Paselk, Ex Parte Carol ( 2015 )

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,
Petitioner
v.
STATE OF TEXAS
Respondent
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 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. Crim. 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. Crim. 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. Crim. 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 S.W.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. Crim. 551, 1 S.W2d 892 (1928)
Solon v. State, 5 White & W. 301 (1878)
State v. Roberts, 940 S.W.2d 655 - Tex: Court of Criminal Appeals 1996
Stine v. State, 908 S.W.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. Crim. 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 S.W.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 S.W.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. Crim.
362, 8 S.W.2d 674. 675, 676 (1928), See also Solon v. State. 5 White & W. 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. Crim. 475, 56 S.W2d 190 (1933); Bra22v. State. 109 Tex. Crim. 632, 6 S.W2d 365
(1928); Parrv. State. 108 Tex. Crim. 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. Crim. 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 S.W.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
8
9
10
11
12
************************ * * * * *
13
TRIAL ON MERITS
14
*****************************
15
16
17
COPY
18
19
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
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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
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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 ^tVillamieva, 252 S.W.3d at 394. "Some remedies available to an applicant in that situation are to ^iMWfettfot
application to another district judge having jurisdiction, or under proper circumstances, to pursue a writ of
mandamus." Hargett, 819 S.W.2d at 868 (citations omitted); see Villanueva, 252 S.W.3d at 394. OCT Ql 201 ty
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