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. RECEIVED IN . • COURT OF CRIMINAL APPEALS
~ ~PR ., 17 2015 Gf.;~ ' • ·r •
· Apel Acosta, Clerk February 24,2015
Rhonda Hughey District Clerk County Courthouse 100 w. Mulberry · Kaufman, Texas 75142
RE: FILING WRIT OF HABEAS CORPUS
Dear Ms.Hughey,
Enclose please find the following instructments to be filed IN YOUR OFFICE for the district court's review of ihe merits.
1. Application for writ of habeas corpus 2. Request for legal representation 3. Notice of deposition by written questions 4.Daeposition by written questions ' 5. Petition to take deposition to investigate potential claim 6. Request for a hearing ,•'.
These are the original document's and a copy has be ~forward to Mr.Dennis Patman Jones for his review.
-·--· Ms.Hughey, I want to thank you in advance for your assistance-in this urgent matter.
c. c. filed /S/ 1( .__ yJ")T Kevin Menniefee .·'
~,.
~~uq~ ~0. 28736-86
STATE OF TEXAS § IN THE DISTRICT COURT
vs. § 86th JUDICIAL DISTRICT
KEVIN MENNIEFFE § KAUFMAN COUNTY, TEXAS
APPLICANT'S APPLICATION FOR A WRIT OF HABEAS CORPUS PURSUANT TO THE TEXAS CODE OF CRIMINAL PROCEDURE -. ARTICLE'S 11.01, 11.02, 11.04, 11.05, 11.08, 11.23, 11.42, and 11.43
... TO THE HONORABLE JUobE OF SAID COURT:
Now Comes, Kevin Menniefe, TDCJ-ID No.· #1727174, appearing pro...:se, thereafter referred to has the applicant, and he petitions said court pursuant to article's 11.01, 11.02, 11~04, 11.05, 11.08, 11.23, 11.42, and 11.43 of the Texas Code of Criminal ~rocedure. Also, pursuant to Article 1, section 12, of the Texas Constitution, and Article 5, section 8, of the Texas Constitution, that he presents his application for Writ of Habeas Corpus, to determine whether the State Court lacked jurisdiction of the subject matter or oy~r:
the applicant, and is he illegally confined or restraint in his liberty within this courts jurisdiction. Applicant request that this court conduct an 'evidentiary hearing and obtain wr~tten deposition's from his trial attorney and the accomplice witness pursuant to article ' . . ' 39.02 and 39.06 of the Texa:s Code of Criminal Procedure.
I. JURISDICTION
Pursuant to article's 11.01, 11.05, 11.08, 11.23, 11.23, 11.42, and 11.43 of the Texas Code of Criminal Procedure, this Court has jurisdiction to grant the relief requested herein. see EX PAFTE POWELL, 558 SW.2d. 480,481 (Tex.Crim.App. ~977): and EX PARTE WILLIAMS 786 SW.2d. 781,782 (Tex.App.-Houston [ 1st Dist I 1990, pet~ ~ef'd ).
I. SPECIAL STATEMENT TO THE COURT
Applicant is an indigent prisoner, layman of the law, acting without counsel, and as such requests that this court not to impose upon him the same high standard of the legal art which may be placed, in a pleading to prepare and filed by a learned member of the State Bar. Applicant further request that this court will consider this pro-se applican tion in a manner that will do substantial justice, with a measure of tolerance, pursuant the opinion in HAYNES VS. KERNER, 92 S.Ct. 594 (1972) •.
II.
STATEMENT OF THE CASE
1t . . J! THE UNDERLYING PROCEEDINGS. Applicant, Kevin Menniefee, is being held illegally in the Texas Department of Criminal Justice -ID, from a judgment interred in on Novemeber 17, 2010, in the 86th District ·court, Kaufman County, Texas in cause no. 28736-86.
THE RESPONDENT'S. The respondent's are the S0nTE OF TEXAS and app~lcant's trial attorney Dennis Pl':itman Jones, of Kaufman County, Texas.
RESPONDENT"S ACTION. Respondent illegally confined and restrainted applicant on April 30 2010, after the Honorable Howard V. Tygrett, pr;-esiding judge of the 86th Distrcit Court, of Kaufman County, .Texas, rendered judgment in two separate trial's under one indictment in cause no. 28736-86.
APPLICANT'S RESTRAINED. Applicant is illegally confined and restrainted in the Texas Department of Criminal Justice-ID by the respondent's in violation of.the United States Constitution; Texas Constitution Article 1 § 10, to be· indicted by a (irand Jury and the 'Statutory provision's setforth in the Texas Code of Criminal Procedure Ann. Atticles §§ 1.04; 2.04; 2.05; 15.04; 11.23; and 21.22.
2. III. STATEMENT OF FACTS
Appl~cant's original indictment alleged that he committed aggravated robbery,, a frist degree felony, pursuant to the Texas Penal Code §§ 29.02 (a). On September lOG,20lO::·. the State_,q_:l:. Texas amended the indictment to add§§ 29.03 (a)(3)~~), which are two separate and distinct offense's, amended by interpolate of the indictment alleg~ng Hindering Apprehension or Prosecution as Count TWO • There was no "VICTIM" asserting a criminal complaint or accusing the applicant of a crime against the laws of the State of Texas. The information based upon the complaint did not allege that the applicant engaged in an affirmative act that promoted the commission of the offense that the applicant is accused of.
Under the Due Process Clause of the Fourteenth Amendment, an accused in state court has the right to the "presumption of innocence", i.e., the right to be free from criminal conviction unless the State can prove his guilt beyond a reasonable doubt by probative evidence adduced at trial. When a jury is told of the presumtion , it is told, in effect, to judge an accused's guilt or innocence solely on the basis of the evidence adduced at trial and not on the basis of suspicions that may arise from the fact of his arrest, indictment, or custody.
The burden of proof in all criminal cases rests upon the State through9ut ., the trial and never shifts to the defendant •. "All persons are presumed to be innocent and rio person may be convicted of an offense unless each element .~. of the offense is proved beyond a reasonable doubt. The fact that . he has been.arrested, . . '• .. confined, or indicted for, or other-
wise charged with the offense gives riseto no inference of guilt at his trial. The law does not reqtiire a defendant to prove his innocence or produce any evidence at all. 'rhe pres·w.1pt ion o:C innocenL:e a.i.one is .su C:dcient l:.o acquit the defendant, ur!le::;.s the jw:.·o:t:·s a~e satisfied beycmd a_ n~a:.sonabl€· doubt of ;~he defendant! s guit: after· car:et:u:l and .impartial con:=,lder·ation of aU tite 2viuence in the case. 'l'he prosecution has the bur-den :;i p~oving tne uefenJant guilty anC it. um:Jt do =30 jy proving each and every element of tile offense charged beyond a reasonable dot::bt and if it fails to do so ' the defendant must be acquitted.
3. Defense Cuunsel 's sh_ould explaL1 the nec~ssity of full disclosur·e of all [acts known to his client foe an effective defense. Counsel, should assU111e .t:E:spons.i.bili:.y for· techni- cal and le9al, str·ategic anu tactical lsoues, such as whai.: witness to ccill, wh~i.:her and how i:o conduct cross examination, what jm:or-s to accept or str:ike, what 111otions to !llake, anc1 what evidence 1:0 introducE:. But counsel ohould const::lt YTith his clhmt on these qt::e.stion 1 B where such consultation is feasibl!:!. It is £undament.C:tl that a ue.fense counsel must be sc.cupulously candid and truthful in t·eptesentat.i.ons of any mat tee before c.t cpurt, this is· not only a basic ethical requir:e- liietJt but i.t is e::>s8ntial if the counsel is to be effective in his ro1e of advocate for i£ cuunsel !s reputation for: vet:ac.i.ty is suspect, he will lack. the confidence of the cour<: when ii: i.3 needead most to .se:r:ve his client.· Applice:un: contends L:hat his ~:>!counsel failed his legal duties to :cepcesent his cas~ in a couct of law.
CLAIM 0F DEPOSITION OF DENNIS PATMAN JONES 1
Appellant was not fully informed of his legal rights when he was interr -ogated by the Forney Police Department. In which he did stta.te that he was present at the scene of the crime. There was no evidence sh6~ing thai the appellant engaged in an affirmative act of committing the alleged robbery or hinding the apprehension of John Mitchell. The complaint written by officer Shane Prewitt did not al.lege that the appellant robbed anyone. The trial court lack jurisdiction over the subject~matter. Officer Shane Prewitt, complaint was based upon an unfounded theory of the States pro- secutor, and the appellant's presence at the scene of the crime did not include a culpable menti'll state or states of the offense. ·Appellant request the deposition of written question's of his trial attorn -ey Dennis Patman Jones and John Mitchell to show that the trial. court did not have jurisdiction over the appellant or over the case at bar.
4. v. RELIEF REQUESTED
In this writ of habeas cor.;.pus, appellant seeks to resolve the dispute· of a legal question of law in cause no. 28736-86 (Trial)), which trans1 pired during his pretrail and jury trial proceedings. Appellant request a written deposition from his trial attDrney Dennis Patman Jones to reJolv the disputed legal questions of law as the questions are a result of hJs professional judg~ent and reasonableness. I VI. UNSWORN D.EI:: LARATION
I, Kevin Menniefee, #1727174, am presently incarcerated in the ~~B~ Ellis Unit, in Walker County, Texas. I declare under penalty of perjury that the facts stated in this document are true and correct.
EXECUTED ON FEBRUARY 24,2015.
/S/1\~-~ Kevln Sharon~ $1727174 PRO-SE
VII. CERTIFICATION OF SERVICE
I,Ke~in Menniefee, #1727174, certify that I sent a copy of his "Appli- cation for a writ of habeas corpus purstlant to the Texas Code of Criminal Procedure, articl~s 11.01; 11.02; 1~.04; 11.05; 11 .. 08; 11.23; 11.42; and 11.43, through the U.S. Postal Serv&ce, to
Rhonda Hughey District Clerk County Courthouse 100 W. Mulberry Kaufman, Texas 75142 RES~~. SUBM~TTED .
5. Kevin Menniefee, O.B. Ellis Unit ~ C. C.. FILED 1697 FM 980 Huntsville, Texas 77340 FebrHn.ry ,.2.015
Kevin Sharone Menniefee TDCJ"-ID NO. 1727174 O.B. Ellis ur.it 1697 FM 980 Huntsville, '!.'exa.s 77340
'Ihe Honorable Presiding Judge The Distcict Court County Cou:cthouse 100 w. Mulbercy Kaufman, Texas 75142
J
RE; Ke.vin S. J.Vienniefee VS. 'I'he State of '.I'exo.s 'J:r. ial Cour.'t No ..,#28736-86 Count 1 REQuEST E'OR LiliAL REPRE.SENTAIIOl-J ,, Your Honor,
I, Kevin 1-lenniefee, the uud::csi9ned, her;:by ce:ctify under penalty cf perjury tf1at the followif19 facts at'e true and cor·rect to the best o:C my abl.lity.
l. I dill the appellant ln the above - named matt.er.' and desire the assistance of counsel in this proceedings.
2. App2llant repr,es.:nt to the cou:ct. that his request:. for.· de:position by written question(s) a.::·e es.sential to the incet·est oi justice in this cd..se, ar1d failure to consicec appclla;rt; s l..~equest will re.:;ult in a substantial mlscC:t:t:Tiage of justice~
3. Appellant represent to the court th.:J.t it i.s beneficial for the court to appoint an private investigator to obtain the facts in support of the deposition.
4. Appellant represent to the court that the is.suGs raised in his writ of habeas corpus will detemtine the trial coucts jurisdiction and the subn}ec:t-matte:c that the :1ppellant believes are meritorious.
5. J.l.ppellanl: repr:esent to the couct th~at w·ithcut the courts rendition of judgmentt appe·~ l~ant will suffe:c o. :.:..·emedy a-c law and- access· to the court's.
6. Appella:nt represent to the c:ou1·t that i1e is witilouc mo11ey or means witil which to employ an attorney, .::..nd S;) he is unable financially to retain co . msel [oc hiii1self.
'I'het-efcre, Appellant pr·ay that the cou:t:'t p:.:..-ovide counsel in his behalf. CAUSE NO.
KEVIN 3HARONE / .l\'iENNIBFEE IN THE DISTRICT COURT \\ vs. o6ti1 JUDICIAL DISTHIC'l'
DENNIS FA'.i'f·1AN .:.iON83 § KAUFMAl\l COUNTY, 'l'EXAS
KEVIN S. MENNIEFEE;S NOTICE OF DEPOSITION BY WRITTEN QUESTIONrs)
TO: Dennis Patman Jones Attorney at Law 201 W. tv:ulber:cy Kaufmant, Texas 75142 ·: 972 ) 962-8800 ~972) 962-3733 State B~r No. 10369880
1. Please take notice that, undc:.:- Texas Code of Criminal P:cocedur:e, A:t:ticlGs §§ 39.02; 39.03; 39.04; at'.d 39 .04, the fcrrnalities arG gov·e:r·ri by th·c 'I'exas F~ule c~ Cilzil Procedure 200.4; Kevin l",enniefee, ;.,ill take the d:aposi tion by wri tt:an que::rtim:. 's of Dennis f'.=i;::nan Jones, on ~--------- at -----~- at the county courthouse, 100 v;. 11ulber-ry, Kauima;,, 'l'cxas 751:42.
2. 'The dcpositicra -lrlill co:ntir1ue ·from day ·to da), u11til ccnpleted~
3. 'l'hc C.epo.si ~ion ~o.·ill be taken by the Distirct Judge, at thG cour:.ty courthouse:, i:1 Kaufman, Texas.
CERTIFICA~'E OF SERVICE
This is to certify.thai: on the file Jate a i:cue and <.:otTect copy of the aoove and fo:cagoing document was set·ved on the District cle:ck Rhonda hughey, county cou:cthouse, 100 w. 11ulbe:ct:y, Kauntan, 'rexas 75142.
;sF~~-~ Kev·in s. 1\ienn.:t:efee #..L727174 Appeacing P;t:o-Se o.s. Ellis Unit 169'7 FM 980 C.C. FiLED Huntsville, 'I'exas 7'7340 CAUSE NO.
KEVIN SHARONE MENNIEFEE § IN THE DISTRICT COURT
vs. § 86th JUDICIAL DISTRICT ../ ~ ' ..J •
DENNIS PATMAN JONES § KACFi''L\::'l COUNTY, TEXAS
DEOP DEPOS::i.'I'ION BY WRITTEN QUESTION(S)
1..· Please state you:c full name, occupc.ti0n, and official title.
ANSWEH:
2. A1·e you ti1e .::ustoaian of rEcords fo.c the titl~ cause no. Kevin !1enniefee vs Th2 State of Texas 28/36-86 1
ANSwER:
3. What v:ere the charges against Kevin Mennief~e ?
4. Did you represent Kevin Mermiefee in a jur-y trial on Ncvemb•?.::- l5,20J.D thu:c November 18 2010i in cause no. 28736-86 ?
....., Did :cep:cesent Kevin M·znniefee .u. both chc.rges ?
ANSWEf!~
6. ~\'Thy did Keuill'n r'iE.:rmiefee have separate trial 1 s onrl:t.hE!S·e two charges ?
7. At lvhat f.'Oint did the State of Texas amended Kevin Menniefee 1 s inai::::trnent to add another: ..::r:iminal charge ? Plec.se give the C:ute.
l. ANSWER~
8. Did you file a !LiOtion to "ELEC~" on your cli·
9. Did you file a motion to quash the lnC:iccment J?u:csuant to al."'"t. 28.05 of the 'l'ex. Coae of Cdminal ?rocedure ? ANSWEH~
10. Did your client l\1enniefee evei· tell you 'Mr.Jone::.: that the co-defendant Jdm Nitchc;ll, "Told him to stop the car, ar,d fm: him to go jack that lady 1 (the victim) 1 and he told IvJitd;~ll 'hell' no" ? H.
ANSW.t;R;
ll. l\'ir. Jcnes, in your professional opinion, were both criminal charges from the .:>ctme episode.· ") Dces the misjoinder occur and constitute· fundamental (:!rror· ?
ANSvmR:
12. Mr. Jon.:~s, in you!:" professional opinion should a motion to dismiss::·: the indictment been filed ?
13. Was there a motion in limine filed in your client Menniefee;s behalf ?
AN"SWER~
14.• JVJr. Jones, m.o you object to your client fvlenniefee' s amended indictment ? If so, give a date '?
ANSWER: 15. tVJr. Jones, in your professional opinion, were the charges separate and distinct offenss:s ? 1
ANSWEi:Z:
16. Mr. Jones, in your professionai ·opinion, ·was your client fvlenniefee in formed of the nature and cause cf the accusation agains·i: him ?
17. i"lr. Jones, did the comp.La~nt a.L.Lege that your client r1enniefee engaged in an affinnative act that: promoted the canmisaion of either- of the two offense's that he has been convicted of ':
ANSWER~
18. Mr. Jones, did the grana Jury assest whether there was probable cause to believe that your client i•ienniefee committed both these charges ?
19. ivl:c. Jones, did you make any objections to the complaint or the indictment before the date the trial coirunenced ?
20. Mr. J·ones, in your professional opinion, is your .;lient fvJenniefee guilty of the charges that he mas been charged with ?
3 CAUSE NO.
IN RE KEVIN SHARONE-MENNIEFEE, § IN THE DISTRICT COURT • ·} t Petitioner. ·· § § OF KAUFMAN COUNTY, TEXAS § § 86th JUDICIAL DISTRICT
NOTICE TO DEPONENT OF HEARING ON PETITIONER KEVIN MENNIEFEE'S PETITION TO INVESTIGATE CLAIM
TO: Dennis Patman Jones, 201 w. l\1ulberry, Kaufman, Texas 75142.
Petitioner, Kevin Menniefee, has filed the attached petition asking the court for per- mission to take your deposition on written questions to investigate a potential claim by petitioner, and the court will consider the motion on this AT this time ---------------------------
RESPECTFULLY SUBMITTED
CERTIFICATION OF SERVICE
I, Kevin Menniefee, #1727174, certiff that I sent a copy of his Verified petition to take deposition to investigate potential claim, through U.S. Postal service, to the depose Dennis Patman Jones, .201 W. Mulberry, Kaurnan, Texas 75142. Phone no. (962) 962-8800 on February ;2_\..( , 2015.
/S/ ~K~e~v~i~n~S~h-a_r_o_n_e~M~e~n-n~i-e~~~~~~~
O.B. Ellis 1697 FM 980 C. C. FILED Huntsville, TeXflS 77340 Appearing Pro-~~- CAUSE NO.
KEVIN~'SHARONE MENNIEFEE 1 § IN THE DISTRICT COURT
DENNIS PATMAN JONES, § KAUFMAN COUNTY, TEXAS
PETITIONER KEVIN MENNIEFEE'S VERIFIED PETITION TO TAKE DEPOSITION TO INVESTIGATE POTENTIAL CLAIM
Petitioner, Kevin Menniefee, asks the court for permission to take a deposition on writen questions of Dennis Parman Jones, to investigate a potential claim by petitioner as allowed by Texas Rule of Civil Procedure 202.
1. Petitioner, Kevin Menniefee, is a State prisoner confined to the Texas Department of Criminal Justice, at the O.B. Ellis Unit, in Walker County, Texas.
FACTS
2. Dennis Patman Jones, is the trial attorney that repersented the petitioner in his jury trial, in the 86th Judicial District Court, Kaufman County, Texas.
3. Petitioner, seeks to depose Dennis Jones to investigate a potential claim by petitioner arising out of Mr.Jones representation during petitioner's pre-trial proceedings and jury trial from Novemeber 1,2010 through November 18,2010.
4. This petition is filed in the 86th Judicial District Court, Kaufman County, Texas, where Dennis Jones practice law as an attorney. s-~e Tex.R.Civ.P. 202.2(b)(2).
REQUEST TO DEPOSE
5. Petitioner, asks the court to issue an order authroizing him to depose Dennis Jones, who resides at 201 w. Mulberry, Kaufman, Texas 75142, and whose telephone number is (972) 962-8800; 1972) 962-3733. State Bar no. 10869880.
l. 6. Petitioner expects to elicit the following testimony from Dennis Jones, what was his trial strategy when he did not allow the accomplice witness John Michell to testify in the petitioner's behalf, and his involvement in robbing the victim? Why, din't Mr.jones interview John Mitchell before trial to obtain an affidavit ? And "WHY" didn't Mr.Jones, interview any of the State's witnesses and obtaim an affidavit from them ~s· to the wit- nesses facts as to what they saw ?
7. Petitioner needs to depose Dennis Jones because he d~d not investigate the facts and petitioner's innocence that was clearly presented at his jury trail.
HEARING
8. After service of the petition and notice, Rule 202.3(a) requires the court to hold a hearing on the petition.
9. At the hearing, the petitioner will show that the likely benefits of allowing the dep -osition to investigate a potential claim outweighs the burden or expense of the procedur see Texas Rule of Civil Procedure 202.4(a).
PRAYER
10. For these reasons, petitioner asks the court to set this petition for hearing and, after the hearing, order··the deposition of Oennis Patman Jones.
pro-se
2. VERIFICATION
STATE OF TEXAS §
COUNTY OF WAL~ER §
Before me, the undersigned notary, on this day, personally appeared Kevin Menniefee, a person whose identity is known to me. After I administered an oath to him, upon his oath, he said he read the "Verified petition to take deposition to investigate potential claim" AND that the facts stated in it are within his personal knowledge and are true and correct.
,Kevin Sharone Me efee 31727174 Appearing Pro-Se.
UNSWORN DECLARATION
I, Kevin Menniefee, 1727174, am presently incarcerated in the O.B. Ellis Unit, in Walker County, Texas. I declare under penalty of perjury that the facts stinted in this document are true and correct.
EXECUTED ON February 24,2015. /S/ ~ ~.(----- . Kevin Menniefee #1~4 pro-se
I, Kevin Menniefee, #1727174, certify that I sent a copy of his Verified petition to take deposition to investigate potential claim, through U.S. Postal service, to the depose Dennis Patman Jones, 201 W. Mulberry, Kaufman, Texas 75142. Ph~ne no.(962) 962-8800 on February !t:{ , 2015.
/S/Kef.fs-:::one Mennf5:it;;;; 0. B. Ellis Unit 1697 FM 980 C.C. FILE Huntsville, Texas 77340 Appearing Pro-S~--
3.