Paselk, Ex Parte Carol

• Court: Court of Appeals of Texas
• Decided: January 30, 2015
• Docket: PD-1465-14
• Status: Published

Opinion

NO. tyts-w IN THE TEXAS COURT OF CRIMINAL APPEALS

JAN 30 2015 CAROL PASELK,

Petitioner

v. FILED IN COURT OF CRIMINAL APPEALS STATE OF TEXAS JANsor:.! Respondent Abel Acosta, Cierk

Amended Petition For Discretionary Review

Petition in Cause No. CV14-08223 From the 8th Judicial District Court of Hopkins County, Texas and The Court of Appeals for the 6th District of Texas

Oral Argument Requested

Carol Paselk

Pro Se Appellant P.O. Box 1284 Emory, Texas 75440 (940) 435-3210

Petition For Discretionary Review page 1 of27 pages NO.

IN THE TEXAS COURT OF CRIMINAL APPEALS

CAROL PASELK,

v.

STATE OF TEXAS

Respondent

Petition in Cause No. CV14-08223 From the 8th Judicial District Court of Hopkins County, Texas and The Court of Appeals for the 6th District of Texas

Pro Se Appellant P.O. Box 1284 Emory, Texas 75440 (940) 435-3210

Petition For Discretionary Review page I of27pages Table of Contents

Table of Contents 2

Index ofAuthorities 3

Immediate Release Requested From Already Null And Void Judgments 10 Statement Regarding Oral Argument 11 Statement of the Case 11

Statement of Procedural History 12 Reasons For Review 12

I. The Appellate Court erred in not considering that the Texas Legislature has excluded the "Judge" of the Hopkins County Court At Law from presiding over allegations of cruelty to a livestock animal. Tex. R.App.P. 66.3(b), making the judgments of conviction already null and void.

II. The Court ofAppeals failed to consider important questions of state law that have not been, but should be, settled by this Court. Tex.R.App. P. 66.3(b) III. The Court ofAppeal failed to consider important questions of state and federal law in conflict with applicable decisions of the Supreme Court of the United States. Tex.R.App. P. 66.3(c) IV The Appellate Court erred in not considering the fact that inadmissible evidence was admitted by the trial court.

Conclusion 26

Prayer For Relief 27 Certificate of Compliance 28 Certificate of Service 28

APPENDIX:

APPENDIX A: Photos of Hay and Feed Purchased and Fed APPENDIX B: Photos of Horses

APPENDIX C: Court Transcript Pages of Testimony APPENDIX D: Memorandum Opinion of the 6th District Court of Appeals

Petition For Discretionary Review page 2 of2 7pages INDEX OF AUTHORITIES

CASE LAW:

Texas Cases:

Bass v. State, 427 S.W.2d 624, 626 (Tex.Cr.App.1968) Billings v. Atkinson, 489 S.W.2d 858, 859 (Tex. 1973.) Boykin v. State, 818 S.W.2d 782, 785 (Tex.Cr.App. 1991) Bragg v. State, 109 Tex.Cr.R. 632, 6 S.W.2d 365 (1928) Camacho v. Samaniego, 831 S.W.2d 804, 811 (Tex. 1992). Cleveland v. Ward, 116 Tex. 1, 285 S.W. 1063 (1926) Ex parte Adams, 768 S.W.2d 281, 293 (Tex. Crim. App. 1989) Ex parte Armstrong, 110 Tex.Cr.R. 362, 8 S.W.2d 674, 675, 676 (1928)

Exparte Beck, 922 S.W.2d 181 (Tex.Crim. App. 1996) Ex parte Caldwell, 383 S.W.2d 587, 589 (Tex.Cr.App. 1964) Ex parte Drake, 883 S.W.2d 213, 215 (Tex.Crim.App.1994) Ex parte Paprskar, 573 S.W.2d 525 (Tex.Cr.App. 1978) Ex parte Sandoval Ex parte Seidel, 39 S.W.3d 221, 224, 225 at n. 4 (Tex.Crim.App.2001). Ex parte Vasquez, 122 Tex.Cr.R. 475, 56 S.W.2d 190 (1933) Garcia v. Dial, 596 S.W.2d 524 (Tex.Cr.App. 1980) Gill v. Snow, 644 S.W.2d 222, 224 (Tex. App. 1982, no writ) Glenn v. Dallas County Bois D'Arc Island Levee Dist., 282 S.W. 339 (Tex.Civ.App.1926) Granger v. Folk, 931 SW 2d 390, Tex: Court ofAppeals, 9th Dist. (1996) IndustrialFoundation of The South v. Texas IndustrialAccident Board, 540, S.W.2d 668, 682 (Tex. 1976) Marin v. State, 851 S.W.2d 275, 280 (Tex.Crim.App.1993) Moore v. State, 821 S.W.2d 429, 431 (Tex.App.—Waco 1991, no pet);

Petition For Discretionary Review page 3 of27 pages Mx v. State, 65 S.W3d 664, 673, (Tex.Crim.App.2001) Parrv. State, 108 Tex.Cr.R. 551, 1 S.W2d 892 (1928) Solon v. State, 5 Tex.App. 301 (1878) State v. Roberts, 940 SW 2d 655 - Tex: Court of Criminal Appeals 1996 Stine v. State, 908 SW 2d 429 - Tex: Court of Criminal Appeals 1995 Stoker v. State, 788 S.W.2d 1, 10 (Tex.Crim.App.1989) Walker v Packer, 827 S.W.2d 833, 840 (Tex. 1992). Woodardv. State, 86 Tex.Cr.R. 632, 218 S.W 760 (1920)

United States:

Griswald v. Conneticut, 381 U.S. 479 (1965) Kinnardv. U.S., 313 F.3d 933, 2002 FED App. 0427P (6th Cir. 2002) Klugh v. U.S., 620 F.Supp. 892 (D.S.C. 1985) Mapp v. Ohio, 367 U. S. 643 (1961) Moore v. Illinois, 408 U. S. 786, 810 (1972) (opinion of MARSHALL, J.) Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) United States v. San Filippo, 564 F.2d 176, 178 (5th Cir. 1977) Valley v. Northern Fire & Marine Ins. Co., 254 U.S. 348, 41 S.Ct. 116 (1920) Wiggins V.Smith, 539 U.S. 510, 123 S. Ct. 2527, 156 L. Ed. 2d 471 (2003) Yarborough v. Gentry, 540 U.S. 1, 124 S. Ct. 1, 157 L. Ed. 2d 1 (2003)

Michigan: Fritts v. Krugh, 92 N.W.2d 604, 354 S.Ct. of Mich. 97. (1958).

Oregon: State ofOregon v. Amanda Newcomb, Multnomah County Circuit Court, 110443303, A149495 (2014)

Petition For Discretionary Review page 4 of27pages Constitution:

United States Constitution: Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments Article 1, Section 9 of the Texas Constitution

Article 1, Section 10 of the Texas Constitution

Article 1, Section 12 of the Texas Constitution

Article 1, Section 14 of the Texas Constitution

Article 1, Section 19 of the Texas Constitution

Article 5, Section 19 of the Texas Constitution

Statutes and Rules:

Texas Code of Criminal Procedure §18.10, §18.11 Texas Government Code § 25.1142

Texas Health & Safety Code § 821.0211 Texas Penal Code § 42.09 Texas Rules of Appellate Procedure, 66.3(b)(c)

Fed. Rules Civ. Proc, Rule 60(b)(4),

Petition For Discretionary Review page 5 of27pages IMMEDIATE RELEASE REQUESTED FROM ALREADY NULL AND VOID JUDGMENTS

Petitioner Carol Paselk contends that the judgments of conviction against

her are already null and void.

"Habeas corpus is reserved for those instances in which there is a

jurisdictional defect in the trial court which renders the judgment void or

for denials of fundamental or constitutional rights)." Ex parte Drake, 883

S.W.2d 213. 215 (Tex.Crim.App.1994)

"The writ of habeas corpus, for example, is available to set aside a

criminal conviction on the basis of any jurisdictional defect in the

proceedings which led to it, no matter how remote in time." Stine v.

State. 908 SW 2d 429 - Tex: Court of Criminal Appeals 1995.

"This Court has long held that habeas corpus is an appropriate remedy to

attack a void judgment or sentence." See Ex parte Seidel, 39 S.W.3d 221,

224, 225 at n. 4 (Tex.Crim.App.200n; Ex parte Beck 922 S.W.2d 181

(Tex.Crim. App. 1996);

Petition For Discretionary Review page 6 of27pages STATEMENT REGARDING ORAL ARGUMENT

Petitioner requests oral argument. Argument would assist the Court because

resolution of the grounds for review depends upon a detailed exploration of the facts of

the cases. Further, oral argument would provide this Court with an opportunity to

question parties regarding their positions.

STATEMENT OF THE CASE:

Petitioner's Petition For Writ of Habeas Corpus was denied by the 8th Judicial

District Court without a hearing. The Court of appeals upheld the denial. Petitioner

contends that the judgments of conviction are already null and void. According to

Texas Health & Safety Code § 821.0211, the particular "Judge", who issued the

judgments of conviction, is lawfully excluded by the Legislature from presiding over

allegations of cruelty to a livestock animal. As a result of the Legislature's exclusion of

this particular "Judge" to preside over allegations of cruelty to a livestock animal, the

Judgments of conviction are already null and void, for lack ofjurisdiction. The 6th

District Court ofAppeals did NOT consider or even comment on the fact that this

particular "Judge", of the Hopkins County Court At Law, is excluded by the

Legislature from presiding over allegations of cruelty to a livestock animal, because she

"gives preference to family law matters.'''

Beyond the fact that this "Judge" of the Hopkins County Court At Law is

Petition For Discretionary Review page 7 of27pages excluded by the Legislature from presiding over allegations of cruelty to a livestock

animal, the 6th Court ofAppeals failed to consider the ineffective assistance of both the

court appointed defense and appeal counsel, and that the "Judge" of the Hopkins

County Court At Law also allowed inadmissible evidence and hearsay to be used to

obtain conviction against Petitioner Paselk.

STATEMENT OF PROCEDURAL HISTORY

The judgments of conviction were entered on October 29, 2009.

Petitioner filed a Petition For Habeas Corpus with the 8th Judicial District Court on April

18,2014. The 8th Judicial District Court denied Paselk's Petition For Writ of Habeas

Corpus without a hearing. Petitioner Paselk mailed her Appellant's Amended Brief to

the 6th District Court ofAppeals in Texarkana on July 25, 2014. The Court ofAppeals

denied Paselk's Petition For Writ of Habeas Corpus, even though the judgments of

conviction are already null & void.

REASONS FOR REVIEW

The 6th Court ofAppeals failed to consider that the misdemeanor convictions

against this Petitioner are already null and void because the "Judge" of the Hopkins

County Court At Law is excluded by the Legislature from presiding over allegations of

cruelty to a livestock animal. The 6th Court of Appeals failed to consider that

Petition For Discretionary Review page 8 of2 7pages inadmissible evidence and hearsay were used to obtain convictions against this

Petitioner. The 6th Court of Appeals failed to consider that convictions against

Petitioner Paselk were obtained because of the ineffective assistance of counsel. The 6th

Court of appeals did not discharge its sworn duty to defend and uphold the rights of this

Petitioner protected and guaranteed by the U.S. Constitution, and the Texas Constitution.

1. The Appellate Court erred in not considering that the Texas Legislature has lawfully excluded the "Judge" of the Hopkins County Court At Law from presiding over allegations of cruelty to a livestock animal. Tex. R.App.P. 66.3(b)

2. The Court ofAppeals failed to consider important questions of state law that have not been, but should be, settled by this Court. Tex.R.App. P. 66.3(b)

3. The Court ofAppeals failed to consider important questions of state and federal law in conflict with applicable decisions of the Supreme Court of the United States. Tex.R.App. P. 66.3(c)

4. The Appellate Court erred in not considering the fact that because of ineffective assistance of council, exculpatory evidence was not presented to the jury and court, and inadmissible evidence was admitted by the court.

I. The Appellate Court erred in not considering that the Texas Legislature has

excluded the "Judge" of the Hopkins County Court At Law from presiding over

allegations of cruelty to a livestock animal. Tex. R.App.P. 66.3(b), making the

Petition For Discretionary Review page 9 of27pages judgments of conviction already null and void.

The Court ofAppeals failed to consider that the judgments of conviction against

Petitioner Paselk are already null and void because the "Judge" of the Hopkins County

Court At Law is excluded by the Legislature from presiding over allegations of cruelty

to a livestock animal. This case confirms the Texas Supreme Court's statement:

"This Court has previously voiced its concerns over the difficulties created for the bench, the bar, and thepublic by thepatchwork organization of Texas' several trial courts. As Thomas Paine observed: "[T]he more simple anything is, the less liable it is to be disordered, and the easier repaired when disordered. Paine, Common Sense 3 (1776). This case is yet another confirmation that "confusion and inefficiency are endemic to a judicial structure with different courts ofdistinct but overlappingjurisdiction." Camachov. Samanieso. 831 S.W2d 804, 811 (Tex.1992).

The Court ofAppeals failed to consider that the judgments of conviction against

Petitioner Paselk are already null and void because the "Judge" of the Hopkins County

Court At Law is excluded by the Legislature from presiding over allegations of cruelty

to a livestock animal. Texas Government Code § 25.1142 gives the Judge of the

Hopkins County Court At Law the same jurisdiction and authority as a District Court

Judge. The "Judge" of the Hopkins County Court At Law "gives preference tofamily

law matters," by agreement with the Judges of the 8th Judicial District Court1 and the

1 Texas Government Code § 24.108. 8TH JUDICIAL DISTRICT (DELTA, FRANKLIN, HOPKINS, AND RAINS COUNTIES), (a) The 8th Judicial District is composed of Delta, Franklin, Hopkins, and Rains counties.

Petition For Discretionary Review page 10 of27pages 62nd District Court2. Texas Health & Safety Code § 821.0211 excludes Judges "who

give preference tofamily law matters", which is clearly a protection and safeguard for

livestock owners, codified by the Legislature. Texas Health & Safety Code, Chapter

821, Subchapter B, Section 821.0211 ADDITIONAL DEFINITION,3 clearly excludes

"district courtjudges who give preference tofamily law matters" from presiding over

matters of cruelty to livestock animals. There is no ambiguity in the language codified

by the Legislature. "If a statute is clear and unambiguous, we give effect to its plain

meaning." Bovkin v. State, 818 S.W2d 782, 785 (Tex.Cr.App. 19911

In Granger v. Folk, 931 SW 2d 390, Tex: Court ofAppeals, 9th Dist. (1996), the

Texas Court ofAppeals shows the union of Texas Health & Safety Code § 821 and

Texas Penal Code § 42.09, stating:

"Clearly, two avenues existfor the State in protecting animals from cruel treatment, i.e., criminal prosecution under Section 42.11 ofthe Penal Code and the civil remedyprovided under Section 821.023 ofthe Health and Safety Code. A close reading ofparagraphs (a) and (b) ofSection 821.023 may provide some slight illumination. Paragraph (a) presumes a criminal proceeding prior to the civil proceeding while paragraph (b)presumes the reverse. Obviously, in the criminal proceeding, a defendant mayface loss of

2 TEXAS GOVERNMENT CODE § 24.164. 62ND JUDICIAL DISTRICT (DELTA, FRANKLIN, HOPKINS, AND LAMAR COUNTIES), (a) The 62nd Judicial District is composed of Delta, Franklin, Hopkins, and Lamar counties.

3 Texas Government Code § 821.0211. ADDITIONAL DEFINITION. In this subchapter, "magistrate" means any officer as defined in Article 2.09, Code of Criminal Procedure, except that the term does not include justices of the supreme court, judges of the court of criminal appeals, or courts of appeals, judges or associate judges of statutory probate courts, or judges or associatejudges of district courts that give preference to family law matters or family district courts under Subchapter D, Chapter 24, Government Code.

Petition For Discretionary Review page 11 of27pages freedom orfine or both, whereas, a proceeding under Section 821.023 may subject the defendant to a loss, forfeiture and confiscation ofproperty rights and interests. In either case, the defendant is entitled by right to all those guarantees offordingfull due process. " [Petitioner contends that 42. II4 refers to "destruction oftheflag", and is a typographical error which is actually meant as 42.09.]

The "Judge" of the Hopkins County Court At Law had the duty and responsibility

to transfer the case against this Petitioner to one of the two District Courts or even to the

County Court, all of which do NOT "give preference tofamily law matters", and thereby

have constitutional and statutory jurisdiction provided by the Legislature to preside over

allegations of cruelty to a livestock animal. "Trial court jurisdiction over a case is an

absolute systemic requirement." Marin v. State, 851 S.W.2d 275, 280

(Tex.Crim.App. 1993). "Unless the power or authority of a court to perform a

contemplated act can be found in the Constitution or laws enacted thereunder, it is

without jurisdiction and its acts without validity." Ex parte Armstrong, 110 Tex.Cr.R.

362, 8 S.W.2d 674. 675, 676 (1928), See also Solon v. State. 5 Tex.App. 301 (1878).

The Court ofAppeals failed to consider that the "Judge" of the Hopkins County

Court At Law is excluded by the Legislature from presiding over allegations of cruelty

to a livestock animal. A threshold issue in any case is whether the court has the

4 Texas Penal Code, Sec. 42.11. DESTRUCTION OF FLAG, (a) A person commits an offense if the person intentionally or knowingly damages, defaces, mutilates, or burns the flag of the United States or the State of Texas.

Petition For Discretionary Review page 12 of27pages jurisdiction to resolve the pending controversy. In Ex parte Armstrong, 110 Tex.Crim.

362, 8 S.W2d 674 (App. 1928), the Court upheld, "... This issue ofjurisdiction is

fundamental and cannot be ignored. Accordingly, a court may sua sponte address the

issue because subject matter jurisdiction cannot be conferred by agreement of the

parties; jurisdiction must be vested in a court by constitution or statute. Garcia v. Dial,

596 S.W2d 524, 527 (Tex.Cr.App. 1980): and, Ex parte Caldwell. 383 S.W.2d 587, 589

(Tex.Cr.App. 1964). In short, each court has jurisdiction to determine whether it has

jurisdiction. Ex parte Paprskar, 573 S.W2d 525 (Tex.Cr.App. 1978).

The Court ofAppeals failed to consider that the "Judge" of the Hopkins County

Court At Law clearly abused her discretion by presiding over the trial against this

Petitioner for allegations of cruelty to a livestock animal, for which she is excluded by

the Legislature. "An abuse of discretion occurs if the trial court clearly failed to analyze

or apply the law correctly." Walker v Packer, 827 S.W2d 833, 840 (Tex. 1992).

The Court ofAppeals failed to consider that Petitioner was denied the protection

and safeguard that the Legislature codified under § 821.0211, excluding judges "who

give preference tofamily law matters", to insure the fair administration of justice, and to

insure a fair and impartial tribunal. This Petitioner was denied her guaranteed rights to

lawful due process of law protected by the Fifth and Fourteenth Amendments of the

United States Constitution, as well as Article 1, Section 19 of the Texas Constitution.

The "Judge" of the Hopkins County Court At Law is excluded by the Legislature from

Petition For Discretionary Review page 13 of27pages issuing judgments of conviction in matters alleging animal cruelty because she gives

"preference to family law matters", therefore the judgments of conviction against this

Petitioner are already null and void, and must be reversed and vacated.

II. The Court of Appeals failed to consider important questions of state law that

have not been, but should be, settled by this Court. Tex.R.App. P. 66.3(b)

As clearly shown above, this Honorable Court must decide a very important

question of state law that was not settled by the Court ofAppeals. This Court must settle

the question whether the "Judge" of Hopkins County Court At Law is excluded from

presiding over allegations of cruelty to a livestock animal. This Court must settle the

question whether the judgments of conviction against this Petitioner are already null and

void for lack of the "Judge's" subject matter jurisdiction.

According to Texas Health & Safety Code 821.0211, the "Judge" of the Hopkins

County Court At Law, who gives "preference tofamily law matters" by agreement with

the Judges of the 8th and 62nd Judicial District Courts, is excluded by the Legislature

from presiding over allegations of animal cruelty.

The question of the jurisdiction of the convicting court may be raised at any time.

See Bass v. State, All S.W2d 624, 626 (Tex.Cr.App. 1968); Ex parte Vasquez. 122

Tex.Cr.R. 475, 56 S.W2d 190 (1933); Bra22v. State. 109 Tex.Cr.R. 632, 6 S.W2d 365

(1928); Parrv. State. 108 Tex.Cr.R. 551, 1 S.W.2d 892 (1928); Woodardv. State, 86

Petition For Discretionary Review page 14 of27pages Tex.Cr.R. 632, 218 S.W 760 (1920). "Judicial action without jurisdiction is void."

Cleveland v. Ward. 116 Tex. 1, 285 S.W 1063 (1926). "Judgment which court is without

jurisdiction to render is void." Glenn v. Dallas County Bois D'Arc Island Levee Dist..

282 S.W 339 (Tex.Civ.App.1926).

"Void" convictions should be defined as those in which the trial court lacked

jurisdiction over the person or subject matter or in which the trial judge lacked

qualification to act in any manner. See, e.g., Ex parte Seidel, 39 S.W.3d 221, 226-27

(Tex.Crim.App.2001) (Womack, J., dissenting, joined by Keller, P.J. & Meyers, J.). See

also Nix v. State. 65 S.W3d 664, 673, (Tex.Crim.App.2001) (discussing "void"

judgments and categorizing them in a "nearly exclusive" list as: "(1) the document

purporting to be a charging instrument (i.e. indictment, information, or complaint) does

not satisfy the constitutional requisites of a charging instrument thus the trial court has

no jurisdiction over the defendant; (2) the trial court lacks subject matter jurisdiction

over the offense charged, such as when a misdemeanor involving official misconduct is

tried in a county court at law; (3) the record reflects that there is no evidence to support

the conviction; or (4) an indigent defendant is required to face criminal trial proceedings

without appointed counsel, when such has not been waived, in violation of Gideon v.

Wainwrighf) (footnotes omitted).

"Jurisdiction may be concisely stated to be the right to adjudicate concerning the

subject matter in a given case. [Citation omitted] Unless the power or authority of a

Petition For Discretionary Review page 15 of27pages court to perform a contemplated act can be found in the Constitution or laws enacted

thereunder, it is without jurisdiction and its acts without validity." Ex parte Armstrong,

110 Tex.Cr.R. 362, 8 S.W2d 674, 675, 676 (1928), "Jurisdiction of the subject matter

cannot be conferred by agreement; this type ofjurisdiction exists by reason of the

authority vested in the court by the Constitution and statutes. Ex parte Caldwell, 383

S.W2d 587 (1964); Morrow v. Corbin. 122 Tex. 553, 62 S.W2d 641 (1933); Ex parte

Armstrong, supra.

"Furthermore, it is likewise axiomatic that where there is no jurisdiction, the

power of the court to act is as absent as if it did not exist," Ex parte Caldwell, supra at

589, and any order entered by a court having no jurisdiction is void. E. g., Ex parte

Sandoval, supra; Ex parte Armstrong, supra. "Judgment is a void judgment if court that

rendered judgment lacked jurisdiction of the subject matter, or of the parties, or acted in

a manner inconsistent with due process," Fed. Rules Civ. Proc, Rule 60(b)(4), 28

U.S.C.A., U.S.C.A. Const. Amend. 5 - Kluzh v. U.S., 620 F.Supp. 892 (D.S.C. 1985).

"A void judgment, order or decree may be attacked at any time or in any court, either

directly or collaterally" - The law is well-settled that a void order or judgment is void

even before reversal. Valley v. Northern Fire & Marine Ins. Co., 254 U.S. 348, 41 S.Ct.

116(1920).

"A "void judgment" as we all know, grounds no rights, forms no defense to

actions taken there under, and is vulnerable to any manner of collateral attack (thus here,

Petition For Discretionary Review page 16 of27pages by). No statute of limitations or repose runs on its holdings, the matters thought to be

settled thereby are not res judicata, and years later, when the memories may have grown

dim and rights long been regarded as vested, any disgruntled litigant may reopen the old

wound and once more probe its depths. And it is then as though trial and adjudication

had never been." Fritts v. Krugh. 92 N.W.2d 604, 354 S.Ct. of Mich. 97. (1958).

Case law from Federal and state courts all clearly show that the judgments of

conviction against this Petitioner are already null and void, because the Legislature has

excluded this particular "Judge" who did not have the jurisdiction to preside over the

trial against this Petitioner.

III. The Court of Appeals failed to consider important questions of state and

federal law in conflict with applicable decisions of the Supreme Court of the United

States. Tex.R.App. P. 66.3(c)

As shown above, the Court ofAppeals failed to consider that Petitioner Paselk's

rights to lawful due process, guaranteed and protected by the 5th and 14th Amendments of

the U.S. Constitution, have been seriously compromised as a result of the trial court's

judgment of conviction against this Petitioner.

I. The Court ofAppeals failed to consider that the Warrant For Animal Seizure is

nothing more than a "General Warrant" which has been prohibited and outlawed by the

4th Amendment for over two hundred years.(C.R. pgs. 73-74) The Warrant violates

Petition For Discretionary Review page 17 of27pages Petitioner Paselk's Constitutional, as well as statutory, rights and protections. (C.R. pgs.

73-74) The Warrant fails to name Thoroughbred horses, and geldings with were simply

taken from Paselk's farm, and does NOT particularly describe any individual horse or

location on the farm where any particular horse would be found. The Warrant violates

Petitioner's rights to be free from unreasonable searches and seizures protected by the 4th

Amendment of the U.S. Constitution and Article 1, Section 9 of the Texas Constitution,

as well as directives for a lawful warrant found in Texas Code of Criminal Procedure,

Chapter 18. Because the warrant is an outlawed and prohibited "general warrant" there

is no admissible evidence.

Photos taken six days AFTER the entire herd of horses were taken, show horses in

good condition were taken with the "general warrant." (C.R. pgs. 77-82) (APPENDIX

B) Nothing on the Warrant describes any particular horse. This means that no

particular horse was the subject of the seizure, but rather law enforcement and County

Attorney Dustanna Rabe picked through the entire herd of horses AFTER they were

taken from Petitioner's farm, and AFTER these horses were subject to mishandling, and

intentional alteration of their condition. No Veterinary evaluation was done of any horse

BEFORE they were taken from the farm to establish the true condition of any horse

BEFORE it was taken.

II. The Court ofAppeals failed to consider that Testimony from State's

witnesses Sgt. Tanner Crump, Melanie DeAeth, Pamela Dountas, and Chief Deputy

Petition For Discretionary Review page 18 of27pages Ricky Morgan actually exonerates Petitioner Paselk from any allegations of cruelty to a

livestock animal.

After spending an hour and a half inspecting Paselk's farm and horses, Hopkins

County Sheriff Department Sgt. Tanner Crump filed his official eyewitness report,

stating "I do not feel that the horses are in need of immediate care or removal from

the owner", (C.R. pg. 72) Crump further stated, "Not all of the horses were

poor...Most of the horses that were poor were older horses and it is expected that

they would not look as good as horses that were younger."(C.R. pg. 72)

Six days later, with no further investigation and no contact with Paselk, Crump to

filed his "Application For Warrant To Seize Animals" the language of which is in

complete conflict with his official eyewitness report.(C.R. pgs. 73) Crump testified the

reason he made the complete reversal of statements is because of second hand

statements he received from Lt. Henry Turner that the "rescues" were withdrawing their

support. Court Appointed Defense Counsel, Steve Lilley, failed to show the jury that

there was no possible way the "rescues" could be withdrawing their support, because

their testimony verified they gave only a very minimal "one time" during a four month

period, verifying the State's witnesses were lying. See sworn testimony in Clerk's

Record, pgs. 56-60 and Letters of Support, Clerks Record, pgs. 113-119. (SEE

APPENDIX C for copies of the official court transcript pages.) (SEE ALSO

APPENDIX A) "If the state knowingly presented perjured testimony, a writ

Petition For Discretionary Review page 19 of27pages application can be granted." Exparte Adams, 768 S.W2d 281, 293 (Tex. Crim. App.

1989). "Due process is violated when the prosecutor although not soliciting false

evidence from a government witness, allows it to stand uncorrected when it appears".

United States v. San Filippo, 564 F.2d 176, 178 (5th Cir. 1977)

One of the most basic elements of fairness in a criminal trial is that available

evidence tending to show innocence, as well as that tending to show guilt, be fully aired

before the jury; more particularly, it is that the State in its zeal to convict a defendant not

suppress evidence that might exonerate him." See Moore v. Illinois, 408 U. S. 786, 810

(1972) (opinion of MARSHALL, J.). Throughout the trial, County Attorney Dustanna

Rabe erroneously continued to make the jury believe that the "rescuers" had been

supporting Paselk and feeding her horses for a long period of time. Lilley failed to

object. Lilley failed to show the jury the TRUTH that the "rescues" were not

"supporting" Paselk. Lilley failed to show the jury photos of hay purchased by Paselk.

(SEE APPENDIX A) The TRUTH would have induced a reasonable doubt in the

minds of the jurors to avoid conviction. Paselk had a Constitutionally protected right to

a fair and impartial trial and these photos should have been shown to the jury.

III. The Court ofAppeals also failed to consider that the judgments of

conviction against Paselk were obtained as a result of serious "ineffective assistance of

counsel". Paselk directs the Court to pgs. 36-61 of the Clerk's Record for a more

indepth assessment of the ineffective assistance of counsel. Paselk's court appointed

Petition For Discretionary Review page 20 of27pages defense counsel, Steve Lilley, and court appointed "appeals" counsel Gene Stump, both

made errors so serious that they were not functioning as the "counsel" guaranteed by the

Sixth Amendment", Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed.

2d 674 CI 984); Kinnardv. US., 313 F.3d 933, 2002 FED App. 0427P (61" Cir. 2002),

"and did not provide reasonably effective assistance," Strickland v. Washington. 466

U.S. 668. 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); "and in that counsel's performance

fell below an objective standard of reasonableness" Wiggins v. Smith, 539 U.S. 510, 123

S. Ct. 2527. 156 L. Ed. 2d 471 (2003); Yarborough v. Gentry. 540 U.S. 1, 124 S. Ct. 1,

157 L. Ed. 2d 1 (2003); Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L.

Ed. 2d 674 CI 984);

IV. The Appellate Court erred in not considering the fact that inadmissible

evidence was admitted by the trial court.

A fact that this honorable Court must consider before making any decision to

grant or deny this Petitioner's Petition For Writ of Habeas Corpus is shown above in the

contradictions of the testimony of four of the states witnesses under oath - Melanie

DeAeth, Pamela Dountas, Sgt. Tanner Crump and Chief Deputy Ricky Morgan - which

exonerates Petitioner Paselk.

The Court of Appeals failed to consider that inadmissible evidence obtained

through warrantless searchwas used against this Petitioner, in violation of her right to

Petition For Discretionary Review page 21 of27pages privacy protected by the 14th Amendment. In Mapp v. Ohio, 367 U. S. 643 (1961), the

Supreme Court held that evidence collected from an unlawful search be excluded from

trial. The trial court "Judge" allowed as evidence blood and fecal samples that were

"supposedly" obtained from horses "allegedly" taken from Paselk's farm property.

There was NO lawful chain of custody of any of the "horses". No Veterinarian

was on-site to professionally evaluate any of the horses BEFORE they were taken from

the farm, therefore no "Beginning Chain of Custody" was ever established. "Proof of

the beginning and the end of the chain will support admission of the evidence barring

any showing of tampering or alteration." Stoker v. StateJSS S.W2d 1, 10 (1989).

Without the establishment of the original condition of any of the horses BEFORE they

were taken from the farm there is no possible way to prove that the horse were not

subjected to the intentional tampering with their condition and the alteration of their

condition AFTER they were removed from Paselk's farm.

There was No control of the horses (the evidence) by either law enforcement or

the court over the safe keeping of any of the horses taken from Paselk's farm, in

violation of TCCP 18.10 and 18.11. The so called blood and fecal "samples" were

authorized solely by private citizens, who had immediately removed horses, taken from

Paselk's property, outside of the jurisdiction of Hopkins County without any Court order

authorizing the removal and without any court order directing the manner of safe

keeping for any of the horses.(TCCP 18.10 & 18.11) These private citizens had NO

Petition For Discretionary Review page 22 of2 7pages court order or lawful authority to invade the body of any horse allegedly taken from

Paselk's property and then conduct any "search and seizure" of any blood or fecal

sample.

This issue of the right to privacy was addressed in State ofOregon v. Amanda

Newcomb, Multnomah County Circuit Court, 110443303, A149495 (2014). The Texas

Court ofAppeals upheld the 8th Judicial District Court's denial of the Oregon Court of

Appeal decision stating: "The Oregon case has no prededential value or effecdt on

Petitioner's convictions..." Both the 8th Judicial District Court and the 6th District Court

ofAppeals failed to consider that the blood and fecal samples used against this Petitioner

were NOT obtained in any lawful manner, and violated this Petioner's right to Privacy

protected and guaranteed by the United States Constitution.

The Oregon case shows the very overt violation of Paselk's right to privacy. In

Billinzs v. Atkinson, 489 S.W2d 858, 859 (Tex. 1973), "This right to privacy is so

important that the United States Supreme Court has repeatedly deemed it to stem

implicitly from the Bill of Rights. Our State courts have long recognized a civil cause of

action for the invasion of the right to privacy and have defined such an invasion in many

ways: As an intentional intrusion upon the solitude or seclusion of another that is highly

offensive to a reasonable person, Gill v. Snow, 644 S.W2d 222, 224 (Tex.App.—Ft.

Worth 1982, no writ); and as the right to be free from the wrongful intrusion into one's

private activities in such manner as to outrage or cause mental suffering, shame or

Petition For Discretionary Review page 23 of27pages humiliation to a person of ordinary sensibilities, Industrial Foundation ofthe South v.

Texas Industrial Accident Board, 540 S.W.2d 668, 682 (Tex. 1976); Billings v. Atkinson,

supra, at 859.

In Griswoldv. Connecticut, 381 U.S. 479 (1965),, Justice Douglas articulated that

although not explicit, the penumbras of the Bill of Rights contained a fundamental "right

to privacy" that was protected by the 14th Amendment's Due Process Clause.

Griswold's "right to privacy" has been applied to many other controversial decisions

such as Eisenstadt and Roe v. Wade.

Paselk's right to privacy was invaded by private citizens who had no court

authorized authority to invade the bodies of horses taken from her farm and collect any

blood or fecal samples. Without court authorization, any blood and fecal samples

collected by private citizens in these unwarranted searches and seizures are not

admissible as evidence. "Under our law, evidence is illegally secured if it is obtained in

violation of the Constitution or laws of the United States or the Constitution or laws of

the State of Texas. Tex.Code Crim.Pree. Art. 38.23." State v. Roberts. 940 SW 2d 655 -

Tex: Court of Criminal Appeals 1996.

Thus, Paselk's convictions, obtained by use of inadmissible evidence which was

obtained thru the use of these unauthorized and unwarranted searches and seizures,

conducted by unauthorized private citizens, are already null and void.

Petition For Discretionary Review page 24 of27pages CONCLUSION

The Appellate Court erred in not considering that the convictions against

Petitioner Paselk are already null and void because:

1. The "Judge" of the Hopkins County Court At Law is excluded by the

Legislature from presiding over allegations of cruelty to a livestock animal;

2. the Judge allowed inadmissible evidence obtained through unauthorized,

warrantless search and seizure, conducted by private citizens who had no court

authorized permission or authority, at trial to be used against this Petitioner, and

in violation of her rights to lawful due process and protections of her rights to

privacy.

The Court ofAppeals also failed to consider that the judgments of conviction against

this Petitioner were obtained using interpretation of state law which violate applicable

decision of the Supreme Court of the United States. Finally, the Court ofAppeals failed

to consider important questions of state law that have not been, but should be, settled by

this Court.

Petition For Discretionary Review page 25 of27 pages PRAYER

This Petitioner prays that this honorable Court will grant her Petitioner For Writ

of Habeas Corpus. This Petitioner prays that this honorable Court will find that the

"Judge" of the Hopkins County Court At Law is excluded by the Legislature from

presiding over allegations of cruelty to a livestock animal. This Petitioner prays that this

Court will finally settle the question of law whether the "Judge" of the Hopkins County

Court At Law is excluded by the Legislature from presiding over allegations of cruelty

to a livestock animal because this particular "Judge" "gives preference tofamily law

matters." This Petitioner prays this Court will find that the judgments of conviction

against this Petitioner were obtained using inadmissible evidence, and that this Petitioner

did not receive the "effective assistance" of counsel at trial and in appeal guaranteed by

the Constitution. Petitioner prays that this Court will find that the judgments of

conviction against Petitioner Paselk are already null and void, and that they be

overturned.

Respectfully Submitted,

Carol Paselk, Pro Se Petitioner P.O. Box 1284 Emory, Texas 75440 (940)435-3210

Petition For Discretionary Review page 26 of27pages CERTIFICATE OF COMPLIANCE

Pursuant to TRAP Rule 9.4(i)(3), in making this Certificate of Compliance, I am relying on the word count provided by the Libre Office 4.2.5.2 computer software used to prepare this document. In compliance with TRAP Rule 9.4(i)(2)(B), according to the Libre Office word-count function, this Amended Petition For Review, contains 6,108 words. In compliance with TRAP 9.4(e), the typeface used in this Brief is no smaller than 14-point, except for footnotes, which are no smaller than 12-point.

Carol Paselk, Pro Se Appellant P.O. Box 1284 Emory, Texas 75440

CERTIFICATE OF SERVICE

I certify that a true and correct copy of the foregoing "Petition For Discretionary Review" has been mailed via United States Postal Service mail to William Ramsay, Appellate Counsel for the/State of Texas, 110 Main Street, Sulphur Springs, TX 75482, on the /<5^ day of ^^^Y/My/, 20]

Carol Paselk, Pro Se Appellant P.O. Box 1284 Emory, Texas 75440

Petition For Discretionary Review page 27 of27 pages APPENDIX A APPENDIX A - hay on hand

On Sunday, May 3, 2009, there were over 80 bales of hay in the barn. On Saturday, May 9, 2009, on the day of the seizure there were ten bales of hay in the barn. Another 80 bales were scheduled to be picked up on Sunday morning. This photo shows the "mess" that the rescuers left the barn in. They tore open hay bales and scattered hay all over the inside of the barn and all over the alleys between the stalls and pens, leaving a huge mess. They destroyed a huge, almost brand new, industrial size barn fan, and marked the walls of the barn with their marking "crayons". They broke the hinges off one of the gates, when there was NO reason to have done so. They left cigarette butts everywhere. They had NO respect for anything on the property. Melanie DeAeth testified that the horses in pasture were okay. "Rescuers" left the barn a mess. They tore open hay bales and hay was strewn everywhere. Another 80 bales of hay was scheduled to be picked up the next morning - Sunday morning, May 10, 2009. On Saturday, May 9, 2009, at the time the "rescuers" stole the horses, there were fourteen 501b. bags of 14% pellets in the feed room that had been purchased the night before - receipt of which was provided as evidence in court. There was approximately 20 pounds of a twenty five pound bag of Cal Manna supplement. On Saturday, May 9, 2009, along with the 14 bags of pellets, there was a large stack of empty feed bags, clearly indicating that the horses were being fed, over a long period of time. APPENDIX B APPENDIX B

Fat Mares in pasture 1 month before the seizure.

5", ,*-».--*/::**. t ' V -: .(.•3 ?HS^%^ APPENDIX C STATE VS. PASELK - VOLUME 3 OF 6 - 10/27/09

1 REPORTER'S RECORD VOLUME 3 OF 6 VOLUMES 2 TRIAL COURT CAUSE NO(S) CR0926723, CR0926724

3 STATE OF TEXAS IN THE COUNTY COURT

4 Plaintiff,

5 VS . AT LAW

6 CAROL PASELK

7 Defendant. HOPKINS COUNTY, TEXAS

12 ************************ * * * * *

13 TRIAL ON MERITS 14 *****************************

17 COPY 18

20 On the 27th day of October, 2009, the following

21 proceedings came on to be heard in the above -entit led

22 and numbered cause before the Honorable Amy M. Smith,

23 Judge presiding, held in Sulphur Springs, Hopkins

24 County, Texas: Proceedings reported by machine

25 shorthand method.

KAYLA R. SCOTT, CSR, RPR (214) 534-9424 APPENDLX c

62 STATE VS. PASELK - VOLUME 3 OF 6 - 10/27/09

1 some of the horses were in stalls?

2 A. Right. That's true. There were horses --

3 the horses that were inside and in the manure also had

4 no ventilation, no daylight, but there was a pasture

5 out back that had some horses in it.

6 Q. And overall there would be a few horses that

7 if you just took a snapshot of those two or three --

8 A. Right.

9 Q. -- they would be --

LO A. Right.

LI Q. -- I guess considered okay?

L2 A. Yes, right. There were some that were

L3 okay. There was one pasture that probably had enough

L4 grass and was maintaining those horses.

Li y. tsut as a wnoie, wnat would your opinion be?

L6 A. But the majority of it was gross neglect,

L7 gross abuse. You know, those animals were suffering.

L8 They didn't see daylight. They didn't have pens big

L9 enough to walk. Their hooves were out and under, so

20 they never touched the ground, you know, starving,

>1 horses in pain, the one that had laid there and died

>2 all night, you know, suffered and died, you know, just

23 gross neglect and abuse.

14 Q. And if you are looking at this case as to

>5 what is best for the horses, what, if anything, would

KAYLA R. SCOTT, CSR. RPR (214) 534-9424 285 STATE VS. PASELK - VOLUME 3 OF 6 - 10/27/09

1 week's time.

2 A. Well, at that particular time when Sergeant

3 Crump went out there, he didn't know of any history of

4 Ms. Paselk. He kind of felt sorry for her, and from

5 what she was telling him, he was going to give her 6 time to -- he saw feed. He saw wormer. He didn't

7 know anything about the rescue group's prior dealings 8 with her, and she just wasn't doing anything. I mean, 9 the day we went out to serve the seizure papers, the

LO feed was still there, and the wormer was still there

LI in the bucket, and she hadn't even attempted to do L2 anything. So after Lieutenant Turner and I had

L3 discussed it, we just kind of took it upon our own to L4 go see Ms. Rabe and get the seizure papers because the

L5 horses would be starved to death.

TT T- Anfl 6n Che flip side or that, it what she

L7 had told Mr. Crump compared to what we knew of the

L8 rescue groups and their involvement had been true, if

L9 they were still going to work with her, if there was

20 going to continue to be a supply of food or wormer, if

21 what she had told Mr. Crump he wrongly or rightly 22 believed, if that were true, would you have a

23 different opinion?

24 A. I would have. She would probably still have

25 the horses today because she was attempting to feed

KAYLA R. SCOTT, CSR, RPR (214) 534-9424

The Court needs to consider that the "rescues"testified that they were NOT supplying continuing support which they could withdraw from Appellant. Appellant had been purchasing feed on her own for months without the support of any "rescue." 216 STATE VS. PASELK - VOLUME 3 OF 6 - 10/27/09

1 been an equine judge at Texas A&M?

2 A. I was in 4H prior to college. I was on a

3 horse judging team, and then I started in Commerce on

4 the collegiate horse judging team. 5 Q. Horse judging team?

6 A. Correct.

7 Q. So at least in your somewhat younger days 8 you were around horses quite a bit --

9 A. Correct.

10 Q. -- judging things?

11 A. Correct.

12 Q. So you know -- you really do know what an 13 older horse tends to look like and a younger horse 14 tends to look like; isn't that right? 15 A. There's a lot of things in my opinion that 16 you look for, and sometimes it's hard to tell a 17 difference between an older horse and a poorer horse 18 just from looking at them without inspecting their 19 teeth and dental work and that kind of stuff 20 Q. You relied on the secondhand statements 21 through Henry Turner, through Lieutenant Turner of 22 these horse rescue people that she was going to get 23 cut off from her assistance or was receiving sporadic 24 assistance; that's what you relied on in changing your 25 opinion and swearing under oath, well, actually I

KAYLA R. SCOTT, CSR, RPR (214) 534-9424 92 STATE VS. PASELK - VOLUME 3 OF 6 - 10/27/09

1 Q. Do you know how many times it happened?

2 A. Once from what I understand. All the more

3 reason to move them into another home I would think.

4 Q. How much assistance did you offer my client? A. I think I got the board to approve

purchasing $200 worth of hay, and then we approved purchasing 25 wormers.

8 Q. And --

9 A. We don't feed other people's horses. That 10 was really a unique case.

11 MR. LILLEY: I am going to show you in 12 a moment here what I am going to mark as Defendant's 13 Exhibits 3, 4, and 5. Strike that. I am going to -- 14 one of them is a duplicate, so I am going to go with 15 Defendant's Exhibits 3 and 4.

16 MS. RABE: Your Honor, my only 17 objection would be as to whether or not she is the one 18 who took these photographs and she is aware of the 19 circumstances behind it.

20 MR. LILLEY: Your Honor, I guess she 21 could testify to that, whether or not she is aware of 22 it, but I am not trying to admit it for that purpose. 23 Without going into what the details are, I would like 24 to show it to

25 THE COURT: Show it to the witness.

KAYLA R. SCOTT, C3R, RPR (214) 534-9424 217 STATE VS. PASELK - VOLUME 3 OF 6 - 10/27/09

1 believe they should be seized; is that correct?

2 A. Correct.

3 Q. Do you ever sense -- do you know what these 4 people's names are?

5 A. Which people?

6 Q. These rescue organization folks. Do you 7 know what their names are?

8 A. No, sir.

9 Q. Do you know if they are male or female or if 10 they live in Texas? Do you know for sure whether or 11 not they have even talked to Carol Paselk?

12 A. No, sir.

13 Q. The mention of the ten-day offer that you 14 made Ms. Paselk, that's not in your narrative report, 15 is it?

16 A. I don't believe so. < 17 Q. So that was an offer that was made, but it 18 wasn't made -- it wasn't indicated in your report? 19 A. Correct.

20 Q. And you never told her -- and if you did, 21 please let us know -- that if she didn't get rid of 22 some horses in ten days that she was facing imminent 23 law enforcement seizure, did you? 24 A. No, sir.

25 MR. LILLEY: Pass the witness.

KAYLA R. SCOTT, CSR, RPR (214) 534-94 2 4 257 STATE VS. PASELK - VOLUME 3 OF 6 - 10/27/09

1 Q. -- when he went out?

2 A. No .

3 Q. Did you then send another deputy out at some 4 point?

5 A. Yes, I did.

6 Q. And who was that deputy?

7 A. That was Sergeant Tanner Crump. 8 Q. What were you instructing Tanner Crump to do 9 once he went out to the property? 10 A. To investigate the conditions of the horses. 11 Q. In light of the information you were 12 receiving from the rescue organization? 13 A. That's correct.

14 Q. What were the concerns the rescue

15 organizations had that you felt like you were trying 16 to look into?

17 A. They weren't getting properly fed. 18 MR. LILLEY: Objection, hearsay as to 19 anything these horse rescue organizations told 20 Lieutenant Turner.

21 MS. RABE: The truth of the matter is 22 it's the nature of the investigation he would be 23 conducting to see what they were looking into. 24 THE COURT: His reasons --

25 MR. LILLEY: With an instruction that

KAYLA R. SCOTT, CSR, RPR (214) 534-9424 260 STATE VS. PASELK - VOLUME 3 OF 6 - 10/27/09

1 from the rescue organizations or did you ever get any 2 information as to whether or not that continued to be

3 a source of medicine, feed, hay?

4 A. Yes. And I actually, I believe, had

5 conversation with two people from different

6 organizations.

7 Q. In your opinion, were those resources about

8 dried up and were they at the point they weren't going 9 to work with Ms. Paselk anymore?

10 A. Absolutely.

11 Q. Did that factor into a decision to go in and 12 seize the horses?

13 A. Yes. And the other factor was that I had

14 made notification to the county attorney's office and 15 let them know what was going on at that time, and we 16 even had made an offer to help her with the horses as 17 long as we were able to find a home for those horses. 18 Q. We even discussed -- again, one last time we 19 would like to see something other than a seizure 20 happen and to let her have control of what happened to 21 her horses that she loved?

22 A. Yes.

23 Q. And what was the plan that you and I came up 24 with as a last-ditch effort?

25 A. That we would provide hay and food for the

KAYLA R. SCOTT, CSR, RPR 214) 534-9424 261 STATE VS. PASELK - VOLUME 3 OF 6 - 10/27/09

1 horses.

2 Q. And we are not going -- it wasn't like you 3 and I are going to provide the hay and food, but the 4 sheriff's office?

5 A. Right.

6 Q. And that we would --

7 A. And that we would provide that for a week, 8 and during that week, she needed to be finding a place 9 for -- a home for those horses.

10' Q. And what was her response to that offer?

11 A. She said no.

12 Q. And at that point was there a strong concern 13 about the likelihood of these horses making it at that 14 point ?

15 A. Very strong concern.

16 MS. RABE: I will pass the witness.

17 CROSS-EXAMINATION

18 BY MR. LILLEY

19 Q. Lieutenant Turner, you sent out Sergeant 20 Crump and Officer David Ray; isn't that correct? 21 A. Yes.

22 Q. Out to the property?

23 A. Yes.

24 Q. In fact, you had never been out there before 25 that time?

KAYLA R. SCOTT, CSR, RPR (214) 534-9424 262 STATE VS. PASELK - VOLUME 3 OF 6 - 10/27/09

1 A. No .

2 Q. And you weren't out there after that time 3 until the day of the seizure; is that correct? 4 A. That's correct.

5 Q. And there's a six-day window in between 6 those two, between the time that Sergeant Crump was 7 there and the time that the seizure warrant was 8 issued; isn't that correct?

9 A. I believe so.

10 Q. Did you personally make this offer of hay 11 and feed to Ms. Paselk?

12 A. Personally?

13 Q. Yes.

14 A. No.

15 Q. Were you there when anybody else personally 16 made the offer?

17 A. No .

18 Q. Do you know what the wording was behind -- 19 what the contingencies were on this offer, and were 20 you there when she said no, how she said no, or 21 whether or not it was a qualified no or an absolute 22 no? You weren't there for any of that? 23 A. I wouldn't know if it was a qualified no or 24 absolutely no.

25 Q. Because you weren't there for that?

KAYLA R. SCOTT, CSR, RPR (214) 534-9424 263 STATE VS. PASELK - VOLUME 3 OF 6 - 10/27/09

1 A. I wasn't there for that. I got that 2 information from the officer that was out there on the 3 scene.

4 Q. Now, you signed the -- you signed the 5 complaint in this case, in the criminal case; isn't 6 that correct? You signed the complaint which resulted 7 in her arrest; isn't that correct?

8 A. I believe so.

9 Q. I mean, if there's documentation to that 10 effect, then that's probably true, right? 11 A. Absolutely.

12 Q. And part of what you state is that you read 13 reports by the sheriff's department in coming up with 14 your decision to make an arrest; isn't that right? 15 A. Yes.

16 Q. All right. Because you don't have the 17 personal knowledge of what was going on on that 18 property other than what happened at the seizure, so 19 you have to rely at least in part on what Sergeant 20 Crump said?

21 A. Absolutely.

22 Q. Have you read Sergeant Crump's report? 23 A. It's been a while since I read that. 24 Q. But you believe you have seen a narrative 25 report ?

KAYLA R. SCOTT, CSR, RPR (214) 534-9424 264 STATE VS. PASELK - VOLUME 3 OF 6 - 10/27/09

I believe so

2 Q. Do you recall that on April 30th or May 1st, 3 the following day, that Sergeant Crump said there was 4 no immediate need to seize the horses at this time 5 because there was feed and medical care available? Do 6 you recall that?

7 A. That's what was told to him.

8 Q. Okay. Are you aware that was put in his 9 report as fact?

10 A. I believe so.

11 Q. Okay. You aren't disputing that? 12 A. Not unless I can read the report actually. 13 Q. Now, you said that you spoke with some 14 members of a rescue organization. Did you speak to 15 them before or after or both, before the contact with 16 Sergeant Crump and after or both?

17 A. Yeah, I think it would have probably been a 18 little bit of both. It was continuous. 19 Q. Do you recall their names?

20 A. I believe one was I want to say Melanie. 21 Q. Melanie?

22 A. Melanie.

23 Q. Anybody else that you recall names of? 24 A. And I believe the other one may have been 25 Jenni fer

KAYLA R. SCOTT, CSR, RPR (214) 534-9424 265 STATE VS. PASELK - VOLUME 3 OF 6 - 10/27/09

1 Q. Now, did you speak to them by phone or by 2 e-mai1 or --

3 A. Phone. I talked to both of them by phone. 4 Q. And do you know where these people live? 5 A. No.

6 Q. Have you ever met them in person? 7 A. No.

8 Q. Have you ever sat them down in your office 9 and interviewed them?

10 A. No.

11 Q. Have you ever been able to see them to gauge 12 their truthfulness or untruthfulness in person? 13 A. No, not in person. 14 Q. And so these folks that you spoke with who 15 said that they were -- they had been helping 16 Ms. Paselk -- is that what they told you? 17 A. Yes.

18 Q. And they weren't going to help her anymore? 19 A. Yes.

20 Q. That could have been anybody; isn't that 21 true, Lieutenant Turner? I mean, you don't know who 22 these people are because you have never met them 23 before; isn't that correct?

24 A. I had never met them before, no. 25 Q- So you can't really give an opinion on

KAYLA R. SCOTT, CSR, RPR (214) 534-9424 266 STATE VS. PASELK - VOLUME 3 OF 6 - 10/27/09

1 personal level as to their credibility?

2 A. No, not at that time.

3 Q. Now, of course, Sergeant Crump was able to 4 meet with my client in person and talk with her for a

5 couple of hours in person, and he based his report 6 upon that; isn't that correct?

7 A. I believe so.

8 Q. And according to what he believed at the

9 time, he believed that there was no need to seize

10 these horses; isn't that correct?

11 A. I believe so.

12 Q. And you took it upon yourself to change his 13 mind about that; isn't that correct?

14 A. I took it upon myself as a supervisor to 15 look at that report and look at the pictures that I 16 have seen to make a decision.

17 Q. Those were pictures that Sergeant Crump took 18 of things that he saw in person, and saw pictures of 19 it?

20 A. That's correct.

21 Q. Things that he looked at and determined 22 weren't necessary for a seizure, you had a different 23 idea?

24 A. Yes.

25 And you never followed up with an

KAYLA R. SCOTT, CSR, RPR 214) 534-9424 272 STATE VS. PASELK - VOLUME 3 OF 6 - 10/27/09

1 witness.

2 RECROSS-EXAMINATION

3 BY MR. LILLEY

4 Q. Are you aware of any writing that offered

5 this ten days' worth of feed if she would agree to 6 find another home for some of her horses?

7 A. I am not aware of any writing.

8 Q. You are not aware of anything put down in 9 writ ing?

10 A. No .

11 Q. So as far as you understand, that was an

12 oral offer

13 A. Yes.

14 Q. -- that from what you understand she didn't 15 want to do?

16 A. That's correct.

17 Q. And you are not aware of anybody -- are you 18 aware of anybody telling my client that if she did not 19 agree to re-home the horses that they would be seized 20 by law enforcement? Are you aware of anybody actually 21 explaining that to her?

22 A. No .

23 MR. LILLEY: Pass the witness.

24 FURTHER REDIRECT EXAMINATION

25 BY MS. RABE

KAYLA R. SCOTT, CSR, RPR (214) 534-9424 284 STATE VS. PASELK - VOLUME 3 OF 6 - 10/27/09

1 Did you read Sergeant Crump's report 2 A Yes .

3 Q -- based on his April 30th visit?

4 A Yes .

5 Q You are aware it says that no immediate

6 seizure is needed?

7 A. I do. I am.

8 Q. You are aware that he toured the property 9 personally with Deputy Ray?

10 A. Right.

11 Q. And Deputy Ray didn't file any contrary 12 report where he says, I don't care what Tanner Crump 13 says,- what I saw they need to be seized? He didn't

14 file anything like that either?

15 A. Right.

16 Q- So they were looking at the same place you 17 were looking at?

18 A. Yes.

19 Q- And their conclusion on April 30th there was 20 no seizure needed?

21 A. Right.

22 MR. LILLEY: Pass the witness.

23 FURTHER REDIRECT EXAMINATION

24 BY MS. RABE

25 Q. So explain to the jury what changed within a

KAYLA R. SCOTT, CSR, RPR (214) 534-9424 APPENDIX D APPENDIX D In The Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06-14-00099-CR

EX PARTE: CAROL PASELK

On Appeal from the 8th District Court Hopkins County. Texas Trial Court No. 00665

Before Morriss. C.J.. Carter and Moseley, JJ. Memorandum ODinion bv Justice Moselev MEMORANDUM OPINION

Carol Paselk's appeal of the denial of her petitions for habeas corpus relief has it origins

in two previous convictions in the County Court at Law of Hopkins County for cruelty tc

livestock animals.1 In 2010, we upheld both convictions. Paselk v. State, No. 06-09-00214-CR,

2010 WL 3034258, at *1 (Tex. App.—Texarkana Aug. 5, 2010, pet. refd) (mem. op., not

designated for publication); Paselk v. State, No. 06-09-00215-CR, 2010 WL 3034255, at *1

(Tex. App.—Texarkana Aug. 5, 2010, pet. refd) (mem. op., not designated for publication).

Paselk filed on April 21, 2014, petitions for writs of habeas corpus in the 8th Judicial District

Court of Hopkins County arguing, among other things, that the two convictions were void and

maintaining that the County Court at Law lacked subject-matterjurisdiction.

Article 11.072 of the Texas Code of Criminal Procedure "establishes the procedures for

an application for a writ of habeas corpus in a felony or misdemeanor case in which the applicant

seeks relief from an order or a judgment of conviction ordering community supervision."2 Tex.

Code Crim. Proc. Ann. art. 11.072, § 1 (West Supp. 2014); Villamieva, 252 S.W.3d at 395-96.

Article 11.09 of the Texas Code of Criminal Procedure establishes the procedure for seeking a

'See TEX. PENAI.CODE ANN. § 42.09 (West 2011). "Paselk has completed both her sentence and her community supervision term. "The writ of habeas corpus is the remedy to be used when any person is restrained in his liberty." Tex. Code CRIM. PROC. Ann. art. 11.01 (West Supp. 2014). "It is an order issued by a court or judge of competent jurisdiction, directed to any one having a person in his custody, or under his restraint, commanding him to produce such person, at a time and place named in the writ, and show why he is held in custody or under restraint." Id. "The terms 'confinement' and 'restraint,' lor habeas corpus purposes, have been defined broadly" to "include a wide variety of detrimental consequences." Ex parte Ali, 368 S.W.3d 827, 831, 832 (Tex. App.—Austin 2012, pet. refd); see Ex parte Harrington, 310 S.W.3d 452, 457 (Tex. Crim. App. 2010); Le v. State, 300 S.W.3d 324, 326-27 (Tex. App.—Houston [14th Dist.] 2009, orig. proceeding); State v. Collazo, 264 S.W.3d 121, 126-27 (Tex. App.—Houston [1st Dist.] 2007, pet. refd). Thus, "the completion of an applicant's sentence or probationary term does not deprive the trial court of jurisdiction." Ali, 368 S.W.3d at 831; see Ex parte Villamieva, 252S.W.3d 391, 395-96 (Tex. Crim. App. 2008) (Section 11.072 expressly "permits a person who is servingor who has completed a term of community supervision to file an application for a writ of habeas corpus."); Exparte Schmidt, 109 S.W.3d 480,481 (Tex. Crim. App. 2003). writ ot habeas corpus in misdemeanor cases not involving community supervision. Tex. CODI

Crim. Proc Ann. art. 11.09 (West 2005). In one case, Paselk was placed on community

supervision; in the other case, she was sentenced to 275 days' confinement in the Hopkin:

County Jail. Paselk, 2010 WL 3034258, at *1; Paselk, 2010 WL 3034255, at *1. Accordingly.

Paselk's petitions for writs of habeas corpus were filed under Articles 11.072 and 11.09

respectively, of the Texas Code of Criminal Procedure. We affirm the district court's judgmeni

with respect to Paselk's Article 11.072 petition, but find that we are without jurisdiction ovei

Paselk's appeal from the denial of her Article 11.09 petition.

An applicant seeking relief via the writ of habeas corpus bears the burden to prove his

claim by a preponderance of the evidence. Ex parte Morrow, 952 S.W.2d 530, 534 (Tex. Crim

App. 1997); In re Davis, 372 S.W.3d 253, 256 (Tex. App.—Texarkana 2012, orig. proceeding).

In reviewing a trial court's ruling on a post-conviction application for the writ, we view the

evidence in the light most favorable to the habeas court's ruling, and we uphold that ruling

absent an abuse of discretion. Ex parte Peterson, 117 S.W.3d 804, 819 (Tex. Crim. App. 2003^

(per curiam), overruled on other grounds by Ex parte Lewis, 219 S.W.3d 335, 371 (Tex. Crim.

App. 2007); see Ex parte Simpson, 260 S.W.3d 172, 174 (Tex. App.—Texarkana 2008, pet.

refd). We afford almost total deference to the habeas court's findings of historical fact, so long

as the findings are supported by the record'. Ex parte White, 160 S.W.3d 46, 50 (Tex. Crim. App.

2004). Similarly, we will defer to the habeas court's application of the law to the facts, but only

when resolution of the ultimate question turns on an evaluation of credibility and demeanor.

Ex parte Harrington, 310 S.W.3d 452, 457 (Tex. Crim. App. 2010): White, 160 S.W.3d at 50. When resolution of the ultimate question turns solely on an application of legal standards, oui

review is de novo. Peterson, 117 S.W.3d at 819.

"An application under Article 11.072 'must be filed with the district clerk of the court in

which community supervision was imposed'" and must "attack the 'legal validity' of '(1) the

conviction for which or order in which community supervision was imposed'; or '(2) the

conditions of community supervision.'" Villamieva, 252 S.W.3d at 395 (quoting TEX. CODE

Crim. Proc. Ann. art. 11.072, § 2). Paselk's burden to show that she is entitled to habeas reliei

includes providing an adequate record demonstrating compliance with Article 11.072. See TEX.

R. App. P. 52.7(a) (requiring certified copies of all relevant documents filed in any underlying

proceeding and a properlyauthenticated transcript of any relevant testimony from any underlying

proceeding); In re Turner, 177 S.W.3d 284, 288 (Tex. App.—Houston [1st Dist.] 2005, orig.

proceeding). Paselk's Article 11.072 petition for habeas relief was filed with the district court.

Here, while Paselk attacked the legal validity of her convictions, nothing beyond a bare assertion

in the petition demonstrates that the Article 11.072 petition for writ of habeas corpus was first

filed in the County Court at Law of Hopkins County—the court in which community supervision

was imposed. Thus, we cannot say that the district court abused its discretion in concluding that

the Article 11.072 petition was improperly filed.4

3Paselk's petition stated, "Petitioner filed Petition For Writ ofHabeas Corpus with the County Court At Law on July 28, 2011. Judge Amy Smith denied Petition by letter. Petitioner filed a second Petition For Writ of Habeas Corpus with Judge Amy Smith, with new information, on December 12. 2013. Judge Amy Smith denied Petition by letter."

Paselk provided the district court with a "Supplement of Brand New Court of Appeals Case Law" not originally included in her petition for writ of habeas corpus. The supplement and Paselk's brief on appeal rely heavily on a ruling of the Oregon Court of Appeals in a case she cites as "State of Oregon v. Amanda L. Newton Multnomah County Circuit Court 110443303, A149495" and appears to complain that the trial court refused to recognize it as authority. We located the case to which Paselk referred and note that the Oregon Supreme Court has agreed to A We recognize that in its order denying Paselk's Article 11.072 petition, the trial courl

wrote, "According to Petitioner . . . , she has already sought habeas relief from the proper court.

It was denied." Even assuming that Paselk had filed the Article 11.072 petition with the County

Court at Law of Hopkins County, our result would be the same, Article 11.072, Section S

"restricts the circumstances under which a court can consider the merits of claims raised in z

subsequent application." Villenueva, 252 S.W.3d at 396. Section 9 states,

(a) If a subsequent application for a writ of habeas corpus is filed after final disposition of an initial application under this article, a court may not consider the merits of or grant relief based on the subsequent application unless the application contains sufficient specific facts establishing that the current claims and issues have not been and could not have been presented previously in an original application or in a previously considered application filed under this article because the factual or legal basis for the claim was unavailable on the date the applicant filed the previous application.

(b) For purposes of Subsection (a), a legal basis of a claim is unavailable on or before a date described by that subsection if the legal basis was not recognized by and could not have been reasonably formulated from a final decision of the United States Supreme Court, a court of appeals of the United States, or a court of appellate jurisdiction of this state on or before that date.

(c) For purposes of Subsection (a), a factual basis of a claim is unavailable on or before a date described by that subsection if the factual basis was not ascertainable through the exercise of reasonable diligence on or before that date.

Tex. Code Crim. Proc. Ann. art. 11.072, § 9. Because our record does not contain any petition

for writ of habeas corpus filed with the County Court at Law of Hopkins County, we are unable

to ascertain whether Paselk's petition with the district court met the requirements of Section 9.

Clearly, if Paselk's Article 11.072 petition was identical to the one submitted to the County-

review that case on appeal from the Court of Appeals. See Oregon v. Newcomb, 324 P.3d 557 (Or. App. 2014). Even if the case she cited were the final rule of law as it applies in Oregon, the district court here was correct in stating, in an order denying an "apparent request for reconsideration of its ruling, that an Oregon case has no precedential value in the determinations applyingto this case. 5 Court at Law of Hopkins County, the district court would be restricted from considering the

petition on its merits.

Our treatment with respect to Paselk's Article 11.09 petition is different. Unlike Article

11.072, which mandates that a habeas petition ''must be filed with ... the court in which

community supervision was imposed," Tex. Code Crim. Proc Ann. art. 11.072, § 2 (emphasis

added). Article 11.09 merely states that a person "may apply to the county judge of the county in

which the misdemeanor is charged to have been committed," Tex. CODE CRIM. PROC. ANN. art.

11.09 (emphasis added). In contrast to Article 11.072, the language of Article 11.09 "is

permissive, not mandatory, and is therefore merely advisory in nature." State ex rel. Rodriguez

v. Onion, 741 S.W.2d 433, 434 (Tex. Crim. App. 1987) (orig. proceeding); see Ex parte

Tarango, 116 S.W.3d 201, 202 n.3 (Tex. App.—El Paso 2003, no pet.); In re Maxwell, 970

S.W.2d 70, 71 n.l (Tex. App.—Houston [14th Dist.] 1998, orig. proceeding). Under Article

11.05 of the Texas Code of Criminal Procedure, "[t]he Court of Criminal Appeals, the District

Courts, the County Courts, or any Judge of said Courts, have power to issue the writ of habeas

corpus." Tex. Code Crim. Proc. Ann. art. 11.05 (West 2005). As a result. Article 11.09 does

not deprive district courts of jurisdiction to hear post-conviction habeas corpus petitions in

misdemeanor cases.3 Onion, 741 S.W.2d at 434. Thus, both county and district courts have

original jurisdiction in habeas corpus proceedings when attacks are made upon the validity of

The district court's order states that Paselk could have appealed the county court's denial of her Article 11.09 petition, assuming that such a petition had been filed there. When the court in which an Article 11.09 application was filed denies the writ, the applicant can also present his application to another court having jurisdiction. See Mayes v. Stale, 538 S.W.2d 637, 639 (Tex. Crim. App. 1976); Cree v. State, 814 S.W.2d 74, 76 (Tex. App.—Corpus Christi 1991), pet. refd, 817 S.W.2d 344 (Tex. Crim. Add. 199R misdemeanor convictions not involving community supervision. Id.; Tarango, 116 S.W.3d ai

202 n.3; Maxwell, 970 S.W.2d at 71 n.l .6

However, "[a] trial court's ruling [in a habeas corpus proceeding] is appealable only

when the trial court issues the writ and then rules on the merits of the questions presented at the

hearing and denies the relief sought." In re Shaw, 175 S.W.3d 901, 904 (Tex. App.—Texarkana

2005, orig. proceeding). But, "when a trial judge refuses to issue a writ or denies an applicant a

hearing on the merits of his or her claims, there is no right to appeal." Villanueva, 252 S.W.3d al

394.

Paselk argues that the district court erred in failing to consider the merits of her numerous

claims and in denying habeas relief "without any hearing or consideration of the pertinent

facts."7 Here, the district court (1) did not grant Paselk's petition for writ of habeas corpus, (2) did not hold a hearing or purport to rule on the merits of Paselk's claims, (3) did not rule on

the merits of Paselk's claims, except to determine that the county court had jurisdiction over

Paselk's convictions, and (4) denied habeas relief. Thus, here. "[t]here is no appeal from a

refusal to issue the writ of habeas corpus" under Article 11.09. Ex parte McCullough, 966

S.W.2d 529, 531 (Tex. Crim. App. 1998) (per curiam); see Ex parte Hargett, 819 S.W.2d 866,

bSee also Ex parte Davis, No. 12-09-00172-CR, 2010 WL 827322, at *1 (Tex. App.—Tyler Mar. 10, 2010, pet. refd) (mem. op., not designated for publication). Although this unpublished case has no precedential value, we may take guidance from it "as an aid in developing reasoning that may be employed." Carrillo v. State, 98 S.W.3d 789, 794 (Tex. App.—Amarillo 2003, pet. refd).

Although Paselk raised several complaints in her habeas petition, the trial court only addressed the issue of the county court's jurisdiction over Paselk's convictions. "[Cjounty courts shall have original jurisdiction of all misdemeanors of Which exclusive original jurisdiction is not given to the justice court, and when the fine to be imposed shall exceed five hundred dollars." TEX. CODE Crim. Proc. Ann. art. 4.07 (West 2005). Under Section 42.09 of the Texas Penal Code, Paselk was charged with a class A misdemeanor. See Tex. Penal Code Ann. § 42.09(c). Class A misdemeanors are punishable by a fine not to exceed S4,000.00, confinement in jail for a term not to exceed one year, or both such fine and confinement. Tex. Penal Code Ann. § 12.21 (West 2011). Thus, the district court correctly ruled that the County Court at Law of Hopkins County had jurisdiction over the State's indictments against Paselk. 868-69 (Tex. Crim. App. 1991), superseded in part by statute as discussed in Villanueva, 252

S.W.3d at 397 (because writ issues automatically in Article 11.072 cases, Hargett rule does not

apply); Shaw, 175 S.W.3d at 903-04 (citing Ex parte Martell, 901 S.W.2d 754, 755 (Tex.

App.—San Antonio 1995, no pet.) (per curiam); Cree, 814 S.W.2d at 76.8

We affirm the trial court's ruling with respect to her Article 11.072 petition for writ of

habeas corpus, but dismiss the portion of Paselk's appeal related to her Article 11.09 petition for

writ of habeas corpus for want ofjurisdiction.

Bailey C. Moseley >v Justice

Date Submitted: August 21, 2014 Date Decided: October 1,2014

Do Not Publish

"In a case where a judge refuses to issue the requested writ ofhabeas corpus or denies an applicant th&iijc&ijcsjad hearing on the merits of his claim, an applicant's remedies are limited." Hargett, 819 S.W:94 ^t

Taxwkana, Ttscas 0#r»ra A'j-fcsv, G*i*ri Court of Appeals Sixth Appellate District of Texas

JUDGMENT

Ex Parte: Carol Paselk Appeal from the 8th District Court oi Hopkins County, Texas (Tr. Ct. No. No. 06-14-00099-CR 00665). Memorandum Opinion delivered by Justice Moseley, Chief Justice Morriss and Justice Carter participating.

As stated in the Court's opinion of this date, we find no error in the judgment of the court below. We affirm the trial court's ruling with respect to Carol Paselk's Article 11.072 petition for writ of habeas corpus, but dismiss for want of jurisdiction the portion of her appeal related to her Article 11.09 petition for writ of habeas corpus. We note that the appellant has adequately indicated her inability to pay costs of appeal. Therefore, we waive payment of costs.

RENDERED OCTOBER 1, 2014 BY ORDER OF THE COURT JOSH R. MORRISS, III CHIEF JUSTICE

ATTEST: Debra K. Autrev. Clerk