                                                                                             ACCEPTED
                                                                                         12-15-00033-CV
                                                                            TWELFTH COURT OF APPEALS
                                                                                          TYLER, TEXAS
                                                                                    7/30/2015 3:34:50 PM
                                                                                           CATHY LUSK
                                                                                                  CLERK

                         IN THE COURT OF APPEALS

                                                 FILED IN
         FOR THE TWELFTH APPELLATE DISTRICT OF TEXAS
                                                                12th COURT OF APPEALS
                                                                     TYLER, TEXAS
                                 TYLER, TEXAS                   7/30/2015 3:34:50 PM
                                                                     CATHY S. LUSK
                                                                         Clerk
                                              §
                                              §
IN THE MATTER OF THE ESTATE                   §
OF RUBY RENEE BYROM                           § CAUSE NO. 12-15-00033-CV
                                              §
                                              §
                                              §

    MOTION TO STRIKE APPELLANT’S BRIEF EXHIBITS G AND H

      NOW COMES JILL CAMPBELL PENN in the above styled and numbered

cause, and files this motion for the Court to strike Appellant’s Brief Exhibits G and

H and shows the following:

                                         I.

      The Decree Ordering the Sale of Real Property was entered on November 14,

2014. Appeal was perfected on February 2, 2015. Appellant’s Brief was filed on

May 18, 2015. Appellant’s Brief Exhibit G is an affidavit executed by Appellant

Dimple Byrom on March 1, 2010 (and is attached hereto as Exhibit 1). Appellant’s

Brief Exhibit H is an affidavit executed by Appellant Jerry Byrom on May 7, 2015

(and is attached hereto as Exhibit 2).




                                     Page 1 of 3
                                            II.

         There is no indication that these affidavits were ever a part of the record of

this case or in any way presented to the trial court. Dimple Byrom’s affidavit

(Appellant’s brief, Exhibit G) has a file mark on it from the county clerk of

Cherokee County but it does not indicate if it was filed in the deed records or in a

court record. Regardless, this appeal stems from a district court case so it would

seem likely that if presented to the trial court in this case it would have a district

court file mark. It is not in the clerk’s record from this case that is filed with this

court.

         In addition, Appellant has attempted to interject evidence in this case

without notifying this court or opposing counsel. There is no indication that he

attempted to supplement the record under T.R.A.P 34(c). Even had he done so,

these affidavits could not become part of the record as they were not presented to

the district court. This wrongful act is multiplied when you see that the date of

Appellant’s affidavit (Appellant’s brief, Exhibit H) is May 7, 2015 which is almost

six months after the Decree Ordering the Sale of Real Property was entered on

November 14, 2014 and could not possibly be part of the record. In addition, as

more fully explained in Appellee’s brief, it appears that Jerry Byrom perjures

himself in the affidavit as it is contrary to sworn testimony he gave in the prior

                                        Page 2 of 3
cases and in this case.

      WHEREFORE, PREMISES CONSIDERED, Jill Campbell Penn prays

that the Court strike Appellant’s Brief Exhibit G and Exhibit H.

                                              Respectfully submitted,
                                              Joseph F. Zellmer
                                              620 West Hickory Street
                                              Denton, Texas 76201
                                              Telephone: (940) 383-2674
                                              Fax: (940) 382-7174
                                              Email: jfz@zellmerlaw.com

                                                    /s/ Joseph F. Zellmer
                                              By:___________________________
                                               Joseph F. Zellmer
                                               State Bar No. 22258515
                                               Lead Counsel for Jill Campbell Penn




                          CERTIFICATE OF SERVICE

      I hereby certify that on this the 30th day of July, 2015, a true and correct

copy of the above and foregoing Motion to Strike Appellant’s Brief Exhibits G

and H was served on Joe Shumate, by eservice or email.


                                              /s/ Joseph F. Zellmer
                                              ______________________________
                                              Joseph F. Zellmer


                                     Page 3 of 3
EXHffiiTl
..                                            AmDAVIT

     STATB OP TEXAS               I
                                  §              KNOW AU. MBN·BYTHBSB PRESENTS:
     COUNTY OF RUSK               §

            BEFORE MB, tho undersigaed notaJy public, pmonally appeared the penon whoseuamo

     is subscribed herembelow, and after beiDa duly swom, deposed and stat«< as follows:

                     "My name 11 Daisy D. Byrom, a/1da Dimple Byrom, and I am the wife of
            Jerry Byrom. I am over the age of 18 years, havo nover beca. CODVicted of a felony,
            azul 8111 competeat to mab this aftidavit.                                       .

                  IerryByromandlwezemarriedon the26thdayof1uly, 1971, in Henderson
           County, Teus. Webaveneverbeea clivolcecL In1anuaryofl986_ wepurcbased1he
           two tracts or perceJs of land in Rusk County, Teas, totaJins 120 acres, which. are
           described on Bxhibit •A" attached~ and :refeuecl to hen1n u "tho propc:rty."

                    At the time we puiQbasaJ the prvpcrty, it was aot our honlestcad; howovcr,
           em or about March of2006, we OOJIIfmctlld a homo Oil the property and at that time
           it bec:ame our bomestead. This was befcnmyhusband received anyproperty fi'om
           Jus mother's estate. A true ad cor.roet copy oftb.e OODtract with the buD.dcr is
           attached hereto as Exhibit CC})." Wo haw Jived on the p10pcrty since 2006 and live
           t'hero now with 1bur miDor graadchi1clreD.

                  Otbcrtlum the original pianUsemoceyand constractloDHcasontheproperty
           ad a aote from the bank iD wlnch 1b ptapaty was vscd as aecurity (whioh was
           released in April of 2002 prior to building oar homo}t I have never allowed the
           propertyio be subject to my liens or JUdamcat.

                 Ihaebyassertanyrigbtlbavotoob.JecttoaJI)'exectltionofjudgmmtorlieDs
           apiust my homestead pmpedy aD4 tho homestead property of my mmor
          SfiiDdc;hild:re,                        .




                                                                        .   . -- .,   ______       ______
                                                                                           ...:...__
       SUBSCRIBED AND SWORN TO BEFORE ME on this tho                            /    ~   day of
,,-   ~ (Y\.g..b   •2010, by Daisy D. Byrom. al'da Dimple B)'l'OJD.




                                                 li~L8B
                                              at IZ, .o'cfoe"-f'M.
                                                        tfAR G9 LUtO
                                                    LAVERNE LUSt<
                                              CI.ERX, cautm' COURT CHEROKEE CO. tX
                                              .,        JJ                  .,.,




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EXHffiiT2
                                          AFFIDAVIT

STATE OF TEXAS                §
                              §              KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF RUSK                §

       BEFORE ME, the undersigned notary public, personally appeared the person whose name

is subscribed hereinbelow, and after being duly sworn, deposed and stated as follows:

             "My name is Jerry Byrom, and I am the husband ofDaisy D. Byrom, a!k/a
       Dimple Byrom. 1am over the age of 18 years, have never been convicted of a felony,
       and am competent to make this affidavit.

               Daisy D. Byrom, a!k/a Dimple Byrom and I were married on the 26th day of
       July, 1971, in Henderson County, Texas. We have never been divorced. In January
       of 1986, we purchased the two tracts or parcels of land in Rusk County, Texas,
       totaling 120 acres referred to herein as "theproperty."

               At the time we purchased the property, it was not our homestead; however,
       on or about March of2006, we constructed a home on the property and at that time
       it became our homestead. This was before I received any property from my mother's
       estate. We have lived on the property since 2006 and live there now with two minor
       grandchildren.

              Other than the original purchase money and construction liens on the property
       and a note from the bank in which the property was used as security (which was
       released in April of 2002 prior to building our home, I have never allowed the
       property to be subject to any liens or judgment.

              I hereby assert any right I have to objectto any execution ofjudgment or liens
       against my homestead property and the homestead property of my minor
       grandchildren."
         SUBSCRIBED AND SWORN TO BEFORE ME on this the 7' 11 dayofMay, 2015, by Jerry
Byrom.




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