Brunson, Ex Parte Mark Allen

• Court: Court of Criminal Appeals of Texas
• Decided: April 21, 2004
• Docket: AP-74,937
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. 74,937

EX PARTE MARK ALLEN BRUNSON, Applicant

ON APPLICATION FOR WRIT OF HABEAS CORPUS

FROM TARRANT COUNTY

Per Curiam.

OPINION

This is an application for a writ of habeas corpus which was transmitted to this Court by the clerk of the trial court pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure. Ex Parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Pursuant to a plea agreement with the State, Applicant was charged by information with the state jail felony offense of theft of a motor vehicle, the value of which was $1,500 or more, but less than $20,000. Additionally, the information contained an enhancement paragraph alleging that Applicant had previously been finally convicted of a felony offense that was listed in Article 42.12, Section 3g(a)(1) of the Texas Code of Criminal Procedure or for which the judgment contained a deadly weapon finding under Article 12.42, Section 3g(a)(2) of the Texas Code of Criminal Procedure. Pursuant to a plea agreement with the State that provided that the State would recommend a sentence of ten years imprisonment in exchange for Applicant's plea of guilty and plea of true to the allegation contained in the enhancement paragraph, Applicant was convicted of theft of a vehicle, the value of which was $1,500 or more, but less than $20,000. Following the State's recommendation on punishment, the court then sentenced him to ten years imprisonment. Applicant did not perfect an appeal.

Applicant filed the instant application alleging, among other things, that his sentence is illegal because, due to the ineffective assistance of counsel, it was improperly enhanced under Section 12.35(c)(2) of the Texas Penal Code. Applicant claims that his prior conviction for robbery by threats was not a conviction listed in Article 42.12, Section 3g(a)(1) of the Texas Code of Criminal Procedure and that the judgment for that conviction did not contain an affirmative deadly weapon finding under Section 42.12, Section 3g(a)(2) of the Texas Code of Criminal Procedure.

Adopting the State's proposed findings of facts and conclusions of law, the trial court has determined that Applicant is entitled to habeas corpus relief. In doing so, the trial court stated that "Applicant's state jail felony sentence was improperly enhanced by a non-aggravated, non-3g offense without an affirmative finding of a deadly weapon." After a review of the record, we agree with the trial court's determination and find that Applicant is entitled to habeas corpus relief due to the ineffective assistance of trial counsel. State v. Mancuso, 919 S.W.2d 86, 88 (Tex. Crim. App. 1996) ("under the plain language of § 12.35, in all non-subsection (c) situations the defendant shall be punished under subsections (a) and (b)."); Ex parte Hodges, 921 S.W.2d 239, 240 (Tex. Crim. App. 1996). The judgment and sentence in cause number 069919W from the 213th Judicial District Court of Tarrant County, Texas, is vacated and Applicant is remanded to the custody of the Sheriff of Tarrant County to answer to the indictment. Ex parte Beck, 922 S.W.2d 181, 182 (Tex. Crim. App. 1996).

A copy of this opinion shall be sent to the Department of Criminal Justice, Institutional Division.

DO NOT PUBLISH

DELIVERED: April 21, 2004