Order entered May 6, 2021
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-21-00203-CR
EX PARTE KURNICUS HAYES
On Appeal from the 283rd Judicial District Court
Dallas County, Texas
Trial Court Cause No. WX20-93394-T
ORDER
Before the Court is appellant’s April 30, 2021 first motion to extend the time
to file appellant’s brief. As grounds for extension, appellant states he has not yet
received the reporter’s record and the clerk’s record reflects the wrong underlying
trial court case number.
The trial court’s order denying relief indicates the trial court did not conduct
a hearing on appellant’s writ application. Therefore, there is no reporter’s record
in this case.
Turning to appellant’s complaint about the clerk’s record, we note that
appellant’s writ application indicates it was filed to address an alleged double
jeopardy issue which appellant contends invalidates his conviction in trial court
cause no. F13-30966-T. Appellant’s writ application references cause no. F13-
30966-T as the applicable cause number, and it further indicates he appealed that
conviction to this Court as appellate cause number 05-16-00740-CR. A review of
our records shows appellate cause number 05-16-00740-CR involves an appeal
from appellant’s conviction in trial court cause number F13-30966-T. See Hayes
v. State, No. 05-16-00740-CR, 2017 WL 5663612 (Tex. App.—Dallas Nov. 27,
2017, pet. ref’d) (not designated for publication). The clerk’s record in cause no.
05-16-00740-CR contains a written order for a mistrial in appellant’s first trial
arising from a hung jury that reflects the circumstances appellant alleges in his writ
application. Thus, it appears appellant filed his writ application to complain about
an alleged double jeopardy issue in trial court cause no. F13-30966-T.
In processing appellant’s writ application, the district clerk issued a writ
cause number for the case: WX20-93394-T. However, when the district clerk
filled out a line at the top of the writ application, the district clerk listed the
underlying trial court number as F17-31318-T, an extraneous case involving
appellant. All of the underlying trial court case documents filed with the clerk’s
record in the current appeal are documents from cause no. F17-31318-T. There are
no documents in the clerk’s record that arise from the proceedings in trial court
cause no. F13-30966-T.
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Appellant is appealing the trial court’s November 23, 2020 order finding no
issues requiring a hearing. In that order, the trial court concludes appellant’s writ
application is frivolous and denies relief on the merits. The trial court’s order
states it is issued in writ cause no. WX20-93394-T, but does not refer to either trial
court cause number, and it does not provide any discussion of the case at issue.
Based on the record before us, the Court cannot determine whether the trial
court issued its order finding the writ application frivolous as applied to trial court
cause no. F13-30966-T or as applied to trial court cause no. F17-31318-T. To
clarify the trial court’s intent, we ORDER the trial court to review this matter and
prepare findings of fact and conclusions of law stating whether the trial court’s
November 23, 2020 order finding no issues requiring a hearing in writ cause no.
WX20-93394-T involved considering the writ application as applied to trial court
cause no. F13-30966-T or as applied to trial court cause no. F17-31318-T. The
trial court is ORDERED to conduct such proceedings or hearings as it deems
necessary to make the appropriate findings of fact and conclusions of law.
We ORDER the trial court to transmit, within THIRTY DAYS of the date
of this order, its written findings to the Dallas County District Clerk for filing in a
supplemental clerk’s record.
This appeal is ABATED to allow the trial court to comply with this order.
The appeal shall be reinstated when the findings are received or at such other time
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as the Court deems appropriate. The Court will set a new due date for filing
appellant’s brief upon reinstatement of the appeal.
We DIRECT the Clerk of the Court to transmit copies of this order to the
Honorable Lela D. Mays, Presiding Judge, 283rd Judicial District Court; to Felicia
Pitre, Dallas County District Clerk; to counsel for the State; and to Kurnicus
Hayes, pro se.
/s/ ERIN A. NOWELL
JUSTICE
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