             //rt-/5                ^D!
                                                     NAL
        NO. 12-14-00069-CR



               IN THE


    COURT OF CRIMINAL APPEALS

          AUSTIN, TEXAS




      JASON WAYNE FRIZZELL

                 V.


       THE STATE OF TEXAS




                                    REC
 From Appeal No. 12-14-00069-CR           urciitWi


    Trial Cause No. 13-CR-183        §jrp jQ 2015
         Houston County




PETITION FOR DISCRETIONARY REVIEW


       n.m
                 FILED IN
        X3URT OF CRIMINAL APPEALS
               SEP 16 2015

             Abel Acosta, Clerk
                                  TABLE OF CONTENTS




Index of Authorities                                   2

Statement Regarding Oral Argument                      3

Statement of The Case                                  4

Statement of Procedural History                        5

Ground For Review One                                  7

Ground For Review Two                                  7

Argument                                              8

Prayer For Relief . *.                                11

Certificate of Service                                13

Certificate of Compliance                             12

Appendix A                                            14
                               INDEX OF AUTHORITIES




United States Court Cases

Avery V. Alabama, 308 U.S. 444-446                                  §

Almendarez-Torres V. United States, 523 U.S. 224                10
Brown V. Wainwright, 665 F.2d 607, 610 (5th Cir. 1982)           9
Faretta V. California, 422 U.S. 806 (1975)                       8

Indiana V. Edwards, 554 U.S. 164(2008)                           8

Jones V. United States, 119 S.Ct. 1215 (1999)                  .10

Mickens V. Taylor, 535 U.S. 162, 166                            10

United States V. Cronic, 466 U.S. 648, 653                       9
United States V. Fisher, 25 F.Cas 1086 (cc Ohio 184)            10

United States V. Taylor, 933 F.2d 307 (5th Cir. 1991)            8

Wheat V. United States, 486 U.S. 153 (1988)                      8



Texas Court Cases

Chadwick V. State, 309 S.W. 3d 558 (Tex.Crim.App. 2010)          9

Ex Parte Scott Louis Panetti, WR-37-145 (Tex.Crim.App. 2010)     9

Garcia V. State, 367 S.W. 3d 683 (Tex.Crim.App. 2012)           11
Lane V. State, 763 S.W. 2d 785 (Tex.Crim.App. 1989)            11


Constitutions, Criminal Law

Criminal Law   Q~t 641.1                                        8

Criminal Law   Gz? 641.13(1)                                    8

Prisons        C=> 4(13)                                        8

U.S. Const..Amend 6                                             8
                STATEMENT REGARDING ORAL ARGUMENT




    Oral argument would be helpful because this case presents novel issues

this court has not previously addressed.
                              STATEMENT OF CASE




    This is a Petition for Discretionary Review upon two submitted issues, of a

jury verdict of Guilty and subsequent issuance of a sentence for incarceration to

the term of Twenty (20) years, TDCJ-ID.
                               PROCEDURAL HISTORY

     The subject offense was injury to a child, a Third degree felony as charged

by indictment. The indictment did not include any prior convictions for enhance
ment purposes. At punishment the third degree felony was enhanced to a second de

gree felony due to a prior felony conviction which was obtained pursuant to a plea
agreement on April 19, 2001. The jury reviewed guilt and innocence as well as ren
dered punishment. The alleged events occured in Houston County, on or about the
14th day of September, 2013. The purported child victim was a relative, who all
eged to have been struck in the upper left chest during the course of a heated in
teraction between his mother and I. No injury, pain or resulting incapacity was ev
ident as a product of the disagreement. I, the petitioner, maintain that the fracas
did not entail any injury to the child. After leaving the area, I was later arrest
ed at my mothers residence. During the course of the pendency of the matter, I re

peatedly requested reasonable access to a law library and law reference materials.
Other than basic statutory manuals, I was not provided research or caselaw mater

ials .

     At the day of trial, I was subjected to a Hobson's Choice of waiving my filed
speedy trial motion, or going forth to trial without adequate preparation. Trial
was conducted without me being able to present a defense to the matter which resul-
ed in a jury verdict of guilty. I requested counsel for the punishment phase of tr
ial, yet due to discard and conflict with appointed counsel, such counsel withdrew
from the matter and punishment phase of trial was conducted. I did not tender any
evidence, citing 5th Amendment privilege and repeatedly requesting more time for
preparation or alternate counsel for assistance. After presentation of a pen pack
et, exhibiting a prior conviction and argument of the State, without rejoinder by
me, the jury rendered a sentence of (20) years, TDCJ-ID. I submit that I did not
receive appropriate due process in the conduct of the trial and that such evidence
presented was insufficient to support the conviction. I filed a Motion for New Tr

ial on March 5th, 2014 citing numerous points of error in the conduct of the trial.

Such points go to the heart of the due process violations alleged in the conduct of

the trial.

     Appeal Brief was filed on December 31st, 2014 in the 12th Court of Appeals of

Texas. On August 5th Conviction and Sentencing was affirmed 2015. Opinion to Affirm

by the 12th Court of Appeals of Texas was based in part due to the inaccuracy of

state record in cause number 11CR128, in which I was found to be NOT GUILTY as a

result of waiving court appointed counsel during trial and representing oneself for

the last two days of trial. Two attorneys were appointed to the case and after co

nflict with both, I elected to act pro se and was acquitted on 3-27-2012. Motion

for Rehearing was not filed with the Twelfth Court of Appeals.
                                 ISSUES PRESENTED




GROUND FOR REVIEW ONE:

THE COURT OF APPEALS ERRED IN HOLDING THAT THE APPELLANT RECIEVED ADEQUATE DUE PR

OCESS IN THE CONDUCT OF THE TRIAL.




GROUND FOR REVIEW TvK):

THE COURT OF APPEALS ERRED IN HOLDING THAT THE EVIDENCE WAS SUFFICIENT.
                        POINTS, ARGUMENTS AND AUTHORITIES

                                        I.

     THE APPELLANT WAS DENIED ADEQUATE DUE PROCESS IN THE CONDUCT OF THE TRIAL.

     As established by the United States Supreme Court, in it's holding in the case
of Faretta V. California, 422 U.S. 806 (1975), a criminal defendant does indeed
have a U.S. Constitutional right to pursue a defense on his or her own, without the

trial court imposing counsel on them. However, the case does not allow that status
to be established when defendant is impaired and "unable" to assert an appropriate

defense by the absence of legal research materials, an investigator and other app
ropriate resources as was requested repeatedly in this case. When counsel is either
totally absent or is prevented from assisting the accused during a critical stage

of the proceedings, then the trial is unfair and reversal of a conviction is mand

ated, regardless of whether it is or can be shown that the defendant suffered pre
judice from the lack of effective assistance of counsel. U.S. V. Taylor, 933 F.2d
307 (5th Cir. 1991). This should also apply where legal research resources or inv
estigatory resources are being requested as in this case. When defendant is free

from having counsel imposed on him as established in Faretta while being held in

confinement pursuing a defense on his own, then the defendant should be provided

access to law books or other tools to assist him in preparing a defense. U.S.C.A.

(6) (Prisons <J=*4(13)). If no actual assistance for the accused defense is pro
vided, the Constitutional guarantee has been violated. U.S.C.A. (6)(Criminal law

<$zz? 641.1). While criminal trial is not a game in which the participants are ex
pected to enter the ring with a near match in skill, neither is it a sacrifice of

unarmed prisoner's to gladiators. (Criminal law 0=^*641.13(1)), the judiciary has
an independent interest in ensuring that criminal trials appear fair to all who ob

serve them and is required by Faretta, must act to maintain that fair balance. In

diana V. Edwards, 554 U.S. 164 (2008); Wheat V. United States, 486 U.S. 153 (1988).
As noted by the Opinion of Justice Holcomb and Justice Johnson, in their dissent
regarding the Court of Criminal Appeals action on the post conviction writ in Pan

etti, (WR-37-145-03), concluding that the fairness interest attendant to trial was
not met in that case, nor is it met here. Indiana V. Edwards, coupled with the op

inion of the Texas Court ofCriminal Appeals, in Chadwick V. State, 309 S.W. 3d 558

(Tex.Crim.App. 2010), which is clearly demonstrated in that the pro se represent
ation, while never the best course of action to pursue, was immensely hampered by

the absence of legal research materials and reasonable access to law reference and

case law publications. As established in United States V. Cronic 466 U.S. 648,653.

Whether a man is innocent cannot be determined from a trial in which denial of co

unsel has made it impossible to conclude, with any satisfactory degree of certainty

that the defendants case was adequate presented. The same applies in this case

where the assistance of research materials and reasonable access to law reference

and case law publications to prepare a defense was denied. When defendant has a

right to refuse counsel, Brown V. Wainwright, 665 F.2d 607,610 (5th Cir.1982), then
the court should not attempt to force counsel on defendant as established in Fare

tta, which could otherwise convert the appointment of counsel into a sham and noth

ing more than a formal compliance with the Constitutions guarantee of the accused

right to assistance. The Constitutions guarantee of assistance of counsel cannot

be satisfied by mere formal appointment. United States V. Cronic, 466 U.S. 648,653.

Avery V. Alabama, 308 U.S. 444, 446. The pro se defendants Constitutional right to

assistance is not based on the abandonment of a formal appointment of temporary co

unsel. Since the right of self-representation entails a waiver of the right to co

unsel, it cannot be said that a pro se defendant has abandoned his right to prepare

his own defense, nor can it be said that a defendant doesn't have a right to do so

outside of court attempting to impose counsel on him. The pro se filing of this Pe

tition for Descretionary Review is proof that the defendant has a Constitutional

Guarantee to access to law books or other tools to assist him in preparing a defen-
 se while held in confinement and long after the appointment of counsel is no long
 er available. The defendant must be able to follow the rules of the court and in

 this case it's clearly demonstrated that I was not able.

      As established in Almendarez-Torres V. United States, 523 U.S. 224, the comm
 on law approach to determining elements was the well-established rule that if a st
 atute increased the punishment of a common law crime, whether felony or misdemean
 or based on some fact, then that fact must be charged in the indictment in order
 for the court to impose the increased punishment.
      Therefore, facts that trigger such provisions must be charged by indictment,
 proven beyond a reasonable doubt and submitted to a Jury for its verdict. Jones V.
 United States, 119 S.Ct 1215 (1999) also citing United States V. Fisher, 25 F.Cas
 1086 (cc Ohio 184). There is harm present, in that the conviction as it stands, by
 virtue of the punishment enhancement applicable, the appellant was subject to a sec
ond degree felony punishment range. The Sixth Amendment provides the accused shall
enjoy the right...to be informed of the nature and cause of the accusation, to be
confronted with the witnesses against him. United States V. Cronic. The state fail
ed to confront the accused with the complainant, Tracy Adams. Mickens V. Taylor,
535 U.S. 162,166. Prejudice presumed where counsel was denied entirely or during a
critical state of the proceeding.



                                         II.


     THE CONVICTION AND RESULTING SENTENCE WERE NOT SUPPORTED BY ADEQUATE EVIDENCE.
     This case revolves around the conflicting testimony of my nephew, Jeremy Neil
Frizzell Jr., the sum of his testimony is that he was struck during the course of
conflict between mother and I. The alleged strike purportedly produced a red mark
on his chest, but no other affliction. No medical treatment, lingering pain or in
jury was resulting from the conflict. Further, the witness did effect a crude writ-

                                    10
ten statement recanting the allegation, which was accompanied by his mother's aff
idavit of non prosecution. He also recanted the allegation while testifying in cau
se number 13CCL-124 and in a 40 plus minute taped video interview that followed his
testimony in 13CCL-124 (Protective Order Hearing) before trial. Physical impair
ment, if alleged, must show that there was diminished function of a body organ. Ga
rcia V. State, 367 S.W. 3d 683 (Tex. Crim.App. 2012). As shown in defendant's EX
HIBIT (3), Jeremy Frizzell Jr., says he's fine, mother says he's fine. No medical
treatment, no impairment, no injury. Lane V. State, 763 S.W. 2d 785 (Tex.Crim.App.
1989). The veracity of the complaining witness was tremendously subject to being
put into question in this matter, which is the subject of the prior point of error
asserted herein.




                                     PRAYER


     WHEREFORE, PREMISES CONSIDERED, Petitioner respectfully pray's that this court
vacate the verdict and sentence of the trial court, remanding the matter for new
trial and such other and further relief as he may show himself deserving, at law
and in equity.




                                       11
                            CERTIFICATE OF COMPLIANCE




    This is to certify compliance with the Texas Rules of Appellate Procedure in

regard to the declaration of the total-WeseS-count \H    , non exclusive of App
endix material.




                                             Jason Frizzell t<V\5\C(C{
                                             GVVi \^ui\b(\Yb)




                                        12
                              CERTIFICATE OF SERVICE




     This is to certify that a copy of this Petition for Discretionary Review has

been forwarded via U.S. Mail on   2?'/}UG~ 2.Q/S             > to the office of the

Houston County Attorney at the following address: 401 E. Houston Avenue, Crockett,

Tx 75835 and to the State Prosecuting Attorney at the following address: P.O. Box

12405, Austin, Tx 78711.




                                             •pPro Se p •• W
                                                   c Petitioner
                                             Jason Frizzell \q\SW
                                             Cs\\i V_e.u3\b(\\t>}




                                        13
                  APPENDIX A




OPINION OF THE 12th COURT OF APPEALS OF TEXAS




                      14
                                   COURT OF APPEALS


      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS


                                              JUDGMENT


                                              AUGUST 5,2015



                                             NO. 12-14-00069-CR



                                    JASON WAYNE FRIZZELL,
                                                 Appellant
                                                    V.
                                      THE STATE OF TEXAS,
                                                  Appellee


                                Appeal from the 349th District Court
                         of Houston County, Texas (Tr.Ct.No. 13CR-183)

                        THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                        It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court
below for observance.


                    Panelconsisted of Worthen, C.J., Neeley, J. andBass, Retired!, Twelfth Court ofAppeals,
                    sitting by assignment.
                                  NO. 12-14-00069-CR


                            IN THE COURT OF APPEALS

               TWELFTH COURT OF APPEALS DISTRICT

                                     TYLER, TEXAS


JASON WAYNE FRIZZELL,                           §      APPEAL FROM THE349TB
APPELLANT


V.                                              §      JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                        §      HOUSTON COUNTY, TEXAS

                                 MEMORANDUM OPINION

       Appellant, Jason Wayne Frizzell, appeals his conviction for injury to a child. In two
issues, Appellant contends that he was denied due process inthe conduct of the trial and that the
evidence is insufficient to support his conviction. We affirm.


                                         Background

       On September 13, 2013, Appellant got into an argument with his sister-in-law, Tracy
Adams, in the front yard of Rhonda Musik's house. In the course of the argument, Appellant
pushed Tracy Adams down. Jeremy Frizzell, Jr., age twelve, saw his mother on the ground
beside the road and rushed to her defense. Appellant hit Jeremy with a closed fist, knocking him
down, and left the scene.
       Deputy Sheriff Lorenzo Simpson arrived at the location in response to a 911 call. On
arrival, he found Jeremy crying. Jeremy told Deputy Simpson that his uncle had pushed his
mother and hit him. Jeremy had superficial abrasions and bruises to the left upper side of his
head. Jeremy had also been hit in the chest knocking his breath from him and causing him to fall
to the ground. His knees were scraped, and he suffered minor bruising and discoloration to his
back. At trial, Jeremy testified that the blow to his chest left a red mark, which hurt and
temporarily made it difficult to- breathe. However, when an ambulance arrived, Jeremy and his
mother refused any medical treatment. Appellant was arrested two days later.
        At his arraignment, Appellant told the court that he wanted to represent himself. The trial
court thoroughly admonished Appellant regarding the dangers ofself-representation. The trial
court tried repeatedly to impress on him the gravity of his decision to proceed pro se and the
likelihood that it was a mistake.
        Appellant filed pretrial motions for a change of venue, for the appointment of a different
judge, and for aspeedy trial. At the hearing on the motions, Appellant said that he needed access
to a law library in order to prepare his defense. The trial court informed Appellant that a court
appointed lawyer would give him access to research materials. Appellant persisted in his refusal
to have a court appointed lawyer.1
        After the jury returned a guilty verdict, Appellant requested the appointment of counsel
for the punishment phase of the trial. Court appointed counsel consulted with Appellant on each
of the three working days between his appointment and the start of the punishment phase.
Immediately before the beginning of the trial on punishment, Appellant told the court that his
court appointed counsel was working against him. He requested more time to prepare or another
lawyer. He rejected further representation by his court appointed attorney, preferring to represent
himself if the court refused to appoint alternate counsel. The trial court denied his request for
delay or for the appointment of another lawyer. Appellant declined to testify and offered no
evidence. The jury assessed Appellant's punishment at imprisonment for twenty years.2

                               Access to Legal Research Materials
        In his first issue, Appellant complains that the trial court's denial of access to legal
research materials while he represented himself denied him due process oflaw.
Applicable Law
       "The Sixth Amendment . . . grants to the accused personally the right to make his
defense." Faretta v. California, 422 U.S. 806, 819, 95 S. Ct. 2525, 2533, 45 L. Ed. 2d 562.

         1Appellant's aversion to court appointed counsel is particularly difficult to understand. The record shows
that only the year before, Appellant had been represented by court appointed counsel at his tnal on another charge
and had been acquitted.

         2Appellant had aprior felony conviction that was used to enhance the third degree felony injury to achild
to asecond degree felony. See TEX. PENAL CODE ANN. §§ 22.04(f); 12.42(a) (West Supp. 2014).
Forcing adefendant to accept counsel against his will deprives the defendant of his constitutional
right to defend himself. Id., 422 U.S. at 835, 95 S. Ct. at 2541. Adefendant electing to waive the
right to counsel and represent himselfmust do so competently and intelligently. Id. However, the
defendant's technical and legal knowledge is not relevant in determining his competence to waive
his right to counsel. Id. The defendant's waiver of his right to counsel must be knowing and
voluntary. Id. The record must show that he was made aware of the dangers and disadvantages
of self-representation and that he made that choice "with eyes open." Id. Finally, the defendant's
decision must be voluntary. Id.
       In United States v. Wilson, 666 F.2d 1241 (9th Cir. 1982), the defendant rejected court
appointed counsel, but argued that the Sixth Amendment right to self-representation implies a
right of access to legal facilities and materials necessary to prepare his defense. Id. at 1244. The
court in Wilson noted the Faretta court's recognition that a defendant who rejects the assistance
of counsel necessarily relinquishes many of the benefits associated with representation by
counsel. Id. at 1245. Availability of court appointed counsel is a constitutionally adequate
means of access to research materials. Id. "A defendant may not effectively force the
Government to provide aparticular means ofaccess to the courts by denying the means offered."
Id.

Discussion
        On each ofthe several occasions that Appellant complained he required access to a law
library to prepare his defense, the trial court informed him that court appointed counsel would
provide the access to legal research materials. Each time the trial court reiterated its offer to
appoint counsel to represent him, Appellant persisted in rejecting access through an attorney and
 insisted on being provideda law library.
        The Wilson court noted that nowhere in Faretta did the Supreme Court "suggest that the
 Sixth Amendment right to self-representation implies further rights to materials, facilities, or
 investigative or educational resources that might aid self-representation." Id. Appellant was not
 denied due process. Appellant's first issue isoverruled.

                                  Sufficiency of the Evidence
        In his second issue, Appellant maintains the evidence is insufficient to support his
 conviction.
         In determining a challenge to the sufficiency of the evidence, the reviewing court must
consider all the evidence in the light most favorable to the verdict and determine whether any
rational trier of fact could have found the essential elements of the crime beyond a reasonable
 doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2788-89, 61 L. Ed. 560
 (1979); Brooks v. State, 323 S.W.3d 893, 894-95 (Tex. Crim. App. 2010).
         In order to prove the offense charged in this case, the State was required to establish
 beyond a reasonable doubt that Appellant intentionally, knowingly, or recklessly by omission
 caused bodily injury to a child. See TEX. PENAL CODE ANN. § 22.04(a)(3) (West Supp. 2014).
 "Bodily injury" means physical pain, illness, or any impairment of physical condition. Id.
 § 1.07(a)(8) (West Supp. 2014). The complainant, Jeremy, made a crude written statement
 accompanied by an affidavit ofnonprosecution from his mother, recanting the accusation against
 his uncle. In his statement, he maintained that his difficulty inbreathing after his uncle hithim in
 the chestwas due to an asthma attack. Although a reluctant witness, Jeremy testified at trial that
 his uncle hit him in the chest knocking him to the ground. He testified that the blow caused pain,
' left a red mark on his chest, and made it difficult for him to breathe for a period oftime.
       Deputy Simpson testified that when he arrived on the scene, Jeremy was mad and crying.
 Jeremy said his uncle had hit him in the chest and knocked him down in the road. Deputy
 Simpson observed the red mark on Jeremy's chest as well as other minor bruises and abrasions to
 Jeremy's face, neck, knees, and back apparently sustained in the same incident. Through Deputy
 Simpson, the State introduced photographs ofJeremy's injuries.
       The evidence is sufficient to support the conviction.                      Appellant's second issue is
 overruled.



                                                   Disposition

         Having overruled Appellant's two issues, we affirm the judgment ofthe trial court.

                                                                                Bill Bass
                                                                                  Justice


 Opinion delivered August 5,2015.
 Panel consisted ofWorthen, C.J., Neeley, J., and Bass, Retired J., Twelfth Court ofAppeals, sitting by assignment.


                                              (DONOT PUBLISH)
    APPENDIX A
MOTION FOR NEW TRIAL




         17
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