Travis County Sheriff's Office Senior Certified Peace Officer Dennis Tumlinson v. Carolyn Barnes

December 23, 2015

IN THE THIRD COURT OF APPEALS /RECEIVED\
AUSTIN TEXAS [
DEC 2 3 2015

DENNIS TUMLINSON § Vwrowwofafpeals^

V. § 03-15-00642-CV
CAROLYN BARNES, ETAL §

MOTION FOR LEAVE TO SUPPLEMENT RECORD AND
TO EXTEND TIME FOR FILING APPELLEE'S BRIEF

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW, CAROLYN BARNES, hereinafter referred to as

BARNES, and files this motion for leave to supplement the Clerk's Record

and to extend time for filing Appellee's Brief, and in support thereof would

show the court as follows:

1. On December 9, 2015, Barnes filed a motion for extension of

time to file the appellee's brief because she was still awaiting arrival of the

clerk and court reporter's record, which the Clerk's Office stated they

mailed on December 4, 2015. Barnes received the CD on December 10,

2015, the same day that she received a very disturbing letter via email from

Jeffrey Kyle returning all her documents recently filed in the Third Court

and the trial court.

2. On December 9, 2015, when Barnes requested an extension of

time to file the Appellee's Brief until December 23, 2015, she could not

have anticipated the email from Jeffrey Kyle on December 10,2015. It took
Barnes the remainder of the week to investigate and respond to Jeffrey

Kyle's unilateral actions outside the due course of law. Barnes secured

Orders from the Administrative Judge and timely responded to the

accusations of Jeffrey Kyle without any benefit of substantive due process

on December 17,2015.

3. It was only then that Barnes was able to begin going through

the CD of the record to insert the cites into Appellee's Brief. There are no

hyperlinks that work in the CD and Barnes literally has to scroll through

every page. The CD is not even a searchable pdf. In going through the

tedious process, Barnes discovered many missing documents—some due to

lack of designation and some due to oversight or miscommunication. There

is no way that Barnes could have anticipated that there would be so many

gaps in the Clerk's Record. Barnes immediately drafted a letter to the

District Clerk requesting a supplementation ofthe record. A true and correct

copy of the letter is attached hereto as Exhibit A.

4. When Barnes started going through the record, she discovered

for the first time, the letter that was hand-delivered to the trial Judge by

Appellant's counsel requesting the court reporter's record. Barnes was not

ever served with a copy of that letter that was hand-delivered to the trial
Judge. Neither Appellant's attorney nor the Judge made Barnes aware of

this letter.

5. Further, as Barnes went through the Clerk's Record, Barnes

discovered for the first time, a letter to the Clerk from Appellant's counsel

designating matters to be included in the record. Neither Appellant's

counsel nor the Clerk notified Barnes of this designation or sought Barnes'

designation of matters to be included in the record on appeal. As is shown

in the letter attached, there are many documents that were not designated for

inclusion that will support the Judge's decision in this matter. These matters

include Barnes' Brief in Support of Response to Motion to Dismiss filed on

August 14, 2015, Plaintiffs Objections, Motion to Strike and Response to

Travis County Defendants' Late-Filed Supplement to Third Motion to

Dismiss filed on September 8, 2015, and Barnes' Brief on Constitutional

Rights filed on September 8,2015.

6. The missing documents were a combination of non-designation

and oversight because Barnes does see the designation of the Plaintiffs

Objections, Motion to Strike and Response to the Travis County Defendants'

Late-Filed Supplement to the Third Motion to Dismiss filed on September 8,

2015 listed in Appellant's designation letter; however, it is not in the C.R.

The Appellee's Briefs were not designated by Appellant for inclusion in the
record, but were documents considered by the trial judge in reaching her

decision and, in fairness, should be included in the C.R.

7. Barnes is filing this motion for leave to supplement the record

and for an extension of time to file the brief in good faith and not for

purposes of delay, but so that justice may be done.

8. The Brief is due in three days and as soon as the Clerk provides

the supplemental record, Barnes should be able to file the Brief within 24

hours thereafter. The Brief is ready to file and the places for the cites are

bracketed and just needing the volume and page number.

9. Tumlinson certainly will not be harmed by the delay because

Barnes has been foreclosed from appealing the summary dismissal of the

other Travis County defendants in this case due to the refusal of the trial

court to grant Barnes' motion to sever claims so they can be appeal that was

filed back in September and set for hearing in October and November

without action by the Court.

10. This case cannot proceed in the trial court until the appellate

court takes action. The trial court has failed and refused to sever the

dismissed parties from the suit so that Plaintiff can appeal the summary

dismissal of those defendants under an abuse of Chapter 13 Tex. R. Civ.

Proc. Plaintiff is being hindered from appealing the adverse rulings of the
trial court, while Tumlinson is allowed an interlocutory appeal. This is

patently unfair when the abuserand criminal is employed by the government

and can destroy all the evidence of his crime and the malicious, violent

assault on Barnes. This assault was in broad daylight in the Travis County

Courthouse clearly captured on the security video cameras. Despite Barnes

securing an immediate Order from a District Judge to preserve and protect

that video recording that would prove the truth, these State employees

destroyed the video anyway. Despite numerous open records requests,

letters and packets to four separate grand juries that were intercepted by the

State employees, and requests under the freedom of information act, all

discovery was denied to Barnes in both the malicious prosecution and in the

civil case which is now being appealed. Barnes served discovery but the

biased trial court allowed all the defendants to merely ignore the discovery

requests. The trial court even refused to hear the motions to compel

discovery.

11. Due to the continuing criminal conspiracy, these appeals are

much more involved that regular appeals and require much more work to

brief and present. In a normal case, the parties will have been allowed some

semblance of substantive due process and would have been afforded the due

course of law and equal rights, but Barnes has been deprived of all rights
secured by the Texas Bill of Rights for over five years now. Barnes has

even been deprived of any right to file a petition to redress these grievances

through declaratory judgment and prospective injunctive relief. The trial

court dismissed all the defendants under the false pretense that all these

criminal offenders have absolute sovereign immunity to violate the Texas

Bill of Rights.

12. Barnes timely filed her notice of appeal from the summary

dismissal of the other Travis County defendants, but is not being allowed to

proceed with those appeals. It is patently unfair to allow this interlocutory

appeal while depriving Barnes of any rights to appeal. This not only violates

equal protection under the law, it also violates substantive due process and

the due course of law. Additionally, the Clerk ofthe Third Court of Appeals

now takes the position that even though Barnes timely filed her notices of

appeal and the trial court refused her request to sever the claims so they

could be timely appealed, that Barnes will now be forever barred from

appealing these summary dismissals without any semblance of substantive

due process or the due course of law. Barnes was literally deprived of any

discovery or trial. All of the claims and causes of action were summarily

dismissed under Rule 91a, Chapter 13 or 27, or by summary judgment

without discovery, and then to really make sure Barnes was forever
outlawed and disfranchised, Barnes was summarily deemed to be a

vexatious litigant under Chapter 11, again without any substantive due

process or jury trial. Thesewere all malicious abuses ofprocess, but without

any reasonable or meaningful appellate remedies there can be no rule of law.

Barnes was summarily deprived of any reasonable or meaningful avenue to

vindicate the gross and repeated violation of her rights guaranteed as forever

inviolate by the Texas Constitution, just as she has been for over five years.

All without any appellate remedy or oversight.

13. The brief is due on December 23, 2015. Barnes did not obtain

the CDuntil the 10th and on the same day, shewas hit with a shocking letter

from Jeffrey Kyle that took until December 17,2015 to obtain the orders and

fully respond to his letter and unwarranted return of Barnes' timely and

properly filed documents.

14. Barnes promptly notified the Clerk of the necessary

supplementation by letter dated December 18, 2015 and emailed to the

specific Clerk handling the supplementation on December 19,2015. Barnes

believes the Clerk will be filing the supplementation in due haste.

15. Barnes is not allowed to access any internal records of any of

the courts. Barnes has been left indigent as a direct and proximate result of

the malicious actions of the criminal conspiracy and the complete
suspension of the laws, Constitution, and writ of habeas corpus for the past

five years.

16. To be timely, the brief should be mailed to the Court today;

however, without the supplemental record, Barnes is unable to properly cite

to the record on appeal in the brief as required by the rules of appellate

procedure.

17. Barnes is requesting an extension of time for 7 additional days

due to the intervening holidays because until the supplemental CD arrives,

Barnes will be unable to complete the brief. This is a time consuming

process with such a voluminous record.

18. This will cause no harm or delay to the other side because when

Barnes filed her appeals and motion to sever to make the summary

dismissals final, the trial court failed and refused to sever the summary

dismissal orders and parties. Thus, Barnes is not able to appeal those

companion decisions that were made and heard at the same time as

Tumlinson's motion to dismiss under Chapter 13.

19. Thus, the Appellee's Brief is due on December 23, 2015.

Appellant does not agree to this request for extension of time and

Appellant's counsel opposes this request.
 20. Barnes is requesting an extension of time to December 30,2015

to allow for any closing of offices during the intervening holiday. Barnes

will make every effort to file the brief earlier if the supplemental record is

made available immediately. Once the supplemental record is supplied,

Barnes can file the brief within 24 hours if the post office is open due to the

intervening holidays.

21. Barnes is requesting an extension of time for 7 additional days.

This is her second request for an extension of time. The first extension of

time was for 14 days and Barnes now seeks an additional 7 day extension of

time to allow the supplementation of the record because of the week it took

to respond to the unexpected letter and return of documents from Jeffrey

Kyle and anticipation of office closing and post office closing during the

intervening holiday.

22. This request is being made in good faith and not merely for

delay. BARNES prays for such other and further relief to which she may be

entitled, whether at law or in equity.

Respectfully submitted,

Carolyn Barnes
419 Indian Trail
Leander, Texas 78641
Barnes.legalguidance@gmail.com
281-467-8681
 JURAT

COUNTY OF WILLIAMSON

STATE OF TEXAS

Pursuant to Texas Civil Practices and Remedies Code Sec. 132.001, I,
Carolyn Barnes, do hereby swear and affirm that the facts stated above are
true and correct based on personal knowledge.

I aver that "My name is Carolyn Barnes, by date of birth is January 12,
1957, and my address is 419 Indian Trail, Leander, Texas 78641 in the
United States of America. I swear under penalty of perjury that all the facts
stated herein are within my personal knowledge and true and correct.

I have read the foregoing Motion for Extension of Time to File the
Appellee's Brief and the facts stated within that are not verified by the
record are true and correct to the best ofher knowledge.

SWORN TO BEFORE ME ON THIS 19th day of December, 2015.

By:_
Carolyn Barnes

10
 CERTIFICATE OF CONFERENCE

Barnes has conferred with opposing counsel sending several emails to

him and he is not in agreement. In fact, Barnes had previously understood

that he had agreed to her first request for extension of time when in fact he

had not agreed. After his venomous written opposition filed with this court,

Barnes went back and re-read his email and in fact he had not agreed.

Barnes had misread his email in her haste to get the motion for extension of

time filed with the court in a timely fashion. Barnes could not imagine any

legitimate reason to oppose a reasonable request when she did not have

access to the record and he knew Barnes would need to cite to the record in

her brief. Anticipating a quick response of agreement, that is what Barnes

saw when she received his email response. Barnes now stands corrected.

He stated "we do object to an extension." Therefore, Appellant's counsel

does not agree to any requests for extension of time.

YUY"
Carolyn Barnes

11
 CERTIFICATE OF SERVICE

By my signature above, I hereby certify that a true and correct copy of

the foregoing document has been served pursuant to Rule 21a of the Texas

Rules of Civil Procedure on all counsel of record on this the 21st day of

December 2015.

12
 Carolyn Barnes
419 Indian Trail
Leander.TX 78641

December 18,2015

Trish Winkler
Civil Appeals Clerk H
Travis County District Clerk's Office
P.O. Box 679003
Austin, Texas 78767-9003

RE: COA No. 03-15-642-CV Dennis Tumlinson v. Carolyn Barnes
Cause No. D-l-GN-15-000877
Carolyn Barnes v. Texas Attorney General, et al

Dear Trish:

I am in receipt of the record you prepared for the defendant and filed witib the Third
Court of Appeals in the above cause. There were several matters left out of the record
designationthat are necessary for mis appeal. Would you please prepare a supplemental
Clerk's Record as soon as possible and file it with the Third Court of Appeals. Please
include the following documents in the supplemental record:

First Amended Answer filed July 8,201S;

Plaintiff's Motion to Enter a Default Judgment against DENNIS TUMLINSON filed on
July 9,2015. (There were severalmotions to enter defaultjudgment filed on mat date, but
I only need the one concerning DENNIS TUMLINSON);

Noticed ofUnequal TreatmentUnder the Law filed on July 9,201S;

Motion to Remove Complex Case from Central Docket filed July 9,2015;

Plaintiffs Motion for Continuance filed on July 10,2015.

Plaintiff's Supplemental Objections, Motion to Strike, and Motion to Quash Travis
County filed July 15,2015;

Plaintiff's Supplemental Notice ofUnequalTreatment filed on July 20,2015;

Sworn Statement Under Declaration of PenaltyofPerjury filed on July 27,2015;
Statement Under Declaration ofPenalty ofPerjury filed on August 12,2015;

Plaintiff's Briefin Support ofResponse to Motion to Dismiss filed August 14/18,2015;

Defendant's Motion to Stay Discovery filed August 19,2015;

Continuing Objections filed on August 20,2015;

Plaintiffs Third Supplemental and Continuing Notice of Unequal Treatment filed on
August 24,2015;

Plaintiffs Objections, Motion to Strike, Motion to Quash and Response to Travis County
Late-filedSupplementto Third Motionto Dismiss filed September8,2015;
Briefon Constitutional Rights filed on September8,2015;

All of these documents are needed for appeal in the above entitled cause and request is
made that you file the Clerk's Record in the Third Court of Appeals at your earliest
convenience.

We previously filed the Affidavit ofInabilityto Pay Costs on Appeal.

If you require anything further from me, if there are any deficiencies or defects in these
documents or this filing procedure, please advise immediately.

Thank you for your time and attention in this matter. If you have any problems,
concerns, or questions, please contact me.

TIME IS OF THE ESSENCE

Very truly yours,

Cto/vi/r
Carolyn Barnes
Barnes.legalguidance@gmaii.com
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