Opinion
No. AP-75,276
Filed October 26, 2005. DO NOT PUBLISH.
Application for Writ of Habeas Corpus from Case W03-35285-W of the 363rd Judicial District Court of Dallas County.
The applicant pleaded nolo contendere to a charge of driving while intoxicated, a felony offense of the third degree. The trial court said it would assess a punishment of three years in prison or, if the applicant preferred, a sentence of ten years in prison for which the applicant could request "shock probation." (See Code of Criminal Procedure article 42.12, section 6, which extends the trial court's jurisdiction to grant probation for 180 days from the date the execution of the sentence actually begins.) The court said that if it granted shock probation after 180 days of imprisonment, it would impose a condition of confinement in a substance-abuse facility for another 180 days. The applicant preferred the ten-year sentence with the possibility of probation, and the court sentenced him accordingly. Defense counsel neither withdrew from representing the applicant nor filed a motion for probation, and the 180-day period of extended jurisdiction expired. The applicant claims, and the judge of the convicting court has found, that he was denied the effective assistance of counsel. We agree. The district judge has recommended that this court give the applicant relief in the form of an out-of-time hearing in the district court for a decision whether to suspend the execution of the rest of the ten-year sentence and to place the applicant on probation. We think that other relief is required. The value of the sentencing options that the district court gave the applicant may have changed significantly now that he has served more than nine months of his sentence. The applicant's choice of the ten-year sentence was based, at least in part, on the reasonable expectation that he would be considered for probation no later than 180 days after the execution of his sentence actually began. The relief must include being freed from the consequences of the decision to accept the ten-year sentence. Therefore this court grants habeas corpus relief from the ten-year-imprisonment portion of the judgment and sentence that were entered by the convicting court. The applicant is remanded to the custody of the Sheriff of Dallas County so that the district court may conduct a new punishment hearing and other proceedings consistent with this opinion.