Minnfee v. Simms, DA, No. (Tex.App.- Austin, Mar. 13, 2008)( ) (Before Justices Patterson, Puryear and Henson)Barry Dwayne Minnfee v. Randall C. Simms, District Attorney; and Don Clemmer, Deputy Attorney General--Appeal from 200th District Court of Travis County
AFFIRMED: Barry Dwayne Minnfee v. Randall C. Simms, District Attorney; and Don Clemmer, Deputy Attorney General--Appeal from 200th District Court of Travis County

M E M O R A N D U M O P I N I O N

Barry Dwayne Minnfee, an inmate incarcerated in the Texas Department of Criminal Justice, appeals pro se from a court order dismissing his petition as frivolous and declaring him a vexatious litigant. See Tex. Civ. Prac. & Rem. Code Ann. §§ 11.054, .101-02, 14.003(a)(2) (West 2002). We affirm the trial court's order.

Based upon our review of the record, we cannot conclude that the trial court abused its discretion when it found that appellant was a vexatious litigant. See Tex. Civ. Prac. & Rem. Code Ann. § 11.054. Appellant was not likely to prevail in the underlying litigation, having failed to adequately assert any cause of action or any basis for obtaining post-conviction DNA forensic testing or demonstrating that he could carry his burden of proof on any of the requirements of the statute. See id. Within the seven-year period preceding defendants' motion to declare appellant a vexatious litigant, appellant had prosecuted in propria persona at least five litigations finally determined adversely against him and determined to be groundless. See id. § 11.054(1). Yet even after several of appellant's suits have been finally determined adversely to appellant, he continues to file additional suits involving the same facts, claims, or controversies previously determined against him. See id. § 11.054(2)(B). Finding no abuse of discretion, we resolve appellant's issue against him.

CONCLUSION

Having overruled appellant's issue, we affirm the trial court's order of dismissal and declaration that appellant is a vexatious litigant.