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RECEIVED AND FILED
:08 RECORD
At 1
O'CIOCR____,&M.
SEP 0 6 2017
CAUSE NO: 14-10-10874-CV
BARBARA GLADDEN ADAMICK
Distn' Cl k
M EXAS
By eputy
IN REzTHE COIVIMITMENTOF § INTHE DISTRICT COURT
§ MONTGOMERY COUNTY
JAMES DOUGLAS STEWART § 435T“ JUDICIAL DISTRICT
PREMATURE NOTICE 0F APPEAL
TO THE HONORABLE JUDGE OF SAID COURT:
Comes now, James Douglas Stewart (hereafter) Petitioner in the above styled and
numbered cause herein respectfully requests permission of the Court to file this Motion for
Premature Notice of Appeal, pursuant to Texas Rules of Civil Procedure (TRCP) Rule 27.1(a).
Petitioner avers the Court to respectfully construe his Pro Se pleadings liberally, pursuant with
TRCP Rule 7 and hold them to a less stringent caliber expected of attorneys. This request is for
Special Solicituoe. See Boag v. MacDouga/I, 454 U.S. 364 (1982).
Petitioner herein would respectfully show the Court the following, pursuant to TRCP Rule
25.1(d) Contents of Notice of Appeal:
1. Petitioner’s Premature appeal is from the 435*“ Judiciai District Court located in
Montgomery County, Texas. Cause Number 14-10-10874-CV.
2. On September 8, 2017, a Hearing by Submission will be conducted on Petitioner's
Motion to Change Venue, and this Premature Notice of Appeal is being filed in advance
SCANNED
for appeiiate purposes.
Petitioner requests special permission from this Court to appeal the order, contingent
upon the Judge’s ruling on September 8, 2017, be itfinal, or accelerated/interlocutory.
PAGElOFOH
4. Petitioner's substantive and procedural appellate jurisdiction, from the 435‘“ Judicial
District falls within the parameters of the Ninth Court of Appeals located in Beaumont,
Texas. See Texas Govt. code § 22.210, §22.220(a). Whereby, Petitioner invokes the
appellate jurisdiction of the Ninth Court of Appeals by and through this Premature
Notice of Appeal. Thereby, requesting permission to appeal in the Ninth Court of
Appeals. TRAP Rule 28.3(a).
5. Petitioner, James Douglas Stewart hereby requests permission to appeal from an
lnterlocutory Order ifthe denied order is considered interlocutory, pursuant to Texas
CivilPractice and Remedies Code § 51.014(d)-(f), and TRCP Rule 168. Petitioner declares
the order to be appealed involves a controlling question of law as to which there isa
substantial ground for difference of opinion, because he cannot receive a fair trial in
said county, and the trialcourt has ruled contrarily. Alternatively, ifthe denied order is
considered a Final Judgment, Petitioner herein requests permission to appeal the final
judgment pursuant to TRCP Rule 25 e 26.
6. Notwithstanding, ifthis appeal isbeing considered a final judgment it shall not be held
to rules governing a Restricted Appeal or an Accelerated Appeal, unless otherwise
directed by the Trial or Appellate Courts for those purposes.
7. Nevertheless, Petitioner will consider that this (possibly) denied order may be construed
as an lnterlocutory Order, and hereto offers the required information requested of an
Accelerated Appeal, pursuant to TRCP Rule 28.2(a)(b)(c):
a. Petitioner requests a copy of the docketing statement, pursuant to TRCP Rule
32.1, for appellate purposes.
b. Petitioner, James Douglas Stewart resides at the Texas Civil Commitment Center,
2600 South Sunset Avenue, Littlefield, Texas 79339. Special Prosecution Unit is
located at 1300 11‘“ Street, Suite 310, Huntsville, Texas 77340.
c. Petitioner’s Order, Granting or denying this Motion to Change Venue contains
language requesting ifthis judgment isfinal or interlocutory, and requesting
permission to appeal from either judgment. Therein, furnishing Petitioner with a
copy of the agreed order, and a statement of the agreement.
PAGEZOFO ll
d. lnclusory to the agreed statement, it therein shall be stated as to the issue
objected (ofthe possible denied order) ifthere isa controlling question of law or
a substantial difference 0f opinion.
REQUESTS OF TRIAL COURT
Petitioner further avers, to preserve proper appellate review, several requests require
fulfilling. Petitioner herein respectfully moves the Court to fulfillthe following requests:
'
1. Petitioner requests Findings of Fact and Conclusions Of Law, pursdant to TRCP Rule 26.1
stating with clarity why the order to Change Venue was denied. See Washington v.Fort
BendSchool District, 892 S.W.2d 156; Tex. App. LEXIS 3075 (1994), also Enviro
Protection, Inc, v. The National Bank ofAndrews, 989 S.W.2d 454; Tex. App. LEXIS 2426
(1999).
2. Petitioner requests a copy of the appellate record, in connection with the denied order
of the Change Venue, pursuant to TRCP Rule 34. See Pul/iam v. City ofAustin, 2017 Tex.
App. LEXIS 3325, also Morrow v. Oklahoma Dept. of Corrections, 508 Fed. Appx. 794;
2013 US App LEXIS 16652013 U.S. App. LEXIS 1665.
3. Petitioner requests a copy of the Docketing Statement, pursuant to TRCP Rule 32.1, in
connection to the denied order to Change Venue. See Nolan v. United States Dept.
Justice, 973 F.2d 843 (1992).
4. Petitioner requests permission to amend this appeal accordingly, as directed by the Trial
Court or the Appellate Court.
5. Petitioner has attached a recent Affidavit of lndigence validating his inability to pay
costs associated with any requests contained in this Premature Notice of Appeal.
PAGE 3 OFDlI
OBJECTIONSO EVIDENCEOJUDICIAL NOTICEOBILLS OF EXCEPTIONS
According to TRAP Rule 33. Preservation of Appellate Complaints itstates:
Rule 33.1 Preservation; How Shown:
(a) In General. As a prerequisite to presenting a complaint for appellate review, the record
must show that;
(1) the complaint was made to the trial court by a timely request, objection, or motion that:
(A) stated the grounds for the ruling that the complaining party sought from the trial court
with sufficient specificity to make the trialcourt aware of the complaint, unless the specific
grounds were apparent from the context; and...
(2) the trialcourt:
(A) ruled on the request, objection, or motion, either expressly or implicitly; or...
(b) Ruling by Operation of Law. In a civil case, the overruling by operation of law of a motion
for new trial or a motion to modify the judgment preserves for appellate review a complaint
properly made in the motion, unless taking evidence was necessary to properly present the
complaint in thetrial court.
OQECTIQNfi
> Petitioner asserts his objections to the denied order to Change Venue for several
reasons such as:
1. The Trial Court is abused its discretion by arbitrarily denying not only Petitioner's
Motion to Change Venue, but over twenty (20) other Petitioners who have filed for a
Change of Venue in the 435‘“Judicia! District Court of Montgomery County premised on
TRCP 257 (a)(c),that they cannot receive a fair or impartial trial insaid county.
Wherefore, PETITIONER OBJECTS.
2. The Special Prosecution Unit argues that jurisdiction and venue are proper in said
county, and completely neglect to address Petitioner’s claims raised in his original
Motion to Change Venue, wherein Petitioner contends, he cannot receive a fair and
impartial trial in said county, pursuant to TRCP Rule 257(a) (c). Wherefore, PETITIONER
OBJECTS.
PAGE4OFIH
3. Petitioner included as an exhibit, in his Motion to Change Venue/Notice of Appeal, trial
transcripts of a previous sexually violent predator [SVP) trial held in said county.
Wherein, potential venierpersons stated they had previously participated as a jury
member in an SVP trial.Pursuant to Texas Rules of Evidence (TRE) Rule 1005: Copies of
Public Records to Prove Content, such as the Reporter’s Record are considered
evidence. Furthermore, TRCP Rule 201(c)(2)(d)(e) states, Petitioner can request and
direct the trial court to take Judicial Notice of the fact that the Reporter’s
Record(introduced as an exhibit) is to be considered as evidence; giving credence to the
fact Petitioner cannot receive a fairand impartial trial, pursuant to TRCP Rule 257(c).
Controversially, the trial Court denied the admission of the exhibit entitled ”Previous
Trial Transcripts" as evidence, wherefore PETITIONER OBJECTS.
4. Petitioner's claim isvalid that he cannot receive a fair and impartial trial,therefore he
generally objects to the Court’s decision to deny the order to Change Venue. Whereby,
the preponderance proving otherwise ison the State to rebut Petitioner's claims.
Wherefore, PETI‘I’IONER OBJECTS to the State’s general denial to change the venue of
his ongoing civil commitment for two reasons: 1.) because future proceedings are in
jeopardy of receiving a biased fact finder/judgment, and 2.) his freedom is in jeopardy
by perpetual treatment, and indefinite confinement.
5. Petitioner requests the Trial Court to assert ifthe ruling isexpress or implicit.
fllpgNCE
Petitioner asserts the admission of evidence isin accordance with TRE Rule 102, which states:
)‘v
These rules should be construed so as to administer every proceeding fairly, eliminate
unjustifiable expense and delay, and promote the development of evidence law, to the
end of ascertaining the truth and securing a just determination.
Whereby, Petitioner included with his original Motion to Change Venue, transcripts
(Reporter’s Record) from a previous sexually violent predator trial, wherein the trial court failed
to admit them as evidence pursuant with TRE Rule 103(3). A substantial right of the Petitioner
was affected by this error; therefore, Petitioner ispreserving his appeIIate claim of error.
Therefore, he formally objects to the Trial Court's ruling, and requests the Court to direct that
PAGESOFO ll
an offer of proof be made in question-and-answer form, pursuant to Rule 103(a)(1)(A)(B)(2)(b)(c).
Petitioner’s inability to attend the "Hearing by Submission” on September 8, 2017, preciudes
him from the right to object or introduce evidence accordingly. Herein, Plaintiff issubmitting his
objections, and complaints via the United States Postal Service.
Petitioner realleges he cannot receive a fair and impartial trial pursuant to TRCP Rule
257(a)(c). Moreover, purSuant to TRE Rule 201(a)(2)(c)(2)(e) Petitioner requests the Court to
take judicial notice of this fact: that evidence submitted inthe form of an exhibit, entitled
"Previous Trial Transcripts” isformidable, reliable, and supports his contention stated in TRCP
Rule 257(a)(c). See Commercial Union Insurance Company v. Pittsburgh Corning Corporation, et
a/., 553 F. Supp. 425; 1981 US Dist. LEXIS 10130 (1981).
> Petitioner requests the Trial Court to take judicial notice of these facts:
1. Multiple Residents in Texas Civil Commitment have filed for a Change of Venue from
Montgomery County, and have ended up in the Ninth Court of Appeals. When the Clerk’s
Record was sent to them, it DID NOT contain the previous SVP Trial Transcripts.
2. The appellate record sent to Plaintiff by the trial court, did not contain the trial
transcripts from the previous SVP trialthat took place in Montgomery County. Plaintiff
included them in the Notice of Appeal sent to the trialcourt as an exhibit, documenting the
fact a bias exists in that county.
3. The Trial Court has arbitrarily denied allmotions; concerning SVP’s who have filed for
numerous contentions, such as: Motion to Change Venue, Motion to Appoint an Expert
Witness, Motion for Placement in Less Restrictive Housing, and others.
4. Petitioner believes there is a bias nature to the Trial Court, and therefore further
contends he cannot receive a fair trialat any proceedings due to this fact, such as biennial
reviews, unauthorized petitions for release, movement between programming tiers,
movement to less restrictive housing, and others.
PAGE 6 OF Dll
BILLS 0F EPTIONS
Petitioner contends, unless otherwise directed by the Trial Court, a Formal Billof
Exceptions will not be submitted. Petitioner has pleaded the facts supporting his objections,
and has asked the Trial Court to take judicial notice of those facts. See Zoric er. 01.,v. Island
Taping Company, 2004 U.S. Dist. LEXIS 12251.
Notwithstanding, to complain on appeal about a matter that would not otherwise
appear in the record, a party must file aformal billof exception, the objection to the court's
ruling or action, and the ruling complained of, must be stated with sufficient specificity to make
the trialc0urt aware of the complaint. Petitioner contends, the appellate record contains the
sufficient evidence needed to explain the objections raised to initiate a Billof Exceptions.
Furthermore, presenting concurrently with the appellate record, is the present
Premature Notice of Appeal, claiming that the Previous Trial Transcripts (Reporter’s Record)
from the SVP trial are sufficient evidence to prove he cannot receive a fair and impartial trial.
Whereby, fulfilling the threshold requirement that the matters raised in this Premature Appeal
DO NOT appear inthe record and are therefore stated with "specificity to make the trial court
aware ofthe complaint.” See TRAP Rule 33.2.
Ilf
However, a formal bill of exception conflicts with the reporter's record, the bill
controls. Herein, Petitioner contends, the only possible means the reporter’s record would
conflict with the billof exception is ifthe evidence submitted was not admitted.
In Calvin v.State of Texas, 2016 Tex. App. LEXIS 13404 (not designated for publication) it
states the following:
”Moreover, even ifshe had met her burden...an appellant must
make an offer of proof or a billof exceptions demonstrating what
the excluded evidence and testimony would have been. Tex. R. Evid. 103
(a)(2); Mays v.State, 285 S.W.3d 884, 889 (Tex. Crim. App. 2009). One
of the primary purposes of an offer of proof is to enable an appellate
court to determine whether the exclusion was harmful. Mays, 285 SW.
3d at 890.”
PAGE7OF9H
Petitioner contends, the trial court will exclude the trial transcripts in the appellate or
clerk’s record that will be sent to him, and further contends itwill be left out of the documents
sent to the appellate court. This is the prima facie evidence Petitioner construes to validate his
claim of TRCP 257(a)(c) "that he cannot receive a fair and impartial trial inMontgomery
County.” (See Exhibit #1 Trial Transcripts).
CONCLUSION
Premature Notices of Appeal are used as a vehicle to properly ensure Petitioner has
covered allissues, and made timely objections to the Trial Court’s rulings. A major hindrance for
-the Petitioner is-due‘to the fact he cannot be present during the Hearing by Submission set for
September 8, 2017. Moreover, Premature Appeals are used to preserve proper appellate
review to timely file a complaint of errors accordingly. See Rowe v. Watkins, No. 08-09-00001-
cv., 2009 Tex. Ami. LEXIS 6703
Nevertheless, ,
“when reviewing a brief, whether filed by c0unsel or by pro se parties,
we are required to construe itreasonably, yet liberally, so that the right to appellate review is
not lost by waiver.” See In The Interest ofM.D.G. a Child, 2017 Tex. App. LEXIS 781, citing Perry
v. Cohen, 272 S.W. 3d 585, 587 (Tex. 2008).
PRAYER
WHEREFORE PREMISES CONSIDERED, Petitioner prays the Trial Court will utilize this
Premature Appeal as a means to object to the findings of fact and conclusions of law made by
this Court ”prior” to those rulings. Furthermore, to allow Petitioner to file this Premature
Appeal as a means to timely file hisNotice of Appeal due to his present circumstances oftotal
confinement, and cannot be present during the hearing.
RESPECTFULLY SUBMITTED,
Q‘Wgw MES DOUGLAS STEWART 3305168201
PRO SE
2600 South Sunset Avenue
Littlefield, Texas 79339
PAGE 8 0F mu
AFFIDAVIT 0F INDIGENCY AND UNSWORN DECLARATION
Now respectfully comes k a (“253 000G103 Qlawad” ,
Petitioner acting Pro Se,
pursuant to Texas Rules of Civil Procedure?do declare Iam indigent being unable to pay the
court costs in this action, and requests leave of Court to proceed informa pauperis in this
accompanying civilaction. Therefore, Petitioner respectfully shows the Court:
1. |am presently civiilycommitted, in total confinement, at the Texas Civil
Commitment Center, where I’m not permitted to handle money.
Ihave no source ofemployment, nor government entitlement income.
.
“I am not married/l am married,“howeverfl-have-no-spousal‘income-availablefk- ‘ - --'
wéww
tcurrently haves [l 23 credited to my resident trust fund.
lneither have nor own an interest in realty, stocks, bonds, or bank accounts.
6. [have no other assets.
f:
7.
8.
9.
[have
I
My
have total debts of
monthly eXpenses are $
dependents.
approximately $
£3 2
fl ‘
.
10. l have no ability whatsoever to obtain a loan for court costs.
ll. | have no attorney representing me for a fee or free.
My inability to pat costs associated with this civilaction are due to my present
circumstances of civilcommitment without being employed.
I
I ISA mg; E20529 [0.531% a-gCfi, Petitioner acting Pro Se, being civillycommitted at
the Texas Civil Commitment Center, verify and do declare under penalty of perjury the
following document(s): Pmnyfivk NOE? o 9 mp 6Q, , and the
foregoing instrument lnabilig to Pay Costs, are true and correct to the best of my
knowledge.
Signed on this JG day of Ru 050:3: ,2017.
REéfifiNTS SIG URE
Crop?
CERTIFICATE OF RESIDENT TRUST ACCOUNT
I,the undersigned officer 0f the Texas Civil Commitment Center where,
CYRWm: 5+evo (1H ,Rcsidem 1D No. 05/ @302 0/ ,
Name)
(Resident (Residcn: Id Number)
currently resides as a Resident in civil confinement, do hereby cem'fy that:
(l) On this day the Resident has in his account the sum of$ /; 35 .
(2) During the past six months, the Resident’s:
Average monthly balance was $ q .1; .
Average monthly deposits 10 the Resident’s account were $ 1
3 3H .
Attached is a certified copy of the Resident’s trust account statement (or institutional equivalent)
showing transactions for the past six months.
Signed this Ofi—h day offlw 5M ,20 fl
flfi S(Léflhkz
Authorized Officer
(Business Manager or designee)
Institution of Residence
Authorization
I, the undersigned Resident, authorize the institution where I am residing to withdraw and
forward to the court any initial partial filing fee 0r appeal fee and any subsequent installments
'
ordered by a Court under the informapaupcris provisions of 28 U.S.C. § 1915.
hum, 5mm
SEQature of Resident/Plaintifl/Appellant
Resident ID No. Oé/ §8QO I
:===_._._____.__._.=.._—_=====_
Correct Care Texas Civil Commitment Center
—-__=___====——=—=
Resident Account Sumhary
Tuesday, August 01, 2017 @11:37
===============================================================‘_‘u====-_====
For CIN: 05168201 STEWART, JAMES DOUGLAS
Date Transaction Description Amount
—_______.—.__.._—____—._——_____...—-_-______-__—____.~_——————n______-—-__._—___._h——————_ ——-——————.—.——u———h————
07/24/2017-PHONE PURCH.PHONE TIME PURCHASE -0.89 . 07/24/2017
n.
07/18/2017 EPR OID:100007066—ComisaryPurc -8.06 07/18/2017
07/17/2017 DEPOSIT MO WESTERN UNION 10.00 0 07/17/2017
06/19/2017 PHONE PURCH.PHONE TIME PURCHASE -1.12 oo. U 06/19/2017
06/13/2017 ERR OID:100006739—ComisaryPur( ~8.81 06/13/2017
06/09/2017 DEPOSIT MO WESTERN UNION 10.00 ‘_.
I—‘QOOOHOQNDJ
u Io. 06/09/2017
06/09/2017 PHONE PURCH PHONE TIME PURCHASE ‘
-0.22 o 06/09/2017
‘
05/23/2017 EPR OID:100006524—ComisaryPutt -7.59 05/23/2017
'05/22/2017 WDRAWAL CHE-TCCO MONTHLY FEES
'
" -3.30 05/22/2017
F 000 'I'
05/19/2017 DEPOSIT MO WESTERN UNION . 10.00 H 05/19/2017
05/10/2017 PHONE PURCH.PHONE TIME PURCHASE? -0.45 05/10/2017
04/25/2017 BPR OID:100006164-ComisaryPurc —4.87 04/25/2017
04/18/2017 BPR OID:100006063-Comisarypurl —3.07 0.0 04/18/2017
04/17/2017 PHONE PURCBTPHONE TIME PURCHASE -0.45 04/17/2017
04/11/2017 DEPOSIT MO WESTERN UNION 10.00 |_I
04/11/2017
95:$2953F>953F)o<3c3c>6<3c>cE$c>o<>c>o<3c>o<3c>o
COOOOOOOOOOOOOOOC’OOOOOOOOOOOO
03/23/2017 PHONE PURCH PHONE TIME PURCHASE -0.22 03/23/2017
a...o...-.
03/21/2017 PHONE PURCH PHONE TIME PURCHASE -l.56 o...
03/21/2017
03/21/2017 EPR OID:100005820-ComisaryPurt ~8.54 mQU'IODOl-‘OOOQO‘HH
03/21/2017
03/16/2017 PHONE PURCH.PHONE TIME PURCHASE -0.22 H5.-
‘ 03/16/2017
03/14/2017 DEPOSIT M0 WESTERN UNION 10.00 03/14/2017
03/14/2017 EPR OID:100005789-ComisaryFur( -4.60 ' 03/14/2017
03/11/2017 PHONE PURCH.PHONE TIME PURCHASE -2.68 03/11/2017
03/11/2017 PHONE PURCH.PHONE TIME PURCHASE -0.89 1 03/11/2017
02/28/2017 EPR OID:100005639-ComisaryPurx ~33.72 .4
O 02/28/2017
02/21/2017 EPR OID:100005557*ComisaryPurt -0.60 . 02/21/2017
02/20/2017 PHONE PURCH PHONE TIME PURCHASE -1.79 .
Aha éWN 000 02/20/2017
02/17/2017 WDRAWAL CHE'TCCO MONTHLY FEES -16.50 . 02/17/2017
02/14/2017 DEPOSIT MO WESTERN UNION 50.00 HON
r—In—I
02/14/2017
02/14/2017 DEPOSIT MO FIDELITY EXPRESS 10.00
I.
02/14/2017
___.———-.._______________-____...——-._____——.—__________...________.__———_-_—————-..-________..____________—_..__
F__
REPORTER'SRECORD A P PE A R A N CE S
vOLuHE3 0F5 VOLUMES
CASEN0. 09-15~00094-cv
IRIALcouRT CAUSEHo. 14-07-0729‘-cv
HR. BRIT?LIHDSEY
SBOT NO.24039669
IN RE. : IN THE DlsrklcrCOURT0F HS. KIHBERLYCLARK
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1300 11thStreet.Su1tc 310
ROBERTBURNS HCEALL é ‘JSIHJUDICIAL DISTRICT Nuntxville.Texas 77340
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Preview
RECEIVED AND FILED :08 RECORD At 1 O'CIOCR____,&M. SEP 0 6 2017 CAUSE NO: 14-10-10874-CV BARBARA GLADDEN ADAMICK Distn' Cl k M EXAS By eputy IN REzTHE COIVIMITMENTOF § INTHE DISTRICT COURT § MONTGOMERY COUNTY JAMES DOUGLAS STEWART § 435T“ JUDICIAL DISTRICT PREMATURE NOTICE 0F APPEAL TO THE HONORABLE JUDGE OF SAID COURT: Comes now, James Douglas Stewart (hereafter) Petitioner in the above styled and numbered cause herein respectfully requests permission of the Court to file this Motion for Premature Notice of Appeal, pursuant to Texas Rules of Civil Procedure (TRCP) Rule 27.1(a). Petitioner avers the Court to respectfully construe his Pro Se pleadings liberally, pursuant with TRCP Rule 7 and hold them to a less stringent caliber expected of attorneys. This request is for Special Solicituoe. See Boag v. MacDouga/I, 454 U.S. 364 (1982). Petitioner herein would respectfully show the Court the following, pursuant to TRCP Rule 25.1(d) Contents of Notice of Appeal: 1. Petitioner’s Premature appeal is from the 435*“ Judiciai District Court located in Montgomery County, Texas. Cause Number 14-10-10874-CV. 2. On September 8, 2017, a Hearing by Submission will be conducted on Petitioner's Motion to Change Venue, and this Premature Notice of Appeal is being filed in advance SCANNED for appeiiate purposes. Petitioner requests special permission from this Court to appeal the order, contingent upon the Judge’s ruling on September 8, 2017, be itfinal, or accelerated/interlocutory. PAGElOFOH 4. Petitioner's substantive and procedural appellate jurisdiction, from the 435‘“ Judicial District falls within the parameters of the Ninth Court of Appeals located in Beaumont, Texas. See Texas Govt. code § 22.210, §22.220(a). Whereby, Petitioner invokes the appellate jurisdiction of the Ninth Court of Appeals by and through this Premature Notice of Appeal. Thereby, requesting permission to appeal in the Ninth Court of Appeals. TRAP Rule 28.3(a). 5. Petitioner, James Douglas Stewart hereby requests permission to appeal from an lnterlocutory Order ifthe denied order is considered interlocutory, pursuant to Texas CivilPractice and Remedies Code § 51.014(d)-(f), and TRCP Rule 168. Petitioner declares the order to be appealed involves a controlling question of law as to which there isa substantial ground for difference of opinion, because he cannot receive a fair trial in said county, and the trialcourt has ruled contrarily. Alternatively, ifthe denied order is considered a Final Judgment, Petitioner herein requests permission to appeal the final judgment pursuant to TRCP Rule 25 e 26. 6. Notwithstanding, ifthis appeal isbeing considered a final judgment it shall not be held to rules governing a Restricted Appeal or an Accelerated Appeal, unless otherwise directed by the Trial or Appellate Courts for those purposes. 7. Nevertheless, Petitioner will consider that this (possibly) denied order may be construed as an lnterlocutory Order, and hereto offers the required information requested of an Accelerated Appeal, pursuant to TRCP Rule 28.2(a)(b)(c): a. Petitioner requests a copy of the docketing statement, pursuant to TRCP Rule 32.1, for appellate purposes. b. Petitioner, James Douglas Stewart resides at the Texas Civil Commitment Center, 2600 South Sunset Avenue, Littlefield, Texas 79339. Special Prosecution Unit is located at 1300 11‘“ Street, Suite 310, Huntsville, Texas 77340. c. Petitioner’s Order, Granting or denying this Motion to Change Venue contains language requesting ifthis judgment isfinal or interlocutory, and requesting permission to appeal from either judgment. Therein, furnishing Petitioner with a copy of the agreed order, and a statement of the agreement. PAGEZOFO ll d. lnclusory to the agreed statement, it therein shall be stated as to the issue objected (ofthe possible denied order) ifthere isa controlling question of law or a substantial difference 0f opinion. REQUESTS OF TRIAL COURT Petitioner further avers, to preserve proper appellate review, several requests require fulfilling. Petitioner herein respectfully moves the Court to fulfillthe following requests: ' 1. Petitioner requests Findings of Fact and Conclusions Of Law, pursdant to TRCP Rule 26.1 stating with clarity why the order to Change Venue was denied. See Washington v.Fort BendSchool District, 892 S.W.2d 156; Tex. App. LEXIS 3075 (1994), also Enviro Protection, Inc, v. The National Bank ofAndrews, 989 S.W.2d 454; Tex. App. LEXIS 2426 (1999). 2. Petitioner requests a copy of the appellate record, in connection with the denied order of the Change Venue, pursuant to TRCP Rule 34. See Pul/iam v. City ofAustin, 2017 Tex. App. LEXIS 3325, also Morrow v. Oklahoma Dept. of Corrections, 508 Fed. Appx. 794; 2013 US App LEXIS 16652013 U.S. App. LEXIS 1665. 3. Petitioner requests a copy of the Docketing Statement, pursuant to TRCP Rule 32.1, in connection to the denied order to Change Venue. See Nolan v. United States Dept. Justice, 973 F.2d 843 (1992). 4. Petitioner requests permission to amend this appeal accordingly, as directed by the Trial Court or the Appellate Court. 5. Petitioner has attached a recent Affidavit of lndigence validating his inability to pay costs associated with any requests contained in this Premature Notice of Appeal. PAGE 3 OFDlI OBJECTIONSO EVIDENCEOJUDICIAL NOTICEOBILLS OF EXCEPTIONS According to TRAP Rule 33. Preservation of Appellate Complaints itstates: Rule 33.1 Preservation; How Shown: (a) In General. As a prerequisite to presenting a complaint for appellate review, the record must show that; (1) the complaint was made to the trial court by a timely request, objection, or motion that: (A) stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trialcourt aware of the complaint, unless the specific grounds were apparent from the context; and... (2) the trialcourt: (A) ruled on the request, objection, or motion, either expressly or implicitly; or... (b) Ruling by Operation of Law. In a civil case, the overruling by operation of law of a motion for new trial or a motion to modify the judgment preserves for appellate review a complaint properly made in the motion, unless taking evidence was necessary to properly present the complaint in thetrial court. OQECTIQNfi > Petitioner asserts his objections to the denied order to Change Venue for several reasons such as: 1. The Trial Court is abused its discretion by arbitrarily denying not only Petitioner's Motion to Change Venue, but over twenty (20) other Petitioners who have filed for a Change of Venue in the 435‘“Judicia! District Court of Montgomery County premised on TRCP 257 (a)(c),that they cannot receive a fair or impartial trial insaid county. Wherefore, PETITIONER OBJECTS. 2. The Special Prosecution Unit argues that jurisdiction and venue are proper in said county, and completely neglect to address Petitioner’s claims raised in his original Motion to Change Venue, wherein Petitioner contends, he cannot receive a fair and impartial trial in said county, pursuant to TRCP Rule 257(a) (c). Wherefore, PETITIONER OBJECTS. PAGE4OFIH 3. Petitioner included as an exhibit, in his Motion to Change Venue/Notice of Appeal, trial transcripts of a previous sexually violent predator [SVP) trial held in said county. Wherein, potential venierpersons stated they had previously participated as a jury member in an SVP trial.Pursuant to Texas Rules of Evidence (TRE) Rule 1005: Copies of Public Records to Prove Content, such as the Reporter’s Record are considered evidence. Furthermore, TRCP Rule 201(c)(2)(d)(e) states, Petitioner can request and direct the trial court to take Judicial Notice of the fact that the Reporter’s Record(introduced as an exhibit) is to be considered as evidence; giving credence to the fact Petitioner cannot receive a fairand impartial trial, pursuant to TRCP Rule 257(c). Controversially, the trial Court denied the admission of the exhibit entitled ”Previous Trial Transcripts" as evidence, wherefore PETITIONER OBJECTS. 4. Petitioner's claim isvalid that he cannot receive a fair and impartial trial,therefore he generally objects to the Court’s decision to deny the order to Change Venue. Whereby, the preponderance proving otherwise ison the State to rebut Petitioner's claims. Wherefore, PETI‘I’IONER OBJECTS to the State’s general denial to change the venue of his ongoing civil commitment for two reasons: 1.) because future proceedings are in jeopardy of receiving a biased fact finder/judgment, and 2.) his freedom is in jeopardy by perpetual treatment, and indefinite confinement. 5. Petitioner requests the Trial Court to assert ifthe ruling isexpress or implicit. fllpgNCE Petitioner asserts the admission of evidence isin accordance with TRE Rule 102, which states: )‘v These rules should be construed so as to administer every proceeding fairly, eliminate unjustifiable expense and delay, and promote the development of evidence law, to the end of ascertaining the truth and securing a just determination. Whereby, Petitioner included with his original Motion to Change Venue, transcripts (Reporter’s Record) from a previous sexually violent predator trial, wherein the trial court failed to admit them as evidence pursuant with TRE Rule 103(3). A substantial right of the Petitioner was affected by this error; therefore, Petitioner ispreserving his appeIIate claim of error. Therefore, he formally objects to the Trial Court's ruling, and requests the Court to direct that PAGESOFO ll an offer of proof be made in question-and-answer form, pursuant to Rule 103(a)(1)(A)(B)(2)(b)(c). Petitioner’s inability to attend the "Hearing by Submission” on September 8, 2017, preciudes him from the right to object or introduce evidence accordingly. Herein, Plaintiff issubmitting his objections, and complaints via the United States Postal Service. Petitioner realleges he cannot receive a fair and impartial trial pursuant to TRCP Rule 257(a)(c). Moreover, purSuant to TRE Rule 201(a)(2)(c)(2)(e) Petitioner requests the Court to take judicial notice of this fact: that evidence submitted inthe form of an exhibit, entitled "Previous Trial Transcripts” isformidable, reliable, and supports his contention stated in TRCP Rule 257(a)(c). See Commercial Union Insurance Company v. Pittsburgh Corning Corporation, et a/., 553 F. Supp. 425; 1981 US Dist. LEXIS 10130 (1981). > Petitioner requests the Trial Court to take judicial notice of these facts: 1. Multiple Residents in Texas Civil Commitment have filed for a Change of Venue from Montgomery County, and have ended up in the Ninth Court of Appeals. When the Clerk’s Record was sent to them, it DID NOT contain the previous SVP Trial Transcripts. 2. The appellate record sent to Plaintiff by the trial court, did not contain the trial transcripts from the previous SVP trialthat took place in Montgomery County. Plaintiff included them in the Notice of Appeal sent to the trialcourt as an exhibit, documenting the fact a bias exists in that county. 3. The Trial Court has arbitrarily denied allmotions; concerning SVP’s who have filed for numerous contentions, such as: Motion to Change Venue, Motion to Appoint an Expert Witness, Motion for Placement in Less Restrictive Housing, and others. 4. Petitioner believes there is a bias nature to the Trial Court, and therefore further contends he cannot receive a fair trialat any proceedings due to this fact, such as biennial reviews, unauthorized petitions for release, movement between programming tiers, movement to less restrictive housing, and others. PAGE 6 OF Dll BILLS 0F EPTIONS Petitioner contends, unless otherwise directed by the Trial Court, a Formal Billof Exceptions will not be submitted. Petitioner has pleaded the facts supporting his objections, and has asked the Trial Court to take judicial notice of those facts. See Zoric er. 01.,v. Island Taping Company, 2004 U.S. Dist. LEXIS 12251. Notwithstanding, to complain on appeal about a matter that would not otherwise appear in the record, a party must file aformal billof exception, the objection to the court's ruling or action, and the ruling complained of, must be stated with sufficient specificity to make the trialc0urt aware of the complaint. Petitioner contends, the appellate record contains the sufficient evidence needed to explain the objections raised to initiate a Billof Exceptions. Furthermore, presenting concurrently with the appellate record, is the present Premature Notice of Appeal, claiming that the Previous Trial Transcripts (Reporter’s Record) from the SVP trial are sufficient evidence to prove he cannot receive a fair and impartial trial. Whereby, fulfilling the threshold requirement that the matters raised in this Premature Appeal DO NOT appear inthe record and are therefore stated with "specificity to make the trial court aware ofthe complaint.” See TRAP Rule 33.2. Ilf However, a formal bill of exception conflicts with the reporter's record, the bill controls. Herein, Petitioner contends, the only possible means the reporter’s record would conflict with the billof exception is ifthe evidence submitted was not admitted. In Calvin v.State of Texas, 2016 Tex. App. LEXIS 13404 (not designated for publication) it states the following: ”Moreover, even ifshe had met her burden...an appellant must make an offer of proof or a billof exceptions demonstrating what the excluded evidence and testimony would have been. Tex. R. Evid. 103 (a)(2); Mays v.State, 285 S.W.3d 884, 889 (Tex. Crim. App. 2009). One of the primary purposes of an offer of proof is to enable an appellate court to determine whether the exclusion was harmful. Mays, 285 SW. 3d at 890.” PAGE7OF9H Petitioner contends, the trial court will exclude the trial transcripts in the appellate or clerk’s record that will be sent to him, and further contends itwill be left out of the documents sent to the appellate court. This is the prima facie evidence Petitioner construes to validate his claim of TRCP 257(a)(c) "that he cannot receive a fair and impartial trial inMontgomery County.” (See Exhibit #1 Trial Transcripts). CONCLUSION Premature Notices of Appeal are used as a vehicle to properly ensure Petitioner has covered allissues, and made timely objections to the Trial Court’s rulings. A major hindrance for -the Petitioner is-due‘to the fact he cannot be present during the Hearing by Submission set for September 8, 2017. Moreover, Premature Appeals are used to preserve proper appellate review to timely file a complaint of errors accordingly. See Rowe v. Watkins, No. 08-09-00001- cv., 2009 Tex. Ami. LEXIS 6703 Nevertheless, , “when reviewing a brief, whether filed by c0unsel or by pro se parties, we are required to construe itreasonably, yet liberally, so that the right to appellate review is not lost by waiver.” See In The Interest ofM.D.G. a Child, 2017 Tex. App. LEXIS 781, citing Perry v. Cohen, 272 S.W. 3d 585, 587 (Tex. 2008). PRAYER WHEREFORE PREMISES CONSIDERED, Petitioner prays the Trial Court will utilize this Premature Appeal as a means to object to the findings of fact and conclusions of law made by this Court ”prior” to those rulings. Furthermore, to allow Petitioner to file this Premature Appeal as a means to timely file hisNotice of Appeal due to his present circumstances oftotal confinement, and cannot be present during the hearing. RESPECTFULLY SUBMITTED, Q‘Wgw MES DOUGLAS STEWART 3305168201 PRO SE 2600 South Sunset Avenue Littlefield, Texas 79339 PAGE 8 0F mu AFFIDAVIT 0F INDIGENCY AND UNSWORN DECLARATION Now respectfully comes k a (“253 000G103 Qlawad” , Petitioner acting Pro Se, pursuant to Texas Rules of Civil Procedure?do declare Iam indigent being unable to pay the court costs in this action, and requests leave of Court to proceed informa pauperis in this accompanying civilaction. Therefore, Petitioner respectfully shows the Court: 1. |am presently civiilycommitted, in total confinement, at the Texas Civil Commitment Center, where I’m not permitted to handle money. Ihave no source ofemployment, nor government entitlement income. . “I am not married/l am married,“howeverfl-have-no-spousal‘income-availablefk- ‘ - --' wéww tcurrently haves [l 23 credited to my resident trust fund. lneither have nor own an interest in realty, stocks, bonds, or bank accounts. 6. [have no other assets. f: 7. 8. 9. [have I My have total debts of monthly eXpenses are $ dependents. approximately $ £3 2 fl ‘ . 10. l have no ability whatsoever to obtain a loan for court costs. ll. | have no attorney representing me for a fee or free. My inability to pat costs associated with this civilaction are due to my present circumstances of civilcommitment without being employed. I I ISA mg; E20529 [0.531% a-gCfi, Petitioner acting Pro Se, being civillycommitted at the Texas Civil Commitment Center, verify and do declare under penalty of perjury the following document(s): Pmnyfivk NOE? o 9 mp 6Q, , and the foregoing instrument lnabilig to Pay Costs, are true and correct to the best of my knowledge. Signed on this JG day of Ru 050:3: ,2017. REéfifiNTS SIG URE Crop? CERTIFICATE OF RESIDENT TRUST ACCOUNT I,the undersigned officer 0f the Texas Civil Commitment Center where, CYRWm: 5+evo (1H ,Rcsidem 1D No. 05/ @302 0/ , Name) (Resident (Residcn: Id Number) currently resides as a Resident in civil confinement, do hereby cem'fy that: (l) On this day the Resident has in his account the sum of$ /; 35 . (2) During the past six months, the Resident’s: Average monthly balance was $ q .1; . Average monthly deposits 10 the Resident’s account were $ 1 3 3H . Attached is a certified copy of the Resident’s trust account statement (or institutional equivalent) showing transactions for the past six months. Signed this Ofi—h day offlw 5M ,20 fl flfi S(Léflhkz Authorized Officer (Business Manager or designee) Institution of Residence Authorization I, the undersigned Resident, authorize the institution where I am residing to withdraw and forward to the court any initial partial filing fee 0r appeal fee and any subsequent installments ' ordered by a Court under the informapaupcris provisions of 28 U.S.C. § 1915. hum, 5mm SEQature of Resident/Plaintifl/Appellant Resident ID No. Oé/ §8QO I :===_._._____.__._.=.._—_=====_ Correct Care Texas Civil Commitment Center —-__=___====——=—= Resident Account Sumhary Tuesday, August 01, 2017 @11:37 ===============================================================‘_‘u====-_==== For CIN: 05168201 STEWART, JAMES DOUGLAS Date Transaction Description Amount —_______.—.__.._—____—._——_____...—-_-______-__—____.~_——————n______-—-__._—___._h——————_ ——-——————.—.——u———h———— 07/24/2017-PHONE PURCH.PHONE TIME PURCHASE -0.89 . 07/24/2017 n. 07/18/2017 EPR OID:100007066—ComisaryPurc -8.06 07/18/2017 07/17/2017 DEPOSIT MO WESTERN UNION 10.00 0 07/17/2017 06/19/2017 PHONE PURCH.PHONE TIME PURCHASE -1.12 oo. U 06/19/2017 06/13/2017 ERR OID:100006739—ComisaryPur( ~8.81 06/13/2017 06/09/2017 DEPOSIT MO WESTERN UNION 10.00 ‘_. I—‘QOOOHOQNDJ u Io. 06/09/2017 06/09/2017 PHONE PURCH PHONE TIME PURCHASE ‘ -0.22 o 06/09/2017 ‘ 05/23/2017 EPR OID:100006524—ComisaryPutt -7.59 05/23/2017 '05/22/2017 WDRAWAL CHE-TCCO MONTHLY FEES ' " -3.30 05/22/2017 F 000 'I' 05/19/2017 DEPOSIT MO WESTERN UNION . 10.00 H 05/19/2017 05/10/2017 PHONE PURCH.PHONE TIME PURCHASE? -0.45 05/10/2017 04/25/2017 BPR OID:100006164-ComisaryPurc —4.87 04/25/2017 04/18/2017 BPR OID:100006063-Comisarypurl —3.07 0.0 04/18/2017 04/17/2017 PHONE PURCBTPHONE TIME PURCHASE -0.45 04/17/2017 04/11/2017 DEPOSIT MO WESTERN UNION 10.00 |_I 04/11/2017 95:$2953F>953F)o<3c3c>6<3c>cE$c>o<>c>o<3c>o<3c>o COOOOOOOOOOOOOOOC’OOOOOOOOOOOO 03/23/2017 PHONE PURCH PHONE TIME PURCHASE -0.22 03/23/2017 a...o...-. 03/21/2017 PHONE PURCH PHONE TIME PURCHASE -l.56 o... 03/21/2017 03/21/2017 EPR OID:100005820-ComisaryPurt ~8.54 mQU'IODOl-‘OOOQO‘HH 03/21/2017 03/16/2017 PHONE PURCH.PHONE TIME PURCHASE -0.22 H5.- ‘ 03/16/2017 03/14/2017 DEPOSIT M0 WESTERN UNION 10.00 03/14/2017 03/14/2017 EPR OID:100005789-ComisaryFur( -4.60 ' 03/14/2017 03/11/2017 PHONE PURCH.PHONE TIME PURCHASE -2.68 03/11/2017 03/11/2017 PHONE PURCH.PHONE TIME PURCHASE -0.89 1 03/11/2017 02/28/2017 EPR OID:100005639-ComisaryPurx ~33.72 .4 O 02/28/2017 02/21/2017 EPR OID:100005557*ComisaryPurt -0.60 . 02/21/2017 02/20/2017 PHONE PURCH PHONE TIME PURCHASE -1.79 . Aha éWN 000 02/20/2017 02/17/2017 WDRAWAL CHE'TCCO MONTHLY FEES -16.50 . 02/17/2017 02/14/2017 DEPOSIT MO WESTERN UNION 50.00 HON r—In—I 02/14/2017 02/14/2017 DEPOSIT MO FIDELITY EXPRESS 10.00 I. 02/14/2017 ___.———-.._______________-____...——-._____——.—__________...________.__———_-_—————-..-________..____________—_..__ F__ REPORTER'SRECORD A P PE A R A N CE S vOLuHE3 0F5 VOLUMES CASEN0. 09-15~00094-cv IRIALcouRT CAUSEHo. 14-07-0729‘-cv HR. BRIT?LIHDSEY SBOT NO.24039669 IN RE. : IN THE DlsrklcrCOURT0F HS. KIHBERLYCLARK $801 N0.2‘066‘35 1H5 CONHITHENT 0F HUNTGOHERYcouulv,TEXAS SPECIALPROSECUTIONUNIV 1300 11thStreet.Su1tc 310 ROBERTBURNS HCEALL é ‘JSIHJUDICIAL DISTRICT Nuntxville.Texas 77340 Phono: 936-291-0‘31 ATIORNEVSFOR THESTATE HR. LLOYDSAUNDERS $801 N0.24076673 "R. ZACHARYLEE 10 $801 N0.24064542 STAIE COUNSELFOROFfENDERS 11 .o-noao¢ou........co---oo.ooo-o...o..... 200 flivorPo1n‘c0r1ve Conrou,Texas 17034 12 TRIAL Phone: 936-621-6700 ATTORNEYSFOR RESPONDENT 13 o.coooo-o.....oooouooo~..oo..oo.ooo..uo 14 1s 15 1s 0n January26,2015. the follouing proceedings 16 17 cane on\o be Hea}uInthe abovc-entitltd and nuzbared 17 1a causebarorc'theHonorab1c”tshunlT. $e1lar. Judge 1B 19 hoId Presiding. 1nConroe.HuntgouoryCounty, o nas. 19 20 ProceedingsreportedbyIach1ne :horthand and 20 m ironscrlp‘1om conpulcr-nidod 21 22 22 23 23 2‘ 2‘ 25 2S cvrvcvgz 2.;nrcor. 413th n:nzrtca (out: arc, ca...y. -l1:-3’J-aa)a Eroy Cheney. 01'1“.) ltwfiuv. ‘351h 010(r1tt Boull -Ile-530-Iill ‘ CHRONOLDGICALINDEX oo.......oooo.........ooooo VOLUHE3 0F 5 VOLUMES JURYIRlAL PRE-TRIALCONFERENCE UN oo.......................o- January26. 201$ PAGE VOL. g (Opencourt. Respondentpresent) Pre-TrtulConference 4 3 Vun‘roPanuI Sworn 17 3 o THE BAlLlFF:All r‘sc. 1h: courtwill Court‘sIntroduct‘on 18 3 Volr D1roby State 63 3 ¢ co-o toorder. Vo1r D1roby Rtspondenl 108 3 Jury Striketon’ercnce 127 3 THE COURT: Thankyou. Be nested. Jurorssoa£od 133 3 Court‘sInstructinnxtoJury 134 3 o This1s CauseNo. 14-07-0729l-CV. In Ru: The ConnitacntofRobnrtBurns McCall‘ EXHIBITS . 10 Do wehove Hr. flcCallhero? STATE'SEXHIBITS NO. DESCRIPTION ADEITTED VOL. 11 THE RESPONDENT‘Yes. Pen Packet THE count: Standup Hr,Nata11, Arc you Pan Pocket Pen o-su:ua Packet mmqqu UUUUU roadyfor trial? CV ofDr. 551? CV ofDr. HcGnrrnhan TNE RESPONDENT:Yes. ‘11. Raspouoeut‘éexuzerrs THE COURT: state,are yourtady? ND. DESCRIPTION ADHITTED VOL. NR.LINDSEY: State15 ready.Your Honor. 1 Petitioner'snotionfor 10 3 Exa-1naxlono!Respondent THE COURT: Canl have [hoIzlyorslpproach By Expert 18 tho bench?You canbe seated.Hr. McCaII. 2 Order 10 3 19 s‘ato1s Hr.L1ndaoy.and who1: your ?O COURTREPORTER'SCERTIFICATE 138 3 secondthere? 21 HR.LINDSEY: Kimberlyciark» 22 THE COURT: Isthatnr. Sounders? 23 NR.SAUNDERS: Yet, YourHonor. 24 THE COURT:And Zach Let? 25 HR.SAUNDERS: That‘scorrect.Your Honnfi case" 01.x:1z‘ Court ceoy :u.n.y, o!v1c!.u Icp.r‘cr. .esu-ssu-atsl .yla-JII-Sb)! uray ch.nqy, orvtcigl lupottcr, 413:. ovgtricl Cour( 85 86 was? d cohe DICK. VENIREPERSDN: Ye$, m HR. LINDSEY: Iunders(and, HR. LINDSEY: Are youcoafortab):(01l1ng a . Lot'ssec. No?_él.do youhave yourcard you wan( justleave that? raised? W us. ordta [o 1t at b VENIREPERSDN: I'd ratherapproach.1fI u VENIREPERSON:Hell, l servedon ajury, cou1d‘