Butler, Cedric Demichael

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-77,739-03
EX PARTE CEDRIC DEMICHAEL BUTLER, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. W90-01404-T(B) IN THE 283RD DISTRICT COURT
FROM DALLAS COUNTY
Per curiam.
ORDER
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 originally charged with
aggravated sexual assault of a child. He pleaded guilty to the lesser offense of sexual assault of a
child in exchange for two years’ deferred adjudication community supervision. His guilt was later
adjudicated, and he was sentenced to ten years’ imprisonment, but was granted “shock” probation.
His probation was eventually revoked, and he was sentenced to eight years’ imprisonment. The Fifth
Court of Appeals dismissed his appeal for want of jurisdiction. Butler v. State, No. 05-92-01177-CR
(Tex. App. — Dallas, October 29, 1996).
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Applicant contends that his plea was involuntary because the State failed to disclose
favorable, material evidence to the defense. Brady v. Maryland, 373 U.S. 83 (U.S. 1963); Ex parte
Kimes, 872 S.W.2d 700, 702-703 (Tex. Crim. App. 1993). Applicant alleges that during an
investigation relating to a motion for post-conviction D.N.A. testing in 2012, it was discovered that
a supplemental police report had not been disclosed to the defense at the time Applicant entered his
original plea. The supplemental police report contains favorable evidence which, according to
Applicant, was material in that had it been timely disclosed, would likely have caused Applicant to
plead “not guilty” to the charges.
Applicant has alleged facts that, if true, might entitle him to relief. In these circumstances,
additional facts are needed. As we held in Ex parte Rodriguez, 334 S.W.2d 294, 294 (Tex. Crim.
App. 1960), the trial court is the appropriate forum for findings of fact. The trial court may use any
means set out in TEX . CODE CRIM . PROC. art. 11.07, § 3(d). In the appropriate case, the trial court
may rely on its personal recollection. Id.
If the trial court elects to hold a hearing, it shall determine whether Applicant is indigent.
If Applicant is indigent and wishes to be represented by counsel, the trial court shall appoint an
attorney to represent Applicant at the hearing. TEX . CODE CRIM . PROC. art. 26.04.
The trial court shall supplement the habeas record with copies of all evidence, including
police reports and statements, that was provided to the defense before Applicant’s plea was entered.
The trial court shall make findings of fact as to when and how the supplemental report dated
December 7, 1989, was first provided to Applicant. The trial court shall make findings of fact and
conclusions of law as to whether the supplemental police report constitutes favorable, material
evidence. The trial court shall make findings of fact and conclusions of law as to whether there is
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a reasonable probability that had the evidence been disclosed, the outcome of the proceedings would
have been different, in that Applicant would not have pleaded guilty to the charges. The trial court
shall also make any other findings of fact and conclusions of law that it deems relevant and
appropriate to the disposition of Applicant’s claim for habeas corpus relief.
This application will be held in abeyance until the trial court has resolved the fact issues. The
issues shall be resolved within 90 days of this order. A supplemental transcript containing all
affidavits and interrogatories or the transcription of the court reporter’s notes from any hearing or
deposition, along with the trial court’s supplemental findings of fact and conclusions of law, shall
be forwarded to this Court within 120 days of the date of this order. Any extensions of time shall
be obtained from this Court.
Filed: September 16, 2015
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