Opinion
No. 11-14-00081-CR
03-03-2016
MICHAEL JOSEPH KEARNS, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the County Court at Law No. 1 Williamson County, Texas
Trial Court Cause No. 13-03809-1
MEMORANDUM OPINION
The jury convicted Appellant of the misdemeanor offense of record of a fraudulent court. See TEX. PENAL CODE ANN. § 37.13 (West 2011). The trial court assessed Appellant's punishment at 365 days in county jail and a fine in the amount of $4,000. We affirm.
On appeal, Appellant states that he "does not recognize nor consent nor delegate any of his sovereignty to [this court], for any discretionary judicial function." He further states that he "only delegates part of his sovereignty" to our court "to provide 'essential governmental subservient duties' . . . for the specific purpose, of recognizing and correcting the errors committed" by the trial court. Appellant sets forth eleven errors for our review and correction.
We first note that Appellant has failed to comply with the Rules of Appellate Procedure regarding briefing requirements. See TEX. R. APP. P. 38.1. His brief does not contain a table of contents, an index of authorities, a statement of the case, a statement of facts, a summary of the argument, or an actual argument section. Appellant also fails to cite to any case law or provide any citations to the reporter's record in his brief. In fact, we do not have a reporter's record in this case because Appellant failed to arrange for its production. Appellant does cite to the United States Constitution, the Declaration of Independence, the Articles of Incorporation, the Definitive Treaty of Peace, the Texas constitution, a section from the Business and Commerce Code, several rules, and the clerk's record. Appellant also attempts to invoke Rule 2 of the Rules of Appellate Procedure, which provides that an appellate court may suspend a rule to expedite a decision or for other good cause. See TEX. R. APP. P. 2. We have not suspended any rules of procedure in this case. Despite Appellant's failure to comply with the rules, we will, in the interest of justice, review the merits of his appeal.
In his first point of error, Appellant contends that the State committed egregious error when it used "the name of some unidentifiable structured artificial entity (legal fiction) by the name of MICHAEL JOSEPH KEARNS, or any all caps derivative of MICHAEL JOSEPH KEARNS, in association with the man, Michael Joseph Kearns, without identifying any possible relationship between the two names." We know of no legal basis as to how someone's name is different, or identifies another person or entity, when written in all caps. See Kimmell v. Cooper, No. 03-01-00333-CV, 2002 WL 246425, at *2 (Tex. App.—Austin Feb. 22, 2002, no pet.) (not designated for publication) (rejecting notion that court cannot bind an individual when full capitalization is used to spell the individual's name). Therefore, we overrule Appellant's first point of error.
Appellant argues in his second point of error that the State failed to investigate his political character and status as "one of the 'people of the United States' and NOT as one of the 'inhabitants of the United States.'" While there is no evidence before us that shows that the State investigated Appellant's political character and status during its prosecution of this case, we are not aware, nor does Appellant cite to, any authority that requires the State to conduct such an investigation. Appellant's second point of error is overruled.
In his third point of error, Appellant asserts that the State failed to ensure that its officials were legally qualified to exercise the offices to which they were appointed or elected. Specifically, Appellant challenges the qualifications of Nancy E. Rister, the Williamson County Clerk; the Honorable Billie Ray Stubblefield, District Judge and Presiding Judge of the Third Administrative Judicial District; and the Honorable Mickey Ray Pennington, acting as judge of the County Court at Law No. 1. As to Rister, Appellant claims that she failed to properly file her statement of elected or appointed official as required by the Texas constitution. The State responds that a county official is not required to file the signed statement with the secretary of state. We agree. Article 16, section 1 of the Texas constitution requires state officers to file the signed statement; however, it further provides that "[a]ll other officers shall retain the signed statement . . . with the official records of the office." TEX. CONST. art. XVI, § 1(c). Appellant has not alleged that Rister has failed to sign or retain the required statement.
Appellant claims that Judge Stubblefield is not qualified because he is holding and exercising two official offices at the same time—judge and notary public. He further claims that, because Judge Stubblefield is not qualified, Judge Stubblefield's appointment of Judge Pennington as judge of the Williamson County Court at Law No. 1 is void or, in the alternative, voidable. Appellant is correct in that the Texas constitution prohibits a person from simultaneously occupying two civil offices. See id. art XVI, § 40(a) ("No person shall hold or exercise at the same time, more than one civil office of emolument.") However, one of the exceptions to this prohibition is the office of notary public. See id. ("except that of . . . Notary Public"); Figures v. State, 99 S.W. 412, 413 (Tex. Civ. App.—Dallas 1907, no writ) (holding that the constitutional provision "does not prohibit a county attorney from holding at the same time the office of notary public"); see also Hannah v. Walker, 409 S.W.2d 949, 950 (Tex. Civ. App.—Dallas 1966, orig. proceedings) ("[A] person may at the same time hold the office of notary public and another civil office, without there being necessarily any conflict of interest."). Appellant has not demonstrated that Judge Stubblefield was disqualified or that his appointment of Judge Pennington was void or voidable.
Appellant also claims that Judge Pennington was disqualified from acting as the judge because there was already another individual, Suzanne Brooks, who held the office of County Court at Law No. 1 Judge. The Texas Government Code authorizes the presiding judge of an administrative region to appoint a visiting judge to preside over a case in the absence of the presiding judge. TEX. GOV'T CODE ANN. § 74.056(c) (West 2013). Here, Judge Stubblefield assigned Judge Pennington to this case. Appellant does not contend that the order of assignment was improper. Having found no merit to Appellant's contentions that Rister, Judge Stubblefield, and Judge Pennington were not qualified to serve in their respected offices, we overrule Appellant's third point of error.
Appellant alleges in his fourth point of error that the State "invaded the land of the United States, more specifically Texas with a foreign law, . . . statutes, codes, rules and regulations . . . and thereby committed a breach of the peace." Similarly, in his fifth point of error, Appellant contends that the State "committed a trespass upon the founding documents of the said United States" by not recognizing Appellant as one of the "people of the United States" but, instead, as one of the "inhabitants of the United States." We read Appellant's fourth and fifth points of error as attacks on the State's power to prosecute him for a criminal offense.
Article III, section 1 of the Texas constitution vests the legislative power of the State of Texas with the Senate and House of Representatives. The legislature is free to enact the laws of its choosing so long as the laws are not in conflict with the Texas constitution or the Constitution of the United States. See Brown v. City of Galveston, 75 S.W. 488, 492 (Tex. 1903). In Article 2.02 of the Texas Code of Criminal Procedure, the legislature provided that the county attorney "shall attend the terms of court in his county below the grade of district court, and shall represent the State in all criminal cases under examination or prosecution in said county." TEX. CODE CRIM. PROC. ANN. art. 2.02 (West 2005). The legislature has also provided that county courts have jurisdiction over misdemeanor offenses, such as record of a fraudulent court. See id. art. 4.07 (West 2015) (county courts have original jurisdiction over misdemeanor offenses); PENAL § 12.21 (punishment range for Class A misdemeanor), § 37.13(b) (record of a fraudulent court is a Class A misdemeanor). Appellant has listed his residence as San Antonio, Texas, on his filings with our court and the trial court. The information alleged that Appellant committed the offense of record of a fraudulent court in Williamson County. We are not aware of any provision of the Constitution of the United States that would prohibit the county attorney in Williamson County from prosecuting this misdemeanor offense as provided for under the laws of Texas. Appellant's fourth and fifth points of error are overruled.
In his sixth point of error, Appellant asserts that the State failed to rebut several Affidavits of Negative Averments and Common Law Writs of Quo Warranto. The State does not contest that it failed to respond to Appellant's filings. As the State correctly asserts, a criminal defendant is not entitled to a dismissal of the charges against him simply because the State fails to respond to the defendant's motions. Gray v. State, No. 03-09-00408-CR, 2010 WL 3271240, at *1 (Tex. App.—Austin Aug. 18, 2010, no pet.) (mem. op., not designated for publication). In addition, Appellant has not argued that he is entitled to any relief or that the trial court failed to grant him any relief based on his filings. We overrule Appellant's sixth point of error.
In his seventh point of error, Appellant argues that the trial court erred when it failed to dismiss the case for lack of jurisdiction. Appellant, in his eighth point of error, also argues that this court erred when it failed to dismiss the appeal for lack of jurisdiction. The State responds that the trial court obtained jurisdiction over this case when the State filed a valid information and that this court obtained jurisdiction when Appellant filed his notice of appeal. We agree, although we note that we obtained jurisdiction when we received this case pursuant to a docket equalization order entered by the Supreme Court of Texas in which the court transferred this case from the Austin Court of Appeals to our court. See TEX. CONST. art V, § 1 ("The judicial power of this State shall be vested in one Supreme Court, in one Court of Criminal Appeals, in Courts of Appeals, in District Courts, in County Courts, . . . and in such other courts as may be provided by law."); id. art V, § 12(b) ("The presentment of an indictment or information to a court invests the court with jurisdiction of the cause."); id. art V, § 15 ("There shall be established in each county in this State a County Court . . . ."); CRIM. PROC. art. 4.07 (county courts have original jurisdiction over misdemeanors); GOV'T § 22.201 (West Supp. 2015) (listing and describing the fourteen courts of appeals in Texas, including the Third Court [Austin] and the Eleventh Court [Eastland]); id. § 73.001 (authority given to supreme court to transfer cases from one court of appeals to another); TEX. R. APP. P. 25.2(b) (an appeal is perfected by timely filing a sufficient notice of appeal). Therefore, Appellant's seventh and eighth points of error are overruled.
Appellant contends in his ninth point of error that the State failed to take cognizance of a case filed in a federal court in Colorado. In his tenth point of error, he contends that the trial court failed to take judicial notice of the same case. Even if the trial court erred when it denied Appellant's request to take judicial notice of the federal case, we cannot determine that the error affected Appellant's substantial rights, as required for reversal under TEX. R. APP. P. 44.2(b), because Appellant has failed to secure the production of a complete record for our review. Likewise, we cannot say that the State's failure to recognize the federal case amounts to reversible error. As such, we overrule Appellant's ninth and tenth points of error.
In Appellant's eleventh point of error, he asserts that the trial court committed fraud upon this court when it entered "Pled not guilty" on the case summary sheet even though Appellant refused to enter a plea. The Code of Criminal Procedure requires the trial court to enter a plea of not guilty on behalf of a defendant when the defendant refuses to enter a plea. CRIM. PROC. art. 26.12 (West 2009). Therefore, the trial court did not err when it reported that Appellant's plea was "Not Guilty" on the case summary sheet and on the judgment. We overrule Appellant's eleventh point of error.
Although not identified as a point of error, Appellant also asserts that his case should have been tried in Great Britain. He requests this court to dismiss the case against him with prejudice. We are aware of no legal authority that has granted Great Britain jurisdiction over the prosecution of criminal offenses committed in Texas. Appellant's assertion is without merit.
In a supplemental brief, Appellant also argues that the trial court erred when it allowed his motion for new trial to expire by operation of law. Specifically, Appellant contends that he was entitled to a new trial because Rister was not qualified to serve as county clerk due to an invalid signed statement of an elected official, because Judge Pennington was not qualified to serve as visiting judge due to there being "no such Constitutional Office known as 'VISITING JUDGE'," because the trial court did not allow a witness to testify about the federal case out of Colorado, and because the trial court failed to take judicial notice of the federal case. We have already held that Appellant's arguments are without merit; therefore, they cannot form the basis for a new trial. In addition, Rule 329b(c) of the Texas Rules of Civil Procedure states, "In the event an original or amended motion for new trial . . . is not determined by written order signed within seventy-five days after the judgment was signed, it shall be considered overruled by operation of law on expiration of that period." We hold that the trial court did not err when it did not rule on Appellant's motion for new trial and allowed it to be overruled by operation of law. Appellant's supplemental point of error is overruled.
We affirm the judgment of the trial court.
JIM R. WRIGHT
CHIEF JUSTICE March 3, 2016 Do not publish. See TEX. R. APP. P. 47.2(b). Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.