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AlexiaEsq.
AlexiaEsq., Managing Attorney
Category: Criminal Law
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Experience:  19+ Years of Legal Practice in Criminal Law.
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Can I cite error via the Motion?

Resolved Question:

Major Question:


Rather than cite error directly: Can I cite error via my denied “Motion to Vacate?" In that way, the strong issues get the “spot-light,” but the weak issues are there for the judge to see. Maybe he’ll ignore my strong issues and see a weak issue that he likes… who knows? Please bless this idea because I like it!


 


If you do bless it then I choose the denied “Motion to Vacate” over the denied “Motion for New Trial” because “Motion for New Trial” has a 5 day “shelf life” in Texas Municipal Court whereas “Motion to Vacate” stays fresh longer (I think). On the advice of my wise expert Alexia Esq., I filed both motions on the 8th day after I was found guilty. If I cite the denied “Motion for New Trial” (as my appeal’s basis) the prosecution can argue that while filing a “Motion for New Trial” was necessary to perfect my appeal, I filed it too late to be granted within Texas Municipal Court. Therefore, the trial court did not error in denying it - and thereby quieting all issues raised by it. But I don’t think he can use that argument against the denied “Motion to Vacate” – right? (see - I've been paying attention!)


 


This would comport with the judge’s direction for me to list everything that I thought was done wrong and put it into my New Trial Motion. It seems like his thinking was that his denial of my New Trial Motion would be my appeal’s basis.


 


Hmmm?


 


Issues Presented


 


First Issue:                   Not limited to denial of Defendant’s “Motion to Vacate” where said denial indicates: The trial court abridged Defendant’s due-process rights by forgetting Defendant’s “Motion to Dismiss” & misreciting case history.


 


Second Issue:              Not limited to where the trial court abused its discretion when it dismissed assistance identification aids (meant to assist the trial court in locating relevant images within dark & rainy conditions) within picture evidence.


 


Third Issue:                  Not limited to denial of Defendant’s “Motion to Vacate” where said denial indicates: The trial court abused its discretion when it denied Defendant’s summary judgment motion because such denial was contrary to the law and the evidence.


 


Forth Issue:                 Not limited denial of Defendant’s “Motion to Vacate” where said denial indicates: The trial court held Defendant to a deliberation standard that was higher than “beyond a reasonable doubt.”


 


Fifth Issue:                  Not limited to denial of Defendant’s “Motion for Judgment Nunc Pro Tunc” where said denial indicates: The trial court abused its discretion by not correcting judgment’s misrecital because said misrecital subjected Defendant (to the effect) of additional judgments (without trial).


 


 


Summary of the Argument


 


The trial court rendered a verdict that is contrary to the law and the evidence because pre-trial motion mishandling left the Defendant shieldless against state’s allegations which were baseless. Therefore, the trial court’s decision amounts to a miscarriage of justice.


 


 


 

Submitted: 1 year ago.
Category: Criminal Law
Expert:  AlexiaEsq. replied 1 year ago.
Hey, I am running to a funeral quite far away, in another state, and won't get back til late, can this wait til tomorrow? If not, I totally understand, and feel free to opt me out. Thanks!

Alexia Esq.
Customer: replied 1 year ago.

It can wait! Travel Safely!

 

Two: questions

- What do I put for "Statement of Fact?"

I'm only going to attach the Decision part of the Transcript.

- What should the order look like?

The template I followed didn't have an one.

 

 

NO.(NNN) NNN-NNNN/p>

IN THE COURT OF APPEALS FOR

THE AUSTIN MUNICIPAL COURT, TRAVISCOUNTY

AUSTIN, TEXAS

ERIC TIMMES,

Appellant

v.

THE STATE OF TEXAS,

Appellee

APPELLANT'S BRIEF

On Appeal from the Austin Municipal Court

of TravisCounty, Texas,

Trial Court Cause No.(NNN) NNN-NNNN/p>

Eric Timmes, pro-se

6910Crystalbrook Dr.

Austin, Texas78724

Telephone: (XXX) XXX-XXXX

Email: XXXXX@XXXXXX.XXX

 

Identity of Parties and Counsel

 

Appellant, pursuant to Rule of Appellate Procedure 38.1(a), provides the following list of all parties to the trial court's judgment and the names and addresses of all trial and appellate counsel.

 

 

Eric Timmes self-represented: Trial & Appeal

XXXXX

Austin, Texas78724

 

Jamie L. Flores Trial Counsel for the State

AssistantCity Attorney

 

Jaime L. Flores Appellate Counsel for the State

AssistantCity Attorney

 

Austin Municipal Court

Prosecutor's Office

P. O. Box 2135

Austin, TX78768

 

Table of Contents

 

Identity of Parties and Counsel ................................................................................................ ii

Statement of the Case ............................................................................................................. viii

Statement Regarding Oral Argument .................................................................................... viii

Issues Presented ...................................................................................................................... viii

Statement of Facts ...................................................................................................................... 1

Summary of the Argument ........................................................................................................ 7

 

First Issue: Denial of Appellant’s “Motion to Vacate” where said denial indicates: The trial court abridged Appellant’s due-process rights by omitting Appellant’s motion to dismiss, misreciting case history, and misinterpreting Section 552.002. .................................................................................................................... 8

 

Second Issue: Denial of Appellant’s “Motion to Vacate” where said denial indicates: The trial court abused its discretion when it denied Appellant’s summary judgment motion because such denial was contrary to the law and the evidence. .................................... 18

 

 

Prayer............................................................................................................................... 25

 

Certificate of Service ...................................................................................................... 25

 

Statement of the Case

The trial court convicted Appellant of “Failure to yield - Pedestrian with walk signal” and assessed punishment (a fine of $300.00). Appellant timely filed a notice of appeal.

(See judgment, attached as Exhibit A.)
(See notice of appeal, attached as Exhibit B.)

Statement Regarding Oral Argument

Oral argument will not aid the Court's decisional process in this appeal.

Issues Presented

First Issue: Denial of Appellant’s “Motion to Vacate” where said denial indicates: The trial court abridged Appellant’s due-process rights by omitting Appellant’s motion to dismiss, misreciting case history, and misinterpreting Section 552.002.

 

Second Issue: Denial of Appellant’s “Motion to Vacate” where said denial indicates: The trial court abused its discretion when it denied Appellant’s summary judgment motion because such denial was contrary to the law and the evidence.

 

 

 

 

Summary of the Argument

The trial court rendered a verdict that is contrary to the law and the evidence because pre-trial motion mishandling and misinterpretation of Section 552.002 prevented Appellant from receiving a fair trial.

 

Argument

First Issue: Denial of Appellant’s “Motion to Vacate” where said denial indicates: The trial court abridged Appellant’s due-process rights by omitting Appellant’s motion to dismiss, misreciting case history, and misinterpreting Section 552.002.

 

Applicable Law

RULE 320. MOTION AND ACTION OF COURT THEREON

New trials may be granted and judgment set aside for good cause, on motion or on the court's own motion on such terms as the court shall direct. New trials may be granted when the damages are manifestly too small or too large. When it appears to the court that a new trial should be granted on a point or points that affect only a part of the matters in controversy and that such part is clearly separable without unfairness to the parties, the court may grant a new trial as to that part only, provided that a separate trial on unliquidated damages alone shall not be ordered if liability issues are contested. Each motion for new trial shall be in writing and signed by the party or his attorney.

 

Rule 21.3 Grounds

The defendant must be granted a new trial, or a new trial on punishment, for any of the following reasons: (a) except in a misdemeanor case in which the maximum possible punishment is a fine, when the defendant has been unlawfully tried in absentia or has beendenied counsel; (b) when the court has misdirected the jury about the law or has committed some other material error likely to injure the defendant's rights; (c) when the verdict has been decided by lot or in any manner other than a fair expression of the jurors' opinion; (d) when a juror has been bribed to convict or has been guilty of any other corrupt conduct; (e) when a material defense witness has been kept fromcourt by force, threats, or fraud, or when evidencetending to establish the defendant's innocence hasbeen intentionally destroyed or withheld, thuspreventing its production at trial; (f) when, after retiring to deliberate, the jury has received other evidence; when a juror has talked with anyone about the case; or when a juror became so intoxicated that his or her vote was probably influenced as a result; (g) when the jury has engaged in such misconduct that the defendant did not receive a fair and impartial trial; or (h) when the verdict is contrary to the law and the evidence.

 

Sec. 552.002. PEDESTRIAN RIGHT-OF-WAY IF CONTROL SIGNAL PRESENT.

(a) A pedestrian control signal displaying "Walk," "Don't Walk," or "Wait" applies to a pedestrian as provided by this section.

(b) A pedestrian facing a "Walk" signal may proceed across a roadway in the direction of the signal, and the operator of a vehicle shall yield the right-of-way to the pedestrian.

(c) A pedestrian may not start to cross a roadway in the direction of a "Don't Walk" signal or a "Wait" signal. A pedestrian who has partially crossed while the "Walk" signal is displayed shall proceed to a sidewalk or safety island while the "Don't Walk" signal or "Wait" signal is displayed.

 

This issue presents for determination the question whether the trial court abridged Appellant’s due-process right when it omitted Appellant’s motion to quash (aka: motion to dismiss) from its citation of case history - while at the same time – trial court indicated that if such motion had it been “raised,” it would have made a difference in its ruling. In addition, this issue presents for determination the question whether the trial court was able to evaluate Appellant’s compliance of Sec. 552.002 – while at the same time - trial court was in misunderstanding about the operation of that same statute. In this case, the answer to both questions is “NO.”

 

In explaining its ruling on January 10, 2013; the trial court misrecited case history by indicating that a certain “Motion to Quash” would have been treated favorably by the trial court, but no such motion type was filed.[T] However, online case history found at:

https://www.austintexas.gov/AmcPublicInquiry/query/psnquery.aspx?query=3&case=7735475

shows that on 6/22/2012, the trial court received Appellant’s motion to quash (aka: “Motion to Dismiss).” Said history shows on 6/28/2012, the trial court ordered a hearing in response to said motion. Said history further shows a hearing occurred on 7/19/2012.

 

Case Information

Case #

Type

Status

Date Filed

Date Closed

(NNN) NNN-NNNN/p>

Traffic

APPEALED

2/1/2012

 

 

Defendant Information

Defendant

Total Cost

Amount Paid

Balance Due

Timmes, Eric Glenn

$300.00

$0.00

$300.00

 

 

Correspondence From E-Mail

6/21/2012

01:30 PM

Motion to Dismiss

6/22/2012

09:38 AM

Correspondence From E-Mail

6/22/2012

10:19 AM

Motion for Continuance Referred to Trial Judge

6/25/2012

03:28 PM

Motion Filed within 48 hours of Court Appearance

6/25/2012

03:28 PM

Case Sent to Case Management for Updating

6/27/2012

04:29 PM

Order of the Court - Judge's Order

6/27/2012

04:29 PM

Contact Info Verified

6/28/2012

10:22 AM

Notice to Appear - Pre-trial

6/28/2012

11:17 AM

Correspondence From E-Mail

6/28/2012

11:19 AM

Jury Trial

7/5/2012

01:15 PM

Correspondence From E-Mail

7/5/2012

04:20 PM

Pre-Trial Hearing

7/19/2012

02:00 PM

 

However, subsequent entries indicate said motion received no ruling.

Moreover, the trial court’s explanation of its decision demonstrates misunderstanding of Section. 552.002. The trial court’s explanation at ruling cites an interpretation of Sec 552.002 where vehicle/pedestrian location (within the street) regulates right-of-way status. However, such interpretation is erred because Section. 552.002 does not contain language where right-of-way status is regulated by location:

·________________________________________________________

 

· · · · · · · · · · · · COURT'S RULING (excerpt)

·________________________________________________________

 

23·· · · · · · · · If you want to be specific, I think what

24··State could have -- should have pled was the pedestrian

25··is one-half -- is one -- on the half of the roadway in

·1··which the vehicle is traveling or approaching so closely

·2··from the opposite side -- opposite half of the roadway

·3··as to be in danger.··That could have been a motion to

·4··quash.··I would have granted that.··And since the State

 

Rather, said statute clearly sets forth that pedestrian right-of-way is determined by the mode of the pedestrian control signal.

 

Section 552.002. (c) A pedestrian may not start to cross a roadway in the
direction of a "Don't Walk" signal or a "Wait" signal.

 

Furthermore, said statue does not provide prosecution authorization for the allegation of “danger.” The trial court’s willingness to exonerate (for reasons not found within statute) opens the possibility that trial court convicted (for reasons not found within statute). Trial court’s perception that statute allowed for the adjudication of “danger” indicates trial court did not interpret statute correctly when it rendered verdict. Therefore, statue misinterpretation is the apparent reason why trial court ruled against Appellant when such ruling was contrary to the law.

 

Given that the trial court: (1) omitted said motion & indicated said motion would have made a difference in its ruling; (2) misrecited case history; and (3) misinterpreted Section 552.002: In the interest of justice & judicial economy – the appellate court should dismiss state’s complaint against Appellant. ELSE, Appellant’s due-process rights should be restored through the granting of a new trial so the trial court can correctly interpret Section 552.002 and incorporate the omitted motion into the trial court’s decision. OR, per RULE 320; judgment should be set aside for “good cause,” and the Appellant be granted a new trial on matters in controversy.

(See print-out of online case history, attached as Exhibit P.)

[T] (See transcript of oral explanation of judgment, attached as Exhibit T.)

···

________________________________________________________

·

· · · · · · · · · · · · COURT'S RULING (whole)

·________________________________________________________

Page 2

1 P R O C E E D I N G S···

·2·· · · · · · · · THE COURT:··Thank you, sir.··Give me a

·3··couple of minutes.

·4·· · · · · · · · (Brief pause)

·5·· · · · · · · · THE COURT:··Okay.··Let me go ahead and

·6··give a verdict in this particular case.··It comes down

·7··to a couple things.··I guess the first thing is a

·8··pretrial matter that was decided initially and that --

·9··well, it wasn't raised.··What could have been raised was

10··a motion to quash that the complaint was not specific

11··enough.··I'm going to say that was waived because no

12··one -- you didn't bring it up.··And that was -- it says

13··in the complaint that the defendant did operate a motor

14··vehicle on Jollyville Road and its intersection with

15··West Braker Lane, the intersection of two public streets

16··when a pedestrian -- a pedestrian control signal

17··indicating walk was the place for pedestrian traffic

18··crossing Jollyville Road, and did fail to yield the

19··right-of-way to a pedestrian crossing the roadway within

20··a crosswalk -- here's the kicker -- when said pedestrian

21··was proceeding across said roadway in the direction of

22··the pedestrian signal.

23·· · · · · · · · If you want to be specific, I think what

24··State could have -- should have pled was the pedestrian

25··is one-half -- is one -- on the half of the roadway in

Nikki Edwards, CSR

(XXX) XXX-XXXX

Page 3

·1··which the vehicle is traveling or approaching so closely

·2··from the opposite side -- opposite half of the roadway

·3··as to be in danger.··That could have been a motion to

·4··quash.··I would have granted that.··And since the State

·5··had to be more specific, that wasn't raised.··So we go

·6··forward.··We go forward with the testimony that was --

·7··I'm saying that should have been a motion to quash,

·8··maybe I would have granted that, had that been objected

·9··to.··It was not.··And I look in the file.··I don't see

10··that.

11·· · · · · · · · But to the facts of the case from the

12··evidence that has been presented, I am going to find the

13··defendant guilty of the offense charged and impose a

14··fine of $300.··Let me go ahead and write that judgment

15··up.··And as soon as I do, you will have that -- a copy

16··of that as well.··Thank you.

17·· · · · · · · · MR. FLORES:··Thank you, XXXXX XXXXX··May

18··the State be excused?

19·· · · · · · · · THE COURT:··You may.

20·· · · · · · · · (End of proceedings)

21··

22··

23··

24··

25··

Nikki Edwards, CSR

(XXX) XXX-XXXX

 

 

 

Second Issue: Denial of Appellant’s “Motion to Vacate” where said denial indicates: The trial court abused its discretion when it denied Appellant’s summary judgment motion because such denial was contrary to the law and the evidence.

 

Applicable Law

Rule 21.3 Grounds

The defendant must be granted a new trial, or a new trial on punishment, for any of the following reasons: (a) except in a misdemeanor case in which the maximum possible punishment is a fine, when the defendanthas been unlawfully tried in absentia or has beendenied counsel; (b) when the court has misdirected the jury about the law or has committed some other material error likely toinjure the defendant's rights; (c) when the verdict has been decided by lot or in any manner other than a fair expression of the jurors' opinion; (d) when a juror has been bribed to convict or has been guilty of any other corrupt conduct; (e) when a material defense witness has been kept fromcourt by force, threats, or fraud, or when evidencetending to establish the defendant's innocence hasbeen intentionally destroyed or withheld, thuspreventing its production at trial; (f) when, after retiring to deliberate, the jury has received other evidence; when a juror has talked with anyone about the case; or when a juror became so intoxicated that his or her vote was probably influenced as a result; (g) when the jury has engaged in such misconduct that the defendant did not receive a fair and impartial trial; or (h) when the verdict is contrary to the law and the evidence.

 

RULE 320. MOTION AND ACTION OF COURT THEREON

New trials may be granted and judgment set aside for good cause, on motion or on the court's own motion on such terms as the court shall direct. New trials may be granted when the damages are manifestly too small or too large. When it appears to the court that a new trial should be granted on a point or points that affect only a part of the matters in controversy and that such part is clearly separable without unfairness to the parties, the court may grant a new trial as to that part only, provided that a separate trial on unliquidated damages alone shall not be ordered if liability issues are contested. Each motion for new trial shall be in writing and signed by the party or his attorney.

 

Sec. 552.002. PEDESTRIAN RIGHT-OF-WAY IF CONTROL SIGNAL PRESENT.

(a) A pedestrian control signal displaying "Walk," "Don't Walk," or "Wait" applies to a pedestrian as provided by this section.

(b) A pedestrian facing a "Walk" signal may proceed across a roadway in the direction of the signal, and the operator of a vehicle shall yield the right-of-way to the pedestrian.

(c) A pedestrian may not start to cross a roadway in the direction of a "Don't Walk" signal or a "Wait" signal. A pedestrian who has partially crossed while the "Walk" signal is displayed shall proceed to a sidewalk or safety island while the "Don't Walk" signal or "Wait" signal is displayed.

 

This issue presents for determination the question whether Appellant can be found guilty of denying right-of-way to pedestrians when said pedestrians did not statutorily posses the right-of-way? In this case, the answer is “NO.” In order for the Appellant to be guilty of denying right-of-way to pedestrians, said pedestrians FIRST must statutorily posses right-of-way. However in this case, pedestrians did not posses right-of-way. Texas Transportation Code: Section. 552.002. PEDESTRIAN RIGHT-OF-WAY IF CONTROL SIGNAL PRESENT clearly sets forth that pedestrians only posses right-of-way when they face a pedestrian control that is displaying the “WALK” signal. Exhibits “A” & “B” attached to Appellant’s summary judgment motion clearly show the pedestrian control was not displaying a “WALK” signal. Instead, said control is displaying the “orange hand,” and such mode does not convey right-of-way status to pedestrians. The “Orange hand” (whether flashing or solid) statutorily ordered pedestrians not to cross street, but pedestrians were ordered to seek a safety island.

Sec. 552.002. PEDESTRIAN RIGHT-OF-WAY IF CONTROL SIGNAL PRESENT.

 

(a) A pedestrian control signal displaying "Walk," "Don't Walk," or "Wait" applies to a pedestrian as provided by this section.

 

(b) A pedestrian facing a "Walk" signal may proceed across a roadway in the direction of the signal, and the operator of a vehicle shall yield the right-of-way to the pedestrian.

 

(c) A pedestrian may not start to cross a roadway in the direction of a "Don't Walk" signal or a "Wait" signal. A pedestrian who has partially crossed while the "Walk" signal is displayed shall proceed to a sidewalk or safety island while the "Don't Walk" signal or "Wait" signal is displayed.

 

In the interest of justice & judicial economy – the appellate court should dismiss state’s complaint against Appellant. ELSE, per Rule 21.3; Appellant should be grant a new trial so the trial court can issue a ruling that is consistent with what photo evidence shows; subject to criteria set forth in Section 552.002(c). OR, per RULE 320; judgment should be set aside for “good cause, and the Appellant granted a new trial on matters in controversy.

(See Exhibits “A” & “B” attached to Appellant’s summary judgment motion)

 

 

Prayer

 

WHEREFORE, PREMISES CONSIDERED, Appellant Eric Timmes asks the

appellate Court to: (1) dismiss state’s action against against him, or at the Court’s discretion; (2) remand this cause to the trial court for a new trial; and (3) grant such other and further relief to which he may show himself justly entitled.

 

 

Respectfully submitted,

 

 

____________________________

Eric Timmes, pro-se

6910Crystalbrook Dr.

Austin, Texas78724

Telephone: (XXX) XXX-XXXX

Email: XXXXX@XXXXXX.XXX

 

 

Expert:  AlexiaEsq. replied 1 year ago.


 


If you do bless it then I choose the denied “Motion to Vacate” over the denied “Motion for New Trial” because “Motion for New Trial” has a 5 day “shelf life” in Texas Municipal Court whereas “Motion to Vacate” stays fresh longer (I think).

On the advice of my wise expert Alexia Esq., I didn't advise you Eric, I only shared what general legal info I could locate and cite for you.

I filed both motions on the 8th day after I was found guilty. If I cite the denied “Motion for New Trial” (as my appeal’s basis) the prosecution can argue that while filing a “Motion for New Trial” was necessary to perfect my appeal, I filed it too late to be granted within Texas Municipal Court. Therefore, the trial court did not error in denying it - and thereby quieting all issues raised by it. Yes, that sounds logical. But I don’t think he can use that argument against the denied “Motion to Vacate” – right? I believe you to be right. (see - I've been paying attention!) - lol. But didn't you also have issues in the trial itself that were appealable?


 


This would comport with the judge’s direction for me to list everything that I thought was done wrong and put it into my New Trial Motion. Yes. If you snooze on it you usually lose on it.

It seems like his thinking was that his denial of my New Trial Motion would be my appeal’s basis. I don't think your appeal is limited to your points made in your Motion for a New Trial (although I have not researched that specific point). But technically, you'd want them all in, (assuming it would be heard and not out of time, which is was, for the purpose of the motion)...


Hmmm? You are appealing your denied Motion to Vacate that you say you made on that 8th day. But you can appeal ALL things done wrong at trial, so don't feel like you have to limit it, if there are other things. Let's say your motion to vacate was based on broad "in the interests of justice" but you have an appealable issue from trial that has precedent, something specific to support you. Why not include that?

 

(I see you posted what appears to be your brief. Please know that I can not review that document, as it could be argued to be providing legal advise on that filing - not legal information available publicly, to share.)

AlexiaEsq., Managing Attorney
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