Smith, Shannon Cole ( 2014 )


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  • §§ O‘/§»~©/
    No. 60527-A
    EX PARTE RECE\\/ED\N § IN THE DISTRICT coURT
    COURT OF CR\W“NAL APPEALS §
    EC 312[31!% `` § 0F BRAZORIA -cOUNTY, TEXAS
    D § ,
    SHANNON COLE S%Ilrgcosta C\erk § 23RD JUDICIAL DISTRICT
    A e ), ``
    RESPONSE IN TRAVERSE TO STATE'S FINDINGS OF FACT
    TO THE HONORABLE JUSTICES OF THE COURT OF CRIMINAL APPEALS:
    n Pursuant to the State's Findings of Fact entered December 3,
    2014 in the 23rd Judicial District Court of Brazoria County, as
    ordered by this Honorable Court of Record, Applicant Shannon Cole
    Smith, hereinafter styled, "Applicant," presents his Response in
    Traverse with Affidavit of Fact in Support contesting the following:
    l. ,
    DEFICIENCIES IN ARREST WARRANT
    11 First and foremost, in order for an arrest warrant received by
    teletype (telegraph) the law is absolutely clear pursuant to Texas
    Code of Criminal Procedmre, Article 15.12, titled: "Warrant or Com-
    plaint Must Be Under Seal," the statute clearly states: "No manager
    of telegraph office shall receive and forward a warrant or complaint
    unless the same shall be certified to under seal of a court of re-
    cord or by a justice of the peace, with the certificate under seal
    of a court of record or by justice of the peace, with certificate
    under seal of the district or county clerk of his county that he is
    a legally qualified justice of the peace of such county, nor shall
    it be lawful for any magistrate to endorse a warrant received by
    telegraph, or issue a warrant upon a complaint received by telegraph,
    unless all requirments of law in relation thereto have been fully
    complied with." Tex..Code of Crim. Proc., Art. 15.12 (Vernon's).v
    2. _Second, the produced "warrant" the State has presented to the
    Honorable Court is extremely questionable for the following reasons:
    a. The Alvin Police Department alleges in the Findings of Fact
    that it was in possession of anarrestwarrant for the Applicant
    Response in Traverse Pa£€ 1
    "for the offense of Felony Larceny of a Motor Vehicle out of North
    Carolina at the time Officers from that agency entered the Appli-
    cant's motel room and found him in bed with...."
    (See Findings ofl
    Fact at page 1).
    b. lf, in fact, the Alvin Police Department was in possession of
    said arrest warrant at the time Officers from that agency entered
    the Applicant's motel room, why did the agency have to procure a
    faxed copy of the alleged warrant for arrest from North Carolina,
    or rather, the Brazoria County District Attorney, on 11/07/2014 at
    09:51; again at 11/21/2014 FRI at 14:07; and yet again on 11/21/2014
    FRI at 14:17?
    c. This "warrant" which the State has produced is "cheap as press-
    on nails and Applicant could have done a much better job of forging
    such a thing! This warrant is not even signed by a magistrate, as
    required, a typed name of a Brandon J. Freeman, without more cannot
    be deemed signatory and lawful. The warrant does not contain the
    seal of the court of record or justice of the peace, being a legal-
    ly qualified justice of the peace, with certificate under seal of
    the district or county clerk of his county certifying that he is a
    legally qualified justice of the peace of such county, According to.
    the lawful requirements of Art. 
    15.12, supra
    , endorsement is required
    and no such endorsement may be placed on a warrant received by tele-
    graph unless all requirements of law in relation thereto have been
    fully complied with. (See Art. 15.12, 
    T.C.C.P., supra
    )
    d. The ¥warrant" produced by the State for the Honorable Court
    is defective in many ways, but the worst defect is the fact it is
    not under seal nor certified to by a court of record or by a just-
    ice of the peace. Not only is it not signed by a magistrate from
    Buncombe County, North Carolina, it clearly smells like a rat!
    e. Finally, and this is going to raise some hairs on the back of
    some necks, Applicant owned the vehicle alleged stolen from Angela
    Cherie Smith, as this is his lawful wife! (See attached Certificate
    of Marriage out of Brazoria County, Texas, dated November 8, 1998).
    Surely, when Mrs. Angela Smith was filing the report of a stolen
    vehicle, someone, anyone, asked her if she was related to Shannon``
    Cole Smith! Applicant purchased the vehicle in North Carolina from
    his in-laws family and put the vehicle in his wife's name. He did
    Response in Traverse page 2
    drive the vehicle to California, then to Texas, where he was arrest-
    ed for being in possession of "community property" purchased while
    he and the alleged complainant were "legally married,"
    and they are
    Still legally married! Having married in Texas, any item purchased
    while legally married is "community property" and neither party to
    the marriage can allege separate ownership to said item purchased!
    Applicant need not take the Honorable Court down "Family Law" lane
    to support his contention.
    f. Why didn't anyone bother to check if Applicant was the owner
    of the vehicle by law? Who would accept an affidavit of probable
    cause from the alleged Complainant, Angela Cherie Smith, without
    asking her if she was legally married to the alleged defendant?
    lf, in fact, an arrest warrant even exists for Applicant as Warrant
    No. WA66166@, out of the State of North Carolina, someone needs to
    put that State on notice that Applicant is legally married to the
    alleged complainant and that the vehicle she alleges he stole from
    her is his. Someone needs to explain the law of community property
    to the backwards State of North Carolina, as Applicant is guilty of
    nothing in the form of violation of law in driving his own truck to
    California and then to Texas, even if it was without the effective
    consent of his lawful wife! Unless the State can present proof of
    claim that the vehicle in question was "separate property" of the
    alleged complainant, the lack of clean hands; lack of subject matter
    jurisdiction; and personal jurisdiction; to include lack of fair
    dealings demands that Applicant be immediately released from custody
    and that he be compensated for his wrongful conviction and confine-
    ment. (See Applicant's Affidavit of Fact, attached)
    ll.
    PRAYER
    3. Applicant prays that this Honorable Court demand that the
    State produce the alleged arrest warrant under seal it allegedly
    received from the justice of the peace or from the court of record
    the telegraph manager took it to to get said certification. The
    warrant produced by the State is dated after the fact and cannot be
    deemed "evidence" in the habeas record or trial court record, as a
    violation of the rules of evidence and right to confrontation and
    Response in Traverse page 3
    cross-examination occurred when Applicant was denied the right to
    question the alleged certification and possession of the warrant
    for arrest at the time officers entered the motel room.
    4. Applicant would also like to point out that Officer Jason
    Shoemake's Affidavit of Fact at paragraph 5 where the officer states
    that "Officers attempted to make verbal contact with Smith inside.
    After no response from inside the room, l used the hotel key to open
    the door..., is inconsistent with the Original Complaint's set of
    facts, as in that Complaint, Officer Shoemake states he knocked on
    the door and stated "POLICE DEPARTMENT. After a few seconds l did
    not hear a response from inside so l swiped the room key and the
    green light came on indicating that the door was open...."
    5. Applicant would also ask the Honorable Court to have the State
    explain why Officer Shoemake's Affidavit also has the same fax time
    and date as follows: 11/21/2014 FRl 14:17, and the same fax machine
    # [TX/RX NO 6483j.
    6. lt is obvious that the arrest warrant lacks the proper lawful
    requirements of certification and seal from the appropriate court of
    record or justice of the peace to have been used to arrest the Appli-
    cant and that it lacks a signature of some magistrate on the warrant
    itselfj as well as the fact Applicant is legally married to the al-
    leged complainant, and said marriage was out of Brazoria County,
    Texas. Surely this is the final nail placed into the coffin of the
    State's case against the Applicant.
    Applicant never committed any crime against the laws of North
    Carolina or Texas and he is actually innocent of having committed
    Felony Larceny of his own property. For the foregoing reasons Appli-
    cant prays for habeas corpus relief and an instruction from the Court
    that an Order of Acquittal be entered in said case.
    So PRAYED this milde of De¢ember, 2014.
    Respectfully ubmitted,
    %CE
    Shannon Cole mithu #1623938
    James A. Lynaugh Unit v
    1098 S. Highway 2037
    Fort Stockton, Texas 79735
    Response in Traverse page 4
    DECLARATION
    l, Shannon Cole Smith, TDCJ-ID #1623938, being presently in-
    carcerated at the James A. Lynaugh Unit of TDCJ-ID, declare under
    penalty of perjury that the foregoing facts are true and correct.
    Z@_‘;;;BM lmst
    Shannon Cole Smith
    Applicant Pro Se
    cERTIFIcATE oF SERVICE
    l certify that a true and correct copy of the foregoing with
    exhibits was sent to the attorney for the State by placing the same
    in a postage prepaid envelope and mailing it to the address as fol-
    lows:
    Honorable David Bosserman
    Assistant District Attorney
    111 E. Locust, Suite 408A
    Angleton, Texas 77515
    Attorney for the State
    360 v t §1,,;1°>93»?
    Shannon Cole Smith
    Applicant Pro Se
    Response in Traverse page 5
    STATE OF TEXAS
    COUNTY OF PECOS
    C/.``/>¢/.``/J¢/.``/>
    AFFIDAVIT OF FACT OF SHANNON COLE SMITH
    1. My name is Shannon Cole Smith, TDCJ-lD #1623938, l am over
    18 years of age and able to make this affidavit of fact based uponf
    personal knowledge of the facts contained hereinu
    2. l am currently incarcerated at the James A. Lynaugh Unit of
    the Texas Department of Criminal Justice, Correctional lnstitutions
    Division, located at: 1098 S.'Highway 2037, Fort Stockton, Pecos d
    County, Texas 79735.
    3. . l attest that l was lawfully married to Angela Cherie Hill,
    D.O.B. 10/30/1978, on November 8, 1998 in Brazoria County, Texas.
    `` 4. l further attest that my wife and l purchased the black, 1999
    Ford truck in question from her family in North Carolina while we
    were legally married.
    5. l attest that l drove the truck to California to go work there
    shortly after we purchased the truck and that l drove the truck to
    Texas where l was inadvertently arrested, allegedly for being in
    possession of a stolen truck.
    6. l attest l did not give any police officer consent to enter
    the motel room which had a locked door and l did not give consent
    to the motel manager to enter the room or authorize anyone else to
    enter the room.
    7.'. l attest that l was never presented any "warrant" nor any
    "affidavit" in support of said warrant by any officer after my ar-
    rest. n
    8. l attest that l am still legally married to Angela Cherie Smith
    and am the lawful owner of the 1999 Ford truck in question, though l
    do notknowits whereabouts at this time.
    9. l attest that l gave no statements voluntarily nor freely to
    any law enforcement officer, but was subject to interrogation after
    unlawful entry was gained in to my motel room by Alvin Police.
    Affidavit of Fact page 1
    10. l attest that l am the Applicant in habeas corpus action No.
    60527-A out of the 23rd Judicial District Court of Brazoria County,
    Texas. w
    11. l attest that l have reviewed the "warrant" the State is try-
    ing to use to support the unlawful arrest on July 18, 2009, and that
    l find it does not contain a magistrate's signature nor the certifi-
    cation under seal required from said telegraph managerls office in
    having taken said warrant to a court of record or justice of the
    peace to certify it under seal pursuant to Art. 15.12,,Texas Code
    of Criminal Procedure.
    12. l attest that being the owner of the 1999 Ford truck in ques-
    tion, l cannot be charged with stealing my own property and there-
    fore no lawful authority existed, nor can police allege any good
    faith; clean hands; or fair dealings in having violated my consti-
    tutional right to privacy in entering my motel room without my con-
    Sent.
    Further affiant saith not.
    Executed this uii~day of December, 2014 in Pecos County,
    Texas.
    z<(f>§vuvaii \t;f-s%>? f
    Shannon Cole Smith
    Affiant Pro Se
    DECLARATION
    I, Shannon Cole Smith, TDCJ-ID #1623938, being presently in-
    carcerated at the James A. Lynaugh Unit of TDCJ-ID, declare under
    penalty of perjury that the foregoing facts are true and correct.
    %'€‘°%\:[(/, \tz”><)*§r
    Shannon Cole Smith
    TDCJ-ID #1623938
    James A. Lynaugh Unit
    1098 S. Highway 2037
    Fort Stockton,\Texas 79735
    Affiant Pro Se
    Affidavit offFact ' page 2 of 2
    V\/e||ness P|us pharmacy 8326047420 p.‘|
    [FILL OUT cause number and heading information EXACTLY as it is written on the Petition]
    NO_ vvR-sz,o¢ss-oi
    Ex PARTE SHANNON COLE SM\TH 23RD DlSTRicT CouRT FRoM BRAzoRlA‘couNTv, rExAs
    bUZUOJlr M 13ch
    [The person who has personal knowledge of this statement must sign it.
    DO NOT SlG``N this statement until you are in front of a notary ]
    State ot``Texas
    County of wm
    [name of county where statement is notarized]
    SWORN nd SUBSC BED before me the undersigned authority, on :,
    theéé_ ’day of , O? 0 / :/ )'€ar, by
    £/).a£/a /~é// S/))/'>"/_» ’\-“==-
    [PRIT\T the first and last ria.mes of the person who 1s signing this at``iidavit. ]
    \ BnENnA M. euli.i.onr .5 Nomy Pubiic, stare oriean [Nmary'~s signature
    `` NOia|‘y P|.lbll¢ ' `` "``
    STATE OF TEXAS
    _MV§emm §2<§.- ii ié:is
    [``l\``otary’s seal must be included.]
    TexasLawHelp.org Sworn Statement-l-Afiidavit
    Last Update: 6-l6-05 Page 5 of 5
    vi
    3:001’!4
    MARRIAGE LICENSE l nm STATE OF mims
    l ' ootm'nr 01=' nmzonm
    Ta any Perxan authorized by the Law.¢ of the State al Ttx¢u to ccl¢broto the R¢'Ie.r al Motn'mony in the S¢ot¢`` of Te.ra:- -
    GRE£TING:
    _ YOU ARE HEREBY AUTHOR!ZED TO SOLEMN!ZE THE R!TES OF MATRIMONY BETWEEN
    Mr SHA!|NON COLE SMITH and M ANGE[.A CHERIE HILL
    and make due return to the Clerk ol the Coun¢y Court of said County within thirty days thereafter, certifying your action under this Li'ren.\'s.
    erEs$ my affidalsignacm amici ama ar A»glmn, Tm¢, em 29 day 01 OC'I’OBER 10 98
    ay .......... s . ifr/fullle .......................... o¢;my. ooLLY BA!LEY
    ANET sANI)r.Rsr
    .(L' ) JANET SANDIiRS(SEAI’.-) Clrrk of Co¢mty Court, Brasan'a County, Trxo.r.
    l hrr¢%certi]y that an the am day of NQVMER 19 98 at mTchocK
    mims “ f``o¢mtv, T¢xo.r, l united in Marriage the par!ie: above nomrd.
    GIVEN won my hand, eh;. 8'1'11 day ,,, novmmt:n m 98
    1 =oonr " tecum.J.t_l‘zlpna;v.n”sa......_......msma...._.....~m;.._...-,,..
    m
    v O.H» HITCBCOCK BAPTIST CHU'RCH
    taken
    R¢turmd and recorded the 12 day of No DBER 19 98 ,
    ' DOLLY BAJLEY
    331 Q?Ml;i Gi/}'Yl¢,i i)/D/ P¢pury. - Clcrk Coun¢y Court.
    sTATE oF TEXAS_ .
    COUNTY or BRAZQR;A _ . 1
    l certify that t/ie a501)e am[fomoina is a fu[f true amf correct vhotoaravhic cory oft/ie oriaina[reconf
    

Document Info

Docket Number: WR-82,043-01

Filed Date: 12/31/2014

Precedential Status: Precedential

Modified Date: 9/28/2016