Pate, Chadrick B

·•. . . . . . .: • : : : - l

1~.rus-o~

. i

May 18, 2015

Clerk of the Te:xas Court of Criminal Appeals

201 West 14th Street RECEIVED IN

Austin, Texas 78701 COURT OF CRIMINAL APPEALS

Nema Bardin MJ).Y 19 2015

POBox 772

Abel Acosia, Clerk

Austin, Texas 78767

Re: Enclosed Original Writ of Habeas Corpus Chadrick B. Pate Applicant #01563340, Nema Bardin

Pe.tit.i.c\w.r awl Eme..rge..w:y ~M.v.ti.c\t:~ .fnr nr.ig.ir..wJ W..r.i.t .o.f Jhbe.as CntpJ.JS Relief CJ:w.D.r~tck B, P.ate

#01563340 Ap,plicant, Nema Bardin Petitioner.

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

Applicant Pate: presented his initial 11.07 Habeas Corpus to the trial Court made returnable to this

Court.

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

"adjudication 'on the merits " by the Trial Court or by the Court of Criminal Appeals.

nt:~ J2/5/J 4 .AJ-1Uli.c.aut .fiJe.d .a .Mo.t.int:~ fD V.ac.af.e Vni.d JJ.Jdglm>..ut iut.o ib.e trial ,e.our.t..AppJ.i,e.aut .a..;;.kt>.d nt

numerous occasions for a decision from the trial court. The trial court refused to answer and has not

corresponded 'lwithApplicant at all, and that Motion was withdrawn on 5/18/15.

I am now as the Petitioner bringing this Original Writ on behalf of my son Chadrick B. Pate pursuant to

Article V, Sec.:S, Constitution of Texas and pursuant to Texas and United States Common Law.

Please file the Writ as an Emergency In The Interest of Justice, as my son has been imprisoned for 7

years under thtis Void Judgment obtained through illegal proceedings held by the trial court which

violated his 1s1., 6th and 141h Amendment rights under the United States Constitution.

The trial court committed fraud upon the court, The 13th Court of Appeals, The Texas Criminal Court··-.

o.f~4_Aru".a..ls .aw.ll .t..be LT. S. Fe.de..r.aJ Di..~.t 0:\!.lr.t SDJ.\t..be..rn Di.."-tr.ic.t, HDJ.l-'\tnt:~ T.e.Y.aS w..be..t:~ tbey B.rs.t ..beJd

an illegal joint trial and obtained a conviction through holding illegal proceedings and filing illegal

entries into the: trial court, and then submitting a Void Judgment Record to The 13th Court of Appeals,

•crit-s wart ~ 1'-e~C:!S Curnt Di Cimi1J.f"d1 h~d1-s), m1~ tire \3. <;:,. "'ttitt:rro Dt~trtt1"l Curnt '2,uctcrtemDnta:tt1"l ,

Houston Texas

runderstand tfnat these are fofty and serious cfaims and f have supported the cfaims with the triaf court

records, and affidavits which are contained in the Exhibits of the Writ.

1.

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

cc: file

Writ Hand Delivered COCA

IN THE COURT OF CRIMINAL APPEALS AUSTIN, TEXAS

WRIT NO.

EX PARTE FROM THE THE DISTRICT COURT

CHADRIC:K B PATE 36TH JUDICIAL DISTRICT

\

TDCJ #015(63340 ARANSAS COUNTY, T~XAS

.. ,

CAUSE NO. A-08-5080-4CR

COVER SHEET

IN THE COURT OF CRIMINAL APPEALS AUSTIN, TEXAS

WRIT NO.

EX PARTE FROM THE THE DISTRICT COURT

CHADRIC:K B PATE 36TH JUDICIAL DISTRICT

TDCJ #015163340 ARANSAS COUNTY, TEXAS

CAUSE NO. A-08-5080-4CR

APPLICATION FOR ORIGINAL WRIT OF HABEAS CORPUS PURSUANT TO

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

Constitution Texas Common Law And United States Common Law

TO THE HOr~ORABLE JUDGE OF SAID COURT:

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

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

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

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

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

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

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

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

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

1

JURISDICTION

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

by a court without jurisdiction is a nullity.

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

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

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

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

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

2.

PROCEDURAL HISTORY

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Sote: Judge J. Price delivered the opinion in Ex Parte Casey Tyrone Sledge No. A-P-76497 and opined that if applicant had raised his present

claim in his orginal 'Writ, "We would not hesitate to reach the merits and if appropriate grant relief.

3.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

MANDATORY RELEIF

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

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

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

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

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

Petitioner request evidentary hearing if the Court cannot determine that releif is required

tk.-uagi\" tire lAY-s'~·

4

STATEMENT OF THE CASE

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

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

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

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

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

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

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

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

Criminal Justke in 2009.

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

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

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

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

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

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

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

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

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

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

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

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

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

5.

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

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

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

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

Applicant's Conviction.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

on 11103/08 .

6.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

convince<him that his Timely filed "Motion for Severance of Defendant and Offenses " filed 7/31/08

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

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

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

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

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

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

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

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

The trial court and it's officers committed fraud on the court when they set into motion a scheme

7.

calculated to i1nterfere with the judicial system's ability impartially to adjudicate the matter of

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

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

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

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

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

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

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

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

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

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

APLICANT'S CLAIMS/ GROUNDS FOR RELEIF

Claim# 1.

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

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

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

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

Claim# 2.

The Trial Cou1rt committed Fraud and Fraud upon the Court by the Court, when The Court and

it's Officers .

l.Entered into a scheme of deliberate misuse of the judicial process designed to defeat

Applicant's Chaim oflnnocence by: Disobedience to the Orders ofthe Judiciary, relentless repeated

fraudulent act:s of the filing of fraudulent proceedings, documents, Orders, Motions, and Notices

Through Lies, Omissions. Commissions and Concealment. (and)

2.Tampering with the Administration of Justice through acts designed to degrade the Judicial system

and lying to tlue Court and to The Tier Of Fact. 3. Certifying a Fraudulent Record into the 13th Court of

Appeals, Crimiinal Court of Appeals Austin Texas, and the U.S District Court Southern District,

Houston Texas;

Claim #3.

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

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

1. Disobeyed a Court Order and Failed to hold Applicant's Scheduled Court Ordered Jury Trial

Dati! m:t U-1-M..

2. Failed to Prosecute

3. Proceeded to a Joint Jury Trial after losing Jurisdiction to Proceed.

-1. Hmla't'itl.rg R-e t1Tcfl1 ~m Se91;}.1fl.l\.,"\:' S~·m.ti'l.T R\:1\.,"'C\1\n~ liti\5- 1 Ci\'apt"\;r 28 A.t-ttble 28JNSct:'ttmT

1(5) Se:ction 2

5. TRCP41, Criminal Justice Standards Part 11 Standard 13.2.1 and Sec. 310

6. V10hfing Rules ol"Ev1oence (:)14(3)

7. Violating Govt.Code Title 2 Subtitle D.Chap.51Sec.51.901 Subsection J.

Violating Gov1:.Code Sec. 51.303 (a)(b) (1) and Subsection D.(c)

8. Violatimg TCCP Title 1. Chap. 2 Article 2.01

9. TCCP Title 1 Chapter 1 Article 1.05

10. Violating TRAP Rule 34.5 (a), (a)2

11. Violating Tx. R. Civ.301 TCCP Title 1. Chapter 28 Section1(5) and Section 2.

Claim 4.

Ineffective Assistance of Counsel

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

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

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

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

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

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

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

"l~peared at he:arin_gs without "lP_plicant's knowled_ge , misr~presented "l~Plicant at _pre trial

9.

hearings and mt trial, concealed Orders of the court from applicant failed to secure a hearing

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

cooperated with State's attorney to convict.

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

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

FACT 1.

INDICTMENT

Ex#2

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

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

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

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

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

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

APPLICANT'S CLAIM UNDER 1 and 3

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

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

to Defendants and Offenses.

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

Court Jury tha.t Applicant was a party to both counts charged in the Indictment and that he was a gang

Jfi_

member when in fact they had no evidence of gang related offenses or membership to support the

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

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

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

Office.

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

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

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

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

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

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

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

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

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

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

Because the trilal court violated U S Constitutional 141h Amendment Due Process Rights and Statutory

l>tQI'.J"..dJJJ:e'i- Th1e. trial ~n:t. ln.'it. 9.ui'iflir..tjJW. tn, tp:QI'.J".J"..d tn, t.J:i.al . .fulm.wm "~~ ~b.U.. 3.0A U.S 4.~

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

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

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

11.

FACT2.

INDICTMENT EX# 2

The indictment charges Murder under Texas Penal Code 19.02 Felony Murder

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

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

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

19.02 which states:

§ 19.02 MlffiU>ER. (a) In this section:

(!)"Adequate eause" means cause that would commonly produce a degree of anger, rage, resentment,

or terror in a_p(;;!rson of ordinary tell!per, sufficient to render the mind inc~pable of cool reflection.

(2)"Sudden pa:ssion" means passion directly caused by and arising out of provocation by the individual

killed or another acting with the person killed which passion arises at the time of the offense and is not

rolft!JJ t.bft. -.:P..~J.lt. Q{ {QJ:mf"J.. ~Q"\{Qr.Jlljnn_.

(b )A person commits an offense if he:

(1) intentionalLy or knowingly causes the death of an individual;

(2/ ~- ru- \.."'4\ThY ~~ mniiiy· irrjaty '4mi "vmm«s- an .n.:t d~".rrly· d-~mr ru- lrmmr« lik

that causes the death of an individual; or

{3) commits or attempts to comrriit a felony, other than mans·laughter, and "in the course ol and "in

furtherance of ·the commission or attempt, or in immediate flight from the commission or attempt, he

commits or att(;;!mpts to commit an act clearly dangerous to human life that causes the death of an

individual.

(c) Except as plrovided by Subsection (d), an offense under this section is a felony of the first degree.

(d)At the punishment stage of a trial, the defendant may raise the issue as to whether he caused the

death under the immediate influence of sudden passion arising from an adequate cause. If the defendant

proves the issu.e in the affirmative by a preponderance of the evidence, the offense is a felony of the

Reennd .tkg..rre..

APPLICANT'S Claim UNDER 1,2 and 3

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

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

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

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

7.02, or 7.03 in connection with the charge of murder under Texas Penal Code 19.02. See Ex# 2

12 .

Indictment In ·Cause No. A-08-5080-4CR.

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

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

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

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

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

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

confuse the jwrors and to convict A_p_plicant.

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

law applicable to this case is as follows:

COUNT ONE

1.

Our law provides that a person commits murder if he intentionally or knowingly causes the death of an

individual. (itt is true that this statement comports with 19.02 2 (b) 1.

2.

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

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

statement found)

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

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

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

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

3.

13

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

both.

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

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

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

party to a crin:1e.

FACT3.

CAPIAS AND WAIVER OF ARRAINGMENT

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

See Ex# 3 Applicant's Criminal Docket Sheet.

APPLICANT'S CLAIM UNDER# 3

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

fraudulent indictment.

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

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

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

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

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

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

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

63 S. Ct. 822 9 Led 2d.

14.

FACT4.

WAIVER OF ARRAIGNMENT

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

Applicant's Criminal Docket Sheet. NO CLAIM

PRE TRIAL DATE AND ANNOUNCMENT DATE

'C{W;\\.~ M-V~~"t..W~ \\£'C{}\\\) ~"£.)

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

Case Set Pre trial 7/24/08

Ann. 7/31/08

JT 8/4/08

APPLICANT'S Claim UNDER 3 and 4

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

Rules

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

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

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

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

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

Fact3

7/24/08

DISCOVERY RULED ON

COURT REPORTS RECORD (NONE)

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

Discovery Rulled On

J!i

APPLICANT'S CLAIM UNDER 2,3, AND 4

Fraud, Ineffective Counsel, and Violation of Due Process

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

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

rule . There is 100 recorded record of this proceeding. However there are Discovery Orders that Judge

Jant:W w.hat.t'Jy .TJ.ll.t-.d .nn

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

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

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

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

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

742_.752 (Tex. 200~).

Fact4

7/31/08

Motion for Continuance Granted I Reset Dates

COURT REPORTER'S RECORD (NONE)

On 7/31108 entered onto Applicant's Criminal Docket sheet is Ex#4

MFC Granted

Ann. 9/25/08

J.T. 9/29/08.

APPLICANT'S CLAIM UNDER 2,3, AND 4

Fraudl Violation of Due Process and Statutory Procedures and Ineffective Counsel

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

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

A_p_plicant's du.e _process rights to an im_partial fair trial, o_p_portunity to be heard and notice. And

16

violation of statutory procedure. TCCP Title 1 Chapter 1 General Provisions Article 1.05 Rights of

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

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

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

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

Fact 5.

7/31108

Applicanfs Motion for Severance of Defendant's and Offenses

It is not Recorded on Applicant's Criminal Docket Sheet EX # 4

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

See Ex# 1 Motion for Severance.

APPLICANT'S CLAIM UNDER 2,3 AND 4

Ineffective Assistance Violations of Due Process Fraud on the Court

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

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

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

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

S.W.3d 742.• 75i2 [Tex. 200~).

Fact 6.

'}1,1.~Q£

Court Reporter's Record Volume 2 of9 Announcement Chadrick B.Pate A-08-5080-4CR See Ex# 5

Sl'-dl'es" 1lfotfun rurContinw.mc-e

Applicant's Request for a Decision on his Motion for Severance of Defendants and Offenses.

Judge Wellb orns Reason for Continuing the matter of the Motion for Severance to the next Pre

Trial Hearing. District Clerk Duties and Reset Dates

17

On 9/25/08 entered onto Applicant's Criminal Docket sheet is Ex # 4

States Motion 1to Continue Granted

Reset 1113/08 JJury Trial

10/03/08 Announcement

10/23/08 Pre Trial.

APPLICANT'S CLAIM UNDER 2,3 AND 4

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

Court by the Court

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

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

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

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

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

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

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

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

discretion.

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

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

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

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

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

Motion for Sfeverance of Defendant's and Offenses that had been filed timely on 7/31108. See Ex#5

Cnurt ~rt·et:~ RJ!co.cd v.nl2. n( 9 tpJPJ!.~ 3 lin£. 9-25 awl tpJP,;e 4. lin£.~ t-4...

Judge Wellbonn continued the Matter of the Severance stating that the reason was that he was waiting

18

to find out if he was going to need to appoint the Co defendant Christopher Hall a new attorney. See

Ex#S page 31ines 13-18. Judge Wellborn gave no valid reason to continue the matter of the

Severance.

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

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

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

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

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

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

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

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

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

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

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

of paper in the Applicant's file.

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

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

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

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

Order)

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

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

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

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

representationt of a matter of fact by words, conduct or by concealment of what should have been

19

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

(emphasis ad<lled) In re: E.P. 185 S.W.3d 908 (Tex. App. -Austin 200~).

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

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

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

the Clerk.

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

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

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

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

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

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

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

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

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

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

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

prior to 9 25/08. Applicant filed his motion on 7/31/08 and certified a copy to the States attorney. See

ILY..#. t '/AV,i!- 2..

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

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

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

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

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

20

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

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

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

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

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

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

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

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

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

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

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

1r.wJ

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

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

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

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

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

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

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

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

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

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

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

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

21

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

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

Fact 7;

10/23/08

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

Entered onto Applicant's Criminal Docket sheet is EX #4

10/23/08 Case: called for Pre 'trial Conference

APPLICANT'S CLAIM UNDER 3; AND 4

Ineffective Counsel Violation of Statutory Procedures

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

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

Rodgrigez.

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

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

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

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

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

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

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

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

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

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

22

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

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

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

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

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

2d.

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

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

Fact 8.

10/23/08

APPLICANT'S CASE WAS SEVERED

COURT REPORTER RECORD VOLUME 4 OF 11 CHRISTOPHER HALL A-08-5080-2CR

PRE TRIAL SEE EX# 8

Entered on Cruristopher Hall's Criminal Docket sheet is Ex# 12

Reset: 1/5/08 9~.00am

12/22/0)8 9.00am

11/25/08 9.00am

APPLICANT'S CLAIM UNDER 2;3 AND 4

FRAUD OI~ THE COURT BY THE COURT, INEFFECTIVE CONUSEL, VIOLATION OF

DUEPROCESSANDSTATUTORYPROCEDURES

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

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

Defense Attonney.. The Applicant did not appear.

23

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

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

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

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

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

s line 1-25

pilnge 6 line 1-24.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Whenever this; fraud is committed by any attorney or judge, it is a "Fraud upon the Court"

24

In Eugene Le:e Armentrout et. al;, lit 2D 242 75 Ill Dec 703 457 N;E.2d 1262 (1983): Regenold V;

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

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

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

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

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

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

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

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

Record Ex# 8 reflects the Severance.

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

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

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

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

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

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

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

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

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

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

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

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

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

25

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

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

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

the Clerk.

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

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

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

loses jurisdictiionrand cannot proceed. Fay v. Noia 372 U.S. 391 63 S. Ct. 822 9 Led 2d, Aoude v.

.Mruw

- O» -- £ .2rl JJJ.Sr

- -C.nr-p... .89.2 '

JJJ.8{J st Clr~.wt J_9.8_9).._;~JJ'.~.p;.

...... - _.,.._ .... - . - --.... - - -- -

.U6 .& W.. .2D@ DDJ;K.iDg ~

Ranch, Inc. v. Chapman, 118 S.W.3d 742,752 (Tex.2003)

Fact 9.

10/30/08

FRAUDULEJNT PROCEEDINGS ENTERED ONTO APPLICANT'S CRIMINAL DOCKET SHEET

SEEEX#4

•COURT REPORTER'S RECORD ON 10/30/08 PROCEEDINGS (NONE)

Entered onto Applicant's Criminal Docket Sheet is Ex#4

Defendants Motion for Continuance

Reset 1/5/09 Jury Trial

12/22/0B Ahliotincement

2/9/09 Jmry Trial

APPLICANT'S CLAIM UNDER 2, 3 AND 4

Fraud on 1the Court Violation of Due Process and Statutory Procedures Ineffective Counsel

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

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

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

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

Applicant was; not notified of any proceedings for 10/30/08 either by his Attorney or the Court.

26

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

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

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

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

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

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

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

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

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

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

amendments atre not complied with the court loses jurisdiction to proceed. Johnson v. Zerbst 304

U.S. 458 Sup. Ct. 1938.

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

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

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

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

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

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

Fraud is defin<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 repr•esentation of a matter of fact by words, conduct or by concealment of what should have

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

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

27

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

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

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

the Clerk.

Fad 10.

11/03/08

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

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

Courts Violation of it's Court Ordered

T..rial nat~ Otf J J.CV0.8lu C.au,c;;e Nn .4 -.o.8-5.01W-4C.R C.b.ru:b:ll-.1~ B .P.ro~ RJ'pru-tJ>n RJ>s-nr.d

w w - •• -

Y~ 2

of9 Ex# 5

APPLICANT'S CLAIM UNDER 2,3, AND 4

Fraud on the Court by the Court, Ineffective Counsel

Violation of Due Process and Statutory Procedure and Rules.

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

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

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

Trial Date.

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

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

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

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

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

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

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

28

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

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

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

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

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

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

742;752 (Tex~ 2003)~

Fact 11.

11/25/08

CO DEFENDANT CHRISTOPHER HALL PRE TRIAL HEARING A-08-5080-2CR COURT

REPORTER RECORD VOLUME 5 OF 11 EX# 13

FRAUDULJENT DISCUSSIONS OF APPLICANT'S MOTION FOR SEVERANCE AND TRIAL

DATES.

APPLICANT'S CLAIM UNDER 2,3, AND 4

Ineffective~ Counsel, Fraud on the Court by the Court, Violation of Due Process a Statutory

Procedures and Rules

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

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

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

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

W. 2d 700, 7CG3 (fx. 1990) •

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

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

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

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

29

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

his understandling.

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

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

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

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

30

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

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

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

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

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

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

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

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

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

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

defendant Christopher

- Hall and the Trail Court refused to proceed to trial. Applicant

.._ -- was not before the

court for adjudication the court had already lost jurisdiction. Mapco Inc. v. Forrest, 795 S. W. 2d

7.Q.f4 7.fl1 (t'L t'l'lfl\-.

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

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

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

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

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

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

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

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

31

Fact 12.

12/22/08

FRAUDLENT PROCEEDINGS ENTERED ON BOTH APPLICANT CHADRICK B. PATE AND CO

JDEFENDANT CHRISTOPHER HALL'S CRIMINAL DOCKET SHEETS

SEEEX#4

ANDEX#12

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

On Applicant's: Criminal Docket Sheet the following fraudulent proceedings are entered. Ex#4

Continuance Grtanted

Reset 2/9/09 Jury Trial

215/f.tCJ .Ao..tJ!\lloc.e.~ut

On Co Defend ant Christoper Hall's Criminal Docket Sheet the following fraudulent proceedings are

'a'A~ro. ¥-""A# ·lNl

12/22/08 ContiLnuance Granted.

Reset to Feb. Trial Docket

APPLICANT'S CLAIM UNDER 2;3; AND 4

Fraud on tbae Court by the Court, Ineffective Counsel, Violation of Due Process and Statutory

Procedures and Rules.

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

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

not before the court for adjudication the court had already lost jurisdiction. Mapco Inc. v. Forrest,

7.9!t .S. W.. 2rl 7.0{\. 703 (T.x.. J_9_9fl}..

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

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

recorded on tbte record of the court.

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

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

matter when in fact jurisdiction had been lost. Fraud occurs when a party sets into motion a scheme

J2

calculated to imterfere with the judicial system's ability impartially to adjudicate a matter by

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

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

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

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

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

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

Fact 13.

2/5/09

F'RAUDLENfT PROCEEDINGS ENTERED ONTO APPLICANT'S CRIMINAL DOCKET SHEET

SEEEX#4

COURT REPORTER'S RECORD FOR 2/5/08 UNDER APPLICANT'S NAME OR CAUSE

NUMBER (NONE)

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

2/5/09 All Ready

APPLICANT'S CLAIM UNDER 2,3 AND 4

Fraud on the Court by the Court, Ineffective Counsel, Violation of Due Process and Statutory

Procedures and Rules

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

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

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

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

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

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

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

33

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

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

Fact 14.

2/5/09

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

SEE EX# 14

FRAUDULENT CASE NUMBER AND VOLUME NUMBERS WERE ENTERED ON CO

DEFENDANT CHRISTOPHER HALL'S 2/5/09 PRE TRIAL HEARING COURT REPORTERS

RECORD.

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

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

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

Volume 1-11 MASTER INDEX

FACT 15

2/5/09

FRAUDULJENT DISCUSSION OF APPLICANT'S DECISION ON PUNISHMENT BETWEEN

JUDGE WHATLEY AND DEFENSE ATTORNEY JOHN GILMORE

CONCEALMENT OF FRAUDULENT PROCEEDINGS

APPLICANT'S CLAIM UNDER 2,3, AND 4

Fraud and Fraud om the Court, Ineffective Counsel, Violation of Due Process and Statutory

Procedures and Rules

Co defendant Christoper Hall's Ex# 16 Indictment, Ex# 12 Criminal Docket Sheet, and all other

Court Report.er's Records Ex#'s lllllll/l/lllll/llllll/11/11

identify Hall's: Cause No. A-08-5080-2CR not S-08-5080-2

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

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

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

34

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

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

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

See EX# 15 3RD PAGE TABLE OF CONTENTS

Volume 1 of 111 Master Index

Volume 2 of 1:1 Pre trial Motions (7/24/08) (there is no Court Reporter's Record on this)

Volume 3 of 11 Announcement (9/25/08)

Volume 4 of 1:1 Pre Trial Hearing (10/23/08)

Volume 5 of 1Jl Pre Trial Hearing (11/25/08)

Volume 6 of 111 Jury Trial Voir Dire Proceedings (2/9/09)

Vn.lnm~ 7 nf JJJ ..Jury T.r.ial Gnililnnn~u (2l9.1fl9)

Volume 8 of li Jury Trial Guilt innocence (2/i0/09)

Volume 9 of 1:1 Jury Trial Guilt Innocence (2/11/09)

v~1~m11 3YtTj '"\'TYI.\ 06\\i \'rtmrt.~~ \'l~\1.W8)

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

l!':S!I'N Court Reporters Record ~ofume 5-A of ff was not recorded onto tfte Ta6fe ofContents ofco

defendant's Jmdgment Roll like all the other above listed volumes were, and was not submitted to The

13'h Court of Appeals where co defendant filed his Appeal .. Judge Whately and Pam Heard the District

Clerk submitte,d a fraudulent Judgment Record to the Courth of Appeals This fraudulent Cause No

entered onto thLe Court Reporters Record and fraudulent volume number is part of the scheme that the

officer's of the court _participated in to conceal _proceedings from the court and '!J)_plicant and influence

the tier of fact,. and deceive any future proceedings held by any other officer's of the court.

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

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

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

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

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

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

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

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

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

calculated to interfere with the judicial systems' ability impartially to adjudicate a matter by

35

improperly infrluencing the trier of fact or unfairly hampering the presentation of the opposing party's

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

36

FACT 16.

2/9/09 The Illegal Trial of Applicant

FRAUDULE1NT PROCEEDINGS OF JOINT JURY TRIAL OF APPLICANT CHADR1CK B. PATE

~N.O CO UE.FE.NOAN1: CHlU~.TOPB.ER HALL

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

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

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

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

they submitted as a fair and impartial Jury trial.

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

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

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

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

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

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

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

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

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

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

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

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

Their fraud in •entering a different cause number and out of seq_uence volume number on

CoUrt Reporter Record Volume 5-A of 11 .

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

including it hn the Record that they sent to the Court of Appeals is more than suspicious. It was at this

37

hearing that Jrudge Whatley and Officer's schemed to make it appear that Applicant had appeared and

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

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

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

the fraud.

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

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

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

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

I

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

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

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

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

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

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

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

due process were abused.

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

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

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

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

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

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

Clerk went to announce her to the Judge, when she came back she told her that the Judge told her to go

38

back down there and she would be allowed to go in. She went inside and was told to stand on the back

wall because there was no seating for her.

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

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

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

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

jury trial.

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

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

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

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

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

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

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

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

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

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

heard and notiice.

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

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

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

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

testify.

Applicant was brought to the trial in Leg Restraints. There is no Court Order ordering him to wear Leg

39

Restraints and no hearing on the matter. Someone in the audience stated out loud.( that person was a

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

and only son.

APPLICANT'S CLAIM UNDER 2,3. AND 4

Every single event at the 2/9/09 joint trial of Applicant was Fraud upon the Court and a violation

of Applicant's Right to Due Process under both the Texas Constitution and the u. s. Constution.

40

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

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

EA.cr t7.

FRAUDULENT RECORDS IN CERTIFICATION OF APPLICANT'S JUDGMENT ROLL TO THE

~3TH C&..PRTOF APPEALS CORPUS CllRlSfl TEXAS, CRliHlNAL COURT OF APPEALS,

AUSTIN, TEXAS AND THE U.S. DISTRICT COURT SOUTHERN DISTRICT OF TEXAS AT

HOUSTON TEXAS

6/24/09

Applicant's Claim under 2,3, and 4

6/24/09

ERATJOTlLEl!\TT RECORDS. lN. CERilflCA.TlON Of A.PPLlCANT'S. JUDGMENT ROLL TO THE

i3tH COURT OF APPEALS CORPUS CHRISTI TEXAS

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

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

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

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

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

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

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

says it was a p1roceeding that was held and it was filed into Cause No. A-08-5080-4CR.

The District Clerks Office (Pam Heard's Office ) also certified that the Order was a proceeding

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

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

Heard committed Fraud on the Court.

The Index (Judgment Record inA·08•5080 ..4CR) that Judge Whately and Pam Heard submitted to the

41

Court of Appeals is not only fraudulent for listing the Order on the Motion for Severance as a

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

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

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

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

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

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

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

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

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

Overturned lomg ago.

1.

Proceeding 0111 10/30/08 Defendant's Motion for Continuance Reset dates Jury Triall/5/09

An.OlliJD£.eQJ,l\1 t2Ll2lfl8.\.

2.

Proceeding 12/22/08 Reset dates Jury Trial2/9/09 Announcement 2/5/09

3.

Proceeding 2/5/09 All Ready

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

See: Trap Rule 34.5 (~)states Contents

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

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

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

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

contendre an;y documents entered for the plea.

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

The Order Granting Applicant's Severance dated 9/25/08 EX#6 is the Order that Judge Wellborn said

42

that he signedl by mistake and the same order that The District Clerk had called just a piece of paper in

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

entered on Applicant's Criminal Docket sheet.

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

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

entitled eitht;~r in law or equity .

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

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

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

\

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

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

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

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

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

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

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

FACT 18

The District Clerk's Responsibility to report fraudulent documents

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

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

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

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

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

duty of the District clerk if the clerk has reasonable basis to believe in good faith that a

43

fraudulent doeument or instrument has been previously filed or recorded or offered or

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

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

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

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

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

Applicant's Claim Under 2 and 3

Fraud on the Trial Court, and Courts of Appeals

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Sheet after the~ 10/23/08 hearin_g.

44.

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

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

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

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

Ex#9

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

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

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

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

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

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

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

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

:1£.,,

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

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

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

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

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

Michael Wellborn to Carrie Crisp.

Facts in The Trial Court Record regarding the claims in Judge Wellborn's letter do not comport with

the: .cJ.aitr.\,'\

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

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

45.

provided a decision with factual findings on the Record

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

finding the Mcotion Moot.

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

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

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

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

Granting or Dtenial of same and notice _provided.

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

Judge to sign and provide said order to the judge and they go over the Motion and Order together.

It is not the clerk that _prepares or _presents the Order, it is the Maker ofthe Order.

John Gilmore 1told the Applicant and his Mother who both inquired numerous times that the Motion for

Severance was denied, He told Applicant's Mother this only a few days before trial when she insisted

that he find outt what was _goin_g on with the severance.

CONCLUSION

Because the trial court proceeded to a joint jury trial with the co defendant when Applicant

Chadrick B. P'ate and the natter were not properly before the court for adjudication, the trial

court had no j1urisdiction to enter a Void Judgment, Sentence and Conviction against him and

illegally impri son him in the Texas Department Criminal Justice System.

All of the Fact:s Presented Both On The Record of the trial court and Outside the Courts Record and

SuQported by the Courts records or sworn affidavit verify the Conclusion that At>t?licant's Judgment is

Void.

46.

That Conviction was acquired through the Violation of Applicant's Due Process Rights to a fair and

impartial trial, opportunity to be heard and Notice, and that Officers of the Court committed Fraud

on the Court b:y the Court in order to obtain an illegal Conviction of the Applicant.

They each one and all at one time or another made intentional misrepresentations to the Court, were

deceitful, usedl trickery concealed facts, were _passively silent, _prevented a decision on a defense

motion presentted fraudulent documents, entered fraudulent proceedings and used deception by

commission, by omission, by speech, by silence, and by innuendo to obtain the conviction

The trial court: _proceeded to trial when they had no jurisdiction over A_p_plicant or the matter

and gained an illegal conviction that illegally imprisoned Applicant,

Applicant nor the issue were properly before the court for adjudication. The trial court violated

A_p_plicant's Due Process Rights to a impartial and fair trial, o_p_portunity to be heard, and notice

through their ~violations of Applicant's Due Process, fraud and fraud upon the court that caused the

Court to lose j urisdiction to proceed to trial and to enter a Void Judgment, Conviction and Sentence.

Johnson v. Ze1rbst 304 U S 458 Sup Ct , Fay v. Noia 372 U S 391 (1963)

Mapco Inc. V~ Forrest, 795 S W 2d 700.703 (Tx. 1990) See Armstrong v. Obucino 300 III

140,143 (192l), Bracey v. Warden US Supreme Court No 96-6133 (June 9th 1997)

Exparte Youn:g 418 S. W. 2d 214.223(Tx. Crim. App. 1977.

Fraud may comsist of both active misrepresentation and passive silence. Vela v. Marywood

17 S. W. 3d 7'50, review denied with per curiam opinion 53 S W 3d 684 rehearing of petition for

review deniedl (Tex App. Austin 2000).

"Fraud Upon the Court" has been defined as that fraud committed by an officer of the court in any

attempt to dec:eive, either by commission, by omission,by speech, by silence, by gesture, by innuendo

47

by look, etc. \Vhenever this fraud is committed by any attorney or judge, it is a "fraud upon the Court"

In Eu_gene Le:e Armentrout et. al.,'Ill. 2D 242 75 Ill Dec 703 457 N.E.2d 1262 (198~): Regenold v.

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

2D 222,229,66 Ill. Dec.623, 443 N.E.2d 549 (1982); BuUoch v. United States k 763 F 2d 1115,1121

(1985); Root )Refining Co. v. Universal Oil Products Co., 169 F2d 514 (1948) ·

Fraud occurs when a party sets into motion a scheme calculated to interfere with the judicial system's

ability impartially to adiudicate a matter by improperly influencing the trier of fact or unfairly

hampering the: presentation of the opposing party's claim or defense. AOUDE v. Mobil Oil Corp.,

892 F.2d. 1115,1118 (1st Cir. 1989).

[t is fraud that denies a losing litigant the opportunity to fully litigate at trial his rights or

defenses that could have been asserted. Alexander, 266 S W 2d@ 1001: King Ranch, Inc. v.

Chapman, 118 S W 3d 742,752 (Tex. 2003).

[n Fay v. Noia. the court observed: Criminal proceedings so fundamentally defective as to make

imprisonment ]pursuant to them constitutionally intolerable should not be allowed to obscure the basic

continuity in the conception of the Writ as remedy for such imprisonment.

48

PRAYER

Whereforce Petitioner Prays that the Court grant Chad rick B. Pate releif from which he is

entitle«d in this proceeding, that includes an Order for his Immediate Release from

Incarceration,

OrdJtt Va.:atin~ an.d Diun.is.~ ~ Vnid .lu.d.PJD£nt , Sellf£n£e, a.n.d. Cnn.v.id.inn.,

an Onrder Removing the Conviction from all Judaical and Government Records,

And ·an Ordenr that Sanctions the Trial Court and it's Officers of the Court for the fraud and due

~ tNkAtimM ittllkted IYp'tflT Clndrkk B Pdre. Aad aa,· «ker mid tlttrt l$ ttfwNahk M /rim.

&4'\.

IN THE COURT OF CRIMINAL APPEALS AUSTIN, TEXAS

WRIT NO.

EX PARTE FROM THE THE DISTRICT COURT

CHADRIC:K B PATE 36TH JUDICIAL DISTRICT

TDCJ #015,63340 ARANSAS COUNTY, TEXAS

CAUSE NO. A-08-5080-4CR

.OATH

STATE OF' TEXAS,

COUNTY OF TRAVIS

I NEMA BARDIN BEING DULY SWORN, UNDER OATH SAYS: I AM THE PETITIONER

iN THIS ORI,GINAL HABEAS CORPUS ACTION AND KNOW THE CONTENTS OF THE

ABOVE APPJLICATION FOR WRIT OF HABEAS CORPUS AND, ACCORDING TO MY

BELIEF, Tffi~ FACTS STATED IN THE APPLICATION ARE TRUE.

l'l-\-~

SUBSCRilliJED AND SWORN TO BEFORE ME MAY Hrf'H 2015 •

. . . . . . ~!"k~',,, N. A. CADENA

bt.A;~t---.. Notary Public, State of .Texas

L.<.. ~) ~ .. My commission Exp1res

NOTARY PUBLIC

-..,;.;._....~~+? october ac, 20l8

.,,,,,?,~,,......... . .. .. ·-~

sc.

IN THE COURT OF CRIMINAL APPEALS AUSTIN, TEXAS

WRIT NO.

EX PARTE FROM THE THE DISTRICT COURT

CHADRIC:K B PATE 36TH JUDICIAL DISTRICT

TDCJ #015t63340 ARANSAS COUNTY, TEXAS

CAUSE NO. A-08-5080-4CR

PETITIONER'S INFORMATION

NEMABA.RDIN

P. 0. Box 7·72

Austin, Tex:as 78767

512-487-0197 cell

CERTIFICATE OF SERVICE

I do hereby certify that a true original of the above and foregoing Application of Original Habeas

Corpus w~ils personally hand delivered on the 191b day of May, 2015 to The Texas Court of

Criminal Appeals Clerk's Office at 201 W. 14tb Street Austin, Texas 78701

~~~ner

51.

IN THE COURT OF CRIMINAL APPEALS AUSTIN, TEXAS

WRIT NO.

EX PARTE FROM THE THE DISTRICT COURT

CHADRIC:K B PATE 36TH JUDICIAL DISTRICT

TDCJ #015(63340 ARANSAS COUNTY, TEXAS

CAUSE NO. A-08-5080-4CR

COVER SHEET

TABLE OF CONTENTS

IN THE COURT OF CRIMINAL APPEALS AUSTIN, TEXAS

WRIT NO.

EX PARTE FROM THE THE DISTRICT COURT

CHAD RICK 18 PATE 36TH JUDICIAL DISTRICT

TDCJ #015632~40 ARANSAS COUNTY, TEXAS

CAUSE NO. A-08-5080-4CR

TABLE OF CONTENTS

LETTER TO CLERK COURT OF CRIMINAL APPEALS

COVER SHEET

EXHIBIT LIST (2 PAGES)

EXHIBITS 1-24

ORIGINAL WRIT OF HABEAS CORPUS (51 PAGES)

JURISDICTION PAGE 2

PROCEDURAL HISTORY PAGE.3 AND 4

STATEMENT OF THE CASE PAGE 5-8

CLAIMS/GROUNDS FOR RELEIF PAGE 8-10

FACTS SUPPORTING CLAIMS GROUNDS FOR RELEIF PAGE 10-46

CONCLUSION PAGE 46-48

PRAYER PAGE 49

OATH PAGE 50

CERTIFICATE OF SERVICE PAGE 51

TABLE OF CONTENTS PAGE

-·.......

'

IN THE COURT OF CRIMINAL APPEALS AUSTIN, TEXAS

WRIT NO.

EX PARTE FROM THE THE DISTRICT COURT

CHADRIC:K B PATE 36TH JUDICIAL DISTRICT

TDCJ #015163340 ARANSAS COUNTY, TEXAS

CAUSE NO. A-08-5080-4CR

EXHIBIT LIST

Ex# 1 Motiom of Defendant Chadrick Pate for Severance of Defendant's

Ex # 2 Indictment

Ex # 3 Char~~e of the Court

Ex # 4 Crimimal Docket Sheet of Applicant Chadrick B. Pate

Ex # 5 9/25/018 Reporters Record Volume 2 of 9 Chadrick Pate

Ex # 6 Ordenr on Motion for Severance Chadrick Pate 9/25/08

Ex # 7 Affidavit of Stacy Deville (On statement from Pam Heard on Mistake of Severance Order

page ll paragraph 3

Ex # 8 10/23/'08 Reporters Record Volume 4 of 11 Pre trial hearing Christopher Hall A-08-5080-

2CR

Ex# 9 Judge! Wellborn's letter to Carrie Crisp Applicant's Habeas Attorney

Ex# 10 Carri·e Crisp letter to Judge Wellborn

Ex# 1110/23/1~8 Reporter's Record Volume 3 of 9 Chadrick Pate Motion to Dismiss A-08-5080-

4CR

Ex# 12 Criminal Docket Sheet Christopher Hall A-08-5080-2CR --.

E..x# L" JJ.l2..".1fl8 JUpnrt.u.s Runrrl Vnhun.e .5 nf JJ pr£ ir.ial Ju>.ar.i.og Chr.i~.u Hall _A-.0.8·:SJl8.0-

2CR

Ex# 14 2/5/019 Reporters Record Volume SA of 11 pre trial hearing S-08-5080-2

t.:\.¥t -...~ Ytmt~ \Tt&a. C'f.m+~ \WI. <:-mart\\~~ \\u-m-1! 'hko.WA 1m 11 ~ 'l

Ex# 16 Indic·tment Christopher Hall A-08-5080-2CR

Ex# 17 2/9/09 Reporters Record Volume 4 of 9 page 102 line 9-25 Chadrick Pate A-08-5080·

.:rCR

Ex# 18 Repo•rters Record Volume of pages 259lines 1-25

Ex# 19 Affid:avit of Applicant Chadrick Pate on Leg Restraints

Ex# 20 Reporters Record Volume 6 of9 page 221lines 1-25 Chadrick Pate

Ex# 21 Index of Events certified to Court of Appeals Chadrick Pate

Ex# 22 JudgDDent Front Page Chadrick Pate A-08-5080-4CR

Ex# 23 District Clerk Certification to the Court of Appeals

Ex# 24 Judge Whately'S certification to the Court of Appeals of all proceedings.

IN THE COURT OF CRIMINAL APPEALS AUSTIN, TEXAS

WRIT NO.

EX PARTE FROM THE THE DISTRICT COURT

CHADRIC:K B PATE 36TH JUDICIAL DISTRICT

TDCJ #015~63340 ARANSAS COUNTY, TEXAS

CAUSE NO. A-08-5080-4CR

COVER SHEET

EXHIBIT 1

MOTION OF DEFENDANT CHADRICK PATE FOR SEVERANCE OF DEFENDANT'S

Case 4:13-cv-00709 Document 5-13 Filed in TXSD on 05/17/13 Page 37 of 60

CAUSENO. A-08-5058-4CR

THE STATE OF TEXAS • IN THE DISTRJCT COURT

vs. • 361h JUDICIAL DISTRICT

CHADRICK PATE • ARANSAS COUNTY, TEXAS

MOTION OF DEFENDANT CHAQRICK PATE

FOR SEVERANCE OF DEFENDANTS

TO THE HONORABLE JUDGE OF SAID COURT:

NOW COMES the Defendant, Chadrick Pate, by and through his attorney John

Gilmore, and respectfully moves this Court for an order severing the offenses charged

against this Defendant in the indictment herein from the offenses charged the co-

defendants and for a separate trial thereon, on the grounds that this Defendant is by the

joinder herein and for good cause would respectfully show unto the Court as follows:

I.

Defendant believes that there are previous admissible against the co-defendants

( ;

in this case.

II.

Further, we believe that there will be conflicts in the defenses of this Defendant

and the co..;defendants which will be prejudicial to Defendant if they are tried together.

III.

A joint trial of Defendant and his co-defendants poses a security risk to Defendant

and to trial participants and spectators.

WHEREFORE, Defendant respectfully prays that this Honorable Court sever him

from the co·defendant indicted herein and order a separate trial of the charges against

him from the offenses charged the co-defendants and for such other and further relief as

this Honorable Court may deem just and proper.

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. ·-'-··~:Grn :;8..-lt·fl·\·,,:~;,;r.i Clerk-· · ··

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-·

Case 4:13-cv:oo709 Document 5-13 Filed in TXSD on 05/17/13 Page 38 of 60

Respectfully submitted,

622 S. Tancahua/ P. 0. Box 276

Corpus Christi, Texas 78403

(36ruil'. ~82-4378/phone

(361 .882·3635ffax

A ORNEYFOR DEFENDANT

BARNO. 07958500

CERTIFICATE OF SERVICE

I, John Gilmore, do hereby certifY that a true and correct copy of the foregoing Motion

of Defendant Chadrick Pate for Severance of Defendants has been served on Aransas

County District Attorney's Office, Nueces County Courthouse, 301 N. Live Oak Street,

Rockport, Texas on this the,'?~y of July, 2008.

~

.?J1

IN THE COURT OF CRIMINAL APPEALS AUSTIN, TEXAS

WRIT NO.

EX PARTE FROM THE THE DISTRICT COURT

CHADRIC:K B PATE 36TH JUDICIAL DISTRICT

TDCJ #015~63340 ARANSAS COUNTY, TEXAS

CAUSE NO. A-08-5080-4CR

COVER SHEET

EXHIBIT 2

INDICTMENT

INDICTMENT

THE STATE OF TEXAS va •. MICHAEL JASON UNDERWOOD, CHRISTOPHER JOSEPH HALL,

ANTHONY LEE RAY, CHADRICK B. PAT~ AND KEVIN RAY TANTON

OFFENSE Murder, Aggravated Assault /Engaging In Organized Criminal Activity

TPC Sec. 19.02/ Firat Degree Felony

TPC Sec. 22.02/71.02/1 Firat Degree Felony

WITNESS·. Michael Brooks, Ruaaell Kirk

:~.~:~:~~:.:.~~~=~~. :~:.~~. . . :.::!::. . . :~:.::~~.:

IN THE NAME AND BY AUTHORITY OF THE STATE OF TEXAS

Count One

COMES NOW THE GRAND JURORS for the County of Aransas, State aforesaid, duly

selected, organized, impaneled and swom as such at the April Term, A.D, 2008, of the 36th Judicial

District Court, in and for said County, a quorum thereof being prese.nt, upon their oaths present in

and to said Court that MICHAEL JASON UNDERWOOD, CHRISTOPHER JOSEPH HALL,

ANTHONY LEE RAY, CHADRICK B. PATE, and KEVIN RAY TANTON, acting alone and

together, on or about the 4th day of January, A.D. 2008 and anterior to the presentment of this

Indictment, in the County and State aforesaid, did then and there intentionally or knowingly cause

the death of an individual, namely, Aaron Watson, by shooting the said Aaron Watson with a

firearm;

Count Two

AND THE GRANO JURORS AFORESAID, upon their oaths aforesaid, do further present in

and to said Court that MICHAEL JASON UNDERWOOD, CHRISTOPHER JOSEPH HALL, ·

ANTHONY LEE RAY, CHADRICK B. PATE, and KEVIN RAY TANTON, acting alone and

together, on or about the 4th day of January; A.D: 2008 and anterior to the presentment of this

Indictment, in the County and State aforesaid, did then and there intentionally, knowingly or

recklessly cause serious bodily injury to Aaron Watson by shooting the said Aaron Watson with a

handgun, the same being a firearm;

And the defendants did then and there commit said offense with the intent to establish,

maintain, or participate in a combination or in the profits of a combination who collabprated in

carrying on said criminal activity;

against the peace and dignity of the State

IN THE COURT OF CRIMINAL APPEALS AUSTIN, TEXAS

WRIT NO.

EX PARTE FROM THE THE DISTRICT COURT

CHADRIC:K B PATE 36TH JUDICIAL DISTRICT

TDCJ #015163340 ARANSAS COUNTY, TEXAS

CAUSE NO. A-08-5080-4CR

COVER SHEET

EXHIBIT 3

CHARGE OF THE COURT

Charge Jmy p. I

Cause No. A-08-5080-4· CR

THE STATE OF TEXAS § IN THE DISTRICT COURT OF

§ ARANSAS COUNTY, TEXAS

CHADRICKB.PATE § 36TII JUDICIAL DISTRICT

CHARGE OF THE COURT

MEMBERS OF THE JURY:

The defendant, CHADRICK B. PATE, stands charged by indictment with the

offenses of COUNTS 1 MURDER, alleged to have been committed on or about

January 4, 2008 in Aransas County, Texas; and COUNT. 2 AGGRAVATED

· ASSAULT, alleged to have been committed on or about Janwuy 4, 2008, in Aransas

County, Texas. The defendant is also alleged to have committed ~e offense of

Aggravated Assault in Count 2 while ENGAGING IN ORGANIZED CRIMINAL

ACTIVITY. The defendant has pleaded not guilty to each offense you are

instructed that the law applicable to this case is as follows:

COUNT ONE

1.

Our law provides that a person commits murder if he intentionitlly or

knowingly causes the death of an individual.

,.

Charge Jury p. 2

2.

A person acts intentionally, or with intent, with respect to a result of his

conduct when it is his conscious objective or desire to cause the result

A person acts knowingly, or with knowledge, with respect to a result of his

conduct when he is aware that his conduct is reasonably certain to cause the result.

A "deadly weapon" means a firearm

•Individual" means a human being.

3.

7. c:,---~ Cet.)C~j

Our laws provide that a person is criminally responsible as a party to an

offense if the offense is committed by his own conduct, by the conduct of another

A person is criminally responsible for an offense committed by the conduct \

\

of another if, acting with intent to promote or assist the commission of the offense,

he solicits, encourages, directs, aids, or attempts to aid the other person to commit

offense. Mere presence alone will not constitute one

f'6Y1A l 0od..<e ~(.) -\: { 11. t h._~

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~~-t-V¥\- e.-w-\. rvt c.Js-\ \1 -e pYt) \)e\ 4. Ch'"'\? 1

Now, if you find from the evidence beyond a ~onable doubt that on or

about January 4, 2008, in Aransas County, Texas, the defendant, CHADRICK B.

Charge Jury p. 3

PATE, acting alone or together with Michael Jason UndetWood, Christopher Joseph

Hall, Anthony Lee Ray, and K,evin Ray Tanton, did then and there intentionally or

knowingly, cause the death of an individual, namely, Aaron Watson by shooting the

said Aaron Watson with a firearm, then you will find the defendant guilty of

Murder.

Unless you so find from the evidence beyond a reasonable doubt, or if you

have a reasonable doubt thereof: you will acquit the defendant of murder as

alleged in Count One

If you have found the defendant guilty of Count 1 do not proceed to Count

Two of Aggravated Assault

COUNT TWO

5.

Our law provides that a person commits an aggravated assault if the person

intentionally, knowingly, or recklessly causes serious bodily injury to another.

6.

A "deadly weapon" means a firearm.

Charge Jury p. 4

The term "serious bodily injury" means bodily injury that creates a

I

substantial risk of death or that causes death, serious permanent disfigurement, or

protracted loss or impairment of the function of any bodily member or organ.

7.

A person acts intentionally, or with intent, when it is his conscious objective

or desire to cause the result.

A person acts knowingly or with knowledge, when he is aware that his

conduct is reasonably certain to cause the result

A person acts recklessly, or is reckless, with respect to the result of his

conduct when he is aware of but consciously disregards a substantial and

unjustifiable risk that the result will occur. The risk must be of such a nature and

degree that its disregard constitutes a gross deviation from the standard of care

that an ordinary person would exercise under all the circumstances as viewed from

the actor's standpoint.

8.

Our laws provide that a person is criminally responsible as a party to an

offense if the offense is committed by his own conduct, by the conduct of another

Charge Jury p. 5

for which he is criminally responsible, or by both.

A person is criminally responsible for an offense committed by the conduct

of another if, acting with intent to promote or assist the commission of the offense,

he solicits, encourages, directs, aids, or attempts to aid the other person to commit

the offense. Mere presence alone will not constitute one a party to a crime.

9.

A person commits an offense of Engaging in Organized Criminal Activity if,

as a criminal prison gang, he commits Aggravated Assault.

10.

"Criminal prison gang" means three or more persons having a common

identifying sign or symbol or an identifiable leadership who continuously or

regularly associate in the commission of criminal activities.

11.

It is no defense to prosecution for the offense of Engaging in .Organized

Criminal Activity that:

(1) one or more members of the combination are not criminally responsible

Charge Jury p. 6

for the object offense;

(2)' one or more members of the combination have been acquitted, have not

been prosecuted or convicted, have been convicted .of a different offense, or are ,

immune from prosecution;

(3) a person has been charged with, acquitted, or convicted of said offense;

or,

(4) once the initial combination of three or more persons is formed, there is a

change in the number or identify of persons in the combination as long as two or

more persons remain in the combination and are involved in a continuing course of

conduct constituting an offense of Engaging in Organized Criminal Activity.

LIMITING INSTRUCTIONS

You are instructed· that if there is any evidence before you in the case

regarding the existence of a criminal prison gang, the defendanf s membership in a

criminal street gang, and/or the criminal street gang's commission of criminal

activities, such evidence, if any, was admitted for the limited purpose of aiding you,

if it does aid you, in determining the issues of the defendant's guilt or innocence of

engaging in organized criminal activity, and for no other. This evidence, if any,,.can

only be considered by you after you have determined the defendant is in fact guilty

of one or more of the offenses charged. You may consider this evidence for that

Charge Jury p. 7

purpose, and no other. To find the defendant guilty of Engaging in Organized

Criminal Activity, each element of the crime must be proven beyond a reasonable

doubt

You are instructed. that if there is any testimony before you in this case

regarding the defendant's 'having committed offenses other than the one for which

he is now on trial, you cannot consider said testimony for any purpose unless you

find and believe beyond a reasonable doubt that the defendant committed such

other offenses, if any were committed, and even then you may only consider the

same in determining the motive or identity of the defendant, and for no other

purpose.

12.

Now, if you find from the evidence beyond a reasonable doubt that on or

about January 4, 2008, in Aransas County, Texas, the defendant, CHADRICK B.

PATE, acting alone or together with Michael Jason Underwood, Christopher Joseph

Hall, Anthony Lee Ray, and Kevin Ray Tanton, did then and there intentionally,

iD

knowingly, or recklessly, cause serious bodily injury,11Aaron Watson by shooting the

said Aaron Watson with a Handgun, the same being a firearm. You will find the

defendant guilty of Aggravated Assault as alleged in Count Two

Unless you so find from the evidence beyond a reasonable doubt, or if you

have a reasonable doubt thereof, you will acquit the defendant of Aggravated

Charge Jury p. 8

Assault as alleged in Count Two

If you have found the defendant guilty of Aggravated Assault in Count 2,

answer the following special issue - otherwise, do not answer this special issue.

SPECIAL ISSUE

Do you find the evidence beyond a reasonable doubt that on or about

JaV1v.qr~ ~~zooj in ~l~ County, Texas, the defendant, CHADRICK B. PATE,

member of a criminal prison gang? Answer "Yes" or "No."

13.

You are instructed that an accomplice as the tenn is herein after used means

any person connected with the crime charged,_ ~- a._p!lf1y thereto, and includes all

=-=

person who are connected with the crime, as such parties, by unlawful act or

omission on their part transpiring either before or during the time of the

commission of the offense. A person is criminally responsible as a party to an

offense if the offense is committed by his own conduct, by the conduct of another

for which he is criminally responsible or by both. Mere presence alone, however,

will not constitute one a party to an offense.

The witnesses Michael Jason Underwood, Anthony Lee Ray, and Kevin Ray

Tanton are accomplices. If an offense was committed, you cannot convict the

defendant upon accomplice testimony unless you first believe that the testimony is

Charge Jury p. 9

true and shows the defendant is guilty as charged and then you cannot convict the

defendant upon said testimony unless you further believe that there is other

testimony in the case, outside the evidence of the said witnesses Michael Jason

Underwood, Anthony Lee Ray, and Kevin Ray Tanton tending to connect the

defendant with the offense committed, if you find that an offense was committed,

and the corroboration is not sufficient it merely shows the commission of the

offense but it must also tend to connect the defendant with its commission, and

then from all the evidence you must believe beyond a reasonable doubt that the

defendant is guilty of the offense charged against him.

14.

Our law provides that a defendant may testify in his own behalf if he elects

to do so. This, however, is a privilege accorded a defendant, and in the event he

elects not to testify, that fact cannot be taken as a circumstance against him. In this

case, the defendant has elected not to testify,. and you are instructed that you

cannot and must not refer or allude to that fact throughout your deliberations or

take it into consideration for any purpose whatsoever as a circumstance against the

defendant.

A grand jury indictment is the means whereby a defendant is brought to trial

in a felony prosecution. It is not evidence of guilt nor can it be considered by you

in passing upon the question of guilt of the defendant. The burden of proof in all

Charge Jury p. 10

criminal cases rests upon the State throughout the trial and never shifts to the

defendant.

All persons are presumed to be innocent and no person may be convicted of

an offense unless each element of the offense is proved beyond a reasonable

doubt. The fact that he has been arrested, confined, or indicted for, or otherwise

charged with the offense gives rise to no inference of guilt at his trial. The law

does not require a defendant to prove his innocence or produce any evidence at all.

The presumption of innocence alone is sufficient to acquit the defendant unless

the jurors are satisfied beyond a reasonable doubt of the defendant's guilt after

careful and impartial consideration of all the evidence in the case.

The prosecution has the burden of proving the defendant guilty and it must

do so by proving each and every element of the offense charged beyond a

reasonable doubt and, if it fails to do so, you must acquit the defendant.

It is not required that the prosecution prove guilt beyond all possible· doubt;

it is required that the prosecution's proof excludes all "reasonable doubt"

concerning the defendant's guilt.

In the event you have a reasonable doubt as to the defendant's guilt after

considering all the evidence before you, and these instructions, you will acquit

him and say by your verdict ''Not Guilty."

You are the exclusive judges of the facts proved, of the credibility of the

Charge Jury p. 11

witnesses, and the weight to be given their testimony, but you must be governed

by the law you shall receive in these written instructions.

After you retire to the jury room, you should select one of your members as

your Presiding. Juror. It is his or her duty to preside at your deliberations, vote

with you, and, when you have unanimously agreed upon a verdict, to certify to

your verdict by using the appropriate form attached hereto and signing the same as

the Presiding Juror.

During your deliberations in this case, you must not consider, discuss, nor

relate any matters not in evidence before you. You should not consider nor

mention any personal knowledge or information you may have about any fact or

person connected with this case which is not shown by the evidence.

No one has any authority to communicate with you except the officer who

has you in charge. After you have retired, you may.·communicate with this Court

in writing through this officer. Any communication relative to the cause must be

written, prepared and signed by the Presiding Juror and shall be submitted to the

Court through this officer. Do not attempt to talk to the officer who has you in

charge, or the attorneys, or the Court, or anyone else concerning any questions you

may have.

Your sole duty at this time is to determine the guilt or innocence of the

defendant under the indictment in this cause and restrict your deliberations solely

Charge Jury p. 12

to the issue of guilt or innocence of the defendant.

Foilowing the arguments of counsel, you will retire to consider your verdict.

Date/time: -~-J./_tL-...i/!-~~1___

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Charge Jury p~ 13

Cause No. A-08-5080-2- CR

THE STATE OF TEXAS § IN THE DISTRICT COURT OF

§ ARANSAS COUNTY, TEXAS

CHADRICKB. PATE § 36TII JUDICIAL DISTRICT

VERDICI' FORMS

COUNT ONE

We, the Jury, find the Defendant, CHADRICK B. PATE, GUILTY of

MURDER, as alleged in the indictment

!?nv:LJ ;J ~

PRESIDING JUROR

(~ 0~

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~

We, the Jury, find the Defendant, CHADRICK B. PATE, NOT GUILTY of

MURDER.

PRESIDING JUROR

H you find the Defendant not guilty of Murder as alleged in Count One,

then proceed to Count Two.

.. .'

Charge Jury p. 14

Cause No. A-08..5080-4- CR -

THESTATEOFTEXAS § IN Tiffi DISTRICT COURT OF

§ ARANSAS COUNTY, TEXAS

CHADRICK BLAKE PATE § 361H JUDICIAL DISTRICT

VERDICT FORMS

COUNT TWO

USE ONLY ONE FORM:

We, the Jwy, find the Defendant, CHADRICK B. PATE, GUILTY of

AGORAVATED ASSAULT, as alleged in the indictment.

PRESIDING JUROR

SPECIAL ISSUE {Answer only if you have found the defendant guilty of this

count)

Did the Defendant, CHADRICK B. PATE, commit said offense as a member

of a criminal prison gang? (answer "Yes" or "No")

ANSWER:

orL

We, the Jury, find the Defendant, CHADRICK B. PATE, NOT GUILTY of COUNT

TWO.

PRESIDING JUROR

,

IN THE COURT OF CRIMINAL APPEALS AUSTIN, TEXAS

WRIT NO.

EX PARTE FROM THE THE QISTRICT COURT

CHADRIC:K B PATE 36TH JUDICIAL DISTRICT

TDCJ #015163340 ARANSAS COUNTY, TEXAS

CAUSE NO. A-08-5080-4CR

COVER SHEET

EXHIBIT 4

CRIMINAL DOCKET SHEET APPLICANT CHADRICK B. PATE

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NUMBER OF CASE STYLE OF CASE ' ATTORNEYS OFFENSE DATE OF FILING

Month Day Year

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IN THE COURT OF CRIMINAL APPEALS AUSTIN, TEXAS

WRIT NO.

EX PARTE FROM THE THE DISTRICT COURT

CHADRIC:K B PATE 36TH JUDICIAL DISTRICT

TDCJ #015j63340 ARANSAS COUNTY, TEXAS

CAUSE NO. A-08-5080-4CR

COVER SHEET

This text is long and has been trimmed here. Open the source document for the complete record.