                              Civil Action No:   12-02-0185-CVA

                           Court of Appeals No:    04-14-00611-CT




DAVID ALLAN EDWARDS #907246

ELLIS UNIT,     1697 FM 980

HUNTSVILLE,     TEXAS 77343
                                                                                               - _.-■


        APPELLANT                                                IN THE FOURTH
                                                                                               '":      ",-n
                                                                                                          (-7
                                                                COURT OF APPEALS
          -V-                                                                                    i
                                                         JUDICIAL DISTRICT OF TEXAS_

COUNTY OF ATASCOSA,       DISTRICT                           SAN ANTONIO, TEXAS -sJ"           T3


ATTORNEY OF ATASCOSA
                                                                                    .   -■ i   u\
                                                                                               CD
        APPELLEE




APPELLANT'S RESPCMJSE TO APPELLEE DIS'IBICT ATTORMEY OF ATASCOSA COUNTYS FILING


                                            OF BRIEF




TO HONORABLE JUDGE OF SAID COURT,


Now comes DAVID ALLAN EDWARDS,        who is indigent and acting pro se.         Appellant is


incarcerated      at   the Ellis Unit located in Huntsville, Texas and will explain

as   follows.




In Appellee's Introduction he explains as argument that Appellant has failed to

attack the grounds inwhich the judgement was granted and also fails to include

a point of error. Appellant totally disagrees and will show as follows. The st

atute relied on does not apply to this suit             or the evidence that is in questi

on EXTRANEOUS OFFENSE REPORT and the NEGLIGENCE of Appellee using said document

in a manner inwhich it was not made to be used dictated by law and statute.The

re   is no statute of limitations concerning FRAUDULENT CONCEALMENT and CONTIN

UING HARM under Texas Deceptive Trade Act,Tort Laws. See SHAH V MOSS 67 S.W.3d

at 836/841.      Fraudulent    Concealment    will toll the statute of limitations for

negligence      claims.   Appellant   has    provided    this    argument in his objection
 at     hearing        held    on May 9, 2014 and in his filings. See [RR,pg25,15-20,pg26,

    12-25,pg27,1-18,pg33,17-25],[RR,pg36,9-11]Objection                     for   not   being   allowed

    to call witnesses to testify as to the fraudulent nature of EXTRANEOUS OFFENSE

 REPORT.        Appellant       has    in concise language stated his legal right to tolling

 in every document he has filed. See Supplement 69,80,566 Objection to Defendant

 District       Attorneys       Motion     for Summary Judgement (Apr 16,2014), It is of re

cord      in the transcripts of the hearing. Appellant made it clear in his Motion

For New Trial.           Appellant has included it in his Brief.MARTIN V CATTERSON                 981

S.W.2d at 222,TEXAS DECEPTIVE TRADE ACT,17,39-50,WILLIS 760 S.W.2d at 642, and

STREBER 221 F.3d at 701. Fraudulent                   Concealment      is   equitable doctrine that,

when properly envoked, estops defendant from relying on statute of limitations.

CASEY V METHODIST HOSP 907 S.W.2d at 898."                     Judge   has duty to disclose negli

gent     act     or     fact    that     injury     has occurred, and limitations provisions DO

NOT ABOLISH FRAUDULENT CONCEALMENT as equitable estoppel to defense limitations

under that statute.




Hearing        Court     failed       in its duty to be fair and impartial. [RR,pg 27,1, "SO

WHAT!"].It        was never a legal question as to Appellant's argument defending the

statute relied on by             defendant     as    it     SHOULD   HAVE NEVER been allowed to be

filed     as     defendant/appellee never answered appellant's No-Evidence/No-Answer

Defaults.        The     hearing      court   avoided       that   ruling and acted as if He Judge

Lee ,was one of the defendants. IN RE KLEVEN 100 S.W.3d at 644. Refusal to rule

+     Objection,       The     trial court failed to rule or refused to allow Appellant's

objections        and arguments and failed to investigate appellant's claims. Appel

lant     made     timely       objections at hearing and within his pleadings to preserve

his     right     of    review on law and statue of Fraudulent Concealment. The merits

of appellees arguments land II are not supported by law or fact.



                                                      (2)
                                                                II




Appellee          contends           in     his    argument         number       III that Appellant cannot bring

up later          additional              issues     as     error     on     appeal if they were not presented

at     hearing       on        summary        judgement.        This       is contrary to law and statute and

I will explain as follows.



A     Motion      For New Trial preserves error when filed timely containing new evi

dence       NOT    CONSIDERED AT SUMMARY JUDGEMENT HEARING and requesting relitigation

of issues,See BARRY V BARRY 193 S.W.3d at 72,74. It is not the fault of appel

lant       hearing court failed to read and rule on Motion For New Trial containing

new     evidence,see             Original          Brief,exhibit           (B)     attachment (C) Objection to a

lack of full Habeous Hearing/OBJECTION TO EXTRANEOUS OFFENSES,dated 12/15/2003.

By     rule      and statute these objections and new evidence is preserved for appe

llate       review        with       the      filing        of a timely MNT. See In re KLEVEN 100 S.W.3d

at 644,CITY OF HOUSTON,589 S.W.2d at 671,678.



As     explained          in     MNT. Appellant of no fault of his,was denied access of this

information,evidence                   and     had     no    way to bring it into the hearing. Any type

argument         concerning            same without it at hearing would have been a moot point.

The    appellee speaks to the point of knowledge and diligence as to any tolling

of    limitations           and        I will also make of record my diligence and why there was

in appellee opinion a lack there of.                           Because        of    the   sentence   handed   down

to    me     a    first         time        offender, using          of the fraudulent extraneous offenses

by    jury       caused         me     to    be     sent to a super max unit. I having never been in

prison       before        was       put     with     the worst of the worst. I had to defend myself

and    landed        in     Administrative                Segregation        in early 2000. I did not get out

of    Ad/Seg       until         late       2010,through a special program. I, a year later filed

my    law     suit        for    Due        process       violations.         In solitary I was not allowed a


                                                               (3)
true        access          to      courts.     I was delivered ONE case three times a week if I was


lucky           and     I     had      to     know the name of the case. Any books I requested I had

to know the actual                    page and article I wanted to review as they would copy that

if        and    when they had time. I was not allowed any legal books in full to read

to        find        other      cases.        They    discouraged any legal research through a method

of constant denial. I                        now   have     real time ability to read and research five

days       a week. It was not by my choice in any delay. I have pursued this matter

with extreme diligence as money and ability has allowed. This is not an excuse

just an explanation and hopefully it                           will be taken into consideration.



The       new     evidence will bring to light a new and independent truth so decisive

that       it     demonstrates               justice    was    not obtained. WAFFLE HOUSE 313 S.W.3d at

813,JACKSON 660 S.W.2d at 809. The                            new    evidence brings to light an OBJECTION

that       was        made       and preserved as error by a Habeous Court. This Objection was

NEVER       brought           to       conclusion      or     ruled on. This OBJECTION was made in 2003.

»     A    contemperaneous                   objection is required to preserve "LONG ERROR" for pur

pose       of         obtaining         collateral        relief."      Ex   parte Crispen 77 S.W.2d at 103.


The        introduction               of this evidence would have negated the alleged affirmative

defense           Appellee            relied on and hearing court ruled on. This showed an objec

tion preserving LONG ERROR in 2003.Appellant                                 right   to   tolling   comes in two
parts.           1)     being          the    fraudulent      concealment doctrine prescribed by law and

statute           where          the     very nature of extraneous offense document is fraudulent,

until its been made true and reflecting the facts that evidence supports. 2 )
The        LONG        ERROR        and      the Objection made in 2003 as supported by new evidence

contained              in     the       timely     filed    Motion      For New Trial.      Appellant has shown

due        diligence             in     pursuing      his   due     process and civil rights violations by

appellee. Argument number III is not supported by law or fact.



                                                                  (4)
                                                                Ill



 Appellee        states      that      his     service          to     Appellant was timely as it was filed

 on    May      2,2014      and     that      his Response to Appellants No- Evidence/No- Answer

 Defaults       did not have to be served upon Appellant only filed seven days prior

 to hearing.Appellant was sreved on May 9, 2014 at 3pm after hearing.



Appellant           objected      at    hearing       and        in     his Motion For New Trial preserving

his     right of review on appeal. Appellee told the hearing judge that he mailed

his     response          to Appellants last known address Ellis Unit, Huntsville, Texas.

Appellee        used       deceptive       tactics         to     sway the opinion of hearing Judge Lee.

Appellee        was well notified of appellants new address. See exhibit (B) attach

ment     (D)     letters       from      Deputy       Clerk           Estrada #6,7,8,9 ).     The law is clear

on this issue. It states " FILED AND SERVED" atleast seven days before hearing.

Me CONNELL V SOUTHSIDE,ISP 858 S.W.2d at 337,343.                                 There are two parts, FILE S

SERVE !, appellee             filed      on    time        May 2, 2014 BUT failed to serve           appellant

in a timely manner. May 9, 2014 at 3pm after said hearing had concluded.


Second       issue        appellee      failed       to     discuss is who signed for this service of

Response        document ? The law is clear on this issue to. HARMON TRUCK LINES,INC

v STEELE, 836 S.W.2d at 262.                   "     When       signature        was   not plainly the agents,

SERVICE WAS NOT ADEQUATE." PRIMATE CONSTR,INC V SILVER,884 S.W.2d at 151, 152,

      Primate       over-ruled         those       cases     . and         held the record must affirmatively

show     that       the    person served was in fact the registered agent."                        To compound

matters      further        appellant         was    never           served    and never signed for District

Attorney's          response      Motion.      Appellant              is    acting pro se and is intitled to

all benefits intitled to a freeworld lawyer. Appellant has NO AGENT or REPRES

ENTATIVE       OR     HAS APPOINTED ANYONE WITH HIS                        PERMISSION to sign for any certi

fied legal mail. So who signed for this document acting as an agent for appel-

                                                            (5)
 lant. The law is clear on this issue to.FALSIFYING RETURN: "A person knowingly

 or     intentionally                falsifies a return of service may be prosecuted under Penal

 code,        chapter           37    for        tampering with governmental record. CPRC § 17.030(d).

 Not     only        was        appellant             given       the District Attorney's Response Motion LATE

 on     May     9,     2014          at     3pm AFTER SAID HEARAING HAD CONCLUDED denying appellant

 the     ability           to     prepare             a    defense but, also someone unbeknown to appellant

 falsified           the        service          of       Response       document    by signing for it as an agent

 of     appellant.          Appellee's                argument VI cannot be supported by law or fact and

 appellant           request          this       court to investigate this matter further as a result

 of these irregular actions by appellee and produce the green certified card to

see if        appellants signature is present on said item. If not then by law ,said

motion should be over ruled and remanded back.



                                                                        IV




Appellee argues in VI that appellant is not allowed to present any testimony at

hearing.        Appellant              disagrees             and     will explain as follows. In order to show

that     a     deprivation                of     witness           testimony amounted to a violation of a       6th

amendmant           right        to       compulsory              process,appellant      must   make some plausable

showing        of     how        their         testimony would have been both material and favorable

to     his     defense.              USCA      Const         Amend      6, US V VILLANUEVA 408 F.3d at 193, 126

S.Ct     268,546           US,910,163,L.Ed                   2d    at    241.     6th Amend, 14 Amend/due process
Art l,$10, Texas Const,"confront witness".



The     witnesses           subpoena'd                were    names the appellee District Attorney used on

his     fraudulent              document          extraneous            offense     report stateing that appellant

either       assaulted them                 or        aggravated         assaulted them. This document was then

given     to     a     jury          to     assess          appellants punishment by. This was illegal and

direct         due    process             and         civil rights violations, causing egregious harm to

                                                                        (6)
    appellant. These witnesses were in support of appellants No-evidence/No-answer

    defaults           that        should have been the only thing ruled on at hearing concerning

    appellee          District          Attorney             as    all        other documents wre not timely filed or

    served       upon         appellant.               These      witnesses       would     provide the evidence needed

 by        way     of        testimony            that       would       refute the document entered into evidence

 by        District Attorney                      as     true and correct. Appellee had failed to answer or
 provide           any       evidence             in     support        of the extraneous offense report and this

 testimony             by        the    people named on said report was needed. Until this is done

 knowledge             is        not    the same as knowledge supported by facts and evidence i.e.

 testimony by the very people named on extraneous offense report. It is a right

 to be confronted by witness and a due process violation if not allowed.


 (Tex App-San Antonio 2000) " Defendants                                       right   to   subpoena   witness   in   his

 favor        arise          out       of        the     United      States Const 6th Amend right of compulsory

 process           and       the State Const provision that criminal, defendants have a right

 to        compulsory             process          for       obtaining         witnesses, and the 6th Amend right to

 compulsory                process          in    plain        terms      the right to present a defense, and the

 right        to       present the defendants version of the facts as well as the prosecu

 tions       to        the       jury       so     it may decide where the truth lies."USCA Const Amend
6     Vernon's              Ann,       Texas       Const,         Art     1,510     SUAREZ V STATE 31 S.W.3d at 323.

"Right           to        confrontation               by cross-examination is fundammental constitutional
right." THOMAS V STATE 897 S.W.2d at 539, Crim Law 662.7



TRE        806, When hearsay statement, or a statement defined in Rule 801(e)(2)(c),

(D} or           (E) or in civil cases a statement defined in Rule 801 (e)(3) has been
admitted           into          evidence,         THE       CREDIBILITY OF THE DECLARANT MAY BE ATTACKED.

      IF    THE        PARTY AGAINST WHOM A HEARSAY STATEMENT HAS BEEN ADMITTED CALLS THE

DECLARANT             AS     A     WITNESS,            THE     PARTY IS ENTITLED TO EXAMINE THE DECLARANT ON


                                                                        (7)
 TOE     STATEMENT                 AS   IF UNDER CROSS-EXAMINATION." VICTOR M. SOLIS UNDERGROUND

 UTIL & PAVING Co. V CITY OF LAREDO.751 S.W.2d at 532,537 .TANGIBLE ITEM USED
 FOR A SPECIFIC PURPOSE,?101.021(2)



 Proof of            Authenticity,Document Extraneous Offense Report, " Authentication

 is established by evidence that the matter in question is what its proponent
 claims        it        to        be." TRE 901(b)U); In re G.F.O. 874 S.W.2d at 731," A docu
 ment     is        considered           authentic       if (2) a sponsoring witness vouches for the
 documents authenticity ."



 Appellee       has           repeatedly        avoided       any     attempt   to present any evidence in

 support of extraneous offense report. This is why appellant issued subpoenas

 to fact witnesses to either authenticate or refute the validity of extran
 eous offense report.                   The     denial    of        testimony   by   hearing judge violated

appellant's              due process rights established by law and statute. The appellee

District        Attorney DID                  NOT    OBJECT     to said testimony and would be to late
to do so now.




Appellee's           document           extraneous       offense       report is mere inference as it is
NOT     supported              by any facts or law. It is NOT of any public record or crime
supported           by        record     or    any    final     conviction as it reports items 3 thru

20.     Pursuant              to    Rule 404,609. "Facts from which an inference may properly
be drawn must be established by DIRECT EVIDENCE not by other inferences."
MERCK & Co.,Inc V ERNST,296 S.W.3d at 81.


It cannot be said that appellant failed to pursue his claim as he had knowl

edge of false extraneous offenses as it takes more than knowledge to confirm
that argument.                It takes evidence through testimony and appellant was denied


                                                              (8)
this ability by hearing judge.




THAYER PRESUMPTION


A    presumption that requires the party against whom the presumption operates

to     come     forward          with evidence to rebut the presumption, but that does not

shift the burden of proof to the party.                          Fed.R. Evid 301




Appellant has repeatedly requested evidence in support of extraneous offense

report        from    appellee           District     Attorney.      Appellee      has failed to provide

anything        in    support          of     this   document. It is my request          that this Court

make ruling          as     to     the      credibility and reliability of this document. That

a    declaration           be made as to the findings of this document and that injunc-

tive     relief       in    the        form of a policy that a document of fraudulent nature

never     be     introduced            into    an    Atascosa      County proceeding by the District

Attorney        of    Atascosa County, Texas.                This will satisfy my Due Process Com

plaint. The          testimony denied appellant was crucial to both appellants abil-

ilty     to     confront         witness       and    to satisfy the requirements of evidence in

either        support      of     or     denial      of    the document extraneous offense reports

reliability          as    being true and correct. Appellee's argument VI on testimony

has no merit in law or fact.




                                                     CONCLUSION



What     is knowledge with out evidence or being denied the ability to develope

evidence        in    support of knowledge . This in law is considered a Due process

violation        directly          affecting         the   operation     of law and denying appellant

his rights guaranteed by the 6th and 14th Amendments. Appellee trys to divert

this     courts       attention away from the true nature of this complaint. Fraudu-


                                                           (9)
 lent Concealment of the true facts supported by evidence is being with held fr

 om Appellant concerning               the     extraneous      offense        report. Appellee is stating

 Appellant       is        trying to relitigate his criminal proceedings in this complaint.

Nothing      could         be     further from the truth as this Court cannot free Appellant

or     lesson        Appellant's       time     through any civil litigations. No, Appellant is

pursuing        Due process and Civil Rights violations done him during his sentenc

 ing    phase        of    his    trial,      caring   nothing about a conviction              pertaining to

same.    There are laws and statutes that dictate the order of things in a court

proceeding           and    Defendant      District     Attorney, and          his i.e.,Prosecution Team

violated these rules and statutes DEPRIVING                        Appellant       of    his   Due    Process

and Civil Rights guaranteed by the 6th and 14th Amendments. These violations ,

happened        in     a criminal proceeding but, the correct venue for addressing such

matters are in a civil court as these are civil violations.



FORD MOTOR COMPANY V RIDGWAY,135 S.W.3d at 598,601, Evidence that does no more

than    create mere suspician of existence of a fact,in legal effect,NO-EVIDENCE

"The document labeled extraneous offense report 3-20 are not supported by                                 any

existing evidence or fact. GUERRA V JOHNSON 90 F.3d at 1075(5th) False eviden

ce, testimony, use of perjured document not corrected,6th,14th USCA violation. A

prosecutors          DUTY       to correct known false evidence,See MOONEY V HOLOHAN 294,US

103,55 S.Ct,340,79 L.Ed 791,Texas Disciplinary Rules of Professional                                 Conduct,

3.04,3.09 Art 2.01 V.A.C.C.P.Criminal Law 706(2),1171.8(1)



ALLEYNE V UNITED STATES,133 S.Ct.2151(2013), "                          The    essential    point that the

aggravating          fact       (EXTRANEOUS     OFFENSE       REPORT)     produced      a HIGHER RANGE, It

must, therefore, be submitted to the jury and found beyond a reasonable doubt."

When    an   ALLEYNE violation occurred, the defendant's sentence was UNCONSTITU

TIONALLY     ENHANCED            by the number of years that the sentence exceeded 5 years.



                                                       (10)
Appellant was sentenced to 40 years with a minimum of 5yrs,harm exist by                                    the

submission of this fraudulent document to appellant's jury.State Law must meet

or      exceed           Federal Law,HEITMAN,815 S.W.2d at 681,18 § 4241-4247.                     "Texas Law"

CPRC     §     101.021(2),"            The        use   of tangible personal property occurs when the

property        is        brought      into       action       or     is employed for a given purpose." The

extraneous offense report was used by Appellee District Attorney to enhance the

sentence appellants jury assigned as punishment in violation of clearly estab

lished        State and Federal laws. " Liability has been imposed when the injuries

are     alleged           to    have proximately resulted from the negligent use of property

in     some    respect          deficient          or    in     appropriate for the purpose for which it

was    used.HOPKINS 707 S.W.2d at 325,327. Falsification of evidence Obstructing

Justice        ^9,15,18-20             US     V CIHAK 137 F.3d at 252. ,VASOUEZ V STATE 67 S.W.3d

at     229,     "        Even   when        the    prosecutor does not instigate the perjury, he is

obligated           to     correct      any perjured testimony given by one of his witnesses."

GRUNSFIELD          V     STATE      843     S.W.2d      at 521, Gov't Code § 311.023(3) Venn,Tx CCP

art 37.07,$3(a) "Evidence                    of     extraneous         offenses     "UNADJUDICATED"     WERE NOT

admissible during punishment phase at trial for noncapital offenses. Rule81(b)

(2).




CALDWELL V BELL,288 F.3d at 838,                        "Instructions        that   tells   jury   to   presume

any element of a crime WITHOUT evidence violates the 14th Amendmant DUE PROCESS

GUARANTEES.               See    exhibit          (B)   Motion        For   New trial attachment (Charge to

COURT). SKINNER V SWITZER 131 S.Ct at 1289(2011) "When a judgement in favor of

the    plaintiff           would       necessarily            imply    the invalidity of his conviction or

sentenc,42          U.S.C.S.S          1983, is not a available remedy but, if the plaintiff's

action, even if successful, will not demonstrate the invalidity of his convic

tion    the     §        1983    action should be allowed to proceed.                   IT SUFFICES TO POINT

OUT    THAT     SWITZER          HAS    FOUND NO CASE,NOR HAS THE DESSENT, IN WHICH THE COURT


                                                              (11)
HAS     RECOGNIZED          HABEOUS      AS    THE SOLE REMEDY, OR EVEN AN AVAILABLE ONE, WHERE

THE     RELIEF         SOUGHT    WOULD        "NEITHER TERMINATE] CUSTODY/ACCELERATE THE FUTURE

DATE     OF       RELEASE       FROM CUSTODY, NOR REDUCfE] THE LEVEL OF CUSTODY1 DQTSON 544

US at 86,125 S.Ct at 1242, 161 L.Ed 2d at 253



This     is       a    Due Process Complaint addressing the violations done to Appellant

during        his      sentencing     phase      of    his     criminal trial. These Due Process and

Civil Rights Violations are being addressed in a Civil Court of law as dictated

by     law    and       statute. Appellant has only asked for declaratory and Injunctive

relief       as       stated in the pleadings and prayers. Not any reversal of any crim

inal     conviction.            Appellant       has    stated it clearly and concisely in law and

statute.          Fraudulent       Concealment        Doctrine under Texas Tort Laws toll statute

until said time a declaration                   is    made     that   states the credibility and reli

ability       as       supported    by evidence concerning the document extraneous offense

report and its true nature. Appellee's                        arguments and conclusion hold no merit

in law or fact.            Appellant      urges       this    Honorable   Court   to investigate this

document       in       question    and       to report the facts satisfying the declaration and

injunctive relief sought by appellant.CHAPMAN V MARATHON MFG Co. 590 S.W.2d,549.

                                                       PRAYER


WHEREFORE         premisses       considered         Appellant prays this Honorable Court Reverse

and    REMAND          this action for a full and fair review investigating the document

EXTRANEOUS            OFFENSE    REPORT,GRANTING        all the relief the Appellant is intitled

to, Making ORDER for bench warrant so Appellant can attend.



                                                                      Respectfully submitted


                                                                              Q
                                                                      David Allan Edwards #907246
                                                                      Appellant/pro se
                                                                      Ellis Unit, 1697 FM 980
                                                                      Huntsville, Texas 77343
                                                       (12)
                                            DECLARATION


1 DAVID ALLAN EDWARDS, declare under penalty of perjury pursuant to § 132.001

CPRC,     that I have read and subscribe to the above and I swear that the infor

mation        contained   therein     is   true    and correct to the best of my knowledge.



Executed on 1 -fT^lS"             at the Ellis Unit, Huntsville, Texas .



                                     CERTIFICATE OF SERVICE



1     DAVID    ALLAN   EDWARDS,      hereby certify under penalty of perjury that a true

and     correct    copy   of   the Response to Appellee's Brief, has been provided to

the     Deputy    Clerk   of   The    Fourth      Court of Appeals, with request that   said

Clerk    please     provide    all    interested parties a copy. Document is being sent

via USPS this ptS"^\S             day of January 2015,via postage paid envelope.




                                                                 Ol.
                                                       David Allan Edwards H 907246
                                                       Appellant/ pro se
                                                       Ellis Unit, 1697 FM 980
                                                       Huntsville, Texas 77343




                                               (13)
                                       January 5,   2015




Fourth Court of Appeals
                                                                                               1       -1   • —i



Deputy Clerk,   Luz Estrada    #3219

                                                                                        '■ ~
                                                                                                   1
E: Filing Response Brief 04-14-00611-CV                                                        en

    District Attorney,Atascosa County
                                                                                  ■   r^



                                                                                               CD
Dear Deputy Clerk,   Estrada




    Please find enclosed my Response Brief , please file. Thank you for your

help in this matter and please provide a copy for all interested parties.




                                                        Respectfully yours


                                                           -LWiA Q.
                                                        David A.   Edwards   0 907246

                                                        Ellis Unit,   1697 FM 980
                                                       Huntsville, Texas 773^3
                                                       Appellant/pro se
