Gerald Stevens v. State
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Opinion
November 30, 2015
No oral argument requested
Nos. 03-15-00675-CV, 03-15-00676-CV (Houston-sized progress!)
In The COURT OF APPEALS THIRD DISTRICT OF TEXAS
GERALD STEVENS, Respondent (JP) - Appellant/Respondent (de novo) - Appellant, v.
STATE OF TEXAS, Plaintiff- Appellee/Plaintiff- Appellee. (Brief Due: Nov. 23,2015)
On Interlocutory Appeal from COUNTY COURT AT LAW NUMBER 5 OF TRAVIS COUNTY
Nos. C-l-CR-15-100025, C-l-CR-15-100026 STEVENS v. STATE (both should be CV)
On consolidated appeal (trial de novo) from consolidated trial in the JP Court in Austin, STATE v. STEVENS
STEVENS'S BRIEF
GERALD STEVENS r^RECEIVEDN 3117 Fontana Drive NOV 3 0 2015 Austin, Texas 78704 THIRD COURT OFAPPEALS V.JEFFR£yp,iffl£y Identity of Parties and Counsel
Appellant Appellee
GERALD STEVENS STATE OF TEXAS 3117 Fontana Drive Austin, Texas 78704 By: COUNTY ATTORNEY jstvs@startmail.com P.O. Box 1748 Austin, TX 78767
Record References
There are five components.
03-15-675-CV is "R.675.page_number(s)."
03-15-675-CV "1st Supplemental" is "R.675.Supp.l.page_number(s)." 03-15-676-CV is "R.676.page_number(s)."
03-15-676-CV "1st Supplement" is "R.676.Supp.l.page_number(s)." The Transcript is Tr.page_number(s).
Where the item is identical in both Records, "(both)," reference is made to
whichever Record has that document. See the Records correlation Index in the
Appendix.
Appellant's Brief (STEVENS) ii No Notice. No commercial nexus. Table of Contents
STEVENS'S BRIEF j
Identity of Parties and Counsel jj
Record References jj
Index of Authorities vii
Statement of the Case xii
Nature of the Case xii
Course of Proceedings xii
JP court xii
County court - on appeal/trial de novo xiii
JP Court Disposition xiii
County Court Disposition xiii
No Oral Argument Requested xiii Issues Presented xiv
Statement of Facts 1
No Evidence 1
STATE'S Facially Insufficient Pleading(s) 2
No Service 2
Summary of the Argument 2
One more time, no evidence 2
One more time, no personal jurisdiction 3
One more time, no competent pleading 3
Appellant's Brief (STEVENS) iii No Notice. No commercial nexus. One more time, no Service 3
One more time, no subject matter jurisdiction 4
One more time, no standing 4
Fortunately, the stay is automatic 4
Argument 4
No Personal Jurisdiction 4
Issue 1: Was it error to deny the Special Appearance? 4
STATE filed no original pleading 4
Nothing signed by an attorney for STATE 4
No Affidavit 5
STATE served no original pleading 5
Not liable in capacity charged - no commercial nexus 7
"Complaint" asserts only legal conclusions 8
What does "Transportation" mean? The elements 8
Removing people and/or property 9
From one place to another 9
** For hire. ** 9
Under the choice of law of the "place" called "this state." 10
No evidence - which would look/sound like this 10
What does "Vehicle" mean? The elements 10
What does "Motor Vehicle" mean? The elements 11
Appellant's Brief (STEVENS) iv No Notice. No commercial nexus. What does "Drive" (in its various grammatical forms) mean? The elements 12
What does "Operate" (in its various grammatical forms) mean? The elements 13
If STATE would serve a pleading so that such could be addressed, it'd be plain that STATE has never pled a claim 14
Lack of Notice goes beyondjust lack of personaljurisdiction 14 In short, all that is in the making here is a voidjudgment 14
No Subject Matter Jurisdiction 15
Issue 2: Was it error to deny the Plea to the Jurisdiction? 15
No pleading 15
No standing 16
STATE'S silence from the threshold 16
There's no evidence of "transportation." 16 Going deeper into the definition - "transport." 17 Black's Law Dictionary 17
Webster's Dictionary 1828 17
Hinton 19
Bearden 19
A broad definition, and the reason for such 20
"Transports" in the context of "farm labor contractor." 20
"Transports" and controlled substances - distinguishing "how" and "why." 21
Appellant's Brief (STEVENS) v No Notice. No commercial nexus. "Transports" and taxes 22
"Transports" and Prohibition-era intoxicating liquors 23
"Transports" and concealed weapons 24
In sum, the Transp. Code regulates commerce only 24
The algebraic dependence of these otherterms on "transportation." 25 Subject matter jurisdiction can't be "agreed to." 25
Relieving STATE of Burden; Irrebuttable presumptions 25 Use of irrebuttable presumptions violates Due Process 26 The rulings are void 27
Request for Relief 27
Certificate of Service 29
Certificate of Compliance 29
Appendix Contents i
County Court i
Index (to .pdf file page numbers ofRecord(s)) i
Appellant's Brief (STEVENS) vi No Notice. No commercial nexus. Index of Authorities
Cases
Alalunga Sport Fishers, Inc. v. County ofSan Diego, 247 Cal. App. 2d 663 (Cal. App. 4th Dist. 1967) 22, 23 Anderson v. Liberty Lobby, Inc., All U.S. 242 (1986) 26 Armstrong v. Manzo, 380 U.S. 545 (1965) 6, 15 Austin v. New Hampshire, 420 U.S. 656, 668 (1975) (Blackmun, J., dissent) 14 Bailey v. Alabama, 219 U.S. 219 (1910) 8 Bearden v. United States, 320 F.2d 99 (5th Cir. 1963) 20 Berheide, United States v., 421 F.3d 538 (7th Cir. 2005) 8 BlandIndep. Sch. Dist v. Blue, 34 S.W.3d 547 (Tex. 2000) 27 Boddiev. Connecticut, 401 U.S. 371 (1971) 15 Brown v. OaklawnBank, 718 S.W.2d678 (Tex. 1986) 7 Brown v. State, 122 S.W.3d 794, 799 (Tex. Crim. App. 2003) 26 Burns v. UnitedStates, 501 U.S. 129(1991) 7 City ofKeller v. Wilson, 168 S.W.3d 802 (Tex. 2005) 16 ClevelandBd. ofEduc. v. LaFleur, 414 U.S. 632 (1974) 26 Commercial Equip. Leasing Co., Smith v., 678 S.W.2d 917 (Tex. 1984) 15 Computize, Inc., v. NHS Comm. Group, Inc., 992 S.W.2d 608 (Tex. App— Texarkana 1999, no. pet) 5 Cornell Steamboat Co. v. United States, 321 U.S. 634, 641 (1944) (Frankfurter, J., dissent) 9 Cosio, Chicago, R. I. & G. Ry. Co. v., 182 S.W. 83 (Tex. Civ. App. - Amarillo 1916, no writ) 9 County Court of Ulster County v. Allen, 442 U.S. 140 (1979) 26 Cuellarv. United States, 553 U.S. 550 (2008) 21 DellDev. Corp. v. Best Indus. Unif Supply Co., Inc., 743 S.W.2d 302 (Tex. App.—Houston [14th Dist.] 1987, writ denied) 5 Deposit Guaranty Natl Bank v. Roper, 445 U.S. 326, 344 (1980) (Powell, J., and Stewart, J., dissent) 14 Diebold, United States v., 369 U.S. 654 (1962) 26
Appellant's Brief (STEVENS) vii No Notice. No commercial nexus. Dragich v. County ofLos Angeles, 30 Cal.App.2d 397, 86 P.2d 669 (Cal. App. 1939) 22,23 Dubai Petroleum Co. v. Kazi, 12 S.W.3d71 (Tex. 2000) 25 Elkins v. Moreno, 435 U.S. 647 (1978) 26 Fed. Underwriters Exch. v. Pugh, 141 Tex. 539, 174 S.W.2d 598 (1943) 25 Fuentes v. Shevin, 407 U.S. 67 (1972) 7, 15 Garcetti v. Ceballos, 547 U.S. 410 (2006) 5 Globe Leasing, Inc. v. Engine Supply & Mach. Serv., 437 S.W.2d 43 (Tex. Civ.
Free access — add to your briefcase to read the full text and ask questions with AI
November 30, 2015
No oral argument requested
Nos. 03-15-00675-CV, 03-15-00676-CV (Houston-sized progress!)
In The COURT OF APPEALS THIRD DISTRICT OF TEXAS
GERALD STEVENS, Respondent (JP) - Appellant/Respondent (de novo) - Appellant, v.
STATE OF TEXAS, Plaintiff- Appellee/Plaintiff- Appellee. (Brief Due: Nov. 23,2015)
On Interlocutory Appeal from COUNTY COURT AT LAW NUMBER 5 OF TRAVIS COUNTY
Nos. C-l-CR-15-100025, C-l-CR-15-100026 STEVENS v. STATE (both should be CV)
On consolidated appeal (trial de novo) from consolidated trial in the JP Court in Austin, STATE v. STEVENS
STEVENS'S BRIEF
GERALD STEVENS r^RECEIVEDN 3117 Fontana Drive NOV 3 0 2015 Austin, Texas 78704 THIRD COURT OFAPPEALS V.JEFFR£yp,iffl£y Identity of Parties and Counsel
Appellant Appellee
GERALD STEVENS STATE OF TEXAS 3117 Fontana Drive Austin, Texas 78704 By: COUNTY ATTORNEY jstvs@startmail.com P.O. Box 1748 Austin, TX 78767
Record References
There are five components.
03-15-675-CV is "R.675.page_number(s)."
03-15-675-CV "1st Supplemental" is "R.675.Supp.l.page_number(s)." 03-15-676-CV is "R.676.page_number(s)."
03-15-676-CV "1st Supplement" is "R.676.Supp.l.page_number(s)." The Transcript is Tr.page_number(s).
Where the item is identical in both Records, "(both)," reference is made to
whichever Record has that document. See the Records correlation Index in the
Appendix.
Appellant's Brief (STEVENS) ii No Notice. No commercial nexus. Table of Contents
STEVENS'S BRIEF j
Identity of Parties and Counsel jj
Record References jj
Index of Authorities vii
Statement of the Case xii
Nature of the Case xii
Course of Proceedings xii
JP court xii
County court - on appeal/trial de novo xiii
JP Court Disposition xiii
County Court Disposition xiii
No Oral Argument Requested xiii Issues Presented xiv
Statement of Facts 1
No Evidence 1
STATE'S Facially Insufficient Pleading(s) 2
No Service 2
Summary of the Argument 2
One more time, no evidence 2
One more time, no personal jurisdiction 3
One more time, no competent pleading 3
Appellant's Brief (STEVENS) iii No Notice. No commercial nexus. One more time, no Service 3
One more time, no subject matter jurisdiction 4
One more time, no standing 4
Fortunately, the stay is automatic 4
Argument 4
No Personal Jurisdiction 4
Issue 1: Was it error to deny the Special Appearance? 4
STATE filed no original pleading 4
Nothing signed by an attorney for STATE 4
No Affidavit 5
STATE served no original pleading 5
Not liable in capacity charged - no commercial nexus 7
"Complaint" asserts only legal conclusions 8
What does "Transportation" mean? The elements 8
Removing people and/or property 9
From one place to another 9
** For hire. ** 9
Under the choice of law of the "place" called "this state." 10
No evidence - which would look/sound like this 10
What does "Vehicle" mean? The elements 10
What does "Motor Vehicle" mean? The elements 11
Appellant's Brief (STEVENS) iv No Notice. No commercial nexus. What does "Drive" (in its various grammatical forms) mean? The elements 12
What does "Operate" (in its various grammatical forms) mean? The elements 13
If STATE would serve a pleading so that such could be addressed, it'd be plain that STATE has never pled a claim 14
Lack of Notice goes beyondjust lack of personaljurisdiction 14 In short, all that is in the making here is a voidjudgment 14
No Subject Matter Jurisdiction 15
Issue 2: Was it error to deny the Plea to the Jurisdiction? 15
No pleading 15
No standing 16
STATE'S silence from the threshold 16
There's no evidence of "transportation." 16 Going deeper into the definition - "transport." 17 Black's Law Dictionary 17
Webster's Dictionary 1828 17
Hinton 19
Bearden 19
A broad definition, and the reason for such 20
"Transports" in the context of "farm labor contractor." 20
"Transports" and controlled substances - distinguishing "how" and "why." 21
Appellant's Brief (STEVENS) v No Notice. No commercial nexus. "Transports" and taxes 22
"Transports" and Prohibition-era intoxicating liquors 23
"Transports" and concealed weapons 24
In sum, the Transp. Code regulates commerce only 24
The algebraic dependence of these otherterms on "transportation." 25 Subject matter jurisdiction can't be "agreed to." 25
Relieving STATE of Burden; Irrebuttable presumptions 25 Use of irrebuttable presumptions violates Due Process 26 The rulings are void 27
Request for Relief 27
Certificate of Service 29
Certificate of Compliance 29
Appendix Contents i
County Court i
Index (to .pdf file page numbers ofRecord(s)) i
Appellant's Brief (STEVENS) vi No Notice. No commercial nexus. Index of Authorities
Cases
Alalunga Sport Fishers, Inc. v. County ofSan Diego, 247 Cal. App. 2d 663 (Cal. App. 4th Dist. 1967) 22, 23 Anderson v. Liberty Lobby, Inc., All U.S. 242 (1986) 26 Armstrong v. Manzo, 380 U.S. 545 (1965) 6, 15 Austin v. New Hampshire, 420 U.S. 656, 668 (1975) (Blackmun, J., dissent) 14 Bailey v. Alabama, 219 U.S. 219 (1910) 8 Bearden v. United States, 320 F.2d 99 (5th Cir. 1963) 20 Berheide, United States v., 421 F.3d 538 (7th Cir. 2005) 8 BlandIndep. Sch. Dist v. Blue, 34 S.W.3d 547 (Tex. 2000) 27 Boddiev. Connecticut, 401 U.S. 371 (1971) 15 Brown v. OaklawnBank, 718 S.W.2d678 (Tex. 1986) 7 Brown v. State, 122 S.W.3d 794, 799 (Tex. Crim. App. 2003) 26 Burns v. UnitedStates, 501 U.S. 129(1991) 7 City ofKeller v. Wilson, 168 S.W.3d 802 (Tex. 2005) 16 ClevelandBd. ofEduc. v. LaFleur, 414 U.S. 632 (1974) 26 Commercial Equip. Leasing Co., Smith v., 678 S.W.2d 917 (Tex. 1984) 15 Computize, Inc., v. NHS Comm. Group, Inc., 992 S.W.2d 608 (Tex. App— Texarkana 1999, no. pet) 5 Cornell Steamboat Co. v. United States, 321 U.S. 634, 641 (1944) (Frankfurter, J., dissent) 9 Cosio, Chicago, R. I. & G. Ry. Co. v., 182 S.W. 83 (Tex. Civ. App. - Amarillo 1916, no writ) 9 County Court of Ulster County v. Allen, 442 U.S. 140 (1979) 26 Cuellarv. United States, 553 U.S. 550 (2008) 21 DellDev. Corp. v. Best Indus. Unif Supply Co., Inc., 743 S.W.2d 302 (Tex. App.—Houston [14th Dist.] 1987, writ denied) 5 Deposit Guaranty Natl Bank v. Roper, 445 U.S. 326, 344 (1980) (Powell, J., and Stewart, J., dissent) 14 Diebold, United States v., 369 U.S. 654 (1962) 26
Appellant's Brief (STEVENS) vii No Notice. No commercial nexus. Dragich v. County ofLos Angeles, 30 Cal.App.2d 397, 86 P.2d 669 (Cal. App. 1939) 22,23 Dubai Petroleum Co. v. Kazi, 12 S.W.3d71 (Tex. 2000) 25 Elkins v. Moreno, 435 U.S. 647 (1978) 26 Fed. Underwriters Exch. v. Pugh, 141 Tex. 539, 174 S.W.2d 598 (1943) 25 Fuentes v. Shevin, 407 U.S. 67 (1972) 7, 15 Garcetti v. Ceballos, 547 U.S. 410 (2006) 5 Globe Leasing, Inc. v. Engine Supply & Mach. Serv., 437 S.W.2d 43 (Tex. Civ. App.—Houston [1st Dist.] 1969, no writ) 5 GoDaddy.com, LLC v. Toups, 429 S.W.3d 752 (Tex. App.—Beaumont 2014, pet. denied) 8 Hallv. State, 661 S.W.3d 101 (Tex. Crim. App. 1983) 26 Hamdi v. Rumsfeld, 542 U.S. 507 (2004) 7, 15 Hammellv. State, 198 Ind. 45 (Ind. 1926) 23 Harris v. Hardeman, 55 U.S. (14 How.) 334 (1852) 15 Heckman v. Williamson County, 369 S.W.3d 137 (Tex. 2012) 25 Heiner v. Donnan, 285 U.S. 312 (1932) 26 Hinton, United States v., 222 F.3d 664 (9th Cir. 2000) 19 In re E.R., 335 S.W.3d 816, 826 (Tex. App.—Dallas 2011, pet. granted) (dissent, MURPHY, J.), rev W(dissent fully supported) 385 S.WJd 552 (Tex. 2012) 6 In re Marriage ofPeace, 631 S.W.2d 790 (Tex.App.—Amarillo 1982, no writ).... 6 In re Vlasak, 141 S.W.3d 233 (Tex. App.—San Antonio 2004, no pet.) 6 In re Winship, 397 U.S. 358(1970) 26 Industrial State Bank v. Wylie, 493 S.W.2d 293 (Tex. Civ. App.—Beaumont 1973, no writ) 5 IntlShoe Co. v. Washington, 326 U.S. 310 (1945) (opinion by Black, J.) 7, 15 Iqbal, Ashcroft v., 556 U.S. 662, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) 8 Johnson, Connecticut v., 460 U.S. 73 (1983) 26 Jones v. Flowers, 547 U.S. 220 (2006) 7, 15 Kuntoplast ofAm., Inc. v. Formosa Plastics Corp. USA, 937 S.W.2d 455 (Tex. 1996) 5 Lacross, People v., 91 Cal. App. 4th 182 (Cal. App. 3d Dist. 2001) 21
Appellant's Brief (STEVENS) viii No Notice. No commercial nexus. Learyv. UnitedStates, 395 U.S. 6 (1969) 26 Lloyd v. Alexander, 5 U.S. (1 Cranch) 365 (1803) 6, 15 Lozman v. City ofRiviera Beach, 133 S. Ct. 735 (2013) 8, 9, 10, 22, 25 Mapco, Inc. v. Forrest, 795 S.W.2d 700 (Tex. 1990) (orig. proc.) 27 Marshall v. Buntings' Nurseries, Inc., 459 F. Supp. 92 (D. Md. 1978) 20 Maynardv. Texas, 249 S.W. 473 (Tex. Crim. App. 1923) 9 Michigan v. United States Army Corps ofEng'rs, 911 F. Supp. 2d 739 (N.D. 111. 2012) 20 Miller v. Woods, 872 S.W.2d 343 (Tex. App. - Beaumont 1994, orig. proc.) 27 Milliken v.Meyer, 311 U.S. 457 (1940) 7, 14 Moore v. Elektro-Mobil Technik GmbH, 874 S.W.2d 324 (Tex. App.—El Paso 1994, writ denied) 5 Mullane v. Cent. Hanover Trust Co., 339 U.S. 306 (1950) 6, 15 Mullaney v. Wilbur, All U.S. 684 (1975) 26 Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344 (1999) 6 N Ga. Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601 (1975) 7, 15 Pennock v. State, 725 S.W.2d 414 (Tex. App. - Houston [1st Dist.] 1987, no pet). 26 Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80 (1988) 15 Rockwell Ml Corp. v. United States, 549 U.S. 457 (2007) 14 Rowland v. California Men's Colony, 506 U.S. 194 (1993) 5 Sacramento Navigation Co. v. Salz, 273 U.S. 326 (1927) 17 Salfi, Weinberger v., All U.S. 749 (1975) 26 Sandstrom v. Montana, AA1 U.S. 510 (1979) 26 Scott v. Harris, 550 U.S. 372 (2007) 26 Sniadach v. Family Finance Corp., 395 U.S. 337 (1969) 7, 15 St. Clair Cnty v. Interstate Sand & Car Transfer Co., 192 U.S. 454 (1904) 9 Stanley v. Illinois, 405 U.S. 645 (1972) 26 Sydnor v Totman, 6 Tex. 189 (1851) 5 Tex. Dept. ofParks & Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004) 25 Totv. United States, 319 U.S. 463(1942) 26
Appellant's Brief (STEVENS) ix No Notice. No commercial nexus. Twombly, Bell Atl Corp. v., 550 U.S. 544, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007) 8 Velasco v. Ayala, 'ill S.W.3d 783 (Tex. App.—Houston [1st Dist.] 2009, no pet.). 6 Vlandis v. Kline, All U.S. 441 (1973) 26 Williams v. Vermont, All U.S. 14, 28 (1985) (dissent) 14 Wilson v. Dunn, 800 S.W.2d 833 (Tex. 1990) 6 Zheng v. Vacation Network, Inc., 468 S.W.3d 180 (Tex. App.—Houston [14th Dist] 2015, pet. denied) 8
Statutes
49 U.S.C. § 902(i)(l) 9 Tex. Fin. Code § 392.301(a) 7 Tex. Penal Code §32.43 8 Tex. Penal Code §46.15(b)(3) 24 Tex. Rev. Civ. Stat. Ann. art. 5069-11.02 (1986) 7 Tex. Transp. Code Ann. § 501.002(17) 11 Tex. Transp. Code Ann. § 502.001(25) 11 Tex. Transp. Code Ann. § 502.001(45) 10 Tex. Transp. Code Ann. § 503.001(15) 10 Tex. Transp. Code Ann. § 522.003(11) 12 Tex. Transp. Code Ann. § 522.003(21) 11 Tex. Transp. Code Ann. § 541.001(1) 13 Tex. Transp. Code Ann. § 541.201(11) 11 Tex. Transp. Code Ann. § 541.201(23) 10 Tex. Transp. Code Ann. § 601.002(5) 11 Tex. Transp. Code Ann. § 601.002(8) 13 Tex. Transp. Code Ann. § 621.001(5) 11 Tex. Transp. Code Ann. § 621.001(9) 10 Tex. Transp. Code Ann. § 641.002(2) 13 Tex. Transp. Code Ann. § 642.001(1) 11
Appellant's Brief (STEVENS) No Notice. No commercial nexus. Tex. Transp. Code Ann. § 647.001(4) 11 Tex. Transp. Code Ann. § 647.001(5) 13 Tex. Transp. Code Ann. § 683.001(4) 11 Tex. Transp. Code Ann. § 724.001(11) 13 Tex. Transp. Code Ann. § 728.001(2) 11 Tex. Transp. Code Ann. § 750.003(a) 10
Rules of Civil Procedure
Tex. R. Civ. P. 7 5 Tex. Rs. Civ. P. 99-117a 5
Law Review Articles
Robert W. Calvert, "No Evidence "and "Insufficient Evidence "Points of Error, 38 Tex. L. Rev. 361 (1960) 16
Appellant's Brief (STEVENS) xi No Notice. No commercial nexus. Statement of the Case
Nature of the Case
"Civil" non-case. One more "no evidence" "transportation" matter.
Course of Proceedings
JP court.
No Notice, as usual.
JP proceeded on "complaint only." R.675.27. R.676.38.
In response to court setting, STEVENS filed his Special Appearance and
Plea to the Jurisdiction. R.675.34. Denied. R.676.41.
Objection to visiting judge denied. R.676.17.
STATE'S Motion in Limine, effectively denying STEVENS's access to the
court to put on his defense, granted. R.676.18.
Trial. STATE submitted no evidence of "transportation," as usual.
STEVENS's Motion to Dismiss and Motion for Directed Verdict denied.
STEVENS negated all remote notion of "transportation."
A very bright spot. An historic Instruction: "Transport" means to carry or
convey from one place to another. R.676.15 (emphasis added). Request for
further clarification via definition of "carrying, ier)," denied.
Non-viable "verdict" and "judgment" on both charges. R.675.15. R.676.12.
Appellant's Brief (STEVENS) xii No Notice. No commercial nexus. R.675.14.R.676.11.
Appeal Bonds filed. R.675.12. .13. R.676.21. .20.
County court - on appeal/trial de novo.
No Notice, of course.
CCL Number 5 is apparently proceeding on "complaint only."
In response to court setting, STEVENS filed his Special Appearance and
Plea to the Jurisdiction. R.675.122. Denied. R.675.228. .229.
Interlocutory Appeal initiated. R.675.230.
JP Court Disposition
STEVENS was "convicted" of both "transportation" "charges." Fines and
costs of $277 and $310.10.
That matter is, of course, vacated as a matter of law per the "appeal" for trial
de novo.
County Court Disposition
Special Appearance denied. Plea to the Jurisdiction denied.
Oral argument is not expected to aid in the resolution of these issues.
Appellant's Brief (STEVENS) xiii No Notice. No commercial nexus. Issues Presented
No personal jurisdiction
Issue 1: Was it error to deny the Special Appearance?
No subect matter jurisdiction
Issue 2: Was it error to deny the Plea to the Jurisdiction?
Appellant's Brief (STEVENS) xiv No Notice. No commercial nexus. Statement of Facts
No Evidence
STEVENS very overtly asserts a "no evidence" defense. R.675.34. It
matters, then, that STATE filed no response to the paperwork in the JP court or in
the County Court, and STATEpresentedno evidence at either hearing, the one of
focus here being the one in the County Court. Tr.all.
As confirmed in the whole of The Record (a generic reference throughout to
the combined Records), STATE has no evidence of "transportation." STATE
never even tried to prove up such evidence in the JP proceeding, and STATE still
has no evidence for trial de novo.
STEVENS was at no time relevant to this matter carrying any passengers or
cargo. STEVENS was at no time (1) removing anyone or anything (2) from one
place to another (3) for hire (4) under any choice of law. R.675.34. .122.
The hearing was very short, and it begs the question of burden of proof.
Tr.all. There was no evidence presented, and STATE carries the burden.
STEVENS overtly asserted his "no evidence" defense. R.675.34. .122. In
response, STATE went completely silent, filing no responsive paperwork and
presenting no evidence at the hearing.
Appellant's Brief (STEVENS) No Notice. No commercial nexus. STATE'S Facially Insufficient Pleading(s)
STATE has filed no pleading signed by any attorney, much less one with the
authority to represent STATE. Cf R.675.27: R.676.38.
The "complaint" alleges legal conclusions but no facts. The terms
"transportation," "vehicle," "motor vehicle," "drive," and "operate" are all terms of
legal conclusion. As stated under "No Evidence," STATE alleges no facts of
passengers, cargo, or hire. And, there are no such facts for STATE to allege.
No Service
As usual, STATE has once again served nothing on Respondent. The Record
contains no Citation, no request for Citation, and no Return of Citation.
Summary of the Argument
One more time, no evidence
One more time, STATE not only never had any evidence of "transportation"
but also never had any intent to supply/provide any.
One more time, STATE not only failed to file a written response to
STEVENS's Special Appearance and Plea to the Jurisdiction, which very overtly
asserts his "no evidence" defense, but also failed to present anyjurisdictional
evidence whatsoever at the hearing.
Appellant's Brief (STEVENS) No Notice. No commercial nexus. One more time, the trial court relieved STATE of its evidentiary burden.
STATE has no evidence and no intent even to think about gathering such,
much less proving, that STEVENS (1) removed anyone or anything, (2) from one
place to another, (3) for hire, (4) under any choice of law, including "this state."
There being no evidence of "transportation," there is also no evidence of any
"vehicle," "motor vehicle," "driver," or "operator."
One more time, STATE has no intent to prove "transportation," and one
more time, the trial court is willfully relieving STATE of its burden, thereby
causing vexatious expansion of the litigation.
One more time, no personal jurisdiction
One more time, no competent pleading.
STATE has filed no pleading but only a "complaint," which is neither signed
by an attorney nor sufficient as an Affidavit, being based on "belief and legal
conclusions instead of facts within personal knowledge.
One more time, no Service.
Clearly, STATE still feels it's relieved of its Due Process burden. The very
solid and resounding confirmation of the "civil" nature of this matter (these
matters) may actually operate to snap STATE outof its daydream of being totally irresponsible regarding Due Process.
Appellant's Brief (STEVENS) No Notice. No commercial nexus. One more time, no subject matter jurisdiction
One more time, no standing.
There being no "transportation," STATE had no "actual grievance" or any
"injury in fact;" hence, no standing.
Fortunately, the stay is automatic
To encourage mitigation of damages, the courts need to encourage
Interlocutory Appeal. The automatic stay associated with appeal protects these
rebellious, law-defiant trial judges from themselves (to the extent that's possible).
Judges without jurisdiction have no immunity.
Argument
R.675.228. .229. R.675.122.
STATE filed no original pleading.
Nothing signed by an attorney for STATE.
While sworn documents may certainly suffice as original pleadings, it's also
the case that for STATE to be a Plaintiff, STATE has to have an attorney.
Appellant's Brief (STEVENS) No Notice. No commercial nexus. Rowland, 506 U.S. at 201-03 (all artificial entities must have counsel—federal);
Tex. R. Civ. P. 7 (corporations must have counsel—state); Kuntoplast ofAm., Inc.
(same); Computize, Inc. (same); Moore (same); Dell Dev. Corp. (same); Globe
Leasing, Inc., A31 S.W.2d at 45-46 (same); ABA Model Rules of Prof'l
Conduct R. 3.7 (material witness can't also be attorney of Record); Tex.
Disciplinary Rs. Prof'l Conduct 3.08, 5.05 (same, plus facilitating
unauthorized practice); Garcetti v. Ceballos (ethics still matter; "whistleblower"
lawyer who testifies against client (STATE) is fortunate still to have license, much
less job).
This Record includes absolutely no such document.
No Affidavit.
"Belief does not an Affidavit make. E.g., Industrial State Bank, 493 S.W.2d
at 295; Sydnor. "Belief is the popular standard for "probable cause," R.675.27.
R.676.38. but this is a "civil" matter.
STATE served no original pleading.
There is no original petition; leaving Service impossible, anyway. There is
no Citation; there is no Return of Citation. Tex. Rs. Civ. P. 99-117a.
To date, STATE has served nothing on Respondent. By acknowledging the
content of the Record(s) on appeal, Respondent acknowledges quasi-receipt, but
Appellant's Brief (STEVENS) No Notice. No commercial nexus. not Service, of anything. Wilson, 800 S.W.2d at 837 ("Dunn has admitted receipt,
not service") (emphasis in the original). Cf In re E.R., 335 S.W.3d 816, 826
(dissent, J. MURPHY) (question of legitimacy of service by publication). "As in
Peace, the court noted that actual notice to a defendant of a pending suit, without
Hpropernotice,['] is not sufficient. Id"In re E.R., 335 S.W.3d at 832 (dissent, J.
MURPHY) (citing Velasco, via the "id." andPeace). "As McEwen illustrates, the
trial court can render a final judgment even if it lacks personal jurisdiction—the
judgment is void if challenged, but it is no less final." In re Vlasak, 141 S.W.3d at
237-38.
To satisfy Due Process, STATE must serve at a meaningful time, in a
meaningful manner, on a respondent a copy of what STATE has filed. A pleading
has meaning sometime after it's beenfiled, not before. Murphy Bros., Inc. (timing
and sequence matter regarding filing and serving; thus, a "ticket" isn't a pleading).
And, a pleading has meaning sometime after it's been served, not before. Lloyd, 5 U.S. at 366 ("A citation not served is as no citation.").
An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under the circumstances, to apprise interested parties of the pendency of the action and afford them the opportunity to present theirobjections.
Mullane, 339 U.S. at 314. A failure ofNotice violates "the most rudimentary
demands ofdue process of law." Armstrong, 380 U.S. at550 (Notice, meaningful
Appellant's Brief (STEVENS) No Notice. No commercial nexus. time, meaningful manner. 380 U.S. at 552). See also Milliken (Notice, opportunity
to be heard, fair play, substantial justice); Int 7 Shoe (Notice, opportunity to be
heard); Sniadach (Notice, opportunity to be heard); Fuentes v. Shevin (Notice,
meaningful time); N Ga. Finishing (Notice, opportunity to be heard, even for
corporations (i.e., the shareholders)); Burns (Notice, opportunity to be heard, on
upward departure); Hamdi (denial of access and of opportunity to be heard); Jones
(Notice, opportunity to be heard).
Not liable in capacity charged - no commercial nexus.
STATE does not allege, and cannot truthfully allege, that Respondent was
acting as a fiduciary with respect to the "transportation" system at anytime.
There's one and only one way that the Transportation Code works:
"federally," as in "by agreement." How do we know? Because it's codified outside
the Penal Code.
Given that STATE purports to be able to pursue "criminal" charges arising
from the Transp. Code, it follows that the agreement must sound in trust.
Agreements come in only two generic forms: contracts and trusts. And, breach of
contract just simply isn't punishable "criminally." Tex. Fin. Code § 392.301(a)
(prohibited debt collection practices); Brown, 718 S.W.2d at 680-81 (applying
Tex. Rev. Crv. Stat. Ann. art. 5069-11.02 (1986)) (charging debtor with theft of
Appellant's Brief (STEVENS) No Notice. No commercial nexus. the collateral (the car) is a prohibited debt collection practice); Tex. Penal Code
(no crime based on mere breach of contract); cf Bailey (breach of contract can't
be, and wasn't, criminalized); accordBerheide, All F.3d at 540 ("[B]reach of
contract is not a crime."). That leaves breach of trust. See Tex. Penal Code
§ 32.43 (commercial bribery) (i.e., criminal breach of trust).
STATE alleges no trust relationship. Since that's the only capacity in which
anyone may everbe subject to any Transp. Code based claim, Respondent is not
liable in the capacity sued, as confessed bynot only the absence of any competent
pleading but also the absence of such content in the "complaint." R.675.27.
"Complaint" asserts only legal conclusions.
As with "belief," addressed, supra, legal conclusions aren't facts, either. Cf
Zheng, 468 S.W.3d at 186 (construing Tex. R. Civ. P. 91a, likening it to Fed. R.
Civ. P. 12(b)(6), and citing GoDaddy.com, LLC, 429 S.W.3d at 754, which cites
Iqbal, 556 U.S. at 678-79 and Twombly, 550 U.S. at 555-56).
What are the legal conclusions? The following terms are legal conclusions.
What does "Transportation" mean? The elements.
VtrLozman, (1) carrying (2) passengers or cargo.
Per Black's, et al., (1) removing people and/or property (2) from one place
to another (3) for hire (4) in "this state."
Appellant's Brief (STEVENS) No Notice. No commercial nexus. Removing people and/or property.
Transp. Act of 1940, 54 Stat. 898, 929, 49 U.S.C. § 902(i)(l), in particular
§ 302(i)(l). Cornell Steam-boat, 321 U.S. at 641-42 (Frankfurter, J., dissent). Cf
Lozman (passengers or cargo).
From one place to another.
Cf Maynard (context: unlawful "transportation" of intoxicating liquor). Cf.
Lozman.
transportation, n. (16c) 1. The movement of goods or persons from one place to another by a carrier
Black's Law Dictionary 1638 (9th ed. 2009) (all emphasis in original).
** For hire. **
See Lozman, Part IV ("carrying passengers or cargo").
St. Clair Cnty, 192 U.S. at 456-57 (allegations regarding operating a ferry
without a license). See also Cosio, 182 S.W. at 85.
Again, there's Black's Law Dictionary.
transportation, n. (16c) 1. The movement of goods or persons from one place to another by a carrier
Black's Law Dictionary 1638 (all emphasis in original).
carrier. 1. an individual or organization (such as a ship-owner, a railroad, or an airline) that contracts to transport passengers or goodsfor afee. Cf. Shipper. [Cases: Carrier ^ 3, 235.] ....
Appellant's Brief (STEVENS) No Notice. No commercial nexus. Id. at 242 (emphasis added).
Under the choice of law of the "place" called "this state."
Where "hire" is be paid with "funny money" (US "dollars," federal reserve
notes), this element is satisfied. There is no evidence of "hire" using any medium
of exchange, much less any exchange of "funny money," in any amount.
No EVIDENCE - WHICH would look/sound like this.
There was no carrying of any passenger or cargo. There was no passenger,
no cargo, and no hire. There was no passenger manifest, no bill of lading, and no
hire. None was even inquired into at the time of the stop. There was no
"transportation," thus all terms dependent on "transportation" also fail.
What does "Vehicle" mean? The elements.
Transp. §§ 502.001(45), 503.001(15), 541.201(23), 621.001(9), 750.003(a).
(1) Conveyance (2) used for (not coulda, shoulda, woulda used for, but
actually used for) (3) transporting or drawing (4) along a highway.
(1) Conveyance (2) used for (not coulda, shoulda, woulda used for, but
actually used for) (3)(A) removing people and/or property (B) from one place to another (C) for hire (D) in "this state") (4) along a highway.
Lozman struck the "coulda, shoulda, woulda" concept from "transportation"
Appellant's Brief (STEVENS) 1o No Notice. No commercial nexus. (or "vessel"). His floating house "coulda, shoulda, woulda" been a "vessel," i.e.,
engaged in "transportation," but he never actually used it that way.
Since "vehicle" depends on "transportation," there is no "vehicle," because
there is no "transportation."
What does "Motor Vehicle" mean? The elements.
Transp. §§ 501.002(17), 502.001(25), 522.003(21), 541.201(11),
601.002(5), 621.001(5), 642.001(1), 647.001(4), 683.001(4), 728.001(2).
(1) "Vehicle" (2) that has a motor.
(1)(A) Conveyance (B) used for (not coulda, shoulda, woulda used for, but
actually used for) (C) transporting or drawing (D) along a highway, (2) with a
motor.
(1)(A) Conveyance (B) used for (not coulda, shoulda, woulda used for, but
actually used for) (C)(1) removing people and/or property (2) from one place to
another (3) for hire (4) in "this state" (D) along a highway, (2) with a motor.
Since "motorvehicle" depends on "vehicle," which depends on
"transportation," there is no "motor vehicle," because there is no "transportation."
Appellant's Brief (STEVENS) 11 No Notice. No commercial nexus. What does "Drive" (in its various grammatical forms) mean? The elements.
Transp. Code § 522.003(11).
(I.) Being behind the wheel (II.) of a "motor vehicle."
The sole definition for "drive" in the entire"transportation" code is found in
the "commercialdriver's license" chapter, Ch. 522.
(I.) Being behind the wheel (II.) of a (1) "vehicle" (2) that has a motor.
(I.) Being behind the wheel (II.) of a (1)(A) conveyance (B) used for (not
coulda, shoulda, woulda used for, but actually used for) (C) transporting or
drawing (D) along a highway, (2) that has a motor.
(I.) Being behind the wheel (II.) of a (1)(A) conveyance (B) used for (not
coulda, shoulda, woulda used for, butactually used for) (C)(1) removing people
and/or property (2) from one place to another (3) for hire (4) in "this state" (D)
along a highway, (2) that has a motor.
Since "drive" depends on "motor vehicle," which depends on "vehicle,"
which depends on "transportation," there is no "drivfing]," because there is no
"transportation."
Moreover, where there's no "driv[ing]," then no "driver's] license" needed.
Appellant's Brief (STEVENS) 12 No Notice. No commercial nexus. What does "Operate" (in its various grammatical forms) mean? The elements.
Transp. § 541.001(1) (operator- a very confused definition; "drives,"
having meaning only with respect to a "motor vehicle," isjuxtaposed with
"physical control of a vehicle"), § 601.002(8) (operator), § 641.002(2) (operator),
§ 647.001(5) (operator), § 724.001(11) (operate).
(I.) Being behind the wheel (II.) of a (A) "vehicle" or (B) "motor vehicle."
(I.) Being behind the wheel (II.) of a (A)(1) conveyance (2) used for (not
coulda, shoulda, woulda used for, but actually used for) (3)(A) removing people
and/or property (B) from one place to another (C) for hire (D) in "this state") (4)
along a highway, or (B) "motor vehicle."
(I.) Being behind the wheel (II.) of a (A)(1) conveyance (2) used for (not
coulda, shoulda, woulda used for, but actually used for) (3)(a) removing people
and/or property (b) from one place to another (c) for hire (d) in "this state") (4)
along a highway, or (B)(1)(a) conveyance (b) used for (not coulda, shoulda,
woulda used for, but actually used for) (c)(1) removing people and/or property (2) from one place to another (3) for hire (4) in "this state" (d) along a highway, (2) with a motor.
Since "operate" depends on both "vehicle" and "motor vehicle," there is no
"operating," because there is no "transportation."
Appellant's Brief (STEVENS) 13 No Notice. No commercial nexus. If STATE would serve a pleading so that such could be addressed, it'd be plain that STATE has never pled a claim.
Given the habitual lack of service, it's difficult to address the content, but, to
address the non-served document in this Record (these Records), it's very plain
that all STATE has ever alleged in it's "complaints" has been legal conclusions
rather than facts. STATE has no such facts to plead, here, and proved by STATE'S
silence in the hearing. Tr.all.
Lack of Notice goes bevond just lack of personal jurisdiction.
Where there's no pleading filed or served, all that exists is a non-case. Cf.
Austin (Blackmun, J., dissent); Deposit Guaranty Nat'I Bank, 445 U.S. at 353
(Powell, J., and Stewart, J., dissent); Williams, All U.S. at 36 (dissent) (citing
Austin). Some matters, just like the ones at bar, never stop being non-cases. Cf.
Rockwell Int'I Corp. (the final pre-trial order confirmed that this was a non-case).
In short, all that is in the making here is a void judgment.
No valid adjudication may be made withoutpersonaljurisdiction. See
Milliken (the Wyoming judgment was valid because service was valid; hence, the
Wyoming court did have personaljurisdiction).
[I]t has been settled, that a judgment depending upon proceedings in personam can have no force as to one on whom there has been no service of process, actual or constructive; who has had no day in court, and no notice of any proceeding against him. That with respect to such a person, such a
Appellant's Brief (STEVENS) 14 No Notice. No commercial nexus. judgment is absolutely void ....
Harris, 55 U.S. at 339 (cited in Commercial Equip., 678 S.W.2d at 918, which
holds that even a default judgment is void where there is no service). Seealso
Peralta (even "meritorious defense" issue is irrelevant to question of Notice);
Lloyd ("A citation not served is as no citation."); Hamdi (habeas proceeding, which
is, of course, a CIVIL proceeding); Int'I Shoe; Mullane; Armstrong, 380 U.S. at
552; Sniadach; Boddie; Fuentes v. Shevin; N. Ga. Finishing; and Jones.
STATE has yet to serve anything.
No Notice, including no Service?—no personal jurisdiction.
No Subject Matter Jurisdiction
No pleading.
See Issue 1. There simply is no document activating any court's (civil)
jurisdiction. STATE has not shown up by counsel from DayOne. R.675.27.
R.676.38.
Appellant's Brief (STEVENS) 15 No Notice. No commercial nexus. No standing.
STATE never had any "actual grievance," for STEVENS was never engaged
in "transportation." The Record.
STATE'S silence from the threshold.
STATE went completely silent to STEVENS's Spec. Appearance - nothing
filed; nothing argued; no evidence. Since STATE has a duty to prove standing,
and since STATE failed to respond to STEVENS's threshold jurisdictional
challenge, STATE confessed having no standing from Day One.
There's no evidence of "transportation."
See Issue 1.
"No evidence" points must, and may only, be sustained when the record discloses one of the following situations: (a) a complete absence of evidence of a vital fact; (b) the court is barredby rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (c) the evidence offered to prove a vital fact is no more than a mere scintilla; (d) the evidence establishes conclusively the opposite of the vital fact.
City ofKeller, 168 S.W.3d at 810 (quoting Calvert, 'Wo Evidence" and
"Insufficient Evidence" Points ofError, 38 Tex. L. Rev. at 362-63).
The relevant concepts are (a) and (d).
Appellant's Brief (STEVENS) 16 No Notice. No commercial nexus. Going deeper into the definition - "transport."
"Vehicle" uses the term "transport." Is "transport" different from
"transportation" materially or just grammatically? What do "transport" and "draw"
mean? "Draw" can't have a wider scope than "transport," for all the reasons that
"transport" is limited to the commercial context.
Black's Law Dictionary.
Regarding "transport," Black's 9th ed. removes the original judicial cites.l
Black's 5th ed. cites Sacramento Navigation Co. v. Salz. "To transport means to
convey or carry from one place to another[.]" Salz, 273 U.S. at 329. Note that the
"transport" activity was for hire.
Webster's Dictionary 1828.
To get still earlier, let's look at Webster's Dictionary of 1828.
TRANSPORT, v. t. [L. transporto ; trans mdporto, to carry.]
1. To carry or convey from one place to another, either by means of beasts or vehicle on land, or by ships in water, or by balloons in air; as, to transport the baggage of an army; to transport goods from one country to another; to transport troops over a river.
2. To carry into banishment, as a criminal. Criminals are transported as a punishment for their crimes, which often amounts to banishment.
1Also, the 9th ed. doesn't define "travel" at all. Appellant's Brief (STEVENS) 17 No Notice. No commercial nexus. 3. To hurry or carry away by violence of passion. They laugh as if transported with some fit Of passion. Milton.
A. To ravish with pleasure ; to bear away the soul in ecstasy ; as, to be transported with joy. Milton.
5. To remove from one place to another, as a ship by means of hawsers and anchors. Mar. Diet.
TRANSPORT,«.
[1.] Transportation ; carriage ; conveyance.
The Romans stipulated with the Carthaginians to furnish them with ships for transport and war. Arbuthnot.
2. A ship or vessel employed for carrying soldiers, warlike stores or provisions from one place to another, or to convey convicts to the place of their destination.
3. Rapture ; ecstasy. The news of victory was received with transports ofjoy.
4. A convict transported or sentenced to exile.
TRANSPORTATION, n.
[1.] The act of carrying or conveying from one place to another, either on beasts or in vehicles, by land or water, or in air. Goods in Asia are transported on camels ; in Europe and America, either on beasts or on carriages or sleds. But transportation by water is the great means of commercial intercourse.
2. Banishment for felony.
3. Transmission ; conveyance. Dryden.
Appellant's Brief (STEVENS) 18 No Notice. No commercial nexus. 4. Transport ; ecstasy. [Little used.] South.
5. Removal from one country to another ; as the transportation of plants.
In short, as of 1828, "transport" and "transportation" differed only
grammatically.
Hinton.
Transport means to "transfer or convey from one person or place to another: to CARRY, MOVE." [Webster's Third] at 2430. By bringing his package to the post office and beginning the mailing process, Hinton definitely caused the package to betransported by the United States postal system. Consequently, Hinton shipped the package as that term is used in § 922(g)(1) & (2).
Hinton, 111 F.3d at 672 (emphasis added). To hammer the obvious, the Post
Office does what it does for hire.
Bearden.
Regarding "transport," we find this rather unique hijacking case.
Although the district court did define 'extortion,' 'stolen,' and 'kidnap,' as to the other elements of counts one and three it merely read to thejury the statutory language of these counts. This was not sufficient. The jury could have found that appellant himselfwas transported, (n.10 omitted) ratherthan doing the transporting himself. The jury should have been instructed that in order for appellant to have 'transported' the plane and passengers he must have been in actual control or command of the aircraft and that the acts of the crew were not of their own volition but done at his direction.
Appellant's Brief (STEVENS) 19 No Notice. No commercial nexus. Bearden, 320 F.2d at 103 (emphasis added). "Transport" is used in the maritime
context, and it's inextricably associated with commercial activity, here
"passengers," in particular, the intent to interfere with normal commercial, "for
hire" activities.
A BROAD DEFINITION. AND THE REASON FOR SUCH.
"The term 'transport' means to move, convey, carry, or ship by any means, or to deliver or receive for the purpose of movement, conveyance, carriage, or shipment." 16 U.S.C. § 3371(k).
Michigan, 911 F. Supp. 2d at 765. This definition intends to control the illegal
taking offish and wildlife; hence, the widest possible net around the concept of
"theft," which activity is always commercial in nature.
"Transports" in the context of "farm labor contractor."
The commercial intent element for Marshall, 459 F. Supp. at 97-98 is
overtly supplied in the definition of "farm labor contractor." As the court
demonstrates soundly, Mireles (1) removed people and property (2) from one place
to another (3) for hire. "Transport" is usedquite interchangeably in various
grammatical forms.
Appellant's Brief (STEVENS) 20 No Notice. No commercial nexus. "Transports" and controlled substances - distinguishing "how" AND "WHY."
In the area of controlled substances, there's a "crime" that goes by the name
"transportation." Cf Lacross.
Key is this statement: "When defendant was booked, the officers found a
[']pay-owe['] sheetamong his belongings." Id. at 184. This is the lynchpin for
that entire matter, because that proves the intent to distribute, i.e., to sell, i.e., to
make a profit. How it's being done (by bicyclist) is quite distinct from why it's
being done (for commercial gain).
See also Cuellar. In Cuellar, a money laundering case, hidden in the VW
"Bug" was some $81,000. The jury convicted Cuellar, which conviction the Court
overturned. "[H]ow one moves the money is distinct from why one moves the
money. Evidence of the former, standing alone, is not sufficient to prove the
latter." Id. at 556. In Lacross, 91 Cal. App. 4th at 185-87, the California court
details the "why." Key is the unwritten presumption of "commercial intent."
This presumption ofcommercial intent is exactly the same concept that
permeates the (Tex.) Transp. Code. Respondent's defense is, "I'm not in
"transportation." That overtly rebuts the unwritten presumption.
It's not how one gets from here to there that is subject to STATE regulation;
it's why. How is "bycar." Why includes commercial motive, i.e., whether it's 'for
Appellant's Brief (STEVENS) 21 No Notice. No commercial nexus. hire" or not. The Transp. Code exists to regulate only the 'for hire" segment of
that activity. STATE presented no evidence of hire {or passenger or cargo).
"Transports" and taxes.
Alalunga Sport Fishers, refers to Dragich. Lozman renders manifest the
semantics in this statement from Dragich: "[A]ll vessels are used for conveyance
of either property or persons or both." Dragich, 30 Cal.App.2d at 399. Here's that
quote in a bit more context.
It is at once apparent that said section was not intended to exempt all vessels of the specified tonnage but only those "engaged in the transportation of freight or passengers". This phrase must be given some meaning. If it be given the broad meaning contended for by respondents, it would only be necessary that the vessel be used for the conveyance of property or persons. But to give this phrase such meaning would be to render it meaningless as all vessels are used for the conveyance of either property or persons or both.
Id. (emphasis added).
Given the truism that "all vessels are used for conveyance of either property
or persons or both," what Lozman makes manifest is the material difference
between the how and the why. Conveying how is "by floating house;" conveying
why distinguishes "persons orproperty" (non-commercial) from "passengers or cargo" (commercial). Part IV of Lozman is all about the why, and, per Lozman,
thatwhy (commercial intent) element, is "built into" the very definition of
Appellant's Brief (STEVENS) 22 No Notice. No commercial nexus. "transportation." Without commercial intent, there simply is no "transportation."
The Dragich intent element is "for hire." The fishing vessel carried property
(the fish), and the fisherman definitely intended to profit from that fishing activity.
However, because that vessel wasn't hired for the specific purpose of carrying that
fish from sea to shore, that fish wasn't "freight" or "cargo;" hence, no tax
exemption, after all. See Dragich, 30 Cal. App. 2d at 399-400.
Alalunga Sport Fishers, 1A1 Cal. App. 2d at 667-68, cites Dragich and
defines "transportation" as commercial activity. The point here is that the
commercial intent element in Alalugna Sport Fishers, citing Dragich, is "for hire,"
and, key, without such commercial intent, there simply is, by definition, no
"Transports" and Prohibition-era intoxicating liquors.
InHammell, there being no evidence of "transporting" ("forhire") via any
automobile (or truck), the majority focused on the only (other) activity involving
(1) removing liquor (2) from one place to another: Hammell's traipse across the
back yard. The majority determined that such activity wasn't actually from one
"place" to another, perthe definitions of"place" and "another." Since (2) failed,
that ended the analysis, mooting the need to analyze (3) for any commercial intent.
Appellant's Brief (STEVENS) 23 No Notice. No commercial nexus. "Transports" and concealed weapons.
TEXAS distinguishes "transportation" and "travel." Tex. Penal Code
§ 46.15(b)(3)).
In sum, the Transp. Code regulates commerce only.
"Transport" and "draw" have to be construed within the confines of that
commercial context. How (e.g., by car) isn'teither the beginning or end of the
analysis, and why (for hire) is both the beginning and the end. STATE doesn't
regulate "travel:" (A) removing people (andtheir property) (B) from one place to
another. STATE regulates "transport," "transporting," "transportation," i.e., (1)
removing people and/or property (2) from one place to another (3) for hire [(4) in
"this state."].
Everything about the Transp. Code is construed properly when understood
within its commercial context. "How" (e.g., by car) isn'teither the beginning or
end of the analysis, while "why" (for hire) is both the beginning andthe end.
STATE doesn't regulate "travel," which is (1) removing people and/or property (2)
from one place to another. STATE regulates "transport," "transporting,"
"transportation," i.e., (1) removing people and/or property (2) from one place to
another (3) for hire (4) in "this state."
Appellant's Brief (STEVENS) 24 No Notice. No commercial nexus. The algebraic dependence of these other terms on "transportation." See Issue 1.
Until there is evidence of "transportation," i.e., the removing of someone
("passenger") and/or something ("cargo") from one place to another for hire, cf
Lozman, there is no "vehicle," no "driver," no "motor vehicle," andno "operator,"
as a matter of law.
In sum, STATE has never had any "actual grievance," Tex. Dept. ofParks &
Wildlife v. Miranda (standing, plaintiff must show "actual grievance"), i.e., never
had any "injury in fact," Heckman, 369 S.W.3d at 154-55 (citing Lujan, 504 U.S.
at 560-61), which means that the county court has no subject matterjurisdiction.
The "ruling" is void.
Subject matter jurisdiction can't be "agreed to."
It's ancient that the parties cannot, by agreement or consent, confer
jurisdiction on any trial court. Tex. Dept. ofParks & Wildlife v. Miranda, 133
S.W.3d at 224-25; Dubai Petroleum Co., 12 S.W.3d at 74-77 (Part II) (citing Fed.
Underwriters Exch., 141 Tex. at 541, 174 S.W.2d at 600).
Relieving STATE of Burden: Irrebuttable presumptions.
By doing anything but dismissing, the JP court and now the County Court
Appellant's Brief (STEVENS) 25 No Notice. No commercial nexus. have relieved STATE of its burden. Cf. Scott (summary judgment, video of car
chase relevant) (citing Diebold, 369 U.S. at 655; Anderson, All U.S. at 255)
(summary judgment presumptions are against movant); Sandstrom (presumption
that shifted burden of persuasion on culpable mental state violated Due Process);
Mullaney (citingIn re Winship) (to relieve plaintiffof burden is to violate Due
Process); Heiner.
Seealso Brown, 111 S.W.3d at 799 (burden-shifting nature of mandatory
presumptions - homicide context); Pennock, 725 S.W.2d at 415-18 (jury
instruction on intent, in full context of case, established impermissible presumption
causing egregious harm); Hall, 661 S.W.3d at 104 (citing several cases, including
County Court of Ulster County, Leary; Tot, Sandstrom; Johnson; and Mullaney -
obscenity context - ultimately finding no improper presumption regarding Hall).
Use of irrebuttable presumptions violates Due Process.
Despite STATE'S total lack of evidence, the county court presumed
commercial intent. Tr.all. In other words, so far, the presumption of commercial
intent has been rendered irrebuttable, which burden-shifting perspective flatly and
flagrantly violates Due Process. See Elkins; Salfi, (in particular part III, which
distinguishes Salfi); ClevelandBd. ofEduc; Vlandis; Stanley.
Appellant's Brief (STEVENS) 26 No Notice. No commercial nexus. The rulings are void.
Lack of subject matter jurisdiction renders a judgment void, rather than merely voidable, so that it may be challenged either directly or collaterally. See andcompare, Browning v. Placke, 698 S.W.2d 362 (Tex. 1985) (on collateral attack judgment was not shown to have been rendered by a court without jurisdiction). Subject matter jurisdiction is essential to the authority of a court to decide a case; it is never presumed and cannot be waived. Tex. Ass n ofBusiness v. Air Control Bd., 852 S.W.2d 440 (Tex. 1993). When a trial court lacks subject matterjurisdiction, it has no discretion and must dismiss the case as a ministerial act. Qwest Microwave, Inc. v. Bedard, 756 S.W.2d 426 (Tex. App. - Dallas 1987, orig. proc).
Miller, 872 S.W.2d at 346.
See also BlandIndep. Sch. Dist, 34 S.W.3d at 553-54; Mapco, Inc., 795
S.W.2dat703.
As STEVENS asserted from the outset, all that has been produced here is a
void judgment.
Request for Relief
STEVENS requests that this Court
Confirm that "transportation" means removing people and/or property from one
place to another for hire, i.e., carrying passengers or cargo (fora fee), in "this state."
Confirm that "vehicle" means a conveyance of some sort actually used for "transportation."
Appellant's Brief (STEVENS) 27 No Notice. No commercial nexus. Confirm that "motor vehicle" means a "vehicle" with a motor.
Confirm that "drive" means being behind the wheel of a "motor vehicle."
Confirm that "operate" means being behind the wheel of a "(motor) vehicle."
Declare that STATE tendered no evidence of "transportation."
Declare that STATE never satisfied threshold Notice requirements.
Declare that STATE never proved standing.
Declare that STEVENS is not liable in the "Capacity" charged.
Confirm that the rulings are void;
Vacate the county court's rulings and dismiss.
Order all Bond amounts returned to STEVENS, with maximum lawful interest
to the day of the payment;
Order STATE to reimburse STEVENS for all relevant costs; and
Award any and all other relief, at law, in equity, or sui generis, to which
STEVENS may show himselfjustly entitled.
Respectfully submitted,
ml Jerry Stevens GERALD STEVENS 3117 Fontana Drive Austin, Texas 78704
Appellant's Brief (STEVENS) 28 No Notice. No commercial nexus. Certificate of Service
By my signature below, I certify that on or about the 23d day of November, 2015,1 served a true and correct copy of this Brief with its Appendix, either in paper or electronic form, on the following by certified mail or by 3-day or faster delivery:
TRAVIS COUNTY ATTORNEY P.O.Box 1748 Austin, TX 78767
DANA DeBEAUVOIR, Clerk COUNTY COURT AT LAW NUMBER 5 P.O.Box 1748 Austin, TX 78767
/sKferry Stevens GERALD STEVENS
Certificate of Compliance
By my signature below, I certify that the font for the body is at least 14- point, Times New Roman, that the footnotes are at least 14-point, Times New Roman, and that headings are 14-point, Times New Roman or Arial, and that the word count of this Brief, per section and total, including headings and footnotes, is as follows:
Statement of Facts 290. Summary 338. Argument, Conclusion 4.777. 5,405.
isrJerrv Stevens GERALD STEVENS
Appellant's Brief (STEVENS) 29 No Notice. No commercial nexus. Appendix Contents
County Court
Rulings (2 pgs) A-l
Transcript (5 pgs) A-3
Index (to .pdf file page numbers of Record(s))
JP Documents (most not filed into JP Record) Page sequence is very unrelated to chronology. R.675 R.676 Cover (-100025) 1 (-100026) 1 County Court's Index (-100025) 2 (-100026)2 Caption (-100025)4 (-100026) 4 [Gonzales page ??? 5] JP Appeal Receipt (-6974) 6 (-6973) 5 JP Case Summary (-6974) 7 (-6973) 6 File jacket notes (-6974) 9 (-6973) 8 Receipt for Appeal Bond (-6974) 12 21 Receipt for Appeal Bond (-6973) 13 20 Non-viable "judgment" (-6974) 14 (-6973)11 Non-viable "verdict" (-6974) 15 (-6973) 12 Jury Charge (both) 13 Objection to Visiting Judgment (denied) (both) 17 Order Granting STATE'S M/Limine (both) 18 Non-viable Discovery Compliance Receipt (both) 19 Standing Evidentiary Objections (both) 22 Special Appearance and Trial-time M/Dismiss (both) 16 Spec. Appear, and Trial-time M/Dir.Verdict (both) 20 Jury Trial Notice (both) 24 Unserved Subpoena for Trooper DOLLAHITE (-6974) 25 (-6973) 36 Undated email to DOLLAHITE (both) 26 37 Dated email to DOLLAHITE (both) 34 "Complaint" (-6974) 27 (-6973) 38 Affid. for Warrant (-6974) 28 (-6973) 39 Reply Form 29
Appellant's Brief (STEVENS) A-i No Notice. No commercial nexus. R.675 R.676 Fine Schedule 30 Pre-trial Notice (-6974) 31 (-6973) 40 Case History Summary 32 Pre-trial Notice (both) 33 47 Special Appearance and Plea to the Jurisdiction (both) 34 Notice of Submission - Spec. Appear, and Plea/Juris (both) 48 Order Denying Spec. Appear, and Plea/Juris (both) 41 Public Information Request 107 50 Envelope 109 52 Public Information Request (again) 110 Envelope (again) 112 Court's Response to PIRs (both) 42 (and again) (both) 44 Appeal Bond (-6974) 113 (-6973) 53
County Court documents R.675 R.676 Receipt (County Court) Appeal Bond (-100025) 114 (-100026) 54 Announcement Notice (both) 115 55 Ticket (both) 56 Waiver of Representation (both) 116 89 Notice of Submission, Spec. Appear, Plea/Juris (both) 120 93 Special Appearance and Plea to the Jurisdiction (both) 122 57 Proposed Order (Spec. Appear, and Plea/Juris) (both) 95 Standing Assertion of Rights (both) 154 97 Standing Objection to Non-judicial Decision-making (both) 156 99 Standing Objection to Use of Private Law (both) 158 101 Statutory Challenges (both) 160 103 Notice of Submission of Statutory Challenges (both) 196 133 Proposed Order (Stat. Challenges) (both) 198 140 Motion for Summary Judgment (both) 200 142 Notice of Submission (M/Sum J) (both) 219 160 Proposed Order (M/Sum J) (both) 221 162 Proposed Order (Spec. Appear and Plea/Juris) 223 Subpoena (DOLLAHITE) (-100025) 225 Subpoena (DOLLAHITE) (-100026) 226 Subpoena (DOLLAHITE) (-100025) 227
Appellant's Brief (STEVENS) A-ii No Notice. No commercial nexus. R.675 R.676 Order Memorializing Denial of Spec. Appear, and Plea/Juris (-100025)228 Order Memorializing Denial of Spec. Appear, and Plea/Juris (-100026) 229 164 Notice of Interlocutory Appeal (both) 230 165 Visually vibrating copy of OrderMemorializing Denial of Spec. Appear, and Plea/Juris (-100025) 233 168 (Another of the same) 234 169 Transcript of Sept. 15 (2015) hearing (Spec. Appear, and Plea/Juris) (both) 235 (vis. vibr.) 170 Notice of Submission - M/Stay (both) 240 175 Proposed Order (M/Stay) (both) 243 178 Notice of Intent to Insist Upon Stay (both) 245 180 M/Stay Accompanying Notice of Appeal (both) 248 183 County's Confirmation of Appeal (goofy case style) (-100025)251 (-100026) 186 File Jacket (-100025) 252 (-100026) 187 County Clerk Certificate (-100025) 253 (-100026) 188
R.675.Supp.l R.676.Supp.l Cover (-100025) 1 (-100026) 1 County Court's Index (-100025)2 (-100026)2 Caption (-100025) 3 (-100026) 3 Note/Description ("SOVEREIGN CITIZEN" - B.S.!) (-100025)4 (-100026)4 Unserved Subpoena, DOLLAHITE (-100026) 5 County Clerk Certificate (-100025)5 (-100026)6 Envelope (CM 8906) 6 (CM 9071) 7
Appellant's Brief (STEVENS) A-iii No Notice. No commercial nexus. Nos. 15-100025, IfJilOlHiiti
§ In The
Plaintiff. OOliNTYOOUHTATLAW
v-
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fhi £8uft fail diftiin; 8fBee&4. ifi epea eeiuri, &§ih fte§pagtem'§ ipe^al £$£H&M aad bii imwmt Pte§ te the toietisB te eas& matter. ft&fe te fflgffl8Hili5g fee mliap maste in @pa m*, « ts ©SBSBSi ftit iteiseatoft SwM Appeaf&fige i§ &m& It is further IDEUEl) that Respondent's Pica to the Jurisdiction is domed.
on this the ,^^> day of ."Filed For Record At/i&o^ck^M. Dana DeBeauvoir County Clerk, Travis County, Texas
\pm Memorializing denial in open court of Respondents Special Appearance and of his Plea to the Jurisdiction
A-1 Nos. 10 100QA5, 15-100026
TATE OFT.
Plaintiff, COUNTYCQURTAT
§ ». 5
GERALD STEVEN! § Respondent. § ff&VJi @@yN1% TJ
fttftiiNSS IN §PIN §§URf SIN¥fN§ RESPONDENT'S SPECIAL APPEARANCE AND PLEA TO THE JUR1SDICTION
ffilte: ¥bl Bill wis se&b to to esM gatefe^ *uiifti§ an Bespatoft §p§eial &j$HSiBet iBn Pill teto *Juft§fei8B-. ¥fe court haj &m§&, efte.B?i', ifl gpe& m^ telfe Itg§p&<£eat'§ Speefel AgplHfigl mi te§ &%Bmp&$&§ Hsa to to sJumfeta Is* §aeh matte, ftefefi; te ffliffl8filli5i to m!lBp ffl&& IB 9pefl g^ft, it is ©SBiftSB feat 8i§eBfifeRt5§ §peial Appeamige is fom& b is fcrtter ORDERED that Respondent's Plc?a to the Jurisdiction is denied.
siifiidmtMito ^ day# 4^4^L IpilftlFor Record jM (IVjEOo'clock % m. -Z^L_day of^?.fT20i^ Dana DeBeauvoir County Clerk, Travis County, Texas
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T&tft ' :" : ' :- '3: g~i=gft=i&=16 • I • • }0$£f -£ or :: * >'•• 'dUNf¥ eouif vs-. % m hm numm nvi * GERALD STEVENS g ff&VtS BOUNTY* fgXAi
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•ASSISTANT COUNTY •'• | • -U-MNA bNtVg SfiOT NO: 24C4S467 AU§¥tN, TiXAg ^§704 ?: • * * * > * * * * 1 1- 4 4- i- * * i ^ t, * * « * 4 4, +. + j, .» Gn feftg isfeh day ®t §§pfci ; • , 201.5, thi fdil'o^ind Pro&eed-• '•- citfife dfl I© be heafd ifl the abdV©- • ;,ered cause be£oi:e the Hoftofcafele Nftilgy ftiitgiitteh; -;: | ;;iihg* hi • ; ::- fcttlfcifc, I': wi* g@Uflty, Texas' £roce§dihg§ ire^birted by Btachitt* *h©ffchAfi^, flRlfilNA? TUESDAY, SEPTEMBER 15, 2 015 THE g@yft¥: Wg'fci hefe 5ft 6aU§e N$8, 15-186625 and l5-l6 -' : $r: &eral'd SteVehs Ls feh< ! ftdattt, smd h@ is here; biro §fe', rePresehtih"] himself: We •'••'•' '•'••• H©f@§, •: is the broSecufcdr for the State; Pfig cases' aire se: U ' lay fdr a Ifidi fthfci at tfij :-.t they W8 - • ' be ; -;i term* ©I thi gases 18 that cbuid gb tb trial: • Stevens* ydU wanted l@ ftafcs g irsqutst t$ : CbUrt: ¥bU foay broceed: &R: STEVfe;::: Yes: : ' fel 3i I Stiffli this i§ the second1 reset: Ahd I • lid* at 'M* |ifl», ffl@¥§ - cbbrt iraht nty special appeal •—•'••• aftd pita fee ; jurisdiction ahd disMss' i:' 'Se: - ifrfiia e&J&T: okay-, i afft d- :© itny your retjuest Becaus :-; y the State cah dismiss fchl &a§e and I d© ••ere I have statutory jiirisdlctioh ^Vfci ihi iftatfcfcJ?, i cah reset your jury case today if you §© \be: Or ybu cah iflraii and cofoe '•-'•'•' and &*£ :t bh#?S'f •:-'--' :: :--ebt or" the o1 : &§@§ that ate setj MR: ?• : • 1 ' ;:efe m •• I hi B8 OtUI ;-; THP '• :'"•'?: VeS: ti yoy Want to fivfi feto 2s br ceil phone* they dah let .••. ':• • •:• ..••-: A-4 - 9521 nty feiiiiii b8 cai I: the ebyti: . j ^aHi feo $& that? Do you : - e us a bhbhe hUftber ahd We* 11 call you and let tydxi fori Ufe: STEVEH^: Willi il tig -? -•5; ' ' '• m, :-2vS to cbrrVe back to reset sir -= !@Uft¥: =i-;: :•••• • VoU, y$tt'd have a trial: But I ddh't thihfc that's >• • happen, 18 HBhiiti^; Because u.hes'e ea§ii -- of th&ffl aft ffOffi U 20l3j and they're be'eh oh fty jury docket a lifci Oflt Of is ;- ;:- ~- t-c bi theft fray be in jaiij one's already in jail. i§ • ;'v ;-ot Bar from It; khd One 3>Jy> § from OU' ••: U states : '• Wisconsin: So I bhihR that yoM Will hot likely Be reach" •- : ;•'?/: • •'••'-•:..•: okay. Willi fehifl !,-: ' 8 rt§$1 • 1? ifchai: aire the oBtiohs? tH§ edtiM : Th>- •• . •> - - have- ::';:--: airi tfi -ber* I •'• • ••;[•;; |fl U the" heat == :•:..•: : ' :, — 20 21 Mfi is that a • - • • 22 (&: ST- : iV% a kad 3ay, t plan to b© out of town through the 5 - 24 : •: • V: fheh the nest would fee einber 3'd: A-5 • HR: STfevEHs; fthat ela. ;he Nft ft § that? T&E c9tmf: It's' a fli'e- : : .•'• ^R: 3TfevfeW§- Tuesday* • fflfeif 3**1 toy.- THE CC'M: All fright; We'll Sit it £©f •ri-.fcer 3 ahd '&%'* H see y6U then: MR: STEVENS: okay; Thank y- •• Mft: ii&Bi : :iave you talked l€ a pir@§§§uE©£ te about any possible resoiUt; ST- : Ye§; ^ie>RES: ••'••:' ; : " ' •' '• : :-::--3 " ofeiya I jbit ttght:@d bb ctiai ;::;i- u£; . g :- . : .:. .:.:: ,. .. 11 13 tffo. c,r •:..:: :. .:.- ... .. 14 (Proceedings" adicUrhed) - 36 31 23 24 2- A-6 f5I2>554-2621 ee&Nft Br trMis ij ?(areh ¥avra* Efieiaj •'••••rt fcgpone* la ahb for the cbUhty trbv:I tf Laa !•• • I; TtiVii COUftty* §£«£§ 8f Texts', do hereby certify that the abOVe ahd • •••••;• Iftfl, contains a true' ahd 'correct traiiscr;i - Of all Oortioh§ of - -i^rice" ind other proceedings revested ih Writing by Iftiil for the parties tb be included in this Volume of the Repbrt/er's R'ecBrd', ih the abdve^styled an•'• I eau§®, ail Of fchieh bbbUrred ih ^&h dbUrt 01 •• ghafflfei N ahd W§£§ ii rip&rted I • • • i further cettiiy ;:-- |hii Bepsnst's ftee©#d Bf the' b1 dings truly ahd correctly reflects' the exhibits; if any;. 1;; ' ; •' ' V- fcfci -:-L-ctiV5 baHi#§> : -rther certify that :- ••.•-• :• th§ BfeBaratioh of this Re: ' | cold is $25:99 a\\4 Wa§ paid ; {f ~he de: '• : \t\k\ Wi*Kfe§§ Wi §FriciftL B&N§ this the Lit!, day of SebteSBir; 2915: 28 2 1 KftRlfi ^AVftAi filial ''': «TtW 42 I :: •:.:.:-: 31/i § ' :lclai ":••:••«'-! Ri£$j 11 i Urt al Law Mo, § Gravis CoUhty* Ti v 24 P: 5: So* i'Ng AUstih* TBtaS IBISI :^!8D4=362i F7 iN VA'VRA', C5& yo*fctx U.S. POSTAGE m p $5.75 S PM 1-DAY 978745 0006 P Datoolsale 8 £11/23/15 * 806 2S00 JO £08259778 w PRIORITY MAIL 1-DAY TM FROM: EXPECTED DELIVERY 11/25/2015 SHIP Gerald Stevens TO: 0006 3117 Fontana Dr. Austin TX 78704 Third Court of Appeals PO Box 12547 Austin, Texas 78711-2547 PO BOX 12547 AUSTIN TX 78711-2547 USPS TRACKING NUMBER 9505 5000 2079 5327 0010 39 © VISIT US AT USPS.COM !5 ORDER FREE SUPPLIES ONLINE
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Gerald Stevens v. State, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gerald-stevens-v-state-texapp-2015.