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Law Educator, Esq.
Law Educator, Esq., Attorney
Category: Legal
Satisfied Customers: 118786
Experience:  JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law
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The USDC, Austin, TX. dismissed my civil suite against the

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The USDC, Austin, TX. dismissed my civil suite against the Texas Court of Criminal Appeals (CCA) with prejudice as argued by the CCA. I am acting pro-se. I wish to appeal this dismissal with prejudice to the 5th Circuit. In reviewing FRAP 3 and 4 I can
find nothing concerning a dismissal w/prejudice. I know that I must present my notice of appeal to the USDC with filing fee of 455.00. However my question: I am unsure of the wording or form that I must use to give notice of appeal, assuming that I can appeal
a judgment w/prejudice.
Thank you for your question. I look forward to working with you to provide you the information you are seeking.
Here is a USDC Texas (Austin Division) Notice of Appeal form:
That is the form you must file and you can appeal any final action on a case and a dismissal with prejudice is a final action.
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Customer: replied 4 years ago.
Paul, just what I needed. Your statement to me, "I do not know already what you know or don't know...." I filed a 1983 in the CCA alleging that state and federal law requires a criminal defendant to be convicted of a specific account. The jury was given a charge of the court which told the jury members could pick any one of the count (there were 3) they thought that I was guilty of. The only requirement was that all 12 members had to agree that I was guilty of something. The DA then made this same argument in closing statements. In short, 12 jury members did not agree on a specific account as required by law. The CCA denied my 1983 w/o written order. I then filed a suite in USDC seeking declaratory judgment and injunctive relief securing my right to a proper review of the claims within both habeas application and /or writ of prohibition. If you would care to respond to the foregoing it would be helpful for your insight. If not I still thank you for the earlier requested information. You will be rated 6 stars. Thank, John
Thank you for your response (you would be surprised how many customers do not notice when we tell them we do not know what they know unless they tell us, thank you for seeing that as well).
The issue you are describing sounds like they offered the jury what is called "lesser and/or included offenses," which are charges where the elements of the offense are similar to the original charge. Instructing the jury on a lesser and/or included offense is legally permissible and is not a violation of a defendant's rights to due process. See: Beck v. Alabama, 447 U.S. 625 (1980) (US Supreme Court held that a court can instruct the jury that they can find a defendant guilty of the most serious offense or of one of the lesser offenses with the same or similar elements proven in the same trial). For example, a defendant can be charged with armed robbery and tried, but the court can instruct a jury that they can find a defendant guilty of a lesser offense of simple robbery or theft/larceny as they have elements included in the element of the more serious charge of armed robbery).
Additionally, if a defendant is charged with 3 different crimes in the same trial, the court can instruct the jury they can convict the defendant of one, two or all three charges that were presented at trial and that they do not have to convict someone of all three counts.
Again, I really do not know the specifics of your charges or your case and the above was an explanation of lesser included offenses based on what it sounds like you described happened in your case.
Customer: replied 4 years ago.
l Paul, thanks for the input but such is not the case. I will close now however I would like for you to go to google and look up Francis vs State, 36 S.W.3d. 121 (CCA - 2000). The opinion is very short but you will be able to understand what I am talking about when I state that my conviction is unconstitutional under both federal and state law.
Thank you for your response.
That is why I prefaced what I said with acknowledging that I certainly did not know anything enough about your case and was just providing information based on what it sounded like from my limited information you provided me.
I see what you are saying and if you are claiming what was done to you was more along the lines of Francis than Beck, then you do have a claim and you will have to distinguish in your appeal that the charge you were convicted on was not a lesser offense of the more serious crime you were charged with.
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