Robert Earl Marzett v. State

Opinion

No. 05-15-00148-CR _ o ££ eft — '-" S3 -5=

IN THE s: ir5 R l 33 j3 4= COURT OF APPEALS -o

FIFTH DISTRICT OF TEXAS at DALLAS rn

i— CO O^

Robert E. Marzett,

Appellant,

STATE OF TEXAS

Appellee,

Appealed from COLLIN COUNTY COURT AT LAW #1 COLLIN COUNTY, TEXAS

No. 001-83797-2014

Appellant's Brief

Robert E. Marzett 9720 Coit Road #220-116 Piano, Texas 75025 214-868-8698 remarzett@gmail.com

Appellant's Brief No. 05-15-00148-CR No. 05-15-00148-CR

IN THE

COURT OF APPEALS

FIFTH DISTRICT OF TEXAS at DALLAS

Appealed from COLLIN COUNTY COURT AT LAW #1 COLLIN COUNTY, TEXAS No. 001-83797-2014

Robert E. Marzett 9720 Coit Road #220-116 Piano, Texas 75025 214-868-8698 remarzett@gmail.com

Robert E. Marzett, Appellant

STATE OF TEXAS, Appellee

IDENTY OF PARTIES & COUNSEL

1. Defendant/Appellant Robert E. Marzett 9720 Coit Road #220-116 Piano, Texas 214-868-8698 remarzett@gmail.com

Plaintiff/Appellee STATE OF TEXAS COLLIN COUNTY DISTRICT ATTORNEY 2100BloomdaleRd. McKinney, Texas 75071

Appellant's Brief jj No. 05-15-00148-CR TABLE OF CONTENTS

IDENTITY OF PARTIES & COUNSEL ii

TABLE OF CONTENTS in

INDEX OF AUTHORITIES iv

STATEMENT ON ORAL ARGUMENT x

STATEMENT OF THE CASE x

ISSUES PRESENTED xi

STATEMENT OF FACTS !

SUMMARY OF THE ARGUMENT 5

STANDARD OF REVIEW 8

ARGUMENT AND AUTHORITIES 9

CONCLUSION 67

PRAYER 67

CERTIFICATE OF COMPLIANCE 68

CERTIFICATE OF SERVICE 68

Appellant's Brief jjj No. 05-15-00148-CR INDEX OF AUTHORITIES

CONSTITUTIONS

United States of America

U.S. Constitution, Art. 1 51 U.S. Constitution, Art. II 51 U.S. Constitution, Art. Ill 51 U.S. Constitution, Art. I. §8, cl. 17 38,44 U.S. Constitution, Art. I, §10, cl. 1 39 U.S. Constitution, Art. IV, §3, cl. 2 38,44 US. Constitution, Amend. IV 5,6,10,25,26,28,35 US. Constitution, Amend. VI 52,55,57,58

Constitution of Texas

Texas Constitution, Art. I, §9 5,26,33,35 Texas Constitution, Art. I, §10 39,52 Tex. Constitution, Art. II, §1 50 Texas Constitution, Art. Ill § 35 43,59,64 Texas Constitution, Art. V. §12(b) 47,56

CASES

Federal

Atwaterv. City ofLago Vista, 532 U.S. 318 (2001) 12,23 Bryan v. United States, 524 U.S. 184(1998) 16 Davis v United States, 131 S. Ct. 2419 (2011) 19 Appellant's Brief jv No. 05-15-00148-CR Delaware v.Prouse, 440 U.S. 64% (1979) 10,12,22 Florence v. Bd. ofChosen Freeholders, 132 S. Ct. 1510 (2012) 23 Giaccio v. Pennsylvania, 382 U.S. 399 (1966) 17 Heienv. NORTH CAROLINA, 135 S.Ct. 530 (2014) 11,28,29 Hepburn &Dundas v. Ellzy, 6U.S. 445, 452(1805) 36,37 International Shoe Co. v. Washington, 326 U.S. 310 (1985) 49 Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009) 12

Marylandv.King, 133 S.Ct. 1958(2013) 23 Navarettev. California, 134 S. Ct. 1683 (2014) 22 NewYorkv. United States Et. AL., 505 U.S. 144(1992) 39 Northrup v. CITY OF TOLEDO POLICE DEPARTMENT, UNITED STATES COURT OF APPEALS, No. 14-4050 (May 13, 2015) 33,34 Ogdenv.Slade, 1Tex. 13 (184 39 Ornelasv. United States, 517 U.S. 690 (1996) 11 Papachristou v. City ofJacksonville, 405 U.S. 156 (1972) 58 Pennoyer v. Neff 95 U.S. 714, 722-724 (1877) 49 Pennsylvania v. Mimms, 434 U.S. 106(1977) 23 Prince v. United States, 521 U.S. 898, 918-922 (1997) 51 Reynolds v. United States, 98 U.S. 145 (1878) 19 Terryv. Ohio,392U.S. 1(1968) 12,13,23 [7^^^^^.5^,404^8.336(1971) 17 United States v. Bevans,\6\J.S.(3 Wheat.) 338, (1818) 38 United States v. Chanthasouxat, 342 F.3d 1271 (1 lth Cir. 2003) 16,19 United States v. Davis, 598 F.3d 1259

Appellant's Brief No. 05-15-00148-CR (1 lth Cir. 2010), affd, 131 S.Ct. 2419 (2011) 19 UnitedStates v. Johnson, 457 U.S. 537(1982) 19 United States v.Lanier, 520 U.S. 259 (1997) 17,60 United States v. Lopez- Soto, 205 F.3d 1101 (9th Cir. 2000) 19,20 United States v. McDonald, 453 F.3d 958 (7th Cir. 2006) 19 United States v. Miller, 146 F.3d 274 (5th Cir. 1998) 15 United States v. Nicholson, 721 F.3d 1236 (10th Cir. 2013) 10,11 United States V.R.L.C., 503 U.S. 291 (1992) 16 United States v.Robinson, 414 U.S. 218 (1973) 23 United States v. Tibbetts, 396 F.3d 113 (10th Cir. 2005) 16 United States v. Wiltberger, 18 U.S. (5 Wheat.) 76 (1820) 17 Winter v. People ofState ofNew York, 333 U.S. 507, 517-520(1948) 59 Whrenv. United States, 517 U.S. 806 (1996) 11,15,22 Younger v. Harris, 401 U.S. 37, 44-45 (1971) 51

Texas

Amplifone Corp. v. Cameron County (Civ. App. 1979) 577 S.W.2d. 567, 570 38 Barber v. State, 191 S.W.2d. 879 (1945) 48 Castas v. State, Tex.Cr.App., 503 S.W.2d. 262, 239 (1973) 47,56 Drummv. State, 560 S.W.2d 944 (1977) 54 Exparte Cannon, 546 S.W.2d. 266, 269-270 (1976) 46,47,56 ExparteDuncan,42Tex.Cr.R.66\,62SW.75%(\90\) 56 Ex parte Ports, 21 S.W.3d 444, 446 (Tex. App.-San Antonio 2000, pet. refd) 43 E-Z Mart Stores, Inc. v. Terry, 794 S.W.2d. 63

Appellant's Brief vj No. 05-15-00148-CR (Tex.App. - Texarkana 1990, writ denied) 51,57,61,65 Fairow v. State, 943 S.W.2d 895, 900 (1997) 61,65 Galveston, H & H.R. Co. v. Anderson (Civ. App. 1921) 229 S.W. 998 37,38 Georgev. State, 145 S.W.2d 187,188 (1940) 55 Graynedv. City ofRockford, 408 U.S. 104, 108(1972) 43,58 Harvey v. Culpeper, 801 S.W.2d 596, 600-01 (Tex.App.-Corpus Christi 1990, no writ) 61 Heine v. Texas Dep't ofPub. Safety, 92 S.W.3d. 642 (Tex. App. - Austin 2002, pet denied) 8 InreJ.L., 163 S.W.3d79, 85 (Tex. 2005) 63,64 Kingv. State, 29 S.W.3d. 556 (Tex. Crim. App. 2000) 9 Louder v. De Leon, 754 S.W.2d 148, 149 61,65

Lum v. State, 903 S.W.2d. 365 (Tex. App.-Texarkana 1995, pet. Refd) 61,65 Luquis v. State, 72 S.W.3d 355, 365 n.26 (Tex. Crim. App. 2002) 43 Mercedes Bern Credit Corp. v. Rhyne, 925 S.W.2d. 664, 666 (Tex. 1996) 8 Office ofPub. Util. Counsel v. Pub. Util. Comm 'n, 878 S.W.2d. 598, 600 (Tex. 1994) 64 Ogdenv. Slade, 1Tex. 13, 14 (1846) 39 Pledger v. Schoellkopf 762 S.W.2d. 145(1988) 42 Quickv. City ofAustin,! S.W3d. 109 (Tex. 1998) 9 Sixth RMA Partners, L.P. v. Sibley, lllS.W.3d.47,56(Tex.2003) 42

Appellant's Brief vjj No. 05-15-00148-CR State v.Evans, 843 S.W.2d 576 (Tex.Cr.App. 1992) 60 State v. Holcombe, 187 S.W.3d 496, 499 (Tex. Crim. App. 2006), cert, denied, 127 S.Ct. 176(2006) 58 State v. Steelman, 93 S.W.3d. 102 (Tex.Crim.App. 2002) 35 Texas Dep't ofPub. Safety v. Nail, 305 S.W.3d. 673 (Tex. App.-Austin 2010, no pet.) 9 Thomas v. State, 919 S.W.2d. 427 (1996) 56,60 Travis v. State, 959 S.W.2d 32 (Ark. 1998) 722 S.W.2d 694 (Tex. 1986) 25 Waggoner v. Morrow, 932 S.W.2d. 627, 631 (Tex.App - Houston [14th Dist] 1996, no writ) 9 Walkerv. Packer, 827 S.W.2d. 833, (Tex. 1992) 8 Weatherly v.Martin, 754 S.W.2d. 790 (1988) 42

STATUTES

12U.S.C. §411 39

Gov.Code, Chap. 30 50 Gov. Code §311.005(7) 36 Gov.C. §312.002 37 TC §502.040 27,28,32,33,53 TC §502.473 53 TC §504.010 32'56 TC §504.943 27,32,53 TC §§521.001(8) 36'40 Appellant's Brief vjjj No. 05-15-00148-CR TC §541.002(2) 40 TC §541.002(3) 40 TC §541.002(5) 36 TC §601.002(11) 36

North Carolina Statutes

North Carolina General Statutes §20-4.01(45) 30

RULES

C.Crim.Proc. Art. 14 5,26,33,35,47 C.Crim.Proc. Art. 21.20 62,63 C.Crim.Proc. Art. 21.21 52,62,63 C.Crim.Proc. Art. 21.22 62,63 C.Crim.Proc Art. 27.08 56 C.Crim.Proc. Art. 45.002 62 C.Crim.Proc. Art. 45.019(e)(2) 50 C.CrimProc, Art. 45.201 49 Tex.R.Civ.Proc, Rule 53 51 Tex.R.Civ.Proc, Rule 93 42 Texas Rule ofEvidence 201(b) 63 Texas Rule ofEvidence 701 61 Texas Rule ofEvidence 702 61 Texas Rule ofEvidence 704 61 Texas Rule ofEvidence 705 61

Appellant's Brief jx No. 05-15-00148-CR OTHER AUTHORITIES

Carrattv.Morley, (1841) 113 Eng. Rep. 1036 14 Darryl K. Brown, Democracy andDecriminalization, 86 Tex. L. Rev. 223, 232 n.31(2007) 21 Malcomsonv. Scott, 23 N.W. 166 (Mich. 1885) 14 Rachel E. Barkow, Administering Crime, 52 UCLA L. Rev. 715(2005) 21 Restatement of Torts § 121 13 Restatement (Second) of Torts § 121 13 Wayne A. Logan, Police Mistakes ofLaw, 61 Emory LJ. 69, 86 (2011) 18 W. Blake Odgers & Walter Blake Odgers, The Common Law ofEngland 481 (2d ed. 1920) 14,15

STATEMENT ON ORAL ARGUMENT

The points oferror in this appeal are adequately presented in the appellate record. Marzett believes that oral argument would not significantly aid the Court in determining the legal issues presented on appeal and the Court should exercise its discretion to decide this case without such argument. TEX. R. APP. P. 39.8.

STATEMENT OF THE CASE

This case originated in the CITY OF FRISCO MUNICIPAL COURT

Appellant's Brief x No. 05-15-00148-CR where a CLERK of the MUICIPAL COURT filed a charging instrument labeled "complaint" alleging that Appellant failed to register his private property as a motor vehicle and display license plates under TRANSPORTATION CODE §502.493, (hereinafter "TC) (CR_11). Appellant was convicted in a bench trial in the MUNICIPAL COURT (CR19). Appellant was required to post a bond for twice the amount ofthe fine and court cost (CR230), in order to perfect his appeal to the COUNTY COURT AT LAW #1 (CR_13-14). Appellant was again convicted in a trial de novo to the bench in the COUNTY COURT AT LAW #1 (CR_340). Appellant appealed his conviction inthe COUNTY COURT AT LAW #1 to the Fifth District Court of Appeals (CR_388-389).

ISSUES PRESENTED

Issue I. Belcher Did Not Have "Reasonable Suspicion" To Conduct A Warrantless Seizure of Appellant 9

Issue II. The trial JUDGE erred as matter of law, when she refused to disqualify herself 35

Issue III. The COURT erred as a matter of law in applying the TC as the choice of law 41

Issue IV. The TC "as applied" to appellant's private property and activities, violated the Texas Constitution, Art. III., §35 42

Issue V. Appellant committed no act within the territorial jurisdiction ofthe TC 44 Issue VI. The COUNTY COURT lacked subject matter jurisdiction ofthis case 45 Issue VII. The COURT lacked personal jurisdiction

Appellant's Brief xj No. 05-15-00148-CR of Appellant 48

Issue VIII. The CLERK had no standing to act as affiant on a charging instrument 49

Issue IX. The charging instrument was insufficient to give appellant constitutional notice of the cause and nature of the accusation against him 52

Issue X. The COURT erred as a matter of law in finding the charging instrument substantively sufficient to allege an offense 54

Issue XL The TC "as applied" to appellant violated U.S. Constitution. Sixth Amendment 57

Issue XII. The Subject Matter of the TC is unconstitutionally vague 58

Issue XIII. Belcher's testimony should have been limited 60

Issue XIV. The CLERK's affidavit is defective as a charging instrument 62

Issue XV. Belcher's unsworn report cannot support an Information 63

Issue XVI. Appellant's request for judicial notice of adjudicative facts should have been granted 63

Issue XVII. The COURT erred as a matter of law and abused its discretion when it refused to strike the testimony of BELCHER 64

Issue XVIII. The COURT erred as a matter oflaw when it found the evidence sufficient to support conviction 65

Appellant's Brief xjj No. 05-15-00148-CR APPELLANT'S BRIEF

TO THE HONORABLE 5th DISTRICT COURT OF APPEALS:

Inthis appeal, Appellant Robert E. Marzett (hereinafter "Appellant"),

request that this Court reverse the judgment ofthe COLLIN COUNTY COURT AT LAW #1 (hereinafter"COUNTY COURT").

STATEMENT OF FACTS

The Fourth Amendment permits police officers to stop a motor

vehicle and its occupants for law enforcement purposes only when there is at least reasonable suspicion that a law has been violated. This case presents

the question whether an officer's misinterpretation ofthe TC can form the basis for reasonable suspicion.

On June 24, 2013, Appellant was seized, without a warrant by a CITY OF FRISCO POLICE OFFICER, Lindsey Belcher (hereinafter

"Belcher") while traveling in the city of FRISCO, county of Collin, state of

Appellant's Brief Page 1of 68 No. 05-15-00148-CR Texas (CR_260). Belcher was acting as apolice officer1 ofalocal authority2 under the TC when she seized Appellant because his private property

displayed no license plates onthe rear (RR_Vol_4, 24:4-27:14). Appellant

informed Belcherthat he was not engaged in "transportation" and his private

property was not being used as a "device" to "transport or draw" persons or

property on a "public highway" (CR260). Belcher formally arrested Appellant, impounded Appellant's private property and he was confined in the CITY OF FRISCO JAIL (CR_260). Appellant was required to post a

bond payable only in Federal Reserve notes in order to secure his release (CR_230) and the release ofhis property. Acharging instrument labeled "COMPLAINT" was filed on June 28, 2013, alleging failure to display

registration insignia and license plates (CR_11). Appellant was convicted in the MUNICIPAL COURT and appealed (CRJ3-14). A bond payable in

Federal Reserve notes for twice the amount of the fine was required in order

to perfect his appeal to the COUNTY COURT (CR_230).

1TC §541.002(4) ""Police officer" means an officer authorized to direct traffic or arrest persons who violate traffic regulations." 2TC §541.002(3)(A) "Local authority" means acounty, municipality, ot other local entity authorized to enact traffic laws under the laws of this state;..." TC §541.002(5) "State" has the meaning assigned by Section 311.005, Government Code, and includes a province of Canada. Gov. Code §311.005(7) ""State," when referring to apart ofthe United States, includes any state, district, commonwealth, territory, and insular possession ofthe United States and any area subject to the legislative authority ofthe United States ofAmerica." Appellant's Brief Page 2of 68 No. 05-15-00148-CR On August 29, 2014, appellant filed a motion to disqualify the

COUNTY COURT JUDGE Conine Mason, (hereinafter "Mason")

(CR_231-245). On September 3, 2014, the COUNTY COURT denied the

motion and referred it to the FIRST ADMINISTRATIVE JUDICIAL

DISTRICT (CR_249). On September 3, 2014, JUDGE Mary Murphy denied

appellant's motion (CR_250). On September 11, 2014, the COUNTY COURT mailed appellant notice ofthe denial and set a pretrial hearing for

October 1, 2014 (CR_250,255). On September 19, 2014, Appellant

requested findings and conclusions regarding the denial ofthe motion to disqualify the trialjudge (CR_256-258).

On September 29, 2014, appellant filed several pre-trial motions including aMotion to quash complaint (CR_259-292); motion to exclude expert and lay testimony (CR_303-307); request for judicial notice of adjudicative facts (CR_308-313); request for judicial notice of Texas law (CR_293-302); and amotion to set ahearing (CR_314-315). On November 3, 2014, appellant filed exhibits in support of appellant's request for judicial notice of adjudicative facts (CR_320-337). On October 1, 2014, the COURT issued an order setting ahearing for November 13, 2014 (CR_318). On November 13,2014, a hearing was held to consider appellant's motions (RR_Vol_3). Appellant argued the merits ofhis motion to exclude

Appellant's Brief Page 3of 68 No. 05-15-00148-CR expert and lay testimony (RR_Vol._3, 61:4-76:10), request for judicial

notice of law (RR_Vol._3, 7:7-12:11), request for judicial notice of

adjudicative facts (RR_Vol._3, 12:12-14:17), and special appearance and

motionto quash complaint (RR_Vol._3, 14:18-61:2). After hearing

arguments, the COURT issued orders denying two of appellant's motions

(CR_338-339). The COURT refused to consider appellant's motion to

exclude expert and lay testimony, because the motion should have been

labeled a motion in limine. Because it was mislabeled, Mason would not

consider it. The COURT denied Appellant's motion to quash (CR_339) and

his request for judicial notice ofadjudicative facts (CR_338). On November

20, 2014, appellant was convicted in a trial to the court and ordered to pay a

fine of $ 99.00 plus court cost of $249 inFederal Reserve notes (CR_340).

On November 24, 2014, appellant filed a request for findings and

conclusions regarding denial ofappellant's motions (CR_344-345), and the COURT'S judgment ofguilt (CR_346-348). On December 18, 2014, appellant filed arequest for past due findings and conclusions regarding his motions (CR_349-351), the judgment (CRJ46-348), and a motion for new trial (CRJ52-376). On January 7, 2015, the COUNTY COURT issued findings and conclusions regarding guilt (CRJ77-378) and adocket entry denying appellant's motion for a new trial.

u *> o • f Page 4 of 68 Appellant s Brief & No. 05-15-00148-CR On January 13, 2014, appellant filed a request for special amended

findings and conclusions on the issue of guilt (CR379-382). On January 14,

2015, the COURT certified appellant's right of appeal (CR_391). On

February 3, appellant filed notice of appeal (CR388-389), request for the

CLERK'S RECORD (CR_384-385) and request for the REPORTER'S

RECORD (CR_386-387).

SUMMARY OF THE ARGUMENT

The traffic stop of Appellant's car, based solely onthe police officer's

misinterpretation oflocal traffic law, violated the U.S. Constitution, Fourth Amendment, Texas Constitution, Art. I, §9 and the CODE ORCRIMINAL

PROCEDURE (hereinafter "C.Crim.Proc") Chapter 14.

This Court has long held that a traffic stop is valid under the Texas

Constitution, Art. I, §9, C.Crim.Proc. Art. 14.01, and the Fourth Amendment only ifofficers have objectively reasonable suspicion to believe that alaw is being violated. That objective inquiry can be properly performed only by measuring the facts against the correct interpretation ofthe law. Otherwise, the reasonable suspicion doctrine would be at odds with various common- law principles, including the ancient maxim that ignorance ofthe criminal law is no excuse. Allowing traffic stops based on "reasonable" mistakes of

Appellant's Brief Page 5of 68 No. 05-15-00148-CR law also would be in tension with multiple canons of statutory construction

aimed at preventing the government from benefitting from ambiguity in

criminal statutes. Finally, such a rule would subvert warrantless seizure

provision's core purpose of constraining officer discretion, for it would

confer upon the police the authority to seize citizens whenthe facts known

to the officers, measured against an accurate view of the law, reveal only

wholly innocent conduct.

To be sure, warrantless seizure provisions tolerate traffic stops based

on reasonable mistakes of fact. But the reasons for doing so do not carry

over to mistakes officers make about applicable law. The Fourth

Amendment affords officers leeway to make good-faith mistakes of fact

because officers need flexibility to make quick, ad hoc factual assessments

in the field. And Courts evaluating the legality of traffic stops have already

shown that they can easily distinguish mistakes oflaw from those offact. Law enforcement incentives would be skewed if stops based on

officer mistakes of traffic law were upheld as proper. Most notably, police

departments would be discouraged from using resources at their disposal to ensure that officers on patrol have an accurate understanding ofthe law. Police departments would also be discouraged from asking lawmakers to clarify ambiguous laws, for such clarifications would shrink officer

Appellant's Brief Page 6of 68 No. 05-15-00148-CR discretion. Indeed, if motorists were subject to seizures based on mistaken

interpretations of laws, it also would be much more difficult - indeed,

sometimes downright impossible - for people to avoid being exposed to

traffic stops. And to the extent the COUNTY COURT'S holding would

allow stops based on reasonable mistakes as to the existence of law, the

universe of circumstances allowing officers to impose upon citizens the

burdens of traffic stops would be broader still.

The safety objectives of traffic laws do not make police

misinterpretations ofsuch laws more tolerable. In Texas, as elsewhere, it is the legislature's job to decide what traffic activities should be prohibited because they are unsafe. It is the responsibility oflaw enforcement to learn and enforce those laws. Warrantless seizure laws do not allow the police to

reinterpret and broaden those laws according to officers' own perceptions of what is necessary to protect public safety. Misinterpretations oflaw by law enforcement officers is compounded when courts charged with presiding over such cases adopt the officer's interpretation without question. Failure of courts to correctly interpret and apply TC law leads to injustice and multiple other violations ofcitizen's rights as is demonstrated by this case. Practically every issue complained ofin this appeal is founded on an incorrect interpretation ofthe law by Belcher and the COUNTY COURT. When

Appellant's Brief Page 7of 68 No. 05-15-00148-CR questioned, public officials refuse to identify the source of their power when

enforcing TC law and refuse to express their interpretation of key provisions

of this code such as precisely what activity is being regulated by this code or

what physical territory is included within the territorial jurisdiction of this

code. With a correct interpretation of the TC as a foundation, this case raises

multiple constitutional challenges regarding the exercise ofjurisdiction

within the territory of a Union state and the limitations state and federal

constitutions place on that power.

STANDARD OF REVIEW

The standard of review for finding appellant guilty is an abuse of

discretion standard. Heine v. Texas Dep't ofPub. Safety, 92 S.W.3d. 642,

646 (Tex. App. - Austin 2002, pet denied). A trial court abuses its discretion

if its decision is arbitrary, unreasonable, and without reference to any

guiding principals. Mercedes Benz Credit Corp. v. Rhyne, 925 S.W.2d. 664,

666 (Tex. 1996). A trial court has no discretion in determining what the law

is or applying the law to the facts. Thus, a clear failure by the trial court to

analyze orapply the law will constitute an abuse ofdiscretion. Walker v. Packer, 827 S.W.2d. 833, 840 (Tex. 1992). In short, the trial court has no

discretion to misapply the law. Therefore, when a court incorrectly construes

Appellant's Brief Page 8of 68 No. 05-15-00148-CR or refuses to follow the law, or fails to correctly apply the law to the facts,

the abuse of discretion standard essentially amounts to a de novo review.

When the ruling turns on a question of law, such as the interpretation of a

statue, the ruling is reviewed de novo. Texas Dep't ofPub. Safety v. Nail,

305 S.W.3d. 673, 678 (Tex. App. - Austin 2010, no pet). Under this

standard, the court conducts an independent analysis of the record and gives

no deference to the trial court's conclusions.

The standard of review in determining factual sufficiency of the

evidence is whether a neutral review of all the evidence, both for and against

the finding, demonstrates that the proof ofguilt is so obviously weak, or so contrary to the overwhelming preponderance ofthe evidence. King v. State, 29 S.W.3d. 556, 563 (Tex. Crim. App. 2000). In performing a de novo

review, we exercise our own judgment and re-determine each legal issue. Quick v. City ofAustin, 1S.W.3d. 109, 116 (Tex. 1998). Conclusions of law will be upheld on appeal ifthe judgment can be sustained on any legal theory the evidence supports. Waggoner v. Morrow, 932 S.W.2d. 627, 631 (Tex.App - Houston [14th Dist] 1996, no writ).

ARGUMENT AND AUTHORITIES

Issue I. Belcher Did Not Have "Reasonable Suspicion" To Conduct A ii *> n • f Page 9 of 68 Appellant s Brief & No. 05-15-00148-CR ^i^m^l^^l^irm-i^^es'^K^'^f^

Warrantless Seizure of Appellant

As the Tenth Circuit has explained, the relevant question in a

case such as this is: "Against what interpretation of the law should [a court]

assess the facts when deciding whether there was reasonable suspicion ... to

make a traffic stop?" United States v. Nicholson, 721 F.3d 1236, 1244 (10th

Cir. 2013). Should a court assess the facts against the "correct interpretation

of the law" or against whatever misinterpretation of the law an officer might

reasonably have? For the reasons that follow, the reasonable suspicion

inquiry requires courts to measure the facts against the correct interpretation

of the law.

Fourth Amendment Precedent, Tradition, And Purpose Require The

Facts Known To The Officer To Be Measured Against The Correct

Interpretation of The Law.

The Fourth Amendment provides that "[t]he right of the people to

be secure intheir persons, houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated." U.S. Const. Amend. IV.

"[Shopping an automobile and detaining its occupants constitute a 'seizure'" within the meaning ofthe Fourth Amendment. Delaware v. Prouse, 440 U.S. 648, 653 (1979). Accordingly, stopping an automobile and detaining the driver "are unreasonable under the Fourth Amendment" unless the police

Appellant's Brief Page 10 of 68 No. 05-15-00148-CR ^•$*'***?*!#'?jS*M*^«^Ki*= •- *'•*• 'i !•«• •**'«-•**&<*•#< j0i?i»iK^i^«(W^*^^»*^awr-v*

have "at least articulable and reasonable suspicion." Ttf. at 663; see also

Ornelas v. United States, 517 U.S. 690, 693 (1996) ("An investigatory stop

is permissible under the Fourth Amendment if supported by reasonable

suspicion.").

The U.S. Supreme Court's precedent dictates that reasonable

suspicion is an objective test. The test requires an officerto have '"a

particularized and objective basis' for suspecting the person stopped of

criminal activity." Ornelas, 517 U.S. at 696 (quoting United States v. Cortez,

449 U.S. 411, 417-18 (1981)). In Whren v. United States, 517 U.S. 806

(1996), the Supreme Court unanimously reaffirmed the need for objectivity

in assessing the reasonableness of a traffic stop, holding that an officer's

subjective reason for conducting a traffic stop is irrelevant to its legality. Id. at 813. This holding was repeated by Justice Kagan in the Supreme Court

case of Heien v. North Carolina, 135 S.Ct. 530, 541 (2014).

The only sensible way to determine reasonableness is to measure

individualized suspicion "against the correct interpretation ofthe law, as

opposed to any other interpretation, even ifarguably a reasonable one," United States v. Nicholson, 721 F.3d 1236, 1244 (10th Cir.2013). The "essential purpose" ofthe reasonable suspicion standard, after all, is to constrain "the exercise of discretion by government officials, including law

Appellant's Brief Page 11 of 68 No. 05-15-00148-CR enforcement agents, in order to safeguard the privacy and security of

individuals against arbitrary invasions." Prouse, 440 U.S. at 653-54

(citations and internal quotation marks omitted). It is arbitrary for officers to

effectuate traffic stops when neither the facts known to them, nor any

reasonable inferences, indicate anything other than wholly innocent conduct.

Even when officers misinterpret the law entirely in good faith, a seizure on

that basis is still indiscriminate insofar as it lacks any objective legal

justification.

Tradition likewise supports evaluating reasonable suspicion with

reference to the correct interpretation of traffic law. The Supreme Court has

repeatedly recognized that post-Founding common law cases can reveal

constitutional principles, for the common law generally developed in

harmony with such principles. See, e.g., Melendez-Diaz v. Massachusetts,

557 U.S. 305, 321-24 (2009) (inferring constitutional meaning from late

nineteenth-century and early twentieth-century state-law cases); Atwater v.

City ofLago Vista, 532 U.S. 318, 342-43 (2001) (same). Under the common law, "[n]o right is held more sacred, or is more

carefully guarded ... than the right ofevery individual to the possession and control ofhis own person, free from all restraint or interference ofothers, unless by clear and unquestionable authority oflaw." Terry v. Ohio, 392

Appellant's Brief Page 12 of 68 No. 05-15-00148-CR U.S. 1, 9 (1968) (emphasis added) (quoting Union Pac. Ry. Co. v. Botsford,

141 U.S. 250, 251 (1891)) (internal quotation marks omitted). Thus,

although the common law has long protected an officer from tort liability "in

every case where he act[ed] under a reasonable mistake as to the existence of

facts," Restatement of Torts § 121 cmt. i (1934) (emphasis added), the

common law has always presumed that officers know the law, and has held

them liable in trespass whenever they make warrantless arrests based on

incorrect interpretations of statutes.

As the first Restatement of Torts memorialized the rule: "[A]n

officer is not privileged to arrest another whom he reasonably suspects of

having committed an act which the officer, through a mistake of law

reasonable in one ofhis position, believes to be a common law felony."

Restatement of Torts § 121 cmt. i (1934) (emphasis added); see also

Restatement (Second) of Torts § 121 cmt. i (1965) (reaffirming this rule).

Indeed, the Restatement addressed the precise form of mistake at issue here,

expressly foreclosing any exception for mistakes of law based onan

ambiguous "statute .. . [that] is not judicially construed [contrary to the officer's view] until after the arrest is made." Restatement ofTorts § 121

cmt. i; see also id. ("No protection is given to a peace officer who, however

reasonably, acts under a mistake of law" ofthis type).

Appellant's Brief Page 13 of 68 No. 05-15-00148-CR The Michigan Supreme Court's decision in Malcomson v. Scott, 23

N.W. 166 (Mich. 1885), illustrates this rule. There, an officer arrested the

plaintiff on facts that did not constitute the charged crimes of larceny or

embezzlement. The court held the arrest invalid, explaining that "[a]n officer

ofjustice is bound to know what the law is, and if the facts on which he

proceeds, if true, would not justify action under the law, he is a wrong-doer."

Id. at 168. As that court continued: "[Violations of law by those who are

appointed to protect instead of destroy private security, deserve no favor."

Id.

English common law developed based on the same presumption. In

Carratt v. Morley, (1841) 113 Eng. Rep. 1036, for instance, an arresting

officer was held liable for false imprisonment based on his mistake of law

when there was no jurisdiction to make the arrest. A treatise summarized the

rule this way: If "the Court has no jurisdiction over the cause before it, the whole proceeding is bad, and any one who enforces the process ofthe Court therein will be liable to an action for false imprisonment; for he ispresumed

to know the law and therefore to be cognisant of the want of jurisdiction." 1

W. Blake Odgers &Walter Blake Odgers, The Common Law ofEngland 481 (2d ed. 1920) (emphasis added) (footnote omitted). Though there was possibly an exception to this rule for officers acting under the direction of a

Appellant's Brief Page 14 of 68 No. 05-15-00148-CR magisterial warrant, officers were entitled to no protection from liability

when acting on their own. Id. at 481-82. Measuring facts against the correct

interpretation of the law maintains the proper relationship between citizens

and their government, as reflected in several doctrinal precepts.

First and foremost, Whren's anti-subjectivity rule gives officers

"broad leeway" to conduct traffic stops regardless of whether their

subjective intent corresponds to the legal justifications for their actions.

UnitedStates v. Miller, 146 F.3d 274, 279 (5th Cir. 1998). "But the flip side

of that leeway is that the legal justification must be objectively grounded" in

a correct interpretation of the law. Id. In other words, if officers can detain a

motorist for any traffic violation, no matter how small and regardless of their

subjective motives, they should not be able to detain a motorist when the

observed facts, measured against the correct interpretation of the law, reveal

only wholly innocent conduct.

Evaluating the legality of police officers' actions against the correct

interpretation ofthe law also is consistent with the standard to which ordinary citizens are held. "[T]he background presumption" - fundamental to the administration of criminal law- is that "every citizen knows the law."

Appellant's Brief Page 15 of 68 No. 05-15-00148-CR Bryan v. UnitedStates, 524 U.S. 184, 193 (1998). Accordingly, "the

traditional rule" is that "ignorance of the law is no excuse." Id. at 196.

It takes little reflection to see the "fundamental unfairness" of holding

citizens to that maxim "while allowing those entrusted to enforce the law to

be ignorant of it." UnitedStates v. Chanthasouxat, 342 F.3d 1271, 1280

(11th Cir. 2003) (internal quotation marks omitted). Indeed, when a police

officer drives as a citizen, he can be held accountable for any violations of

the traffic code, no matter how reasonable any mistake he might make may

turn out to be. It would be counterintuitive, to say the least, to presume that

an officer knows the law in his capacity as a citizen, but to abandon that

presumption when he acts to enforce the law. Put in more absolute terms,

"failure to understand the law by the very person charged with enforcing it is

not objectively reasonable." United States v. Tibbetts, 396 F.3d 1132, 1138

(10th Cir. 2005).

Finally, various canons of statutory construction reinforce the

principle that the government should not benefit from mistaken

interpretations ofambiguous or otherwise confusing criminal laws. Under the "venerable rule" of lenity, United States v. R.L.C, 503 U.S. 291, 305

(1992) (opinion ofSouter, J.), "penal laws are to be construed strictly" in

Appellant's Brief Page 16 of 68 No. 05-15-00148-CR order to prevent the government from restraining individual liberty absent

clear authority to do so, United States v. Wiltberger, 18 U.S. (5 Wheat.) 76,

95 (1820). Thus, "when choice has to be made between two readings of what

conduct Congress has made a crime, it is appropriate, before we choose the

harsher alternative, to require that Congress should have spoken in language

that is clear and definite." United States v. Bass, 404 U.S. 336, 347 (1971)

(quoting UnitedStates v. Universal C.I.T. Credit Corp., 344 U.S. 218, 221-

22 (1952)) (internal quotation marks omitted). And if a criminal statute is so

indeterminate that "men of common intelligence must necessarily guess at

its meaning," the law is constitutionally void for vagueness. United States v.

Lanier, 520 U.S. 259, 266 (1997) (quoting Connally v. Gen. Constr. Co.,

269 U.S. 385, 391 (1926)).

The same canons apply to state statutes. In Texas, for example, any

statute enacted in the exercise of the police power must be strictly construed

so as to result in the least interference with personal liberty. And, of course,

the void-for-vagueness doctrine applies equally to state laws. See, e.g.,

Giaccio v. Pennsylvania, 382 U.S. 399, 404-05 (1966). The COUNTY

COURT'S decision supports a holding that a police officer may act upon an

unduly expansive interpretation oflaw, yet still act reasonably under the circumstances and is at odds with these principles of construction. To the Appellant's Brief Page 17 of 68 No. 05-15-00148-CR extent a traffic statute is ambiguous, the government's power to restrain

individual liberty should shrink, not expand.

The COUNTY COURT resisted measuring reasonable suspicion

against the correct interpretation of the law partly so that it could treat

mistakes of law "the same" as mistakes of fact, which the Fourth

Amendment tolerates so long as the mistakes are objectively reasonable. In

contrast to factual inferences, legal analysis is not something that officers

must do on the fly or that officers are better trained than courts to undertake.

A traffic law, "unlike the case-by-case factual possibilities entailed in

probable cause and reasonable suspicion assessments, has an ex ante

epistemic baseline." Wayne A. Logan, Police Mistakes ofLaw, 61 Emory

L.J. 69, 86 (2011) (footnote omitted). Here, for instance, the TC either

requires "every" Citizen of Texas to register their private property as a

"vehicle" or it only requires registration by "persons" who have purchased a

"vehicle" in the last 30 days or are residents of this "state." Nothing an

officer might suddenly confront in the field could affect that purely legal

question. When it comes to legal assessments, ordinary people are not legal

technicians either, and they are held responsible for the law as correctly

interpreted. Thus, justas courts have long distinguished between criminal

defendants' mistakes of fact and law and held them accountable for the

Appellant's Brief Page 18 of 68 No. 05-15-00148-CR latter, see Reynolds v. United States, 98 U.S. 145, 167 (1878), so should they

maintain this distinction when evaluating law enforcement's claims of

reasonable suspicion. A refusal to excuse mistakes of law provides an

"incentive to err on the side of constitutional behavior." United States v.

Johnson, 457 U.S. 537, 561 (1982); see also Davis v United States, 131 S.

Ct. 2419, 2435 (2011) (Sotomayor, J., concurring) ("[W]hen police decide to

conduct a search or seizure in the absence of case law (or other authority)...

exclusion of the evidence obtained may deter" violations of law).

An individual officer's misinterpretation of a traffic law closely

resembles the situation in Johnson. As in Johnson, 457 U.S. at 561, a

misinterpretation of traffic code involves an officer on patrol taking an

overly aggressive view of a legal issue on which "reasonable minds ... may

differ." UnitedStates v. Davis, 598 F.3d 1259, 1267 (11th Cir. 2010), aff d,

131 S. Ct. 2419 (2011) (internal quotation marks and citationomitted). As

the only three courts of appeals to have squarely considered the question (all in the context of evaluating the applicability of the good-faith exception to

the exclusionary rule) have recognized, this is very different than relying on

an explicit directive from a court or legislature. Id.; see also United States v.

McDonald, 453 F.3d 958, 962 (7th Cir. 2006); United States v. Chanthasouxat, 342 F.3d 1271, 1280 (11th Cir. 2003); United States v. Appellant's Brief Page 19 of 68 No. 05-15-00148-CR Lopez- Soto, 205 F.3d 1101, 1106 (9th Cir. 2000). And it is something

worthy of deterrence - at least in the sense of deeming such seizures as

unconstitutional.

Indeed, in a world in which police officers would be allowed to

conduct traffic stops anytime state law could reasonably be interpreted to

prohibit the conduct the officer observed, officers would be all but invited to

read traffic statutes aggressively. Instead of trying to determine the best

reading of the law, authorities wishing to vigorously enforce the law would

be encouraged to identify the broadest possible range of plausible readings

of any given traffic law, for such an approach would support traffic stops in

the greatest number of cases.

Not only would this incentive be problematic on its own terms, but it

also would threaten to put officers' interpretive practices at odds with well-

established doctrines of strict construction, lenity, and vagueness. When

officers confront ambiguous statutes on which they lack outside guidance,

they should be encouraged to do exactly whatother branches of the

government must: construe ambiguous statutes narrowly, in favor of

individual liberty. Only by measuring reasonable suspicion against the

Appellant's Brief Page 20 of 68 No. 05-15-00148-CR correct interpretation of the law can the Fourth Amendment ensure these

incentives are aligned.

Measuring reasonable suspicion against the correct interpretation of

the law also encourages officers to take advantage of available tools to

become more familiar with the law. Officers have a variety of means at their

disposal to help them determine the meaning of traffic laws, including the

extensive availability of targeted legal education at police training

academies, increasingly powerful technology in officers' cruisers and

pockets, and the ability to ask for clarifications from individuals trained in the law (such as local counsel or lawyers in an attorney general's office).

Only by refusing to excuse officers' mistakes of law would officers be

properly motivated to make use of these resources.

What is more, law enforcement agencies typically have unique

relationships with lawmakers and access to the legislative process. See, e.g.,

Rachel E. Barkow, Administering Crime, 52 UCLA L. Rev. 715, 728

(2005); Darryl K. Brown, Democracy and Decriminalization, 86 Tex. L. Rev. 223, 232 n.31 (2007). Ifpolice departments are struggling to determine the correct meaning ofcertain laws, the Fourth Amendment should encourage them to ask legislatures to clarify the statutes - not to eschew

Appellant's Brief Page 21 of 68 No. 05-15-00148-CR such clarification for fear that removing ambiguity in traffic statutes will

restrict their power.3

Measuring reasonable suspicion against the correct interpretation of

the traffic code also avoids problematic consequences for law-abiding

citizens. The Supreme Court has recognized, however, that citizens have a

"private interest in avoiding" traffic stops, Whren v. United States, 517 U.S.

806, 817-18 (1996), because such seizures are a substantial infringement on

one's liberty. A traffic stop constitutes a "possibly unsettling show of

authority," Delaware v. Prouse, 440 U.S. 648, 657 (1979), and involves "the

loss of our freedom to come and go as we please without police

interference," Navarette v. California, 134 S. Ct. 1683, 1697 (2014) (Scalia,

J., dissenting). Traffic stops moreover "create substantial anxiety," "interfere with freedom of movement, are inconvenient, and consume time." Prouse,

440 U.S. at 657.

3This is not to say that the onus to generate unambiguous laws falls primarily on law enforcement agencies, or on this Court through the tool of constitutional jurisprudence. It is primarily the job of legislatures to enact clear laws. At the same time, "[t]he less the courts insist on precision, the less the legislatures will take the trouble to provide it." Antonin Scalia &Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 301 (2012).

Appellant's Brief Page 22 of 68 No. 05-15-00148-CR More seriously, a simple mistaken traffic stop can escalate into a

series of increasingly invasive acts, as has been demonstrated in recent cases

throughout the Union, including Texas. Police effectuating traffic stops may

conduct protective pat-downs, Pennsylvania v. Mimms, 434 U.S. 106 (1977),

which this Court has recognized "must surely be an annoying, frightening,

and perhaps humiliating experience," Terry v. Ohio, 392 U.S. 1, 24-25

(1968). They also may request consent to conduct consensual searches,

which, as this case demonstrates, can be difficult for motorists to refuse.

Officers who conduct traffic stops also have the discretionto arrest

offending motorists, Atwater v. City ofLago Vista, 532 U.S. 318 (2001),

which canthen lead to involuntary searches of the person's possessions,

United States v. Robinson, 414 U.S. 218 (1973), strip searches, Florence v.

Bd. ofChosen Freeholders, 132 S. Ct. 1510 (2012), and possibly even the collection ofDNA samples, Maryland v. King, 133 S. Ct. 1958 (2013).

It would be much more difficult - indeed, sometimes downright

impossible - for people to avoid being exposed to the possibility oftraffic stops ifamistake oflaw could supply reasonable suspicion. Traffic laws are classic malum prohibitum statutes; they typically proscribe conduct not because itis inherently blameworthy but rather to further more regulatory objectives. That being so, the main way for citizens to avoid tripping over Appellant's Brief Page 23 of 68 No. 05-15-00148-CR such statutes is to familiarize themselves with the traffic code. It is the

Citizen's responsibility to know the law.

Yet under the decision of the COUNTY COURT, Citizens seeking to

avoid exposing themselves to the burdens of traffic stops would have to

discern not only their legal obligations but also some unidentified sphere of

wholly innocent activity that a police officer believes is also prohibited.

Whatever precise formulation would apply here, there can be no doubt that

the scope of conduct covered by "reasonable" interpretations oftraffic codes

would be much broader than the scope of conduct covered by correct

interpretations of those laws.

That being so, officers would have much broader discretion to initiate

traffic stops, and citizens would be forced to give a wide berth to the traffic code to account for this expansion of authority. Even more troubling,

officers would sometimes have the power to stop a motorist no matter what

the motorist does. When a driver has only two choices and the governing

law is capable ofbeing reasonably read to prohibit either choice, an officer could stop the driver either way.

Were this Court to adopt the position that an officer can make a

reasonable mistake about the very existence ofa law, the citizen's quandary 11 *» s dBrief Appellant •f Page 5 24 of 68 No. 05-15-00148-CR ,I^J*$4iJlsm?>!8teWr&x^**'.SK~ - --i, • -^.(,v-^*^ari>^«is*ysa*W**W^'to^

would only deepen, for now he would have to hypothesize about the non

existent laws that might reasonably exist, but do not. This was the case in

Travis v. State, 959 S.W.2d 32 (Ark. 1998), in which the court held that a

traffic stop for failing to display an expiration date sticker on a license plate

comported with the Fourth Amendment, even though state law required no

such sticker. Id. at 33-35. Surely it is unfair to require citizens seeking to

steer clear of police contact to imagine what an officermight reasonably

believe should be against the law but is not.

In Texas, as elsewhere, it is first and foremost "the legislature's job"

to decide which activities are unsafe and thus should be prohibited, not a

police officer's. And the Texas Legislature has squarely addressed what

entities are required to register their property as "vehicles" and display

license plates. Especially when a legislature has considered and resolved an issue as directly as this, the responsibility of law enforcement is to learn and apply what the statute provides, not reinterpret and broaden the law according to officers' own intuitions about what they think would best

protect public safety.

At bottom, this case involves a simple proposition: This Court should demand of the officers who seized Appellant exactly what the officer

Appellant's Brief Page 25 of 68 No. 05-15-00148-CR intended to demand of him as a citizen - knowledge of the law. Anything

less would undermine long- settled relationships between the people and

their government. It would also destabilize the Supreme Court's carefully

delineated Fourth Amendment doctrine protecting fundamental rights from

remedies. There is no good reason to inflict such damage upon our

constitutional structure.

Applying the principals thus enunciated to the instant case, Appellant

challenges the reasonableness ofhis seizure under the Texas Constitution, Art.

I, § 9, Code ofCriminal Procedure, Chapter 14 and the U.S. Consitution,

Fourth Amendment. Appellate argued that Belcher's conclusion that appellant

was required to "register" his private property as a "vehicle" and display STATE OF TEXAS issued license plates on it was not supported by the TC.

TC §502.040(a) is the section that expresses what entities are required to register their private property as a "vehicle." It states I part:

"Not more than 30 days after purchasing a vehicle or becoming a resident of this state, the owner of a motor vehicle, trailer, or semitrailer shall apply for the registration ofthe vehicle for:" TC §502.493(a) is the section that expresses the offense offailure to display registration insignia and states inpart:

Appellant's Brief Page 26 of 68 No. 05-15-00148-CR -k**»mK8,£<8*#*» ™ *»

"A person commits an offense if the person operates on a public highway during a registration period a motor vehicle that does not properly display the registration insignia issued by the department that establishes that the license plates have been validated for the period."

TC §504.943(a) expresses the offense for failing to display license

plates and states in part:

"Except as provided by Subsection (b), a person commits an offense if the person operates on a public highway, during a registration period, a motor vehicle that does not display two license plates that:"

These TC provisions establishes the requirements for registration,

displaying registration insignia, license plates and TC offenses under those

sections. In order to supportBELCHER's suspicionthat appellantwas

required to display license plates on his private property, prior to seizing

Appellant, she would have to possess specific knowledge that appellant was a

"person," who had purchased a "vehicle" inthe "thirty days" prior to this transaction or that he was a "resident" ofthe "state". Belcher's suspicion was

based solely onhervisual observations of no license plate and her

interpretation ofthe TC. This alone does not support reasonable suspicion to believe that Appellant was "required" to register his private property and display license plates. Without specific articulable facts that appellant met one ofthe requirements for registration, Belcher was without alegal or factual

Appellant's Brief Page 27 of 68 No. 05-15-00148-CR basis to support her suspicion that appellant was required to register and

display license plates.

A recent United States Supreme Court opinion specifically addresses

the standard to be applied in determining the reasonableness of a police

officer's observation that he has witnessed a violation of law in the case of

Helen v. NORTH CAROLINA, 135 S.Ct. 530 (2014). Appellant Heien was

challenging the constitutionality of his seizure under a North Carolina traffic

statute by a Surry County Sheriffs Deputy named Darisse. Darisse initiated

the seizure when he observed that one of appellant's two stop lamps was not

functioning properly. Darisse concluded that he had witnessed a violation of

law and conducted a warrantless seizure of Heien. The seizure led to a search

of Heien's car, to which Heien consented, and resulted in the discovery of

cocaine. Heien was charged with trafficking in cocaine and he sought to

suppress the evidence because he claimed the seizure was unreasonable and

violated the Fourth Amendment.

Heien argued that Darisse made a mistake of law, when he concluded

that he had witnessed a violation of law. Heien argued that this mistake of law

resulted in an unconstitutional seizure and discovery of the cocaine should be

suppressed. The trial court found the seizure reasonable and convicted Heien. The North Carolina Court of Appeals reversed, finding the seizure

Appellant's Brief Page 28 of 68 No. 05-15-00148-CR unreasonable. The North Carolina Supreme Court reversed again, finding the

seizure reasonable. The U.S. Supreme Court affirmed the decision of the North

Carolina Supreme Court. In finding that Darisse's's stop was based on

reasonable suspicion. The Court stated the following:

"The critical point is that the statute poses a quite difficult question of interpretation, and Sergeant Darisse'sjudgment, although overturned, had much to recommend it. I therefore agree with the Court that the traffic stop he conducted did not violate the Fourth Amendment. ..." Heien v. NORTH CAROLINA, 542.

Justice Kagan, writing in a concurring opinion, in which Justice

Ginsberg joined, stated the following:

"A court tasked with deciding whether an officer's mistake of law can support a seizure thus faces a straightforward question of statutory construction. If the statute is genuinely ambiguous, such that overturning the officer's judgment requires hard interpretive work, then the officer has made a reasonable mistake. But if not, not."

The Supreme Court found North Carolina statutes could be read to support Heien's interpretation that he was required to have only one stop lamp. However, it was also reasonable for Darisse to believe that a stop lamp was

included inthe term "rear lamps," and rear lamps were required by another

subsection to be in working order. Darisse's seizure ofHeien was found to be based on reasonable suspicion because an examination ofthe relevant law

Appellant's Brief Page 29 of 68 No. 05-15-00148-CR revealed there was statutory authority to Darisee's interpretation ofwhat

constituted a violation of the law. Many of the facts leading up to the seizure in

the Heien case are consistent with the facts of Appellant's case. Both cases

involve the enforcement of Uniform Traffic Laws. The territorial jurisdiction

of these traffic laws is a fictional federal territorial "State" within the exterior

limits of the state of North Carolina and the state of Texas, both states in the

Union. North Carolina General Statutes §20-4.01(45); TC §521.001(a)(8).

Both cases involve warrantless seizures based only on a visual observation

made by the officers. Both officers concluded they had witnessed a violation

of the law. Neither officer had specific information about Heien or Appellant

prior to their seizures. The question raised by Heien and now by Appellant;

were the officers' interpretation of law supported by the actual law?

On cross examination, Belcher testified as follows (RRVol. 4, 36:13-

37:3):

Q. "Officer Belcher, lets go backto the moment just before you

stopped me. Did you know anything me?

A. No.

Q. Did you know my name?

Q. Did you know whether or not I had bought amotor vehicle in the

Appellant's Brief Page 30 of 68 No. 05-15-00148-CR last 30 days?

Q. Did you know whether or not I was a resident of the state?

Belcher went on to testify that she believed Appellant was a "person" as

defined in the TC and more specifically, "an individual." When Belcher was

asked what an individual was, she responded a "person." When asked if she

had been instructed on how to use the Code Construction Act, to interpret the

TC, she responded, "No, I'm not aware of that." When asked about her

interpretation of "person," "vehicle," and "motor vehicle," Belcher made

circular arguments that do not comport with the actual law (RR_Vol._4, 37:4-

45:22). Belcher also testified that she stopped appellant because he did not

display license plates as required by law.

When asked about the TC requirements for registration, Belcher's

interpretation was again not supported by the actual law, and she once again

admitted that she did not know whether or not Appellant had purchased a

"motorvehicle" in the lastthirty days or that Appellant was a "resident" of the

"state" (RR_Vol._4 46:10-57:19). Belcher was not able to articulate why she

concluded Appellant was "required" to "register" his private property under

the TC. She stated she did not have to know Appellant was required to register

Appellant's Brief Page 31 of 68 No. 05-15-00148-CR ^.^••''••'*:w™x%tQW&lrt!l40&^^

in order to conclude that he specifically was required to display license plates

(RR 52:20-53:25). Belcher's interpretation of the TC puts the offense of not

displaying license plates, TC §504.943, the statue under which she seized

Appellant, before the requirement to register, TC §502.040(a), which

authorizes the issuance and placement of license plates, TC §504.010.

Belcher's testimony that she did not have to know that Appellant was required

to register before she could conduct a warrantless seizure is contrary to law

and all warrantless seizure authority.

When asked a series of questions regarding the definition of the term

"state" as used in the TC to define the territorialjurisdiction of this code, she

testified the term "state" as used in the definition of "state" in the TC and

Gov.C, means "Texas." Belcher could not support her interpretation with any

authority (RR_Vol._4, 64:25-74:13). Belcher testified that her interpretation of

the term "State" was based on her training and common knowledge.

Unfortunately, her interpretation is not inaccord with the definition expressed

by the legislature. The legislature's definition controls inthis case. Unlike Darisse, who cited sections of the North Carolina statutes to

support his conclusion that he had witnessed aviolation oflaw, Belcher and STATE OF TEXAS are unable to cite any provision of the TC that supports

her conclusions that Appellant met any ofthe conditions ofTC §§502.040,

Appellant's Brief Page 32 of 68 No. 05-15-00148-CR 504.010(a) or 504.943(a) and was required to register his private property as a

"vehicle" and display license plates. Without knowledge of specific articulable

facts about Appellant, prior to the seizure, Belcher's suspicions regarding

Appellant were unreasonable. A seizure made without reasonable suspicion is

a violation of the Texas Constitution, Art. 1 §9, the U.S. Constitution, Fourth

Amendment and C.Crim.Proc. Chap. 14.

The standard applied in the Heien case for determining the

reasonableness of an officer's conclusion that he has witnessed a violation of

law was utilized a few months later in the case ofNorthrup v. CITYOF

TOLEDO POLICE DEPARTMENT, UNITED STATES COURT OF

APPEALS, No. 14-4050 (May 13, 2015). While the facts of the case are

different, this case, like the instant case and the Heien case, involved a visual

observation made by a CITY OF TOLEDO POLICE OFFICER, Bright, who

concluded that based on his observation he had witnessed a violation of law.

Bright observed Northrup carrying a hand gun, holstered on his side and

concluded this act was a violation of Ohio law. Bright seized Northrup without

a warrant. Afterdisarming Northrup, putting him in handcuffs and placing

him in the back seatof his patrol car, the officer was able to identify Northrup.

Bright discovered that Northrup had an open carry permit making his carrying ofthe firearm legal. Bright cited Northrup onanother charge that was later

Appellant's Brief Page 33 of 68 No. 05-15-00148-CR dismissed.

Northrup sued Bright, another officer Ray and the CITY OF TOLEDO

POLICE DEPARTMENT, in FEDERAL DISTRICT COURT. Northrup

claimed violations of several of his rights protected by certain provisions of the

Federal Constitution and other state charges. The DISTRICT COURT

permitted Northrup's Fourth Amendment and state-law claims against Bright

and Ray to go to trial. Bright appealed the DISTRICT COURT'S decision to

the COURT OF APPEALS. In the COURT OF APPEALS, officer Bright

claimed that he had a "reasonable suspicion" that Northrup was engaged in

criminal activity based on two undisputed facts: (1) Northrup was visibly

carrying a gun in his holster, and (2) Bright was responding to a 911 call.

That reasonable suspicion, Bright claims, justified his disarmament,

detention, and citation of Northrup. Ultimately, Ohio law did not support

Bright's conclusion that he had witnessed a violation of law. The court made

the following statement on the issue:

"While the dispatcher and motorcyclist may not have known the details of Ohio's open-carry firearm law, the police officer had no basis for such uncertainty. If it is appropriate to presume that citizens know the parameters ofthe criminal laws, it is surely appropriate to expect the same of law enforcement officers—at least with regard to unambiguous statutes. Heien v. North Carolina, 135 S. Ct. 530, 540 (2014)."

Appellant's Brief Page 34 of 68 No. 05-15-00148-CR Unlike the Heien case, where the North Carolina statutes supported

Derasee's interpretation that he had witnessed a violation of law, the Ohio

law did not support Bright's interpretation that he had witnessed a violation

of law. In Appellant's case, the TC does not support Belcher's interpretation

of these provisions. TC Chapters 502 and 504 establish the requirements for

registration and license plates. Belcher's seizure of Appellant was

unreasonable because it was based on a mistake of law and not

particularized reasonable suspicion. Belcher knew nothing about Appellant

at the time of the seizure that supported her suspicion that she had witnessed

a violation of law. In Texas, there can be no warrantless arrest absent

statutory authority. State v. Steelman, 93 S.W.3d. 102, 107 (Tex.Crim.App.

2002). Defendant's rights protected by the Fourth Amendment, the Texas

Constitution, Art. I. §9, and C.Crim.Proc. Chapter 14 were violated as a

result of this warrantless seizure. Appellant challenged the reasonableness of

his seizure prior to trial on the merits (CR270-272). Belcher confirmed the

unreasonableness of the seizure when she testified regarding the reasons for

her action. This conviction should be reversed and the case dismissed.

Issue II. The trial JUDGE erred as matter of law, when she refused to

disqualify herself.

The COURT erred, as a matter of law, when the trial JUDGE refused to Appellant's Brief Page 35 of 68 No. 05-15-00148-CR - • «.J!S=s«

disqualify herself from hearing this case over Appellant's objections (CR_237-

251). In this TC case, JUDGE Mason sits as a "State judge" "of this state"

under TC §§521.001(8) & (8a)(A). A judge is merely an officer of the court,

not the court itself. "State" in the TC is a federal territorial "state." "State" is a

very important term in this code because it expresses the extent ofthe

territorial jurisdiction of this code. While the term "state" may commonly be

understood by the average Citizen to mean a state in the Union, the legislature

has provided a specific definition ofthis term in this code. TC §§521.001(8),

541.002(5), 601.002(11) and Gov.C §311.005(7) are examples of how the

legislature has chosen to define this term in these codes. "State" is not a state

in the Union, therefore a TC "State judge" is not exercising an office under the

Constitution of Texas, Art V.

"State" is not used in the TC and Gov.C. in the same since that "state"

is used in the Constitution of the United States of America. In the case of

Hepburn &Dundas v. Ellzy, 6 U.S. 445,452 (1805), the U.S. Supreme Court

answered the question whether a citizen ofthe District of Columbia could

maintain an action in the circuit court of the United States against a citizen of

the Commonwealth ofVirginia. The answer depended on the act of Congress

describing the jurisdiction ofthat court. That act gave jurisdiction to the

circuit courts in cases between a citizen of the state in which the suit is

Appellant's Brief Page 36 of 68 No. 05-15-00148-CR brought and a citizen of another state. Congress did not define state in the

act. To support the jurisdiction in such a case, therefore, it must appear that

Columbia is a state. The Supreme Court found the circuit court did not have

jurisdiction of the suit. The circuit court found that:

"On the part of the plaintiffs, it has been urged that Columbia is a distinct political society, and is therefore "a state" according to the definitions of writers on general law."

"This is true. But the act of Congress obviously uses the word "state" in reference to the term as used in the Constitution, it becomes necessary to inquire whether Columbia is a state in the sense of that instrument. The result of that examination is a conviction that the members of the American confederacy only are the states contemplated in the Constitution."

The circuit court found the District of Columbia is not a state in the

Union. In the instant case, the legislature defined the term "State." When the

legislature defines a term, it is presumed to say what it means and the courts

cannot add to or take away from that definition. In the instant case, the

legislature used the term "state" to define "state." This could easily confuse the

average Citizen if he were not aware that "state" is a general term within the

meaning of Gov.C. §312.002(b) and has a broad meaning that is restricted by

the following rule of construction.

"Where an enumeration of specific things is followed by some general word or phrase, such general word orphrase, under the ejusdem generis rule of construction, refers to things ofthe same kind as those specifically mentioned." Galveston, H. &HR. Co. Appellant's Brief Page 37 of 68 No. 05-15-00148-CR v. Anderson (Civ. App. 1921) 229 S.W. 998; Amplifone Corp. v. Cameron County (Civ. App. 1979) 577 S.W.2d. 567, 570.

Territories, possessions, districts, commonwealths and insular

possessions ofthe United States, the District of Columbia and the

Commonwealth of Puerto Rico are not states in the Union, butare defined by

the legislature as "states" in the TC and Gov.C. These expressed territories are

subject to the exclusive legislative authority of the United States under the

U.S. Constitution, Art. I. §8, cl. 17 and Art. IV, §3, cl. 2. These clauses of the

federal constitution provide for the territorial powers of the United States.

States in the Union, such as Texas are not subject to the exclusive jurisdiction

of the United States. UnitedStates v. Bevans, 16 U.S. (3 Wheat.) 338, 350-

351.(1818).

It is clear the legislature used the term "state," in these codes to

designate federal territorial "states." In a geographic sense, a federal "state" is

comprised of federal territory located within the exterior boundaries of Texas

that is subject to the exclusive jurisdiction ofthe United States.

Evidence of the federal territorial nature of these codes is also expressed

in the use of FRNs as the money of accounts of the courts. FRNs are not

lawful money for states in the Union when exercising their general powers.

This is instructive because FRNs are not "money" as the term money is used in

the U.S. Const., Art. I, §10, cl. 1. This clause expressly forbids states in the Appellant's Brief Page 38 of 68 No. 05-15-00148-CR Unionfrom making any thingbut gold and silver coin a tenderin payment of

debts. FRNs are neither gold nor silver coin and are not backed by gold or

silvercoin. Gold and silvercoin is the only lawful tender in Texas when she is

enforcing her general laws. Ogden v. Slade, 1 Tex. 13, 14 (1846). FRNs are

evidence of debt of the United States government acting in its proprietary

nature as a body corporate to the privately owned Federal Reserve Bank. 12

U.S.C. §411 (CR_242-243). When the federal government borrows FRNs

from the Federal Reserve Bank, it acts as any other corporate body in a

commercial transaction.

When the federal government makes a grant of federal funds to Texas to

enforce its territorial laws, the transaction is a private contract between two

Sovereigns acting as proprietary corporate bodies. State officials thus cannot

consent to the enlargement ofthe powers of Congress beyond those

enumerated in the Constitution. Indeed, the facts of this case raises the

possibility that powerful incentives might lead both federal and state officials to view departures from the federal structure to be in their personal interests. New York v. United States Et. AL., 505 U.S. 144, 182 (1992).

The COUNTY COURT is not acting as a dejure court of Texas,

enforcing its general laws in aTC case. "State judges" exercise afederal administrative jurisdiction of alocal authority (see TC §§541.002(3), applying

Appellant's Brief Page 39 of68 No. 05-15-00148-CR the territorial laws of a federal "state." TC §§541.002(2) & 521.001(8-a).

Since TC fees, fines and penalties are payable only in FRNs, the COUNTY

COURT must be acting as a federal territorial court. "State judges" under the

Gov.C. are exercising federal offices and are not qualified to hold offices in

the de jure government of Texas. Separation of powers between state and

federal governments prohibit holding office in both governments

simultaneously.

Ifthe COURT is purporting to act as a court of justice, exercising the

judicial power of Texas, FRNs as the money of accounts creates a defect in the

operation ofthe courts and they become de facto and not de jure. JUDGE

Mason, sitting as a "Statejudge" is a de facto judge, whose status was

challenged as such (CR_231-245, 264, 354-356), therefore the de facto officer

doctrine does not apply. Mason is not qualified to preside overa case

affecting appellant's private rights absent proof ofAppellant's consent.

When Appellant attempted to find out the nature ofthis proceedings and her status, Mason stated she was neither dejure nor de facto; shewas statutory

(RR_Vol._2, 6:20-9:14). Mason was correct when she said she was a statutory

judge. However, she is de facto because she pretends to be acting in aTC case as ajudge exercising the general judicial power ofTexas, as astate in the Union, when in fact she exercises federal territorial power.

Appellant's Brief Page 40 of 68 No. 05-15-00148-CR There was no allegation before the COUNTY COURT establishing the

nature of the relationship between Appellant and "State"that would make this

exercise of administrative jurisdiction, reasonable. Mason was notqualified to

preside over this case and any judgment entered by her is void and should be

reversed.

Issue III. The COURT erred as a matter of law in applying the TC as the

choice of law.

The COURT found that appellant was subject to the TC as the choice of

law in this case. Appellant expressly objected to this choice oflaw (CR264-

267,356-357) because the TC was adopted as aprivate or special law ofthe Texas legislature acting in its proprietary nature as acorporate body and a federal "state." Appellant has consistently pled in his verified pleadings that he was not a citizen, resident orinhabitant ofthe TC "State" (CR_259-260, 267- 268, 369,). Appellant pled that he had committed no act within the territorial jurisdiction ofthe TC nor was he engaged in any activity regulated by the TC (CR 268-270, 357-358). As aCitizen ofTexas, domiciled in Texas, appellant is subject only to the general laws ofhis domicile, absent ashowing ofhis voluntary consent. Appellant is not subject to the exclusive legislative jurisdiction ofthe United States. No proofofdefendant's voluntary consent to

ii *. r, • v Page 41 of 68 Appellant s Brief & No. 05-15-00148-CR be subjectto this code was entered into the record.

Appellee did not rebut by verified pleading, appellant's allegation of

appellee's status inthis TC case (CR_232-234, 259-260). Failure of appellees

to rebut the allegations of status and capacity by verified pleading is an

admission of the alleged facts and a waiver of any objection on appeal. See

Tex.R.Civ.Proc, Rule 93; Pledger v. Schoellkopf 762 S.W.2d. 145-146

(1988); Weatherly v. Martin, 754 S.W.2d. 790, 792-793 (1988); Sixth RMA Partners, L.P. v. Sibley, 111 S.W.3d. 47, 56 (Tex. 2003). Appellant is not a

citizen, resident or inhabitant ofthe TC state and did not consent to the

choice of law in this case. The COURT erred as a matter of law when it

applied this choice oflaw to appellant over his objections and without his consent. This error was harmful to appellant and should be reversed.

Issue IV. The TC "as applied" to appellant's private property and activities, violated the Texas Constitution. Art. III., §35.

When reviewing an attack upon the constitutionality of a statute, we

begin with the presumption that the statute is valid and the legislature has not acted unreasonably or arbitrarily. Luquis v. State, 72 S.W.3d 355, 365 n.26 (Tex. Crim. App. 2002); Exparte Ports, 21 S.W.3d 444, 446 (Tex. App.~San Antonio 2000, pet. refd). The party challenging the

ii *. o • f Page 42 of 68 Appellant s Brief 6 No. 05-15-00148-CR constitutionality of a statute bears the burden of establishing that it is

unconstitutional. Ports, 21 S.W.3d at 446. Due process requires criminal

laws to be defined so that (1) fair notice is given to ordinary persons as to

what conduct is forbidden; and (2) definite standards are established to

prevent arbitrary and discriminatory enforcement by police,judges, and

juries. Graynedv. City ofRockford, 408 U.S. 104, 108 (1972).

Appellanthas challenged and continues to challenge the

constitutionality of the TC, "as applied" to appellant (CR_289-290,362-363).

In this case the PROSECUTOR is attempting to apply provisions ofthe TC to

activity that is not expressed in the title of the act. This violates the Tex.

Const., Art. Ill §35. "Transportation" is the expressed subject matter of the

TC.4 This code cannot be applied to any activity outside the expressed subject

matter of "transportation." This charging instrument contains no specific

allegation that appellant was using his private property as a "device" in orby which a person orproperty may be transported or drawn on a public highway

ofaTC "state."

This application ofthe TC to appellant, over his objections and without

his consent, violates the Texas Constitution, Art. Ill, §35(a). This

constitutional mandate provides that bills contain only one subject which must

4Acts 1995, 74th Leg., Ch. 165, S.B. No. 971, 1995. "An act relating to the adoption ofa nonsubstantive revision ofthe statutes relating to transportation..." (emphasis added). Appellant's Brief Page 43 of 68 No. 05-15-00148-CR ^m^Wi$&S%&i&$9i%^^iv

be expressed in the title of the bill. Application of this bill to any activity other

than "transportation" is a violationof this provision of the Texas Constitution.

IssueV. Appellant committed no act withinthe territorial jurisdiction of

the TC.

The COUNTY COURT found that it had territorial jurisdiction over

the location of this transaction and that appellant had committed an act or

omission within the territorial jurisdiction of the TC. Appellant objected to the

exercise of territorialjurisdiction of the COUNTY COURT on numerous

grounds (CR_268-270, 357-358). The geographic territory that comprises the

territorial jurisdiction ofthe TC has been expressly defined by the legislature

in the term of art "state." The territories defined as "states" in the TC are

federal territories subject to the exclusive legislative jurisdiction ofthe United

States pursuant to U.S. Const., Art. I, §8, cl. 17 &Art. IV, §3, cl.2. The expressed territorial jurisdiction ofthe TC does not include territory under the exclusive jurisdiction ofstates in the Union, such as the Texas. The charging instrument in this case does not include an allegation that appellant committed

any act within the territorial jurisdiction of"state" (CR_11). Appellant has committed no acts within the territorial jurisdiction ofthis Code and there are

no reliable allegations or evidence to support a finding that he has. The

Appellant's Brief Page 44 of 68 No. 05-15-00148-CR COUNTY COURT, sitting as a federal territorial court, applying federal

territorial law, lacked territorialjurisdiction of the location of the transaction in

this case. Appellant's activities occurred in the city of Frisco, county of Collin,

state of Texas. This location is territory withinthe exclusive jurisdiction of

Texas. Absent an allegation and evidence that Appellant has consented to this

exercise of extra-territorial jurisdiction, there is no authority to do so.

Territorial jurisdiction ofthe location ofthe alleged offense is a prerequisite to

the exercise of jurisdiction and lack ofterritorial jurisdiction renders any

judgment entered therein absolutely void. This case should be reversed and

dismissed.

Issue VI. The COUNTY COURT lacked subject matter jurisdiction of this

case.

The COURT erred when it found that its subject matter jurisdiction had

been properly invoked in this case. Appellant objected to the subject matter

jurisdiction of the COURT prior to the trial on the merits (CR 283-285, 361-

362). Appellant is alleged to have operated a motor vehicle without

registration and license plates (CR 11). These allegations alone are insufficient

to invoke the subject matter jurisdiction of this COURT because it lacks many

necessary allegations.

Appellant's Brief Page 45 of 68 No. 05-15-00148-CR This case is predicated on the TC. "Transportation" is the subject matter

of this code. Appellant has consistently rebutted his participation in any such

activity. Failure to allege that appellant was engaged in the subject matter of

this case fails to invoke the subject matter jurisdiction ofthe COURT and the

only lawful action uponproper objection (CR 11), is amendment of the

charging instrument to include the required allegations or dismissal.

The charging instrument does not allege an act of interstate commerce;

that appellant was using his private property as a "device" totransport or draw

persons orproperty on a highway ina TC state; that appellant purchased a

vehicle in the 30 days prior to this transaction; orthat appellant is a "person"

or a "resident of this state." In order to invokethe jurisdiction of a court, the

charging instrument, when challenged, must allege all the essential elements of the offense. The issue of the necessity of a proper charging instrument was

addressed in the case ofExparte Cannon, 546 S.W.2d. 266, 269-270 (1976).

The court made the following statements in support of their decision:

"The indictment being fundamentally defective, and not alleging an offense against the laws ofTexas, same is insufficient to support a conviction, and therefore this conviction is void. See Standley v. State, supra; Exparte Roberts, supra..."

Because judicial action without jurisdiction is void, it cannot be waived and may be raised at any time. "Although most rights and procedural matters may be waived, jurisdictional matters may not be." Casias v. State, Tex.Cr.App., 503 S.W.2d 262. Appellant's Brief Page 46 of 68 No. 05-15-00148-CR When substantive challenges to the complaintare made before trial, this

holding is not waived. See Texas Const. Art. 5 §12.b; C.Crim.Proc. Art. 1.14.

When the People amended the Constitution of Texas regarding charging

instruments in 1985, it was their intent to prevent those convicted of crimes

from exposing for the first time on appeal the failure of a charging instrument

to allege an essential element of the crime. Code. Crim. Proc. Art. 1.14

requires that a defect in the substance orform ofa pleading must be objected to prior to a trial on the merits. Appellant has consistently challenged the

charging instrument inthis case (CR_283-285, 368-369). The DISTRICT ATTORNEY chose not to respond to appellant's challenges orto amend the

charging instrument to include any omitted facts. The face ofthe charging instrument inthis case alleges only naked legal conclusions rather than

specific facts regarding appellant or his property; the legal status ofeither; their relationship to the UNITED STATES or the STATE OF TEXAS/CITY OF FRISCO; how appellant or his property met the requirements ofthe law for registration of"vehicles" and displaying license plates; or how appellant was engaged in or using his private property for transportation purposes within a TC "state."

Appellant's Brief Page 47 of 68 No. 05-15-00148-CR tmf^^r.i^f^PflS^ -Sf**#^W-P1^*,^iK,-"-«

Issue VII. The COURT lacked personal jurisdiction of Appellant.

Appellant objected to personal jurisdiction in his motion to quash the

complaint (CR_267-268, 371-372). A challenge to personal jurisdiction of the

accused is a jurisdictional challenge and must be proven on the record before

the Court can proceed to the merits of the case. The COURT erred when it

found that appellant was a "person" as that term is defined in the TC. The

allegations in this charging instrument apply only to "persons" as defined in

the TC. hi Barber v. State, 191 S.W.2d. 879, 880 (1945), the Court of Criminal

Appeals found the offense charged applied only to licensees. Therefore the

complaint had to allege and prove that Barber was a licensee atthe time ofthis

transaction. In the instant case, the charging instrument had to allege and the

PROSECITOR had to prove with admissible evidence that appellant had the

status of "person" on the day of the alleged offense.

Ifappellant does not have the status "person," it is impossible for him to violate provisions ofthe TC. There was no allegation inthe charging instrument that appellant is a "person" (CR 11). There was no evidence

presented during the trial that appellant was a "person."

Appellant also challenged the service ofthe charging instrument in this case. Per Pennoyer v. Neff 95 U.S. 714 (1877), service ofprocess beyond the border of a state is of no authority. Service of this process was in the

Appellant's Brief Page 48 of 68 No. 05-15-00148-CR «£»<3!«Bl!^^W;^We»^*^*4..s*-^ ..

exclusive territory of Texas and beyond the borders of "State" as defined in

the TC. Service ofprocess outside the territorialjurisdiction of "State" cannot

confer personal jurisdiction over appellant without his expressed consent, see

International Shoe Co. v. Washington, 326 U.S. 310 (1985). Personal

jurisdiction is a necessary element ofjurisdiction for a court to issue a valid

judgment. A judgment issued without personal jurisdiction is void. The order

of conviction by the COUNTY COURT is void and should be reversed and

the case dismissed.

Issue VIII. The CLERK had no standing to act as affiant on a charging

instrument.

Standing is an essential element of subject matter jurisdiction and must

be proven when challenged. Appellant challenged the standing ofthe CLERK

of the CITY OF FRISCO MUNICIPAL COURT to bring this charge against

him (CR 282-283, 368-369). The CITY ATTORNEY or his deputy are the

only OFFICERS authorized to conduct prosecutions in the CITY OF FRISCO

MUNICIPAL COURT. See C.CrimProc, Art. 45.201. The CLERK of the

MUNICIPAL COURT is not an OFFICER in the CITY ATTORNEY'S office.

The duties of a CLERK, acting under the Gov.C, Chap. 30 do not include

acting as the affiant on a charging instrument charging a Citizen ofTexas with

Appellant's Brief Page 49 of 68 No. 05-15-00148-CR an offense.

C.Crim.Proc. Art. 45.019(e)(2) authorizes a complaint to be sworn

before a CLERK of the MUNUCIPAL COURT. A complaint sworn "before"

a CLERK is not the same as a complaint sworn to "by" a CLERK. There is no

expressed authorization in any Texas law for a CLERK of the CITY OF

FRISCO MUNICIPAL COURT to act as an agent ofthe CITY

ATTORNEY'S office and be the affiant on a charging instrument charging

appellant with the commission of an offense. Charging an offense is a

prosecutorial function. It is not a delegated duty of an OFFICER claiming to

be a CLERK. The CLERK is only competent to administer oaths made before

them by other competent OFFICERS in a TC case. If the CLERK acts as the

affiant, the CLERK is exercising a power delegated to the executive branch of

government. Ifthe CLERK is claiming an office within the judicial branch of

government, participation in a charging instrument as the affiant is a violation

ofthe separation of powers between the branches of state government, see

Tex. Const, Art. II, §1.

Appellant would also ague that the CLERK in this TC case is actually

exercising a Gov.C. office within a federal territorial state as part of a "local

authority." The Gov.C. is not a general law of the dejure government of

Texas. This is apparent bythe definition ofthe territorial jurisdiction ofthis

Appellant's Brief Page 50 of 68 No. 05-15-00148-CR code as defined by the term "state" in the TC and the Gov.C. These are special

or private laws of the Texas legislature acting in its proprietary nature as a

corporate body and a federal territorial state, see Texas Rules of Civil

Procedure, Rule 53. One who exercises a Gov.C. office is exercising an

executive office within the federal government. Exercise of this federal office

by one purporting to act as ajudicial office ofTexas violates the separation of powers between the governments ofTexas and the United States. See U.S.

Const., Arts. I, II and III; Const, of Texas, Art. II, §2; Younger v. Harris, 401

U.S. 37,44-45; Prince v. United States, 521 U.S. 898, 918-922 (1997).

Exercise ofthis federal office by one purporting to exercise an office within

the judicial branch ofgovernment also violates the separation ofpowers between the three branches of the federal government, see U.S. Const., Arts. I,

II and III.

Appellant would also argue that the charging instrument is not avalid charging instrument (CR_11) because it is attested to by acourt CLERK, who is not a member of thePROSECUTOR'S office. It is based on information

provided by Belcher's unverified report. While the charging instrument in this case is titled "complaint," it is in the nature ofan information, see

C.Crim.Proc. Art. 21.21.

Informations are valid, only when supported by the sworn affidavit ofa

Appellant's Brief Page 51 of 68 No. 05-15-00148-CR ^^^^mm^^f^^^^^^^mm^^^-

credible person. This alleged complaint is not supported by the swornaffidavit

of any credible person. The charging instrument filed in this case is not

sufficient to meet the constitutional requirements of an instrument used to

charge appellant with a crime and put in jeopardy his freedom and his

property. The COURT erred in finding that the CLERK had standing to bring

this charging instrument.

Issue IX. The charging instrument was insufficient to give appellant

constitutional notice of the cause and nature of the accusation

against him.

The record contains numerous express declarations establishing

appellant's status in this case. These declarations have not been rebutted by

verified pleading. Appellant made specific challenges to the sufficiency of

the constitutional notice given in the charging instrument in his motion to

quash the complaint (CR_278-283, 359-361). The Constitution of Texas,

Article I, §10 and the U.S. Const., Amendment VI., requires that a complaint

charging appellant with an offense give him adequate notice of the cause and

nature of the allegation on which to prepare a defense. The charging

instrument in this case fails to provide appellant with sufficient notice to know

upon what theory the PROSECUTOR would rely for conviction (CR_11).

Appellant's Brief Page 52 of 68 No. 05-15-00148-CR -..fef»HE'j!fcA¥iK(W^.*^)^«8¥**WAt«9t>'»

As argued in Issue I, TC §502.040 is the sectionthat establishes the

requirements for registration. TC §502.473 and 504.943 are the sections that

define the alleged offenses. The complaint fails to allege that appellant had

purchased a "vehicle" less than 30 days prior to this transaction or that

appellant is a "resident of this state." The charging instrument failed to allege

why Appellant was required to register and display license plates. The

charging instrument and these TC sections, use terms of art that are statutorily

defined such as "person," "operator," "vehicle," "motor vehicle," "drive,"

"state," "resident," and "public highway." Many ofthese terms are defined by

statute inthe TC using multiple other terms that are defined by statute. These

multiple definitions create multiple theories upon which appellant might be

convicted.

With so many different combinations oftheories the PROSECUTOR

could attempt to prove for purposes ofconviction, it is impossible for appellant to know upon what theory the PROSECUTOR would rely and therefore impossible for Appellant to prepare a defense. Appellant is not required to anticipate any and all variant facts the state might hypothetically seek to establish. While the charging instrument follows the language inthe

statute, this is not sufficient when the statue contains multiple ways to

violate the provision.

Appellant's Brief Page 53 of 68 No. 05-15-00148-CR The charging instrument is also insufficient to bar future charges arising

from the same transaction. When appellant petitions for sufficient notice of

the state's charge by motion to quash adequately setting out the manner in

which notice is deficient, the presumption of innocence coupled with his

right to notice requires that he be given such notice. Drumm v. State, 560

S.W.2d 944, 946-947 (1977).

Appellant was entitled to such notice and his motion to quash was

sufficient to point out his need. The COURT erred as a matter of law and

abused its discretion when it refused to issue findings and conclusions and

denied appellant's motion to quash. The COURT erred and appellant was

harmed by the error. This verdict in this case should be reversed and the case

Issue X. The COURT erred as a matter of law in finding the charging

instrument substantively sufficient to allege an offense.

Defendant objected to and continues his objections to substantive

defects in the charging instruments filed against him. (CR285-287, 361-362). The Court ofCriminal Appeals addressed the issue ofthe necessity of

alleging the essential elements ofan offense in the case of George v. State, 145 S.W.2d 187, 188 (1940), the Court ofCriminal Appeals addressed the subject

Appellant's Brief Page 54 of 68 No. 05-15-00148-CR ofthe sufficiency of a charging instrument alleging registration violations. The

court stated:

"It is our opinion that the above allegation is not sufficient to apprise appellant in what way he had failed to follow the requirements of the law relative to the registration of the automobile that he was operating on such highway. There is more than one article of the statute governing the proper registration of motor vehicles, and the complaint as herein presented might include a violation of any one of such articles as a basis of this prosecution. Appellant is entitled to have the complaint apprise him in no uncertain terms of the specific requirement of the law that he had failed to comply with, and if necessary, prepare a defense, if possible or desired..."

"It is not always sufficient to follow the language of the statute. There are cases that require greater particularity, either from the obvious intention of the Legislature or from the application of known principles of law,.."

There is no allegation that appellant was "a resident of this state" or had

purchased a vehicle in the 30 days prior to this transaction. There is no

allegation appellant is a "person" as defined by the code. There is no allegation

of specifically how appellant's private property was being "used" as a

"device" to transport or draw persons or property as defined in the TC. There

is no allegation that appellant committed an act withinthe territorial

jurisdiction of "State." If the charging instrument fails to allege an offense

against the laws of Texas, see Tex. Const. Art. V, §12(b)6, it is subject to

Appellant's Brief Page 55 of 68 No. 05-15-00148-CR exception by a motion to quash. Appellant objected to these defects prior to

trail (CR 285-287).

Because judicial action without jurisdiction is void, it cannot be

waived and may be raised at any time by direct or collateral attack. Although

most rights and procedural matters may be waived, jurisdictional matters

may not. A judgment which is void, is conclusive of nothing, and may be

subject to inquiry in a collateral proceeding. Exparte Duncan, 42 Tex.Cr.R.

661, 62 S.W. 758; Exparte Cannon, 546 S.W.2d. 266; Castas v. State,

Tex.Cr.App., 503 S.W.2d. 262, 263 (1973). see CCP Art. 27.08. To warrant a

conviction, an action or omissionmust be plainly and unmistakably within the

definition ofthe statue, within both the letter and the spirit of the law, and if

there is any doubt whether the statute embraces it, that doubt must be resolved

in favor of the accused, see Thomas v. State, 919 S.W.2d. 427, 430. Belcher

testified that Appellant's property was not registered as a motor vehicle at the

time of this stop. Only persons who apply for registration are issued license

plates and are required to display them under TC §504.010. The COURT

erred as a mater of law and abused its discretion when it found the charging

instrument sufficient to allege an offense. The judgment in this case should

be reversed and dismissed.

Appellant's Brief Page 56 of 68 No. 05-15-00148-CR Issue XL The TC "as applied" to appellant violated U.S. Constitution,

Sixth Amendment.

Application of the TC to appellant's private property and activities is

unconstitutional as a violation of the Sixth Amendment to the federal

constitution (CR_365-366). The Sixth Amendment guarantees to every Citizen

of the Union in a criminal prosecution, the rightto a "speedy and public trial,

by an impartial jury ofthe State and district wherein the crime shall have been

committed..." The term "State" as used in the TC, means only territories and

possessions ofthe United States, not states inthe Union. The record shows that

the activities, which are the subject of this transaction, occurred within the

exclusive territory ofthe Union state ofTexas, city ofFRISCO, county of

Collin.

This transaction did not occur within the territory of "State" as defined

in the TC. The COUNTY COURT enforcing this code is not sitting as a

general jurisdiction court ofthe de jure government ofTexas, acting as a state inthe Union enforcing its general laws. The COUNTY COURT ina TC case is sitting as an administrative court enforcing federal territorial law. Appellant's trial and conviction in this administrative court acting under federal authority is not atrial in the "state and district wherein the crime shall have been committed" pursuant to the Sixth Amendment to the federal

Appellant's Brief Page 57 of 68 No. 05-15-00148-CR constitution. A trial before this administrative court, applying federal territorial

law is a violation of the Sixth Amendment to the federal constitution. This

case should be reversed and dismissed.

Issue XII. The Subject Matter of the TC is unconstitutionally vague.

It is a basic principle of due process that a statute is void for

vagueness if its prohibitions are not clearly defined, see Papachristou v. City

ofJacksonville, 405 U.S. 156, 165 (1972); State v. Holcombe, 187 S.W.3d

496, 499 (Tex. Crim. App. 2006), cert, denied, 127 S.Ct. 176 (2006). When

reviewing an attack upon the constitutionality of a statute, we begin withthe

presumption that the statute is valid and the legislature has not acted

unreasonably or arbitrarily, see Luquis v. State, supra; Exparte Ports, supra;

Papachristou v. City ofJacksonville, supra; State v. Holcombe, supra;

Graynedv. City ofRockford, supra. A vague law impermissibly delegates

basic policy matters to policemen, judges and juries. See Groyned v. City of

Rockford, supra.

Appellant challenged the constitutionality ofthe TC "as applied" to his private travel in his motion to quash the complaint because the subject matter "transportation" is vague (CR_295-297, 364-365). Appellant argued that the PROSECUTOR and the COUNTY COURT improperly interpreted and

Appellant's Brief Page 58 of 68 No. 05-15-00148-CR applied the TC to appellant's private property when said property was being used for purely private activity. Applying the TC to activity not expressed in

the subject ofthe bill violates the Texas Constitution, Art. 3, § 35. The COUNTY COURT and STATE OF TEXAS have refused to take judicial

notice ofthe definitions of"transportation" and "travel" provided by appellant

(CRJ07-312). The COUNTY COURT and STATE OF TEXAS have refused to provide any definition for "transportation" as used to define the subject matter in the enacting clause ofthe TC. Appellant's interpretation ofthese terms was obtained from established dictionaries, both lay and legal that are

not subject to dispute. The subject matter ofalaw must be clear and definite if it is intended to regulate the activities ofthe sovereign People ofTexas.

IfaCitizen ofaverage intelligence cannot definitely know what activity is being regulated, the law is vague and therefore void for vagueness. See Winter v. People ofState ofNew York, 333 U.S. 507, 517-520 (1948). The notion that the law is definite and knowable sits at the foundation ofour legal system. See Cheek v. United States, 498 U.S. 192,199 (1991). To warrant a conviction, an action or omission must be plainly and unmistakably within the definition ofthe statue, within both the letter and the spirit ofthe law, and if there is any doubt whether the statute embraces it, that doubt must be resolved in favor ofthe accused, see Thomas v. State, 919 S.W.2d. 427,430. If A „ „ D•f Page 59 of 68 Appellant's Brief 6 No. 05-15-00148-CR appellant's request for notice of the definition of transportation does not

accurately define the subject matter of the TC, and the COURT adopts some

other undisclosed or unknown definition, the subject matter of the TC "as

applied" to appellant is ambiguous and therefore void for vagueness. If a

criminal statute is so indeterminate that "men of common intelligence must

necessarily guess at its meaning," the law is constitutionally void for

vagueness. UnitedStates v. Lanier, 520 U.S. 259, 266 (1997) (quoting

Connallyv. Gen. Constr. Co., 269 U.S. 385, 391 (1926)).

Issue XIII. Belcher's testimony should have been limited.

Appellant made pretrial motion to limit BELCHER's testimony when

using certain technical and statutory terms as either a lay or expert witnesses

under Rule of Evidence 701, 702 and 704 (CR_303-307). Appellant first

wanted an offerof proofthat Belcher knew and understood the definitions of

the words she was using to describe appellant's activities and his property. The

COUNTY COURT refused to hear Appellant's motionbecause it should have

been titled a motion in limine. It was error for the COUNTY COURT not to

treat Appellant's motion inthe nature ofthe motion and not based onits title.

State v. Evans, 843 S.W.2d 576 (Tex.Cr.App. 1992). The motion should have

been decided on its merits. Such a hearing would have limited the testimony of

Belcher when she used statutory and technical terms without proofin the Appellant's Brief Page 60 of 68 No. 05-15-00148-CR record that she knew and understood the meanings of the terms she was using.

The testimony should have been limited or excluded after proper and timely

objections under Rules of Evidence 701, 702, 704 and 705. A lay witnesses'

testimony was found to be inadmissible in the case of Lum v. State, 903

S.W.2d. 365, 370 (Tex. App. - Texarkana 1995, pet. Ref d) lay witness not

shown to be familiar with legal definition of negligence; An expert witness

was erroneously allowed to testify in the case of E-Z Mart Stores, Inc. v.

Terry, 794 S.W.2d. 63, 64-65 (Tex.App. - Texarkana 1990, writ denied) expert testimony that defendant was negligent was erroneously admitted because legal definition ofnegligence was not explained to witness and he did not demonstrate knowledge of its meaning. Other cases on this point are

Louder v. De Leon, 754 S.W.2d 148, 149; Fairow v. State, 943 S.W.2d 895,

900; Harvey v. Culpeper, 801 S.W.2d 596, 600-01 (Tex.App.-Corpus Christi

1990, no writ).

These cases establish a standard for the admission of expert or lay

testimony. Any witness testifying under Tex. Rule ofEvidence 701 or 702 must demonstrate that the witness knows and understands the legal

definition of terms she uses during her testimony. It was harmful error not to

hear and consider this motion.

Appellant's Brief Page 61 of 68 No. 05-15-00148-CR Issue XIV. The CLERK's affidavit is defective as a charging instrument.

Appellant challenges the affidavit of the CLERK of the CITY OF

FRISCO MUNICIPAL COURT as defective (CR_272-273, 275-78, 370-371).

The CLERK is attesting to alleged facts that are based on information

provided in a report that is not verified.

The CLERK is not a proper officer to act as affiant in a criminal

prosecution. The charging instrument is labeled a "complaint," but it is

actually in the nature of an "information." The allegation is based on

information provided by some credible person. There is no provision in

C.Crim.Proc. Art. 45 that authorizes a charging instrument based on

information provided by some credible person. However, Art. 45.002 states in

part:

".. .If this chapter does notprovide a rule of procedure governing any aspect of a case, the justice orjudge shall apply the other general provisions ofthis code to the extent necessary to achieve the objectives ofthis chapter."

This charging instrument should be held to the standards of an

"information" under C.Crim.Proc. Arts. 21.20, 21.21 and 21.22. An

information shall not be presented until affidavit has been made by some

credible person charging the appellant with an offense. The affidavit must be filed with the information. No such affidavit was filed with this charging

instrument. It is therefore defective and should have been quashed. Appellant's Brief Page 62 of 68 No. 05-15-00148-CR Issue XV. Belcher's unsworn report cannot support an information.

Belcher's unsworn report serves as the basis for allegations made in the

charging instrument (CR_277-278, 370). The CLERK's affidavit is in the

nature of an information under C.Crim.Proc. Arts. 21.20,21.21 and 21.22.

Belcher's unverified report should be viewed as a complaint in support of the

information made by the CLERK. Belcher's unsworn report is insufficient to

support an information. The COURT erred as a matter of law when it found

that BELCHER's report was reliable and sufficient to support a charging

Issue XVI. Appellant's request for judicial notice of adjudicative facts

should have been granted.

Under Texas Rule of Evidence 201(b), a court may take judicial notice

of facts that are not subject to reasonable dispute if the facts are either(1)

notorious, that is, generally known within the territorial jurisdiction ofthe trial

court, or (2) verifiable, that is, capable of accurate and ready determination by

resorting to sources whose accuracy cannot reasonably be questioned. In re J.L., 163 S.W.3d 79, 85 (Tex. 2005); see Office ofPub. Util. Counsel v. Pub.

Util. Comm 'n, 878 S.W.2d. 598, 600 (Tex. 1994). An explicit definition of

Appellant's Brief Page 63 of 68 No. 05-15-00148-CR PietfiiS**Wp^SMtWKsSfSrt^VSW %*

"transportation" is essential to a lawful interpretation and application of this

code. An unambiguous definition is also necessary to give Citizens of Texas

proper notice of what activity is subject to regulation and control by this code.

see Tex. Const., Art. Ill, §35. Appellant filed a request for judicial notice of

the definition of the term "transportation" (CR_308-313, 374-375). The

PROSECUTOR failed to file a response to the requested notice and offered no

interpretation at the hearing. The COURT denied the motion and did not state

exactly what activity is the subject of regulation by this code (CR338).

Appellant provided a definition from sources whose accuracy cannot be

reasonably questioned. It was harmful error for the COUNTY COURT not to

notice the requested definition and provide a lawful interpretation expressing

the subject matter of this code.

Issue XVII. The COURT erred as a matter of law and abused its discretion

when it refused to strike the testimony of BELCHER.

Appellant made a motion to strike all testimony of Belcher, where she

used statutory terms to describe appellant's activities at the close of the

PROSECUTOR'S presentation of evidence. Belcher testimony is conclusive

evidence that she doesn't understand the meanings of statutory terms she used

to describe Appellant and his property and activities. The law does not

Appellant's Brief Page 64 of 68 No. 05-15-00148-CR :t--^'**ww^W9»^sfc'

support Belcher's interpretation of the relevant TC sections. Her testimony

was unreliable and therefore inadmissible because not relevant or helpful to

the trier of fact. seeLum v. State, supra; E-ZMart Stores, Inc. v. Terry, supra;

Louder v. De Leon, supra; Fairow v. State, supra. At the conclusion ofthe

presentation of evidence by the PROSECUTOR, Appellant renewed his

objections by moving the COURT to strike Belcher's testimony where she

used terms that were defined by statute (RR_Vol._3, 80:8-81:17) (CR373-

374). The COURT denied the motion. The testimony should not have been

admitted in the first instance and should have been stricken from the record

on timely motion of appellant. The COURT erred as a matter of law and

abused its discretion when the motion to strike was denied after timely

objection. The error was harmful to Appellant and should not have been

considered.

Issue XVIII. The COURT erred as a matter of law when it found the evidence

sufficient to support conviction.

Appellant challenged the sufficiency of the evidence in his motion for

new trial (CR375-376). There was no reliable evidence that prior to seizing

Appellant, Belcher was in possession ofreliable information that Appellant was required to register his private property as a vehicle and display license

Appellant's Brief Page 65 of 68 No. 05-15-00148-CR --#>*.B*4s»a*^ssj(fi**

plates on it; that appellant was engaged in "transportation" on a "public

highway;" that Appellant has the status of "person;" that Appellant committed

any act or omission within the territorial jurisdiction of "State;" or that

Appellant committed an offence against the laws of Texas. BELCHER's

testimony shows that prior to seizing appellant, she knew nothing about

Appellant. There was no reliable evidence the TC is a general law of Texas

that applies to Appellant as a Citizen of Texas.

Belcher's testimony, in which she used terms that were defined by

statute, should not have been admitted after timely and proper objection by

appellant. All testimony of Belcher, in which she used terms that were defined

by statute, was not reliable and should have been stricken from the record after

timely motion to strike by appellant(RR_Vol._80:8-81:17). Even with the

admission of Belcher's testimony, the evidence presented was insufficient to

support conviction. No offense against the laws of Texas was alleged; and

Belcher's testimony was not credible and was insufficientto support

conviction.

Appellant's Brief Page 66 of 68 No. 05-15-00148-CR CONCLUSION

The record on appeal shows the COUNTY COURT did not apply a

correct interpretation ofthe TC to the facts in convicting Appellant. The

COUNTY COURT committed numerous fundamental errors and abuses of

discretion in pretrial motions, during the trial and post trial motions. Because

this appeal challenges the interpretation and application of the TC to the facts

of this case, Appellant has provided a complete record to the Court of Appeals

and seeks a de novo review. These errors and abuses were harmful to appellant

and this conviction should be reversed and dismissed.

PRAYER

Wherefore, appellant prays that the Court of Appeals, will reverse the

conviction of the trial COURT and dismiss the charge against him.

Respectfully submitted,

Robert Earl Man Sui Juris, a natural person All rights reserved without prejudice 9720 Coit Road #220-116 Piano, Texas Tel. 214-868-8698

Appellant's Brief Page 67 of 68 No. 05-15-00148-CR CERTIFICATE OF COMPLIANCE

1. This brief complies with the type-volume limitations on Tex. R. App. P. 9.4(i)(2)(B) because it contains 14,723 words, excluding parts of the brief exempted by Tex. R. App. P. 9.4(i)(l).

2. This brief complies with the typeface requirements of Tex. R. App. P. 9.4(e) because it has been prepared in a proportionally spaced typeface using Microsoft Word for Mac version 14, in 14 point Times New Roman font with 12 point for footnotes.

Robert E.

CERTIFICTE OF SERVICE

This is to certify, pursuant to Tex. R. App. P 9.5, on this the 9th day of January, 2015, a true and correct copy of the above and foregoing instrument was served upon appellee's counsel of record at the below listed addresses using the following methods.

Personal Delivery

COLLIN COUNTY DISTRICT ATTORNEY 2100 Bloomdale Road McKinney, Texas 75071

Ropert E. Marzett

Appellant's Brief Page 68 of 68 No. 05-15-00148-CR