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Robert E. Marzett,
Appellant,
STATE OF TEXAS
Appellee,
Appealed from COLLIN COUNTY COURT AT LAW #1
COLLIN COUNTY, TEXAS
No. 001-83797-2014
Appellant's Brief
Robert E. Marzett
9720 Coit Road #220-116
Piano, Texas 75025
214-868-8698
remarzett@gmail.com
Appellant's Brief
No. 05-15-00148-CR
No. 05-15-00148-CR
IN THE
COURT OF APPEALS
FIFTH DISTRICT OF TEXAS at DALLAS
Robert E. Marzett,
Appellant,
STATE OF TEXAS
Appellee,
Appealed from COLLIN COUNTY COURT AT LAW #1
COLLIN COUNTY, TEXAS
No. 001-83797-2014
Appellant's Brief
Robert E. Marzett
9720 Coit Road #220-116
Piano, Texas 75025
214-868-8698
remarzett@gmail.com
Appellant's Brief
No. 05-15-00148-CR
No. 05-15-00148-CR
Robert E. Marzett,
Appellant
STATE OF TEXAS,
Appellee
IDENTY OF PARTIES & COUNSEL
1. Defendant/Appellant
Robert E. Marzett
9720 Coit Road #220-116
Piano, Texas
214-868-8698
remarzett@gmail.com
Plaintiff/Appellee
STATE OF TEXAS
COLLIN COUNTY DISTRICT ATTORNEY
2100BloomdaleRd.
McKinney, Texas 75071
Appellant's Brief jj
No. 05-15-00148-CR
TABLE OF CONTENTS
IDENTITY OF PARTIES & COUNSEL ii
TABLE OF CONTENTS in
INDEX OF AUTHORITIES iv
STATEMENT ON ORAL ARGUMENT x
STATEMENT OF THE CASE x
ISSUES PRESENTED xi
STATEMENT OF FACTS !
SUMMARY OF THE ARGUMENT 5
STANDARD OF REVIEW 8
ARGUMENT AND AUTHORITIES 9
CONCLUSION 67
PRAYER 67
CERTIFICATE OF COMPLIANCE 68
CERTIFICATE OF SERVICE 68
Appellant's Brief jjj
No. 05-15-00148-CR
INDEX OF AUTHORITIES
CONSTITUTIONS
United States of America
U.S. Constitution, Art. 1 51
U.S. Constitution, Art. II 51
U.S. Constitution, Art. Ill 51
U.S. Constitution, Art. I. §8, cl. 17 38,44
U.S. Constitution, Art. I, §10, cl. 1 39
U.S. Constitution, Art. IV, §3, cl. 2 38,44
US. Constitution, Amend. IV 5,6,10,25,26,28,35
US. Constitution, Amend. VI 52,55,57,58
Constitution of Texas
Texas Constitution, Art. I, §9 5,26,33,35
Texas Constitution, Art. I, §10 39,52
Tex. Constitution, Art. II, §1 50
Texas Constitution, Art. Ill § 35 43,59,64
Texas Constitution, Art. V. §12(b) 47,56
CASES
Federal
Atwaterv. City ofLago Vista, 532 U.S. 318 (2001) 12,23
Bryan v. United States, 524 U.S. 184(1998) 16
Davis v United States, 131 S. Ct. 2419 (2011) 19
Appellant's Brief jv
No. 05-15-00148-CR
Delaware v.Prouse, 440 U.S. 64% (1979) 10,12,22
Florence v. Bd. ofChosen Freeholders, 132 S. Ct. 1510 (2012) 23
Giaccio v. Pennsylvania, 382 U.S. 399 (1966) 17
Heienv. NORTH CAROLINA, 135 S.Ct. 530 (2014) 11,28,29
Hepburn &Dundas v. Ellzy, 6U.S. 445, 452(1805) 36,37
International Shoe Co. v. Washington, 326 U.S. 310 (1985) 49
Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009)
12
Marylandv.King, 133 S.Ct. 1958(2013) 23
Navarettev. California, 134 S. Ct. 1683 (2014) 22
NewYorkv. United States Et. AL., 505 U.S. 144(1992) 39
Northrup v. CITY OF TOLEDO POLICE DEPARTMENT,
UNITED STATES COURT OF APPEALS,
No. 14-4050 (May 13, 2015) 33,34
Ogdenv.Slade, 1Tex. 13 (184 39
Ornelasv. United States, 517 U.S. 690 (1996) 11
Papachristou v. City ofJacksonville, 405 U.S. 156 (1972) 58
Pennoyer v. Neff 95 U.S. 714, 722-724 (1877) 49
Pennsylvania v. Mimms, 434 U.S. 106(1977) 23
Prince v. United States, 521 U.S. 898, 918-922 (1997) 51
Reynolds v. United States, 98 U.S. 145 (1878) 19
Terryv. Ohio,392U.S. 1(1968) 12,13,23
[7^^^^^.5^,404^8.336(1971) 17
United States v. Bevans,\6\J.S.(3 Wheat.) 338, (1818) 38
United States v. Chanthasouxat, 342 F.3d 1271 (1 lth Cir. 2003) 16,19
United States v. Davis, 598 F.3d 1259
Appellant's Brief
No. 05-15-00148-CR
(1 lth Cir. 2010), affd, 131 S.Ct. 2419 (2011) 19
UnitedStates v. Johnson, 457 U.S. 537(1982) 19
United States v.Lanier, 520 U.S. 259 (1997) 17,60
United States v. Lopez- Soto, 205 F.3d 1101 (9th Cir. 2000) 19,20
United States v. McDonald, 453 F.3d 958 (7th Cir. 2006) 19
United States v. Miller, 146 F.3d 274 (5th Cir. 1998) 15
United States v. Nicholson, 721 F.3d 1236 (10th Cir. 2013) 10,11
United States V.R.L.C., 503 U.S. 291 (1992) 16
United States v.Robinson, 414 U.S. 218 (1973) 23
United States v. Tibbetts, 396 F.3d 113 (10th Cir. 2005) 16
United States v. Wiltberger, 18 U.S. (5 Wheat.) 76 (1820) 17
Winter v. People ofState ofNew York, 333 U.S. 507,
517-520(1948) 59
Whrenv. United States, 517 U.S. 806 (1996) 11,15,22
Younger v. Harris, 401 U.S. 37, 44-45 (1971) 51
Texas
Amplifone Corp. v. Cameron County
(Civ. App. 1979) 577 S.W.2d. 567, 570 38
Barber v. State, 191 S.W.2d. 879 (1945) 48
Castas v. State, Tex.Cr.App., 503 S.W.2d. 262, 239 (1973) 47,56
Drummv. State, 560 S.W.2d 944 (1977) 54
Exparte Cannon, 546 S.W.2d. 266, 269-270 (1976) 46,47,56
ExparteDuncan,42Tex.Cr.R.66\,62SW.75%(\90\) 56
Ex parte Ports, 21 S.W.3d 444, 446 (Tex. App.-San
Antonio 2000, pet. refd) 43
E-Z Mart Stores, Inc. v. Terry, 794 S.W.2d. 63
Appellant's Brief vj
No. 05-15-00148-CR
(Tex.App. - Texarkana 1990, writ denied) 51,57,61,65
Fairow v. State, 943 S.W.2d 895, 900 (1997) 61,65
Galveston, H & H.R. Co. v. Anderson
(Civ. App. 1921) 229 S.W. 998 37,38
Georgev. State, 145 S.W.2d 187,188 (1940) 55
Graynedv. City ofRockford, 408 U.S. 104, 108(1972) 43,58
Harvey v. Culpeper, 801 S.W.2d 596, 600-01
(Tex.App.-Corpus Christi 1990, no writ) 61
Heine v. Texas Dep't ofPub. Safety, 92 S.W.3d. 642
(Tex. App. - Austin 2002, pet denied) 8
InreJ.L., 163 S.W.3d79, 85 (Tex. 2005) 63,64
Kingv. State, 29 S.W.3d. 556 (Tex. Crim. App. 2000) 9
Louder v. De Leon, 754 S.W.2d 148, 149 61,65
Lum v. State, 903 S.W.2d. 365
(Tex. App.-Texarkana 1995, pet. Refd) 61,65
Luquis v. State, 72 S.W.3d 355, 365 n.26
(Tex. Crim. App. 2002) 43
Mercedes Bern Credit Corp. v. Rhyne,
925 S.W.2d. 664, 666 (Tex. 1996) 8
Office ofPub. Util. Counsel v. Pub. Util. Comm 'n,
878 S.W.2d. 598, 600 (Tex. 1994) 64
Ogdenv. Slade, 1Tex. 13, 14 (1846) 39
Pledger v. Schoellkopf 762 S.W.2d. 145(1988) 42
Quickv. City ofAustin,! S.W3d. 109 (Tex. 1998) 9
Sixth RMA Partners, L.P. v. Sibley,
lllS.W.3d.47,56(Tex.2003) 42
Appellant's Brief vjj
No. 05-15-00148-CR
State v.Evans, 843 S.W.2d 576 (Tex.Cr.App. 1992) 60
State v. Holcombe, 187 S.W.3d 496, 499 (Tex. Crim. App.
2006), cert, denied, 127 S.Ct. 176(2006) 58
State v. Steelman, 93 S.W.3d. 102 (Tex.Crim.App. 2002) 35
Texas Dep't ofPub. Safety v. Nail, 305 S.W.3d.
673 (Tex. App.-Austin 2010, no pet.) 9
Thomas v. State, 919 S.W.2d. 427 (1996) 56,60
Travis v. State, 959 S.W.2d 32 (Ark. 1998)
722 S.W.2d 694 (Tex. 1986) 25
Waggoner v. Morrow, 932 S.W.2d. 627, 631
(Tex.App - Houston [14th Dist] 1996, no writ) 9
Walkerv. Packer, 827 S.W.2d. 833, (Tex. 1992) 8
Weatherly v.Martin, 754 S.W.2d. 790 (1988) 42
STATUTES
Federal
12U.S.C. §411 39
Texas
Gov.Code, Chap. 30 50
Gov. Code §311.005(7) 36
Gov.C. §312.002 37
TC §502.040 27,28,32,33,53
TC §502.473 53
TC §504.010 32'56
TC §504.943 27,32,53
TC §§521.001(8) 36'40
Appellant's Brief vjjj
No. 05-15-00148-CR
TC §541.002(2) 40
TC §541.002(3) 40
TC §541.002(5) 36
TC §601.002(11) 36
North Carolina Statutes
North Carolina General Statutes §20-4.01(45) 30
RULES
C.Crim.Proc. Art. 14 5,26,33,35,47
C.Crim.Proc. Art. 21.20 62,63
C.Crim.Proc. Art. 21.21 52,62,63
C.Crim.Proc. Art. 21.22 62,63
C.Crim.Proc Art. 27.08 56
C.Crim.Proc. Art. 45.002 62
C.Crim.Proc. Art. 45.019(e)(2) 50
C.CrimProc, Art. 45.201 49
Tex.R.Civ.Proc, Rule 53 51
Tex.R.Civ.Proc, Rule 93 42
Texas Rule ofEvidence 201(b) 63
Texas Rule ofEvidence 701 61
Texas Rule ofEvidence 702 61
Texas Rule ofEvidence 704 61
Texas Rule ofEvidence 705 61
Appellant's Brief jx
No. 05-15-00148-CR
OTHER AUTHORITIES
Carrattv.Morley, (1841) 113 Eng. Rep. 1036 14
Darryl K. Brown, Democracy andDecriminalization,
86 Tex. L. Rev. 223, 232 n.31(2007) 21
Malcomsonv. Scott, 23 N.W. 166 (Mich. 1885) 14
Rachel E. Barkow, Administering Crime,
52 UCLA L. Rev. 715(2005) 21
Restatement of Torts § 121 13
Restatement (Second) of Torts § 121 13
Wayne A. Logan, Police Mistakes ofLaw,
61 Emory LJ. 69, 86 (2011) 18
W. Blake Odgers & Walter Blake Odgers, The
Common Law ofEngland 481 (2d ed. 1920) 14,15
STATEMENT ON ORAL ARGUMENT
The points oferror in this appeal are adequately presented in the
appellate record. Marzett believes that oral argument would not significantly
aid the Court in determining the legal issues presented on appeal and the
Court should exercise its discretion to decide this case without such
argument. TEX. R. APP. P. 39.8.
STATEMENT OF THE CASE
This case originated in the CITY OF FRISCO MUNICIPAL COURT
Appellant's Brief x
No. 05-15-00148-CR
where a CLERK of the MUICIPAL COURT filed a charging instrument
labeled "complaint" alleging that Appellant failed to register his private
property as a motor vehicle and display license plates under
TRANSPORTATION CODE §502.493, (hereinafter "TC) (CR_11).
Appellant was convicted in a bench trial in the MUNICIPAL COURT
(CR19). Appellant was required to post a bond for twice the amount ofthe
fine and court cost (CR230), in order to perfect his appeal to the COUNTY
COURT AT LAW #1 (CR_13-14). Appellant was again convicted in a trial
de novo to the bench in the COUNTY COURT AT LAW #1 (CR_340).
Appellant appealed his conviction inthe COUNTY COURT AT LAW #1 to
the Fifth District Court of Appeals (CR_388-389).
ISSUES PRESENTED
Issue I. Belcher Did Not Have "Reasonable Suspicion"
To Conduct A Warrantless Seizure of Appellant 9
Issue II. The trial JUDGE erred as matter of law, when
she refused to disqualify herself 35
Issue III. The COURT erred as a matter of law in applying
the TC as the choice of law 41
Issue IV. The TC "as applied" to appellant's private property
and activities, violated the Texas Constitution,
Art. III., §35 42
Issue V. Appellant committed no act within the territorial
jurisdiction ofthe TC 44
Issue VI. The COUNTY COURT lacked subject matter
jurisdiction ofthis case 45
Issue VII. The COURT lacked personal jurisdiction
Appellant's Brief xj
No. 05-15-00148-CR
of Appellant 48
Issue VIII. The CLERK had no standing to act as affiant
on a charging instrument 49
Issue IX. The charging instrument was insufficient to
give appellant constitutional notice of the cause
and nature of the accusation against him 52
Issue X. The COURT erred as a matter of law in finding
the charging instrument substantively sufficient
to allege an offense 54
Issue XL The TC "as applied" to appellant violated U.S.
Constitution. Sixth Amendment 57
Issue XII. The Subject Matter of the TC is unconstitutionally
vague 58
Issue XIII. Belcher's testimony should have been limited 60
Issue XIV. The CLERK's affidavit is defective as a
charging instrument 62
Issue XV. Belcher's unsworn report cannot support an
Information 63
Issue XVI. Appellant's request for judicial notice of
adjudicative facts should have been granted 63
Issue XVII. The COURT erred as a matter of law and
abused its discretion when it refused to strike the
testimony of BELCHER 64
Issue XVIII. The COURT erred as a matter oflaw when it found
the evidence sufficient to support conviction 65
Appellant's Brief xjj
No. 05-15-00148-CR
APPELLANT'S BRIEF
TO THE HONORABLE 5th DISTRICT COURT OF APPEALS:
Inthis appeal, Appellant Robert E. Marzett (hereinafter "Appellant"),
request that this Court reverse the judgment ofthe COLLIN COUNTY
COURT AT LAW #1 (hereinafter"COUNTY COURT").
STATEMENT OF FACTS
The Fourth Amendment permits police officers to stop a motor
vehicle and its occupants for law enforcement purposes only when there is at
least reasonable suspicion that a law has been violated. This case presents
the question whether an officer's misinterpretation ofthe TC can form the
basis for reasonable suspicion.
On June 24, 2013, Appellant was seized, without a warrant by a
CITY OF FRISCO POLICE OFFICER, Lindsey Belcher (hereinafter
"Belcher") while traveling in the city of FRISCO, county of Collin, state of
Appellant's Brief Page 1of 68
No. 05-15-00148-CR
Texas (CR_260). Belcher was acting as apolice officer1 ofalocal authority2
under the TC when she seized Appellant because his private property
displayed no license plates onthe rear (RR_Vol_4, 24:4-27:14). Appellant
informed Belcherthat he was not engaged in "transportation" and his private
property was not being used as a "device" to "transport or draw" persons or
property on a "public highway" (CR260). Belcher formally arrested
Appellant, impounded Appellant's private property and he was confined in
the CITY OF FRISCO JAIL (CR_260). Appellant was required to post a
bond payable only in Federal Reserve notes in order to secure his release
(CR_230) and the release ofhis property. Acharging instrument labeled
"COMPLAINT" was filed on June 28, 2013, alleging failure to display
registration insignia and license plates (CR_11). Appellant was convicted in
the MUNICIPAL COURT and appealed (CRJ3-14). A bond payable in
Federal Reserve notes for twice the amount of the fine was required in order
to perfect his appeal to the COUNTY COURT (CR_230).
1TC §541.002(4) ""Police officer" means an officer authorized to direct traffic or arrest
persons who violate traffic regulations."
2TC §541.002(3)(A) "Local authority" means acounty, municipality, ot other local
entity authorized to enact traffic laws under the laws of this state;..."
TC §541.002(5) "State" has the meaning assigned by Section 311.005, Government
Code, and includes a province of Canada.
Gov. Code §311.005(7) ""State," when referring to apart ofthe United States, includes
any state, district, commonwealth, territory, and insular possession ofthe United States
and any area subject to the legislative authority ofthe United States ofAmerica."
Appellant's Brief Page 2of 68
No. 05-15-00148-CR
On August 29, 2014, appellant filed a motion to disqualify the
COUNTY COURT JUDGE Conine Mason, (hereinafter "Mason")
(CR_231-245). On September 3, 2014, the COUNTY COURT denied the
motion and referred it to the FIRST ADMINISTRATIVE JUDICIAL
DISTRICT (CR_249). On September 3, 2014, JUDGE Mary Murphy denied
appellant's motion (CR_250). On September 11, 2014, the COUNTY
COURT mailed appellant notice ofthe denial and set a pretrial hearing for
October 1, 2014 (CR_250,255). On September 19, 2014, Appellant
requested findings and conclusions regarding the denial ofthe motion to
disqualify the trialjudge (CR_256-258).
On September 29, 2014, appellant filed several pre-trial motions
including aMotion to quash complaint (CR_259-292); motion to exclude
expert and lay testimony (CR_303-307); request for judicial notice of
adjudicative facts (CR_308-313); request for judicial notice of Texas law
(CR_293-302); and amotion to set ahearing (CR_314-315). On November
3, 2014, appellant filed exhibits in support of appellant's request for judicial
notice of adjudicative facts (CR_320-337). On October 1, 2014, the COURT
issued an order setting ahearing for November 13, 2014 (CR_318).
On November 13,2014, a hearing was held to consider appellant's
motions (RR_Vol_3). Appellant argued the merits ofhis motion to exclude
Appellant's Brief Page 3of 68
No. 05-15-00148-CR
expert and lay testimony (RR_Vol._3, 61:4-76:10), request for judicial
notice of law (RR_Vol._3, 7:7-12:11), request for judicial notice of
adjudicative facts (RR_Vol._3, 12:12-14:17), and special appearance and
motionto quash complaint (RR_Vol._3, 14:18-61:2). After hearing
arguments, the COURT issued orders denying two of appellant's motions
(CR_338-339). The COURT refused to consider appellant's motion to
exclude expert and lay testimony, because the motion should have been
labeled a motion in limine. Because it was mislabeled, Mason would not
consider it. The COURT denied Appellant's motion to quash (CR_339) and
his request for judicial notice ofadjudicative facts (CR_338). On November
20, 2014, appellant was convicted in a trial to the court and ordered to pay a
fine of $ 99.00 plus court cost of $249 inFederal Reserve notes (CR_340).
On November 24, 2014, appellant filed a request for findings and
conclusions regarding denial ofappellant's motions (CR_344-345), and the
COURT'S judgment ofguilt (CR_346-348). On December 18, 2014,
appellant filed arequest for past due findings and conclusions regarding his
motions (CR_349-351), the judgment (CRJ46-348), and a motion for new
trial (CRJ52-376). On January 7, 2015, the COUNTY COURT issued
findings and conclusions regarding guilt (CRJ77-378) and adocket entry
denying appellant's motion for a new trial.
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Appellant s Brief &
No. 05-15-00148-CR
On January 13, 2014, appellant filed a request for special amended
findings and conclusions on the issue of guilt (CR379-382). On January 14,
2015, the COURT certified appellant's right of appeal (CR_391). On
February 3, appellant filed notice of appeal (CR388-389), request for the
CLERK'S RECORD (CR_384-385) and request for the REPORTER'S
RECORD (CR_386-387).
SUMMARY OF THE ARGUMENT
The traffic stop of Appellant's car, based solely onthe police officer's
misinterpretation oflocal traffic law, violated the U.S. Constitution, Fourth
Amendment, Texas Constitution, Art. I, §9 and the CODE ORCRIMINAL
PROCEDURE (hereinafter "C.Crim.Proc") Chapter 14.
This Court has long held that a traffic stop is valid under the Texas
Constitution, Art. I, §9, C.Crim.Proc. Art. 14.01, and the Fourth Amendment
only ifofficers have objectively reasonable suspicion to believe that alaw is
being violated. That objective inquiry can be properly performed only by
measuring the facts against the correct interpretation ofthe law. Otherwise,
the reasonable suspicion doctrine would be at odds with various common-
law principles, including the ancient maxim that ignorance ofthe criminal
law is no excuse. Allowing traffic stops based on "reasonable" mistakes of
Appellant's Brief Page 5of 68
No. 05-15-00148-CR
law also would be in tension with multiple canons of statutory construction
aimed at preventing the government from benefitting from ambiguity in
criminal statutes. Finally, such a rule would subvert warrantless seizure
provision's core purpose of constraining officer discretion, for it would
confer upon the police the authority to seize citizens whenthe facts known
to the officers, measured against an accurate view of the law, reveal only
wholly innocent conduct.
To be sure, warrantless seizure provisions tolerate traffic stops based
on reasonable mistakes of fact. But the reasons for doing so do not carry
over to mistakes officers make about applicable law. The Fourth
Amendment affords officers leeway to make good-faith mistakes of fact
because officers need flexibility to make quick, ad hoc factual assessments
in the field. And Courts evaluating the legality of traffic stops have already
shown that they can easily distinguish mistakes oflaw from those offact.
Law enforcement incentives would be skewed if stops based on
officer mistakes of traffic law were upheld as proper. Most notably, police
departments would be discouraged from using resources at their disposal to
ensure that officers on patrol have an accurate understanding ofthe law.
Police departments would also be discouraged from asking lawmakers to
clarify ambiguous laws, for such clarifications would shrink officer
Appellant's Brief Page 6of 68
No. 05-15-00148-CR
discretion. Indeed, if motorists were subject to seizures based on mistaken
interpretations of laws, it also would be much more difficult - indeed,
sometimes downright impossible - for people to avoid being exposed to
traffic stops. And to the extent the COUNTY COURT'S holding would
allow stops based on reasonable mistakes as to the existence of law, the
universe of circumstances allowing officers to impose upon citizens the
burdens of traffic stops would be broader still.
The safety objectives of traffic laws do not make police
misinterpretations ofsuch laws more tolerable. In Texas, as elsewhere, it is
the legislature's job to decide what traffic activities should be prohibited
because they are unsafe. It is the responsibility oflaw enforcement to learn
and enforce those laws. Warrantless seizure laws do not allow the police to
reinterpret and broaden those laws according to officers' own perceptions of
what is necessary to protect public safety. Misinterpretations oflaw by law
enforcement officers is compounded when courts charged with presiding
over such cases adopt the officer's interpretation without question. Failure of
courts to correctly interpret and apply TC law leads to injustice and multiple
other violations ofcitizen's rights as is demonstrated by this case. Practically
every issue complained ofin this appeal is founded on an incorrect
interpretation ofthe law by Belcher and the COUNTY COURT. When
Appellant's Brief Page 7of 68
No. 05-15-00148-CR
questioned, public officials refuse to identify the source of their power when
enforcing TC law and refuse to express their interpretation of key provisions
of this code such as precisely what activity is being regulated by this code or
what physical territory is included within the territorial jurisdiction of this
code. With a correct interpretation of the TC as a foundation, this case raises
multiple constitutional challenges regarding the exercise ofjurisdiction
within the territory of a Union state and the limitations state and federal
constitutions place on that power.
STANDARD OF REVIEW
The standard of review for finding appellant guilty is an abuse of
discretion standard. Heine v. Texas Dep't ofPub. Safety, 92 S.W.3d. 642,
646 (Tex. App. - Austin 2002, pet denied). A trial court abuses its discretion
if its decision is arbitrary, unreasonable, and without reference to any
guiding principals. Mercedes Benz Credit Corp. v. Rhyne, 925 S.W.2d. 664,
666 (Tex. 1996). A trial court has no discretion in determining what the law
is or applying the law to the facts. Thus, a clear failure by the trial court to
analyze orapply the law will constitute an abuse ofdiscretion. Walker v.
Packer, 827 S.W.2d. 833, 840 (Tex. 1992). In short, the trial court has no
discretion to misapply the law. Therefore, when a court incorrectly construes
Appellant's Brief Page 8of 68
No. 05-15-00148-CR
or refuses to follow the law, or fails to correctly apply the law to the facts,
the abuse of discretion standard essentially amounts to a de novo review.
When the ruling turns on a question of law, such as the interpretation of a
statue, the ruling is reviewed de novo. Texas Dep't ofPub. Safety v. Nail,
305 S.W.3d. 673, 678 (Tex. App. - Austin 2010, no pet). Under this
standard, the court conducts an independent analysis of the record and gives
no deference to the trial court's conclusions.
The standard of review in determining factual sufficiency of the
evidence is whether a neutral review of all the evidence, both for and against
the finding, demonstrates that the proof ofguilt is so obviously weak, or so
contrary to the overwhelming preponderance ofthe evidence. King v. State,
29 S.W.3d. 556, 563 (Tex. Crim. App. 2000). In performing a de novo
review, we exercise our own judgment and re-determine each legal issue.
Quick v. City ofAustin, 1S.W.3d. 109, 116 (Tex. 1998). Conclusions of law
will be upheld on appeal ifthe judgment can be sustained on any legal
theory the evidence supports. Waggoner v. Morrow, 932 S.W.2d. 627, 631
(Tex.App - Houston [14th Dist] 1996, no writ).
ARGUMENT AND AUTHORITIES
Issue I. Belcher Did Not Have "Reasonable Suspicion" To Conduct A
ii *> n • f Page 9 of 68
Appellant s Brief &
No. 05-15-00148-CR
^i^m^l^^l^irm-i^^es'^K^'^f^
Warrantless Seizure of Appellant
As the Tenth Circuit has explained, the relevant question in a
case such as this is: "Against what interpretation of the law should [a court]
assess the facts when deciding whether there was reasonable suspicion ... to
make a traffic stop?" United States v. Nicholson, 721 F.3d 1236, 1244 (10th
Cir. 2013). Should a court assess the facts against the "correct interpretation
of the law" or against whatever misinterpretation of the law an officer might
reasonably have? For the reasons that follow, the reasonable suspicion
inquiry requires courts to measure the facts against the correct interpretation
of the law.
Fourth Amendment Precedent, Tradition, And Purpose Require The
Facts Known To The Officer To Be Measured Against The Correct
Interpretation of The Law.
The Fourth Amendment provides that "[t]he right of the people to
be secure intheir persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated." U.S. Const. Amend. IV.
"[Shopping an automobile and detaining its occupants constitute a 'seizure'"
within the meaning ofthe Fourth Amendment. Delaware v. Prouse, 440
U.S. 648, 653 (1979). Accordingly, stopping an automobile and detaining
the driver "are unreasonable under the Fourth Amendment" unless the police
Appellant's Brief Page 10 of 68
No. 05-15-00148-CR
^•$*'***?*!#'?jS*M*^«^Ki*= •- *'•*• 'i !•«• •**'«-•**&<*•#< j0i?i»iK^i^«(W^*^^»*^awr-v*
have "at least articulable and reasonable suspicion." Ttf. at 663; see also
Ornelas v. United States, 517 U.S. 690, 693 (1996) ("An investigatory stop
is permissible under the Fourth Amendment if supported by reasonable
suspicion.").
The U.S. Supreme Court's precedent dictates that reasonable
suspicion is an objective test. The test requires an officerto have '"a
particularized and objective basis' for suspecting the person stopped of
criminal activity." Ornelas, 517 U.S. at 696 (quoting United States v. Cortez,
449 U.S. 411, 417-18 (1981)). In Whren v. United States, 517 U.S. 806
(1996), the Supreme Court unanimously reaffirmed the need for objectivity
in assessing the reasonableness of a traffic stop, holding that an officer's
subjective reason for conducting a traffic stop is irrelevant to its legality. Id.
at 813. This holding was repeated by Justice Kagan in the Supreme Court
case of Heien v. North Carolina, 135 S.Ct. 530, 541 (2014).
The only sensible way to determine reasonableness is to measure
individualized suspicion "against the correct interpretation ofthe law, as
opposed to any other interpretation, even ifarguably a reasonable one,"
United States v. Nicholson, 721 F.3d 1236, 1244 (10th Cir.2013). The
"essential purpose" ofthe reasonable suspicion standard, after all, is to
constrain "the exercise of discretion by government officials, including law
Appellant's Brief Page 11 of 68
No. 05-15-00148-CR
enforcement agents, in order to safeguard the privacy and security of
individuals against arbitrary invasions." Prouse, 440 U.S. at 653-54
(citations and internal quotation marks omitted). It is arbitrary for officers to
effectuate traffic stops when neither the facts known to them, nor any
reasonable inferences, indicate anything other than wholly innocent conduct.
Even when officers misinterpret the law entirely in good faith, a seizure on
that basis is still indiscriminate insofar as it lacks any objective legal
justification.
Tradition likewise supports evaluating reasonable suspicion with
reference to the correct interpretation of traffic law. The Supreme Court has
repeatedly recognized that post-Founding common law cases can reveal
constitutional principles, for the common law generally developed in
harmony with such principles. See, e.g., Melendez-Diaz v. Massachusetts,
557 U.S. 305, 321-24 (2009) (inferring constitutional meaning from late
nineteenth-century and early twentieth-century state-law cases); Atwater v.
City ofLago Vista, 532 U.S. 318, 342-43 (2001) (same).
Under the common law, "[n]o right is held more sacred, or is more
carefully guarded ... than the right ofevery individual to the possession and
control ofhis own person, free from all restraint or interference ofothers,
unless by clear and unquestionable authority oflaw." Terry v. Ohio, 392
Appellant's Brief Page 12 of 68
No. 05-15-00148-CR
U.S. 1, 9 (1968) (emphasis added) (quoting Union Pac. Ry. Co. v. Botsford,
141 U.S. 250, 251 (1891)) (internal quotation marks omitted). Thus,
although the common law has long protected an officer from tort liability "in
every case where he act[ed] under a reasonable mistake as to the existence of
facts," Restatement of Torts § 121 cmt. i (1934) (emphasis added), the
common law has always presumed that officers know the law, and has held
them liable in trespass whenever they make warrantless arrests based on
incorrect interpretations of statutes.
As the first Restatement of Torts memorialized the rule: "[A]n
officer is not privileged to arrest another whom he reasonably suspects of
having committed an act which the officer, through a mistake of law
reasonable in one ofhis position, believes to be a common law felony."
Restatement of Torts § 121 cmt. i (1934) (emphasis added); see also
Restatement (Second) of Torts § 121 cmt. i (1965) (reaffirming this rule).
Indeed, the Restatement addressed the precise form of mistake at issue here,
expressly foreclosing any exception for mistakes of law based onan
ambiguous "statute .. . [that] is not judicially construed [contrary to the
officer's view] until after the arrest is made." Restatement ofTorts § 121
cmt. i; see also id. ("No protection is given to a peace officer who, however
reasonably, acts under a mistake of law" ofthis type).
Appellant's Brief Page 13 of 68
No. 05-15-00148-CR
The Michigan Supreme Court's decision in Malcomson v. Scott, 23
N.W. 166 (Mich. 1885), illustrates this rule. There, an officer arrested the
plaintiff on facts that did not constitute the charged crimes of larceny or
embezzlement. The court held the arrest invalid, explaining that "[a]n officer
ofjustice is bound to know what the law is, and if the facts on which he
proceeds, if true, would not justify action under the law, he is a wrong-doer."
Id. at 168. As that court continued: "[Violations of law by those who are
appointed to protect instead of destroy private security, deserve no favor."
Id.
English common law developed based on the same presumption. In
Carratt v. Morley, (1841) 113 Eng. Rep. 1036, for instance, an arresting
officer was held liable for false imprisonment based on his mistake of law
when there was no jurisdiction to make the arrest. A treatise summarized the
rule this way: If "the Court has no jurisdiction over the cause before it, the
whole proceeding is bad, and any one who enforces the process ofthe Court
therein will be liable to an action for false imprisonment; for he ispresumed
to know the law and therefore to be cognisant of the want of jurisdiction." 1
W. Blake Odgers &Walter Blake Odgers, The Common Law ofEngland
481 (2d ed. 1920) (emphasis added) (footnote omitted). Though there was
possibly an exception to this rule for officers acting under the direction of a
Appellant's Brief Page 14 of 68
No. 05-15-00148-CR
magisterial warrant, officers were entitled to no protection from liability
when acting on their own. Id. at 481-82. Measuring facts against the correct
interpretation of the law maintains the proper relationship between citizens
and their government, as reflected in several doctrinal precepts.
First and foremost, Whren's anti-subjectivity rule gives officers
"broad leeway" to conduct traffic stops regardless of whether their
subjective intent corresponds to the legal justifications for their actions.
UnitedStates v. Miller, 146 F.3d 274, 279 (5th Cir. 1998). "But the flip side
of that leeway is that the legal justification must be objectively grounded" in
a correct interpretation of the law. Id. In other words, if officers can detain a
motorist for any traffic violation, no matter how small and regardless of their
subjective motives, they should not be able to detain a motorist when the
observed facts, measured against the correct interpretation of the law, reveal
only wholly innocent conduct.
Evaluating the legality of police officers' actions against the correct
interpretation ofthe law also is consistent with the standard to which
ordinary citizens are held. "[T]he background presumption" - fundamental
to the administration of criminal law- is that "every citizen knows the law."
Appellant's Brief Page 15 of 68
No. 05-15-00148-CR
Bryan v. UnitedStates, 524 U.S. 184, 193 (1998). Accordingly, "the
traditional rule" is that "ignorance of the law is no excuse." Id. at 196.
It takes little reflection to see the "fundamental unfairness" of holding
citizens to that maxim "while allowing those entrusted to enforce the law to
be ignorant of it." UnitedStates v. Chanthasouxat, 342 F.3d 1271, 1280
(11th Cir. 2003) (internal quotation marks omitted). Indeed, when a police
officer drives as a citizen, he can be held accountable for any violations of
the traffic code, no matter how reasonable any mistake he might make may
turn out to be. It would be counterintuitive, to say the least, to presume that
an officer knows the law in his capacity as a citizen, but to abandon that
presumption when he acts to enforce the law. Put in more absolute terms,
"failure to understand the law by the very person charged with enforcing it is
not objectively reasonable." United States v. Tibbetts, 396 F.3d 1132, 1138
(10th Cir. 2005).
Finally, various canons of statutory construction reinforce the
principle that the government should not benefit from mistaken
interpretations ofambiguous or otherwise confusing criminal laws. Under
the "venerable rule" of lenity, United States v. R.L.C, 503 U.S. 291, 305
(1992) (opinion ofSouter, J.), "penal laws are to be construed strictly" in
Appellant's Brief Page 16 of 68
No. 05-15-00148-CR
order to prevent the government from restraining individual liberty absent
clear authority to do so, United States v. Wiltberger, 18 U.S. (5 Wheat.) 76,
95 (1820). Thus, "when choice has to be made between two readings of what
conduct Congress has made a crime, it is appropriate, before we choose the
harsher alternative, to require that Congress should have spoken in language
that is clear and definite." United States v. Bass, 404 U.S. 336, 347 (1971)
(quoting UnitedStates v. Universal C.I.T. Credit Corp., 344 U.S. 218, 221-
22 (1952)) (internal quotation marks omitted). And if a criminal statute is so
indeterminate that "men of common intelligence must necessarily guess at
its meaning," the law is constitutionally void for vagueness. United States v.
Lanier, 520 U.S. 259, 266 (1997) (quoting Connally v. Gen. Constr. Co.,
269 U.S. 385, 391 (1926)).
The same canons apply to state statutes. In Texas, for example, any
statute enacted in the exercise of the police power must be strictly construed
so as to result in the least interference with personal liberty. And, of course,
the void-for-vagueness doctrine applies equally to state laws. See, e.g.,
Giaccio v. Pennsylvania, 382 U.S. 399, 404-05 (1966). The COUNTY
COURT'S decision supports a holding that a police officer may act upon an
unduly expansive interpretation oflaw, yet still act reasonably under the
circumstances and is at odds with these principles of construction. To the
Appellant's Brief Page 17 of 68
No. 05-15-00148-CR
extent a traffic statute is ambiguous, the government's power to restrain
individual liberty should shrink, not expand.
The COUNTY COURT resisted measuring reasonable suspicion
against the correct interpretation of the law partly so that it could treat
mistakes of law "the same" as mistakes of fact, which the Fourth
Amendment tolerates so long as the mistakes are objectively reasonable. In
contrast to factual inferences, legal analysis is not something that officers
must do on the fly or that officers are better trained than courts to undertake.
A traffic law, "unlike the case-by-case factual possibilities entailed in
probable cause and reasonable suspicion assessments, has an ex ante
epistemic baseline." Wayne A. Logan, Police Mistakes ofLaw, 61 Emory
L.J. 69, 86 (2011) (footnote omitted). Here, for instance, the TC either
requires "every" Citizen of Texas to register their private property as a
"vehicle" or it only requires registration by "persons" who have purchased a
"vehicle" in the last 30 days or are residents of this "state." Nothing an
officer might suddenly confront in the field could affect that purely legal
question. When it comes to legal assessments, ordinary people are not legal
technicians either, and they are held responsible for the law as correctly
interpreted. Thus, justas courts have long distinguished between criminal
defendants' mistakes of fact and law and held them accountable for the
Appellant's Brief Page 18 of 68
No. 05-15-00148-CR
latter, see Reynolds v. United States, 98 U.S. 145, 167 (1878), so should they
maintain this distinction when evaluating law enforcement's claims of
reasonable suspicion. A refusal to excuse mistakes of law provides an
"incentive to err on the side of constitutional behavior." United States v.
Johnson, 457 U.S. 537, 561 (1982); see also Davis v United States, 131 S.
Ct. 2419, 2435 (2011) (Sotomayor, J., concurring) ("[W]hen police decide to
conduct a search or seizure in the absence of case law (or other authority)...
exclusion of the evidence obtained may deter" violations of law).
An individual officer's misinterpretation of a traffic law closely
resembles the situation in Johnson. As in Johnson, 457 U.S. at 561, a
misinterpretation of traffic code involves an officer on patrol taking an
overly aggressive view of a legal issue on which "reasonable minds ... may
differ." UnitedStates v. Davis, 598 F.3d 1259, 1267 (11th Cir. 2010), aff d,
131 S. Ct. 2419 (2011) (internal quotation marks and citationomitted). As
the only three courts of appeals to have squarely considered the question (all
in the context of evaluating the applicability of the good-faith exception to
the exclusionary rule) have recognized, this is very different than relying on
an explicit directive from a court or legislature. Id.; see also United States v.
McDonald, 453 F.3d 958, 962 (7th Cir. 2006); United States v.
Chanthasouxat, 342 F.3d 1271, 1280 (11th Cir. 2003); United States v.
Appellant's Brief Page 19 of 68
No. 05-15-00148-CR
Lopez- Soto, 205 F.3d 1101, 1106 (9th Cir. 2000). And it is something
worthy of deterrence - at least in the sense of deeming such seizures as
unconstitutional.
Indeed, in a world in which police officers would be allowed to
conduct traffic stops anytime state law could reasonably be interpreted to
prohibit the conduct the officer observed, officers would be all but invited to
read traffic statutes aggressively. Instead of trying to determine the best
reading of the law, authorities wishing to vigorously enforce the law would
be encouraged to identify the broadest possible range of plausible readings
of any given traffic law, for such an approach would support traffic stops in
the greatest number of cases.
Not only would this incentive be problematic on its own terms, but it
also would threaten to put officers' interpretive practices at odds with well-
established doctrines of strict construction, lenity, and vagueness. When
officers confront ambiguous statutes on which they lack outside guidance,
they should be encouraged to do exactly whatother branches of the
government must: construe ambiguous statutes narrowly, in favor of
individual liberty. Only by measuring reasonable suspicion against the
Appellant's Brief Page 20 of 68
No. 05-15-00148-CR
correct interpretation of the law can the Fourth Amendment ensure these
incentives are aligned.
Measuring reasonable suspicion against the correct interpretation of
the law also encourages officers to take advantage of available tools to
become more familiar with the law. Officers have a variety of means at their
disposal to help them determine the meaning of traffic laws, including the
extensive availability of targeted legal education at police training
academies, increasingly powerful technology in officers' cruisers and
pockets, and the ability to ask for clarifications from individuals trained in
the law (such as local counsel or lawyers in an attorney general's office).
Only by refusing to excuse officers' mistakes of law would officers be
properly motivated to make use of these resources.
What is more, law enforcement agencies typically have unique
relationships with lawmakers and access to the legislative process. See, e.g.,
Rachel E. Barkow, Administering Crime, 52 UCLA L. Rev. 715, 728
(2005); Darryl K. Brown, Democracy and Decriminalization, 86 Tex. L.
Rev. 223, 232 n.31 (2007). Ifpolice departments are struggling to determine
the correct meaning ofcertain laws, the Fourth Amendment should
encourage them to ask legislatures to clarify the statutes - not to eschew
Appellant's Brief Page 21 of 68
No. 05-15-00148-CR
such clarification for fear that removing ambiguity in traffic statutes will
restrict their power.3
Measuring reasonable suspicion against the correct interpretation of
the traffic code also avoids problematic consequences for law-abiding
citizens. The Supreme Court has recognized, however, that citizens have a
"private interest in avoiding" traffic stops, Whren v. United States, 517 U.S.
806, 817-18 (1996), because such seizures are a substantial infringement on
one's liberty. A traffic stop constitutes a "possibly unsettling show of
authority," Delaware v. Prouse, 440 U.S. 648, 657 (1979), and involves "the
loss of our freedom to come and go as we please without police
interference," Navarette v. California, 134 S. Ct. 1683, 1697 (2014) (Scalia,
J., dissenting). Traffic stops moreover "create substantial anxiety," "interfere
with freedom of movement, are inconvenient, and consume time." Prouse,
440 U.S. at 657.
3This is not to say that the onus to generate unambiguous laws falls primarily on law
enforcement agencies, or on this Court through the tool of constitutional jurisprudence. It
is primarily the job of legislatures to enact clear laws. At the same time, "[t]he less the
courts insist on precision, the less the legislatures will take the trouble to provide it."
Antonin Scalia &Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 301
(2012).
Appellant's Brief Page 22 of 68
No. 05-15-00148-CR
More seriously, a simple mistaken traffic stop can escalate into a
series of increasingly invasive acts, as has been demonstrated in recent cases
throughout the Union, including Texas. Police effectuating traffic stops may
conduct protective pat-downs, Pennsylvania v. Mimms, 434 U.S. 106 (1977),
which this Court has recognized "must surely be an annoying, frightening,
and perhaps humiliating experience," Terry v. Ohio, 392 U.S. 1, 24-25
(1968). They also may request consent to conduct consensual searches,
which, as this case demonstrates, can be difficult for motorists to refuse.
Officers who conduct traffic stops also have the discretionto arrest
offending motorists, Atwater v. City ofLago Vista, 532 U.S. 318 (2001),
which canthen lead to involuntary searches of the person's possessions,
United States v. Robinson, 414 U.S. 218 (1973), strip searches, Florence v.
Bd. ofChosen Freeholders, 132 S. Ct. 1510 (2012), and possibly even the
collection ofDNA samples, Maryland v. King, 133 S. Ct. 1958 (2013).
It would be much more difficult - indeed, sometimes downright
impossible - for people to avoid being exposed to the possibility oftraffic
stops ifamistake oflaw could supply reasonable suspicion. Traffic laws are
classic malum prohibitum statutes; they typically proscribe conduct not
because itis inherently blameworthy but rather to further more regulatory
objectives. That being so, the main way for citizens to avoid tripping over
Appellant's Brief Page 23 of 68
No. 05-15-00148-CR
such statutes is to familiarize themselves with the traffic code. It is the
Citizen's responsibility to know the law.
Yet under the decision of the COUNTY COURT, Citizens seeking to
avoid exposing themselves to the burdens of traffic stops would have to
discern not only their legal obligations but also some unidentified sphere of
wholly innocent activity that a police officer believes is also prohibited.
Whatever precise formulation would apply here, there can be no doubt that
the scope of conduct covered by "reasonable" interpretations oftraffic codes
would be much broader than the scope of conduct covered by correct
interpretations of those laws.
That being so, officers would have much broader discretion to initiate
traffic stops, and citizens would be forced to give a wide berth to the traffic
code to account for this expansion of authority. Even more troubling,
officers would sometimes have the power to stop a motorist no matter what
the motorist does. When a driver has only two choices and the governing
law is capable ofbeing reasonably read to prohibit either choice, an officer
could stop the driver either way.
Were this Court to adopt the position that an officer can make a
reasonable mistake about the very existence ofa law, the citizen's quandary
11 *» s dBrief
Appellant •f Page
5 24 of 68
No. 05-15-00148-CR
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would only deepen, for now he would have to hypothesize about the non
existent laws that might reasonably exist, but do not. This was the case in
Travis v. State, 959 S.W.2d 32 (Ark. 1998), in which the court held that a
traffic stop for failing to display an expiration date sticker on a license plate
comported with the Fourth Amendment, even though state law required no
such sticker. Id. at 33-35. Surely it is unfair to require citizens seeking to
steer clear of police contact to imagine what an officermight reasonably
believe should be against the law but is not.
In Texas, as elsewhere, it is first and foremost "the legislature's job"
to decide which activities are unsafe and thus should be prohibited, not a
police officer's. And the Texas Legislature has squarely addressed what
entities are required to register their property as "vehicles" and display
license plates. Especially when a legislature has considered and resolved an
issue as directly as this, the responsibility of law enforcement is to learn and
apply what the statute provides, not reinterpret and broaden the law
according to officers' own intuitions about what they think would best
protect public safety.
At bottom, this case involves a simple proposition: This Court should
demand of the officers who seized Appellant exactly what the officer
Appellant's Brief Page 25 of 68
No. 05-15-00148-CR
intended to demand of him as a citizen - knowledge of the law. Anything
less would undermine long- settled relationships between the people and
their government. It would also destabilize the Supreme Court's carefully
delineated Fourth Amendment doctrine protecting fundamental rights from
remedies. There is no good reason to inflict such damage upon our
constitutional structure.
Applying the principals thus enunciated to the instant case, Appellant
challenges the reasonableness ofhis seizure under the Texas Constitution, Art.
I, § 9, Code ofCriminal Procedure, Chapter 14 and the U.S. Consitution,
Fourth Amendment. Appellate argued that Belcher's conclusion that appellant
was required to "register" his private property as a "vehicle" and display
STATE OF TEXAS issued license plates on it was not supported by the TC.
TC §502.040(a) is the section that expresses what entities are required
to register their private property as a "vehicle." It states I part:
"Not more than 30 days after purchasing a vehicle or becoming
a resident of this state, the owner of a motor vehicle, trailer, or
semitrailer shall apply for the registration ofthe vehicle for:"
TC §502.493(a) is the section that expresses the offense offailure to
display registration insignia and states inpart:
Appellant's Brief Page 26 of 68
No. 05-15-00148-CR
-k**»mK8,£<8*#*» ™ *»
"A person commits an offense if the person operates on a public
highway during a registration period a motor vehicle that does
not properly display the registration insignia issued by the
department that establishes that the license plates have been
validated for the period."
TC §504.943(a) expresses the offense for failing to display license
plates and states in part:
"Except as provided by Subsection (b), a person commits an
offense if the person operates on a public highway, during a
registration period, a motor vehicle that does not display two
license plates that:"
These TC provisions establishes the requirements for registration,
displaying registration insignia, license plates and TC offenses under those
sections. In order to supportBELCHER's suspicionthat appellantwas
required to display license plates on his private property, prior to seizing
Appellant, she would have to possess specific knowledge that appellant was a
"person," who had purchased a "vehicle" inthe "thirty days" prior to this
transaction or that he was a "resident" ofthe "state". Belcher's suspicion was
based solely onhervisual observations of no license plate and her
interpretation ofthe TC. This alone does not support reasonable suspicion to
believe that Appellant was "required" to register his private property and
display license plates. Without specific articulable facts that appellant met one
ofthe requirements for registration, Belcher was without alegal or factual
Appellant's Brief Page 27 of 68
No. 05-15-00148-CR
basis to support her suspicion that appellant was required to register and
display license plates.
A recent United States Supreme Court opinion specifically addresses
the standard to be applied in determining the reasonableness of a police
officer's observation that he has witnessed a violation of law in the case of
Helen v. NORTH CAROLINA, 135 S.Ct. 530 (2014). Appellant Heien was
challenging the constitutionality of his seizure under a North Carolina traffic
statute by a Surry County Sheriffs Deputy named Darisse. Darisse initiated
the seizure when he observed that one of appellant's two stop lamps was not
functioning properly. Darisse concluded that he had witnessed a violation of
law and conducted a warrantless seizure of Heien. The seizure led to a search
of Heien's car, to which Heien consented, and resulted in the discovery of
cocaine. Heien was charged with trafficking in cocaine and he sought to
suppress the evidence because he claimed the seizure was unreasonable and
violated the Fourth Amendment.
Heien argued that Darisse made a mistake of law, when he concluded
that he had witnessed a violation of law. Heien argued that this mistake of law
resulted in an unconstitutional seizure and discovery of the cocaine should be
suppressed. The trial court found the seizure reasonable and convicted Heien.
The North Carolina Court of Appeals reversed, finding the seizure
Appellant's Brief Page 28 of 68
No. 05-15-00148-CR
unreasonable. The North Carolina Supreme Court reversed again, finding the
seizure reasonable. The U.S. Supreme Court affirmed the decision of the North
Carolina Supreme Court. In finding that Darisse's's stop was based on
reasonable suspicion. The Court stated the following:
"The critical point is that the statute poses a quite difficult
question of interpretation, and Sergeant Darisse'sjudgment,
although overturned, had much to recommend it. I therefore
agree with the Court that the traffic stop he conducted did not
violate the Fourth Amendment. ..." Heien v. NORTH
CAROLINA, 542.
Justice Kagan, writing in a concurring opinion, in which Justice
Ginsberg joined, stated the following:
"A court tasked with deciding whether an officer's mistake of
law can support a seizure thus faces a straightforward question
of statutory construction. If the statute is genuinely ambiguous,
such that overturning the officer's judgment requires hard
interpretive work, then the officer has made a reasonable
mistake. But if not, not."
The Supreme Court found North Carolina statutes could be read to
support Heien's interpretation that he was required to have only one stop lamp.
However, it was also reasonable for Darisse to believe that a stop lamp was
included inthe term "rear lamps," and rear lamps were required by another
subsection to be in working order. Darisse's seizure ofHeien was found to be
based on reasonable suspicion because an examination ofthe relevant law
Appellant's Brief Page 29 of 68
No. 05-15-00148-CR
revealed there was statutory authority to Darisee's interpretation ofwhat
constituted a violation of the law. Many of the facts leading up to the seizure in
the Heien case are consistent with the facts of Appellant's case. Both cases
involve the enforcement of Uniform Traffic Laws. The territorial jurisdiction
of these traffic laws is a fictional federal territorial "State" within the exterior
limits of the state of North Carolina and the state of Texas, both states in the
Union. North Carolina General Statutes §20-4.01(45); TC §521.001(a)(8).
Both cases involve warrantless seizures based only on a visual observation
made by the officers. Both officers concluded they had witnessed a violation
of the law. Neither officer had specific information about Heien or Appellant
prior to their seizures. The question raised by Heien and now by Appellant;
were the officers' interpretation of law supported by the actual law?
On cross examination, Belcher testified as follows (RRVol. 4, 36:13-
37:3):
Q. "Officer Belcher, lets go backto the moment just before you
stopped me. Did you know anything me?
A. No.
Q. Did you know my name?
A. No.
Q. Did you know whether or not I had bought amotor vehicle in the
Appellant's Brief Page 30 of 68
No. 05-15-00148-CR
last 30 days?
A. No.
Q. Did you know whether or not I was a resident of the state?
A. No.
Belcher went on to testify that she believed Appellant was a "person" as
defined in the TC and more specifically, "an individual." When Belcher was
asked what an individual was, she responded a "person." When asked if she
had been instructed on how to use the Code Construction Act, to interpret the
TC, she responded, "No, I'm not aware of that." When asked about her
interpretation of "person," "vehicle," and "motor vehicle," Belcher made
circular arguments that do not comport with the actual law (RR_Vol._4, 37:4-
45:22). Belcher also testified that she stopped appellant because he did not
display license plates as required by law.
When asked about the TC requirements for registration, Belcher's
interpretation was again not supported by the actual law, and she once again
admitted that she did not know whether or not Appellant had purchased a
"motorvehicle" in the lastthirty days or that Appellant was a "resident" of the
"state" (RR_Vol._4 46:10-57:19). Belcher was not able to articulate why she
concluded Appellant was "required" to "register" his private property under
the TC. She stated she did not have to know Appellant was required to register
Appellant's Brief Page 31 of 68
No. 05-15-00148-CR
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in order to conclude that he specifically was required to display license plates
(RR 52:20-53:25). Belcher's interpretation of the TC puts the offense of not
displaying license plates, TC §504.943, the statue under which she seized
Appellant, before the requirement to register, TC §502.040(a), which
authorizes the issuance and placement of license plates, TC §504.010.
Belcher's testimony that she did not have to know that Appellant was required
to register before she could conduct a warrantless seizure is contrary to law
and all warrantless seizure authority.
When asked a series of questions regarding the definition of the term
"state" as used in the TC to define the territorialjurisdiction of this code, she
testified the term "state" as used in the definition of "state" in the TC and
Gov.C, means "Texas." Belcher could not support her interpretation with any
authority (RR_Vol._4, 64:25-74:13). Belcher testified that her interpretation of
the term "State" was based on her training and common knowledge.
Unfortunately, her interpretation is not inaccord with the definition expressed
by the legislature. The legislature's definition controls inthis case.
Unlike Darisse, who cited sections of the North Carolina statutes to
support his conclusion that he had witnessed aviolation oflaw, Belcher and
STATE OF TEXAS are unable to cite any provision of the TC that supports
her conclusions that Appellant met any ofthe conditions ofTC §§502.040,
Appellant's Brief Page 32 of 68
No. 05-15-00148-CR
504.010(a) or 504.943(a) and was required to register his private property as a
"vehicle" and display license plates. Without knowledge of specific articulable
facts about Appellant, prior to the seizure, Belcher's suspicions regarding
Appellant were unreasonable. A seizure made without reasonable suspicion is
a violation of the Texas Constitution, Art. 1 §9, the U.S. Constitution, Fourth
Amendment and C.Crim.Proc. Chap. 14.
The standard applied in the Heien case for determining the
reasonableness of an officer's conclusion that he has witnessed a violation of
law was utilized a few months later in the case ofNorthrup v. CITYOF
TOLEDO POLICE DEPARTMENT, UNITED STATES COURT OF
APPEALS, No. 14-4050 (May 13, 2015). While the facts of the case are
different, this case, like the instant case and the Heien case, involved a visual
observation made by a CITY OF TOLEDO POLICE OFFICER, Bright, who
concluded that based on his observation he had witnessed a violation of law.
Bright observed Northrup carrying a hand gun, holstered on his side and
concluded this act was a violation of Ohio law. Bright seized Northrup without
a warrant. Afterdisarming Northrup, putting him in handcuffs and placing
him in the back seatof his patrol car, the officer was able to identify Northrup.
Bright discovered that Northrup had an open carry permit making his carrying
ofthe firearm legal. Bright cited Northrup onanother charge that was later
Appellant's Brief Page 33 of 68
No. 05-15-00148-CR
dismissed.
Northrup sued Bright, another officer Ray and the CITY OF TOLEDO
POLICE DEPARTMENT, in FEDERAL DISTRICT COURT. Northrup
claimed violations of several of his rights protected by certain provisions of the
Federal Constitution and other state charges. The DISTRICT COURT
permitted Northrup's Fourth Amendment and state-law claims against Bright
and Ray to go to trial. Bright appealed the DISTRICT COURT'S decision to
the COURT OF APPEALS. In the COURT OF APPEALS, officer Bright
claimed that he had a "reasonable suspicion" that Northrup was engaged in
criminal activity based on two undisputed facts: (1) Northrup was visibly
carrying a gun in his holster, and (2) Bright was responding to a 911 call.
That reasonable suspicion, Bright claims, justified his disarmament,
detention, and citation of Northrup. Ultimately, Ohio law did not support
Bright's conclusion that he had witnessed a violation of law. The court made
the following statement on the issue:
"While the dispatcher and motorcyclist may not have
known the details of Ohio's open-carry firearm law, the police
officer had no basis for such uncertainty. If it is appropriate to
presume that citizens know the parameters ofthe criminal laws,
it is surely appropriate to expect the same of law enforcement
officers—at least with regard to unambiguous statutes. Heien v.
North Carolina, 135 S. Ct. 530, 540 (2014)."
Appellant's Brief Page 34 of 68
No. 05-15-00148-CR
Unlike the Heien case, where the North Carolina statutes supported
Derasee's interpretation that he had witnessed a violation of law, the Ohio
law did not support Bright's interpretation that he had witnessed a violation
of law. In Appellant's case, the TC does not support Belcher's interpretation
of these provisions. TC Chapters 502 and 504 establish the requirements for
registration and license plates. Belcher's seizure of Appellant was
unreasonable because it was based on a mistake of law and not
particularized reasonable suspicion. Belcher knew nothing about Appellant
at the time of the seizure that supported her suspicion that she had witnessed
a violation of law. In Texas, there can be no warrantless arrest absent
statutory authority. State v. Steelman, 93 S.W.3d. 102, 107 (Tex.Crim.App.
2002). Defendant's rights protected by the Fourth Amendment, the Texas
Constitution, Art. I. §9, and C.Crim.Proc. Chapter 14 were violated as a
result of this warrantless seizure. Appellant challenged the reasonableness of
his seizure prior to trial on the merits (CR270-272). Belcher confirmed the
unreasonableness of the seizure when she testified regarding the reasons for
her action. This conviction should be reversed and the case dismissed.
Issue II. The trial JUDGE erred as matter of law, when she refused to
disqualify herself.
The COURT erred, as a matter of law, when the trial JUDGE refused to
Appellant's Brief Page 35 of 68
No. 05-15-00148-CR
- • «.J!S=s«'»
As argued in Issue I, TC §502.040 is the sectionthat establishes the
requirements for registration. TC §502.473 and 504.943 are the sections that
define the alleged offenses. The complaint fails to allege that appellant had
purchased a "vehicle" less than 30 days prior to this transaction or that
appellant is a "resident of this state." The charging instrument failed to allege
why Appellant was required to register and display license plates. The
charging instrument and these TC sections, use terms of art that are statutorily
defined such as "person," "operator," "vehicle," "motor vehicle," "drive,"
"state," "resident," and "public highway." Many ofthese terms are defined by
statute inthe TC using multiple other terms that are defined by statute. These
multiple definitions create multiple theories upon which appellant might be
convicted.
With so many different combinations oftheories the PROSECUTOR
could attempt to prove for purposes ofconviction, it is impossible for
appellant to know upon what theory the PROSECUTOR would rely and
therefore impossible for Appellant to prepare a defense. Appellant is not
required to anticipate any and all variant facts the state might hypothetically
seek to establish. While the charging instrument follows the language inthe
statute, this is not sufficient when the statue contains multiple ways to
violate the provision.
Appellant's Brief Page 53 of 68
No. 05-15-00148-CR
The charging instrument is also insufficient to bar future charges arising
from the same transaction. When appellant petitions for sufficient notice of
the state's charge by motion to quash adequately setting out the manner in
which notice is deficient, the presumption of innocence coupled with his
right to notice requires that he be given such notice. Drumm v. State, 560
S.W.2d 944, 946-947 (1977).
Appellant was entitled to such notice and his motion to quash was
sufficient to point out his need. The COURT erred as a matter of law and
abused its discretion when it refused to issue findings and conclusions and
denied appellant's motion to quash. The COURT erred and appellant was
harmed by the error. This verdict in this case should be reversed and the case
dismissed.
Issue X. The COURT erred as a matter of law in finding the charging
instrument substantively sufficient to allege an offense.
Defendant objected to and continues his objections to substantive
defects in the charging instruments filed against him. (CR285-287, 361-362).
The Court ofCriminal Appeals addressed the issue ofthe necessity of
alleging the essential elements ofan offense in the case of George v. State, 145
S.W.2d 187, 188 (1940), the Court ofCriminal Appeals addressed the subject
Appellant's Brief Page 54 of 68
No. 05-15-00148-CR
ofthe sufficiency of a charging instrument alleging registration violations. The
court stated:
"It is our opinion that the above allegation is not sufficient to
apprise appellant in what way he had failed to follow the
requirements of the law relative to the registration of the
automobile that he was operating on such highway. There is
more than one article of the statute governing the proper
registration of motor vehicles, and the complaint as herein
presented might include a violation of any one of such articles
as a basis of this prosecution. Appellant is entitled to have the
complaint apprise him in no uncertain terms of the specific
requirement of the law that he had failed to comply with, and if
necessary, prepare a defense, if possible or desired..."
"It is not always sufficient to follow the language of the statute.
There are cases that require greater particularity, either from the
obvious intention of the Legislature or from the application of
known principles of law,.."
There is no allegation that appellant was "a resident of this state" or had
purchased a vehicle in the 30 days prior to this transaction. There is no
allegation appellant is a "person" as defined by the code. There is no allegation
of specifically how appellant's private property was being "used" as a
"device" to transport or draw persons or property as defined in the TC. There
is no allegation that appellant committed an act withinthe territorial
jurisdiction of "State." If the charging instrument fails to allege an offense
against the laws of Texas, see Tex. Const. Art. V, §12(b)6, it is subject to
Appellant's Brief Page 55 of 68
No. 05-15-00148-CR
exception by a motion to quash. Appellant objected to these defects prior to
trail (CR 285-287).
Because judicial action without jurisdiction is void, it cannot be
waived and may be raised at any time by direct or collateral attack. Although
most rights and procedural matters may be waived, jurisdictional matters
may not. A judgment which is void, is conclusive of nothing, and may be
subject to inquiry in a collateral proceeding. Exparte Duncan, 42 Tex.Cr.R.
661, 62 S.W. 758; Exparte Cannon, 546 S.W.2d. 266; Castas v. State,
Tex.Cr.App., 503 S.W.2d. 262, 263 (1973). see CCP Art. 27.08. To warrant a
conviction, an action or omissionmust be plainly and unmistakably within the
definition ofthe statue, within both the letter and the spirit of the law, and if
there is any doubt whether the statute embraces it, that doubt must be resolved
in favor of the accused, see Thomas v. State, 919 S.W.2d. 427, 430. Belcher
testified that Appellant's property was not registered as a motor vehicle at the
time of this stop. Only persons who apply for registration are issued license
plates and are required to display them under TC §504.010. The COURT
erred as a mater of law and abused its discretion when it found the charging
instrument sufficient to allege an offense. The judgment in this case should
be reversed and dismissed.
Appellant's Brief Page 56 of 68
No. 05-15-00148-CR
Issue XL The TC "as applied" to appellant violated U.S. Constitution,
Sixth Amendment.
Application of the TC to appellant's private property and activities is
unconstitutional as a violation of the Sixth Amendment to the federal
constitution (CR_365-366). The Sixth Amendment guarantees to every Citizen
of the Union in a criminal prosecution, the rightto a "speedy and public trial,
by an impartial jury ofthe State and district wherein the crime shall have been
committed..." The term "State" as used in the TC, means only territories and
possessions ofthe United States, not states inthe Union. The record shows that
the activities, which are the subject of this transaction, occurred within the
exclusive territory ofthe Union state ofTexas, city ofFRISCO, county of
Collin.
This transaction did not occur within the territory of "State" as defined
in the TC. The COUNTY COURT enforcing this code is not sitting as a
general jurisdiction court ofthe de jure government ofTexas, acting as a state
inthe Union enforcing its general laws. The COUNTY COURT ina TC case
is sitting as an administrative court enforcing federal territorial law.
Appellant's trial and conviction in this administrative court acting under
federal authority is not atrial in the "state and district wherein the crime shall
have been committed" pursuant to the Sixth Amendment to the federal
Appellant's Brief Page 57 of 68
No. 05-15-00148-CR
constitution. A trial before this administrative court, applying federal territorial
law is a violation of the Sixth Amendment to the federal constitution. This
case should be reversed and dismissed.
Issue XII. The Subject Matter of the TC is unconstitutionally vague.
It is a basic principle of due process that a statute is void for
vagueness if its prohibitions are not clearly defined, see Papachristou v. City
ofJacksonville, 405 U.S. 156, 165 (1972); State v. Holcombe, 187 S.W.3d
496, 499 (Tex. Crim. App. 2006), cert, denied, 127 S.Ct. 176 (2006). When
reviewing an attack upon the constitutionality of a statute, we begin withthe
presumption that the statute is valid and the legislature has not acted
unreasonably or arbitrarily, see Luquis v. State, supra; Exparte Ports, supra;
Papachristou v. City ofJacksonville, supra; State v. Holcombe, supra;
Graynedv. City ofRockford, supra. A vague law impermissibly delegates
basic policy matters to policemen, judges and juries. See Groyned v. City of
Rockford, supra.
Appellant challenged the constitutionality ofthe TC "as applied" to his
private travel in his motion to quash the complaint because the subject matter
"transportation" is vague (CR_295-297, 364-365). Appellant argued that the
PROSECUTOR and the COUNTY COURT improperly interpreted and
Appellant's Brief Page 58 of 68
No. 05-15-00148-CR
applied the TC to appellant's private property when said property was being
used for purely private activity. Applying the TC to activity not expressed in
the subject ofthe bill violates the Texas Constitution, Art. 3, § 35. The
COUNTY COURT and STATE OF TEXAS have refused to take judicial
notice ofthe definitions of"transportation" and "travel" provided by appellant
(CRJ07-312). The COUNTY COURT and STATE OF TEXAS have refused
to provide any definition for "transportation" as used to define the subject
matter in the enacting clause ofthe TC. Appellant's interpretation ofthese
terms was obtained from established dictionaries, both lay and legal that are
not subject to dispute. The subject matter ofalaw must be clear and definite if
it is intended to regulate the activities ofthe sovereign People ofTexas.
IfaCitizen ofaverage intelligence cannot definitely know what activity
is being regulated, the law is vague and therefore void for vagueness. See
Winter v. People ofState ofNew York, 333 U.S. 507, 517-520 (1948). The
notion that the law is definite and knowable sits at the foundation ofour legal
system. See Cheek v. United States, 498 U.S. 192,199 (1991). To warrant a
conviction, an action or omission must be plainly and unmistakably within the
definition ofthe statue, within both the letter and the spirit ofthe law, and if
there is any doubt whether the statute embraces it, that doubt must be resolved
in favor ofthe accused, see Thomas v. State, 919 S.W.2d. 427,430. If
A „ „ D•f Page 59 of 68
Appellant's Brief 6
No. 05-15-00148-CR
appellant's request for notice of the definition of transportation does not
accurately define the subject matter of the TC, and the COURT adopts some
other undisclosed or unknown definition, the subject matter of the TC "as
applied" to appellant is ambiguous and therefore void for vagueness. If a
criminal statute is so indeterminate that "men of common intelligence must
necessarily guess at its meaning," the law is constitutionally void for
vagueness. UnitedStates v. Lanier, 520 U.S. 259, 266 (1997) (quoting
Connallyv. Gen. Constr. Co., 269 U.S. 385, 391 (1926)).
Issue XIII. Belcher's testimony should have been limited.
Appellant made pretrial motion to limit BELCHER's testimony when
using certain technical and statutory terms as either a lay or expert witnesses
under Rule of Evidence 701, 702 and 704 (CR_303-307). Appellant first
wanted an offerof proofthat Belcher knew and understood the definitions of
the words she was using to describe appellant's activities and his property. The
COUNTY COURT refused to hear Appellant's motionbecause it should have
been titled a motion in limine. It was error for the COUNTY COURT not to
treat Appellant's motion inthe nature ofthe motion and not based onits title.
State v. Evans, 843 S.W.2d 576 (Tex.Cr.App. 1992). The motion should have
been decided on its merits. Such a hearing would have limited the testimony of
Belcher when she used statutory and technical terms without proofin the
Appellant's Brief Page 60 of 68
No. 05-15-00148-CR
record that she knew and understood the meanings of the terms she was using.
The testimony should have been limited or excluded after proper and timely
objections under Rules of Evidence 701, 702, 704 and 705. A lay witnesses'
testimony was found to be inadmissible in the case of Lum v. State, 903
S.W.2d. 365, 370 (Tex. App. - Texarkana 1995, pet. Ref d) lay witness not
shown to be familiar with legal definition of negligence; An expert witness
was erroneously allowed to testify in the case of E-Z Mart Stores, Inc. v.
Terry, 794 S.W.2d. 63, 64-65 (Tex.App. - Texarkana 1990, writ denied)
expert testimony that defendant was negligent was erroneously admitted
because legal definition ofnegligence was not explained to witness and he
did not demonstrate knowledge of its meaning. Other cases on this point are
Louder v. De Leon, 754 S.W.2d 148, 149; Fairow v. State, 943 S.W.2d 895,
900; Harvey v. Culpeper, 801 S.W.2d 596, 600-01 (Tex.App.-Corpus Christi
1990, no writ).
These cases establish a standard for the admission of expert or lay
testimony. Any witness testifying under Tex. Rule ofEvidence 701 or 702
must demonstrate that the witness knows and understands the legal
definition of terms she uses during her testimony. It was harmful error not to
hear and consider this motion.
Appellant's Brief Page 61 of 68
No. 05-15-00148-CR
Issue XIV. The CLERK's affidavit is defective as a charging instrument.
Appellant challenges the affidavit of the CLERK of the CITY OF
FRISCO MUNICIPAL COURT as defective (CR_272-273, 275-78, 370-371).
The CLERK is attesting to alleged facts that are based on information
provided in a report that is not verified.
The CLERK is not a proper officer to act as affiant in a criminal
prosecution. The charging instrument is labeled a "complaint," but it is
actually in the nature of an "information." The allegation is based on
information provided by some credible person. There is no provision in
C.Crim.Proc. Art. 45 that authorizes a charging instrument based on
information provided by some credible person. However, Art. 45.002 states in
part:
".. .If this chapter does notprovide a rule of procedure governing
any aspect of a case, the justice orjudge shall apply the other
general provisions ofthis code to the extent necessary to achieve
the objectives ofthis chapter."
This charging instrument should be held to the standards of an
"information" under C.Crim.Proc. Arts. 21.20, 21.21 and 21.22. An
information shall not be presented until affidavit has been made by some
credible person charging the appellant with an offense. The affidavit must be
filed with the information. No such affidavit was filed with this charging
instrument. It is therefore defective and should have been quashed.
Appellant's Brief Page 62 of 68
No. 05-15-00148-CR
Issue XV. Belcher's unsworn report cannot support an information.
Belcher's unsworn report serves as the basis for allegations made in the
charging instrument (CR_277-278, 370). The CLERK's affidavit is in the
nature of an information under C.Crim.Proc. Arts. 21.20,21.21 and 21.22.
Belcher's unverified report should be viewed as a complaint in support of the
information made by the CLERK. Belcher's unsworn report is insufficient to
support an information. The COURT erred as a matter of law when it found
that BELCHER's report was reliable and sufficient to support a charging
instrument.
Issue XVI. Appellant's request for judicial notice of adjudicative facts
should have been granted.
Under Texas Rule of Evidence 201(b), a court may take judicial notice
of facts that are not subject to reasonable dispute if the facts are either(1)
notorious, that is, generally known within the territorial jurisdiction ofthe trial
court, or (2) verifiable, that is, capable of accurate and ready determination by
resorting to sources whose accuracy cannot reasonably be questioned. In re
J.L., 163 S.W.3d 79, 85 (Tex. 2005); see Office ofPub. Util. Counsel v. Pub.
Util. Comm 'n, 878 S.W.2d. 598, 600 (Tex. 1994). An explicit definition of
Appellant's Brief Page 63 of 68
No. 05-15-00148-CR
PietfiiS**Wp^SMtWKsSfSrt^VSW %*
"transportation" is essential to a lawful interpretation and application of this
code. An unambiguous definition is also necessary to give Citizens of Texas
proper notice of what activity is subject to regulation and control by this code.
see Tex. Const., Art. Ill, §35. Appellant filed a request for judicial notice of
the definition of the term "transportation" (CR_308-313, 374-375). The
PROSECUTOR failed to file a response to the requested notice and offered no
interpretation at the hearing. The COURT denied the motion and did not state
exactly what activity is the subject of regulation by this code (CR338).
Appellant provided a definition from sources whose accuracy cannot be
reasonably questioned. It was harmful error for the COUNTY COURT not to
notice the requested definition and provide a lawful interpretation expressing
the subject matter of this code.
Issue XVII. The COURT erred as a matter of law and abused its discretion
when it refused to strike the testimony of BELCHER.
Appellant made a motion to strike all testimony of Belcher, where she
used statutory terms to describe appellant's activities at the close of the
PROSECUTOR'S presentation of evidence. Belcher testimony is conclusive
evidence that she doesn't understand the meanings of statutory terms she used
to describe Appellant and his property and activities. The law does not
Appellant's Brief Page 64 of 68
No. 05-15-00148-CR
:t--^'**ww^W9»^sfc'
support Belcher's interpretation of the relevant TC sections. Her testimony
was unreliable and therefore inadmissible because not relevant or helpful to
the trier of fact. seeLum v. State, supra; E-ZMart Stores, Inc. v. Terry, supra;
Louder v. De Leon, supra; Fairow v. State, supra. At the conclusion ofthe
presentation of evidence by the PROSECUTOR, Appellant renewed his
objections by moving the COURT to strike Belcher's testimony where she
used terms that were defined by statute (RR_Vol._3, 80:8-81:17) (CR373-
374). The COURT denied the motion. The testimony should not have been
admitted in the first instance and should have been stricken from the record
on timely motion of appellant. The COURT erred as a matter of law and
abused its discretion when the motion to strike was denied after timely
objection. The error was harmful to Appellant and should not have been
considered.
Issue XVIII. The COURT erred as a matter of law when it found the evidence
sufficient to support conviction.
Appellant challenged the sufficiency of the evidence in his motion for
new trial (CR375-376). There was no reliable evidence that prior to seizing
Appellant, Belcher was in possession ofreliable information that Appellant
was required to register his private property as a vehicle and display license
Appellant's Brief Page 65 of 68
No. 05-15-00148-CR
--#>*.B*4s»a*^ssj(fi**
plates on it; that appellant was engaged in "transportation" on a "public
highway;" that Appellant has the status of "person;" that Appellant committed
any act or omission within the territorial jurisdiction of "State;" or that
Appellant committed an offence against the laws of Texas. BELCHER's
testimony shows that prior to seizing appellant, she knew nothing about
Appellant. There was no reliable evidence the TC is a general law of Texas
that applies to Appellant as a Citizen of Texas.
Belcher's testimony, in which she used terms that were defined by
statute, should not have been admitted after timely and proper objection by
appellant. All testimony of Belcher, in which she used terms that were defined
by statute, was not reliable and should have been stricken from the record after
timely motion to strike by appellant(RR_Vol._80:8-81:17). Even with the
admission of Belcher's testimony, the evidence presented was insufficient to
support conviction. No offense against the laws of Texas was alleged; and
Belcher's testimony was not credible and was insufficientto support
conviction.
Appellant's Brief Page 66 of 68
No. 05-15-00148-CR
CONCLUSION
The record on appeal shows the COUNTY COURT did not apply a
correct interpretation ofthe TC to the facts in convicting Appellant. The
COUNTY COURT committed numerous fundamental errors and abuses of
discretion in pretrial motions, during the trial and post trial motions. Because
this appeal challenges the interpretation and application of the TC to the facts
of this case, Appellant has provided a complete record to the Court of Appeals
and seeks a de novo review. These errors and abuses were harmful to appellant
and this conviction should be reversed and dismissed.
PRAYER
Wherefore, appellant prays that the Court of Appeals, will reverse the
conviction of the trial COURT and dismiss the charge against him.
Respectfully submitted,
Robert Earl Man
Sui Juris, a natural person
All rights reserved without prejudice
9720 Coit Road #220-116
Piano, Texas
Tel. 214-868-8698
Appellant's Brief Page 67 of 68
No. 05-15-00148-CR
CERTIFICATE OF COMPLIANCE
1. This brief complies with the type-volume limitations on Tex. R. App. P.
9.4(i)(2)(B) because it contains 14,723 words, excluding parts of the brief
exempted by Tex. R. App. P. 9.4(i)(l).
2. This brief complies with the typeface requirements of Tex. R. App. P.
9.4(e) because it has been prepared in a proportionally spaced typeface using
Microsoft Word for Mac version 14, in 14 point Times New Roman font with
12 point for footnotes.
Robert E.
CERTIFICTE OF SERVICE
This is to certify, pursuant to Tex. R. App. P 9.5, on this the 9th day of
January, 2015, a true and correct copy of the above and foregoing instrument
was served upon appellee's counsel of record at the below listed addresses
using the following methods.
Personal Delivery
COLLIN COUNTY DISTRICT ATTORNEY
2100 Bloomdale Road
McKinney, Texas 75071
Ropert E. Marzett
Appellant's Brief Page 68 of 68
No. 05-15-00148-CR
Robert Earl Marzett v. State
Combined Opinion