WR-82,754-01 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 1/14/2015 9:09:44 PM Accepted 1/23/2015 11:28:47 AM MANDAMUS – RE; THEODORE LEVEE ABEL ACOSTA CLERK NO. C-432-009597-1239907-A RECEIVED COURT OF CRIMINAL APPEALS 1/23/2015 ABEL ACOSTA, CLERK Theodore Floyd Levee ) Relator, ) v. ) Hon. Ruben Gonzales ) IN THE COURT OF CRIMINAL APPEALS OF Jr. ) THE STATE OF TEXAS Respondent ) ) TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS: In re: Theodore Floyd Levee Please accept this document in the interest of justice and to correct a wrongful prosecution Theodore Floyd Levee TABLE OF CONTENTS 1. TABLE OF CONTENTS 2. INDEX OF AURTHORITIES 3. DESIGNATION OF PARTIES 4. MOTION TO PROCEED IN FORMA PAUPERIS - TFL 001 5. AFFIDAVIT IN SUPPORT OF MOTION – TFL 003 6. AFFIDAVIT FOR TRUTHFULNESS - TFL 008 7. REQUEST LEAVE TO FILE WRIT TFL 011 8. JURISDICTION - TFL 017 9. WORD COUNT – TFL 010 10. STATEMENT OF THE CASE – TFL 018 11. ISSUES PRESENTED – TFL 019 a. Whether the trial Court abuse its discretion interfering with plea, in violation of Rule 11 prohibition of judicial involvement in plea discussions b. Whether the trial Court abuse its discretion in the action following the relator refusals of the agreement, thereby indicating absence of fact that the waiver was knowing, voluntary, and absent coercion, and then the Court persisting after statement by relator of intention to appeal in that action c. Whether the trial Court abuse its discretion because relator was denied opportunity to present evidence during punishment phase of the trial in conviction and as it pertained to appeal waiver of felony conviction in Cause No. 1196215 Protective Order violation separate from conviction of Aggravated Assault d. Whether the trial Court abuse its discretion because of it’s failing to meet the requirements of a valid contract in the plea agreement -appeal waiver e. Whether the trial Court abuse its discretion in court’s refusal to allow withdrawal of appeal waiver because of the ineffective assistance of counsel, and without a hearing, as requested informally immediately post-trial by newly attained Counsel Regan Wynn f. Whether the trial Court abuse its discretion in refusal to allow Motion for New Trial by Attorney Wynn, because of ineffective assistance of trial counsel and without a hearing? g. Whether the trial Court abuse its discretion because of refusal of writ and because of error in the order of the court in Habeas Corpus §11.072 application based on ineffective assistance of counsel and without a hearing as presented by newly retained Counsel David Richards h. Whether the Court abuse its discretion because it failed to notice the ineffective assistance of counsel, in trial, punishment, withdraw request, motion for new trial and §11.072 application 12. STATEMENT OF FACTS – TFL 021 a. FACT ONE TRIAL COURT INTERFERED WITH THE RIGHT TO APPEAL INPLEA AGREEMENT AND CAUSED HARM b. FACT TWO TRIAL COURT REFUSED TO ACCEPT IMMEDIATE REQUEST TO WITHDRAW APPEAL WAVER, DENIED ANYHEARING AND CAUSED HARM c. FACT THREE TRIAL COURT REFUSED TO ACT UPON MOTION FORNEW TRIAL THAT CLAIMED INEFFECTIVE COUNSELAND WITHOUT HEARING THEREBY CAUSING HARM d. FACT FOUR ABUSE OF DISCRETION OCCURRED IN ACTIONS OFTHE TRIAL COURT IN THE 11.072 APPLICATION BASED ON INEFFECTIVE COUNSEL AND THE COURTS FLAWED ORDER e. FACT FIVE COURT ABUSED DISCRETION 13. SUMMATION OF ARGUMENT – TFL 063 14. ARGUMENT – TFL 073 15. PRAYER – TFL 103 16. APPENDIX 17. PARTIES Williams v. Beto, 5th Cir. 1965, 354 F.2d 698, 704 TFL 64 DESIGNATION OF PARTIES Relator Theodore Floyd Levee 925Altara Ave Coral Gables FL 33146 Thelevee@yahoo.com Tel. 972-835-6777 Fax 305-665-5138 Respondent Hon. Judge Ruben Gonzalez Jr. 432nd District Court of Texas, 401 W. Belknap Fort Worth, TX 76196-0219 817-884-2935 817-884-3361 (fax) Party of Interest United States Magistrate Judge Judge Jeffrey L. Cureton 501 West 10th Street, Room 520 Fort Worth, TX 76102 (817) 850-6690 E-Mail USDCemergencyfile@txnd.uscourts.gov Trial Defense Counsel Mr. Steven Scott Bell Bar Card Number: 00785689 9400 N Central Expy Ste 416 Dallas, TX 75231-5069 (214)-739-4477 Fax (214)-234-0062 Appellant Counsel Mr. William Reagan Wynn Bar Card Number: 00797708 3100 W 7th St Ste 420 Fort Worth, TX 76107-2793 (817)-336-5600 Fax: (817)-336-5610 Assoc. Appellant Counsel Mr. David L. Richards Bar Card Number: 16845500 3001 West 5th Street, Suite 800 Fort Worth, TX 76107 (817)-332-5567 Fax: 817-885-7688 Assistant Prosecutor Mr. Timothy Scott Rodgers Bar Card Number: 24046741 401 W. Belknap Fort Worth, TX 76196-0001 (817)-884-1400 Fax: 817-884-3333 Assistant Prosecutor Mr. Lloyd Edward Whelchel Bar Card Number: 00798579 401 W. Belknap St Fort Worth, TX 76196 (817)-884-1641 Fax: (817-)884-3333 Assistant Criminal Prosecutor Mr. Joe Shannon Jr. Bar Card Number: 18107000 400 W Weatherford Fort Worth, TX 76196-0201 (817)-884-1620 Fax: 817-884-3333 Federal Habeas Corpus Respondent Counsel Assistant Criminal Prosecutor Steven Waller Conder Bar Card Number: 04656510 401 W Belknap St Fort Worth, TX 76102-1913 (817)-884-1687 FAX (817) 884-1672 E-Mail sconder@tarrantcounty.com Federal Habeas Corpus Respondent Leighton Isles, Director, Community Supervision & Corrections Dept. Tarrant County Texas 200 West Belknap Street Fort Worth, TX 76102 Phone: (817)-884-1600 Fax: (817)-531-5639 Persons of Interest Complainant Cathey Edmondson 0lds Mehl Levee 0lds 217 Harrison Hurst TX 76053 Tele. Number (817) 282-6122 Alexandra Levee- Witness 217 Harrison Hurst TX 76053 Tele. Number (817) 282-6122 Catherine Levee- Witness 217 Harrison Hurst TX 76053 Tele. Number (817) 282-6122 Andrea Levee-Witness 217 Harrison Hurst TX 76053 Tele. Number (817) 282-6122 Civil Counsel Charles Bennett 'Charlie' Mitchell Jr. Naman Howell Smith & Lee, PLLC 405 Fort Worth Club Building 306 W 7th St Ste 405 Fort Worth, TX 76102 Phone: (817)-509-2040 Fax : (817)-509-2060 INDEX OF AUTHORITY 354 F.2nd 698,704 TFL 77 Abney v. United States, 431 U.S. 651, 656, 97 S.Ct. 2034, 2038, 52 L.Ed.2d 651 (1977). APP 1 Anderson v. Johnson, 338 F.3d 382, 392 (5th Cir. 2003) APP 1 Arnold v. State, 685 P.2d 1261, 1265, 1267 (Alaska Ct. App. 1984) APP 1 Beans v. Black, 757 F.2d 933 (8th Cir.) , cert. denied, 474 U.S. 979 (1985) ; APP 1 Brecht v. Abrahamson, 507 U.S. 619, 637-38, 113 S. Ct. 1710, 123 L. Ed. 2d 353 (1993) APP 18 Brinegar v. United States, 338 U.S. 160, 174(1959) TFL 74 Darden v. Wainwright, 477 U.S. 168, 181, 106 S. Ct. 2464, 91 L. Ed. 2d 144 (1986) APP 18 DeMoulin v. Kissir,446 S.W.2d 162, 165 (Mo.App.1969) TFL 82 Ex parte Hargett, 819 S.W.2d 866, 868-69 (Tex. Crim. App. 1991) TFL 107 Ex parte Villanueva (April 30, 2008, PD-1836-06) TFL 107 Ex parte Wilson, 724 S.W.2d 72, 74(Tex.Cr. App.1987) TFL 105 Griggs v. A.B. Chance Company, 503 S.W.2d 697, 704 (Mo.App.1973) TFL 82 Johnson v. Sublett, 63 F.3d 926, 930 (9th Cir. 1995) APP 18 Kercheval v. United States,274 U.S. 220, 224, 71 L.Ed. ,1009, 47 S.Ct. 582 (1927). TFL 76 Leland v. Oregon, 343 U.S.790, 802-03 (1952) TFL 73 McCoy v. Wainwright, 804 F.2d 1196, 1198 (11th Cir. 1986) APP 1 Mclntire, 698 S.W.2d at 660. TFL 105 Pharo v.Chambers Cnty., 922 S.W.2d 945, 948 (Tex. 1996) TFL 78 Randle v. State, 847 S.W.2d 576 (Tex.Cr.App.1993) TFL 105 re Estate of Rhea, 257 S.W.3d 787, 790 (Tex. App.-Fort Worth 2008, TFL 78 Reyes v. State, 849 S.W.2d 812 (Tex. Crim. App. 1993) TFL 105 Rogers v. Maggio, 714 F.2d 35, 37 (5th Cir. 1983) APP 1 Scott v. Wainwright, 698 F.2d 427, 429 (11th Cir. 1983) APP 1 Smith v. Phillips, 455 U.S. 209, 219, 102 S. Ct. 940, 71 L. Ed. 2d 78 (1982). APP 18 Smith v. Phillips, 455 U.S. 209, 219, 102 S. Ct. 940, 71 L. Ed. 2d 78 (1982). APP 18 State v Guerrero (June 5, 2013, PD-1258-12) TFL 106 State v. Osborne, 684 P.2d 683, 691 (Wash. 1984) APP 1 State v. Williams, 666 N.W.2d 58, 60, 65 (Wis. 2003) TFL 104 Strickland v. Washington, 466 U.S. 668 TFL 64 Strickland v. Washington, 466 U.S. 668, 690-91, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) . APP 1 Strickland v. Washington, supra,466 U.S. at 687(III), 104 S.Ct. 2052 TFL 72 Strickland v. Washington, supra,466 U.S. at 687(III), 104 S.Ct. 2052 TFL 101 STRICKLAND v.WASHINGTON, 466 U.S. 668 (1984) TFL 78 Thomas v. Lockhart, 738 F.2d 304 (8th Cir. 1984) APP 1 Thompson v. Borg, 74 F. 3d 1571 (9th Cir. 1996 APP 18 United States v. Henderson, 72 F.3d 463, 465 APP 1 United States v. Lane, 474 U.S. 438, 449, 106 S. Ct. 725, 88 L. Ed. 2d 814 (1986) APP 18 United States v. Melancon, 972 F.2d 566, 567 (5th Cir.1992). APP 1 United States v. Pruitt, 32 F.3d 431, 433 (9th Cir.1994) APP 1 United States v. Wilkes, 20 F.3d 651, 653 (5th Cir.1994) APP 1 Walker v. Packer, 827 S.W.2d 833, 840 TFL 72 Walker v. Packer, 827 S.W.2d 833, 8407 Id. at 840. TFL 101 Williams v. Beto, 5th Cir. 1965 TFL 77 Williams v. Beto, 5th Cir. 1965, 354 F.2d 698, 704 TFL 64 MOTION SEEKING AUTHORIZATION TO PROCEED IN FORMA PAUPERIS NO. C-432-009597-1239907-A Theodore Floyd Levee ) THE COURT Relator, ) OF CRIMINAL v. ) APPEALS OF Hon. Ruben Gonzales Jr. ) THE STATE OF Respondent ) TEXAS TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS: In re: Theodore Floyd Levee MOTION SEEKING AUTHORIZATION TO PROCEED IN FORMA PAUPERIS TFL001 AFFIDAVIT IN SUPPORT OF MOTION SEEKING AUTHORIZATION TO PROCEED IN FROMA PAUPERIS NO. C-432-009597-1239907-A Theodore Floyd Levee ) Relator, ) v. ) Hon. Ruben Gonzales ) IN THE COURT OF CRIMINAL APPEALS OF Jr. ) THE STATE OF TEXAS Respondent ) ) TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS: In re: Theodore Floyd Levee AFFIDAVIT IN SUPPORT OF MOTION SEEKING AUTHORIZATION TO PROCEED IN FROMA PAUPERIS TFL003 I, Theodore Floyd Levee, declare that I am the relator in the above entitled case; that in support of my motion to proceed without being required to prepay fees, costs or give security therefor, I state that because of my poverty I am unable to pay the costs of said proceeding or to give security therefor; that I believe I am entitled to redress; and that the issues which I desire to present are the following: Did the trial court abuse its discretion? IN support of the establishment of current financial state are the following questions and answers; 1. Are you presently employed? No x If the answer is "no," state the date of last employment and the amount of the salary and wages per month which you received. December 15 2010, salary of $108,000.00 per year. _ 2. Have you received within the past twelve months any money from any of the following sources? TFL004 a. Business, profession or form of self-employment? No x b. Rent payments, interest or dividends? No x c. Pensions, annuities or life insurance payment? Yes x d. Gifts or inheritances? Yes x e. Any other sources? Yes x If "yes," describe each source and amount received during the past twelve months. ANSWER; f. May 2014, $1100.00 surrender of Annuity Lincoln National Life g. SNAP Food Stamp Assistance 1405127147 $189.00 per month h. Gift of 250.00 Family 3. Do you own cash, or have money in checking or savings account? No x 4. Do you own any real estate, stocks, bonds, notes, automobiles, or other valuable property (excluding ordinary household furnishings and clothing)? Yes x TFL005 If “yes," describe the property and state its approximate value. ANSWER; 1997 Acura CL 2.0 in poor condition with over 200,000 miles. Cash value approximately $500.00 5. List the persons who are dependent upon you for support, state your relationship to those persons, and indicate how much you contribute toward their support. Self . I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on October 20 2104. TFL006 Signature of Petitioner TFL007 AFFIDAVIT FOR TRUTHFULNESS NO. C-432-009597-1239907-A Theodore Floyd ) Levee ) Relator, ) v. ) IN THE COURT OF CRIMINAL APPEALS Hon. Ruben ) OF THE STATE OF TEXAS Gonzales Jr. ) Respondent ) TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS: In re: Theodore Floyd Levee TFL008 AFFIDAVIT FOR TRUTHFULNESS Signed in the State of Florida. County of Dade My legal name is Theodore Floyd Levee. I am presently 61 years old. My current address of residence is 925 Altara Ave. Coral Gables. Florida 33146 I hereby state that the information contained in this application for a writ of Mandamus is true, to the best of my knowledge I also confirm that the information here is both accurate and complete and relevant information has not been omitted. I declare under penalty of perjury that the foregoing is true and correct. Signature of Individual Date December 28 2014 TFL009 AFFIDAVIT OF WORD COUNT This mandamus is below the required word count limit of 15,000 words. Elec Sig Theodore LEvee TFL010 REQUEST FOR LEAVE TO FILE WRIT OF MANDAMUS AND JURISDICTION NO. C-432-009597-1239907-A Theodore Floyd ) Levee ) Relator, ) v. ) IN THE COURT OF CRIMINAL APPEALS Hon. Ruben ) OF THE STATE OF TEXAS Gonzales Jr. ) Respondent ) TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS: In re: Theodore Floyd Levee REQUEST FOR LEAVE TO FILE WRIT OF MANDAMUS. 4-1 TFL011 Comes now Theodore Floyd Levee, Relator, and request permission of the Court to file this application for writ of mandamus. 1. The purpose of the writ is to correct a manifest injustice and request this Court of Criminal Appeals to intervene by granting relief from the applicable actions and rulings of the 432nd District Court of Texas, Tarrant County, Hon. Judge Gonzales. 2. Relator, is innocent, wrongfully accused, convicted and denied his rights under due process and ineffective counsel. 3. Relator has been prevented in the intention to prove innocence, from obtaining review of or appeal from the wrongful felony conviction as it pertains to the allegation of aggravated assault and protective order violation, at the actions of the parties and the Court and is made in the interest of justice. 4. Failure in the application of due process and on the part of counsel at nearly every phase of adjudication has resulted in a grave miscarriage of justice due to factual innocence, in that substantive 4-2 TFL012 evidence does not support allegation. 5. The medical records have never been factually considered, never been reviewed and those records conclusively prove realtors innocence and no crime occurred. 6. The timeliness of this writ is asked waived, in the interest of justice and the factual innocence of the relator. 7. Indigence, the complexity of the issues, ineffectiveness of retained counsel, actions on the part of the Court and its officers and the inability to gain any pro bono support, required time learning procedure in an attempt to protect and defend the constitutional rights of the relator acting pro se. 8. Actions of the part of the parties has contributed to the delay and untimeliness of this application. 9. As the result of the failure in A. the due process of law and, B. ineffective assistance of counsel and, C. the abridgement the Constitution of the United 4-3 TFL013 States, D. Actions and the abuse of discretion have, as such, contributed to relator’s inability to i. Obtain effective assistance, ii. Obtain review, iii. Obtain appeal, iv. Obtain habeas corpus, v. Obtain new trial vi. Obtain any post-conviction consideration vii. Obtain hearing 1. Of abuse of discretion 2. Of the absence of fact in substantive medical evidence 3. Of Proof that no crime occurred in the false claim of Aggravated Assault. 10. Actions of parties resulted in an erroneous conviction and the 4-4 TFL014 inability to gain any hearing to consider the absolute truth reflected in the substantive evidence contained in the records before the court. A. Fraud on the Federal Court is alleged by relator on the part of The Tarrant County District Attorney’s Office in the attempt to prevent review of the trial and proceedings. i. Respondent Conder’s misstatement of Texas Statutes Chaper 11 requirement of service in 28 in U.S.C. 2254 necessitating Mandamus. ii. Prosecutor Rodgers misstatement of fact in affidavit he submitted in the support of denying 28 U.S.C. 2254 11. Mandamus is appropriate in a criminal case if the relator shows that he has no other adequate legal remedy and the act sought to be compelled is purely ministerial; a "ministerial act" is one which is accomplished without the exercise of discretion or judgment. 4-5 TFL015 12. The mistrial act requested has been an opportunity to present evidence in the records before the court in support of innocence in the allegation and conviction of aggravate assault. 4-6 TFL016 STATEMENT OF JURISDICTION This Court has jurisdiction to hear this original proceeding under Texas Government Code section 22.221(b) 4-7 TFL017 6. Whether the trial Court abuse its discretion in refusal to allow Motion for New Trial by Attorney Wynn, because of ineffective assistance of trial counsel and without a hearing? 7. Whether the trial Court abuse its discretion because of refusal of writ and because of error in the order of the court in Habeas Corpus § 11.072 application based on ineffective assistance of counsel and without a hearing as presented by newly retained Counsel David Richards 8. Whether the Court abuse its discretion because it failed to notice the ineffective assistance of counsel, in trial, punishment, withdraw request, motion for new trial and §11.072 application TFL020 presence of two witnesses see App 19 Aff of Ruso 22 Aff of Levee iii. Presentation of plea and terms contractually deficient, 9. Trial Court abused its discretion in failing to honor the refusal of agreement after acceptance of that refusal. TFL023 FACT TWO TRIAL COURT REFUSED TO ACCEPT IMMEDIATE REQUEST TO WITHDRAW APPEAL WAVER, DENIED ANY HEARING AND CAUSED HARM. Immediately upon sentencing and adjournment new counsel, Regan Wynn was retained and immediately requested withdraw of appeal waiver based on ineffective assistance of counsel and permission to file appeal. a. Court refused request to withdraw appeal waiver b. Court refused appeal c. Court refused hearing. i. Mr. Wynn would not produce records per request – See end note Feb 2012 Regan Wynn TFL024 assistance of counsel- See end note ix(COURT’S DEFECTIVE ORDER 11.072) and absent a hearing. Id App 11 State reply and order 6. Counsel David Richards never informed relator of writ 7. Counsel David Richards did not inform relator a of right to appeal 8. In the pro se filing of a § 28 U.S.C.2254 habeas application relator learned of the existence of a state writ. a. Realtor informed the United States District Court he was unaware of the writ b. Absence of service as required by § Chapter 11.5 see APP 24 Service e. Respondent Counsel Mr. Conder misinformed the court in the requirement of service in a state write- see APPENDIX EIGHTEEN; CONDOR FRAUD ON FEDRAL COURT -MISTAMEMENT OF LAW d. Prosecution issued an affidavit deficient in truth, fact and validity prejudicing The United States District Court.- See 13. APPENDIX THIRTEEN; PROSECUTOR RODGERS SWORN AFFIFDAVIT TO MAGISTRATE United States District Court dismissed 28 U.S.C. 2254 with prejudice for failing to exhaust states remedies I. See A End Note RULING IN FEDERAL COURT ii. See also 13. APPENDIX THIRTEEN; PROSECUTOR RODGERS SWORN AFFIFDAVIT TO MAGISTRATE f. The writ was not appealed because its existence was unknown TFL027 TFL029 TFL030 ii Arrest for Protective Order Violation FIRST ALLEGATION PO VIOLATION April 11 2010 1. Based on realtor not understanding the arrest – as he did not hurt his wife a. And the fact he was taking a pain medication administered by his wife and know by her to cause him harm i. As stated in Victims Voluntary Statement b. And the Hurst Jail continued to administer pain medication as the incisions from surgery was causing pain c. And the inability to talk to his wife d. And the magistrate hearing being unrepresented 2. Signing paper he could not read because eyeglasses where still at residence 3. Being told he could not live at home any more a. Realtor did not understand he could not have his wallet, pants, glasses or car. TFL031 4. Realtor was accosted by screaming spouse as he entered unlock residence a. Gathered his pants and glasses and his computer b. Was in car pulling out of drive way c. When Hurst Police ordered him out of car as he was backing out of drive way d. Placing him under arrest for PO violation e. The black coat described in police report was actually a support Velcro immobilizer that supported the operative arm post-surgery. TFL032 TFL033 TFL034 TFL035 TFL036 SECOND ACCUSATION OF PO VIOLATION FALSE CLAIM P.O. VIOL RESULTING IN ARREST APRIL 28 2010 It was impossible for Theodore Levee to be at 401 Parkview Hurst Texas at the time as sworn to by Cassie Figueroa in the PO violation arrest. “Figueroa said that on Wednesday 04-28-2010 atabout 1330 hours… Drive by once every ten minutes or so Frequency increased to about once every five minutes Drove by six or seven times before he parked Watched for three or four minutes and called Alexandra Levee Who called Cathey Levee 6/1/2010 police report states Cathey did not answer Alexandra’s call 4/28/10 Claim Cathey returned call at 1430 (2:30 PM) Five minutes after he left Alexandra returned from school Cathey Levee called Officer Tooker #638 (Sequence #100405367) Police report shows first call to HPD at 21:15 (9:15 PM) Claim Theodore Levee drove around for 40 minutes TFL037 Court confirmed Theodore Levee was scheduled to be in Magistrate’s Court on April 28 2010 at 1 PM. Attorney Bell instructed Theodore Levee to meet him at 12:45 -15 minutes prior to call to order. Relator signed papers in probation office at 1524 (3:24 PM) Mr. Levee was at court at 12:45 - Mr. Bell met Theodore Levee at appox 1:30 as Bell was late for court Theodore Levee appeared before magistrate without Mr. Bell and entered pro se plea of not guilty at 1:15 Mr. Bell met and then discussed what was happening and also discussed a plea bargain with ten years’ probation when he arrived. Mr. Bell then delivered a letter of representation to the Clerk of the Court Time stamped 2:09 PM Mr. Bell further discussed the case and left at approximately 3 PM Theodore Levee walked to probation department and signed in. PO Vio. hearing in Judge Polous's courtroom Mr. Bell failed to confirm Mr. Levee was with him at the time he registered with court per time stamp. resulting in the divorce courts finding and increase in bond and TFL038 the additional requirement of GPS at $800.00 per month The confirmation of times Levee: a. Court PM call was 1 PM and Levee was second case called b. Bell and Levee were together at 2:09 PM c. Levee was at Probation at 3:24 PM Times in accusation; a. Arrived at 1:30 b. Drove around several times c. Six or seven times starting at ever ten minutes and then ever five minutes d. Smallest computation of time would be 35 minutes - 1x 10 minutes and 5 X 5 minutes 2 x10 minutes and 4 x 5 minutes = 40 minutes 3X 10 and 3 x 5 =45 minutes d. 4X 10 and 2X 5 = 50 Estimated time alleged driving around house was then between 35 and 50 minutes Waited three or four minutes = 55 minutes TFL039 Giving time for allegation of exchange Arrived 1:30 earliest departure 2:15 Latest 2:20 Telephone records are available to show the times do not add up Based on court appearance and time stamp on Clerks letter it is impossible for Theodore Levee to be at the residence at 1:30 Based on allegation it is impossible to depart residence and be in court. a. depart at 2:15 to 2:30 b. Drive and park downtown Fort Worth – appox. 45 minutes (3:00 or 3:30 PM) c. Appear in Magistrates court at 1 PM call to order d. And then sign into Probation office several blocks away at 3:24 PM TFL040 Counsel time stamped notice of representation TFL041 TFL042 TFL043 TFL044 iii COURT 34.2 Don’t—Do not say another word. TFL045 iv 35.5 May we go outside? TFL046 v (37.6 Based on Advice of Counsel…) TFL047 vi Wynn refused to send all records dispite request. Print - Close Window - Click More at the bottom of the email to print single message Subject:Re: Reagan Wynn From: Theodore Levee (thelevee@yahoo.com) To: rwynn@kearneywynn.com; Date: Tuesday, December 11, 2012 2:04 AM Theodore Laurenzana - Levee Coral Gables Florida 972-835-6777 From: Reagan Wynn To: Thelevee@yahoo.com Sent: Wednesday, March 14, 2012 10:17 AM Subject: Re: Reagan Wynn Ted - i am out of state this week. I will get thefile together and forwarded to Mr Mitchell next week. Reagan Sent from my iPad On Mar 13, 2012, at 7:18 PM, "Thelevee@yahoo.com" wrote: Please forward ALL attorneys work and a copy of the contract to Mr. Mitchell, as well as all notes, memos and any other material concerning my relationship with your firm as soon as possible. According to Mr. Amitchell he has only received the trust. It was offered to assist me in obtaining what the court agreed to and was never done, that is return to Florida. I have lost the tuition for one class, with constitutional and administrative law classes not too far behind. I took the on line training for the compact and according to the sources I talked to Florida has never recieved the request. This is contrary to the agreement that was made and I am the only one that seems to follow the rules and keep agreements. I am curious however, because in the cites I found. The false accusations made in the 404 claiming I was accused of sexual assault of my daughter was found to be without merit and the statement did not constitute the claim according to Hurst PD Det. Noone. In the cases I read that action would prejudice the court if were not presented to TFL048 identify or if it was not substantiated. The negative cite I read said if but not for the prior ARREST, then the 404 action could be the grounds for a new trial. I have had other attorneys read the transcript and the general consensus is the testimony against me contradicted itself many times. While Mr. Bell referenced the medical statements, he presented no evidence and no witness.at the same time referring to them in closing argument. These statements - prior claims of how the accident happened on no way match the testimony. The statements were in a sworn bus. Affidavit of HEB ER records. The claim of 80% disability has no merit especially in light of the statement Cathey made to Dr. Kadoko's that she is in the chair on the advice of counsel and is really quite active. In the transcript Mr. Bell stated he recieved states evidence as late as two days prior to trial. Meaning he did not excersize his discovery opportunity and he actually said the discord did not exist in Texas. Mr. Bell bullied my daughter and my friend to accept the offer to plea post finding. I can only say I am the process of getting a psych evaluation. The mortgage lawsuit cathey filed against CITI was defeated in summary judgement. The car accident is coming up soon. Perhaps the two greatest points were that Mr. Bell refused my request for expert medical testimony. You see one of the claims is I kicked her and broke her leg. The bone claimed is the small bone in the back of the leg. A kick from the front would have had to break both bones. Mr. Bell was completely unprepared. He actually told the judge he did not do appeals when the judge asked if he advised his client concerning appeal rights. It was not in the transcript however but Risa and my daughter heard it as well . The court may have been off the record at the time. I ask that you please excuse my bitterness. Sent from my iPad Begin forwarded message: From: Charles Mitchell Date: February 28, 2012 2:39:58 PM CST To: 'Theodore Levee' Cc: Patty Rien Subject: Reagan Wynn Ted: I’ve spoken with Reagan. He is forwarding his contract to me and the monies you have in escrow. You owe the Probation Department or the monitoring company $845.00 I instructed TFL049 Reagan to pay that out of the escrow monies. He also said he’d be happy to assist you in trying to get you transferred to Florida. He advised that prior to deduction for the $845.00 there was $13,300.00 in escrow. Yours truly, Charles B. Mitchell, Jr., Esq. Naman Howell Smith & Lee, PLLC Fort Worth Club Building 306 West 7th Street, Suite 405 Fort Worth, Texas 76102-4911 (817)509-2025 (main) (817)509-2040 (direct) (817)509-2060 (fax) Email: cmitchell@namanhowell.com Licensed in Texas and Arkansas To Learn More visit www namanhowell.com ******************* The information contained in this e‐mail message is intended only for the personal and confidential use of the recipient(s) named above. This message may be an attorney‐client communication and/or work product and as such is privileged and confidential. If the reader of this message is not the intended recipient or an agent responsible for delivering it to the intended recipient, you are hereby notified that you have received this document in error and that any review, dissemination, distribution, or copying of this message is strictly prohibited. If you have received this communication in error, please notify us immediately by e‐mail, and delete the original message. Important/Confidential: This communication and any files or documents attached to it are intended only for the use of the person or entity to which it is addressed. It contains information that may be privileged, confidential and exempt from disclosure under applicable law. If you are not the intended recipient of this communication, you are hereby notified that the copying, distribution or other use of this communication is strictly prohibited. If you have received this communication by mistake, please notify the sender immediately by electronic mail and destroy all forms of this communication (electronic or paper). Thank you. = TFL050 MITCHELL EMAIL STRATEGY FOLLOWING MEETING vii WITH WYNN TFL051 TFL052 JUDGEMENT BY THE COURT showing plea of guilty and plea viii in open court TFL053 ix COURTS DEFECTIVE 11.072 ORDER TFL054 x RULING OF UNITED STATES DISTRICT COURT 28 U.S.C. 2254 TFL055 TFL056 TFL057 TFL058 TFL059 TFL060 TFL061 TFL062 SUMMATION OF ARGUMENT 1. The court was misled because prosecution and defense failed in their duty as officers of the court to investigate and conduct a fair trial. 2. The court abused its discretion. a. Because it interfered in the Rule 11 agreement in sentencing agreement / appeal waiver b. Because it failed to note ineffective counsels failure to present defense or evidence or contradict obvious inconsistencies. c. Because of its actions preventing review d. Because it failed to perform due process of law. 3. The trial court abused its discretion because it never heard any post-conviction evidence It was the general rule, that relief from a final conviction on the grounds of incompetent or ineffective counsel will be granted only when the trial was a farce, or a mockery of justice, or was shocking TFL063 the hospital records, is not sufficiently explained by prosecutors claim transposition errors. The testimony fails to equate to commonly known medical fact that in a lateral cause of injury to the knee the lateral ligaments will show disturbance before the ACL tears, - there are NO disturbances of lateral ligaments. (APPENDIX THE FORENSIC EXAMINER Spring 2005 By Matthew Donohoe, MA, ATC; Helen Aslanian, BS; and Kenneth Solomon, PhD, PE, Post PhD . “In order to achieve rupture of the anterior cruciate ligament due to abduction, the medial collateral ligament must first be ruptured. When the medial collateral ligament is ruptured due to abduction, the rupture of the anterior cruciate liga-ment is inevitable.) Smilli IS. Injuries of the Knee Joint. UCLA BIOMED WE 870 S641i; 1951. ) d. The radiology report and orthopedic surgeon state no collateral ligament damage is apparent. TFL065 TFL066 e. The complaints made at the time of the injury are far too different than the story made up after the hospital visit.(see PRIOR INCONSISTANT STATEMENTS) i. And differ from Testimony `43.10 He wrapped his ankle around the lower part of my leg and flipped it out at a right angle TFL067 ii. TFL068 f. The addition of the rib injury, a month later, never substantiated as an injury and testimony the pictures of the right side of the body reflect and verify an injury to the left side of the body is too far a reach. 4. The complaint, in that it was a preexisting injury as shown in the evidence submitted and not attested to, and is absent the collateral ligament damage, lacking substantive evidence proving such an action, when in fact it could not have occurred. The additional allegation of a rib injury, unsubstantiated despite the complete total physical of April 10 2010, and the release in the business records affidavit stating no other injury no other claim. Proof does not in fact exist in the medical evidence as it supposes the possibility and complainant’s testimony of the photos reflecting the allegation of a later discovered rib injury, as testified, is outrageous – it refers to an injury on the other side of the body. The allegation of 80% disabled told to prosecutor and police but differing in examination of Doctor TFL069 see APPENDIX 4 ; COMPLAINT OF RIB INJURY Dr. Kadoko and the subsequent admission of fraud in a car accident, contradicts itself in the record. see APP 25 DR. Kadoko APRIL 28 2010 The failure to present evidence in the records of prior statements referred to in opening and again in closing of multiple claims cannot be trivialized as prosecutor stated as transposition errors. There is no logic nor reason that can explain all of the actions that have resulted in arrival at this point of mandamus. Why the court gave this much credit can only be an abuse of discretion. Given a fair opportunity, a fighting chance, the reasonable doubt standard would be exceeded and clear, compelling substantial evidence shown in the record, the complainant desires to gain materially and to hide contention of relator of the addiction and abuse of prescriptions by complainant, was the purposes of fictional evidence made to appear real. The court’s refusal to exercise discretion in substandard performance of defense counsel is a bit outrageous. It exceeds TFL070 APP 24 TFL071 guilty. Actions violated relator’s rights and prejudiced the outcome.8 The court abused its discretion by the rule of law. 6 Walker v. Packer, 827 S.W.2d 833, 840 7 Id. at 840. 8 “counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable,” Strickland v. Washington, supra, 466 U.S. at 687(III), 104 S.Ct. 2052 TFL072 ARGUMENT Supreme Court Justice Frankfurter stated that “it is the duty of the Government to establish … guilt beyond a reasonable doubt. This is basic in our law and rightly one of the boasts of a free society—is a requirement and safeguard of due process of law in the historic, procedural context of ‘due process’.” See: Leland v. Oregon, 343 U.S. 790, 802-03 (1952) [dissenting opinion]. That due process was subverted and abused in an unexplainable failure befuddling the relator, because in fact, there is no substantial evidence a crime took place because the injuries testified to do not match medical evidence, because the testimony varies from the prior statements dramatically and because forensic facts do not support the allegation. Because the Court Ignored the hard evidence, the failure of counsel, and the conviction was by dubious testimony that a reasonable person could see was conflicted, it resulted in a gross miscarriage of justice and was outrageously compounded because the Tarrant County District Attorney’s Office actions to prevent revue, later, outright misleading the TFL073 and property.” See: Brinegar v. United States, 338 U.S. 160, 174 (1959).” It is obvious these rules were ignored because facts in evidence, neglected by counsel and prosecution and the Court resulted in false conviction. “The Supreme Court in Winship recognized that the reasonable doubt standard protects three fundamental interests. First, it protects the defendant’s interest in liberty; second, it protects an innocent person charged with a crime from the stigma of conviction; and, third, it engenders public confidence in criminal law by giving “concrete substance” to the constitutional presumption of innocence. Id., 397 U.S. at 363-64.” “In a concurring opinion in Winship, Justice Harlan pointed out that the reasonable doubt standard is “bottomed on a fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free.” Id., 397 U.S. at 372.” TFL075 TFL077 APPENDIX 3. PRIOR STATEMENTS OF COMPLAINANT. This is explained by ADA Rodgers in closing; Trl. Rcd. II STATE VS. THEODORE FLOYD LEVEE Prosecutors closing argument Pg. 21 4 medical records, what we have is the victim In a very 5 pained and upset state giving reports to doctors and 6 police officers, and they are writing that information 7 down. 8 So, yes, there may be some transposition 9 issues, but the fact remains someone hooking an ankle 10 and pulling their leg out could be a kick, could be a 11 sweep. Grabbing with the ankle and pulling out, those 12 are semantics that can be explained as to she’s Just 13 gIving the description to people who are transposing it. 14 Regardless, we have physical, medical 15 evidence showing these injuries took place, and they’re 16 absolutely consistent with what the victim stated, not 17 to mention this good relationship that the Defendant has 18 with these girls, that he’s demonstrated this whip-kick 19 to Alex. This “whip kick” was created by complainant’s father as sworn in AFFIDAVIT FOR DIVORCE and is in the manifestation of the lie perpetuated in coached false testimony, by evidence prosecution court and counsel failed to review or allow under a perverted MOTION IN LIMINE. See APPENDIX TFL079 25 2006. The complainant actually appeared in court with a like fracture in the opposite fibular. Inconsistencies are not sufficiently explained by prosecutors claim in closing of transposition errors. See also APPENDIX 5. ARGUMENT FAILURE DEFENSE OPENING; See also APPENDIX 6. ARGUMENT DEFENSE CLOSING STATEMENT referencing facts not presented in testimony. TFL081 4. The court failed to recognize the testimony did not establish any medically substantive fact for cause of injury and was contrary to evidence. a. “Under the sudden onset doctrine, a causal connection may be inferred if the injury ‘develops coincidentally with the negligent act, such as broken bones ․, immediate, continuing back pain ․, or an obvious wound․’ DeMoulin v. Kissir, 446 S.W.2d 162, 165 (Mo.App.1969). The testimony of a lay witness is sufficient to establish the nature, cause and extent of an injury ‘when the facts fall within the realm of lay understanding.’ Griggs v. A.B. Chance Company, 503 S.W.2d 697, 704 (Mo.App.1973).” “However, when the injury is a ‘sophisticated injury, which requires surgical intervention or other highly scientific technique for diagnosis, the proof of causation is not within the realm of lay understanding.’ ” Id. quoting from Griggs v. TFL082 A.B. Chance Co., 503 S.W.2d 697, 704 (Mo.App.1973). Testimony conflicts commonly known medical fact that in an abduction as a cause of injury to the knee the lateral ligaments will show disturbance before the ACL tears, - there are NO disturbances of lateral ligaments. See APPENDIX 8. ARGUMENT; THE FORENSIC EXAMINER, Spring 2005 e.g. By Matthew Donohoe, MA, ATC; Helen Aslanian, BS; and Kenneth Solomon, PhD, PE, Post PhD .) “In order to achieve rupture of the anterior cruciate ligament due to abduction, the medial collateral ligament must first be ruptured. When the medial collateral ligament is ruptured due to abduction, the rupture of the anterior cruciate liga-ment is inevitable.” Smilli IS. Injuries of the Knee Joint. UCLA BIOMED WE 870 S641i; 1951 e,g. ) b. Illustration show facts inconsistent with prosecutions presentation. See Argument 10. OF THE KNEE TFL083 APPENDIX 9. ARGUMENT; RADIOLOGY REPORT TEXAS HEALTH HARRIS HEB 4/10/2010 TFL085 f. The complaints made at the time of the injury are far too different than the story made up after the hospital visit. APPENDIX 3. ARGUMENT; PRIOR INCONSISTANT STATEMENTS IN EVIDENCE -BUSINESS RECORDS AFFIDAVIT TEXAS HEALTH HARRIS HEB ER RECORDS 4/10/2010 CL PRIOR STATEMENTS 4/10/10 HEB EMERGENCY ROOM AFFIDAVIT IN EVIDENCE 4/10/2010 19:28 (7:28) Domestic dispute with husband kicked in knee fell now cannot stand on leg ER pg 11‐13 PD not notified 51 y.o. DOB: 911111958 Visit Date: 411012010 Account Number9:0 60052031 MRN:0 70013282 Room #: 61 Chief Complaint: Knee Injury (Major) HPI 7:28 PM Cathe L 51 f male presents to the ER complaining of right knee injury onset pta. Pt. states her husband allegedly kicked her right knee. Pt. reports her husband did a type of maneuver where he grabbed her ankle and kicked her knee, severely twisting her knee. Pt. states when she tries to walk on knee it feels wobbly and goes out on her. No other injuries at this time. No other complaints. Pt. has RA and mild right knee menisectomy as a teenager. Denies any other injury during this incedent. 4/10/2010 19:33 (7:33) Admiting Diag. Possible broken knee Injury: kicked in knee,pain. ER pg 24 TFL086 4/10/2010 19:45 (7:45) kicked right knee ER pg 11 4/10/2010 20:13 (8:13) Comment Dr. Peckepaugh PTA Domestic dispute with husband Kicked in ER pg 10 knee. 4/10/2010 20:27 (8:27) Husband tripped her ER pg 9 4/10/2010 20:32 (8:32) Patient stated a below‐DF, My husband tripped me.‐DF ER Pg 8 4/10/2010 23:01 (11:00) he purposely bumped me into the wall , I stumbled & he did a “military take Vic Vol Statement Pg1 down” kick to my right knee. g. And differ from TestimonyAPPENDIX 11. ARGUMENT Trl Rcd 43.10 He wrapped his ankle around the lower TFL087 part of my leg and flipped it out at a right angle TFL088 id APP 4 TFL089 See APPENDIX 12 DENIES ANY OTHER INJURIES AT THIS TIME exceeds reasonable doubt of a crime. TFL091 id 1. APP One TFL095 APP FIFTEEN TFL097 TFL099 In Walker v. Packer, the Texas Supreme Court attempted to re-instate mandamus as an “extraordinary remedy, available only in limited circumstances.” The Court’s analysis focused on reaffirming two basic requirements: there must be a clear abuse of discretion committed by the trial court in applying the law and there must be no adequate remedy by appeal. It is clear in the complete record the Court exceeded this standard and actually stonewalled any attempt at relief. If not but for the abuse of discretion of the court the relator would succeeded in attempts to appeal and stood trial in protective order allegations. The courts blindness to the wrongful actions of counsel in this adjudication are apparent in the record. Taken as a whole, evidence in record utilized, no reasonable jurist would find the relator guilty nor would a reasonable court circumvent every attempt to correct the gross errors. TFL100 Actions of the officers of the court violated relator’s rights and prejudiced the outcome. The court abused its discretion by the rule of law. Walker v. Packer, 827 S.W.2d 833, 8407 Id. at 840. “Counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable,” Strickland v. Washington, supra, 466 U.S. at 687(III), 104 S.Ct. 2052; See id. 2. ARGUMENT; CONSTITUTIONALY INEFFECTIVE COUNSEL The trial Court abused its discretion in failing to perform in compliance with Canon 1: Upholding the Integrity and Independence of the Judiciary CODE OF JUDICAL CONDUCT “An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining and enforcing high standards of conduct, and should personally observe those standards so that the integrity and independence of the TFL101 Judiciary is preserved. The provisions of this Code are to be construed and applied to further that objective.” This Trial Court, in the preponderance of this record, failed to administer justice TFL102 PRAYER Relator is innocent. It is because of that fact the request is made for any opportunity to substantiate evidence. Medical evidence supports relators contention no crime took place. Medical evidence refutes contention of complainant who was using the claim and in fact succeeded in obtaining favorable treatment in divorce court. Complainant was suffering from rheumatoid arthritis and suffered from a narcotics addiction at the time of the incident and used a campaign of distortion and fear to destroy credibility of relator to avoid detection. Later, the orthopedic surgeon discovered the addiction and refused to treat the complainant any further. Overall the possible relief is in remand to the State Court of Criminal Appeals for a full and fair hearing of the merits of the relator. A hearing for relief from the judgments of trial court that prevented review or appeal affording a forum that allows the factual presentation of all the evidence is desired. TFL103 Any opportunity to prove by substantial evidence, innocence before lawful authority is relator’s outcome. Because of interference with the Rule 11 procedure and denial of withdrawal of guilty plea, the court may allow return to plea, sentence and allow the appeal. Citing State v. Williams, 666 N.W.2d 58, 60, 65 (Wis. 2003) (prohibiting the judge from playing any role in the plea bargaining process and allowing the defendant to withdraw a plea resulting from the trial judge’s invitation to the defendant, his counsel, and the prosecutor to “have a little chat in chambers”). Realtor submits interference on the part of the trial court Because the motion for new trial was allowed to expire then the court may allow the motion and hold a hearing to determine if substantial evidence verifies contentions of relator. “Appellant', s motion for new trial, supported by his affidavit was filed in a timely manner. TFL104 The motion raised a matter not determinable from the record, namely, that trial counsel was ineffective for failing to inform appellant of a plea bargain offered by the State. Because appellant's motion for new trial raised a matter not determinable from the record, upon which he could be entitled to relief, see, Ex parte Wilson, 724 S.W.2d 72, 74 (Tex.Cr. App.1987); and Randle v. State, 847 S.W.2d 576 (Tex.Cr.App.1993), we hold the trial judge abused his discretion in failing to hold a hearing pursuant to Rule 31(d). Mclntire, 698 S.W.2d at 660. Accordingly, the judgment of the Court of Appeals is reversed and the cause is remanded to the trial court for a hearing on allegation IX of appellant's motion for new trial. Mclntire, 698 S.W.2d at 661. Reyes v. State, 849 S.W.2d 812 (Tex. Crim. App. 1993) Because of the failures in 11.072 Habeas Corpus, the court may allow an amended writ and allow hearing to determine if substantial evidence verifies contentions of relator TFL105 b. As stated in State v Guerrero (June 5, 2013, PD-1258-12) “Def did not meet his burden of proving, by a preponderance of the evidence, facts that would entitle him to relief; counsel did not file a proper habeas application under 11.072; counsel’s statements were not competent evidence, and even if they were, those statements did not prove, by a preponderance of the evidence, that def was improperly denied right to counsel before pleading guilty”; it was not sworn to, and it evaded the requirement of a sworn pleading for an application for habeas corpus relief. The motion did not contain affidavits, associated exhibits, a memorandum of law, or anything else to establish specific facts that might entitle def to relief. Even if counsel’s statements were accepted as competent evidence, def still was not entitled to relief because those statements did not prove, by a preponderance of evidence, that def’s waiver of counsel was unknowing, unintelligent or involuntary. TFL106 As stated in 11.072 sec. 4, described in Ex parte Hargett, 819 S.W.2d 866, 868-69 (Tex. Crim. App. 1991), and employed in Ex parte Gonzales, 12 S.W.3d 913, 914-15 (Tex. App. - Austin 2000, pet. ref'd), no longer applies to applications for a writ of habeas corpus filed by a person who is serving or who has served a community supervision term. Ex parte Villanueva (April 30, 2008, PD-1836-06) The writ issues by operation of law, represents a significant departure from prior writ law that allowed a judge, in his or her discretion, to refuse to issue a writ. Under prior law, when the trial judge refused to issue a writ, an applicant had no right to appeal. In providing for automatic issuance, Section 4 eliminates a trial judge's discretion to refuse to issue a writ. Sections 4 and 8, taken together, signify that the rule governing appellate review. Because this relator had no knowledge of 11.072 writ then no appeal could be offered. Because it is in the interest of justice, relator prays this court apply its TFL107 discretion in order to obtain any hearing that will determine truth in the conviction of an innocent person. Because of the failure to act on “a judicial writ issued by the proper court to the individual, official, or board to whom it is addressed, to perform some specific legal duty to which the party applying for the writ is entitled under legal right to have performed”, will result in the continued miscarriage of justice, persecution of an innocent person and allow those who chose to abuse the law for their own outcome to flourish unchecked. Because it is in the interest of the State of Texas and its people to insure the State and Federal Constitutions are upheld and justice be served this prayer is for the lawful authority to assess the true substantive facts that would have prevented this miscarriage of justice. TFL108 TFL109 APPENDIX 22. APPENDIX TWENTY TWO “I can’t give up my right to appeal” APPENDIX TWENTY ONE; TRIAL RECORD PACER DOCUMENT Case 4:13-cv-00211-Y-BJ Document 40-2 Filed 08/23/13 Page 1 of 76 PageID 502 RA 001 Case 4:13-cv-00211-Y-BJ Document 40-2 Filed 08/23/13 Page 2 of 76 PageID 503 RA 002 Case 4:13-cv-00211-Y-BJ Document 40-2 Filed 08/23/13 Page 3 of 76 PageID 504 RA 003 Case 4:13-cv-00211-Y-BJ Document 40-2 Filed 08/23/13 Page 4 of 76 PageID 505 RA 004 Case 4:13-cv-00211-Y-BJ Document 40-2 Filed 08/23/13 Page 5 of 76 PageID 506 RA 005 Case 4:13-cv-00211-Y-BJ Document 40-2 Filed 08/23/13 Page 6 of 76 PageID 507 RA 006 Case 4:13-cv-00211-Y-BJ Document 40-2 Filed 08/23/13 Page 7 of 76 PageID 508 RA 007 Case 4:13-cv-00211-Y-BJ Document 40-2 Filed 08/23/13 Page 8 of 76 PageID 509 RA 008 Case 4:13-cv-00211-Y-BJ Document 40-2 Filed 08/23/13 Page 9 of 76 PageID 510 RA 009 Case 4:13-cv-00211-Y-BJ Document 40-2 Filed 08/23/13 Page 10 of 76 PageID 511 RA 010 Case 4:13-cv-00211-Y-BJ Document 40-2 Filed 08/23/13 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APPENDIX 20; AFFIDAVIT OF SKYE LEVEE 21 INTERROGATORIES 22 1. Are you the daughter of Theodore Floyd Levee and his former wife, your mother, 23 Pamela Levee Fitzgerald? 24 a. Answer; 25 26 2. Were you in attendance at this trial? ; 27 Criminal Cause # 1239907R, styled The State of Texas v. Theodore Floyd 28 Levee, in which relator is charged with the offense of Aggravated Assault 29 Causing Serious Bodily Injury (22.02(a)(1) of Cathey Edmondson Levee, in 30 the 432nd District Court of Tarrant County Texas conducted October 13 -14 31 2011 32 a. Answer; 33 34 3. Were you available to testify at that trial if called? 35 a. Answer; 36 37 4. Was there any occasion where Defense Counsel Steven Bell and you met or talked 38 before that trial? 39 a. Answer APPENDIX SKYE LEVEE Page 2 of 16 20. APPENDIX 20; AFFIDAVIT OF SKYE LEVEE 40 5. Following the courts verdict, in recess pending answer concerning bond to Florida 41 were you in the company of Risa Runo and Theodore Levee during the 42 conversation of an agreement instigated by Steven Bell counsel for the defense? 43 a. Answer: 44 45 6. Did you observe Mr. Bell specifically state Mr. Levee “needed to plead guilty or 46 he was going straight to jail for the next ten years and if he pleaded guilty he could 47 be on a plane by tomorrow going home to Miami and continue his life”? 48 a. Answer; 49 50 7. Did Mr. Bell address Mr. Levee, Ms. Runo and you, in his discussion of the terms 51 of that offer of an agreement? 52 a. Answer; 53 54 8. Did Mr. Levee participate in that discussion? 55 a. Answer; 56 9. Did you observe Ms. Runo ask Mr. Bell questions of appealing the guilty verdict? 57 a. Answer; 58 59 10.Did you observe Mr. Bell state he would not appeal? APPENDIX SKYE LEVEE Page 3 of 16 20. APPENDIX 20; AFFIDAVIT OF SKYE LEVEE 60 a. Answer; 61 62 11.Did you observe Mr. Bell stating no appeal of the court’s verdict was available? 63 a. Answer; 64 65 12.Did you observe Mr. Bell state no attorney would appeal this case? 66 a. Answer; 67 68 13.Was the exact word Mr. Bell used to “plead”? 69 a. Answer; 70 71 14.Did you observe Mr. Bell advising Mr. Levee to agree with the court and accept 72 the offer in spite of his continued profession of innocence? 73 a. Answer; 74 75 15.Is it your opinion Mr. Bell instructed Mr. Levee to agree to the courts offer and to 76 misstate his guilt in order to obtain the probation and immediate return home to 77 Florida? 78 a. Answer; 79 APPENDIX SKYE LEVEE Page 4 of 16 20. APPENDIX 20; AFFIDAVIT OF SKYE LEVEE 80 16.Upon return to the court did you observe the Judge asking Mr. Bell if he advised 81 his client of his right to appeal? 82 a. Answer; 83 84 17.Did you observe Mr. Bell answering the Judges question as “I don’t do appeals”? 85 a. Answer; 86 87 18.Did you observe Mr. Bell at any time stating he was “through with this case”? 88 a. Answer; 89 90 91 19.Please state you recollection of the demeanor and actions of Mr. Bell during that 92 period of time 93 a. Answer; 94 95 96 97 98 APPENDIX SKYE LEVEE Page 5 of 16 20. APPENDIX 20; AFFIDAVIT OF SKYE LEVEE 99 100 20.Please state your recollection of the demeanor and actions of Mr. Levee during that 101 period of time 102 a. Answer; 103 104 105 106 107 108 109 21.Is the attached affidavit bearing your signature your statement requested when 110 Theodore Floyd Levee attempted to obtain relief? 111 a. Answer; 112 Subject: Court date and what I remember 113 From: Skye (skyebcd@yahoo.com) 114 To: Thelevee@yahoo.com; 115 Date: Sunday, March 18, 2012 5:48 PM 116 117 My name is Skye Levee, and i was in the hearing all day of Ted Levee. I am Ted Levee's 118 daughter. What I remember most about the trial was how Ted Levee's attorney came out 119 to tell him he had to take What the judge was offering and that if he didn't he would be in 120 the mercy of the judge and go straight to jail. The judge was offering "10 to 10”.. Which APPENDIX SKYE LEVEE Page 6 of 16 20. APPENDIX 20; AFFIDAVIT OF SKYE LEVEE 121 I think was 10 yrs probation, but what I didn't realize that meant forever with a felony. 122 Ted Levee sat on a bench outside of court room in a state of shock.. Head down.. Saying 123 nothing.. What seemed to be an eternity. When he finally went into the court room.. He 124 was confused.. And spoke out of disbelief.. Which I understand came across as 125 disrespectful towards the judge. Ted Levee requested to go outside to speak to his 126 attorney again. This is after being outside for a while, so the judge again wasn't happy. 127 This was a late afternoon on Friday.. Already way paste the normal time of the court. 128 Several times during testimony Ted Levee's attorney didn't say things that should have 129 been said. Ted Levees attorney did say the other side had to prove without a reasonable 130 doubt. This was the only thing the kept us very positive.. Their was doubt all over the 131 place!! Ted Levee's attorney failed to show light of several things and the other side 132 showed many things that were not relevant.. But was painting Ted Levee as a person 133 capable of doing what he was accused of 134 Doing. 135 Thank you so much. Skye Levee 136 137 138 139 APPENDIX SKYE LEVEE Page 7 of 16 20. APPENDIX 20; AFFIDAVIT OF SKYE LEVEE 140 My name is Skye Levee, and i was in the hearing all day of Ted Levee. I am Ted Levee's 141 daughter. What I remember most about the trial was how Ted Levee's attorney came out 142 to tell him he had to take What the judge was offering and that if he didn't he would be in 143 the mercy of the judge and go straight to jail. The judge was offering "10 to 10”.. Which 144 I think was 10 yrs probation, but what I didn't realize that meant forever with a felony. 145 Ted Levee sat on a bench outside of court room in a state of shock.. Head down.. Saying 146 nothing.. What seemed to be an eternity. When he finally went into the court room.. He 147 was confused.. And spoke out of disbelief.. Which I understand came across as 148 disrespectful towards the judge. Ted Levee requested to go outside to speak to his 149 attorney again. This is after being outside for a while, so the judge again wasn't happy. 150 This was a late afternoon on Friday.. Already way paste the normal time of the court. 151 Several times during testimony Ted Levee's attorney didn't say things that should have 152 been said. Ted Levees attorney did say the other side had to prove without a reasonable 153 doubt. This was the only thing the kept us very positive.. Their was doubt all over the 154 place!! Ted Levee's attorney failed to show light of several things and the other side 155 showed many things that were not relevant.. But was painting Ted Levee as a person 156 capable of doing what he was accused of APPENDIX SKYE LEVEE Page 8 of 16 20. APPENDIX 20; AFFIDAVIT OF SKYE LEVEE 157 Doing. Affidavit of Skye Levee 158 APPENDIX SKYE LEVEE Page 9 of 16 20. APPENDIX 20; AFFIDAVIT OF SKYE LEVEE 159 APPENDIX SKYE LEVEE Page 10 of 16 20. APPENDIX 20; AFFIDAVIT OF SKYE LEVEE 160 APPENDIX SKYE LEVEE Page 11 of 16 20. APPENDIX 20; AFFIDAVIT OF SKYE LEVEE 161 APPENDIX SKYE LEVEE Page 12 of 16 20. APPENDIX 20; AFFIDAVIT OF SKYE LEVEE 162 APPENDIX SKYE LEVEE Page 13 of 16 20. APPENDIX 20; AFFIDAVIT OF SKYE LEVEE 163 APPENDIX SKYE LEVEE Page 14 of 16 20. APPENDIX 20; AFFIDAVIT OF SKYE LEVEE 164 APPENDIX SKYE LEVEE Page 15 of 16 20. APPENDIX 20; AFFIDAVIT OF SKYE LEVEE 165 APPENDIX SKYE LEVEE Page 16 of 16 19. APPENDIX NINETEEN ; AFFIDAVIT OF RISA RUSSO 1 I, Risa Runo, went to court with Ted Levee and his daughter, Skye, on Oct. 2011 to hear closing 2 statements and be there for support for both Ted and his daughter. 3 We returned to the court room 4 where judge Gonzales found Ted guilty. I was shocked , along with Skye, and Ted went into shut down. 5 We went back to the hail where Ted just kept looking at the floor saying, “But I didn’t do it. Bell was 6 telling us that Ted needed to plead guilty or he was going straight to jail for the next ten years. 7 If he pleaded guilty he could be on a plane by tomorrow going home to Miami and continue his life. I 8 said, 9 I asked about an appeal and he said that he would not appeal. That he was done with this case. I said 10 what about another attorney appealing and he said that there was no way we would find any attorney 11 to appeal this case. 12 Said his best chance was to plead guilty and both violations would go away, they would be 13 dismissed, there would be a $100 fine, and he could go home tomorrow and get on with his life, 14 Mr. bell was speaking to Skye and me, more like bullying. 15 Skye kept saying, “Papa just plead guilty and get on with your life.” 16 She did not understand until later, that a felony on your record never goes away. 17 Ted never said anything or even looked up. He just told his attorney, 18 “I will do whatever you want me to do, but I didn’t do it, and I want to die.” 19 It’s like he wasn’t there anymore. When they went back into court and the judge asked Ted for his plea 20 he said I can’t do this, I can’t plead guilty to something I did not do. 21 He and Bell went back outside, Bell was visibly agitated and so were the other people working in 22 the court. 23 I even heard one of them complaining about “This would be happening on Fri afternoon.” I 24 don’t know what was said in the hall this time because Bell told Skye and me to stay. 25 When they came back before the judge he asked Bell if he had advised Ted of his rights to an appeal? 26 Bell replied” No, your honor, I don’t do appeals” 27 This was the first Skye and I had ever heard about this, he had led us to believe that he did appeals but 28 that there would never be a chance of one with him or any other attorney. 29 Ted pled guilty and the next shocker was that the judge wanted to know how he plead on the 30 Po violations( the ones that were supposed to be dismissed according to Bell) 31 Bell did get one dismissed considering Ted was standing with Bell in the court in front of a judge when 32 the supposed violation happened. 33 The next let-down by Bell in the court room was that the $100 fine was now a $1000. 34 We still thought Ted would at least be able to go home to Miami and go back to school. 35 After court, Ted was not in his right mind. He wanted to die. My parents and I were very worried about 36 him and all agreed that one of us needed to be with him at all times for fear that he would commit 37 suicide. I am not sure how he could have been found guilty, but I do not feel that he was represented 38 properly by his attorney and find this all to be a travesty of justice. 39 40 41 AFFIDAVIT OF RISA RUNO 42 43 44 45 46 47 48 49 50 51 52 53 54 APPENDIX EIGHTEEN; Fraud on the Federal Court – Misstatement of law Responant Conder Affidavit In the matter of the attempt for relief by Theodore Floyd Levee in application for Habeas Corpus writ 28 U.S.C.2254 materially false, fictitious, and fraudulent statements and representations where made under oath. Criminal District Attorney Joe Shannon, Assistant Criminal District Attorney Steven W. Condor and Assistant District Attorney Timothy Rodgers, filed false statements in deference to the law and the direction of the United States District Court Magistrate in comment and in submitted and filed affidavit. The federal false statement statute1 is used in a number of areas when information or reports must be filed with a department or agency of the United States, or when the government gathers information from individuals and companies in the course of exercising its authority. The statute prohibits making "any materially false, fictitious, or fraudulent statement or representation" in relation to any matter "within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States." 2 The following affidavit and sworn by Assistant prosecutor Rodgers and utilized by Mr. Shannon and Mr. Condor in the denial of the Habeas Corpus of Theodore 1 § 14.07 False Statements (18 U.S.C. § 1001) 2 1-14 The Prosecution and Defense of Public Corruption § 4-001 Levee is a fraud, a sham and an intentional act of misrepresentation of facts with the intention of depriving relator of constitutional rights. This action further hampered relator’s ability to obtain due process and is instrumental in the delay in filing this extraordinary writ of mandamus. Theodore Levee Relator 4-002 Fraud on the Federal Court The District Attorney of Tarrant County Texas was respondent counsel in 22 U.S.C. 2254 application and committed fraud on the court. As respondent counsel The District Attorney Office of Tarrant County Texas misstated the requirement of service for the applicant in as 11.072 writ of Habeas Corpus to the Magistrate of the United States District Court of North Texas Fort Worth Division. That misstatement of law concerning the requirement of service was contrary to fact of law and caused the dismissal with prejudice of the federal habeas corpus 28 U.SW.C. 2254 The statement to Federal Magistrate was;3 “The petitioner further suggests some misfeasance by the Tarrant County District Clerk's Office because he was not personally served with the State's answer by the district clerk's office. That service requirement applies to article 11.07 writs. See Tex. Code Crim. Proc. art.11.07 §7. Article 11.072 places the onus of service on the State. See Tex. Code Crim. Proc. art. 11.072 §5(d). The State fulfilled its responsibility by serving Mr. Richards (the petitioner's state writ attorney) on May 11, 2011. What information provided to the petitioner by Mr. Richards is outside the State's knowledge or control.” 3 Case 4:13-cv-00211-Y Doc 43 1 of 5 Page ID 789 4-003 FACTUAL Tex. Code Crim. Proc. art. 11.072 Sec. 5. (d) Any answer, motion, or other document filed by the state must be served on the applicant by certified mail, return receipt requested, or by personal service. 11.13 APPLICANT - The word applicant, as used in this Chapter, refers to the person for whose relief the writ is asked, though the petition may be signed and presented by any other person. In that act relator was prevented from review of wrongful conviction, with prejudice. The action was based on failure of relator to appeal the 11.072 Writ of Habeas Corpus presented to the trial court; Relator contends that he knew nothing about the writ and could not appeal what he did not know. Respondent in claim relator failed to exhaust states remedies chided the court in the misstatement of requirement of service specifically to the applicant / relator as made by The District Attorney Office of Tarrant County Texas and was further proof of the unknown writ. The actions of The Tarrant County District Attorney’s Office in the trial and then in attempts at circumvented the 28 U.S.C. 2254 application for review further suppressed review and delayed this ultimate mandamus writ. 4-004 In that the federal 2254 writ was dismissed with prejudice for failure to exhaust state court remedies, as required by 28 U.S.C. § 2254(b), the respondent lied. The proper focus is not on the conduct of the prosecutor, but whether the trial was fair. Smith v. Phillips, 455 U.S. at 219. The action of the Tarrant County District Attorney’s Office is additionally compromised in the affidavit filed by the assistant prosecutor in the trial - Mr. Rodgers in that the court was clear all evidence would only be considered was in the trial record. That affidavit as stated by Mr. Rodgers – was on information not a part of and actually refuted in trial record. It is obviously intended to mislead. (see Affidavit Rodgers ) Petitioner next alleges that the prosecutor committed more than thirty acts of misconduct. Only five of these alleged acts of misconduct are set forth with sufficient particularity in the instant petition to enable this Court to make a determination on the merits. Petitioner claims that the prosecutor misstated the law, misstated the facts, made impermissible statements of personal belief or opinion, and presented arguments based on facts not in evidence. 4-005 The standard for granting habeas relief on a claim of prosecutorial misconduct is that the prosecutor's conduct renders the trial "fundamentally unfair." See Darden v. Wainwright, 477 U.S. 168, 181, 106 S. Ct. 2464, 91 L. Ed. 2d 144 (1986); Smith v. Phillips, 455 U.S. 209, 219, 102 S. Ct. 940, 71 L. Ed. 2d 78 (1982). A trial is "infected with unfairness," and habeas relief is warranted, when the prosecutor makes improper remarks and these remarks resulted in "actual" prejudice. Brecht v. Abrahamson, 507 U.S. 619, 637-38, 113 S. Ct. 1710, 123 L. Ed. 2d 353 (1993) (citing United States v. Lane, 474 U.S. 438, 449, 106 S. Ct. 725, 88 L. Ed. 2d 814 (1986)); Johnson v. Sublett, 63 F.3d 926, 930 (9th Cir. 1995). Habeas relief is available only if the error had a substantial and injurious effect or influence on the jury's verdict. Thompson v. Borg, 74 F.3d 1571, 1576 (9th Cir. 1996). The proper focus is not on the conduct of the prosecutor, but whether the trial was fair. Smith v. Phillips, 455 U.S. at 219. 4-006 4-007 MISTATEMENT OF LAW 4-008 4-009 4-010 4-011 DISTRICT CLERK MANUEL 4-012 4-013 APPENDIX SEVENTEEN; SWORN AFFIDAVIT FOR DIVORCE Affidavit for Divorce (Ambiguities) 05/23/2011 Mail Receipt # CCL-0306945 Modjarrad & Associates PC (223.00) CASE NO. 2011-003833-1 Cathey Levee vs Michael Musacarella § Case Type: Injury/Damage - Motor Vehicle Accident § Date Filed: 05/23/2011 § Location: County Court at Law No. 1 § § PARTY INFORMATION Lead Attorneys Defendant Musacarella, Michael JASON N THOMAS 467 Arwine DR Retained Hurst, TX 76053 817-424-1001(W) Plaintiff Levee, Cathey Gabriel A.. Riveros Retained 469-209-7725(W) EVENTS & ORDERS OF THE COURT DISPOSITIONS 12/07/2012 Order of Non Suit (Judicial Officer: Pierson, Don) OTHER EVENTS AND HEARINGS 05/23/2011 Original Petition Doc ID# 1 05/26/2011 Citation Musacarella, Michael Served 06/02/2011 Response Received 06/27/2011 Returned 06/06/2011 06/27/2011 Defendant's Original Answer Doc ID# 2 06/27/2011 Vacation Letter Doc ID# 3 08/08/2011 Designation of Lead Counsel Doc ID# 4 08/17/2011 Letter Re: Objection & Response to Discovery Doc ID# 5 08/25/2011 Notice to Take Deposition Doc ID# 6 09/27/2011 Defendant's First Amended Original Answer Doc ID# 7 11/22/2011 Certified Deposition of Custody Records Doc ID# 8 11/29/2011 Certified Deposition of Custody Records Doc ID# 9 12/30/2011 Certified Deposition of Custody Records Doc ID# 10 02/21/2012 Vacation Letter Doc ID# 11 06/06/2012 Motion to Substitute Counsel Doc ID# 12 06/08/2012 Order to Substitute Counsel Doc ID# 13 07/16/2012 Notice of Dismissal by Court Doc ID# 14 07/30/2012 Letter Requesting Setting for Trial Doc ID# 15 10/02/2012 Order Setting Trial Doc ID# 16 10/29/2012 Rule 11 Agreement Doc ID# 17 11/26/2012 CANCELED Jury Trial (9:00 AM) (Judicial Officer Pierson, Don) Settled 11/26/2012 Reset by Court to 11/26/2012 12/06/2012 Motion for Non Suit Doc ID# 18 12/07/2012 Order for Non-Suit Doc ID# 19 12/07/2012 Civil Docket Doc ID# 20 FINANCIAL INFORMATION Defendant Musacarella, Michael Total Financial Assessment 22.00 Total Payments and Credits 22.00 Balance Due as of 10/17/2014 0.00 06/28/2011 Transaction Assessment 22.00 06/28/2011 Mail Receipt # CCL-0308748 Amis & Farish (22.00) Plaintiff Levee, Cathey Total Financial Assessment 223.00 Total Payments and Credits 223.00 Balance Due as of 10/17/2014 0.00 05/23/2011 Transaction Assessment 219.00 05/23/2011 Transaction Assessment 4.00 05/23/2011 Mail Receipt # CCL-0306945 Modjarrad & Associates PC (223.00) APPENDIX FIFTEEN; NEW EVIDENCE –ABUSE OF PRESCRIPTION DRUGS, CHRONIC FOR FRACTURES 3|Page 4|Page 8|Page 11 | P a g e 13 | P a g e 14 | P a g e 17 | P a g e 19 | P a g e 20 | P a g e 21 | P a g e 22 | P a g e 23 | P a g e 24 | P a g e 25 | P a g e 26 | P a g e 27 | P a g e 28 | P a g e 29 | P a g e 30 | P a g e 31 | P a g e APPENDIX FIFTEEN; NEW EVIDENCE –ABUSE OF PRESCRIPTION DRUGS, CHRONIC FOR FRACTURES 3|Page 4|Page 8|Page 11 | P a g e 13 | P a g e 14 | P a g e 17 | P a g e 19 | P a g e 20 | P a g e 21 | P a g e 22 | P a g e 23 | P a g e 24 | P a g e 25 | P a g e 26 | P a g e 27 | P a g e 28 | P a g e 29 | P a g e 30 | P a g e 31 | P a g e Cathey Levee's claim of 80% disabled is not supported anywhere in medical evidence.This page from the business records affidavit of the states shows a contradiction to the statement Yet Prosecutor Rodgers made it a major point in his closing to accuse Theodore Levee of being untruthful. Prosecutor Rodgers is guilty of malfeasance Claim to Hurst PD 80% disabled - 1st report of rib inj. Saturday, December 03, 2011 5:50 PM 5/13/10 HPD Report 10-2679.2 Victim services Cleared out bank account Unable to pay bills Crime Victims comp. Other photos o bruises taken several days later Broken rib overlooked Advised to call prosecutor Get med record and photo to prosecutor 5/14/10HPD Report 10-2679.3 80% Disabled Mostly wheelchair bound Advised DA Injury to a disabled person Business Aff. obtained from Tarrant County Court House. TX Ortho & Spine 4/12/10. Dr. Kadoko "We had a long discussion again. She wants knee fixed, but came a motorized scooter. Given that she uses that, it is suggested that functional level is limited; coupled with RA it is not clear that ACL reconstruction is indicated. She really said the scooter was obtained on the recommendation of her attorney. That she is otherwise "very active'. Theodore Levee observations. Cathey Levee is involved in a questionable auto accident lawsuit alleging a debilitating back injury 6/2009. Ted Levee started questioning the need and scope of injury in third quarter of 2009. Major source of contention based on Ms. Levee's ability to go dancing for hours wearing high heels, possibly exaggerating symptoms and comments concerning "ducking meetings" at work. Injury based on Mr. Levee's observations and the Levee's could not show a correlation to the level of pain and evidence of injury. Ms. Levee climbed stairs, shopped and behaved as if nothing was wrong when she was away from work and not in the public eye. This was the same time frame as Dr. Callaghen commenting Ms. Levee was creating illness in the children and Ms. Levee ordered Katy removed from mental health and drug treatment ADA. Mid - October 2009. 1. Does Cathey Levee have a disability? 2. Does Cathey Levee have a impairment 3. What is the basis for Cathey Levee's claim to the Hurst Police Dept. of being 80% disabled at the time of the allegation of assault on 3/10/10? 4. Has Cathey Levee had a Functional Capacity Evaluation? 5. What is the original injury? 6. What is the original cause of the injury? 7. Did Cathey Levee make the number up? APPENDIX THIRTEEN; PROSECUTORS FALSE AFFIDAVIT TO FEDERAL COURT 3-001 3-002 3-003 3-004 3-005 3-006 3-007 AS STATED BY TIMOTHY RODGERS; (Mr. Rodgers statements are in italics) (1) Summary of Facts (As reported by Catherine Levee and the Hurst Police Department) a. A Federal Courts review is limited to the record that was before the state court that adjudicated the claim on the merits.1 On Saturday April 10, 2010 at about 8:53 PM, Officer Jimenez with the Hurst Police Department was dispatched to Hurst-Euless-Bedford Hospital in reference to a domestic violence assault. Once there Jimenez spoke to Catherine Levee (Cathy) who reported that she had been assaulted by her husband, Theodore Levee. She stated that she and Theodore had gotten into an argument about inappropriate comments he had been making to their- 1 As quoted in Magistrates Order , second page, Document 37 Page 2 of 2 Page ID 464 Cullen v. Pinholster, 131 S.Ct. 1388,1398 3-008 3-009 3-010 (3) Theodore kicked Cathy numerous times in the leg. a. Incorrect. 1. Fact in the trial record that was before the state court Defense Bell cross of Cathey Levee with objection by Mr. Rodgers 80.7 Q. Do you remember if you told them what had 80.8 happened? Did you give them -- the -- the officers your 80.9 version from the Hurst Police Department as to what 80.10 happened? 80.11 A. Yes. 80.12 Q. Okay. Do you remember telling the police that 80.13 he had kicked you numerous times in the legs? 80.14 A. No. 80.15 Q. So if the police report says that, would it be 80.16 accurate or inaccurate? 80.17 MR. RODGERS: Objection, Your Honor. The 80.18 police report is hearsay, and if he wanted to 80.19 cross-examine about what an officer may say, I 80.20 understand that, but he's cross-examining off of a 80.21 document with nobody to impeach on that. 3-012 3-013 (4) Her anterior cruciate ligament was torn a. Surgery in 1975 for right knee and was part of a prior injury 1. In fact the evidence in Business Record Affidavit Texas Health HEB 00022 a. Anterior cruciate ligament disrupted 2. Allegation was part of an going complaint of pain from 1975 Preexisting right knee surgery Business Records Affidavit 06/26/2002 Arthritis Center of Texas (pg. 2 Medical History) 3. Examples – sampling of Past complaints of right knee injury 3-014 3-016 3-017 Examples in evidence of Past Complaints of Right Knee Injury 3-018 3-019 3-020 3-021 (6)And medial meniscus torn a. Partially incorrect 1. The fact in evidence in Affidavit Texas Health HEB 00022 a. medial meniscus diffusely abnormal i. Prior surgery 1975 3-023 (7)Fibula fractured in two places a. Incorrect – medical evidence shows one slight subtle proximal fibular fracture (crack). 1. Second fracture is untrue and nowhere in medical evidence. 2. Based on history in evidence fractures as a chronic condition existed, occurring before and since April 10 2010. a. 4/25/06 Casting for fibular fracture b. 12/30/10 Casting for fibular fracture c. Acute on chronic for fractures (Dr. Kadoko) 3. In fact the evidence in Affidavit Texas Health HEB 00024 indicates a single possible fracture barely evident 4/25/06 Casting for fibular fracture (Subjective) 3-024 3-025 12/30/10 Casting for fibular fracture (Subjective third paragraph) Acute on Chronic for Fractures per Dr. Kadoko (Assessment) 3-026 3-028 (8)Later learned a rib had been broken during assault a. Untrue 1. HEB Business Affidavit 000013 –No other Injuries at this time. No other Complaints. Denys any other injury during this incident 2. No complaint made from 4/10/2010 to 5/09/2010 despite numerous doctor and therapy visits 3. Medical report 5/09/2010 cannot state any time of injury – only “Focal soft tissue adjacent to the left lateral fourth rib which has areas of cortical disruption. This could be a minimally displace fracture although malignant etiology is not excluded”. b. No medical evidence before the court of a rib injury c. Photograph and testimony indicate injury to right side of chest. 3-030 HEB Bus. Rec. Aff. 000013 –denies any other injury Medical Report 05/09/2010 – left lateral rib 3-031 3-033 Copy of Pictures submitted into evidence indicate right side of body 10/06/2010 Radiology report indicating Left side injury of unknow time. 3-034 (9) Suffering from Rheumatoid arthritis form many years She occasionally used a wheel chair to move around a. False 1. The wheel chair is unrelated to the Rheumatoid Arthritis as stated in the record 2. Wheel chair was the result of an attempt at a civil lawsuit in a 2009 auto Accident(pg. ID 531) 3. Wheelchair was admitted to Dr. Kadoko as being “At the recommendation of my attorney” (Bus. Rec Aff. Dr. Kadoko 4/23/2010) Wheelchair was result of claim of lower back injury in 2009 Auto Accident attempted lawsuit and additional source of Pain Medications. 3-039 3-040 (10) But was able to function with a cane. a. Cathey Levee never ever used a cane – not in testimony nor in evidence 3-042 (11) The State's witnesses testified, inter alia, that they had seen Theodore demonstrate what they all called a "whip kick" in the past. a. False. 1. Mr. Rodgers asserts “they”, “inter alia”. 2. Alexandra is the only one of the children to claim in testimony anything about a “whip kick” 3. Term whip kick was in April 2010 Divorce Affidavit in that the term was from Cathey Levee’s father in the ER on April 10 2010 as sworn April 2010 by Cathey Levee (page 3) 3-043 3-044 3-045 3-046 3-047 3-048 3-049 (12) Theodore claimed it was a movement he learned while in the military. a. Totally false. b. Not in testimony 1. There was no testimony or statement in existence where the claim of any such statement by Theodore Levee- again Mr. Rodgers made this up. 3-050 (13) After the conviction, attorneys for the State and the defense had a discussion off of the record regarding how the trial was going to proceed. As a result, both parties agreed on a punishment for Levee.In exchange for his admission of guilt and waiver of right to appeal his conviction, Levee agreed to a sentence of ten years in prison which, by agreement, was probated over a period of ten years. In addition, Levee pleaded guilty to one pending violation of a protective order case and the State agreed to dismiss another. a. Incorrect 1. In 28 U.S.C. 2254 states reply in 11.072 is that Levee did not plead guilty 2. The actual occurrence in the record of the trial was the Court ordered defense counsel to find COMPACT AGREEMENT authority to bond awaiting a presentencing Investigation. 3. Mr. Bell never attempted to get information, instead making an agreement to prevent the review of the trial to suppress the ineffective assistance of counsel. 3-051 States reply to Petition for Writ of Habeas Corpus 3-052 3-053 3-054 Trial recess for COMPACT information 3-055 3-056 3-057 (14) In prosecuting this case, I did not suppress any sworn statements of Catherine Levee. I did not seek to suppress any statements and only moved the Court to prevent both sides from mentioning circumstances surrounding the pending divorce that were not relevant to the criminal trial. a. False 1. A June 10 2010 letter to Mr. Rodgers stated there existed a sworn statement by reputed eye witness Catherine Levee. a. Mr. Rodgers hid this letter and the sworn statement. b. Theodore Levee submitted a request to authenticate the document to Tarrant County District Attorney’s Office and was denied evidence – from a “Open File Discovery Rules” trial. c. The subsequent action on Mr. Rodgers part to keep the information of the sworn statement of Catherine Levee suppressed shows the 3-058 involvement of Texas Attorney General suppressing the documents in open file discovery and request under open records act. d. The request was made in the 28 U.S.C.2254 action as well as in the attempt to appeal the civil ruling of the Divorce Court depriving Theodore Levee of all rights and property. Ordinarily, a witness may not be impeached by a pending charge. However, a court may permit impeachment by pending charges to show the bias, prejudice, or interest of the witness in testifying. Nethery v. State, 692 S.W.2d 686, 699 (Tex. Crim. App. 1985) cert. denied, 474 U.S. 1110, 88 L. Ed. 2d 931, 106 S. Ct. 897 (1986). An issue regarding the general credibility of a witness in a criminal trial is not a material issue in the sense that it will justify the admission of inherently prejudicial evidence of details of an extraneous offense committed by the witness. Murphy v. State, 587 S.W.2d 718, 722 (Tex. Crim.App. [Panel Op.] 1979). 3-059 Letter June 10 2010 to ADA Rodgers stating “Katy has written a notarized statement of the events of 4/10 /10 and both of us are willing to testify.” Cathey.Levee@fwisd.org To 'TSRodgers@TarrantCounty.com', 'Beverly Storey', 'Jeanne Insuaste', 'thelevees5@msn.com' From: Levee, Cathey (Cathey.Levee@fwisd.org) Sent: Thu 6/10/10 7:23 PM To: 'TSRodgers@TarrantCounty.com' (TSRodgers@TarrantCounty.com) Cc: 'Beverly Storey' (bevstorey@gmail.com); 'Jeanne Insuaste' (jeannecpl@sbcglobal.net); 'thelevees5@msn.com' (thelevees5@msn.com) Hotmail Active View Tim, Ted continues to contact and harass my family. He claims to have not been to my home on 4/28 because he was at Dr. Grant’s office. Please see the attached map and how close it is to my home, 7 minutes (or less). Additionally he claims he wasn’t at my home on 5/19 or 5/25 which is shown on the temporary computer file I sent you earlier. On June 3rd when I checked my computer again, the temporary file from CWA6215 had been deleted, so that would be the third time he has entered my home. The time to get to the court house from my home says 21 minutes on the attached map but I can assure you that it does not take that long without traffic. According to several sources the ankle monitor is not perfect and if it is a range, my home would not be off the path he was supposed to be on. Also, I have been told that you can wrap them with aluminum foil to prevent the signal from going through. It would only take 5 minutes for him to do these things. He also has letters from my three daughters they wrote their biological father in 2005 when we started the adoption process. When he was arrested and Officer Disraeli came to pick up his belongings, I gave him ALL his clothes, jewelry and medication. NOTHING ELSE! If he has these letters, then he has gotten them from my file cabinets at the house. He also has taken tools and the original copy of the two year protective order, my daughter graduation announcements and other various items. He also has a signed note from the doctor in Ennis who performed the rotary cuff surgery stating that he gave Ted hydrocodone and “hi 3-060 wife” gave him something else that would make him crazy. I find it hard to believe that a doctor who has never met me or seen my medical records would write such a letter, but that is what he is using for his defense. Also, on the original form in February from Dr. Grant’s office, he wrote that he was only allergic to iodine and Demerol. On the 4/28 form he added vicodin (hydrocodone, Norco) to the list. He has used this medication for pain multiple times and I have a prescription bottle that he was given for pain when he burned his hand a few years ago. This is the bottle I gave him his medicine from before the assault because it was too late and the pharmacy was closed when I got home to pick up the one from the Ennis doctor. He has also taken my hydrocodone on MULTIPLE occasions when his shoulder hurt before his surgery. He also has several copies of my medical claims for my car wreck and I do not know how he has gotten them without being in my house. He is trying to claim medical fraud from my car accident last year. I had all these records in my home by my bed. He IS entering my house! Why won’t anyone with any authority believe me? Also, when Ted first started going to Dr. Grant in February of 2010 he signed a HIPPA form that I could access his records. So I did. The doctor diagnosed him at that time as Bipolar II, ADD, with paranoid and narcissistic tendencies, in addition to rage and control issues. According to the medical records he is NOT taking any medication to control his Bipolar Disorder. He is only taking Adderall and Valium. I can tell you that Adderall exacerbates his delusional behavior. If you would like me to FAX you those documents I can. As a Licensed Professional Counselor I can tell you that this combination is dangerous and prone to stalking and unpredictable behavior. This is exactly the kind of behavior that he exhibited when he kicked my oldest daughter out of the house is 2009. He stalked her, remotely accessed her computer and called her work multiple times to get her fired. I also recently discovered that he had a key logger on our home computer and had cameras pointed at the girls bedrooms and bathroom. Alexandra has also confided in me that he tried to touche her inappropriately on a volley ball tournament in Houston in 2006. I have always thought he was sexually inappropriate with her but never really put the pieces together until all three girls told me comments that he has said to them. My family therapist has said that Ted is a sexual predator who is after Alexandra and Katy. The girls had not told me many things because they knew I was sick and need the income and insurance. I do not feel safe, protected or that anyone is listening to how crazy this man is. He has contacted Katy (my youngest daughter) three times on FaceBook, “pinged” my cell phone to locate me and changed the passwords on my ATT account so I cannot access the internet at home. I cannot close the account nor do anything with it because he is listed as the only authorized user. He repackages the bill, which is sent to his Kaufman address and then resends it to me the day before the utility is disconnected. Do I have to die or suffer more physical injuries in order to get this man to leave us alone? I understand he is going to court on the 23rd of this month. I would like to be there. Katy has written a notarized statement of the events of 4/10 /10 and both of us are willing to testify. Please help us. If something happens to me or my girls, my family and attorney will hold your office accountable. I do not care if he is fired; this is not about money, I want to feel safe in our home. I should not have to enter the witness protection plan to live our lives. This is exactly what the Battered Women’s Foundation has recommended. We are NOT safe. Thank you, Cathey 3-061 OPEN RECORD REQUEST FOR JUNE 10 2010 ADA RODGERS LETTER Theodore Levee 925 Altara Ave Coral Gables FL 33146 Ashely Forth ADA Tarrant County District Attorneys’ Office 401 W Belknap Ft Worth TX 76196 In the matter OR 2013-19273 According to the letter from the AG of Texas Office, AAG Jennifer Burnett, We are past deadline for the release of the requested documents referred to in this correspondence #OR 2013 -19273 That would include June 10, 2010 and all other correspondence between the DA office and Cathay Levee, sent from The levees5@msn.com Cathey.Levee fwisd.org And any other and all correspondence in the completed criminal case. The deadline according to the AG was 10 days after the issuance of the letter dated November 5 2013. This action is jeopardizing factual claims in another action and as such considerably jeopardized the conviction and integrity of the District Attorney’s office of Tarrant County. Please comply at once as a like correspondence has been forwarded with the AG. Theodore Levee 925 Altara Ave Coral Gables FL 3-062 Jennifer Burnett PO Box 12548 Austin TX 78711-2548 Assistant Attorney General Open Records Division OR 2013-19273 Email between DA and Cathy Levee Per your correspondence and the opinion of the Attorney General I have not received the requested documents and ask the assistance of the State of Texas in enforcing and holding all accountable equally under the law. I have contacted the ADA Ashely Fourt date same and it is imperative to have these records in an action before the United States District Court North Texas Fort Worth Civil Action No. 4;13-cv-211-y, The matter is time sensitive. Sincerely Theodore Levee 3-063 3-064 3-065 3-066 From: "Thelevee@yahoo.com" Date: August 26, 2013, 3:53:47 AM EDT To: "8178843333@metrofax.com" <8178843333@metrofax.com> Subject: Fwd: thelevee@yahoo.com has sent you a file Theodore Levee 925 Altara Ave Coral Gables Florida 33146 972-835-6777 Fax 305-665-5597 Email thelevee@yahoo.com August 23, 2013 Tarrant County District Attorney Public Information Officer Tim Curry Criminal Justice Center 401 West Belknap Fort Worth, TX 76196 Fax 817-884-3333 Dear Officer for Public Records: This request is made under the Texas Public Information Act, Chapter 552, Texas Government Code, which guarantees the public's access to information in the custody of governmental agencies. I respectfully request copies of the following information: Email records concerning; State v.Theodore Floyd Levee Correspondence between assistant district attorney Tim Rodgers and Cathey Levee. While request is for all correspondence, specifically included is the email sent to Mr.Rodgers by Cathey Levee on the account of Mr.Levee's - thelevees5@msn.com and also the email address - cathey.levee@fwisd.org. The email of June 10, 2010 is specific to the actions and knowledge of the district attorneys office in the prosecution of above case. In the interest of expediency, and to minimize the research and/or duplication burden on your staff, I would be pleased to personally examine the relevant records if you would grant me immediate access to the requested material. Additionally, and since time is a factor, please communicate with me by telephone or fax rather than by mail. My telephone number is: 972-835-6777 3-067 Fax 305-665-5138 Disclosure of this information is in the public interest because providing a copy of the information primarily benefits the general public. I therefore request a waiver of all fees and charges pursuant to Section 552.267 of the act. I shall look forward to hearing from you promptly, as specified in the law. Thank you for your cooperation. Sincerely, Theodore Floyd Levee Electronically signed 5690 3-068 (15) At no time did I move to suppress any mention of the term "whip kick." The term was used frequently throughout the trial by both the State and defense without objection. a. Untrue 1. In cross examination of Theodore Levee Prosecutor Rodgers asked where the term came from and objected to answer. 3-069 Mr. Rodgers objection to answer of origination of the kick from divorce affidavit as stated by Cathey Levee’s father April 10 2010. 3-070 3-071 (16) The Tarrant county District Attorney's Office maintains an open file policy. All records and reports that are not work product for the office are made available to the defense throughout the life of a criminal case a. Untrue 1. See OPEN RECORD REQUEST FOR JUNE 10 2010 ADA RODGERS LETTER 3-072 (17) All reports and records, including those detailing Catherine Levee's medical condition before and after the assault, were made available to the defense before the trial began. a. False 1. Evidence was missing radiology files necessary to evaluating the evidence where not in record and make any medical evaluation to cause impossible. 2. 3-073 Attorney Mitchell upon discovery the files in criminal case where incomplete and discovering the needed documents to evaluate how injury occurred. New evidence shows injury was inconstant with testimony and prior statements of Cathey Levee and Catherine Levee. 3-074 Records Deposition Service of Texas notification of additional records 3-075 3-076 3-077 Incomplete Records affidavit from HEB Texas Health Harris Hospital 3-078 3-079 (18) I am not aware of any perjury committed by any witness for the State. Further, I do not believe based on the case and my investigation, that any of the State's witnesses committed perjury. Per my continuing ethical obligation of candor to the tribunal, had I become aware of or suspected a State's witness committed perjury, I would have reported it to the Court immediately. a. False 1. Shotgun a. Presence of a Shotgun in testimony of Catherine Levee contradicted Cathey Levee’s Testimony b. Officer Jimenez stated under oath he asked if any weapon was involved and he replied he did and the response was no. 2. Testimony stating witnesses saw Theodore Levee prior to the incident. a. Police report Cathey Levee stated 3. Whip kick testimony was false and was known or should have been known to be in divorce affidavit by Mr. Rodgers. 3-080 4. Injuries do not match medical evidence and was known or should have been known by Mr. Rodgers 5. Prior statements in HEB Business Records Affidavit are contrary to testimony in trial and Mr. Rodgers knew or should have known. 3-081 SHOTGUN ALLEGATION IN TESTIMONY It is in direct contradiction in testimony concerning a shotgun. Cathey Levee stated she saw it and Mr. Levee was cocking it despite having a rotator cuff replaced in surgery less than 24 hours before. Catherine Levee stated she never saw the shotgun. The officer taking the report testified in a separate civil trial that on April 10 2010 he ask if a weapon where involved and Cathey Levee told him no. There is an obvious and compelling discrepancy in testimony. 3-082 3-083 3-084 3-085 3-086 3-087 HURST POLICE OFFICER TESTIMONY IN CIVIL COURT 3-088 3-089 (19) Through testimony, photographs and medical records, I provided evidence to the judge in this case of the serious bodily injury this victim suffered as a result of the offense. a. Incorrect 1. In determining whether an injury constitutes serious bodily injury, the relevant inquiry is the extent of the injury as inflicted, not after its effects have been ameliorated by medical treatment. Tex Jur Criminal Law: Offenses against the Person § 282 2. The facts of a preexisting ongoing complaint for several years in a knee injury, factual historical medical records supporting chronic hairline bone fractures of unknown origin, coupled with the plea of not guilty should have warranted some degree of integrity in verifying evidence. No verification exists 3. Suppression and lack of diligence investigating caused a flawed prosecution and the misleading and completely untrue statements and substandard 3-091 performance of Mr. Welchell and Mr. Rodgers predicated the necessity to suppress any form of review. 3-092 (20) During the Judge's admonishments of Mr. Levee, my co-counsel Assistant District Attorney Lloyd Whelchel brought to the Court's attention that there may be issues with transferring any probation Mr. Levee was on to Florida a. Untrue, misleading and erroneous. 1. It was after admonishments and the Court asked if the state had any further conditions. 2. The state then made the COMPACT statement and is complete contradiction to the law as contained in that agreement 3. The game of gotcha as played with malice and intent by the district attornety office is clearly evidence 4. The additional insult of failing to apply for COMPACT transfer is evident in the records. a. The Court and the District Attorney’s Office are tr4ained by COMPACT AGREEMENT and knew or should have known the rules as they apply and instead used false and 3-093 misleading actions to violate the integrity of the Court. 5. The actions of the District Attorney’s Office in the entire adjudication fails to conform to the statues of the state as it apply to the obligation of a prosecutor. a. CODE OF CRIMINAL PROCEDURE TITLE 1. CODE OF CRIMINAL PROCEDURE CHAPTER 2. GENERAL DUTIES OF OFFICERS Art. 2.01. DUTIES OF DISTRICT ATTORNEYS. It shall be the primary duty of all prosecuting attorneys, including any special prosecutors, not to convict, but to see that justice is done. They shall not suppress facts or secrete witnesses capable of establishing the innocence of the accused. 3-094 (21) Mr. Whelchel stated on the record that, per the interstate compact, any probation Mr. Levee received could not be transferred to Florida unless Florida consented to the transfer a. False, malfeasant, incorrect performance by District Attorney’s office. 1. The Court and the prosecutor knew or should have known COMPACT agreement. Courts officers have an obligation to be abreast of the law and procedures and incorrectly stating facts causing distortion, disruption, and incorrect information in process was egregious, irresponsible and unethical. 2. This allegation is further enforced in that the 7 day requirement was not follow and in fact the transfer was not submitted for over 11 months after sentencing. ii. The TDCJ Interstate Compact Office provided training to Community Supervision and Parole Officers, the Judiciary, District Attorneys and the Board of Pardons 3-095 and Paroles to ensure compliance with compact laws, standards, policies, and procedures. 1. Tarrant County District Attorney’s office misstated COMPACT Rule Rule 3.103 - Reporting instructions; offender living in the receiving state at the time of sentencing- (a)(1) A reporting instructions request for an offender who was living in the receiving state at the time of sentencing shall be submitted by the sending state within 7 business days of the sentencing date or release from incarceration to probation supervision. The sending state may grant a 7 day travel permit to an offender who was living in the receiving state at the time of sentencing. Prior to granting a travel permit to an offender, the sending state shall verify that the offender is living in the receiving state. (22) In this point, Mr. Levee references the assault where he was the listed victim. a. The Tarrant County District Attorney is ultimately responsible for all cases and passing the buck is not acceptable practice. 3-096 1. The DA not only failed to protect the rights under the law of Theodore Levee – the ensuing action actual made the DA an accessory after the fact to the crime in covering up the assault. 2. The failure to even bring the second assailant to justice is an insult. 3. The rights of Mr. Levee as a victim of family violence where abridged by The Tarrant County District Attorneys Office. (23) In 2010, it was the common practice of' prosecutors in Tarrant County to convey this offer to offenders with misdemeanor assault charges pending but who have little to no criminal record. Mr. Edmondson’s case was dismissed. a. Mr. Rodgers statement is made in reference to an act of family violence. Mr. Edmondson was Mr. Levee’s father – in-law at the time of the assault. b. § 71.004. FAMILY VIOLENCE. "Family violence" means: 3-097 (1) an act by a member of a family or household against another member of the family or household that is intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the member in fear of imminent physical harm, bodily injury, assault, or sexual assault, but does not include defensive measures to protect oneself; (2) abuse, as that term is defined by Sections 261.001(1)(C), (E), and (G), by a member of a family or household toward a child of the family or household; or (3) dating violence, as that term is defined by Section 71.0021. Added by Acts 1997, 75th Leg., ch. 34, § 1, eff. May 5, 1997. Amended by Acts 2001, 77th Leg., ch. 91, § 2, eff. Sept. 1, 2001. c. Mr. Rodgers again offends the commons senses of the average person to state this was the “common practice” in family violence. d. The second perpetrator, Cameron Mendez was cited and dismissed by Tarrant County District Attorney’s office, despite eyewitness testimony Mr. Levee did not provoke the attack, Mr. Edmondson hit him several times and Mr. Mendez jumped in. Mr. Levee was still recuperating from shoulder surgery three months before, had limited use of his right arm and never threw a punch. He was attacked in front of his attorney at the time Dawn Roberts, who was never questioned in the investigation. Never adjudicated. Mr. 3-098 Mendez has prior arrest for assault. His accomplice who was also arrested was Mr. Levee’s daughter Alexandra Levee. i. From The Tarrant County Sheriffs Department security camera in the parking garage showing Mr. Edmondson holding Mr. Levee and Mr. Mendez punching him. ii. From The Tarrant County Sheriff’s Department security camera in the parking garage Mr. Mendez kicked Mr. Levee after Mr. Edmondson pulled him to the ground. 3-099 iii. The full sequence of the security camera is available. (24) Any agreement between Mr. Edmondson and Mr. O’Toole )(ADA Tarrant County) was made without my knowledge. a. It was in the knowledge of the District Attorney’s Office of Tarrant County and this is a lame attempt at avoiding the D.A.’s responsibility. i. 3-100 Summary This information is a clear and concise record of and abridgment of the law. CODE OF CRIMINAL PROCEDURE TITLE 1. CODE OF CRIMINAL PROCEDURE CHAPTER 2. GENERAL DUTIES OF OFFICERS Art. 2.01. DUTIES OF DISTRICT ATTORNEYS. Each district attorney shall represent the State in all criminal cases in the district courts of his district and in appeals therefrom, except in cases where he has been, before his election, employed adversely. When any criminal proceeding is had before an examining court in his district or before a judge upon habeas corpus, and he is notified of the same, and is at the time within his district, he shall represent the State therein, unless prevented by other official duties. It shall be the primary duty of all prosecuting attorneys, including any special prosecutors, not to convict, but to see that justice is done. They shall not suppress facts or secrete witnesses capable of establishing the innocence of the accused. Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722. It is a clear and concise record of the neglect of duty. Art. 2.03. NEGLECT OF DUTY. (a) It shall be the duty of the attorney representing the State to present by information to the court having jurisdiction, any officer for neglect or failure of any duty enjoined upon such officer, when such neglect or failure can be presented by information, whenever it shall come to the knowledge of said attorney that there has been a neglect or failure of duty upon the part of said officer; and he shall bring to the notice of the grand jury any act of violation of law or neglect or failure of duty upon the part of any officer, when such violation, neglect or failure is not presented by information, and whenever the same may come to his knowledge. (b) It is the duty of the trial court, the attorney representing the accused, the attorney representing the state and all peace officers to so conduct themselves as to insure a fair trial for both the state and the defendant, not impair the presumption of innocence, and at the same time afford the public the benefits of a free press. Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722. Amended by Acts 1967, 60th Leg., p. 1733, ch. 659, Sec. 3, eff. Aug. 28, 1967. 3-101 Perjury only happens under oath. Timothy Rodgers vowed to tell the truth to someone who is authorized to administer the oath. And, the proceeding was “competent,” that is, authorized by law. Perjury requires a statement and Timothy Rodgers intent was to mislead. Timothy Rodgers knew that his testimony is false and with the intent to mislead the court Inconsistent statements can lead to perjury. Timothy Rodgers testimony viewed as a whole is shameful. Sworn, written statements submitted to courts or government agencies are statements made in a proceeding and subject to perjury laws. Timothy Rodgers “material” statements can be perjury. The false statements influenced the proceedings. Timothy Rodgers made some material statements that are superfluous to the outcome and may still be perjury. Even where the false sworn statements does not affect the outcome of a case, Timothy Rodgers may be prosecuted for perjury. Timothy Rodgers perverted the truth. 3-102 3-103 3-104 3-105 APPENDIX TWELVE; MOTION FOR NEW TRIAL APPENDIX ELEVEN; STATES REPY AND HABES COURTS ORDER 11.072 APPENDIX TEN; INJURY OF THE KNEE IN THIS CASE The Injury of the Knee APPENDIX 10. ARGUMENT; INJURY OF THE KNEE A. The injury showing the lateral ligaments of the knee. The claim is the knee was injured by an outward motion to the side or 90 degree angle injuring the ACL. The prior injury and lack of specificity make the records inconclusive and vague as to the cause. A more logical explanation better fitting the injury is as pictured above. This type of injury is consistent with the description in the radiology report and the lack of involvement of the other ligaments. The following pages show the claim and the explanation of the injury. 1 The Injury of the Knee C. In an ACL disruption based on a rotary knee instability anteromedial instability - when medial platue of tibia rotates anteriorly and externally as joint opens on medial side ,this implies disruption of medial capsular ligament, medial collateral ligament, posterior oblique ligament and anterior cruciate ligament. D. One plane anterior instability is present when the tibia moves forward on femur due to anterior pull of leg when foot is in neutral position. This include disruption of anterior cruciate ligament, lateral capsular ligament [partial or complete], medial capsular ligament [partial or complete]. 3 The Injury of the Knee E. Front View - Normal Ligaments F. Strain and bruise – no ligament tear. 4 The Injury of the Knee G. Medial Collateral Ligament is torn, Anterior Crucial Ligament is torn , Medial Meniscus Is damaged. Conclusion; In a sideways, moderate movement, the ACL, MCL and Meniscus are involved. 5 The Injury of the Knee H. In a sever movement to the side, tears occur in the ACL, MCL and Meniscus. I. The evidence in the MRI indicates an injury inconsistent with testimony. 1. The anterior cruciate ligament is disrupted 6 The Injury of the Knee 2. Posterior cruciate ligament is intact. 3. The medial collateral ligament appears intact 4. The lateral meniscus appears intact. 5. The quadriceps and patellar tendons are intact. 6. The medial meniscus is diffusely abnormal 7. Complex tear of the anterior horn, body and part of the posterior horn of the medial meniscus 8. Prior history same injury treated previously . J. MRI EXT LWR RT JOINT WO 04/10/2010 2229 EM1308-10 561609 CONT 7 The Injury of the Knee Examination: MRI right knee without contrast Ordering Physician: DANIEL E PECKENPAUGH Date: 4/10/2010 10:29 PM History: DERANGEMENT technique: Multiplanar, multi-sequential and right right knee without contrast Findings: The anterior cruciate ligament is disrupted. Posterior cruciate ligament is intact. Contusions are seen in the postero-medial and posterior lateral tibia, anterior aspect of the tibia and anteromedial femoral condyles. Fat fluid level seen within a moderate joint effusion suggest articular disruption. Discrete cortical disruption on MRI is not appreciated. Consider thin section CT to identify the sites of likely nondisplaced fracture which is not clearly evident but likely in one of the area of contusions and likely in the posterior aspect of the tibial plateaus. The medial meniscus is diffusely abnormal with no significant identifiable anterior horn or body and a truncated posterior horn. There is a displaced meniscal fragment seen within the posterior intercondylar notch, image 8 series 6. The lateral meniscus appears intact. The quadriceps and patellar tendons are intact. The medial collateral ligament appears intact. Extensive soft tissue edema noted about the knee including edema superficial to the medial collateral ligament, likely reactive. The lateral collateral ligament complex is intact. Small hypointense normality within patient's joint effusion measuring 3.6 mm on image 4 series 6 likely a loose osteocartilaginous body, possibly from either the postero-medial or posterior lateral tibial plateau. Impression: Disrupted anterior cruciate ligament Bone contusions in the posterior medial and lateral tibia and anterior tibia and anteromedial femur. Lipohemarthrosis indicates articular disruption although the discrete fracture line is not identified on this MRI. Consider thin section CT as clinically appropriate. Complex tear of the anterior horn, body and part of the posterior horn of the medial meniscus with a displaced meniscal fragment in the intercondylar notch Small osteocartilaginous body 8 The Injury of the Knee 9 The Injury of the Knee 10 APPENDIX NINE; COURT: DON'T – DO NOT SAY ANOTHER WORD APPENDIX EIGHT; KNEE INJURIES AND HOW THEY OCCUR COMMON MEDICAL KNOWLEDGE APPENDIX SEVEN; PREEXSISTING CONDITION APPENDIX PREEXSISITNG FIBULAR FRACTURE APRIL 25 2006 APPENDIX SIX; DEFENSE CLOSING STATEMENT FAILED TO PROVIDE PREDICATE FOUNDATION OR TESTIMONY FOR CONFLICTING PRIOR STATEMENTS Trl Rcd.II Pg 12.25 If you look at the record again Pg. 13.1 There is several versions from the complaint APPENDIX FIVE; FAILURE OF DEFENSE OPENING STATEMENT TO SHOW PROMISED VARING STATEMENTS APPENDIX 4; COMPLAINT OF RIB INJURY Statement and pictures entered into evidence of the allegation of rib injury in assault in criminal trial are in conflict with medical evidence. 1. Medical records in evidence clearly show the radiology report as a past fracture and appearing on the left side of the body. a. Pictures and testimony claim an injury to the RIGHT side of the body. 2. Cathey Levee’s medical record indicate a continuous use of steroids. a. Ecchymosis existed and has been a persistent presentation throughout treatment. i. Ecchymosis during prolonged steroid therapy is most likely due to the fragmentation of elastic staining fibers, the elastotic degeneration of the collagen fibers, and their absence in the pericapillary spaces as a result of corticosteroids. Vol 86, No. 5 © 2014 American Medical Association. All Rights Reserved. 3. Cathey Levee convinced court ribs were part of injury a. however, the bruising she claimed on her right side is the opposite side of the rib injury discovered a month later. RADIOLOGY REPORT AND ILLISTRATION These appear to be bruises however they are An ecchymosis is the medical term for a subcutaneous purpura larger than 1 centimeter or a hematoma, commonly, but erroneously, called a bruise.[1] That is, bruises are caused by trauma whereas ecchymoses, a type of purpura, are not caused by trauma.[2] A broader definition of ecchymosis[3][4] (noun) \e-ki-ˈmō-səs\ is as: the escape of blood into the tissues from ruptured blood vessels. The term also applies to the sub-cutaneous discoloration resulting from seepage of blood within the contused tissue. TRIAL RECORD PICTURE ( COPY ) SUBMITTED INTO EVIDENCE R10/06/2010 Radiology Associates There is a healed lateral left fourth rib fracture and posterior fourth and fifth rib and seventh rib fracture 1. The location of specific rib fractures is an important indicator of related injury. a. Healed lateral left fourth rib fracture b. Healed posterior fourth rib fracture 2. Healed posterior left fifth rib fracture 3. Healed posterior left fifth rib fracture 4. Area photographs in evidence indicate a. Area on the RIGHT side of body. 5. Frontal image of the rib cage. Ribs 1-12 demonstrate the variable shape of the upper 9 ribs. The 12th rib does not articulate anteriorly. The sternum consists of the manubrium (M), the body (S), and the xiphoid (X). The ribs articulate with the sternum via the costochondral (CC) junction. C = clavicle. Posterior image of the thorax. The ribs are numbered 1-12. The clavicle (C) and scapula (S) are often involved in injuries that include rib fractures. RADIOLOGY REPORT AND ILLISTRATION 4/10/2010 20:13 (8:13) Comment Dr. Peckepaugh PTA Domestic dispute with husband Kicked in ER pg 10 knee. 4/10/2010 20:27 (8:27) Husband tripped her ER pg 9 4/10/2010 20:32 (8:32) Patient stated a below-DF, My husband tripped me.-DF ER Pg 8 4/10/2010 23:01 (11:00) he purposely bumped me into the wall , I stumbled & he did a “military take Vic Vol Statement Pg1 down” kick to my right knee. APPENDIX TWO; HEB EMERGENCY ROOM RECORDS APPENDIX ONE ;Constitutionally ineffective trial counsel. Index of Authorities Abney v. United States, 431 U.S. 651, 656, 97 S.Ct. 2034, 2038, 52 L.Ed.2d 651 (1977). 1 Anderson v. Johnson, 338 F.3d 382, 392 (5th Cir. 2003) 6 Arnold v. State, 685 P.2d 1261, 1265, 1267 (Alaska Ct. App. 1984) 5 Beans v. Black, 757 F.2d 933 (8th Cir.) , cert. denied, 474 U.S. 979 (1985) ; 7 Beans v. Black, 757 F.2d 933, 936 (8th Cir.) , cert. denied, 474 U.S. 979 (1985) . 6 McCoy v. Wainwright, 804 F.2d 1196, 1198 (11th Cir. 1986) 6 Rogers v. Maggio, 714 F.2d 35, 37 (5th Cir. 1983) 5 Scott v. Wainwright, 698 F.2d 427, 429 (11th Cir. 1983) 5, 7 See United States v. Wilkes, 20 F.3d 651, 653 (5th Cir.1994) 1 State v. Osborne, 684 P.2d 683, 691 (Wash. 1984) . 5 Strickland v. Washington, 466 U.S. 668, 690-91, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) . 6 Thomas v. Lockhart, 738 F.2d 304 (8th Cir. 1984) 7 Thomas v. Lockhart, 738 F.2d 304, 308 (8th Cir. 1984) 6 Thomas v. Lockhart, 738 F.2d 304, 308-09 (8th Cir. 1984) 7 United States v. Melancon, 972 F.2d 566, 567 (5th Cir.1992). 1 United States v. Pruitt, 32 F.3d 431, 433 (9th Cir.1994) 1 United States v. Henderson, 72 F.3d 463, 465 Henderson argues that the district court erred when it denied his motion to withdraw the guilty plea. The motion, Henderson asserts, should have been granted because he was denied adequate assistance of counsel. We must first determine whether Henderson has waived the right to raise such a claim on direct appeal. The right to appeal a criminal conviction is a statutory right, not a constitutional right. Abney v. United States, 431 U.S. 651, 656, 97 S.Ct. 2034, 2038, 52 L.Ed.2d 651 (1977). A defendant may waive statutory rights, including the right to appeal, as part of a plea bargaining agreement. United States v. Melancon, 972 F.2d 566, 567 (5th Cir.1992). However, we have previously noted, without deciding the issue that waivers of rights to appeal may not apply to ineffective assistance of counsel claims. See United States v. Wilkes, 20 F.3d 651, 653 (5th Cir.1994) (noting that waiver of postconviction relief in plea agreement may not apply to collateral attacks based on ineffective assistance of counsel). Without deciding the issue, the Ninth Circuit has expressed similar sentiments. See United States v. Pruitt, 32 F.3d 431, 433 (9th Cir.1994) ("We doubt that a plea agreement could waive a claim of ineffective assistance of counsel based on counsel's erroneously unprofessional inducement of the defendant to plead guilty or accept a particular plea bargain."). I. Defense counselor Steven Bell admitted in court record he did not investigate the eye witness or have any knowledge of what the witness testimony would be. 6:22 THE COURT: Okay. Now, with regard to the 6:23 respective witnesses that will be testifying, if either 6:24 side has an issue with regard to whether or not that 6:25 That witness should be heard by the Court, I expect you to 7:01 make a timely objection (Prosecution) 8:1 she is a witness in the case. He understands that we 8:2 are not going to go into any matters related to that 8:3 assault above and beyond the fact that it is pending. 8:4 And that-- I just want to make the Court 8:5 aware that we have made Defense Counsel aware of that 8:6 fact through Brady Notice, it's in existence, and we 8:7 have talked to Defense Counsel for Katy Levee about it. 8:8 THE COURT: All right. Mr. Bell, are you 8:9 going to limit your cross-examination of this particular 8:10 witness, or do – 8:11 MR. BELL: Iwill-- Iwill— 8:12 THE COURT: I need to have the defense 8:13 attorney on standby. 8:14 MR. BELL: I will limit it only to the 8:15 extent that obviously she would take the Fifth with 8:16 regard to that offense. 8:17 THE COURT: Okay. Does she need to have 8:18 her attorney present in your opinion? 8:19 MR. BELL: I would not anticipate so, but 8:20 again. 8:21 THE COURT: Well -- 8:22 MR. BELL: Yeah. Yeah. I'm not-- she’s 8:23 not my client, so I can’t-- I mean, obviously, I don’t 8:24 know-- 8:25 THE COURT: No, but what I'm asking is that Page 9 8:1 do you anticipate to go into any matters to try -- 8:2 attempt to impeach her And if you are, that's fine. 8:3 just need to have her attorney present. 8:4 Now, I don’t want to limit your 8:5 cross-examination. She's not your client. However, in 8:6 good faith and as an officer of the Court, can you tell 8:7 me whether or not that would be a prudent step? The 8:8 State’s telling me that they don’t anticipate the need 8:9 of the -- of the attorney to -- to be present that's 8:10 representing that particular witness. 8:11 MR. BELL: At this response -- at -- at 8:12 this juncture, it's difficult for me to tell you that 8:13 because she hasn't given any type of statement that I 8:14 have seen – 8:15 THE COURT: All right. 8:16 MR. BELL: --so, I mean, she-- if-- from 8:17 what I can tell, unless Tim can tell me wrong, she 8:18 didn't talk to the police. She's never testified 8:19 apparently in the divorce hearing. She didn't testify 8:20 in the protective order. So I don't know exact -- 8:21 exactly what she’s going to say. So it’s difficult to 8:22 make that determination. 8:23 Now, what I can tell you is if I get to 8:24 that point, we can stop it at that point and have her 8:25 lawyer present. Page 11 11:1 MR. BELL: Now, what I can tell you that I 11:2 have learned -- and I work to determine whether or not 11:3 this is going to become a factor-- that there were some: 11:4 prior issues with regard to your complainant and this 11:5 individual that if-- you know, depending on how she 11:6 testifies, we -- we might very well get into that they 11:7 were assaultive in nature and some prior violence 11:8 between the two. 11:9 So that -- and quite honestly, that’s why I 11:10 said it’s difficult for me to determine what the 11:11 Court -- what I might got -- get into prior to hearing 11:12 her testify. She's never said anything. 11:13 THE COURT: I understand that, Mr. Bell -- 11:14 MR. BELL: But I do understand the Court's 11:15 reservation with that, and honestly, probably, she 11:16 should have somebody present, but... 11:17 THE COURT: I understand that. 1. "Effective assistance of counsel" requires defense counsel to assist his client in deciding whether to stand trial or enter a plea of guilty or nolo contendere. i. Rogers v. Maggio, 714 F.2d 35, 37 (5th Cir. 1983) ; Scott v. Wainwright, 698 F.2d 427, 429 (11th Cir. 1983) ; Arnold v. State, 685 P.2d 1261, 1265, 1267 (Alaska Ct. App. 1984) ; People v. Hunt, 219 Cal. Rptr. 731, 737 (Ct. App. 1985) ; State v. Osborne, 684 P.2d 683, 691 (Wash. 1984) . 2. To be able to advise his client adequately of the available options, defense counsel must be familiar with the facts of the case and the applicable law. i. Rogers v. Maggio, 714 F.2d 35, 37 (5th Cir. 1983) ; Scott v. Wainwright, 698 F.2d 427, 429 (11th Cir. 1983) ; Arnold v. State, 685 P.2d 1261, 1265, 1267 (Alaska Ct. App. 1984) ; People v. Brown, 223 Cal. Rptr. 66, 70-71 (Ct. App. 1986) . Thus, for example, in Scott v. Wainwright, 698 F.2d 427 (11th Cir. 1983) , where defense counsel conducted only limited legal research, procured no witnesses, took no depositions, and interviewed neither the prosecution's witnesses nor the witnesses the defendant wanted to call, the court concluded that the defendant received ineffective assistance and that consequently his guilty plea was not knowing and voluntary. ii. See also Arnold v. State, 685 P.2d 1261 (Alaska Ct. App. 1984) (holding that defense counsel's assistance was ineffective where he did not understand the applicable law, did not review police and medical reports, did not examine any of the testimony before the grand jury, and did not interview any witnesses). 3. The amount of investigation required of the attorney to familiarize himself with the relevant facts and law depends upon the nature of the particular case. i. Strickland v. Washington, 466 U.S. 668, 690-91, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) . 4. Including the strength of the prosecution's case. i. Rhoades v. Henry, 611 F.3d 1133, 1142 (9th Cir. 2010) 5. As a general rule, defense counsel should attempt "to secure information in the possession of the prosecution and law enforcement authorities," i. Standards Relating to the Defense Function § 4-4.1 (3d ed. 1993), available at http://www.americanbar.org/publications/criminal_justice _section_archive/crimjust_standards_dfunc_toc.html (last visited Dec. 24, 2012). interview witnesses, Foster v. Wolfenbarger, 2012 FED App. 0224P, 687 F.3d 702, 708 (6th Cir.) ; Beans v. Black, 757 F.2d 933, 936 (8th Cir.) , cert. denied, 474 U.S. 979 (1985) . ii. For example, in Thomas v. Lockhart, 738 F.2d 304, 308 (8th Cir. 1984) , the court held that the defendant received ineffective assistance of counsel where his attorney merely reviewed the file of the prosecutor and did not follow up on the names of three alibi witnesses given to him by the defendant or interview either the victim of the crime or any of the police officers who obtained a statement from the defendant or who were involved in his pretrial identification. The court distinguished the situation in which the defendant did not supply his attorney with information casting doubt on the events as portrayed in the prosecutor's file. iii. See also Anderson v. Johnson, 338 F.3d 382, 392 (5th Cir. 2003) (concluding that the defense attorney's failure to interview eyewitness rose to the level of constitutionally deficient performance); Hawkman v. Parratt, 661 F.2d 1161 (8th Cir. 1981) (the defendant received ineffective assistance of counsel where his attorney did not interview the three eyewitnesses to the crime). 6. and investigate potential defenses, both factual and legal.. i. McCoy v. Wainwright, 804 F.2d 1196, 1198 (11th Cir. 1986) (remanding the cause for an evidentiary hearing to determine whether defense counsel's failure to investigate a possible insanity defense constituted ineffective assistance of counsel); ii. Thomas v. Lockhart, 738 F.2d 304, 308-09 (8th Cir. 1984) (faulting defense counsel for not investigating the seriousness of the defendant's mental problems); 7. However, counsel need not investigate every conceivable defense. i. Scott v. Wainwright, 698 F.2d 427, 429 (11th Cir. 1983) 8. Nor must he always independently interview witnesses. For instance, defense counsel is not required to interview witnesses where, after discussing the case with the defendant and reviewing the police reports and the statements of witnesses, he reasonably concludes that further investigation would not lead to unknown facts. 9. The duty to investigate applies in all cases, even when the defendant insists throughout that he wants to plead guilty -. i. Smith v. Mahoney, 611 F.3d 978, 986 (9th Cir. 2010) ; Beans v. Black, 757 F.2d 933 (8th Cir.) , cert. denied, 474 U.S. 979 (1985) ; Thomas v. Lockhart, 738 F.2d 304 (8th Cir. 1984) ; Arnold v. State, 685 P.2d 1261 (Alaska Ct. App. 1984) ; People v. Hunt, 219 Cal. Rptr. 731, 737 (Ct. App. 1985) . ii. See also Standards Relating to the Defense Function § 4- 4.1 (3d ed. 1993), available at http://www.americanbar.org/publications/criminal_justice _section_archive/crimjust_standards_dfunc_toc.html (last visited Dec. 24, 2012). II. Defense counselor Steven Bell admitted in court record he did not investigate or examine the Brady statement concerning the arrest of the eye witness for Assault- Deadly weapon and the Attorney General investigation concerning the attempt to obtain funds from Victims Assistance that were paid by relators medical insurance Court interfered with admission of ineffective defense counsel. A. Bell did not review Brady Report Pace Pg. ID 639 Ln. 136.10 Mr. BELL: The report was not a part of it. B. Court attempted to cover ineffective counsel admission and took discussion off the record. Pace Pg. ID 639 Ln. 136.10 THE COURT: Are we off the record? wife” gave him something else that would make him crazy. I find it hard to believe that a doctor who has never met me or seen my medical records would write such a letter, but that is what he is using for his defense. Also, on the original form in February from Dr. Grant’s office, he wrote that he was only allergic to iodine and Demerol. On the 4/28 form he added vicodin (hydrocodone, Norco) to the list. He has used this medication for pain multiple times and I have a prescription bottle that he was given for pain when he burned his hand a few years ago. This is the bottle I gave him his medicine from before the assault because it was too late and the pharmacy was closed when I got home to pick up the one from the Ennis doctor. He has also taken my hydrocodone on MULTIPLE occasions when his shoulder hurt before his surgery. He also has several copies of my medical claims for my car wreck and I do not know how he has gotten them without being in my house. He is trying to claim medical fraud from my car accident last year. I had all these records in my home by my bed. He IS entering my house! Why won’t anyone with any authority believe me? Also, when Ted first started going to Dr. Grant in February of 2010 he signed a HIPPA form that I could access his records. So I did. The doctor diagnosed him at that time as Bipolar II, ADD, with paranoid and narcissistic tendencies, in addition to rage and control issues. According to the medical records he is NOT taking any medication to control his Bipolar Disorder. He is only taking Adderall and Valium. I can tell you that Adderall exacerbates his delusional behavior. If you would like me to FAX you those documents I can. As a Licensed Professional Counselor I can tell you that this combination is dangerous and prone to stalking and unpredictable behavior. This is exactly the kind of behavior that he exhibited when he kicked my oldest daughter out of the house is 2009. He stalked her, remotely accessed her computer and called her work multiple times to get her fired. I also recently discovered that he had a key logger on our home computer and had cameras pointed at the girls bedrooms and bathroom. Alexandra has also confided in me that he tried to touche her inappropriately on a volley ball tournament in Houston in 2006. I have always thought he was sexually inappropriate with her but never really put the pieces together until all three girls told me comments that he has said to them. My family therapist has said that Ted is a sexual predator who is after Alexandra and Katy. The girls had not told me many things because they knew I was sick and need the income and insurance. I do not feel safe, protected or that anyone is listening to how crazy this man is. He has contacted Katy (my youngest daughter) three times on FaceBook, “pinged” my cell phone to locate me and changed the passwords on my ATT account so I cannot access the internet at home. I cannot close the account nor do anything with it because he is listed as the only authorized user. He repackages the bill, which is sent to his Kaufman address and then resends it to me the day before the utility is disconnected. Do I have to die or suffer more physical injuries in order to get this man to leave us alone? I understand he is going to court on the 23rd of this month. I would like to be there. Katy has written a notarized statement of the events of 4/10 /10 and both of us are willing to testify. Please help us. If something happens to me or my girls, my family and attorney will hold your office accountable. I do not care if he is fired; this is not about money, I want to feel safe in our home. I should not have to enter the witness protection plan to live our lives. This is exactly what the Battered Women’s Foundation has recommended. We are NOT safe. Thank you, Cathey B. Request for record to authenticate letter OPEN RECORD REQUEST FOR JUNE 10 2010 ADA RODGERS LETTER From: "Thelevee@yahoo.com" Date: August 26, 2013, 3:53:47 AM EDT To: "8178843333@metrofax.com" <8178843333@metrofax.com> Subject: Fwd: thelevee@yahoo.com has sent you a file Theodore Levee 925 Altara Ave Coral Gables Florida 33146 972-835-6777 Fax 305-665-5597 Email thelevee@yahoo.com August 23, 2013 Tarrant County District Attorney Public Information Officer Tim Curry Criminal Justice Center 401 West Belknap Fort Worth, TX 76196 Fax 817-884-3333 Dear Officer for Public Records: This request is made under the Texas Public Information Act, Chapter 552, Texas Government Code, which guarantees the public's access to information in the custody of governmental agencies. I respectfully request copies of the following information: Email records concerning; State v.Theodore Floyd Levee Correspondence between assistant district attorney Tim Rodgers and Cathey Levee. While request is for all correspondence, specifically included is the email sent to Mr. Rodgers by Cathey Levee on the account of Mr. Levee's - thelevees5@msn.com and also the email address - cathey.levee@fwisd.org. The email of June 10, 2010 is specific to the actions and knowledge of the district attorney’s office in the prosecution of above case. In the interest of expediency, and to minimize the research and/or duplication burden on your staff, I would be pleased to personally examine the relevant records if you would grant me immediate access to the requested material. Additionally, and since time is a factor, please communicate with me by telephone or fax rather than by mail. My telephone number is: 972-835-6777 Fax 305-665-5138 Disclosure of this information is in the public interest because providing a copy of the information primarily benefits the general public. I therefore request a waiver of all fees and charges pursuant to Section 552.267 of the act. I shall look forward to hearing from you promptly, as specified in the law. Thank you for your cooperation. Sincerely, Theodore Floyd Levee Electronically signed 5690 From; Theodore Levee 925 Altara Ave Coral Gables FL 33146 To; Ashely Forth ADA Tarrant County District Attorneys’ Office 401 W Belknap Ft Worth TX 76196 In the matter 2013-19273 According to the letter from the AG of Texas Office, AAG Jennifer Burnett, we are past deadline for the release of the requested documents referred to in this correspondence #OR 2013 -19273 That would include June 10, 2010 and all other correspondence between the DA office and Cathey Levee, sent from thelevees5@msn.com, and Cathey.Levee fwisd.org. And any other and all correspondence in the completed criminal case. The deadline according to the AG was 10 days after the issuance of the letter dated November 5 2013. This action is jeopardizing factual claims in another action and as such considerably jeopardized the conviction and integrity of the District Attorney’s office of Tarrant County. Please comply at once as a like correspondence has been forwarded with the AG. Theodore Levee 925 Altara Ave Coral Gables FL Jennifer Burnett PO Box 12548 Austin TX 78711-2548 Assistant Attorney General Open Records Division OR 2013-19273 Email between DA and Cathy Levee Per your correspondence and the opinion of the Attorney General I have not received the requested documents and ask the assistance of the State of Texas in enforcing and holding all accountable equally under the law. I have contacted the ADA Ashely Fourt date same and it is imperative to have these records in an action before the United States District Court North Texas Fort Worth Civil Action No. 4;13-cv-211-y, The matter is time sensitive. Sincerely Theodore Levee V. Counsel failed to impeach witness based on conflicted statements in testimony concerning a shot gun A. Witness testimony conflicted B. Hurst Police Officer Juminez stated under oath that he ask if a weapon where involved and Cathey Levee said “No”. But in testimony he was cocking a shot gun and running upo and down stairs and she saw it in his hand. But Catherine – who is in testimony as to never leaving her side never saw a gun. VI. Defense counselor Steven Bell admitted in court record he failed to impeach witness complainant based on conflicted statements in medical records affidavit in closing argument VII. Counsel failed to impeach witness Alexandra Levee based on conflicted statements concerning whip kick and held proof in affidavit of April Divorce sworn and in conflict VIII. Defense counselor Steven Bell refused to investigate claim of injury in medical records A. Several rendition to not equate to trial testimony B. Medical fact refutes testimony and claim of ACL rupture in that According to all radiology reports no collateral ligament damage occurred. IX. Defense counselor Steven Bell failed to properly advise relator of appeal right in front of two witnesses. (see Affidavits Skye Levee and Risa Ruso) X. Defense counselor Steven Bell abandoned relator Admission by defense counsel of failure to investigate witness. Eyewitness Catherine Levee Appendix Defense failed to examine Brady Statement in eye witness account Appendix June 10 2010 Letter Cathey Levee Tim Rodgers cc’d to relators email account. Other Authorities See United States v. Wilkes, 20 F.3d 651, 653 (5th Cir.1994) ...................................................... 1