Opinion
No. 74,811
Delivered: October 22, 2003. DO NOT PUBLISH.
On Application for a Writ of Habeas Corpus from Brazoria County.
OPINION
This is a post-conviction application for writ of habeas corpus filed pursuant to the provisions of Article 11.07, V.A.C.C.P. Applicant pleaded guilty to felony driving while intoxicated and was sentenced to six years in prison. No direct appeal was taken from this conviction. Applicant contends that TDCJ has improperly denied him release to mandatory supervision. The record indicates that the Applicant was previously charged with and convicted of the second degree felony offense of burglary of a habitation, in cause number 32,387, which was enhanced, for punishment purposes, to a first degree felony; however, the judgment erroneously reflects that the Applicant's offense was a first degree felony. Further, based on this mislabeling of Applicant's prior offense as a first degree felony, the Applicant has been determined not to be eligible for release on mandatory supervision in the instant offense. V.T.C.A. Gov't Code § 508.149(a)(13). The Applicant is entitled to relief. The judgment, in cause number 32,387, should have reflected that the Applicant was actually convicted of a second degree felony. Further, because this prior second degree felony offense of burglary of a habitation is eligible for mandatory supervision release, as it is not listed among the offenses ineligible for such release under V.T.C.A. Gov't Code § 508.149, the Applicant is eligible for mandatory supervision on the instant offense. Consequently, the Texas Board of Pardons and Paroles shall review Applicant for release to mandatory supervision after providing him with adequate timely notice of the date upon which that review is to take place so that he can supply any information that he might wish to provide prior to the actual date of consideration. Copies of this opinion shall be sent to the Texas Department of Criminal Justice, Institutional Division, Paroles Division, and the Board of Pardons and Paroles.
The Applicant is not presently challenging this burglary of a habitation conviction in the instant application, but given that the error in the judgment in that case is clearly a mistake, the proper mode of correction is by nunc pro tunc motion and order to be filed with the court of conviction. See Ex parte Pena, 71 S.W.3d 336, 336-37 (Tex.Crim.App. 2002).