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ADAMIOI‘S
BARBARA GLADDEN
DI§IJ
CAUSENO /3 /§"/@7}0’CVJUL05:EII
RE CEIVED ANDH
FOR RECOH
FILED
04%
V
IN THE COMMITMENT OF § IN THE DEWEOTE
§ MONTGOMERY COUNTY
m W708 6124.244! ‘I/ c L uj’r/n § 435TH JUDICIAL DISTRICT
RESPONDENT'S MEMORANDUM RESPONSE TO STATE'S OPPOSITION
MOTION/MOTION FOR CONTINUANCE
TO THE HONOR/.DLE JUDGE OF SAID COURT:
Comes now,ma/ 17',‘ L V1754 , Respondent in the above styled and
numbered cause, Jcting Pro Se respectfully requests leave of Court to file this Respondent's
Memorandum Response to State’s Opposition Motion. Notwithstanding, Respondent
respectfully moves the Court to grant and filethis included Motion for Continuance, pursuant
to Texas Health and Safety Code (HSC) 841.063, and the Texas Rules of Civil Procedure (T.R.C.P.)
251-252. Stating that the continuance is not sought for delay, but that justice may be done;
regarding the hearing by submission on the Change of Venue scheduled for June 16, 2017.
INTRODUCTION
SCANNED
Respondent objects to the State’s argument concerning properjurisdiction and venue,
because he did not raise this issue in his original Motion to Change Venue. The issue raised and
in question is whether Respondent can receive a fair and impartial trial,orjury in Montgomery
County. This "501.3 issue isthe basis of Respondent’s Motion to Change Venue, not proper
jurisdiction or venue.
In objection to the State’s arguments, Respondent would respectfully show the Court
the following:
1. Respondents reasserts the claims raised in his original Motion for Change of Venue,
pur5uant to the Texas Rules of Civil Procedure (T.R.C.P.) Rule 257(a)(c) which states, "(a)
Page 1 of 7
that there exists in the county where the suit ispending [ongoing] so great a prejudice
against him that he cannot obtain a fair and impartial trial,(c) that an impartial trial
cannot be had in the county the [ongoing] action is pending.”
Regardless of the State’s ad hoc arguments contained in their Opposition Motion, the
burden of proof ison the State to disprove Respondent’s claims raised in reference to
T.R.C.P. Rule 257(a)(c), and evidence supporting the facts contained in his original
Motion to Change Venue.
The State’s argument contained intheir Opposition Motion, that jurisdiction and venue
are proper in Montgomery County, is not the issues raised in Respondent’s original
Motion to Change Venue. The State neglected, avoided, and completely failed to
disprove the issue raised by Respondent, which is: he cannot receive a fair trial or jury in
Montgomery County.
In the Change of Venue Motion, Respondent factually supports his assertion of the
T.R.C.P. Rule 257(a)(c} by offering evidence in the form of an exhibit (See Exhibits 1-3),
which is documentation of a previous civilcommitment trial held in Montgomery
County. In Re the Commitment of Robert Burns McCall, Reporter’s Record Volume 3,
pages 85-90. This is the voir dire being conducted by the State prosecutors, and it is
dated January 26, 2015.
During the voir dire process (be itnoted), several venire persons had previously set on a
jury during an SVP civil commitment trial in Montgomery County. Thereby giving rise to
the credibility that a potentially biased opinion is/has been formulated in their “mind’s”
prior to trial, as stated in Respondent’s original Motion to Change Venue.
The following direct quotes are taken from the Reporter’s Record, pages 85-90 (See
Exhibits t-3): venire person number 22 stated, ”yeah. I just sat on this type ofjury two
years ago,” referring to an SVP trial. Then the State asked, ”ifa verdict was reached,"
and they answered, "yes.” Prosecution then asked, "are you able to put aside anything
you learned about the case, put itout of your ’MIND,’ and decide the case just based on
the facts you hear in this court?” They responded with a biased and prejudicial answer,
”I
can do that, but memories come back.” The thought of "memories coming back,”
Page 2 of 7
haunting the venire person elicits a prejudicial connotation in their mind. (Emphasis
added).
The biased statement concluded by venire person 22 substantiates the claims raised by
Respondent in his original Motion to Change Venue stating, ”[ejmpanling an impartial
jury to hear and rule on evidence presented at any civil commitment hearing, or any
other judicial aspects involved in the civilcommitment process, isquestionable. The
beyond a reasonable doubt standard is 'null and void,’ when a biased jury panel has
possibly formulated an opinion ofthe case (in their minds) during voir dire, or at trial."
See Respondent’s Change of Venue, page 2, paragraph 1.
Seventeen-years of civilcommitment proceedings being adjudicated in Montgomery
County has developed a tainted jury pool, and empaneling an impartial jury isminimal
at best. The outcome of Respondent’s future civilcommitment proceedings and
freedom are at stake! Changing Respondent’s venue is the only redress at correcting the
scales ofjustice.
Nevertheiess, venire person 21 also claimed to have set on a jury during an SVP civil
commitment trial in Montgomery County, along with venire person 36, which
commented they had set on a jury in Montgomery County in Judge Sieler’s courtroom.
The facts ofthe case were, ”was the judge going to keep custody of a pedophile.”
(Paraphrased). Although venire person 36 is questionable, if itwas an actual civil
commitment trialthey sat in on, Respondent contends in his belief, they did therein set
in on an SVP civil commitment trial in Montgomery County. That would total three
venire persons who sat on a jury, at an SVP civil commitment trial at Mr. McCall's voir
dire.
10. The facts contained in the court transcripts in Re the Commitment of Robert Burns
McCall validate and assert the factual truth that Respondent believes he cannot receive
a fair impartial trialor jury selection ifhis venue isnot changed from Montgomery
County, Texas.
11. Therefore, Respondent hereby declares a prejudice so great exists against him in
Montgomery County, where the pending [ongoing] cause of action exists, and thereby
Page 3 of7
concludes the only hope of receiving a fair and impartial trial isto change the venue of
the existing cause of action, i.e. his ongoing civil commitment docket and caseload.
PROPER SUBJECT MATTER JURISDICTION
ln objection to the State’s argument, that Respondent just “chose” a county to change
the venue to, Respondent respectfully considered the proper selection of a county that would
be pursuant "with" HSC 841.041(a) which would be the county of his last sexual conviction. The
subject matterjurisdiction being in the county of his last sexual conviction would comply with
proper subject matterjurisdiction, because Respondent did not ”choose" a random county to
change the venue to, but considered the Legislative intent mandated by the newly revised
Senate Bill 746 (SB 746), and HSC 841.041(a).
The Legislative intent to have civilcommitment trials inthe county of the potential
predator’s last county of sexual conviction, and NO longer exclusively in Montgomery County
arose from constitutional considerations, among others, but Respondent asserts, "he believes it
was the biased nature (of EXCLUSIVE venue and jurisdiction) that fueled the needed change.
HSC 841.0511(a) gives rise to proper subject matterjurisdiction, not because Respondent
arbitrarily chose the county of his last sexual conviction as a proper venue, but because it is
pursuant ”with” jurisdiction as dictated inthe newly amended 58 746, and HSC 841,041la).
According to State's contention, in their Opposition Motion, page 3, paragraph 2, Respondent
just ”chose” where he would ”like" the venue to be. Contrary to their argument, Respondent
asserts he cannot receive a fair and impartial trial or jury in Montgomery County, and this is the
"SOLE” basis to request a Change of Venue. To better comply and stay within the parameters of
HSC 841, Respondent "chose" the county of his last conviction, because it suited the proper
subject matterjurisdiction and venue pursuant "with" 841.041(a).
The T.R.C.P. clearly states that a venue can be changed ifgood cause exists for such an
action. Respondent has proved beyond a reasonable doubt that a fair and impartial trial orjury
selection in Montgomery County isquestionable. The Texas Constitution, article 3 § 45 states,
Page 4 of 7
"the power to change venue in civiland criminal cases shall be vested in the courts, to be
exercised in such a manner as shall be provided by law, and the Legislature will pass laws for
that purpose."
LEGISLATIVE INTENT
In contention to the State’s argument, they repeatedly state, ”the Legislature intended
this, or did not intend that." (Paraphrased, Emphasis Mine). However, they absolutely failed to
disprove Respondent’s argument that he cannot receive a fairand impartial trial,or jury in
Montgomery County. According to the Texas Constitution, article 3 § 45 itstates, ”The
Legislature shall pass laws for the purpose," of giving courts the vested right to Change Venue
in civiland criminal cases. It did not specify SVP cases are immune from venue changes, itsaid
courts have the right to change venue, and did not specify for what particular reasons.
Jurisdiction and venue are proper for Respondent to request his venue to be changed to
the county of his last sexual conviction, and courts have that right to decide this, and the
Legislature enacted laws for that purpose, and NOT TO THWART THEM.
CONCLUSION
Respondent reasserts, he cannot receive a fair and impartial trial, or jury in Montgomery
County, pursuant to T.R.C.P. Rule 257(a)(c). Therefore, he requests a Change of Venue to the
county of his last sexual conviction, pursuant ”with” HSC 841.041{a), which gives rise to subject
matter jurisdiction.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Respondent prays the Honorable Judge Patti McGinnis,
of the 435th Judicial District in Montgomery County will consider this Respondent’s
Memorandum Response to State’s Opposition Motion, and change Respondent’s venue.
Moreover, that the Honorable Judge grants this included Motion for Continuance, pursuant to
HSC 841.063, and T.R.C.P. Rule 251-252, and sets a hearing date allowing both parties of record
to argue their case before the Honorable Judge on the Change of Venue Motion.
Page 5 of?
CERTIFICATE OF SERVICE
I, m 614/4 [Wu/c C 3,7: [tn/r4, hereby declare a true and correct copy of
this Respondent’s Memorandum Response has been mailed to all parties of
record, pursuant to T.R.C.P. Rule 21(a), and to the District Clerk’s Office of
Montgomery County, at PO. Box 2985, Conroe, Texas 77305.
Mailed onthe /°l ,dayof fun a. 2017.
Marl-:71 (“glob/pd [Uf‘fl
Printed Name of Respondent
\
07A ‘-
fljCC5-7/7
M5/7l—1l/1 Lufcq
Texas Civil Commitment Center
2600 South Sunset Avenue
Littlefield, Texas 79339
Page 7 of 7
UNSWORN DECLARATION
My name is [rm/pm 53', q ,{0 (v/( A «rm , my date of birth
' “ 7
is
‘4/
{9‘
cl
G ,and my address is at the Texas Civil Commitment
Center, 2600 South Sunset Avenue, in the United States. Ideclare under penalty
of perjury that the foregoing instrument, Respondent's Memorandum Response
to State’s Opposition Motion/Motion for Continuance is true and correct.
I
Executed on /(’/ day of jL/x’l CL .2017.
ma/7l’"/)t Cv7/4
Printed Name of Respondent
{A V
v
a
(/1 @36677/6/
47’; 6/ {A l.
exas lVllCommitment Center
2600 South Sunset Avenue
Littlefield, Texas 79339
Attn: Barbara Adamick
Montgomery County District Clerk
PO. Box 2985
Conroe, Texas 77305-2985
Date: C“/C///7
mwfia (VJ—6’"? “(WW/q
Texas Civil Commitment Center
2600 S. Sunset Ave.
Littlefield, Texas 79339
Dear m/ v
a5/2,
The Hearing has been set for the following date:
Signed on this , day of ,2017.
District Clerk Court Coordinator
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ADAMIOI‘S BARBARA GLADDEN DI§IJ CAUSENO /3 /§"/@7}0’CVJUL05:EII RE CEIVED ANDH FOR RECOH FILED 04% V IN THE COMMITMENT OF § IN THE DEWEOTE § MONTGOMERY COUNTY m W708 6124.244! ‘I/ c L uj’r/n § 435TH JUDICIAL DISTRICT RESPONDENT'S MEMORANDUM RESPONSE TO STATE'S OPPOSITION MOTION/MOTION FOR CONTINUANCE TO THE HONOR/.DLE JUDGE OF SAID COURT: Comes now,ma/ 17',‘ L V1754 , Respondent in the above styled and numbered cause, Jcting Pro Se respectfully requests leave of Court to file this Respondent's Memorandum Response to State’s Opposition Motion. Notwithstanding, Respondent respectfully moves the Court to grant and filethis included Motion for Continuance, pursuant to Texas Health and Safety Code (HSC) 841.063, and the Texas Rules of Civil Procedure (T.R.C.P.) 251-252. Stating that the continuance is not sought for delay, but that justice may be done; regarding the hearing by submission on the Change of Venue scheduled for June 16, 2017. INTRODUCTION SCANNED Respondent objects to the State’s argument concerning properjurisdiction and venue, because he did not raise this issue in his original Motion to Change Venue. The issue raised and in question is whether Respondent can receive a fair and impartial trial,orjury in Montgomery County. This "501.3 issue isthe basis of Respondent’s Motion to Change Venue, not proper jurisdiction or venue. In objection to the State’s arguments, Respondent would respectfully show the Court the following: 1. Respondents reasserts the claims raised in his original Motion for Change of Venue, pur5uant to the Texas Rules of Civil Procedure (T.R.C.P.) Rule 257(a)(c) which states, "(a) Page 1 of 7 that there exists in the county where the suit ispending [ongoing] so great a prejudice against him that he cannot obtain a fair and impartial trial,(c) that an impartial trial cannot be had in the county the [ongoing] action is pending.” Regardless of the State’s ad hoc arguments contained in their Opposition Motion, the burden of proof ison the State to disprove Respondent’s claims raised in reference to T.R.C.P. Rule 257(a)(c), and evidence supporting the facts contained in his original Motion to Change Venue. The State’s argument contained intheir Opposition Motion, that jurisdiction and venue are proper in Montgomery County, is not the issues raised in Respondent’s original Motion to Change Venue. The State neglected, avoided, and completely failed to disprove the issue raised by Respondent, which is: he cannot receive a fair trial or jury in Montgomery County. In the Change of Venue Motion, Respondent factually supports his assertion of the T.R.C.P. Rule 257(a)(c} by offering evidence in the form of an exhibit (See Exhibits 1-3), which is documentation of a previous civilcommitment trial held in Montgomery County. In Re the Commitment of Robert Burns McCall, Reporter’s Record Volume 3, pages 85-90. This is the voir dire being conducted by the State prosecutors, and it is dated January 26, 2015. During the voir dire process (be itnoted), several venire persons had previously set on a jury during an SVP civil commitment trial in Montgomery County. Thereby giving rise to the credibility that a potentially biased opinion is/has been formulated in their “mind’s” prior to trial, as stated in Respondent’s original Motion to Change Venue. The following direct quotes are taken from the Reporter’s Record, pages 85-90 (See Exhibits t-3): venire person number 22 stated, ”yeah. I just sat on this type ofjury two years ago,” referring to an SVP trial. Then the State asked, ”ifa verdict was reached," and they answered, "yes.” Prosecution then asked, "are you able to put aside anything you learned about the case, put itout of your ’MIND,’ and decide the case just based on the facts you hear in this court?” They responded with a biased and prejudicial answer, ”I can do that, but memories come back.” The thought of "memories coming back,” Page 2 of 7 haunting the venire person elicits a prejudicial connotation in their mind. (Emphasis added). The biased statement concluded by venire person 22 substantiates the claims raised by Respondent in his original Motion to Change Venue stating, ”[ejmpanling an impartial jury to hear and rule on evidence presented at any civil commitment hearing, or any other judicial aspects involved in the civilcommitment process, isquestionable. The beyond a reasonable doubt standard is 'null and void,’ when a biased jury panel has possibly formulated an opinion ofthe case (in their minds) during voir dire, or at trial." See Respondent’s Change of Venue, page 2, paragraph 1. Seventeen-years of civilcommitment proceedings being adjudicated in Montgomery County has developed a tainted jury pool, and empaneling an impartial jury isminimal at best. The outcome of Respondent’s future civilcommitment proceedings and freedom are at stake! Changing Respondent’s venue is the only redress at correcting the scales ofjustice. Nevertheiess, venire person 21 also claimed to have set on a jury during an SVP civil commitment trial in Montgomery County, along with venire person 36, which commented they had set on a jury in Montgomery County in Judge Sieler’s courtroom. The facts ofthe case were, ”was the judge going to keep custody of a pedophile.” (Paraphrased). Although venire person 36 is questionable, if itwas an actual civil commitment trialthey sat in on, Respondent contends in his belief, they did therein set in on an SVP civil commitment trial in Montgomery County. That would total three venire persons who sat on a jury, at an SVP civil commitment trial at Mr. McCall's voir dire. 10. The facts contained in the court transcripts in Re the Commitment of Robert Burns McCall validate and assert the factual truth that Respondent believes he cannot receive a fair impartial trialor jury selection ifhis venue isnot changed from Montgomery County, Texas. 11. Therefore, Respondent hereby declares a prejudice so great exists against him in Montgomery County, where the pending [ongoing] cause of action exists, and thereby Page 3 of7 concludes the only hope of receiving a fair and impartial trial isto change the venue of the existing cause of action, i.e. his ongoing civil commitment docket and caseload. PROPER SUBJECT MATTER JURISDICTION ln objection to the State’s argument, that Respondent just “chose” a county to change the venue to, Respondent respectfully considered the proper selection of a county that would be pursuant "with" HSC 841.041(a) which would be the county of his last sexual conviction. The subject matterjurisdiction being in the county of his last sexual conviction would comply with proper subject matterjurisdiction, because Respondent did not ”choose" a random county to change the venue to, but considered the Legislative intent mandated by the newly revised Senate Bill 746 (SB 746), and HSC 841.041(a). The Legislative intent to have civilcommitment trials inthe county of the potential predator’s last county of sexual conviction, and NO longer exclusively in Montgomery County arose from constitutional considerations, among others, but Respondent asserts, "he believes it was the biased nature (of EXCLUSIVE venue and jurisdiction) that fueled the needed change. HSC 841.0511(a) gives rise to proper subject matterjurisdiction, not because Respondent arbitrarily chose the county of his last sexual conviction as a proper venue, but because it is pursuant ”with” jurisdiction as dictated inthe newly amended 58 746, and HSC 841,041la). According to State's contention, in their Opposition Motion, page 3, paragraph 2, Respondent just ”chose” where he would ”like" the venue to be. Contrary to their argument, Respondent asserts he cannot receive a fair and impartial trial or jury in Montgomery County, and this is the "SOLE” basis to request a Change of Venue. To better comply and stay within the parameters of HSC 841, Respondent "chose" the county of his last conviction, because it suited the proper subject matterjurisdiction and venue pursuant "with" 841.041(a). The T.R.C.P. clearly states that a venue can be changed ifgood cause exists for such an action. Respondent has proved beyond a reasonable doubt that a fair and impartial trial orjury selection in Montgomery County isquestionable. The Texas Constitution, article 3 § 45 states, Page 4 of 7 "the power to change venue in civiland criminal cases shall be vested in the courts, to be exercised in such a manner as shall be provided by law, and the Legislature will pass laws for that purpose." LEGISLATIVE INTENT In contention to the State’s argument, they repeatedly state, ”the Legislature intended this, or did not intend that." (Paraphrased, Emphasis Mine). However, they absolutely failed to disprove Respondent’s argument that he cannot receive a fairand impartial trial,or jury in Montgomery County. According to the Texas Constitution, article 3 § 45 itstates, ”The Legislature shall pass laws for the purpose," of giving courts the vested right to Change Venue in civiland criminal cases. It did not specify SVP cases are immune from venue changes, itsaid courts have the right to change venue, and did not specify for what particular reasons. Jurisdiction and venue are proper for Respondent to request his venue to be changed to the county of his last sexual conviction, and courts have that right to decide this, and the Legislature enacted laws for that purpose, and NOT TO THWART THEM. CONCLUSION Respondent reasserts, he cannot receive a fair and impartial trial, or jury in Montgomery County, pursuant to T.R.C.P. Rule 257(a)(c). Therefore, he requests a Change of Venue to the county of his last sexual conviction, pursuant ”with” HSC 841.041{a), which gives rise to subject matter jurisdiction. PRAYER WHEREFORE, PREMISES CONSIDERED, Respondent prays the Honorable Judge Patti McGinnis, of the 435th Judicial District in Montgomery County will consider this Respondent’s Memorandum Response to State’s Opposition Motion, and change Respondent’s venue. Moreover, that the Honorable Judge grants this included Motion for Continuance, pursuant to HSC 841.063, and T.R.C.P. Rule 251-252, and sets a hearing date allowing both parties of record to argue their case before the Honorable Judge on the Change of Venue Motion. Page 5 of? CERTIFICATE OF SERVICE I, m 614/4 [Wu/c C 3,7: [tn/r4, hereby declare a true and correct copy of this Respondent’s Memorandum Response has been mailed to all parties of record, pursuant to T.R.C.P. Rule 21(a), and to the District Clerk’s Office of Montgomery County, at PO. Box 2985, Conroe, Texas 77305. Mailed onthe /°l ,dayof fun a. 2017. Marl-:71 (“glob/pd [Uf‘fl Printed Name of Respondent \ 07A ‘- fljCC5-7/7 M5/7l—1l/1 Lufcq Texas Civil Commitment Center 2600 South Sunset Avenue Littlefield, Texas 79339 Page 7 of 7 UNSWORN DECLARATION My name is [rm/pm 53', q ,{0 (v/( A «rm , my date of birth ' “ 7 is ‘4/ {9‘ cl G ,and my address is at the Texas Civil Commitment Center, 2600 South Sunset Avenue, in the United States. Ideclare under penalty of perjury that the foregoing instrument, Respondent's Memorandum Response to State’s Opposition Motion/Motion for Continuance is true and correct. I Executed on /(’/ day of jL/x’l CL .2017. ma/7l’"/)t Cv7/4 Printed Name of Respondent {A V v a (/1 @36677/6/ 47’; 6/ {A l. exas lVllCommitment Center 2600 South Sunset Avenue Littlefield, Texas 79339 Attn: Barbara Adamick Montgomery County District Clerk PO. Box 2985 Conroe, Texas 77305-2985 Date: C“/C///7 mwfia (VJ—6’"? “(WW/q Texas Civil Commitment Center 2600 S. Sunset Ave. Littlefield, Texas 79339 Dear m/ v a5/2, The Hearing has been set for the following date: Signed on this , day of ,2017. District Clerk Court Coordinator