Kerr, David Wayne

• Court: Court of Criminal Appeals of Texas
• Decided: September 25, 2019
• Docket: WR-82,679-02
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-82,679-02

EX PARTE DAVID WAYNE KERR, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. W-21768-B-2 IN THE 181ST DISTRICT COURT FROM RANDALL 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 a writ of habeas corpus. Ex parte

Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant pleaded guilty to two counts of

aggravated sexual assault and was placed on deferred adjudication probation for eight years on each

count. He was subsequently adjudicated guilty and sentenced to seventy-five years’ imprisonment

on each count. The Seventh Court of Appeals reversed and remanded for a new hearing on the

State’s motion to adjudicate. Kerr v. State, Nos. 07-13-00128-CR & 07-13-00380-CR (Tex.

App.—Amarillo Nov. 25, 2014) (not designated for publication). On remand, after a new hearing

was held, Applicant was adjudicated guilty and sentenced to seventy-five years’ imprisonment on 2

each count.

Applicant contends, among other things, that he was denied his right to appeal after he was

adjudicated guilty and sentenced on remand. We find that Applicant is entitled to the opportunity

to file an out-of-time appeal of the adjudication of guilt and sentencing in cause number 21768-B

from the 181st District Court of Randall County. Applicant is ordered returned to that time at which

he may give a written notice of appeal so that he may then, with the aid of counsel, obtain a

meaningful appeal. Within ten days of the issuance of this opinion, the trial court shall determine

whether Applicant is indigent. If Applicant is indigent and wishes to be represented by counsel, the

trial court shall immediately appoint an attorney to represent Applicant on direct appeal. All time

limits shall be calculated as if the sentence had been imposed on the date on which the mandate of

this Court issues. We hold that, should Applicant desire to prosecute an appeal, he must take

affirmative steps to file a written notice of appeal in the trial court within 30 days after the mandate

of this Court issues. Applicant’s remaining claims are dismissed. See Ex parte Torres, 943 S.W.2d

469 (Tex. Crim. App. 1997).

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

Institutions Division and Pardons and Paroles Division.

Delivered: September 25, 2019 Do not publish