Ex Parte Kenneth Richard Riker II ( 2019 )

Fourth Court of Appeals
San Antonio, Texas
December 9, 2019
No. 04-19-00389-CR
EX PARTE KENNETH RICHARD RIKER II,
Appellant
From the County Court, Medina County, Texas
Trial Court No. 25621A
Honorable Mark Cashion, Judge Presiding
ORDER
In response to this court’s October 22, 2019 order to correct certain defects in the brief,
Appellant filed his first amended brief on November 4, 2019. In it, he argues that Medina
County Attorney Kim Havel, who represented the State at trial in the conviction case, at trial in
the habeas corpus case, and on appeal in the habeas corpus case (the instant appeal), was a
material witness in the habeas corpus case.
Documents Filed
On November 6, 2019, Ms. Havel noted the allegations in Appellant’s brief pertaining to
her, indicated she could no longer represent the State in this appeal, and asked this court for its
preference on how she file a motion to withdraw.
On November 18, 2019, Ms. Havel moved to withdraw and substitute Christina Mitchell
Busbee, Assistant District Attorney of the 38th Judicial District Attorney’s office, to represent
the State on behalf of Medina County.
On November 19, 2019, in response to Ms. Havel’s motion to withdraw, Appellant
moved to “be allowed to supplement or amend his brief so that he may re-affirm his position and
argument in light of the facts created by [Ms. Havel’s] letter of November 6, 2019.”
On November 21, 2019, Appellant filed a response to the State’s motion to withdraw. In
it he asks this court to deny the State’s motion to substitute counsel and again seeks to amend his
brief.
Appellant’s Motion to Amend or Supplement Brief
Appellant’s November 19, 2019 motion does not explain what facts arise from the State’s
November 6, 2019 letter or how any such facts require justice to allow a supplemental or
amended brief in this case. See TEX. R. APP. P. 38.7 (permitting an amended or supplemental
brief “whenever justice requires”).
Appellant’s November 21, 2019 response to the State’s motion argues that Ms. Havel’s
acknowledgement that Appellant alleged she was a material witness at trial somehow creates a
new fact that Ms. Havel was a material witness at trial.
Appellant’s amended brief already argues that Ms. Havel was a material witness, and
neither his November 19, 2019 motion nor his November 21, 2019 response show how justice
requires this court to grant his motion. See id. Appellant’s motion to supplement or amend his
brief under Rule 38.7 is DENIED.
After the State files its brief, “[A]ppellant may file a reply brief addressing any matter in
the [State’s] brief.” See TEX. R. APP. P. 38.3.
State’s Motion to Withdraw, Substitute Counsel
In his November 21, 2019 response, Appellant asserts that the Medina County Attorney
cannot choose Christina Mitchell Busbee to represent the State on behalf of Medina County.
Appellant cites no applicable authority for his assertion, and we reject it. See TEX. CODE CRIM.
PROC. ANN. art. 2.02.
The State’s motion to withdraw complies with the applicable rule. See TEX. R. APP. P.
6.5(d). The motion to substitute Christina Mitchell Busbee as counsel of record for the State and
allow Kim Havel to withdraw is GRANTED.
We DIRECT the clerk of this court to update this court’s records accordingly.
_________________________________
Patricia O. Alvarez, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 9th day of December, 2019.
___________________________________
MICHAEL A. CRUZ,
Clerk of Court