EX PARTE JERAMY KENNEDY, Applicant (Other)

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS

NO. WR-71,054-02
EX PARTE JERAMY KENNEDY, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 29141 IN THE 3RD DISTRICT COURT
FROM ANDERSON COUNTY
Per curiam.O R D E R

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 writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of murder and sentenced to fifty years' imprisonment. He did not appeal his conviction.

Applicant contends, inter alia, that his plea was involuntary because he was unaware of exculpatory evidence at the time of the plea, and that the newly available evidence of an affidavit shows that he is actually innocent. Applicant filed a prior Article 11.07 application attacking his conviction in the trial court on October 9, 2008. The writ application was denied without written order on December 17, 2008. Ex parte Kennedy, No. WR-71,054-01 (Tex. Crim. App. Dec. 17, 2008). Applicant alleges that he was refused copies of his attorneys' file until after he filed his first writ application, and that he was never informed of statements in the file suggesting that "Monster" Swindell had taken responsibility for the crime. He also alleges that an affidavit reporting that "Monster" Marlin Swindell caused the complainant's death is newly discovered evidence. Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 668 (1984); Ex parte Elizondo, 947 S.W.2d 202, 208 (Tex. Crim. App. 1996); Ex parte Lemke, 13 S.W.3d 791 (Tex. Crim. App. 2000).

In these circumstances, additional facts are needed. As we held in Ex parte Rodriguez, 334 S.W.2d 294, 294 (Tex. Crim. App. 1997), the trial court is the appropriate forum for findings of fact. The trial court shall obtain a response from Applicant's trial counsel addressing Applicant's claim of ineffective assistance of counsel resulting in an involuntary plea. 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 make findings of fact and conclusions of law in regard to whether Applicant's claims of an involuntary plea and actual innocence are based on newly discovered evidence. Ex parte Brown, 205 S.W.3d 538, 545 (Tex. Crim. App. 2006). The trial court shall make specific findings as to whether Applicant knew at the time of his plea of statements that "Monster" caused the death of the complainant. The trial court shall also make specific findings as to whether counsel refused Applicant's requests for copies of his file and when the file was made available to him. The trial court shall also make specific findings of fact as to whether the affidavit of Jesse Richey is newly discovered evidence and whether it is credible. The trial court shall make findings of fact and conclusions of law addressing Applicant's claims that his plea was involuntary and that he is actually innocent. 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 claims 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. If any continuances are granted, a copy of the order granting the continuance shall be sent to this Court. 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 returned to this Court within 120 days of the date of this order. Any extensions of time shall be obtained from this Court.

 

Filed: January 11, 2012

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