Childress, Jason ( 2015 )

EMERGENCY RELIEF REQUESTED
No.
IN THE COURT OF
CRIMINAL APPEALS, TEXAS
IN RE JASON CHILDRESS,
PETITIONER
PETITON FOR WRIT OF HABEAS CORPUS
On Petition For A Writ Of Habeas Corpus
To The Texas Court of Criminal Appeals From Cause No. 2014CR1548
From The Comal County Court At Law #2 of Comal County, Texas
(Charles A. Stephens II)
IDENTITY OF PARTIES
Petitioner, Jason Childress, certifies that the following is a complete list of the names and
addresses of all parties.
Petitioner: Jason Childress
Sui Juris in Trial Court,
9141 Gristmill Ct.
Fort Worth, Texas
Respondent: Charles A. Stephens II
County Court At Law #2
Comal County Courthouse Annex
150 N. Seguin, Ste. 301
New Braunfels, TX 78130
Interested Party: Abigail Whitaker
Comal County District Attorney's Office
Comal County Courthouse Annex
150 N. Seguin Ave. Ste. 307
New Braunfels, Texas 78130
ii
TABLE OF CONTENTS
Page
IDENTITY OF PARTIES.............................................................................................................. ii
TABLE OF CONTENTS.............................................................................................................. iii
INDEX OF AUTHORITIES......................................................................................................... iv
STATEMENT OF THE CASE..................................................................................................... ix
STATEMENT OF JURISDICTION............................................................................................. ix
ISSUES PRESENTED................................................................................................................. ix
STATEMENT OF FACTS............................................................................................................. 1
ARGUMENT................................................................................................................................. 2
HABEAS RELIEF IS PROPER........................................................................................ 2
I. POWER TO RESTRAIN................................................................................................... 2
II. MANNER OF RESTRAINT............................................................................................. 3
III. ISSUES THAT BAR PROSECUTION AND CONVICTION.......................................... 9
A. Sec. 38.02 IS INAPPLICABLE UNDER THE CIRCUMSTANCES......................... 9
B. WITNESSES DISQUALIFIED................................................................................. 12
REQUEST FOR RELIEF............................................................................................................. 14
VERIFICATION.......................................................................................................................... 15
CERTIFICATE OF SERVICE..................................................................................................... 16
APPENDICES …......................................................................................................................... 17
(Appendix is separate, incorporated herein in its entirety for all purposes, and is being used as an
Appendix for this Petition for Writ of Hebeas Corpus and Petition for Writ of Mandamus)
iii
INDEX OF AUTHORITIES
Legal Maxims & Doctrines
Doctrine of Acquiescence.............................................................................................................. 3
Ejusdem Generis.......................................................................................................................... 11
Expressio unius est exclusio alterius............................................................................................ 11
Jus ex injuria non oritur................................................................................................................ 14
Lex citius tolerare vult privatum damnum quam publicum malum............................................. 14
Nemo punitur pro alieno delicto.............................................................................................. 7, 14
Noscitur a Sociis.......................................................................................................................... 11
Nullus commodum capere potest de injuri su propri............................................................... 8, 14
Ubicunque est injuria, ibi damnum sequitur............................................................................ 8, 14
Qui non negat, fatetur..................................................................................................................... 3
Legal Encyclopedia
Corpus Juris Secundum,
2d Vol. 7 section 25.......................................................................................................... 13
Federal Cases
Armstrong v. Manzo,
380 U.S. 545 (1965)........................................................................................................... 8
Central Pacific Railway Co. v. Alameda County,
284 U.S. 463 (1932)........................................................................................................... 4
Conley v. Gibson,
355 U.S. 41 at 48 (1957)............................................................................................ 13, 14
Davis v. Wechler,
263 U.S. 22....................................................................................................................... 13
Georgia v. South Carolina,
iv
497 U.S. 376 (1990)........................................................................................................... 4
Goldsmith v. U. S.,
C.C.A.N.Y., 42 F.2d 133.................................................................................................. 11
Grannis v. Ordean,
234 U.S. 385, 394............................................................................................................... 9
Haines v Kerner,
404 U.S. 519 (1972)......................................................................................................... 13
In re Eagle Bus Mfg.,
62 F.3d 730, 735 (5th Cir. 1995)....................................................................................... 7
In re Gault,
387 U.S. 1 (1967)............................................................................................................... 8
Jenkins v. McKeithen,
395 U.S. 411, 421 (1959)................................................................................................. 13
Maty v. Grasselli Chemical Co.,
303 U.S. 197 (1938)......................................................................................................... 13
Medical Center, Inc.,
485 U.S. 80 (1988)............................................................................................................. 9
Mullane v. Central Hanover Bank & Trust Co.,
339 U.S. 306, 314 (1950)................................................................................................... 8
NAACP v. Alabama,
375 U.S. 449..................................................................................................................... 13
Peralta v. Heights Medical Center, Inc.,
485 U.S. 80 (1988)............................................................................................................. 9
Picking v. Pennsylvania Railway,
151 F.2d 240, Third Circuit Court of Appeals................................................................. 13
Plaskey v. CIA,
953 F.2nd 25..................................................................................................................... 13
Puckett v. Cox,
456 F.2d 233 (1972) (6th Cir. USCA)............................................................................. 13
v
Robinson v. Hanrahan,
490 U.S. 38 (1972)............................................................................................................. 7
Stromberb v. California,
283 U.S. 359..................................................................................................................... 13
State Cases
Aleksich v. Industrial Accident Fund,
116 Mont. 69, 151 P.2d 1016............................................................................................ 11
Browning v. Placke,
698 S.W.2d. 362 (Tex. 1985) (orig. proceeding).............................................................. 10
Bruneio v. Bruneio,
890 S.W.2d 150, 155 (Tex. Civ. App. 1994, no writ)......................................................... 6
Burgin v. Forbes,
293 Ky. 456, 169 S.W.2d 321.......................................................................................... 11
Cliff v. Huggins,
724 S.W.2d 778, 780 (Tex.1987)................................................................................... 6, 7
DeLeon v, Periman,
530 S.W.2d 174 (Tex. Civ. App. 1975).............................................................................. 4
Delgado v. Hernandez,
951 S.W.2d 97, 99 (Tex. Civ. App. 1997, no writ)...........................................................
Dunham v. State,
140 Fla. 754, 192 So. 324, 325, 326................................................................................ 11
Ex parte Gordon,
584 S.W.2d. 686, 688 (Tex. 1979)..................................................................................... 5
Ex parte Smith,
178 S.W.3d 797 (Tex. Crim. App. 2005)............................................................................ 3
Fazio v. Pittsburgh Rys. Co.,
321 Pa. 7, 182 A. 696....................................................................................................... 11
Hidalgo County Water Improvement District No.2 v. Blalock,
301 S.W.2d 593 (1957)...................................................................................................... 4
vi
In re Aguilera,
37 S.W.3d. 43, 47 (Tex. Civ. App. 2000, no pet.).............................................................. 5
IN RE BOURG,
Tex. Civ. App. (2008)......................................................................................................... 5
In re Castro,
998 S.W.2d. 925, 927 (Tex.Civ. App. 1999. no pet.)......................................................... 5
Little v. Town of Conway,
171 S.C. 27, 170 S.E. 447................................................................................................ 11
Louis Pizitz Dry Goods Co. v. Fidelity & Deposit Co. of Maryland,
223 Ala. 385, 136 So. 800, 801........................................................................................ 11
Mapco, Inc. v. Forrest,
795 S.W.2d 700 (Tex. 1990 orig. proceeding).................................................................. 9
Morecock v. Hood,
202 N.C. 321, 162 S.E. 730.............................................................................................. 11
Newblock v. Bowles,
170 Oki. 487, 40 P.2d 1097.............................................................................................. 11
People v. One 1941 Ford 8 Stake Truck, Engine No. 99T370053, License No. P.8410, Cal.,
159 P.2d 641..................................................................................................................... 12
Platt v. Platt,
991 S.W.2d. 481 (Tex. Civ. App. 1999)......................................................................... 5, 6
Rozsa v. Jenkinson,
754 S.W.2d. 507, (Tex. Civ. App. 1988)............................................................................ 7
Sanchez v. Hester,
911 S.W.2d. 173 – Tex. Civ. App. (1995).................................................................... 9, 10
Saslaw v. Weiss,
133 Ohio St. 496, 14 N.E.2d 930...................................................................................... 11
State v. Owens,
907 S.W.2d. 484 (Tex. 1995) (per curiam)....................................................................... 10
State v. Western Union Telegraph Co.,
196 Ala. 570, 72 So. 99, 100............................................................................................ 11
vii
Thomas v. Miller,
906 S.W.2d. 260 (Tex.App.-Texarkana 1995) (orig. proceeding)................................... 10
Thomas v. Ray,
889 S.W.2d 237, 238 (Tex.1994)....................................................................................... 6
Withrow v. Schou,
13 S.W.3d. 37 (Tex. Civ. App. 1999)................................................................................. 7
State Constitution and Rules
Texas Code of Criminal Procedure,
Art. 4.04............................................................................................................................. x
Texas Code of Criminal Procedure,
Art. 11.01........................................................................................................................... x
Texas Code of Criminal Procedure
Art. 11.05........................................................................................................................... x
Texas Code of Criminal Procedure,
Art. 14.01......................................................................................................................... 12
Texas Code of Criminal Procedure,
Art. 14.03......................................................................................................................... 12
Texas Constitution
Art. V, Sec. V (c)................................................................................................................ x
Texas Penal Code,
Sec. 1.07 (a) (38).............................................................................................................. 11
Texas Penal Code,
Sec. 38.01 (5)................................................................................................................... 12
Texas Penal Code,
Sec. 38.02 (a) (d) (1)...................................................................................... 10, 11, 12, 13
viii
STATEMENT OF THE CASE
Underlying Proceeding:
A criminal action brought against Petitioner by IDA PANIAGUA for the alleged offense
“INTENTIONALLY REFUSE TO GIVE HIS NAME, DATE OF BIRTH AND ADDRESS TO
JAMES BELL.”
Respondent:
Charles A. Stephens II, Comal County Court At Law 2, of COMAL COUNTY, TEXAS.
Respondent's Action For Which Petitioner Seeks Relief:
Charles A. Stephens II, entered an order instructing the clerk of the Comal County Court
At Law 2 to issues a capias warrant, which has been issued, for Petitioner in absence of Due
Process, unconstitutionally restraining him.
Prior Petitions:
This is an Original Proceeding.
STATEMENT OF JURISDICTION
This court, pursuant to the Texas Constitution Art. V, Sec. V (c) and the Texas Code of
Criminal Procedure, Ch. 4, Art. 4.04 and Ch. 11., Art. 11.01 and 11.05 has jurisdiction to
consider and grant this Petition and to issue a Writ of Habeas Corpus.
ISSUES PRESENTED
1. Does the trial court have power to restrain Petitioner? (No)
2. Has the manner of restraint of Petitioner occurred in absence of Due Process? (Yes)
3. Are there issue which bar prosecution and conviction of Petitioner for the alleged
criminal charge against him? (Yes)
ix
STATEMENT OF FACTS
On September 4, 2014, Petitioner was unlawfully arrested, unlawful searched and had his
property seized unlawfully by officers of/for the NEW BRAUNFELS POLICE DEPARTMENT
(NBPD).
On September 12, 2014, Petitioner was coerced into signing a “PR BOND” (Apx. Tab B)
displaying an incorrect address for Petitioner. Petitioner was coerced in that the jailer whom
presented the “PR BOND” threatened to leave Petitioner in jail for another two weeks if he
refused to sign. Petitioner signed the “PR BOND” in order to expedite his release from his
unlawful imprisonment, as Petitioner could inform the trial court that the address displayed on
the “PR BOND” is incorrect and provide it with a correct one for purposes of service of notice or
any other correspondences.
On September 29, 2014, via letter (Apx. Tab C), Petitioner informed the trial court that it
had an incorrect address for Petitioner on file and provided it with both Petitioner's current
location and address to which notices of any hearings or any other correspondences should be
sent to in order for him to receive them.
On March 3, 2015, Petitioner began checking the online records for the trial court
because he had received no correspondences or notices of hearings. On that same day, Petitioner
discovered via online records that the trial court had failed or neglected to correct the incorrect
address it had on file (Apx. Tab D), that a “COMPLAINT (OCA)” (Apx. Tab E) and a
“NOTICE RETURNED” (Notice) (Apx. Tab F) had been filed into the trial court on December
15, 2014 and January 26, 2015, respectively, and than an “Arraignment” (see Apx. Tab D) had
taken place circa February 3, 2015. Petitioner further discovered than an
“AFFIDAVIT/FAILURE TO APPEAR” (Apx. Tab G), an “ORDER FOR ARREST-FAILURE
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TO APPEAR” (Order) (Apx. Tab H) and a “CAPIAS-FAILURE TO APPEAR” (Capias) (Apx.
Tab I) had also been filed into the trial court on February 20, 2015, February 26, 2015, and
March 2, 2015, respectively.
ARGUMENT
“A [petitioner] may use a pretrial writ of habeas corpus only in very limited
circumstances. First, the accused may challenge the State's power to restrain him
at all. Second, the accused may challenge the manner of his pretrial restraint [].
Third, the accused may raise certain issues which, if meritorious, would bar
prosecution or conviction. Ex parte Smith, 178 S.W.3d 797 (2005).
I. POWER TO RESTRAIN
The trial court is without subject matter, personal, political or civil contractual
jurisdiction over the underlying cause to the instance case, therefore, is without power to restrain
Petitioner. The lack of the aforementioned jurisdictions are set forth, challenged, and explained
in further detailed in Petitioner's “AFFIDAVIT OF COUNTERCOMPLAINT,”
(Countercomplaint) (see Apx. Tab K) attached hereto and incorporated herein it its entirety for
all purposes. The lack of the aforementioned jurisdictions are set out and explained in detail
specifically in Sections IV. – VIII. of Petitioner's Countercomplaint (Apx. Tab K). Petitioner's
averments have been received by all involved and interested parties, evidenced by Return
Receipts (see Apx. Tab N, O, P, & Q) attached hereto and incorporated herein for all purposes
and said Receipts have been filed into the trial court's record. Petitioner's sworn averments within
his Countercomplaint are unchallenged, unrebutted and unrefutted, and pursuant to the Doctrine
of Acquiescence, silence by the involved and interested parties constitutes their agreement with
Petitioner's sworn averments.
Doctrine of Acquiescence
Under the Doctrine of Acquiescence as well as the Maxim in Law which states
In re Jason Childress Page 2 of 18
that “silence shows consent” 6 Barb. [N.Y.] 2B, 35. Qui non negat, fatetur and
“He who does not deny, agrees,” (Trayner, Maxim 503), the Appellee’s silence
constituted their agreement with the Appellants’ arbitration proposal terms and
conditions under the legal Doctrine of Tacit Procuration.
The common law doctrine of estoppel by acquiescence is applied when one party
gives legal notice to a second party of a fact or claim, and the second party fails to
challenge or refute that claim within a reasonable time. The second party is said to
have acquiesced to the claim, and is estopped from later challenging it, or making
a counterclaim. The doctrine is similar to, and often applied with, estoppel by
laches
This occurred in the second Georgia v. South Carolina1 case before the U.S.
Supreme Court in 1990, when it was ruled that Georgia could no longer make any
claim to an island in the Savannah River, despite the 1787 Treaty of Beaufort's
assignment to the contrary. The court said that the state had knowingly allowed
South Carolina to join the island as a peninsula to its own coast by dumping sand
from dredging, and to then levy property taxes on it for decades. Georgia thereby
lost the island-turned-peninsula by its own acquiescence, even though the treaty
had given it all of the islands in the river (see adverse possession
Silence is acquiescence (aka. silent acquiescence and acquiescence by silence) is a
related doctrine that can mean, and have the legal effect, that when confronted
with a wrong or an act that can be considered a tortuous act, where one’s silence
may mean that one accepts or permits such acts without protest or claim thereby
loses rights to a claim of any loss or damage.2
Further, pursuant to the Doctrine of Stare Decisis, Petitioner's “...unchallenged averments
are accepted as true.” DeLeon v. Periman, 530 S.W.2d 174 (Tex.App.-Amarillo (1975)); quoting
Hidalgo County Water Improvement District No.2 v. Blalock, 157 Tex. 206, 301 S.W.2d 593, 596
(1957). Petitioner's averments that the trial court is without jurisdiction have been agreed to by
all involved and interested parties and are accepted as true under Texas Common Law. In
absence of the subject matter, personal, political and civil contractual jurisdiction, the trial court
is without power to restrain Petitioner in relation to the underlying case to the instant case.
II. MANNER OF RESTRAINT
1 Georgia v. South Carolina - 497 U.S. 376 (1990)
2 U.S. Supreme Court Central Pacific Railway Co. v. Alameda County, 284 U.S. 463 (1932)
In re Jason Childress Page 3 of 18
Even if the trial court had jurisdiction over the underlying cause to the instant case and
power to restrain Petitioner, the manner in which his restraint has taken place has clearly
manifested through a denial of due process, in that Petitioner was not provided notice of the
hearing from which his restraint stems from.
An Order (Apx. Tab H) for “FAILURE TO APPEAR” was issued by Respondent on
February 26, 2015. On March 2, 2015, the Clerk or a deputy therefor, of/for the trial court issued
a Capias (Apx. Tab I) for Petitioner. “Issuance of a capias is a sufficient restraint of liberty to
justify habeas corpus relief.” In re Aguilera, 37 S.W.3d. 43, 47 (Tex.App.-El Paso 2000, no pet.)
As of yet, Petitioner has not been taken taken into custody pursuant to Order and Capias.
“A habeas corpus petition is a collateral attack on a judgment, the purpose of which is not
to determine the final guilt or innocence of the [petitioner], but to ascertain whether the
[petitioner] has been [restrained] unlawfully. Ex parte Gordon, 584 S.W.2d. 686, 688 (Tex.
1979). The restraint of Petitioner by the trial court is unlawful due to the fact that the Order was
made and the Capias was issued in absence of due process. “A writ of habeas corpus will issue if
[] the court deprives the [petitioner] of liberty without due process of law.” In re Castro, 998
S.W.2d. 925, 927 (Tex.App.-Houston [1st Dist.] 1999. no pet.). A writ of habeas corpus is proper
and should issue due to the fact that Petitioner is being deprived of his liberty without due
process of law.
“A [petitioner] bears the burden of showing that []he is entitled to relief.” Turner,
177 S.W.3d at 288 (citing Occhipenti, 796 S.W.2d. At 808-09.)” IN RE BOURG,
Tex: Court of Appeals, 1st Dist. 2008.
The court administrator of/for the trial court erred by mailing the notice of the hearing
from which the Order and Capias stem to the wrong address even though the court had been
notified before the notice was sent, that the address it had on file was incorrect and had been
In re Jason Childress Page 4 of 18
provided with, and was in possession of, Petitioner's exact location and correct address. “[T]he
trial court erred when it [] failed to send notice of the hearing to [Petitioner's] address on file
with the court.” Platt v. Platt, 991 S.W.2d. 481 (1999).
Petitioner had notified the court via letter (see Apx. Tab C) sent on September 19, 2014,
which was received and filed into the trial court record on October 3, 2014, as a part of the
“MEMORANDUM (see Apx. Tab D) that the address it had on file (see Apx. Tab B and E) was
incorrect; that Petitioner had not lived at the incorrect address in a number of years; and, he
provided not only his current location– DALLAS COUNTY JAIL, but also the address to which
notice should be sent in order for him to receive it, if notice was not sent directly to the DALLAS
COUNTY JAIL.
“[T]the law presumes that a trial court will hear a case only after proper notice to the
parties. To rebut this presumption, [petitioner] has the burden to affirmatively show a lack of
notice by affidavit or other competent evidence.” Bruneio v. Bruneio, 890 S.W.2d 150, 155
(Tex.App.-Corpus Christi 1994, no writ). Petitioner has shown to the trial court, and now shows
this court, via affidavit (see Apx. Tab J, pg.5, #100. and Apx. Tab K, p.34 - 35, #77. - 78.) that
he was not provided notice of the hearing from which the Order and Capias stem. Further,
Petitioner provides this court with competent evidence (see Apx. Tab C & F) that he was not
provided notice of the hearing from which the Order and Capias stem.
“In the instant case, the record shows that notice of [the] hearing [] was mailed to the
wrong address. That a document was mailed creates a rebuttable presumption that it was
received.” Platt v. Platt, 991 S.W.2d 481 (1999) quoting Thomas v. Ray, 889 S.W.2d 237, 238
(Tex.1994). Similarly, in the underlying cause to the instance case, the trial court's record shows
that notice was mailed to the wrong address (see Apx. Tab C & F). “When [Petitioner] filed [his]
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affidavit stating that []he did not receive the notice, the presumption was rebutted.” (see Apx.
Tab K, p. 34 – 35, #77. – 78.) “The presumption of receipt is not evidence and vanishes when
opposing evidence is introduced showing that the notice was not received.” Cliff v. Huggins, 724
S.W.2d 778, 780 (Tex.1987).
“The error and invalidity of the trial court's judgment affirmatively appears on the
face of the record [see Apx. Tab D & F] in the that wrong address for [Petitioner]
is typed on the notice []. Additionally, the records shows that [the trial court] had
access to [Petitioner's] correct address [] [see Apx. Tab C]. Therefore, the notice
was not sent to [Petitioner's] “last known address. Rozsa v. Jenkinson, 754
S.W.2d. 507 (Tex.App.-San Antonio 1988)
“The [trial court] mailed notice of the pending [] proceeding, not to the jail
facility [or the address provided by Petitioner], but to [an incorrect] address []
listed in the records of the [trial court].” Robinson v. Hanrahan, 490 U.S. 38
(1972) “[T]he manner of notice did not comport with the requirements of the Due
Process Clause of the Fourteenth Amendment. (Id.) “The [trial court] knew that
[petitioner] was not at the address to which notice was mailed and, moreover,
knew also that [petitioner] could not get to that address since he [no longer lived
there]. Under these circumstances, it cannot be said the the [trial court] made any
effort to provide notice which was 'reasonably calculated” to apprise [petitioner]
of the pendency of the [] proceedings.” (Id.)
Either the Clerk or a deputy therefor, failed to correct the mistake in the court's files or
the court administrator intentionally sent notice to the wrong address.
“The notice was returned undelivered to the trial court on [or about January 27,
2015], with the notation “Return to Sender [Not Delivered As Addressed Unable
To Forward (see Apx. Tab F)]” Withrow v. Schou, 13 S.W.3d. 37 (Tex.App.-
Houston 1999). “[I]f [Petitioner] [had failed] to notify the clerk in writing of a
[correct] address, [] then there is no 'due process' argument...” (Id.) “Federal
courts have held in various contexts that mailing notice of settings by first-class
mail is constitutionally sufficient as long as the government acts reasonable under
the circumstances, even if the intended recipient of the notice never receives it.
See In re Eagle Bus Mfg., 62 F.3d 730, 735 (5th Cir. 1995)” (Id.) “There is
imposed 'a responsibility on the [party] to be notified to keep the court and parties
apprised of their correct and current address.'” [T]he record indicates [Petitioner]
notified the court of [the correct] address.” (Id.)
The trial court had been notified that the address it had on file (see Apx. Tab B) was
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incorrect and it was in fact notified and in possession of the correct address (see Apx. Tab C) to
which service was to be made, therefore, Petitioner cannot be faulted and restrained in his liberty
for the mistakes or wrongs of the clerk or deputy therefor, or court administrator; Nemo punitur
pro alieno delicto. “No one is to be punished for the crime or wrong of another.”; Nullus
commodum capere potest de injuri su propri. “No one shall take advantage of his own wrong.
Co. Litt. 148.”' Ubicunque est injuria, ibi damnum sequitur. Where ever there is a wrong, there
damages follow. 10 Co. 116.” Petitioner has been denied due process in that he was not provided
notice of the hearing from which the Order and Capias stem.
“It is clear that failure to give the petitioner notice of the pending proceedings
violates the most rudimentary demands of due process of law. Many controversies
have raged about the cryptic and abstract words of the Due Process Clause but
there can be no doubt that at a minimum they require the deprivation of life,
liberty, or property by adjudication be preceded by notice and opportunity for
hearing appropriate to the nature of the case. Mullane v. Central Hanover Tr. Co.,
339 U.S. 306, at 313.” Armstrong v. Manzo, 380 U.S. 5454 – Supreme Court
1965.
As has been stated and demonstrated by Petitioner herein, and the Appendices attached
hereto and incorporated herein, he has denied due process in that he was not given notice of the
hearing from which the Order and Capias stem. Further, even if Petitioner had received notice, it
does not set out the alleged misconduct with particularity specifically pertaining to the alleged
offense alleged to have been committed by Petitioner which made basis for his arrest and
creating an obligation to provide any information to the officers of/for the NBPD. In absence of
the alleged misconduct, even if Petitioner would have received the notice it would not have been
in compliance with due process requirements.
“Notice, to comply with due process requirements, must be given sufficiently in
advance of scheduled court proceedings so that reasonable opportunity to prepare
will be afforded, and it must 'set forth the alleged misconduct with particularity.' ”
In re Gault, 387 U.S. 1, Supreme Court 1967. Due process of law requires notice
In re Jason Childress Page 7 of 18
of the sort we have described – that is, notice which would be deemed
constitutionally adequate in a civil or criminal proceeding. It does not allow a
hearing to be held in which [] freedom [is] at stake without giving [] timely
notice, in advance of the hearing, of the specific issues that must be met. Nor, in
the circumstances of this case, can it reasonable be said that the requirement of
notice was waived. (Id.)
Petitioner was neither given notice, nor afforded opportunity to present objections to the
allegation(s) made against him. Petitioner cannot be expected to be able object to allegations not
made known to him.
“Service of process is the way in which the defendant gets notice of the claim
against him and its allegations. The Supreme Court has held that due process
requires “notice reasonably calculated, under the circumstances, to apprise the
interested parties of the pendency of the action and afford them the opportunity to
present their objections.” Mullane v. Central Hanover Bank & Trust Co., 339 U.S.
306, 314 (1950).
As a result of Petitioner not being provided notice of the hearing from which the Order
and Capias stem, the Order is constitutionally infirm, invalid and null and void, likewise is the
Capias. Further, a failure to set forth the alleged misconduct with particularity in said notice (see
Apx. Tab F), the Order and Capias are constitutionally infirm, invalid and null and void.
“'[U]nder our cases, a judgment entered without notice or service is
constitutionally infirm.' An elementary and fundamental requirement of due
process in any proceeding is notice reasonably calculated, under the
circumstances, to apprise the interested parties of the pendency of the action and
afford them the opportunity to present their objections.” Peralta v. Heights
Medical Center, Inc., 485 U.S. 80 (1988)); quoting Mullane v. Central Hanover
Bank & Trust Co. “Failure to give notice violates the most rudimentary demands
of due process” (Id.)
Petitioner was further denied due process in that he was denied the opportunity to be
heard, as a result of not being provided notice of the hearing from which the Order and Capias
stem. “A fundamental requirement of due process is the 'opportunity to be heard.” Grannis v.
Ordean, 234 U.S. 385, 394.
In re Jason Childress Page 8 of 18
[V]oid orders may be circumvented by collateral attack[]. Mapco, Inc. v. Forrest, 795
S.W.2d 700, 703 (Tex. 1990) (orig. proceeding).” Sanchez v. Hester, 911 S.W.2d. 173 – Tex:
Court of Appeals, 13th Dist. 1995. As stated supra, this petition is, inter alia, a collateral attack
on the Order and Capias, and same are void as a result of Petitioner being denied Due Process
resulting from a failure to provide notice and to set forth therein with particularity the alleged
misconduct, resulting in the court failing to secure personal jurisdiction over Petitioner for
purposes of the hearing from which the Order and Capias stem. “[T]he position adopted by the
Texas Supreme Court reflects the principle under Texas law that the orders of a court with no
jurisdiction over the parties or property are void.” See State v. Owens, 907 S.W.2d. 484, 485
(Tex. 1995) (per curiam); Thomas v. Miller, 906 S.W.2d. 260 (Tex.App.-Texarkana 1995) (orig.
proceeding); see also Browning v. Placke, 698 S.W.2d. 362, 363 (Tex. 1985) (orig. proceeding)
(comparing void and voidable judgments) Sanchez v. Hester, supra.
II. ISSUES THAT BAR PROSECTION AND CONVICTION
As stated and demonstrated supra, and by the Appendices attached hereto, and by the
silence of all involved and interested parties thereto, the trial court is without jurisdiction over
the underlying cause to the instant case. Without jurisdiction, the trial court is without power to
hear the underlying cause to the instant case and the prosecutor for the state and,or county,
ABIGAIL WHITAKER (Whitaker), is barred form prosecution and conviction of Petitioner for
the criminal allegation and cause against him. Even if the trial court had jurisdiction, the
allegation made against Petitioner is inapplicable thereto, under the circumstances.
A. Sec. 38.02. IS INAPPLICABLE UNDER THE CIRCUMSTANCES
T.P.C. Sec. 38.02. FAILURE TO IDENTIFY.
(a) A “person” commits an offense if he intentionally refuses to give his name,
In re Jason Childress Page 9 of 18
residence address, or date of birth to a peace officer who has lawfully arrested the
“person” and requested the information.
(d) If it is shown on the trial of an offense under this section that the defendant
was a “fugitive from justice” at the time of the offense, the offense is:
(1) a Class B misdemeanor if the offense is committed under Subsection
(a); or
T.P.C. Sec. 1.07. DEFINITIONS. (a) In this code:
(38) "Person" means an individual, corporation, or association.
The legal term “Person” falls under the following Doctrines of Statutory Interpretation
used by both the federal congress and state legislatures in drafting legislation, as well as the
federal and state judiciary departments to interpret legislation passed into law by the federal
congress and state legislatures:
Ejusdem Generis: Of the same kind, class, or nature. In the construction of laws,
wills, and other instruments, the "ejusdem generis rule" is, that where general
words follow an enumeration of persons or things, by words of a particular and
specific meaning, such general words are not to be construed in their widest
extent, but are to be held as applying only to persons or things of the same general
kind or class as those specifically mentioned. Black, Interp. of Laws, 141;
Goldsmith v. U. S., C.C.A.N.Y., 42 F.2d 133, 137; Aleksich v. Industrial Accident
Fund, 116 Mont. 69, 151 P.2d 1016, 1021. The rule, however, does not necessarily
require that the general provision be limited in its scope to the identical things
specifically named. Nor does it apply when the context manifests a contrary
intention. The maxim "ejusdem generis," is only an illustration of the broader
maxim, "noscitur a sod's." State v. Western Union Telegraph Co., 196 Ala. 570, 72
So. 99, 100. Black's Law, 4th Ed.
Noscitur a Sociis: It is known from its associates. 1 Vent. 225. The meaning of a
word is or may be known from the accompanying words. 3 Term R. 87; Broom,
Max. 588. Morecock v. Hood, 202 N.C. 321, 162 S.E. 730, 731; Louis Pizitz Dry
Goods Co. v. Fidelity & Deposit Co. of Maryland, 223 Ala. 385, 136 So. 800,
801. The doctrine means that general and specific words are associated with and
take color from each other, restricting general words to sense analogous to less
general. Dunham v. State, 140 Fla. 754, 192 So. 324, 325, 326. Black's Law, 4th
Ed.
Expressio unius est exclusio alterius: Expression of one thing is the exclusion of
another. Co.Litt. 210a; Burgin v. Forbes, 293 Ky. 456, 169 S.W.2d 321, 325;
Newblock v. Bowles, 170 Oki. 487, 40 P.2d 1097, 1100. Mention of one thing
In re Jason Childress Page 10 of 18
implies exclusion of another. Fazio v. Pittsburgh Rys. Co., 321 Pa. 7, 182 A. 696,
698; Saslaw v. Weiss, 133 Ohio St. 496, 14 N.E.2d 930, 932. When certain
persons or things are specified, in a law, contract, or will, an intention to exclude
all others from its operation may be inferred. Little v. Town of Conway, 171 S.C.
27, 170 S.E. 447, 448. Under this maxim, if statute specifies one exception to a
general rule or assumes to specify the effects of a certain provision, other
exceptions or effects are excluded, People v. One 1941 Ford 8 Stake Truck,
Engine No. 99T370053, License No. P.8410, Cal., 159 P.2d 641, 642. Black's
Law, 4th Ed.
Sec. 38.01. DEFINITIONS. In this chapter:
(5) "Fugitive from justice" means a person for whom a valid arrest warrant has been
issued.
As stated in Petitioners Countercomplaint (see Apx. Tab K pg.73 - 76, #168. - 171.), he
is not a “Person,” rather, he is a member of the people. Petitioner is neither a “Person,” nor was
he a “Fugitive from justice” and there is no evidence to the contrary.
In order for Sec. 38.02 (a) to be applicable, a “person” must first be “lawfully arrested”
before the “person” is required to “give his name, residence address, or date of birth.” Petitioner
is not a “person,” even if he is or was at the time, he was not lawfully arrested as he had not
committed an offense classed as a felony or as an offense against the public peace, or any other
offense, in the presence or within view of any of the officers (see Tex. C. Crim. Proc., Art. 14.01
& 14.03) of/for the NBPD involved in Petitioner's unlawful arrest. In fact, when the officers
of/for the NBPD arrived, Petitioner was being assaulted (see Apx. Tab J). Without committing
the aforementioned offenses in the presence or within view of those officers, Petitioner's arrest
was unlawful. Being that Petitioner had committed no offense and was unlawfully arrested, he
was not required to provide any identifying information contemplated within Sec. 38.02 to any of
the officers of/for the NBPD involved in his unlawful arrest, therefore, Sec. 38.02 is inapplicable
to Petitioner under the circumstances. Further, Whitaker cannot prove beyond a reasonable doubt
that the alleged offense Petitioner is accused of occurred while the officers of/for the NBPD were
In re Jason Childress Page 11 of 18
in the lawful discharge of their official duties. Considering all the evidence and lack thereof, it
follows that there is no proof that the officers were authorized to arrest Petitioner. Without such
evidence, the Whitaker cannot establish that the officers of/for the NBPD were lawfully
discharging their official duties. As there is no evidence showing Petitioner's arrest was lawful,
he had the right to refuse to provide any information to the officers of/for the NBPD involved in
his unlawful arrest. Accordingly, the conviction of Petitioner for the alleged offense is not
authorized by the evidence. The officers of/for the NBPD, as well as the prosecutor, would have
it believed that a “person,” or anyone for that matter, can be arrested without having committed
an offense, in absence of any warrant, and then be required to provide information to the
arresting officer(s). Such an event is not contemplated or condoned by Sec. 38.02.
In order for Sec. 38.02 (d) (1) to be applicable, it must be “shown on the trial of an
offense under [] section [38.02] that the defendant was a “fugitive from justice” at the time of the
offense.” A “trial” has not shown the Petitioner was “a fugitive from justice.” Further, and again,
there is no mention or evidence of an offense which Petitioner had committed giving rise to or
providing cause for his arrest, nor is there any evidence Petitioner was a “fugitive from justice,”
in fact, the record is bereft of any warrant for Petitioner, save the Capias challenged herein and
hereby. Furthermore, even if Petitioner had committed some offense and was lawfully arrested
by the officers of/for the NBPD, application of Sec. 38.02 (d) (1) would be premature in absence
of a “trial” to show that Petitioner was “a fugitive from justice.”
B. WITNESSES DISQUALIFIED
As demonstrated supra, and within the documents attached hereto, the officers of/for the
NBPD are disqualified as witnesses due to noncompliance and misconduct, false arrest and
violations of procedural due process and due course of law, as well as dishonesty and deceit by
In re Jason Childress Page 12 of 18
claiming Petitioner had been lawfully arrested while either failing or intentionally neglecting to
state for what offense Petitioner had been arrested for, in addition to, illegal seizure of property,
to wit: a video recording camera used by Petitioner to record the events leading up to his false,
unlawful arrest, which evidences Petitioner was unlawfully arrested and a false report had been
made against Petitioner: Jus ex injuria non oritur. “A right cannot arise from a wrong.” 4 Bing.
639.; Nemo punitur pro alieno delicto. “No one is to be punished for the crime or wrong of
another.”; Nullus commodum capere potest de injuri su propri. “No one shall take advantage of
his own wrong. Co. Litt. 148.”; Ubicunque est injuria, ibi damnum sequitur. “Where ever there is
a wrong, there damages follow.” 10 Co. 116.; Lex citius tolerare vult privatum damnum quam
publicum malum. “The law would rather tolerate a private wrong than a public evil.” Co. Litt.
152; see also Apx. Tab K pg.15 - 18, #31.
Pursuant to the federal and state Rules of Evidence (see Apx. Tab K pg.36 - 37, #81. -
84.) and case law (see Apx. Tab K pg.37 - 39, #85. - 86.), Whitaker is not a competent and
qualified witness due a lack of personal knowledge and status as a prosecutor. Ida Paniagua is
not a competent or qualified witness pursuant to the federal and state Rules of Evidence due to a
lack of personal knowledge (see Apx. Tab K pg.36 - 37, #83.). Whitaker, is barred from
prosecution of the allegation and charge against Petitioner, due the trial court's lack of
jurisdiction, lack of evidence that Petitioner had committed any crime, inapplicability of Sec.
38.02 to Petitioner and a lack of any credible witnesses thereagainstr, and conviction of him for
the alleged offense is barred as a result of a bar to prosecution.
PLEADING SHALL BE CONSTRUED TO DO JUSTICE
"Following the simple guide of rule 8(f) that all pleadings shall be so construed as
to do substantial justice"... "The federal rules reject the approach that pleading is a
game of skill in which one misstep by counsel may be decisive to the outcome
In re Jason Childress Page 13 of 18
and accept the principle that the purpose of pleading is to facilitate a proper
decision on the merits." The court also cited Rule 8(f) FRCP, which holds that all
pleadings shall be construed to do substantial justice. Conley v. Gibson, 355 U.S.
41 at 48 (1957)
"The assertion of federal rights, when plainly and reasonably made, are not to be
defeated under the name of local practice. Davis v. Wechler, 263 U.S. 22, 24;
Stromberb v. California, 283 U.S. 359; NAACP v. Alabama, 375 U.S. 449
Pro se pleadings are to be considered without regard to technicality; pro se
litigants' pleadings are not to be held to the same high standards of perfection as
lawyers. Jenkins v. McKeithen, 395 U.S. 411, 421 (1959); Picking v. Pennsylvania
R. Co., 151 Fed 2nd 240; Pucket v. Cox, 456 2nd 233
"Pleadings are intended to serve as a means of arriving at fair and just settlements
of controversies between litigants. They should not raise barriers which prevent
the achievement of that end. Proper pleading is important, but its importance
consists in its effectiveness as a means to accomplish the end of a just judgment."
Maty v. Grasselli Chemical Co., 303 U.S. 197 (1938)
The plaintiff's civil rights pleading was 150 pages and described by a federal
judge as "inept". Nevertheless, it was held "Where a plaintiff pleads pro se in a
suit for protection of civil rights, the Court should endeavor to construe Plaintiff's
Pleadings without regard to technicalities. Picking v. Pennsylvania Railway, 151
F.2d 240, Third Circuit Court of Appeals
It was held that a pro se complaint requires a less stringent reading than one
drafted by a lawyer per Justice Black in Conley v. Gibson (see case listed above,
Pro Se Rights Section). Puckett v. Cox, 456 F.2d 233 (1972) (6th Cir. USCA)
"... allegations such as those asserted by petitioner, however inartfully pleaded,
are sufficient to call for the opportunity to offer supporting evidence. We cannot
say with assurance that under the allegations of the pro se complaint, which we
hold to less stringent standards than formal pleadings drafted by lawyers... ".
Haines v Kerner, 404 U.S. 519 – 521, (1972)
"Court errs if court dismisses pro se litigant without instructions of how pleadings
are deficient and how to repair pleadings." Plaskey v. CIA, 953 F.2nd 25
Nowhere can be found a competent attorney that is able to execute the proper
remedy without embarrassing the Court, Corpus Juris Secundum 2d Vol. 7 section
25.
In re Jason Childress Page 14 of 18
REQUEST FOR RELIEF
For the reasons set forth herein, Petitioner, Jason Childress, requests that this Court grant
his Petition for Writ of Habeas Corpus and relieve Petitioner of his unlawful restraint resulting
from the void Capias.
Respectfully submitted,
/s/: Jason Childress
Jason Childress
9141 Gristmill Ct.
Fort Worth, Texas
jchildress1980@gmail.com
In re Jason Childress Page 15 of 18
VERIFICATION
Executed without the United States:
Pursuant to 28 U.S. Code § 1746 (a): I, Jason Truman Childress, Petitioner herein, in lieu
of Notarization of this document due to an inability to pay therefor, do declare, certify, verify
and state under penalty of perjury under the laws of the United States of America that I am a
living man, of lawful age and competent to testify to the facts stated herein, and that the facts and
statements made herein by me are true and correct.
/s/: Jason Childress
Executed on this 3rd day of August , 2015.
In re Jason Childress Page 16 of 18
CERTIFICAT E OF SERVICE
I, Jason Childress, Petitioner herein, hereby certify that a true and correct copy of this
Petition for Writ of Mandamus is being sent via email on this 3rd day of August , 2015 to
the following:
Charles A. Stephens
Comal County Court at Law 2
Comal County Courthouse Annex
150 N. Seguin, Ste. 301
New Braunfels, Texas 78130
Abigail Whitaker
Comal County District Attorney's Office
Comal County Courthouse Annex
150 N. Seguin Ave. Ste. 307
New Braunfels, Texas 78130
/s/: Jason Childress
Jason Childress
9141 Gristmill Ct.
Fort Worth, Texas
Submitting this 3rd day of August , 2015.
In re Jason Childress Page 17 of 18
NO.
In Re Jason Childress,
Petitioner
APPENDIX TO AND FOR PETITIONER'S PETITIONS
FOR WRIT OF HABEAS CORPUS AND WRIT OF MANDAMUS
List of Documents
1. “PR BOND”........................................................................................................ Tab B
2. Petitioner's Letter to Trial Court.............................................................................. Tab C
3. Trial Court Online Record Screenshot................................................................ Tab D
4. “COMPLAINT (OCA)”...................................................................................... Tab E
5. RETURNED NOTICE........................................................................................ Tab F
6. “AFFIDAVIT/FAILURE TO APPEAR”............................................................. Tab G
7. “ORDER FOR ARREST-FAILURE TO APPEAR”........................................... Tab H
8. “CAPIAS-FAILURE TO APPEAR”................................................................... Tab I
9. Affidavit for Countercomplaint........................................................................... Tab J
10. AFFIDAVIT OF COUNTERCOMPLAINT........................................................ Tab K
11. TABLE OF AUTHORITIES: POLICE REPORTS ARE HEARSAY................. Tab L
12. TABLE OF AUTHORITIES: LAW OF VOIDS IN TEXAS.............................. Tab M
13. Return Receipt: BOBBIE KOEPP....................................................................... Tab N
14. Return Receipt: Kevin M. Schoch....................................................................... Tab O
15. Return Receipt: TOM WIBERT........................................................................... Tab P
16. Return Receipt: ABIGAIL WHITAKER............................................................. Tab Q
17. DEMAND FOR DISMISSAL............................................................................. Tab R
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