Powell, George Robert Iii

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-80,713-02

EX PARTE GEORGE ROBERT POWELL, III, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. FR 63436-B IN THE 27TH DISTRICT COURT FROM BELL COUNTY

Per curiam. NEWELL, J., not participating.

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 was convicted of aggravated

robbery and sentenced to twenty-eight years’ imprisonment. The Third Court of Appeals affirmed

his conviction. Powell v. State, 03-09-00730-CR (Tex. App. — Austin, April 15, 2011) (not

designated for publication).

Applicant contends, among other things, that he was denied due process when the State failed

to disclose impeachment information about a jailhouse informant to the defense, presented false

testimony from the same witness, and failed to correct that false testimony. The trial court conducted 2

a live habeas hearing, and has determined that the State failed to timely disclose impeachment

information regarding the jailhouse informant, Demetric Smith. In addition, the trial court finds that

the State told Smith that his testimony in this case would be taken into consideration in the

disposition of his own pending charges, a fact that was not disclosed to the defense. Giglio v. United

States, 405 U.S. 150, 155 (1972). The trial court finds that Smith’s testimony at trial that he had not

made any kind of deal in exchange for his testimony, had not asked for anything, did not hope for

any kind of credit, and was testifying only because he wanted to do “the right thing” was false, and

that the State failed to correct such testimony. Napue v. Illinois, 360 U.S. 264, 270, (1959); Duggan

v. State, 778 S.W.2d 465, 468 (Tex. Crim. App. 1989). Relief is granted. The judgment in Cause

No. FR 63436-B in the 27th District Court of Bell County is set aside, and Applicant is remanded

to the custody of the Sheriff of Bell County to answer the charges as set out in the indictment. The

trial court shall issue any necessary bench warrant within 10 days after the mandate of this Court

issues.

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

Institutions Division and Pardons and Paroles Division.

Delivered: June 26, 2019 Do not publish