Due Process 101 Habeas Corpus
Petition for Writ of Habeas Corpus
Cause No: __________
IN THE _______
___________ COUNTY, TEXAS
ORIGINAL PETITION FOR WRIT OF HABEAS CORPUS
Now comes _________________, hereinafter referred to as “Relator,” by and in behalf of ___________________, hereinafter referred to as Affiant, and files this petition and application for writ of habeas corpus and would show the court due cause by the following.
TABLE OF CONTENTS 1
TABLE OF AUTHORITIES 3
Contact information 5
Affiant IS ILLEGLLY CONFINED 5
Affiant held in state of legal limbo 5
Statement of facts 6
STATEMENT OF CAUSE 7
ALLEGATIONS OF ORGANIZED CRIMINAL ACTS 7
Concern for personal property 8
CAREFULLY CRAFTED CRIMINAL CONSPIRACY 9
NO REASON TO FEAR FROM Affiant 12
NO INTERVENING CIRCUMSTANCES NECESSITATING DELAY 12
DUTY TO TAKE BEFORE MAGISTRATE WITHOUT UNNECESSARY DELAY 13
SUBJECT PUnHISHED AS INTENTIONAL INTIMIDATION 16
PRESUMPTON OF INNOCENCE DENIED 17
Delay contrived to facilitate punishment of accused 18
Accused punished by jailers 19
BOOKING AS PLOY TO INCREASE JAIL HEADCOUNT 19
ARRESTING OFFICER AS TRESSPASSOR AB INITO 20
PROSECUTORIAL PURPOSE FOR DENYING TIMELY EXAMINING TRAILS 22
clean hands policy renders court without jurisdiciton 22
15.02. Criminal Conspiracy…………………………………………….. 23
COURT PROCEEDINGS HELD IN SECRET 24
Examining trials required by texas law 25
Specific rights denied as deliberate contrivance 25
ARTICLE 15.17 AND SHARP PRACTICE BYPASS OF DUE COURSE 26
PROBABLE CAUSE DETERMINATION MADE BY INFORMAL METHOD 30
NO ORDER CONFERRING JURISDICTION ON COURT 33
NO WARRANT GIVING COURT JURISDICTION 33
NO CRMINAL ALLEGATION IN THE COURT RECORD 34
NO COURT RECORD 34
MAGISTRATE CONSPIRED WITH JAILER TOWARD TAMPERING WITH gOVERNMENT DOCUMENT 35
PROSECUTORIAL INVOLVEMENT 35
Affiant DENIED ACCESS TO THE COURTS 36
SHARP PRACTICE TO DENY APPEAL 38
Sharp practice intended interrupt prosecutions 40
sharp practice intended to circumvent Article 32.02 Texas Code of Criminal Procedure 43
SEE NO EVIL 47
THE CORPUS JURIS 53
ONGOING CRIMINAL CONSPIRACY 54
ARRESTING OFFICER NOT CREDIBLE PERSON 54
JAILER ESTOPPED FROM REPRESENTING ARRESTING OFFICER IN COURT POCEEDING 55
MAGISTRATE IS DISQUALIFIED 56
PROSECUTOR DISQUALIFIED 56
Allegation of ongoing criminal conspiracy 57
JURSIDICTION MUST BE PROVEN 57
); Trupiano v. United States, 334 U.S. 699, 705 (1948)…………………………… 14
, Beck v. Ohio, at 96……………………………………………………………………. 14
; Alamo Downs, Inc., et [***14] al v. Briggs (Civ. App.), 106 S.W. (2d) 733 (er. dism.)……………………………………………………………………………………….. 15
American Mortg. Corp. v. Wyman 41 S.W.2d 270 (Tex. Civ. App. Austin 1931 22
Baskins v. State, 75 Tex. Crim. 537, 171 S.W. 723, 725 (1914)………………… 42
Catchings v. State, 162 Tex. Crim. 342, 285 S.W.2d 233, at 234 (1955)……… 43
Draper v. United States, 358 U.S. 307 (1959)……………………………………….. 14
Ex parte Clear, 573 S.W.2d 224, 228 (Tex.Cr.App. 1978)……………………….. 42
Ex parte Martin, 119 Tex. Crim. 141, 45 S.W.2d 965 (1932……………………… 32
Glass v. State, 162 Tex. Crim. 598, 288 S.W.2d 522 (1956)…………………….. 43
Murdock v. Penn., 319 US 105………………………………………………………….. 57
Rios v State 688 S.W.2d 642…………………………………………………………….. 42
United States v. Watson, supra, 423 U.S. at 428 (Powell, J., concurring……… 17
Wells v. State, Tex.Cr.App., 516 S.W.2d 663. Ex parte Ward, 560 S.W.2d 660…………………………………………………………………………………………… 38, 43
WILMA HAZEL KENNEDY v. STATE (02/09/55) 276 S.W.2d 291, 161 Tex. Crim. 303……………………………………………………………………………… 42, 43
. Art. 217, C.C.P., 1925……………………………………………………………….. 15
- 20.03. KIDNAPPING. Texas Penal Code…………………………………….. 21
- 37.10. TAMPERING WITH GOVERNMENTAL RECORD…… 36, 52
- 37.11. Impersonating Public Servant…………………………………………… 53
- 39.03. OFFICIAL OPPRESSION………………………………………………. 33
18 U. S. C. §§ 3146, 3148…………………………………………………………….. 17
18 U. S. C. 3146 (a)(2, (5)…………………………………………………………….. 15
38.05. Hindering Apprehension or Prosecution……………………………….. 53
71.02 Texas Penal Code……………………………………………………………….. 19
Art. 15.17. DUTIES OF ARRESTING OFFICER AND MAGISTRATE……………………………………………………………………………………………….. 28
Art. 16.01. EXAMINING TRIAL………………………………………………….. 33
Art. 16.07. SAME RULES OF EVIDENCE AS ON FINAL TRIAL…. 26
Art. 16.08. PRESENCE OF THE ACCUSED…………………………………. 33
Art. 16.09. TESTIMONY REDUCED TO WRITING……………………… 32
Art. 16.17. Decision of judge………………………………………………………… 34
Art. 17.30. Shall certify proceedings…………………………………………. 35, 43
Art. 2.03. Neglect of duty…………………………………………………… 51, 55, 57
Art. 2.04. Shall draw complaints……………………………………………………. 53
Art. 2.05. When complaint is made………………………………………………… 53
Art. 2.11. Examining court……………………………………………………………. 31
Art. 32.02. DISMISSAL BY STATE’S ATTORNEY…………………. 45, 50
Art. 487, P.C., 1925……………………………………………………………………… 15
Article 12.05……………………………………………………………………………….. 38
Article 14.06 Texas Code of Criminal Procedure………………….. 14, 18, 27
Article 15.04, V.A.C.C.P………………………………………………………………. 43
Article 15.17………………………………………………………………………….. 30, 31
Article 15.17 Texas Code of Criminal Procedure……………………….. 27, 28
Article 17.05 WHEN BAIL IS TAKEN…………………………………………. 30
Article 2.13 Texas Code of Criminal Procedure………………………………. 49
Article 21.22 Texas Code of Criminal Procedure…………………………….. 43
Criminal Law 59(4)…………………………………………………………………….. 24
in Art. 325, C.C.P., 1925………………………………………………………………. 15
Section 39.03 Texas Penal Code……………………………………………………. 19
Tex. Code Crim. Proc. Ann. art. 2.01……………………………………………… 27
); Kennedy v. Mendoza-Martinez, 372 U.S. 144, 165-167, 186 (1963)……….. 17
16 Tex.Jur.2d, Criminal Law, Sec. 200……………………………………………….. 38
ALI, Model Code for Pre-Arraignment Procedure, Commentary……………….. 17
Texas House Bill 72, passed in 1984, the Education Reform……………………. 11
JEFFREY M. SHAMAN, ET AL., JUDICIAL CONDUCT AND ETHICS, § 6.01 at 145 (1990)……………………………………………………………………….. 25
TEXAS SUPREME COURT, CODE OF JUDICIAL CONDUCT, Canon 3A(5)……………………………………………………………………………………………….. 25
- Goldfarb, Ransom 32-91 (1965); L. Katz, Justice Is the Crime 51-62 (1972 15
Sir James Fitzjames Stephen, A History of the Criminal Law of England (1883), vol. 1, p. 442 note Compare § § 25 and 26 of the Indian Evidence Act (1872……………………………………………………………………………………………….. 20
Relator in this matter may be contacted at:
Affiant in the instant cause may be contacted at
Respondent may be contacted at the location indicated below:
Affiant is illegally confined and restrained at liberty by the ___________________, hereinafter referred to as, “Respondent.” Affiant, having been arrested and confined in the __________________jail is currently restricted at his liberty when no criminal charge has been properly made.
Affiant has been arrested and held in the county jail with no complaint having been filed in the court of jurisdiction. Affiant is unable to file motions with the court in his behalf as there is no cause against Affiant. With no complaint against Affiant filed in any court of component jurisdiction, no court has jurisdiction over Affiant.
Affiant was arrested and subjected to a series of schemes carefully crafted by police, magistrates, prosecutors, and Judges toward the outcome of denying those accused of crime in the due course of the laws in order to extort monies from same under the guise of fines and fees, in contravention to the due course of the Constitution and laws of the State of Texas. The practices and procedures herein demonstrated constitute an ongoing criminal conspiracy to disenfranchise citizens of the basic fairness intended by the body of the laws. By this document, Relator will demonstrate that Affiant is still being restricted at liberty subject to the above-alleged improper practices.
By the following, Affiant will demonstrate with specificity and particularity how each act of abuse has been designed to interrupt those accused of crime in their natural expectation of fundamental fair treatment; how they are then Subjected to treatment intended to use said interruption as an opportunity to frighten, intimidate, and subjugate the accused in order to suppress the expression and demand of rights considered waived if not expressed or demanded.
Affiant was seized and wrongfully held by arresting officer toward the furtherance of the commission of felony crimes to the detriment of Affiant. Affiant, after arrest, was improperly secreted from the nearest magistrate as a matter of policy. Having made no due diligent effort to locate a magistrate, Affiant was taken by force by an officer displaying a deadly weapon. Affiant was then improperly imprisoned in order to facilitate punishment by jail personnel. Affiant was then brought before a magistrate who continued the improper and abusive treatment of Affiant by holding an examining trial in ex parte and in secret wherein the liberty interest of Affiant was determined by the magistrate in the form of a determination of probable caus. Affiant was then Subjected to prosecutorial tactics designed and intended to continue the abuse initiated by the arresting officer and supported and continued by the jailer and magistrate.
It is the specific accusation and allegation of Affiant that all the above was perpetrated in order to facilitate the extortion of monies from Affiant in the form of fines and fees levied in furtherance of an ongoing criminal enterprise. Said criminal enterprise is accomplished through the perpetration of multiple schemes, engaged in by numerous functionaries, occurring over time, toward a common and continuing elicit outcome.
Relator further alleges, the extortion of funds form Affiant , et al, is but a secondary consequence of the primary outcome intended by the schemes. It is the specific assertion and allegation of Relator that Affiant was exposed to punishing intimidation, subjugation, and humiliation, in order to so psychologically inhibit Affiant and others accused of crime as to quell any expectation of fundamental fairness, or common civility at the hands of the police and courts. This has been done in order to create an expectation of abusive treatment at any attempt to assert rights assumed waived if not asserted or demanded, and thereby, facilitate the avoidance of a fair trial through the implementation of an improper plea agreement.
“There are few more horrifying experiences than that of being suddenly snatched from a peaceful and orderly existence and placed in the helpless position of having one’s liberty restrained, under the accusation of a crime.” Halliburton-Abbott Co. v Hodge, 172 Okla 175, 44 P2d 122, 125
America is steeped in traditions of freedom, justice, and the rule of law. From the time we can learn all are indoctrinated in the righteous rhetoric extolling the sanctity of inalienable rights, sovereign individual freedoms, and the fundamentally fair application of the rule of law. Having been so exposed from first learning’s, people, including Affiant , are lead to expect treatment from their public employees to reflect a fundamental fairness, common dignity, reasonable deference, and a modicum of respect.
Grifters, con artists, and unscrupulous scoundrels tend to be well aware of those aspects of the cultural psyche driven by deeply engrained expectations of common civility and adherence to the cultural norms. They are also well aware of how those mostly unstated pre-suppositions render the average person vulnerable to contrived interruptions of those expectations. Ordinary people simply do not expect their public servants to treat their sovereignty with a total disregard for well-established norms of civility and due course of law. Neither do ordinary persons of reasonable prudence expect those in positions of public trust to outrageously betray that trust.
When a person has everything they have come to expect ripped from under them, they are left in a state of disorientation, psychologists call “pattern interruption.” They are without any available behavior. If you can remember a time when something totally unexpected happened and you found yourself with no way to respond, stuck, then you recognize how psychologically devastating that can be and how vulnerable you become.
This very circumstance is actively cultivated by the actions and behaviors of the actors presented below. The arresting officer has been trained to conduct himself in a manner as to take total control through a posture, which allows absolutely no resistance. By interrupting the accused expectation of civil treatment, initiates the interruption of the expectation of treatment. The jailers to whose custody the officer renders the accused continues the pattern of punishment and abuse. This pattern is followed by the magistrate and prosecuting attorney in their turn. Even the Judges follow along without interruption or intervention of the mistreatment they have to know is improper.
The particular expectation of the American citizen is no mere minor unstated presupposition. People are actively taught and trained from birth and through school to hold this expectation above most all others. Texas House Bill 72, passed in 1984, the Education Reform Bill pushed through the Legislature by Ross Perot was touted as being about eliminating social promotions, but that was the second mandate in the bill. The first was so normal to our way of thinking that it never once got mention in any press. The first mandate was that the school shall instill in the child a deep and abiding faith in and respect for the American form of government. To their credit, the schools in America, and especially in Texas do just exactly that.
This brings us to the audacity of the corrupt, conniving, conspiracy presently practiced by Prosecutors and those acting under their direct advice to include police and inferior courts. Our Legislature, in its wisdom, found it expedient to take advantage of learned counsel already in its employ and directed prosecutors to render legal advise to the police and lower courts. In ordinary circumstances it would be unconscionable to allow an attorney to render advice to officials in matters in which the attorney would have a professional interest. What would you expect of a harried prosecutor rendering advice to those involved in the handling of cases s/he must prosecute? This notion of allowing prosecutors to advise the police on matters of practice and procedure toward cases ultimately handled by the prosecutor was a prescription for just the sort of disaster we now experience. Instead of rendering legal advice, prosecutors have entered into a criminal conspiracy with police, jailers, magistrates, and Judges toward easing the prosecutorial burden, maintaining a high conviction rate, and securing funds for the State.
Prosecuting attorneys, acting in concert and collusion with police officers, jailers, magistrates, and Judges have carefully crafted a set of practices and procedures intended to place persons accused of crime in such a position of psychological disruption that they have little reasonable alternative to entering into a plea bargain with prosecutors. In order to accomplish this, most every right of the citizen is not only violated, but violated in a so contrived, aggressive, and blatant a manner as to completely interrupt any expectation of justice and fair treatment. The accused are put in a seemingly impossible position wherein the most reasonable solution is to take a deal to put an end to the torture and torment intentionally perpetrated on them toward just that reaction and outcome.
The following is complex and convoluted. When considered individually, in isolation, the individual acts alleged appear little more than a series of minor adjustments toward administrative convenience and adjudicative expediency, however, when more carefully examined in pari materia, the effect is glaring and undeniable. Likewise, the underlying law so blithely abated by the actors indicated, when considered from the perspective of the corpus juris, demonstrate a well crafted body of law, a body of law which anticipated the very violations indicated and included specific statutes enacted to prevent just the result demonstrated herein.
What immediately follows is a demonstration of a set of practices specifically designed to render citizens too fearful to object to the improper practices they are subjected to and how those practices have been finely focused toward the facilitation of the implementation of a plea bargain. Subsequently, Respondent will demonstrate a second conspiracy, separate from the first, yet specifically intended to facilitate the first. The second conspiracy presented will demonstrate how all these public officials can perpetrate the alleged crimes with virtual impunity and how prosecutors violate very specific statutory requirements in order to protect members of the alleged conspiracy from the criminal consequences of their participation in acts orchestrated by prosecutors.
Affiant, at the time of arrest, gave police no reason to fear for their safety from Affiant. A search of Affiant was made subsequent to arrest where no weapons were found; Affiant ‘s hands were cuffed with no effort to resist; neither did Affiant offer any verbal threat of physical resistance or retaliation. When directed to the police car, Affiant complied without physical resistance.
In the instant cause, there was no flood, storm, riot, or any other intervening circumstance to necessitate the officer’s immediate attention, which would justify a delay in bringing Affiant before a magistrate. Neither did Affiant observe the officer, through the use of his police radio or cell phone, make any attempt to locate a magistrate for the purpose of securing jurisdiction to continue to hold Affiant.
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 circumstances.[FN85] Robinson v. Lovell, 238 S.W.2d 294 (Tex. Civ. App. Galveston 1951), writ refused n.r.e.
Article 14.06 Texas Code of Criminal Procedure directs the arresting officer to take the person 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.”
Without considering the lawfulness of the warrantless arrest, for the purpose of jurisdiction, this particular argument will only consider the actions subsequent to arrest. The immediate issue addresses the duty of the arresting officer to take the accused before a magistrate to secure jurisdiction such that the State may rightfully continue to restrict Affiant at liberty.
 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).
 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
The arresting officer failed to take Affiant directly to 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 Affiant under Texas State Law is Heath v Boyd, 141 Tex. 569; 175 S.W.2d 214; 1943 Tex. LEXIS 370.
“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. Morgan et 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
The arresting officer in this case made no due diligent effort to locate a 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 F2d 1232
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 to include every surrounding county (see Texas Code of Criminal Procedure 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. Affiant 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
The arresting officer, acting in accordance with established police policy, took Affiant directly to jail having made no effort to locate a magistrate for the purposes stipulated by Article 14.06 and the federal requirement articulated by Gerstien v Pugh supra.
Affiant was taken to jail, not because the arresting officer was unable to locate a magistrate in the county or any surrounding county, but as a matter of police policy. Arresting officer was acting in furtherance of an ongoing set of schemes intended to punish, coerce, and intimidate Affiant in order to suppress any dissent or objection.
- Merely being arrested is for most persons an “awesome and frightening” experience, an invasion of considerable proportion. ALI, Model Code for Pre-Arraignment Procedure, Commentary290-91 (1975); see Foley v. Connelie , 435 U.S. 291, 98 S. Ct. 1067, 55 L. Ed. 2d 287, 46 U.S.L.W. 4237, 4239 (1978 (“An arrest . . . is a serious matter for any person. . . . Even the routine traffic arrests made by the state trooper . . . can intrude on the privacy of the individual.”); United States v. Watson, supra, 423 U.S. at 428 (Powell, J., concurring. (“A search may cause only annoyance and temporary inconvenience to the law-abiding citizen, assuming more serious dimension only when it turns up evidence of criminality. An arrest, however, is a serious personal intrusion regardless of whether the person seized is guilty or innocent.”); Chimel v. California, supra, 395 U.S. at 776 (White, J., dissenting (“the invasion and disruption of a [**30] man’s life and privacy which stem from his arrest are ordinarily far greater than the relatively minor intrusions attending a search of his premises.”). United States v. Reed, 572 F.2d 412; 1978 U.S. App. LEXIS 11727; 3 Fed. R. Evid. Serv. (Callaghan) 155
The personal intrusion referenced by United States v. Reed supra is exactly the effect intended by the policy to arrest and transportation directly to the jail.
- In evaluating the constitutionality of conditions or restrictions of pretrial detention that implicate only the protection against deprivation of liberty without due process of law, we think that the proper inquiry is whether those conditions amount to punishment of the detainee. n16 For (HN4Go to the description of this Headnote.under the Due Process Clause), a detainee may not be punished prior to an adjudication of guilt in accordance with due process of law. n17 [*536] See Ingraham v. Wright, 430 U.S. 651, 671-672 n. 40, 674 (1977); Kennedy v. Mendoza-Martinez, 372 U.S. 144, 165-167, 186 (1963); Wong Wing v. United States, 163 U.S. 228, 237 (1896). A person lawfully committed to pretrial detention has not been adjudged guilty of any crime. He has had only a “judicial determination of probable cause as a prerequisite to [the] extended restraint of [his] liberty following arrest.” Gerstein v. Pugh, supra, at 114; see Virginia v. Paul, 148 U.S. 107, 119 (1893). And, if [***467] he is detained for a suspected violation of a federal law, he also has had a bail hearing. See 18 U. S. C. §§ 3146, 3148. n18 Under [**1873] such circumstances, the Government concededly may detain him to ensure his presence at trial and may subject him to the restrictions and conditions of the detention facility so long as those conditions and restrictions [*537] do not amount to punishment, or otherwise violate the Constitution. Bell v. Wolfish, 441 U.S. 520
Once secured in the jail, Affiant was subjected to punishing treatment. Affiant was held in solitary confinement for ______ hours with no mattress or
In the instant cause, Affiant had not been found guilty of any crime; Affiant had not yet even been accused of any crime. Affiant was merely being held awaiting a judicial determination as to rather or not Affiant would be accused.
By the instant cause, it is asserted and alleged, Affiant has been deliberately secreted form a magistrate who could make a determination of probable cause which would authorize the pre-trial restriction at liberty envisioned by Bell v Wolfish supra. It is further alleged Affiant was secreted form said magistrate for the express purpose of exposing Affiant to the punishing treatment of the booking process in order to prevent Affiant from asserting or demanding his rights and to allow for the creation of a permanent criminal record.
In the event Affiant had been taken to the nearest magistrate and a proper examination held into the sufficiency of the allegation resulting in a determination of no probable cause, it would have been patently illegal for the police to book the accused into jail. Note, Texas Code of Criminal procedure Article 14.06 Supra, wherein there is a clear stipulation to, if necessary; take the person to a magistrate in an adjoining county. It can hardly be construed that the Legislature intended the accused be booked into the jail as if already an inmate, then taken to another county to be brought before a magistrate for a determination of probable cause which could well render the booking procedure illegal.
While the arresting officer may have had jurisdiction to arrest Affiant, at the point at which Affiant was secured in custody, arresting officer’s jurisdiction “evaporated” and s/he had authority only to detain the accused for as long as it reasonably took, considering all the immediate circumstances, to bring the accused before a magistrate for an examination into the sufficiency of the allegation and a proper warrant could be secured. The arresting agency had no authority to treat Affiant as if he had already been charged and convicted.
Absent a showing that the booking procedure was reasonably necessary in order to protect the safety of the arresting officer or jail officials, or that the booking procedure was necessary to secure the accused from escape, there is no legal necessity for subjecting Affiant to the humiliating and punishing treatment involved in booking. Neither would such procedures be allowed where a probable cause determination found no probable cause. Therefore, the booking procedure, which would be a clear violation of the due course of the laws where no probable cause was found, does not become valid or proper because the accused was deliberately secreted from a magistrate.
It is the specific contention and allegation of Relator that the arresting officer failed to make any attempt to locate a magistrate in order to use the pretense of an inability to locate same in order to justify exposing Affiant to the humiliation and punishment of the booking procedure and an extended period of incarceration. Said treatment has the effect of denying Affiant in the presumption of innocence and increases the inhibiting effect intended to suppress the expression of rights by Affiant and is in violation of Section 39.03 and 71.02 Texas Penal Code.
It is the further contention that, while the jail may detain the accused until such time as a magistrate can be located in the event a due diligent effort has been made to locate same, any use of the time as an opportunity to punish Affiant must be considered an intentional violation of the due course of the laws and a violation of the rights of Affiant to same.
- [*343] The purpose of this impressively pervasive requirement of criminal procedure is plain. A democratic society, in which respect for the dignity of all men is central, naturally guards against the misuse of the law enforcement process. Zeal in tracking down crime is not in itself an assurance [***826] of soberness of judgment. Disinterestedness in law enforcement does not alone prevent disregard of cherished liberties. Experience has therefore counseled that safeguards must be provided against the dangers of the overzealous as well as the despotic. The awful instruments of the criminal law cannot be entrusted to a single functionary. The complicated process of criminal justice is therefore divided into different parts, responsibility for which is separately vested in the various participants upon whom the criminal law relies for its vindication. Legislation [*344] such as this, requiring that the police must with reasonable promptness show legal cause for detaining arrested persons, constitutes an important safeguard — not only in assuring protection for the innocent but also in securing conviction of the guilty by methods that commend themselves to a progressive and self-confident society. For this procedural requirement checks resort to those reprehensible practices known as the “third degree” which, though universally rejected as indefensible, still find their way into use. It aims to avoid all the evil implications of secret interrogation of persons accused of crime. It reflects not a sentimental [**615] but a sturdy view of law enforcement. It outlaws easy but self-defeating ways in which brutality is substituted for brains as an instrument of crime detection. n8 A statute carrying such purposes is expressive of a general legislative policy to which courts should not be heedless when appropriate situations call for its application.
- n8 “During the discussions which took place on the Indian Code of Criminal Procedure in 1872 some observations were made on the reasons which occasionally lead native police officers to apply torture to prisoners. An experienced civil officer observed, ‘There is a great deal of laziness in it. It is far pleasanter to sit comfortably in the shade rubbing red pepper into a poor devil’s eyes than to go about in the sun hunting up evidence.’ This was a new view to me, but I have no doubt of its truth.” Sir James Fitzjames Stephen, A History of the Criminal Law of England (1883), vol. 1, p. 442 note Compare § § 25 and 26 of the Indian Evidence Act (1872. S v McNabb, 318 U.S. 332,343 *; 63 S. Ct. 608, **;87 L. Ed. 819, ***; 1943 U.S. LEXIS 1280
It is the specific allegation of Relator that the booking process is practiced by the jail toward two purposes. The first is to continue the abusive and intimidating psychological intimidation of the accused in order to prevent any defense against the allegations made. The second is to increase the average head count at the jail in order to allow the jail to show an increased population and thereby petition for greater budgets and higher reimbursements from governmental agencies.
It is the specific allegation of Relator that the moment the arresting started the engine on the patrol car, put it in gear and headed toward the jail instead of toward the nearest magistrate, the crime was complete. From that point onward, all the time Affiant was held in custody was in violation of law and an act of Kidnapping.
- 20.03. KIDNAPPING. Texas Penal Code
A person commits an offense if he intentionally or knowingly abducts another person.
(b) It is an affirmative defense to prosecution under this section that
the abduction was not coupled with intent to use or to threaten to use deadly force;
the actor was a relative of the person abducted; and
the actor’s sole intent was to assume lawful control of the victim.
An offense under this section is a felony of the third degree.
It is the further contention of Relator that, as the alleged act of kidnapping was committed in furtherance of an ongoing criminal conspiracy to extort funds from Affiant in for form of fines and fees collected in violation of the due course of the laws of the State of Texas and that the alleged schemes included felony acts to the detriment of Affiant , the act of kidnapping is more specifically defined as Aggravated Kidnapping.
20.04. AGGRAVATED KIDNAPPING.
- A person commits an offense if he intentionally or knowingly abducts another person with the intent to:
- hold him for ransom or reward;
- use him as a shield or hostage;
- facilitate the commission of a felony or
- the flight after the attempt or commission of a felony;
- inflict bodily injury on him or violate or abuse him sexually;
- terrorize him or a third person; or
- interfere with the performance of any governmental or political function.
- A person commits an offense if the person intentionally or knowingly abducts another person and uses or exhibits a deadly weapon during the commission of the offense.
- Except as provided by Subsection (d), an offense under this section is a felony of the first degree.
- At the punishment stage of a trial, the Affiant may raise the issue as to whether he voluntarily released the victim in a safe place. If the Affiant proves the issue in the affirmative by a preponderance of the evidence, the offense is a felony of the second degree.
All who participated with the arresting office in the confinement of Affiant are likewise trespassers on the law and violators of Texas Constitutional provisions, and therefore, cannot claim to be acting under any jurisdiction as no jurisdiction allows for criminal acts to be committed under color of any official authority.
Under the doctrine of trespass ab initio, where a party exceeds an authority given by law, the party loses the benefit of the justification and is considered a trespasser ab initio, 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
Attached and included by reference, the court will find a verified criminal affidavit alleging the act of Kidnapping by the arresting officer. While the act is more commonly referred to as “false imprisonment” there is no such statute in Texas. In Texas, the proper citation is kidnapping. Further, as the act was aggravated by the fact that the arresting officer was displaying a deadly weapon at the time eliminating any possibility of resistance by Affiant of the criminal act and the act was committed in order to facilitate the subsequent commission of the felony act of Tampering With a Government Document, Article 37.10 Texas Penal Code by the jailer and magistrate (full explanation below).
Subjecting Affiant to unnecessary and humiliating procedures when a probable cause hearing could render them unnecessary serves the prosecutor’s interest. By facilitating coercive practices during booking, the jail psychologically softens up the accused for “the deal” by leaving them mentally and physically exhausted, coerced, and intimidated. The necessity of this will become apparent when we get to the prosecutorial practice of secreting the records from the clerk of the court below.
It must be construed the facts of the cause, Affiant was subjected to imprisonment after arrest as a matter of policy and not necessity. Therefore, the act wherein Affiant was abducted at constructive gunpoint by the arresting officer and taken straight to jail instead of some magistrate is an act of Aggravated Kidnapping as defined by PC Article 20.04 supra (see verified criminal affidavit alleging same attached).
In as much as the rights of Affiant were violated as a matter of policy, Affiant asserts, the arresting agency, by not seeking the proper authority became a trespasser ab inito as with all others who participated in the confinement of Affiant, and the court is thereby left without jurisdiction in the instant cause.
Where several people act together in pursuit of unlawful act, each one is liable for collateral crimes, even though unplanned and unintended, if those crimes are foreseeable, ordinary and probable consequences of preparation or execution of the unlawful act. Curtis v. State (Cr.App. 1978) 573 S.W.2d 219. Criminal Law 59(4)
On showing that all persons arrested by the agency are taken directly to jail and no due diligent effort is made by the arresting officer to locate a magistrate, it must be construed the practices are participated in by more than one person. It must further be construed those involved had to interact with one another in an effort to standardize and co-ordinate the procedures practiced. It must thereby be construed all participants conspired with one another toward the furtherance of the above indicated conspiratorial relationship.
Texas Penal Code § 15.02. CRIMINAL CONSPIRACY.
- A person commits criminal conspiracy if, with intent that a felony be committed:
- he agrees with one or more persons that they or one or more of them engage in conduct that would constitute the offense; and
- he or one or more of them performs an overt act in pursuance of the agreement.
- An agreement constituting a conspiracy may be inferred from acts of the parties.
- It is no defense to prosecution for criminal conspiracy that:
- one or more of the coconspirators is not criminally responsible for the object offense;
- one or more of the coconspirators has been acquitted, so long as two or more coconspirators have not been acquitted;
- one or more of the coconspirators has not been prosecuted or convicted, has been convicted of a different offense, or is immune from prosecution;
- the actor belongs to a class of persons that by definition of the object offense is legally incapable of committing the object offense in an individual capacity; or
- the object offense was actually committed.
- An offense under this section is one category lower than the most serious felony that is the object of the conspiracy, and if the most serious felony that is the object of the conspiracy is a state jail felony, the offense is a Class A misdemeanor.
In the event Affiant has been subjected to a deprivation of rights subsequent to a criminal conspiracy by those officials responsible for the arrest and subsequent deprivation of liberty of Affiant , all are disqualified, declared not credible persons, and rendered without jurisdiction to act in the instant cause.
Affiant , after being arrested, booked into the jail, and held overnight was brought before a magistrate the next day. At said appearance criminal charges were read to Affiant wherein Affiant was officially charged with committing criminal acts against the laws of the State of Texas, then Affiant was notified of the amount of bail, which had been set. At said hearing, when Affiant first observed magistrate, the court was in possession of a file from which magistrate read the allegations against Affiant . This raises a question: Where, how, by what legal mechanism did the court accept into evidence, allegations against Affiant outside the presence of Affiant who was under the absolute control of the State?
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. n14 See Tamminen v. State, 644 S.W.2d 209; 217 (Tex.App.–San Antonio 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
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 Chapter 16 Texas Code of Criminal Procedure. The chapter has been carefully crafted by the Legislature to insure the rights of the accused are upheld and that the accused is protected from abuses by the governmental instruments the people have created to enforce the criminal laws. Nothing in Chapter 16, or any other chapter, authorizes examining trials to be held in secret.
The first thing that must happen is the convening of a hearing by the 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 Affiant , 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 Affiant 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.
Either there are some secret practices and procedures not codified into law, or the magistrate came into possession of evidence outside the legal structures put in place to protect the accused from just the sort of abuse perpetrated in this instance.
At the hearing wherein bail was set, no plea was requested or accepted by the court, neither was Affiant given opportunity to be faced with accuser nor was Affiant afforded opportunity to present exculpatory evidence and Affiant was not present at the hearing where probable cause was determined and the evidence was presented to the court and was accepted into evidence and a probable cause determination made in secret.
OVERVIEW: Affiant was convicted of aggravated rape by a jury, based on evidence that included the testimony of the victim and her companion, who were held at gunpoint, raped, and beaten by Affiant 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 Affiant’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 Affiant 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
The above is not a difficult concept, neither 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. No right-minded magistrate, in good faith, can consider such behavior anything but the most outrageous abuse.
Article 14.06 supra refers to Article 15.17 Texas Code of Criminal Procedure (please don’t try to read this mess, I have it outlined below). .
- 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, 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. 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. 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. 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. 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. 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 Affiants in the county, the magistrate shall appoint counsel in accordance with Article 1.051. 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. 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. 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. 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. The counsel for the Affiant may obtain a copy of the recording on payment of a reasonable amount to cover costs of reproduction. For purposes of this subsection, “electronic broadcast system” means a two-way electronic communication of image and sound between the arrested person and the magistrate and includes secure Internet videoconferencing.
The above is paragraph (a) of Article 15.17 Texas Code of Criminal Procedure. If ever there was a statute enacted which was designed to be misread and misinterpreted, this is the one. Below you will find the statute outlined for reference:
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,
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.
he 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.
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.
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.
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.
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 Affiants in the county, the magistrate shall appoint counsel in accordance with Article 1.051.
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.
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.
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.
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:
the date on which the pretrial hearing ends; or
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.
The counsel for the Affiant may obtain a copy of the recording on payment of a reasonable amount to cover costs of reproduction.
For purposes of this subsection, “electronic broadcast system” means a two-way electronic communication of image and sound between the arrested person and the magistrate and includes secure Internet videoconferencing.
If you read this statute, it gives the impression of covering all those things, which must be done subsequent to the arrest of an accused, however, that consideration would be deceiving. Article 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
Please notice Paragraph 9, and the highlighted section where it speaks of setting bail “if allowed by law.”
When a person is arrested on a formal criminal allegation, bail may not be set unless there is a finding of probable cause. If no probable cause if found in the examining trail under the provisions of Chapter 16 Texas Code of Criminal Procedure, 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.
Article 15.17 supra, for all its confusing language, provided no legal procedure for setting bail. The procedure prescribed for setting bail is well established. Chapter 17 Texas Code of Criminal Procedure at Article 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 Affiant by a peace officer if authorized by ‘‘Article 17.20, 17.21, or 17.22.
In the instant cause, Affiant was not arrested on suspicion; neither was Affiant being held as a material witness. Even if such were the case, before the magistrate can set bail, an examining trial must be held.
By the instant cause Affiant had been arrested subsequent to a formal criminal allegation and brought before a magistrate. This circumstance is contemplated by Article 2.10 Texas Code of Criminal Procedure
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.
Article 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 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 Chapter 16 Texas Code of Criminal Procedure, entitled COMMITMENT OR DISCHARGE OF THE ACCUSED, is in place.
While the magistrate had a duty to read Affiant his/her rights under Article 15.17, there was no provision there to determine probable cause, which would render lawful the setting of bail. Absent a finding of probable cause, bail could not be set.
Back to the question: How did the criminal allegations against Affiant get submitted to the magistrate outside a proper examining trial before which Affiant, subsequent to the immediate restraint on his liberty, had a right to attend?
The magistrate in the instant cause accepted into evidence allegations of criminal wrongdoing against Affiant while Affiant was being held without warrant in the Montgomery County jail.
Someone appeared before a magistrate and presented the court with evidence apparently sufficient to give a reasonable person cause to believe Affiant had committed the crimes alleged.
Assuming the arresting officer went before some magistrate and presented the magistrate with a criminal allegation against Affiant, 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?
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 Texas Rules of Evidence. 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.
Nothing exists in the court record to authenticate the testimony of the complainant to support the criminal allegation. Therefore, the complaint is insufficient on its face for lack of verified supporting affidavit.
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).
In either case, a hearing of some type was convened at which evidence was presented to the court ex parte, while Affiant was present in the building but physically restrained from being present at the hearing.
It is the specific allegation and contention of Affiant that, some person employed by the arresting agency, having no personal knowledge of the evidence, presented criminal allegations to the court and supporting evidence alleging criminal acts by Affiant, . It is further the contention of Affiant that said presentation occurred outside a proper hearing to which Affiant had a statutory right.
Art. 16.01. EXAMINING TRIAL.
“When the accused has been brought before a magistrate for an examining trial that 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.”
Art. 16.08. PRESENCE OF THE ACCUSED.
The examination of each witness shall be in the presence of the accused.
Relator alleges this act was committed in violation of Section 39.03 Texas Penal Code:
- 39.03. OFFICIAL OPPRESSION.
- A public servant acting under color of his office or employment commits an offense if he:
- intentionally subjects another to mistreatment or to arrest, detention, search, seizure, dispossession, assessment, or lien that he knows is unlawful;
- intentionally denies or impedes another in the exercise or enjoyment of any right, privilege, power, or immunity, knowing his conduct is unlawful; or
- intentionally subjects another to sexual harassment.
- For purposes of this section, a public servant acts under color of his office or employment if he acts or purports to act in an official capacity or takes advantage of such actual or purported capacity.
- In this section, “sexual harassment” means unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature, submission to which is made a term or condition of a person’s exercise or enjoyment of any right, privilege, power, or immunity, either explicitly or implicitly.
- An offense under this section is a Class A misdemeanor.
That the magistrate advised Affiant of an amount of bail having already been set, by the only method available to the magistrate to set bail, had to have found probable cause prior to the setting of bail. Having found probable cause, which gave the magistrate authority to set bail, the magistrate also had a duty to prepare an order committing Affiant .
Art. 16.17. Decision of judge
After the examining trial has been had, the judge shall make an order committing the Affiant to the jail of the proper county, discharging him or admitting him to bail, as the law and facts of the case may require. Failure of the judge to make or enter an order within 48 hours after the examining trial has been completed operates as a finding of no probable cause and the accused shall be discharged.
Gerstien v Pugh supra is clear on this point. The primary reason for taking the person before the magistrate is to secure this order so that the State may retain jurisdiction over Affiant . An examination of the court record will find no order committing Affiant to the jail or setting bail prepared by magistrate within 48 hours of the preliminary hearing. Therefore, Relator contends the bail required of Affiant is an illegal taking of Affiant s property.
An examination of the court record will show no warrant issued by magistrate subsequent to the hearing wherein probable cause was found as required by Article 16.17 supra. Therefore, the court has no jurisdiction of any kind over Affiant and all acts by the court are acts committed without jurisdiction and are, therefore, void.
In order for the court to have jurisdiction some credible person must present a complaint to some magistrate. By the above Relator addressed arguments to the court under the presumption of the existence of a criminal complaint. It is entirely possible that a valid criminal complaint did exist when Affiant was brought before the magistrate. An examination of the court record will find no such complaint on record.
It is possible the arresting officer prepared just such a document. However, if such a document was prepared and even if such a document was presented to the magistrate, said document does not appear in the court record. If said document does exist, it has not been placed within the protection of the clerk of the court of original jurisdiction. An examination of the court record will find no record of a criminal complaint, which was presented by anyone to any magistrate alleging a criminal act by Affiant.
Subsequent to the hearing wherein probable cause was determined, magistrate was directed by Article 17.30 Texas Code of Criminal Procedure 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 Affiant may be tried, writing his name across the seals of the envelope. The voluntary statement of the Affiant, the testimony, bail bonds, and every other proceeding in the case, shall be thus delivered to the clerk of the proper court, without delay.
There in nothing in the court record to indicate the magistrate complied with the requirement of Article 17.30 supra. In point of fact, there is nothing in the court record at all. There is no court record. Therefore, it must be presumed 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 Section 37.10 Texas Penal Code:
- 37.10. TAMPERING WITH GOVERNMENTAL RECORD.
A person commits an offense if he:
knowingly makes a false entry in, or false alteration of, a governmental record;
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;
intentionally destroys, conceals, removes, or otherwise impairs the verity, legibility, or availability of a governmental record;
It is the contention and specific allegation of Relator, after the hearing wherein Affiant was set to bail, magistrate did not forward the records of the hearing to the clerk of the proper court, but rather, returned them to the jailer. It is the specific allegation of Relator that magistrate acted in concert and collusion with jailer to deny Affiant in the due course of the laws by secreting the charges against Affiant from the clerk of the proper court, thereby, placing Affiant in a state of legal limbo, wherein Affiant finds his liberty restricted by being bound to the court, his property improperly taken by being forced to render it to a bondsman in order to secure release from jail, yet unable to render actions in his/her behalf as there is no record of the above proceedings. It is as if Affiant exists in a state of limbo between arrest and trial.
It is the contention and specific allegation of Relator that the jailer at the jail where Affiant was being held is the person who presented criminal allegations to the magistrate in a secret hearing where the magistrate found probable cause. After the magistrate held the public hearing the magistrate returned the file containing all the records referenced by Article 17.30 Supra to the jailer. The jailer then forwarded said records to the prosecuting attorney in whose files said records now reside.
This period of time between arrest and indictment or formal presentment of a charge to the court of jurisdiction may not be construed as a period of pendency. Pendency may exist when a charge has been made against a Affiant who has never been arrested, but when the accused is taken into custody, or his liberty restricted in any way, pendency does not apply and the speedy trial clock should begin to toll. However, since the magistrate tampered with the record by secreting it to the prosecuting attorney in lieu of the Clerk of the Court, an artifical state of pendency is created leaving the accused in the above referenced state of legal limbo.
It is therefore the contention and specific allegation of Relator that the prosecuting attorney now holds said records to the exclusion of the clerk of the proper court in violation of Section 37.10 supra. The reason prosecutors have the records forwarded to their department to the exclusion of the clerk of the court having original jurisdiction is deliberately malicious and multifarious as will be shown below.
By directing magistrates to forward records, by way of jailers, to the prosecuting attorney, the prosecutor manages to interrupt the prosecution and stop the speedy trial clock by placing the prosecution in artifical state of pendency.
This case presents the issue of whether a complaint, filed in a justice court, will toll the running of the statute of limitations in a felony case. This question appears to be one of first impression. We hold that such a complaint does not toll the running of the period of limitations.
Article 12.05, supra, provides that the period of limitations will be tolled only after the “indictment, information, or complaint is filed in a court of competent jurisdiction . . . .” In Hultin v. State, 171 Tex.Cr.R. 425, 351 S.W.2d 248, 255, this Court [*662] stated: “A court of competent jurisdiction means a court that has jurisdiction of the offense.”
In Hultin, it was further stated that jurisdiction “includes the three essentials necessary to the jurisdiction of a court; the court must have authority over the person and the subject matter, and it must have power to enter the particular judgment rendered.” See 16 Tex.Jur.2d, Criminal Law, Sec. 200. In 15 Tex.Jur.2d, Courts, Sec. 45, it is written: “Jurisdiction is the power to hear and determine issues of law and fact involved in a case, and to render a judgment thereon, after deciding the existence [**6] or non-existence of material facts and applying the law to the findings.”
V.T.C.A., Penal Code, Sec. 21.03, classifies aggravated rape as a felony of the first degree. Article 5, Sec. 8, Vernon’s Constitution of Texas Annotated, provides, in pertinent part: “The District Court shall have original jurisdiction in all criminal cases of the grade of felony . . . .” This provision is also incorporated in Art. 4.05, V.A.C.C.P. Article 5, Sec. 19, Vernon’s Constitution of Texas Annotated, provides, in pertinent part: “Justices of the peace shall have jurisdiction in criminal matters of all cases where the penalty or fine to be imposed by law may not be more than two hundred dollars . . . .” This provision is also incorporated in Art. 4.11, V.A.C.C.P.
While the justice court had authority to take a complaint and issue a warrant of arrest, we find that such court did not have jurisdiction of the felony offense charged herein so as to come within the ambit of Art. 12.05, supra. To hold to the contrary would be to allow a “credible person” to file a complaint in the justice court charging an accused with a felony offense without inquiry being made about the nature of the knowledge upon which [**7] an accuser bases his factual statements, and thereby toll the statute of limitations forever. See Art. 15.05, V.A.C.C.P.; Wells v. State, Tex.Cr.App., 516 S.W.2d 663. Ex parte Ward, 560 S.W.2d 660
In the instant cause is somewhat different from the example in Ex parte Ward, supra as in this instance, Affiant has been arrested. Due to the fact Affiant was arrested and remains bound at liberty, the contrived state of pendency works a specific deprivation of the rights of Affiant . It is the specific allegation and assertion of Affiant that such deprivation is exactly the point of the process by which Affiant was arrested and Subjected to continual mistreatment.
After Affiant was arrested and psychologically conditioned to feel helpless before the system, and completely at the mercy of the prosecutor, Affiant was rendered to a state of legal limbo in order to stop the speedy trial clock by rendering the cause to a perpetual state of pendency and give the pressures brought to bare time to mature and morph from anger and indignation, to anxiety, to fear, to mortification, to dread and subsequently to terror so that Affiant would be willing to take most any deal to end the torture.
Deferred adjudication has long been the subject of plea bargaining in Texas. Prosecutors and defense lawyers have found that they can settle more cases without the necessity of a trial if they consider conditioning a Affiant’s plea of guilty or nolo contendere on a recommendation that he be placed on probation without an adjudication of guilt. But, although the availability of this option has been useful during plea negotiations, it has raised difficult problems at later stages of the criminal prosecution. Watson v. State, 924 S.W.2d 711.
As stated above, prosecutors have so manipulated the system in order to render those accused of crime amenable to a plea bargain in order to end the torture they have been Subjected to. However, as often happens, the resulting probation restrictions are often violated in which case the accused stands facing often significant jail time and is likely to attempt to appeal. In order to prevent this, prosecutors have the records of the examination hearing forwarded to the him/her department to the exclusion of the clerk of the court having original jurisdiction as prescribed by Article 17.30 supra.
You will notice that it appears Affiant is given the right to appeal under Article 44.01(j) Texas Code of Criminal Procedure.
Art. 44.01. Appeal by state
- The state is entitled to appeal an order of a court in a criminal case if the order:
- dismisses an indictment, information, or complaint or any portion of an indictment, information, or complaint;
- arrests or modifies a judgment;
- grants a new trial;
- sustains a claim of former jeopardy;
- grants a motion to suppress evidence, a confession, or an admission, if jeopardy has not attached in the case and if the prosecuting attorney certifies to the trial court that the appeal is not taken for the purpose of delay and that the evidence, confession, or admission is of substantial importance in the case; or
- is issued under Chapter 64.
- The state is entitled to appeal a sentence in a case on the ground that the sentence is illegal.
- The state is entitled to appeal a ruling on a question of law if the Affiant is convicted in the case and appeals the judgment.
- The prosecuting attorney may not make an appeal under Subsection (a) or (b) of this article later than the 15th day after the date on which the order, ruling, or sentence to be appealed is entered by the court.
- The state is entitled to a stay in the proceedings pending the disposition of an appeal under Subsection (a) or (b) of this article.
- The court of appeals shall give precedence in its docket to an appeal filed under Subsection (a) or (b) of this article. The state shall pay all costs of appeal under Subsection (a) or (b) of this article, other than the cost of attorney’s fees for the Affiant.
- If the state appeals pursuant to this article and the Affiant is on bail, he shall be permitted to remain at large on the existing bail. If the Affiant is in custody, he is entitled to reasonable bail, as provided by law, unless the appeal is from an order which would terminate the prosecution, in which event the Affiant is entitled to release on personal bond.
- The Texas Rules of Appellate Procedure apply to a petition by the state to the Court of Criminal Appeals for review of a decision of a court of appeals in a criminal case.
- In this article, “prosecuting attorney” means the county attorney, district attorney, or criminal district attorney who has the primary responsibility of prosecuting cases in the court hearing the case and does not include an assistant prosecuting attorney.
- \Nothing in this article is to interfere with the Affiant’s right to appeal under the procedures of Article 44.02 of this code. The Relator’s right to appeal under Article 44.02 may be prosecuted by the Affiant where the punishment assessed is in accordance with Subsection (a), Section 3d, Article 42.12 of this code, as well as any other punishment assessed in compliance with Article 44.02 of this code.
- The state is entitled to appeal an order granting relief to an Affiant for a writ of habeas corpus under Article 11.072.
- The state is entitled to appeal an order entered under:
- Subchapter G or H, Chapter 62, that exempts a person from complying with the requirements of Chapter 62; and
- Subchapter I, Chapter 62, that terminates a person’s obligation to register under Chapter 62.
However, if you consider carefully the ramifications and actions of the prosecuting attorney, it becomes clear there is a malignant calculus at work here. The prosecutor, by secreting the records from the clerk of the court until such time as a deal can be negotiated, effectively eliminates the possibility of the filing of any defense motions prior to the ten day deadline after arrest imposed by Article 27.11 Texas Code of Criminal Procedure.
Art. 27.11. TEN DAYS ALLOWED FOR FILING PLEADINGS.
In all cases the Affiant shall be allowed ten entire days, exclusive of all fractions of a day after his arrest, and during the term of the court, to file written pleadings.
After the deal is made, in the event the accused violates probation, the option of appeal is left completely up to the caprice of the judge.
Prosecutor regularly advises magistrates to secret records from the clerk of the court and forward same to his office. I have looked in law and can find nothing directing a complaint to a prosecuting attorney, except in cases of violations of 552 Government Code. Complaints are directed to either “some magistrate,” or the clerk of the court of jurisdiction. The only circumstance were a complaint might be sent to a prosecuting attorney is when an official needs to secure legal advice.
Now, if an officer has reason to believe a crime has been committed and is seeking legal advice about pursuing criminal allegations, this is probably a good idea and the prosecutor could certainly give legal advice, but this is not what happens. The prosecutor could advise the official of the propriety of pursuit and legal positions. However, this is not what is happening. After a person has been arrested and the arresting officer has presented a complaint to “some magistrate,” a prosecution had commenced. The prosecutor can give advice, but not take possession of the court records.
Following the requirement of Article 17.30 supra preserves all the evidence the Magistrate used in order to make the determination to bind the individual over for trial. This also gets a cause number set so the accused can file motions and other papers in his/her defense. Also, by forwarding the charging instrument (the complaint) to the Clerk of the Court that will try the case, jurisdiction is properly transferred to the proper court.
The problem this causes for the prosecutor is, a prosecution commences when a magistrate is presented with a complaint.
In fact, it has been held, long ago and recently, that the filing of a complaint accusing one of a felony offense with a justice of the peace is the initial step in the commencement of a prosecution under Texas law. Baskins v. State, 75 Tex. Crim. 537, 171 S.W. 723, 725 (1914); Ex parte Clear, 573 S.W.2d 224, 228 (Tex.Cr.App. 1978). The above cited by the court in Rios v State 688 S.W.2d 642
This creates a couple problems for the prosecutor. He cannot legally dismiss a prosecution once it has commenced if he is unable to get “the Deal” and doesn’t want to bother with a trial. The other is that filing the compliant with the clerk of the court starts the speedy trial clock and he then doesn’t have time to work the deal. To create the time he needs, prosecutors bury the records in the prosecutors files.
Magistrates are being trained and directed to ignore Article 17.30 and leave the file with the jailer who may or may not keep copies, but apparently sends a copy to the prosecuting attorney. This way there is no pesky complaint in the court record and the prosecutor has all the time s/he wants to work “the deal.”
Our law consists of numerous interlacing checks and balances which must always be maintained in order to preserve our constitutional form of government.
It is apparent that our procedure, which authorizes prosecutions by information presented by the prosecuting attorney, is bottomed upon the proposition that there must be a supporting affidavit, without which an information cannot be lawfully presented. WILMA HAZEL KENNEDY v. STATE (02/09/55) 276 S.W.2d 291, 161 Tex. Crim. 303
The Court went on to say:
The rule was so well established by the former court of appeals that opinions after 1891 routinely followed it without further explication. But there are strong public policy considerations dictating the rule.
An information is a “primary pleading in a criminal action on the part of the State,” Article 27.01, V.A.C.C.P., a written pleading in behalf of the State drawn, filed and presented by a prosecuting attorney charging an accused with an offense that may be prosecuted under the law. Article 21.20, V.A.C.C.P. in order to “protect its citizens from the inherent dangers arising from the concentration of power in any one individual,” Kennedy v. State, 161 Tex. Crim. 303276 S.W.2d 291 (1955) (Opinion on Motion for Rehearing, at 664), the Legislature precluded a prosecutor from presenting an information “until affidavit has been made by some credible person charging the Affiant with an offense,” and also mandated, “The affidavit shall be filed with the information.” Article 21.22, supra. Such an affidavit is, of course, a complaint within the meaning of Article 15.04, V.A.C.C.P. “In other words, a prosecuting attorney is not authorized to institute prosecutions in the county court upon his independent act or of his own volition.” Kennedy v. State, supra, at 294. One may not be “both the accuser and the prosecutor is misdemeanor cases.” Wells v. State, 516 S.W.2d 663, at 664 (Tex.Cr.App. 1974). Compare Glass v. State, 162 Tex. Crim. 598, 288 S.W.2d 522 (1956); Catchings v. State, 162 Tex. Crim. 342, 285 S.W.2d 233, at 234 (1955).
This prevents a prosecutor from initiating a prosecution. By secreting the complaint from the clerk of the court, the prosecutor can effectively interrupt the prosecution so that it is not initiated by the filing of the complaint. Since there is no record of the arrest in the records of the court, the prosecutor can effectively delay the prosecution indefinitely, or initiate same at his caprice by simply having the arresting officer come in and prepare a new complaint, date it the date it is signed, and present that to the court, giving the impression the prosecution commences on the filing of the fraudulent complaint. The original never will reach the court record.
Jailers will argue they must have the complaint in their records as required by the jail standards commission. Either the State intended the Jailers keep a copy or ordered jailers to act in concert and collusion with the magistrate in clear and direct violation of the specific mandate of particular law (Article 17.30 CCP).
In the end, I suppose it wouldn’t matter who had copies of the complaint so long as the original has been properly placed in the protection of the Clerk of the Court. Without a proper complaint in the Court record, the Court is without jurisdiction. If the complaint is not sealed up and forwarded to the clerk of the court and kept in the clerk’s protection, the affidavit becomes compromise and fatally defective.
While intercepting the complaint may be a slick prosecutorial maneuver, nothing is perfect, and neither is this. There are those necessary documents that sometimes are needed by others. Records of bonds and court appointed counsel sometimes show up in the files. Bondsmen and attorneys often need them, so the prosecutor can’t always hide them. Also, the information must reflect the date of offense and this gives the whole game away.
So, if you look in the criminal records of the District Court, you will find an indictment and the deal, sometimes a bond form or a request for court appointed counsel, but no complaint or statement of probable cause.
The presence of a bond or request for court appointed counsel begs the question:
“How did the magistrate make a determination of probable cause against a person who had been arrested when no complaint has been filed against the individual? How can a person be bound to the court and restricted at their liberty, either in jail or out on bond with restricted options, without someone accusing the person of a crime? And, how can the magistrate defend against a claim of false imprisonment for binding a citizen to the court when there is no criminal complaint?”
Prosecutors, by advising magistrates to forward the records to their office are able to exercise discretion on rather or not to pursue prosecution by the above mechanization’s. They also accrue the power to dismiss prosecutions by simply never presenting the complaints to the clerk of the court. This is a power specifically denied prosecutors by Article 32.02 Texas Code of Criminal Procedure. Article 32.02 Texas Code of Criminal Procedure specifically forbids a prosecuting attorney from dismissing a prosecution without first filing a motion with the court and by permission of the presiding judge.
Art. 32.02. DISMISSAL BY STATE’S ATTORNEY.
The attorney representing the State may, by permission of the court, dismiss a criminal action at any time upon filing a written statement with the papers in the case setting out his reasons for such dismissal, which shall be incorporated in the judgment of dismissal. No case shall be dismissed without the consent of the presiding judge.
The court should notice there are two sentences in this statute and both say the same thing. You will never see this in a statute again. It is as if the Legislature wanted to be sure there was no misunderstanding on this matter so they stated it twice. Prosecutorial discretion (where a prosecutor has discretion to decide what to prosecute and what not to), while it may be allowed somewhere, in Texas it is specifically forbidden.
By secreting the complaint to the prosecuting attorney instead of filing it with the proper court, the prosecution is interrupted. The prosecutor manages to subvert the clearly stated intent of Article 32.02 Texas Code of Criminal Procedure.
If you go to the jail and get a list of all the people recently arrested, then go to the corresponding courts and check the court records there, for the most part you will find nothing. Keep in mind, the person has been arrested, hauled before a magistrate who determined there was sufficient evidence to bind the person over for trial and bail was set. The person was then either released on bail or remanded to the jail in the event the individual could not raise bail, however, as far as the court is concerned, they do not exist. The accused find themselves in a legal limbo where there is no cause in existence against them and, therefore, no place where they may seek legal remedy by the filing of motions. There will be no cause against the accused until the prosecutor manages to squeeze out a deal, then a record will be filed with the court.
The original records of arrest never make it to the protection of the clerk of the court. They simply disappear into the prosecutor’s files. No challenge can be made to the original determination of probable cause as there never is a proper determination made and the records of the hearing have been made to disappear.
The courts have consistently held that a prosecution commences when a person is arrested or when a complaint is presented to some magistrate. That is what was intended, but that is not how it works in Johnson County. In Johnson County, you can be arrested for any bogus allegation, hauled before a magistrate who will not perform a proper examination into the sufficiency of the allegation, but will rather, rubber stamp the arrest, bind you over for trial, then cast you into legal limbo by secreting the proper documents from the protection of the clerk of the proper court as clearly prescribed by law.
By secreting the compliant and all other documents had in the hearing to the prosecuting attorney, there is no record in the proper court that you have ever been arrested. If you try to file a motion or any other document in the cause, you will find there isn’t one. No cause, no record, no anything. Sure, there are records somewhere, but just try to find them. You will find misdirection, obfuscation, intimidation, and frustration as I have. If you persist, you will most certainly find yourself castigated, intimidated, pushed around, and subjected to all manner of threat by people displaying loaded pistols and bad attitudes.
Putting the accused in a legal limbo serves two prosecutorial purposes: the first is that it keeps the speedy trial clock from starting and gives the prosecutor all the time he needs to work “The Deal.” He has the person on bail or sitting in jail, in either case, he has leverage to start turning the screws. He will force them to attend bogus hearings specifically called to force the accused to meet with the prosecutor where he gets to threaten them with all the things he will do to them if they don’t take his perfectly reasonable deal.
The habitual criminal knows the score. He knows the prosecutor does not want to take him to court. Criminal trials are a real pain. What the prosecutor is interested in is making a deal and the criminal knows that and knows how to work the system. It is the innocent that are a problem. They don’t want anything to do with a deal. They want their day in court, therefore, they take a little longer.
The person wrongly accused and abused by the system is usually outraged and angry, in no mood to take the prosecutor’s perfectly reasonable deal. What the prosecutor needs is time. He needs time and leverage. He needs the person at his beck and call, bound at his liberty, constantly subject to bail revocation and being tossed in the slammer. He needs time for the outrage the innocent justly feel to morph into dread, to fear, then to outright terror.
This tends to take more than 180 days, even with the help of court appointed counsel. As to the assistance of court appointed counsel, they are part of the problem as the trust the accused has in counsel in terribly misplaced. Most people still think a person’s attorney is going to go to bat for them and protect their rights. Not in this life; not in Texas. In Texas, most attorneys pay their overhead with the fees they get as court appointed counsel and this is how it works. The court appoints an attorney to represent a client; the attorney goes to the prosecutor and asks for a deal; the attorney then goes to the client and tells him, here is the deal, take it as it is your only chance.
The certainly begs the question: Why would a Affiant’s counsel do such a thing? It always goes back to the money. If an attorney puts on a vigorous defense for his client, he will be paid about $350 for his representation. If he gets the client to take a quick deal, he gets paid (you guessed it) about $350. Besides, if he forces the judge to sit through a court trial, he can forget about getting appointed to represent any more clients.
Just ask any attorney if Judges will rule against subsequent clients to get back at any attorney who annoys them and they will tell you, “You are damn right they will.”
I mentioned two purposes above. The second concerns certain obstinate citizens who simply refuse to be bullied and simply will not be reasonable and “cop a plea” in order to end the misery. When it becomes clear the accused will not give up his claim of innocence the prosecutor must then look at the feasibility of winning in court and if the case is worth his time and effort; if not, he my want to drop the case. With no record of the allegation, the prosecutor can just let the case ride indefinitely in the hope that, in the event the accused gets charged with something else, he can drag up this old charge and use it as leverage to get a deal on the second.
Things are far more complex and much worse that I have indicated here. The prosecutor, by giving legal advise to the police and lower courts, have arranged practices and procedures to serve the prosecutorial purpose to the detriment of us all and that is the very reason he tried to send me back to the Sheriff.
Besides interrupting the speedy trial clock, by having the compliant forwarded to the prosecutor’s office, the prosecutor gets to take control of the prosecution. Something specifically forbidden by law is accomplished by getting other officials to simply ignore law. Since the complaint never gets to the clerk of the proper court, the cause never becomes a cause unless or until the prosecutor decides to file it.
Prosecutors have one minor problem with the above; it is illegal. Everything is illegal. So what happens if someone starts making waves? What if someone realizes these practices are criminal and start filing criminal complaints to correct it? In a word, “nothing.”
A private citizen cannot file a criminal complaint against a public official in Texas. Well, that isn’t exactly true. A citizen can file a complaint; s/he can file all the complaints s/he wants to, but it is a futile effort as they will, as a matter of course and accepted practice, be forwarded to the prosecutor will simply trash them. That’s right, s/he will trash them.
Police officers by policy and accepted practice, are routinely directed to present complaints to prosecutors. If an officer has reason to believe a crime has been committed s/he is commanded to, what? Article 2.13 Texas Code of Criminal Procedure commands as follows:
Art. 2.13.    Duties and powers
- It is the duty of every peace officer to preserve the peace within the officer’s jurisdiction. To effect this purpose, the officer shall use all lawful means.
- The officer shall:
- in every case authorized by the provisions of this Code, interfere without warrant to prevent or suppress crime;
- Execute all lawful process issued to the officer by any magistrate or court;
- give notice to some magistrate of all offenses committed within the officer’s jurisdiction, where the officer has good reason to believe there has been a violation of the penal law; and
- arrest offenders without warrant in every case where the officer is authorized by law, in order that they may be taken before the proper magistrate or court and be tried.
- It is the duty of every officer to take possession of a child under Article 62.009(g).
It appears from the clear wording of the above statute that police officers are directed to present complaints to “some magistrate.” That may be what the statute says, but that is not what is done. Complaints are regularly, as a matter of policy, forwarded to prosecuting attorneys.
In the case where an officer does not receive a complaint from a citizen, but rather arrests a citizen then presents a complaint to some magistrate, that complaint is commanded sealed in an envelope and forwarded to the court having jurisdiction, but that doesn’t happen. Magistrates routinely give the complaints and all other records hand in the cause, to the jailer who forwards them to the prosecuting attorney.
By the above, complaints are routinely forwarded to prosecuting attorneys. Nothing in the Texas Code of Criminal Procedure directs a complaint to a prosecuting attorney. There are statutes that direct complaints to magistrates and statutes that direct those complaints to the clerks of the courts having jurisdiction, but nothing about bypassing the clerks and forwarding the documents to the prosecuting attorney.
In the case where the complaint is forwarded to the prosecutor, does the prosecutor have the authority to dismiss the prosecution by exercising his/her discretion and if so, precisely where does the prosecutor accrue this power to render judicial decisions? The Legislature certainly can’t do it as the overturning of the Speedy Trial Act clearly demonstrates. So, where does the prosecuting attorney get that authority?
The answer is simple, the prosecutor does not have the authority. As a matter of fact, the prosecutor has been specifically forbidden by particular statute to dismiss a prosecution (see Article 32.02 CCP supra.
Prosecutors have criminal complaints directed to them not so they can render legal advice to the police, but so they can exercise judicial discretion. They don’t want magistrates ruling on the sufficiency of complaints as, after all, they are learned counsel and it is they who will have to ultimately prosecute the cause, so it is logical to have them make the determination.
While that may be logical, it is certainly not legal. Our Constitutional Framers and subsequent Legislators knew well the great potential for abuse when power is concentrated in a single individual so they forbade prosecutors from making those determinations and put neutral magistrates in place to do just that. But prosecutors found neutral intervention inconvenient and potentially disastrous to “the deal.” They advised police and magistrates toward practices and procedures that are horrendously illegal, but those pesky citizens have a way of interfering with the best laid plans of mice and men. They even have the audacity to complain about it, sometimes even in writing. So, what to do? What are prosecutors to do when they have complaints against public officials forwarded to them?
Sure, the prosecutor is going to prosecute a public official for following advice the prosecutor has given them. Not in this life. In this life the prosecutor has commandeered the complaint and all s/he needs to do is simply throw it in the trash.
Art. 2.03. Neglect of duty
- It shall be the duty of the attorney representing the State to present by information to the court having jurisdiction, any officer for neglect or failure of any duty enjoined upon such officer, when such neglect or failure can be presented by information, whenever it shall come to the knowledge of said attorney that there has been a neglect or failure of duty upon the part of said officer; and he shall bring to the notice of the grand jury any act of violation of law or neglect or failure of duty upon the part of any officer, when such violation, neglect or failure is not presented by information, and whenever the same may come to his knowledge.
- (b) It is the duty of the trial court, the attorney representing the accused, the attorney representing the state and all peace officers to so conduct themselves as to insure a fair trial for both the state and the Affiant, not impair the presumption of innocence, and at the same time afford the public the benefits of a free press.
Under the Screws v State doctrine, it cannot be construed prosecutors are somehow unaware of the impropriety of this practice. If they are sane, they must know exactly the legal ramifications of their actions. I assure you, they know. They know because I have told them. I have crammed it down their throats with multiple and continuous complaints against them for just these behaviors, but they are not impressed.
The more I file the more they trash. I file on the trashers for trashing and the complaints go to the very individuals I allege against and they trash them all with absolute impunity.
We like to think the law matters. We need to believe there is some teeth in the authority of the individual to express and exert his/her individual rights. Unfortunately, at least in Texas, it is not so.
By failing to present the complaint to the Grand Jury along with an information, the prosecutor violates a law relating to his office, specifically Article 2.03 Texas Code of Criminal Procedure (see above). The act has the effect of secreting the compliant from “some magistrate,” and the information and complaint from the Grand Jury.
- 37.10. Tampering With Governmental Record
- (a) A person commits an offense if he:
- knowingly makes a false entry in, or false alteration of, a governmental record;
- 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;
- intentionally destroys, conceals, removes, or otherwise impairs the verity, legibility, or availability of a governmental record;
- possesses, sells, or offers to sell a governmental record or a blank governmental record form with intent that it be used unlawfully;
- makes, presents, or uses a governmental record with knowledge of its falsity; or
- possesses, sells, or offers to sell a governmental record or a blank governmental record form with knowledge that it was obtained unlawfully.
- It is an exception to the application of Subsection (a)(3) that the governmental record is destroyed pursuant to legal authorization or transferred under Section 441.204, Government Code. With regard to the destruction of a local government record, legal authorization includes compliance with the provisions of Subtitle C, Title 6, Local Government Code.
- Except as provided by Subdivision and by Subsection (d), an offense under this section is a Class A misdemeanor unless the actor’s intent is to defraud or harm another, in which event the offense is a state jail felony.
- An offense under this section is a felony of the third degree if it is shown on the trial of the offense that the governmental record was a public school record, report, or assessment instrument required under Chapter 39, Education Code, or was a license, certificate, permit, seal, title, letter of patent, or similar document issued by government, by another state, or by the United States, unless the actor’s intent is to defraud or harm another, in which event the offense is a felony of the second degree.
- An offense under this section, if it is shown on the trial of the offense that the governmental record is described by Section 37.01(2)(D), is:
- a Class B misdemeanor if the offense is committed under Subsection (a)(2) or Subsection (a)(5) and the Affiant is convicted of presenting or using the record;
- a felony of the third degree if the offense is committed under:
- Subsection (a)(1), (3), (4), or (6); or
- Subsection (a)(2) or (5) and the Affiant is convicted of making the record; and
- a felony of the second degree, notwithstanding Subdivisions (1) and (2), if the actor’s intent in committing the offense was to defraud or harm another.
and it has the effect of dismissing a prosecution as the prosecutor is also commanded as follows:
Art. 2.04. Shall draw complaints
Upon complaint being made before a district or county attorney that an offense has been committed in his district or county, he shall reduce the complaint to writing and cause the same to be signed and sworn to by the complainant, and it shall be duly attested by said attorney.
Art. 2.05. When complaint is made
If the offense be a misdemeanor, the attorney shall forthwith prepare an information based upon such complaint and file the same in the court having jurisdiction; provided, that in counties having no county attorney, misdemeanor cases may be tried upon complaint alone, without an information, provided, however, in counties having one or more criminal district courts an information must be filed in each misdemeanor case. If the offense be a felony, he shall forthwith file the complaint with a magistrate of the county.
It doesn’t take a legal genius to figure this out. The Prosecutor has a clearly defined duty, by failing this duty, the prosecutor has the effect of dismissing a prosecution in impersonation of a judicial officer in violation of 37.11 Texas Penal Code:
37.11. Impersonating Public Servant
- A person commits an offense if he:
- impersonates a public servant with intent to induce another to submit to his pretended official authority or to rely on his pretended official acts; or
- knowingly purports to exercise any function of a public servant or of a public office, including that of a judge and court, and the position or office through which he purports to exercise a function of a public servant or public office has no lawful existence under the constitution or laws of this state or of the United States.
- An offense under this section is a felony of the third degree.
By the current practices and procedures, the aggrieved citizen is caught in what you might call it a Catch 22, where complaints against public officials must be filed with public officials and those public officials or the one orchestrating the improprieties. Relator calls it a deliberate and ongoing criminal conspiracy perpetrated for the specific purpose of shielding criminal wrongdoers from prosecution in violation of 38.05 Texas Penal Code:
38.05. Hindering Apprehension or Prosecution
- A person commits an offense if, with intent to hinder the arrest, prosecution, conviction, or punishment of another for an offense or, with intent to hinder the arrest, detention, adjudication, or disposition of a child for engaging in delinquent conduct that violates a penal law of the grade of felony, he:
- harbors or conceals the other;
- provides or aids in providing the other with any means of avoiding arrest or effecting escape; or
- warns the other of impending discovery or apprehension.
- It is a defense to prosecution under Subsection (a)(3) that the warning was given in connection with an effort to bring another into compliance with the law.
- An offense under this section is a Class A misdemeanor, except that the offense is a felony of the third degree if the person who is harbored, concealed, provided with a means of avoiding arrest or effecting escape, or warned of discovery or apprehension is under arrest for, charged with, or convicted of a felony, or is in custody or detention for, is alleged in a petition to have engaged in, or has been adjudicated as having engaged in delinquent conduct that violates a penal law of the grade of felony, and the person charged under this section knew that the person they harbored, concealed, provided with a means of avoiding arrest or effecting escape, or warned of discovery or apprehension is under arrest for, charged with, or convicted of a felony, or is in custody or detention for, is alleged in a petition to have engaged in, or has been adjudicated as having engaged in delinquent conduct that violates a penal law of the grade of felony.
I further contend, this conspiracy on the part of prosecutors is perpetrated in order to facilitate the commission of other crimes, those demonstrated above.
The current cause goes to the integrity of the corpus juris. By the instant motion, Relator restricted argument to the matters of jurisdiction, however, the actions of the officials involved implicate much more than jurisdiction. When all are considered concert, the value of in pari materia considerations of the corpus juris become apparent. It is specifically alleged, the above criminal acts to the detriment of the rights and liberties of Affiant are more than singular and isolated liberty infringements. They portend hubris, a conniving malignant calculus, carefully crafted toward the administrative convenience and adjudicative expediency of official conspirators.
Relator makes no assertion that Affiant has been singled out by the above public officials for special persecution. If that were all, things would be less serious. Relator alleges that the arresting officer, jailer, magistrate, and prosecuting attorney have engaged in an ongoing criminal conspiracy to deny all persons accused of crime within the jurisdiction in the due course of the laws. Relator further alleges said violations of law and Constitution were not merely minor adjustments toward administrative convenience and adjudicative expediency, but rather, are dastardly deeds, a consciously conceived, low down, dirty rotten, criminal connivance intended to disenfranchise citizens in order to serve professional considerations of prosecutors, Judges, defense counsel, et al.
Arresting officer in the immediate cause, had a duty as prescribed by
Article 2.03 (b):
Art. 2.03. NEGLECT OF DUTY.
It is the duty of the trial court, the attorney representing the accused, the attorney representing the state and all peace officers to so conduct themselves as to insure a fair trial for both the state and the Affiant, not impair the presumption of innocence, and at the same time afford the public the benefits of a free press.
Relator asserts, the arresting officer, by acting in accordance with standing policy, without regard to existing circumstances, denied Affiant the right to be taken before a magistrate without unnecessary delay. Said denial was committed in furtherance of the on-going criminal conspiracy alleged above and thereby had the effect of denying Affiant in the right to a fair examining trial before a neutral magistrate. Affiant , subsequent to the illegal acts of arresting officer, was Subjected to trespass on Affiant ’s liberty by extended detention in jail, humiliating booking procedures, and treatment by jailers clearly intended to coerce and intimidate Affiant . Said intimidation and denial of rights were perpetrated in order that Affiant would rendered be more compliant and likely to accept the plea bargain when offered by prosecutor.
By said act, arresting officer became a criminal trespasser on the laws, thereby disqualifying himself as a credible person under the law and subsequently disqualifying same from presenting a criminal allegation to the court against Affiant .
While any credible citizen is authorized to present a criminal complaint to some magistrate alleging a criminal act by another, nothing in law allows a third party to present the supporting affidavit of probable cause in place of the complainant. Unless the jailer, or whomever it was who initiated the criminal proceeding before the magistrate wherein a determination of probable cause was made binding Affiant to the court, had personal and not hearsay knowledge of the facts tendered, no authority existed for the presentation of the facts supporting the complaint to the court.
Said act by jailer had the effect of denying Affiant in a fair hearing before a neutral magistrate in violation of Article 2.03(b) supra. Specifically, by the above-alleged criminal act, jailer acted in concert and collusion with magistrate, in felony violation of state law, for the purpose of denying Affiant in the right to a fair examining trial.
Magistrate in the instant cause, by convening a hearing in secret, by accepting evidence in a court hearing ex parte, by accepting evidence into the court record without proper certification of said evidence, by setting bail informally, by failing to seal all documents had in the hearing and forwarding them to the court of original jurisdiction, and my improperly binding the accused to the court, committed numerous crimes against the peace and dignity of the State of Texas to the detriment of the rights of Affiant . By said acts, magistrate denied Affiant in a fair hearing before a neutral magistrate in violation of Article 2.03(b) above and therefore, is disqualified to act in any official capacity in the immediate cause.
“Officers of the court have no immunity, when violating a Constitutional right, from liability. For they are deemed to know the law.” Murdock v. Penn., 319 US 105
The prosecuting attorney in the immediate cause, having to duty as indicated above by Article 2.03(b) supra, acted in concert and collusion with arresting officer, jailer, and magistrate toward the furtherance of an on-going criminal conspiracy designed and intended to disenfranchise Affiant of the rights guaranteed by the Constitution and laws of the State of Texas. By the above, the prosecuting attorney is disqualified for the purpose of representing the state in the instant prosecution.
It is the contention and allegation of Relator that, Judge Edwards, Michael McDougal, Sheriff Cage, and all other public officials mentioned and alleged against in this document have acted and continue to act in concert and collusion with one another toward the outcome of denying persons accused of crime in Montgomery County in the due course of the law of the State toward an ongoing criminal conspiracy to improperly collect monies, in for form of fines and fees, from otherwise free citizens, in violation of the due course of the laws of the State of Texas.
By the above, jurisdiction is challenged. It has been clearly and plainly alleged that public officials have acted in violation of the limits of their authority and bounds of their duty. Relator puts to their proof those alleged above and demands they show as to why each in their turn should be free from criminal prosecution and impeachment in the current cause, and removal quo warranto from their current positions for violations of their fiduciary duties and the laws of the State of Texas.
Abraham Lincoln was touted to consider; it would be better that ten guilty be set free than one innocent person be wrongly condemned.
The Texas Constitution was prepared by our founders to protect free citizens, not from one another, but rather, from those very governmental instruments they have created to administer their laws. It is a paradox that we must be protected from our protectors but such is the nature of the human animal.
H.G. Wells, in his OUTLINE OF HISTORY, on speaking to the excesses of the Popes during the Dark Ages aptly observed:
“The giver of the law most owes the law allegiance. He of all beings should behave as if the law compels him. But it is the universal failing of mankind that what we are given to administer, we promptly presume we own.”
Absent a showing of just cause for every assertion and allegation made above, Relator moves the court to rule the due course of the law to have been abridged and jurisdiction thereby lost to the State.
Relator moves the court to order the Respondent to bring Affiant before the court and show, by the court record, cause as to why Affiant is being held and to establish jurisdiction not hampered by acts in violation of the due course of the laws which would have the effect of disqualifying the prosecution and the State from taking jurisdiction in the instant cause. .
Relator further moves the court to petition the local administrative judge to convene a court of inquiry under Article 52 Texas Code of Criminal Procedure to examine into the improprieties presented in this document.
__Relator’ Name & Address__ Notary Stamp Here
I, __Relator’s Name_________, do swear and affirm that all statements made herein are true and accurate, in all respects.
SWORN TO AND SUBSCRIBED BEFORE ME, __(notary’s name)___, on the ______ day of_________, 2007, which witnesses my hand and seal of office.
NOTARY PUBLIC IN AND FOR
THE STATE OF TEXAS