Westerman, John Dewayne ( 2019 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-89,032-01
EX PARTE JOHN DEWAYNE WESTERMAN, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 27595A IN THE 249TH DISTRICT COURT
FROM JOHNSON COUNTY
Per curiam. WALKER , J., filed a concurring opinion in which RICHARDSON , J., and
NEWELL, J., joined. YEARY , J., filed a dissenting opinion in which SLAUGHTER , J., joined, and
KELLER , P.J., joined as to parts I–III. KEASLER , J., dissented.
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 charged with this aggravated
robbery in 1990, which was a first-degree felony. The indictment alleged a prior 1984 felony
conviction for burglary of a building, then a second-degree felony, which was to enhance the
punishment level to 15 to 99 years of life in prison. Applicant pled guilty under a plea agreement for
a 30-year sentence.
Applicant claims that the repeat-felon enhancement was improper because he was placed on
2
probation for the prior burglary offense and that probation was not revoked. Ex parte Langley, 833
S.W.2d 141 (Tex. Crim. App. 1992). He argues that his guilty plea was therefore involuntary. On
remand, the trial court has entered findings indicating that the repeat-felon enhancement was
improper, that the State could not have relied upon another prior conviction to support the repeat-
felon enhancement, that Applicant would have rejected the 30-year plea agreement if he had known
that no prior felony convictions were available for enhancement purposes, and that “Applicant’s
guilty plea was not entered into freely, voluntarily and/or knowingly.” Hill v. Lockhart, 474 U.S.
52 (1985); Ex parte Rich, 194 S.W.3d 508 (Tex. Crim. App. 2006). The trial court further finds that
Applicant’s 28-year delay in raising the involuntary plea claim has not materially prejudiced the
State’s ability to prosecute him, so laches should not be applied. Ex Parte Perez, 398 S.W.3d 206
(Tex. Crim. App. 2013). The trial court’s findings are supported by the habeas record.
Relief is granted. The judgment in Cause No. 27595 in the 249th District Court of Johnson
County is set aside, and Applicant is remanded to the custody of the Sheriff of Johnson 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: April 10, 2019
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