Greer, David AKA David Duane Greer ( 2015 )

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WRIT NO. l?,-03324-Cc!F-272-A
EX PASTE § IN THE COURT OF CRIMIDinL DISTRICT
§ 272nd JUDICIAL DISTRICT
DAVE D. CREER § PRAZQS COUNTY, TEXAS
APPLICANT'S MOTION TO RECUSE AND DISQUALIFY. THE HONORABLE JUDGE TRAVIS
E8YAN III FROM ANY AND ALL PROCEEDINGS DEALING WITH APELICASSTT'S 11.07
HABEAS CORPUS
TO THE HONORABLE^JUDGE OF SAID COURT:
COMES NOW, DAVE DUANE GREER, Applicant.herein and in support of this
motion will show this Honorable Court the f£ttlowing:
I.
Right before the jury was sworn in, during a hearing in open court,
concerning the fact that trial judge TravisBryan III, had previously
represented applicant in a criminal case as a defense attorney, His
representation (was unsuccessful) as hisrepresantaticn resulted in Applicant
being convicted. TravisBryan III stated for the record "and if either side
wants rns off the case, I'll willingly recuse itsyself..." Vol. 4 P.8L.12-13.
Applicant was of the belief that when he filed his original application of
habeas corpus 11.07 which cited numerous allegations of Unconstitutional
violations and iirproprieties of TravisSryan III himself during and before trial
even began concerning his actions andinactions by personally violating
iriandatory statutes, as well as known rules of evidence and procedures. Applicant
also alleged in grounds of errors 18-19 in his habeas application that judge
Bryan allowed the prosuctor in open court on the record to ccsrardt a bfcatant
criminal offense (Tex.P. Cede 2.0.1) (See Vol 4 Page 165 Lans. Ch. 14-15 "It does not.
have to be beyond a reasonable doubt...") which unambiguously denied Applicant
a fair trial. Additionally Applicant alleged with a supporting affidavit that
judge Bryan had extensive secret ex parte oonamanica.t.ion with the deliberating
jury. This is .in effect asking the j#dge to openly and inpartially allow
Applicant to further develop the record to provide additional evidence that
he abused his discretion, violated numerous rules, requlations and statutorally
mandated procedures. To further devel^ethe record the judge himself would be
forced to voluntarily testify against hihiself and provide additional svsorn
evidence that he.both violated all the aforementioned rights of Applicant but
why he allowed the prosecutor to tell the jury during closing areguroents that
the proof did not have to be beyond a reasonable doubt. Then recarananding that
his actions and inactions denied, applicant a fw.x trial'. Essentially Judge
Bryan is being placed in a position to set himself up to personally develop
the record to be used to verify his acts of judicial misconduct , possible
revomal from the bench, or the public beconming aware of these acts of mis
conduct lossing reelection due to lossing public trust. To say as a .drastic
understatement Judge Bryan 's impartiality is highly questioable.. 8'iso it's
now beyond controversy that jud£>e. Bryan has a crucial persional interest in
the outcome of the subject matter of this proceeding. As.such he has a
personal biasness and prejudice in influencing the put come of these proceeding.
See In re Chaves, 130 S.W.3d. .107,112 (Tex.App.-E3. Paso 2003):
"Disqualification of a judge can not be waived, even by consent of the
parties, and the issue nay be '.. >.V.'ij' raisa3 at any time. Games ]v. State,
737 S.W.2d 315 (Tex.Crim.App. 1907[ 737 S.W.2d.at 318. FOOTNOTE 2: Rule
18b(2) providesthe verious grounds for recusal, which include requiring
a judge to recuse himself in any proceeding in which, (a) his impartiality
might reasonably be questioned, and (b) he has a personal bias or prejudice
concerning the subject matter or a party, or personal knowlwdge of
disputed evidentiary facts concerning the proceeding.
The courts have further held that even Wten a judge's impartiality might
reasonably be questioned he should recuse himself. Gulf Maritime Warehouse
Co. v. Towers, 858 S.W.2d 556,558 (Te^. App.-Beaur.xjnt 1993):
"Regarding disqualification of a judge, we have two bases of consideration.
First, is TEX.CONST.art. V. §11 which states as follows: Sec. 11 No judge
shall sit in any case wherein hemay be interested;..." At 559 "Having a
pecuniary or financial interesf-ls certainly of foremost consideration.
There are other concerns however which have been addressed by Justice Spears
concerning comments in Sun Exploration and. production Co. v. JacTtson,
783 5.W. 2d 202, 206 (Tex.1989); Public policy demands that the judge who
Sits in a case act with absolute impartiality. Pendergrass v. Beale,
59 Tex.446,447 .0,883). Beyond the demand that a judge be impartial, however,
i is the requriement that a judge appear to be impartial so that no doubts
or suspicions exist as to the fairness or integrity of the court.. Aetna
Life Ins. Co. v. .Lavore, 475 U.S. 813, 106 S. Ct. 1580, 89 L. Ed. 2d 823 (19^6);
Marshall v. Jerrico, Inc., 446 U.S. 230, 100 S. Ct. 1610, 64 L. Ed. 2d. 182
(1980). The judiciary must strive not only to give all parties a fair
trial but also to maintain a high level of public trust and confidence.
Indemnity Ins. Co. v. wcGee, 163 Tex. 412, 356 S.W.2d 666, 668 (Tex. 1962).
The legitimacy of the judicial process is based upon the public's
respect and its confidence that the system settles controversies
inpartially and fairly. Judicial decisions rendered under circumstances
that suggest bias, prejuduce, or favoritism undremine the integity of the
court.'s, breed skepticism and mistrust, and thwart the very priciples on
which the judicial system isbased. The judiciary must be ejetremely
diligent in advoiding any appearance of impropriety and must hold itself
to ejtacting standards lest it lose its legitimacy and suffer a loss of
public confidence. Although the court ..."
TEX. R.CIV.PROC. RULE 18b Grounds for Recusal and Disqulification of judges:
"(a) Groundsfor Disqualifications. A. judge must disqualify in any
proceeding in. which;
(2) the judge knows that, .individually or as a fiduciary, the judge has
an interest in the subject matter in controversy; or
(3)(b) Groundsfor recusal. A judge must recuse in which:
(1) the judge's impartiality might resonably be questioned;
(2) the judge has a personal bias or prejudiceconcerning the subject
matter or party;
(3)7-," the judge has personal knowledgeof disputed evidentiary facts
concerning the proceeding:.
The judge can no more be expected to admit his own incopetency than a
a trial attorney can be expected to file a direct appeal and admitt his own
incompetecy. This is the very reason that after a trial a new and. different
attorney is appointed to to prepare and file the direct .appeal. Alsacn v. Garrison..
720 F.2d 812,816 (4th Cir.1983)("The content of an appeal is heavily controlled
foy counsel, and wher$ as here, the defendant's trial lawyer also prosected the
appeal, it isobviousthat ineffective assist;ance of counsel its not likely to
be raised at trial.or to appear among the assignments of constitutional error.").
II.
In support of Applicant'sbalief Judge Bryan willingness to recuse himself
•when placedin a questionable situation, is the VERY FIRST RULING OF THE COURT
which wasissued on July 6, 2015 Court Order that Designated"Issues of FactTo Be
Resolved." That was signed by the Honorable Kyle Hawthorn As "Presiding Judge"
which is another District Judge. Applicant naturally believed the judge Bryan
had. voluntarily recused himself because it was obviousljfrom a quick reading
of applicant's 11.07 that judge Bryan could not impartially decide whether his
own conduct violated Applicant's right to a fair trial.
III.
Judge Haw-thorn ordered Both Trial Counsel and appellant Counsel.to submit
affidavits by no later than Oct. 6, 2015. He also ordered the District Clerk'
of Brazos County to withhold preparing and transmitting the record to the Court
Criminal Appeals until further order of this court.
Just image Applicant's shock and awe, when over a month prior to the
aforementioned attorneys' affidavitsbeing received, heinstead received on
August 24, 2015 an "Order To Transmit Habeas Corpus ReoordB,.:» signed toy gravis
Bryan II?. This order wasdated Augxtst 17, 2015 which included ama^ly that
n^ovu existec
there now miraculously nH-ted no
no factual
t701 S.W.2d 921 (Tex.Crim.App. 1986); Streetman v.
Lynaugh, 812 F.2d 950,956 (5th Cir.1987); Townsend v. Sain, 83 S.ct. 745, 756
(1963). Judge Bryan's highly controvresial and obvious self serving order*.does
simply question his impartially but SCREAIELOUDLY "I'll do everthing in my
power to both cover up my illegal actions and prevent anyone else from
discovering them and developing a record providing them.
I, DAVE D. GREER TDCJ-TD #1829754, incarated in the Texas Deratment of
C riminal Justice Institutional Division at the Wayne Scott Unit, in Bf^aoria
County, Texas declar under the penalty '.) of perjury that the facts within this
motion are true and correct.
My birthday is \7^-iM> k&
EXECUTED on this o day of October, 2015..
UNDER both Federal Law 28 U.S.C. §1746 and State. Law V.A.C.CIV. PRCC. &
Rem. Code §132.001-132.003.
WHEREFORE, PREMISES CONSIDERED, Applicant prays this motion in all
things be granted, that this motion be assigned to the presiding administrative
judge, then an order be issued that Judge Eryan be disqualified and ordered
recused, also that any and all orders signed or issued by him are hereby null
and. void. Then grant Applicant any other or addittional relief he is justly
entitled to, it is so prayed.
Respectfully submitted,
Dave D. Greer #1829754
Wayne Scott Unit
6999 Retrieve Rd.
Angleton, Texas 77515
CERTIFICATE OP SERVICE
I hereby certify that a true and correct copy of this motion has been
sent to all parties in this cause by addressing a copy to: District Attorney,
r-V. Jarvis Parsons, 300(. E. 26th Street, Suite 310, Bryan, Texas 77203; The
Brazos Co. .District Clerk, E%arc Famlin, 300 E. 25th St., Suite 1200, £ryan,
Texas 77G03; The Second Adciinistrative Judicial District Presiding Judge Olen
Underwood, 301 I>T. Thompson St. Ste. 102, Conroe, Texas 77301; The Honorable
Judge Travis Bryan III, 300 E. 26th St. Ste. 204, Bryan, Texas 77803; The
District Clerk of the Court of the Criminal Appeals> Abel Acosta, Supreme
Court Bldg, 201 W.Mth St. RiTi 103, Austin, Texas 78"701-14^5, by placing
a cotv of the same in the U.S. Mail postage prepaid on this 3rd. day of
October, 2015.
Dave D. Greer'