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NO.

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IN THE TEXAS COURT OF CRIMINAL APPEALS

EX PARTE CHADRICK PATE

ON APPLICATION FOR ORIGINAL WRIT OF HABEAS CORPUS FROM THE

36TH JUDICIAL DISTRICT COURT ARANSAS COUNTY, TEXAS

CAUSE # A-08-5080-4CR

MOTION FOR LEAVE OF COURT TO FILE

ORIGINAL WRIT OF HABEAS CORPUS FOR FRAUD ON THE COURTS

AND ACTUAL INNOCENCE OR IN THE ALTERNATIVE

Patslrnt C°nfa'"nS*°™

attf»toneof,ma8ing.

V

WRIT OF MANDAMUS

COURTO^SrAPPEALS

SEP262017

DeanaWilliamson, Clerk

APPLICANT

CHADRICK PATE #1563340 ALFRED HUGHES UNIT 3109 FM 929

GATESVILLE, TEXAS

PETITIONER

PRO SE

NEMABARDIN

1801 WESTLAKE DR

#112

AUSTIN, TEXAS 78746

512-487-0197

bardinnema@yahoo.com

TO THE HONORABLE COURT OF CRIMINAL APPEALS

The attached Application for Original Writ of Habeas Corpus presents facts already

presented in part to the 36th Judicial District Aransas County Texas in subsequentWrits

of Habeas Corpus pursuant to Article

11.07 and returnable to this Honorable Court

which have never been considered or litigated.

The facts contained in the attached Writ and in the subsequently filed 11.07 Writs

contain facts supported by the Record (that is also attached ) that will prove by clear

and convincing evidence from that Record that but for Constitutional Error namely

Fraud on the Court(s) that no reasonable or rationale juror or factfinder would have

found the applicant Chadrick Pate Guilty of the underlying offense of Murder either as

a Principal or as a Party to the Offense.

The factual and legal predicate for the claim of Fraud on the Court(s) and Pate's Actual

Innocence could not have been discovered before Pate filed his Appeal or Initial Writ

because Officer's of the Court concealed their Wrong doing by omission and

commission, by concealing material facts and by tampering with the Court(s) Records,

and failing to provide Notice to Pate of Hearings, Motions, and Orders in the pre trial

proceedings in his case and in his co defendant's pre trial proceedings, that he had the

right to have Notice and Appear and be heard on.

Had Pate been given notice on these matters he could have filed pre trial Appeal or

1

Habeas Corpus, and obtained relief immediately prior to the trial. As the Writ explains,

numerous subsequent Writs have been filed over a period of now more than 3 years, and

each have been dismissed upon Petitioner's belief without cause or for minor procedural

errors where Applicant was never given opportunity to correct errors, but instead had to

refile each time

that this Honorable Court dismissed the Writs.

The Co defendant's trial was severed from Pate's Trial, Pate was not given notice, and

officer's of the court misrepresented the Severed Trials and made false entrys on the

Record that illegally rejoined Pate to Hall's trial all without Pate's knowledge or consent.

Pate had filed his own Motion for Severance that never received a Denial. Motion for

Continuance were filed by co defendant without notice to Pate, and Pate's trial was

continued with the co defendant 2 separate times without notice to Pate. The attached

record support and prove these statement's.

As this underlying Writ stands, there is no Actual Quick Remedy. If Pate must file once

again a Writ pursuant to Article 11.07 back in the Trial Court, his illegal incarceration

will linger on for many more unnecessary months or even years.

Pate has been incarcerated since May 5th, 2008 for an offense he did not commit, and for

which the State did not prove beyond a reasonable doubt. In fact there was NO evidence

that Pate committed the offense. The trial court record of Pate and the co defendant

support and prove these statements.

Prayer

Applicant prays that in the interest of Justice that this Honorable Court Grant this

Motion for Leave to File Original Writ of Habeas Corpus, or alternatively Writ of

Mandamus, or provide any Legal Remedy available to Applicant.

etitioner pro se

1801 WesjtlakeDr.#112

Austin, Texas 78746

512-487-0197

bardinnema@vahoo.com

du ?ok

Chadrick Pate Applicant

3201 F M

929

Gatesville, Texas 78746

CERTIFICATE OF SERVICE

The undersigned certifies a true and correct copy of this instrument was served this

day of Sept. 2017, upon The Aransas County District Attorney by placing the same in U. S. Mail with proper postage and addressed affixed to 301 North Live Oak St. Rockport,

Texas 78382.

?ma Ba/di

14801 WesttakeDr.#112

Austin, Texas 78746

512 487 0197

bardinnema@vahoo.com

INDEX TO APPLICATION ORIGINAL WRIT OF HABEAS CORPUS

PATE

CHADRICK

(i.)COVER SHEET WITH PARTY INFORMATION (ii. )INDEX OF AUTHORITIES

I. NATURE OF RELIEF SOUGH T.

^JURISDICTION AND RESTRAINT

III. PROCEDURAL HISTORY AND STATEMENT OF THE CASE

2

2-3

3-6

IV.

CLAIMS FOR RELIEF

6

A. GROUND ONE

6-22 ;

B. GROUNDTWO

22-3f

V

PRAYER

32

VI. CERTIFICATE OFSERVICE

33

VII.

CERTIFICATE OF COMPLIANCE

34

VIII. VERIFICATION

35

IX. APPENDIX WITH REPORTER'S RECORDS & EXHIBITS

36-37

(i)

IN THE TEXAS COURT OF CRIMINAL APPEALS

EX PARTE

WRIT NO.

CHADRICK PATE

'

APPLICATION FOR ORIGINAL WRIT OF HABEAS CORPUS

APPLICANT

CHADRICK PATE# 1563340

ALFRED HUGHES UNIT 3201 FM 929

GATESVILLE, TEXAS 76597

PETITIONER

NEMABARDIN

1801 WESTLAKE DR.

#112

AUSTIN, TEXAS 78746

512-487-0197

bardinnema@yahoo.com

(ii)

LIST OF AUTHORITES

Armstrong v. Obucino 300 111 140, 143 (1921),

19

Banks v. State 708 S. W. 2d 460,461-462 (Tex. Crim. App. 1986)

12

Bracey v. Warden U. S. Supreme Court No. 96-6133 ( June 9, 1997)

19

Ex parte Brooks 219 S W.3d 396,324-327

23

Browning

v. Navarro 743 F2d 1069 5th Cir. 1984

15

Browning v. Placke, 698 S W 2d 362(Tex,

1985)

citing Cooper v. Tex. Gulf Indus

16

Browning v Prostock

16

Calderon v. Thompson, 523 U. S. Supreme

Court 1998

22

Exparte Chabot, 300 S. W. 3d @ 772

7

Chappell v. State, Tex. Cr.App

25

Exparte Chavez 371 S. W. 3d 200,205-07 (Tx. Crim. App. 2012 )

Coffey v. State979 S. W. 2nd 326 ,328

(Tex. Crim. App. 1998)

Cooper v. Tex. Gulf Indus, nc. 513 S. W.

2d

200,204 Tex. 174)

7

12

16

Douglas v. State 3rd dist. Austin, Texas 2017

17

Easter v. State, Tex. Cr. App. 536 S. Wl 2d 223

25

1 Freeman on Judgments, 120

19

Foreman and Jones, Submitting Law of Parties in a Texas Criminal

0*0

Forney v. Jorrie 511 S.W. 379,384 Tex Civ. Appeal San Antonio 1974

writ refdn. re)

25

Garcia v. State, 630 S W 2d 303, 305 (Tex. App. Houston 1st Dist. (1981, no

pet)

16

Exparte Geter, Tx. Cr. App. 383 S W

2d 405

3

Exparte Gomez Tx. Cr. App. 241 S W 2d 153.Exparte

3

Harrison v. Whiteley, Tex. Com. App 6 S W 2 d

14

Holder v. Scott 396 S W 2d 906, (Tex.

Civ. Texarkana) 1965 writ ref. n.r.e

13

Jayconv. State, 651 SW 2d 803 -Tex: Court of Criminal Appeals 1983

Kenvit Med. Prods. Inc. v. N & H Instruments Inc. 616 F. 2d 833 , 837

(11th Cir. 1980) Quoting 7 Moore's Federal Practice and Procedure 60.33

Exparte Knipp 236 S W 3d 214 (2007

)

26

18

23

Layton, 141 S W 3d at 763:In Re Marriage of Ham. 59 S W 3d 326, 332

(Tex. App. Texarcana 2001, no pet) citing Forney v. Jorrie 511 S.W.

79,384 Tex Civ. Appeal San Antonio 1974 writ refdn. re)

Lectric Library "Parties" and "Service of Documents"

Ex parte Lemke, 13 S.W.3d 791,794

(Tex. Crim. App. 2000)

Exparte Leon Vance Madding 70 S. W. 3d 131 Texas Court Criminal Appeals2002

Exparte Milner 39.4 S W 3d 502 (2013)

Montgomery v. Kennedy 669, S W 2d at 313 Browning

Prostock 165 S W d at 348 Texas 2005

7 Moores Fed. Practice & Procedures 60.33

17

15

4

13

24

17

18

(ii)

Moore v. State Tex Cr. App. 521 S. W. 2d 263

Nedds v. Calderon 678 F 3d- Court of Appeals, 9th Circuit 2012

25

14

Oler v. State 998 S W 2d 363, 368 Tex. App. Dallas 1999

 

18

Exparte Pearce

Tx. Cr. App 230 S W 2d 830

3

PNS Stores, Inc. v. Rivera, 379 S. W 3d 267, 275 9 Tex. 2012

( quoting Browning v. Prostok, Inc., 165 S. E. 3D 336, 348 (Tex. 005)

14

Sabariego v. Maverick 124 U. S. 261 31 L.E.d 430. S. Ct.

461

20

The Supreme Court in Scheuer v. Rhodes, 416 U. S. 232, 94 S. Ct.

(1974)

1683, 1687

Singletary v. State, Tex. Cr. App., 509 S. W. 2d 572

19

24

Syanon Foundation v. Bernstein, 503 A 2d 1254 (D C 1986) Synanon cert.

Denied

U. S.

107 S. Ct.

69, 93 Led, 2d 26 (1986)

,

18

United States v. Chambers, 291 U. S. 217 54 S. Ct. 434, 78 L.Ed. 763, 89 A.L.R.

1510

Universal Oil Prods. Co. v. Root Ref. Co. 328 U S 575 , 580 (1946)

Vela v. Marrywood 17 S W 3d 750 reviewed with per curiam opinion 53 S.

W. 3d 684 rehearing denied Tx. App. Austin 2000

Exparte Williams 169 Tx. Crim. App. R 96,33 S W 2d 940

Govt Code Sec 51.303

Duties of the Clerk

Art. 38.14. Testimony ofAccomplice

Texas Penal Code 7.01

:

20

3

16

3

22

24,29.30

29,31

Texas Penal Code 7.03

(ii)

Texas Penal Code Sec. 37.01Perjury & Falsification

Texas Penal Code Sec. 37.04 Materiality.

Texas Penal Code 37.10 Tampering With Govt.Record

Texas Code of Criminal Procedure28.01

Texas Code of Criminal Procedure Chap. 11 Article 11.07 4(a)(l)(2)

Texas Code of Civil Procedure 247 Trial Date Docket Setting

Texas Constitution Article V

Section 5 of the Texas Constitution

29

20

32

20,21

15

7

5>»)»555>»JJJ>5J»555»5J?J

2

IN THE TEXAS COURT OF CRIMINAL APPEALS

NO.

EX PARTE

CHADRICK PATE

#1563340

FROM

36TH DISTRICT COURT

ARANSAS COUNTY, TEXAS

A-08-5080-4CR

Chadrick Pate

A-08-5080-4CR(HC1-HC6

Trial Judge Janna K Whatley

TEXAS COURT CRIMINAL APPEALS

WR-78,165-02 THRU WR-78,165-08

AND

13TH COURT OF APPEALS

CORPUS CHRISTI, TEXAS

13-09-00112CR

APPLICATION FOR ORIGINAL WRIT OF HABEAS CORPUS

FOR

EXTRINSIC FRAUD ON THE COURTS AND ACTUAL INNOCENCE OR

ALTERNATIVELY WRIT OF MANDAMUS

To The Honorable Justices of said Court,

Comes now, Chadrick Pate Applicant, (hereafter Pate) by and through undersigned

Petitioner pro se Nema Bardin, and presents this Application For Original Writ of

Habeas Corpus, and as grounds therefor would respectfully show this Honorable Court

the following:

1.

NATURE OF RELIEF SOUGHT

This is a Original Application for Writ of Habeas Corpus seeking both Acquittal and

relief from an Illegal Judgment and Conviction for Murder obtained in the 36th District

Aransas County, Texas Trial Court & obtained through multiple Constitutional Grounds

that include Extrinsic Fraud on the 36th District Aransas County, TexasTrial Court, on

Applicant and on the 13* Court ofAppeals Corpus Christi, Texas, and The Texas Court

of Criminal Appeals.

Pate will demonstrate the Extrinsic Fraud on the Courts and on Pate, his Actual

Innocence and the Multiple Constitutional Violations supported from the Trial Court's

own Pre Trial and Trail Records in Pate's Cause A-08-5080-4CR and his co defendant

Christopher Hall's Cause Nos. A-08-5080-2CR & S-08-5080-2.

Some of the Grounds relate to Jurisdictional Defects that render Orders, Judgments, and

the Conviction Void. For these reasons, the relief sought in this application should be

granted, and the indictment dismissed.

11.

JURISDICTION AND RESTRAINT

This Court has jurisdiction over the subject matter of this Writ by virtue of the

authority vested in the Court by Article V Section 5 of the Texas Constitution .

Pate is is illegally incarcerated and restrained in The Texas Department of Criminal

2

Justice Alfred Hughes Unit, Gatesville, Texas at 3109 F M 929 . by virtue of a

Unconstitutional Final Judgment and Conviction Ex #1 Clerk's Record Pages 89-93

Judgment, obtained by Extrinsic Fraud on the Courts and on Pate, that renders all

the Orders, Judgments and Conviction Void.

And because Pate has attempted to obtain Relief from the Judgment and Conviction

numerous times by filing Writs of Habeas Corpus Article 11.07 in the Trial Court

returnable to this Honorable Court. Ex # 4 WR-78,165-02 thru WR-78,165-08 .

Where applicant is entitled to a Writ on his Petition and is Denied such right, the Court

of Criminal Appeals may hear the Petition as an Original Proceeding: Exparte Pearce

Tx. Cr. App 230 S W 2d 830. Exparte Gomez Tx. Cr. App. 241 S W 2d 153. Exparte

Geter, Tx. Cr. App. 383 S W

S.W. 2D 940

.

2d 405, Exparte Williams 169 Tx. Crim. App. R 96,33

HI.

PROCEDURAL HISTORY AND STATEMENT OF THE CASE

Pate was indicted jointly with Christopher Hall, Jason Underwood, Kevin Tanton and

Antony Ray, by a Grand Jury on 6/24/08 in Aransas County, Texas for Count

One Murder Texas Penal Code (19.02) and Count Two Aggravated Assault Texas Penal

Code 22.02 and Organized Criminal Activity Texas Penal Code 71.02.

Underwood, Tanton and Ray eventually took plea deals to testify against Pate and Hall

and Pate and Hall were convicted for Murder in a joint jury trial and sentenced both to

99 years and a $10,000.00 fine. The joint jury trial was conducted over 4 days 2-9 -09

3

thru 2-13-09. After Judgment and Conviction, Pate Appealed his Judgment and

Conviction to the 13th Court ofAppeals. The Trial CourtAppointed Terry Collins for his

Appeal, 13- 09-00112CR, denied 8/25/10, Pate filed Petition for Discretionary Review

that was denied on 6/21/11,Pate then filed his Initial State Writ of Habeas Corpus by and

through Attorney Carrie Crisp WR-78,165-01, denied w/o Written Order 3/6/2012

and then filed Pro Se a Federal Habeas Corpus :4;13-cv-00709 denied 3/20/14. Pate's

Mother then pulled Hall's Record of Proceedings sometime in May or June 2014, from

the website Pacer. Record of Certified Proceedings A-08--5080-2CR &

S-08-5080-2

Christopher Hall. See, Exparte Lemke, 13 S.W.3d 791, 794 (Tex. Crim. App. 2000)

(concluding that court would address merits of subsequent habeas application when

applicant showed that present claim could not have been presented in his initial writ

application because the factual basis for it was "unavailable").

After reviewing Hall's Record of Proceedings numerous times, Pate

Discovered the factual evidence of Extrinsic Fraud and

Fraud on the Court. This

evidence was newly available and not discover-able by due diligence because the

factual evidence in Hall's separate pre trial hearings was intentionally concealed

from Pate and the Court's by the Fraud practiced on Pate and the Courts and because the

proceedings were not made a part of Pate's Trial Court Proceedings. Hall's Separately

held Pre trial proceedings revealed that Pate had received NO Notice of the

Hearings, Motions and Orders resulting from Hall's Separate Proceedings that directly

affected Pate's claims and defenses, and Pate had no Notice or Opportunity

to be Heard on the Motions and Orders that directly affected his claims and defenses.

Pate's Claim of Fraud on the Court and Void Judgment are not barred, they

have never been litigated and the claims are collateral (pre trial) to the Judgments and

Orders of The Trial Court 36th District Court Aransas County, Texas, The the 13th Court

ofAppeals Corpus Christi, Texas, The Texas Court of Criminal Appeals and even to

the Jury Trial in the 36th District Court Aransas County Texas, as the commission of

fraud was practiced and Concealed in the Pre Trial Proceedings of Pate and Hall.

The claims were presented before, in previous Writs of Habeas Corpus but not

adjudicated. All Writs were Dismissed, not Denied. Pate, has been attacking Pro Se

the Judgment and Conviction consistently since discovering the

fraud, first by

Motion to Vacate Judgment returnable to the Trial Court 36th District Aransas County

Texas filed 12/5/14 amended 1/5/14 and when the Trial Court failed to Answer, Pate

withdrew the Motion on 5/18/15 to pursue relief from the Texas Court of

Criminal Appeals directly and filed WR-78,165-02 Motion for leave to file Original

Writ of Habeas Corpus denied 6/24/15, and then filed Mandamus filed in 13th Courtof

Appeals disposed 8/26/2015 , then filed a Second WR-78,165-03 Motion for Leave to

file Denied 10/7/2015,then filed the following Writs to the 36th District Court Aransas

County Texas returnable to The Texas Court of Criminal Appeals; WR-78,-165-04

Dismissed Non Comp.

2/10/16,WR-78,165-05 Dismissed Art 11.07 Sec 4, 6/15/16 ,

WR-78,-165-06 Dismissed Non Comp. 9/28/16, WR-78,165-07, Dismissed Art 1107

5

(Sec.4,)l/25/17, WR-78,165-08 Dismissed Non Comp Art 1107( Sec 4,) 6/7/17.

Pate has continually challenged his Judgment and Conviction over the course of 9 lA

years, because he is innocent.

Without Hall's Record of Proceedings that were not made a part of Pate's Record, The

Court could not fairly and impartially adjudicate Pate's claims and defenses and Pate

could not

properly litigate his claims and defenses, and without Hall's Record, Pate

could not prove the Fraudulent Proceedings that also took place in his own pre trial

proceedings and the Court could not discover the commission of fraud practiced on it.

Pate relied on his Defense Attorney's Fiduciary Responsibility to give him Notice of all

Motions, Hearings and Orders that directly affected his claims and defenses, and on

other Officer's of the Court who had the responsibility and obligation to Not remain

silent. Pate relied on the Trial Judge to safeguard his Constitutional Rights, to Notice,

and Opportunity to be Heard where Hearings, Motions and Orders affected his

pre trial claims and defenses.

VI.

CLAIMS FOR RELIEF

A. GROUND ONE

Newly Discovered Factual & Legal Evidence of Extrinsic Fraud on the Court That

Terminated Jurisdiction to Proceed to Trial. Judgment and Conviction are "Void." By

preponderance of the evidence but for the violation of the U. S. Constitution, no

reasonable juror could have found Pate Guilty .

6.

POINTS AND ARGUMENT

Sec. 4 of Article 11.07, Tx. Code of Crim. Proc. Subsequent Writ Sec 4(a) (1)

current claims & issues have not been & could not have been presented previously in

original application or in a previously considered application filed under this article

because the factual or legal basis for claim was unavailable OR (2) by a preponderance

of the evidence but for a violation of the U S Constitution no rational juror could have

found the applicant Guilty beyond a reasonable doubt.

LEGAL BASIS In Exparte Chavez 371 S. W. 3d 200,205-07 (Tx. Crim. App. 2012) he

court held that it's decision in Exparte Chabot, 300 S. W. 3d @ 772 which held, for the

first time that the unknowing use of false testimony in obtaining a conviction violates

due process provides a New Legal basis . In Pate's case it is the Fraud On the Court and

on Pate.

FACTUAL EVIDENCE: a Newly available fact is an actual or alleged event or

circumstance. In Pate's Case the factual evidence was fraudulently concealed in the

separate pre trial proceedings of Pate's co defendant Hall.

Pate's claims for relief should not be barred, first because he is Actually Innocent of the

Offense for which he was Indicted and convicted, and because the factual and legal

evidence that support the claim of Extrinsic Fraud on the Court was not and could not

Appeal's Court's Joint Memorandum, Initial Application for 11.07 Writ of Habeas

Corpus Exhibit # 5.

Because Officer's of the Court concealed their wrong doing from the Court and

Pate by holding separate pre trial hearings of Pate and Co defendant Hall, and not

giving Pate Notice of the Hearings, Motions and Orders keeping him from

appearing in the proceedings and obtaining knowledge of Motions and Orders that

directly affected Pate's own pre trial Motions, and prevented him from litigating

his claims and defenses. The newly discovered legal and factual evidence discovered in

2014 after obtaining Hall's Trial Court Records, revealed that Officer's of the Court,

A.

Tampered with the Court's Records Texas Penal Code 37.10 Text attached Exhibit

#6.

Officer's of the Court had violated Court's Orders multiple times, and in particular

the Oral Order by Judge Joel Johnson in Hall's pre trial proceeding RR vol 4 of 11

(10/23/08) where Pate had no Notice that Judge Johnson had Ordered the Joint Trial of

Pate and Hall Severed when he Granted Hall's Motion for Continuance filed that same

day. Ex # 2 Hall's Clerk's Record page 44-46 and Denied the State's Oral Motion RR

vol 4 of 11 page_ lines

, to Carry Pate's Trial forward with Hall's Separate

Jury Trial Continued to 1/5/09. Although the Courts Record had been tampered with

prior to the 10/23/08 hearing, the tampering was consistent and persistent after that

hearing. Judge Johnson's Oral Orders from the Hearing were not entered on Pate's Pre

8

Trial or Trial Court Record, and there are No Written Orders appearing in Pate's Record

that journals the Oral Orders that Severed Hall's Trial from his own.

B.

Fraudulent entries were made onto Pate's Docket Sheet Ex# 1 Pate's Clerk's Record

page 95., that reveals on 10/30/08 , Officer's of the court made a false entry of a

Motion for Continuance by Pate, and false reset Jury trial date to the same date of Hall's

new Trial Date of 1/5/09. There is nothing in the Record that Journals or Supports a

Motion, Order, Hearing, or Agreement for Continuance to a trial date of 1/5/09. Review

Pate's Clerk's Record Exhibit # 1. Pate's Court Ordered Jury Trial Date of

11/03/08 is journaled in writing and Ordered by Judge Michael Wellborn in RR

vol 2 of 9 (9/25/08). The Record reveals that without cause, Pate's Jury Trial was

not conducted on the Court Ordered date of 11/03/09.

C.

On 11/25/08 in Hall's pre trial proceeding RR vol 5 of 11 attached, Stan Turpin, Hall's

Defense Attorney, Marcelino Rodriguez States Attorney, and Judge Michael Wellborn

had ex parte communication where they each misrepresented Pate's properly filed

Motion for Severance indicating that he did not have a Motion for Severance in his

file. (He did Ex. # 1 Pate's Clerk's Record page 36. Also see page 45 A fraudulent

Order Granting Pate's Motion for Severance. They each misrepresented that Pate's

Jury Trial Date had been set on the same Trial Docket date as Hall's for 1/5/09. The

Record is Void of Stan Turpin or Marcelino Rodriguez receiving a Motion, Order

9

Hearing or Agreement of all Parties to a Continuance that would reset Pate's Jury Trial

for 1/5/09 from Judge Wellborn's Court Order that Set Pate's Trial for 11/3/08 See

Pate's RR vol 2 of 9 (9/25/08).

D.

On 12/22/08 Officer's of the Court once again made a fraudulent entry onto Pate's

Docket Sheet Ex # 1 Pate's Clerk's Record page 95 Pate's Docket Sheet. Shows Reset

Trial Date to 2/9/09, Announcement for 2/5/09. The Record is Void of any Notice,

Motion, Order, Hearing or Agreement to Continue or Reset Pate's Trial Date.

E.

On 12/19/09, Hall filed a Motion for Continuance Ex # 2 Hall's Clerk's Record page

82-84. The Motion gives Notice to the State, but no Notice to Pate.

F.

On 12/22/09, Judge Michael Wellborn Grants Hall's Motion for Continuance without

Notice to all Parties, a Hearing, or an Agreement of all Parties and Resets Hall's Trial to

2/9/09 and Announcement 2/5/09. Ex # 2 Hall's Clerk's Record page 85.

G.

On 2/5/09 Officer's of the court once again made a false entry onto Pate's Docket

Sheet showing Ready. Ex #1 Pate's Clerk's Record page 95. The Record is Void of

any Hearing or Evidence of Pate announcing Ready for Trial on 2/5/09 or of any

Notice to Pate on a Hearing or Announcement Date.

10

H.

On 2/5/09 in a Pre Trial Hearing for Hall RR vol 5A of 11, both the State and Hall

announced Ready for Trial. The State did not Announce Ready on Pate. Judge Janna

Whatley did not call Pate's name or Case Number and provided no Notice to Pate of any

Motions, Orders or of the Hearing. Judge Whatley did ask Pate's Attorney who was in

appearance who would be doing Punishment, and he responded that he thought the Jury.

This proceeding contains an out of sequence Reporter's Record of 5A of 11, attached

and contains a different cause number of S-08-5080-2, This Record is not listed in

Hall's RR Vol 1 Of 11 page 2 Index Sheet.

I.

Pate's Record is Void of any Motion ,Order, Hearing or Evidence that Pate's was a

Threat to anyone at his trial that would support the Court forcing him to go to Trial in

Leg Restraints. RR V6L

J.

of

. pages;

.

The Trial Court Record supports that Officer's of the Trial Court Certified a Fraudulent

and incompleteRecord of Proceedings to The 13* Court ofAppeals Corpus Christi

Texas, and to The Texas Court of Criminal Appeals. See Ex # 1 Pate's Clerk's Record

that Contains the Fraudulent Docket Sheet, Fraudulent Order Granting Pate's Motion for

Severance with no Nunc Pro Tunc Order, The Record does not contain Hall's pre trial

Record of Proceedings which without neither the Court ofAppeals or the Texas Court

11

of Criminal Appeals could fairly and impartially make judicial determinations that

would affirm Pate's Judgment and Conviction.

Argument and Authorities

Judge Johnson's Pre Trial Oral Orders: The Record does not reveal a Motion or a

Order for a joint trial however Pate was jointly indicted with all other defendant's.

Because Pate and Hall had been joined for trial prior to the 10/23/08 Hearing RR

vol 4 of 11, when Judge Johnson's Oral Order was pronounced, it terminated the

joint trials. A Trial court's Pronouncement of Order is Oral, while judgment, is

merely written declaration & embodiment of oral pronouncement. Art. 42.01 See

Banks v. State 708 S. W. 2d 460, 461-462 (Tex. Crim. App. 1986). The record

reveals that there was no Written Order that memorialized Judge Johnson's Order

to Continue Hall's Trial, and no Written Order that Denied the State's Motion to

Carry Pate's Trial forward with Hall's new Trial Date.

However see Coffey v. State

979 S. W. 2nd 326,328 (Tex. Crim. App. 1998) showing that the Oral Order Controls.

The rule demonstrates that impostion of order is crucial moment when all parties are

physically present at the hearing and able to hear and respond to the Order. However as

previously stated, Pate was not in appearance at the Hearing, because it was separately

held for the co defendant, and the Hearing, Motions and Orders were concealed from

Pate by the officer's of the Court. Had Pate been given Notice of the Hearing then he

could have Appealed the Process where the Court illegally rejoined his trial with the co

12

defendant in a pre trial appeal, and ask for Dismissal for violation of his U S

Constitutional Right to a Speedy Trial.

Instead Pate has had to go through the more

cumbersome procedure of filing numerous subsequent Writs of Habeas Corpus , that are

slower, less effective and subject to denial unless He has asserted and proven

jurisdictional violations. See Exparte Leon Vance Madding 70 S. W. 3d 131 Texas

Court Criminal Appeals 2002 that supports this theory.

Pate discovered the violations contained herein in or around 2014 and has been filing

with the Trial Court Writs requesting relief from the illegal Judgment and Conviction

since then. Pate was arrested on May 5th 2008. Todays date is Sept. 2017. Pate has

lingered in the Texas Jail or Prison System begging for relief for more than 9 years.

All courts have the inherent equitable power to vacate a judgment that has been

obtained through the commission of fraud upon the court.

Universal Oil Prods. Co. v. Root Ref. Co. 328 U S 575,580 (1946).

The Court is authorized and required to vacate judgments made in connection with

proceedings conducted in the absence of Jurisdiction or tainted by fraud:

It is not necessary to take any steps to have a void judgment reversed, vacated or set

aside. It may be impeached in any action direct or, collateral. Holder v. Scott 396 S. W.

2d 906, (Tex. Civ. Texarkana) 1965 writ ref. n.r.e.

A court reviewing a habeas petition should adhere to "a tradition in which courts

of equity have sought to 'relieve hardships which, from time to time, arise from

13

a hard and fast adherence 'to more absolute legal rules, which, if strictly applied

threaten the 'evils of archaic rigidity.' Id

Appeals, 9th Circuit 2012.

Nedds v. Calderon 678 F 3d- Court of

VOID JUDGMENT: "Where a void judgment has been rendered and the record in the

cause, or judgment roll

reflects the vice, then the court has not only the power but the

duty and even after the

expiration of the term to set aside such judgment" Harrison v.

Whiteiey, Tex. Com. App 6 S W 2 d 89.

CORRECTING THE FRAUD OUTWEIGHS NEED FOR FINALITY: Appellate

courts have found that fraud is extrinsic in rare cases when "fraud distorts the

judicial process to such an extent that confidence in the ability to discover the fraudulent

conduct through the regular adversarial process is undermined" and the need to correct

such a distortion out weighs the need for finality ofjudgment. PNS Stores, Inc. v.

Rivera, 379 S. W. 3d 267,275 9 Tex. 2012 ( quoting Browning v. Prostok, Inc., 165

S. E.

3D 336,348 (Tex. 2005)

Extrinsic Fraud: justifies an exception to the tenet of finality because it prevents a real

trial upon the issue involved Montgomery v. Kennedy 669, S W

Prostock 165 S W

d at 348 Texas 2005.

2d at 313 Browning

JOINT JURY TRIAL: The Joint Jury Trial was not tried in Accordance with Judge Joel

Johnson's Pre Trial documented and joumaled

Court Order for Separate Jury Trials of

Hall and Pate in Hall's RR 4 of 11 and not included in Pate's Record . The Joint Jury

14

Trial conducted by Judge Janna Whatley leading up to the Judgment and Conviction

was in violation of Judge Joel Johnson's Court Order that Severed the Joint Trials, and

thus further consideration was barred by "Law of the Case" Doctrine, The Court's

Jurisdiction was divested and The Trial Court could not proceed to a Joint Trial or a

Separate Trial, See Browning v. Navarro 743 F2d 1069 5th Cir. 1984., explaining

same.

SEPERATE PRE TRIAL PROCEEDINGS & Party to the Proceedings: Hall's Pre

Trial Proceedings were held in Separate Proceedings and Pate was not Noticed on any of

the Hearings, Motions or Orders of Christopher Hall Cause No. A-08-5080-2CR & S-

-08-5080-2, and not Noticed on his own pre trial hearings, Motions, and Orders in A-08-

5080-4CR, thereby Pate never had knowledge of the hearings, motions and orders, being

kept in ignorance by the acts of his attorney, the prosecution, the district

clerk, Hall's attorney and the Judges of the Court. A party is any person joined for a

trial, and a "party" to a lawsuit has the right to receive written notice that he is being

sued OR that a "hearing" will be held that might affect him in some way. Definition by

Lectric Library "Parties" and "Service of Documents" Not only did Pate have the

right as a party to have notice of all the pre trial hearings, he was required by Texas

Code of Criminal Procedure 28.01 to appear at all pre trial hearings including

Severance Hearings and Continuance Hearings.

Officer's of the Court misrepresenting material facts:

RR vol. 5 of 11

amoung other things, reveals officer's of the Court actively and intentionally

15

misrepresenting Pate's Motion for Severance and his Court Ordered Jury Trial Date.

Vela v. Marrywood 17 S W 3d 750 reviewed with per curiam opinion 53 S. W. 3d 684

rehearing denied Tx. App. Austin 2000 showing: Fraud may consist of both active

misrepresentation and passive silence.

Finality of the Judgment: Calderon v. Thompson, 523 U. S. Supreme Court 1998.

The Court made clear that had his Habeas Corpus Case been a case of "fraud upon the

court" that called into question the very legitimacy of the Judgment referencing Hazel-

Atlas that the state would have no interest in the finality of the Judgment.

VOID JUDGMENT: The trial court lost jurisdiction when violating Pate's U. S.

Constitutional Due Process Rights to Notice, Opportunity to be Heard, and a Fair

and Impartial trial.

A judgment is Void only when it is shown the trial court had no

jurisdiction of the parties or property, no jurisdiction of the subject matter, no

jurisdiction to enter the particular judgment, or no capacity to act as a court.

Browning Placke, 698 S W 2d 362(Tex, 1985) citing Cooper v. Tex. Gulf Indus, nc.

513 S. W.

2d

200,204 Tex. 174) .

Fraudulent Concealment: The use of deception by an accused is evidence of intent to

defraud and harm which may take the form of false information or of engaging in

behavior designed to avoid detection Garcia v. State, 630 S W 2d 303,305 (Tex.

App.Houston 1st Dist. (1981, no pet). Officer's avoided detection of their misconduct

16

by holding separate pre trial proceedings and then not giving Notice to Pate or the Court

of the Hearings, Motions and Orders that directly affected Pate's right to litigate his

claims and defenses in a fair hearing, and deceived the Court so that it could not fairly

and impartially adjudicate the issues at the Pre Trial or the Trial.

Texas has held in Texas Criminal Cases that Intent to Defraud as intent to cause another

to rely upon the falsity of a representation, such that the other person is induced to act

or refrain from acting Douglas v. State 3rd dist. Austin, Texas 2017. Both Pate and

the Court acted and refrained from acting based upon the misconduct of the

officer's of the Court.

FADLURE TO PROVIDE NOTICE OR PERSONAL SERVICE:

As stated

previously Pate was not given Notice of either his own or his Co defendant's Pre trial

Motions, Orders or Hearings. The failure to serve an opponent with personal service in

order to obtain judgment without notice is extrinsic fraud

Layton, 141 S W

3d at

763: In

Re Marriage of Ham. 59 S. W. 3d 326,332 (Tex. App. Texarcana 2001, no

pet) citing Forney v, Jorrie 511 S.W. 379,384 Tex Civ. Appeal San Antonio 1974

writ refd n. re).

Extrinsic Fraud: Pate's trial was not conducted pursuant to his U S Constitutional

Due Process rights and in essence there was no real adversarial trial upon his

issues. Extrinsic Fraud justifies an exception to the tenet of finality because it prevents a

real trial upon the issue involved Montgomery v. Kennedy 669, S W

2d at 313

Browning Prostock 165 S W d at 348 Texas 2005.

17

FRAUD ON THE COURT:

It is a wrong against the institutions set up to protect and

safeguard the public, institutions in which fraud cannot complacently be tolerated

consistently with the good order of society, Synanon Foundation, Inc. v.

Bernstein, 517 A. 2d 28 -DC Court of Appeals 1986. Bad faith litigation tactics

subverting the integrity of the judicial process. In Syanon Foundation v.

Bernstein, 503 A 2d 1254 (D C 1986) Synanon cert. Denied

U. S.

107 S. Ct.

69, 93 Led, 2d 26 (1986) , we upheld the pretrial dismissal of Synanon's complaint

due to its perpetration of a massive fraud upon the court. There, we described

Synanon's temporarily successful attempt to deceive the trial court and influence

it's decisions as "conduct which the administration ofjustice could not tolerate.

Oler v. State 998 S W 2d 363,368 Tex. App. Dallas 1999 describing 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 valuable thing

belonging to him or a false representation of a matter of fact by words or conduct.

Kenvit Med. Prods. Inc. v. N & H Instruments Inc. 616 F. 2d 833 ,837 (11th Cir.

1980) Quoting 7 Moore's Federal Practice and Procedure 60.33 The Court observed

that when the party is a government, acting through its duly authorized counsel, "the

distinction between client and attorney actions becomes meaningless" Id. In such cases,

no scheme based on a subjective intent to commit fraud is required, Rather, "reckless

disregard for the truth is sufficient" to constitute fraud on the court Id At 353.

18

JURISDICTION AND FAILURE TO FOLLLOW STATUTORY PROCEDURES:

Judge Michael Wellborn and Judge Janna Whatley failed to follow statutory procedures

as evidenced when each of them held proceedings where Pate was not present and was

not given notice of the hearings, motions, and orders, and where they violated Court

Orders.

When a Judge does not follow statutory procedures and where a Judge does not act

impartially subject matter jurisdiction fails. See Armstrong v. Obucino 300 111 140,

143 (1921), Bracey v. Warden U. S. Supreme Court No. 96-6133 (June 9,1997)

When a Judge enforces a Void Order (an order issued without jurisdiction) they become

trespassers of the law, and are engaged in treason See (1 Freeman on Judgments, 120

-c).( Every Order Issued after 11/3/08 was a Void Order, including the Judgment

and Conviction.)

The Supreme Court in Scheuer v. Rhodes, 416 U. S. 232,94 S. Ct. 1683,1687

(1974) states, "When a state officer acts under a state law in a manner violative of the

Federal Constitution, he comes into conflict with the superior authority of that

Constitution and he is in that case stripped of his official or representative character and

is subjected in his person to the consequences of his individual conduct. The state has

no power to impart to him any immunity from responsibility to the supreme authority

of the United States. State officers include Court's Clerks, Attorneys, Judges,

Prosecutors and others.

19

United States v. Chambers, 291 U. S. 217 54 S. Ct. 434, 78 L.Ed. 763, 89 A.L.R.

1510. Jurisdiction is fundamental, and as heretofore pointed out, must be continuing in

the court throughout the proceedings, because it is jurisdiction alone that gives the court

power to hear determine and pronounce judgment upon the issues before it.

A judgment of a court without hearing the party or giving him an opportunity to be heard

is not a determination of his rights, and is not entitled to respect in any tribunal. See

Sabariego v. Maverick 124 U. S. 261 31 L.E.d 430. S. Ct. 461.

TAMPERING WITH THE COURTS RECORD: As previously stated, Officer's of

the Court tampered with the Court Records, when they made fraudulent entries onto the

record and failed to make proper entries for other proceedings. They tampered with the

Record when certifying a Fraudulent Record of proceedings to the 13th Court ofAppeals

and to the Texas Court of Criminal Appeals. See Ex # 5 Texas Penal Code Title 8.

Offenses Against Public Administration Chap. 37. Perjury and other Falsification

Sec. 37.01. Definitions. In this Chapter: (1) "Court record" means a decree,

judgment, order, subpoena, warrant, minutes, or other documents issued by a

court of: (A) this state; (2) "Governmental record" means: (A) anything belonging

to, received by, or kept by government for information, including a court record;

Sec. 37.04. Materiality, (a) A statement is material, regardless of the admissibility of the

statement under the rules of evidence , if it could have affected the course or outcome of

the official proceeding. The Statement's made by Officer's of the Court in the 11/25/08

20

RR 5 of 11 proceedings directly affected Pate's claims and defenses, and changed the

entire course of the pre trial and trial. See Ex. # 5 Text of Sec. 37.10 . Tampering with

Governmental Record:

a) a person commits an offense if he (1) knowingly makes a false entry in, Or

false alteration of, a governmental record;

(2) makes, presents, or uses any record, document, or thing with knowledge of its falsity and with intent that it be taken as a genuine governmental record;

(3) Intentionally destroys, conceals, removes, or otherwise impairs the verity,

legibility, or availability of a governmental record;

The District Clerk and Trial Judges intentionally and knowingly made false entry onto

Pate's Record of Proceedings, and included falsified Court Documents and failed to

record and include the proceedings from Hall's Record of Proceedings that directly

affected Pate's pre trial and joint jury trial claims & defenses & presented the Record of

Proceedings as a Certified Record of Proceedings to The 13th Court ofAppeals

Corpus Christ, Texas and The Texas Court of Criminal Appeals,

intending that those courts would rely on the Fraudulent and Incomplete Record of

Proceedings to make fair and impartial adjudications of Pate's claims and defenses. The

Record of Proceedings contained Fraudulent Entry of Motions and Orders, Fraudulent

Docket Sheet, and Fraudulent Clerk's Record. The documents are government records

and were tampered with, to create a false impression of the actual

Proceedings in the

pre trial and trial. The Record of Proceedings certified to the 13th Courtof Appeals, and

the Texas Court of Criminal Appeals, produced a false

21

narrative of the actual

Proceedings and Record of the Court, making it impossible for the Court to adjudicate

Pate's Appeal, and Habeas Proceedings in a fair and impartial way. The fraudulent

record also stopped Pate from litigating all of his claims and defense, and from

receiving a fair hearing with the opportunity to be heard.

The Aransas County District Clerk Pam Heard and Staff under the supervision of the

Trial Court Judges, tampered with the Courts Records, and failed in her duties as

described in Govt Code Sec 51.303 Duties of the Clerk has custody of and shall

carefully maintain and arrange the records relating to or lawfully deposited in the

clerks office the clerk shall record the Acts and Proceedings of the court and enter all

judgments of the court under the direction of the Judge.

A District Clerk and Trial Judges have Constructive Knowledge of all Of the Pre Trial

and Trial Proceedings , and would know when false entry's have been made to the

proceedings. The District Clerk knowingly made false entry's onto Pate Pre Trial Court

Proceedings, and presented The Court Records as Certified Record of Proceedings to

The Trial Court, 13th court of appeals and The Texas Court of CriminalAppeals with

full knowledge that the proceedings were false and intended that Pate and All Court's

coming into contact with the proceedings would view the Record of Proceedings as a

governmental record that could be relied upon.

B. GROUND TWO

NO EVTOENCE SUPPORTS THE JURY'S GUILTY VERDICT. PATE IS FACTUALLY AND LEGALLY ACTUALLY INNOCENT OF THE OFFENSE OF

22

MURDER WERE IT NOT FOR CONSTITUTIONAL VIOLATIONS OF DUE

PROCESS NO REASONABLE

JUROR COULD HAVE FOUND PATE GUILTY OF THE OFFENSE

POINTS AND ARGUMENT

A.

There is No Evidence in the Record of Evidence that Supports the Jury's Guilty Verdict

for Pate committing Murder by Intentionally or Knowingly causing the Death of Aaron

Watson by shooting him with a firearm, or any Evidence that he would be Criminally

Responsible for the Conduct ofAnother as a Party to the Offense by with intent he

promoted the commission of the Murder by Soliciting, Directing, Encouraging, Aiding

or Attempting to Aid in the Commission of the Offense before during or after the

Offense was committed by another.

The newly discovered factual evidence of "fraud on the court' violates Pate's U. S.

Constitutional Due Process Rights, and opens the door to Pate's claim of actual

innocence. When presenting Schlup type actual innocence, one must make a

Constitutional violation claim and a prima facie actual innocence Ex parte Brooks 219

S W.3d 396,324-327. In Exparte Knipp 236 S W 3d 214 (2007) the Court of Criminal

Appeals found that applicant made prima facie showing of actual innocence under

4(a)(2) deciding applicant could not be guilty.

This Court has also recognized that, even if an application does not meet the

requirements of 4(a)(1), a subsequent application for writ of habeas corpus may

23

overcome the procedural bar of art. 11.07, 4, if an applicant can show a constitutional

violation that fulfills the requirements of 4(a)(2), Exparte Milner 39.4 S W 3d 502

(2013).

The elements that must be proved beyond a reasonable doubt are:

first, that a murder was committed by another person by intentionally or knowingly

causing the death of Aaron Watson by shooting him with a firearm, (that much was

proved) however none of the following elements were proved. Conduct

by Pate that would connect him to the Murder that would make him criminally

responsible for another by an Overt act of acting with intent to solicit, direct, assist,

encourage, aid, or attempt to aid another in the commission of Murder, (none of the

elements were proven, as there was NO Evidence with which to prove them)

In Singletary v. State, Tex. Cr. App., 509 S. W. 2d 572: The court describes an

accomplice witness (which is the same as a party to the offense) by stating "An

accomplice has been described as a person, who, either as a principal,

accomplice, or accessory, was connected with the crime by unlawful act or omission

on his part, transpiring either before, at the time of, or after the commission of the

offense, and whether or not he was present and participated in the crime"

There was NO evidence to corroborate testimony of the 3 accomplice witness that

testified against Pate that he was criminally responsible for someone else who murdered

Aaron Watson, as required by Article 38.14, V.A.C.C.P. The application ofArt. 38.14

requires that the testimony of the accomplice witness's be eliminated from

24

consideration while the testimony of the other witnesses is examined for evidence of an

incriminating nature tending to connect the accused with the commission of the offense,

Moore v. State Tex Cr. App. 521 S. W. 2d 263.

The mere

fact that a party has complicity with one of the accused in the commission of

other offenses does not make him an accomplice for the offense for which he is accused

and on trial, if there is no showing of his complicity in that offense. Easter v. State,

Tex. Cr. App. 536 S. WI 2d 223. The record does not reflect any affirmative act by Pate

to assist some one else in Aaron Watson's, murder. See Chappell v. State, Tex. Cr.App.

519 S. W. 2d 453. The State made no showing that Pate participated in planning or

promoting the offense once accomplice witness testimony is removed.

The jury was charged with finding Pate Guilty if they believed beyond a reasonable

doubt that he intentionally or knowingly caused the death of Aaron Watson by shooting

him with a firearm, and that another party participated with him in the act.

The jury found Pate Guilty of Murder as charged in the Indictment. Ex # 1 Pate's

Clerk's Record page 4 Indictment and page 72 Jury Verdict. The indictment under

Count One charged Pate with acting alone and together with Michael Jason Underwood

Christopher Joseph Hall, Anthony Lee Ray, and Kevin 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. The Record on the Trial reveals that

there was no evidence that Pate intentionally or knowingly caused Aaron Watson's

death by shooting him with a firearm. The evidence reveals just the opposite. The

25

evidence reveals that it was Pate's co defendant Hall who intentionally or knowingly

caused Aaron Watson's Death by shooting him with a firearm. The trial court issued a

jury charge for both Pate and Hall, that read exactly the same. See Ex #1 Pate's Clerk's

Record page 60-end Jury Charge, and Ex #2 Hall's Clerk's Record page 98-end

Jury Charge.

The Jury also found Hall Guilty of Murder as charged in the indictment. Hall's

Indictment read exactly as Pate's indictment See Ex # 2 Hall's Clerk's Record page

110 Verdict Form & page 4-5 Indictment. There was ample evidence found in the

Record on the Trial that supports Hall's Guilty Verdict, that his conduct caused the

Murder of Aaron Watson by intentionally or knowingly shooting him with a firearm,

and that Michael Jason Underwood, Antony Lee Ray and Kevin Ray Tanton

participated as parties to the act.

The jury charge for both Pate and Hall reads ; 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 (SUBSTITUTE CHRISTOPHER JOSEPH HALL

FOR HALL'S JURY CHARGE) acting alone or together with Michael Jason

Underwood, Christopher Joseph Hall (SUBSTITUTE CHADRICK B. PATE FOR

HALL'S JURY CHARGE) Anthony Lee Ray, and Kevin 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. The indictment permits the Jury to find Pate and Hall Guilty if the evidence

26

raises both the theory that the Defendant (Pate) did the act charged and the theory that

another person participated with Pate in doing the act.

Pate's Trial Court Record is void of any evidence that he did the act charged and another

person participated with him in doing the act. The ACT described in both the

indictment and the Jury charge is that Pate 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. There was no evidence that Pate was the primary actor, or that he

was present at the commission of the offense; See Jay con v. State, 651 SW 2d 803 -

Tex: Court of Criminal Appeals 1983 showing same.

See generally Foreman and Jones, Submitting Law of Parties in a Texas Criminal

Prosecution, 33 Baylor Law Review 267 "It is not unusual for a charge to apply the

law of parties to the facts by an instruction allowing the jury to convict on finding that

defendant, either alone or acting as a party with another person, did the act charged

[citing Morrison and Blackwell, New Penal Code Forms, C-7. 01 at 100-01]. An

instruction of that kind is permissible if the evidence raises both the theory that the

defendant did the act charged and the theory that another person participated with

defendant in doing that act."

Pate's separate jury charge did not charge that Christopher Joseph Hall or some other

person

caused the death ofAaron Watson by intentionally or knowingly shooting the

said Aaron Watson with a firearm, and that another Party participated in doing the act.

The Guilty Jury Verdict is Unauthorized and Unconstitutional, and Pate has suffered a

27

complete miscarriage of Justice. The Prosecution did not object to the jury charge.

Nowhere in the Jury Charge is the Jury required to find that Christopher Hall, Michael

Jason Underwood, Kevin Tanton, or Anthony Ray committed any criminal acts, for

which Pate could be held responsible.

The Record on the Jury Trial is completely Void of any evidence that Pate

participated with Christopher Joseph Hall, Michael Jason Underwood, Kevin Ray

Tanton or Anthony Ray in the commission of the offense of Murder as a Party and

criminally responsible for others conduct by with intent to

solicit, encourage, direct, aid

or attempt to aid in the commission of murder. The Trial Court Record is Void of

evidence direct or circumstantial that Pate was criminally responsible for the conduct

of someone else that intentionally or knowingly caused Aaron Watson's death by

shooting him with a firearm.

The State did not prove intent to promote or soliciting, directing, aiding or attempting to

aid another in the commission of the offense of murder.

The elements of an overt act must be proven beyond a reasonable doubt. The

State must prove that at the time of the commission of the offense of Murder, that Pate

was present and intended to somehow assist the others, including the primary actor in

the commission of the offense of Murder. The Record on the Trial provides evidence

that Pate was Not present at the commission of the murder. There was no testimony or

evidence introduced that Pate was present at the commission of the murder, even the

accomplice witness's stated that he had limped off into the woods before they all

28

entered the victim's home and assaulted and murdered him. Texas Penal Code

provides that mere presence at the scene of the commission of the offense does not make

one a party to the offense. The Prosecution then must prove that Pate intended to

promote the murder by some overt act that encouraged or facilitated the commission of

the murder before it's commission. The only evidence offered that Pate intended to

promote the murder by some overt act to encourage or facilitate the commission of the

murder was the testimony of the (3) accomplice witness's who made a deal with the

Prosecution to testify against Pate and Hall.

Art. 38.14. TESTIMONY OF

ACCOMPLICE. A conviction cannot be had upon the testimony of an accomplice

unless corroborated by other evidence tending to connect the defendant with the

offense committed; and the corroboration is not sufficient if it merely shows the

commission of the offense. The offense in this case is

not just Texas Penal Code 19.02,

intentionally or knowingly causing the death ofAaron Watson by shooting him with a

firearm, it would be all the elements of Murder and all the elements of the Conduct of

Pate that would make him Criminally Responsible for the conduct of another person,

Texas Penal Code 7.01 & 7.02. Texas Penal Code 7.03 states: In a prosecution in

which an actor's criminal responsibility is based on the conduct of another, the actor

may be convicted on proof of commission of the offense and that he was a party to its

commission.

The elements that must be proved beyond a reasonable doubt are : first, that a murder

29

was committed by another person by intentionally or knowingly causing the death of

Aaron Watson by shooting him with a firearm, and then Conduct by Pate that would

connect him to the Murder that would make him criminally responsible for another by

an Overt act of acting with intent to promote murder by soliciting,directing, assisting,

encouraging, aiding, or attempt to

aid another in the commission of Murder.

Because the only evidence on the Trial was testimony from

the 3 accomplices that Pate

was a party to the offense of Murder and criminally responsible for the conduct of

Another, by with intent to promote to solicit, encourage, assist, direct, aid or attempt

to aid another in the commission of Murder, that testimony must be eliminated. Article

38.14, V.A.C.C.P. " A conviction cannot be had upon the testimony of an accomplice

unless corroborated by other evidence tending to connect the defendant with the

offense committed; (murder and an overt act to assist or etc

)

and the corroboration is

not sufficient if it merely shows the commission of the offense".

The accomplice's testimony shows only the commission of Murder committed by

someone other than Pate, and that accomplice testimony is supported by other

testimony. The accomplice witness testimony that Pate was criminally responsible for

the conduct of someone else for the commission of Murder by with intent to promote

the murder he solicited, encouraged, directed, assisted, aided or attempted to aid in the

commission of Murder was not corroborated by any evidence.

The test is two part, to eliminate the

testimony of the 3 accomplices, that testified that

Pate was criminally responsible for the conduct of someone who intentionally or

30

knowingly caused Aaron Watson's death by shooting him with a firearm, and that Pate

committed some overt act described in Texas Penal Codes 7.02(2).

Then the second part would be to remove the conduct of those that Pate would be

criminally responsible, and find out if Pate's alleged conduct alone would support a

conviction. There is no evidence on the Trial Record supporting the submission of the

case to a Grand Jury on the theory that Pate was the Primary Actor or Acted As a Party

and criminally responsible for the conduct of another.

There is No evidence on the Trial Record to support a Jury Verdict that Pate

intentionally or knowingly caused Aaron Watson's death by shooting him with a

firearm, or was criminally responsible for the acts of a person that caused Aaron

Watson's death by with intent to promote the murder he assist in the commission of

murder he solicited, assisted, encouraged, directed, aided or attempted to aid the other

person. Texas Penal Code 7.01(a) and 7.02 (a) (2).

Judgment are Void.

RESPECTFULLY SUBMITTED,

Nema BardnyPetitioner pro se

for Applicant Chadrick Pate

1801 WestlakeDr.#112

Austin, Texas 78746

512-487-0197

bardinnema(S>yahoo.com

31

The Conviction, Sentence and

/•

V.

PRAYER

Wherefore premises considered, Pate prays for all relief from the illegal Judgment and

Conviction to include Acquital, and Immediate Release from Illegal Incarceration, and

any other relief available to him.

32.

IV.

CERTIFICATE OF SERVICE

I, Nema Bardin hereby certify and swear under penalty of perjury that the foregoing

Application for Original Writ of Habeas Corpus was mailed to The Aransas County

District Attorney Clerk at 301 North Live Oak Street Rockport Texas 78382 on

this 3V day of September 2017.

^u

Nema Barain Petitioner Pro Se

33

VII.

CERTIFICATE OF COMPLIANCE

I, Nema Bardin Petitioner pro se of the foregoing Application for Original Writ of

Habeas Corpus , do certify that according to this computer generated document in Open

Office, the word count excluding: appendices, exhibits, cover pages table of contents,

table of authorities and certificate of compliance is 7,522.

UMJnfMX

iMA BARDfN petitioner pro se

1801 WestlakeDr.#112

Austin, Texas 78746

512-487-0197

bardinnema(g>yahoo.com

34

VIII.

VERIFICATION

My name is Nema Bardin and I am the petitioner in the above and foregoing Original

Writ of Habeas Corpus, and I hereby swear that the allegations are true according to my

beliefs. SIGNED AND SWORN ON THE 3(b DAY OF SEPT 2017, FOR

CERTIFICATE OF SERVICE, CERTIFICATE OF COMPLIANCE AND

VERIFICATION,

IN THE STATE OF TEXAS

COUNTY OF TRAVIS

NeiWBardm^etitioner

1801 WestIakeDr.#112

Austin, Texas 78746

512-487-0197

bardinnema@yahoo.com

Nema Bardin, personally appeared and sworn to the facts in the above described

documents on the <^? day of September,2017.

35.

mh,

JACKSON DEE LONG

=-^/JV_^Notary Public, State ofTexas

'$X-J%tM Comm. Expires 07-12-2021

^iStiy^

Notary ID 129485369