Robert Earl Marzett v. State

 No. 05-15-00148-CR _ o ££ eft — '-" S3 -5= IN THE s: ir5 R l 33 j3 4= COURT OF APPEALS -o FIFTH DISTRICT OF TEXAS at DALLAS rn i— CO O^ Robert E. Marzett, Appellant, STATE OF TEXAS Appellee, Appealed from COLLIN COUNTY COURT AT LAW #1 COLLIN COUNTY, TEXAS No. 001-83797-2014 Appellant's Brief Robert E. Marzett 9720 Coit Road #220-116 Piano, Texas 75025 214-868-8698 remarzett@gmail.com Appellant's Brief No. 05-15-00148-CR No. 05-15-00148-CR IN THE COURT OF APPEALS FIFTH DISTRICT OF TEXAS at DALLAS Robert E. Marzett, Appellant, STATE OF TEXAS Appellee, Appealed from COLLIN COUNTY COURT AT LAW #1 COLLIN COUNTY, TEXAS No. 001-83797-2014 Appellant's Brief Robert E. Marzett 9720 Coit Road #220-116 Piano, Texas 75025 214-868-8698 remarzett@gmail.com Appellant's Brief No. 05-15-00148-CR No. 05-15-00148-CR Robert E. Marzett, Appellant STATE OF TEXAS, Appellee IDENTY OF PARTIES & COUNSEL 1. Defendant/Appellant Robert E. Marzett 9720 Coit Road #220-116 Piano, Texas 214-868-8698 remarzett@gmail.com Plaintiff/Appellee STATE OF TEXAS COLLIN COUNTY DISTRICT ATTORNEY 2100BloomdaleRd. McKinney, Texas 75071 Appellant's Brief jj No. 05-15-00148-CR TABLE OF CONTENTS IDENTITY OF PARTIES & COUNSEL ii TABLE OF CONTENTS in INDEX OF AUTHORITIES iv STATEMENT ON ORAL ARGUMENT x STATEMENT OF THE CASE x ISSUES PRESENTED xi STATEMENT OF FACTS ! SUMMARY OF THE ARGUMENT 5 STANDARD OF REVIEW 8 ARGUMENT AND AUTHORITIES 9 CONCLUSION 67 PRAYER 67 CERTIFICATE OF COMPLIANCE 68 CERTIFICATE OF SERVICE 68 Appellant's Brief jjj No. 05-15-00148-CR INDEX OF AUTHORITIES CONSTITUTIONS United States of America U.S. Constitution, Art. 1 51 U.S. Constitution, Art. II 51 U.S. Constitution, Art. Ill 51 U.S. Constitution, Art. I. §8, cl. 17 38,44 U.S. Constitution, Art. I, §10, cl. 1 39 U.S. Constitution, Art. IV, §3, cl. 2 38,44 US. Constitution, Amend. IV 5,6,10,25,26,28,35 US. Constitution, Amend. VI 52,55,57,58 Constitution of Texas Texas Constitution, Art. I, §9 5,26,33,35 Texas Constitution, Art. I, §10 39,52 Tex. Constitution, Art. II, §1 50 Texas Constitution, Art. Ill § 35 43,59,64 Texas Constitution, Art. V. §12(b) 47,56 CASES Federal Atwaterv. City ofLago Vista, 532 U.S. 318 (2001) 12,23 Bryan v. United States, 524 U.S. 184(1998) 16 Davis v United States, 131 S. Ct. 2419 (2011) 19 Appellant's Brief jv No. 05-15-00148-CR Delaware v.Prouse, 440 U.S. 64% (1979) 10,12,22 Florence v. Bd. ofChosen Freeholders, 132 S. Ct. 1510 (2012) 23 Giaccio v. Pennsylvania, 382 U.S. 399 (1966) 17 Heienv. NORTH CAROLINA, 135 S.Ct. 530 (2014) 11,28,29 Hepburn &Dundas v. Ellzy, 6U.S. 445, 452(1805) 36,37 International Shoe Co. v. Washington, 326 U.S. 310 (1985) 49 Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009) 12 Marylandv.King, 133 S.Ct. 1958(2013) 23 Navarettev. California, 134 S. Ct. 1683 (2014) 22 NewYorkv. United States Et. AL., 505 U.S. 144(1992) 39 Northrup v. CITY OF TOLEDO POLICE DEPARTMENT, UNITED STATES COURT OF APPEALS, No. 14-4050 (May 13, 2015) 33,34 Ogdenv.Slade, 1Tex. 13 (184 39 Ornelasv. United States, 517 U.S. 690 (1996) 11 Papachristou v. City ofJacksonville, 405 U.S. 156 (1972) 58 Pennoyer v. Neff 95 U.S. 714, 722-724 (1877) 49 Pennsylvania v. Mimms, 434 U.S. 106(1977) 23 Prince v. United States, 521 U.S. 898, 918-922 (1997) 51 Reynolds v. United States, 98 U.S. 145 (1878) 19 Terryv. Ohio,392U.S. 1(1968) 12,13,23 [7^^^^^.5^,404^8.336(1971) 17 United States v. Bevans,\6\J.S.(3 Wheat.) 338, (1818) 38 United States v. Chanthasouxat, 342 F.3d 1271 (1 lth Cir. 2003) 16,19 United States v. Davis, 598 F.3d 1259 Appellant's Brief No. 05-15-00148-CR (1 lth Cir. 2010), affd, 131 S.Ct. 2419 (2011) 19 UnitedStates v. Johnson, 457 U.S. 537(1982) 19 United States v.Lanier, 520 U.S. 259 (1997) 17,60 United States v. Lopez- Soto, 205 F.3d 1101 (9th Cir. 2000) 19,20 United States v. McDonald, 453 F.3d 958 (7th Cir. 2006) 19 United States v. Miller, 146 F.3d 274 (5th Cir. 1998) 15 United States v. Nicholson, 721 F.3d 1236 (10th Cir. 2013) 10,11 United States V.R.L.C., 503 U.S. 291 (1992) 16 United States v.Robinson, 414 U.S. 218 (1973) 23 United States v. Tibbetts, 396 F.3d 113 (10th Cir. 2005) 16 United States v. Wiltberger, 18 U.S. (5 Wheat.) 76 (1820) 17 Winter v. People ofState ofNew York, 333 U.S. 507, 517-520(1948) 59 Whrenv. United States, 517 U.S. 806 (1996) 11,15,22 Younger v. Harris, 401 U.S. 37, 44-45 (1971) 51 Texas Amplifone Corp. v. Cameron County (Civ. App. 1979) 577 S.W.2d. 567, 570 38 Barber v. State, 191 S.W.2d. 879 (1945) 48 Castas v. State, Tex.Cr.App., 503 S.W.2d. 262, 239 (1973) 47,56 Drummv. State, 560 S.W.2d 944 (1977) 54 Exparte Cannon, 546 S.W.2d. 266, 269-270 (1976) 46,47,56 ExparteDuncan,42Tex.Cr.R.66\,62SW.75%(\90\) 56 Ex parte Ports, 21 S.W.3d 444, 446 (Tex. App.-San Antonio 2000, pet. refd) 43 E-Z Mart Stores, Inc. v. Terry, 794 S.W.2d. 63 Appellant's Brief vj No. 05-15-00148-CR (Tex.App. - Texarkana 1990, writ denied) 51,57,61,65 Fairow v. State, 943 S.W.2d 895, 900 (1997) 61,65 Galveston, H & H.R. Co. v. Anderson (Civ. App. 1921) 229 S.W. 998 37,38 Georgev. State, 145 S.W.2d 187,188 (1940) 55 Graynedv. City ofRockford, 408 U.S. 104, 108(1972) 43,58 Harvey v. Culpeper, 801 S.W.2d 596, 600-01 (Tex.App.-Corpus Christi 1990, no writ) 61 Heine v. Texas Dep't ofPub. Safety, 92 S.W.3d. 642 (Tex. App. - Austin 2002, pet denied) 8 InreJ.L., 163 S.W.3d79, 85 (Tex. 2005) 63,64 Kingv. State, 29 S.W.3d. 556 (Tex. Crim. App. 2000) 9 Louder v. De Leon, 754 S.W.2d 148, 149 61,65 Lum v. State, 903 S.W.2d. 365 (Tex. App.-Texarkana 1995, pet. Refd) 61,65 Luquis v. State, 72 S.W.3d 355, 365 n.26 (Tex. Crim. App. 2002) 43 Mercedes Bern Credit Corp. v. Rhyne, 925 S.W.2d. 664, 666 (Tex. 1996) 8 Office ofPub. Util. Counsel v. Pub. Util. Comm 'n, 878 S.W.2d. 598, 600 (Tex. 1994) 64 Ogdenv. Slade, 1Tex. 13, 14 (1846) 39 Pledger v. Schoellkopf 762 S.W.2d. 145(1988) 42 Quickv. City ofAustin,! S.W3d. 109 (Tex. 1998) 9 Sixth RMA Partners, L.P. v. Sibley, lllS.W.3d.47,56(Tex.2003) 42 Appellant's Brief vjj No. 05-15-00148-CR State v.Evans, 843 S.W.2d 576 (Tex.Cr.App. 1992) 60 State v. Holcombe, 187 S.W.3d 496, 499 (Tex. Crim. App. 2006), cert, denied, 127 S.Ct. 176(2006) 58 State v. Steelman, 93 S.W.3d. 102 (Tex.Crim.App. 2002) 35 Texas Dep't ofPub. Safety v. Nail, 305 S.W.3d. 673 (Tex. App.-Austin 2010, no pet.) 9 Thomas v. State, 919 S.W.2d. 427 (1996) 56,60 Travis v. State, 959 S.W.2d 32 (Ark. 1998) 722 S.W.2d 694 (Tex. 1986) 25 Waggoner v. Morrow, 932 S.W.2d. 627, 631 (Tex.App - Houston [14th Dist] 1996, no writ) 9 Walkerv. Packer, 827 S.W.2d. 833, (Tex. 1992) 8 Weatherly v.Martin, 754 S.W.2d. 790 (1988) 42 STATUTES Federal 12U.S.C. §411 39 Texas Gov.Code, Chap. 30 50 Gov. Code §311.005(7) 36 Gov.C. §312.002 37 TC §502.040 27,28,32,33,53 TC §502.473 53 TC §504.010 32'56 TC §504.943 27,32,53 TC §§521.001(8) 36'40 Appellant's Brief vjjj No. 05-15-00148-CR TC §541.002(2) 40 TC §541.002(3) 40 TC §541.002(5) 36 TC §601.002(11) 36 North Carolina Statutes North Carolina General Statutes §20-4.01(45) 30 RULES C.Crim.Proc. Art. 14 5,26,33,35,47 C.Crim.Proc. Art. 21.20 62,63 C.Crim.Proc. Art. 21.21 52,62,63 C.Crim.Proc. Art. 21.22 62,63 C.Crim.Proc Art. 27.08 56 C.Crim.Proc. Art. 45.002 62 C.Crim.Proc. Art. 45.019(e)(2) 50 C.CrimProc, Art. 45.201 49 Tex.R.Civ.Proc, Rule 53 51 Tex.R.Civ.Proc, Rule 93 42 Texas Rule ofEvidence 201(b) 63 Texas Rule ofEvidence 701 61 Texas Rule ofEvidence 702 61 Texas Rule ofEvidence 704 61 Texas Rule ofEvidence 705 61 Appellant's Brief jx No. 05-15-00148-CR OTHER AUTHORITIES Carrattv.Morley, (1841) 113 Eng. Rep. 1036 14 Darryl K. Brown, Democracy andDecriminalization, 86 Tex. L. Rev. 223, 232 n.31(2007) 21 Malcomsonv. Scott, 23 N.W. 166 (Mich. 1885) 14 Rachel E. Barkow, Administering Crime, 52 UCLA L. Rev. 715(2005) 21 Restatement of Torts § 121 13 Restatement (Second) of Torts § 121 13 Wayne A. Logan, Police Mistakes ofLaw, 61 Emory LJ. 69, 86 (2011) 18 W. Blake Odgers & Walter Blake Odgers, The Common Law ofEngland 481 (2d ed. 1920) 14,15 STATEMENT ON ORAL ARGUMENT The points oferror in this appeal are adequately presented in the appellate record. Marzett believes that oral argument would not significantly aid the Court in determining the legal issues presented on appeal and the Court should exercise its discretion to decide this case without such argument. TEX. R. APP. P. 39.8. STATEMENT OF THE CASE This case originated in the CITY OF FRISCO MUNICIPAL COURT Appellant's Brief x No. 05-15-00148-CR where a CLERK of the MUICIPAL COURT filed a charging instrument labeled "complaint" alleging that Appellant failed to register his private property as a motor vehicle and display license plates under TRANSPORTATION CODE §502.493, (hereinafter "TC) (CR_11). Appellant was convicted in a bench trial in the MUNICIPAL COURT (CR19). Appellant was required to post a bond for twice the amount ofthe fine and court cost (CR230), in order to perfect his appeal to the COUNTY COURT AT LAW #1 (CR_13-14). Appellant was again convicted in a trial de novo to the bench in the COUNTY COURT AT LAW #1 (CR_340). Appellant appealed his conviction inthe COUNTY COURT AT LAW #1 to the Fifth District Court of Appeals (CR_388-389). ISSUES PRESENTED Issue I. Belcher Did Not Have "Reasonable Suspicion" To Conduct A Warrantless Seizure of Appellant 9 Issue II. The trial JUDGE erred as matter of law, when she refused to disqualify herself 35 Issue III. The COURT erred as a matter of law in applying the TC as the choice of law 41 Issue IV. The TC "as applied" to appellant's private property and activities, violated the Texas Constitution, Art. III., §35 42 Issue V. Appellant committed no act within the territorial jurisdiction ofthe TC 44 Issue VI. The COUNTY COURT lacked subject matter jurisdiction ofthis case 45 Issue VII. The COURT lacked personal jurisdiction Appellant's Brief xj No. 05-15-00148-CR of Appellant 48 Issue VIII. The CLERK had no standing to act as affiant on a charging instrument 49 Issue IX. The charging instrument was insufficient to give appellant constitutional notice of the cause and nature of the accusation against him 52 Issue X. The COURT erred as a matter of law in finding the charging instrument substantively sufficient to allege an offense 54 Issue XL The TC "as applied" to appellant violated U.S. Constitution. Sixth Amendment 57 Issue XII. The Subject Matter of the TC is unconstitutionally vague 58 Issue XIII. Belcher's testimony should have been limited 60 Issue XIV. The CLERK's affidavit is defective as a charging instrument 62 Issue XV. Belcher's unsworn report cannot support an Information 63 Issue XVI. Appellant's request for judicial notice of adjudicative facts should have been granted 63 Issue XVII. The COURT erred as a matter of law and abused its discretion when it refused to strike the testimony of BELCHER 64 Issue XVIII. The COURT erred as a matter oflaw when it found the evidence sufficient to support conviction 65 Appellant's Brief xjj No. 05-15-00148-CR APPELLANT'S BRIEF TO THE HONORABLE 5th DISTRICT COURT OF APPEALS: Inthis appeal, Appellant Robert E. Marzett (hereinafter "Appellant"), request that this Court reverse the judgment ofthe COLLIN COUNTY COURT AT LAW #1 (hereinafter"COUNTY COURT"). STATEMENT OF FACTS The Fourth Amendment permits police officers to stop a motor vehicle and its occupants for law enforcement purposes only when there is at least reasonable suspicion that a law has been violated. This case presents the question whether an officer's misinterpretation ofthe TC can form the basis for reasonable suspicion. On June 24, 2013, Appellant was seized, without a warrant by a CITY OF FRISCO POLICE OFFICER, Lindsey Belcher (hereinafter "Belcher") while traveling in the city of FRISCO, county of Collin, state of Appellant's Brief Page 1of 68 No. 05-15-00148-CR Texas (CR_260). Belcher was acting as apolice officer1 ofalocal authority2 under the TC when she seized Appellant because his private property displayed no license plates onthe rear (RR_Vol_4, 24:4-27:14). Appellant informed Belcherthat he was not engaged in "transportation" and his private property was not being used as a "device" to "transport or draw" persons or property on a "public highway" (CR260). Belcher formally arrested Appellant, impounded Appellant's private property and he was confined in the CITY OF FRISCO JAIL (CR_260). Appellant was required to post a bond payable only in Federal Reserve notes in order to secure his release (CR_230) and the release ofhis property. Acharging instrument labeled "COMPLAINT" was filed on June 28, 2013, alleging failure to display registration insignia and license plates (CR_11). Appellant was convicted in the MUNICIPAL COURT and appealed (CRJ3-14). A bond payable in Federal Reserve notes for twice the amount of the fine was required in order to perfect his appeal to the COUNTY COURT (CR_230). 1TC §541.002(4) ""Police officer" means an officer authorized to direct traffic or arrest persons who violate traffic regulations." 2TC §541.002(3)(A) "Local authority" means acounty, municipality, ot other local entity authorized to enact traffic laws under the laws of this state;..." TC §541.002(5) "State" has the meaning assigned by Section 311.005, Government Code, and includes a province of Canada. Gov. Code §311.005(7) ""State," when referring to apart ofthe United States, includes any state, district, commonwealth, territory, and insular possession ofthe United States and any area subject to the legislative authority ofthe United States ofAmerica." Appellant's Brief Page 2of 68 No. 05-15-00148-CR On August 29, 2014, appellant filed a motion to disqualify the COUNTY COURT JUDGE Conine Mason, (hereinafter "Mason") (CR_231-245). On September 3, 2014, the COUNTY COURT denied the motion and referred it to the FIRST ADMINISTRATIVE JUDICIAL DISTRICT (CR_249). On September 3, 2014, JUDGE Mary Murphy denied appellant's motion (CR_250). On September 11, 2014, the COUNTY COURT mailed appellant notice ofthe denial and set a pretrial hearing for October 1, 2014 (CR_250,255). On September 19, 2014, Appellant requested findings and conclusions regarding the denial ofthe motion to disqualify the trialjudge (CR_256-258). On September 29, 2014, appellant filed several pre-trial motions including aMotion to quash complaint (CR_259-292); motion to exclude expert and lay testimony (CR_303-307); request for judicial notice of adjudicative facts (CR_308-313); request for judicial notice of Texas law (CR_293-302); and amotion to set ahearing (CR_314-315). On November 3, 2014, appellant filed exhibits in support of appellant's request for judicial notice of adjudicative facts (CR_320-337). On October 1, 2014, the COURT issued an order setting ahearing for November 13, 2014 (CR_318). On November 13,2014, a hearing was held to consider appellant's motions (RR_Vol_3). Appellant argued the merits ofhis motion to exclude Appellant's Brief Page 3of 68 No. 05-15-00148-CR expert and lay testimony (RR_Vol._3, 61:4-76:10), request for judicial notice of law (RR_Vol._3, 7:7-12:11), request for judicial notice of adjudicative facts (RR_Vol._3, 12:12-14:17), and special appearance and motionto quash complaint (RR_Vol._3, 14:18-61:2). After hearing arguments, the COURT issued orders denying two of appellant's motions (CR_338-339). The COURT refused to consider appellant's motion to exclude expert and lay testimony, because the motion should have been labeled a motion in limine. Because it was mislabeled, Mason would not consider it. The COURT denied Appellant's motion to quash (CR_339) and his request for judicial notice ofadjudicative facts (CR_338). On November 20, 2014, appellant was convicted in a trial to the court and ordered to pay a fine of $ 99.00 plus court cost of $249 inFederal Reserve notes (CR_340). On November 24, 2014, appellant filed a request for findings and conclusions regarding denial ofappellant's motions (CR_344-345), and the COURT'S judgment ofguilt (CR_346-348). On December 18, 2014, appellant filed arequest for past due findings and conclusions regarding his motions (CR_349-351), the judgment (CRJ46-348), and a motion for new trial (CRJ52-376). On January 7, 2015, the COUNTY COURT issued findings and conclusions regarding guilt (CRJ77-378) and adocket entry denying appellant's motion for a new trial. u *> o • f Page 4 of 68 Appellant s Brief & No. 05-15-00148-CR On January 13, 2014, appellant filed a request for special amended findings and conclusions on the issue of guilt (CR379-382). On January 14, 2015, the COURT certified appellant's right of appeal (CR_391). On February 3, appellant filed notice of appeal (CR388-389), request for the CLERK'S RECORD (CR_384-385) and request for the REPORTER'S RECORD (CR_386-387). SUMMARY OF THE ARGUMENT The traffic stop of Appellant's car, based solely onthe police officer's misinterpretation oflocal traffic law, violated the U.S. Constitution, Fourth Amendment, Texas Constitution, Art. I, §9 and the CODE ORCRIMINAL PROCEDURE (hereinafter "C.Crim.Proc") Chapter 14. This Court has long held that a traffic stop is valid under the Texas Constitution, Art. I, §9, C.Crim.Proc. Art. 14.01, and the Fourth Amendment only ifofficers have objectively reasonable suspicion to believe that alaw is being violated. That objective inquiry can be properly performed only by measuring the facts against the correct interpretation ofthe law. Otherwise, the reasonable suspicion doctrine would be at odds with various common- law principles, including the ancient maxim that ignorance ofthe criminal law is no excuse. Allowing traffic stops based on "reasonable" mistakes of Appellant's Brief Page 5of 68 No. 05-15-00148-CR law also would be in tension with multiple canons of statutory construction aimed at preventing the government from benefitting from ambiguity in criminal statutes. Finally, such a rule would subvert warrantless seizure provision's core purpose of constraining officer discretion, for it would confer upon the police the authority to seize citizens whenthe facts known to the officers, measured against an accurate view of the law, reveal only wholly innocent conduct. To be sure, warrantless seizure provisions tolerate traffic stops based on reasonable mistakes of fact. But the reasons for doing so do not carry over to mistakes officers make about applicable law. The Fourth Amendment affords officers leeway to make good-faith mistakes of fact because officers need flexibility to make quick, ad hoc factual assessments in the field. And Courts evaluating the legality of traffic stops have already shown that they can easily distinguish mistakes oflaw from those offact. Law enforcement incentives would be skewed if stops based on officer mistakes of traffic law were upheld as proper. Most notably, police departments would be discouraged from using resources at their disposal to ensure that officers on patrol have an accurate understanding ofthe law. Police departments would also be discouraged from asking lawmakers to clarify ambiguous laws, for such clarifications would shrink officer Appellant's Brief Page 6of 68 No. 05-15-00148-CR discretion. Indeed, if motorists were subject to seizures based on mistaken interpretations of laws, it also would be much more difficult - indeed, sometimes downright impossible - for people to avoid being exposed to traffic stops. And to the extent the COUNTY COURT'S holding would allow stops based on reasonable mistakes as to the existence of law, the universe of circumstances allowing officers to impose upon citizens the burdens of traffic stops would be broader still. The safety objectives of traffic laws do not make police misinterpretations ofsuch laws more tolerable. In Texas, as elsewhere, it is the legislature's job to decide what traffic activities should be prohibited because they are unsafe. It is the responsibility oflaw enforcement to learn and enforce those laws. Warrantless seizure laws do not allow the police to reinterpret and broaden those laws according to officers' own perceptions of what is necessary to protect public safety. Misinterpretations oflaw by law enforcement officers is compounded when courts charged with presiding over such cases adopt the officer's interpretation without question. Failure of courts to correctly interpret and apply TC law leads to injustice and multiple other violations ofcitizen's rights as is demonstrated by this case. Practically every issue complained ofin this appeal is founded on an incorrect interpretation ofthe law by Belcher and the COUNTY COURT. When Appellant's Brief Page 7of 68 No. 05-15-00148-CR questioned, public officials refuse to identify the source of their power when enforcing TC law and refuse to express their interpretation of key provisions of this code such as precisely what activity is being regulated by this code or what physical territory is included within the territorial jurisdiction of this code. With a correct interpretation of the TC as a foundation, this case raises multiple constitutional challenges regarding the exercise ofjurisdiction within the territory of a Union state and the limitations state and federal constitutions place on that power. STANDARD OF REVIEW The standard of review for finding appellant guilty is an abuse of discretion standard. Heine v. Texas Dep't ofPub. Safety, 92 S.W.3d. 642, 646 (Tex. App. - Austin 2002, pet denied). A trial court abuses its discretion if its decision is arbitrary, unreasonable, and without reference to any guiding principals. Mercedes Benz Credit Corp. v. Rhyne, 925 S.W.2d. 664, 666 (Tex. 1996). A trial court has no discretion in determining what the law is or applying the law to the facts. Thus, a clear failure by the trial court to analyze orapply the law will constitute an abuse ofdiscretion. Walker v. Packer, 827 S.W.2d. 833, 840 (Tex. 1992). In short, the trial court has no discretion to misapply the law. Therefore, when a court incorrectly construes Appellant's Brief Page 8of 68 No. 05-15-00148-CR or refuses to follow the law, or fails to correctly apply the law to the facts, the abuse of discretion standard essentially amounts to a de novo review. When the ruling turns on a question of law, such as the interpretation of a statue, the ruling is reviewed de novo. Texas Dep't ofPub. Safety v. Nail, 305 S.W.3d. 673, 678 (Tex. App. - Austin 2010, no pet). Under this standard, the court conducts an independent analysis of the record and gives no deference to the trial court's conclusions. The standard of review in determining factual sufficiency of the evidence is whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof ofguilt is so obviously weak, or so contrary to the overwhelming preponderance ofthe evidence. King v. State, 29 S.W.3d. 556, 563 (Tex. Crim. App. 2000). In performing a de novo review, we exercise our own judgment and re-determine each legal issue. Quick v. City ofAustin, 1S.W.3d. 109, 116 (Tex. 1998). Conclusions of law will be upheld on appeal ifthe judgment can be sustained on any legal theory the evidence supports. Waggoner v. Morrow, 932 S.W.2d. 627, 631 (Tex.App - Houston [14th Dist] 1996, no writ). ARGUMENT AND AUTHORITIES Issue I. Belcher Did Not Have "Reasonable Suspicion" To Conduct A ii *> n • f Page 9 of 68 Appellant s Brief & No. 05-15-00148-CR ^i^m^l^^l^irm-i^^es'^K^'^f^ Warrantless Seizure of Appellant As the Tenth Circuit has explained, the relevant question in a case such as this is: "Against what interpretation of the law should [a court] assess the facts when deciding whether there was reasonable suspicion ... to make a traffic stop?" United States v. Nicholson, 721 F.3d 1236, 1244 (10th Cir. 2013). Should a court assess the facts against the "correct interpretation of the law" or against whatever misinterpretation of the law an officer might reasonably have? For the reasons that follow, the reasonable suspicion inquiry requires courts to measure the facts against the correct interpretation of the law. Fourth Amendment Precedent, Tradition, And Purpose Require The Facts Known To The Officer To Be Measured Against The Correct Interpretation of The Law. The Fourth Amendment provides that "[t]he right of the people to be secure intheir persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." U.S. Const. Amend. IV. "[Shopping an automobile and detaining its occupants constitute a 'seizure'" within the meaning ofthe Fourth Amendment. Delaware v. Prouse, 440 U.S. 648, 653 (1979). Accordingly, stopping an automobile and detaining the driver "are unreasonable under the Fourth Amendment" unless the police Appellant's Brief Page 10 of 68 No. 05-15-00148-CR ^•$*'***?*!#'?jS*M*^«^Ki*= •- *'•*• 'i !•«• •**'«-•**& !8teWr&x^**'.SK~ - --i, • -^.(,v-^*^ari>^«is*ysa*W**W^'to^ would only deepen, for now he would have to hypothesize about the non existent laws that might reasonably exist, but do not. This was the case in Travis v. State, 959 S.W.2d 32 (Ark. 1998), in which the court held that a traffic stop for failing to display an expiration date sticker on a license plate comported with the Fourth Amendment, even though state law required no such sticker. Id. at 33-35. Surely it is unfair to require citizens seeking to steer clear of police contact to imagine what an officermight reasonably believe should be against the law but is not. In Texas, as elsewhere, it is first and foremost "the legislature's job" to decide which activities are unsafe and thus should be prohibited, not a police officer's. And the Texas Legislature has squarely addressed what entities are required to register their property as "vehicles" and display license plates. Especially when a legislature has considered and resolved an issue as directly as this, the responsibility of law enforcement is to learn and apply what the statute provides, not reinterpret and broaden the law according to officers' own intuitions about what they think would best protect public safety. At bottom, this case involves a simple proposition: This Court should demand of the officers who seized Appellant exactly what the officer Appellant's Brief Page 25 of 68 No. 05-15-00148-CR intended to demand of him as a citizen - knowledge of the law. Anything less would undermine long- settled relationships between the people and their government. It would also destabilize the Supreme Court's carefully delineated Fourth Amendment doctrine protecting fundamental rights from remedies. There is no good reason to inflict such damage upon our constitutional structure. Applying the principals thus enunciated to the instant case, Appellant challenges the reasonableness ofhis seizure under the Texas Constitution, Art. I, § 9, Code ofCriminal Procedure, Chapter 14 and the U.S. Consitution, Fourth Amendment. Appellate argued that Belcher's conclusion that appellant was required to "register" his private property as a "vehicle" and display STATE OF TEXAS issued license plates on it was not supported by the TC. TC §502.040(a) is the section that expresses what entities are required to register their private property as a "vehicle." It states I part: "Not more than 30 days after purchasing a vehicle or becoming a resident of this state, the owner of a motor vehicle, trailer, or semitrailer shall apply for the registration ofthe vehicle for:" TC §502.493(a) is the section that expresses the offense offailure to display registration insignia and states inpart: Appellant's Brief Page 26 of 68 No. 05-15-00148-CR -k**»mK8,£ '» As argued in Issue I, TC §502.040 is the sectionthat establishes the requirements for registration. TC §502.473 and 504.943 are the sections that define the alleged offenses. The complaint fails to allege that appellant had purchased a "vehicle" less than 30 days prior to this transaction or that appellant is a "resident of this state." The charging instrument failed to allege why Appellant was required to register and display license plates. The charging instrument and these TC sections, use terms of art that are statutorily defined such as "person," "operator," "vehicle," "motor vehicle," "drive," "state," "resident," and "public highway." Many ofthese terms are defined by statute inthe TC using multiple other terms that are defined by statute. These multiple definitions create multiple theories upon which appellant might be convicted. With so many different combinations oftheories the PROSECUTOR could attempt to prove for purposes ofconviction, it is impossible for appellant to know upon what theory the PROSECUTOR would rely and therefore impossible for Appellant to prepare a defense. Appellant is not required to anticipate any and all variant facts the state might hypothetically seek to establish. While the charging instrument follows the language inthe statute, this is not sufficient when the statue contains multiple ways to violate the provision. Appellant's Brief Page 53 of 68 No. 05-15-00148-CR The charging instrument is also insufficient to bar future charges arising from the same transaction. When appellant petitions for sufficient notice of the state's charge by motion to quash adequately setting out the manner in which notice is deficient, the presumption of innocence coupled with his right to notice requires that he be given such notice. Drumm v. State, 560 S.W.2d 944, 946-947 (1977). Appellant was entitled to such notice and his motion to quash was sufficient to point out his need. The COURT erred as a matter of law and abused its discretion when it refused to issue findings and conclusions and denied appellant's motion to quash. The COURT erred and appellant was harmed by the error. This verdict in this case should be reversed and the case dismissed. Issue X. The COURT erred as a matter of law in finding the charging instrument substantively sufficient to allege an offense. Defendant objected to and continues his objections to substantive defects in the charging instruments filed against him. (CR285-287, 361-362). The Court ofCriminal Appeals addressed the issue ofthe necessity of alleging the essential elements ofan offense in the case of George v. State, 145 S.W.2d 187, 188 (1940), the Court ofCriminal Appeals addressed the subject Appellant's Brief Page 54 of 68 No. 05-15-00148-CR ofthe sufficiency of a charging instrument alleging registration violations. The court stated: "It is our opinion that the above allegation is not sufficient to apprise appellant in what way he had failed to follow the requirements of the law relative to the registration of the automobile that he was operating on such highway. There is more than one article of the statute governing the proper registration of motor vehicles, and the complaint as herein presented might include a violation of any one of such articles as a basis of this prosecution. Appellant is entitled to have the complaint apprise him in no uncertain terms of the specific requirement of the law that he had failed to comply with, and if necessary, prepare a defense, if possible or desired..." "It is not always sufficient to follow the language of the statute. There are cases that require greater particularity, either from the obvious intention of the Legislature or from the application of known principles of law,.." There is no allegation that appellant was "a resident of this state" or had purchased a vehicle in the 30 days prior to this transaction. There is no allegation appellant is a "person" as defined by the code. There is no allegation of specifically how appellant's private property was being "used" as a "device" to transport or draw persons or property as defined in the TC. There is no allegation that appellant committed an act withinthe territorial jurisdiction of "State." If the charging instrument fails to allege an offense against the laws of Texas, see Tex. Const. Art. V, §12(b)6, it is subject to Appellant's Brief Page 55 of 68 No. 05-15-00148-CR exception by a motion to quash. Appellant objected to these defects prior to trail (CR 285-287). Because judicial action without jurisdiction is void, it cannot be waived and may be raised at any time by direct or collateral attack. Although most rights and procedural matters may be waived, jurisdictional matters may not. A judgment which is void, is conclusive of nothing, and may be subject to inquiry in a collateral proceeding. Exparte Duncan, 42 Tex.Cr.R. 661, 62 S.W. 758; Exparte Cannon, 546 S.W.2d. 266; Castas v. State, Tex.Cr.App., 503 S.W.2d. 262, 263 (1973). see CCP Art. 27.08. To warrant a conviction, an action or omissionmust be plainly and unmistakably within the definition ofthe statue, within both the letter and the spirit of the law, and if there is any doubt whether the statute embraces it, that doubt must be resolved in favor of the accused, see Thomas v. State, 919 S.W.2d. 427, 430. Belcher testified that Appellant's property was not registered as a motor vehicle at the time of this stop. Only persons who apply for registration are issued license plates and are required to display them under TC §504.010. The COURT erred as a mater of law and abused its discretion when it found the charging instrument sufficient to allege an offense. The judgment in this case should be reversed and dismissed. Appellant's Brief Page 56 of 68 No. 05-15-00148-CR Issue XL The TC "as applied" to appellant violated U.S. Constitution, Sixth Amendment. Application of the TC to appellant's private property and activities is unconstitutional as a violation of the Sixth Amendment to the federal constitution (CR_365-366). The Sixth Amendment guarantees to every Citizen of the Union in a criminal prosecution, the rightto a "speedy and public trial, by an impartial jury ofthe State and district wherein the crime shall have been committed..." The term "State" as used in the TC, means only territories and possessions ofthe United States, not states inthe Union. The record shows that the activities, which are the subject of this transaction, occurred within the exclusive territory ofthe Union state ofTexas, city ofFRISCO, county of Collin. This transaction did not occur within the territory of "State" as defined in the TC. The COUNTY COURT enforcing this code is not sitting as a general jurisdiction court ofthe de jure government ofTexas, acting as a state inthe Union enforcing its general laws. The COUNTY COURT ina TC case is sitting as an administrative court enforcing federal territorial law. Appellant's trial and conviction in this administrative court acting under federal authority is not atrial in the "state and district wherein the crime shall have been committed" pursuant to the Sixth Amendment to the federal Appellant's Brief Page 57 of 68 No. 05-15-00148-CR constitution. A trial before this administrative court, applying federal territorial law is a violation of the Sixth Amendment to the federal constitution. This case should be reversed and dismissed. Issue XII. The Subject Matter of the TC is unconstitutionally vague. It is a basic principle of due process that a statute is void for vagueness if its prohibitions are not clearly defined, see Papachristou v. City ofJacksonville, 405 U.S. 156, 165 (1972); State v. Holcombe, 187 S.W.3d 496, 499 (Tex. Crim. App. 2006), cert, denied, 127 S.Ct. 176 (2006). When reviewing an attack upon the constitutionality of a statute, we begin withthe presumption that the statute is valid and the legislature has not acted unreasonably or arbitrarily, see Luquis v. State, supra; Exparte Ports, supra; Papachristou v. City ofJacksonville, supra; State v. Holcombe, supra; Graynedv. City ofRockford, supra. A vague law impermissibly delegates basic policy matters to policemen, judges and juries. See Groyned v. City of Rockford, supra. Appellant challenged the constitutionality ofthe TC "as applied" to his private travel in his motion to quash the complaint because the subject matter "transportation" is vague (CR_295-297, 364-365). Appellant argued that the PROSECUTOR and the COUNTY COURT improperly interpreted and Appellant's Brief Page 58 of 68 No. 05-15-00148-CR applied the TC to appellant's private property when said property was being used for purely private activity. Applying the TC to activity not expressed in the subject ofthe bill violates the Texas Constitution, Art. 3, § 35. The COUNTY COURT and STATE OF TEXAS have refused to take judicial notice ofthe definitions of"transportation" and "travel" provided by appellant (CRJ07-312). The COUNTY COURT and STATE OF TEXAS have refused to provide any definition for "transportation" as used to define the subject matter in the enacting clause ofthe TC. Appellant's interpretation ofthese terms was obtained from established dictionaries, both lay and legal that are not subject to dispute. The subject matter ofalaw must be clear and definite if it is intended to regulate the activities ofthe sovereign People ofTexas. IfaCitizen ofaverage intelligence cannot definitely know what activity is being regulated, the law is vague and therefore void for vagueness. See Winter v. People ofState ofNew York, 333 U.S. 507, 517-520 (1948). The notion that the law is definite and knowable sits at the foundation ofour legal system. See Cheek v. United States, 498 U.S. 192,199 (1991). To warrant a conviction, an action or omission must be plainly and unmistakably within the definition ofthe statue, within both the letter and the spirit ofthe law, and if there is any doubt whether the statute embraces it, that doubt must be resolved in favor ofthe accused, see Thomas v. State, 919 S.W.2d. 427,430. If A „ „ D•f Page 59 of 68 Appellant's Brief 6 No. 05-15-00148-CR appellant's request for notice of the definition of transportation does not accurately define the subject matter of the TC, and the COURT adopts some other undisclosed or unknown definition, the subject matter of the TC "as applied" to appellant is ambiguous and therefore void for vagueness. If a criminal statute is so indeterminate that "men of common intelligence must necessarily guess at its meaning," the law is constitutionally void for vagueness. UnitedStates v. Lanier, 520 U.S. 259, 266 (1997) (quoting Connallyv. Gen. Constr. Co., 269 U.S. 385, 391 (1926)). Issue XIII. Belcher's testimony should have been limited. Appellant made pretrial motion to limit BELCHER's testimony when using certain technical and statutory terms as either a lay or expert witnesses under Rule of Evidence 701, 702 and 704 (CR_303-307). Appellant first wanted an offerof proofthat Belcher knew and understood the definitions of the words she was using to describe appellant's activities and his property. The COUNTY COURT refused to hear Appellant's motionbecause it should have been titled a motion in limine. It was error for the COUNTY COURT not to treat Appellant's motion inthe nature ofthe motion and not based onits title. State v. Evans, 843 S.W.2d 576 (Tex.Cr.App. 1992). The motion should have been decided on its merits. Such a hearing would have limited the testimony of Belcher when she used statutory and technical terms without proofin the Appellant's Brief Page 60 of 68 No. 05-15-00148-CR record that she knew and understood the meanings of the terms she was using. The testimony should have been limited or excluded after proper and timely objections under Rules of Evidence 701, 702, 704 and 705. A lay witnesses' testimony was found to be inadmissible in the case of Lum v. State, 903 S.W.2d. 365, 370 (Tex. App. - Texarkana 1995, pet. Ref d) lay witness not shown to be familiar with legal definition of negligence; An expert witness was erroneously allowed to testify in the case of E-Z Mart Stores, Inc. v. Terry, 794 S.W.2d. 63, 64-65 (Tex.App. - Texarkana 1990, writ denied) expert testimony that defendant was negligent was erroneously admitted because legal definition ofnegligence was not explained to witness and he did not demonstrate knowledge of its meaning. Other cases on this point are Louder v. De Leon, 754 S.W.2d 148, 149; Fairow v. State, 943 S.W.2d 895, 900; Harvey v. Culpeper, 801 S.W.2d 596, 600-01 (Tex.App.-Corpus Christi 1990, no writ). These cases establish a standard for the admission of expert or lay testimony. Any witness testifying under Tex. Rule ofEvidence 701 or 702 must demonstrate that the witness knows and understands the legal definition of terms she uses during her testimony. It was harmful error not to hear and consider this motion. Appellant's Brief Page 61 of 68 No. 05-15-00148-CR Issue XIV. The CLERK's affidavit is defective as a charging instrument. Appellant challenges the affidavit of the CLERK of the CITY OF FRISCO MUNICIPAL COURT as defective (CR_272-273, 275-78, 370-371). The CLERK is attesting to alleged facts that are based on information provided in a report that is not verified. The CLERK is not a proper officer to act as affiant in a criminal prosecution. The charging instrument is labeled a "complaint," but it is actually in the nature of an "information." The allegation is based on information provided by some credible person. There is no provision in C.Crim.Proc. Art. 45 that authorizes a charging instrument based on information provided by some credible person. However, Art. 45.002 states in part: ".. .If this chapter does notprovide a rule of procedure governing any aspect of a case, the justice orjudge shall apply the other general provisions ofthis code to the extent necessary to achieve the objectives ofthis chapter." This charging instrument should be held to the standards of an "information" under C.Crim.Proc. Arts. 21.20, 21.21 and 21.22. An information shall not be presented until affidavit has been made by some credible person charging the appellant with an offense. The affidavit must be filed with the information. No such affidavit was filed with this charging instrument. It is therefore defective and should have been quashed. Appellant's Brief Page 62 of 68 No. 05-15-00148-CR Issue XV. Belcher's unsworn report cannot support an information. Belcher's unsworn report serves as the basis for allegations made in the charging instrument (CR_277-278, 370). The CLERK's affidavit is in the nature of an information under C.Crim.Proc. Arts. 21.20,21.21 and 21.22. Belcher's unverified report should be viewed as a complaint in support of the information made by the CLERK. Belcher's unsworn report is insufficient to support an information. The COURT erred as a matter of law when it found that BELCHER's report was reliable and sufficient to support a charging instrument. Issue XVI. Appellant's request for judicial notice of adjudicative facts should have been granted. Under Texas Rule of Evidence 201(b), a court may take judicial notice of facts that are not subject to reasonable dispute if the facts are either(1) notorious, that is, generally known within the territorial jurisdiction ofthe trial court, or (2) verifiable, that is, capable of accurate and ready determination by resorting to sources whose accuracy cannot reasonably be questioned. In re J.L., 163 S.W.3d 79, 85 (Tex. 2005); see Office ofPub. Util. Counsel v. Pub. Util. Comm 'n, 878 S.W.2d. 598, 600 (Tex. 1994). An explicit definition of Appellant's Brief Page 63 of 68 No. 05-15-00148-CR PietfiiS**Wp^SMtWKsSfSrt^VSW %* "transportation" is essential to a lawful interpretation and application of this code. An unambiguous definition is also necessary to give Citizens of Texas proper notice of what activity is subject to regulation and control by this code. see Tex. Const., Art. Ill, §35. Appellant filed a request for judicial notice of the definition of the term "transportation" (CR_308-313, 374-375). The PROSECUTOR failed to file a response to the requested notice and offered no interpretation at the hearing. The COURT denied the motion and did not state exactly what activity is the subject of regulation by this code (CR338). Appellant provided a definition from sources whose accuracy cannot be reasonably questioned. It was harmful error for the COUNTY COURT not to notice the requested definition and provide a lawful interpretation expressing the subject matter of this code. Issue XVII. The COURT erred as a matter of law and abused its discretion when it refused to strike the testimony of BELCHER. Appellant made a motion to strike all testimony of Belcher, where she used statutory terms to describe appellant's activities at the close of the PROSECUTOR'S presentation of evidence. Belcher testimony is conclusive evidence that she doesn't understand the meanings of statutory terms she used to describe Appellant and his property and activities. The law does not Appellant's Brief Page 64 of 68 No. 05-15-00148-CR :t--^'**ww^W9»^sfc' support Belcher's interpretation of the relevant TC sections. Her testimony was unreliable and therefore inadmissible because not relevant or helpful to the trier of fact. seeLum v. State, supra; E-ZMart Stores, Inc. v. Terry, supra; Louder v. De Leon, supra; Fairow v. State, supra. At the conclusion ofthe presentation of evidence by the PROSECUTOR, Appellant renewed his objections by moving the COURT to strike Belcher's testimony where she used terms that were defined by statute (RR_Vol._3, 80:8-81:17) (CR373- 374). The COURT denied the motion. The testimony should not have been admitted in the first instance and should have been stricken from the record on timely motion of appellant. The COURT erred as a matter of law and abused its discretion when the motion to strike was denied after timely objection. The error was harmful to Appellant and should not have been considered. Issue XVIII. The COURT erred as a matter of law when it found the evidence sufficient to support conviction. Appellant challenged the sufficiency of the evidence in his motion for new trial (CR375-376). There was no reliable evidence that prior to seizing Appellant, Belcher was in possession ofreliable information that Appellant was required to register his private property as a vehicle and display license Appellant's Brief Page 65 of 68 No. 05-15-00148-CR --#>*.B*4s»a*^ssj(fi** plates on it; that appellant was engaged in "transportation" on a "public highway;" that Appellant has the status of "person;" that Appellant committed any act or omission within the territorial jurisdiction of "State;" or that Appellant committed an offence against the laws of Texas. BELCHER's testimony shows that prior to seizing appellant, she knew nothing about Appellant. There was no reliable evidence the TC is a general law of Texas that applies to Appellant as a Citizen of Texas. Belcher's testimony, in which she used terms that were defined by statute, should not have been admitted after timely and proper objection by appellant. All testimony of Belcher, in which she used terms that were defined by statute, was not reliable and should have been stricken from the record after timely motion to strike by appellant(RR_Vol._80:8-81:17). Even with the admission of Belcher's testimony, the evidence presented was insufficient to support conviction. No offense against the laws of Texas was alleged; and Belcher's testimony was not credible and was insufficientto support conviction. Appellant's Brief Page 66 of 68 No. 05-15-00148-CR CONCLUSION The record on appeal shows the COUNTY COURT did not apply a correct interpretation ofthe TC to the facts in convicting Appellant. The COUNTY COURT committed numerous fundamental errors and abuses of discretion in pretrial motions, during the trial and post trial motions. Because this appeal challenges the interpretation and application of the TC to the facts of this case, Appellant has provided a complete record to the Court of Appeals and seeks a de novo review. These errors and abuses were harmful to appellant and this conviction should be reversed and dismissed. PRAYER Wherefore, appellant prays that the Court of Appeals, will reverse the conviction of the trial COURT and dismiss the charge against him. Respectfully submitted, Robert Earl Man Sui Juris, a natural person All rights reserved without prejudice 9720 Coit Road #220-116 Piano, Texas Tel. 214-868-8698 Appellant's Brief Page 67 of 68 No. 05-15-00148-CR CERTIFICATE OF COMPLIANCE 1. This brief complies with the type-volume limitations on Tex. R. App. P. 9.4(i)(2)(B) because it contains 14,723 words, excluding parts of the brief exempted by Tex. R. App. P. 9.4(i)(l). 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. Robert E. CERTIFICTE OF SERVICE This is to certify, pursuant to Tex. R. App. P 9.5, on this the 9th day of January, 2015, a true and correct copy of the above and foregoing instrument was served upon appellee's counsel of record at the below listed addresses using the following methods. Personal Delivery COLLIN COUNTY DISTRICT ATTORNEY 2100 Bloomdale Road McKinney, Texas 75071 Ropert E. Marzett Appellant's Brief Page 68 of 68 No. 05-15-00148-CR