IN THE TEXAS COURT OF CRIMINAL APPEALS AUSTIN TEXAS

IN CAUSE NO. WR-78,165-01 EX PARTE CHADRICK B. PATE

_______________________________________________________________________

MOTION AND SUGGESTION FOR RECONSIDERATION ON COURT'S OWN

MOTION CONSIDERING THAT JUDGMENT OF CONVICTION AND
SENTENCE IS BASED ON VOID GRAND JURY INDICTMENT LEAVING
TRIAL COURT WITHOUT BOTH SUBJECT MATTER AND PERSONAL
JURISDICTION

Now Comes, Chadrick B Pate pro se (hereafter Pate) requesting expedited

relief from the Void Judgment of Conviction and Sentence procured upon a Void

Grand Jury Indictment leaving the trial court without subject matter and personal

jurisdiction on the crime for which Pate was tried, convicted and sentenced in the 36th

Judicial District Court Aransas County Texas in Cause No. A-08-5080-4CR Chadrick B

Pate.

JURISDICTION

28 U.S.C. ARTICLE 11.07 AND INHERENT AUTHORITY

PROCEDURAL HISTORY WITH STATEMENT OF THE FACTS

On June 24th, 2008 the Aransas County Grand Jury (without probable cause or evidence

to support a Grand Jury Indictment (on Pate ) jointly indicted Pate, Christopher Hall,

(hereafter Hall) Michael Underwood, Kevin Tanton and Anthony Ray for:

1.
Count One Murder under Texas Penal Code 19.02 for acting alone and together to

intentionally or knowingly cause the death of Aaron Watson by shooting the said Aaron

Watson with a firearm. No other conduct was alleged in Count One. Count Two

Aggravated Assault Texas Penal Code 22.02 by acting alone and together to

intentionally, knowingly, or recklessly cause serious bodily injury to Aaron Watson

by shooting the said Aaron Watson with a handgun. Under Count Two and not as a

separate Count,the State also alleged that the defendants did then and there commit

offense with the intent to establish, maintain or participate in a combination or in the

profits of a combination who collaborated in carrying on said criminal activity.

(Organized Criminal Activity) Penal Code 71.02. No other conduct was alleged

in Count 2. See Clerk's Record Ex #1 page 4 Grand Jury Indictment.

Pate plead not Guilty to all charges and demanded a Jury Trial as did his co defendant

Christopher Hall. The other 3 Michael Underwood, Kevin Tanton and Anthony Ray who

were jointly indicted took plea deals to testify against Pate and Hall and plead Guilty to

Aggravated Assault.

Unknown to Pate at the time of the Jury Trial because Pate's Trial Counsel participated

in a fraud and a fraud upon the court with other officers of the trial court by his

acquiescence and silence , the Trial Judge Janna Whatley without permission from the

Grand Jury permitted The State Prosecution Team Marcellno Rodriguez and Retha

Cable to constructively amend the Grand Jury Indictment See Ex #1 page 4 ,and then

2.
presented the Jury with a Court Charge See Ex #1 page 60, allowing the Jury to convict

both on the Crime charged in the Indictment and the Crime charged by the Trial Judge

and the State Prosecution Team. Pate also learned that Officer's of the Court
.
that included Pate's Defense Counsel had concealed from Pate and the Trial Court that

the Co defendant's Motion for Severance was ultimately Granted, See Ex # 2 RR vol 4

of 11 however in a 4 day Joint Jury Trial Pate, was tried with Hall on 2/9/08 when

Pate's trial had been court ordered for Jury trial for 11/3/08 and not legally continued by

any Order of the Court. See Ex # 3 RR vol 2 of 9 and Review Ex # 1 Clerk's Record

for any Court Order.

The State's theory announced at trial after the jury was seated and the trial had begun,

was that the co- defendant Hall ( under Texas Penal Code 19.02) acting alone and

together with Pate, Michael Underwood, Kevin Tanton, and Anthony Ray intentionally

and knowingly caused the death of Aaron Watson by shooting the said Aaron Watson

with a firearm, and that Pate ( under Texas Penal Codes 7.01 & 7.02 (a)(2) was a

“party” and criminally responsible for the conduct of Hall by with intent to

promote or assist Hall in the Commission of the offense of Murder he solicited,

encouraged, directed, aided or attempted to aid Hall in the commission of the offense of

Murder. Both Pate and Hall were found Guilty by a Jury and Sentenced by the Jury to

99 years or life and a $10,000 fine.

After Conviction because John Gilmore Pate's Trial Counsel did not tell Pate that he

could have asked for a New Trial Pate filed pro se his Notice of Appeal and was
3.
appointed Appeals Attorney Terry Collins by the Court. At the time of

Pate's Appeal neither he or the Appeal Attorney knew that Pate's Trial Counsel John

Gilmore had participated in a fraud with the State Prosecutor and other Officer's of the

Trial Court to convict Pate . Neither did the Appeal Attorney or Pate know that

officer's of the court concealed Hearings, Motions and Orders from Pate, the

Trial Court and by their silence concealed false entries made onto Pate's Criminal

docket sheet, Judgment of Conviction, and Clerk's Record. Officer's of the Court then

certified the Fraudulent Record of Trial Court Proceedings and submitted those

Records to the Thirteenth Court of Appeals. One hearing in particular that was

concealed from Pate and the Court was a hearing where Judge Joel Johnson had

severed the co defendant's trial from Pate's in a hearing on 10/23/08 and denied the

State's Motion to Carry Pate's trial forward with the co-defendant See Ex# 2 RR Vol 4

of 11 from the co-defendant's Record not Pate's. Pate's Criminal Docket Sheet shows a

false entry made on 10/30/08 showing Motion for Continuance and reset trial date to the

same date as the co- defendant's new trial of 1/5/09. See Ex # 1 page 95 Docket Sheet

then review the Clerk's Record and see no motion filed and no order to continue trial

from 11/3/08 to 1/5/09.

The Thirteenth court of appeals affirmed the Trial Court Judgment on 10/27/10 in

Cause No. 13- 09-00112-CR . Pate then hired Carrie Crisp Habeas Counsel who filed

his State Habeas Corpus Petition in the Texas Court of Criminal Appeals Cause

No. WR-78,165-01 still unaware of the Fraudulent Record of Trial Court Proceedings.
4.
The Court of Criminal Appeals Denied Pate's petition on 3/6/13 without written order

and no evidentiary hearing was conducted . Without Funds to hire an attorney, and

still unaware of the Fraudulent Record of Proceedings, Pate then filed a timely pro se

2254 Petition for Writ of Habeas Corpus with the United States Southern District

Court Houston, Texas, who Denied the Application in Cause No. 4:13-CV-709 on

3/20/14 and ordered that no COA shall issue.

After making this Discovery, Pate began filing post conviction motions for relief the

trial court returnable to this Court up to June 2019 and has filed a total of 13 post

conviction Writs or Motions until, the Texas Court of Criminal Appeals refused to

accept any further motions for abuse of the Writ.

PATE'S PLACE OF INCARCERATION

INMATE # 1563340
HUNTSVILLE UNIT
815 12TH STREET
HUNTSVILLE, TEXAS

ARGUMENT AND AUTHORITY

A claim of a Void Grand Jury Indictment is cognizable in a Writ of Habeas Corpus on a

final Judgment See Ex Parte Renier 734 S. W. 2d 349 (1987).

A claim that the trial court lacked jurisdiction over the case is distinct from a

constitutional claim. A constitutional claim can be waived or forfeited, however a

claim that the court lacked jurisdiction cannot be waived or forfeited by action or action.

It is meaningless to compare jurisdictional claims to other types of claims that may

be presented in an application for Writ of Habeas corpus, because the former

5
claims are procedurally distinct. The rationale for this concept was explained in

detail by a federal district court in United States v. Baucum 80 F3d, 539, 540-42 (D.

Cir. 1996) cert. Denied, 519 U.S. 879, 117 s. Ct. 204 136 Led 2d 139(1996).

A Constitutional Right is procedurally distinct from a claim asserting that the Trial Court

lacked Jurisdiction. A judgment that is a nullity for lack of Jurisdiction over the cause

may always be collaterally attacked See Seidel 39 S. W. 3d @ 224 (citing) Hoang 872

S. W. 2d 699, holding that judgments that are nullity from inception do not bar

successive filings. The holding of Stirone v. United States 361 US 212 80 S. Ct. 270

4 L.Ed 2d 252S. Ct. (1960) that a person has a right to not be convicted without a

Grand Jury Indictment on 5th Amendment violation is unmistakable. For this

reason Pate is being held and deprived of his liberty without due process of law.

The statutory instruction in Habeas Corpus matters is to dispose of the matter as law
.
and justice require 28 USC 2243. Pate's imprisonment is not justified by the judgment

of conviction. The Writ ordering his discharge from custody should issue.

The lack of Jurisdiction appears on the face of the Convicting Court Record. See Ex # 1

Pate's Clerk's Record page 4 The Grand Jury Indictment, pages 60, The

Court's Charge, page 89 The Judgment, page 72 Guilty Verdict and page 79

Punishment Verdict.

The 36th Judicial District Court Aransas County Texas (the convicting court) was without

both subject matter and personal jurisdiction for “want of an Indictment.”Because the

convicting court was without jurisdiction in the original proceeding to proceed to trial,
6
conviction and sentence, all State and Federal Courts Orders are Void.

The Grand Jury Indictment upon which Pate was tried, convicted and sentenced was

fraudulently and with intent to deceive and without permission from the Grand Jury

permitted by the The Trial Judge to be amended/altered by the State Prosecutor after

the Jury was seated and the trial had begun, to fit the theory that the State would have

the alleged accomplice witness(s) testify. After the Grand Jury Indictment was

changed, it was no longer the indictment of the grand jury who presented it. Under

these circumstances, the court had possession of the person and would have had

jurisdiction of the person and of the crime if it were properly presented by indictment.

The Aransas County Grand Jury Indictment charged Pate with the mens rea of

intentionally or knowingly and actus rea causing the death of Aaron Watson by

shooting the said Aaron Watson with a firearm. The Trial Judge and State Prosecutor

with Pate's Defense Attorney acquiescing intentionally and knowingly altered the

Grand Jury Indictment by “trying” Pate with criminal responsibility for the conduct of

another by the mens rea Texas Penal code 7.02(a)(2) with intent to promote or assist

another in the commission of the offenses of Murder and Aggravated Assault Pate

actus rea either solicited, encouraged, directed, aided or attempted to aid another in the

commission of the offenses.

The misconduct of Officers of the Court in intentionally and knowingly

prosecuting Pate on Conduct not alleged by Grand Jury Indictment, and in misleading

both Pate and the Jury in the essential elements that must be proved beyond a
7.
reasonable doubt is a Manifest, Grave and Fundamental Miscarriage of Justice.

The Grand Jury Indictment did not allege the culpable mental state that Pate had the

specify intent to kill a necessary element that must be proved beyond a reasonable doubt

and must be charged in the Grand Jury Indictment for Conviction on a Charge of

Murder either acting alone or together with others. See Solis v. State 787 S.W. 2d 388

(Tex. Cr. App. 1990) showing ” We firmly reiterated party under VTCA Penal Code

7.02(a)(2) , the State must allege the culpable mental state proscribed by 7.02(a)(2)

intent to promote or assist the commission of the offense. Allegations pertaining to

mental state of the underlying offense are not sufficient to state an offense against

defendant. See also Nava v. State 415 S.W3d 289 (2013) showing What matters under

7.02(a) is the criminal mens rea of each accomplice each may be convicted only of

those crimes for which he had the requisite mental state. Also See Baker v. State 123

Tex Crim. 209 58 S.W. 2d 534 Tex. Crim. App. 1933 showing the “act” that defendant

is alleged to have committed must appear on the face of the Indictment, looking

elsewhere is not demanded by law, Id. 58 S.W. 2d @535.

The Grand Jury indictment did not allege a “party act” that Pate performed to effect the

intended offense of murder, and did not allege a culpable “ party”mental state or the

specify intent to kill. The Grand Jury Indictment did not state an offense against Pate.

See Stirone v. United States 361 United States, 361, U.S. 212 (1960). The

Supreme Court reversed the defendant's conviction on the ground that he was

convicted of a different crime from that charged, in violation of his Fifth Amendment
8
right to be indicted by a grand jury: See Ex parte Bain 121 U.S. 1 Supreme Court

1887 the Court granted Habeas Corpus opining the following “ It only remains to

consider whether this change in the indictment deprived the court of the power of

proceeding to try the petitioner and sentence him to the imprisonment provided for in

the statute. We have no difficulty in holding that the indictment on which he was tried

was no indictment of a grand jury. The decisions which we have already referred to, as

well as sound principle, require us to hold that after the indictment was changed it was

no longer the indictment of the grand jury who presented it. Any other doctrine would

place the rights of the citizen, which were intended to be protected by the constitutional

provision, at the mercy or control of the court or prosecuting attorney; for, if it be once

held that changes can be made by the consent or the order of the court in the body of

the indictment as presented by the grand jury, and the prisoner can be called upon to

answer to the indictment as thus changed, the restriction which the Constitution places

upon the power of the court, in regard to the prerequisite of an indictment, in reality no

longer exists. It is of no avail, under such circumstances, to say that the court still has

jurisdiction of the person and of the crime; for, though it has possession of the person,

and would have jurisdiction of the crime, if it were properly presented by indictment,

the jurisdiction of the offense is gone, and the court has no right to proceed any

further in the progress of the case for want of an indictment. If there is nothing before

the court which the prisoner, in the language of the Constitution, can be "held to

answer," he is then entitled to be discharged so far as the offense originally presented

9
to the court by the indictment is concerned. The power of the court to proceed to try

the prisoner is as much arrested as if the indictment had been dismissed.

Pate was tried jointly although the Defense Counsel, The State, The Trial Judge and the

Co defendant's Defense Counsel and the district Clerk staff knew that the trials had

been severed pre trial. Once a Joint Trial is severed by Court Order, a joint

trial is no longer authorized and is a manifest Injustice See United States v. Odom

888 F2d 1014 (1989) showing severance granted to avoid manifest injustice.

Under Federal law which is applicable to all states, the U.S. Supreme Court stated that if

a court is "without authority, its judgments and orders are regarded as nullities. They are

not voidable, but simply void; and form no bar to a recovery sought, even prior to a

reversal in opposition to them. They constitute no justification; and all persons

concerned in executing such judgments or sentences, are considered, in law, as

trespassers. A Party Affected by VOID Judicial Action Need Not APPEAL. State ex rel.

Latty, 907 S.W.2d at 486. It is entitled to no respect whatsoever because it does not

affect, impair, or create legal rights ." Ex parte Spaulding, 687 S.W.2d at 745 (Teague,

J.,concurring). When rule providing for relief from void judgments is applicable,

relief is not discretionary matter,but is mandatory, Omer V. Shalala, 30 F.3d 1307 (Cob.

1994). This cannot be ignored its fact recorded, Judgment is a void judgment if court

that rendered judgment lacked jurisdiction of the subject matter, or of the parties, or

acted in a manner inconsistent with due process, Fed. Rules Civ. Proc., Rule 60(b)(4),

28 U.S.C.A., U.S.C.A. Cönst. Amend. 5 —Kiugh v. U.S., 620 F.Supp. 892 (D.S.C.
10
1985). The doctrine of res judicata is inapplicable to “void” judgments. Obviously

judgments, though final and on merits, has no binding force and is subject to collateral

attack if it is wholly void for lack of jurisdiction or where it was obtained by extrinsic

fraud. {citations} (7 Witkin , Cal. Procedure, supra, Judgment 28 p. 828) . Plaintiff

failure to appeal or attach collaterally thus in a sense allowing it to become final plainly

does not give the judgment effect. The judgment is a nullity an can have no effect. A

“final” but void order can have no preclusive effect. “A void judgment or order is , in

legal effect no judgment . By it no rights are divested. From it no rights can be obtained.

Being worthless in itself, all proceedings founded upon it are equally worthless. It

neither binds nor bars any one {citation} (Bennett v. Wilson (1898) 122 Cal.509, 513-

514, 55 P. 390.

The trial courts subsequent orders denying or dismissing the Writ or Vacate judgment in

that it gives affect to a “void” judgment is itself void. The fact plaintiff did not appeal

makes no difference, the order can have no preclusive affect. See County of Ventura v.

Tillett supra, 133 Cal. App. 3D @ p.110 183 Cal. Ppfr. 741.

An attack on a void judgment may also be direct since a court has inherent power (apart

from statute) to correct it's records by vacating a judgment which is void on its face, for

such a judgment is a nullity and may be ignored. (Olivera v. Grace (1942) 19. Cal. 2D

570, 574, 122 P.2d 564)

FACTUAL AND LEGAL INNOCENCE

Pate is both factually and legally innocent of the Offenses charged in the Aransas
11
County Grand Jury Indictment and of the Offense for which The State Prosecutor

charged and tried Pate. The Trial Court Transcripts show that from opening statement to

closing argument, the State's theory of the Offenses was that Pate was a “party” to the

offenses charged in the Grand Jury Indictment and criminally responsible for the

conduct of Hall by with intent to promote or assist Hall in the offenses of Murder and

Aggravated Assault, Pate solicited , encouraged, directed aided or attempted to aid Hall

in the commission of the offenses. All of the State's evidence offered against Pate was

“party conduct” two of the alleged accomplice witness who were already felons at the

time of the Offenses testified that Pate called them to come down from the Houston area

to help him “run a guy off” and that they drove down, met another alleged accomplice

witness who Pate allegedly was with on the side of the road and followed the alleged

accomplice witness car to the home of 3 women where they all allegedly socialized

with the women where they made a plan and then Pate allegedly rode in the car with 2

of the accomplices while the others followed and Pate gave directions to the crime

scene but each alleged accomplice witness testified that he was not at the crime scene

when they all went in and assaulted and murdered the victim, as they testified that Pate

limped off into the woods before that happened. Those accomplice witness are the only

ones that testified to any of the elements of “intent to promote or assist” in the offenses

that Pate solicited, encouraged, directed, aided or attempting to aid in the commission of

the offenses of Murder or aggravated assault. The testimony of the accomplice witness

must be corroborated before a jury can find guilt beyond a reasonable doubt. See Texas
12
Article 38.14. There was no other testimony or evidence that Pate was with the

accomplice witness before , during or after the commission of the offenses or that he

solicited, directed, encouraged, aided or attempted to aid in the commission of the

offenses. These are essential elements that were not corroborated or proved beyond

reasonable doubt. See Ex # 4 RR vol 8 of 9 pages 196-210 Prosecutor Cable Closing

Statement on Guilt Innocence showing everything was about guilt under law of parties.

Ex # 5 Vol 9 of 9 pages 16-19 Prosecutor Rodriguez closing on Sentencing &

Punishment under law of parties. Pate is Actually Innocent of both the offenses

charged by Grand Jury and of the offenses for which the State tried him and a

deliberately mislead jury who convicted and sentenced him.

DOUBLE JEOPARDY

Double Jeopardy prevents any new prosecution U. S. Constitution Amendment V.

PRAYER
Wherefore, premises considered Pate prays this Honorable Court Reconsider Pate's

Writ in Cause WR-78,165-01 and Grant the Writ, with Order for Immediate Release,

Order of Acquittal, Indictment to be Dismissed with Prejudice, and any other relief to

which Pate is entitled.

__________________________.
Chadrick B. Pate pro se
Inmate #01563340
815 12th Street
Huntsville, Texas 77343
13
 CERTIFICATE OF SERVICE

I, Nema Bardin hereby certify that on 11/7/2019 a copy of aforesaid Motion

was mailed for Chadrick B. Pate to Texas Court of Criminal Appeals with postage and

address properly attached.

----------------------------------------.
Nema Bardin
3403 Westlake Dr.
Austin, Texas 78746

CERTIFICATE OF SERVICE (iii)

 IN THE TEXAS COURT OF CRIMINAL APPEALS
WR-78,165-01

VERIFICATION

I Chadrick Pate state upon oath, that to the best of my knowledge and upon my belief

the statements and documents contained in this document is true and correct.

________________
Chadrick B. Pate Inmate #01563340
Huntsville Unit
815 12th Street
Huntsville, Texas 77343

VERIFICATION (iv)
 IN THE TEXAS COURT OF CRIMINAL APPEALS
WR-78,165-01

APPENDIX

Exhibit # 1 Pate's Clerk's Record Trial Court

Exhibit # 2 Reporters Record Vol 4 of 11

Exhibit # 3 Reporters Record Vol 2 of 9

Exhibit # 4 Reporters Record Vol 8 of 9 pages 196-210

Exhibit # 5 Reporters Record Vol 9 of 9 pages 16-19

APPENDIX (v)
 IN THE TEXAS COURT OF CRIMINAL APPEALS
WR-78,165-01

INDEX OF AUTHORITIES

Baker v. State 123 Tx. Tx. Crim. 209 58 S.W. 2d 534 Tx. Crim. App 1933..............8

Bennett v. Wilson (1898) 122 Cal 509, 513 514, 55 P. 390..........................................11

County of Ventura v. Tillett supra 133 Cal App. 3d at page 110................................11

Ex parte Bain 121 U.S. 1 Supreme Court 887...............................................................9

Ex parte Renier 734 S W 2d 349(1987)...........................................................................5

Ex parte Spaulding 687 SW 2D at 775.........................................................................10

Klugh v. U.S.620 F. Supp 892 (DSC) 1985…................................................................10

Nava v. State 415 S W 3d 289 (2013).............................................................................8

Olivera v. Grace (1942) 19 Cal. 20. 570, 574 122 P 2d.................................................11

Omer v. Shalala 30 F 3d 1307........................................................................................10

Solis v. State 787 S.W. 2d 388 (Tx. Ct. App.1990).........................................................8

State ex rel Latty, 907 S.W. 2d at 486.......................................................................,,..10

Stirone v. United States 361U S 212(1960)................................................................6..8

Seidel 39 S.W 3d citing Hoang........................................................................................6

United States v. Odom 888 F2d 1014(1989).................................................................10

7 Witkin, Cal Proc. Supra Judgment 28 p.828............................................................11

United States Constitution
Amendment V............................................................................................................. 10,6
INDEX OF AUTHORITIES (ii)
 INDEX OF AUTHORITIES CONTINUED

Texas Penal Codes

7.02 (a)(2).......................................................................................................................7,8
19.02 …..............................................................................................................................2
22.02...................................................................................................................................2
71.02...................................................................................................................................2

TEXAS CODE OF CRIMINAL PROCEDURES

ARTICLE 38.14..............................................................................................................13

28 USC 2243.....................................................................................................................6

INDEX OF AUTHORITIES (ii)

IN THE TEXAS COURT OF CRIMINAL APPEALS

 WR-78,165-01 EX PARTE CHADRICK B. PATE

INDEX

COVER SHEET

INDEX................................................................................................................................i

INDEX OF
AUTHORITIES................................................................................................................ii

MOTION AND SUGGESTION FOR RECONSIDERATION ON COURT'S OWN

MOTION CONSIDERING THAT JUDGMENT OF CONVICTION AND
SENTENCE IS BASED ON VOID GRAND JURY INDICTMENT LEAVING
TRIAL COURT WITHOUT BOTH SUBJECT MATTER AND PERSONAL
JURISDICTION.........................................................................................................1-13.

CERTIFICATE OF
SERVICE.........................................................................................................................iii

VERIFICATION.............................................................................................................iv

APPENDIX.......................................................................................................................v

INDEX (I)
 COVER SHEET
IN THE TEXAS COURT OF CRIMINAL APPEALS
IN CAUSE NO. WR-78,165-01 EX PARTE CHADRICK B. PATE

MOTION AND SUGGESTION FOR RECONSIDERATION ON COURT'S OWN

MOTION CONSIDERING THAT JUDGMENT OF CONVICTION AND
SENTENCE IS BASED ON VOID GRAND JURY INDICTMENT LEAVING
TRIAL COURT WITHOUT BOTH SUBJECT MATTER AND PERSONAL
JURISDICTION

CHADRICK B. PATE INMATE #1563340

HUNTSVILLE UNIT
815 12th St.
HUNTSVILLE, TEXAS 77343

COVER SHEET