McKee, Ex Parte Bobby Ray ( 2011 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. AP-76,582

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EX PARTE BOBBY RAY McKEE, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 09-09-08532-CR(1) IN THE 359TH DISTRICT COURT FROM MONTGOMERY COUNTY

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   Per curiam.



O P I N I O N  

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. Penal Code §§ 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 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

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