Arterberry, Ex Parte Marcellus Temel

• Court: Court of Criminal Appeals of Texas
• Decided: April 6, 2005
• Docket: AP-75,130
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. AP-75,130 EX PARTE MARCELLUS TEMEL ARTERBERRY, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 31,549 IN THE 240^th JUDICIAL DISTRICT COURT

FORT BEND COUNTY

Per Curiam.

O P I N I O N

This is a post-conviction application for a writ of habeas corpus filed pursuant to tex. code crim. proc. art. 11.07. Applicant was convicted of aggravated robbery and his punishment was assessed at confinement for thirty years. No appeal was taken from this conviction.

Applicant contends that his plea was rendered involuntary because the plea agreement cannot be followed, and counsel was ineffective for advising him to accept this plea agreement. Pursuant to a remand order, the trial court has entered findings of fact verifying that applicant pled guilty pursuant to an agreement that this sentence would run concurrently with a federal sentence. The trial court has also entered findings of fact that Applicant's federal judgment requires that sentence to commence after this one expires, and the plea agreement cannot be followed. Applicant is entitled to relief. Ex parte Moody, 991 S.W.2d 856 (Tex.Cr.App. 1999).

Relief is granted. The judgment in cause number 31,549 in the 240th Judicial District Court of Fort Bend County is set aside and Applicant remanded to the trial court to answer the charge against him.

Copies of this opinion shall be sent to the Texas Department of Criminal Justice, correctional institutions and parole divisions.

DELIVERED: April 6, 2005

DO NOT PUBLISH