ACCEPTED 03-14-00422-CV 3639215 THIRD COURT OF APPEALS AUSTIN, TEXAS 1/2/2015 3:35:41 PM JEFFREY D. KYLE CLERK
FILED IN 3rd COURT OF APPEALS No. 03-14-00422-CV AUSTIN, TEXAS 1/2/2015 3:35:41 PM IN THE COURT OF APPEALS FOR JEFFREY D. KYLE Clerk THE THIRD COURT OF APPEALS DISTRICT
AUSTIN, TEXAS
WILLIAM J. COJOCAR, APPELLANT
V.
SALLY CARRILLO, APPELLEE
APPEAL FROM CAUSE NO. C2013-0134B
207TH DISTRICT COURT OF COMAL COUNTY
THE HONORABLE CHARLES STEPHENS, PRESIDING
APPELLANT’S REPLY BRIEF
William J. Cojocar, Ph.D. Clinton Lawson, Attorney at Law Pro Se Counsel 755 E. Mulberry St. Suite 200 66th Horseshoe Canyon San Antonio, Tx 78212 San Antonio, TX 78258 Telephone: 210 244 2701 Telephone: (210) 835-5035 Email: clintonlawson@gmail.com Email: william.cojocar@sri.com
ORAL ARGUMENT REQUESTED
1 Table of Contents
Index of Authorities…………………………………………………………….3
Statement of Facts………………………………………………………...…….4
Summary of Argument.…………………………………………………...…….6
Argument………………………………………………………………………..8
Appellant Counter Argument 1…………………………………………………11
Appellant Counter Argument 2………………………………………………....14
Prayer………………………………………………………………..………….18
Certificate of Compliance………………………………………………...…….19
Certificate of Service………………………………………………...………….20
2 Index of Authorities
Texas Rule of Appellate Procedure 38.2(a) (1) (B)
Texas Rule of Appellate Procedure 44.1 (a) (1)
Texas Rule of Appellate Procedure 9.4
Texas Family Code § 6.602
Texas Family Code § 7.009 Fraud on the Community; Division and Disposition of Reconstituted Estate
Texas Civil Appeals Code Guide (Chapter 8 Appellant’s Reply Brief, Paragraph 8.5 Argument, p. 267).
N.P. v. Methodist Hosp. 190 S.W.3d217, 225
3 Statement of Facts
In compliance with Texas Rule of Appellate Procedure 38.2(a) (1) (B), the
Appellant wishes to set forth the correct facts herein from the Appellee Brief.
The Appellant’s filing of the first and second amended Motion to Revoke the MSA
on 22 Jan 2014, revoking his consent to the MSA before rendition of judgment on
10 Oct 2013; and a second amended Motion to Revoke the MSA on 25 April 2014,
based on fraud and fraudulent inducement into signing the MSA; and requested
that the MSA be repudiated. (CR, p. 102) This filing of the Motion to Revoke the
MSA met the criteria of Texas Family Code § 6.602 paragraph (d), due to the
filing of the Motion to Revoke the MSA being filed prior to the final mediation
order hearing, which occurred on 28 April 2014. The 207th District Court
Honorable Judge Charles Stephens ordered, “I'm going to let the Third Court
decide if that's what you want to do; I'm going to enter the divorce decree today
and if there's some things we need to talk about today whether or not it complies
with the Mediated Settlement Agreement we can talk about that.” (RR, p. 16) The
Court made the decision to enter the divorce decree on 28 April 2014, without
allowing the Appellant to present the evidence to substantiate the Motion to
Revoke the MSA. The Appellant subpoenaed two key witnesses to testify at the
Motion to Revoke the MSA/Divorce hearing, and possessed significant and key
evidence to present to the court. The Appellant’s Counsel informed Judge Stephens
4 that he possessed newly discovered evidence and subpoenaed witnesses to present
to the court; but as stated by Judge Stephens, he did not wish to hear the evidence
prepared and informed the Appellant’s Counsel that he would have to file a Motion
for New Trial; in which case the Appellant’s Counsel did not insist on the evidence
possessed for fraud be heard. (RR, p. 20-21) The Appellant provided his counsel
all of the evidence to support the Motions to Compel and Revoke the MSA based
on Fraud and Fraudulent inducement into signing the MSA; and the Appellant’s
Counsel failed to pursue the presentation of this prepared evidence, that prompted
Judge Stephens to grant the divorce and deny the Appellant his right to present the
evidence to support his case. The evidence that was provided to the court and was
not presented or heard is currently in possession of the Comal County District
Attorney after the Appellant’s 18 Sep 2014 Criminal Charges filing with the
Comal County Sheriff’s Department; pending pursuance of action from the Comal
County District Attorney based on the decision rendered by the 3rd Appellate
Courts of Appeals.
5 Summary of Argument
The Appellant’s argument to the Appellee Brief addresses and counters the
Appellee’s arguments that focus on the legitimacy of the application and ruling of
the MSA and the Appellant’s "Fraud" Arguments being unsupported by the
Record. The Appellant notifies the Court that he was required to file a report with
the FBI on 13 March 2014 and subsequently filed criminal charges with the Comal
County Sheriff on 18 Sep 2014, whereby the case “evidence” remains with the
Comal County District Attorney pending results of this appeal. The Appellant
counters the Appellee’s first Argument by a reaffirmation of Texas Family Code §
6.602 paragraph (a) that states that “On the written agreement of the parties or on
the court's own motion, the court may refer a suit for dissolution of a marriage to
mediation”, noting that the two parties did not possess a written agreement to
mediate in accordance with the TFC § 6.602; thereby not fully complying with the
Texas Family Code § 6.602 stipulation. This extract from the Texas Family Code
is not a flawed reading of the statute, and the statute clearly states that in order to
be compliant with the code, an Order to Mediate is required to be produced by
written agreement of the parties or on the court’s own motion. The Appellee’s
second argument is countered by the Appellant’s stating that the Appellee’s fails to
counter the Appellant’s Argument #2 (Appellant’s Brief, pp. 27-30), based on the
fact that the trial court erred by denying the Appellant’s Motion to Revoke the
6 Mediated Settlement Agreement and failed to consider the substantial evidence
that the Appellant was fraudulently induced into signing the MSA, and did so
under duress. This evidence was introduced to the Court in the Appellant’s Motion
to Revoke the Mediated Settlement Agreement and the Motion for New Trial. The
Appellant reiterates that he provided his counsel all of the evidence to support the
Motions to Compel and Revoke the MSA based on Fraud and Fraudulent
inducement into signing the MSA; and the Appellant’s Counsel failed to pursue the
presentation of this prepared evidence, that prompted Judge Stephens to grant the
divorce and deny the Appellant his right to present the evidence to support his
case. These errors amounted to a denial of the Appellant’s rights as it reasonably
calculated to cause and did cause rendition of an improper judgment in this case.
(Tex. R. App. P. 44.1 (a)(1); (Appellant’s Brief, p. 28). The Appellant also
provided argument in the Appellant Brief (p. 15) that the Appellant’s counsel
miscalculated the community estate during mediation, not being in accordance
with Texas Family Code § 7.009 Fraud on the Community; Division and
Disposition of Reconstituted Estate; alleviating the Appellee’s argument stated in
the Appellee Brief (p. 12).
7 Argument
The premise of the arguments posed by the Appellee’s counsel is centered
on the compliance of the MSA and the “Fraud” arguments being unsupported by
the record. The Appellee’s counsel states that “In the absence of any evidence of
fraud in procuring the mediated settlement agreement, Judge Stephens properly
entered judgment granting the divorce based on the parties' mediated settlement
agreement when the mediated settlement agreement met the requirements of Texas
Family Law Section 6.602”. (Appellee Brief, p. 5)
In accordance with the Texas Civil Appeals Code Guide (Chapter 8 Appellant’s
Reply Brief, Paragraph 8.5 Argument, p. 267), “new issues raised in the reply brief
are generally waived; however, an appellate court may consider a new issue under
appropriate circumstances” (N.P. v. Methodist Hosp. 190 S.W.3d217, 225). It is
imperative to notify the Court that the Appellee’s statement that the evidence of
fraud procuring the MSA was absent is not a valid statement of fact. The Appellant
possessed evidence that was acquired supporting the Fraud allegation that was
acquired before the MSA was signed and continued to acquire evidence supporting
Fraud after the MSA was signed; and submitted all evidence over to his attorney
Mr. James Bettersworth. When the Appellant discovered that his wife (the
Appellee) had released and stole unclassified/For Official Use Only, Corporate
Proprietary Material and Intellectual Property, that was protected by Federal Non-
8 Disclosure Agreements, from 5 major Department of Defense Contractors and
DOD departments, to an unauthorized and 3rd party; he notified his attorney that he
was required to report the NDA breach, in accordance with NDA requirements, to
the Federal Bureau of Investigation. This report was filed with the FBI on March,
13th 2014; 1.5 months prior to the Motion to Revoke the MSA and Divorce
hearing, that was held on April 28th, 2014. The Appellee’s Counsel was not
notified of this report; nor was the Court, by the Appellant’s Attorney. This report
to the FBI contained reported allegations from the Appellant, not only of the
Federal NDA Information Breaches, but also of additional Federal Crimes of
Computer crimes or intrusions into computer networks, particularly those
associated with National Security; Corrupt activities in state, local, or federal
governments or in law enforcement; Financial crimes that involve Fraud, Mortgage
Fraud, or other investment fraud schemes where significant dollar losses have
occurred; Extortion; Color of Law Abuses; Fabrication of Evidence; House
Stealing; and Intellectual Property Theft. The FBI in took the report and notified
the Appellant that they would review the submitted evidence; but that the case
would more than likely be handled in the Civil Court. When this evidence was
ready to be presented to the 207th District Court, in support of the Motion to
Revoke the Mediated Settlement Agreement, it was not presented to the Court by
the Appellant’s attorney; and subsequently not with the Motion for New Trial that
9 was subsequently withdrawn. The Appellant was provided counsel by post hearing
separate counsel, that the Fraud evidence possessed, required the attention of the
District Attorney. On 18 September, 2014, the Appellant filed the following list of
criminal charges with the Comal County Sheriff’s Department Criminal
Investigative Division:
PC 15.01 Criminal Attempt PC 15.02 Criminal Conspiracy PC 16 Criminal Instruments, Interception, Use of Oral Communication PC 21 Sexual Offenses PC 22 Assaultive Offenses PC 31 Theft (house stealing) PC 32 Fraud PC 32 Subchapter B Forgery PC 32.32 False Statement to Obtain Property PC 32.34 Deceptive Business Practices PC 32.45 Misapplication of Fiduciary Property or Property of Financial Institution PC 32.46 Securing Execution of Document by Deception PC 32.47 Fraudulent concealment of Writing PC 32.51 Fraudulent use or Possession of Identifying Information PC 33.02 Computer Crimes, Breach of Computer Security PC 34.02 Money Laundering PC Chapter 36 Corrupt Influence PC Chapter 37 Perjury and other Falsification
The Appellant’s Attorney, also fully aware of this criminal charges filing, did not
inform the Appellee’s Attorney, that criminal charges were being filed by the
Appellant. The Comal County Criminal Investigative Division has conducted an
initial screening of the Case # 14-09-2882, and submitted it forward to the Comal
County District Attorney. The Comal County District Attorney has not dismissed 10 the case, and is holding pursuance of action of the case, awaiting confirmation of
civil proceedings from the 3rd Court of Appeals Appeal Case decision. The Comal
County District Attorney maintains current possession of the evidence that
supported the Appellant’s Motion to Revoke the MSA; thus the Appellant notifies
the Court that this appropriate extenuating circumstance of the “absence of
evidence”, was not absent, and that the Appellant was prepared to present the
evidence, but was misrepresented by his attorney with the Appellant’s attorney
choosing not to present the evidence on the Appellant’s behalf, thus supporting
Appellant Argument #4. If the evidence possessed that was supposed to be
presented to the Court in the Motion to Revoke the MSA is substantial enough for
the District Attorney to consider for criminal charges filed; it should have been
substantial enough for the Appellant’s Attorney to present to the Court, and for the
Judge to properly hear.
Appellee Brief Argument I. MSA in Question Complies with Section 6.602 thus
Requiring Rendition of Judgment on the MSA.
Appellee’s Counsel argues that “Cojocar’s argument is based on a flawed reading
of the MSA or a flawed reading of the statute-in either instance it is wrong.”
(Appellee Brief, p. 6) As stated in the Appellant’s Brief (p. 17), “Texas Family
Code § 6.602. MEDIATION PROCEDURES paragraph (a) states that “On the
written agreement of the parties or on the court's own motion, the court may refer
11 a suit for dissolution of a marriage to mediation”. The two parties did not possess
a written agreement to mediate in accordance with the TFC § 6.602; thereby not
fully complying with the Texas Family Code § 6.602 stipulation. This extract from
the Texas Family Code is not a flawed reading of the statute. The statute clearly
states that in order to be compliant with the code, an Order to Mediate is required
to be produced by written agreement of the parties or on the court’s own motion.
Both attorney’s in this case failed to commence this mediation process in
accordance with the specified instructions outlined in TFC § 6.602(a). Failure to
abide by the code, by the two Texas State attorneys does not substantiate or justify
a lack of full compliance of the code. An order to mediate was not produced by
both attorney’s nor signed by a Judge, as required by the code, thereby starting off
the mediation session being non-compliant with TFC § 6.602(a). This is
substantiated by the decision from the 10th District Court of Waco 2004 Case, Lee
vs. Lee, which does reference other districts, articulates that in this case, “there
was no written agreement to mediate and there is no court order.” This case
specifically states that because there was no written agreement to mediate and no
court order to mediate that the Court, and that the parties had not complied with
Section 6.602; therefore the Court committed error by entering the divorce decree.
This Case versed the MSA based on the simple fact there was no written
agreement or court order. (RR, p. 9) Additionally, as stated in the Appellant’s Brief
12 (p. 23), The Texas Family Code § 6.602 (d) also states that: “A party may at any
time prior to the final mediation order file a written objection to the referral of a
suit for dissolution of a marriage to mediation on the basis of family violence
having been committed against the objecting party by the other party”. Prior to
Mediation Order No. C-2013-0134, being heard by the 207th District Court of
Comal County, on 28 April 2014, the Appellant filed a Motion to Revoke the
Mediated Settlement Agreement, on 22 January 2014, with two subsequent
amendments on 24 and 25 April 2014. This filing of the Motion to Revoke the
MSA met the criteria of Texas Family Code § 6.602 paragraph (d), due to the
filing of the Motion to Revoke the MSA being filed prior to the final mediation
order hearing, which occurred on 28 April 2014. The 207th District Court
Honorable Judge Charles Stephens ordered, “I'm going to let the Third Court
decide if that's what you want to do; I'm going to enter the divorce decree today
and if there's some things we need to talk about today whether or not it complies
with the Mediated Settlement Agreement we can talk about that.” (RR, p. 16) The
Court made the decision to enter the divorce decree on 28 April 2014, without
allowing the Appellant to present the evidence to substantiate the Motion to
Revoke the MSA. The Appellant also counters the Appellee’s Argument B, that
“Even If Parties' MSA Did Not Satisfy Section 6.602{a}, Section 6.602 Still
Requires Rendition of Judgment on Parties' MSA” (Appellee Brief, p. 7), and the
13 statement that the Appellant’s argument results in an “absurd reading of the
statue” and a “construing the statute” (Appellee Brief, p. 8). The reading of the
statue is clear and the requirement for Texas Family Code § 6.602, paragraph (a) is
clear as specified. No absurd reading or construing of the statute occurred.
Appellee Brief Argument II. Cojocar's "Fraud" Arguments Unsupported by the
Record. The Appellee’s counsel states that “Cojocar failed to preserve his
complaints for appellate review, but also the undisputed evidentiary record is
devoud of any evidence whatsoever that the agreement was illegal or that Carrillo
procured the agreement by fraud, duress, or other dishonest means” (Appellee
Brief, p. 10); and that “Cojocar did not preserve his complaint that Judge Stephens
erred in not hearing testimony in support of Cojocar’s allegation that Carrillo
committed fraud in procuring the MSA.”(Appellee Brief, p. 11) This argument fails
to counter the Appellant’s Argument #2 (Appellant’s Brief, pp. 27-30). The
Appellant clearly notifies the Court that the trial court erred by denying the
Appellant’s Motion to Revoke the Mediated Settlement Agreement and failed to
consider the above listed and other substantial evidence that the Appellant was
fraudulently induced into signing the MSA, and did so under duress. This evidence
was introduced to the Court in the Appellant’s Motion to Revoke the Mediated
Settlement Agreement and the Motion for New Trial. The Appellee’s Counsel also
fails to discount his personal withholding of critical discovery evidence prior to the
14 Mediated Settlement Agreement; his intimidation and coercion tactics used to
intimidate the Appellant during the mediation session, using proclaimed possession
of maintaining evidence that would damage the Appellant; when in fact he
(Appellee’s Counsel) publicly voiced he never viewed, but claimed he had in his
possession, (Appellee’s Response to Interrogatories, p. 5); and through his attempt
to coerce the San Antonio Computer Doctor to blacken out the Appellee’s name on
the Subpoena to Compel Production of Documents and Tangible Things Affidavit,
to further conceal evidence that should have been submitted in Discovery; which
was further requested by the Appellant’s Counsel in the Motion to Revoke to
Compel for Discovery and Sanctions. As stated in the Appellant’s Brief (p. 30)
“The trial court erred by denying the Appellant’s Motion to Revoke the Mediated
Settlement Agreement and failed to consider the above listed and other substantial
evidence that the Appellant was fraudulently induced into signing the MSA, and
did so under duress.” Had the Appellant been afforded the opportunity to view the
concealed and withheld evidence that was not presented by the Appellee’s
Discovery (pre-mediation session), he would not have signed the MSA and
requested a trial by jury for Marital Fraud, Fraud, Securing the Execution of a
Document by Deception (Documents being the two Mortgage Closings and the
Appellee’s 23 July 13 House Sale Contract), and House Stealing. The Appellee’s
Counsel states that, “After hearing on Cojocar’s second amended motion to revoke
15 the MSA, Judge Stephens stated Cojocar was welcome to put on testimony to
support his fraud based claims for revocation of the agreement” (RR 1:19-20); and
that “Cojocar voluntarily elected not to provide any such testimony at that time”
(id). This is a false statement. The Appellant’s Counsel informed Judge Stephens
that he possessed newly discovered evidence and subpoenaed witnesses to present
to the court; but as stated by Judge Stephens, he did not wish to hear the evidence
prepared and informed the Appellant’s Counsel that he would have to file a Motion
for New Trial; in which case the Appellant’s Counsel did not insist on the evidence
possessed for fraud be heard. (RR, p. 20-21) This refutes the Appellee’s argument
that “No Argument was made or evidence offered to the trial court concerning
Cojocar’s complaint that the attorney miscalculated the community estate during
mediation.” (Appellee Brief, p. 12) The Appellant “Cojocar did not chose to
pursue his fraud claim at that time”; it was the Appellant’s Counsel who chose to
not pursue the Appellant’s fraud claim at that time; which support’s the
Appellant’s Argument #2, that he was misrepresented by his counsel. The
Appellant was in the back of the court room, could not hear what was going on,
and when called to the bench, notified Judge Stephens that he was not in agreement
with the divorce (Appellant’s Brief, p. 38; RR, p. 34), thus supporting the
Appellant’s Argument #5. The Appellee’s Counsel accuses the Appellant for
“Throwing his lawyer under the bus does not void the MSA” (Appellee’s Brief, p.
16 12-13). The Appellant provided his counsel all of the evidence to support the
Motions to Compel and Revoke the MSA based on Fraud and Fraudulent
inducement into signing the MSA; and the Appellant’s Counsel failed to pursue the
presentation of this prepared evidence, that prompted Judge Stephens to grant the
divorce and deny the Appellant his right to present the evidence to support his
case; and in doing so, the 207th District Court Honorable Judge Charles Stephens
so stated: “I'm sure we'll be back here dealing whether or not we're going through
the whole thing again.” (RR, p. 18) These errors amounted to a denial of the
Appellant’s rights as it reasonably calculated to cause and did cause rendition of an
improper judgment in this case. (Tex. R. App. P. 44.1 (a)(1); (Appellant’s Brief, p.
28).
17 Prayer
WHEREFORE, PREMISES CONSIDERED, Appellant William J. Cojocar, asks
the Court to: (1) reverse the judgment for decree of divorce in order to permit the
Appellant to file a Motion for New Trial with the 207th District Court to present
all facts and evidence that support the pursuance of fraud and fraudulent
inducement into the Mediated Settlement Agreement, to attain a fair and equitable
division of the marital estate and property; and (2) allow the Appellant the
opportunity to present to the District court the Crimes and Torts that have been
committed against the Appellant by the Appellee; and (3) modify the Decree of
Divorce to expunge the false inclusion of the 2012 IRS tax statement that was
erred from being deleted from the final Decree of Divorce; (4) grant such other and
further relief to which he may show himself justly entitled, and (5) grant the
Appellant the opportunity to conduct an Oral Argument to aid the Court’s
decisional process in this appeal.
18 Certificate of Compliance
Pursuant to TEX. R. APP. P. 9.4, I hereby certify that this Appellant Brief contains
3,505 words. This is a computer-generated document created in Microsoft Word,
using 14-point typeface for all text, except for footnotes which are in 12-point
typeface. In making this certificate of compliance, I am relying on the word count
provided by the software used to prepare the document.
/s/ William J. Cojocar William J. Cojocar, Ph.D. Pro Se Counsel
19 Certificate of Service
The undersigned hereby certifies that a true and correct copy of this brief was
served by fax and email to counsel for Sally Carrillo, being Clinton Lawson,
Attorney at Law, 755 E. Mulberry St. Suite 200, San Antonio, Texas 78212.
/s/ William J. Cojocar
William J. Cojocar, Ph.D.
Pro Se Counsel