           EMERGENCY RELIEF REQUESTED



                No.



                     IN THE COURT OF
                 CRIMINAL APPEALS, TEXAS


                  IN RE JASON CHILDRESS,

                                          PETITIONER


          PETITON FOR WRIT OF HABEAS CORPUS


             On Petition For A Writ Of Habeas Corpus
To The Texas Court of Criminal Appeals From Cause No. 2014CR1548
  From The Comal County Court At Law #2 of Comal County, Texas
                      (Charles A. Stephens II)
                                    IDENTITY OF PARTIES


       Petitioner, Jason Childress, certifies that the following is a complete list of the names and
addresses of all parties.


Petitioner:                                           Jason Childress

       Sui Juris in Trial Court,
                                                      9141 Gristmill Ct.
                                                      Fort Worth, Texas



Respondent:                                           Charles A. Stephens II
                                                      County Court At Law #2
                                                      Comal County Courthouse Annex
                                                      150 N. Seguin, Ste. 301
                                                      New Braunfels, TX 78130

Interested Party:                                     Abigail Whitaker
                                                      Comal County District Attorney's Office
                                                      Comal County Courthouse Annex
                                                      150 N. Seguin Ave. Ste. 307
                                                      New Braunfels, Texas 78130




                                                 ii
                                                  TABLE OF CONTENTS

                                                                                                                                    Page

IDENTITY OF PARTIES.............................................................................................................. ii
TABLE OF CONTENTS.............................................................................................................. iii
INDEX OF AUTHORITIES......................................................................................................... iv
STATEMENT OF THE CASE..................................................................................................... ix
STATEMENT OF JURISDICTION............................................................................................. ix
ISSUES PRESENTED................................................................................................................. ix
STATEMENT OF FACTS............................................................................................................. 1
ARGUMENT................................................................................................................................. 2
          HABEAS RELIEF IS PROPER........................................................................................ 2
     I. POWER TO RESTRAIN................................................................................................... 2
     II. MANNER OF RESTRAINT............................................................................................. 3
     III. ISSUES THAT BAR PROSECUTION AND CONVICTION.......................................... 9
          A. Sec. 38.02 IS INAPPLICABLE UNDER THE CIRCUMSTANCES......................... 9
          B. WITNESSES DISQUALIFIED................................................................................. 12
REQUEST FOR RELIEF............................................................................................................. 14
VERIFICATION.......................................................................................................................... 15
CERTIFICATE OF SERVICE..................................................................................................... 16
APPENDICES …......................................................................................................................... 17
(Appendix is separate, incorporated herein in its entirety for all purposes, and is being used as an
Appendix for this Petition for Writ of Hebeas Corpus and Petition for Writ of Mandamus)




                                                                    iii
                                                 INDEX OF AUTHORITIES

                                                  Legal Maxims & Doctrines

Doctrine of Acquiescence.............................................................................................................. 3

Ejusdem Generis.......................................................................................................................... 11

Expressio unius est exclusio alterius............................................................................................ 11

Jus ex injuria non oritur................................................................................................................ 14

Lex citius tolerare vult privatum damnum quam publicum malum............................................. 14

Nemo punitur pro alieno delicto.............................................................................................. 7, 14

Noscitur a Sociis.......................................................................................................................... 11

Nullus commodum capere potest de injuri su propri............................................................... 8, 14

Ubicunque est injuria, ibi damnum sequitur............................................................................ 8, 14

Qui non negat, fatetur..................................................................................................................... 3

                                                        Legal Encyclopedia

Corpus Juris Secundum,
      2d Vol. 7 section 25.......................................................................................................... 13

                                                            Federal Cases

Armstrong v. Manzo,
      380 U.S. 545 (1965)........................................................................................................... 8

Central Pacific Railway Co. v. Alameda County,
       284 U.S. 463 (1932)........................................................................................................... 4

Conley v. Gibson,
      355 U.S. 41 at 48 (1957)............................................................................................ 13, 14

Davis v. Wechler,
       263 U.S. 22....................................................................................................................... 13

Georgia v. South Carolina,


                                                                     iv
          497 U.S. 376 (1990)........................................................................................................... 4

Goldsmith v. U. S.,
      C.C.A.N.Y., 42 F.2d 133.................................................................................................. 11

Grannis v. Ordean,
      234 U.S. 385, 394............................................................................................................... 9

Haines v Kerner,
       404 U.S. 519 (1972)......................................................................................................... 13

In re Eagle Bus Mfg.,
       62 F.3d. 730, 735 (5th Cir. 1995)....................................................................................... 7

In re Gault,
       387 U.S. 1 (1967)............................................................................................................... 8

Jenkins v. McKeithen,
       395 U.S. 411, 421 (1959)................................................................................................. 13

Maty v. Grasselli Chemical Co.,
       303 U.S. 197 (1938)......................................................................................................... 13

Medical Center, Inc.,
      485 U.S. 80 (1988)............................................................................................................. 9

Mullane v. Central Hanover Bank & Trust Co.,
      339 U.S. 306, 314 (1950)................................................................................................... 8

NAACP v. Alabama,
    375 U.S. 449..................................................................................................................... 13

Peralta v. Heights Medical Center, Inc.,
        485 U.S. 80 (1988)............................................................................................................. 9

Picking v. Pennsylvania Railway,
       151 F.2d. 240, Third Circuit Court of Appeals................................................................. 13

Plaskey v. CIA,
       953 F.2nd 25..................................................................................................................... 13

Puckett v. Cox,
       456 F. 2d 233 (1972) (6th Cir. USCA)............................................................................. 13



                                                                    v
Robinson v. Hanrahan,
      490 U.S. 38 (1972)............................................................................................................. 7

Stromberb v. California,
      283 U.S. 359..................................................................................................................... 13

                                                            State Cases

Aleksich v. Industrial Accident Fund,
       116 Mont. 69, 151 P.2d 1016............................................................................................ 11

Browning v. Placke,
      698 S.W.2d. 362 (Tex. 1985) (orig. proceeding).............................................................. 10

Bruneio v. Bruneio,
      890 S.W.2d 150, 155 (Tex. Civ. App. 1994, no writ)......................................................... 6

Burgin v. Forbes,
       293 Ky. 456, 169 S.W.2d 321.......................................................................................... 11

Cliff v. Huggins,
         724 S.W.2d 778, 780 (Tex.1987)................................................................................... 6, 7

DeLeon v, Periman,
     530 S.W.2d 174 (Tex. Civ. App. 1975).............................................................................. 4

Delgado v. Hernandez,
      951 S.W.2d 97, 99 (Tex. Civ. App. 1997, no writ)...........................................................

Dunham v. State,
     140 Fla. 754, 192 So. 324, 325, 326................................................................................ 11

Ex parte Gordon,
       584 S.W.2d. 686, 688 (Tex. 1979)..................................................................................... 5

Ex parte Smith,
       178 S.W.3d 797 (Tex. Crim. App. 2005)............................................................................ 3

Fazio v. Pittsburgh Rys. Co.,
       321 Pa. 7, 182 A. 696....................................................................................................... 11

Hidalgo County Water Improvement District No.2 v. Blalock,
      301 S.W.2d 593 (1957)...................................................................................................... 4



                                                                   vi
In re Aguilera,
       37 S.W.3d. 43, 47 (Tex. Civ. App. 2000, no pet.).............................................................. 5

IN RE BOURG,
      Tex. Civ. App. (2008)......................................................................................................... 5

In re Castro,
       998 S.W.2d. 925, 927 (Tex.Civ. App. 1999. no pet.)......................................................... 5

Little v. Town of Conway,
        171 S.C. 27, 170 S.E. 447................................................................................................ 11

Louis Pizitz Dry Goods Co. v. Fidelity & Deposit Co. of Maryland,
       223 Ala. 385, 136 So. 800, 801........................................................................................ 11

Mapco, Inc. v. Forrest,
      795 S.W.2d 700 (Tex. 1990 orig. proceeding).................................................................. 9

Morecock v. Hood,
      202 N.C. 321, 162 S.E. 730.............................................................................................. 11

Newblock v. Bowles,
      170 Oki. 487, 40 P.2d 1097.............................................................................................. 11

People v. One 1941 Ford 8 Stake Truck, Engine No. 99T370053, License No. P.8410, Cal.,
       159 P.2d 641..................................................................................................................... 12

Platt v. Platt,
         991 S.W.2d. 481 (Tex. Civ. App. 1999)......................................................................... 5, 6

Rozsa v. Jenkinson,
       754 S.W.2d. 507, (Tex. Civ. App. 1988)............................................................................ 7

Sanchez v. Hester,
      911 S.W.2d. 173 – Tex. Civ. App. (1995).................................................................... 9, 10

Saslaw v. Weiss,
      133 Ohio St. 496, 14 N.E.2d 930...................................................................................... 11

State v. Owens,
        907 S.W.2d. 484 (Tex. 1995) (per curiam)....................................................................... 10

State v. Western Union Telegraph Co.,
        196 Ala. 570, 72 So. 99, 100............................................................................................ 11


                                                                   vii
Thomas v. Miller,
     906 S.W.2d. 260 (Tex.App.-Texarkana 1995) (orig. proceeding)................................... 10

Thomas v. Ray,
     889 S.W.2d 237, 238 (Tex.1994)....................................................................................... 6

Withrow v. Schou,
      13 S.W.3d. 37 (Tex. Civ. App. 1999)................................................................................. 7

                                                 State Constitution and Rules

Texas Code of Criminal Procedure,
       Art. 4.04............................................................................................................................. x

Texas Code of Criminal Procedure,
       Art. 11.01........................................................................................................................... x

Texas Code of Criminal Procedure
       Art. 11.05........................................................................................................................... x

Texas Code of Criminal Procedure,
       Art. 14.01......................................................................................................................... 12

Texas Code of Criminal Procedure,
       Art. 14.03......................................................................................................................... 12

Texas Constitution
       Art. V, Sec. V (c)................................................................................................................ x

Texas Penal Code,
       Sec. 1.07 (a) (38).............................................................................................................. 11

Texas Penal Code,
       Sec. 38.01 (5)................................................................................................................... 12

Texas Penal Code,
       Sec. 38.02 (a) (d) (1)...................................................................................... 10, 11, 12, 13




                                                                     viii
                                STATEMENT OF THE CASE

Underlying Proceeding:
      A criminal action brought against Petitioner by IDA PANIAGUA for the alleged offense
“INTENTIONALLY REFUSE TO GIVE HIS NAME, DATE OF BIRTH AND ADDRESS TO
JAMES BELL.”

Respondent:
      Charles A. Stephens II, Comal County Court At Law 2, of COMAL COUNTY, TEXAS.

Respondent's Action For Which Petitioner Seeks Relief:
       Charles A. Stephens II, entered an order instructing the clerk of the Comal County Court
At Law 2 to issues a capias warrant, which has been issued, for Petitioner in absence of Due
Process, unconstitutionally restraining him.

Prior Petitions:
       This is an Original Proceeding.


                             STATEMENT OF JURISDICTION

       This court, pursuant to the Texas Constitution Art. V, Sec. V (c) and the Texas Code of

Criminal Procedure, Ch. 4, Art. 4.04 and Ch. 11., Art. 11.01 and 11.05 has jurisdiction to

consider and grant this Petition and to issue a Writ of Habeas Corpus.


                                    ISSUES PRESENTED

   1. Does the trial court have power to restrain Petitioner? (No)

   2. Has the manner of restraint of Petitioner occurred in absence of Due Process? (Yes)

   3. Are there issue which bar prosecution and conviction of Petitioner for the alleged

       criminal charge against him? (Yes)




                                                ix
                                           STATEMENT OF FACTS

         On September 4, 2014, Petitioner was unlawfully arrested, unlawful searched and had his

property seized unlawfully by officers of/for the NEW BRAUNFELS POLICE DEPARTMENT

(NBPD).

         On September 12, 2014, Petitioner was coerced into signing a “PR BOND” (Apx. Tab B)

displaying an incorrect address for Petitioner. Petitioner was coerced in that the jailer whom

presented the “PR BOND” threatened to leave Petitioner in jail for another two weeks if he

refused to sign. Petitioner signed the “PR BOND” in order to expedite his release from his

unlawful imprisonment, as Petitioner could inform the trial court that the address displayed on

the “PR BOND” is incorrect and provide it with a correct one for purposes of service of notice or

any other correspondences.

         On September 29, 2014, via letter (Apx. Tab C), Petitioner informed the trial court that it

had an incorrect address for Petitioner on file and provided it with both Petitioner's current

location and address to which notices of any hearings or any other correspondences should be

sent to in order for him to receive them.

         On March 3, 2015, Petitioner began checking the online records for the trial court

because he had received no correspondences or notices of hearings. On that same day, Petitioner

discovered via online records that the trial court had failed or neglected to correct the incorrect

address it had on file (Apx. Tab D), that a “COMPLAINT (OCA)” (Apx. Tab E) and a

“NOTICE RETURNED” (Notice) (Apx. Tab F) had been filed into the trial court on December

15, 2014 and January 26, 2015, respectively, and than an “Arraignment” (see Apx. Tab D) had

taken      place        circa   February    3,   2015.   Petitioner   further   discovered   than    an

“AFFIDAVIT/FAILURE TO APPEAR” (Apx. Tab G), an “ORDER FOR ARREST-FAILURE

In re Jason Childress                                                                        Page 1 of 18
TO APPEAR” (Order) (Apx. Tab H) and a “CAPIAS-FAILURE TO APPEAR” (Capias) (Apx.

Tab I) had also been filed into the trial court on February 20, 2015, February 26, 2015, and

March 2, 2015, respectively.

                                              ARGUMENT

          “A [petitioner] may use a pretrial writ of habeas corpus only in very limited
          circumstances. First, the accused may challenge the State's power to restrain him
          at all. Second, the accused may challenge the manner of his pretrial restraint [].
          Third, the accused may raise certain issues which, if meritorious, would bar
          prosecution or conviction. Ex parte Smith, 178 S.W.3d 797 (2005).

                                      I. POWER TO RESTRAIN

         The trial court is without subject matter, personal, political or civil contractual

jurisdiction over the underlying cause to the instance case, therefore, is without power to restrain

Petitioner. The lack of the aforementioned jurisdictions are set forth, challenged, and explained

in    further       detailed   in   Petitioner's   “AFFIDAVIT      OF   COUNTERCOMPLAINT,”

(Countercomplaint) (see Apx. Tab K) attached hereto and incorporated herein it its entirety for

all purposes. The lack of the aforementioned jurisdictions are set out and explained in detail

specifically in Sections IV. – VIII. of Petitioner's Countercomplaint (Apx. Tab K). Petitioner's

averments have been received by all involved and interested parties, evidenced by Return

Receipts (see Apx. Tab N, O, P, & Q) attached hereto and incorporated herein for all purposes

and said Receipts have been filed into the trial court's record. Petitioner's sworn averments within

his Countercomplaint are unchallenged, unrebutted and unrefutted, and pursuant to the Doctrine

of Acquiescence, silence by the involved and interested parties constitutes their agreement with

Petitioner's sworn averments.

                                        Doctrine of Acquiescence

          Under the Doctrine of Acquiescence as well as the Maxim in Law which states

In re Jason Childress                                                                     Page 2 of 18
          that “silence shows consent” 6 Barb. [N.Y.] 2B, 35. Qui non negat, fatetur and
          “He who does not deny, agrees,” (Trayner, Maxim 503), the Appellee’s silence
          constituted their agreement with the Appellants’ arbitration proposal terms and
          conditions under the legal Doctrine of Tacit Procuration.

          The common law doctrine of estoppel by acquiescence is applied when one party
          gives legal notice to a second party of a fact or claim, and the second party fails to
          challenge or refute that claim within a reasonable time. The second party is said to
          have acquiesced to the claim, and is estopped from later challenging it, or making
          a counterclaim. The doctrine is similar to, and often applied with, estoppel by
          laches

          This occurred in the second Georgia v. South Carolina1 case before the U.S.
          Supreme Court in 1990, when it was ruled that Georgia could no longer make any
          claim to an island in the Savannah River, despite the 1787 Treaty of Beaufort's
          assignment to the contrary. The court said that the state had knowingly allowed
          South Carolina to join the island as a peninsula to its own coast by dumping sand
          from dredging, and to then levy property taxes on it for decades. Georgia thereby
          lost the island-turned-peninsula by its own acquiescence, even though the treaty
          had given it all of the islands in the river (see adverse possession

          Silence is acquiescence (aka. silent acquiescence and acquiescence by silence) is a
          related doctrine that can mean, and have the legal effect, that when confronted
          with a wrong or an act that can be considered a tortuous act, where one’s silence
          may mean that one accepts or permits such acts without protest or claim thereby
          loses rights to a claim of any loss or damage.2

         Further, pursuant to the Doctrine of Stare Decisis, Petitioner's “...unchallenged averments

are accepted as true.” DeLeon v. Periman, 530 S.W.2d 174 (Tex.App.-Amarillo (1975)); quoting

Hidalgo County Water Improvement District No.2 v. Blalock, 157 Tex. 206, 301 S.W.2d 593, 596

(1957). Petitioner's averments that the trial court is without jurisdiction have been agreed to by

all involved and interested parties and are accepted as true under Texas Common Law. In

absence of the subject matter, personal, political and civil contractual jurisdiction, the trial court

is without power to restrain Petitioner in relation to the underlying case to the instant case.

                                    II. MANNER OF RESTRAINT

1 Georgia v. South Carolina - 497 U.S. 376 (1990)
2 U.S. Supreme Court Central Pacific Railway Co. v. Alameda County, 284 U.S. 463 (1932)

In re Jason Childress                                                                        Page 3 of 18
         Even if the trial court had jurisdiction over the underlying cause to the instant case and

power to restrain Petitioner, the manner in which his restraint has taken place has clearly

manifested through a denial of due process, in that Petitioner was not provided notice of the

hearing from which his restraint stems from.

         An Order (Apx. Tab H) for “FAILURE TO APPEAR” was issued by Respondent on

February 26, 2015. On March 2, 2015, the Clerk or a deputy therefor, of/for the trial court issued

a Capias (Apx. Tab I) for Petitioner. “Issuance of a capias is a sufficient restraint of liberty to

justify habeas corpus relief.” In re Aguilera, 37 S.W.3d. 43, 47 (Tex.App.-El Paso 2000, no pet.)

As of yet, Petitioner has not been taken taken into custody pursuant to Order and Capias.

         “A habeas corpus petition is a collateral attack on a judgment, the purpose of which is not

to determine the final guilt or innocence of the [petitioner], but to ascertain whether the

[petitioner] has been [restrained] unlawfully. Ex parte Gordon, 584 S.W.2d. 686, 688 (Tex.

1979). The restraint of Petitioner by the trial court is unlawful due to the fact that the Order was

made and the Capias was issued in absence of due process. “A writ of habeas corpus will issue if

[] the court deprives the [petitioner] of liberty without due process of law.” In re Castro, 998

S.W.2d. 925, 927 (Tex.App.-Houston [1st Dist.] 1999. no pet.). A writ of habeas corpus is proper

and should issue due to the fact that Petitioner is being deprived of his liberty without due

process of law.

          “A [petitioner] bears the burden of showing that []he is entitled to relief.” Turner,
          177 S.W.3d at 288 (citing Occhipenti, 796 S.W.2d. At 808-09.)” IN RE BOURG,
          Tex: Court of Appeals, 1st Dist. 2008.

         The court administrator of/for the trial court erred by mailing the notice of the hearing

from which the Order and Capias stem to the wrong address even though the court had been

notified before the notice was sent, that the address it had on file was incorrect and had been

In re Jason Childress                                                                        Page 4 of 18
provided with, and was in possession of, Petitioner's exact location and correct address. “[T]he

trial court erred when it [] failed to send notice of the hearing to [Petitioner's] address on file

with the court.” Platt v. Platt, 991 S.W.2d. 481 (1999).

         Petitioner had notified the court via letter (see Apx. Tab C) sent on September 19, 2014,

which was received and filed into the trial court record on October 3, 2014, as a part of the

“MEMORANDUM (see Apx. Tab D) that the address it had on file (see Apx. Tab B and E) was

incorrect; that Petitioner had not lived at the incorrect address in a number of years; and, he

provided not only his current location– DALLAS COUNTY JAIL, but also the address to which

notice should be sent in order for him to receive it, if notice was not sent directly to the DALLAS

COUNTY JAIL.

         “[T]the law presumes that a trial court will hear a case only after proper notice to the

parties. To rebut this presumption, [petitioner] has the burden to affirmatively show a lack of

notice by affidavit or other competent evidence.” Bruneio v. Bruneio, 890 S.W.2d 150, 155

(Tex.App.-Corpus Christi 1994, no writ). Petitioner has shown to the trial court, and now shows

this court, via affidavit (see Apx. Tab J, pg.5, #100. and Apx. Tab K, p.34 - 35, #77. - 78.) that

he was not provided notice of the hearing from which the Order and Capias stem. Further,

Petitioner provides this court with competent evidence (see Apx. Tab C & F) that he was not

provided notice of the hearing from which the Order and Capias stem.

         “In the instant case, the record shows that notice of [the] hearing [] was mailed to the

wrong address. That a document was mailed creates a rebuttable presumption that it was

received.” Platt v. Platt, 991 S.W.2d 481 (1999) quoting Thomas v. Ray, 889 S.W.2d 237, 238

(Tex.1994). Similarly, in the underlying cause to the instance case, the trial court's record shows

that notice was mailed to the wrong address (see Apx. Tab C & F). “When [Petitioner] filed [his]

In re Jason Childress                                                                    Page 5 of 18
affidavit stating that []he did not receive the notice, the presumption was rebutted.” (see Apx.

Tab K, p. 34 – 35, #77. – 78.) “The presumption of receipt is not evidence and vanishes when

opposing evidence is introduced showing that the notice was not received.” Cliff v. Huggins, 724

S.W.2d 778, 780 (Tex.1987).

          “The error and invalidity of the trial court's judgment affirmatively appears on the
          face of the record [see Apx. Tab D & F] in the that wrong address for [Petitioner]
          is typed on the notice []. Additionally, the records shows that [the trial court] had
          access to [Petitioner's] correct address [] [see Apx. Tab C]. Therefore, the notice
          was not sent to [Petitioner's] “last known address. Rozsa v. Jenkinson, 754
          S.W.2d. 507 (Tex.App.-San Antonio 1988)

          “The [trial court] mailed notice of the pending [] proceeding, not to the jail
          facility [or the address provided by Petitioner], but to [an incorrect] address []
          listed in the records of the [trial court].” Robinson v. Hanrahan, 490 U.S. 38
          (1972) “[T]he manner of notice did not comport with the requirements of the Due
          Process Clause of the Fourteenth Amendment. (Id.) “The [trial court] knew that
          [petitioner] was not at the address to which notice was mailed and, moreover,
          knew also that [petitioner] could not get to that address since he [no longer lived
          there]. Under these circumstances, it cannot be said the the [trial court] made any
          effort to provide notice which was 'reasonably calculated” to apprise [petitioner]
          of the pendency of the [] proceedings.” (Id.)

         Either the Clerk or a deputy therefor, failed to correct the mistake in the court's files or

the court administrator intentionally sent notice to the wrong address.

          “The notice was returned undelivered to the trial court on [or about January 27,
          2015], with the notation “Return to Sender [Not Delivered As Addressed Unable
          To Forward (see Apx. Tab F)]” Withrow v. Schou, 13 S.W.3d. 37 (Tex.App.-
          Houston 1999). “[I]f [Petitioner] [had failed] to notify the clerk in writing of a
          [correct] address, [] then there is no 'due process' argument...” (Id.) “Federal
          courts have held in various contexts that mailing notice of settings by first-class
          mail is constitutionally sufficient as long as the government acts reasonable under
          the circumstances, even if the intended recipient of the notice never receives it.
          See In re Eagle Bus Mfg., 62 F.3d. 730, 735 (5th Cir. 1995)” (Id.) “There is
          imposed 'a responsibility on the [party] to be notified to keep the court and parties
          apprised of their correct and current address.'” [T]he record indicates [Petitioner]
          notified the court of [the correct] address.” (Id.)

         The trial court had been notified that the address it had on file (see Apx. Tab B) was


In re Jason Childress                                                                        Page 6 of 18
incorrect and it was in fact notified and in possession of the correct address (see Apx. Tab C) to

which service was to be made, therefore, Petitioner cannot be faulted and restrained in his liberty

for the mistakes or wrongs of the clerk or deputy therefor, or court administrator; Nemo punitur

pro alieno delicto. “No one is to be punished for the crime or wrong of another.”; Nullus

commodum capere potest de injuri su propri. “No one shall take advantage of his own wrong.

Co. Litt. 148.”' Ubicunque est injuria, ibi damnum sequitur. Where ever there is a wrong, there

damages follow. 10 Co. 116.” Petitioner has been denied due process in that he was not provided

notice of the hearing from which the Order and Capias stem.

          “It is clear that failure to give the petitioner notice of the pending proceedings
          violates the most rudimentary demands of due process of law. Many controversies
          have raged about the cryptic and abstract words of the Due Process Clause but
          there can be no doubt that at a minimum they require the deprivation of life,
          liberty, or property by adjudication be preceded by notice and opportunity for
          hearing appropriate to the nature of the case. Mullane v. Central Hanover Tr. Co.,
          339 U.S. 306, at 313.” Armstrong v. Manzo, 380 U.S. 5454 – Supreme Court
          1965.

         As has been stated and demonstrated by Petitioner herein, and the Appendices attached

hereto and incorporated herein, he has denied due process in that he was not given notice of the

hearing from which the Order and Capias stem. Further, even if Petitioner had received notice, it

does not set out the alleged misconduct with particularity specifically pertaining to the alleged

offense alleged to have been committed by Petitioner which made basis for his arrest and

creating an obligation to provide any information to the officers of/for the NBPD. In absence of

the alleged misconduct, even if Petitioner would have received the notice it would not have been

in compliance with due process requirements.

          “Notice, to comply with due process requirements, must be given sufficiently in
          advance of scheduled court proceedings so that reasonable opportunity to prepare
          will be afforded, and it must 'set forth the alleged misconduct with particularity.' ”
          In re Gault, 387 U.S. 1, Supreme Court 1967. Due process of law requires notice

In re Jason Childress                                                                         Page 7 of 18
          of the sort we have described – that is, notice which would be deemed
          constitutionally adequate in a civil or criminal proceeding. It does not allow a
          hearing to be held in which [] freedom [is] at stake without giving [] timely
          notice, in advance of the hearing, of the specific issues that must be met. Nor, in
          the circumstances of this case, can it reasonable be said that the requirement of
          notice was waived. (Id.)

         Petitioner was neither given notice, nor afforded opportunity to present objections to the

allegation(s) made against him. Petitioner cannot be expected to be able object to allegations not

made known to him.

          “Service of process is the way in which the defendant gets notice of the claim
          against him and its allegations. The Supreme Court has held that due process
          requires “notice reasonably calculated, under the circumstances, to apprise the
          interested parties of the pendency of the action and afford them the opportunity to
          present their objections.” Mullane v. Central Hanover Bank & Trust Co., 339 U.S.
          306, 314 (1950).

         As a result of Petitioner not being provided notice of the hearing from which the Order

and Capias stem, the Order is constitutionally infirm, invalid and null and void, likewise is the

Capias. Further, a failure to set forth the alleged misconduct with particularity in said notice (see

Apx. Tab F), the Order and Capias are constitutionally infirm, invalid and null and void.

          “'[U]nder our cases, a judgment entered without notice or service is
          constitutionally infirm.' An elementary and fundamental requirement of due
          process in any proceeding is notice reasonably calculated, under the
          circumstances, to apprise the interested parties of the pendency of the action and
          afford them the opportunity to present their objections.” Peralta v. Heights
          Medical Center, Inc., 485 U.S. 80 (1988)); quoting Mullane v. Central Hanover
          Bank & Trust Co. “Failure to give notice violates the most rudimentary demands
          of due process” (Id.)

         Petitioner was further denied due process in that he was denied the opportunity to be

heard, as a result of not being provided notice of the hearing from which the Order and Capias

stem. “A fundamental requirement of due process is the 'opportunity to be heard.” Grannis v.

Ordean, 234 U.S. 385, 394.


In re Jason Childress                                                                      Page 8 of 18
         [V]oid orders may be circumvented by collateral attack[]. Mapco, Inc. v. Forrest, 795

S.W.2d 700, 703 (Tex. 1990) (orig. proceeding).” Sanchez v. Hester, 911 S.W.2d. 173 – Tex:

Court of Appeals, 13th Dist. 1995. As stated supra, this petition is, inter alia, a collateral attack

on the Order and Capias, and same are void as a result of Petitioner being denied Due Process

resulting from a failure to provide notice and to set forth therein with particularity the alleged

misconduct, resulting in the court failing to secure personal jurisdiction over Petitioner for

purposes of the hearing from which the Order and Capias stem. “[T]he position adopted by the

Texas Supreme Court reflects the principle under Texas law that the orders of a court with no

jurisdiction over the parties or property are void.” See State v. Owens, 907 S.W.2d. 484, 485

(Tex. 1995) (per curiam); Thomas v. Miller, 906 S.W.2d. 260 (Tex.App.-Texarkana 1995) (orig.

proceeding); see also Browning v. Placke, 698 S.W.2d. 362, 363 (Tex. 1985) (orig. proceeding)

(comparing void and voidable judgments) Sanchez v. Hester, supra.

                        II. ISSUES THAT BAR PROSECTION AND CONVICTION

         As stated and demonstrated supra, and by the Appendices attached hereto, and by the

silence of all involved and interested parties thereto, the trial court is without jurisdiction over

the underlying cause to the instant case. Without jurisdiction, the trial court is without power to

hear the underlying cause to the instant case and the prosecutor for the state and,or county,

ABIGAIL WHITAKER (Whitaker), is barred form prosecution and conviction of Petitioner for

the criminal allegation and cause against him. Even if the trial court had jurisdiction, the

allegation made against Petitioner is inapplicable thereto, under the circumstances.

              A. Sec. 38.02. IS INAPPLICABLE UNDER THE CIRCUMSTANCES

          T.P.C. Sec. 38.02. FAILURE TO IDENTIFY.

          (a) A “person” commits an offense if he intentionally refuses to give his name,

In re Jason Childress                                                                      Page 9 of 18
          residence address, or date of birth to a peace officer who has lawfully arrested the
          “person” and requested the information.

          (d) If it is shown on the trial of an offense under this section that the defendant
          was a “fugitive from justice” at the time of the offense, the offense is:
                   (1) a Class B misdemeanor if the offense is committed under Subsection
          (a); or

          T.P.C. Sec. 1.07. DEFINITIONS. (a) In this code:
          (38) "Person" means an individual, corporation, or association.

         The legal term “Person” falls under the following Doctrines of Statutory Interpretation

used by both the federal congress and state legislatures in drafting legislation, as well as the

federal and state judiciary departments to interpret legislation passed into law by the federal

congress and state legislatures:

          Ejusdem Generis: Of the same kind, class, or nature. In the construction of laws,
          wills, and other instruments, the "ejusdem generis rule" is, that where general
          words follow an enumeration of persons or things, by words of a particular and
          specific meaning, such general words are not to be construed in their widest
          extent, but are to be held as applying only to persons or things of the same general
          kind or class as those specifically mentioned. Black, Interp. of Laws, 141;
          Goldsmith v. U. S., C.C.A.N.Y., 42 F.2d 133, 137; Aleksich v. Industrial Accident
          Fund, 116 Mont. 69, 151 P.2d 1016, 1021. The rule, however, does not necessarily
          require that the general provision be limited in its scope to the identical things
          specifically named. Nor does it apply when the context manifests a contrary
          intention. The maxim "ejusdem generis," is only an illustration of the broader
          maxim, "noscitur a sod's." State v. Western Union Telegraph Co., 196 Ala. 570, 72
          So. 99, 100. Black's Law, 4th Ed.

          Noscitur a Sociis: It is known from its associates. 1 Vent. 225. The meaning of a
          word is or may be known from the accompanying words. 3 Term R. 87; Broom,
          Max. 588. Morecock v. Hood, 202 N.C. 321, 162 S.E. 730, 731; Louis Pizitz Dry
          Goods Co. v. Fidelity & Deposit Co. of Maryland, 223 Ala. 385, 136 So. 800,
          801. The doctrine means that general and specific words are associated with and
          take color from each other, restricting general words to sense analogous to less
          general. Dunham v. State, 140 Fla. 754, 192 So. 324, 325, 326. Black's Law, 4th
          Ed.

          Expressio unius est exclusio alterius: Expression of one thing is the exclusion of
          another. Co.Litt. 210a; Burgin v. Forbes, 293 Ky. 456, 169 S.W.2d 321, 325;
          Newblock v. Bowles, 170 Oki. 487, 40 P.2d 1097, 1100. Mention of one thing

In re Jason Childress                                                                      Page 10 of 18
          implies exclusion of another. Fazio v. Pittsburgh Rys. Co., 321 Pa. 7, 182 A. 696,
          698; Saslaw v. Weiss, 133 Ohio St. 496, 14 N.E.2d 930, 932. When certain
          persons or things are specified, in a law, contract, or will, an intention to exclude
          all others from its operation may be inferred. Little v. Town of Conway, 171 S.C.
          27, 170 S.E. 447, 448. Under this maxim, if statute specifies one exception to a
          general rule or assumes to specify the effects of a certain provision, other
          exceptions or effects are excluded, People v. One 1941 Ford 8 Stake Truck,
          Engine No. 99T370053, License No. P.8410, Cal., 159 P.2d 641, 642. Black's
          Law, 4th Ed.

         Sec. 38.01. DEFINITIONS. In this chapter:
         (5) "Fugitive from justice" means a person for whom a valid arrest warrant has been
         issued.

         As stated in Petitioners Countercomplaint (see Apx. Tab K pg.73 - 76, #168. - 171.), he

is not a “Person,” rather, he is a member of the people. Petitioner is neither a “Person,” nor was

he a “Fugitive from justice” and there is no evidence to the contrary.

         In order for Sec. 38.02 (a) to be applicable, a “person” must first be “lawfully arrested”

before the “person” is required to “give his name, residence address, or date of birth.” Petitioner

is not a “person,” even if he is or was at the time, he was not lawfully arrested as he had not

committed an offense classed as a felony or as an offense against the public peace, or any other

offense, in the presence or within view of any of the officers (see Tex. C. Crim. Proc., Art. 14.01

& 14.03) of/for the NBPD involved in Petitioner's unlawful arrest. In fact, when the officers

of/for the NBPD arrived, Petitioner was being assaulted (see Apx. Tab J). Without committing

the aforementioned offenses in the presence or within view of those officers, Petitioner's arrest

was unlawful. Being that Petitioner had committed no offense and was unlawfully arrested, he

was not required to provide any identifying information contemplated within Sec. 38.02 to any of

the officers of/for the NBPD involved in his unlawful arrest, therefore, Sec. 38.02 is inapplicable

to Petitioner under the circumstances. Further, Whitaker cannot prove beyond a reasonable doubt

that the alleged offense Petitioner is accused of occurred while the officers of/for the NBPD were

In re Jason Childress                                                                       Page 11 of 18
in the lawful discharge of their official duties. Considering all the evidence and lack thereof, it

follows that there is no proof that the officers were authorized to arrest Petitioner. Without such

evidence, the Whitaker cannot establish that the officers of/for the NBPD were lawfully

discharging their official duties. As there is no evidence showing Petitioner's arrest was lawful,

he had the right to refuse to provide any information to the officers of/for the NBPD involved in

his unlawful arrest. Accordingly, the conviction of Petitioner for the alleged offense is not

authorized by the evidence. The officers of/for the NBPD, as well as the prosecutor, would have

it believed that a “person,” or anyone for that matter, can be arrested without having committed

an offense, in absence of any warrant, and then be required to provide information to the

arresting officer(s). Such an event is not contemplated or condoned by Sec. 38.02.

         In order for Sec. 38.02 (d) (1) to be applicable, it must be “shown on the trial of an

offense under [] section [38.02] that the defendant was a “fugitive from justice” at the time of the

offense.” A “trial” has not shown the Petitioner was “a fugitive from justice.” Further, and again,

there is no mention or evidence of an offense which Petitioner had committed giving rise to or

providing cause for his arrest, nor is there any evidence Petitioner was a “fugitive from justice,”

in fact, the record is bereft of any warrant for Petitioner, save the Capias challenged herein and

hereby. Furthermore, even if Petitioner had committed some offense and was lawfully arrested

by the officers of/for the NBPD, application of Sec. 38.02 (d) (1) would be premature in absence

of a “trial” to show that Petitioner was “a fugitive from justice.”

                                B. WITNESSES DISQUALIFIED

         As demonstrated supra, and within the documents attached hereto, the officers of/for the

NBPD are disqualified as witnesses due to noncompliance and misconduct, false arrest and

violations of procedural due process and due course of law, as well as dishonesty and deceit by

In re Jason Childress                                                                    Page 12 of 18
claiming Petitioner had been lawfully arrested while either failing or intentionally neglecting to

state for what offense Petitioner had been arrested for, in addition to, illegal seizure of property,

to wit: a video recording camera used by Petitioner to record the events leading up to his false,

unlawful arrest, which evidences Petitioner was unlawfully arrested and a false report had been

made against Petitioner: Jus ex injuria non oritur. “A right cannot arise from a wrong.” 4 Bing.

639.; Nemo punitur pro alieno delicto. “No one is to be punished for the crime or wrong of

another.”; Nullus commodum capere potest de injuri su propri. “No one shall take advantage of

his own wrong. Co. Litt. 148.”; Ubicunque est injuria, ibi damnum sequitur. “Where ever there is

a wrong, there damages follow.” 10 Co. 116.; Lex citius tolerare vult privatum damnum quam

publicum malum. “The law would rather tolerate a private wrong than a public evil.” Co. Litt.

152; see also Apx. Tab K pg.15 - 18, #31.

         Pursuant to the federal and state Rules of Evidence (see Apx. Tab K pg.36 - 37, #81. -

84.) and case law (see Apx. Tab K pg.37 - 39, #85. - 86.), Whitaker is not a competent and

qualified witness due a lack of personal knowledge and status as a prosecutor. Ida Paniagua is

not a competent or qualified witness pursuant to the federal and state Rules of Evidence due to a

lack of personal knowledge (see Apx. Tab K pg.36 - 37, #83.). Whitaker, is barred from

prosecution of the allegation and charge against Petitioner, due the trial court's lack of

jurisdiction, lack of evidence that Petitioner had committed any crime, inapplicability of Sec.

38.02 to Petitioner and a lack of any credible witnesses thereagainstr, and conviction of him for

the alleged offense is barred as a result of a bar to prosecution.

                        PLEADING SHALL BE CONSTRUED TO DO JUSTICE

          "Following the simple guide of rule 8(f) that all pleadings shall be so construed as
          to do substantial justice"... "The federal rules reject the approach that pleading is a
          game of skill in which one misstep by counsel may be decisive to the outcome

In re Jason Childress                                                                         Page 13 of 18
          and accept the principle that the purpose of pleading is to facilitate a proper
          decision on the merits." The court also cited Rule 8(f) FRCP, which holds that all
          pleadings shall be construed to do substantial justice. Conley v. Gibson, 355 U.S.
          41 at 48 (1957)

          "The assertion of federal rights, when plainly and reasonably made, are not to be
          defeated under the name of local practice. Davis v. Wechler, 263 U.S. 22, 24;
          Stromberb v. California, 283 U.S. 359; NAACP v. Alabama, 375 U.S. 449

          Pro se pleadings are to be considered without regard to technicality; pro se
          litigants' pleadings are not to be held to the same high standards of perfection as
          lawyers. Jenkins v. McKeithen, 395 U.S. 411, 421 (1959); Picking v. Pennsylvania
          R. Co., 151 Fed 2nd 240; Pucket v. Cox, 456 2nd 233

          "Pleadings are intended to serve as a means of arriving at fair and just settlements
          of controversies between litigants. They should not raise barriers which prevent
          the achievement of that end. Proper pleading is important, but its importance
          consists in its effectiveness as a means to accomplish the end of a just judgment."
          Maty v. Grasselli Chemical Co., 303 U.S. 197 (1938)

          The plaintiff's civil rights pleading was 150 pages and described by a federal
          judge as "inept". Nevertheless, it was held "Where a plaintiff pleads pro se in a
          suit for protection of civil rights, the Court should endeavor to construe Plaintiff's
          Pleadings without regard to technicalities. Picking v. Pennsylvania Railway, 151
          F.2d. 240, Third Circuit Court of Appeals

          It was held that a pro se complaint requires a less stringent reading than one
          drafted by a lawyer per Justice Black in Conley v. Gibson (see case listed above,
          Pro Se Rights Section). Puckett v. Cox, 456 F. 2d 233 (1972) (6th Cir. USCA)

          "... allegations such as those asserted by petitioner, however inartfully pleaded,
          are sufficient to call for the opportunity to offer supporting evidence. We cannot
          say with assurance that under the allegations of the pro se complaint, which we
          hold to less stringent standards than formal pleadings drafted by lawyers... ".
          Haines v Kerner, 404 U.S. 519 – 521, (1972)

          "Court errs if court dismisses pro se litigant without instructions of how pleadings
          are deficient and how to repair pleadings." Plaskey v. CIA, 953 F.2nd 25

          Nowhere can be found a competent attorney that is able to execute the proper
          remedy without embarrassing the Court, Corpus Juris Secundum 2d Vol. 7 section
          25.




In re Jason Childress                                                                        Page 14 of 18
                                     REQUEST FOR RELIEF

         For the reasons set forth herein, Petitioner, Jason Childress, requests that this Court grant

his Petition for Writ of Habeas Corpus and relieve Petitioner of his unlawful restraint resulting

from the void Capias.



                                                                            Respectfully submitted,

                                                                       /s/: Jason Childress
                                                                                      Jason Childress
                                                                                    9141 Gristmill Ct.
                                                                                    Fort Worth, Texas
                                                                          jchildress1980@gmail.com




In re Jason Childress                                                                      Page 15 of 18
                                         VERIFICATION


Executed without the United States:

         Pursuant to 28 U.S. Code § 1746 (a): I, Jason Truman Childress, Petitioner herein, in lieu

of Notarization of this document due to an inability to pay therefor, do declare, certify, verify

and state under penalty of perjury under the laws of the United States of America that I am a

living man, of lawful age and competent to testify to the facts stated herein, and that the facts and

statements made herein by me are true and correct.

                                                                     /s/: Jason Childress


Executed on this        3rd day of August , 2015.




In re Jason Childress                                                                       Page 16 of 18
                                    CERTIFICAT E OF SERVICE

        I, Jason Childress, Petitioner herein, hereby certify that a true and correct copy of this
Petition for Writ of Mandamus is being sent via email on this 3rd day of August , 2015 to
the following:


         Charles A. Stephens
         Comal County Court at Law 2
         Comal County Courthouse Annex
         150 N. Seguin, Ste. 301
         New Braunfels, Texas 78130

         Abigail Whitaker
         Comal County District Attorney's Office
         Comal County Courthouse Annex
         150 N. Seguin Ave. Ste. 307
         New Braunfels, Texas 78130

                                                                   /s/: Jason Childress
                                                                                  Jason Childress
                                                                               9141 Gristmill Ct.
                                                                               Fort Worth, Texas

Submitting this         3rd   day of August , 2015.




In re Jason Childress                                                                  Page 17 of 18
                                          NO.
                                                   In Re Jason Childress,

                                                                             Petitioner


                    APPENDIX TO AND FOR PETITIONER'S PETITIONS
                 FOR WRIT OF HABEAS CORPUS AND WRIT OF MANDAMUS


                                                       List of Documents

     1. “PR BOND”........................................................................................................    Tab B
     2. Petitioner's Letter to Trial Court.............................................................................. Tab C
     3. Trial Court Online Record Screenshot................................................................                 Tab D
     4. “COMPLAINT (OCA)”......................................................................................              Tab E
     5. RETURNED NOTICE........................................................................................              Tab F
     6. “AFFIDAVIT/FAILURE TO APPEAR”.............................................................                           Tab G
     7. “ORDER FOR ARREST-FAILURE TO APPEAR”...........................................                                      Tab H
     8. “CAPIAS-FAILURE TO APPEAR”...................................................................                        Tab I
     9. Affidavit for Countercomplaint...........................................................................            Tab J
     10. AFFIDAVIT OF COUNTERCOMPLAINT........................................................                               Tab K
     11. TABLE OF AUTHORITIES: POLICE REPORTS ARE HEARSAY.................                                                   Tab L
     12. TABLE OF AUTHORITIES: LAW OF VOIDS IN TEXAS..............................                                           Tab M
     13. Return Receipt: BOBBIE KOEPP.......................................................................                 Tab N
     14. Return Receipt: Kevin M. Schoch.......................................................................              Tab O
     15. Return Receipt: TOM WIBERT...........................................................................               Tab P
     16. Return Receipt: ABIGAIL WHITAKER.............................................................                       Tab Q
     17. DEMAND FOR DISMISSAL.............................................................................                   Tab R




In re Jason Childress                                                                                                       Page 18 of 18
