Sunday, February 15, 2015













 
MONTOYA, ANOTHER SWING AND A MISS - HERE IS THE HOMERUN HE MISSED

SUMMARY:

A void order is an order which is a legal nullity - hence even though it may exist in a file, legally it does not exist.  Judges can only issue orders based on constitutional, statutory or inherent authority.  If a statute exists on the question of law it governs.  In 1994/95,  a trial court could not issue a new order on sentencing only.  This was changed years later because of the problems it was creating.  It could have been the next day and it would still be void.

This means if the trial judge did in fact issue a new sentence then the order is a legal nullity, and the original order remains the only order - which would mean if a felony conviction issued it still exists.

In terms of the election, any mayoral candidate can pull certified copies of the subject orders - second floor of administration building maybe - but for certified you may need to go to the 3rd floor of the courts building.  I would start with the second floor of the administration building.

If any mayoral candidate were to file a challenge with the City Secretary with the proper certified orders, and the case law below, Mark Sossi would have no choice but to remove Erasmo's name from the ballot.  If Sossi failed to remove Erasmo from the ballot, the candidate doing the challenge would have to sue in court to force the issue.  If Sossi were to remove Erasmo then he would have to sue to get his name back on the ballot.

THE PICKEL ERASMO DOES NOT WANT TO FACE

The press will cover this story.  Saenz will be pressured to do his job whether he wants to or not.  All Saenz's has to do is file a motion with the original court citing the Bates and Hight cases and the trial court would have no choice but to void the second sentencing order thereby leaving Erasmo with a felony conviction, to the extent that was the original order.  The potential legal problems which will follow from this reality are beyond anything I am willing to research.

If Saenz fails to do his job, and a civil court forces Erasmo's name from the ballot, then Saenz will have even more problems in terms of his public image.  Pat Ahumada would love to humiliate Saenz on this issue.

There it is in a nutshell.  Juanito just ran with some really bad research which made it all convoluted when all he had to say is in 1994/95, a trial judge could not grant a new trial on sentencing only and therefore the order is void. 

NOW FOR THE LAWYERS AND THE INEPT SAENZ AND SOSSI

The lawyers will be brought back to the nightmare of finals in law school.  If you fail to address every issue, you do not get the points.  Collateral attack, legal nullity, statutory jurisdiction, laches, detrimental reliance, Due Process - etc.

Sossi may come up with the excuse that until Saenz does his job the city cannot remove Erasmo from the ballot - wrong - but then Sossi is not known for his knowledge of the law or legal research.

In law this is known as a collateral attack on another court's order.  The key word is order - if the order is void it does not exist so you are not collaterally attacking it.

It is permissible to collaterally attack a judgment of one court in another court of equal jurisdiction if the underlying judgment is void.  Browning v. Placke, 698 S.W.2d 362, 363 (Tex.1985).

IS THE SECOND SENTENCING ORDER VOID, TO THE EXTENT IT EXISTS?

Yes, - because the trial court had no jurisdiction to issue such an order it is void - a legal nullity.

This Court's recent decision in State v. Bates, 889 S.W.2d 306 (Tex.Cr.App. 1994) controls the disposition of the instant case.1 In Bates we affirmed the Eastland Court of Appeals' ruling that a trial court does not have authority to grant a new trial as to punishment only.2 In Bates this Court stated that a new trial for the punishment stage of a criminal action may be granted under Tex. Code Crim.Pro. Art. 44.29. Bates, 889 S.W.2d at 310. However, only appellate courts may grant new trials as to punishment only. Article 44.29(b) reads in pertinent part:

State v. Hight, 907 S.W.2d 845 (Tex. Crim. App. 1995)

WHAT ABOUT FAIRNESS AND THE TIME WHICH HAS ELAPSED?

Laches in simple terms is an equitable form of limitations - it means if you wait too long to do something you lose.

"However, laches is not applicable when the order subject to the mandamus proceeding is void. See Zimmerman v. Ottis, 941 S.W.2d 259, 262 (Tex.App.Corpus Christi 1996, orig. proceeding) (“Since mandamus relief in the present case is premised on the entry of a void order, it would not serve the interests of justice or those of the parties to invoke laches as an excuse to ignore that order, and thus to allow the parties to expend further time and effort in connection with a lawsuit that must ultimately be dismissed by the Collin County court or reversed on appeal for want of jurisdiction.”). Therefore, laches is not a bar to mandamus relief in this case".

IN RE: Curtis and Shelley CHESTER, Relators.

What this means is, if the trial court were to deny Saenz's Motion he would be able to take the trial court on mandamus to force the issue.

MY COMMENTARY ON THE ISSUE

In the case of Joe Rubio, [I actually worked on his case through Ben Neece for free), Zeke Silva and now Erasmo Castro, I say Texas law concerning felons running for elective office is bullshit.  I believe in redemption and in my opinion the law discourages good behavior.

The case of Erasmo raises the question of "detrimental reliance," and Due Process.  Substantively the doctrines align, but the U.S. Supreme court has yet to rule on the issue in a clear way.

It has been so many years, so fairness would say laches applies - but because the second order is a legal nullity, laches will not apply.  But after so many years relying on the order of the court is it fair to now change what Erasmo believed to be his status?

Equity requires both sides go into court with clean hands.  The State could have appealed the second sentencing and would have won.  So the State sat on it, and now 20 years later gets to ask the court to fix what the state could have fixed 20, years ago.

You can hate Erasmo all you want, but is your hate so deep that you think this is fair?  the fake Cristian Zeke Silva will tell you this is what Jesus wants.

Now, the law is not on his side, but these type cases are what cause the courts to rethink their previous legal reasoning.

For now I stand with the law.  What is sad is there is no competent lawyer in Cameron county to handle the complex legal issues Erasmo is facing.  The trial court has no choice but to reinstate the original sentencing order, to the extent a second did in fact issue.  Sossi has no choice but to remove Erasmo from the ballot based on the law.

But in the right hands, I believe this case could take on a life of its own and force the Texas Court of Criminal Appeals [motion filed by Saenz]  or Texas Supreme Court [challenge to name on the ballot], to rethink its previous rulings.

Legally, nothing is changing after 20 years because the second order does not legally exist.  But for 20 years people believe it did.  It changes rights.

The state failed by not filing the initial appeal.  The trial court failed by not following the law.  But under the law the only one punished is Erasmo Castro.  Due Process demands fairness.

So once again the lawyers and judges get to mess up and the defendant is screwed.  Our legal system is broken and I have been saying this for over 20 years. 

This is a great case for the U.S. Supreme Court - but unfortunately for Erasmo there are no qualified lawyers in Cameron county to handle such a complex constitutional case. This case will require a lot of work.

2 comments:

BobbyWC said...

I made a lot of phone calls today on this issue and the consensus is none of the mayoral candidates will file a challenge.

If Pat Ahumada were to file a challenge then Erasmo's votes would probably go to Brenda Joyas. It is a losing situation. Neither Tony nor Brenda would consider filing a challenge.

As to Saenz with a legal challenge in civil court he has no reason to expend limited resources over a 20 year old case.

So I suspect the this story ends today.

Any one who files the challenge hangs themselves with Erasmo's supporters. Saenz has no reason to spend years going through an appellate process in a case which serves no end.

Erasmo will not be in the run off so there is no issue.

The story bought and paid for by Zeke Silva is a bust.

Bobby WC

Anonymous said...

Shut up bobby. Yesterday was Presidents Day and the County was closed. You didn't call anyone. It is your own statement.

Dude quit lying to the people. I don't even think you believe your own lies.

Let me rephrase that... I do think you believe your own lies.