Mireles (1) removed people and property (2) from one place to another (3) for hire
How later courts described this case
- Mireles (1) removed people and property (2) from one place to another (3) for hire
- “Courts have consistently held that in the event there is an unambiguous contract and there is no dispute as to the facts that may constitute a breach, it is error to submit the case to the jury.”
- jury instruction on intent, in full context of case, established impermissible presumption causing egregious harm
- for appellate jurisdiction, the existence of a sentence is jurisdictional
Written by the judges who cited it.
The opinion
ACCEPTED
03-14-00733-CR
4011057
THIRD COURT OF APPEALS
AUSTIN, TEXAS
2/3/2015 11:53:49 PM
JEFFREY D. KYLE
CLERK
No Oral Argument Requested
No. 03-14-00733-CR FILED IN
3rd COURT OF APPEALS
(Should be –CV) AUSTIN, TEXAS
2/4/2015 9:56:49 AM
JEFFREY D. KYLE
In The Clerk
COURT OF APPEALS
THIRD DISTRICT OF TEXAS
WESLEY PERKINS,
Respondent – Appellant,
v.
STATE OF TEXAS,
Plaintiff – Appellee.
(Brief Due: Extension to Feb. 3, 2015)
On Direct Appeal from the
COUNTY COURT AT LAW NO. 3
OF TRAVIS COUNTY, TEXAS
Trial Cause No. C-1-CR-13-200882
STATE v. PERKINS (should be CV)
PERKINS’S PRINCIPAL BRIEF
WES PERKINS
11900 Metric Blvd. Apt. J-179
Austin, TX 78758
Identity of Parties and Counsel
Appellant Appellee
WESLEY EUGENE PERKINS STATE OF TEXAS
11900 Metric Blvd. Apt. J-179 By: TRAVIS COUNTY’s COUNTY
Austin, TX 78758 ATTORNEY’s Office
DAVID ESCAMILLA
P.O. Box 1748
Austin, TX 78767
Assertion of Rights
PERKINS asserts all his unalienable rights, privileges, and immunities at
Natural Law, Common Law, and Maritime Law, and all his commercial rights
relevant to “this state.”
Objection to Non-judicial Decision-making
PERKINS objects to and does not consent to any assignment or any referral
of this case, in any part, to any decision-maker other than a duly elected or
properly appointed judicial officer exercising full authority of an appellate court
justice and who has an active and current oath of office on file. Cf. Gonzalez (“If
the parties consent”) (construing 28 U.S.C. § 636(b)).
Objection to use of private law
PERKINS objects to the use of unpublished cases. A cite to “WL” or
“Lexis” is a reference to materials not publicly accessible. For such references
even to begin to be meaningful, a full copy of the opinion for each “WL” or
Appellant’s Principal Brief (PERKINS) ii
No Notice. No commercial nexus.
“Lexis” reference must be attached.
Concerning the Transcripts
A minor matter. The “Master Index” (Vol. 1 of 6) is styled WESLEY
PERKINS v. STATE OF TEXAS for the trial court case style. Of course, that
should read STATE v. PERKINS, as is found in Vols. 2 to 6 (of 6).
Record References
R.page for the Clerk’s Record; x.Tr.page(lines) for Transcripts, where x may
be 1 to 6; x.Supp.Tr.page for Transcripts filed in the interlocutory appeal, where x
may be 1 to 3. All page references are to the .pdf file page.
Transcript Errata
Regarding 4.Tr.11(6), there’s a “not” that’s missing. “And I do [not] waive
service of State’s original pleadings.”
Regarding 4.Tr.30(13), “bay” is likely originally “way.” “Q. You indicated
that Mr. Perkins said over the phone that he was on his [w]ay?”
Regarding 4.Tr.66(16), there’s a “not” that’s missing. 6.Tr.90 (2d line from
bottom). (13) “In other words, an operator is the party (14) behind the wheel of a
conveyance being used for (15) transportation purposes, whether it has a motor or
(16) otherwise. If you find that Mr. Perkins was [not] engaged in (17) any
transportation activity, for example, getting paid (18) to take someone or
someone’s property from one place to (19) another, then you must conclude that he
Appellant’s Principal Brief (PERKINS) iii
No Notice. No commercial nexus.
was not an (2) operator for any purposes in this matter.” (emphasis added).
Regarding 4.Tr.105(14), there’s a “not” that’s missing. (8) Q. Your whole
position today was that nobody here (9) has a proper authority to charge you with a
criminal (10) offense of driving while license invalid without (11) financial
responsibility. Right?
(12) A. I’m not here to argue with the supreme court of [on?] what
transportation is.
(13) Q. You’re [not?] here to argue with the supreme court?
(14) A. I’m here to assert what I found.
Appellant’s Principal Brief (PERKINS) iv
No Notice. No commercial nexus.
Table of Contents
PERKINS’S PRINCIPAL BRIEF..................................................................... i
Identity of Parties and Counsel ..................................................................... ii
Assertion of Rights ........................................................................................ ii
Objection to Non-judicial Decision-making ................................................... ii
Objection to use of private law ...................................................................... ii
Concerning the Transcripts ...........................................................................iii
Record References........................................................................................iii
Transcript Errata............................................................................................iii
Index of Authorities.......................................................................................xii
Statement of the Case................................................................................xvii
Nature of the Case......................................................................................... xvii
Course of Proceedings................................................................................... xvii
Trial court disposition ..................................................................................... xx
No Oral Argument Requested..................................................................... xx
Issues Presented.........................................................................................xxi
Statement of Facts ........................................................................................ 1
On the street ...................................................................................................... 1
No Subject Matter Jurisdiction and related matters ........................................... 1
No evidence – Standing................................................................................ 1
Burden-relieving. ......................................................................................... 2
Nature of claim. ........................................................................................... 2
Appellant’s Principal Brief (PERKINS) v
No Notice. No commercial nexus.
Appointment of standby counsel. ................................................................. 2
“Misdemeanor” Transp. Code charges, generally......................................... 3
No evidence – Capacity................................................................................ 3
Appearance Bond. ........................................................................................ 4
Bond-jacking and “ultimate issues” as “conditions.”.................................... 5
Bond-jacking – No charging instrument; no evidence; no standing. ............. 7
Compelled responsive/defensive pleading. ................................................... 8
No Personal Jurisdiction.................................................................................... 9
Statutory Challenge – Art. 25.04. ................................................................. 9
Burden-relieving. ....................................................................................... 10
Panel-related matters ....................................................................................... 10
Submission of anything to the advisory panel. ........................................... 10
Fair trial – Unfairly biasing the panel. ........................................................ 11
Jury instructions. ........................................................................................ 11
Trial/Evidence................................................................................................. 12
STATE’s Ex. 1........................................................................................... 12
The commercial semantics. ........................................................................ 13
Void Judgment ................................................................................................ 13
No evidence – conviction. .......................................................................... 13
No Notice – what was/is the charge?.......................................................... 13
Illegal sentencing – Probation – “ultimate issue.”....................................... 15
Developing emergency.................................................................................... 15
Appellant’s Principal Brief (PERKINS) vi
No Notice. No commercial nexus.
Summary of the Argument .......................................................................... 17
Argument ..................................................................................................... 18
Overview ...................................................................................................... 18
LIPSCOMBE erred and/or abused discretion continuously. ....................... 18
The professional incompetence factor – why pro ses are pro se.................. 20
STATE is begging for vexatious litigant status........................................... 20
Pre-trial and perpetually factless judgment on the ultimate issue: “driving.”21
Instead of trying a “transportation” matter, LIPSCOMBE, WASHBOURNE,
and CHU unleashed their political attack.................................................... 22
“Civil” from Day One. ............................................................................... 23
PERKINS’s Special Appearance. ............................................................... 23
Vacate the void “judgment.” ...................................................................... 23
No Subject Matter Jurisdiction and related matters ......................................... 26
Statutory Challenges – definitions.............................................................. 26
Issue 1: What does “transportation” mean? .................................................. 26
“No evidence” standard.............................................................................. 30
Issue 2: What does “vehicle” mean?............................................................. 31
Issue 3: What does “motor vehicle” mean? .................................................. 32
Issue 4: What does “drive” mean?................................................................ 33
Issue 5: What does “operate” mean? ............................................................ 36
Issue 6: What does “this state” mean? .......................................................... 37
Appellant’s Principal Brief (PERKINS) vii
No Notice. No commercial nexus.
No evidence – Standing.............................................................................. 38
Issue 7: Did STATE ever prove standing, i.e., “transportation?”.................. 38
Burden-relieving. ....................................................................................... 39
Issue 8: Did LIPSCOMBE relieve STATE of its evidentiary burden?.......... 39
Use of irrebuttable presumptions violates Due Process. ............................. 40
Nature of claim. ......................................................................................... 41
Issue 9: Did STATE ever have a “criminal” case? ....................................... 41
Appointment of standby counsel. ............................................................... 42
Issue 10: May standby counsel be appointed for this “civil” matter?............ 42
Statutory Challenge – Transp. Code charges, generally.............................. 45
Issue 11: May STATE ever charge any alleged Transp. Code violation as a
misdemeanor? .............................................................................. 45
What is the proper offense level? ............................................................... 45
What is the proper charging instrument? .................................................... 48
No waiver of Indictment............................................................................. 48
No evidence – Capacity.............................................................................. 48
Issue 12: Did STATE ever prove PERKINS liable in the capacity charged? 48
Appellant’s Principal Brief (PERKINS) viii
No Notice. No commercial nexus.
Appearance Bond. ...................................................................................... 49
Issue 13: Did LIPSCOMBE actually add conditions to PERKINS’s
Appearance Bond? ....................................................................... 49
Issue 14: Did LIPSCOMBE err (or abuse discretion) by adding any
conditions to PERKINS’s Appearance Bond? .............................. 51
Issue 15: Did LIPSCOMBE err (or abuse discretion) by adding “ultimate
issue” conditions to PERKINS’s Appearance Bond?.................... 51
No evidence – Bond-jacking. ..................................................................... 53
Issue 16: Did LIPSCOMBE err (or abuse discretion) by compelling
PERKINS to post more Bond? ..................................................... 53
Compelled responsive/defensive pleading. ................................................. 53
Issue 17: Did LIPSCOMBE err (or abuse discretion) by entering a responsive
plea of any nature for PERKINS?................................................. 53
Statutory Challenge – Art. 25.04. ............................................................... 55
Issue 18: Does Art. 25.04 facially violate Due Process?............................... 55
Art. 25.04. ............................................................................................. 55
Burden-relieving. ....................................................................................... 57
Issue 19: Did LIPSCOMBE relieve STATE of its procedural burden?......... 57
Panel-related matters ....................................................................................... 58
Issue 20: Did LIPSCOMBE err (or abuse discretion) by sending the matter to
the panel at all?............................................................................. 58
Appellant’s Principal Brief (PERKINS) ix
No Notice. No commercial nexus.
Fair trial – Unfairly biasing the panel. ........................................................ 62
Issue 21: Did LIPSCOMBE unfairly bias the panel with his errant legal
argument about what “transportation” means?.............................. 62
Issue 22: Did LIPSCOMBE unfairly bias the jury with this opening remarks
about transportation licensure mixed with insurance?................... 64
Issue 23: Did LIPSCOMBE unfairly bias the panel with his errant legal
argument during PERKINS’s case-in-chief?................................. 65
Jury instructions. ........................................................................................ 66
Issue 24: Did LIPSCOMBE err (or abuse discretion) by failing to define
“transportation” for the panel?...................................................... 66
Issue 25: Did LIPSCOMBE err (or abuse discretion) by failing to define
“drive,” “operate,” and “vehicle” for the panel? ........................... 67
Issue 26: Did LIPSCOMBE err (or abuse discretion) by failing to explain the
algebraic connection between “transportation” and the key
commercial, semantic terms of legal conclusion? ......................... 68
Issue 27: Did LIPSCOMBE err (or abuse discretion) by failing to include any
of PERKINS’s proposed Instructions?.......................................... 70
Trial/Evidence................................................................................................. 71
Issue 28: Did LIPSCOMBE err (or abuse discretion) by admitting STATE’s
Ex. 1? ........................................................................................... 71
Issue 29: Did LIPSCOMBE err (or abuse discretion) by overruling
PERKINS’s objections to the commercial semantics? .................. 72
Appellant’s Principal Brief (PERKINS) x
No Notice. No commercial nexus.
No evidence – conviction. .......................................................................... 73
Issue 30: Did LIPSCOMBE err (or abuse discretion) by accepting the
advisory panel’s recommendation on guilt?.................................. 73
Illegal sentencing – Probation – “ultimate issue.”....................................... 74
Issue 31: Did LIPSCOMBE err (or abuse discretion) by adding “ultimate
issue” conditions on probation? .................................................... 74
Request for Relief........................................................................................ 75
Certificate of Service ................................................................................... 76
Certificate of Compliance ............................................................................ 76
Appendix Contents ...................................................................................... 77
Mandatory ...................................................................................................... 77
Optional ...................................................................................................... 77
Appellant’s Principal Brief (PERKINS) xi
No Notice. No commercial nexus.
Index of Authorities
Cases
Aguilar v. State, 846 S.W.2d 313 (Tex. Crim. App. 1993). .................................. 55
Alalunga Sport Fishers, Inc. v. County of San Diego, 247 Cal. App. 2d 663 (Cal.
App. 4th Dist. 1967)........................................................................................ 29
Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986).......................................... 39
Armstrong v. Manzo, 380 U.S. 545 (1965). .......................................................... 56
Arnold v. United States, 544 U.S. 1058 (May 31, 2005). ...................................... 54
Austin v. New Hampshire, 420 U.S. 656, 668 (1975) (Blackmun, J., dissent)....... 41
Ballard v. Comm’r, 544 U.S. 40 (2005)................................................................ 53
Bates v. State Bar of Arizona, 433 U.S. 350 (1977). ............................................. 54
Bearden v. United States, 320 F.2d 99 (5th Cir. 1963). ........................................ 28
Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547 (Tex. 2000). ............................... 73
Brown v. State, 122 S.W.3d 794, 799 (Tex. Crim. App. 2003). ............................ 40
Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985). ................................. 53, 72
Burns v. United States, 501 U.S. 129 (1991). ....................................................... 56
Casias v. State, 503 S.W.2d 262 (Tex. Crim. App. 1973)..................................... 45
Chicago, R. I. & G. Ry. Co. v. Cosio, 182 S.W. 83 (Tex. Civ. App. – Amarillo
1916, no writ).................................................................................................. 27
City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005).................................... 30, 61
Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632 (1974)...................................... 40
Columbia Rio Grande Healthcare, L.P. v. Hawley, 284 S.W.3d 851 (Tex. 2009).
.................................................................................................................. 62, 63
Connecticut v. Johnson, 460 U.S. 73 (1983)........................................................ 40
Cornell Steamboat Co. v. United States, 321 U.S. 634, 641 (1944) (Frankfurter, J.,
dissent)............................................................................................................ 27
County Court of Ulster County v. Allen, 442 U.S. 140 (1979). ............................. 40
Cuellar v. United States, 553 U.S. 550 (2008)...................................................... 29
Deposit Guaranty Nat’l Bank v. Roper, 445 U.S. 326, 344 (1980) (Powell, J., and
Stewart, J., dissent).......................................................................................... 41
Dragich v. County of Los Angeles, 30 Cal.App.2d 397, 86 P.2d 669 (Cal. App.
1939)............................................................................................................... 29
Appellant’s Principal Brief (PERKINS) xii
No Notice. No commercial nexus.
Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71 (Tex. 2000). .................................... 45
Elkins v. Moreno, 435 U.S. 647 (1978). ............................................................... 40
Escobedo v. Illinois, 378 U.S. 478 (1964). ........................................................... 54
Ex parte Anderer, 61 S.W.3d 398 (Tex. Crim. App. 2001)............................. 51, 52
Ex parte Padron, 565 S.W.2d 921 (Tex. 1978). ................................................... 50
Fed. Underwriters Exch. v. Pugh, 141 Tex. 539, 174 S.W.2d 598 (1943). ........... 45
Garcia v. Dial, 596 S.W.2d 524 (Tex. Crim. App. 1980). .................................... 45
Gideon v. Wainright, 372 U.S. 335 (1963). .......................................................... 43
Gonzalez v. United States, 553 U.S. 242 (May 12, 2008). ................................ ii, 54
Griswold v. Connecticut, 381 U.S. 479, 85 S. Ct. 1678 (1965)............................. 75
Hall v. State, 661 S.W.3d 101 (Tex. Crim. App. 1983). ....................................... 40
Hammell v. State, 198 Ind. 45 (Ind. 1926). ........................................................... 29
Heiner v. Donnan, 285 U.S. 312 (1932). .............................................................. 40
Hicks v. Pilgrim Poultry, G.P., 299 S.W.3d 249 (Tex. App.—Texarkana 2009, no
writ). ............................................................................................................... 61
Ieppert v. State, 908 S.W.2d 217 (Tex. Crim. App. 1995). ................................... 45
In re Fountain, 433 S.W.3d 1, 10, (Tex. App. – Houston [1st Dist.] 2012, no writ)
(dissent KEYES, J.)......................................................................................... 50
In re Winship, 397 U.S. 358 (1970). ..................................................................... 40
La.-Pac. Corp. v. Knighten, 976 S.W.2d 674 (Tex. 1998). ................................... 62
Leary v. United States, 395 U.S. 6 (1969). ........................................................... 40
Lloyd v. Alexander, 5 U.S. (1 Cranch) 365 (1803)................................................ 56
Lozman v. City of Riviera Beach, 133 S. Ct. 735 (2013)...........................................
......................................................................... 11, 16, 27, 29, 31, 39, 53, 67, 74
Mapco, Inc. v. Forrest, 795 S.W.2d 700 (Tex. 1990) (orig. proc.)........................ 73
Marshall v. Buntings’ Nurseries, Inc., 459 F. Supp. 92 (D. Md. 1978)................. 29
Maynard v. Texas, 249 S.W. 473 (Tex. Crim. App. 1923).................................... 27
Michiana Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d 777 (Tex. 2005)........ 59
Michigan v. United States Army Corps of Eng’rs, 911 F. Supp. 2d 739 (N.D. Ill.
2012)............................................................................................................... 29
Miller v. Woods, 872 S.W.2d 343 (Tex. App. – Beaumont 1994, orig. proc.)....... 73
Miranda v. Arizona, 384 U.S. 436 (1966)............................................................. 54
Appellant’s Principal Brief (PERKINS) xiii
No Notice. No commercial nexus.
Mullaney v. Wilbur, 421 U.S. 684 (1975). ............................................................ 40
Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344 (1999)............ 56
Murray v. State, 302 S.W.3d 874 (Tex. Crim. App. 2009). .................................. 45
National Federation of Independent Businesses v. Sebelius, 132 S. Ct. 2556 (2012)
(NFIB)............................................................................................................ 74
Ohralik v. Ohio State Bar Assn., 436 U.S. 447 (1978).......................................... 54
Pennock v. State, 725 S.W.2d 414 (Tex. App. – Houston [1st Dist.] 1987, no pet).
........................................................................................................................ 40
People v. Lacross, 91 Cal. App. 4th 182 (Cal. App. 3d Dist. 2001)...................... 29
Pollock v. Farmers' Loan & Trust Co., 157 U.S. 429 (1895) (Pollock I).............. 54
Prairie View A&M Univ. v. Brooks, 180 S.W.3d 694 (Tex. App.—Houston [14th
Dist.] 2005, no writ). ....................................................................................... 61
Rockwell Int’l Corp. v. United States, 549 U.S. 457 (2007).................................. 41
Rothgery v. Gillespie County, Texas, 554 U.S. 191 (2008). .................................. 42
Sacramento Navigation Co. v. Salz, 273 U.S. 326 (1927). ................................... 28
Sandstrom v. Montana, 442 U.S. 510 (1979).................................................. 39, 40
Scott v. Harris, 550 U.S. 372 (2007). ................................................................... 39
Smith v. O’Grady, 312 U.S. 329 (1941)................................................................ 56
St. Clair Cnty v. Interstate Sand & Car Transfer Co., 192 U.S. 454 (1904). ........ 27
Stanley v. Illinois, 405 U.S. 645 (1972). ............................................................... 40
State v. Chacon, 273 S.W.3d 375 (Tex. App. – San Antonio 2008, no pet.)... 46, 47
State v. Dunbar, 297 S.W.3d 777 (Tex. Crim. App. 2009)................................... 45
State v. Heilman, 413 S.W.3d 503 (Tex. App. – Beaumont 2013, pet. granted).... 45
Tex. Dept. of Parks & Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004).................
.......................................................................................................39, 45, 59, 60
Tot v. United States, 319 U.S. 463 (1942). ........................................................... 40
United States v. Booker, 543 U.S. 220 (2005). ..................................................... 54
United States v. Diebold, 369 U.S. 654 (1962). .................................................... 39
United States v. Hinton, 222 F.3d 664 (9th Cir. 2000). ....................................... 28
Vlandis v. Kline, 412 U.S. 441 (1973). ................................................................. 40
Weinberger v. Salfi, 422 U.S. 749 (1975)............................................................. 40
Wesbrook v. State, 29 S.W.3d 103 (Tex. Crim. App. 2000).................................. 61
Appellant’s Principal Brief (PERKINS) xiv
No Notice. No commercial nexus.
Williams v. Vermont, 472 U.S. 14, 28 (1985) (dissent). ........................................ 41
Statutes
28 U.S.C. § 636(a), (c). ........................................................................................ 54
28 U.S.C. § 636(b). .............................................................................................. 54
49 U.S.C. § 902(i)(1)............................................................................................ 27
TEX. PENAL CODE § 32.43. ............................................................................... 3, 46
TEX. PENAL CODE ANN. § 46.15(b)(3). ................................................................. 29
TEX. TRANSP. CODE ANN. § 24.013(f)(2) (Thomson/West 2011). ........................ 36
TEX. TRANSP. CODE ANN. § 501.002(14).............................................................. 32
TEX. TRANSP. CODE ANN. § 502.001(13).............................................................. 32
TEX. TRANSP. CODE ANN. § 502.001(24).............................................................. 31
TEX. TRANSP. CODE ANN. § 522.003(11).............................................................. 33
TEX. TRANSP. CODE ANN. § 522.003(21).............................................................. 32
TEX. TRANSP. CODE ANN. § 541.001(1). .............................................................. 36
TEX. TRANSP. CODE ANN. § 541.201(11).............................................................. 32
TEX. TRANSP. CODE ANN. § 541.201(23).............................................................. 31
TEX. TRANSP. CODE ANN. § 601.002(5). .............................................................. 32
TEX. TRANSP. CODE ANN. § 601.002(8). .............................................................. 36
TEX. TRANSP. CODE ANN. § 621.001(9). .............................................................. 31
TEX. TRANSP. CODE ANN. § 642.001(1). .............................................................. 32
TEX. TRANSP. CODE ANN. § 642.001(2). .............................................................. 36
TEX. TRANSP. CODE ANN. § 647.001(4). .............................................................. 32
TEX. TRANSP. CODE ANN. § 647.001(5). .............................................................. 36
TEX. TRANSP. CODE ANN. § 683.001(4). .............................................................. 32
TEX. TRANSP. CODE ANN. § 724.001(11).............................................................. 36
TEX. TRANSP. CODE ANN. § 728.001(2). .............................................................. 32
TEX. TRANSP. CODE ANN. § 750.003(a)................................................................ 31
Appellant’s Principal Brief (PERKINS) xv
No Notice. No commercial nexus.
Rules of Criminal Procedure
TEX. CODE CRIM. PROC. ANN. art. 1.05. (“Art. ___”). .......................................... 42
Art. 1.051. ............................................................................................................ 43
Art. 1.14. .............................................................................................................. 43
Art. 12.02. ............................................................................................................ 45
Art. 15.17. ............................................................................................................ 43
Art. 24.01(b)(2). ................................................................................................... 57
Art. 24.01(c)......................................................................................................... 57
Art. 25.04. ........................................................................... 9, 10, 17, 23, 25, 55, 75
Art. 42.15. ............................................................................................................ 42
Rules of Civil Procedure
FED. R. CIV. P. 8(c). ............................................................................................. 53
TEX. R. CIV. P. 15. ............................................................................................... 58
TEX. R. CIV. P. 16. ............................................................................................... 58
TEX. R. CIV. P. 17. ............................................................................................... 58
TEX. R. CIV. P. 21a. ............................................................................................. 58
TEX. R. CIV. P. 21b. ............................................................................................. 58
TEX. R. CIV. P. 94. ............................................................................................... 53
TEX. R. CIV. P. 103. ....................................................................................... 57, 58
TEX. RS. CIV. P. 99-107. ................................................................................ 48, 58
Treatises
1 PAGE, THE LAW OF WILLS, §§ 5.7, 15.11 (rev. 2003)......................................... 54
AMY MORRIS HESS, GEORGE GLEASON BOGERT & GEORGE TAYLOR BOGERT, THE
LAW OF TRUSTS AND TRUSTEES § __ (Supp. 2011) (“BOGERT § ”)
BOGERT § 42 (rev. 2d ed. 1984 & Supp. 2011). .............................................. 49, 54
BOGERT § 44 (rev. 2d ed. 1984 & Supp. 2011). .............................................. 49, 54
Appellant’s Principal Brief (PERKINS) xvi
No Notice. No commercial nexus.
Statement of the Case
Nature of the Case
“Civil” non-case arising from “transportation” code enforcement.
Course of Proceedings
Arrest.
STATE. Information, R.13, and Complaint, R.14, filed but never Served.
PERKINS. Special Appearance and Plea to the Jurisdiction. R.19-68.
PERKINS. Discovery. R.15-18. 1
PERKINS. Continuance request from June 5 setting. R.72-75; R.77-80 (redo
for the date issue on first notarization); R.81 (reset for Aug. 28).
PERKINS. Request for TBC. R.82-85. (Effectively denied).
PERKINS. Motion in Limine. R.86-107 (Jun. 28).
Case reset from Aug. 28 to Dec. 4, 2013.
STATE. Bond-jacking episode. On date of trial, and instead of trial, STATE
sandbagged, blindsided PERKINS on Bond issue for an alleged act of “driving”
during pendency of this first matter. Enforcement of “ultimate issue” 2 (What is
“driving?”) without and prior to resolution of that ultimate issue. All
presumptions, e.g., jurisdiction, standing, evidence, went against PERKINS.
1
Clerical sequencing gets “convenient” in a couple of places.
2
See p.5. See also n.7.
Appellant’s Principal Brief (PERKINS) xvii
No Notice. No commercial nexus.
PERKINS jailed, again. Bond jacked from $2,000 to $9,500. E.g., R.146-47. No
Notice. No meaningful opportunity to respond.
STATE’s Motion to Revoke is filestamped Dec. 9. R.116-17. The court’s
order date is Dec. 4. R.118. 3
PERKINS. Interlocutory appeal of effective denial of Special Appearance
via Bond-jacking. R.119-37. Motion for Stay. R.141-44.
Appellate court. No relief (offered/extended to the trial court), and that via
unrecognizable/unenforceable “order.” R.162-67.
Trial reset to May, 2014.
Trial reset to Aug., 2014. See also 2.Tr, generally.
STATE’s Supreme Court. No. 14-0366. “No jurisdiction.” 4 R.176-79 (post
cards don’t include the ruling).
PERKINS. Trial Brief in wake of “No jurisdiction” ruling in No. 14-0366.
Trial.
Regarding any “plea,” PERKINS never entered one. 4.Tr.11(1-16). He never
had Notice of any pleading by STATE so as to respond in kind. Thus, R.184 is
just plain wrong where it “recites” that “Defendant had pleaded not guilty.”
3
“Convenient” clerical sequencing. R.116-18.
4
Further study confirmed that this had nothing to do with the “civil v. criminal”
character issue but rather solely with the statutory limit on the Court regarding
interlocutory appeals. Mandamus exists to protect appellate jurisdiction. So, where
there’s no appellate jurisdiction, it follows there won’t be any mandamus, either.
Appellant’s Principal Brief (PERKINS) xviii
No Notice. No commercial nexus.
PERKINS never did any such thing. R.195 is also just plain wrong where it
“recites” that PERKINS pled “not Guilty.” LIPSCOMBE pled not guilty, not
PERKINS. 4.Tr.11(1-16). R.240 is also just plain wrong where the “NC” box is
checked as a “plea.” PERKINS never pled, much less “No Contest.”
PERKINS. Motion in Limine – Denied. 3.Tr.13(19-20).
STATE proved up nothing about “transportation.” PERKINS affirmatively
negated “transportation” in all respects. All of PERKINS’s trial-time motions were
denied.
Case without evidence submitted to advisory panel, anyway.
The “charge,” which was never Served on PERKINS, morphed from
“driving while license suspended,” R.13, 14, 195, 4.Tr.10 (the language of the
Information), to “driving while license invalid,” R.1, 5, 6, 7, 116, 146, 201, 238,
2.Tr.4, 3.Tr.4(1-3), 3.Tr.16(13-14), 3.Tr.20 (CHU says that “suspended” and
“invalid” are the same thing), 5.Tr.5(23-24), to “DWL INV W/PRV
CAN/SUP/WO FN RE,” whatever that is, R.108-11, R.112-15, R.168-71, R.172-
75, 198 (some translation assistance is found here: “DRIVING W/LIC INV
W/PREV CONV/SUSP/W/O FIN RES” is very likely to mean “driving while
license invalid with previous conviction/suspension without financial
responsibility”), 4.Tr.111(11-13), to “Driving While License Invalid without
Financial Responsibility,” R.184, 189, 4.Tr.88(5-10), 4.Tr.105(8-11), 4.Tr.110(7-
Appellant’s Principal Brief (PERKINS) xix
No Notice. No commercial nexus.
11, 14-15), 4.Tr.114(14) to .115(10), .116(13-15), 4.Tr.132(6-12) (the language of
the trial). 5
Note: Trial date: Aug. 22, 2014. Sentencing date: Aug. 26, 2014.
PERKINS. Motion for New Trial. Sep. 24, 2014. R.202-33.
No ruling as of Nov. 10.
PERKINS. Notice of Appeal. Nov. 17, 2014. R.234-37.
Trial court disposition
Convicted of some morphed hodgepodge having to do with “transportation,”
“licensing,” and “insurance.” Sentenced to probation, which conditions compel
getting a “license” and purchasing “insurance,” the violation of which activates the
panel’s recommendation of 45 days jail and a $2,000 fine.
No Oral Argument Requested
Oral argument is not expected to aid in the resolution of these issues.
5
3.Tr.6(6-8) – “THE COURT [regarding PERKINS’s objection to appointment
of standby counsel]: And they’re [STATE is] charging under statute that has been
passed by the legislature and found valid by the courts.”
That and a couple of bucks (or so) buys coffee at popular coffee houses. The
Transp. Code nowhere applies just because it exists. If the Transp. Code applies,
at all, it’s by commercial consent of the party targeted. That’s not “sovereignty.”
“Sovereignty” asserts political non-consent, a greatly mis-/un-informed position.
Without commercial consent, the Transp. Code is 100% irrelevant to everything.
Appellant’s Principal Brief (PERKINS) xx
No Notice. No commercial nexus.
Issues Presented
No Subject Matter Jurisdiction and related matters
Statutory Challenges – definitions
Issue 1: What does “transportation” mean?
Issue 2: What does “vehicle” mean?
Issue 3: What does “motor vehicle” mean?
Issue 4: What does “drive” mean?
Issue 5: What does “operate” mean?
Issue 6: What does “this state” mean?
No evidence – Standing
Issue 7: Did STATE ever prove standing, i.e., “transportation?”
Burden-relieving
Issue 8: Did LIPSCOMBE relieve STATE of its evidentiary burden?
Nature of claim
Issue 9: Did STATE ever have a “criminal” case?
Appointment of standby counsel
Issue 10: May standby counsel be appointed for this “civil” matter?
Appellant’s Principal Brief (PERKINS) xxi
No Notice. No commercial nexus.
Statutory Challenge – Transp. Code charges, generally
Issue 11: May STATE ever charge any alleged Transp. Code violation as a
misdemeanor?
No evidence – Capacity
Issue 12: Did STATE ever prove PERKINS liable in the capacity charged?
Appearance Bond
Issue 13: Did LIPSCOMBE actually add conditions to PERKINS’s Appearance
Bond?
Issue 14: Did LIPSCOMBE err (or abuse discretion) by adding any conditions
to PERKINS’s Appearance Bond?
Issue 15: Did LIPSCOMBE err (or abuse discretion) by adding “ultimate issue”
conditions to PERKINS’s Appearance Bond?
No evidence – Bond-jacking
Issue 16: Did LIPSCOMBE err (or abuse discretion) by compelling PERKINS
to post more Bond?
(Even if any conditions on Bond were lawfully added, did PERKINS
ever breach them?)
Compelled responsive/defensive pleading
Issue 17: Did LIPSCOMBE err (or abuse discretion) by entering a responsive
plea of any nature for PERKINS?
Appellant’s Principal Brief (PERKINS) xxii
No Notice. No commercial nexus.
No Personal Jurisdiction
Statutory Challenge – Art. 25.04
Issue 18: Does Art. 25.04 facially violate Due Process?
Burden-relieving
Issue 19: Did LIPSCOMBE relieve STATE of its procedural burden?
Panel-related matters
Issue 20: Did LIPSCOMBE err (or abuse discretion) by sending the matter to
the panel at all?
Fair trial – Unfairly biasing the panel
Issue 21: Did LIPSCOMBE unfairly bias the panel with his errant legal
argument about what “transportation” means?
Issue 22: Did LIPSCOMBE unfairly bias the jury with this opening remarks
about transportation licensure mixed with insurance?
Issue 23: Did LIPSCOMBE unfairly bias the panel with his errant legal
argument during PERKINS’s case-in-chief?
Jury instructions
Issue 24: Did LIPSCOMBE err (or abuse discretion) by failing to define
“transportation” for the panel?
Appellant’s Principal Brief (PERKINS) xxiii
No Notice. No commercial nexus.
Issue 25: Did LIPSCOMBE err (or abuse discretion) by failing to define
“drive,” “operate,” and “vehicle” for the panel?
Issue 26: Did LIPSCOMBE err (or abuse discretion) by failing to explain the
algebraic connection between “transportation” and the key
commercial, semantic terms of legal conclusion?
Issue 27: Did LIPSCOMBE err (or abuse discretion) by failing to include any
of PERKINS’s proposed Instructions?
Trial/Evidence
Issue 28: Did LIPSCOMBE err (or abuse discretion) by admitting STATE’s Ex.
1?
Issue 29: Did LIPSCOMBE err (or abuse discretion) by overruling PERKINS’s
objections to the commercial semantics?
Void Judgment
No evidence – conviction
Issue 30: Did LIPSCOMBE err (or abuse discretion) by accepting the advisory
panel’s recommendation on guilt?
Illegal sentencing – Probation – “ultimate issue”
Issue 31: Did LIPSCOMBE err (or abuse discretion) by adding “ultimate issue”
conditions on probation?
Appellant’s Principal Brief (PERKINS) xxiv
No Notice. No commercial nexus.
Statement of Facts
On the street
Austin PD stopped PERKINS’s wife for speeding. 4.Tr.22(10) to .23(5).
That led to the phone call to PERKINS, 4.Tr.27(2) to .28(2), who showed up at the
scene. 4.Tr.30(15-16).
Austin PD arrested PERKINS on outstanding warrants arising from prior
“transportation” matters. 4.Tr.34(6-18), .35(6) to .38(20). They also arrested him
for the matter at bar. 4.Tr.38(21) to .39(12).
At no time did any officer even make inquiry into any passenger manifest,
bill of lading, or hire. 4.Tr.39(20) to .41(7).
No Subject Matter Jurisdiction and related matters
No evidence – Standing.
At no time was PERKINS (1) removing anyone or anything (2) from one
place to another (3) for hire (4) in “this state.” Whole Record; R.66-67; R.134-35;
4.Tr.49(7) to .51(4). At no time has PERKINS consented to being in
“transportation.” 2.Supp.Tr.11(8) to .13(1); 4.Tr.30(18) to .31(4); .31(8-21);
.32(10-17); .45(25) to .46(10); .84(18) to .85(14); .103(14-18); .105(22-25); R.19
(Spec. Appear.); Record on appeal for interlocutory appeal; R.86 (Mot. in Limine);
R.180 (Trial Brief after interlocutory appeal); R.202 (Mot. for New Tr.); 6.Tr.27 to
Appellant’s Principal Brief (PERKINS) 1
No Notice. No commercial nexus.
.76. See also 6.Tr.77 to .115.
STATE boldly marched through the entire trial process without any
evidence of “transportation:” no passenger manifest, bill of lading, or hire. Whole
Record; 4.Tr.39(20) to .41(7), .49(7) to .51(4).
Burden-relieving.
Strangely, but clearly, STATE didn’t think it necessary to prove
“transportation” for a Transp.-Code-based matter. Even more clearly,
LIPSCOMBE didn’t, either. See, e.g., 3.Tr.7(11) to .8(20); 4.Tr.139(7-14).
Nature of claim.
STATE never intended to prove standing, and STATE succeeded by
completely failing to prove standing. Whole Record; 4.Tr.39(20) to .41(7); .49(7)
to .51(4). STATE tendered no evidence of any commercial nexus, thus of any
breach, i.e., of any “actual grievance” or “injury in fact.” Id.
Procedurally, one consequence is the resulting nature of STATE’s claim.
Where STATE has no standing for a “criminal” matter, cf., e.g., 2.Tr.4(19-22),
3.Tr.10(13) to .11(20), it’s a non-case, which matters are “civil” in nature.
Appointment of standby counsel.
In this “civil” matter, LIPSCOMBE appointed standby counsel over
Appellant’s Principal Brief (PERKINS) 2
No Notice. No commercial nexus.
PERKINS’s objection. R.6, 12, 200; 3.Tr.4(9) to .6(25); .11(21) to .12(18).
Moreover, PERKINS is not indigent. R.6, 9, 10, 116-18, 146, 147, 199, 3.Tr.4(9-
16), 12(3-10). But see R.200.
“Misdemeanor” Transp. Code charges, generally.
The legal mechanism undergirding the Transp. Code is that of alleged
breach of fiduciary duty. That’s the only type of commercial breach for which
“criminal” enforcement is even possible. Cf. TEX. PENAL CODE § 32.43 with
STATE’s and the national Debt Collection Practices Acts.
STATE’s legislature has established that “criminal” breach of fiduciary duty
is a state jail felony. TEX. PENAL CODE § 32.43. That raises the very fundamental
question as to misdemeanor charges and county court jurisdiction, generally. Even
if such “agreement between the parties,” say, via a Transp. Code provision, existed,
and it doesn’t exist here, but if it did, could such “agreement” alter the established
punishment level?
No evidence – Capacity.
By STATE’s very same complete and intentional failure even to try to prove
“transportation,” i.e., standing, Whole Record, 4.Tr.39(20) to .41(7), .49(7) to
.51(4), STATE also tendered no evidence that PERKINS was ever acting in any
relevant fiduciary capacity at any time relevant to this matter.
Appellant’s Principal Brief (PERKINS) 3
No Notice. No commercial nexus.
Appearance Bond.
This list intends to be exhaustive regarding Appearance Bond. R.6, 6 9, 10,
116-18, 119-37, 138-40, 141-44, 145, 146, 147, 148-61, 162-63, 164, 165, 166-67,
176-79, 180-83, 199, 200, 234-37 (236), 238 (no (additional) appeal Bond
required), 240; 4.Tr.103(22) to .104(8); 4.Tr.107(10-17); 4.Tr.113(19) to .114(8);
4.Tr.133(25) to .134(15); 1.Supp.Tr (all); 2.Supp.Tr (all); 3.Supp.Tr (all).
LIPSCOMBE and STATE (WASHBOURNE) Bond-jacked PERKINS,
1.Supp.Tr (all), 2.Supp.Tr (all), 2.Supp.Tr.14(17) to .15, 3.Supp.Tr (all), in part
based on the notion that LIPSCOMBE had somewhere added “no driving” as a
condition to PERKINS’s appearance Bond. 2.Supp.Tr.13(11-17) (context
continues to .14(17)). To review that exhaustive list is to see that there’s not one
word in any order prior to Bond-jacking about any such provision. If “driving”
includes “travel,” it’s extremely material that there’s no evidence of any Notice to
PERKINS about any such added condition on any Appearance Bond. STATE’s
motion mentions nothing about any such Bond condition. R.116-17.
Going the other way, material is the absence of an affirmative assertion of
something like, “I’ve never heard that before.” So, even if we presume something
was mentioned, there’s still no written, signed, and filed, or otherwise documented,
6
R.7-8 wasn’t offered or subjected to cross-examination. Reference to any of it
here isn’t with any intent to bring it in now. It isn’t consented to. For academic
completeness only, R.8 mentions Bond.
Appellant’s Principal Brief (PERKINS) 4
No Notice. No commercial nexus.
order adding any such condition to any version or form of Appearance Bond.
In the Bond-jacking episode, R.116-18, 1.Supp.Tr., 2.Supp.Tr., and
3.Supp.Tr (all), STATE tried PERKINS for a “criminal” offense (A) without even
filing, much less serving, a competent charging Instrument, (B) without Notice, (C)
without an advisory panel, and (D) without producing a “final order” subject to
immediate appellate review.
Bond-jacking and “ultimate issues” as “conditions.”
Looking at the whole of the Bond-jacking episode, 1.Supp.Tr, 2.Supp.Tr,
3.Supp.Tr, R.118, R.116-17, it documents the epitome of what happens when
“ultimate issues” are made “conditions” processed in contexts completely stripped
off all remote association with Due Process. Getting to the core, even if
LIPSCOMBE could and did add conditions to PERKINS’s Appearance Bond,
there’s still the question of whether pre-trial or post-conviction Bond conditions
may include “ultimate issue” matters. Here’s the problem, which shows up again
in the Probation conditions, where an “ultimate issue” is a condition of Bond,
Probation, etc. For this Bond-jacking episode, STATE alleged a criminal offense
of “driving” without a “license.” 2.Supp.Tr.6(22-25); R.116-17.
Bond condition or independently from Bond, where that intends to be a
“criminal” charge, 2.Supp.Tr.7(22-25), we have this. There was no charging
Appellant’s Principal Brief (PERKINS) 5
No Notice. No commercial nexus.
instrument even filed, which, as raised, supra, would have to be a Grand Jury
Indictment, much less served. There was no Notice of any type. STATE and
LIPSCOMBE, clearly already pursing their political vendetta against “sovereignty”
using PERKINS as a whipping boy, blind-sided and sand-bagged PERKINS.
2.Supp.Tr (all). There was, then, no time to prepare a defense. There was no
advisory panel. Id. There was no meaningful access to direct, immediate appellate
review. See Interlocutory Appeal. Yet, STATE “charged” PERKINS “criminally;”
LIPSCOMBE “tried” PERKINS, under a presumption of “guilt;” LIPSCOMBE
“found” PERKINS “guilty;” LIPSCOMBE “punished” PERKINS, including
allowing another arrest; and PERKINS has no direct access to an appellate court to
review that “conviction.” All of that under the cloak, of course, of a matter over
which LIPSCOMBE never had subject matter jurisdiction in the first place.
Where that intends to be a “civil” breach claim, we have this. There was
no motion/petition filed, much less served. There’s no Notice of any type. STATE
and LIPSCOMBE blind-sided and sand-bagged PERKINS. There was, then, no
time to prepare a response. There was no option for civil advisory panel
participation. There was no meaningful access to direct, immediate appellate
review. Yet, STATE alleged breach; LIPSCOMBE “heard” the claim;
LIPSCOMBE “found” PERKINS “liable,” including use of irrebuttable
presumptions; LIPSCOMBE “judged” PERKINS, including allowing another
Appellant’s Principal Brief (PERKINS) 6
No Notice. No commercial nexus.
arrest (over a civil breach issue); and PERKINS had no “final judgment” for
appellate review. All that occurred in the context of a matter for which
LIPSCOMBE never had jurisdiction to begin with.
Consistent with the present “thinking” about how to handle alleged “breach
of condition” claims, the Bond-jacking proceeding was completely stripped any
and all notions of Due Process. Why is PERKINS under Bond, at all, in the first
place? Because STATE charged him “criminally” for that very same concept.
Then, under a Bond-condition pretext, STATE pursued that exact same claim, that
exact … same … claim …, but to a “preponderance” standard, not a “reasonable
doubt” standard, i.e., “civilly,” pre-trial, under procedural conditions presently
“approved” for a post-conviction setting, but which are in no way valid in the pre-
trial stage, where all the presumptions still favor the defense.
Bond-jacking – No charging instrument; no evidence; no standing.
1., 2., and 3.Supp.Tr. (all). Even if any conditions on Bond were lawfully
added and Notice to PERKINS supplied (or waived via no clear objection of
Record), 7 did PERKINS ever breach that condition? Regarding the sandbagging
7
No waiver works against PERKINS, here. Where STATE intends to prove
violation of Bond via some “criminal” offense or other, LET STATE TRY TO
PROVE UP THAT ALLEGED CRIME IN THE NORMAL COURSE. That means
STATE need(s)(ed) a charging instrument (and standing, etc.) to establish any
remote semblance of jurisdiction, and there isn’t one.
Appellant’s Principal Brief (PERKINS) 7
No Notice. No commercial nexus.
“trial” of the “claim within the claim,” STATE never even filed a competent
charging instrument, much less served one. More over, as usual, STATE never
even intended to prove “transportation,” at which failure STATE succeeded
masterfully. One more time, PERKINS at no time relevant to this entire matter,
including this particular Bond-jacking episode, removed anyone or anything from
one place to another for hire in “this state.” Id. (no evidence).
Compelled responsive/defensive pleading.
PERKINS is, of course, fully aware of procedural concepts that purport to
impose on a trial court a duty to enter a responsive plea where the defendant
declines/refuses to do so.
However, there are conditions precedent to the exercise of jurisdiction for
that phase of what intends to be a “criminal” proceeding. Key conditions precedent
Commentary. Such “Bond-violation or -adjustment due to criminal activity”
claim must compel STATE to charge and sue out the alleged crime. This notion
of, “We think there’s a crime here, so let’s set up an instant trial and violate every
remote concept of Due Process (for which hundreds of thousands of Americans
have given their lives in order to preserve), and then deprive the target of both
liberty and property in the face of “no evidence,” is, in and of itself, a whole series
of criminal offenses, see 18 U.S.C. §§ 241, 242 (blatant violation of all kinds of
very long-established, Due-Process-related rights). And, that’s the up side; that’s
even if STATE had a claim, which they didn’t, here. “Immunity?” For a “civil”
matter?? Doesn’t exist. They’re just so cock and bull sure that they understand the
law that they’ve defied it, even criminally violated it. They may still wonder why
“Alice in Wonderland” was written. By their habitual, lawless tyranny, they pour
train-car loads of fuel on the “sovereignty” movement’s fire, as well as compel
more prudent study, such as what PERKINS has engaged.
Appellant’s Principal Brief (PERKINS) 8
No Notice. No commercial nexus.
are both subject matter jurisdiction and personal jurisdiction.
Here, PERKINS very plainly raised challenges to all jurisdiction per his
Special Appearance and Plea to the Jurisdiction, and his interlocutory appeal in
support of those challenges. R.19-68, 69-71, 86-107; R.116-18, 2.Supp.Tr (all);
R.119-37, 138-44, 148-61 (orig. in appellate Record), 176-79, 180-83.
LIPSCOMBE never heard evidence on the jurisdictional facts. Moreover,
LIPSCOMBE confirmed that he was fully aware that STATE had never served
PERKINS with any original pleading. See, e.g., 3.Tr.10(13) to .11(20);
4.Tr.72(17-20). Despite knowing, and later taking Judicial Notice of, what STATE
had filed, 4.Tr.72(17-20), and not served, LIPSCOMBE proceeded to enter a
responsive plea “for” PERKINS. 4.Tr.11(14-15).
PERKINS didn’t plea; he had no intention of waiving Notice. E.g.,
4.Tr.11(1-16).
Having no personal jurisdiction, LIPSCOMBE bulldozed ahead, anyway.
No Personal Jurisdiction
Statutory Challenge – Art. 25.04.
At the heart of LIPSCOMBE’s and STATE’s habitual defiance of Due
Process is Art. 25.04 and its relatively long-standing, and unconscionable, judicial
support. By that language, STATE purports to excuse itself, legislatively, from its
Appellant’s Principal Brief (PERKINS) 9
No Notice. No commercial nexus.
duties under Due Process. That language suggests, effectively, that Notice to the
court is identical to Notice to the party charged. The language facially defies all
notions of fair play and substantial justice.
Burden-relieving.
LIPSCOMBE was 100% aware that STATE had served PERKINS with
nothing. See, e.g., 3.Tr.10(13) to .11(20); 4.Tr.71(6-24), .72(17-20). LIPSCOMBE
fully approved STATE’s defiance of Due Process, at one point purporting to
pervert standby counsel into a process server, a role “educated,” “licensed,” and
Bar-ed up CAMPBELL accepted. 3.Tr.11(17-18); 4.Tr.71(6-24). Thus, fully in
sync with Art. 25.04, LIPSCOMBE burdened PERKINS to figure out what the
“charge” against him was, thereby relieving STATE of its Due Process duty of
(timely, meaningful) Service of its original pleading.
Panel-related matters
Submission of anything to the advisory panel.
STATE never proved “transportation.” Whole Record; 4.Tr.39(20) to .41(7);
.49(7) to .51(4). Yet, by submitting any issue to the administrative advisory panel
for recommendation, LIPSCOMBE again effectively denied PERKINS’s Special
Appearance and Plea to the Jurisdiction, see R.19-68 and the interlocutory
Appellant’s Principal Brief (PERKINS) 10
No Notice. No commercial nexus.
appellate Record, and all four of his trial-time motions: two motions to dismiss,
6.Tr.100 and .108, 4.Tr.48 (denied (17)), 4.Tr.56-57 (denied .57(1-2), and two
motions for directed verdict, 6.Tr.104 and .112, 4.Tr.48 (denied (25)), 4.Tr.57
(denied (5-6)). Also overruled were PERKINS’s objections regarding submitting
anything to any panel. 6.Tr.78-83.
Fair trial – Unfairly biasing the panel.
LIPSCOMBE upbraided PERKINS for his understanding of
“transportation,” which depends on the plainly stated discussion in Lozman.
4.Tr.15(6) to .16(13), .24(11) to .25(4), .48(6-20), .49(2) to .51(3), .140(16-22). See
also 4.Tr.74(12) to .75(4).
Quite descriptive of LIPSCOMBE’s perspective, but asserted outside the
hearing of the panel, is this: 4.Tr.72(17) to .73(8); .74(6-8); 5.Tr.4(7) to .7(5).
LIPSCOMBE even went so far as to address his view of “the law” in the
opening remarks to the Voir Dire panelists. 3.Tr.16(10) to .17(8). In that
recitation, LIPSCOMBE whirred “licensure” with “insurance” with the
effectiveness of a cuisinart.
Jury instructions.
PERKINS objected to any and all instructions, 6.Tr.78-83, in part because
there was no case to submit to any panel. After abusing PERKINS for
Appellant’s Principal Brief (PERKINS) 11
No Notice. No commercial nexus.
understanding “transportation,” and after having PERKINS run up the tab for the
Transcript costs, 4.Tr.63(18) to .74(10), LIPSCOMBE refused to define
“transportation” for the panel. 4.Tr.76(9) to .81(7), .84(3-17); R.184-88. He also
refused to define “drive” in any grammatical form, “operate” in any grammatical
form, or “vehicle,” as well. Id.
The Transp. Code, as a system, is extremely semantical and algebraic. R.19,
56-64; R.86-107; R.190-94, 8 R.202, 209-19, 227-31; interlocutory appeal Record.
For clarification of those relationships, PERKINS requested instructions.
4.Tr.63(18) to .74(10); 6.Tr.85-99. On his own motion, LIPSCOMBE included a
definition of “motor vehicle,” 4.Tr.57(17) to .58(9), and that’s as close as he ever
got to recognizing the law to which he’s sworn at least two oaths of office.
Trial/Evidence
STATE’s Ex. 1.
Having no “transportation” evidence, STATE never had foundation not only
for the claim at bar but also for any “driving record” supplied by DPS. Because
there’s no “driving” going on, there’s no relevance in any “driving record.” No
matter how “self-authenticating” that document may be, it’s both irrelevant and
unfairly prejudicial.
8
Record is truncated.
Appellant’s Principal Brief (PERKINS) 12
No Notice. No commercial nexus.
The commercial semantics.
From the outset, PERKINS has objected to the commercial semantics, in
particular “transportation,” “vehicle,” “motor vehicle,” “drive” (all grammatical
forms), and “operate” (all grammatical forms). 2.Supp.Tr.11(8) to .13(1);
4.Tr.30(18) to .31(4); .31(8-21); .32(10-17); .45(25) to .46(10); .84(18) to .85(14);
.103(14-18); .105(22-25); R.19 (Spec. Appear.); Record on appeal for interlocutory
appeal; R.86 (Mot. in Limine); R.180 (Trial Brief after interlocutory appeal);
R.202 (Mot. for New Tr.); 6.Tr.27 to .76. See also 6.Tr.77 to .115. LIPSCOMBE
overruled the objections on all occasions.
Void Judgment
No evidence – conviction.
To preserve his “no evidence” points, PERKINS filed his Motion for New
Trial. R.202-33. As PERKINS proved, STATE had no evidence of, thus never
proved, “transportation.” Whole Record; 4.Tr.39(20) to .41(7); .49(7) to .51(4).
Nonetheless, LIPSCOMBE accepted the advisory panel’s recommendation of guilt
regarding STATE’s “transportation”-based, morphed, hodgepodge “charge.”
No Notice – what was/is the charge?
STATE’s claim morphed from
(A) “driving while license suspended,” R.13, 14, 195, 4.Tr.10 (the language
Appellant’s Principal Brief (PERKINS) 13
No Notice. No commercial nexus.
of the Information), to
(B) “driving while license invalid,” R.1, 5, 6, 7, 116, 146, 201, 238, 2.Tr.4,
3.Tr.4(1-3), 3.Tr.16(13-14), 3.Tr.20 (CHU says that “suspended” and “invalid” are
the same thing; nothing specific mentioned about how “expired” fits in; 4.Tr.52(4-
13)), 5.Tr.5(23-24), to
(C) “DWL INV W/PRV CAN/SUP/WO FN RE,” whatever that is, R.108-
11, R.112-15, R.168-71, R.172-75, 198 (some translation assistance is found here:
“DRIVING W/LIC INV W/PREV CONV/SUSP/W/O FIN RES” is very likely to
mean “driving while license invalid with previous conviction/suspension without
financial responsibility”), 4.Tr.111(11-13), and finally to
(D) “Driving While License Invalid without Financial Responsibility,”
R.184, 189, 4.Tr.88(5-10), 4.Tr.105(8-11), 4.Tr.110(7-11, 14-15), 4.Tr.114(14) to
.115(10), .116(13-15), 4.Tr.132(6-12) (the language of the trial).
Whatever that morphed hodgepodge ended up being, even if STATE had
served its original pleading, STATE never gave Notice of the claim, for even the
charging instrument doesn’t allege the claim tried. 9
9
The Information, which was never served, appears to charge two very
separate matters: “driving” (motor vehicle) with legally “suspended” license and
“operating” (motor vehicle) without insurance. Whether or not that’s even a legit
hodgepodge, there’s no “driving” or “operating” without “transportation,” i.e.,
without a passenger manifest and hire or a bill of lading and hire or both a
passenger manifest and a bill of lading along with hire.
Appellant’s Principal Brief (PERKINS) 14
No Notice. No commercial nexus.
Illegal sentencing – Probation – “ultimate issue.”
As for the sentence, there’s no evidence supporting “guilt.” Moreover,
regarding probation, we’re into another “ultimate issue” problem. R.190-94. 10 A
condition of probation is “no driving.” Another condition is “buy insurance.”
R.195-97; 5.Tr.7(6) to .9(25).
Developing emergency
As of July 27, 2014, another set of “transportation” matters exist. Judicial
Notice. The new county-level matter has recently been transferred (from 6 to 3).
PERKINS finds no basis for that transfer, for there is no active probation. Either
way on that, during the arrest, PERKINS saw the screen used by the arresting
officer. The “Remarks” section includes “DANGEROUS, GANG INFO.”
That plus the use of PERKINS as a whipping boy for the County Attorney’s
Office’s and LIPSCOMBE’s political vendetta, which screams from the pages of
this Record, against the “sovereignty” movement, which “defense” sounds in
politics not commercial fact/law, PERKINS deduces that STATE politically
indoctrinates police officers on “sovereignty” stuff rather than trains them on the
definition of “transportation.” Because that’s the police training, the attorney
training, and the judicial training, they all “see” “sovereignty” activity where
10
Record is truncated.
Appellant’s Principal Brief (PERKINS) 15
No Notice. No commercial nexus.
there’s no jack-boot-licking, no matter what the defense is. Such false,
inflammatory “Remarks” affect the officers at the scene. While no use of excessive
force has occurred, yet, PERKINS is constantly arrested for asserting his “right
not to contract.” Given the epidemic of physical abuse during arrests throughout
“this state,” PERKINS is also now concerned for his physical well-being due to
STATE’s deliberate indifference regarding the failure to train, self-proved by (1)
the false, inflammatory “Remarks” and (2) STATE’s addiction to compelling
PERKINS into court over “transportation” matters where there is no
“transportation” in sight.
Not only is, “I’m not in transportation” not a/the “sovereignty” position! but
also, in a lawful society, it’s the fact that ends the matter. Therefore, this court’s
following the Supreme Court’s lead, Lozman, in addressing “transportation” for
what it is, so that competent legal training replaces inciteful, even dangerous,
political indoctrination, will go a long way in curing this national epidemic that is
spreading in Central TEXAS.
Appellant’s Principal Brief (PERKINS) 16
No Notice. No commercial nexus.
Summary of the Argument
At trial, PERKINS alone understood “transportation.”
LIPSCOMBE never had personal jurisdiction. STATE never served its
original pleading; PERKINS never waived Notice, and Art. 25.04 facially defies
Due Process.
LIPSCOMBE never had subject matter jurisdiction. STATE never proved
“transportation,” i.e., standing, i.e., any “actual grievance” or “injury in fact.”
PERKINS never removed anyone or anything from one place to another for hire in
“this state.” STATE never even tried to prove up any passenger manifest, bill of
lading, or hire.
LIPSCOMBE and STATE succeeded in making a political statement against
the “sovereignty” movement. They wholesale failed to prove up a “transportation”
case. There is no evidence supporting the judgment, which is void.
Vacate and remand with instructions to dismiss.
Appellant’s Principal Brief (PERKINS) 17
No Notice. No commercial nexus.
Argument
Overview
LIPSCOMBE erred and/or abused discretion continuously.
By
Bond-jacking, which was a quasi-“criminal” trial without any
charging instrument, time to prepare, advisory panel, evidence of standing,
commercial nexus, or breach, or final ruling subject to direct appeal; R.6, 9, R.116-
17, R.118, 146, 147; 1.Supp.Tr, 2.Supp.Tr, and 3.Supp.Tr (all);
overruling/denying PERKINS’s Special Appearance and Plea to the
Jurisdiction; R.19-68; (merger into final ruling);
compelling PERKINS to plea into a vacuum; 4.Tr.11(1-16);
overruling PERKINS’s objections to the semantics, effectively
compelling PERKINS’s commercial consent; e.g., 2.Supp.Tr.11(8) to .17(18)
(“driving,” “vehicle,” “motor vehicle”); 4.Tr.30(12) to .31(4) (“drove”); .31(5-22)
(“vehicle”); .32(10-17) (“drive”); .39(18) to .41(7) (no evidence of any passenger
manifest or of any bill of lading or of hire); .45(14) to .46(10) (“vehicle”); .73(9) to
.74(11) (semantics, in toto); .74(12) to .75(5) (“transportation” and “drive”); .85(4-
14); 6.Tr.27-115;
appointing standby counsel; R.6, 12, 200; 3.Tr.4(9) to .6(25); .11(21)
to .12(18);
Appellant’s Principal Brief (PERKINS) 18
No Notice. No commercial nexus.
allowing fact witnesses to assert (terms of) legal conclusion(s) without
evidence, again effectively compelling PERKINS’s commercial consent; e.g.,
2.Supp.Tr.11(8) to .17(18); 4.Tr.30(12) to .31(4) (“drove”); .31(5-22) (“vehicle”);
.32(10-17) (“drive”); .45(14) to .46(10) (“vehicle”);
denying/overruling PERKINS’s trial-time motions to dismiss;
6.Tr.100 and .108, 4.Tr.48 (denied (17)), 4.Tr.56-57 (denied .57(1-2);
denying/overruling PERKINS’s trial-time motions for a directed
verdict; 6.Tr.104 and .112, 4.Tr.48 (denied (25)), 4.Tr.57 (denied (5-6));
by submitting anything at all to the advisory panel;
by overruling PERKINS’s objections to the Instructions; 4.Tr.58(5-6),
6.Tr.77-83;
by denying/overruling PERKINS’s Proposed Instructions, 4.Tr.63(18)
to .74(10), 6.Tr.84-99, refusing to define “transportation,” “drive,” in its various
grammatical forms, “operate” in its various grammatical forms, and “vehicle;”
4.Tr.76(9) to .81(7), .84(3-17); R.184-88;
by accepting the panel’s recommendation of guilt in the face of there
being no evidence of “transportation;”
by accepting the panel’s recommendation of guilt in the face of there
being no evidence of “motor vehicle;”
by sentencing PERKINS without evidence of guilt;
Appellant’s Principal Brief (PERKINS) 19
No Notice. No commercial nexus.
by adding “ultimate issues” as conditions of Probation; R.190-94,
R.195-97; 5.Tr.7(6) to .9(25); and
by denying PERKINS’s motion for new trial; R.202-33; R.234-37;
LIPSCOMBE has no idea what “transportation” is, as he proved repeatedly
throughout the fiasco he promoted and encouraged and called a trial.
The professional incompetence factor – why pro ses are pro se.
When it comes to “transportation,” the prosecutors (WASHBOURNE,
CHU), the stand-by defense counsel (CAMPBELL), who should never have been
appointed, because PERKINS is not indigent and this is a “civil” matter not arising
in the Family Code, and the judge (LIPSCOMBE), have no remote clue what
they’re talking about or doing. The reality is a wicked paradigm shift to the
“educated and licensed” legal professional. Why is that? Why do the professionals
defy the law to which they’ve sworn oaths? This system deliberately mistrains the
professionals, thereby compelling politically targeted individuals to go pro se, and
then blasts them for doing so. Why is that?
STATE is begging for vexatious litigant status.
As is STATE’s habit, STATE tendered no evidence that PERKINS (A)
removed anyone or anything, (B) from one place to another, (C) for hire, (D) under
Appellant’s Principal Brief (PERKINS) 20
No Notice. No commercial nexus.
any choice of law, including “this state.” The conviction also rails against the great
weight of the evidence.
Pre-trial and perpetually factless judgment on the ultimate issue: “driving.”
“Driving” is commercial activity. Period. It’s not a generic term; it’s a very
specific commercial term of legal conclusion. “Driving” does not include “travel.”
LIPSCOMBE buys into the marketing instead of our present commercial
reality. He judged PERKINS as a “driver” from the outset without one shred of
evidence; hence, the illegal Bond-jacking (prompting the interlocutory appeal).
LIPSCOMBE also included the ultimate issue, “(no) driving,” as a probation
condition in a case that included not one moment of “driving,” ever. Shy of
vacating completely, there’s no effective remedy for LIPSCOMBE’s unilaterally
rewriting the law, to the support of which he’s sworn at least two oaths, by which
rewriting he perverts “travel” into “transportation.”
The conviction is facially illegal. So is the sentence. The probation
conditions, (A) get a license and (B) purchase insurance, egregiously violate
PERKINS’s rights (1) not to contract, (2) not to engage in this or that line of
commerce, and even (3) of association, which includes the right not to associate.
Appellant’s Principal Brief (PERKINS) 21
No Notice. No commercial nexus.
Instead of trying a “transportation” matter, LIPSCOMBE, WASHBOURNE,
and CHU unleashed their political attack.
This is Lozman II. Identically, this case turns on “transportation.”
Identically, this prosecution pimped a political vendetta, presenting no evidence of
“passenger(s),” “cargo,” or “hire.” Identically, the “legal” standard applied
judicially defies the law of “this state.”
LIPSCOMBE, WASHBOURNE, and CHU never even considered trying a
“transportation” matter. Mindlessly bloviating from Day One that this alleged
Transp.-Code-based matter required absolutely no evidence of “transportation,”
they effectively caned PERKINS, their whipping boy, head to toe, to rage against
the “sovereignty” movement. LIPSCOMBE totally relieved STATE of its burden,
and the panel was given facially inadequate instructions, which should never have
been issued, because STATE facially failed to present a case that could go to an
advisory panel. Yet, LIPSCOMBE refused to dismiss or direct the verdict.
It’s outright sickening to watch “professionals” refuse to distinguish
between (A) “Go to hell; I have self-assigned, ambassadorial-level (or even god-
like) immunity (never mind there’s no treaty or political recognition),” and (B)
“You have no evidence.”
Appellant’s Principal Brief (PERKINS) 22
No Notice. No commercial nexus.
“Civil” from Day One.
STATE’s non-case was never a “criminal” matter, but always a non-case;
hence, “civil,” from the word Go.
PERKINS’s Special Appearance.
STATE never had an “actual grievance” or “injury in fact.” That follows
directly from PERKINS’s never engaging in “transportation.” Thus, LIPSCOMBE
never had subject matter jurisdiction.
Still relying on Art. 25.04, which flagrantly defies Due Process, which
defiance LIPSCOMBE fully supports, STATE never Served PERKINS with any
charging instrument. Thus, LIPSCOMBE never had personal jurisdiction.
Vacate the void “judgment.”
Vacate LIPSCOMBE’s oath-defying, law-defying, evidence-defying
conviction and sentence of PERKINS. Remand with instructions to dismiss. Don’t
dismiss on appeal. Make LIPSCOMBE dismiss. He might listen next time.
Order STATE (A) to refund PERKINS’s Bonds, with interest, (B) to
reimburse PERKINS for all costs of trial and appeal, including the Transcripts,
with interest, and (C) never to touch PERKINS again for a “transportation” matter
without evidence of “transportation.”
Order LIPSCOMBE, WASHBOURNE, CHU, all other participating
Appellant’s Principal Brief (PERKINS) 23
No Notice. No commercial nexus.
prosecutors, plus their boss, the elected County Attorney, and even CAMPBELL,
to turn in to this court a legible, hand-written paper, a photocopy of which to be
served on all parties, that repeats 100 times the following:
All “transportation” is commercial activity.
“Travel” is not “transportation.” “Travel” is non-commercial activity.
Every claim/charge arising from the Transp. Code depends 100% on
evidence of “transportation.”
“Transportation,” a term of legal conclusion, means (1) removing people
and/or property (2) from one place to another (3) for hire (4) in “this state.”
“Vehicle,” a term of legal conclusion, means a conveyance used for
transportation purposes.
“Motor vehicle,” a term of legal conclusion, means a vehicle with a motor.
11
In Texas, “drive,” a term of legal conclusion, defined not in Chap. 521 but
rather only in and for Chap. 522, means being behind the wheel of a motor
vehicle.
In Texas, “operate,” a term of legal conclusion, means to be behind the
wheel of either a vehicle or a motor vehicle.
Only those engaging in “transportation” can ever be “driving” or
“operating.”
Only those engaging in “transportation” can ever be in a “vehicle” or a
“motor vehicle.”
Only those engaging in “transportation” ever need a “license.”
11
PERKINS will accept the alternative of using LIPSCOMBE’s definition for
“motor vehicle” for this sentence.
Appellant’s Principal Brief (PERKINS) 24
No Notice. No commercial nexus.
Only those engaging in “transportation” ever need “insurance.”
STATE cannot relieve itself of its Due Process duties. Art. 25.04 has always
been, is now, and will forever be facially repugnant to Due Process. STATE
must not only file its original pleading but also must Serve that original
pleading on the respondent at a meaningful time in a meaningful manner.
Obviously, Notice to the trial court is not Notice to the respondent.
I have taken an oath to support the law above, which, as a professionally
educated, “licensed,” and active member of the Bar of the State of Texas, I
learned from self-taught pro se PERKINS.
ORDER CHU to turn in to this court and serve a photocopy of on all parties
a legible hand-written paper that repeats 100 times the following:
My God, you guys! My God! Do you realize that alcohol was never even
remotely relevant to this matter? Do you realize further that where there’s no
“driving,” there’s no “driving while intoxicated?”
My God, you guys! My God! I just compelled PERKINS to expose publicly
the ultimate defense for every single charge throughout “this state” for
which “transportation” is a material element.
My God, you guys! My God! PERKINS has applied the law to which, as a
prosecutor, I’ve sworn at least two oaths of support.
My God, you guys! My God! I intend to send a message by saying that I
learned this law from pro se PERKINS, who didn’t write this law. He
learned it on his own, while I have a formal legal education, a “license” to
“practice law” in “this state,” and an active Bar membership.
Also, STRIKE Art. 25.04 as defiantly repugnant to Due Process.
Appellant’s Principal Brief (PERKINS) 25
No Notice. No commercial nexus.
For further and additional background and discussion, see the Interlocutory
Appeal for this matter, No. 03-13-00813-CR (should be –CV), and the Direct
Appeal involving the muni. court matters, Nos. 03-14-00305-CR, 03-14-00306-
CR, 03-14-00307-CR, 03-14-00308-CR, 03-14-00309-CR, and 03-14-00310-CR
(All should be –CV), all styled PERKINS v. STATE.
No Subject Matter Jurisdiction and related matters
Statutory Challenges – definitions.
Issue 1: What does “transportation” mean?
R.19, 29-32, 56-60, 64, 65; R.86-102, 106; R.180, 182; R.190-92; R.202,
209-15, 219; 6.Tr.27-38, 87-89; .65 to .76.
Not defined in the Transp. Code.
The term “transportation” is nowhere defined in the Transp. Code.
On the one hand, a term doesn’t have to be defined to be agreed/consented
to. On the other, where there’s no agreement and no consent, as is the situation at
bar, the fact that STATE refuses to define the term on which the entirety of its
Transp. Code depends hardly means that there’s no definition. It just means we
have to do some digging to find it.
Appellant’s Principal Brief (PERKINS) 26
No Notice. No commercial nexus.
Per the recent Lozman ruling, “transportation” means “carrying passengers
or cargo.” See Lozman, Part IV.
Defined.
Removing people and/or property.
Transp. Act of 1940, 54 Stat. 898, 929, 49 U.S.C. § 902(i)(1), in particular
§ 302(i)(1). Cornell Steam-boat, 321 U.S. at 641-42 (Frankfurter, J., dissent). Cf.
Lozman (passengers or cargo).
From one place to another.
Cf. Maynard (context: unlawful “transportation” of intoxicating liquor). Cf.
Lozman.
transportation, n. (16c) 1. The movement of goods or persons from one
place to another by a carrier. … .
BLACK’S LAW DICTIONARY 1638 (9th ed. 2009) (all emphasis in original).
** For hire. **
See Lozman, Part IV (“carrying passengers or cargo”).
St. Clair Cnty, 192 U.S. at 456-57 (allegations regarding operating a ferry
without a license). See also Cosio, 182 S.W. at 85.
Again, there’s BLACK’S LAW DICTIONARY.
transportation, n. (16c) 1. The movement of goods or persons from one
place to another by a carrier. … .
Appellant’s Principal Brief (PERKINS) 27
No Notice. No commercial nexus.
BLACK’S LAW DICTIONARY 1638 (all emphasis in original).
carrier. 1. an individual or organization (such as a ship-owner, a railroad, or
an airline) that contracts to transport passengers or goods for a fee. Cf.
SHIPPER. [Cases: Carrier 3, 235.] … .
Id. at 242 (emphasis added).
Under the choice of law of the “place” called “this state.”
Where “hire” is be paid with “funny money” (US “dollars,” federal reserve
notes), this element is satisfied. There is no evidence of “hire” using any medium
of exchange, much less any exchange of “funny money,” in any amount.
Going deeper into the definition – “transport.”
Is “transport” different from “transportation” materially or just
grammatically? What do “transport” and “draw” mean? “Draw” can’t have a
wider scope than “transport,” for all the reasons that “transport” is limited to the
commercial context.
See Black’s 9th ed.; Black’s 5th ed.; Salz (“To transport means to convey or
carry from one place to another[.]” 273 U.S. at 329.) (“transport” activity was for
hire); Webster’s Dictionary of 1828 (TRANSPÖRT, v. t. [L. transporto ; trans
and porto, to carry.]; TRANS´PÖRT, n.; TRANSPORTA´TION, n.) (“transport”
and “transportation” differ only grammatically); Hinton, 222 F.3d at 672 (the Post
Office does what it does for hire); Bearden, 320 F.2d at 103; Michigan, 911 F.
Appellant’s Principal Brief (PERKINS) 28
No Notice. No commercial nexus.
Supp. 2d at 765; Marshall, 459 F. Supp. at 97-98 (Mireles (1) removed people and
property (2) from one place to another (3) for hire); Lacross (“transportation” as a
criminal drug offense); Cuellar (“[H]ow one moves the money is distinct from
why one moves the money. Evidence of the former, standing alone, is not sufficient
to prove the latter.”); Alalunga Sport Fishers; Dragich; Hammell; and TEX. PENAL
CODE § 46.15(b)(3)) (overtly distinguishing between “transportation” and
“travel”).
The difference between “how” and “why.”
What LIPSCOMBE, WASHBOURNE, and CHU can’t distinguish is the
“how” (by car) from the “why” (for hire). “How” is all that matters to them despite
the fact that the Supreme Court launched that “how only” perspective directly into
the sun via Lozman. Per Lozman, it’s precisely the why question that controls the
result, and it’s City of Riviera Beach’s wholesale failure to prove why, i.e., to
prove commercial intent, i.e., specifically, to prove “passengers or cargo,” that led
to that “no transportation,” thus no “vessel,” thus “no jurisdiction” ruling in
Lozman’s favor.
Appellant’s Principal Brief (PERKINS) 29
No Notice. No commercial nexus.
“No evidence” standard.
“No evidence” points must, and may only, be sustained when the record
discloses one of the following situations: (a) a complete absence of evidence
of a vital fact; (b) the court is barred by rules of law or of evidence from
giving weight to the only evidence offered to prove a vital fact; (c) the
evidence offered to prove a vital fact is no more than a mere scintilla; (d) the
evidence establishes conclusively the opposite of the vital fact.
City of Keller, 168 S.W.3d at 810 (quoting CALVERT, “No Evidence” and
“Insufficient Evidence” Points of Error, 38 TEX. L. REV. at 362-63).
The relevant concepts are (a) and (d).
There’s no evidence of “transportation.”
STATE has no evidence, because none exists, of any passenger manifest, of
any bill of lading, or of any hire. Whole Record; 4.Tr.39(20) to .41(7), .49(7) to
.51(4). None was even asked into at the time of the stop. 4.Tr.39(20) to .41(7).
STATE couldn’t and didn’t prove up “transportation,” and PERKINS never
consented to any of the commercial semantics.
The algebraic dependence of these other terms on “transportation.”
For the “transportation”-related statutory challenges that follow, the point is
that STATE couldn’t and didn’t prove any element of any Transp. Code claim,
because they couldn’t and didn’t first prove “transportation.” As a term,
“transportation” is a term of legal conclusion, not of fact, but of legal conclusion.
Appellant’s Principal Brief (PERKINS) 30
No Notice. No commercial nexus.
Similarly, all these terms are terms of legal conclusions, not facts, but legal
conclusions. All these terms depend directly on proof of “transportation.” And,
there is no such proof.
Without evidence of “transportation,” i.e., the removing of someone
(“passenger”) and/or something (“cargo”) from one place to another for hire, cf.
Lozman, it follows as a matter of law that there is also no “vehicle,” no “driver,” no
“motor vehicle,” and no “operator.”
Issue 2: What does “vehicle” mean?
R.19, 60, 64; R.86, 102; R.202, 215, 219; 6.Tr.27, .38, .55 to .59, .84, .89.
See Issue 1.
TRANSP. CODE §§ 502.001(24), 541.201(23), 621.001(9), 750.003(a).
Translation: a conveyance used for “transportation” purposes.
Application of statutory algebra: If no “transportation,” then no “vehicle.”
For STATE’s fact witness to assert “vehicle” is for that witness to assert a
legal conclusion, not a fact. That legal conclusion depends, in part, on there being
evidence of “transportation.” There is no evidence of “transportation,” and
PERKINS never consented to the semantics. Therefore, it’s legally impossible for
there to be a “vehicle.”
LIPSCOMBE focused not on “for hire” (the “why”) but rather solely on the
Appellant’s Principal Brief (PERKINS) 31
No Notice. No commercial nexus.
car (the “how”), including whose hand is on the wheel or whose foot is on the
brake. That proves “behind the wheel” (in most situations). But, that begs the very
question at issue here: behind the wheel of what? A “vehicle.” What’s a
“vehicle?” A conveyance used for “transportation” purposes.
STATE has no evidence of “transportation,” and PERKINS didn’t consent
to any of the semantics. Therefore, there is no “vehicle.”
Issue 3: What does “motor vehicle” mean?
R.19, 61, 64; R.86, 103; R.202, 216, 219; 6.Tr.27, .40, .60 to .64, .84, .89 to
.90. See also Issues 1 and 2.
TRANSP. CODE §§ 501.002(14), 502.001(13), 522.003(21), 541.201(11),
601.002(5), 642.001(1), 647.001(4), 683.001(4), 728.001(2).
Translation: “Vehicle” with a motor.
Application of statutory algebra: If no “transportation,” then no “vehicle;” if
no “vehicle,” then no “motor vehicle.”
The term “motor vehicle” is a legal conclusion, not a fact. For there to be a
“motor vehicle,” STATE must first prove “transportation.” There is no evidence of
“transportation,” and PERKINS never consented to the semantics. Therefore, it’s
legally impossible for there to be a “motor vehicle.”
Additionally, regarding the liability phase, there is also not one word of
Appellant’s Principal Brief (PERKINS) 32
No Notice. No commercial nexus.
direct evidence about any “motor” or “self propulsion.” This intends to be an
exhaustive list: 2.Supp.Tr.13(18-20), .15(18-21); 3.Tr.20(7-13), 21(14-17);
4.Tr.10(14-23), .13(14-20), .27(18-23), .27(24) to .28(14), .37(10-13), .38(23) to
.39(20), 12 .57(16) to .58(10), .58(10-23), .65(19) to .66(2), .66(3-10), .66(11-20),
.66(21) to .67(5), .76(9) to .77(3), .77(7-8) (the sole reference to “self-propelled”),
.77(14-23), .77(24) to .78(9), .78(10-25), .81(10) to .82(14). See also 4.Tr.88(18)
to .89(1) (context – damages phase), .91(16) to .93(13), .93(17) to .95(12), .98(4)
to .99(2), .99(16) to .101(7), .101(8) to .110(4); 5.Tr.9(9-25).
If “motor vehicle” is somehow implied, then we’re back to the fact of no
evidence of “transportation” and no consent to the semantics.
Issue 4: What does “drive” mean?
R.19, 61-62, 64; R.86, 103-4; R.180, 182; R.190, 192-94; R.202, 216-17,
219; 6.Tr.27, .39, .44 to .48, .84, .90. See also Issues 1, 2, and 3.
TRANSP. CODE § 522.003(11).
LIPSCOMBE doesn’t understand; WASHBOURNE doesn’t understand;
CHU doesn’t understand; thus, the panelists never had a chance of understanding.
The sole definition for “drive” in the entire “transportation” code is found in
the “commercial driver’s license” chapter, Ch. 522. It’s not even in Chap. 521!
12
This reference to the Record in no way waive objection to STATE’s Ex. 1.
Appellant’s Principal Brief (PERKINS) 33
No Notice. No commercial nexus.
Translation: In the disciplined “transportation” code, “drive” means being
behind the wheel of a “vehicle.” In the TEX. TRANSP. CODE, “drive” means being
behind the wheel of a “motor vehicle.”
Application of statutory algebra: If no “transportation,” then no “vehicle;” if
no “vehicle,” then no “motor vehicle;” if no “motor vehicle,” then no “driving;”
hence, no “driver.”
The term “drive” in any of its grammatical forms is a term of legal
conclusion, not of fact. For there to be any “driving,” STATE must first prove
“transportation.” There is no evidence of “transportation,” and PERKINS never
consented to the semantics. Therefore, it’s legally impossible for there to be any
“driving.”
Being “behind the wheel,” by itself, with nothing more, is not “driving.”
The following intends to be exhaustive of the events and contexts suggesting
STATE’s and LIPSCOMBE’s perspective that “driving” means and includes
“travel:” the threshold arrest on the street; the whole pre-trial context (therefore,
why the Spec. Appear. and Plea/Juris didn’t even get set for hearing), including
R.13, 14, also including the whole of the Bond-jacking episode, e.g., 2.Supp.Tr
(all), including 2.Supp.Tr.5(5-17), .6(15) to .13(2), .13(3) to .17(17), and up
through voir dire, including 3.Tr.4(1-9), .7(3) to .9(6), .16(10) to .17(8), .20(1) to
.23(14), (intervening discussion on “traffic” implies a perspective that “driving”
Appellant’s Principal Brief (PERKINS) 34
No Notice. No commercial nexus.
means and includes “travel,” but “drive” isn’t specifically mentioned), .26(2-24),
.27(4) to .28(9); the whole of the liability determination phase, including
4.Tr.10(8-25), .12(17) to .15(1), .15(6) to .16(13), .17(21), .22(10) to .24(2),
.26(17) to .42(12), .48(1) to .49(1), .49(14) to .57(16); the whole of the “Charge
Conference, including .57(17) to .73(8), .73(9) to .74(10), .74(12) to .75(5), .76(9)
to .81(7), .81(8) to .83(25), .84(1) to .86(4), .89(12) to .90(5), .91(15) to .95(12),
.95(23), .97(11) to .99(2), .99(17) to .100(22), .101(8-9), .102(10) to .109(16),
.111(9) to .114(8), .117(1) to .119(6), .119(12) to .120(7), .121(6) to .122(18),
.133(5) to .134(21), .134(22) to .140(22); the whole of the damages phase,
including 5.Tr.4-9. Everything about this matter, from Day One, is indelibly
tainted by the perspective that “driving” includes that non-commercial activity
known as “traveling.”
“Driving” means being behind the wheel of a “motor vehicle.” That begs
the question: What is a “motor vehicle?” As already demonstrated, a “motor
vehicle” is a conveyance used for transportation purposes (i.e., a “vehicle”) that
has a motor.
“Driving” is 100% commercial activity. Being behind the wheel of a non-
commercially-used conveyance, as is the fact pattern here, is “traveling,” which
activity is totally and completely beyond the scope of the Transp. Code. And, to
make another related point, while “drivers” need “licenses” and “insurance,”
Appellant’s Principal Brief (PERKINS) 35
No Notice. No commercial nexus.
“travelers” do not.
Issue 5: What does “operate” mean?
R.19, 62-63, 64; R.86, 105-06; R.202, 217-18, 219; 6.Tr.27, .40, .49 to .54,
.84, .90 to .91. See also Issues 1 to 4.
TRANSP. CODE § 541.001(1).
Translation: In the disciplined “transportation” code, an “operator” is behind
the wheel of a “motor vehicle.” In the TEX. TRANSP. CODE, an “operator” is
behind the wheel of either a “vehicle” or a “motor vehicle.”
The “definition” is very confused. “Drives,” which has meaning only with
respect to a “motor vehicle,” is juxtaposed with the concept of “physical control of
a vehicle.” Ultimately, it doesn’t matter, here, because there is no “transportation,”
but which is it: “vehicle” or “motor vehicle?” 13
Application of statutory algebra: No “transportation?”—no “vehicle;” no
“vehicle?”—no “motor vehicle;” no “(motor) vehicle?”—no “operator.”
The term “operate” in any of its grammatical forms is a term of legal
conclusion, not of fact. For there to be any “operating,” STATE must first prove
“transportation.” There is no evidence of “transportation,” and PERKINS never
13
See also §§ 601.002(8) (“motor vehicle”), 642.001(2) (same), 647.001(5)
(same); § 724.001(11) (looks to a “motor vehicle” or watercraft, i.e.,
“transportation” activity); § 24.013(f)(2) (regarding aircraft).
Appellant’s Principal Brief (PERKINS) 36
No Notice. No commercial nexus.
consented to the semantics. Therefore, it’s legally impossible for there to be any
“operating.”
Being “behind the wheel,” by itself, with nothing more, is not “operating.”
Being behind the wheel of a “(motor) vehicle” is “operating.” That begs the
question: What is a “(motor) vehicle?” As already demonstrated, a “vehicle” is a
conveyance used for transportation purposes, and a “motor vehicle” is a “vehicle”
with a motor.
“Operating” is 100% commercial activity. Being behind the wheel of a non-
commercially-used conveyance, as is the fact pattern here, is “traveling,” which
activity is totally and completely beyond the scope of the Transp. Code. And, to
make another related point, while “operators” need “licenses” and “insurance,”
“travelers” do not.
Issue 6: What does “this state” mean?
R.19, 63-64; R.202, 218-19.
The “place” called “this state” is that “place” in which the use of “funny
money” is not instantly fraud. The “place” called “this state” is a “choice of law”
“place” that is very separate and distinct from the Land. The alternative to “funny
money” is honest weights and measures, e.g., silver and gold Coin, which is where
America started. That changed circa 1965, when the last vestiges of silver were
Appellant’s Principal Brief (PERKINS) 37
No Notice. No commercial nexus.
sucked out of general circulation.
To satisfy element (4) of “transportation,” STATE would have to prove
“hire” in the form of “funny money.” Since STATE has no evidence of “hire,”
there is no evidence of any exchange of “funny money.” In application of “this
state,” then, STATE has no evidence of “transportation,” i.e., no evidence of
commercial intent, for there is no evidence of “hire” in the form of “funny money.”
No evidence – Standing.
Issue 7: Did STATE ever prove standing, i.e., “transportation?”
Record references. See “No evidence – Standing,” p.1, and Issues 1 to 6.
See also “No evidence standard,” p.30.
In application of the commercial semantics.
PERKINS was not engaged in “transportation.” He was at no time (1)
removing anyone or anything (2) from one place to another (3) for hire (4) in “this
state.” Issue 1. Therefore, there was no “vehicle,” no “driver,” no “motor vehicle,”
and no “operator.” Issues 2-5. Moreover, at no time did any officer even make
inquiry into any passenger manifest, bill of lading, or hire. 4.Tr.39(20) to .41(7).
Thus, no officer ever had authority to charge PERKINS with any violation of the
Transp. Code. In sum, STATE has never had any “actual grievance,” Tex. Dept. of
Appellant’s Principal Brief (PERKINS) 38
No Notice. No commercial nexus.
Parks & Wildlife v. Miranda (standing, plaintiff must show “actual grievance”),
i.e., never had any “injury in fact,” Heckman, 369 S.W.3d at 154-55 (citing Lujan,
504 U.S. at 560-61), which means that LIPSCOMBE never had subject matter
jurisdiction. The “judgment” against PERKINS is void.
Burden-relieving.
Issue 8: Did LIPSCOMBE relieve STATE of its evidentiary burden?
Record references. See “Burden-relieving,” p.2, and Issues 1 to 7.
LIPSCOMBE overtly asserted that STATE didn’t have to prove
“transportation,” 3.Tr.8(14-20), and, as shown for the preceding Issues, he
constantly “corrected” (overruled) PERKINS when PERKINS insisted on proof
(objected to the assertion of legal conclusions without facts or consent).
Any “transportation” matter turns on commercial intent. Lozman. STATE
never proved that PERKINS ever (1) removed anyone or anything (2) from one
place to another (3) for hire [(4) under any choice of law].
Thus, given STATE’s total lack of evidence, Whole Record, 4.Tr.48(1-20),
.56(15) to .57(2), LIPSCOMBE relieved STATE of its burden by doing anything
but dismissing. Cf. Scott (summary judgment, video of car chase relevant) (citing
Diebold, 369 U.S. at 655; Anderson, 477 U.S. at 255) (summary judgment
presumptions are against movant); Sandstrom (presumption that shifted burden of
Appellant’s Principal Brief (PERKINS) 39
No Notice. No commercial nexus.
persuasion on culpable mental state violated Due Process); Mullaney (citing In re
Winship) (to relieve plaintiff of burden is to violate Due Process); Heiner.
See also Brown, 122 S.W.3d at 799 (burden-shifting nature of mandatory
presumptions – homicide context); Pennock, 725 S.W.2d at 415-18 (jury
instruction on intent, in full context of case, established impermissible presumption
causing egregious harm); Hall, 661 S.W.3d at 104 (citing County Court of Ulster
County, Leary; Tot, Sandstrom; Johnson, and Mullaney – obscenity context –
ultimately finding no improper presumption regarding Hall).
Use of irrebuttable presumptions violates Due Process.
Despite STATE’s total lack of evidence, Whole Record, 2.Supp.Tr (all),
4.Tr.39(20) to .41(7), .49(7) to .51(4), and despite PERKINS’s affirmative,
uncontroverted evidence negating “transportation,” id., thus negating commercial
intent, STATE and LIPSCOMBE irrebuttably presumed commercial intent, which
burden-shifting perspective flatly and flagrantly violates Due Process. See Elkins;
Salfi (in particular part III, which distinguishes Salfi); Cleveland Bd. of Educ.;
Vlandis; Stanley.
Appellant’s Principal Brief (PERKINS) 40
No Notice. No commercial nexus.
Nature of claim.
Issue 9: Did STATE ever have a “criminal” case?
Record references. See “Nature of claim,” p.2, and Issues 1 to 8, 18 and 19.
Where there is no personal jurisdiction, the matter is a non-case. Where
there is no subject matter jurisdiction, the matter is a non-case. All cases are non-
cases, cf. Austin (Blackmun, J., dissent); Deposit Guaranty Nat’l Bank, 445 U.S. at
353 (Powell, J., and Stewart, J., dissent); Williams, 472 U.S. at 36 (dissent) (citing
Austin), i.e., civil, until STATE proves Notice and standing. Some matters, just
like this one, never stop being non-cases. Cf. Rockwell Int’l Corp. (the final pre-
trial order confirmed that this was a non-case).
Due to intentional refusal to serve PERKINS with STATE’s original
pleading, LIPSCOMBE never had personal jurisdiction. Issues 18, 19.
Due to STATE’s wholesale failure to prove up “transportation,” see Issue 1,
STATE never had standing, Issue 7, meaning that LIPSCOMBE never had subject
matter jurisdiction.
Since all non-cases are civil in nature, it follows that LIPSCOMBE never
had subject matter jurisdiction over STATE’s claim.
Appellant’s Principal Brief (PERKINS) 41
No Notice. No commercial nexus.
Appointment of standby counsel.
Issue 10: May standby counsel be appointed for this “civil” matter?
Record references. See same heading in Statement of Facts, p.2. See also
Issue 9, Issues 1 to 8, and Issues 18 and 19.
Key, PERKINS is not indigent. 3.Tr.4(9-16). Plus, this was never a
“criminal” matter, but rather always a non-case; hence, “civil.”
PERKINS notes that Art. 1.05 allows pro se, representation, or both. The
Second Circuit notes the logical impossibility of “both.” E.g., Jones v. Artuz, 96
Fed. Appx. 742 (2d Cir. 2004) (otherwise unpublished). Nonetheless, PERKINS
contends that appointment still can’t happen without satisfaction of the threshold
requirement of indigence. So, “both” can apply only to the indigent, for only the
indigent are eligible for appointment.
On the other hand, while the statutes and cases compel appointment for
indigent in matters that involve possible incarceration, cf. Art. 42.15 (even indigent
don’t get counsel for Class Cs), there’s no statute or ruling that overtly prohibits
appointment for non-indigent where the court deems justice so requires.
14
In light of Rothgery, there’s considerable standby appointment activity.
14
Rather unscientific study results. A particular electronic database counted
right at 200 “standby counsel” rulings. Of that 200, only 50 mentioned indigency.
That’s 150 rulings that involve appointment without overt mention of indigency.
PERKINS expects the bulk of those 150 will post-date Rothgery.
Appellant’s Principal Brief (PERKINS) 42
No Notice. No commercial nexus.
Gideon, is a national standard; so, yes, any STATE may provide more than the
minimum, national standard of protection of rights. But, even STATE’s standard is
conditioned at the threshold by indigency. Art. 1.051; R.200. Note how very blank
that form is. R.10, 199.
The entire concept of appointment has to do with economics, not age,
experience, education, etc. Appointment of standby counsel over PERKINS’s
objection actually, ironically, risks violating PERKINS’s statutory right to waive
certain rights. Cf. Art. 1.14; Art. 15.17. Therefore, we evaluate that conflict.
CAMPBELL’s participation was rather limited, so it’s not as if PERKINS
was in any way disallowed self-representation. But, neither was PERKINS’s prior
trial or appellate experience on these very issues inquired into or considered. And,
where the prior alleged “convictions” were noted, the inclusion of any of that at
sentencing was greatly unfair, for those matters are flat out not “final,” as this
appellate court may confirm via Judicial Notice. In other words, regarding the
appointment issue, no one knows, yet, but what PERKINS handled both trial and
appeal, previously and currently, with deftness and aplomb. Additionally, the
procedural fact that absolutely confirms PERKINS’s position is that this was never
a “criminal” matter but was at all times a non-case; hence, “civil.” Issue 9. There’s
Appellant’s Principal Brief (PERKINS) 43
No Notice. No commercial nexus.
no such thing as appointment of counsel for civil matters. 15
A standard that looks to the “objective conditions as of the date of
appointment” is what should govern this issue. Those “objective conditions”
include not only the prior trials but also the exact same legal principles as for this
one. In other words, the fact this is one more non-case, i.e., a facially “civil”
matter, coupled with the fact that PERKINS has been, repeatedly, the only legal
mind in the courtroom who actually understands “transportation” has got to be
factored into the equation at some point. In other words, given the “objective
conditions as of the date of appointment,” it’s LIPSCOMBE, WASHBOURNE,
CHU, and maybe even CAMPBELL, who needed legal counsel from PERKINS.
They had the right to reject that counsel, which they did, and yet PERKINS wasn’t
allowed the same consideration.
Bottom line, PERKINS just doesn’t see how LIPSCOMBE gets a “pass”
even this time. However, either way on that, something in the way of an objective
standard must be established so that we don’t have this issue in perpetuity.
15
This is not a Family Code matter, whether termination or juvenile.
Appellant’s Principal Brief (PERKINS) 44
No Notice. No commercial nexus.
Statutory Challenge – Transp. Code charges, generally
Issue 11: May STATE ever charge any alleged Transp. Code violation as a
misdemeanor?
Record references. None. New challenge to subject matter jurisdiction.
Subject matter jurisdiction can’t be “agreed to.”
It’s ancient that the parties cannot, by agreement or consent, confer
jurisdiction on any trial court. “Criminal” context. STATE must file (and serve) its
original pleading to establish jurisdiction. Dunbar, 297 S.W.3d at 780 (Indictment
may be waived; Information may not); Murray, 302 S.W.3d at 877 n.11 (same).
Heilman, 413 S.W.3d at 508 (citing TEX. CODE CRIM. PROC. ANN. art. 12.02;
Garcia, 596 S.W.2d at 527; Ieppert, 908 S.W.2d at 220 (People may not “consent
to be imprisoned for conduct which does not constitute a crime.”)); Casias, 503
S.W.2d at 265 (for appellate jurisdiction, the existence of a sentence is
jurisdictional). “Civil” context. Tex. Dept. of Parks & Wildlife v. Miranda, 133
S.W.3d at 224-25; Dubai Petroleum Co., 12 S.W.3d at 74-77 (Part II) (citing Fed.
Underwriters Exch., 141 Tex. at 541, 174 S.W.2d at 600).
What is the proper offense level?
All matters sounding in “criminal” charges codified outside the Penal Code
sound in alleged breach of fiduciary duty. That’s the only form of agreement for
which mere breach may even possibly be enforced “criminally.” Therefore, any
Appellant’s Principal Brief (PERKINS) 45
No Notice. No commercial nexus.
and all “crimes” arising from the Transp. Code sound in alleged breach of trust.
In Chacon, we learn that a municipality may not decrease (i.e., alter) the
punishment level, via ordinance (i.e., “agreement”), where STATE has established
such level via the Penal Code.
To be sure, we’re not talking about an ordinance, here, as in Chacon, but we
are talking about a punishment-level conflict between the Penal Code and the
Transp. Code. So, what is the punishment level, if any, for criminal breach of trust?
State jail felony. TEX. PENAL CODE § 32.43 (commercial bribery, by label), but
“criminal” breach of fiduciary duty from the Transp. Code is only a Class B (or C).
Where the Dept. of Public Safety or the Dept. of Transp. is the entity making
the offer for a reduced punishment, which has to be the situation, given that the
“offer” is in the Transp. Code, there’s no way either entity gets around (c).
(b) A person who is a fiduciary commits an offense if, without the consent of
his beneficiary, he intentionally or knowingly solicits, accepts, or agrees to
accept any benefit from another person on agreement or understanding that
the benefit will influence the conduct of the fiduciary in relation to the
affairs of his beneficiary.
(c) A person commits an offense if he offers, confers, or agrees to confer any
benefit the acceptance of which is an offense under Subsection (b).
TEX. PENAL CODE § 32.43(b), (c).
By extending the offer of a reduced punishment, it’s the alleged beneficiary
(whether DPS or TX DoT) that potentially violates § 32.43(c), and that by merely
Appellant’s Principal Brief (PERKINS) 46
No Notice. No commercial nexus.
extending the offer of a reduced punishment level. Where the alleged beneficiary
consents, then there may or may not be a violation of § 32.43(b) or (c), but that
depends on whether parties may by agreement alter the legislativley established
punishment level. Is it “legal” for parties (even if one of them is a STATE agency)
to “agree” to a lesser punishment level? PERKINS doubts very seriously that such
is even conscionable. Cf. Chacon. Since it’s definitely not possible to side-step
(reduce, alter) the punishment level via a commercial nexus based on an
ordinance, why should a commercial nexus looking to a STATE “code” be treated
any differently? Is it the agreement or the party that matters? If it’s the party,
STATE still has to prove up a fiduciary agreement, including the real party in
interest, i.e., the active beneficiary, in order to side-step this problem. STATE also
has to prove that the Respondent formally and intentionally consented to being a
fiduciary (per the Transp. Code).
There is no such evidence, here, so we’re still talking “civil” non-case, but
that doesn’t alter in any way the basis of the alleged violation of the Transp. Code
– alleged “criminal” breach of trust.
In sum, until a STATE agency is authorized to offer a reduced punishment
level via a commercial nexus looking to a STATE “code” (that offers that lesser
punishment level), it violates public policy to allow parties to reduce (alter) the
statutory punishment level by agreement between themselves. Chacon (no
Appellant’s Principal Brief (PERKINS) 47
No Notice. No commercial nexus.
alteration via agreement disguised as an ordinance); thus, by logical extension, no
alteration by any “code” that applies, if at all, only by agreement. In sum, all
alleged Transp. Code “violations” are state jail felonies.
What is the proper charging instrument?
Procedurally, that means Grand Jury Indictment. (Jurisdictionally, that
means District Courts, not county courts.)
No waiver of Indictment.
Where the proper charging instrument for any Transp. Code matter is an
Indictment, it’s very material that there’s no such waiver in this Record.
Since there is no Indictment (or any Citation or Return thereof, see TEX. RS. CIV.
P. 99-107), there is no case, as a matter of law.
No evidence – Capacity.
Issue 12: Did STATE ever prove PERKINS liable in the capacity charged?
Record references. None. New challenge to subject matter jurisdiction.
See, generally, preceding Issue.
To make the point about the nature of any alleged Transp. Code violation,
STATE proved up no commercial nexus, much less one sounding in trust.
PERKINS was never engaged in “transportation,” Issue 1, therefore, he never
Appellant’s Principal Brief (PERKINS) 48
No Notice. No commercial nexus.
volunteered into the essential fiduciary role. And no one may be compelled into a
fiduciary role/office. BOGERT § 42 at 434, § 44 at 452 and n.16 (coerced trust is
not evidence).
Since there is no evidence of any relevant commercial nexus, Issue 1, there
is also no evidence that PERKINS was ever liable in the capacity charged.
Appearance Bond.
Issue 13: Did LIPSCOMBE actually add conditions to PERKINS’s
Appearance Bond?
Record references. See Statement of Facts, “Appearance Bond,” p.4, “Bond-
jacking and [‘]ultimate issues[’] as “conditions,” p.5, and “Bond-jacking – No
charging instrument; no evidence; no standing,” p.7.
LIPSCOMBE asserts that PERKINS may be held in contempt.
2.Supp.Tr.14(17) to .15(21). Contempt requires disobedience of the court, which
requires an order.
Civil contempt in Texas is the process by which a court exerts its
judicial authority to compel obedience to some order of the court. Ex parte
Werblud, 536 S.W.2d 542 (Tex.1976). One who is committed to jail for civil
contempt should be able to find somewhere in the record the written order,
which meets the requirements of Ex parte Slavin, 412 S.W.2d 43
(Tex.1967). It is the written order which is entered on the minutes, which a
court is directed to sign, Tex.R.Civ.P. 306a, and which evidences one's
rights and duties. Oral orders are poor substitutes for the requirement of one
final judgment.
Appellant’s Principal Brief (PERKINS) 49
No Notice. No commercial nexus.
Ex parte Padron, 565 S.W.2d at 924. “There was a total failure to prove that he
was ordered to do anything ….” Id.
The (obvious) purpose of the exhaustive list is to confirm that PERKINS
finds nothing of Record, not even a mention, much less an order, about any such
“no driving” conditions associated with his Appearance Bond. Cf. 2.Supp.Tr.7(13-
15), .17 (10-16). “Telling” and “ordering” (of Record) are two different things.
As for STATE’s motion to revoke/modify, clearly, STATE can request that
relief without there being any such added conditions, and STATE makes no
reference to any such added conditions. It’s just that both LIPSCOMBE and CHU
assert that such conditions were added, and PERKINS doesn’t find that, at all.
There being no order with any added conditions, whatsoever, contempt is off
the table. That affects the relevant procedures. In re Fountain, 433 S.W.3d 1, 10,
12-13 (Tex. App. – Houston [1st Dist.] 2012, no writ) (dissent KEYES, J.). Key,
where there are no such Bond conditions, the entirety of the proceeding is suspect,
for a generic assertion of “criminal” conduct regarding a generic Bond violation
has a process that starts with a charging instrument. See Issue 11.
Appellant’s Principal Brief (PERKINS) 50
No Notice. No commercial nexus.
Issue 14: Did LIPSCOMBE err (or abuse discretion) by adding any
conditions to PERKINS’s Appearance Bond?
Record references. Same as Issue 13.
Where nothing was added, e.g., preceding Issue, this Issue is moot.
If there really is something added, then, on the one hand, Bond is flexible
enough that certain conditions may very well be added, where assuring
“appearance” is the objective. Ex parte Anderer.
So, as a place to start, PERKINS expects that adding conditions is
generically possible, if they’re of a particular nature, i.e., a nature that motivates
appearance, rather than a nature that, on the other hand, purports to allow a court to
strip relevant “charging” processes of all remote semblance of Due Process.
Issue 15: Did LIPSCOMBE err (or abuse discretion) by adding “ultimate
issue” conditions to PERKINS’s Appearance Bond?
Record references. Same as Issue 13.
If Issue 14 is moot, then 15 (this one) may be, also.
WASHBOURNE had the audacity to argue that “driving” would put
PERKINS at risk of non-appearance! R.117 (V.). Where’s the connection? Reality
suggests that not being able to use one’s car is the greater risk to non-appearance.
Moreover, this is an “ultimate issue” matter. See discussion starting p.5.
Where Bond, whether pre-trial or post-conviction, is conditioned on a matter that is
Appellant’s Principal Brief (PERKINS) 51
No Notice. No commercial nexus.
at the heart of the reason for trial in the first place, that “breach” issue is handled
by short-circuited procedure, as the Supp.Tr Volumes prove in abundance.
In sum, there’s nothing about a “no driving” condition for Bond, if such
existed, that has anything to do with insuring appearance. Ex parte Anderer. In
fact, it’s obviously the exact opposite! PERKINS appeared, having “not driven,”
and STATE dragged him away from trial in handcuffs. In short, STATE and
LIPSCOMBE has no purpose or intent other than PUNISHMENT, as another way
to perpetuate the political vendetta.
Even more to the point, how is that condition “evaluated” shy of a criminal
charge, anyway? So, where there’s a criminal charge, R.116-17 (IV.),
2.Supp.Tr.6(22-25), then, given the generic concept of not getting into more
trouble is a condition of pre-trial release, it follows that a specific, “ultimate issue”
condition is “repetitive and redundant,” anyway, and is, literally, nothing more
than an attempt to short-circuit the proof and process regarding such an alleged
“criminal” violation, as this Record, via the three Supp.Tr Volumes self-proves in
train-car loads.
Appellant’s Principal Brief (PERKINS) 52
No Notice. No commercial nexus.
No evidence – Bond-jacking.
Issue 16: Did LIPSCOMBE err (or abuse discretion) by compelling
PERKINS to post more Bond?
Record references. Same as Issue 13, including R.116-18, 145, 146, 147,
2.Supp.Tr (all) (and 3.Supp.Tr (all)).
Even if any conditions on Bond were lawfully added, and PERKINS finds
none, Issue 13, did PERKINS ever breach them? See Issues 1 to 6, and “No
evidence standard,” p.30. There has never been any evidence of “transportation;”
Issue 1; hence, there’s never been any evidence of “driving.” Issues 1-6, in
particular Issue 4.
No matter how many times LIPSCOMBE (or STATE) labels and treats
“traveling” as “transportation,” in particular “driving,” Issue 4, nothing about his/
their grave error in perspective changes “travel” into “transportation.” Cf. Lozman.
Compelled responsive/defensive pleading.
Issue 17: Did LIPSCOMBE err (or abuse discretion) by entering a
responsive plea of any nature for PERKINS?
Record references. See same heading in Statement of Facts, p.8.
Consent cannot be compelled, period. Rudzewicz (jurisdiction doesn’t flow
from fraud, undue influence, or overwhelming bargaining power); FED. R. CIV. P.
8(c); TEX. R. CIV. P. 94; Ballard (local rules don’t justify (criminal) Due Process
Appellant’s Principal Brief (PERKINS) 53
No Notice. No commercial nexus.
violations); § 636(a), (c) (“by consent only”); Gonzalez (“If the parties consent”)
(construing § 636(b)).
Compelled consent is the exact antithesis of the very soul of “this state.”
The coercive environment vitiates the very “evidence” it purports to create.
Ohralik (addressing coercion specifically engaged by the legal profession); Bates
(addressing coercion specifically engaged by the legal profession); Escobedo
(coerced confession is not evidence); Miranda (same); 1 PAGE §§ 5.7, 15.11
(coerced will is not evidence); BOGERT § 42 at 434, § 44 at 452 and n.16 (coerced
trust is not evidence); Pollock I, 157 U.S. at 553-54 (1st ¶ of opinion) (non-consent
by even one beneficiary prevents amendment to trust agreement); Arnold (vacated
per Booker) (“evidence” (and never-before-heard-of charges) not presented at trial
and not agreed to at sentencing is (are) inadmissible for sentencing).
So, no respondent may ever be compelled to consent to Notice that has never
happened. In other words, no respondent may ever be compelled to “respond” into
a vacuum. To compel a response is to suggest that there’s something to which to
respond. If STATE or LIPSCOMBE wants a responsive plea, the only way any
conscious respondent is going to do anything but enter a Special Appearance
and/or Plea to the Jurisdiction is by first receiving (timely) STATE’s original
pleading. Then and only then is a responsive plea even procedurally competent.
Substantively, judicially compelled responsive pleading can’t happen until
Appellant’s Principal Brief (PERKINS) 54
No Notice. No commercial nexus.
all jurisdictional issues are fully vetted, on appeal if necessary. 16 There truly is no
need or value in joining issue on the merits via responsive plea where the court has
absolutely no subject matter jurisdiction to reach the merits.
No Personal Jurisdiction
Statutory Challenge – Art. 25.04.
Issue 18: Does Art. 25.04 facially violate Due Process?
R.19, 51-54, 202, 223-26.
Art. 25.04.
In misdemeanors, it shall not be necessary before trial to furnish the accused
with a copy of the indictment or information; but he or his counsel may
demand a copy, which shall be given as early as possible.
Art. 25.04.
PERKINS also challenges that line of cases from at least 1993, see, e.g.,
Aguilar, if not older, that support Art. 25.04.
Notice to a trial court is in no conceivable way Notice to the respondent.
Due Process isn’t fulfilled until STATE informs the “target” that STATE has
16
The appellate process that refuses pre-trial to address subject matter
jurisdiction challenges (especially “new” challenges raised by those who are doing
everything under the sun to mitigate STATE’s, the prosecutors’, the complainant’s,
and the judge’s damages), leaves STATE, the prosecutors, the complainants, and
the judge(s) twisting in the wind.
Appellant’s Principal Brief (PERKINS) 55
No Notice. No commercial nexus.
actually filed a claim. See, e.g., Murphy Bros. (original pleading is filed then
served); 17 O’Grady (notice is required, even in the “criminal” context); Lloyd, 5
U.S. at 366 (“A citation not served is as no citation.”).
How does a defendant obtain a copy of STATE’s original pleading so as to
be able to read it? Either the defendant waives Notice and does STATE’s work for
STATE, finding the information on his own, or else the defendant compels STATE
to satisfy its duty under Due Process to serve at a meaningful time, in a meaningful
manner, on the defendant a copy of what STATE has filed.
An elementary and fundamental requirement of due process in any
proceeding which is to be accorded finality is notice reasonably calculated,
under the circumstances, to apprise interested parties of the pendency of the
action and afford them the opportunity to present their objections.
Mullane, 339 U.S. at 314. A failure of Notice violates “the most rudimentary
demands of due process of law.” Armstrong, 380 U.S. at 550 (Notice, meaningful
time, meaningful manner. 380 U.S. at 552).
See also Milliken (Notice, opportunity to be heard, fair play, substantial
justice); Internat’l Shoe (Notice, opportunity to be heard); Sniadach (Notice,
opportunity to be heard); Fuentes v. Shevin (Notice, meaningful time); N. Ga.
Finishing (Notice, opportunity to be heard, even for corporations (i.e., the
shareholders)); Burns (Notice, opportunity to be heard, on upward departure);
17
Murphy Bros. is a civil case, but all cases are non-cases, i.e., civil, until the
plaintiff, here “State,” proves standing and Notice.
Appellant’s Principal Brief (PERKINS) 56
No Notice. No commercial nexus.
Hamdi (denial of access and of opportunity to be heard); Jones (Notice,
opportunity to be heard).
Burden-relieving.
Issue 19: Did LIPSCOMBE relieve STATE of its procedural burden?
Record references. See “Burden-relieving” in Statement of Facts, p.10. See
also Issues 8 and 18.
Yes. And in train-car loads. This Record contains no Return of
Process/Service.
What’s wrong with this picture? – Witness Subpoena’s have “Return of
Service” written into the form, R.108-15, 168-75, but STATE’s original pleading
need not be served on the respondent.
Indelibly scarred into the mind is the reality not only that LIPSCOMBE
drafted CAMPBELL to be a process server but also that CAMPBELL accepted the
role. 3.Tr.11(17-18); 4.Tr.71(6-24).
That raises a few questions. First, may CAMPBELL be so conscripted? The
answer is, “Of course not!” CAMPBELL, “a participant in the proceeding,” is
disqualified. Art. 24.01(b)(2). See also TEX. R. CIV. P. 103.
Secondly, was CAMPBELL’s consent effective? No. It isn’t in writing.
Art. 24.01(c).
Appellant’s Principal Brief (PERKINS) 57
No Notice. No commercial nexus.
Thirdly, did CAMPBELL actually serve anything? No. The Record shows
that CAMPBELL pointed out to PERKINS that STATE’s original pleadings were
in the Record and surmised that PERKINS read them. There’s no evidence,
coupled with no cross-examination. Also, there’s nothing in the Record indicating
that CAMPBELL delivered any paperwork to PERKINS.
See also TEX. RS. CIV. P. 15, 16, 17, 21a, 21b, 99-107, 103, in particular.
By not compelling STATE to serve its original pleading, LIPSCOMBE
relieved STATE of its Due Process burden to serve Notice. See Issue 18. Burden-
relieving, a concept normally associated with the merits but here associated with
Notice/Service, violates Due Process. See Issue 8.
Panel-related matters
Issue 20: Did LIPSCOMBE err (or abuse discretion) by sending the matter
to the panel at all?
Record references. See Statement of Facts, “Submission of anything to the
advisory panel,” p.10.
See Issues 1 to 19.
At issue is the province of the court versus that of the panel. Jurisdictional
issues are questions of law. The panel has no more authority to presume
jurisdiction than a court and no authority at all to determine jurisdiction where the
Appellant’s Principal Brief (PERKINS) 58
No Notice. No commercial nexus.
jurisdictional facts are wholly uncontested.
“Personal jurisdiction is a question of law for the court, even if it requires
resolving questions of fact.” Michiana Easy Livin’ Country, Inc., 168 S.W.3d at
790-91. “Whether a court has subject matter jurisdiction is a question of law.” Tex.
Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d at 226.
[W]hether undisputed evidence of jurisdictional facts establishes a trial
court's jurisdiction is also a question of law. However, in some cases,
disputed evidence of jurisdictional facts that also implicate the merits of the
case may require resolution by the finder of fact. See [Gates, 291 S.W. at
949]; [Gentry, 21 S.W. at 570] (“Certainly the court has the right to hear the
necessary evidence to enable it to decide as to whether or not it has power to
try the case it is sought to have it adjudicate, whether the allegations
disclosing such want of jurisdiction appear in the petition of the plaintiff, or
in the plea to the jurisdiction by the defendant.”))]; see also [Valentin, 254
F.3d at 363 n.3] (observing that in certain situations, the predicate facts can
be so inextricably linked to the merits of the controversy that the district
court may “defer resolution of the jurisdictional issue until the time of
trial”); [Cameron, 131 F.3d at 1170] (“Whether a district court has subject
matter jurisdiction is a question for the court, not a jury, to decide, even if
the determination requires making factual findings, unless the jurisdictional
issue is inextricably bound to the merits of the case.”); [Williamson, 645
F.2d at 413 n.6, 416 n.10] (suggesting that a federal district court’s role in
determining jurisdictional facts may be more limited in cases in which the
jurisdictional attack implicates the merits of plaintiff’s cause of action). In
this case, we address a plea to the jurisdiction in which undisputed evidence
implicates both the subject matter jurisdiction of the court and the merits of
the case.
Id.
[I]f a plea to the jurisdiction challenges the existence of jurisdictional
facts, we consider relevant evidence submitted by the parties when necessary
to resolve the jurisdictional issues raised, as the trial court is required to do.
See Bland, 34 S.W.3d at 555 [(confining the evidentiary review to evidence
Appellant’s Principal Brief (PERKINS) 59
No Notice. No commercial nexus.
that is relevant to the jurisdictional issue)]. When the consideration of a trial
court’s subject matter jurisdiction requires the examination of evidence, the
trial court exercises its discretion in deciding whether the jurisdictional
determination should be made at a preliminary hearing or await a fuller
development of the case, mindful that this determination must be made as
soon as practicable. Id. at 554. Then, in a case in which the
jurisdictional challenge implicates the merits of the plaintiffs’ cause of
action and the plea to the jurisdiction includes evidence, the trial court
reviews the relevant evidence to determine if a fact issue exists. The United
States Supreme Court and all of the federal circuits have authorized federal
district courts to consider evidence in deciding motions to dismiss for lack of
subject matter jurisdiction. See FED. R. CIV. P. 12(b)(1); [Land, 330 U.S. at
735], overruled by implication on other grounds by [Larson, 337 U.S. 682]
(observing that as a general rule, district courts have authority to inquire
“into the facts as they exist” “by affidavits or otherwise” as well as the
pleadings when determining whether the court has subject matter
jurisdiction). [n.6, discussing federal standards, omitted]. If the evidence
creates a fact question regarding the jurisdictional issue, then the trial court
cannot grant the plea to the jurisdiction, and the fact issue will be resolved
by the fact finder. However, if the relevant evidence is undisputed or fails to
raise a fact question on the jurisdictional issue, the trial court rules on the
plea to the jurisdiction as a matter of law.
Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d at 227-28.
LIPSCOMBE and STATE opposed PERKINS’s jurisdictional challenge and
facts with politically-motivated ad hominem and facially errant “legal” positions,
not evidence. There is no dispute that STATE never served PERKINS with
STATE’s original pleading. See, e.g., 3.Tr.10(13) to .11(20); 4.Tr.71(6-24),
.72(17-20). Issues 8 and 19. There is no dispute that PERKINS was at no time (1)
removing anyone or anything (2) from one place to another (3) for hire (4) in “this
state.” There simply is “no evidence” of “transportation,” including no evidence of
Appellant’s Principal Brief (PERKINS) 60
No Notice. No commercial nexus.
any passenger manifest, bill of lading, or hire. Whole Record; 4.Tr.39(20) to
.41(7), .49(7) to .51(4).
Where an advisory panel can’t ignore clear, positive, direct, non-
contradicted facts, Prairie View A&M Univ., 180 S.W.3d at 710-11 (citing Keller,
168 S.W.3d at 820), then neither can a court.
There being no “transportation,” LIPSCOMBE had no subject matter
jurisdiction. There being no service of STATE’s original pleading(s),
LIPSCOMBE had no personal jurisdiction. There being no jurisdiction, facially,
as a matter of law, there simply was no triable matter, here, ever. Cf. Wesbrook, 29
S.W.3d at 111-112 (homicide context); Hicks, 299 S.W.3d at 258 (“Courts have
consistently held that in the event there is an unambiguous contract and there is no
dispute as to the facts that may constitute a breach, it is error to submit the case to
the jury.”). Here, there is no commercial nexus, at all, and that conclusion is a
matter of law arising from the undisputed facts recited in this Issue.
LIPSCOMBE should have held a jurisdictional facts hearing, and where
STATE perpetuated its addiction to “no evidence of ‘transportation,’” he should
have granted the Spec. Appearance and/or Plea/Juris. If he felt the need to jack
with PERKINS, running up the bill, by waiting until trial to have STATE confess
“no evidence,” then he should have granted one or the other of PERKINS’s trial-
time motions to dismiss. He denied everything, refusing to recognize that he never
Appellant’s Principal Brief (PERKINS) 61
No Notice. No commercial nexus.
had authority to do anything but dismiss.
Fair trial – Unfairly biasing the panel.
Issue 21: Did LIPSCOMBE unfairly bias the panel with his errant legal
argument about what “transportation” means?
Record references. See “Fair trial – Unfairly biasing the panel,” in the
Statement of Fact, p.11. Key are 4.Tr.6(6-14), .50(12) to .51(3), and .56(19) to
.57(6). The formal objections to “instructions” occurred during the jury charge
phase. During trial, which is the timing of the “instructions,” “corrections,” and
discussions at issue in these three Issues, no direct objection was asserted. Since
LIPSCOMBE is simply “dead wrong” about the law, the objection is self-
preserving by means of PERKINS’s having asserted the correct standard.
See Issues 1 to 8.
“If an instruction might aid the jury in answering the issues presented to
them, or if there is any support in the evidence for an instruction, the instruction is
proper.” La.-Pac. Corp., 976 S.W.2d at 676.
“An instruction is proper if it (1) assists the jury, (2) accurately states the
law, and (3) finds support in the pleadings and evidence.” Columbia Rio Grande
Healthcare, L.P., 284 S.W.3d at 855-56.
See also TEX. RS. APP. P. 44.1(a) (appellate courts), 61.1 (Supreme Court).
Appellant’s Principal Brief (PERKINS) 62
No Notice. No commercial nexus.
“Charge error is generally considered harmful if it relates to a contested, critical
issue.” Columbia Rio Grande Healthcare, 284 S.W.3d at 856.
Key here is that the issues are contested, starting with jurisdiction; the law is
contested; the definitions are contested; thus STATE’s factless legal conclusions
masquerading as “facts” are contested. The facts are not contested. Procedurally,
STATE nowhere contested PERKINS’s evidence that STATE never served
PERKINS. Issues 18, 19. STATE’s position, effectively asserted via
LIPSCOMBE, is that STATE doesn’t have to serve PERKINS with its original
pleading(s). Substantively, STATE nowhere proved up “transportation.” Issues 1,
8. There is no passenger manifest, no bill of lading, and no hire. STATE’s
position, effectively asserted via LIPSCOMBE, is that STATE doesn’t have to
prove “transportation” for any matter allegedly arising from the Transp. Code.
How can any instruction from LIPSCOMBE regarding “transportation”
“assist” the panel when it’s “dead wrong” about the law and based on no relevant
facts whatsoever?
Appellant’s Principal Brief (PERKINS) 63
No Notice. No commercial nexus.
Issue 22: Did LIPSCOMBE unfairly bias the jury with this opening
remarks about transportation licensure mixed with insurance?
Record references. See “Fair trial – Unfairly biasing the panel,” in the
Statement of Fact, p.11. Key is 3.Tr.16(10) to .17(8).
See Issues 1 to 8, 20 and 21.
As regards “driving,” what LIPSCOMBE says is almost completely correct.
“Driving” is privileged, commercial activity. That’s correct. “Driving” is not a
“right.” That’s correct. “Drivers” need “licenses.” That’s correct. “Drivers” need
“insurance.” That’s correct.
LIPSCOMBE’s problem is that he refuses to recognize that he’s bought into
the scam not the reality. “Driving” is not generic activity, i.e., “traveling.”
“Driving” is specifically that commercial activity where the one behind the wheel
gets paid (in “funny money”) to take someone or something from one place to
another. PERKINS has never “driven,” and he’s certainly not done any “driving”
at any time relevant to the matter at bar.
While a “driver” agrees to get and maintain insurance, that insurance
requirement has absolutely, positively nothing under the sun to do with the
“license.” “Licensure” has nothing to do with “be[ing] responsible in case they
have a boo boo.’” 3.Tr.16(10) to .17(8). “Licensure,” universally (throughout “this
state”) has to do with one thing and only one thing: getting paid in “funny money.”
Appellant’s Principal Brief (PERKINS) 64
No Notice. No commercial nexus.
If it’s a regulated industry in “this state,” then getting paid with “funny money,”
the recognized “currency” in/of “this state,” happens legally only where the
recipient has that “license.” That is the sole reason to have a “license,” for any
industry that “requires” a “license,” namely getting paid with “funny money.”
That’s it. That’s the sole reason.
“Insurance” has to do with the boo boos, and only when one engages in that
line of commerce called “transportation” has one agreed to get/maintain insurance.
For the standard for what constitutes a competent instruction, see Issue 21.
Since it’s of no assistance to a panel to hear the judge totally corrupt the legal
standards, and that in the face of no evidence even justifying submitting the matter
to the panel, at all, Issue 20, it follows that the “instruction” unlawfully biased the
panel against PERKINS.
Issue 23: Did LIPSCOMBE unfairly bias the panel with his errant legal
argument during PERKINS’s case-in-chief?
Record references. See “Fair trial – Unfairly biasing the panel,” in the
Statement of Fact, p.11. Key is 49(2) to .51(3).
See Issues 1 to 8, and 20 to 22.
LIPSCOMBE was 100% wrong about the applicable legal standards in this
matter from Day One. His lying to the panel about the law constitutes an unfair act
Appellant’s Principal Brief (PERKINS) 65
No Notice. No commercial nexus.
of biasing them against PERKINS.
This trial was about as fair as any Star Chamber could be. The matter was
over before it started. LIPSCOMBE presumed commercial intent, thus effectively
presumed guilt, and it showed from Day One.
Since it’s of no assistance to a panel to hear the judge totally corrupt the
legal standards, and that in the face of no evidence even justifying submitting the
matter to the panel, at all, Issue 20, it follows that the “instruction,” “correction,”
upbraiding during PERKINS’s case-in-chief unlawfully biased the panel against
PERKINS.
Jury instructions.
Issue 24: Did LIPSCOMBE err (or abuse discretion) by failing to define
“transportation” for the panel?
Record References. See “Jury Instructions” in Statement of Facts, p.11.
See Issues 1 to 8, 20, and 21.
How in blue blazes can anyone on the face of this planet possibly even
remotely begin to evaluate the evidence in a “transportation” matter without having
any idea, at all, what “transportation” is/means???
The scam is so well marketed that even that excused panelist thought
PERKINS was crazy. 4.Tr.123(6-11). The reality is that PERKINS was the only
Appellant’s Principal Brief (PERKINS) 66
No Notice. No commercial nexus.
one in that proceeding not drinking from the poisoned well. And, the only way
anyone is ever in a million years going to understand that is for the term
“transportation” formally and officially to be defined per PERKINS’s four-element
version or per the Supreme Court’s “three”-element version. Lozman (Part IV –
“carrying passengers or cargo”). That fourth element, “in ‘this state,’” is actually
supplied; it’s just hidden by the fact that Lozman is a water-based maritime matter.
The Whole of this Record proves the point that “transportation” must be
overtly defined in order that anyone, other than PERKINS, have a clue as to what’s
at issue. LIPSCOMBE’s failure to define “transportation,” especially after the
law-defying harangue he dished out, left a very false impression in the minds of the
panelists. That false impression didn’t assist them; it’s flat out the wrong law; and
there were absolutely no facts supporting any “instruction” he offered in refutation
of PERKINS’s position. Issue 21.
Issue 25: Did LIPSCOMBE err (or abuse discretion) by failing to define
“drive,” “operate,” and “vehicle” for the panel?
Record references. See “Jury Instructions” in Statement of Facts, p.11.
See Issues 1 to 8, 20, 21, and 24.
In general, this system is so semantically driven and so counter-intuitive to
the popular brainwashing that without very specific, even repeated, guidance on
Appellant’s Principal Brief (PERKINS) 67
No Notice. No commercial nexus.
the semantics, there’s no way PERKINS could obtain a fair trial. The “guilty
without evidence” verdict proves that the panel was left totally without guidance.
LIPSCOMBE’s failure to define “drive,” “operate,” and “vehicle,”
especially after the law-defying harangue he dished out, left a very false
impression of the legal standard in the minds of the panelists. That false impression
didn’t assist them; it’s flat out the wrong law; and there were absolutely no facts
supporting any “instruction” he offered in refutation of PERKINS’s position. Issue
21.
Issue 26: Did LIPSCOMBE err (or abuse discretion) by failing to explain
the algebraic connection between “transportation” and the key
commercial, semantic terms of legal conclusion?
Record references. See “Jury Instructions” in Statement of Facts, p.11.
See Issues 24 and 25.
Definitions, alone, are not enough to complete the necessary and necessarily
wicked paradigm shift imposed upon the panel members. Defining the terms and
then working through the statutory algebra at each step, in a manner very similar to
the way PERKINS has presented the terms from the outset, is the only way the
panelists are going to come to understand what’s at issue.
To hit the highlights, “transportation,” a term of legal conclusion, has four
elements: (1) removing people and/or property (2) from one place to another (3)
Appellant’s Principal Brief (PERKINS) 68
No Notice. No commercial nexus.
for hire (4) in “this state.” Issue 1. “Vehicle,” a term of legal conclusion, depends
on “transportation.” Without evidence of “transportation” use, there is no
“vehicle.” Issue 2. “Motor vehicle,” a term of legal conclusion, depends on
“transportation.” Without evidence of “transportation” use, there is no “vehicle;”
hence, no “vehicle” with a motor. Issue 3. “Drive,” a term of legal conclusion,
depends on “transportation.” Without evidence of “transportation” use, there is no
“vehicle;” hence, no “motor vehicle;” hence, no being behind the wheel of a
“motor vehicle.” Issue 4. “Operate,” a term of legal conclusion, depends on
“transportation.” Without evidence of “transportation” use, there is no “vehicle;”
hence, no “motor vehicle;” hence, no being behind the wheel of either a “vehicle”
or a “motor vehicle.” Issue 5.
Thus, where there is no hire, there is no “transportation;” hence, no
“vehicle,” no “motor vehicle,” no “driving,” and no “operating.”
There is no evidence of hire in this entire Record. Issue 1.
A pre-trial evidentiary hearing on jurisdictional facts would have ended this
with a minimum of systemic exposure. But, now, PERKINS stands robbed (use of
force – color of law) of ten thousand “dollars,” and “charged and convicted” of
(“My God you guys. My God!”, habitual) DWI, 4.Tr.106(6) to .107(9), .111(9) to
.114(8), .117(1) to .119(6), and for doing what? Asserting his right not to contract
and his right not to engage in any particular line of commerce. Thus, the time is
Appellant’s Principal Brief (PERKINS) 69
No Notice. No commercial nexus.
clearly upon us to end STATE’s habitual drunkenness and tyrannical lawlessness.
Issue 27: Did LIPSCOMBE err (or abuse discretion) by failing to include
any of PERKINS’s proposed Instructions?
Record references. See Issues 24 to 26. 4.Tr.64(5) to .75(5); 6.Tr.77-115.
See Issues 1 to 8. Until the semantics are defined and connected for the
panelists, i.e., until this scam is exposed for exactly what it is, the marketed
misunderstanding supplants the applicable legal concepts and principles. That
exposure benefits not only the panelists but also the complainants, the enforcement
officers (if different from the complainants), the prosecutors, and the judges.
PERKINS’s Proposed Instructions would have assisted (greatly) the
panelists, because it’s the law of “this state,” and the Proposed Instructions had a
full Record of facts and evidence justifying their inclusion/assertion. Issue 21. A
court that recognizes the law, thus PERKINS’s Proposed Instructions, is a court
that would have granted the Spec. Appear., obviating the need for Instructions.
Issue 20.
Appellant’s Principal Brief (PERKINS) 70
No Notice. No commercial nexus.
Trial/Evidence
Issue 28: Did LIPSCOMBE err (or abuse discretion) by admitting
STATE’s Ex. 1?
R.86-107; 3.Tr.7.11 to .9(6), .13(14-20); 4.Tr.35(6) to .36(25); 6.Tr.5-7.
See also “STATE’s Ex. 1,” in the Statement of Facts, p.12.
See Issues 1 to 8, 18, and 19.
STATE offered no evidence of “transportation” and never served PERKINS;
hence, LIPSCOMBE never had jurisdiction, meaning there should not have been
any trial, at all. The existence of trial doesn’t render STATE’s Ex. 1 relevant any
more than “self-authentication,” alone, renders it relevant.
Since PERKINS wasn’t “driving” at any time relevant to this matter, there’s
no relevance in any assertion of a “driving record.” To admit a “driving record” is
to suggest to the panel that there’s “driving” going on, where there’s no evidence
of any such commercial activity. The document contains no probative value for
this trial whatsoever, and it’s admission was facially and extremely prejudicial.
Appellant’s Principal Brief (PERKINS) 71
No Notice. No commercial nexus.
Issue 29: Did LIPSCOMBE err (or abuse discretion) by overruling
PERKINS’s objections to the commercial semantics?
Record reference. See “The commercial semantics” in Statement of Facts,
p.13.
See Issues 1 to 8, 17, and 24 to 27.
To overrule those objections is to compel consent. Issue 17.
“Transportation”-matter “trials” aren’t reviews of historical fact. They’re
“negotiations.” Thus, to overrule an objection to the semantics isn’t to address
evidence; it’s to compel consent to terms of legal conclusion for which there’s no
foundational facts and, of course, no consent. It’s to fail to realize what is truly at
issue in the commercial-nexus dependent, non-Penal-Code matters. Jurisdiction
cannot be founded in fraud (or undue influence, duress, etc.). Rudzewicz.
Appellant’s Principal Brief (PERKINS) 72
No Notice. No commercial nexus.
Void Judgment
No evidence – conviction.
Issue 30: Did LIPSCOMBE err (or abuse discretion) by accepting the
advisory panel’s recommendation on guilt?
Record references. See “No evidence – conviction,” p.13. See also “No
evidence standard,” p.30.
See Issues 1 to 8, 12, 16, 17, and 19.
STATE never proved “transportation.” Issue 1. That ended the matter.
Lack of subject matter jurisdiction renders a judgment void, rather than
merely voidable, so that it may be challenged either directly or collaterally.
See and compare, [Browning, 698 S.W.2d 362] (on collateral attack
judgment was not shown to have been rendered by a court without
jurisdiction). Subject matter jurisdiction is e
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