Ex Parte: Kurnicus Hayes ( 2021 )

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
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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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