                                                                                          ACCEPTED
                                                                                      12-14-00296-CR
                                                                         TWELFTH COURT OF APPEALS
                                                                                       TYLER, TEXAS
                                                                                 6/8/2015 12:51:25 PM
                                                                                        CATHY LUSK
                                                                                               CLERK



                      Case No. 12-14-00296-CR
                                                                   FILED IN
                                                            12th COURT OF APPEALS
            IN THE TWELFTH COURT OF APPEALS                      TYLER, TEXAS
                                                            6/8/2015 12:51:25 PM
                          TYLER, TEXAS
                                                                 CATHY S. LUSK
                                                                     Clerk
                     DAVID MARK DAVIS II,

                                           Appellant,

                                 VS.

                      THE STATE OF TEXAS,

                                           Appellee


On Appeal from the County Court at Law No. 2 of Angelina County, Texas
           The Honorable Dereck Flournoy, Presiding Judge
                       Trial Cause No. 14-1048




            APPELLANT MOTION FOR REHEARING




                                             _________________________
                                             David Mark Davis II
                                             Appellant, Pro Se
                                             905 N Loop 499, Unit 525
                                             Harlingen, TX 78550
                                             (936) 238-8507(T)
                                             (936) 309-0060(F)
                                             dmarkdavis2@gmail.com




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                                            PARTIES

ATTORNEY’S FOR THE STATE AT PRE-TRIAL HEARING, PLEA HEARING AND
ON APPEAL:

JAMES YAKOVSKY, Assistant Angelina County Attorney
Angelina County Attorney’s Office
P. O. Box 1845
Lufkin, Texas 75902-1845
936-639-3929


DEFENDANT - PRO SE

DAVID MARK DAVIS II
Appellant, Pro Se
905 N Loop 499, Unit 525
Harlingen, TX 78550
(936) 238-8507



                                 CERTIFICATE OF SERVICE

  I certify that at the time of efiling this Motion, I served a copy of the forgoing Motion on the
party listed below by electronic service, and the electronic transmission was reported as
complete. My e-mail address is dmarkdavis2@gmail.com.

JAMES YAKOVSKY
Attorney for the State
jyakovsky@angelinacounty.net
                                                             ______________________
                                                             David Mark Davis II
                                                             Appellant, Pro Se




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                                    Case No. 12-14-00296-CR


                         IN THE TWELFTH COURT OF APPEALS
                                        TYLER, TEXAS

                                    DAVID MARK DAVIS II,

                                                          Appellant,

                                               VS.

                                    THE STATE OF TEXAS,

                                                          Appellee


           On Appeal from the County Court at Law No. 2 of Angelina County, Texas
                        The Honorable Dereck Flournoy, Presiding Judge
                                     Trial Cause No. 14-1048




                        APPELLANT MOTION FOR REHEARING



TO THE HONORABLE JUSTICES OF SAID COURT:

       COMES NOW THE APPELLANT and moves the Honorable Court grant his Motion
for Rehearing initial sua sponte determination of want of jurisdiction. Appellant bases this
motion on based on constitutional and contract law. In support of his motion, the Appellant
respectfully shows the following:
                                     Summary of Argument


       Appellant argues for rehearing based on the following:


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1.       This Court’s determination that it lacked jurisdiction violated Appellant’s
right to Due Process as provided by the State and Federal Constitution since
Appellant’s plea was made, and accepted, on the condition he have a right to
appeal. Article 4.03 of the code of criminal procedure is unconstitutional as
applied since it Appellant’s fundamental right to due process.


2.       This Court had jurisdiction under the theories of contract law. The State
and Appellant entered into a legally binding contract sufficient to invoke this
Court’s jurisdiction when the trial court accepted Appellant’s plea of no contest
conditioned on Appellant’s right to appeal.


                                 Facts


1.       Appellant David Mark Davis II (“Davis”) was charged by complaint with
the criminal offense of speeding.
2.       Davis was initially tried in the Lufkin Municipal Court where he was
found guilty upon a plea of no contest.
3.       Davis filed a timely noticed of appeal to the Angelina County Court at
Law for a trial de novo, where his case was tried in the Angelina County Court at
Law No. 2.
4.       As part of his trial de novo, Davis filed a motion to suppress the evidence
obtained from a warrantless traffic stop. Despite taking judicial notice and holding
Davis was temporarily not free to leave the traffic stop, the trial court denied
Davis’ motion without requiring one iota of evidence from the State to justify the
stop.
5.       Davis immediately entered a conditional plea of no contest. This plea of
no contest was conditioned on Davis’ right to appeal.
6.       The trial court set Davis’ punishment at a fine of $75.00.
7.       Davis filed a timely notice of appeal with both the trial court and this
Court.

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               8.      Davis and the State submitted briefs as part of the appeal, with neither
               party raising jurisdictional challenges.
               9.      The Court, acting sua sponte, dismissed Davis’ appeal for want of
               jurisdiction on May 29, 2015.


                                     Argument & Authorities


Article 4.03 of the code of criminal procedure is unconstitutional as applied.


       The Court of Appeals draws its jurisdiction from both the Texas Constitution 1 and state
statutes 2. The Court of Appeals have appellate jurisdiction over District and County Courts cases
“under such restrictions and regulations as may be prescribed by law”. This Court initially held
that Article 4.03, a statutory law, forecloses on the jurisdiction of this Court since Davis’ fine



1
  Art. 5. Sect. 6. Tex. Const.: COURTS OF APPEALS; TERMS OF JUSTICES; CLERKS. (a)
The state shall be divided into courts of appeals districts, with each district having a Chief
Justice, two or more other Justices, and such other officials as may be provided by law. The
Justices shall have the qualifications prescribed for Justices of the Supreme Court. The Court of
Appeals may sit in sections as authorized by law. The concurrence of a majority of the judges
sitting in a section is necessary to decide a case. Said Court of Appeals shall have appellate
jurisdiction co-extensive with the limits of their respective districts, which shall extend to all
cases of which the District Courts or County Courts have original or appellate jurisdiction, under
such restrictions and regulations as may be prescribed by law. Provided, that the decision of said
courts shall be conclusive on all questions of fact brought before them on appeal or error. Said
courts shall have such other jurisdiction, original and appellate, as may be prescribed by law.
2
  Tex. Code. of Crim, Proc. Art. 4.03: COURTS OF APPEALS; TERMS OF JUSTICES;
CLERKS. (a) The state shall be divided into courts of appeals districts, with each district having
a Chief Justice, two or more other Justices, and such other officials as may be provided by law.
The Justices shall have the qualifications prescribed for Justices of the Supreme Court. The
Court of Appeals may sit in sections as authorized by law. The concurrence of a majority of the
judges sitting in a section is necessary to decide a case. Said Court of Appeals shall have
appellate jurisdiction co-extensive with the limits of their respective districts, which shall extend
to all cases of which the District Courts or County Courts have original or appellate jurisdiction,
under such restrictions and regulations as may be prescribed by law. Provided, that the decision
of said courts shall be conclusive on all questions of fact brought before them on appeal or error.
Said courts shall have such other jurisdiction, original and appellate, as may be prescribed by
law.


                                                  5
was less than $100.00. This conclusion, in a general sense, would be justified. However, in the
instant case, Davis entered a conditional plea of no contest. This plea was entered without
knowledge of the fine that would be imposed and with the express condition that he would have
a right to appeal. The trial court accepted Davis’s conditional plea and assessed a fine of $75.00.


         In the instant case, Article 4.03 conflicts with Davis’ right to due process as provided by
the Bill of Rights guaranteed to Davis by the United States and Texas Constitutions. Due to this
conflict, Article 4.03 cannot be used to restrict Davis’ appeal as it would violate Davis’
fundamental rights. Due to the conditions of Davis’ plea of no contest, it cannot be said that
Davis knowingly and voluntarily entered a plea of no contest that didn’t include a right to appeal.


         Since Article 4.03 would be unconstitutional as applied, we are left with just the
jurisdiction allotted to this Court under the Texas Constitution. Under the plain language of the
jurisdiction provided by the Texas Constitution, this Court does have jurisdiction in this case and
this case should have been allowed to proceed.


This Court has jurisdiction under the theories of contract law.


         Contract law has long applied to the criminal justice system; mainly through the plea
bargaining process. In a plea bargain, it has been said that the State and Defendant are entering
into a legally binding contract. While this case wasn’t a typical plea bargaining case, it does
share some of the same aspects, namely the conditions on Davis’ plea.


         When the trial court accepted Davis’ plea of no contest, the terms of that agreement
became enforceable through contract law. As such, Davis has a clear right to appeal to this
Court.
                                             Conclusion


Davis entered a conditional plea of no contest. This plea was expressly conditioned on Davis’
right to appeal. By dismissing this case, this Court’s initial decision to dismiss this case violates
the principals of equity and conflicts with the United States and Texas Constitutions. As Chief

                                                  6
Justice John Marshall stated in Marbury v. Madison, the “very essence of civil liberty certainly
consists in the right of every individual to claim the protection of the laws, whenever he receives
an injury” and from this premise, Chief Justice Marshall drew the opinion that every “right,
when withheld, must have a remedy, and every injury its proper redress” 3. In the instant case,
the trial court, by accepting his plea conditioned on his right to appeal, gave Davis the right to
appeal. This Court must grant rehearing to prevent irreparable harm to Davis.


           This Court cannot limit itself to the jurisdiction prescribed in the Code of Criminal
Procedure, when doing so would violate Davis’ fundamental rights. It is from this argument that
Article 4.03 of the Texas Code of Criminal Procedure is unconstitutional as applied to this case.


                                                 Prayer


Davis prays the Honorable Court will grant rehearing to prevent irreparable harm to his
fundamental rights.


                                                                Respectfully submitted,




                                                          _________________________
                                                                  David Mark Davis II
                                                                     Appellant, Pro Se




3
    Marbury v. Madison, 5 U.S. 137(1803)

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