Kerry, Gerald

• Court: Court of Criminal Appeals of Texas
• Decided: September 16, 2020
• Docket: WR-91,622-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-91,622-01

EX PARTE GERALD KERRY, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. W17-76537-T(A) IN THE 283RD DISTRICT COURT FROM DALLAS COUNTY

Per curiam.

ORDER

Applicant was convicted of family violence/impeding breath and sentenced to three years’

imprisonment. Applicant filed this application for a writ of habeas corpus in the county of

conviction, and the district clerk forwarded it to this Court. See TEX . CODE CRIM . PROC. art. 11.07.

Applicant contends that his plea was involuntary because counsel informed him that he

would be out on parole in a couple of months, that the prosecutor would enhance his sentencing

range if he failed to take the plea, and that his sentence would be “non-aggravated”. Applicant has

alleged facts that, if true, might entitle him to relief. Brady v. United States, 397 U.S. 742 (1970).

Accordingly, the record should be developed. The trial court is the appropriate forum for findings

of fact. TEX . CODE CRIM . PROC. art. 11.07, § 3(d). The trial court shall order trial counsel to 2

respond to Applicant’s claim. In developing the record, the trial court may use any means set out

in Article 11.07, § 3(d). If the trial court elects to hold a hearing, it shall determine whether

Applicant is indigent. If Applicant is indigent and wants to be represented by counsel, the trial court

shall appoint counsel to represent him at the hearing. See TEX . CODE CRIM . PROC. art. 26.04. If

counsel is appointed or retained, the trial court shall immediately notify this Court of counsel’s

name.

The trial court shall make findings of fact and conclusions of law as to whether Applicant’s

plea was involuntary. The trial court may make any other findings and conclusions that it deems

appropriate in response to Applicant’s claims.

The trial court shall make findings of fact and conclusions of law within ninety days from

the date of this order. The district clerk shall then immediately forward to this Court the trial court’s

findings and conclusions and the record developed on remand, including, among other things,

affidavits, motions, objections, proposed findings and conclusions, orders, and transcripts from

hearings and depositions. See TEX . R. APP . P. 73.4(b)(4). Any extensions of time must be requested

by the trial court and obtained from this Court.

Filed: September 16, 2020 Do not publish