McKee, Ex Parte Bobby Ray ( 2011 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. AP-76,582
EX PARTE BOBBY RAY McKEE, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 09-09-08532-CR(1) IN THE 359TH DISTRICT COURT
FROM MONTGOMERY COUNTY
Per curiam.
OPINION
This is an application for a writ of habeas corpus under article 11.07 of the Texas
Code of Criminal Procedure. Pursuant to an agreement, applicant pled guilty to felony
driving while intoxicated and was sentenced to five years’ imprisonment. See TEX. P ENAL
C ODE §§ 49.04, 49.09. Applicant now contends, inter alia, that his plea was involuntary.
He alleges that defense counsel misinformed him regarding whether a deadly weapon finding
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would be part of the judgment under the plea agreement, that he was unaware that it would
be part of the judgment, and that he would not have pled guilty if he had known that the
judgment would contain such a finding. In an affidavit, defense counsel explained that he
was under the impression that the deadly weapon finding would be dropped, and, as a
consequence, he did not read over the plea papers. Finding counsel’s affidavit to be credible,
the trial court has recommended that relief be granted. We conclude that the trial court’s
findings are supported by the record, and we hold that applicant’s plea was involuntary, due
to ineffective assistance of counsel.
Relief is granted. Applicant is remanded to the custody of the Sheriff of Montgomery
County, Texas, to answer to charges contained in the indictment. The trial court shall issue
any necessary bench warrant within 10 days after the mandate of this Court issues.
Delivered: June 22, 2011
Do Not Publish