Cause No. 50481
Statement of Factual Accusatoin
- Affiant Prosecuted Because Affiant Reported Crime
- Affiant is a radio talk show reporter and host from Austin, Texas. Affiant does a show about due process and the rule of law. Therefore, Affiant receives a great number of calls from people all over the country complaining about corrupt public officials, mistreatment, and disenfranchisement. In the instant cause, Affiant received calls from a personal acquaintance, Robert Fox concerning his mistreatment by public officials in the City of Jacksonville, and Cherokee County Texas. Subsequently, Affiant looked into the actions of the courts in Cherokee County and the outrageous assertions by Mr. Robert Fox and Mr. David Baugh against public officials.
- On examining the court record, reviewing the existing documents, and more importantly, at the absence of certain requisite documents; Affiant found reason to believe that public officials had violated specific laws relating to their offices.
- Affiant Filed Notice With Grand Jury
- On the 23rd day of March 2009, Affiant went to the Cherokee County Courthouse with the intention of presenting evidence of offenses by Cherokee County public officials to the grand jury meeting that day. Affiant approached Joe Evans, acting bailiff for the grand jury and immediately identified myself the asked Evans to notify the foreman that Affiant had business with the grand jury and was here to request audience. Evans assured Affiant that the grand jury was very busy and would not be able to see Defendant. When Evans asked the nature of my business Affiant notified Evans that Affiant was there to file allegations of offenses by Cherokee County public officials and handed Evans twelve envelopes one each intended for each member of the grand jury. The envelopes contained statements documenting Defendants assertions and allegations. Affiant requested that Evans deliver the folders to the grand jury.
- After giving the above referenced documents to Evans, Affiant sat and waited to be contacted. After an hour or so, the grand jury filed out of the building. Affiant asked Evans when the grand jury could be expected to come back from lunch. Evans stated that the grand jury had finished their business and would not be returning until their next scheduled meeting, which was a month away.
- Beckworth Abused His Office Concerning Mr. Fox’s Complaints
- In the instant cause, it was necessary to go directly to the grand jury as, Cherokee County District Attorney, Elmer Beckworth, had been presented with criminal complaints against The Honorable Judge Craig Fletcher, County Attorney, Craig Caldwell and others by Robert Fox back in November of 2008. Beckworth acted in clear and direct violation of Texas Code of Criminal Procedure (TxCCP) Article 2.03(a), when presented with criminal complaints against public officials, and refused to present the complaints to the grand jury.
- In consideration of TxCCP
Articles 2.04, and 2.05:
Art. 2.04. SHALL DRAW COMPLAINTS. Upon complaint being made before a district or county attorney that an offense has been committed in his district or county, he shall reduce the complaint to writing and cause the same to be signed and sworn to by the complainant, and it shall be duly attested by said attorney.
Art. 2.05. WHEN COMPLAINT IS MADE. If the offense be a misdemeanor, the attorney shall forthwith prepare an information based upon such complaint and file the same in the court having jurisdiction; provided, that in counties having no county attorney, misdemeanor cases may be tried upon complaint alone, without an information, provided, however, in counties having one or more criminal district courts an information must be filed in each misdemeanor case. If the offense be a felony, he shall forthwith file the complaint with a magistrate of the county.
- which stipulate how criminal accusations against
citizens are to be handled by the prosecuting attorney, it must be
construed that Article
2.03(supra) was specifically considered by the Legislature as a
special statute. Article 2.03(supra) particularly addressed complaints
against public officials. The clear language of the law made it clear
that the prosecuting attorney was without discretion of any kind concerning
complaints being made against public officials.
Art. 2.03. NEGLECT OF DUTY. (a) It shall be the duty of the attorney representing the State to present by information to the court having jurisdiction, any officer for neglect or failure of any duty enjoined upon such officer, when such neglect or failure can be presented by information, whenever it shall come to the knowledge of said attorney that there has been a neglect or failure of duty upon the part of said officer; and he shall bring to the notice of the grand jury any act of violation of law or neglect or failure of duty upon the part of any officer, when such violation, neglect or failure is not presented by information, and whenever the same may come to his knowledge. (Emphasis added)
- No prosecutor should be put in a position to have to determine whether or not to prosecute someone s/he works with. The Legislature, in their wisdom, specifically addressed this issue and insured that the prosecutor would not be put in such a compromising position. In 2007, the Legislature re-visited the matter of crimes by public officials and added Section 30.015 to Chapter 39 of the Texas Penal Code (TxPC).
- This would allow the prosecutor to turn a prosecution of a public official over to the Attorney General rather than having to recuse himself and petitioning the district court to appoint an attorney pro tem. Beckworth, in the instant case, did none of the above. Beckworth did not exercise prosecutorial discretion as discretion was specifically denied him in the instant case. Beckworth exercised caprice in that he decided who he wanted to prosecute and who he did not, and that was an act in direct violation of Article 2.03 (supra), a law relating to his office. Said act was a violation of TxPC Section 39.02.
- Beckworth Shielded Public Officials From Prosecution
- Affiant asserts and alleges that Beckworth violated Section 39.02 (supra) for the purpose of shielding from prosecution all the officials complained of by Robert Fox in violation of TxPC Section 38.05.
- The above actions of Elmer Beckworth have the effect of shielding the accused from prosecution in violation of TxPC Section 38.05(supra). (see Exhibit Complaint D)
- Beckworth Denied Fox in Due Course of Laws
- t is the position of Affiant that Beckworth, by purporting to exercise a level of discretion specifically denied him by special statute (see TxCCP Article 2.03(a) supra), exerted an authority specifically denied him and in so doing, denied Robert Fox in the equal protection of the laws.
- 10 In as much as the law in this matter is clear and Beckworth had a statutory duty under Article 2.03 (supra), Affiant had reason to believe that Beckworth, if presented with complaints against public officials would not present same to the grand jury in violation of TxPC Section 39.03. .
- 11 Elmer Beckworth, by the above, violated a law relating to his office and, in the process, denied Robert Fox in the due course of the laws of the State of Texas in direct violation of TxPC 39.03(supra). (seeExhibit Complaint E)
- 12 Defendant, being a citizen of the State of Texas, and a Viet Nam veteran, had a sworn duty to “protect this country from all enemies, foreign and domestic,” as per Defendant’s lifetime oath as sworn to upon entering the military, considered it a duty to report crime when discovered. In as much as Affiant can find no law that restricts Affiant from communicating with the grand jury foreman or any other member of the grand jury when they are not in session, Affiant took complaints directly to the Cherokee County Grand Jury in order to encourage the grand jury to investigate into the offenses alleged by Defendant.
- Evans Secreted Compliants From Grand Jury
- According to the sworn testimony of Evans at a Frank’s hearing held on the 20th day of June 2011, to test the sufficiency of the testimony of an affiant seeking a warrant, Evans did not give the criminal accusation made by affiant to the grand jury members as intended by Defendant, but instead, gave them to the Cherokee County District Attorney, Elmer Beckworth. By said act, Evans secreted the documents presented by Affiant from the grand jury in violation of TxPC Section 37.01 (supra)
- Nothing in law grants anyone acting in a security capacity, such as a bailiff, to exercise discretion in determining what documents may be presented to a grand jury and what documents may not. Neither is the bailiff granted authority to determine who my give notice to a grand jury of crime. TxCCP Article 20.09 (supra) is clear in the Legislative intent that the grand jury’s duty to investigate into criminal accusations be invoked by the notice of crime from prosecuting attorney or “any credible person.” I was that ‘credible person’ as a matter of law, being over the age of 18 and having never been convicted of a felony.
- By misdirecting the documents intended for the grand jury, Joe Evans tampered with a government document in violation of TxPC Section 37.10 (supra). (see Exhibit Complaint I)
- Evans Conspired With Caldwell
- Evans went on to testify that, after Evans delivered the documents intended for the grand jury to Beckworth that Beckworth called Cherokee County Attorney, Craig Caldwell, consulted with Caldwell about the documents filed by Defendant, then Caldwell advised Evans to prepare a complaint against Affiant alleging that Affiant “operated a private investigating business without a license.”
- The court record indicates that Caldwell then prepared an information based on the complaint then the complaint and information was then presented to Judge Fletcher, who, without a single fact alleged, found probable cause and issued a warrant for the arrest of Affiant on the 27th day of April 2009.
- Evans, by failing to deliver Defendant’s accusations to the grand jury and then, consulting with one of the accused, Craig Caldwell, for the purpose of filing criminal complaints against Defendant, committed the act of “criminal conspiracy,” as defined by TxPC Section 15.02. (see Exhibit Complaint G attached).
- Evans Filed False Complaint In Retaliation
- Joe Evans, after conspiring with Craig Caldwell about criminal allegations Affiant filed against Caldwell, prepared and presented a false criminal accusation against Affiant in order to deflect attention from the complaints filed by Defendant. Any reasonable person of ordinary prudence would construe that the filing of a criminal complaint against Affiant by Evans after consulting with the official complained of, amounted to an act of retaliation against Defendant.
- It is the assertion and allegation of Affiant that the filing of the criminal complaint against complainant by Joe Evans was deliberate actus reaus intended to prevent Affiant form pursuing the complaints against public officials and was, thereby, an act in retaliation for the filing of said complaints with the intent of obstructing justice, in violation of TxPC Section 36.06. (seeExhibit Complaint H attached)
- Evans Tampered Witness
- In the instant case, Defendant, as a result of the false criminal complaint filed by Evans, was actively prosecuted by the very officials Affiant had witnessed against. Affiant was, thereby, prevented from pursuing said allegations Affiant had made against Attorney Caldwell, Judge Fletcher, and others. Evans false complaint against Affiant caused the malicious prosecution of Affiant and tampered with Affiant as a witness in violation of TxPC Section 36.05 (supra). (see Exhibit Complaint O attached)
- Evans Secreted Documents From The Grand Jury
- One month after Affiant filed the above referenced documents with Evans, on the 27th day of April 2009, Evans prepared a criminal complaint against Affiant accusing Affiant of “operating a private investigating business without a license.”(see Exhibit B attached) The complaint contained a bald statement accusing Affiant of “operating a private investigating business without a license,” but did not reference any particular statute; neither did the complaint state any facts supporting the allegation of an offense. On checking the court record, there is no evidence that an affidavit of fact was filed with the court by Evans in support of the complaint.
- In as much as Evans is a career police officer and past county sheriff,
it cannot be construed that he was somehow ignorant of the law concerning the
filing of criminal complaints.
It is said, however, that this construction of the Act will not save it from the infirmity of vagueness since neither a law enforcement official nor a trial judge can know with sufficient definiteness the range of rights that are constitutional. But that criticism is wide of the mark. For the specific intent required by the Act is an intent to deprive a person of a right which has been made specific either by the express terms of the Constitution or laws of the United States or by decisions interpreting them. Take the case of a local officer who persists in enforcing a type of ordinance which the Court has held invalid as violative of the guarantees of free speech or freedom of worship. Or a local official continues to select juries in a manner which flies in the teeth of decisions of the Court. If those acts are done willfully, how can the officer possibly claim that he had no fair warning that his acts were prohibited by the statute? He violates the statute not merely because he has a bad purpose but because he acts in defiance of announced rules of law. He who defies a [*105] decision interpreting the Constitution knows precisely what he is doing. If sane, he hardly may be heard to say that he knew not what he did. 9SCREWS ET AL. v. UNITEDSTATES, 325 U.S. 91, 105)
- According to the testimony of Evans, Evans did not deliver the above referenced complaints to the grand jury, but instead gave them to Elmer Beckworth.
- Defendant, on cross-examining Evans asked Evans to tell the court what the elements of the alleged crime were, to which Evens testified that he did not know. Affiant then asked Evans what would constitute a violation, to which Evens testified that he had no idea. Evans testified that he filed the complaint because prosecutor Caldwell told Evans that the filing by Affiant was a crime.
- Evans, by his testimony, did not deliver the documents which were put in his custody to the grand jury. The document were surrendered to Evens under the stipulation that he would deliver them to the foreman of the grand jury. Evans, acting as bailiff for the grand jury apparently took it upon himself to determine what was good for the grand jury to see and what was not good for them to see. Affiant can find no law, rule, regulation, or starie decisis that would extend the security service of a bailiff to making determinations as to what the grand jury should see and what they should not see. (See Exhibit Complaint K)
- Evans and Caldwell
- Joe Evans, and Craig Caldwell conspired, one with the other, toward a malicious prosecution of Affiant in retaliation for Affiant having filed criminal allegations against Caldwell with the Cherokee County grand jury. In furtherance of the above referenced conspiracy, Evans prepared and presented a false criminal accusation against Affiant in order to obstruct justice by deflecting attention from the complaints filed by Affiant. Any reasonable person of ordinary prudence would construe that the filing of a criminal complaint against Affiant by Evans after consulting with the official complained of, amounted to an act of retaliation against Defendant which would be expected to have a chilling effect on Affiant towar preventing Affiant from persuing the prosecution of the accused which would have the effect shielding the accused from prosecution.
- It is the assertion and allegation of Affiant that the filing of the criminal against Affiant by Joe Evans was deliberate actus reaus intended to prevent Affiant form pursuing the complaints against public officials. The act by Evans, in furterance of the above referenced criminal conspiracy instigaged by Beckworth and carried out by Caldwell and had the intended effect of stopping any attempt by Affient to pursue prosecution of Caldwell, Judge Fletcher, and others and was, thereby, an act in retaliation for the filing of said complaints with the intent of obstructing justice, by shielding the accused from prosecutin in violation of TxPC Section 38.05. (see Criminal Complaint K attached)
- Beckworth Milsead Grand Jury
- In a phone conversation with Beckworth on the 26th day of March 2009, Beckworth told Affiant that the foreman was returning the complaints, Affiant had left with Evans. Beckworth told Complaint that the foreman of the grand jury refused to investigate into the allegations. Beckworth said that the foreman of the grand jury told him to tell Defendant, “You need to file the complaints with a policing agency so they can investigate them.”
- Affiant asked Beckworth, “Who told the foreman that?”
- Without answering, Beckworth went on to say that, Affiant could not waste the grand jury’s time with frivolous complaints. Affiant assured Beckworth that the complaints Affiant filed were not frivolous and again insisted to know who told the grand jury that it could only hear complaints investigated by a policing agency and not from a private citizen or a representative of broadcast media. Without answering Defendant’s question Beckworth ended the phone conversation.
- It is unreasonable to consider that the foreman of the grand jury would come to a conclusion that, on the face of it, is in direct contravention to the requirement of TxCCP Article 20.09 (supra). The only reasonable conclusion is that Beckworth gave legal advice to the foreman concerning the propriety of receiving notice from “some credible person.” It is reasonable to construe the above as the complaints filed by Affiant were returned to Defendant.
- If Beckworth is to be believed, the foreman of the Cherokee County Grand Jury failed to perform a duty s/he was required to perform as stipulated by TxCCP Article 20.09 (supra), and in the process committed misfeasance of office in violation of TxPC Section 39.02. (See Exhibit Complaint L ) , by giving flase legal advice to the foreman of the grand jury, and theregy, instead of giving legal advice, conspired with the foreman (See Exhibit Complaint L1 ), to tamper with Affiant's testimony by secreting criminal accusations form the grand jury panel (See Exhibit Complaint L2 )toward the purse of Obstructing Justice in violation of (see Exhibits Complaint L3 )
- Beckworth Prevented Foreman From Presenting Complaints to Grand Jury Panel
- For the purpose of the instant allegation, Affiant considers it reasonable to construe that the foreman failed to appraise the grand jury panel of the complaints filed by Defendant.
- An examination of the minutes of the grand jury as required to be kept by the District Clerk by TxCCP Article 20.22 will reflect no “true bill,” or “no bill” of the officials named in the complaint filed by Defendant. It must, therefore, be construed that the grand jury did not examine into the criminal allegations made by Complainant.
- It is unreasonable to construe that all the members of the grand jury would, at the same time, refuse to perform the one duty they are sworn to perform. It is more reasonable to presume that, if presented with the complaints, they would have voted to indict or not to indict and such a vote would be reflected in the minutes of the court as required by law.
- Form the reasonable person perspective, it is difficult to imagine that a grand jury foreman, presumably picked from among average citizens, and not necessarily learned counsel, would knowingly conspire with Beckworth toward criminal behavior. It is far more reasonable to believe that Beckworth never presented the above referenced criminal complaints to the foreman.
- If the above is the case, then Beckworth tampered with a government document in direct violation of the clear mandate of a special statute.
- TxCCP Articles 2.04 through 2.06 give clear directions to the prosecuting attorney upon having it made known to him/her that a crime has been committed. There is, however some question as to whether the prosecutor has discretion under those statutes. There does not appear to be any discretion written into statute, but the courts have granted a certain amount of discretion. However, TxCCP Article 2.03(supra) is a special statute in that it specifically addresses accusations against public officials. In that case, the Legislature is clear that there is no discretion allowed and the prosecutor must present complaints against public officials, felony or misdemeanor, to the grand jury. The requirement is reasonable as no prosecutor should be put in a position of deciding rather or not to prosecute someone s/he works with.
- Rather than considering that the grand jury all got together and decided to simply ignore the law and their duty thereunder, It is much more reasonable to believe that Beckworth told the foremanthat the police had to investigate criminal complaints before they were given to the grand jury. Such a conversation between Beckworth and the foreman of the grand jury rings of a criminal conspiracy between the foreman and Beckworth to deny Affiant in Defendant’s right to the equal protections of the laws.
- It is unreasonable to consider that the foreman of the grand jury, not being learned counsel, could be construed to have acted with a culpable mental state, but rather, acted in good faith reliance on someone the foreman had reason to believe was competent authority. Beckworth, however, acted with an evil mind toward a bad purpose by conspiring with the foreman toward a criminal conspiracy TxPC Section 15.02 (supra) (see Exhibits Complaint L1)to secret Defendant’s allegations from the body of the grand jury for the purpose of tampering with Affiant's testimony in violation of TxPC Section 36.05 (supra)(see Exhibits Complaint L2 ) toward the purse of Obstructing Justice in violation of (see Exhibits Complaint L3 )
- Caldwell
Conspired with Beckworth and Evans
- According to the testimony of Evans, Beckworth talked to Caldwell about the criminal complaints filed by Affiant with Evans. Caldwell then talked to Evans and directed Evans to file the complaint against Defendant. Since Caldwell was one of the persons accused in the complaints filed by Defendant, Beckworth committed a breach of his fiduciary duty to the citizens of the State of Texas by conspiring with Caldwell to initiate criminal prosecution against Affiant. Caldwell, for his part, had a duty to disqualify himself from any participation in any conversations or consultations concerning a prosecution of affiant, therefore, no action by Beckworth or Caldwell can be construed as having been performed in furtherance of his duty as a county attorney for Cherokee County, Texas.
- Both Beckworth’s and Caldwell’s actions in this matter cannot be construed as acts within the scope of their authority, but rather, were personal acts, performed in their individual capacities, and beyond the scope of any authority as the scope of official authority does not extend to criminal acts of criminal conspiracy (see TxPC Section 15.02 supra), in order to tamper with a witness for the purpose of shielding themselves and others from prosecution (see TxPC Section 38.05 supra). (see Exhibit Complaint N)
- Based on the above, Affiant alleges that Craig Caldwell conspired with Elmer Beckwort toward felony retaliation against Affiant in order to tamper with Affiant as a witness for the purpose of shielding Caldwell, Judge Fletcher, and others from prosecution.
- Caldwell Had Duty to Recuse Himself
- Prosecuting attorney, Craig Caldwell, abused his discretion by failing to recuse himself and cause to be appointed an attorney pro tem in accordance with TxCCP Article 2.07:
- In as much as Affiant had filed criminal allegations against Cherokee County Attorney, Craig Caldwell, he had a ministerial duty to disqualify himself from the instant proceedings and petition for the appointment of an attorney pro tem to hear the complaint by Evans. By the acts of Caldwell, it must be construed that Caldwell violated a law related to his office for the purpose of denying Affiant in the due course of the laws in violation of TxPC Section 39.03(supra). (see Exhibit Complaint O attached)
- Judge Fletcher Failed To Recuse Himself
- Judge Fletcher, upon being presented with the complaint
against Complainant had a duty to recuse himself from sitting as a magistrate
for the purpose of examining into the criminal allegation by Evans under Texas
Rules of Civil Procedure Rule 18b.
Rule 18b Grounds for Recusal and Disqualification of Judges
(a) Grounds for Disqualification. --A judge must disqualify in any proceeding in which:
(1) the judge has served as a lawyer in the matter in controversy, or a lawyer with whom the judge previously practiced law served during such association as a lawyer concerning the matter;
(2) the judge knows that, individually or as a fiduciary, the judge has an interest in the subject matter in controversy; or
(3) either of the parties may be related to the judge by affinity or consanguinity within the third degree.
(Emphasis added)
- In the instant case, Complainant had filed criminal
accusations with the grand jury against Judge Fletcher. The allegations gave
Judge Fletcher an interest in the potential testimony of Complainant as a
witness before the grand jury. Therefore, Judge Fletcher had a duty to recuse
himself in the interest of justice.
"...justice should not only be done, but should manifestly and undoubtedly be seen to be done." Lord Chief Justice Hewart, CJ
- The above referenced duty on the part of Judge Fletcher was ministerial and prescribed by law. By failing to perform a duty Judge Fletcher was statutorily required to perform, Judge Fletcher violated a law relating to his office and, in the process, denied Complainant in the full and free access to Complainant’s right to the due course of the laws, in violation of TxPC 39.03(supra). (see Criminal Affidavit Section P attached)
- Magistrate Fletcher Issued Warrant Without Authoirty
- On 21st day of May 2009, the Cherokee County Clerk issued a notice to Complainant ordering Complainant to appear on the 27th day of June 2009, for an arraignment hearing. This was the first notice to Complainant that a warrant had been issued. In as much as Complainant had never been arrested on the instant cause, Complainant had, therefore, never committed himself to the court on a promise to appear and, in as much as the notice was not in the form of a subpoena, Complainant had no duty to appear.
- Judge Fletcher, by causing the arrest warrant to issue in the above circumstances, exercised an authority Judge Fletcher did not have and, in the process, subjected Complainant to a denial of due process which resulted in the false imprisonment of Complainant in the Travis County Jail in violation of TxPC Sectoin 39.03 (supra).
- Judge Fletcher Tampered With A Government Document
- The record shows that Judge Fletcher, acting in the capacity of a
magistrate, did not examine into any evidence of a crime as no evidence of a
crime was presented to the court. If any evidence had been presented to
Judge Fletcher, said evidence would be in the records of the County Clerk as
commanded by TxCCP
Article 17.30 (supra).
Art. 17.30. SHALL CERTIFY PROCEEDINGS. The magistrate, before whom an examination has taken place upon a criminal accusation, shall certify to all the proceedings had before him, as well as where he discharges, holds to bail or commits, and transmit them, sealed up, to the court before which the Defendant may be tried, writing his name across the seals of the envelope. The voluntary statement of the defendant, the testimony, bail bonds, and every other proceeding in the case, shall be thus delivered to the clerk of the proper court, without delay.
- There is nothing in the court record to indicate that Magistrate Fletcher complied with the above requirement, as there is no envelope with the judge’s name written across the seal in the court record. Neither is there an affidavit in the form of a statement of facts. It, therefore, must be construed that Magistrate Fletcher failed to comply with TxCCP 17.30(supra) and in so doing secreted the evidence, used by Magistrate Fletcher to make a finding of probable, from the clerk of the court, cause in violation of TxPC Section 37.10:
- Judge Fletcher Found Probable Cause With No Evidence
- A warrant was issued for the arrest of Affiant subsequent to the filing of a criminal complaint by Joe Evans. (see Exhibit B) An examination of the complaint will show that no facts were stated in support of the allegation made. In misdemeanor cases a capias may be issued only on the request of the prosecution after an information and complaint have been filed charging the Affiant with an offense [C.C.P. Arts. 21.22, 23.04].
- The complaint supporting the information and capias must be made by a credible person and may be sworn to before the district or county attorney or magistrate [C.C.P. Art. 21.22].
- The complaint is sufficient to support the issuance of the capias if it contains the following [C.C.P. Art. 15.05; see Ch. 41, Indictment and Information ]:
- A complaint in this form must still state a source of knowledge or facts on which the magistrate can make an independent probable cause determination [see Green v. State, 615 S.W.2d 700, 705-706 (Tex. Crim. App. 1980) warrant invalid when based on complaint in form of affidavit by sheriff which merely alleged in conclusionary terms that he had reason to believe that Affiant committed offense; Young v. State, 776 S.W.2d 673, 677 (Tex. App., Amarillo 1989, no pet).
- It can be construed that Evans did not testify to any facts at the hearing held by Judge Fletcher on the 27th day of April 2009, wherein Judge Fletcher entered a finding of probable cause as, on the 20th day of June, 2011, Evans testified that he had no idea what constituted a violation of the act cited. Fletcher, by making a finding of probable cause when none existed, abused his discretion and denied Affiant in the due course of the laws in violation of TxPC Section 39.03.
- Evans Comitted Aggravated Perjury
- On the 27th day of April, 2009, Joe Evans filed a criminal complaint against Affiant claiming that Affiant operated a private investigating business without a license. Evans testified under oath on the 20th day of June 2011, that he had no idea what constitutes a violation of the act cited. Therefore, it must be construed that, at the time Evans swore to the criminal complaint, he did so with full knowledge of the falsity of the statments sworn to.
- Evans testified, on the 27th of Apris 2009, to the material fact that Evans had reason to believe and did believe that Affiant operated a private investigating business without a license then two years later, on the 20th day of June 2011, testifed that he had no idea what constituted a violation of the act.
- It cannot be construed that Evans was somehow ignorant of the requisites of a criminal complaint or the penalty for perjuring onself on such a complaint considering Evans was a career law enforcement officer. It must be construed that Evans knew full well that the complaint he filed was totally inadequate. By Evans’ own sworn testimony, he had no idea what constituted the crime of Operating an Investigation Business Without a License. When Evans swore out the complaint, he had no reason to believe nor did he believe that Affiant had committed a crime. Evans filed that complaint because Caldwell told him to do and in so doing testified to a knowledge and belief Evens knew full well he did not hold in violation of TxPC 37.03. (see Exhibit Complaint H)
- Judge Fletcher Suborned Perjury
- Judge Fletcher sat as a magistrate on the 27th day of April 2009, and heard the complaint filed by Joe Evans agaisnt affiant wherein Evans accused Affiant of operating a private investigating business without a license. Judge Fletcher was fully aware, at the time, that the allegations arose from the filing of criminal complaints against himself by affiant with the Cheorkee County Grand Jury. Judge Fletcher later presided over the hearing held on the 20th day of June 2011, wherein Joe Evans tesitifed that he had been promoted to file the complaint by Craig Caldwell and had no idea what constituted a violation of the act alleged.
- The hearing held on the 20th day of June 2011, was a franks hearing.
- Fletcher Issued Warrant Without Authoirty
- On 21st day of May 2009, the Cherokee County Clerk issued a notice to Affiant ordering Affiant to appear on the 27th day of June 2009, for an arraignment hearing. (see Attachment F). This was the first notice to Affiant that a warrant had been issued. In as much as Affiant had never been arrested on the instant cause, Affiant had, therefore, never committed himself to the court on a promise to appear and, in as much as the notice was not in the form of a subpoena, Affiant had no duty to appear.
- Judge Fletcher, by causing the arrest warrant to issue in the above circumstances, exercised an authority Judge Fletcher did not have and, in the process, subjected Affiant to a denial of due process in violation of TxPC Sectoin 39.03 (supra). (see Exhibit Complaint T)
- Fletcher Denied Constitutional Bail
- Affiant had reason to believe that complainant would be falsely imprisoned if Affiant complied with the false notice to appear from the Cherokee County Court, therefore, Affiant turned himself in to Denton County Justice of Peace, J. Hand and was released on a personal recognizance bond until such time as an examining trial could be held by Magistrate Hand.
- Since the Cherokee County Court had no authority to issue the above referenced warrant, Affiant not appear at the Cherokee County Court on the 27th day of June 2009. Affiant had never been arrested by said court and released on bond with the promise to appear before said court on a promise to appear on demand, the notice to appear issued by the Cherokee County Court instead of a subpoena, was without force and effect and placed no legal duty no Defendant. (see TxCCP Article 38.10 supra).
- When Affiant failed to appear at the County Court in Cherokee County, Judge Fletcher charged Affiant with “failure to appear’ and issued a warrant with a fee for release set at $5000.00 cash. This practice of demanding a cash fee instead of a bail bond was the tactic used by the court in the Fox case for the purpose of running Fox out of money so that Fox would wind trapped in jail awaiting trial. That is exactly what happened to both Robert Fox and David Baugh. Fox spent over a 180 days in jail and Baugh spent almost a year. Both were awaiting trials they ultimately won.
- The court was clearly using the same tactic to prevent Affiant from acting as a witness against Judge Fletcher, Prosecutor Caldwell and the other officials named by Defendant. The issuing of a warrant was an act for which Judge Fletcher lacked subject matter jurisdiction over Affiant and was, therefore, an act under color of Judge Fletcher’s authority which had the effect of denying Affiant in the right to the due course of the laws of the State of Texas in violation of TxPC Section 39.03. (see Exhibit Complaint U attached)
- Affiant Arrested In Austin on Improper Warrant
- Cherokee County left the warrant on which Affiant had been granted bail, open and subsequently Affiant was arrested in Travis Count at the City of Austin Municipal Court on 4th day of August 2010, and taken to the Travis County jail.
- Judge Fletcher, after Magistrate Hand, in Denton County, Texas had released Affiant a personal recognizance bond from the warrant issued by Judge Fletcher, did not recall the warrant. Subsequently Affiant was arrested in Travis Count at the City of Austin Municipal Court on 4th day of August 2010, and taken to the Travis County jail. Affiant was arrested on the above referenced warrant and taken, at virtual gunpoint, by City of Austin city marshals to the Travis County Jail and there imprisoned. A petition for Writ of Habeas Corpus was filed by friends of Affiant with the Travis County District Court and instead of hearing ordering the writ, the court released Affiant on a personal recognizance bond where Affiant remained until trial.
- The city marshals acted on good faith reliance on an existing warrant issued under the color of authority exercised by Judge Fletcher. In as much as there is no “false imprisonment” statute, the allegation here is one of Kidnapping as defined by TxPC Section 20.03.
- Judge Fletcher, by causing a false warrant to be issued against Defendant, is criminally responsible for the false arrest of and subsequent imprisonment of Affiant in violation of TxPC 20.02 (supra). (see Exhibit Complaint V)
- Ongoing Criminal Conspiracy
- Affiant had filed the above referenced complaints because of the alleged malicious practices of the court wherein the court retaliated against Fox and Baugh because both refused to plea guilty or enter into a plea agreement, but instead, elected to enter a not-guilty plea.
- Affiant will only address Robert Fox here as Fox’s case was heard in the county court, unlike Baugh who was prosecuted in the district court. In order to prevent Fox from being able to defend against the allegations made against him, it is alleged that the court issued multiple charges against Fox. Each time Fox appeared at court new charges were levied, 7 in all, and Fox would be re-arrested and forced to post bond repeatedly until Fox ran out of resources. Fox spent over 160 days in jail awaiting trial. At trial on all 7 accusations against Fox, after Prosecutor Caldwell presented the state’s case and before Fox put on any defense, the trial judge dismissed all charges. David Baugh, was prosecuted in the district court, spent over 300 days in jail awaiting trial that also resulted in a dismissal of all charges. ( Street Gang--See Exhibit Complaint W)
- Judge Fletcher Violated Duty to Recuse Himself
- On the 23rd day of April 2010, Affiant filed a motion to disqualify the presiding judge stating that the Honorable Judge Craig Fletcher had an interest in the cause. Since Affiant had filed criminal allegations against Judge Fletcher, the judge could be subject to criminal prosecution based on testimony Affiant could give to the grand jury.
- The constitutional right to due process of law entitles a person to a neutral judge [see Marshall v. Jerrico, Inc., 446 U.S. 238, 242, 100 S. Ct. 1610, 64 L. Ed. 2d 182 (1980) ]. While most matters relating to judicial disqualification do not rise to a constitutional level, in the instant case, where the judge has been accused of crime by the Defendant, the case can be considered extreme and warrants disqualification on the basis of bias and prejudice and is, therefore, constitutionally required [see Aetna Life Insurance Co. v. Lavoie, 475 U.S. 813, 820-821, 106 S. Ct. 1580, 89 L. Ed. 2d 823 (1986) (due process violated because of judge's direct interest in case)].
- The Texas Constitution prohibits judges from deciding cases in which they are interested [Tex. Const. art. 5 § 11].
- The prohibition applies when the judge knows he or she has an interest in the subject matter in controversy, whether of an individual or fiduciary nature [Tex. R. Civ. P. 18b(1)(b)].
- In the context of disqualification, interest is defined narrowly. As the Texas Supreme Court has stated, "it is a settled principle of law that the interest which disqualifies a judge is that interest, however small, which rests upon a direct pecuniary or personal interest in the result of the case presented to the judge or court" [ Cameron v. Greenhill, 582 S.W.2d 775, 776 (Tex. 1979) ; Spigener v. Wallis, 80 S.W.3d 174, 179, 181 (Tex. App.--Waco 2002, no pet.).
- Judge Fletcher had a ministerial duty to recuse himself from the instant cause. By failing to do so, Judge Fletcher denies Affiant in the due process right to a fair jurist in the first instance and thereby, violated TxPC Section 39.03(supar). (see Exhibit Complaint X)
- Judge Ovard Exercised and Autoirity Denied Him By Law
- The Honorable Judge Fletcher forwarded the Motion to Disqualify to the head administrative judge of the judicial district, the Honorable Judge, John Ovard. Judge Ovard, on the 24th day of January 2011, issued an order stating that he would treat the Motion to Disqualify as a Motion to Recuse and dismissed the motion since it was not verified. (see Attachment K)
- Judge Ovard’s actions, in the instant case, amounted to the exercise of an authority specifically denied by the Texas Legislature and had the effect of denying Affiant in the right to the due course of the laws of the State of Texas in violation of TxPC Section 39.03(supra). ). Most of the more serious allegations made against Judge Fletcher would not have occurred had Judge Ovard acted in accordance with law and exercised the statutory protection put into law by the Legislature for just such a situation as the one in the instant case. (see Exhibit Complaint Y attached)
- Constitutional Due Process (Denied Right to File Motion) -- Fletcher
- Judge Fletcher, on the 21st day of June 2011, verbally ruled in open court that, since Affiant filed a disqualification that was not verified, that the opportunity to move for disqualification was waived and complainant could not file another.
- A constitutional disqualification may be raised at any stage of the proceedings and cannot be waived [ Spigener v. Wallis, 80 S.W.3d 174, 180 (Tex. App.--Waco 2002, no pet.)]. A judge who is subject to disqualification is entirely without jurisdiction in the case, and any judgment the judge renders is void and without effect [ Rosell v. Central West Motor Stages, Inc., 89 S.W.3d 643, 650-651 (Tex. App.--Dallas 2002, pet. denied) ; see § 110A.03[4.
- Affiant filed criminal allegations with the Cherokee County Grand Jury naming Judge Fletcher, giving the judge an interest in preventing Affiant from testifying before the grand jury. Judge Fletcher, by ruling on his own disqualification acted in direct violation of Texas Rules of Civil Procedure Rule 18a(f):
- The prescription above is not subject to the discretion of the judge. In this case, Judge Fletcher exercised an authority specifically denied him by the clear language of the law.
- Judge Fletcher’s refusal to abide by the clearly worded statutory duty had the effect of subjecting Affiant to a malicious prosecution in direct violation of TxPC Section 39.03 (supra). (see Exhibit Complaint Z attached)
- AA Official Oppression (Took Action After Disqualification) -- Fletcher
- After failing to properly act on the motion to disqualify himself, Judge Fletcher, continued to makes rulings in the case.
- See Carson v. McAdams, 908 S.W.2d 228, 228-29 (Tex. App.BHouston [1st Dist.] 1993, orig. proceeding); In re M.E.H., 2004 WL 1471092, *2 (Tex. App.BFort Worth July 1, 2004, no pet.).
- Judge Fletcher, by continuing to make rulings in the case after Affiant filed the Motion to Disqualify Judge Fletcher and before a hearing was held on the motion, breached a statutorily mandated duty and in the process denied Affiant in the full and free access to Defendant’s right to the due course of the laws, in violation of TxPC 39.03(supra). The Texas Constitution sets out the grounds for disqualification [Tex. Const. art. 5 § 11]:
- Defendant, in his Motion to Disqualify demonstrated that Judge Fletcher had a personal interest in the instant cause as, one month prior to the issuance of the warrant for the arrest of Defendant, Affiant had made criminal allegations against Judge Fletcher, to the Cherokee County Grand Jury. Judge Fletcher had a strong personal interest in keeping Affiant from acting as a witness before the grand jury concerning the criminal allegations brought by Defendant.
- Judge Fletcher, by continuing to make rulings in the case after Defendant’s Motion to Disqualify Judge Fletcher was filed in the court exercised an authority specifically denied to him by the clear language of TxCCP 18a(f), and in so doing denied Affiant in the due course of the laws in violation of TxPC Section 39.03. (see Exhibit Complaint AA attached)
- Aggravated Perury -- Evans
- At the hearing held on 25th day of April 2011, at a hearing on Defendant’s Motion to Quash Complaint and Motion to Quash Information, Judge Fletcher, after hearing testimony from Joe Evans wherein Evans testified that the complaint lacked facts alleged in support of the allegations as Evans had no idea what constituted a violation. Evans testified that he only filed the complaint because Caldwell told him that filing a complaint with the grand jury without a private investigator’s license was a crime.
- This testimony was inconsistent with the language of the complaint itself which was before the court.
- Evans’ contradictory testimony clearly demonstrated that, either when Evans swore under oath that he had reason to believe Affiant committed the crime of “Operating a Private Investigating Business Without a License,” or when he testified in court that he had no idea what constituted a violation, was aggravated perjury.
- In as much as the complaint was issued shortly after Affiant filed criminal charges against Judge Fletcher and Prosecutor Caldwell, it can hardly be construed that Judge Fletcher was somehow unaware of the materiality of the inconsistent statements made by Evans.
- Evans, by his own testimony, presented conflicting statements to the court on two separate occasions in clear violation of TxPC Section 37.03 (supra). (see Exhibit Complaint AB attached)
- Subornation of Perjury -- Fletcher
- At the above referenced hearing, Judge Fletcher refused to quash the complaint and information. Affiant objected to the complaint and information claiming that there were no facts alleged. Joe Evans had just testified to inconsistent facts.
- When Evans swore to the complaint, he did so under oath and swore that he had reason to believe that Affiant had committed the crime of “Operating an Investigating Business Without a License.” Evans later testified, under oath, that he had no idea what constituted a violation of the act.
- All the above was before the court when Judge Fletcher refused to quash the complaint and information. Said act by Judge Fletcher had the effect of furthering the act of Aggravated Perjury (TxPC Section 37.03 supra) by Evans if furtherance of the acts of Tampering With a Witness (TxPC Section 36.05 supra) and Obstruction/Retaliation (TxPC Section 36.06 supra). In as much as Judge Fletcher acted with full knowledge of the nature of the acts committed, Judge Fletcher is culpable for the acts herein suborned.
- Judge Fletcher, being learned counsel and being intimately familiar with all the facts of the case cannot be said to have acted in good faith. Neither can the fact that Judge Fletcher was acting in the capacity of presiding judge be construed to shield him from the criminal responsibility for his acts.
- Judge Fletcher, by failing to dismiss the allegations against Affiant in the face of clearly conflicting statements by the complainant, acted to further the perjury committed by Evans. Judge Fletcher, by his act in concert and collusion with the acts of Evans is equally culpable for the crime of Aggravated Perjury, in violation of TxPC Section 37.03(supra) (see Exhibit Complaint AC attached)
- Official Oppression and Criminal Conspiracy (ex parte hearing) – Fletcher & Caldwell
- Affiant filed a motion to quash the complaint and information filed against Defendant. At a hearing held on the 23rd day of April 2011, Judge Fletcher denied the motion in open court. On the 27th day of April 2011, prosecutor Caldwell filed a motion for an amended information. Affiant was never noticed of the filing, neither does a certificate of service appear in the court record. (see Attachment M) On the 29th day of April 2011, Judge Fletcher granted the motion in an ex parte hearing. (see Attachment N)
- The granting of the motion to amend the information 4 days after Judge Fletcher denied a motion to quash said information was a clear indication that the information complained of was insufficient. The clear implication is that Judge Fletcher knew full well the information was insufficient when he refused to quash it. For reasons only the actors can know, Judge Fletcher and Prosecutor Caldwell conspired, one with the other to amend the information by holding a secret hearing.
- Judge Fletcher, acting in concert and collusion with Prosecutor Caldwell, by holding an ex parte hearing for which Affiant had not received service, conspired with Caldwell, in violation of TxPC Section 15.02 (supra) (see Exhibit Complaint DD attached) to deny Affiant in the due course of the law in direct violation of TxPC Section 39.03 (supra). (see Exhibit Complaint AD-1 attached). (see Exhibit Complaint AD-2 attached) (see Exhibit Complaint AD-3 attached)
- Amended Information Evidence of Intent Toward Retaliation and Tampering With Witness
- The Amended Information filed by Caldwell (see Exhibit __) alleges that Affiant committed the crime of “operating a private investigating business without a license” because Affiant “engaged in the business of securing evidence for use before a Court, i.e. a Grand Jury empaneled by the Second a Judicial District Court of Cherokee County Texas.”
- In order for the grand jury to be a “court,” it would necessarily have to be a member of the judicial branch of government, which it is not.
-
Even if the grand jury were considered a part of the court for the
purpose of Texas Occupations Code 1702.104, the particular speech complained of
by Evans is a protected speech as the Legislature designated any interference
with such speech as an act of retaliation under TxPC
Section 36.06 as follows:
Sec. 36.06. OBSTRUCTION OR RETALIATION.
(a) A person commits an offense if he intentionally or knowingly harms or threatens to harm another by an unlawful act:
(1) in retaliation for or on account of the service or status of another as a:
(A) public servant, witness, prospective witness, or informant; or
(B) person who has reported or who the actor knows intends to report the occurrence of a crime; or
(2) to prevent or delay the service of another as a:
(A) public servant, witness, prospective witness, or informant; or
(B) person who has reported or who the actor knows intends to report the occurrence of a crime. (Emphasis added.)
- The actus reus on the part of Judge Fletcher and Prosecutor Caldwell in holding the secret hearing amended information is clear evidence of mens rea, toward preventing Affiant from performing the civic duty of reporting crime. (see Exhibit Complaint AE attached) (see Exhibit Complaint AE-1 attached)
- Fletcher Denied MOtion to Disqualify Himself
-
Judge Fletcher, in open court, denied a motion to disqualify himself and
failed to forward the motion to Judge Ovard.
Texas Rules of Civil Procedure Rule 18a(f)(2) Restrictions on Further Action.
(A) Motion Filed Before Evidence Offered at Trial. --If a motion is filed before evidence has been offered at trial, the respondent judge must take no further action in the case until the motion has been decided, except for good cause stated in writing or on the record.
- Said act had the effect of statutory estoppel, preventing Judge Fletcher from taking any action in the instant cause. Any acts taken, to include any acts by Phifer will be subject to review by a grand jury as acts without authority that are in direct violation of the very strict rule of law which have the effect of violation Texas Penal Code Section 39.02. In as much as the actions are calculated to tamper with a witness (Texas Penal Code Section 36.05) and obstruct justice (Texas Penal Code Section 36.06), said acts deny Affiant in the due course of the laws of the state of Texas in violation of Texas Penal Code Section 39.03. (see Exhibit Complaint AF attached)
- Official Oppression (ruling while disqualified) -- Ovard
- On release, Affiant was given a package containing the Motion to Disqualify Judge Fletcher and other documents intended for the courts. As soon as Affiant was released from custody, about 2:30 in the afternoon on the 25th day of October 2011, Affiant went to the Cherokee County legal library in the Cherokee County Courthouse and prepared the second Motion to Disqualify Judge Fletcher and an Amended A Motion for a New Trial. The above was a second Motion to Disqualify, and should not be confused with the amended filing of the first Motion to Disqualify Judge Fletcher as each was based on different facts. By the time the documents were ready it was 4:58 P.M., so Affiant was unable to secure a notary before the clerk closed, so Affiant filed the motion without verification.
- Affiant was scheduled to appear before the court on the 27th day of October 2011 for a hearing on one of the contempt charges issued by Judge Fletcher. Before the hearing, Affiant filed with the court a notarized copy of the Motion to Disqualify Judge Fletcher.
-
At the hearing held on the 27th day of October 2011, Affiant
was presented with a notice of denial of Defendants’ second Motion to
Disqualify Judge Craig Fletcher. Said notice was signed by the head
administrative judge of the district, Judge John Ovard.
As referenced above, Affiant had already filed a motion to disqualify Judge Ovard, therefore, Judge Ovard had
no power to rule on Defendant’s second Motion to Disqualify Judge Fletcher and
the ruling was void on its face. Judge Ovard
had a duty to forward the motion to the Chief Justice of the Texas Supreme
Court, Judge Jefferson.
Rule 18a Recusal and Disqualification of Judges
(g) Duties of Regional Presiding Judge.
(1) Motion. --The regional presiding judge must rule on a referred motion or assign a judge to rule. If a party files a motion to recuse or disqualify the regional presiding judge, the regional presiding judge may still assign a judge to rule on the original, referred motion. Alternatively, the regional presiding judge may sign and file with the clerk an order referring the second motion to the Chief Justice for consideration.
Judge Ovard ruled on a motion when Judge Ovard was disqualified.
Rule 18a Recusal and Disqualification of Judges
(f) Duties of the Respondent Judge; Failure to Comply.
(1) Responding to the Motion. --Regardless of whether the motion complies with this rule, the respondent judge, within three business days after the motion is filed, must either:
(A) sign and file with the clerk an order of recusal or disqualification; or
(B) sign and file with the clerk an order referring the motion to the regional presiding judge.
-
Since Judge Ovard was the one disqualified,
the only person left to rule on the motion was the Chief Justice of the Supreme
Court. Judge Ovard, being learned counsel, had
constructive notice of his disqualification as the clerk of the court was
commanded by law to forward said notice to him.
Rule 18a Recusal and Disqualification of Judges
(e) Duty of the Clerk.
(1) Delivery of a Motion or Response. --When a motion or response is filed, the clerk of the court must immediately deliver a copy to the respondent judge and to the presiding judge of the administrative judicial region in which the court is located ("the regional presiding judge").
- The act by Judge Ovard of denying Defendant’s motion to disqualify, regardless of the presence or lack of grounds, was in direct violation of Rule 18a, and, thereby, had the effect of denying Affiant in the due course of the laws in violation of TxPC Section 39.03 (supra). (see Exhibit Complaint GG )
- Judge Fletcher Shows Extreme Prejudice At Trial
- At trial on the charge of “Operating a Private Investigating Business Without a License,” Judge Fletcher demonstrate extreme prejudice by overruling every single objection by defendant, even going to so far as to hold Affiant in contempt of court to prevent Affiant from lodging objections so that Affiant would be prevented from preserving errors for appeal. Judge Fletcher further admonished Affiant and ordered Affiant not to notice the court of defendant’s exception to the court’s rulings.
- Judge Fletcher sustained every single objection by the prosecution attorney and prevented Affiant from raising objections to the court’s ruling.
- Judge Fletcher also charged Affiant with contempt in order to prevent Affiant from asking a leading questions on cross examination of a witness. The cross examination would have demonstrated aggravated perjury on the part of the witness. When Affiant challenged an inconsistent statement by the witness, Judge Fletcher stopped the trial and charged Affiant with contempt, without explanation. Affiant was, thereby, prevented from further cross examination of the witness.
- Judge Fletcher’s improper practices in the court had the effect of denying Affiant in the due course of the law in violation of TxPC Section 39.03. (see Exhibit Complaint AH attached)
- II Judge Fletcher Miss-stated The Law to The Jury
- During the trial, Judge Fletcher told the jury that there was no law giving a citizen the right to file criminal complaints with the grand jury. Court watchers, after the trail, polled the jurors and the jurors stated that said statement by Judge Fletcher was a factor in their decision to convict Defendant.
- The proactive statement of law by Judge Fletcher was patently false on two counts:
-
First, there is a law that allows citizens to file criminal complaints
with the grand jury. Texas Code of Criminal Procedure (TxCCP) Article 20.09 reads as follows:
Art. 20.09. DUTIES OF GRAND JURY. The grand jury shall inquire into all offenses liable to indictment of which any member may have knowledge, or of which they shall be informed by the attorney representing the State, or any other credible person.
- In order to give full force and effect to the above legislation any person who has never been convicted of a felony and is above the age of 18 must be allowed to bring criminal allegations to the attention to the grand jury.
- Second, the state of law by Judge Fletcher was false and misleading by omission, in that Judge Fletcher made the statement with the clear implication that a citizen may only do what a citizen is specifically authorized to do by law. When in fact, that restriction only applies to public officials. Judge Fletcher failed to inform the jury that citizens may do anything they want to do unless they are specifically prohibited by law. There is no law preventing a citizen from bringing offenses to the knowledge of the grand jury.
- Therefore, the proactive statement of law by Judge Fletcher was patently untrue and misleading. The statement has the effect of tampering with the jury and denying Affiant in defendant’s right to a fair trial before an unbiased jury in violation of TxPC Section 39.05(supra) and TxPC Section 39.03. (see Exhibit Complaint AI )
- Affiant Denied Counsel
- On the 14th day of October, 2011, Affiant was taken from the jail and brought before Judge Fletcher for a hearing on the first of the two contempt charged filed against defendant. Affiant was without counsel and had been held in the Cherokee County jail since conviction on the charge without bail and was prevented by jail personnel from contacting an attorney. Affiant requested appointment of counsel with the stipulation that Affiant would make arrangements to pay counsel. Judge Fletcher refused to appoint counsel and attempted to force a hearing on the contempt of court charge without counsel. Affiant objected to any hearing without counsel. Judge Fletcher continued the hearing until the 27th day of October, 2011, the date the second charge was scheduled for hearing.
- In as much as Affiant was being held in solitary confinement without bail and had been for over two weeks, Affiant was forced to waive the right to counsel for the purpose of a bail hearing. At said hearing, Caldwell introduced improper evidence and the court denied Affiant a constitutional bail bond. Judge Fletcher set a cash bond at twice the amount the testimony in court indicated Affiant could raise for release as retaliation for Defendant’s having filed criminal complaints against Judge Fletcher, et al, in violation of TxPC Section 39.03. (see Exhibit Complaint AJ attached)
- Denied access to courts by Sheriff Campbell
- After trial Affiant was remanded to the Cherokee County Jail on the 28th day of September 2011. While being held in solitary confinement, Affiant made repeated requests for access to the legal library. Finally, after Affiant prepared a complaint and presented it to the jailers, Affiant was taken to a room used as a chapel. There was nothing of a legal nature in the room. There was a computer sitting the floor unplugged which Affiant did not dare touch for fear of recrimination by the jailers.
- On the 14th day of October 2011, Affiant was taken to the Cherokee County Court At Law where a hearing was intended to be held on two contempt charges. At that hearing Affiant asked about a legal library and was informed that the computer that had been disconnected and put in the floor was the legal library.
- Affiant with no legal resources, prepared a second motion to disqualify Judge Fletcher written by hand on whatever paper Affiant could locate. Affiant repeatedly requested a notary to verify the document but none was made available to Defendant. After waiting several days it became apparent that no notary would be made available so, on the 21st day of October 2011, Affiant presented same to the jailers at the Cherokee County Jail. Defendant’s radio show co-host, Deborah Stevens, had sent a letter explaining how an inmate could swear to the document without a notary, but that letter was never given to Affiant and was returned to Mrs. Stevens.
- When Affiant was released from jail on the 25th day of November 2011, the hand written Motion to Disqualify Judge Fletcher (see Attachment __) was returned to Affiant unfiled.
- Because Affiant was denied access to legal research and Affiant was denied counsel and denied opportunity to seek counsel, and denied access to the courts, Affiant was denied in the due course of the laws by Sheriff James Campbell acting in the capacity of Sheriff of Cherokee County and respondeat superior for the deputies working the jail who denied Affiant in his rights. By establishing and maintaining a policy which violated the rights of Defendant, Sheriff James Campbell violated TxPC Section 39.03. (see Exhibit Complaint AK attached)
- Fletcher Denied Affiant In A Bail Bond
- After the verdict and assessment of punishment in the instant cause, on the 28th day of September, 2011, Affiant was remanded to the custody of the Cherokee County Sheriff and remanded to the Cherokee County jail. Affiant was held in jail, without bail, until the 14th day of October, 2011, when Affiant was brought before the court to answer a charge of contempt of court. When Affiant objected to the hearing without counsel, Judge Fletcher offered to hold a bail hearing if Affiant would waive his right to counsel for the purpose of the hearing. Affiant agreed and a hearing was held.
- Affiant asked the court to continue the personal recognizance bond Affiant has been on for the last year. Prosecuting attorney, Craig Caldwell, asked the court to set bail at $7500.00. Instead of setting a bail bond, Judge Fletcher accessed a fee of $5000.00 in order for Affiant to secure release.
- The Texas and United States Constitutions guarantee Affiant the right to a reasonable bond. The Texas Code of Criminal Procedure at Article 17.01 defines a bail bond as follows:
- The right to bond is Constitutionally protected and the court has no authority to deny it except for cause shown. In the instant case, there was no cause shown. In fact, the prosecuting attorney specifically asked the court to set a bail bond. Affiant specifically asked Judge Fletcher to set a bail bond as defined by the Texas Code of Criminal Procedure. Instead, Judge Fletcher denied Affiant in a bail bond and, after it was determined that Affiant could come up with a maximum of $2000.00, Judge Fletcher set a fee of $5000.00 cash in order for Affiant to secure release from jail pending appeal.
- The court may not capriciously and arbitrarily deny bail. Those instances when bail can be denied have also been addressed by the Texas Constitution:
- Judge Fletcher exercised and authority not granted by the Legislature and, in the process, denied Affiant in the full and free access to the Constitutionally protected right to reasonable bail. Judge Fletcher, after receiving testimony form the prosecuting attorney that Affiant has received $2000 in donations from listeners to Defendant’s radio station for a defense fund, set a fee at 2 ½ times what the court had reason to believe Affiant could raise.
- If the court had set bail at $10,000.00 the state would have been better protected and Affiant would have been able to secure bail by signing a bail bond or securing a bondsman which would have cost a maximum of 20% of the bail which would have been $2000.00. Judge Fletcher’s action demonstrates precisely the evil the Constitutional protection was intended to prevent. Judge Fletcher created a condition to where, either Affiant would have to sit in jail awaiting adjudication of Defendant’s appeal, or somehow come up with 2 ½ times what the evidence demonstrated Affiant could come up with, then be out of jail with no funds to secure counsel.
- Judge Fletcher exercised and authority not granted by the Legislature and, in the process, denied Affiant in the full and free access to the Constitutionally protected right to reasonable bail. In so doing, Judge Fletcher violated a law relating to his office and in the process denied Affiant in the full and free access to a Constitutionally protected right in violation of Texas Penal Code Section 39.03(supra). (see Exhibit Complaint AL)
- Disqualified Judge Ovard Appointed Judge Phifer
- Affiant was notified on the 22nd day of November 2011, that Judge Phifer had been assigned to hear the motion to recuse Judge Fletcher. In as much as Affiant only had one business day in which to file the motion, according to Texas Rules of Civil Procedure 18a(e), the instant motion is timely filed.
- On the 25th day of April 2011, Affiant filed a Motion to Disqualify Judge Ovard, the head administrative judge of the district. The instant motion to recuse is a subsequent motion filed after the motion to disqualify Judge Ovard. Under Texas Rules of Civil Procedure, 18a(g)(1):
- Judge Ovard had a duty to refer the second motion to the Chief Justice of the Supreme Court for consideration. Judge Ovard failed to refer the motion as required an, in the process, denied Affiant in the due course of the law in violation of TxPC Section 39.03. (see Exhibit Complaint AM )
- Phifer subject to accusations in associated case
- Affiant has been subjected to a malicious prosecution because of filing criminal allegations against Judge Fletcher and Prosecutor Caldwell in the Robert Fox case. That case is associated with and grew out of the David Baugh case where in Judge Phifer committed similar acts against David Baugh as Judge Fletcher committed against Robert Fox. Judge Phifer held David Baugh in jail over 300 days when Baugh could not make bail. Judge Phifer was compelled by law to release Baugh after 145 day. Judge Phifer was, at the least, tangentially connected to the instant cause by way of the complaints presented by Affiant to Evans and intended for the Cherokee County Grand Jury.
- More specifically, Affiant filed a Writ of Habeas Corpus with Judge Phifer who ordered the District Clerk to return the filing to Affiant with a claim that the court could not accept the filing as the court did not keep a miscellaneous file in which to record the filing. Judge Phifer had an interest in the instant case as Judge Phifer is subject to similar criminal allegations and possible criminal prosecution and subsequent quo warranto removal from office for his abuse of Defendant. Judge Phifer, by failing to recuse himself committed abuse of his office and denied Affiant in the due course of the law in violation of TxPC Section 39.03. (see Exhibit Complaint AN)
- Phifer Refused to Accept Motion Properly Filed
- Defendant, on the 28th day of November 2011, at a hearing on the Motion to Recuse Judge Fletcher, see Attachment ___), Judge Phifer denied Affiant in the due course of the laws by refusing to act in accordance with TxRCivPro Rule 18a when presented with a verified motion to disqualify himself. Judge Phifer continued to sit in the hearing to recuse Judge Fletcher and in spite of the overwhelming evidence of prejudice and bias, refused to recuse Judge Fletcher.
- Affiant received notice by fax on the 22nd day of November 2011 that Judge Ovard had assigned Judge Phifer to hear Defendant’s Motion to Recuse Judge Fletcher. In as much as Thanksgiving was on the 24th of November and the mail would not run on the 25th, Affiant only had one day in which to respond. Affiant faxed a Motion to Disqualify Judge Phifer to the court on the 23rd day of November 2011. At the hearing held on the 28th day of November 2011, Affiant filed a verified Motion to Disqualify Judge Phifer with the judge in court. Judge Phifer, sitting for the purpose of hearing the Motion to Disqualify Judge Fletcher, refused act on the Motion to Disqualify himself as required by TxRCivPro Rule 18a, even after he accepted the motion into the court.
- Judge Phifer, by denying Affiant in the right to petition the court for redress of grievance and in the process denied Affiant in the due course of the laws, acted with a total lack of subject matter jurisdiction and in criminal violation TxPC Section 39.03. (See Exhibit Complaint AO )
Art. 2.03. NEGLECT OF DUTY. (a) It shall be the duty of the attorney representing the State to present by information to the court having jurisdiction, any officer for neglect or failure of any duty enjoined upon such officer, when such neglect or failure can be presented by information, whenever it shall come to the knowledge of said attorney that there has been a neglect or failure of duty upon the part of said officer; and he shall bring to the notice of the grand jury any act of violation of law or neglect or failure of duty upon the part of any officer, when such violation, neglect or failure is not presented by information, and whenever the same may come to his knowledge. (Emphasis added)
Sec. 39.015. CONCURRENT JURISDICTION TO PROSECUTE OFFENSES UNDER THIS CHAPTER. With the consent of the appropriate local county or district attorney, the attorney general has concurrent jurisdiction with that consenting local prosecutor to prosecute an offense under this chapter.
Art. 2.03. NEGLECT OF DUTY. (a) It shall be the duty of the attorney representing the State to present by information to the court having jurisdiction, any officer for neglect or failure of any duty enjoined upon such officer, when such neglect or failure can be presented by information, whenever it shall come to the knowledge of said attorney that there has been a neglect or failure of duty upon the part of said officer; and he shall bring to the notice of the grand jury any act of violation of law or neglect or failure of duty upon the part of any officer, when such violation, neglect or failure is not presented by information, and whenever the same may come to his knowledge. (Emphasis added)
Sec. 39.02. ABUSE OF OFFICIAL CAPACITY.
(a) A public servant commits an offense if, with intent to obtain a benefit or with intent to harm or defraud another, he intentionally or knowingly:
(1) violates a law relating to the public servant's office or employment. (see Exhibit Compliant C)
Sec. 39.02. ABUSE OF OFFICIAL CAPACITY.
(a) A public servant commits an offense if, with intent to obtain a benefit or with intent to harm or defraud another, he intentionally or knowingly:
(1) violates a law relating to the public servant's office or employment.
Sec. 38.05. HINDERING APPREHENSION OR PROSECUTION.
(a) A person commits an offense if, with intent to hinder the arrest, prosecution, conviction, or punishment of another for an offense or, with intent to hinder the arrest, detention, adjudication, or disposition of a child for engaging in delinquent conduct that violates a penal law of the state, or with intent to hinder the arrest of another under the authority of a warrant or capias, he:
(1) harbors or conceals the other;
(2) provides or aids in providing the other with any means of avoiding arrest or effecting escape; or
(3) warns the other of impending discovery or apprehension.
(b) It is a defense to prosecution under Subsection (a)(3) that the warning was given in connection with an effort to bring another into compliance with the law.
(c) Except as provided by Subsection (d), an offense under this section is a Class A misdemeanor.
(d) An offense under this section is a felony of the third degree if the person who is harbored, concealed, provided with a means of avoiding arrest or effecting escape, or warned of discovery or apprehension is under arrest for, charged with, or convicted of a felony, including an offense under Section 62.102, Code of Criminal Procedure, or is in custody or detention for, is alleged in a petition to have engaged in, or has been adjudicated as having engaged in delinquent conduct that violates a penal law of the grade of felony, including an offense under Section 62.102, Code of Criminal Procedure, and the person charged under this section knew that the person they harbored, concealed, provided with a means of avoiding arrest or effecting escape, or warned of discovery or apprehension is under arrest for, charged with, or convicted of a felony, or is in custody or detention for, is alleged in a petition to have engaged in, or has been adjudicated as having engaged in delinquent conduct that violates a penal law of the grade of felony.
Art. 2.03. NEGLECT OF DUTY. (a) It shall be the duty of the attorney representing the State to present by information to the court having jurisdiction, any officer for neglect or failure of any duty enjoined upon such officer, when such neglect or failure can be presented by information, whenever it shall come to the knowledge of said attorney that there has been a neglect or failure of duty upon the part of said officer; and he shall bring to the notice of the grand jury any act of violation of law or neglect or failure of duty upon the part of any officer, when such violation, neglect or failure is not presented by information, and whenever the same may come to his knowledge. (Emphasis added)
Section 1 of the Fourteenth Amendment to the United States Constitution
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Art. 2.03. NEGLECT OF DUTY. (a) It shall be the duty of the attorney representing the State to present by information to the court having jurisdiction, any officer for neglect or failure of any duty enjoined upon such officer, when such neglect or failure can be presented by information, whenever it shall come to the knowledge of said attorney that there has been a neglect or failure of duty upon the part of said officer; and he shall bring to the notice of the grand jury any act of violation of law or neglect or failure of duty upon the part of any officer, when such violation, neglect or failure is not presented by information, and whenever the same may come to his knowledge. (Emphasis added)
Sec. 39.03. OFFICIAL OPPRESSION.
(a) A public servant acting under color of his office or employment commits an offense if he:
(1) intentionally subjects another to mistreatment or to arrest, detention, search, seizure, dispossession, assessment, or lien that he knows is unlawful;
(2) intentionally denies or impedes another in the exercise or enjoyment of any right, privilege, power, or immunity, knowing his conduct is unlawful; or
(3) intentionally subjects another to sexual harassment.
(b) For purposes of this section, a public servant acts under color of his office or employment if he acts or purports to act in an official capacity or takes advantage of such actual or purported capacity.
(c) In this section, "sexual harassment" means unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature, submission to which is made a term or condition of a person's exercise or enjoyment of any right, privilege, power, or immunity, either explicitly or implicitly.
(d) An offense under this section is a Class A misdemeanor. (Emphasis added)
Sec. 37.10. TAMPERING WITH GOVERNMENTAL RECORD. (a) A person commits an offense if he:
(3) intentionally destroys, conceals, removes, or otherwise impairs the verity, legibility, or availability of a governmental record;
“Art. 20.09. DUTIES OF GRAND JURY. The grand jury shall inquire into all offenses liable to indictment of which any member may have knowledge, or of which they shall be informed by the attorney representing the State, or any other credible person.”
Sec. 37.10. TAMPERING WITH GOVERNMENTAL RECORD. (a) A person commits an offense if he:
(3) intentionally destroys, conceals, removes, or otherwise impairs the verity, legibility, or availability of a governmental record;
Sec. 15.02. CRIMINAL CONSPIRACY.
(a) A person commits criminal conspiracy if, with intent that a felony be committed:
(1) he agrees with one or more persons that they or one or more of them engage in conduct that would constitute the offense; and
(2) he or one or more of them performs an overt act in pursuance of the agreement.
(b) An agreement constituting a conspiracy may be inferred from acts of the parties.
(c) It is no defense to prosecution for criminal conspiracy that:
(1) one or more of the coconspirators is not criminally responsible for the object offense;
(2) one or more of the coconspirators has been acquitted, so long as two or more coconspirators have not been acquitted;
(3) one or more of the coconspirators has not been prosecuted or convicted, has been convicted of a different offense, or is immune from prosecution;
(4) the actor belongs to a class of persons that by definition of the object offense is legally incapable of committing the object offense in an individual capacity; or
(5) the object offense was actually committed.
(d) An offense under this section is one category lower than the most serious felony that is the object of the conspiracy, and if the most serious felony that is the object of the conspiracy is a state jail felony, the offense is a Class A misdemeanor.
Sec. 36.06. OBSTRUCTION OR RETALIATION.
(a) A person commits an offense if he intentionally or knowingly harms or threatens to harm another by an unlawful act:
(1) in retaliation for or on account of the service or status of another as a:
(A) public servant, witness, prospective witness, or informant; or
(B) person who has reported or who the actor knows intends to report the occurrence of a crime; or
(2) to prevent or delay the service of another as a:
(A) public servant, witness, prospective witness, or informant; or
(B) person who has reported or who the actor knows intends to report the occurrence of a crime.
(b) In this section:
(1) "Honorably retired peace officer" means a peace officer who:
(A) did not retire in lieu of any disciplinary action;
(B) was eligible to retire from a law enforcement agency or was ineligible to retire only as a result of an injury received in the course of the officer's employment with the agency; and
(C) is entitled to receive a pension or annuity for service as a law enforcement officer or is not entitled to receive a pension or annuity only because the law enforcement agency that employed the officer does not offer a pension or annuity to its employees.
(2) "Informant" means a person who has communicated information to the government in connection with any governmental function.
(3) "Public servant" includes an honorably retired peace officer.
(c) An offense under this section is a felony of the third degree unless the victim of the offense was harmed or threatened because of the victim's service or status as a juror, in which event the offense is a felony of the second degree. (Emphasis added.)
A warrant must not issue until after the judicial officer has been supplied with sufficient information to support an independent judgment that probable cause exists for the warrant. Thus, the affidavit on which the warrant is based must provide a sufficient basis upon which a neutral and detached magistrate can make a finding of probable cause [ Whiteley v. Warden of Wyoming Penitentiary, 401 U.S. 560, 564-565, 91 S. Ct. 1031, 28 L. Ed. 2d 306 (1971)
An affidavit that merely recites the elements of the crime charged, contains no affirmative allegations that the Defendant spoke with personal knowledge of the matters contained in the affidavit, and fails to indicate any source for the affiant's conclusions is insufficient and cannot support the issuance of a warrant [see Giordenello v. United States, 357 U.S. 480, 484-486, 78 S. Ct. 1245, 2 L. Ed. 2d 1503 (1958) ; Ware v. State, 724 S.W.2d 38, 41 (Tex. Crim. App. 1986) conclusory affidavit insufficient].
Sec. 37.10. TAMPERING WITH GOVERNMENTAL RECORD.
(a) A person commits an offense if he:
(1) knowingly makes a false entry in, or false alteration of, a governmental record;
(2) makes, presents, or uses any record, document, or thing with knowledge of its falsity and with intent that it be taken as a genuine governmental record;
Sec. 38.05. HINDERING APPREHENSION OR PROSECUTION.
(a) A person commits an offense if, with intent to hinder the arrest, prosecution, conviction, or punishment of another for an offense or, with intent to hinder the arrest, detention, adjudication, or disposition of a child for engaging in delinquent conduct that violates a penal law of the state, or with intent to hinder the arrest of another under the authority of a warrant or capias, he:
(1) harbors or conceals the other;
(2) provides or aids in providing the other with any means of avoiding arrest or effecting escape; or
(3) warns the other of impending discovery or apprehension.
(b) It is a defense to prosecution under Subsection (a)(3) that the warning was given in connection with an effort to bring another into compliance with the law.
(c) Except as provided by Subsection (d), an offense under this section is a Class A misdemeanor.
(d) An offense under this section is a felony of the third degree if the person who is harbored, concealed, provided with a means of avoiding arrest or effecting escape, or warned of discovery or apprehension is under arrest for, charged with, or convicted of a felony, including an offense under Section 62.102, Code of Criminal Procedure, or is in custody or detention for, is alleged in a petition to have engaged in, or has been adjudicated as having engaged in delinquent conduct that violates a penal law of the grade of felony, including an offense under Section 62.102, Code of Criminal Procedure, and the person charged under this section knew that the person they harbored, concealed, provided with a means of avoiding arrest or effecting escape, or warned of discovery or apprehension is under arrest for, charged with, or convicted of a felony, or is in custody or detention for, is alleged in a petition to have engaged in, or has been adjudicated as having engaged in delinquent conduct that violates a penal law of the grade of felony.
“Art. 20.09. DUTIES OF GRAND JURY. The grand jury shall inquire into all offenses liable to indictment of which any member may have knowledge, or of which they shall be informed by the attorney representing the State, or any other credible person.”
“Art. 20.09. DUTIES OF GRAND JURY. The grand jury shall inquire into all offenses liable to indictment of which any member may have knowledge, or of which they shall be informed by the attorney representing the State, or any other credible person.”
Art. 20.22. PRESENTMENT ENTERED OF RECORD. The fact of a presentment of indictment by a grand jury shall be entered upon the record of the court, if the defendant is in custody or under bond, noting briefly the style of the criminal action and the file number of the indictment and the defendant's name. If the defendant is not in custody or under bond at the time of the presentment of indictment, the entry in the record of the court relating to said indictment shall be delayed until such time as the capias is served and the defendant is placed in custody or under bond.
Art. 2.03. NEGLECT OF DUTY. (a) It shall be the duty of the attorney representing the State to present by information to the court having jurisdiction, any officer for neglect or failure of any duty enjoined upon such officer, when such neglect or failure can be presented by information, whenever it shall come to the knowledge of said attorney that there has been a neglect or failure of duty upon the part of said officer; and he shall bring to the notice of the grand jury any act of violation of law or neglect or failure of duty upon the part of any officer, when such violation, neglect or failure is not presented by information, and whenever the same may come to his knowledge. (Emphasis added)
Art. 2.03. NEGLECT OF DUTY. (a) It shall be the duty of the attorney representing the State to present by information to the court having jurisdiction, any officer for neglect or failure of any duty enjoined upon such officer, when such neglect or failure can be presented by information, whenever it shall come to the knowledge of said attorney that there has been a neglect or failure of duty upon the part of said officer; and he shall bring to the notice of the grand jury any act of violation of law or neglect or failure of duty upon the part of any officer, when such violation, neglect or failure is not presented by information, and whenever the same may come to his knowledge. (Emphasis added)
Art. 2.07. ATTORNEY PRO TEM.
(a) Whenever an attorney for the state is disqualified to act in any case or proceeding, is absent from the county or district, or is otherwise unable to perform the duties of his office, or in any instance where there is no attorney for the state, the judge of the court in which he represents the state may appoint any competent attorney to perform the duties of the office during the absence or disqualification of the attorney for the state.
Sec. 39.03. OFFICIAL OPPRESSION.
(a) A public servant acting under color of his office or employment commits an offense if he:
(1) intentionally subjects another to mistreatment or to arrest, detention, search, seizure, dispossession, assessment, or lien that he knows is unlawful;
(2) intentionally denies or impedes another in the exercise or enjoyment of any right, privilege, power, or immunity, knowing his conduct is unlawful; or
(3) intentionally subjects another to sexual harassment.
(b) For purposes of this section, a public servant acts under color of his office or employment if he acts or purports to act in an official capacity or takes advantage of such actual or purported capacity.
(c) In this section, "sexual harassment" means unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature, submission to which is made a term or condition of a person's exercise or enjoyment of any right, privilege, power, or immunity, either explicitly or implicitly.
(d) An offense under this section is a Class A misdemeanor. (Emphasis added)
Sec. 38.10. BAIL JUMPING AND FAILURE TO APPEAR. (a) A person lawfully released from custody, with or without bail, on condition that he subsequently appear commits an offense if he intentionally or knowingly fails to appear in accordance with the terms of his release.
Sec. 37.10. TAMPERING WITH GOVERNMENTAL RECORD. (a) A person commits an offense if he:
(3) intentionally destroys, conceals, removes, or otherwise impairs the verity, legibility, or availability of a governmental record; (see Exhibit G and Exhibit Complaint R)
Art. 17.30. SHALL CERTIFY PROCEEDINGS. The magistrate, before whom an examination has taken place upon a criminal accusation, shall certify to all the proceedings had before him, as well as where he discharges, holds to bail or commits, and transmit them, sealed up, to the court before which the Defendant may be tried, writing his name across the seals of the envelope. The voluntary statement of the defendant, the testimony, bail bonds, and every other proceeding in the case, shall be thus delivered to the clerk of the proper court, without delay.
Art. 21.22. INFORMATION BASED UPON COMPLAINT.
No information shall be presented until affidavit has been made by some credible person charging the Defendant with an offense. The affidavit shall be filed with the information. It may be sworn to before the district or county attorney who, for that purpose, shall have power to administer the oath, or it may be made before any officer authorized by law to administer oaths.
Art. 23.04. IN MISDEMEANOR CASE.
In misdemeanor cases, the capias or summons shall issue from a court having jurisdiction of the case on the filing of an information or complaint. The summons shall be issued only upon request of the attorney representing the State and on the determination of probable cause by the judge, and shall follow the same form and procedure as in a felony case.
Art. 21.22. INFORMATION BASED UPON COMPLAINT. No information shall be presented until affidavit has been made by some credible person charging the Defendant with an offense. The affidavit shall be filed with the information. It may be sworn to before the district or county attorney who, for that purpose, shall have power to administer the oath, or it may be made before any officer authorized by law to administer oaths.
1. The name of the accused, if known, and if not known, a reasonably definite description;
2. Either a direct showing that the accused has committed some offense against the laws of the state or a showing that the Defendant has good reason to believe, and does believe, that the accused has committed an offense [see, e.g., State v. Martin, 833 S.W.2d 129, 131-133 (Tex. Crim. App. 1992) complaint that reported statement of police officer who ''personally observed such offense'' was valid];
3. The time and place of the commission of the offense, as definitely as can be stated by the affiant; and
4. The signature of the Defendant by the writing of the affiant's name or affixing of his or her mark. (Emphasis added.)
Sec. 37.03. AGGRAVATED PERJURY.
(a) A person commits an offense if he commits perjury as defined in Section 37.02, and the false statement:
(1) is made during or in connection with an official proceeding; and
(2) is material.
(b) An offense under this section is a felony of the third degree.
Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.
Sec. 38.10. BAIL JUMPING AND FAILURE TO APPEAR. (a) A person lawfully released from custody, with or without bail, on condition that he subsequently appear commits an offense if he intentionally or knowingly fails to appear in accordance with the terms of his release.
Sec. 39.03. OFFICIAL OPPRESSION.
(a) A public servant acting under color of his office or employment commits an offense if he:
(1) intentionally subjects another to mistreatment or to arrest, detention, search, seizure, dispossession, assessment, or lien that he knows is unlawful;
(2) intentionally denies or impedes another in the exercise or enjoyment of any right, privilege, power, or immunity, knowing his conduct is unlawful; or
(3) intentionally subjects another to sexual harassment.
(b) For purposes of this section, a public servant acts under color of his office or employment if he acts or purports to act in an official capacity or takes advantage of such actual or purported capacity.
(c) In this section, "sexual harassment" means unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature, submission to which is made a term or condition of a person's exercise or enjoyment of any right, privilege, power, or immunity, either explicitly or implicitly.
(d) An offense under this section is a Class A misdemeanor. (Emphasis added)
Sec. 20.03. KIDNAPPING.
(a) A person commits an offense if he intentionally or knowingly abducts another person.
(b) It is an affirmative defense to prosecution under this section that:
(1) the abduction was not coupled with intent to use or to threaten to use deadly force;
(2) the actor was a relative of the person abducted; and
(3) the actor's sole intent was to assume lawful control of the victim.
(c) An offense under this section is a felony of the third degree.
In as much as the arresting officers acted in good faith reliance on the existence of a warrant, the act must be attributed to Judge Fletcher.
Sec. 7.01. PARTIES TO OFFENSES.
(a) A person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both.
(b) Each party to an offense may be charged with commission of the offense.
(c) All traditional distinctions between accomplices and principals are abolished by this section, and each party to an offense may be charged and convicted without alleging that he acted as a principal or accomplice.
Sec. 7.02. CRIMINAL RESPONSIBILITY FOR CONDUCT OF ANOTHER.
(a) A person is criminally responsible for an offense committed by the conduct of another if:
(1) acting with the kind of culpability required for the offense, he causes or aids an innocent or non-responsible person to engage in conduct prohibited by the definition of the offense;
(2) acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense; or
(3) having a legal duty to prevent commission of the offense and acting with intent to promote or assist its commission, he fails to make a reasonable effort to prevent commission of the offense.
(b) If, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, all conspirators are guilty of the felony actually committed, though having no intent to commit it, if the offense was committed in furtherance of the unlawful purpose and was one that should have been anticipated as a result of the carrying out of the conspiracy.
Sec. 7.03. DEFENSES EXCLUDED.
In a prosecution in which an actor's criminal responsibility is based on the conduct of another, the actor may be convicted on proof of commission of the offense and that he was a party to its commission, and it is no defense:
(1) that the actor belongs to a class of persons that by definition of the offense is legally incapable of committing the offense in an individual capacity; or
(2) that the person for whose conduct the actor is criminally responsible has been acquitted, has not been prosecuted or convicted, has been convicted of a different offense or of a different type or class of offense, or is immune from prosecution.
No judge shall sit in any case wherein he may be interested, or where either of the parties may be connected with him, either by affinity or consanguinity, within such a degree as may be prescribed by law, or when he shall have been counsel in the case. (emphasis added)
Disqualification. Judges shall disqualify themselves in all proceedings in which:
(b) they know that, individually or as a fiduciary, they have an interest in the subject matter in controversy; (emphasis added)
Texas Rules of Civil Procedure, Rule 18a(g)(3)(B)
Motion to Disqualify. A motion to disqualify may not be denied on the ground that it was not filed or served in compliance with this rule.
Under Tex. Code Crim. Proc. Ann. art. 30.01, a judge was disqualified from presiding over prosecution for a terroristic threat because the judge was the target of the threat; reversible error occurred because she performed the discretionary act of excusing jurors before recusing herself, as required by Tex. R. Civ. P. 18b(2)(a). Burkett v. State, 196 S.W.3d 892, 2006 Tex. App. LEXIS 5786 (Tex. App. Texarkana 2006).
Rule 18a Recusal and Disqualification of Judges
(f) Duties of the Respondent Judge; Failure to Comply.
(1) Responding to the Motion. --Regardless of whether the motion complies with this rule, the respondent judge, within three business days after the motion is filed, must either:
(A) sign and file with the clerk an order of recusal or disqualification; or
(B) sign and file with the clerk an order referring the motion to the regional presiding judge.
(2) Restrictions on Further Action.
(A) Motion Filed Before Evidence Offered at Trial. --If a motion is filed before evidence has been offered at trial, the respondent judge must take no further action in the case until the motion has been decided, except for good cause stated in writing or on the record.
(B) Motion Filed After Evidence Offered at Trial. --If a motion is filed after evidence has been offered at trial, the respondent judge may proceed, subject to stay by the regional presiding judge. (Emphasis added.)
Upon receiving Defendants' motion to recuse, the trial judge had a mandatory duty under Tex. R. Civ. P. 18a to recuse himself or refer the motion to the presiding judge. The judge abused his discretion by determining that the motion was untimely and failing to refer it; therefore, Defendants were entitled to conditional mandamus relief directing the trial judge to comply with Rule 18a. In re House of Yahweh, 2009 Tex. App. LEXIS 1576 (Tex. App. Eastland Mar. 5 2009).
Texas Rules of Civil Procedure 18a(f) (2) Restrictions on Further Action.
(A) Motion Filed Before Evidence Offered at Trial. If a motion is filed before evidence has been offered at trial, the respondent judge must take no further action in the case until the motion has been decided, except for good cause stated in writing or on the record.
Where the Defendant filed a recusal motion on September 9, 2005, in a guardianship proceeding, the orders signed by the judge after the filing of the recusal motion violated the Tex. R. Civ. P. 18a(d) prohibition against further trial court action; these orders were void and of no effect. In re Whatley, 2006 Tex. App. LEXIS 8911 (Tex. App. Houston 14th Dist. Oct. 13 2006), abrogated by De Gonzalez v. Guilbot, 315 S.W.3d 533, 2010 Tex. LEXIS 421 (2010).
Where a trial court judge denied a motion to recuse him and then ruled on a pending motion to recuse another judge, both orders were void; under Tex. R. Civ. P. 18a, a judge who is the subject of a motion to recuse cannot deny the motion or rule on whether it meets the requirements of Tex. Gov't Code Ann. § 25.00255 but has a mandatory duty either to grant the motion or to refer the motion to the presiding judge. In re Norman, 191 S.W.3d 858, 2006 Tex. App. LEXIS 3292 (Tex. App. Houston 14th Dist. 2006).
Although the trial court properly forwarded the motion for recusal to the presiding judge of the administrative district, he subsequently dismissed the father's lawsuit for want of prosecution before the motion to recuse was resolved, and no good cause was stated in the dismissal order; further, since the dismissal violated the Tex. R. Civ. P. 18a(d) prohibition against further trial court action, the dismissal order was void and of no effect. In re M.E.H., 2004 Tex. App. LEXIS 5824 (Tex. App. Fort Worth July 1 2004).
Presiding judge was unaware that an administrative judge's order denying a litigant's recusal motion was void when the presiding judge signed two orders; because the administrative judge's orders were void given that he proceeded despite a timely objection under Tex. Gov't Code Ann. § 74.053, the presiding judge signed his orders while the recusal motion was pending, and because he did not state in these orders that there was good cause to act while a recusal motion was pending, for purposes of Tex. R. Civ. P. 18a(d), the presiding judge's orders were also void. Anderson v. City of Port Arthur, 2010 Tex. App. LEXIS 7706 (Tex. App. Houston 14th Dist. Sept. 21 2010).
No judge shall sit in any case wherein he may be interested, or where either of the parties may be connected with him, either by affinity or consanguinity, within such a degree as may be prescribed by law, or when he shall have been counsel in the case. (emphasis added)
Sec. 37.06. INCONSISTENT STATEMENTS.
An information or indictment for perjury under Section 37.02 or aggravated perjury under Section 37.03 that alleges that the declarant has made statements under oath, both of which cannot be true, need not allege which statement is false. At the trial the prosecution need not prove which statement is false.
Sec. 37.03. AGGRAVATED PERJURY.
(a) A person commits an offense if he commits perjury as defined in Section 37.02, and the false statement:
(1) is made during or in connection with an official proceeding; and
(2) is material.
(b) An offense under this section is a felony of the third degree.
Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.
Sec. 37.04. MATERIALITY.
(a) A statement is material, regardless of the admissibility of the statement under the rules of evidence, if it could have affected the course or outcome of the official proceeding.
(b) It is no defense to prosecution under Section 37.03 (Aggravated Perjury) that the declarant mistakenly believed the statement to be immaterial.
(c) Whether a statement is material in a given factual situation is a question of law.
Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.
Sec. 7.02. CRIMINAL RESPONSIBILITY FOR CONDUCT OF ANOTHER.
(a) A person is criminally responsible for an offense committed by the conduct of another if:
(1) acting with the kind of culpability required for the offense, he causes or aids an innocent or nonresponsible person to engage in conduct prohibited by the definition of the offense;
(2) acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense; or
(3) having a legal duty to prevent commission of the offense and acting with intent to promote or assist its commission, he fails to make a reasonable effort to prevent commission of the offense.
(b) If, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, all conspirators are guilty of the felony actually committed, though having no intent to commit it, if the offense was committed in furtherance of the unlawful purpose and was one that should have been anticipated as a result of the carrying out of the conspiracy.
Sec. 7.03. DEFENSES EXCLUDED.
In a prosecution in which an actor's criminal responsibility is based on the conduct of another, the actor may be convicted on proof of commission of the offense and that he was a party to its commission, and it is no defense:
(1) that the actor belongs to a class of persons that by definition of the offense is legally incapable of committing the offense in an individual capacity; or
(2) that the person for whose conduct the actor is criminally responsible has been acquitted, has not been prosecuted or convicted, has been convicted of a different offense or of a different type or class of offense, or is immune from prosecution.
"Rooted in long centuries of Anglo-American history," Hannah v. Larche, 363 U.S. 420, 490, 4 L. Ed. 2d 1307, 80 S. Ct. 1502 (1960) (Frankfurter, J., concurring in result), the grand jury is mentioned in the Bill of Rights, but not in the body of the Constitution. It has not been textually assigned, therefore, to any of the branches described in the first three Articles. It "'is a constitutional fixture in its own right.'" United States v. Chanen, 549 F.2d 1306, 1312 (CA9) (quoting Nixon v. Sirica, 159 U.S. App. D.C. 58, 70, n. 54, 487 F.2d 700, 712, n. 54 (1973)), cert. denied, 434 U.S. 825 (1977). In fact the whole theory of its function is that it belongs to no branch of the institutional Government, serving as a kind of buffer or referee between the Government and the people. See Stirone v. United States, 361 U.S. 212, 218, 4 L. Ed. 2d 252, 80 S. Ct. 270 (1960); Hale v. Henkel, 201 U.S. 43, 61, 50 L. Ed. 652, 26 S. Ct. 370 (1906); G. Edwards, The Grand Jury 28-32 (1906). Although the grand jury normally operates, of course, in the courthouse and under judicial auspices, its institutional relationship with the Judicial Branch has traditionally been, so to speak, at arm's length. Judges' direct involvement in the functioning of the grand jury has generally been confined to the constitutive one of calling the grand jurors together and administering their oaths of office. See United States v. Calandra, 414 U.S. 338, 343, 38 L. Ed. 2d 561, 94 S. Ct. 613 (1974); Fed. Rule Crim. Proc. 6(a).
The grand jury's functional independence from the Judicial Branch is evident both in the scope of its power to investigate criminal wrongdoing and in the manner in which that power is exercised. "Unlike [a] court, whose jurisdiction is predicated upon a specific case or controversy, the grand jury 'can investigate merely on suspicion that the law is being violated, or even because it wants assurance that it is not.'" United States v. R. Enterprises, Inc., 498 U.S. 292, 297, 112 L. Ed. 2d 795, 111 S. Ct. 722 (1991) (quoting United States v. Morton Salt Co., 338 U.S. 632, 642-643, 94 L. Ed. 401, 70 S. Ct. 357 (1950)). It need not identify the offender it suspects, or even "the [***366] precise nature of the offense" it is investigating. Blair v. United States, 250 U.S. 273, 282, 63 L. Ed. 979, 39 S. Ct. 468 (1919). The grand jury requires no authorization from its constituting court to initiate an investigation, see Hale, supra, at 59-60, 65, nor does the prosecutor require leave of court to seek a grand jury indictment. And in its day-to-day functioning, the grand jury generally operates without the interference of a presiding judge. See Calandra, supra, at 343. It swears in its own witnesses, Fed. Rule Crim. Proc. 6(c), and deliberates in total secrecy, see United States v. Sells Engineering, Inc., 463 U.S. 418, 424-425, 77 L. Ed. 2d 743, 103 S. Ct. 3133 (1983). United States v. Williams, 505 U.S. 36, 47 (1992)
Art. 17.02. DEFINITION OF "BAIL BOND". A "bail bond" is a written undertaking entered into by the Defendant and his sureties for the appearance of the principal therein before some court or magistrate to answer a criminal accusation; provided, however, that the Defendant upon execution of such bail bond may deposit with the custodian of funds of the court in which the prosecution is pending current money of the United States in the amount of the bond in lieu of having sureties signing the same. Any cash funds deposited under this Article shall be receipted for by the officer receiving the same and shall be refunded to the Defendant if and when the Defendant complies with the conditions of his bond, and upon order of the court.
THE TEXAS CONSTITUTION ARTICLE 1. BILL OF RIGHTS
Sec. 11. BAIL. All prisoners shall be bailable by sufficient sureties, unless for capital offenses, when the proof is evident; but this provision shall not be so construed as to prevent bail after indictment found upon examination of the evidence, in such manner as may be prescribed by law.
Sec. 11a. MULTIPLE CONVICTIONS; DENIAL OF BAIL.
(a) Any person
(1) accused of a felony less than capital in this State, who has been theretofore twice convicted of a felony, the second conviction being subsequent to the first, both in point of time of commission of the offense and conviction therefor,
(2) accused of a felony less than capital in this State, committed while on bail for a prior felony for which he has been indicted,
(3) accused of a felony less than capital in this State involving the use of a deadly weapon after being convicted of a prior felony, or
(4) accused of a violent or sexual offense committed while under the supervision of a criminal justice agency of the State or a political subdivision of the State for a prior felony, after a hearing, and upon evidence substantially showing the guilt of the accused of the offense in (1) or (3) above, of the offense committed while on bail in (2) above, or of the offense in (4) above committed while under the supervision of a criminal justice agency of the State or a political subdivision of the State for a prior felony, may be denied bail pending trial, by a district judge in this State, if said order denying bail pending trial is issued within seven calendar days subsequent to the time of incarceration of the accused; provided, however, that if the accused is not accorded a trial upon the accusation under (1) or (3) above, the accusation and indictment used under (2) above, or the accusation or indictment used under (4) above within sixty (60) days from the time of his incarceration upon the accusation, the order denying bail shall be automatically set aside, unless a continuance is obtained upon the motion or request of the accused; provided, further, that the right of appeal to the Court of Criminal Appeals of this State is expressly accorded the accused for a review of any judgment or order made hereunder, and said appeal shall be given preference by the Court of Criminal Appeals.
(b) In this section:
(1) "Violent offense" means:
(A) murder;
(B) aggravated assault, if the accused used or exhibited a deadly weapon during the commission of the assault;
(C) aggravated kidnapping; or
(D) aggravated robbery.
(2) "Sexual offense" means:
(A) aggravated sexual assault;
(B) sexual assault; or
(C) indecency with a child.
(Added Nov. 6, 1956; amended Nov. 8, 1977; Subsec. (a) amended and (b) added Nov. 2, 1993.)
Sec. 11b. VIOLATION OF CONDITION OF RELEASE PENDING TRIAL; DENIAL OF BAIL.
Any person who is accused in this state of a felony or an offense involving family violence, who is released on bail pending trial, and whose bail is subsequently revoked or forfeited for a violation of a condition of release may be denied bail pending trial if a judge or magistrate in this state determines by a preponderance of the evidence at a subsequent hearing that the person violated a condition of release related to the safety of a victim of the alleged offense or to the safety of the community.
(Added Nov. 8, 2005; amended Nov. 6, 2007.)
Sec. 11c. VIOLATION OF AN ORDER FOR EMERGENCY PROTECTION INVOLVING FAMILY VIOLENCE. The legislature by general law may provide that any person who violates an order for emergency protection issued by a judge or magistrate after an arrest for an offense involving family violence or who violates an active protective order rendered by a court in a family violence case, including a temporary ex parte order that has been served on the person, or who engages in conduct that constitutes an offense involving the violation of an order described by this section may be taken into custody and, pending trial or other court proceedings, denied release on bail if following a hearing a judge or magistrate in this state determines by a preponderance of the evidence that the person violated the order or engaged in the conduct constituting the offense.
(Added Nov. 6, 2007.)
Motion. --The regional presiding judge must rule on a referred motion or assign a judge to rule. If a party files a motion to recuse or disqualify the regional presiding judge, the regional presiding judge may still assign a judge to rule on the original, referred motion. Alternatively, the regional presiding judge may sign and file with the clerk an order referring the second motion to the Chief Justice for consideration.