y~<l>;§L/QS'©)

TEXAS coURT or cRIMINAL APPEALS DEC.;@,zola
cLERK oF THE coURT “

MR.ABEL ACOSTA

Po Box 12308

AUSTIN,T; 78711

RE: Courtesy Copy of Applicant's objections to the State'S Answer
that he did not receive prior to the previous filing. WR-82,493-01.
EX PARTE JOSEPH DALE MOSS.

Dear Mr. Acosta,

Please find enclosed Applicant'$ Objections tovthe State'S
Answer in the above numbered cause.

This courtesy copy is being provided for the purpose of
alerting the Court of Criminal Appeals that the above documents
have been filed in the Randall.County District Clerk?s office,.~
The Clerk will be forwarding the same l am sure shortly.

lf there are any questions or concerns, please do not hesitate
to contact me. Tank you for your kind assistance in this matter.

. wilbur

   
  
   

 

Sincerel
y ` 59 ePh Dale Moss
RECENE|\N §§ §5;§ 369 N
CO!JRTOFCR!M|NALAPPEALS Park, TX 78367
_]AN 111 2.15 Allred Unit

Abe| Acosta, Clerk

CAUSE NO.W-219él=C-1
C.C.A.WRIT NO.WR,493-Ol

Ex PARTE § » IN THE DIsTRIcT couRT
vs. 1 ' § RANDALL coUNTY, TEXAS
JosEPH DALE Moss § 2~513t JUDICIAL DISTRICT

APPLICANT'S RESPONSE AND OBJECTIONS TO THE STATE'S
ANSWER FOR WRIT OF HABEAS CORPUS

 

NOW COMES JOSEPH DALE MOSS,HEREAFTER APPLICANT, in the above
numbered and styled cause and respectfully Responds andiObjects to
the State's Answer in these habeas proceedings. Applicant would show
the Honorable Court the following in support of the same:

l. `
TIMELINESS

Applicant objected to the Trial Court's Art.ll.O7 Sec.3(c) den-
ial as soon as he received from the trial Court Clerk notice that the
writ application had been forwarded to the Court of Criminal Appeals
on November 26,2014. Those objections were made without ever receiv-
ing the state's Answer or Trial Court findings. Applicant prepared and
mailed those objections out on December 4,2014 dated December 5,2014
because the mail pickup would not be until the morning of the 5thf
Applicant received the State's Answer on the afternoon of the 4th.
The State's Answer was file stamped on November 26,2014, the same day
that the writ application was transferred to the C.C.A. Applicantdid
complain and request the Clerk properly forward the filings according
to the rule at that time} but has yet to hear from the Clerk or rec-
ive anything other than the letter noticing the C.C.A. was sent the
writ applicatiomm

The Memorandum in Support of the writ application at p.ii in
Paragraphth, as well as the Motion to Recuse, as evidenced in the
' letter to the Clerk upon filing of the writ and motion to recuse or
Att.-A to the Objections to the Trial Court's Sec.3(cj general denial,
shows that the motion to recuse was timely filed and properly requ-

ested to be presented to the judge within three days as well. The
contested Trial Court Judge was legally barred from preforming any
duties,... 1 .

other than ministerial, while under the legally filed motion to re=~
cuse. The State make no mention of the motion to recuse in their re-
sponse. The State was also properly notified of the Motion toirecuse.
The State's requesting and presenting of two affidavits from the con-
tested attorneys does not constitute proper adjudication of the merit
of Applicant's claims, by the Trial Court, according to Art.ll.O7
Sec.3(c§. However, what the State's actions do indicate is that there
are previously unresolved facts material to Applicant's confinement
that require further record developement. Applicant objectsato the
State's interpretation of the evidence in the record being sufficient
for the Court to rule on the relief sought.(P;13) of their Answer.
TheeCourt of Appeals and the State on direct Appeal both were in agr-
eement that this record needed to be developed in order to adjudicate
the merit of Applicant's claim of ineffective assistance of counsel
there.

Applicant also objects to the State's entering of Attorney Ray's
affidavit that is perjinious on several points provable by the rec-
ord, that Applicant will discuss below, as well as claiming to have
contacted Applicant's Father and making absolutely false statements
that Attorney Ray claims my Father made....which my Father denies
and will testify to the same at an evidentiary hearing.

Because the State relies solely on the attorney's affidavit;
and his veracity, Applicant will direct his objections toward the
affidavits specifically and in the order they appear there. lt
is an important consideration to respectfully remind the reader
that Applicant's claims in this writ Application rise to the level
of an actual conflict of interest concerning trial attorney Ray.

` ` II.
LENDON RAY'S AFFIDAVIT:GROUND ONE

(x-B) and AturneyRay's statements prove Applicant tried to
have Ray contact Rick and Shayna Armijo, the Complainant's ex-hus
band and daughter, and subpoena them for trial. The affidavit shows
he never did. Mr.Ray, to cover for this failure, makes up a compl-
etely false scenario to try to explain his lack of investigation.
Applicant wanted these two people subpoenaed in.order to be able
to show the Complainant's habit and routein lifestyle of fighting

with spouses, obviously having make up sex and carrying on in that
2

relationship for years. T.R.E.406 allows introduction of evidence

if the proponent can at least show that the person acted in a spec-
ific situation with specific conduct. Anderson V State 15 SW 3d 177,
183. Applicant wanted these people investigated and subpoenaed in
order to show the complainant's habit, routein~and custom and was
just as much the cause of the fight and make up sex as Applicant
ever was. This was not to intimidate her into not testifying. How-
ever, Applicant did believe that once she was aware of the fact they
were going to be required to testify and tell the truth, she would-
realize that her character was going to be impeached, knowing she
was lying' about Applicant here, she would decide to tell the truth
since she only really reported the physical altercation. Attorney
Ray explained many times that her credibility was everything in this
case and repeatedly asked me to provide him evidence on Teresa Shaw.
He states the same at page 2 of his affidavit where he specifically
says[or Teresa Shaw]. What possible other type of evidence was he
asking me to provide him on Teresa Shaw. The exact defense Applicant
describes here is the exact defense Applicant believed Ray was pur-
suing. Her unsavory andtshady past was not the issue, the way she
conducted her life in relationships was and our situation was justj
an extension of the way she liked to live. Both Rick and Shayna would
have been required to testify that the complainant and Rick were in
an abusive relationship that lasted years and Shayna was-the child .. .….
born out of it indicating many instances of fighting and make up
sex. Raising damaging evidence against Shayna was the not my int-
ention concerning the pedophile grandfather, the fact Teresa left
her with the grandfather knowing he had molested her was my point
while she ran off with another abusive man.

The result of Teresa Shaw and the State knowing no witnesses
were subpoenaed was that the state portrayed her as a "polite" per-
son(V:A 42), and the Complainant was allowed to tell the jury that
this was"the first time she had ever been in this situation"(V:4
49), when there were readily available witnesses who could have
truthfully impeached her whether they wanted to or not because g
there, as Applicant told the attorney, were victim advocate records 1

available to prove Rick had damaged the Complainant's teeth and she

never took advantage of it because she was to busy chasing drug

dealing boyfriends to get them fixed, 4

ROD BOWERS§ Attorney Ray claims to have talked to~Mr.Boweris, my~boss
at the Construction company and landlord during this incident. lf he
actually did, he could have easily found out that Mr.Bowers never had
a "underaged receptionist" while l worked there. This can be proven
up easily at the requested evidentiary hearing. Attorney Ray will
also be able to explain why he did not call Rod after speaking to

him and finding out, according to the affidavit at page 3, considering
MrdBower's was home all night and neither heard or saw anything of
the fight that supposedly lasted hours. This alone would have impp-
eached the complainant's version of the case, whether Mr.Bowers wan-
ted to testify on my behalf or not.

vSHERIFF RICHARDSON: Applicant had a very favorable relationship

with the Sheriff and spoke to him many times and the Sheriff never
mentioned talking to this attorney. Sheriff Richardson is the one

who fired the head of the medical department for the handling of
Applicant after the suicide attempt. Again the requested evident-
iary hearing with bear this out and the true nature of the conver-
Sation, if in fact there was one.

BUTCH TESTERMAN: Attorney Ray requested funds for and investiga-

tor 6 weeks before trial after being appointed for 10 months. This
request, as (x-S) shows that Attorney Ray admits only limited inv-
»estigation at that point and understood there were a"number of.wit=
nesses that needed to be sought out and interviewedv; yet Mr.Ray

now only refers to the investigator concerning Mr.Testerman. Mr.
Testerman was on the State's witness list and testified at trial.
Attorney Ray claims Butch told him he had"seen Mr.Moss act agg-
resive toward Teresa on other occasions" and encouraged her to stop

" The record does not support this calimed statement.

'Seeing him.
lt was the Complainant who testified this was our first fight(Vé:
49). lnterestingly, Applicant opines, that if Mr.Testerman freely
offered this information to this attorney, surely the same was in
the State's possession at trial, and the subject was not broached

'by them.

LYNDON MOSS: Upon receipt of this State's Answer, and reading the
paragraph on page 4, where Mr.Ray states he contacted my father;
Lyndon Moss, l contacted my father and read him the statements made
therein by Mr.Ray. My father, who faithfully supports me then and
now, absolutely denied ever speaking to the attorney, other than
maybe on trial day briefly. My fathter specifically stated he did
not makewthe remarks concerning Teresa being a good woman, he never
liked her, and he never stated he supported her in this matter.
This is aggravated perjury and a continued bias resulting from the
conflict of interest that started when Applicant refused the plea
bargain offer for 12 years in prison and culminated in the pres-
entation of the false defense at trial, elicitation of extraneous
offenses during guilt and innocence(VA: 194-209), and Applicnat's
attempted suicide which leddto his return to court Hshackled and
cuffed and seperated from the attorney accross the courtroom.

My father has expressly told me that he will be very willing to
take the stand under oath and testify that he absolutely never said
any of what Mr.Ray claims he saidf Mr.Ray attempts to make Applic-
ant look like a child molester, concerning the"underage reception- "
ist" and now would have the Court believe that my father actually
supported Teresa in this matter. Attorney Ray attempts to drive

this home in his Summary at page 13 where he states no one would

supportwmy version of the case,"not even his.father;ylFor.these~lies,n".Mmi.mh

Applicant will immediately file a State Bar Grievance for the agg-
ravated perjury concerning the false claimed statements from my
father, with his support and take every single measure to pursue
the legal avenues available to correct this type of vindictive att-
itude from the attorney. lt is only because of time restraints that
Applicant has chosen to rely on the requested evidentiary hearing
as opposed to an affidavit from his father,which in in the works

as we speak,and will be presented as it becomes available. The
requested evidentiary hearing will allow the Trial Court to make
the proper credibility determination under the crucible of cross-
examination of Applicant, Applicant's Father, and this attorney,

respectfully.
ln conclusion at page 5 Attorney Ray make a conclusory state-
ment the"Joe's list of potential witnesses " were detrimental or

their testimony was inadmissable. Mr.Ray cannot claim to have made

a reasonable strategic choice about Rick and §haynafS testimony

when it is very clear he never investigated them. The notes and let-
ters were in my possession and shown to him at every visit as well
as the letters, and more, sent to him. However, and very important
this entire claim, Mr.Ray clearly admits that it was his theory that
he alone presented.Page 6 of Aff. Also at page 13 of the aff. he
clearly admits he presented his own defense."Rather than present
Joe's defense." Applicant has the right to present his own defense
and made this clear many times to the attorney as the attorney adm+tr
its in this affidavit. The difference in his story and mine is the
fact that he led me to believe that my version of the case would be
a viable defense and would be presented, not a fabricated defense

based on jealousy that the record bears out was totally false.

GRoUND Twoz:#PLEA NEGOATIONS
Applicant didn't "run off" his previous attorney. Applicant
did file a state bar grievance on the attorney for his performance
or the lack thereof. This is surfeit information used for no other
reason than to display the attorney's attitude toward Applicant and
has no probative value to this response other than to further prove
this attorney's lack of professionalism. Applicant did file a State

Bar Grievnace against attorney_Ray but nor for the reasons he falsely

"State”in"this…affidavitr“Applicant*filedwthe~StateWBar~Grievance~be-~w~~'M~-~

cause after Mr.Ray's appointment he failed to contact me for 6 mon-
ths. Again the requested evidentiary hearing will allow Applicant
the time to obtain this grievance and easily prove this attorney's
false statements. That request is in the mail as l write today.

The affidavit of attorney Ray does more to prove his own ine-
ffectiveness than to dispell it. His only defense to the erroneous
advice concerning penalty rage defects in (x-6)nnot(x-4) as the att~
Orney states om page 8, is that the document is "incompletel" The {¥K
reason itbvincomplete" is the fact that the attorney failed to ever Mw
do any meaningful investigation in this case, including while he
was advising me to plead guilty "at the begining of the case", acc-
ording to his own affidavit at page 8. As his affidavit shows, his
advice to plead was not based on specific facts of this case, which

based on well known case authority from the Court of Criminal.App-

6

eals, would render him ineffective thereby. This attorney should
not be allowed to attempt.totourehisrmmineffectiveness by simply
saying this all important plea bargain refusal documnet is simply
incomplete; The penalty range evidence is a major concern for any
defendant who decides to take his case to trial, as argued in App-
licant's writ. Secondly this attorney cannot be presumed to have
made a strategic decision about witnesses he has completely failed
to investigate or interview. lt follows that the strength of the
State's,case cannot be properly discerned without investigating it.
Relying on th eState's file or interpretation of the evidence is
clearly all that this attorney was doing when he offered this plea.
This is easily shown by(x-S) where he readily admits,lO months into
his representation and only 6 weeks prior to trial, that he only
had performed "limited investigation" and understood the need to
seekkout and interview a "number of witnesses" in order that App¥
licant "receive his right to effective assistance of counsel?(emph-
asis added). The (x-6)rejection clearly shows that this offer was
made only one time and "withdrawn" and no other offers would be
made. lf this attorney's affidavit is true, that offer was made at
the beginning of the representation, not on the eve of trial, as

he attempts to play both sides of the field. The evidence(x-6)shows

this was not a running offer, Applicant absolutely objects to this

attorney_',§_.abi__lity,_._t___<>._ sn_§_er_.,_ thi§ __`af:ll_>flssos§ _-affi€iavfl_,t_ and r_the §P.a_t€.' §..

entering it in such a manner without consideration of that fact.
The State's file, because the attorney's file contained this offer
and facts concerning withdrawal, the origin of (x-6), should hold
the necessary information upon which to judge the truthfullness of
the attorney in this instance.The fact remains, the evidence supp- n
orts the calim that this penalty range advice was erroneous and

the advice to plead guilty was made prior to any real investiga-
tion in the case. Remembering it is Applicant's claim that refusing
to plead guilty is what initiated the conflict of interest, this
claim effects the entire writ application, not just the plea bar-
gain process, These errors have a cumulative effect on this att-
orney client relationship that resulted in a conflict of interestf
ln that manner, this plea bargain process and evidence can be con-

sidered cumulatively, if it rises to the level of error at all.
lSee`GROUND TEN. -

7

GROUND THREE: INCOMPETENCE AT TRIAL

Attorney Ray claims that Applicant' 'consistently attempted to
derail fhe trial process from the beginning of my appointment. "
Again this is false. Attorney Ray claims two grievances were filed
against him. He is correct. The initial grievance was filed, as
stated earlier, because he failed to even contact me in the first
. 6 months of his representation. The second grievance was filed after
my conviction based on his action at trial, Both have been requested
and will be provided immediately upon receipt. The record is full
of Applicant's mention of suicide, even before this false charge
was filed. The State called the ex-parte note(x-§) a "suicide note"
(VA; 130), The State inclosing arguments explained the whole case
to be the result of Applicant's mental issues based on (x-Z).
Mr.Ray specifically states Applicant became"unnerved" at page 9 of
his affidavit after Teresa Shaw started testifying. What exactly
happened when Applicant realized she was going to be allowed to tes-
tify this was her first time in this situation(V&: 49) and made to
look like she was more credible(Vé:&l) by the State, who was well
aware of the need to bolster her credibility, and there were no
witnesses or evidence dug up by this"attorney" to impeach her,ie,
Rickk and Shayna Armijo, or anyone else, Applicant began to be
unnerved and because the attorney refused to speak to him outside
llof_ the jury'slpresence, as he demanded, the unnerving.further.deve: mm_…
lloped into a hopeless dispair and an attempted suicide as opposed
to proceeding to trial on the false defense of Attorney Ray(AFF.
at 13). This unnerving beganwearlier when the attorney told the l
jury they would hear the Complainant testify that this case was`
about jealousy(Vé:ZO-Zl). not about the taking of the unwanted
v photograph. The record reflects, based on the testimony of the
Complainant, who the attorney never talked to prior to trial, that
this defense of attorney Ray was false and easily defeated by the
truth from the Complainant(V&: 40-41) among other cites as shown on
page one of Applicant's Memorandum. This was a complete breakdown
in the attornay client relationship and Applicant's ability to con-
tinue in this trial, a legal and actual conflict of interest. The
attorney admits at page 9 of the affidavit that he completely relied

on the "officer's testimony" and his "own observance of Joe" to

determin Applicant's competency. Attorney Ray never observed App-
licant after he left the courtroom knowing Applicant wanted to'talk
to him about the false defense being presented, including after
the attempted suicide. Applicant was held in a "padded cell". Any
competent and loyal attorney would have made an effort to check on
his client. And Attorney Ray only made a half-hearted request for
continuance, but only after agreeing this was a voluntry absence
(VA: 129-130). Attorney_Ray's last statement on page 9 is absolutely
true! He was not concerned with Applicant's competence to stand tr-
ial, even after admitting l was unnerved in his presence. lt is a
fact that Applicant returned the very next day, when some what co-
herent, and was chained and sat accross from the attorney with no
present ability to confer with the attorney in any manner during:
the completion of the trial. There is not a scintilla of evidence
to show Applicant indicated a desire to harm the attorney to man-
date this action. Furthermore, this seperation deprived Applicant
of the ability to know that the Attorney had elicited jail time ex-
traneous offenses, the only reason Applicant did not testify in this
trial, during his absence. This effectively denied Applicant the
ability to testify at the trial upon his return(V§: 11).

The realization that the only defense Applicant had faith in

proving his innocence at trial was just defeated by his own attor-

iney…and»theStatetaking~full~advantage\of~it,~was~the~cause~of…thisw~~w~m~H~

nervous breakdown. When the attorney never showediq)to speak to App-
licant, Applicant lost all hope and tired to kill himself. Applic-
cant wanted to testify and tell the judge what was going on, and
ultimately did so(x-S), which went completely ignored and the att-
orney was allowed to present_the defeated and false defense he alone

decided would be presented, by his own admission.

GROUNG SlX CONTlNUANCE
lt is appalling this this attorney attempts to pursuade this
Honorable Court that he simply mis-spoke concerning his failure to
properly request continuance. if this is allowed, adjudicating the
merits of a claim based on the record has lost all meaning. The Code
of Criminal Procedure and well known and setteled law establishes
that the request for continuance be in writing. Reasonable profess-

ional conduct required the request for continuance at that point

9

of this trial. lt is firmly grounded in the record, therefore nec-
essary to raise it on appeal. The request, if.properly.made, would
have likely been granted and the object to be gained is the reason
the attorney requested it, in order to compell Applicant to attend
his own trial. Applicant did return the very next day as soon as he
was able. A one day continuance was not such a delay in this trial
_topprejudice it. The very fact this attornay elicited 8 matters of
extraneous offenses while Applicant was not present demonstrates
this attorney did not want Applicant at this trial, especially after_
his attempted suicide and notification to the trial court that he
was presenting a false defense on Applicant's behalf. A short recess
and continuance are legally and meaningfully different to such a
degree this attorney's affidavit is appalling! ' b
GROUND SEVEN
v ELlClTATION OF EXTRANEOUS OFFENSES

This groundseven and the Statels introduction of this false
and perjurious affidavit, given the availability of the record for
both the attorney's and their review, prior to entry of this erro-
neous affidavit, amounts to no record developement of this ground
at all, as prescribed by the Court of Appeals on direct review.
This ground is sufficiently egregious to reverse this conviction

standing on itssown and also when it is considered in the totality

..of.theicase,ma~STRlCKLAND-REQUIREMENT,~it~not~only»demonstrateswthew~~w~w~-~--

ineffectiveness on the issue, it demonstrates Applicant's claim of
an actual conflict of interest. Furthermore, it cannotes either
intentional deception on behalf of attorney Ray or further"flying
by the seat of his pants" as Applicant claimed in (x-S). Either
way, this claim deserves proper record developement based on the
wellknownand inherently prejudicial introduction of extraneous
offense evidence during the guilt and innocence phase of a trial.
The prejudicial effect, in this trial, entails that it was after
the review by the attorney of (x-S) and after the Complainant,
State and Attorney Ray were all told by the Trial Court Judge atf
(V4:`1025that "jail time" testimony would not only violate the
Court's Motion in Lemine, filed by Attorney ray himself(X-lO), but
it would be "a mistake in this trial." This complained of multipIé

refrences,to certain behavior that could be termed extraneous mat-
ters committed by Joe , as Attorney Ray calls them at page 10 of

10

his affidavit, absolutely occurred in front of the jury! Teresa
Shaw never made refrence of jail time until after it was made per-
fectly clear to her and the State as well as Ray, not to do it at
(Vé: 102). All of this is proven by the record.

Mr.Ray at page 11 of the affidavit continues flying by the
Seat of his pants and without concern for the truth where he att-
empts to have this Honorable Court believe that the first instance
of "jail time" evidence was "blurted out so quickly that l was un-
aware of the limine violation." Not only is this incredible given
the discussion that had taken place at p.102 specifically about
jail time evidence and his own motion in lemine, but because any
reasonable attorney would notice it immediately considering he was
the one pacing the questioning, and his understanding of extrane-
ous offense evidence at trial has(X-lO). he then tries to pursuade
the Court that it was blurted out a second time right before lunch,
and he admits or claims it happened to quickly for him to catch it.
All eight of the instances Applicant complains about happen inbet-
ween (V&f 1947209),INFRONT OF THE JURY. Mr.Ray, after the Trail Cou-
rt Judge stops the line of questioning and calls it a "gratuitous"
and more and more gratuitous offering", indicating at least three
incidents, claims in his affidavit at page 11, that he then made
a strategic decision not to object afterrthe jury returned from

lunch- Any first Ys,a_r_a_t__.t.<>ril.¢¥.__.1.<.r19_w__S___, §h..at_;be_ _ proper _ time ,t.<>__. make ; __ _

an objection is at the time it happens in order to give the judge
the earliest opportunity to correct or give currative instructions.
These were not "vague allegations" of misconduct. this was an in-
tended introduction of extraneous offense evidence, out of Applic-
ant's presente, in order to bolster the State's case and attack
Applicant' character by the Complainant in a he said she said case
that Attorney Ray admits comes down to who the jury will believe

in this affidavit while explaining why he advised Applicant not

to testify based on Applicant's past~criminal record.(P.7x2,8,12
x2). There would have b§en no better time to attack the complain-
ant's version of the case and show the retribution he claims at
page 5 of the affidaivt than at the time she intentionally violated
the motion in lemine. The judge had already told everone that the

Objection would be sustained at(V&:lOZ). lt would have been!_This
mistake, under the circumstances may well have resulted in mistrial

11

‘currative instructions would have been given. This would have cast
the Complainant in a bad light, the attorney's claimed trial stra-
tegy at page 5 based on retribution. His.affidavit doesn't support
his own defense strategy and it is completely erroneous and usless
as it goes to record developement on this issue because of his "mis-
interpretation of the record." This is gross ineffective assistanoe»
of counsel. Applicant requests the ability to cross-examine this att-

on the record concerning his claims in this affidavit.

GROUNDS FOUR,FIVE, ElGHT AND NINE

The State,in their Answer at page 7,states that Appli#
cant "provides no explanation why he was prevented from raising th-
ese claim on Hirect Appeal", while employing a procedural bar.
These claims are raised "throught the appellate window" in Ground-l
twelve of the writ . ln fact Ground Four on incompetence is spec-
ifically argued in Ground112 of the Application and referrs to the
needr to raise the judge's failure to make an informal inquiry as
an ineffective ass.of counsel against the appellate attorney. lt
is preserved and meritorious as argued based on TCCP Art. 46B.001.
Applicant conceeds that Ground Five concerning the judge's failure
to grant continuance is not properly preserved. However, the claim
is substantially raised as ineffective assistance of counsel for
the failure to proper request continuance, respectfully. This issue
is’also raised'as ineffectiveness of appellate counsel'at ground'””“”"
thirteen because it is firmly grounded in the record.

Both Grounds Eight and nine are framed as Constitutional Viol$~
ations concerning judicial bias and cognizable on habeas for the
first time. '

Ground Eight is proven in great part byuAttorney Ray at page
13 of his affidavit. Mr.Ray confirms that the defense he presented
was his own and not Applicant's. Judge Estevez considered ex-
parte communications from Applicant(x-S) specifically informing her
of the attorney's false defense. Judge Estevez biasedly ignored the
complaint and proceeded in the trial knowing of the false defense
and conflict of interest. The continued trial quickly included the
jail time evidence, in front of the jury, that she had rejected at
(Vé: 102)(V4: 194-209). Yet she allowed it a number of times before

Stopping the trial. this was bias fueled by'Applicant‘s'ex-parte'
` 12

communication no doubt. Because Judge Estevez failed to comply with
T.R.CP.lS(a) and allowed the writ to be transferred before she took

the step that is ministerial, ie forwarding the motion to recuse-

to the Presiding dudge, constituting a Sec. 3(c) denial, of which
Applicant objected, that Sec.3(c) denial is void, respectfully.
Applicant has since received Att.-A to this Objection from the Judge;
and Presiding Judge respectfully. The dates of the letters prove
beyond doubt that Judge Estevez failed to properly perform her
ministerial duties and improperly adjudicated this writ application
thereby. The writ was forwarded to the CCA on Novenber 26,2014.

The Judge refused to recuse and was upheld by-the Presiding Judge

on December 4, 2014. this is further evidence of Judicial Bias and
refusal to follow specific and-legal mandates, just as she ignored
T.C.C.P.46B.00l in the instance of incompetence. Applicant will app-
eal the Presiding judge§s ruling to the Court of Appeals instantly
based on the fact that the grounds for recusal were not based on in
court rulings. There was no ruling on incompetence. lgnoring the
competence issue when thevCode 0f Criminal Procedural requires at
least an informal inquiry is the issue. Applicant does not take

his actions against a District dudge lightly, however, the issue
connects itself to the overall case to the point of forcing App-

licant to trial with unwanted counsel based on consideration of

landexzparte_communication (x-5), knowing of theipresentation_of.a M.….Wi

false defense. Applicant was denied ex-parte communication while
he was cuffed and held accross the courtroom after his return to
Court by this Judge. That is evidence of a conflict of interest

in and of its self, respectfully.

Applicant relies on Phillips V Woolford 267 F 3d at 988 in reques-
ting that the Court of Criminal Appeals remand this case back to

the trial court to be adjudicated by a new judge based on the facts
set out in Phillips above."Absent proof of personal bias 3 factors
determine whether a case should be remanded to a different judge;
1) Whether the original judge would reasonably be expected upon
remand to have substantial difficulty in putting out of hie/her

_mindereviously expressed views or findings determined to be err-

oneous or based on evidence that must be rejected;Z)Whether re-
assignment is advisable to preserve the appearence of justice,and
3)whether reassignment would entail waste and duplication out of
porportion to any gain in preserving the appearance of fairness
." id 1165 n5 of United States V Arnett 628 F 2d 1162,1165.

13

f/)

!')

applicant request remand and reassignment to a different judge
B§cause the necessary remand itself will require the judge to adj-
udicate this writ application after excepting ex-parte communi-

cation from Applicnat at trial that was offensive to her and the

afactnthat this~errone®usqaffidavit from the attorney must be reje-

cted, from attorney Ray, more specifically. The fact the judge has
already participated in the writ process, while under the motion
to recuse, demonstrates, by her Sec.3<c)denial, that the trial
Court relied on the erroneous affidavit. There has been no record
developement on the issue of extraneous offense worthy of belief,’
based on the.record.Respectfully. The appearance of bias is suff-
icient to warrant recusal. v
v "“"`" `m" eRoUND ELEVEN
:lNEFFECTlVE~ASSlSTANCE OF BROOKS BARFIELD

§round Eleven: Applicant simply advers that the ground was
incompletely briefed based on the record containg 8 not 2 instances
of elicitation of jail time evidence and that would have made the
likelihood of reversal on appeal more probable£ v

GROUND TWELVE:The trial judge's complete refusal to follow
T.C.C.P Art.46B.001 is firmly grounded in the record. lt is a
ministerial act and it was not performed. that means she did not
even mention the competence of Applicant after he attempted suicide

during trialn,lm . wl ,1~ h “",_w w w ,_ ".._11._

GROUND THlRTEEN: lt is a well known fact that an attorney muust
formally request continuance`by writing. Attorney Ray did not.
lt is incredible that the attorney'suboth attempt to pursuade this
Honorable Court that this was simply a misstatement. Recess and
Continuance have specific and meaningful applications. This re-
quest was for continuance not recess. Therefore, it was done in
a manner not consistant with reasonable professional judgement or
application. Attorney Barfield must make his determinations on
the appeal based on the record. The trial attorney said continuance.
lt was not properly made and would have been granted if properly
requested and it would have gained Applicant the one day necessary
to return after attempting suicide and the opportunity to speak to
this lawyer, which is what Applicant wanted in the first place,out
of the jury's presence. This is ineffective assistance of counsel.
Attorney ray did not want to speak to Applicant and this assured he

would not and did not. 14

lNMATE DECLARATION

1 doohereby swear under the penalty of perjury that the
statements contained in the above and foregoing document are true
to the best of my belief.

 

CERTlFlCATE OF SERVICE

BY MY SlGNATURE AND ADDRESSES LlSTED BELOW, l DO HEREBY CERT
lFY THAT A TRUE AND CORRECT COPY 0F THE ABOVE AND FOREGOING DOCU_
MENT :`WAS SENT THlS THE §QWDAY OF DECEMBER ,2014, TO THE ADD-
RESSES LlSTED BELOW BY T E TYPE OF MAlL lNDlCATED NEXT TO THE ADD
RESSES.

>l()?§PYP{[ `T§\lf? Y§(l$ 1

     

21 1 FM 369 N
a Park, TX 76367
Allred Unit

CERTlFlCATE OF COMPLlANCECERTlFlCATE OF COMPLIANCE

l hereby certify that this document complies with type face
requirements of TEX. R. APP. PROC. 9. 4(e). And it is less than 15 pages
in length.

District Attorney‘ \ {\Ao~y\

Warren Clark
Justice BLDG,2309 Russell Long Blvd\\ 1 94546

Ste.izo \21 1 FM 369 N
Canyon, Tx 79015(REG U.s.Maii) 1\¢, Park TX 76367

  

District Clerk, Jo Carter
2309 Russell Long BLVD Suite 110 _
Canyon, TX 79015 (Certified return receipt requested)

Court of Criminal Appeals

P.O.BOX 12308
Austin, TX 78711 (Reg U}S.Mail)

15

ATTACHMENT-A

Ange|a Johnson

Subje€t$ FW! #21,941-C STATE VS. JOSEPH DALE MOSS
At"tachments: 2151_001.pdf

From: Angela Johnson
Sent: Thursday, December 04, 2014 10:11 AM

To: Judge Ke|ly Moore
Subject: #21,941-€ STATE VS. JOSEPH DALE MOSS

Judge Moore,

I have enclosed a topy ofa motion to recuse filed by Joseph Da|e Moss, Cause #21,941-€. l decline to recuse
and l request that a judge be appointed to hear the recusal. '

Thank you,

Ana E. Estevez
251St District Judge-

Cc: Randa|l County District Attorney

Joseph l\/loss

Allred Unit

2101 Fl\/l 369 N

|owa Park, TX 76367

NINTH ADMIN[STRATIVE JUDICIAL REGION

 

Ke|ly G. MOOre 500 W. Main, Rm. 302W

Presiding Judge Bro\vnfleld, Texas 79316

kmoorc@lcrrycounl)-'. org

Clau_d§tf€ Busk€ _ _ rhone (806)637-1329
Admmlstratlve Asslstant ~ Fax (806)637-8918`
cbuskel@aol.com '

December 4, 2014

Jo Carter

District Clerk

2309 Russell Long Blvd., Suite 110
Canyon, Texas 79015

Re: _Cause No. 21, 941-C in the 251SI District Court of Randall County, Texas; EX PARTE
JOSEPH DALE MOSS ,

Dear Clerk:

In regard to the above, I enclose an original ORDER DENYING MOTION TO
RECUSE-SUMMARY DENIAL FOR NON-COMPLIANCE. Please file this among the papers
in this case.

Sincerely,

'=~'r~ 11 ' ."';f`<\,!"‘¢
f.‘F-.'r§‘~..§_"\;-‘,lr ,'_~.-:-U, §§

 

 

5`1'!,""'_"§ -'.5 ' ‘~" _" "'.,_.'..
ti\_,i.Uu'i.. A\A..;z!_¢r\ (L,i. :v."\]

Kelly G. Moore
KGM:djm

ccc Joseph Dale Moss
Randall County District Attorney
Hon. Ana Estevez

 

NO. 21,94‘|-C

EX Par'ie lN THE 251st D|STR|CT COURT

OF

CO)¢O)¢O)CO)W)W)

JOSEPH DALE MOSS RANDALL COUNTY, TEXAS

ORDER DENY|NG |\/|OT|ON TO RECUSE-SUi\/|MARY DEN|AL FOR NON-COl\/|PL|ANCE

On this 4th day of'December, 2014, the undersigned in his capacity as Presiding Judge of the
Nlnth Administratlve Judicial Region, considered the l\/|otion to Recuse filed by Applicant herein. 1

The |\/lotlon was considered Without hearing. The undersigned finds that the l\/lotion fails to
` comply Wlth the mandatory requirements of Ru|e 18a, Texas Rules of Civi| Procedure and sets
forth no factual allegations that Would be admissible in evidence and that, if proven, Wou|d be
sufficient to justify recusal. The court further finds that the motion is based solely on .the judge’s
rulings in the case. See Rule 18a (a) (2), (3) and (4), TRCP. '

|t is ORDERED that the Applicant's l\/lotion to Recuse is denied

 

 

 

 

(U

Dated: December4, -2014 Ke|ly G. l\/|oo
` Presiding Judge of the Nlnth Administrativ

Judicia| Region

