“Justice?  We don’t need no steenk’ing justice!”

We have all heard about them. A few of us have even had the misfortune to have it happen to us, or to someone that we know.  An encounter with a corrupt court system and the criminals within them that populate our so-called ‘justice’ system.

This post will show you just how at least one of these corrupt courts operates some small part of its criminal enterprise.   What you are about to read is from two of the Motions that were filed in a real case involving a real person, but the personal info and case information has been removed to protect her privacy. The final disposition of the case was a full dismissal, but the reason for the dismissal is what you need to understand, AND to watch out for.

Background:

The young lady in this case was was falsely charged with “road rage resulting in property damage” by a pair of Austin’s finest extortionist thugs, who arrived some time after the incident had occurred, and who apparently had zero experience in traffic accident investigation and even less with common sense. They fabricated their evidence to suit their version of the facts rather than the ones given to them by the victim (the young lady, my client) and an eyewitness. Both of whom tried to inform the two officers of exactly how the teenage illegal alien in the SUV full of teenage girls had first come flying out of parking lot, barely missing their car traveling down the same street, and, then, just a little farther down that street, tried to drive the SUV across the entire front end of the victim’s car by making a right turn from the inside lane at a red lighted intersection and while my client’s car was traveling in the outside lane to the immediate right.

The SUV cut across the front of the victim’s car, causing her hood to go under the SUV, which hit its rear tire right on her left front wheel and fender. The scuff marks on her car fender were ample evidence that, considering the facts of the circumstances involved, this type of impact would result only if the driver of the SUV was making an illegal turn across the front of the car. And the impact was forceful enough that it not only damaged her wheel and fender, it also broke the car’s front axle. The teenage boy then tried to drive away, never stopping. The victim, broken axle and all, refused to let him get away and forced her car forward, chasing the boy until he finally stopped some distance further down the street. At which time the cops were called to the scene.

Now, by the time these two idiots, I mean officers, arrived on the scene, all of the teenage girls in the SUV had left the scene and were hiding out in a nearby mall, waiting for the cops to leave so they could come back.  Which the victim witnessed them doing right after the cops left. None of them were ever questioned about the accident, despite being eye-witnesses. And even though the teenage boy was at fault and temporarily detained, and even though he had no license or proof of financial responsibility (I know, and NOT my primary point here), he was given only a minor traffic citation and then let go.  The young lady, the actual victim, however, was given the third degree. And both she and her witness that had been riding in the car with her were called liars who had concocted their whole story. She was then falsely charged with several alleged offenses, including “road rage.”

Nonetheless, the actual remaining details of the traffic incident is not our primary concern here. It is the outright disregard for the truth, individual rights, due process, and justice, that immediately came to follow in one of the most corrupt municipal court systems I have ever seen.  And, as it turns out, it is a court that systematically commits egregious crimes and rights deprivations against the public as a whole, not just this one young lady. And those that run it and profit from its crimes simply justifies them as a necessity of ‘doing business’. And it is my personal experience that this court is not alone in this sort of corruption and as a purveyor of injustice for the purpose of revenue. But, on with the story.

Always Monitor the Court Record:

One of my primary rules of going to court, and one which I insist that my clients and students actually follow, is to be sure that you regularly and personally check the court record. ‘Regularly’ in this case meaning on an ever escalating scale as the trial date draws closer.  Now, this is assuming that the court in question is not so far away that checking the record in person isn’t really feasible.

However, most courts have an online public access system for looking up docket scheduling information and such, provided that you have ever been given any information at all that such a system even exists, much less how and what is needed to access it. In any case, I would offer this warning, don’t trust the online system to be accurate or timely in any way, and I mean in any way. These things are updated by people, when they are updated at all, and even then it is  often by very lazy, bored, and careless people. Checking the actual file is always preferable to checking the online resource.

When it comes to checking the physical court record, in the beginning, check the court record at least once a week after getting the citation(s) to see what, if anything, has been filed in the case that didn’t come from you. As the time for trial draws nearer, you escalate your record check frequency until, on the last week just before trial, you check the record at least three times, the Monday, Wednesday, and Friday of that week. You also make sure that you check the record on the day before trial, always, no exceptions. So, if your trial was to be held on the Friday in the above example, you would still recheck the record on that Thursday, the day before your trial, even though you had just checked it on that Wednesday. You will see soon why I have this rule and why it is so important to follow it.

The Right to Notice and How It’s Properly Done:

It is during this phase of the prosecutorial process where everything usually begins to fall apart on the due process points. Because, when anyone files something in the adjudicatory court record that relates to forward movement in the case, like a complaint actually being filed or a scheduling for some required appearance or action, you are supposed to be notified of it. This is what is referred to simply as “Notice” in legal circles. And that Notice is required to be done in a manner that covers all the due process bases relating to Notice.  The metaphor of ‘bases’ in this case meaning proper, sufficient, and timely.

Proper means that Notice was provided in accordance with the laws on how it is to be performed in order to be considered valid, which in most states is by either a process server, service by an officer (usually a ‘City Marshall’ or county constable), hand delivery in open court, or United States Postal Service (“Mail, Mailed, Mailing”).

Sufficient means that the Notice contains enough information to inform the person upon whom it has been properly served as to why they are are being served and what is required of them, such as  responding to or appearing in some specific place and time regarding some legal matter. The Notice should always state the basics of the specific matter itself, such as “You are being sued because of an accident in which you were involved with Mr. John Brown … ,” when the thing of which you are being Noticed will happen “… for which an initial hearing has been scheduled for 10:00am on April 1, 2016, … ,” and where the thing of which you are being Noticed will happen “… in the 126th District Court, Court Room 216, 1000 Guadalupe St., Austin, Texas, 78799.” This particular type of Notice is not required to spell out all of the details of the matter itself. But, at some point, there is supposed be another kind of Notice provided that does contain those details, and it usually comes either in the form of a civil complaint, or a criminal complaint and one or more types of charging instruments, such as an Information or Indictment, if it involves an alleged crime.

Timely means that the Notice was provided in a time frame that provided the recipient with enough time in advance to adequately prepare and respond to the Noticed matter and to comply with it by making an appearance and/or filing something as the case may be.

The Plot Thickens:

Now, what happened in this young lady’s case is egregiously criminal in its nature.  No, not any of her actions, but that of the city attorneys and judges in the Austin Municipal Court. And here is what they did.

This happened during the week right before my client’s trial was scheduled to commence on the following Monday. While following my instructions on keeping a close check on the contents of the court record, my client made a discovery that left her so shocked that she immediately called me to let me know. She had already checked the record on the previous Monday (she had taken ill and missed the Wednesday check), and she was now checking the record again on Friday, the last work day prior to her scheduled trial.

In the court file she found two new documents that had just been filed that past Thursday, the day before. The two new documents were a Dismissal Order for each of her case(s) under their original cause numbers, the very cases that she was scheduled to go to trial for on that coming Monday. Following that Dismissal Order in the record was a new set of criminal complaints, and all of them had new cause numbers. And all of them were set to go to trial on that same Monday that her original cases had been set for.

Realizing that something wasn’t right about any of this, she panicked, not knowing what to do since she had no copies of these pleadings with her to refile and no time to go home, print out copies, and then come back to file them. Because, here it was, Friday night, and the court was closing at 8pm, approximately 30 minutes from the time she had called me. I told her to calm down and listen to me. I instructed her to have the clerk print her out one copy of everything that she had filed in the old cause numbers (all of which were pleadings I had written that made her prosecution on these bogus charges legally impossible, hence the need for these underhanded and criminal activities by the city attorney and at least two of the judges within the court).

I told her that, once she had the printed copies in-hand, she needed to line out the old cause number and replace it with the new one that was written on the new complaints. Then, immediately have the clerk refile them in the new cases. Since the Austin Municipal court scans all case filings into their computer system, she was only going to need one copy to refile in each of the new cause numbers, and then she would have the clerk return the new copy for each cause number to her with a proper court file stamp on it. I also told her that, while she was doing that, I would be writing her a new Motion demanding a disqualification of the judge and prosecutor, judicial and professional ethics sanctions against both, and a complete dismissal with prejudice of all charges. As soon as I had them done I would email them to the clerk and my client should get those printed out and filed as well.

At no time had my client ever been Noticed that her original cases had been dismissed or been provided with a copy of that dismissal order. Nor had she had any Notice that the city asshole,…. I mean attorney, had refiled the same charges under new cause numbers. And she definitely had no Notice that would have allowed her to review and challenge the form and substance of the new complaints, as is her right under Texas Code of Criminal Procedure Arts. 45.018(b) and 45.019(f).

Who Actually Committed A Crime Here?

Now, do you fully understand what my client had just proven to have happened here, using only the official record?  Without any Notice whatsoever to my client, the city attorney had quietly dismissed the original charges against her, and then recharged her with the same alleged offense using NEW complaints and NEW cause numbers, and, then, criminally conspired and colluded with at least two judges within the trial court to continue the new cases from the same point at which the original had been dismissed as if they were the SAME original cases!

Why do I claim that at least two judges were involved? Well, for one, because a judge is the only one who could have signed off on the original dismissals, and two, the actual trial judge would have to have seen the very same court file at least a day or so ahead of time, and would have known that my client’s due process rights had just been smeared into the pavement like an armadillo under the tires of a fully loaded logging truck.  And finally, the judge who was present to preside over the trial was not the same judge whose name appeared on the secret dismissal order.

Now, you might be thinking “So what, why does that matter? Why should they start all over if they had already gotten this far in the original case?”  Well, let me try and break those points down for you.

First, all of my client’s original pleadings filed in the cases were attached to the original cause numbers, you know, the ones that were just secretly dismissed?  Which means that, if she loses at trial, and then goes after an appeal, the record will have only the NEW cause numbered items forwarded to the appellate court. Nothing with the dismissed cause numbers would be in that record. Meaning that none of her original pleadings would ever see the light of day in the appeals process in order to be reviewed by the appellate court. Not her challenge to jurisdiction, not her written objections to the lack of evidence, or the prosecutor’s use of inadmissible evidence. Nothing. It would be as if she had just sat back and let everything happen without being involved in putting on a defense for herself at all.

Second, while such a dismissal would not require going back to the beginning investigatory stages of a case, it is still being filed in the court as a new case, replete with new pleadings by the Snake…., I mean State. And my client’s right to Notice and due process, which includes the right to challenge any or all of these new pleadings, as well as any related evidence, must also start from the very beginning. Which would require a reset and restart of the entire judicial proceeding. To do anything else violates an individual’s fundamental right to substantive and procedural due process by denying them the opportunity to do any of these things.

Third, it is illegal. It constitutes several high crimes and misdemeanors by the very people entrusted to adjudicate these cases. People who, apparently, are perfectly fine with criminally conspiring and colluding to commit much higher level crimes in order to profit from those accused of offenses of a much less severe nature. You do understand that, right? Those two new documents are evidentiary proof that the city attorneys and judges of the Austin Municipal court knowingly conspire and collude to unconstitutionally and illegally deprive individuals of their fundamentally protected rights under color of law. And they are perfectly willing to continue doing so in order to ensure a conviction rate that will, overall, garner huge sums of money for their employer, the City of Austin, Texas, and of course, continuing long-term employment and a hefty paycheck for themselves in the process. All of which is, of course, protected by the State of Texas, as it garners its fair share from these illegal activities in the form of 50% of all fines adjudged and collected by the City of Austin.  And this is true of every municipality and justice court in the entire State of Texas.

What this Vampiric System and its Minions Fears the Most… EXPOSURE TO DAYLIGHT!

Okay, enough explanation, let’s get to the meat.

Please remember that I was under a severe time constraint, having less than 30 minutes to formulate and write both of these documents and then get them emailed to my client at the clerk’s window so she could have them printed out, sign them, and then file them in her cases. So they are devoid of my usual refinements and niceties, like ToC’s, ToA’s, footnotes, case opinion references, etc., that are normally required for an appeal-ready pleading. But I was not expecting that an appeal would be necessary in these cases after what we had just discovered and had them dead-to-rights on. And I was right!

These are the individual pleadings that were filed in my client’s case(s) after the discovery of this criminal conspiracy and collusion involving the petty thugs and thieves employed by the City of Austin. Just imagine how these pathetically inept and corrupt souls spend their days posing as honest, hardworking, and knowledgeable prosecutors and judges. These documents are not the originals that were filed in her cases as relating to how we were fighting the charges themselves. They apply only to the criminal acts of the prosecutors and the judges of which I have spoken thus far.  They document just why you should never trust any of these courts, regardless of the level at which they function.

The Main Body of Each of the Two Key Motions:

Defendant’s Motion to Quash Complaint:

1. Comes now Jane Doe, Defendant in error, as one of the People of Texas, without benefit of counsel, hereinafter “the Accused”, and makes this special appearance for the express purpose of challenging the court’s jurisdiction for lack of a proper complaint and charging instrument.

A. Introduction.

Abbreviations used in this document:
Texas Code of Criminal Procedure TxCCrP

2. The Accused maintains that this is a special appearance for the express purpose of challenging the court’s jurisdiction in CAUSE NUMBERS XXXXXX and YYYYYY for lack of jurisdiction, denial of due process, and to quash the facially and factually invalid complaints filed thereunder respectively.

3. The Accused maintains that she is NOT a trained legal professional, lawyer, or attorney,
and being denied assistance of counsel, is forced to proceed as a Pro Se litigant. The court
should and presumably does know that the Accused may NOT be held to the same standards of pleadings and knowledge of the legal process as a legal professional shall be. The Accused is being forced to navigate the legal waters against the Accused’s will and without benefit of legal counsel, using rules and procedures both unfamiliar to the Accused and not of her own making.

B. Facts.

4. The Accused is entitled to timely notice of any proceedings and/or filings in their case as a matter of right, which is a fundamental part of the right of due process. The STATE has knowingly and willingly failed to properly serve the Accused with a copy of the dismissal motion and order of the original cause number and filed with the court on February 22, 2010.

5. The STATE has knowingly and willingly failed to properly and timely serve the Accused with a copy of the dismissal motion and order involving the original complaint and case number, specifically, CAUSE NUMBER XXXXXX, thus depriving the Accused of the right of proper and timely notice.

6. The STATE has knowingly and willingly failed to properly and timely serve the Accused with a copy of the new complaint in the new case, specifically, CAUSE NUMBER YYYYYY. The STATE has failed to do this within the requisite time frame of no later than one day prior to any proceeding in the prosecution under the complaint, and, therefore, is in direct violation of the Accused’s right to due process and to have a copy thereof pursuant TxCCrP Arts. 45.018(b) and 45.019(f).

7. However, the Accused is certain that the contents of the new complaint, as currently filed under CAUSE NUMBER YYYYYY, are just as facially and factually invalid as the original complaint filed under CAUSE NUMBER XXXXXX.

8. The Accused is certain of this because both complaints are presumably based on the same faulty information and false facts, specifically, those contained in both Citation #99999 and the official police report.

9. From all appearances, both of the Affiants who signed the two different complaints are asserting the same incorrect facts, and these false and incorrect facts are the same ones that appear within the aforementioned citation and police report. Both documents contain
numerous disparities in their content, facts, accuracy, and the reality of what happened at the scene of the accident on the night of October 2, 2010. These errors and inconsistencies are so blatantly obvious and inaccurate that the Accused finds it absolutely astounding that the city attorney has not even bothered to question them at any time whatsoever. This simply proves that neither the clerks of the court that are being recruited to sign the criminal complaints as Affiants, or the prosecutors and judges that are doing the actual recruiting, check any of the facts contained in the actual documentation that would allegedly support the facts asserted in the complaint.

10. The Accused can find absolutely no law requiring an accused to aide, abet, assist, or otherwise provide the prosecution with anything whatsoever for the use of perfecting the criminal complaint that is to be used to charge an accused. Therefore, it is the belief and understanding of the Accused that only true and correct facts may be asserted and appear on the face of the complaint, and the truthfulness and accuracy of the facts therein are solely the responsibility of the prosecution.

11. Pursuant TxCCrP Arts. 1.14(b) and 45.019(f), the Accused’s sole responsibility and duty in regard to the truthfulness of all facts and content of both the criminal complaint and the charging instrument is to “object to a defect, error, or irregularity of form or substance in a charging instrument before the date on which the trial on the merits commences,” and that is the limit of the Accused’s said responsibility under the law, to do nothing more than simply object to it.

C. Conclusion.

12. The Accused objects to the false facial and/or factual assertions made in both the original complaint as it was filed under CAUSE NUMBER XXXXXX, and the new criminal complaint as currently filed under CAUSE NUMBER YYYYYY.

13. The Accused asserts that the complaint is factually inaccurate and facially invalid, and therefore, fatally flawed, and the Accused challenges said complaints in their entirety.

D. Lawful Demand.

14. The Accused moves the court to quash the criminal complaint filed under CAUSE NUMBER XXXXXX as being both facially and factually invalid, and therefore, fatally flawed.

15. The Accused moves the court to quash the criminal complaint filed under CAUSE NUMBER YYYYYY as being both facially and factually invalid, and therefore, fatally flawed.

16. The Accused also moves the court to levy civil and criminal sanctions against assistant city attorney, Steven H. Garret, and clerks of the municipal court, Lisa Munden, Erin Cole, and Annakaye Kirby, for prosecutorial misconduct, tampering with governmental records, abuse of official capacity, official oppression, criminal conspiracy, aggravated perjury, and denial of the right of due process.

Defendant’s Motion to Dismiss for Improper Notice:

1. Comes now Jane Doe, Defendant in error, as one of the People of Texas, without benefit of counsel, hereinafter “the Accused”, and makes this special appearance for the express purpose of challenging the court’s jurisdiction for lack of proper notice.

A. Introduction.

Abbreviations used in this document:

Texas Code of Criminal Procedure TxCCrP

2. The Accused maintains that this is a special appearance for the express purpose of challenging the court’s jurisdiction in CAUSE NUMBER YYYYYY for insufficient notice and denial of due process.

3. The Accused maintains that she is NOT a trained legal professional, lawyer, or attorney, and being denied assistance of counsel, is forced to proceed as a Pro Se litigant. The court should and presumably does know that the Accused may NOT be held to the same standards of pleadings and knowledge of the legal process as a legal professional shall be. The Accused is being forced to navigate the legal waters against the Accused’s will and without benefit of legal counsel, using rules and procedures both unfamiliar to the Accused and not of her own making.

B. Facts.

4. The Accused filed several motions, judicial notices, and subpoenas in the original cause number for this case, specifically, CAUSE NUMBER XXXXXX.

5. The Accused is in possession of a copy of a document obtained on February 22, 2011 from the court record associated with this case and which accompanies this motion as ATTACHMENT A, and shall be referred to hereinafter as same.

6. Despite ATTACHMENT A not being titled or styled in any way normally associated with a proper motion, its apparent use was to submit to some magistrate an ex parte State’s Motion to Dismiss the original complaint. The magistrate to whom this motion was presented, and who subsequently granted this alleged motion to dismiss, is unknown to the Accused, and, does not appear to be the magistrate known to be previously assigned to the Accused’s case. The Accused was never served with a copy of this “Motion”, nor was the Accused ever informed by any lawfully required method of notification that the original complaint had been dismissed and the case refilled with a new complaint and cause number.

7. The Accused also has not been served with a copy of any new complaint used to create the new case, specifically, CAUSE NUMBER YYYYYY. The Accused is entitled as a matter of right to be notified of any complaint against her and to have a copy thereof no later than one day prior to any proceeding in the prosecution pursuant TxCCrP Art. 45.018(b).

8. As the Accused understands it, the proper procedure would have been to amend the original complaint, not to dismiss the entire case and then refile it under an entirely new cause number, specifically, CAUSE NUMBER YYYYYY. The Accused feels that this was done not for the sake of amending the complaint, but to invalidate all of the Accused’s previous filings and requested subpoenas under the original cause number, which would also explain the STATE’s failure to properly notice the Accused of the refiling.

9. If dismissal of the complaint and original cause was the proper procedure to follow, then, why was the Accused not properly notified of both the filing of the Motion to Dismiss and the subsequent refiling of the case under an all new cause number, specifically, CAUSE NUMBER YYYYYY?

C. Conclusion.

10. The Accused objects to these proceedings as the court and the STATE are moving forward with the prosecution as if all of the prior pretrial filings and actions under the original cause number, specifically, CAUSE NUMBER XXXXXX, are presumed to still be in full force and effect in the new cause number, specifically, CAUSE NUMBER YYYYYY. The Accused sees this both as a violation of Texas law and the Accused’s unalienable and statutorily protected right of due process by the law of the land.

11. It is the understanding of the Accused that the dismissal of a cause before the court puts an end to that cause, specifically, CAUSE NUMBER XXXXXX. As the Accused understands the law, the dismissal of a case would also void any and all proceedings and filings made in the case under that cause number. Thus, such a dismissal would necessarily divest the court of any jurisdiction and any further actions under that cause number, specifically, CAUSE NUMBER XXXXXX.

12. Therefore, due to this understanding, the Accused believes that the filing of a new cause number, specifically, CAUSE NUMBER YYYYYY, begins an all new case and a new set of pretrial proceedings. If this is true, then, the requirement placed upon the prosecution and the court is that all filings and proceedings are to begin anew, and are to be performed in accordance with the rules of procedure codified in the relevant entirety of the TxCCrP just as if this was in fact, an entirely new case.

13. The Accused asserts that since the original cause number has been dismissed, specifically, CAUSE NUMBER XXXXXX, and a new cause number has been issued in the instant matter, specifically, CAUSE NUMBER YYYYYY, the court lacks jurisdiction to proceed directly to trial on the merits under the new cause number because none of the preliminary proceedings that are required to be performed in a new case have been performed at all. The court and the STATE are acting as if the new cause number may be treated as a continuance of all prior proceedings under the dismissed original cause number. This simply defies the logic of justice, fairness, impartiality, proper and adequate notice, and the right to procedural due process.

14. Pursuant TxCCrP Art. 45.001 the Texas Legislature made it clear that the entirety of Chapter 45 is to be construed for the following purposes:

CODE OF CRIMINAL PROCEDURE
TITLE 1. CODE OF CRIMINAL PROCEDURE
CHAPTER 45. JUSTICE AND MUNICIPAL COURTS
SUBCHAPTER A. GENERAL PROVISIONS

Art. 45.001. OBJECTIVES OF CHAPTER. The purpose of this chapter is to establish procedures for processing cases that come within the criminal jurisdiction of the justice courts and municipal courts. This chapter is intended and shall be construed to achieve the following objectives:

(1) to provide fair notice to a person appearing in a criminal proceeding before a justice or municipal court and a meaningful opportunity for that person to be heard;

(2) to ensure appropriate dignity in court procedure without undue formalism;

(3) to promote adherence to rules with sufficient flexibility to serve the ends of justice; and

(4) to process cases without unnecessary expense or delay.

Added by Acts 1999, 76th Leg., ch. 1545, Sec. 6, eff. Sept. 1, 1999.

15. The Accused asserts that TxCCrP Art. 45.001(1) makes “fair notice” a requisite of a criminal proceeding in a justice or municipal court. Affiant asserts that being served with a copy of the complaint either the day immediately prior to the date of a trial on the merits, or, in open court on the same day and commencement of such a trial, is neither fair nor adequate notice of new proceedings in a new case, specifically, CAUSE NUMBER YYYYYY.

16. As the Accused understands the law, there are specific statutory and constitutionally mandated steps and procedures in a criminal prosecution, and none of these have been done under the new cause number and in accordance with Texas law. The Accused asserts that this is a grievous judicial and due process error constituting grounds for prosecutorial and judicial misconduct, and, therefore, grounds for a dismissal with prejudice of the cause currently before the court, specifically, CAUSE NUMBER YYYYYY.

D. Lawful Demand.

17. The Accused moves the court for a dismissal with prejudice of CAUSE NUMBER  YYYYYY for the following reasons:

1) numerous violations of the Accused’s right of due process by the law of
the land;

2) by denying the Accused lawfully proper and timely notice of all filings
and proceedings;

3) by the conducting of ex parte proceedings and communications in a
criminal case;

4) for improper prosecutorial collusion with one or more clerks of the court
to immediately funnel all filings made by the Accused directly to the office of
the prosecuting City Attorney and thus creating the appearance of
impropriety, partiality and bias by a member of the court to the prosecution
and/or acting as a member of the prosecutorial “team”; and

5) for improper prosecutorial collusion with one or more clerks of the court
to deny the Accused proper and timely notice of proceedings and/or
prosecutorial filings as required by law.

18. The Accused also moves the court to levy civil and criminal sanctions against assistant city attorney, Steven H. Garret, and clerks of the municipal court, Lisa Munden, Erin Cole, and Annakaye Kirby for prosecutorial misconduct, tampering with governmental records, abuse of official capacity, official oppression, criminal conspiracy, aggravated perjury, and denial of the right of due process.

BLOG Post Edited (02-28-2011) 03 EC – MTN – Defendant’s Motion to Dismiss For Improper Notice

BLOG Post Edited (02-28-2011) 03 EC – MTN – Defendant’s Motion to Quash Complaint.doc

Texas – A “traffic stop” for the purpose of issuing a “transportation” citations will almost ALWAYS lack reasonable suspicion and articulable probable cause. And here is why….

If an officer cannot articulate specific factual elements or produce prima facie evidence that an individual was or is actively engaged in “transportation,” then how is it possible for the officer to just skip over ‘reasonable suspicion’ and go directly to ‘probable cause’ to believe that a crime under the “transportation” code has actually been, is being, or is about to be, committed? Especially considering that such criminality is created and exists solely under a malum prohibitum statutory scheme that relates solely to regulating “transportation” and activities that are directly subordinate and ancillary thereto?

Upon what specific articulable facts must an officer first base ‘reasonable suspicion’ that an individual is engaging in “transportation” in order to reach the necessary level of ‘probable cause’ to allege criminal activity, for it is one thing to inherently understand that criminality exists when an act is itself morally wrong and unjustifiable, while also being readily identifiable as having harmed another individual or their property. Acts such as fraud, theft, assault, or murder are some examples of such acts.

However, in a malum prohibitum statutory scheme that is strictly regulatory in its general nature, such criminality is neither morally wrong nor necessarily unjustifiable, and, more often than not, involves no actual victim complaining of palpable injury to their person or property. Therefore, Respondent asserts that the common standard for ‘reasonable suspicion’ or ‘probable cause’ is not sufficient in such cases, in that the naked unsubstantiated claim of either would suffice to provide an officer with far more opportunity and latitude for abuse of his or her authority and in depriving individuals of their rights against unreasonable searches and seizures as well as due process. The result being that the defining elements necessary to make a malum prohibitum allegation of criminality now rests solely in the subjective opinion and determinations of the officer alone, and not within the statutory scheme that defines and controls it.

And unlike other forms of malum prohibitum statutory schemes, such as possession of drugs or drug paraphernalia, where it is the possession itself that is the criminal act, and which requires at least some reasonable indicator or facts that the person was in possession of same, how is this to be accomplished when the act itself is simply regulatory and there are no articulable facts that lead to the Governing Subject Matter being regulated? How does an officer come to have ‘reasonable suspicion’ or ‘probable cause’ to suspect or believe that a regulatory offense that is completely ancillary and subordinate only to the regulated Governing Subject Matter of “transportation,” is being, has been, or is about to be committed, without any articulable facts or evidence that “transportation” was or is being engaged in?

For instance, how does an officer look at a family minivan traveling down the highway and reach the conclusion that the mother-of-three inside the van is actually a “carrier” secretly engaged in the business of transporting passengers, goods, or property from one place to another for compensation or hire? Even if an officer began with the premise that the minivan was ‘speeding,’ at what point is the officer required to actually investigate the existence of facts and evidence necessary to establish and prove that “transportation” is a factual element of the ancillary regulatory offense being alleged? Despite the fact that there actually is not any offense whatsoever that is defined as “speeding” within the “Transportation” Code, the presumption of such an offense is based entirely upon the statutes within that code as being a regulated activity subordinate and ancillary to the Governing Subject Matter of “transportation,” not just “speeding” in and of itself. “Speeding” is not the primary regulated subject matter, “transportation” is, hence, an individual can be “speeding” only if it can first be proven that they were actively engaged in “transportation” at the time of the alleged offense.

Which begs the question, is the officer, the prosecutor, and the court, allowed to simply presume the existence of “transportation” for the purpose of a criminal prosecution, even though there are no facts or evidence that this essential element of the offense even exists? Isn’t this lack of evidence for the existence of the primary element of the offense necessarily exculpatory[1] to the accused individual by default? Isn’t the prosecutor required as a matter of right and law to disclose that lack of evidence and dismiss the case rather than simply presuming the existence of “transportation” and seeking to prosecute anyway (see footnote 9 ibid)? Isn’t this prime element of the existence of “transportation” the sole basis for the court having jurisdiction of the matter in the first instance considering that the subordinate and ancillary regulatory offense is no crime at all without it?

In relation to an offense that is entirely malum prohibitum under a regulatory statute, how could an officer possibly get to ‘probable cause’ without actual knowledge and understanding of all the specific elements of the alleged offense codified by the statutory scheme? Does the officer need only one out of three statutory elements that have to be proven, or is it just four out of five, or perhaps seven out of ten? Is it possible that an officer cannot reach probable cause in such cases without being able to express facts proving the existence of all elements required to be proven, beginning with proof that “transportation” was being engaged in at the time of the alleged offense? And if not, then how is such a standard not entirely capricious, arbitrary and subjective, and, thus, completely unconstitutional in relation to an individual’s right of due process and to be free from unreasonable searches and seizures, not to mention the unreasonably increased danger to their property and/or person by overzealous or abusive public servants?

Respondent asserts that such ‘reasonable suspicion’ or ‘probable cause’ simply cannot be reasonably or objectively obtained in instances where an offense is defined and governed entirely by statutory schemes as a malum prohibitum offense using the present standards established by the courts when applied to the private “non-transportation” activities of the general public.

Footnotes:

[1] Art. 2.01. DUTIES OF DISTRICT ATTORNEYS. Each district attorney shall represent the State in all criminal cases in the district courts of his district and in appeals therefrom, except in cases where he has been, before his election, employed adversely. When any criminal proceeding is had before an examining court in his district or before a judge upon habeas corpus, and he is notified of the same, and is at the time within his district, he shall represent the State therein, unless prevented by other official duties. It shall be the primary duty of all prosecuting attorneys, including any special prosecutors, not to convict, but to see that justice is done. They shall not suppress facts or secrete witnesses capable of establishing the innocence of the accused.

Have you ever had a justice or municipal court in Texas tell you that they didn’t actually need a signed and verified criminal complaint in order to have jurisdiction to conduct their sham proceedings against you?  Did you buy it hook, line, and sinker, or did you feel or know that they were as full of shit as a colostomy bag attached to a fat man at a buffet? If it was the latter, congratulations, you aren’t really as stupid overall as you were probably made to feel at the time.

However, the reason that you were made to feel stupid and powerless was because in a particular way, you were.  You weren’t educated or prepared for the bullshit games they like to play in these courts, which can be best described only as a form of judicial three card monte, “Where’s your rights! C’mon, follow your rights! Are they on the left, right, the middle? C’mon, choose and show me!”

Well, in this article I am attempting to provide you with some information that should help you, provided you make the effort to actually help yourself by learning it. What you are about to read is easily verified using the State of Texas’ own legislative web site. On this site are all the codes and the Texas Constitution that are referenced in this article.

http://www.statutes.legis.state.tx.us/

All you have to do is learn what they are, where they are, and how to argue what you know about them from doing so. This article is about how to make and integrate those arguments into a legal pleading, whether that pleading demands a dismissal, or is challenging the courts jurisdiction, or challenging the form and substance of a complaint or charging instrument, and, thus, challenging its actual validity for the intended purpose. In relation to these lower courts and class of cases, a citation and complaint are all you will normally have to contend with and fully understand the proper procedural requirements and usages of.  This is constitutionally improper in this author’s opinion, but what can you expect when you are dealing with a collection of attorneys that actually believe they are fundamentally more intellectual, intelligent, and wiser than everyone else.

SB 971 (“Transportation” Code) Prosecutions Will Always Fail Due Process Muster

Respondent’s Challenge to Citation as a Valid Charging Instrument

Rationally speaking, due to numerous violations of Respondent’s right of due process and legal conflicts both with those due process rights and other provisions of the Code of Criminal Procedure, neither the citation nor the complaint in this matter are legally sufficient in and of themselves to invest the court with jurisdiction.

The citation suffers from multiple legal conflicts in that it does not meet all of the mandatory statutory requirements of a valid complaint pursuant §45.019(a), Code of Criminal Procedure, nor does there exist any waiver mutually agreed upon and signed by the Accused and the alleged Attorney for the State that has been submitted to the court pursuant § 27.14(d), Code of Criminal Procedure, yet another legal conflict. This waiver is mandatory before the court is authorized to use a citation in lieu of a valid verified complaint, and there is no such waiver signed by Respondent.

The citation also suffers from multiple conflicts with Respondent’s right of due process; the citation is not in any way signed and verified; the citation does not contain the required legal language intended to provide proper, sufficient, and timely notice to an accused individual of the specific allegations being made against them; the citation does not and is not required to state all of the legal elements required to be proven for each allegation made upon its face; the allegations made on the face of a citation may or may not be the same as those stated in an actual criminal complaint.

Furthermore, the Texas Court of Criminal Appeals has long ago (unconstitutionally) set the minimum bar investing jurisdiction in justice and municipal courts to the actual filing of a sworn complaint. An opinion which Respondent would argue is also unconstitutional and illegal on its face pursuant both Art. 5, §12(b), Texas Constitution, and §1.05, Code of Criminal Procedure. Leaving the only logical conclusion to the issue be that, for the moment, anything less than a signed and verified criminal complaint is a failure to provide proper, sufficient and timely notice to Respondent, which, in turn, is a complete denial of substantive and procedural due process rights. Thus, the citation alone is consistently repudiated by mandatory requirements of a constitutional, statutory, and due process nature that make it legally insufficient to ever invoke a court’s subject matter jurisdiction.

Respondent’s Challenge to the  Form, Substance, Constitutional, and Statutory Insufficiencies of the Criminal Complaint as a Valid Charging Instrument

For the purpose of clarification and brevity in the following discussion on the related statutory impact to criminal complaints, Respondent must establish common points of reference in relation to certain terminology that will be used throughout.

“Regulated Subject Matter” shall mean the regulated occupation of “transportation” as specifically stated and intended by the Texas Legislature in the Bill Caption of SB 971 as contextually pertaining and relevant to the entirety of the “Transportation Code,” the Bill Caption being “AN ACT relating to the adoption of a nonsubstantive revision of statutes relating to transportation, including conforming amendments, repeals, and penalties.” [1] (Emphasis added)

“Transportation” [2] shall have the same meaning as is found in Black’s Law Dictionary 6^th Edition “The movement of goods or persons from one place to another, by a carrier. Interstate Commerce Com’n v. Brimson, 154 U.S. 447, 14 S.Ct. 1125, 38 L.Ed. 1047.”

“Carrier” [3] shall have the same meaning as is found in Black’s Law Dictionary 6^th Edition “Individual or organization engaged in transporting passengers or goods for hire. “Carrier” means any person engaged in the transportation of passengers or property by land, as a common, contract, or private carrier, or freight forwarder as those terms are used in the Interstate Commerce Act, as amended, and officers, agents and employees of such carriers. 18 U.S.C.A. § 831.”

“Alleged Attorney for the State” shall mean any attorney practicing in this state that is neither a properly elected or appointed and duly sworn County or District Attorney pursuant all requirements for same as mandated by the Texas Constitution, or that is not directly employed thereby as a full-time Assistant County or District Attorney acting under the constitutionally delegated lawful authority of that office. The term shall include, but is not limited to, any city/municipal attorney or any attorney in private practice acting under contract or other form of agreement with any city, town, village, municipality or county.

As to the complaint itself, it cannot be reasonably asserted or argued that the complaint contains the required legal language intended to provide proper, sufficient, and timely notice to an accused individual of the allegations being made against them as there is no legal requirement in statute for a criminal complaint created under either §§15.05 or 45.019(a), Code of Criminal Procedure, to state all of the legal elements required to be proven for each allegation made upon its face, which itself is a violation of Respondent’s right of due process.

The complaint is legally insufficient and violates Respondent’s right of due process as it does not state any facts alleging or relating to the Regulated Subject Matter under which the alleged failure to perform a legal duty actually exists, which Respondent Exhibit “A” very clearly states is that of “transportation.” Respondent submits that the entire Regulated Subject Matter of SB 971 exists solely to regulate the underlying activities and functions directly associated with engaging in the commercial/economic occupation of “transportation,” and in no way whatsoever was it intended or enacted for the purpose of placing the individual rights and private property of the People under the STATE’s presumptive regulatory and licensing authority via the ‘police power.’

Thus, the prosecution and the court are attempting to invoke subject matter and in personam jurisdiction not through actual facts and evidence proving such jurisdiction, but through an unconstitutional application of analytically backward progressing inferences based entirely on an initial irrebuttable presumption, i.e. “The STATE accuses Respondent of “driving” a “motor vehicle” in violation of specific and multiple sections of the “transportation” code, which regulates only “transportation,” which is a term with a specific legal and industry applicable meaning of which we claim or pretend to have no actual knowledge or understanding. But, considering that we did no actual investigation into, and have no actual facts or evidence to support, the entirely presumptive claim that Respondent was actually engaging in the Regulated Subject Matter of “transportation” at the time of the alleged offense, we will fabricate the illusory presumption needed by using statutorily related terminology that is otherwise only legally applicable to such activity, thus fabricating an offense that legally could and would apply only if Respondent were so engaged.”

It cannot be overstated that the complaint (or any other existing charging instrument) contains no assertion of evidentiary elements and facts relating to Respondent actively engaging in the Regulated Subject Matter of “transportation,” because there are none! And the Alleged Attorney for the State could have known and should have known that there is no subject matter creating a legal duty upon Respondent without them and the necessary admissible evidence to prove them. Any and all other facts alleged in the complaint(s) are themselves nothing more than subordinate criteria legally and logically existing only as directly subordinate subject matter components to the primary subject matter under which they are codified within SB 971, that of “transportation.”

It should be axiomatic that without evidentiary proof that Respondent was engaging in the overall parent subject matter, any alleged violation of a strictly subordinate legal duty thereunder cannot legally exist or stand as binding upon Respondent absent factual consideration and evidence that s/he was actively engaging in “transportation.” The regulated activity of “transportation” alone is the primary subject matter governing the alleged violation, and its existence must be asserted in the complaint and proven upon the record of the court in order for both subject matter and in personam jurisdiction to be invested in the court, because jurisdiction is invested in such courts only when an offense against a public duty directly related to that specific subject matter activity can be proven on the record.

Respondent can fathom only four possible means by which the STATE could even hope to provide evidence that s/he was actively engaged in the Regulated Subject Matter of “transportation” at the time of the alleged offense. Such evidence would necessarily be comprised of either a bill of lading, a passenger manifest, a commercial logbook, or a signed confession. All of which would be required to show specific facts proving that Respondent was actively engaged in “transportation” at the time. Absent this evidence STATE’s entire case is not merely circumstantial, it is entirely presumptive and legally unsubstantiated, and, therefore, is nothing less than a kangaroo court conducting kangaroo proceedings that violate Respondents fundamental rights of due process by attempting to convict him/her of a crime based solely on presumption, inference, and speculation, without a single piece of factual evidence supporting any of it.

The constitutionally required Caption found on Page 1 of SB 971 provides Respondent with all the necessary evidence to reasonably conclude that the Legislature’s sole intent upon enacting SB 971 was to regulate the commercial occupation known as “transportation,” and only those subjects, objects, and activities necessarily subordinate and ancillary thereto, and nothing else. There is also ample indication within multiple subordinate subject matter provisions of the Bill itself that its only intended nature and application was that of regulating commercial use of the public highways for the general safety of the traveling public, for whom the highways are built and used for their own private business and pleasure as a matter of fundamental right.

However, this readily available and easily understandable evidence has done nothing to prevent every law enforcement agency and court throughout Texas from unconstitutionally and illegally attempting to expand SB 971’s very limited intended application to everyone and everything upon our Texas highways under the ever growing cancerous tumor upon freedom and liberty that is the ‘police power,’ regardless of the fact that a great many of the People unlawfully and illegally subjected to its punitive measures via executive and judicial harassment and outright corruption have no legal duty under any provision of SB 971, as it never applied to them or Respondent in any way absent evidentiary proof of engaging in “transportation” at the time of the alleged offense.

In short, as the moving party in the instant matter, the STATE lawfully and legally bears the full burden of proving every element of an allegation. In this particular case, an allegation that as a matter of law must begin with proof that Respondent was actively engaged in the subject matter regulated occupation of “transportation.” Only after that fact is established by submission of at least one of the aforementioned pieces of evidence, can the STATE attempt to prove that Respondent was acting in the legal capacity of a compensated “carrier,” or simultaneously as both a compensated “carrier” and “operator/driver,” or even as a compensated “operator/driver” employed by a “carrier.”

Therefore, it is only after establishing that Respondent was actively engaged in “transportation” that the STATE can legally attempt to prove that was Respondent was in physical control of a “motor vehicle,” as the term “motor vehicle” is only applicable when the device is being actively used by an “operator” or “driver” to engage in the Regulated Subject Matter that is the commercial occupation of “transportation.” Respondent’s private fundamental right to liberty through locomotion and travel for his/her own personal business and pleasure, or for the purpose of moving his own person or property upon the highways as a matter of right, does not constitute engaging in “transportation” as that subject matter was intended to be regulated by SB 971.

Finally, there is no actual constitutionally compliant charging instrument investing this court with jurisdiction in the required form of an indictment or information as required by Art. 5, §§12(b) and 17 of the Texas Constitution, as well as §§2.04 and 2.05, Code of Criminal Procedure, wherein an information is required to be prepared and filed in any misdemeanor case, in any court within any county where there exists a County Attorney. Respondent can find no such instrument in the court record.

Furthermore, the current case law on the subject of pursuing prosecutions in municipal and justice courts by complaint alone has failed at every turn to examine the clearly stated requirements of §§2.04 and 2.05, Code of Criminal Procedure, and integrate them into its judicial opinions. Which is extremely odd and telling as both of these articles have been mandatory procedural law since enacted by the 59^th Legislature in 1965.

Thus, Respondent can only conclude that this decades old ongoing failure of every level of our Texas Courts to fully comply with lawfully enacted provisions governing criminal procedure is knowing and willful subversion in order to facilitate the process of speedier prosecutions at the expense of proper jurisdictional and due process requisites, meaning that the courts have decided that they now have the power to both ignore legislatively enacted procedures for criminal cases as well as to rewrite those processes to work however the courts themselves please. Respondent is left wondering if the Texas Supreme Court would have a problem with defending such behavior if the issue were raised in a lawsuit over the multitude of unlawful and illegal due process and jurisdictional issues it creates.

Footnotes:

[1] Respondent Exhibit “A” – Texas Secretary of State Certified copy of Page 1, Bill Caption SB 971, 74^th Legislature, 1995.

[2] At no time did the Texas Legislature see fit to statutorily define the term “transportation” within SB 971, the current amended version of the “Transportation” Code, or any other statutory code in the entirety of Texas legislation. Therefore, under the rules of statutory interpretation and construction, Respondent has supplied the common legal definition as currently utilized and applicable to the areas of related law and industry.

[3] As with the term “transportation,” the Texas Legislature did not see fit to statutorily define the singular term “carrier” within SB 971 or the current amended version of the “Transportation” Code. The closest defined phrase is “motor carrier” within §643.001(6). Therefore, under the rules of statutory interpretation and construction, Respondent has supplied the common legal definition as currently utilized and applicable to the areas of related law and industry.

I hope that this gives you some idea of what is being done to you and how.  I hope even more that it pisses you off to such a degree that you will fight every ticket you receive for the rest of your living days upon this Earth, and that you will make it your mission in that life to convince everyone you know or meet to do the same. Because, if everyone did, the entire system that has foisted this unconstitutional scheme of regulatory theft upon us all would collapse under its own financial weight within a matter of weeks or days.