DocketNumber： PD-1543-14
Filed Date： 1/30/2015
Status： Precedential
Modified Date： 9/29/2016
/S H 3 -M PDR Case No. PV"1543^*1- 0RIG1NA IN THE COURT OF CRIMINAL APPEALS AUSTIN, TEXAS TEX. R. APP. P. 68 RFCFnypn ^ TORfoFcipliITp"us RUSSELL JAY RE6ER JAN 2 6 2015 Petitioner, Pro Se. el Acosta, Cier? - Vs. - FILED IN COURT OF CRIMINAL APPEALS THE STATE OF TEXAS JAN 3 0 Z'.i Respondent Abel Acosta, Clerk • SSSSSSSSSSSSSSSSSSSSSSSSS'SSSSSSSS ON PETITION FOR DISCRETIONARY REVIEW FROM THE SECOND DISTRICT COURT OF APPEAL ORDER(S)- MEMORANDUM OPINION AND EN BANC RECONSIDERATION OF APPELLATE 'COURT*S PER CURIAM ORDER DATED JANUARY 30, 2014 AND SEPTEMBER 18, 2014, RELATING TO SUBSEQUENT MOTION FOR FORENSIC DNA TESTING UNDER CHAPTER 64 CODE OF CRIMINAL PROCEDURE IN APPELLATE CAUSE NOw 02-12-00178-CR ORIGINAL PETITION FOR DISCRETIONARY REVIEW — — s = = = = = = = = = = = = = = = = = = = = = = = s's = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = rjp Petitioner, Pro Se. RusselI Jay Reger #747783 French M. Robertson Unit. ORAL ARGUMENT: REQUESTED 12071 FM 3522 Abilene, Texas 79601-8749 (325)548-9035 www.free-rusty-reger.com IDENTITY OF JUDGES, PARTIES, AND COUNSEL PETITIONER, PRO SE. RusselI Jay Reger #747783 French M. Robertson Unit. 12071 FM 3522 Abilene, Texas 79601-8749 (325)548-9035 www.free-rusty-reger.com PARTICIPATING JUDGES Hon. Judge Robb D. Catalano Hon. Jerry W. Woodlock CRIMINAL DISTRICT COURT NUMBER THREE Senior Visiting District Judge 401 W. Belknap St., 7th Floor P.O. Box 659 Fort Worth, Texas 76196-0402 Gainesville, Texas 76241-0659 (817)884-1252 Hon. Roger Jeffery "Jeff" Walker Former Presiding Judge EIGHTH ADMINISTRATIVE JUDICIAL REGION 401 W. Belknap St., 5th Floor Fort Worth, Texas 76196 (817)884-1558 RESPONDENTS COUNSEL /WITH RELATIVE TO DECEDENT* Steven Waller Conder (SBOT No. 04656510)* James 0. Williams (SBOT No. 24004990) Charles Reynolds (SBOT No. 00789580) Ashley D. Fourt (SBOT No. 00792096) Charles M. Mai Iin. Appellate Section Chief Assistant District Attorneys 401 W. Belknap St., 9th Floor Fort Worth, Texas 76196-0201 (817)884-1400 www.tarrantda.com -or- www.tarrantcounty.com - I - (PDR1 TABLE OF CONTENTS sssssssssssssssasssssssssssssBsssassssscsssssssssssssss SUBJECT: PAGECS1 ================================================================================== IDENTITY OF JUDGES, PARTIES, AND COUNSEL I TABLE OF CONTENTS II INDEX OF AUTHORITIES Ill - lv STATEMENT REGARDING ORAL ARGUMENT v I. STATEMENT OF THE CASE 1-2 II. STATEMENT OF PROCEDURAL HISTORY 3 III. GROUNDS FOR REVIEW 3 -16 GROUND ONE: THE APPELLATE COURT ERRED BY FAILING TO ADEQUATELY REVIEW THE ENTIRE RECORD AND DISCERN THAT THE MARCH 13, 2012 FINAL ORDER (APPENDIX- A] SUFFERED FROM CARELESS DRAFTSMANSHIP NOT INTENDED TO RE-DENY APPOINTMENT OF COUNSEL ON DNA WHEN ALL PARTIES AND THE TRIAL COURT TREATED IT AS A FINAL APPEALABLE ORDER DENYING SUBSEQUENT MOTION FOR DNA TESTING - "OBVIOUSLY NOT INTERLOCUTORY." REASONS FOR REVIEW: 3 ARGUMENT: .. .. .. ..' .. .. 3-11 GROUND TWO: THE APPELLATE COURT ERRED WHEN FAILING TO REVIEW THE ENTIRE RECORD OR ADDRESS EVERY ISSUE AND ALTERNATIVE ARGUMENT RAISED BY THE PARTIES AND NECESSARY TO FINAL DISPOSITION OF DIRECT APPELLATE REVIEW AS REQUIRED UNDER TEX. R. APP. P. 47.1. REASONS FOR REVIEW: 12 ARGUMENT: 12 - 16 IV. PRAYER FOR RELIEF 16 V. VERIFICATION 16 VI. CERTIFICATE OF SERVICE 17 APPENDIX SECTION: APPENDIX- A: FINDINGS AND ORDER MARCH 13, 2012 [DNA2] CR i 273-274 APPENDIX- B": FINDINGS AND ORDER OF SEPTEMBER 13, 2012 IDNA2J 2nd Supp. CR 9 7-8 APPENDIX- C: MEMORANDUM OPINION OF SEPTEMBER 18, 2014 (Appellate Opinion) APPENDIX- D: LETTER / BRIEF tCONSANGUINITYl OF JANUARY 29, 2014 (Filed 02/03/14) APPENDIX- E: PER CURIAM ORDER OF JANUARY 30, 2014 [CONSANGUINITY] APPENDIX- F: PER CURIAM ORDER OF SEPTEMBER 18, 2014 [CONSANGUINITY] APPENDIX- G: ABATEMENT ORDER OF SEPTEMBER 10, 2012 [DNA2] 2nd Supp. CR 6 4-6 APPENDIX- H: ORDER DENYING MOTION FOR REHEARING [APPENDIX- CI (Dated: 10/23/14) - If - tPDR) INDEX OF AUTHORITIES ssssssssssssssssxssssssssssssssssss SUBJECT: PAGECS1 ================================================================================== CASE LAW: Ahmad v. State,158 S.W.3d 525
(Tex.App.-Fort Worth 2004) v$ . 10 Baker v. State,185 S.W.3d 894
(Tex.Crlm.App.2006) 11 Bridle v. State,16 S.W.3d 906
(Tex.App.-Fort Worth 2000) 10 Chavez v. State, 2010 Tex. App. LEXIS 6163 (Tex.App.-Fort Worth 2010) .. .. 10 Continental Airlines, Inc. v. Klefer,920 S.W.2d 274
(Tex.1996) 9 Cook v. State,240 S.W.3d 906
(Tex.Crlm.App.2007) 7 Ex parte Chabot,300 S.W.3d 768
(Tex.Crlm.App.2009) 15 Ex parte Dopps,723 S.W.2d 669
(Tex.Crlm.App.1986) 10 Ex parte Franklin, No. WR-44,521-03 (Tex.Crlm.App.2014) .. 15 Ex parte Ghahremanl,332 S.W.3d 470
(Tex.Crlm.App.2011) .. .. .. .. .. ..15 Ex parte Henderson,384 S.W.3d 833
(Tex.Crlm.App.2012) 14-15 Ex parte Mines,26 S.W.3d 910
(Tex.Crlm.App.2000) 15 Ex parte Padllla, 2010 Tex. App. LEXIS 9774 (Tex.App.-Austln 2010) .9 Ex parte Poe,751 S.W.2d 873
(Tex.Crlm.App.1988) 10 Ex parte Reger, No. WR-38,770-01 (Tex.Crlm.App.1998) 2 Fry v. State,112 S.W.3d 611
(Tex.App.-Fort Worth 2003) 10 Gamez v. State,737 S.W.2d 315
(Tex.Crlm.App.1987) .. 4 Garcia v. State,291 S.W.3d 1
(Tex.App.- Corpus Chrlstt 2008) 8 Gutierrez v. State,307 S.W.3d 318
(Tex.Crlm.App.2010) 8 ,9 ,11 Harvey v. Horan,278 F.3d 370
(4th Clr. 2002) 15 Hllburn v. State,946 S.W.2d 885
(Tex.App.-Fort Worth 1997) 10 In re Hamilton,975 S.W.2d 758
(Tex.App.-Corpus Chrlstl 1998) 10 In re Johnston,79 S.W.3d 195
(Tex.App.-Texarkana 2002) 9 In re Morton,326 S.W.3d 634
(Tex.App.-Austln 2010) 9 Jenerette v. State, 2013 Tex. App. LEXIS 7284 (Tex.App.-Fort Worth 2013) .. ..10 Kombuto v. State,171 S.W.3d 888
(Tex.Crlm.App.2005) .. .. .. ..15 Kutzner v. Montgomery, Co.,303 F.3d 339
(5th Clr. 2002) .. 15 Lehmann v. Har-Con Corp.,39 S.W.3d 191
(Tex.2001) 6 ,8 ,9 Light v. State,15 S.W.3d 104
(Tex.Crlm.App.2000) 15 M.0. Dental Lab v. Rape,139 S.W.3d 671
(Tex.2004) 6 ,8 Montanez v. State,195 S.W.3d 101
(Tex.Crlm.App.2006) 8 Pitts v. State,916 S.W.2d 507
(Tex.Crlm.App.1996) 14 Prleto Ball Bonds v. State,994 S.W.2d 316
(Tex.App.-El Paso 1999) 13 Rape v. M.0. Dental Lab,95 S.W.3d 712
(Tex.App.-Fort Worth 2003) 6 Reger v. State, No. 02-96-00217-CR (Tex.App.-Fort Worth 1997, pet. ref'd) .. ..2 Reger v. State,222 S.W.3d 510
(Tex.App.-Fort Worth 2007, pet. ref'd) .. ..2 ,15 Reger v. Crlm. Dlst. Atty Tarrant Cnty., 2011 Tex. App. LEXIS 6413 (Tex.App.-Rrt Worth 2011) ..14 Rey v. State,897 S.W.2d 333
(Tex.Crlm.App.1995) 8 Skinner v. Swltzer, _ U.S. ,131 S. Ct. 1289
(2011) 15 State v. Masslngham, 2012 Tex. App. LEXIS 84 (Tex.App.-AmarlIlo 2007) 9 Strobaugh v. State,421 S.W.3d 787
(Tex.App.-Fort Worth 2014) 16 Suhre v. State,185 S.W.3d 898
(Tex.Crlm.App.2006) 11 Towery v. State,262 S.W.3d 586
(Tex.App.-Texarkana 2008) 8 United States v. Hale,422 U.S. 171
(1975) 14 -HI - tPDRl INDEX OF AUTHORITIES (Com't) sssssssxssasssssaBSissassssssssssssssssssssBssissssssssBSssssssssssssss SUBJECT: PAGE(S) STATUTES - CODES - RULES: Tex. Civ. Prac. & Rem. Code $ 132.OO1-.O03 et seq, 16 Tex. Code Crlm Proc. Chapter 64 2 ,5 ,6 ,7 Tex. Code Crlm. Proc. art. 64.01 .. .. .. .. .. .. .. .. .. .. .. ..8 Tex. Code Crlm. Proc. art. 64.03 6,9 Tex. Code Crlm. Proc. art. 64.03(b) 15 Tex. Code Crlm. Proc. art. 64.03(a)(1)(B) 15 Tex. Gov't Code $ 74.055 13 Tex. Gov't Code $ 74.055(c)(6) 13 Tex. Gov't Code 5 74.0551(d) 13 Tex. Gov't Code 5$ 573.021-.023 4 Tex. R. App. P. 21.8(a), (c) 7 Tex. R. App. P. 22.4 7 Tex. R. App. P. 25.2(a)(2) 8 Tex. R. App. P. 25.2(d)-(h) 7 Tex. R. App. P. 27.1(b) 7 Tex. R. App. P. 33.1(a)(2)(A) 8 Tex. R. App. P. 44.4 10 Tex. R. App. P. 47.1 .. 11 ,12 ,15-16 Tex. R. App. P. 66.3 1 ,3 ,12 Tex. R. App. P. 66.4 11 ,16 Tex. R. App. P. 68 Cover ,1 Tex. R. App. P. 68.11 17 Tex. R. App. P. 69.1 1 ,11 ,16 Tex. R. App. P. 69.2 11 ,16 Title 28 U.S.C. § 1746 .. 16 CONSTITUTIONAL LAW: Tex. Const, art. V, $ 7 13 Tex. Const, art. XVI, § 1 13 Tex. Const, art. XVI, $ 30(a) 13 U.S. Const, art. VI, Clause 3 13 TREATISE - LAW JOURNALS - LAW REVIEWS: 5 Ray W. McDonald, TEXAS CIVIL PRACTICE § 27:4[a], at 7 (John S. Covell, 1992) ..9 ================================================================================== END: - Iv - CPDR] STATEMENT REGARDING ORAL ARGUMENT S3t = = = = = = S This case presents numerous ISSUES (GROUNDS) which are novel and unresolved by any Court In Texas, to date. The resulting exoneration of the Petitioner and the total exposure of the underlying miscarriage of justice resulting in the Petitioner's wrongful conviction for first degree murder shall dwarf the recent firestorm stemming from the Michael Morton exoneration. As such, the Petitioner respectfully begs this most Honorable Court to permit ORAL ARGUMENT by and through competent court appointed counsel. ORAL ARGUMENT: REQUESTED - v - IPDR] IN THE COURT OF CRIMINAL APPEALS AUSTIN, TEXAS RUSSELL JAY REGER PDR Case No. ?P'/S¥$-J222 S.W.3d 510The Petitioner was wrongfully convicted for the offense of first degree murder and thereafter sentenced to life confinement In the TDCJ-CID. [Trial] RR-6 • 474 1 and [Trial] CR • 83, 103-104. 2 At all times, the Petitioner strong ly swore that he was /Is NOT GUILTY BY REASON OF SELF-DEFENSE (I.e., legally and factually Innocent of first degree murder). [Trial! RR-3 f 7-8; RR^4 • 2; ,„...« i «» - «*•» **-. 3 ,«„.,, ob . crt ,. 4 [DNA2] CR f 61, 76; and see also [DNA1] CR • 243-247;17; [DNA1] RR • 50-64; 6 [DNA2] RR-3 • 20, It 5-23. [11> "[Trial! RR- f" denotes the original 1996 criminal 1rlal Out Reporter's Record on flle in appellate case N>. 02-96-00217-CR, followed by vited Volumes), Page NuofaeKs), and (1) denotes Individual I lne(s) of text. [2]> "[Trial] CR- «" denotes the original 1996 criminal trial Court Clerk's Record also on file inside appellate case No. 02-9S-03217-CR,_fol lowed by referenced Page(s). [FOOTNOTES CON'T ON PAGE 2) Page 1 [PDR] (B)> The Petitioner sought direct appellate review of his wrongful conviction which was thereafter affirmed. Reger v. State, No. 02-96-00217-CR (Tex.App.- Fort Worth 1997, pet. ref'd). (C)> The Petitioner filed original application for writ of habeas corpus, which was denied by this Court. Ex parte Reger, No. WR-38,770-01 (Tex.Crlm.App. 1998). (D)> The Petitioner filed original Chapter 64 DNA testing of biological evidence on the shorts he wore - trying to prove that a violent, close contact struggle occurred between htm and the decedent, proving self-defense. That motion was denied and direct appellate review affirmed. Reger v. State,
(Tex. App.-Fort Worth 2007, pet. ref'd). Cert, denied,552 U.S. 1117
(2008).
(E)> After acquiring three (3) sworn pro bono expert reports which focused upon
biological evidence documented and recovered from the decedent's vehicle, all
concluding that Respondent's star-witness gave material, false and misleading
sworn testimony to Petitioner's 1996 jury, as well as due to substantial changes
In case precedent and statutory law, Petltionewr filed subsequent Chapter 64
DNA testing to coerborate his pro bono expert reports. The trial Court denied
subsequent DNA testing motion without a hearing on March 13, 2012 and September
13, 2012. [DNA21 CR • 61-134, 264-274; and 2nd Supp. CR • 7-8 [Attached hereto-
with as: APPENDIXES- A and B].
[CON'T FROM PA6E 11
(31> "[CNA1] OR- •" denotes the original Chapter 64DNA trial Cbirt Clerk's Record on fi le in ap
pellate case No. Q2-06-00104-CR, followed by RageCs). The two Supplemental Clerk's Records
are cited as "1st Supp. CR- «" or *2nd Supp. CR- §".
C41> "[GNA1] RR- f" denotes the original Chapter 64 BNA ABATEMENT HEARIN5 RECCRD on file In ap
pellate case No. 02-05-091C4-CR, followed by Pagets) and (t) denotes individual Hne(s)of
text. Said record is already on file in this Subsequent DNA Clerk's Record at (DNA21 CR •
145-171.
15]> "[DNA21 CR «" denotes -the Subsequent Chapter 64 BNA trial Court Clerk's Record on file In
appellate case No. 02-12-00178-CR, followed by PageCs). The three Supplenental Clerk's Records
are cited as "1st Supp. Cr t" or "2nd Supp. CRf" and/or "3rd Supp. CR f".
[61> "(DNA21 RR- 9 " denotes the Subsequent ehapter 64 DNA RECUSAL RECORDS on file In appellate
case No. O2-120O178-CR, foloved by cited Voltnefs),Page(s) and (f) denotes individual lines
of text.
Page 2 [PDR]
II.
STATEMENT OF PROCEDURAL HISTORY
The Petitioner filed for direct appellate review of the trial Court's final
order(s) denying Subsequent DNA testing described above in Section 1(E), which
was DISMISSED In part and AFFIRMED In part In MEMORANDUM OPINION dated September
18, 2014. APPENDIX- C, attached hereto. On October 2, 2014, Petitioner properly
filed MOTION FOR REHEARING ("MFRMO") which the appellate Court denied on October
23, 2014. APPENDIX- H, attached hereto.
III.
GROUNDS FOR REVIEW
GROUND ONE:
THE APPELLATE COURT ERRED BYFAILING TO ADEQUATELY REVIEW THE ENTIRE
RECORD AND DISCERN THAT THE MARCH 13, 2012 FINAL ORDER [APPENDIX-
At SUFFERED FROM CARELESS DRAFTSMANSHIP NOT INTENDED TO RE-DENY
APPOINTMENT OF COUNSEL ON DNA WHEN ALL PARTIES AND THE TRIAL COURT
TREATED IT AS A FINAL1 APPEALABLE ORDER DENYING SUBSEQUENT MOTION
FOR DNA TESTING ^"OBVIOUSLY NOT INTERLOCUTORY." [DNA21 CR i 38-
43; 44-49; 61-135; 223-229; 230-236; 264-274; 275; 282; 284; 285-
300; 301-315; 316; 317-320; 321-323; 324-327; 341; 343-344; 345;
350; 351-352; 353; 359-360; 361; 366-369; 370; 371-372; 375-376;
380; 387-394; 395M00; 1st Supp. CR 0 4; 2nd Supp. CR 0 4-6 and
7-8; [DNA2] RR-3 0 21, If 21-25; 22, It 3-6; and [DNA21 RR-4 0 7,
11 14-16; 23, 11 23-25; and 24, 11 1-2.
REASONS FOR REVIEW:
The Second District Court of Appeals' decision [APPENDIX- C] con
flicts with another case reversal stemming from other Courts of
appeal on the same issue presented in GROUND ONE (above). It has
also decided an important question of State or Federal law in a
way that conflicts with applicable decisions of this Court, the
Supreme Courts of Texas and the United States of America. It also
appears to have misconstrued a statute and rule, as we11 as has
so far departed from the accepted and usual course of judicial pro
ceedings as to call for an exercise of this most Honorable Court's
power of supervision. TEX. R. APP. P. 66.3(a), (b), (c), (d), and
(f).
ARGUMENT:
(A)> The Petitioner filed two pro se ancillary motions requesting appointment
of "Co-Counsel" on February 8, 2012. IDNA21 CR 0 38-43 and 44-49. Petitioner
Page 3 (PDR)
informed the trial Court that he filed SUBSEQUENT MOTION FOR DNA TESTING, which
occurred on February 10, 2012. [DNA2] CR 0 61-135. The Respondent then filed
responses opposing said motions for appointment of "Co-Counsel." [DNA2] CR 0
223-228 and 230-235. The trial Court DENIED Petitioner's motions for appointment
of "Co-Counsel" on February 16, 2012. [DNA2] CR 0 229 and 236.
(B)> Only two of Petitioner's pleadings then remained active on docket: (1)
SUBSEQUENT MOTION FOR FORENSIC DNA TESTING OF EVIDENCE CONTAINING BIOLOGICAL
MATERIAL [DNA2] CR 0 61-135; and (2) PETITION TO DISQUALIFY THE TARRANT COUNTY
CRIMINAL DISTRICT ATTORNEY AND HIS OFFICE AND REQUEST FOR APPOINTMENT OF ATTORNEY
PRO -TEM - DEMAND FOR JURY TRIAL ("PTD") IDNA2] CR 0 136-213. The Respondent
(ADA Steven Waller Conder [SBOT #046565101) seemed confused about Petitioner's
Pro Se filings, yet admitted to figuring it out and filing opposing responses
to DENY Subsequent DNA Testing Motion and [PTD] on March 13, 2012. [DNA2] CR
0 254-262, 264-272 and 388. On March 13, 2012, disqualified visiting District
Judge Jerry W. Woodlock signed final order(s) denying those two pending pleadings.
[DNA2] CR 0 263 and 273-274.
(C)> Going Into the direct appellate record in this case, the established record
clearly portrays that the trial Court and ALL related parties believed that Judge
Woodlock signed final appealable order denying Subsequent DNA Testing Motion
on March 13, 2012. May this Court TAKE JUDICIAL NOTICE of the reeord:
(7)> As this case continued on appeal, Petitioner discovered that ADA Wal ler-Qonder was a consan
guineous relative to the decedent's biological mother: Doris Jean Waller-Storey. The decedent,
William Matthew ffett* Storey was born on March 13, 1969. Plnahtbited Inside information was
provided to Mrs. Waller-Storey, which she acknowledged having possession of, memorialized
In this record. This caused Petitioner to seek recusal of sitting trial Judge, Robb D. Cata-
lano. [CNA2] CR 0 285-330; 373; 374; 375-434; 1st Supp. CR 0 4; [0NA2] RR-1 2, and 3. After
connecting the dots and evidence finding "The Waller Oonneetion" Petitioner filed in the
appellate court: MOTION TO DISQUALIFY AND STRIKE PLEADINGS GF ADA WAJLER-COMER on January
10, 2014. Further tetter /brief filed February 3, 2014 APPENDIX- D, attached hereto. ADA
Wal ler-Conder filed no response, nor did he ever dispute Petitioner's facts. The appellate
court failed to ABATE and hold hearings under Section 573.021-.023 TEX. GOV'T CODE denying
Petitioner's motion on January 30, 2014 APPENDIX- E. Petitioner filed for En Banc Reconsidera
tion on February 10, 2014, which the Appel late Court denied on Septenfeer 18, 2014. APPENDIX-
F. This most Honorable Court should ABATE this case back for hearings consistent with its
prior holdings under Gaaez v. State, 737 S.W.3d 315, 318 (Tex.Crim.App.1987). Page 4 [PDR] 1» DNA2J CR 0 275 - Letter from trial Court to Appellant; 2» 0NA2J CR 0 282 - Notice of Appeal; 3» DNA2] CR 0 284 - Certificate of Proceedings by trial Court; 4)> DNA2] CR 0 286 - Motion to Recuse / Disqualify; 5» DNA2J CR 0 306-308; 309 and 310 - Motion for New Trial; 6)> DNA2] CR 0 316 - Cover-Letter by Petitioner; 7)> [DNA21 CR 0 317 - Petitioner's Objections; 8» 0NA21 CR 0 321 - Petitioner's Objections; 9» DNA2] CR 0 324 - Petitioner's Objections; 10» DNA2] CR 0 341 - Notice of Appeal; 11» DNA2] CR 0 343 - Motion for New Trial Addendum; 12)> DNA2] CR 0 345 - Cover-Letter to Oulda Stevens; 13» DNA21 CR 0 350 - Letter from Petitioner to Judge Woodlock; 14» DNA21 CR 0 353 - Cover-Letter to Clerk Debra Splsak; 15)> DNA2] CR 0 361 - Amended Notice of Appeal; 16» DNA2] CR 0 366 - Request For Designation of Clerk's Record #5; 17» DNA2] CR 0 370 - Request For Designation of Court Reporter's Record; 18)> DNA2) CR 0 375-376 - Subpoena Duces Tecum; 19)> DNA2] CR 0 380 - Subpoena Duces Tecum; 20» DNA2] CR 0 388 - Motion to Quash Subpoena; 21)> DNA2] CR 0 395 - Motion to Quash Subpoena; 22» DNA2] CR 0 400 - Subpoena Duces Tecum; 23» DNA21 2nd Supp. CR 0 4-6 ABATEMENT ORDER [APPENDIX- G, hereto]; 24 )> DNA2] RR-3 0 21, 11 21-25 and 22, 11 3-6 - RECUSAL HEARING; 25 » DNA2] RR-4 0 7, 11 14-16; 23, 11 23-25 and 24, 11 1-2 - RECUSAL HEARING; 26)> MFA11 0 Page 2, POINT OF ERROR ONE: (A) - MOTION FOR REHEARING of #23; 27» MTA21 0 Page 2, Sections CIIKA) and (C) - SECOND MOTION TO ABATE; 28)> ABM] 0 Pages 4(4a); 7 (9a); 12 (c[1l); 13 (2a); 22 (7c) and 27 (5a) Inside APPELLANT'S BRIEF ON THE MERITS; 29» ASB] 0 Pages 2-4; 10-12; 14-15; and 24 - STATE'S REPLY BRIEF; and 50» ARB] 0 Page 6 (7c [MID - APPELLANT'S REPLY BRIEF ON TYHE MERITS. Despite the Appellate Court's questioning of Its jurisdiction [DNA2] CR 0 359- 360 and 371 - at NO TIME did anyone, ever claim that Judge Woodlock's order of March 13; 2012 - was "interlocutory", nor did the appellate Court dismiss for want of jurisdiction based upon entry of an Interlocutory order denying appoint ment of counsel in a Chapter 64 DNA proceeding. (D)> After having the established record filed and submitted 17 1/2 months, on September 18, 2014, the appellate Court then handed down its MEMORANDUM OPINION [APPENDIX- CI and at Pages 3-5 declared that Judge Woodlock signed an Interlocu tory order denying appointment of DNA counsel on March 13, 2012. Judge Anne Gardner was the author of APPENDIX- C. She disregarded the record as a whole and the conduct of the parties In the very exact same manner which got a prior Page 5 [PDR] opinion issued by her REVERSED AND REMANDED in the Supreme Court of Texas. See, e.g., and TAKE JUDICAIL NOTICE: Rape V. M.0. DentaI Lab, 95.~S.W-.3d 712 (Tex.App.- Fort Worth 2003, pet. granted), REVERSED AND REMANDED,139 S.W.3d 671
(Tex.2004) (discussing Lehmann v. Har-Con Corp..39 S.W.3d 191
, 195, 200, and 206 (Tex.2001)). (E)> Once again, at Its very core, the etsbIIahed appellate record exhibits on March 13, 2012 - only two pleadings sat active on the trial Court's docket. Neither had anything remotely to do with any request for appointment of DNA coun sel. Respondent ADA Waller-Conder rushed to finish up and file his responses with proposed orders, on March 13, 2012, because that was his family member's blrthdate (I.e., the decedent in this case). See: STATE'S REPLY TO DEFENDANT'S SUBSEQUENT MOTION FOR FORENSIC DNA TESTING [DNA2] CR 0 264-272. This pleading urged Judge Woodlock to DENY Subsequent request for DNA testing because Petitioner allegedly failed to meet his burden under Article 64.03 in the Code of Criminal Procedure [DNA2] CR 0 266. It also PRAYED Judge Woodlock to DENY the Subsequent Motion for Post-Conviction Forensic DNA testing [DNA2] CR 0 270. This Court must presume that Judge Woodlock reviewed these pleadings and replies before signing final appealable order. (F)> After reviewing everything discussed above in (E), Judge Woodlock then signed off on the Respondent's proposed order [APPENDIX- A] fully intending to DENY Subsequent DNA Testing Motion. However, that poorly drafted order In [APPENDIX- A] started off: FINDINGS |f The defendant admitted to the jury that he shot William Matthew Storey four times. 2. The defendant admitted In his original DNA testing request that he shot Wi11iam Matthew Storey four times. 3. The defendant's Identity as the perpetrator of this murder is not at issue. 4. The defendant has not met the requirements for post-conviction forensic DNA testing under Chapter 64 of the Code of Criminal Procedure. which tracked the Respondent's reply and language under Art. 64.03 C. Cr. P. Page 6 [PDR] However, the poorly drafted "ORDER" portion was overlooked by Judge Woodlock and Respondent Waller-Conder, because It misread: ORDER 1. The Court denies the defendant's request for appointment of counsel to represent him on a Subsequent Motion for Post-ConvictIon Torensic DNA tes ting. —• • . (Emphasis underlined mine). It Is those eight (8) underlined, unintended errant words which are now contested by the parties. Compared next to the Appellate Court's ABATEMENT ORDER [DNA2] 2nd Supp. CR 0 5 [APPENDIX- G at 21, where It acknowledged this very same order signed March 13, 2012 - noting that no Motion for Appointment of Counsel was pending on the record, on September 18, 2014 it then handed down opinion [APPENDIX- C] and at Page 3 erroneously found: [0]n March 13, 2012, the Honorable Jerry Woodlock, ..., signed an order proposed by the State, which included a finding [#3] that Appellant's Identity as the perpetrator was not an issue ... Yet somehow omitted FINDING #4, which cemented what the ORDER had been Intended to be: [Tlhe defendant has not met the requirements for post-conviction forensic DNA testing under Chapter 64 of the Code of Criminal Pro cedure ...ID. [DNA2] CR
0 273 and APPENDIX- A; because It then erroneously concluded: [B]ut the order Itself re-denied the appointment of counsel; it did not deny the Subsequent Motion for DNA testing ...Id. APPENDIX- C
at 3. Going Into Page 4 of APPENDIX- C, the Court then errone ously concluded that Judge Woodlock's order was Interlocutory and reasoned that the Petitioner's Notice of Appeal had been prematurely filed (TEX. R. APP. P. 27.1(b))- but then remained silent on how that would have affected the mandatory requirements under TEX. R. APP. P. 25.2(d)-(h) or Petitioner's Motion For New Trial deadlines under TEX. R. APP. P. 21.8(a), (c) and 22.4 moreso, when the Court stood on the new September 13, 2012 Order APPENDIX- 6 being the final order? 181 > This Court has already held such tine-frames to be a •Oltlcal Stage." See, e.g.. Cook v. State,240 S.W.3d 906
, 908-S12 (Tex.Crim.App.2007). Page 7 (PDRI (G)> In Gutierrez v. State, he only filed a motion seeking appointment of DNA counsel pursuant to Art. 64.01 C. Cr. P., and attempted to appeal the trial Court denial of that order. Id.307 S.W.3d 318
(Tex.Crlm.App.2010). This Court conclud- edand held that the decision to deny appointment of counsel is not an "appealable order" under TEX. R. APP. P. 25.2(a)(2).Id. at 323.
However, the Instant case Is distinguishable from Gutierrez because this record ONLY exhibits Petitioner's Subsequent Motion for DNA testing pending. [DNA2] CR # 61-135. The ONLY thing Respondent requested was for the court to DENY that motion. [DNA2] CR 0 264-272. While Respondent's ORDER was poorly drafted. Judge Woodlock nevertheless made an implicit ruling [TEX. R. APP. P. 33.1(a)(2)(A)] DENYING the Petitioner's Sub sequent Motion for DNA testing. [DNA2] CR 0 273-274 APPENDIX- A.Indeed, this Court has long held that "A trial Court's ruling on a matter need not be expressly stated if its actions or other statements otherwise unquestionably indicate a ruling." Rey v. State,897 S.W.2d 333
, 336 (Tex.Crlm.App.1995); see also Martanez v. State,195 S.W.3d 101
, 104 (Tex.Crlm.App.2006); Garcia v. State,291 S.W.3d 1
(Tex.App.-Corpus Christ! 2008); Towery v. State,262 S.W.3d 586
, 597-98 (Tex.App.- Texarkana 2008). (H)> Because this case Involves a novel issue not yet resolved by the Court, the Petitioner would urge It to also apply the very same reasoning used in the Supreme Court of Texas'/' in Lehmann, Supra, when it REVERSED Judge Anne Gardner in M.0. Dental Lab v. Rape,139 S.W.3d 671
, 674-75 n. 16 (Tex.2004). In Lehmann, the Court held that the record "IItuminlates] whether an order ... that all part ies appear to have treated as final may be final despite some vagueness in the order Itself."Id. 39 S.W.3d
at 206. If further held "Because the law does not require that a final judgment be in any particular form, whether a judicial decree is final judgment must be determined from its language and the record in the case".Id. at 195,
because "the language of an order or judgment cannot make It Interlocutory when In fact, on the record, It Is a final disposition of the case." Page 8 [PDR] Id at 200. Therefore, it need not even have the word "Final" In the order.Id. See also
Continental Airlines, INc. v. Klefer,920 S.W.2d 274
, 277 (Tex.1996) (holding that finality "must be resolved by a determination of the intention of the Court as gathered from the language of the decree and the record as a whole, aided on occasion by the conduct of the parties."Kquotlng: 5 Ray W. Mc Donald, TEXAS CIVIL PRACTICE S 27:4[a], at 7 (John S. Covell, 1992 ed))).ln the case of State v. MassIngham, No. 07-11-00482-CR, 2012 Tex.App.LEXIS 84 *1 (Tex. App.-Amarillo 2012, no pet.HNot Designated for Publication) the Court employed both of this Court's holdings in Gutierrez, Supra; and the Lehmann, Supra, holding when it decided an Interlocutory order Issue on appeal). (I)> The Illuminated appellate record in this case, detailed above in (B), (C), and (E) as well as the conduct of the Court and Parties below- all scream that Judge Woodlock's March 13, 2012 order (APPENDIX- A] was.and was Intended to be an Implicit ruling acting as a final appealable order denying Subsequent Motion for DNA testln under Art. 64.03 C. Cr. P. Thus, "Obviously not Interlocutory.." See e.g.. In re Morton,326 S.W.3d 634
, 639 (Tex.App.-Austln 2010)(fIndtng denial of Motion for Testing to be appealable order when it is "obviously not interlo cutory. ")( quoting: In re Johnston,79 S.W.3d 195
, 197 (Tex.App.- Texarkana 2002,
Orig. Proceeding)). Nowhere In this record will this Court ever find anything
filed by the trial Court alerting the appellate Court otherwise. See, e.g., Ex
parte Padilla, No. 03-10-00667-CR, 2010 Tex.App.LEXIS 9774 *1 (Tex.App.-Austln
2010, pet ref'd)(Not Designated for Pub Meat lonHfinding that "(t]he district
court ... entered a Certificate providing that this [was! 'not an appealable
order, and the defendant ha[d] no right of appeal.' We agree."). Had the Second
District Court of Appeals firmly believed that Judge Woodlock's March 13, 2012
order [DNA2] CR 0 273-274 [APPENDIX^ A] was 5n fact an interlocutory order denying
appointment of DNA counsel, it would have surely followed Its long held precedence
Page 9 [PDR]
and DISMISSED this appeal for want of jurisdiction, which is what they (and Judge
9
Gardner) did in a long line of cases.
(J)> Instead, finding no "obvious Interlocutory order", the appeI late court
used APPELLANT'S MOTION FOR LEAVE TO ABATE APPEAL TO TRIAL COURT AND PRESERVE
THE APPELLATE RECORD ("MTA"), filed by the Petitioner on June 27, 2012, which
had nothing to do with the March 13, 2012 order [APPENDIX-A], as a defacto nunc
pro tunc request to correct a remediable clerical error, when It thereafter issued
ABATEMENT ORDER on September 10, 2012. [DNA2] 2nd Supp. CR 0 4-6 [APPENDIX- G].
The Court invoked TEX. R. APP. P. 44.4 [APPENDIX- G at 2] conceding the March
13, 2012 Order was a dimple clerical error. See, e.g., TEX. R. APP. P. 44.4(a)(1)
and (2). Thus, after the trial Court corrected said error in its September 13,
2012 Order [DNA2] Supp. Cr 0 7-8 [APPENDIX- B], "ITJhe Court of appeals ... then
proceed[ed] as If the erroneous action or failure to act had not occurred."
See, e.g., TEX. R. APP. P. 44.4(b); see also [DNA2] 2nd Supp. CR 0 6 [APPENDIX-
G at 3]. Thus, the ABATEMENT ORDER acted as a clarification order which is analo
gous to a judgment nunc pro tunc because it did not substantively change Judge
Woodlock's final appealable order of March 13, 2012. See, e.g.. In re Hamilton,
975 S.W.2d 758, 762 (Tex.App.-Corpus Chrlstl 1998, pet. denied); Compare: [DNA2] CR 0 273-274 [APPENDIX- A] -next to- [DNA2] 2nd Sup. CR 0 7-8 (APPENDIX- 61. Because the entry of Judge Woodlock's March 13, 2012 order was a clerical error, because it did not come about as the product of his judicial reasoning or determi nation, but due to the Respondent's poor draftsmanship. It was subject to being corrected by entry of nunc pro tunc. Ex parte Poe,751 S.W.2d 873
, 876 (Tex.Crlm. App.1988); Ex parte Bopps,723 S.W.2d 669
, 670 (Tex.Crlm.App.1986). [91> Ahftsd v. State,158 S.W.3d 525
, 526 (Tex.App.-Fbrt Worth 2004)(69rdner, J.); Fryv. State,112 S.W.3d 611
, 412-13 (Tex.App.-fcrt Worth 2003); Bridle v. State,16 S.W.3d 906
, 907-08 (Tex.App. Fort Worth 2000); Hilburnv. State,946 S.W.2d 885
, 896 (Tex.App.-Fort Worth 1997); see also Jenerette v. State, No. O2-13-00092-CR, 2013 Tex.App.LEXIS 7284 (Tex.App.-Fort Worth 2013 (Gardner, J.);"Chavez v. State, No. O2-1O-0O250-CR, 2010 Tex.App.LEXIS 6163 (Tex.App.-Fcrt Worth 2010)(Gardner, J.XNot Designated for Publication) all DISMISSED FOR WANT OF JURISDICTION. Page 10 [PDR] (K)> The Petitioner Is cognizant of this Court's prior holdings that "there Is no limit to the number of requests for appointed counsel that a convicted person may make" - Gultlerrez,Supra, 307 S.W.3d at 323
; or for that matter "In a DNA [testing] proceeding" - Baker v. State,185 S.W.3d 894
(Tex.Crlm.App.2006); Suhre v. State,185 S.W.3d 898
(Tex.Crlm.App.2006). However, this Is not an ironclad reason for this Court to find no harm under this GROUND ONE, because, should this Court agree that Judge Woodlock's March 13, 2012 order [APPENDIX- A] was not an obvious Interlocutory order - then Petitioner's FIRST ISSUE raised In the appellate Court still stands unresolved. That Issue contended: BECAUSE THE TRIAL COURT LOST ITS PLENARY POWER JURISDICTION ON: MAY 29, 2012 (OR APRIL 12, 20121, ALL SUBSEQUENT ORDERS AND PROCEED INGS PERFORMED AFTERWARDS WERE VOID, AB INITIO.Id. [ABM] at
3-17; [ARB] at 1-7. The appellate Court did not reach those merits. (APPENDIX- C at 4-5]. Respondent Wa11er-Conder did not address those merits. Instead he argued "MOTION FOR NEW TRIAL NOT APPLICABLE IN DNA REQUEST ..." [ASB] at 10-12 and letter brief dated February 28, 2013. That alternative argument wasn't addressed. TEX. R. APP. P. 47.1. As such. If the trial Court lost its plenary power on May 29, 2012 or April 12, 2012, as MOTION FOR NEW TRIAL overruled by operation of law before the MOTION FOR RECUSAL / DISQUALIFICATION was finally decided IDNA2] 1st Supp. CR 0 4 - then Judge Catalano's order signed September 13, 2012 IDNA2] 2nd Supp. CR 0 7-8 [APPENDIX - B] Is VOID, ab Initio. Such would quash any jursidlction In this Court or ttie appellate Qovrt, tele** rendering the September 18, 2014 MEMORANDUM OPINION [APPENDIX- CI VOID, «h tnttttn PSP fhe-Se- tiftdisputed reasons, this Court should ORBtR the. @l&*fc of the 2nd Court of Appeals to promptly send this Court all items necessary to aid it in deciding whether to grant discretionary review, TEX. R. APP. P. 66.4(a), then GRANT this petition further setting this case for submission and briefing under TEX. R. APP. P. 69.1 and 69.2. Page 11 (PDR) GROUND TWO: THE APPELLATE COURT ERRED WHEN FAILING TO REVIEW THE ENTIRE RECORD OR ADDRESS EVERY ISSUE AND ALTERNATIVE ARGUMENT RAISED BY THE PARTIES AND NECESSARY TO FINAL DISPOSITION OF DIRECT APPELLATE REVIEW AS REQUIRED UNDER TEX. R. APP. P. 47.1. [DNA2] CR 0 38-43; 44-49; 50- 60; 61-135; 136-213; 223-229; 230-236; 237-247; 254-263; 264-274; 275; 284; 285-300; 301-315; 316; 317-320; 321-323; 324-327; 328- 338; 339; 341; 343-352; 353; 356-358; 359-360; 361; 362-364; 366; 370; 371-372; 373; 374; 375-376; 380; 387-394; 395-400; 403-404; 429-432; 1st Supp. CR 0 4; 2nd Supp. CR 0 4-6 and 7-8; [DNA2] RR- 3 and RR-4. REASONS FOR REVIEW: The Second district Court of Appeals' decision (APPENDIX- C] con flicts with another case reversal stemming from other Courts of appeal on the same Issues presented In GROUND TWO (above). It has also decided an important question of State of Federal law in a way that conflicts with applicable decisions of this Court and the Supreme Courts of Texas and theUnited States of America. It also appears to have misconstrued statutes and rules, as well as has so far departed from the accepted and usual course of judicial pro- * ceedlngs as to call for an exercise of this most Honorable Court's power of puervlslon. TEX. R. APP. P. 66.3(a), (b), (c), (d), and ARGUMENT: (A» The Petitioner's "FIRST ISSUE" In [ABM] dealt with postfInal appealable or ders and actions triggered after Judge Woodlock signed the March 13, 2012 order denying Subsequent DNA testing motion. (APPENDIX - A]. See. [ABM] at Pages 3-13. As was already addressed above In GROUND ONE, the appeI late Court neglected to reach the merits of this ISSUE. Nor did the Court address Respondent's alterna tive argument that "Motions for New Trial and their deadlines do not apply to post-conviction DNA requests."Id. [ASB] at
10-14, which Petitioner countered In his [ARB] at 1-7. The Court also failed to review the entire record. (B)> The Petitioner's "SECOND ISSUE" In [ABM] dealt with the qualifications and authority of Judges Catalano and Woodlock.Id. at 13-24.
With regard to Cata lano, the appellate Court never addressed that he "self-recused". Compare: [AP PENDIX- C at 5-7] -next to- [ABM] at 16. Nor did It address "the appearances of Impropriety by JUdge Catalano." [ABM] at 16-21 [APPENDIX- C at 5-71. Nor did Page 12 (PDR) It address Respondent's contention that letters attached to Petitioner's [ABM] could not be considered at 26-29 - compared next to- [APPENDIX- C at 5-7]. Then, with regard to Woodlock, the Court gave a near word-for-word regurgitation of Respondent's [ASB] at 29-30 Compared next to [APPENDIX- C at 7-8]. It omitted every legal argument made by the parties: [ABM] at 22-24; [ASB] at 30-32; and [ARB] at 7-11, ambiguously and erroneously finding that "(NJoythieag In the law supports (Petitioner's! argument. See, Tex. Const, art. XVI, $ 1."Id. [APPENDIX- C
at 81. There was no dispute that Woodlock [ONLY] signed and executed anti- brlbery statement on January 1, 2005 [DNA2] CR 0 349 and Oath of Office on January 3, 2005 (DNA2] CR 0 348. The Petitioner made competent legal argument that Tex. Gov't Code Ann. S 74.055 created Woodlock's defacto office, Prleto Ball Bonds v. State,994 S.W.2d 316
, 319-320 (Tex.App.- El Paso 1999, pet ref'd), and that since Tex. Const, art. V, § 7 did not cover Woodlock's length / term In office, the two year teno-lImitations mandated under Tex. Gov't Code S 74.055(c)(6) and 74.0551(d); and Tex. Const, art. XVI, 5 30(a), controlled. As such, Woodlock was required, by law, under Tex. Const, art. XVI, 5 1 and $ 30(a) to file antl- brlbery statements and Oaths of office In January 2007, 2009, and 2011 - when his two year term-limits expired and he re-executed AFFIDAVITS TO SERVE under Tex. Gov't Code §§ 74.055(c)(6) and 74.0551(d). Such is also mandated under U.S. Const, art. VI, Clause 3. Contrary to the appellate Court's finding [AP PENDIX- C at 8], with regard to former / senior visiting Judge Woodlock's rulings [APPENDIX- A], are VOID, ab Initio, because he lacked the constitutional authority to act In such capacity on that time and date. Period. (C)> The Petitioner's "THIRD ISSUE" In [ABM] dealt with the denial of his due process (course) of law and equal protections under the law when his [PTD] was denied without any hearing or jury trial.Id. at 24-33.
The Respondent countered [ASB] at 33-43; which Petitioner further responded In [ARB] at 11-12 and (MTA21- denied by the appellate Court [APPENDIX- c at 10]. The Court disregarded alI Page 13 (PDR) arguments, pleadings, and record exhibits, simply dismissing the ground; yet, then ambiguously addressing an older opinion Judge Anne Gardner wrote against Petitioner In Reger v. Criminal Dlst. Attorney of Tarrant Cnty., No. 02-09-00363- CV,2011 WL 3546631
, 2011 Tex.App.LEXIS 6413 (Tex.App.-Fort Worth 2011, pet. denledKOplnlon on reh'gKNot DesIngated for Publ Icatton)? [APPENDIX- C at 8- 91. The Court further Ignored EXHIBITS- 1-7 offered In MOTION FOR REHEARING. [APPENDIX- H]. Petitioner urges this Court to order its Clerk to obtain a copy of said motion, or see it in PDF file at http://www.search.txcourts/gov/Case. aspx?cn+02-12-00178-CR&coa=coa02 (last visited 10/30/2014). We stl11 do not yet know the degree of Respondent Waller-Conder's consanguinity with the decedent's mother, which was never denied in this record. See, e.g.,APPENDIXES- D, E, F; United States v. Hale,422 U.S. 171
, 176 (1975)("Sllence gains ... probative
weight where It persists In the face of accusation."): Pitts v. State, 916 S.W.2d
507, 510 (Tex.Crlm.App.1996)(Same). (D» The Petitioner's "FOURTH ISSUE" in [ABM] alleged that the trial Court abused its discretion and denied his procedural due process (course) rights when it denied Subsequent DNA Testing motion.Id. at 33-44.
The Respondent made alterna tive arguments. IASB] at 44-50, which the Petitioner further responded.-^ In (ARB] at 11-12. After waiting 17 1/2 months - the appellate Court gave only one (1) page in OPINION affirming the trial Court's ruling. [APPENDIX- C at 9- 10]. Not one single time did the Respondent, or the appellate Court, ever mention or allude to the Petitioner's proffered three (3) sworn expert reports exposing that forensic biological material left on decedent's car and street contradicted the sworn trial testimony by Christina Renae Rag land-Storey. EXHIBIT- 7, attached to MOTION FOR REHEARING holds the fourth sworn expert report exposing further material, false and misleading testimony offered by the prosecution. Because this Court abhors the State's use of such false, misleading, material testimony to obtain wrongful convictions, See, e.g.. Ex parte Henderson,384 S.W.3d 833
, Page 14 (PDR) 836-837, 851-852 (Tex.Crlm.App.2012); Ex parte Ghahreroanl,332 S.W.3d 470
, 476- 483 (Tex.Crlm.App.2011); Ex parte Chabot,300 S.W.3d 768
, 770-71 (Tex.Crlm.App. 2009) and Ex parte Brian Edward Franklin, NO. WR-44,521-03, 2014 Tex.Crlm.App. Unpub. LEXIS 244 (Tex.Crlm.App.2014), Petitioner sought DNA testing to corrob orate his expert's sworn reports, attempting to cement this perjury offered by the Respondent's. And, (APPENDIX-C1 makes no mention that after Reger 1,222 S.W.3d 512-515
was handed down in 2007, the 80th Texas Legislature amended art. 64.03(b) C. Cr. P. and now prohibits such automatic non-flndlngs of Identity under art. 64.03(a)(1)(B) C. Cr. P., when defendant's, like Petitioner, plead not guilty by reason of self-defense. Compare: [APPENDIX- C at 9-10] -next to- [ABM] at 41-42. Nor did the Court address those cited cases between 2007 through 2014.Id. (E)> The
Petitioner's "FIFTH ISSUE" In [ABM] dealt with an "As-Applied" consti tutional denial under art. 64.03(a)(1)(B) when applied to ALL motions seeking DNA testing within self-defense cases.Id. at 44-48.
The Respondent only ad dressed "EQUAL PROTECTION" (ASB] at 51-54, which the Petitioner pointed out it was only an "As-Applied" challenge. (ARB] at 13-15. After waiting 17 1/2 months, the Court gave one-half of a page only addessing "EQUAL PROTECTION." IAPPENDIX- C at 101. Questionably, Judge Gardner saw this argument In Reger1, 222 S.W.3d at 514-15
, but denied relief because of the holdings In Kutzner v. Montgomery Co.,303 F.3d 339
, 340 (5th Clr. 2002); Harvey v. Horan,278 F.3d 370
, 375-76 (4th Clr. 2002), which were overruled by Skinner v. Swltzer, U.S ,131 S. Ct. 1289
(2011) after Judge Gardner Issued that opinion. Today, not one mention of this In [APPENDIX- Cl. She did cite to Ex parte Mines,26 S.W.3d 910
, 914 (Tex.Crlm.App.2000), which has nothing to do with art. 64.03(a)(1)(B)??? (F)> This Court has made It very clear to intermediate appellate Courts inside its holdings in Kombudo v. State,171 S.W.3d 888
, 889 (Tex.Crlm.App.2005); Light v. State,15 S.W.3d 104
, 108 (Tex.Crlm.App.2000), that under TEX. R. APP. P. 47.1, Page 15 [PDR] n(T]he Court ... must hand down a written opinion that Is as brief as practicable but that addresses every Issue raised and necessary to final disposition of the of the appeal." Herein, (APPENDIXES- C, E, F, and Hi are wholly failing to do such mandate. Judge Gardner is very capable of issuing Indepth and detailed opinions, Strobaugh v. State,421 S.W.3d 787
(Tex.App.-Fort Worth 2014), when
she wishes to. For these reasons, this most Honorable Court should ORDER the
Clerk of the 2nd Court of Appealks to promptly send this Court all Items neces
sary to aid It In deciding whether to GRANT discretionary review, TEX. R. APP.
P. 66.4(a), then GRANT this petition further setting this case for submission
and briefing under TEX. R. APP. P. 69.1 and 69.2.
IV.
PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, the Petitioner respectfully prays this
Court would GRANT discretionary review.
V.
VERIFICATION
I, Russell Jay Reger, TDCJ-CID #747783, being presently Incarcerated under
an uncontroverted, aoptlveiy admitted (By the Respondents) Illegal- null and
VOID judgment and sentence - In the French M. Robertson Unit of the TDCJ-CID
System, In JOnes County, Texas; do hereby verify and declare under penalty of
perjury that the foregoing PETITION, Its STATEMENTS and attached APPENDIXES-
A through H, are all true and correct, as well as being offered by me. In GOOD
FAITH.
[Tex. Civ. Prac. & Rem. Code S 132.001-.
(A signed / dated copy of this PETITION sha
SWORN TO BENEATH THE WINGS CF ALMIGHTY GOD on thislthe 21/day of JJnufry
Petltibner, Pro Se.
Russel I Jay Reger #7447783
French M. Robertson Bnit.
12071 FM 3522
Abilene, Texas 79601-8749
(325)548-9035
www.free-rusty-reger.com
Page 16 (PDR)
VI.
CERTIFICATE OF SERVICE
Pursuant to TEX. R. APP. P. 68.11, I hereby certify that a true and correct
copy of the foregoing PETITION and Its attached APPENDIXES- A through H, were
mailed to the below listed parties of interest*-"vla 1st)Class U.S. Maf^-Postage
Prepaid, on this the 21st day of January/^ / , 20J
Petitioner, Pro Se.
RusselI Jay Reger #747781
Hon. Lisa C. McMlnn
STATE PROSECUTING ATTORNEY
Price Daniel Sr. Bldg.
209 W. 14th St., Rra 202
P.O. Box 12405, Capitol Station
Austin, Texas 78711-2405
(512)463-1597
-and-
Mr. Charles M. Mai IIn
Assistant Criminal District Attorney
Appellate Section
401 W. Belknap St.
Fort Worth, Texas 76196-0201
(817)884-1687
RJR:flle
Page 17 (PDR)
UNDER THIS COVER: APPENDIX- A
If •{(
FILED
TARRANT cpiiwT
NO. 0579930D
2012 MAR J3 rV2.:|8-
STATE OF TEXAS iN the ^mmjmLDER
COURT NUMBER THR^W^ CLERK
v.
TARRANT COUNTY, TEXAS
RUSSELL JAY REGER
FINDINGS
shot William
1.
The defendant admitted •to the jury that he
Matthew Storey four times.
2.
The defendant admitted in his original DNA testing request
that he shot William Matthew Storey four times.
this murder is
The defendant's identity as the perpetrator of
not at issue. .
4.
The defendant has not met the requirements for jost-conviction
forensic DNA testing under Chapter 64 of the cf>de of Criminal.
Procedure.
ORDER
The Court denies the defendant's request for appointment of
counsel to represent him :on a subsequent motion for post
conviction forensic DNA testing.
The Court directs the Clerk of this Court to furnish a copy of
this finding and order, to;
"a, Mr. Russell Jay Reger, TDCJ-ID #747783, nFfe^hRobertson
Unit, 12071 FM 3522, Abilene, Texas 79601-8799; and
fa/ The appellate section of the Tarrant Lunty .Criminal
District Attorney's Office
' (f
J3tey°f22k*±L ?Dl^``
SIGNED AND ENTERED this
UNDER THIS COVER: APPENDIX- B
NO. 0579930D
STATE OF TEXAS IN THE CRIMINAL DISTRICT
v. COURT NUMBER THREE OF
RUSSELL JAY REGER TARRANT COUNTY, TEXAS
TRIAL COURT'S FINDINGS AND ORDER DENYING
DEFENDANT'S SUBSEQUENT MOTION FOR FORENSIC DNA TEE CNG^ 'P»T.
OT oo
FINDINGS
O
TC i—,
The defendant admitted to the jury that he sh^t^WiHiali
Matthew Storey four times. CP ::
The defendant admitted in his original DNA testing request:
that he shot William Matthew Storey four times.
The defendant's identity as the perpetrator of this murder is;
not at issue.
i
4. The defendant has not met the requirements for post-convictionj
forensic DNA testing under Chapter 64 of the Code of Criminal;
Procedure.
ORDER
The Court denies the defendant's subsequent motion for post
conviction forensic DNA testing.
The Court directs the Clerk of this Court to furnish a copy of
this finding and order to:
a. Mr. Russell Jay Reger, TDCJ-ID #747783, French Robertson
Unit, 12071 FM 3522, Abilene, Texas 79601-8799; and
COPY
The appellate section of the Tarrant County Criminal
District Attorney's Office '
SIGNED AND ENTERED this fcf day of
JUDGE PRESIDING
UNDER THIS COVER: APPENDIX- C
Page 1
; 1 of 1 DOCUMENT
RUSSELL JAY REGER, APPELLANT V. THE STATE OF TEXAS, STATE
NO. 02-12-00178-CR
COURT OF APPEALS OF TEXAS, SECOND DISTRICT, FORT WORTH
2014 Tex. App. LEXIS 10471
September 18, 2014, Delivered
NOTICE: PLEASE CONSULT THE TEXAS RULES OF APPELLATE PROCEDURE FOR CITATION OF
UNPUBLISHED OPINIONS.
PRIOR HISTORY: [*1] FROM: C'RJMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY. TRIAL COURT
NO. 0579930D.
In re Reger, 193 S.W.3d 922, 2006 Tex. App. LEXIS 4734(T'ex. App. Amariilo, 2006) CORE TERMS: testing, postconviction, forensic, overrule, recuse, notice of appeal, appealable order, disqualify, improperly denied, disqualified, convicted, shooting, new trial, appointment of counsel, district attorney, oath of office, self-defense, anti-bribery, prematurely, designated, abated, girlfriend, daughter, shot, jurisdiction to render, voidab initio, interlocutory order, former prosecutors, consanguinity, perpetrator COUNSEL: RUSSELL JAY REGER. APPELLANT, PRO SE, ABILENE, TEXAS. FOR STATE: JOE SHANNON, JR., CRIMINAL DISTRICT ATTORNEY, CHARLES M. MALLIN, CHIEF OF THE APPELLATE SECTION, STEVEN W. CONDER, ASSISTANT CRIMINAL DISTRICT ATTORNEY FOR TARRANT COUNTY, FORT WORTH, TEXAS. JUDGES: PANEL: GARDNER, WALKER, and MCCOY, J.I. OPINION BY: ANNE GARDNER OPINION MEMORANDUM OPINION1 l Sec Tex. R. App. P. 47.4. Appellant Russell Jay Reger appeals the denial of his second motion for forensic DNA testing. We affirm. Relevant Facts On April 2, 1995, Appellant and his girlfriend were engaged in sexual relations when Appellant.ripped off her shirt, The : Msfe® OwEStiaa Ufiswfai^ Page 3 2014 Tex. App. LEXIS 10471, *4 signed by the trial court." (emphasis added)). Rather than dismiss the appeal, we abated it for the trial court to render a final, appealable order. Cf. State v. Vardeman, No. 05-13-00241-CR, 2013 Tex. App. LEXIS 9988,2013 WL 4033796
, at *4 (Tex. App.-Dallas Aug. 8, 2013,,'no pet.) (mem. op., not designated for publication) (noting that trial court retains jurisdiction to render orders in [*5] underlying proceedings during pendency of appeal from interlocutory' order); Meineke v. State,171 S.W.3d 551
, 558 (Tex. App.-Houston [14th Dist.] 2005, pet. refd) ("While filing a notice of
appeal properly invokes the appellate court's jurisdiction, it does not automatically terminate the trial court's
jurisdiction.") (footnote omitted). Because Judge Woodlock's order was interlocutory, the trial court retained
jurisdiction to render a final order; thus, Judge Catalano's and Judge Walker's orders are not void ab initio. See, e.g.,
Turner v. State, No. 12-02-00168-CR, 2003 Tex. App. LEXIS 8443, 2003 WL 22240324, at *1-2 (Tex. App.-Tyler Sept. 30, 2003, no pet.) (mem. op., notidesignated for publication). Appellant also questions this court's authority to abate this case for an order on his subsequent request for DNA testing. This court properly abated the appeal to permit the trial court to render a final, appealable order. See Tex. R. App. P. 27.1(b), 44.4; Dewalt v. State,417 S.W.3d 678
, 685 n.32 (Tex. App.-Austin 2013, pet. refd); Ex parte Crenshaw,25 S.W.3d 761
. 764 (Tex. App.-Houston'[lst Dist.] 2000, pet. refd). We overrule Appellant's first issue. Qualifications and Authority of the Judges In his second issue, Appellantargues that Judge Catalano was disqualified from presiding over his DNA motion; that regional administrative judge, Judge Jeff Walker, improperly denied his motion to recuse Judge Catalano; and that Judge Woodlock was not qualified to rule on Appellant's motions. Judge Catalano An order denying a motion to recuse may be [*6| reviewed for an abuse of discretion on appeal. Green v. State,374 S.W.3d 434
, 445 (Tex. Crim. App. 2012). Appellant contends that Judge Catalano was disqualified from ruling on his DNA requestbecause Judge Catalano had previously served as an assistant criminal district attorney with the Tan-ant County Criminal District Attorney's Office. A judge is disqualified from hearing a case "wherein thejudge maybe interested, or where either of the parties may be connected with the judge, either by affinity or consanguinity, within such a degree as may be prescribed by;law, or when thejudge shall have been counsel in the case," Tex. Const, art. V, § 11,or "where he may be the party injured, or where he has been of counsel for the State or the accused, or where the accused or the party injuredmay be connectedwith him by consanguinity or affinity within the third degree, as determined underChapter 573, Government Code," Tex. Code Crim. Proc. Ann. art. 30.01 (West 2006). The Texas Court of Criminal Appeals has interpreted these two provisions, explaining that, as applied to former prosecutors,a judge is disqualified only if the record affirmatively demonstrates that thejudgeactively participated as a prosecutor in the very case at bar. Games v. State, 737 S.W.2d315, 319 (Tex. Crim. App. 1987). The mere fact that a judge served as an assistantdistrict attorney [*7] while a defendant's case was pending does not disqualify thatjudge.Id. Judge JeffWalker,
the administrative judge, heard the motion to recuse and denied the motion based on the evidence presented. The judgment of conviction and thecriminal docket list two prosecuting attorneys, Fred Rabalais and Tim Bednarz, Bednarz and former prosecutor Steve Gordon testified that they and-Fred Rabalais were the only assistant criminal district attorneys who worked on Appellant's prosecution. The State points out in its briefthatthe State Barof Texas website shows that Judge Catalano did not become a licensed attorney until May 1996, afterAppellant's trial. See For the Public: Find, State Bar OF TEXAS, http://www.texasbar.com (last visited Sept. 15, 2014). Because the record amply supports his ruling, Judge Walker did not abuse his discretion in denying Appellant's motion to recuse Judge Catalano. SeeGamez, 737 S.W.2d at 319
. Appellant also contends that Judge Catalano was biased and prejudiced against him. because hehad a personal relationship with Fred Rabalais and because Judge Catalano was involved ina conspiracy to deprive Appellant of his DNA rights. Nothing in the record supports Appellant's contentions. MSmm Chritf'san l»:wa»l8if Page 5 2014 Tex. App. LEXIS 10471, *11 Mines,26 S.W.3d 910
, 914 (Tex. Crim. App. 2000), cert, denied,532 U.S. 908
,121 S. Ct. 1234
,149 L. Ed. 2d 143
(2001). Further, we have previously addressed and overruled this issue. See RegerI, 222 S.W.3d at 514-15
. Finally, Appellant's contention that Skinner v. Switzer, 131 S. Ct, 1289,179 L. Ed. 2d 233
(2011), overrules our prior holding is without merit. That case stands for the limited proposition that a convicted state prisoner may seek postconviction DNA testing in federal court through a section 1'983 claim, not only through a habeas petition.Id. at 1293,
1298-1300.
Accordingly, we overrule Appellant's fifth issue.
Conclusion
Having dismissed a portion of his third issue and having overruled the remainder of his five issues, we deny "Appellant
Reger's Second Motion For Leave To Abate Appeal To Trial Court And Allow Refiling Of Out-Of-Time Motion for
New Trial; Motion to Disqualify And Motion to Recuse Judge Robb D. Catalano And; Live Hearing To Expand,
Support & Preserve Appellate Record," and we affirm the trial court's judgment.
/s/ Anne Gardner
ANNE GARDNER
JUSTICE
PANEL: GARDNER, WALKER, and MCCOY, JJ.
DO NOT PUBLISH
Tex. R, App. P. 47.2(b)
DELIVERED: September 18, 2014
U. 5, €•-.• ••- :'.;:.'..-yvu;-^
Margayst e.;v! ••>•"•. v: „/:-.-.n Library
Ablism i:r"&'.'.i:-; L^iversilY '
Abitena, TX 7*601
UNDER THIS COVER: APPENDIX- D
fc^j
RusselI Jay Reger
FILED TDCJ-CID #747783
COURT OF APPEALS French M. Robertson Unit.
SECOND DISTRICT OF TEXAS 12071 FM 3522
Abilene, Texas 79601-8749
FEB - 3 20K (325)548-9035
www.free-rusty-reger.com
DEBRASPSSAK, CLERK
January 29th, 2014
Hon. Debra Spisak, Clerk
COURT OF APPEALS
Second District of Texas
401 W. Belknap,. Ste. 9000
Fort Worth, Texas 76196
(817)884-1900
RE: Court of Appeals No. 02-12-00178-CR
Trial Court Case No. 0579930D
RUSSELL JAY REGER Vs. THE STATE OF TEXAS
Dear Ms. Spisak,
This letter /brief is a CLERICAL CORRECTION and/or ADDENDUM to my timely,
properly filed: APPELLANT REGER'S MOTION TO DISQUALIFY AND STRIKE PLEADINGS OF
ADA STEVEN WALLER CONDER BASED ON HIS CONSANGUINITY WITH DORIS WALLER STOREY,
AN ADVERSE VICTIM PARTY ("IMTA3J"). Said was received 01/10/14 and filed 01/17/14
jn your official docket.
Specifically, in [MTA3], Section II at Subsection (G) in Page 4, the follow
ing genealogy should be corrected to read:
RAYMOND CECIL CONDER, JR (Father) (DOB: 07/30/30);
MARY HELEN HAULER (Mother);
Married: (05/16/61) Rock County (JanesviIle), Wisconsin;
Begot: ADA STEVEN WALLER CONDER (SBOT 04656510) (DOB: 05/24/64); asd
Married: ANNE VAN WICKLER
-AND-
EMMETT E. WALLER (Father) (DOB: 04/30/1909);
IMOGENE HUFF (Mother) (DOB: 09/07/1908);
Married / Begot: DORIS JEAN WALLER (DOB: 06/05/44); and
Married: WILLIAM STOREY
- 1 -
As of 09/16/2002 - RAYMOND CECIL CONDER, JR., lived in Benbrook (Tarrant County),
Texas, until his death. EMMETT E. WALLER lived in Arlington (Tarrant County),
Texas, until his death on 11/17/36. IMOGENE WALLER continued Iiving in Tarrant
County, Texas, until her death on 11/25/91.
Please make sure this information and correction is presented at same time
as the IMTA31 is presented and considered by the Court.
I, Russell Jay Reger, TDCJ-CID #747783, being factually innocent and wrong
fully incarcerated under an uncontroverted, adoptively admitted (By'The TCCDAO)
illegal- null and VOID judgment of conviction and sentence, in the French M.
Robertson Unit of the TDCJ-CID System, in Jones County, Texas; do hereby verify
and declare under penalty of perjury that the foregoing LETTER BRIEF; ADDENDUM;
and STATEMENTS made herein are all true and correct, as well as offered by me-
in GOOD FAITH.
[Tex.Civ.Prac. & Rem. Code § 132.001-003 et seq. / Title 28 U.S.C. § 1746)
(A signed / dated copy of this ADDEhOJM shall havejfca^ame validity as its anginal)
Appel lant, Pro Se>
Russell Jay Reger V747783
French M. Robertson Unit.
12071 FM 35 2 2
Abilene, Texas 79601-8749
(325)548-9035
www.free-rusty-reger.com
RJR:f!le
xc: Steven Waller Conder (SBOT No. 04656510)
Asst. Criminal District Attorney
Tim Curry's Injustice Center
401 W. Belknap St.
Fort Worth, Texas 76196-0201 .
(817)884-1687
www.tarrantcounty.com
- 2 -
UNDER THIS COVER: APPENDIX- E
FILE COPY
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00178-CR
RUSSELL JAY REGER APPELLANT
V.
THE STATE OF TEXAS STATE
FROM THE CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY
ORDER
We have considered "Appellant Reger's Motion To Disqualify And Strike
Pleadings Of ADA Steven Waller Conder Based On His Consanguinity With
Doris Waller Storey, An Adverse Victim Party" filed by appellant Russell Jay
Reger, pro se.
The motion is DENIED.
The clerk is directed to transmit a copy of this order to the appellant and
the State's attorney of record.
DATED January 30, 2014.
PER CURIAM
UNDER THIS COVER: /IPENDIX- F
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00178-CR
RUSSELL JAY REGER APPELLANT
V.
THE STATE OF TEXAS STATE
FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY
TRIAL COURT NO. 0579930D
ORDER
We have considered "Appellant Reger's Motion For En Banc
Reconsideration Of Appellate Court's Per Curiam Order Dated January 30, 2014"
filed by appellant Russell Jay Reger, pro se.
The motion is DENIED.
The clerk of this court is directed to transmit a copy of this order to the
attorneys of record.
DATED September 18, 2014.
PER CURIAM
EN BANC
02-12-00178-CR
September 18, 2014
Page 2
Respectfully yours,
DEBRA SPISAK, CLERK
UNDER THIS COVER: APPENDIX- 6
%5"TfG^
\u
FILED tC.erk
COURT OF APPEALS "n"^
SECOND DISTRICT OF TEXAS
FORT WORTH SEP 1 2 201Z
NO. 02-12-00178-CR TM£ —-—""UTY
RUSSELL JAY REGER APPELLANT
V.
THE STATE OF TEXAS APPELLEE
FROM CRIMINAL DISTRICT COURT NO. 3OF TARRANT COUNTY
ABATEMENT ORDER
Appellant Russell Jay Reger attempts to appeal from the denial of his
subsequent motion for DNA testing. On August 10, 2012, after receiving tt>e.
clerk's record, this court notified the parties of our concern that we lack
jurisdiction over the appeal because our review of the clerk's record reveals no
order denying Appellant's m©tion for subsequent DNA testing.
((
Appellant contends that the. March 13, 2012 order, appearing in the clerk's
record immediately after the State's March 13, 2012 response to his motion for
subsequent DNA testing and a blank copy of the order, was intended to be an
order denying his motion for subsequent DNA testing. That untitled March 13,
2012 order provides,
FINDINGS
1. The defendant admitted to the jury that he shot William
Matthew Storey four times.
2 The defendant admitted in his original DNA testing request
that he shot William Matthew Storey four times.
3. The defendant's; identity as the perpetrator of this murder is
not at issue.
4 The defendant has not met the requirements for post
conviction forensic DNA testing under Chapter 64 of the Code
of Criminal Procedure.
ORDER
1 The Court denies the defendant's request for appointment of
counsel to represent him on a subsequent motion for post
conviction forensic DNA testing. [Emphasis added.]
Despite the emphasized language in the visiting judge's order, our review
of the clerk's record does not reveal that any request for appointment of counsel
was pending when the visiting judge signed the March 13, 2012 order.
Accordingly, in the interest of justice and judicial economy, rather than
dismiss the appeal for want of jurisdiction, see Tex. R. App. 44.4, In re Morton,
326 S.W.3d 634