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Borne v. State

Court of Appeals of Texas, Ninth District, Beaumont

January 8, 2020


          Submitted on November 12, 2019

          On Appeal from the 221st District Court Montgomery County, Texas Trial Cause No. 18-09-12373-CR

          Before Kreger, Horton and Johnson, JJ.


          LEANNE JOHNSON Justice

         Pro se Appellant Ethan Watson Borne appeals his conviction for the manufacture or possession of a controlled substance-lysergic acid diethylamide (LSD)-with the intent to deliver, in an amount of eighty abuse units or more but less than 4, 000 abuse units, a first-degree felony. See Tex. Health & Safety Code Ann. § 481.1121. The court assessed punishment at ten years' imprisonment, probated for a period of ten years. Borne raises three issues on appeal related to jurisdiction, due process, and alleged violations of certain constitutional rights. We affirm.


         A grand jury indicted Borne for possession of LSD, a controlled substance, with intent to deliver. See id. At trial, Department of Public Safety (DPS) Trooper Christopher Olvera testified that he stopped Borne's vehicle in The Woodlands after the trooper's radar unit showed that Borne was traveling fifty-four miles per hour (mph) in a forty-five mph zone. Olvera asked Borne for his driver's license and noticed that Borne's hands were "shaking uncontrollably" and Borne tried to hand the trooper a credit card instead of his driver's license. Olvera observed a "wad of money" and a "vape pen"[1] inside the vehicle, and after he asked Borne to get out of his car, Olvera also saw a white powdery substance on the driver's seat.

         According to Trooper Olvera, after Borne refused consent to search his vehicle, Olvera called for a canine unit. Montgomery County Sheriff's Deputy David Everton responded with his canine partner, and the canine alerted to an odor of a controlled substance. Olvera searched Borne's car and found LSD in the center console, the glove compartment, and Borne's wallet. Olvera found a total of 277 LSD abuse units, along with $238 in cash on the floorboard and $361 in cash in Borne's wallet. Olvera testified that he also saw a text message appear on Borne's cell phone, asking about the availability of "fungus and/or acid," and Olvera explained that "fungus" is a street name for psilocybin mushrooms and acid is a street name for LSD. The State offered into evidence a Controlled Substance Analysis Laboratory Report of a substance found with Borne, and the report described the substance as 277 squares of paper containing LSD. Trooper Olvera testified that the amount of LSD found was "a very large amount[, ] . . . way more than a personal use amount[]" and the Trooper believed that Borne possessed the drugs with the intent to deliver.

         Borne did not dispute the facts at trial. The jury found Borne guilty, and after a hearing on punishment, the trial court sentenced Borne to ten years' imprisonment probated for ten years.


         Appellant summarizes his issues on appeal as follows:

I submit this appeal to this Honorable Court as the law in which the trial court has jurisdiction over me, a man, was not proven on the record, I was denied due process of law, a right protected by the Texas and United States Constitutions, and other constitutionally protected rights that were violated.

         Standard of Review

         Borne appeared pro se at trial and on appeal. A pro se litigant must comply with the rules of evidence and procedure and is not to be granted any special treatment because he has asserted his pro se rights. Johnson v. State, 760 S.W.2d 277, 279 (Tex. Crim. App. 1988); Griffis v. State, 441 S.W.3d 599, 612 (Tex. App.- San Antonio 2014, pet. ref'd). Although we construe pro se arguments "with patience and liberality[, ]" Borne, as a pro se appellant, is not entitled to any special treatment and is held to the same standards as licensed attorneys. See Grubbs v. State, 440 S.W.3d 130, 133 n.1 (Tex. App.-Houston [14th Dist.] 2013, pet. ref'd); Barnes v. State, 832 S.W.2d 424, 426 (Tex. App.-Houston [1st Dist.] 1992, orig. proceeding).

         To preserve error for review, a litigant must timely object to the alleged error and state the grounds for the ruling sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context of the objection. See Tex. R. App. P. 33.1(a)(1)(A); Dixon v. State, 2 S.W.3d 263, 265 (Tex. Crim. App. 1998). The purposes of requiring a timely, specific objection are (1) to inform the judge of the basis of the objection and give him the chance to make a ruling on it, and (2) to give opposing counsel the chance to remove the objection or provide other testimony. Garza v. State, 126 S.W.3d 79, 82 (Tex. Crim. App. 2004) (citing Zillender v. State, 557 S.W.2d 515, 517 (Tex. Crim. App. 1977)).

         An appellate brief must state all issues presented for review clearly and concisely and include appropriate citations to authorities and to the record. See Tex. R. App. P. 38.1(f), (i). Borne's brief raises sub-issues within each main issue. When an appellant raises multiple issues in a single point of error, the point of error is multifarious, and an appellate court may decline to address those matters. See Mays v. State, 318 S.W.3d 368, 390 n.82 (Tex. Crim. App. 2010) (citing Wood v. State, 18 S.W.3d 642, 649 n.6 (Tex. Crim. App. 2000). However, we may address the issue in the interest of justice if we can determine, with reasonable certainty, the alleged error about which a complaint is made. See Davidson v. State, 249 S.W.3d 709, 717 n.2 (Tex. App.-Austin 2008, pet. ref'd); Marcum v. State, 983 S.W.2d 762, 767 n.1 (Tex. App.-Houston [14th Dist.] 1998, pet. ref'd); Barnes v. State, 634 S.W.2d 25, 26 (Tex. App.-Beaumont 1982, no pet.).


         Borne argues that the State did not prove that the trial court had "subject matter jurisdiction" over him for numerous reasons. Although Borne presents a multifarious issue, in the interest of justice we address arguments that can be sufficiently identified. See Barnes, 634 S.W.2d at 26.

         "Consent" and "Proven on the Record"

         Borne argues that he did not consent to the trial court's jurisdiction over him and jurisdiction was not proven on the record. Borne presents no legal authority that his consent was required for the district court to have jurisdiction over him in a criminal proceeding, nor does he explain his "proven on the record" complaint. See Tex. R. App. P. 38.1(i).

         The Texas Constitution invests state district courts with "exclusive, appellate, and original jurisdiction of all actions, proceedings, and remedies[.]" See Tex. Const. art. V, § 8. "The presentment of an indictment or information to a court invests the court with jurisdiction of the cause." Id. § 12. A grand jury indicted Borne for an offense under section 481.1121 of the Health and Safety Code. See Tex. Health & Safety Code Ann. § 481.1121. The presentment of the grand jury's indictment invested the district court with subject matter jurisdiction over the case. See Tex. Const. art. V, § 12; see also Thoman v. State, No. 07-11-0278-CR, 2013 Tex.App. LEXIS 4413, at **8-9 (Tex. App.-Amarillo Apr. 4, 2013, pet. ref'd) (mem. op., not designated for publication) (rejecting a similar challenge to the district court's jurisdiction where "the clerk's record contains an information regular on its face . . . [and] [n]othing in the clerk's record suggests the trial court lacked personal or subject matter jurisdiction[.]").We find Borne's argument unavailing.


         Borne argued that the trial court lacked jurisdiction over him because he was a "living breathing, sovereign, flesh and blood man" and not a "Legal Fiction Person[.]" Borne also raises this argument on appeal. Borne filed a "Non-Negotiable Notice of Acceptance" and a "Notice of Dishonor" with the trial court that state:

I, a man called Ethan Watson Borne, reserve all my rights without prejudice UCC 1-103 & 1-308. I am a moral man and a Texas Citizen/National and not a citizen, resident, person, individual or inhabitant of the corporate United States. I am not a creature of THE STATE OF TEXAS, THE UNITED STATES, or any other government.

         Borne also asserted that "The State of Texas is a Fiction" unless the trial court and district attorney could prove otherwise and that he is "a Texas National[.]" In a "Judicial Notice" filed with the trial court, Borne argued that

The "Texas Control Substances Act," which is located in the Texas Health and Safety Code states that statute 481.1121 only applies to a person which is defined as "legal entities" and, as I have stated many times, I am in fact a living man and NOT a legal entity[.]

         During the charge conference at trial, Borne requested that a definition of "person" be added to the jury charge. The court added the definition of "person" that is contained in section 481.002 of the Controlled Substances Act to the charge.[2] Borne agreed on the record to the additional instruction.

         The definition of "person" under the Health and Safety Code includes individuals. Id.; State v. Morello, 547 S.W.3d 881, 886 (Tex. 2018). Because there is no statutory definition excluding individuals from the definition of person, we interpret the term as it applies in common usage-to include individuals. See Morello, 547 S.W.3d at 886. Under the plain language of the Controlled Substances Act, an individual may be charged with a felony for manufacture or delivery of a controlled substance. See Tex. Health & Safety Code Ann. § 481.1121; cf. Morello, 547 S.W.3d at 886. Therefore, Borne's argument lacks merit. UCC

         We understand Borne to argue that, because he signed documents by writing "w/o prej. UCC 1-308[, ]" the trial court lacked jurisdiction over him and the lack of jurisdiction deprived him of due process. Borne filed a document with the trial court styled "Response to and Affidavit of Complaint[, ]" which stated, in relevant part:

The signature on the driver's license is below the words that I wrote in: "Without Prejudice, U.C.C. 1-308." (See Exhibit 1) I signed it this way because I was compelled to get the driver's license by The State of Texas against my will and I wanted to give notice and reserve my right to travel freely and contract with who or ...

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