Florence v. Galveston Police Officer Clemente Garcia III et al

Filing 121

ORDER denying 117 Motion for Leave of Court to Move Court to Take Judicial Notice, Evidence Exhibit in Support of Plaintiffs Rule 59(e) Motion; denying 119 Motion for Leave of Court of File Rule 59(e) Evidence in Support of Court to Amend its Erroneous Judgment and to Order an Injunctive Hearing as Required on the TDCJ-BPP Illegal Issuance of Warrants.(Signed by Magistrate Judge John R Froeschner) Parties notified.(sanderson, 3)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
THOMAS FLORENCE, #1729344
VS.
OFFICER CLEMENTE GARCIA III
and SGT. CHAPMAN

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CIVIL ACTION NO. G-11-134

ORDER
On April 10, 2014, Plaintiff, Thomas Florence, filed a Motion which appears to seek
an Order from this Court amending the Judgment rendered against him in a state court
criminal case and void his conviction because, according to Florence, there was no probable
cause to support his arrest. The Motion seems to rely on Rule 59(e) of the Federal Rules of
Civil Procedure.
This Court has no authority in this civil rights action to examine the basis of
Florence’s arrest or conviction. Moreover, Rule 59(e) has no application to a criminal
proceeding; but even if it did, a Rule 59 (e) Motion must be filed “no later than 28 days after
the entry of judgment.” The only conceivable motion Florence could have filed would have
been a motion to arrest judgment under Rule 34 of the Texas Rules of Criminal Procedure,
but such a Motion had to be filed within 14 days after the judgment and was probably waived,
unless Florence had filed an earlier Motion to Quash the Indictment on the basis now alleged.
See Perez v. State, 590 S.W. 2d 474, 481 (Tex. Cr. App. 1979)

It is, therefore, ORDERED that Florence’s “Motion for Leave of Court of File Rule
59(e) Evidence in Support of Court to Amend its Erroneous Judgment and to Order an
Injunctive Hearing as Required on the TDCJ-BPP Illegal Issuance of Warrants” (Instrument
no. 119) is DENIED.
It is further ORDERED that Florence’s “Motion for Leave of Court to Move Court
to Take Judicial Notice, Evidence Exhibit in Support of Plaintiff’s Rule 59(e) Motion”
(Instrument no. 117) is DENIED.
DONE at Galveston, Texas, this

11th

2

day of April, 2014.