     ,;




    Kevin s. Menniefee
    1727174 - Ellis Unit
    1697 FM 980                                                       .RECEIVED IN
    Huntsville, Texas 77343                                    COURT OF CRIMINAL APPEALf

                                June   :7 ,   2016                      JUN 13 2016
    Mr. Abel Acosta, Appeal Clerk
    COURT OF CRIMINAL APPEALS
    12308 Capitol Station
    Supreme Court Building
    A~stin, Texas 787~1

    Re: Cause No. 287~36C-81>
        Writ of Mandmaus

    near Mr. Acosta, Appeal Clerk:

    Please find enclosed Relator's Writ of Mandmaus to be
    filed among the papers in the above number and cause.

    By copy of this letter, I am forwarding a copy of the same
    to the district Clerk of Kaufman County, Texas.

    Thank you for your time and consideration in this matter.


    Sincerely, _       •   ~
    ~~
    KEVIN S. MENNIEFEE
-   ReJ.a tor Pro SE
                                              This document contains some
    files cc:   Mr~ Rhonda Hughey             pagr:s that are of poor quality ·
                District Clerk                at the time of imaging.
                County Courthouse
                100   w.
                       Mulberry St.
                Kaufman, Texas 751~2
                                       ..

                       No.
                                     IN THE

                  TEXAS COURT OF CRIMINAL APPEALS

                              AUSTIN, TEXAS

KEVIN SHARONE MENNIEFEE                 §
Relator,                                §
                                        §
Vs.                                     §     No.: 2 87136C-86
                                        §
The ~th Judicial District               §
Court of Kaufman County, Texas§
Respondent.                   §
                                        §

              APPLICATION FOR WRIT OF MANDAMUS,
 PURSUANT TO RULE 52.8(c), TEX. RULE OF APPELLATE PROCEDURE,
        DIRECTING THE 86th JUDICIAL DISTRICT COURT TcO
   PROCESS RELATOR'S APPLICATION FOR WRIT OF HABEAS CORPUS
              PURSUANT TO V.A.C;.C.P. ART. 11.07

TO THE HONORABLE JUDGES OF SAID APPEAL COURT:

       COMES NOW, KEVIN SHARONE MENitllriEFEE, TDC No. # 1727174,

Pro Se Relator, and files this,: Application for WRit of

Mandamus requesting this court to direct the 86rd Judicial

District Court of Kaufman County, Texas to process his State

aplication for writ of Habeas Corpus pursuant to V.A.C.C.P.

art. 11.07 in cause number 28736C-86, presently pending

before the Respondent •. In support thereof, Relator will

show the following:

                                       I.

                                  JURISIDCTION

       This court has jurisdiction to issue a "Writ of Man-

amus" in this case pursuant to article 5 § V of the Texas

Constitution. Landford       v.    Fourteenth Court of Appeals, 847

s.w.   581 (Tex. Cir. 11993). MOreover, purpose of ,(1978) Amend-

ment to provision of Texas Constitution governing power

of Court of Criminal Appeals to issue extraordinary writs;
                                     -1-
was to confer upon the Court of Criminal Appeals additional

power to grant extraordinary writs in cases regarding "Criminal

matters". Vernon's Ann. Canst., Art~ 5 §            v.,   State Ex Rel.

Vance v. Routt, 5:71       s.w. 2d. 90,':3' (Tex. Crim. App. 1l978).
                                      II.
                           STATEMENT OF THE CASE

        Upon receipt of an application for writ of Habeas Corpus

challenging a final felony conviction, the attorney representing

the State has (15) days to respond. See, Tex. Code Crim.

Proc., art. i1~07,§(b). After the expiration of the time

allowed for the State to respond, the trial court is allowed

(20) days to determine whether the application contain allegations

of controverted, previously unresolved facts material to

the 'legality of the applicant's confinement. See, art. 11.1. 07, §

3(c)~   If the trial court determine that the application

for writ of Habeas Corpus presents such issues it shall

enter an order within 20 days of the expiration of the time

allowed for the State to reply designating the issues of

fact to    resolved~ n.    Thus, the trial court has 35 days to

enter an order designating issue after the filing date of

an ll.G7 application for a writ of Habeas Corpus. Article

mt~07   does not authorize the trial court to extend the time

limitation imposed by the statute, other than by a •timely•

entry of an order designating issues. See, McCree v. Hampton,

824   s-..w. 2tl 578,   579 (Tex.   Crim~   App. ll992)(emphasis added).



                                      -2-
Without a timely entry of an order designating the issue,

article 11.07 imposed a duty upon the clerk of the trial

court to "immediately" transmit to the Court of Criminal

Appeals the record from the application for a writ of Habeas

Corpus, deeming the trial court's inaction              a finding that

no issue of fact require further resolution. See, article

11 • 07, § 3 ( c ) •

       In this case, Relator filed his State Application

for writ of Habeas Corpus by certified mail, certified mail

number 7013-1710-0001-0996-9451 January 28, 2016. The Dis-

trict CLerk Office stample marked the date of February 2,

2016;. See Cover letter marked as exhibit A attached: On

March 04, 2016, Mr. Rhonda Hughey, the District Clerk

of Kaufman County, Texas wrote Applicant a letter informing

Applican~      that the writ      ~f   Habeas Corpus was forwarded to

the Court of Criminal Appeal. See, exhibit B attached: From

March 04, 2016 Applicant was thinking that his State

Application was filed in the Texas Court of Criminal Appeal

which Mr. Hughey has fabricated a letter              statingthat

his     writ was send to the Court of Criminal Appeals. See,

exhibit B; The district clerk, Mr. Hughey, wilful, negligent,

incompetence,          f~ilure   of duty, unprofessional conduct,

fraud and misrepresentation of office duty. See, Govern..:

ment Code 51.303(e)(2).



                                         -3-
The Distirct Clerk's forwarding of State Writ to the Court
of Criminal Appeal was mandatory, ministerial duty, and

applicant had no other adequate remedy, such that mandamus

would issue to compel clerk to perform this duty.          V.T.C.A~

Government Code § 22.221(a); such is necessary to enforce

the Court of Criminal Appeal. In Re Coronoado, 980          s.w.
2d 691, 692 (Tex. App.     ~   San Antonio 1998, Orig Proceeding);

Summit Saving Ass'n v. Garcia, 727        s.w.   2d. 106, 107 Tex.

App. - San Antonio 198~, Orig Proceeding. A Mandamus is
proper issues in this case because the record establishes

(1) a clear abuse of discretion and a violation of a duty
imposed by law, and (2) the absence of a clear and adequate

remedy at law. Cantu v. Longoria, 878 S.W. 2d. 131 (Tex.

1994); Walker v. Packer, 827       s.w.   2d 833, 839-40 (Tex. 1992).

On May 3, 2016 Applicant wrote Mr. Abel Acosta, the Appeal

clerk for the Court of criminal Appeals inquiring about

the notification "White Card" informing Applicant that the
Appeal Court received his State Application. See, exhibit

C   attached~   On May 11, 2016, Applicant received a letter

from Mr. Abel Acosta, Appeal CLerk that after a thorough

search of the Court's records, the court find that Applicant
do not have a writ of Habeas Corpus filed in the Court of

Criminal Appeals at this time. See, exhibit D attached.

Mr. Hughey, the district clerk of Kaufman County committed

fraud and misrepresentation of his Office          Duty~




                                   -4-
The distirct clerk has no authority to fabricate a                  le~~er

to applicant for the sole purpose of misleading him to

•think" his State Application writ was forwarded to the

Court of Criminal        Appeals~   See, exhibit B; the district

clerk's action is indeed &misrepresentation of Office duty

and fraud.

                                      III.

                             BRIEF IN SUPPORT

       A act is "ministerial" for purpose of request for writ

Mandamus, if it constitute duty clearly fixed and required

by law, without exercise of discretion or judgment. See,

Engle v. Locker, 820        S.W~    2d. 47 (1991); Curry v. Gray,

728   s.w.    2d. 128 (Tex. Crim. App. 1997). While it is the

general rule that a mandamus will not be issue to control

the action of an inferrior Court or Public Officer in a

matter involving discretion. However, the writ may be issue

"in a proper case" to correct a clear abuse of discretion.

Crane v. Turnks, 160 Tex. 182, 328             s.w.    2d. 434, 440 (1959).

The Suprem Co:u:r::t has recognized that adaption of this excep.tion

is particularly important "where the remedy by way of appeal

is inadequate."West v. Solitos, 563             s.w.    2d. 240, 244 (Tex.

!19718). In re-iterating this standard,           in Johnson v. Fourth

Court of Appeals, 700        s.w.   2d. 916, 917       (Tex~   1985). The

Supreme Court stated: " •••• Mandmaus issues only to correct

a clear      abus~   of discretion or the violation of a duty imposed

by law when there is no other adequate remedy by law. Id.

at 917.
                                      ...:5-
                                  IV.

                        ABUSE OF DISCRETION

     The Relator further contends the Respondent's failure

to apply the law with respect to article 11.07 §3(c),                ex~

plicitly enumerate that the Respondent process Relator's

Habeas Corpus action within specified time limitation

and forward the application top This Appeal Court. In view

thereof, the Respondent has but one choice, and it is the

duty prescribe by article 11.07, the failure to perform
this duty constitutes a clear and prejudicial abuse of the
Respondent duty fixed by       1aw. Consequently, Relator's
right of access to the courts; and           ~o   be heard on his Habeas

Corpus action; has quite stringently been impaired by the
action of the   Respondent~


     Therefore, writ of Mandmaus will be issue when under

the circumstances, law and facts permit trial court to make

but one decision and it refuses to make that decision. See,

Proffer v. Yates, 734   s.w.    2d~    671,673     (Tex.Cir~    App. 1992).

     In Walker v. Packey, 827         s.w.   2d. 833    (Tex~   Crim. App.

1992). The Supreme Court statedi " ••         ~.trial   court clearly

abuses its discretion, for purpose of Mandamus with the

respect to resolution of factual issues or matters committed
to trial court's discretion, only if trial court could rea-

sonably have. reach only one decision." Id. Also see,

                                  -6-
State v. Walker, 679     S.W~    2d. 484 (Tex. Cir. 1984)("Mandamus

will lie to correct an action of trial judge who commits

abuse of discretion, or     ~iolation     of clear duty under law

and when there is no other adequate remedy at law"). Ayres

v. Canoles, 790   s.w.   2d. 54 (Tex. Crim. App.       [990)("Writ

of Mandmaus will be issue to correct trial court actions

when there has been clear ·abuse of discretion particularly

where remedy by law of appeal is in adequate.")

                                    v.
              APPEAL IS NOT AN ADEQUATE REMEDY

     The Relator contends that the issue of the trial court

to apply the dictates of        V.A.C.C~P.,   Article 11.07, is not

an appealable issue.

                                    VI.

                         PRAYER OF RELATOR

     Wherefore, premises considered the Relator, prays that

this court issue an order directing the Respondent to make

proposed recommendation, finding of facts and conclusion

of law, and forward the same to this court within thirty

(30) days.


                                   Respectfully Submitted,

                                   ~ rYI~                #t7J-.7171
                                   Kevin Menniefee
                                   TDC No. 1727174
                                   Ellis Unit
                                   1697 FM 980
                                   Huntsville, Texa~ 77343

                                    -7-
                         CERTIFICATE OF SERVICE

     I,   \{e\i\o Mtoo\e..-.f.(_...L   , TDC No.

certifiy that a true and correct copy of the foregoing

Application for Writ of Mandamus has been served by placing

the same in the United STates mail on this         ]    day of

  Jvne
--~~~~~----------------
                                ,2016, address to the District

Clerk Office at:

                    Mr.Rhonda Hughey
                    District Clerk
                    County Courthouse
                    100 w. Mulberry St".
                    Kaufman, Texas 7514 2




                                       Kevin S. Menniefee
                                       Pro SE Applicant
             \ .
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.,


                                         Rhonda Hughey
                                             District Clerk

                                                                                     County Courthouse
                                                                                     100 W. Mulberry St.
                                            Febrqary 2, 2016                        Kaufman, Texas 75142
     Kaufman County                                                                     972-932-0279


        Kevin Menniefee, TDCJ # 1727174
        O.B. Ellis Unit
        1697 FM 980
        Huntsvjlle, Texas 77343


       RE: 28736C-86
       EX PARTE: Kevin Menniefee

       Dear Mr. Menniefee:

       This is to acknowledge receipt of the above captioned post conviction petition for writ of
       habeas corpus. Article 11.07 of the Texas Code of Criminal Procedure afford the State 15
       days in which it may answer. After those 15 days, the Court has 20 days in which it may
       order a hearing. If no order has been entered 35 days from the above date, the petition
       will ~e forwarded to the CoUrt of Criminal Appeals for their consideration.

             1). Defendant receive~: Countl; Twenty Five (25) Years in the Texas
             Department of Criminal Justice Institutional Division: Fine:$0; Court
             Cost: $33 I .00 ; Restitution:$0 Time Credited: From 05/09/2010 to Present
             Count 2; Fourteen Months in the Texas Department of Criminal Justice
             Institutional Division, Fine: $0; Court Cost: $286.00; Restitution: $0

             2) Judgment: Affirmed, April30, 2012, Memorandum Opinion: Affirmed,
             April30, 2012; Mandate: Mfirmeq; November 1, 2012; Memorandum
             qpi11ion:Affumed, hwe 21,2013, J~dgment: Jurte 21, 2013; (Dismissed)
             Mari.date: SeptemberJ, 2013 (Dismissed) Co'urtof Appeals Fifth District of.
             Texas at Dallas.                                    ·                    ·

             3). Application for Writ of Habeas Corpus Filed on 07/10/2013 (28736A-86) Writ
             Dismissed

             4). Application for Writ of Habeas Corpus Filed on 11/7/2013) 28736B-86) Writ
             Denied

             5). Application for Writ ofHabeas Corpus Filed on 02/02/2016) 28736C-86)
,.




     All further correspondence should indicate the above cause number 28736C-:S6


     ~~·tt,tk~
     Rhonda Hughey
     District Clerk
                      -n·- ~n,
     RH/dw
     Enclosure

     Cc: Erliegh Norville Wiley, Criminal District Attorney
         Kevin Sharone Menniefee
     .                                                   '\

·,       •·


                                                                                           ,f3
              '    (1




                                                        Rhonda Hughey
                                                              District Clerk
                                                                                  ./




                                                                                                  County Courthouse
                                                                                                          '~
                                                                                                  100 W. Mulberry St.
                                                                                                 Kaufman, Texas 75142
                  Kaufman County                              March 4, 2016                          972-932-0279




                        Court of Criminal Appeals
                        12308 Capitol Station
                        Supreme Court Building
                        Austin, Texas 78711


                        '
                        RE: Cause No. 28736C-86
                            Ex Parte: Kevin Sharone Menniefee

                        Dear Clerk,

                        Enclosed, please find the Clerk's Record for Writ of Habeas Corpus to be filed in your
                        Court, regarding the captioned cause number.

                        If you have any questions, please contact our office.

                        Sincerely,




                        ~=y~
                        District Clerk
                        Kaufman County, Texas

                        RH/dw

                        Cc: Erleigh Norville Wiley, . District Attorney
                            Kevin Sharone Menniefee, Applicant


                        Enclosure
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                                                                                          D
SHARON KELLER                                                                                            ABEL ACOSTA
 PRESIDING JUDGE                       COURT OF- CRIMINAL                                                    CLERK
                                                                                                          (512)46J.J551

LAWRENCE E. MEYERS                         APPEALS
CHERYL JOHNSON                                                                                          SIAN SCHILHAB
MIKE KEASLER
                                     P.O. BOX 12308, CAPITOL STATION                                    GENERAL COLINSEL
                                           AUSTIN, TEXAS 78711                                            (512) 46J.J600
BARBARA P. HERVEY
ELSA ALCALA
BERT RICHARDSON
KEVIN P. YEARY
DAVID NEWELL
 JUDGES




May 11,2016

Kevin Menniefee #1727174
Ellis Unit
1697 FM 980
Huntsville, TX 77343

RE: Your enclosed correspondence


Dear Mr. Menniefee:

After a thorough search of our records, we find that you do not have a Writ of Habeas Corpus
filed in the Court of Criminal Appeals at this time. If you have any further questions or
concerns, please direct them to the District Clerk in the convicting county where you originally
filed the application.

I am herewith returning your documents.




AA!llg
Enclosure




                     SUPREME COURT BUILDING, 20 I WEST 14TH STREET, ROOM I 06, AUSTIN, TEXAS   7870 I
                                       WEBSITE WWW.CCA.COURTS.STATE.TX.US
