Davis, Ex Parte Kevin Dwan

• Court: Court of Criminal Appeals of Texas
• Decided: November 26, 2008
• Docket: AP-76,039
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. AP-76,039

EX PARTE KEVIN DWAN DAVIS, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 45,769-A IN THE 30th DISTRICT COURT FROM WICHITA 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 possession of a

controlled substance and sentenced to ten years’ imprisonment. He did not appeal his conviction.

Applicant contends that his plea was involuntary because it was made with the understanding

that he would receive shock probation if he successfully completed his initial period of incarceration.

The Applicant further contends that, subsequent to his plea, this condition of the agreement became

impossible to fulfill as the time to file and hear a motion for shock probation was allowed to expire. 2

The trial court has determined that, based upon the record, the plea was rendered involuntary

due to the failure to timely file a motion for shock probation. Applicant is entitled to relief.

Relief is granted. The judgment in Cause No. 45,769-A in the 30th Judicial District Court

of Wichita County is set aside, and Applicant is remanded to the custody of the sheriff of Wichita

County to answer the charges as set out in the indictment.

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

Institutions Division and Pardons and Paroles Division.

Delivered: November 26, 2008 Do Not Publish