Cause No. CCL-03-499
In the County Court at Law
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
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. (
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 (
) says on its face that, “THIS IS A WARNING ONLY for an infraction of
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
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
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 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
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
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
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.
Ronald F. Avery Pro Se