IN THE TEXAS COURT OF CRIMINAL APPEALS

_______________________________________________________________________
In re CHADRICK PATE #1563340
v.
TEXAS COURT OF CRIMINAL APPEALS
_______________________________________________________________________
FROM THE ORDERS AND JUDGMENTS OF THE TEXAS COURT OF
CRIMINAL APPEALS CAUSE NOS. WR-78,165-01 through WR-78,165-09
_______________________________________________________________________

MOTION TO VACATE ALL JUDGMENTS AND ORDERS IN THE CAUSE OF

CHADRICK PATE CAUSE NOS WR-78,165-01 -WR-78,165-09 FOR FRAUD ON
THE COURT AND LACK OF JURISDICTION

To The Honorable Court;

Comes Now, Chadrick Pate pro se (here after) Pate seeking relief from this Court's

Order's Denying or Dismissing Pate's previously filed Application for Writs of Habeas

Corpus and any other Equitable relief available and in support thereof presents the

following;

Statement of The Case

Chadrick Pate, (here after Pate) was indicted jointly by the Aransas County Grand

Jury with Christopher Hall, Michael Underwood, Kevin Tanton, and Anthony Ray

under Count One for Murder Texas Penal Code 19.02 and Count Two Aggravated

Assault and Organized Criminal Activity Texas Penal Codes 22.02 and 71.02. Pate

and Christopher Hall pleaded Not Guilty and demanded a Jury Trial, and the others

Plead Guilty to Aggravated Assault and took Plea Deals to testify against Pate and Hall.
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Pate and Hall had separate pre trial hearings, but were tried jointly and both were

found Guilty by a Jury of Count One (1) Murder as alleged in the Indictment, and both

received a Punishment by the Jury of 99 years and a $10,000.00 fine. Judgment

was rendered by trial Judge Janna K. Whatley in the 36th Judicial Court Aransas ,

County Texas. After she rendered judgment and not in open court, she added to the

Judgment of Conviction a deadly weapon finding. After Judgment and Conviction, Pate

filed his Appeal of his Judgment of Conviction in the 13th Court of Appeals, Corpus

Christi Texas, and that Court Affirmed his Judgment of Conviction 8/25/10 &10/7/10 in

Cause No. 13-09-0012CR Pate then filed PDR No. PD-1504-10 with this Honorable

Court refused 6/21/11. Pate filed his initial 11.07 Writ Application Writ in the trial

court made returnable to this Honorable Court denied on 3/12/13 without written order

and no evidentiary hearing Writ No. WR-78, 165-01.Pate then filed numerous Writs

after he discovered officer's of the Trial Court perpetrated an extrinsic Fraud on the

Courts that have all been dismissed or denied, the latest 11.07 dismissal was Writ No.

WR--78, 165-08 dismissed on 6/7/2017 and Motion to file Original Writ was denied

11/22/2017.

DESCRIPTION OF THE RESPONDENTS ACTIONS FROM WHICH PATE

SEEKS RELIEF

1.
This Honorable Court adjudicated the merits of Pate's Applications for Writ of Habeas

Corpus on a “Void” Judgment of Conviction obtained in the 36th District Judicial Court

Aransas County Texas, such Court having NO JURISDICTION over Pate, for lack of
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Mandatory Service of Motion, Order & Hearing for Continuing Court Ordered Jury

Trial Date forward from 11/3/08.

2.
This Honorable Court adjudicated the merits of Pate's initial Writ of Habeas Corpus and

all others based upon a Void Judgment of Conviction. The Judgment and Conviction are

not supported by the evidence on the trial of the case and pursuant to a Grand Jury

Indictment that did not allege an Offense committed by Pate or alleged an offense not

supported by the evidence upon the trial of the case, from the 36th Judicial District Court

Aransas County Texas, who entered the Judgment of Conviction in Cause No. A-08

-5080-4CR .
3.
The proceedings held in Pate's previously filed Writs of Habeas Corpus and in the Trial

and Appeal Court were tainted by Extrinsic Fraud on This Honorable Court, The Trial

Court and on Pate by officer's of the Trial Court that corrupted the integrity of This

Courts Proceedings , preventing the Court's from performing in it's usual manner to

fairly and impartially adjudicate and denied Pate the opportunity to fully litigate in the

Habeas Proceedings and at his Trial and Appeal proceedings all the rights and defenses

that he could have asserted.

This Honorable Court denied or dismissed Pate's previously filed Writs of Habeas

Corpus based on a Judgment and Conviction procured by Extrinsic Fraud, and upon

Fraudulent Proceedings held prior to the Jury Trial in the separate Pre Trial Proceedings

in Pate's Cause No. A-08-5080-4CR, the separate pre trial proceedings of Pate's co-

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defendant Christoper Hall Cause No. A-08-5080-2CR and upon a a Fraudulent Record

of Proceedings Certified to this Honorable Court by The 36th Judicial District Court

Aransas County Texas, Judge Janna Whatley presiding in Cause No. A-08-5080-4CR

and based upon The “Void” Orders and Proceedings and The “Void” Judgment and

Conviction in that cause that was obtained by Extrinsic Fraud practiced by officer's of

the court on the 36th Judicial District Court, Pate, and the tier of fact.

PATE'S STATEMENT OF DEPRIVATION OF LIBERTY

Pate is currently incarcerated at The Ellis Unit, Huntsville,Texas pursuant to Judgment

of Conviction procured by Extrinsic Fraud on the Court and on Pate by Officer's of the

Trial Court.

STATEMENT OF JURISDICTION

All courts have the inherent equitable power to vacate an order or judgment that is Void

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

FACTUAL ISSUES PRESENTED

1.
This Honorable Court had no jurisdiction to adjudicate the merits of Pate's previously

filed Writs of Habeas Corpus, because the convicting court had no jurisdiction over the

person of Pate in cause no. A-08-5080-4CR.

The Judgments and Orders rendered by This Honorable Court were rendered and

adjudicated upon a Record of Proceedings certified from the Trial Court tainted by

extrinsic fraud on Pate and on the court by officer's of the trial court that corrupted the

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integrity of the proceedings of this Honorable Court preventing it from performing in

usual manner it's duties to fairly and impartially adjudicate Pate's Habeas Claims.

2.
The Record of Proceedings tainted by extrinsic fraud denied Pate his right to fully

litigate in the Habeas Proceedings and at his Jury Trial and his Appeal Proceedings all

the rights or defenses that he could have asserted .

3.
The Record of Proceedings tainted by fraud were Certified to this Court by Officer's of

the Trial Court with full knowledge that the Records were tainted by extrinsic fraud and

that the Record was both fraudulent and incomplete.

4.

The proceedings tainted by fraud were both outside the actual Jury Trial, and inside the

Jury Trial.

The Extrinsic Fraud practiced outside the Jury Trial in the pre trial proceedings of Pate

and his co defendant Christopher Hall, terminated the Trial Court's Jurisdiction to

proceed to a Joint or Separate Jury Trial, and because Jurisdiction was terminated, in the

Trial Court (36th Judicial District Court Aransas County Texas), Jurisdiction was not

conferred on this Court or the 13th Court of Appeals Corpus Christi, Texas. Because

none of the Court's had Jurisdiction, the Judgment of Conviction is Void upon it's Face,

or in the Judgment Roll and the Order's of This Honorable Court and the 13th Court of

Appeals are Void for lack of Jurisdiction, just as are the Trial Court's.

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 5.
The Grand Jury Indictment did not confer jurisdiction upon the trial court because it

alleged no Offense committed by Pate or there was No Evidence to Support the Offense

Alleged and No Evidence to Support the Conviction for the Offense Alleged.

6.
Even if the Grand Jury indictment conferred jurisdiction on the trial court and by
extension this court, the trial court's jurisdiction was lost in the proceedings when Pate
was not given Mandatory Notice of Court Orders, of co defendant's Motions or of
Hearings and specifically any Court Order that would Continue Pate's trial forward from
the Court Ordered Jury Trial Date of 11/3/08. Pate's trial was continued without
authority from 11/3/08 to first 1/5/09 and then finally to 2/9/09.

STATEMENT OF THE FACTS

HISTORY OF THE FACTS FOUND IN THE PROCEEDINGS OUTSIDE THE
JURY TRIAL TAINTED BY EXTRINSIC FRAUD PRACTICED BY
OFFICER'S OF THE COURT ON THE TRIAL COURT, APPEALS COURT
AND THIS HONORABLE COURT.

This summary of proceedings tainted by fraud is necessary to establish clear

and convincing evidence that the conduct of the officer's of the court was

directed at the judicial machinery of the court to intentionally deceive the court

and Pate by their willful blindness to the truth and or reckless disregard for the

truth and their concealment of their extrinsic fraud that deceived not only the

Trial Court, but Pate, The Appeal Court and this Honorable Court. The extrinsic

fraud practiced on the Trial Court, Pate and the Appeal Court flowed down to

this Honorable Court when officer's of the court with willful disregard for the

truth of the proceedings in the pre trial and jury trial, certified to this Honorable

Court a Fraudulent Record of Proceedings and a Judgment and Conviction

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procured without Jurisdiction by the fraudulent conduct exhibited by officer's

of the court in the pre trial proceedings and finally at the Jury Trial.

Pate respectfully requests that this Honorable Court consider taking notice of all

previously filed Writs, Exhibits, and Record of Proceedings filed with this

Honorable Court by Pate .

This summary of the proceedings tainted by fraud will establish Non

Compliance of Mandatory Service throughout the pre trial proceedings exparte

communications, and concealment of pre trial court proceedings and orders

from The Trial Court and from Pate that directly affected Pate's defense and set

the entire course of the proceedings in the Joint Jury Trial.

The Grand Jury Indictment upon which the 36th Judicial District Aransas

County took Jurisdiction alleged No Offense committed by Pate, or alleged an

Offense for which there was No Evidence to Support the Grand Jury Indictment

and No Evidence to Support the Conviction. In essence the State of Texas

practiced fraud upon the Trial Court, and Pate when The State amended the

Grand Jury Indictment by introducing at Trial a Theory by which Pate

committed the offense not alleged by the Grand Jury in The Grand Jury

Indictment. See Ex #1 page 4 the Jury Charge page 61 paragraph 2 alleging

criminal responsibility for the conduct of another pursuant to Texas Penal Code

7.01 and 7.02

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The extrinsic fraud occurred prior to Pate's Joint Jury Trial with co defendant

Christopher Hall (here after) Hall pre indictment and in the pre trial proceedings

and JuryTrial Voir Dire,Guilt and Innocence, and Punishment of both Pate and

co defendant Hall.It is important to note documented here in the Record, that

although Pate and Hall were jointly indicted and jointly tried , their pre trial

proceedings were held separately. Pate was not notified in the pre trial Motions

and Orders filed in Hall's proceedings, and Hall was not notified in the pre trial\\

Motions and Orders filed in Pate's Proceedings. Hall's pre trial proceedings were

not identified or certified to The Appeals Court's as part of Pate's Record of

Proceedings thereby effectively concealing from Pate,the Trial Court and both

Appeals Court's the pre trial proceedings where much of the extrinsic fraud was

practiced by the officer's of the court prior to the joint jury trial. After the District

Clerk or member of the clerk's office (officer of the court) made false entry of a

Motion for Continuance by Pate onto Pate's Docket Sheet,and reset Pate's trial

date without a Court Order or Hearing,the pre trial proceedings for Continuance

Orders that Continued Hall's Jury Trial (not Pate's) were fraudulently entered on

Pate's Docket Sheet and used by officers of the court to continue the fraudulent

scheme to jointly try Pate with the co defendant although Hall's Jury Trial had

already been severed from Pate's trial. The scheme was carried out and Pate

was Convicted in a Joint Jury Trial with his Co defendant for an offense for

which he is Not Guilty.

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Pate's Jury trial date was set for 11/03/08 RR 2 of 9 and No Motion or Court

Order exists in Pate's Record of Proceedings that Continued his Jury Trial date

first from 11/03/08 to 1/5/09 and again from 1/5/09 to 2/5/09, however there are

Court Orders in the co defendant's Record of Proceedings that show that his

trial was continued from RR 3 of 11 11/03/08 to first RR 4 of 11 1/5/09 and then

from 1/5/09 to Ex #2 pages 82-85 & page 137 2/9/09. In those

proceedings of the co defendant there is a Oral Court Order that Denies the

State's Motion to Carry Pate's trial forward with the co defendant by Judge Joel

Johnson RR 4 of 11.

The record of proceedings tainted by extrinsic fraud is centered around The

Fraudulently Amended Grand Jury Indictment,Ex #1 page 4 and Pate's

properly filed Motion for Severance filed 7/31/08 Ex # 1 pages 36-37 and his

Court Ordered Jury Trial Date for 11/3/08 set by Judge Michael Wellborn in

exparte hearing (Pate was not given notice and not present) on 9/25/08 RR vol

2 of 9. Judge Wellborn also at the same hearing refused to rule on Pate's

properly filed Motion for Severance and scheduled a hearing date on the Motion

for 10/3/08 that the clerk did not enter on the record. The Record of

proceedings in the Cause reveal that the Court did not hold a hearing on

10/03/08, and no new Court Order issued to Continue the hearing to a new

date. The Record reveals that Pate's pre trial Motion for Severance was not

ruled upon at pre trial, and no hearing was ever held on the issues of the
9
Motion for Severance. The Record of Proceedings demonstrates that the pre

trial court held Pate's pre trial proceedings Cause No. A-08-5080-4CR RR vol

2 of 9 date 9/25/08, , 3 of 9 date 10/23/08, separately from that of the co

defendant that he had been jointly indicted with, and that he was ultimately

jointly tired with. Co defendant Christopher Hall Cause No. A-08-5080-2CR RR

1 of 11 date , 2 of 11 date 7/24/08, 3 of 11 date 9/25/08 , 4 of 11 date

10/23/08, 5 of 11 date 11/25/08 , and 5A of 11 date 2/5/09. The Record of

Proceedings reveal that Pate was not Notified of any of Hall's pre trial

proceedings and did not appear at any of Hall's pre trial hearings and

was not given Notice of Motions filed by Hall, or Court Orders made upon

Hall's Motions Ex #2 Hall's Clerk Record.

Christopher Hall's pre trial proceedings RR vol 3 of 11 9/25/08 reveal that

Judge Michael Wellborn set Christopher Hall's Jury Trial Date for 11/3/08 but on

10/23/08 RR 4 of 11, Judge Joel Johnson Continued Hall's Jury Trial Date to

1/5/09, Announcement 12/22/09, and Denied The State's Motion to Carry Pate's

Jury Trial forward with Hall's New Jury Trial Date.

ON 10/30/08 , 35 days from the date that Judge Wellborn set Pate's Jury Trial

date for 11/03/08, and only 4 days from the date of the scheduled Jury Trial,

the Clerk of the Court or some other officer without a factual basis and in

contradiction of the trial court transcripts of evidence previously presented to

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this court and again presented herein, Fraudulently Entered a Motion for

Continuance and Reset Jury Trial 1/5/09, Announcement 12/22/08. onto Pate's

Record of Proceedings Ex #1 page 95 Pate's Criminal Docket Sheet.

The Record of Proceedings in the Cause reveals that in contradiction of

Pate's Court Ordered Jury Trial Date of 11/3/08 , the Jury Trial date passed

without objection from Pate's Defense, without the Court's

acknowledgment, and without the State's acknowledgment that the

Court's Order was being or had been violated and that Pate's U.S.

Constitutional Due Process Right to a Speedy Fair and Impartial Trial had

been violated.

On 12/22/09 The Clerk of the Court or some other officer without a factual

basis and in contradiction of the trial court transcripts of evidence previously

presented to this court and again presented herein, fraudulently entered onto

the Record of Proceedings Reset Jury Trial Date 2/9/09 and Announcement

2/5/09. Ex #1 page 95 Pate's Criminal Docket Sheet.

On 2/5/09 The Clerk of the Court or some other officer without a factual basis

and in contradiction of the trial court transcripts of evidence previously

presented to this court and again presented herein, fraudulently entered ALL R

onto the Record of Proceedings Ex # 1 page 95 Pate's Criminal Docket Sheet.

On 2/9/09 The State of Texas with Judge Janna Whatley presiding without a
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factual basis and in contradiction of Judge Wellborn's Court Order to set Pate's

Jury Trial date to 11/3/08 RR vol 2 of 9 and in contradiction of Judge Joel

Johnson's Order Denying the State's Oral Motion to Carry Pate's trial forward

with the co defendant RR 4 of 11 held Pate to Joint Jury Trial with the co

defendant Christopher Hall on 2/9/09.

The Trial Court Record of the Grand Jury Indictment, Ex #1 page 4 and The

Court's Jury Charge pages 60 and the evidence upon the trial put forth by the

State of Texas ( that Pate was criminally responsible for the conduct of his co

defendant by some overt act performed by Pate) reveals without a factual basis

and in contradiction of the Grand Jury Indictment, the State tried Pate on

elements of an offense not alleged in the Grand Jury Indictment and obtained a

Judgment of Conviction based upon elements not alleged in the Grand Jury

indictment.

The Record of Proceedings in the Judgment of Conviction reveals that the Trial

Court Judge Janna Whatley without factual basis and in contradiction of the pre

trial court proceedings and without Jurisdiction to Proceed to a Joint

Trial or any Trial proceeded illegally to try Pate jointly with the co defendant

Christopher Hall on 2/9/09, thus allowing a Jury Verdict of Guilty to be rendered

without Jurisdiction. The Record of Proceedings also reveal that The Trial Court

Judge without a factual basis and in contradiction of the transcripts of the trial ,
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Motions, Orders, and Hearings allowed The State of Texas to try Pate in Leg

Shackles vol 6 of 9 and entered a special finding onto the Judgment of

Conviction not found by the jury for “use of a deadly weapon”. Ex #1 page 91.

The Record of Proceedings in Cause No. A-08-5080-4CR reveals that the Trial

Court did not include in Pate's Certified Record of Proceedings, The Record of

Pre Trial Proceedings of Pate's co defendant Christopher Hall A-08-5080-2CR

thus concealing from This Honorable Court and Pate The Proceedings in RR

vol 4 of 11 where Judge Johnson Continued Hall's Trial date from 11/03/08 to

1/5/09 and where Judge Johnson denied the State's Motion to Carry Pate's trial

forward with the co defendant. Also Concealing from this Honorable Court and

Pate, that in RR 5 of 11 exparte proceedings where The State of Texas and the

co defendant's attorney Stan Turpin without factual basis and in contradiction

of the facts and pre trial proceedings misrepresented material facts , when

informing Judge Wellborn that Pate's trial date was scheduled for 1/5/09, and

that he did not have a Motion for Severance in his file. Also concealing from this

Honorable Court and Pate Motions and Orders filed without Notice to Pate Ex

#2 Hall's Motion for Continuance dated 12/19/08 and of Judge Wellborn's

Order Granting the Motion without a Hearing or Agreement of the Parties dated

12/22/09, pages 82-85. Also RR 5A of 11 showing that Pate was not present

and that the State did not announce Ready on Pate, nor did Pate's attorney

announce Ready, yet Judge Janna Whatley asked Pate's attorney who would
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be doing punishment. Because Hall's Record of Proceedings were not made a

part of Pate's Record of Proceedings and because Pate was not given Notice

of Hall's pre trial proceedings, Motion and Orders Pate was prevented from fully

litigating his Jury Trial and from fully litigating his Appeal and all of the

previously filed Writs of Habea's Corpus, and further The integrity of the

Habeas Proceedings held by this Honorable Court were tainted by the

fraudulent proceedings certified to this Court by officer's of the trial court (36 th

Judicial Court Aransas County Texas, Judge Janna Whatley presiding, leaving

this Honorable Court an inability to impartially and fairly adjudicate Pate's

Application for Habeas Corpus.

Argument and Authorities

The Grand Jury indictment upon which the trial court based it's

jurisdiction Ex #1 page 4 alleges that Pate acting alone and together with

Christopher Hall, Michael Underwood, Kevin Tanton and Anthony Ray did

then and there intentionally cause the death of Aaron Watson by shooting

him with a firearm. The indictment alleged an offense but not an offense

committed by Pate, as the Record on the cause shows that Pate's co

defendant caused the death of Aaron Watson by shooting him with a

firearm, and that the others caused the death of Aaron Watson because

they were with Christopher Hall and they each assaulted Aaron Watson

14
before Christopher Hall shot the victim with a firearm. The record on the

case shows no evidence to support the Grand Jury Indictment that Pate

acted alone and together with Christopher Hall Michael Underwood Kevin

Tanton and Anthony Ray and intentionally or knowingly caused Aaron

Watson's death by shooting him with a firearm. Pate's Conviction was for

Count One Murder as alleged in the indictment. Therefore either the charging

instrument did not confer jurisdiction on the trial court and the Conviction is

Void, or if the charging instrument conferred jurisdiction on the trial court, there

is no evidence that Pate committed the offense alleged in the indictment and

the conviction is Void. Because the Grand Jury indictment did not confer

jurisdiction on the Trial Court, no jurisdiction was conferred upon this Honorable

Court to adjudicate the merits of Pate's previously filed Writs of Habeas Corpus.

The Texas Court of Criminal Appeals has held that a judgment of conviction for a

crime is void (1) when the document purporting to be a charging instrument ie,

indictment does not satisfy the constitutional requisites of a charging instrument

there is no jurisdiction over the defendant and (2) when the Record reflects that

there is no evidence to support the conviction. Smith v. State 309 S W 3d 10

2010.

Even if the Grand Jury indictment conferred jurisdiction upon the trial court and

by extension this court, because the trial court lost jurisdiction in the
15
proceedings when Pate was not given Mandatory Notice Requirements

pursuant to Texas Code of Criminal Procedures Chapters 28 and 29 that

govern Mandatory Notice of Continuance Motions and Orders, the Judgment

and Conviction are still void for lack of jurisdiction and by extension the Orders

of this Honorable Court are void. See Exparte Rodriquez. 466 S W 3d 846

(2015), showing that jurisdiction is not waived when compliance with

mandatory service is not met. Also see Johnson v. Zerbst 304 U S 458 (1938)

showing when a court does not follow statutory procedures jurisdiction is lost.

Texas Code of Criminal Procedures Chapters 28 and 29 along with Chapter

21 that governs Indictment and amendment of indictments are procedures that

are statutory, and if not complied with violates a defendant's 14 th amendment

constitutional right to “due process” of law.

Pate did not waive his right to appear at pre trial proceedings, nor did he waive

his right to Notice of all Court Proceedings that would affect him including

Continuances Motions and Orders. See Knight v. Phillips Dist. Ct. E.d New

York 2012 citing from Johnson v. Zerbst “Courts must indulge “every

reasonable presumption against waiver of fundamental constitutional rights”.

Pate received no notice on the 10/30/08 Ex #2 page 95 fraudulent entry for a

Continuance and the Record shows that no Court Order issued. Pate received

no Notice on the 12/22/08 Order Ex. # 2 page 85 and he did not waive his right

16
to that Mandatory Requirement of Service.

One or more trial court officer's violated Texas Penal code 37.10 Tampering

with a court record when first they made fraudulent entries onto the trial court

record Ex #1 page 95 docket sheet entrys at dates 10/30/08, 12/22/08, and

2/5/09, and again when the Clerk of the Court under the supervision of the Trial

Court Judge certified a fraudulent record of proceedings to the 13 th Court of

appeals and to this Honorable Court.

Pate did not waive his constitutional right to be tried on charges brought by a

Grand Jury, however when the state introduced at trial an act/ theory not alleged

in the indictment, that Pate was criminally responsible for the conduct of

Christopher Hall and or his accomplices , the State constructively amended the

indictment removing Pate's constitutional right to be tired on charges found by a

Grand Jury.. See the theory alleging criminal responsibility Ex #1 page 61 The

Jury Charge. Also See Stirone v United States 361 U S 312 (1960)

showing defendant has the right to be tried only on charges made by a Grand

Jury, United States v. Bishop dist Court M.D. Fla. 2008 showing

“defendant has the “substantial right to be tried only on charges, presented in an

indictment returned by a Grand Jury, U. S. v. Ratliff-White 493 F. 3d 812

(2007) showing “and after an indictment has been returned it's charges may

not be broadened through indictment except by Grand Jury. , U. S. v

17
Sheets U. S. Dist Ct. E D Tenn. Knoxville 2009 showing; a court cannot

permit a defendant to be tried on charges not made in the indictment.

Procedural limitations on Motions to correct Fraud on the court do not apply to fraud

allegation, because “a decision procured by fraud on the court is not in essence a

decision at all, and never becomes final. Kenner v. Comm'r 387 F2d 689-691 7th Cir

(1968).

The Pre Trial Record of Proceedings on the Trial is Void of “Service of Court Order

pursuant to Mandatory Notice Requirements of any Court Order giving Notice to Pate ,

The State of Texas, The Trial Court or the co defendant that would Continue Pate's Jury

Trial forward from the Court Ordered Jury Trial Date of 11/3/08 Ordered by Judge

Michael Wellborn in pre trial proceedings on 9/25/08 RR vol 2 of 9.

The Record of Proceedings establish firmly the absence of the Trial Court's Jurisdiction

to proceed to a Jury Trial for the lack of the Mandatory Notice Requirements of a

Court Order. See Texas Code of Criminal Procedures Chapters 28 and 29 that govern

the requirements for filing Motions and Orders and Notice for Continuances.

The fraudulent conduct of the officer's of the trial court by concealing Court

Orders and Proceedings from Pate prevented him from fully exhibiting his claim for

Severance of Defendant's and because he had no knowledge of the fraudulent

entrys made for Continuances onto his record of proceedings he could not present

a claim for the Violation of his Constitutional Rights to a Speedy Fair and

Impartial Trial. Pate has been before this Honorable Court in Applications for Writ of
18
Habeas Corpus numerous times seeking relief from the Trial Court's Judgment and

Conviction and claiming that a fraud was practiced on this Honorable Court. Pate did

not discover the proof of the proceedings that would support his claim of extrinsic fraud

until after his Trial, Appeal, Initial Application for Writ ot Habeas Corpus and his 1st

Federal Application for Writ of Habeas Corpus. Pate discovered proof of the extrinsic

fraud practiced on him and the Trial Court when he decided to obtain the Record of

Proceedings of his co defendant Hall, after all of his attempts of Appeal and Writ

Applications failed. Pate's Federal Writ Application was denied with Order to not permit

a COA in March of 2014, and in April 2014 Pate obtained his co defendant's record and

discovered the proof of extrinsic fraud practiced on him and all the courts. Pate then

filed his firs Motion for relief in the trial court 12/5/14 & has diligently pursued relief

from the time he discovered the fraud. Even so the Supreme Court decided in Hazel

Atlas that even if the exercise of diligence was not timely, relief could not be denied on

that ground because as in Pate's case, there is public interest involved regarding the

removal of a defendant's liberty without due process.

This proof although it existed before Pate's Trial, was concealed by the officer's of the

court in the separate pre trial proceedings of Christopher Hall, and because Pate was

intentionally not given Notice of the Pre Trial proceedings , Motions, and Orders of the

Court that were used to deceive Pate and the Court,Pate was prevented from appearing

in pre trial proceedings to present his claim for a Motion to Sever his trial and to

challenge his Constitutional Right to a “Speedy” Fair and Impartial Trial.

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The case of United States v. Throckmorton 98 U.S. 61 (1848),

makes clear that “By reason of something done by the Successful Party to a suit

there was in fact no adversary trial or decision of the issue in the case, Where the

unsuccessful party has been prevented from fully presenting his case, that cases

like these which show that there has been no real contest in the trial or hearing of

the case, are reasons for which a New Suit may be sustained to set aside and annul

the former judgment”.

The summary of the proceedings supported by the attached Records that are

tainted by fraud reveal conduct by officer's of the Trial court that include (The

State of Texas) directed at the judicial machinery that is intentionally false

willfully blind to the truth and in reckless disregard for the truth and that they

concealed the conduct and the fraud and by doing so deceived The Trial Court,

Pate, The Appeal Court, and this Honorable Court. See below;

“Fraud on the court” consists of conduct: (1) on part of officer of

the court, (2) that is directed to judicial machinery itself, (3) that
is intentionally false, willfully blind to the truth, or is in reckless
disregard for the truth, that is positive averment or is
concealment when one is under duty to disclose, that deceives
court. (Demjanjuk v. Petrovsky, 10 F.3d 338, rehearing and
suggestion for rehearing denied, certiorari denied Rison v.
Demjanjuk 115 S.Ct. 295, 513 U.S. 914, 130 L.Ed.2d 205
(Ohio) 1993.—Fed Civ Proc 2654.“. . .errors are so prejudicial
and fundamental that expenditure of further time and expense
would be wasteful, if not futile.” (Salvatore v. State of
Florida,366 So. 2d 745 [Fla. 1978],cert. denied,444 U.S.
885, 100 S. Ct. 177, 62 L. Ed. 2d 115 [1979]).

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Pate has and is suffering a Gross Miscarriage of Justice, and it is this Court's

Duty to Correct it's “Void” Orders pertaining to Orders Denying or Dismissing

Pate's previously filed Writ's of Habeas Corpus Harrison v. Whiteley Tex.

Comm. App. 6 S W 2d 89.

The Supreme Court in the Hazel-Atlas case found that the higher court has

power and the duty to vacate it's own orders and to give the lower court

directions because of the fraud practiced on the court by officer's of the court.

VOID JUDGMENT

Where the fraud is not the subject of litigation, not anything which was in

the issues tried but fraud practiced upon a party or the court, during the

trial or in obtaining the Judgment it may be attacked collaterally and on

account thereof set aside and vacated. United States v. Throckmorton. 98

U S 61 Sup. Ct. 1848.

Nearly all Principles that govern a claim of fraud on the court comes from

The United States Supreme Court Case of Hazel-Atlas Co. v. Hartford Co.

322 U.S. 228 64 Supreme Ct. 997 , 88 L. Ed. 1250 Supreme Court 1944.

1st, The power to set aside a judgment exists in every court. 2 Nd , In whichever

court the fraud was committed that court should consider the matter. ( This

principle is in direct conflict with The State of Texas Statutory procedures that

21
demands that a final felony conviction can only be remedied by Texas Code

of Criminal Procedure Article 11.07 ) 3rd, while parties have the right to file a

motion requesting the court to set aside a judgment procured by fraud the court

may also proceed on it's own motion. Indeed one court stated that the facts

that had come to it's attention not only justified the inquiry but imposed upon the

court the duty to make it even if no party to the original cause should be willing

to cooperate to the end that the records of the court might be purged of fraud, if

any be found to exist. 4Th, Unlike just about every other remedy or claim existing

under the rules of the civil procedure or common law, there is No Time Limit on

Setting Aside a judgment obtained by fraud, nor can laches bar consideration of

the matter. The logic is clear “The law favors discovery and correction of

corruption of the judicial process even more than it requires an end to lawsuits”

In The case of Kupferman v. Consolidated Research and Mfg. Corp.

the court stated that “ while an attorney” ( this includes The State of Texas

representing the People) should represent his client with singular loyalty that

loyalty obviously does not demand that he act dishonestly or

fraudulently on the contrary his loyalty to the court as an officer of the court

demands integrity and honest dealing with the court and when he departs from

that standard in the conduct of the case, he perpetrates a “fraud upon the court”

Equitable component the Doctrine of Fraud on the court allows courts to

provide equitable relief. Indeed the doctrine of fraud on the court is a judicially
22
devised equitable doctrine, the application of which is dependent on the facts of

the case. In Hazel-Atlas the court noted; Equitable relief against fraudulent

judgments is not of statutory creation, It is judicially devised remedy fashioned

to relieve hardships which from time to time arise from a hard and fast

adherence to another court made rule the general rule that judgments should

not be disturbed after the term of the court has expired. Created to avert the

evils of archaic rigidity this equitable procedure has always been characterized

by flexibility which enables it to meet new situations which demand equitable

intervention on and to accord all the relief necessary to correct the particular

injustices involved in these situations.

CONCLUSION

A review of the evidence in the light most favorable to the verdict

indicates that a rational trier of fact could NOT
have found the essential elements of the offense alleged in the
indictment or of the evidence on trial
beyond a reasonable doubt. Jackson v. Virginia,443 U.S. 307, 99 S. Ct.
2781, 61 L. Ed. 2D 560 (1979).

A review of the Record of the Proceedings cannot support the Trial Court, 13th
Court of Appeals, or this Honorable Court's Jurisdiction over Pate in any of the
Courts Proceedings.

The Record of Proceedings support the finding of a Void Judgment of Conviction,

Void 13th Court of Appeals Proceedings and Void Texas Court of Criminal
Appeals Proceedings.
 23
PRAYER

Wherefore, premises considered Pate prays for Relief from all Orders or

Judgments resulting from the Proceedings in The Texas Court of Criminal

Appeals had on the Judgment and Conviction from the 36 th Judicial

District Court Aransas County Texas, and on the Orders Affirming the

Judgment and Conviction from the 13th Court of Appeals Corpus Christi,

Texas and on The Judgment and Conviction rendered by the 36 th Judicial District

Aransas County Texas, Reversing the Judgment and Conviction and Dismissing

The indictment with Prejudice.

 24
CERTIFICATE OF SERVICE

I, Nema Bardin hereby certify that the foregoing Motion To Vacate was hand

delivered to The Texas Court of Criminal Appeals at 201 West 14th St. Austin, Texas

78701 on the ____ day of January 2018.

___________________________

Nema Bardin
1801 Westlake Dr #112
Austin, Texas 78746
512-487-0197
 25
APPENDIX

IN THE TEXAS COURT OF CRIMINAL APPEALS

CHADRICK PATE #1563340

v
TEXAS COURT OF CRIMINAL APPEALS

PATE'S RECORD

EX #1 Clerk's Record

RR VOL 1 OF 9
RR VOL 2 OF 9
RR VOL 3 OF 9
RR VOL 4 OF 9
RR VOL 6 OF 9 EXCERPT LEG RESTRAINTS

HALL'S RECORD

EX #2 Clerk's Record

RR vol 1 of 11
RR vol 2 of 11
RR vol 3 of 11
RR vol 4 of 11
RR vol 5 of 11
RR vol 5A of 11

The Records have been previously submitted to this Honorable Court along with
other RR Records and various other exhibits in Pate's previously filed
Application for Writs of Habeas Corpus and Pate respectfully request that this
Honorable Court take Notice of all previously filed Writs and Records filed.
 28
INDEX OF AUTHORITIES
Demjanjuk v. Petrovsky 10 F. 3d 338..............................................................20
Exparte Rodriquez 466 S. W. 3d 846 2015.....................................................16
Harrison v. Whiteley Tex. Comm. App. 6 S W 2d 89......................................21
Hazel Atlas Co. v. Hartford Co. 322 U.S. 61 Sup. Ct. 1848..........................21
Jackson v. Virginia 443 U.S. 307 . 00 S. Ct. 99 S. Ct. 2781............................23
Johnson v. Zerbst 304 U.S. 458 1938...........................................................2,16
Kenner v. Comm'r 387 F 2d 689-691 7th Cir. 1968...........................................18
Knight v. Phillips Dist. Ct. E.d. New York 2012 …..........................................16
Kupferman v. Consolidated Research and Mfg. Corp...................................22
Rison v. Demjanjuk 115 S.Ct. 295 513 U.S. 914, 130.....................................20
Salvatore v. State of Florida, 366 So. 2D 745 Fla. 1978.................................20
Smith v. State 309 S.W. 3D 10 2010.................................................................15
Stirone v. United States 361 U. S. 312 1960....................................................17
Universal Oil Products Co. v. Root Ref. Co., 328 U. S. 575, 580 (1946).........4
United States v. Bishop Dist. Court M.D. Fla.2008.........................................17
United States v. Throckmorton 98 U.S. 61 1848.......................................20,21
U. S. v. Ratliff-White 493 F. 3d 812 2007..........................................................17
U.S. v. Sheets U.S. Dist. Ct. E.D. Tenn Knoxville2009..............................17,18

TEXAS PENAL CODES

Texas Penal Code 7.01.....................................................................................7
Texas Penal Code 7.02.....................................................................................7
Texas Penal Code 7.03.....................................................................................7
Texas Penal Code 19.02...................................................................................1
Texas Penal Code 22.02...................................................................................1
Texas Penal code 37.10...................................................................................17
Texas Penal Code 71.02..................................................................................1

TEXAS CODE OF CRIMINAL PROCEDURE

Texas Code of Criminal Procedure Chapter 21..............................................16

Texas Code of Criminal Procedure Chapter 28.........................................16,18
Texas Code of Criminal Procedure Chapter29..........................................16,18
 ii
CERTIFICATE OF COMPLIANCE

I Nema Bardin typed the contents of this Motion to Vacate for Chadrick Pate
and I 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, jurisdiction, statement of the case, issues and
certificates of compliance, service, verification is 4,623.

_______________
Nema Bardin
1801 Westlake Dr
#112
Austin, Texas 78746
 27
CERTIFICATION

My name is Chadrick Pate, and I have reviewed my Motion to Vacate

to this Court and concluded that every factual statement in my Petition is
supported by competent evidence in the appendix or Record of Proceedings
enclosed.
 26
IN THE TEXAS COURT OF CRIMINAL APPEALS

_______________________________________________________________________
In re CHADRICK PATE #1563340
V.
TEXAS COURT OF CRIMINAL APPEALS
_______________________________________________________________________
FROM THE ORDERS AND JUDGMENTS OF THE TEXAS COURT OF
CRIMINAL APPEALS CAUSE NOS. WR-78,165-01 through WR-78,165-09
_______________________________________________________________________

MOTION TO VACATE ALL JUDGMENTS AND ORDERS IN THE CAUSE OF

CHADRICK PATE CAUSE NOS WR-78,165-01 -WR-78,165-09 FOR FRAUD ON
THE COURT AND LACK OF JURISDICTION

PARTIES

REALTOR CHADRICK PATE #1563340

ELLIS UNIT 1697 FARM TO MARKET 980
HUNTSVILLE, TEXAS 77320

THE TEXAS COURT OF CRIMINAL APPEALS

201 West 14th St.
P. O BOX 12308
AUSTIN, TEXAS 78711
 i
IN THE TEXAS COURT OF CRIMINAL APPEALS

In Re: CHADRICK PATE #1563340

V.
TEXAS COURT OF CRIMINAL APPEALS

INDEX

Parties Cover Sheet.............................................................................................i

Index of Authorities...............................................................................................ii

Motion to Vacate..............................................................................................1-24

Statement of The Facts Underlying Proceedings .............................................1,2

Description of Respondent's Action from Which Pate Seeks Relief..................2-4

Pate's Statement of Deprivation of Liberty...........................................................4

Statement of Jurisdiction......................................................................................4

Factual Issues Presented..................................................................................4-6

Statement of the Facts...................................................................................6-14

Argument and Authorities..............................................................................14-23

Conclusion..........................................................................................................23

Prayer.................................................................................................................24

Certificate of Service..........................................................................................25

Certification.........................................................................................................26

Certificate of Compliance...................................................................................27

Appendix............................................................................................................28