Opinion

Childress, Jason

Court
Court of Appeals of Texas
Filed
Aug 3, 2015
Status
Published
Cited by
0 cases
Authority
More cited than 3.1%

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

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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 $.

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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

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'.'q *=Ez-

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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

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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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AFFIDAVIT OF COUNTERCOMPLAINT

(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.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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