Van Horn, Frederick William

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 Page I of34 Notice of Appeal. September 24th, 2015 • 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. Page 2 of34 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. Page 3 of34 Notice of Appeal. September 24th, 2015 • §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 Page4 of34 Notice of Appeal. September 24th, 2015 1!0 - • §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 Page 5 of34 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). Page 6 of34 Notice of Appeal. September 24th, 2015 • 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,