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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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Im sorry if I said something that caused a problem.

Resolved Question:

I’m sorry if I said something that caused a problem. My comment, you adviced me, was just a poorly worded thought designed to ascribe credit to you for empowering me with information. Before you (and just answers) I was bewildered. Now, I have an optimism about my situation that I’ve not had before. I suspect you enjoy helping people (I do too). I feel gratified when someone I’ve helped “graduates” by demonstrating proficiency in what I tried to share. I suspect you get that feeling too. My posted document was not meant to solicit legal advice. Rather, it was my way of saying: “Look, I’m learning!” I only meant to give you the opportunity to feel gratified that you’ve made an important difference in someone’s life. It’s very clear in my mind that the questions you answer are for informational purposes only and they may not be construed as legal advice! Forgive me for forgetting that this communication forum is not a private one. Two questions: Can a trial reporter’s transcript function as a statement of fact? Do I craft an order for the appeals court, or will it draft its own order? Is it possible I may contact you through your private office?

Submitted: 1 year ago.
Category: Criminal Law
Expert:  AlexiaEsq. replied 1 year ago.
No problem, lol, and I understand what you are saying. I just feel the need to make sure people understand the difference. I know that you do, as to most if not all I deal with. But, apparently some bars may think that most people are not savvy enough and don't recognize the difference between what we provide here vs. attorney advice such as that you may get if you hire your own attorney. Insulting of the bars, yes, but there is likely a politics/greed behind it. Let's just say, many members of them do not like that legal information is more readily available due to internet and the like because they believe that all people should pay through the nose and have to pay a billable hour to a retained attorney. Of course, that avenue simply leads to people NOT being able to afford that, and not getting to avail themselves of their rights in the legal system, the very system their paid taxes pays for. Strange.

Anyhow,

Can a trial reporter’s transcript function as a statement of fact? I suppose that technically, one could say, "Appellant hereby incorporates as his Statement of Facts the Transcript dated XXX, hereby attached as Exhibit XX." However, I can not imagine why one would do that. First, you need to curb what he court has to read, only giving the most salient facts. You don't want to annoy the appellate court by making it read 100 pages of transcript because it will be timewasting and make you look lazy. Also, you only want to present the salient facts, those that apply to your issue(s), so why let them get lost by throwing in a transcript filled with every irrelevant fact as well as "uh", "um" etc. I can't see this being a good idea.

Do I craft an order for the appeals court, or will it draft its own order? A proposed order? Not that I can imagine, no. Because an Appellate court must provide a written opinion supporting its decision, it does't just say, "Reversed." And they are very lawyerly about it, lol, it is with proper legal research and citations etc. I see nothing indicating the contrary. Did you read something different elsewhere?

Is it possible I may contact you through your private office? No, it is prohibited. Sorry!
Expert:  AlexiaEsq. replied 1 year ago.
Look at Rule 47 of the Appellate Rules. LINK
Customer: replied 1 year ago.

You don't want to annoy the appellate court by making it read 100...


- You're right. I only want to attached the judge's decision.


I'd like to think these two errors are more than enough:



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 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 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 hasmisdirected 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, perRule 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)


 


 

Expert:  AlexiaEsq. replied 1 year ago.
If those are the only two you feel are strong, or you have no others you feel will add positively to your position, than yes, you make them as legally compelling as possible. On the other hand, if you believe you have appealable issues that are not "harmless error", you may consider adding them. Weak appealable issues that may be of incorrect actions below, but which are likely not ones that implicated the outcome or changed it from being in your favor (i.e. not material to the outcome) - are the ones that may be better left OUT, so as not to distract or add extra reading burden to the Court, with no benefit to you (or the Court).
Customer: replied 1 year ago.

Sorry for the delay – it was the job again.


I know we’ve spent time on this, but please stay with me.


When the appeals court considers errors: Is not the ultimate error where a trial court (in its own words) indicates a clear miscomprehension of the issue/law it sought to adjudicate? Hypothetically speaking, if an Appellant can prove that… why would an Appellant need or want to show more error?

Expert:  AlexiaEsq. replied 1 year ago.
Good morning!

When the appeals court considers errors: Is not the ultimate error where a trial court (in its own words) indicates a clear miscomprehension of the issue/law it sought to adjudicate? While the appeals court has not, as far as I know, defined an "ultimate error" - certainly a major basis of appealable error IS precisely when a trial just misunderstands, and then misapplies, the law that applied to the case - particularly if that misapplied law caused a ruling that would not otherwise have been made - i.e. NOT harmless error.

Hypothetically speaking, if an Appellant can prove that… why would an Appellant need or want to show more error?
If you can prove it (and right now that needs is a crystal ball) and it is reversible error (not harmless error), you wouldn't have to, likely. But the reason people put all useful (not unuseful) appealable issues into their brief is so that if one is not as they believe, they can still have the others considered, for a better chance of that reversal and/or remand. (It is similar to, "Don't put all your eggs in one basket." Or, similar to going to trial to defend on an alleged crime, have a few great pieces of evidence that tend to show you didn't do it, but only presenting the one - defense attorneys put in EVERYTHING that is helpful. Not totally the same threshold of decision making, given the desire to not be overly long in a brief, but same general idea. Also, are your 100% sure that your choice of the limited 1-2 appealable points are really the right ones? Lawyers that have been practicing for years in this field can struggle with that question for their clients. And you are your own client, which tends to put a subjective set of blinders on you, due to emotion, etc. I just urge you to be very sure. Because you only get one bite here.


I hope this helps! Let me know if you need follow up before or after RATING me. And PLEASE know that my job depends on a POSITIVE rating now and at least an 8-10 feedback rating later. Thanks! I won't forget your support.

Sincerely,

Alexia Esq.



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AlexiaEsq., Managing Attorney
Category: Criminal Law
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Experience: 19+ Years of Legal Practice in Criminal Law.
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