Childress, Jason ( 2015 )

APPENDIX
TAB A
EMERGENCY RELIEF REQUESTED
No.
IN THE COURT OF
CRIMINAL APPEALS, TEXAS
IN RE JASON CHILDRESS,
PETITIONER
PETITON FOR WRIT OF HABEAS CORPUS
On Petition For A Writ Of Habeas Corpus
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
Petitioner, Jason Childress, certifies that the following is a complete list of the names and
addresses of all parties.
Petitioner: Jason Childress
Sui Juris in Trial Court,
9141 Gristmill Ct.
Fort Worth, Texas
Respondent: Charles A. Stephens II
County Court At Law #2
Comal County Courthouse Annex
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..................................................................................................... ix
STATEMENT OF JURISDICTION............................................................................................. ix
ISSUES PRESENTED................................................................................................................. ix
STATEMENT OF FACTS............................................................................................................. 1
ARGUMENT................................................................................................................................. 2
HABEAS RELIEF IS PROPER........................................................................................ 2
I. POWER TO RESTRAIN................................................................................................... 2
II. MANNER OF RESTRAINT............................................................................................. 3
III. ISSUES THAT BAR PROSECUTION AND CONVICTION.......................................... 9
A. Sec. 38.02 IS INAPPLICABLE UNDER THE CIRCUMSTANCES......................... 9
B. WITNESSES DISQUALIFIED................................................................................. 12
REQUEST FOR RELIEF............................................................................................................. 14
VERIFICATION.......................................................................................................................... 15
CERTIFICATE OF SERVICE..................................................................................................... 16
APPENDICES …......................................................................................................................... 17
(Appendix is separate, incorporated herein in its entirety for all purposes, and is being used as an
Appendix for this Petition for Writ of Hebeas Corpus and Petition for Writ of Mandamus)
iii
INDEX OF AUTHORITIES
Legal Maxims & Doctrines
Doctrine of Acquiescence.............................................................................................................. 3
Ejusdem Generis.......................................................................................................................... 11
Expressio unius est exclusio alterius............................................................................................ 11
Jus ex injuria non oritur................................................................................................................ 14
Lex citius tolerare vult privatum damnum quam publicum malum............................................. 14
Nemo punitur pro alieno delicto.............................................................................................. 7, 14
Noscitur a Sociis.......................................................................................................................... 11
Nullus commodum capere potest de injuri su propri............................................................... 8, 14
Ubicunque est injuria, ibi damnum sequitur............................................................................ 8, 14
Qui non negat, fatetur..................................................................................................................... 3
Legal Encyclopedia
Corpus Juris Secundum,
2d Vol. 7 section 25.......................................................................................................... 13
Federal Cases
Armstrong v. Manzo,
380 U.S. 545 (1965)........................................................................................................... 8
Central Pacific Railway Co. v. Alameda County,
284 U.S. 463 (1932)........................................................................................................... 4
Conley v. Gibson,
355 U.S. 41 at 48 (1957)............................................................................................ 13, 14
Davis v. Wechler,
263 U.S. 22....................................................................................................................... 13
Georgia v. South Carolina,
iv
497 U.S. 376 (1990)........................................................................................................... 4
Goldsmith v. U. S.,
C.C.A.N.Y., 42 F.2d 133.................................................................................................. 11
Grannis v. Ordean,
234 U.S. 385, 394............................................................................................................... 9
Haines v Kerner,
404 U.S. 519 (1972)......................................................................................................... 13
In re Eagle Bus Mfg.,
62 F.3d 730, 735 (5th Cir. 1995)....................................................................................... 7
In re Gault,
387 U.S. 1 (1967)............................................................................................................... 8
Jenkins v. McKeithen,
395 U.S. 411, 421 (1959)................................................................................................. 13
Maty v. Grasselli Chemical Co.,
303 U.S. 197 (1938)......................................................................................................... 13
Medical Center, Inc.,
485 U.S. 80 (1988)............................................................................................................. 9
Mullane v. Central Hanover Bank & Trust Co.,
339 U.S. 306, 314 (1950)................................................................................................... 8
NAACP v. Alabama,
375 U.S. 449..................................................................................................................... 13
Peralta v. Heights Medical Center, Inc.,
485 U.S. 80 (1988)............................................................................................................. 9
Picking v. Pennsylvania Railway,
151 F.2d 240, Third Circuit Court of Appeals................................................................. 13
Plaskey v. CIA,
953 F.2nd 25..................................................................................................................... 13
Puckett v. Cox,
456 F.2d 233 (1972) (6th Cir. USCA)............................................................................. 13
v
Robinson v. Hanrahan,
490 U.S. 38 (1972)............................................................................................................. 7
Stromberb v. California,
283 U.S. 359..................................................................................................................... 13
State Cases
Aleksich v. Industrial Accident Fund,
116 Mont. 69, 151 P.2d 1016............................................................................................ 11
Browning v. Placke,
698 S.W.2d. 362 (Tex. 1985) (orig. proceeding).............................................................. 10
Bruneio v. Bruneio,
890 S.W.2d 150, 155 (Tex. Civ. App. 1994, no writ)......................................................... 6
Burgin v. Forbes,
293 Ky. 456, 169 S.W.2d 321.......................................................................................... 11
Cliff v. Huggins,
724 S.W.2d 778, 780 (Tex.1987)................................................................................... 6, 7
DeLeon v, Periman,
530 S.W.2d 174 (Tex. Civ. App. 1975).............................................................................. 4
Delgado v. Hernandez,
951 S.W.2d 97, 99 (Tex. Civ. App. 1997, no writ)...........................................................
Dunham v. State,
140 Fla. 754, 192 So. 324, 325, 326................................................................................ 11
Ex parte Gordon,
584 S.W.2d. 686, 688 (Tex. 1979)..................................................................................... 5
Ex parte Smith,
178 S.W.3d 797 (Tex. Crim. App. 2005)............................................................................ 3
Fazio v. Pittsburgh Rys. Co.,
321 Pa. 7, 182 A. 696....................................................................................................... 11
Hidalgo County Water Improvement District No.2 v. Blalock,
301 S.W.2d 593 (1957)...................................................................................................... 4
vi
In re Aguilera,
37 S.W.3d. 43, 47 (Tex. Civ. App. 2000, no pet.).............................................................. 5
IN RE BOURG,
Tex. Civ. App. (2008)......................................................................................................... 5
In re Castro,
998 S.W.2d. 925, 927 (Tex.Civ. App. 1999. no pet.)......................................................... 5
Little v. Town of Conway,
171 S.C. 27, 170 S.E. 447................................................................................................ 11
Louis Pizitz Dry Goods Co. v. Fidelity & Deposit Co. of Maryland,
223 Ala. 385, 136 So. 800, 801........................................................................................ 11
Mapco, Inc. v. Forrest,
795 S.W.2d 700 (Tex. 1990 orig. proceeding).................................................................. 9
Morecock v. Hood,
202 N.C. 321, 162 S.E. 730.............................................................................................. 11
Newblock v. Bowles,
170 Oki. 487, 40 P.2d 1097.............................................................................................. 11
People v. One 1941 Ford 8 Stake Truck, Engine No. 99T370053, License No. P.8410, Cal.,
159 P.2d 641..................................................................................................................... 12
Platt v. Platt,
991 S.W.2d. 481 (Tex. Civ. App. 1999)......................................................................... 5, 6
Rozsa v. Jenkinson,
754 S.W.2d. 507, (Tex. Civ. App. 1988)............................................................................ 7
Sanchez v. Hester,
911 S.W.2d. 173 – Tex. Civ. App. (1995).................................................................... 9, 10
Saslaw v. Weiss,
133 Ohio St. 496, 14 N.E.2d 930...................................................................................... 11
State v. Owens,
907 S.W.2d. 484 (Tex. 1995) (per curiam)....................................................................... 10
State v. Western Union Telegraph Co.,
196 Ala. 570, 72 So. 99, 100............................................................................................ 11
vii
Thomas v. Miller,
906 S.W.2d. 260 (Tex.App.-Texarkana 1995) (orig. proceeding)................................... 10
Thomas v. Ray,
889 S.W.2d 237, 238 (Tex.1994)....................................................................................... 6
Withrow v. Schou,
13 S.W.3d. 37 (Tex. Civ. App. 1999)................................................................................. 7
State Constitution and Rules
Texas Code of Criminal Procedure,
Art. 4.04............................................................................................................................. x
Texas Code of Criminal Procedure,
Art. 11.01........................................................................................................................... x
Texas Code of Criminal Procedure
Art. 11.05........................................................................................................................... x
Texas Code of Criminal Procedure,
Art. 14.01......................................................................................................................... 12
Texas Code of Criminal Procedure,
Art. 14.03......................................................................................................................... 12
Texas Constitution
Art. V, Sec. V (c)................................................................................................................ x
Texas Penal Code,
Sec. 1.07 (a) (38).............................................................................................................. 11
Texas Penal Code,
Sec. 38.01 (5)................................................................................................................... 12
Texas Penal Code,
Sec. 38.02 (a) (d) (1)...................................................................................... 10, 11, 12, 13
viii
STATEMENT OF THE CASE
Underlying Proceeding:
A criminal action brought against Petitioner 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, Comal County Court At Law 2, of COMAL COUNTY, TEXAS.
Respondent's Action For Which Petitioner Seeks Relief:
Charles A. Stephens II, entered an order instructing the clerk of the Comal County Court
At Law 2 to issues a capias warrant, which has been issued, for Petitioner in absence of Due
Process, unconstitutionally restraining him.
Prior Petitions:
This is an Original Proceeding.
STATEMENT OF JURISDICTION
This court, pursuant to the Texas Constitution Art. V, Sec. V (c) and the Texas Code of
Criminal Procedure, Ch. 4, Art. 4.04 and Ch. 11., Art. 11.01 and 11.05 has jurisdiction to
consider and grant this Petition and to issue a Writ of Habeas Corpus.
ISSUES PRESENTED
1. Does the trial court have power to restrain Petitioner? (No)
2. Has the manner of restraint of Petitioner occurred in absence of Due Process? (Yes)
3. Are there issue which bar prosecution and conviction of Petitioner for the alleged
criminal charge against him? (Yes)
ix
STATEMENT OF FACTS
On September 4, 2014, Petitioner was unlawfully arrested, unlawful searched and had his
property seized unlawfully by officers of/for the NEW BRAUNFELS POLICE DEPARTMENT
(NBPD).
On September 12, 2014, Petitioner was coerced into signing a “PR BOND” (Apx. Tab B)
displaying an incorrect address for Petitioner. Petitioner was coerced in that the jailer whom
presented the “PR BOND” threatened to leave Petitioner in jail for another two weeks if he
refused to sign. Petitioner signed the “PR BOND” in order to expedite his release from his
unlawful imprisonment, as Petitioner 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), Petitioner informed the trial court that it
had an incorrect address for Petitioner on file and provided it with both Petitioner'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, Petitioner began checking the online records for the trial court
because he had received no correspondences or notices of hearings. On that same day, Petitioner
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)” (Apx. Tab E) and a
“NOTICE RETURNED” (Notice) (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. Petitioner further discovered than an
“AFFIDAVIT/FAILURE TO APPEAR” (Apx. Tab G), an “ORDER FOR ARREST-FAILURE
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TO APPEAR” (Order) (Apx. Tab H) and a “CAPIAS-FAILURE TO APPEAR” (Capias) (Apx.
Tab I) had also been filed into the trial court on February 20, 2015, February 26, 2015, and
March 2, 2015, respectively.
ARGUMENT
“A [petitioner] may use a pretrial writ of habeas corpus only in very limited
circumstances. First, the accused may challenge the State's power to restrain him
at all. Second, the accused may challenge the manner of his pretrial restraint [].
Third, the accused may raise certain issues which, if meritorious, would bar
prosecution or conviction. Ex parte Smith, 178 S.W.3d 797 (2005).
I. POWER TO RESTRAIN
The trial court is without subject matter, personal, political or civil contractual
jurisdiction over the underlying cause to the instance case, therefore, is without power to restrain
Petitioner. The lack of the aforementioned jurisdictions are set forth, challenged, and explained
in further detailed in Petitioner's “AFFIDAVIT OF COUNTERCOMPLAINT,”
(Countercomplaint) (see Apx. Tab K) attached hereto and incorporated herein it its entirety for
all purposes. The lack of the aforementioned jurisdictions are set out and explained in detail
specifically in Sections IV. – VIII. of Petitioner's Countercomplaint (Apx. Tab K). Petitioner's
averments have been received by all involved and interested parties, evidenced by Return
Receipts (see Apx. Tab N, O, P, & Q) attached hereto and incorporated herein for all purposes
and said Receipts have been filed into the trial court's record. Petitioner's sworn averments within
his Countercomplaint are unchallenged, unrebutted and unrefutted, and pursuant to the Doctrine
of Acquiescence, silence by the involved and interested parties constitutes their agreement with
Petitioner's sworn averments.
Doctrine of Acquiescence
Under the Doctrine of Acquiescence as well as the Maxim in Law which states
In re Jason Childress Page 2 of 18
that “silence shows consent” 6 Barb. [N.Y.] 2B, 35. Qui non negat, fatetur and
“He who does not deny, agrees,” (Trayner, Maxim 503), the Appellee’s silence
constituted their agreement with the Appellants’ arbitration proposal terms and
conditions under the legal Doctrine of Tacit Procuration.
The common law doctrine of estoppel by acquiescence is applied when one party
gives legal notice to a second party of a fact or claim, and the second party fails to
challenge or refute that claim within a reasonable time. The second party is said to
have acquiesced to the claim, and is estopped from later challenging it, or making
a counterclaim. The doctrine is similar to, and often applied with, estoppel by
laches
This occurred in the second Georgia v. South Carolina1 case before the U.S.
Supreme Court in 1990, when it was ruled that Georgia could no longer make any
claim to an island in the Savannah River, despite the 1787 Treaty of Beaufort's
assignment to the contrary. The court said that the state had knowingly allowed
South Carolina to join the island as a peninsula to its own coast by dumping sand
from dredging, and to then levy property taxes on it for decades. Georgia thereby
lost the island-turned-peninsula by its own acquiescence, even though the treaty
had given it all of the islands in the river (see adverse possession
Silence is acquiescence (aka. silent acquiescence and acquiescence by silence) is a
related doctrine that can mean, and have the legal effect, that when confronted
with a wrong or an act that can be considered a tortuous act, where one’s silence
may mean that one accepts or permits such acts without protest or claim thereby
loses rights to a claim of any loss or damage.2
Further, pursuant to the Doctrine of Stare Decisis, Petitioner's “...unchallenged averments
are accepted as true.” DeLeon v. Periman, 530 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). Petitioner's averments that the trial court is without jurisdiction have been agreed to by
all involved and interested parties and are accepted as true under Texas Common Law. In
absence of the subject matter, personal, political and civil contractual jurisdiction, the trial court
is without power to restrain Petitioner in relation to the underlying case to the instant case.
II. MANNER OF RESTRAINT
1 Georgia v. South Carolina - 497 U.S. 376 (1990)
2 U.S. Supreme Court Central Pacific Railway Co. v. Alameda County, 284 U.S. 463 (1932)
In re Jason Childress Page 3 of 18
Even if the trial court had jurisdiction over the underlying cause to the instant case and
power to restrain Petitioner, the manner in which his restraint has taken place has clearly
manifested through a denial of due process, in that Petitioner was not provided notice of the
hearing from which his restraint stems from.
An Order (Apx. Tab H) for “FAILURE TO APPEAR” was issued by Respondent on
February 26, 2015. On March 2, 2015, the Clerk or a deputy therefor, of/for the trial court issued
a Capias (Apx. Tab I) for Petitioner. “Issuance of a capias is a sufficient restraint of liberty to
justify habeas corpus relief.” In re Aguilera, 37 S.W.3d. 43, 47 (Tex.App.-El Paso 2000, no pet.)
As of yet, Petitioner has not been taken taken into custody pursuant to Order and Capias.
“A habeas corpus petition is a collateral attack on a judgment, the purpose of which is not
to determine the final guilt or innocence of the [petitioner], but to ascertain whether the
[petitioner] has been [restrained] unlawfully. Ex parte Gordon, 584 S.W.2d. 686, 688 (Tex.
1979). The restraint of Petitioner by the trial court is unlawful due to the fact that the Order was
made and the Capias was issued in absence of due process. “A writ of habeas corpus will issue if
[] the court deprives the [petitioner] of liberty without due process of law.” In re Castro, 998
S.W.2d. 925, 927 (Tex.App.-Houston [1st Dist.] 1999. no pet.). A writ of habeas corpus is proper
and should issue due to the fact that Petitioner is being deprived of his liberty without due
process of law.
“A [petitioner] bears the burden of showing that []he is entitled to relief.” Turner,
177 S.W.3d at 288 (citing Occhipenti, 796 S.W.2d. At 808-09.)” IN RE BOURG,
Tex: Court of Appeals, 1st Dist. 2008.
The court administrator of/for the trial court erred by mailing the notice of the hearing
from which the Order and Capias stem to the wrong address even though the court had been
notified before the notice was sent, that the address it had on file was incorrect and had been
In re Jason Childress Page 4 of 18
provided with, and was in possession of, Petitioner's exact location and correct address. “[T]he
trial court erred when it [] failed to send notice of the hearing to [Petitioner's] address on file
with the court.” Platt v. Platt, 991 S.W.2d. 481 (1999).
Petitioner had notified the court via letter (see Apx. Tab C) sent on September 19, 2014,
which was received and filed into the trial court record on October 3, 2014, as a part of the
“MEMORANDUM (see Apx. Tab D) that the address it had on file (see Apx. Tab B and E) was
incorrect; that Petitioner had not lived at the incorrect address in a number of years; and, he
provided not only his current location– DALLAS COUNTY JAIL, but also the address to which
notice should be sent in order for him to receive it, if notice was not sent directly to the DALLAS
COUNTY JAIL.
“[T]the law presumes that a trial court will hear a case only after proper notice to the
parties. To rebut this presumption, [petitioner] has the burden to affirmatively show a lack of
notice by affidavit or other competent evidence.” Bruneio v. Bruneio, 890 S.W.2d 150, 155
(Tex.App.-Corpus Christi 1994, no writ). Petitioner has shown to the trial court, and now shows
this court, via affidavit (see Apx. Tab J, pg.5, #100. and Apx. Tab K, p.34 - 35, #77. - 78.) that
he was not provided notice of the hearing from which the Order and Capias stem. Further,
Petitioner provides this court with competent evidence (see Apx. Tab C & F) that he was not
provided notice of the hearing from which the Order and Capias stem.
“In the instant case, the record shows that notice of [the] hearing [] was mailed to the
wrong address. That a document was mailed creates a rebuttable presumption that it was
received.” Platt v. Platt, 991 S.W.2d 481 (1999) quoting Thomas v. Ray, 889 S.W.2d 237, 238
(Tex.1994). Similarly, in the underlying cause to the instance case, the trial court's record shows
that notice was mailed to the wrong address (see Apx. Tab C & F). “When [Petitioner] filed [his]
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affidavit stating that []he did not receive the notice, the presumption was rebutted.” (see Apx.
Tab K, p. 34 – 35, #77. – 78.) “The presumption of receipt is not evidence and vanishes when
opposing evidence is introduced showing that the notice was not received.” Cliff v. Huggins, 724
S.W.2d 778, 780 (Tex.1987).
“The error and invalidity of the trial court's judgment affirmatively appears on the
face of the record [see Apx. Tab D & F] in the that wrong address for [Petitioner]
is typed on the notice []. Additionally, the records shows that [the trial court] had
access to [Petitioner's] correct address [] [see Apx. Tab C]. Therefore, the notice
was not sent to [Petitioner's] “last known address. Rozsa v. Jenkinson, 754
S.W.2d. 507 (Tex.App.-San Antonio 1988)
“The [trial court] mailed notice of the pending [] proceeding, not to the jail
facility [or the address provided by Petitioner], but to [an incorrect] address []
listed in the records of the [trial court].” Robinson v. Hanrahan, 490 U.S. 38
(1972) “[T]he manner of notice did not comport with the requirements of the Due
Process Clause of the Fourteenth Amendment. (Id.) “The [trial court] knew that
[petitioner] was not at the address to which notice was mailed and, moreover,
knew also that [petitioner] could not get to that address since he [no longer lived
there]. Under these circumstances, it cannot be said the the [trial court] made any
effort to provide notice which was 'reasonably calculated” to apprise [petitioner]
of the pendency of the [] proceedings.” (Id.)
Either the Clerk or a deputy therefor, failed to correct the mistake in the court's files or
the court administrator intentionally sent notice to the wrong address.
“The notice was returned undelivered to the trial court on [or about January 27,
2015], with the notation “Return to Sender [Not Delivered As Addressed Unable
To Forward (see Apx. Tab F)]” Withrow v. Schou, 13 S.W.3d. 37 (Tex.App.-
Houston 1999). “[I]f [Petitioner] [had failed] to notify the clerk in writing of a
[correct] address, [] then there is no 'due process' argument...” (Id.) “Federal
courts have held in various contexts that mailing notice of settings by first-class
mail is constitutionally sufficient as long as the government acts reasonable under
the circumstances, even if the intended recipient of the notice never receives it.
See In re Eagle Bus Mfg., 62 F.3d 730, 735 (5th Cir. 1995)” (Id.) “There is
imposed 'a responsibility on the [party] to be notified to keep the court and parties
apprised of their correct and current address.'” [T]he record indicates [Petitioner]
notified the court of [the correct] address.” (Id.)
The trial court had been notified that the address it had on file (see Apx. Tab B) was
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incorrect and it was in fact notified and in possession of the correct address (see Apx. Tab C) to
which service was to be made, therefore, Petitioner cannot be faulted and restrained in his liberty
for the mistakes or wrongs of the clerk or deputy therefor, or court administrator; Nemo punitur
pro alieno delicto. “No one is to be punished for the crime or wrong of another.”; Nullus
commodum capere potest de injuri su propri. “No one shall take advantage of his own wrong.
Co. Litt. 148.”' Ubicunque est injuria, ibi damnum sequitur. Where ever there is a wrong, there
damages follow. 10 Co. 116.” Petitioner has been denied due process in that he was not provided
notice of the hearing from which the Order and Capias stem.
“It is clear that failure to give the petitioner notice of the pending proceedings
violates the most rudimentary demands of due process of law. Many controversies
have raged about the cryptic and abstract words of the Due Process Clause but
there can be no doubt that at a minimum they require the deprivation of life,
liberty, or property by adjudication be preceded by notice and opportunity for
hearing appropriate to the nature of the case. Mullane v. Central Hanover Tr. Co.,
339 U.S. 306, at 313.” Armstrong v. Manzo, 380 U.S. 5454 – Supreme Court
1965.
As has been stated and demonstrated by Petitioner herein, and the Appendices attached
hereto and incorporated herein, he has denied due process in that he was not given notice of the
hearing from which the Order and Capias stem. Further, even if Petitioner had received notice, it
does not set out the alleged misconduct with particularity specifically pertaining to the alleged
offense alleged to have been committed by Petitioner which made basis for his arrest and
creating an obligation to provide any information to the officers of/for the NBPD. In absence of
the alleged misconduct, even if Petitioner would have received the notice it would not have been
in compliance with due process requirements.
“Notice, to comply with due process requirements, must be given sufficiently in
advance of scheduled court proceedings so that reasonable opportunity to prepare
will be afforded, and it must 'set forth the alleged misconduct with particularity.' ”
In re Gault, 387 U.S. 1, Supreme Court 1967. Due process of law requires notice
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of the sort we have described – that is, notice which would be deemed
constitutionally adequate in a civil or criminal proceeding. It does not allow a
hearing to be held in which [] freedom [is] at stake without giving [] timely
notice, in advance of the hearing, of the specific issues that must be met. Nor, in
the circumstances of this case, can it reasonable be said that the requirement of
notice was waived. (Id.)
Petitioner was neither given notice, nor afforded opportunity to present objections to the
allegation(s) made against him. Petitioner cannot be expected to be able object to allegations not
made known to him.
“Service of process is the way in which the defendant gets notice of the claim
against him and its allegations. The Supreme Court has held that due process
requires “notice reasonably calculated, under the circumstances, to apprise the
interested parties of the pendency of the action and afford them the opportunity to
present their objections.” Mullane v. Central Hanover Bank & Trust Co., 339 U.S.
306, 314 (1950).
As a result of Petitioner not being provided notice of the hearing from which the Order
and Capias stem, the Order is constitutionally infirm, invalid and null and void, likewise is the
Capias. Further, a failure to set forth the alleged misconduct with particularity in said notice (see
Apx. Tab F), the Order and Capias are constitutionally infirm, invalid and null and void.
“'[U]nder our cases, a judgment entered without notice or service is
constitutionally infirm.' An elementary and fundamental requirement of due
process in any proceeding is notice reasonably calculated, under the
circumstances, to apprise the interested parties of the pendency of the action and
afford them the opportunity to present their objections.” Peralta v. Heights
Medical Center, Inc., 485 U.S. 80 (1988)); quoting Mullane v. Central Hanover
Bank & Trust Co. “Failure to give notice violates the most rudimentary demands
of due process” (Id.)
Petitioner was further denied due process in that he was denied the opportunity to be
heard, as a result of not being provided notice of the hearing from which the Order and Capias
stem. “A fundamental requirement of due process is the 'opportunity to be heard.” Grannis v.
Ordean, 234 U.S. 385, 394.
In re Jason Childress Page 8 of 18
[V]oid orders may be circumvented by collateral attack[]. Mapco, Inc. v. Forrest, 795
S.W.2d 700, 703 (Tex. 1990) (orig. proceeding).” Sanchez v. Hester, 911 S.W.2d. 173 – Tex:
Court of Appeals, 13th Dist. 1995. As stated supra, this petition is, inter alia, a collateral attack
on the Order and Capias, and same are void as a result of Petitioner being denied Due Process
resulting from a failure to provide notice and to set forth therein with particularity the alleged
misconduct, resulting in the court failing to secure personal jurisdiction over Petitioner for
purposes of the hearing from which the Order and Capias stem. “[T]he position adopted by the
Texas Supreme Court reflects the principle under Texas law that the orders of a court with no
jurisdiction over the parties or property are void.” See State v. Owens, 907 S.W.2d. 484, 485
(Tex. 1995) (per curiam); Thomas v. Miller, 906 S.W.2d. 260 (Tex.App.-Texarkana 1995) (orig.
proceeding); see also Browning v. Placke, 698 S.W.2d. 362, 363 (Tex. 1985) (orig. proceeding)
(comparing void and voidable judgments) Sanchez v. Hester, supra.
II. ISSUES THAT BAR PROSECTION AND CONVICTION
As stated and demonstrated supra, and by the Appendices attached hereto, and by the
silence of all involved and interested parties thereto, the trial court is without jurisdiction over
the underlying cause to the instant case. Without jurisdiction, the trial court is without power to
hear the underlying cause to the instant case and the prosecutor for the state and,or county,
ABIGAIL WHITAKER (Whitaker), is barred form prosecution and conviction of Petitioner for
the criminal allegation and cause against him. Even if the trial court had jurisdiction, the
allegation made against Petitioner is inapplicable thereto, under the circumstances.
A. Sec. 38.02. IS INAPPLICABLE UNDER THE CIRCUMSTANCES
T.P.C. Sec. 38.02. FAILURE TO IDENTIFY.
(a) A “person” commits an offense if he intentionally refuses to give his name,
In re Jason Childress Page 9 of 18
residence address, or date of birth to a peace officer who has lawfully arrested the
“person” and requested the information.
(d) If it is shown on the trial of an offense under this section that the defendant
was a “fugitive from justice” at the time of the offense, the offense is:
(1) a Class B misdemeanor if the offense is committed under Subsection
(a); or
T.P.C. Sec. 1.07. DEFINITIONS. (a) In this code:
(38) "Person" means an individual, corporation, or association.
The legal term “Person” falls under the following Doctrines of Statutory Interpretation
used by both the federal congress and state legislatures in drafting legislation, as well as the
federal and state judiciary departments to interpret legislation passed into law by the federal
congress and state legislatures:
Ejusdem Generis: Of the same kind, class, or nature. In the construction of laws,
wills, and other instruments, the "ejusdem generis rule" is, that where general
words follow an enumeration of persons or things, by words of a particular and
specific meaning, such general words are not to be construed in their widest
extent, but are to be held as applying only to persons or things of the same general
kind or class as those specifically mentioned. Black, Interp. of Laws, 141;
Goldsmith v. U. S., C.C.A.N.Y., 42 F.2d 133, 137; Aleksich v. Industrial Accident
Fund, 116 Mont. 69, 151 P.2d 1016, 1021. The rule, however, does not necessarily
require that the general provision be limited in its scope to the identical things
specifically named. Nor does it apply when the context manifests a contrary
intention. The maxim "ejusdem generis," is only an illustration of the broader
maxim, "noscitur a sod's." State v. Western Union Telegraph Co., 196 Ala. 570, 72
So. 99, 100. Black's Law, 4th Ed.
Noscitur a Sociis: It is known from its associates. 1 Vent. 225. The meaning of a
word is or may be known from the accompanying words. 3 Term R. 87; Broom,
Max. 588. Morecock v. Hood, 202 N.C. 321, 162 S.E. 730, 731; Louis Pizitz Dry
Goods Co. v. Fidelity & Deposit Co. of Maryland, 223 Ala. 385, 136 So. 800,
801. The doctrine means that general and specific words are associated with and
take color from each other, restricting general words to sense analogous to less
general. Dunham v. State, 140 Fla. 754, 192 So. 324, 325, 326. Black's Law, 4th
Ed.
Expressio unius est exclusio alterius: Expression of one thing is the exclusion of
another. Co.Litt. 210a; Burgin v. Forbes, 293 Ky. 456, 169 S.W.2d 321, 325;
Newblock v. Bowles, 170 Oki. 487, 40 P.2d 1097, 1100. Mention of one thing
In re Jason Childress Page 10 of 18
implies exclusion of another. Fazio v. Pittsburgh Rys. Co., 321 Pa. 7, 182 A. 696,
698; Saslaw v. Weiss, 133 Ohio St. 496, 14 N.E.2d 930, 932. When certain
persons or things are specified, in a law, contract, or will, an intention to exclude
all others from its operation may be inferred. Little v. Town of Conway, 171 S.C.
27, 170 S.E. 447, 448. Under this maxim, if statute specifies one exception to a
general rule or assumes to specify the effects of a certain provision, other
exceptions or effects are excluded, People v. One 1941 Ford 8 Stake Truck,
Engine No. 99T370053, License No. P.8410, Cal., 159 P.2d 641, 642. Black's
Law, 4th Ed.
Sec. 38.01. DEFINITIONS. In this chapter:
(5) "Fugitive from justice" means a person for whom a valid arrest warrant has been
issued.
As stated in Petitioners Countercomplaint (see Apx. Tab K pg.73 - 76, #168. - 171.), he
is not a “Person,” rather, he is a member of the people. Petitioner is neither a “Person,” nor was
he a “Fugitive from justice” and there is no evidence to the contrary.
In order for Sec. 38.02 (a) to be applicable, a “person” must first be “lawfully arrested”
before the “person” is required to “give his name, residence address, or date of birth.” Petitioner
is not a “person,” even if he is or was at the time, he was not lawfully arrested as he had not
committed an offense classed as a felony or as an offense against the public peace, or any other
offense, in the presence or within view of any of the officers (see Tex. C. Crim. Proc., Art. 14.01
& 14.03) of/for the NBPD involved in Petitioner's unlawful arrest. In fact, when the officers
of/for the NBPD arrived, Petitioner was being assaulted (see Apx. Tab J). Without committing
the aforementioned offenses in the presence or within view of those officers, Petitioner's arrest
was unlawful. Being that Petitioner had committed no offense and was unlawfully arrested, he
was not required to provide any identifying information contemplated within Sec. 38.02 to any of
the officers of/for the NBPD involved in his unlawful arrest, therefore, Sec. 38.02 is inapplicable
to Petitioner under the circumstances. Further, Whitaker cannot prove beyond a reasonable doubt
that the alleged offense Petitioner is accused of occurred while the officers of/for the NBPD were
In re Jason Childress Page 11 of 18
in the lawful discharge of their official duties. Considering all the evidence and lack thereof, it
follows that there is no proof that the officers were authorized to arrest Petitioner. Without such
evidence, the Whitaker cannot establish that the officers of/for the NBPD were lawfully
discharging their official duties. As there is no evidence showing Petitioner's arrest was lawful,
he had the right to refuse to provide any information to the officers of/for the NBPD involved in
his unlawful arrest. Accordingly, the conviction of Petitioner for the alleged offense is not
authorized by the evidence. The officers of/for the NBPD, as well as the prosecutor, would have
it believed that a “person,” or anyone for that matter, can be arrested without having committed
an offense, in absence of any warrant, and then be required to provide information to the
arresting officer(s). Such an event is not contemplated or condoned by Sec. 38.02.
In order for Sec. 38.02 (d) (1) to be applicable, it must be “shown on the trial of an
offense under [] section [38.02] that the defendant was a “fugitive from justice” at the time of the
offense.” A “trial” has not shown the Petitioner was “a fugitive from justice.” Further, and again,
there is no mention or evidence of an offense which Petitioner had committed giving rise to or
providing cause for his arrest, nor is there any evidence Petitioner was a “fugitive from justice,”
in fact, the record is bereft of any warrant for Petitioner, save the Capias challenged herein and
hereby. Furthermore, even if Petitioner had committed some offense and was lawfully arrested
by the officers of/for the NBPD, application of Sec. 38.02 (d) (1) would be premature in absence
of a “trial” to show that Petitioner was “a fugitive from justice.”
B. WITNESSES DISQUALIFIED
As demonstrated supra, and within the documents attached hereto, the officers of/for the
NBPD are disqualified as witnesses due to noncompliance and misconduct, false arrest and
violations of procedural due process and due course of law, as well as dishonesty and deceit by
In re Jason Childress Page 12 of 18
claiming Petitioner had been lawfully arrested while either failing or intentionally neglecting to
state for what offense Petitioner had been arrested for, in addition to, illegal seizure of property,
to wit: a video recording camera used by Petitioner to record the events leading up to his false,
unlawful arrest, which evidences Petitioner was unlawfully arrested and a false report had been
made against Petitioner: Jus ex injuria non oritur. “A right cannot arise from a wrong.” 4 Bing.
639.; Nemo punitur pro alieno delicto. “No one is to be punished for the crime or wrong of
another.”; Nullus commodum capere potest de injuri su propri. “No one shall take advantage of
his own wrong. Co. Litt. 148.”; Ubicunque est injuria, ibi damnum sequitur. “Where ever there is
a wrong, there damages follow.” 10 Co. 116.; Lex citius tolerare vult privatum damnum quam
publicum malum. “The law would rather tolerate a private wrong than a public evil.” Co. Litt.
152; see also Apx. Tab K pg.15 - 18, #31.
Pursuant to the federal and state Rules of Evidence (see Apx. Tab K pg.36 - 37, #81. -
84.) and case law (see Apx. Tab K pg.37 - 39, #85. - 86.), Whitaker is not a competent and
qualified witness due a lack of personal knowledge and status as a prosecutor. Ida Paniagua is
not a competent or qualified witness pursuant to the federal and state Rules of Evidence due to a
lack of personal knowledge (see Apx. Tab K pg.36 - 37, #83.). Whitaker, is barred from
prosecution of the allegation and charge against Petitioner, due the trial court's lack of
jurisdiction, lack of evidence that Petitioner had committed any crime, inapplicability of Sec.
38.02 to Petitioner and a lack of any credible witnesses thereagainstr, and conviction of him for
the alleged offense is barred as a result of a bar to prosecution.
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
In re Jason Childress Page 13 of 18
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
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.
In re Jason Childress Page 14 of 18
REQUEST FOR RELIEF
For the reasons set forth herein, Petitioner, Jason Childress, requests that this Court grant
his Petition for Writ of Habeas Corpus and relieve Petitioner of his unlawful restraint resulting
from the void Capias.
Respectfully submitted,
/s/: Jason Childress
Jason Childress
9141 Gristmill Ct.
Fort Worth, Texas
jchildress1980@gmail.com
In re Jason Childress Page 15 of 18
VERIFICATION
Executed without the United States:
Pursuant to 28 U.S. Code § 1746 (a): I, Jason Truman Childress, Petitioner 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 16 of 18
CERTIFICAT E OF SERVICE
I, Jason Childress, Petitioner herein, hereby certify that a true and correct copy of this
Petition for Writ of Mandamus is being sent via email on this 3rd day of August , 2015 to
the following:
Charles A. Stephens
Comal County Court at Law 2
Comal County Courthouse Annex
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
Jason Childress
9141 Gristmill Ct.
Fort Worth, Texas
Submitting this 3rd day of August , 2015.
In re Jason Childress Page 17 of 18
NO.
In Re Jason Childress,
Petitioner
APPENDIX TO AND FOR PETITIONER'S PETITIONS
FOR WRIT OF HABEAS CORPUS AND WRIT OF MANDAMUS
List of Documents
1. “PR BOND”........................................................................................................ Tab B
2. Petitioner's Letter to Trial Court.............................................................................. Tab C
3. Trial Court Online Record Screenshot................................................................ Tab D
4. “COMPLAINT (OCA)”...................................................................................... Tab E
5. RETURNED NOTICE........................................................................................ Tab F
6. “AFFIDAVIT/FAILURE TO APPEAR”............................................................. Tab G
7. “ORDER FOR ARREST-FAILURE TO APPEAR”........................................... Tab H
8. “CAPIAS-FAILURE TO APPEAR”................................................................... Tab I
9. Affidavit for Countercomplaint........................................................................... Tab J
10. AFFIDAVIT OF COUNTERCOMPLAINT........................................................ Tab K
11. TABLE OF AUTHORITIES: POLICE REPORTS ARE HEARSAY................. Tab L
12. TABLE OF AUTHORITIES: LAW OF VOIDS IN TEXAS.............................. Tab M
13. Return Receipt: BOBBIE KOEPP....................................................................... Tab N
14. Return Receipt: Kevin M. Schoch....................................................................... Tab O
15. Return Receipt: TOM WIBERT........................................................................... Tab P
16. Return Receipt: ABIGAIL WHITAKER............................................................. Tab Q
17. DEMAND FOR DISMISSAL............................................................................. Tab R
In re Jason Childress Page 18 of 18
APPENDIX
TAB B
BAII, BoNDu Nr(' tsvf qL
F ILEE
Type of Bond:
SPN: lv
2lll $EP l6 ,Nfr#;ubstt
the STATE OF TEXAS. in the oenal sum 6f
'r4ru): -rs ?ooA
in addition thereto, we are bound for the payment of all fees and expenses that may be incurred by any peace officer in
) Dollars
re-arresting the said principal in the event any of the hereinafter stated conditions of this bond are violated for the payment
of which sum or sums will and truly to be made, we do bind ourselves, and each of us, our heirs, executors and administrators,
jointly and severally.
The condition of this bonci is that the Defendant has been charged with T
aJdry- offense and to secure
ure his release from cuslqdy_is into this S.bligation binding him to appear
custqdy is entering inio
before shown above, of (!-d)rfi A-4 .County,
City of Texas.
Now therefore, if the said Principal shall well and truly make his personal appearance before said Court lnstanter as
well as before any other court to which the same may be transferred and for any and all subsequent proceedings that may be
had relative to said charge in the court of criminal actions based on said charge, and there remain from day to day and term to
term of said courts, until discharge by due course of law, then and there to answer said accusation against him, this obligation
shall become void, othenvise to remain in fullforce and effect.
Taken and this zo ) y signed
Sheriff
Deputy
Surety
ADDRESS
Surety
ADDRESS
OATH OF SURETIES
STATE OF TEXAS
COUNTY OF
t7
We, each of us, rR_ Sooo
Do wear that we are worth in our own right,I-t least the sum of Dollars,
After deduction from our property all that which is exempt by Laws of the STATE OF TEXN from forced sale,
and after satisfying all encumbrances upon og{ property which are known to us;
and that we reside in the count v d (h/)US4 and have property in the STATE oF TExAs
Liable to execution worth:
The Said Sum of Dollars
The Said Sum of Dollars
Surety Surety
SIGNATURE
Subscribed to before me this
LE},IDAMC i(AY BEAIRUdATI,
gt.rtB 0f lEx$s
S,l,i-r:; Pul:ir;:,
y' rss
I -'ft r r::lissitn.ExPi
ffi.*&-t*
'uGE_lr_ 0Fll--
APPENDIX
TAB C
a,* r T C),i\drcss
tlqt Grrstcnil\ Ct,
-r.(, \ir(r"., T*
U,rl,h)
Ctert Cctr.t
Co*a\ 0fY Ccrrt c^+ Lau.:
3oos ' 5or {\ri\o.rtr, S\.
fv"> \s, 111 .I{ tjO
CIrL Co.,rt'
a, 1os... C).i\d,cs: herc\1 -,\a\< rhe 1.,\\ot.:ir6 "
r C,urr'cnrty b<.ffr h,{-U ot {ne \}'\\o" Counr \ a.'! :Tt:t:6."c*Y(
a' Po"rf uft\i\ t"*
t c\eos€
n a?t ;,+ ?t;,"'
h,
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\.arD, a tu-* b\os/A
1o,\, + \S Cornccre(ce,
$;- "i'q' P'r't'l " 'ia ^
to*r:y'
(s oS Cre oaa.,rs [i:{n.\'^oi ..1L0a1O' r' 1:ft.
fnr:orrdc\ -t h'orrt
[o Lrit tit cR il^;'VaUr.( \i*J, Trxc'", -[r"nk-
ftA t( af fta\ addr r':<, Iy'rrc( lgOq. Iou , I
soN thiUrcrs
IO BEATRUEAND
tiwbMr
BOBBIEKOEPP.I.
'
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2o14cR{SC
IN THE NAME AND BY AUTHORITY OF THE STATE OF TEMS
I, THE UNDERSIGNED AUTHORITY REPRESENTING THE OFFICE OF THE CRIMINAL DISTRICT ATTORNEY
OF COMAL COUNTY, IN SAID STATE, ON THE WRITTEN AFFIDAVIT OF IDA PANIAGUA, A COMPETENI AND
CREDIBLE PERSON HEREWITH FILED IN THE COUNTY COURT AT LAW DO PRESENT IN AND TO SAID COURT
THAT ON OR ABOUT THE 4TH DAY OF SEPTEMBER, 2014, AND BEFORE THE MAKING AND FILING OF THIS
INFORMATIOI'I, IN THE COUNTY OF COMAL AND THE STATE OF TEMS, JASON TRUIUAN CH!LDRE-S9, DID THEN
AND THERE, KNOWING THAT JAMES BELL WAS A PEACE OFFICER, INTENTIONALLY REFUSE TO GIVE HIS NAME,
DATE OF BIRTH, AND ADDRESS TO JAMES BELL, A PEACE OFFICER WHO HAD LAWFULLY ARRESTED THE
DEFENDANT AND REQUESTED THE INFORMATION, AND THE DEFENDANT WAS THEN AND THERE A FUGITIVE
FROM JUSTICE,
AGAINST THE PEACE AND DIGNITY OF THE STATE
JENNIFERA. THARP
COMAL COUNTY CRIMINAL DISTRICT ATTORNEY
FOR JENNIFER A. THARP BY:
ANT CRIMINAL DISTRICT A
07t1411980 1443028
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(
APPENDIX
TAB F
112712015 3:17 PM
GOPY
cAusE No,2014CR1548 F'LtD F,R RE',R, f rtED r0g Rr
il[fi Jilt.zl ffi
CHARGE: FAIL TO IDENTIFY FUGITIVE FROM JUSTICE
ft e9 ?Afi Jiril 27 ,il
THE STATE OF TEXAS
VS.
r;
4,
['1,t,;
COU.
4ry*
JASON TRUMAN CHILDRESS
461 CO ROAD 309
VALLEYVIEWTX 76272
NOTICE OF COURT APPEARANCE
BY ORDER OF THE COURT, notice is hereby given that the above entitled and numbered cause is set for
hearing at the Comal County Courthouse Annex 3'd Floor, 150 North Seguin Ave,, Suite 301, New
Braunfels, Texas 78130 on the February 03, 2015 8:30 AM The purpose of the hearing will
be for Arraignment.
1) FAILURE TO APPEAR BY THE DEFENDANT WILL RESULT IN HIS/HER BOND BEING FORFEITED AND
A WARRANT TSSUED FOR HtS/HER ARREST.
2l couRT cosTs oF APPRoX|MATELY $250.00 ARE DUE AT THE CONCLUSTON OF YOUR CASE -
CASH, MONEY ORDER OR CREDIT CARD;
3) DRESS APPROPRIATELY - SHORTS ARE NOTALLOWED tN THE COURTROOM. TANK TOPS,
HALTER TOPS, T-SHIRTS WITH ANY OBSCENE, VULGAR, DRUG OR ATCOHOL RELATED PICTURES,
PROMOTIONS OR WORDING, WILL NOT BE ALLOWED IN THE COURTROOM.
4) HATS, CAPS AND/oR BANDANNAS W|LL BE REMOVED FRoM THE HEAD.
s) MoBTLE PHONES MUST BE TURNED OFF OR 0N V|BRATE,
6) LOUD TALKTNG OR D|SRESPECIFUL BEHAVTOR t5 NOTTOLERATED rN THE COURTHOUSE.
CHILDREN ARE NOTALLOWED IN THE COURTROOM ATANY TIME.
7l ALL PTERCTNGS (EXCEPT FOR WOMEN',S EARRTNGS) W|LL BE REMOVED OR COVERED.
BY THE AUTHORITY OF THE COUNTY COURT AT IAW #2 JUDGE:
Comal County Court at Law f,2
Ashley Evans, Court Administrator
150 North Seguin Ave., 301
New Braunfels, Texas 78130
(830) 221-1180
ATTORNEY FOR DEFENDANT:
TOBEATRUEAND
6-qgB
iviT
6 (/lY'f
i8
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:
APPENDIX
TAB G
3nnV5 8:58AM
CAUSE NO.2014CR1548
THE STATE OF TEXAS
COUNTY COURT AT
vs. LAW OF
JASON TRUMAN CHILDBESS
coMAL COUNTY, TEXAS
AFFIDAVIT
This is to certify that l, PRESToN DAVIS ,THE counT BA|LIFF, in
and for comat
county, Texas on or after February 09, 201s, pursuant to tne oroe,
Court at Law in and for Comal County, Texas,'did distinctly, .t tn.
in,
of c;;;iy
ooor of Comat County
court at Law in comal county, Texas, callthe name of tne oetenoant, JASON
TRUMAN CHILDRESS, in the above styled and numbered cause,
and a reasonable
wgs given said Defendant after suih callwas made in which to
!im9 appear, veine saio
Defendant came not, but wholly made default.
SUBSCRIBED AND SWORN TO before me, the undersigned authority
by the said CSURT
BAILIFF, on February 20, 20.1S.
BOBBIE KOEpp, County Cterk
BOND DATE: September 12,ZO14
CASE FILED DATE:1211 5/201 4
SID NUMBER:
BEA'IRUEAND
t
APPENDIX
TAB H
3m2015 9:02AM
GAUSE NO.20{4CRts48
T}IE STATE OF TEXAS COUNTY COURT
VS AT LAW NO.z
JASON TRUMAN CHILDRESS GOMAL COUNTY, TEXAS
ORDER FOR ARRE$T
FAILURE TO APPEAR
on February 03, 2015, it appearing to the court that JASON TRUMAN
cHlLDREss, has FAILED To APPEAR, it is HEREBY ORDERED by the
Gourt that said Defendant, JAsoN TRUMAN GHILDRESS, be arrested
and detained in the Gomal Goungr Jail or other appropriate facitity of
detention until he can be brought before this Gourt.
The Glerk of this court is directed to issue a Gapias directing the
proper officer to arrest JAsoN TRUMAN GHltDREss, in accordance
with this order.
signed u,i" u,dd day or
t n, ,2&.
O
BoND AMoUNT, 3, SSS.Y GAsH oR sURETY oNLY
'
tBffi&'.t?f,:A'TRUEAND
APPENDIX
TAB I
3D12015 9:02 AM
CAUSE No.4!re81g4g
rHEsrArEoFrExAS
JASON TRUMAN CHILDRESS
ilL E C0PY IN THE COUNTY COURT AT
LAW OF
COMAL COUNTY, TEXAS
IlqSlqtq of Texas, To any peace Officer of the Stare of Texas,
t Greetings:
YOU ARE HEBEBY COMMANDED to take the body of
JASON TRUMAN CHTLDRESS
461 CO ROAD 30e
VALLEY VIEW TX 76272
if,found.in your county, and. him sglelv
!eep, or so provide that you have him before the
Honorable county court at Law of Ccjtrrtlt'county, at the courthouse of said county, in rhe city
of NEW BRAUNFELS, immediately then and there to
tn"-si"ie of rexas upon information
charging him with Vioration of promise to Appear on February
"n.*.r, oa, ior s for the charge ol
VIOLATION OF PROMISE TO APPEAF/ FAIL TO IDENTIFY
FUGITIVE FROM JUSTICE
a misdemeanor, filed in our said Court on December 15,
ZO14
Herein Fail Not, and make due retum ol this writ.
y'J}r::t;Fro"tBtE KoEPf:clerk of said county court, and the seat thereof on this rhe 2nd day
;Sz , County Clerk
s"$
!o:
a L): iZ.=
!{S
.j.f *:
)-".J
RIFF'S
----r:- day of
Received this writ on the
day of . zo.---_, and r executed the same on the
,'noov
,20-=--_, ov tat443 U.S. 47 (1979) and Koelander v. Lawson, 461 U.S.
352 (1983) was not required to provide his name or any form of identification.
71. Affiant began stating that Assailant had entered the home without consent and had
removed Affiant therefrom, and began attacking Affiant.
72. Affiant stated that when the officers arrived, they had a duty to prevent said attack and
not to aid therein.
73. Other unknown New Braunfels police officers began demanding Affiant to be a witness
against himself by providing his name and identification.
74. Affiant refused to be a witness against himself.
75. Affiant was threatened with being placed in jail if Affiant refused to be a witness against
himself by providing his name.
76. Affiant refused to be a witness against himself.
77. An unknown New Braunfels police officer placed shackles upon Affiant’s ankles and
placed Affiant in a New Braunfels police vehicle.
78. Affiant was transported directly to the Comal County jail by an unknown New Braunfels
police officer.
79. When Affiant arrived at Comal County jail, Affiant was threatened by jailers, thereof, to
withhold Affiant from the magistrate unless and until Affiant gave witness against
himself by providing his name.
80. Affiant refused to be a witness against himself.
81. Affiant was placed in a cell.
82. Affiant was awoken by being kicked by an unknown jailer who commanded Affiant to be
a witness against himself and proved Affiant’s name.
83. Affiant refused to be a witness against himself and was placed back into the cell.
84. Affiant was again awoken by being kicked by the same unknown jailer who again
commanded Affiant to be a witness against himself and provide Affiant’s name.
85. Affiant refused to be a witness against himself.
86. Affiant was again awoken by another unknown jailer who commanded Affiant to exit the
cell in order to be photographed and fingerprinted.
87. Affiant was taken into a room by the unknown jailer.
88. Affiant began stating that the New Braunfels police officers present at the home had
committed crimes against Affiant and that the unknown jailer was now aiding them and
was also committing the offense of THEFT OF IDENTITY by taking Affiant’s photo and
fingerprints without his consent and for no legal or lawful purpose, and only in order to
compel Affiant to be a witness against himself.
89. Affiant was physically threatened and placed back in the cell.
90. Affiant was again removed by the unknown jailer that had kicked and physically
threatened Affiant and took Affiant’s photograph and finger prints.
91. Affiant was commanded to sign his name on the fingerprint card.
92. Affiant signed the card under duress and through coercion and stated same by writing
“under D on C” upon and fingerprint card.
93. Affiant was brought before an unknown individual alleging to be magistrate.
94. The alleged magistrate informed Affiant of the bail set.
95. Affiant presented questions to the alleged magistrate.
Page 4 of 7
Affidavit for Countercomplaint
96. Alleged magistrate responded by preventing Affiant from being heard by commanding an
unknown jailer present to keep Affiant quiet.
97. Affiant was placed back in a cell.
98. Affiant was released on September 14, 2014 and transported to Dallas County.
99. Affiant is under current threat of being Maliciously Prosecuted by an unknown
“prosecutor” in an unknown County Court AT Law of and in, Comal County, Texas.
100. Threat of Prosecution of Affiant is Malicious as Affiant has received no Summons or
Service of Process, or any Process, or any proper or efficient Pleading.
101. Affiant has been harmed by the acts of Assailant, as well as, acts and omissions of the
New Braunfels Police Department officers, jailers of and for Comal County Jail and
unknown alleged magistrate.
Page 5 of 7
Alfidavit for Countercompleint
YERIFICATION
Executed without the United States:
I, Jason Truman Childress, do declare, certi$r, verift and state under penalty of pujury under the
laws of the United States of America that I arn a livirg mann of lawfirl age and conrpetent to
testi$, and that I have personal knowledge of the foregoing facts which are fiue and correct,
based upon my knowledge and belief, which knowledge and belief I believe to be true.
Pursuant to 28 U.S. Code $ 1746 (a)
Executed on this f.3.J day of IYlarcL of 2015.
Jason Childress
9141 Gristmilt Ct.
FortWorth, Texas
Page 6 of 7
Ailidavit for Countercomplaint
CERTIHCATE OF SERVICE
[, Jason Truman Childress, Sui Juris (not Pro Se), hereby certifr, under penalty of perjury, under
the laws of lhe United States of America, without the federal corporation, "United States", 28
U.S.C. $ 3002 (15), that I am at least 18 years of age, a Denizen to the United States of America,
and that I personally served the following document(s):
1. Affidavit for Countercomnlaint
2. AFFIDAVIT OF COUNTERCOMPLAINT
3. TABLE OF AUTHORITI4S: POLICE REPTORTS ARE IIEARSAY
4. TABLE OF AUTIIOBITIES: LAW OF VOIDS IN TEXAS
by placing one true and correct copy of said document(s) via Register Mail, Retum Receipt to
the following:
Kevin M. Schoch
3619 Hawthome Trl.
Rockwall, TX75032
*Notice to Principal is Notice to Agent;
Notice to Agent is Notice to Principal.*
Tom Wibert, Chief of Police,
Principal to & Respondeat
Superior for, NBPD Defendants
1488 South Seguin Avenue
New Braunfels, TX 78130
Abigail Lane Whitaker
Comal County Courthouse Annex
150 N. Seguin Ave., Ste. 307
Executed on this2jJ day of fVlarc[ of 2015.
z----
Jason Childress
9141 Gristmill Ct.
Fort Worth, Texas
PageT of7
APPENDIX
TAB K
AFFIDAVIT OF COUNTERCOMPLAINT
COUNTY COURT
AT LAW #2
COMAL COUNTY TEXAS
Jason Truman Childress, §
Plaintiff, §
§ Cause No. 2014CR1548
v. §
§
KEVIN M. SCHOCH, a.k.a., KEVIN § AFFIDAVIT OF
SHOCK § COUNTERCOMPLAINT
Defendant, §
and §
§
JAMES L. BELL, a.k.a, James L. Bell, §
§
Defendant, §
and §
§
JOSEPH R. ROBLES, a.k.a, Joseph R. §
Robles, §
Defendant, §
and §
§
§
JOHN M. MAHONEY, a.k.a, John M. §
Mahoney, §
Defendant, §
and §
§
BRIAN W. TURNER, a.k.a, Brian W. §
Turner, §
§
Defendant,
§
and
§
§
HECTOR G. PARRA, JR., a.k.a, Hector G.
§
Parra, Jr.,
§
Defendant, §
§
§
Page 1 of 89
AFFIDAVIT OF COUNTERCOMPLAINT
GARRISON D. HAYS, a.k.a, Garrison §
D. Hays §
§
Defendant,
§
and §
CHRISTOPHER M. SCOTT, a.k.a, §
Christopher M. Scott, §
§
Defendant, §
and §
§
Jane Does #1 - #15 §
As yet to be discovered; §
§
Defendant,
§
and §
John Does #1 - #15 §
§
As yet to be discovered; §
Defendant, §
ADMINISTRATIVE NOTICE
*63C Am. Jur. 2d., Public Officers and Employees, §247* “As expressed
otherwise, the powers delegated to a public officer are held in trust for the people
and are to be exercised in behalf of the government or of all citizens who may
need the intervention of the officer. [1]Furthermore, the view has been expressed
that all public officers, within whatever branch and whatever level of government,
and whatever be their private vocations, are trustees of the people, and
accordingly labor under every disability and prohibition imposed by law upon
trustees relative to the making of personal financial gain from a discharge of their
trusts. [2]That is, a public officer occupies a fiduciary relationship to the political
entity on whose behalf he or she serves. [3]and owes a fiduciary duty to the
public. [4]It has been said that the fiduciary responsibilities of a public officer
cannot be less than those of a private individual. [5]Furthermore, it has been
stated that any enterprise undertaken by the public official who tends to weaken
public confidence and undermine the sense of security for individual rights is
against public policy. Fraud in its elementary common law sense of deceit –and
this is one of the meanings that fraud bears [483 U.S. 372] in the statute (See,
United States v. Dial, 757 F.2d 163, 168 (7th Cir1985)), includes the deliberate
Page 2 of 89
AFFIDAVIT OF COUNTERCOMPLAINT
concealment of material information in a setting of fiduciary obligation. A public
official is a fiduciary toward the public, including, in the case of a judge, the
litigants who appear before him and if he deliberately conceals material
information from them, he is guilty of fraud. McNally v United States, 483 U.S.
350 (1987).
COMES NOW, Plaintiff, Jason Truman Childress, and hereby states the
following:
I. PRELIMINARY STATEMENT
I, Jason Truman Childress, hereafter “Childress,” am a living man of lawful age who is
competent to testify and state that I have first hand personal knowledge of the following facts:
II. PARTIES
1. All statements and allegations made supra, and in Childress's Affidavit for
Countercomplaint are herein incorporated in their entirety by reference.
2. Childress, at all times relevant herein, lived on Texas at 567 Avenue A., New Braunfels,
Texas. Childress is now living on Texas at 9141 Girstmill Ct., Fort Worth, Texas. Childress has
lived on Texas for 34 years.
3. Defendant, KEVIN M. SCHOCH, a.k.a., KEVIN SHOCK, hereafter, Schoch, at all times
relevant herein, is an ex-Dallas County Deputy Constable, fired in 2011 for committing the
offense Driving While Intoxicated, and is employed and, or contracted by CMMM
MANAGEMENT INC, a.k.a., d.b.a., DELTA BAIL BONDS. Schoch is also currently employed,
and,or contracted with, or by, E.J.R. AGENCY INC.; MJB GROUP; A CONSULTING,
SECURITY, & INVESTITGATIONS, LLC; OFF DUTY SERVICES, INC.; STRIKE FORCE
SECURITY; TACTICAL SYSTEMS NETWORK, LLC. Schoch's residential address is
presently unknown, however, it is believed to be at, and at which Service will be made, 3619
Page 3 of 89
AFFIDAVIT OF COUNTERCOMPLAINT
Hawthorne Trl., Rockwall, Texas 75032 and Schoch is being sued in his individual capacity and
official capacity.
4. Defendants, JAMES L. BELL, JOSPEH R. ROBLES, JOHN M. MAHONEY, BRIAN W.
TURNER, HECTOR G. PARRA, J.R., GARRISON D. HAYS, and CHRISTOPHER M. SCOTT,
hereafter, referred to as Bell, Robles, Mahoney, Turner, Parra, Hays, and Scott, and referred to
collectively as NBPD Defendants, at all times relevant herein, are Individual Persons employed
and,or contracted with the NEW BRAUNFELS POLICE DEPARTMENT, a private security
agency, subsidiary of NEW BRAUNFELS, CITY OF. NBPD Defendants work at 1488 South
Seguin Ave, New Braunfels, Comal County, Texas 78130 and are being sued in their individual
capacity and official capacity.
5. Defendants, Jane Doe #1 – #15, at all times relevant to this Complaint are employees,
agents, or private contractors of the NEW BRAUNFELS POLICE DEPARTMENT, or the
Municipal Corporation NEW BRAUNFELS, CITY OF, or are employees, agents, or private
contractors of the agency COMAL, COUNTY OF, or are employees, agents, or private
contractors of the corporation STATE OF, TEXAS. Jane Does 1- 10, will be further identified as
information becomes available. Jane Doe 1 – 10 is being sued in her individual and official
capacity.
6. Defendants, John Doe #1 – #15, at all times relevant to this Complaint are employees,
agents, or private contractors of the NEW BRAUNFELS POLICE DEPARTMENT, or the
Municipal Corporation NEW BRAUNFELS, CITY OF, or are employees, agents, or private
contractors of the agency COMAL, COUNTY OF, or are employees, agents, or private
Page 4 of 89
AFFIDAVIT OF COUNTERCOMPLAINT
contractors of the corporation STATE OF, TEXAS. John Does 1- 10, will be further identified as
information becomes available. John Doe 1 – 10 is being sued in his individual and official
capacity.
III. RESPONSE TO ALLEGATIONS
7. All statements and allegations made supra, and in Childress's Affidavit for
Countercomplaint are herein incorporated in their entirety by reference.
8. Childress denies any and all allegations made against him by Defendants and further
denies that this court has Personal, Political, or Subject-Matter Jurisdiction to hear matters in the
above referenced Cause, or to issue any Process, warrants or otherwise, or render any judgment
against Childress, in the above referenced Cause.
IV. COURT LACKS SUBJECT MATTER AND PERSONAL JURISDICTION
9. All statements and allegations made supra, and in Childress's Affidavit for
Countercomplaint are herein incorporated in their entirety by reference.
10. This court is, and has been since the onset, without subject matter and personal
jurisdiction and "There is no discretion to ignore that lack of jurisdiction." Joyce v. US, 474 F2d
215.
"a void judgment, order or decree may be attacked at any time or in any court,
either directly or collaterally.” Evans v. Corporate Services, 207 Ill.App.3d 297,
565 N.E.2d 724 (2nd Dist. 1990)
“A judgment or order is void where it is entered by a court which lacks
jurisdiction over the parties or the subject matter, or lacks inherent power to enter
the particular order or judgment, or where the order is procured by fraud...” (Id.)
"If the initial judgment was one which the trial court had no power to enter, that
judgment is void and may be attacked at any time in the same or any other court,
Page 5 of 89
AFFIDAVIT OF COUNTERCOMPLAINT
by the parties or by any other person who is affected thereby." Oak Park Nat.
Bank v. Peoples Gas Light & Coke Col, 46 Ill.App.2d 385, 197 N.E.2d 73, 77 (1st
Dist. 1964)
"A void judgment may be attacked at any time, either directly or collaterally." In
re Marriage of Macino, 236 Ill.App.3d 886 (2nd Dist. 1992)
"A void judgment is one entered by a court without jurisdiction of the parties or
the subject matter or that lacks "the inherent power to make or enter the particular
order involved... A void judgment may be attacked at any time, either directly or
collaterally” People v. Wade, 116 Ill. 2d 1, 506 N.E.2d 954 (1987)
"Courts are constituted by authority and they can not go beyond the power
delegated to them. If they act beyond that authority, and certainly in contravention
of it, their judgments and orders are regarded as nullities. They are 354*354 not
voidable, but simply void, and this even prior to reversal.” Vallely v. Northern
Fire & Marine Ins. Co., 254 U.S. 348, 41 S. Ct. 116 (1920)
“[a] court ha[s] no jurisdiction to proceed if the judgment it rendered was void for
the want of the due process of law required by the Fourteenth Amendment. If the
defendant had no such actual, legal notice [the] court was without jurisdiction;
[judgment] was void as wanting in due process of law.” Old Wayne Mut. L.
Assoc. v. McDonough, 204 U.S. 8, 27 S. Ct. 236 (1907)
“...[it is a] well-established rule that a void judgment may be attacked directly or
collaterally in any court at any time so long as the party is properly before the
court. That rule allows courts to protect their integrity, to guard against fraud, and
to prevent or correct the entry of judgments made, in fact, without authority.”
People ex rel. Brzica v. Village of Lake Barrington, 644 N.E.2d 66 (Ill.App. 2
Dist. 1994).
11. Jurisdiction is a prerequisite for a court to have official authority and power to decide
matters in cases, issue subpoenas, summons, warrants, orders and judgments, etc.. To decide a
case, a court must have a combination of subject (subjectam) and either personal (personam) or
territorial (locum) jurisdiction.
“A judgment rendered by a court without personal jurisdiction over the defendant
is void. It is a nullity. [A judgment shown to be void for lack of personal service
on the defendant is a nullity.]” Sramek v. Sramek, 17 Kan. App. 2d 573, 576-77,
Page 6 of 89
AFFIDAVIT OF COUNTERCOMPLAINT
840 P.2d 553 (1992), rev. denied 252 Kan. 1093 (1993).
"A universal principle as old as the law is that a proceedings of a court without
jurisdiction are a nullity and its judgment therein without effect either on person
or property." Norwood v. Renfield, 34 C 329; Ex parte Giambonini, 49 P. 732.
"Jurisdiction is fundamental and a judgment rendered by a court that does not
have jurisdiction to hear is void ab initio." In Re Application of Wyatt, 300 P. 132;
Re Cavitt, 118 P2d 846.
"Thus, where a judicial tribunal has no jurisdiction of the subject matter on which
it assumes to act, its proceedings are absolutely void in the fullest sense of the
term." Dillon v. Dillon, 187 P. 27.
12. Childress is now challenging this court's jurisdiction. (see, Joyce v. US, supra).
“The [state[ trial court, by reason of [defendant's] failure to exhaust [their]
administrative remedies, acquired no jurisdiction over the [their] claim. When it
clearly appears that the court lacks jurisdiction, the court ha[d] no authority to
reach the merits... the action should [have] be[en] dismissed for want of
jurisdiction." Melo v. US, 505 F2d 1026.
"Court must prove on the record, all jurisdiction facts related to the jurisdiction
asserted." Latana v. Hopper, 102 F.2d 188; Chicago v. New York, 37 F Supp. 150.
"Once challenged, jurisdiction cannot be assumed, it must be proved to exist."
Stuck v. Medical Examiners, 94 Ca 2d 751. 211 P2d 389.
"The burden shifts to the court to prove jurisdiction." Rosemond v. Lambert, 469
F2d 416.
"A court has no jurisdiction to determine its own jurisdiction, for a basic issue in
any case before a tribunal is its power to act, and a court must have the authority
to decide that question in the first instance." Rescue Army v. Municipal Court of
Los Angeles, 171 P2d 8; 331 U.S. 549, 91 L. ed. 1666, 67 S. Ct. 1409.
13. This court is, and has been since the onset, without jurisdiction as a result of actions by
the Defendants, and the magistrate.
A. NO REASON TO FEAR FROM CHILDRESS
Page 7 of 89
AFFIDAVIT OF COUNTERCOMPLAINT
14. All statements and allegations made supra, and in Childress's Affidavit for
Countercomplaint are herein incorporated in their entirety by reference.
15. Childress, at the time of arrest, gave neither Defendant Schoch, nor NBPD Defendants
any reason to fear for their safety from him. Childress made no attempts to escape or indicated
verbally or physically he would attempt to escape. A search, in absence of a Fourth (4th)
Amendment warrant, of Childress was made subsequent to arrest where no weapons were found;
Childress's hands and ankles were cuffed with no effort to resist; Childress did not offer any
verbal threat of physical resistance or retaliation. When directed to the police car, Childress
complied without physical resistance.
“But a constable cannot justify handcuffing a prisoner unless he has attempted to
escape, or unless it be necessary in order to prevent his doing so.” 51 L.R.A. 216.
“The handcuffing was utterly unlawful.” Osborn v. Veitch, Foster & Fin Eng Rep
317 (1858).
B. NO INTERVENING CIRCUMSTANCES NECESSITATING DELAY
16. All statements and allegations made supra, and in Childress's Affidavit for
Countercomplaint are herein incorporated in their entirety by reference.
17. There was no flood, storm, riot, or any other intervening circumstance to necessitate
NBPD Defendant's immediate attention, which would justify a delay in bringing Childress before
a magistrate. Childress did not observe NBPD Defendants, through the use of police radio or cell
phone, make any attempt to locate a magistrate for the purpose of securing jurisdiction to
continue to hold Childress.
“In endeavoring to take the arrested person before the magistrate, the officer must
expend all the effort that a highly cautious person would employ in the same
Page 8 of 89
AFFIDAVIT OF COUNTERCOMPLAINT
circumstances.” [FN85] Robinson v. Lovell, 238 S.W.2d 294 (Tex. Civ. App.
Galveston 1951), writ refused n.r.e.
18. NBPD Defendants should have exercised caution in this regard, as failure to do so could
lead to personal criminal and civil liability, and has led to the latter.
13 Am Jru Proof of Facts 3d, 21
“Without having been directly authorized, tacitly encouraged, or even
inadequately trained, police officers, like other public employees, may fall into
patterns of unconstitutional conduct. This can result from a variety of factors not
sufficiently traceable in origin to any fault of “municipal policy” in the Monell
sense (Monell v Dept. of Social Services, (1978) 436 U.S. 658, and Soell v
McDaniel, (1987 CA4 NC) 824 F2d 1380). If these unconstitutional practices
become sufficiently widespread, however, they may assume the quality of
“custom or usage” which has the force of law…”
19. If such a thing were to happen, officers might fail to exercise the necessary caution of
learning the law for themselves and, thereby, be influenced to follow flawed policy. Such is the
case in regard to the actions of NBPD Defendants on September 4, 2014.
“To detain the person arrested in custody for any purpose other than that of taking
him before a magistrate is illegal.” Kominsky v. Durand, 12 A. 2D 654 (1940).
“But the power of detaining the person so arrested, or restraining him of his
liberty, in such a case is not a matter within the discretion of the officer making
the arrest. He cannot legally hold the person arrested in custody for a longer
period of time than is reasonably necessary under all of the circumstances of the
case, to obtain a proper warrant or order for his further detention from some
tribunal or officer authorized under the law to issue such a warrant or order. If the
person arrested is detained or held by the officer for a longer period of time than
is required, under the circumstances without such warrant authority, he will have a
cause of action for false imprisonment against the officer and all others by whom
he has been unlawfully detained or held.” Harness v. Steele, 159 Ind. 286, 64 N.
E. 875.
“Any undue delay is unlawful and wrongful, and renders the officer himself and
all persons aiding and abetting therein wrongdoers from the beginning.” Ulvestad
v. Dolphin, 278 P. 684 (1929).
Page 9 of 89
AFFIDAVIT OF COUNTERCOMPLAINT
20. The law is not lacking in this matter. The requirement Childress is speaking of has been
standard practice since before the Magna Carta. It can hardly be construed that NBPD
Defendants, with the power to arrest a citizen, can be ignorant of this basic principal of law.
21. NBPD Defendants did not make any effort to locate a magistrate, but rather, acted in
furtherance of standing policy which directs officers to secret persons arrested, with or without a
warrant, from the nearest magistrate and take them directly to jail.
C. DUTY TO TAKE BEFORE MAGISTRATE WITHOUT UNNECESSARY DELAY
22. All statements and allegations made supra, and in Childress's Affidavit for
Countercomplaint are herein incorporated in their entirety by reference.
23. Art. 14.06 Tex.C.Crim.Pro., directs arresting officers to take, or have taken, the arrested,
with or without a warrant to the nearest magistrate.
ART. 14.06.MUST TAKE OFFENDER BEFORE MAGISTRATE
Except as provided by Subsection (b), in each case enumerated in this Code, the
person making the arrest or the person having custody of the person arrested shall
take the person arrested or have him taken without unnecessary delay, but not
later than 48 hours after the person is arrested, before the magistrate who may
have ordered the arrest, before some magistrate of the county where the arrest was
made without an order, or, if necessary to provide more expeditiously to the
person arrested the warnings described by Article 15.17 of this Code, before a
magistrate in a county bordering the county in which the arrest was made. The
magistrate shall immediately perform the duties described in Article 15.17 of this
Code.
24. Without considering the lawfulness of the warrantless arrest, for the purpose and
demonstration of jurisdiction, Childress will consider and address the actions subsequent to
arrest. The immediate issue addresses the duty of an arresting officer to take the accused before a
magistrate to secure jurisdiction such that the State may rightfully continue to restrict the accused
Page 10 of 89
AFFIDAVIT OF COUNTERCOMPLAINT
at liberty.
“[28] Maximum protection of individual rights could be assured by requiring a
magistrate's review of the factual justification prior to any arrest, but such a
requirement would constitute an intolerable handicap for legitimate law
enforcement. Thus, while the Court has expressed a preference for the use of
arrest warrants when feasible, Beck v. Ohio, at 96; Wong Sun v. United States,
371 U.S. 471, 479-482 (1963), it has never invalidated an arrest supported by
probable cause solely because the officers failed to secure a warrant. See, Ker v.
California, 374 U.S. 23 (1963); Draper v. United States, 358 U.S. 307 (1959);
Trupiano v. United States, 334 U.S. 699, 705 (1948).
[29] Under this practical compromise, a policeman's on-the-scene assessment of
probable cause provides legal justification for arresting a person suspected of
crime, and for a brief period of detention to take the administrative steps incident
to arrest. Once the suspect is in custody, however, the reasons that justify
dispensing with the magistrate's neutral judgment evaporate. There no longer is
any danger that the suspect will escape or commit further crimes while the police
submit their evidence to a magistrate. And, while the State's reasons for taking
summary action subside, the suspect's need for a neutral determination of
probable cause increases significantly. The consequences of prolonged detention
may be more serious than the interference occasioned by arrest. Pretrial
confinement may imperil the suspect's job, interrupt his source of income, and
impair his family relationships. See R. Goldfarb, Ransom 32-91 (1965); L. Katz,
Justice Is the Crime 51-62 (1972. Even pretrial release may be accompanied by
burdensome conditions that effect a significant restraint of liberty. See, e. g., 18 U.
S. C. 3146 (a)(2)(5). When the stakes are this high, the detached judgment of a
neutral magistrate is essential if the Fourth Amendment is to furnish meaningful
protection from unfounded interference with liberty. Accordingly, we hold that the
Fourth Amendment requires a judicial determination of probable cause as a
prerequisite to extended restraint of liberty following arrest.” Gerstein V. Pugh Et
Al, 95 S. Ct. 854, 420 U.S. 103, 43 L. Ed. 2D 54, 1975. SCT.40602.
25. NBPD Defendants failed to take, or to have Childress taken, directly to and before the
nearest magistrate. While certain delays can be expected in certain circumstances, simple failure
to seek the authority envisioned by Gerstien v. Pugh above, may not be construed as a proximate
cause of reasonable delay. The seminal case on this falls under Texas State Law, Heath v. Boyd,
141 Tex. 569; 175 S.W.2d 214; 1943 Tex. LEXIS 370.
Page 11 of 89
AFFIDAVIT OF COUNTERCOMPLAINT
“Moreover, if Heath's arrest had been authorized by the statutes, his subsequent
detention as pleaded proved would make a case of false imprisonment against
Boyd. The undisputed facts are that after his arrest Heath rode with the sheriff to
the former's car, which he then entered and drove several miles to the courthouse,
followed by Boyd. There he was detained in Boyd's office from one to three
hours, while Boyd was seeking advice by telephone as to what to do, in the face
of a plain statutory command as to [***13] what must be done in all cases of
arrest without warrant. Art. 217, C.C.P., 1925, provides, "I each case enumerated
in this chapter, the person making the arrest shall immediately take the person
arrested * * before the nearest magistrate where the arrest was made without an
order." Substantially the same requirement appears in Art. 325, C.C.P., 1925, and
Art. 487, P.C., 1925. Presumably, there was a magistrate in Mertzon, the county
seat. Yet Boyd offers no reason why he did not take Heath before that official.
Neither in his pleadings nor in his testimony does he suggest that a magistrate was
not reasonably available, although the arrest and detention all occurred between 8
o'clock in the morning and noon. If he had taken Heath to that official, he could
have gotten the information and assistance he was seeking by telephone. He was
under no obligation to seek advice or aid from Johnson. He was under a positive
duty immediately to seek a magistrate. That such failure, unexcused, makes a case
of false imprisonment, as a matter of law, is held by all the authorities. Newby v.
Gunn et al, 74 Texas, 455, 12 S.W. 67; McBeath v. Campbell, 12 S.W. (2d) 118;
Alamo Downs, Inc., et [***14] al v. Briggs (Civ. App.), 106 S.W. (2d) 733 (er.
dism.); Box v. Fluitt (Civ. App.), 47 S.W. (2d) 1107; Maddox v. Hudgeons (Civ.
App.), 72 S.W. 414 (er. ref.); [**218] Karner et al v. Stump (Civ. App.), 34 S.W.
656; Petty v. Morganet al (Civ. App.), 116 S.W. 141; Bishop v. Lucy et al (Civ.
App.) 50 S.W. 1029; 35 C.J.S., p. 546, sec. 31.” Heath v. Boyd, 141 Tex. 569;
175 S.W.2d 214; 1943 Tex. LEXIS 370.
26. NBPD Defendants made no due diligent effort to locate any magistrate.
“Although the failure to take the plaintiff before a magistrate would have been
excused if good grounds had existed for the belief that a magistrate was not
available, such was not the case since the officers made no attempt to determine
whether the magistrate was or would make himself available.” Roberts v Bohac,
574 F.2d 1232.
27. Irrespective of any other states, Texas has specific legislation concerning this requirement
to take the accused before a magistrate. Not only must the arresting officer exhaust the available
magistrates in the county, the consideration of the availability of a magistrate must be extended
Page 12 of 89
AFFIDAVIT OF COUNTERCOMPLAINT
to include every surrounding county (See, Tex.Crim.Pro., Article 14.06, supra).
The record offers, as the government's only justification, evidence that the
magistrate, who issued the warrants, advised of his unavailability after the early
evening of Friday, September 8, 1989. There are three other magistrates in the
District. The record is bereft of any evidence as to their availability. Likewise, the
record is bereft of any evidence as to the availability of any of the district Judges.
N5 Absent evidence of other than the unavailability of the duty magistrate (the
propriety of which is not here questioned), there is no basis to find that the delay
for the entire period from [*20] the arrest to presentment was necessary. To be
sure, it was a weekend. The court was closed. But those facts do not entitle the
government to presume the absence of an obligation to try to arrange the
appearance of an arrestee before one of the other possible judicial officers. The
law remains a force in life even outside usual business hours and all judicial
officers have the obligation to respond to the needs of parties as they are
mandated by the law. Defendant to their reasonable non-judicial activities, all
judicial officers stand ready to fulfill that obligation. Here, the government has
not shown the unavailability of all the possible judicial officers. The obligation of
complying with the law lies with the government, which thus has the burden of
proving that an arrestee was brought before a judicial officer without unnecessary
delay. Its proof of the unavailability of one judicial officer does not prove that the
delay to the next regular business hours, some sixty to sixty-five hours later, did
not constitute unnecessary delay if it does not exhaust the possibility of an
appearance before one of the other judicial officers in the district. See United
States v. Colon, 835 [*21] F.2d 27, 30-31 (2d Cir. 1987). United States v. Morgan,
et al. 1990 U.S. Dist. LEXIS 6206.
28. NBPD Defendants, acting in accordance with established police policy, took Childress
directly to jail, having made no effort to locate a magistrate for the purposes stipulated by Art.
14.06 and the federal requirement articulated by Gerstien v. Pugh, supra.
“The power to arrest does not confer upon the arresting officer the power to detain
a prisoner for other purposes.” Geldon v. Finnegan, 252 N.W. 372 (1934).
“The taking of plaintiff's picture before conviction was an illegal act.” Hawkins v.
Kuhne, 137 NY Supp 1090, 153 App Div 216 (1912).
“Compulsory fingerprinting before conviction is an unlawful encroachment...
[and] involves prohibited compulsory self-incrimination.” People v. Helvern, 215
N.Y. Supp 417 (1926).
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D. NO DUE DILIGENT EFFORT TO LOCATE MAGISTRATE
29. All statements and allegations made supra, and in Childress's Affidavit for
Countercomplaint are herein incorporated in their entirety by reference.
30. For the purpose of argument, even if the arrest had been proper and lawful, Defendant
Schoch and NBPD Defendants became trespassers ab inito by violating laws relating to their
occupations and office subsequent to arrest. Defendant Schoch, in absence of a warrant, entered
the home Childress was within without consent from Childress or the owner of the home,
coerced Childress therefrom, and assaulted him. Defendant Schoch became a criminal trespasser
on the rights of Childress by violating state laws (See, Tex. Occupations Code, Sec. 1702.3867.
EXECUTION OF CAPIAS OR ARREST WARRANT; OFFENSE; Tex.Pen.C., Sec. 30.05.
CRIMINAL TRESPASS, Sec. 20.02. UNLAWFUL RESTRAINT, and Sec. 22.02.
AGGRAVATED ASSAULT.) NBPD Defendants, after securing Childress in custody, made no
due diligent effort to locate a magistrate. After securing Childress such that there was no personal
safety threat to NBPD Defendants from Childress and no threat of escape, any authority of
NBPD Defendants, to continue to hold Childress evaporated (See, Gerstien v. Pugh, supra) and
NBPD Defendants had a duty to make a due diligent effort to locate a magistrate in the county in
which Childress was arrested, failing that, to make an effort to locate a magistrate within an
adjoining county for the purpose of securing authority to continue to hold Childress in the form
of a warrant issued by an examining magistrate under Art. 16.17 Tex.Crim.Pro.. Having made no
such effort, and being without any warrant, NBPD Defendants became criminal trespassers on
the rights of Childress, and therefore, violated a law relating to their office (See, Tex.Pen.Code,
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Sec. 39.03. OFFICIAL OPPRESSION). Even if the original arrest were proper, Defendant
Schoch and NBPD Defendants became trespassers ab inito.
“Under the doctrine of trespass ab inito, where a party exceeds an authority given
by law, the party loses the benefit of the justification and is considered a
trespasser ab inito, although to a certain extent the party followed the authority
given. The law will then operate retrospectively to defeat all acts done under the
color of lawful authority. American Mortg. Corp. v. Wyman 41 S.W.2d 270 (Tex.
Civ. App. Austin 1931). Thus, a person who enters on real property lawfully
pursuant to a conditional or restricted consent and remains after his or her right to
possession terminates and demand is made for his or her removal becomes a
trespasser from the beginning, and the law will then operate retrospectively to
defeat all acts done by him under color of lawful authority. Williams v. Garnett,
608 S.W.2d 794 (Tex. Civ. App. Waco 1980).
“The rule applies to the acts of sheriffs and other officers, as well as to the
conduct of private individuals.” American Mortg. Corp. v. Wyman, 41 S.W.2d 270
(Tex. Civ. App. Austin 1931).
31. As there is no false imprisonment statute in Texas, the appropriate statute is titled
Kidnapping (See, Tex.Pen.Code, Section 20.03). In as much as the act of Kidnapping was
committed while the Defendant Schoch and NBPD Defendants were displaying deadly weapons,
Defendants Schoch's and NBPD Defendant's acts were aggravated. Further, in as much as
Defendant Schoch and NBPD Defendants, the perpetrators of the act of Kidnapping, were
displaying deadly weapons at the time, the act must be considered an act in violation of Sec.
20.04 Tex.Pen.Code, titled Aggravated Kidnapping.
"It will be an evil day for American Liberty if the theory of a government outside
supreme law finds lodgement in our constitutional jurisprudence. No higher duty
rests upon this Court than to exert its full authority to prevent all violations of the
principles of the Constitution. Downs v. Bidwell, 182 U.S. 244 (1901).
"No man or woman in this country is so high that he is above the law. No officer
of the law may set that law at defiance with impunity. All the officers of the
government from the highest to the lowest, are creatures of the law, and are bound
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to obey it." Butz v. Economou, 98 S. Ct. 2894 (1978); United States v. Lee, 106
U.S. at 220, 1 S. Ct. at 261 (1882).
"Decency, security and liberty alike demand that government officials shall be
subjected to the same rules of conduct that are commands to the citizen. In a
government of laws, existence of the government will be imperiled if it fails to
observe the law scrupulously. Our Government is the potent, the omnipresent
teacher. For good or for ill, it teaches the whole people by its example. Crime is
contagious. If the Government becomes a lawbreaker, it breeds contempt for law;
it invites every man to become a law unto himself; it invites anarchy. To declare
that, in the administration of the criminal law, the end justifies the means -- to
declare that the Government may commit crimes in order to secure the conviction
of a private criminal -- would bring terrible retribution" Olmstead v. United States,
277 U.S. 438 (1928).
"The innocent individual who is harmed by an abuse of governmental authority is
assured that he will be compensated for his injury." Owen v. City of
Independence, 445 U.S. 622 (1980).
"I do not understand the government to contend that it is any less bound by the
obligation than a private individual would be..." "It is not the function of our
government to keep the citizen from falling into error; it is the function of the
citizen to keep the government from falling into error." Perry v. United States, 204
U.S. 330, 358.
"No man in this country is so high that he is above the law. No officer of the law
may set that law at defiance, with impunity. All the officers of the government,
from the highest to the lowest, are creatures of the law are bound to obey it." U.S.
v. Lee, 106 U.S. 196, 220 1 S. Ct. 240, 261, 27 L. Ed 171 (1882).
“Uncontrolled search and seizure is one of the first and most effective weapons in
the arsenal of every arbitrary government." Brenninger v. U.S., 338 U.S. 160.
T”he Fourth Amendment proscribes all unreasonable searches and seizures, and it
is a cardinal principle that "searches conducted outside the judicial process,
without prior approval by a judge or magistrate, are per se unreasonable under the
Fourth Amendment-subject only to a few specifically established and well-
delineated exceptions." Katz v. United States, 389 U.S. 347, 357.
“The point of the Fourth Amendment, which often is not grasped by zealous
officers, is not that it denies law enforcement the support of the usual inferences
which reasonable men draw from evidence. Its protection consists in requiring
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that those inferences be drawn by a neutral and detached magistrate instead of
being judged by the officer engaged in the often competitive enterprise of
ferreting out crime." Terry v. Ohio, 392 U.S. 1, 34 (1968).
“It must be recognized that whenever a police officer accosts an individual and
restrains his freedom to walk away, he has 'seized' that person." Id.
“Where property or evidence has been obtained through unconstitutional search
and seizure, failure to return the same and to suppress the evidence learned
thereby constitutes reversible error. - Boyd v. United States, 116 U.S. 616; Weeks v.
United States, 232 U.S. 383; Silverthorne Lumber Co. v. United States, 251 U.S.
385; Gouled v. United States, 255 U.S. 298; Amos v. United States, 255 U.S. 313.
When officers detained defendant for the purpose of requiring him to identify
himself, they performed a "seizure" of his person subject to the requirements of
the Fourth Amendment." Brown v. Texas, 443 U.S. at 47.
“The usual rule is that a police officer may arrest without warrant one believed by
the officer upon reasonable cause to have been guilty of a felony, and that he may
only arrest without a warrant one guilty of a misdemeanor if committed in his
presence. Kurtz v. Moffitt, 115 U.S. 487; Elk v. U.S., 117 U.S. 529. The rule is
sometimes expressed as follows:
"In cases of misdemeanor, a peace officer like a private person has
at common law no power of arresting without a warrant except
when a breach of the peace has been committed in his presence or
there is reasonable ground for supposing that a breach of the peace
is about to be committed or renewed in his presence." Halsbury's
Laws of England, Vol. 9 part III, 612. The reason for arrest for
misdemeanors without warrant at common law was promptly to
suppress breaches of the peace, 1 Stephen, History of Criminal
Law, 193..." Carrol v. U.S., 267 U.S. 132, 157.
“It is monstrous that courts should aid or abet the lawbreaking police officer. It is
abiding truth that '[n]othing can destroy a government more quickly than its own
failure to observe its own laws or worse, its disregard of the charter of its own
existence.'" Justice Brennan quoting Mapp v. Ohio, 367 U.S. 643, 659 (1961) in
Harris v. New York, 401 U.S. 222, 232. (1971).
“Constitutional provisions for the security of person and property should be
liberally construed." Boyd v. U.S., 116 U.S. 616 (1886).
“...and it is the duty of the courts to be watchful for the constitutional rights of the
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citizen, and against any stealthy encroachments thereon." Byars v. U.S., 273 U.S.
28 (1927).
"Where rights secured by the Constitution are involved, there can be no 'rule
making' or legislation which would abrogate them." Miranda v. Arizona, 384 U.S.
426, 491; 86 S. Ct. 1603.
E. COURT PROCEEDINGS HELD IN SECRET
32. All statements and allegations made supra, and in Childress's Affidavit for
Countercomplaint are herein incorporated in their entirety by reference.
33. Childress, after being arrested and booked into the jail, was eventually brought before a
magistrate the next morning. At said appearance criminal accusations were read to Childress
wherein he was officially charged with committing criminal acts against the laws of the State of
Texas. Then, Childress was notified of the amount of bail which had been set. At said hearing,
when Childress first observed magistrate, the court was in possession of a file from which the
magistrate read the allegations against Childress. This raises a question: Where, how, and by
what legal mechanism did the court accept into evidence, allegations against Childress outside
the presence of Childress who was under the absolute control of the State at the time?
The Texas Code of Judicial Conduct further provides that, except as authorized by
law, a judge shall not directly or indirectly initiate, [**46] permit, or consider ex
parte or other private communications concerning the merits of a pending or
impending judicial proceeding. TEXAS SUPREME COURT, CODE OF
JUDICIAL CONDUCT, Canon 3A (5). Ex parte communications are "those that
involve fewer than all of the parties who are legally entitled to be present during
the discussion of any matter. They are barred in order to ensure that 'every person
who is legally interested in a proceeding [is given the] full right to be heard
according to law'." JEFFREY M. SHAMAN, ET AL., JUDICIAL CONDUCT
AND ETHICS, § 6.01 at 145 (1990). The principle underlying such prohibition,
as it regards the disposition of criminal matters is quite simple: the disposition of
criminal matters is the public's business and ought to be conducted in public in
open court. See, Tamminen v. State, 644 S.W.2d 209; 217 (Tex.App.--San Antonio
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1982), aff'd in part and rev'd in part, 653 S.W.2d 799 (Tex.Crim.App. 1983); TEX.
CODE CRIM. PROC. ANN. art. 1.24 (Vernon 1977).
Private adjudications fly in the face of our judicial system's abiding commitment
to providing public access to civil and criminal proceedings and records. See,
Gannett Co. v. DePasquale, 443 U.S. 368, 61 L. Ed. 2d 608, 99 S. Ct. 2898
(1979). Our form of government is rooted in a recognition of the importance of
open and public proceedings. Subjecting judicial proceedings to public scrutiny
accomplishes two important goals. First, it provides the public with an
opportunity to exercise its right to monitor and evaluate its judicial system.
Second, and equally important, a judge's knowledge that his or her actions are not
shrouded in secrecy fosters a stronger commitment to strict conscientiousness in
the performance of judicial duties. Our courts have recognized that secret
tribunals exhibit abuses that are absent when the public has access to judicial
proceedings and records. See, Express-News Corp. v. Spears, 766 S.W.2d 885,
890 (Tex.App.--San Antonio 1989, orig. proceeding [leave denied]) Cadena, C.J.
dissenting. The judiciary has no special privilege to suppress or conduct in private
proceedings involving the adjudication of causes before it. [**48] In fact, such
secrecy frustrates the judiciary's responsibility to promote and provide fair and
equal treatment to all parties. Individual Judges are charged with the task of
adjudicating claims in a manner that protects the rights of both parties. A judge's
private [*497] communications with either party undermine the public's right to
evaluate whether justice is being done and removes an important incentive to the
efficient resolution of cases. In Re, John M. Thoma, Judge, County Court At Law
No. 1 Galveston County, Texas, Respondent, 873 S.W.2d 477; 1994 Tex. LEXIS
159.
F. EXAMINING TRIALS REQUIRED BY TEXAS LAW
34. All statements and allegations made supra, and in Childress's Affidavit for
Countercomplaint are herein incorporated in their entirety by reference.
35. In Texas, notwithstanding practices in other states, probable cause is only found and bail
set by a magistrate through an examining trial, the procedures for which are laid down in Ch. 16,
Tex.Crim.Pro.. The chapter has been carefully crafted by the Texas Legislature to install
safeguards so as to insure the rights of the accused are upheld and that the accused is protected
from abuses by the governmental, corporate instruments The People have created to enforce the
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criminal laws. Nothing in Ch. 16, or any other chapter of the Tex.C.Crim.Proc., authorizes
examining trials to be held in secret.
36. The first thing that must happen in the convening of a hearing by a magistrate is that all
parties must be present. In order for the magistrate to be in possession of a file containing details
of a criminal allegation against Childress, the magistrate had to receive that file from somewhere.
So, where and how did the magistrate get the file, and how did the documents in the file get
entered into evidence against Childress if not in a public hearing?
Art. 16.07. SAME RULES OF EVIDENCE AS ON FINAL TRIAL
The same rules of evidence shall apply to and govern a trial before an examining
court that apply to and govern a final trial.
37. Either there are some secret practices and procedures not codified, or the magistrate came
into possession of evidence outside the legal structures put in place to safeguard and to protect
the accused from just the sort of abuse perpetrated in the magistrate court.
G. SPECIFIC RIGHTS DENIED AS DELIBERATE CONTRIVANCE
38. All statements and allegations made supra, and in Childress's Affidavit for
Countercomplaint are herein incorporated in their entirety by reference.
39. At the hearing wherein bail was set, no plea was requested or accepted by the court,
Childress was never given opportunity to be faced with his accuser(s), nor was Childress
afforded opportunity to present exculpatory evidence and Childress was not present at the
hearing where probable cause was determined. Evidence was presented to the court, accepted
into evidence, and a probable cause determination made in secret.
OVERVIEW: Defendant was convicted of aggravated rape by a jury, based on
evidence that included the testimony of the victim and her companion, who were
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held at gunpoint, raped, and beaten by Defendant and other members of a
motorcycle gang. During trial, the prosecutor gave the sentencing judge a "secret"
police intelligence report about the gang, ex parte. Defense counsel was not
allowed to see it. The court affirmed the conviction, finding that the evidence was
overwhelming. Most errors were not preserved, either by failure to object in a
timely manner or by objection on a ground different from that raised on appeal.
The court vacated the sentence because the ex parte tender of the report violated
Defendant's rights to confrontation and due process under U.S. Const. amend. VI
and U.S. Const. amend. VI. The ex parte tender also constituted prosecutorial
misconduct in violation of Tex. Code Crim. Proc. Ann. art. 2.01 and the state
ethics rules, judicial misconduct under the Rules and Code of Judicial Conduct,
and deprived Defendant of a public trial under Tex. Code Crim. Proc. Ann. art.
1.24 (1977). Tamminen v. State, 644 S.W.2d 209; 1982 Tex. App. LEXIS 5561.
40. The above is neither a difficult concept, nor is it an obscure consideration. Evidence
presented ex parte while a party is being physically restrained from appearance, determinations
made in secret, confrontation denied, and opportunity to rebut not availed goes to the heart of our
legal system and directly influences the judicial machinery. No right-minded magistrate, in good
faith, can consider such behavior anything but egregious and the most outrageous abuse.
H. ARTICLE 15.17 AND SHARP PRACTICE TO BYPASS OF DUE COURSE
41. All statements and allegations made supra, and in Childress's Affidavit for
Countercomplaint are herein incorporated in their entirety by reference.
42. Tex.Crim.Pro., Art. 14.06, supra, refers to Art. 15.17 which I have outlined below. The
paragraph outlined below is (a) of Tex.Crim.Pro., Art. 15.17:
Art. 15.17. DUTIES OF ARRESTING OFFICER AND MAGISTRATE
In each case enumerated in this Code, the person making the arrest or the person
having custody of the person arrested shall without unnecessary delay, but not
later than 48 hours after the person is arrested,
(a) take the person arrested or have him taken before some magistrate of the
county where the accused was arrested or, to provide more expeditiously to the
person arrested the warnings described by this article, before a magistrate in any
other county of this state.
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(b) The arrested person may be taken before the magistrate in person or the image
of the arrested person may be presented to the magistrate by means of an
electronic broadcast system.
(c) The magistrate shall inform in clear language the person arrested, either in
person or through the electronic broadcast system, of the accusation against him
and of any affidavit filed therewith, of his right to retain counsel, of his right to
remain silent, of his right to have an attorney present during any interview with
peace officers or attorneys representing the state, of his right to terminate the
interview at any time, and of his right to have an examining trial.
(d) The magistrate shall also inform the person arrested of the person's right to
request the appointment of counsel if the person cannot afford counsel.
(e) The magistrate shall inform the person arrested of the procedures for
requesting appointment of counsel. If the person does not speak and understand
the English language or is deaf, the magistrate shall inform the person in a manner
consistent with Articles 38.30 and 38.31, as appropriate.
(f) The magistrate shall ensure that reasonable assistance in completing the
necessary forms for requesting appointment of counsel is provided to the person
at the same time counsel and if the magistrate is authorized under Article 26.04 to
appoint counsel for indigent Defendants in the county, the magistrate shall appoint
counsel in accordance with Article 1.051.
(g) If the magistrate is not authorized to appoint counsel, the magistrate shall
without unnecessary delay, but not later than 24 hours after the person arrested
requests appointment of counsel, transmit, or cause to be transmitted to the court
or to the courts' designee authorized under Article 26.04 to appoint counsel in the
county, the forms requesting the appointment of counsel.
(h) The magistrate shall also inform the person arrested that he is not required to
make a statement and that any statement made by him may be used against him.
(i) The magistrate shall allow the person arrested reasonable time and opportunity
to consult counsel and shall, after determining whether the person is currently on
bail for a separate criminal offense, admit the person arrested to bail if allowed by
law.
(j) A recording of the communication between the arrested person and the
magistrate shall be made. The recording shall be preserved until the earlier of the
following dates:
(1) the date on which the pretrial hearing ends; or
(2) the 91st day after the date on which the recording is made if the person
is charged with a misdemeanor or the 120th day after the date on which the
recording is made if the person is charged with a felony.
(k) The counsel for the Defendant may obtain a copy of the recording on payment
of a reasonable amount to cover costs of reproduction.
(l) For purposes of this subsection, "electronic broadcast system" means a two-
way electronic communication of image and sound between the arrested person
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and the magistrate and includes secure Internet videoconferencing.
43. Art. 15.17 gives the impression of covering all those things which must be done
subsequent to the arrest of an accused. However, Art. 15.17 is a special statute, intended to apply
to a special and relatively rare circumstance, not to the general procedures subsequent to arrest.
“Article 15.17, V.A.C.C.P., contemplates [**33] that there will be occasions
where no formal charges have been filed when the accused is taken before the
magistrate.” Harris v. State, 457 S.W.2d 903; 1970 Tex. Crim. App. LEXIS 1304.
44. Please notice Paragraph (i), and the highlighted section where it speaks of setting bail "if
allowed by law."
45. When a someone is arrested on a formal criminal allegation, bail may not be set unless
there is a finding of probable cause. If no probable cause is found in the examining trail under
the provisions of Ch. 16 Tex.Crim.Pro., the magistrate will have no jurisdiction over the accused
and my not set bail, but rather, must release the accused at his/her liberty. If probable cause is
found, a warrant must be issued and bail set.
46. Art. 15.17 supra, for all its confusing language, provides no legal procedure for setting
bail. However, the procedure prescribed for setting bail is well established. Ch. 17 Tex.Crim.Pro.
at Art. 17.05 clearly states the Legislative intent in these matters:
Article 17.05 WHEN BAIL IS TAKEN
A bail bond is entered into either before a magistrate, upon an examination of a
criminal accusation, or before a judge upon an application under habeas corpus;
or is taken from the Defendant by a peace officer if authorized by '‘Article 17.20,
17.21, or 17.22.
47. Childress was not arrested on suspicion; neither was Childress being held as a material
witness. Even if such were the case, before the magistrate could set bail, an examining trial must
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be held.
48. Childress had been arrested subsequent to a formal criminal allegation, booked and
placed in jail, and then brought before a magistrate. This circumstance is contemplated by Article
2.11 Tex. Crim. Pro.:
Art. 2.11. Examining court
When the magistrate sits for the purpose of inquiring into a criminal accusation
against any person, this is called an examining court.
49. Art. 15.17, supra, may seem long, however, it is an attempt to cover those things that are
normally covered in an examining trial. In one statute the Texas Legislature tried to cover those
things covered in a whole chapter dedicated to examining trials. While I will refrain from
quoting the whole chapter here, it is enough that Ch. 16 Tex.Crim.Pro. titled, “COMMITMENT
OR DISCHARGE OF THE ACCUSED,” is in place.
50. While the magistrate had a duty to read Childress his rights under Art. 15.17, there was
no provision therein, to determine probable cause, which would render lawful the setting of bail.
Absent a finding of probable cause, bail could not be set.
51. Now, back to the question: How did the criminal allegations against Childress get
submitted to the magistrate outside a proper examining trial before which Childress, subsequent
to the immediate restraint on his liberty, had a right to attend?
I. PROBABLE CAUSE DETERMINATION MADE BY INFORMAL METHOD
52. All statements and allegations made supra, and in Childress's Affidavit for
Countercomplaint are herein incorporated in their entirety by reference.
53. The magistrate accepted into evidence allegations of criminal wrongdoing against
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Childress while he was being held without warrant in jail. Some person appeared before the
magistrate and presented the court with evidence apparently sufficient to give a reasonable
person cause to believe Childress had committed the crimes alleged, although, Childress notes
and points out, that no arrest warrant from the magistrate ever issued, as the court record is void
of any such warrant.
54. Assuming Defendant Schoch and, or NBPD Defendants went before some magistrate and
presented that magistrate with a criminal allegation against Childress, under what provision of
law was this done? This would assume the magistrate was present the night before, before the
arresting officer left for the day. If that was not the case, then who presented evidence to the
court in the accuser's stead and what legal authority did that person have to present hearsay
evidence to the court?
55. While a third party may have authority to present the complaint to the court notifying
same that a crime had been committed, at the examination into the sufficiency held by the
magistrate subsequent to the arrest of the accused, any supporting testimony as to the facts
supporting the criminal allegation had to be presented in accordance with the Tex.R.Evid.. Said
testimony also had to be reduced to writing and certified by the court.
Art. 16.09. TESTIMONY REDUCED TO WRITING.
The testimony of each witness shall be reduced to writing by or under the
direction of the magistrate, and shall then be read over to the witness, or he may
read it over himself. Such corrections shall be made in the same as the witness
may direct; and he shall then sign the same by affixing thereto his name or mark.
All the testimony thus taken shall be certified to by the magistrate. In lieu of the
above provision, a statement of facts authenticated by State and defense counsel
and approved by the presiding magistrate may be used to preserve the testimony
of witnesses.
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56. Nothing exists in the court record to authenticate testimony of a complainant to support
the criminal allegation made against Childress, and any testimony within the court record is
insufficient on its face for lack of verified supporting affidavit. In fact, the court record is void of
any proper complaint made from a complainant with personal first hand knowledge of the
entirety of the events which took place on September 4, 2014.
“In an examining trial, the truth of the accusation may not be based on the
accusation alone; such conclusion, if valid, would render the examining trial a
useless thing, a mere re-enactment of the earlier determination of whether an
arrest warrant should issue. Ex parte Garcia, 547 S.W.2d 271 (Tex. Crim. App.
1977). Rather, the state must show that there is a reason to believe that an
indictment will be preferred for some violation of the law. Ex parte Martin, 119
Tex. Crim. 141, 45 S.W.2d 965 (1932). Thus, the state has the burden of proving
that there is probable cause to believe the accused committed the offense charged
against him or her.” State ex rel. Holmes v. Salinas, 784 S.W.2d 421 (Tex. Crim.
App. 1990).
57. In either case, a hearing of some type was convened at which evidence was presented to
the court ex parte, while Childress was present in the building but physically restrained from
being present at the hearing.
58. It is the specific allegation and contention of Childress that some person employed either
by the NEW BRAUNFELS POLICE DEPARTMENT, or by the confining agency COMAL
COUNTY JAIL, having no personal knowledge of the evidence, presented criminal allegations
to the court and supporting evidence alleging criminal acts by Childress. It is further the
contention of Childress that said presentation occurred outside a proper hearing to which
Childress had a statutory right to be present at.
Art. 16.01. EXAMINING TRIAL
When the accused has been brought before a magistrate for an examining trial that
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officer shall proceed to examine into the truth of the accusation made, allowing
the accused, however, sufficient time to procure counsel. In a proper case, the
magistrate may appoint counsel to represent an accused in such examining trial
only, to be compensated as otherwise provided in this Code. The accused in any
felony case shall have the right to an examining trial before indictment in the
county having jurisdiction of the offense, whether he be in custody or on bail, at
which time the magistrate at the hearing shall determine the amount or sufficiency
of bail, if a bailable case. If the accused has been transferred for criminal
prosecution after a hearing under Section 54.02, Family Code, the accused may be
granted an examining trial at the discretion of the court.
J. INCOMPLETE COURT RECORD
59. All statements and allegations made supra, and in Childress's Affidavit for
Countercomplaint are herein incorporated in their entirety by reference.
60. Subsequent to the hearing wherein probable cause was allegedly determined, the
magistrate was directed by Art. 17.30 Tex.Crim.Pro., as follows:
Art. 17.30. Shall certify proceedings
The magistrate, before whom an examination has taken place upon a criminal
accusation, shall certify to all the proceedings had before him, as well as where he
discharges, holds to bail or commits, and transmit them, sealed up, to the court
before which the Defendant may be tried, writing his name across the seals of the
envelope. The voluntary statement of the Defendant, the testimony, bail bonds,
and every other proceeding in the case, shall be thus delivered to the clerk of the
proper court, without delay.
61. Childress states that there is nothing in the court record to indicate the magistrate
complied with the requirement of Art. 17.30, supra. In point of fact, Childress further states that
there is nothing in the court record at all that is required and there are documents missing that are
required in order for the court to maintain jurisdiction. Therefore, it must be presumed that the
magistrate did not forward all the records of the hearing, sealed up, to the clerk of the proper
court. Said act is in direct violation of Sec. 37.10 Tex.Pen.Code:
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§ 37.10. TAMPERING WITH GOVERNMENTAL RECORD
A person commits an offense if he:
(a) knowingly makes a false entry in, or false alteration of, a governmental record;
(b) makes, presents, or uses any record, document, or thing with knowledge of its
falsity and with intent that it be taken as a genuine governmental record;
(c) intentionally destroys, conceals, removes, or otherwise impairs the verity,
legibility, or availability of a governmental record;
"A departure by a court from those recognized and established requirements of
law, however close apparent adherence to mere form in method of procedure,
which has the effect of depriving one of a constitutional right, is an excess of
jurisdiction." Wuest v. Wuest, 127 P2d 934, 937.
"Where a court failed to observe safeguards, it amounts to denial of due process
of law, court is deprived of juris." Merritt v. Hunter, C.A. Kansas 170 F2d 739.
K. MAGISTRATE CONSPIRED WITH JAILER
TOWARD TAMPERING WITH GOVERNMENT DOCUMENT
62. All statements and allegations made supra, and in Childress's Affidavit for
Countercomplaint are herein incorporated in their entirety by reference.
63. It is the contention and specific allegation of Childress, that after the hearing wherein
Childress was set to bail, the magistrate did not forward the records of the hearing to the clerk of
the COMAL COUNTY COURT AT LAW #2, sealed up as required by law, but rather, returned
them to the jailer.
64. Further, it is the specific allegation of Childress that the magistrate acted in concert and
collusion with the jailer(s) to deny Childress in the due course of the laws by secreting the
charges against Childress from the clerk of the COMAL COUNTY COURT AT LAW #2,
thereby, placing Childress in a state of legal limbo, wherein Childress found his liberty restricted
by being bound to the court, his property improperly taken and unable to render actions in his
behalf as there was and is no record of the above proceedings. It is as if Childress existed in a
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state of limbo between arrest and trial.
L. STATE ACTORS DISQUALIFIED
65. All statements and allegations made supra, and in Childress's Affidavit for
Countercomplaint are herein incorporated in their entirety by reference.
66. Defendant Schoch and NBPD Defendants, consequent to the illegal and ulawful acts
performed thereby, and demonstrated herein, were and are criminal trespassers on the laws of the
State of Texas and, thereby, cannot be construed as credible persons for the purpose of providing
witness. By the illegal acts of Defendant Schoch and NBPD Defendants, the State was rendered
without jurisdiction to pursue prosecution as a result of violations of the due course of the laws
and due process secured by the federal constitution, by State licensed contractor and, or
employees.
67. The jailers subjected Childress to deliberately contrived punishment subsequent to arrest
and for the period of time between arrest and bringing Childress before a magistrate in violation
of the due course of the laws of the State of Texas and due process secured by the federal
constitution, and thereby, the confinement of Childress while he was being secreted from a
magistrate absent a showing of some compelling cause beyond mere contrived policy, also
rendered the State without jurisdiction to pursue prosecution.
68. The magistrate, in its turn, by denying Childress audience at the examining trial where
probable cause was allegedly found and bail set, denied Childress in the due course of the laws
of the State of Texas and due process secured by the federal constitution and thereby, disqualified
itself, leaving both the magistrate and this court without jurisdiction to pursue prosecution in the
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instant matter.
“Acts in excess of judicial authority constitutes misconduct, particularly where a
judge deliberately disregards the requirements of fairness and due process.”
Cannon v. Commission on Judicial Qualifications, (1975) 14 Cal. 3D 678, 694.
“Society's commitment to institutional justice requires that judges be solicitous of
the rights of persons who come before the court.” Geiler v. Commission on
Judicial Qualifications, (1973) 10 Cal. 3d 270, 286.
“Before sending a person to jail for contempt or imposing a fine, judges are
required to provide due process of law, including strict adherence to the
procedural requirements contained in the Code of Civil Procedure. Ignorance of
these procedures is not a mitigating but an aggravating factor.” Ryan v.
Commission on Judicial Performance, (1988) 45 Cal. 3D 518, 533.
"No judicial process, whatever form it may assume, can have any lawful authority
outside of the limits of the jurisdiction of the court or judge by whom it is issued;
and an attempt to enforce it beyond these boundaries is nothing less than lawless
violence.” Ableman v. Booth, 21 Howard 506 (1859).
"Where there is no jurisdiction, there can be no discretion, for discretion is
incident to jurisdiction." Piper v. Pearson, 2 Gray 120, cited in Bradley v. Fisher,
13 Wall. 335, 20 L. Ed. 646 (1872).
“When a judicial officer acts entirely without jurisdiction or without compliance
with jurisdiction requisites he may be held civilly liable for abuse of process even
though his act involved a decision made in good faith, that he had jurisdiction.”
U.S. Fidelity & Guaranty Co., 217 Miss. 576, 64 So. 2D 697.
“When a judge knows that he lacks jurisdiction, or acts in the face of clearly valid
statutes expressly depriving him of jurisdiction, judicial immunity is lost.” Zeller
v. Rankin, 101 S. Ct. 2020, 451 U.S. 939, 68 L.Ed 2d 326.
“Under federal Law, which is applicable to all states, the U.S. Supreme Court
stated that 'if a court is without authority, its judgments and orders are regarded as
nullities. They are not voidable, but simply void, and form no bar to a recovery
sought, even prior to a reversal in opposition to them. They constitute no
justification and all persons concerned in executing such judgments or sentences
are considered, in law, as trespassers.'" Elliot v. Piersol, 1 Pet. 328, 340, 26 U.S.
328, 340 (1828).
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Tex. Crim. Pro.
Art. 3.04. OFFICIAL MISCONDUCT. In this code:
(1) "Official misconduct" means an offense that is an intentional or knowing
violation of a law committed by a public servant while acting in an official
capacity as a public servant.
(2) "Public servant" has the meaning assigned by Section 1.07, Penal Code.
Texas Penal Code
CHAPTER 1. GENERAL PROVISIONS
Sec. 1.07. DEFINITIONS. (a) In this code
(41) "Public servant" means a person elected, selected, appointed, employed, or
otherwise designated as one of the following, even if he has not yet qualified for
office or assumed his duties:
(A) an officer, employee, or agent of government;
(C) an arbitrator, referee, or other person who is authorized by law or private
written agreement to hear or determine a cause or controversy;
69. As a result of Defendant Schoch's and NBPD Defendant's tortious and criminal acts, non-
compliance with the Tex. Occupations Code and Tex.C.Crim.Proc., Official Misconduct, Failure
to Exhaust Administrative Remedies, and Denial of Substantive and Procedural Due Process, in
addition to the magistrate's non-compliance with the Tex.C.Crim.Proc., Official Misconduct,
Denial of Procedural Due Process and aiding the Denial of Substantive Due Process, and a lack
of any Competent Witnesses, this court lacked jurisdiction from the onset to issue and summons,
warrants, etc. or to render any judgment or decision against Childress.
70. Unlike personal or territorial jurisdiction, subject-matter jurisdiction cannot be waived
and subpoenas, summons, warrants, orders and judgments, etc., from a court that did not have
subject-matter jurisdiction are forever a nullity. Subject matter can never be presumed, never be
waived, and cannot be constructed even by mutual consent of the parties. Subject matter
jurisdiction is two parts: (1) the statutory or common law authority for the court to hear the case;
and, (2) the appearance and testimony of a competent fact witness, in other words, sufficiency of
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pleadings. Even if a court has or appears to have subject matter jurisdiction, subject matter
jurisdiction can be lost. Major reasons why subject matter jurisdiction is lost:
(1) “fraud upon the court.” In re Village of Willowbrook, 37 Ill.App.3d 393
(1962)
“Fraud upon the court is reserved for only the most egregious
misconduct, and requires a showing of an unconscionable plan or
scheme which is designed to improperly influence the court in its
decision.” Wilson v. Johns-Manville Sales Corp., 873 F.2d 868,
872 (5th Cir.), cert. denied, 493 U.S. 977 (1989). “The narrow
concept of fraud upon the court... is a fraud perpetrated by officers
of the court so that the judicial machinery cannot perform in the
usual manner.” (Id.)
71. The magistrate's actions, demonstrated supra, constitute fraud, and same was perpetrated
so that the judicial machinery of the court could not, and did not, perform in the usual manner.
(2) “...a judge does not follow statutory procedure.” Armstrong v. Obucino, 300 Ill
140, 143 (1921).
72. As demonstrated supra, the magistrate for the court did not follow statutory procedures
set out within the Tex.C.Crim.Proc.
(3) Unlawful activity of a judge or undisclosed conflict of interest. Code of
Judicial Conduct.
73. Defendants collectively, as well as, ABIGAIL L. WHITAKER and CHARLES A.
STEPHENS, II are all representatives and, or agents of NEW BRAUNFELS, CITY OF; or
COMAL, COUNTY OF; or THE STATE OF TEXAS creating a serious Conflict of Interest.
Under the circumstances, CHARLES A. STEPHENS, II is acting as representative, agent of
NEW BRAUNFELS, CITY OF; COMAL, COUNTY OF; and, or THE STATE OF TEXAS and
“judge”. It has not been disclosed by any of the aforementioned Individuals that each of them are
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representatives and, or agents of Childress's adversary, and receiving compensation, therefrom,
creating a conflict of interest.
(4) “...violation of due process.” Johnson v. Zerbst, 304 U.S. 458, 58 S. Ct. 1019
(1938); Pure Oil Co. v. City of Northlake, 10 Ill. 2d 241, 245, 140 N.E.2d 289
(1956); Hallberg v. Goldblatt Bros., 363 Ill 25 (1936).
(5) "A judgment is void if the court that rendered it lacked jurisdiction of the
parties, or if its actions resulted in a denial of due process." Sramek v. Sramek, 17
Kan. App. 2d 573, 576-77, 840 P.2d 553 (1992), rev. denied 252 Kan. 1093 (1993)
(citing 9 Kan. App. 2d 735, Syl. ¶ 5. "A judgment that is void for lack of due
process may be set aside at any time." 9 Kan. App. 2d 735)
74. Defendant Schoch caused Childress to be subjected to, and NBPD Defendants subjected
Childress to, an unreasonable, illegal search and seizure, unlawful false arrest, aggravated
assault, unlawful restraint, unlawful imprisonment, and denial of substantive and procedural due
process. The magistrate for the state court subjected Childress to illegal court proceedings, denial
of notice and confrontation, unlawful imprisonment, denial of liberty and property without due
process. CHARLES A. STEPHENS, II, is threatening to further subject Childress to
unreasonable, illegal search and seizure, unlawful false arrest and unlawful imprisonment, and
denial of substantive and procedural due process by issuing a warrant for Childress on February
26, 2015, while lacking any jurisdiction to do so, rendering the warrant issued by CHARLES A.
STEPHENS, II, void.
(6) “...where no justiciable issue is presented to the court through proper
pleadings.” Ligon v. Williams, 264 Ill.App.3d 701, 637 N.E.2d 633 (1st Dist.
1994).
75. The court record is void of any proper pleading, or any pleading at all, against Childress.
(7) “...where a complaint states no cognizable cause of action against that party.”
Charles v. Gore, 248 Ill.App.3d 441, 618 N.E.2d 554 (1st Dist 1993).
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76. The court record is void of any complaint stating any cause of action against Childress.
The “Police Report” made by Bell is Hearsay– See, which is attached hereto, and incorporated
herein, in its entirety:
TABLE OF AUTHORITIES:
POLICE REPORTS ARE HEARSAY
and should not appear in the court record as Childress has not request that it be entered, therein.
If the “Police Report” by Bell has been entered into the court record, it was entered into court
record by some Individual outside the presence of Childress and without Childress's knowledge,
thereby, denying Childress notice and opportunity to make objections. "A Judge...shall not
directly or indirectly initiate, permit, nor consider ex parte or other private communications
concerning the merits of a pending or impending judicial proceeding. A Judge shall require
compliance with this subsection by court personnel subject to his or her direction and control... "
Judicial Code of Conduct Cannon 3 Section A(5)
(8) “...where service of process was not made pursuant to statute and Supreme
Court Rules.” Janove v. Bacon, 6 Ill. 2d 245, 249, 218 N.E.2d 706, 708 (1955).
(9) "The failure to properly serve parties in interest deprives the court of personal
jurisdiction of the unserved parties." Sramek v. Sramek, 17 Kan. App. 2d 573,
576-77, 840 P.2d 553 (1992), rev. denied 252 Kan. 1093 (1993) (citing Ford v.
Willits, 9 Kan. App. 2d 735, Syl. ¶ 4, 688 P.2d 1230 (1984), aff'd 237 Kan. 13, 697
P.2d 834 (1985))
77. There has been no service of process made upon Childress by or through any of the
Defendant or the court at any point. The court record is void of any service of process or proof
thereof.
(10) “...when proper notice is not given to all parties by the movant.” Wilson v.
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Moore, 13 Ill.App.3d 632, 301 N.E.2d 39 (1st Dist. 1973).
78. Childress never received any notice by or through the Defendants and the court. As
demonstrated above, the court never, at any point, had jurisdiction. Even in the even the court did
appear to have jurisdiction, such was lost as a result of the acts of Defendant Schoch, NBPD
Defendants, and the magistrate.
79. As stated and demonstrated, supra, the court is without jurisdiction and the “arrest
warrant” issued by CHARLES A. STEPHENS, II is not voidable, it is simply void– See, which
is attached hereto, and incorporated herein, in its entirety:
TABLE OF AUTHORITIES:
VOID JUDGMENTS
80. The “ORDER FOR ARREST-FAILURE TO APPEAR” and “CAPIAS-FAILURE TO
APPEAR”, “arrest warrant” issued by CHARLES A. STEPHENS, II, in absence of any
jurisdiction, and are null and void, and the arrest of Childress thereon, will result in further false
arrest, and his imprisonment as a result therefrom, unlawful.
"The fact that the petitioner was released on a promise to appear before a
magistrate for an arraignment, that fact is circumstance to be considered in
determining whether in first instance there was a probable cause for the arrest."
Monroe v. Papa, DC, Ill. 1963, 221 F Supp 685.
M. PROSECUTOR NOT COMPETENT TO TESTIFY
81. All statements and allegations made supra, and in Childress's Affidavit for
Countercomplaint are herein incorporated in their entirety by reference.
82. As stated and shown above, and within Childress's Affidavit for Countercomplaint,
Defendants collectively as a result of their tortious and criminal acts, are disqualified as
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witnesses against Childress. The Prosecutor, ABIGAIL L. WHITAKER is also disqualified from
providing witness against Childress, pursuant to the Federal and State Rules of Evidence, and
pursuant to court rulings.
83. The Prosecutor, ABIGAIL L. WHITAKER is barred as a witness against Childress by the
Federal and this State's Rules of Evidence:
Federal Rules of Evidence
Rule 601. Competency to Testify in General
Every person is competent to be a witness unless these rules provide otherwise.
But in a civil case, state law governs the witness’s competency regarding a claim
or defense for which state law supplies the rule of decision.
Rule 602. Need for Personal Knowledge
A witness may testify to a matter only if evidence is introduced sufficient to
support a finding that the witness has personal knowledge of the matter. Evidence
to prove personal knowledge may consist of the witness’s own testimony.
Rule 802. The Rule Against Hearsay
Hearsay is not admissible unless any of the following provides otherwise:
• a federal statute;
• these rules; or
• other rules prescribed by the Supreme Court.
Texas Rules of Evidence
RULE 601. COMPETENCY AND INCOMPETENCY OF WITNESSES
(a) General Rule. Every person is competent to be a witness except as otherwise
provided in these rules. The following witnesses shall be incompetent to testify in
any proceeding subject to these rules:
(1) Insane persons.
(2) Children.
RULE 602. LACK OF PERSONAL KNOWLEDGE
A witness may not testify to a matter unless evidence is introduced sufficient to
support a finding that the witness has personal knowledge of the matter. Evidence
to prove personal knowledge may, but need not, consist of the testimony of the
witness. This rule is subject to the provisions of Rule 703, relating to opinion
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testimony by expert witnesses.
ARTICLE VIII. HEARSAY
RULE 801. DEFINITIONS
RULE 802. HEARSAY RULE
Hearsay is not admissible except as provided by statute or these rules or by other
rules prescribed pursuant to statutory authority. Inadmissible hearsay admitted
without objection shall not be denied probative value merely because it is hearsay.
84. The prosecutor ABIGAIL L. WHITAKER has no personal knowledge of the events
which took place on September 4, 2014, between Childress and Defendants collectively and is
not a competent witness. Any offer of knowledge of those events from ABIGAIL L.
WHITAKER is Hearsay and therefore, is not admissible as evidence against Childress.
85. The following court ruling citations make it clear that an attorney cannot testify or
provide facts before a court:
“An attorney for the plaintiff cannot admit evidence into the court. He is either an
attorney or a witness. Trinsey v. Pagliaro, D.C. Pa. 1964, 229 F. Supp. 647.
“Manifestly, [such statements] cannot be properly considered by us in the
disposition of [a] case.” United States v. Lovasco, (06/09/77) 431 U.S. 783, 97 S.
Ct. 2044, 52 L. Ed. 2D 752.
“Under no possible view, however, of the findings we are considering can they be
held to constitute a compliance with the statute, since they merely embody
conflicting statements of counsel concerning the faces as they suppose them to be
and their appreciation of the law which they deem applicable, there being,
therefore, no attempt whatever to state the ultimate facts by a consideration of
which we would be able to conclude whether or not the judgment was warranted.”
Gonzales v. Buist, (04/01/12) 224 U.S. 126, 56 L. Ed. 693, 32 S. Ct. 463.
“No instruction was asked, but, as we have said, the judge told the jury that they
were to regard only the evidence admitted by him, not statements of counsel.”
Holt v. United States, (10/31/10) 218 U.S. 246, 54 L. Ed. 1021, 31 S. Ct. 2.
“The prosecutor is not a witness”; and he should not be permitted to add to the
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record either by subtle or gross improprieties. Those who have experienced the
full thrust of the power of government when leveled against them know that the
only protection the citizen has is in the requirement for a fair trial.” Donnelly v.
Dechristoforo, 1974. SCT.41709, 56 ;416 U.S. 637 (1974).
Mr. Justice Douglas, dissenting.
“Care has been taken, however, in summoning witnesses to testify, to call no man
whose character or whose word could be successfully impeached by methods
known to the law. And it is remarkable, we submit, that in a case of this
magnitude, with every means and resource at their command, the complainants,
after years of effort and search in near and in the most remote paths, and in every
collateral by-way, now rest the charges of conspiracy and gullibility against these
witnesses, only upon the bare statements of counsel. The lives of all the witnesses
are clean, their characters for truth and veracity un-assailed, and the evidence of
any attempt to influence the memory or the impressions of any man called, cannot
be successfully pointed out in this record.” 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.
“Statements of counsel in brief or argument are not sufficient for motion to
dismiss or for summary judgment.” Trinsey v. Pagliaro, D.C. Pa. 1964, 229 F.
Supp. 647.
“Where there are no depositions, admissions, or affidavits the court has not fact to
rely on for a summary determination.” (Id.)
“Professional statements of litigants attorneys are treated as affidavits, and the
attorney making statements may be cross-examined regarding substance of
statement and may be impeach for lack of personal knowledge, Hearsay.” Frunzar
v. Allied Property and Casualty Ins. Co., (Iowa 1996) 548 N.W. 2 d 880.
“The practices of an attorney filings an affidavit on behalf of his client asserting
the status of the client is not approved, inasmuch as not only does the affidavit
become hearsay, but it places the attorney in a position of witness thus
compromising his role as advocate.” Porter v. Porter, (N.D. 1979) 274 N.W. 2D
235.
“Statutes forbidding administering of oath by attorneys in cases in which they
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may be engaged applies to affidavits as well.” Deyo v. Detroit Creamery Co.,
(Mich 1932) 241 N.W. 2d. 244.
86. As a result of Defendant's, collectively, tortious and criminal acts, non-compliance,
Official Misconduct, Failure to Exhaust Administrative Remedies, and Denial of Substantive and
Procedural Due Process, and lack of any Competent Witnesses, this court lacks Subject Matter
and Personal Jurisdiction in the instant case / cause to issue summons, warrants, etc., or to render
any judgment or decision against Childress. Where there is no jurisdiction, there is no judicial
function or judicial immunity (see, Stump v. Sparkman, 435 U.S. 349 (1978); Vickery v.
Dunnivan, 279 P.2d 853, (1955)).
V. FURTHER LACK OF SUBJECT-MATTER JURISDICTION
"It is the duty of the court to declare the meaning of what is written, and not
what was intended to be written.” –– J.W. Seavey Hop Corp. v. Pollock, 20 Wash.
2D 337, 348 - 49, 147 P. 2d. 310 (1944), cited with approval in Berg v. Hudesman,
115 Wash. 2d at 669.
A. AMERICAN CITIZENS
87. All statements and allegations made supra, and in Childress's Affidavit for
Countercomplaint are herein incorporated in their entirety by reference.
88. This Court, and all public offices, are defined under FRCP Rule 4 (j) as a FOREIGN
STATE, and as defined under TITLE 28—JUDICIARY AND JUDICIAL PROCEDURE, the
Foreign Sovereign Immunities Act (FSIA) of 1976 is a United States law, codified at Title 28, §
1330, § 1332, § 1391(f), § 1441(d), and § 1602-1611.
89. This Court is being jurisdictionally challenged and “full disclosure” of the “true”
jurisdiction of this Court is now being Demanded.
90. Any failure to disclose this Court's true jurisdiction is a violation of 15 Statutes at Large
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249, for this Act was passed to remove The People of the united States of America from the
federal citizenship under the 14th amendment (ratified by Texas on February 18, 1870, after
rejection – October 27, 1866).
15 Statutes at Large, Chapter 249, enacted July 27, 1868, states the following:
PREAMBLE - Rights of American citizens in foreign states.
WHEREAS, the right of expatriation is a natural and inherent right of all people,
indispensable to the enjoyment of the rights of life, liberty, and the pursuit of
happiness; and whereas in the recognition of this principle this government has
freely received emigrants from all nations, and invested them with the rights of
citizenship; and whereas it is claimed that such American citizens, with their
descendants, are subjects of foreign states, owing allegiance to the governments
thereof; and whereas it is necessary to the maintenance of public peace that this
claim of foreign allegiance should be promptly and finally disavowed.
SECTION I - Right of expatriation declared.
THEREFORE, Be it enacted by the Senate of the and House of Representatives
of the United States of America in Congress assembled, That any declaration,
instruction, opinion, order, or decision of any officers of this government which
denies, restricts, impairs, or questions the right of expatriation, is hereby declared
inconsistent with the fundamental principles of this government.
SECTION II - Protection to naturalized citizens in foreign states.
And it is further enacted, That all naturalized citizens of the United States, while
in foreign states, shall be entitled to, and shall receive from this government, the
same protection of persons and property that is accorded to native born citizens in
like situations and circumstances.
SECTION III - Release of citizens imprisoned by foreign governments to be
demanded.
And it is further enacted, That whenever it shall be made known to the President
that any citizen of the United States has been unjustly deprived of his liberty by or
under the authority of any foreign government, it shall be the duty of the President
forthwith to demand of that government the reasons for such imprisonment, and if
it appears to be wrongful and in the violation of the rights of American
citizenship, the President shall forthwith demand the release of such citizen, and if
the release so demanded is unreasonably delayed or refused, it shall be the duty of
the President to use such means, not amounting to acts of war, as he may think
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necessary and proper to obtain or effectuate such release, and all the facts and
proceedings relative thereto shall as soon as practicable be communicated by the
President to Congress.
Approved, July 27, 1868
91. As an American Citizen, Childress holds the inherent right to invoke the 11th
Amendment: “The judicial power shall not be construed to extend to any suit in law or equity,
commenced or prosecuted by a Foreign State.” As an America Citizen, Childress, hereby claims
the right of immunity inherent in the 11th amendment. The judicial power and jurisdiction shall
not be construed to extend to any suit in law or equity, commenced or prosecuted by a Foreign
State.
92. This Court and the Prosecutor representing the STATE OF TEXAS are considered a
FOREIGN STATE to Childress, as those offices hold a position under section three (3) of the
14th Amendment of the UNITED STATES Constitution, as well as, under the Reconstruction Act
of 1867, as federal citizen(s) per Acts of Congress, 8 U.S.C. § 1483, “Restrictions on loss of
nationality.”
B. OATH OF OFFICE MAKES PUBLIC OFFICIALS “FOREIGN”
93. All statements and allegations made supra, and in Childress's Affidavit for
Countercomplaint are herein incorporated in their entirety by reference.
94. Those holding Federal or State public office, county or municipal office, under the
Legislative, Executive or Judicial branch, including Court Officials, Judges, Prosecutors, Law
Enforcement Department employees, Officers of the Court, etc., before entering into these public
offices, are required by the U.S. Constitution and statutory law to comply with 5 U.S.C. § 3331
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“Oath of office.” State Officials are also required to meet this same obligation, according to State
Constitutions and State statutory law.
95. All oaths of office come under 22 C.F.R., Foreign Relations, Sections § 92.12 – 92.30,
and all who hold public office come under 8 U.S.C. § 1481 “Loss of nationality by native-born
or naturalized citizen; voluntary action; burden of proof; presumptions.”
96. Under 22 U.S.C. § 611, Foreign Relations and Intercourse, a Public Official is considered
a foreign agent. In order to hold public office, the candidate must file a true and complete
registration statement with the State Attorney General as a foreign principle.
97. The Oath of Office requires the public official in its foreign state capacity to uphold the
constitutional form of government or face consequences:
Title 10 U.S.C. § 333. “Interference with State and Federal law”
The President, by using the militia or the armed forces, or both, or by any other
means, shall take such measures as he considers necessary to suppress, in a State,
any insurrection, domestic violence, unlawful combination, or conspiracy, if it—
(1) so hinders the execution of the laws of that State, and of the United
States within the State, that any part or class of its people is deprived of a
right, privilege, immunity, or protection named in the Constitution and
secured by law, and the constituted authorities of that State are unable,
fail, or refuse to protect that right, privilege, or immunity, or to give that
protection; or
(2) opposes or obstructs the execution of the laws of the United States or
impedes the course of justice under those laws.
In any situation covered by clause (1), the State shall be considered to have
denied the equal protection of the laws secured by the Constitution.
98. Such willful action, while serving in official capacity, violates 18 U.S.C., § 1918:
Title 18 U.S.C. § 1918:
“Disloyalty and asserting the right to strike against the government”
Whoever violates the provision of 7311 of title 5 that an individual may not
accept or hold a position in the Government of the United States or the
government of the District of Columbia if he—
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(1) advocates the overthrow of our constitutional form of government;
(2) is a member of an organization that he knows advocates the overthrow of our
constitutional form of government;
shall be fined under this title or imprisoned not more than one year and a day, or
both.
99. Such willful action, while serving in official capacity also deprives claimants of “honest
services”:
Title 18 U.S.C. § 1346:
Definition of “ scheme or artifice to defraud”
For the purposes of this chapter, the term “scheme or artifice to defraud” includes
a scheme or artifice to deprive another of the intangible right of honest services.
100. The following are the treaties which placed all public offices in a foreign state capacity
and status under international law and under the United Nation jurisdiction:
49 Stat. 3097; Treaty Series 881: CONVENTION ON RIGHTS AND DUTIES
OF STATES.
1945 IOIA – under the International Organizations Act of December 29, 1945 (59
Stat. 669; Title 22, Sections 288 to 2886 U.S.C.) the U.S. relinquished every
office.
U.C.S. Title 8 – ALIENS AND NATIONALITY § 1101:
(14) The term “foreign state” includes outlying possessions of a foreign state, but
self-governing dominions or territories under mandate or trusteeship shall be
regarded as separate foreign states.
C. JUDGES SERVES AS A DEBT COLLECTORS FOR THE
UNITED STATES FEDERAL CORPORATION
101. All statements and allegations made supra, and in Childress's Affidavit for
Countercomplaint are herein incorporated in their entirety by reference.
102. Judges hold public office under Title 28 U.S.C., Ch. 176, Federal Debt Collection
Procedure:
Title 28, Chapter 176, Federal Debt Collection Procedure, Section § 3002.
As used in this chapter:
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(2) “Court” means any court created by the Congress of the United States,
excluding the United States Tax Court.
(3) “Debt” means—
(A) an amount that is owing to the United States on account of a
direct loan, or loan insured or guaranteed, by the United States; or
(B) an amount that is owing to the United States on account of a
fee, duty, lease, rent, service, sale of real or personal property,
overpayment, fine, assessment, penalty, restitution, damages,
interest, tax, bail bond forfeiture, reimbursement, recovery of a
cost incurred by the United States, or other source of indebtedness
to the United States, but that is not owing under the terms of a
contract originally entered into by only persons other than the
United States;
(8) “Judgment” means a judgment, order, or decree entered in favor of the
United States in a court and arising from a civil or criminal proceeding
regarding a debt.
(15) “United States” means—
(A) a Federal corporation;
(B) an agency, department, commission, board, or other entity of
the United States; or
(C) an instrumentality of the United States.
103. Title 22 U.S.C. § 286. “Acceptance of membership by United States in International
Monetary Fund,” states the following:
The President is hereby authorized to accept membership for the United States in
the International Monetary Fund (hereinafter referred to as the "Fund"), and in the
International Bank for Reconstruction and Development (hereinafter referred to as
the "Bank"), provided for by the Articles of Agreement of the Fund and the
Articles of Agreement of the Bank as set forth in the Final Act of the United
Nations Monetary and Financial Conference dated July 22, 1944, and deposited in
the archives of the Department of State.
104. Title 22 U.S.C. § 286e-13, “Approval of fund pledge to sell gold to provide resources for
Reserve Account of Enhanced Structural Adjustment Facility Trust,” states the following:
The Secretary of the Treasury is authorized to instruct the Fund's pledge to sell, if
needed, up to 3,000,000 ounces of the Fund's gold, to restore the resources of the
Reserve Account of the Enhanced Structural Adjustment Facility Trust to a level
that would be sufficient to meet obligations of the Trust payable to lenders which
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have made loans to the Loan Account of the Trust that have been used for the
purpose of financing programs to Fund members previously in arrears to the
Fund.
D. NOTICE OF FOREIGN STATE STATUS OF THE COURT
105. All statements and allegations made supra, and in Childress's Affidavit for
Countercomplaint are herein incorporated in their entirety by reference.
106. This court, pursuant to the Federal Rules of Civil Procedure (FRCP) Rule 4 (j), is, in fact
and at law, a FOREIGN STATE as defined in Title 28 U.S.C. § 1602, et. Seq., The F.S.I.A. of
1976 (Pub. L. 94-583), and, therefore, lacks jurisdiction in the above referenced case. Childress
places before this Court the following legal definitions and terms:
Foreign Court: The courts of a foreign state or nation. In the United States, this
term is frequently applied to the courts of one of the States when their judgment
or records are introduced in the courts of another.
Foreign jurisdiction: Any jurisdiction foreign to that of the forum; e.g., a sister
state or another country. Also, the exercise by a state or nation jurisdiction beyond
its own territory. Long-arm service of process is a form of such foreign or
extraterritorial jurisdiction.
Foreign laws: The laws of a foreign country, or of a sister state. In conflicts of
law, the legal principles of jurisprudence which are part of the law of a sister state
or nation. Foreign laws are additions to our own laws, and in that respect are
called “jus receptum.”
Foreign corporation: A corporation doing business in one State though chartered
or incorporated in another state is a foreign corporation as to the first state, and, as
such, is required to consent to certain conditions and restrictions in order to do
business in such first state. Under federal tax laws, a foreign corporation is one
which is not organized under the law of one of the States or Territories of the
United States. I.R.C. § 7701 (a) (5). Service of process on foreign corporation is
governed by the Fed. R. Civ. P. 4 See also Corporation.
Foreign service of process: Service of process for the acquisition of jurisdiction
by a court in the United States upon a person in a foreign country is prescribed by
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Fed R. Civ. P. 4 (i) and 28 U.S.C.A. § 1608. Service of process on foreign
corporations is governed by Fed. R. Civ. P. 4(d) (3).
Foreign states: Nations which are outside the United States. Term may also refer
to another state; i.e. a sister state.
Foreign immunity: With respect to jurisdictional immunity of foreign states, see
28 USC, Sec. §1602 et seq. Title 8 USC, Chapter 12, Subchapter I, Sec.
§1101(14) The term “foreign state” includes outlying possessions of a foreign
state, but self-governing dominions or territories under mandate or trusteeship
shall be regarded as separate foreign states.
Profiteering: Taking advantage of unusual or exceptional circumstance to make
excessive profit; e.g. selling of scarce or essential goods at inflated price during
time of emergency or war.
Person: In general usage, a human being (i.e. natural person) though by statute
the term may include a firm, labor organizations, partnerships, associations,
corporations, legal representative, trusts, trustees in bankruptcy, or receivers.
National Labor Relations Act, §2(1).
Definition of the term “person”: under Title 26, Subtitle F, Chapter 75,
Subchapter D, Sec. Sec. §7343 –– The term “person” as used in this chapter
includes an officer or employee of a corporation, or a member or employee of a
partnership, who as such officer, employee or member is under a duty to perform
the act in respect of which the violation occurs. A corporation is a ”person” within
the meaning of equal protection and due process provisions of the United States
Constitution.
107. Childress, the “real party in interest” hereby demands full disclosure of the true and
limited jurisdiction of this court. Any such failure violates 18 U.S.C. §1001, 1505, and 2331.
Fraud is deceit, deception, artifice, or trickery operating prejudicially on the rights
of another, and so intended by so inducing him to part with property or surrender
some legal right. 23 Am J2d Fraud § 2. Anything calculated to deceive another to
his prejudice and accompanying the purpose, whether it be an act, a word, silence,
the suppression of the truth, or other device contrary to the plain rules of common
honesty. 23 Am J2d Fraud § 2. An affirmation of a fact rather than a promise or
statement of intent to do something in the future. Miller v. Sutliff, 241 III 521, 89
N.E. 651.
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108. There are three different and distinct forms of the “United States” as revealed by the
following:
“The high Court confirmed that the term "United States" can and does mean three
completely different things, depending on the context.” Hooven & Allison Co. vs.
Evatt, 324 U.S. 652 (1945) & United States v. Cruikshank, 92 U.S. 542 (1876) &
United States v. Bevans, 16 U.S. 3 Wheat. 336, 336 (1818).
109. The Court and its officers have failed to state which United States they represent, since
they can represent only one, the Federal Debt Collection Procedure, as a corporation, the United
States, Inc., and it’s satellite corporations have no jurisdiction over Childress, an American
Citizen. (See, Penhallow v. Doane's Administrators, infra) Childress, a belligerent claimant,
hereby asserts that he has the right of immunity inherent in the 11th amendment:
“The judicial power shall not be construed to extend to any suit in law or equity,
commenced or prosecuted against one of the United States by citizens of another
state, or by citizens of any Foreign State.”
110. This Court is a business, corporation for profit, a subsidiary of JUDICIARY COURTS OF
THE STATEF OF TEXAS, (DUNS# 36-070-5040) which is a corporate subsidiary of the STATE
OF TEXAS (DUNS# 00-253-7595), evidenced by Dun and Bradstreet Credit Reports. As a result
of this Court's corporate status, it cannot concern itself with Childress, as he is not an artificial
person, rather, is a constituent, member of The People; Childress is tangible, therefore, this Court
cannot obtain parity therewith. This Court can only concern itself with artificial persons, the
intangible and only with corporate persons and the contracts between those persons.
Inasmuch as every government is an artificial person, an abstraction, and a
creature of the mind only, a government can interface only with other artificial
persons. The imaginary, having neither actuality nor substance, is foreclosed from
creating and attaining parity with the tangible. The legal manifestation of this is
that no government, as well as any law, agency, aspect, court, etc. can concern
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itself with anything other than corporate, artificial persons and the contracts
between them. “ S.C.R. 1795, Penhallow v. Doane's Administrators (3 U.S. 54; 1
L. Ed. 57; 3 Dall. 54) Supreme Court of the United States 1795.
111. MUNICIPAL, COUNTY, and STATE COURTS lack jurisdiction to hear any case under
the FOREIGN STATE definitions. The jurisdiction of FOREIGN SOVEREIGN IMMUNITY
lies with the UNITED STATES DISTRICT COURT under the FSIA Statutes pursuant to 28 USC
§ 1330, and not within a County or State Court.
112. Whereas, Childress is a non-corporate entity and is not registered with any Secretary of
State as a CORPORATION, the Prosecution has FAILED to state a claim to which relief can be
granted under Rule 12 (b) (6); it is, therefore, this matter must be dismissed for lack of political,
personal, and subject matter jurisdiction, improper Venue, and under the 11th Amendment
limitations.
113. This court, by definition is a FOREIGN STATE, corporation and is erroneously
proceeding against Childress, a living man, tangible, a constituent, member of The People, who
is not a “person,” which term is a “term of art” meaning: a creature of the law, an artificial
being, and a CORPORATION or ens legis:
“Ens Legis. L. Lat. A creature of the law; an artificial being, as contrasted with a
natural person. Applied to corporations, considered as deriving their existence
entirely from the law.” – Blacks Law Dictionary, 4th Edition, 1951.
114. All complaints and suits against CORPORATIONS, or an ens legis, fall under the
aforementioned FSIA and service of process must therefore be made by the clerk of the court,
under 28 U.S.C. § 1608 (a) (4), 63 stat 111, as amended (22 U.S.C. § 2658) [42 F.R. § 6367, Feb.
2, 1977, as amended at 63 F.R. § 16687, Apr. 6, 1998], to the Director of the Office of Special
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Consular Services in the Bureau of Consular Affairs, Department of State, in Washington, D.C.,
exclusively, pursuant to 22 C.F.R. § 93.1 and § 93.2. A copy of the FSIA must be filed with the
complaint along with “a certified copy of the diplomatic note of transmittal,” and, “the
certification shall state the date and place the documents were delivered.” The foregoing must be
served upon the Chief Executive Officer and upon the Registered Agent of the designated
CORPORATION or FOREIGN STATE.
115. MUNICIPAL, COUNTY, and STATE COURTS lack jurisdiction to hear any case since
they fall under the definition of FOREIGN STATE, and under all related definitions, supra. Said
jurisdiction lies with the “district court of the United States,” established by Congress in the
states under Article III of the Constitution, which are “constitutional courts” and do not include
the territorial courts created under Article IV, Section 3, Clause 2, which are “legislative” courts.
Hornbuckle v. Toombs, 85 U.S. 648, 21 L. Ed. 966 (1873), (See, 28 U.S.C. Rule 1101),
exclusively, under the FSIA Statutes pursuant to 28 U.S.C. § 1330.
116. It is an undisputed, conclusive presumption that Childress is the real party in interest and
is not a CORPORATION, and, further, is not registered with any Secretary of State as a
CORPORATION. Pursuant to Rule 12 (b) (6), the Prosecuting Attorney has failed to state a
claim for which relief can be granted, a fatal defect, and, therefore, the instant case and all
related matters must be DISMISSED WITH PREJUDICE for lack of personal, political, and
subject matter jurisdiction, as well as for improper Venue, as well as pursuant to the 11 th
amendment Foreign State Immunity.
117. Moreover, process in the above referenced case is not “regular on its face. ”Regular on its
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Face – “Process is said to be “regular on its face” when it proceeds from the court, officer, or
body having authority of law to issue process of that nature, and which is legal in form, and
contains nothing to notify, or fairly apprise any one that it is issued without authority.”
E. COURT LACKS JUDICIAL POWER IN LAW OR EQUITY
118. All statements and allegations made supra, and in Childress's Affidavit for
Countercomplaint are herein incorporated in their entirety by reference.
119. Childress points out that a Federal, State, County, or municipal government, corporation
can be sued in its corporate capacity when functioning as federal debt collectors under the Fair
Debt Collection Practices Act (FDCPA) and under the Clearfield Doctrine (See, Clearfield Trust
Co. v. United States, 318 U.S. 363 (1943) ). If the Federal, State, County, or Municipal
government, corporation, can claim immunity under the 11th Amendment, then the Federal, State,
County or municipal government, corporations cannot use Law or Equity jurisdiction against
Childress, or The People, in Court since The People, of which Childress is a member of, are not
subject to a “foreign state” under 28 U.S.C., Judicial Procedure, § 1602 - 1610. The States are
made up of “State Citizens,” and under the 11th Amendment, “State Citizens” cannot be sued by a
“foreign state.”
120. Childress also points out that Article III section 2 and the 11th Amendment of the
Constitution are in conflict. A court cannot convene under Article III equity jurisdiction and then
have its public officers claim 11th amendment immunity. The court is operating in a foreign state
capacity against The People once the court officials take their oath, and the court officials cannot
have it both ways.
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Article III Section 2
The judicial power shall extend to all cases, in law and equity,
arising under this Constitution, the laws of the United States, and
treaties made, or which shall be made, under their authority;—to
all cases affecting ambassadors, other public ministers and consuls;
—to all cases of admiralty and maritime jurisdiction;—to
controversies to which the United States shall be a party;—to
controversies between two or more states;—between a state and
citizens of another state;—between citizens of different states;—
between citizens of the same state claiming lands under grants of
different states, and between a state, or the citizens thereof, and
foreign states, citizens or subjects.
121. The ratification of the Eleventh Amendment on February 7, 1795 effectively altered
Article III Section 2, and now “All” public offices are using the Eleventh Amendment as a
defense against being sued, whereas, the Eleventh Amendment actually removed protection since
judicial power no longer extended to any suit in Law or Equity, and subsequently afforded The
People the same protection as any level of government. The People cannot be charged in Law or
Equity claims by anyone in the government services corporation. The court only has one action
as revealed by the Rules of Civil Procedure: “Rule 2—One form of Action: There is only one
form of action – the civil action.” Civil action can be brought only by The People and not by any
level of government.
Amendment XI
The judicial power of the United States shall not be construed to
extend to any suit in law or equity, commenced or prosecuted
against one of the United States by citizens of another state, or by
citizens or subjects of any foreign state.
122. Childress is aware of the Stripping Doctrine. However, the Constitution was amended
again in 1868 to protect various civil rights, and Section 5 of the 14th Amendment granted
Congress the power to enforce, by appropriate legislation, the provisions of that amendment. The
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courts have recognized that this new amendment, again a consensus of The People, abrogates the
immunity provided by the 11th Amendment. When Congress enacted legislation under the
auspices of Section 5 of the 14th Amendment, they specifically abrogated 11 th Amendment
immunity, and states, as well as, instrumentalities thereof, can, under such federal statutes be
prosecuted in federal court.
123. Childress will refer the Court’s attention to the 1875 Civil Rights Act. The Supreme Court
ruled that this Congressional enactment was unconstitutional. Civil Rights Acts (1866, 1870,
1875, 1957, 1960, 1964, 1968) U.S. legislation. The Civil Rights Act (1866) gave African-
Americans citizenship and extended civil rights to all persons born in the USA (except Native
Americans). The 1870 Act was passed to re-enact the previous measure, which was considered to
be of dubious constitutionality. In 1883, the US Supreme Court declared unconstitutional the
1870 law. The 1875 Act was passed to outlaw discrimination in public places because of race or
previous servitude. The act was declared unconstitutional by the Supreme Court (1883–85),
(U.S. Supreme Court Civil Rights Cases, 109 U.S. 3 (1883) Civil Rights Cases Submitted
October Term, 1882 Decided October 16th, 1888 109 U.S. 3) which stated that the 14th
Amendment, the constitutional basis of the act, protected individual rights against
infringement by the states, not by other individuals. The 1957 Act established the Civil Rights
Commission to investigate violations of the 15th Amendment. The 1960 Act enabled court-
appointed federal officials to protect black voting rights. An act of violence to obstruct a court
order became a federal offense. The 1964 Act established as law equal rights for all citizens in
voting, education, public accommodations and in federally-assisted programs. The 1968 Act
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guaranteed equal treatment in housing and real estate to all citizens.
124. No level of the Executive or Judicial government has ever introduced into any Court
action a real party of interest under Rule 17. The Court has no jurisdiction under Fedearal Rules
of Civil Procedure Rule 12 (b) (1), (2), (3) over Childress or The People.
125. Decision and Rationale: The 8-1 decision of the Court was delivered by Justice Joseph
P. Bradley, with John Marshall Harlan of Kentucky alone in dissent. The Court decided that the
Civil Rights Act of 1875 was unconstitutional. Neither the 13th, nor the 14th amendment
empowers the Congress to legislate in matters of racial discrimination in the private sector.
Bradley wrote, “The 13th Amendment has respect, not to distinctions of race…but to slavery...”
The 14th Amendment, he continued, applied to State, not private, actions; furthermore, the
abridgment of rights presented in this case are to be considered as “ordinary civil injuries” rather
than the imposition of badges of slavery. Bradley commented that “individual invasion of
individual rights is not the subject-matter of the 14th Amendment. It has a deeper and broader
scope. It nullifies and makes void all state legislation, and state action of every kind, which
impairs the privileges and immunities of citizens of the United States, or which injures them in
life, liberty or property without due process of law, or which denies to any of them the equal
protection of the laws.” Therefore, the Court limited the impact of the Equal Protection Clause of
the 14th Amendment.
126. In a court of limited jurisdiction, whenever a party denies that the court has subject-
matter jurisdiction, it becomes the duty and the burden of the party claiming that the court has
subject matter jurisdiction to provide evidence from the record of the case that the court holds
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subject-matter jurisdiction. Bindell v. City of Harvey, 212 Ill. App. 3d 1042, 571 N.E.2d 1017
(1st Dist. 1991) ("the burden of proving jurisdiction rests upon the party asserting it.").
127. Until the party instituting the action submits uncontroversial evidence of subject-matter
jurisdiction to the court that the court has subject-matter jurisdiction, the court is proceeding
without subject-matter jurisdiction. See, Loos v. American Energy Savers, Inc., supra.
F. ADMINISTRATIVE PROCEDURE
UNDER TITLE 5 U.S.C. SUBCHAPTER II
128. All statements and allegations made supra, and in Childress's Affidavit for
Countercomplaint are herein incorporated in their entirety by reference.
129. Title 28, Judiciary and Judicial Procedures, Section 1652 requires the courts to follow
Acts of Congress and all Statutes; Regulations and Statutes at Large are Acts of Congress and
Title 5 of the USC, likewise are the Ruling factors to all Court procedures.
129. This Court is an Article I Administrative Court and lacks judicial power for review per
the Eleventh Amendment. Defendants were required to exhaust administrative remedies before
moving to a judicial review on Childress. Childress was denied administrative remedies which
violates judicial review and the requirement of honest service, for the Court lacks judicial power
to hear this case under the Eleventh Amendment. If the Court should claim it is in fact an Article
3 Court with judicial power under Article 3 section 2, Childress's constitutionally-protected
rights and statutory rights have been violated. The Court has failed to comply with protecting the
rights of Childress that a reasonable person would expect under the Constitution and under the
Bill Rights and the following amendments: First, Fourth, Fifth, Seventh (a suit in common law),
Eighth, Ninth, Tenth, Eleventh, and the Fourteenth.
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130. All "judicial power" of the "inferior courts" comes from the Judiciary Act of 1789, as did
the Attorney General position. "Judicial power" comes from Article III, Section 2 of the
Constitution. The Eleventh Amendment removed all "judicial power" in law, equity, treaties,
contract law, and the right of the State to bring suit against The People. The positions of Attorney
General and Prosecutor, of both the United States and the several states, come under the Judicial
branch not the Executive branch of the government.
131. All attorneys come under the Judicial branch and are judicial officers under the Supreme
Court, not under the Secretary of State as licensed professionals, which means they can only
represent the Court and not The People or the State. The Eleventh Amendment removed all
"judicial power" from the "inferior courts" and the prosecutor’s office as well as from all court
officers in law, equity, and so forth. The Eleventh Amendment also makes a foreign state
separation from the position of the Public Office positions. The People have Eleventh
Amendment immunity, because there is NO "JUDICIAL POWER" of the "inferior courts" and
The People have FOREIGN SOVEREIGN IMMUNITY.
Article III, Sec. 2, U.S. Constitution
“The judicial Power shall extend to all Cases, in Law and Equity, arising under
this Constitution, the Laws of the United States, and Treaties made, or which shall
be made, under their Authority;--to all Cases affecting Ambassadors, other public
ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to
Controversies to which the United States shall be a Party;--to Controversies
between two or more States;--between a State and Citizens of another State;--
between Citizens of different States;--between Citizens of the same State claiming
Lands under Grants of different States, and between a State, or the Citizens
thereof, and foreign States, Citizens or Subjects.”
Eleventh Amendment
“The Judicial power of the United States shall not be construed to extend to any
suit in law or equity, commenced or prosecuted against one of the United States
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by Citizens of another State, or by Citizens or Subjects of any Foreign State.”
132. The Hearing Officer in charge is either aware, or should be aware that the Eleventh
Amendment removed all "Judicial Power" from this Court, turning it into an Administrative
Court and rendering all hearings administrative, with no "judicial power" to rule in OR on law,
equity, treaties, contract law OR issues between the State OR the UNITED STATES and its
People. The Hearing Officer is either aware, or should be aware, that the authority delegated by
Article III, Section 2 of the Constitution for the United States of America was amended and
revoked by the Eleventh Amendment on February 5th, 1795, of which Childress is aware of.
133. The Hearing Officer is also either aware, or should be aware, that the Offices of Attorney
General and Prosecutor were created under the same Judiciary Act as were the "inferior courts."
When the Eleventh Amendment removed "Judicial Power" from the Courts, it also removed
"judicial power" from the prosecution. Any prosecution performed in law, equity, contract law,
treaties or claims by the State against The People now constitutes Putative Fraud and Dishonest
Service due to the salary contract that the public official has with The People to perform its
duties as a Hearing Officer and Prosecution Officer. The contracts of the Public Officers are
private contracts under the Constitution, Article I, II, and III and under the Compensation clause
for services to The People.
134. It is a fact that a pleading cannot be placed before a court without "judicial power" and 12
(b) (1) or 12 (b) (2) of the FRCP and the Civil Rules of Procedure, clearly defines why there is
no "judicial power" before which to make such a pleading. The Petitioner now Demands
dismissal due to lack of judicial power and jurisdiction
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135. This Court and the Hearing Officer may only convene this court as "administrative" under
Congressional mandate S.7, 60 Stat 237, the Administrative Procedure Act of 1946, so that
Childress can set forth such claim of injury under Civil Rights violation, R.I.C.O., threat of a
firearm to compel Childress, threat of extortion, kidnapping, assault with intent to injure,
violation of domestic terrorism, and contract-default violation increasing the public debt.
G. JURISDICTIONS UPON WHICH COURTS CAN OPERATE
136. All statements and allegations made supra, and in Childress's Affidavit for
Countercomplaint are herein incorporated in their entirety by reference.
137. The Federal Rules of Civil Procedures show only one cause of action exists. See, Federal
Rules of Civil Procedure, Rule 2. One form of action.
138. This Court can not force Childress to a plea of not guilty, guilty, or nolo contendere. In a
civil action the rules do not allow it.
139. Federal Rules of Criminal Procedure, Rule 11. Pleas; requires Childress to place a plea
before the court of not guilty, guilty, or nolo contendere. Once The People place such a plea, that
plea now comes under the authority of Title 50, War And National Defense, section 23 under the
Trading With The Enemy Act. The Prosecutor is acting on behalf of THE STATE OF TEXAS
and now is required to provide proof and evidence that such charges "ARE NOT" under the State
of Emergency Clause, and the State of Emergency Banking / Bankruptcy Act of 1933. Any
failure of the Prosecutor to provide such evidence within 10 days of this original filing is grounds
for dismissal with prejudice for non-compliance.
140. The prosecutor has failed to disclose that such a plea would come under the jurisdiction
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of the State of Emergency Clause under Public Law 1, 48 stat 1, and Public law 73-10, 40 stat
411, and under Title 50 Trading With The Enemy Act of Oct 6, 1917, and the Bankruptcy Act
under Public Law 10, Ch 48, 48 stat 112.
141. There are the three jurisdictions upon which the court may operate:
First: Article III, section 2, clause 1. However, by Act of Congress and the
States ratifying the 11th Amendment the Courts have no Judicial power to hear
any case in Law, Equity, or a Controversy created by the State against any Citizen
of the United States. This Court is clearly operating outside any Article III
capacity of the Constitution for the united States of America.
Second: Administrative jurisdiction, which involves a Department, Agency
or an Administrative office as defined in 5 U.S.C. § 101 executive branch, 28
U.S.C., § 451 or in which case Childress can only be a Plaintiff, in such action per
the intent and Act of Congress as an administrative hearing is to hear complaints
about such executive offices.
Third: The State of Emergency and the Bankruptcy Act clauses create
jurisdiction under Senate Report 93-549, Trading With The Enemy Act, under
Title 50 War and National Defense, Section 23, “Jurisdiction of United States
courts and judges.” Under the State of Emergency the UNITED STATES is the
trustee along with all public offices / officers. (See above cite 63C Am.Jur.2d,
Public Officers and Employees, §247).
142. Any action under the State of Emergency is governed by General Order 100, the Lieber
Code, and UCMJ Title 10, Section 333, and per Army Regulation 840-10 Section 8.1, 8.2, and
8.3. again under Title 50 War & National Defense.
143. The prosecution has failed to state a claim to which relief could be granted as pursuant to
Rule 12 (b) (6) and the Rules of Court mandated by the "Rules Enabling Act" created by
Congress. (Ch. 651, Pub.L. 73-415, 48 Stat. 1064, enacted June 19, 1934 28 U.S.C., § 2072)
a) Pursuant to this Court's procedure, defined in the TEXAS CODE OF CRIMINAL
PROCEDURE, there is required, but which is absent, a sworn affidavit of probable cause that is
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to be attached to a judicial determination of probable cause which shall be forwarded to the
office of the Clerk of Court. Only the un-sworn, inadmissible, aggravated perjury appears in the
case file.
b) Defendants Bell, Robles, Mahoney, Turner, Parra, Hays, and Scott are NEW
BRAUNFELS Police Officers acting on behalf of the STATE OF TEXAS in the COUNTY OF
COMAL, and are Revenue Agents and cannot summons Childress or The People to court as they
are members of the executive branch, therefore they are involved in the simulation of judicial
process by the issuing of fraudulent charging instruments and unqualified arrests and jailings are
“assuming an office without qualifying.”
c) Cause # “COMPLAINT”, as well as, 2014CR1548 are fraudulent charging instruments
as they state, on behalf of the STATE OF TEXAS in the COUNTY OF COMAL, Defendants
Bell, Robles, Mahoney, Turner, Parra, Hays, and Scott are Revenue Agents that claim they had
probable cause to believe that Childress violated law. It is a well settled matter at law, that
officers deal only in a reasonable suspicion and that probable cause is a judicial determination.
The charging instrument is prima facie evidence that NBPD Defendants, officers of the NEW
BRAUNFELS POLICE DEPARTMENT, are committing a crime by the issuance of same, and
are acting outside, and under color of, law by making an un-sworn judicial determination of
probable cause.
d) SCOTUS defines bills of attainder as follows: (Definition) A legislative act that singles
out an individual or group (American Citizens) for punishment without a trial. The Constitution
of the United States, Article I, Section 9, paragraph 3 provides that: "No Bill of Attainder or ex
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post facto Law will be passed." The Bill of Attainder Clause was intended not as a narrow,
technical (and therefore soon to be outmoded) prohibition, but rather as an implementation of the
separation of powers, a general safeguard against legislative exercise of the judicial function or
more simply - trial by legislature." U.S. v. Brown, 381 U.S. 437, 440 (1965)..."These clauses of
the Constitution are not of the broad, general nature of the Due Process Clause, but refer to rather
precise legal terms which had a meaning under English law at the time the Constitution was
adopted. A bill of attainder was a legislative act that singled out one or more persons and
imposed punishment on them, without benefit of trial. Such actions were regarded as odious by
the framers of the Constitution because it was the traditional role of a court, judging an
individual case, to impose punishment." William H. Rehnquist, The Supreme Court, page
166..."Bills of attainder, ex post facto laws, and laws impairing the obligations of contracts, are
contrary to the first principles of the social compact, and to every principle of sound
legislation. ...The sober people of America are weary of the fluctuating policy which has directed
the public councils. They have seen with regret and indignation that sudden changes and
legislative interferences, in cases affecting personal rights, become jobs in the hands of
enterprising and influential speculators, and snares to the more-industrious and less-informed
part of the community." James Madison, Federalist Number 44, 1788. Supreme Court cases
construing the Bill of Attainder clause include:
Ex Parte Garland, 4 Wallace 333 (1866).
Cummings v. Missouri, 4 Wallace 277 (1866).
U.S. v. Brown, 381 U.S. 437 (1965).
Nixon v. Administrator of General Services, 433 U.S.425 (1977).
Selective Service Administration v. Minnesota PIRG, 468 U.S. 841
(1984).
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e) The Prosecutor has failed to allege facts sufficient to show that any person has suffered
any harm or are or has been threatened with any harm as a result of the matter alleged in the
“complaint” or have a Corpus delicti that has been injured.
f) Childress holds standing under the 1st, 4th, 5th, 6th, 7th, 8th, 9th & 10th Articles of the
Bill of Rights to bring this issue before the Court and to have it dismissed with prejudice as
neither the prosecutor, nor Defendants Bell, Robles, Mahoney, Turner, Parra, Hays, and Scott
have come into compliance with any Acts of Congress or Texas legislative Acts.
H. ONUS PROBANDI
144. All statements and allegations made supra, and in Childress's Affidavit for
Countercomplaint are herein incorporated in their entirety by reference.
145. The law places the duty and burden of subject-matter jurisdiction upon the initiating
party, in the instance case, Defendants. Should the court attempt to place the burden upon
Childress the court has acted against the law and in violation of Due Process rights of Childress,
and the judge under court decisions would immediately lose subject-matter jurisdiction. In a
court of limited jurisdiction, the court must proceed exactly according to the law or statute under
which it operates. Flake v. Pretzel, 381 Ill. 498, 46 N.E. 2D 375 (1943). ("the actions, being
statutory proceedings... were void for want of power to make them.") ("The judgments were
based on orders which were void because the court exceeded its jurisdiction in entering them.
Where a court, after acquiring jurisdiction of a subject matter, as here, transcends the limits of
the jurisdiction conferred, its judgment is void."); Armstrong v. Obucino, 300 Ill. 140, 143, 133
N.E. 58 (1921). ("The doctrine that where a court has once acquired jurisdiction it has a right to
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decide every question which arises in the cause, and its judgment or decree, however erroneous,
cannot be collaterally assailed, is only correct when the court proceeds according to the
established modes governing the class to which the case belongs and does not transcend in the
extent and character of its judgment or decree the law or statute which is applicable to it.") –– In
Interest of M.V., 288 Ill. App. 3d 300, 681 N.E.2d 532 (1st Dist. 1997). ("Where a court's power
to act is controlled by statute, the court is governed by the rules of limited jurisdiction, and courts
exercising jurisdiction over such matters must proceed within the strictures of the statute."); In re
Marriage of Milliken, 199 Ill. App. 3d 813, 557 N.E.2d 591 (1st Dist. 1990). ("The jurisdiction
of a court in a dissolution proceeding is limited to that conferred by statute."); Vulcan Materials
Co. v. Bee Const. Co., Inc., 101 Ill. App. 3d 30, 40, 427 N.E.2d 797 (1st Dist. 1981). ("Though a
court be one of general jurisdiction, when its power to act on a particular matter is controlled by
statute, the court is governed by the rules of limited jurisdiction.").
146. "There is no discretion to ignore that lack of jurisdiction." –– Joyce v. U.S., 474
F.2d 215. "A universal principle as old as the law is that a proceedings of a court without
jurisdiction are a nullity and its judgment therein without effect either on person or
property." –– Norwood v. Renfield, 34 C 329; Ex parte Giambonini, 49 P. 732.
"Jurisdiction is fundamental and a judgment rendered by a court that does not have
jurisdiction to hear is void ab initio." –– In Re Application of Wyatt, 300 P. 132; Re
Cavitt, 118 P2d 846. "Thus, where a judicial tribunal has no jurisdiction of the subject
matter on which it assumes to act, its proceedings are absolutely void in the fullest sense
of the term." –– Dillon v. Dillon, 187 P. 27. "A court has no jurisdiction to determine its
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own jurisdiction, for a basic issue in any case before a tribunal is its power to act, and a
court must have the authority to decide that question in the first instance." –– Rescue
Army v. Municipal Court of Los Angeles, 171 P. 2d. 8; 331, U.S. 549, 91 L. ed. 1666, 67
S. Ct. 1409. "A departure by a court from those recognized and established requirements
of law, however close apparent adherence to mere form in method of procedure, which
has the effect of depriving one of a constitutional right, is an excess of jurisdiction." ––
Wuest v. Wuest, 127 P. 2d. 934, 937. "Where a court failed to observe safeguards, it
amounts to denial of due process of law, court is deprived of juris." –– Merritt v. Hunter,
C.A., Kansas 170 F.2d 739. "the fact that the petitioner was released on a promise to
appear before a magistrate for an arraignment, that fact is circumstance to be considered
in determining whether in first instance there was a probable cause for the arrest." ––
Monroe v. Papa, D.C., Ill. 1963, 221 F Supp 685. “Jurisdiction, once challenged, is to be
proven, not by the court, but by the party attempting to assert jurisdiction. The burden of
proof of jurisdiction lies with the asserter.” See, McNutt v. GMAC, 298 U.S. 178. The
origins of this doctrine of law may be found in Maxfield's, Lessee v. Levy, 4 U.S. 308. "A
court has no jurisdiction to determine its own jurisdiction, for a basic issue in any case
before a tribunal is its power to act, and a court must have the authority to decide that
question in the first instance." –– Rescue Army v. Municipal Court of Los Angeles, 171 P.
2d. 8; 331 U.S. 549, 91 L. ed. 1666, 67 S. Ct. 1409. "Once jurisdiction is challenged, the
court cannot proceed when it clearly appears that the court lacks jurisdiction, the court
has no authority to reach merits, but, rather, should dismiss the action." –– Melo v. U.S.,
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505 F. 2d. 1026. "The law provides that once State and Federal jurisdiction has been
challenged, it must be proven." –– Main v. Thiboutot, 100 S. Ct. 2502 (1980). "Once
jurisdiction is challenged, it must be proven." –– Hagens v. Lavine, 415 U.S. 533. "Where
there is absence of jurisdiction, all administrative and judicial proceedings are a nullity
and confer no right, offer no protection, and afford no justification, and may be rejected
upon direct collateral attack." –– Thompson v. Tolmie, 2 Pet. 157, 7 L. Ed. 381; Griffith
v. Frazier, 8 Cr. 9, 3L. Ed. 471. "No sanctions can be imposed absent proof of
jurisdiction." –– Standard v. Olsen, 74 S. Ct. 768; Title 5 U.S.C., Sec. 556 and 558 (b).
"The proponent of the rule has the burden of proof." –– Title 5 U.S.C., Sec. 556 (d).
"Jurisdiction can be challenged at any time, even on final determination." –– Basso v.
Utah Power & Light Co., 495 2nd 906, at 910. “Mere good faith assertions of power and
authority (jurisdiction) have been abolished.” –– Owens v. The City of Independence, 445
U.S. 622 (1980). "A departure by a court from those recognized and established
requirements of law, however close apparent adherence to mere form in method of
procedure, which has the effect of depriving one of a constitutional right, is an excess of
jurisdiction." –– Wuest v. Wuest, 127 P. 2d 934, 937. “In a court of limited jurisdiction,
whenever a party denies that the court has subject-matter jurisdiction, it becomes the duty
and the burden of the party claiming that the court has subject matter jurisdiction to
provide evidence from the record of the case that the court holds subject-matter
jurisdiction.” –– Bindell v City of Harvey, 212 Ill. App. 3d. 1042, 571 N.E.2d 1017 (1st
Dist. 1991) ("the burden of proving jurisdiction rests upon the party asserting it."). “Until
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the plaintiff submits uncontroversial evidence of subject-matter jurisdiction to the court
that the court has subject-matter jurisdiction, the court is proceeding without subject-
matter jurisdiction.” –– Loos v. American Energy Savers, Inc., 168 Ill. App. 3d. 558, 522
N.E. 2D 841(1988) ("Where jurisdiction is contested, the burden of establishing it rests
upon the plaintiff.").
VI. LACK OF POLITICAL AND CIVIL CONTRACTUAL JURISDICTION
147. All statements and allegations made supra, and in Childress's Affidavit for
Countercomplaint are herein incorporated in their entirety by reference.
148. Childress, hereby challenges the Political and civil contractual Jurisdiction of the
Charging parties, i.e., Defendants, such being the Executive Branch of the STATE OF TEXAS,
not to this Court.
149. It is the responsibility of the Executive Branch of the STATE OF TEXAS, to present its
proof, from its existing files, that it has in some manner, in conformance to the restriction set
forth and established in the Thirteenth Amendment to the Federal Constitution, that the STATE
OF TEXAS has gained a voluntary agreement by Childress to be subservient to the Political or
civil contractual Jurisdiction of the STATE OF TEXAS.
150. As STATE OF TEXAS has no ability to establish that it has political or civil contractual
jurisdiction over Childress, as is required of STATE OF TEXAS, under the prohibition of
involuntary servitude mandate, established in the Thirteenth Amendment to the Federal
Constitution, neither the prosecutor, nor this Court has standing to proceed; likewise, neither
standing to inquire of Childress as to his political or civil contractual status, for this Court to do
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so would indicate this court to be biased against Childress, in favor of Defendants. Such action
would constitute a violation of the Separation Of Powers Doctrine, and disqualify the judge of
this Court from any further participation in this matter.
151. The following citations establish that when jurisdiction (of any manner), is challenged, it
must be proved, on the record, by the moving party, in the instant case, Defendants, are who
acting under color of the Executive Branch of the STATE OF TEXAS, not by the judge of this
Court.
A court may not render a judgment which transcends the limits of its authority,
and a judgment is void if it is beyond the powers granted to the court by the law
of its organization, even where the court has jurisdiction over the parties and the
subject matter. Thus, if a court is authorized by statute to entertain jurisdiction in a
particular case only, and undertakes to exercise the jurisdiction conferred in a case
to which the statute has no application, the judgment rendered is void. 46 Am. Jur.
2d, Judgments § 25, pp. 388-89.
The lack of statutory authority to make particular order or a judgment is akin to
lack of subject matter jurisdiction and is subject to collateral attack. 46 Am. Jur.
2d, Judgments § 25, pp. 388-89.
“A void judgment is to be distinguished from an erroneous one, in that the latter is
subject only to direct attack. A void judgment is one which, from its inception,
was a complete nullity and without legal effect.” Lubben v. Selective Service
System, 453 F.2d 645, 649 (1st Cir. 1972)
“A judgment rendered by a court without personal jurisdiction over the defendant
is void. It is a nullity. [A judgment shown to be void for lack of personal service
on the defendant is a nullity.]” Sramek v. Sramek, 17 Kan. App. 2d 573, 576-77,
840 P.2d 553 (1992), rev. denied 252 Kan. 1093 (1993).
"Where there are no depositions, admissions, or affidavits the court has no facts to
rely on for a summary determination." Trinsey v. Pagliaro, D.C. Pa. 1964, 229 F.
Supp. 647.
"A court cannot confer jurisdiction where none existed and cannot make a void
proceeding valid. It is clear and well established law that a void order can be
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challenged in any court", Old Wayne Mut. L. Assoc. v. Mcdonough, 204 U.S. 8,
27 S. Ct. 236 (1907).
"The law is well-settled that a void order or judgement is void even before
reversal", Valley v. Northern Fire & Marine Ins. Co., 254 u.s. 348, 41 S. Ct. 116
( 1920 ).
“Courts are constituted by authority and they cannot go beyond that power
delegated to them. If they act beyond that authority, and certainly in contravention
of it, their judgements and orders are regarded as nullities ; they are not voidable,
but simply void, and this even prior to reversal." Williamson v. Berry, 8 HOW.
945, 540 12 L. Ed. 1170, 1189 ( 1850 ).
“Once jurisdiction is challenged, the court cannot proceed when it clearly appears
that the court lacks jurisdiction, the court has no authority to reach merits, but
rather should dismiss the action." Melo v. U.S., 505 F 2d 1026.
"There is no discretion to ignore lack of jurisdiction." Joyce v. U.S., 474 2D 215.
"The burden shifts to the court to prove jurisdiction." Rosemond v. Lambert, 469
F 2d 416.
"Court must prove on the record, all jurisdiction facts related to the jurisdiction
asserted." Latana v. Hopper, 102 F.2d 188; Chicago v. New York 37 F Supp. 150.
"The law provides that once State and Federal Jurisdiction has been challenged, it
must be proven." Main v. Thiboutot, 100 S. Ct. 2502 (1980).
"Jurisdiction can be challenged at any time." Basso v. Utah Power & Light Co.,
495 F 2d 906, 910.
"Defense of lack of jurisdiction over the subject matter may be raised at any time,
even on appeal." Hill Top Developers v. Holiday Pines Service Corp., 478 So. 2d.
368 (Fla 2nd DCA 1985).
"Court must prove on the record, all jurisdiction facts related to the jurisdiction
asserted. "Lantana v. Hopper, 102 F.2d 188; Chicago v. New York, 37 F. Supp.
150.
"Once challenged, jurisdiction cannot be assumed, it must be proved to exist."
Stuck v. Medical Examiners, 94 Ca 2d 751. 211 P2d 389.
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"Jurisdiction, once challenged, cannot be assumed and must be decided." Maine v.
Thiboutot, 100 S. Ct. 250.
“The law requires proof of jurisdiction to appear on the record of the
administrative agency and all administrative proceedings." Hagans v. Lavine, 415
U.S. 533.
“A judgment obtained without jurisdiction over the defendant is void.” Overby v.
Overby, 457 S.W.2d 851 (Tenn. 1970). Volume 20: Corpus Juris Sec. § 1785.
“Challenge to court's jurisdiction is raised by motion to dismiss,” Criterion Co. v.
State, 458 So. 2d. 22 (Fla 1st DCA 1984.
“Since jurisdiction is fundamental, and it is jurisdiction alone that gives a court
power to hear, determine, and pronounce judgment on the issues before it,
jurisdiction must be continuing in the court throughout the proceedings,” Re.
Cavitt, 254 P.599
“Since jurisdiction is fundamental to any valid judicial proceeding, the first
question that must be determined by a trial court in any case is that of
jurisdiction” Dillon v. Dillon, 187 P,27.
152. It is clearly self evident that the Thirteenth Amendment to the Federal Constitution causes
the admonitions in these 23 appellate court cases to apply reasonably, in this instant case, to the
Defendants, the Executive Branch of the STATE OF TEXAS, and NOT to directly to this Court.
However, as a subdivision of the STATE OF TEXAS, neither the prosecutor, nor this Court has
standing to proceed against Childress, unless and until, the Executive Branch of the STATE OF
TEXAS presents its proof, from its files existing at the time of and on the date Childress was
wrongly charged, that such STATE then had and now has properly gained Political and, or civil
contractual Jurisdiction over Childress. And that the STATE OF TEXAS has gained such
jurisdiction in full compliance with, and not in violation of, the restrictions established in the
Thirteenth Amendment to the Federal Constitution.
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153. The STATE OF TEXAS (through either its Administrative/Judicial Branch or its
Executive Branch), does not have standing to interrogate Childress in order to establish that it
had Political or civil contractual jurisdiction over him at the time and date Childress was wrongly
charged by the issuing officer(s), Defendants, of the STATE OF TEXAS, through NEW
BRAUNFELS police department, and certainly do not have standing to attempt to establish such
jurisdiction to be effective at this late date.
154. The STATE OF TEXAS must present its proof from its existing files, and if the it claims
to have such proof, such must be presented to Childress in writing, and he must be accorded a
reasonable opportunity to subpoena witnesses and gather evidence in opposition.
155. It is a foregone conclusion that the Executive Branch of the Government of STATE OF
TEXAS will not be able to present any acceptable proof, and any proof that it might present
would have been obtained through fraudulent inducement, not through any honorable and
forthright means.
156. In consideration of the foregoing, this Court has no option, other than to dismiss all
charges lodged against Childress by the Executive Branch of the Government of the STATE OF
TEXAS.
157. Let this Court be informed, it has no standing to enter any plea, and any such plea, in any
event would be void and of no effect, and would remain so unless and until the Executive Branch
of the STATE OF TEXAS presents to Childress, its written proof that it has properly obtained
any manner or form of jurisdiction over Childress, as is required under the Federal Thirteenth
Amendment and the 23 appellate court case citations, supra.
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158. The relationship of standing of Childress to the STATE OF TEXAS is a political issue
based on STATE OF TEXAS compliance with the Federal Thirteenth Amendment, it is not a
judicial issue. This Court does not have standing to determine the political status of Childress.
159. This is true because the political status of everyone can only be determined by the
voluntary act of each individual, based on their own individual choice, as is clearly established in
the prohibition of involuntary servitude, set forth and established in the Thirteenth Amendment
to the Federal Constitution.
160. The burden of proof is on the Defendants, to present proof from existing files, that they
gained political or civil jurisdiction over Childress without violating the prohibition of
involuntary servitude recognized and incorporated into the Federal Constitution, in the
Thirteenth Amendment thereto.
161. Childress, being Wrongly Accused, states that the charges lodged against him, must be
dismissed due to the fact that STATE OF TEXAS has no legitimate claim of Political or Civil
contractual Jurisdiction over me.
162. Due to the fact that it will not be possible for the Executive Branch of the STATE OF
TEXAS to present proof, in conformance with the Federal Thirteenth Amendment, that the
STATE OF TEXAS has properly gained either Political or Civil Contractual Jurisdiction over
Childress, Childress will not present himself, as he has no duty or obligation to do so,
“...there is a clear distinction [] between an individual and a corporation, and that
the latter has no right to refuse to submit its books and papers for an examination
at the suit of the state. The individual may stand upon his constitutional rights as a
citizen. He is entitled to carry on his private business in his own way. His power
to contract is unlimited. He owes no duty to the state or to his neighbors to
divulge his business, or to open his doors to an investigation, so far as it may tend
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to criminate him. He owes no such duty to the state, since he receives nothing
therefrom, beyond the protection of his life and property. His rights are such as
existed by the law of the land long antecedent to the organization of the state, and
can only be taken from him by due process of law, and in accordance with the
Constitution. Among his rights are a refusal to incriminate himself, and the
immunity of himself and his property from arrest or seizure except under a
warrant of the law. He owes nothing to the public so long as he does not trespass
upon their rights. Hale v. Henkel, 201 U.S. 43 (1906).
to this Court unless and until the Executive Branch of the STATE OF TEXAS presents to
Childress its proof that it has such dominion over Childress, which is not able to be refuted,
thereby. Childress will not offer up jurisdiction to this court by making an appearance, therein.
163. Let this Court and the STATE OF TEXAS be hereby advised, should the Executive
Branch of the STATE OF TEXAS present such proof to Childress, in writing, that cannot be
refuted, Childress will then conform to any order of this Court.
VII. DECLARATION OF STATUS AND RIGHT OF AVOIDANCE
163. All statements and allegations made supra, and in Childress's Affidavit for
Countercomplaint are herein incorporated in their entirety by reference.
164. Childress, is “the real party in interest” and holds the status of a “foreign state” as defined
in 28 U.S.C. § 1603 (b) (1), as “a separate legal person, corporate or otherwise,” (in the instant
case, “otherwise”), (b) (2), “an organ (a vital part) of a foreign state” and (b) (3), “neither a
citizen of a State of the United States as defined in section 1332(c)” (a corporation, an insurer, or
the legal representative of a decedent, an infant or an incompetent), “nor created under the laws
of any third country.”
165. Further, Childress, the “real party in interest” is not an artificial, corporate “person” as
defined and created by PUBLIC STATUTES, and is not a juristic person which may be
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“affected” by PUBLIC STATUTES; but, is invested with and bears the status, condition and
character of “a sovereign without subjects.” Childress, the “real party in interest” is always and
at all times present in his “asylum home state,” which is “the common case of the place of birth,
domicilium originis,” also referred to as Natural Domicile, which is “the same as domicile of
origin or domicile by birth,” (See Johnson v. Twenty-One Bales, 13 Fed. Cas. 863; Black’s Law
Dictionary, 4th ed.), which is the source and the seat of his sovereignty and immunity.
166. Accordingly, Childress, the “real party in interest” holds Right of Avoidance and right to
reject the offered commercial venture and to decline to fuse with or to animate an artificial
person, or to stand as STRAWMAN [PERSON], which is defined in Barron’s Law Dictionary,
4th edition, (1996), as “a term referred to in commercial and property contexts when a transfer is
made to a third party, the strawman [person], simply for the purpose of retransferring to the
transferor in order to accomplish some purpose not otherwise permitted,” i.e., obtaining
jurisdiction over Childress, the “real party in interest” or relying upon the rebutable presumption
that Childress, the “real party in interest” is a corporation. The definition also contains the
admonition to “See dummy,” which, at that entry is therein defined as “a strawman; a sham.”
Childress, is neither a strawman, nor a sham, and is certainly not a dummy.
167. This DECLARATION OF STATUS constitutes a conclusive presumption, of which the
court is bound to take NOTICE, that Childress, the “real party in interest” is not a corporation;
and, the court can exercise no jurisdiction whatsoever over the “real party in interest” or in the
above referenced case, but is duty-bound according to the due process of the law, to which the
above-mentioned “real party in interest” is a belligerent claimant, and by the Rule of Law to
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DISMISS, QUASH.
VIII. TABLES OF AUTHORITIES: PERSON
168. All statements and allegations made supra, and in Childress's Affidavit for
Countercomplaint are herein incorporated in their entirety by reference.
“PERSON”
"This word ‘person’ and its scope and bearing in the law, involving, as it does,
legal fictions and also apparently natural beings, it is difficult to understand; but it
is absolutely necessary to grasp, at whatever cost, a true and proper understanding
to the word in all the phases of its proper use... A person is here not a physical or
individual person, but the status or condition with which he is invested... not an
individual or physical person, but the status, condition or character borne by
physical persons... The law of persons is the law of status or condition." –
American Law and Procedure, Vol. 13, page 137, 1910.
169. The following are Maxims of Law, Doctrines for Statutory Interpretation of terms:
Ejusdem Generis: Of the same kind, class, or nature. In the construction of laws,
wills, and other instruments, the "ejusdem generis rule" is, that where general
words follow an enumeration of persons or things, by words of a particular and
specific meaning, such general words are not to be construed in their widest
extent, but are to be held as applying only to persons or things of the same general
kind or class as those specifically mentioned. Black, Interp. of Laws, 141;
Goldsmith v. U. S., C.C.A.N.Y., 42 F.2d 133, 137; Aleksich v. Industrial Accident
Fund, 116 Mont. 69, 151 P.2d 1016, 1021. The rule, however, does not necessarily
require that the general provision be limited in its scope to the identical things
specifically named. Nor does it apply when the context manifests a contrary
intention. The maxim "ejusdem generis," is only an illustration of the broader
maxim, "noscitur a sod's." State v. Western Union Telegraph Co., 196 Ala. 570, 72
So. 99, 100. Black's Law, 4th Ed.
Noscitur a Sociis: It is known from its associates. 1 Vent. 225. The meaning of a
word is or may be known from the accompanying words. 3 Term R. 87; Broom,
Max. 588. Morecock v. Hood, 202 N.C. 321, 162 S.E. 730, 731; Louis Pizitz Dry
Goods Co. v. Fidelity & Deposit Co. of Maryland, 223 Ala. 385, 136 So. 800,
801. The doctrine means that general and specific words are associated with and
take color from each other, restricting general words to sense analogous to less
general. Dunham v. State, 140 Fla. 754, 192 So. 324, 325, 326. Black's Law, 4th
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Ed.
Expressio unius est exclusio alterius: Expression of one thing is the exclusion of
another. Co.Litt. 210a; Burgin v. Forbes, 293 Ky. 456, 169 S.W.2d 321, 325;
Newblock v. Bowles, 170 Oki. 487, 40 P.2d 1097, 1100. Mention of one thing
implies exclusion of another. Fazio v. Pittsburgh Rys. Co., 321 Pa. 7, 182 A. 696,
698; Saslaw v. Weiss, 133 Ohio St. 496, 14 N.E.2d 930, 932. When certain
persons or things are specified, in a law, contract, or will, an intention to exclude
all others from its operation may be inferred. Little v. Town of Conway, 171 S.C.
27, 170 S.E. 447, 448. Under this maxim, if statute specifies one exception to a
general rule or assumes to specify the effects of a certain provision, other
exceptions or effects are excluded, People v. One 1941 Ford 8 Stake Truck,
Engine No. 99T370053, License No. P.8410, Cal., 159 P.2d 641, 642. Black's
Law, 4th Ed.
170. The following case citations declares the undisputed distinction in fact and at law of the
distinction between the term “persons,” which is the plural form of the term “person,” and the
word “People” which is NOT the plural form of the term “person.” The above-mentioned “real
party in interest” is NOT a subordinate “person,” “subject,” or “agent,” but is a “constituent,” in
whom sovereignty abides, a member of the “Posterity of We, The People,” in whom sovereignty
resides, and from whom the government has emanated:
"The sovereignty of a state does not reside in the persons who fill the different
departments of its government, but in the People, from whom the government
emanated; and they may change it at their discretion. Sovereignty, then in this
country, abides with the constituency, and not with the agent; and this remark is
true, both in reference to the federal and state government." (Persons are not
People) –– Spooner v. McConnell, 22 F. 939, 943;
"Our government is founded upon compact. Sovereignty was, and is, in the
people" –– Glass v. Sloop Betsey, supreme Court, 1794.
"People of a state are entitled to all rights which formerly belong to the King, by
his prerogative." –– supreme Court, Lansing v. Smith, 1829.
“The United States, as a whole, emanates from the people... The people, in their
capacity as sovereigns, made and adopted the Constitution... "–– supreme Court, 4
Wheat 402.
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"The governments are but trustees acting under derived authority and have no
power to delegate what is not delegated to them. But the people, as the original
fountain might take away what they have delegated and entrust to whom they
please... The sovereignty in every state resides in the people of the state and they
may alter and change their form of government at their own pleasure." –– Luther
v. Borden, 48 U.S. 1, 12 L.Ed 581.
"While sovereign powers are delegated to... the government, sovereignty itself
remains with the people” –– Yick Wo v. Hopkins, 118 U.S. 356, page 370.
"There is no such thing as a power of inherent sovereignty in the government of
the United States... In this country sovereignty resides in the people, and Congress
can exercise no power which they have not, by their Constitution entrusted to it:
All else is withheld." –– Julliard v. Greenman, 110 U.S. 421.
"In common usage, the term 'person' does not include the sovereign, and statutes
employing the word are ordinarily construed to exclude it." –– Wilson v. Omaha
Indian Tribe, 442 U.S. 653, 667 (1979).
"Since in common usage the term ‘person’ does not include the sovereign, statutes
employing that term are ordinarily construed to exclude it." –– U.S. v. Cooper, 312
U.S. 600,604, 61 S. Ct 742 (1941).
"In common usage, the term ‘person’ does not include the sovereign and statutes
employing it will ordinarily not be construed to do so." –– U.S. v. United Mine
Workers of America, 330 U.S. 258, 67 S. Ct 677 (1947).
"Since in common usage, the term ‘person’ does not include the sovereign,
statutes employing the phrase are ordinarily construed to exclude it." –– US v.
Fox, 94 U.S. 315.
"In common usage the word ‘person’ does not include the sovereign, and statutes
employing the word are generally construed to exclude the sovereign." –– U.S. v.
General Motors Corporation, D.C. Ill, 2 F.R.D. 528, 530.
171. The following case citations declare the undisputed doctrine, in fact and at law, that the
word (term of art) “person” is a “general word,” and that the “people,” of whom the above-
mentioned “real party in interest” is one, “are NOT bound by general words in statutes;”
therefore, statutes do not apply to, operate upon or affect the above-mentioned “real party in
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interest:”
"The word ``person' in legal terminology is perceived as a general word which
normally includes in its scope a variety of entities other than human beings. ––
Church of Scientology v. US Department of Justice, 612 F.2d 417, 425 (1979);
"The people, or sovereign are not bound by general words in statutes,
restrictive of prerogative right, title or interest, unless expressly named. Acts of
limitation do not bind the King or The People. The People have been ceded all the
rights of the King, the former sovereign... It is a maxim of the common law, that
when an act is made for the common good and to prevent injury, the King shall be
bound, though not named, but when a statute is general and prerogative right
would be divested or taken from the King (or The People) he shall not be bound."
–– The People v. Herkimer, 4 Cowen (NY) 345, 348 (1825): "In the United States,
sovereignty resides in people.” –– Perry v. U.S., (294 U.S. 330). "A Sovereign is
exempt from suit, not because of any formal conception or obsolete theory, but on
the logical and practical ground that there can be no legal Right as against the
authority that makes the law on which the Right depends." –– Kawananakoa v.
Polyblank, 205 U.S. 349, 353, 27 S. Ct. 526, 527, 51 L. Ed. 834 (1907).
IX. COUNTERCOMPLAINT
172. All statements and allegations made supra, and in Childress's Affidavit for
Countercomplaint are herein incorporated in their entirety by reference.
Fed. R. Civ. Proc.
RULE 2. ONE FORM OF ACTION
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There is one form of action -- the civil action
Tex. C. Crim. Proc.
Art. 27.02. DEFENDANT'S PLEADINGS. The pleadings and motions of the
defendant shall be:
(8) Any other motions or pleadings that are by law permitted to be filed.
Fed. R. Civ. Proc.
Rule 7. Pleadings Allowed; Form of Motions and Other Papers
(a) Pleadings. Only these pleadings are allowed:
(1) a complaint;
(2) an answer to a complaint;
(3) an answer to a counterclaim designated as a counterclaim;
(4) an answer to a crossclaim;
Fed. R. Civ. Proc.
Rule 13. Counterclaim and Crossclaim
(a) Compulsory Counterclaim.
(1) In General. A pleading must state as a counterclaim any claim that—at
the time of its service—the pleader has against an opposing party if the
claim:
(A) arises out of the occurrence that is the subject matter of the
opposing party's claim; and
(B) does not require adding another party over whom the court
cannot acquire jurisdiction.
Tex. R. Civ. Proc.
RULE 97. COUNTERCLAIM AND CROSS-CLAIM
(a) Compulsory Counterclaims. A pleading shall state as a counterclaim any claim
within the jurisdiction of the court, not the subject of a pending action, which at
the time of filing the pleading the pleader has against any opposing party, if it
arises out of the transaction or occurrence that is the subject matter of the
opposing party's claim and does not require for its adjudication the presence of
third parties of whom the court cannot acquire jurisdiction; provided, however,
that a judgment based upon a settlement or compromise of a claim of one party
to the transaction or occurrence prior to a disposition on the merits shall not
operate as a bar to the continuation or assertion of the claims of any other party to
the transaction or occurrence unless the latter has consented in writing that said
judgment shall operate as a bar.
See also: Clark v. Baines, 84 P.3d 245 - Wash: Supreme Court 2004
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“...where any state proceeds against a private individual in a judicial forum it is
well settled that the state, county, municipality, etc. waives any immunity to
counters, cross claims and complaints, by direct or collateral means regarding the
matters involved.” --Luckenback v. The Thekla, 295 F 1020, 226 U.S. 328;
Lyders v. Lund, 32 F2d 308; Dexter v. Kunglig J., 43 F2d 705, 282 U.S. 896; U.S.
v. N.C.B.N.Y., 83 F2d 236, 106 A.L.R. 1235, affirmed; Russia v. BTC, 4 F Supp
417, 299 U.S. 563.
173. This doctrine includes, but is not limited to, challenges to personal, subject matter and
territorial jurisdiction, as well as to claims that the forum is not judicial in nature but merely
administrative or that the court is proceeding, improperly, against a private individual under the
rebuttable presumption that the private individual is a corporate entity or an artificial person
upon which the Public Statutes operate, apply or affect.
174. Furthermore, it is undisputed that the state is acting in its capacity as a commercial entity
and is liable for damages according to the following definition of “SOVEREIGN IMMUNITY.”
"The state may nevertheless be held liable where the injurious activity was
'proprietary' rather than 'governmental', i.e., where the injury was caused by the
state acting in its capacity as a commercial entity rather than that of sovereign.”
--Barron’s Law Dictionary, 4th edition (1996).
175. As stated supra, any failure or refusal to disclose the true jurisdiction is a violation of 15
Statutes at Large, Chapter 249 (section 1), enacted July 27, 1868.
Case Law confirms:
"And Mr. Justice Miller, delivering the opinion of the court [legislating from the
bench, in this case], in analyzing the first clause [of the Fourteenth Amendment],
observed that “the phrase ‘subject to the jurisdiction thereof’ was intended to
exclude from its operation children of ministers, consuls, and citizens or subjects
of foreign states, born within the United States." --U.S. v. Wong Kim Ark, 169
U.S. 649, 18 S. Ct. 456; 42 L. Ed. 890 (1898).
176. Absent lawful process, absent show cause hearing, and absent Fourth Amendment
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affidavit and warrant, on September 4, 2014, NEW BRAUNFELS POLICE DEPARTMENT and
COMAL COUNTY JAIL officials, employees, agents, and high managerial agents have attacked
and are attacking the Childress by force of arms and false allegations whereby Childress has
suffered and is suffering injury, including, but not limited to the following:
• Absent Fourth Amendment Warrant:
• Unreasonable Search and Seizures
• 5th Amendment Just Compensation
• 5th Amendment Compel Witness
• 13th Amendment Involuntary Servitude
• Kidnappings
• Trafficking in Persons
• Breach of Fiduciary Duty
• Retaliation and Extortion
• False Arrests
• False Imprisonments
• Brutalities, Injuries, and Torture
• Aggravated Assaults
• Felony Breach of Oaths
• Fraud in original case
• Libel
• Bad Faith/ Unclean Hands
• Denial of Due Process
• Denial of Access to the Court
• T.P.C. 2.01 Proof Beyond a Reasonable Doubt
• T.P.C. 6.01 Requirement of Voluntary Act or Omission
• T.P.C. 7.01 Parties to Offenses
• T.P.C. 7.02 Criminal Responsibility for Conduct of Another
• T.P.C. 7.03 Defenses Excluded
• T.P.C. 7.22 Criminal Responsibility of Corporation or Association
• T.P.C. 7.23 Criminal Responsibility of Person for Conduct in Behalf of
Corporation Or Association
• T.P.C. 15.02 Criminal Conspiracy
• T.P.C. Chapter 20 Kidnapping and Unlawful Restraint
• T.P.C. 22.01 Assault
• T.P.C. 22.02 Aggravated Assault
• T.P.C. 31.03 (a),(b),(b)(1),(c)(1), and (f) Theft
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• T.P.C. 31.09 Aggregation of Amounts Involved in Theft
• T.P.C. 32.48 Simulating Legal Process
• T.P.C. 36.06 Obstruction or Retaliation
• T.P.C. 37.04 Materiality
• T.P.C. 37.09 Tampering With or Fabricating Physical Evidence
• T.P.C. 37.10 Tampering With Governmental Record
• T.P.C. 37.11 Impersonating Public Servants
• T.P.C. 39.01 Abuse of Office
• T.P.C. 39.02 Abuse of Official Capacity
• T.P.C. 71.02 Engaging in Organized Criminal Activity
177. Injuries were caused by Defendant Schoch, in concert and collusion with NEW
BRAUNFELS POLICE DEPARTMENT and COMAL COUNTY JAIL officials, employees,
agents, or high managerial agents including but not limited to:
Defendants Bell, Robles, Mahoney, Turner, Parra, Hays Garrison and Scott; and
others as yet unknown
178. Defendant Schoch acted in concert and collusion with Defendants Bell, Robles,
Mahoney, Turner, Parra, Hays Garrison, Scott and employees and, or agents, (jailers) as yet
unknown, of COMAL COUNTY JAIL for the purposes of hiding criminal acts that allowed the
torture and assault of Childress and to cause him to suffer various indignities, while separated
from society.
179. Defendants Bell, Robles, Mahoney, Turner, Parra, Hays and Scott are “peace officers”
and know or should know that their conduct is felony breach of oath, as well as being contrary to
the International Covenant on Civil and Political Rights upon which the United States is a
signatory party.
180. “Peace Officers” are responsible to know the law and cannot claim ignorance of the law.
181. Defendants collectively, and employees and, or agents, (jailers) as yet unknown, of
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COMAL COUNTY JAIL have acted in concert and collusion and in criminal conspiracy in
relentless malicious and unmeritorious persecution of Childress.
182. Defendants collectively, and employees and, or agents, (jailers) as yet unknown, of
COMAL COUNTY JAIL, are liable for the above stated issues and may be sued pursuant to the
Texas Tort Claims Act, Deceptive Trade Practices Act (Commercial Venture), 42 U.S.C. § 1983,
18 U.S.C. § 1962 RICO, but not necessarily limited thereto.
X. PLEADING SHALL BE CONSTRUED TO DO JUSTICE
183. All statements and allegations made supra, and in Childress's Affidavit for
Countercomplaint are herein incorporated in their entirety by reference.
"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 R. Co., 151 Fed 2nd 240; Pucket v. Cox, 456 2nd 23
"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
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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.
184. I am not an expert in the law, however I do know that the Bible teaches right from wrong.
Congress Declares Bible "The Word Of God"
Oct. 4, 1982, Public Law 97-280, 96 STAT. 1211, 97th Congress
If there is any human being damaged by any statements herein, if he will inform me by facts I
will sincerely make every effort to amend my ways. I hereby and herein reserve the right to
amend and make amendment to this document as necessary in order that the truth may be
ascertained and proceedings justly determined. If the parties given notice by means of this
document have information that would controvert and overcome this Affidavit, please advise me
in written Affidavit form within thirty (30) from receipt hereof providing me with your counter
affidavit, proving with particularity by stating all requisite actual evidentiary fact and all
requisite actual law, and not merely the ultimate facts or conclusions of law, that this Affidavit
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Statement is substantially and materially my status and factual declarations. Your silence stands
as consent to, and tacit approval of, the factual declarations herein being established as fact as a
matter of law.
185. Reserving all unalienable birthrights and Covenantal blessings promised, waiving none,
ever. This document is prepared in compliance to the 9th Commandment, the law of Falsity.
XI. NOTICE TO CURE
186. All statements and allegations made supra, and in Childress's Affidavit for
Countercomplaint are herein incorporated in their entirety by reference.
187. The above facts give Defendant Schoch, NBPD Defendants, the New Braunfels Police
Department and Comal County good faith NOTICE AND OPPORTUNITY to cure.
188. Childress, hereby states a Claim, against Defendants Schoch, Bell, Robles, Mahoney,
Turner, Parra, Hays, Scott, and employees and, or agents, (jailers) as yet unknown, of the New
Braunfels Police Department and COMAL COUNTY, and their marital relations, jointly and
severally, where it applies, for damages, pursuant to Trezevant v. City of Tampa, 741 F.2d 336
(1984), adjusted for inflation:
$ 3,566,347.20 per day $ 148,597.80 per hour $ 2,476.63 per minute
XII. NOTICE OF INTENT TO SUE
189. All statements and allegations made supra, are herein incorporated in their entirety by
reference.
190. Defendants collectively, as well as, NEW BRAUNFELS POLICE DEPARTMENT and
COMAL COUNTY are hereby, and herein given notice, that failure to pay the Claim within
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AFFIDAVIT OF COUNTERCOMPLAINT
thirty days of receipt of this notice as to damages inflicted will force suit for damages.
XIII. RECTUM ROGARE
191. All statements and allegations made supra, and in Childress's Affidavit for
Countercomplaint are herein incorporated in their entirety by reference.
192. The facts and the law contained herein are the Truth; and said Truths are held to be self-
evident; and self-evident Truths are undisputed and incontrovertible, therefor, no oral argument is
requested, for no words can alter or overcome these Truths; Truth is Sovereign: She comes from
God and bears His message, from whatever quarter her great eyes may look down upon you;
Psalms 117:2; John 8:32; II Corinthians. 13:8; THEREFORE; this court must perform its duty
under the Rule of Law, do Justice, Rectum Rogare, and Dismiss, and, or QUASH and
immediately thereby expunge, the instatant cause / case without delay for, “Justice delayed is
Justice denied.” Rectum Rogare - "to do right; to petition the judge to do right." –– Black's Law
Dictionary, 4th edition.
193. AMENDATORY RECONSTRUCTION ACT OF MARCH 11, 1868. An Act, to amend
the act passed March 23, 1867, entitled "An Act supplementary to 'An act to provide for the more
efficient government of the rebel states,' passed March 2, 1867, and to facilitate their restoration.
194. SUPPLEMENTARY RECONSTRUCTION ACT OF FORTIETH CONGRESS. An Act,
supplementary to an act, entitled: "An act to provide for the more efficient government of the
rebel states," passed March 2, 1867, and to facilitate restoration." This act created the 14th
amendment federal citizen under section 3 of the federal constitution.
195. All who hold public office fall under section 3 as UNITED STATES citizens. Those who
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hold office have knowingly and willingly given up their citizenship to this country, The
Continental united States, under 8 U.S.C. § 1481 to become a foreign state agent under 22
U.S.C.. The oath of office to the constitution requires office-holders to uphold and maintain our
Constitutional form of government under The People’s authority. This right was never
surrendered by The People; failure to do so violates, including, but not limited to: 10 U.S.C. §
333 and 18 U.S.C. § 1918, chapter 115 § 2382, § 2383, § 1505, § 1001, § 241, § 242, 42 U.S.C. §
1981 and 31 U.S.C. §3729.
196. The Federal Debt Collection Procedure places all courts under equity and commerce and
under the International Monetary Fund (IMF). The IMF comes under the Uniform Commercial
Code (U.C.C.) under banking and business interest and Trust laws. This makes the Court/Judges
trustee over the trust and responsible whether or not the Childress understands the trust issue.
The 1933 bankruptcy act placed all public officials in a fiduciary position to write off the public
debt, since this Nation is not solvent. The TWEA suspended the U.S. Constitution in the court
room, and therefore, the standard American flag in the courtroom was replaced with a military
Admiralty flag for dealing with alien enemy residents. The People never rescinded their
nationality to the real united States of America. Those who hold public office rescinded their
nationality to become a foreign agent in order to hold public office. International law requires the
judge to uphold The People’s Constitutional form of government as defined in the “Federalist
Papers”.
197. Federal Rules of Civil Procedure Rule 2 only allows civil action, and under Rule 17, a
real party of interest has to be present in the courtroom in order for there to be any claims of
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injury or damages against “the people.” Any charges under the “UNITED STATES” or “THE
STATE OF…” fall under the TWEA Section 23. The People are not subject to this jurisdiction as
it is a Foreign State jurisdiction. The People hold 11th amendment immunity to claims in equity
and commerce from a foreign state. The courts lack jurisdiction over the Childress by
Congressional mandate. For the aforestated reasons, the Defendants, Prosecutor and this Court
lack jurisdiction under FRCP Rule 4(j) & 12(b) (1), (2), (3), (4), (5), (6) over Childress.
Adversarial System:
Mack vs. City of Detroit, Chief Justice Cavanagh, No. 118468, 2002.
"The adversarial system ensures the best presentation of arguments and theories
because each party is motivated to succeed. Moreover, the adversarial system
attempts to ensure that an active judge refrain from allowing a preliminary
understanding of the issues to improperly influence the final decision. This allows
the judiciary to keep an open mind until the proofs and arguments have been
adequately submitted. In spite of these underlying concerns, the majority today
claims that the benefits of full briefing are simply a formality that can be
discarded without care. The majority fails to comprehend how the skilled
advocates in this case could have added anything insightful in the debate over the
proper interpretation of a century's worth of precedent. Whatever its motivation,
the majority undermines the foundations of our adversarial system.”
198. Childress, is covered under Title 18 § 4 Misprision of felony & Title 31 USC §3729 False
Claims as Whistle-blowers.
TITLE 18, Part I, Chapter 1, § 4 Misprision of felony.
Whoever, having knowledge of the actual commission of a felony cognizable by a
court of the United States, conceals and does not as soon as possible make known
the same to some judge or other person in civil or military authority under the
United States, shall be fined under this title or imprisoned not more than three
years, or both.
TITLE 31, Subtitle III, Chapter 37, Subchapter III. § 3729. False claims.
(a) Liability for Certain Acts. Any person who —
(1) knowingly presents, or causes to be presented, to an officer or employee of the
United States Government or a member of the Armed Forces of the United States
a false or fraudulent claim for payment or approval;
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(2) knowingly makes, uses, or causes to be made or used, a false record or
statement to get a false or fraudulent claim paid or approved by the Government;
(3) conspires to defraud the Government by getting a false or fraudulent claim
allowed or paid;
TITLE 31, Subtitle III, Chapter 37, Subchapter III. § 3730 Civil actions for false
claims.
(b) Actions by Private Persons —
(1) A person may bring a civil action for a violation of section 3729 for the person
and for the United States Government. The action shall be brought in the name of
the Government. The action may be dismissed only if the court and the Attorney
General give written consent to the dismissal and their reasons for consenting
199. These are the laws as we know them – clear, precise and written by those with superior
knowledge of the law “LAWYERS”, not The People. The People cannot be held accountable if
there is a failure to clarify or if it is “incomprehensible, baseless assertions and citations to
disjointed and,or irrelevant legal authority, grammatically, logically and legally
incomprehensible, frivolous and unintelligible” or a conflict in the laws. This then goes back to
those “LAWYERS” who created this conflict in law to be held accountable. Any failure for the
judge to adhere is a violation under 18 U.S.C. § 1001, 1346, 1505, 2331 and 10 U.S.C. § 333 and
which would result in a violation of the PATRIOT ACT, SECTION 800, HOME LAND
SECUIRTY, thereafter, other Departments would have to be notified of such domestic terrorism.
As a matter of law and as matter of the record.
Page 87 of 89
ATFIDAYIT OF' COUNTERCOMPLAINT
ALL RIGHTS RESERYED TO AMEND WMEOUT LEAVE OT'COURI
YERITICAION
Executed without the United States:
I, Jason Truman Childresq do declarg certi$/, veri$ and state underpenalty of perjury
under the laws of the United States ofAmerica that I am a living marL of lawful age and
competerit to testify, and that I have personal knowledge of the foregoing facts which are true
and correct, based upon my knowledge and beliet which knowledge and belief I believe to be
true.
Pursuant to 28 U.S. Code $ 17a6 @)
Executedonthis j8,rA dayof (Y-braL of2015.
Jason Childress
914l Gristmill Ct.
Fort Worttr, Texas
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AFtr'IDAYIT OF COUNTERCOMPLAINT
CERTIFICATE OF SERVICE
I, Jason Truman Childress, Sui Juris (not Pro Se), hereby certify, under penalty of perjury
under the laws of the United States of America, without the federal corporation, "United Stated',
28 U.S.C. $ 3002 (15), that I am at least l8 years of agq am a Denizen to the United States of
America, and that I personally served the following document(s):
L Aflidavit for Countercoplaint
2. AFTIDAYIT OT COUNTTRCOMPLAINT
3. TABLE OFAUTHORITES: POLICE REPORTSARE IIEARSAY
4. TABLE OFAUTHORITIES: VOID JUDGMENTS
by placing one true and correct copy of said document(s) via Register Mail, Return Receipt to
the following:
Kevin M. Schoch
3619 Hawthorne Trl.
Rockwall, TX75032
*Notice to Principal is Notice to Agent,
Notice to Agent is Notice to Principal.*
Tom Wibert, Chief of Policq
Principal to, & Respondeat
Superior for, NBPD Defendants
1488 South Seguin Avenue
New Braunfels, TX 78130
Abigail LaneWhitaker
Comal Counly Courthouse Annex
150 N. Seguin Ave., Ste. 307
New Braunfels, TX 78130
Submiued this f 3rd day of P1a-c k . zots.
Jason Childress
9141 Gristmill Cl
Fort Worttq Texas
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APPENDIX
TAB L
TABLE OF AUTHORITIES:
POLICE REPORTS ARE HEARSAY
Fischer v. State, NO. PD-0043-07, COURT OF CRIMINAL APPEALS OF
TEXAS, January 16, 2008, Delivered:
Both the federal and Texas hearsay rules have always excluded the crime-scene or
investigation observations of law enforcement officers because their factual
observations, opinions, and narrations are made while the officer is 'engaged in
the often competitive enterprise of ferreting out crime'.” (quoting, Johnson v.
United States, 333 U.S. 10, 14, 68 S. Ct. 367, 92 L. Ed. 436 (1948). “Rule 803(8)
(B) expressly excludes '[r]ecords, reports, statements, or data compilations setting
forth matters observed by police officers and other law enforcement personnel' in
a criminal case.29
29. Fed.R.Evid. 803(8)(B);  Tex.R. Evid. 803(8)(B). Of course,
Rule 803(8)(B) does not necessarily apply to law-enforcement
reports that are prepared in a non-adversarial setting, that are
unrelated to any specific litigation, and that record objective,
neutral observations. See Pondexter v. State, 942 S.W.2d 577, 585
(Tex.Crim.App.1996) (“We know that the reason for Federal Rule
of Evidence 803(8)(B), after which the Texas rule was modeled,
was the presumed unreliability of observations that are made by
officers at the scene of a crime,” but stating that when police
officer was performing his ordinary, routine duties of recording the
property that was taken in and out of the police property room, his
observations and notations should be presumed reliable;  matters
observed or recorded by police officers are admissible under Rule
803(8)(B) if the observations are made and recorded in a
ministerial manner);
The reason for this exclusion is the inherently adversarial nature of any on-the-
scene or post hoc investigation of a criminal suspect.30
30....Cole v. State, 839 S.W.2d 798, 811-12 (Tex.Crim.App.1992)
(op. on reh'g) (quoting the legislative history of Fed.R.Evid. 803(8)
(B) which based the exclusion of police reports on the fact that
they are created in an adversarial setting: “ ‘Police reports,
especially in criminal cases, tend to be one-sided and self-serving.
They are frequently prepared for the use of prosecutors, who use
such reports in deciding whether to prosecute.’ ”);  United States v.
Quezada, 754 F.2d 1190, 1193-94 (5th Cir.1985) (stating that the
hearsay rule excluding police offense reports “is based in part on
1 of 4
TABLE OF AUTHORITIES:
POLICE REPORTS ARE HEARSAY
the presumed unreliability of observations made by law
enforcement officials at the scene of a crime, or in the course of
investigating a crime,” and noting that “a number of courts have
drawn a distinction for purposes of Rule 803(8)(B) between law
enforcement reports prepared in a routine, non-adversarial setting,
and those resulting from the arguably more subjective endeavor of
investigating a crime and evaluating the results of that
investigation”).
Congress explained the rationale for the rule excluding factual observations by
investigating police officers from the public records exception to the hearsay rule:
Ostensibly, the reason for this exclusion is that observations by police officers at
the scene of the crime or the apprehension of the defendant are not as reliable as
observations by public officials in other cases because of the adversarial nature of
the confrontation between the police and the defendant in criminal cases.
In United States v. Quezada, 754 F.2d 1190, 1193-94 (5th Cir.1985) the Fifth Circuit
distinguished between public records that are generated in a routine and ministerial manner and
police reports that are generated in an adversarial setting. The Fifth Circuit has concluded that
“Rule 803(8) is designed to permit the admission into evidence of public records prepared for
purposes independent of specific litigation.” (emphasis added). And the Fifth Circuit stated that
the hearsay rule excluding police offense reports “is based in part on the presumed unreliability
of observations made by law enforcement officials at the scene of a crime, or in the course of
investigating a crime,” and noting that “a number of courts have drawn a distinction for purposes
of Rule 803(8)(B) between law enforcement reports prepared in a routine, non-adversarial
setting, and those resulting from the arguably more subjective endeavor of investigating a crime
and evaluating the results of that investigation.”
The “Police Report” generated in this case was done so in the spirit of preparing for
2 of 4
TABLE OF AUTHORITIES:
POLICE REPORTS ARE HEARSAY
specific litigation. The purpose of this exception is to allow reliable documents into evidence;
since police reports are inherently unreliable when created in this context, use of the Hearsay,
“Police Reports” to establish a factual background is improper at best, and at worst a complete
disregard for law (Fed. R. Evid.).
The “Police Report” is an untrustworthy document and should not be used make factual
findings to form a background.
“...factual findings, which are based on inadmissible hearsay, are not admissible
under Rule 803(8)(C) because the underlying information is untrustworthy."
Complaint of Paducah Towing Co., Inc. (United States v. Paducah Towing Co.,
Inc.), 692 F.2d 412, 420-21 (6th Cir. 1982). See also Miller v. Caterpillar Tractor
Co., 697 F.2d 141, 144 (6th Cir. 1983) (court did not abuse discretion in refusing
to admit as untrustworthy a document that relied upon hearsay statements of
witnesses made to the investigator). Other courts have reached similar
Conclusions when faced with analogous situations. See cases cited in Complaint
of Paducah Towing Co., Inc., 692 F.2d at 421. For example, in Parsons v.
Honeywell, Inc., 929 F.2d 901, 907 (2d Cir. 1991), the Second Circuit held:
[31] [A statement of a third party] is plainly not admissible merely
because contained in a police report. "It is well established that
entries in a police report which result from the officer's own
observations and knowledge may be admitted but that statements
made by third persons under no business duty to report may not."
United States v. Pazsint, 703 F.2d 420, 424 (9[th] Cir. 1983)
(emphasis added).” (Id.)
The “Police Report” used by Ezra is defined, pursuant to Fed. R. Evid., Rule 801., as
Hearsay.
United States v. Oates, 560 F.2d 45 (2nd Cir.1977):
“As the rules of evidence now stand, police and law enforcement
reports are not admissible against defendants in criminal cases.
This is made quite clear by the provisions of rule 803(8)(B) and
(C).
3 of 4
TABLE OF AUTHORITIES:
POLICE REPORTS ARE HEARSAY
120 Cong.Rec. H12254 (daily ed. Dec. 18, 1974). This unequivocal language
shows that it was Representative Hungate's understanding, and he was as familiar
with the legislation as anyone else in Congress,[26] that the language retained in
FRE 71*71 803(8)(B) and (C) meant that those provisions had the effect of
rendering absolutely inadmissible against defendants in criminal cases the "police
reports" of item (B) and the "evaluative reports" of item (C).
... it [is] manifest that it was the clear intention of Congress to make evaluative
and law enforcement reports absolutely inadmissible against defendants in
criminal cases.
...we perceive to be clear congressional intent that reports not qualifying under
FRE 803(8)(B) or (C) should, and would, be inadmissible against defendants in
criminal cases...”
...a police report . . . is an exception to the new hearsay rules when introduced at
the request of the defense." 521 F.2d at 969 n.24.
4 of 4
APPENDIX
TAB M
TABLE OF AUTHORITIES:
LAW OF VOIDS IN TEXAS
Judicial action taken after the trial court's plenary power has expired is void. See State ex. rel
Latty v. Owens, 907 S.W.2d 484, 486 (Tex. 1995); see also Mapco, Inc. v. Forrest, 795 S.W.2d
700, 703 (Tex. 1990) (defining a void judgment as one rendered when a court has no jurisdiction
over the parties or subject matter, no jurisdiction to render judgment, or no capacity to act as a
court).
A party affected by void judicial action need not appeal. State ex rel. Latty, 907 S.W.2d at 486.
If an appeal is taken, however, the appellate court may declare void any orders the trial court
signed after it lost plenary power over the case.. "A void judgment is a nullity from the
beginning, and is attended by none of the consequences of a valid judgment. It is entitled to no
respect whatsoever because it does not affect, impair, or create legal rights." Ex parte Seidel, 39
S.W.3d 221, 225 (Tex. Crim. App. 2001).
Only void convictions are subject to collateral attack. Christian v. State, 865 S.W.2d 198, 201
(Tex. App.-Dallas 1993, pet. ref'd) (challenge to voidable error in conviction, raised on appeal
from revocation order, was impermissible collateral attack).
A Void Judgment Is a Void Judgment Is a Void Judgment-Bill of Review and Procedural Due
Process in Texas, 40 Baylor L. Rev. 367, 378-79 (1988). See Thomas, 906 S.W.2d at 262
(holding that trial court has not only power but duty to vacate a void judgment).
A judgment is void only when it is clear that the court rendering judgment had no jurisdiction
over the parties or subject matter, no jurisdiction to render judgment, or no capacity to act as a
court. When appeal is taken from a void judgment, the appellate court must declare the judgment
void. Because the appellate court may not address the merits, it must set aside the trial court's
judgment and dismiss the appeal. A void judgment may be attacked at any time by a person
whose rights are affected. See El-Kareh v. Texas Alcoholic Beverage Comm'n, 874 S.W.2d 192,
194 (Tex. App.--Houston [14th Dist.] 1994, no writ); see also Evans v. C. Woods, Inc., No. 12-
99-00153-CV, 1999 WL 787399, at *1 (Tex. App.--Tyler Aug. 30, 1999, no pet. h.).
A void judgment is a "nullity" and can be attacked at any time. Deifik v. State, No. 2-00-443-CR
(Tex.App. Dist.2 09/14/2001)
"A void judgment is a nullity from the beginning, and is attended by none of the consequences of
a valid judgment. It is entitled to no respect whatsoever because it does not affect, impair, or
create legal rights." Since the trial court's dismissal "with prejudice" was void, it may be attacked
either by direct appeal or collateral attack Ex parte Williams, No. 73,845 (Tex.Crim.App.
04/11/2001).
1 of 3
TABLE OF AUTHORITIES:
LAW OF VOIDS IN TEXAS
"A void judgment is a nullity from the beginning, and is attended by none of the consequences of
a valid judgment. It is entitled to no respect whatsoever because it does not affect, impair, or
create legal rights." Ex parte Spaulding, 687 S.W.2d at 745 (Teague, J., concurring).
Since the trial court's dismissal "with prejudice" was void, it may be attacked either by direct
appeal or collateral attack. See Ex parte Shields, 550 S.W.2d at 675 a void judgment can be
collaterally attacked. See Glunz v. Hernandez, 908 S.W.2d 253, 255 (Tex. App.-San Antonio
1995, writ denied); Tidwell v. Tidwell, 604 S.W.2d 540, 542 (Tex. Civ. App.- Texarkana 1980, no
writ) (finding that a void judgment may be collaterally attacked by a suit to set aside the
judgment after it has become final if such void judgment becomes material). We agree. A
collateral attack is any proceeding to avoid the effect of a judgment which does not meet all the
requirements of a valid direct attack. See Glunz, 908 S.W.2d at 255. There is neither a set
procedure for a collateral attack nor a statute of limitations. See Glunz, 908 S.W.2d at 255; Davis
v. Boone, 786 S.W.2d 85, 87 (Tex. App.-San Antonio 1990, no writ).
Collateral attacks may be only used to set aside a judgment which is void, or which involved
fundamental error. See Glunz, 908 S.W.2d at 255. Fundamental error for this purpose means
cases where the record shows the court lacked jurisdiction or that the public interest is directly
and adversely affected as that interest is declared in the statutes or the Constitution of Texas. See
id. The cases distinguish between judgments which are void, and therefore may be set aside by a
collateral attack, and those which are voidable and must be attacked by a valid direct attack. See
id. A judgment is void if it is shown that the court lacked jurisdiction 1) over a party or the
property; 2) over the subject matter; 3) to enter a particular judgment; or 4) to act as a court.
Jurisdiction could not be conferred by waiver or retroactively ELNA PFEFFER ET AL. v.
ALVIN MEISSNER ET AL. (11/23/55) 286 S.W.2d 241.
Strictly speaking a void judgment is one which has no legal force or effect whatever. It is an
absolute nullity and such invalidity may be asserted by any person whose rights are affected, at
any time and at any place. It need not be attacked directly, but may be attacked collaterally
whenever and wherever it is interposed. Usually it carries the evidence of its invalidity upon its
face, while a voidable judgment is one apparently valid, but in truth wanting in some material
respect; in other words, one that is erroneous. Such vice may be the want of jurisdiction over the
person or other similar fundamental deficiency, but which vice does not affirmatively appear
upon the face of the judgment.'"BILLY DUNKLIN v. A. J. LAND ET UX. 297 S.W.2d 360
(12/21/56).
Where a void judgment has been rendered and the record in the cause, or judgment roll, reflects
the vice, then the court has not only the power but the duty and even after the expiration of the
term to set aside such judgment. Harrison v. Whiteley, Tex.Com.App., 6 S.W.2d 89. This court in
2 of 3
TABLE OF AUTHORITIES:
LAW OF VOIDS IN TEXAS
Neugent v. Neugent, Tex.Civ.App., 270 S.W.2d 223, followed and applied the rule announced in
the Harrison-Whiteley case. The Supreme Court, speaking through Folley, Commissioner, in
Bridgman v. Moore, 143 Tex. 250, 183 S.W.2d 705, at page 707, said: "The court has not only
the power but the duty to vacate the inadvertent entry of a void judgment at any time, either
during the term or after the term, with or without a motion therefore."
We will not extend this discussion further than to state that we here reaffirm the holding on the
point involved as announced by Justice Hightower in the former appeal (301 S.W.2d 181). While
this holding was premature in view of the action of the Supreme Court (304 S.W.2d 265)
reversing our holding, it was not upon the points discussed in Justice Hightower's opinion, but
was on the point that since the judgment appealed from was an interlocutory one and not final,
the appeal should be dismissed. However, we think our holding then is now appropriate. A void
judgment has been termed mere waste paper, an absolute nullity; and all acts performed under it
are also nullities. Again, it has been said to be in law no judgment at all, having no force or
effect, conferring no rights, and binding nobody. It is good nowhere and bad everywhere, and
neither lapse of time nor judicial action can impart validity. Commander v. Bryan, 123 S.W.2d
1008, (Tex.Civ.App., Fort Worth, 1938, n.w.h.); 34 Tex.Jur., Sec. 262, page 177; Maury v.
Turner, 244 S.W. 809, (Tex.Com.App., 1922).
Also, a void judgment has been defined as "one which has no legal force or effect, invalidity of
which may be asserted by any person whose rights are affected at anytime and at any place
directly or collaterally." Black's Law Dictionary; Reynolds v. Volunteer State Life Ins. Co., 80
S.W.2d 1087, (Tex.Civ.App., Eastland, 1935, writ ref.); Gentry v. Texas Department of Public
Safety, 379 S.W.2d 114, 119, (Tex.Civ.App., Houston, 1964, writ ref., n.r.e., 386 S.W.2d 758).
It has also been held that "It is not necessary to take any steps to have a void judgment reversed,
vacated, or set aside. It may be impeached in any action direct or, collateral.' Holder v. Scott, 396
S.W.2d 906, (Tex.Civ.App., Texarkana, 1965, writ ref., n.r.e.).
3 of 3
APPENDIX
TAB N
TT
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r. Complete itqps 1, 2, and 3. Also complete
iteft 4 if Restricted Delivery is desired.
r Print your name and address on the reverse
so that we can return the card to you. B.'.Received by (Printed Name)
I Attach this card to the back of the mailpiece,
or on the front if space permits.
D, ls delivery address different from item 1? Yes
1. Article Addressed to: lf YES, enter delivery address below:
Clcrk- { the- Cour+,
B"tsi e Uo.eP
G-a\ G,^ntv (ourt + L"tod 3. Se-rvice Type
\sO fi*l' N. A.,.., trc.tot {C"rtiti"d lrrt.it" EI Priority Mail Express'"
ot.; &"i+\s, -lrxas'lt\3
EI Registered E Return Receipt for Merchandise
E Insured Mail E Collect on Delivery
4. Restricted Delivery? (Ertra Fee) E Yes
2. Article Number
(Transfer from seruice label) ?01,3 3ue[ EEIll eEEe ],5t]1
Form.381 1, .tuty zots Domestic Return Receipt
-PS
APPENDIX
TAB O
ru
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(Endorsement Reqlired)
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ru
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t
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item 4 if Restricted Delivery is desired. E Agent
I Print your name and address on the reverse
so that we can return the card to you.
r Attach this card to the back of the mallpiece, .L5'
or on the front if space permits.
ls ii6livery add-ress different from item 1? n- Yes
1. Article Addressed to: lf YES, enter delivery address below: dto
(crt"t', n' a.V,ocX
3rtq k\ao r\ T.\.
Type
-txt1 [| Certified Mailo E Priority Mail Express'"
E Registered El Return Fleceipt for Merchandise
E lnsured Mail E Collect on Delivery
4. Restricted Delivery? @*n Fee) E Yes
2. Article Number
(fransfer fro m servi ce I ab e l)
7UI3 tEeu EIlul, EteE l,r+EE
: PS Form 3811 , .tuty zotg Domestic Return Receipt
APPENDIX
TAB P
Ir
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rffiffirffiilxffiffi* ffiffiffi
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Postage $ 15.?S 0179 ,..,,,
ru
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Certilied Feo
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E (Endorsement Required) ig,ft Here
E Bestrictsd Delivery F6e
(Endorsement Required) *0"00
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r €ompleteltems 1, 2, and 3. Also complete A. Signature
item 4 if Restricted Delivery is desired.
r Print your name and address on the reverse
so that we can return the card to you.
I Attach this card to the back of the mailpiece,
or on the front if space permits.
D. ls delivery address different fromiteir tZ E Yes
1. Article Addressed to: below: E No
tlt{ ,\
lf YES, enter delivery address
?o\tce,
1b.-, lDtb483 U.S. 372] in the statute (See,
United States v. Dial,757 F.2d 163, 168 (7th Cirl985)), includes the deliberate
concealment of material information in a setting of fiduciary obligation. A public
official is a fiduciary toward the public, including, in the case of a judge, the
litigants who appear before him and if
he deliberately conceals material
information from them, he is guilty of fraud. McNally v United States,483 U.S.
3s0 (1987).
Page I of7
DEMAND T'OR DISMISSAL
COMES NOW, Jason Childress, hereinafter, Childress, and Demand Dismissal of the
charge againsthim and the above referenced Cause No. upon the following grounds:
1. WHEREAS, On March 25, this court and all parties associated with the above referenced
Cause No. were served with Childress' Affidavit for Countercoplaint, AX'FIDAVIT OF'
COUNTERCOMPLAINT, TABLE OT AUTHORITES: POLICE REPORTS ARE
IIEARSAY And TABLE OFAUTHORITIES: VOID JUDGMENTS.
2. WHEREAS, within Childress'AI'FIDAVIT Ox. COITNTERCOMPLAINT this court's
jurisdiction over the above referenced Cause No. was directly challenged.
3. WHEREAS, indisputable proof has not been made or presented by any of the burdened
parties which would prove this court does in fact and in law have jurisdiction over the above
referenced Cause No.
4. WHEREAS, this court is in fact and in law absent and form ofjurisdiction over the above
referenced Cause No..
5. WHEREAS, the "araest" which has led to the proceedings in this court stem from
proceedings in the 204TH DISTRICT COURT OF DALLAS COUNTY.
6. WHEREAS, on December 4, 2A14, the 204TH DISTRICT COURT Dismissed the charge
and cause against Childress as a result of Unconstitutional actions by the arresting offrcers.
7. WHEREAS, as a result of the Unconstitutional actions by the arresting officers in
DALLAS COLINTY, the 204TH DISTRICT COURT was without jurisdiction and was required
and did Dismiss the charge and cause against Childress.
Page? of 7
DEMAND TOR DISMISSAL
8. WHEREAS, as a result of a lack of jurisdiction, the alleged warrant that Childress was
arreet on in Comal County, at 567 Avenue A., New Braunfels, Texas was in fact and in law, null
and void, rendering the arrest, false.
9. WHEREAS, as a result of the null and void warrant and false arrest of Childress by New
Braunfels police officers at the aforementioned address, this court is also without jurisdiction:
Jus ex injuria non orifur: Aright cannot arise from a wrong.
Nemo punifur pro alieno declicto: No one is to be punished for the crime or
wrong of another.
10. WHEREAS, "It shall be the primary duty of all prosecuting attorneys,... not to convict,
but to see that justice is done. (Texas Code of Crim. Pro., Art. 2.01); "The [prosecutor] is the
representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to
govern impartially is as compelling as its obligation to govern at all; and whose interest,
therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.
As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of
which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and
vigor - indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike
foul ones. It is as much his duty to refrain from improper methods calculated to produce a
wrongful conviction as it is to use every legitimate means to bring about a just one." Justice
Sutherland in Bergerv. United States, 295 U.S. 78 (1935)
ll. WHEREAS, "When it clearly appears that the court lacks jurisdiction, the court has no
authority to reach the merits. In such a situation the action should be dismissed for want of
jurisdiction." Mglo v. US, 505 F2d 1026.
Page 3 of7
DEMAND T'OR DISIUISSAL
TIIEREtr'ORE, Childress demands that this court dismiss the charge and Cause against
him, for forcirig him to invoke the power and jurisdiction of an Appeals Court so as to compel
this court to do right would not only be unduly burdensome, but would also add to and furtlrer
iilflicL intentionally, emotional distress and sfiengthen distrust in the judicial offrcers involved in
the above reference Cause No. and the judicial system itself,
/
,t_
/
/+/ --ResPecttullY'
Jason Childress
/ 9l4l Grismill ct.
/ Fort Worth, Texas
jchildress I 980@gpail.com
Page 4 of7
DEMAND FOR DISMISSAL
ALL RIGHTS RESERYED TO AMEND WITIIOUT LEAYE OF CO{'RT
VERIFICATION
Executed without the United States:
I, Jason Truman Childress, do declare, certifr, veri$ and state underpenalty of perjury
under the laws of the United States ofAmerica that I am a living man, of lawful age and
competentto testift, and that I have personal knowledge of the foregoing facts which are true
and correct, bas€d upon my knowledge and belief, which knowledge and belief I believe to be
true.
Pursuant to 28 U.S. Code $ 1746 (a)
Executed onthis l3t\ aay of ,[fr...] of 2015.
I
Jason Childress
9141 Gristmill Ct.
Fort Worth, Texas
Page 5 of7
DEMAND FOR DISMISSAL
CERIIFICATE OF SERVICE
I, Jason Childress, hereby certiff that atrue and correct copy of the foregoing has been
delivered to the Clerk of th9 Court and the following party:
Abigail Lane Whitaker
. Coma[ County CorrtfoouseAnne(
150 N. SeguinAve., Ste. 307
New Braunfels, TX 78130
via US Mail, an{ or Certified N{aiUReturn Rrceipt on thisl3\day of fl1r*/
2015_. T
Jason Childress
9141 Grishill Ct
Fort Worth, Texas
Parge6 of 7
DEMAND TOR DISNfiISSAL
COT]NTY COTIRT
AT LAW#2
COMAL COUNTYTEXAS
Jason Truman Childress, $
Plaintifi $
$
v. I
s
ononn
STATE OF TEXAS, et. al., $
Defendants, $
$
ORI}ER
The above and foregoingmatter came to be considered onthis of
2015. After careful consideratioq this Court is of the opinion that the zuch matter be, and is
-day
hereby Dismissed:
( ) GRANTED
( ) DENTED
Judge CharlesA. Stephe,ns, or
JI.]DGE PRESIDING
Page 7 of7