Cumbee, Keith Stuart

' ¥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