No CR. In The COURT OF APPEALS FIFTH DISTRICT OF TEXAS AT DALLAS

Transcription

1 No Oral Argument Requested No CR In The COURT OF APPEALS FIFTH DISTRICT OF TEXAS AT DALLAS BOBBY LOUIS COLLARD, Defendant - Appellant, v. STATE OF TEXAS, Plaintiff - Appellee. (Deadline of 22 June 2010 set by Scheduling Order of 19 May 2010) On pre-trial appeal of denial of pre-trial Habeas by the transferee court COUNTY CRIMINAL COURT NO. 6 in DALLAS COUNTY Habeas Case No. MC10-A3476-G (Underlying Case No. MB G) APPELLANT S BRIEF BOBBY COLLARD 1615 UNIVERSITY DRIVE RICHARDSON, TEXAS 75081

2 Identity of Parties and Counsel Appellant BOBBY LOUIS COLLARD 1615 University Drive Richardson, TX Appellee STATE OF TEXAS CRAIG WATKINS Dallas County DA 133 N. Riverfront Blvd., LB 19 Dallas, TX Since this matter involves Statutory Challenges, the following is also Notified via service of this Brief. Hon. GREG ABBOTT Attorney General STATE OF TEXAS P.O. Box Austin, TX Appellant s Brief, with Appendix (Collard) ii

3 Table of Contents Identity of Parties and Counsel...ii Index of Authorities... v Statement of the Case...vii Record References...vii Nature of the underlying Non-Case... vii Course of Proceedings, including habeas...viii Trial Court s Disposition Habeas... ix Issues Presented (Again)... x Statement of Facts... 1 Statement of the Case included... 1 Record References... 1 The 21 April 2010 Transcript The Clerk s Record Let s talk brass tacks for a moment... 2 Collard does not consent to compelled choice of law... 2 No Notice... 2 No Standing... 3 Summary of the Argument... 7 Reasons for pre-trial habeas... 7 No Notice... 7 Facially invalid statute... 7 No Standing... 7 Argument... 8 Point 1: Does the trial court have subject matter jurisdiction?... 8 Overview... 8 No commercial nexus... 8 Here s the statute rumored to be relevant STATE s two condition-precedent presumptions are false Appellant s Brief, with Appendix (Collard) iii

4 CAPACITY/Capacity... 9 Choice of Law... 9 STATE lacks standing; hence, trial court lacks subject matter jurisdiction STATE confesses, by its silence, that there is no commercial nexus Point 2: Does the trial court have personal jurisdiction? Notice The have to question Notice The when question STATE is now too late Why this goes beyond mere personal jurisdiction analysis STATUTORY CHALLENGE Point 3: Does Art violate Due Process? The statute Common Sense The Law called Due Process Request for Relief Certificate of Service Appendix TOC Appellant s Brief, with Appendix (Collard) iv

5 Index of Authorities Cases Armstrong v. Manzo, 380 U.S. 545 (1965) , 14 Arnold v. United States, 544 U.S (May 31, 2005) Austin v. New Hampshire, 420 U.S. 656, 668 (1975) (Blackmun, J., dissent). 15, 16 Bates v. State Bar of Arizona, 433 U.S. 350 (1977) , 12 Boddie v. Connecticut, 401 U.S. 371 (1971) Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985)... 11, 12 Collard v. State, No (Tex. 12 Mar 2010) (unpublished)...vii, viii, ix, 3, 4 Connecticut v. Johnson, 460 U.S. 73 (1983) Deposit Guaranty Nat l Bank v. Roper, 445 U.S. 326, 344 (1980) (Powell, J., and Stewart, J., dissent) Escobedo v. Illinois, 378 U.S. 478 (1964) Ex Parte C.S. Smith, 185 S.W.3d 887 (Tex. Crim. App. 2006)... 7 Ex Parte J.C. Smith, 178 S.W.3d 797 (Tex. Crim. App. 2005) Fuentes v. Shevin, 407 U.S. 67 (1972) Gonzalez v. United States, 128 S. Ct (12 May 2008) Hamdi v. Rumsfeld, 542 U.S. 507 (2004) Harris v. Hardeman, 55 U.S. (14 How.) 334 (1852) In re Winship, 397 U.S. 358 (1970) Internat l Shoe Co. v. Washington, 326 U.S. 310 (1945) (opinion by Black, J.) Jones v. Flowers, 547 U.S. 220 (2006) Lloyd v. Alexander, 5 U.S. (1 Cranch) 365 (1803) Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) Milliken v. Meyer, 311 U.S. 457 (1941) Miranda v. Arizona, 384 U.S. 436 (1966) Mullane v. Cent. Hanover Trust Co., 339 U.S. 306 (1950) Mullaney v. Wilbur, 421 U.S. 684 (1975) N. Ga. Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601 (1975) Ogden v. Saunders, 25 U.S. (12 Wheat.) 213 (1827) Ohralik v. Ohio State Bar Assn., 436 U.S. 447 (1978)... 11, 12 Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80 (1988) Rockwell Int l Corp. v. United States, 549 U.S. 457 (2007) Rothgery v. Gillespie County, 128 S. Ct (2008) Smith v. O'Grady, 312 U.S. 329 (1941)... 13, 17 Sniadach v. Family Finance Corp., 395 U.S. 337 (1969) Tex. Dept. of Parks & Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004)... 9, 10 Tex. Dept. of Trans. v. City of Sunset Valley, 146 S.W.3d 647 (Tex. 2004).... 9, 10 Appellant s Brief, with Appendix (Collard) v

6 United States v. Booker, 543 U.S. 220 (2005) United States v. United Mine Workers of America, 330 U.S. 258 (1947)... 10, 16 Williams v. Vermont, 472 U.S. 14, 28 (1985) (dissent) Statutes TEX. PENAL CODE ANN (West 2009)... 6, 10 TEX. PENAL CODE ANN (West 2009)... vii, 4, 8 TEX. PENAL CODE ANN (a) (West 2009) Rules of Criminal Procedure TEX. CRIM. PROC. CODE ANN. art (West 2009) ( Art.. ) Art , 3, 7, 17 Art (b) Rules of Civil Procedure FED. R. CIV. P. 8(c) TEX. R. CIV. P TEX. R. CIV. P Rules of Appellate Procedure TEX. R. APP. P. 56.1(b) Appellant s Brief, with Appendix (Collard) vi

7 Statement of the Case Record References For habeas, there is one Transcript, namely of 21 April 2010, consisting of 13 pages. The case in the Supreme Court of Texas testified to (p.7 top, pp.9-10) is No A copy of that ruling is included in the Appendix. The Clerk s Record should include both the habeas Record and the Record in the underlying case. The key item in the habeas Record is the Bond. In the underlying Record, key is the absence of any proof of Service. Nature of the underlying Non-Case CIVIL. All non-cases are civil. Rumor has it that there s something about PENAL CODE at issue here. If that rumor, still unconfirmed, were true, that statute requires STATE to prove up a commercial nexus, and no such nexus exists, here. Why not? Because Collard neither (A) animated the FEDERAL CAPACITY nor (B) agreed to the choice of law of the place called this state at any time relevant to the charge. Collard is flat out not liable in the capacity charged. For the trial court to continue to claim jurisdiction is for the trial court to presume STATE s standing, which reverses the burden. STATE has no standing; hence, no subject matter jurisdiction; hence, a non-case. Moreover, the trial court is presuming personal jurisdiction, as well, again reversing the burden, and, again, against the great weight of evidence. This is a Appellant s Brief, with Appendix (Collard) vii

8 no evidence point. Since there have been several rulings/proceedings, and since the Record is devoid of any proof of Service, the trial court also lacks personal jurisdiction; hence, a non-case, thus CIVIL, for all purposes. Any of these reasons individually, much less collectively, adequately explains and justifies STATE s Supreme Court s ruling in No For that Court to deny a petition is for them to broadcast to the world that the matter is civil in nature. Course of Proceedings, including habeas The discussion on which the rumored charge is based never occurred within this state. Collard never animated the FEDERAL CAPACITY. Collard never agreed to any choice of law, and certainly not the choice of law of this state. Arrest, and etc. Pre-trial Bond. Arraignment date set. Collard had heart surgery at or near the time of the initial appearance date. The originally assigned court, both judge and staff, abused Collard viciously, including refusing to file documents, compelling him to retain counsel, compelling him to be physically present when he humanly could not be physically present, and even initiating extortionate Bond revocation proceedings, despite Collard s having Appellant s Brief, with Appendix (Collard) viii

9 kept the court fully informed of the matter while Collard was in and out of the hospital with his heart surgery and related treatment. County Criminal Court No. 3 very wisely transferred this case to another court. County Criminal Court No. 6 is the transferee court. Collard then basically started again from the top. At the top is Collard s Special Appearance and Motion to Dismiss, as well as Collard s Motion to Show Authority. Collard gave Notice to the transferee court regarding what motions were pending and in need of ruling. The trial court set a hearing date, and Collard gave Notice to STATE. STATE submitted no response and tendered no evidence. At the hearing on 14 September 2009, the trial court denied Collard s Special Appearance and motion to dismiss. Six proceedings ago, that appeal was dismissed to promote the judicial resources savings device of noting the absence of a written order where the viva voce order of Record was clear and regarding which content STATE never objected. Collard sought review in the Court of Criminal Appeals and in STATE s Supreme Court. Key, the Supreme Court denied relief, solidly declaring the civil nature of the matter. The CCA s refused ruling is 100% consistent with their jurisdictional limit, also. Based on the ruling in No , Collard sought pre-trial habeas. At least this time he was allowed to testify, sort of. Pre-trial habeas denied. Trial Court s Disposition Habeas The trial court denied Collard s application for habeas. Appellant s Brief, with Appendix (Collard) ix

10 Issues Presented (Again) Point 1: Does the trial court have subject matter jurisdiction? Tex. Dept. of Trans. v. City of Sunset Valley, 146 S.W.3d 647 (Tex. 2004). Cf. United States v. Lopez, 514 U.S. 549 (1995). Point 2: Does the trial court have personal jurisdiction? Smith v. O'Grady, 312 U.S. 329 (1941). Rothgery v. Gillespie County, 128 S. Ct (2008). STATUTORY CHALLENGE Point 3: Does Art violate Due Process? TEX. CRIM. PROC. CODE ANN. art (2009). Smith v. O'Grady, 312 U.S. 329 (1941). Appellant s Brief, with Appendix (Collard) x

11 Statement of Facts Statement of the Case included Collard incorporates the Statement of the Case section within this Statement of Facts section. Record References The 21 April 2010 Transcript. Restraint by Bond: pp.4-5. No proof of Service in the Record: pp.5-6. Statutory Challenge: pp.5-6. See Art No commercial nexus: pp.7 (top). There s also the 14 September 2009 Transcript, the references to which specifically mention the date. The Clerk s Record. Collard s Verified Application for Habeas. Bond. p.2. Civil nature of the entire matter. p.2. No Notice, and Statutory Challenge. pp.3-4. Direct connection between lack of personal jurisdiction and lack of subject matter jurisdiction. pp.4-5. Appellant s Brief, with Appendix (Collard) 1

12 No commercial nexus. pp.5-6. Resulting lack of subject matter jurisdiction. pp.7-9. The Bond paperwork. No proof of Service. No proof of any agency authority. The written order denying habeas. See Appendix. Collard s Special Appearance and Motion to Dismiss. Let s talk brass tacks for a moment See Collard s Brief in Collard does not consent to compelled choice of law If the funny money scam bites the dust during the pendency of this matter, Collard does not consent to any new choice of law associated with any new or different funny money system, by whatever name that new system may operate. No Notice This case was scheduled for arraignment on 14 January The Special Appearance and Motion to Dismiss was filed on or about 9 January As of that filing, there was no Notice. It is now June, Between both trial courts, there have been at least three substantive, material proceedings with rulings and yet the Record still has no Return of Service on Collard of any type, kind, or nature. Appellant s Brief, with Appendix (Collard) 2

13 There s a reason for that. There s an outrageous statute still on the books that purports to negate STATE s burden to give Notice. See Art Tr. pp.5-6. No judge is a process server. No prosecutor is a process server. No clerk is a process server. There has been no meaningful Notice. Given the number of rulings/proceedings already, it follows that STATE can never cure the lack of meaningful Notice. There being no Notice, thus no personal jurisdiction, the matter is a non-case; hence, CIVIL. Cf. No This trial court has limited criminal case only jurisdiction. Thus, this trial court has no jurisdiction over non-cases. This is how the lack of personal jurisdiction becomes the lack of subject matter jurisdiction, which then becomes the lack of immunity. 1 It is also in this context that Collard challenges Art , which purports to allow STATE to skip the Notice step. STATE has fully complied with and enjoyed its no Notice policy, as is self-evident in this Record. No Standing See No ( denied, which is greatly and materially to be distinguished from dismissed for want of jurisdiction; TEX. R. APP. P. 56.1(b)). 1 In the face of which reality, this court in 1120 opted to find no written order instead of no objection by STATE to the order given viva voce, in open court, on the Record. Collard still questions the preference of form over substance, there. It s inconceivable that the appellate bench despises the trial bench that much. Appellant s Brief, with Appendix (Collard) 3

14 See also the Transcript of 14 September 2009, generally, and pp.5 (line 16) to 6 (line 22), and pp. 10 (line 21) to 11 (line 13), in particular. See also Tr. pp.7 (no commercial nexus). See also the Record as a whole. Based on the rumor that PENAL CODE is worth our time to discuss, there is no sexual conduct at issue in this case. So, that leaves an offer, an agreement, or a solicitation. Collard has challenged STATE s standing from the beginning, and STATE has provided no evidence of any actual grievance. STATE provided no evidence of any offer, any agreement, or any solicitation; no evidence last September, regarding the Special Appearance, and a repeat performance of silence in the habeas proceeding. Procedurally, standing is something that is subject to determination upon trial. But, then, that s the very focus of Collard s challenge. Where STATE has no evidence, may STATE compel a trial by going silent in response to that direct, pre-trial challenge? Obviously not! See No There are various analogies, and discovery may be the closest. Collard has effectively demanded discovery on STATE s evidence regarding that element (those elements), and STATE has gone completely silent, at least twice, now. Since this Record contains no evidence of any offer, agreement, or Appellant s Brief, with Appendix (Collard) 4

15 solicitation, it follows that STATE has no actual grievance. Since trial court finds subject matter jurisdiction, i.e., standing, where STATE is completely silent on the point, the trial court has already relieved STATE of its burden. Additionally, even if those facts were not being presumed satisfied already, it s legally impossible for STATE ever to prove them. Capacity and choice of law are matters completely within Collard s unilateral control, and STATE has no writing showing Collard s intent at the time was any different from what he has professed ever since. No one on the face of the planet can tell Collard what was and wasn t on his mind on these points at the times relevant to this charge. Quite to the contrary, Collard tells the world what was and wasn t on his mind at the time. At no time did Collard animate the FEDERAL CAPACITY, and at no time was there any agreement as to choice of law. Tr. p.7 (top); Hab. Appl. pp.5-6. Thus, it s factually and legally impossible for STATE ever to prove the offer, agreement, or solicitation element of the statute; hence, all the pre-trial activity to mitigate the DA s, the trial court s, and STATE s damages. Regarding the choice of law facts compelled upon us by the mere existence of the funny money scam, see Collard s Brief in Given that choice of law duality, the Penal Code stops at the line of the place called this state, which is the federal zone in which funny money circulates freely. It matters greatly that STATE s Penal Code is exclusively Appellant s Brief, with Appendix (Collard) 5

16 limited to this state. PENAL CODE Unless and until there s an agreement made (A) in the FEDERAL CAPACITY and (B) under the choice of law of the place called this state, there simply is no evidence of any agreement within the jurisdiction of the Penal Code. For there to be any alleged agreement, of any type, kind, or nature, there must be an agreement on the choice of law. Since (1) STATE cannot compel anyone, including Collard, into (A) animating the FEDERAL CAPACITY or (B) agreeing to the choice of law of this state, and since (2) Collard has repeatedly asserted his non-animation of the FEDERAL CAPACITY and his non-agreement to the choice of law of this state, for all times relevant to the charge, and since (3) STATE has gone silent on this point in response to both the Special Appearance and the habeas, producing no writing or any other evidence showing that Collard (A) ever animated the FEDERAL CAPACITY or (B) agreed to the choice of law of this state at any time relevant to this charge, it follows that STATE confesses that its burden is impossible, as a matter of law. STATE has made no effort to prove up the necessary element(s). Thus, STATE confesses having no actual grievance, thus no standing. This matter is a non-case; hence, CIVIL; hence, the trial court has no subject matter jurisdiction. Appellant s Brief, with Appendix (Collard) 6

17 Summary of the Argument Reasons for pre-trial habeas Illegal restraint; lack of probable cause; bar to prosecution, e.g., lack of jurisdiction. Cf. Ex Parte J.C. Smith; Ex Parte C.S. Smith. No Notice STATE has never served Collard with any charging instrument. Since the case has moved forward without Notice, Notice is now impossible to cure. Where there is no Notice, all that remains is a non-case, for lack of personal jurisdiction. Non-cases are civil, which leaves a county criminal court completely without subject matter jurisdiction. Facially invalid statute Per the highly offensive concept in Art , STATE s burden to give Notice is negated. No Standing STATE has no actual grievance, for there is no agreement. Collard never animated the FEDERAL CAPACITY or agreed to the choice of law of the place called this state. Appellant s Brief, with Appendix (Collard) 7

18 Argument Point 1: Does the trial court have subject matter jurisdiction? Standard of Review. Question of law de novo. Overview. Given the rumor that it s relevant to discuss PENAL CODE 43.02, for STATE to satisfy its threshold burden on standing, STATE has to prove an offer, an agreement, or a solicitation. Thus, STATE has to prove for all times relevant to the matters giving rise to the charge that Collard not only (A) animated the FEDERAL CAPACITY but also (B) agreed to the choice of law of the place called this state. Without those two facts, STATE can never prove up any actionable offer, agreement, or solicitation. No commercial nexus. Here s the statute rumored to be relevant. Sec PROSTITUTION. (a) A person commits an offense if he knowingly: (1) offers to engage, agrees to engage, or engages in sexual conduct for a fee; or (2) solicits another in a public place to engage with him in sexual conduct for hire. PENAL CODE 43.02(a). STATE s two condition-precedent presumptions are false. There is no sexual conduct, here. So, STATE has to prove up an offer, an Appellant s Brief, with Appendix (Collard) 8

19 agreement, or a solicitation. STATE can prove up none of these. STATE s case depends heavily upon presumptions of conditions precedent. STATE s presumptions are false. There are two in particular: CAPACITY and choice of law. CAPACITY/CAPACITY. Unless and until the outside of court conduct animates the FEDERAL CAPACITY, there is no evidence of any conduct that comes within the scope of the Penal Code. STATE can t just presume that both (all) parties to such alleged offer, agreement, or solicitation acted in their FEDERAL CAPACITY. STATE must prove it. Yet, STATE has nothing in writing, and Collard has asserted non-animation of the FEDERAL CAPACITY from the outset of this judicial matter for all times relevant to the charge. In short, Collard is not liable in the capacity charged. There is not now nor will there ever be admissible evidence of any commercial act relevant to the statute. Since that element is legally impossible to prove, STATE has no evidence, as a matter of law, of any actual grievance. Thus, STATE has no standing. Sunset Valley, 146 S.W.3d at 646; Tex. Dept. of Parks & Wildlife v. Miranda (standing requires actual grievance ). CHOICE OF LAW. Moreover, STATE can t presume into existence an agreement as to a Appellant s Brief, with Appendix (Collard) 9

20 particular choice of law when pursuing any charge based on this statute. Choice of law is as much an element to a deal as any other element, e.g., color, quantity, size, delivery date, etc. Cf. Ogden v. Saunders. Thus, STATE must prove that the parties agreed to be governed by the choice of law of the place called this state. Without an agreement on choice of law, there is no offer, agreement, or solicitation that comes within the scope of the Penal Code. PENAL CODE 1.04 (jurisdiction limited to this state ). Since STATE has no writing, and since Collard has asserted his non-agreement with that choice of law from the outset, it follows that there is not now nor will there ever be admissible evidence of any commercial act relevant to the statute. STATE lacks standing; hence, trial court lacks subject matter jurisdiction. A court always has authority to determine its authority. Marbury v. Madison. To determine jurisdiction is to exercise inherent civil jurisdiction. Cf. United Mine Workers (civil jurisdiction is inherent; criminal jurisdiction must be proved). All cases are non-cases, i.e., civil, until STATE proves standing. Thus, to prove criminal jurisdiction, STATE has to prove standing. To prove standing, STATE has to prove an actual grievance. Sunset Valley, 146 S.W.3d at 646; Tex. Dept. of Parks & Wildlife v. Miranda (standing requires actual grievance ). For this statute, for STATE to have an actual grievance there first must be an offer, Appellant s Brief, with Appendix (Collard) 10

21 agreement, or solicitation that comes within the scope of the Penal Code, at all. Only where there is an offer, etc., recognizable by the Penal Code does any evaluation of it for (sexual) content become at all relevant. To say that the content is actionable without first showing the necessary commercial nexus to/with this state is to put the cart WAY before the horse. Since there is, and will be, no evidence that Collard ever animated the FEDERAL CAPACITY, and since there is, and will be, no evidence that Collard ever agreed to the choice of law of the place called this state, it follows that there is no commercial nexus. Without that commercial nexus, STATE s burden to prove standing is impossible to satisfy. Until there s a commercial nexus with this state, the content of any offer, etc., is completely irrelevant. STATE cannot compel Collard to animate any particular capacity. Consent can t be compelled, period. Cf. FED. R. CIV. P. 8(c); TEX. RS. CIV. P. 94, 266; see also Burger King Corp., 471 U.S. at 486 (duress, coercion does not give rise to jurisdiction); Ohralik (coercion in the legal services context); Bates (similar, looking at ads by members of legal profession); Gonzalez (magistrate participation cannot be compelled); Arnold (vacated per Booker) (defendant can t be compelled to agree to non-sense proposed during sentencing); Escobedo, 378 U.S. at 490 n.14 (coercion vitiates an alleged confession); Miranda, 384 U.S. at 475 (same). Appellant s Brief, with Appendix (Collard) 11

22 Thus, because STATE has no contemporaneous writing, and because Collard has objected from the threshold on these points, in particular, it follows that there is no evidence that Collard ever animated the FEDERAL CAPACITY or agreed to the choice of law of the place called this state at any time relevant to this charge, which is discussed solely based on rumor, anyway. Thus, STATE has no evidence of any commercial nexus. As a matter of law, then, not only is there no offer, agreement, or solicitation that even exists in the eyes of the Penal Code, but also the content of such a discussion is 100% irrelevant. STATE confesses, by its silence, that there is no commercial nexus. In sum, Collard never animated the FEDERAL CAPACITY or agreed to the choice of law the place called this state. Collard has challenged STATE to prove the commercial nexus, twice now, and STATE has gone completely silent. Given that STATE can t compel Collard into any capacity or into any choice of law at any time for any reason, because the coercive environment vitiates the very evidence it purports to create, see Burger King Corp., Ohralik, Bates, it follows that there simply is not now and has never been any commercial nexus. To do anything but grant habeas is to relieve STATE of its burden. Mullaney; In re Winship; Johnson (instruction amounted to directed verdict of guilt relieving State of its burden). Appellant s Brief, with Appendix (Collard) 12

23 Point 2: Does the trial court have personal jurisdiction? Standard of Review. Question of law de novo. Notice The have to question. As addressed in Point 3, STATE has to give Notice. Nothing relieves STATE of its Due Process burden to give/provide/serve meaningful Notice at a meaningful time and in a meaningful manner. See Smith. See also Hamdi (habeas proceeding, which is, of course, a CIVIL proceeding); Milliken (the Wyoming judgment was valid because service was valid; hence, the Wyoming court did have personal jurisdiction); Peralta (even meritorious defense issue is irrelevant to question of Notice); Lloyd, 5 U.S. at 366 ( A citation not served is as no citation. ); Internat l Shoe (opinion by Black, J.); Mullane; Armstrong, 380 U.S. at 552; Sniadach; Boddie; Fuentes; N. Ga. Finishing; and Jones. [I]t has been settled, that a judgment depending upon proceedings in personam can have no force as to one on whom there has been no service of process, actual or constructive; who has had no day in court, and no notice of any proceeding against him. That with respect to such a person, such a judgment is absolutely void. Harris, 55 U.S. at 339. An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under the circumstances, to apprise interested parties of the pendency of the action and afford them the opportunity to present their objections. Mullane, 339 U.S. at 314. A failure of Notice violates the most rudimentary Appellant s Brief, with Appendix (Collard) 13

24 demands of due process of law. Armstrong, 380 U.S. at 550. Notice The when question. Thus, all that remains to be determined is when. The direct analogy is to Art (b). In municipal court cases, STATE has the duty to give Notice at least a day before any proceeding relevant to the prosecution. A defendant is entitled to notice of a complaint against the defendant not later than the day before the date of any proceeding in the prosecution of the defendant under the complaint. While the day before is outrageously short, the concept of Notice is quite clear. Even more to the point, the defendant is entitled to Notice before any proceeding relevant to the prosecution. Thus, an arraignment sets the deadline for Notice; a motions hearing sets the deadline for Notice. In contrast, the present Do you have counsel? phase that precedes even an arraignment in misdemeanor and felony cases arguably does not constitute a proceeding in the prosecution for purposes of a municipal court procedure, but that point will likely never be confirmed, since appointment of counsel doesn t happen in municipal court cases. The point is that most, but obviously not all, activities in the prosecution of a misdemeanor case will trigger the concept found in that municipal court procedure. Applying that, we can t avoid this question: How can a Class C misdemeanor charge get more Due Process protection than a Class B, or, for that Appellant s Brief, with Appendix (Collard) 14

25 matter, a felony? It can t. In light of Rothgery (the arraignment is a proceeding for purposes of appointment of counsel), it follows that the date of the Arraignment is the effective maximum deadline for service of Notice on a defendant in a case that intends to be a criminal case. Notice must be served on the accused at a time that is meaningful even for that first proceeding. Thus, Notice must precede the arraignment or a motions hearing by at least a day even to satisfy the outrageously short time period allowed in the municipal courts. STATE is now too late. Collard has had an arraignment date set, a hearings motion, and now pretrial habeas. STATE still has served no charging instrument on Collard. Thus, if STATE were to serve Notice on Collard at this stage, it would be too late. Why this goes beyond mere personal jurisdiction analysis. Because the forum is a criminal case only forum, lack of Notice isn t merely a personal jurisdiction issue. It s also and instantly a lack of subject matter jurisdiction problem. How so? Until there s Notice, the matter is a non-case, which is civil, by definition. We see the term and/or concept of non-case used from time to time. Cf. Austin (Blackmun, J., dissent); Deposit Guaranty Nat l Bank, 445 U.S. at 353 (Powell, J., and Stewart, J., dissent); Williams, 472 U.S. at 36 (dissent) (citing Appellant s Brief, with Appendix (Collard) 15

26 Austin). Some matters never stop being non-cases. Cf. Rockwell Int l Corp. (the final pre-trial order confirmed that this was a non-case). In general, all cases are non-cases until the plaintiff can prove that the trial court has jurisdiction to proceed with the case. Non-cases are, by definition, civil. Civil authority is inherent. Cf. United Mine Workers. Thus, there s always jurisdiction to determine jurisdiction. Criminal jurisdiction, on the other hand, must be proved. Id. Thus, STATE must prove jurisdiction in the criminal context before any case may even remotely be labeled criminal. For a criminal case only forum to have jurisdiction to proceed, then, STATE must satisfy not only subject matter jurisdiction but also personal jurisdiction (and venue). Point 1 shows how STATE will never prove standing. Here we see how STATE will never satisfy Notice, either. Even if the trial court were a general jurisdiction forum, the judge would still have no jurisdiction to try a criminal case. But, where the trial court is limited to criminal cases only, it s all the more egregiously clear that STATE s burden to establish jurisdiction gets nothing but heavier. Where the defendant never had meaningful Notice at a meaningful time, the trial court never had personal jurisdiction, rendering the matter a non-case. Non-cases are civil, which translates into lack of subject matter jurisdiction for a criminal case only forum, whether a municipal, county, or district court. Appellant s Brief, with Appendix (Collard) 16

27 STATUTORY CHALLENGE Point 3: Does Art violate Due Process? Art Standard of Review. Question of law de novo. The statute. Art [490] [554] [543] IN MISDEMEANOR. In misdemeanors, it shall not be necessary before trial to furnish the accused with a copy of the indictment or information; but he or his counsel may demand a copy, which shall be given as early as possible. See also Art (same concept for felony cases). Common Sense. How in the world can anyone respond intelligently, even with a plea, much less a defense, without STATE s first fulfilling its duty to serve Notice on the defendant as to what the charge is all about?! The Law called Due Process. See Point 2. Notice isn t something limited to civil cases. Even a case legitimately called criminal requires Notice. Cf. Smith. The applicable federal standards place the burden on STATE to provide Notice. But STATE s legislature totally reverses that burden, compelling the Appellant s Brief, with Appendix (Collard) 17

28 defendant to demand it. Since this statute relieves STATE of its duty to provide meaningful Notice at a meaningful time in a meaningful manner, this statute facially defies and offends Due Process. Request for Relief Therefore, Collard requests that this court (A) declare Art void as offensive to Due Process, (B) reverse the trial court s denial of Collard s application for habeas, and (C) discharge Collard. Collard also requests costs. Respectfully submitted, /s/ Bobby Collard BOBBY COLLARD I reserve all my rights 1615 University Drive Richardson, Texas Appellant s Brief, with Appendix (Collard) 18

29 Certificate of Service By my signature below, I certify that on this the day of June, 2010, I have dispatched to the Clerk of the Court of Appeals one original and seven copies of this Brief with its Appendix, and have served, by certified mail, a true and correct copy on the following: CRAIG WATKINS Frank Crowley Courts Building 133 N. Riverfront Blvd., LB 19 Dallas, TX Given the statutory challenge, the following is also served: Hon. GREG ABBOTT Attorney General STATE OF TEXAS P.O. Box Austin, TX /s/ Bobby Collard Bobby Collard Appendix Trial court s denial of habeas... A-1 Supreme Court of Texas ruling, No A-2 The Bond agreement... A-3 The Statute is already in the body of the Brief Appellant s Brief, with Appendix (Collard) 19

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