David De Leon v. Cherie D. De Leon ( 2015 )

ACCEPTED
03-15-00027-CV
6313485
THIRD COURT OF APPEALS
AUSTIN, TEXAS
7/31/2015 2:54:34 PM
JEFFREY D. KYLE
CLERK
NOTICE: THIS DOCUMENT CONTAINS SENSITIVE DATA
NO. 03-15-00027-CV
FILED IN
DAVID DE LEON § IN THE 3RD COURT
3rd COURT OF APPEALS
AUSTIN, TEXAS
§
v. § OFAPPEALS 7/31/2015 2:54:34 PM
JEFFREY D. KYLE
§ Clerk
CHERIE D. DELEON § AUSTIN, TEXAS
MOTION TO RECUSE THIS COURT
This Motion to Recuse this Court is brought by Appellee, who shows in
support:
1. The impartiality of this Court, Chief Justice Rose, Justice Puryear,
Justice Pemberton, Justice Goodwin, Justice Field, and Justice Bourland might
reasonably be questioned in that it allowed filing in this case of an Appellant's
brief that fails to meet any basic briefing requirements and to which Appellee is
unable to reply. A copy is attached hereto and incorporated herein by reference
as if set forth in full. This Court showed a clear and unequivocable bias for
Appellant by accepting for filing a brief that meets none of the basic requirements
as follows:
38.1 Appellant's Brief. The appellant's brief must, under appropriate headings and in the order
here indicated, contain the following:
(a) Identity ofparties and counsel. The brief must give a complete list of all parties to the trial
court's judgment or order appealed from, and the names and addresses of all trial and appellate
counsel.
(b) Table of contents . The brief must have a table of contents with references to the pages of the
brief. The table of contents must indicate the subject matter of each issue or point, or group of
issues or points.
(c) Index of authorities . The brief must have an index of authorities arranged alphabetically and
indicating the pages of the brief where the authorities are cited.
(d) Statement of the case. The brief must state concisely the nature of the case (e.g., whether it
is a suit for damages, on a note, or involving a murder prosecution), the course of proceedings,
and the trial court's disposition of the case. The statement should be supported by record
references, should seldom exceed one-half page, and should not discuss the facts.
(e) Issues presented. The brief must state concisely all issues or points presented for review.
The statement of an issue or point will be treated as covering every subsidiary question that is
fairly included.
(t) Statement offacts . The brief must state concisely and without argument the facts pertinent to
the issues or points presented. In a civil case, the court will accept as true the facts stated unless
another party contradicts them. The statement must be supported by record references.
(g) Summary of the argument. The brief must contain a succinct, clear, and accurate statement
of the arguments made in the body of the brief. This summary must not merely repeat the issues
or points presented for review.
(h) Argument . The brief must contain a clear and concise argument for the contentions made,
with appropriate citations to authorities and to the record.
(i) Prayer. The brief must contain a short conclusion that clearly states the nature ofthe relief
sought.
(j) Appendix in civil cases.
(1) Necessary contents. Unless voluminous or impracticable, the appendix must contain a copy
of:
(A) the trial court's judgment or other appealable order from which relief is sought;
(B) the jury charge and verdict, if any, or the trial court's findings of fact and conclusions oflaw,
if any; and
(C) the text of any rule, regulation, ordinance, statute, constitutional provision, or other law
(excluding case law) on which the argument is based, and the text of any contract or other
document that is central to the argument.
(2) Optional contents. The appendix may contain any other item pertinent to the issues or points
presented for review, including copies or excerpts of relevant court opinions, laws, documents on
which the suit was based, pleadings, excerpts from the reporter's record, and similar material.
Items should not be included in the appendix to attempt to avoid the page limits for the brief.
2. Appellee filed a Motion to Strike Appellant's Brief and/or Dismiss
Appeal, which this Court apparently denied by July 20, 2015, notice. Attorney
never received anything in writing from this Court. This Court rejected for filing
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Appellee's Motion three times, once for failing to contain a Certificate of
Conference (though it clearly would be irrelevant in light of the relief being sought
while the Court completely disregarded the Appellant's briefing requirements in
his brief), and then the Court rejected the motion for failing to include a filing fee
although Appellee had in the trial court filed a pauper's oath on which Attorney for
Appellee had been representing her. When Appellee counsel called Mr. Kyle,
the clerk, he said that Appellee's affidavit of indigency in the trial court was no
good in the appellate court so counsel filed a new affidavit of indigency in the
appellate court. Mr. Kyle on looking at the trial court record clearly was unaware
that Appellee was being represented on a pauper's oath, but insisted that his court
needed a new affidavit.
3. This Court cannot be fair or impartial concemmg CHERIE D.
DELEON, a party to this case, and the subject matter of this case, in that this Court
permitted filing of a pro se brief that fails to meet briefing requirements of Texas
Rules of Appellate Procedure. This Court has shown itself intending to rule for
Appellant by filing a brief to which no member of the Bar could reply in any
meaningful way.
3. This Court should recuse itself from any further consideration of this
case.
4. Judge David Puryear is believed to be specifically prejudiced against
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Attorney for Appellee in that Attorney wrote a critical letter about this court to that
judge's last re-election campaign, and he is believed to be unable to be fair in any
case involving Appellee counsel, having been involved in 3 cases since that letter,
two of which he wrote, one regarding child custody jurisdiction where a child had
never resided in Texas and which opinion was contrary to law in the UCCJEA and
Texas Family Code Chapter 152 and another which found a "Rule 11" Agreement
was a final decree of divorce. The undersigned attorney has criticized this court
for its lengthy delays in rendering decisions and its decisions being contrary to law,
and believes this Court is unable to be fair or impartial. Since this Court
accepted for filing a brief that meets no requirements, this Court is predisposed on
how it will decide this case, and this is unfair to Appellee.
5. This Court took an excessive time to deal with the motion before the
Court and has taken excessive time in this and other appeals which has resulted in
prejudice to many litigants with business before this Court.
CHERIE D. DELEON prays that the Court grant the Motion to Recuse
Court.
Respectfully submitted,
THOMAS J. BAKER, Attorney at Law
101 West FM 2410, Suite F
Harker Heights, Texas 76548
254-634-8600
254-554-6686 (telefax)
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By:
Thomas J. Baker
State Bar No. 01595700
thomasjbaker_ atty@hotmail.com
Attorney for CHERIE D. DELEON
Verification
The undersigned states under oath: "I am Movant in the foregoing Motion
to Recuse Court. I have personal knowledge of the allegations and facts stated in
it, and they are true and correct."
Affiant
JESSICA BRIDGE
My Commission Expires
April15, 2018
Verification
The undersigned states under oath: "I am Attorney for Movant in the
J1 /.y foregoing Motion to Recuse c .0<-ll':t-
.J.w.Q~ I have personal knowledge of the allegations
and facts stated in it, and they are true and correct."
J~iiJ~
Affiant f
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Certificate of Service
I certify that a true copy of the above was served on each attorney of record
or party in accordance with rule 18a(d) of the Texas Rules of Civil Procedure on
July Jl_, 2015.
Thomas J. Baker In
Attorney for CHERI D. DELEON
Certificate of Conference
I, Thomas J. Baker, hereby certify that I have not spoken by telephone with
David DeLeon regarding this motion and he has previously informed me that he is
opposed to all the relief requested.
``~/3k~'
Thomas J. Baker, ALey for Appellee
Certificate of Word Count
I certify that the above contains 1,365 words.
``B~
Thomas J. Baker I
Attorney for CHERIE DELEON
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NOTICE: THIS DOCUMENT
CONTAINS SENSITIVE DATA
NO. 03-15-00027-CV
DAVID DE LEON § IN THE 3RD COURT
§
v. § OFAPPEALS
§
CHERIE D. DELEON § AUSTIN, TEXAS
PRO BONO AFFIDAVIT OF INDIGENCY
THE STATE OF TEXAS, )
)
COUNTY OF Bell )
BEFORE ME, the undersigned authority, on this day personally appeared
CHERIE D. DELEON, Petitioner, who, being by me duly sworn, on oath stated
as follows:
"My name ts CHERIE D. DELEON. I am the Appellee m the
above-referenced cause.
"My monthly income consists of $_ _ _0_ _ _ per month.
"I am employed at ___unemployed'----' [* ___*].
"I receive child support of $_0_ _ _ _ per month.
"I receive social security payments of $___0_ __ per month.
"I receive public assistance payments of $__0_ _ __ per month.
"I receive _ _ _ _ _ _ _ of $_ _ _0_ _ _ _ per month.
"I have no other income.
"I own real estate, not including my homestead, valued at
$ 0_ _ __
"I own stocks or bonds valued at $ 0- - - - - - -
"I own other property valued at $ 0_ _ _ _ _ __
"I currently have $____0.52 _ _ _ in cash.
"I have $ 7.00_ _ _ _ _ _ _ in checking or savings accounts.
"I have one dependent( s).
"I have debts in the total sum of$_ _7670_ _ _ _ _ _ __
"I have approximately $_ _758_ _ _ _ _ in monthly expenses.
"I am represented by legal counsel at no cost to me.
"After consultation with my attorney, I believe that I have a meritorious
claim.
"I am unable to pay the court costs.
"I verify that the statements made in this affidavit are true and correct."
CHERIE D. DELEON
-=- oill
SUBSCRIBED AND SWORN TO BEFORE ME, on J Ll¥\e O' 2DIS .
,.-$-:ntr~;-... JACINTA FILO
{``!:} MY COMMISSION EXPIRES
·~:-f.'.?r.·.~$::·· May 15,2017 TARY PUBLIC, State of Texas
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FILED
April 21, 2015.
03-15-00027 -CV Third Court of Appeals
Jeffrey D. Kyle
CAUSE NUMBER: 252911 - 01 Clerk
IN THE MATTER OF § IN THE DISTRICT COURT
THE MARRIAGE OF §
§ 146™ JUDICIAL DISTRICT
CHERIE D. DE LEON §
AND §
DAVID DE LEON § BELL COUNTY, TEXAS
APPELLANT'S BRIEF
STATEMENT OF ISSUES FOR REVIEW
On the 24th of September, 2013, the case of Cherie D. De Leon and
David De Leon was heard and the following issues are issues that need to be
reviewed and corrected for the record:
A. The percentage ofMilitary Retirement Pay;
B. Ordering Respondent to make Cherie D. De Leon, ex-wife as his
Beneficiary;
C. Funds from Materials Transportation Company (MTC) Employees
Stock Ownership Plan (ESOP);
D. The Firearms that are/were registered under Respondent's name with a
List of the Firearms attached;
E. Sworn Affidavits to other Firearms/weapons;
F. A fonnu1a for Retirement Pay was adapted by the Department of
Defense and/or the Department of Finance and Accounting Service (DFAS) to
calculate the amount of percentage to do the following steps:
(1). In Respondent's case, you would take 20 years of active Military
Duty and you convert it into months which are 240 months.
(2). You take that the number of years you were married while on
active duty; in the Respondent's case, it was 4 and Y2 years which
are 54 months.
(3). You divide the 240 months of active duty by the number of
months married while on active duty - 240 divided by 54
(4). You then take the disposable income and you multiply by the
percentage- 917.82 x 4.44% equals to $40.75.
(5). According to the formula that the Department of Finance and
Accounting Service (DFAS), it shows that for Petitioner, Cheri
D. De Leon, my ex-wife is entitled to $40.75. I do not know
where Petitioner's attorney came up with the 11.25%. I am
attaching a copy of the formula DFAS uses and my pay stubs;
G. Ordering Respondent to make Petitioner, my ex-wife by Beneficiacy
upon my death for my Retirement Pay; I cannot find any law that reads
that I am supposed to do this and whether what Petitioner's attorney did
is legal or not;
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H. Disposition of funds from an account that I have never put money into
or ever taken any out. These funds are put their for their employees that
are 100% vested. It is the ESOP plan. She should be entitled to any of
these funds since I never put any money into it and is considered a gift;
and
I. ·The following pertain to Firearms that are not registered with the
Alcohol, Tobacco and Firearms (A.T.F.) but they are also registered
with the Federal Government at Fort Hood, Texas with the Military
Police. These weapons need to be recovered and returned to
Respondent, David De Leon. A List of the weapons is attached.
Conclusion
Respondent-Appellant, David De Leon respectfully asks this
Honorable Court to review the brief and attachments and consider
reversing those sections included in this brief.
avt De Leon, Pro e
2606 Nogales
Corpus Christi, Texas 7.8416
Telephone No.: (361)f7//--7/f3.L
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CERTIFICATE OF SERVICE
I, David De Leon, certify that a true copy of the Appellant's Brief was
mailed to Mr. Thomas J. Baker, Attorney at Law for Cherie D. De Leon at
208 East Central Avenue, Suite 106, Belton, Texas 76513, to Ms. Paula
King, Court Coordinator, I 46th Judicial District Court at P.O. Box 324,
Belton, Texas 76513-0324 at / O,_· 6c2/f-At on this
the-£Z day of April, 2015.
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