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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]
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Ex PARTE SHANNON COLE SM\TH 23RD DlSTRicT CouRT FRoM BRAzoRlA‘couNTv, rExAs

 

 

 

 

 

 

 

 

 

 

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AFFIDAVIT

 

THE STATE OF TEXAS
COUNTY OF BRAZORlA

[PRlNT the name of the county where this statement is being notarized.]

BEFORE ME, the undersigned authority, on this day personally appeared
cherie Hiu-smith ,Who

 

[PRINT the first and last names of the person who will sign this statement.]

swore or affirmed to tell truth, and stated as follows:

"My name is Cherie Hi|l-Smith
[PR]NT the am and last names °fthe P€rSOn who will sign this statement.]

 

l am of sound mind and capable of making this sworn statement l have personal knowledge of

the facts written in this statement l understand that if I lie in this statement l may be held

criminally responsible This statement is true.

 

 

from my husband Shannon Cole Smith who was in Alvin, TX, l only spoke to the

 

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Q,_Lwas_and-still-Legal~‘%married to Shen.non F`o!e Qm.ith in the State cf Texae.

 

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when it Was purchased

 

 

 

 

TexasLawl-{elp.otg Sworn Statement-l~.Afiidavit
Last Update: 6-l6-05 Page l 0f5

 

 

 

 

 

 

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Last Update: 6-16-05 Page 2 of5

 

 

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Sworn Statement-l-Afii ,vit

TexasLawl-lelp.org
Last Update: 6-16-05 Page 3 0t`5

 

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TexasLawHelp.org . Swom Statcmem-l-Aft'tdavit
Last Update: 6-16-05 Page 4 oi`S

 

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\_
/’hr/v//r il>lr 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

