Opinion
No. AP-75,726
Delivered: August 22, 2007. DO NOT PUBLISH.
On Application for a Writ of Habeas Corpus Cause No. 700538-C in the 339th District Court from Harris County.
Per curiam. Womack, J., filed a concurring opinion.
OPINION
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 possession of less than one gram of cocaine and sentenced to twenty-five (25) years' imprisonment. Her habeas application challenging the sentence was granted and the case was remanded to the trial court for a new punishment hearing. See Ex parte Franklin, No. AP-75,058 (Tex.Crim.App. December 15, 2004) (not designated for publication) (citing Mancuso v. State, 919 S.W.2d 86 (Tex.Crim.App. 1996). Following the new hearing, Applicant was sentenced to ten (10) years' imprisonment. Applicant contends that her ten year sentence is also illegal because it is outside the sentencing range for a state jail felony offense. The trial court recommends granting relief because Applicant's sentence is contrary to this Court's holding in State v. Mancuso, 919 S.W.2d 86 (Tex.Crim.App. 1996). However, that is not the reason Applicant's sentence is illegal. Applicant's punishment is outside the statutorily mandated sentencing range for a state jail felony offense committed on August 10, 1995. See, e.g., Ex parte Mabry, 137 S.W.3d 58, 62 (Tex.Crim.App. 2004). The applicable punishment range in Applicant's case is between 180 days and 2 years. See Tex. Penal Code § 12.35(a) (Vernon 1994). The trial court's underlying recommendation is supported by the record. Relief is granted. The sentence in Cause No. 700538 in the 339th Judicial District Court of Harris County is set aside, and Applicant is remanded to the custody of the Sheriff of Harris County for a new punishment hearing.I agree with the judge of the convicting court that the punishment in this case exceeded that which was permitted by the version of Penal Code section 12.35 that was in effect on August 10, 1995, and that State v. Mancuso, 919 S.W.2d 86 (Tex.Cr.App. 1996), is authority for granting the applicant a new punishment hearing. I concur in the judgment.
Penal Code Act of 1993, 73rd Leg., R.S., ch. 900, § 1.01, sec. 12.35, 1993 Tex. Gen. Laws 3586, 3603.