For those who are curious the following is the background of events 21 years ago that led to the current situation. These, too, are (1) facts of public record, not subject to reasonable dispute; and, (2) adjudicated facts. In other words, facts certified by the our judicial Officials, referred to as 'the courts', in Final Judgments. Therefore; not subject to dispute, re-litigation, or judicial review.
The Parties Involved:
A Real Estate Broker
An Agent under contract with the Broker, for 9 months up to and including events
The government (the State)
The foregoing facts alone tell any competent, honest, attorney employed as a prosecutor, or as a Judge, that the government (aka 'the State') has no authority (no jurisdiction / no privilege granted by law), to interfere with a criminal prosecution because (1) a lawful contract is a private matter between the parties; and, (2) the Texas Real Estate Commission governs Brokers and Agents.
Thus, no probable cause.
Not even 'reasonable suspicion' for prosecutor involvement.
A matter between a Broker and an Agent under his sponsorship is governed by:
(1) by the Texas Real Estate Licensing Act, and
(2) by the private law of the contract between them.
And both the Texas Real Estate Licensing Act and the Contract clearly and unequivically state that:
all commission is owned by, and is the property of, the Broker
So how could the Broker be charged with theft of any commission if all of it is owned by him!
This was an internal business matter and cannot, in a law abiding State, give rise to government interference or be treated as a criminal justice issue. In legalese - the State acted without jurisdiction (authority granted by law) to intervene, to interfere, to impair the obligations of the contract between the private parties to the contract.
But here is what transpired between the Broker and the Agent under his sponsorship. And then what the government of Texas (the State) did through a prosecutor acting in the name of the State. The are the fact as testified to by the Agent, by the person the State presented as a 'victim'. See for yourself the Public Record HERE (Testimony)!
Sequence of Events:
Wednesday AM; Commission for Broker picked up by Agent
Same day & time; Agent brings check to Broker.
Same day & time; Broker gives Agent deposit slip for Broker's bank account, for deposit of commission check & gives agent a post-dated check to allow time for deposit to clear.
NEXT DAY, Thursday, 3:30 PM. Broker asks bank to withhold payment on post-dated check.
Friday AM; Agent goes to government of Texas (Office of District Attorney) and government actor instructs bank to freeze Broker's account.
Friday PM: The Broker learns, from another agent attempting to cash a check, his account has been frozen.
Late Friday: The Agent asks the Broker to replace the post-dated check on which the hold had been placed. Broker cannot because the commission cannot be collected until funds are available in the bank acount. It would be issuing an NSF if done without knowing when, if ever, funds will be available.
Following Wednesday: Broker's commission is still frozen by bank. It remains unavailable to him, preventing him from settlement with agent. It is now taken from Broker's bank account by the State.
Two days later, on Friday, Broker is handcuffed in his office and taken to jail - imprisoned by the State.
Obviously, there was no crime! But juries can be misled by those they trust.
That is, no crime until the State became involved and committed a crime! The State, via egregious disregard for the law by some employed at public expense in positions of public trust, committed a theft of the Broker's property. Thus Broker is unable to collect the commission. Without collecting commission no payment from Broker can come due to Agent!
the absence of a crime -by the Broker - was the cause for the reversal and acquittal,
How can the Broker's innocence be anything other than actual?
Even the Agent, whom the State said was a 'victim' of theft, testified that he was not a victim of theft, testified that the Broker is the owner of the commission, and that no commission was due him until Broker the commission cleared the Broker's bank account and was available for collection. See for yourself the Public Record HERE (Evidence)!
If Agent, or Broker, had a belief that the other party was in breech (had committed a violation) of terms of the contract they could only involve the government by utilizing the civil courts to settled their private dispute.
And even then only AFTER a breech. In this case, there was no breech. The Agent testified he went to the government because he feared a FUTURE breech was afoot. The very purpose for a contract is to prevent speculation of a future breech. The government (aka 'the State') could not lawfully enter as attorney for either party to bring the matter between them into the criminal courts. But they did. The Agent did not complain of a breech. He only feared there might be a FUTURE breech.
After the State took the funds no payment could come due to the agent, pursuant to the terms of the contract, and no payment to him could possibly be made. If the State had stayed out of the matter the payment would have come due and Pettorino would have been paid pursuant to the contract. Relevant portions of the contract are included in Writ to Appellate Court demanding Assistant AG Cynthia Alexander correct her misrepresentations.
Facts of Public Record and Adjudicated - not subject to dispute
Broker was operating pursuant to his authority as a Broker under the Texas Real Estate Licensing Act.
Broker was and remains in compliance with the terms of the contract between him and the Agent.
Broker did not 'take' anything from the Agent. No payment from Broker was due to the Agent at the time.
NOTE: Wages are not due until the agreed upon pay day. Payments on contracts are not due until the agreed upon day set by the terms of the contract. Fear that you will not get paid in the future does not give you, or the government, the right to commit a theft of your employer's property or the property of a person you have contracted to work with. But that is what the agent, and the government, did in this case.
As noted by the Court of Appeals in the reversal and acquittal, and as obvious from the facts if any bother to read the contract, Broker was and remains in compliance with the private law of the contract, and the Real Estate Licensing Act. The government acted in violation of these private and public laws. With assistance of government actors, the Agent remains in breech of the contract.
Immaterial and Irrelevant Fact used to mislead jury: At trial the State's actors, the prosecutor and the Judge, gave the jury the impression the Broker's future actions were subject to speculation by the State and the jury. Law cannot require anyone to give an explaination for the performance of an act that is legal. Only if an illegal action is at play can a person's actions give rise to speculation by the government or a jury. It's known as 'reasonable suspicion' and State Actors - prosecutors and judges - have a legal and fiduciary duty to know this.
But even with the State's unlawful speculation of the Broker's FUTURE actions, and allowing the jury to speculate of his FUTURE actions, the State got it wrong as you can see from this link to documents of public record.
In this case the Law that secures the right for you to ask your bank to withhold payment on a check does not require a cause be given. But the Broker did. He wrote on the stop pay request "cover charge due". And, as noted by the Court on the reversal of the conviction with order of acquittal, Charges were due from the Agent to the Broker that had not been deducted, pursuant to the terms of the contract, from the amount on the post-dated check.
When the government brings a civil matter into a criminal venue they taint the jury
Criminal venue is for determining guilt and innocence. The parties are cast into roles by the governments actions. One party to the contract is appears before the jury as the accused with the implication that he has perpetrated a crime. The other party, implicitly favored by the government, as the complainant, is presented with the implication he is a victim.
By contrast the civil venue is for determining which, if either, party is liabile to the other. Both plaintiff & defendant clearly stand as equals before the jury.
The absurdity of the allegation by the government (aka the 'State')
The government (aka the 'State') alleged the act of asking a bank to withhold payment on a post-dated check constitutes the crime of theft. This is obviously absurd on two counts.
The request that your bank withhold payment on a check is only possible because it is a right that you have as the owner of a bank account. It is a right secured by Law. It is secured by the common law known as the Uniform Commercial Code and secured by statutory law in Texas codified in the Business & Commerce Code.
If it was illegal act, or act of theft, it would be the Bank that withheld payment that committed the unlawful act, the theft. Asking your Bank to withhold payment is not an 'act'. It is a request for an action. The 'actor' is the Bank. In this case, followed by the State by taking funds from the bank.
(1) a check is not a collection of funds, and; (2) a check is not a transfer of title (ownership) of funds. A competent attorney knows this. A license imposes a duty to know the law. Real Estate Brokers & Agents have a duty to know Contract and Real Estate Law. So, too, do those who hold a license to practice law, as well as criminal law. But in this case the prosecutor & judge refuse to take judicial notice of the law and chose to misrepresent the law to the jury.
Elements of a Theft: The taking (an act), by assuming possession, management and control, of property to which another is the owner (has title to).
The Broker was the only one with title (ownership) of the commission at any time. Yet the Broker was the one that was prevented by Agent's act, followed by the acts of the State, and the Bank operating on instructions from the State, from ever having possession, management, or control of the commission! For some a review of the Basics of Banking (commercial paper law) may be helpful.
The complainant was the government (aka, 'The State of Texas'), alleging a violation of it's laws. But in this case the government unlawfully assumed the position of Attorney for a Private Individual and the Individual represented by the government was presented as a 'victim' of a crime. It was the government that committed the crime, the theft, the unlawful taking of property to which another (the Broker) had title to and is the lawful owner of. Not the Broker.
In the end, both Broker and Agent were victims of unlawful government interference in a private matter. But a prosecutor got to claim a 'win'. He was able to prove his prowess as an attorney. A trial lawyer employed at tax payer expense proved he could beat the facts and the law.
CONSTITUTIONAL - violations of the supreme Law of the Land
Making a legal act illegal after the act is committed is a violation of a basic human right secured by International Law and our Supreme Law of the Land, in both our US and our Texas Constitutions. See the International Covenant on Civil & Political Rights - an International Law authored by the United States and ratified by our US Congress to make it part of our supreme Law of the Land;
Article 15; No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence at the time when it was committed. [Retroactive / Ex Post Facto Law]
Our Constitution for the United State of America initially had no bill of rights. But there were three (3) Rights of the Individual specifically secured therein. In Article I, Section 9, as prohibiting actions by the Federal government, and again in Section 10 as prohibiting actions by governments in the States, upon persons on this land.
1. PROHIBITED: Impairing the Obligations of
2. PROHIBITED: Retroactive / Ex Post Facto Law
3. No Title of Nobility shall be granted.
- The government (aka 'the State') impaired the obligation
that Agent had to his Broker by it's unlawful
- The government (aka 'the State') of Texas made retroactive / ex post facto law by
(1) depriving the Broker of the protection of the Law provided in the Texas Real Estate Licensing Act' and,
(2) depriving the Broker of the protection of the Law provided to owners of checking accounts by statutes in the business and commerce code.
The government retroactively made an act performed pursuant to the protection of these law, a crime. (retroactive meaning after the fact; in Latin, ex post facto) Heimlich had relied upon these laws for his protection. He was made a victim for his compliance with the law. Those who broke the law were rewarded.
The government (aka 'the State') deprived this Citizen of the
equal protection of the law intended by the prohibition
against grants of any Title of Nobility
Paper #84 for understanding).
This reveals that what we now have on our land of Texas is
a government with ability for virtually unlimited regulation of business and commerce.
This is government 'overreach' far beyond any other given attention in recent elections.
This Broker learned the hard way that the general public is easily blinded by a title applied to a position of public trust. These titles create a presumption of knowledge and a presumption of integrity. These presumption cause the general public to suspend their capacity for logic and reasoning. At the same time they cannot help but to presume the accused is guilty. (a notable recent example is the indictment of our longest serving Governor, the Honorable Rick Perry). The result is that a citizen is easily railroaded by overzealous trial lawyers for the State (aka prosecutors) who are more concerned with being able to claim a 'win' in the courtroom then with complying with duty of a prosecutor. The Law of Texas that says "the duty of a prosecutor is not to convict, but to see that justice is done" (see TX Code of Crim. Procedure). Justice demands a respect and regard for Rights secured by our Constitution. In the event of probable cause, a fair trial with due process of law.
The problem with unlawful acts by
Attorneys employed as Prosecutors is the public assumes
(1) They know
the law, and;
(2) are acting in accordance with the law.
Thus they do not question what is even an absurd accusation.
(1) They know
the law, and;