FILED IN
COURT OF CRIMINAL APPEALS
Docket No. WRIT 1001.
OCT 01 2015
Re: Cause No: E0004327
Abel Acosta, Clerk
§ IN THE ELLIS COUNTY
STATE OF TEXAS:
§
PLAINTIFF § COURT AT LAW No. 2
§
vs. § 109 SOUTH JACKSON St.
§
Frederick-William= Van Horn § WAXAHACHIE, TEXAS
§ RECEIVED IN
Relater § 75168 COURT OF CRIMINAL APPEALS
SEP 2 9 2015
Notice of Appeal: Pleading.
Abet Acosta, Clerk
I am Appealing the September gth order of Ellis county court at law No. 2.
The reason I have prepared this notice of appeal this way is because of all
the problems I am having with the Ellis county clerks. The latest being my
asking for the docketing statement & being refused. The challenge to the subject
matter jurisdiction being denied on the 9th is the grounds for this appeal.
Summary of the complaint provided because this is as I understand it an
accelerated appeal: Appeal-Regular.
I understand I am to follow the rules of a regular appeal just at the
accelerated table.
The state has no standing to prosecute me in the first place, no grounds, &
none of any other kind of right to prosecute me, this being essentially the third
time makes it just another form of malice. They have no right to prosecute me or
even try. I am not liable or subject to their interests. They have no right to the
precedence provided by probable cause when they know they have no cause to
prosecute me: in the first place e.g. probability or other wise via such grounds.
The only mater before the court at this time is the challenge to the subject matter
& the subsequent mandatory termination of the crim~nal prosecution against me.
The damages are not before the court until the accrual of the criminal action, & a
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Notice of Appeal. September 24th, 2015
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new action is filled see: Texas causes of action chapter 19-A. §4.2 Accrual. To me
that does not mean that the city cant make reparations' before this happens. It
just means the judges dismissal of the criminal action against me cannot include
intent to dismiss the damage claims I have asserted. The city is as fully noticed
as I can provide.
Subjects/elements: paramount to prosecution that they don't have: where is
the damage party? How was I not exercising my rights? & in exercising my
rights how do they have any complaints at all? Where is the explicit waver of my
rights? How have I given the state or those under color of its law just cause to
prosecute me? Where is the state' answer? How can they prove what really
matters?? e.g. My liability to such charges in the light of all the law I have plead
to the contrary of the charges? Are you going to continue this injustice against
me? Isn't the evidence supposed to at least have a possible point of being even
relevant to some liability at all? If not! what judgment do you have jurisdiction to
render ·in their favor? The only possible answer is none! I am not guilty of
anything except exercising my constitutionally secured & guaranteed rights.
I understand a Plea to the Jurisdiction is appropriate when the judgment
sought by the prosecution is not within the courts jurisdiction to grant, such as in
this case. I understand that a plea to the jurisdiction is to resolve the case
without regard to the merits of the case & thus is supposed to be granted without
prejudice. I know that all the facts, evidence e.g. the matter of law I have raised
is what gives this court it' just grounds to rule in my favor in dismissal of the
states cause of action for lack of jurisdiction & thus is- a final judgment, & .i.e.
should be with prejudice. The principle intent of the law prejudiced their case
before I was even cited & they have no excuse not to know this.
The fact of this matter is I challenge to the jurisdiction. It should have
been granted without any delay. I should have had justice at my very first
response.
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Notice of Appeal. September 24th, 2015
• Conclusion
•
Neither the state or Waxahachie has a case against me. I am entitled to the
relief sought, & to per sue my damages in a separate action..
Relief Sought
Please terminate the criminal action for lack of jurisdiction.
To further address my complaint:
So that you may have at your finger tips my ongoing complaint against the
county clerks. I · provide the clerks duties from many sources, to show the
damages they cause me were unnecessary & deliberate causing me to take this
approach instead. Damages I most certainly hold Waxahachie liable for. There is
more than just complaining about those clerks here in.
Issues: Appeal can be taken from refusal to dismiss for lack of jurisdiction
TEXAS RULES CIVIL TRIALS: COMMENTARIES: Ch. 3. Defendant's Response
& Pleadings F. Plea to the Jurisdiction---Challenging the Court
§1.2 Purpose. A plea to the jurisdiction is a procedural device used to
challenge the court's subject-matter jurisdiction over a claim. Texas Dept. of
Parks & Wildlife v.. Miranda, 133 S.W.3d 217, 232 (Tex.2004); BlandiSD v.. Blue,
34 S.W.3d 547, 554 (Tex.2000); see Heckman v. Williamson Cty., 369 S.W.3d 137,
147 (Tex.2012). Without subject-matter jurisdiction, a court does not have
authority to render judgment & must dismiss the claim without resolving the
parties' substantive argument. See City of Houston v.. Rhule, 417 S.W.3d 440,
442·43 (Tex.2013); DaimlerChrysler Corp. v. Inman, 252 S.W.3d 299,304
(Tex.2008); Bland ISD, 34 S.W.3d at 553·54. Thus the defendant can use a plea to
the jurisdiction to defeat a cause of action without regard to its merits. Mission
Consol. ISD v.. Garcia, 372 S.W.3d 629, 635 (Tex.2012); Bland ISD, 34 S.W.3d at
554.
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Notice of Appeal. September 24th, 2015
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§2. PLEA TO THE JURISDICTION
•
§2.1 Form. A plea to the jurisdiction may be included in the answer or
filed as a separate motion. TRCP 85. If filed as a motion, it should be captioned
as a motion to dismiss for lack of jurisdiction.
NOTE
Subject-matter jurisdiction can also he challenged in another procedural
·-
instrument? such as a traditional motion for summary judgment. State v.Lueck,
290 S. W. 3d 876, 884 (Tex.2009); Bland ISD v. Blue? 34 S. W.3d 547, 554
(Tex.2000); see also TDCJ v. Simons, 140 S. W.3d 338, 349 (Tex.2004)
{interlocutory appeal under CPRC §51.014(a) (B) can he taken from refusal to
dismiss for lack of jurisdiction whether jurisdictional argument is make in plea to
the jurisdiction or some other instrument).
§2.4 No deadline. There is no deadline for the plea to the jurisdiction.
Lack of subject~matter jurisdiction is fundamental error & can be raised at any
time. Sivley v. Sivley, 972 S.W.2d 850, 855 (Tex.App. ···Tyler 1998, no pet.).
§3.2 No Standing. A plea to the jurisdiction is proper to challenge a party's
lack of standing. See M.D. Anderson Cancer Ctr. V. Novak, 52 S.W.3d 704,710·11
(Tex.2001),
Issues: should file notice ofaJ!Peal instead ofasking for permission.
COMMENTARIES Ch. 3. Motions of Appeal P. Motion .for Interlocutory
Appeal & Stay Pending Appeal
§2. INTERLOCUTORY APPEALS
For an interlocutory order to be appealable, a statute or rule must
specifically authorize the appeal. See Ware v. Miller, 82 S.W.3d 795, 799
(Tex.App.···Amarillo 2002, pet. denied). When a statute or rule authorizes an
appeal, parties do not need to file a motion to appeal an interlocutory order.
Instead. they should file a notice of appeal & proceed with an accelerated appeal
under the TRAPs. See TRAP 28.1(a).
· Ch. 1. Preliminary Issues B. Considerations Before Appeal
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Notice of Appeal. September 24th, 2015
1!0
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•
§2.6 Accelerated appeals. Appeals of certain orders & judgments are accelerated.
See TRAP 28.l(a). An accelerated appeal has shortened schedules for filing the
notice of appeal, record, & brief. See "Deadlines in an accelerated appeal," §2.6.2,
this page. Along with cases given precedence by law & cases given precedence by
the courts in the interest of justice, accelerated appeals are given precedence over
other cases. TRAP 40.1. See "Appeals that Must Be Given Precedence," ch. 3-C,
§5,. For the procedure for a motion to accelerate the appeal, see "Motion to
Accelerate Appeal or to Give Appeal Precedence," ch. 3-C.
Address of the accelerated appeal requires criminal case: TRAP 40.2
Criminal Cases. In cases not otherwise given precedence by law. The court of
appeals must have & determine a criminal appeals if the earliest possible time,
having due regard for the parties rights & for the proper administration of justice.
Note: a matter at hand regarding right to appeal shall not be abridged,
TRAP 40.2. Accelerated Appeal in Criminal Cases, for good cause.
What makes it criminal anyway? How is it not civil when the only thing
criminal about the case is the aspect of. prosecuted in the nave of the state? See
Code of Criminal Prosecution Ch. 3 Art. 3.02 & Burks v. State; otherwise the only
real crime here is that I'm being prosecuted against all sound principle of law &
wisdom. How do you define it as criminal when you have n~ damaged party? The
State has no nexus between the charges & my liability, they are misapplying the
only possible application of Burks v. State.
TRAP 40.1. Point of interest, types of cases that have precedence over all others:
(a) A case given precedence by law; such as: Denial of a Plea to the
Jurisdiction, or challenge on the fact of, Lack of Subject Matter Jurisdiction; the
subject is the ruling. How is a judgment to have any authority when its purported
basis is actually thin air?
(b) An Accelerated Appeal: I'm giving the statutory provisions on how an
appeal on the grounds of a lack of vital jurisdiction is an Interlocutory Appeal. By
nature an appeal; that is to be accelerated, & that the proper course is to just
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Notice of Appeal. September 241h, 2015
• •
appeal. if as under a normal appeal. but just shorten deadlines, e.g. I filed this
here Notice of Appeal instead of motioning or seeking permission to appeal.
(c) A case that the court determines should be given precedence in the
interest of justice; such as in this case wherein termination of the proceedings
against me immediately is & has always been sought & is the only just thing to do
in such a lack of authority to proceed.
Commentaries Texas Civil Appeals. Ch. 1. B. §2.6. 2. Deadlines in an
accelerated appeal:
(1) Notice of Appeal: The notice of appeal generally must be filed within 20
days after the judgment or order being appealed was signed, & post judgment
motions do not extend the time for perfecting an appeal, TRAP 28.1(b): See
"Note", 5-A, §52.2 (1).
(2) Record must be filed within ten days. The TRAP's permit the court to
hear an accelerated appeal on the original papers sent by the trial court.
I am requesting the clerks record to include certain documents which
situation ally automatically provides for a nearly complete record & since she says
the cost is a dollar a page I am providing a 195.00 money order for the docketing
fee & a 500.00 up front by Priority U.S. mail to the county court at law No. 2 of
Ellis county, under an agreement to pay for other parts of the record as per the
rules, & I am hoping to avoid more delay caused by these clerks.
Commentaries Texas Civil Appeals. Ch. 3. p. §2. Interlocutory Appeals 3:
For an interlocutory order to be appertained:
§2. INTERLOCUTORY APPEALS
For an interlocutory order to be appealable, a statute or rule must
specifically authorize the appeal. See Ware v. Miller, 82 S.W.3d 795, 799
(Tex.App.···Amarillo 2002, pet. denied). When a statute or rule authorizes an
appeal, parties do not need to file a motion to appeal an interlocutory order.
Instead. they should file a notice of appeal & proceed with an accelerated appeal
under the TRAPs. See TRAP 28.1(a).
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Notice of Appeal. September 24th, 2015
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Argument for a why on writ why Jendrzey had plenary power to:
•
NOTE
Filing a post judgment motion does not extend the appellate timetable for
an appellate appeal, but a timely filed motion for new trial extends the tn"al
court's plenary power. See TRAP 329b(e). · See ~~comparing the appellate
timetable & plenary power,» §6.~ p. 215. Thus, if the trial court modifies the
judgment while it retains plenary power,