Wednesday, October 5, 2016



Judge Ben Euresti moves Marisa Hernandez Motion for Temporary Injunction to October 21, 2016.  I suspect he is trying to give Ernesto Gamez time to whip her into place and drop the lawsuit.

10/04/2016  Order (Judicial Officer: Banales, J. Manuel )
Order Re-Setting Hearing on Application for Temporary Injunction
10/21/2016  Temporary Restraining Orders Hearing  (8:30 AM) (Judicial Officer Euresti, Benjamin, Jr.)
10/10/2016Reset by Court to 10/21/2016


In her affidavit she also claims Jim Barton is a defendant, but did not include him in the lawsuit.  Remember, "in her affidavit."

It must be remember Marisa Hernandez is merely an accused defendant who remains innocent until convicted otherwise.   She is accused of failing to render aid with a fatality to Mary Tipton.  The key word is accused, not convicted.  But because she hired morons Erique Juarez [I know the spelling is wrong, but that is how he spelled it in the pleadings] and Robert H. Mendoza, she lost round one when visiting Judge Bañales denied her Motion for a Temorary Injunction.  

I have lost count how many times the BV has explained this - you cannot get a temporary injunction against speach.  It is called prior restraint.  This was my first win with the Texas Supreme Court, which has affirmed the opinion, and the U.S. Supreme Court, orders of prior restraint are unconstitutional.

"While abuse of the right to speak subjects a speaker to proper penalties, we have long held that “pre-speech sanctions” are presumptively unconstitutional. Davenport v. Garcia, 834 S.W.2d 4, 9 (Tex. 1992); see also Ex parte Tucker, 220 S.W. 75, 76 (Tex. 1920)."

Not withstanding this well established law Judge Bañales has set the matter for hearing on the Monday at 1 p.m. in the 107th.

This court is bound by the law handed down by the Corpus Christi Court of Appeals.

"Pirmantgen v. Feminelli, 745 S.W.2d 576, 579 (Tex.App. — Corpus Christi 1988, no writ) (restriction against disseminating an allegedly libelous letter was an unconstitutional prior restraint)."

Now I will be honest, I could plausibly fashion an argument for prior restraint in this case.  The problem is, did Hernandez bring it in the wrong court?

In paragraph 10 of her sworn to affidavit she says Tipton's and Ahumada's speech deny her an "opportunity to select an impartial jury from the Cameron County Jury Pool." 

In paragprah 15 she may have committed perjury or even felony perjury." "I have no adequate remedy at law."  Well she does and it is used in cases exactly like this, even if the claims against her are true.

From the Texas Rules of Criminal Procedure

Transfer Venue based on inability to receive a fair trial.  This is a real remedy and her claim otherwise is false.

Art. 31.01. ON COURT'S OWN MOTION. Whenever in any case of felony or misdemeanor punishable by confinement, the judge presiding shall be satisfied that a trial, alike fair and impartial to the accused and to the State, cannot, from any cause, be had in the county in which the case is pending, he may, upon his own motion, after due notice to accused and the State, and after hearing evidence thereon, order a change of venue to any county in the judicial district in which such county is located or in an adjoining district, stating in his order the grounds for such change of venue.


If I were Ernest Games I would have my client on the phone immediately demanding she non-suit the civil case.  She signed an affidavit as to facts without claiming the Fifth Amendment right against self incrimination.  Where did she find these civil attorneys?

Under what is known as the Offensive Use Dcotrine she will now have to answer every question related to every claim she has made.  She cannot claim the Fifth Amendment.  She may have outright waived it at this point.  But at a minimum if Tipton's and Ahumada's attorneys can show she is using the Fifth Amendment to avoid testifying about material issues to her defamation suit, the court can dismiss same with sanctions.  This will be a front page headline which will only serve to make her seem guilty.  Claiming the Fifth in a civil case before a jury is selected in a criminal case is beyond moronic and she cannot blame Tipton or Ahumada for that stupid mistake.


The DA took the hint from Gamez at the previous hearing and Amended the Indictment to use the language from the statute.  Here is a rule of thumb.  Defense counsel should not even whisper about problems with an indictment.  You hold until the jury is sworn and then file your motion to quash the indictment.  If it is in fact defective, it is dismissed and double jeapordy applies.  Gamez never should have said anything.

Today both sides and Judge De Coss worked as the court should work.  Because of some pending DNA evidence, and the new indictment sometime at an unknown date both sides are to work with the court staff to create a new scheduling order.  This will take the case past the election and most likely into January, which means Rincones could be the judge.

I am concerned with the Indictment.  It says the victim was Maria Elizabeth Guzman.  Ralph Tipton is adament his marriage licence shows she took his name of Tipton.  This could be a problem.  If her legal name is Mary or Maria Tipton a conviction based on the death of Maria Guzman could be problematic.

Now to be fair Ralph Tipton's attorneys filed in their civil lawsuit Mary Tipton, aka, Maria Elizabeth Guzman.  I have no idea what the vicitm's legal name is.  But a smart DA would amend the Indictment again to say Mary Tipton, aka Maria Tipton, or Maria Elizabeth Guzman.  This will void any problems.

No comments: