Van Horn, Frederick William ( 2015 )

FILED IN
COURT OF CRIMINAL APPEALS
Docket No. WRIT 1001.
OCT 01 2015
Re: Cause No: E0004327
Abel Acosta, Clerk
§ IN THE ELLIS COUNTY
STATE OF TEXAS:
§
PLAINTIFF § COURT AT LAW No. 2
§
vs. § 109 SOUTH JACKSON St.
§
Frederick-William= Van Horn § WAXAHACHIE, TEXAS
§ RECEIVED IN
Relater § 75168 COURT OF CRIMINAL APPEALS
SEP 2 9 2015
Notice of Appeal: Pleading.
Abet Acosta, Clerk
I am Appealing the September gth order of Ellis county court at law No. 2.
The reason I have prepared this notice of appeal this way is because of all
the problems I am having with the Ellis county clerks. The latest being my
asking for the docketing statement & being refused. The challenge to the subject
matter jurisdiction being denied on the 9th is the grounds for this appeal.
Summary of the complaint provided because this is as I understand it an
accelerated appeal: Appeal-Regular.
I understand I am to follow the rules of a regular appeal just at the
accelerated table.
The state has no standing to prosecute me in the first place, no grounds, &
none of any other kind of right to prosecute me, this being essentially the third
time makes it just another form of malice. They have no right to prosecute me or
even try. I am not liable or subject to their interests. They have no right to the
precedence provided by probable cause when they know they have no cause to
prosecute me: in the first place e.g. probability or other wise via such grounds.
The only mater before the court at this time is the challenge to the subject matter
& the subsequent mandatory termination of the crim~nal prosecution against me.
The damages are not before the court until the accrual of the criminal action, & a
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new action is filled see: Texas causes of action chapter 19-A. §4.2 Accrual. To me
that does not mean that the city cant make reparations' before this happens. It
just means the judges dismissal of the criminal action against me cannot include
intent to dismiss the damage claims I have asserted. The city is as fully noticed
as I can provide.
Subjects/elements: paramount to prosecution that they don't have: where is
the damage party? How was I not exercising my rights? & in exercising my
rights how do they have any complaints at all? Where is the explicit waver of my
rights? How have I given the state or those under color of its law just cause to
prosecute me? Where is the state' answer? How can they prove what really
matters?? e.g. My liability to such charges in the light of all the law I have plead
to the contrary of the charges? Are you going to continue this injustice against
me? Isn't the evidence supposed to at least have a possible point of being even
relevant to some liability at all? If not! what judgment do you have jurisdiction to
render ·in their favor? The only possible answer is none! I am not guilty of
anything except exercising my constitutionally secured & guaranteed rights.
I understand a Plea to the Jurisdiction is appropriate when the judgment
sought by the prosecution is not within the courts jurisdiction to grant, such as in
this case. I understand that a plea to the jurisdiction is to resolve the case
without regard to the merits of the case & thus is supposed to be granted without
prejudice. I know that all the facts, evidence e.g. the matter of law I have raised
is what gives this court it' just grounds to rule in my favor in dismissal of the
states cause of action for lack of jurisdiction & thus is- a final judgment, & .i.e.
should be with prejudice. The principle intent of the law prejudiced their case
before I was even cited & they have no excuse not to know this.
The fact of this matter is I challenge to the jurisdiction. It should have
been granted without any delay. I should have had justice at my very first
response.
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• Conclusion
•
Neither the state or Waxahachie has a case against me. I am entitled to the
relief sought, & to per sue my damages in a separate action..
Relief Sought
Please terminate the criminal action for lack of jurisdiction.
To further address my complaint:
So that you may have at your finger tips my ongoing complaint against the
county clerks. I · provide the clerks duties from many sources, to show the
damages they cause me were unnecessary & deliberate causing me to take this
approach instead. Damages I most certainly hold Waxahachie liable for. There is
more than just complaining about those clerks here in.
Issues: Appeal can be taken from refusal to dismiss for lack of jurisdiction
TEXAS RULES CIVIL TRIALS: COMMENTARIES: Ch. 3. Defendant's Response
& Pleadings F. Plea to the Jurisdiction---Challenging the Court
§1.2 Purpose. A plea to the jurisdiction is a procedural device used to
challenge the court's subject-matter jurisdiction over a claim. Texas Dept. of
Parks & Wildlife v.. Miranda, 133 S.W.3d 217, 232 (Tex.2004); BlandiSD v.. Blue,
34 S.W.3d 547, 554 (Tex.2000); see Heckman v. Williamson Cty., 369 S.W.3d 137,
147 (Tex.2012). Without subject-matter jurisdiction, a court does not have
authority to render judgment & must dismiss the claim without resolving the
parties' substantive argument. See City of Houston v.. Rhule, 417 S.W.3d 440,
442·43 (Tex.2013); DaimlerChrysler Corp. v. Inman, 252 S.W.3d 299,304
(Tex.2008); Bland ISD, 34 S.W.3d at 553·54. Thus the defendant can use a plea to
the jurisdiction to defeat a cause of action without regard to its merits. Mission
Consol. ISD v.. Garcia, 372 S.W.3d 629, 635 (Tex.2012); Bland ISD, 34 S.W.3d at
554.
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§2. PLEA TO THE JURISDICTION
•
§2.1 Form. A plea to the jurisdiction may be included in the answer or
filed as a separate motion. TRCP 85. If filed as a motion, it should be captioned
as a motion to dismiss for lack of jurisdiction.
NOTE
Subject-matter jurisdiction can also he challenged in another procedural
·-
instrument? such as a traditional motion for summary judgment. State v.Lueck,
290 S.W.3d 876, 884 (Tex.2009); Bland ISD v. Blue? 34 S.W.3d 547, 554
(Tex.2000); see also TDCJ v. Simons, 140 S.W.3d 338, 349 (Tex.2004)
{interlocutory appeal under CPRC §51.014(a) (B) can he taken from refusal to
dismiss for lack of jurisdiction whether jurisdictional argument is make in plea to
the jurisdiction or some other instrument).
§2.4 No deadline. There is no deadline for the plea to the jurisdiction.
Lack of subject~matter jurisdiction is fundamental error & can be raised at any
time. Sivley v. Sivley, 972 S.W.2d 850, 855 (Tex.App. ···Tyler 1998, no pet.).
§3.2 No Standing. A plea to the jurisdiction is proper to challenge a party's
lack of standing. See M.D. Anderson Cancer Ctr. V. Novak, 52 S.W.3d 704,710·11
(Tex.2001),
Issues: should file notice ofaJ!Peal instead ofasking for permission.
COMMENTARIES Ch. 3. Motions of Appeal P. Motion .for Interlocutory
Appeal & Stay Pending Appeal
§2. INTERLOCUTORY APPEALS
For an interlocutory order to be appealable, a statute or rule must
specifically authorize the appeal. See Ware v. Miller, 82 S.W.3d 795, 799
(Tex.App.···Amarillo 2002, pet. denied). When a statute or rule authorizes an
appeal, parties do not need to file a motion to appeal an interlocutory order.
Instead. they should file a notice of appeal & proceed with an accelerated appeal
under the TRAPs. See TRAP 28.1(a).
· Ch. 1. Preliminary Issues B. Considerations Before Appeal
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•
§2.6 Accelerated appeals. Appeals of certain orders & judgments are accelerated.
See TRAP 28.l(a). An accelerated appeal has shortened schedules for filing the
notice of appeal, record, & brief. See "Deadlines in an accelerated appeal," §2.6.2,
this page. Along with cases given precedence by law & cases given precedence by
the courts in the interest of justice, accelerated appeals are given precedence over
other cases. TRAP 40.1. See "Appeals that Must Be Given Precedence," ch. 3-C,
§5,. For the procedure for a motion to accelerate the appeal, see "Motion to
Accelerate Appeal or to Give Appeal Precedence," ch. 3-C.
Address of the accelerated appeal requires criminal case: TRAP 40.2
Criminal Cases. In cases not otherwise given precedence by law. The court of
appeals must have & determine a criminal appeals if the earliest possible time,
having due regard for the parties rights & for the proper administration of justice.
Note: a matter at hand regarding right to appeal shall not be abridged,
TRAP 40.2. Accelerated Appeal in Criminal Cases, for good cause.
What makes it criminal anyway? How is it not civil when the only thing
criminal about the case is the aspect of. prosecuted in the nave of the state? See
Code of Criminal Prosecution Ch. 3 Art. 3.02 & Burks v. State; otherwise the only
real crime here is that I'm being prosecuted against all sound principle of law &
wisdom. How do you define it as criminal when you have n~ damaged party? The
State has no nexus between the charges & my liability, they are misapplying the
only possible application of Burks v. State.
TRAP 40.1. Point of interest, types of cases that have precedence over all others:
(a) A case given precedence by law; such as: Denial of a Plea to the
Jurisdiction, or challenge on the fact of, Lack of Subject Matter Jurisdiction; the
subject is the ruling. How is a judgment to have any authority when its purported
basis is actually thin air?
(b) An Accelerated Appeal: I'm giving the statutory provisions on how an
appeal on the grounds of a lack of vital jurisdiction is an Interlocutory Appeal. By
nature an appeal; that is to be accelerated, & that the proper course is to just
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appeal. if as under a normal appeal. but just shorten deadlines, e.g. I filed this
here Notice of Appeal instead of motioning or seeking permission to appeal.
(c) A case that the court determines should be given precedence in the
interest of justice; such as in this case wherein termination of the proceedings
against me immediately is & has always been sought & is the only just thing to do
in such a lack of authority to proceed.
Commentaries Texas Civil Appeals. Ch. 1. B. §2.6. 2. Deadlines in an
accelerated appeal:
(1) Notice of Appeal: The notice of appeal generally must be filed within 20
days after the judgment or order being appealed was signed, & post judgment
motions do not extend the time for perfecting an appeal, TRAP 28.1(b): See
"Note", 5-A, §52.2 (1).
(2) Record must be filed within ten days. The TRAP's permit the court to
hear an accelerated appeal on the original papers sent by the trial court.
I am requesting the clerks record to include certain documents which
situation ally automatically provides for a nearly complete record & since she says
the cost is a dollar a page I am providing a 195.00 money order for the docketing
fee & a 500.00 up front by Priority U.S. mail to the county court at law No. 2 of
Ellis county, under an agreement to pay for other parts of the record as per the
rules, & I am hoping to avoid more delay caused by these clerks.
Commentaries Texas Civil Appeals. Ch. 3. p. §2. Interlocutory Appeals 3:
For an interlocutory order to be appertained:
§2. INTERLOCUTORY APPEALS
For an interlocutory order to be appealable, a statute or rule must
specifically authorize the appeal. See Ware v. Miller, 82 S.W.3d 795, 799
(Tex.App.···Amarillo 2002, pet. denied). When a statute or rule authorizes an
appeal, parties do not need to file a motion to appeal an interlocutory order.
Instead. they should file a notice of appeal & proceed with an accelerated appeal
under the TRAPs. See TRAP 28.1(a).
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Argument for a why on writ why Jendrzey had plenary power to:
•
NOTE
Filing a post judgment motion does not extend the appellate timetable for
an appellate appeal, but a timely filed motion for new trial extends the tn"al
court's plenary power. See TRAP 329b(e). · See ``comparing the appellate
timetable & plenary power,» §6.~ p. 215. Thus, if the trial court modifies the
judgment while it retains plenary power, 307 S.W.3d 299, 309 (Tex.2010); Mapco,
Inc. v. Forrest, 795 S.W.2d 700, 703 (Tex.1990).
Being able to hear anything does not in anywise mean a right to rule
anyway you wont. A point I make to the court of general jurisdiction do to the
county court at law No. 2 having concurrent jurisdiction inevitably with the
district courts.
Sept. 17th, 2015 is the day I was next affronted by an Ellis county clerk. she
refused vehemently to help me get a copy of the docketing statement or view the
·context I tried to show her out of the book sec 2 below that I had with· me at the
time. For this continuing problem I am having with this courts clerks I am
strongly considering conducting any further filings there thru the U.S. postal
sel'Vl.ce.
Pursuant to Texas Civil Appeal 2015 Commentaries Ch. 5. B. §2 Form for
Docketing Statement
§9. EFFECT OF FAILURE TO PERFECT APPEAL
If the appellant does not timely prefect the appeal, the appellate court does
not acquire jurisdiction over the appeal. Butts v. Capitol City Nursing Home,
Inc., 705 S.W.2d 696, 697 (Tex.1986); Anderson v. Casebolt, 493 S.W.2d 509, 511
(Tex.l973). In such a case, the appellate court must dismiss the appeal for lack of
jurisdiction. See Florance v. State, 352 S.W.3d 867, 874-75 (Tex.App.---Dallas
2011, no pet.).
§2. FORM FOR DOCKETING STATEMENT
An appellant preparing to file a copy of the notice of appeal in the court of
appeals should consult the court's website or call the clerk of the court of appeals
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to get the form for the docketing statement. The clerks of al Texas courts of
appeals have adopted a uniform docketing statement available in a PDF file on
each court's website. The appellant must complete this form by filing it in &
returning it to the court of appeals within the time prescribed by the court. For
the official websites of each of the 14 courts of appeals, visit www.txcourts.gov.
COMMENTARIES Ch. 6. Record on Appeal B. Clerk's Record §2. Duties
of Trial-Court Clerk
§2.1 For trial. Gov't Code §51.303 & TRCP 74, 75, 75a, & 75b prescribe the
duties of the trial-court clerk in the trial of the case, which are the following:
1. File papers. Receive & file the papers in the case. See Gov't Code
§51.303(a); TRCP 74, 75.
2. Receive 'exhibits. Receive & maintain all the exhibits in the case. TRCP
75a, 75b.
§2.2 For appeal. TRAP 34.5(a) & the Order Directing the Form of the
Appellate Record (order appended to TRAPs, p. 510) prescribe the duties of the
trial-court clerk in the appeal of the case, which are the following:
1. Prepare record. On receiving a notice of appeal, the clerk must prepare
& file a clerk's record without waiting for a request from the parties if the
appellant pays for or makes arrangements to pay for the record or shows that she
is entitled to appeal without paying fees. See Trap 34.5(a), 35.3(a)(2); Order
Directing the Form of the Appellate Record, Rule 1.1 (order appended to TRAPs,
p. 510). See "Deadline to File Appellate Record in Court of Appeals," ch. 6-A, §5,
p. 226; "Costs of Clerk's Record," §6, p. 236; "Filing Clerk's Re~ord," §8, p. 237.
The clerk should prepare only one consolidated record in a case, even if more that
one notice of appeal or request for inclusion of items is filed. Order Directing the
Form of the Appellate Record, Rule 1.1 (order appended to TRAPs, p. 510). In
preparing the record, whether electronic or paper, the clerk must do the following:
(1) Gather documents. The clerk must gather the documents required by
TRAP 34.5(a) (see "requirements,'' §3.1, p. 234) & those requested by any party
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under TRAP 34.5(b) (see "Requesting Clerk's Record," §4, p. 235). Order Direction
the Form of the Appellate Record, Rule 1.1(a) (order appended to TRAPs, p. 510).
Each document must show the filing date. ld, Rule 1.l(c), p. 510. Each order &
judgment must show the date of signing by the judge, unless the date is unknown,
See id, Rule 1.1(g), p. 510.
(2) Arrange documents in chronological order. The clerk must arrange the
documents in ascending chronological order by date of filing or occurrence. Order
Directing the Form of the Appellate Record, Rule 1.1(d) (order appended to
TRAPs, p. 510). Each individual document must start on a new page, Id, Rule
1.1(b), p. 510.
(3). Number pages. The clerk must number pages consecutively at the
bottom of the page. Order Direction the Form of the Appellate Record, Rule 1.1(e)
(order appended to TRAPs, p. 510). Page numbering must start on the front cover
of the first volume of the clerk's record & continue to the final page of the record
without regard for the number of volumes in the record. Id Each page···including
the front & back covers, the table of contents, the certification page, & any
separator pages···must be numbered. Id
§3. Contents of Clerk's Record
11. Other documents designated by the parties to be included in the clerk's
record. TRAP 34.5(a)(13). See "Requesting Clerk's Record," §4, this page.
§3.2 Consultation. The clerk may consult with the parties about the
contents of the clerk's record. TRAP 34.5(h).
§4. Requesting Clerk's Record
At any time before the clerk prepares the record, either party may make a
written request asking the trial-court clerk to include in the record other
documents in addition ·to those listed in TRAP 34.5(a). TRAP 34.5(b)(1).
Although it is not required, a party should specify in writing all the documents to
be included in the clerk's record, even those listed in TRAP 34.5(a).
PRACTICE TIP
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In an accelerated appeal. it is easier & faster to bypass the clerk & Jile a
record composed ofsworn & uncontroverted copies ofthe relevant documents. The
parties may file a record ofcopies of documents compiled by the parties instead of
asking the clerk to prepare the record TRAP 28~ 1 (e).
§4.1 Specific request. If a party wants the clerk's record to include items
beyond those required by TRAP 34.5(a), the party should send a letter to the clerk
specifically describing the items to be included. TRAP 34.5(b)(1),(b)(2); see. e.g.,
Excel Corp. v. Porras, 14 S.W.3d 307, 311 (Tex.App.···Corpus Christi 1999, pet.
denied) (request for "the file" is to vague). See FORM 6B=1. The letter should be
sent before the clerk prepares the record. TRAP 34.5(b)(1). If, however a party
discovers a document has been omitted after the clerk's record is prepared & filed,
the party can move to have the record supplemented. See "Supplementing
Record," ch. 6-A, §7, p. 229. The party cannot ask the clerk to include in the
record all the documents filed in the case. See TRAP 34.5(b)(2) (clerk must
disregard general requests for "all papers filed in the case"). The following are
some additional documents that a party should consider requesting for the record:
I should have been able to get a copy from the County Court at Law No. 2
Clerk, but Morgan was not there & the other Clerk I did not ask for her name
because they get so upset when I do. I ask her pursuant to said book point in part
highlighted as to that I wanted a copy of the Docketing Statement, She says She
doesn't know anything about that book I'm holdiD.g & She could not help me. I
don't understand- what is going on here! Why are the Clerks inept? I figured
because the form is a uniform appellant court document & a court that has
appellant jurisdiction is a court of appeals. I should have been able to get it, so I
tried the District Clerks Office, & they said use the Law Library across the hall, I
did & I got a copy off the Internet.
How do these clerks not know that all the rules of Appellant Procedure
apply in Trial Courts of Appellant Jurisdiction, Duties of Trial Court Clerk; same
book I used to try to get the docketing statement. Addressed above.
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2. Deadlines in an accelerated appeal.
•
(1) Notice of appeal. Unless otherwise provided by statute, the notice of
appeal generally must be filed within 20 days after the judgment or order being
appealed was signed or within the time allowed for an extension under TRAP
26.3. See TRAP 26.1(b), 26.3; see, e.g., Health & Safety Code §574.070(b) (notice
of appeal from order requiring court-ordered mental-health services must be filed
no later than ten days after order). See" Accelerated appeal," ch. 5-A. §5.2.2, p.
208. The filing of a post judgment motion does not extend the time for perfecting
an accelerated appeal. TRAP 28.1(b). See "Note," ch. 5-A, §5.2.2(1).
A question I address is whether a Texas court can constitutionally exercise
jurisdiction over the defendant.
Texas Rules of Civil Appeals chapter 1. H. §2 Filing fees in the appellate
courts §2.1. 1. 1·1 3 (sic) cost of this appeal proceeding is $195.00.
I don't think this court or the municipal court are practicing justice, other
wise I would have already received my rightful remedy. I think they are
practicing an adversarial system of law: based on a presumption of an amendment
to the law: I contend they presume I created, i.e. that they have a probability of
cause to proceed, that neither exists nor do they have the right to enforce.
Pursuant to the Texas criminal code complaints against a clerk go to the
judge she works for or is handling a filing too, thus I am complaining to you
about her, as well as the justice department.
I filled a writ of prohibition, not an interlocutory appeal, the writ was
supposed to: with ~ a level of reason it was to be acted upon in an earliest means
possible kind of manner, except over a month of delay has accrued, & the 25 has
come & gone, on the 25 judge Jendrzey postponed the hearing scheduled for the
25th on behalf of the filed writ. I can see where judge Jendrzey is required to
postpone the proceedings in the event of an interlocutory appeal, but the writ
commentary says this statutory courts was supposed to rule if possible before the
day in question.
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Texas Rules Appellate Procedure 9. Service 9.5.
• (a) Service of all
documents required At or before the time of a document's filing, the filing party
must serve a copy on all parties to the proceeding..... Except in original
proceedings, a party need not serve a copy of the record.
Texas Rules Appellate Procedure 12. DUTIES OF THE APPELLATE
CLERK
12.1 Docketing the Case. On receiving a copy of the notice of appeal, the
petition for review, the petition for discretionary review, the petition in an
original proceeding. or a certified question, the appellate clerk must:
(a) endorse on the document the date of receipt;
(b) collect any filing fee;
(c) docket the case;
(d) notify all parties of the receipt of the document; &
(e) if the document filed is a petition for review filed in the Supreme Court,
notify the court of appeals clerk of the filing of the petition.
12.2 below says how the document was supposed to be numbered.
12.2 Docket Numbers. The clerk must put the case's docket number on
each item received in connection with the case & must put the docket number on
the envelope in which the record is stored.
(a) Numbering system. Each case filed in a court of appeals must be
assigned a docket number consisting of the following four parts, separated by
hyphens:
(1) the number of the court of appeals district;
(2) the last tow digits of the year in which the case is filed;
(3) the number assigned to the case; &
(4) the designation "CV" for a civil case or "CR" for a criminal case.
(b) Numbering order. Each case must be docketed in the order of its filing.
(c) Multiple notices of appeal. All notices of appeal filed in the same case
must be given the same docket number.
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(d) Appeals not yet filed A motion relating to an appeal that has been
perfected but not yet filed must be docketed & assigned a docket number that will
also be assigned to the appeal when it is filed.
12.4 Withdrawing Pape_rs. The clerk may permit the record or other filed
item to be taken from the clerk's office at any time, on the following conditions:
I provide 12.4 in objection to the municipal clerks refusing to provide me
pleadings summaries, or a list of documents filed or entered into the record.
I provide Stokes of 12.6 below because I think this court has a
responsibility to strongly encourage the clerks to adhere to the principles of law or
reprimand the clerks if they have been trained not to violate the state filing law
costing me grief, time, & considerable loss of money. This portion of the damages
will be added to the over all costs I seek against the city because the municipality
also participated in the deprivation of my right to file by also refusing to except
the writ.
12.6 Notices of Court's Judgments & Orders. In any proceeding, the clerk
of an appellate court must promptly send a notice of any judgment, mandate, or
other court order to all parties to the proceeding.
Stokes v. Aberdeen Ins., 917 S.W.2d 267, 268 (Tex.1996). "The clerk is an
officer of the court subject to the court's direction & control in exercising
ministerial duties such as filing documents. The clerk receives documents for
filing on behalf of the court."
BiDJe v. Morton Rubber Indus., 785 S.W.2d 143, 144 (Tex.1990). "An
instrument is deemed in law filed at the time it is delivered to the clerk.
regardless of whether the instrument is file marked. The purpose of this rule is to
protect a diligent party form being penalized by the errors & omissions of the
court clerk. Since [petitioner] satisfied his duty to file timely the [perfecting
instrument], he should not be penalized for an error once the instrument was in
the custody & control of the clerk."
Nowsco Servs. Div. of Big Three Indus. v. Lassman, 686 S.W.2d 179, 203
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(Tex.App.··Houston [14th Dist.1 1984, writ refd n.r.e.). "[T]he provisions of [TRCP
457, now TRAP 12.6,] are mandatory & impose a duty upon the clerk of an
appellate court to notify the attorney of record for each party of an action by the
court in rendering judgment or granting or overruling a motion for rehearing."
I provide the scope of the appellate rules as well as allot of the other
authorities here in because the clerks of Ellis county clerks office seem to need
explicit briefing & or direction in regards to any thing I have tried to get them to
do. I put this document together in part from notes I saved in regards to each
challenge I have got from the Ellis county clerks office.
I can't believe these clerks would suggest the appellate rules don't apply in
a trial court such as this county court at law No. 2 which has appellate
jurisdiction as well as original writ jurisdiction.
I can't believe they would suggest I should check the local rules, when they
should know they don't have any, that's probably why they refused to proved them
contrary to TRAP 1.2 (b) below, when I ask for them.
SECTION ONE: GENERAL PROVISIONS
TRAP 1. SCOPE OF RULES; LOCAL RULES OF COURTS OF APPEALS
L 1 Scope. These rules govern procedure in appellate ~urts & before
appellate judges & post-trial procedure in trial courts in criminal cases.
1.2 Local Rules.
(a) Promulgation. A court of appeals may promulgate rules governing its
practice that are not inconsistent with these rules. Local rules governing civil
cases must first be approved by the Supreme Court. Local rules governing
criminal cases must first be approved by the Court of Criminal Appeals.
(b) Copies. The clerk must provide a copy of the court's local rules to
anyone who request it.
TRAP 3~ DEFINITIONS; UNIFORM TERMINOLOGY
3.1 · Definition.
(b) Appellate court means the courts of appeals, the Court of Criminal
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Appeals, & the Supreme Court.
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(f) Relator means a person seeking relief in an original proceeding in an
appellate court ot~er that by habeas corpus in a criminal case.
3.2 Uniform Terminology in Criminal Cases. In documents filed in
criminal appeals, the parties are the State & the appellant. But if the State has
appealed under Article 44.01 of the Code of Criminal Procedure, the defendant is
the appellee. Otherwise, papers should use real manes for parties, & such labels
as appellee,
History of TRAP a: Former TRAP 3 was amended to delete the definitions
for court below & the reference to "suing out a writ of error to the court of appeals"
TEXAS RULES OF APPELLANT PROCEDURE: TRAP 34. APPELLATE
RECORD
34.5 Clerk's Record.
(a) Contents. Unless the parties designate the filings in the appellate
record by agreement under Rule 34.2, the record must include copies of the
following:
(2) in criminal cases, the indictment or information, any special plea or
defense motion that was presented to the court & overruled, any written waiver,
any written stipulation, &, in cases in which a plea of guilty or nolo contendere
has been entered, any documents executed for the plea;
(3) the court's docket sheet;
(7) the notice of appeal;
(12) in criminal cases, the trial court's certification of the defendant's right
of appeal under Rule 25.2; &
(1) Time for request. At any time before the clerk's record is prepared, any
party may file with the trial court clerk a written designation specifying items to
be included in the record.
(2) Request must be specific. A party requesting that an item be included
in the clerk's record must specifically describe the item so that the clerk can
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readily identify it. The clerk will disregard a general designation, such as one for
"all papers filed in the case."
(2) If the appellate court in a criminal case orders the trial court clerk must
prepare, certify, & file in the appellate court a supplemental clerk's record
contaiiring those findings & conclusions.
(3) Any supplemental clerk's record will be part of the appellate record.
(g) Additional copies of clerk's record in criminal cases. In criminal cases,
the clerk's record must be made in duplicate, The trial court clerk must retain the
copy or copies for the parties to use with the court's permission.
TEXAS RULES OF APPELLANT PROCEDURE: TRAP 35.2 Criminal
Cases. The appellate record must be filed in the appellate court:
35.3 Responsibility for
·,
Filing Record.
(a) Clerk's record The trial court clerk is responsible for preparing,
certifying, & timely filing the clerk's record if:
(1) A notice of appeal has been filed, & in criminal proceedings, the trial
court has certified the defendant's right of appeal, as required by Rule 25.2(d); &
(2) the party responsible for paying for the preparation of the clerk's record
has paid the clerk's fee, has made satisfactory arrangements with the clerk· to pay
the fee, or is entitled to appeal without paying the fee.
TEXAS CIVIL APPEALS COMMENTARIES Chapter 1. A. §3.1 Copies of
local rules. The clerk of the court of appeals must provide a copy of the court's
local rules to anyone who requests one. TRAP 1.2(b). Each court that has
adopted local rules has posted them on the court's webpage, accessible through
www .txcourts.gov. The local rules are also reprinted in this book beginning.
TEXAS CIVIL APPEALS COMMENTARIES Chapter 1. E. §7.4 Docketing.
The clerk must put the case's docket number on all documents received for filing.
TRAP 12.2.
1. Notice of filings.
(1) No notice required. The TRAPs do not require the clerk to give the
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other parties notice of the filing of most documents. The rules presume that other
parties received sufficient notice when the filing party serves them with a copy of
the document. See TRAP 9.5(a), (b).
(2) Notice required. The only documents for which the clerk must give the
other parties notice of filing are (1) the notice of appeal,· (2) the clerk's or
reporter's record, (3) the petition for review, (4) the petition in an original
proceeding,
2. Notice of rulings. The clerk must "promptly"
§7 .6 Collection of filing fees.
1. Due when filed. The clerk collects filing fees for most appellate
documents. See TRAP 5. For the list of documents for which a filing fee is
required, see "Filing Fees in the Appellate Courts," chart 1·1, p. 64. The clerk
may also collect additional fees when certain documents are filed. See "Additional
fees," ch. 1·H, §2.1.2, p. 64. Filing fees for e·filed documents can be paid
electronically. See "E·filingfees," §5.1.3(4), p. 44.
2. Filing complete when paid. If a document is filed without payment of
the filing fee, it is considered conditionally filed on the date it was presented to
the clerk. Garza v. Garcia, 137 S.W.3d 36, 37,·38 (Tex.2004) (motion for new
trial}; Tate v. E.L DuPont de Nemours & Co., 934 S.W.2d 83, 84 (Tex.1996)
(same); jamar v. Patterson, 868, S.W.2d 318, 319 (Tex.1993) (same). The filing is
complete when the fee is paid, but the document is considered filed on the date it
was first presented to the clerk. , 868 S.W.2d at 319.
Reiterated previously filed Law & Contentions
I am presenting this way in hopes that the court of criminal appeals will
grant me the relief I seek without further briefing, I consider proper etiquette to
be towards such as these people who hold such distain for the principles of law, to
warrant such as a summary action as I am seeking this court of criminal appeals
to grant.
This U.S. law is another response I provide to the Ellis county clerks
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•
statement they are not an Attorney.
•
Attorneys have a right to the courts if they are a real party to the action.
There is no right to be an attorney in the practice of law. Lockwood, Ex parte, 154
U.S. 116 (1894).
"The practice of law is an occupation of common right" As per Sims v.
Ahrens, 271 S.W. 720 (1925) & upheld that "they [attorneys] cannot license the
practice of law." As per the Supreme Court in Schware v. Board of Examiners,
353 u.s. 238, 239.
(a) "Once jurisdiction is challenged, it must be proven." Hagens v. Lavine,
415 U.S. 533 Note 3.
(b) "The law provides that once State & Federal jurisdiction has been
challenged, it must be proven." Main v. Thiboutot, 100 S. Ct. 2502 (1980).
(c) "Jurisdiction can be challenged at anytime, even on final
determination." Basso v. Utah Power & Light Co., 495 F 2nd 906 at 910.
(d) "Where there is absence of proof of jurisdiction, all administrative &
judicial proceedings are a nullity, & confer no right, offer no protection, & afford
no justification, & may be rejected upon direct collateral attack. §§Thompson v.
Tolmie, 2 Pet. 157, 7L. Ed. 381; Griffith v. Frazier; 8 Cr. 9. 3 S. Ed. 471.
This delay is clearly a clear abuse of discretion .... & I have no other
adequate appellate remedy.
COMMENTARIES CHAPTER 10. ORIGINAL PROCEEDINGS B. WRIT
OF MANDAMUS §4. STANDARD OF REVIEW Originally, a writ of mandamus
would issue only to compel the performance of a ministerial duty. Walker v.
Packer, 827 S.W.2d 833, 839 (Tex.1992). Since the 1950s, however, the Supreme
Court has expanded the writ power to include a correction of a clear abuse of
discretion when there is no other adequate appellate remedy. Id.
Another set of rules that just reiterates my point that Cindy & her deputy
clerks actions are deliberate acts of fraud! I told her I did not have the time to
brief her & or look up all these rules on how she was supposed to conduct a filing
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& they took advantage of my lack of ability which was just wrong & it hurt me.
If I have to start briefing each time I want to utilize what should be a smooth
judicious opportunity, my costs are going to go up unnecessarily. I have to get
the interest rates from the governor before I supplement my damages sought
again.
CODE OF CRIMINAL PROCEDURE CHAPTER 2. GENERAL DUTIES OF
OFFICERS Art. 2.21. DUTY OF CLERKS
(a) In a criminal proceeding, a clerk of the district or county court shall:
(1) receive & file all papers;
(2) receive all exhibits at the conclusion of the proceeding;
(3) issue all process;
(4) accept & file electronic documents received from the defendant, if the
clerk accepts electronic documents from an attorney representing the state;
(5) accept & file digital multimedia evidence received from the defendant, if
the clerk accepts digital multimedia evidence from an attorney representing the
state; &
(6) perform all other duties imposed on the clerk by law.
Art. 2.22. POWER OF DEPUTY CLERKS
Whenever a duty is imposed upon the clerk of the district or county court,
the same may be lawfully performed by his deputy.
There courts criminal & appellant jurisdiction. having appellant deputy's
authority such as Art. 2.22 above that equates these clerks knowingly violated
my appellant rights denying me my timely obtaining judicial opportunities. If
they are endowed as deputies of the Austin's Texas Court of Criminal Appeals:
see:
Government Code Title 2. Chapter 51. Clerks. Subtitle D. Chapter 51.
Subchapter C. Clerks of Courts of Appeals
GOVT. §51.201. APPOINTMENT; RESIDENCE; BOND; SEAL
\
(d) Each clerk shall provide a seal for the use of the court. The seal must
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have a five·point star & must be engraved with the words "Court of Appeals of the
State of Texas."
CODE OF CRIMINAL PROCEDURE CHAPTER 36. Art. 36.02.
Art. 36.02. TESTIMONY AT ANY TIME
Martinez v. State, 336 S.W.3d 338, 341 (Tex.App.···San Antonio 2010, no
pet.). "Until the argument of a case has concluded, the trial court has the
discretionary power to reconsider its interlocutory rulings·."
A/lmsn v. State, 164 S.W.3d 717, 721 (Tex.App. Austin 2005, no pet.).
Article 36.02 makes it clear that the court had no discretion or authority to admit
evidence after the close of argument. "We conclude that courts error affected
Allman's substantial rights & cannot be disregarded." But see Love v. State, this
page.
Cantu v. State, 662 S.W.2d 455,458 (Tex.App.···Corpus Christi 1983, not
pet.). "Although Art. 36.02 ... applies only to trials before the jury, the sane general
rule should be no less applicable to probation hearings, which by their very nature
are administrative in nature."
CODE OF CRIMINAL PROCEDURE CHAPTER 3. Art. 3.02. . CRIMINAL
ACTION
A criminal action is prosecuted in the name of the State of Texas against
the accused, & is conducted by some person acting under the authority of the
State, in accordance with its laws.
History of CCP art. 3.02= Acts 1965, 59th Leg., vol. 2, ch. 722.
ANNOTATIONS
Burks v. State, 795 S.W.2d 913, 915 (Tex.App.Amarillo 1990, pet. Ref d). "A
crime constitutes an offense against the sovereign. For that reason, a criminal
action is pursued under the authority & in the name of the State."
Fairfield v. State, 610 S.W.2d 771, 779 (Tex.Crim.App.1981).
'"[J]urisdiction' is comprised not of the 'place' of the prosecution, but of the case,
conveyed by statute or constitutional provision, coupled with 'personal'
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jurisdiction over the accused,
•
Being familiar with the intent of the principles of our founding law & the
nature of our Paramount: Inviolable, Inalienable, Rights, the only plausible
assumption evidentially possible regarding Art. 3. 02 in order for it not to conflict
& thus be unconstitutional is for the term sovereign to mean & or connote no more
than possessing the same right as any one under the laws as apposed to a kings
feudal right. Thus the only possible literal association possible to describe the
nature of such parties' as described in Art. 3. 02. Is one of a person with a right
of restoration or e.g. rem right a right to be made whole, which means you have to
have a damage I caused. So if you are not a damaged party e.g. I have not
damaged you. Literally you have no right to have me make you whole. The only
other possibility is that you want my consent, you want a contract of some form
with me for my eternal liability to owe you a debt our for fathers secured us from
as seen in such verbatim as the bar of involuntary servitude without just cause. I
emphatically do not consent to being liable as charged!!!
CODE OF CRIMINAL PROCEDURE CHAPTER 4. Art. 4.03. COURTS OF
APPEALS
The Courts of Appeals shall have appellate jurisdiction coextensive with the
limits of their respective districts in all criminal cases except those in which the
death penalty has been assessed.
Owens v. State, 851 S.W.2d 398, 401 (Tex.App.Fort Worth 1993, no pet.).
"[T]his court [of appeals does not have] the power to reform [a] prior conviction in
a post-conviction collateral attack. [O]nly the court of criminal appeals has such
power."
CODE OF CRIMINAL PROCEDURE CHAPTER 45. Art. 45.019.
REQUISITES OF COMPLAINT
(f) If the defendant does not object to a defendant. error. or irregularity of
form or substance in a charging instrument before the date on which the trial on
the merits commences, the defendant waives & forfeit's the right to object to the
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defect. error. or irregularity. Nothing in this article prohibits a trial court from
requiring that an objection to a charging instrument be made at an earlier time.
Bllilchez v. State, 138 S.W.3d 324, 330 (Tex.Crim.App.2004). "Art. 45.019(:0
means what it says, that a party can move to quash a charging instrument at any
time prior to the day on which the trial on the merits commences."
CODE OF CRIMINAL PROCEDURE CHAPTER 44 Art. 44.25. CASES
REMANDED
We. Therefore overrule Clewis & decide that the Jackson v. Virginialegal-
sufficiency standard is the only standard that reviewing court should apply in
determining whether the evidence is sufficient to support each element of a
criminal offense that the State is required to prove beyond a reasonable doubt. At
902- [T]he factual-sufficiency standard ... may be reformulated as follows:
'Considering all of the evidence in the light most favorable to the verdict, was a
jury rationally justified in finding guilt beyond a reasonable doubt."' But see
Johnson v. State, 419 S.W.3d 665, 671 n.2 (Tex.App.··-Houston [1st Dist.l 2013,
pet. Ref d) Brooks in light of history of Texas Constitution & jurisprudence).
Wooley v. State, 273 S.W.3d 260 (Tex.Crim.App.2008). See annotation
under Code of Criminal Procedure art. 36.19,.
CODE OF CRIMINAL PROCEDURE CHAPTER 45 Art. 45.032.
DIRECTED VERDICT
If, upon the trial of a case in a justice or municipal court, the state fails to
prove a prima facie case of the offense alleged in the complaint, the defendant is
entitled to a directed verdict of "not guilty."
CODE OF CRIMINAL PROCEDURE CHAPTER 45 Art. 45.043. EFFECT
OF APPEAL
When the defendant files the appeal bond required by law with the justice
or municipal court, all further proceedings in the case in the justice or municipal
court shall cease.
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I look a Burks v. State, 795 S.W.2d 913, 915 (Tex.App.Am.arillo 1990, pet.
Ref'd). & Owens v. State, 851 S.W.2d 398, 401 (Tex.App.Fort Worth 1993, no
pet.)., above & Art. 45.019. & Art. 44.25 are what I call the criminal codes' 'If un
objected its excepted contract clauses' a feudal right long since barred. Neither the
state nor any under color of her law have the right to try to presume any such
thing, such is even contrary to the principles of the law & thus unlawful when it is
done civilly.
My thoughts go to thinking about the fraud involved in the theft of my
dads home, they: 'Ellis county' in there prosecution of advalorem taxes in 2002 if
treated as a criminal mater such as a sovereign acting on a feudal right would act
to take my dads land away contrary to the principles of law. He argued just as I
am now such as I am not affiliated with you in such a manner to incur such
liability. We both argue that there had to be a waver of our rights e.g. an explicit
contract to incur such liability. The principle intent of the law is certainly not
served by enforcing a nonexistent contract contrary to the law as justice demands.
The law calls it involuntary servitude. This just gives me an idea for my next step
to go to the Austin criminal court of Appeals to see if Art. 4.04. Sec. 2. Below
entails the Austin criminal court of Appeals using its sound judicial discretion.
Even to this day our right to redress is paramount. & ~ue to the fraud
involve, etc... it would not be an abuse of its discretion if it were to see fit to grant
such as is sought
There are many forms of promulgation such as the blurring of the criminal
& civil law, since as with my criminal defense I am finding it impossible to see
how Waxahachie is not trying to prosecute civilly in a criminal forum & I find it
impossible to see how my dad was not prosecuted feudally .... criminally for
advalorem tax delinquency in a civil forum. In either case a fraudulent
application of feudal law: a fraud that has yet to be constitutionally redressed, &
Austin would most appropriately be using its sound judicial discretion, to put an
end to this affront to the law, & this 15 year war against my families rights.
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CODE OF CRIMINAL PROCEDURE CHAPTER 4. Art. 4.04. COURT OF
CRIMINAL APPEALS
Sec. 1. The Court of Criminal Appeals & each judge thereof shall have, & is
hereby given, the power & authority to grant & issue & cause the issuance of
writs of habeas corpus, &, in criminal law matters, the writs of mandamus,
procedendo, prohibition, & certiorari. The court & each judge thereof shall have,
& is hereby given, the power & authority to grant & issue & cause the issuance of
such other writs as may be necessary to protect its jurisdiction or enforce its
judgments.
Sec. 2. The Court of Criminal Appeals shall have, & is hereby given, final
appellate & review jurisdiction in criminal cases coextensive with the limits of the
state, & its determinations shall be final. The appeal of all cases in which the
death penalty has been assessed shall be to the Court of Criminal Appeals. In
addition, the Court of Criminal Appeals may, on its own motion, with or without a
petition for such discretionary review bring filed by one of the parties, review any
decision of a court of appeals in a criminal case. Discretionary review by the
Court of Criminal Appeals is not a matter of right, but of sound judicial discretion.
Ex parte Brand, 822 S.W.2d 636, 639 (Tex.Crim.App.1992). "[W]e now
decide that the writ [of common-law certiorari] shall not issue in any case in
which there is a right to appeal."
Homan v. Hughes, 708 S.W.2d 555, 557 (Tex.Crim.App.1986). "This Court
has jurisdiction to issue writs of mandamus ...." See also State ex rei. Curry v.
Davis, 689 S.W.2d 214, 215 (Tex.Crim.App.1984).
Below is just more to the point of error on the delay, of this county court at
law delaying me Justice.
CODE OF CRIMINAL PROCEDURE CHAPTER 4. Art. 4.08.
APPELLATE JURISDICTION OF COUNTY COURTS
The county courts shall have appellate jurisdiction in criminal cases of
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which justice courts & other inferior courts have original jurisdiction.
CODE OF CRIMINAL PROCEDURE CHAPTER 4. Art. 4.09. APPEALS
FROM INFERIOR COURT
If the jurisdiction of any county court has been transferred to the district
court or to a county court at law, then an appeal from justice or other inferior
court will lie to the court to which such appellate jurisdiction has been
transferred.
I contend the writ of prohibition I filed, should have been acted upon
without delay as required. There is no lawful right in the clerk or the court in
exercising the power of its appellate courts jurisdiction, in its duty to affect my
justice, yet its authority was at least in part or as a whole: It has been exercised
in a manner or degree not sanctioned by law.
No evidence obtained by an officer or other person in violation of the
Constitution or law of the State· of Texas, or of the Constitution or law of the
United States of America, shall be admitted in evidence against the accused on
the trial of any criminal case. & we know those officers testimony or my plead
facts are not evidence rising to the level appropriate to convict me on. So what is
the point of torturing me.
CODE OF CRIMINAL PROCEDURE CHAPTER 45 45. Art. 38.23.
EVIDENCE NOT TO BE USED
(a) No evidence obtained by an officer or other person in violation of the
Constitution or law of the State of Texas, or of the Constitution or law of the
United States of America, shall be admitted in evidence against the accused on
the trial of any criminal case.
If 44. 07., & 44. 17. Is the case even for such as my writ of prohibition than
this county court at law No. 2 needs to treat my writ as a plea to the jurisdiction
as it should have to began with. I also contend that 44.07 regarding right to
appeal, that an appeal is just a form of review, the right is the point of the
context, & thus this court' error is in its delay. Thus in principle with the laws:
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•
my rights shall not be abridged. Remember U.S. Const Art. 6 sec 2 the rule
•
regarding the nature & precedence of treaty law. Note: my rights are secured by
this powerful fact that my right must not be diminished in any way without my
express consent.
CODE OF CRIMINAL PROCEDURE CHAPTER 44 Art. 44.07. RIGHT OF
APPEAL NOT ABRIDGED
The right of appeal, as otherwise provided by law, shall in no wise be
abridged by any provision of this chapter.
CODE OF CRIMINAL PROCEDURE CHAPTER 44 Art. 44.17. APPEAL
TO COUNTY COURT, HOW CONDUCTED
In all appeals to a county _court from justice courts & municipal courts other
than municipal courts of record, the trial shall be de novo in the trial in the
county court, the same as if the prosecution had been originally commenced in
that court. An appeal to the county court from a municipal court of record may be
based only on errors reflected in the record.
GOVERNMENT CODE TITLE 2. JUDICIAL BRANCH CHAPTER 25.
STATUTORY COUNTY COURTS
GOVT §25.0001. (a) This subchapter applies to each statutory county court
in this state.
GOVT §25.0003. (a) A statutory county court has jurisdiction over all
causes & proceedings, civil & criminal, original & appellate, prescribed by law for
county courts.
GOVT §25.0003. (c) In addition to other jurisdiction provided by law, a
statutory county court exercising civil jurisdiction concurrent with the
constitutional jurisdiction of the county court has concurrent jurisdiction with the
district court in: ...... .
GOVT. §25.0004. POWERS & DUTIES
(a) A statutory county court or its judge may issue writs of injunction,
mandamus, sequestration, attac~ent, garnishment, certiorari, supersedes, & all
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• ••
writs necessary for the enforcement of the jurisdiction of the court. It may issue
writs of habeas corpus in cases where the offense charged is within the
jurisdiction of the court or any court of inferior jurisdiction in the county.
(b) A statutory county court or its judge may punish for contempt as
prescribed by general law.
(c) The judge of a statutory county court has all other powers, duties,
immunities, & privileges provided by law for county court judges.
GOVT. §21.001 INHERENT POWER & DUTY OF COURTS
(a) A court has all powers necessary for the exercise of its jurisdiction & the
enforcement of its lawful orders, including authority to issue the writs & orders
necessary or proper in aid of its jurisdiction.
I provide §2.3 below to reiterate my concern expressed at the pretrial
hearing wherein judge Jendrzey denied all motions. I ask if his order was meant
to affect the pleading. I asked several times because I was aware of §2.3 below &
judge Jendrzey said (sic) he was only ruling on the motions & not the pleadings.
Regardless I bring it up again to stop any fact finder from viewing the event
as concussively muting my pleadings, because he said it did not. At any rate just
in case a motion and a pleading are interchangeable you have my objection.
TEXAS RULES CML TRIALS: COMMENTARIES CHAPTER 1. B.
RULES OF PLEADING
§2. TYPES OF DOCUMENTS FILED WITH COURT
§2.3 Plea. "Plea" is an archaic term referring to certain defensive
pleadings. See Bland ISD v. Blue, 34 S.W.3d 547, 554 (Tex.2000). In most
instances, the TRCPs replaced the term "plea" with "motion." See, e.g., Toliver v.
Dallas Fort Worth Hosp. Council, 198 S.W.3d 444, 447 (Tex.App.···Dallas 2006, no
pet.)
TEXAS RULES CML TRIALS: COMMENTARIES CHAPTER Ch. 2.
Plaintiff's Lawsuit F. Choosing the Court---Jurisdiction
§ 4.2 3. Civil & criminal. County courts at law have jurisdiction over all
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• •
civil & criminal causes prescribed by law for constitutional county courts. Gov't
Code §25.0003(a); Weeks v. Hobson, 877 S.W.2d 478, 480 n.l (Tex.App. ···Houston
[1st Dist.1 1994, orig. proceeding).
TEXAS RULES OF APPEALS COMMENTARIES CHAPTER 12. B. §4.2 2.
No adequate appellate remedy.
Determining whether an appellate remedy is adequate involves balancing
"practical & prudential" considerations, such as the inevitability of reversal, the
impairment of important substantive & procedural rights, the opportunity to give
direction & guidance on the law that would otherwise be lost, & the waste of
judicial resources on a proceeding. See In re Essex, 450 S.W.3d at 528; In re
Team Rocket, L.P., 256 S.W.3d 257, 262 (Tex.2008); In re Prudential, 148 S.W.3d
at 136.
PRACTICE TIP
A party seeking mandamus reliefin which a remedy is technically available
by appeal should argue that the remedy is inadequate because of «practical &
prudential" considerations.
TEXAS RULES OF APPEALS COMMENTARIES CHAPTER 12. C.
§4.3 Tlireatened interference~
A writ of prohibition will not issue once the lower court completes the
challenged proceeding or act. Marquez, 885 S.W.2d at 457 n.l.
Supplemented Law I had gathered previously to brief on
1. Code of Criminal Procedure Ch. 4 Courts & Criminal Jurisdiction Art. 4.01:.
What courts have jurisdiction in criminal action jurisdiction:
a. The Court of Criminal Appeals.
b. Courts of Appeals.
c. The District Courts.
d. The Criminal District Courts··· Magistrates as noted at 5. Etc ..
e. The County Courts.
f. All County Courts at Law with Criminal Jurisdiction.
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Notice of Appeal. September 24th, 2015
2. Ex parte:
• •
George 913 S.W. 2d. 523, 526 (Tex. Crim. App. 1995).
Jurisdiction is something possessed by courts, not by judges, the judge is merely
an officer of the court like the lawyers, the bailiff & the court reporter. He is not
the court itself.
3. Fairfield v. State 610 S.W. 2d. 771, 779 (Tex. Crim. App. 1981).
Jurisdiction is comprised not of the place of the prosecution but of the power of the
court over the subject matter of the case, conveyed by statute or constitutional
provision coupled with personal jurisdiction over the accused.
4. Texas Rules Civil Appeals 2015 Chapter 10. Original Proceedings.
5. The general source of the Supreme Courts original-writ jurisdiction is GoYt
Code §22.002. See Tex. Cons~ art. 5, §3; Deloitte & Touche LLP v. Fourteenth Ct.
ofAppeals? 951 S.W.2d 394, 396 (Tex.1997).
6. The general source of the courts of appeals original writ jurisdiction is
Government Code §22.221. Same as above, Note Sec. , See Tex. Const. Art. 5 §6
7. Texas Rules of Appellate Procedure. Original Proceedings Ch. 10 A §1. To
determine the proper court for filing the petition see where to file §3.1 Note 10. A.
§5. Note
8. §1.1 Rule TRAP 52 Texas Courts Art. 5, §3 (Jurisdiction of the S. Ct.) Art.
5, §6 Original Jurisdiction of Courts of Appeals as prescribed by law'). Gov. Code
§22.002 (writ power of S. Ct.) §22.122 (Writ Power of Court of Appeals).
9. §1.2 Purpose A petition for original writ such as a writ of prohibition, is also
know as a petition for extraordinary relief, it seeks relief form the actions of a
certain institution, or individual, often the trial judge & is filed in the appellate
court, extraordinary relief may be sought in the form of a writ for mandamus,
prohibition, injunction, or habeas corpus.
10. Texas Rules Appeals Procedure. Chap. 10. A. §3. Filing Procedure §3.1
Where to file.
11. An original proceeding is commenced by filing a petition in the appropriate
appellant court, TRAP 52.1. The court in which the petition for the original writ
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is filed depends on whether a court of appeals or the supreme court has exclusive
jurisdiction or whether they have concurrent jurisdiction.
12. The primary bases for the courts original writ jurisdiction are found in the
Texas Constitution, & the Government Code. See, Tex. Const. Art. 5 §§3. 6.
Government Code §§22.002, 22.221, for other statutory basis of original
jurisdiction, see Baron, Mandamus 2010, at 14. 15.
13. If a court of appeals is unable to take immediate action-that is a panel
cannot be assembled within the time when action must be taken because members
of the court are ill, absent, or unavailable, the nearest court of appeals that is able
to take immediate action may do so. Gov't. Code 22.220 (b). See, TRAP 17.1,
17.2, see e.g.. In re. court, 415 S.W.3d 903, 904 (Tex. ·App. Texarkana, 2013
original proceeding).
14. Texas Rules Appellant Procedure Commentaries Chap. lOA §3.1 1. & 2 &
2.(1).
15. 1. When court has exclusive jurisdiction over an original proceeding. See,
Gov't Code §660, 2035(g): When a court has exclusive jurisdiction, the petition
must be brought in that court.
16. 2. When court has concurrent jurisdiction, Gov't Code 22.221. n: (1)
When a court of appeals & the supreme court have concurrent jurisdiction the
petition should generally be brought first in the court of appeals. TRAP 52.3(e).
The exception for filing first in the supreme court is compelling reason.
17. Ch. 10 A §3.2: How to file: For a discussion of filing methods is the
appellant court. See, How to file, Ch. 1. E §5.
18, Ch. 10 A §3.3: With whom to file. A party who is not e·filing should file the
document with the appropriate clerk. TRAP 9.2(a), 52.1: Further how to file; Ch.
l·E §4.
19. Ch. 10 A §3.4 TRAP' do not provide a specific deadline f~r filing an original
proceeding;
20. Ch. 10 A §3.5, what to file:
Page 31 of34
Notice of Appeal. September 24th, 2015
•
1. Required document:
•
(1). Petition for Writ.
(2). Appendix.
(3). Record.
21. General Rules for Writ of Prohibition. Texas Appeals Rules Ch. 10. C. §1.1.
TRAP 52 Tex. Const. Art. 5, §3. §6. Gov't. Code §22.221(a).
22. Tex. Rules Appeals Ch. 10. C.
23. §4.1 Issued by higher court to lower court, a writ of prohibition is issued by
court of superior jurisdiction t a court of inferior jurisdiction, Holloway v. Fifth Ct.
of Appeals, 767 S.W.2d 680, 682·83 (Tex.1989). The issuance of a writ of
prohibition is an exercise of a higher courts original jurisdiction, Wolf v. Young
275 S.W.2d. 741, 743. (Tex.App. San Antonio 1955, orig. proceedings).
24. §5.3 To prevent lower court from exercising jurisdiction when it has non. A
writ of prohibition may issue to prohibit a lower court from engaging in acts or
issuing orders from which the court has no jurisdictional authority, State Bar v.
Jefferson, 942 & S.W.2d 575, 576 (Tex.1997).
25. Texas Rules Appeals Ch. 1.E.
§4 With whom to file.
§4.2 Paper filing. TRAP 9.2(c)(1), (c)(3). Documents may be filed by
presenting them to the court clerk or a justice on the court. TRAP 9.2(a) §4.2. 1.
'
Clerk appellate documents generally should be presented to the court clerk for
filing. TRAP 9.2(a)(1). Parties may communicate with the appellate court about
a case only through the clerk.
26. A document is considered filed when it reaches the court, see Stokes v.
Aberdeen Ins, 917 S.W.2d. 267. 268(Tex.1996). Mail document to proper court
address controls over mailing documents proper clerk within court.
27. Texas Rules of Appellate Procedure.
TRAP 32. DOCKETING STATEMENT
32.2 Criminal Cases. Upon perfecting the appeal in a criminal case, the
Page 32 of34
Notice of Appeal. September 24th, 2015
• •
appellant must file in the appellate court a docketing statement that includes the
following information:
29. TRAP 52 Original Proceedings. Section Three Original Proceedings in the
supreme court & the courts of appeals. TRAP
30. TRAP 52.1 Commencement. An original appellant proceeding seeking
extraordinary ·relief such as a Writ of Habeas Corpus, Mandamus, Prohibition,
Injunction, or Quo Warranto is commenced by filing a petition with the clerk of
the appropriate appellant court.
31. No state may convert a right into a privilege & require a license or fee for
the exercise of that right! See Murdock v. Pennsylvania, 319 US. 105.
32. If a STATE does erroneously require a license or fee for exercise of that
right, the citizen may ignore the license & or fee & exercise the right with total
impunity! See Shuttles Worth v. Birmingham 373 US. 262.
33. You cannot be punished for the exercise of a constitutional right! See Miller
v. United States 230 F 2nd 486.
34. You have a perfect defense to the element of willfulness if you rely on the
advice of counsel or upon a decision of the United States Supreme Court as a
defense. See U.S. v. Bishop, 412 U.S. 346.
35. The constitution is required to be interpreted in favor of you "the citizen"
beneficiary for the protection of your rights & property. See Brars v. United
States 273 U.S. 28 & 16th AM Juris Prudence 2nd Constitution Section# 97.
36. The U.S. Supreme Court has held that it is a violation of due process clause
of the 14th Amendment to shift the burden of proof in a criminal case to the
Petitioner. See Lowry v. State 692 S.W.2d 86. 87 Tex Crim App 1985.
37. It is reversible error for the trial court, over the objection of the state to fail
to charge upon the presumption of innocence. See Garcia v. State 634 S.W.2d
888, 893 (Tex App. San Antonio 1982, no pet.).
38. The Texas Court of Criminal Appeals: " This court has held that there is no
such license known to Texas Law as a driver license": Frank John Gallos v. State,
Page 33 of34
Notice of Appeal. September 24th, 2015
•
167 Tex. Crim. 375, 320 S.W.2d 360.
•
39. The Texas Court of Criminal Appeals: An information charging the driver
of a motor vehicle upon a public highway without a drivers license charges no
offense as there is no such drivers license known to the law: Keith Brooks v. State.
40. The "RIGHT" to travel is part of the liberty of which the citizen cannot be
deprived without due process of the law under the Amendment. See: Kent v.
Dulles, 357 U.S. 116. 125 U.S. Supreme Court.
41. In Hassell v. State 149 Tex. Crim 333, 194 S.W.2d 400, an information
alleging that the Petitioner operated a motor vehicle upon a public highway
without a drivers license was insufficient to charge an offense since a drives
license is not known to the law.
42. In Barder v. State, 149 Tex. Crim 18, 191 S.W.2d 879, a complaint
charging the operation of an automobile & failure to display an operators license
on demand of a peace officer, was held insufficient to charge offense in the absence
of an allegation that accused was on the date of the alleged offense, a licensee. I
had this in my pleadings, I figured an allegation could not strictly exist if it was
out of context with the principle intent of our· founding law thus I still don't see
how this case ot Barder can or ·could in essence be used against me.
Relief Sought .
Please terminate the criminal action for lack of jurisdiction, to grant the
judgments sought in the name of the state, by the Waxahachie municipality .
Word count: there are about 11056 words here in.
As an interested party, Non-attorney, Witness, Man & Living Spirit Expressly
Reserving All Liberties.
P``nret: bofSeptember 2o15, by Petitioner:
Frederick-William: Van Hom
2334 S. Hwy. 77
Waxahachie, Texas 75165
Ph. No. 972 937 6059
Page 34 of34
Notice of Appeal. September 24th, 2015
• •
Docket No. WRIT 1001
. Re: Cause No: E0004327
STATE OF TEXAS: § IN THE ELLIS COUNTY
§
PLAINTIFF § COURT AT LAW No. 2
§
vs. § 109 SOUTH JACKSON St.
§
Frederick-WiJJiam: Van Hom § WAXAHACHIE, TEXAS
§
Appellant § 75168
CERTIFICATION OF SERVICE
1. I Relater Frederick-Wi11iam: Van Horn, hereinafter referred to as Affiant,
being of majority in age, competent to testify, as self realized entity, free man
upon the land, my yes be yes, my no be no, do state that the truths & facts herein
are of first· hand personal knowledge, true, correct, complete, certain, not
misleading, under penalty of perjury, & in accordance with. Title 28 USC 1746 &
applicable laws of the State of Texas so help me YBVH, &:
· 2. That, Affiant on ·or about September 24~ , 2015, produced the attached
notice of appeal, tO be filed/served in regards to, Doc. No. E0004327 regarding said
cause this day in the Ellis County Court at Law No. 2 Clerks Office, Waxahachie,
Texas 75168, &:
3. That, Affiant on or about this September 24th, 2015, Affiant served the
attached, "Aftiant' above liSted document, etc.", with attachments thereto,
hereinafter documents, by filling them also in person at the Waxahachie
municipal court at 401 South Rogers & or by placing said documents properly
enclosed in a sealed wrapper, postage prepaid, at the Waxahachie, or other, Texas
U.S. Post Offices, listed below:
The Current· filing entails Appellant' Notice of appeal, Pleading & volume 1 of 2
Page I of2
Appellants Certificate of Service September 24th, 2015
•
& volume 2 of 2 of the appellants record prepared by Appellant.
•
1. Court Of Criminal Appeals
P.O. Box 12308
Austin Texas 78711
Ph: 512 463 1551
2. The State of Texas
Texas Attorney General Office
209 W. 14th St., or
P.O. Box 12548
Austin, Texas 78711
3. County Court At Law No. 2
.via Cindy Polley Ellis County Clerks Office at
109 South Jackson St.
Waxahachie, Texas 75168·
4. Waxahachie Municipal Court
401 S. Rogers,
Waxahachie, Texas 75168
Hand delivered.
5. The Governor of the State of Texas
P.O. Box 12428
Austin, Texas 78711
6. Mayor of Waxahachie:
P.O. Box 757
Waxahachie, Texas 75168
7. State Commission on Judicial Conduct
P.O. Box 12265
Austin, Texas 78711
Further Affiant saith naught.
As an interested party, Non-attorney, Witness, Man & Living Spirit Expressly
Reserving All Liberties.
Pr are. & 8 bmitt d ov~ ``her 2015, by Affiant:
Frederick-William: Van Hom
2334 S. Hwy. 77
Waxahachie, Texas 75165
Ph. No. 972 937 6059
Page2 of2
Appellants Certificate of Service September 24th, 2015