Anthony Gozdowski v. T.D.C.J.-I.D., Larry Berger, Mark Sandlin, Michael Odom and Preston Maxwell ( 2014 )

TO: The Chief Deputy Clerk APPEAL NO. 12-14-00350-CV
Katrina Mclenny Trial No. 87-12099
of The Twelfth Court
of Appeals Tyler Texas
RE: ANTHONY GOZDOWSKI #1000320 Dated December 17,2014
V. FILED IN COURT OF APPEALS
T.D.C.J.-I.D.,Larry Berger, 12th Court •
v>WMnBirrWHIW..i. in .,-—„...^
r-|
rmru i'Wlul "4
Mark Sandlin,Michael Odom,
Preston Maxwell
DEC 2 9 m
Dear Ms. Mclenny,
TYLER TE.CA3
CATHY S. LUC:^CLERK
I have enclosed my docketing statment to the court, along With an AFFIDAVIT OF
PREVIOUS FILINGS (Please Attach to My Affidavit of Indegence). I have also sent
a Motion for Rehearing due to the courts dismissal of my case. I have also sent
a Motion for Suspention of Rule 9 T.R.A.P.. Will you please file these with the
Honorable Court for a ruling. I am furthermore unable to make copies in order
to provide service in a timely matter therefore will you please E-File the fore
going documents to Gregg Abbott at WWW.0AG.TX.G0V.COM.
I would further like to deeply apologize to the Honorable Court for failing to
Include an Affidavit of previous filings with my Affidavit of Indegency, Some
one probable an offender tore Pages 66-68 out of Chapt 14.002 of the C.P.R.C.
and this is the reason I had no notice of the statue requirment that the Affi
davit of Previous Filings also be filed on Appeal.
Thank You,Very Much
Signed
Anthony Gozdowski #1000320
Michael Unit 2664 FM 2054
Tennessee Colony Texas 75886
ANTHONY GOZDOWSKI #1000320 APPEAL NO. 12-14-00350-CV IN THE TWELFTH
V. TRIAL NO. 87-12099
T.D.C.J.-I.D.,LARRY BERGER, COURT OF APPEALS
MARK SANDLIN,MICHAEL ODOM,
§
PRESTON MAXWELL § TYLER,TEZAS
§ 12
MOTION FOR REHEARING DEC 29 20W
NOW COMES, Anthony Gozdowski #1000320 in The Twelfth Court of Appeals and inthere (Lm
would Respectfully request the Honorable Court to grant him a Rehearing in the
above mentioned appeal and therefore will show as follows:
I.
Appellants review was dismissed due to his failure to file an Affidavit of Previous
filings that should have been attached to his affidavit of Indegence pursuent to
C.P.R.C. 14.002 whereas amended in 2012 the requirment of the Affidavit of previous
filings must be filed in an appeals.
REASONS FOR THE FAILURE TO FILE REQUISITE AFFIDAVIT OF PREVIOUS FILINGS:
Appealant has to rely on the Michael Unit Law Library to do his legal research and
in Chapt. 1-16 of the C.P.R.C. Chapter 14.002 has been torn out of the book for some
time now and therefore it was not for due dilegence that Appellant failed to comply
with the statutory requirments of Chap. 14.002. The Honorable Court can call The Mi.
Unit Law Library (Ms. Smith/Mr.Mcray,Ms.Stotts) to verify this.
Appellant has never before filed a civil suit for any means other to attack his crimi
nal conviction and inthere such an Affidavit is not required or was not required in
2003 till 2006, Therefore Appellant did not have general knowledge of the Affidavit.
II.
Appellants GROUNDS FOR APPELLATE REVIEW ARE MERITORIOUS and if given the opportunity
to continue the appeal The Honorable Court would give a favorable ruling, Where the
Trial Court Judge Abused her Discretion in her ruling to dismiss,i.e. The Trial Court
Ruled on a Suit Styled ANTHONY GOZDOWSKI #541668 V. LONNELL WEST Then stated his case
against Lonnell West was being dismissed for failing to file an Affidavit of Indegence
and a copy of the written decision from the grievance system.
A). Appellant's TDCJ-ID Number is 1000320 and not 541668 as the trial court alleged.
B). APPELLANT'S SUIT IS STYLED ANTHONY GOZDOWSKI #1000320 V. TDCJ-ID, LARRY BERGER,
MICHAEL ODOM, and PRESTON MAXWELL, NOT ANTHONY GOZDOWSKI #541668 V. LONNELL WEST
AS THE TRIAL COURT HAS ALLEGED.
Page 1. of 3.
APPEAL NO. 12-14-00350-CV
TRIAL NO. 87-12099
MOTION FOR REHEARING (CONT.)
C). APPELLATE DID FILE AN AFFIDAVIT OF INDEGENCY AS WELL AS A COPY OF THE FINAL
DECISION OF THE GRIEVANCE SYSTEM AS REQUIRED PURSUENT TO CPRC Chapt 14.005.
1). The trial court lacked "SUBJECT MATTER JURISDICTION" to make a ruling in a
cause that was never filed thus styled Anthony Gozdowski V. Lonnell West and
this renders the trial courts judgment Void.
2). The trial court abused it's descretion by dismissing cause 87-12099 without
reviewing the Petition for suit as well as the requisite Affidavits with the
step-1 and step-2 grievance decisions.
3). The trial court abused her descretion in failing to rule on Appellants Motions:
(a). Motion for New Trial.
(b). Motion to Recind Dismissal Order and Reinstate Cause,
(c). Motion to Correct Clerical Record TRCP 316.
III.
The trial court has refused to adhere to Appellants request for filemarked copies
of the trial record and has even ignored Appellant's Father Gerald Gozdowski's
writen request pursuent to Tx.Gov Code 552. for public Information (Copy of Record).
UNSWORN DECLARATION
I Anthony Gozdowski #1000320 hereby swear and declare that the foregoing is true and
correct to the best of my knowledge.
SIGNED CUj&~} vMji^ IPCV32DDATED jZ~ (7 ' jjj
PRAYER
I Anthony Gozdowski #1000320 Pray that the Honorable Judge (s) hereby grant his Motion
for Rehearing for the reasons stated herein. •
SIGNEDQaMa^ i3'^JLjV i"^TJATED iZ ' '7~/f
CERTIFICATE OF SERVICE
I Anthony Gozdowski hereby Certify that a true and correct copy of the foregoing Motion
has been sent To Gregg Abbott Via the Appellat Courts E-Filing System at WWW.0AG.TX.GOV.
COM, or Via U.S. Mail at Gregg Abbott OAG 209 W. 14th St. P.0.Bx.l2548 Austin Tx.78711-
2548.
Page 2. of 3.
APPEAL NO 12-14-00350-CV
TRIAL NO 87-12099
MOTION FOR REHEARING (CONT.
DATED /' Z -( 1 - fj SIGNED OubLi Jj-JjJ- /0&&3LO
&
ORDER
CAME TO BE HERD on this day of month 2014 Appellant's "Motion For
Rehearing" and therefore it is in all things hereby Ordered, Adjudged, and Decreed
That Appellant's Motion be (GRANTED) OR (DENIED)
Presiding Judge
Page 3. of 3.
Appellate Docket Number: 12-14-00350 FILED IN COURT OF APPEALS
12th Cou-tof Arvr •'- D'strict
Appellate Case Style: T.D.C.J.-I.D.
ANTHONY Vs LARRY BERGER,MARK SANDLIN, .-:.._
GOZDOWSKI MICHAEL ODOM,PRESTON MAXWELL H7C 2 9 20H
Companion Case No.: 87-12099
CATHY S. LUSK CA FRK"
Amended/corrected statement: DOCKETING STATEMENT (Civil)
Appellate Court:
(to be filed in the court of appeals upon perfection of appeal under TRAP 32)
I. Appellant II. Appellant Attoraey(s)
[xl Person Q Organization (choose one) • Lead Attorney N/A
First Name:
First Name: ANTHONY Middle Name:
Middle Name: EDWARD Last Name:
Last Name: GOZDOWSKI Suffix:
Suffix: #1000320 Law Firm Name:
ProSe: ® Address 1:
Address 2:
City:
State: Texas Zip+4:
Telephone: ext
Fax:
Email:
SBN:
III. Appellee IV. Appellee Attorney(s)
JX] Person [j£J Organization (choose one) 0 Lead Attorney Gregq Abbott A.G.
FirstName: Greqq
FirstName: T.D.C.J.-I.D., LARRY BERGER, Middle Name: N/A
Middle Name: mRK SANDLIN, Last Name: Abbott
MICHAEL ODOM,
Last Name: PRESTON MAXWELL Suffix: Attorney General
Suffix: Law Firm Name: O. A. G.
ProSe: 0 Address 1: 209 W. 14th Street P.O. Box 12548
Austin Texas 78711-2548
Address 2:
City: Austin Texas
State: Texas zip+4:78711-2548
Telephone: N/A ext_
Fax: N/A
Email: www.tx.gov.com
SBN:
Pagel of 7
V. Perfection Of Appeal And Jurisdiction
Nature ofCase (Subject matter or type of case): Civil: Tort Claim, Theft Liability Claim,Common Nusience
Date order orjudgment signed: September 2,2014 Type ofjudgment: Dismissed w/Prej.
Date notice of appeal filed in trial court: December 6, 2014
If mailed to the trial court clerk, also give the date mailed: November 29, 2014
Interlocutory appeal of appealable order: fj Yes [^ No
If yes, please specify statutory or other basis on which interlocutory order is appealable (See TRAP 28):
Accelerated appeal (See TRAP 28): • Yes £3 No
If yes, please specify statutory or otherbasis on which appeal is accelerated:
Parental Termination or Child Protection? (See TRAP 28.4): rjYes |XjNo
Permissive? (See TRAP 28.3): DYes 0 No
If yes, pleasespecify statutory or other basis for such status:
Agreed? (See TRAP 28.2): • Yes 0 No
If yes, pleasespecify statutory or other basis for such status:
Appeal should receive precedence, preference, or priority under statute or rule: l_l Yes l2U No
If yes, pleasespecify statutory or other basis for such status:
Does this case involve an amountunder$100,000? |X] Yes [^No
Judgment or order disposes of all parties and issues: • Yes fx]No
Appeal from final judgment: E Yes fj No
Does the appeal involve the constitutionality or the validity ofastatute, rule, or ordinance? fj Yes [x] No
VI. Actions Extending Time To Perfect Appeal
Motion for New Trial: [XjYes • No If yes, date filed: September 28,2014
Motion to Modify Judgment: 0Yes QNo If yes, date filed: September 28,2014
Request for Findings of Fact rjYes 0No If yes, date filed:
and Conclusions of Law:
[XjYes • No If yes, date filed: September 28 , 2014
Motion to Reinstate:
• Yes [J No If yes, date filed:
Motion under TRCP 306a:
Other: TRCP 316 [XjYes CJNo Correction of Clerks Record in Judgment
Filed October 22,2014 To Best of my Knowledge
If other, please specify:
VII. Indigency Of Party: (Attach file-stamped copy of affidavit, and extension motion if filed.)
Affidavit filed intrial court: H Yes fj No If yes, date filed: August 9,2014
Contest filed intrial court: DYes 0No If yes, date filed: N/A
Date ruling on contest due: N/A
Ruling oncontest: • Sustained • Overruled Date of ruling: N/A
Page 2 of 7
VIII. Bankruptcy
Has any party to the court's judgment filed for protection in bankruptcy which might affect this appeal? ]] Yes 0 No
If yes, please attach a copy of the petition.
Date bankruptcy filed: N/A Bankruptcy Case Number:
IX. Trial Court And Record
Court: 87tn District Court Clerk's Record:
County: Anderson Trial Court Clerk: [Xj District • County
Trial Court Docket Number (Cause No.): 87 -12099 Was clerk's record requested? H Yes • No
If yes, date requested: November 29,2014
Trial Judge (who tried or disposed of case): If no, date it will be requested:
First Name: Deborah Were payment arrangements made with clerk? [~jYes [X]No
Middle Name: N/A (Note: No request required under TRAP 34.5(a),(b))
Last Name: Oats-Evans
Suffix:
Address 1:500 N. Church St- Rm. 18 Palestine Tx. 75801-2913
Address 2 :
City: Palestine
State: Texas Zip + 4: 75801-2913
Telephone: (903)723-7412 ext.
Fax: N/A
Email: N/A
Reporter's or Recorder's Record:
Is there a reporter's record? FJ Yes E No
Was reporter's record requested? \x\Yes • No
Was there a reporter's record electronically recorded? [~J Yes 0No
If yes, date requested: November 29 ,2014
If no, date it will be requested:
Were payment arrangements made with the court reporter/court recorder? rn Yes fx] No
Page 3 of 7
• Court Reporter FJ Court Recorder
JU Official • Substitute
First Name: N/A
Middle Name: N/A
Last Name: N/A
Suffix:
Address 1: 500 N- church st- Rm.18 Palestine Tx 75801-2913
Address 2:
City: Palestine
State: Texas Zip + 4: 75801-2913
Telephone: (903)723-7412 ext. Add Another
Reporter
Fax:
Email: N/A
X. Supersedeas Bond
Supersedeas bond filed: • Yes 0 No If yes, date filed:
Will file: DYes [X] No
XI. Extraordinary Relief
Will you request extraordinary relief (e.g. temporary orancillary relief) from this Court? fj Yes 0 No
If yes, briefly state the basis for your request:
XII. AlternativeDispute Resolution/Mediation (Complete section if filing in the 1st, 2nd, 4th, 5th, 6th, 8th, 9th, 10th,11th,12th,13th,
or 14th Court of Appeal) .
Should this appeal be referred tomediation? r^-i yes i—i vr0
If no, please specify:
Has the case been through an ADR procedure? [jYes [X| No
If yes, who was the mediator?
What type of ADR procedure?
Atwhat stage did the case go through ADR? FJ Pre-Trial FJ Post-Trial FJ Other
If other, please specify:
Type of case? Civil
Give a brief description ofthe issue to be raised on appeal, the relief sought, and the applicable standard for review, ifknown (without
prejudice to the right to raise additional issues or request additional relief):
Trial Court Judge Abused her Discretion and Lacked Subject Matter Jurisdiction in said
Cause by rendering judgment on Petition NEVER FILED between Parties.
How was the case disposed of? Dismissed With Prejudist
Summary of reliefgranted, including amount of money judgment, and ifany, damages awarded. N/A
Ifmoney judgment, what was the amount? Actual damages: N/A
Punitive (or similar) damages: N/A
Page 4 of 7
Attorney's fees (trial): N/A
Attorney's fees (appellate): N/A
Other:
Pro-Se
r ro-se
If other, please specify: N/A
Will you challenge this Court's jurisdiction? QYes [Xj No
Does judgment have language thatone or more parties "take nothing"? FJ Yes [X] No
Doesjudgmenthave a Mother Hubbard clause? [J]Yes |T] No
Other basis for finality? N/A
Rate the complexity ofthe case (use 1 for least and 5 formost complex): \%} 1 FJ 2 FJ 3 • 4 f~j5
Please make my answer tothepreceding questions known to other parties inthis case. 0 Yes FJ No
Canthe parties agree on an appellate mediator? Jx] Yes [J No
If yes, please give name, address, telephone, fax and email address:
Name N/A Address Telephone Fax Email
Languagesother than English in which the mediator should be proficient: N/A
Name ofperson filing outmediation section of docketing statement: Anthony Gozdowski #1000320
XIII. Related Matters
List any pending or past related appeals before this or any other Texas appellate court by court, docket number, and style.
Docket Number: None Trial Court:
Style:
Vs.
Page 5 of 7
XIV. Pro Bono Program: (Complete section if filing in the 1st, 3rd, 5th, or 14th Courts of Appeals)
TheCourts ofAppeals listed above, in conjunction with the State Barof Texas Appellate Section ProBono Committee and local Bar
Associations, areconducting a program to place a limited number of civil appeals with appellate counsel whowill represent theappellant in
the appeal before this Court.
The Pro Bono Committee is solely responsible for screening and selecting the civil cases for inclusion in the Program basedupon a numberof
discretionary criteria, including the financial means of the appellant or appellee. If a case is selected by the Committee, and can bematched
with appellate counsel, that counsel will take over representation ofthe appellant or appellee without charging legal fees. More information
regarding this program can be found in the Pro Bono Program Pamphlet available in paper form at the Clerk's Office or ontheInternet at
www.tex-app.org. If your case is selected and matched with a volunteer lawyer, you will receive a letter from thePro Bono Committee within
thirty (30) to forty-five(45) days after submitting this Docketing Statement.
Note: there is no guarantee that if you submit yourcasefor possible inclusion in the ProBono Program, the Pro Bono Committee will select
your case and thatpro bono counsel can be found to represent you. Accordingly, you should notforego seeking other counsel to represent you
inthis proceeding. By signing your name below, you are authorizing thePro Bono committee to transmit publicly available facts and
information about your case, including parties and background, through selected Internet sites and Listserv to its pool of volunteer appellate
attorneys.
Do you want this case to be considered for inclusion in the Pro Bono Program? K\ Yes FJ No
Do you authorize thePro Bono Committee to contact yourtrial counsel of record in thismatter to answer questions the committee mayhave
regarding the appeal? 13 Yes FJ No
Please note that any such conversations would be maintained as confidential by the Pro Bono Committee and the information used solely for
the purposes of considering the case for inclusion in the Pro Bono Program.
If you have notpreviously filed an affidavit of Indigency and attached a file-stamped copy of thataffidavit, does your income exceed 200% of
theU.S. Department ofHealth and Human Services Federal Poverty Guidelines? • Yes [&] No
These guidelines can be found in the Pro BonoProgram Pamphlet as well as on the internet at http://aspe.hhs.gov/poverty/06poverty.shtml.
Are you willing to disclose your financial circumstances to the Pro Bono Committee? IS] Yes [_J No
If yes, please attach an Affidavit of Indigency completed and executed by the appellant or appellee. Sample forms may be found in the Clerk's
Office or on the internet at http://www.tex-app.org. Your participation in the Pro BonoProgram may be conditioned upon yourexecution of
an affidavit under oath as to your financial circumstances.
Give a briefdescription of the issues to be raised on appeal, the relief sought, and the applicable standard of review, if known (without
prejudice to the right to raise additional issues or request additional relief; usea separate attachment, if necessary).
The Trial Court Judge Abused her descretion by not having subject matter jurisdiction too
dismiss Appellant's Petition for suit, a suit Style ANTHONY GOZDOWSKI V. LONNELL WEST whiclji
is not the suit that Appellant filed in the 87th District Court. The suit Appellant filed
is Styled ANTHONY GOZDOWSKI #1000320 V. T.D.C.J.-I.D.,LARRY BERGER,MARK SANDLIN,MICHAEL
ODOM, and PRESTON MAXWELL. Therefore rendering the Judgement void.
XV. Signature
Signature of counsel (or pro se party) Date: 12-18-2014
Printed Name: Anthony Gozdowski #1000320 State BarNo.:
Electronic Signature:
(Optional)
Page 6 of 7
XVI. Certificate of Service
The undersigned counsel certifiesthat this docketing statement has been served on the following lead counsel for all parties to the trial
court's order or judgment as follows on
JA
Signature of counsel (ofpYo se party) Electronic Signature:
(Optional)
State Bar No.:
Person Served
Certificate of Service Requirements (TRAP 9.5(e)): A certificate of service must be signedby the person who made the service and must
state:
(1) the date and manner of service;
(2) the name and address of each person served, and
(3) if the person served is a party's attorney, the name of the party represented by that attorney
Please enter the following for each person served: GREGG ABBOTT Attorney for T.D.C.J.-I.D., LARRY BERGER,
MARK SANDLIN, MICHAEL ODOM, and PRESTON MAXWELL
Date Served:
Manner Served: U.S. MAIL Via The Appeal Court Clerk/ Via Appeal court E-File Systems
First Name: TDCJ-ID, LARRY, ' MARK, MICHAEL, PRESTON
Middle Name:
N/A N/A N/A N/A N/A
Last Name: N/A BERGER SANDLIN ODOM MAXWELL
Suffix:
Law Firm Name: GREGG ABBOTT: TEXAS ATTORNEY GENERAL
Address 1: 209 West 14th Street P.O. Box 12548
Address 2:
City: Austin
State Texas 78711- Zip+4: 2548
Email:
If Attorney, Representing Party's Name: GREGG ABBOTT
Page 7 of 7
ANTHONY GOZDOWSKI #1000320 CAUSE NO. 87-12099 IN THE TWELFTH
V. APPEAL NO. 12-14-00350
T.D.C.J.-I.D.,LARRY BERGER, COURT OF APPEALS
§
MARK SANDLIN,MICHAEL ODOM,
PRESTON MAXWELL TYLER, TEXAS
C29 20ft
AFFIDAVIT OF PREVIOUS FILINGS
TYLER TEXAS
CATHY 3. LUSK, CLERK
I Anthony Gozdowski #1000320 have never file a civil suit pro-se r any court- of ahy
jurisdiction without an attorney, Except for The criminal conviction for which I am
Incarcerated, i.e.; An C.C.P. Article 11.07 in the Court of Criminal Appeals, A U.S.C.
§ 2254 In The Northern District of Texas and A Certificate of Appellability to the 5th
Circuit Court in New Orleans luisiana-
Appellant's Previous filings:
1). C.C.P. Art. 11.07 filed through the 396th Judicial Court on October 15,2003 and
Denied on August 25,2004, In Ex-parte Anthony Gozdowski. This Application was
filed due to Ineefective Assistance of Counsel, Innefective Assistance of Appeal
Counsel, Prosecutorial Misconduct and Unconstitutionally empanelled Jury. The
Application was Denied Without Written Order in writ number 58,562-01.
2). U.S.C. § 2254 was Filed on October 21,2004 and Denied on May 5,2005 In Anthony
Gozdowski v. TDCJ-ID This Application file due to Ineffective Assistance of
Trial Counsel, Ineffective Assistance of Appeal Counsel, Prosecutorial Misconduct,
and Unconstitutionally empanelled jury. The Applicant was denied without writen
order in Federal writ no. 4:04-CV-0768-A
3). Federal Certificate of Appellability was filed on June 29,2005 and denied January
12,2006 in Anthony Gozdowski v. TDCJ-ID, This COA was filed due to ineffective
Assistance of counsel, Ineffective Assistance of Appeal counsel, Prosecutorial
misconduct, and Unconstitutionally empanelled jury. The COA was denied without
writen order in COA No. 0510676.
UNSWORN DECLARATION
I Anthony Gozdowski #1000320 hereby swear and declare under penalty of purjury that
the foregoing is true and correct to the best of my knowledge.
Dated December 14,2014 Signed_ ~saec?3Zc)
ANTHONY GOZDOWSKI #1000320
Mi.Unit 2664 FM 2054
Tennessee Colony Tx. 75886
Page 1. of 1.