in the Interest of K. L. W., Child v. Department of Family and Protective Services ( 2019 )

COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER ON MOTIONS
Appellate case name: In the Interest of K.L.W., A Child
Appellate case number: 01-18-00485-CV
Trial court case number: 2017-02559J
Trial court: 314th District Court of Harris County
On March 28, 2019, appellants Brandy Brenay Charles and Ronald Dwayne
Whitfield filed a pro se letter-motion entitled, “Notices of and Motions for: (1) Transfer
to Second Through and to Fourteenth Courts of Appeals of Texas” and “(2) For Both Stay
and Recall of Mandates Based on Fraud Upon the Courts” in this case and a prior criminal
case, 01-92-00617-CR. After the Clerk of this Court forwarded appellants’ motion to
transfer this case on April 2, 2019, to the Texas Supreme Court, that motion was denied on
April 3, 2019. See Misc. Docket No. 19-9025 (Tex. Apr. 3, 2019). Thus, the motion to
transfer is denied.
Then on April 1 and 5, 2019, appellants also filed pro se letter-motions for stay and
recall of criminal and civil mandates in this case, in the related 01-18-00311-CV case, and
in 01-92-00617-CR.1 With respect to this case, this Court’s judgment was issued on
December 5, 2018, appellants’ motions for rehearing/en banc reconsideration were denied
on December 20, 2018, their petitions for review were denied on February 15, 2019, and
their motions for rehearing were denied by the Texas Supreme Court on March 22, 2019.
Under Rule 18.2, “[a] party may move to stay issuance of the mandate pending the
United States Supreme Court’s disposition of a petition for writ of certiorari” if this Court
“finds that the grounds are substantial and that the petitioner or others would incur serious
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With respect to appellant Whitfield’s letter-motions to recall his criminal mandate
submitted on March 28, April 1 and 5, 2019, in 01-92-00617-CR, those motions were
marked as received, but not filed, by the Clerk of this Court pursuant to this Court’s 2015
Order. See Whitfield v. State, No. 01-92-00617-CR (Tex. App.—Houston [1st Dist.] Order
on Mot. for En Banc Reconsideration, Aug. 25, 2015) (stating that no further motions will
be filed in that case absent an order from the Court of Criminal Appeals).
hardship from the mandate’s issuance if the United States Supreme Court were later to
reverse the judgment.” TEX. R. APP. P. 18.2. However, appellants’ motions for “Both Stay
and Recall of Mandates Based on Fraud Upon the Courts” and letter-motion for a “More
Definite Statement as to: (1) Both “Stay” and “Recall” of Criminal and Civil Mandates,
Both as “Void” [] and Without Notice” fail to assert “substantial” grounds for staying the
mandate, such as by alleging a “substantial federal question for consideration” in their
petition for writ of certiorari and that they will incur “serious hardship” if this Court issues
its mandate and the U.S. Supreme Court later reverses the judgment. See, e.g., McIntosh
v. Texas State Bd. of Dental Examiners, No. 07-12-00196-CV, 2014 WL 4656628, at *1
(Tex. App.—Amarillo Sept. 17, 2014, Order) (per curiam) (granting motion to stay
mandate because pending cert. petition “presented a substantial federal question”), cert.
denied, 135 S. Ct. 722 (U.S. Dec. 1, 2014).
Accordingly, appellants’ March 28, April 1 and 5, 2019 letter-motions to transfer
and for stay and recall of criminal and civil mandates are denied. The Court directs the
Clerk of this Court to issue the mandate immediately with this Order. See TEX. R. APP. P.
18.1(a)(2).
It is so ORDERED.
Judge’s signature: ____/s/ Laura C. Higley___________
x Acting individually Acting for the Panel
Date: __April 9, 2019___
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