Whatley, Jerry Don ( 2020 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-87,451-01
EX PARTE JERRY DON WHATLEY, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. CR05-00442A IN THE 294TH DISTRICT COURT
FROM VAN ZANDT COUNTY
Per curiam. NEWELL, KEEL, and WALKER , JJ., dissent.
ORDER
Applicant was convicted of aggravated sexual assault and sentenced to fifty years’
imprisonment. The Sixth Court of Appeals found the evidence insufficient and reversed the
judgment of the trial court. Whatley v. State, 415 S.W.3d 530 (Tex. App.—Texarkana 2013). This
Court reversed the judgment of the court of appeals and remanded the case to the court of appeals.
Whatley v. State, 445 S.W.3d 159 (Tex. Crim. App. 2014). The court of appeals deleted an order
that Applicant pay $3,249.00 in attorney fees and affirmed the judgment of the trial court. Whatley
v. State, No. 06-12-00117-CR (Tex. App.—Texarkana Dec. 30, 2014) (not designated for
publication). 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.
2
Applicant contends, among other things, that the State failed to disclose a recorded interview
between his wife and police officers and that trial counsel failed to timely object to the State’s failure
to disclose this evidence before trial. We remanded this application and ordered the trial court to
determine whether the State failed to disclose this evidence and whether it was favorable and
material. On remand, the trial court held an evidentiary hearing, made findings of fact, and
concluded that trial counsel was ineffective and that the State failed to disclose favorable and
material evidence. See Strickland v. Washington, 466 U.S. 668 (1984); Brady v. Maryland, 373 U.S.
83 (1963). The trial court recommended that we grant Applicant a new trial.
We disagree and conclude that Applicant has not established that the withheld evidence was
material and that he was prejudiced by counsel’s deficient conduct. Relief is denied.
Filed: April 15, 2020
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