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Dave D. Greer #1829754
wayne Scott Unit
6999 Retrieve Rd
noelon m
@OUHTOFCR|M|NAL AFFEALS
August 28, 2015 SEP 03 zms

Court of Crimina] Appeais _
Abel Acosta , Cierk Ab@m@@$?a,©g@rk

Supreme Court B]dg,
201 w. 14th St Rm 106
Austin, Texas 78711

Re: EX PARTE DAVE D. GREER wRIT NO. 12-03324-CRF-272-A.

Dear Mr. Acosta;

Piease find enclosed appiicant's two motions entitied: "Appiicant's
Objections To The New Presiding Judge's 0rder To Transmit Habeas Corpus Record
which Simultaneous]y Circumvents The Honorabie Kyiy Hawthorn's 0rder Designating
Issues." The second motion entitied: "Appiicant's Motion To Recuse The Honorable
Travis Bryan III Pursuant to Tex.R.Civ.P. Ruie 18a From Any Further Proceeding
Dealing with Applicant's 11.07 Habeas` Corpus. P]ease file these motions in the
above and entitied case. I want to thank you in advance for your time and kind
attention in this most urgent matter.

§;::pectf(liy requested,

ave D. Greer

wRIT NO. 12-03324-CRF-272-A
EX PARTE v § IN THE CRIMINAL DISTRICT
§ 272nd JUDICIAL DISTRICT
DAVE D. GREER §. BRAZOS COUNTY, TEXAS
APPLICANT'S MOTION T0 RECUSE THE HONORA§L§ JUQ§§ TRAVIS §B!AN III
PURSUANT T§X.R.CIV.P. RULE 18a FROM ANY AND ALL PROCEEDING
_ DEALING wITH APPLICANT'S 11.07 HABEAS CORPUS

TO THE HONORABLE JUDGE OF SAID COURT;

COMES NOw, DAVE DUANE GREER, Applicant herein and in support of this motion
will show this Honorable Court the following:

l I.

Right before the jury was sworn in, during a hearing in open court,
concerning the fact that trial judge Travis Bryan III, had previously
represented applicant l in a criminal case as a defense attorney. wis
representation (was unsuccessful) as his representation resulted in applicant
being convicted. Travis Bryan III stated for the record “and if either side
wants me off the case, I'll willingly recuse myself..." Vol.4 P.8 L.12-13.

Applicant was of the belief that when he filed his original application of
habeas corpus 11.07 which cited nwnerous allegations of constitutional
violations and improprieties of Travis Bryan III himself during and before trial
even began concerning his actions and inactions by personally violating
mandatory statutes, as well as known rules of evidence and procedures. which
made it obvious that he could not unbiasedly judge his very own credibility as
to if and why he violated these numerous rules, procedures and
statutes. Therefore, it would be virtually inmossible for this judge to provide
an impartial findings of facts and conclusions of law. Then there after make an

unbias recommendations for the fair disposition of this habeas corpusg

application.

II.

In support of_ Applicant's belief in the willingness of -Judge Bryan to
recuse himself when placed into a questionable situation, is the duly 6, 2015
Court Order that Designated "Issues of Fact To Be Resolved." That was signed
yinto effect,l by the Honorable Kyle Hawthorn as "Presiding \Judge" another
District dudg_e. Applicant naturally believed that dudge .Travis Bryan 111 had
voluntarily recused himself by allowing a new, impartial and unbiased District
Judge to act as the kresiding Judge over the whole Habeas Corpus proceedi‘ngs.

III.

Judge Hawthorn ordered Both Trial Counsel and Appellate Counsel to submit
affidavits by no later than 0ct. 6, 2015. we also ordered the District Clerk of
Brazos County to withhold preparing and transmitting the record to the Court of
Criminal Appeals until further order of this Court."

dust image Applicant's shock and awl, when over a month prior to the
aforementioned attorneys' affidavits being received, he instead received on
August 24, 2015 an "()rder To Transmit Habeas Corpus Records," signed by Travis
Bryan III. This order was dated August 17, 2015 which included amazingly that
there now miraculously existed no factual issues requiring an evidentiary
hearing and have heard the application and considered, this court magically
hereby orders the District Clerk to of Brazos County to prepare and transmit the
record herein to the Court of Criminal Appeals with a recommendation that the
application be DISMISSED." SIgned,b_y Travis Bryan 111 \JU[)GE PRESIDING.

IV.
Applicant's motion to Recuse`dudge Travis Bryan 111 under Rule 18a(a)

technically is untimely because it is not filed at least 10 days before the '

hearing. However, Applicant had no prior notice that dudge Traivs Bryan 111 was - -

going to magically appear to "hear and consider" Applicant's 11.07, on August

 

.,..:_.:-.. ~. -

17, 2015 Applicant only obtained knowledge of this after  the fact when he" “

actually received the aforementioned order on 8-24-15.

where the movant in a motion to recuse does not receive 10 days notice of
the hearing on the matter for which he seeks to recuse the judge, the. 10 day
request of rule 18a(a) supra can not apply. Metzger v. Sebek, 892 S.w.2d 20,49
(Tex.App.~Houston [1st Dist.] 1994).

V.

dudge Bryan has a self-serving interest in having this Habeas Corpus
Proceeding DISMISSED without having the actual substance and lnerits
addressed. In the interest of justice, simply read the original 11.07
application along with corresponding 50 page Memorandum of Law.

£R_AlE_R’

Applicant prays Judge Tavis Bryan 111 recuse himself and all further
proceedings be referred as well as this motion itself to the presiding District
Judge. So that it may be reassigned to an impartial and unbiased judge to hear
this motion. In the event Judge Travis Bryan III is recused or removed from
participating hi these Habeas Corpus proceedings Applicant prays the present
complained of order be rendered VOID and rescinded and any and all orders and

recommendations rendered by Judge Travis Brayn III be ruled a legal nullity.

Respectfully submitted,

_£L,
ave D. Greer #1829754

wayne Scott Unit
Retrieve Rd.

Angleton, Texas 77515

 

CERTIFICATE OF SERVICE

I, hereby certify that a true and correct copy of this document has been

sent to all parties in this cause by addressing a copy to: District Attorney,

3

 

Mr. Jarvis Parsons, 300 E. 26th Street, Suite 310, Bryan, Texas 77803; The
Brazos Co. District Clerk, Marc Hamlin, 300 E. 26th St., Suite 1200, Bryan,
Texas 77803, the District Clerk of the Court of Criminal Appeals; Abel Acosta,
Supreme Court Bldgg 201 W. 14th St. Rm 106, Austin, Texas 78701-1445, by
placing a copy of the same in the U.S. Mail postage prepaid on this élgtié`

day of August, 2015.

Dave D. Greer

wRIT No° 12-03324-cRF-272-A
Ex PARTE § IN ins cRIMINAL brsrchT
§ '272na JUDICIAL DISTRICT
DAvE 'D. GREER ' § BRAzos couNTY, TExAs
APPLIcANT's osaggTIoNs To THE new PREsIoINa Juer's oRoER To TRANSMIT

 

HABEAS CORPUS R§CORQ leCH SIMULIAN§OUSL! CIRCUMV§HIS TH§ HONORABLE
K¥LE HAwTHORN'S ORDER g§$lGNATIN§¢ISSUES
TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOw, DAVE DUANE GREER, Applicant herein and in support of this motion

will show this Honorable Court the following:
I.

Applicant did not receive a copy of the contested order until Monday
"8-24-15 at approximately 12:20PM. This fact can be verified by the wayne Scott's
Unit legal mail room log. This motion is now being placed in the prison mail box
on 8-28-15 with the proper postage and address therefore, it's timely filed in
accordance to the Supreme Court's ruling in Houston v. Lack, 108 S.Ct. 2379
(1989). Also in compliance with Tex.R.App°Proc. Rule 73.4(b)(2).

It seems the only way an appeal's court will overrule a lower court"(s)
ruling or .recommendation is by establishing the ruling or recommendation
represents an abuse of discretion.

STANDARD OF REVIEw:

"CASEY V. STATE, 215 S.w.3d 870,879 (TEX.CRIM.APP. 2007)("A TRIAL COURT
ABUSES ITS DISCRETION wHEN ITS DECISION LIES OUTSIDE THE ZONE OF
REASONABLE DISAGREEMENT. GREEN V. STATE, 934 S.w.ZD 92, 101-102
(TEX.CRIM.APP. 1996)). SEE ALSO RAMSEY V. CRISwELL, 850 S.w.ZD 258,259
(TEX.APP.-TEXARAKANA 1993)(AN ABUSE OF DISCRETION OCCURS wHEN A COURT
ACTS wITHOUT REFERENCE TO GUIDING RUl.ES OR PRINCIPLES OR ACTS
ARBITRARILY OR UNREASGNABLLY. DOwNER V. AOUAMARINE OPERATORS INC., 710
S. w. 20 238, 241 (TEX.1985)). "

The Honorable Travis Bryan 111 was previously hired by Applicant as his

attorney to represent him as a criminal defense attorney. dust ininutes before

the jury was sworn in ( e.g. before trial officially began) Judge Bryant 111
acknowledged that his biasness may very well be questionable by agreeing on the
record to recuse himself if any one so desired him to do so. Vol.4
L.10-13. Applicant remembered the complications of his representation but only'
agreed to not seek his resucal at trial based upon the advice of counsel. Yet
due to the numerous incidents of dudge Bryan 111 abusing his discretion during
trial and the numerous allegations applicant alleged against him in this 11.07
applicant fully intended to file a formal motion to recuse him from the habeas
proceedings. This proved to be unnecessary. The Honorable Kyle Hawthorn within
mere hours after applicant officially filing his 50 page memorandum of law The
honorable Kyle Hawtho_rn issued a signed order designating issues, to be
resolved. Applicant's memorandum was officially filed on 7-6-15 at 10:52
AM. Order designating issues signed and filed on 7-6-15 at 3:02'PM. Applicant
has now filed a motion to rescue Judge Bryan III.
11.

The State, Federal and Supreme Courts case law mandates that when an
izapplicant files his collateral attack on his criminal conviction the initial
task is to "determine whether [his] allegations, if proved would establish the
right to habeas relief. If so he is entitled t_o_ _a_g evidentiary hearing _1;9_
further develop th_e factual M_w_i;c_il_§a£_t§ outside the record. Ex Parte Revan,
701 S.w.2d 921 (Tex Cr.App. 1996); Streetman v. Lvnauqh, 812 F.2d 950, 956 (5th
Cir. 1987); Townsend v. Sain, 372 U.S. 298, 83 S.Ct. 745 at 756, 91 L.Ed.2d 785
(1963))." `

111.
Applicant sought and was granted the right to further develop the facts

regarding his Claims of ineffective assistance of counsel at trial and on

appeal. The development of these facts would simultaneously proves Judge Bryan

111 abused his discretion even before trial officially begin, The judge had a
extensive off the record praising session for lack of better term, in which hew
praised venireperson Robert Cassna who was selected as juror NO. 2 _Vol.3 P. 162
L.8. He told the entire court room what an outstanding man he was and how lucky
the City of Bryan was to have him and especially to have him as a sports writer
for the Bryan Eagle. He asked and received a loud round of applause from the
entire court room. vol.3 P.5 L.3. Additionally »he allowed the prosecutor to`
commit a plain structural error during closing arguments by stating: "That the
proof does not have 'to be beyond a reasonable doubt. Vol.4 P. 165 L.14-15. "Then
he ended the trial with yet another blatant act of abuse of discretion, by
clearing the courtroom with the exception of the prosecutor5 bring the
deliberating jurors back into the courtroom and without Applicant or his counsel
being present, allowed the prosecutor to show the inculpatory DVD (video) on his
personal laptop computer. Shortly after this secret ineeting the jury returned a
verdict of guilty. This secret meeting is off the record. Vol.4 P.183 L.14-15.
Applicant can understand Judge Bryan not wishing these facts to be
developed. Yet as verified by law it's an abuse of discretion. The court of
Criminal appeals have consistently held that Issues of ineffective assistance of
counsel are better raised in a habeas corpus proceeding. The Honorable Kyle
Hawthorn officially issued his order so that the court could legally comply with
the court of criminal's orders by allowing trial and appellate counsel be given

a chance to explain their actions' or inactions e,g. not objecting, etc. See

Ryianaer v. staté, 101 s.w.ad 107, 110-111 (Tex.crim.Ap;p, 2003):

"Thus an application for a writ of habeas corpus is the more appropriate
vehicle to raise ineffective assistance of counsel...in this case, like
the majority of cases, the record on direct appeal is undeveloped and
cannot adequately reflect the motives of trial counsel's actions,.. As we
recently stated in addressing a similar claim in Bone v. §tate, 77 S.w.3d
826,836 (Tex.Crim.App. 2002), trial counsel should ordinarily p§_afforded
pp_ opportunity pp explain his actions before being denounced pp
ineffective." » 4

 

----------

See also Chavez v. State, 6 S.w.3d 66, 71 (Tex.App.§San Antonion 1999):

"[a] record related to issues of counsel's performance is best developed
jp_thg context pf_g hearing pp_poplication for writ pf habeas corpp§& or
motion for new trial. Id at 772-78 [Jackson v. State, 877 S.w.2d 768

(Tex.Crim.App.1964)]. when the appellate record contain lpg evidence pj_~

Lpe_ reasons penind tripl counsel's action, the reviewing court cannot

conclude that counsel's performance was deficient, because such
determination is based upon speculation."

The order of Judge Hawthorn was officially entered into the

record. Therefore, it's effective. State Farm Ins. Co. v. Pults, 850 S.w.2d 691

(Tex.App.-Corpus Christi 1993). Judge Hawthorn had subject matter jurisdiction

and jurisdiction- over all parties therefore, this order "MUST" pg obeyed.

- Americap Airlines. Inc. v. Allied Pilots Ass'n, 53 F.Supp.2d 909,938

tN.D. Tex. 1999) ("An order issued by the court with jurisdiction over the t

.subject matter and person must be obeyed until it is reversed."). There has”been
' no official order issued and that appears in the record reversing Judge
Hawthorn's order. Therefore, both trial and appellate counsel have until 0ct. 6,
2015 to submitted their sworn affidavits to the presiding judge Hawthorn. After
they are received and considered then and only then can a recommendation be made

based upon _the record as ordered to be developed during the habeas

proceedings. Judge Hawthorn's orders are unambiguously written therefore, it

must be declared effective. ngpto Intern. Co. Inc; v. Llpyg,` 897 S.w.2d
482,485_86 (Te><.App.-nouston [1st Dist.] 1`995). For this reason this order rs
Transmit Habeas Corpus Record which includes findings of facts and conclusion of
law and a recommendation dismissing applicant's 11.07 has been issued
prematurely, as such it should be denied and a order issued that it be remand
back to the trial court for further proceedings.
IV.
Next is the determination as to whether the trial court was correct in

ruling applicant's application should be dismissed for failure to properly

comply the legal standards.

sTANDARD oF R‘EvIEw:

Ex Parte Crgiq Allen Necessarv, 333 S.w.3d 782 (Tex.lOth Ct. App. 20l0)
"In reviewing the trial`court's decision to grant or deny habeas corpus
relief...If the resolution of those ultimate questions turns on an
application_of legal standards, we review the determination de novo.

 

The most vital fact in the` resolution as to whether applicant\s
application is in compliance is the trial court's own written admission that the
original application was in full compliance. See page 1 which states:

June 1, 2015: lApplicant filed his original petition with this Court. This
petition was thirty three ppges long and gpjseg seventeen

grounds pi error.

The trial court also admitted applicant's original memorandun\ of law was in
full compliance when filed. See page 2 which admits the original memorandum of
law was 50 pages.

July 6, 2015: Applicant filed a "Memorandum of Law" supporting his claims
for relief. This document is fifty pages long."

Therefore,` by the trial court's n own admission Applicant's original
handwritten application and typed nemorandum of law was in full compliance as
such the recommendation should be overruled and remanded back to the trial court
for further proceedings.

Applicant has for the convenience of the court and for clarity and
simplification dealt strickly with the issues effecting the application its self
first and issues effecting the memorandum of law second.

The trial court begins speaking about motions. By definition as defined by
the Black's Law Dictionary tenth edition. "A written' or oral application
requesting a court to make a specific ruling or order." Please bear in mind that
not one single motion has ever been ruled on, as such all motions are to be
considered pending `motions,' which are as defined by id: "A motion under
consideration." A motion is an application for an order of the court. Lindley

v. Flores, 672 S.w.2d 612 (Tex.App.-Corpus Christi 1984). The court has issued

 

no order(s ) either granting or denying any motion(s) whatsoever in this
cause. The record is totally devoid of any such ruling and if a copy of the
order does not appear in the record it has no legal effect. In Re Fuentes, 960
S.W.Zd 261,264 `(Tex.App.-Corpus ’Christi 1997): Additionally the court's
recommendation that the pending motion(s) has negatively affected the compliace
of ‘Applicant's original application is an arbitrary decision . founded on
prejudice or preference rather than reason(s) of fact. Additionally this
decision has no legal support. Therefore, the court should review this decision
de novo. Ex Parte Craig Allen Necessary, 333 S.w.3d-782 (10th Ct. App. 21010).
"It is well-settled that a written order must appear somewhere ip ppg
court's record jp_order tp pg effective, whether it be in the court's
file record or in the minutes of the court. Since 1923, Texas Courts have
consistently enforced the following.general rule. All order nmst be
entered of record to be effective (Applicant omitted other.
citations). The order must be reduced to writing, signed by the trial
court, and entered in the record. "

Therefore, no lnotion filed in this case can legally effect whether the
original application is in compliance or not. Any recommendation otherwise is a
clear and arbitrary decision and misapplication of the law. Ex Parte Criag Allen
Necssary, supra. Now to error on the side of caution, applicant will
address these non-ruled on motions there merits. See complained of order page 2:

duly 6, 2015: Applicant filed "Motion to Supplement Ground _of Error

Thirteen" in which applicant raised an additional twent-two
grounds for ineffective assistance.

Motions are to be judged not by their caption, but from its body and prayer
of relief. See AbujAhmad v. Shadowbook Appprments, 776 S.w.2d 704,708
(Tex.App.-Fort worth 1989). Applicant unambiguously stated in caption and body
of this motion that he sought to add reasons twenty three through twenty five
why his counsel was ineffective. This lnotion does not seek to add one single new

ground for relief \nuch less as stated: "[t]wenty-two grounds." Therefore, this

decision is arbitrary and has` no factual or legal support. Also within the body

of the lnotion it states: "Due the fact the new -rules only allows two pages
per-ground applicant has for the convenience of the court as well as abiding by
the rules completely re-typed ground of error No. thirteen pp ppg ppg§§, They
are numbered pages 27 and 28 as originally numbered in the form. Please §jmply
take the original ground pf error No. thirteen out ppg replace jt pdth ppg
attached ppgg_gllg§". No where in the body of this or' prayer 'for relief does
applicant request or seek the court to combined or add any additional-pages. The
court's findings is clearly not supported by the record. 3

_Now lets observed the recommendations regarding this same motion. See Page
5 which states in relevant part:

Failure to Comply with Two Page timit.

5.. On duly 6, 2015, Applicant filed a Motion to Supplement Ground of Error
Thirteen, which consists of two additional type written pages on the
form provided py the Court of Criminal Appeal . (Applicant' s Motion to
Supplement Ground of Error Thirteen at 3- 4).

6. By combining the fonn pages of the original petition's Ground of Error
Thirteen with the form pages of the Motion to Supplement Ground of error
Thirteen, the total number of form pages for Ground of Error Thirteen is
four.

7. Because Ground of Error Thirteen exceeds the two pages provided for each
issue by the Court of Criminal Appeals, this Court recommends that
Applicant's writ be dismissed as noncompliance. TEX.R.APP.P, 73.1(d)..-

This recommendatioN is based upon no guiding rules and principles. Because

the motion was never ruled on, no order was issued, no order appears in the
record. As such, no one had legal authority to take any action pursuant to this
lnotion by but not limited by adding any additional pages to the original
application. Next the body of this lnotion and prayer for relief applicant
unambiguously sought and requested that the original handwritten pages 27-28 be
"replaced" with the new typed pages 27-28. Therefore the decision represents an
abuse of discretion. See In Re Gore, 251 S.W.3d 696, 699.(Iex.Appr-San Antonio

2007):

. "A 'trial court abuses its discretion when it acts in an unreasonable or
arbitrary manner or, stated differently, when it acts without reference
to guiding rules and principles.' In Re Colonie_\l Pipeline Co., 968 S.w.2d
938,941 (Tex. 1998...1»1._al_ker, [v..Packer, 827 s.w.zd 833, 839 (Tex.1992)]
827 S.l\l.2d at 840. However, “[a] trial court lhas no 'discretion' in
determining what the law is or applying the law to the facts. Thus, a-
clear failure by the trial court to analyze or apply the law correctly
will constitute and abuse of discretion..¢"

4First and foremost this motion was never granted as such no order was
issued thereby providing anyone , authorization to act upon this
motion. Therefore, the act of adding these two additional pages to the
applicant's original application is VOID and without legal authority. This is
true because this motion is legally characterized as' a pending
motion. Furthermore, the_motion, in the body and prayer for relief seeks that
the original two pages be “substi_tuted" for the typed pages numbered 27 and
28. Simply put there is no guiding principles or rules that allows the court to
act on a motion without an order and certainly not act contrary to athe request
in the body of the motion and or prayer for relief. Abu-Ahnad v. Shadowbook
Apartments', supra at 708. This act»._of doing so presents a clear abuse- of
discretion. In Re Gore, Supra at 699. n l n

Applicant will concede that he did file a second motion to- supplement the
record with ground of error 18 which actually does seeks relief for two grounds
of error on a single page.'.l\pplicant will officially retract this motion~and
resubmitted a new one dividing these grounds into grounds of error 18,19. Also '
includes is a motion to suspend the rules pursuant to Tex.R.App.Proc. Rule
2. Yet original motion was p_o_t acted upon by orders of the court, therefore, an_y
act of supplementing applicant's original application or memorandum is without
legal authority and is void as a matter of la'w. Furthermore, ;th_is exist no
guiding principles or rules that will allow the court to grant a motion knowing

that granting it will violate thev rules. Therefore, recommending that

Applicant's application be dismissed as noncompliance in of TEX.,R.APP‘. Rules

73,1, 73.2

 

 

Now the issues dealing with the memorandum of law. Page two which states:
duly 6, 2015;“ Applicant filed a "Memorandum of law" supporting his claim
- `for` relief. This document is fifty pages long. Attached to
the Memorandum are numerous exhibits these exhibits are
twenty-eight pages long (Applicant's Memorandum of_law at
1-78)

By stating that 'Applicant's Memorandun\ of law is numbered 1-78. This
implies that the court has ndsapplied the law by counting the exhibits as
additional pages to the memorandum of law. Applicant actually attached 28 pages
of exhibits to his memorandum of law making the total number of pages to 78. The
law requires these 28 pages of exhibits or appendix(s) ‘to not be counted. See
Tex.R.App.Proc Rule 73.1(d) "The prescribed limits do not include appendices,

exhibits..." This is an arbitrary and a misapplication of the law the act of

doing so is in itself an abuse of discretion and requires a de novo review._Lg

Re Gore, supra at 699, §x_Parte Craig Allen Necessav, supra.

Additionally on page 2 the courts seeks to have Applicant's application
dismissed because he filed a motion that is not on the prescribed forms. Three
is no rule that requires motions to be on any prescribed form. Page 2- 3 states:

duly 31, 2015:. Applicant files a "Response to the Court' s Order and

Request for a Supplemental Order." This response reargues
the grounds raised in the previous petitions, motions, and
memorandaums, as well as raises a new ground of error that
the 'district judge that signed the order designating
issues was not the same .judge which presided over 'the
trial. This response is twenty pages' long and is not on
the prescribed form. (Applicant‘s Response 'to the Court's
Order at 1-20).

This is applicant's supplemental motion for a live evidentiary hearing in
which he seeks a live hearing because the Judge Kyle Hawthorn that ordered the
paper hearing is not the judge that held the trial. Therefore, Applicant is
entitled to a live evidentiary hearing. Citing Amos v. Scott, 81 F. 2d 333, 347
(5th Cir. 1996). Applicant sought to fully develop the record to include the

factual basis of his claims against Judge Travis Bryan III. This motion also is

used to provide the _federal court documented evidence that Applicant is
exercising due diligence in developing the factual bases for all his claims in
state court. There is no rule or guiding principles that requires applicants to
place all or specifically motion(s) for live evidentiary hearing on the forms
provided by the court of criminal appeals. This is clearly set forth in the body
of the motion for relief. Also this_ motion was never-ruled on therefore, no one
1 had authorization to take_any action upon the motion. Therefore, this decision
represents a decision that is both arbitrary_ and is a misapplication of the
law. The trial court's recommendations clearly implies that any nwtion filed in
the trial court during a habeas proceedings the trial court has authorization to
act .upon it in any way shape form or k fashion that will. negatively effect
applicants application. These decisions ;are based` upon no rules or guiding
_prin§iples and no law._Therefore, the decisions and..recomnendations represents

an abuse of discretion. In Re Gore, supra at 699.

Additionally trial court recompends the application - to be denied for-

nonicompliance pursuant to TEX.R.APP.P. 73.1(d) 73 2. The trial recommendation
on this issue appear on page 6 which states in relevant part;

2. Applicant' s June 4, 2014 "Motion 'to provide Notice," 4 pages)( June 29, 2015

"Motion to Supplement Ground of Error Thirteen, " (4 pages) duly 63 2015,
"Memorandum of Law," (50 'pages) duly 16, 2015 "Motion for Live Evidentiary
Hearing," (13 pages) July 16, 2015 "Motion to' Hold Proceedingsv in
Abeyance,"(4 pages) July 31, 2015 "Response to the Court' s Order," (actually
supplemental motion for live evidentairy hearing 20 pages) and August 4. 2015
"Motion to Supplement" (4 pages a total of 105 pages) all are memorandums of
law which cite legal authority to support Applicant' s original grounds for
relief or argue for additional ground for relief. . .

_ 3. Applicant has filed a total lof 147 pages, of petitions; supplemential
petitions, and memorandums of law with this Court.

l`:4. Application has not asked for leave to exceed the page requirements
prescribed by Tex.R.Ap.P. 73.1(d), nor_has he shown ,good cause why such should
be granted. ' ' '

` 5. Applicant has not been granted leave by this Court to exceed the fify page

limit imposed by Tex.R.App.P.73.1(d).

10

 

6. Consequently, :since Applicant has exceeded then fifty Pages that T~U

Tex.R.App.P.73.1 allows, this Court recommends that Applicant's writ be
dismissed`for`honcompliance. TEX.R.APP.P.73.1(d),73.2".

7There'is no rule and guiding principles, or law that classifies a motion as
a memorandum of .law; A motion is a request for the court to do something. A
motion that has not been ruled on is considered a pending motion and provides no
legal authority for any one to act upon them or grant any type of relief. $imply
because Applicant provide legal support in his motions, thereby, providing legal
authority for the court to rule favorably, does not convert these well
researched motions into memorandums of law. Therefore, the court's
recommendations that applicant's memorandum of law is 147 pages is an abuse of
discretion. As such applicant's original memorandum of law is inv
compliance. Applicant respectfully submits that. the memorandum of law is
optional and if found for some reason to be out of compliance 'the original
application should not be dismissed. Applicant's original 50 page memorandums
is in compliance. l

The trial court's recommendations are arbitrary as they are not founded
upon rules and guiding principles nor do they have legal support as such they
are acts of abuse of discretion. In Re Gore, supra at 699.

wHEREFORE, PREMISES CONSIDERED, Application prays that his objections be
granted and remand this cause back to the trial court for the completion of the
evidentiary hearing already ordered or order a live evidentiary . hearing and
grant applicant any further or additional relief he is justly entitled to, it is

so prayed.

espectfully submitted,
Um
Dave reer #1829754

wayne Scott Unit
Retrieve Rd.
Angleton, Texas 77515

 
      

    

11

 

CERTIFICATE OF SERVICE

I, hereby certify that a true and correct copy of this document has been
sent to all parties in this cause by addressing a copy to: District Attorney,
Mr. Jarvis Parsons, 300 E. 26th Street, Suite 310,_Bryan, Texas 77803; The
Brazos Co. District Clerk, Marc Hamlin, 300 E. 26th St., Suite 1200, Bryan,
Texas 77803, the District Clerk of the Court of Criminal Appeals; Abel Acosta,
Supreme Court Bldg, 201 N. 14th St. Rm 106, Austin, Texas 78701-1445, by
placing a copy of the same in the U.S. Mail postage prepaid on this ezéklk'

gave DY Greer

day of August, 2015,

 

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wRIT NO. 12-03324-CRF-272-A
EX PARTE _ § IN THE CRIMINAL DISTRICT
§ 272nd JUDICIAL DISTRICT
DAVE D. GREER § BRAZOS COUNTY, TEXAS

APPLICANT'S MOTION FOR L§A!§ TO FLL§ HIS MOTION FOR SUSPENSION OF TEXAS RULES OF
APPELLANT PRGCEDURERULE 73.4(§1£2) UNTIL THE COURT COMPLL§§_HITH RUL§ 47 Qg§, T0
Iw§ FACT TH§ COURT CIT§D A CAS§ THAT AEELICANT HAS NO ACC§SS T0
10 THE HONORABLE JUDGE OF SAID COURT:
COMES NOw, DAVE DUANE GREER, Applicant herein and in support of this motion
will show this Honorable Court the following:
I.

Applicant seeks leave to file his motion not for reasons of delay nor to
harass any party but so that he can adequately oppose the 0riginal Order to
Transmit Habeas Corpus Record. which was signed on 8-17-15 and lnailed to
Applicant on 8-18-15 and received by Applicant on 8-24-15 which is documented in
the wayne Scott whit's legal mail log which is available for this Honorable
Court's inspection.

wHEREFORE, PREMISES CONSIDERED, Applicant prays that this motion will be
granted so that justice can be served by applicant being able to present a well
researched response to the aforementioned court order, and grant Applicant any

or additional relief he is justly entitled to, it is so prayed.

espec§§ully submitted,

ave D. Greer #1829754
wayne Scott Unit
Retrieve Rd.

Angleton, Texas 77515

 

CERTIFICATE 0F SERVICE
I, hereby certify that a true and correct copy of this document has been-
sent to all parties in this cause that have been served by addressing a copy to:
D_.istrict Attorney, Mr._ Jarvis Parsons, 300 E. 26th Street, Suite 310, Bryan,
Texas 77803; The Brazos District Clerk, hare h'amlin, 300 E. 26th St., Suite
1200, Bryan, Texas 77803, the District Clerk of the Court of Criminal Appeals;
Abel Acosta, Supreme Court Bldg, 201 w. 14th St. Rm106, Austin, Texas

78701-1445, by placing a copy of the same ink the U.S. Mail postage prepaid

on this __Q£___ day of August, 2015,

ave D?Greer

wRIT NO. 12-03324-CRF-272-A

' EX PARTE':`""""""`""`”"""`"‘”"`”""”"`“"““`°"`“"*""*` § IN THE cRInINAL *[)‘Is1R‘I‘cT“““a‘“~~“r~'~'“~M~~~-~ a

§ 272nd JlJDICI/-\L DISTRICT
DAVE.D. GREER 4 § k BRAZOS COUNTY, TEXAS
APPLICANT'S MOTION FOR SUSPENSION OF TEXAS RUl;:S OF APPELLANT PROCEDURE

 

Un.ll(bl(LUNTIL TMURT COlLPl_.l§wITH RU|£M Dlll_-Z` T0 TlL_E FACT
THE COURT CITED AN OPINION THAT APPLICANT DOES NOT HA!§ ACC§SS TO
TO THE HONORABLE JUDGE OF SAID COURT:
n COMES NOw, DAVE DUANE GREER, Applicant herein and in support of this motion
will show this Honorable Court the following:
I.

0n 8-17-15 This Honorable court signed an order entitled "Order to Transmit
wabeas Corpus Record, which also included fact findings,` conclusion of law and
recommendations. It was mailed to applicant in accordance to the Clerk's cover
letter on 8-18-15 and received by Applicant on 8-24-15 which tis_ documented in

the wayne Scott Unit's legal mail log which is available for this Honorable

Court's inspection. within this 0rd_er the Honorable Court cited Ex Parte

MCKnight, No wR-36,732,' 2015 wL 3641403 (_Tex.Crim.App. \June 10, 2015) (not
designated for publication). Applicant has sought by written request to the
prison law library in efforts to obtain a copy or access to this case. Applicant
was informed by wayne Scott l|nit's' prison law library supervisor Ms. Ruthey
Grays. She stated: "That we do not have access to west Law cases." Applicant
must have access .to this case before he can adequately prepare his response.
Rule 73.4(b)(2)"...A party has ten days from the date he receives the findings
to file objections, but the trial court ma)/, nevertheless, transmit the record
to the Court of 'Criminal Appeals before the expiration of the ten

days."Applicant received the courts findings on August ZL`F, 2015 at

 

' approximately 12:20PM. Therefore, applicant's response is due to be filed¢Nor
before September 2, 2015, Applicant seeks to suspend this time until five days

after Applicant receives a copy of this case.

wHEREFORE, PREMISES CONSIDERED, Applicant prays that this motion will be
granted so that justice can be served by applicant being able to present a well
researched response to the aforementioned court order° Applicant specifically
request that the ten day time limitation to file objections to the courts
findings .pursuant 73.4(b)(2) be suspended until five days after Applicant
official and actually receives a copy of the aforementioned court opinion5 and
grant Applicant any or additional relief he is justly entitled to, it is so

~prayed.

esp ctf lly submitted,

 
    
   

ave . Greer #1829754

wayne Scott Unit

Retrieve Rd.

Angleton, Texas 77515

CERTIFICATE 0F SERVICE
I, hereby certify that a true and correct copy of this document has been

sent to all parties in this cause by addressing a copy to: District Attorney,
Mr. Jarvis Parsons, 300 E. 26th Street, Suite 310, Bryan, Texas 77803; The
Brazos Co. District Clerk, Marc Hamlin9 300 E. 26th St., Suite 1200, Bryan,
Texas 77803, the District Clerk of the Court of Criminal Appeals; Abel Acosta,

Supreme Court Bldg, 201 w. 14th St. Rm 106, Austin, Texas 78701-1445, by

placing a copy of the same in the U¢S. Mail postage prepaid on this QL§

day of August9 2015,

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wRIT NO. 12-03324-CRF-272-A
EX PARTE § IN THE CRIMINAL DISTRICT
§' 272nd JUDICIAL DISTRICT
DAVE D. GREER § BRAZOS COUNTY, TEXAS
APPLICANT'S MOTION T0 S§T FORTH THE¢BRA;OS COUNTY QL§TRICT CL§B§:§ ACTIONS
AND INACTIONS THAT HAVE VIOLATED THE RULES OF APPELLATE FROCEDURE AND
OTHER RULES AND PROCEDURES THAT ILLEGALLY LEAD TO TH§_QISTRICT COURT
RECOMMENDING TO DISMISS APPLICANT'S 11.07 FOR §§ING OUT OF

 

COMPLIANCE AND OTHERNISE ILLEGALLY INFLUENCED THE

 

HONORABLE COURT'S RECOMMENDATIONS

 

TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOw, DAVE DUANE GREER, Applicant herein and in support of this motion
will show this Honorable Court the following:
I.

On 7-6-15 the Honorable Judge Kyle Hawthorn issued a signed order which
ordered: "that pursuant to Tex. Code Crim. Proc. art. 11.07,§3(d), the Court is
`of the opinion that controverted; previously unresolved 'factual issues material
toy the legality of Applicant's confinement emist. Therefore, the Court
designates the following issues of facts to be resolved." This order is five
pages long. The Rules of App..Proc. Rules 73.4(b)(1) ("If the convicting courts
enters an order designating issues, the clerk shall "IMMEDIATELY“ transmit to
the Court of Criminal Appeals a copy of that order and proof of the date the
district attorney received the habeas application." The District Clerk refused
and failed to comply with this mandatory requirement. Applicant presents as
supporting evidence the Clerk's present record he is transmitting as part of the
order "To Transmit Habeas Corpus Record" signed by a.second judge Travis Bryan

III (who was applicant's previous trial counsel) on 8-17-15, listed as document

number 9 "ORDER pages 52-56, which is also five pages long. It would be useless_p`f

and unnecessary to send this order (document) if the clerk had in accordance
with the mandatory requirements of this rule the clear had already sent it.
- II.

wext the clerk has failed and or refused to comply with Rules of
App. Proc. Rule 73.4(0)("...and the name "of the judge" who presided over the
application."). The combined effect of these violations of the clerk's has the
effect of hiding the fact that one judge ruled there was previously unsolved
issues and a second judge issued a contradicting orders that'there was not. That
the Honorable Travis Bryan III had a vital self serving personal interest in not
allowing applicant to fully develop the facts due to, the facts in this
application involving numerous constitutional violations personally against the
Honorable Travis Bryan III. fy

III.

Next Applicat would like to place front and center. the fact that all
parties involved have openly admitted applicant's original HANDwRITTEN 11.07 was
in full compliance. lt was 33 pages and listed 17 grounds of error. Applicant
filed his first motion to supplement adding three additional reasons counsel was
ineffective. Applicant typed ground of error No._13 and listed the previous 22
reasons with the three new reasons making a total of 25. Applicant put in the
body of the motion and the cover letter to the clerk to take the original
numbered pages 27-28 and replace them with the attached numbered pages
27-28. This motion was never ruled on, as such there was no order from the
court. Therefore, there was no legal authority for the clerk the place these two
pages in Applicant's original application. This illegal action assisted and lead
to the order issuing findings on page 5:

Failure to Comply with Two Page Limit

1. Tex.R.App.P. 73.1(d) requires that "[e]ach ground for relief and supporting~¥~
facts raised on the form shall not exceed the two pages provided for each,
form;“ TEX.R.APP.P. 73.1(d). _ y

2. Applicant's original petition contained seventeen grounds of error.
(Applicant's Original Petition at 1-33).

3. In the Original Petition, Applicant's Ground of_ Error Thirteen alleges that
Applicant was denied effective assistance of trial counsel. (Applicant!s
Original Petition at 27-28).

4. In the original Petition, Applicant's Ground of Error Thirteen is handwritten
on the form provided _by the Court gf_ Criminal Appeals2 and consists gf_"two
pages a§_reguired" by Tex.R.App.P. 73.1(d§. ZApplicant's Original Petition at
27-28); TEX.R.APP.P. 73.1(d). f .

5. On duly 6, 2015, Applicant filed a Motion to Supplement Ground of Error

Thirteen, which consists of two additional typewritten `pages on the form

grovided b the Qourt of Crim'nal Appeals. (Applicant‘s Motion to Supplement
round of rror Thirteen at 3-43. ‘

6. By combining the form pages of the original petition's Ground of Error
Thirteen with the form pages of the Motion to Supplement Ground of Error

Thirteen, the total number of frmn pages for Ground of Error Thirteen is
four. .

7. Because Ground of Error Thirteen exceeds the two pages provided for each
issue _by the Court of Criminal Appeals, this Court recommends that
Applicant's writ be dismissed as noncompliance. TEX.R.APP.P. 73.1(d). 73.2.

As shown and admitted herein Applicant's original HANDNRITTEN application
was in full compliance only by the District Clerk placing these new TYPED PAGES
into the original application without any authorization is the court able to
recommend this_ application to be dismissed as noncompliance for -the
aforementioned reason.

IV.

Now bear in mind Applicant's motion to supplement ground of error 18 and
attached memorandum of law was never ruled on as such the district clerk had no
authorization to supplement applicant's original HANDNRITTEN APPLICATION. The
court once again admitted applicants original memorandum of law is fifty pages

in full compliance. See page two second entry:

July 6, 2015: Applicant filed a "Memorandum of Law" supporting his claim for
relief. This document is fifty pages long."

;_._.~__._=4,.,»..~>_ *v- »__',,f_,, `

v The court also seeks to have applicant's original application to be
dismissed for noncompliance because supplemental ground of error 18 raises two
grounds on-a single page. See recommendations on page 4. This recommendation
would not be possible if the clerk had not illegally supplemented applicant's
"original application" with this ground of error No. 18, with this motion that
has never been ruled on. Therefore, as such the clerk had no legal authorization
to supplement applicant's original HANDNRITTEN APPLICATION with any papers,
pages or in any other lnanner which changes applicant's ORIGINAL HANDWRITTEN
ORIGINAL 11.07 that was and is as admitted in full compliance.

wHEREFORE, PREMISES CONSIDERED, Applicant prays that this Honorable Court
grant this motion and take note of the illegal actions of the District Clerk in
illegally altering applicant's original HANDWRITTEN ORIGINAL APPLICATION and
ORIGINAL MEMORANDUM_OF LAw and issue an order that these illegal substitutions
be taken out, thereby once again rendering applicant's original application and
original memorandum of law in full compliance, and grant applicant any other or

additional relief he is justly entitled to, it is so prayed.

spectfully submitted,

“" v
Dave DZ Greer #1829754
wayne Scott Unit
Retrieve Rd.
Angleton, Texas 77515

CERTIFICATE OF SERVICE

 

I, hereby certify that a true and correct copy of this document has been
`sent to all parties in this cause by addressing a copy to: District Attorney,
Mr. darvis Parsons, 300 E. 26th Street, Suite 310, Bryan, Texas 77803; The

~ Brazos Co. District Clerk, Marc Hamlin, 300 E. 26th St., Suite 1200, Bryan,

Texas 77803, the District Clerk of the Court of Criminal Appeals; Abel Acosta,
Supreme mGourt‘~B'ldg‘;“““ZO‘l"'-"N.“'lélth'St. Rm 106; Austin, Texas 78701-1445;‘ ' by
placing a copy of the same in-the U.S. Mail postage prepaid on this 3`2

day of August, 2015.

©\»\` 'V

Dave D. Greer

 

,~,:;a

