Abelardo Gerardo Gonzalez v. State

IN THE FOURTH COURT OF APPEALS SAN ANOXDNIG, TEXAS ABELPi^DO G- GONZALEZ 1622682 § Appellant/ Pro-se § § § COA No. 04-15-00529-CR vs. § COA No. 04-I4-00530-CR § § OOA No. 04-15-0053i-CR THE STATE OF TEXAS § Appellee § CXX«T ORDERED REPLY NOW GOME'S Appellant ABELARDO G- GCWZALEZ, pro-se in the above mentioned proceediiMS and reply's to a Court Order dated Septemeber 18/ 2015 reuardinu lUrisdiction/ amonu other thinqs. I. TmniG OF TOE FILING THE REPLY Appellant was Ordered to reply by Oct. 12, 2015 and is filing this reply on Oct. 3, 2015, which is timely filed by placing it in the C.T. Terrell prison nailbox and thusfore timely filed under the prison mailbox rule. II. COURTS ATTENTION (a) The Court Order dated September 18, 2015 state's this case(s) are from the 111th District Court- IT IS NOT, its from the 49th District court. (b) The Clerk had appellant incorrect mailing address, and does not know if he has received all the clerks and Court mailings. (c) Appellant to this date has not veiwed the Trail Courts CLERK RECORD and thusfore does not know what wrong with it, and can [N]OT correct it since he has HOT veiwed the CLERK RECORD. , \/\Z III. INSTANT EVOCEBDINSS [l]n this instant proceedings appellant state's the Appeal being sought is golelv to appeal the Denial of his [POST-TRIM.] SECOND MOTION TO RECUSE Uhder T.R-Civ.Pro. RULE 18a filed on March 3, 2015 and dENIED on July 11. 2015. [T]his is [n]OT a interlocutory appeal, since final judgment was rende red by the Trail Court on Jan. 15, 2015 against appellant SEE Exhibit's ( ) J/C SHEET'S. IV- APPELLANT ACTICNS Appellant has showed due diliqence by taking the following action's as a pro-se appellant to appeal the DENIAL of the SECOND MOTION TO REOOSE by doing the following: (1) Timely filing a NOTICE OF APPEAL on the denial of his post-trial Motion to Recuse on August 10, 2015, (2) Filinu a MOTION FOR CERTIFICATION CW THE RIGHT TO APPEAL under T.R.A.P. 25.2 (a)(2), with the Trail Court on Sept. 7, 2015: Exhibit (V ) (3) Reciuest for the Preparation of the Clerk Record for Appeal under T.R.A.P. RULE 34.2 AGREE RECORD RULE filed on SEPT 9, 2015 with the trial court Clerk: SEE Exhibit ( 5, ) (4) On SEPT. 15, 2015 Appellant submitted a letter to the clerk of the fourth Court of Appeals for Information. f£x 6 (5) On SEPT. 15, 2015 Appellant submitted a letter entitled FCXNIAL REDDEST TO CI£CR OOT THE CLERK RECORD FROM THE DISTRICT CLERK OFFICE under T.R.A.P. FULE 34.5(g): SEE Exhibit ( 7 ) since his appearing pro-se. (6) On SEPT. 18, 2015 Appellant submitted to the Clerk of the fourth Court of appeals a request to be provided the cost to obtain copies of the Trail Court Clerks Record, (NO REPLY TO DATE HAS BEEN RECEIVED). Ex 8 The request was labled URGENT RBODEST TIME SENISTIVE **N0 REPLY TO DATE** (7) On SEPT 29, 2015 Appellant received a reply to #5 from the trail Court Clerk stating the Clerks Records where to long and only provided index sheets SEE Exhibit( S ) THIS IS NOT WHAT APPELLANT REOUESTED IN #3 AQtEE RECORD RULE, since he was onlv appealing the denial of the Second Motion to Recuse. Z/lZ (8) On OCT. 3, 2015 Appellant received a letter from the Fourth Court of Appeal Clerk dated SEPT 21/ 2015 with a postmark on the env. of SEP 29 2015. (stating the clerk "we do have your correct address on file". I would like to show the court, I beg the clerk different by the following Exhibits showing a incorrect address SEE Exhibit ( ti , IZ ) by this I'm in grave doubt that if I have received all the filings, notices. Order's from the Clerk or the court, and this has PREJODICE appellate. V. JURISDIOFION NATIER WITHOUT knowing what's in the Clerk Record Appellant can not know whats lacking or missing and can not ask the trial court to file a supplemental clerk's record to show this court's lurisdiction. But appellant state's the follcwinq to this court: (A) The appeal being sought is from the SECOND MOTION TO RECUSE. A motion to Recuse is appelable under T.R.Civ-Pro. RULE 18(|}(1)(a) from [final judgment], (B) Appellant's SECOND MOTION TO RECUSE is a [POST-^miAL] MOTION [POST-VEBDICT] (C) FINAL JUDGMENT was entered on Jan. 15, 2015. (D) threfore [N]ot a interlocutory appeal. VI. aXJRTS ASSISI!ANCE Appellant respectfully asks this court assistance which is available under T.R.A.P. to intervene as authorise under Tex. Rules of App. Pro. to protect the integrity of the Appeal Procces since Appellant is appearing Pro-se and is in prison and has showed due diligence mention in IV. APPELLANT ACTION noted before hand. 3/lZ VII. AMENDING REFLY Appellant reserve's the right to amend this reylv to submitt copies of Exhibits that where not included since at the time of submission the 0091es have not been return and time is of the essence to submit this replv to meet the deadline imposed bv the court/ and other exhibits become avilable/ and just ice reau ire's. VIII. EXHIBITS 1. Judyment of Conviction bv Jur/ Sheet 662/COA#530 2. Judyment of Conviction by Jury Sheet 665/HoA#531 *3. Judgment of Conviction by Jurv Sheet 657/C0A#529 4. Motion for Certification of Right to Appeal *5. Request for Preparation of the Clerk Record 6. Letter to 9th coa Clerk reuuest*. for info- 7. Formal Reguest to check out the Clerk Record 8. Letter to 4th coa to request a pricefor the CR 9. Reply from Trail Clerk,on the request to be loan out the CR 10. Second Motion for Certifiation of Rioht to Appeal *11. Letter from coa Clerk showincj wrong address for case 531 *12. Letter from coa Clerk showing wrong address for case 529 * This Exhibits will be submitted in a amended RE^LY IX. PRAYER Appellant respectfully ask the Honorable court not to dismiss but to assist the appeal for the mention reason's stated above, since appellant has not veiwed the Trail Court Clerks Record. Appellant has sutxnitted a seodnd CERTIFTCATTON OF RIGHT TO APPEAL to the Trail Court cop/ included herein as Exhibit. HO ). Respectfully submitted. Abelardo G. Gonzalez 1622682 C.T. Texxell B-3-40 1300 F.M. 655 Rosharon, Texas 77'=ift3 Appellant) t t^o-se V/iZ Case No. 2008CRR000662D1 Count I &IU. iNCIDE.NT NO./TRN: 91273038553 The State of Texas In The 49TH District V. Court § ABELARDO GERARDO GONZALEZ § WEBB County, Texas § State ID No.; TX05095629 § Judgment of Conviction by Jury Judge Presiding: HON. JOSE A. LOPEZ Date Judgment Entered: 1/15/2010 Attorney for Stale: SERGIO LOZANO AND Attorney fur EDWARD NOLEN Defendant: OSCAR A, SR. vV Offense for tvhich Defendant Convieted: AGGRAVATED ROBBERY F/l-COUNT I AND ENGAGING IN ORGANIZED CRIMINAL ACTIVITY F/l-COUNT II Qtarging Instrument: Stature for Onenso INDICTMENT ^3 AND 7l702(Ji) Penal Code Date of Offense: 12/5/2008 Degree of Offense: Plea to Offense: 1ST DEGREE FELONY NOT GUILTY Verdict of Jury Findings on Deadly Weapon: GUILTY N/A Plea to l" Enhancement Plea to 2'"' Enhancement/Habitual Paragraph: N/A Paragraph: N/A Findings on 1" Enhancement Findings on 2'"' Paragraph: N/A Enhancement/Habttual Paragraph: N/A Punished A.s.sessed bv: Date Sentence Imposed: Date Sentence to Commence: JURY 1/15/2010 1/15/2010 Punishment and Place of Confinement: 30 YEARS INSTITUTIONAL DIVISION, TDCJ - PER COUNT THIS SENTENCE SHALL RUN CONCURRENTLY. • SENTE.NCE OFCONFINEMENT SUSPENDED. DEFENDANT PLACED ON COM.MUNITY SUPERVISION FOR N/A LjK; Court Costs: Restitution: Restitution Payable to: S10,000.00 PER COUNT $350.00 $N/A D VICTIM (see below) CD AGENCY/AGK.NT (.see below) Sex Oflender Registration Requirements do notapply to the Defendant. Tkx. CODE Grim. Proc. chapter 62. The age of the victim at the time of the offense was N/A . If Defendant is to serve sentence in TDCiI. ontcr 1ncnreeration neriods in chiiiinoloeiciilorder From 2/li.h. erUWC days• redited Ik lim 32 DAYS NOTES: TOWARD INCARCERATION All pertinent inrnrmation. namesand assessments indicatedabove are incorporated into the language of the iudgmeiit below by reference This cause was called for trial in County, Texas. The State appeared by her District Altornoy Counsel / Waiver of Counsel Iselect onel IS Defendant appeared in person with Counsel. D Defendant knowingly, intelligently, and voluntarily waived the right to representation by counsel in writing in ojicn toiiri It appeared to theCourt ihat Defendant was mentally competent aiid had pleaded a.s shown above to thecharginK instrument. Both parties announced ready for trial. A jury was selected, impaneled, and sworn. The INDICTMENT was read to the jury, and Defendant entered a plea to the chargedoffense. The Court received the plea and entered it of record £xl 5/iZ .niDGMENT ABEI.AKIX) fiONV \LE2-CONVIC BV n'KV.2 l'.lKr I tif? Case No. 2008CRR000665D1 Count ril & IX Incident No./trn: 91273038553 The State OF Texas I.NTnE49TII DrsTRicr V. Court ABELARDO GERARDO GONZALEZ WTEBB County. Tk.xas .^TATi; II) .\0 : TX05095G29 Judgment of Conviction by Jury •JuiIiCf I'iv.skIiii.: lloN. JOSF. A. LOPEZ l/!r)/20IO KnU'rriJ[_ SEii^oTozrwrANU Aiti)n»-> for Aimi iii'V ft>r St;iU'; OSCAR PEN A. SR. KDWAKU NOLEN Offi'iisji for wlucli Diffoiiiliim Coiiv}riei| .AOGRAVATED ROBBERY l*7i-C0UNT III AND ENGAGING IN ORGANIZED CRIMINAL ACTIVITY I71-C0UNT IX _ Ch.Ti-iMiig lii.sdunu'lil: .SiiUiui' foj' Ofl'fiiHi'- INDICTMENT 29.03 AND 7l.0'2(ti) Per [');uo nf OIToiiso: i/23/2008 Di-Kii'i' of I'loii to OIToiiso: 1ST DEGREE FELONY NOT GUILTY jj: YfiuUcuiOiury: Fiiiihiigs on Di'ijislly.Wortpy|v GUILTY N/A to I*' KnIirtnreiJii'iil I'lo.i lo 2""' Kiili;in(Viiii'iil/n;il)il ii;il I'rtiMCriipl). N/A l'i>r:n;r:i|'Ii _ __ _N/A Kiiidiiics oil 1" Knhaiiceinoni Fincliiics on 2'"' l';ii':iKr:ipli' N/A Rnliaiu:oiiii-iit'M:il)ilu:tl I'iirrtU'.'I'li _ _ l^iiishrcl As'| N/A . Tiiio. Court CosU: I^c.sliluiniir Ui'...liUitiiiii PavaMo lir ri(),000.00-PER COUNT $390.00 $N/A • vicTiM (soo Wiow) • agk.ntv/aOK.nt is.-.- (•.•low) Sox OlTt'lidor RcKistrutinii Uuquiromcnts do not iippl.v to ll>o Duruiidaiit. .'I'K.x (^OliK CidM, I'ltdC chapli-r112 * Tlic attf! iif ihr viriiiii .it tlu; tiino ofl-lir offense w.t-i N/A •' If l)vf(;r|ilanl. is to .-im vi- *iNiJrjKC."iLTI).GLi'.'Vi;UJ"' ;''' ri-.ltU'J>.rrii!'.iLN iii.cllioriolpitic.'lyid'-i Fio.ii 2/1•1/21108 I.I :i/1 1/2008 l-r..m 1/11/2010 t.. 1/12/2010 Kiom I/l.V20t0 i. I/1.V20I0 Time Kiom ' fo I*10 in lo Ituhi Id Ociltted' |f "> ConniVJrtilor.i:. CrtVM.iir'-d.ij ".•«.;oiLCiiu; ai»< •. "I'.i "t.ij •• i 32 DAYS NOTK.S:'I'OWARD INCARCERATION ~ Alt |ii.r(iiii-n( iiirormnliiMi, ii«iiii-» .tnU ni..rs<>iiii-iU» iiiilii-nlrH aloof amiiii-iir|inrntf.-iil lifiow h» rffi-i rm-f Thi.x taii'irt wax c.illed far ti'i.'tl in tNuinly. Ti!.xa> I li." .Slair apiirari'd liy hot Dixinrl Alloriirv CimnscI / Will viT of (.'oo.nM'L,tsi!ljfCl UQ.f,) Q Di'fciid.inl appcaivd iii person witli (fnuii.sol Q Drfrndam knowingly, inli'llicfiilly. and vnhinlanly waived the nitlil lo repre.senlalmn liv rmin.-ol in wi ilmu miiprii roiiil It .rtppearoil In tlu: Conri that DefeiidaiU w.i.s incniallv competent and had pleadcil aa shown ahove to the ch.iiRini; instrument Hoth partie.s .tnnotineed ready for in.il Ajuiy wa.s selected. im|ianeli;il. and sworn The ISDICTMKNT «.is read to ili- jurv. and Defcnd.iiit entered a plea to the charged offi'ii.se. The Court received the plea and entered it ufierord JfOflklKVT \IIEL.X«n