ACCEPTED
01-14-01028-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
4/14/2015 8:01:00 PM
CHRISTOPHER PRINE
CLERK
FILED IN
1st COURT OF APPEALS
HOUSTON, TEXAS
4/14/2015 8:01:00 PM
IN THE COURT OF APPEALS CHRISTOPHER A. PRINE
FIRST DISTRICT Clerk
301 Fannin St, Houston, TX, 77002
1st COA Case No. 01-14-01028-CV
(Oral Argument Waived)
Originating Court Case No. 2014-63727
BROWSERWEB MEDIA AGENCY
Appellant
v.
MAXUS ENERGY CORPORATION
Appellee
OBJECTION TO MOTION TO DISMISS
Case No. 01-14-01028-CV
OBJECTION TO APPELLEE’s MOTION TO DISMISS
The Appellant objects to the Appellee’s filing dated April 14th, for the following
detailed reasons.
MOTION FOR PRODUCTION OF MISSING DOCUMENTS
Browserweb filed an Informal Brief & Motion to Strike Court Reporter’s Record &
Fees on March 9, 2015. This Court denied that motion and stated that “the
appellant’s brief is due within 30 days of the date of this order.”
What the Appellee has neglected to include in their waiver objection and summation
is that Browserweb filed a Motion for production of missing documents with this
Court on 29th March 2015. The Court’s written Order / response was issued on the
9th of April, 2015, the same day as the original deadline of April 9th for the filing of
the Brief. (see Exhibit 414)
If the Appellants’ Motion had been approved by this Court, there would be new and
important documents for inclusion in the Brief. It is assumed by this pro-se party
that as with the first motion, the Court would allow Appellant a 30 day extension
after its Order so the Appellant could prepare and file Brief.
DUE PROCESS
The Fifth and Fourteenth Amendments to the United States Constitution contain a
due process clause. Due process deals with the administration of justice and thus the
due process clause acts as a safeguard from arbitrary denial of life, liberty, or
property by the Government outside the sanction of law. An analysis made by the
late Judge Henry Friendly in his well-regarded article, "Some Kind of Hearing,"
generated a list that remains highly influential, as to both content and relative
priority:
1. An unbiased tribunal.
2. Notice of the proposed action and the grounds asserted for it.
3. Opportunity to present reasons why the proposed action should not be taken.
4. The right to present evidence, including the right to call witnesses.
5. The right to know opposing evidence.
6. The right to cross-examine adverse witnesses.
7. A decision based exclusively on the evidence presented.
8. Opportunity to be represented by counsel.
9. Requirement that the tribunal prepare a record of the evidence presented
10. Requirement that the tribunal prepare written findings of fact and reasons for its
decision.
THE REQUIREMENTS OF DUE PROCESS
Due process requires that the procedures by which laws are applied must be even-
handed, so that individuals are not subjected to the arbitrary exercise of government
power.
Although due process tolerates variances in procedure "appropriate to the nature of
the case," it is nonetheless possible to identify its core goals and requirements. First,
"[p]rocedural due process rules are meant to protect persons not from the deprivation,
but from the mistaken or unjustified deprivation of life, liberty, or property."
Thus, the required elements of due process are those that "minimize substantively
unfair or mistaken deprivations" by enabling persons to contest the basis upon which
a State proposes to deprive them of protected interests.
In an adversarial system of justice it is generally considered fair to afford both
parties the opportunity to respond. It should follow, if 30 days was allowed by
this Court after an Order on Appellants last Motion, it would be logical that the
second Motion would receive the same time, especially as the Order was rendered
on the date the “original” brief is due.
VOID FOR VAGUENESS
In American constitutional law, a statute is void for vagueness and unenforceable if
it is too vague for the average citizen (or pro-se Appellant) to understand. There
are several reasons a statute (in this case; a rule of an organization or institution)
may be considered vague; in general, a statute might be called void for vagueness
reasons when an average citizen cannot generally determine what persons are
regulated, what conduct is prohibited, or what punishment may be imposed.
The Appellant is in the same situation as this case below, albeit, in a civil case
setting where the void for vagueness applies in this Appeal. The following
pronouncement of the void for vagueness doctrine was made by Justice Sutherland
in Connally v. General Construction Co., 269 U.S. 385, 391 (1926):
[T]he terms of a penal statute [...] must be sufficiently explicit to inform those who
are subject to it what conduct on their part will render them liable to its penalties…
and a statute which either forbids or requires the doing of an act in terms so vague
that men of common intelligence must necessarily guess at its meaning and differ
as to its application violates the first essential of due process of law.
PRAYER
For these reasons, Appellant prays that this Court dismisses the Appellee’s Motion
and extends the Brief filing due date by 30 days.
Declaration
My name is Mark Stephen Burke, my date of birth is June 20th, 1967, my address
is 46, Kingwood Greens Dr, Kingwood, TX 77339, USA and I declare under
penalty of perjury that the foregoing is true and correct.1
1
Sec. 132.001. UNSWORN DECLARATION. (a) Except as provided by Subsection (b), an unsworn declaration
may be used in lieu of a written sworn declaration, verification, certification, oath, or affidavit required by
statute or required by a rule, order, or requirement adopted as provided by law.
CaseNo.01-14-01028-CV
Respectfully Submitted,
On this day, 14th April, 2015
Mark Burke
Browserweb Media Agency
46 Kingwood Greens Dr
Kingwood, Texas 77339
Telephone: (832) 654-3511
Facsimile: (866) 705-0576
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing has been provided to
the following via electronic mail on this 14th day of April, 2015::
GmBS &BRUNS, L.L.P.
J. Benjamin Bireley
1100 Louisiana, Suite 5300
Houston, Texas 77002
FILE COPY
EXHIBIT 414
FIRST COURT OF APPEALS
301 Fannin Street
Houston, Texas 77002-2066
Thursday, April 09, 2015
RE: Case No. 01-14-01028-CV
Style: Browserweb Media Agency, Mark Burke
v. Maxus Energy Corporation
Please be advised the Court today DENIED Appellant’s motion “for
production of missing documents” filed March 30, 2015 in the above referenced
cause.
T. C. Case # 2014-63727 Christopher A. Prine, Clerk of the Court
John Bireley
Gibbs & Bruns LLP
1100 Louisiana St Ste 5300
Houston, TX 77002-5215
DELIVERED VIA E-MAIL