,;
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.
Crane v. Turnks, 160 Tex. 182, 328 s.w. 2d. 434, 440 (1959).
The Suprem Co:u:r::t has recognized that adaption of this excep.tion
is particularly important "where the remedy by way of appeal
is inadequate."West v. Solitos, 563 s.w. 2d. 240, 244 (Tex.
!19718). In re-iterating this standard, in Johnson v. Fourth
Court of Appeals, 700 s.w. 2d. 916, 917 (Tex~ 1985). The
Supreme Court stated: " •••• Mandmaus issues only to correct
a clear abus~ of discretion or the violation of a duty imposed
by law when there is no other adequate remedy by law. Id.
at 917.
...:5-
IV.
ABUSE OF DISCRETION
The Relator further contends the Respondent's failure
to apply the law with respect to article 11.07 §3(c), ex~
plicitly enumerate that the Respondent process Relator's
Habeas Corpus action within specified time limitation
and forward the application top This Appeal Court. In view
thereof, the Respondent has but one choice, and it is the
duty prescribe by article 11.07, the failure to perform
this duty constitutes a clear and prejudicial abuse of the
Respondent duty fixed by 1aw. Consequently, Relator's
right of access to the courts; and ~o be heard on his Habeas
Corpus action; has quite stringently been impaired by the
action of the Respondent~
Therefore, writ of Mandmaus will be issue when under
the circumstances, law and facts permit trial court to make
but one decision and it refuses to make that decision. See,
Proffer v. Yates, 734 s.w. 2d~ 671,673 (Tex.Cir~ App. 1992).
In Walker v. Packey, 827 s.w. 2d. 833 (Tex~ Crim. App.
1992). The Supreme Court statedi " •• ~.trial court clearly
abuses its discretion, for purpose of Mandamus with the
respect to resolution of factual issues or matters committed
to trial court's discretion, only if trial court could rea-
sonably have. reach only one decision." Id. Also see,
-6-
State v. Walker, 679 S.W~ 2d. 484 (Tex. Cir. 1984)("Mandamus
will lie to correct an action of trial judge who commits
abuse of discretion, or ~iolation of clear duty under law
and when there is no other adequate remedy at law"). Ayres
v. Canoles, 790 s.w. 2d. 54 (Tex. Crim. App. [990)("Writ
of Mandmaus will be issue to correct trial court actions
when there has been clear ·abuse of discretion particularly
where remedy by law of appeal is in adequate.")
v.
APPEAL IS NOT AN ADEQUATE REMEDY
The Relator contends that the issue of the trial court
to apply the dictates of V.A.C.C~P., Article 11.07, is not
an appealable issue.
VI.
PRAYER OF RELATOR
Wherefore, premises considered the Relator, prays that
this court issue an order directing the Respondent to make
proposed recommendation, finding of facts and conclusion
of law, and forward the same to this court within thirty
(30) days.
Respectfully Submitted,
~ rYI~ #t7J-.7171
Kevin Menniefee
TDC No. 1727174
Ellis Unit
1697 FM 980
Huntsville, Texa~ 77343
-7-
CERTIFICATE OF SERVICE
I, \{e\i\o Mtoo\e..-.f.(_...L , TDC No.
certifiy that a true and correct copy of the foregoing
Application for Writ of Mandamus has been served by placing
the same in the United STates mail on this ] day of
Jvne
--~~~~~----------------
,2016, address to the District
Clerk Office at:
Mr.Rhonda Hughey
District Clerk
County Courthouse
100 w. Mulberry St".
Kaufman, Texas 7514 2
Kevin S. Menniefee
Pro SE Applicant
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Rhonda Hughey
District Clerk
County Courthouse
100 W. Mulberry St.
Febrqary 2, 2016 Kaufman, Texas 75142
Kaufman County 972-932-0279
Kevin Menniefee, TDCJ # 1727174
O.B. Ellis Unit
1697 FM 980
Huntsvjlle, Texas 77343
RE: 28736C-86
EX PARTE: Kevin Menniefee
Dear Mr. Menniefee:
This is to acknowledge receipt of the above captioned post conviction petition for writ of
habeas corpus. Article 11.07 of the Texas Code of Criminal Procedure afford the State 15
days in which it may answer. After those 15 days, the Court has 20 days in which it may
order a hearing. If no order has been entered 35 days from the above date, the petition
will ~e forwarded to the CoUrt of Criminal Appeals for their consideration.
1). Defendant receive~: Countl; Twenty Five (25) Years in the Texas
Department of Criminal Justice Institutional Division: Fine:$0; Court
Cost: $33 I .00 ; Restitution:$0 Time Credited: From 05/09/2010 to Present
Count 2; Fourteen Months in the Texas Department of Criminal Justice
Institutional Division, Fine: $0; Court Cost: $286.00; Restitution: $0
2) Judgment: Affirmed, April30, 2012, Memorandum Opinion: Affirmed,
April30, 2012; Mandate: Mfirmeq; November 1, 2012; Memorandum
qpi11ion:Affumed, hwe 21,2013, J~dgment: Jurte 21, 2013; (Dismissed)
Mari.date: SeptemberJ, 2013 (Dismissed) Co'urtof Appeals Fifth District of.
Texas at Dallas. · ·
3). Application for Writ of Habeas Corpus Filed on 07/10/2013 (28736A-86) Writ
Dismissed
4). Application for Writ of Habeas Corpus Filed on 11/7/2013) 28736B-86) Writ
Denied
5). Application for Writ ofHabeas Corpus Filed on 02/02/2016) 28736C-86)
,.
All further correspondence should indicate the above cause number 28736C-:S6
~~·tt,tk~
Rhonda Hughey
District Clerk
-n·- ~n,
RH/dw
Enclosure
Cc: Erliegh Norville Wiley, Criminal District Attorney
Kevin Sharone Menniefee
. '\
·, •·
,f3
' (1
Rhonda Hughey
District Clerk
./
County Courthouse
'~
100 W. Mulberry St.
Kaufman, Texas 75142
Kaufman County March 4, 2016 972-932-0279
Court of Criminal Appeals
12308 Capitol Station
Supreme Court Building
Austin, Texas 78711
'
RE: Cause No. 28736C-86
Ex Parte: Kevin Sharone Menniefee
Dear Clerk,
Enclosed, please find the Clerk's Record for Writ of Habeas Corpus to be filed in your
Court, regarding the captioned cause number.
If you have any questions, please contact our office.
Sincerely,
~=y~
District Clerk
Kaufman County, Texas
RH/dw
Cc: Erleigh Norville Wiley, . District Attorney
Kevin Sharone Menniefee, Applicant
Enclosure
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COURT OF CRIMINAL APPEALS
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D
SHARON KELLER ABEL ACOSTA
PRESIDING JUDGE COURT OF- CRIMINAL CLERK
(512)46J.J551
LAWRENCE E. MEYERS APPEALS
CHERYL JOHNSON SIAN SCHILHAB
MIKE KEASLER
P.O. BOX 12308, CAPITOL STATION GENERAL COLINSEL
AUSTIN, TEXAS 78711 (512) 46J.J600
BARBARA P. HERVEY
ELSA ALCALA
BERT RICHARDSON
KEVIN P. YEARY
DAVID NEWELL
JUDGES
May 11,2016
Kevin Menniefee #1727174
Ellis Unit
1697 FM 980
Huntsville, TX 77343
RE: Your enclosed correspondence
Dear Mr. Menniefee:
After a thorough search of our records, we find that you do not have a Writ of Habeas Corpus
filed in the Court of Criminal Appeals at this time. If you have any further questions or
concerns, please direct them to the District Clerk in the convicting county where you originally
filed the application.
I am herewith returning your documents.
AA!llg
Enclosure
SUPREME COURT BUILDING, 20 I WEST 14TH STREET, ROOM I 06, AUSTIN, TEXAS 7870 I
WEBSITE WWW.CCA.COURTS.STATE.TX.US