Bennett, Ex Parte Coody Robert

• Court: Court of Criminal Appeals of Texas
• Decided: April 28, 2010
• Docket: AP-76,330
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

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NO. AP-76,330

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EX PARTE COODY ROBERT BENNETT, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 1169125-A IN THE 180^TH DISTRICT COURT

FROM HARRIS COUNTY

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           Per curiam.

O P I N I O N

           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 and was convicted of driving while intoxicated and sentenced to two years’ imprisonment. He did not appeal his conviction.

           Applicant contends that his plea was involuntary because the intoxilyzer instrument used to determine Applicant’s blood alcohol level was not properly calibrated. He states that he pleaded guilty due to the results which were shown to him prior to his plea and those results have now been shown to be unreliable.

           The State concedes that the technical supervisor who was tasked with calibrating the instrument used in Applicant’s case lied and did not perform the necessary tests. The State and the trial court both recommend granting relief. We agree. 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. 1169125 in the 180tn Judicial District Court of Harris County is set aside, and Applicant is remanded to the custody of the sheriff of Harris 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 Pardons and Paroles Division.

Delivered: April 28, 2010

Do Not Publish