             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.
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        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
Do not publish
