Pate, Chadrick B

Opinion

June 02, 2015

Abel Acosta Clerk of the Texas Court OATE:__!~-±+~- of Criminal A.ppeals F~LE \N W 201 West 14th Street· BY: --1-1~--- Austin, Texas 78701 RECEJVED IN COURT OF CRIMINII.L APPEALS Nema Bardin PO Box 772 JUN 02 2015 Austin, Texas 78767 512-487-0197 Abel Acosta, Glen, email: bardin:nema@yahoo.com

Re: Amended Emergency Writ of Habeas Corpus WR-78, 165-02 Chadrick B. Pate Applicant~ Nema Bardin Petitioner

Dear Mr. Acmsta,

As you know, I hand delivered a Original Writ of Habeas Corpus appealing from a Void Judgment in Cause No. A-08-5080-4cr from the Aransas County District Court 36th Judicial District Arans;as County Texas Judge Janna Whately presiding on May 19•b, 2015

You were kind enough to go over the paperwork with me and after a discussion about it's contents you fltook the Writ for filing. During the discussion of the contents I asked you about the time frame fo:r decisions on Original Writs filed straight into the Court of Criminal Appeals with the kinds of Sf! rio us allegations that I as petitioner had leveled against the 36th District Court Aransas Coumty, Texas.

You advised llllle that you were bound by no rules for a time for a decision. With that knowledge I came back to study the rules of procedures once again, and based upon that study and my limited understandin~g as a layman, I am now filing the above mentioned Amended Original Emergency Writ by also bLand delivering it to the Court for filing.

J .am .r.espJ>-.clfm.lly .rJ>.qJJ.e.qing that J.h~ W.rit h~ .d.tiliYuro .to ruJ~ nr .nw.r~ .JJL\ijji'.j!.~ ..a.~ .AAD.D ..a.~ i.~ possible, understanding that the Justices have the inherent power to waive any procedural rules in order to br:ing releif on and emergency basis. Rule 2 of the TRAP.

I have taken nwte that no action as of today at 1 pm. Central Standard time has been taken on the Writ filed on 1\iay 19•b, 2015, in accordance with the Texas. Criminal Court of Appeals website under case m~mil.

IN THE COURT OF CRIMINAL APPEALS AUSTIN, TEXAS WRIT NO. WR-78, 165-02

EX PARTE FROM mE DISTRICT COURT CHADRICK :B. PATE TDCJ NO. 01563340 36TH JUDICIAL DISTRICT APPLICAI~T ARANSAS COUNTY, TEXAS CAUSE NO. A-08-5080-4CR

NEMA BARDtiN PETITIONE:R v.

JUDGEJAN~NA K. WHATELY

AMENDED

EMERGENCY APPLICATION FOR ORIGINAL WRIT OF HABEAS CORPUS FILED JUNE 02, 2015

IN THE COURT OF CRIMINAL APPEALS AUSTIN, TEXAS WRIT NO. WR-78,165-02

EX PARTE FROM THE THE DISTRICT COURT CHADRIC:K B PATE TDCJ #01563340 36TH JUDICIAL DISTRICT APPLICANT ARANSAS COUNTY, TEXAS CAUSE NO. A-08-5080-4CR

NEMA BAJRDIN PETITIONER v.

JUDGE JAm~ A K. WHATELY TRIAL JUDGE

AMENDED

EMERGENCCY APPLICATION FOR ORIGINAL WRIT OF HABEAS CORPUS PURSUANT TO

ARTICLE V', SECTION 5 OF THE TEXAS CONSTITUTION AMENDMENTS 1, 5, 6 and 14 OFTHE UNfiTED STATES CONSTITUTION TEXAS COMMON LAW AND THE COURTS INHERENT AUTHORITY

TO THEHOJ'~ORABLE JUDGE OF SAID COURT:

NOW COMES, Petitioner Nema Bardin on behalf of Applicant Chadrick B. Pate and respectfully submits this .AMENDED Emergency Original Writ Of Habeas Co1Jms petitioning for relief from a Void Judgmemt in Cause No. A-08-5080-4CR Chadrick B. Pate • Trial Court Judge Janna K. Whately. The Initial Halbeas 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.

The Judgment,, Sentence and Conviction pursuant to The Judgment rendered by the Trial Court 1.

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 County 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.

JURISDICTION

The Court of Criminal A_p_peals has Original Jurisdiction under Article V, Section Five of the Texas Constitmtion, Article 1, 5, 6 and 14 of the United States Constitution, Texas Common Law and the Courts Inh.erent Authority. State v. Johnson, 821 S W 2d 609. 612 Tx. Crim. App. 1991 held a court of criminal a_p_peals may take action only if that action is authorized by constitutional provision, statute, or Con;1mon 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 remedy would not only be contrary to the rudimemtary demands of justice but destructive of a constitutional _guaranty s_pecifically designed to prevent injustice. Fay v. Noia 372 U.S. 391 Sup. Ct. 1963. The Writ 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 a_p_peal therefrom. E~parte Gimmbonini 117 CAL 573, 49 P 732; VOID judgment is Never final and a judgment acquired throULgh violation of "due process of law" and Fraud is void and never becomes final. Dubai Petroleum Co. v. Kazi 12 S W 3d 71 76 (Tex. 2000,) Ajudgment will never be considered fintal if the court lacked subject matter jurisdiction. It is well settled law that a legal action by a court without jurisdiction is a nullity. his Habeas Corpus is a collateral attack on a void judgment A collateral att:ack is any _proceeding to avoid the effect of a judgment which does not meet all the requirements .(of a valid direct attack. There is neither a set procedure for a collateral attack nor a statute of limi1tations. See Glunz, 908 S W 2d at 255: Davis v. Boone, 786 S. W.2d 85,87 (Tex.App- San Antonio 1990, no wriO.

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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 (Count 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 confinement 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. When Applicant's Mother found out that Ms. Crisp 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. See WR-78,165-01 in Court Record. Applicant's W1rit was denied without Written Order on 3/6/13. Because Applicant is not skilled in the law he did no•t 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 discovered that because his trial court judgment was void he filed into the Trial Court Motion to Vaccate Judgment on 12/5/14. After providing the trial court every opportunity to provide releif, by requesting on at least 3 occasions a decision, when the court had still not ruled or corresponded with Applicant he then withdrew that Motion on 5/18115. There are no other motions

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pending in thi~s matter at this time. Applicant is presently in custody of Texas Department of Criminal Justice System Stiles Unit Beaumont Texas.

EMERGENCY RELIEF

A.\\\\W:an.t ba.\lJ lw!u.. ~all'J iw:.w:~awl u~ tW!. trial '!IW.rt' 'i. ~all'J tilifaiiWi V'lid JJJJicl,IJlJ!nt since May 5tb, 2008. (more than 7 years) He has proclaimed his innocence from the time he was charged with 14he horrific crime of murdering his own best friend. He mourned the death of his frktrd itr cr jttl~ «<I ffirik ff'ctititrg ftrr tire Jaffi\.ae sy~ tt1 lrritrg ja:«i\.ae tt1 lrodr /rim crtrd Irk /rest friend. Howe·ver the Officer who's task it was to bring justice to Applicant instead worked diligently to Convict him, they abused all of Applicant's constitutional due process rights, and committed framd to obtain an illegal and void conviction. Applicant bas gone tbrougb pbyslcal and mental ai:Jmse while imprisoned, suffered racism at the hands of the staff and inmates in TDCJ lost the connection with most of his family and all of his friends, his son who was 5 years old at the tim«e of his incarceration has suffered greatly from his Father's incarceration and needs the guiding and loving wisdom of his Father today not later. Applicant is not guilty of murdering his friend, anud it is the State of Texas and officers of the Court who illegally obtained an illegal Conviction an.d stole his liberty, His liberty is due today not later. It is an affront to the Applicant the Judicary and the very society that expects that the Judical System will do Justice, that Applican1t would have to spend one day longer incarcerated under such an intolerable abuse of power by tRite Trial Court and Officer's of that Court. The cost of de:fense for his freedom has devastated his finances and that of his family. The mental and em..ntianal s.uffer~ and the ln.~s. nf hi~ lihe~ i~ irretp.rahl£.. Tlu! \}rncedure~ re(\uired in an~ legal process to obtain Applicant's liberty is long, and tedious requiring months for the Courts to provide relief to Applicant because of the procedures that Courts employ.. The Petitioner has (ffl?f'i<kd;{M'JCif in tltt.r A(1{fflcati.m mr E~· OrigitrBl H~ C~ Rfflef tkro«g/1 providing the Trial Courts on Records and Affidavits that support a finding of a Void Judgment acquired through violation of Applicant's due process rights, through fraud upon the court, and tbrougb tbe offficer"'s ol tbe court tamperlng wltb tbe trlal court7government record. 'Because there is no effiicient or quick remedy for the relief that Applicant deserves, Petitioner respectfully requests that 1this Court use his inherent authority to waive rules and procedures and provide an immediate de•cision for relief, or in the alternative permit BAIL under a P R bond until the Court can reach a d«ecision on the Petitioner's Original Application for Habeas Corpus relief.

Where a void judgment has been rendered and the record in the cause, or judgment roll reflects the vice, then the ccourt has not only the _power but the ducy and even after the expiration of the term to ;;et aside such judgment. Harrison v. Whiteny, Tex Crim App 6 S W 2d 89.

MANDATORY RELIEF

Reliefunder voidjud_gment Statute is Mandatory, Carterv. Fenner 136 F 3d 1000, 1005 (5th Cir:) 1998. a void jllldgment 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 cour1

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

EVIDENTARY HEARING

Petitioner- request evidentary hearing if the Court cannot determine that relief is required through the facts presented.

STATEMENT OF THE CASE

A grand jury 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 c~o defendants on June 24, 2008 See Ex # 2 Indictment. Applicant was the last to be arrested oftthe other co defendants. Applicant was arrested on May 5, 2008 when the Aransas County Sheriff'(Mark Gilliam) illegally had his pre trial supervision (on a separate case ) revoked and had the bondsman withdraw his bond. Applicant had violated any pre trial supervision requirement. Thus when the: indictment was presented to him he was already in custody of the Aransas County Jail, who cont1rolled all of his movements to and from the pre trial court and the trial court .and where he remained mntil he was released into the custody of the Texas Department of Criminal Justice in 2009. There is NO Record of the Sheriff or Jail Personnel statement of Applicant's Good Conduct submitted to the Texas Department of Criminal Justice. Applicant plead NOT GUILTY to all charges. Because the State brought the charges against Applicant jointly in a single indictment , Applicant had his Defense Attorney John Gilmore file a "Motion for Severance of Defendant and Offenses" on July 31st 2008. See lEx# 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 At1tomey John Gilmore came to the jail only twice to visit client although Applicant asked numeroms times to see him. Both Applicant and Petitioner asked Mr. Gilmore numerous times about thte Severance, he told both Applicant and Petitioner only a few days before a joint

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trial with the other co defendant(Hall) that his Motion for Severance had been denied. (This was not true) However Applicant did not know about this lie, until after the trial was over, after his Appeal in the 13th Cour1t of Appeals had been denied and not until he was proceeding with a State Habeas Corpus pursuamt to Article 11.07. The trial Court and it's officers' held Ex _parte _pre trial hearings in both A_p_plicant's cause no. A-08 -5080-4CR antd co defendant' Hall's cause no.(s) A-08-5080-2Cr and S-08-5080-2. The trial court and it's officers tampered with the official government documents in Applicants Criminal Trial Court _proceedings in cause no. A-08-5080-4CR and in co defendant Halls Criminal Proceedings tllhat directly affected Applicant's Criminal Proceedings. The trial court and officers of the court committed fraud on the court when they concealed ex parte _proceedings from the A_p_plicant, Jury, Courts of A_p_peals, Public and the Trial Court itself. AlthoughAppllicant timely and properly filed his Motion for Severance ofDefendant and Offenses at a pre trial on 77/31/08, he never received a formal hearing on his Motion where the pre trial court ruled on the rmotion by _granting or denying the motion where a written record with factual findings were entered onto the record of the court and where the proceedings were recorded and made a part of the trial court :record. The trial court and it's officers entered into a scheme to convict A.~plicant of a crime that he did not commit through the manipulation of the judiciary by tampering with government records concealing ex parte hearin_gs, government documents and through the violations of Applicant's due process rights. This scheme started first before the _pre trial and trial when Aransas County Sheriff Mark Gilliam had Applicant's bomd revoked on a separate prior offense for which applicant was on pre trial probation and arrested him f«or a violation of his pre trial probation although he had not violated that probation. A_p_plicant was arrested at gun _point at his Mother's home and taken into custody by numerous agents that included tthe Austin police department ATF and other unknown officer.

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The officer's to1ld Applicant and his Mother that he was being arrested for violation of probation due to a murder that lhe was accused of being involved. Then next whten the State and Grand Jury indicted applicant jointly with the other co defendants and charged him ~vith the Crime. Then when Applicant was held in the Aransas County jail awaiting trial the Jail employees and detectives/ investi_gators in the case would not allow him to take his le_gal

paperwork wi1th him when he was transferred from the Aransas County Jail to another jail in Crystal CifJJ.

They refused him the right to take his defense records and discovery with him and then they did not keep his records safe when transporting him from one jail to another but rather they took his discovery records and defense notes to the trash where it is believed by the Petitioner and the Applicant that the jailers and the investigators employed the scheme to take his records from a dumpster where they had been deposited by the jailers and they investigators planned to use the information against him or at least to their a.dvantage to help in the conviction of the Applicant. The scheme c:ontinued at the pre trial, the trial and even after the trial during the certification of the Judgment Rec:ord into the various Courts of Appeals. The scheme at pre trial and trial revolved around At?t?licant's Qf'OQerly and timely filed Motion for Severance of Defendant's and Offenses filed on 7/31/08 whichL was 38 days after the date of the Indictment. That same day at an Ex parte (un- recorded by Court Reporter) Announcement proceeding one of the Judges granted a Motion for Continuance, ·but did not hear or consider the Motion for Severance. The pre trial judge evidently continued the Motion for Severance to 9/25/08 a full 55 days later, 55 days that the Applicant would have used to pllan his defense accordingly had the Motion for Severance had a ruling at the time it was filed and presented to the pre trial court. Janna K. Whately the trial judge had ruled in an Ex parte hearing on thLe Discovery of all of other Applicant's Discovery Motions that had been filed on 5/27.2008 on 7/24/08 which was less than one month after the Motions had been filed.

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Applicant did not appear at the Discovery Proceedings nor did he know about the proceeding. The trial court record will reflect that at a 9/25/08 hearing the Motion for Severance was scheduled for a hearing, however the Pre trial Judge (Wellborn) continued the Motion to a later date. The later date that he set the Motion to continue is questionable because the Applicant's Criminal Docket Sheet shows that a Announcement date was set for 10/03/08, however there is no Recorded Proceedin,g in the trial court Rec:ord for 10/03/08. There is a fraudulent entry 10/30/08 onto the Applicant's Criminal Docket Sheet 1that shows a Ex parte un recorded proceeding where someone entered DX Motion for Continuance 1there is no entry as to the Severance issue. 8lerk did not •enter the Order to Continue the Severance onto the Record. The Record will reveal that at this 9/25/08 pre trial hearing the pre trial Judge set Applicant's Trial date to 11/03/08 which was 3S days away fro1m the 9/25/08 hearing. The trial court record reveals that there was No hearing ever held on Applicant's Motion for Severance Either prior to the trial date of 11/03/08 or after the trial date of 11103/08. The trial court record reveals that 1\P..Plicants; Trial was not held on 11/03/08. The trial court record will reveal no recorded proceedings or written orders or motions that would have continued Applicant's trial to a later date than that Court Ordered trial date of 11/03/08. The trial court record will reveal that startin,g on 10/30/08 (3 days before the trial date was scheduled) the Record of Applicant's pre trial and trial were tampered with when fraudulent entries of Motions, Orders, Reset trial dates and Announcements were entered onto Applicant's Criminal Docket Sheet and onto the Clerk's Record. The trial court record will reveal that even _prior to 10/30/08 the District Clerk failed to enter legitimate Oral and Written Motions and Orders onto the Applicant's Criminal Docket Sheet and the 1Clerk's Record. The trial court record reveals that co defendant Hall's trial date was also set for 11/03/08 however it also reveals thtat Hall's trial date was continued to 1/5/09 at a pre trial hearing on 10/23/08 and

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continued agaiin to 2/09/09 at a pre trial hearing on 12/22/08. See Ex# 8 110/23/08 Court Reporters Record Volume 4 of 11 page 5 line 16-25 amd page 6line 1-3. Judge Johnson continued Hall's trial date to 115/09 and he reminded Applicant's Defense Attorney Gilmore, The State, co defendant Hall, co defendant's attorney Stan TUI])in. and the Clerk of the Court, that he would be back in November to hear AJJ_plicant'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 proce•edings other than his Motion to Dismiss during the entire tine from 6/24/08 to 2/9/09. He did not kno·w 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 11/03/08 . He did not kno·w that Judge Joel Johnson had Severed his trial. It was after the _pre trial hearing on 10/23/08 wh•en Officers of the Court accelerated their scheme to keep Applicant joined for trial by illegally REJOINING him to the trial of his co defendant Hall by tampering with government records, filing fraudullent _proceedings, motions, orders and Reset Trial Dates. Applicant was; tried in a illegal joint trial with the co defendant , found guilty and sentenced to 9•9 years or life and a $10.000.00 fine. The Trial Court Judge certified into the Court of A_p__peals Co·gms Christi, Texas a Fraudulent Judgment Record, that included fraudulent documents, and excluded the fraudulent proceedings that they used to rejoin Applicant's Trial with the co defendant. That same Judgment Record followed Applicant to the 13th Court of Appeals Cot:tms Christiim where he filed his Appeal_. then this Court when he filed his 11.07 Habeas Cmpusl' and again when he filed his Federal Habeas Corpus into the Southern District Houston, Texas .. Throughout tht~ Memorandum that follows you will see through the review of the Trial Court Record itselfjust standling alone that A_p_plicant did not know that Judge Johnson had severed his trial from the co defendant. You will see the use of fraud, tampering with the government records of the trial and

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the violation 01f Applicant's his due process right to a fair and impartial trial, opportunity to be heard, and notice andl how they were used to deceive him to convince him that his Timely filed "Motion for Severance oflDefendant and Offenses" filed 7/31/08 See Ex# 1 had been Denied. The Trial Court Record reveal:s the Fraud, the tampering with the record and the numerous violations of due process used to ille_galJ[y Convict A_p_plicant and to enter a Void Jud_gment a_gainst him. It was not just one Jfficer of the Court that participated in the fraud but all of them. The Trial Court and it's Officer's of the Court committed fraud and violated Applicant's right to Due Process under the U.S. Constitution Amendments 1,5, 6, and 14 and Article 1 and 10 ofThe Texas Constitution. See: Ballard v. Hunter 204 , U.S. 241, 255 (1907). Palmer v. McMahon, 133 U.S. 660,668 0890) and ICC v. Louisville and Nashville R 227 U.S. 88,93-94 0913). and The Administratiwe 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 calculated to i nterfere with the iudicial system's ability impartially to adiudicate the matter of Applicant's pn;:>perly 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 c•ourt 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 ability 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 (r•t Cir. 1989). It 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 (fex. 2003). Each of these conditions occurred at the illegal proceedings in Applicant's Cause No. A-08-5080-4CR.

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APPLICANT'S CLAIMS/ GROUNDS FOR RELEIF Claim# 1.

The State and iit's officers committed fraud, the crime of tampering with a government record and violated Applk:ant's Due Process Rights when first they had Applicant arrested on fraudulent charges, brought the chtarges 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) TP'C Sec. 22.02 Assault/TPC71.02 Engaging in Organized Criminal Activity. Then when they participak::d in a Scheme to convict Applicant of a Crime that they knew he did not commit., again when they participated in a scheme with jailers to divest Applicant ofhis Discovery Evidence Record, privileged de~fense and attorney notes, and again at pre trial when they schemed to maintain a.ioint trial with co d1efendants, then again at a trial where they had no jurisdiction to bring the Applicant before a Jury,mr Bench trial and then enter an illegal void judgment against him ..

Claim# 2.

The Trial CoUlrt 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 Cbaim of Innocence by: Disobedience to the Orders of the Judiciary, relentless repeated fraudulent act:s ofthe filing of fraudulent proceedings, documents, Orders, Motions, and Notices Through Lies., Omissions. Commissions and Concealment. (tampering with government records.) (and) 2..T.aropt'~r.i_og ~rjtb ib.e-~.d.miu.t.~.r.ati.n.u .ofJ.u.~_i.c.r: ib..r.DJ.Jg..b .acis .des..igu.e.d f.o .deg.r.arle ib.e JJ.ulic..i.BJ sys.t.e.m

and lying to fhe Court and to The Tier Of Fact. 3. Certifying a Fraudulent Record into the 13th Court of Appeals, Criminal Court of Appeals Austin Texas, and the U.S District Court Southern District,

Houston Texas Claim# 3.

The Trial Cmurt violated Applicant's Due Process Rights to a Fair and Impartial Trial, Opportunity ·to Be Heard and Notice when the Trial Court:

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1. Disobeyed a Court Order and Failed to hold Applicant's Scheduled Court Ordered Jury Trial Date on 11-J-08.

2. Failed t:o Prosecute 3. Proceeded to a Joint Jury Trial after losing Jurisdiction to Proceed.

4. Violatimg Pre trial and Severance Statutory Procedures Title 1 Chapter 28 Article 28.01Section 1(~) Se:ction 2, CODE OF CRIMINAL PROCEDURE TITLE 1. CODE OF CRIMINAL PROCEDURE CHAPTER 36. THE TRIAL BEFORE THE JURY,Art. 36.09. and Art. 36.10 SEVERANCE ON SEPARATE INDICTMENTS. Texas rules of Civil Procedure Rule 41 JMJ.S\.TDJJ\TDEJ~/SE.VER4J\TCE.

5. TRCP 41 , Criminal Justice Standards Part 11 Standard 13 .2.1 and Sec. 310 6. Violatimg Rules of Evidence 614(3)

'{:ru\ucm:g 'Utrv\. 'CtJ&:'lWte'l C::,·clttc&e D. 'Crf"cep.'S\'2:,~5\.%\ '25dm~ctun ~-

Violating Govt. Code Sec. 51.303 (a)(b) (1) and SubsectionD.(c)

7. Violating TCCP Title 1. Chap. 2 Article 2.01 8". TCCP Titre I Cftapter I Artfcfe T.05 9. Violathng TRAP Rule 34.5 (a), (a)2 Violatung Tx. R. Civ.301 TCCP Title 1. Chapter 28 Section1(5) and Section 2.

10. Tampe.red with the pre trial Court and trial court record Texas Penal Code 37.10

Claim 4.

Ineffective Assistance of Counsel Applicant receiived Ineffective Assistance of Counsel under the 61h 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_p_plicant's Due Process when he lied to his client, to a _potential jury _pool, failed to re_present and defend applicant, participated in a scheme with other officer's of the court to rejoin applicant's triatl to that of the co defendant, failed to notify applicant about pre trial hearings, a_p_peared at he:arings without a_p_plicant's knowledge , misrepresented a_p_plicant at _pre trial hearings and at trial, concealed Orders of the court from applicant failed to secure a hearing and decision <:Jn applicant's Motion for Severance and abandoned applicant's defense and coo_perated wi·th State's attorney to convict and if he in fact filed a Motion for Continuance after 10/23/08 or before the Applicant's scheduled trial date of 11/03/08 or any time after that, he did violate TCCP Article ll.052 (a) and (d) by sigining a Motion for a continuance that was based on a lie, that he and the officer''s of the court perpetrated. . He was ineffective for abandoning the "Running Exceptions" in to a formal Motion in the trial court. And for tampering with government documents a felony under Texas Statute 3 7.10 as it was used to defraud the court.

M:E.MORANDUM 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 (1) Murdeir 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 a joint 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 impiartial trial with opportunity to be heard and notice, when they illegally joined Applicant to Defendants and Offenses. In order that Applicant could be charged as a party to the crime that he was indicted for he must have been charged and convicted in another similar crime with the same co defendant (s). The prosecution knew that he had not been charged or convicted of any other crime that

was similar to· the crime charged in the indictment or commuted with the defendant (s). State has ccess l3

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to all criminal files of applicant and all defendants. The State brought count 2 against Applicant to convince and confuse both the Grand Jury and the Trial 2ourt Jury thmt Applicant was a party to both counts charged in the Indictment and that he was a gang member when in fact they had no evidence of gang related offenses or membership to support the char_ge. Witho1ut evidence the char_ge could not be brou_ght. However there was ample evidence that all other co defentdants 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 jurisdiction and is barred from proceeding SEE; TRCP RULE 41. MISJOINDER OR NON-JOINDER OF PARTIES

Misjoinder of ]parties is not ground for dismissal of an action. Parties may be dropped or added, or suits filed sepatrately may be consolidated, or actions which have been improperly joined may be severed and ea1ch ground of recovery improperly joined may be docketed as a separate suit between the same parties, by order of the court on motion of any party or on its own initiative at any stage of the action, bef«:>re the time of submission to the jury or to the court if trial is without a jury, on such terms as are jwst. Any claim against a party may be severed and proceeded with separately. See also: Crin:tinal Justice Standards Part II Standard 13-2.1 and Sec. 310 Joinder of

their participa1tion in similar offense on different dates with a common third defendant the same transaction or series of transactions test of rule 8(b) is not satisfied. Applicant timely filed his Motion for Severance ofDefendant's and Offenses on 7/31/08. See Ex #1 The trial Corurt 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

15

Court and had no opportunity to be heard or notice. Because the trial court violated US Constitutional Due Process Rights, Statutory Procedures and Tampered wit1h Trial Court/Governmental Records) The trial court lost jurisdiction to proceed to trial. Johnson v. Zerbst 304 U.S 458 Sup.Ct.1938/: Fay v. Noia 372 U.S. 391 63 S. Ct. 822 9 Led 2d, Aoude v. Mobil Oil Corp. 892 F. 2d 1115, 1118(1st Circuit 198~). Alexander, 266 S.W. 2D@ L001:King Ranch, Inc. v. Chapman, 118 S.W.3d 742,752 (Tex. 2003)

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 s:tates:

§ 19.02 Mlffi:.DER. (a) In this section: 1)"Adequate cause" means cause that would commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper, sufficient to render the mind incapable 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 ofthe offense and is not s.olel~ the-tesn]t of fomre.r.1ftavocat.inu.. (b)A person commits an offense if he: (1) intentionall.y or knowingly causes the death of an individual;

(2) itttetrds M CStY:re ~ ~, itrj«ry' and amtmit.r Bit set dear/j' ~ M /nimat1 life that causes the death of an individual; or (3) commits or attempts to commit a felony, other than m:anslaughter, and in the course of and in furtherance of the commission or attempt, or in

immediate flig~ht from the commission or attempt, he commits or attempts to commit an ac1

clearly dangerous to human life that causes the death of an individual.

(c) Except as provided 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 imm1edia:te influence of sudden passion arising from an adequate cause. If the defendant proves the issu.e in the affirmative by a_pre_ponderance of the evidence, the offense is a felony ofthe second degree ..

16

APPLICANT'S Claim UNDER 1,2 and 3 The State and the trial committed fraud and fraud upon the court when after the Jury found 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 indictment does not allege that Applicant committed the murder under Texas Penal Code 7.01, 7.02, or 7.03 im connection with the charge of murder under Texas Penal Code 19.02. See Ex# 2 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 ofMurder. The 2harge of the Court looks little like what Texas Penal Code 19.02 requires 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 jurors and to convict Applicant. 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

l.

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

2.

A person acts lmowingly, 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. (Nowhere under statute 19.02 is this statement found)

17

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. (Nowhere under statue 19.02 is this statement found. A "deacdly 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.

(There is absolutetv nothin,g in number 3. that comports with Penal Code 19.02 Murder:)

Our laws proviide that a person is criminally responsible as a party to an offense if the offense 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 promLote 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 crirr1e.

FACT3.

CAPIAS AND WAIVER OF ARRAINGMENT

On 6/25/08 a aCapias was issued under Applicant Chadrick B. Pate's Cause No. A-08-5080-4 CR See Ex# 3 Applicant's Criminal Docket Sheet.

The trial court violated Applicant's Due Process when they issued a capias and confined him under a fraudulent indictment. The Grand Jw::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 11 Standard 13-2.1 and Sec. 310 8(b) and they could not. A_p_plicant does not have access to the courts files arrest records of all the co defendant's and his own and therefore canUtot include in the exhibits, but the trial court has copies. When the court violates due process it loses jurisdiction and cannot proceed. Fay v. Noia 372 U.S. 391 63 S. Ct. 822 19 Led 2d.

FACT4.

WAIVER OF ARRAIGNMENT

On 6/27/08 Wativer of arraignment was entered onto Applicant's Criminal Docket Sheet See Ex# 4 A.P..Plicant's Criiminal Docket Sheet. NO CLAIM

Fact 5.

PRE TRIAL DATE AND ANNOUNCMENT DATE COURT REPORTER'S RECORD (NONE)

On 7/10/08 en1tered onto Applicant's Criminal Docket Sheet is Ex# 4

Case Set Pre t1rial 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

Applicant did mot appear at these proceedings and his Defense Attorney did not notify him or give him notice. Ex parte hearings were held violating due process of law. Applicant's due process was violated when he was not allowed to appear, and be heard and notice. There is no re1corded record of this proceeding. A court loses jurisdiction when it violates due process and loses jurisdiction. 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.

J.8

19

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

Fact3

7/24/08

DISCOVERY RULED ON In Ex parte Hearing COURT REPORTS RECORD (NONE)

On 7/24/08 Entered onto Applicant's Criminal Docket Sheet is Discovery Ruled On

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 im_partial fair trial, o_p_portunity to be heard and notice and violation of statutory

rule . There is :no recorded record of this proceeding. However there are Discovery Orders that Judge Im:ma.. Wbat.ely s.i.Pc:Jlt!d.

Applicant's dm~ process was violated, and this proceeding was concealed from him. TCCP Title 1 Chapter 1 General 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 0 )5 and Section 2 also see Fay v. N4oia 372 U.S. 391 63 S. Ct. 822 9 Led 2d , Aoude v. Mobil Oil Corp. 892 F. 2d 1115, L118(r• Circutit 1989). Alexander, 266 S.W. 2D@ 1001:King Ranch, Inc. v. Chapman, 118 S.W.3d 742,752 (Tex. 2003).

Y:ui4

7/31108

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

On 7/31/08 en1tered onto Applicant's Criminal Docket sheet is Ex#4 Cont. Granted Ann. 9/25/08 J.T. 9/29/08.

20

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

There is no rec:orded record of this proceeding. Applicant did not appear at any proceeding on 7/31/08 he did not know 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 Applicant's dute process rights to an impartial fair trial, opportunity to be heard and notice. And 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 , Aomde v. Mobil Oil Corp. 892 F. 2d 1115, 1118(1 st Circuit 1989). Alexander, 266 S. W. 2D @ 1001:King Ranch, Inc. v. Chapman, 118 S.W.3d 742,752 (Tex. 2003).

Fact 5.

7/31108

Applicant's Motion for Severance of Defendant's and Offenses It is not Recorded on Applicant's Criminal Docket Sheet EX # 4 Violation ,of Clerk's Duties Rule 25 and 26 and Tampering with Trial Court/Governement Document

Al}~&ant. filed)_ a_ ti.n:lel~ Mntinn. fut Seveta.n.ee nf Defu.nillm.t.'i and. Offeo.cre.'i nn. 711110& 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 o~iect and Court did not correct. When a court violates due _process it loses jurisdiction 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

21

S.W.3d 742,75i2 (Tex. 2003).

Fact 6.

9/25/08

2ourt Reporter's Record Volume 2 of 9 Announcement Chadrick B. Pate A-08-5080-4CR See Ex# 5 Exparte Hearing

States Motion for Continuance Applicant's Request for a Decision on his Motion for Severance of Defendants and Offenses. Judge Wellborn s Reason for Continuing the matter of the Motion for Severance to the next Pre Trial Hearing. District Clerk Duties and Reset Dates

On 9/25/08 entered onto Applicant's Criminal Docket sheet is Ex # 4 States Motion 1to Continue Granted Reset 1113/08 Jrury 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, Tampering with Trial Court/Government Document

Gilmore and State's Attorney M. Rodriguez. Applicant did Jnot know about this hearing and did not appear. TCCP Title 1 Chapter 1 General Provisions Anrticle 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 Applicant's case he had a right 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 Anrticle 1.05 Rights of Accused. He shall have the right of being heard by himself or

S.W.3d 742,75i2 (Tex. 2003).

Fact 6.

9/25/08

2ourt Reporter's Record Volume 2 of 9 Announcement Chadrick B.Pate A-08-5080-4CR See Ex# 5 Exparte Hearing

States Motion for Continuance Applicant's Request for a Decision on his Motion for Severance of Defendants and Offenses. Judge Wellborn s Reason for Continuing the matter of the Motion for Severance to the next Pre Trial Hearing. District Clerk Duties and Reset Dates

On 9/25/08 entered onto Applicant's Criminal Docket sheet is Ex # 4 States Motion 1to Continue Granted Reset 1113/08 JTury 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, Tampering with Trial Court/Government Document

Gilmore and State's Attorney M. Rodriguez. Applicant did mot know about this hearing and did not appear. TCCP Title 1 Chapter 1 General Provisions Am·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 Applicant's case he had a right 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 Am·ticle 1.05 Rights of Accused. He shall have the right of being heard by himself or

22

counsel or both. At this hearing The State filed a Motion for Continuance and Judge Wellborn Granted the Motion Atltorney John Gilmore Applicant's Defense Attorney requested a Decision on Applicant's

Motion for Steverance of Defendant's and Offenses that had been filed timely on 7/31/08. See Ex #5 O!urt ~rt·&~ R2.:1ud vlll 2. Q.( 9 ~e~ ll.i.ne 9-2.5. awl ~e 4 l.i.ne~ l-~

Judge Wellbona continued the Matter of the Severance stating that the reason was that he was waiting to find out ifhce was going to need to appoint the Co defendant Christopher Hall a new attorney. See

Ex#S page 3 lines 13-18. Judge Wellborn gave no valid reason to continue the matter of the Severance.

Alibnngb JJ.Idg-e Wcllhru:o _had cfl.IJ1i.ru.Jed ibe Matter .of the .Sever.ance ibe District ('Jerk did .nnt. enter the Order to Continue the matter of the Severance onto the applicant's criminal docket sheet or the trial court record (tampering with a trial court document) but Judge Wellborn DID sign and date and Order Granting a Severance that same day. Ex# 6 Order Granting Severance. Judge Wellbonn made no effort that day or any day to reverse the Order Granting the Severance .(Tampering with a trial court record. government document. When a judge does not follow statutory procedures he 'Violates the defendant's ri_ght to due _process and loses jurisdiction to _proceed. Fay v. Noia 372 U S 391 63 S. Ct. 822. 9 Led 2d. The District CLerk did not first enter the Oral Order of Judge Wellborn to continue the Matter of the Severance onto A_P..plicant's Criminal Docket Sheet, or the trial court record nor did the Clerk enter the

did the clerk nnake 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 (tampered with the trial court .gowemment record and certified it as an Overruled Motion on the Severance and then certified it into The 131h Court of Appeals Corpus Christi, Texas then later told Applicant's Habeas Investigator Stacey Deville See Ex # 7 Deville's Affidavit, that the Granted Order was just a piece

23

of paper in theApplicant's file. The District Clerk committed fraud upon the court for purposeful failing to complete the duties of the office and connmitted the crime of tampering with the trial court/government record.. The District Clerk with othter officer's of the court by this failure illegally disposed of first Judge Wellborn's Oral Order, that ordered the Motion for Severance to be continued to another date, ille_gally dis_posin_g of the 3-ranted Orde1r on the Motion for Severance by retaining it in the file. Then later by illegally disposing of Judge Joel Johnson's Oral Order severing Co defendant's trial from Applicant's trial date, See Exli 8 Court Re_pcorter's Record Volume 4 of 11 _page 5 lines 14-25 and _page 6 lines 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 Orders of the Court from the Court and the Applicant . . Fraud is defi1ned as trickery or deceit, intentional misrepresentation concealment or nondisclosure, for the purpos.e ,of inducing another in reliance upon it to part with some 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 another so that he shall act upon it to his legal injury. (li!mphasis added) In re: E.P. 185 S.W.3d 908 (Tex. App. -Austin 2006). 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_proceedin_gs ofthe court and enter all judgr:nents of the court under the direction of the judge. Govt. Code Sec. 51.303 Duties of the Clerk. In a Post Conviction Letter dated October the 51h 2012 See Ex# 9 Letter from Judge Wellborn { i1n Response to Habeas Attorney Carrie Crisps letter Ex# 10 to him asking for an explanation im Response to Habeas Attorney Carrie Crisps letter Ex# 10 to him asking 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

24

decision (tampering with a trial court/government record) and by this time the Court of Appeals had already deniedlApplicant's Appeal. Applicant did not waive his right to appear at pre trial proceedings . This was an an.nouncement where Applicant'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 strate_gy. There was no reasont that the motion could not have been decided that day. The State's attorney had not made any objection to the Motion for Severance either that day or any day _prior to 9 25/0•8. Applicant filed his motion on 7/31108 and certified a co_py to the States attorney. See Ex # 1 page 2 .. Neither Judge 'Wellborn John Gilmore or the State questioned why defendant was not present at the hearing thus the hearing was held Ex parte because Applicant had a right to be there and to 'be heard . . The Manner ,i[n 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 definted as that fraud committed b_y an officer of the court in an_y attempt to deceive, either b_y commission, by omission,by speech, by silence, by gesture, by innuendo by look, etc. Whenever this fraud is commLitted 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 (198~): Re_genold v. by Fol«:l, 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 oE inducing another in reliance upon it to part with some calculable thing belonging to him or a false repn~sentation of a matter of fact b_y words, conduct or b_y 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

25

injury.(empha1sis added) In re: E.P. 185 S.W.3d 908 (Tex. App. -Austin 2006) Title 1 Chapt,er 28 Article 28.01 Pre Trial Section 1. (defendant's presence is Reguired at any pre trial hearing) 4(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 datys 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 tria.! record of the case u_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 shov.ving of good cause, but a continuance may be only for as long as necessary. TCCP Title 1 'Chapter 1 General Provisions Article 1.05 Ri_ghts of Accused. He shall have the right of being 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 of 9 Chadrick B. Pate A-08-5080-4CR Motion to Dismiss EX# 11 Entered onto Ap_plicant'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

26

trial proceedimg that he was allowed to appear) Defense Attorney John Gilmore and States Attorney M Rod_grigez. This hearing was on Applicant's Motion to Dismiss the Indictment for the Jail and Detectives violation of his 6th Ame1ndment due Process and Violation of Attorney Client Privilege. All prisoners were transported to anotherjail in Crystal City due to a Hurricane Warning. and before the State trans:ported Applicant he prepared all of his Notes that he had made for his Defense Attorney on his Defense. He had records on discovery at this point and was able to rebut co defendant's claims. Before leaving for transport the jail told A_p_plicant 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 :a clear plastic bag and label it with his name and the title of the papers and then to place it on to_p ofhis bunk. He did so. When he returned, his bag of_pa_perwork was missing. He demanded it back and supp(osedly the jail personnel said they looked but could not find it. Applicant was told by an Honest Jailer that he had seen two of the other jailer take it out to a dumpster and place it there and afterward he s.aw two of the Investigators retrieve the ba_g form the DU!llpster. Judge Johnson Denied the Motion to Dismiss without written order, he did not record any factual findings on th1e record for his Decision to Deny Applicant's Motion. When a judge does not follow

statutory ~proct~dures, he loses jurisdiction to ~proceed. Fay v. Noia 372 U.S. 391 63 S. Ct. 822 9 Led 2d. John Gilmore ..:dd not ask Judge Johnson for a Decision on Applicant's Motion for Severance of

Defendant andB. Offenses however Judge Johnson told Gilmore that Applicant's trial date was for 11/03/08 and that he would be the Presiding Judge. See Ex# 11 page 33 line 8-21

Fact 8.

10/23/08

Ex Parte Hearing

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

27

Entered on Chuistopher Hall's Criminal Docket sheet is Ex# 12 Reset: 115/08 9~.ooam 12/22/0)8 9.00am 11/25/08 9.00am

APPLICANT'S CLAIM UNDER 2,3 AND 4 FRAUD 01~ 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 Applicant's Defense Attonney.. The Applicant did not appear. Stan Turpin co' defendant Christoper Hall's Defense Attorney (he was co defendant's second court appointed atto,rney. The first court appointed attorney was Tamara Cochran who was hired at the County AttornLey's office and could no longer represent Hall) asked for a Continuance and Judge Johnson granted the co defendant's Motion to Continue and Reset his Jury Trial Date to 1/5/09,

Announcement 12/22/09 and Pre trial11/25/09. See EX# 8 Volume 4 of 11 page 3 line 22-23 page 5 line 1-25. pa.ge 6 line 1-24.

Rigbt.afJer Judge Jnhn.c;;ao gr.ante!l ibe .crultin~e,. _Mr. G.ilronreApp.licant.~" .affru:oey Mid tn Judge Johnson, Judge I have a co defendant in this matter,and then immediately The States Attorney told Judge Johnsona that they would like to carry Applicants case as well. Judge Johnson told John Gilmore that he was hLearin_g A_p_plicant's case when he came back in November. See page 5 lines 15-25 and page 6 lines l-6. Judge Johnson had already told Gilmore at the pre trial hearing just prior to this one that he was coming back in November to hear Applicant's case and he had reaffirmed the trial date o•f 11/3/08. John Gilmore abandoned A_pplicant's defense and assisted the State's Attorney in ant 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

28

hearings and tlhat he had not waived his rights to appear, and they continued to appear at proceedings where his defe1nse 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 been defined as that fraud committed by 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" In Eugene Le~e Armentrout et. al.;, Ill. 2D 242 75 Ill Dec 703 457 N.E.2d 1262 (1983): Regenold v. Baby Fold, Inc., 68 Ill. 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); Bulloch v. United States k 763 F 2d 1115,1121 (1985); Root llRef"ming Co. v. Universal Oil Products Co., 169 F2d 514 (1948). Clearly Judge .Johnson had severed the cases and the trials of Applicant and the co defendant when he made it clear to the State's Attorney that Hall's new Trial Date would be 1/5/09 and that he was corning back in Novennber to ~preside over f\p_plicant's Trial that had been set for 11/3/08. The District Cllerk did not enter Judge Johnson Oral Order that severed the cases onto Applicant's Criminal Docket Sheet or onto the trial court record. Only the Court Reporter's Record Ex# 8~ reflects the Severance. See Article 36.10 TCCP The District Cllerk did not issue a new Cause No. on either Applicant's case or co defendant case. (Tampering with a trial court. government document.) 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 115/09 far ahead of Applicant's 11/03/08 trial date. The District Clerk committed fraud upon the court for purposeful failing to complete 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 ord(:!r severing Co defendant's trial from Applicant's trial date. The failure to enter the proper

29

proceedings cmto 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 so, me calculable thing belonging to him or a false representation of a matter of fact by words, conduet or by concealment of what should have been disclosed that deceives or is intended to deceive anoth1er 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 2006). The Clerk of the Court has custody of and shall carefully maintain and arrange the records relating to or lawfully depo:sited in the clerk's office the clerk shall record the acts and proceedings of the court and enter all judgnnents of the court under the direction of the judge. Govt. Code Sec. 51.303 Duties of the Clerk. Although Judge Joel Johnson did not hold a statutorily required hearing and enter factual fmdings on the record, andl a Written Order Granting or Denying At?t?licaht's Motion for Severance, he did sever the trial of Ap]plicant and the co defendant by his Oral Orders .. When a judge does not follow statutory

requirements ]he loses jurisdiction and cannot proceed. Fay v. Noia 372 U.S. 391 63 S. Ct. 822 9 Led 2d, Aoude v. lltvlobil Oil Corp. 892 F. 2d 1115, 1118(1 st Circuit 1989). Alexander, 266 S. W. 2D @ 001:King v. ~lanch, Inc. v. Chapman, 118 S.W.3d 742,752 (Tex.2003)

.F..a.cl_9~

10/30/08

"f·Rh\~l~Y0L£~H £Xlli\R1:£ l}ROC££n~VQ'b £~H£TRt:,n 0AH'0 J\l?l}"Ll£h~H''b C~l1.~~h"L DOCKET SHEET SEE EX# 4

CCOURT REPORTER'S RECORD ON 10/30/08 PROCEEDJNGS (NONE)

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

30

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

Applicant did mot appear or know about any proceedings for 10/30/08 If these proceedings did occur then they were: in fact EXPARTE proceedings and unrecorded by a Court Reporter. Applicant's attorney did not advise him of any t>roceedings and did not tell him about any continuance. If defense attonery John Gilmore did in fact file a motion for continuance (and there is no record of one being filed) the he vi,olated TCCP Article 1.052 (a)(d) which is contempt of court.

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. 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 appeared to allow the court to proceed was in violation of the 1st amendment to the Constitution. Near Minneso•ta 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 (194~).

Jnce 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). A court's jurisdiction at the beginning of trial may be lost in the court of the _proceedi.n_gs due to com_plete the court as the 14th amendment reguires. If the U.S. Constitution

amendments mre not complied with the court loses jurisdiction to proceed. Johnson v. Zerbst 304 U.S.. 4.SJ!~ Ct. t'lYl.

The District Cl_erk entered fraudulent proceedings onto the Applicant's Criminal Docket Sheet and perhaps onto other Court Records that have been concealed from him. The District Clerk committed fraud on the c1ourt and the Applicant. The District Clerk committed fraud upon the court for purposeful faillure 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

31

Applicant's triial date. The failure to enter the proper proceedings onto the applicant's criminal docket sheet and or fue trial court's record concealed the Order of the Court from the Court and the Applicant. Fraud is defin·ed 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 re..Presentation 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) The Clerk of the Court has custody of and shall carefully maintain and arrange the records relating to 01 lawfully depo:sited in the clerk's office the clerk shall record the acts and proceedings of the court and enter all judgnnents of the court under the direction of the judge. Govt. Code Sec. 51.303 Duties of

the Clerk.

Fact 10.

11/03/08

Sclheduled Trial Date for Applicant Chadrick B. Pate in Cause A-08-5080-4CR Court Reporters Record 11103/08 Trial Proceedings (None)

Courts Violation of it's Court Ordered Tr.lal Dat.e 0-£ U/1/Q& In. Cause. NcL A-08.-508.0-4CR Cbad.J:U:k.. B Pat.e R£.Q.nrters. R£.cnrd Vnbun.£.1 of9 Ex# 5

APPL1CrL¥T'S CLAR~l VNDER 2,3, rL¥» 4 Fraud on the Court by the Court, Ineffective Counsel Violation of Due Process and Statutory Procedure and Rules.

The court did not provide a court ordered jury trial for the applicant on 11/03/08 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. There are no Written or Oral Orders that would indicate a change in Applicant's 11/03/08 scheduled and 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

32

complete tlhe court as the 141h amendment requires. If the U.S. Constitution amendments are not COII\Plied 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 ~proceedi.n_gs other than Acguittal. 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 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. f!~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.(l933). See: Fa_y v. No•ia 372 U.S. 391 63 S. Ct. 822 9 Led 2d , Aoude v. Mobil Oil Corp. 892 F. 2d 1115,

742,752 (Tex. 2003).

F"K\.ot 11.

11/25/08

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

FRAUDULENT EX PARTE 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 Atton:1ey Stan Turpin and State's Attorney M. Rodrigues. Applicant Chadrick Pate did not appear nor did his Defense Attorney John Gilmore. Applicant was not

33

before the cou.rt for adjudication the court had already lost jurisdiction, and these proceedings were ex parte proceedings. Mapco Inc. v. Forrest, 795 S. W. 2d 700, 703 (Tx. 1990).

At this proceeding Judge Wellborn, Stan Turpin and M. Rodrigues discussed Applicant's pre trial motions and t1rial date when he was not present or represented. The Court had already lost iurisdiction over Applicant and the Subject Matter, and committed fraud on the court by the court in having thes(; discussions that would make it appear that Applicant was still in the jurisdiction of the court. A court's jurisdiction at the beginning of trial may be lost in the court of the proceedings due to complete the court as the 14}1h amendment requires. If the U.S. Constitution amendments are not complied with the court loses juri[sdiction to proceed. Johnson v. 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 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!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.(1933). SEE Reportf!rs Record Vol 5 of 11 page 4 lines 1-13. Judge Wellborn ask when Pates trial date is scheduled Stan Turpen answers Right now on January the 51h. Judge 'Wellborn responds Okay well both cases on the same trial docket at this time? M. Rodriguez re~10onds Yes_. _your Honor. Judge Wellborn responds Ok~y well its kind of hard 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 Deputy Clerk responds And also Mr. Gilmore is not Sl.!P~posed to be here on the 5th. He will be

34

on vacation til the 9'h 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 sever unless his client told him otherwise , but I haven't talked back with him to know that, and I dom't think he has a motion on file. At the time of lthis discussion ~p~plicant'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 700, 703 (Tx. 1990).

The trial court and it's officers had already begun entering and concealing fraudulent proceedings, motions. Orders, and trial dates onto Applicant's Criminal Docket Sheet. This discussion among officers of the court without appearance of Applicant and his Attorney is fraud and a violatiom 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. JOHNSON '1. ZERBST 304 U.S. 458 Sup. Ct. 1938 and Fay v. Noia 372 U.S. 391 63 S. Ct. 822 9 Ledl 2d , Aoude v. Mobil Oil Corp. 892 F. 2d 1115, 1118(rt Circuit 1989). Alexander, 266 S.W. 2D@ 1001:KingRanch, Inc. v. Chapman, 118 S.W.3d 742,752 (fex. 2003).

Y.»d J2

12/22/08

'tRh\)'L>L£~·H £-x-9-hl\.1£ "?ROC££'L>"'rl~ffi £1H£l\£'L> ~1~ "'O~TH. .h"?"?Ll'Chl~l' 'Clih'L>Rl'CK "'0.

PATE AND CO DEFENDANT CHRISTOPHER HALL'S CRIMINAL DOCKET SHEETS

S"EEEX#·4·

AND EX# 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 Granted Reset 2/9/09 Jury Trial 2/5/09 Announcement

35

On Co Defendant Christoper Hall's Criminal Docket Sheet the following fraudulent proceedings are entered. Ex# 12 12/22/08 Contiinuance Granted.

Resett to Feb. Trial Docket

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

Applicant did mot 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 AND THESE HEARINGS WEJ~E. EX .P.~iRTE. ."M.spctl J»e~ "- Ytv".rJ>N,- 795 .S.. W.. 2iJ 7Df\. 7ft3 fT.L J991l,\-

Applicant does not know if co defendant asked for a continuance or if he appeared at any 12/22/08 proceedings, hwwever the Trial Court Record clearly reflects that there was no such proceeding~ recorded on thte record of the court. These illegal e:ntry'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 _iurisdiction over the Applicant and the sub.iect

calculated to interfere with the judicial system's ability impartially to adjudicate a matter by improperly init1uend.ng the trier of fact or unfairly hampering the presentation of the opposing party's claim or defemse 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 alreaqy lost jurisdiction for the violation of the A_p_plicant's 14th amendment rights. Johnson v. Ze:rbst 304 U.S. 458 Sup. Ct. 1938.

Fact 13.

2/5/09

36

FRAUDLENT EXPARTE PROCEEDINGS ENTERED ONTO APPLICANT'S CRIMINAL DOCKET SHEET SEE EX # 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 ReadJv (TAMPERING WITH A TRIAL COURT/GOVERNMENT RECO~)

APPLICANT'S CLAIM UNDER 2,3 AND 4 F~awl Q.Q. tb.~ Ow.rt b.~ tb..e O!.urt., l~"~ Oluu.~ Vi.lil.atin.o.. Q.( D~ 1.1~~~~ awl Sta.tu.in.~ Procedures and Rules

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 ham_p,ering the _presentation of the o_p_posing_parcy's claim or defense. Aoude v. Mobil Oil Corp. 892 F. :ld 1115, 1118 (1st Cir. 1989). Applicant did not know about any such proceedings and did not appear at any such proceedings and was not told by his attorney or the Court about any such _proceedings. He did not announce ready. Applicant was not before the court for adjudication the court had already lost jurisdiction. THESE WERE ILLEGAL EXPARTE HEARINGS Mapco Inc. v. Forrest, 795 S. W. 2d 700, 703 (Tx. 1990)

Fact 14.

2/5/09

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

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

This hearimg 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 numbers in the trial court recorded proceedings. SEE EX # 15 page 2 of Reporters /record Volume 1-11 MASTER INDEX

FACT 15

2/5/09

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

20NCEALMENT OF FRAUDULENT PROCEEDINGS FROM APPLICANT, PUBLIC CRIMINAL COURT OF APPEALS AND THIRTEENTH COURT OF APPEALS AND SOUTHERN DIST.

COURT HOUSTON TEXAS

APPLICANT'S CLAIM UNDER 2,3, AND 4 Fraud and Fraud om the Court, Ineffective Counsel, Violation of Due Process and Statutory Procedur,es and Rules And Tampering with Trial Court/Government Document/Record

Co defendant Christoper Hall's Ex# 16 Indictment, Ex# 12 Criminal Docket Sheet, and all other . Court Report·er's Records 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 Volumes 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.

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-

., ..L . .a. .a; .

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

See EX# 15 3RD PAGE TABLE OF CONTENTS

Volume 1 of 1lll Master Index Volume 2 of 11 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 11 Pre Trial Hearing (10/23/08)

Volume 5 of 111 Pre Trial Hearing (11/25/08)

Volume 6 of 1Jt · Jury Trial Voir Dire Proceedings (2/9/09)

VnJnnu~ 1 nf 111 .Jnry T.riaJ Gnili J.DDD!'nJU (.2/..9./R9) Volume 8 of 11 Jury Trial Guilt Innocence (2/10/09) Volume 9 of 11 Jury Trial Guilt Innocence (2/11/09) '1\'la"tl1M; 1~ m 11 3uTj '\:TWA {;>t.Wi. \~ \1.~11.~)

Volume 11 of JU Punishment-Sentencing (2/13/09)

38

2/5/09 Court Reporters Record Volume 5-A of 11 was not recorded onto the Table of Contents of co defendant's Judgment Roll like all the other above listed volumes were, and was not submitted to The 13 1h 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 Court of Appeals (Tampered with trial court/governm.ent document.) This fraudulent Cause No entered onto the Court Reporters Record and frawiu.lmt 'I"O.b..UlJi! tlJ.l.JXINJ: 1.~ ~- o.f tbi! ~...br..rol! tbm. tbi! o.ffiJ~r.·~ o.f the OOJJ.rt. ~id.~£d.l.t~. t.n oot~~..al. proceedings from the court and applicant and influence the tier of fact, and deceive any future proceedings he:ld by any other officer's of the court. THIS IS TAMPERING WITH A GO~'ERl,ThlE/.~.{T lXJCU!~lENT lFHlCH lS A CRli~lE.

At this hearing Trial Judge Janna Whately presided and those that appeared were Co defendant Christopher Hall with his Attorney Stan Turpin, State's Attorney Patrick Flanigan, and Applicant's Defense Attonney John Gilmore. A_p_plicant did not a_p_pear. A_p_plicant was not before the court for adjuration the court had already lost jurisdiction. THIS WAS AJ\;J ILLEGAL EXPARTE PROCEEDING DISCUSSING APPLICANT'S TRIAL AND CAUSE WITHOUT HIS A_p_pearance MAPCO Inc. v. Forrest, 795 S. W. 2d 700,703 {Tx. 1990). Judge 'Whatley 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 readly for trial this scheme included ke~ping the A_p_plicant and the co defendant joined for the trial held em 2/9/09. Officer's of the court continued their scheme to defraud the court and the appJicant and 1to influence the tier of fact. Fraud occurs when a party sets into motion a scheme calculated to iJnterfere with the judicial systems' ability inlpartially to aqjudicate a matter by improperly in1fluencing the trier of fact or unfairly hampering the presentation of the opposing party's claim or defemse. Aoude v. Mobil Oil Corp. 892 F. 2d 1115, 1118 (rt Cir. 1989). The Court hadl already lostjurisdiction for the violation of the A_o._plicant's 14th amendment ri_ghts. JOHNSON V.. ZERBST 304 U.S. 458 Sup. Ct. 1938. The court had no jurisdiction to proceed to a joinJ trial or a separate trial of Applicant or to hold any other proceedings other than Acquittal. The trial court~ was without jurisdiction to _proceed that parties may have agreed to it are immaterial. The verbal, w1ritten or illegally disposed of order, that appeared to allow the court to proceed was in

39

violation ofthe P 1 amendment to the Constitution. Nearv. Minnesota ex rei. Olson, 283 U.S. 697,51 S. Ct. 625, 7S L.Ed, 1357 (1931), Shelly v. Karmer, 334 U.S. 1. 68 S. Ct. 836 92 L. Ed 1161 (194~).

Once a court orders per 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 trialL hearing Judge Janna Whately did not call Applicant's Name or Cause Number, she did not call co defendant Hall's name or cause number. However at the very beginning of the proceedings Flanigan anno,unced Ready on Hall see Ex#l4 page 3lines 3-5. Flanigan never announced ready on Pate, and Johm 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 f?'age 31ines 8-13. Judge Whately'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 iurisdiction over Applicant or the Subiect Matter at this time, the court had already lost jurisdiction for violating Applicant's 14th amendment to a fair and impartial trial, opportunity to be heard, and nottice. Johnson v. Zerbst 304 U.S. 458 Sup. Ct. 1938.

FACT 16.

2/9/09. The Illegal Trial of Applicant

FRAUDULElNT PROCEEDINGS OF JOINT JURY TRIAL OF APPLICANT CHAD RICK B. PATE AND CO DEFENDANT CHRISTOPHER HALL

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

Trials of A_pjJlicant and Co defendant Hall and in s_pite of a Pending Motion for Severance in the _pre trial court, Judge Whately and Officer's of the Court simply set about

jurisdiction o·ver the Applicant and the subject matter and then tried him in an illegal proceeding that they submtitted as a fair and impartial Jury trial.

40

Be(ore the triall 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 Wlother 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 bein_g 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 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 D:ire 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 E:x# 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 , Applicants 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 Mother 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 Inv,oking Rule 614 Under this rule at the request 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 1110tion. This·rule does not authorize exclusion of (3) a person whose presence is shown by at _paey to be ess:ential to the _presentation of the _party's cause. The Court violated Applicant's right to be heard and not:iice.

41

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 testizy. Applicant was brought to the trial in Leg Restraints. There is no Court Order ordering him to wear Leg 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 in jail 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 Due Process rights and corrunitting 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 s.everance. See Ex# 20 Trial Transcript Reporters Record Volume 6 of9 pa_ge 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 Applicant'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 Applicant's Mrother could not reach them. Applicant would not allow his Mother to testizy 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 A4?-?11.c:IDJ~'s. Ri<~,b1. t.11 UlJ£. l?tQI'.£.~~ lJ.Dili'.J: OOtb. tbi!. '(eya~ Cmtstit.ut.iroJ.::.u:IJi tbi!. TJ. S.. O!t~Bfit.JJtjn.TJ•.

THE EVENTS AFTER THE TRIAL AND CERTIFICATION OF APPLICANT'S JUDGMENT AND CERTIFICATION TO THE 13TH COURT OF APPEALS CORPUS CHRISTI, TEXAS

FACT 17

FRAUDULENT RECORDS IN CERTIFICATION-OF APPLICANT'S JUDGMENT ROLL TO THE l3TH COURT OF APPEALS CORPUS CHRISTI TEXAS , CRIMINAL COURT OF APPEALS, AUSTIN, TEXAS AND THE U.S. DISTRICT COURT SOUTHERN DISTRICT OF TEXAS AT HOUSTON TEXAS

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

FRAUDULENT RECORDS IN CERTIFICATION OF APPLICANT'S JUDGMENT ROLL TO THE 13TH COURT OF APPEALS CORPUS CHRISTI TEXAS

On June 24th 2009 The District Clerk Pam Heard and Presiding Judge Janna K.Whately certified Judgment Records to the 13th Court of Appeals Cotpus Christi,. Texas . Judge Whatley certified See EX# 24 Judgre Whately's Certification the proceedings that were held, instruments and other papers that were filedl in cause A-08-5080-4 CR Chadrick B Pate.See EX# 14 INDEX CHADRICK B. PATE A-08-51080-4CR _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 said had not bteen filed and was just a _piece of_pa_per 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

42

Certification. By submitting the Order on the Motion for Severance Judge Whately and Pam Heard committed Fraud on the Court and Tampered with a Trial Court/Government Document.. Th~ Index (Judgment Record in A-08-5080-4CR) that Judge Whately and Pam Heard submitted to the Court of Appe:als 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 re.corded as held and filed in Cause No. A -08-5080-4CR on Applicant's Criminal Docket Sheet See Ex# 4. The illegal Proceedings that Judge 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 A_p_plicant (on 11/3/08. These events stijJulate a tampering of government documents. The listed Proceedings had to be Concealed from the Court of Appeals otherwise the Fraud committed against the Applicant :and The Court of Appeals, Criminal Court of Appeals and the Federal Court would have been rev<ealed and A_P._plicant's conviction would have been Overturned long ago. The Judgment for Chadrick B. Pate Cause No. A-08-5080-4CR does not conform to statutory rules.

See: Trap Rule 34.5 (a) states Contents Unless the parties designate the filings in the appellate record by agreement under rule 34.2 the record must incclude copies of the following:Trap Rule 34.5 (a) (2) Indictment or Information. Any Special P'lea or Defense Motion that was presented to the court and OVERRULED Any Written \Vaiver, any written stipulation and in case in which a plea of guilty or nolo contendre any· documents entered for the plea. The Motion fo:r 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 that he signed by mistake and the same order that The District Clerk had called just a piece of paper in

43

the Applicant"s file. And the Court Index Judgment does not include all of the Fraudulent Proceedings entered on A.PlPlicant'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 any and shall be so framed as to give party all relief in which he is entitled either in law or eguity . Judge Whately and the District Clerk violated Applicant's Due Process right to a fair and impartial Appeals Proce:ss, to be heard and notice and committed fraud on the Court, the l3 1h Court of Appeals, The Court of Criminal Appeals_,. Austin and the U.S. District Court for the Southern District of Texas_,. 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 Appeals Process would be denied. "Fraud is defilned 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 by 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 ~pon 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 COllie Sec. 51.303.Duties of the Clerk (a)The clerk of a district court has custody of and ;hall 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 judgr.nents of the court under the direction of the judge. also see Govt.. Code Title 2 Subtitle D. Chap. 51 Section 51.901 Subsection J. showing: It is the duty of the Di:strict clerk if the clerk has reasonable basis to believe in good faith that a fraudulent document or instrument has been previously filed or recorded or offered or

44

submitted for :filing or for filing and recording is fraudulent, the clerk shall:(l) ifthe document is a _pm:ported judgment or other document purporting to memorialize or evidence an act, an order, a directive, or process of a purported court, provide written notice of the filing, recording , or submissiom for filing or for filing and recording to the stated or last known address of the person a_gainst whom the _pm:portedjud_gment, act, order, directive, or _process is rendered;

Applicant's Claim Under 2 and 3 "£~awl Q.Q. tbJ!. T~tat O!.urt, awl CQ.JJ.:rt~ Q.( A.~l~

The District Cl_erk did not provide notice to Applicant of Fraudulent Judgment, Criminal Docket Shee1 Court Order or Index Sheet that their office certified to the 131h Court of Appeals. The District Clerk did not l)rovidle notice of the PUfl)orted Motions for Continuances._ PUfl)orted Orders on Continuances,_ Purported Coart Ordered Reset Dates, Purported Announcements (that do not exists in the Court Records,) onl~v on the Applicant's Criminal Docket Sheet. The District Clerk tampered with the Record in the Applicant's Criminal Trial. The District Clerk and Court should have had a reasonable basis to believe in good faith that 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 M otion 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 relating to or lawfully deposited in he clerk's office. The Clerk recOJrded as filed the above mentioned documents when the clerk's office knew that every proceeding/document, order, reset day, announcement motion and order entered onto the Ap_plicant's Criminal Docket Sheet after the 10/23/08 hearing on his Motion to Dismiss were fraudulent entries. The Clerk's oflice tampered with government documents. The Clerk's office knew that there were no Recorded Proceedin_gs in the Trial Court Record showin_g evidence of any of the entries that the

45

Clerks' office 1made onto the Criminal Docket Sheet after the 10/23/08 hearing. The District Clerk and Judge Janna "\!hatley committed fraud and fraud on the court when they tampered with the government d•ocuments in the Applicant's Criminal Trial Case, submitted a Fraudulent Judgment to the 13 1h Court of Appeals and failed to Report Fraudulent Records filed and entered into the Trial Court and the l3 1h Court of Appeals Co:r:ous Christi. Texas.

Letter fnlllm 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 Severance by Avvlicant on 9/25/08 but that the State req).lested 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 wrong~ 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 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 reverste the action of signing the Order. He also did not say who made the announcement and at what proceeding 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 WeU.born to Carrie Crisp.

Facts in The Trial Court Record regarding the claims in Judge Wellborn's letter do not comport with i~ .cJ.ai..ttt.<::.

46

There is no rec:orded proceeding of any Announcement announcing that one or more of the defendant's

were going to waive their rights to a jury trial. There is no rec:orded t>roceeding where Judge Michael Wellborn rendered the Motion Moot and provided a decision with factual findings on the Record There is no Record.ofnotice of any such hearing and there is no notice to Applicant of a decision finding the M~otion Moot. There are laws and procedures that must be followed at pre trial and trial. Announcemen:ts are suppose 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 Denial of same and notice provided. When a MotiOJn 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.

v

[t is not the cle:rk that prepares or presents the Order, it is the Maker of the Order. John Gilmore 1told the Apt>licant and his Mother who both inq_uired 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 out what was going on with the severance.

47

CONCLUSION

Because the trial court proceeded to a joint jury trial with the co defendant when Applicant 2hadrick B. P'ate and the natter were not properly before the court for adjudication, the trial court had no jmrisdiction to enter a Void Judgment, Sentence and Conviction against him and illegally impri son him in the Texas Department of Criminal Justice System. Because the trial court and it's officers committed fraud on tlie court and tampered with the documents in Applicant's criminal trial court record, the court had no jurisdiction to try applicant at either a separate orjoint trial with the co defendant. All of the Facts Presented Both On The Record of the trial court and Outside the Courts Record and Supported by 1the Courts records or sworn affidavit verify the Conclusion that Applicant's Judgment i~ Void . Becau:se the Conviction was acguired through the Violation of A_pplicant's Due Process Rights to a fair and impartial trial, opportunity to be heard and Notice, and that Officers of the Court committed Framd on the Court by the Court and tampered with the trial court records in order to obtain an illegal Comviction of the Applicant. Then it is evident that the Judgment is Void. The trial courlt and it's officers misrepresentations to the Court, were deceitful, used trickery concealed facts, were passively silent, prevented a decision on a defense motion presented fraudulent documents, emtered fraudulent proceedings and used deception by commission, by omission, ~y

~peech, by silence, and by innuendo to obtain the conviction. The trial court: proceeded to trial when they had no jurisdiction over Applicant 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 Applicant's Due Process Rights to a impartial and fair trial, opportunity to be heard, and notice

through their violations of A_p_plicant's Due Process, fraud and fraud ~pon the court that caused the 2ourt to lose jjurisdiction to proceed to trial and to enter a Void Judgment, Conviction and Sentence.

48

Johnson v. Zenrbst 304 US 458 Sup Ct , Fay v. Noia 372 US 391 (1963) Mapco Inc. v: Forrest, 795 S W 2d 700.703 (Tx. 1990) See Armstrong v. Obucino 300 III 140,143 (192ll), 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 consist ofboth active misrepresentation and _passive silence. Vela v. Marywood

L7 S. W. 3d ?rso, review denied with per curiam opinion 53 S W 3d 684 rehearing of petition for review denierll (Tex App. Austin 2000).

"Fraud Upon tlhe 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 by look, etc. \Vhenever this fraud is committed by any attorney or judge, it is a "fraud upon the Court" In Eugene Le~e Armentrout et. al., Ill. 2D 242 75 Ill Dec 703 457 N.E.2d 1262 (1983): Regenold v. Baby Fold, Inc., 68 Ill. 2D 419,435 12 Ill Dec. 151.369 N.E. 2D 858 (1977) ; In re Lamberis, 93 Ill. 2D 222,229, 646 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 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 ofthe opposing party's claim or defense. AOUDE v. Mobil Oil Corp., 892 F.2d. 111.5,1118 (1st Cir. 1989). lt 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). In Fay v. Noia the court observed: Criminal proceedings s'o 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 su!ch imprisonment.

49

PRAYER

Whereforte Petitioner Prays that the Court grant Chadrick B. Pate relief from which he is entitled in tlltis proceeding, that includes an Immediate Emergency Decision, an Order for his Immediate Release from Incarceration, Order Vacating and Dismissing the Void Judgment, Sentence, and Conviction, an Order Removing/Expunging the Conviction from all Judaical and Government Records, And an Order that Sanctions the Trial Court and it's Officers of the Court for the Fratud and due process violations inflicted upon Applicant Chadrick B Pate. And any other relief that is available to him.

:·.:·: ....: ..: :'

' ·. ·~ i.'..'.. ; . :

IN THE COURT OF CRIMINAL APPEALS AUSTIN, TEXAS WRIT NO. WR-78, 165-02

EX PARTE FROM THE DISTRICT COURT CHADRICK :B. PATE TDCJ NO. 01563340 36TH JUDICIAL DISTRICT APPLICANT ARANSAS COUNTY, TEXAS CAUSE NO. A-08-5080-4CR

NEMA BARDtiN PETITIONER v.

JUDGE JAN~NA K. WHATELY

EMERGENCY MOTION FOR RELEIF REQUEST FOR IMMEDIATE BAIL DECISION AND IMMEDIATE RELEIF PURSUA!~T TO THE UNDERLYING ORIGINAL EMERGENCY WRIT FOR HABEAS CORPUS WR-78.165-02

COVER SHEET

RECEIVED IN

COURT OF CRIMINAL APPEALS

JUN 02 2015

Abel Acosta, Clerk

IN THE COURT OF CRIMINAL APPEALS AUSTIN, TEXAS WRIT NO. WR-78, 165-02

EX PARTE FROM THE DISTRICT COURT CHADRICK :B. PATE TDCJ NO. 01563340 36TH JUDICIAL DISTRICT APPLICAr~T ARANSAS COUNTY, TEXAS CAUSE NO. A-08-5080-4CR

NEMABARDHN YETJTJO.NE'B v.

JUDGEJAN~NAK. WHATELY

EMERGENCY MOTION FOR RELEIF REQUEST FOR IMMEDIATE BAIL DECISION AND IMMEDIATE RELEIF PURSUAr'U TO THE UNDERLYING ORIGINAL EMERGENCY WRIT FOR HABEAS CORPUS

TO THE HONORABLE JUDGE OF SAID COURT: NOW COME$, Petition~r Nema Bardin on behalf of A_p_plicant Chadrick B. Pate and respectfully mbmits this Emergency Motion for Relief pursuant to and on the Original Writ of Habeas Corpus filed in this Court on May, 19th, 2015 .AND Amended Emergency Original Writ of Habeas Corpus filed on this date Jume 02_. 2015 seeking relief from Cause No. A-08-5080-4CR a Voi~ Judgment. Sentence and Conviction ordered in the 36th Judicial District Trial Court Aransas, County Texas, and certified by Trial Judge Janna K. Whately. Because the Trial Court Judgment in Cause No: A-08-5080- 4CR is Void fo.r lack of Jurisdiction, Fraud on the Court, and Tanwering with a Trial Court Government Record then tl:lls Motion also pertains to relief from Cause No. WR-78.-165-01 The Intial Writ of Habeas Corpus filed into this Court on or about 6/21/2011 and was denied on 3/6/2013 without written order by Judge Cochran, and from Cause No. 13-09--00112CR affirmed 10/27/2010 from the Thirteenth Dis;trict Court of Ap_peals.

in A-08-5080-4CR. Chadrick B. Pate.

JURISDICTION

Because this Motion flows from the filing of Petitioner's Original Writ ofHabeas Corpus it has jurisdiction for the same reasons it has Jurisdiction over the Original Writ filed on the 19th day of May

2015 andArr.11.ended Writ filed on this date June 02:. 2015 pursuant to Article V Section 5 of the Texas Constitution amdAmendments 1, 5,6 and 14 of the U.S. Constitution . See Exparte Thompson 273 S. W. 3d 17 7, 181 (fex. Crim. App.2008) showing this court to have general jurisdiction over Original Habeas Corpus See Tex Const. Article V

STATEMENT OF THE CASE

Petitioner Nem.a Bardin filed an Original Writ of Habeas Corpus in this Court on May 19th, 2015, and then filed an amended Writ on June 02, 2015 by hand delivering it and speaking personally with Mr. Abel Acosta Clerk for the Texas Criminal Court of Appeals. Petitioner asked to speak with Mr. Acosta in order to exp·lain that the Writ being filed was not a 11.07 Writ and therefore not a Second or · Successive Pe·tition under 11.07. Petitioner explained the nature of the Writ and why it was being filed as an OriginaL Writ under this Courts inherent power and jurisdiction to provide the relief requested. Mr. Acosta too'k the Document after reviewing some of the paperwork with Petitioner and stated that he would file it. On May 22nd, 2015 after checking her mail box, Petitioner found that there was no notification fr•om the Court providing notice that the Documents had been filed. Because Petitioner's address is local she called Mr. Acosta to inq_uire about the filing of the documents. He stated that she

should have re•ceived a post card. A conversation regarding the filing and docketing and the rules and 2.

procedures that are required on the kind of Writ that Petitioner filed left Petitioner confused. Because Petitioner was told that there were no deadlines for the Court to make a decision on the Writ that she had filed, and because she was told that the Case No. for the Writ that she filed was the same as the Initial Writ that Applicant Pate had filed with the exception of the last two digits, Petitioner was in a quandary, and decided that she had better study the Trap rules more thoroughly. Petitioner checked he1 mail again onJMay 23, 2015 and the Post Card had still not arrived at her downtown P 0 Box 772 Austin, Texas .. After reviewing the Trap Rules, Petitioner felt that there should be a req_uirement on the time frame for a decision on the Serious Matter of a Writ that challenged the Judgment of the Trial Court as being Void for Lack of Jurisdiction. Petitioner filed an Amended Emergency Writ of Habeas Corpus on this date June 02, 2015 hand delivered to the Clerk and has at the same time filed this Emergency M·otion for Releif also hand delivered on June 02, 2015 to the Clerk. It is not Petitioner's intent to overide this Court with endless Petitions/Motions, it is only her intent to follow the pro~cedures (~though as a layman they are incredibly confusing to her) she does not w.ant the Writ to be denied for failure to follow the rules or procedures. Applicant lost his liberty because the trial court purposely failed to follow the rules and the procedures required of them. Petitioner·does not q_uestion that Mr. Acosta is not following the rules. She is sure that he is, but because she has no idea which rules that are being followed then she has determined it best to file this "Motion for Emergency Relief', with the hope that the Original Writ of Habeas Corpus will not be denied for her failure in misunderstanding the Trap Rules and Procedures/Protocols that the Clerk's Office uses to see that these kinds of Writs are filed and journaled properly and expeditiously.

The Petitioner has filed her Original Writ for Habeas Corpus into the proper Court See Thompson 273 S W 3d 177, 1.81 (Tex. Crim. App. 2008).

If what Mr. Ac,osta says is true, that the Court has no time limit for a decision on the Writ, and it could be .years befor·e a decision, then Petitioner and Applicant do not have an adeguate remedy for relief.

See In re Me Cann 422 S W 3d 201 (fex. 2013) showing:that the remedy is not adequate if the remedy is: u:ncertain, tedious, burdensome, slow, inconvenient or, inappropriate, then it is deemed to be ineffective (quoting from Greenwell v. Court of Appeals for the Thirteenth Judicial Dist 159 S. W. 3d 645,64 8-9 (fex. Crim. App 2005).

With this in tnind Petitioner respectfully request that this Court take immediate action and grant Applicant Bail on a Personal Recognizance Bond freeing him from incarceration until which time this Court can reach a decision on the merits of the Petitioner's claims and that immediate action be taken on this !lvtotion and on the Odginal Wdt of Habeas Cowus filed on the 19th day of May 2015. and the Writ filed amending on this date June 02, 2015 .. More than a (114) days have passed since the filing of the Odginal Writ, and Applicant has been ille~ally restradned for 7 years. Petitioner has supported the Wdt with undeniable proof that the Trial Court Tampered with the trial court records, violated Applicant's dght to a fair and impartial trial, lied to jurors held ex parte hearings

and manipulat<ed the Judicary in order to obtain an illegal conviction over Applicant. Applicant has' provided the trial courts own records that prove the claims that she has made. Applicant received no fair and impartjal trial, opportunity to be heard and notice at the sham trial. The trial court violated Applicant's U .. S Constitutional Due Process rights, under the Texas Constitution.. See Winters v. Presiding Judge of Criminal Dist. Court No. Three of Tarrant County 118 S W 34. If Petitioner hatS failed to follow any rules or procedures, this Motion nor the Original Writ should bt: denied for suc:h a failure. In Judge Acala's dissent in the case of Tyrone Casey Sledge citing Ex Parte Graves. 70S W 3d 103-107-(fex. Crim. App 2013) she concluded: that the purpose of the · Habeas Statutte was to limit subsequent writs to regulate the influx of applications raising claims that were only rec:ently cognizable rather than to limit the traditional common law claim that the trial court

5

lacked jurisdiction over the case. She concluded that The legislature may not withhold the right of habeas c01:pusTex. Const. Art. 1, 12 (The Writ of Habeas Corpus is a Writ of right and shall never be

CONCLUSION

Petitioncer's filing of the Original Writ of Habeas Corpus _presents not only exceptional circumstancli~s for which relief should be granted, but it should be granted to meet the very ends of justice. Be~cause the Texas Court of Criminal Appeals is the last resort and State .remedy for relief from a Judwment that is Void for Lack of Jurisdiction, and because to deprive Applicant of his only effective State remedy would not only be contrary to the rudimentary demands of justice but destructive ~of a constitutional guaranty specifically designed to prevent injustice, and because The Writ lies as a traditional civil remedy for the enforcement of the right, to personal liberty , not a stage of the statte criminal proceedings or as an appeal therefrom, and because The Court of Criminal Appeals may take action authorized by constitutional provision, and under common law, and it's inherent and i111plied _power, this Motion for Emer_gency Relief should be _granted and The Ori_ginal Writ requesting relief should be heard as an emergency and all relief requested in the Writ should be granted.

PRAYER

Petitioner p•rays that this Honorable Court will hear and grant and issue Order on this Motion for Emergency Re:leif immediately providing for BAIL on a Personal Recognizance Bond and that it issue Order to rule on Petitioner's Original Writ of Habeas Corpus and grant all relief requested there-in and do so within 7 days of this filing.

Petitioner ]prays that this Honorable Court by granting such requested relief will at least see that Applicant's Liberty is restored quickly and unconditionally.

Certificate of

Compliance

Petitionetr has telephoned the District Clerk of Aransas County, The Disctrict Attorney of Aransas Co1lllnty, Judge Janna K. Whately and the Director of TDCJ and notified each of them that this Eotergency Motion for Relief would be filed. Petitioner spoke with a staff member in each instancce and provided the notification, however Cookie at the Director's office could no1 hear me d1Ue to some kind of telephone in terti ence. Petitioner made every effort to notify.

~mrl!~

Petitioner

dated ~ / '2-/7-o f5

7.

IN THE COURT OF CRIMINAL APPEALS AUSTIN, TEXAS

EXPARTE FROM THE DISTRICT COURT CHADRICK :B. PATE 36TH JUDICIAL D ISTRICT TDCJ 01563340 ARANSASCOUNTYTEXAS APPLICANT11REALTOR CAUSE NO. A-08-5080-4CR

v.

PRESIDING .JUDGE JANNA K. WHATELY

CERTIJFICATE OF SERVICE

I do hereby certify that a true original of the above and foregoing Emergency ]Motion for Relief was personally hand delivered on the 2"d day of June 2015 to The Texas Court of Criminal Appeals Clerk's Office at 201 W. 14th St

IN THE COURT OF CRIMINAL APPEALS AUSTIN, TEXAS WRIT NO. WR-78, 165-02

EX PARTE FROM THE DISTRICT COURT CHADRICK JIB. PATE TDCJ NO. 01563340 36TH JUDICIAL DISTRICT APPLICAr~T ARANSAS COUNTY, TEXAS CAUSE NO. A-08-5080-4CR

NEMA BARDHN PETITIONEGR v.

JUDGE JANJNA K. WHATELY

TABLE OF CONTENTS

LETTER TO CLERK OF CRIMINAL APPEALS ABEL ACOSTA COVER SHEET

AMEN:DED EMERGENCY ORIGINAL WRIT OF HABEAS CORPUS (49 PAGES)

JURISDICTION PAGE 2

PROCEDURAL IDSTORY 3

EMERGENCY RELIEF PAGE 4 .

STATEMENT OF CASE PAGE 5-10 CLAIMS/GROUNDS FOR RELEIF PAGES 11-13

MEMORANDUM IN SUPPORT WITH FACTS SUPPORTING CLAIMS/GROUNDS FOR RELIEF PAGES 13-46

CONCLUSION PAGE PAGES 47-48 PRAYER PAGE 49

APPENDIX COVER SHEET

APPENDIX

PAGE 1 OF2

CERTIFICATE OF SERVICE (2 PAGES)

PETITIONER'S NOTARIZED OATH (1 PAGE)

EXHIBIT LIST (2 PAGES)

EXHIBITS 1-24 COVER SHEETS

THE ACTlUAL EXHIBITS CAN BE FOUND IN THE COURTS RECORDS UNDER WR-

78,165-02 FILED ON 5/19/2015

LIST OF AUTHORITIES

IN THE COURT OF CRIMINAL APPEALS AUSTIN, TEXAS WRIT NO. WR-78, 165-02

EXPARTEG FROM THE DISTRICT COURT CHADRICK liB. PATE TDCJ NO. 01563340 36TH JUDICIAL DISTRICT APPLICAr~T ARANSAS COUNTY, TEXAS CAUSE NO. A-08-5080-4CR

NEMABARDIN PETITIONF~R v.

JUDGE JANJNA K. WHATELY

APPENDIX COVER SHEET

IN THE COURT OF CRIMINAL APPEALS AUSTIN, TEXAS WRIT NO. WR-78, 165-02

EX PARTE FROM THE DISTRICT COURT CHADRICK :B. PATE TDCJ NO. 01563340 36TH JUDICIAL DISTRICT APPLICAI~T ARANSAS COUNTY, TEXAS CAUSE NO. A-08-5080-4CR

NEMA BARD, IN .PE.TJTJOJ'Y.F.'R v.

JUDGE JAN-NA K. WHATELY

APPENDIX

CERTIFICATE OF SERVICE (2 PAGES)

PETITIONER'S NOTARIZED OATH (1 PAGE)

EXHIBIT LIST (2 PAGES)

EXHIBITS 1-24 COVER SHEETS

THE ACTUAL EXHIBITS CAN BE FOUND IN THE COURTS RECORDS UNDER WR-

78,165-02 FILED ON 5/19/2015

LIST OF AUTHORITIES

IN THE COURT OF CRIMINAL APPEALS AUSTIN, TEXAS WRIT NO. WR-78, 165-02

EX PARTE FROM THE DISTRICT COURT CHADRICK :B. PATE TDCJ NO. 01563340 36TH JUDICIAL DISTRICT APPLICAI~T ARANSAS COUNTY, TEXAS CAUSE NO. A-08-5080-4CR

NEMA BARD~ IN PETITIONE:R v.

JUDGEJAN~NAK. WHATELY

PETITIONER'S INFORMATION

NEMA BA~RDIN P. 0. Box 7'72 Austin, TeJKas 78767 512-487-0197 cell

CERTIFICATE OF SERVICE

I do hereby certify that a true original of the above and foregoing A_p_plication of Emergency Original Habeas Corpus was personally hand delivered on the 2ND day of JUNE, 2015 to The Texas Co1urt of Criminal Appeals Clerk's Office at 201 W. 14th Street Austin, Texas 78701 and sent regular mail to:

JUDGE JANNAK. WHATELY

P.O. BOX 700

SINTON TEXAS 79387-0700

ARANSAS COUNTY DISTRICT CLERK'S OFFICE 301 NORTH LIVE OAK STREET ROCKPORT, TEXAS 78382

PAGE 1 OF2

CERTIFICATE OF SERVICE

ARANSAS COUNTY DISTRICT ATTORNEY 301 NORTH LIVE OAK STREET ROCKPORT, TEXAS 78382

NEMABARDIN PETITIONER

PAGE20F2

IN THE COURT OF CRIMINAL APPEALS AUSTIN, TEXAS WRIT NO. WR-78, 165-02

EXPARTEC FROM THE DISTRICT COURT CHADRICK llB. PATE TDCJ NO. 01563340 36TH JUDICIAL DISTRICT APPLICAr~T ARANSAS COUNTY, TEXAS CAUSE NO. A-08-5080-4CR

NEMABARDHN PETITIONEGR v.

JUDGE JANJNA K. WHATELY

OATH

STATE OF' TEXAS, COUNTY OF TRAVIS

I NEMA BARDIN BEING DULY SWORN, UNDER OATH SAYS: I AM THE PETITIONER IN TillS AMENDED EMERGENCY ORIGINAL HABEAS CORPUS ACTION AND KNOW THE CONTENTS OF THE ABOVE APPLICATION FOR WRIT OF HABEAS CORPUS AND, ACCORDING TO MY BELIEF, THE FACTS STATED IN THE APPLICATION ARE TRUE.

NEMA BARDIN PETITIONER

SUBSCRI:JIIJED AND SWORN TO BEFORE ME JUNE 02, 2015.

NOTARY PUBLIC

-,

IN THE COURT OF CRIMINAL APPEALS AUSTIN, TEXAS WRIT NO. WR-78, 165-02

EX PARTE FROM THE DISTRICT COURT CHADRICK :B. PATE TDCJ NO. 01563340 36TH JUDICIAL DISTRICT APPLICAr'lT ARANSAS COUNTY, TEXAS CAUSE NO. A-08-5080-4CR

NEMABARDHN PETITIONE:R v.

JUDGEJAN~NAK. WHATELY

COVER SHEET

~~ibl-\- Lt.s.T

IN THE COURT OF CRIMINAL APPEALS AUSTIN, TEXAS WRIT NO. WR-78, 165-02

EX PARTE FROM THE DISTRICT COURT CHADRICK :B. PATE TDCJ NO. 01563340 36TH JUDICIAL DISTRICT APPLICAr'JT ARANSAS COUNTY, TEXAS CAUSE NO. A-08-5080-4CR

NEMA BARD~ IN PETITIONE:R v.

JUDGE JAN:NA K. WHATELY

AMENDED

EXHIBIT LIST

Ex # 1 Motiom of Defendant Chadrick Pate for Severance of Defendant's Ex # 2 Indiclltment Ex # 3 Char~ge of the Court Ex # 4 Criminal Docket Sheet of Applicant Chadrick B. Pate Ex # 5 9/25/018 Reporters Record Volume 2 of 9 Chadrick Pat€ Ex # 6 Order 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 :1 paragraph 3 Ex # 8 10/23Jf08 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 F.x# J 0 Ca.r.dte C..ri.\(l ~to .Jndg.e W.cllhn.r.n Ex# 1110/23/«~8 Reporter's Record Volume 3 of9 Chadrick Pate Motion to Dismiss A-08-5080-

4CR E~# \1. CT\m\Tat\ ~1;\ ~ C'r..Tfi\~ \\'lN. h.~Y,.I!RlUb-'lCR. Ex# 13 11/25.108 Reporters Record Volume 5 of 11 pre trial hearing Christopher Hall A-08-5080-

2CR

Ex#' !4" Zt5!UI'1 Reporters Record ~ofume S'A of ff pre trfaf flearfng S'-08'-5\J8\J-:Z Ex# 15 Master Index Christopher Hall Court Reporters Record Volume 1 of 11 page 2 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-

4CR

Ex# 18 Reporters Record Volume of pages 259 lines 1-25

Page 1 of2

EXHffiiT LIST CONTINUED

Ex# 19 Affidavit of Applicant Chadrick Pate on Leg Restraints Ex# 20 Repo,rters Record Volume 6 of 9 page 221 lines 1-25 Chadrick Pate Ex# 21 Inde1c: of Events certified to Court of Appeals Chadrick Pate Ex# 22 Judgmllent 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.

Page 2 of2

IN THE COURT OF CRIMINAL APPEALS AUSTIN, TEXAS WRIT NO. WR-78, 165-02

EX PARTE FROM THE DISTRICT COURT CHADRICK :B. PATE TDCJ NO. 01563340 36TH JUDICIAL DISTRICT APPLICAr~T ARANSAS COUNTY, TEXAS CAUSE NO. A-08-5080-4CR

NEMA BARD~ IN PETITIONE:R v.

JUDGE JAN~NA K. WHATELY

COVER SHEET

IN THE COURT OF CRIMINAL APPEALS AUSTIN, TEXAS WRIT NO. WR-78, 165-02

EX PARTE FROM THE DISTRICT COURT CHADRICK :B. PATE TDCJ NO. 01563340 36TH JUDICIAL DISTRICT APPLICAJ'~T ARANSAS COUNTY, TEXAS CAUSE NO. A-08-5080-4CR

NEMA BARD»>N PETITIONE:R v.

JUDGE JANNA K. WHATELY

COVER SHEET

EXHIBIT 1

MOTION OF DEFENDANT CHADRICK PATE FOR SEVERANCE OF DEFENDANT'S

IN THE COURT OF CRIMINAL APPEALS AUSTIN, TEXAS WRIT NO. WR-78, 165-02

EX PARTE FROM THE DISTRICT COURT CHADRICK :B. PATE TDCJ NO. 01563340 36TH JUDICIAL DISTRICT APPLICAI'JT ARANSAS COUNTY, TEXAS CAUSE NO. A-08-5080-4CR

NEMABARDHN PETITIONE:R v.

JUDGE JANNA K. WHATELY

COVER SHEET

EXIDBIT 2

INDICTMENT

IN THE COURT OF CRIMINAL APPEALS AUSTIN, TEXAS WRIT NO. WR-78, 165-02

EX PARTE FROM THE DISTRICT COURT CHADRICK :B. PATE TDCJ NO. 01563340 36TH JUDICIAL DISTRICT APPLICAr'lT ARANSAS COUNTY, TEXAS CAUSE NO. A-08-5080-4CR

NEMA BARDJIN PETITIONE:R v.

JUDGE JAN~NA K. WHATELY

COVER SHEET

EXHffiiT 3

CHARGE OF THE COURT

IN THE COURT OF CRIMINAL APPEALS AUSTIN, TEXAS WRIT NO. WR-78, 165-02

EX PARTE FROM THE DISTRICT COURT CHADRICK :B. PATE TDCJ NO. 01563340 36TH JUDICIAL DISTRICT APPLICAI'IT ARANSAS COUNTY, TEXAS CAUSE NO. A-08-5080-4CR

NEMABARDIN PETITIONE:R v.

JUDGE JAN~NA K. WHATELY

COVER SHEET

EXIDBIT 4

CRIMINAL DOCKET SHEET APPLICANT CHADRICK B. PATE

IN THE COURT OF CRIMINAL APPEALS AUSTIN, TEXAS WRIT NO. WR-78, 165-02

EX PARTE FROM THE DISTRICT COURT CHADRICK :B. PATE TDCJ NO. 01563340 36TH JUDICIAL DISTRICT APPLICA!~T ARANSAS COUNTY, TEXAS CAUSE NO. A-08-5080-4CR

NEMABARDHN PETITIONE:R v.

JUDGEJAN:NAK. WHATELY

COVER SHEET

EXHIBIT 5

9/:25/08 REPORTERS RECORD VOLUME 2 OF 9 CHADRICKB. PATE

IN THE COURT OF CRIMINAL APPEALS AUSTIN, TEXAS WRIT NO. WR-78, 165-02

EX PARTE FROM THE DISTRICT COURT CHADRICK :B. PATE TDCJ NO. 01563340 36TH JUDICIAL DISTRICT APPLI CAI'lT ARANSAS COUNTY, TEXAS CAUSE NO. A-08-5080-4CR

NEMA BARDniN PETITIONE:R v.

JUDGE JAN~NA K. WHATELY

COVER SHEET

EXHIBIT 6

ORDER ON MOTION FOR SEVERANCE 9/25/08

IN THE COURT OF CRIMINAL APPEALS AUSTIN, TEXAS WRIT NO. WR-78, 165-02

EX PARTE FROM THE DISTRICT COURT CHADRICK :B. PATE TDCJ NO. 01563340 36TH JUDICIAL DISTRICT APPLICAr~T ARANSAS COUNTY, TEXAS CAUSE NO. A-08-5080-4CR

NEMA BARJ)IN PETITIONE:R v.

JUDGE JAN:NA K. WHATELY

COVER SHEET

EXHIBIT 7

AFFIDAVIT STACEY DEVILLE

DISTRICT CLERK PAM HEARD'S STATEMENT ABOUT THE MOTION OF SEVERANCE ORDER SIGNED BY JUDGE MICHAEL WELLBORN 9/25/08

IN THE COURT OF CRIMINAL APPEALS AUSTIN, TEXAS WRIT NO. WR-78, 165-02

EX PARTE FROM THE DISTRICT COURT CHADRICK :B. PATE TDCJ NO. 01563340 36TH JUDICIAL DISTRICT APPLICAr'lT ARANSAS COUNTY, TEXAS CAUSE NO. A-08-5080-4CR

NEMA BARD, IN PETITIONE:R v.

JUDGEJAN~NAK. WHATELY

COVER SHEET

EXHIBIT 8

10/23/08 REPORTERS RECORD VOLUME 4 OF 11 PRE TRIAL HEARING CHRISTOPHER HALL A-08-5080-2CR

IN THE COURT OF CRIMINAL APPEALS AUSTIN, TEXAS WRIT NO. WR-78, 165-02

EX PARTE FROM THE DISTRICT COURT CHADRICK :B. PATE TDCJ NO. 01563340 36TH JUDICIAL DISTRICT APPLICAI~T ARANSAS COUNTY, TEXAS CAUSE NO. A-08-5080-4CR

NEMA BARD»IN YJ!.TJTJO.NE'R v.

JUDGEJAN~NAK. WHATELY

COVER SHEET

EXHIBIT 9

JUDGE WEILLBORN'S LETTER TO CARRIE CRISP APPLICANT'S HABEAS ATTORNEY

IN THE COURT OF CRIMINAL APPEALS AUSTIN, TEXAS WRIT NO. WR-78, 165-02

EX PARTE FROM THE DISTRICT COURT CHADRICK :B. PATE TDCJ NO. 01563340 36TH JUDICIAL DISTRICT APPLICAf~T ARANSAS COUNTY, TEXAS CAUSE NO. A-08-5080-4CR

NEMA BARD~ IN PETITIONE:R v.

JUDGE JAN~NA K. WHATELY

COVER SHEET

EXHIBIT 10

CARRIE CRISP LETTER TO JUDGE WELLBORN

IN THE COURT OF CRIMINAL APPEALS AUSTIN, TEXAS WRIT NO. WR-78, 165-02

EX PARTEe FROM THE DISTRICT COURT CHADRICK lB. PATE TDCJ NO. 01563340 36TH JUDICIAL DISTRICT APPLICM~T ARANSAS COUNT~ TEXAS CAUSE NO. A-08-5080-4CR

NEMA BARD»IN PETITIONEGR v.

JUDGE JANNA K. WHATELY

COVER SHEET

EXHIBIT 11

10/23/08 REPORTERS RECORD VOLUME 3 OF 9 CHADRICK PATE MOTION TO DISMISS A-08-5080-4CR

IN THE COURT OF CRIMINAL APPEALS AUSTIN, TEXAS WRIT NO. WR-78, 165-02

EX PARTE FROM THE DISTRICT COURT CHADRICK :B. PATE TDCJ NO. 01563340 36TH JUDICIAL DISTRICT APPLICAI~T ARANSAS COUNTY, TExAS CAUSE NO. A-08-5080-4CR

NEMA BARDPIN PETITIONE:R v., JUDGE JAN:NA K. WHATELY

COVER SHEET

EXHIDIT 12

CRIMINAL DOCKET SHEET CHRISTOPHER HALLA-08-5080-2CR

IN THE COURT OF CRIMINAL APPEALS AUSTIN, TEXAS WRIT NO. WR-78, 165-02

EX PARTE FROM THE DISTRICT COURT CHADRICK :B. PATE TDCJ NO. 01563340 36TH JUDICIAL DISTRICT APPLICAr~T ARANSAS COUNTY, TEXAS CAUSE NO. A-08-5080-4CR

NEMA BARDPIN J>.F.TJTJO.NE:R v.

JUDGE JAN:NA K. WHATELY

COVER SHEET

EXHffiiT 13

11/25/08 REPORTERS RECORD VOLUME 5 OF 11 PRE TRIAL HEARING CHRISTOPHER HALL A-08-5080-2CR

IN THE COURT OF CRIMINAL APPEALS AUSTIN, TEXAS WRIT NO. WR-78, 165-02

EX PARTE FROM THE DISTRICT COURT CHADRICK :B. PATE TDCJ NO. 01563340 36TH JUDICIAL DISTRICT APPLICAI~T ARANSAS COUNTY, TEXAS CAUSE NO. A-08-5080-4CR

NEMA BARD»IN PETITIONE:R v.

JUDGE JAN-NA K. WHATELY

COVER SHEET

EXHIBIT 14

Z/5/09 REPORTERS RECORD VOLUME 5-A OF 11 PRE TRIAL HEARING CHRISTOPHER HALL S-08-5080-2

IN THE COURT OF CRIMINAL APPEALS AUSTIN, TEXAS WRIT NO. WR-78, 165-02

EX PARTE FROM THE DISTRICT COURT CHADRICK JIB. PATE TDCJ NO. 01563340 36TH JUDICIAL DISTRICT APPLICAr~T ARANSAS COUNTY, TEXAS CAUSE NO. A-08-5080-4CR

NEMA BARDHN PETITIONE~R v.

JUDGE JANJNA K. WHATELY

COVER SHEET

EXHIBIT 15

MAS'TER INDEX CHRISTOPER HALL REPORTERS RECORD 1-11 PAGE 2

IN THE COURT OF CRIMINAL APPEALS AUSTIN, TEXAS

WRIT NO. WR-78, 165-02

EX PARTE FROM THE DISTRICT COURT CHADRICK :B. PATE TDCJ NO. 01563340 36TH JUDICIAL DISTRICT APPLICAI~T ARANSAS COUNTY, TEXAS CAUSE NO. A-08-5080-4CR

NEMABARDIN PETITIONE:R v.

JUDGE JANNA K. WHATELY

COVER SHEET

EXIDBIT 16

INDICTMENT CHRISTOEHER HALLA-08-5080-2CR

IN THE COURT OF CRIMINAL APPEALS AUSTIN, TEXAS WRIT NO. WR-78, 165-02

EX PARTE FROM THE DISTRICT COURT CHADRICK :B. PATE TDCJ NO. 01563340 36TH JUDICIAL DISTRICT APPLICAt~T ARANSAS COUNTY, TEXAS CAUSE NO. A-08-5080-4CR

NEMA BARD, IN PETJTJONE:B v.

JUDGEJAN:NAK. WHATELY

COVER SHEET

EXillBIT#17

2/9/09 REPORTERS RECORD VOLUME 4 OF 9 PAGE 102 LINE 9-25 CHADRICK PATE A-08-5080-4CF

IN THE COURT OF CRIMINAL APPEALS AUSTIN, TEXAS WRIT NO. WR-78, 165-02

EX PARTE FROM THE DISTRICT COURT CHADRICK :B. PATE TDCJ NO. 01563340 36TH JUDICIAL DISTRICT APPLICAr~T ARANSAS COUNTY, TEXAS CAUSE NO. A-08-5080-4CR

NEMABARDIN PETITIONE:R v.

JUDGEJAN~NAK. WHATELY

COVER SHEET

EXHIBIT 18

REPORTER~S RECORD VOLUME CHADRICK B PATE LEG RESTRAINTS PAGE 259 LINE 1-25

IN THE COURT OF CRIMINAL APPEALS AUSTIN, TEXAS WRIT NO. WR-78, 165-02

EX PARTE FROM THE DISTRICT COURT CHADRICK :B. PATE TDCJ NO. 01563340 36TH JUDICIAL DISTRICT APPLICAr~T ARANSAS COUNTY, TEXAS CAUSE NO. A-08-5080-4CR

NEMABARDHN .P.E.TJTJO.NE'R v.

JUDGE JAN~NA K. WHATELY

COVER SHEET

EXHIBIT 19

AFFIDAVIT OF CHADRICK PATE (LEG RESTRAINTS)

IN THE COURT OF CRIMINAL APPEALS AUSTIN, TEXAS WRIT NO. WR-78, 165-02

EX PARTE FROM THE DISTRICT COURT CHADRICK :B. PATE TDCJ NO. 01563340 36TH JUDICIAL DISTRICT APPLICAr~T ARANSAS COUNTY, TEXAS CAUSE NO. A-08-5080-4CR

NEMA BARD,IN Y.E.TJTJO.NE'Jl v.

JUDGEJAN.NAK. WHATELY

COVER SHEET

EXHIBIT 20

REPOR']fERS RECORD VOLUME 6 OF 9 PAGE 221 LINES 1-25 CHADRICK PATE

IN THE COURT OF CRIMINAL APPEALS AUSTIN, TEXAS WRIT NO. WR-78, 165-02

EX PARTE FROM THE DISTRICT COURT CHADRICK :B. PATE TDCJ NO. 01563340 36TH JUDICIAL DISTRICT APPLICANT ARANSAS COUNTY, TEXAS CAUSE NO. A-08-5080-4CR

NEMABARDniN .PETJTJONKR v.

JUDGE JAN:NA K. WHATELY

COVER SHEET

EXHIBIT 21

INDEX OF" EVENTS CERTIFIED TO THE OURT OF APPEALS CHADRICK PATE A-08-

5080-4CR

IN THE COURT OF CRIMINAL APPEALS AUSTIN, TEXAS WRIT NO. WR-78, 165-02

EX PARTE FROM THE DISTRICT COURT CHADRICK :B. PATE TDCJ NO. 01563340 36TH JUDICIAL DISTRICT APPLICAi~T · ARANSAS COUNTY, TEXAS CAUSE NO. A-08-5080-4CR

NEMABARDIN YETJTJONE'B v.

JUDGE JAN.NA K. WHATELY

COVER SHEET

EXHIBIT 22

JUDGMENT FRONT PAGE CHADRICK PATE A-08-5080-4CR

IN THE COURT OF CRIMINAL APPEALS AUSTIN, TEXAS WRIT NO. WR-78, 165-02

EXPARTEC FROM THE DISTRICT COURT CHADRICK JIB. PATE TDCJ NO. 01563340 36TH JUDICIAL DISTRICT APPLICAr~T ARANSAS COUNTY, TEXAS CAU~E NO. A-08-5080-4CR

NEMABARDHN PETITIONEGR v.

JUDGE JANJNA K. WHATELY

COVER SHEET

EXHIBIT 23

DISTRICT CLERK CERTIFICATION TO THE COURT OF APPEALS CHADRICK PATE A-08-5080-4CR

IN THE COURT OF CRIMINAL APPEALS AUSTIN, TEXAS WRIT NO. WR-78, 165-02

EX PARTE FROM THE DISTRICT COURT CHADRICK JIB. PATE TDCJ NO. 01563340 36TH JUDICIAL DISTRICT APPLICAr~T ARANSAS COUNTY, TEXAS CAUSE NO. A-08-5080-4CR

NEMABARDIN PETITIONEGR v.

JUDGE JANJNA K. WHATELY

COVER SHEET

EXHIBIT 24

JUDGE~ WHATELY'S CERTIFICATION TO THE COURT OF APPEALS OF ALL PROCEEDINGS