§§ O‘/§»~©/
No. 60527-A EX PARTE RECE\\/ED\N § IN THE DISTRICT coURT COURT OF CR\W“NAL APPEALS § EC 312[31!% ` § 0F BRAZORIA -cOUNTY, TEXAS D § , SHANNON COLE S%Ilrgcosta C\erk § 23RD JUDICIAL DISTRICT A e ), `
RESPONSE IN TRAVERSE TO STATE'S FINDINGS OF FACT
TO THE HONORABLE JUSTICES OF THE COURT OF CRIMINAL APPEALS:
n Pursuant to the State's Findings of Fact entered December 3, 2014 in the 23rd Judicial District Court of Brazoria County, as ordered by this Honorable Court of Record, Applicant Shannon Cole Smith, hereinafter styled, "Applicant," presents his Response in Traverse with Affidavit of Fact in Support contesting the following:
l. , DEFICIENCIES IN ARREST WARRANT
11 First and foremost, in order for an arrest warrant received by teletype (telegraph) the law is absolutely clear pursuant to Texas Code of Criminal Procedmre, Article 15.12, titled: "Warrant or Com- plaint Must Be Under Seal," the statute clearly states: "No manager of telegraph office shall receive and forward a warrant or complaint unless the same shall be certified to under seal of a court of re- cord or by a justice of the peace, with the certificate under seal of a court of record or by justice of the peace, with certificate under seal of the district or county clerk of his county that he is a legally qualified justice of the peace of such county, nor shall it be lawful for any magistrate to endorse a warrant received by telegraph, or issue a warrant upon a complaint received by telegraph, unless all requirments of law in relation thereto have been fully complied with." Tex..Code of Crim. Proc., Art. 15.12 (Vernon's).v 2. _Second, the produced "warrant" the State has presented to the
Honorable Court is extremely questionable for the following reasons:
a. The Alvin Police Department alleges in the Findings of Fact that it was in possession of anarrestwarrant for the Applicant
Response in Traverse Pa£€ 1
"for the offense of Felony Larceny of a Motor Vehicle out of North Carolina at the time Officers from that agency entered the Appli-
cant's motel room and found him in bed with...."
(See Findings ofl Fact at page 1).
b. lf, in fact, the Alvin Police Department was in possession of said arrest warrant at the time Officers from that agency entered the Applicant's motel room, why did the agency have to procure a faxed copy of the alleged warrant for arrest from North Carolina,
or rather, the Brazoria County District Attorney, on 11/07/2014 at 09:51; again at 11/21/2014 FRI at 14:07; and yet again on 11/21/2014 FRI at 14:17?
c. This "warrant" which the State has produced is "cheap as press- on nails and Applicant could have done a much better job of forging such a thing! This warrant is not even signed by a magistrate, as required, a typed name of a Brandon J. Freeman, without more cannot be deemed signatory and lawful. The warrant does not contain the seal of the court of record or justice of the peace, being a legal- ly qualified justice of the peace, with certificate under seal of the district or county clerk of his county certifying that he is a legally qualified justice of the peace of such county, According to. the lawful requirements of Art. 15.12, supra, endorsement is required and no such endorsement may be placed on a warrant received by tele- graph unless all requirements of law in relation thereto have been fully complied with. (See Art. 15.12, T.C.C.P., supra)
d. The ¥warrant" produced by the State for the Honorable Court
is defective in many ways, but the worst defect is the fact it is not under seal nor certified to by a court of record or by a just- ice of the peace. Not only is it not signed by a magistrate from Buncombe County, North Carolina, it clearly smells like a rat!
e. Finally, and this is going to raise some hairs on the back of some necks, Applicant owned the vehicle alleged stolen from Angela Cherie Smith, as this is his lawful wife! (See attached Certificate of Marriage out of Brazoria County, Texas, dated November 8, 1998). Surely, when Mrs. Angela Smith was filing the report of a stolen vehicle, someone, anyone, asked her if she was related to Shannon` Cole Smith! Applicant purchased the vehicle in North Carolina from
his in-laws family and put the vehicle in his wife's name. He did
Response in Traverse page 2
drive the vehicle to California, then to Texas, where he was arrest- ed for being in possession of "community property" purchased while
he and the alleged complainant were "legally married,"
and they are Still legally married! Having married in Texas, any item purchased while legally married is "community property" and neither party to
the marriage can allege separate ownership to said item purchased!
Applicant need not take the Honorable Court down "Family Law" lane to support his contention. f. Why didn't anyone bother to check if Applicant was the owner
of the vehicle by law? Who would accept an affidavit of probable cause from the alleged Complainant, Angela Cherie Smith, without asking her if she was legally married to the alleged defendant? lf, in fact, an arrest warrant even exists for Applicant as Warrant No. WA66166@, out of the State of North Carolina, someone needs to put that State on notice that Applicant is legally married to the alleged complainant and that the vehicle she alleges he stole from her is his. Someone needs to explain the law of community property to the backwards State of North Carolina, as Applicant is guilty of nothing in the form of violation of law in driving his own truck to California and then to Texas, even if it was without the effective consent of his lawful wife! Unless the State can present proof of claim that the vehicle in question was "separate property" of the alleged complainant, the lack of clean hands; lack of subject matter jurisdiction; and personal jurisdiction; to include lack of fair dealings demands that Applicant be immediately released from custody and that he be compensated for his wrongful conviction and confine- ment. (See Applicant's Affidavit of Fact, attached) ll. PRAYER
3. Applicant prays that this Honorable Court demand that the State produce the alleged arrest warrant under seal it allegedly received from the justice of the peace or from the court of record the telegraph manager took it to to get said certification. The warrant produced by the State is dated after the fact and cannot be deemed "evidence" in the habeas record or trial court record, as a
violation of the rules of evidence and right to confrontation and
Response in Traverse page 3
cross-examination occurred when Applicant was denied the right to question the alleged certification and possession of the warrant
for arrest at the time officers entered the motel room.
4. Applicant would also like to point out that Officer Jason Shoemake's Affidavit of Fact at paragraph 5 where the officer states that "Officers attempted to make verbal contact with Smith inside. After no response from inside the room, l used the hotel key to open
the door..., is inconsistent with the Original Complaint's set of facts, as in that Complaint, Officer Shoemake states he knocked on the door and stated "POLICE DEPARTMENT. After a few seconds l did not hear a response from inside so l swiped the room key and the green light came on indicating that the door was open...." 5. Applicant would also ask the Honorable Court to have the State explain why Officer Shoemake's Affidavit also has the same fax time and date as follows: 11/21/2014 FRl 14:17, and the same fax machine
# [TX/RX NO 6483j.
6.
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§§ O‘/§»~©/
No. 60527-A EX PARTE RECE\\/ED\N § IN THE DISTRICT coURT COURT OF CR\W“NAL APPEALS § EC 312[31!% ` § 0F BRAZORIA -cOUNTY, TEXAS D § , SHANNON COLE S%Ilrgcosta C\erk § 23RD JUDICIAL DISTRICT A e ), `
RESPONSE IN TRAVERSE TO STATE'S FINDINGS OF FACT
TO THE HONORABLE JUSTICES OF THE COURT OF CRIMINAL APPEALS:
n Pursuant to the State's Findings of Fact entered December 3, 2014 in the 23rd Judicial District Court of Brazoria County, as ordered by this Honorable Court of Record, Applicant Shannon Cole Smith, hereinafter styled, "Applicant," presents his Response in Traverse with Affidavit of Fact in Support contesting the following:
l. , DEFICIENCIES IN ARREST WARRANT
11 First and foremost, in order for an arrest warrant received by teletype (telegraph) the law is absolutely clear pursuant to Texas Code of Criminal Procedmre, Article 15.12, titled: "Warrant or Com- plaint Must Be Under Seal," the statute clearly states: "No manager of telegraph office shall receive and forward a warrant or complaint unless the same shall be certified to under seal of a court of re- cord or by a justice of the peace, with the certificate under seal of a court of record or by justice of the peace, with certificate under seal of the district or county clerk of his county that he is a legally qualified justice of the peace of such county, nor shall it be lawful for any magistrate to endorse a warrant received by telegraph, or issue a warrant upon a complaint received by telegraph, unless all requirments of law in relation thereto have been fully complied with." Tex..Code of Crim. Proc., Art. 15.12 (Vernon's).v 2. _Second, the produced "warrant" the State has presented to the
Honorable Court is extremely questionable for the following reasons:
a. The Alvin Police Department alleges in the Findings of Fact that it was in possession of anarrestwarrant for the Applicant
Response in Traverse Pa£€ 1
"for the offense of Felony Larceny of a Motor Vehicle out of North Carolina at the time Officers from that agency entered the Appli-
cant's motel room and found him in bed with...."
(See Findings ofl Fact at page 1).
b. lf, in fact, the Alvin Police Department was in possession of said arrest warrant at the time Officers from that agency entered the Applicant's motel room, why did the agency have to procure a faxed copy of the alleged warrant for arrest from North Carolina,
or rather, the Brazoria County District Attorney, on 11/07/2014 at 09:51; again at 11/21/2014 FRI at 14:07; and yet again on 11/21/2014 FRI at 14:17?
c. This "warrant" which the State has produced is "cheap as press- on nails and Applicant could have done a much better job of forging such a thing! This warrant is not even signed by a magistrate, as required, a typed name of a Brandon J. Freeman, without more cannot be deemed signatory and lawful. The warrant does not contain the seal of the court of record or justice of the peace, being a legal- ly qualified justice of the peace, with certificate under seal of the district or county clerk of his county certifying that he is a legally qualified justice of the peace of such county, According to. the lawful requirements of Art. 15.12, supra, endorsement is required and no such endorsement may be placed on a warrant received by tele- graph unless all requirements of law in relation thereto have been fully complied with. (See Art. 15.12, T.C.C.P., supra)
d. The ¥warrant" produced by the State for the Honorable Court
is defective in many ways, but the worst defect is the fact it is not under seal nor certified to by a court of record or by a just- ice of the peace. Not only is it not signed by a magistrate from Buncombe County, North Carolina, it clearly smells like a rat!
e. Finally, and this is going to raise some hairs on the back of some necks, Applicant owned the vehicle alleged stolen from Angela Cherie Smith, as this is his lawful wife! (See attached Certificate of Marriage out of Brazoria County, Texas, dated November 8, 1998). Surely, when Mrs. Angela Smith was filing the report of a stolen vehicle, someone, anyone, asked her if she was related to Shannon` Cole Smith! Applicant purchased the vehicle in North Carolina from
his in-laws family and put the vehicle in his wife's name. He did
Response in Traverse page 2
drive the vehicle to California, then to Texas, where he was arrest- ed for being in possession of "community property" purchased while
he and the alleged complainant were "legally married,"
and they are Still legally married! Having married in Texas, any item purchased while legally married is "community property" and neither party to
the marriage can allege separate ownership to said item purchased!
Applicant need not take the Honorable Court down "Family Law" lane to support his contention. f. Why didn't anyone bother to check if Applicant was the owner
of the vehicle by law? Who would accept an affidavit of probable cause from the alleged Complainant, Angela Cherie Smith, without asking her if she was legally married to the alleged defendant? lf, in fact, an arrest warrant even exists for Applicant as Warrant No. WA66166@, out of the State of North Carolina, someone needs to put that State on notice that Applicant is legally married to the alleged complainant and that the vehicle she alleges he stole from her is his. Someone needs to explain the law of community property to the backwards State of North Carolina, as Applicant is guilty of nothing in the form of violation of law in driving his own truck to California and then to Texas, even if it was without the effective consent of his lawful wife! Unless the State can present proof of claim that the vehicle in question was "separate property" of the alleged complainant, the lack of clean hands; lack of subject matter jurisdiction; and personal jurisdiction; to include lack of fair dealings demands that Applicant be immediately released from custody and that he be compensated for his wrongful conviction and confine- ment. (See Applicant's Affidavit of Fact, attached) ll. PRAYER
3. Applicant prays that this Honorable Court demand that the State produce the alleged arrest warrant under seal it allegedly received from the justice of the peace or from the court of record the telegraph manager took it to to get said certification. The warrant produced by the State is dated after the fact and cannot be deemed "evidence" in the habeas record or trial court record, as a
violation of the rules of evidence and right to confrontation and
Response in Traverse page 3
cross-examination occurred when Applicant was denied the right to question the alleged certification and possession of the warrant
for arrest at the time officers entered the motel room.
4. Applicant would also like to point out that Officer Jason Shoemake's Affidavit of Fact at paragraph 5 where the officer states that "Officers attempted to make verbal contact with Smith inside. After no response from inside the room, l used the hotel key to open
the door..., is inconsistent with the Original Complaint's set of facts, as in that Complaint, Officer Shoemake states he knocked on the door and stated "POLICE DEPARTMENT. After a few seconds l did not hear a response from inside so l swiped the room key and the green light came on indicating that the door was open...." 5. Applicant would also ask the Honorable Court to have the State explain why Officer Shoemake's Affidavit also has the same fax time and date as follows: 11/21/2014 FRl 14:17, and the same fax machine
# [TX/RX NO 6483j.
6. lt is obvious that the arrest warrant lacks the proper lawful requirements of certification and seal from the appropriate court of record or justice of the peace to have been used to arrest the Appli- cant and that it lacks a signature of some magistrate on the warrant itselfj as well as the fact Applicant is legally married to the al- leged complainant, and said marriage was out of Brazoria County, Texas. Surely this is the final nail placed into the coffin of the State's case against the Applicant.
Applicant never committed any crime against the laws of North Carolina or Texas and he is actually innocent of having committed Felony Larceny of his own property. For the foregoing reasons Appli- cant prays for habeas corpus relief and an instruction from the Court that an Order of Acquittal be entered in said case.
So PRAYED this milde of De¢ember, 2014.
Respectfully ubmitted,
%CE
Shannon Cole mithu #1623938 James A. Lynaugh Unit v
1098 S. Highway 2037
Fort Stockton, Texas 79735
Response in Traverse page 4
DECLARATION
l, Shannon Cole Smith, TDCJ-ID #1623938, being presently in- carcerated at the James A. Lynaugh Unit of TDCJ-ID, declare under penalty of perjury that the foregoing facts are true and correct.
Z@_‘;;;BM lmst
Shannon Cole Smith
Applicant Pro Se
cERTIFIcATE oF SERVICE
l certify that a true and correct copy of the foregoing with exhibits was sent to the attorney for the State by placing the same
in a postage prepaid envelope and mailing it to the address as fol-
lows:
Honorable David Bosserman Assistant District Attorney 111 E. Locust, Suite 408A Angleton, Texas 77515
Attorney for the State
360 v t §1,,;1°>93»? Shannon Cole Smith Applicant Pro Se
Response in Traverse page 5
STATE OF TEXAS
COUNTY OF PECOS
C/.`/>¢/.`/J¢/.`/>
AFFIDAVIT OF FACT OF SHANNON COLE SMITH
1. My name is Shannon Cole Smith, TDCJ-lD #1623938, l am over
18 years of age and able to make this affidavit of fact based uponf personal knowledge of the facts contained hereinu
2. l am currently incarcerated at the James A. Lynaugh Unit of the Texas Department of Criminal Justice, Correctional lnstitutions Division, located at: 1098 S.'Highway 2037, Fort Stockton, Pecos d County, Texas 79735.
3. . l attest that l was lawfully married to Angela Cherie Hill, D.O.B. 10/30/1978, on November 8, 1998 in Brazoria County, Texas. ` 4. l further attest that my wife and l purchased the black, 1999
Ford truck in question from her family in North Carolina while we were legally married.
5. l attest that l drove the truck to California to go work there shortly after we purchased the truck and that l drove the truck to Texas where l was inadvertently arrested, allegedly for being in possession of a stolen truck.
6. l attest l did not give any police officer consent to enter the motel room which had a locked door and l did not give consent
to the motel manager to enter the room or authorize anyone else to enter the room.
7.'. l attest that l was never presented any "warrant" nor any "affidavit" in support of said warrant by any officer after my ar- rest. n
8. l attest that l am still legally married to Angela Cherie Smith and am the lawful owner of the 1999 Ford truck in question, though l do notknowits whereabouts at this time.
9. l attest that l gave no statements voluntarily nor freely to any law enforcement officer, but was subject to interrogation after
unlawful entry was gained in to my motel room by Alvin Police.
Affidavit of Fact page 1
10. l attest that l am the Applicant in habeas corpus action No. 60527-A out of the 23rd Judicial District Court of Brazoria County, Texas. w
11. l attest that l have reviewed the "warrant" the State is try- ing to use to support the unlawful arrest on July 18, 2009, and that l find it does not contain a magistrate's signature nor the certifi- cation under seal required from said telegraph managerls office in having taken said warrant to a court of record or justice of the peace to certify it under seal pursuant to Art. 15.12,,Texas Code
of Criminal Procedure.
12. l attest that being the owner of the 1999 Ford truck in ques- tion, l cannot be charged with stealing my own property and there- fore no lawful authority existed, nor can police allege any good faith; clean hands; or fair dealings in having violated my consti-
tutional right to privacy in entering my motel room without my con-
Sent.
Further affiant saith not.
Executed this uii~day of December, 2014 in Pecos County, Texas.
z<(f>§vuvaii \t;f-s%>? f
Shannon Cole Smith Affiant Pro Se
I, Shannon Cole Smith, TDCJ-ID #1623938, being presently in- carcerated at the James A. Lynaugh Unit of TDCJ-ID, declare under
penalty of perjury that the foregoing facts are true and correct.
%'€‘°%\:[(/, \tz”><)*§r
Shannon Cole Smith TDCJ-ID #1623938
James A. Lynaugh Unit
Fort Stockton,\Texas 79735 Affiant Pro Se
Affidavit offFact ' page 2 of 2
V\/e||ness P|us pharmacy 8326047420 p.‘|
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AFFIDAVIT
THE STATE OF TEXAS COUNTY OF BRAZORlA
[PRlNT the name of the county where this statement is being notarized.]
BEFORE ME, the undersigned authority, on this day personally appeared cherie Hiu-smith ,Who
[PRINT the first and last names of the person who will sign this statement.]
swore or affirmed to tell truth, and stated as follows:
"My name is Cherie Hi|l-Smith [PR]NT the am and last names °fthe P€rSOn who will sign this statement.]
l am of sound mind and capable of making this sworn statement l have personal knowledge of
the facts written in this statement l understand that if I lie in this statement l may be held
criminally responsible This statement is true.
from my husband Shannon Cole Smith who was in Alvin, TX, l only spoke to the
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State ot`Texas County of wm [name of county where statement is notarized]
SWORN nd SUBSC BED before me the undersigned authority, on :, theéé_ ’day of , O? 0 / :/ )'€ar, by
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vi
3:001’!4
MARRIAGE LICENSE l nm STATE OF mims
l ' ootm'nr 01=' nmzonm Ta any Perxan authorized by the Law.¢ of the State al Ttx¢u to ccl¢broto the R¢'Ie.r al Motn'mony in the S¢ot¢` of Te.ra:- - GRE£TING: _ YOU ARE HEREBY AUTHOR!ZED TO SOLEMN!ZE THE R!TES OF MATRIMONY BETWEEN Mr SHA!|NON COLE SMITH and M ANGE[.A CHERIE HILL
and make due return to the Clerk ol the Coun¢y Court of said County within thirty days thereafter, certifying your action under this Li'ren.\'s.
erEs$ my affidalsignacm amici ama ar A»glmn, Tm¢, em 29 day 01 OC'I’OBER 10 98 ay .......... s . ifr/fullle .......................... o¢;my. ooLLY BA!LEY
ANET sANI)r.Rsr
.(L' ) JANET SANDIiRS(SEAI’.-) Clrrk of Co¢mty Court, Brasan'a County, Trxo.r. l hrr¢%certi]y that an the am day of NQVMER 19 98 at mTchocK mims “ f`o¢mtv, T¢xo.r, l united in Marriage the par!ie: above nomrd. GIVEN won my hand, eh;. 8'1'11 day ,,, novmmt:n m 98 1 =oonr "" tecum.J.t_l‘zlpna;v.n”sa......_......msma...._.....~m;.._...-,,.. m v O.H» HITCBCOCK BAPTIST CHU'RCH taken R¢turmd and recorded the 12 day of No DBER 19 98 , ' DOLLY BAJLEY 331 Q?Ml;i Gi/}'Yl¢,i i)/D/ P¢pury. - Clcrk Coun¢y Court.
sTATE oF TEXAS_ . COUNTY or BRAZQR;A _ . 1 l certify that t/ie a501)e am[fomoina is a fu[f true amf correct vhotoaravhic cory oft/ie oriaina[reconf