Williams, Kiuntis Denard

• Court: Court of Criminal Appeals of Texas
• Decided: April 9, 2014
• Docket: WR-80,869-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

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NO. WR-80,869-01

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EX PARTE KIUNTIS D. WILLIAMS, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS

FROM KAUFMAN COUNTY

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           Johnson, J., filed a concurring statement.

C O N C U R R I N G S T A T E M E N T

            I agree that relief is properly denied on this application for habeas corpus. Applicant alleges that counsel failed to advise him of the details of his plea bargain and asserts that, without his knowledge, the nature of his offense was changed from unlawful possession of a firearm by a felon to possession of a controlled substance with the intent to deliver. A review of the record, however, disproves Applicant’s claim that he believed he pleaded guilty to possession of a firearm.

            Applicant was indicted for possession of a controlled substance with intent to deliver and unlawful possession of a firearm by a felon. It is clear from the record that, when Applicant signed the original plea agreement for community supervision, he knew that he would plead guilty to possession of a controlled substance with the intent to deliver and that the firearm charge and the drug-free-zone allegation would be dropped.

            Applicant’s community supervision was later revoked, and the revocation judgment erroneously listed the offense as unlawful possession of a firearm. The trial judge issued a judgment nunc pro tunc that changed the offense to possession of a controlled substance, but that judgment also erroneously included the drug-free-zone finding that had been dropped under the terms of the original plea agreement. The trial judge has recommended that relief be granted and that this Court delete the drug-free-zone finding, but applicant did not raise that issue in his writ application and thus has failed to show he is entitled to relief based on the allegation he raises in his application.

            I note that, while granting relief by deleting the drug-free-zone finding from the judgment would be inappropriate for this Court, applicant may request a second judgment nunc pro tunc to remove the erroneous drug-free-zone finding, and the trial court is authorized to grant such relief.

Filed: April 9, 2014

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