Opinion
No. AP-75,925
Delivered: June 4, 2008. DO NOT PUBLISH
On Application For A Writ of Habeas Corpus, Cause No. 2006-1221-C2, In the 54th District Court, From Mclennan County.
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 driving while intoxicated and sentenced to eight years' imprisonment. He did not appeal his conviction. Applicant contends, inter alia, that his plea was rendered involuntary due to the ineffective assistance of his counsel. Specifically, Applicant contends that counsel improperly advised him to plead guilty in exchange for an eight year sentence when one of his prior driving while intoxicated offenses listed for purposes of elevating the punishment range was not a final conviction as defined under Section 49.09(d) of the Texas Penal Code. The trial court has determined, based upon the record, that Applicant did plead guilty in exchange for an eight year sentence when one of his prior driving while intoxicated offenses listed for purposes of elevating the punishment range was not a final conviction. The record further reflects that there were no other prior driving while intoxicated offenses available which were not listed on the indictment. Applicant is entitled to relief. Ex parte Huerta, 692 S.W.2d 681 (Tex.Crim.App. 1985). Relief is granted. The judgment in Cause No. 2006-1221-C2 in the 54th Judicial District Court of McLennan County is set aside, and Applicant is remanded to the custody of the sheriff of McLennan County to answer the charges as set out in the indictment. Copies of this opinion shall be sent to the Texas Department of Criminal Justice-Correctional Institutions Division and Parole Division.
The Applicant's plea agreement reads as follows:
8 YEARS IN THE TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION, AND A FILE OF $0.00, THE STATENEITHER OPPOSES NOR RECOMMENDS THAT THE COURTGRANT PROBATION IN THIS MATTER.