Cumbee, Keith Stuart

• Court: Court of Appeals of Texas
• Decided: January 12, 2015
• Docket: WR-77,210-03
• Status: Published

Opinion

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IN THE coURT oF cRIMINAL APPEALS AUSTIN, TEXAS

APPLICANTS oBJEcHoNS To THE TRIAL coURTS FINDINGS IN ms wRIT oF HABEAS coRPUS AND REQUEST To REMAND FOR EVIDENTIARY HEARING

TO THE HONRABLE COURT:

Comes now Keith Stuart Cumbee, Applicant in the above entitled and numbered cause and respectfully presents this his Objections to the trial courts findings and his request that the case be remanded for an evidentiary hearing and in support thereof will respectfully show the following:

ONE Applicant tenders that his Habeas €orpus has been tagged with the title of "Subsequint Writ" basesaupon Applicant filing of previous Habeas Corpuses within the Smith County Court and it is Applicants firm opinion that his previous Writs were not attacks on his Motion to Revoke Probation but attacks against his' 'Original Conviction" and.that he gave plain and clear instructions to the court that this Habeas Corpus was not against his original conviction but against his Revocation of Probation Hearing. See attached letter to clerk as well as page four (4) of his Habeas Applcation.

TWO Moreover, Applicant tenders that this Habeas Corpus is based upon information discovered "After" his intitial filing of the previous-Habeas Writs as can be validated“by the attached envelope from the FJackson Law Firm" whi§h is postmarked August 08, 2014 from which several of the relied upon documents were presented to this Applicant. See attached envelope and pages numbered

#51, #57, #59 all of which lay a part of the crucial allegations in Applicants

Habeas Corpus claims herein. and therefore, Applicant meets the burden of

11.07 (4) with the introduction of newly discovered eveidence.

THREE

In addition to the following Applicant proffers that the State can consider the merits of Applicants claim simply because "It is unlikely that applicant' Saw or could have known what the labratory report and offense reports reflected" Because he had never layed eyes on the documents prior to his Lawyer supplying them inhhis last letter to this applicant on 08/08/2014. see document #51 "Lab Report"; Applicant therefore tenders that he has met his burden under Artcile 11.07, section é(a)(l). _ Further, Applicant tedners he did receive other and further documents that he did not know existed from Louis Rogers on 08/27/2014, withnsuch, Applicant submits he should be allowed to pursue this his writ of Habeas Corpus and lastl§y offers; EX Parte KNipp 236 S,w_3d 214 (Tex; Crim. App. 2007).

§Q§§ Applicant argues that in Minnieweather v. State 636 S.W.2d 235 the Statel made it clear that a Defendant could not file a collateral attack on his originaly Conviction while his Revocation hearing was pending, therefore, it is the firm and sincere belief of this Applicant that there exist a clear and distinct seperation between the Original conviction and the revocation hearing and based upon such Applicant chose, with this Application, to challenge not his' original conviction but the violation of his constitutional rights at and

duringnhis revocation of probation hearing

PRAYER v Applicant prays that this Honorable Court grant this his Objections to the trial courts findings andsremands this cause for an evidentiary hearing as soon as possible.

Applicant proffers that he has read this Document and all it contains and

states under penalty of purjury_that it is true and correct o the best of

his knowedge. _ ` y ` Respectfully Submitted, ’ \\ “Q§l,/

e tuart Cum ee # 699482

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J. CO. ' 1015 RoGERS. sum oouN'rY ols'mcr arm _ _ »-'.~Y

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Déar Nrs;- R.Ogers.

Greeting*s, enclosed, please find my application for writ'of habeas corpus pursuant to Art. 11.07 sec, 3 (aj.

l respectfully request that you bring this to the attention fo the court at your earliest time possible.

Please note that this is not an attack on my original conviction but rather a constitutional challenge to the actual Probation Revocation Hearing and should not be construed as a subsequent writ.

I would like to thank you in advance for your time in regards to this matter and look forward to hearing from you soon.

Sir;_ce_rely-,' 01 _ . ' ks 111 sTuART cUMBEE. APPLIGANT

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FIL-ED

!_O!S ROGERS

Cause No. 007-1820-03-C

ozsi“n:or cLERK

IN THE 7“1DIsTRICie<':"

EX PARTE § _ § $M_ITH couNTY. YE><.AS § OF BY- 5 7 ' ' _ . § b - §§Pt")w',° KEITH sTUART CUMBEE § sMITH CoUNTY, TEXAS

, STATE’S ANSWER TO SUCCESSIV.E‘ APPLICATION FOR WRIT OF HABEAS CORPUS

TO THE HONORABLE JUDGE OF THE 7‘h DISTRICT COURT:

Pursuant to Section 3 and Section 4, Article ll.07 of the Texas Code of

lCriminal .Procedure, the State, acting through its undersigned Assistant Criminal

District Attorney, urges the Court to tind that there is no necessity for a hearing on any of Applicant’s allegations and to recommend relief be denied. This is a successive Writ application under Article l 1.07. I. FlRST ART. 11.07 WRIT APPLlCA'l`ION

On February l6, 2012, Applicant filed With the Court ofCriminal Appeals his

first application for habeas relief under Art. l l .()7 of the Code of Crirninal Procedure.

The Court subsequently denied relief on this application on March 21, 2009. (WR- d

77,210-01 /007-1820-03-A). II. SECOND ART. 11.07 WRlT APPLlCATIoN

On October l l, 2013, Applicant filed With the Court of Criminal.Appeals his

second application for habeas relief under Art. 1 1.07 of the Code of Criminal Procedure.. The Court dismissed this application as a subsequent writ on January 8, 2014. (WR-77,210-02 /007-1820-03-B). III. THE CURRENT WRIT APPLICATION

On December 9, 2014, Applicant filedthis, his third Art. ll.07 application for a Writ of Habeas Corpus under the above-numbered cause. IV. STAT`E'MENT OF FACTS

The State challenges all factual allegations made by Applicant in his Writ application. This is Applicant’s third and subsequent Writ application and it appears to raisel:c-omplaints that have been available since the time of his trial and before his original Writ applicatio§ In addition, Applicant has failed to allege Sufficient facts for this Court to determine that he has satisfied the dictates of Article l l.07'(4) of the Texas Code ofCriminal Procedure. V. APPLICANT’S BURDEN OF PROOF

This is a subsequent Writ application Which falls under the prohibition found in Article l l.07. Texas Code of Criminal Procedure Art. l l.O7(4)'states that:

If a subsequent application fora Writ of habeas corpus is filed after filing an initial application, a Court may not consider the merits of

or grant relief based on the subsequent application unless the application _ _ contains sufficient specific facts establishing that:

(l) the current claims and issues have not been and could not have been presented previously in an original application or in a previously considered application filed under this article because the factual or legal basis for the claim Was unavailable on the date the Applicant filed the previous application; or, (2)'by a preponderance of the evidence, but for a violation of the United States Constitution no rational juror could have found the Applicant guilty beyond a reasonable doubt.

TEX. CoDE CRlM. PRo. ANN. Art. 11.07 (4) (Vernon 2014).

Thus, under the plain language of the statute, once Applicant filed`his original application under this cause number, all subsequent applications regarding the same ‘ conviction must meet one of the two conditions set forth in Art. 1-1.07(4). The Court of Criminal Appeals has previously determined that this subsection of Art. l l.07 Was intended “to limit a convicted person to ‘one bite at the apple.”’ Ex parte Whitesicle, 12 S.W.3d 819, 820 (TeX.Crim.App. 2000); Ex parte Torres, 943 S.W.2d 469, 474 (Tex.Crim.App. 1997) (under Art. ll.07 (4), “subsequent applications” includes all applications for Writs of habeas corpus regarding the same conviction).

Applicant here has not made the requisite preliminary showings for consideration of a subsequent writ. His claim ofineffective assistance of trial counsel rests entirely upon allegations existing since the time of trial. Applicant has further

failed to show any reason Why he could not have raised the current grounds for relief

in either of his previous Writ applications

Lz.)

VI. CoNCLUsIoN

This Court’s authority is strictly limited by Article ll.07 to finding that this current application represents a subsequent application without any exception to the rule regarding the same. The Court “ may not consider the merits of or grant relief’ in a subsequent writ application without the requisite showings. TEX. CODE CRIM. PRO. Ann. Art. ll.07 (4) (Vernon '201_4). There is nothing in this subsequent writ application that comes remotely close to establishing this'burden under the law.

Moreover, Applicant has not established that he is entitled to relief. This application

has no merit and should be denied.

ViI. PRAYER WHEREFORE, PREMISES CONSIDERED, the State prays that the Court find that there are no controverted, previously unresolved facts material to the legality of Applicant’s confinement, that there is no necessity for a fact-finding hearing as there is ample evidence in the record for the Court to rule on the relief sought, that the Court enter Findings of.Fact and Conclusions of Law, and recommend that, since Applicant has failed to meet his burden in filing a subsequent writ application, the Court cannot reach the merits of his claims, and send him hence without delay. Respectfully submitted, D. l\/IATT Bl`NGHAl\/I

Criminal District Attorney Smith County, Texas

Miéhael J. West

Asst. Criminal District Attorney SBOT# 21203300

100 N. Broadway, 4th Fl.

Tyler, Texas 75 702

(903) 590-1720

(903) 590-1719 (fax)

CERTIFICATE oF SERvICE l hereby certify that a copy of the State’s Answer in Op_position to Applicant’s application for writ of habeas corpus was served United States mail on December 30, 2014, on Applicant, Keith Stuart Cumbee, TDCJ-ID # 1699482, Texas Department of Criminal Justice,'Stevenson 'Unit, 1525 Fl\/l 766, Cuero, Texas 77954.

WQ

Micélribel J. West

EX PARTE

Cause No. 007-1820-03!€

lN THE 7"‘ DISTRICT CoURT

§

§ GF ,

§ ' y . KEITH sTUART CUMBEE § sMITH CoUNTY, TEXAs

CERTIFICATE: wRIT oF HABEAS CORPUS FINDINGs oF FACT AND CoNCLUsioNs oF LAw

On December 9, 2014, the defendant in Cause Number 007-1820- 03 filed his

third Application for a Writ ofHabeas Corpus. The State filed a Response. The Court hereby enters its findings and conclusions.

The Court takes judicial notice of all prior proceedings, reporter’s records, the

documents and papers contained in the files, and the docket sheets in Cause Number 007-1820-03 and the first, second and third Applications for Writ of Habeas Corpus in Cause Numbers`007-1820-03-A, 007-1820-03-B and 007-1820~03-C, respectively. The Court enters the following F indings of Fact and Conclusions of Law:

1._

On February 16, 2012, the defendant filed with the Court of Criminal Appeals his first application for habeas relief under-Art. l l.07 of the Code of Criminal Procedure. The Court subsequently denied relief on this application on l\/larch

21, 2009. (WR-77,210-01 /007-1820-03-A).

On October ll, 2013, the defendant filed with the Court of Criminal Appeals his second application for habeas relief under Art. ll.07 of the Code of

Criminal Procedure. The Court dismissed this application as a subsequent writ on January 8, 2014. (WR-77,210-02 /007-1820-03-B).

On December 9, 2014, the defendant filed his third Art. 11.07 application for a Writ of Habeas Corpus under the above-numbered cause.

The defen`dant’s writ application is a subsequent writ application under Article l

ll.07(4) of the Code of Criminal Procedure. As such, he must make'the requisite showings under that section that:

Page l

(l) the current claims and issues have not been and could not have been presented previously in an original application or in a previously considered application filed under this article because the factual or legal basis for the claim was unavailable'on the date the Applicant filed the previous application; or, ~

(2) by a preponderance of the evidence, but for a violation of the United States Constitution no rational juror could have found the Applicant guilty beyond a reasonable doubt.

5. The defendant has failed to meet his burden with this current application. Specifically where he has not show good cause why he could not raise his current grounds in a previous writ application

6. The legal procedures in these cases were proper and as provided by the Constitution and Texas law.

The Court concludes that the defendant may be in abuse of the writ process and that it cannot consider the merits of, or grant relief based upon, this subsequent writ application because the defendant has not met his burden under the law. Alternatively, the defendant has not raised a meritable claim and this‘application should in all things be DENlED.

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ORD_ER

The Court orders the Clerk of the Court to immediately transfer to the Court of Criminal Appeals:

(l) a copy of the Application for Writ of Habeas Corpus;

(2) any answers and waivers executed by the State;

(3) ja copy of the files and docket sheets in the original cause of action and the files and docket sheets in the first Application for Writ of Habeas Corpus; and

(4) This certificate

SIGNED AND CERTIFIED on this day of , 201 .

HONORABLE KERRY RUSSELL Judge, 7th District Court SMITH COUNTY, TEXAS

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