IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NOS. WR-90,442-01 & WR-90,442-02

EX PARTE DEREK LEE CASEY, JR., Applicant

ON APPLICATIONS FOR WRITS OF HABEAS CORPUS

CAUSE NOS. 12110-D & 12111-D IN THE 350TH DISTRICT COURT

FROM TAYLOR COUNTY

Per curiam. KEEL, J., filed a concurring opinion, joined by HERVEY, RICHARDSON,

and WALKER, JJ. KELLER, P.J., filed a dissenting opinion, joined by YEARY, SLAUGHTER,

and MCCLURE, JJ. YEARY, J., filed a dissenting opinion, joined by KELLER, P.J.,

SLAUGHTER, and MCCLURE, JJ.

O P I N I O N

Applicant was convicted of two charges of aggravated assault of a public servant and

sentenced to twenty-five years’ imprisonment in each case. Upon Applicant’s motion to withdraw,

the Eleventh Court of Appeals dismissed his appeal. Casey v. State, No. 11-17-00138-CR (Tex.

App.—Eastland Dec. 14, 2017) (not designated for publication). Applicant filed these applications

for writs of habeas corpus in the county of conviction, and the district clerk forwarded them to this

Court. See TEX. CODE CRIM. PROC. art. 11.07.

Applicant contends, among other things, that his plea was involuntary because the State
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withheld material information from the defense, specifically that the officers did not identify

themselves. The trial court found that the alleged “failure to identify” was either untrue or unknown

to the prosecutor and that the Brady violation appears to be based on speculation by Applicant.

Based on the record, we disagree.

The police officers testified at the punishment hearing that they did not verbally identify

themselves as police officers before Applicant shot at them. Applicant’s trial attorney, John Young,

testified by affidavit at the habeas stage that the pretrial discovery materials indicated that the police

did identify themselves before Applicant shot at them. Young told Applicant that the file showed that

the officers “repeatedly” warned him that they were officers. Applicant’s appellate attorney, Landon

Thompson, testified by affidavit that the pretrial discovery materials did not reveal the “failure to

identify” and that Applicant would not have pleaded guilty if that evidence had been disclosed before

his plea. Nothing suggests that Applicant knew of the “failure to identify” evidence until the

punishment hearing.

Favorable evidence was withheld from Applicant, and if it had been disclosed, he would not

have pleaded guilty.The record thussubstantiatesApplicant’sBrady claim. Other considerations, like

the prosecution’s possible ignorance ofthe “failure to identify” evidence, are irrelevant to Applicant’s

involuntary-plea claim under Brady. See Harm v. State, 183 S.W.3d 403, 406 (Tex. Crim. App.

2006).

Relief is granted. Brady v. United States, 397 U.S. 742 (1970). The judgments in cause

numbers 12110-D & 12111-D in the District Court of Taylor County are set aside, and Applicant is

remanded to the custody of the Sheriff of Taylor County to answer the charges as set out in the

indictment. The trial court shall issue any necessary bench warrant within ten days from the date of
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this Court’s mandate.

Copies ofthis opinion shall be sent to the Texas Department ofCriminalJustice–Correctional

Institutions Division and the Board of Pardons and Paroles.

Delivered: January 27, 2021

Do not publish