Paselk, Ex Parte Carol

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.Cr.R. 632, 6 S.W.2d 365 (1928) Camacho v. Samaniego, 831 S.W.2d 804, 811 (Tex. 1992). Cleveland v. Ward, 116 Tex. 1, 285 S.W. 1063 (1926) Ex parte Adams, 768 S.W.2d 281, 293 (Tex. Crim. App. 1989) Ex parte Armstrong, 110 Tex.Cr.R. 362, 8 S.W.2d 674, 675, 676 (1928) Exparte Beck, 922 S.W.2d 181 (Tex.Crim. App. 1996) Ex parte Caldwell, 383 S.W.2d 587, 589 (Tex.Cr.App. 1964) Ex parte Drake, 883 S.W.2d 213, 215 (Tex.Crim.App.1994) Ex parte Paprskar, 573 S.W.2d 525 (Tex.Cr.App. 1978) Ex parte Sandoval Ex parte Seidel, 39 S.W.3d 221, 224, 225 at n. 4 (Tex.Crim.App.2001). Ex parte Vasquez, 122 Tex.Cr.R. 475, 56 S.W.2d 190 (1933) Garcia v. Dial, 596 S.W.2d 524 (Tex.Cr.App. 1980) Gill v. Snow, 644 S.W.2d 222, 224 (Tex. App. 1982, no writ) Glenn v. Dallas County Bois D'Arc Island Levee Dist., 282 S.W. 339 (Tex.Civ.App.1926) Granger v. Folk, 931 SW 2d 390, Tex: Court ofAppeals, 9th Dist. (1996) IndustrialFoundation of The South v. Texas IndustrialAccident Board, 540, S.W.2d 668, 682 (Tex. 1976) Marin v. State, 851 S.W.2d 275, 280 (Tex.Crim.App.1993) Moore v. State, 821 S.W.2d 429, 431 (Tex.App.—Waco 1991, no pet); Petition For Discretionary Review page 3 of27 pages Mx v. State, 65 S.W3d 664, 673, (Tex.Crim.App.2001) Parrv. State, 108 Tex.Cr.R. 551, 1 S.W2d 892 (1928) Solon v. State, 5 Tex.App. 301 (1878) State v. Roberts, 940 SW 2d 655 - Tex: Court of Criminal Appeals 1996 Stine v. State, 908 SW 2d 429 - Tex: Court of Criminal Appeals 1995 Stoker v. State, 788 S.W.2d 1, 10 (Tex.Crim.App.1989) Walker v Packer, 827 S.W.2d 833, 840 (Tex. 1992). Woodardv. State, 86 Tex.Cr.R. 632, 218 S.W 760 (1920) United States: Griswald v. Conneticut, 381 U.S. 479 (1965) Kinnardv. U.S., 313 F.3d 933, 2002 FED App. 0427P (6th Cir. 2002) Klugh v. U.S., 620 F.Supp. 892 (D.S.C. 1985) Mapp v. Ohio, 367 U. S. 643 (1961) Moore v. Illinois, 408 U. S. 786, 810 (1972) (opinion of MARSHALL, J.) Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) United States v. San Filippo, 564 F.2d 176, 178 (5th Cir. 1977) Valley v. Northern Fire & Marine Ins. Co., 254 U.S. 348, 41 S.Ct. 116 (1920) Wiggins V.Smith, 539 U.S. 510, 123 S. Ct. 2527, 156 L. Ed. 2d 471 (2003) Yarborough v. Gentry, 540 U.S. 1, 124 S. Ct. 1, 157 L. Ed. 2d 1 (2003) Michigan: Fritts v. Krugh, 92 N.W.2d 604, 354 S.Ct. of Mich. 97. (1958). Oregon: State ofOregon v. Amanda Newcomb, Multnomah County Circuit Court, 110443303, A149495 (2014) Petition For Discretionary Review page 4 of27pages Constitution: United States Constitution: Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments Article 1, Section 9 of the Texas Constitution Article 1, Section 10 of the Texas Constitution Article 1, Section 12 of the Texas Constitution Article 1, Section 14 of the Texas Constitution Article 1, Section 19 of the Texas Constitution Article 5, Section 19 of the Texas Constitution Statutes and Rules: Texas Code of Criminal Procedure §18.10, §18.11 Texas Government Code § 25.1142 Texas Health & Safety Code § 821.0211 Texas Penal Code § 42.09 Texas Rules of Appellate Procedure, 66.3(b)(c) Fed. Rules Civ. Proc, Rule 60(b)(4), Petition For Discretionary Review page 5 of27pages IMMEDIATE RELEASE REQUESTED FROM ALREADY NULL AND VOID JUDGMENTS Petitioner Carol Paselk contends that the judgments of conviction against her are already null and void. "Habeas corpus is reserved for those instances in which there is a jurisdictional defect in the trial court which renders the judgment void or for denials of fundamental or constitutional rights)." Ex parte Drake, 883 S.W.2d 213. 215 (Tex.Crim.App.1994) "The writ of habeas corpus, for example, is available to set aside a criminal conviction on the basis of any jurisdictional defect in the proceedings which led to it, no matter how remote in time." Stine v. State. 908 SW 2d 429 - Tex: Court of Criminal Appeals 1995. "This Court has long held that habeas corpus is an appropriate remedy to attack a void judgment or sentence." See Ex parte Seidel, 39 S.W.3d 221, 224, 225 at n. 4 (Tex.Crim.App.200n; Ex parte Beck 922 S.W.2d 181 (Tex.Crim. App. 1996); Petition For Discretionary Review page 6 of27pages STATEMENT REGARDING ORAL ARGUMENT Petitioner requests oral argument. Argument would assist the Court because resolution of the grounds for review depends upon a detailed exploration of the facts of the cases. Further, oral argument would provide this Court with an opportunity to question parties regarding their positions. STATEMENT OF THE CASE: Petitioner's Petition For Writ of Habeas Corpus was denied by the 8th Judicial District Court without a hearing. The Court of appeals upheld the denial. Petitioner contends that the judgments of conviction are already null and void. According to Texas Health & Safety Code § 821.0211, the particular "Judge", who issued the judgments of conviction, is lawfully excluded by the Legislature from presiding over allegations of cruelty to a livestock animal. As a result of the Legislature's exclusion of this particular "Judge" to preside over allegations of cruelty to a livestock animal, the Judgments of conviction are already null and void, for lack ofjurisdiction. The 6th District Court ofAppeals did NOT consider or even comment on the fact that this particular "Judge", of the Hopkins County Court At Law, is excluded by the Legislature from presiding over allegations of cruelty to a livestock animal, because she "gives preference to family law matters.''' Beyond the fact that this "Judge" of the Hopkins County Court At Law is Petition For Discretionary Review page 7 of27pages excluded by the Legislature from presiding over allegations of cruelty to a livestock animal, the 6th Court ofAppeals failed to consider the ineffective assistance of both the court appointed defense and appeal counsel, and that the "Judge" of the Hopkins County Court At Law also allowed inadmissible evidence and hearsay to be used to obtain conviction against Petitioner Paselk. STATEMENT OF PROCEDURAL HISTORY The judgments of conviction were entered on October 29, 2009. Petitioner filed a Petition For Habeas Corpus with the 8th Judicial District Court on April 18,2014. The 8th Judicial District Court denied Paselk's Petition For Writ of Habeas Corpus without a hearing. Petitioner Paselk mailed her Appellant's Amended Brief to the 6th District Court ofAppeals in Texarkana on July 25, 2014. The Court ofAppeals denied Paselk's Petition For Writ of Habeas Corpus, even though the judgments of conviction are already null & void. REASONS FOR REVIEW The 6th Court ofAppeals failed to consider that the misdemeanor convictions against this Petitioner are already null and void because the "Judge" of the Hopkins County Court At Law is excluded by the Legislature from presiding over allegations of cruelty to a livestock animal. The 6th Court of Appeals failed to consider that Petition For Discretionary Review page 8 of2 7pages inadmissible evidence and hearsay were used to obtain convictions against this Petitioner. The 6th Court of Appeals failed to consider that convictions against Petitioner Paselk were obtained because of the ineffective assistance of counsel. The 6th Court of appeals did not discharge its sworn duty to defend and uphold the rights of this Petitioner protected and guaranteed by the U.S. Constitution, and the Texas Constitution. 1. The Appellate Court erred in not considering that the Texas Legislature has lawfully excluded the "Judge" of the Hopkins County Court At Law from presiding over allegations of cruelty to a livestock animal. Tex. R.App.P. 66.3(b) 2. The Court ofAppeals failed to consider important questions of state law that have not been, but should be, settled by this Court. Tex.R.App. P. 66.3(b) 3. The Court ofAppeals failed to consider important questions of state and federal law in conflict with applicable decisions of the Supreme Court of the United States. Tex.R.App. P. 66.3(c) 4. The Appellate Court erred in not considering the fact that because of ineffective assistance of council, exculpatory evidence was not presented to the jury and court, and inadmissible evidence was admitted by the court. I. The Appellate Court erred in not considering that the Texas Legislature has excluded the "Judge" of the Hopkins County Court At Law from presiding over allegations of cruelty to a livestock animal. Tex. R.App.P. 66.3(b), making the Petition For Discretionary Review page 9 of27pages judgments of conviction already null and void. The Court ofAppeals failed to consider that the judgments of conviction against Petitioner Paselk are already null and void because the "Judge" of the Hopkins County Court At Law is excluded by the Legislature from presiding over allegations of cruelty to a livestock animal. This case confirms the Texas Supreme Court's statement: "This Court has previously voiced its concerns over the difficulties created for the bench, the bar, and thepublic by thepatchwork organization of Texas' several trial courts. As Thomas Paine observed: "[T]he more simple anything is, the less liable it is to be disordered, and the easier repaired when disordered. Paine, Common Sense 3 (1776). This case is yet another confirmation that "confusion and inefficiency are endemic to a judicial structure with different courts ofdistinct but overlappingjurisdiction." Camachov. Samanieso. 831 S.W2d 804, 811 (Tex.1992). The Court ofAppeals failed to consider that the judgments of conviction against Petitioner Paselk are already null and void because the "Judge" of the Hopkins County Court At Law is excluded by the Legislature from presiding over allegations of cruelty to a livestock animal. Texas Government Code § 25.1142 gives the Judge of the Hopkins County Court At Law the same jurisdiction and authority as a District Court Judge. The "Judge" of the Hopkins County Court At Law "gives preference tofamily law matters," by agreement with the Judges of the 8th Judicial District Court1 and the 1 Texas Government Code § 24.108. 8TH JUDICIAL DISTRICT (DELTA, FRANKLIN, HOPKINS, AND RAINS COUNTIES), (a) The 8th Judicial District is composed of Delta, Franklin, Hopkins, and Rains counties. Petition For Discretionary Review page 10 of27pages 62nd District Court2. Texas Health & Safety Code § 821.0211 excludes Judges "who give preference tofamily law matters", which is clearly a protection and safeguard for livestock owners, codified by the Legislature. Texas Health & Safety Code, Chapter 821, Subchapter B, Section 821.0211 ADDITIONAL DEFINITION,3 clearly excludes "district courtjudges who give preference tofamily law matters" from presiding over matters of cruelty to livestock animals. There is no ambiguity in the language codified by the Legislature. "If a statute is clear and unambiguous, we give effect to its plain meaning." Bovkin v. State, 818 S.W2d 782, 785 (Tex.Cr.App. 19911 In Granger v. Folk, 931 SW 2d 390, Tex: Court ofAppeals, 9th Dist. (1996), the Texas Court ofAppeals shows the union of Texas Health & Safety Code § 821 and Texas Penal Code § 42.09, stating: "Clearly, two avenues existfor the State in protecting animals from cruel treatment, i.e., criminal prosecution under Section 42.11 ofthe Penal Code and the civil remedyprovided under Section 821.023 ofthe Health and Safety Code. A close reading ofparagraphs (a) and (b) ofSection 821.023 may provide some slight illumination. Paragraph (a) presumes a criminal proceeding prior to the civil proceeding while paragraph (b)presumes the reverse. Obviously, in the criminal proceeding, a defendant mayface loss of 2 TEXAS GOVERNMENT CODE § 24.164. 62ND JUDICIAL DISTRICT (DELTA, FRANKLIN, HOPKINS, AND LAMAR COUNTIES), (a) The 62nd Judicial District is composed of Delta, Franklin, Hopkins, and Lamar counties. 3 Texas Government Code § 821.0211. ADDITIONAL DEFINITION. In this subchapter, "magistrate" means any officer as defined in Article 2.09, Code of Criminal Procedure, except that the term does not include justices of the supreme court, judges of the court of criminal appeals, or courts of appeals, judges or associate judges of statutory probate courts, or judges or associatejudges of district courts that give preference to family law matters or family district courts under Subchapter D, Chapter 24, Government Code. Petition For Discretionary Review page 11 of27pages freedom orfine or both, whereas, a proceeding under Section 821.023 may subject the defendant to a loss, forfeiture and confiscation ofproperty rights and interests. In either case, the defendant is entitled by right to all those guarantees offordingfull due process. " [Petitioner contends that 42. II4 refers to "destruction oftheflag", and is a typographical error which is actually meant as 42.09.] The "Judge" of the Hopkins County Court At Law had the duty and responsibility to transfer the case against this Petitioner to one of the two District Courts or even to the County Court, all of which do NOT "give preference tofamily law matters", and thereby have constitutional and statutory jurisdiction provided by the Legislature to preside over allegations of cruelty to a livestock animal. "Trial court jurisdiction over a case is an absolute systemic requirement." Marin v. State, 851 S.W.2d 275, 280 (Tex.Crim.App. 1993). "Unless the power or authority of a court to perform a contemplated act can be found in the Constitution or laws enacted thereunder, it is without jurisdiction and its acts without validity." Ex parte Armstrong, 110 Tex.Cr.R. 362, 8 S.W.2d 674. 675, 676 (1928), See also Solon v. State. 5 Tex.App. 301 (1878). The Court ofAppeals failed to consider that the "Judge" of the Hopkins County Court At Law is excluded by the Legislature from presiding over allegations of cruelty to a livestock animal. A threshold issue in any case is whether the court has the 4 Texas Penal Code, Sec. 42.11. DESTRUCTION OF FLAG, (a) A person commits an offense if the person intentionally or knowingly damages, defaces, mutilates, or burns the flag of the United States or the State of Texas. Petition For Discretionary Review page 12 of27pages jurisdiction to resolve the pending controversy. In Ex parte Armstrong, 110 Tex.Crim. 362, 8 S.W2d 674 (App. 1928), the Court upheld, "... This issue ofjurisdiction is fundamental and cannot be ignored. Accordingly, a court may sua sponte address the issue because subject matter jurisdiction cannot be conferred by agreement of the parties; jurisdiction must be vested in a court by constitution or statute. Garcia v. Dial, 596 S.W2d 524, 527 (Tex.Cr.App. 1980): and, Ex parte Caldwell. 383 S.W.2d 587, 589 (Tex.Cr.App. 1964). In short, each court has jurisdiction to determine whether it has jurisdiction. Ex parte Paprskar, 573 S.W2d 525 (Tex.Cr.App. 1978). The Court ofAppeals failed to consider that the "Judge" of the Hopkins County Court At Law clearly abused her discretion by presiding over the trial against this Petitioner for allegations of cruelty to a livestock animal, for which she is excluded by the Legislature. "An abuse of discretion occurs if the trial court clearly failed to analyze or apply the law correctly." Walker v Packer, 827 S.W2d 833, 840 (Tex. 1992). The Court ofAppeals failed to consider that Petitioner was denied the protection and safeguard that the Legislature codified under § 821.0211, excluding judges "who give preference tofamily law matters", to insure the fair administration of justice, and to insure a fair and impartial tribunal. This Petitioner was denied her guaranteed rights to lawful due process of law protected by the Fifth and Fourteenth Amendments of the United States Constitution, as well as Article 1, Section 19 of the Texas Constitution. The "Judge" of the Hopkins County Court At Law is excluded by the Legislature from Petition For Discretionary Review page 13 of27pages issuing judgments of conviction in matters alleging animal cruelty because she gives "preference to family law matters", therefore the judgments of conviction against this Petitioner are already null and void, and must be reversed and vacated. II. The Court of Appeals failed to consider important questions of state law that have not been, but should be, settled by this Court. Tex.R.App. P. 66.3(b) As clearly shown above, this Honorable Court must decide a very important question of state law that was not settled by the Court ofAppeals. This Court must settle the question whether the "Judge" of Hopkins County Court At Law is excluded from presiding over allegations of cruelty to a livestock animal. This Court must settle the question whether the judgments of conviction against this Petitioner are already null and void for lack of the "Judge's" subject matter jurisdiction. According to Texas Health & Safety Code 821.0211, the "Judge" of the Hopkins County Court At Law, who gives "preference tofamily law matters" by agreement with the Judges of the 8th and 62nd Judicial District Courts, is excluded by the Legislature from presiding over allegations of animal cruelty. The question of the jurisdiction of the convicting court may be raised at any time. See Bass v. State, All S.W2d 624, 626 (Tex.Cr.App. 1968); Ex parte Vasquez. 122 Tex.Cr.R. 475, 56 S.W2d 190 (1933); Bra22v. State. 109 Tex.Cr.R. 632, 6 S.W2d 365 (1928); Parrv. State. 108 Tex.Cr.R. 551, 1 S.W.2d 892 (1928); Woodardv. State, 86 Petition For Discretionary Review page 14 of27pages Tex.Cr.R. 632, 218 S.W 760 (1920). "Judicial action without jurisdiction is void." Cleveland v. Ward. 116 Tex. 1, 285 S.W 1063 (1926). "Judgment which court is without jurisdiction to render is void." Glenn v. Dallas County Bois D'Arc Island Levee Dist.. 282 S.W 339 (Tex.Civ.App.1926). "Void" convictions should be defined as those in which the trial court lacked jurisdiction over the person or subject matter or in which the trial judge lacked qualification to act in any manner. See, e.g., Ex parte Seidel, 39 S.W.3d 221, 226-27 (Tex.Crim.App.2001) (Womack, J., dissenting, joined by Keller, P.J. & Meyers, J.). See also Nix v. State. 65 S.W3d 664, 673, (Tex.Crim.App.2001) (discussing "void" judgments and categorizing them in a "nearly exclusive" list as: "(1) the document purporting to be a charging instrument (i.e. indictment, information, or complaint) does not satisfy the constitutional requisites of a charging instrument thus the trial court has no jurisdiction over the defendant; (2) the trial court lacks subject matter jurisdiction over the offense charged, such as when a misdemeanor involving official misconduct is tried in a county court at law; (3) the record reflects that there is no evidence to support the conviction; or (4) an indigent defendant is required to face criminal trial proceedings without appointed counsel, when such has not been waived, in violation of Gideon v. Wainwrighf) (footnotes omitted). "Jurisdiction may be concisely stated to be the right to adjudicate concerning the subject matter in a given case. [Citation omitted] Unless the power or authority of a Petition For Discretionary Review page 15 of27pages court to perform a contemplated act can be found in the Constitution or laws enacted thereunder, it is without jurisdiction and its acts without validity." Ex parte Armstrong, 110 Tex.Cr.R. 362, 8 S.W2d 674, 675, 676 (1928), "Jurisdiction of the subject matter cannot be conferred by agreement; this type ofjurisdiction exists by reason of the authority vested in the court by the Constitution and statutes. Ex parte Caldwell, 383 S.W2d 587 (1964); Morrow v. Corbin. 122 Tex. 553, 62 S.W2d 641 (1933); Ex parte Armstrong, supra. "Furthermore, it is likewise axiomatic that where there is no jurisdiction, the power of the court to act is as absent as if it did not exist," Ex parte Caldwell, supra at 589, and any order entered by a court having no jurisdiction is void. E. g., Ex parte Sandoval, supra; Ex parte Armstrong, supra. "Judgment is a void judgment if court that rendered judgment lacked jurisdiction of the subject matter, or of the parties, or acted in a manner inconsistent with due process," Fed. Rules Civ. Proc, Rule 60(b)(4), 28 U.S.C.A., U.S.C.A. Const. Amend. 5 - Kluzh v. U.S., 620 F.Supp. 892 (D.S.C. 1985). "A void judgment, order or decree may be attacked at any time or in any court, either directly or collaterally" - The law is well-settled that a void order or judgment is void even before reversal. Valley v. Northern Fire & Marine Ins. Co., 254 U.S. 348, 41 S.Ct. 116(1920). "A "void judgment" as we all know, grounds no rights, forms no defense to actions taken there under, and is vulnerable to any manner of collateral attack (thus here, Petition For Discretionary Review page 16 of27pages by). No statute of limitations or repose runs on its holdings, the matters thought to be settled thereby are not res judicata, and years later, when the memories may have grown dim and rights long been regarded as vested, any disgruntled litigant may reopen the old wound and once more probe its depths. And it is then as though trial and adjudication had never been." Fritts v. Krugh. 92 N.W.2d 604, 354 S.Ct. of Mich. 97. (1958). Case law from Federal and state courts all clearly show that the judgments of conviction against this Petitioner are already null and void, because the Legislature has excluded this particular "Judge" who did not have the jurisdiction to preside over the trial against this Petitioner. III. The Court of Appeals failed to consider important questions of state and federal law in conflict with applicable decisions of the Supreme Court of the United States. Tex.R.App. P. 66.3(c) As shown above, the Court ofAppeals failed to consider that Petitioner Paselk's rights to lawful due process, guaranteed and protected by the 5th and 14th Amendments of the U.S. Constitution, have been seriously compromised as a result of the trial court's judgment of conviction against this Petitioner. I. The Court ofAppeals failed to consider that the Warrant For Animal Seizure is nothing more than a "General Warrant" which has been prohibited and outlawed by the 4th Amendment for over two hundred years.(C.R. pgs. 73-74) The Warrant violates Petition For Discretionary Review page 17 of27pages Petitioner Paselk's Constitutional, as well as statutory, rights and protections. (C.R. pgs. 73-74) The Warrant fails to name Thoroughbred horses, and geldings with were simply taken from Paselk's farm, and does NOT particularly describe any individual horse or location on the farm where any particular horse would be found. The Warrant violates Petitioner's rights to be free from unreasonable searches and seizures protected by the 4th Amendment of the U.S. Constitution and Article 1, Section 9 of the Texas Constitution, as well as directives for a lawful warrant found in Texas Code of Criminal Procedure, Chapter 18. Because the warrant is an outlawed and prohibited "general warrant" there is no admissible evidence. Photos taken six days AFTER the entire herd of horses were taken, show horses in good condition were taken with the "general warrant." (C.R. pgs. 77-82) (APPENDIX B) Nothing on the Warrant describes any particular horse. This means that no particular horse was the subject of the seizure, but rather law enforcement and County Attorney Dustanna Rabe picked through the entire herd of horses AFTER they were taken from Petitioner's farm, and AFTER these horses were subject to mishandling, and intentional alteration of their condition. No Veterinary evaluation was done of any horse BEFORE they were taken from the farm to establish the true condition of any horse BEFORE it was taken. II. The Court ofAppeals failed to consider that Testimony from State's witnesses Sgt. Tanner Crump, Melanie DeAeth, Pamela Dountas, and Chief Deputy Petition For Discretionary Review page 18 of27pages Ricky Morgan actually exonerates Petitioner Paselk from any allegations of cruelty to a livestock animal. After spending an hour and a half inspecting Paselk's farm and horses, Hopkins County Sheriff Department Sgt. Tanner Crump filed his official eyewitness report, stating "I do not feel that the horses are in need of immediate care or removal from the owner", (C.R. pg. 72) Crump further stated, "Not all of the horses were poor...Most of the horses that were poor were older horses and it is expected that they would not look as good as horses that were younger."(C.R. pg. 72) Six days later, with no further investigation and no contact with Paselk, Crump to filed his "Application For Warrant To Seize Animals" the language of which is in complete conflict with his official eyewitness report.(C.R. pgs. 73) Crump testified the reason he made the complete reversal of statements is because of second hand statements he received from Lt. Henry Turner that the "rescues" were withdrawing their support. Court Appointed Defense Counsel, Steve Lilley, failed to show the jury that there was no possible way the "rescues" could be withdrawing their support, because their testimony verified they gave only a very minimal "one time" during a four month period, verifying the State's witnesses were lying. See sworn testimony in Clerk's Record, pgs. 56-60 and Letters of Support, Clerks Record, pgs. 113-119. (SEE APPENDIX C for copies of the official court transcript pages.) (SEE ALSO APPENDIX A) "If the state knowingly presented perjured testimony, a writ Petition For Discretionary Review page 19 of27pages application can be granted." Exparte Adams, 768 S.W2d 281, 293 (Tex. Crim. App. 1989). "Due process is violated when the prosecutor although not soliciting false evidence from a government witness, allows it to stand uncorrected when it appears". United States v. San Filippo, 564 F.2d 176, 178 (5th Cir. 1977) One of the most basic elements of fairness in a criminal trial is that available evidence tending to show innocence, as well as that tending to show guilt, be fully aired before the jury; more particularly, it is that the State in its zeal to convict a defendant not suppress evidence that might exonerate him." See Moore v. Illinois, 408 U. S. 786, 810 (1972) (opinion of MARSHALL, J.). Throughout the trial, County Attorney Dustanna Rabe erroneously continued to make the jury believe that the "rescuers" had been supporting Paselk and feeding her horses for a long period of time. Lilley failed to object. Lilley failed to show the jury the TRUTH that the "rescues" were not "supporting" Paselk. Lilley failed to show the jury photos of hay purchased by Paselk. (SEE APPENDIX A) The TRUTH would have induced a reasonable doubt in the minds of the jurors to avoid conviction. Paselk had a Constitutionally protected right to a fair and impartial trial and these photos should have been shown to the jury. III. The Court ofAppeals also failed to consider that the judgments of conviction against Paselk were obtained as a result of serious "ineffective assistance of counsel". Paselk directs the Court to pgs. 36-61 of the Clerk's Record for a more indepth assessment of the ineffective assistance of counsel. Paselk's court appointed Petition For Discretionary Review page 20 of27pages defense counsel, Steve Lilley, and court appointed "appeals" counsel Gene Stump, both made errors so serious that they were not functioning as the "counsel" guaranteed by the Sixth Amendment", Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 CI 984); Kinnardv. US., 313 F.3d 933, 2002 FED App. 0427P (61" Cir. 2002), "and did not provide reasonably effective assistance," Strickland v. Washington. 466 U.S. 668. 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); "and in that counsel's performance fell below an objective standard of reasonableness" Wiggins v. Smith, 539 U.S. 510, 123 S. Ct. 2527. 156 L. Ed. 2d 471 (2003); Yarborough v. Gentry. 540 U.S. 1, 124 S. Ct. 1, 157 L. Ed. 2d 1 (2003); Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 CI 984); IV. The Appellate Court erred in not considering the fact that inadmissible evidence was admitted by the trial court. A fact that this honorable Court must consider before making any decision to grant or deny this Petitioner's Petition For Writ of Habeas Corpus is shown above in the contradictions of the testimony of four of the states witnesses under oath - Melanie DeAeth, Pamela Dountas, Sgt. Tanner Crump and Chief Deputy Ricky Morgan - which exonerates Petitioner Paselk. The Court of Appeals failed to consider that inadmissible evidence obtained through warrantless searchwas used against this Petitioner, in violation of her right to Petition For Discretionary Review page 21 of27pages privacy protected by the 14th Amendment. In Mapp v. Ohio, 367 U. S. 643 (1961), the Supreme Court held that evidence collected from an unlawful search be excluded from trial. The trial court "Judge" allowed as evidence blood and fecal samples that were "supposedly" obtained from horses "allegedly" taken from Paselk's farm property. There was NO lawful chain of custody of any of the "horses". No Veterinarian was on-site to professionally evaluate any of the horses BEFORE they were taken from the farm, therefore no "Beginning Chain of Custody" was ever established. "Proof of the beginning and the end of the chain will support admission of the evidence barring any showing of tampering or alteration." Stoker v. StateJSS S.W2d 1, 10 (1989). Without the establishment of the original condition of any of the horses BEFORE they were taken from the farm there is no possible way to prove that the horse were not subjected to the intentional tampering with their condition and the alteration of their condition AFTER they were removed from Paselk's farm. There was No control of the horses (the evidence) by either law enforcement or the court over the safe keeping of any of the horses taken from Paselk's farm, in violation of TCCP 18.10 and 18.11. The so called blood and fecal "samples" were authorized solely by private citizens, who had immediately removed horses, taken from Paselk's property, outside of the jurisdiction of Hopkins County without any Court order authorizing the removal and without any court order directing the manner of safe keeping for any of the horses.(TCCP 18.10 & 18.11) These private citizens had NO Petition For Discretionary Review page 22 of2 7pages court order or lawful authority to invade the body of any horse allegedly taken from Paselk's property and then conduct any "search and seizure" of any blood or fecal sample. This issue of the right to privacy was addressed in State ofOregon v. Amanda Newcomb, Multnomah County Circuit Court, 110443303, A149495 (2014). The Texas Court ofAppeals upheld the 8th Judicial District Court's denial of the Oregon Court of Appeal decision stating: "The Oregon case has no prededential value or effecdt on Petitioner's convictions..." Both the 8th Judicial District Court and the 6th District Court ofAppeals failed to consider that the blood and fecal samples used against this Petitioner were NOT obtained in any lawful manner, and violated this Petioner's right to Privacy protected and guaranteed by the United States Constitution. The Oregon case shows the very overt violation of Paselk's right to privacy. In Billinzs v. Atkinson, 489 S.W2d 858, 859 (Tex. 1973), "This right to privacy is so important that the United States Supreme Court has repeatedly deemed it to stem implicitly from the Bill of Rights. Our State courts have long recognized a civil cause of action for the invasion of the right to privacy and have defined such an invasion in many ways: As an intentional intrusion upon the solitude or seclusion of another that is highly offensive to a reasonable person, Gill v. Snow, 644 S.W2d 222, 224 (Tex.App.—Ft. Worth 1982, no writ); and as the right to be free from the wrongful intrusion into one's private activities in such manner as to outrage or cause mental suffering, shame or Petition For Discretionary Review page 23 of27pages humiliation to a person of ordinary sensibilities, Industrial Foundation ofthe South v. Texas Industrial Accident Board, 540 S.W.2d 668, 682 (Tex. 1976); Billings v. Atkinson, supra, at 859. In Griswoldv. Connecticut, 381 U.S. 479 (1965),, Justice Douglas articulated that although not explicit, the penumbras of the Bill of Rights contained a fundamental "right to privacy" that was protected by the 14th Amendment's Due Process Clause. Griswold's "right to privacy" has been applied to many other controversial decisions such as Eisenstadt and Roe v. Wade. Paselk's right to privacy was invaded by private citizens who had no court authorized authority to invade the bodies of horses taken from her farm and collect any blood or fecal samples. Without court authorization, any blood and fecal samples collected by private citizens in these unwarranted searches and seizures are not admissible as evidence. "Under our law, evidence is illegally secured if it is obtained in violation of the Constitution or laws of the United States or the Constitution or laws of the State of Texas. Tex.Code Crim.Pree. Art. 38.23." State v. Roberts. 940 SW 2d 655 - Tex: Court of Criminal Appeals 1996. Thus, Paselk's convictions, obtained by use of inadmissible evidence which was obtained thru the use of these unauthorized and unwarranted searches and seizures, conducted by unauthorized private citizens, are already null and void. Petition For Discretionary Review page 24 of27pages CONCLUSION The Appellate Court erred in not considering that the convictions against Petitioner Paselk are already null and void because: 1. The "Judge" of the Hopkins County Court At Law is excluded by the Legislature from presiding over allegations of cruelty to a livestock animal; 2. the Judge allowed inadmissible evidence obtained through unauthorized, warrantless search and seizure, conducted by private citizens who had no court authorized permission or authority, at trial to be used against this Petitioner, and in violation of her rights to lawful due process and protections of her rights to privacy. The Court ofAppeals also failed to consider that the judgments of conviction against this Petitioner were obtained using interpretation of state law which violate applicable decision of the Supreme Court of the United States. Finally, the Court ofAppeals failed to consider important questions of state law that have not been, but should be, settled by this Court. Petition For Discretionary Review page 25 of27 pages PRAYER This Petitioner prays that this honorable Court will grant her Petitioner For Writ of Habeas Corpus. This Petitioner prays that this honorable Court will find that the "Judge" of the Hopkins County Court At Law is excluded by the Legislature from presiding over allegations of cruelty to a livestock animal. This Petitioner prays that this Court will finally settle the question of law whether the "Judge" of the Hopkins County Court At Law is excluded by the Legislature from presiding over allegations of cruelty to a livestock animal because this particular "Judge" "gives preference tofamily law matters." This Petitioner prays this Court will find that the judgments of conviction against this Petitioner were obtained using inadmissible evidence, and that this Petitioner did not receive the "effective assistance" of counsel at trial and in appeal guaranteed by the Constitution. Petitioner prays that this Court will find that the judgments of conviction against Petitioner Paselk are already null and void, and that they be overturned. Respectfully Submitted, Carol Paselk, Pro Se Petitioner P.O. Box 1284 Emory, Texas 75440 (940)435-3210 Petition For Discretionary Review page 26 of27pages CERTIFICATE OF COMPLIANCE Pursuant to TRAP Rule 9.4(i)(3), in making this Certificate of Compliance, I am relying on the word count provided by the Libre Office 4.2.5.2 computer software used to prepare this document. In compliance with TRAP Rule 9.4(i)(2)(B), according to the Libre Office word-count function, this Amended Petition For Review, contains 6,108 words. In compliance with TRAP 9.4(e), the typeface used in this Brief is no smaller than 14-point, except for footnotes, which are no smaller than 12-point. Carol Paselk, Pro Se Appellant P.O. Box 1284 Emory, Texas 75440 CERTIFICATE OF SERVICE I certify that a true and correct copy of the foregoing "Petition For Discretionary Review" has been mailed via United States Postal Service mail to William Ramsay, Appellate Counsel for the/State of Texas, 110 Main Street, Sulphur Springs, TX 75482, on the / 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. v Justice Date Submitted: August 21, 2014 Date Decided: October 1,2014 Do Not Publish "In a case where a judge refuses to issue the requested writ ofhabeas corpus or denies an applicant th&iijc&ijcsjad hearing on the merits of his claim, an applicant's remedies are limited." Hargett, 819 S.W:94 ^t