defining a void judgment as one rendered when a court has no jurisdiction over the parties or subject matter, no jurisdiction to render judgment, or no capacity to act as a court
How later courts described this case
- defining a void judgment as one rendered when a court has no jurisdiction over the parties or subject matter, no jurisdiction to render judgment, or no capacity to act as a court
- "the burden of proving jurisdiction rests upon the party asserting it."
- court did not abuse discretion in refusing to admit as untrustworthy a document that relied upon hearsay statements of witnesses made to the investigator
- holding that trial court has not only power but duty to vacate a void judgment
Written by the judges who cited it.
The opinion
APPENDIX
TAB A
EMERGENCY RELIEF REQUESTED
No.
IN THE COURT OF
CRIMINAL APPEALS, TEXAS
IN RE JASON CHILDRESS,
PETITIONER
PETITON FOR WRIT OF HABEAS CORPUS
On Petition For A Writ Of Habeas Corpus
To The Texas Court of Criminal Appeals From Cause No. 2014CR1548
From The Comal County Court At Law #2 of Comal County, Texas
(Charles A. Stephens II)
IDENTITY OF PARTIES
Petitioner, Jason Childress, certifies that the following is a complete list of the names and
addresses of all parties.
Petitioner: Jason Childress
Sui Juris in Trial Court,
9141 Gristmill Ct.
Fort Worth, Texas
Respondent: Charles A. Stephens II
County Court At Law #2
Comal County Courthouse Annex
150 N. Seguin, Ste. 301
New Braunfels, TX 78130
Interested Party: Abigail Whitaker
Comal County District Attorney's Office
Comal County Courthouse Annex
150 N. Seguin Ave. Ste. 307
New Braunfels, Texas 78130
ii
TABLE OF CONTENTS
Page
IDENTITY OF PARTIES.............................................................................................................. ii
TABLE OF CONTENTS.............................................................................................................. iii
INDEX OF AUTHORITIES......................................................................................................... iv
STATEMENT OF THE CASE..................................................................................................... ix
STATEMENT OF JURISDICTION............................................................................................. ix
ISSUES PRESENTED................................................................................................................. ix
STATEMENT OF FACTS............................................................................................................. 1
ARGUMENT................................................................................................................................. 2
HABEAS RELIEF IS PROPER........................................................................................ 2
I. POWER TO RESTRAIN................................................................................................... 2
II. MANNER OF RESTRAINT............................................................................................. 3
III. ISSUES THAT BAR PROSECUTION AND CONVICTION.......................................... 9
A. Sec. 38.02 IS INAPPLICABLE UNDER THE CIRCUMSTANCES......................... 9
B. WITNESSES DISQUALIFIED................................................................................. 12
REQUEST FOR RELIEF............................................................................................................. 14
VERIFICATION.......................................................................................................................... 15
CERTIFICATE OF SERVICE..................................................................................................... 16
APPENDICES …......................................................................................................................... 17
(Appendix is separate, incorporated herein in its entirety for all purposes, and is being used as an
Appendix for this Petition for Writ of Hebeas Corpus and Petition for Writ of Mandamus)
iii
INDEX OF AUTHORITIES
Legal Maxims & Doctrines
Doctrine of Acquiescence.............................................................................................................. 3
Ejusdem Generis.......................................................................................................................... 11
Expressio unius est exclusio alterius............................................................................................ 11
Jus ex injuria non oritur................................................................................................................ 14
Lex citius tolerare vult privatum damnum quam publicum malum............................................. 14
Nemo punitur pro alieno delicto.............................................................................................. 7, 14
Noscitur a Sociis.......................................................................................................................... 11
Nullus commodum capere potest de injuri su propri............................................................... 8, 14
Ubicunque est injuria, ibi damnum sequitur............................................................................ 8, 14
Qui non negat, fatetur..................................................................................................................... 3
Legal Encyclopedia
Corpus Juris Secundum,
2d Vol. 7 section 25.......................................................................................................... 13
Federal Cases
Armstrong v. Manzo,
380 U.S. 545 (1965)........................................................................................................... 8
Central Pacific Railway Co. v. Alameda County,
284 U.S. 463 (1932)........................................................................................................... 4
Conley v. Gibson,
355 U.S. 41 at 48 (1957)............................................................................................ 13, 14
Davis v. Wechler,
263 U.S. 22....................................................................................................................... 13
Georgia v. South Carolina,
iv
497 U.S. 376 (1990)........................................................................................................... 4
Goldsmith v. U. S.,
C.C.A.N.Y., 42 F.2d 133.................................................................................................. 11
Grannis v. Ordean,
234 U.S. 385, 394............................................................................................................... 9
Haines v Kerner,
404 U.S. 519 (1972)......................................................................................................... 13
In re Eagle Bus Mfg.,
62 F.3d. 730, 735 (5th Cir. 1995)....................................................................................... 7
In re Gault,
387 U.S. 1 (1967)............................................................................................................... 8
Jenkins v. McKeithen,
395 U.S. 411, 421 (1959)................................................................................................. 13
Maty v. Grasselli Chemical Co.,
303 U.S. 197 (1938)......................................................................................................... 13
Medical Center, Inc.,
485 U.S. 80 (1988)............................................................................................................. 9
Mullane v. Central Hanover Bank & Trust Co.,
339 U.S. 306, 314 (1950)................................................................................................... 8
NAACP v. Alabama,
375 U.S. 449..................................................................................................................... 13
Peralta v. Heights Medical Center, Inc.,
485 U.S. 80 (1988)............................................................................................................. 9
Picking v. Pennsylvania Railway,
151 F.2d. 240, Third Circuit Court of Appeals................................................................. 13
Plaskey v. CIA,
953 F.2nd 25..................................................................................................................... 13
Puckett v. Cox,
456 F. 2d 233 (1972) (6th Cir. USCA)............................................................................. 13
v
Robinson v. Hanrahan,
490 U.S. 38 (1972)............................................................................................................. 7
Stromberb v. California,
283 U.S. 359..................................................................................................................... 13
State Cases
Aleksich v. Industrial Accident Fund,
116 Mont. 69, 151 P.2d 1016............................................................................................ 11
Browning v. Placke,
698 S.W.2d. 362 (Tex. 1985) (orig. proceeding).............................................................. 10
Bruneio v. Bruneio,
890 S.W.2d 150, 155 (Tex. Civ. App. 1994, no writ)......................................................... 6
Burgin v. Forbes,
293 Ky. 456, 169 S.W.2d 321.......................................................................................... 11
Cliff v. Huggins,
724 S.W.2d 778, 780 (Tex.1987)................................................................................... 6, 7
DeLeon v, Periman,
530 S.W.2d 174 (Tex. Civ. App. 1975).............................................................................. 4
Delgado v. Hernandez,
951 S.W.2d 97, 99 (Tex. Civ. App. 1997, no writ)...........................................................
Dunham v. State,
140 Fla. 754, 192 So. 324, 325, 326................................................................................ 11
Ex parte Gordon,
584 S.W.2d. 686, 688 (Tex. 1979)..................................................................................... 5
Ex parte Smith,
178 S.W.3d 797 (Tex. Crim. App. 2005)............................................................................ 3
Fazio v. Pittsburgh Rys. Co.,
321 Pa. 7, 182 A. 696....................................................................................................... 11
Hidalgo County Water Improvement District No.2 v. Blalock,
301 S.W.2d 593 (1957)...................................................................................................... 4
vi
In re Aguilera,
37 S.W.3d. 43, 47 (Tex. Civ. App. 2000, no pet.).............................................................. 5
IN RE BOURG,
Tex. Civ. App. (2008)......................................................................................................... 5
In re Castro,
998 S.W.2d. 925, 927 (Tex.Civ. App. 1999. no pet.)......................................................... 5
Little v. Town of Conway,
171 S.C. 27, 170 S.E. 447................................................................................................ 11
Louis Pizitz Dry Goods Co. v. Fidelity & Deposit Co. of Maryland,
223 Ala. 385, 136 So. 800, 801........................................................................................ 11
Mapco, Inc. v. Forrest,
795 S.W.2d 700 (Tex. 1990 orig. proceeding).................................................................. 9
Morecock v. Hood,
202 N.C. 321, 162 S.E. 730.............................................................................................. 11
Newblock v. Bowles,
170 Oki. 487, 40 P.2d 1097.............................................................................................. 11
People v. One 1941 Ford 8 Stake Truck, Engine No. 99T370053, License No. P.8410, Cal.,
159 P.2d 641..................................................................................................................... 12
Platt v. Platt,
991 S.W.2d. 481 (Tex. Civ. App. 1999)......................................................................... 5, 6
Rozsa v. Jenkinson,
754 S.W.2d. 507, (Tex. Civ. App. 1988)............................................................................ 7
Sanchez v. Hester,
911 S.W.2d. 173 – Tex. Civ. App. (1995).................................................................... 9, 10
Saslaw v. Weiss,
133 Ohio St. 496, 14 N.E.2d 930...................................................................................... 11
State v. Owens,
907 S.W.2d. 484 (Tex. 1995) (per curiam)....................................................................... 10
State v. Western Union Telegraph Co.,
196 Ala. 570, 72 So. 99, 100............................................................................................ 11
vii
Thomas v. Miller,
906 S.W.2d. 260 (Tex.App.-Texarkana 1995) (orig. proceeding)................................... 10
Thomas v. Ray,
889 S.W.2d 237, 238 (Tex.1994)....................................................................................... 6
Withrow v. Schou,
13 S.W.3d. 37 (Tex. Civ. App. 1999)................................................................................. 7
State Constitution and Rules
Texas Code of Criminal Procedure,
Art. 4.04............................................................................................................................. x
Texas Code of Criminal Procedure,
Art. 11.01........................................................................................................................... x
Texas Code of Criminal Procedure
Art. 11.05........................................................................................................................... x
Texas Code of Criminal Procedure,
Art. 14.01......................................................................................................................... 12
Texas Code of Criminal Procedure,
Art. 14.03......................................................................................................................... 12
Texas Constitution
Art. V, Sec. V (c)................................................................................................................ x
Texas Penal Code,
Sec. 1.07 (a) (38).............................................................................................................. 11
Texas Penal Code,
Sec. 38.01 (5)................................................................................................................... 12
Texas Penal Code,
Sec. 38.02 (a) (d) (1)...................................................................................... 10, 11, 12, 13
viii
STATEMENT OF THE CASE
Underlying Proceeding:
A criminal action brought against Petitioner by IDA PANIAGUA for the alleged offense
“INTENTIONALLY REFUSE TO GIVE HIS NAME, DATE OF BIRTH AND ADDRESS TO
JAMES BELL.”
Respondent:
Charles A. Stephens II, Comal County Court At Law 2, of COMAL COUNTY, TEXAS.
Respondent's Action For Which Petitioner Seeks Relief:
Charles A. Stephens II, entered an order instructing the clerk of the Comal County Court
At Law 2 to issues a capias warrant, which has been issued, for Petitioner in absence of Due
Process, unconstitutionally restraining him.
Prior Petitions:
This is an Original Proceeding.
STATEMENT OF JURISDICTION
This court, pursuant to the Texas Constitution Art. V, Sec. V (c) and the Texas Code of
Criminal Procedure, Ch. 4, Art. 4.04 and Ch. 11., Art. 11.01 and 11.05 has jurisdiction to
consider and grant this Petition and to issue a Writ of Habeas Corpus.
ISSUES PRESENTED
1. Does the trial court have power to restrain Petitioner? (No)
2. Has the manner of restraint of Petitioner occurred in absence of Due Process? (Yes)
3. Are there issue which bar prosecution and conviction of Petitioner for the alleged
criminal charge against him? (Yes)
ix
STATEMENT OF FACTS
On September 4, 2014, Petitioner was unlawfully arrested, unlawful searched and had his
property seized unlawfully by officers of/for the NEW BRAUNFELS POLICE DEPARTMENT
(NBPD).
On September 12, 2014, Petitioner was coerced into signing a “PR BOND” (Apx. Tab B)
displaying an incorrect address for Petitioner. Petitioner was coerced in that the jailer whom
presented the “PR BOND” threatened to leave Petitioner in jail for another two weeks if he
refused to sign. Petitioner signed the “PR BOND” in order to expedite his release from his
unlawful imprisonment, as Petitioner could inform the trial court that the address displayed on
the “PR BOND” is incorrect and provide it with a correct one for purposes of service of notice or
any other correspondences.
On September 29, 2014, via letter (Apx. Tab C), Petitioner informed the trial court that it
had an incorrect address for Petitioner on file and provided it with both Petitioner's current
location and address to which notices of any hearings or any other correspondences should be
sent to in order for him to receive them.
On March 3, 2015, Petitioner began checking the online records for the trial court
because he had received no correspondences or notices of hearings. On that same day, Petitioner
discovered via online records that the trial court had failed or neglected to correct the incorrect
address it had on file (Apx. Tab D), that a “COMPLAINT (OCA)” (Apx. Tab E) and a
“NOTICE RETURNED” (Notice) (Apx. Tab F) had been filed into the trial court on December
15, 2014 and January 26, 2015, respectively, and than an “Arraignment” (see Apx. Tab D) had
taken place circa February 3, 2015. Petitioner further discovered than an
“AFFIDAVIT/FAILURE TO APPEAR” (Apx. Tab G), an “ORDER FOR ARREST-FAILURE
In re Jason Childress Page 1 of 18
TO APPEAR” (Order) (Apx. Tab H) and a “CAPIAS-FAILURE TO APPEAR” (Capias) (Apx.
Tab I) had also been filed into the trial court on February 20, 2015, February 26, 2015, and
March 2, 2015, respectively.
ARGUMENT
“A [petitioner] may use a pretrial writ of habeas corpus only in very limited
circumstances. First, the accused may challenge the State's power to restrain him
at all. Second, the accused may challenge the manner of his pretrial restraint [].
Third, the accused may raise certain issues which, if meritorious, would bar
prosecution or conviction. Ex parte Smith, 178 S.W.3d 797 (2005).
I. POWER TO RESTRAIN
The trial court is without subject matter, personal, political or civil contractual
jurisdiction over the underlying cause to the instance case, therefore, is without power to restrain
Petitioner. The lack of the aforementioned jurisdictions are set forth, challenged, and explained
in further detailed in Petitioner's “AFFIDAVIT OF COUNTERCOMPLAINT,”
(Countercomplaint) (see Apx. Tab K) attached hereto and incorporated herein it its entirety for
all purposes. The lack of the aforementioned jurisdictions are set out and explained in detail
specifically in Sections IV. – VIII. of Petitioner's Countercomplaint (Apx. Tab K). Petitioner's
averments have been received by all involved and interested parties, evidenced by Return
Receipts (see Apx. Tab N, O, P, & Q) attached hereto and incorporated herein for all purposes
and said Receipts have been filed into the trial court's record. Petitioner's sworn averments within
his Countercomplaint are unchallenged, unrebutted and unrefutted, and pursuant to the Doctrine
of Acquiescence, silence by the involved and interested parties constitutes their agreement with
Petitioner's sworn averments.
Doctrine of Acquiescence
Under the Doctrine of Acquiescence as well as the Maxim in Law which states
In re Jason Childress Page 2 of 18
that “silence shows consent” 6 Barb. [N.Y.] 2B, 35. Qui non negat, fatetur and
“He who does not deny, agrees,” (Trayner, Maxim 503), the Appellee’s silence
constituted their agreement with the Appellants’ arbitration proposal terms and
conditions under the legal Doctrine of Tacit Procuration.
The common law doctrine of estoppel by acquiescence is applied when one party
gives legal notice to a second party of a fact or claim, and the second party fails to
challenge or refute that claim within a reasonable time. The second party is said to
have acquiesced to the claim, and is estopped from later challenging it, or making
a counterclaim. The doctrine is similar to, and often applied with, estoppel by
laches
This occurred in the second Georgia v. South Carolina1 case before the U.S.
Supreme Court in 1990, when it was ruled that Georgia could no longer make any
claim to an island in the Savannah River, despite the 1787 Treaty of Beaufort's
assignment to the contrary. The court said that the state had knowingly allowed
South Carolina to join the island as a peninsula to its own coast by dumping sand
from dredging, and to then levy property taxes on it for decades. Georgia thereby
lost the island-turned-peninsula by its own acquiescence, even though the treaty
had given it all of the islands in the river (see adverse possession
Silence is acquiescence (aka. silent acquiescence and acquiescence by silence) is a
related doctrine that can mean, and have the legal effect, that when confronted
with a wrong or an act that can be considered a tortuous act, where one’s silence
may mean that one accepts or permits such acts without protest or claim thereby
loses rights to a claim of any loss or damage.2
Further, pursuant to the Doctrine of Stare Decisis, Petitioner's “...unchallenged averments
are accepted as true.” DeLeon v. Periman, 530 S.W.2d 174 (Tex.App.-Amarillo (1975)); quoting
Hidalgo County Water Improvement District No.2 v. Blalock, 157 Tex. 206, 301 S.W.2d 593, 596
(1957). Petitioner's averments that the trial court is without jurisdiction have been agreed to by
all involved and interested parties and are accepted as true under Texas Common Law. In
absence of the subject matter, personal, political and civil contractual jurisdiction, the trial court
is without power to restrain Petitioner in relation to the underlying case to the instant case.
II. MANNER OF RESTRAINT
1 Georgia v. South Carolina - 497 U.S. 376 (1990)
2 U.S. Supreme Court Central Pacific Railway Co. v. Alameda County, 284 U.S. 463 (1932)
In re Jason Childress Page 3 of 18
Even if the trial court had jurisdiction over the underlying cause to the instant case and
power to restrain Petitioner, the manner in which his restraint has taken place has clearly
manifested through a denial of due process, in that Petitioner was not provided notice of the
hearing from which his restraint stems from.
An Order (Apx. Tab H) for “FAILURE TO APPEAR” was issued by Respondent on
February 26, 2015. On March 2, 2015, the Clerk or a deputy therefor, of/for the trial court issued
a Capias (Apx. Tab I) for Petitioner. “Issuance of a capias is a sufficient restraint of liberty to
justify habeas corpus relief.” In re Aguilera, 37 S.W.3d. 43, 47 (Tex.App.-El Paso 2000, no pet.)
As of yet, Petitioner has not been taken taken into custody pursuant to Order and Capias.
“A habeas corpus petition is a collateral attack on a judgment, the purpose of which is not
to determine the final guilt or innocence of the [petitioner], but to ascertain whether the
[petitioner] has been [restrained] unlawfully. Ex parte Gordon, 584 S.W.2d. 686, 688 (Tex.
1979). The restraint of Petitioner by the trial court is unlawful due to the fact that the Order was
made and the Capias was issued in absence of due process. “A writ of habeas corpus will issue if
[] the court deprives the [petitioner] of liberty without due process of law.” In re Castro, 998
S.W.2d. 925, 927 (Tex.App.-Houston [1st Dist.] 1999. no pet.). A writ of habeas corpus is proper
and should issue due to the fact that Petitioner is being deprived of his liberty without due
process of law.
“A [petitioner] bears the burden of showing that []he is entitled to relief.” Turner,
177 S.W.3d at 288 (citing Occhipenti, 796 S.W.2d. At 808-09.)” IN RE BOURG,
Tex: Court of Appeals, 1st Dist. 2008.
The court administrator of/for the trial court erred by mailing the notice of the hearing
from which the Order and Capias stem to the wrong address even though the court had been
notified before the notice was sent, that the address it had on file was incorrect and had been
In re Jason Childress Page 4 of 18
provided with, and was in possession of, Petitioner's exact location and correct address. “[T]he
trial court erred when it [] failed to send notice of the hearing to [Petitioner's] address on file
with the court.” Platt v. Platt, 991 S.W.2d. 481 (1999).
Petitioner had notified the court via letter (see Apx. Tab C) sent on September 19, 2014,
which was received and filed into the trial court record on October 3, 2014, as a part of the
“MEMORANDUM (see Apx. Tab D) that the address it had on file (see Apx. Tab B and E) was
incorrect; that Petitioner had not lived at the incorrect address in a number of years; and, he
provided not only his current location– DALLAS COUNTY JAIL, but also the address to which
notice should be sent in order for him to receive it, if notice was not sent directly to the DALLAS
COUNTY JAIL.
“[T]the law presumes that a trial court will hear a case only after proper notice to the
parties. To rebut this presumption, [petitioner] has the burden to affirmatively show a lack of
notice by affidavit or other competent evidence.” Bruneio v. Bruneio, 890 S.W.2d 150, 155
(Tex.App.-Corpus Christi 1994, no writ). Petitioner has shown to the trial court, and now shows
this court, via affidavit (see Apx. Tab J, pg.5, #100. and Apx. Tab K, p.34 - 35, #77. - 78.) that
he was not provided notice of the hearing from which the Order and Capias stem. Further,
Petitioner provides this court with competent evidence (see Apx. Tab C & F) that he was not
provided notice of the hearing from which the Order and Capias stem.
“In the instant case, the record shows that notice of [the] hearing [] was mailed to the
wrong address. That a document was mailed creates a rebuttable presumption that it was
received.” Platt v. Platt, 991 S.W.2d 481 (1999) quoting Thomas v. Ray, 889 S.W.2d 237, 238
(Tex.1994). Similarly, in the underlying cause to the instance case, the trial court's record shows
that notice was mailed to the wrong address (see Apx. Tab C & F). “When [Petitioner] filed [his]
In re Jason Childress Page 5 of 18
affidavit stating that []he did not receive the notice, the presumption was rebutted.” (see Apx.
Tab K, p. 34 – 35, #77. – 78.) “The presumption of receipt is not evidence and vanishes when
opposing evidence is introduced showing that the notice was not received.” Cliff v. Huggins, 724
S.W.2d 778, 780 (Tex.1987).
“The error and invalidity of the trial court's judgment affirmatively appears on the
face of the record [see Apx. Tab D & F] in the that wrong address for [Petitioner]
is typed on the notice []. Additionally, the records shows that [the trial court] had
access to [Petitioner's] correct address [] [see Apx. Tab C]. Therefore, the notice
was not sent to [Petitioner's] “last known address. Rozsa v. Jenkinson, 754
S.W.2d. 507 (Tex.App.-San Antonio 1988)
“The [trial court] mailed notice of the pending [] proceeding, not to the jail
facility [or the address provided by Petitioner], but to [an incorrect] address []
listed in the records of the [trial court].” Robinson v. Hanrahan, 490 U.S. 38
(1972) “[T]he manner of notice did not comport with the requirements of the Due
Process Clause of the Fourteenth Amendment. (Id.) “The [trial court] knew that
[petitioner] was not at the address to which notice was mailed and, moreover,
knew also that [petitioner] could not get to that address since he [no longer lived
there]. Under these circumstances, it cannot be said the the [trial court] made any
effort to provide notice which was 'reasonably calculated” to apprise [petitioner]
of the pendency of the [] proceedings.” (Id.)
Either the Clerk or a deputy therefor, failed to correct the mistake in the court's files or
the court administrator intentionally sent notice to the wrong address.
“The notice was returned undelivered to the trial court on [or about January 27,
2015], with the notation “Return to Sender [Not Delivered As Addressed Unable
To Forward (see Apx. Tab F)]” Withrow v. Schou, 13 S.W.3d. 37 (Tex.App.-
Houston 1999). “[I]f [Petitioner] [had failed] to notify the clerk in writing of a
[correct] address, [] then there is no 'due process' argument...” (Id.) “Federal
courts have held in various contexts that mailing notice of settings by first-class
mail is constitutionally sufficient as long as the government acts reasonable under
the circumstances, even if the intended recipient of the notice never receives it.
See In re Eagle Bus Mfg., 62 F.3d. 730, 735 (5th Cir. 1995)” (Id.) “There is
imposed 'a responsibility on the [party] to be notified to keep the court and parties
apprised of their correct and current address.'” [T]he record indicates [Petitioner]
notified the court of [the correct] address.” (Id.)
The trial court had been notified that the address it had on file (see Apx. Tab B) was
In re Jason Childress Page 6 of 18
incorrect and it was in fact notified and in possession of the correct address (see Apx. Tab C) to
which service was to be made, therefore, Petitioner cannot be faulted and restrained in his liberty
for the mistakes or wrongs of the clerk or deputy therefor, or court administrator; Nemo punitur
pro alieno delicto. “No one is to be punished for the crime or wrong of another.”; Nullus
commodum capere potest de injuri su propri. “No one shall take advantage of his own wrong.
Co. Litt. 148.”' Ubicunque est injuria, ibi damnum sequitur. Where ever there is a wrong, there
damages follow. 10 Co. 116.” Petitioner has been denied due process in that he was not provided
notice of the hearing from which the Order and Capias stem.
“It is clear that failure to give the petitioner notice of the pending proceedings
violates the most rudimentary demands of due process of law. Many controversies
have raged about the cryptic and abstract words of the Due Process Clause but
there can be no doubt that at a minimum they require the deprivation of life,
liberty, or property by adjudication be preceded by notice and opportunity for
hearing appropriate to the nature of the case. Mullane v. Central Hanover Tr. Co.,
339 U.S. 306, at 313.” Armstrong v. Manzo, 380 U.S. 5454 – Supreme Court
1965.
As has been stated and demonstrated by Petitioner herein, and the Appendices attached
hereto and incorporated herein, he has denied due process in that he was not given notice of the
hearing from which the Order and Capias stem. Further, even if Petitioner had received notice, it
does not set out the alleged misconduct with particularity specifically pertaining to the alleged
offense alleged to have been committed by Petitioner which made basis for his arrest and
creating an obligation to provide any information to the officers of/for the NBPD. In absence of
the alleged misconduct, even if Petitioner would have received the notice it would not have been
in compliance with due process requirements.
“Notice, to comply with due process requirements, must be given sufficiently in
advance of scheduled court proceedings so that reasonable opportunity to prepare
will be afforded, and it must 'set forth the alleged misconduct with particularity.' ”
In re Gault, 387 U.S. 1, Supreme Court 1967. Due process of law requires notice
In re Jason Childress Page 7 of 18
of the sort we have described – that is, notice which would be deemed
constitutionally adequate in a civil or criminal proceeding. It does not allow a
hearing to be held in which [] freedom [is] at stake without giving [] timely
notice, in advance of the hearing, of the specific issues that must be met. Nor, in
the circumstances of this case, can it reasonable be said that the requirement of
notice was waived. (Id.)
Petitioner was neither given notice, nor afforded opportunity to present objections to the
allegation(s) made against him. Petitioner cannot be expected to be able object to allegations not
made known to him.
“Service of process is the way in which the defendant gets notice of the claim
against him and its allegations. The Supreme Court has held that due process
requires “notice reasonably calculated, under the circumstances, to apprise the
interested parties of the pendency of the action and afford them the opportunity to
present their objections.” Mullane v. Central Hanover Bank & Trust Co., 339 U.S.
306, 314 (1950).
As a result of Petitioner not being provided notice of the hearing from which the Order
and Capias stem, the Order is constitutionally infirm, invalid and null and void, likewise is the
Capias. Further, a failure to set forth the alleged misconduct with particularity in said notice (see
Apx. Tab F), the Order and Capias are constitutionally infirm, invalid and null and void.
“'[U]nder our cases, a judgment entered without notice or service is
constitutionally infirm.' An elementary and fundamental requirement of due
process in any proceeding is notice reasonably calculated, under the
circumstances, to apprise the interested parties of the pendency of the action and
afford them the opportunity to present their objections.” Peralta v. Heights
Medical Center, Inc., 485 U.S. 80 (1988)); quoting Mullane v. Central Hanover
Bank & Trust Co. “Failure to give notice violates the most rudimentary demands
of due process” (Id.)
Petitioner was further denied due process in that he was denied the opportunity to be
heard, as a result of not being provided notice of the hearing from which the Order and Capias
stem. “A fundamental requirement of due process is the 'opportunity to be heard.” Grannis v.
Ordean, 234 U.S. 385, 394.
In re Jason Childress Page 8 of 18
[V]oid orders may be circumvented by collateral attack[]. Mapco, Inc. v. Forrest, 795
S.W.2d 700, 703 (Tex. 1990) (orig. proceeding).” Sanchez v. Hester, 911 S.W.2d. 173 – Tex:
Court of Appeals, 13th Dist. 1995. As stated supra, this petition is, inter alia, a collateral attack
on the Order and Capias, and same are void as a result of Petitioner being denied Due Process
resulting from a failure to provide notice and to set forth therein with particularity the alleged
misconduct, resulting in the court failing to secure personal jurisdiction over Petitioner for
purposes of the hearing from which the Order and Capias stem. “[T]he position adopted by the
Texas Supreme Court reflects the principle under Texas law that the orders of a court with no
jurisdiction over the parties or property are void.” See State v. Owens, 907 S.W.2d. 484, 485
(Tex. 1995) (per curiam); Thomas v. Miller, 906 S.W.2d. 260 (Tex.App.-Texarkana 1995) (orig.
proceeding); see also Browning v. Placke, 698 S.W.2d. 362, 363 (Tex. 1985) (orig. proceeding)
(comparing void and voidable judgments) Sanchez v. Hester, supra.
II. ISSUES THAT BAR PROSECTION AND CONVICTION
As stated and demonstrated supra, and by the Appendices attached hereto, and by the
silence of all involved and interested parties thereto, the trial court is without jurisdiction over
the underlying cause to the instant case. Without jurisdiction, the trial court is without power to
hear the underlying cause to the instant case and the prosecutor for the state and,or county,
ABIGAIL WHITAKER (Whitaker), is barred form prosecution and conviction of Petitioner for
the criminal allegation and cause against him. Even if the trial court had jurisdiction, the
allegation made against Petitioner is inapplicable thereto, under the circumstances.
A. Sec. 38.02. IS INAPPLICABLE UNDER THE CIRCUMSTANCES
T.P.C. Sec. 38.02. FAILURE TO IDENTIFY.
(a) A “person” commits an offense if he intentionally refuses to give his name,
In re Jason Childress Page 9 of 18
residence address, or date of birth to a peace officer who has lawfully arrested the
“person” and requested the information.
(d) If it is shown on the trial of an offense under this section that the defendant
was a “fugitive from justice” at the time of the offense, the offense is:
(1) a Class B misdemeanor if the offense is committed under Subsection
(a); or
T.P.C. Sec. 1.07. DEFINITIONS. (a) In this code:
(38) "Person" means an individual, corporation, or association.
The legal term “Person” falls under the following Doctrines of Statutory Interpretation
used by both the federal congress and state legislatures in drafting legislation, as well as the
federal and state judiciary departments to interpret legislation passed into law by the federal
congress and state legislatures:
Ejusdem Generis: Of the same kind, class, or nature. In the construction of laws,
wills, and other instruments, the "ejusdem generis rule" is, that where general
words follow an enumeration of persons or things, by words of a particular and
specific meaning, such general words are not to be construed in their widest
extent, but are to be held as applying only to persons or things of the same general
kind or class as those specifically mentioned. Black, Interp. of Laws, 141;
Goldsmith v. U. S., C.C.A.N.Y., 42 F.2d 133, 137; Aleksich v. Industrial Accident
Fund, 116 Mont. 69, 151 P.2d 1016, 1021. The rule, however, does not necessarily
require that the general provision be limited in its scope to the identical things
specifically named. Nor does it apply when the context manifests a contrary
intention. The maxim "ejusdem generis," is only an illustration of the broader
maxim, "noscitur a sod's." State v. Western Union Telegraph Co., 196 Ala. 570, 72
So. 99, 100. Black's Law, 4th Ed.
Noscitur a Sociis: It is known from its associates. 1 Vent. 225. The meaning of a
word is or may be known from the accompanying words. 3 Term R. 87; Broom,
Max. 588. Morecock v. Hood, 202 N.C. 321, 162 S.E. 730, 731; Louis Pizitz Dry
Goods Co. v. Fidelity & Deposit Co. of Maryland, 223 Ala. 385, 136 So. 800,
801. The doctrine means that general and specific words are associated with and
take color from each other, restricting general words to sense analogous to less
general. Dunham v. State, 140 Fla. 754, 192 So. 324, 325, 326. Black's Law, 4th
Ed.
Expressio unius est exclusio alterius: Expression of one thing is the exclusion of
another. Co.Litt. 210a; Burgin v. Forbes, 293 Ky. 456, 169 S.W.2d 321, 325;
Newblock v. Bowles, 170 Oki. 487, 40 P.2d 1097, 1100. Mention of one thing
In re Jason Childress Page 10 of 18
implies exclusion of another. Fazio v. Pittsburgh Rys. Co., 321 Pa. 7, 182 A. 696,
698; Saslaw v. Weiss, 133 Ohio St. 496, 14 N.E.2d 930, 932. When certain
persons or things are specified, in a law, contract, or will, an intention to exclude
all others from its operation may be inferred. Little v. Town of Conway, 171 S.C.
27, 170 S.E. 447, 448. Under this maxim, if statute specifies one exception to a
general rule or assumes to specify the effects of a certain provision, other
exceptions or effects are excluded, People v. One 1941 Ford 8 Stake Truck,
Engine No. 99T370053, License No. P.8410, Cal., 159 P.2d 641, 642. Black's
Law, 4th Ed.
Sec. 38.01. DEFINITIONS. In this chapter:
(5) "Fugitive from justice" means a person for whom a valid arrest warrant has been
issued.
As stated in Petitioners Countercomplaint (see Apx. Tab K pg.73 - 76, #168. - 171.), he
is not a “Person,” rather, he is a member of the people. Petitioner is neither a “Person,” nor was
he a “Fugitive from justice” and there is no evidence to the contrary.
In order for Sec. 38.02 (a) to be applicable, a “person” must first be “lawfully arrested”
before the “person” is required to “give his name, residence address, or date of birth.” Petitioner
is not a “person,” even if he is or was at the time, he was not lawfully arrested as he had not
committed an offense classed as a felony or as an offense against the public peace, or any other
offense, in the presence or within view of any of the officers (see Tex. C. Crim. Proc., Art. 14.01
& 14.03) of/for the NBPD involved in Petitioner's unlawful arrest. In fact, when the officers
of/for the NBPD arrived, Petitioner was being assaulted (see Apx. Tab J). Without committing
the aforementioned offenses in the presence or within view of those officers, Petitioner's arrest
was unlawful. Being that Petitioner had committed no offense and was unlawfully arrested, he
was not required to provide any identifying information contemplated within Sec. 38.02 to any of
the officers of/for the NBPD involved in his unlawful arrest, therefore, Sec. 38.02 is inapplicable
to Petitioner under the circumstances. Further, Whitaker cannot prove beyond a reasonable doubt
that the alleged offense Petitioner is accused of occurred while the officers of/for the NBPD were
In re Jason Childress Page 11 of 18
in the lawful discharge of their official duties. Considering all the evidence and lack thereof, it
follows that there is no proof that the officers were authorized to arrest Petitioner. Without such
evidence, the Whitaker cannot establish that the officers of/for the NBPD were lawfully
discharging their official duties. As there is no evidence showing Petitioner's arrest was lawful,
he had the right to refuse to provide any information to the officers of/for the NBPD involved in
his unlawful arrest. Accordingly, the conviction of Petitioner for the alleged offense is not
authorized by the evidence. The officers of/for the NBPD, as well as the prosecutor, would have
it believed that a “person,” or anyone for that matter, can be arrested without having committed
an offense, in absence of any warrant, and then be required to provide information to the
arresting officer(s). Such an event is not contemplated or condoned by Sec. 38.02.
In order for Sec. 38.02 (d) (1) to be applicable, it must be “shown on the trial of an
offense under [] section [38.02] that the defendant was a “fugitive from justice” at the time of the
offense.” A “trial” has not shown the Petitioner was “a fugitive from justice.” Further, and again,
there is no mention or evidence of an offense which Petitioner had committed giving rise to or
providing cause for his arrest, nor is there any evidence Petitioner was a “fugitive from justice,”
in fact, the record is bereft of any warrant for Petitioner, save the Capias challenged herein and
hereby. Furthermore, even if Petitioner had committed some offense and was lawfully arrested
by the officers of/for the NBPD, application of Sec. 38.02 (d) (1) would be premature in absence
of a “trial” to show that Petitioner was “a fugitive from justice.”
B. WITNESSES DISQUALIFIED
As demonstrated supra, and within the documents attached hereto, the officers of/for the
NBPD are disqualified as witnesses due to noncompliance and misconduct, false arrest and
violations of procedural due process and due course of law, as well as dishonesty and deceit by
In re Jason Childress Page 12 of 18
claiming Petitioner had been lawfully arrested while either failing or intentionally neglecting to
state for what offense Petitioner had been arrested for, in addition to, illegal seizure of property,
to wit: a video recording camera used by Petitioner to record the events leading up to his false,
unlawful arrest, which evidences Petitioner was unlawfully arrested and a false report had been
made against Petitioner: Jus ex injuria non oritur. “A right cannot arise from a wrong.” 4 Bing.
639.; Nemo punitur pro alieno delicto. “No one is to be punished for the crime or wrong of
another.”; Nullus commodum capere potest de injuri su propri. “No one shall take advantage of
his own wrong. Co. Litt. 148.”; Ubicunque est injuria, ibi damnum sequitur. “Where ever there is
a wrong, there damages follow.” 10 Co. 116.; Lex citius tolerare vult privatum damnum quam
publicum malum. “The law would rather tolerate a private wrong than a public evil.” Co. Litt.
152; see also Apx. Tab K pg.15 - 18, #31.
Pursuant to the federal and state Rules of Evidence (see Apx. Tab K pg.36 - 37, #81. -
84.) and case law (see Apx. Tab K pg.37 - 39, #85. - 86.), Whitaker is not a competent and
qualified witness due a lack of personal knowledge and status as a prosecutor. Ida Paniagua is
not a competent or qualified witness pursuant to the federal and state Rules of Evidence due to a
lack of personal knowledge (see Apx. Tab K pg.36 - 37, #83.). Whitaker, is barred from
prosecution of the allegation and charge against Petitioner, due the trial court's lack of
jurisdiction, lack of evidence that Petitioner had committed any crime, inapplicability of Sec.
38.02 to Petitioner and a lack of any credible witnesses thereagainstr, and conviction of him for
the alleged offense is barred as a result of a bar to prosecution.
PLEADING SHALL BE CONSTRUED TO DO JUSTICE
"Following the simple guide of rule 8(f) that all pleadings shall be so construed as
to do substantial justice"... "The federal rules reject the approach that pleading is a
game of skill in which one misstep by counsel may be decisive to the outcome
In re Jason Childress Page 13 of 18
and accept the principle that the purpose of pleading is to facilitate a proper
decision on the merits." The court also cited Rule 8(f) FRCP, which holds that all
pleadings shall be construed to do substantial justice. Conley v. Gibson, 355 U.S.
41 at 48 (1957)
"The assertion of federal rights, when plainly and reasonably made, are not to be
defeated under the name of local practice. Davis v. Wechler, 263 U.S. 22, 24;
Stromberb v. California, 283 U.S. 359; NAACP v. Alabama, 375 U.S. 449
Pro se pleadings are to be considered without regard to technicality; pro se
litigants' pleadings are not to be held to the same high standards of perfection as
lawyers. Jenkins v. McKeithen, 395 U.S. 411, 421 (1959); Picking v. Pennsylvania
R. Co., 151 Fed 2nd 240; Pucket v. Cox, 456 2nd 233
"Pleadings are intended to serve as a means of arriving at fair and just settlements
of controversies between litigants. They should not raise barriers which prevent
the achievement of that end. Proper pleading is important, but its importance
consists in its effectiveness as a means to accomplish the end of a just judgment."
Maty v. Grasselli Chemical Co., 303 U.S. 197 (1938)
The plaintiff's civil rights pleading was 150 pages and described by a federal
judge as "inept". Nevertheless, it was held "Where a plaintiff pleads pro se in a
suit for protection of civil rights, the Court should endeavor to construe Plaintiff's
Pleadings without regard to technicalities. Picking v. Pennsylvania Railway, 151
F.2d. 240, Third Circuit Court of Appeals
It was held that a pro se complaint requires a less stringent reading than one
drafted by a lawyer per Justice Black in Conley v. Gibson (see case listed above,
Pro Se Rights Section). Puckett v. Cox, 456 F. 2d 233 (1972) (6th Cir. USCA)
"... allegations such as those asserted by petitioner, however inartfully pleaded,
are sufficient to call for the opportunity to offer supporting evidence. We cannot
say with assurance that under the allegations of the pro se complaint, which we
hold to less stringent standards than formal pleadings drafted by lawyers... ".
Haines v Kerner, 404 U.S. 519 – 521, (1972)
"Court errs if court dismisses pro se litigant without instructions of how pleadings
are deficient and how to repair pleadings." Plaskey v. CIA, 953 F.2nd 25
Nowhere can be found a competent attorney that is able to execute the proper
remedy without embarrassing the Court, Corpus Juris Secundum 2d Vol. 7 section
25.
In re Jason Childress Page 14 of 18
REQUEST FOR RELIEF
For the reasons set forth herein, Petitioner, Jason Childress, requests that this Court grant
his Petition for Writ of Habeas Corpus and relieve Petitioner of his unlawful restraint resulting
from the void Capias.
Respectfully submitted,
/s/: Jason Childress
Jason Childress
9141 Gristmill Ct.
Fort Worth, Texas
jchildress1980@gmail.com
In re Jason Childress Page 15 of 18
VERIFICATION
Executed without the United States:
Pursuant to 28 U.S. Code § 1746 (a): I, Jason Truman Childress, Petitioner herein, in lieu
of Notarization of this document due to an inability to pay therefor, do declare, certify, verify
and state under penalty of perjury under the laws of the United States of America that I am a
living man, of lawful age and competent to testify to the facts stated herein, and that the facts and
statements made herein by me are true and correct.
/s/: Jason Childress
Executed on this 3rd day of August , 2015.
In re Jason Childress Page 16 of 18
CERTIFICAT E OF SERVICE
I, Jason Childress, Petitioner herein, hereby certify that a true and correct copy of this
Petition for Writ of Mandamus is being sent via email on this 3rd day of August , 2015 to
the following:
Charles A. Stephens
Comal County Court at Law 2
Comal County Courthouse Annex
150 N. Seguin, Ste. 301
New Braunfels, Texas 78130
Abigail Whitaker
Comal County District Attorney's Office
Comal County Courthouse Annex
150 N. Seguin Ave. Ste. 307
New Braunfels, Texas 78130
/s/: Jason Childress
Jason Childress
9141 Gristmill Ct.
Fort Worth, Texas
Submitting this 3rd day of August , 2015.
In re Jason Childress Page 17 of 18
NO.
In Re Jason Childress,
Petitioner
APPENDIX TO AND FOR PETITIONER'S PETITIONS
FOR WRIT OF HABEAS CORPUS AND WRIT OF MANDAMUS
List of Documents
1. “PR BOND”........................................................................................................ Tab B
2. Petitioner's Letter to Trial Court.............................................................................. Tab C
3. Trial Court Online Record Screenshot................................................................ Tab D
4. “COMPLAINT (OCA)”...................................................................................... Tab E
5. RETURNED NOTICE........................................................................................ Tab F
6. “AFFIDAVIT/FAILURE TO APPEAR”............................................................. Tab G
7. “ORDER FOR ARREST-FAILURE TO APPEAR”........................................... Tab H
8. “CAPIAS-FAILURE TO APPEAR”................................................................... Tab I
9. Affidavit for Countercomplaint........................................................................... Tab J
10. AFFIDAVIT OF COUNTERCOMPLAINT........................................................ Tab K
11. TABLE OF AUTHORITIES: POLICE REPORTS ARE HEARSAY................. Tab L
12. TABLE OF AUTHORITIES: LAW OF VOIDS IN TEXAS.............................. Tab M
13. Return Receipt: BOBBIE KOEPP....................................................................... Tab N
14. Return Receipt: Kevin M. Schoch....................................................................... Tab O
15. Return Receipt: TOM WIBERT........................................................................... Tab P
16. Return Receipt: ABIGAIL WHITAKER............................................................. Tab Q
17. DEMAND FOR DISMISSAL............................................................................. Tab R
In re Jason Childress Page 18 of 18
APPENDIX
TAB B
BAII, BoNDu Nr(' tsvf qL
F ILEE
Type of Bond:
SPN: lv
2lll $EP l6 ,Nfr#;ubstt
the STATE OF TEXAS. in the oenal sum 6f
'r4ru): -rs ?ooA
in addition thereto, we are bound for the payment of all fees and expenses that may be incurred by any peace officer in
) Dollars
re-arresting the said principal in the event any of the hereinafter stated conditions of this bond are violated for the payment
of which sum or sums will and truly to be made, we do bind ourselves, and each of us, our heirs, executors and administrators,
jointly and severally.
The condition of this bonci is that the Defendant has been charged with T
aJdry- offense and to secure
ure his release from cuslqdy_is into this S.bligation binding him to appear
custqdy is entering inio
before shown above, of (!-d)rfi A-4 .County,
City of Texas.
Now therefore, if the said Principal shall well and truly make his personal appearance before said Court lnstanter as
well as before any other court to which the same may be transferred and for any and all subsequent proceedings that may be
had relative to said charge in the court of criminal actions based on said charge, and there remain from day to day and term to
term of said courts, until discharge by due course of law, then and there to answer said accusation against him, this obligation
shall become void, othenvise to remain in fullforce and effect.
Taken and this zo ) y signed
Sheriff
Deputy
Surety
ADDRESS
Surety
ADDRESS
OATH OF SURETIES
STATE OF TEXAS
COUNTY OF
t7
We, each of us, rR_ Sooo
Do wear that we are worth in our own right,I-t least the sum of Dollars,
After deduction from our property all that which is exempt by Laws of the STATE OF TEXN from forced sale,
and after satisfying all encumbrances upon og{ property which are known to us;
and that we reside in the count v d (h/)US4 and have property in the STATE oF TExAs
Liable to execution worth:
The Said Sum of Dollars
The Said Sum of Dollars
Surety Surety
SIGNATURE
Subscribed to before me this
LE},IDAMC i(AY BEAIRUdATI,
gt.rtB 0f lEx$s
S,l,i-r:; Pul:ir;:,
y' rss
I -'ft r r::lissitn.ExPi
ffi.*&-t*
'uGE_lr_ 0Fll--
APPENDIX
TAB C
a,* r T C),i\drcss
tlqt Grrstcnil\ Ct,
-r.(, \ir(r"., T*
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Ctert Cctr.t
Co*a\ 0fY Ccrrt c^+ Lau.:
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fv"> \s, 111 .I{ tjO
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a, 1os... C).i\d,cs: herc\1 -,\a\< rhe 1.,\\ot.:ir6 "
r C,urr'cnrty b<.ffr h,{-U ot {ne \}'\\o" Counr \ a.'! :Tt:t:6."c*Y(
a' Po"rf uft\i\ t"*
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h,
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. ,.
u.F \
t1 b ,.;J
tne \h\\or ,Coun\;l, ,9'\-* cN t :tc'\r 6 fl*y'e\1J:[T
.."::, , [piJ.a"]-r'lt. ? ,'i' ^,?:=):ltn,r.?Y*;$H,
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fnr:orrdc\ -t h'orrt
[o Lrit tit cR il^;'VaUr.( \i*J, Trxc'", -[r"nk-
ftA t( af fta\ addr r':<, Iy'rrc( lgOq. Iou , I
soN thiUrcrs
IO BEATRUEAND
tiwbMr
BOBBIEKOEPP.I.
'
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APPENDIX
TAB D
APPENDIX
TAB E
zorrcn tstP
IN IHE NAME AND BY AUIHORITY OF THE STATE OF TEMS
I, IDA PANIAGUA, BEING DULY SWORN, DO STATE UPON MY OATH THAT I HAVE GOOD REASON TO
BELIEVE AND DO BELIEVE BASED UPON THE INFORMATION SUPPLIED BY JAMES BELL AND I CHARGE THAT
BEFORE THE MAKING AND FILING OF THIS COMPLAINT, ON OR ABOUT THE 4TH DAY OF SEPTEMBER, 2014, IN
THE COUNIY 0F COMAL AND STATE 0F TEMS, JASON TBUI,IAN CHIUELESS, DID THEN AND IHERE, KNOWING
THAT JAMES BELL WAS A PEACE OFFICER, INTENIIONALLY REFUSE TO GIVE HIS NAME, DATE OF BIRIH, AND
ADDRESS TO JAMES BELL, A PEACE OFFICER WHO HAD LAWFULLY ARRESTED THE DEFENDANT AND
REQUESTED THE INFORMATION, AND THE DEFENDANT WAS THEN AND THERE A FUGITIVE FROM JUSTICE,
AGAINST THE PEACE AND DIGNITY OF THE STATE.
CHARGES: FAILURET0IDENTIFYFUGITM
CLASS A
N TO AND SUBSCRIBED BEFORE ME BY IDA PANIAGUA, A CREDIBLE.PERSON, THIS I{ OO'
OF , A.D., 2014,
JENNIFER A. THARP
COMAL COUNTY CRIMINAL DISTRICT ATTORNEY
FOR JENNIFER A. THARP BY:
07/14/1980 1443A28
ARREST DATE: 09/04/2014
,\a
BOND AM0UNT: $3,000.00
TRN: 9213066511 TRS: A001 _l .s
fs $.
Asd;, (>
.a
/r\
&
5
.+
tr-=s-u*'$
a
€ ? 8so
I
l
I
!
I
2o14cR{SC
IN THE NAME AND BY AUTHORITY OF THE STATE OF TEMS
I, THE UNDERSIGNED AUTHORITY REPRESENTING THE OFFICE OF THE CRIMINAL DISTRICT ATTORNEY
OF COMAL COUNTY, IN SAID STATE, ON THE WRITTEN AFFIDAVIT OF IDA PANIAGUA, A COMPETENI AND
CREDIBLE PERSON HEREWITH FILED IN THE COUNTY COURT AT LAW DO PRESENT IN AND TO SAID COURT
THAT ON OR ABOUT THE 4TH DAY OF SEPTEMBER, 2014, AND BEFORE THE MAKING AND FILING OF THIS
INFORMATIOI'I, IN THE COUNTY OF COMAL AND THE STATE OF TEMS, JASON TRUIUAN CH!LDRE-S9, DID THEN
AND THERE, KNOWING THAT JAMES BELL WAS A PEACE OFFICER, INTENTIONALLY REFUSE TO GIVE HIS NAME,
DATE OF BIRTH, AND ADDRESS TO JAMES BELL, A PEACE OFFICER WHO HAD LAWFULLY ARRESTED THE
DEFENDANT AND REQUESTED THE INFORMATION, AND THE DEFENDANT WAS THEN AND THERE A FUGITIVE
FROM JUSTICE,
AGAINST THE PEACE AND DIGNITY OF THE STATE
JENNIFERA. THARP
COMAL COUNTY CRIMINAL DISTRICT ATTORNEY
FOR JENNIFER A. THARP BY:
ANT CRIMINAL DISTRICT A
07t1411980 1443028
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(
APPENDIX
TAB F
112712015 3:17 PM
GOPY
cAusE No,2014CR1548 F'LtD F,R RE',R, f rtED r0g Rr
il[fi Jilt.zl ffi
CHARGE: FAIL TO IDENTIFY FUGITIVE FROM JUSTICE
ft e9 ?Afi Jiril 27 ,il
THE STATE OF TEXAS
VS.
r;
4,
['1,t,;
COU.
4ry*
JASON TRUMAN CHILDRESS
461 CO ROAD 309
VALLEYVIEWTX 76272
NOTICE OF COURT APPEARANCE
BY ORDER OF THE COURT, notice is hereby given that the above entitled and numbered cause is set for
hearing at the Comal County Courthouse Annex 3'd Floor, 150 North Seguin Ave,, Suite 301, New
Braunfels, Texas 78130 on the February 03, 2015 8:30 AM The purpose of the hearing will
be for Arraignment.
1) FAILURE TO APPEAR BY THE DEFENDANT WILL RESULT IN HIS/HER BOND BEING FORFEITED AND
A WARRANT TSSUED FOR HtS/HER ARREST.
2l couRT cosTs oF APPRoX|MATELY $250.00 ARE DUE AT THE CONCLUSTON OF YOUR CASE -
CASH, MONEY ORDER OR CREDIT CARD;
3) DRESS APPROPRIATELY - SHORTS ARE NOTALLOWED tN THE COURTROOM. TANK TOPS,
HALTER TOPS, T-SHIRTS WITH ANY OBSCENE, VULGAR, DRUG OR ATCOHOL RELATED PICTURES,
PROMOTIONS OR WORDING, WILL NOT BE ALLOWED IN THE COURTROOM.
4) HATS, CAPS AND/oR BANDANNAS W|LL BE REMOVED FRoM THE HEAD.
s) MoBTLE PHONES MUST BE TURNED OFF OR 0N V|BRATE,
6) LOUD TALKTNG OR D|SRESPECIFUL BEHAVTOR t5 NOTTOLERATED rN THE COURTHOUSE.
CHILDREN ARE NOTALLOWED IN THE COURTROOM ATANY TIME.
7l ALL PTERCTNGS (EXCEPT FOR WOMEN',S EARRTNGS) W|LL BE REMOVED OR COVERED.
BY THE AUTHORITY OF THE COUNTY COURT AT IAW #2 JUDGE:
Comal County Court at Law f,2
Ashley Evans, Court Administrator
150 North Seguin Ave., 301
New Braunfels, Texas 78130
(830) 221-1180
ATTORNEY FOR DEFENDANT:
TOBEATRUEAND
6-qgB
iviT
6 (/lY'f
i8
*3
aR
'.'q *=Ez-
C"*> s t g?*{'
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o
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"el
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:
APPENDIX
TAB G
3nnV5 8:58AM
CAUSE NO.2014CR1548
THE STATE OF TEXAS
COUNTY COURT AT
vs. LAW OF
JASON TRUMAN CHILDBESS
coMAL COUNTY, TEXAS
AFFIDAVIT
This is to certify that l, PRESToN DAVIS ,THE counT BA|LIFF, in
and for comat
county, Texas on or after February 09, 201s, pursuant to tne oroe,
Court at Law in and for Comal County, Texas,'did distinctly, .t tn.
in,
of c;;;iy
ooor of Comat County
court at Law in comal county, Texas, callthe name of tne oetenoant, JASON
TRUMAN CHILDRESS, in the above styled and numbered cause,
and a reasonable
wgs given said Defendant after suih callwas made in which to
!im9 appear, veine saio
Defendant came not, but wholly made default.
SUBSCRIBED AND SWORN TO before me, the undersigned authority
by the said CSURT
BAILIFF, on February 20, 20.1S.
BOBBIE KOEpp, County Cterk
BOND DATE: September 12,ZO14
CASE FILED DATE:1211 5/201 4
SID NUMBER:
BEA'IRUEAND
t
APPENDIX
TAB H
3m2015 9:02AM
GAUSE NO.20{4CRts48
T}IE STATE OF TEXAS COUNTY COURT
VS AT LAW NO.z
JASON TRUMAN CHILDRESS GOMAL COUNTY, TEXAS
ORDER FOR ARRE$T
FAILURE TO APPEAR
on February 03, 2015, it appearing to the court that JASON TRUMAN
cHlLDREss, has FAILED To APPEAR, it is HEREBY ORDERED by the
Gourt that said Defendant, JAsoN TRUMAN GHILDRESS, be arrested
and detained in the Gomal Goungr Jail or other appropriate facitity of
detention until he can be brought before this Gourt.
The Glerk of this court is directed to issue a Gapias directing the
proper officer to arrest JAsoN TRUMAN GHltDREss, in accordance
with this order.
signed u,i" u,dd day or
t n, ,2&.
O
BoND AMoUNT, 3, SSS.Y GAsH oR sURETY oNLY
'
tBffi&'.t?f,:A'TRUEAND
APPENDIX
TAB I
3D12015 9:02 AM
CAUSE No.4!re81g4g
rHEsrArEoFrExAS
JASON TRUMAN CHILDRESS
ilL E C0PY IN THE COUNTY COURT AT
LAW OF
COMAL COUNTY, TEXAS
IlqSlqtq of Texas, To any peace Officer of the Stare of Texas,
t Greetings:
YOU ARE HEBEBY COMMANDED to take the body of
JASON TRUMAN CHTLDRESS
461 CO ROAD 30e
VALLEY VIEW TX 76272
if,found.in your county, and. him sglelv
!eep, or so provide that you have him before the
Honorable county court at Law of Ccjtrrtlt'county, at the courthouse of said county, in rhe city
of NEW BRAUNFELS, immediately then and there to
tn"-si"ie of rexas upon information
charging him with Vioration of promise to Appear on February
"n.*.r, oa, ior s for the charge ol
VIOLATION OF PROMISE TO APPEAF/ FAIL TO IDENTIFY
FUGITIVE FROM JUSTICE
a misdemeanor, filed in our said Court on December 15,
ZO14
Herein Fail Not, and make due retum ol this writ.
y'J}r::t;Fro"tBtE KoEPf:clerk of said county court, and the seat thereof on this rhe 2nd day
;Sz , County Clerk
s"$
!o:
a L): iZ.=
!{S
.j.f *:
)-".J
RIFF'S
----r:- day of
Received this writ on the
day of . zo.---_, and r executed the same on the
,'noov
,20-=--_, ov tat<ing the or tnf wiinin nameo
==--
Defendant_
BOB HOLDEH, SHERIFF
COMAL COUNTY, TEXAS
By Deputy
BOND $3,5OO.OO CASH OR SURETY ONLY
RACE WHITE
SEX: MALE
DOB:07/14l1980
DL NO: 170SS43S
PID NO: 1747799
OFFENSE DATE: September 04,ZO14
r,
' ,rlArr-Ur rtsAAS TRN:9213066511
COUI TOFCOMAL
t cemifu this !o be a tnre and, correct
copy of, the recod FIIID in the
Offraid Churt remrdo of Cmuy Corrt
m Eawon thi*sdaemd
fuceon' fF-a,t '"
,,AGEJ!-otll*-
APPENDIX
TAB J
Affidavit for Countercomplaint
I, Jason Truman Childress, hereinafter, Affiant, declare, certify, verify, and state that I am
a living man of lawful age and competent to testify, and that I have personal knowledge of the
following facts which are true and correct based upon my knowledge and belief, which
knowledge and belief I believe to be true:
1. On September 4, 2014 at around 6:00 p.m., an unknown Individual, hereafter referred to
as Intruder, entered a home Affiant was house-sitting for its owner Jay Goodfriend, at
567 Avenue A, on New Braunfels, Comal County, Texas.
2. Intruder, by intrusion of its entire body entered inside the home without effective consent
from either Jay Goodfriend or Affiant.
3. Intruder, was later identified via documents produced by the New Braunfels Police
Department in Response to an Open Records / Public Information Request, as either
Kevin M. Schoch / Kevin Shock (documents produced refer to Intruder as both Kevin
Schoch and Kevin Shock).
4. Intruder is an ex-Dallas County Deputy Constable fired in 2011 for committing the
offense, Driving While Intoxicated.
5. Affiant gave “notice” to Intruder through use of oral communication for it to exit and
leave the home.
6. Intruder refused to exit and leave the home.
7. Affiant attempted to remove Intruder from the home by forcing it out of the home
through the front door by pushing Intruder through the front doorway.
8. Intruder, after being removed from the home blocked Affiant from closing the door
thereto, by placing its foot in between the door and door frame, thereby, preventing
Affiant from closing the door and securing the home.
9. Intruder stated it was an OFFICER FOR DALLAS COUNTY.
10. Intruder stated it was in possession of a warrant.
11. Intruder stated the alleged warrant was in connection with a pending case in DALLAS
COUNTY.
12. Affiant stated to Intruder that litigation and testimony pertaining to the alleged pending
case in DALLAS COUNTY were pending in federal court, in the district court of the
United States, WESTERN DISTRICT OF TEXAS, SAN ANTONIO DIVISION.
13. Affiant stated to Intruder, Affiant is a witness involved in the pending litigation and
testimony in the federal court.
14. Affiant stated to Intruder that it did not possess any warrant.
15. Affiant stated to Intruder that there was no warrant in the court record of arrest of any
party involved with the alleged pending case in DALLAS COUNTY.
16. Affiant stated to Intruder that it was tampering with a witness by and through coercion to
secret Affiant to a jail in order to prevent Affiant from testifying in the pending federal
court proceedings. [Tampering with a witness]
17. Affiant demanded Intruder identify himself by producing a badge, photo identification
and business card, as well as, the warrant Intruder claimed was in his possession.
18. Affiant demanded the aforementioned identification due to the fact there was no marked
police vehicle in front of the home, or any car for that matter, and Intruder was not in
police uniform, rather, blue jeans and gray shirt.
19. Intruder refused to produce any form of identification.
Page 1 of 7
Affidavit for Countercomplaint
20. Intruder refused to produce the warrant Intruder claimed to be in possession of.
21. Affiant demanded Intruder either leave the home or that Intruder produce the
aforementioned identification and the warrant Intruder claimed to be in possession of.
22. Intruder continued to identify itself as an OFFICER of and for DALLAS COUNTY.
23. Intruder continued to refuse to produce any form identification. [Impersonating Pub.
Servant]
24. Intruder knew it was not an OFFICER for or of DALLAS COUNTY.
25. Intruder intended to induce Affiant to submit to its pretended official authority.
26. Intruder continued to refuse to produce the warrant Intruder claimed to be in possession
of.
27. Affiant commanded Intruder through oral communication to remove its foot and to leave
the home.
28. Intruder refused to remove its foot and leave the home. [Criminal Trespass]
29. Affiant then kicked Intruder’s foot, thereby, removing it from between the door and door
frame allowing Affiant to close and lock the front door.
30. Intruder began threatening Affiant.
31. Intruder began stating it was going to call the U.S. Marshalls service and local tactical
team to “storm the house.”
32. Affiant again demanded the aforementioned identification and warrant Intruder claimed
to be in possession of, be produced.
33. Intruder stated to Affiant that it was “sick of Affiant’s games” and was now calling the
U.S. Marshalls service and local tactical team to “storm the house” and remove Affiant
therefrom. [Obstruction or Retaliation – unlawful act of false arrest, unlawful restraint
and unlawful imprisonment]
34. Intruder exited the porch area of the home and headed towards the south side of the front
of the home.
35. Affiant obtained a video camcorder that was within the home and headed to the front-
corner bedroom having a clear view of the south side of the home and began recording
Intruder.
36. Affiant recorded Intruder open a door to a black SUV parked at the south side of the
home in front of the neighboring home.
37. Intruder was recorded removing a firearm and bullet proof vest and affixing the vest to
Intruder’s torso.
38. Intruder was recorded using its cell phone.
39. It was later determined through documents produced by the New Braunfels police
department Intruder was contacting and requesting aid of officers of and for the New
Braunfels police department.
40. Intruder was then recorded entering into the back yard of the home through a fence gate
thereto. [Criminal Trespass, Second Count]
41. Intruder was recorded entering into the enclosed back porch of the home.
42. Affiant opened the back door slightly and allowed Intruder to see that it was now being
recorded.
43. Intruder began stating that it was not at the home to make an arrest.
44. Intruder began stating that it was there in order to gain a signature to a “PR Bond.”
[Attempted Simulated Legal Process]
Page 2 of 7
Affidavit for Countercomplaint
45. Affiant again demanded the aforementioned identification be produced, as well as, the
warrant Intruder claimed to be in possession of and the alleged “PR Bond.”
46. Intruder stated that it would produce its identification, the alleged warrant and alleged
“PR Bond”, if Affiant would meet Intruder back at the front door.
47. Affiant stated that he would meet Intruder and would receive the demanded
identification, alleged warrant and alleged “PR Bond.”
48. Affiant recorded the aforementioned conversation and further recorded Intruder leave the
enclosed back porch of the home.
49. Affiant went to the front door of the home.
50. Affiant opened the front door to receive Intruder’s identification, alleged warrant and
alleged “PR Bond.”
51. Affiant was dragged out of the home and thrown down on to the front porch.
52. Intruder, now, and hereafter referred to as, Assailant, climbed onto the back of Affiant,
intentionally and knowingly restraining Affiant by force so as to interfere substantially
with the Affiant’s liberty.
53. Assailant began hitting Affiant on and about the back of his head. [Assault, displaying
weapon; Agg. Assault]
54. Assailant began to choke Affiant, preventing Affiant from nasal or oral breathing, thereby
creating a substantial risk that causes death.
55. During the commission of Intruder’s assault on Affiant, Intruder was exhibiting a deadly
weapon, i.e., “pistol in a holster.”
56. Assailant placed its forearm over the mouth and nose of Affiant and placed a call to 9-1-
1.
57. Affiant, in an attempt to breath, bit Assailant.
58. When the 9-1-1 operator answered the Assailant’s call, Affiant began yelling and
screaming for help, stating that Affiant was being attacked by an unknown individual
claiming to be an OFFICER of DALLAS COUNTY.
59. Affiant was told by the 9-1-1 operator to calm down and remain quiet.
60. Affiant continued his plea for aid and assistance.
61. Moments later, Affiant could hear sirens.
62. And moments after hearing said sirens, Affiant observed several police vehicles arrive at
the home.
63. Three individuals in police uniforms ran up and on to the front porch and began hitting
and kicking Affiant.
64. Affiant’s hand were then placed behind his back and handcuffed.
65. Affiant was picked up by his cuffed arms and sat forcefully down on to the front porch
steps.
66. Affiant was questioned, without being marandized and was commanded by an unknown
New Braunfels police officer to be witness against himself by giving his name.
67. Affiant refused to give his name.
68. All individuals present at the home were in absence of any warrant.
69. Affiant had not committed any crime in the presence or view of any individual present at
the home.
70. Affiant, pursuant to Bill of Rights and pertinent to the constitution for the united states
fifth (5th) Amendment and fourteenth (14th) amendment, and United States Supreme
Page 3 of 7
Affidavit for Countercomplaint
Court rulings in Brown v. Texas, 443 U.S. 47 (1979) and Koelander v. Lawson, 461 U.S.
352 (1983) was not required to provide his name or any form of identification.
71. Affiant began stating that Assailant had entered the home without consent and had
removed Affiant therefrom, and began attacking Affiant.
72. Affiant stated that when the officers arrived, they had a duty to prevent said attack and
not to aid therein.
73. Other unknown New Braunfels police officers began demanding Affiant to be a witness
against himself by providing his name and identification.
74. Affiant refused to be a witness against himself.
75. Affiant was threatened with being placed in jail if Affiant refused to be a witness against
himself by providing his name.
76. Affiant refused to be a witness against himself.
77. An unknown New Braunfels police officer placed shackles upon Affiant’s ankles and
placed Affiant in a New Braunfels police vehicle.
78. Affiant was transported directly to the Comal County jail by an unknown New Braunfels
police officer.
79. When Affiant arrived at Comal County jail, Affiant was threatened by jailers, thereof, to
withhold Affiant from the magistrate unless and until Affiant gave witness against
himself by providing his name.
80. Affiant refused to be a witness against himself.
81. Affiant was placed in a cell.
82. Affiant was awoken by being kicked by an unknown jailer who commanded Affiant to be
a witness against himself and proved Affiant’s name.
83. Affiant refused to be a witness against himself and was placed back into the cell.
84. Affiant was again awoken by being kicked by the same unknown jailer who again
commanded Affiant to be a witness against himself and provide Affiant’s name.
85. Affiant refused to be a witness against himself.
86. Affiant was again awoken by another unknown jailer who commanded Affiant to exit the
cell in order to be photographed and fingerprinted.
87. Affiant was taken into a room by the unknown jailer.
88. Affiant began stating that the New Braunfels police officers present at the home had
committed crimes against Affiant and that the unknown jailer was now aiding them and
was also committing the offense of THEFT OF IDENTITY by taking Affiant’s photo and
fingerprints without his consent and for no legal or lawful purpose, and only in order to
compel Affiant to be a witness against himself.
89. Affiant was physically threatened and placed back in the cell.
90. Affiant was again removed by the unknown jailer that had kicked and physically
threatened Affiant and took Affiant’s photograph and finger prints.
91. Affiant was commanded to sign his name on the fingerprint card.
92. Affiant signed the card under duress and through coercion and stated same by writing
“under D on C” upon and fingerprint card.
93. Affiant was brought before an unknown individual alleging to be magistrate.
94. The alleged magistrate informed Affiant of the bail set.
95. Affiant presented questions to the alleged magistrate.
Page 4 of 7
Affidavit for Countercomplaint
96. Alleged magistrate responded by preventing Affiant from being heard by commanding an
unknown jailer present to keep Affiant quiet.
97. Affiant was placed back in a cell.
98. Affiant was released on September 14, 2014 and transported to Dallas County.
99. Affiant is under current threat of being Maliciously Prosecuted by an unknown
“prosecutor” in an unknown County Court AT Law of and in, Comal County, Texas.
100. Threat of Prosecution of Affiant is Malicious as Affiant has received no Summons or
Service of Process, or any Process, or any proper or efficient Pleading.
101. Affiant has been harmed by the acts of Assailant, as well as, acts and omissions of the
New Braunfels Police Department officers, jailers of and for Comal County Jail and
unknown alleged magistrate.
Page 5 of 7
Alfidavit for Countercompleint
YERIFICATION
Executed without the United States:
I, Jason Truman Childress, do declare, certi$r, verift and state under penalty of pujury under the
laws of the United States of America that I arn a livirg mann of lawfirl age and conrpetent to
testi$, and that I have personal knowledge of the foregoing facts which are fiue and correct,
based upon my knowledge and belief, which knowledge and belief I believe to be true.
Pursuant to 28 U.S. Code $ 1746 (a)
Executed on this f.3.J day of IYlarcL of 2015.
Jason Childress
9141 Gristmilt Ct.
FortWorth, Texas
Page 6 of 7
Ailidavit for Countercomplaint
CERTIHCATE OF SERVICE
[, Jason Truman Childress, Sui Juris (not Pro Se), hereby certifr, under penalty of perjury, under
the laws of lhe United States of America, without the federal corporation, "United States", 28
U.S.C. $ 3002 (15), that I am at least 18 years of age, a Denizen to the United States of America,
and that I personally served the following document(s):
1. Affidavit for Countercomnlaint
2. AFFIDAVIT OF COUNTERCOMPLAINT
3. TABLE OF AUTHORITI4S: POLICE REPTORTS ARE IIEARSAY
4. TABLE OF AUTIIOBITIES: LAW OF VOIDS IN TEXAS
by placing one true and correct copy of said document(s) via Register Mail, Retum Receipt to
the following:
Kevin M. Schoch
3619 Hawthome Trl.
Rockwall, TX75032
*Notice to Principal is Notice to Agent;
Notice to Agent is Notice to Principal.*
Tom Wibert, Chief of Police,
Principal to & Respondeat
Superior for, NBPD Defendants
1488 South Seguin Avenue
New Braunfels, TX 78130
Abigail Lane Whitaker
Comal County Courthouse Annex
150 N. Seguin Ave., Ste. 307
Executed on this2jJ day of fVlarc[ of 2015.
z----
Jason Childress
9141 Gristmill Ct.
Fort Worth, Texas
PageT of7
APPENDIX
TAB K
AFFIDAVIT OF COUNTERCOMPLAINT
COUNTY COURT
AT LAW #2
COMAL COUNTY TEXAS
Jason Truman Childress, §
Plaintiff, §
§ Cause No. 2014CR1548
v. §
§
KEVIN M. SCHOCH, a.k.a., KEVIN § AFFIDAVIT OF
SHOCK § COUNTERCOMPLAINT
Defendant, §
and §
§
JAMES L. BELL, a.k.a, James L. Bell, §
§
Defendant, §
and §
§
JOSEPH R. ROBLES, a.k.a, Joseph R. §
Robles, §
Defendant, §
and §
§
§
JOHN M. MAHONEY, a.k.a, John M. §
Mahoney, §
Defendant, §
and §
§
BRIAN W. TURNER, a.k.a, Brian W. §
Turner, §
§
Defendant,
§
and
§
§
HECTOR G. PARRA, JR., a.k.a, Hector G.
§
Parra, Jr.,
§
Defendant, §
§
§
Page 1 of 89
AFFIDAVIT OF COUNTERCOMPLAINT
GARRISON D. HAYS, a.k.a, Garrison §
D. Hays §
§
Defendant,
§
and §
CHRISTOPHER M. SCOTT, a.k.a, §
Christopher M. Scott, §
§
Defendant, §
and §
§
Jane Does #1 - #15 §
As yet to be discovered; §
§
Defendant,
§
and §
John Does #1 - #15 §
§
As yet to be discovered; §
Defendant, §
ADMINISTRATIVE NOTICE
*63C Am. Jur. 2d., Public Officers and Employees, §247* “As expressed
otherwise, the powers delegated to a public officer are held in trust for the people
and are to be exercised in behalf of the government or of all citizens who may
need the intervention of the officer. [1]Furthermore, the view has been expressed
that all public officers, within whatever branch and whatever level of government,
and whatever be their private vocations, are trustees of the people, and
accordingly labor under every disability and prohibition imposed by law upon
trustees relative to the making of personal financial gain from a discharge of their
trusts. [2]That is, a public officer occupies a fiduciary relationship to the political
entity on whose behalf he or she serves. [3]and owes a fiduciary duty to the
public. [4]It has been said that the fiduciary responsibilities of a public officer
cannot be less than those of a private individual. [5]Furthermore, it has been
stated that any enterprise undertaken by the public official who tends to weaken
public confidence and undermine the sense of security for individual rights is
against public policy. Fraud in its elementary common law sense of deceit –and
this is one of the meanings that fraud bears [483 U.S. 372] in the statute (See,
United States v. Dial, 757 F.2d 163, 168 (7th Cir1985)), includes the deliberate
Page 2 of 89
AFFIDAVIT OF COUNTERCOMPLAINT
concealment of material information in a setting of fiduciary obligation. A public
official is a fiduciary toward the public, including, in the case of a judge, the
litigants who appear before him and if he deliberately conceals material
information from them, he is guilty of fraud. McNally v United States, 483 U.S.
350 (1987).
COMES NOW, Plaintiff, Jason Truman Childress, and hereby states the
following:
I. PRELIMINARY STATEMENT
I, Jason Truman Childress, hereafter “Childress,” am a living man of lawful age who is
competent to testify and state that I have first hand personal knowledge of the following facts:
II. PARTIES
1. All statements and allegations made supra, and in Childress's Affidavit for
Countercomplaint are herein incorporated in their entirety by reference.
2. Childress, at all times relevant herein, lived on Texas at 567 Avenue A., New Braunfels,
Texas. Childress is now living on Texas at 9141 Girstmill Ct., Fort Worth, Texas. Childress has
lived on Texas for 34 years.
3. Defendant, KEVIN M. SCHOCH, a.k.a., KEVIN SHOCK, hereafter, Schoch, at all times
relevant herein, is an ex-Dallas County Deputy Constable, fired in 2011 for committing the
offense Driving While Intoxicated, and is employed and, or contracted by CMMM
MANAGEMENT INC, a.k.a., d.b.a., DELTA BAIL BONDS. Schoch is also currently employed,
and,or contracted with, or by, E.J.R. AGENCY INC.; MJB GROUP; A CONSULTING,
SECURITY, & INVESTITGATIONS, LLC; OFF DUTY SERVICES, INC.; STRIKE FORCE
SECURITY; TACTICAL SYSTEMS NETWORK, LLC. Schoch's residential address is
presently unknown, however, it is believed to be at, and at which Service will be made, 3619
Page 3 of 89
AFFIDAVIT OF COUNTERCOMPLAINT
Hawthorne Trl., Rockwall, Texas 75032 and Schoch is being sued in his individual capacity and
official capacity.
4. Defendants, JAMES L. BELL, JOSPEH R. ROBLES, JOHN M. MAHONEY, BRIAN W.
TURNER, HECTOR G. PARRA, J.R., GARRISON D. HAYS, and CHRISTOPHER M. SCOTT,
hereafter, referred to as Bell, Robles, Mahoney, Turner, Parra, Hays, and Scott, and referred to
collectively as NBPD Defendants, at all times relevant herein, are Individual Persons employed
and,or contracted with the NEW BRAUNFELS POLICE DEPARTMENT, a private security
agency, subsidiary of NEW BRAUNFELS, CITY OF. NBPD Defendants work at 1488 South
Seguin Ave, New Braunfels, Comal County, Texas 78130 and are being sued in their individual
capacity and official capacity.
5. Defendants, Jane Doe #1 – #15, at all times relevant to this Complaint are employees,
agents, or private contractors of the NEW BRAUNFELS POLICE DEPARTMENT, or the
Municipal Corporation NEW BRAUNFELS, CITY OF, or are employees, agents, or private
contractors of the agency COMAL, COUNTY OF, or are employees, agents, or private
contractors of the corporation STATE OF, TEXAS. Jane Does 1- 10, will be further identified as
information becomes available. Jane Doe 1 – 10 is being sued in her individual and official
capacity.
6. Defendants, John Doe #1 – #15, at all times relevant to this Complaint are employees,
agents, or private contractors of the NEW BRAUNFELS POLICE DEPARTMENT, or the
Municipal Corporation NEW BRAUNFELS, CITY OF, or are employees, agents, or private
contractors of the agency COMAL, COUNTY OF, or are employees, agents, or private
Page 4 of 89
AFFIDAVIT OF COUNTERCOMPLAINT
contractors of the corporation STATE OF, TEXAS. John Does 1- 10, will be further identified as
information becomes available. John Doe 1 – 10 is being sued in his individual and official
capacity.
III. RESPONSE TO ALLEGATIONS
7. All statements and allegations made supra, and in Childress's Affidavit for
Countercomplaint are herein incorporated in their entirety by reference.
8. Childress denies any and all allegations made against him by Defendants and further
denies that this court has Personal, Political, or Subject-Matter Jurisdiction to hear matters in the
above referenced Cause, or to issue any Process, warrants or otherwise, or render any judgment
against Childress, in the above referenced Cause.
IV. COURT LACKS SUBJECT MATTER AND PERSONAL JURISDICTION
9. All statements and allegations made supra, and in Childress's Affidavit for
Countercomplaint are herein incorporated in their entirety by reference.
10. This court is, and has been since the onset, without subject matter and personal
jurisdiction and "There is no discretion to ignore that lack of jurisdiction." Joyce v. US, 474 F2d
215.
"a void judgment, order or decree may be attacked at any time or in any court,
either directly or collaterally.” Evans v. Corporate Services, 207 Ill.App.3d 297,
565 N.E.2d 724 (2nd Dist. 1990)
“A judgment or order is void where it is entered by a court which lacks
jurisdiction over the parties or the subject matter, or lacks inherent power to enter
the particular order or judgment, or where the order is procured by fraud...” (Id.)
"If the initial judgment was one which the trial court had no power to enter, that
judgment is void and may be attacked at any time in the same or any other court,
Page 5 of 89
AFFIDAVIT OF COUNTERCOMPLAINT
by the parties or by any other person who is affected thereby." Oak Park Nat.
Bank v. Peoples Gas Light & Coke Col, 46 Ill.App.2d 385, 197 N.E.2d 73, 77 (1st
Dist. 1964)
"A void judgment may be attacked at any time, either directly or collaterally." In
re Marriage of Macino, 236 Ill.App.3d 886 (2nd Dist. 1992)
"A void judgment is one entered by a court without jurisdiction of the parties or
the subject matter or that lacks "the inherent power to make or enter the particular
order involved... A void judgment may be attacked at any time, either directly or
collaterally” People v. Wade, 116 Ill.2d 1, 506 N.E.2d 954 (1987)
"Courts are constituted by authority and they can not go beyond the power
delegated to them. If they act beyond that authority, and certainly in contravention
of it, their judgments and orders are regarded as nullities. They are 354*354 not
voidable, but simply void, and this even prior to reversal.” Vallely v. Northern
Fire & Marine Ins. Co., 254 U.S. 348, 41 S.Ct. 116 (1920)
“[a] court ha[s] no jurisdiction to proceed if the judgment it rendered was void for
the want of the due process of law required by the Fourteenth Amendment. If the
defendant had no such actual, legal notice [the] court was without jurisdiction;
[judgment] was void as wanting in due process of law.” Old Wayne Mut. L.
Assoc. v. McDonough, 204 U.S. 8, 27 S.Ct. 236 (1907)
“...[it is a] well-established rule that a void judgment may be attacked directly or
collaterally in any court at any time so long as the party is properly before the
court. That rule allows courts to protect their integrity, to guard against fraud, and
to prevent or correct the entry of judgments made, in fact, without authority.”
People ex rel. Brzica v. Village of Lake Barrington, 644 N.E.2d 66 (Ill.App. 2
Dist. 1994).
11. Jurisdiction is a prerequisite for a court to have official authority and power to decide
matters in cases, issue subpoenas, summons, warrants, orders and judgments, etc.. To decide a
case, a court must have a combination of subject (subjectam) and either personal (personam) or
territorial (locum) jurisdiction.
“A judgment rendered by a court without personal jurisdiction over the defendant
is void. It is a nullity. [A judgment shown to be void for lack of personal service
on the defendant is a nullity.]” Sramek v. Sramek, 17 Kan. App. 2d 573, 576-77,
Page 6 of 89
AFFIDAVIT OF COUNTERCOMPLAINT
840 P.2d 553 (1992), rev. denied 252 Kan. 1093 (1993).
"A universal principle as old as the law is that a proceedings of a court without
jurisdiction are a nullity and its judgment therein without effect either on person
or property." Norwood v. Renfield, 34 C 329; Ex parte Giambonini, 49 P. 732.
"Jurisdiction is fundamental and a judgment rendered by a court that does not
have jurisdiction to hear is void ab initio." In Re Application of Wyatt, 300 P. 132;
Re Cavitt, 118 P2d 846.
"Thus, where a judicial tribunal has no jurisdiction of the subject matter on which
it assumes to act, its proceedings are absolutely void in the fullest sense of the
term." Dillon v. Dillon, 187 P 27.
12. Childress is now challenging this court's jurisdiction. (see, Joyce v. US, supra).
“The [state[ trial court, by reason of [defendant's] failure to exhaust [their]
administrative remedies, acquired no jurisdiction over the [their] claim. When it
clearly appears that the court lacks jurisdiction, the court ha[d] no authority to
reach the merits... the action should [have] be[en] dismissed for want of
jurisdiction." Melo v. US, 505 F2d 1026.
"Court must prove on the record, all jurisdiction facts related to the jurisdiction
asserted." Latana v. Hopper, 102 F. 2d 188; Chicago v. New York, 37 F Supp. 150.
"Once challenged, jurisdiction cannot be assumed, it must be proved to exist."
Stuck v. Medical Examiners, 94 Ca 2d 751. 211 P2d 389.
"The burden shifts to the court to prove jurisdiction." Rosemond v. Lambert, 469
F2d 416.
"A court has no jurisdiction to determine its own jurisdiction, for a basic issue in
any case before a tribunal is its power to act, and a court must have the authority
to decide that question in the first instance." Rescue Army v. Municipal Court of
Los Angeles, 171 P2d 8; 331 US 549, 91 L. ed. 1666, 67 S.Ct. 1409.
13. This court is, and has been since the onset, without jurisdiction as a result of actions by
the Defendants, and the magistrate.
A. NO REASON TO FEAR FROM CHILDRESS
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14. All statements and allegations made supra, and in Childress's Affidavit for
Countercomplaint are herein incorporated in their entirety by reference.
15. Childress, at the time of arrest, gave neither Defendant Schoch, nor NBPD Defendants
any reason to fear for their safety from him. Childress made no attempts to escape or indicated
verbally or physically he would attempt to escape. A search, in absence of a Fourth (4th)
Amendment warrant, of Childress was made subsequent to arrest where no weapons were found;
Childress's hands and ankles were cuffed with no effort to resist; Childress did not offer any
verbal threat of physical resistance or retaliation. When directed to the police car, Childress
complied without physical resistance.
“But a constable cannot justify handcuffing a prisoner unless he has attempted to
escape, or unless it be necessary in order to prevent his doing so.” 51 L.R.A. 216.
“The handcuffing was utterly unlawful.” Osborn v. Veitch, Foster & Fin Eng Rep
317 (1858).
B. NO INTERVENING CIRCUMSTANCES NECESSITATING DELAY
16. All statements and allegations made supra, and in Childress's Affidavit for
Countercomplaint are herein incorporated in their entirety by reference.
17. There was no flood, storm, riot, or any other intervening circumstance to necessitate
NBPD Defendant's immediate attention, which would justify a delay in bringing Childress before
a magistrate. Childress did not observe NBPD Defendants, through the use of police radio or cell
phone, make any attempt to locate a magistrate for the purpose of securing jurisdiction to
continue to hold Childress.
“In endeavoring to take the arrested person before the magistrate, the officer must
expend all the effort that a highly cautious person would employ in the same
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circumstances.” [FN85] Robinson v. Lovell, 238 S.W.2d 294 (Tex. Civ. App.
Galveston 1951), writ refused n.r.e.
18. NBPD Defendants should have exercised caution in this regard, as failure to do so could
lead to personal criminal and civil liability, and has led to the latter.
13 Am Jru Proof of Facts 3d, 21
“Without having been directly authorized, tacitly encouraged, or even
inadequately trained, police officers, like other public employees, may fall into
patterns of unconstitutional conduct. This can result from a variety of factors not
sufficiently traceable in origin to any fault of “municipal policy” in the Monell
sense (Monell v Dept. of Social Services, (1978) 436 US 658, and Soell v
McDaniel, (1987 CA4 NC) 824 F2d 1380). If these unconstitutional practices
become sufficiently widespread, however, they may assume the quality of
“custom or usage” which has the force of law…”
19. If such a thing were to happen, officers might fail to exercise the necessary caution of
learning the law for themselves and, thereby, be influenced to follow flawed policy. Such is the
case in regard to the actions of NBPD Defendants on September 4, 2014.
“To detain the person arrested in custody for any purpose other than that of taking
him before a magistrate is illegal.” Kominsky v. Durand, 12 Atl. 2D 654 (1940).
“But the power of detaining the person so arrested, or restraining him of his
liberty, in such a case is not a matter within the discretion of the officer making
the arrest. He cannot legally hold the person arrested in custody for a longer
period of time than is reasonably necessary under all of the circumstances of the
case, to obtain a proper warrant or order for his further detention from some
tribunal or officer authorized under the law to issue such a warrant or order. If the
person arrested is detained or held by the officer for a longer period of time than
is required, under the circumstances without such warrant authority, he will have a
cause of action for false imprisonment against the officer and all others by whom
he has been unlawfully detained or held.” Harness v. Steele, 159 Ind. 286, 64 N.
E. 875.
“Any undue delay is unlawful and wrongful, and renders the officer himself and
all persons aiding and abetting therein wrongdoers from the beginning.” Ulvestad
v. Dolphin, 278 Pac. 684 (1929).
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20. The law is not lacking in this matter. The requirement Childress is speaking of has been
standard practice since before the Magna Carta. It can hardly be construed that NBPD
Defendants, with the power to arrest a citizen, can be ignorant of this basic principal of law.
21. NBPD Defendants did not make any effort to locate a magistrate, but rather, acted in
furtherance of standing policy which directs officers to secret persons arrested, with or without a
warrant, from the nearest magistrate and take them directly to jail.
C. DUTY TO TAKE BEFORE MAGISTRATE WITHOUT UNNECESSARY DELAY
22. All statements and allegations made supra, and in Childress's Affidavit for
Countercomplaint are herein incorporated in their entirety by reference.
23. Art. 14.06 Tex.C.Crim.Pro., directs arresting officers to take, or have taken, the arrested,
with or without a warrant to the nearest magistrate.
ART. 14.06.MUST TAKE OFFENDER BEFORE MAGISTRATE
Except as provided by Subsection (b), in each case enumerated in this Code, the
person making the arrest or the person having custody of the person arrested shall
take the person arrested or have him taken without unnecessary delay, but not
later than 48 hours after the person is arrested, before the magistrate who may
have ordered the arrest, before some magistrate of the county where the arrest was
made without an order, or, if necessary to provide more expeditiously to the
person arrested the warnings described by Article 15.17 of this Code, before a
magistrate in a county bordering the county in which the arrest was made. The
magistrate shall immediately perform the duties described in Article 15.17 of this
Code.
24. Without considering the lawfulness of the warrantless arrest, for the purpose and
demonstration of jurisdiction, Childress will consider and address the actions subsequent to
arrest. The immediate issue addresses the duty of an arresting officer to take the accused before a
magistrate to secure jurisdiction such that the State may rightfully continue to restrict the accused
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at liberty.
“[28] Maximum protection of individual rights could be assured by requiring a
magistrate's review of the factual justification prior to any arrest, but such a
requirement would constitute an intolerable handicap for legitimate law
enforcement. Thus, while the Court has expressed a preference for the use of
arrest warrants when feasible, Beck v. Ohio, at 96; Wong Sun v. United States,
371 U.S. 471, 479-482 (1963), it has never invalidated an arrest supported by
probable cause solely because the officers failed to secure a warrant. See, Ker v.
California, 374 U.S. 23 (1963); Draper v. United States, 358 U.S. 307 (1959);
Trupiano v. United States, 334 U.S. 699, 705 (1948).
[29] Under this practical compromise, a policeman's on-the-scene assessment of
probable cause provides legal justification for arresting a person suspected of
crime, and for a brief period of detention to take the administrative steps incident
to arrest. Once the suspect is in custody, however, the reasons that justify
dispensing with the magistrate's neutral judgment evaporate. There no longer is
any danger that the suspect will escape or commit further crimes while the police
submit their evidence to a magistrate. And, while the State's reasons for taking
summary action subside, the suspect's need for a neutral determination of
probable cause increases significantly. The consequences of prolonged detention
may be more serious than the interference occasioned by arrest. Pretrial
confinement may imperil the suspect's job, interrupt his source of income, and
impair his family relationships. See R. Goldfarb, Ransom 32-91 (1965); L. Katz,
Justice Is the Crime 51-62 (1972. Even pretrial release may be accompanied by
burdensome conditions that effect a significant restraint of liberty. See, e. g., 18 U.
S. C. 3146 (a)(2)(5). When the stakes are this high, the detached judgment of a
neutral magistrate is essential if the Fourth Amendment is to furnish meaningful
protection from unfounded interference with liberty. Accordingly, we hold that the
Fourth Amendment requires a judicial determination of probable cause as a
prerequisite to extended restraint of liberty following arrest.” Gerstein V. Pugh Et
Al, 95 S. Ct. 854, 420 U.S. 103, 43 L. Ed. 2D 54, 1975. SCT.40602.
25. NBPD Defendants failed to take, or to have Childress taken, directly to and before the
nearest magistrate. While certain delays can be expected in certain circumstances, simple failure
to seek the authority envisioned by Gerstien v. Pugh above, may not be construed as a proximate
cause of reasonable delay. The seminal case on this falls under Texas State Law, Heath v. Boyd,
141 Tex. 569; 175 S.W.2d 214; 1943 Tex. LEXIS 370.
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“Moreover, if Heath's arrest had been authorized by the statutes, his subsequent
detention as pleaded proved would make a case of false imprisonment against
Boyd. The undisputed facts are that after his arrest Heath rode with the sheriff to
the former's car, which he then entered and drove several miles to the courthouse,
followed by Boyd. There he was detained in Boyd's office from one to three
hours, while Boyd was seeking advice by telephone as to what to do, in the face
of a plain statutory command as to [***13] what must be done in all cases of
arrest without warrant. Art. 217, C.C.P., 1925, provides, "I each case enumerated
in this chapter, the person making the arrest shall immediately take the person
arrested * * before the nearest magistrate where the arrest was made without an
order." Substantially the same requirement appears in Art. 325, C.C.P., 1925, and
Art. 487, P.C., 1925. Presumably, there was a magistrate in Mertzon, the county
seat. Yet Boyd offers no reason why he did not take Heath before that official.
Neither in his pleadings nor in his testimony does he suggest that a magistrate was
not reasonably available, although the arrest and detention all occurred between 8
o'clock in the morning and noon. If he had taken Heath to that official, he could
have gotten the information and assistance he was seeking by telephone. He was
under no obligation to seek advice or aid from Johnson. He was under a positive
duty immediately to seek a magistrate. That such failure, unexcused, makes a case
of false imprisonment, as a matter of law, is held by all the authorities. Newby v.
Gunn et al, 74 Texas, 455, 12 S.W. 67; McBeath v. Campbell, 12 S.W. (2d) 118;
Alamo Downs, Inc., et [***14] al v. Briggs (Civ. App.), 106 S.W. (2d) 733 (er.
dism.); Box v. Fluitt (Civ. App.), 47 S.W. (2d) 1107; Maddox v. Hudgeons (Civ.
App.), 72 S.W. 414 (er. ref.); [**218] Karner et al v. Stump (Civ. App.), 34 S.W.
656; Petty v. Morganet al (Civ. App.), 116 S.W. 141; Bishop v. Lucy et al (Civ.
App.) 50 S.W. 1029; 35 C.J.S., p. 546, sec. 31.” Heath v. Boyd, 141 Tex. 569;
175 S.W.2d 214; 1943 Tex. LEXIS 370.
26. NBPD Defendants made no due diligent effort to locate any magistrate.
“Although the failure to take the plaintiff before a magistrate would have been
excused if good grounds had existed for the belief that a magistrate was not
available, such was not the case since the officers made no attempt to determine
whether the magistrate was or would make himself available.” Roberts v Bohac,
574 F.2d 1232.
27. Irrespective of any other states, Texas has specific legislation concerning this requirement
to take the accused before a magistrate. Not only must the arresting officer exhaust the available
magistrates in the county, the consideration of the availability of a magistrate must be extended
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to include every surrounding county (See, Tex.Crim.Pro., Article 14.06, supra).
The record offers, as the government's only justification, evidence that the
magistrate, who issued the warrants, advised of his unavailability after the early
evening of Friday, September 8, 1989. There are three other magistrates in the
District. The record is bereft of any evidence as to their availability. Likewise, the
record is bereft of any evidence as to the availability of any of the district Judges.
N5 Absent evidence of other than the unavailability of the duty magistrate (the
propriety of which is not here questioned), there is no basis to find that the delay
for the entire period from [*20] the arrest to presentment was necessary. To be
sure, it was a weekend. The court was closed. But those facts do not entitle the
government to presume the absence of an obligation to try to arrange the
appearance of an arrestee before one of the other possible judicial officers. The
law remains a force in life even outside usual business hours and all judicial
officers have the obligation to respond to the needs of parties as they are
mandated by the law. Defendant to their reasonable non-judicial activities, all
judicial officers stand ready to fulfill that obligation. Here, the government has
not shown the unavailability of all the possible judicial officers. The obligation of
complying with the law lies with the government, which thus has the burden of
proving that an arrestee was brought before a judicial officer without unnecessary
delay. Its proof of the unavailability of one judicial officer does not prove that the
delay to the next regular business hours, some sixty to sixty-five hours later, did
not constitute unnecessary delay if it does not exhaust the possibility of an
appearance before one of the other judicial officers in the district. See United
States v. Colon, 835 [*21] F.2d 27, 30-31 (2d Cir. 1987). United States v. Morgan,
et al. 1990 U.S. Dist. LEXIS 6206.
28. NBPD Defendants, acting in accordance with established police policy, took Childress
directly to jail, having made no effort to locate a magistrate for the purposes stipulated by Art.
14.06 and the federal requirement articulated by Gerstien v. Pugh, supra.
“The power to arrest does not confer upon the arresting officer the power to detain
a prisoner for other purposes.” Geldon v. Finnegan, 252 N.W. 372 (1934).
“The taking of plaintiff's picture before conviction was an illegal act.” Hawkins v.
Kuhne, 137 NY Supp 1090, 153 App Div 216 (1912).
“Compulsory fingerprinting before conviction is an unlawful encroachment...
[and] involves prohibited compulsory self-incrimination.” People v. Helvern, 215
N.Y. Supp 417 (1926).
Page 13 of 89
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D. NO DUE DILIGENT EFFORT TO LOCATE MAGISTRATE
29. All statements and allegations made supra, and in Childress's Affidavit for
Countercomplaint are herein incorporated in their entirety by reference.
30. For the purpose of argument, even if the arrest had been proper and lawful, Defendant
Schoch and NBPD Defendants became trespassers ab inito by violating laws relating to their
occupations and office subsequent to arrest. Defendant Schoch, in absence of a warrant, entered
the home Childress was within without consent from Childress or the owner of the home,
coerced Childress therefrom, and assaulted him. Defendant Schoch became a criminal trespasser
on the rights of Childress by violating state laws (See, Tex. Occupations Code, Sec. 1702.3867.
EXECUTION OF CAPIAS OR ARREST WARRANT; OFFENSE; Tex.Pen.C., Sec. 30.05.
CRIMINAL TRESPASS, Sec. 20.02. UNLAWFUL RESTRAINT, and Sec. 22.02.
AGGRAVATED ASSAULT.) NBPD Defendants, after securing Childress in custody, made no
due diligent effort to locate a magistrate. After securing Childress such that there was no personal
safety threat to NBPD Defendants from Childress and no threat of escape, any authority of
NBPD Defendants, to continue to hold Childress evaporated (See, Gerstien v. Pugh, supra) and
NBPD Defendants had a duty to make a due diligent effort to locate a magistrate in the county in
which Childress was arrested, failing that, to make an effort to locate a magistrate within an
adjoining county for the purpose of securing authority to continue to hold Childress in the form
of a warrant issued by an examining magistrate under Art. 16.17 Tex.Crim.Pro.. Having made no
such effort, and being without any warrant, NBPD Defendants became criminal trespassers on
the rights of Childress, and therefore, violated a law relating to their office (See, Tex.Pen.Code,
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Sec. 39.03. OFFICIAL OPPRESSION). Even if the original arrest were proper, Defendant
Schoch and NBPD Defendants became trespassers ab inito.
“Under the doctrine of trespass ab inito, where a party exceeds an authority given
by law, the party loses the benefit of the justification and is considered a
trespasser ab inito, although to a certain extent the party followed the authority
given. The law will then operate retrospectively to defeat all acts done under the
color of lawful authority. American Mortg. Corp. v. Wyman 41 S.W.2d 270 (Tex.
Civ. App. Austin 1931). Thus, a person who enters on real property lawfully
pursuant to a conditional or restricted consent and remains after his or her right to
possession terminates and demand is made for his or her removal becomes a
trespasser from the beginning, and the law will then operate retrospectively to
defeat all acts done by him under color of lawful authority. Williams v. Garnett,
608 S.W.2d 794 (Tex. Civ. App. Waco 1980).
“The rule applies to the acts of sheriffs and other officers, as well as to the
conduct of private individuals.” American Mortg. Corp. v. Wyman, 41 S.W.2d 270
(Tex. Civ. App. Austin 1931).
31. As there is no false imprisonment statute in Texas, the appropriate statute is titled
Kidnapping (See, Tex.Pen.Code, Section 20.03). In as much as the act of Kidnapping was
committed while the Defendant Schoch and NBPD Defendants were displaying deadly weapons,
Defendants Schoch's and NBPD Defendant's acts were aggravated. Further, in as much as
Defendant Schoch and NBPD Defendants, the perpetrators of the act of Kidnapping, were
displaying deadly weapons at the time, the act must be considered an act in violation of Sec.
20.04 Tex.Pen.Code, titled Aggravated Kidnapping.
"It will be an evil day for American Liberty if the theory of a government outside
supreme law finds lodgement in our constitutional jurisprudence. No higher duty
rests upon this Court than to exert its full authority to prevent all violations of the
principles of the Constitution. Downs v. Bidwell, 182 U.S. 244 (1901).
"No man or woman in this country is so high that he is above the law. No officer
of the law may set that law at defiance with impunity. All the officers of the
government from the highest to the lowest, are creatures of the law, and are bound
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to obey it." Butz v. Economou, 98 S. Ct. 2894 (1978); United States v. Lee, 106
U.S. at 220, 1 S. Ct. at 261 (1882).
"Decency, security and liberty alike demand that government officials shall be
subjected to the same rules of conduct that are commands to the citizen. In a
government of laws, existence of the government will be imperiled if it fails to
observe the law scrupulously. Our Government is the potent, the omnipresent
teacher. For good or for ill, it teaches the whole people by its example. Crime is
contagious. If the Government becomes a lawbreaker, it breeds contempt for law;
it invites every man to become a law unto himself; it invites anarchy. To declare
that, in the administration of the criminal law, the end justifies the means -- to
declare that the Government may commit crimes in order to secure the conviction
of a private criminal -- would bring terrible retribution" Olmstead v. United States,
277 U.S. 438 (1928).
"The innocent individual who is harmed by an abuse of governmental authority is
assured that he will be compensated for his injury." Owen v. City of
Independence, 445 U.S. 622 (1980).
"I do not understand the government to contend that it is any less bound by the
obligation than a private individual would be..." "It is not the function of our
government to keep the citizen from falling into error; it is the function of the
citizen to keep the government from falling into error." Perry v. United States, 204
U.S. 330, 358.
"No man in this country is so high that he is above the law. No officer of the law
may set that law at defiance, with impunity. All the officers of the government,
from the highest to the lowest, are creatures of the law are bound to obey it." U.S.
v. Lee, 106 U.S. 196, 220 1 S. Ct. 240, 261, 27 L. Ed 171 (1882).
“Uncontrolled search and seizure is one of the first and most effective weapons in
the arsenal of every arbitrary government." Brenninger v. U.S., 338 US 160.
T”he Fourth Amendment proscribes all unreasonable searches and seizures, and it
is a cardinal principle that "searches conducted outside the judicial process,
without prior approval by a judge or magistrate, are per se unreasonable under the
Fourth Amendment-subject only to a few specifically established and well-
delineated exceptions." Katz v. United States, 389 US 347, 357.
“The point of the Fourth Amendment, which often is not grasped by zealous
officers, is not that it denies law enforcement the support of the usual inferences
which reasonable men draw from evidence. Its protection consists in requiring
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that those inferences be drawn by a neutral and detached magistrate instead of
being judged by the officer engaged in the often competitive enterprise of
ferreting out crime." Terry v. Ohio, 392 US 1, 34 (1968).
“It must be recognized that whenever a police officer accosts an individual and
restrains his freedom to walk away, he has 'seized' that person." Id.
“Where property or evidence has been obtained through unconstitutional search
and seizure, failure to return the same and to suppress the evidence learned
thereby constitutes reversible error. - Boyd v. United States, 116 US 616; Weeks v.
United States, 232 US 383; Silverthorne Lumber Co. v. United States, 251 US
385; Gouled v. United States, 255 US 298; Amos v. United States, 255 US 313.
When officers detained defendant for the purpose of requiring him to identify
himself, they performed a "seizure" of his person subject to the requirements of
the Fourth Amendment." Brown v. Texas, 443 US at 47.
“The usual rule is that a police officer may arrest without warrant one believed by
the officer upon reasonable cause to have been guilty of a felony, and that he may
only arrest without a warrant one guilty of a misdemeanor if committed in his
presence. Kurtz v. Moffitt, 115 US 487; Elk v. U.S., 117 US 529. The rule is
sometimes expressed as follows:
"In cases of misdemeanor, a peace officer like a private person has
at common law no power of arresting without a warrant except
when a breach of the peace has been committed in his presence or
there is reasonable ground for supposing that a breach of the peace
is about to be committed or renewed in his presence." Halsbury's
Laws of England, Vol. 9 part III, 612. The reason for arrest for
misdemeanors without warrant at common law was promptly to
suppress breaches of the peace, 1 Stephen, History of Criminal
Law, 193..." Carrol v. U.S., 267 US 132, 157.
“It is monstrous that courts should aid or abet the lawbreaking police officer. It is
abiding truth that '[n]othing can destroy a government more quickly than its own
failure to observe its own laws or worse, its disregard of the charter of its own
existence.'" Justice Brennan quoting Mapp v. Ohio, 367 US 643, 659 (1961) in
Harris v. New York, 401 US 222, 232. (1971).
“Constitutional provisions for the security of person and property should be
liberally construed." Boyd v. U.S., 116 US 616 (1886).
“...and it is the duty of the courts to be watchful for the constitutional rights of the
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citizen, and against any stealthy encroachments thereon." Byars v. U.S., 273 US
28 (1927).
"Where rights secured by the Constitution are involved, there can be no 'rule
making' or legislation which would abrogate them." Miranda v. Arizona, 384 U.S.
426, 491; 86 S. Ct. 1603.
E. COURT PROCEEDINGS HELD IN SECRET
32. All statements and allegations made supra, and in Childress's Affidavit for
Countercomplaint are herein incorporated in their entirety by reference.
33. Childress, after being arrested and booked into the jail, was eventually brought before a
magistrate the next morning. At said appearance criminal accusations were read to Childress
wherein he was officially charged with committing criminal acts against the laws of the State of
Texas. Then, Childress was notified of the amount of bail which had been set. At said hearing,
when Childress first observed magistrate, the court was in possession of a file from which the
magistrate read the allegations against Childress. This raises a question: Where, how, and by
what legal mechanism did the court accept into evidence, allegations against Childress outside
the presence of Childress who was under the absolute control of the State at the time?
The Texas Code of Judicial Conduct further provides that, except as authorized by
law, a judge shall not directly or indirectly initiate, [**46] permit, or consider ex
parte or other private communications concerning the merits of a pending or
impending judicial proceeding. TEXAS SUPREME COURT, CODE OF
JUDICIAL CONDUCT, Canon 3A (5). Ex parte communications are "those that
involve fewer than all of the parties who are legally entitled to be present during
the discussion of any matter. They are barred in order to ensure that 'every person
who is legally interested in a proceeding [is given the] full right to be heard
according to law'." JEFFREY M. SHAMAN, ET AL., JUDICIAL CONDUCT
AND ETHICS, § 6.01 at 145 (1990). The principle underlying such prohibition,
as it regards the disposition of criminal matters is quite simple: the disposition of
criminal matters is the public's business and ought to be conducted in public in
open court. See, Tamminen v. State, 644 S.W.2d 209; 217 (Tex.App.--San Antonio
Page 18 of 89
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1982), aff'd in part and rev'd in part, 653 S.W.2d 799 (Tex.Crim.App. 1983); TEX.
CODE CRIM. PROC. ANN. art. 1.24 (Vernon 1977).
Private adjudications fly in the face of our judicial system's abiding commitment
to providing public access to civil and criminal proceedings and records. See,
Gannett Co. v. DePasquale, 443 U.S. 368, 61 L. Ed. 2d 608, 99 S. Ct. 2898
(1979). Our form of government is rooted in a recognition of the importance of
open and public proceedings. Subjecting judicial proceedings to public scrutiny
accomplishes two important goals. First, it provides the public with an
opportunity to exercise its right to monitor and evaluate its judicial system.
Second, and equally important, a judge's knowledge that his or her actions are not
shrouded in secrecy fosters a stronger commitment to strict conscientiousness in
the performance of judicial duties. Our courts have recognized that secret
tribunals exhibit abuses that are absent when the public has access to judicial
proceedings and records. See, Express-News Corp. v. Spears, 766 S.W.2d 885,
890 (Tex.App.--San Antonio 1989, orig. proceeding [leave denied]) Cadena, C.J.
dissenting. The judiciary has no special privilege to suppress or conduct in private
proceedings involving the adjudication of causes before it. [**48] In fact, such
secrecy frustrates the judiciary's responsibility to promote and provide fair and
equal treatment to all parties. Individual Judges are charged with the task of
adjudicating claims in a manner that protects the rights of both parties. A judge's
private [*497] communications with either party undermine the public's right to
evaluate whether justice is being done and removes an important incentive to the
efficient resolution of cases. In Re, John M. Thoma, Judge, County Court At Law
No. 1 Galveston County, Texas, Respondent, 873 S.W.2d 477; 1994 Tex. LEXIS
159.
F. EXAMINING TRIALS REQUIRED BY TEXAS LAW
34. All statements and allegations made supra, and in Childress's Affidavit for
Countercomplaint are herein incorporated in their entirety by reference.
35. In Texas, notwithstanding practices in other states, probable cause is only found and bail
set by a magistrate through an examining trial, the procedures for which are laid down in Ch. 16,
Tex.Crim.Pro.. The chapter has been carefully crafted by the Texas Legislature to install
safeguards so as to insure the rights of the accused are upheld and that the accused is protected
from abuses by the governmental, corporate instruments The People have created to enforce the
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criminal laws. Nothing in Ch. 16, or any other chapter of the Tex.C.Crim.Proc., authorizes
examining trials to be held in secret.
36. The first thing that must happen in the convening of a hearing by a magistrate is that all
parties must be present. In order for the magistrate to be in possession of a file containing details
of a criminal allegation against Childress, the magistrate had to receive that file from somewhere.
So, where and how did the magistrate get the file, and how did the documents in the file get
entered into evidence against Childress if not in a public hearing?
Art. 16.07. SAME RULES OF EVIDENCE AS ON FINAL TRIAL
The same rules of evidence shall apply to and govern a trial before an examining
court that apply to and govern a final trial.
37. Either there are some secret practices and procedures not codified, or the magistrate came
into possession of evidence outside the legal structures put in place to safeguard and to protect
the accused from just the sort of abuse perpetrated in the magistrate court.
G. SPECIFIC RIGHTS DENIED AS DELIBERATE CONTRIVANCE
38. All statements and allegations made supra, and in Childress's Affidavit for
Countercomplaint are herein incorporated in their entirety by reference.
39. At the hearing wherein bail was set, no plea was requested or accepted by the court,
Childress was never given opportunity to be faced with his accuser(s), nor was Childress
afforded opportunity to present exculpatory evidence and Childress was not present at the
hearing where probable cause was determined. Evidence was presented to the court, accepted
into evidence, and a probable cause determination made in secret.
OVERVIEW: Defendant was convicted of aggravated rape by a jury, based on
evidence that included the testimony of the victim and her companion, who were
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held at gunpoint, raped, and beaten by Defendant and other members of a
motorcycle gang. During trial, the prosecutor gave the sentencing judge a "secret"
police intelligence report about the gang, ex parte. Defense counsel was not
allowed to see it. The court affirmed the conviction, finding that the evidence was
overwhelming. Most errors were not preserved, either by failure to object in a
timely manner or by objection on a ground different from that raised on appeal.
The court vacated the sentence because the ex parte tender of the report violated
Defendant's rights to confrontation and due process under U.S. Const. amend. VI
and U.S. Const. amend. VI. The ex parte tender also constituted prosecutorial
misconduct in violation of Tex. Code Crim. Proc. Ann. art. 2.01 and the state
ethics rules, judicial misconduct under the Rules and Code of Judicial Conduct,
and deprived Defendant of a public trial under Tex. Code Crim. Proc. Ann. art.
1.24 (1977). Tamminen v. State, 644 S.W.2d 209; 1982 Tex. App. LEXIS 5561.
40. The above is neither a difficult concept, nor is it an obscure consideration. Evidence
presented ex parte while a party is being physically restrained from appearance, determinations
made in secret, confrontation denied, and opportunity to rebut not availed goes to the heart of our
legal system and directly influences the judicial machinery. No right-minded magistrate, in good
faith, can consider such behavior anything but egregious and the most outrageous abuse.
H. ARTICLE 15.17 AND SHARP PRACTICE TO BYPASS OF DUE COURSE
41. All statements and allegations made supra, and in Childress's Affidavit for
Countercomplaint are herein incorporated in their entirety by reference.
42. Tex.Crim.Pro., Art. 14.06, supra, refers to Art. 15.17 which I have outlined below. The
paragraph outlined below is (a) of Tex.Crim.Pro., Art. 15.17:
Art. 15.17. DUTIES OF ARRESTING OFFICER AND MAGISTRATE
In each case enumerated in this Code, the person making the arrest or the person
having custody of the person arrested shall without unnecessary delay, but not
later than 48 hours after the person is arrested,
(a) take the person arrested or have him taken before some magistrate of the
county where the accused was arrested or, to provide more expeditiously to the
person arrested the warnings described by this article, before a magistrate in any
other county of this state.
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(b) The arrested person may be taken before the magistrate in person or the image
of the arrested person may be presented to the magistrate by means of an
electronic broadcast system.
(c) The magistrate shall inform in clear language the person arrested, either in
person or through the electronic broadcast system, of the accusation against him
and of any affidavit filed therewith, of his right to retain counsel, of his right to
remain silent, of his right to have an attorney present during any interview with
peace officers or attorneys representing the state, of his right to terminate the
interview at any time, and of his right to have an examining trial.
(d) The magistrate shall also inform the person arrested of the person's right to
request the appointment of counsel if the person cannot afford counsel.
(e) The magistrate shall inform the person arrested of the procedures for
requesting appointment of counsel. If the person does not speak and understand
the English language or is deaf, the magistrate shall inform the person in a manner
consistent with Articles 38.30 and 38.31, as appropriate.
(f) The magistrate shall ensure that reasonable assistance in completing the
necessary forms for requesting appointment of counsel is provided to the person
at the same time counsel and if the magistrate is authorized under Article 26.04 to
appoint counsel for indigent Defendants in the county, the magistrate shall appoint
counsel in accordance with Article 1.051.
(g) If the magistrate is not authorized to appoint counsel, the magistrate shall
without unnecessary delay, but not later than 24 hours after the person arrested
requests appointment of counsel, transmit, or cause to be transmitted to the court
or to the courts' designee authorized under Article 26.04 to appoint counsel in the
county, the forms requesting the appointment of counsel.
(h) The magistrate shall also inform the person arrested that he is not required to
make a statement and that any statement made by him may be used against him.
(i) The magistrate shall allow the person arrested reasonable time and opportunity
to consult counsel and shall, after determining whether the person is currently on
bail for a separate criminal offense, admit the person arrested to bail if allowed by
law.
(j) A recording of the communication between the arrested person and the
magistrate shall be made. The recording shall be preserved until the earlier of the
following dates:
(1) the date on which the pretrial hearing ends; or
(2) the 91st day after the date on which the recording is made if the person
is charged with a misdemeanor or the 120th day after the date on which the
recording is made if the person is charged with a felony.
(k) The counsel for the Defendant may obtain a copy of the recording on payment
of a reasonable amount to cover costs of reproduction.
(l) For purposes of this subsection, "electronic broadcast system" means a two-
way electronic communication of image and sound between the arrested person
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AFFIDAVIT OF COUNTERCOMPLAINT
and the magistrate and includes secure Internet videoconferencing.
43. Art. 15.17 gives the impression of covering all those things which must be done
subsequent to the arrest of an accused. However, Art. 15.17 is a special statute, intended to apply
to a special and relatively rare circumstance, not to the general procedures subsequent to arrest.
“Article 15.17, V.A.C.C.P., contemplates [**33] that there will be occasions
where no formal charges have been filed when the accused is taken before the
magistrate.” Harris v. State, 457 S.W. 2d 903; 1970 Tex. Crim. App. LEXIS 1304.
44. Please notice Paragraph (i), and the highlighted section where it speaks of setting bail "if
allowed by law."
45. When a someone is arrested on a formal criminal allegation, bail may not be set unless
there is a finding of probable cause. If no probable cause is found in the examining trail under
the provisions of Ch. 16 Tex.Crim.Pro., the magistrate will have no jurisdiction over the accused
and my not set bail, but rather, must release the accused at his/her liberty. If probable cause is
found, a warrant must be issued and bail set.
46. Art. 15.17 supra, for all its confusing language, provides no legal procedure for setting
bail. However, the procedure prescribed for setting bail is well established. Ch. 17 Tex.Crim.Pro.
at Art. 17.05 clearly states the Legislative intent in these matters:
Article 17.05 WHEN BAIL IS TAKEN
A bail bond is entered into either before a magistrate, upon an examination of a
criminal accusation, or before a judge upon an application under habeas corpus;
or is taken from the Defendant by a peace officer if authorized by '‘Article 17.20,
17.21, or 17.22.
47. Childress was not arrested on suspicion; neither was Childress being held as a material
witness. Even if such were the case, before the magistrate could set bail, an examining trial must
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AFFIDAVIT OF COUNTERCOMPLAINT
be held.
48. Childress had been arrested subsequent to a formal criminal allegation, booked and
placed in jail, and then brought before a magistrate. This circumstance is contemplated by Article
2.11 Tex. Crim. Pro.:
Art. 2.11. Examining court
When the magistrate sits for the purpose of inquiring into a criminal accusation
against any person, this is called an examining court.
49. Art. 15.17, supra, may seem long, however, it is an attempt to cover those things that are
normally covered in an examining trial. In one statute the Texas Legislature tried to cover those
things covered in a whole chapter dedicated to examining trials. While I will refrain from
quoting the whole chapter here, it is enough that Ch. 16 Tex.Crim.Pro. titled, “COMMITMENT
OR DISCHARGE OF THE ACCUSED,” is in place.
50. While the magistrate had a duty to read Childress his rights under Art. 15.17, there was
no provision therein, to determine probable cause, which would render lawful the setting of bail.
Absent a finding of probable cause, bail could not be set.
51. Now, back to the question: How did the criminal allegations against Childress get
submitted to the magistrate outside a proper examining trial before which Childress, subsequent
to the immediate restraint on his liberty, had a right to attend?
I. PROBABLE CAUSE DETERMINATION MADE BY INFORMAL METHOD
52. All statements and allegations made supra, and in Childress's Affidavit for
Countercomplaint are herein incorporated in their entirety by reference.
53. The magistrate accepted into evidence al
This text is long and has been trimmed here. Open the source document for the complete record.