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HABEAS NO.
2613
________________________________________________________________
BRIEF IN SUPPORT OF
PETITIONERS
APPLICATION FOR WRIT OF HABEAS CORPUS
__________________________________________________________________
SUBMITTED BY:
DENISE MCVEA
PETITIONER PRO SE
1006 WYOMING STREET
SAN ANTONIO, TEXAAS 78203
(210)460-0104
TABLE OF CONTENTS
SUMMARY
Petitioner seeks a writ of habeas corpus and to be release immediately
from bond restraint of liberty based on constitutional due process
grounds pursuant to Article 11 of the Texas Code of Criminal Procedure.
Petitioner brings this petition on three constitutional grounds:
GROUND 1: The charging instrument is invalid and void. Absent a valid
charging instrument, the continued restraint of petitioner under bond is
a violation of constitutional law.
GROUND 2: There is a complete and utter absence of probable cause
to believe that Petitioner committed an offense. The facts of the case
supported by clear and unassailable proof of Petitioners actual
innocence - are such that the absence of probable cause cannot be
cured. Consequently, Petitioner must be immediately released from
bond and this prosecution dismissed by operation of law.
GROUND 3: Petitioner asserts that this prosecution is solely brought to
gain strategic advantage over Petitioner, in violation of state and
federal law. Petitioner is a published author, journalist and human
rights advocate who has documented widespread criminality and
corruption within the Bexar County judiciary. Petitioner asserts that
Bexar Countys sole purpose in holding Petitioner to bond despite the
complete absence of probable cause is an effort to pressure Petitioner
to waiver her constitutional rights through a coerced plea bargain.
JURISDICTION
Both the district and county courts have original jurisdiction to issue
the writ of habeas corpus even though the criminal proceeding under
attack is a misdemeanor.1
Additionally, Article 11.09 of the Texas Code of Criminal Procedure
provides that a person confined under a misdemeanor charge may
apply to the county judge of the county in which the misdemeanor is
charged to have been committed. TEX. CODE CRIM. PROC. art. 11.09;
Ex parte Schmidt, 109 S.W.3d 480, 483 (Tex. Crim. App. 2003) (When
they are read together, Article V, section 16 of the Constitution,
Section 25.0003(a) of the Government Code, and Article 11.05 of the
Code of Criminal Procedure give the statutory county court at law, and
the judges of that court, the power to issue the writ of habeas corpus
1 Ex parte Johnson, 561 S.W.2d 841 (Tex.Cr. App.1978); Ex parte Phelper, 433 S.W.2d
897 (Tex.Cr.App.1968).
a.
During the September 29, 2014 dismissal/set aside hearing, the
Court did not allow Petitioner to show exculpatory videotape evidence
during the proceeding. Petitioner objected, but the Court failed to rule
on Petitioners objection. Petitioner OBJECTS and EXCEPTS to judges
refusal to rule on her objection to judges ruling to not allow Petitioner
to show videotape evidence in her motion for dismissal/set aside
b.
During the September 29, 2014 dismissal/set aside hearing, the
Court limited Petitioners arguments to 15 minutes. Petitioner objected,
but the Court failed to rule on Petitioner s objection. Petitioner
OBJECTS and Excepts to judges refusal to rule on her objection to
judges limiting her argument to 15 minutes during the dismissal/set
aside hearing.
c.
During the September 29, 2014 dismissal/set aside hearing, the
Court did not require the State to show probable cause for the
continued prosecution of Petitioner. Petitioner objected, but the Court
failed to rule on the objection. Petitioner objects and excepts to judges
refusal to order the STATE to show probable cause during the
dismissal/set aside hearing.
d.
During the September 29, 2014 dismissal/set aside hearing,
Petitioner objects to the judges refusal to allow testimonial evidence.
Petitioner objected, but the Court failed to rule on the objection.
Petitioner objects to the judges refusal to rule on Petitioners objection
to the courts refusal to allow testimonial evidence during the
September 29, 2014 dismissal/set aside hearing.
e.
During the September 29, 2014 dismissal/set aside hearing,
Petitioner objected to the validity of the charging instrument against
Petitioner because it was not notarized, verified or certified, and the
name of the issuer was illegible. The Court failed to rule on the
objection. Petitioner objects to the judges refusal to rule on
Petitioners Objections related to the invalidity of the charging
instrument.
f.
Defendant objects to the courts ruling that prosecutors provide
all relevant discovery only 30 days before trial and asserts that order is
a violation of the Brady and Morton Acts, and abuse of discretion.
GROUNDS
1.
25 Exhibit I: Information
26 Exhibit H: Clerks Original Complaint, Magistrate Case No. 1604556.
Petitioner pro se Denise McVea is the party for whom this petition is intended and
prosecuted. Ms. McVea has been unlawfully restrained of her liberty, being held to bond
by Bexar County and the State of Texas since November 16, 2013.
Generally, a claim is cognizable in a pretrial writ of habeas corpus if, resolved in
the defendant's favor, it would deprive the trial court of the power to proceed and
result in the appellant's immediate release.
-
Pretrialhabeasshouldbereservedforsituationsinwhichtheprotectionoftheapplicantssubstantiverights
ortheconservationofjudicialresourceswouldbebetterservedbyinterlocutoryreview.Id.
Ex parte Ormsby, 676 S.W.2d 130, 132 (Tex. Crim. App. 1984) (holding state habeas
statute applies to people who are in any way restrained in their personal liberty); Ex parte
Robinson, 641 S.W.2d. 552, 553 (Tex. Crim. App. 1982) (holding that habeas corpus may
be used to challenge bond);
TEX. CODE CRIM.PROC.ANN., Art. 11.01 describes the writ
of habeas corpus as "the remedy to be used when any person is
restrained in his liberty." This extraordinary writ is "an order issued by
a court of competent jurisdiction, directed to anyone having a person
in his custody, or under his restraint, commanding him to produce such
person ... and show why he is held in custody or under restraint."
Additionally, Art. 11.22 defines the term restraint as: "the kind of
control which one person exercises over another, not to confine him
within certain limits, but to subject him to the general authority and
power of the person claiming such right." Consequently, under the
definitions set out in those articles a writ of habeas corpus filed
pursuant to TEX. CONST., Art. V, 8 has much broader availability to
applicants than a writ filed pursuant to Art. 11.07. [5] Even though an
applicant may not be confined, TEX. CONST., Art. V, 8 provides an
avenue by which collateral legal consequences of a conviction may be
challenged.[6]
JURISDICTION.
Both the district and county court have original jurisdiction to issue the
writ of habeas corpus even though the criminal proceeding under attack is
a misdemeanor. Ex parte Johnson, 561 S.W.2d 841 (Tex.Cr. App.1978); Ex
parte Phelper, 433 S.W.2d 897 (Tex.Cr.App.1968).
On November 16, 2013, the Petitioner was charged with the offense of
misdemeanor assault - bodily injury based on allegations made by the
complainant, Kristina Combs. On May 29, 2014, Petitioner requested
that the case be dismissed on the grounds that prosecutors had shown
no probable cause to support the prosecution, had no evidence in their
possession that would support the prosecution, and that prosecutors
had been provided exculpatory evidence that showed that Kristina
Combs had, in fact, attacked Petitioner to cover up criminal activity,
documented by Petitioner, that she had engaged in with local jurists,
attorneys and others. The Court denied Petitioners request to set aside
information and motion for dismissal. Petitioner made a timely
objection to the courts denial of her motion to dismiss. However, the
Court did not rule on the objection.
In accordance with Texas Appellate Rule of Procedure Rule 33.1(2)(B),
Petitioner
now objects to the Courts refusal to rule on Petitioners objection to
the Courts denial of her motions to dismiss and set aside information
heard on May 29, 2014.