',,.   .


           Mr. Kevin Terrell Tatum                      February 5, 2015
           TDCJ #1409740
           Darrington Unit
           59 Darrington Rd.
           Rosharon, Tx.   77583



           TEXAS COURT OF CRIMINAL APPEALS
           Attn: Hon. ABEL ACOSTA, Clerk
           P.O. Box 12308, Capitol Station
           Austin, Tx. 78711



           Re:   Cause No. 73, 771-;07; ENCLOSED "2nd PETITION       FOR   WRIT   OF
                 MANDAMUS"; TRIAL COURT NO. 1042008-B.



           Dear Court Clerk:

            Enclosed,     please    find an Original Copy of Relator's '"2nd
            Petition For Writ Of Mandamus' filed pursuant to the above
            -styled and numbered c'ause, to be acivanc'ed before the Court.
            Please· file said Writ before the Court, havin9 the appropriate
            Jurisdiction      over    the     Eame,    at· the    Court's earliest
            convenience.       By   copy    of   t-his   letter-, and the enclosed
             'Petition',    I   am forwarding the. same to the Respondent,
            Ho;.1. KRISTIN M. GUINEY, Judge, !79th Judicial District Court,
            Houston, Tx.       77002.    Your help in filing said '2nd Petition'
            before the Court, having the appropriate Jurisdiction over the
            same, at the Court's earlies.t convenience, would be greatly
           ·appreciated.


            Respectfully submitted,



                                                         RECE~VED~~
                                                       OOURTOFCRIMINALAPPEALS
            Kevin Terrell Tatum
            Relator, Pro Se                                  FEB Og 2015
                               Cause No. 73,771-07
                              Tr. Ct. No. 1042008-B




KEVIN TERRELL TATUM,                          §                  In The Texas Court
(Relator)


vs.                                           §                  Of Criminal Appeals
/


Hon. KRtSTIN M. GUINEY, Judye
179th Judicial District Court
(Respondent)                  §                                  Travis County, Texas




                      2nd PETITION FOR WRIT OF MANDAMUS'




TO THE HONORABLE JUDGES OF SAID COURT:

        PLEASE   TAKE NOTICE, that COMES NOW,                      KEVIN    TERRELL    TATUM,

Relator,       Pro    Se,    files     this       his     '2nd    Petition    For     Writ   Of

Mandamus',       in   good     faith     and         in    the     interest    of    justice,

contending Due Process would best be served your                             Peti tionar     by

this Court       Granting       the    same,        and    irt    support    thereof,    your

Relator would present unto this Honorable Court the following:



                                              I •

                                      JURISDICTION

        That   this    Honorable       Court        has Jurisdiction          to    entertain

said     'Petition'         pursuant    to        Art. 22.221,       et~al.,       Government

Code,    Art. 1 Sec. 10, Texas            Constitution;             U.S.C.A~,       Amendment

5; 14.




                                              II.
                                                         2

                                          PROCEDURAL HISTORY

        That       your       Relator           filed        and        presented·            a        Post-Trial

Application             for         Writ         of     Habeas         Corpus,          chalienging                 the

Constitutionality                  of     his     confinement,               on    September · 9,                 2009.

Said    Writ       was        advanced          before       the       179th        Judicial             District

Court,     Harris            County,        Texas,       Cause No. 1042008, along                             with    a

• Motion    For         Leave        To     Supplement                Points       Of   Errors'              to    said

Writ,    before          any       resolution~           On November 10, 2009,                          the. Court

issued     forth             an     Order       'Designating             Issues •· to             be    resolved.

Thereafter,             and       prior     to    the       resolution             of   Relator's             claims

advanced           in    his        Writ,       styled       as       Cause       No. 1042008-A,                   your

Relator     advanced a               'Motion •        before           the    Court      to       'supplement'

points      of      errors,             pursuant        to    'newly          discovered               evidence',

along with the                thrust       to     advance         every available error.                           Your

Relator,       cognizant             of     the       proverbial              one-bite-at-the-apple,

advanced       a     'Motion For Leave To Supplement Points'.                                           The Trial

Court    styled          said        'Motion •          as        a     'Supplemental                  Writ' ,      and

categorized             the       same     as    Cause       No. 1042008-B.                   Said        • Motion •

was    advanced          before           the    Court       on       June    12,       2012,          and    should

have    been        'sup;>lement.ed' with Cause No.                           1042008-A~                The       Trial

Court,         'Designated                Issues       To    Be        Resolved'         in       Cause       Number

1042008-B, on September                         25,   2012.             Moreover,         and          pivotal to

the     'Fundamental               Miscarriage          Of    Justice'              complained                of     in

Relator's Writ,                is    the        presentment            of an • Affidavit • from the

State's     Key         Witness,           CHARLEY          IVORY.           The    Affidavit,               cisarly

exculpatory             to    Relator's           case,      was        'Timely'         advanced             before

the    Court       before           the    resolution             of    Cause       Nos. 1042008-A,                  or

1042008-B.
                                                            3



        Consolidation Of Cause Nos. 1042008-A And 1042008-B



        In     addition,                  realizing         the     Court      erred            in        improperly

categorizing               'Relator's            efforts          . to     'Supplement'                   points       of

errors in his Original Habeas, your Relator                                         moved            to    have    the

Court        'Consolidate'                  Cause        Nos. 1042008-A                  and              1042008-B.

Curiously,           the Trial Court                addressed            the    merits           of       Relator's

Constitutional                 Claims in his Habeas as two ( 2) distinct                                      Writs,

and   at no time               addressed          the       'Affidavit'             of ·the          State's       Key
                                                                                            I

Witness,       CHARLEY           IVORY,          which          consist        of    a   recantation,                  is

exculpatory               in     .nature,          and          establishes          your        Relator          is    a

victim of a fundamental miscarriage of justice.

        Without           resolving          the        . claims         advanced        in      Cause        Number

1042008-B;           and       without       addressing .the exculpatory                              'Affidavit'

of the State's                 Key    Wi t'ness, CHARLEY IVORY, advanced before the

Court, the Trial Court, pursuant to Art. 11.07                                            Sec. 3,            C •. C.P.,

V.A.C.C.P,           forwarded              the     case          before       the       Texas             Court       of

Criminal        Appeals.                  This    Honorable              Court,          addressed              Cause

~o.   1042008-A, only.                      On March 19, 2014,                  this·. Honorable Texas

Court of Criminal                    Appeals       'white carded' your Relator in Cause

No. 1042008-A, only! ·Cause No.                                 73,771~05.


        Your     Relator              advanced          a        'Motion       For       Reconsideration'
                      I

before       th,is    Honorable Court, contending,. inter alia, the Court

did   not      address           the       Merits           of    Relator's          claims,              styled       as

Cause No. 1 042008-B, nor add.ressed the Constitutional                                                    Merit       of

the 'Recantation'                    of    the    State's          Key     Witness,             CHARLEY IVORY,
                                                          4

whose      Affidavit               clearly        exculpates                   your     Relator.               This

Honorable          Corut       denied          • Reconsideration •.                    Afterwards,             your

Relator        advanced        a    FEDERAL           HABEAS              CORPUS        WRIT       before       the

United         States     District             Court,         Southern           District          of     ·Texas,

Houston        Division,,, Cause               No. H-14-1735.                   The    Attorney           General

was Order to respond, and it was the                                  response          of the Assistant

Attorney          General . that           apprised your                   Relator,          for    the     first

time,     he     has a Writ still                pending             in    the    State       Court,        Cause

No •. 1042008-B.               The:      Assista11t            Attorney           General           moved       the

United States           District           Court,          Hon. ·FRANCES              STACY, to hold the

Federal         Writ    in     abeyance,          pending            outcome          and     resolution         of

Cause          No. 1 042008-B.                 Said       Court,          on    September          29,      2014,

Granted the same.

 ,      Your      Relator,.          seeking         confirmation from                      the    Court       that

Cause No. 1042008-B,                     was    in    fact          still       pending,           wrote        the

Court a letter            of       inquiry.           On       10/10/14,          the       Texas       Court    of

Criminal         Appeals       responded             to       said    letter          and           . "
                                                                                              confirmed         the

pending          Writ        before       the     State         Court,          Cause        No. 1042008-B.

Your      Relator       was        not    cognizant            of     the      fact     the       Trial     Court

elected to 'piecemeal' his claims, and thbught the                                                Texas ·court

of     Criminal         Appeals           'white          cardin~•,             on     March        19,     2014,

addressed         the    Merits of both Writs, making· the                                   same       ripe    for

Federal         Review.        After       an     inquiry            to     the       Trial       Court,       your

Relator discovered his Writ                          was       pending before the Trial Court

as   of    January,          2014.         Your       Relator             advanced       a    • Petition        For

Writ      Of     Mandamus •          before          this       Court,         seeking        to    have 'this

Honorable         Court       to     compel       the         Trial        Court        to        resolve       the
                                                          5

Merits         of   his     Claims          in    Cause       No.· 1042008-B,                along with          the

Affidavit           of    the     State's           Key        Witness,           CHARLEY           IVORY.        On

December            18,        2014,         this        Honorable          Court           'Denied          Without

Written          Order'          the    'Motion          For     Leave       To        File       The     Original

Application For Writ Of Mandamus.•

          Your Relator, seeking a                      'speedy        resolution'                of his claim,

Cause           No. 1 042008-B,                  along        with     the             •newly           discovered

evidence'           of    an     'Affidavit •             from        the    State's              Key     Witness,

CHARLEY         IVORY,         that     exculpates            him, advances this                    his       second

(2nd)      'Petition           For     Writ       Of     Mandamus'          seeking              to advance his

case       forward.         Your Relator cannot advance                           forward,              in    having

his       claims     addressed              by    this· Honorable Court, nor the Federal
      '
Court,         (which      is     currently              holding           his         Federal          Habeas    in

Abeyance),               until        the        Trial        Court        move        on    the        Merit     of

Relator's claims.



                                                       III.

                                             MINISTERIAL ACT

          That      your         Relator          asserts       the    act        he        seeks       is    wholly

'Hinisterial'.                 Moreover, your Relator                      has    no        other        remedy at

Law       to     advance         the        Constitutional             Merits               of     his       claims,

towards         resolution,             save        for        the    filing           of        this    his    • 2nd

Petition            For Writ           of    Handamus' •             See    In         Re        Jackson,        238

s.w.      3d 603,         605-606,          (Tex. Ap!J. -Waco 2007); Padieu v. Court

of    Appeals,           392     s.w.       3d    115,    (Tex. Cr. App. 2013);                          Gov. Code

Art. 22.021; u.s.c.A.j Amend. 5; 14.




                                                                                   /
                                                     6

        WHEREFORE,          PREMISES,               ARGUMENTS                     and          AUTHORITIES

CONSIDERED,         your        Relator prays and respectfully urge                                 for     this

Honorable Court            to     Grant      this        h-is       11
                                                                         Second    (2nd) Petition For

writ    Of    Mandamus 11 and compel the Trial                              Court    to    comport          with

the    dictates       of    Art. 11.07          Sec              3,        et.al.,       V.A.C.C.P.           In

addition your Relator prays                     this          Court         determine          there are no

other    remedies          at    Law    to    employ            save for the filing                   of    this

 'Mandamus', that           the       act he seeks is wholly                         •ministerial' and

that     the        deiay        in    resolving              the        claim      is     unreasonable.

Justice       'delayed'          is    Justice       'denied' •               Relator prays
                                                                                         I
                                                                                            for
                                                                                             .
                                                                                                the

relief       sought, which is the               Grant           of        this    his     2nd       effort    to

have    this       Court    Grant       Relief.               Alternatively,              your        Relator

· prays this Court          would       compel       the         Trial           Court    to    conduct       an

 'Evidentiary Hearing'· on the Merits of                                   his    Claim,       in    light of

 the    'newly      discovered          evidence'             from the State's key witness,

CHARLEY       IVORY,       consisting           of        a     'Recantation'             that       comports

with    testimony          of all the 'defense witnesses' , along                                    with    the

other    claims       advanced          in   Cause            No. 1042008-B,              or    any    other,

 further      or    different          relief    this            Court            deem     is        just    and

 proper, in the interest of justice.                                     It is so prayed for.



                                                 Respectfully submitted,




                                                 K~vin Terrell_Tatum
                                                 Relator Pro Se
                                                 TDCJ #1409740
                                                 Darrington Unit
                                                 Rosharon, Tx.   77583
                                                 AFFIDAVIT


PURSUANT         TO     TITLE       6,    CHAPTER         132,       V.T.C.A.,            CIVIL         PRACTICE

AND REMEDIES CODE, AND 28 U.S.C.                          § 1746:




        I,   KEVIN        TERRELL          TATUM, Relator, Pro Se, being                                currently

confined         in     the      Texas       Department                   of     Criminal           Justice         -

Institutional             Division,         at     the Darrington                    Unit,    located           here

in    Brazoria           County,          Texas,    have     read              the    foregoing           11
                                                                                                               SECOND

(2nd)    PETITION             FOR    WRIT OF       MANDAMUS 11        ,        seeking       to    compel         the

Trial    Court to comport with the dictates of Art. 11.07                                                 Sec. 3,

V. A. C. C. P. ,        hereby       DEPOSE         and     DECLARE               under       the       pain      and

penalties         of     Perjury. the foregoing                  1
                                                                     2nd        Petition          For    Writ      Of
             1
Mandamus           is    true       and    correct to the best of Relator 1 s belief

and knowledge.




EXECUTED ON THIS THE                                 DAY oF               Fe/oiU.fJ...tj                  ,     2015.




                                                    KEVIN TERRELL TATUM
                                                    Relator Pro ~e
                                                    TDCJ #1409740
                                                    Darrington Unit
                                                    Rosharon, Tx.   77583
.     '
          .r~
...

                                               CERTIFICATE OF SERVICE




                        I, KEVIN    TERRELL         TATUM,    Relator,      Pro     Se,       files this his

                "2nd PETITION FOR WRIT OF MANDAMUS",                      seeking       to have the Trial

                Court     address        the        merits    of    his    claim     and       to    correct    a

                'Fundamentally       Unjust Incarceration•,                  hereby       CERTIFY        that   a

                true    arid correct legible copy of the foregoing "PETITION",                               was

                served    upon     the    below       named   and    listed       parties,          by   placing

                said 'Petition'      in the Uni'ted States                Mail,    in     a    wrapper, with·-

                                                                                        .Riorl(af':f
                        5 .:rt,                 .
                pre-paid :p,ostage affixed thereto, on this the                                           day of
                                                                                                     1
                 --------------' 2015.




                1.      TEXAS COURT OF CRIMINAL APPEALS
                        Attn: Ron. ABEL ACOSTA, Clerk
                        P.O. Box 12308, Capitol Station
                        Austin, Tx.  78711



                2.      HARRIS COUNTY COURTHOUSE
                        179th Judicial District Court
                        Attn: Ron. KRISTIN M. GUINEY, Judge
                        1201 Franklin St., 18th Fl~
                        Houston, Tx.  77002
