Marzett, Robert ( 2017 )

No. PD-0071-17
IN THE COURT OF CRIMINAL APPEALS OF TEXAS
__________________________________________________________________
Robert E. Marzett,
Petitioner,
vs.
STATE OF TEXAS,
Respondent.
__________________________________________________________________
On petition for review from Cause No. 02-16-00043-CR in the SECOND
DISTRICT COURT OF APPEALS; Trial Court Cause No. CR-2014-01023-E
from COUNTY CRIMINAL COURT NO. 5, DENTON COUNTY, TEXAS
__________________________________________________________________
PETITION FOR DISCRETIONARY REVIEW
__________________________________________________________________
Robert E. Marzett
9720 Coit Road #220-16
Plano, Texas, 75025
March 28, 2017 214-868-8698
Remarzett@gmail.com
IDENTITY OF PARTIES
1. Petitioner:
Robert E. Marzett, sui juris
9720 Coit Road #220-116
Plano, Texas
(214) 868-8698
remarzett@gmail.com
2. Respondent:
STATE OF TEXAS
Catherine Luft
ASSISTANT DENTON COUNTY DISTRICT ATTORNEY
1450 East McKinney, Suite 3100
Denton, Texas 76209
ii
TABLE OF CONTENTS
IDENTY OF PARTIES & COUNSEL ………………………………..………...ii
INDEX OF AUTHORITIES …………………………………………..………..iii
STATEMENT OF THE CASE ……………………………………………...….vi
STATEMENT OF PROCEDURAL HISTORY …………………………...…viii
GROUNDS FOR REVIEW …………………………………………................ix
ARGUMENT AND REASONS FOR REVIEW…………………………………1
PRAYER ………………………………………………………………………20
CERTIFICATE OF SERVICE ………………………………………………..21
CERTIFICATE OF COMPLIANCE ………………………………………..…21
INDEX TO APPENDIX
iii
INDEX OF AUTHORITIES
CONSTITUTIONS
Constitution of the United States of America
U.S. Constitution, Fourth Amendment …………………………………….…..8,13
U.S. Constitution, Fifth Amendment ………………………………………...….18
U.S. Constitution, Fourteenth Amendment . ………………………………….…18
Federal Cases 18
Bose Corp. v. Consumers Union of United States, Inc.
466 U.S. 485, 514 n.31(1984) …………………………………………..…7
Heien v. North Carolina, 135 S. Ct. 530 ……………………………………...….8,9
Marbury v. Madison, 5 U.S. 137, 178 (1803)
…………………………………………….…2
Pierce v. Underwood, 487 U.S. 552, 558 (1988)
……………………………………….….6
Teague v. Lane, 489 U.S. 288, 300-01 …………………………………………...2
United States v. LaBonte, 520 U.S. 751,757 (1997)
…………………………………..…...5
Waller v. Florida, 397 U.S. 387 (1969) ………………………………................18
Texas Cases
Arguellez v. State, 409 S.W.3d 657, 663 (Tex. Crim. App. 2013) ………….……7
Bernard v. State, 481 S.W.2d 427, (1972) (RehearingDenied ….…………...18,19
Coit v. STATE OF TEXAS, 808 S.W.2d. 473, 475
(Tex.Crim.App. 1991) ……………………………………………..……..11
iv
Davis v. State, 329 S.W.3d 798, 815 (Tex. Crim. App. 2010) ……………….…16
Ex Parte Davis, 412 S.W.2d 46, 52 (Tex.Crim.App. 1967) …………………….11
Galbraith Eng'g Consultants, Inc. v. Pochucha, 290 S.W.3d 863,
867-68 (Tex.2009) ……………………………………………………..….4
Harris v. State, 827 S.W.2d 949, 955 (Tex. Crim. App. 1992) ……………...…16
In Re Smith, 333 S.W.3d 582, 586 Tex. 2011) ……………………………..……4
Kothe v. State, 152 S.W.3d 54, 62-63 (Tex. Crim. App. 2004) ……………….13
Lane v. State, 933 S.W.2d 504, 515 n.12
(Tex. Crim. App. 1996) (en banc) ……………………………………....11
Leland v. Brandal, 257 S.W.3d 204, 206 (Tex.2008) …………………………..4
Montgomery v. State, 810 S.W.2d 272, 291(Tex. Crim.
App. 1990) (op’n on rehearing) ……………………………………..…16
Parker v. State, 182 S.W.3d 923, 925 (Tex. Crim. App. 2006) ……………..…7
State v. Cullen, 195 S.W.3d 696, 699 (Tex. Crim. App. 2006) ……………....12
State v. Mendoza, 365 S.W.3d 666 (Tex. Crim. App. 2012) ……………...12,13
State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. App. 2004) …………........7,10
State v. Sheppard, 271 S.W.3d 281, 291-92 (Tex. Crim.
App. 2008). ref’d n. r. e.) ……………………………………………...12
Williams v. State, 253 S.W.3d 673, 677 (Tex. Crim. App. 2008) ……………..7
STATUTES
Texas Bills
Acts 1995, 74th Leg., Ch. 165, Senate Bill No. 971 …………………………….5
v
Texas Statutes
TC §502.040(a) ………………………………………………………………….9
TC §521.025 …………………………………………………..………………..17
TC §708.003……………………………………………...……………………...13
TC §708.052 ...…....…………………………………………………………….14
TC §708.103 ……………..……………………………………………………..14
TC §708.104 ……………………....……………………………………………14
TC §708.151 ………………………………………..…………………………..14
TC §708.152 ………………………………....…………………………………14
FEDERAL PULES OF EVIDENCE
Federal Rule of Evidence 201 ……………………………………..…………….3
TEXAS RULES
RULES OF EVIDENCE 201 ………………….……………………………….3
OTHER AUTHORITIES
Black’s Law Dictionary ………………………………………………….……3
Federalist. No. 78 ……………………………………………………………...2
John F. Manning, The Absurdity Doctrine, 116
HARV. L. REV. 2387, 2456–59 (2003) …………………………….…5
vi
STATEMENT OF THE CASE
Mr. Marzett was charged with operating a motor vehicle during a period
when his license or privilege to operate a motor vehicle was suspended or revoked
in the COUNTY CRIMINAL COURT NO. 5, DENTON COUNTY, TEXAS. He
filed pretrial motions to disqualify the trial judge, challenging the constitutional
qualifications and status of the trial judge; motion to suppress, challenging the
reasonableness of his seizure under the Fourth and Fourteenth amendments and the
Texas constitution, Art. 1 §9; motion to quash the information, challenging the
jurisdiction of the trial court to hear this case on multiple grounds; and a request
for judicial notice of the definition of the term “transportation.” All motions were
denied and he was convicted in a trial to the bench and sentenced to forty-five days
in jail, probated for twenty-four months, and to pay a $500 fine. The trial court also
imposed eight days confinement as a condition of community supervision.
Mr. Marzett timely appealed to the SECOND DISTRICT COURT OF
APPEALS and on appeal argued thirteen issues, all of which were based on
challenges to the trial court interpretation of the term “transportation,” as used to
express the subject matter of the TRANSPORTATION CODE. Appellant also
challenged the interpretation of specific terms defined by statute including “state,”
“state judge,” “local authority,” “police officer,” “person,” vehicle, motor vehicle,
vii
and “public highway.” Petitioner argued that these mistakes of law led the trial
COURT to incorrectly apply the law to the facts. This resulted in a conviction that
was not supported by a correct interpretation of the law. Appellant also renewed in
the COURT OF APPEALS, all the arguments that he made in the motions filed in
the trial court, all based on mistakes of law.
On September 29, 2016, the SECOND DISTRICT COURT OF APPEALS
issued a MENORANDUM OPINION affirming the conviction in the trial COURT.
STATEMENT OF PRECEDURAL HISTORY
On September 29, 2016, the SECOND DISTRICT COURT OF APPEALS issued
an unpublished opinion affirming Appellant’s conviction. On November 3, 2016,
Appellant timely filed a motion to extend time to file his motion for en banc
reconsideration. On November 10, 2016, the COURT granted Appellant’s motion
to extend time. On November 28, 2016, Appellant timely filed his motion for en
banc reconsideration. On December 8, the COURT denied Appellant’s motion for
en banc reconsideration. Appellant timely filed a motion to extend time to file his
petition for discretionary review. On January 26, 2017, The Court of Criminal
Appeals granted Appellant’s motion to extend time to file his petition for review.
This petition is due on March 27, 2017
viii
GROUNDS FOR REVIEW
1. Whether the COURT OF APPEALS applied the correct standard
of review on all questions of law raised by Appellant in his brief
when deciding this case?
2. Whether the trial court’s findings of fact are supported by a
correct interpretation of the TRANSPORTATION CODE?
3. Whether the trial court JUDGE abused its discretion based on a
correct interpretation of the TRANSPORTSTION CODE.
4. Whether Appellant was subjected to double jeopardy in this
prosecution?
INDEX TO APPENDIX
Exhibit A - SECOND COURT OF APPEALS JUDGMENT
Exhibit B - SECOND COURT OF APPEALS OPINION
Exhibit C - SECOND COURT OF APPEALS DENIAL EN BANC
ix
ARGUMENT AND REASONS FOR REVIEW
This case presents compelling reasons why the standard of review
used by the COURT OF APPELAS to review Appellant’s case was not the
correct standard. Appellant raised multiple questions of law regarding the
court’s interpretation of the TRANSPORTATION CODE. These mistakes of
law resulted in trial court that were fundamentally flawed. Discretionary
review is warranted in this case because the COURT OF APPEALS
completely failed in its responsibility to provide Appellant the correct
standard of review. This Court should conduct it own plenary review to
determine whether of not the findings of the trial COURT JUDGE are
supported by the context and the text of the TRANSPORTATION CODE.
1. Did the COURT OF APPEALS apply the correct standard of
review?
Appellant challenged the definition of the technical term
"transportation," as used to express the “activity” subject to regulation by
this code. Appellant challenged the interpretation of specific terms defined
by statute, including “state,” “STATE JUDGE,” “police officer,” “person,”
“vehicle,” “motor vehicle,” “operator” and any grammatical variation
thereof (operator, operating, operated, etc.), “drive” and any grammatical
variation thereof (driver, driving, driven, etc.) and “public highway.” These
terms must be interpreted in the context of “transportation.”
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No. PD-0071-17
Within the United State’s system of separated powers, judges have a
unique and dangerous role as the interpreters of the law. Although Congress
and the Executive have almost exclusive lawmaking, courts are charged with
applying that law, a task that itself can become law declarative. Cf Teague v.
Lane, 489 U.S. 288, 300-01 (plurality opinion) (recognizing judicial
decisions as embodying a generative law declaration power). To prevent
judges from slipping too far into that law declarative realm, textualism limits
their interpretive resources to the text of the statute and certain objective
tools for interpreting the text.
Hill and the trial JUDGE made “mistakes of law” interpreting the
definitions of these terms. Challenges to interpretation are “questions of
law.” Alexander Hamilton made a definitive statement in Federalist. No. 78
when he said, “The interpretation of the laws is the proper and peculiar
province of the courts.” This doctrine was repeated in Marbury v. Madison,
5 U.S. 137, 178 (1803), by Justice Marshall when he stated “It is
emphatically the province and duty of the judicial department to say what
the law is.” A clear definition would provide the context in which this code
should be interpreted. "Fair notice" of what is being regulated is a crucial
element of the modern rule of law. Textualism as fair notice emphasizes the
importance of interpreting laws as their subjects would fairly have expected
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No. PD-0071-17
them to apply. The traditional concept of fair notice demands that no Citizen
be held to account under a law the content of which he is unable to know
beforehand. Failure by the JUDGE to consider the context/subject matter,
potentially subjects Citizens to his own personal interpretation of the law,
rather than the actual text. When asked to take judicial notice of the
definition of “transportation,” taken from Black's Law Dictionary, the
JUDGE stated: (RR Vol. 3:11):
“Mr. Marzett, I am not willing to take judicial notice. I believe
those would be fact issues for the finder of facts. I’m not going
to invade the province of the jury, should this be a jury trial.
And I’m not going to comment, otherwise. If I made a ruling
now and it ends up that it is going to be a bench trial, I believe
I’m commenting on the weight of the evidence or making
rulings on that. I’m just not willing to do that. So that motion
will be denied.”
This statement proves the trial JUDGE refused to follow Texas Rule
of Evidence 201or Federal Rule of Evidence 201 by taking judicial notice of
the definition of this term which is generally known within the trial court’s
territorial jurisdiction and whose accuracy cannot reasonably be questioned.
The JUDGE provided “his own” definition of transportation by stating: “I
believe we can use the common definition of transportation, and I
understand that you have put different definitions that you’ve found. There
is also the definition, a way of traveling from place to place” (RR Vol.
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No. PD-0071-17
4:17:4-18:7). Considering the JUDGE cited a definition as did Appellant,
renders “transportation” to more than one interpretation. When there are
multiple interpretation, there is ambiguity; therefore the doctrine of lenity
should apply. In Re Smith, 333 S.W.3d 582, 586 Tex. 2011) (When
construing a statute, we begin with its language. "[W]e consider it ‘a fair
assumption that the Legislature tries to say what it means, and therefore the
words it chooses should be the surest guide to legislative intent.’” Leland v.
Brandal, 257 S.W.3d 204, 206 (Tex.2008) (quoting Fitzgerald v. Advanced
Spine Fixation Sys., Inc., 996 S.W.2d 864, 866 (Tex.1999)). But when
statutory language is susceptible to more than one reasonable interpretation,
we look beyond its language for clues to the Legislature's intended meaning.
See Galbraith Eng'g Consultants, Inc. v. Pochucha, 290 S.W.3d 863, 867-68
(Tex.2009) (referencing TEX. GOV'T CODE § 311.023).)
There was no showing that Citizens of Texas were given "fair notice"
of what activity is being regulated, which raises a question of law. The
COURT OF APPEALS answered this question of law by stating “Appellant
was convicted of DWLI. The definition of the term “transportation” is
irrelevant to any substantive issue. Appellant provided a proposed definition
of “transportation” that he insisted the trial court accept by taking judicial
notice. Appellant cites no relevant authority to support his argument. We
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No. PD-0071-17
overrule Appellant’s fifth issue.” This statement by the COURT OF
APPEALS is shocking and ignores the stated “subject matter” of this code as
expressed in the adopting Bill. Acts 1995, 74th Leg., Ch.165, S.B. No. 971,
1995 (“An Act relating to the adoption of a nonsubstantive revision of the
statutes relating to transportation.” (emphasis added).). The Legislature
intended for the TRANSPORTATION CODE to regulate “transportation.”
“Transportation” establishes the context by which this code should be
interpreted. The notion advanced by the COURT OF APPEALS that
“transportation” is irrelevant to any substantive issue” is alarming and raises
question regarding the competency of the COURT OF APPEALS to review
this case.
Furthermore, when the legislature defines a term within a code, the
courts are bound to interpret the term in light of the context and as defined
by the legislature; not as they think it should have been defined. See United
States v. LaBonte, 520 U.S. 751,757 (1997) (Using dictionaries to determine
the “ordinary meaning” of “maximum”). As prominent textualists have
explained, however, recourse to dictionary definitions typically does not
itself resolve the entire interpretive question — the defined word must still
be understood in its context. See, e.g., John F. Manning, The Absurdity
Doctrine, 116 HARV. L. REV. 2387, 2456–59 (2003).
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No. PD-0071-17
Under Texas law, when the issue turns on a question of law (i.e., the
trial court errs in applying the law), the proper standard of review is de novo.
Legal issues, such as probable cause, are reviewed de novo.. Similarly,
application of law-to-fact issues that do not turn on credibility and demeanor
are subject to de novo review.
Rights protected by the U.S. Constitution are at issue, therefore, the
U.S. Supreme Court’s judicial review of questions of law is controlling and
straightforward. Pierce v. Underwood, 487 U.S. 552, 558 (1988) (For
purposes of standard of review, decisions by judges are traditionally divided
into three categories, denominated questions of law (reviewable de novo),
questions of fact (reviewable for clear error), and matters of discretion
(reviewable for “abuse of discretion”).). Under de novo review, the appellate
court acts as if it were considering the question for the first time, affording
no deference to the decisions below. This is sometimes also called plenary
review or the "legal error" standard. It allows the appeals court to substitute
its own judgment about whether the lower court correctly applied the law.
The U.S. Supreme Court has said that de novo review occurs when a
reviewing court makes an original appraisal of all the evidence to decide
whether or not it believes [the conclusions of the trial court.] Bose Corp. v.
Consumers Union of United States, Inc. 466 U.S. 485, 514 n.31(1984).
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No. PD-0071-17
Appellant made the proper objections in the trial court to preserve
these questions of law for review. A complete record of the trial court
proceedings, including the CLERK’S RECORD and the REPORTER’S
RECORD is available for review.
It shocks the senses that a Citizen of the Union can be convicted in a
proceeding rife with mistakes of law, fundamental errors and abuses of
discretion, all of which have been preserved in the trial court record and not
reviewed de novo. This case involves Appellant's rights as a Citizen of a
Union state, therefore the U.S. Supreme Court’s standard of de novo review
should be applied. If de novo review reveals Appellant’s interpretation of the
TRANSPORTATION CODE is unreasonable, this Court can express why it
is unreasonable and why the arresting officer’s and the trial court Judge’s
interpretations are reasonable. De novo review is required to adress these
challenges: constitutionality of a statute; motion to quash, See State v. Moff,
154 S.W.3d 599, 601 (Tex.Crim.App. 2004); reasonable suspicion, See
Arguellez v. State, 409 S.W.3d 657, 663 (Tex. Crim. App. 2013); standing,
See Parker v. State, 182 S.W.3d 923, 925 (Tex. Crim. App. 2006); and
statutory construction, See Williams v. State, 253 S.W.3d 673, 677 (Tex.
Crim. App. 2008). Appellant made these challenges but did not receive de
novo review. This was fundamental error.
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No. PD-0071-17
2. Are the COURT OF APPEALS’ findings supported by a
correct interpretation of the TRANSPORTATION CODE?
In its Opinion, the COURT OF APPEALS used many statutory terms to
describe Appellant, his activities and his property. Appellant challenged
reasonable suspicion for his seizure under the state constitution and the Fourth
Amendment. Prior to the seizure, Hill made a legal conclusion that Appellant
was required to register his private property as a vehicle and display license
plates. Appellant challenged Hill’s interpretation of the law as a mistake of
law. The same standard applied by the U.S. Supreme Court in Heien v. North
Carolina, 135 S. Ct. 530 to determine the reasonableness of a seizure, should
have been applied to this case. Heien argued Darisse’s understanding that
Heien was required to have two working “stop lamps was based on a mistake
of law. The primary question rested on whether or not a “stop lamp” was
included in the term “rear lamps” or “other lamps.” The North Carolina Courts
disagreed on this issue but each expressed their understanding of the relevant
statutes. In deciding the case the Supreme Court stated:
“Here we have little difficulty concluding that the officer's error
of law was reasonable. Although the North Carolina statute at
issue refers to "a stop lamp," suggesting the need for only a
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No. PD-0071-17
single working brake light, it also provides that "[t]he stop lamp
may be incorporated into a unit with one or more other rear
lamps." N.C. Gen.Stat. Ann. § 20-129(g) (emphasis added). The
use of "other" suggests to the everyday reader of English that a
"stop lamp" is a type of "rear lamp." And another subsection of
the same provision requires that vehicles "have all originally
equipped rear lamps or the equivalent in good working order," §
20-129(d), arguably indicating that if a vehicle has multiple
"stop lamp[s]," all must be functional.” Heien v. North
Carolina, 135 S. Ct. 530, 540 (2014)
The U.S. Supreme Court concluded the Darisse made a mistake of law,
however, it was reasonable. The mistake was reasonable because the relevant
statutes could read to reasonably support the Darisse’s understanding. Hill’s
conclusion that Appellant was required to register or display license was
challenged in a pre-trial motion to Suppress (CR Vol. 1:80-100). The COURT
OF APPEALS did not even address Appellant’s motion to suppress. The
COURT conducted no examination of what the requirements are for
registration and displaying license plates. The COURT did not examine TC
§502.040(a) which states what entities are required to register and display
license plates or other terms that are statutorily defined and challenged. Hill
stated on cross-examination that he “Knew nothing about you [Appellant]
other than you were driving a white Suburban, date and time listed in the
report. That’s all I knew about you, sir” (RR Vol. 4:55:12-25). No articulable
knowledge that Appellant was required to display plates amounts to no
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No. PD-0071-17
reasonable suspicion.
Appellant also challenged other terms defined by statute including (1)
“state,” (2) “state judge,” (3) “person,” (4) “vehicle,” (5) “motor vehicle,” (6)
“operate” and any grammatical variation thereof (operator, operating,
operated, etc.), (7) “drive” and any grammatical variation thereof (driver,
driving, driven, etc.), (8) “police officer,” and “public highway.”
Use of these terms by Hill and the courts in conjunction with Appellant
raises questions of law and were challenged (CR Vol. 1:51-56, 80-100, 101-
119, 136-175 166-178). Motions to quash are reviewed de novo. State v. Moff,
154 S.W.3d 559, 601 (Tex.Crim.App. 2004) stated:
“The sufficiency of an indictment is a question of law. When
the resolution of a question of law does not turn on an
evaluation of the credibility and demeanor of a witness, then the
trial court is not in a better position to make the determination,
so appellate courts should conduct a de novo review of the
issue. While this case is different from Guzman in that it
involves the Appellee's due process right to notice of the
charges against him, our reasoning for modifying the standard
of review is the same. The trial court's decision in this case was
based only on the indictment, the motion to quash, and the
argument of counsel, so the trial court was in no better position
than an appellate court to decide this issue. Because the Court
of Appeals used an abuse of discretion standard of review, we
will conduct a de novo review of the trial court's ruling rather
than review the decision of the Court of Appeals.”
The COURT OF APPEALS did not examine the definition of a single
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No. PD-0071-17
statutory term or explain how that definition applied to Appellant, his activities
or his property. The COURTS OF APPEALS OPINION merely stated what
Hill testified to or what he “believed” or “felt” instead of what facts the trial
court actually found to be true. The trial COURT and the COURT OF
APPEALS should have interpreted all statutory terms as they were defined by
the legislature within the context of “transportation.”
“However, we have held that use of dictionary definitions of
words contained in the statutory langauge is part of the "plain
meaning” analysis that an appellate court initially conducts to
determine whether or not the statute in question is ambiguous.
[Lane v. State, 933 S.W.2d 504, 515 n.12 (Tex. Crim. App.
1996) (en banc)]
“With rare exceptions, courts must apply penal statutes exactly
as they read.” citing Ex parte Hayward, 711 S.W. 2d. 652, 655-
656 (ex.Crim.App. 1986); see 1 LaFave & Scott, Substantive
Criminal Law § 2.2(b)-(d) (1986). [Coit v. STATE OF TEXAS,
808 S.W.2d 473, 475 (Tex.Crim.App. 1991)]
“Where the statute is clear and unambiguous the Legislature
must be understood to mean what it has expressed, and it is not
for the courts to add or subtract from such a statute.” [Ex Parte
Davis, 412 S.W.2d 46, 52 (Tex.Crim.App. 1967)]
It is essential that courts correctly determine whether the issue at hand
is a fact issue or a legal issue. The distinction between the two is not always
an easy one. The Court of Criminal Appeals has recognized the problems
created when courts confuse “the apples of explicit factual findings with the
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No. PD-0071-17
oranges of conclusions of law,” and urged trial judges to make explicit fact
findings and credibility determinations to avoid speculation on appeal. State
v. Sheppard, 271 S.W.3d 281, 291-92 (Tex. Crim. App. 2008). ref’d n. r.
e.). In this case, Appellant requested explicit findings of fact and
conclusions of law from the trial COURT (CR Vol. 1:179-182), but it
refused to do so (CR Vol. 1:184). State v. Cullen, 195 S.W.3d 696, 699
(Tex. Crim. App. 2006), held that upon the request of the losing party on a
motion to suppress, the trial court must make findings of fact and
conclusions of law adequate to allow an appellate court to review the trial
court’s application of the law to the facts. Findings may be orally stated on
the record or in writing, served on the parties within 20 days of the trial
court’s ruling. Id. at 699-700. In State v. Mendoza, 365 S.W.3d 666 (Tex.
Crim. App. 2012), this Court reiterated that appellate courts should
determine what the trial court actually believed rather than what it may have
believed. Id. at 670-71. In that case, the trial judge included fact findings that
merely stated what various witnesses testified to or what they “believed” or
“felt” instead of what facts the trial court actually found to be true. The
Court of Criminal Appeals characterized these findings as “weasel words,”
which, when combined with “factual juxtapositions” within the findings
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No. PD-0071-17
created doubt that the judge “fully credited [the officer’s] version of events.”
Id. at 671.
Many issues involve mixed questions of law and fact, such as the
reasonableness of a detention. Kothe v. State, 152 S.W.3d 54, 62-63 (Tex.
Crim. App. 2004). The trial court determines what the facts are, and the
appellate court accepts those facts as true if supported by the record. But the
appellate court determines de novo whether the accepted facts establish that
the detention was reasonable, because ‘“reasonableness’ is ultimately a
question of substantive Fourth Amendment law.” Id. The record shows the
trial JUDGE incorrectly interpreted the “subject matter” and certain statutory
terms used in this code, and in so doing, incorrectly applied those terms to
the facts of this case.
The COURT OF APPEALS also found that there were three valid
suspensions of Appellant’s license at the time of this transaction. The
COURT cited a July 18, 2012 Surcharge default and suspension and two
suspensions on August 1, 2012. A review of the record shows one surcharge
default and suspension issued on July 19, 2012 and one suspension order
issued October 18, 2012. TC §708.003 states, “For purposes of this chapter,
a conviction for an offense to which this chapter applies is a final conviction,
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No. PD-0071-17
regardless of whether the sentence is probated.” TC §708.052 addresses the
assignment of points for certain convictions. TC §708.103 addresses
surcharges for conviction of driving while license invalid or without
financial responsibility. TC §708.104 addresses surcharges for conviction of
driving without a valid license. TC §708.151 addresses the requirement for a
first second and third notice of a surcharge. TC §708.152 states “FAILURE
TO PAY SURCHARGE. (a) If on the 60th day after the date the department
sends a second notice under Section 708.151 the person fails to pay the
amount of a surcharge on the person’s license or fails to enter into an
installment payment agreement with the department, the license of the
person is automatically suspended. A person’s license may not be suspended
under this section before the 105th day after the date the surcharge was
assessed by the department.”
These statutes establish that a valid suspension, must be supported by
a valid “final conviction,” and proof of the assessment and proper notice
under TC §708.151. TC §708.152 requires that a valid suspension cannot be
ordered before the 105th day after the date the surcharge was assessed. An
examination of the trial exhibits relied on by the trial COURT and the
COURT OF APPEALS shows there is not a “final conviction” to support the
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No. PD-0071-17
July 18, 2012 surcharge (RR Vol. 5) and no proof of notice to show 105
days has elapsed since the notice of a surcharge was issued. The record also
shows there is only one “order of suspension” dated October 18, 2012 (RR
Vol. 5). The October suspension references a conviction in the JUSTICE OF
THE PEACE COURT, CAUSE NO. 4TR1200765. This alleged conviction
was overturned in a trial de novo to the COLLIN COUNTY COURT AT
LAW #1, Case No. 001-85793-2012 (CR Vol. 1:42-43). This acquittal
occurred prior to the DISTRICT ATTORNEY filing any complaint and
information in the COUNTY CRIMINAL COURT NO. 5 (CR Vol. 1:16).
None of these facts have been disputed. There was no valid conviction,
surcharge or suspension upon which to base the instant charge.
Appellant’s license expired on June 20, 2008 by operation of law due
to lapse of time and was never suspended prior to expiration. Appellant
never renewed the license. Appellant challenged the validity of any
information and conviction based on any alleged surcharges or convictions.
The COURT OF APPELAS should not have accepted the findings of
the trial COURT and should have conducted its own de novo review of the
record to determine if those findings were correct. Failure to do so is
harmful reversible error and should be reviewed de novo.
Petition for Discretionary Review Page 15 of 25
No. PD-0071-17
3. Did The COURT OF APPEALS apply the correct standard
of review to the trial COURT’s abuse of discretion?
Appellant challenged the exercise of discretion by the trial JUDGE
because of his failure to correctly interpret and apply the
TRANSPORTATON CODE, resulting in a conviction that is clearly
erroneous. A ruling is clearly erroneous “when the reviewing court is left
with the firm conviction that a mistake has been committed.” See Harris v.
State, 827 S.W.2d 949, 955 (Tex. Crim. App. 1992). Reasonable minds can
differ on issues such as the relevance of a particular piece of evidence, and
“as long as the trial court’s ruling was at least within the zone of reasonable
disagreement,” the appellate court should not substitute its reasonable
perception for that of the trial judge. Montgomery v. State, 810 S.W.2d 272,
291(Tex. Crim. App. 1990) (op’n on rehearing). However, it explained,
“when it is clear to the appellate court that what was perceived by the trial
court as common experience is really no more than the operation of a
common prejudice, not borne out in reason, the trial court has abused its
discretion.” Ibid.; See, e.g., Davis v. State, 329 S.W.3d 798, 815 (Tex. Crim.
App. 2010) (“The trial court’s determination is accorded great deference and
will not be overturned on appeal unless it is clearly erroneous.”). A review
Petition for Discretionary Review Page 16 of 25
No. PD-0071-17
of the record shows that the trial COURT made rulings that were clearly
erroneous. Motion to disqualify Judge; judicial notice of the definition of
“transportation” (CR Vol. 1:51-56); admitting unreliable testimony from Hill
over Appellant’s objections (CR Vol. 4:44-47); finding the evidence
factually and legally sufficient to support conviction. All these rulings were
based on an incorrect interpretation of the TRANSPORTATION CODE and
were made arbitrarily and without any guiding principals. Such rulings
requires de novo review.
4. The Appellant was subjected to double jeopardy in this
prosecution?
In the trial Court and in the COURT OF APPEALS, Appellant argued
that this prosecution was barred by the doctrine of double jeopardy. This
transaction occurred on November 13, 2012 in the city of Frisco. Appellant
was charged in the CITY OF FRISCO MUNICIPAL COURT with failure to
display a license on demand under TC §521.025, Case No. 263490-1 (CR
Vol. 1:137). On August 5, 2013, Appellant was given a trial to the Bench
and acquitted in the CITY OF FRISCO MUNICIPAL COURT for failure to
display a license (Cr Vol. 1:138). A complaint and information were filed on
February 26, 2014 and an amended information on January 4, 2016,
charging Appellant with operating a motor vehicle with a suspended or
Petition for Discretionary Review Page 17 of 25
No. PD-0071-17
revoked license based on the November 13, 2013 transaction (CR Vol. 1:6-
7, 133-135).
Appellant challenges his conviction as double jeopardy by virtue of
his former acquittal for a lessor included offense, such being a violation of
the Fifth and Fourteenth Amendments to the Constitution of the United
States. Appellant also contends that the two offenses arose out of the same
transaction and were proven by the same evidence, a result which he argues
is incompatible with the decision of the Court of Criminal Appeals in
Bernard v. STATE, 481 S.W.2d. 427 (1972) (Rehearing Denied) and the
U.S. Supreme Court decision in Waller v. Florida, 397 U.S. 387, (1969).
In comparing the facts of Bernard’s case with Appellant’s, Bernard
was charged in a municipal court with failure to display a license and
convicted in said court. Appellant was charged in a municipal court with
failure to display a license and acquitted. Bernard was then charged in the
COUNTY COURT with operating a motor vehicle while his license was
suspended and was convicted. Applicant was charged in the COUNTY
CRIMINAL COURT #5 with operating a motor vehicle while his license or
privilege was suspended or revoked. It was further alleged that Appellant
operated a motor vehicle without financial responsibility and convicted.
Bernard and Appellant appealed claiming double jeopardy. In deciding
Petition for Discretionary Review Page 18 of 25
No. PD-0071-17
Bernard v. State, this Court of Criminal Appeals stated the following:
“We find that the prosecution of appellant, in County Criminal
Court at Law No. 1, was based on the same acts of appellant as
were involved in the municipal court conviction. The second
trial of appellant, under the holding of Waller v. Florida, supra,
constituted double jeopardy violative of the Fifth and
Fourteenth Amendments to the United States Constitution.”
STATE OF TEXAS filed a motion for rehearing arguing that
Bernard’s plea of former conviction was properly overruled. After
considering the argument, Judge Roberts made the following statement at
431.
“We hold only that, in light of Waller v. Florida, supra, a
judgment of acquittal or conviction in a court of competent
jurisdiction is a bar to a further prosecution for the same
offense, regardless of whether the first prosecution was had
upon complaint, information or indictment, and regardless of
whether the court in which the first prosecution was had was
without jurisdiction to try the higher grade of the offense”
The facts of Appellant’s case tracts almost exactly the facts of
Bernard’s case. This Court’s finding that Bernard was subjected to double
jeopardy is the same finding this Court should hold in Appellant’s case. The
judgment of conviction should be reversed and the prosecution ordered
dismissed.
Petition for Discretionary Review Page 19 of 25
No. PD-0071-17
PRAYER
The failure of the COURT OF APPEALS to conduct the appropriate
review has cause harm to Appellant as it was used to convict him.
Wherefore, appellant prays that the Court of Criminal Appeals will conduct
its own plenary review of the issues raised in the COURT OF APPEALS
and after review, reverse Appellant’s conviction and dismiss the charge
against appellant with prejudice.
Respectfully submitted,
/s/ Robert Earl Marzett
Robert Earl Marzett
Sui Juris, a natural person
All rights reserved without prejudice
9720 Coit Road #220-116
Plano, Texas
Tel. 214-868-8698
Petition for Discretionary Review Page 20 of 25
No. PD-0071-17
CERTIFICATE OF COMPLIANCE
1. This brief does not comply with the type-volume limitations on Tex. R.
App. P. 9.4(i)(2)(B) because it contains 4,407 words, excluding parts of the
brief exempted by Tex. R. App. P. 9.4(i)(1).
2. This brief complies with the typeface requirements of Tex. R. App. P.
9.4(e) because it has been prepared in a proportionally spaced typeface using
Microsoft Word for Mac version 14, in 14 point Times New Roman font with
12 point for footnotes.
/s/ Robert E. Marzett
Robert E. Marzett
CERTIFICTE OF SERVICE
This is to certify, pursuant to Tex. R. App. P 9.5, on this the 27th day of
March, 2017, a true and correct copy of the above and foregoing instrument
was served upon appellee’s counsel of record by eserve.
Catherine Luft
ASSISTANT DENTON COUNTY DISTRICT ATTORNEY
1450 East McKinney, Suite 3100
Denton, Texas 76209
Petition for Discretionary Review Page 21 of 25
No. PD-0071-17
INDEX TO APPENDIX
Exhibit A - SECOND COURT OF APPEALS JUDGMENT
Exhibit B - SECOND COURT OF APPEALS OPINION
Exhibit C - SECOND COURT OF APPEALS DENIAL EN BANC
Petition for Discretionary Review Page 22 of 25
No. PD-0071-17
Exhibit A - SECOND COURT OF APPEALS JUDGMENT
Petition for Discretionary Review Page 23 of 25
No. PD-0071-17
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-16-00043-CR
Robert Marzett § From County Criminal Court No. 5
§ of Denton County
§ (CR-2014-01023-E)
v.
§ September 29, 2016
§ Per Curiam
The State of Texas § (nfp)
JUDGMENT
This court has considered the record on appeal in this case and holds that
there was no error in the trial court’s judgment. It is ordered that the judgment of
the trial court is affirmed.
SECOND DISTRICT COURT OF APPEALS
PER CURIAM
Exhibit B - SECOND COURT OF APPEALS OPINION
Petition for Discretionary Review Page 24 of 25
No. PD-0071-17
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-16-00043-CR
ROBERT MARZETT APPELLANT
V.
THE STATE OF TEXAS STATE
----------
FROM COUNTY CRIMINAL COURT NO. 5 OF DENTON COUNTY
TRIAL COURT NO. CR-2014-01023-E
----------
MEMORANDUM OPINION1
----------
After a bench trial, the trial court convicted Appellant Robert Marzett of
driving while his license was invalid (DWLI), enhanced under section 521.457 of
the Texas Transportation Code,2 and sentenced him to serve forty-five days in
jail, probated for twenty-four months, and to pay a $500 fine. The trial court also
1
See Tex. R. App. P. 47.4.
2
See Tex. Transp. Code Ann. § 521.457 (West 2013).
imposed eight days’ confinement as a condition of community supervision. In
thirteen issues, Appellant challenges his conviction and sentence. Because the
trial court committed no reversible error, we affirm the trial court’s judgment.
Brief Facts
On November 13, 2012, Officer Colby Hill was on patrol in Frisco, Texas,
when a white Chevy Suburban without license plates drove past him. Hill
initiated a traffic stop for the offense of driving without a license plate. Appellant,
who was the driver of the Suburban, told Hill that he did not have a driver’s
license or insurance. Hill also observed that Appellant’s vehicle had neither a
registration nor an inspection sticker. Appellant attempted to explain to Hill that
ordinary traffic laws and regulations do not apply to him. Appellant presented his
passport, and the officer was able to identify Appellant by it. Hill determined that
Appellant’s license had expired in 2008, that it was not eligible for renewal, and
that it had been suspended numerous times. One suspension began on July 18,
2012, and was indefinite; two other suspensions began on August 1, 2012—one
was indefinite and the other lasted through May 15, 2014. Because Appellant
was driving while his driving privilege was suspended and because he was
operating the Suburban without financial responsibility, Hill arrested him for
enhanced DWLI.
Disqualification or Recusal of Trial Judge
In his first issue, Appellant argues that the trial judge erred by failing to
disqualify himself. Appellant argues that the trial judge “did not sit as a judicial
2
officer of the de jure government of the Texas Republic enforcing its general
laws.” He does not direct us to a specific place in the record, nor does he cite
authority for this proposition; we are aware of no law supporting this argument.3
If he is arguing that the trial judge was disqualified under the law as it exists,
there are only three grounds for the disqualification of a judge: the judge served
as a lawyer in the matter in controversy, the judge knows he has an interest in
the subject matter, or the judge is related to one of the parties.4 The record
reflects no ground for disqualification.
If Appellant means that the trial judge should have recused himself from
Appellant’s case, the grounds for recusal are also found in the procedural rules.5
The trial court referred Appellant’s motion to the Presiding Judge of the Eighth
Administrative Judicial Region for a decision. The Presiding Judge denied
Appellant’s motion without a hearing because it failed to state proper grounds for
recusal and failed to state facts which would justify recusal. Appellant does not
complain of the lack of hearing. Based on the record before us and considering
3
See Tex. R. App. P. 38.1(i); Lucio v. State, 351 S.W.3d 878, 896 (Tex.
Crim. App. 2011) (citing cases), cert. denied, 132 S. Ct. 2712 (2012); see also
Marzett v. State, Nos. 05-14-01570-CR, 05-14-01571-CR, 05-14-01611-CR, 05-
14-01612-CR, 2015 WL 3451960, at *3 (Tex. App.—Dallas May 29, 2015, pet.
ref’d) (mem. op., not designated for publication).
4
Tex. R. Civ. P. 18b(a); Arnold v. State, 853 S.W.2d 543, 544 (Tex. Crim.
App. 1993).
5
Tex. R. Civ. P. 18b(b); Gaal v. State, 332 S.W.3d 448, 452–53 (Tex. Crim.
App. 2011).
3
Appellant’s complaint as voiced and as we understand it, we hold that Appellant’s
complaint was properly overruled. Consequently, we overrule Appellant’s first
issue.
Sufficiency of the Evidence
In his eleventh issue, Appellant argues that the evidence is insufficient to
support his conviction. He appears to argue that because he believes Officer Hill
lacked legal training in Appellant’s interpretation of statutory terms such as
“person,” “operating,” “vehicle,” “motor vehicle,” “public highway,” and “state,” and
because his license had expired before it was suspended, among other similar
arguments, the evidence was insufficient to support his conviction.
In our due-process review of the sufficiency of the evidence to support a
conviction, we view all of the evidence in the light most favorable to the verdict to
determine whether any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.6 This standard gives full play
to the responsibility of the trier of fact to resolve conflicts in the testimony, to
weigh the evidence, and to draw reasonable inferences from basic facts to
ultimate facts.7 The State was required to prove that Appellant operated a motor
6
Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979).
7
Id.; Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App.), cert. denied,
136 S. Ct. 198 (2015).
4
vehicle on a highway when his driver’s license or privilege was suspended or
revoked.8
Based on the facts of this case, the sufficiency of the evidence to support
Appellant’s conviction does not turn on whether Officer Hill agreed with
Appellant’s interpretation of the controlling law. The trial judge, not the witness,
rules on issues of law and, as trier of fact in this case, determines issues of fact.9
Appellant has also raised this unique interpretation of law dealing with license
suspensions in appealing his Dallas case. As the State points out,
The [Dallas] court rejected Appellant’s argument and noted that “the
record shows appellant’s license was expired and suspended.” It
held the evidence was sufficient and that Appellant failed to support
his argument with citations to the record or any relevant authority.
[Citations omitted.]
Officer Hill saw Appellant driving a Chevy Suburban on Panther Creek Parkway,
a public roadway in Frisco. Appellant did not have a valid license because his
license had been suspended multiple times, had expired, and was not eligible for
renewal. The evidence here is sufficient to support Appellant’s DWLI conviction.
We overrule Appellant’s eleventh issue.10
8
See Tex. Transp. Code Ann. § 521.457(a) (West 2013).
9
See Joseph v. State, 897 S.W.2d 374, 376 (Tex. Crim. App. 1995).
10
See Marzett, 2015 WL 3451960, at *3–4.
5
Choice of Law
In his second issue, Appellant argues, “The COURT erred as a matter of
law in applying the TC [transportation code] as the choice of law.” Appellant
seems to argue that he must voluntarily consent to subject himself to the
transportation code in order for the law to apply to him. To the extent that we can
understand Appellant’s argument, it is unsupported by law. Saying it, even under
oath, does not make it so. The law that Appellant cites in purported support of
his position is inapposite. We overrule Appellant’s second issue.11
Probable Cause for Original Stop
In his third issue, Appellant contends that the trial court erred as a matter
of law when it concluded that his warrantless seizure was reasonable. He
argues that Officer Hill misunderstood the law he relied on to justify the stop.
Appellant states in his brief,
In order to support HILL’s suspicion that appellant was required to
display license plates on his private property, prior to seizing
Appellant, he would have to possess specific knowledge that
Appellant was a statutory “person,” who had purchased a statutory
“vehicle” in the “thirty days” prior to this transaction or that Appellant
was a “resident” of the statutory “state.” Hill’s suspicion was based
solely on his visual observation of no license plate and his subjective
interpretation of the TC. Without specific articulable facts that
appellant met one of the requirements for registration, Hill was
without a legal or factual basis to support his conclusion that
appellant was required to display license plates.
11
See Marzett, 2015 WL 3451960, at *4.
6
Appellant cites no relevant authority to support his apparent contention that a
police officer is required to disprove all possible defenses to commission of an
offense before the officer can stop a person the officer sees committing the
offense. A peace officer may arrest without a warrant a person he sees
committing an offense in his presence.12 Officer Hill saw Appellant operate an
unlicensed motor vehicle in a public place. Texas law requires vehicles driven on
public roads to display two license plates.13 Officer Hill had probable cause to
arrest Appellant for the offense he observed Appellant commit.14 We overrule
Appellant’s third issue.
Jurisdiction of Trial Court
In his fourth issue, Appellant argues that the trial court lacked jurisdiction to
try his case “because the subject matter, territorial and personal jurisdiction of the
COURT has not been properly invoked.” He appears to argue that the
transportation code applies only to commercial transportation, that the State is
not the state, and that he has not been shown to be a person. If he has
additional argument, it is not intelligible to us. Nor does he cite any relevant
12
Tex. Code Crim. Proc. Ann. art. 14.01(b) (West 2015).
13
Tex. Transp. Code Ann. § 504.943(a) (West Supp. 2016).
14
See State v. Gray, 158 S.W.3d 465, 469–70 (Tex. Crim. App. 2005).
7
authority in support of what we perceive as his argument. We overrule
Appellant’s fourth issue.15
Judicial Notice of the Meaning of the Term “Transportation”
In his fifth issue, Appellant argues, “The COURT abused its discretion
when it denied Appellant’s request for judicial notice of adjudicative facts in
establishing on the record the definition of the term ‘transportation.’” Appellant
was convicted of DWLI. The definition of the term “transportation” is irrelevant to
any substantive issue. Appellant provided a proposed definition of
“transportation” that he insisted the trial court accept by taking judicial notice.
Appellant cites no relevant authority to support his argument. We overrule
Appellant’s fifth issue.16
Sufficiency of the Information
In his sixth issue, Appellant challenges the sufficiency of the information
filed in this case because
[t]here is no allegation in the State’s Amended Information which
specific entity Appellant is alleged to be considering there are
multiple entities included in the meaning of the statutory term
“person” as defined by TC §541.001(4). [Record citation omitted.]
Appellant argues that this purported error is fundamental.
In the trial court, he filed a motion to quash the information. After raising
many challenges in the motion that he raises on appeal concerning the meaning
15
See Marzett, 2015 WL 3451960, at *5.
16
See id. at *4–5.
8
of person, jurisdiction of the court, and fraudulence of the supporting affidavit,
Appellant summarized his argument:
The arguments in this brief [sic] show that this information
never should have been filed. Defendant’s license expired over four
years prior to this seizure. Any competent investigation would have
revealed this fact. The DISTRICT ATTORNEY knows or should
know that there is no lawful authority to suspend, revoke or cancel a
license that has expired. The primary responsibility of the DISTRICT
ATTORNEY’s office is “justice” not a conviction. Filing of this
information and complaint by the DISTRICT ATTORNEY is really the
criminal act. The DISTRICT ATTORNEY’s office and Bolding had
no reason to believe that the allegations in the complaint and
information was true. This was not an attempt to get justice. This is
attempt to get a conviction at any cost, including filing a fraudulent
affidavit. DENTON COUNTY is relying on an incorrect interpretation
of this code.
In his seventh issue, Appellant contends that the “information in the instant
case does not allege all the elements of an offense under [section 521.457] that
are necessary to be proved and is therefore void.” He particularly asserts that
the elements of DWLI include “transportation activity” and “statutory ‘person.’”
We have endeavored to divine these two complaints before this court and
any related complaint raised in the trial court. As we understand Appellant’s
arguments, we hold that the trial court did not reversibly err by denying his
motion to quash the information, nor is the information fundamentally defective, if
this is an argument that he raises. Appellant had adequate notice to prepare his
defense.17 He does not complain that he was denied adequate discovery.
Rather, he appears to have a fundamental disagreement with Texas courts’
17
See Adams v. State, 707 S.W.2d 900, 903 (Tex. Crim. App. 1986).
9
interpretation of our laws and the language of our laws. The information provides
sufficient notice to Appellant of the charges against him and sufficiently alleges
the elements of the offense charged.18 We overrule Appellant’s sixth and
seventh issues.
Constitutionality of Statute
In his eighth issue, Appellant challenges the trial court’s holding that the
“application of the TC [transportation code] to appellant’s private travel was not
unconstitutional ‘as applied.’” We set out his argument in its entirety,
When reviewing an attack upon the constitutionality of a
statute, we begin with the presumption that the statute is valid and
the legislature has not acted unreasonably or arbitrarily. The party
challenging the constitutionality of a statute bears the burden of
establishing that it is unconstitutional. It is a basic principle of due
process that a statute is void for vagueness if its prohibitions are not
clearly defined. Due process requires criminal laws to be defined so
that (1) fair notice is given to ordinary persons as to what conduct is
forbidden; and (2) definite standards are established to prevent
arbitrary and discriminatory enforcement by police, judges, and
juries.
Appellant has challenged and continues to challenge the
constitutionality of the TC, “as applied” to appellant. In this case the
PROSECUTOR is attempting to apply provisions of the TC to activity
that is not expressed in the title of the act. This violates the Tex.
Const., Art. III §35. “Transportation” is the expressed subject matter
of the TC. This code cannot be applied to any activity outside the
expressed subject matter of “transportation.” This complaint
contains no specific allegation that appellant was transporting or
drawing persons or property on a public highway of a TC “state.”
Any attempt to apply this code to activity not expressed in the title of
the bill is an “as applied” violation of the Const. of Texas, Art. III.,
§35. [Citations and footnote omitted.]
18
See Duron v. State, 956 S.W.2d 547, 550–51 (Tex. Crim. App. 1997).
10
We deduce that Appellant’s complaint is founded in his convictions that the
transportation code must be interpreted as applying to commercial activities and
that the words used to define the statute he complains of must be defined as he
has defined them. Additionally, he appears to insist that he must voluntarily
submit to the authority of the statute. If we have correctly gleaned Appellant’s
arguments, they are not supported by relevant authority.19 We overrule
Appellant’s eighth issue.
Officer Hill’s Use of Technical Terms
In his ninth and tenth issues, Appellant argues that the trial court “erred as
a matter of law and abused its discretion by admitting the testimony of Hill’s use
of technical terms” and by not striking his testimony. Although Appellant does
not specify in his brief the objectionable terms he complains of, the record shows
that at trial he complained of Officer Hill’s use of terms such as “vehicle,”
“operator,” “motor vehicle,” and “driver.” The State points out that
[t]hese two issues were litigated by Appellant in his previous DWLI
case. The Dallas court overruled his points, noting that he had failed
to cite relevant authorities to support his definitions of the specified
terms. It also held that the trial judge was the sole judge of the
witnesses’ credibility and was free to accept or reject any evidence
presented by either side. [Citations omitted.]
Similarly, Appellant relies on cases and arguments dealing with
legislatively defined legal concepts and standards. Appellant has failed to
19
See Marzett, 2015 WL 3451960, at *1, *4.
11
support his argument with relevant authorities. We overrule Appellant’s ninth and
tenth issues.20
Constitutionality of Transportation Code
In his twelfth issue, Appellant challenges the constitutionality of the
transportation code. He argues that the Sovereign People cannot be held to
answer to an ambiguous law. He contends that the transportation code is
unconstitutionally vague because the “COURT” and the “STATE OF TEXAS”
have refused to provide a definition for the term “transportation” and have
refused to notice the definitions of the terms “transportation” and “travel” provided
by Appellant. But Appellant provides no relevant authority to support this
argument. We overrule Appellant’s twelfth issue.21
Double Jeopardy
In his thirteenth and final issue, Appellant argues that his conviction
constitutes double jeopardy because he was acquitted of an included offense,
failure to exhibit a license, in the Municipal Court of Frisco, Texas. The Double
Jeopardy Clause of the Fifth Amendment of the United States Constitution
provides that no person shall be subjected to twice having life or limb in jeopardy
for the same offense.22 Generally, this clause protects against (1) a second
20
See id. at *6.
21
See id. at *4.
22
U.S. Const. amend. V.
12
prosecution for the same offense after acquittal, (2) a second prosecution for the
same offense after conviction, and (3) multiple punishments for the same
offense.23
When the two prosecutions are for distinct statutory provisions, both an
“elements” analysis and a “units” analysis should be conducted to determine
whether they are for the same offense.24 An elements analysis asks whether one
statute “requires proof of a fact” which the other does not.25 If the elements
differ, then the second prosecution presumptively is not jeopardy-barred because
it is not for the same offense.26
Appellant argues that his prosecution and acquittal for failure to display a
license from the same incident bars prosecution of the DWLI case now before
this court. A Blockburger analysis resolves this question and shows that the two
prosecutions are not for the same offense. Section 521.025 requires a driver to
have the appropriate license in his possession while driving and to display it on
the demand of a peace officer.27 The only element DWLI, governed by section
23
Brown v. Ohio, 432 U.S. 161, 165, 97 S. Ct. 2221, 2225 (1977); Ex parte
Cavazos, 203 S.W.3d 333, 336 (Tex. Crim. App. 2006).
24
Ex parte Benson, 459 S.W.3d 67, 71 (Tex. Crim. App. 2015).
25
Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 182
(1932).
26
Id.
27
Tex. Transp. Code Ann. § 521.025(a) (West 2013).
13
521.457, and failure to display a license have in common is operating a vehicle.28
To prove either of the offenses involves proof of a number of facts that the other
does not—for example, DWLI does not require proof that the defendant failed to
display his license.29 Appellant has done nothing to demonstrate contrary
legislative intent.30 We consequently hold that the prosecution and conviction of
Appellant in this case did not violate his rights to be free from double jeopardy.
We overrule Appellant’s thirteenth issue.
Conclusion
Having overruled Appellant’s thirteen issues, we affirm the trial court’s
judgment.
PER CURIAM
PANEL: DAUPHINOT, WALKER, and MEIER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: September 29, 2016
28
Compare id. § 521.025(a)(1), with id. § 521.457(a)–(b).
29
Compare id. § 521.025(a)(1), with id. § 521.457(a)–(b).
30
See Benson, 459 S.W.3d at 72 n.18.
14
Exhibit C - SECOND COURT OF APPEALS DENIAL EN BANC
Petition for Discretionary Review Page 25 of 25
No. PD-0071-17
FILE COPY
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-16-00043-CR
ROBERT MARZETT APPELLANT
V.
THE STATE OF TEXAS STATE
------------
FROM COUNTY CRIMINAL COURT NO. 5 OF DENTON COUNTY
TRIAL COURT NO. CR-2014-01023-E
------------
ORDER
------------
We have considered “Appellant’s Motion for En Banc Reconsideration”
filed by appellant Robert Marzett, pro se.
It is the opinion of the court that the motion for en banc reconsideration
should be and is hereby denied and that the opinion and judgment of September
29, 2016, stand unchanged.
The clerk of this court is directed to transmit a copy of this order to the
appellant and attorneys of record.
DATED December 8, 2016.
PER CURIAM
EN BANC
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Case # PD-0071-17
Case Information
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Date Filed 03/27/2017 10:09:55 AM
Case Number PD-0071-17
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Filed By Robert Marzett
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Status Rejected
Fees
Court Fee $0.00
Service Fee $0.00
Rejection Information
Rejection Time Rejection Comment
Reason
03/28/2017 The petition for discretionary review does not contain the identity of Judge, Parties
https://reviewer.efiletexas.gov/EnvelopeDetails.aspx?envelopeguid=c4719fbe-458b-45e2-8654-28db25798243[3/28/2017 3:03:50 PM]
Envelope Details
Other 03:02:08 and Counsel [Rule 68.4(a)]; it is missing the identity of the trial court judge. You
PM have ten days to tender a corrected petition for discretionary review.
Documents
Lead Document CCA Review.pdf [Original]
eService Details
Date/Time
Name/Email Firm Service Type Status Served
Opened
DENTON
Catherine Luft COUNTY 03/27/2017
EServe Sent Yes
catherine.luft@dentoncounty.com DISTRICT 10:10:46 AM
ATTORNEY
https://reviewer.efiletexas.gov/EnvelopeDetails.aspx?envelopeguid=c4719fbe-458b-45e2-8654-28db25798243[3/28/2017 3:03:50 PM]