                                                                             ACCEPTED
                                                                        03-14-00422-CV
                                                                               3639215
                                                              THIRD COURT OF APPEALS
                                                                         AUSTIN, TEXAS
                                                                    1/2/2015 3:35:41 PM
                                                                      JEFFREY D. KYLE
                                                                                 CLERK




                                                        FILED IN
                                                 3rd COURT OF APPEALS
                  No. 03-14-00422-CV                 AUSTIN, TEXAS
                                                 1/2/2015 3:35:41 PM
         IN THE COURT OF APPEALS FOR               JEFFREY D. KYLE
                                                         Clerk
    THE THIRD COURT OF APPEALS DISTRICT

                   AUSTIN, TEXAS

        WILLIAM J. COJOCAR, APPELLANT

                          V.

           SALLY CARRILLO, APPELLEE

      APPEAL FROM CAUSE NO. C2013-0134B

  207TH DISTRICT COURT OF COMAL COUNTY

THE HONORABLE CHARLES STEPHENS, PRESIDING

            APPELLANT’S REPLY BRIEF



 William J. Cojocar, Ph.D.        Clinton Lawson, Attorney at Law
 Pro Se Counsel                   755 E. Mulberry St. Suite 200
 66th Horseshoe Canyon            San Antonio, Tx 78212
 San Antonio, TX 78258            Telephone: 210 244 2701
 Telephone: (210) 835-5035        Email: clintonlawson@gmail.com
 Email: william.cojocar@sri.com




          ORAL ARGUMENT REQUESTED




                           1
                    Table of Contents


Index of Authorities…………………………………………………………….3

Statement of Facts………………………………………………………...…….4

Summary of Argument.…………………………………………………...…….6

Argument………………………………………………………………………..8

Appellant Counter Argument 1…………………………………………………11

Appellant Counter Argument 2………………………………………………....14

Prayer………………………………………………………………..………….18

Certificate of Compliance………………………………………………...…….19

Certificate of Service………………………………………………...………….20




                            2
                              Index of Authorities

Texas Rule of Appellate Procedure 38.2(a) (1) (B)

Texas Rule of Appellate Procedure 44.1 (a) (1)

Texas Rule of Appellate Procedure 9.4

Texas Family Code § 6.602

Texas Family Code § 7.009 Fraud on the Community; Division and Disposition of
Reconstituted Estate

Texas Civil Appeals Code Guide (Chapter 8 Appellant’s Reply Brief, Paragraph
8.5 Argument, p. 267).

N.P. v. Methodist Hosp. 190 S.W.3d217, 225




                                        3
                                Statement of Facts

In compliance with Texas Rule of Appellate Procedure 38.2(a) (1) (B), the

Appellant wishes to set forth the correct facts herein from the Appellee Brief.

The Appellant’s filing of the first and second amended Motion to Revoke the MSA

on 22 Jan 2014, revoking his consent to the MSA before rendition of judgment on

10 Oct 2013; and a second amended Motion to Revoke the MSA on 25 April 2014,

based on fraud and fraudulent inducement into signing the MSA; and requested

that the MSA be repudiated. (CR, p. 102) This filing of the Motion to Revoke the

MSA met the criteria of Texas Family Code § 6.602 paragraph (d), due to the

filing of the Motion to Revoke the MSA being filed prior to the final mediation

order hearing, which occurred on 28 April 2014. The 207th District Court

Honorable Judge Charles Stephens ordered, “I'm going to let the Third Court

decide if that's what you want to do; I'm going to enter the divorce decree today

and if there's some things we need to talk about today whether or not it complies

with the Mediated Settlement Agreement we can talk about that.” (RR, p. 16) The

Court made the decision to enter the divorce decree on 28 April 2014, without

allowing the Appellant to present the evidence to substantiate the Motion to

Revoke the MSA. The Appellant subpoenaed two key witnesses to testify at the

Motion to Revoke the MSA/Divorce hearing, and possessed significant and key

evidence to present to the court. The Appellant’s Counsel informed Judge Stephens


                                          4
that he possessed newly discovered evidence and subpoenaed witnesses to present

to the court; but as stated by Judge Stephens, he did not wish to hear the evidence

prepared and informed the Appellant’s Counsel that he would have to file a Motion

for New Trial; in which case the Appellant’s Counsel did not insist on the evidence

possessed for fraud be heard. (RR, p. 20-21) The Appellant provided his counsel

all of the evidence to support the Motions to Compel and Revoke the MSA based

on Fraud and Fraudulent inducement into signing the MSA; and the Appellant’s

Counsel failed to pursue the presentation of this prepared evidence, that prompted

Judge Stephens to grant the divorce and deny the Appellant his right to present the

evidence to support his case. The evidence that was provided to the court and was

not presented or heard is currently in possession of the Comal County District

Attorney after the Appellant’s 18 Sep 2014 Criminal Charges filing with the

Comal County Sheriff’s Department; pending pursuance of action from the Comal

County District Attorney based on the decision rendered by the 3rd Appellate

Courts of Appeals.




                                          5
                               Summary of Argument

The Appellant’s argument to the Appellee Brief addresses and counters the

Appellee’s arguments that focus on the legitimacy of the application and ruling of

the MSA and the Appellant’s "Fraud" Arguments being unsupported by the

Record. The Appellant notifies the Court that he was required to file a report with

the FBI on 13 March 2014 and subsequently filed criminal charges with the Comal

County Sheriff on 18 Sep 2014, whereby the case “evidence” remains with the

Comal County District Attorney pending results of this appeal. The Appellant

counters the Appellee’s first Argument by a reaffirmation of Texas Family Code §

6.602 paragraph (a) that states that “On the written agreement of the parties or on

the court's own motion, the court may refer a suit for dissolution of a marriage to

mediation”, noting that the two parties did not possess a written agreement to

mediate in accordance with the TFC § 6.602; thereby not fully complying with the

Texas Family Code § 6.602 stipulation. This extract from the Texas Family Code

is not a flawed reading of the statute, and the statute clearly states that in order to

be compliant with the code, an Order to Mediate is required to be produced by

written agreement of the parties or on the court’s own motion. The Appellee’s

second argument is countered by the Appellant’s stating that the Appellee’s fails to

counter the Appellant’s Argument #2 (Appellant’s Brief, pp. 27-30), based on the

fact that the trial court erred by denying the Appellant’s Motion to Revoke the


                                            6
Mediated Settlement Agreement and failed to consider the substantial evidence

that the Appellant was fraudulently induced into signing the MSA, and did so

under duress. This evidence was introduced to the Court in the Appellant’s Motion

to Revoke the Mediated Settlement Agreement and the Motion for New Trial. The

Appellant reiterates that he provided his counsel all of the evidence to support the

Motions to Compel and Revoke the MSA based on Fraud and Fraudulent

inducement into signing the MSA; and the Appellant’s Counsel failed to pursue the

presentation of this prepared evidence, that prompted Judge Stephens to grant the

divorce and deny the Appellant his right to present the evidence to support his

case. These errors amounted to a denial of the Appellant’s rights as it reasonably

calculated to cause and did cause rendition of an improper judgment in this case.

(Tex. R. App. P. 44.1 (a)(1); (Appellant’s Brief, p. 28). The Appellant also

provided argument in the Appellant Brief (p. 15) that the Appellant’s counsel

miscalculated the community estate during mediation, not being in accordance

with Texas Family Code § 7.009 Fraud on the Community; Division and

Disposition of Reconstituted Estate; alleviating the Appellee’s argument stated in

the Appellee Brief (p. 12).




                                          7
                                    Argument

      The premise of the arguments posed by the Appellee’s counsel is centered

on the compliance of the MSA and the “Fraud” arguments being unsupported by

the record. The Appellee’s counsel states that “In the absence of any evidence of

fraud in procuring the mediated settlement agreement, Judge Stephens properly

entered judgment granting the divorce based on the parties' mediated settlement

agreement when the mediated settlement agreement met the requirements of Texas

Family Law Section 6.602”. (Appellee Brief, p. 5)

In accordance with the Texas Civil Appeals Code Guide (Chapter 8 Appellant’s

Reply Brief, Paragraph 8.5 Argument, p. 267), “new issues raised in the reply brief

are generally waived; however, an appellate court may consider a new issue under

appropriate circumstances” (N.P. v. Methodist Hosp. 190 S.W.3d217, 225). It is

imperative to notify the Court that the Appellee’s statement that the evidence of

fraud procuring the MSA was absent is not a valid statement of fact. The Appellant

possessed evidence that was acquired supporting the Fraud allegation that was

acquired before the MSA was signed and continued to acquire evidence supporting

Fraud after the MSA was signed; and submitted all evidence over to his attorney

Mr. James Bettersworth. When the Appellant discovered that his wife (the

Appellee) had released and stole unclassified/For Official Use Only, Corporate

Proprietary Material and Intellectual Property, that was protected by Federal Non-


                                         8
Disclosure Agreements, from 5 major Department of Defense Contractors and

DOD departments, to an unauthorized and 3rd party; he notified his attorney that he

was required to report the NDA breach, in accordance with NDA requirements, to

the Federal Bureau of Investigation. This report was filed with the FBI on March,

13th 2014; 1.5 months prior to the Motion to Revoke the MSA and Divorce

hearing, that was held on April 28th, 2014. The Appellee’s Counsel was not

notified of this report; nor was the Court, by the Appellant’s Attorney. This report

to the FBI contained reported allegations from the Appellant, not only of the

Federal NDA Information Breaches, but also of additional Federal Crimes of

Computer crimes or intrusions into computer networks, particularly those

associated with National Security; Corrupt activities in state, local, or federal

governments or in law enforcement; Financial crimes that involve Fraud, Mortgage

Fraud, or other investment fraud schemes where significant dollar losses have

occurred; Extortion; Color of Law Abuses; Fabrication of Evidence; House

Stealing; and Intellectual Property Theft. The FBI in took the report and notified

the Appellant that they would review the submitted evidence; but that the case

would more than likely be handled in the Civil Court. When this evidence was

ready to be presented to the 207th District Court, in support of the Motion to

Revoke the Mediated Settlement Agreement, it was not presented to the Court by

the Appellant’s attorney; and subsequently not with the Motion for New Trial that


                                           9
was subsequently withdrawn. The Appellant was provided counsel by post hearing

separate counsel, that the Fraud evidence possessed, required the attention of the

District Attorney. On 18 September, 2014, the Appellant filed the following list of

criminal charges with the Comal County Sheriff’s Department Criminal

Investigative Division:

      PC 15.01 Criminal Attempt
      PC 15.02 Criminal Conspiracy
      PC 16 Criminal Instruments, Interception, Use of Oral Communication
      PC 21 Sexual Offenses
      PC 22 Assaultive Offenses
      PC 31 Theft (house stealing)
      PC 32 Fraud
      PC 32 Subchapter B Forgery
      PC 32.32 False Statement to Obtain Property
      PC 32.34 Deceptive Business Practices
      PC 32.45 Misapplication of Fiduciary Property or Property of Financial
      Institution
      PC 32.46 Securing Execution of Document by Deception
      PC 32.47 Fraudulent concealment of Writing
      PC 32.51 Fraudulent use or Possession of Identifying Information
      PC 33.02 Computer Crimes, Breach of Computer Security
      PC 34.02 Money Laundering
      PC Chapter 36 Corrupt Influence
      PC Chapter 37 Perjury and other Falsification


The Appellant’s Attorney, also fully aware of this criminal charges filing, did not

inform the Appellee’s Attorney, that criminal charges were being filed by the

Appellant. The Comal County Criminal Investigative Division has conducted an

initial screening of the Case # 14-09-2882, and submitted it forward to the Comal

County District Attorney. The Comal County District Attorney has not dismissed
                                         10
the case, and is holding pursuance of action of the case, awaiting confirmation of

civil proceedings from the 3rd Court of Appeals Appeal Case decision. The Comal

County District Attorney maintains current possession of the evidence that

supported the Appellant’s Motion to Revoke the MSA; thus the Appellant notifies

the Court that this appropriate extenuating circumstance of the “absence of

evidence”, was not absent, and that the Appellant was prepared to present the

evidence, but was misrepresented by his attorney with the Appellant’s attorney

choosing not to present the evidence on the Appellant’s behalf, thus supporting

Appellant Argument #4. If the evidence possessed that was supposed to be

presented to the Court in the Motion to Revoke the MSA is substantial enough for

the District Attorney to consider for criminal charges filed; it should have been

substantial enough for the Appellant’s Attorney to present to the Court, and for the

Judge to properly hear.

Appellee Brief Argument I. MSA in Question Complies with Section 6.602 thus

Requiring Rendition of Judgment on the MSA.

Appellee’s Counsel argues that “Cojocar’s argument is based on a flawed reading

of the MSA or a flawed reading of the statute-in either instance it is wrong.”

(Appellee Brief, p. 6) As stated in the Appellant’s Brief (p. 17), “Texas Family

Code § 6.602. MEDIATION PROCEDURES paragraph (a) states that “On the

written agreement of the parties or on the court's own motion, the court may refer


                                         11
a suit for dissolution of a marriage to mediation”. The two parties did not possess

a written agreement to mediate in accordance with the TFC § 6.602; thereby not

fully complying with the Texas Family Code § 6.602 stipulation. This extract from

the Texas Family Code is not a flawed reading of the statute. The statute clearly

states that in order to be compliant with the code, an Order to Mediate is required

to be produced by written agreement of the parties or on the court’s own motion.

Both attorney’s in this case failed to commence this mediation process in

accordance with the specified instructions outlined in TFC § 6.602(a). Failure to

abide by the code, by the two Texas State attorneys does not substantiate or justify

a lack of full compliance of the code. An order to mediate was not produced by

both attorney’s nor signed by a Judge, as required by the code, thereby starting off

the mediation session being non-compliant with TFC § 6.602(a). This is

substantiated by the decision from the 10th District Court of Waco 2004 Case, Lee

vs. Lee, which does reference other districts, articulates that in this case, “there

was no written agreement to mediate and there is no court order.” This case

specifically states that because there was no written agreement to mediate and no

court order to mediate that the Court, and that the parties had not complied with

Section 6.602; therefore the Court committed error by entering the divorce decree.

This Case versed the MSA based on the simple fact there was no written

agreement or court order. (RR, p. 9) Additionally, as stated in the Appellant’s Brief


                                           12
(p. 23), The Texas Family Code § 6.602 (d) also states that: “A party may at any

time prior to the final mediation order file a written objection to the referral of a

suit for dissolution of a marriage to mediation on the basis of family violence

having been committed against the objecting party by the other party”. Prior to

Mediation Order No. C-2013-0134, being heard by the 207th District Court of

Comal County, on 28 April 2014, the Appellant filed a Motion to Revoke the

Mediated Settlement Agreement, on 22 January 2014, with two subsequent

amendments on 24 and 25 April 2014. This filing of the Motion to Revoke the

MSA met the criteria of Texas Family Code § 6.602 paragraph (d), due to the

filing of the Motion to Revoke the MSA being filed prior to the final mediation

order hearing, which occurred on 28 April 2014. The 207th District Court

Honorable Judge Charles Stephens ordered, “I'm going to let the Third Court

decide if that's what you want to do; I'm going to enter the divorce decree today

and if there's some things we need to talk about today whether or not it complies

with the Mediated Settlement Agreement we can talk about that.” (RR, p. 16) The

Court made the decision to enter the divorce decree on 28 April 2014, without

allowing the Appellant to present the evidence to substantiate the Motion to

Revoke the MSA. The Appellant also counters the Appellee’s Argument B, that

“Even If Parties' MSA Did Not Satisfy Section 6.602{a}, Section 6.602 Still

Requires Rendition of Judgment on Parties' MSA” (Appellee Brief, p. 7), and the


                                          13
statement that the Appellant’s argument results in an “absurd reading of the

statue” and a “construing the statute” (Appellee Brief, p. 8). The reading of the

statue is clear and the requirement for Texas Family Code § 6.602, paragraph (a) is

clear as specified. No absurd reading or construing of the statute occurred.

Appellee Brief Argument II. Cojocar's "Fraud" Arguments Unsupported by the

Record. The Appellee’s counsel states that “Cojocar failed to preserve his

complaints for appellate review, but also the undisputed evidentiary record is

devoud of any evidence whatsoever that the agreement was illegal or that Carrillo

procured the agreement by fraud, duress, or other dishonest means” (Appellee

Brief, p. 10); and that “Cojocar did not preserve his complaint that Judge Stephens

erred in not hearing testimony in support of Cojocar’s allegation that Carrillo

committed fraud in procuring the MSA.”(Appellee Brief, p. 11) This argument fails

to counter the Appellant’s Argument #2 (Appellant’s Brief, pp. 27-30). The

Appellant clearly notifies the Court that the trial court erred by denying the

Appellant’s Motion to Revoke the Mediated Settlement Agreement and failed to

consider the above listed and other substantial evidence that the Appellant was

fraudulently induced into signing the MSA, and did so under duress. This evidence

was introduced to the Court in the Appellant’s Motion to Revoke the Mediated

Settlement Agreement and the Motion for New Trial. The Appellee’s Counsel also

fails to discount his personal withholding of critical discovery evidence prior to the


                                          14
Mediated Settlement Agreement; his intimidation and coercion tactics used to

intimidate the Appellant during the mediation session, using proclaimed possession

of maintaining evidence that would damage the Appellant; when in fact he

(Appellee’s Counsel) publicly voiced he never viewed, but claimed he had in his

possession, (Appellee’s Response to Interrogatories, p. 5); and through his attempt

to coerce the San Antonio Computer Doctor to blacken out the Appellee’s name on

the Subpoena to Compel Production of Documents and Tangible Things Affidavit,

to further conceal evidence that should have been submitted in Discovery; which

was further requested by the Appellant’s Counsel in the Motion to Revoke to

Compel for Discovery and Sanctions. As stated in the Appellant’s Brief (p. 30)

“The trial court erred by denying the Appellant’s Motion to Revoke the Mediated

Settlement Agreement and failed to consider the above listed and other substantial

evidence that the Appellant was fraudulently induced into signing the MSA, and

did so under duress.” Had the Appellant been afforded the opportunity to view the

concealed and withheld evidence that was not presented by the Appellee’s

Discovery (pre-mediation session), he would not have signed the MSA and

requested a trial by jury for Marital Fraud, Fraud, Securing the Execution of a

Document by Deception (Documents being the two Mortgage Closings and the

Appellee’s 23 July 13 House Sale Contract), and House Stealing. The Appellee’s

Counsel states that, “After hearing on Cojocar’s second amended motion to revoke


                                         15
the MSA, Judge Stephens stated Cojocar was welcome to put on testimony to

support his fraud based claims for revocation of the agreement” (RR 1:19-20); and

that “Cojocar voluntarily elected not to provide any such testimony at that time”

(id). This is a false statement. The Appellant’s Counsel informed Judge Stephens

that he possessed newly discovered evidence and subpoenaed witnesses to present

to the court; but as stated by Judge Stephens, he did not wish to hear the evidence

prepared and informed the Appellant’s Counsel that he would have to file a Motion

for New Trial; in which case the Appellant’s Counsel did not insist on the evidence

possessed for fraud be heard. (RR, p. 20-21) This refutes the Appellee’s argument

that “No Argument was made or evidence offered to the trial court concerning

Cojocar’s complaint that the attorney miscalculated the community estate during

mediation.” (Appellee Brief, p. 12) The Appellant “Cojocar did not chose to

pursue his fraud claim at that time”; it was the Appellant’s Counsel who chose to

not pursue the Appellant’s fraud claim at that time; which support’s the

Appellant’s Argument #2, that he was misrepresented by his counsel. The

Appellant was in the back of the court room, could not hear what was going on,

and when called to the bench, notified Judge Stephens that he was not in agreement

with the divorce (Appellant’s Brief, p. 38; RR, p. 34), thus supporting the

Appellant’s Argument #5. The Appellee’s Counsel accuses the Appellant for

“Throwing his lawyer under the bus does not void the MSA” (Appellee’s Brief, p.


                                         16
12-13). The Appellant provided his counsel all of the evidence to support the

Motions to Compel and Revoke the MSA based on Fraud and Fraudulent

inducement into signing the MSA; and the Appellant’s Counsel failed to pursue the

presentation of this prepared evidence, that prompted Judge Stephens to grant the

divorce and deny the Appellant his right to present the evidence to support his

case; and in doing so, the 207th District Court Honorable Judge Charles Stephens

so stated: “I'm sure we'll be back here dealing whether or not we're going through

the whole thing again.” (RR, p. 18) These errors amounted to a denial of the

Appellant’s rights as it reasonably calculated to cause and did cause rendition of an

improper judgment in this case. (Tex. R. App. P. 44.1 (a)(1); (Appellant’s Brief, p.

28).




                                         17
                                       Prayer

WHEREFORE, PREMISES CONSIDERED, Appellant William J. Cojocar, asks

the Court to: (1) reverse the judgment for decree of divorce in order to permit the

Appellant to file a Motion for New Trial with the 207th District Court to present

all facts and evidence that support the pursuance of fraud and fraudulent

inducement into the Mediated Settlement Agreement, to attain a fair and equitable

division of the marital estate and property; and (2) allow the Appellant the

opportunity to present to the District court the Crimes and Torts that have been

committed against the Appellant by the Appellee; and (3) modify the Decree of

Divorce to expunge the false inclusion of the 2012 IRS tax statement that was

erred from being deleted from the final Decree of Divorce; (4) grant such other and

further relief to which he may show himself justly entitled, and (5) grant the

Appellant the opportunity to conduct an Oral Argument to aid the Court’s

decisional process in this appeal.




                                         18
                            Certificate of Compliance

Pursuant to TEX. R. APP. P. 9.4, I hereby certify that this Appellant Brief contains

3,505 words. This is a computer-generated document created in Microsoft Word,

using 14-point typeface for all text, except for footnotes which are in 12-point

typeface. In making this certificate of compliance, I am relying on the word count

provided by the software used to prepare the document.

                                              /s/ William J. Cojocar
                                              William J. Cojocar, Ph.D.
                                              Pro Se Counsel




                                         19
                               Certificate of Service

The undersigned hereby certifies that a true and correct copy of this brief was

served by fax and email to counsel for Sally Carrillo, being Clinton Lawson,

Attorney at Law, 755 E. Mulberry St. Suite 200, San Antonio, Texas 78212.

                                              /s/ William J. Cojocar

                                              William J. Cojocar, Ph.D.

                                              Pro Se Counsel




                                         20
