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AlexiaEsq.
AlexiaEsq., Managing Attorney
Category: Criminal Law
Satisfied Customers: 11837
Experience:  19+ Years of Legal Practice in Criminal Law.
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Hello Alexia, Hope all is well with you. Im chugging along

Resolved Question:

Hello Alexia,
Hope all is well with you. I’m chugging along thanks to you and other experts.
I understand the practice of law is somewhat subjective so I expect to get different interpretations from lawyer to lawyer. But I’m really having a tough time with the issue court report’s transcript (whole or part). You’ll recognize your input to me. However, another expert has a different take on the matter. I’m not trying to pit one expect against another expert, because I believe you both are right, and the problem is my inability to understand what you both are saying. Can you help me reconcile what you both are saying?
Thx!

The prosecution can submit whatever part of the transcript they choose to submit. Thus, they can submit the entire transcript if they choose to do so and if they feel there is something in the transcript that helps their case and defeats your arguments on appeal they will do so. You should be submitting the whole transcript yourself because that is what the appeals court uses to review to base their judgment on, they look at the transcripts to locate what the court did regarding the parts of your arguments about your issues on the appeal.

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.
Submitted: 1 year ago.
Category: Criminal Law
Expert:  AlexiaEsq. replied 1 year ago.
Hey, nice to see you again.

Hi, can you cut and paste the question and the other response, or otherwise direct me to it?
Expert:  AlexiaEsq. replied 1 year ago.
OK, I think you are speaking of this one?

http://www.justanswer.com/law/7lzvj-dear-sir-wrote-earlier-tx-appeals-brief.html


You stated: "I’m confused because I’ve also been advised not to annoy the appeals court by submitting the entire transcript and thereby forcing them to go the whole thing?"

The reason you see what seems to be different answers is that you actually posed us different questions, as I recall. Correct me, (and I can't find the post that you and I discussed, to if you can send me that link, that would be helpful, but I do kind of recall...) but didn't you suggest to me that you were considering just saying, as your statement of facts, "see the whole transcript" AS YOUR STATEMENT OF FACTS? And that would not be wise, in my opinion, since 90% of that transcript would not be part of your relevent facts (for the appeal issue(s)). However, the whole transcript IS part of the record on appeal. But you would typically refer to the sections you need the appellate court to point its attention to. You don't want it to read 50 pages, 48 of which are irrelevent to your material facts (material to your appeal). Submitting the transcript, which is appropriate, does NOT mean you are asking the court to read the whole thing so it can see one sentence you are really interested in. As I recollect, you were asking if you can just use the transcript as your statement of facts (overbroad), which is different from whether to submit the whole transcript - and I don't recommend considering the former, but do recommend considering the latter.

Does this make sense?
Customer: replied 1 year ago.

Well, you’re partly right.

At this time, I don’t have the transcript of the whole trial (from start to finish). I only have the judge’s decision. I ordered it to attach to my new trial motion. After the new trial motion was denied, I considered submitting a limited appeal that dealt with (what I perceive as) two prevailing errors. To this end., I was going to submit the entire transcript in my possession, i.e., the judge’s decision.

 

I guess maybe I don’t understand what is meant by “statement of facts.”

Up until this point, the definition I was using came from a guideline paper I received from the trial court. It says,

 

“(When notice of appeal is given.) If a record was made of the trial by the court reporter and you wish this to be included in the appeal, you must order this from the court reporter and pay the reporter for transcribing the Statement of Facts… If there was not a court reporter at your trial, and you with to have a statement of facts of the proceedings at trial, you must reach an agreed statement of facts with the prosecuting attorney.”

 

Clearly the trial itself was captured by the court reporter, but the pre & post trial motion handling was not. What I perceive as egregious error occurred during motion consideration (except for when the trial judge put his foot in his month by saying there was no motion to quash filed, when in fact, there was one). Anyway, I asked the prosecutor if we could agree on certain things that happened during my pre-trial, but he won’t respond. And I understand why…because the items I’m asking him to agree on are errors that will damage the state’s position in defending the conviction in appeal.

 

As lame as the trial judge was, even he ruled in my favor and granted sanctions against this prosecutor when he refused to voluntarily release his list of potential witnesses to me. This guy’s mission is to “convict” and not see that justice is done.

 

Anyway, as I understand it, if the prosecutor and I cannot agree, then there can be no “statement of facts.” I guess this guy is withholding cooperation as a tactic to keep pre-trial errors off the record and thereby not considered by the appeals court. Can I put in there that: IT IS A FACT that I requested the prosecutor’s cooperation in agreeing on pre-trial events, but his cooperation was not forth coming? Or, maybe since there was no record of pre-trial events, can I use that as a basis for asking the appeals court to consider pre-trial matters (such as motions) on a de-novo basis?

 

 

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

Well, you’re partly right.

At this time, I don’t have the transcript of the whole trial (from start to finish). You ordered it and are waiting for it?

 

I only have the judge’s decision. I ordered it to attach to my new trial motion. After the new trial motion was denied, I considered submitting a limited appeal that dealt with (what I perceive as) two prevailing errors. To this end., I was going to submit the entire transcript in my possession, i.e., the judge’s decision. I'd get the whole thing, likely.

I guess maybe I don’t understand what is meant by “statement of facts.” Where you tell what happened. There is also statement of the case, which is the procedural history of the case, as opposed to facts of substance/the merits.

Up until this point, the definition I was using came from a guideline paper I received from the trial court. It says,

“(When notice of appeal is given.) If a record was made of the trial by the court reporter and you wish this to be included in the appeal, you must order this from the court reporter and pay the reporter for transcribing the Statement of FactsOK, that is the transcript. But if you look at your own Brief, do you not have a concise statement of the relevant facts you want the court to specifically absorb , as it pertains to your issues on appeal?

 

If there was not a court reporter at your trial, and you with to have a statement of facts of the proceedings at trial, you must reach an agreed statement of facts with the prosecuting attorney.” But there was a court reporter at your trial.

Clearly the trial itself was captured by the court reporter, Yes. but the pre & post trial motion handling was not. No hearing?

 

What I perceive as egregious error occurred during motion consideration (except for when the trial judge put his foot in his month by saying there was no motion to quash filed, when in fact, there was one). Anyway, I asked the prosecutor if we could agree on certain things that happened during my pre-trial, but he won’t respond. And I understand why…because the items I’m asking him to agree on are errors that will damage the state’s position in defending the conviction in appeal. Maybe. But again, what does your notice say when prosecution doesn't respond or refuses to agree?

As lame as the trial judge was, even he ruled in my favor and granted sanctions against this prosecutor when he refused to voluntarily release his list of potential witnesses to me. This guy’s mission is to “convict” and not see that justice is done. I understand!

Anyway, as I understand it, if the prosecutor and I cannot agree, then there can be no “statement of facts.” Look at your brief. Here is a sample: LINK. I guess this guy is withholding cooperation as a tactic to keep pre-trial errors off the record and thereby not considered by the appeals court. NO, that makes no sense.

Can I put in there that: IT IS A FACT that I requested the prosecutor’s cooperation in agreeing on pre-trial events, but his cooperation was not forth coming? Or, maybe since there was no record of pre-trial events, can I use that as a basis for asking the appeals court to consider pre-trial matters (such as motions) on a de-novo basis? This is not making much sense to me - the whole point of appealing is because the other side does not agree. Ugh. Court reporter provides the transcript. What about this, "On XX date, Prosecutor was asked to dispute any part of this proposed transcription containing the Statement of Facts, with the understanding that if a failure to respond would be understood to mean that he had no dispute with the transcription included as such." Because Prosecutor has not submitted or otherwise indicated a dispute with the enclosed transcribed statement of facts, please accept this XX as the agreed to transcription/statement of facts.

 

But again, I'd still have a SOF in my brief, no? Where you included only the relevent facts germaine to your appeal issue? You agree? Or know?

Customer: replied 1 year ago.

Guess what?

The honorable prosecutor has blocked my email address from sending email to his courthouse email address. I can no longer use my email address to conduct routine communication with him. I wonder if he’s blocked me out of the courthouse server entirely so that I can no longer communicate with the court clerk?

 

Well, you’re partly right.

At this time, I don’t have the transcript of the whole trial (from start to finish). You ordered it and are waiting for it?
[Yes, I ordered the whole thing]

I guess maybe I don’t understand what is meant by “statement of facts.” Where you tell what happened. There is also statement of the case, which is the procedural history of the case, as opposed to facts of substance/the merits.
[Again, this explanation of SOF doesn’t really comport with the instruction sheet I got from the trial court]

“(When notice of appeal is given.) If a record was made of the trial by the court reporter and you wish this to be included in the appeal, you must order this from the court reporter and pay the reporter for transcribing the Statement of FactsOK, that is the transcript. But if you look at your own Brief, do you not have a concise statement of the relevant facts you want the court to specifically absorb , as it pertains to your issues on appeal?
[Within my brief, I address SOF individually as it relates to each issue.]

If there was not a court reporter at your trial, and you with to have a statement of facts of the proceedings at trial, you must reach an agreed statement of facts with the prosecuting attorney.” But there was a court reporter at your trial.
[Yes, there was, but the trial was useless because the court refused to consider the picture evidence.]

Clearly the trial itself was captured by the court reporter, Yes. but the pre & post trial motion handling was not. No hearing?
[Yes, there were two pre-trial hearings, but neither was recorded by the court reporter]

What I perceive as egregious error occurred during motion consideration (except for when the trial judge put his foot in his month by saying there was no motion to quash filed, when in fact, there was one). Anyway, I asked the prosecutor if we could agree on certain things that happened during my pre-trial, but he won’t respond. And I understand why…because the items I’m asking him to agree on are errors that will damage the state’s position in defending the conviction in appeal. Maybe. But again, what does your notice say when prosecution doesn't respond or refuses to agree?
[The sheet says nothing about recourse if the prosecutor and I can’t agree. To be frank, it infers I’m “SOL” if I can’t reach an agreement of SOF with prosecutor.]

 

Anyway, as I understand it, if the prosecutor and I cannot agree, then there can be no “statement of facts.” Look at your brief. Here is a sample: LINK. I guess this guy is withholding cooperation as a tactic to keep pre-trial errors off the record and thereby not considered by the appeals court. NO, that makes no sense.
[Makes sense to me. If you were the prosecutor and you abused your mission to seek justice, wouldn’t you attempt to hide your abuse?]

Can I put in there that: IT IS A FACT that I requested the prosecutor’s cooperation in agreeing on pre-trial events, but his cooperation was not forth coming? Or, maybe since there was no record of pre-trial events, can I use that as a basis for asking the appeals court to consider pre-trial matters (such as motions) on a de-novo basis? This is not making much sense to me - the whole point of appealing is because the other side does not agree. Ugh. Court reporter provides the transcript. What about this, "On XX date, Prosecutor was asked to dispute any part of this proposed transcription containing the Statement of Facts, with the understanding that if a failure to respond would be understood to mean that he had no dispute with the transcription included as such." Because Prosecutor has not submitted or otherwise indicated a dispute with the enclosed transcribed statement of facts, please accept this XX as the agreed to transcription/statement of facts.
[I like it - and I may try it, but first I need you to look at something]

But again, I'd still have a SOF in my brief, no? Where you included only the relevent facts germaine to your appeal issue? You agree? Or know?
[Yes, I agree]

Initially, I crafted a brief document that followed a template like what your link shows.

However, after being urged to include “all” points, I followed another template that I’m pasting in below. This is only a TEMPLATE. If I follow this temple, would I generally arrive at a document that confirms to the perimeters necessary to be an acceptable Appeals submission?

 

NO.(NNN) NNN-NNNN/p>

IN THE COURT OF APPEALS FOR

THE TWINFALLS MUNICIPAL COURT, DELORESCOUNTY

TWINFALLS, ARIZONA

XXXXX XXXXX,

Appellant

v.

THE STATE OF ARIZONA,

Appellee

APPELLANT'S BRIEF

On Appeal from the Twinfalls Municipal Court

of DeloresCounty, Arizona,

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

XXXXX XXXXX

XXXXX

Twinfalls, Arizona88727

Telephone: (XXX) XXX-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.

 

 

XXXXX XXXXX self-represented: Trial & Appeal

XXXXX

Twinfalls, Arizona88727

 

Bamie L. Plores Trial Counsel for the State

AssistantCity Attorney

 

Baime L. Plores Appellate Counsel for the State

AssistantCity Attorney

 

Twinfalls Municipal Court

Prosecutor's Office

P. O. Box 2135

Twinfalls, AZ88715

 

Table of Contents

 

Identity of Parties and Counsel ........................................................................................2

Statement of the Case......................................................................... ..............................4

Statement Regarding Oral Argument................................... ...........................................4

Issues Presented ............................................................................. ..................................4

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

Summary of the Argument .............................................................................................. 5

 

First Issue: The trial court abridged Appellant’s due-process rights by omitting Appellant’s motion to dismiss. ....................................................................................... 5

 

Second Issue: The trial court rendered a verdict that was contrary to the law and the evidence. .................................................................................... ...................................... 7

 

Third Issue: The trial court misunderstood Arizona Transportation Code: 552.002... 10

 

Forth Issue: Was the trial court consistent in evaluating its misinterpretation of Section 552.002? ........................................................................................................... 12

 

Fifth Issue: The trial court trial held the Appellant to a deliberation standard that was above “beyond a reasonable doubt”.................... ......................................................... 15

 

Sixth Issue: The trial court failed to correct to state’s inconsistent prosecution of Arizona Transportation Code: 552.002 based on evidence .......................................... 16

 

Seventh Issue: The trial court did not correct judgment’s misrecital that subjected Appellant to the same effect of additional judgments (without trial) ........................ 18

 

 

Prayer.............................................................................................................................. 20

 

Certificate of Service .................................................................................................... 20

 

Statement of the Case

The trial court convicted Appellant of “Failure to stop at a stop sign” and assessed punishment (a fine of $300.00). Appellant timely filed a notice of appeal.

(See judgment, attached as Exhibit D.)
(See notice of appeal, attached as Exhibit E.)

 

 

Statement Regarding Oral Argument

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

 

 

Issues Presented

First Issue: The Court abridged the Appellant's rights to due process and mistakenly claimed no motions to quash were filed, despite court records to the contrary showing a motion to dismiss had indeed been file. Therefore, the court's explanation based on these misrepresentations of the court record was erroneous and need to be reversed.

 

Second Issue: The trial court abused its discretion when it denied the Appellant's motion to vacate and motion for summary judgment despite being no material facts in dispute such that the summary judgment was warranted as a matter of law.

 

Third Issue: The trial court misunderstood Arizona Transportation Code: 552.002 in that the oral comments of the court consider factors not authorized by the statute for evaluating Appellant’s conduct. Specifically, the trial court’s explanation of its ruling cites an interpretation of Sec 552.002 where vehicle/pedestrian location (within the roadway) regulates right-of-way status. However, such interpretation erred because said statute contains no language where right-of-way status is conferred by virtue of location.

 

Forth Issue: The trial court contradicted its own misinterpretation of Section 552.002 (see: Third Issue) when it denied Appellant’s motion to vacate & motion for summary judgment because exhibits show no material facts in dispute such that the summary judgment was warranted as a matter of law, as well as, the trial court’s misunderstanding of law.

 

Fifth Issue:Denial of Appellant’s motion to vacate & motion for summary judgment that indicates: trial court held the Appellant to a deliberation standard that was above “beyond a reasonable doubt.”

 

Sixth Issue: Denial of Appellant’s motion for summary judgment that Indicates: The trial court allowed the state to violate its duty to seek justice (not conviction) because state’s prosecution was selective whereas the evidence was not selective. Based on evidence, the state omitted defendants and said omission inflicted Appellant with unequal justice as a matter of evidence.

 

Seventh Issue: Denial of Appellant’s “Motion for Judgment Nunc Pro Tunc” that indicate: The trial court abused its discretion by not correcting judgment’s misrecital that subjected Appellant to the same 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 of pre-trial & post-trial motion mishandling, miscitation of case history, and misinterpretation of Arizona Transportation Code: 552.002.

 

Argument

First Issue: Denial of Appellant’s motion to vacate (III.) & (IX.) where said denial indicates: the trial court abridged the Appellant's rights to due process and mistakenly claimed no motions to quash were filed, despite court records to the contrary showing a motion to dismiss had indeed been file. Therefore, the court's explanation based on these misrepresentations of the court record was erroneous and need to be reversed.

 

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: (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.

 

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 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.

· · · · · · · · · · · · 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

 

However, online case history found at:

https://www.twinfalls.arizona.gov/AmcPublicInquiry/query/psnquery.aspx?query=3&case=535475

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 HISTORY (excerpt)

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

XXXXX, XXXXX

$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.

 

Given that the trial court omitted said motion – while at the same time - indicating that said motion would have made a difference in its ruling; In the interest of justice & judicial economy –the appellate court should dismiss state’s complaint against Appellant. ELSE, per Rule 21.3 (b) 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.)

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

···

 

Second Issue: The trial court abused its discretion when it denied the Appellant's motion to vacate (itemsI. & II.) and motion for summary judgment despite being no material facts in dispute such that the summary judgment was warranted as a matter of law.

 

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: (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.” The basis of State’s case alleges Appellant violated statute by not affording pedestrians the right-of-way, but in order for the Appellant to be guilty of denying right-of-way to pedestrians, said pedestrians FIRST must statutorily possess right-of-way. However, said pedestrians did not posses right-of-way. Arizona 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. Said mode (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.

(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 also presents for determination the question whether Appellant’s picture handling technique (meant to aid the Court in locating relevant images within dark & rainy conditions) constitute a corruption of said picture so that the evidentiary value of the whole picture presentation is rendered useless. In this case, the answer is “NO.” Appellant’s picture handling technique utilized two sets of pictures: one set contained marking designed to aid the trial court in locating relevant images with said pictures; the second set was “raw” (no making). Appellant was justified in his picture handling technique because the pictures were taken in dark & rainy conditions. Moreover, if the trial court felt it would be compromised by viewing the marked picture set, nothing prevented the trial court from looking strictly at the unmarked set and posing questions about the location of relevant images. Given the dark & rainy conditions in which said pictures were taken, and given that the trial court is a professional fact-finder, the trial court should have “erred on the side of caution” and invited Appellant & the State to aid in the identification of pertinent images. At the end of said assistance, the trial court would still have been free to agree or disagree with either or both contributors.

 

In the interest of justice & judicial economy – the appellate court should dismiss state’s complaint against Appellant. ELSE, perRule 21.3 (h); 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)

 

 

Third Issue: The trial court misunderstood Arizona Transportation Code: 552.002 in that the oral comments of the court consider factors not authorized by the statute for evaluating Appellant’s conduct. Specifically, the trial court’s explanation of its ruling cites an interpretation of Sec 552.002 where vehicle/pedestrian location (within the roadway) regulates right-of-way status. However, such interpretation erred because said statute contains no language where right-of-way status is conferred by virtue of location.

 

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: (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 the trial court was able to evaluate Appellant’s compliance of Arizona Transportation Code: 552.002 – while at the same time – the trial court was in misunderstanding about the operation of that same statute. In this case, the answer is “NO.” The trial court’s explanation of its decision reveals misunderstanding of Section. 552.002. The trial court’s explanation cites an interpretation where vehicle/pedestrian location (within the roadway) regulates right-of-way.

· · · · · · · · · · · · 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

 

However, such interpretation is erred because Section. 552.002 does not contain language where right-of-way is regulated by location. Instead, Section. 552.002 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.” Trial court’s perception that statute allowed for the adjudication of “danger” indicates trial court did not interpret statute correctly when it rendered verdict:

· · · · · · · · · · · · 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

 

Lastly, the trial court’s willingness to exonerate Appellant (for reasons not found within statute) introduces the likely possibility that the trial court convicted Appellant (for reasons not found within statute).

 

 

· · · · · · · · · · · · 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

 

Therefore, statue misinterpretation is the apparent reason why trial court ruled against Appellant when such ruling was contrary to the law & the evidence.

 

In the interest of justice & judicial economy – the appellate court should dismiss state’s complaint against Appellant. ELSE, perRule 21.3 (h); Appellant should be granted a new trial so the trial court can issue a ruling that conforms to a correct interpretation of Section 552.002. OR, per RULE 320; judgment should be set aside for “good cause, and the Appellant granted a new trial on matters in controversy.

 

Forth Issue: The trial court contradicted its own misinterpretation of Section 552.002 (see: Third Issue) when it denied Appellant’s motion to vacate (itemsI. & II.) & motion for summary judgment because Exhibit “C” show no material facts in dispute such that the summary judgment was warranted as a matter of law and the trial court’s misinterpretation law.

 

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.

 

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: Did the trial court contradict its own misinterpretation of Section 552.002 when it found Appellant guilty of Failure to yield - Pedestrian with walk signal?

 

Section 552.002 clearly sets forth that right-of-way is regulated by the mode of the pedestrian signal control. However, for sake of argument, if it is assumed the trial court’s misinterpretation of statute is correct: Does the evidence support a finding of guilty? The answer is “NO.” Essentially, the trial court believes: right-of-way belongs to the pedestrian when two conditions exist: (1) a lane is open for occupation & use by said pedestrian; (2) there is rational competition between said pedestrian & a vehicle to occupy said lane at the same time. Therefore, did Appellant’s vehicle fail to afford right-of-way when a lane was open for occupation & use by a pedestrian where said pedestrian was in rational competition with Appellant’s vehicle to occupy said same lane at the same time? Exhibits “A,” “B,” & “C” attached to Appellant’s motion for summary judgment indicate the answer is “NO.”

 

The chronology relationship for said exhibits is established by a dimly illuminated metal container (probably a ground-mounted transformer). Appellant’s vehicle drove passed said container as it moved thru the intersection. Therefore, the container appears in each photo. The container’s changing location, within said photos, provides a basis for time progression where (A) is first, (B) is second, & (C) is last. In Exhibit “A,” the container is located at the intersection of axis’s where the horizontal axis would be near the double arrow or fast-forward symbol “>>” located within vertical toolbar on photo’s left side. The vertical axis would be under the number sequence “1.30.12.60D” in the command line inside the blue banner near on the top of picture. Appellant’s vehicle generally travelled from north to south so the picture with the greatest distance between the container & picture’s right border was taken first, and the picture with the shortest distance between the container & picture’s right border was taken last. To this end, Exhibits “A” & “C” are shown to be the first & last picture respectively.

 

Exhibit “A” attached to Appellant’s motion for summary judgment shows Appellant’s vehicle approaching a location where rational competition between a pedestrian and Appellant’s vehicle to occupy the same lane at the same time would occur. Exhibit “B” attached to Appellant’s same motion shows Appellant’s vehicle yielded while the faint silhouette of a pedestrian crossed in front of Appellant’s vehicle. Exhibit “C” attached to Appellant’s same motion shows Appellant’s vehicle proceeding thru intersection at a time when no pedestrians were reasonably visible.

 

If for sake of argument, if it is assumed there was yet another pedestrian that attempted to cross the lane where such an attempt would cause competition between pedestrian & Appellant’s vehicle to occupy the same lane at the same time: (1) Said attempt would be a violation of Section 552.002 because the pedestrian signal control was in a mode that statutorily prohibited said pedestrian from crossing lane, (2) Said attempt would not comport with the trial court’s misunderstanding of statue because one of the two necessary conditions is not available. Specifically, no lane is open for occupation & use. Exhibit “C” attached to Appellant’s motion for summary judgment indicate Appellant’s vehicle has crossed the intersection and is in full occupation of said lane. Said crossing by Appellant’s vehicle is evidenced by the absence of the “orange hand” of the pedestrian signal control (visible in Exhibits “A” & B”) but not visible in Exhibit “C.” The “orange hand” is not visible in Exhibit “C” because Appellant’s vehicle has passed the signal controller, and therefore passed thru a location where a rational competition between pedestrian & Appellant’s vehicle might have occurred. Natural law indicates that a pedestrian who attempts a lane crossing (when no lane is open for occupation & use) is attempting an irrational crossing. Therefore, any element of “danger” is self-imposed by the pedestrian and thereby not reasonably attributed to the Appellant. In the interest of justice & judicial economy – the appellate court should dismiss state’s complaint against Appellant. ELSE, perRule 21.3 (h); Appellant should be granted a new trial so the trial court can issue a ruling that conforms to a correct interpretation of Section 552.002. OR, per RULE 320; judgment should be set aside for “good cause, and the Appellant granted a new trial on matters in controversy.

 

Fifth Issue: Denial of Appellant’s motion to vacate (I.) & (II.) and motion for summary judgment that indicate: The trial court held the Appellant to a deliberation standard that was above “beyond a reasonable doubt.”

 

Standard of Review

In determining whether the evidence is legally sufficient to support a

conviction, a reviewing court must consider all of the evidence in the light

most favorable to the verdict and determine whether, based on that

evidence and reasonable inferences therefrom, a rational fact finder could

have found the essential elements of the crime beyond a reasonable doubt.

Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim. App. 2011) (citing Jackson v. Virginia,

443 U.S. 307, 319,XXXXX 2781, 2789, 61 L. Ed. 2d 560 (1979)); accord Miller v. State,

343 S.W.3d 499, 501 (Tex. App.—Waco 2011, pet. ref d).

 

 

This issue presents for determination the question whether the trial court subjected Appellant to a deliberation standard higher than “beyond a reasonable doubt” when it found the Appellant guilty of denying pedestrians right-of-way when no pedestrians were reasonably visible to Appellant. Exhibit “C” attached to Appellant’s summary judgment motion shows no pedestrians were reasonably visible to Appellant when Appellant’s vehicle proceeded thru the intersection. The idea that the Appellant was able to respond to pedestrians that he could not reasonably see is not an argument that affords the Appellant “reasonable doubt.” In the interest of justice – the Appellant should be granted a new trial so the trial court can base its ruling on an interpretation of law & evidence that affords Appellant reasonable doubt. OR, per rule 320, judgment should be set aside, and the Appellant granted a new trial on matters in controversy. (See Exhibit “C” in Appellant’s summary judgment motion)

 

Sixth Issue: The state violated its statutory duty to seek justice (not conviction) when it selectively prosecuted individuals implicated by evidence but omitted others. The state’s solo prosecution of Appellate implies Appellate is solely responsible for the alleged incident whereas evidence indicates Appellant is not solely responsible. The trial court erred by allowing such selective prosecution and thereby inflicted Appellant with unequal justice as a matter of evidence. Said affliction is a miscarriage of justice and needs to be reversed.

 

Applicable Law

I. SUBCHAPTER D. PROCEDURES IN MUNICIPAL COURT
Art. 45.201
. MUNICIPAL PROSECUTIONS. (d) It is the primary duty of a municipal prosecutor not to convict, but to see that justice is done.

 

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: Did the state abdicate its statutory duty to seek justice (not conviction) when is failed to prosecute all persons (implicated by evidence) of violating Sec. 552.002? In this case, the answer is “YES.” Appellant’s solo prosecution implied that evidence implicated only the Appellant and that Appellant was solely responsible for an event where a citation was issued. However, said prosecution does not comport with state’s duty to seek justice (not conviction). Exhibit “B” attached to Appellant’s summary judgment motion shows the faint silhouette of a pedestrian crossing in front of Appellant’s vehicle. Said crossing is a clear violation of Sec. 552.002 (that same statute the state accused Appellant of violating). Therefore, if the state’s is consistent in it’s adherence to it statutory duty to seek justice (not conviction) then other persons, implicated by evidence, must share in responsible for causing said event and should face prosecution.

 

The state alleges Appellant violated Arizona Transportation Code: 552.002. However, Exhibits “A,” “B,” & “C” attached to Appellant’s motion for summary show Appellant did not violate code. However, those same exhibits show that the pedestrian that produced said faint silhouette was clearly in violation of that same code:

(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.

 

Appellant has good reason to believe said silhouette belonged to a prosecution witness, and Appellant labeled said silhouette (in Exhibit “B”) in that manner. Moreover, this person was in the courthouse during Appellant’s trial. This person was one of two (non-police) witnesses who appeared for on state’s behalf. How then did the state fulfill its statutory duty “…not to convict, but to see that justice is done” when it summoned said witness to appear, but did not call said witness to testify and thereby affirm or discredit Appellant’s labeling and therefore exonerate or identify another suspect for prosecution? Again, how did the state fulfill its statutory duty “…not to convict, but to see that justice is done” when it prosecuted paragraph (B) of Sec. 552.002 but did not prosecute paragraph (C) of that same statute? Lastly, why did the trial court not disincentivise state’s abdication of duty by rendering a verdict that rescued Appellant from unequal justice as a matter of evidence?

 

The fact that two people: in the same location; at the same time; and at the same alleged event do not receive equal justice, as a matter of evidence, should give all citizens concern. Selective prosecution may be justified in extenuating circumstances such as the prosecution of a suspected drug dealer, but Appellant was not accused of selling drugs. Appellant was accused of “Failure to yield - Pedestrian with walk signal.” In the interest of justice & judicial economy – the appellate court should dismiss state’s complaint against Appellant. 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, & C in Appellant’s summary judgment motion)

 

Seventh Issue: Denial of Appellant’s “Motion for Judgment Nunc Pro Tunc” that indicate: The trial court abused its discretion by not correcting judgment’s misrecital that subjected Appellant to the same effect of additional judgments (without trial).

 

Standard of Review

A trial court is not without authority to correct the minutes of his court so as to make them truly reflect the judgments actually pronounced.

[JOHNSTON v. STATE, 323 S.W.2d 449 (1959) Randolph JOHNSTON, Appellant, v. STATE of Arizona, Appellee. No. 30373. Court of Criminal Appeals of Arizona. March 11, 1959; Paragraph 11; sentence 1.] (See: JOHNSTON v. STATE, in Appellant’s Motion for Judgment Nunc Pro Tunc)

 

On 01/22/13, the court’s minutes which describe judgment was recited to the Arizona Department of Public Safety (DPS). However, said recital functioned as an (effectual) judgment in-favor of allegations not tried by the trial court because; (1) accompanying subordinate reports (Events: 2, 3, & 4) meant to add contextual detail to the trial court’s decision also attribute judgments “fatal” & “incapacitating injury accident” to Appellant. No trial was conducted that included said allegations, and the Appellant denies allegations alleged by said subordinate reports. Appellant demands trial before said allegations are presented alongside trial court’s judgment (in one message) where the entire message appears in an official record, and the whole message is interpreted to be the judgment of the trial court. Said error is not a harmless error because (DPS) notified Appellant that he is approaching surcharge eligibility because of “numerous events” within the past 36 months. The same amounts to the multiple reporting of judgments resulting from Double Jeopardy because Appellant had no events within the past 36 months (excluding this event); (2) Trials court’s judgment is misrecited. Judgment did not indicate Appellant is guilty of “FAIL TO YIELD ROW TO PEDESTRIAN AT SIGNAL INTERSECT.” Rather, judgment states Appellant is guilty of Failure to yield - Pedestrian with walk signal.”

 

Misrecital of charge is not a harmless error because misrecital does not reflect the “conditional” functionality of charge as found in judgment. The judgment contained the preposition “WITH,” and said word signaled when right-of-way status belonged to pedestrians, i.e., “…WITH WALK SIGNAL.” Without said preposition (or similar word) to reflect charges’ conditional operation, readers are left to think pedestrians possessed right-of-way status by virtue of their location (at an intersection with a control signal) and that Appellant ignored said location. In the interest of justice & judicial economy – the appellate court should dismiss state’s complaint against Appellant. OR, per RULE 320; judgment should be set aside for “good cause, and the Appellant granted a new trial on matters in controversy. (See Motion for Judgment Nunc Pro Tunc, attached as Exhibit E.)

 

 

 

Prayer

 

WHEREFORE, PREMISES CONSIDERED, Appellant XXXXX XXXXX asks the

appellate Court to: (1) dismiss state’s action 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,

 

 

____________________________

XXXXX XXXXX,

XXXXX

Twinfalls, Arizona88727

Telephone: (XXX) XXX-XXX

 

 

 

 

 

 

Certificate of Service

 

The undersigned hereby certifies that a true and correct copy of this brief was served by mail to counsel for the State, Bamie L. Plores, Twinfalls Municipal Court, P. O. Box 2135, Twinfalls, AZ 88715 on March ___ 2013.

 

 

 

____________________________

XXXXX XXXXX

 

Expert:  AlexiaEsq. replied 1 year ago.

Guess what?

The honorable prosecutor has blocked my email address from sending email to his courthouse email address. I can no longer use my email address to conduct routine communication with him. I wonder if he’s blocked me out of the courthouse server entirely so that I can no longer communicate with the court clerk?

Where you harassing him or overly intrusive?

I don't think he has control of the courthouse servers, though.
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Category: Criminal Law
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Customer: replied 1 year ago.

Where you harassing him or overly intrusive?

 

NO! He did this in retribution because I used the email record earlier as evidence when he refused to respond to my emailed request that he provide me with the names of potential state’s witnesses. The trial judge sanctioned him. He’s doing the same thing again. Remember, I told you that I asked him (actually emailed him) a question: Can he & I can agree that certain actions occurred during pre-trial? Blocking my email is obviously his way of saying “NO.”

 

ALSO,

I think I figured out the disconnect regarding “statement of fact.”

I interpret this phrase, as it’s used by you and other experts to mean: “Appellant’s statement of fact, regarding the alleged event in question.”

 

Whereas, when the trial court used the phrase: I think it meant: “Appellant & Prosecutor’s joint statement of fact, about what occurred at trial because no other trial record exist.”

 

Make sense?

Expert:  AlexiaEsq. replied 1 year ago.

Where you harassing him or overly intrusive?

NO! He did this in retribution because I used the email record earlier as evidence when he refused to respond to my emailed request that he provide me with the names of potential state’s witnesses.

The trial judge sanctioned him. He’s doing the same thing again. Remember, I told you that I asked him (actually emailed him) a question: Can he & I can agree that certain actions occurred during pre-trial? Blocking my email is obviously his way of saying “NO.” Did he ever Unblock you after the first block that he got sanctioned for?

ALSO,

I think I figured out the disconnect regarding “statement of fact.”

I interpret this phrase, as it’s used by you and other experts to mean: “Appellant’s statement of fact, regarding the alleged event in question.” I think they mean this is the one you use in YOUR brief...

Whereas, when the trial court used the phrase: I think it meant: “Appellant & Prosecutor’s joint statement of fact, about what occurred at trial because no other trial record exist.” But since a trial record does exist, this would be moot, no?

Make sense? Yep :)

But again, even if there weren't a trial record, if the 2 sides simply don't agree on stipulated facts (and procedural ones are hard to dispute), they can hardly prohibit you from appealing based on that. It is ludicrous! That would mean no defendent can appeal, because they could be prevented from doing so by mere inaction of the state.

Customer: replied 1 year ago.

Did he ever Unblock you after the first block that he got sanctioned for?


He didn’t block me the first time. He just ignored my emails. New he’s fixed it where he can’t be cited for ignoring my email because there will be no record of him ignoring them… very classy guy to abuse a non-lawyer this way don’t you think? Be nice if you'd comment on that Arizona template.

Expert:  AlexiaEsq. replied 1 year ago.
Do you get a "rejection" type email so you know he is blocking you? Maybe that could be used, should you need to do something.

What Arizone Template?

I can't provide document review (against the rules), but if you want me to answer a specific question on a specific sentence of something, sure thing, just cut and paste it below.
Customer: replied 1 year ago.

Do you get a "rejection" type email so you know he is blocking you?
Maybe that could be used, should you need to do something.


Yes, I get a message from the gate keeper indicating I’m blocked.


But I don’t think I should focus on it. I don’t believe he’d do it if my appeal wasn’t meritorious. He’s worried I’ll beat him. With God’s grace - I will!


I know I’m taking up a lot of your time, but I’m a product of your empowerment.


I’m near the finish line. I hope you’ll help me crossover.

Expert:  AlexiaEsq. replied 1 year ago.
You bet, lol. Flattery will get you everywhere, lol.
Customer: replied 1 year ago.

Small problem: I must have mis communicated you into thinking this was a civil issue.


It’s criminal so I now know I’ve been misreciting civil rule 320 as a basis for my new trial in criminal court.


“Yes?”

Expert:  AlexiaEsq. replied 1 year ago.
You and I have only discussed criminal. So I am not sure what you are talking about with civil. I do vaguely remember another expert you discussed this with pointing to civil rules, but I thought we cleared that up way back when.
Customer: replied 1 year ago.

The rule 320 thing pre-dated my conversation with the other expert. It came up about the same you introduced me to the motion to vacate, or in the alternative to a motion for new trial (nifty motion) thanks!

 

No worries. I cited it in my motion to vacate, but nobody’s reads my stuff at Austin municipal court. Proof is they found my guilty – right;-).

 

I just finished the brief a little while ago. Too bad you can’t see it. It presents "8" slam-dunk issues. Case law, applicable law, the whole sha-bang! I think you’d be proud. Just waiting for the transcript now. The court reporter doesn’t return my phone calls. I’m beginning to think I should file for extra time. Do you have a link to something I can look at to help with filing for extra time?

Expert:  AlexiaEsq. replied 1 year ago.
OK, as you know, I only answer legal questions here, and did not engage in any document review for you - as such, I don't believe I was involved in any Rule 320 questions you may have had - although I see you had referenced an AZ case once with it (although I didn't read it or address it, since it was not a legal question I could answer). I can't locate any post where I discussed it, but if you have one where I did, can you link it here?

In any event, look at this motion for extension of time to file brief. Be sure to read up on the referenced rules, to make sure they are good/applicable, and be sure to make sure your motion addresses your court/case/caption, etc. The only glitch I see is if you don't have a reason or don't really need the extension?
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Customer: replied 1 year ago.

Good thing I didn’t trust that AZ case. AZ & TX are very different states. What I think happened is you encouraged me to read the rules (as you should) but being that the law is vast and my understand is infantile - in my research I confused the civil with the criminal. I apologize for even mentioning it.

 

Question: I want to make sure I’m not being misunderstood. I need more time to comply with trial court’s deadline for submitting the transcript to them (not the appeals court). As I read the trial court’s instruction, the transcript is submitted to the trial court for forwarding (thru it) to the appeal’s court. This is consistent with the table of contents I’ve looked at in appeals that I’ve used as templates. No table of contents indicated the court report’s transcript was attached to the appeal. The trial court instructions indicate I must submit the transcript within 60 days of filing my “notice of appeal.”

Therefore, it seems like I’d be requesting more time from the trial court (not the appeals court).

“YES?”

Expert:  AlexiaEsq. replied 1 year ago.

Good thing I didn’t trust that AZ case. AZ & TX are very different states. What I think happened is you encouraged me to read the rules (as you should) Unfortunately, you must, just as lawyers must.

but being that the law is vast and my understand is infantile - in my research I confused the civil with the criminal. It happens. I apologize for even mentioning it. No apology needed.

Question: I want to make sure I’m not being misunderstood. I need more time to comply with trial court’s deadline for submitting the transcript to them (not the appeals court). Ah, OK, for whatever reason I thought you were seeking extension to file brief.


When you can, in the future, please Link the rule please. (trial court rule). It always goes faster if you can link me what you are pointing to, otherwise I have to locate, figure which one you may be referring to, etc. In any event, I think you mean this one maybe: Sec. 30.00020. TRANSFER OF RECORD.?

 

As I read the trial court’s instruction, the transcript is submitted to the trial court for forwarding (thru it) to the appeal’s court. Yes, as I understand it also.


This is consistent with the table of contents I’ve looked at in appeals that I’ve used as templates. No table of contents indicated the court report’s transcript was attached to the appeal. Correct. It can be HUGE, lol.The trial court instructions indicate I must submit the transcript within 60 days of filing my “notice of appeal.” That rule above, yes?


Therefore, it seems like I’d be requesting more time from the trial court (not the appeals court). Yes, if you think you are violating a municipal court rule and not the appeals court rule (which I think gives 120 days generally). But really, perhaps motioning both? I have never been in such a situation. But if I were motioning the trial court, I'd make that motion (and they typically will look the same as any other motion, structure wise, and since you already did a motion to the trial court, you should have that template - remember template is the structure, not the details).

 

“YES?” It would seem that way. But, you may also be coming up on a corresponding delay with appellate deadlines. How can you finish your brief without the transcript - something pertinent is likely in there, no? I wonder if you can motion for sanctions against the reporter and/or, IF the reporter won't provide the transcript, I'd argue that I am entitled to a new trial, similar to when there is a court of no record. Does that make sense?


You may also want to file a complaint against the incompetent: http://www.crcb.state.tx.us/complaints.asp

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Customer: replied 1 year ago.

How can you finish your brief without the transcript - something pertinent is likely in there, no?

 

This goes back to what I was trying to explain earlier. I like your question because to answer it, I must ask you to critique the following issue/arguments to determine whether each meets the standard set forth in the following legal question.

 

Question: These arguments were designed so that the appeals court does not need a transcript to consider Appellant’s allegation of error. DO YOU GENERALLY AGREE (yes or no) that these complaints are worded such that (except for #7 maybe) the appeals court only need: case history record, a copy of cited motions, and a partial transcript - namely the judge’s comments at ruling (assuming picture evidence, attached to motions, supports Appellant's contention)? REMEMBER: When the trial court considered motions, the reporter was not recording!

 

If your answer is “NO” (except for #7) then maybe you feel some latitude to explain why said issue/complaint needs a transcript for validation.

 

Reasonable?

_________________________________________________________________________________________

 

First Issue: The trial court confessed awareness that state’s charge did not comport with the state’s case, but it convicted Appellant nevertheless. Therefore, trial court's conviction is reversible error and needs to be reversed.

 

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: (h) when the verdict is contrary to the law and the evidence.

 

This issue presents for determination the question of whether the trial court committed reversible error when it convicted Appellant of state’s charge - while at the same time – it expressed a belief that state’s charge did not comport with the law and the evidence.

 

In explaining its ruling on January 10, 2013; the trial court announced that it believed the state should have charged Appellant with a different allegation than the actual charge that was filed against Appellant:

 

 

· · · · · · · · · · · · 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

·

 

Nevertheless, state charged Appellant with “Failure to yield - Pedestrian with walk signal.” Given that the trial court confessed awareness that Appellant was tried for a charge that is inconsistent with the law and the evidence, the trial court committed reversible error by finding Appellant guilty. In the interest of justice & judicial economy –the appellate court should dismiss state’s complaint against Appellant. OR, per Rule 21.3(h) Appellant’s should be granted a new trial so the trial court can issue a ruling that comports with the law and the evidence.

 

Second Issue: The trial court abridged the Appellant's rights to due process and mistakenly claimed no motion to quash was filed, despite court records to the contrary showing a motion to dismiss had indeed been file. Therefore, the court's explanation based on these misrepresentations of the clerk’s record was erroneous and need to be reversed.

 

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: (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.

 

This issue presents for determination the question of 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 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.

 

· · · · · · · · · · · · 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

·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.

 

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 HISTORY (excerpt)

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

Xxxxxxxxx, Xxxxx

$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 Appellant’s motion to dismiss received no ruling.

 

Given that the trial court omitted said motion – while at the same time - indicating that said motion would have made a difference in its ruling; In the interest of justice & judicial economy –the appellate court should dismiss state’s complaint against Appellant. OR, per Rule 21.3(b) 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.

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

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

···

 

Third Issue: The trial court abused its discretion when it denied Appellant's request for Directed Verdict (aka: summary judgment motion) despite being no material facts in dispute such that the Directed Verdict was warranted as a matter of law.

 

Applicable Law

Art. 45.032. DIRECTED VERDICT.If, upon the trial of a case in a justice or municipal court, the state fails to prove a prima facie case of the offense alleged in the complaint, the defendant is entitled to a directed verdict of "not guilty."Added by Acts 1969, 61st Leg., p. 1655, ch. 520, Sec. 2, eff. June10, 1969. Renumbered fromVernon's Ann.C.C.P. art. 45.031 andamended by Acts 1999, 76th Leg., ch. 1545, Sec. 30, eff. Sept. 1,1999.

 

Rule 21.3 Grounds

The defendant must be granted a new trial, or a new trial on punishment, for any of the following reasons: (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 of whether Appellant can be guilty of denying right-of-way to pedestrians when said pedestrians did not statutorily posses right-of-way. In this case, the answer is “NO.” The basis of State’s case alleges Appellant violated statute by not yielding to pedestrians with right-of-way. However, before Appellant can be guilty of not yielding to pedestrians with right-of-way, said pedestrians first must statutorily 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 crosswalk control displaying the “WALK” signal. Exhibits “A & B” attached to Appellant’s summary judgment motion clearly show the pedestrian crosswalk 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. Said mode (whether flashing or solid) statutorily ordered pedestrians not to cross street, but pedestrians were ordered to seek a safety island. Therefore, Appellant did not deny pedestrians right-of-way because said pedestrian(s) did not possess right-of-way:

 

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

(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 also presents for determination the question of whether Appellant’s picture handling technique (meant to aid the Court in locating relevant images within dark & rainy conditions) constitute a corruption of said picture so that the evidentiary value of the whole picture presentation is rendered useless. In this case, the answer is “NO.” Appellant’s picture handling technique utilized two sets of pictures: one set contained marking designed to aid the trial court in locating relevant images with said pictures; the second set was “raw” (no making). Appellant was justified in his picture handling technique because the pictures were taken in dark & rainy conditions. Moreover, if the trial court felt it would be compromised by viewing the marked picture set, nothing prevented the trial court from looking strictly at the unmarked set and posing questions about the location of relevant images. Given the dark & rainy conditions in which said pictures were taken, and given that the trial court is a professional fact-finder, the trial court should have “erred on the side of caution” and invited Appellant & the State to aid in the identification of pertinent images. At the end of said assistance, the trial court would still have been free to agree or disagree with either or both contributors. In the interest of justice & judicial economy – the appellate court should dismiss state’s complaint against Appellant. OR, per Rule 21.3 (h); 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).

(See exhibits A & B attached to Appellant’s summary judgment motion.)

 

Forth Issue: The trial court misunderstood Texas Transportation Code: 552.002 in that the oral comments of the court consider factors not authorized by the statute for evaluating Appellant’s conduct. Specifically, the trial court’s explanation of its ruling cites an interpretation of Sec 552.002 where vehicle/pedestrian location (within the roadway) regulates right-of-way status. However, such interpretation erred because said statute contains no language where right-of-way status is conferred by virtue of location.

 

 

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: (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 of whether the trial court was able to evaluate Appellant’s compliance of Texas Transportation Code: 552.002 – while at the same time – the trial court was in misunderstanding about the operation of that same statute. In this case, the answer is “NO.” The trial court’s explanation of its decision reveals misunderstanding of Section. 552.002. The trial court’s explanation cites an interpretation where vehicle/pedestrian location (within the roadway) regulates right-of-way.

· · · · · · · · · · · · 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

 

However, such interpretation is erred because Section. 552.002 does not contain language where right-of-way is regulated by location in roadway. Instead, Section. 552.002 clearly sets forth that pedestrian right-of-way is determined by the mode of the pedestrian crosswalk 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” (see: Fifth Issue, paragraph 5) Trial court’s perception that statute allowed for the adjudication of “danger” indicates trial court did not interpret statute correctly when it rendered verdict:

 

· · · · · · · · · · · · 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

 

Lastly, the trial court’s willingness to exonerate Appellant (for reasons not found within statute) introduces the plausible explanation that the trial court convicted Appellant (for reasons not found within statute).

 

· · · · · · · · · · · · 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

 

Therefore, statue misinterpretation is the apparent reason why trial court ruled against Appellant when such ruling was contrary to the law & the evidence. In the interest of justice & judicial economy – the appellate court should dismiss state’s complaint against Appellant. OR, per Rule 21.3(h); Appellant should be granted a new trial so the trial court can issue a ruling that conforms to a correct interpretation of Section 552.002.

 

Fifth Issue: The trial court contradicted its stated misinterpretation of Section 552.002 (see: Third Issue) when it denied the Appellant's request for Directed Verdict (aka: summary judgment motion) because Exhibit “C” attached to said motion shows no material facts in dispute such that the Directed Verdict was warranted as a matter of law, and the trial court’s misinterpretation law.

 

Applicable Law

Art. 45.032. DIRECTED VERDICT.If, upon the trial of a case in a justice or municipal court, the state fails to prove a prima facie case of the offense alleged in the complaint, the defendant is entitled to a directed verdict of "not guilty."Added by Acts 1969, 61st Leg., p. 1655, ch. 520, Sec. 2, eff. June10, 1969. Renumbered fromVernon's Ann.C.C.P. art. 45.031 andamended by Acts 1999, 76th Leg., ch. 1545, Sec. 30, eff. Sept. 1,1999.

 

Rule 21.3 Grounds

The defendant must be granted a new trial, or a new trial on punishment, for any of the following reasons: (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: Did the trial court contradict its own misinterpretation of Section 552.002 when it found Appellant guilty of Failure to yield - Pedestrian with walk signal?

 

Section 552.002 clearly sets forth that right-of-way is regulated by the mode of the pedestrian crosswalk signal control. However, for sake of argument, if it is assumed the trial court’s misinterpretation of statute is correct: Does the evidence support a finding of guilty? The answer is “NO.” Essentially, the trial court believes: right-of-way is attributed to the pedestrian when two conditions exist: (1) a lane is open for occupation & use by said pedestrian; (2) there is rational competition between said pedestrian & a vehicle to occupy said lane at the same time. Therefore, did Appellant’s vehicle fail to afford right-of-way when a lane was open for occupation & use by a pedestrian where said pedestrian was in rational competition with Appellant’s vehicle to occupy said same lane at the same time? Exhibits “A, B, & C” attached to Appellant’s motion for summary judgment indicates the answer is “NO.”

 

The chronology relationship for said exhibits is established by a dimly illuminated metal container (probably a ground-mounted transformer). Appellant’s vehicle drove passed said container as it moved thru the intersection. Therefore, the container appears in each photo. The container’s changing location, within said photos, provides a basis for time progression where (A) is first, (B) is second, & (C) is last. In Exhibit “A,” the container is located at the intersection of imaginary axis’s where the horizontal axis would be near the double arrow or fast-forward symbol “>>” (located within vertical toolbar on photo’s left side). The vertical axis would be under the number sequence “1.30.12.60D” in the command line (inside the blue banner near on the top of picture). Appellant’s vehicle generally travelled from north to south so the picture showing the greatest distance between the container & picture’s right border was taken first, and the picture showing the shortest distance between the container & picture’s right border was taken last. To this end, Exhibits “A & C” are shown to be first & last respectively.

 

Exhibit “A,” attached to Appellant’s motion for summary judgment, shows Appellant’s vehicle approaching a location where a rational competition between a pedestrian & Appellant’s vehicle to occupy the same lane at the same time would occur. Exhibit “B,” attached to Appellant’s same motion, shows Appellant’s vehicle yielded while the faint silhouette of a pedestrian crossed in front of Appellant’s vehicle. Exhibit “C,” attached to Appellant’s motion, shows Appellant’s vehicle proceeding thru intersection at a time when no pedestrians were reasonably visible.

 

When the second pedestrian attempted a crossing lane where such attempt would cause competition between said pedestrian & Appellant’s vehicle to occupy the same lane at the same time: (1) Said attempt was a violation of Section 552.002(c) because the pedestrian crosswalk signal control was in a mode that statutorily prohibited said pedestrian from crossing lane; (2) Said attempt did not comport with the trial court’s misunderstanding of statue because one of two necessary conditions is not available. Specifically, no lane is open for occupation & use by a pedestrian. Exhibit “C” indicates Appellant’s vehicle has crossed the intersection and is in full occupation of said lane. Said crossing by Appellant’s vehicle is evidenced by the absence of the “orange hand” of the pedestrian crosswalk signal control. The “orange hand” is visible in Exhibits “A & B”) but not visible in Exhibit “C.” Neither is the “Walk” signal visible in Exhibit “C” because Appellant’s vehicle has passed the pedestrian crosswalk signal control, and therefore passed thru a location where a rational competition between pedestrian & Appellant’s vehicle might have occurred. Natural law indicates that a pedestrian who attempts a lane crossing (when no lane is open for occupation & use by said pedestrian) is attempting an irrational crossing. Therefore, any element of “danger” is self-imposed by the second pedestrian and thereby not reasonably attributed to Appellant. In the interest of justice & judicial economy – the appellate court should dismiss state’s complaint against Appellant. OR, per Rule 21.3(h); Appellant should be granted a new trial so the trial court can issue a ruling that conforms to a correct interpretation of Section 552.002.

 

Sixth Issue: Denial of Appellant's request for Directed Verdict (aka: summary judgment motion) that indicates: The trial court held the Appellant to a deliberation standard that was above “beyond a reasonable doubt.”

 

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: (h) when the verdict is contrary to the law and the evidence.


 

Standard of Review

In determining whether the evidence is legally sufficient to support a

conviction, a reviewing court must consider all of the evidence in the light

most favorable to the verdict and determine whether, based on that

evidence and reasonable inferences therefrom, a rational fact finder could

have found the essential elements of the crime beyond a reasonable doubt.

Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim. App. 2011) (citing Jackson v. Virginia,

443 U.S. 307, 319,XXXXX 2781, 2789, 61 L. Ed. 2d 560 (1979)); accord Miller v. State, 343 S.W.3d 499, 501 (Tex. App.—Waco 2011, pet. ref d).

 

This issue presents for determination the question of whether the trial court subjected Appellant to a deliberation standard higher than “beyond a reasonable doubt” when it found the Appellant guilty of denying pedestrians right-of-way when no pedestrians were reasonably visible to Appellant. Exhibit “C,” attached to Appellant’s summary judgment motion, shows no pedestrians were reasonably visible to Appellant when Appellant’s vehicle proceeded thru the intersection. The idea that the Appellant was able to respond to pedestrians that he could not reasonably see is not an argument that affords the Appellant “reasonable doubt.” In the interest of justice – the Appellant should be granted a new trial so the trial court can base its ruling on an interpretation of law & evidence that affords Appellant reasonable doubt. OR, per Rule 21.3(h); Appellant should be granted a new trial so the trial court can issue a ruling that conforms to the law and the evidence. (See exhibit C attached to Appellant’s summary judgment motion.)

 

Seventh Issue: The state violated its statutory duty to seek justice (not conviction) when it selectively prosecuted Appellant, as a matter of evidence, but failed to prosecute another individual despite evidence. Said violation, and subsequent conviction, implies Appellant is solely responsible for the alleged incident despite evidence to the contrary. The trial court’s failure to curtail state’s violation allowed Appellant to be inflicted with unequal justice under the law, as a matter of evidence. Said affliction is a miscarriage of justice and needs to be reversed.

 

Applicable Law

I. SUBCHAPTER D. PROCEDURES IN MUNICIPAL COURT
Art. 45.201
. MUNICIPAL PROSECUTIONS. (d) It is the primary duty of a municipal prosecutor not to convict, but to see that justice is done.

 

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: Did the state abdicate its statutory duty to seek justice (not conviction) when is failed to prosecute all persons (implicated by evidence) of violating Sec. 552.002? In this case, the answer is “YES.” Appellant’s solo prosecution implied that evidence implicated only the Appellant, and that Appellant was solely responsible for an event where a citation was issued. However, said prosecution does not comport with state’s duty to seek justice (not conviction). Nor does Appellant’s solo prosecution comport with the evidence. Exhibit “B” attached to Appellant’s summary judgment motion shows the faint silhouette of a pedestrian crossing in front of Appellant’s vehicle. Said crossing is clearly a violation of Sec. 552.002 (that same statute state accused Appellant of violating). Therefore, if the state’s is consistent in following its statutory duty to seek justice (not conviction) then other persons, warranted by evidence, must share in responsibility for causing said event and face prosecution.

 

The state alleges Appellant violated Texas Transportation Code: 552.002. However, Exhibits “A, B, & C” attached to Appellant’s motion for summary show Appellant did not violate code. However, those same exhibits show that the pedestrian that produced said faint silhouette was clearly in violation of that same code:

(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.

 

Appellant has good reason to believe said silhouette belonged to a prosecution witness, and Appellant labeled said silhouette (in that manner) in Exhibit “B” attached to Appellant’s motion for summary. Moreover, Appellant believes this person was in the courthouse during Appellant’s trial. Appellant further believes this person was one of two (non-police) witnesses that were prepared to appear on state’s behalf. So how did the state fulfill its statutory duty “…not to convict, but to see that justice is done” when it summoned said witness to appear, but did not call said witness to testify and thereby affirm or discredit Appellant’s labeling of Exhibit “B,” attached to Appellant’s motion for summary and thereafter exonerate or identify another suspect for prosecution? Again, how did the state fulfill its statutory duty “…not to convict, but to see that justice is done” when it prosecuted Appellant for violating paragraph (B) of Sec. 552.002, but state did not prosecute person depicted in said exhibit for violating paragraph (C) of that same statute? Lastly, why did the trial court not curtail state’s abdication of duty by rendering a verdict that rescued Appellant from unequal justice under the law as a matter of evidence?

 

The fact that two people: in the same location; at the same time; and at the same alleged event do not receive equal justice under the law (as a matter of evidence) is an affront to the municipal prosecutor’s statutory duty, Art. 45.201.(d),to seek justice (not conviction). Selective prosecution may be justified in extenuating circumstances such as the prosecution of a suspected drug dealer, but Appellant was not accused of selling drugs. Appellant was accused of “Failure to yield - Pedestrian with walk signal.” In the interest of justice & judicial economy – the appellate court should dismiss state’s complaint against Appellant. OR, Appellant should be granted a new trial. (See exhibits A, B, & C attached to Appellant’s summary judgment motion)

 

Eighth Issue: Denial of Appellant’s Motion for Judgment Nunc Pro Tunc that indicate: The trial court abused its discretion by not correcting judgment’s misrecital that subjected Appellant to the same effect of additional judgments (without trial).

 

Standard of Review

A trial court is not without authority to correct the minutes of his court so as to make them truly reflect the judgments actually pronounced.

[JOHNSTON v. STATE, 323 S.W.2d 449 (1959) Randolph JOHNSTON, Appellant, v. STATE of Texas, Appellee. No. 30373. Court of Criminal Appeals of Texas. March 11, 1959; Paragraph 11; sentence 1.] (See: JOHNSTON v. STATE, in Appellant’s Motion for Judgment Nunc Pro Tunc)

 

 

On 01/22/13, the court’s minutes which describe judgment was recited to the Texas Department of Public Safety (DPS). However, said recital functioned as an (effectual) judgment in-favor of allegations, not tested by the trial court, because; (1) accompanying subordinate reports (Events: 2, 3, & 4) meant to add contextual detail to the trial court’s decision also attribute the judgments “fatal” & “incapacitating injury accident” to Appellant. No trial was conducted that included said allegations, and Appellant denies such allegations alleged by said subordinate reports. Appellant demands trial before said allegations are presented alongside trial court’s judgment (in one message) where the entire message appears in an official record, and the whole message is interpreted to be the judgment of the trial court. Said error is not a harmless error because (DPS) notified Appellant that he is approaching surcharge eligibility because of “numerous events” within the past 36 months. The same amounts to the multiple reporting of judgments resulting from Double Jeopardy because Appellant had no events within the past 36 months (excluding this event); (2) Trial court’s judgment was recited incorrectly to (DPS). Judgment did not indicate Appellant is guilty of “FAIL TO YIELD ROW TO PEDESTRIAN AT SIGNAL INTERSECT.” Rather, judgment states Appellant is guilty of “Failure to yield - Pedestrian with walk signal.”

 

Misrecital of charge is not a harmless error because misrecital does not reflect the “conditional” functionality of charge as found in judgment. The judgment contained the preposition “WITH,” and said word signaled when right-of-way status belonged to pedestrians, i.e., “…WITH WALK SIGNAL.” Without said preposition (or similar word) to reflect charges’ conditional operation, readers are left to think pedestrians possessed right-of-way status by virtue of their location (at an intersection with a control signal) and that Appellant ignored said location. In the interest of justice & judicial economy – the appellate court should dismiss state’s complaint against Appellant.

(See Motion for Judgment Nunc Pro Tunc, attached as Exhibit F.)

 

Expert:  AlexiaEsq. replied 1 year ago.
I'm sorry, I don't have time to critique it - 1 kid just back from the doctor with the real dreaded flu (and that Tamiflu, uggh! expensive stuff!). But, we are not permitted to engage in document review anyway, as that may slip into "legal advice" vs. legal information.

A pointed question at a particular sentence perhaps, but 'advise' on specific document overall, I'd have to hesitate on. But, if you want, put a pointed question into a new post - this one is so long I am having difficulty scrolling up and down and up and down to look at prior sections.

I hope you are avoiding the flu - is it going on around you? It is nuts around here.
Customer: replied 1 year ago.

I'm sorry, I don't have time to critique it


No worries. Based on the collective input I’ve received, I think it meets the test.


Still, I’d like to have had momma’s input.


 


- 1 kid just back from the doctor with the real dreaded flu (and that Tamiflu, uggh! expensive stuff!).


I feel you. When the company dumped me, I lost my insurance. Been doing the doctor thing strictly out of pocket. Having to make difficult choices (if you know what I mean). Got a compassionate doctor though – and it makes a difference$


 


I think you all have put me where I need to be. I’m more grateful than any of you can ever know.


Planning to submit it next week.


 


I’ll let you know how it shakes out.


- Eric

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