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INFORMED CITIZENS
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To the Honorable Attorney General Ken
Paxton,
Request for
correction of false statements of law and fact
I will presume it is not
intentional but any implication from the Office of the Attorney General that Heimlich's innocence was less than
actual is a misrepresentation of the Law and of the Facts. The Law and
the Facts have been adjudicated to final conclusion in the long course
of litigation that began with State v. Heimlich and ended with Heimlich
v. State. The Office of the Attorney General has a fiduciary duty to the State it
represents, and to the Public it serves, to correct the misrepresentation;
or, to correct any incorrect impression. An incorrect impression constitutes an unintentional
misrepresentation.
To achieve this it is
requested the Attorney General call the Chairs of the Senate Finance
Committee and House Appropriations Committee to advise them that the
payment of the Final Judgment Heimlich secured upon the State is not
opposed by the Office of the Attorney General. Alternatively, a letter
from the Attorney General or a single point of contact assigned to
insure that no unintentional misrepresentation is made and past
incorrect impressions are corrected.
The last word on the Heimlich
case is a memorandum opinion of Justice Pemberton in 2008 . The ruling
is found in the second paragraph and the last. Justice Pemberton wrote:
In State v. Young we determined that the legislature in chapter 103 intended to waive
sovereign immunity only for claimants who obtained habeas corpus relief
from their convictions based on “actual innocence.” No. 03-07-00572-CV, ___
S.W.3d___, ___Tex. App.—Austin July 31, 2008, no pet. h). Young controls here and, under its analysis, Heimlich’s
wrongful-imprisonment claim is barred by sovereign immunity.
We also conclude that Heimlich’s takings claim is supported by legally
insufficient evidence. Accordingly, we will reverse and render judgment
dismissing Heimlich’s wrongful-imprisonment claim for want of
subject-matter jurisdiction, and that Heimlich take nothing on his takings claim.
All Attorneys have a duty to
know, the structure of our courts. A licensed Attorney should know but
may not, or may have forgotten, if they do not practice appellate law;
But, an Appellant Attorney will recognize that the ruling in the second
review of the case of Heimlich v. State is in the second paragraph until
you get to the end where the same is repeated; “dismissed
for want of subject-matter jurisdiction”, “barred by sovereign
immunity”,
and possibly most important of all this statement, “Young controls
here”,
referring to State v. Young.
To translate for those who
are not Attorneys or do not practice in the Appellate Courts this is
what it means in simple, layman, terms. It means, according to at
Judicial Official that wrote this opinion, the Legislature did not
grant permission to Heimlich to bring a lawsuit against the State of
Texas. It also means you must look to State v. Young. A memorandum
opinion has to be grounded on a prior opinion that established a firm
precedent. In this case, State v. Young. Therefore the State v. Young
opinion must be read to avoid being
misled by, or getting the wrong impression, from the immaterial and
irrelevant comments of author of the memorandum opinion. The
ruling that “controls
here” must be
looked at. And here is the conclusion in Young;
we must conclude that the legislature intended to provide a remedy
solely to the wrongfully convicted who cannot for whatever reason,
obtain relief through available direct appeals.
Justice Pemberton wrote 'cannot' in the Young brief. He must have meant 'did not'
because both Young and Heimlich DID obtain relief from
their convictions. This
helps reveal Justice Pemberton's mindset, his bias, his prejudice. He is treating Heimlich and Young as if they
remain convicted and are seeking relief from that conviction.
But there
is no conviction! It was reversed. Not simply reversed, but an acquittal
was ordered as well in Heimlich's case. He was found not guilty, he was
found
innocent, and he was found innocent by a
standard that equates to Actual Innocence.
Those who practice appellate law in cases where the
State (government) is a defendant also know that the courts split hairs
over suit and liability. The legislature may have granted permission for
suit, but liability is limited. Conversely, The State may be liable (have
a legal obligation) but the courts say the legislature did not grant
permission for suit ('waive immunity' / give courts 'subject matter
jurisdiction'). An example is the administrative claims process through
the comptroller used to compensate victims of wrongful imprisonment and
crime victim's compensation. The State has assumed liability but has not
granted permission to suit.
The issue of liability of the State (a finding of legal
obligation) must be viewed has having been established by the 3rd Court
of Appeals in the prior review and in the trial court as a question of
fact. Justice Pemberton must have recognized this or he would have used
language different from "lack of subject matter jurisdiction" and
"waiver of sovereign immunity" and "Young controls here", which are
questions of law - not of fact. These
terms apply only to permission to bring a suit. The Liability of the
State remains.
The establishment of
Heimlich's actual innocence came when he obtained relief from his
conviction on direct appeal. A mandate of acquittal followed when the
Court of Criminal Appeals found no cause for review.
Heimlich's Actual Innocence is now a
fact, an adjudicated fact, not subject to new review or reversal. Similarly; Young's
conviction was reversed on direct appeal. As you know, A Writ of Habeas
Corpus to obtain relief from a conviction becomes necessary only if
relief from a conviction was not obtained on direct appeal. Justice
Pemberton's interpretation of the statutory waiver allowed compensation
only if the conviction held on direct appeal and again held if
previously reviewed upon petition to the Court of Criminal Appeals. Also
from the Young ruling;
In this jurisprudential
context, the legislature's use of the phrase "has been granted relief
based on actual innocence" thus connotes both a specific standard of
proof and a
procedural framework through which such relief is obtained--a writ of
habeas corpus.
"ultimately obtained acquittal
on grounds of legal insufficiency of the evidence in his direct appeal.
We conclude that it does not include such claimants, but instead manifests
the legislature's intent to limit chapter 103's waiver solely to
claimants who have obtained habeas corpus relief".
Justice Pemberton, writing
for an intermediary Court of Appeals, did not have jurisdiction to rule
on Actual Innocence when Actual Innocence had already been established
by another intermediary Court following submission of his case to the
higher court, the Texas Court of Criminal Appeals. For him to publish an opinion stating,
or implying, that Heimlich's innocence as anything
other than actual is libelous. It is, as well, a misrepresentation of
law and fact for which remedial measures are required. The same is true
if it should come from the Office of the Attorney General.
The following of a recorded
conversation with Chief Justice Rose of the Third Court of Appeals
proves that the rest of the memorandum opinion is commentary that
misrepresents the law and the facts, or is interpreted in such a way as
to give a false impression that misrepresents the law and the facts.
Heimlich's Actual Innocence, as the phrase is understood and applied by
the Courts when ruling on a Writ of Habeas Corpus, has been established
and is not subject to review or reversal. Here are the questions given
to Justice Rose and his answers. It is, as well, common knowledge to any
who know the structure of our Texas Courts. It is required knowledge of
any licensed to practice law.
Can a Court of Appeals ('COA') overturn a finding, implied by
operation of law, by the Texas Court of Criminal Appeals?
Answer: NO.
Can the Texas 3rd COA overturn or reverse findings of fact and law of
the Texas 14th COA?
Answer: NO.
Can a District Court, in a Civil Trial, overturn or reverse finding
Law and order of Acquittal by a COA?
Answer: NO.
As you know; the accused in a criminal case is presumed innocent at
trial, but if the verdict is guilty the burden is now on the defendant
and the burden the defendant must meet is very high to over come the
presumption of guilt. Even higher than beyond a reasonable doubt if he
is to obtain relief from the conviction with an acquittal. Is this
Correct?
Answer: Yes.
CONCLUSION:
The foregoing confirms that Justice Pemberton and the 3rd COA did not
have jurisdiction to rule on Heimlich's innocence, actual or otherwise,
and that any implication to that affect is a false statement of law and fact
for which all Attorneys have a duty to take remedial measures to
correct.
Justice Pemberton must know Heimlich's innocence, actual or otherwise, was not an issue
he could rule on. But he hid
the only possible excuse for depriving Heimlich of his right to
restitution in the Young opinion. It is there that we see his absurd
interpretation of the statute as limited to those whose actual innocence
came only after they failed to prove it on direct appeal. He then gives
the impression in his memorandum opinion on the State's appeal
Heimlich's Final Judgment that a question of guilt or innocence was at
issue. His opinion reveals a malice, an animosity, and an intent to harm
Heimlich. The motive is obvious from the footnotes. Justice Pemberton
hates those who are pro se. A review of his record also reveals that he
never rules in favor of a criminal defendant. He never reverses a
conviction. The commission on judicial misconduct would not act. But the
court of public opinion can and will, if this becomes necessary.
Legal Insufficiency of the evidence with acquittal
is
synonymous with actual innocence
As any Attorney with
knowledge of appellate law in Texas knows the burden to obtain relief
from a conviction with an acquittal is greater, the bar is higher, than
it is to get an acquittal at trial. The burdens is
"beyond a
reasonable doubt in the light most favorable to the prosecution". By
contrast; at trial, the presumption of innocence mandates that evidence
and law be in the light most favorable to the accused.
For a finding of 'legal
insufficiency of the evidence' the standard is even higher this it is
for a finding of factual insufficiency of the evidence. A legal
insufficiency finding requires that the Court of Appeals look only at
evidence that favors conviction and ignores evidence that does not.
Because the burden so great, the bar set so high, our Texas Court of
Criminal appeals has found in cases of review granted on a writ of
habeas corpus that 'actual innocence' and 'legal insufficiency
of the evidence' are legal phrases of identical meaning. They are
synonymous and require acquittal.
The word acquittal is
as a technical term utilized in the courts, and in common meaning, is
synonymous with innocent and synonymous with not guilty. A person
licensed to practice law has a duty to know this and to tell others that
these are terms of identical meaning.
By contrast relief from
conviction on grounds of factual insufficiency of the evidence on review
granted on writ of habeas corpus can result in relief from a conviction
without a finding of not-guilty, innocence or acquittal. This finding by
the Texas Court of Criminal Appeals can result in relief from the
conviction with the case being sent back to the trial court where the
prosecution then chooses to not retry the case. As a result there are
many popularly referred to as exonerees have been compensated by the
State of Texas for an imprisonment found to have been wrongful. They
were released on new evidence that found factual insufficiency of the
evidence and the State chose to not retry the case. They gained “relief
from the conviction on habeas corpus”, as required by the statute for an
administrative claim for compensation, but there was no ruling of an
acquittal, or finding of not-guilty, or finding by the court of Actual
Innocence. The well known case of Michael Morton is an example.
By contrast in
Heimlich's case there was no crime. The State, and even the
appellate court that ordered the acquittal, implied their might have
been a crime if Heimlich had not paid the agent when payment was
due. While this may provide cover for the State Actors involved it is
obvious to any licensed to practice law to be misleading and a false
statement of law.
IF, that
was Heimlich's intent, and IF that had occurred, it would
have been a breech of contract. Upon an action in the civil courts it
might be found to be a debt. Our Texas Constitution bars imprisonment
for debt. A debt, or inability to pay a debt, is not a crime.
A
crime is an action or omission that constitutes an offense
as established by statutory law as an offense
that may be prosecuted by the State.
An act or omission that (1) does not constitute an offense; and (2) may
not be prosecuted by the State, is not a crime! Obviously, without a
crime there cannot be guilt or the opposite of Actual Innocence.
People are not inherently guilty. Actual Innocence is
their birthright and their natural state of being. Surely this is taught
in Law School and known by all Attorneys. It is taught to all
Christians and re affirmed every Easter. It is a natural Right
secured by our US Constitution as the presumption of innocence.
People are entitled to
their own opinions and can use words in a colloquial manner to express
their opinions. Judicial Officials and Officers of the Court have a duty
to avoid doing so when the result is, even if unintentional, a false
statement of material fact or law. Remedial measures are required.
The remedial legal
measures - that is; the payment of the Final Judgment - remains
possible. Our Legislature is a 'Tribunal'. All that is required is for
our Attorney General to acknowledge that the Legislature can make an
appropriation for the payment of it. Please let them know that you are
not opposed to the appropriation as the question of whether or not it is
a legal obligation of the State is a question for the Legislature.
Thank you for your prompt attention to this matter,
CC: Chief
Justice Rose and Justice Robert Pemberton
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