Childress, Jason ( 2015 )

EMERGENCY RELIEF REQUESTED
No.
IN THE COURT OF
CRIMINAL APPEALS, TEXAS
In Re Jason Childress,
Relator
PETITON FOR WRIT OF MANDAMUS
On Petition For A Writ Of Mandamus
To The Texas Court of Criminal Appeals From Cause No. 2014CR1548
From The Comal County Court At Law #2 of Comal County, Texas
(Charles A. Stephens II)
IDENTITY OF PARTIES
Relator, Jason Childress, certifies that the following is a complete list of the names and
addresses of all parties.
Relator: Jason Childress
Sui Juris in Trial Court,
9141 Gristmill Ct.
Fort Worth, Texas
Respondent: Charles A. Stephens II
County Court At Law #2 of
Comal County, Texas
150 N. Seguin, Ste. 301
New Braunfels, TX 78130
Interested Party: Abigail Whitaker
Comal County District Attorney's Office
Comal County Courthouse Annex
150 N. Seguin Ave. Ste. 307
New Braunfels, Texas 78130
ii
TABLE OF CONTENTS
Page
IDENTITY OF PARTIES.............................................................................................................. ii
TABLE OF CONTENTS.............................................................................................................. iii
INDEX OF AUTHORITIES......................................................................................................... iv
STATEMENT OF THE CASE................................................................................................... viii
STATEMENT OF JURISDICTION........................................................................................... viii
ISSUES PRESENTED................................................................................................................. ix
STATEMENT OF FACTS............................................................................................................. 1
ARGUMENT................................................................................................................................. 4
A. MANDAMUS RELIEF IS PROPER................................................................................ 4
B. TRIAL COURT HAS ABUSED ITS DISCRETION........................................................ 5
C. DENIAL OF DUE PROCESS BY TRIAL COURT.......................................................... 6
D. COMPELLING THE TRIAL COURT TO ENTER A SPECIFIC RULING.................... 7
REQUEST FOR RELIEF............................................................................................................. 12
VERIFICATION.......................................................................................................................... 13
CERTIFICATE OF SERVICE..................................................................................................... 14
APPENDICES ............................................................................................................................. 15
(Appendix is separate, incorporated herein in its entirety for all purposes, and is being used as an
Appendix for this Petition for Writ of Mandamus and Petition for Writ of Hebeas Corpus)
iii
INDEX OF AUTHORITIES
Biblical
Luke 6:48-49.................................................................................................................................. 8
Legal Maxims & Doctrines
Doctrine of Acquiescence.............................................................................................................. 3
Doctrine of Stare Decisis........................................................................................................... 3, 5
Silence shows consent............................................................................................................ 3, 5, 7
Qui non negat fatetur.............................................................................................................. 3, 5, 7
Debile fundamentum, fallit opus.................................................................................................... 8
Sublato fundamento cadit opus...................................................................................................... 8
Federal Statutes At Large
Public Law 97-280,
96 STAT. 1211, 97th Congress......................................................................................... 11
Federal Cases
Conley v. Gibson,
355 U.S. 41 at 48 (1957)............................................................................................ 10, 11
Davis v. Wechler,
263 U.S. 22, 24.................................................................................................................. 10
Donnelly v. Dechristoforo,
416 U.S. 637 (1974)........................................................................................................... 3
Gonzales v. Buist,
224 U.S. 126 (2012)........................................................................................................... 3
Haines v Kerner,
404 U.S. 519 (1972).......................................................................................................... 11
Holt v. United States,
218 U.S. 246 (2010)........................................................................................................... 3
iv
Jacobsen v. Filler,
790 F.2d 1362 (9th Cir.1986)........................................................................................... 10
Jenkins v. McKeithen,
395 U.S. 411, 421 (1959)................................................................................................. 10
Maty v. Grasselli Chemical Co.,
303 U.S. 197 (1938)......................................................................................................... 11
NAACP v. Alabama,
375 U.S. 449..................................................................................................................... 10
Picking v. Pennsylvania Railway,
151 F.2d 240, Third Circuit Court of Appeals........................................................... 10, 11
Plaskey v. CIA,
953 F.2nd 25..................................................................................................................... 11
Puckett v. Cox,
456 F.2d 233 (1972) (6th Cir. USCA)............................................................................. 11
Stromberb v. California,
283 U.S. 359..................................................................................................................... 10
Telephone Cases,
126 U.S. 1 (1988)............................................................................................................... 3
United States v. Lovasco,
431 U.S. 783 (1977)........................................................................................................... 3
Federal Rules
Federal Rules of Civil Procedure,
Rule 12(a) (1) (B)............................................................................................................... 6
State Cases
#WR-20,423-05.......................................................................................................................... viii
37 Tex.Jur.2d,
Mandamus, Sec. 48............................................................................................................ 7
Barnes v. State,
v
832 S.W.2d 157 (Tex 1979)................................................................................... 4, 5, 6, 9
Carnes v. Cunningham,
350 S.W.2d 59 (Tex. Civ. App. 1961)................................................................................ 7
Deleon v. District Clerk,
187 S.W. 3d. 473 (Tex: Crim. App. 2006).......................................................................... 4
DeLeon v Periman,
530 S.W.2d 174 (1975).......................................................................................... 2, 3, 5, 7
Deyo v. Detroit Creamery Co.,
241 N.W. 2d. 244 (1932).................................................................................................... 3
Frunzar v. Allied Property and Casualty Ins. Co.,
548 N.W. 2 d 880 (1996).................................................................................................... 3
Hidalgo County Water Improvement District No.2 v. Blalock,
301 S.W.2d 593 (1957).................................................................................................. 3, 5
In re Shredder Co., L.L.C.,
225 S.W.3d 676 (Tex.App. El Paso 2006, orig. proceeding)............................................. 5
Padieu v. COURT OF APPEALS OF TX.,
392 S.W.3d 115 (Tex: Crim. App. 2013)............................................................................ 4
Port. v. Porter,
274 N.W. 2D 235 (1979).................................................................................................... 3
Safety-Kleen Corp. v. Garcia,
945 S.W.2d. 268 (Tex: Court of Appeals 1997)................................................................. 4
Simon v. Levario,
302 S.W.3d. 318 (Tex: Crim. App. 2009)...................................................................... 5, 9
State Ex rel. Curry v. Gray,
726 S.W.2d. 125 (Tex: Crim. App. 1987).......................................................................... 5
State ex rel. Rosenthal v . Poe,
98 S.W.3d. 194 (Tex: Crim. App. 2003)............................................................................ 9
State ex rel. Vance v. Routt,
571 S.W.2d 903 (Tex. Crim. App. 1978)............................................................................ 7
vi
Thomason v. Seale,
53 S.W.2d 764, 122 Tex. 160 (1932).................................................................................. 7
Trinsey v. Pagliaro,
229 F. Supp. 647 (1964)..................................................................................................... 3
White v. Reiter,
640 S.W.2d. 586 (Tex.Crim. App. 1982)............................................................................ 5
Winters v. Presiding Judge,
118 S.W.3d 773 (Tex: Crim. App. 2003)............................................................................ 4
State Rules
Tex. Code Crim. Proc.,
Art. 4.04.…..................................................................................................................... viii
Tex. Code Crim. Proc.,
Art. 11.05.......................................................................................................................... ix
Tex. Code Crim. Proc.,
Art. 14.06........................................................................................................................... 8
Law Reviews & Encyclopedias
Bacharach & Entzeroth, Judicial Advocacy in Pro Se Litigation: A Return to Neutrality,
42 Ind. L. Rev. 19 (2009)................................................................................................. 10
Corpus Juris Secundum,
2d Vol. 7 section 25.......................................................................................................... 11
Correll, Finding the Limits of Equitable Liberality: Reconsidering the Liberal Construction of
Pro Se Appellate Briefs,
35 Vt. L. Rev. 863 (2011)................................................................................................. 10
Healey, In Search of the Delicate Balance: Legal and Ethical Questions in Assisting the Pro Se
Patron,
90 Law Libr. J. 129 (1998)............................................................................................... 10
Swank, In Defense of Rules and Roles: The Need to Curb Extreme Forms of Pro Se Assistance
and Accommodation in Litigation,
54 Am. U.L. Rev. 1537 (2005)......................................................................................... 10
vii
STATEMENT OF THE CASE
Underlying Proceeding:
A criminal action brought against Relator by IDA PANIAGUA for the alleged offense
“INTENTIONALLY REFUSE TO GIVE HIS NAME, DATE OF BIRTH AND ADDRESS TO
JAMES BELL.”
Respondent:
Charles A. Stephens II, of the Comal County Court At Law 2, of COMAL COUNTY,
TEXAS.
Respondent Inaction/Omission to Act For Which Relator Seeks Relief:
Respondent's refusal to rule upon Relator's Affidavit of Countercomplaint with Motion to
Dismiss therein, and Respondent's refusal to Rule upon either Affidavit of Countercomplaint
with Motion to Dismiss therein or Relators's Demand for Dismissal.
Prior Petitions:
This is an Original Proceeding.
STATEMENT OF JURISDICTION
This court, pursuant to the Tex. Code Crim. Proc., Art. 4.04, has jurisdiction to
consider and grant this Petition and issue a Writ of Mandamus as the underlying cause is a
criminal matter.
This court previously opined in #WR-20,423-05 holding “that when a court of appeals
and this court have concurrent, original jurisdiction of a petition for a writ of mandamus against
the judge of a district or county court, the petition should be presented first to the court of
appeals unless there is a compelling reason not to do so.”
Under the circumstances, there is a compelling reason Relator submits this Petition for
Writ of Mandamus against a judge of a county court to this court. That compelling reason is that
Relator has also petitioned this court for a Writ of Habeas Corpus (Apx. Tab A), attached hereto
and incorporated herein it its entirety for all purposes, in relation to the underlying cause and
viii
Reltor is requesting Emergency Relief due to immediate threat of unlawful arrest under a void
Capias.
The court of appeals, pursuant to the Tex. Code Crim. Proc., Art. 11.05, the is without
power and jurisdiction to consider and grant petitions for Writs of Habeas Corpus. In order to
expedite and consolidate the process of being relieved of the immediate threat of an unlawful
arrest and compelling the the judge of the Comal County Court At Law 2 to perform, Relator
submits both his Petitions for Writs Habeas Corpus and Mandamus to this court.
ISSUES PRESENTED
1. Is mandamus relief proper? (Yes)
2. Has the trial court abused its discretion by refusing to rule? (Yes)
3. Has the trial court denied Relator Due Process by refusing to perform its legal
duty Relator has requested performance of? (Yes)
ix
STATEMENT OF FACTS
On September 4, 2014, Relator was unlawfully arrested, unlawfully searched and had his
property seized unlawfully by officers of/for the NEW BRAUNFELS POLICE DEPARTMENT
(NBPD).
On September 12, 2014, Reltor was coerced into signing and “PR BOND” (Apx. Tab B)
displaying an incorrect address for Relator. Relator was coerced in that the jailer whom presented
the “PR BOND” threatened to leave Relator in jail for another two weeks if he refused to sign.
Relator signed the “PR BOND” in order to expedite his release from his unlawful imprisonment,
as Relator could inform the trial court that the address displayed on the “PR BOND” is incorrect
and provide it with a correct one for purposes of service of notice or any other correspondences.
On September 29, 2014, via letter (Apx. Tab C), Relator informed the trial court that it
had an incorrect address for Relator on file and provided it with both Relator's current location
and address to which notices of any hearings or any other correspondences should be sent to in
order for him to receive them.
On March 3, 2015, Relator began checking the online records for the trial court record
because he had received no correspondences or notices of hearings. On that same day, Relator
discovered via online records that the trial court had failed or neglected to correct the incorrect
address it had on file (Apx. Tab D), that a “COMPLAINT (OCA)” (“Complaints”) (Apx. Tab E)
and a “NOTICE RETURNED” (Apx. Tab F) had been filed into the trial court on December 15,
2014 and January 26, 2015, respectively, and than an “Arraignment” (see Apx. Tab D) had taken
place circa February 3, 2015. Relator further discovered than an “AFFIDAVIT/FAILURE TO
APPEAR”, (Apx. Tab G) an “ORDER FOR ARREST-FAILURE TO APPEAR” (Apx. Tab H)
and a “CAPIAS-FAILURE TO APPEAR” (Apx. Tab I) had also been filed into the trial court's
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on February 20, 2015, February 26, 2015, and March 2, 2015, respectively.
After learning of the aforementioned filings and events, Relator drafted the following: an
Affidavit for Countercomplaint (Apx. Tab J); an Affidavit of Countercomplaint
(Countercomplaint) (Apx. Tab K), a Table of Authorities: Police Reports are Hearsay (Apx. Tab
L), and a Table of Authorities: Law of Voids in Texas (Apx. Tab M). In Relator's
Countercomplaint (see Apx. Tab K), he, inter alia, challenged the jurisdiction (see Apx. Tab K
Sections IV. – VIII., pg5 -76) of the trial court and Moved not only for Dismissal (see Apx. Tab
K pg.6, #11.; pg.49, #116.; pg.56, #134.; pg.57, #139.; pg.60, #143(f).; pg.69, #156.; pg.70, #
61.; pg.72 – 73, #167.; & pg.84, #192.), but also to immediately expunge (see Apx. Tab K pg.84,
#192.) the criminal record created as a result of his unlawful arrest.
On March 25, 2015, via certified mail, return receipt, Relator filed his Affidavits and
Tables of Authorities with and into the trial court by and through the Clerk of the Court as
evidenced by signed return receipt (Apx. Tab N). Also on March 25, 2015, via certified mail,
return receipt, Relator served his Affidavits and Tables on all involved and interested parties,
including the prosecutor, ABIGAIL WHITAKER (Whitaker). Said documents were received by
the Individuals served, evidenced by signed return receipts (Apx. Tabs O, P, & Q). On April 14,
2015, Reltor filed into the trial court copies of all signed return receipts, providing proof of
service (see Apx. Tab D).
On May 15, 2015, Relator via his Demand for Dismissal (Apx. Tab R), filed with and
into the trial court by and through the Clerk therefor, demanded that the trial court perform its
duty and Dismiss the allegation, charge and cause against him as his Affidavit with Motion to
Dismiss and Expunge therein, remained unanswered, unrebutted, unrefutted and unchallegened
thus constituting the only true facts before the court, see Apx. Tab A–– DeLeon v Periman, 530
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S.W.2d 174 (Tex.App.-Amarillo (1975)); quoting Hidalgo County Water Improvement District
No.2 v. Blalock, 157 Tex. 206, 301 S.W.2d 593, 596 (1957); see also Apx. Tab K pg.37 – 38,
#85.–– Trinsey v. Pagliaro, D.C. Pa. 1964, 229 F. Supp. 647.; United States v. Lovasco,
(06/09/77) 431 U.S. 783, 97 S. Ct. 2044, 52 L. Ed. 2D 752.; Gonzales v. Buist, (04/01/12) 224
U.S. 126, 56 L. Ed. 693, 32 S. Ct. 463.; Holt v. United States, (10/31/10) 218 U.S. 246, 54 L. Ed.
1021, 31 S. Ct. 2.; Donnelly v. Dechristoforo, 1974. SCT.41709, 56 ;416 U.S. 637 (1974).;
Telephone Cases: Dolbear v. American Bell Telephone Company; Molecular Telephone
Company v. American Bell Telephone Company; American Bell Telephone Company v.
Molecular Telephone Company; Clay Commerical Telephone Company v. American Bell
Telephone Company; People's Telephone Company v. American Bell Telephone Company;
Overland Telephone Company v. American Bell Telephone Company, (Part two of three)
(03/19/88) 126 U.S. 1, 31 L. Ed. 863, 8 S. Ct. 778.; Frunzar v. Allied Property and Casualty Ins.
Co., (Iowa 1996) 548 N.W. 2 d 880.; Porter v. Porter, (N.D. 1979) 274 N.W. 2D 235.; Deyo v.
Detroit Creamery Co., (Mich 1932) 241 N.W. 2d. 244.
To date, Relator's Affidavits and Tables are are unchallenged–– Under the Doctrines of
Acquiescence (see Apx. Tab A., Sec. I.) as well as the Maxim in Law which states that “silence
shows consent” 6 Barb. [N.Y.] 2B, 35. “He who does not deny, admits.” (Qui non negat fatetur. –
Black’s Law Dictionary Revised 4th Edition page 1414) (Trayner, Maxim 503), Relator's
adversaries' silence constitutes their agreement. Further, Stare Decisis, “[U]nchallenged
averments are accepted as true. The averments, [] accepted as true, reflect there is no legal
excuse for [Respondent's] refusal to act[] to entertain [Relator's Motion to Dismiss] and to either
deny it [] or grant it.” DeLeon v. Periman, 530 S.W.2d. 174 (Tex.App. – Amarillo (1975));
Hidalgo County Water Improvement District No.2 v. Blalock, 157 Tex. 206, 301 S.W.2d. 593,
In re Jason Childress Page 3 of 15
596 (1957). To date, the trial court has refused to rule.
ARGUMENT
A. MANDAMUS IS PROPER
Mandamus relief is proper as Relator has no adequate remedy at law and the action he
seeks to compel is ministerial. “[T]he two-prong test for mandamus relief requires that [] relator
show he has no adequate remedy at law and that the action he seeks to compel is ministerial”
Padieu v. COURT OF APPEALS OF TX., 392 S.W.3d 115 – Tex. Court of Criminal Appeals
2013.
Relator meets the first-prong required for mandamus relief, in that he cannot appeal a
ruling that which does not exist. "The inability to appeal leaves relator with no adequate remedy
at law." Winters, 118 S.W.3d at 775. Therefore, Relator has met the second requirement for
mandamus relief. All requirements for mandamus relief have been fulfilled.” Deleon v. District
Clerk, 187 S.W. 3d 473 - Tex: Court of Criminal Appeals 2006. Mandamus is the only mode
available to Relator so as to compel Respondent to rule on Relator's Motion to Dismiss or
Demand for Dismissal, thereby creating an appeal opportunity.
Relator meets the second-prong required for mandamus relief, in that the action Relator
seeks to compel is ministerial, i.e., to rule upon Relator's Motion to Dismiss or Demand for
Dismissal. “When a motion is properly filed and pending before a trial court, the act of giving
consideration to and ruling upon that motion is a ministerial act, and mandamus may issue to
compel the judge to act.” Safety-Kleen Corp. v. Garcia, 945 S.W.2d. 268 – Tex: Court of
Appeals, 4th Dist. 1997; quoting O'Donniley v. Golden, 860 S.E.2d 267, 269-70 (Tex.App. –
Tyler 1993, Orig. Proceeding); Barnes v. State, 832 S.W.2d 157 (Tex 1979); “[A] trial court has a
ministerial duty to rule upon a motion that is properly and timely presented to it for ruling[.]”
In re Jason Childress Page 4 of 15
Simon v. Levario, 302 S.W.3d. 318 – Tex: Court of Criminal Appeals 2009; “[C]onsideration of a
motion properly filed and before the court is ministerial.” State Ex rel. Curry v. Gray, 726
S.W.2d. 125 – Tex: Court of Criminal Appeals 1987, quoting White v. Reiter, 640 S.W.2d. 586
(Tex.Crim. App. 1982). “This rule does not intrude upon the trial court's discretion, because a
trial court has no discretion to refuse to act.” Barnes v. State, 832 S.W.2d 157 (Tex 1979)
Relator's Motion to Dismiss within his Countercomplaint was properly filed with and has
been pending before the trial court since March 25, 2015. Relator's motion remains unrebutted,
unrefutted and unchallenged thus his sworn averments therein are accepted as true, and have
been agreed with by his adversaries–– “silence shows consent” 6 Barb. [N.Y.] 2B, 35, Qui non
negat fatetur. Stare Decisis, “[U]nchallenged averments are accepted as true. The averments, []
accepted as true, reflect there is no legal excuse for [Respondent's] refusal to act[] to entertain
[Relator's Motion to Dismiss] and to either deny it [] or grant it.” DeLeon v. Periman, 530
S.W.2d. 174 (Tex.App. – Amarillo (1975)); Hidalgo County Water Improvement District No.2 v.
Blalock, 157 Tex. 206, 301 S.W.2d. 593, 596 (1957).
B. TRAIL HAS ABUSED ITS DISCRETION
“To establish that the trial court abused it discretion by failing to rule, the relator must
show that the trial court: (1) had a legal duty to perform a nondiscretionary; (2) was asked to
perform that act; and (3) failed or refused to do so.” In re Shredder Co., L.L.C., 225 S.W.3d
676m 679 (Tex.App. – El Paso 2006, orig. proceeding)
The trial court has abused its discretion by failing to rule. Whereas, the trial court has a
legal duty to perform a nondiscretionary, i.e., a ministerial duty to rule upon Relator's motion as
has been demonstrated herein, Simon v. Levario supra, as it was properly and timely presented to
the trial court for ruling and, further, the trial court has no discretion to refuse to rule upon
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Relator's Motion to Dismiss, Barnes v. State, supra. Whereas Relator has demanded that the trial
court perform its duty to rule via his Demand for Dismissal and it has refused to perform and to
date, the trial court has refused to rule. Therefore, the aforementioned considered, the trial court
has abused its discretion by failing to rule.
C. DENIAL OF DUE PROCESS BY TRIAL COURT
The trial court has denied Relator Due Process by refusing to perform its legal duty which
Relator has requested performance of.
“A refusal to rule within a reasonable time would frustrate the process and, moreover,
would constitute a denial of due course of the law.” Barnes v. State, 832 S.W.2d 424 (Tex.App. –
Houston (1992). Relator has demonstrated herein above, that the trial court has refused to rule
upon his Motion to Dismiss or Demand for Dismissal. The “reasonable time” requirement is not
specifically defined, however, in order to determine a “reasonable time” frame in which a ruling
should be made “[A]ll the circumstances are taken into account.” (Id.) The circumstances to be
taken into account are the length of time Relator's Motion to Dismiss has been pending before
the trial court and Relator's adversaries' Response or lack therof, to his Motion.
Realtor's Motion to Dismiss and Demand for Dismissal have been properly filed and have
been pending before the trial court since March 25, 2015 and May15, 2015, respectively, both of
which remain unchallenged. The aforementioned considered, the trial court has had a
“reasonable time” to rule so that Relator can either accept or challenge the ruling.
Further, F.R.C.P. Rule 12 (a) (1) (B) provides that “A party must serve an answer to a
counterclaim or crossclaim within 21 days after being served with the pleading that states the
counterclaim or crossclaim. Relator's adversaries have had more than twenty-one (21) days to
serve an answer to Relator's Countercomplaint with Motion to Dismiss, therein. Relator's
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adversaries are in Default.
Even further, Realtor's unchallenged averments have been accepted and agreed to by his
adversaries (6 Barb. [N.Y.] 2B, 35; Qui non negat fatetur. supra) as true, see DeLeon v. Periman,
supra. Considering the fact that Relator's Motion to Dismiss and Demand for Dismissal are
unchallenged and the “Complaints” are made by Individuals with no personal knowledge thus
disqualified as competent witnesses pursuant to federal and state rules of evidence, Relator's
Countercomplaint with Motion to Dismiss and his averments therein, as well as his Demand for
Dismissal constitute the only facts before the trial court for it to rule upon.
D. COMPELLING THE TRIAL COURT TO ENTER A SPECIFIC RULING
In general, it is not proper for mandamus to issue to compel a discretionary act of trial
court, that is to say, that mandamus will not issue to compel the trial court to enter a specified
type of judgment. “There is, however, an exception to [the] general rule. A court [] may be
directed by mandamus to enter a particular judgment if that judgment is the only proper one that
can be rendered in the circumstances and there is no other adequate remedy.” 37 Tex.Jur.2d,
Mandamus, Sec. 48; Thomason v. Seale, 122 Tex. 160, 53 S.W.2d 764; Carnes v. Cunningham,
Tex. Civ. App., 350 S.W.2d 59.” State ex rel. Vance v. Routt, 571 S.W.2d 903, Tex. Court of
Criminal Appeals (1978) “For the petitioner to prevail in this application for writ of mandamus
he must demonstrate both that there was only one proper judgment that could be entered and that
the entry of the judgment based upon the facts found by the court was in essence a mere
ministerial act” (Id.)
The only one proper judgment that could be entered, is a dismissal of the criminal
allegation and cause against Relator. Relator has been subjected to continuous abject denial of
due process by the officers of/for the NBPD, the magistrate, the Clerk of, and,or the
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Administrator for, the trial court and Respondent.
The officers of/for the NBPD denied Relator Due Process by failing or intentionally
disregarding their duty under Tex. C. Crim. Proc. Art. 14.06 (see Apx. K pg.7 – 18, #14. - 31. &
pg.29 – 34; #65. - 76.). Further, the officers denied Relator Due Process under, and violated his
Civil Rights protected by, the Fourth Amendment to federal constitution (Id.). Relator was
arrested, searched and his property seized in absence of a Fourth Amendment warrant or any
warrant. Furthermore, the actions and omissions of the officers not only constitute a denial of
Due Process to Relator and violations of his Civil Rights, but also Misconduct. The acts,
omissions, misconduct, denial of Due Process and violations of Realtor's Civil Rights taint, and
place a cloud upon, the trial court proceedings (see Apx. Tab K pg.7 – 18, #14. – 31.) because
said acts, omissions, denial and violation create the foundation for which said proceeding are
based upon: “When the foundation fails, all fails.”; Debile fundamentum, fallit opus. “Where
there is a weak foundation, the work falls.” 2 Bouv. Inst. n. 2068; Sublato fundamento cadit
opus. “Remove the foundation, the structure or work fall.”; “Remove the foundation, the
structure or work fall.” Luke 6:48-49
The magistrate, Elen Salyers, subjected Relator to a denial of Due Process by, iner alia,
conducting court proceeding in secret and denying Relator an Examining Trial required by law.
(see Apx. Tab K pg.18 - 34, # 32. - 76.) The Clerk or deputy therefor, and,or Administrator for,
the trial court by failing or intentionally disregarding a duty to correct the incorrect address on
file with the trial court for Relator when he notified the court of the incorrect address and
provided it with the correct one, failed to provide notice to Relator thus denying him Due
Process. Respondent, by refusing to rule upon Relator's Motion to Dismiss or Demand for
Dismissal has denied Relator Due Process. The officers, magistrate, Clerk or deputy theefor,
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and,or Administrator for the trial court and Respondent have each of them in their own part acted
or omitted to act dening Relator Due Process, continuously. At all stages, Relator has been
denied Due Process and been subjected to Misconduct, denial of rights both statutory and Civil,
and suffered abuses breeding an overall distrust in Relator for the justice and judicial systems.
Such denials of due process and violations of Civil Rights, inter alia, has stripped the trial
court of subject-matter jurisdiction (see Apx. Tab K pg.31 - 34., #70. - 76.) and in absence
thereof, the court is without power to entertain the criminal allegation or cause against Relator.
Furthermore, the trial has been jurisdictionally challenged and jurisdiction has not been proven
by Relator's adversaries (see Apx. Tab K pg.5 - 76, #9. - 171.). In addition to the trial court's
lack of subject-matter jurisdiction, it further lacks personal, political and civil contractual
jurisdiction (Id.) and therefore, power over Relator criminal cause, thereagainst. Compelling the
trial court to enter a ruling dismissing the criminal allegation, charge and cause against Relator
by mandamus is the only remedy at law available to him, Respondent refuses to rule at all.
The entry of the judgment based upon the facts before the court is in essence a mere
ministerial act as it requires no discretion from Respondent, and Respondent has no discretion to
refuse to act, Barnes v. State supra, and rule upon Relator's unchallenged Motion to Dismiss or
Demand for Dismissal. Relator's adversaries have remained silent, thereby agreeing to Relator's
sworn averaments within his Motion to Dismiss and Demand for Dismissal, accepting same as
true, thereby constituting the only certain and settled, resolved facts before the trial court, Simon
v. Levario supra, requiring no discretion. Further, in absence of jurisdiction there is no room for
discretion, State ex rel. Rosenthal v . Poe, 98 S.W.3d. 194 – Tex: Court of Criminal Appeals
(2003). Furthermore,“it is not for the trial court to inject itself into the adversary process on
behalf of one class of litigant. Doing so necessarily implicates the court’s impartiality and
In re Jason Childress Page 9 of 15
discriminates against opposing parties.”; Jacobsen v. Filler, 790 F.2d 1362, 1365 & n.7 (9th
Cir.1986); Bacharach & Entzeroth, Judicial Advocacy in Pro Se Litigation: A Return to
Neutrality, 42 Ind. L. Rev. 19 (2009); Correll, Finding the Limits of Equitable Liberality:
Reconsidering the Liberal Construction of Pro Se Appellate Briefs, 35 Vt. L. Rev. 863 (2011);
Healey, In Search of the Delicate Balance: Legal and Ethical Questions in Assisting the Pro Se
Patron, 90 Law Libr. J. 129 (1998); Swank, In Defense of Rules and Roles: The Need to Curb
Extreme Forms of Pro Se Assistance and Accommodation in Litigation, 54 Am. U.L. Rev. 1537
(2005). For the trial court to inject itself in an adversarial position to either Relator or his
adversaries, goes against the basic concept of the American Adversarial system–– the trial court
is not and should not be Relator's adversary. Respondent is to be and remain a neutral referee.
Considering Relator's adversaries have offered no contest, there is in fact, no contest and
Respondent is left with but one decision and that is to rule on Relator's Motion to Dismiss or
Demand for Dismissal in favor of Relator, thereby dismissing the criminal allegation, charge and
cause against him.
PLEADING SHALL BE CONSTRUED TO DO JUSTICE
"Following the simple guide of rule 8(f) that all pleadings shall be so construed as
to do substantial justice"... "The federal rules reject the approach that pleading is a
game of skill in which one misstep by counsel may be decisive to the outcome
and accept the principle that the purpose of pleading is to facilitate a proper
decision on the merits." The court also cited Rule 8(f) FRCP, which holds that all
pleadings shall be construed to do substantial justice. Conley v. Gibson, 355 U.S.
41 at 48 (1957)
"The assertion of federal rights, when plainly and reasonably made, are not to be
defeated under the name of local practice. Davis v. Wechler, 263 U.S. 22, 24;
Stromberb v. California, 283 U.S. 359; NAACP v. Alabama, 375 U.S. 449
Pro se pleadings are to be considered without regard to technicality; pro se
litigants' pleadings are not to be held to the same high standards of perfection as
lawyers. Jenkins v. McKeithen, 395 U.S. 411, 421 (1959); Picking v. Pennsylvania
In re Jason Childress Page 10 of 15
R. Co., 151 Fed 2nd 240; Pucket v. Cox, 456 2nd 233
"Pleadings are intended to serve as a means of arriving at fair and just settlements
of controversies between litigants. They should not raise barriers which prevent
the achievement of that end. Proper pleading is important, but its importance
consists in its effectiveness as a means to accomplish the end of a just judgment."
Maty v. Grasselli Chemical Co., 303 U.S. 197 (1938)
The plaintiff's civil rights pleading was 150 pages and described by a federal
judge as "inept". Nevertheless, it was held "Where a plaintiff pleads pro se in a
suit for protection of civil rights, the Court should endeavor to construe Plaintiff's
Pleadings without regard to technicalities. Picking v. Pennsylvania Railway, 151
F.2d 240, Third Circuit Court of Appeals
It was held that a pro se complaint requires a less stringent reading than one
drafted by a lawyer per Justice Black in Conley v. Gibson (see case listed above,
Pro Se Rights Section). Puckett v. Cox, 456 F.2d 233 (1972) (6th Cir. USCA)
"... allegations such as those asserted by petitioner, however inartfully pleaded,
are sufficient to call for the opportunity to offer supporting evidence. We cannot
say with assurance that under the allegations of the pro se complaint, which we
hold to less stringent standards than formal pleadings drafted by lawyers... ".
Haines v Kerner, 404 U.S. 519 – 521, (1972)
"Court errs if court dismisses pro se litigant without instructions of how pleadings
are deficient and how to repair pleadings." Plaskey v. CIA, 953 F.2nd 25
Nowhere can be found a competent attorney that is able to execute the proper
remedy without embarrassing the Court, Corpus Juris Secundum 2d Vol. 7 section
25.
Congress Declares Bible "The Word Of God"
Oct. 4, 1982, Public Law 97-280, 96 STAT. 1211, 97th Congress
In re Jason Childress Page 11 of 15
REQUEST FOR RELIEF
For the reasons set forth herein, Relator, Jason Chidlress, requests that this Court grant his
Petition for Writ of Mandamus and compel Respondent, Charles A. Stephens, to perform and
enter a ruling upon Relator's Motion to Dismiss or Demand for Dismissal. Further, Relator
requests that this Court to direct Respondent to grant Relator's Motion to Dismiss or Demand for
Dismissal, thereby dismissing the criminal allegation, charge and cause against Relator.
Respectfully submitted,
/s/: Jason Childress
Jason Childress
9141 Gristmill Ct.
Fort Worth, Texas
jchildress1980@gmail.com
In re Jason Childress Page 12 of 15
VERIFICATION
Executed without the United States:
Pursuant to 28 U.S. Code § 1746 (a): I, Jason Truman Childress, Relator herein, in lieu of
Notarization of this document due to an inability to pay therefor, do declare, certify, verify
and state under penalty of perjury under the laws of the United States of America that I am a
living man, of lawful age and competent to testify to the facts stated herein, and that the facts and
statements made herein by me are true and correct.
/s/: Jason Childress
Executed on this 3rd day of August , 2015.
In re Jason Childress Page 13 of 15
CERTIFICAT E OF SERVICE
I, Jason Childress, Relator herein, hereby certify that a true and correct copy of this
Petition for Writ of Mandamus is being sent via email on this on this 3rd day of August ,
2015 to the following:
Charles A. Stephens
Comal County Court at Law 2
150 N. Seguin, Ste. 301
New Braunfels, Texas 78130
Abigail Whitaker
Comal County District Attorney's Office
Comal County Courthouse Annex
150 N. Seguin Ave. Ste. 307
New Braunfels, Texas 78130
/s/: Jason Childress
9141 Gristmill Ct.
Fort Worth, Texas
Submitting on this 3rd day of August , 2015.
In re Jason Childress Page 14 of 15
NO.
In Re Jason Childress,
Relator
APPENDIX TO AND FOR RELATOR'S PETITIONS
FOR WRIT OF HABEAS CORPUS AND WRIT OF MANDAMUS
List of Documents
1. Petition for Writ of Hebeas Corpus..................................................................... Tab A
2. “PR BOND”........................................................................................................ Tab B
3. Relator's Letter to Trial Court.............................................................................. Tab C
4. Trial Court Online Record Screenshot................................................................ Tab D
5. “COMPLAINT (OCA)”...................................................................................... Tab E
6. RETURNED NOTICE........................................................................................ Tab F
7. “AFFIDAVIT/FAILURE TO APPEAR”............................................................. Tab G
8. “ORDER FOR ARREST-FAILURE TO APPEAR”........................................... Tab H
9. “CAPIAS-FAILURE TO APPEAR”................................................................... Tab I
10. Affidavit for Countercomplaint........................................................................... Tab J
11. AFFIDAVIT OF COUNTERCOMPLAINT........................................................ Tab K
12. TABLE OF AUTHORITIES: POLICE REPORTS ARE HEARSAY................. Tab L
13. TABLE OF AUTHORITIES: LAW OF VOIDS IN TEXAS.............................. Tab M
14. Return Receipt: BOBBIE KOEPP....................................................................... Tab N
15. Return Receipt: Kevin M. Schoch....................................................................... Tab O
16. Return Receipt: TOM WIBERT........................................................................... Tab P
17. Return Receipt: ABIGAIL WHITAKER............................................................. Tab Q
18. DEMAND FOR DISMISSAL............................................................................. Tab R
In re Jason Childress Page 15 of 15