Appendix — Fichtner v. Texas
Supreme Court brief2002
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JAY SHELDON FICHTNER,
Petitioner
¥.
THE STATE OF TEXAS
Respondent
On Petition for Writ of Certiorari
To
The Court of Criminal Appeals of Texas,
The Court of Appeals for the Fifth District of Texas, at Dallas
And
The 194 Judicial District Court of Texas
APPENDIX FOR PETITION FOR WRIT OF CERTIORARI
Rae Ann Fichtner, L.L.B, L.L.M.
Associate Adjunct Professor
Texas Woman’s University
15625 Preston Rd., Ste. 1028
Dallas, Texas 76248-4851
Tel.: 972-404-9991
972-239-4222
Fax: 972-404-9994 4
ny?
Attorney for Petitioner
nn aaeeaend
INDEX TO APPENDIX
No.Filed/
Sign Date
11-21-2001
04-05-2001
04-05-2001
09-21-2000
Document Title Page
Refused-Appellant’s Petition
For Discretionary Review,
Texas Court of Criminal ........ 1
Opinion of Court of Appeals, Fifth
District of Texas at Dallas -
Affirmed Judgment of Trial Court
Court of Appeals, Fifth District of
Texas at Dallas, 05-99-01053-CR,
Jay Sheldon Fichtner, Appellant v.
The State of Texas, Appellee ...... 2
Judgment (Trial Court Affirmed)
Court of Appeals, Fifth District of
Texas at Dallas, 05-99-01053-CR,
Jay Sheldon Fichtner, Appellant v.
The State of Texas, Appellee ..... 27
Order - Trial Court Judgment
signed by Hon. Harold Entz is
Void; Hon. Robert Dohoney to sign
anew jaderent.............. 28
3. 03-12-1999 Judgment and Order Placing the
Defendant on Probation -
No. F97-03659-UM, State of Texas v.
Jay Sheldon Fichtner, 194" Judicial
District Court, Dallas County,
Texas, signed by Hon. Harold Entz
With attached Conditions of
ee eee reer ere 31
6. 09-29-2000 Judgment & Order Placing
Defendant on Probation signed by
Hon. Robert Dohoney, with no
ee 38
7 10-12-2000 Order Reinstates this appeal. Court
of Appeals, Fifth District of Texas
at Dallas, 05-99-01053-CR, Jay
Sheldon Fichtner, Appellant v. The
State of Texas, Appellee ......... 40.
8. Original Petition for Review to Texas Court of
Criminal Appeals, Case No. 1129-01 ........ 44
10.
11.
12.
13.
14.
02-07-2000
4-23-2001
9-22-2001
10-30-1997
11-04-1997
11-04-1997
Appellant’s Original Brief, Court of
Appeals, Fifth District of Texas at
Dallas, 05-99-01053-CR, Jay Sheldon
Fichtner, Appellant v. The State of
ere reriT ere 100
Appellant’s Original Motion for
Rehearing En Bank ........... 155
Appellant’s Motion for Rehearing
I SoG kwh Coa sence 172
Defendant's Motion to Set Aside the
Indictment, No. F96-02328-UM,
State of Texas v. Jay Sheldon Fichtner,
194" Judicial District Court, Dallas
ee eee ee eee 173
Motion to Dismiss Indictment
Because of Double Jeopardy and Lack
oo errr eer re 178
Motion to Determine Materiality and
to Quash or Dismiss Indictment, No.
F96-02328-UM, State of Texas v. Jay
Sheldon Fichtner, 194" Judicial
District Court, Dallas County,
15.
16.
17.
18.
19.
12-04-1997
12-04-1997
12-04-1997
12-04-1997
12-05-1997
Objection To Court's Charge to the
Jury (re: “Materiality”)
No. F96-02329-UM, State of Texas v.
Jay Sheldon Fichtner, 194" Judicial
District Court, Dallas County,
. 2 445 5 iweb Phe ess 185
[Handwritten] Objection to specific
portion of Court's Charge to the
Jury (re: weight of the evidence),
No. F96-02329-UM, State of Texas v.
Jay Sheldon Fichtner, 194" Judicial
District Court, Dallas County,
WOME 5 caewicspitwersccasaes 188
Reporter's Record of Charge
Hearing, No. F96-02328-UM, State
of Texas v. Jay Sheldon Fichtner,
194" Judicial District Court, Dallas
COE, TORE ci vc ce veves ces 189
Docket Sheet, entitled Orders of
Court showing Hung Jury - Jury
i eee EET Te Tee 202
Reindictment (sic), No. F97-03659-
KM, State of Texas vs. Jay Sheldon
20.
21.
03-04-1999
03-11-1999
04-12-1999
04-14-1999
Fichtner, 194" Judicial District
Court of Dallas County, Texas 203
[Defendant's] Motion to Dismiss
Indictment as Being Unconstitutional,
No. F97-03659-KM, State of Texas
vs. Jay Sheldon Fichtner, 194"
Judicial District Court of Dallas
COU, TONE dock csvceveus 206
Plea Bargain Agreement;
No. F97-03659-KM, State of Texas
vs. Jay Sheldon Fichtner, 194"
Judicial District Court of Dallas
COG, TOME oon avncscvees 214
Defendant's Motion to Retract Plea
Bargain Agreement 3/11/99, No.
F97-03659-KM, State of Texas vs. Jay
Sheldon Fichtner, 194 Judicial
District Court of Dallas County,
he iaccetteenn eee 217
Defendant's Motion for New Trial,
No. F97-03659-UM, State of Texas v.
Jay Sheldon Fichtner, 194" Judicial
District Court, Dallas County,
WE S600 4555 5530002 222
24.
25.
26.
05-24-1999
10-06-2000
10-06-2000
03-11-1999
[New Trial] DENIED
Defendant's Motion for Judgment,
No. F97-03659-UM, State of Texas v.
Jay Sheldon Fichtner, 194" Judicial
District Court, Dallas County,
po Peer re eee 230
Defendant's Motion to Disqualify
Hon. Robert Dohoney, No. F97-
03659-UM, State of Texas v. Jay
Sheldon Fichtner, 194" Judicial
District Court, Dallas County,
PORE oc haven ceieveiaasepens 234
On docket sheet entitled, Orders of
Court, finalization of trial and
discharge of jury. No. F97-03659-
UM, State of Texas v. Jay Sheldon
Fichtner, 194" Judicial District
Court, Dallas County, Texas
Appendix No 1
[Postmark] Nov 21, 2001
OFFICIAL NOTICE OF COURT OF CRIMINAL
APPEALS OF TEXAS
P.O. BOX 12308, CAPITOL STATION
AUSTIN, TEXAS 78711
COA#: 05-99-01053-CR
RE: Case No. 1129-01
STYLE: FICHTNER, JAY SHELDON
On this day the Appellant's Pro Se Petition for
Discretionary Review has been DENIED.
Troy C. Bennett, Jr., Clerk
JAY S. FICHTNER
14901 QUORUM DR SUITE 740
DALLAS, TX 75240-6793
2
Appendix No. 2
AFFIRMED; (sic) Opinion issued April 5, 2001
In the
Court of Appeals
Fifth District of Texas at Dallas
No. 05-99-01053-CR
JAY SHELDON FICHTNER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 194" Judicial District Court
Dallas County, Texas
Trial Court Cause No. F97-03659-KM
OPINION
Before Justices James, Wright and Bridges
Opinion By Justice James
3
Pursuant to a plea bargain, appellant a family law
attorney, was convicted of misdemeanor perjury. Appellant
received a suspended sentence and a fine of $300 and was
placed oncommunity supervision for one year. Also pursuant
to the plea bargain, appellant surrendered his law license. On
appeal, appellant brings six issues, with multiple sub-issues.
Appellant first argues that notwithstanding his plea bargain
his right of appeal is not restricted. He further contends the
judgment is void or voidable because a recused judge signed
the judgment; there was no order appointing the visiting
judge who presided over appellant's retrial; the trial court
erroneously ruled the State could use certain extraneous
offense evidence in rebuttal; and his plea was involuntary.
Appellant also contends the aggravated perjury statute
pursuant to which he was indicted is unconstitutional under
the federal constitution, his conviction is barred by double
jeopardy, there was no probable cause for the aggravated
perjury indictment, the evidence is insufficient to support his
conviction . and the trial court erred in overruling his motion
for new trial. Additionally, in a post-submission filing,
appellant has raised an additional issue claiming the trial
judge erred in failing to recuse himself after this Court abated
the appeal for the judge who presided over appellant's retrial
to signa final judgment. We resolve appellant's issues against
him and affirm the judgment of the trial court.
The events giving rise to the charges arise out of achild
custody dispute between the children’s paternal grandmother
(and other paternal relatives) and the children’s mother.
4
Appellant represented the mother. The trial court issued a
writ of habeas corpus requiring appellant's client to appear in
court with her children. Appellant's client failed to have her
children in court on the day provided for in the writ.
Thereafter, a hearing was held on the grandmother's request
for a writ of attachment requiring that the children be taken
into custody. Over appellant's objections, the trial court
determined that writ of attachment should issue. Counsel for
the grandmother then presented a proposed form of order to
the trial court and directed the court's attention to alternative
provisions in the proposed order requiring that the children
be delivered to the court or to the custody of the grandmother.
The trial judge directed the grandmother's counsel to provide
a copy of the proposed order to appellant. The judge then
announced he was granting the writ and proceeded to make
certain handwritten changes to the proposed order, all while
appellant was still in the courtroom. Appellant, however, left
the courtroom before obtaining a copy of the signed order
with the handwritten changes. The signed order reflects that
the trial judge chose to have the children taken into custody
and delivered to their grandmother and struck the alternative
provision.
Appellant later filed in this Court a motion for leave to
file a petition for writ of mandamus, claiming the trial court's
order was fatally defective because it contained conflicting
provisions as to where the children were to be taken. Rather
than obtaining a conformed copy of the signed order from the
trial court to attach to his motion as an exhibit, appellant
5
instead used a copy of the proposed order which he “self-
conformed” by filling in the date of the hearing and writing in
the judge’s name on the signature line, preceded by the
notation “/s/.” Appellant also verified his motion stating:
“[T]he exhibits attached to this motion and contained in the
Appendix of Exhibits, which are attached and incorporated in
these proceedings, are true and correct to the best information
and belief of affiant; [and] that the allegations of fact
contained in these proceedings are true and correct.”
Appellant's “motion for leave” was denied. Subsequently,
appellant was indicted for the felony offenses of aggravated
perjury and tampering with physical evidence. Counsel for
the grandmother was listed on each indictment as the
complaining witness. The indictments generally alleged
appellant made a false statement under oath in the motion he
filed with this court and knowingly used a falsified document
in an official proceeding. See Tex. Pen. Code Ann. §§37.02,
37.03, 37.09 (Vernon 1994 & Supp. 2001). Appellant pleaded
not guilty.
Appellant originally was tried for both offenses before
the same jury. This trial resulted in a hung jury, and appellant
was retried. Prior to the retrial, however, the State dismissed
the original aggravated perjury and indictment and re-
indicted appellant for that offense. The new indictment
omitted an allegation that appellant personally appeared
before a notary and changed the term “affidavit” to
“verification” in describing the document which allegedly
6
contained the false statement. The tampering with evidence
indictment remained unaltered.
Also prior to retrial, the presiding judge of the court
who had presided over the first trial determined not to preside
in the second. Instead, the second trial was conducted by a
senior district, the Honorable Robert Dohoney.
During the second trial, the State received a favorable
ruling during its rebuttal case allowing the State to call seven
witnesses. One of the witnesses was an eleven-year-old child,
who was one of the children involved in the underlying
custody dispute. She testified appellant asked her to lie in the
custody dispute by changing her story to deny that her
stepbrother had sexually molested her. She also claimed
appellant offered her twenty dollars if she would testify as he
asked. After the trial court's ruling permitting her testimony
(together with the other six witnesses), appellant agreed to a
plea bargain. In return for the State dropping the tampering
with physical evidence charge and reducing the aggravated
perjury offense to a misdemeanor, appellant agreed to serve
one year probation, pay a $300 fine, and surrender his law
license.
The trial court accepted the plea bargain. Appellant
surrendered his law license and the court rendered judgment
sentencing appellant to one year in jail, suspended and
probated for one year, and a $300 fine. Following judgment,
appellant filed motions for a new trial and to withdraw his
7
plea bargain. Appellant claimed, inter alia, he had newly
discovered evidence regard the veracity of the child witness
who had been proffered by the State. The trial court denied
appellant's motions, and this appeal followed.
In connection with his first issue, appellant initially
argues that notwithstanding (sic) his plea bargain his right of
appeal is not restricted. Specifically, appellant complains he
agreed to only one year probation, while the judgment
imposed a one year jail sentence, which the trial court
suspended. Appellant's argument lacks merit.
If a defendant pleads guilty to a misdemeanor offense
pursuant to a plea bargain, and the punishment assessed does
not exceed the punishment recommended by the prosecutor
and agreed to by the defendant and his attorney, on appeal the
defendant may raise non-jurisdictional defects only if he
raised them before trial, or if he obtained permission of the
trial court to appeal. Taylor v. State, 997 S.W.2d 821, 822 (Tex.
App.-Houston [1* Dist.] 1999, no pet.}.’ In our view, the
1. Both appellant and the State spend considerable time addressing
rule 25.2(b)(3), regarding special notice provisions for an appeal arising
from a plea bargain. See Tex. R. App. P. 25.2(b)(3}. Rule 25.2(b)(3),
however, is applicable only to a plea bargain from a felony. See Tex.
Code Crim. Proc. Ann. Art 1.15 (Vernon Supp. 2001). Hant
pleaded guilty to a misdemeanor, rule 25.2(b)(3) is not applicable here.
Nonetheless, case law involving guilty pleas in misdemeanor cases
operates to restrict the issues on appeal in a similar to Rule25.2(b)(3) but
8
punishment assessed did not exceed appellant's plea bargain,
therefore, the issues in this appeal are properly limited to
those matters raised before trial or as to which the trial court
granted permission to appeal”
First, while appellant is correct that the plea bargain
agreement stated merely that appellant agreed to “one year
community supervision,” without mentioning the term of the
sentence to be probated, the issue was clarified during the plea
‘hearing. “One year on the criminal conviction.” The trial
judge then asked appellant whether that was his
understanding to which appellant responded, “Yes, sir.”
Thereafter, the trial judge pronounced the following sentence
in appellant's presence:
And pursuant to the plea bargain and having
found you guilty of the offense of perjury, the
Court assesses punishment at a fine of three
hundred dollars, jail time in the Dallas County
without the special notice-of-appeal provisions. See Lemmons v. State, 818
S.W.2d 58, 61-63 (Tex.Crim.App 1991); Isam v. State, 582 S.W.2d 441, 442-
44 (Tex.Crim.App. 1979); Taylor v. State, 916 S.W.2d 680, 684-85 (Tex.App.
- Waco 1996, pert. refd) (all three cases address guilty pleas in
misdemeanor offense cases).
a The record reflects that the trial court granted appellant
permission to appeal only those matters that were raised in writing
before the plea.
9
Jail for a period of one year. The imposition of
the jail time is suspended. You're place on
probation for a period of one year under the
usual and customary terms of adult probation.
The parties then discussed several additional aspects of the
plea, including whether probation would be supervised, the
minimum term of appellant's suspension from the practice of
law, and whether there would be any further prosecution. At
no time did appellant voice any objection to the terms of the
sentence pronounced by the court. Appellant specifically
repeated that he desired to forfeit his right to continue with
the jury trial and, when questioned by the judge, appellant's
counsel declined to withdraw the plea.
A term of regular probation in the abstract, without
reference to any sentence, does not exist in the law and is not
a sentence to which appellant could have agreed or the trial
court could have accepted. We believe it clear from the record
that all present at the plea hearing understood the sentence to
be one year, suspended, and probated for one year. This is the
only logical interpretation of the plea bargain agreement.
When regular probation, or community supervision, is
ordered, the defendant's sentence is not imposed, it is
suspended. See In re Beck, 26S.W.3d 553, 555 (Tex. App.-Dallas
2000, orig. proceeding), overruled on other grounds sub nom, Hill
v. Court of Appeals for the Fifth District, 34 S.W.3d 924
(Tex.Crim.App. 2001). Successful service of probation relieves
the defendant from serving his sentence. See Wiltz v. State, 863
10
S.W.2d 463, 465 (Tex.Crim.App. 1993). Therefore, a term of
regular probation necessarily implies thata sentence must first
be pronounced, then suspended, to allow the defendant the
opportunity to complete the term of probation in lieu of his
sentence. -
Furthermore, even if the parties did not agree on the
terms of the sentence to be probated, it does not change the
result. If a plea bargain fails to address certain matters, the
defendant has no right to demand performance of terms not
appearing in the agreement or record. Ex parte Williams, 758
S.W.2d 785, 786 (Tex.Crim.App. 1988). At worst, the parties
simply had no agreement on the term of sentence which was
to be probated thereby leaving it to the trial court to set the
term. Appellant however, received all he bargained for - one
year probation. The judgment did not exceed the terms of the
plea bargain. Therefore, this appeal is limited by the usual
requirements pertaining to plea bargains in misdemeanor
cases.
Also within the ambit of his first issue, appellant
asserts several separate sub-issues which he contends serve as
a basis for reversal. We detect four distinct sub-issues in
appellant's argument. (1) the judgment was signed by a judge
who recused himself; (2) the senior district judge who
presided over appellant's retrial was not properly appointed;
(3) the trial court erred in ruling that the child witness could
testify, and (4) appellant's plea was not voluntary.
Additionally, after submission appellant raised a related issue
11
challenging the authority of the senior district judge to sign a
final judgment during the abatement of this appeal. We
conclude each of these matters arguably falls within an
exception to the general rule discussed above restricting issues
on appeal, therefore, we will address each sub-issue in turn.
Appellant first complains that the presiding judge of
the 191* District Court, the Honorable Harold Entz, signed the
judgment in this case even though Judge Entz had recused
himself after the appellant's first trial. After submission, we
abated this appeal to allow the Honorable Robert Dohoney,
who presided over appellant's retrial, to sign a final judgment
in this case. Judge Dohoney promptly signed the judgment
and the appellate record has been supplemented accordingly.
Therefore, appellant's complaint is moot.’
3 Our order of abatement, issued September 21,
2000, states that the record reflects Judge Entz recused
himself and therefore the judgment he signed was void.
See Sparkman v. State, 997 S.W.2d 660, 664 (Tex.App.-
Texarkana 1999, no pet) (holding recused judge in
criminal case may not take any action in a case after
recusal). A more thorough review of the record,
however, reveals that our statement concerning the
record may have been in error. The record in fact
contains no order of recusal. The only reference in the
record relating to the presiding judge's decision not to
preside over the retrial is an undated handwritten
notation, which appears to be written on two “ post-it”
notes stuck to the docket sheet. The notation states: “I
am ‘out’ of this case. Bob Dohoney is the ‘assigned’
12
Appellant further contends that Judge Doh ney was
not properly appointed to appellant's case because there was
no order of appointment by the presiding judge of the first
administrative region appointing Judge Dohoney following
the purported recusal of Judge Entz. Appellant's complaint
lacks merit and is untimely. We take judicial notice that Judge
Dohoney is a duly designated senior judge, having retired as
a district judge and having timely elected to be a judicial
officer. See Herrod v. State,650S.W.2d 814, 817 (Tex.Crim.App.
1983)(taking judicial notice that retired judge timely elected to
continue as a judicial officer), Buchanan v. State, 471 S.W.2d
401,404 (Tex.Crim.App. 1971) (same). A retired judge sitting
by administrative assignment possesses all powers of the court
to which the judge is assigned. Alexander v. State, 903 S.W.2d
881, 883 (Tex. App.-Fort Worth 1995, pet. ref’d). If a judge is
properly assigned to one district court, the judge is authorized
to preside in other district courts of the same county. Ex party
Dharmagunaraine, 950 S.W.2d 140, 141 (Tex.App.-Fort Worth
1997, pet. ref’d) (op. On reh’g) (en banc). No formal order of
appointment is necessary for the judge of one district court to
judge. Ask Debbie to present this to Judge Dohoney —-
-HE” There is no explanation as to why Judge Entz
considered himself to be “ ‘out’ of the case.”
Nonetheless, because the State has not contested
appellant's assertion that Judge Entz recused himself,
and because whether he did makes no difference to our
ultimate disposition, we do not disturb our September
21lorder.
13
preside over a case in the place of the elected judge. Buchanan,
471 S.W.2d at 404. A retired judge who has properly filed an
election to continue to serve as a judicial officer is a district
judge in this sense, and no formal order of appointment is
necessary for the retired to judge (sic) to preside over a case in
the stead of an elected judge. Id. Furthermore, procedural
irregularities in the referral of a matter to a visiting judge does
not render a judgment void. See Davis v. State, 956S.W.2d 555,
560 (Tex.Crim.App. !997).
Appellant complains that the record fails to reflect any
order appointing judge Dohoney to the 194" District Court.
Appellant, however, has failed to show that Judge Dohoney
was not generally assigned to another district court in Dallas
County. As a senior judge generally assigned to another
district court in Dallas County, Judge Dohoney could sit for
another district judge and preside over appellant's trial in the
194" District Court without the necessity of a formal order.
Absent any evidence to the contrary, we presume Judge
Dohoney was properly assigned to a district court in Dallas
County. Furthermore, appellant failed to object to Judge
Dohoney’s authority at trial, and he may not assert the
objection for the first time on appeal. See Wilson v. State, 977
S.W.2d 379, 380-81 (Tex.Crim.App. 1998) (holding defendant
cannot object for the first time on appeal to a procedural
irregularity in the assignment of a former judge who is
otherwise qualified. Accordingly, we resolve this issue
against appellant.
14
In a supplemental issue raised after submission,
appellant complains that after we issued our order abating
this appeal to allow Judg Dohoney to sign a final judgment,
appellant filed a motion to recuse Judge Dohoney.’ Judge
Dohoney, however, proceeded to sign the final judgment
without referring appellant's motion to the presiding judge as
required by rule 18a of the Texas Rules of Civil Procedure.
Appellant asserts Judge Dohoney erred in failing to refer
appellant's recusal motion to the presiding judge.
We have not granted leave for appellant to file a
supplemental issue. See Tex. R. App. P. 38.7. Nonetheless, we
address the issue in the interest of justice, and we conclude the
issue lacks merit. The court of criminal appeals has adopted
rule 18a of the Texas Rules of Civil procedure for criminal
cases. Arnold v. State, 853 S.W.2d 543, 544 (Tex. Crim. App.
1993). Rule 18a requires that upon the filing of a recusal
motion, the judge recuse himself or refer the motion to the
presiding judge of the administrative region and take no
4. Although appellant's motion was entitled as a “motion to
disqualify,” it is properly termed as a motion to recuse. Disqualification
is limited to three grounds: (1) the judge is the injured party; (2) the judge
has been counsel for the accused or the State, or (3) the judge is related to
the defendant or complainant by affinity or consanguinity within the
third degree. See Tex. Code Crim. Proc. Ann. art. 30.01 (Vernon Supp.
2001). Appellant asserted none of these grounds in his motion. Rather,
appellant restated his contention that Judge Dohoney was never properly
assigned to the case. Therefore, appellant presented no grounds for
disqualification, and we consider the motion to be one for recusal.
15
further action except for good cause specifically stated in the
order in which such action is taken. Tex. R. Civ. P. 18a(c).
Rule 18a further provides, however, that a motion to recuse
must be raised at least ten days prior to trial or must be
verified. Tex. R. Civ. P. 18a(a). Appellant failed to comply
with either requirement, and he has proffered no explanation
for the failure to do so. If a recusal motion does not comply
with rule 18a, the trial judge is under no obligation to either
recuse himself or refer the motion for assignment to another
judge. DeBlanc v. State, 799 S.W.2d 701, 795 (Tex. Crim App.
1990)(“Failure to comply with the ten day notice provision of
Rule 18a bars complaint on appeal of the denial of a separate
hearing before another judge on the motion to recuse”); Bruno
v. State, 916 S.W2d 4, 7 (Tex. App. - Houston [1" dist.] 1995, no
pet.)(holding failure to verify motion to recuse precluded
appellate review; cf. Metzger v. Sebek, 892 S.W.2d 20, 49 (Tex.
App. - Houston [1" dist.] 1994, writ denied)(holding in civil
action that compliance with ten day provision not required
when compliance is impossible through no fault of party
asserting motion to recuse). There is no reason appellant
could not have complained of Judge Dohoney’s assignment
prior to trial and appellant's failure to verify the motion
further renders it defective. Therefore, Judge Dohoney was
not required to consider appellant's motion. DeBlanc, 799
S.W.2d at 705; Bruno, 916 S.W.2d at 7: see also madden v. State,
911S.W.2d 236, 239 (Tex. App. - Waco 1995, pet. ref’ d)(holding
defendant waived recusal motion when complaint was
asserted for first time on appeal).
16
We next turn to appellant's voluntariness complaint.*
Appellant contends his plea was involuntary because it was
made under threat that the State would use its eleven-year
rebuttal witness. Appellant contends the child was prepared
to lie and, additionally, the child’s testimonywould tend in
some manner to associate appellant with sexual abuse, thereby
depriving appellant of a fair trial.
The voluntariness of a guilty plea is determined by the
totality of the circumstances. Munoz v. State, 840S.W.2d 69, 74
(Tex. App. - Corpus Christi 1992, pet. ref'd). Proper
admonishment by the trial courtcreates a prima facie showing
that a guilty plea was knowing and voluntary. Tovar-Torres v.
State, 860 S.W.2d 176, 178 (Tex. App. - Dallas 1993, no pet.).
The burden then shifts to the defendant to prove that he did
5. Traditionally, voluntariness issues may be asserted for the first
time on appeal notwithstanding a guilty plea pursuant to a plea bargain.
See Flowers v. State,, 935 S.W.2d 131, 133-34 (Tex. Crim. App. 1996); Moore
v. State, 4 S.W.3d 269, 272 (Tex. App. - Hous. [14" Dist.] 1999, no
pet.)(“ voluntariness of a plea can always be challenged on appeal as a
fundamental right”). The court of criminal appeals, however, has
recently determined that under appellate rule 25.2(b)(3) voluntariness
may not be raised in a direct appeal fol!»wing a plea-bargained felony
conviction, unless the defendant obtains the permission of the trial court.
See Cooper v. State, No. 1100-99, 2001 WL 321579 (Tex. Crim. App. April 4,
2001). As we have discussed, however, rule 25.2(b)(3) does not apply to
appellant's misdemeanor conviction. We, therefore, assume, without
deciding that notwithstanding a plea bargain, a defendant may raise
voluntariness for the first time on appeal in a misdemeanor case.
17
not understand the consequences of his plea. Id. Further,
when a defendant indicates at the plea hearing that he
understands the nature of the proceeding and is pleading
guilty because the allegations in the indictment are true, not
because of any outside pressure or influence, he has a heavy
burden to prove on appeal that his plea was not made
knowingly and voluntarily. Curry v. State, 861 S.W.2d 479, 483
(Tex. App. - Fort Worth 1993, pet ref’d); Jones v. State, 855
S.W.2d 82, 84 (Tex. App. - Houston [14" Dist.] 1993, pet. ref’ d).
While appellant may well have felt pressure to agree
to a plea bargain rather than risk the jury hearing from the
State’s rebuttal witnesses, mere pressure to plead guilty does
not render a plea involuntary. “All pleas of guilty are the
result of some pressures or influences on the mind of the
defendant . . . The crucial issue is whether, under all the facts
and circumstances, the plea was truly voluntary. The plea
must be a genuine one by a defendant who understands the
situation, his rights, and the consequences of his plea and is
neither deceived nor coerced.” Gaither v. State, 479S.W.2d 50,
31 (Tex. Crim App. 1972)(quoting Schnautz v. Beto, 416 F.2d
214, 215-16 (5" Cir. 1969)).
The record reflects that appellant was duly
admonished concerning the consequences of his plea and that
he knowingly and intelligently entered his plea. Appellant
specifically stated he was pleading guilty simply because he
was guilty and no one threatened, forced, or coerced him into
entering the plea of guilty. In fact, appellant does not claim
18
that he was unaware of or in anyway misled as to the
consequences of his plea. Every indication in the record is that
appellant was fully aware of his rights and the consequences
that would follow his plea, including disbarment for a
minimum of five years. Asan experienced attorney, appellant
was better equipped then most criminal defendants to
appreciate the consequences of his plea. Appellant's
voluntariness argument amounts to nothing more than an
assertion appellant made a difficult decision which he later
came to regret. “A difficult decision is not an involuntary
decision.” Torres v. State, 925S.W.2d 361, 363 (Tex. App. - Fort
Worth 1996, no pet.). Appellant has failed to meet his heavy
burden of establishing that his plea was involuntary.
Appellant next contends the trial court erred in ruling
that the eleven-year -old witness could testify. Appellant
complains he was unfairly surprised by the State’s failure to
designate the witness and that her testimony improperly
raised extraneous offenses which were remote, immaterial,
and irrelevant, and any probative value of her testimony was
overwhelmingly outweighed by its adverse effect upon the
jury. Appellant apparently contends he would not have
accepted the plea bargain And pled guilty but for the trial
court's erroneous ruling to admit this testimony. This
argument also lacks merit.
Because the testimony was offered in rebuttal, the State
was not required to designate the witness pursuant to rule
404(b). See Tex. R. Evid. 404(b)(providing that upon timely
Es
19
request, State must provide reasonable notice of State’s intent
- to introduce other crimes, wrongs, or acts in States case-in-
chief). As a general rule, the State is entitled to present on
rebuttal any evidence that tends to refute a defensive theory
as well as the evidence introduced to support that theory.
Marles v. State, 919 S.W.2d 669, 672 (Tex. App.-San Antonio
1996, pet. ref'd). The possibility that such rebuttal evidence
may encompass extraneous offenses or acts on the part of the
defendant does not preclude its admission into evidence.
Yohey v. State , 801 S.W.2d 232,236 (Tex App.-San Antonio
1999, pet. ref'd). Because appellant's testimony raised the
issue of the defensive theory of mistake, the State was entitled
to rebut that theory even if the rebuttal evidence consisted of
extraneous offenses. See, e.g. Davis v. State, 979S.W.2d 863, 867
(Tex. App.-Beaumont 1998, no pet.).
Additionally, the testimony was also relevant for
purpose other than character conformity. See Tex. R. Evid.
404(b)(providing that evidence of other crimes, wrong, or
acts are not admissible to prove the character of a person in
order to show action in conformity therewith, but may be
admissible for other purposes). Appellant testified thathe had
no criminal intent but merely made innocent mistakes.
Evidence that appellant suborned perjury in another case,
however, was relevant to show absence of mistake in the
present case.
Furthermore, we cannot say, after considering all
relevant factors, that the trial court clearly abused its
20
discretion in determining that the testimony was not unfairly
prejudicial under rule 403. See Tex. R. Evid. 403, see also Reese
v. State, 33 S.W.3d 238, 240-41 (Tex. Crim App. 2000);
Montgomery v. State, 810 S.W.2d 372, 391-93 (Tex. Crim App.
1990)(op. on reh’g). A trial court’s ruling on a rule 403
objection is reviewed under the abuse of discretion standard
and will be reversed only if it is not within the zone of
reasonable disagreement. See McFarland v. State, 845 S.W.2d
824, 837-38 (Tex. Crim. App. 1992). Rule 40s “favors
admissibility of relevantevidence, and the presumption is that
relevant evidence will be more probative than prejudicial.”
Long v. State, 823 S.W.2d 259, 271 (Tex. Crim. App. 1991).
“Almost every piece of evidence presented at trial can be said
to be prejudicial to one side or the other. Only evidence that
is unfairly prejudicial must be excluded under Rule 40s.” Mill
v. State, 2S.W.3d 475, 482 (Tex. App.-Tyler 1999, no pet.).
While appellant does not elaborate as to why he
contends the child’s testimony was unfairly prejudicial,
appellant seems to argue that because the child would have
testified appellant attempted to persuade her to say she was
notsexually molested by her half-brother, appellant would be
tainted with “emotionally charged” allegations of
“unsubstantiated sexual abuse.” Appellant's argument is
~ speculative. Neither the child’s testimony, nor any other
evidence, in any way implicated appellant in sexual abuse.
We cannot conclude that the trial court acted outside the zone
of reasonable disagreement in determining the jury could have
considered the testimony for its intended purpose other than
21
imputing extraneous content to the testimony that has no basis
in fact.
Finally, even if the trial court did err in its preliminary
ruling to admit the testimony, we cannot conclude the error
was harmful. Appellant's guilty plea deprives us of the
opportunity to review the evidence in the full context of the
trial. The evidence was never admitted before the jury, and it
was not dispositive of guilt. The jury may or may not have
convicted appellant. We have no way of knowing the weight
it might have accorded the testimony and what, if any,
limiting instructions the court may have given. Further, we
have no way of knowing, as the testimony from all seven
rebuttal witnesses may have been developed before the jury,
whether the trial judge might have changed his mind as to
whether the extraneous offense evidence was admissible.
Under these circumstances, we cannot conclude the ruling
affected a substantial right of appellant's requiring reversal.
See Tex. R. App. P. 44.2(b).
While appellant's first issue also digresses through a variety
of other matters which occurred during the course of this
litigation, we fail to detect any further issues relevant to this
appeal. To the extent appellant has attempted to raise yet
further issues under the heading of his “first” issue, we hold
that any such issues have been waived for improper briefing.
See McDuff v. State, 939 S.W.2d 607, 613 (Tex. Crim App. 1997);
Stahle v. State, 970 S.W.2d 682, 692 (Tex. App-Dallas 1998, pet
22
ref'd.). Accordingly we resolve each h of the matters raised in
appellant's first issue against him.
In his second issue, appellant contends the aggravated
perjury statute pursuant to which appellant was indicted is
unconstitutional. Appellant specifically contends that the
provision of the statute which requires materiality to be
determined by the court runs afoul of United States Supreme
Court authority holding that all elements of a criminal offense
must be determined by a jury. See United States v. Gaudin, 515
US. 506, 522-23 (1995). Appellant contends he preserved this
issue for review by raising it in a motion to dismiss filed in the
re-indicted case following the first trial.° However, other
courts which have considered this issue have determined that
it is premature to assert this issue in a motion to dismiss this
indictment. See Ex. Parte Tamez, 4 S.W.3d 366, 367-68 (Tex.
App.-Houston [1* Dist.] 1999, no pet.) We need not decide,
however, whether the issue was properly preserved and, if so,
whether the statute is unconstitutional. In the case at bar, the
State filed a motion to reduce the aggravated perjury charge
to misdemeanor perjury, and it is the misdemeanor charge to
which appellant plead guilty and was convicted. The
misdemeanor perjury statute does not suffer from the same
constitutional infirmity alleged to exist in the felony statute.
Compare Tex. Pen., Code Ann. §37.02 (Vernon 1994) with Tex.
6. For the same reason, the State concedes we have jurisdiction to
address this issue
23
Pen. Code Ann. §37.03(a)(2) Vernon 1994). Accordingly,
because appellant pleaded guilty to a different offense than he
challenges on appeal, any error in the trial court's failure to
dismiss the aggravated perjury indictment was harmless.’ See
Tex. R. App. P. 44.2. We resolve appellant's second issue
against him.
In his third issue, appellant contends this prosecution
is barred by the principle of double jeopardy. Appellant
contends that the constitutional infirmity he complains of in
his second issue related in an erroneous instruction to the jury
in the first trial, and the erroneous instructin was the cause
of the mistrial. Therefore, appellant contends jeopardy
attached when the first trial resulted in a mistrial.
The State contends appellant waived his issue by
failing to assert it before trial in the reindicted case and by
pleading guilty. See Gonzalez v. State 8 S.W.3d 640, 642-44
(Tex. Crim. App. 2000) (noting “[o]ur case-law on preservation
of double jeopardy claims is not a model of clarity,” but
stating in dicta that a successive prosecution claim can in
certain instances be waived by failing to assert it at trial); but
see Ex parte Birdwell, 7 S.W.3d 160,163 (S\Tex. Crim. App.
1999) (noting that pleading guilty by itself does not bar a
double jeopardy attack). Assuming for purpose of discussion
7. We note additionally that appellant has not asserted that the
alleged constitutional infirmity in any way rendered his plea involuntary.
24
that appellant's double jeopardy claim has been preserved for
review, we nevertheless conclude it is without merit. First,
appellant cites not authority for his position other than cases
setting forth the general principle that jeopardy attaches when
the jury is sworn. This general principle, however, does not
bar retrial following a hung jury. Durbin v. State, 716 S.W.2d
131,133 (Tex. App-El Paso 1986, pet ref’d); see also Serna v.
State, 882 S.W.2d 885, 887 (Tex. App.-Corpus Christi 1994, no
pet.) (“Balanced against [double jeopardy] . . . right of society
to be protected from those guilty of crimes by enabling society
to retry the accused under certain circumstances.”).
Additionally, appellant's contention that the allegedly
unconstitutional provision in the aggravated perjury statute
led to a hung jury in the first case is merely speculative and
has no basis in the record. Further, appellant fails to explain
why an erroneous jury instruction based on an
unconstitutional provision in a statute would necessarily
cause jeopardy to attach in this case and bar retrial. Cf. United
States v. Gaudin, 28 F.3d 943, 952 (9" Cir. 1994) (remanding
case for further proceedings following reversal for failure to
submit materiality element to jury). aff'd, 515 U. S. 506 (1995).
Therefore, we conclude appellant has failed to demonstrate
retrial was barred by the principle of double jeopardy, and we
resolve appellant's third issue against him.
In his fourth issue, appellant claims there was no
probable cause for the aggravated perjury indictment. This
issue has not been preserved for review. Appellant's only
attack on the indictment in the reindicted perjury case was
25
that the aggravated perjury statute is unconstitutional. Prior
to trial, appellant did not contest lack of probable cause in the
reindicted case, and he did not move to incorporate motions
and orders from the dismissed case to the reindicted case. Cf.
Hanie v. State, 820 S.W.2d 7, 9 (Tex. App.-Dallas 1991, writ
dism’d w.o.j.) (Holding jury waiver not asserted or adopted in
reindicted case was ineffective). Moreover, appellant has
failed to identify, nor do we find, any place in the record
where appellant timely filed, presented, or obtained a ruling
on any such motion prior to his plea. Appellant was required
to present the matter in writing to the trial court and request
a ruling prior to trial to preserve the issue for review. See
Taylor, 997 S.W.2d at 822; see also Tex. R. App. P. 33.1; Guevara
v. State, 985 S.W.2d 590, 592 (Tex. App.-Hous. [14" Dist.] 1999,
pet. ref'd). Appellant failed to doso. Accordingly, we resolve
appellant's fourth issue against him.®
In his fifth issue, appellant contends the evidence is
insufficient to support the judgment. We conclude appellant
is barred from asserting this issue because of his guilty plea.
A sufficiency challenge is not a jurisdictional issue or a matter
that can be raised before trial, nor did appellant obtain
permission to appeal this matter. See Delatore v. State, 957
S.W.2d 1435, 150 n.3 (Tex. App.-Austin 1997, pet. ref’d)
8. To the extent appellant asserts the same probable cause
argument in his second issue, we resolve it against him for the same
reasons.
26
(holding sufficiency challenge could not be raised following
plea bargain); Rem v. State, 846 S.W.2d 870, 874 (Tex.App.-
Houston [1* Dist.] 1992), aff'd, 873 S.W.2d 383 (Tex. Crim App.
1994). Nonetheless, we observe parenthetically that a guilty
plea aione will support a judgment in a misdemeanor case.
See Isam v. State, 582 S.W.2d 441, 443 (Tex. Crim. App. 1979).
Accordingly, we therefore resolve appellant's fifth issue
against him.
In his final issue, appellant contends the trial court
erred in failing to grant appellant's motion for new trial. It is
well established that the grant or denial of a motion for new
trial lies within the sound discretion of the trial court. Lewis v.
State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995). We do not
substitute our judgment for that of the trial court, rather, we
decide whether the trial court’s decision was arbitrary or
-unreasonable. Id. We will reverse only when the trial court's
decision was clearly wrong and outside the zone of reasonable
disagreement. State v. Gonzalez, 855 S.W.2d 692, 695 n.4 (Tex.
Crim App. 1993). The ruling of the trial court is presumed to
be correct, and the burden rests on the appellant to establish
the contrary. State v. Kelly, 20S.W.3d 147, 150-51 (Tex. App.-
Texarkana 2000, no pet); State v. Gill, 967 S.W.2d 540, 541 (Tex.
App.-Austin 1998, pet ref’ d); see also Lee v. State, 167 Tex. Crim
608, 611, 322 S.W.2d 269, 262 (1958) In his brief on this issue,
appellant incorporates by reference the previous arguments in
his briefing, refers us to his motion for new trial, and argues
generally that the trial court should have granted a new trial
in the interest of justice. This is sufficient to show the trial
27
court abused its discretion in denying appellant’s motion.
Appellant has failed to cite any fact-specific authority or
meaningful analysis to demonstrate reversible error. See
Stahle, 970 S.W.2d at 692 (determining appellant failed to
preserve issue for review when brief provided no discussion
or analysis of relevant authorities or the record to support his
argument). Under these circumstances, we cannot conclude
this point has been adequately preserved for our review.
Nonetheless, in the interest of justice we have
reviewed appellant's motion for new trial, and we conclude
the issues raised therein were either waived by appellant as a
result of his guilty plea or are not supported by the record. In
particular, we note that on the basis of the record the trial
court could have reasonably concluded appellant's claim of
newly discovered evidence was baseless. All of the evidence
appellant claimed was new consisted of impeachment and
character evidence to attach the credibility of the child witness
proffered by the State. The record demonstrates appellant had
access to or was aware of all this evidence well before trial.
Appellant's actual complaint appears to be not that the
evidence was newly discovered, but that he was unprepared
to present it because he was surprised by the State’s rebuttal
witnesses. The fact appellant was unprepared to present his
evidence does not make it new. Appellant did not request a
postponement of the proceedings to marshal his evidence, and
he asserts no claim of error that he was denied the
opportunity. Rather, appellant undertook to bargain with
28
the State as to his punishment and to plead guilty. This was
appellant's choice, a choice which we have already
determined appellant made knowingly and voluntarily. We
cannot conclude the trial court abused its discretion in
denying appellant's motion for new trial. We therefore
resolve appellant's sixth issue against.
We affirm the judgment-of the trial court.
/s/Tom James
TOM JAMES
JUSTICE
Do Not Publish
Tex.R.App.P. 47
991053F.U05
29
Appendix No. 3
In The
Court of Appeals
Fifth District of Texas
JUDGMENT
JAY SHELDON FICHTNER, Appellant
No. 05-99-01053-CR_ V.
THE STATE OF TEXAS
Appeal from the 194" Judicial District Court of Dallas
County, Texas (Tr. Ct. No. 97-03659-KM}
Opinion delivered by Justice James, Justices Wright
and Bridges participating.
Based on the Court's opinion of this date, the judgment
of the trial court is AFFIRMED.
Judgment entered April 5, 2001.
/s/
Tom James, Justice
30
Appendix No. 4
Order issued September 21, 2000
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-99-01053-CR
JAY SHELDON FICHTNER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 194" Judicial District Court
Dallas County, Texas
Trial Court Cause No. F97-03659-KM
ORDER
Before Justices James, Wright, and Bridges
The record in this case reflects that Honorable Harold
Entz, presiding judge of the 194" Judicial District Court
31
recused himself in this case. The Honorable Robert Dohoney
thereafter presided over the proceedings as a visiting judge.
The March 12, 1999 judgment, however, bears Judge Entz’s
signature. A judge may not take any action in a case after he
recuses himself. See Sparkman v. State, 997 S.W.2d 660-, 664
(Tex. App.-Texarkana 1999, no pet). Therefore, we conclude
the judgment signed by Judge Entz is void and no final
judgment presently exists in this case.
Accordingly, we ORDER the Honorable Robert
Dohoney to sign a judgment in conformity with the plea
bargain approved by Judge Dohoney and the judgment
pronounced by him in open court on March 11, 1999.
We further ORDER the district clerk’s office to
transmit a supplemental clerk’s record containing the
judgment signed by Judge Dohoney to this Court by
OCTOBER 9, 2000.
We DIRECT Clerk to send copies of this order to the
following:
Honorable John Ovard
Presiding Judge
First Administrative District
Frank Crowley Courts Building
133 N. Industrial Blvd, LB 50
Dallas, Texas 75207
32
Honorable Robert Dohoney
Route 2, Box 759M
Whitney, Texas 76692
Herb White
District Clerk’s Office
Transcript Department
Frank Crowley Courts Building
133 N. Industrial Blvd.
Dallas, Texas 75207
The Court ABATES this appeal to allow the Honorable
Robert Dohoney to comply with this order. The appeal will be
reinstated on October 9, 2000 or when the supplemental
record containing the judgment is received, whichever is
earlier.
/S/Carolyn Wright
CAROLYN WRIGHT
PRESIDING JUSTICE
33
Appendix No. 5
No. F97-03659-KM PDA VOL 404
PAGE 23
THE STATE OF TEXAS [ANUARY TERM, 1999
VS.
[AY SHELDON FICHTNER MARCH 12, 1999
JUDGMENT AND ORDER PLACING THE DEFENDANT
ON PROBATION
The defendant having been indicted in the above cause
for the felony offense of AGGRAVATED PERJURY, A 3®°
DECREE FELONY OFFENSE AS CHARGED IN THE
INDICTMENT and this cause being called for trial, came the
Criminal District Attorney for the State of Texas, and the
defendant in person and with his counsel appeared in open
Court this day, and the State having filed written motion to
reduce the offense charged to the lesser and included
misdemeanor offense of: PERJURY, A CLASS A
MISDEMEANOR ASINCLUDEDIN THEINDICTMENT and
the Court having granted such motion, and the defendant
having been duly arraigned waived trial by jury and having
submitted all issues herein to the Court, and the defendant
plead guilty to said lesser and included misdemeanor offense,
and the Court having received said plea, and having heard the
evidence adjudged the defendant guilty of said less and
included misdemeanor offense and assessed his punishment
34
at a fine of $300.00 and 1(ONE) YEAR confinement in the
Dallas County jail, together with all costs in this behalf
incurred.
It appearing to the Court that the best interests of
society and of the defendant in this cause will best be served
by granting the defendant probation herein, and withholding
execution of sentence herein, it is
ORDERED that imposition of sentence of the Judgment
of conviction of the Court herein shall be suspended for a
period of 1(ONE) YEAR, upon the following terms and
conditions of probation, to-wit: That during the term of
probation the defendant shall:
SEE ATTACHED CONDITIONS
/s/ Harold Entz
Judge
Ne ee ee ee a a
35
Appendix No. 5 (cont'd)
CONDITIONS OF COMMUNITY SUPERVISION
(REGULAR CONDITION S)
THE STATE OF TEXAS IN THE 1947 JUDICIAL
DISTRICT COURT
VS. DALLAS COUNTY, TEXAS
FICHTNER, [AY SHELTON (sic) JANUARY
TERM, 1999
CAUSE NO. F97-03659-M
Perjury
C264213
MISDEM. PROBATION XXXX
DEFERRED PROBATION
SHOCK /BOOTCAMP
STATE JAIL
On this date, March 11, 1999 you are hereby placed on
Community Supervision for a period of 1 years (sic). It is the
order of this Court that you comply with the following
conditions of Community Supervision:
(A)
(D)
(E)
(F)
(G)
(H)
36
Commit no offense against the laws of this or any
other state of the United States and do not possess a
firearm during the term of Community Supervision;
Do no use or ingest controlled substances without a
valid prescription for said substance from a licensed -
physician.
do notassociate with individuals who commit offenses
against the laws of this or any other state or the United
States;
Report to the Supervision Officer: WEEKLY, TWICE
MONTHLY or MONTHLY, as directed by the
Supervision Officer;
Permt the Supervision Officer to visit you at your
home or elsewhere and give notice to the Supervision
Officer no less than 24 hours PRIOR to - change of
residence or employment;
Obtain and maintain employment approved by this
Court;
Do not leave Dallas County, Texas without first
obtaining permission from your Supervision Officer;
Make payments of $55.00 per month to the
Community Supervision and Corrections Department
37
to be credited toward the following: RESTITUTION $
-0-, FINE $300.00, COURT COST $142.00, COURT
APPOINTED ATTY FEE $-0-, URINALYSIS FEE $-0-,
CRIMESTOPPER FEE $50.00;
(I) Support your dependents;
(J) Pay a supervision fee of $40.00 per month to the
Community Supervision and Corrections Department
on or before the first day of each month hereafter
during the term of Community Supervision.
(Continued on Page 2 attached)
38
Appendix No. 5 (cont'd)
Conditions of Community Supervision
(Regular Conditions)
Page 2
Name: Fichtner, Jay Sheldon Cause No.: F97-02329M
(K) [Ed. note: Paragraph “K” is deleted].
(L) Submit to urinalysis as directed by your Supervision
Officer;
(M) Effective March 11, 1999; (sic) all licensing to practice
law in this or any other state of the United States shall
be resigned by the defendant for a period of 5 years
from this date.
The Conditions of Community Supervision may be
modified by this Court at any time during the period of
supervision. The Judge may impose any reasonable condition
that is designed to protect or restore the community, protect
or restore the victim, punish or reform you. The Court also
has the authority at any time during the term of probation, to
revoke or proceed to adjudicate your probation for violation
of any condition of your probation as set out above.
Witness our signatures this 11" day of March, 1999.
a
/s/Jay S. Fichtner /s/€Uarold Entz
DEFENDANT JUDGE
/s/2.?. Rios
Community Supervision Officer
40
Appendix No. 6
No. F97-03659-KM
PDA Vol. 404, Page 23
THE STATE OF TEXAS January Term, 1999
vs.
JAY SHELDON FICHTNER March 12, 1999
JUDGMENT AND ORDER PLACING THE DEFENDANT
ON PROBATION
The defendant having been indicted in the above cause for the
felony offense of AGGRAVATED PERJURY, A 3°° DECREE
FELONY OFFENSE AS CHARGED IN THE
INDICTMENT/REIND, and this cause being called for trial,
came the Criminal District Attorney for the State of Texas, and
the defendant in person and with his counsel appeared in
open Court this day, and the State having filed written Motion
to reduce the offense charged to the less and included
misdemeanor offense of: PERJURY, A CLASS A
MISDEMEANOR ASINCLUDED IN THE INDICTMENT, and
the Court having granted such motion, and the defendant
having been duly arraigned waived trial by jury and having
submitted all issues herein to the Court, and the defendant
plead guilty to said less and included misdemeanor offense,
and the Court having received said plea, and having heard the
evidence, adjudged the defendant guilty of saidless and
included misdemeanor offense and assessed his punishment
4]
| ata fine of $300.00 and 1(one) YEAR confinement in the Dallas
County jail, together with all costs in this behalf incurred,
It appearing to the Court that the best interests of
society and of the defendant in this cause will best be served
by granting the defendant probation herein, and withholding
execution of sentence herein, it is
ORDERED that imposition of sentence of the Judgment
of conviction of the Court herein shall be suspended for a
period of 1l(one) YEAR, upon the following terms and
conditions of probation, to-wit: that during the term of
probation the defendant shall:
SEE ATTACHED CONDITIONS
[Hand-written] SIGNED September 29, 2000 as
ORDERED by ORDER issued September 21, 2000 in Cause No.
05-99-01053-CR in the Court of Appeals, Fifth District of Texas
at Dallas.
/s/ Robert D. Dohoney
Judge
[Ed. Note: No conditions are attached].
42
Appendix No. 7
Order issued October 12, 2000
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-99-01053-CR
JAY SHELDON FICHTNER, Appellant
V.
THE STATE OF TEXAS, Appellee
ORDER
The Court REINSTATES this appeal.
On September 21, 2000, this Court concluded the
judgment signed by the Honorable Harold Entz was void
because Judge Entz had previously recused himself in the
case. We ordered the Honorable Robert Dohoney to sign a
judgment in conformity with the plea bargain approved by
Judge Dohoney and the judgment pronounced by him in open
court. On October 11, 2000, we received a supplemental
43
clerk’s record containing the judgment signed by Judge
Dohoney. Accordingly, we now have before us the judgment
- from which the appeal is taken.
/s/Carolyn Wright
Carolyn Wright
Presiding Justice
44
Appendix No. 8
NO.
IN THE TEXAS COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
JAY SHELDON FICHTNER
| V.
THE STATE OF TEXAS
PETITION TO REVIEW
UNPUBLISHED OPINION OF THE
5™ DISTRICT COURT OF APPEALS
NO. 05-99-01053
AND
THE JUDGMENT OF THE
194™ JUDICIAL DISTRICT COURT OF
DALLAS COUNTY, TEXAS IN TRIAL
TRIAL CAUSE NOS. F 97-03659-KM
AND
F 96-02329-UM
APPELLANT’S ORIGINAL BRIEF
ORAL ARGUMENT REQUESTED
Jay S. Fichtner
Suite 740, Quorum Place
14901 Quorum Drive
45
Dallas, Texas 75240-6793
Tel: 972-404-9991
Fax: 972-404-9994
TABLE OF CONTENTS
ge ee 1
IDENTITY OF PARTIBS . 2... occ cc ccc cc cusecccee, 12
eS 14
Issues and Points Presented for Review ............... 16
1™ Issue or Point Presented for Review .......... 16
2™ Issue or Point Presented for Review ......... 16
3™ Issue or Point Presented for Review ...... ee
4" Issue or Point Presented for Review ......... 17
5" Issue or Point Presented for Review ..>...... 17
6" Issue or Point Presented for Review ......... 18
1™ Issue or Point Presented for Review .......... 18
Statement and Argument in Support of 1
ME wits ei cei Gece peel. ss nus: 19
Conclusion of 1* Issue ................. 36
2™ Issue or Point Presented for Review ......... 37
46
3™ Issue or Point Presented for Review
47
4" Issue or Point Presented for Review ......... 38
Statement and Argument
of 2™, 3 and 4" Points .......... 38
Conclusion of 2, 3 and 4" Points ...... 54
ee eT TT TO OEE ST eran 55
Statement and Argument of 5" Point
Loe Ce ee Tee eee 56
Conclusion of 5" Point ................. 62
6" Issue or Point Presented for Review ......... 62
Statement and Argument of 6" Point .... 63
Conclusion of 6" Point ................. 65
(NII 8.65.5 hes dalek ee edo ee a 66
48
TABLE OF AUTHORITIES
TEXAS CASES
Alvarez v. State, 511 S.W.2d 493 (Tex.Crim. App. 1974)
Banowsky v. State Farm Ins. Co., 876 S.W.2d 509 (Tex.App.
RDERTO TIPR, CP WINE) ng oc vce tcsecedsucutenunes 32, 36
Bledsoe v. Mack, 57 S.W.2d 869 (Tex.Civ.App. Galveston 1933,
UR UT a 6s CEs an bee eee eee 37, 38
Bonilla v. State, 933 S.W.2d 538, 543 (Tex.App. Houston [1*
GE PT PD oss caves esktactenceesenieeel 45, 49
Brasher v. State, 715 S.W.2d 827, 831 (Tex.App. Houston [14"
ee Pe eer ee 37
Brownlee v. Brownlee, 665 S.W.2d 111 (Tex. 1984) ........ 37
Buckholts ISD, et al. V. Glaser, 632 S.W.2d 146, 148 (Tex. 19827
Burke v. Satterfield, 525 S.W.2d 950, 955 (Tex. 1975) ...... 36
Cameron v. State, 530 S.W.2d 841 (Tex.Crim.App. 1975)
49
Carter v. State, 565 S.W.2d 468 (Tex.Crim. App. 1983)
Champion Int’ Corp. v. Twelfth Court of Appeals, 762 S.W.2d 898,
A RRS 56, 57
Clewis v. State, 922 S.W.2d 126 (Tex.Crim. App. 1996)
EE 49
Davis v. California Shoes, Inc., 612 $.W.2d 703, 704
(Tex.Civ.App, Dallas 1981, no writ) ............. 36, 37, 44
Ervin v. State, 1999 WI. 10277 (Tex.Crim. App. 1999)
sey is occ ces ceccceccocee. 25
Eubanks v. State, 1999 WL 976163 (Tex.App. Texarkana 1999,
os eg oe a a 27
Fry v. Tucker, 202 S.wW.2d 218, 221 (Tex. Sa 27
Graham v. McCarty, 69 Tex. 323,7S.W.342............. 36
Haft v. State, 446 5 W.2d 824 (Tex.Crim.App. 1967) ...... 19
Helms v. State, 484 S.w.2d 924, 927 (Tex. Cr. App. 1972)
Bae ES 25, 27
50
Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 918 (Tex.
| eer ee Tee er ere Pere TT ET Te Tee Teer 56
Mitchell v. State, 608 S.W.2d 228 (Tex.Crim.App. 1980)
License eben ke cee CONES ERK ERLEV ROE RLe ees ee 33
Savage v. Herrin Transfer & Warehouse Co., 219 S.W.2d 101
(Tex.Civ.App. Galveston 1949, no writ) ..............: 37
Schoenfeld v. State, 56 Tex. Crim. 103, 119S.W.101 ..... 36,
37
Sharkey v. State, 994 S.W.2d 417 (Tex.App. Texarkana 1999, no
errr rrr err Pere rrr rer rer Terre. rt 27
Simon v. York Crane & Rigging Co., Inc., 739 S.W.2d 793, 795
CRU SFE ons CAN every nee nreaksneent ied dpaeedns 9, 57
Spinks v. Matthews, 80 Tex. 373, 374, 12S.W. 1101 ...... 38,
41
State v. Eversole, 889 S.W.2d 418 (Tex.App. Houston [14" dist.]
re SURI Cv oo 60h n ke beer bar U se eteteens 37, 50
State v. Gonzalez, 855 S.W.2d 692 (Tex.Crim.App. 1993) -
State v. Rosenbaum, 910 S.W.2d 934 (Tex.Crim.App. 1995)
LKbWES Cheese TREO AAR ES RENE ENS CONE RENAN 42, 43, 45
ee ee Se
51
State v. Salinas, 1996 WI, 477008 (Tex.App. Houston 1" dist.,
SP eee arene aes che bre vn cseeee vk SeGiine ck ce. 41
Stephenson v. Kirkhyam, 297 S.W. 265, 267 (Tex.Civ.App. San
Antonio 1927, no ME GSM as cas Vesletn: Oke b 27, 28, 32
Stone v. State, 823 S.W.2d 375, 381 (Pet. nk POTEET 49,53
Templeton v. Giddings, 12 S.W. 851 (Tex. a AE 27
Young v. State, 8 S.W.3d 656 (Tex.Crim.App. 2000) ...... 8,
11,19
FEDERAL CASES
Arizona v. Washington, 434 U.S. 497, 98S.Ct. 824, 54 L.Ed.2d 717
U8 o 5 25s Wane died ocsn enna kek enns co kk Secs 27
Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056 (1969)
Liaw EVE DAMME RAEN RAN SS eee p wah EWES ASS Weeks 40, 44
City of Mesquite v. Alladin’s Castle, Inc., 455 U.S. 283
coed LeteeeENees ee Ande bau da bk elwaeenneaGaweed ts 45, 46
Crist v. Bretz, 437 U.S. 28, 33, 98 S.Ct. 2156, 2159 (1978)
(REENPESREAAREDE ACR GME G HW SERS owe did Kd eee caus 53, 57
52
Marbury v. Madison, 5 U.S. (1 Cranch) 137 .............. 45
U. S. Balsys, 524 U.S. 666, 118 S.Ct. 2218 (1998) .......... 44
United States v. Gaudin, 515 U.S. 506, 115 S.Ct. 2310,-132 L.Ed
20 GHA (TDRSS) ono oss caneancaeauee cue ketene eeeees 27
Waldron v. United States, 516 U.S. 928, 116 S.Ct. 333, 133
L.BA2d £59 (IGS 3. 0nd ssc dcae nen caee essen ian reeeas a7
TEXAS CODE OF CRIMINAL PROCEDURE
Ast. LID . . 6.05 ten enna wee ee ees 64, 65
Axt. SBGS . ... 2. ous 00s sk eee euee eam pee ee ener 57
Ast. GOGOL 2... sesackisssncnsenel ben eae eee 44,45
Art. G4.582 . 0. cn vcctenenveubebae nes seep eee esas es 33
se 44
058 5 av 6 ody bd 0 Bk divs vow vce 27
PERE A), (B) OFC)... 5.5. eee eee cccecccceee 33, 35
MN ee ck acek cannes 27
TEXAS PENAL CODE
rea ogo bs oo osu ooo 64
a 16, 27, 33, 36, 56, 61
ie vin sass Sa voce Sew occkccakh 45
5% Amendment
6 Amendment
oe 2 a ee ae ee oo ee
ee a a es ee ee ee ee Oe Oe
55
IDENTITY OF PARTIES
The parties to the trial court judgment and the names
and addresses of trial and appellate counsel are as follows:
Plaintiff: State of Texas
Defendant. Jay S. Fichtner
Plairnitiff’s counsel:
Dallas County Criminal District Attorney
Clark Birdsall
SBN 02333500
Crowley Courts Building
Dallas, Texas 75207
Defendant's counsel:
Kenneth Blassingame
SBN 02472000
4111 N. Central expressway, Suite 202
Dallas, Texas 75204
Edgar A. Mason
SBN 13153000
2612 Boll St.
Dallas, Texas 75204-1002
Gary Patton
SBN 15627400
14275 Midway Rd., Suite 220
56
Dallas, Texas 75001
57
TO HONORABLE JUDGE OF SAID COURT OF APPEALS:
Jay S. Fichtner, Appellant, files this appeal from a
judgment of the 194" Judicial District Court of Dallas County,
Texas, signed on March 12, 1999. In support of this appeal,
Appellant respectfully shows the following:
t of the
Appellant was charged by indictment with aggravated
perjury (CR 002). In a 1" jury trial, the trial court instructed
the jury that the acts charged in the indictment were material
as a matter of law (CR 141-150). The jury could not reach a
verdict and was dismissed (CR 103, 140).
Following the 1“ trial the presiding judge of the 194"
District Court recused himself (CR 007), and a retired judge
presided over post-recusal proceedings, except for signature
and entry of a final judgment (CR 034). No order appointing
the retired judge was signed by the Presiding Judge of the 1*
Judicial Administrative District.
After four days of a 2™ jury trial Appellantentered into
a plea bargain agreement under which he pled guilty to
misdemeanor perjury and agreed to forfeit his Texas law
license of 44 years (CR 033). The plea bargain agreement was
signed on March 11, 1999, before the retired judge (CR 033)
and a judgment was signed on March 12, 1999, by the judge
who earlier had recused himself (CR 34-36).
58
Thereafter, Appellant filed a motion to retract the plea
bargain agreement (CR 38-41) and filed a motion for new trial
(CR 68-70). Following an extended presentation of evidence
on the new trial motion (RR Motion for New Trial Hearing), it
was denied (CR 54). Appellant requested permission to
appeal (CR 063-066). The court granted Appellant's request as
to those matters filed in writing before the time of the plea
(RR Motion for New Trial Hearing, 123, I. 20-25; 124, II. 1-6).
Appellant filed a timely notice of appeal (CR 68-71).
Appellant's appeal has been delayed to give the district clerk
and court reporters time to file their respective extensive
records, the last portion of which was not filed until January
8, 2000.
Issues and Points Presented for Review
1" Issue or Point Presented for Review
Appellant's appeal is not limited by Rule 25.2(b)(3)(A),
(B) or (C), Texas Rules of Appeliate Procedure even though
Appellant pled guilty pursuant to a plea bargain agreement
because the punishment assessed exceeded the punishment agreed
to by the appellant; the judgment is void or voidable for other
material defects; the requirement that Appellant must have
obtained the trial court’s permission to appeal is void and
unenforceable for vagueness and lack of adequate standards;
and the opinion in Young v. State, 8S.W.3d 656 (Tex.Crim. App.
2000) rendered by the Texas Court of Criminal Appeals on
January 5, 2000.
59
2™4 Issue or Point Presented for Review
This appeal charges jurisdictional and structural
defects, the substance of which were raised by written pre-
trial and trial motions, which questioned probability of cause
for the indictment, constitutionality of §37.03 and §37.04, Texas
Penal Code, because under the holding of United States v.
Gaudin, 515 U.S. 506, 115S.Ct. 2310, 132 L.Ed 2d 444 (1995), the
sections violate Appeilant’s5", 6" arid 14 Amendment rights
to due process and jury trial.
3™ Issue or Point Presented for Review
The 2™ trial of Appellant's charges of aggravated
perjury subjected him to double jeopardy, when the court in
the 1“ trial had instruct the jury that the acts charged against
Appellant in the indictment were material, thereby causing a
deadlocked jury which the court discharged without
“manifest necessity.”
*y Point Presented for Revie
There was no probable cause for Appellant's
indictment, which should have been quashed or dismissed
upon Appellart’s several pre-trial and trial motions.
5" Issue or Point Presented for Review
60
There is no evidence or insufficient evidence (1) that
either Appellant's acts charged in the indictment was false or
actionable, (2) that Appellant intended to deceive the court of
appeals when he verified two statements charged in the
indictment; or (3) that either of the two statements charged in
the indictment was material to or could have affected the
course or outcome of the appellate proceedings.
6" Issue or Point Presented for Review
Appellant's Motion for New Trial should have been
granted because of newly discovered evidence, perjured,
tainted or unreliable testimony of an 11 year old child, lack of
a voluntary guilty plea, breach of the plea agreement,
Appellant's retraction of his plea bargain agreementand in the
interests of justice.
1" Issue or Point Presented for Review
(Restated)
Appellant's appeal is not limited by Rule 25.2(b)(3)(A),
(B) or (C), Texas Rules of Appellate Procedure, even though
Appellant pled guilty pursuant to a plea bargain agreement,
because the punishment assessed exceed the punishment . . . agreed
to by the appellant; the judgment is void or voidable for other
material defects; the requirement that Appellant must have
obtained the trial court’s permission to appeal is void and
unenforceable for vagueness and lack of adequate standards;
and the opinion in Young v. State, rendered by the Texas Court
of Criminal Appeals in January 5, 2000.
61
Statement and Argument
in Support of 1" Point
A. Pre-Trial and Trial Proceedings
After a jury had been impaneled and 4 days of trial
charges of aggravated perjury, Appellant pled guilty to
misdemeanor perjury, pursuant to a plea bargain agreement
(CR 033). Part of the plea agreement forced Appellant to
forfeit his Texas law license, which he had held without
blemish for 44 years (CR 033, RR 3/10/99: 59, II. 2-4). The
indictment had arisen out of a child custody case in which
Appellant had represented a widowed mother of two little
girls in defense of a suit that sought appointment as their sole
managing conservator, filed in the name of an aged, ill,
Oklahoma paternal grandmother (Supplemental exhibit
Volume ”, State’s Exhibit No. 1, Ex. A [7 pages] & Ex. W [4
pages].
Immediately before Appellant's plea, the trial court
had ruled (RR 3/11/99: 12, II. 19-24), that Appellant's client's
oldest child, an 11 year old, would be allowed to testify before
the jury. The child was living with the Oklahoma family,
which had brought her from Oklahoma to court. The court
allowed her to testify to unsubstantiated sexual abuse by her
half-brother, and in connection with the unsubstantiated
1. Hereinafter, SEV. The volume purports to be a copy
of State Exhibit #1 and State Exhibit #2.
62
sexual abuse to testify that Appellant had told her to change the
story... tolie...about what her half-brother had done to her (RR
3/10/99: 166, II. 21-25; 167, II 1-16; RR 167, I. 17-25; 170, Il. 2-
6) in the civil custody case. The evidence, even if true, was
remote. The child said the alleged encounter had occurred
before Christmas of 1996 (RR 3/10/99: 174, II. 15-22.'° Even
according to the child’s confused and questionable testimony,
the alleged events would have occurred more than 2 years
prior to trial (RR 174, II. 15-22; 191, I. 12-25; 192, II. 1-12).
The child’s testimony raised extraneous offenses; was
immaterial and irrelevant to the State’s charges; could not
have been relevant to rebut Appellant's testimony because he
had not opened the door to character evidence; and it was so
emotionally charged that any probative value it may have had
was overwhelmingly out-weighted by its adverse effect upon
the jury. The child was also a surprise witness. The State had
not listed the child as a witness in Appellant's 1* trial of the
State’s charges(CR Supp.#2, 042), and it had not given
Appellant adequate notice in the 2™ trial to prepare an
adequate response to the child’s testimony in violation of pre-
trial orders (Notice required: CR 1-120; State’s witnesses: CR
1-123, Motion in Limine: CR1-130, CR 1-133; Extraneous
offenses: CR 1-134, CR 1-137).
2. Appellant was indicted July 11, 1996 (CR Supp. 001),
and the 2" trial started March 8, 1999.
63
Before the 2™ trial started, Appellant had objected to
the State’s proposed reference in opening statements to
alleged, unsubstantiated sexual abuse of Appellant's client's
children in the family law case (RR 3/9/99: 4, II. 13-25; 9, II.
11-14; 10, Il. 18-23; 12, II. 20-25; 13, Il. 1-18; 14, I. 3-7; 14, II. 13-
16; 17, I. 16-24; 18, II. 1-24; 20, II. 3-6; 21, II. 12-16). The court
sustained Appellant's objections, but reserved its ruling on
admissibility of the evidence (RR 3/9/99: 26, II. 21-22; 27. I. 1;
CR 007 [3-11-99 docket entry]). At the conclusion of the trial,
the State tendered the child to testify after it had rested its case
and Appellant was about to rest his. Appellant submitted
vigorous oral and written objection, which the trial court
overruled (CR Supp. #2, 008-013; CR 007 [Court's 3/11/99
docket entry]; RR 3/11/99, 11, II. 11-25; 12, Ii. 1-25).
B. Plea Bargain, Guilty Plea and Judgment
A Plea Bargain Agreement was signed and agreed to by
Appellant on March 11, 1999, and approved by Hon. Robert
Dohoney, Retired (CR 033). It provides that Appellant was to
have testified, but Appellant did not testify at the plea hearing
(RR, Plea of Guilty, 1/11/99). The agreement, as signed,
contains no “v ” on the line which recites, confinement in [State
Jail] [County Jail], and it reflects agreement that there was to
have been -0- days as a condition of Probation (CR 033). The
written judgment signed on March 12, 1999, by Judge Entz
does not conform to the plea bargain agreement signed by
Appellanton March 11". Among other material discrepancies
is the court's enhancement of punishment. The judgment
States that Appellant's punishment is assessed . . . at a fine of
64
$300.00 and 1 (one) year confinement in the Dallas County jail (CR
034; emphasis added).
Judge Dohoney had presided during the trial, but on
March 11" he did not sign a judgment. A written judgment,
recorded in volume 404, page 23, of the court records, was not
signed until March 12, 1999, and it bears the signature of Hon.
Harold Entz (CR 034), who had not tried the case or engaged
in the plea bargain proceedings. Furthermore, a document
entitled, Conditions of Community Supervision, which is
attached to and made part of the judgment, also was signed
by Hon. Harold Entz, although he had recused himself from
the case. Not only is the attachment signed by a recused jurist,
it shows to have been signed by him on March 11, 1999, when
he had not presided over the case, had not been in attendance
at and had not participated in the plea bargain proceedings.
Appellant respectfully submits that the discrepancy in
his motion filed on behalf of his client on June 14, 1996, for
leave to file a mandmus proceeding makes him no more
subject to a charge of perjury than discrepancies of record in
the trial court at bar. Hon. Harold Entz’s signature appears on
an official document, which misrepresents the date upon
which it was signed, and the signature, itself, is without
authority, because Judge Entz had been recused and had not
presided over trial of the case. Surely the impact of a recused
judge, who had not presided over a trial, signing a final
judgment in a criminal case could be far more harmful than
Appellant's mischaracterization to this Honorable Court of a
65
document he had been led to believe had been signed by a
trial judge. Appellant's efforts on behalf of a client were un-
rewarded and uncompensated. Because of the ineffectiveness
of the document used before this court, it was useless and
irrelevant. On the other hand, Judge Entz’s impact on the
validity and enforceability of the judgment in the case at bar
can be far-reaching.
Lawyers and judges make innocent mistakes in courts
all the time, and as in the case at bar the rules are versatile
enough to accommodate innocent, unintentional mistakes.
When lawyers and judges do err, however, they are not
charged, indicted and subjected to criminal prosecution for
aggravated perjury and stripped of their law licenses and
livelihood, particularly when the error is traceable to an
opposing counsel's failure to communicate.
Judge Entz had not tried the case. After he declared a
mistrial and discharged the jury in the 1* trial, he recused
himself from the case (CR 007). Before he recused himself,
however, without prior notice to Appellant, he granted the
State’s motion to dismiss the indictment upon which the 1*
trial had been based (CR 111). Then the State obtained a re-
indictment of the same charge from another grand jury,
without giving Appellant prior notice or an opportunity to
appear before the 2™ grand jury (CR 002). The 2™ indictment
also contains different terms from the 1* indictment.
66
As part of the appellate record at bar, Appellant
requested the district clerk to include a copy of an order of the
Judge of the 1“ Administrative District appointing Judge
Dohoney to replace Judge Entz as the trial judge (CR 75 [1*
two items], items 3 [p & q] and items 4 [a & b], but Appellant
was told that such an order could not be found, and therefore,
as far as the trial record is concerned, there is no
Administrative Judge’s order appointing Judge Dohoney, as
required by Rule 18a(c), Texas Rules of Civil Procedure.
C. Post-Judgment Proceedings
After a judgment was signed on March 12, 1999, and
he had bowed to his criminal counsel's urgent
recommendation to enter into a plea bargain, Appellant
recognized the enormity and devastating consequences of his
act, and he filed a motion to retract his plea bargain agreement
(CR 038-041). Because of surprise and lack of time to prepare
a defense, when mixed with stress and pressure to proceed
with a jury under the circumstances, Appellant's plea truly
had not been voluntary. Newly discovered evidence
presented at the hearing of his motion for new trial
overwhelmingly proved that testimony of the 11 year old
child was false, contrived and fabricated by the Oklahoma
paternal family.
Furthermore, Appellant had not been disciplined by
the State Bar of Texas to have caused loss of his license to
practice law. In fact, there is uncontradicted evidence in the
67
record that the State Bar found no grounds to discipline
Appellant (CR 038-041).
Appellant's motion to withdraw his guilty plea was
denied (CR 054). Appellant filed a motion for new trial (CR
049), supported by affidavits of the child’s mother (CR 042-
048) and Appellant's former legal assistant (CR 056-060) that
directly contradict the child’s fabrications. Additional,
impartial, 3" party evidence produced upon the new trial
motion (Motion or New Trial Hearing, RR5/24/99) affirmed the
mother’s and Appellant's secretary's affidavits. Appellant
submits that the trial court committed reversible error in
ruling that the 11 year old child's testimony was admissible.
Texas Rules of Evidence Rule 404(b); see also, Hines v. State, 571
S.W.2d 322 (Tex.Crim. App. 1978); Cameron v. State, 530S.W.2d
841 (Tex.Crim.App. 1975); Alvarez v. State, 511 S.W.2d 493
(Tex.Crim.App. 1974); Haft v. State, 416 S.W.2d 824
(Tex.Crim.App. 1967). The trial court committed reversible
error in denying Appellant's new trial motion.
The following random excerpts of witnesses’ testimony
at Appellant's Motion for New Trial Hearing, show the
deceptive and contrived nature of the evidence that the jury
would have heard through the child.
Barry Coakley, Ph.D.:
1. Appointed by the trial court to do an
evaluation of the child (RR 45, II. 6-8);
r Found no proof of sexual abuse (RR 71, II. 5-9);
68
Child never said anything about Appellant
asking her to lie or offering her money to lie
(RR 71, I. 10-14, 22-25; 72, I. 2, 11-25, 73, 74, I.
17-21).
Justin Ezchoa
1.
tN
Employ, ed by Dallas County Court Services to
conduct social studies of families engaged in
custody disputes (RR 107, Il. 16-19));
Talked with the child, K.C. (RR 108, II. 9 -11);
The child never mentioned being offered
money by Appellant or playing games in
Appellant's office with chairs, to get her to
testify in a particular way (RR 109, II. 1-14);
Ezcoha concluded that the child’s report of
sexual abuse was untrue (RR 109, I. 25; 110, I.
1-2);
The child's stories were conflicting (RR 110, I.
1-2);
Carol Ann Wilson
Z:
ho
An attorney specializing in Family Law (RR 66,
I. 10), who had assisted Appellant in the
custody case;
Never met with the child in Appellant's office
(RR 80, I. 19-23);
Never witnessed an offer by Appellant to pay
A.C. $20 to testify in a certain way (RR 80, I.
24-25; 81, II. 1-5) nor witnessed Appellant and
69
K.C. playing with chairs in Appellant's office
(RR 81, I. 7-11) nor witnessed Appellant ask
K.C. to sign a paper (RR 81, II. 12-15).
Paula Marie Crank
a
2.
a
3.
Ul
NS
The child’s mother (RR 92, II. 24-25; 93, II. 1-2);
The child was in Appellant's office only 1 time
(RR 94, II. 11-13);
The child was never out of mother’s presence
while in Appellant's office (RR 95, II. 4-6);
Appellant never offered money to the child to
testify (RR 95, II. 7-10);
No role playing with chairs ever took place
with the child in Appellant's office (RR 95, IZ.
11-13);
Appellant never asked the child to sign a piece
of paper (RR 95, II. 14-16);
After her father’s death and the child started
visiting the paternal family in Oklahoma, she
changed drastically in school and personal
appearance (RR 96, II. 9-24);
After the child started visiting with her
paternal family in Oklahoma, she began to lie
about things (RR 98, II. 1-25; 99, II. 1-9). (See
also testimony of her public school teachers,
Peggy Joyce Williams and Cynthia Forbes. (RR
49-60).
Paul R. Shunatona
70
1. Practicing attorney (RR 114, II. 9-22);
Represents Katherine Crank, the paternal
grandmother (RR 114, II. 15-20);
nN
3. Represents Katherine crank, the paternal
grandmother (RR 114, II. 15-20);
4. Admitted under oath that there was no finding of
sexual abuse in any court, not even in tribal court
(RR 118, Il. 6-11);
3 Admitted that he does not know of any physical
evidence that has come into [his] possession that
would indicate that Katrina Crank was sexually
abused (RR 119, I. 18-21);
6. Admitted that in tribal court Shunatona had
testified that sexual abuse had never been
proven (RR 119, II. 22-25).
After an en camera inspection of Texas Department of
Protective and Regulatory Services records, the trial court also
stated that as late as September 30, 1996, there is no evidence
that sexual abuse had occurred (RR 105, I]. 18-25; 106, I. 1-4).
The trial court denied Appellant's motion for new trial,
and Appellant filed a motion for leave to appeal (CR 063-066),
which was granted as to those matters that have been filed in
writing before the time of the plea (RR, Motion for New Trial
Hearing, 123, Il. 24-25; 124, II. 1-2). Thereafter Appellant gave
timely notice of appeal (CR 068).
D. Plea Bargain Agreement and Judgment
71
Must Be Compatible
Rule 25.02, Tex.R.App.P., provides that a criminal
defendant's right of appeal is limited if judgment is rendered on
[a] plea of guilty... [if] the punishment assessed did not exceed the
punishment... agreed to by the defendant (emphasis added).
Art. 44.02, C.C.P., contains identical language. The legislature
appears to confirm that an agreement is synonymous with the
word, contract, and if it is breached by the State or the court,
which is required to approve it, the defendant's door to an
appeal, not limited to jurisdictional or structural errors, is
opened. Since punishment invoked in the judgment in the
case at bar exceeds that to which Appellant agreed in writing,
his plea bargain agreement is no bar to an appeal. On the
contrary, breach of the plea bargain agreement is material and
an independent ground for reversal of the trial court
judgment. Ervin v. State, 1999 WI. 10277 (Tex.Crim. App. 1999).
Without regard to Appellant's appellate rights arising
out of breach of the plea bargain agreement, Helmis v. State, 484
S.W.2d 924, 927 (Tex. Cr. App. 1972) has been overruled. In an
opinion delivered on January 5, 2000, by the Texas Court of
Criminal Appeals in Young v. State, all question of a
defendant's appellate limitations have been resolved, and now
he is permitted unlimited appeal, since it has followed a guilty
plea given under a plea bargain agreement. Appellant
respectfully submits that his guilty plea under a plea bargain
is not a waiver of any rights on appeal and that he is not
barred from raising all issues he might have raised had there
been no guilty plea and plea bargain agreement.
72
There are additional, independent reasons to ignore
Rule 25.02%b)(3), Tex.R.Civ.P. , and Art. 44.02, C.C.P., and
reverse the trial court judgment. The judgment at bar is
signed by a judge who had recused himself and who had not
presided over any of the trial proceedings. Rule 18a(c),
Tex.R.Civ.P., provides that [i] f the judge recuses himself, he shall
enter an order of recusal and request the presiding judge of the
administrative judicial district to assign another judge to sit, and
shall make no further orders and shall take no further action in the
case except for good cause shown in the order in which such action
is taken.
Judge Entz recused himself after the 1” trial of
Appellant's case, but he did not enter an order of recusal or
request the presiding judge of the 1“ Administrative District
to replace him. Without apparent power or authority, he
appointed Hon. Robert G. Dohoney, Retired, to preside over
the 2™ trial (CR 007). Judge Dohoney was notan elected judge
nor was he the sitting judge of another district court, and there
is nothing in the record which reports an order of the 1"
Administrative Judicial District appointing him to try the
instant case (CR 074-076).
Judge Dohoney had no jurisdiction to preside ata trial
of Appellant's case, because he was not duly and properly
appointed according to the constitution and laws of the State
of Texas, and all of his actions and rulings were void and a
nullity. Judge Entz’s signature on the final judgment voids
that instrument, ab initio. The error is compounded because of
73
his recusal and failure to preside over trial. Sharkey v. State, 994
S.W.2d 417 (Tex.App. Texarkana 1999, no pet.); Eubanks v.
State, 1999 WL 976163 (Tex. App. Texarkana 1999, no pet.); Fry
v. Tucker, 202 S.W.2d 218, 221 (Tex. 1947); Buckholts ISD, et ai.
V. Glaser, 632 S.W.2d 146, 148 (Tex. 1982). An order of a
constitutionally disqualified judge is “absolutely void,” “a
nullity.” Templeton v. Giddings, 12 S.W. 851 (Tex. 1889);
Stephenson v. Kirkhyam, 297 S.W. 265, 267 (Tex.Civ.App. San
Antonio 1927, no writ).
In light of the Young v. State, supra, Appellant assumes
that it was unnecessary for him to obtain the trial court's
permission to appeal. However, Appellant respectfully
submits that the statutory provision requiring a defendant to
obtain a judge’s permission to appeal is unconstitutional,
because there are no definable, statutory guidelines to assist a
judge in a decision. A judge is free to act subjectively,
arbitrarily and capriciously in a grant or denial of permission
to appeal. See City of Mesquite v. Alladin’s Castle, Inc., 455 U.S.
283, 290, 102 S.Ct. 1070, 1074, 71 L.Ed. 152 (citing Marbury v.
Madison, 5 U.S. (1 Cranch) 137, 163, for the proposition that we
‘are a government of laws, and not of men’)
Conclusion of 1" Issue
Appellant respectfully submits:
1. Although he pled guilty, he did so under a plea
bargain agreement, and under the holding of Young v.
State, supra, that he be granted the right to appeal any
74
issues he might have raised had he not entered a guilty
plea, without regard to whether or not they are
jurisdictional or structural;
N
The judgment should be reversed and the indictment
quashed, because (a) Hon. Robert Dohney did not
have jurisdiction to conduct a trial; (b) punishment
contained in the judgment exceeds the punishment to
which Appellant agreed; (c) it was signed by Hon.
Harold Entz, who had recused himself and had not
presided at trial.
2™ Issue or Point Presented for Review
(Restated)
This appeal charges jurisdictional and structural
defects, the substance of which were raised by written pretrial
and trial motions, which questioned probability of cause for
the indictment, constitutionality of §37.03 and §37.04, Texas
Penal Code, because under the holding of United States v.
Gaudin, 515 U.S. 506, 115S.Ct. 2310, 132 L.Ed.2d 444 (1995), the
sections violate Appellant's 5" , 6", and 14" Amendment
rights to due process and jury trial.
3" Issue or Point Presented for Review
(Restated)
The 2™ trial of Appellant's charges of aggravated
perjury subjected him to double jeopardy, when the court in
75
the 1“ trial had instructed the jury that the acts charged
against Appellant in the indictment were material, thereby
causing a deadlocked jury which the court discharged without
“manifest necessity.”
4" Issue or Point Presented for Review
(Restated)
There was no probable cause for Appellant's
indictment, which should have been quashed or dismissed
upon Appeilant’s several pretrial and trial motions.
Statement and Argument
of 24, 3™ and 4" Points
The indictment charges (CR 002) that in a document
entitled VERIFICATION (sic) Appellant made a false statement
under oath and swore to the truth of a false statement
previously made with intent to deceive and with knowledge
of the statement’s meaning. It further charges that the
document was attached to and incorporated in a MOTION FOR
LEAVE TO FILE A PETITION FOR WRIT OF MANDAMUS
AND PETITION OF PROHIBITION WITH LEGAL
AUTHORITIES (sic). The indictment then defines the false
statement as follows: to wit, that the allegations of fact contained
in these proceedings are true and correct. The indictment does
not define the phrase, allegations of fact nor the phrase,
these proceedings (CR 002). Presumably it charges that the
76
allegations of fact in these proceedings are not true and
correct, but the State offered no proof of such charges.
The text of the indictment switches, completely (CR
002) from the “document” it refers to as a verification to the
“said motion” which presumably means the motion for leave
to file a petition for writ of mandamus. In a non sequitur it
charges that Appellant's argument that the mischaracterized
“order” does not specifically instruct peace officers of their duty in
the event they take the children into possession, is a false fact. The
quoted phrase, which obviously is Appellant's interpretation
of the mischaracterized order, does not appear in the
VERIFICATION (supra).
The other false “statement” with which Appellant is
charged with having made under oath, with knowledge of its
meaning and with intent to deceive is in said order. However,
said order does not appear in the verification, either. Thus, it
the State had the burden to prove that the verification is false
as to said order, which undoubtedly refers to the document
Appellant mistakenly submitted to the court as the 301"
District Court order of June 7, 1996.
The indictment chargesthat Appellant represented
that said order reads: “deliver the children safely [to this Court
during regular court orders (sic) [Katrina Crank instanter].”
Appellant respectfully submits that the quote is true, not false.
Appellant was referring to the document he was using in the
appellate proceeding. It could only have been that “order,”
77
but an order not entered of record (and there was no order of
record before the court”, one only attached to an appellant's
brief may not be considered. Banowsky v. State Farm Ins. Co.,
876 S.W.2d 509 (Tex.App. Amarillo 1994, no writ). Upon
reflection, Appellant has concluded that the reason his
application for leave to file a mandamus proceeding was his
failure to attach a certified copy of an order to his pleadings.
The indictment is completely silent as to the terms of
and does not even refer to an actual order signed on June 7,
1996, by the 301* District Court. Significant also is the
indictment's failure to disclose that the VERIFICATION was
Exhibit “U,” one of a number of exhibits submitted to the
appellate court in an Appendix of Exhibits. Appellant had fully
disclosed to this Honorable Court that the documents in the
Appendix of Exhibits were true only upon information and
belief (SEV. Ex. “U”). So this Honorable Court is not misled
by the State’s selective, convoluted interpretation of the oath
signed by Appellant, he quotes it in full (SEV. P. 9):
VERIFICATION
STATE OF TEXAS §
COUNTY OF DALLAS §
Before me, the undersigned authority, on
this day personally appeared Jay S. Fichtner, who,
being first by me duly sworn, upon oath deposes
and says that he is the attorney for Paula M. Crank,
78
Relator; that he has authority to make this affidavit
for and in her behalf; that the exhibits attached to
this motion and contained in the “Appendix of
Exhibits” which are attached and incorporated in
these proceedings are true and correct to the best
information and beliefofaffiant; that the allegations
of fact contained in these proceedings are true and
correct (Emphasis added).
/s/ Jay S. Fichtner
STATE OF TEXAS §
COUNTY OF DALLAS §
SUBSCRIBED AND SWORN TO before
me, a Notary Public in and for the State of Texas, |
on this 14" day of June, 1996, to certify which
witness my hand and official seal. /
/s/ Anita H. Martinsen
Notary Public, State of Texas
The exhibits in the Appendix of Exhibits were only
verified upon information and belief. Because the motion for
leave to file mandamus proceeding was denied, under
appellate court’s rules and procedures then applicable, the
Appendix of Exiuibits was not filed (SEV, appellate docket sheet,
[3 un-numbered pages in the copy provided to Appellant by |
the court reporter]).
79
Appellant filed a number of motions before trial to
obtain dismissal of the indictment, but they were denied:
Motion to Dismiss Indictment as being Unconstitutional (CR 023-
028); Defendant's Motion to Set Aside Indictment (CR 085-087);
Addendum to Motions to Dismiss Indictments (CR 108-110);
Motion to Dismiss Indictment Because of Double Jeopardy and Lack
of Materiality (CR Supp. #2 @ 34-35); Motion to Determine
Materiality and to Quash or Dismiss Indictment (CR Supp. #2 @
36-38).
There is no evidence of a statement previously made or
that a statement previously made was false, as charged in the
indictment. The State has the burden of proving beyond a
reasonable doubt each of the elements of a crime.
It is a fundamental principle of law that a conditional
verification or affidavit will not support a charge of perjury.
Graham v. McCarty, 69 Tex. 323, 7 S.W. 342; Burke v. Satterfield,
925 S.W.2d 950, 955 (Tex. 1975). Unless authorized by statute, an
affidavit is insufficient unless the allegations therein are direct and
unequivocal and perjury can be assigned upon it (P. 954). See also,
Davis _v. California Shoes, Inc., 612 S.W.2d 703, 704
(Tex.Civ.App. Dallas 1981, no writ).
Furthermore, acting as an attorney on behalf of his
client, Appellant's statements about the mistaken order either
were true as a repetition of its language or it was Appellant's
legal interpretdtion of the meaning and impact of the
language. The facts in Schoenfeld v. State, 56 Tex. Crim. 103,
80
119S.W. 101, are similar in many respects to the facts at bar,
because the opinion involves interpretation of a written
document. The court held (p.108), We think the rule ts well
settled and correctly settled that... where the statement wltich is
the basts of the accusation is a matter of construction, or a deduction
from given facts, the fact that it is erroneous, or is not a correct
construction, or 1s not a logical deduction from all the facts cannot
constitute it perjury or false swearing ... Thus a misconception or
mistake in swearing to the construction of a written instrument ts
not sufficient to warrant a conviction of perjury... perjury cannot
be committed in testimony to the legal construction of a written
instrument. See also, State v. Eversole, 889 S.W.2d 418
(Tex. App. Houston [14" dist.] 1995, review denied); Brasher v.
State, 715 S.W.2d 827, 831 (Tex.App. Houston [14" dist.] 1986,
no petition).
Many authorities have declared that an affidavit must
be disregarded unless the content is direct and unequivocal
and perjury can be assigned upon it. Brownlee v. Brownlee, 665
S.W.2d 111 (Tex. 1984); Burke v. Satterfield, 525 S.W.2d 950
(Tex. 1975); Savage v. Herrin Transfer & Warehouse Co., 219
S.W.2d 101 (Tex.Civ.App. Galveston 1949, no writ); Bledsoe v.
Mack, 57 S.W.2d 869 (Tex.Civ.App. Galveston 1933, no writ).
In an early supreme court decision, which is as applicable
today as it was in 1891, Chief Justice Slayton wrote, the general
statement under oath that “the allegations are true and correct to the
best of his knowledge and belief” is too general to constitute
compliance with the law... the affidavit should show, substantially,
8]
that the party making it has knowledge himself of the facts. Spinks
v. Matthews, 80 Tex. 373, 374, 12 S.W. 1101.
The quoted phrase, the allegations of fact contained in
these proceedings are true and correct clearly refers to the
proceedings before the court of appeals, but the indictment
does not charge Appellant with a misstatement relating to the
court of appeals proceedings. It only refers to events that
allegedly had occurred in the trial court. The indictment does
not charge that there was a factual error in the appellate court
proceedings, and there is no evidence or insufficient evidence
that Appellant made a factual misstatement about the
proceedings before this Honorable Court. If the Appellant
had done so, this court would have been the first to know, it
could have taken actions to discipline Appellant, which it did
not do.
Through pretrial motions, supra, Appellant brou ght to
the attention of the trial court fundamental flaws in the
indictment and sought to have it dismissed as a matter of law.
The trial court denied all motions in which Appellant tried to
persuade it that Appellant's verification upon information and
belief will not support a charge of perjury; demonstrated that
there is insufficient evidence that Appellant could have
formed an intent to deceive, since the only evidence is that
Shunatona had possession of the original, signed copy of
Judge O’Connell’s June 7, 1996, order (RR 3/ 10/99, 6 II. 2-5 [I
signed the order and gave it to Paul Shunatona]; 7, I. 5-8; 7, IL. 13-
18; II. 10-11). Judge O’ Donnell also testified that the order was
82
signed past 4 or 5 o'clock... we were closing the courthouse (RR
3/10/99, 6, I. 20-22). It must be remembered that the triai
court out of which this appeal is made had the benefit of
Shunatona’s and Judge O’ Donnell’s sworn testimony in the 1*
trial.
The motions argued that there is insufficient evidence
beyond a reasonable doubt that Appellant's verification or the
document Appellant believed to have been a trial court order
could have affected the outcome of the appellate proceedings
or trial proceedings. The motions also argued that the trial
court's instruction on materiality in the 1* trial as a matter of
law violated Appellant's 5", 6" and 14" Amendment rights to
due process and trial by jury of the material elements of
aggravated perjury and had caused Appellant twice to be put
in jeopardy of punishment for the same offense. The trial
court erred in failing to dismiss or quash the indictment.
Without regard to evidence or lack thereof, the trial
court erred in failing to dismiss or quash the indictment
because it is founded upon an unconstitutional statute.
Appellant was charged with aggravated perjury under §37.03
and §37.04, Texas Penal Code. The statute legislates that the
issue Of materiality, which is an essential element of the
offense, be determined by the court as a matter of law, not a
jury. In reliance upon the language of the statute, one or more
of Appellant's motions asked the court to conduct a pretrial
hearing to determine materiality, which the court refused to
do.
83
However, in the 1* trial in 1997, the court instructed
the jury on materiality as a matter of law, which Appellant
submits led to a hung jury. The instructions was materially
erroneous. It did not follow the mandate of Sec. 37.04(a) and
did not ask the jury to return a verdict based upon the acts
charged in the indictment, which if most liberally interpreted
related only to the verification of the “order” Appellant used
in his motion for leave to file a mandamus proceeding.
However, the trial court submitted the entire packet of
documents to the jury for consideration: the document entitled
‘Motion for leave to File a Petition for Writ of Mandamus and
Petition for Writ of Prohibition with Legal Authorities’ as a matter
of law was of such a nature and content that it had a direct and
immediate connection with a material fact or facts as to give weight
tot he sworn content of the document presented to members of the 5"
District Court of Appeals . . . Close of court finding with regard to
this particular issue (CR 142, II. 8-18). The instruction is facially
erroneous if for no other reason than it fails to use the
definition of materiality contained in the statute.
An indictment should be dismissed or quashed for lack
of probable cause, when there is a substantive defect. State v.
Salinas, 1996 WI, 477008 (Tex. App. Houston 1* dist., 1996; State
v. Eversole, 889 S.W.2d 418 (Tex.App. Houston 14" dist. 1994,
review refused). Among substantive defects inherent in the
instant case is a legislatively mandated requirement of the
aggravated perjury statute,§37.03 and §37.04, Texas Penal Code,
that materiality be determined by the court as a questions of
law. Acting in accordance with the code sections, Appellant
84
tried to obtain a pretrial hearing of materiality and tried to get
the indictment dismissed or quashed. The trial court denied
the motions, waited until the 1“ jury trial was completed;
announced that the Appellant's acts were material; and
‘instructed the jury as a matter of law that the act was material
(See pretrial motions, above; see, also, CR 139-151).
Appellant had relied upon the plain wording of Texas
Penal Code §37.03 and §37.04 and the 1“ opinion in State v.
Rosenbaum, 910 S.W.2d 934 (Tex.Crim.App. 1995). Rosenbaum
does not dispel the principle that under Texas law materiality
is an element of the crime to be determined by the trial court
without intervention of ajury. It merely holds that in making
its determination a court may await presentation of all the
evidence. It does not speak to the constitutionality of §37.04,
which continues to require that the essential element of
materiality be determined by the court as a matter of law and
thus precludes a jury from passing upon the issue.
The court in Rosenbaum should have been aware of the
Supreme Court's decision in United States v. Gaudin, 515 U.S.
506, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995), because it was
published in May or June 1995, whereas the Rosenbaum
decision did not come down until December 1995, unless the
parties did not bring the Supreme Court decision to the
attention of the Texas Court of Criminal Appeals. If proper
procedure had been followed, Appellant submits that the
Texas Court of Criminal Appeals would have held the
aggravated perjury statute unconstitutional.
85
In United States v. Gaudin, 515 U.S. 506, 115 Sup.Ct.
2310, 2314, 132 L.Ed.2d 444, Justice Scalia, speaking for the
Supreme Court, announced that a defendant has a
constitutional right under the 5" and 6" Amendments to the
U.S. Constitution to have all elements of a crime submitted to
a jury. Materiality is one of the elements of aggravated
perjury, the crime for which Appellant was indicted and tried.
Through the provisions of the 14" Amendment, the states are
subject to the due process provisions of the 5th Amendment.
Duncan v. Louisiana, 391 U.S. 145, 159, 88 S.Ct. 1444, 1447, 20
L.Ed.2d 491 (1968); Benton v. Maryland, 395 U.S. 784, 89 S.Ct.
2056 (1969); U. S. Balsys, 524 U.S. 666, 118 S.Ct. 2218 (1998).
The Supreme Court decision in United States v. Gaudin,
holds that because materiality of a false statement is an
essential element of the crime of perjury, it must be submitted
to a jury. See also, Waldron v. United States, 516 U.S. 928, 116
S.Ct. 333, 133 L.Ed.2d 233 (1995).
Appellant had moved the trial court in the 1* trial to
dsmiss or quash the indictment on constitutional grounds,
among others. (See pre-trial motions listed above).§37.03 and
§37.04, Texas Penal Code, clearly are unconstitutional, because
they contradict and are in direct conflict with the Gaudin
opinion and the 5", 6™ and 14" Amendments to the U. S.
Constitution, and the trial court committed reversible error in
failing to dismiss the indictment.
86
To Appellant's knowledge no court of appeals or the
Texas Court of Criminal Appeals has yet to directly address
the impact upon §37.03 and §37.04 of the decision in Gaudin.
However obedience by all courts to the 5", 6" and 14"
Amendments to the U. S. Constitution being required,
Appellant respectfully submits that until the legislature
modifies the sections, they are unenforceable. As a mater of
fact, the opinion in Bonilla v. State, 933 S.W.2d 538, 543
(Tex. App. Houston [1™ dist.] 1996, no pet.) noted, We agree with
appellant that Gaudin implicates the constitutionality of section
37.04(c) of the Texas Penal code, but because the defensive issue
had been raised for the time in his motion for rehearing and [i] in
his points of error, appellant challenged only the sufficiency of the
evidence (p. 544), the court declined to review the issue. In a
concurring opinion Justice Cohen wrote (p. 544): ] agree with
appellant that Texas Penal Code Ann. §37.04(c) (Vernon 1994) is
unconstitutional for the reasons stated in United States v. Gaudin.
Appellant's right to protection from double jeopardy
was violated when the court in the 1 trial dismissed the jury.
There was not a manifest necessity to discharge the jury. It
allowed the State, without prior notice to Appellant, to obtain
an amended indictment from another grand jury. The State
had failed to introduce sufficient evidence of Appellant's
intent to deceive or that his verification would support a
charge of perjury. Further, the court's charge to the jury on
materiality was fatally defective.
—> ss
as Pee as ae!
87
It is long established that jeopardy may attach ina trial
thatends inconclusively or withouta verdict. Crist v. Bretz, 437
U.S. 28, 33, 98 S.Ct. 2156, 2159 (1978); see also, Arizona v.
Washington, 434 U.S. 497, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978).
The Federal rule that jeopardy attaches when a jury is
impaneled and sworn is applicable to the states by the 14"
Amendment. Discharge of the jury and dismissal of the first
case allowed the State to continue harassing Appelant by
obtaining another defective indictment, under the same facts,
under the same statute, without probable cause.
Conclusion of 2™, 3% and 4" Points
Appellant's mistaken use of a document he believed
was an order signed by a trial court cannot support perjury,
because Appellant never made an unqualified representation
to the appellate court that the document was a true and correct
copy of a trial court order and it was not certified by the
district clerk. Appellant's discussion of the terms of the
document was nota statement of fact but in the nature of legal
interpretation or argument, which will not supporta charge of
perjury.
Without regard to the foregoing, and without waiver,
Appellant submits that the Texas aggravated perjury statute
is unconstitutional, void and unenforceable and a 2™ trial of
Appellant on aggravated perjury charges after the trial court's
erroneous jury instruction in the 1* trial subjected Appellant
to double jeopardy in violation of the 5" and 14" Amendments
ee
88
to the U.S. Constitution. For all of the foregoing reasons, the
indictment should have been quashed or dismissed.
5th Issue or Point Present
for Review
(Restated)
There is no evidence or insufficient evidence (1) that
either Appellant's acts charged in the indictment were false or
actionable; (2) that Appellant intended to deceive the court of
appeals when he verified two statements charged in the
indictment; or (3) that either of the two statements charged in
the indictment was material to or could have affected the
course or outcome of the appellate proceedings.
Statement and Argument of 5" Point
Appellant adopts and incorporates statements and
arguments made in previous issues and points in this brief.
§2.01, Texas Penal Code, provides:
All persons are presumed to be innocent and no person may
be convicted of an offense unless each element of the offense is
proved beyond a reasonable doubt. The fact that he has been...
indicted for... the offense gives rise to no inference of guilt at his
trial (emphasis added).
Art. 38.03, Texas Code of Criminal Procedure, prescribes:
89
The defendant in a criminal case is presumed to be innocent
until his guilt is established by legal evidence beyond a reasonable
doubt, and in case of reasonable doubt as to his guilt, he is entitled
to be acquitted.
Art. 1.15, Texas Code of Criminal Procedure, mandates
that in cases where the defendant elects to plead guilty toa
criminal offense, . . . it shall, (however) be necessary for the state
to introduce evidence into the record showing the guilt of the
defendant and said evidence shall be accep.ed by the court as the
basis for its judgment. In no event shall a person charged be
convicted upon his (guilty) plea without sufficient evidence to
support the same.
If there is no evidence or insufficient evidence to
support an essential element of a crime, fundamental error
exists, and the court may revievthe error in the interest of
justice. Carter v. State, 565 S.W.2d 468 (Tex.Crim. App. 1983).
To determine whether evidence is factually sufficient, an
appellate court must consider all the evidence without the prism
of ‘in the light most favorable to the prosecution,’ and it sets aside
the verdict only if it is so contrary to the overwhelming weight of the
evidence as to be clearly wrong and unjust. Clewis v. State, 922
S.W.2d 126 (Tex.Crim.App. 1996), quoting from Stone v. State,
823 S.W.2d 375, 381 (Pet. Ref'd). An appellate court shall
consider the legal sufficiency on constitutional grounds, as
well as the factual sufficiency of the evidence. Clewis, supra.)
90
Although a defendant does not have the burden of
showing “lack of evidence” to prevail upon grounds that the
evidence was insufficient, Appellant submits at bar that there
is such a dearth of credible, probative evidence of Appellant's
knowledge of hand-written changes made by the 301* court to
the proposed order given to him by opposing counsel that it
is tantamount to no evidence. There is no evidence or
insufficient evidence that Appellant had knowledge that the
document that had been handed to him by the opposing
lawyer did not conform to the original. Without knowledge,
he could not have formed the requisite intent to mislead or
deceive. Another way of phrasing it is to say that Appellant
truly did not know the meaning of the document he
mistakenly submitted to the court, and there is no evidence or
insufficient evidence that he knew the document he was using
had a meaning different form the original. The State had the
burden of presenting evidence beyond a reasonable doubt that
Appellant knew or understood the meaning of the document
he was using. It failed to do so.
Appellant thought that it was an order of the 301"
court which meant that it was unenforceable because of
contradictions and understood that if he could convince this
court that the submitted document was unenforceable, it
would instruct the judge of the 301“ Court to refrain from
enforcing the presented “order.” As is now known,
Appellant's understanding of the document was incorrect,
and even had he been successful before this Honorable Court,
an order to the trial court would have been meaningless.
9]
There is no evidence or insufficient evidence that on June 14,
1996, when he filed the mandamus proceeding issue,
Appellant was anything other than ignorant of the content
and meaning of the order signed on June 7, 1996.
Under oath Paul R. Shunatona, Appellant's opposing
counsel, admitted that he had prepared a draft of an order to
submit to the 301* Court on June 7, 1996. At the court's
discretion he handed a copy of the draft to Appellant. As he
engaged the judge at the bench to obtain his signature,
Appellant gathered his papers and left the courtroom.
Changes were made to the draft at the bench by the judge in
his own handwriting, who then returned the original, only
copy of the signed order to Shunatona. It was late ona Friday
afternoon. The beginning of a weekend, the afternoon of June
7, 1996. Appellant was not at the bench at any time. There is
no evidence that the signed order reached the clerk of the
court before June 14, 1996. The only evidence is that
Shunatona is the last person to have had possession of the
order bearing Judge O’Donnell’s original signature on June 7,
1996.
Shunatona admitted under oath that he had not
provided Appellant with a conformed copy of the June 7
order and at no time did Shunatona otherwise communicate
with Appellant relating to the order. Judge O’Donnell, who
appeared as a witness on Appellant's behalf, testified that
after he had rendered his order, it was not read aloud in court
(RR 3/10/99, 45 I. 11-22).
92
The State failed to present evidence of the chain of
possession of the order. Other than Judge O’Donnell’s
testimony that after he signed it, he handed it back to
Shunatona, there is no evidence that before June 14, 1996, it
was delivered to the clerk of the 301* Court or any other court
official. There is no evidence of when or by whom the order
was enrolled in the records of the 301* Court or the process or
length of time it took to enroll it. There is no probative
evidence that between June 7, 1996 and June 14, 1996, the
signed order would even have been available to Appellant,
if he had wanted to compare it with the copy handed to him
by Shunatona before the judge signed the original.
Furthermore, there is no evidence or insufficient
evidence, direct or circumstantial, of the extent to which the
mistaken “order” was material to this court. A statement is
material for purposes of §37.04, Texas Penal Code, if it could have
affected the course or outcome of the official proceeding. For a
statement to be material, it must be related to the decision making
process of the proceeding [and must have] a substantial potential
for obstructing justice. Mitchell v. State, 608 S.W.2d 228
(Tex.Crim.App. 1980). This court's record of cause No. 05-96-
00890-CV shows that Appellant's motion for leave to file a
petition for writ of mandamus was denied on June 14, 1996,
the same day it was filed (SEV, docket sheet [3 pages] and that
an order was signed by Justice Debora. G. Hankinson without
opinion or comment (SEV, Order).
93
The State did not call as a witness any member or legal
assistant of the 5" District Court of Appeals. There is not a
shred of probative evidence from the appellate court that
Appellant's information and belief representations were
material.
Conclusion of 5" Point
There is insufficient credible, probative evidence that
Appellant knew the meaning of the document he used as a
trial court order; that he intended to deceive this Honorable
Court; that his verification or presentation of a document as a
trial court order was material. There is no evidence that
between June 7, 1996, and June 14, 1996, a copy or the terms of
the order, as signed by Hon. Bob O'Donnell, were
communicated to Appellant.
6" Issue or Point
Presented for Review
(Restated)
Appellant Motion for New Trial should have been
granted because of newly discovered evidence, perjured,
tainted or unreliable testimony of an 11 year old child, lack of
a voluntary guilty plea, breach of the plea bargain agreement,
Appellant's retraction of his plea bargain agreementand in the
interest of justice.
Statement and Argument
94
of 6" Point
Appellant adopts and incorporates statements and
arguments made under previous issues or points.
The standard of review of a trial court's judgment
relating to a motion for new trial is abuse of discretion. State
v. Gonzalez, 855 S.W.2d 692 (Tex.Crim. App. 1993). Art. 40.001,
Code of Criminal Procedure, provides that a new trial shall be
granted where material evidence favorable to an accused has
been discovered since trial.
The Texas Court of Criminal Appeals opinion in State
v. Gonzales cites the opinion of this Honorable Court in the
same case for the proposition that a trial court has discretion
to grant a new trial in the interest of justice (694):
... the Court of appeals [5 District] held
Rule 30(b) [Texas Rules of Appellate Procedure]
did not provide an exclusive list for the granting of
a motion for new trial .. . The Court of Appeals,
citing Johnson v. Fourth Court of Appeals, 700
S.W.2d 916, 918 (Tex. 1985) and Champion Int'l
Corp. v. Twelfth Court of Appeals, 762 S.W.2d 898,
899 (1988) concluded that a trial judge may, in his
discretion, grant a new trial in the interest of
justice... For more than one hundred and twenty
years, our trial judges have had the discretion to
grant new trial in the interest of justice . . . [it] is
95
almost the only protection to the citizen against
illegal or oppressive verdicts of prejudice, careless
or ignorant juries, and we think that the District
Court should never hesitate to use that discretion
whenever the ends of justice have not been attained
by those verdicts.
Material evidence set forth in foregoing issues in this
brief demonstrate that the trial court abused its discretion in
failing to grant Appellant's motion for new trial. This
Honorable Court and the Texas Court of Criminal Appeals
approved a trial court's grant of a motion for new trial under
facts and circumstances much less compelling than those that
existat bar. Appellant's motion for new trial is extensive in its
content and scope, and many witnesses and evidence were
produced at the new trial hearing, as opposed to only one in
Gonzalez.
The party that complains of abuse of discretion has the
burden to bring forth a record showing such abuse. Simon v. York
Crane & Rigging Co., Inc., 739 S.W.2d 793, 795 (Tex. 1987).
Appellant respectfully submits that he has met the burden.
The record at bar is replete with error that warrants a new
trial. In the interests of justice the trial court's decision to deny
a new trial should be reversed.
Conclusion of 6" Point
96
The trial court abused its discretion in failing to grant
Appellant's motion for new trial, if not for the great number
of errors in the record, because Appellant has suffered great
harm. He has lost his right to practice law in the State of Texas
and the livelihood he has known since 1955. There is
insufficient evidence that Appellant was aware of the meaning
of the document presented on appeal as a trial court order;
there is insufficient evidence that his presentation of the
document as charged was false; there is insufficient evidence
of intent to deceive; and all the evidence supports the
proposition that there was not an unqualified swearing, but
only as to information an belief.
There is no specific list of errors required to support
grant of a motion for new trial, and the trial court should have
granted a new trial in the interests of justice, if for no other
reason.
CONCLUSION
Appellant, who was ignorant of the true content of an
order signed by the 301* District Court on June 7, 1996,
foolishly believed that ethics of the legal profession would
have required opposing counsel to inform him that the court
order, as signed, was different from the copy Appellant had
received. Actually, Shunatona did not even have to educate
Appellant. All he had to do was to send a copy of the signed
order to Appellant, but he intentionally suppressed the
changes made to his draft by Judge O’ Donnell, and there is no
Si
97
way of telling from the evidence he held the original order.
Appellant does not know to this very day.
Appellant has not been able to determine the forces
that have motivated prosecution of this convoluted case by the
District Attorney of a fellow lawyer. There is no evidence that
the appellant enjoyed financial or other gain from his action
on behalf of a poor client to retain her two children. A great
injustice was done when Appellant was forced to plead guilty
to a crime of which he is innocent, and to have lost his license
to practice law, was akin to a death knell for one who had
done nothing but follow the legal profession for his entire
working life. Embarrassment, shame and frustration are only
part of the pain, loss and heartbreak suffered by Appellant
and his family. Through this appeal, Appellant hopes to
obtain some vindication and reinstatement of his lawful place
in the legal community.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Appellant
prays that the judgment of the trial court be reversed; that all
charges be dismissed or quashed; in the alternative, that this
case be remanded for a new trial. Appellant further prays for
such special and general, legal and equitable relief to which he
is entitled under the law.
Ls/
Jay S. Fichtner
Suite 740, Quorum Place
14901 Quorum Drive
98
Dallas, Texas 75240-6793
Tel: 972-404-9991
Fax: 972-404-9994
Certificate of Service |
This is to certify that on the 7" day of February, 2000,
acopy of the foregoing was served upon the Criminal District
Attorney of Dallas County, Texas, buy depositing it postage
prepaid in the U.S. Postal Service, addressed to Hon. Bill Hill,
Frank Crowley Criminal Courts Building, 133 Harry Hines
Blvd., Dallas, Texas 75207.
/s/ ;
Jay S. Fichtner
99
Appendix No. 9
NO. 05-99-01053
IN THE COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
JAY SHELDON FICHTNER
V.
THE STATE OF TEXAS
ON APPEAL FROM THE 194™ JUDICIAL DISTRICT
COURT OF DALLAS COUNTY, TEXAS
TRIAL CAUSE NOS. F97-03659-KM AND F96-02329-UM
APPELLANT'S ORIGINAL BRIEF
ORAL ARGUMENT REQUESTED
Jay S. Fichtner
Suite 740, Quorum Place
14901 Quorum Drive
100
Dallas, Texas 75240-6793
TABLE OF CONTENTS
Re ae GE «cn 'o o-4 oa Sc Wek A dave ccécnesekd 1 )
IDENTITY OF PARTIES ........ 2.0. .cccccuccecceuces 12 |
|
IE GG osc sos bcbatesnsseedsdsacsvcres 14 |
Issues and Points Presented for Review ............... 16
1* Issue or Point Presented for Review .......... 16 |
2™ Issue or Point Presented for Review ......... 16
3" Issue or Point Presented for Review ......... 17
4" Issue or Point Presented for Review ......... 17
5" Issue or Point Presented for Review ......... 17
6" Issue or Point Presented for Review ......... 18
1* Issue or Point Presented for Review .......... 18
Statement and Argument in Support of 1*
DE AA cnn uweataer wend eec aus bie cure 19
Conclusion of 1° Tepe: .. occ cc cc ccccs 36
2™ Issue or Point Presented for Review ......... 37
3" Issue or Point Presented for Review ......... 37
101
4" Issue or Point Presented for Review .........
Statement and Argument
of 2™, 3" and 4" Points ..........
Conclusion of 2™, 3 and 4" Points ......
5th Issue or Point Present for Review
eS Cee re Pe eeeeeseeeeeesevescee se eaeoneeece ee 8 e 6
rr eSC eee eeresee eee aces eee ese € ee eee 6 6 Se
Conclusion of 5" Point .................
6" Issue or Point Presented for Review .........
Statement and Argument of 6" Point ....
Conclusion of 6" Point .................
er eer ne re ee
102
TABLE OF AUTHORITIES
TEXAS CASES
Alvarez v. State, 511 S.W.2d 493 (Tex.Crim. App. 1974)
(is 0S Oe FOWEAORSARENE IDE HAW REESE EEN EREW EER ODS SFO e< 16
Banowsky v. State Farm Ins. Co., 876 S.W.2d 509 (Tex.App.
PEPE ree Te Tee Teer eT eee ee 32, 36
Bledsoe v. Mack, 57 S.W.2d 869 (Tex.Civ.App. Galveston 1933,
ere ee ee ey Pres er Teer eee 37, 38
Bonilla v. State, 933 S.W.2d 538, 543 (Tex.App. Houston [1"
ek Pree er ree eer er rere 45, 49
Brasher v. State, 715 S.W.2d 827, 831 (Tex.App. Houston [14"
ee STE EET e eT CCT TT eee Te eee 37
Brownlee v. Brownlee, 665 S.W.2d 111 (Tex. 1984) ........ 37
Buckholts ISD, et al. V. Glaser, 632 S.W.2d 146, 148 (Tex. 19827
Burke v. Satterfield, 525 S.W.2d 950, 955 (Tex. 1975) ...... 36
Cameron v. State, 530 S.W.2d 841 (Tex.Crim.App. 1975)
103
Carter v. State, 565 S.W.2d 468 (Tex.Crim.App. 1983)
Champion Int'l Corp. v. Twelfth Court of Appeals, 762 S.W.2d 898,
Se ee ee re re rr ere 36, 57
Clewis v. State, 922 S.W.2d 126 (Tex.Crim.App. 1996)
Davis v. California Shoes, Inc., 612 S.W.2d 703, 704
(Tex.Civ.App. Dallas 1981, no writ) ............. 36, 37, 44
Ervin v. State, 1999 WI. 10277 (Tex.Crim.App. 1999)
eT UE TTT Te eT TTT eT eT TTC Tee eo Tec e 25
Eubanks v. State, 1999 WL 976163 (Tex.App. Texarkana 1999,
NE 6 hh de eeces dbs ee ues cee ee usaee ieee eds 27
Fry v. Tucker, 202 S.W.2d 218, 221 (Tex. 1947) ........... 27
Graham v. McCarty, 69 Tex. 323, 7S.W. 342 ............. 36
Haft v. State, 416 S.W.2d 824 (Tex.Crim.App. 1967) ...... 19
Helms v. State, 484 S.W.2d 924, 927 (Tex. Cr. App. 1972)
‘AIRSET SRE AAR ERO SUAS SANS RRORRD EOE E CER EES 25, 27
104
Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 918 (Tex.
BOUT cnccvscccsuugentveseeceesusee need eereeeeee 56
Mitchell v. State, 608 S.W.2d 228 (Tex.Crim.App. 1980)
POTTTITITTITTTe Tree er ee ee ee 53
Savage v. Herrin Transfer & Warehouse Co., 219 S.W.2d- 101
(Tex.Civ.App. Galveston 1949, no writ) ............... 37
Schoenfeld v. State, 56 Tex. Crim. 103, 119S.W. 101 ..... 36,
37
Sharkey v. State, 994 S.W.2d 417 (Tex. App. Texarkana 1999, no
GO) ccc vavivinvevonncebeesnkee eek eekes eevee 27
Simon v. York Crane & Rigging Co., Inc., 739 S.W.2d 793, 795
CRE TID bees cnc cncscnceenvssteddvepeeeaereeee 9, 57
Spinks v. Matthews, 80 Tex. 373, 374, 12S.W. 1101 ...... 38,
41
State v. Eversole, 889 S.W.2d 418 (Tex. App. Houston [14" dist.]
See TOUR GEE i. 6 once ceccesnsuneremeeeen 37, 50
State v. Gonzalez, 855 S.W.2d 692 (Tex.Crim.App. 1993)
State v. Rosenbaum, 910 S.W.2d 934 (Tex.Crim.App. 1995)
errr RRC OOS eee ebs cees kena e oe en eee eee ee ene
105
State v. Salinas, 1996 WI, 477008 (Tex.App. Houston 1* dist.,
eee yaa wee e reese ccc cceees 41
Stephenson v. Kirkhyam, 297 S.W. 265, 267 (Tex.Civ.App. San
SE EEC Ee ORE TTT a1, 2, 2
Stone v. State, 823 S.W.2d 375, 381 (Pet. Ref'd) ....... 49,53
Templeton v. Giddings, 12 S.W. 851 (Tex. 1889) .......... 27
Young v. State, 8S.W.3d 656 (Tex.Crim.App. 2000) ...... 8,
11,19
FEDERAL CASES
Arizona v. Washington, 434 U.S. 497, 98S.Ct. 824, 54 L.Ed.2d 717
106
Marbury v. Madison, 5 U.S. (1 Cranch) 137 .............. 45
U. S. Balsys, 524 U.S. 666, 118 S.Ct. 2218 (1998) .......... 44
United States v. Gaudin, 515 U.S. 506, 115 S.Ct. 2310, 132 L.Ed
Pein ocske es ees ee 27
Waldron v. United States, 516 U.S. 928, 116 S.Ct. 333, 133
L.Bd.20 233 (1995) ....... 2S SRR R EO ean 57
TEXAS CODE OF CRIMINAL PROCEDURE
A a eee 64, 65
WOM oe anes ee pei tae ee ee 57
wae oe ee ae 44,45
it MAM eccrine eee 33
——, _
RRR eRe ate nperixe Raxear seo) Segre tre he see ee 44
Ry De yl Le Oat ROR 27
TIA RD ooo cc hiv ov ese ee 33, 35
Mis oti ee eg ee ee re 27
TEXAS PENAL CODE
EER t en ree ee nee N ene at eT 64
Ee ane eNO, ee 16, 27, 33, 36, 56, 61
ac ee see res ae 45
TEXAS RULES OF CIVIL PROCEDURE
I a hie oe sane enn wen eue Meee eens 44,45
I eee ea 35
UNITED STATES CONSTITUTION
SP Asie... 6 6 kcksendess tena 46, 49
6" Amendiamees . os i cccunddeenss eee 45
Pe eS ey Re en ae Te
ee eee ee ee ae
109
IDENTITY OF PARTIES
The parties to the trial court judgment and the names
and addresses of trial and appellate counsel are as follows:
Plaintiff: State of Texas
Defendant: Jay S. Fichtner
Plaintiff's counsel:
Dallas County Criminal District Attorney
Clark Birdsall
SBN 02333500 |
Crowley Courts Building
Dallas, Texas 75207
Defendant's counsel:
Kenneth Blassingame
SBN 02472000
4111 N. Central expressway, Suite 202
Dallas, Texas 75204
Edgar A. Mason
SBN i3153000
2612 Boll St.
Dallas, Texas 75204-1002
Gary Patton
SBN 15627400
14275 Midway Rd., Suite 220
110
Dallas, Texas 75001
111
TO HONORABLE JUDGE OF SAID COURT OF APPEALS:
Jay S. Fichtner, Appellant, files this appeal from a
judgment of the 194" Judicial District Court of Dallas County,
Texas, signed on March 12, 1999. In support of this appeal,
Appellant respectfully shows the following:
Statement of the Case
Appellant was charged by indictment with aggravated
perjury (CR 002). In a 1 jury trial, the trial court instructed
the jury that the acts charged in the indictment were material
as a matter of law (CR 141-150). The jury could not reach a
verdict and was dismissed (CR 103, 140).
Following the 1* trial the presiding judge of the 194"
District Court recused himself (CR 007), and a retired judge
presided over post-recusal proceedings, except for signature
and entry of a final judgment (CR 034). No order appointing
the retired judge was signed by the Presiding Judge of the 1*
Judicial Administrative District.
After four days of a2™ jury trial Appellantentered into
a plea bargain agreement under which he pled guilty to
misdemeanor perjury and agreed to forfeit his Texas law
license of 44 years (CR 033). The plea bargain agreement was
signed on March 11, 1999, before the retired judge (CR 033)
and a judgment was signed on March 12, 1999, by the judge
who earlier had recused himself (CR 34-36).
112
Thereafter, Appellant filed a motion to retract the plea
bargain agreement (CR 38-41) and filed a motion for new trial
(CR 68-70). Following an extended presentation of evidence
on the new trial motion (RR Motion for New Trial Hearing), it
was denied (CR 54). Appellant requested permission to
appeal (CR 063-066). The court granted Appellant's request as
to those matters filed in writing before the time of the plea
(RR Motion for New Trial Hearing, 123, Il. 20-25; 124, Il. 1-6).
Appellant filed a timely notice of appeal (CR 68-71).
Appellant's appeal has been delayed to give the district clerk
and court reporters time to file their respective extensive
records, the last portion of which was not filed until January
8, 2000.
Issues and Points Presented for Review
1" Issue or Point Presented for Review
Appellant's appeal is not limited by Rule 25.2(b)(3)(A),
(B) or (C), Texas Rules of Appellate Procedure even though
Appellant pled guilty pursuant to a plea bargain agreement
because the punishment assessed exceeded the punishment agreed
to by the appellant; the judgment is void or voidable for other
material defects; the requirement that Appellant must have
obtained the trial court’s permission to appeal is void and
unenforceable for vagueness and lack of adequate standards;
and the opinion in Young v. State, 8S.W.3d 656 (Tex.Crim. App.
2000) rendered by the Texas Court of Criminal Appeals on
January 5, 2000.
113
2™ Issue or Point Presented for Review
This appeal charges jurisdictional and structural
defects, the substance of which were raised by written pre-
trial and trial motions, which questioned probability of cause
for the indictment, constitutionality of §37.03 and §37.04, Texas
Penal Code, because under the holding of United States v.
Gaudin, 515 U.S. 506, 115 S.Ct. 2310, 132 L.Ed 2d 444 (1995), the
sections violate Appellant's 5", 6" and 14" Amendment rights
to due process and jury trial.
3" Issue or Point Presented for Review
The 2™ trial of Appellant's charges of aggravated
perjury subjected him to double jeopardy, when the court in
the 1“ trial had instruct the jury that the acts charged against
Appellant in the indictment were material, thereby causing a
deadlocked jury which the court discharged without
“manifest necessity.”
4" Issue or Point Presented for Review
There was no probable cause for Appellant's
indictment, which should have been quashed or dismissed
upon Appellant's several pre-trial and trial motions.
5m e or Point Pr ted for Review
114
There is no evidence or insufficient evidence (1) that
either Appellant's acts charged in the indictment was false or
actionable; (2) that Appellant intended to deceive the court of
appeals when he verified two statements charged in the
indictment; or (3) that either of the two statements charged in
the indictment was material to or could have affected the
course or outcome of the appellate proceedings.
6" Issue or Point Presented for Review
Appellant's Motion for New Trial should have been
granted because of newly discovered evidence, perjured,
tainted or unreliable testimony of an 11 year old child, lack of
a voluntary guilty plea, breach of the plea agreement,
Appellant's retraction of his plea bargain agreementand in the
interests of justice.
1" Issue or Point Presented for Review
(Restated)
Appellant's appeal is not limited by Rule 25.2(b)(3)(A),
(B) or (C), Texas Rules of Appellate Procedure, even though
Appellant pled guilty pursuant to a plea bargain agreement,
because the punishment assessed exceed the punishment . .. agreed
to by the appellant; the judgment is void or voidable for other
material defects; the requirement that Appellant must have
obtained the trial court's permission to appeal is void and
unenforceable for vagueness and lack of adequate standards;
and the opinion in Young v. State, rendered by the Texas Court
of Criminal Appeals in January 5, 2000.
- et, aa i
115
Statement and Argument
in Support of 1" Point
A. Pre-Trial and Trial Proceedings
After a jury had been impaneled and 4 days of trial
charges of aggravated perjury, Appellant pled guilty to
misdemeanor perjury, pursuant to a plea bargain agreement
(CR 033). Part of the plea agreement forced Appellant to
forfeit his Texas law license, which he had held without
blemish for 44 years (CR 033, RR 3/10/99: 59, II. 2-4). The
indictment had arisen out of a child custody case in which
Appellant had represented a widowed mother of two little
girls in defense of a suit that sought appointment as their sole
managing conservator, filed in the name of an aged, ill,
Oklahoma paternal grandmother (Supplemental exhibit
Volume "', State’s Exhibit No. 1, Ex. A [7 pages] & Ex. W [4
pages].
Immediately before Appellant's plea, the trial court
had ruled (RR 3/11/99: 12, II. 19-24), that Appellant's client's
oldest child, an 11 year old, would be allowed to testify before
the jury. The child was living with the Oklahoma family,
which had brought her from Oklahoma to court. The court
allowed her to testify to unsubstantiated sexual abuse by her
half-brother, and in connection with the unsubstantiated
1. Hereinafter, SEV. The volume purports to be a copy
of State Exhibit #1 and State Exhibit #2. .
aaa i.
116
sexual abuse to testify that Appellant had told her to change the
story... tolie... about what her half-brother had done to her (RR
3/10/99: 166, II. 21-25; 167, II 1-16; RR 167, Il. 17-25; 170, Il. 2-
6) in the civil custody case. The evidence, even if true, was
remote. The child said the alleged encounter had occurred
before Christmas of 1996 (RR 3/10/99: 174, II. 15-22." Even
according to the child’s confused and questionable testimony,
the alleged events would have occurred more than 2 years
prior to trial (RR 174, Il. 15-22; 191, I. 12-25; 192, I. 1-12).
The child’s testimony raised extraneous offenses; was
immaterial and irrelevant to the State’s charges; could not
have been relevant to rebut Appellant's testimony because he
had not opened the door to character evidence; and it was so
emotionally charged that any probative value it may have had
was overwhelmingly out-weighted by its adverse effect upon
the jury. The child was also a surprise witness. The State had
not listed the child as a witness in Appellant's 1* trial of the
State’s charges(CR Supp.#2, 042), and it had not given
Appellant adequate notice in the 2™ trial to prepare an
adequate response to the child’s testimony in violation of pre-
trial orders (Notice required: CR 1-120; State’s witnesses: CR
1-123, Motion in Limine: CR1-130, CR 1-133; Extraneous
offenses: CR 1-134, CR 1-137).
2. Appellant was indicted July 11, 1996 (CR Supp. 001),
and the 2™ trial started March 8, 1999.
117
Before the 2™ trial started, Appellant had objected to
the State’s proposed reference in opening statements to
alleged, unsubstantiated sexual abuse of Appellant's client's
children in the family law case (RR 3/9/99: 4, II. 13-25; 9, II.
11-14; 10, I. 18-23; 12, II. 20-25; 13, I. 1-18; 14, Il. 3-7; 14, 1. 13-
16; 17, I. 16-24; 18, II. 1-24; 20, II. 3-6; 21, I. 12-16). The court
sustained Appellant's objections, but reserved its ruling on
admissibility of the evidence (RR 3/9/99: 26, II. 21-22; 27, I. 1;
CR 007 [3-11-99 docket entry]). At the conclusion of the trial,
the State tendered the child to testify after it had rested its case
and Appellant was about to rest his. Appellant submitted
vigorous oral and written objection, which the trial court
overruled (CR Supp. #2, 008-013; CR 007 [Court's 3/11/99
docket entry]; RR 3/11/99, 11, II. 11-25; 12, II. 1-25).
B. Plea Bargain, Guilty Plea and Judgment
A Plea Bargain Agreement was signed and agreed to by
Appellant on March 11, 1999, and approved by Hon. Robert
Dohoney, Retired (CR 033). It provides that Appellant was to
have testified, but Appellant did not testify at the plea hearing
(RR, Plea of Guilty, 1/11/99). The agreement, as signed,
contains no “V¥” on the line which recites, confinement in [State
Jail] [County Jail], and it reflects agreement that there was to
have been -0- days as a condition of Probation (CR 033). The
written judgment signed on March 12, 1999, by Judge Entz
does not conform to the plea bargain agreement signed by
Appellanton March 11". Among other material discrepancies
is the court's enhancement of punishment. The judgment
states that Appeliant’s punishment is assessed . . . at a fine of
118
$300.00 and 1 (one) year confinement in the Dallas County jail (CR
034; emphasis added).
Judge Dohoney had presided during the trial, but on
March 11" he did not sign a judgment. A written judgment,
recorded in volume 404, page 23, of the court records, was not
signed until March 12, 1999, and it bears the signature of Hon.
Harold Entz (CR 034), who had not tried the case or engaged
in the plea bargain proceedings. Furthermore, a document
entitled, Conditions of Community Supervision, which is
attached to and made part of the judgment, also was signed
by Hon. Harold Entz, although he had recused himself from
the case. Not only is the attachment signed by a recused jurist,
it shows to have been signed by him on March 11, 1999, when
he had not presided over the case, had not been in attendance
at and had not participated in the plea bargain proceedings.
Appellant respectfully submits that the discrepancy in
his motion filed on behalf of his client on June 14, 1996, for
leave to file a mandmus proceeding makes him no more
subject to a charge of perjury than discrepancies of record in
the trial court at bar. Hon. Harold Entz’s signature appears on
an official document, which misrepresents the date upon
which it was signed, and the signature, itself, is without
authority, because Judge Entz had been recused and had not
presided over trial of the case. Surely the impact of a recused
judge, who had not presided over a trial, signing a final
judgment in a criminal case could be far more harmful than
Appellant's mischaracterization to this Honorable Court of a
4 ila a he es i
119
document he had been led ‘to believe had been signed by a
trial judge. Appellant's efforts on behalf of a client were un-
rewarded and uncompensated. Because of the ineffectiveness
of the document used before this court, it was useless and
irrelevant. On the other hand, Judge Entz’s impact on the
validity and enforceability of the judgment in the case at bar
can be far-reaching.
Lawyers and judges make innocent mistakes in courts
all the time, and as in the case at bar the rules are versatile
enough to accommodate innocent, unintentional mistakes.
When lawyers and judges do err, however, they are not
charged, indicted and subjected to criminal prosecution for
aggravated perjury and stripped of their law licenses and
livelihood, particularly when the error is traceable to an
opposing counsel's failure to communicate.
Judge Entz had not tried the case. After he declared a
mistrial and discharged the jury in the 1* trial, he recused
himself from the case (CR 007). Before he recused himself,
however, without prior notice to Appellant, he granted the
State’s motion to dismiss the indictment upon which the 1*
trial had been based (CR 111). Then the State obtained a re-
indictment of the same charge from another grand jury,
without giving Appellant prior notice or an opportunity to
appear before the 2™ grand jury (CR 002). The 2™ indictment
also contains different terms from the 1* indictment.
120
- As part of the appellate record at bar, Appellant
requested the district clerk to include a copy of an order of the
Judge of the 1* Administrative District appointing Judge
Dohoney to replace Judge Entz as the trial judge (CR 75 [1*
two items], items 3 [p & q] and items 4 [a & b], but Appellant
was told that such an order could not be found, and therefore,
as far as the trial record is concerned, there is no
Administrative Judge’s order appointing Judge Dohoney, as
required by Rule 18a(c), Texas Rules of Civil Procedure.
C. Post-Judgment Proceedings
After a judgment was signed on March 12, 1999, and
he had bowed to his criminal counsel’s urgent
recommendation to enter into a plea bargain, Appellant
recognized the enormity and devastating consequences of his
act, and he filed a motion to retract his plea bargain agreement
(CR 038-041). Because of surprise and lack of time to prepare
a defense, when mixed with stress and pressure to proceed
with a jury under the circumstances, Appellant's plea truly
had not been voluntary. Newly discovered evidence
presented at the hearing of his motion for new trial
overwhelmingly proved that testimony of the 11 year old
child was false, contrived and fabricated by the Oklahoma
paternal family.
Furthermore, Appellant had not been disciplined by
the State Bar of Texas to have caused loss of his license to
practice law. In fact, there is uncontradicted evidence in the
121
record that the State Bar found no grounds to discipline
Appellant (CR 038-041).
Appellant's motion to withdraw his guilty plea was
denied (CR 054). Appellant filed a motion for new trial (CR
049), supported by affidavits of the child’s mother (CR 042-
048) and Appellant's former legal assistant (CR 056-060) that
directly contradict the child’s fabrications. Additional,
impartial, 3" party evidence produced upon the new trial
motion (Motion or New Trial Hearing, RR5/24/99) affirmed the
mother’s and Appellant's secretary's affidavits. Appellant
submits that the trial court committed reversible error in
ruling that the 11 year old child’s testimony was admissible.
Texas Rules of Evidence Rule 404(b); see also, Hines v. State, 571
S.W.2d 322 (Tex.Crim. App. 1978); Cameron v. State, 530S.W.2d
841 (Tex.Crim.App. 1975); Alvarez v. State, 511 S.W.2d 493
(Tex.Crim.App. 1974); Haft v. State, 416 S.W.2d 824
(Tex.Crim.App. 1967). The trial court committed reversible
error in denying Appellant's new trial motion.
The following random excerpts of witnesses’ testimony
at Appellant's Motion for New Trial Hearing, show the
deceptive and contrived nature of the evidence that the jury
would have heard through the child.
Barry Coakley, Ph.D.:
1. Appointed by the trial court to do an
evaluation of the child (RR 45, II. 6-8);
y A Found no proof of sexual abuse (RR 71, II. 5-9);
122
Child never said anything about Appellant
asking her to lie or offering her money to lie
(RR 71, Il. 10-14, 22-25; 72, I. 2, 11-25, 73, 74, Il.
17-21).
Justin Ezchoa
: R
NV
Employed by Dallas County Court Services to
conduct social studies of families engaged in
custody disputes (RR 107, II. 16-19));
Talked with the child, K.C. (RR 108, II. 9 -11);
The child never mentioned being offered
money by Appellant or playing games in
Appellant's office with chairs, to get her to
testify in a particular way (RR 109, II. 1-14);
Ezcoha concluded that the child’s report of
sexual abuse was untrue (RR 109, I. 25; 110, II.
1-2);
The child’s stories were conflicting (RR 110, II.
1-2);
Carol Ann Wilson
i.
Anattorney specializing in Family Law (RR 66,
I. 10), who had assisted Appellant in the
custody case;
Never met with the child in Appellant's office
(RR 80, II. 19-23);
Never witnessed an offer by Appellant to pay
K.C. $20 to testify in a certain way (RR 80, I.
24-25; 81, II. 1-5) nor witnessed Appellant and
123
K.C. playing with chairs in Appellant's office
(RR 81, Il. 7-11) nor witnessed Appellant ask
K.C. to sign a paper (RR 81, II. 12-15).
Paula Marie Crank
The child’s mother (RR 92, II. 24-25; 93, II. 1-2);
2. The child was in Appellant's office only 1 time
(RR 94, II. 11-13);
3. The child was never out of mother’s presence
while in Appellant's office (RR 95, II. 4-6);
4. Appellant never offered money to the child to
testify (RR 95, II. 7-10);
3. No role playing with chairs ever took place
with the child in Appellant's office (RR 95, II.
11-13);
6. Appellant never asked the child to sign a piece
of paper (RR 95, II. 14-16);
ee After her father’s death and the child started
visiting the paternal family in Oklahoma, she
changed drastically in school and personal
appearance (RR 96, II. 9-24);
8. After the child started visiting with her
paternal family in Oklahoma, she began to lie
about things (RR 98, II. 1-25; 99, II. 1-9). (See
also testimony of her public school teachers,
Peggy Joyce Williams and Cynthia Forbes. (RR
49-60).
Paul R. Shunatona
124
~
Practicing attorney (RR 114, Il. 9-22);
- Represents Katherine Crank, the paternal
grandmother (RR 114, II. 15-20);
3. Represents Katherine crank, the paternal
grandmother (RR 114, I. 15-20);
4. Admitted under oath that there was no finding of
sexual abuse in any court, not even in tribal court
(RR 118, I. 6-11);
~ Admitted that he does not know of any physical
evidence that has come into [his] possession that
would indicate that Katrina Crank was sexually
abused (RR 119, II. 18-21);
6. Admitted that in tribal court Shunatona had
testified that sexual abuse had never been
proven (RR 119, IT. 22-25).
After an en camera inspection of Texas Department of
Protective and Regulatory Services records, the trial court also
stated that as late as September 30, 1996, there is no evidence
that sexual abuse had occurred (RR 105, II. 18-25; 106, II. 1-4).
The trial court denied Appellant's motion for new trial,
- and Appellant filed a motion for leave to appeal (CR 063-066),
which was granted as to those matters that have been filed in
writing before the time of the plea (RR, Motion for New Trial
Hearing, 123, Il. 24-25; 124, II. 1-2). Thereafter Appellant gave
timely notice of appeal (CR 068).
D. Plea Bargain Agreement and Judgment
125
Must Be Compatible
Rule 25.02, Tex.R.App.P., provides that a criminal
defendant's right of appeal is limited if judgment is rendered on
[a] plea of guilty .. . [if] the punishment assessed did not exceed the
punishment ... agreed to by the defendant (emphasis added).
Art. 44.02, C.C.P., contains identical language. The legislature
appears to confirm that an agreement is synonymous with the
word, contract, and if it is breached by the State or the court,
which is required to approve it, the defendant's door to an
appeal, not limited to jurisdictional or structural errors, is
opened. Since punishment invoked in the judgment in the
case at bar exceeds that to which Appellant agreed in writing,
his plea bargain agreement is no bar to an appeal. On the
contrary, breach of the plea bargain agreement is material and
an independent ground for reversal of the trial court
judgment. Ervin v. State, 1999 WI. 10277 (Tex.Crim. App. 1999).
Without regard to Appellant's appellate rights arising
out of breach of the plea bargain agreement, Helms v. State, 484
S.W.2d 924, 927 (Tex. Cr. App. 1972) has been overruled. Inan
opinion delivered on January 5, 2000, by the Texas Court of
Criminal Appeals in Young v. State, all question of a
defendant's appellate limitations have been resolved, and now
he is permitted unlimited appeal, since it has followed a guilty
plea given under a plea bargain agreement. Appellant
respectfully submits that his guilty plea under a plea bargain
is not a waiver of any rights on appeal and that he is not
barred from raising all issues he might have raised had there
been no guilty plea and plea bargain agreement.
126
There are additional, independent reasons to ignore
Rule 25.029(b)(3), Tex.R.Civ.P. , and Art. 44.02, C.C.P., and
reverse the trial court judgment. The judgment at bar is
signed by a judge who had recused himself and who had not
presided over any of the trial proceedings. Rule 18a(c),
Tex.R.Civ.P., provides that [i]f the judge recuses himself, he shall
enter an order of recusal and request the presiding judge of the
administrative judicial district to assign another judge to sit, and
shall make no further orders and shall take no further action in the
case except for good cause shown in the order in which such action
is taken.
Judge Entz recused himself after the 1* trial of
Appellant's case, but he did not enter an order of recusal or
request the presiding judge of the 1“ Administrative District
to replace him. Without apparent power or authority, he
appointed Hon. Robert G. Dohoney, Retired, to preside over
the 2™ trial (CR 007). Judge Dohoney was notan elected judge
nor was he the sitting judge of another district court, and there
is nothing in the record which reports an order of the 1“
Administrative Judicial District appointing him to try the
instant case (CR 074-076).
Judge Dohoney had no jurisdiction to preside at a trial
of Appellant's case, because he was not duly and properly
appointed according to the constitution and laws of the State
of Texas, and all of his actions and rulings were void and a
nullity. Judge Entz’s signature on the final judgment voids
that instrument, ab initio. The error is compounded because of
127
his recusal and failure to preside over trial. Sharkey v. State, 994
S.W.2d 417 (Tex.App. Texarkana 1999, no pet.); Eubanks v.
State, 1999 WL 976163 (Tex. App. Texarkana 1999, no pet.); Fry
v. Tucker, 202 S.W.2d 218, 221 (Tex. 1947); Buckholts ISD, et al.
V. Glaser, 632 S.W.2d 146, 148 (Tex. 1982). An order of a
constitutionally disqualified judge is “absolutely void,” “a
nullity.” Templeton v. Giddings, 12 S.W. 851 (Tex. 1889);
Stephenson v. Kirkhyam, 297 S.W. 265, 267 (Tex.Civ.App. San
Antonio 1927, no writ).
In light of the Young v. State, supra, Appellant assumes
that it was unnecessary for him to obtain the trial court's
permission to appeal. However, Appellant respectfully
submits that the statutory provision requiring a defendant to
obtain a judge’s permission to appeal is unconstitutional,
because there are no definable, statutory guidelines to assist a
judge in a decision. A judge is free to act subjectively,
arbitrarily and capriciously in a grant or denial of permission
to appeal. See City of Mesquite v. Alladin’s Castle, Inc., 455 US.
283, 290, 102 S.Ct. 1070, 1074, 71 L.Ed. 152 (citing Marbury v.
Madison, 5 U.S. (1 Cranch) 137, 163, for the proposition that we
‘are a government of laws, and not of men’)
lusi 1“ Issue
Appellant respectfully submits:
1. Although he pled guilty, he did so under a plea
bargain agreement, and under the holding of Young v.
State, supra, that he be granted the right to appeal any
128
issues he might have raised had he not entered a guilty
plea, without regard to whether or not they are
jurisdictional or structural;
2. The judgment should be reversed and the indictment
quashed, because (a) Hon. Robert Dohney did not
have jurisdiction to conduct a trial; (b) punishment
contained in the judgment exceeds the punishment to
which Appellant agreed; (c) it was signed by Hon.
Harold Entz, who had recused himself and had not
presided at trial.
2™ Issue or Point Presented for Review
(Restated)
This appeal charges jurisdictional and structural
defects, the substance of which were raised by written pretrial
and trial motions, which questioned probability of cause for
the indictment, constitutionality of §37.03 and §37.04, Texas
Penal Code, because under the holding of United States v.
Gaudin, 515 U.S. 506, 115S.Ct. 2310, 132 L.Ed.2d 444 (1995), the
sections violate Appellant's 5" , 6", and 14% Amendment
rights to due process and jury trial.
3™ Issue or Point Presented for Review
(Restated)
The 2™ trial of Appellant's charges of aggravated
perjury subjected him to double jeopardy, when the court in
129
the 1* trial had instructed the jury that the acts charged
against Appellant in the indictment were material, thereby
causing a deadlocked jury which the court discharged without
“manifest necessity.”
4" Issue or Point Presented for Review
(Restated)
There was no probable cause for Appellant's
indictment, which should have been quashed or dismissed
upon Appellant's several pretrial and trial motions.
Statement and Argument
of 2", 3" and 4" Points
The indictment charges (CR 002) that in a document
entitled VERIFICATION (sic) Appellant made a false statement
under oath and swore to the truth of a false statement
previously made with intent to deceive and with knowledge
of the statement’s meaning. It further charges that the
document was attached to and incorporated ina MOTION FOR
LEAVE TO FILE A PETITION FOR WRIT OF MANDAMUS
AND PETITION OF PROHIBITION WITH LEGAL
AUTHORITIES (sic). The indictment then defines the false
statement as follows: to wit, that the allegations of fact contained
in these proceedings are true and correct. The indictment does
not define the phrase, allegations of fact nor the phrase,
these proceedings (CR 002). Presumably it charges that the
130
allegations of fact in these proceedings are not true and
correct, but the State offered no proof of such charges.
The text of the indictment switches, completely (CR
002) from the “document” it refers to as a verification to the
“said motion” which presumably means the motion for leave
to file a petition for writ of mandamus. In a non sequitur it
charges that Appellant's argument that the mischaracterized
“order” does not specifically instruct peace officers of their duty in
the event they take the children into possession, is a false fact. The
quoted phrase, which obviously is Appellant's interpretation
of the mischaracterized order, does not appear in the
VERIFICATION (supra).
The other false “statement” with which Appellant is
charged with having made under oath, with knowledge of its
meaning and with intent to deceive is in said order. However,
said order does not appear in the verification, either. Thus, it
the State had the burden to prove that the verification is false
as to said order, which undoubtedly refers to the document
Appellant mistakenly submitted to the court as the 301"
District Court order of June 7, 1996.
The indictment chargesthat Appellant represented
that said order reads: “deliver the children safely [to this Court
during regular court orders (sic) [Katrina Crank instanter].”
Appellant respectfully submits that the quote is true, not false.
Appellant was referring to the document he was using in the
appellate proceeding. It could only have been that “order,”
co
but an order not entered of record (and there was no order of
record before the court”, one only attached to an appellant's
brief may not be considered. Banowsky v. State Farm Ins. Co.,
876 S.W.2d 509 (Tex.App. Amarillo 1994, no writ). Upon
reflection, Appellant has concluded that the reason his
application for leave to file a mandamus proceeding was his
failure to attach a certified copy of an order to his pleadings.
The indictment is completely silent as to the terms of
and does not even refer to an actual order signed on June 7,
1996, by the 301* District Court. Significant also is the
indictment's failure to disclose that the VERIFICATION was
Exhibit “U,” one of a number of exhibits submitted to the
appellate court in an Appendix of Exhibits. Appellant had fully
disclosed to this Honorable Court that the documents in the
Appendix of Exhibits were true only upon information and
belief (SEV. Ex. “U”). So this Honorable Court is not misled
by the State’s selective, convoluted interpretation of the oath
signed by Appellant, he quotes it in full (SEV. P. 9):
VERIFICATION
STATE OF TEXAS §
COUNTY OF DALLAS §
Before me, the undersigned authority, on
this day personally appeared Jay S. Fichtner, who,
being first by me duly sworn, upon oath deposes
and says that he is the attorney for Paula M. Crank,
132
Relator; that he has authority to make this affidavit
for and in her behalf; that the exhibits attached to
this motion and contained in the “Appendix of
Exhibits” which are attached and incorporated in
these proceedings are true and correct to the best
information and belief ofaffiant; that the allegations
of fact contained in these proceedings are true and
correct (Emphasis added).
/s/ Jay S. Fichtner
STATE OF TEXAS §
COUNTY OF DALLAS §
SUBSCRIBED AND SWORN TO before
me, a Notary Public in and for the State of Texas,
on this 14" day of June, 1996, to certify which
witness my hand and official seal.
/s/ Anita H. Martinsen
Notary Public, State of Texas
The exhibits in the Appendix of Exhibits were only
verified upon information and belief. Because the motion for
leave to file mandamus proceeding was denied, under
appellate court’s rules and procedures then applicable, the
Appendix of Exhibits was not filed (SEV, appellate docket sheet,
[3 un-numbered pages in the copy prcvided to Appellant by
the court reporter]).
a ee Oe a ns a oe
133
Appellant filed a number of motions before trial to
obtain dismissal of the indictment, but they were denied:
Motion to Dismiss Indictment as being Unconstitutional (CR 023-
028); Defendant’s Motion to Set Aside Indictment (CR 085-087);
Addendum to Motions to Dismiss Indictments (CR 108-110);
Motion to Dismiss Indictment Because of Double Jeopardy and Lack
of Materiality (CR Supp. #2 @ 34-35); Motion to Determine
Materiality and to Quash or Dismiss Indictment (CR Supp. #2 @
36-38).
There is no evidence of a statement previousl
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