Ex Parte: Kurnicus Hayes

Opinion

Order entered May 6, 2021

In The Court of Appeals Fifth District of Texas at Dallas

No. 05-21-00203-CR

EX PARTE KURNICUS HAYES

On Appeal from the 283rd Judicial District Court Dallas County, Texas Trial Court Cause No. WX20-93394-T

ORDER

Before the Court is appellant’s April 30, 2021 first motion to extend the time

to file appellant’s brief. As grounds for extension, appellant states he has not yet

received the reporter’s record and the clerk’s record reflects the wrong underlying

trial court case number.

The trial court’s order denying relief indicates the trial court did not conduct

a hearing on appellant’s writ application. Therefore, there is no reporter’s record

in this case.

Turning to appellant’s complaint about the clerk’s record, we note that

appellant’s writ application indicates it was filed to address an alleged double jeopardy issue which appellant contends invalidates his conviction in trial court

cause no. F13-30966-T. Appellant’s writ application references cause no. F13-

30966-T as the applicable cause number, and it further indicates he appealed that

conviction to this Court as appellate cause number 05-16-00740-CR. A review of

our records shows appellate cause number 05-16-00740-CR involves an appeal

from appellant’s conviction in trial court cause number F13-30966-T. See Hayes

v. State, No. 05-16-00740-CR, 2017 WL 5663612 (Tex. App.—Dallas Nov. 27,

2017, pet. ref’d) (not designated for publication). The clerk’s record in cause no.

05-16-00740-CR contains a written order for a mistrial in appellant’s first trial

arising from a hung jury that reflects the circumstances appellant alleges in his writ

application. Thus, it appears appellant filed his writ application to complain about

an alleged double jeopardy issue in trial court cause no. F13-30966-T.

In processing appellant’s writ application, the district clerk issued a writ

cause number for the case: WX20-93394-T. However, when the district clerk

filled out a line at the top of the writ application, the district clerk listed the

underlying trial court number as F17-31318-T, an extraneous case involving

appellant. All of the underlying trial court case documents filed with the clerk’s

record in the current appeal are documents from cause no. F17-31318-T. There are

no documents in the clerk’s record that arise from the proceedings in trial court

cause no. F13-30966-T.

–2– Appellant is appealing the trial court’s November 23, 2020 order finding no

issues requiring a hearing. In that order, the trial court concludes appellant’s writ

application is frivolous and denies relief on the merits. The trial court’s order

states it is issued in writ cause no. WX20-93394-T, but does not refer to either trial

court cause number, and it does not provide any discussion of the case at issue.

Based on the record before us, the Court cannot determine whether the trial

court issued its order finding the writ application frivolous as applied to trial court

cause no. F13-30966-T or as applied to trial court cause no. F17-31318-T. To

clarify the trial court’s intent, we ORDER the trial court to review this matter and

prepare findings of fact and conclusions of law stating whether the trial court’s

November 23, 2020 order finding no issues requiring a hearing in writ cause no.

WX20-93394-T involved considering the writ application as applied to trial court

cause no. F13-30966-T or as applied to trial court cause no. F17-31318-T. The

trial court is ORDERED to conduct such proceedings or hearings as it deems

necessary to make the appropriate findings of fact and conclusions of law.

We ORDER the trial court to transmit, within THIRTY DAYS of the date

of this order, its written findings to the Dallas County District Clerk for filing in a

supplemental clerk’s record.

This appeal is ABATED to allow the trial court to comply with this order.

The appeal shall be reinstated when the findings are received or at such other time

–3– as the Court deems appropriate. The Court will set a new due date for filing

appellant’s brief upon reinstatement of the appeal.

We DIRECT the Clerk of the Court to transmit copies of this order to the

Honorable Lela D. Mays, Presiding Judge, 283rd Judicial District Court; to Felicia

Pitre, Dallas County District Clerk; to counsel for the State; and to Kurnicus

Hayes, pro se.

/s/ ERIN A. NOWELL JUSTICE

–4–