Menniefee, Kevin

CourtCourt of Appeals of Texas
DecidedJune 13, 2016
DocketWR-80,528-04
StatusPublished

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Menniefee, Kevin, (Tex. Ct. App. 2016).

Opinion

,;

Kevin s. Menniefee 1727174 - Ellis Unit 1697 FM 980 .RECEIVED IN Huntsville, Texas 77343 COURT OF CRIMINAL APPEALf

June :7 , 2016 JUN 13 2016 Mr. Abel Acosta, Appeal Clerk COURT OF CRIMINAL APPEALS 12308 Capitol Station Supreme Court Building A~stin, Texas 787~1

Re: Cause No. 287~36C-81> Writ of Mandmaus

near Mr. Acosta, Appeal Clerk:

Please find enclosed Relator's Writ of Mandmaus to be filed among the papers in the above number and cause.

By copy of this letter, I am forwarding a copy of the same to the district Clerk of Kaufman County, Texas.

Thank you for your time and consideration in this matter.

Sincerely, _ • ~ ~~ KEVIN S. MENNIEFEE - ReJ.a tor Pro SE This document contains some files cc: Mr~ Rhonda Hughey pagr:s that are of poor quality · District Clerk at the time of imaging. County Courthouse 100 w. Mulberry St. Kaufman, Texas 751~2 ..

No. IN THE

TEXAS COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

KEVIN SHARONE MENNIEFEE § Relator, § § Vs. § No.: 2 87136C-86 § The ~th Judicial District § Court of Kaufman County, Texas§ Respondent. § §

APPLICATION FOR WRIT OF MANDAMUS, PURSUANT TO RULE 52.8(c), TEX. RULE OF APPELLATE PROCEDURE, DIRECTING THE 86th JUDICIAL DISTRICT COURT TcO PROCESS RELATOR'S APPLICATION FOR WRIT OF HABEAS CORPUS PURSUANT TO V.A.C;.C.P. ART. 11.07

TO THE HONORABLE JUDGES OF SAID APPEAL COURT:

COMES NOW, KEVIN SHARONE MENitllriEFEE, TDC No. # 1727174,

Pro Se Relator, and files this,: Application for WRit of

Mandamus requesting this court to direct the 86rd Judicial

District Court of Kaufman County, Texas to process his State

aplication for writ of Habeas Corpus pursuant to V.A.C.C.P.

art. 11.07 in cause number 28736C-86, presently pending

before the Respondent •. In support thereof, Relator will

show the following:

I.

JURISIDCTION

This court has jurisdiction to issue a "Writ of Man-

amus" in this case pursuant to article 5 § V of the Texas

Constitution. Landford v. Fourteenth Court of Appeals, 847

s.w. 581 (Tex. Cir. 11993). MOreover, purpose of ,(1978) Amend-

ment to provision of Texas Constitution governing power

of Court of Criminal Appeals to issue extraordinary writs; -1- was to confer upon the Court of Criminal Appeals additional

power to grant extraordinary writs in cases regarding "Criminal

matters". Vernon's Ann. Canst., Art~ 5 § v., State Ex Rel.

Vance v. Routt, 5:71 s.w. 2d. 90,':3' (Tex. Crim. App. 1l978). II. STATEMENT OF THE CASE

Upon receipt of an application for writ of Habeas Corpus

challenging a final felony conviction, the attorney representing

the State has (15) days to respond. See, Tex. Code Crim.

Proc., art. i1~07,§(b). After the expiration of the time

allowed for the State to respond, the trial court is allowed

(20) days to determine whether the application contain allegations

of controverted, previously unresolved facts material to

the 'legality of the applicant's confinement. See, art. 11.1. 07, §

3(c)~ If the trial court determine that the application

for writ of Habeas Corpus presents such issues it shall

enter an order within 20 days of the expiration of the time

allowed for the State to reply designating the issues of

fact to resolved~ n. Thus, the trial court has 35 days to

enter an order designating issue after the filing date of

an ll.G7 application for a writ of Habeas Corpus. Article

mt~07 does not authorize the trial court to extend the time

limitation imposed by the statute, other than by a •timely•

entry of an order designating issues. See, McCree v. Hampton,

824 s-..w. 2tl 578, 579 (Tex. Crim~ App. ll992)(emphasis added).

-2- Without a timely entry of an order designating the issue,

article 11.07 imposed a duty upon the clerk of the trial

court to "immediately" transmit to the Court of Criminal

Appeals the record from the application for a writ of Habeas

Corpus, deeming the trial court's inaction a finding that

no issue of fact require further resolution. See, article

11 • 07, § 3 ( c ) •

In this case, Relator filed his State Application

for writ of Habeas Corpus by certified mail, certified mail

number 7013-1710-0001-0996-9451 January 28, 2016. The Dis-

trict CLerk Office stample marked the date of February 2,

2016;. See Cover letter marked as exhibit A attached: On

March 04, 2016, Mr. Rhonda Hughey, the District Clerk

of Kaufman County, Texas wrote Applicant a letter informing

Applican~ that the writ ~f Habeas Corpus was forwarded to

the Court of Criminal Appeal. See, exhibit B attached: From

March 04, 2016 Applicant was thinking that his State

Application was filed in the Texas Court of Criminal Appeal

which Mr. Hughey has fabricated a letter statingthat

his writ was send to the Court of Criminal Appeals. See,

exhibit B; The district clerk, Mr. Hughey, wilful, negligent,

incompetence, f~ilure of duty, unprofessional conduct,

fraud and misrepresentation of office duty. See, Govern..:

ment Code 51.303(e)(2).

-3- The Distirct Clerk's forwarding of State Writ to the Court of Criminal Appeal was mandatory, ministerial duty, and

applicant had no other adequate remedy, such that mandamus

would issue to compel clerk to perform this duty. V.T.C.A~

Government Code § 22.221(a); such is necessary to enforce

the Court of Criminal Appeal. In Re Coronoado, 980 s.w. 2d 691, 692 (Tex. App. ~ San Antonio 1998, Orig Proceeding);

Summit Saving Ass'n v. Garcia, 727 s.w. 2d. 106, 107 Tex.

App. - San Antonio 198~, Orig Proceeding. A Mandamus is proper issues in this case because the record establishes

(1) a clear abuse of discretion and a violation of a duty imposed by law, and (2) the absence of a clear and adequate

remedy at law. Cantu v. Longoria, 878 S.W. 2d. 131 (Tex.

1994); Walker v. Packer, 827 s.w. 2d 833, 839-40 (Tex. 1992).

On May 3, 2016 Applicant wrote Mr. Abel Acosta, the Appeal

clerk for the Court of criminal Appeals inquiring about

the notification "White Card" informing Applicant that the Appeal Court received his State Application. See, exhibit

C attached~ On May 11, 2016, Applicant received a letter

from Mr. Abel Acosta, Appeal CLerk that after a thorough

search of the Court's records, the court find that Applicant do not have a writ of Habeas Corpus filed in the Court of

Criminal Appeals at this time. See, exhibit D attached.

Mr. Hughey, the district clerk of Kaufman County committed

fraud and misrepresentation of his Office Duty~

-4- The distirct clerk has no authority to fabricate a le~~er

to applicant for the sole purpose of misleading him to

•think" his State Application writ was forwarded to the

Court of Criminal Appeals~ See, exhibit B; the district

clerk's action is indeed &misrepresentation of Office duty

and fraud.

III.

BRIEF IN SUPPORT

A act is "ministerial" for purpose of request for writ

Mandamus, if it constitute duty clearly fixed and required

by law, without exercise of discretion or judgment. See,

Engle v. Locker, 820 S.W~ 2d. 47 (1991); Curry v. Gray,

728 s.w. 2d. 128 (Tex. Crim. App. 1997). While it is the

general rule that a mandamus will not be issue to control

the action of an inferrior Court or Public Officer in a

matter involving discretion. However, the writ may be issue

"in a proper case" to correct a clear abuse of discretion.

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Related

Crane v. Tunks
328 S.W.2d 434 (Texas Supreme Court, 1959)
Cantu v. Longoria
878 S.W.2d 131 (Texas Supreme Court, 1994)

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