No. AP-75,193 75,194
Delivered: November 16, 2005. DO NOT PUBLISH.
On Application for a Writ of Habeas Corpus from Dallas County.
PRICE, J., delivered the opinion of a unanimous Court.
PRICE, J.
The applicant filed an application for writ of habeas corpus, claiming that the Texas Department of Criminal Justice, Correctional Institutions Division (TDCJ-CID) has erroneously labeled him ineligible for mandatory supervision release on his convictions for unauthorized use of a vehicle. We filed and set the case to determine whether TDCJ-CID was incorrect in doing so in light of the applicant's prior conviction for burglary of a habitation. We hold that, because the applicant's prior offense was not a first-degree felony at the time the applicant committed the instant offenses, he is eligible for mandatory supervision release.
I. Facts and Procedural History
The applicant pled guilty, pursuant to a plea agreement with the State, to two charges of unauthorized use of a vehicle and pled true to two enhancement allegations. The trial court sentenced the applicant to two concurrent five-year terms of imprisonment in TDCJ-CID and a $1,500 fine. The applicant did not appeal his convictions or sentences. The applicant filed an application for writ of habeas corpus, claiming that TDCJ-CID is improperly denying him mandatory supervision release. The record before us includes an affidavit submitted by TDCJ-CID. In the affidavit, the affiant explains that the applicant received notice that the Board of Pardons and Paroles (Parole Board) voted to release him to mandatory supervision on May 11, 2004. After a records search, TDCJ-CID determined that the applicant was not eligible for mandatory supervision release because he had a prior conviction for first-degree burglary of a habitation. TDCJ-CID changed the applicant's status to non-eligible for mandatory supervision and informed the Parole Board. The Parole Board voted to withdraw its prior vote. The applicant was provided no hearing or opportunity to respond before the Board voted the second time. When the applicant committed the current or holding offenses in 2002, Government Code Section 508.149 denied mandatory supervision release eligibility to inmates with a current or prior conviction for one of the enumerated offenses. The enumerated list includes a first-degree felony under Penal Code Section 30.02 (Burglary). The applicant was convicted of burglary of a habitation with the intent to commit theft in 1977. At that time, the offense was a first-degree felony. Under the Penal Code at the time the applicant committed the holding offenses, burglary of a habitation with intent to commit theft was a second-degree felony. II. Law and Analysis
We have said that an inmate's eligibility for release on mandatory supervision or parole is determined by the statute in effect when the holding offense was committed. More specifically, we recently held in Ex parte Thompson that we should look at the essential characteristics of the prior conviction and not just the title. These characteristics include the criminal conduct, the mental state, and accompanying circumstances of the offense. In that case, we held that, although a first-degree burglary is on the list of enumerated offenses that makes an inmate ineligible for mandatory supervision release, the enumerated offenses do not include burglary of a habitation with the intent to commit theft. In this case, the applicant has a prior conviction for burglary of a habitation with intent to commit theft. Although this offense was a first-degree felony when the applicant committed the offense, this conduct was not included in the list of enumerated offenses that make an inmate ineligible under Government Code Section 508.149 when he committed the holding offense. The applicant is entitled to relief. TDCJ-CID shall treat the applicant as an inmate eligible for release to mandatory supervision. Copies of this opinion shall be sent to TDCJ-CID and the Board of Pardons and Paroles.