Opinion
No. AP-76,280
Delivered: January 27, 2010. DO NOT PUBLISH.
On Application for a Writ Of Habeas Corpus Cause No. F43449A in the 249th Judicial District Court from Johnson 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 pleaded guilty to one count of placement of a serial number with intent to change identity, and two counts of theft, and was sentenced to eight years' imprisonment. He did not appeal his conviction. Applicant contends that his plea was involuntary because the plea agreement cannot be followed. We remanded this application to the trial court for findings of fact and conclusions of law. Trial counsel filed an affidavit with the trial court. Based on that affidavit, the trial court determined that Applicant pleaded guilty pursuant to an agreement that this sentence would run concurrently with a Missouri parole revocation sentence. However, Applicant's Missouri parole has not yet been revoked, and he is currently serving his sentence in TDCJ with a hold from Missouri in effect. When Applicant is released from custody in Texas, it will be within the discretion of the Missouri Parole Division whether or not to credit Applicant's Texas prison time against his Missouri sentence. Applicant is entitled to relief. Ex parte Chandler, 684 S.W.2d 700, 701 (Tex. Crim. App. 1985). Because the plea agreement in this case is unenforceable, Applicant is entitled to withdraw his plea. Relief is granted. The judgment in Cause No. F43449A in the 249th Judicial District Court of Johnson County is set aside, and Applicant is remanded to the custody of the Sheriff of Johnson County to answer the charge against him. Copies of this opinion shall be sent to the Texas Department of Criminal Justice-Correctional Institutions Division and Pardons and Paroles Division.