The opinion
WR-83,689-01
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 8/5/2015 9:31:16 AM
1 NO. ________________ Accepted 8/5/2015 9:50:48 AM
ABEL ACOSTA
2
CLERK
3
RECEIVED
4 AT THE COURT OF CRIMINAL APPEALS COURT OF CRIMINAL APPEALS
8/5/2015
5 TEXAS ABEL ACOSTA, CLERK
6
7
8 In Re Karl Schonwalder
9
10
11
12
13 Original Proceeding and Emergency Relief
14 From the 397th District Court of Grayson County
15
16
17
18
19 WRIT OF HABEAS CORPUS
20
21
22 Karl Schonwalder
23 2119 56th St
24 Lubbock, Tex [79412]
25 806-438-1976
26 Unrepresented
27
28 I am a private party with no commercial nexus with the state.
29 I am receiving harm by legal proceedings and am without a remedy at law -
30 requiring "Writ of Habeas" on Constitutional grounds.
31
32 Notice for Clerk
33 Special circumstances apply due to extraordinary circumstances - Relator should not be charged a fee.
34
35 Dorsaneo's § 152.04[5][c] How to Commence Original Proceeding - Whether filed in the court of appeals or the Texas
36 Supreme Court, the petition must be accompanied by a filing fee [Tex. R. App. P. 5 (unless excused by statute or rule, party
37 must pay fees set by statute or Texas Supreme Court order)...
38
39 28 USC § 1604 - Immunity of a foreign state from jurisdiction.
40 Subject to existing international agreements to which the United States is a party at the time of enactment of this Act a foreign
41 state1 shall be immune from the jurisdiction of the courts of the United States and of the States except as provided in
42 sections 1605 to 1607 of this chapter.
1
28 USC § 1603 Definitions - (a) A "foreign state" ...(b)(2) which is an organ of a foreign state [Organ: constitutional
reference to the founders and their property] ...and (3) which is neither a citizen of a State of the United States as defined in
1322 [Territories]...nor created under the laws of any third country. (c) The “United States” includes all territory and waters,
continental or insular, subject to the jurisdiction of the United States. (d) A “commercial activity” means either a regular course
of commercial conduct or a particular commercial transaction or act. The commercial character of an activity shall be
determined by reference to the nature of the course of conduct or particular transaction or act, rather than by reference to its
purpose. (e) A “commercial activity carried on in the United States by a foreign state” means commercial activity carried on by
such state and having substantial contact with the United States.
WRIT OF MANDAMUS Page 1 of 17
Case No: ____________
1 (Any perceived use of your codes is for your reference purposes only, considered as "c.f." and not meant to create any presumption of benefit,
2 legal duty or liability on my part, but to show that your beliefs coincide with my beliefs; all legal presumptions notwithstanding and no
3 process, procedure, fee or otherwise by "Relator" shall be construed to traverse standing. Any use of the English language is not meant to
4 be phonetical, or disparaging to Demandant but has the meaning and intent as given by the Demandant).
5 CLERK'S NOTICE
6 This record is not to be misconstrued as a pro se filing. If the recipient clerk is unable to process this pleading, please direct it to the proper
7 official. If this case is in an improper jurisdiction, venue, or court, the court will inform "Karl Schonwalder" of such proper jurisdiction,
8 venue or court, and MOVE THE CASE to a court of proper jurisdiction or venue, such that proper and complete remedy may be provided. In
9 the case of any denial of remedy, this court will inform the "Wrongfully Accused" of the proper court and procedure to obtain relief. If the
10 judge finds cause of lack of authority to provide remedy, it shall be documented in writing with a finding of fact and conclusions at law. The
11 Writ of Habeas Corpus being necessary to establish standing for First Amendment Redress, can be done in chambers without oral argument,
12 shall be heard immediately to establish proper standing to obtain complete remedy, whether or not it be after hours, as the court is always
13 open.
14 NOTICE OF FEIGNED ACTION,
15 "ORIGINAL" WRIT OF HABEAS CORPUS[2]
16 (prerogative writ and not under code) 3,
17 c.f. Federal Question [4]
18 1. TABLE OF CONTENTS
19 1. TABLE OF CONTENTS ....................................................................................................................................................... 2
20 2. IDENTITY OF PARTIES AND COUNSEL ......................................................................................................................... 3
21 3. STATEMENT OF JURISDICTION ...................................................................................................................................... 3
22 3.1.1 Jurisdiction Deprives Relator of Due Process .......................................................................................................... 4
23 4. NOTICE ................................................................................................................................................................................. 4
24 4.1 Notice of Intent to File For Removal 4
25 4.2 JUDICIAL NOTICE 5
26 5. ISSUES PRESENTED ........................................................................................................................................................... 5
27 5.1 Demand to Expand the Record or Evidentiary Hearing by a Judge 5
28 5.2 Color of Law 6
29 5.3 No Probable Cause 6
30 5.4 No Duty to Produce ID 7
31 5.5 No Commercial Nexus 7
32 5.6 No Authority to Regulate 7
33 5.7 Law Does not Provide for the Impossible 8
34 5.8 Simulated Legal Process 8
35 5.8.1 Failure to Identify ..................................................................................................................................................... 8
36 5.8.2 Evading Arrest.......................................................................................................................................................... 8
37 5.9 Justifiable Self-Defense 9
38 5.10 Aggravated Kidnapping 10
39 5.11 Dereliction of Duty 10
40 5.11.1 Violation of Objective ........................................................................................................................................ 10
41 5.11.2 Violation of Nonresident Violator Compact of 1977 ......................................................................................... 10
42 5.12 Non-Statutory Habeas Corpus 11
43 5.12.1 Standard Form Not Required .............................................................................. Error! Bookmark not defined.
44 5.12.2 Denial of Access to the Courts ........................................................................................................................... 12
2
c.f. FED RULES OF CIVIL PROC. RULE 17. PROCEDURE IN AN ORIGINAL ACTION. 2. The form of pleadings
and motions prescribed by the Federal Rules of Civil Procedure is followed. In other respects, those Rules and the
Federal Rules of Evidence may be taken as guides.
3
Under Demand or Requirement - Not a petition (Exhaustion of State remedies).
4
c.f. 28 USC § 1331.
WRIT OF MANDAMUS Page 2 of 17
Case No: ____________
1 5.12.3 Objection to Court Acting as Agency ................................................................................................................ 12
2 5.12.4 Fraud Upon the Court ........................................................................................................................................ 13
3 5.12.5 Denial of counsel ............................................................................................................................................... 13
4 5.12.6 Fundamental Error - Not Amenable to Process ................................................................................................. 13
5 5.13 In the Alternative - Administrative Remedies Not Exhausted 14
6 5.13.1 Or (Declaratory Judgment) ................................................................................................................................ 14
7 5.14 In the Alternative - Court Not Vested With Jurisdiction 15
8 6. DEMAND FOR RELIEF ..................................................................................................................................................... 15
9 7. VERIFICATION .................................................................................................................................................................. 16
10 8. VERIFICATION OF SERVICE .......................................................................................................................................... 16
11
12
13
14 Enclosures/attachments:
15
# Description # Pages
16
17 2. IDENTITY OF PARTIES AND COUNSEL
18 RELATOR:
19 1. Karl Alan Schonwalder, a man and unrepresented5
20
21 WRONGDOERS:
22 2. KEN PAXTON (A.G.)
23 3. Rick Webber (acting as WHITEWRIGHT POLICE OFFICER)
24 4. "John Doe" A-Z (acting as WHITEWRIGHT POLICE OFFICER)
25 5. Steve McCraw, (acting as Director of DPS)
26 6. Larry Atherton, (acting as Magistration Judge)
27 7. Donnie Carter, (acting as Assistant D.A.)
28 8. Brian Gary, (acting as Trial Judge)
29 9. (Addresses given under Verification of Service)
30 3. STATEMENT OF THE CASE
31 1. The nature of this underlying proceeding is a suit for freedom of the Relator. Relator is currently being
32 held in the Grayson County Detention Center. Jurisdiction has been challenged in the current
33 proceedings, JUDGE Brian Gary presiding, to no avail. Brian Gary acting under color, has further
34 restricted motions to be filed and denied all motions entered by Relator. Relator has no other remedy
35 available or has exhausted all remedies.
5
Purported appointment of representation by SCOTT SMITH ATT in error.
WRIT OF MANDAMUS Page 3 of 17
Case No: ____________
1 4. STATEMENT OF JURISDICTION
2 1. "Wrongfully Accused" is a visitor at Grayson County Texas with only a technical presence.
3 Wrongdoers are all residents in Texas and the events happened at Grayson County Texas.
4 1. This court does not have jurisdiction over the Relator because the Relator is not amenable to process
5 issued by the courts of Texas in this instance because:
6
7 a. The Relator is not a resident of Texas and is not required to maintain and does not maintain
8 a registered agent for service in Texas.
9
10 b. The Relator does not now engage and has not engaged in business in Texas or committed
11 any tort, in whole or in pail, within the state.
12
13 c. The Relator does not maintain a place of business in Texas and has no employees,
14 servants, or agents within the slate.
15
16 d. The Relator has no substantial connection with Texas arising from any action or conduct of
17 the Relator purposefully directed toward Texas
18
19 e. The plaintiff’s claims do not arise from and are not related to any activity
20 conducted by the Relator in Texas.
21
22 f. The Relator has no continuing and systematic contacts with Texas).
23
24 4.1.1 Jurisdiction Deprives Relator of Due Process
25 2. The assumption of jurisdiction by the court over the Relator and his property would offend traditional
26 notions of fair play and substantial justice, depriving the Relator of due process as protected by the
27 Constitution of the United States of America.
28 3. For these reasons, the Relator requires that the court require the Respondents to produce the
29 information being used to make their legal determination of jurisdiction and hold a hearing for that
30 purpose and if it is not substantiated, the court accept this notice and discharge the entire proceeding
31 for want of jurisdiction.
32 5. NOTICE
33 5.1 Notice of Federal Filing
34 1. Relator has filed a claim into the United States Court, Eastern District of Texsas, Cause # 4:15-CV-
35 108, which at this time has not been ruled on. However Relator believes that it may be a prerequisite
36 to file this claim in the State court, prior to any remedy available in the United States Court, for
37 exhaustion of remedies.
WRIT OF MANDAMUS Page 4 of 17
Case No: ____________
1 2. Further, the right is hereby retained to file for removal to federal court within 30 days of
2 summons[6][7] or upon the states election to files any legitimately applicable or justicable charges.
3
4 5.2 JUDICIAL NOTICE
5 2. Judicial notice is hereby given that this state must take judicial notice of the Constitution, common
6 law, Civil law, and statutes of every state, and other jurisdiction if the United States. See Rule 201
7 Federal Rules of Evidence.
8 6. ISSUES PRESENTED
9
10 6.1 Demand to Expand the Record or Evidentiary Hearing by a Judge
11 3. Relator believes that there has been a fatal omission of evidence on the record, not only does he hold
12 this belief but the following federal statutes also hold the same position, and are mentioned thru the
13 supremacy clause for your convenience and any listing of statutes is not meant to be taken as a
14 position held by the Relator. Demand is hereby made to expand the record c.f.:
15 [28 USC § 2254 - Rule 7. Expanding the Record
16 (a) ...the judge may direct the parties to expand the record ...
17 ... to enable the judge to dispose of some habeas petitions ... without ...an evidentiary hearing. ..., by far the majority
18 require an evidentiary hearing. ...In some instances these hearings were necessitated by slight omissions in the state
19 record which might have been cured by the use of an expanded record.
20 Authorizing expansion of the record will, hopefully, eliminate some unnecessary hearings. The value of this approach
21 was articulated in Raines v. United States, 423 F.2d 526, 529–530 (4th Cir. 1970):
22 Unless it is clear from the pleadings and the files and records that the prisoner is entitled to no relief, the statute makes
23 a hearing mandatory. We think there is a permissible intermediate step that may avoid the necessity for an expensive
24 and time consuming evidentiary hearing... It may instead be perfectly appropriate, depending upon the nature of the
25 allegations, for the district court to proceed by requiring that the record be expanded to include letters, documentary
26 evidence, and, in an appropriate case, even affidavits. United States v. Carlino, 400 F.2d 56 (2nd Cir. 1968); Mirra v.
27 United States, 379 F.2d 782 (2nd Cir. 1967); Accardi v. United States, 379 F.2d 312 (2nd Cir. 1967).
28 In Harris v. Nelson, 394 U.S. 286, 300 (1969), the court said:
6
[Supremacy clause] F.R.C.P., Rule 4. Summons, Personal Jurisdiction, (1) In General. Serving a summons or filing a
waiver of service establishes personal jurisdiction over a Relator: (A) who is subject to the jurisdiction of a court of general
jurisdiction in the state where the district court is located. ...
Notes, Personal Jurisdiction, Purposes of Revision. The general purpose of this revision is to facilitate the service of the
summons and complaint. The revised rule explicitly authorizes a means for service of the summons and complaint on any
Relator. While the methods of service so authorized always provide appropriate notice to persons against whom claims are
made, effective service under this rule does not assure that personal jurisdiction has been established over
the Relator served.
7
RULES OF EVIDENCE, Rule 101 Title and Scope
(b) Scope. Except as otherwise provided by statute, these rules govern civil and criminal proceedings (including examining
trials before magistrates) in all courts of Texas, except small claims courts.
(c) Hierarchical Governance in Criminal Proceedings. Shall be: the Constitution of the United States, those federal statutes
that control states under the supremacy clause, the Constitution of Texas, the Code of Criminal Procedure and the penal code,
civil statutes (municipal law), these rules, and the common law. In consistency removed by reasonable construction.
WRIT OF MANDAMUS Page 5 of 17
Case No: ____________
1 At any time in the proceedings ... upon cause shown by the petitioner, it may ... authorize such proceedings
2 [evidentiary hearing].
3
4 Rule 8. Evidentiary Hearing
5 (a) ...the judge must review the ... records of state-court proceedings, and any materials submitted under Rule 7 to
6 determine whether an evidentiary hearing is warranted.
7 (c) ...The judge must conduct the hearing as soon as practicable...
8
9 In situations in which an evidentiary hearing is not mandatory, the judge may nonetheless decide that an evidentiary
10 hearing is desirable:
11 The purpose of the test is to indicate the situations in which the holding of an evidentiary hearing is mandatory. In all
12 other cases where the material facts are in dispute, the holding of such a hearing is in the discretion of the district
13 judge. 372 U.S. at 318
14 ...but in unusual cases the court may grant the relief sought without a hearing. This includes immediate release
15 from custody...
16 Subdivision (b) provides that a magistrate, when so empowered by rule of the district court, may recommend to the
17 district judge that an evidentiary hearing be held or that the petition be dismissed, provided he gives the district judge
18 a sufficiently detailed description of the facts so that the judge may decide whether or not to hold an evidentiary
19 hearing. This provision is not inconsistent with the holding in Wingo v. Wedding, 418 U.S. 461 (1974), that the
20 Federal Magistrates Act did not change the requirement of the habeas corpus statute that federal judges
21 personally conduct habeas evidentiary hearings, and that consequently a local district court rule was invalid insofar
22 as it authorized a magistrate to hold such hearings.]
23
24 There are no facts or evidence on the record by the state that "Wrongfully Accused" is under the
25 particular statutory code in this instance. This "slight omission" is a fatal defect in the state's
26 prosecution. "Wrongfully Accused" has the conviction that no evidence exist and strict proof is
27 demanded thereof. Due to the unusual circumstances of this case, immediate release is proper.
28 6.2 Color of Law
29 1. "Wrongfully Accused" is in custody under or by color, in violation of the Constitution of the United
30 States; He, being a citizen of a foreign state and domiciled therein is in custody for an act which
31 depend upon the law of nations [8].
32 6.3 No Probable Cause
33 4. On or about February 8, 2015 around 12:30 AM "Wrongfully Accused" was traveling from a religious
34 Shabbat meeting, in his private property, whereupon "Wrongfully Accused" was placed under
35 constructive arrest thru the use of emergency procedures by the alleged officers.
8
c.f. 28 USC § 2241 - Power to grant writ.
WRIT OF MANDAMUS Page 6 of 17
Case No: ____________
1 5. Probable cause given to "Wrongfully Accused" was the non-emergency and purported crime of, "no
2 license plate light" and for having "a dirty plate". Thereupon "papers" were demanded by way of a
3 state issued I.D.
4 6.4 No Duty to Produce ID
5 6. "Wrongfully Accused" is charged with not producing "papers" by way of state issued I.D. However,
6 "Wrongfully Accused" is without "state" domicile and is not in use of a commercial motor vehicle [9].
7 In this instant matter, without a crime committed or probable cause established, there is no duty to
8 produce ID.
9 6.5 No Commercial Nexus
10 7. Further, no evidence has been proffered that "Wrongfully Accused's" property was being used in any
11 commercial capacity [10] as dictated by the Tex. Motor Vehicle Code or that he or his property was
12 otherwise subject to said Code.
13 6.6 No Authority to Regulate
14 1. There is no authority to regulate "Wrongfully Accused" [11][12][13]. The state has failed to show that
15 the state has a security interest [14] or ownership [15] interest in "Wrongfully Accused's" property?
9
Tex Penal Code, § 38.02 Failure to Identify - ...refused to give ...who has lawfully arrested.
10
TEXAS ADMINISTRATIVE CODE, TITLE 37 PUBLIC SAFETY AND CORRECTIONS, TEXAS DEPARTMENT
OF PUBLIC SAFETY. RULE §16.1 Who Must Be Licensed. On or after April 1, 1992, all persons domiciled in Texas,
except those expressly exempt by law, who operate a commercial motor vehicle (CMV), must have a valid commercial
driver's license (CDL) issued by the department.
11
TEXAS ADMINISTRATIVE CODE, TITLE 37, PART 1, TEXAS DEPARTMENT OF PUBLIC SAFETY, RULE §1.2,
Mission - The mission of the Texas Department of Public Safety is: (1) to supervise traffic on rural highways; (2) to supervise
and regulate commercial and "for hire" traffic; (3) to preserve the peace, to investigate crimes, and to arrest criminals; (4)
to administer regulatory programs in driver licensing, motor vehicle inspection, and safety responsibility; and (5) to execute
programs supplementing and supporting the preceding activities.
12
“The law requires proof of jurisdiction to appear on the record of the administrative agency and all administrative
proceedings”. Hagans v. Lavine, 415 U.S. 533
13
"Extra territorium just dicenti non paretur impune.' - "One who exercises jurisdiction out of his territory is not obeyed
with impunity." [10 Co. 77; Dig. 2. 1. 20; Story, Confl. Laws ' 539; Broom, Max. 100, 101]
14
c.f. UCC 201 Definitions. (37) "Security interest" means an interest in personal property or fixtures which secures
payment or performance of an obligation… Whether a transaction creates a lease or security interest is determined by the
facts of each case; …
15
TEXAS TRANSPORTATION CODE, Sec. 501.004. APPLICABILITY.
(a) Except as provided by this section, this chapter applies to all motor vehicles, including a motor vehicle owned by the state
or a political subdivision of the state.
WRIT OF MANDAMUS Page 7 of 17
Case No: ____________
1 6.7 Law Does not Provide for the Impossible
2 8. As a non-resident, "Wrongfully Accused" is not eligible to register his private property even if he
3 desired to [16].
4 6.8 Simulated Legal Process
5 1. Purported charges are patently false and without merit. Strict proof is demanded thereof.
6 6.8.1 Failure to Identify
7 2. "Wrongfully Accused" was not under a lawful arrest and therefore was not required to identify c.f.:
8 [TEXAS PENAL CODE, 38.02 FAILURE TO IDENTIFY
9 (a) A person commits an offense if he intentionally refuses to give his name, residence address, or date of
10 birth to a peace officer who has lawfully arrested the person and requested the information.]
11
12 6.8.2 Evading Arrest
13 3. "Wrongfully Accused" was not intentionally fleeing from a person he knew was a police officer c.f:.
14 [TEXAS PENAL CODE, 38.04. EVADING ARREST OR DETENTION
15 (a) A person commits an offense if he intentionally flees from a person he knows is a peace officer ...
16 attempting lawfully to arrest or detain him.
17 (b) An offense ... is: (1) a state jail felony if: (B) the actor uses a vehicle... [17]]
18
19 4. As it was after midnight, with no visibility, "Wrongfully Accused" made specific demand for the
20 unknown assailant to properly identify himself. The purported officer failed to do so. As such, and
21 without probable cause, there was no lawful authority allowing for an arrest at that time.
22 5. The officer, without provocation, then exhibited what appeared to be road rage or perhaps a steroid
23 induced mental lapse of judgment, whereupon the officer did threaten to damage my property and do
24 bodily harm to myself and presumably to my wife. For my safety and for my wife's safety, I utilized
25 my right to defuse the situation and carry on to a well light and populated area, after notifying the
26 alleged officer of my intent to do so (See Justifiable Self-Defense below)
16
502.040 REGISTRATION REQUIRED; GENERAL RULE. (a) Not more than 30 days after purchasing a vehicle or
becoming a resident of this state, the owner of a motor vehicle, trailer, or semitrailer shall apply for the registration of the
vehicle for: (1) each registration year in which the vehicle is used or to be used on a public highway...
17
TEXAS TRANSPORTATION CODE, Sec. 501.004. APPLICABILITY.
(a) Except as provided by this section, this chapter applies to all motor vehicles, ...owned by the state or a political
subdivision of the state.
WRIT OF MANDAMUS Page 8 of 17
Case No: ____________
1 6. No evidence has been put forth that any transportation [18] by "vehicle" was involved, as defined by
2 the Texas Motor Vehicle Code, "Wrongfully Accused" has the conviction that none exist and strict
3 proof is demanded thereof c.f.:
4 [501.002 DEFINITIONS. (17) "Motor vehicle" means:
5 (A) any motor driven or propelled vehicle required to be registered under the laws of this state;]
6
7 7. As the charge of "state jail felony" "evasion of arrest" requires the use of a "vehicle", this charge is
8 patently false. "Wrongfully Accused" has the conviction that no evidence exist to the contrary and
9 strict proof is demanded thereof.
10 8. Further, there is no evidence that "Wrongfully Accused" was acting in the capacity of a person c.f.:
11 [Sec. 541.001 Persons. In this subtitle:
12 (1) “Operator” means, as used in reference to a vehicle [Used to transport] …has control.
13 (2) “Owner” means, [security interest] as used in reference to a vehicle, a person who has a property interest
14 in or title to a vehicle. The term: (A) includes a person entitled to use and possess a vehicle subject to a
15 security interest.
16 (4) “Person” means an individual [as operator or owner].]
17
18 6.9 Justifiable Self-Defense
19 9. "Wrongfully Accused" is justified in his action of the alleged "Evading Arrest" c.f.:
20 [PENAL CODE, Sec. 9.31. SELF-DEFENSE.
21 (a) Except as provided in Subsection (b), a person is justified in using force against another when and to the degree
22 the actor reasonably believes the force is immediately necessary to protect the actor against the other's use or
23 attempted use of unlawful force. The actor's belief that the force was immediately necessary as described by this
24 subsection is presumed to be reasonable if the actor:
25 (1) knew or had reason to believe that the person against whom the force was used:
26 (A) unlawfully and with force entered, or was attempting to enter unlawfully and with force, the actor's occupied
27 habitation, vehicle, or place of business or employment;
28 (B) unlawfully and with force removed, or was attempting to remove unlawfully and with force, the actor from the
29 actor's habitation, vehicle, or place of business or employment; or
30 (C) was committing or attempting to commit aggravated kidnapping, murder, sexual assault, aggravated sexual
31 assault, robbery, or aggravated robbery;
32 (2) did not provoke the person against whom the force was used; and
33 (3) was not otherwise engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or
34 ordinance regulating traffic at the time the force was used.
35
36 (b) The use of force against another is not justified:
37 (2) to resist an arrest ... that the actor knows is being made by a peace officer, ...unless the resistance is justified under
38 Subsection (c);
39 (4) if the actor provoked the other's use or attempted use of unlawful force, unless:
40 (A) the actor abandons the encounter, or clearly communicates to the other his intent to do so reasonably
41 believing he cannot safely abandon the encounter; and
42 (B) the other nevertheless continues or attempts to use unlawful force against the actor; or
43
44 (c) The use of force to resist an arrest or search is justified:
18
Transportation: The movement of goods or persons from one place to another, by a carrier.
WRIT OF MANDAMUS Page 9 of 17
Case No: ____________
1 (1) if, before the actor offers any resistance, the peace officer (or person acting at his direction) uses or attempts to
2 use greater force than necessary to make the arrest or search; and
3 (2) when and to the degree the actor reasonably believes the force is immediately necessary to protect himself
4 against the peace officer's (or other person's) use or attempted use of greater force than necessary.
5
6 (e) A person who has a right to be present at the location where the force is used, who has not provoked the
7 person against whom the force is used, and who is not engaged in criminal activity at the time the force is used
8 is not required to retreat before using force as described by this section.]
9
10 "Wrongfully Accused" was well within his rights to exercise self-defense by leaving the situation, in
11 the instant matter for the protection himself, third parties and property.
12 10. After the first attempt to destroy property by the alleged officers, "Wrongfully Accused" thereafter
13 being cornered and forced to stop, did in fact receive damage to property.
14 6.10 Aggravated Kidnapping
15 11. "Wrongfully Accused" was further kidnapped at gunpoint, c.f.:
16 [TEXAS PENAL CODE, § 20.04 Aggravated Kidnapping
17 (a) A person commits an offense if he intentionally or knowingly abducts another person with the intent to:
18 (1) hold him for ransom or reward;
19 (3) facilitate the commission of a felony...
20 (5) terrorize him... or
21 (6) interfere with the performance of any ...political function.
22 (b) ...exhibits a deadly weapon during the commission of the offense.]
23 6.11 Dereliction of Duty
24 6.11.1 Violation of Objective
25 12. Alleged traffic stop by municipal officers is not under regulation by ordinance, but rather under the
26 auspices of state law, in furtherance of the policies of the Texas Transportation Code and in alignment
27 with the Texas Department of Public Safety, as such the Officers have failed in their duty [19].
28 6.11.2 Violation of Nonresident Violator Compact of 1977
29 13. "Wrongfully Accused" was not taken directly to court for his trial even after demand to do so, and at
30 this time has still not been taken to court for trial, c.f.:
31 [703 NONRESIDENT VIOLATOR COMPACT OF 1977
19
TEXAS ADMINISTRATIVE CODE, TITLE 37 PUBLIC SAFETY AND CORRECTIONS
PART 1. TEXAS DEPARTMENT OF PUBLIC SAFETY, SUBCHAPTER A. OBJECTIVE, MISSION, AND PROGRAM,
RULE §1.1 Broad Objective - (b) The department works toward the attainment of this objective within existing regulations
and in cooperation with other agencies and persons with mutual or related responsibilities. It seeks to preserve the peace and to
protect the persons, property, rights, and privileges of all people in the State of Texas.
WRIT OF MANDAMUS Page 10 of 17
Case No: ____________
1 Art. I. FINDINGS, DECLARATION OF POLICY, AND PURPOSE
2 (a) The party jurisdictions find that:
3 (1) In most instances, a motorist who is cited for a traffic violation in a jurisdiction other than his home jurisdiction:
4 (i) Must post collateral or bond to secure appearance for trial at a later date; or
5 (ii) If unable to post collateral or bond, is taken into custody until the collateral or bond is posted; or
6 (iii) Is taken directly to court for his trial to be held.]
7
8 as the officers claim that he is a motorist, to that extent, they or the party jurisdiction, have failed in
9 their duty to take directly to trial.
10 6.12 Non-Statutory Habeas Corpus
11 1. "Wrongfully Accused" is under actual custody at Grayson County Detention Center; however, even if
12 freed any requirement to answer the simulated legal process [20] would create a constructive custody
13 [21] in which exceptional circumstances warrant the exercise of the Court's discretionary powers, and
14 that adequate relief cannot be obtained in any other form or from any other court. "Wrongfully
15 Accused" has not been afforded an Administrative Hearing under the APA, there is an absence of a
16 remedy from state corrective process, remedy has been otherwise barred, or they are ineffective to
17 protect the inherent rights of "Wrongfully Accused", or otherwise come within the provisions of
18 violations of the Constitution.
19 2. The Original Habeas is a matter of right and is not discretionary, the "Wrongfully Accused" has no
20 commercial nexus with the state, the acts preformed by the Wrongdoers are under color and are in
21 violation of the Constitution or laws or treaties of the United States [22] and there is an absence of
22 available State corrective process, for these reasons habeas is required. No fee should be charged, any
23 payment of a fee is not meant to create any joinder or loss of "Wrongfully Accused's" rights as
20
Tex. Code. Crim Proc. § 13.27 Simulating Legal Process.
21
“[i]t [habeas corpus] is not now and never has been a static, narrow, formalistic remedy; its scope has grown to achieve its
grand purpose—the protection of individuals against erosion of their right to be free from wrongful restraints upon their
liberty.” * * * “[B]esides physical imprisonment, there are other restraints on a man’s liberty, restraints not shared by the
public generally, which have been thought sufficient in the English-speaking world to support the issuance of habeas corpus.”
398 F.2d at 710–711
22
c.f. 28 U. S. C. § 1651, § 2241, §2254(b).
WRIT OF MANDAMUS Page 11 of 17
Case No: ____________
1 "Wrongfully Accused" is not making an application under the code [23] and any use of FRN's are to be
2 deemed as lawfully redeemed [24].
3 6.12.1 Conviction Final
4 1. The current proceedings are in fact a contested case, relating to the original adjudication thru summary
5 process by the officer, given in the form of a ticket, c.f.:
6 [OFFICE OF THE ATTORNEY GENERAL
7 ADMINISTRATIVE LAW HANDBOOK 2014
8 Adjudication [pg 4]
9 Procedural Requirements Governing Contested Cases
10 Adjudication generally occurs when an agency ...assesses an administrative penalty, or otherwise takes
11 agency action affecting a person or an entity's legal interest.]
12
13 Otherwise the "Wrongfully Accused" has not received an adjudication, at which point we have to ask,
14 why he is incarcerated. If so, demand is hereby made to immediately hold an adjudicative hearing as
15 per the Administrative Law Handbook and the APA, c.f.:
16 [OFFICE OF THE ATTORNEY GENERAL
17 ADMINISTRATIVE LAW HANDBOOK 2014
18 The Administrative Procedure Act [pg 2]
19 The Administrative Procedure Act (APA) governs two basic types of agency action: adjudication and
20 rulemaking. Adjudication occurs when the "legal rights, duties, or privileges of a party are to be determined
21 by a state agency after an opportunity for adjudicative hearing."]
22
23 6.12.2 Denial of Access to the Courts
24 2. "Wrongfully Accused" has been adjudicated as evidenced by the "assessment of a penalty" in the form
25 of summary process or traffic ticket and “agency action affecting a person or an entities legal interest”
26 as evidenced by the arrest. Therefore, as a contested case with a final conviction, demand is made for
27 an "Original" Habeas (c.f. 28 § 2254).
28 6.12.3 Objection to Court Acting as Agency
29 1. Otherwise "Wrongfully Accused" has not been given formal notice and an opportunity to respond,
30 unless the ticket is the formal notice and court is acting as the Agency, c.f.:
31 [OFFICE OF THE ATTORNEY GENERAL
23
Apply: To make a formal request or petition, to a court or officer, for the granting of some favor, or of some rule or order,
which is within his or their power or discretion. - To apply for a pardon. When used with statutes in describing the class of
persons, within its scope; as that the statute only “applies to transactions in interstate commerce”. Black’s Law 6th.
24
Title 12, Sec 411.
WRIT OF MANDAMUS Page 12 of 17
Case No: ____________
1 ADMINISTRATIVE LAW HANDBOOK 2014
2 Licensee's Opportunity to Respond [pg 5]
3 The minimum legal requirements for notice and opportunity to show compliance are met by the agency's
4 formal notice of hearing to the licensee.]
5
6 "Wrongfully Accused" objects to the court acting as the Agency and demands due process
7 adjudication by the agency as per the APA.
8 6.12.4 Fraud Upon the Court
9 1. NOTIFICATION IS HEREIN GIVEN to the magistrates of this court, of wrongdoing or fraud upon
10 the court by way of the simulated process/wrongful arrest [25] and the requirement of remedy [26].
11 6.12.5 Denial of counsel
12 2. "Wrongfully Accused" is denied assistance of counsel of his choice, c.f.:
13 [18 U.S. Code § 3006A - Adequate representation of Relators
14 (a) Choice of Plan.— ... Representation ...shall include counsel and investigative, expert, and other services
15 necessary for adequate representation. Each plan shall provide the following:
16 (1) Representation shall be provided for any financially eligible person who—
17 (H) is entitled to appointment of counsel under the sixth amendment to the Constitution;]
18
19 "Wrongfully Accused" did appoint assistance of counsel, upon the first day of incarceration, said
20 counsel was denied access to the jail for want of a "License". At this time "Wrongfully Accused" is
21 still being denied access to his required counsel at the jail.
22 6.12.6 Fundamental Error - Not Amenable to Process
23 1. "Wrongfully Accused" has no contacts with forum state of any continuous, systematic or substantial
24 nature and any purported presence, being merely technical. Objection is not waived by contract,
25 general appearance or otherwise, thereby constitutional due process is denied and fraud and
26 constructive fraud is commenced.
27 2. Cause of action did not arise out of the nonresident's mere technical presence with Texas [27][28] and is
28 without notions of fair play and substantial justice. The Wrongdoers have failed to take "Wrongfully
25
see also misprision of a felony.
26
[c.f. judicial notice] - Whenever a judge acts where he/she does not have jurisdiction to act, the judge is engaged in an act
or acts of treason. U.S. v. Will, 449 U.S. 200, 216, 101 S.Ct. 471, 66 .Ed.2d 392, 406 (1980); Cohens v. Virginia, 19 U.S. (6
Wheat) 264, 404, 5 L.Ed 257 (1821) Any judge or attorney who does not report such judges for treason as required by law may
themselves be guilty of misprison of treason, 18 U.S.C. Section 2382.
WRIT OF MANDAMUS Page 13 of 17
Case No: ____________
1 Accused" directly to a magistrate [29], to reach the burden to plead sufficient allegations [30], recognize
2 demure, or allow for an examination hearing for that purpose and "by raising the jurisdiction issue in
3 federal court, the nonresident Relator places the burden on the plaintiff to prove in personam
4 jurisdiction" [31].
5 6.13 In the Alternative - Administrative Remedies Not Exhausted
6 1. If by some strange notion that fair play and substantial justice is deemed to be held in the mind, then,
7 alternatively to the above conditions, Constitutional due process has been withheld by denial of
8 exhaustion of administrative remedies.
9 6.13.1 Or (Declaratory Judgment)
10 1. Alternatively as related to the above condition, the primary jurisdiction doctrine of administrative
11 remedies does not apply when the issue to be decided is inherently judicial in nature and it is alleged
12 that the rule, or its threatened application, interferes with or impairs, or threatens to interfere with or
13 impair, the legal rights or privileges of the "Wrongfully Accused", nor is it a prerequisite for a
14 declaratory judgment concerning the validity or applicability of an agency rule, and may be relaxed
15 when the administrative remedies are inadequate, or when the agency's action is unconstitutional,
16 beyond its jurisdiction, or clearly illegal, or if only constitutional challenges to statute is made, or
17 purely questions of law [32]. Therefore demand is made for the court to give declaratory notice, as to
18 the rights and duties of the parties thru Declaratory Judgment, or as may be necessary to notify the
27
Whether the exercise of a state court's extraterritorial jurisdiction satisfies the requirements of the Due Process Clause
depends on the relationship among the Relator, the forum, and the litigation, rather than the mutually exclusive
sovereignty of the states or the mere presence of property in the forum [International Shoe Co. v. Washington, 326 U.S. 310,
316, 66 S. Ct. 154, 90 L. Ed. 95 (1945); Shaffer v. Heitner, 433 U.S. 186, 212, 97 S. Ct. 2569, 53 L. Ed. 2d 683 (1977)].
28
We therefore conclude that all assertions of state court jurisdiction must be evaluated according to the standards set
forth in International Shoe and its progeny [Shaffer v. Heitner, 433 U.S. 186, 212, 97 S. Ct. 2569, 53 L. Ed. 2d 683 (1977)].
29
COURTS OF THE UNITED STATES -.Equity Jurisdiction of the Circuit Courts. 102. By the Act of August 23, 1842, it
is enacted, 5, " That the district courts, as courts of admiralty, and the circuit courts, as courts of equity, shall be deemed
always open for the purpose of filing libels, bills, petitions, answers, pleas, and other pleadings, and for...other proceedings
whatever... [Bouvier's 1856]
30
Am. Type Culture Collection, Inc. v. Coleman, 83 S.W.3d 801, 807 (Tex. 2002).
31
Product Promotions, Inc. v. Cousteau, 495 F.2d483, 489-491 (5th Cir. [Tex.] 1974)].
32
Dorsaneo, Texas litigation Guide §424.01[2], Administrative Proceedings, Direct Judicial Proceedings.
WRIT OF MANDAMUS Page 14 of 17
Case No: ____________
1 agencies (Department of Public Safety and Whitewright Police Department) of the rights and duties of
2 the parties for future reference as it relates to the substantive rights of "Wrongfully Accused" [33].
3 6.14 In the Alternative - Court Not Vested With Jurisdiction
4 2. In further alternate than the foregoing issues, the record reflects that an information was not proffered,
5 to vest the court with jurisdiction, or to determine a defense, or make a plea to the charge, further
6 violating constitutional due process.
7 7. DEMAND FOR RELIEF
8 WHEREFORE, the court did consider the matter and hereby directs the following:
9 1. Direct GRAYSON COUNTY SHERIFF, J. Keith Gary and/or SERGEANT, James Woodson
10 (Grayson County Detention Center) to free "Wrongfully Accused" immediately.
11 2. Direct Jason Wall (WHITEWRIGHT POLICE CHIEF) to return stolen property to "Wrongfully
12 Accused" (84' Red 4 door Mercedes 190D).
13
14 3. Emergency and permanent injunction on all wrongdoers and state actors from further collection
15 and future harassment in their regulatory scheme;
16
17 4. Declaratory notification to the agencies of the State of Texas et. al, as to the duties of the agencies
18 officers (as it relates to "Wrongfully Accused"), with a requirement for all state agencies to update,
19 correct and/or purge their records as it pertains to "Wrongfully Accused" - written on "Wrongfully
20 Accused" behalf;
21
22 5. Sanctions against wrongdoing officers, acting under color for:
23 i.Submitting false, libelous, unwarranted, and baseless informations.
24 ii.Attempting to abuse the court for political rather than legitimate Constitutional purposes.
25 iii.Establishing a religion by attempting to proceed without any evidence whatsoever.
26 iv. Aggravated kidnapping the "Wrongfully Accused", uncompensated time responding to baseless
27 charges, and thereby forcing him to make his private dealings into a public record in order to defend
28 himself from libel.
29 v. Disciplinary action against purported officers for misuse of emergency procedures and for all reasons
30 shown above.
31
32 6. All other relief that "Wrongfully Accused" shows is equitable and just for compensation and cost [ 34];
33 and
34
35 7. All other relief that may be available.
33
See also 28 USC § 2202 Further relief.
34
In any proceeding under the Uniform Declaratory Judgments Act, the trial court is authorized to award costs and
"reasonable and necessary" attorney's fees that are "equitable and just". [Dorsaneo, Texas Litigation Guide § 45.06[1]].
WRIT OF MANDAMUS Page 15 of 17
Case No: ____________
1 8. VERIFICATION
2 IN WITNESS OF THIS AGREEMENT, the undersigned states that all herein be true, to the best of my
3 knowledge and ability, executed from without the “United States”; c.f. definition in 28 U.S.C. §1603(c ),
4 §1746(1) and 26 U.S.C. §7701(a)(10)(26)(31) as of the 3rd day of August 2015.
5
6
7
8 ______/s/_________
9 Karl Schonwalder by
10 Scott Odam POA
11 9. VERIFICATION OF SERVICE
12 This is to verify that a copy of the above-entitled and numbered claim has been served on all parties
13 listed below, delivering a true copy to them thru the courts electronic filing system, or mailed where
14 necessary as follows:
15
16 ***EX PARTE****
17
18 KEN PAXTON (A.G.) [35],
19 300 W. 15th
20 Austin, TX 78701
21
22 Rick Webber
23 507 W. Grand Ave
24 Whitewright, Texas 75491
25
26 Jason Wall [acting as WHITEWRIGHT POLICE CHIEF]
27 507 W. Grand Ave.,
28 Whitewright, Texas 75491
29
30 John Doe A-Z (acting as WHITEWRIGHT POLICE OFFICER)
31 507 W. Grand Ave.,
32 Whitewright, Texas 75491
33
34 Steve McCraw, (acting as Director of DPS)
35 Texas Department of Public Safety
36 5805 N. Lamar Blvd.
37 Austin, TX 78752-4431
38
39 Larry Atherton, (acting as Magistration Judge, J.P. #1)
40 200 S. Crockett
41 Sherman, TX 75090
42
43 Donnie Carter, (acting as Assistant D.A.)
35
Only substantial compliance... [Failure to notice in alternative declaratory judgment] does not constitute fundamental error.
Dorsaneo, Texas Litigation Guide § 45.05[3].
WRIT OF MANDAMUS Page 16 of 17
Case No: ____________
1 200 S. Crockett
2 Sherman, TX 75090
3
4 Brian Gary, (acting as Trial Judge, 397th District Court)
5 200 S. Crockett
6 Sherman, TX 75090
7
8
9
10
11 _____________________
12 Karl Schonwalder
13
14
WRIT OF MANDAMUS Page 17 of 17
Case No: ____________