' ¥Z ;>/®'OS

l¢\) `F\'\Q Coum op

RECE§`J§Q m

CR.\ md ,`,Q\ /\Pf» @@\5 couRroFcR)e¢rrNA;APPE;ALS.
ami-12 2015
AuST;N § .“TQ)<&S _ Ab@gAmtasclerk

I<Q:T&\~Swm Cum&,eq ce‘)?H<aL
l bAPF\;C&MT‘ 9(`1.0 SQ,

Cmsz '/\/Q. 00*1~1310-03;

Co\/`em S\~ew'

f

cAUsE No. 007-1820-'03 c

IN THE
coURT oF cRIMINAL APPEALS
AUSTIN, TEXAS

 

APPLICANTS oBJEcHoNS To THE TRIAL coURTS FINDINGS
IN ms wRIT oF HABEAS coRPUS
AND REQUEST To REMAND
FOR EVIDENTIARY HEARING

 

TO THE HONRABLE COURT:

Comes now Keith Stuart Cumbee, Applicant in the above entitled and numbered
cause and respectfully presents this his Objections to the trial courts findings
and his request that the case be remanded for an evidentiary hearing and in
support thereof will respectfully show the following:

ONE
Applicant tenders that his Habeas €orpus has been tagged with the title of
"Subsequint Writ" basesaupon Applicant filing of previous Habeas Corpuses
within the Smith County Court and it is Applicants firm opinion that his
previous Writs were not attacks on his Motion to Revoke Probation but attacks
against his' 'Original Conviction" and.that he gave plain and clear instructions
to the court that this Habeas Corpus was not against his original conviction
but against his Revocation of Probation Hearing. See attached letter to clerk
as well as page four (4) of his Habeas Applcation.

TWO
Moreover, Applicant tenders that this Habeas Corpus is based upon information
discovered "After" his intitial filing of the previous-Habeas Writs as can
be validated“by the attached envelope from the FJackson Law Firm" whi§h is
postmarked August 08, 2014 from which several of the relied upon documents
were presented to this Applicant. See attached envelope and pages numbered

#51, #57, #59 all of which lay a part of the crucial allegations in Applicants

Habeas Corpus claims herein. and therefore, Applicant meets the burden of

11.07 (4) with the introduction of newly discovered eveidence.

THREE

 

In addition to the following Applicant proffers that the State can consider
the merits of Applicants claim simply because "It is unlikely that applicant'
Saw or could have known what the labratory report and offense reports reflected"
Because he had never layed eyes on the documents prior to his Lawyer supplying
them inhhis last letter to this applicant on 08/08/2014. see document #51
"Lab Report"; Applicant therefore tenders that he has met his burden under
Artcile 11.07, section é(a)(l). _ Further, Applicant tedners he did receive
other and further documents that he did not know existed from Louis Rogers
on 08/27/2014, withnsuch, Applicant submits he should be allowed to pursue
this his writ of Habeas Corpus and lastl§y offers; EX Parte KNipp 236 S,w_3d
214 (Tex; Crim. App. 2007).

§Q§§
Applicant argues that in Minnieweather v. State 636 S.W.2d 235 the Statel
made it clear that a Defendant could not file a collateral attack on his originaly
Conviction while his Revocation hearing was pending, therefore, it is the
firm and sincere belief of this Applicant that there exist a clear and distinct
seperation between the Original conviction and the revocation hearing and
based upon such Applicant chose, with this Application, to challenge not his'
original conviction but the violation of his constitutional rights at and

duringnhis revocation of probation hearing

PRAYER v
Applicant prays that this Honorable Court grant this his Objections to the
trial courts findings andsremands this cause for an evidentiary hearing as
soon as possible.

Applicant proffers that he has read this Document and all it contains and

states under penalty of purjury_that it is true and correct o the best of

his knowedge. _ ` y `
Respectfully Submitted, ’ \\ “Q§l,/

e tuart Cum ee
# 699482

 

 

 

l\`.E».L.Lf'l. 0 l U!'\.I.\J.. \gUl'lDLl?'

 

 

 

 

_ T.D.c.J. # 1699482' ~ ij ,
sTEvENsoN UNIT

1525 FM 766' g_'

Cuero. Tegas 77954 5
\ usc ~9 2014 §
""“ ...i

J. CO. '
1015 RoGERS. sum oouN'rY ols'mcr arm _ _ »-'.~Y

 

 

 

 

Sr»rm_x coUNTY chRIHOUSE
100 N,. BRoAD'wAY. RoojM 204
TYLER. TExAs 7'5'702 ~ Re:' cause 'No. _007-1820-03

Déar Nrs;- R.Ogers.

Greeting*s, enclosed, please find my application for writ'of habeas corpus
pursuant to Art. 11.07 sec, 3 (aj.

l respectfully request that you bring this to the attention fo the court
at your earliest time possible.

Please note that this is not an attack on my original conviction but rather
a constitutional challenge to the actual Probation Revocation Hearing and
should not be construed as a subsequent writ.

I would like to thank you in advance for your time in regards to this matter
and look forward to hearing from you soon.

0

Sir;_ce_rely-,' 01 _ .
' ks 111 sTuART cUMBEE. APPLIGANT

l

 

 

 

 

23

\¢) dmi ilaIHxs

aaa .._
.§e. lung , .
m>:.<o=,mm.>z_
m>=._mzmm mmn_
. . _ ..s.$.~ §e.§
.E §z.a_§o §§ s.wwms:o_.,§£_.mv_ §§ 538 nea§¥~u!. sss
§§ §_,__s_§ 533 sain §%a__§._. ..§_.._=m.=_=. .Se< .:S.»T?_=o

§
.. ave§"§aa .£no§"§u
¢SS=S§B¢!-eo C.os§d.'..¢s&i§a£&§§£o

_SS:E 58 E¢E=u_.E< _.SS=E i~o..t»=< 35 §Em E._.lo .
_'§a:$"§a.»!£o §§ 88£0
=§.=Ea.¢n§. :o~a=$ §§ 5a sea ".€So naming
rests 588..£¢ P._ .omr §e§.§.l B_?.¢ao@n.v_ wis-8c ua!£o

_ . .._.§.:tux .uwmz:u

§
... . ono_wquzoEduxm§>> :om<m._..¢ .

. 2_ OZ_._.._D»W¢ DWNESO§ +EW¥ 20 §§h°.§ "m¢ §

 

E_%S=EES.E ._z_~e=_ since 329

 

x.» .8.>_. n.lzo_.p<._m.
.=s§m.»s§_.. .._&< ">m owt...ln=m

 

 

dmz¢__o._ :o=¥ o._. S§o< m_t mBuSo

_ B»¢z_zm¢nn nn .><x.§_.zoo.
B_ ¢oz :,¢m:»mz __.ma_>¢w» 3§¢<2
. .- §n§n_§!<._ J$E=zo" .
_ . wx:o§ HFQ,.E¢%¢.¢_E_ _

 

 

 

 

Eon_mm m>c<o=wm>z__

_ . mo_>¢mun.mo¢ooz<z . _~.\ A\&\c
,zo_m_>_n_._.zw:mo¢oezm _s<._ J<z__z_zo `

_>hm.m<m 0._4!~1.&0 ._.sz.-.¢<lmnm§ §»§

..ES=E ssa ._.._s££z..__n¥~.z.
to '&£ w…¢~ooo:m»z

ns don£d@ § 0

 

. E.gh_llllo
§§I§<§.§§§§a§§g>l§

»a.eo%._a§. 2a §a»
>_1.2¢3§
_.._Sso .... Sziu

§ gee §.o
§ gee u.S.o
§ .wu 33 a §
§§
§§
§ _US._ _nm..$
Eu¢.d_a. §¢~.Bu.$.$. _
§ § §

_E§..srs:..a§sz__i¢

51

. §§31¢!§]¥§

. § §a§..»s§!§ . E.om.ma.m.moe
B¢£!s¢i......h§£;.iaw§a ....i.....n..........§ §a....:.....a......_n§...o . . w_s_§§. vi
oil § alfriv»:ar.o§¢§:¢l'§bpi§ld¢l§l n . , . gm aim dummud:§.w N.:
§i.»?§& 1¢¥2¢8¢¢1:¢§¢1:!..§ §§¢o~l at zonzu<__.n>wm¢
class §§s.qsl§§§§§§r§isc§£ . .
sg§ni;§ia!e!!l!l€¢qld.§n”wo§ . i_.%¢$..§.o .w §§
§nvl:mw%§!d§llia§a§]-.§¢$ . _ n _ . ` Saw ,"B_

 

 

 

 

 

 

 

 

. . . . ..<? &¢SBHE si . .
... . . »=.» int .a_ .zo§.uo§. .
. ¢.o\mm»|§.§ .. . .~..§:: §§E<o, .:-\..vaz»§v._§~§s.§nz<§

 

38 =_ §§»n.xi£§_a

        

.¢¢.¢».....»m.....,»,.w…;._. ..e$.§_:» ..3.»3..::_::._¥.£._..._. , . .
. .wn¢uh. G¢u.v.o¢.¢.!...alu.o¢u hans 15 nov..n%o.du.o»u# §§m.¢§u.

 
 

 

 

.. . .. . .. . ; . . ...|\._... 23£¢&...§!_=..=5:035§§_5. ,§m§:..§
i. . .._.....- Bs..&u....§. .. mg ~§. §§ . . . . .. _
.. .... . .... .. . . . _ . . . §§==8»§% ni..§.m.=._§= §&BSQ_?._.»:§EE
Sa~?~:. wa..§. _§ . :iouomv sam .§ . . . , .
_ . . . … __F<n . _ . .. . . . o£ 15 S§%.ae.~a.u£$m§oo va B»,EE 4 . 3 _u¢E.S haas 8 58
.. ....».~.i..< 1519-52 §B>Iidu.¢»n§§ . os».£=££c§§£iz;£.§g€§_u 9=>£§§!=3<
. _ |._,ls.¢ E.i...; E¢:.; §n§r¢¥§< , as_=n.~
. sm.¢u.v nnnnnnn ..§..§.n .E<=EE§<. . , .
. .\ _ . . . § B_v.uvso vA.§m.HE we §.._ naa.~€o€ § unqu _¢P_.

 

 

, moo~\n: § . .. h.°:PF.<-¢ .

l . _. . , lea
was-uzi hu~¢d simons §§ 53 voa §Edh£oo£

 

.E§S§§B._$§Sz£§¢

 

§§ zo_._.<$e:..< gin

§E§§SSE_E=SBF: . gmmzacudc§om .¢mn¢o_
HE.»..EB..EE n 1|1|||. l usda __.:E . . §~.H_>.._.z:ou=._§m v ".EE.EQ .E<Eh E..H_
3§§55¥5¢ . q§ .FUESE v ¢>
_ w §SE.¢ENE. § . am
danEEE . 3 . . ,§E,= m §.:ow_.<hmm=~.
.l.lll|¢» nnnnnnnn 3 .¢§BG . as ?s _ _ .
§ , k § :é$§. 9_ 5 ...E.§uo§
JMF$ ,ss§§§§§nw

~$Smmnom=.a¢ md § Som-§-~»r

57

Exhibit Four (4)

(g) ana 13<1?_\45¥`3

: _ §§/S

 

zo§u<.. w>mmE
m_>¢<_._zmo~
, . sam §

. .. 1 _ /. m A_MO-%@_.§

    

 

`iu$=m .._. mg ozo:

   

 

_ . v §§ us .s nw¢m..Em cz< nmzo_m
38 mg 3 2253 m ma E.Omzz<> Z.B¢.Q .,BSEB 8 .R.E._Q.Eu 323
g .E&. % asw.§.é 2a s _§§a w_..a=§_ m .§ we 55 §
“o_.a_ua 05 ...m= v§._$d=oo 8 vargas 2 32£3 _va §u_»v=¢ §..ou o£,_x.<
.E.¢ S“_ _.a ~ 5~._: bd_.s£
no mccann S._ _u» §§ un.__..=oa .€.B.E.u 33 Bo=v._u._u_.o>on¢ vi E mRB.>»
. s 2 ESAS..§_.£ .s.__.`.=$!m£éio.~£o&¢ 3 .3=:3.§=..3_3=_5...&.0@22<>
235 555 use .:._2 .»aa_: 3 § .SN vs § .z>»ozu b wm

mwmz._.§> ¢Oh

qumznou uz_ez~.o.a<¢u§o
m<x..=. .E._,Eov §§ m wm§=u ==5_.
~_QbSou S_EME m .v,>
.Eu§=. =E ».:h z_ m §.F .B.E<S mE.

¢§_.`.S .OZ HMD_¢U

59

/.’.

/

FIL-ED

!_O!S ROGERS

Cause No. 007-1820-03-C

ozsi“n:or cLERK

IN THE 7“1DIsTRICie<':"<gi:j(izaro m log 28

EX PARTE § _
§ $M_ITH couNTY. YE><.AS
§ OF BY- 5 7 ' '
_ . § b - §§Pt")w',°
KEITH sTUART CUMBEE § sMITH CoUNTY, TEXAS

 

, STATE’S ANSWER TO SUCCESSIV.E‘
APPLICATION FOR WRIT OF HABEAS CORPUS

 

TO THE HONORABLE JUDGE OF THE 7‘h DISTRICT COURT:

Pursuant to Section 3 and Section 4, Article ll.07 of the Texas Code of

lCriminal .Procedure, the State, acting through its undersigned Assistant Criminal

District Attorney, urges the Court to tind that there is no necessity for a hearing on
any of Applicant’s allegations and to recommend relief be denied. This is a
successive Writ application under Article l 1.07.
I. FlRST ART. 11.07 WRIT APPLlCA'l`ION

On February l6, 2012, Applicant filed With the Court ofCriminal Appeals his

first application for habeas relief under Art. l l .()7 of the Code of Crirninal Procedure.

The Court subsequently denied relief on this application on March 21, 2009. (WR- d

77,210-01 /007-1820-03-A).
II. SECOND ART. 11.07 WRlT APPLlCATIoN

On October l l, 2013, Applicant filed With the Court of Criminal.Appeals his

second application for habeas relief under Art. 1 1.07 of the Code of Criminal
Procedure.. The Court dismissed this application as a subsequent writ on January 8,
2014. (WR-77,210-02 /007-1820-03-B).
III. THE CURRENT WRIT APPLICATION

On December 9, 2014, Applicant filedthis, his third Art. ll.07 application for
a Writ of Habeas Corpus under the above-numbered cause.
IV. STAT`E'MENT OF FACTS

The State challenges all factual allegations made by Applicant in his Writ
application. This is Applicant’s third and subsequent Writ application and it appears
to raisel:c-omplaints that have been available since the time of his trial and before his
original Writ applicatio§ In addition, Applicant has failed to allege Sufficient facts for
this Court to determine that he has satisfied the dictates of Article l l.07'(4) of the
Texas Code ofCriminal Procedure.
V. APPLICANT’S BURDEN OF PROOF

This is a subsequent Writ application Which falls under the prohibition found
in Article l l.07. Texas Code of Criminal Procedure Art. l l.O7(4)'states that:

If a subsequent application fora Writ of habeas corpus is filed
after filing an initial application, a Court may not consider the merits of

or grant relief based on the subsequent application unless the application
_ _ contains sufficient specific facts establishing that:

 

(l) the current claims and issues have not been and could not
have been presented previously in an original application or in a
previously considered application filed under this article because
the factual or legal basis for the claim Was unavailable on the date
the Applicant filed the previous application; or,
(2)'by a preponderance of the evidence, but for a violation of the
United States Constitution no rational juror could have found the
Applicant guilty beyond a reasonable doubt.

TEX. CoDE CRlM. PRo. ANN. Art. 11.07 (4) (Vernon 2014).

Thus, under the plain language of the statute, once Applicant filed`his original
application under this cause number, all subsequent applications regarding the same ‘
conviction must meet one of the two conditions set forth in Art. 1-1.07(4). The Court
of Criminal Appeals has previously determined that this subsection of Art. l l.07 Was
intended “to limit a convicted person to ‘one bite at the apple.”’ Ex parte Whitesicle,
12 S.W.3d 819, 820 (TeX.Crim.App. 2000); Ex parte Torres, 943 S.W.2d 469, 474
(Tex.Crim.App. 1997) (under Art. ll.07 (4), “subsequent applications” includes all
applications for Writs of habeas corpus regarding the same conviction).

Applicant here has not made the requisite preliminary showings for
consideration of a subsequent writ. His claim ofineffective assistance of trial counsel
rests entirely upon allegations existing since the time of trial. Applicant has further

failed to show any reason Why he could not have raised the current grounds for relief

in either of his previous Writ applications

Lz.)

VI. CoNCLUsIoN

This Court’s authority is strictly limited by Article ll.07 to finding that this
current application represents a subsequent application without any exception to the
rule regarding the same. The Court “ may not consider the merits of or grant relief’
in a subsequent writ application without the requisite showings. TEX. CODE CRIM.
PRO. Ann. Art. ll.07 (4) (Vernon '201_4). There is nothing in this subsequent writ
application that comes remotely close to establishing this'burden under the law.

Moreover, Applicant has not established that he is entitled to relief. This application

has no merit and should be denied.

 

ViI. PRAYER
WHEREFORE, PREMISES CONSIDERED, the State prays that the Court find
that there are no controverted, previously unresolved facts material to the legality of
Applicant’s confinement, that there is no necessity for a fact-finding hearing as there
is ample evidence in the record for the Court to rule on the relief sought, that the
Court enter Findings of.Fact and Conclusions of Law, and recommend that, since
Applicant has failed to meet his burden in filing a subsequent writ application, the
Court cannot reach the merits of his claims, and send him hence without delay.
Respectfully submitted,
D. l\/IATT Bl`NGHAl\/I

Criminal District Attorney
Smith County, Texas

Miéhael J. West

Asst. Criminal District Attorney
SBOT# 21203300

100 N. Broadway, 4th Fl.

Tyler, Texas 75 702

(903) 590-1720

(903) 590-1719 (fax)

 

 

CERTIFICATE oF SERvICE
l hereby certify that a copy of the State’s Answer in Op_position to Applicant’s
application for writ of habeas corpus was served United States mail on December 30,
2014, on Applicant, Keith Stuart Cumbee, TDCJ-ID # 1699482, Texas Department
of Criminal Justice,'Stevenson 'Unit, 1525 Fl\/l 766, Cuero, Texas 77954.

WQ

Micélribel J. West

 

 

EX PARTE

Cause No. 007-1820-03!€

lN THE 7"‘ DISTRICT CoURT

§

§

§ GF ,

§ ' y .
KEITH sTUART CUMBEE § sMITH CoUNTY, TEXAs

CERTIFICATE: wRIT oF HABEAS CORPUS
FINDINGs oF FACT AND CoNCLUsioNs oF LAw

On December 9, 2014, the defendant in Cause Number 007-1820- 03 filed his

third Application for a Writ ofHabeas Corpus. The State filed a Response. The Court
hereby enters its findings and conclusions.

The Court takes judicial notice of all prior proceedings, reporter’s records, the

documents and papers contained in the files, and the docket sheets in Cause Number
007-1820-03 and the first, second and third Applications for Writ of Habeas Corpus
in Cause Numbers`007-1820-03-A, 007-1820-03-B and 007-1820~03-C, respectively.
The Court enters the following F indings of Fact and Conclusions of Law:

1._

On February 16, 2012, the defendant filed with the Court of Criminal Appeals
his first application for habeas relief under-Art. l l.07 of the Code of Criminal
Procedure. The Court subsequently denied relief on this application on l\/larch

21, 2009. (WR-77,210-01 /007-1820-03-A).

On October ll, 2013, the defendant filed with the Court of Criminal Appeals
his second application for habeas relief under Art. ll.07 of the Code of

Criminal Procedure. The Court dismissed this application as a subsequent writ
on January 8, 2014. (WR-77,210-02 /007-1820-03-B).

On December 9, 2014, the defendant filed his third Art. 11.07 application for
a Writ of Habeas Corpus under the above-numbered cause.

The defen`dant’s writ application is a subsequent writ application under Article l

ll.07(4) of the Code of Criminal Procedure. As such, he must make'the
requisite showings under that section that:

Page l

 

(l) the current claims and issues have not been and could not have been
presented previously in an original application or in a previously
considered application filed under this article because the factual or
legal basis for the claim was unavailable'on the date the Applicant filed
the previous application; or, ~

(2) by a preponderance of the evidence, but for a violation of the United
States Constitution no rational juror could have found the Applicant
guilty beyond a reasonable doubt.

5. The defendant has failed to meet his burden with this current application.
Specifically where he has not show good cause why he could not raise his
current grounds in a previous writ application

6. The legal procedures in these cases were proper and as provided by the
Constitution and Texas law.

The Court concludes that the defendant may be in abuse of the writ process and
that it cannot consider the merits of, or grant relief based upon, this subsequent writ
application because the defendant has not met his burden under the law.
Alternatively, the defendant has not raised a meritable claim and this‘application
should in all things be DENlED.

Page 2

 

ORD_ER

The Court orders the Clerk of the Court to immediately transfer to the Court
of Criminal Appeals:

(l) a copy of the Application for Writ of Habeas Corpus;

(2) any answers and waivers executed by the State;

(3) ja copy of the files and docket sheets in the original cause of action and
the files and docket sheets in the first Application for Writ of Habeas
Corpus; and

(4) This certificate

SIGNED AND CERTIFIED on this day of , 201 .

 

HONORABLE KERRY RUSSELL
Judge, 7th District Court
SMITH COUNTY, TEXAS

Page 3

 

