Cause
No. {cause
number for the case}
|
THE STATE OF TEXAS
VS.
{NAME OF DEFENDANT}
|
§
§
§
§
§
|
IN THE {identity of the municipal or
justice or county court at law} OF
{name of the city or county}, TEXAS
|
{Note that this is a model from which to construct your
final document. Nothing in curly braces,
“{}”, or the curly braces should show up in your final document, but the
information in the curly braces may suggest particular individualized text that
should replace the curly braces. This
motion probably will not be granted itself, but it is expected to cause the
trial court, for a misdemeanor, to take some other action that results in the
desired effect. The sooner that the
judicial officers become aware of this motion the more ways they can engineer
something to let the case against you go without them losing face. The primary issue is that since the 1940’s
the constitutionally prescribed method for charging a misdemeanor has not been
followed. There is a view that every misdemeanor conviction in
Texas for the past several decades is void.
Although these issues have been brought up in trial courts before and
ignored, this motion also threatens the use of habeas corpus. Habeas corpus, or threat of it, has been
found effective and necessary. One with
a great amount of experience with habeas corpus has said that it’s as if “The
System is terrified of being called upon to give an accounting of itself.”}
DEFENDANT’S MOTION FOR DISMISSAL IN LIEU OF APPLICATION
FOR THE WRIT OF HABEAS CORPUS
TO THE HONORABLE
JUDGE OF SAID COURT:
COMES NOW {Name of Defendant}, defendant in the above
described and numbered cause, and would show the court that the case file for
the above described and numbered case lacks certain documents essential to show
that the court had obtained jurisdiction of this cause, {and whatever other points
are to be brought up.} Defendant has been deprived of
the due course of law and due process, which can be remedied through Habeas
Corpus, but defendant desires to afford the court opportunity to provide
remedy.
BACKGROUND
1.
Defendant was charged by {Information/Complaint as the case may be} with the offense of {name or describe the
charge}.
DEPRIVATION
OF DUE COURSE OF LAW AND DUE PROCESS
2.
Defendant, {Name of Defendant}, in order to show the facts that the case file for this case lacks
necessary documents that show that the court had ever obtained jurisdiction of
this cause states:
a.
Defendant has examined the records for this case and has failed to find
that a misdemeanor indictment for this case was ever issued by a grand jury.
{if you’re going to swear that you took a look at the records, go take a look
and actually look for what you’re saying you did not find}
b.
Defendant has failed to find records showing that any such indictment for
this case had been quashed in the trial court.
c.
Defendant has failed to find records showing that any proceedings have
taken place resulting in a finding of probable guilt resulting in an
information being used in this case.
d.
Defendant has failed to find a waiver of indictment.
e.
{any other facts to bring up about this point}
3.
The procedure for charging a misdemeanor is specified in Article V,
Section 17 of the Texas Constitution, which states:
The
County Court shall hold terms as provided by law. Prosecutions
may be commenced in said court by
information filed by the county attorney, or by affidavit, as may be provided
by law. Grand
juries empaneled in the District Courts shall
enquire into misdemeanors, and all indictments
therefor returned into the District Courts shall forthwith be certified to the
County Courts or other inferior courts, having jurisdiction to try them for
trial; and if such indictment be quashed in the County, or other inferior
court, the person charged, shall not be discharged if there is probable cause
of guilt, but may be held by such court or magistrate to answer an information
or affidavit. A jury in the County
Court shall consist of six persons; but no jury shall be empaneled to try a
civil case unless demanded by one of the parties, who shall pay such jury fee
therefor, in advance, as may be prescribed by law, unless he makes affidavit
that he is unable to pay the same. (Emphasis added)
These constitutionally prescribed
procedures have been further implemented in Texas Code of Criminal at Art.
21.26 – 21.30.
4.
The County Court identified in Sentence One (1) and Sentence Two (2) of
this section of the Constitution does not include this trial court.
5.
The current state of the records of this case having been identified to
the court, the court is no longer justified in applying the presumption of
regularity in considering the manner by which the Information {or Complaint}
used in this case arrived at the court.
6.
The current state of the records for this case indicates that the
procedure used to bring the Information for this case to the trial court was
out of order of the procedure prescribed by Article V, Section 17 of the Texas
Constitution.
7.
The current state of the records for this case indicates that the
procedure used to bring the Information {or Complaint} for this case to the
trial court did not constitute a “presentment of an indictment or information
to a court” as contemplated by Article V, Section 12(b) of the Texas
Constitution.
8.
The current state of the records for this case indicates that defendant
was deprived of the due course of law prescribed by the Article V, Section 17
of the Texas Constitution and the Texas Code of Criminal Procedure.
9.
The current state of the records for this case fails to show that the
trial court ever obtained jurisdiction of this cause.
No Remedy By Appeal
10. The trial court lacking
jurisdiction of this cause deprives appellate courts of jurisdiction of an
appeal. “The justice court being without
jurisdiction, the county court was also without jurisdiction on appeal. It therefore follows that appellant's
conviction is void. For the reasons
stated, the appeal is dismissed without prejudice to appellant's right to
attack the judgment of conviction as being void for the want of jurisdiction in
both the justice court and the county court at law by writ of habeas
corpus.” (Citations omitted) Bonner
v. State, 436
S.W.2d 904, 906 (Tex.Cr.App. 1968).
11. However, this court can
still take appropriate action in this matter.
“The only "jurisdiction" of which every court is assured
possession is the jurisdiction to assess its subject matter jurisdiction and act
accordingly.” Camacho v. Samaniego, 831 S.W.2d 804, 809
(Tex. 1992) citing Camacho v.
Samaniego, 825
S.W.2d at 469 (Tex.App.-El Paso 1991).
12. Defendant is prepared to
institute proceedings to obtain relief through habeas corpus, but he requests
that this court take immediate proper and just action in this matter. See
Defendant’s Exhibit 1 attached.
{OTHER ISSUES BROUGHT UP IN THE ATTACHED APPLICATION
FOR HABEAS CORPUS}
13. {State your case for the
other issues}
PRAYER
WHEREFORE PREMISES
CONSIDERED, {Name
of Defendant},
defendant, respectfully request that this court:
Upon the prosecutor of
this cause failing to produce sufficient documentation to show that the
constitutionally prescribed procedures were followed for bringing this cause to
this court, that this cause be dismissed, and
{Anything else that you
feel is proper to ask for at this time, and}
Any and all other and
added relief to which he may show himself or otherwise be entitled at law or in
equity, which the court deems to be just.
Respectfully submitted,
____________________________________
{Name of Defendant}
{Street address}
{City}, Texas [zip]
Tel. {(nnn) nnn-nnnn}
VERIFICATION
STATE OF TEXAS
COUNTY OF {name of county}
ACKNOWLEDGMENT
Before me the undersigned authority on this day
personally appeared {Name of
Defendant} who after being duly
sworn, did depose and state:
"My name is {Name of
Defendant}, I am over twenty-one
(21) years of age, have never been convicted of a felony or a crime of moral
turpitude {if you don’t meet any
particular qualification listed here, then just take that one out} and am
competent to make this affidavit. I am the Movant in the foregoing Defendant’s
Motion For Dismissal In Lieu Of Application For The Writ Of Habeas Corpus
and all statements, allegations, denials and attachments contained therein are
true and correct to the best of my knowledge and belief."
{Name of Defendant}
Given under my hand and seal this day of ____________ 2005
__________________________________________
Notary
Public, In and For the State of Texas
__________________________________________
Name of
Notary - Printed
CERTIFICATE OF SERVICE
I certify that I
delivered by hand {or
identify the method actually used}
a true and correct copy of foregoing Defendant’s Motion For Dismissal In
Lieu Of Application For The Writ Of Habeas Corpus to the office of the
attorney representing the State, at {Street
Address}, {City}, Texas, on {DATE}.
______________________________
{Name of Defendant}
{Street address}
{City}, Texas [zip{if you want}]
Tel. {(nnn) nnn-nnnn}
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