NO CR IN THE FIFTH COURT OF APPEALS OF TEXAS AT DALLAS. STEVEN ROTHACKER, Appellant VS. THE STATE OF TEXAS, Appellee

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1 NO CR IN THE FIFTH COURT OF APPEALS OF TEXAS AT DALLAS STEVEN ROTHACKER, Appellant VS. THE STATE OF TEXAS, Appellee On Appeal from the Rockwall County Court Rockwall County, Texas Honorable Chris Florance, Presiding STATE S BRIEF CRAIG STODDART Assistant Criminal District Attorney Rockwall County, Texas SBN: Ridge Road, Suite 105 Rockwall, Texas (972) FAX (972)

2 SUBJECT INDEX Subject Index i List of Authorities ii Address to the Court Statement of the Case Statement of Facts Issues Presented I. ROCKWALL COUNTY JUDGE, CHRIS FLORANCE, DID NOT ERR IN DENYING APPELLANT S REQUEST FOR MANDAMUS DIRECTING MUNICIPAL COURT JUDGE, CATHY PENN, TO DEFINE THE TERM DOLLAR FOR PURPOSES CONTEMPLATED BY THE TEXAS CODE OF CRIMINAL PROCEDURE ARTICLE Summary of Argument Argument and Authority Conclusion and Prayer Certificate of Service Certificate of Compliance i

3 LIST OF AUTHORITIES CASES PAGE Boyce v. County of Williamson, 2002 WL (Tex.App.-Austin [Not Designated for Publication]) Buckley v. State, 1992 WL (Tex.App.-Dallas [Not designated for Publilcation]) Casner v. Rosas, 943 S.W.2d 937 (Tex.App.- El Paso 1997, no pet.).. 4 Ex Parte Pena, 71 S.W.3d 336, 338 (Tex.Crim.App. 2002)... 5 Hankins v. State, 132 S.W.2d 380, 385 (Tex.Crim. App.2004).. 5 In Re Chang, 176 S.W.3d 451, 452, (Tex.App.Houston [1 st Dist.] 2004, orig. proceeding)... 3 In re Eric Rollins, , 2009 Tex.App.LEXIS 3282 (Tex.App.-Houston [14 th Dist] orig. proceeding [Not Designated for Publication]).. 3 Ordunez v. Bean, 579 S.W.2d 911 (Tex.Crim.App.1979)... 5 Pope v. Ferguson, 445 S.W.2d 950, 954 (Tex. 1969)... 5 Rothacker v. Rockwall County Central Appraisal District, 703 S.W.2d 235 (Tex.App.-Dallas 1986, Ref.N.R.E.)... 7 STATUTES TEX. CODE CRIM.PROC. art TEX.CRIM.PROC. art (a)&(b) TEX.GOV T CODE ANN (b) ,4 TEX.R.APP.P. 38.1(i) ii

4 NO CR IN THE FIFTH COURT OF APPEALS OF TEXAS AT DALLAS STEVEN ROTHACKER, Appellant VS. THE STATE OF TEXAS, Appellee On Appeal from the Rockwall County Court Rockwall County, Texas Honorable Chris Florance, Presiding STATE S BRIEF TO THE HONORABLE COURT OF APPEALS: Now comes the State of Texas by and through her Assistant Criminal District Attorney for Rockwall County, Texas, Craig Stoddart, and files this State s Brief. SPECIAL STATEMENT It is unclear from appellant s pleadings whether he attempts to appeal the decision of the lower court in denying his Writ of Mandamus or whether he seeks mandamus relief from the Court of Appeals. Both possibilities will be addressed in this brief. 1

5 STATEMENT OF THE CASE Though a judgment is not contained in the clerk s record submitted with this appeal, it is apparent from appellant s pleadings that he was convicted in Municipal Court of the offense of speeding. [Clerk s Record, p. 2]. Appellant was assessed a fine of $ [Clerk s Record, p. 2]. According to appellant s Writ of Mandamus, he questioned whether a fine assessed in dollars was appropriate to satisfy the requirements of article of the Texas Code of Criminal Procedure and requested Municipal Judge Cathy Penn to define the term dollar. [Clerk s Record, p. 2]. It is unclear from the record whether the Judge Penn failed to answer his question or simply provided an answer unsatisfactory to appellant. Appellant filed a Writ of Mandamus in Rockwall County Court, asking the Court to issue an Order commanding Judge Penn to respond to his questions. [Clerk s Record, p. 2]. On February 3, 2010, the Court denied appellant s Writ of Mandamus. [Clerk s Record, p. 6]. On April 7, the Court signed an Order denying both the Writ of Mandamus and a subsequent Motion to Reconsider the Writ of Mandamus. [Reporter s Record, p. 9]. Appellant filed this appeal, challenging the ruling of the County Court and requesting mandamus relief. STATEMENT OF FACTS A recitation of the facts in this case is impossible as no Reporter s Record was included with this appeal. ISSUES PRESENTED ROCKWALL COUNTY JUDGE, CHRIS FLORANCE, DID NOT ERR IN DENYING APPELLANT S REQUEST FOR MANDAMUS DIRECTING 2

6 MUNICIPAL COURT JUDGE, CATHY PENN, TO DEFINE THE TERM DOLLAR FOR PURPOSES CONTEMPLATED BY THE TEXAS CODE OF CRIMINAL PROCEDURE ARTICLE SUMMARY OF ARGUMENT Appellant is not entitled to the mandamus relief requested from the Fifth Court of appeals. Section of the Texas Government Code confers upon the Courts of Appeals mandamus jurisdiction over district or county courts or when necessary to enforce its jurisdiction. The facts of the instant case do not fall into either category. Appellant has failed to adequately brief the issues as required by Rule 38.1 of the Texas Rules of Appellate Procedure. As a result, nothing is presented for review. The Rockwall County Judge properly denied appellant s Writ of Mandamus. Mandamus is a remedy available only when no other adequate remedy at law exists. Appellant could have raised his issue in an appeal to the county court. It is well settled that federal reserve notes, which are valued in dollars, are the legal tender of the United States and exist as the only appropriate means by which to pay assessed fines. ARGUMENT AND AUTHORITY As stated above, it is unclear whether appellant seeks mandamus relief from the Court of Appeals to direct the Municipal Court Judge to define the term dollar and to address its propriety under article of the Texas Code of Criminal Procedure or whether he appeals the Rockwall County Court s denial of his Writ of Mandamus. In either event, appellant is not entitled to the relief sought. 3

7 1. Mandamus Relief from the Court of Appeals In his prayer for relief, appellant requests the Court of Appeals to mandate Municipal Court Judge, Cathy Penn, to define the terms lawful money of the United States and dollar as they relate to the Texas Code of Criminal Procedure. The relief he seeks is unavailable. Section of the Texas Government Code governs the mandamus jurisdiction of the courts of appeals in this State. That section expressly limits a court of appeals mandamus jurisdiction to (1) writs against a judge of a district court or county court in the court of appeals district, and (2) all writs necessary to enforce its jurisdiction. TEX.GOV T CODE ANN (b); see also In Re Chang, 176 S.W.3d 451, 452, (Tex.App.Houston [1 st Dist.] 2004, orig. proceeding) as cited by In re Eric Rollins, , 2009 Tex.App.LEXIS 3282 (Tex.App.-Houston [14 th Dist] orig. proceeding [Not Designated for Publication]); see also Casner v. Rosas, 943 S.W.2d 937 (Tex.App.- El Paso 1997, no pet.)[holding that the Texas Government Code confers upon the courts of appeals mandamus jurisdiction over district and county courts but not justice courts]. Because Judge Penn is a municipal court judge, not a district or county court judge, provides no authority for a court of appeals to issue a writ of mandamus against her unless necessary to enforce its jurisdiction. Appellant does not assert that the issuance of a writ of mandamus is necessary to enforce the jurisdiction of this Court. To the extent that appellant seeks mandamus relief from the Fifth Court of Appeals against Municipal Court Judge Cathy Penn, his cause should be dismissed for lack of jurisdiction. 4

8 2. Appeal from Judge s Denial of Mandamus In addition to seeking mandamus relief from the Court of Appeals, appellant appears to seek a direct appeal of the lower court s denial of his writ of mandamus. No cases or authority were found, and none were cited by appellant, which provide for that remedy. However, if direct appeal is a proper and available remedy, appellant has failed to provide adequate briefing of his issues; failed to show that he has no adequate remedy at law other than mandamus, and; failed to show that he was harmed by any alleged error. A. Appellant s Issues are Inadequately Briefed. Rule 38.1 of the Texas Rules of Appellate Procedure requires that a brief must contain a clear and concise argument for contentions made, with appropriate citations to authorities and to the record. TEX.R.APP.P. 38.1(i). A point of error that is conclusory and cites no authority presents nothing for review. Hankins v. State, 132 S.W.2d 380, 385 (Tex.Crim. App.2004). Appellant s brief contains a Statement of the Case, wherein he provides a short procedural history of the case and a 5 point list of concerns. Appellant complains that the Municipal Court failed to define the term dollar or show how dollars are in accordance with art of the Texas Code of Criminal Procedure[s] ; the municipal court violated appellant s constitutional rights by forcing him to post a $400 appeal bond; that his writ of mandamus and subsequent motion to reconsider were denied; that he has been denied due process; and that no one will inform him whether a dollar is or is not a federal reserve note. Appellant s brief lacks any meaningful argument or analysis of the issues presented; lacks any references to the record and does not contain any apposite 5

9 supporting authority. The conclusory nature of appellant s brief provides nothing for appellate review. Appellant s issues should be overruled. B. De Novo Appeal of Appellant s Speeding Ticket Provided an Adequate Remedy at Law. It is well settled that mandamus is not available to a petitioner if there exists another adequate remedy at law. Pope v. Ferguson, 445 S.W.2d 950, 954 (Tex. 1969); Ordunez v. Bean, 579 S.W.2d 911 (Tex.Crim.App.1979). A defendant may obtain relief from an illegal sentence on direct appeal. Ex Parte Pena, 71 S.W.3d 336, 338 (Tex.Crim.App. 2002). Article of the Texas Code of Criminal Procedure provides that appeals from a justice or municipal court are generally heard de novo (with the exception of municipal courts of record) by the appropriate county court. TEX.CRIM.PROC. art (a)&(b). In the instant case, appellant questions the legality of being ordered to pay a fine in dollars. Effectively, appellant s argument that dollars are not lawful money of the United States is tantamount to an assertion that his sentence ($ dollar fine) was illegal. As shown above, appellant could have raised that issue in an appeal to County Court. Because the law provided appellant with an adequate remedy to address his concerns, mandamus was unavailable and the County Court was correct in its denial of appellant s writ. C. Federal Reserve Notes Valued in Dollars are Legal Tender. Finally, Municipal Court Judge, Cathy Penn, had no duty or obligation to provide a definition of dollar. Article provides that all fines shall be collected in the lawful money of the United States only. TEX.CODE CRIM.PROC. art Courts, including this one, have addressed the issue presented by appellant and determined that 6

10 federal reserve notes, which are valued in dollars, are legal tender. Rothacker v. Rockwall County Central Appraisal District, 703 S.W.2d 235 (Tex.App.-Dallas 1986, Ref.N.R.E.); Buckley v. State, 1992 WL (Tex.App.-Dallas [Not designated for Publilcation]); Boyce v. County of Williamson, 2002 WL (Tex.App.-Austin [Not Designated for Publication]). These cases recognize the power vested in the United States Congress by the Constitution of the United States to establish a uniform system of legal tender. Based upon the foregoing authority, Judge Penn could not have assessed a fine in anything other than the legal tender of the United States: dollars. CONCLUSION AND PRAYER WHEREFORE, PREMISES CONSIDERED, there being legal and competent evidence to support the trial court s decision and no evidence suggesting any abuse of discretion and no error appearing in the record of the trial of this case, the State moves this Court to affirm the judgment of the Court below. Respectfully submitted, Craig Stoddart Assistant Criminal District Attorney Rockwall County, Texas SBN: Attorney for the Appellee The State of Texas 7

11 CERTIFICATE OF SERVICE This is to certify that a true and correct copy of the foregoing State s Brief has been mailed to Appellant, Mr. Steven Rothacker, 689 Kentwood Dr., Rockwall, Texas 75032, on this the day of, Craig Stoddart 8

12 CERTIFICATE OF COMPLIANCE I certify that this submitted CD or attachment of the brief complies with the following requirements of the Court: 1. The brief is submitted on a CD or by attachment; 2. The CD or attachment is labeled with the following information: A. Case Name: ROTHACKER V. STATE B. Appellate Case Number: CR C. The Type of Brief: APPELLEE D. Party for whom the brief is being submitted: THE STATE OF TEXAS E. The word processing software and version used to prepare the brief: MS WORD 3. The CD or attachment contains only an electronic copy of the brief and the appendix. The documents in the appendix conform to the requirements of the Texas Rules of Appellate Procedure 9.8 and 38.1(k). 4. The CD or attachment is free of viruses or any other files that would be disruptive to the Court s computer system. The following software, if any, was used to ensure the brief is virus-free: 5. I understand that a copy of this brief may be posted on the Court s website and that the electronically filed copy of the brief becomes part of the Court s record. 6. Copies have been sent to all parties associated with this case. Craig Stoddart Assistant Criminal District Attorney Rockwall County, Texas Date: 9