Carder, Ex Parte Dee Edward

• Court: Court of Criminal Appeals of Texas
• Decided: November 9, 2011
• Docket: AP-76,679
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. AP-76,679

EX PARTE DEE EDWARD CARDER, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 09CR0618-83 IN THE 122ND DISTRICT COURT FROM GALVESTON COUNTY

Per curiam.

OPINION

Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the

clerk of the trial court transmitted to this Court this application for writ of habeas corpus. Ex parte

Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of attempted

aggravated sexual assault of a child and sentenced to seven years’ imprisonment. His direct appeal

was dismissed after abatement and a hearing. Carder v. State, No. 14-10-00398-CR (Tex.

App.–Houston [14th Dist.] Aug. 5, 2010) (unpublished).

Applicant contends that counsel, who was appointed specifically to seek shock probation,

did not file the necessary motions to have Applicant considered while the trial court still had 2

jurisdiction under Section 6 of Article 42.12 of the Code of Criminal Procedure.

Trial counsel filed an affidavit with the trial court. Based on that affidavit, the trial court

determined that counsel erred and Applicant was harmed by the error. Applicant is entitled to relief.

Strickland v. Washington, 466 U.S. 668, 687 (1984).

Relief is granted. Applicant’s sentence in Cause No. 09CR0618-83 in the 122nd Judicial

District Court of Galveston County is set aside, and Applicant is remanded to the custody of the

sheriff of Galveston County to be re-sentenced to seven years’ imprisonment. The trial court shall

issue any necessary bench warrant and shall determine whether Applicant is indigent within 10 days

after the mandate of this Court issues. If Applicant is indigent and wishes to be represented by

counsel, the trial court shall immediately appoint an attorney to represent Applicant at sentencing.

Copies of this opinion shall be sent to the Texas Department of Criminal Justice–Correctional

Institutions Division and Pardons and Paroles Division.

Delivered: November 9, 2011 Do Not Publish