' ¥Z ;>/®'OS
l¢\) `F\'\Q Coum op
RECE§`J§Q m
CR.\ md ,`,Q\ /\Pf» @@\5 couRroFcR)e¢rrNA;APPE;ALS.
ami-12 2015
AuST;N § .“TQ)<&S _ Ab@gAmtasclerk
I:.z_
m>=._mzmm mmn_
. . _ ..s.$.~ §e.§
.E §z.a_§o §§ s.wwms:o_.,§£_.mv_ §§ 538 nea§¥~u!. sss
§§ §_,__s_§ 533 sain §%a__§._. ..§_.._=m.=_=. .Se< .:S.»T?_=o
§
.. ave§"§aa .£no§"§u
¢SS=S§B¢!-eo C.os§d.'..¢s&i§a£&§§£o
_SS:E 58 E¢E=u_.E< _.SS=E i~o..t»=< 35 §Em E._.lo .
_'§a:$"§a.»!£o §§ 88£0
=§.=Ea.¢n§. :o~a=$ §§ 5a sea ".€So naming
rests 588..£¢ P._ .omr §e§.§.l B_?.¢ao@n.v_ wis-8c ua!£o
_ . .._.§.:tux .uwmz:u
§
... . ono_wquzoEduxm§>> :om_. n.lzo_.p<._m.
.=s§m.»s§_.. .._&< ">m owt...ln=m
dmz¢__o._ :o=¥ o._. S§o< m_t mBuSo
_ B»¢z_zm¢nn nn .>¢w» 3§¢<2
. .- §n§n_§!<._ J$E=zo" .
_ . wx:o§ HFQ,.E¢%¢.¢_E_ _
Eon_mm m>cz__
_ . mo_>¢mun.mo¢ooz_n_._.zw:mo¢oezm _s<._ Jhm.ml§
»a.eo%._a§. 2a §a»
>_1.2¢3§
_.._Sso .... Sziu
§ gee §.o
§ gee u.S.o
§ .wu 33 a §
§§
§§
§ _US._ _nm..$
Eu¢.d_a. §¢~.Bu.$.$. _
§ § §
_E§..srs:..a§sz__i¢
51
. §§31¢!§]¥§
. § §a§..»s§!§ . E.om.ma.m.moe
B¢£!s¢i......h§£;.iaw§a ....i.....n..........§ §a....:.....a......_n§...o . . w_s_§§. vi
oil § alfriv»:ar.o§¢§:¢l'§bpi§ld¢l§l n . , . gm aim dummud:§.w N.:
§i.»?§& 1¢¥2¢8¢¢1:¢§¢1:!..§ §§¢o~l at zonzu<__.n>wm¢
class §§s.qsl§§§§§§r§isc§£ . .
sg§ni;§ia!e!!l!l€¢qld.§n”wo§ . i_.%¢$..§.o .w §§
§nvl:mw%§!d§llia§a§]-.§¢$ . _ n _ . ` Saw ,"B_
. . . . ..Iidu.¢»n§§ . os».£=££c§§£iz;£.§g€§_u 9=>£§§!=3<
. _ |._,ls.¢ E.i...; E¢:.; §n§r¢¥§< , as_=n.~
. sm.¢u.v nnnnnnn ..§..§.n .E<=EE§<. . , .
. .\ _ . . . § B_v.uvso vA.§m.HE we §.._ naa.~€o€ § unqu _¢P_.
, moo~\n: § . .. h.°:PF.<-¢ .
l . _. . , lea
was-uzi hu~¢d simons §§ 53 voa §Edh£oo£
.E§S§§B._$§Sz£§¢
§§ zo_._.<$e:..< gin
§E§§SSE_E=SBF: . gmmzacudc§om .¢mn¢o_
HE.»..EB..EE n 1|1|||. l usda __.:E . . §~.H_>.._.z:ou=._§m v ".EE.EQ .E
_ w §SE.¢ENE. § . am
danEEE . 3 . . ,§E,= m §.:ow_.mmE
m_>¢<_._zmo~
, . sam §
. .. 1 _ /. m A_MO-%@_.§
`iu$=m .._. mg ozo:
_ . v §§ us .s nw¢m..Em cz< nmzo_m
38 mg 3 2253 m ma E.Omzz<> Z.B¢.Q .,BSEB 8 .R.E._Q.Eu 323
g .E&. % asw.§.é 2a s _§§a w_..a=§_ m .§ we 55 §
“o_.a_ua 05 ...m= v§._$d=oo 8 vargas 2 32£3 _va §u_»v=¢ §..ou o£,_x.<
.E.¢ S“_ _.a ~ 5~._: bd_.s£
no mccann S._ _u» §§ un.__..=oa .€.B.E.u 33 Bo=v._u._u_.o>on¢ vi E mRB.>»
. s 2 ESAS..§_.£ .s.__.`.=$!m£éio.~£o&¢ 3 .3=:3.§=..3_3=_5...&.0@22<>
235 555 use .:._2 .»aa_: 3 § .SN vs § .z>»ozu b wm
mwmz._.§> ¢Oh
qumznou uz_ez~.o.a<¢u§o
m
.Eu§=. =E ».:h z_ m §.F .B.E<.AS
§ OF BY- 5 7 ' '
_ . § b - §§Pt")w',°
KEITH sTUART CUMBEE § sMITH CoUNTY, TEXAS
, STATE’S ANSWER TO SUCCESSIV.E‘
APPLICATION FOR WRIT OF HABEAS CORPUS
TO THE HONORABLE JUDGE OF THE 7‘h DISTRICT COURT:
Pursuant to Section 3 and Section 4, Article ll.07 of the Texas Code of
lCriminal .Procedure, the State, acting through its undersigned Assistant Criminal
District Attorney, urges the Court to tind that there is no necessity for a hearing on
any of Applicant’s allegations and to recommend relief be denied. This is a
successive Writ application under Article l 1.07.
I. FlRST ART. 11.07 WRIT APPLlCA'l`ION
On February l6, 2012, Applicant filed With the Court ofCriminal Appeals his
first application for habeas relief under Art. l l .()7 of the Code of Crirninal Procedure.
The Court subsequently denied relief on this application on March 21, 2009. (WR- d
77,210-01 /007-1820-03-A).
II. SECOND ART. 11.07 WRlT APPLlCATIoN
On October l l, 2013, Applicant filed With the Court of Criminal.Appeals his
second application for habeas relief under Art. 1 1.07 of the Code of Criminal
Procedure.. The Court dismissed this application as a subsequent writ on January 8,
2014. (WR-77,210-02 /007-1820-03-B).
III. THE CURRENT WRIT APPLICATION
On December 9, 2014, Applicant filedthis, his third Art. ll.07 application for
a Writ of Habeas Corpus under the above-numbered cause.
IV. STAT`E'MENT OF FACTS
The State challenges all factual allegations made by Applicant in his Writ
application. This is Applicant’s third and subsequent Writ application and it appears
to raisel:c-omplaints that have been available since the time of his trial and before his
original Writ applicatio§ In addition, Applicant has failed to allege Sufficient facts for
this Court to determine that he has satisfied the dictates of Article l l.07'(4) of the
Texas Code ofCriminal Procedure.
V. APPLICANT’S BURDEN OF PROOF
This is a subsequent Writ application Which falls under the prohibition found
in Article l l.07. Texas Code of Criminal Procedure Art. l l.O7(4)'states that:
If a subsequent application fora Writ of habeas corpus is filed
after filing an initial application, a Court may not consider the merits of
or grant relief based on the subsequent application unless the application
_ _ contains sufficient specific facts establishing that:
(l) the current claims and issues have not been and could not
have been presented previously in an original application or in a
previously considered application filed under this article because
the factual or legal basis for the claim Was unavailable on the date
the Applicant filed the previous application; or,
(2)'by a preponderance of the evidence, but for a violation of the
United States Constitution no rational juror could have found the
Applicant guilty beyond a reasonable doubt.
TEX. CoDE CRlM. PRo. ANN. Art. 11.07 (4) (Vernon 2014).
Thus, under the plain language of the statute, once Applicant filed`his original
application under this cause number, all subsequent applications regarding the same ‘
conviction must meet one of the two conditions set forth in Art. 1-1.07(4). The Court
of Criminal Appeals has previously determined that this subsection of Art. l l.07 Was
intended “to limit a convicted person to ‘one bite at the apple.”’ Ex parte Whitesicle,
12 S.W.3d 819, 820 (TeX.Crim.App. 2000); Ex parte Torres, 943 S.W.2d 469, 474
(Tex.Crim.App. 1997) (under Art. ll.07 (4), “subsequent applications” includes all
applications for Writs of habeas corpus regarding the same conviction).
Applicant here has not made the requisite preliminary showings for
consideration of a subsequent writ. His claim ofineffective assistance of trial counsel
rests entirely upon allegations existing since the time of trial. Applicant has further
failed to show any reason Why he could not have raised the current grounds for relief
in either of his previous Writ applications
Lz.)
VI. CoNCLUsIoN
This Court’s authority is strictly limited by Article ll.07 to finding that this
current application represents a subsequent application without any exception to the
rule regarding the same. The Court “ may not consider the merits of or grant relief’
in a subsequent writ application without the requisite showings. TEX. CODE CRIM.
PRO. Ann. Art. ll.07 (4) (Vernon '201_4). There is nothing in this subsequent writ
application that comes remotely close to establishing this'burden under the law.
Moreover, Applicant has not established that he is entitled to relief. This application
has no merit and should be denied.
ViI. PRAYER
WHEREFORE, PREMISES CONSIDERED, the State prays that the Court find
that there are no controverted, previously unresolved facts material to the legality of
Applicant’s confinement, that there is no necessity for a fact-finding hearing as there
is ample evidence in the record for the Court to rule on the relief sought, that the
Court enter Findings of.Fact and Conclusions of Law, and recommend that, since
Applicant has failed to meet his burden in filing a subsequent writ application, the
Court cannot reach the merits of his claims, and send him hence without delay.
Respectfully submitted,
D. l\/IATT Bl`NGHAl\/I
Criminal District Attorney
Smith County, Texas
Miéhael J. West
Asst. Criminal District Attorney
SBOT# 21203300
100 N. Broadway, 4th Fl.
Tyler, Texas 75 702
(903) 590-1720
(903) 590-1719 (fax)
CERTIFICATE oF SERvICE
l hereby certify that a copy of the State’s Answer in Op_position to Applicant’s
application for writ of habeas corpus was served United States mail on December 30,
2014, on Applicant, Keith Stuart Cumbee, TDCJ-ID # 1699482, Texas Department
of Criminal Justice,'Stevenson 'Unit, 1525 Fl\/l 766, Cuero, Texas 77954.
WQ
Micélribel J. West
EX PARTE
Cause No. 007-1820-03!€
lN THE 7"‘ DISTRICT CoURT
§
§
§ GF ,
§ ' y .
KEITH sTUART CUMBEE § sMITH CoUNTY, TEXAs
CERTIFICATE: wRIT oF HABEAS CORPUS
FINDINGs oF FACT AND CoNCLUsioNs oF LAw
On December 9, 2014, the defendant in Cause Number 007-1820- 03 filed his
third Application for a Writ ofHabeas Corpus. The State filed a Response. The Court
hereby enters its findings and conclusions.
The Court takes judicial notice of all prior proceedings, reporter’s records, the
documents and papers contained in the files, and the docket sheets in Cause Number
007-1820-03 and the first, second and third Applications for Writ of Habeas Corpus
in Cause Numbers`007-1820-03-A, 007-1820-03-B and 007-1820~03-C, respectively.
The Court enters the following F indings of Fact and Conclusions of Law:
1._
On February 16, 2012, the defendant filed with the Court of Criminal Appeals
his first application for habeas relief under-Art. l l.07 of the Code of Criminal
Procedure. The Court subsequently denied relief on this application on l\/larch
21, 2009. (WR-77,210-01 /007-1820-03-A).
On October ll, 2013, the defendant filed with the Court of Criminal Appeals
his second application for habeas relief under Art. ll.07 of the Code of
Criminal Procedure. The Court dismissed this application as a subsequent writ
on January 8, 2014. (WR-77,210-02 /007-1820-03-B).
On December 9, 2014, the defendant filed his third Art. 11.07 application for
a Writ of Habeas Corpus under the above-numbered cause.
The defen`dant’s writ application is a subsequent writ application under Article l
ll.07(4) of the Code of Criminal Procedure. As such, he must make'the
requisite showings under that section that:
Page l
(l) the current claims and issues have not been and could not have been
presented previously in an original application or in a previously
considered application filed under this article because the factual or
legal basis for the claim was unavailable'on the date the Applicant filed
the previous application; or, ~
(2) by a preponderance of the evidence, but for a violation of the United
States Constitution no rational juror could have found the Applicant
guilty beyond a reasonable doubt.
5. The defendant has failed to meet his burden with this current application.
Specifically where he has not show good cause why he could not raise his
current grounds in a previous writ application
6. The legal procedures in these cases were proper and as provided by the
Constitution and Texas law.
The Court concludes that the defendant may be in abuse of the writ process and
that it cannot consider the merits of, or grant relief based upon, this subsequent writ
application because the defendant has not met his burden under the law.
Alternatively, the defendant has not raised a meritable claim and this‘application
should in all things be DENlED.
Page 2
ORD_ER
The Court orders the Clerk of the Court to immediately transfer to the Court
of Criminal Appeals:
(l) a copy of the Application for Writ of Habeas Corpus;
(2) any answers and waivers executed by the State;
(3) ja copy of the files and docket sheets in the original cause of action and
the files and docket sheets in the first Application for Writ of Habeas
Corpus; and
(4) This certificate
SIGNED AND CERTIFIED on this day of , 201 .
HONORABLE KERRY RUSSELL
Judge, 7th District Court
SMITH COUNTY, TEXAS
Page 3