ... ,....·..... , . , ..... , .· .. ,....... 69 Michael Huffinan· ',, , . , •·• • ........................................ , .........................··· 70 Jrunes Beck ......, .• , • , .... :• ,·,, ........ •,. ·'··.' ........ .·:, .. .. , . ·: ... , .. ·.......... . 71 John Gutierrez, ..... , ... ,... , ...... ,.· .......... ,................, ... , ............. ,. .... :.,.·.· .. . 72 MiChael Brooks ...·....•..• , ·.. , ..... ·· ................. ·......................................... . 73 ~ State's Motion for Continuance .....•................... , ... , .. , ...... , .... , ..... . 74 '}--Setting Notice . ·.... ·.................... ·. ·· ..................................... , ............ . 76 Subpoena Returned Served Ranger Oscar Rivera .........•... , ··.:··, .•.... , ........ ,........• ·.. , ........ , .......... . 77 Deputy Keith Pikett ......... .,... , , ; ......... , ·.·, .... <·., .·., ... ,, ..... ,., "' ··:·., 78 Kimberly Wright ..........., ·............. ·, , ..........·...· ...........·., ........... · .... · ... . 79 SuniLee ........... ··:········· ... ,·,. •··•··· .......... •• .... • • ......... •···· • •·• ... • .. ·.. • ... •·· .. 80 Brandy Woolverton .. , .· .....· .. , . , .................. , . ·..........., , ........ ,. , . 81 Todd Garcia .................... ·.......... ·. ·.. ·.... ·... , ..,................ ,.· ........ ·.:· ..•..• :.. , ..... ,., ·. 82 Yvette Garcia ................., .. ·.· ....................•............................... ,...... , •..... 83 JoAnn Budlong ............ ,...·.:.· .. ·· ..... ·•· .......· .....·, .: .. , .. , .. ·, ... , ...... ,, .•....• •· •.. 84 Patricia Arnold ................ , .......•.·............·· ......... ; .. ·, .. , , ..... , ., ............ ·, ·. , .... . 85 Gilbert Cardenas ........ ·:.· ................... , .. , ...................•.... , ·,., .... ,...... ,... , .· 86 WilHam White. ·c.•.,. •.•. , •••••.• · ............ • •••••.• ' •• · . ' . , , ,..•••.• ,. • •• , •••• · •• · ••.••..• 87 Ra)'lllond Smyth .. , ...... , ,.,,, .... ··.: ....... ·....... , .. , . , ,..·. ; ... , ... •·.· .....·..•.... ·. ,.. 88 Nema Bardin .......... · .............................. , ........., .... , .... , .... , .......... 89 Sgt. Chris Baggett •.. ·....· ... · ..•....... , .. , ...... :.. ·...· ·......·....... ,........ ·•...... , ...... . 90

Subpoena Returned Unserved Danielle Molina ................ ,......• ,......................... , ................. . 91 Cover Letter .............. •... , ............ ·· ............... , ........ ·· ..... , , .... . 92 . . to w·tt hdraw as C ounseI Cocittt~J M otton .. · .· ..·.. " ...... f;s .. . . .lo ./.' .....· .........................·.....·.· ...•... 93 . M ott· on· to .W'thd 0 r der on 1 toj.t '7 4-Jh~\ .................. raw as ·c ounse1 .................... . . . .. . . . . . 96

11 IN THE COURT OF CRIMINAL APPEALS AUSTIN, TEXAS

CHADRICK B PATE 36TH JUDICIAL DISTRICT

TDCJ #015l63340 ARANSAS COUNTY, TEXAS

COVER SHEET EXHIBIT 17

2/9/09 REPORTERS RECORD VOLUME 4 OF 9 PAGE 102 LINE 9-25 CHADRICK PATE A-08-5080-4CF ~1'1 • 1~ I

..;: 1 R E p 0 R T E R I s R E C 0 R D ' 2 VOLUME OF q- VOLUMES 3

4 Trial Court Cause N_umbe.r. A-na-.snan-4.-c::e. 5 THE STA.T.E O.F .TEXAS * :.r.~ T.l!E !XI S!l'..'QI .CT .C.OJ}RJ!' OFt 6 * VS. * ARANSAS COUNTY, TEXAS 7 * CHADlRICK B. PATE * 36TH JUDICIAL DISTRICT 8

JURY 'l'RIAL Voir Dire Proceedings

A P P E A R A N C E S 11 C.OL'll.rSEZ. FOR J!'llE Sf'A-f'E: MR. MARCELINO RODRIGUEZ ~:~·; .- "r! MS. RETHA CABLE \ ~'2..'2.."5.'2..'11~\Vll 103.'2>'11'?<-:i.~"l "h"l"l'V'?<.'I.lJ't..'i 36th Judi.cial District 14 San Patricio County Courthouse l'. 0. BoK i'.3-5'3 Sinton, Texas 78387 Tel: 361-364-6220 Jtc1·A-; 3'01. -·Yo~ -~~ ...,ro SBN: 24046959 17 00785741

COUNrSEL FOR THE DEFENDANT: MR. JOHN S. GILMORE ~'T'l:D"R'l\f'E.;'f A."J.' ~LKW

P. 0. Box 2 7 6 20 622 South Tancahua Corpus Cnristi, Texas 78403 21 Tel: 361-882-4378 Fax: 361-882-3635 s-s·N : 07 9 5 8 5 0 0

23 On the 9th day of February, 2009, the following proceedings came on for trial in the above-entitled and i;i 24 numbered cause in said_Court, HONORABLE JANNA K. WHATLEY, i.. Judge Presiding, held in Rockport, Aransas Countyl Texas: 2SL_ Proceedings were reported by machine shorthand. 102

1 Tim Foss, Number Seventy-Two.

2 MR. GILMORE: Yes, sir.

3 VEMIREPERSON FOSS: You said that y'all were

4 not a team.

5 MR. GILMORE: We're not a team.

VENIREPERSON FOSS: Okay. I believe the

7 .Judge said these two gentlemen will be tried in t_b..e s.arn.~

8 case; is that correct?

9 MR. GILMORE: This is going to be one trial.

10 VENIRE PERSON FOSS:. One tr:ial.

11 MR. GILMORE: One tri'al.

12 VENIRE PERSON FOSS: But you're not a team. ( 13 MR. GILMORE: We'r:e D.Q. t-_ a +--~:C.'R,. '· 14 VENIRE PERSON FOSS: Okay, I guess. I 15 MR. GILMORE: In other words, to be

16 completely honest with yn11., 1:.. rir.v~.'t--. ~a':i:oc ·w'r!a't. 'n-crppens ·to

17 Mr. Hal_l. Okay? My interests are for Mr. Pate. Okay?

18 VENIREPERSON FOSS: But you're doing it in

19 the same trial.

20 MR. GILMORE: We're being foroed to do it

21 this: way. Okay? All right?

23 MR. GILMORE: We would ra~her not do it this

24 way. Okay? ( 1S~~------------------'f_e_s__, __m_a__~_a_m__ . ______________________________________~ , . ··-""'"·

EXHIBIT 18 REPOR'FERS RECORD VOLUME CHADRICK B PATE LEG RESTRAINTS PAGE 259 LINE 1..:25 259

1 Please don't discuss the case with anyone. (The jury exited the courtroom after which there was a 2 discussion off the record.) \ 3 THE COURT: 'Okay. Go ahead.

4 MR. GILMORE: There were some folks sitting

5 out ln the audience over here. I believe i t ' s --

6 THE COURT: Where?

7 MR. GILMORE: Right over here. I believe it

8 was Mr. Watson's family.

9 THE COURT: Mr. Who?

10 MR. GILMORE: Watson.

11 MS. CABLE: His mother and his grandmother.

12 It's his mother. They're here with the little girls.

13 They're custodians.

14 MR. GILMORE: But anyway, one of the people

15 sitting behind the Watsons, his mother and father, said --

16 pointed over to my client and said, "He's in jail. I know

17 he's in jail because I can see his leg brace." And it was

18 said where the jury could hear it. And I just want them

19 instructed not to be making statements in front of the

20 jury.

21 THE COURT: I don't want anybody -- anybody

22 that's involved with the witness or whatever does not need

23 to be making any comments whatsoever about the case while

24 they're sitting in the courtroom.

25 And you'll please advise them, 260

1 Mr. Rodriguez

2 MS. CABLE: I don't know who was talking.

3 Who said that?

4 THE BAILIFF: That's the C.P.S. girl.

5 MS. CABLE: Okay, 'cause it wasn't our

6 witnesses. It wasn't anybody I have control over. We'll

7 make the instruction and, for the record, I didn't hear

8 them make any comment.

9 THE COURT: Is that Ms. Abbott? She's on

10 the witness list.

11 THE CLERK: Stephanie?

12 THE COURT: Yeah. She's on the witness

13 list. If that was her; I don't know --

14 THE CLERK: I think that's her name.

15 THE COURT: Well, y'all's witness ain't

16 going to get to be in the courtroom.

17 MS. CABLE: Not our witness anymore, Your

18 Honor.

19 MR. RODRIGUEZ: She was basically having

20 custody of the children, so that's why she was on the

21 list. They were actually placed with somebody else on a

22 permanent basis.

23 MS. CABLE: I don't think we're planning on

24 calling her.

25 MR. RODRIGUEZ: We weren't planning on 261

1 calling her, Your Honor.

2 THE COURT: You're going to have to check

3 with them, guys, at the door.

4 THE BAILIFF: Yes, ma'am.

5 THE COURT: Would be C.P.S.

6 Off the record, Sharon.

7 (There was a discussion off the record.)

8 THE COURT: Just for the record, gentlemen,

9 I have reviewed -- got to me late -- but Mr. Tanton's

10 criminal history. I've reviewed Mr. Leal's -- no, no.

11 Who is this?

12 MR. RODRIGUEZ: Underwood.

13 THE COURT: I'm sorry; Ray's. There's ...

14 one felony conviction it looks like. Is that what y'all

15 saw?

16 MR. RODRIGUEZ: On?

17 THE COURT: Mr. Ray. It's a conviction for

18 some sort of drugs, Four-Eighty-One-Point-One-One-Five-B.

19 I don't know if that's the cocaine charge or not; I don't

20 know. Less than a gram on him.

21 I'm just now reviewing Underwood's.

22 (Examining document/s). He's got a felony theft,

23 Mr. Underwood does, guys.

24 MR. GILMORE: Who's that?

25 THE COURT: Mr. Underwood has a felony IN THE COURT OF CRIMINAL APPEALS AUSTIN, TEXAS

EXHIBIT 19

AFFIDAVIT OF CHADRICK PATE (LEG RESTRAINTS) STATE OF TEXAS §.

WICHITA COUNTY §

AFFIDAVIT OF CHADRICK B. PATE

Before me, the undersigned notary, on this day personally appeared CHADRICK PATE,

the affiant, a person whose identity is known by me. After I administered an oath to affiant,

affiant testified:

"My name is Chadrick B. Pate. I am over the age of 18, of sound mind, and capable of

making this affidavit. The facts stated in this affidavit are within my personal knowledge and are

true and correct.

During my four day trial in Aransas County Texas from February 9, 2009- February 12,

2009 I was in leg restraints that limited my movement. The limitation of my movement was

visible to people in the courtroom. I was made to wear the leg restraints in the presense of the

Jury."

SWORN TO AND SUBSCRIBED before me, the undersigned authority on this day J.../ of May, _2012. IN THE COURT OF CRIMINAL APPEALS AUSTIN, TEXAS

. WRITNO.

EX PARTE FgOM THE THE DISTRICT COURT

EXHIBIT 21

INDEX OF EVENTS CERTIFIED TO THE OURT OF APPEALS CHADRICK PATE A-08- 5080-4CR ·;. '$tJ-: ole(7u:; /!,ecMd Gt:->/l__ a..C=~d.l .• \~ Case 4:13-cv-00709 Document 5-13 Filed in TXSD on 05/17/13 Page 2 of 60 ·/I'\ . . l-&V ~~ CAUSE NO. A-08-5080-4-CR ~. =< P"--!.e-J :>' ~ ' . l-- ()q.:~- ~\ Q' "a 11 /.. THE STATE OF TEXAS ( IN THE DISTRICT COURT iJ7.ft' j).fi1 vs ) 36TH JUDICIAL DISTRICT ~· CHADRICKB. PATE ( ARANSAS COUNTY

Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Caption................................................................. 3 Indictinent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Capias Returned Served . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Precept Returned Served . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Letter of Representation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . 9 Waiver of Arraignment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . 10 Motion to Reduce Bond ............................. ·. . . . . . . . . . . . . . . . . . . . . . . 11 Defendant's Motion to Reveal the Deal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Request Under Article 37.07 Section 3(g) for Notice from State . . . . . . . . . . . . . . . . . . . . 16 Rule 404(b) Request for Notice of Intent to Offer Extraneous Conduct . . . . . . . . . . . . . . . 18 Motion to Prohibit State from Attempting to Introduce Statements Allegedly , Made by the Defendant without Prior Hearing on Admissibility . . . . . . . . . . . . . . . . . . . . 21 Motion for Discovery, Production and Inspection of Evidence . . . . . . . . . . . . . . . . . . . . . . 23 Order on Rule 404(b) Request ................. ·.......'. . . . . . . . . . . . . . . . . . . . . . . 33 Order on Motion for Discovery ........................ ; : . . . . . . . . . . . . . . . . . . . . 34 Order on Motion to Reveal the Deal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

~:::: ::::~~~ck P~e f~r Seve~ce of~fendan~. r/~~1: ;: :::::.::::: Order on Motion for Continuance ......................... .7./ ~.?. ... ........ 42 State's Motion for Continuance ................... , ....... q /.:t:S ............ 43 ?-~~on Motion for ~cv~~~~e .......................... C?J ./. ~ S. ........... -~ . ~~-~;(· Td ({[1--- I

/ Case 4:13-cv-00709 Document 5-13 Filed in TXSD on 05/17/13 Page 3 of 60

Motion to Dismiss . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 Defendant's Motion to Elect the Jury to Assess Punishment . . . . . . . . . . . . . . . . . . . . . . . . 49 Defendant's Motion in Limine . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 State's Strike List ......................... ·. . . . . . . . . . . . . . . . . . . . . . . . . . . . ." . . . . 53 Defendant's Strike List . . . . . . . . . . . ... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 Jury Chosen . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57

__!ury Note. . . . . . . . . . . , : .... ~- .... i l\~,·,A.;.yj)_x, ....................... 59 ~ har e of the Court .•. ,.,.... j.__v) .... 1.'1. ,U.f' ~ .· . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 zrdi~~_(Guiltllnnocence) ........ ; ·,·...... . . . . . . . . . . . ---~~,:. .. ................. 72 ----, Jury Note ..................................... , . . . . . . . . . . . . . . . . . . . . . . . . . 74 ~shmentCharge ............................· .· .......................... 75

zi~o:~=:~.~~~ ~~-~~;.;.,~~~ ~i~~ ~f·~~~~- : : : : : ... : : : : : : : .. : : . : : : : : : :~ /"groer to Withhold . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81 ~otice of Appeal ... ~ \ ~~ .\.V. -~. .................................... 82 Affidavit of Indigence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83 Order Appointing Counsel .............. ·. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87 Notice of Appeal to Court of Appeals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88 jfudgme~of Conviction by Jun'; Sentence by Jury t~nstitu~nal ~ivision, 1DCJ . . . . . 89 CourtDoc~ .?-:\\~.\~---~-'-~----~-·\·~-~-~-············ 94 cerub·~~~~c; -~ .'-\ \ \"(\ \ 0 ."C ........................... 97

---·----------

2 . ~~(/ ~ . [6 )6 .

46 f\) c) (Yic 0 fJZ.. Defendant's Motion to Elect the Jury to Assess Punishment . . . . . . . . . . . . . . . . . . . . . . . . 49 Defendant's Motion in Limine r.t L-e ~. C.dl. 0 .C:t.l P. 9. . . . . . . . . . . . . . . . . . . . . . . . . . 50 J

State's Strike List .......... ~. ?.

lb t~c> /U ., ., l 2 Jz../2..1- z_/5 . I

EXffiBIT 22

JUDGMENT FRONT PAGE CHADRICK PATE A-08-5080-4CR .... . ·..::. ... I / ;'

Cause No. A-08-5080-4-CR (Count One)TRN 914 665 6553

THE STATE OF TEXAS § IN THE 36TH JUDICIAL v. § DISTRICT COURT OF CHADRICKB. PATE, § ARANSAS COUNTY, TEXAS DEFENDANT SID: TX05581316 JUDGMENT OF CONVICTION BY JURY; SENTENCE BY JURY TO Institutional Division, TDCJ DATE OF JUDGMENT: February 13, 2009 JUDGE PRESIDING: · Janna K. Whatley ATTORNEY FOR THE STATE: Patrick L. Flanigan ATTORNEY FOR THE DEFENDANT: John Gilmore OFFENSE: Murder STATUTE FOR OFFENSE: Section 19.02, Penal Code DEGREE OF OFFENSE: First Degree Felony APPLICABLE PUNISHMENT RANGE (including enhancements. if any): First Degree 5-99 yrs or life/max $10,000 fine DATE OF OFFENSE: January 4, 2008 CHARGING INSTRUMENT: Indictment PLEA TO OFFENSE: Not Guilty PLEA TO ENHANCEMENT Not Applicable PARAGRAPH(S): VERDICT FOR OFFENSE: Guilty FINDING ON ENHANCEMENT: Not Applicable AFFIRMATIVE FINDING ON Yes-firearm used or exhibited DEADLY WEAPON: OTHER AFFIRMATIVE Applicable, See Below SPECIAL FINDINGS: ·DATE SENTENCE IMPOSED: February 13,2009 PUNISHMENT AND PLACE OF Ninety Nine (99) years in the CONFINEMENT: Institutional Division-TDCJ, and ~ $ 10,000.00 fine TIME CREDITED TO SENTENCE: Two Hundred Eighty Five (285) days COURT COSTS: $265.00 TOTAL AMOUNT OF RESTITUTION: $-0- NAME AND ADDRESS FOR ' RESTITUTION:

The Sex Offender Registration Requirements under Chapter 62, CCP, do not apply to the Defendant. The age of the victim at the time of the offense was not applicable.

This sentence shall run concurrently unless otherwise specified. FILED q

a, ___..~.~~v-=-- 't~~ - da!i9b ~ 20~ ---~=o'clock .# M , Pam Heard, District Clerk D~pu ,AransasCo.,Texas By JV. Deputy \ .\ . I n~Ll· Tnr!a,.,nt nfrnnvirtinn hv rrmrt: SP.ntP.nr.P. Rv .Tnrv_ Cause No. A-08-5080-4.-CR: Pa2e 1 of 4 Pa2es I IN THE COURT OF CRIMINAL APPEALS AUSTIN, TEXAS

EXHIBIT 23

DISTRICT CLERK CERTIFICATION TO THE COURT OF APPEALS CHADRICK PATE A-08-5080-4CR

•· Case 4:13-cv-00709 Document 5-14 Filed in TXSD on 05/17/13 Page 38 of 38

# a3 The State of Texas ) County of Aransas (

I, PAM HEARD, Clerk of the District Court of Aransas County, Texas do hereby certify that the documents contained in this record to which this certification is attached are all of the documents specified by Texas Rule of Appellate Procedure 34.5(a) and all other documents timely requested by a party to this proceeding under Texas Rule of Appellate Procedure 34.5(b)

GIVEN UNDER MY HAND AND SEAL at my office in Aransas County, Texas this /If:! day oL . ·~ ... ·.· , 2009.

PAM HEARD DISTRICT CLERK

BY:~ ,Deputy Filed on the ~I' day of -----7'~'f--------, 20 e::J / z; ____ PA_M_H_EA_R_D_ _ Clerk of the District Court -----"~--"----· _____ County, Texas

By --.c....:dj~~~----- Deputy

THE STATE OF TEXAS

County of - - - - - - - - , . . - - - - - PAM HEARD I, - - - - - - - - - - - - - - - - - - • Clerk of the ( District Court of - - - - - - - - County, Texas, do hereby certify that the within and foregoing is a true and correct copy of the Original Bill of Indictment, filed in said

C'ourt on the _ _ _ day o f - - - - - - , - - - - - A.D. 20 in Cause No. _ _ _ _ _ , styled The State of Texas vs

..... . Given under my hand and the seal of said Court at office in

- - ' - - - - - - - - - - - - - , T e x a s , this. _ _ _ _ _ day of

-----------~· A.D. 20. - - - -

PAM HEARD Clerk by - - - - - - - D e p u t y

36th D.A. Form 850 - General Indictment 6/90 (12/99}

·----·-- ···-···----·· ···-----···· -- .. -· ······--- IN THE COURT OF CRIMINAL APPEALS AUSTIN, TEXAS

EXIDBIT 24

JUDGE: WHATELY'S CERTIFICATION TO THE COURT OF APPEALS OF ALL PROCEEDINGS

I I I The State of Texas ( County of Aransas )

In the 36TH Judicial District Court of Aransas County, Texas, the Honorable JANNA WHATLEY, Judge Presiding, the following proceedings were held and the following instruments and other papers were filed in this cause, to wit:

Trial Court Cause No. A-08-5080-4-CR

THE STATE OF TEXAS, Plaintiff ( IN THE DISTRJ:.~T COURT

vs ) 36TH JUDICIAL DISTRICT

CHAD RICK B. PATE, Defendant ( ARANSAS COUNTY, TEXAS

(