Cause No. CCL-03-499





In the County Court at Law



NO. 2


Ronald F. Avery






Defendant’s Motion to Correct Complaint

And Set Aside Information Permanently



Now comes, Ronald F. Avery, Defendant, and begs the court to correct the Complaint filed by Affiant, Teresa Rigney, on March 20, 2003 and to Set Aside the Complaint filed by same and the Information issued by Elizabeth Murray Kolb on behalf of the STATE OF TEXAS and Dismiss this Cause on Behalf of the STATE OF TEXAS on the following grounds.


The Complaint is misleading regarding the Facts

The Complaint sworn and subscribed before a notary by Teresa Rigney against Defendant, Ronald F. Avery, omits important facts known to the Complainant in order to mislead the court and the jury. The Complaint fails to mention that the Defendant called the Sheriff and City Police on himself immediately upon breaking the window at Guadalupe-Blanco River Authority (GBRA) because he was upset about GBRA refusing to pay for damage their contractor did to Defendant’s property in McQueeney, Texas which they were clearly responsible to pay for.

The said Complaint misleads the court and jury into believing that they need to determine if Defendant, Ronald F. Avery, actually broke the window. This is no question at all as the Defendant has admitted this fact to Deputies and Police only seconds after breaking the window. Yet, the Defendant does not want to plead Nolo Contendere because of the extenuating circumstances that make GBRA and William West Jr., and David Welsch and GBRA criminally responsible for the damage they sustained to their window. It would be an injustice to Defendant for the court or the jury to find that Defendant is guilty of breaking a window at GBRA as if there were no other facts that contributed to that event making GBRA criminally responsible for the damage they sustained. It is impossible for the jury to find that Defendant did not break the window. But it is also an injustice for a jury to find that Defendant did break the window or for Defendant to plead Nolo Contendere and this is all that the Complaint seeks to address. The mere conviction of Defendant for breaking a window could cause him much injustice.

The Defendant has just found a document he had misplaced the same month he signed it or for about four years that proves GBRA knows they are liable for the damage they did to Defendant’s property in McQueeney and the damage they have sustained to their window at their office in Seguin, Texas. GBRA wrote a “PERMIT AND RIGHT OF ENTRY FOR EMERGENCY WATERSHED PROTECTION (EWP)” contract for Defendant to sign. Defendant added an addendum and a site plan as an exhibit and signed it before a notary. This “PERMIT” ( Exhibit gbra-roe ) granted to GBRA by Defendant in April of 1999 shows that GBRA knew they needed permission from Defendant to send their contractors on Defendant’s property and that GBRA is liable for all damage done to Defendant’s property as a result of their own contractors. This permission was good for only 90 days and GBRA sent their contractors to Defendants property without permission in 2003. When Defendant charged GBRA for $13,000 worth of damage they refused to pay it and sent a letter to Defendant ( Exhibit F ) stating that the Defendant had developed a contract with their contractor by allowing him to remain on Defendant’s property and GBRA was no longer liable. GBRA knows better than taking this position and their refusal to accept their clear responsibility caused the outrage of Defendant and the resulting damage to their own window in the amount of $678.

It is a fact that Defendant would not have broken the window at the office of GBRA had GBRA paid for the damage they did to Defendant. Under the Penal Code, Section 6.04 (a) makes a person “criminally responsible if the result would not have occurred but for his conduct, operating either alone or concurrently with another cause, unless the concurrent cause was clearly sufficient to produce the result and the conduct of the actor clearly insufficient.” There was no cause or intent of Defendant to break a window at GBRA absent the omission of GBRA’s obligation to pay for the damage GBRA did to Defendant.

The Defendant begs the Prosecuting Attorney to correct the known false evidence that they have a constitutional duty to perform under the Code of Criminal Procedure Art. 2.01. Under this provision “the prosecutor is more than a mere advocate, but a fiduciary to fundamental principles of fairness. It does not matter whether the prosecutor actually knows that the evidence is false; it is enough that he or she should have recognized the misleading nature of the evidence. The purpose of imposing this paramount constitutional duty is ‘not to punish the prosecutor or the trial court for the error committed, but rather to avoid an unfair trial to the accused.’” Duggan v. State, 778 S.W.2d 465, 468. (Tex. Criminal App. 1989).


Warning Ticket

 The Warning Ticket misled Defendant into thinking the matter could well be over when Defendant left the parking lot after breaking the window despite the statement made by the police officer that GBRA would have the right to bring a prosecution against Defendant in the future. The Warning Ticket ( Exhibit Ea ) says on its face that, “THIS IS A WARNING ONLY for an infraction of Texas laws committed to a minor degree or with extenuating circumstances present. NO PENALTY will be assessed and NO FURTHER ACTION on your part is necessary other than to comply with the laws in the future. This DOES NOT become part of your record.”

The Warning Ticket states that the violation complained of was “Criminal Trespass,” which is what Defendant is now being prosecuted for in this cause. The Warning Ticket then says under the SIGNATURE line where Defendant signed their name, “This warning is given to you in an effort to secure your cooperation in better observance of the Texas laws. The Seguin Police Department believes that good citizens will comply with the laws when reminded of their provisions and of the importance of strict compliance with them.”

Regardless of the statement made by the Officer, the Contract / Ticket Defendant signed states that “NO PENALTY will be assessed” and “NO FURTHER ACTION” on the part of Defendant is necessary. For this reason GBRA, The City of Seguin and the STATE OF TEXAS are now estopped from bringing this Criminal Mischief Complaint against Defendant a year later when Defendant has acted as if no prosecution was ever coming.


Appearance of Collusion Between Prosecution and GBRA

Both the COMPLAINT and the INFORMATION which were filed on March 20, 2003 at 8:50 AM, 22 days after the window breaking incident had part of the mailing address wrong for the Defendant. That is to say more accurately, had this INFORMATION been served on the Defendant in a timely manner it would have arrived at the home of the Defendant the following day, on or about March 21, 2003, not a year and one day after the window event, on February 28, 2004. Defendant received the “Notice of Setting” for Arraignment at his home more than eleven months after the filing of the COMPLAINT and the INFORMATION ( Exhibit ccl ). The Defendant was actively pursuing the development of his RV Park during this time, not preparing for his defense.

This delayed prosecution is suspicious to everyone who hears of it. And it further leads the Defendant to believe that there was some kind of intentional delay in the serving of this “Notice of Setting” or Arraignment of the Defendant. When Defendant, Avery, inquired of Elva Garcia, an employee of the County Clerk who signed the COMPLAINT and the INFORMATION, as to why this was served upon him by ordinary mail a year and one day after the window breaking incident, Ms. Garcia said that the address for Avery was in McQueeney, Texas rather than Seguin. She said it was only a coincidence that it was served exactly one year from the date of the offense.

The Defendant does have a business property in McQueeney, the subject of this whole affair, and a Post Office Box address for same but his home is located in Seguin at the street address shown on the Complaint and Information signed by Elva Garcia, Elizabeth Murray Kolb, and Teresa Rigney. But the city listed was incorrect. The city is shown on the Complaint and Information as McQueeney not Seguin as it should. But does it take a year to correct an address as simple to correct as this one?

In light of evidence in a joint affidavit ( Exhibit JA ) that GBRA and William West Jr., General Manager of GBRA, wanted to stop Defendant’s construction of an RV Park on Defendant’s property in McQueeney, it makes some culpable sense for these parties to delay the prosecution until Defendant was at the critical point of hiring the Contractor and closing on the Loan.

Had the Defendant known that a COMPLAINT had been filed and that INFORMATION had issued against him on March 20, 2003, he would not have pursued a loan and finished plans for his RV Park and bid his project out to Contractors until this matter was disposed of. If the Defendant had known of this pending prosecution against him back on March 20, 2003, he would have dropped all those RV Park plans and begun his defense effort. Development plans are irrelevant when Defendant stands to lose his license to practice architecture and interior design in the State of Texas and do a year in jail. Defendant has now had all that effort and expense of seeking to develop his property wasted.


Extraordinary Damage from Prosecution and Delay

The misleading Complaint, the suspicious delay in the notice to Defendant of this prosecution and the stated motives of Mr. West at GBRA has caused Defendant extraordinary damage that exceeds the pecuniary penal limits of this court. The Defendant has lost his $511,000 loan and all expenses and efforts to build his park at interest rates that are desirable in efforts to defend himself at this critical stage in his development plans and this well exceeds the $4,000 maximum penalty this court can impose beyond the property damage done which is another $678 even if Defendant was found guilty without any extenuating circumstances. For this reason the prosecution should correct the Complaint and Information and permanently set aside this cause and expunge all records against Defendant related to this matter.


Harm to Presumption of Innocence

The unexplainable and strange delay (regardless of its legality or the repeal of the Texas Speedy Trial Act) impairs the “presumption of innocence” that the prosecuting attorney is to maintain under the Code of Criminal Procedure Art. 2.03. This strange delay also undermines the duty of County Prosecuting Attorneys “not to convict, but to see that justice is done,” under the Code of Criminal Procedure Art. 2.01

WHEREFORE, PREMISES And FACTS CONSIDERED, Defendant prays that the Court coordinate with the Prosecutor for the STATE OF TEXAS to Correct the Complaint and Information and permanently Set Aside the prosecution of Defendant and Expunge his record of all evidence related to this cause.


Respectfully Submitted,


Ronald F. Avery     Pro Se

1955 Mt. Vernon

Seguin, Texas 78155