Ex Parte: Kurnicus Hayes

Order entered June 21, 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

We REINSTATE this appeal.

By order entered May 6, 2021, the Court ordered the trial court to make findings of fact regarding which of two cases the trial court was considering when it determined that appellant’s application for writ of habeas corpus was frivolous and he is not manifestly entitled to relief. The trial court has filed findings of fact pursuant to the order. Among other findings, the trial has found:

1. The court finds applicant filed an application for writ of habeas corpus pursuant to the judgment and sentence of the 283rd District Court of Dallas County, Texas in cause number F13-30966-T where applicant entered a plea of not guilty to the felony offense of indecency with a child by sexual contact and was sentenced by a jury to community supervision for a term of ten years.

4. The court finds that in processing applicant’s writ application, the district clerk issued writ cause number WX20-93394-T for this case. 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.

5. The court finds based on the clerk’s record that the court of appeals received underlying trial court documents from cause number F17- 31318-T, an extraneous case involving applicant.

6. The court finds based on its review of the record and its personal knowledge that it reviewed the record in cause number F13-30966-T when it issued its order denying relief in writ cause number WX20- 93394-T.

7. The court finds that the clerk’s record contains the underlying trial court case documents from the incorrect cause number.

8. The court finds that the clerk’s record should contain the underlying trial court case documents from cause number F13-30966- T.

9. The court finds that the order denying relief in writ cause number WX20-93394-T applies to underlying cause F13-30966-T.

We ADOPT the trial court’s findings of fact recited in this order. The Court will not consider any of the documents in the clerk’s record that pertain to cause number F17-31318-T to be part of the record on appeal. The Court will rely upon the documents in the clerk’s record that pertain to writ cause number WX20-93394-T and trial court cause no. F13-30966-T. The Court will consider the trial court’s order denying relief to apply to trial court cause no. F13-30966-T.

We note that the necessary underlying documents from cause number F13-30966-T are found in the clerk’s record from appellant’s direct appeal adjudicated

–2– in appellate cause number 05-16-00740-CR and styled Kurnicus Hayes v. The State of Texas. To promote judicial efficiency and prevent further delay, the Court DIRECTS the Clerk of the Court to transfer into the appellate record of this case a copy of the clerk’s record filed with this Court on October 3, 2016 in cause number 05-16-00740-CR.

Appellant has filed a request for court reporter Yolanda Atkins and official court reporter Vearneas Faggett to prepare a reporter’s record of his initial trial held on May 5–8, 2015. When reviewing the denial of habeas relief, we review the record from any habeas hearing the trial court held and the record as it existed before the trial court at the time of the habeas hearing. Ex parte Martinez, 560 S.W.3d 681, 695 (Tex. App.—San Antonio 2018, pet. ref’d); Ex parte Storm, 49 S.W.3d 401, 402 (Tex. App.—Fort Worth 2000, no pet.). If appellant has the court reporter file such a record, the Court defers to the submission panel the determination of whether it is properly part of the record in this habeas appeal. Otherwise, the Court takes no action on appellant’s request.

Should appellant choose to pursue filing a reporter’s record and arrange for payment for the record, the reporter’s record shall be due on or before August 16, 2021. Appellant’s brief shall be due thirty days after the reporter’s record is filed.

If no reporter’s record is filed, appellant’s brief shall be due on August 16, 2021.

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We DIRECT the Clerk of the Court to transmit copies of this order to the Honorable Lela Lawrence Mays, Presiding Judge, 283rd Judicial District Court; Vearneas Faggett, official court reporter, 283rd Judicial District Court; court reporter Yolanda Atkins; Felicia Pitre, Dallas County District Clerk; Kurnicus Hayes; and counsel for the State.

/s/ ERIN A. NOWELL JUSTICE

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