Ex Parte: Kurnicus Hayes

• Court: Court of Appeals of Texas
• Decided: December 21, 2022
• Docket: 05-21-00203-CR
• Status: Published

Opinion

AFFIRMED and Opinion Filed December 21, 2022

S 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

MEMORANDUM OPINION Before Justices Myers, Carlyle, and Goldstein Opinion by Justice Goldstein Appellant challenges the trial court’s denial of his writ of habeas corpus

without a hearing.1 See TEX. CODE CRIM. PROC. art. 11.072 § 3(a). We affirm in this

memorandum opinion. See TEX. R. APP. P. 47.4.

After the trial court granted a mistrial due to a deadlocked jury in the first trial,

a second jury found appellant guilty but recommended suspending his sentence in

favor of community supervision. The trial court followed that recommendation,

suspended the five-year sentence, and placed appellant on ten years’ community

supervision on June 13, 2016. Appellant prosecuted a direct appeal to this Court, and

1 In determining no hearing was required the trial court found that “Applicant is manifestly entitled to no relief and that his application is frivolous.” this Court affirmed the conviction. See Hayes v. State, No. 05-16-00740-CR, 2017

WL 5663612 (Tex. App.—Dallas Nov. 27, 2017, pet. ref’d) (mem. op., not

designated for publication).2 In the November 6, 2020, article 11.072 habeas

proceeding that is the subject of this appeal, appellant raises three issues: double

jeopardy, error to grant mistrial without first taking less drastic action, and error to

grant mistrial because he never requested or consented to the mistrial.

A court may not grant relief pursuant to article 11.072 “if the applicant could

obtain the requested relief by means of an appeal under Article 44.02 and Rule 25.2,

Texas Rules of Appellate Procedure.” TEX. CODE CRIM. PROC. art. 11.072, § 3(a).

Habeas corpus is an extraordinary remedy, available only when there is no other

adequate remedy at law, and even constitutional claims are forfeited if the applicant

had the opportunity to raise the issue on appeal. See Ex parte Townsend, 137 S.W.3d

79, 81 (Tex. Crim. App. 2004); Ex parte Anwuzia, No. 05-21-01083, 2022 WL

3273724, at *2 (Tex. App.—Dallas Aug. 11, 2022, no pet. h.) (mem. op., not

designated for publication).

As noted, appellant prosecuted a direct appeal to this Court after conviction

in the second trial. He raised three issues, none of which were double jeopardy,

though that issue was indisputably ripe at the time. See Hayes, 2017 WL 5663612,

at *1. Therefore, he forfeited the issue, and may not raise it in habeas proceedings.

2 The facts and record on direct appeal are well known and therefore used herein only where necessary for analysis and determination of this extraordinary writ. –2– See Townsend, 137 S.W.3d at 81; Anwuzia, 2022 WL 3273724, at *2. We overrule

appellant’s first issue.

Similarly, we overrule appellant’s second and third issues, both of which

pertain to the trial court’s decision to grant a mistrial, and both of which could have

been—but were not—raised on direct appeal.3 See id.

Having overruled appellant’s three issues, we affirm the order of the trial

court.

/Bonnie Lee Goldstein/ BONNIE LEE GOLDSTEIN JUSTICE Do Not Publish TEX. R. APP. P. 47.2(b)

210203F.U05

3 In any event, appellant’s current mistrial complaints would have found no success even had he raised them on direct appeal. The trial court did take less drastic action before granting mistrial by giving the deadlocked jurors an Allen charge. See Barnett v. State, 189 S.W.3d 272, 277 n.13 (Tex. Crim. App. 2006) (citing Allen v. United States, 164 U.S. 492, 501 (1896)); Ex parte McMillian, No. 05-11-00642-CR, 2011 WL 3795727, at *3 (Tex. App.—Dallas Aug. 29, 2011, pet. ref’d) (not designated for publication). And the record indicates appellant requested the mistrial: it contains the trial court’s May 8, 2015 order stating it is granting appellant’s oral motion for mistrial. Moreover, appellant’s motion for a transcript of the first trial in preparation for a second trial stated he made that request after “[s]aid Defendant was granted a Mistrial.” See Ex parte Garrels, 559 S.W.3d 517, 522 (Tex. Crim. App. 2018); Ex parte Little, 887 S.W.2d 62, 65 (Tex. Crim. App. 1994). Even had appellant raised these issues on direct appeal, the record directly contradicts appellant’s assertions, and they are without merit. –3– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

EX PARTE KURNICUS HAYES On Appeal from the 283rd Judicial District Court, Dallas County, Texas No. 05-21-00203-CR Trial Court Cause No. WX20-93394- T. Opinion delivered by Justice Goldstein. Justices Myers and Carlyle participating.

Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered this 21st day of December 2022.

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