Caballero, Ex Parte Victor Ernesto

• Court: Court of Criminal Appeals of Texas
• Decided: September 12, 2007
• Docket: AP-75,763
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. AP-75,763 EX PARTE VICTOR ERNESTO CABALLERO, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. W02-49134-I(A) IN CRIMINAL DISTRICT COURT NO. 2

FROM DALLAS COUNTY

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 was convicted of aggravated assault and sentenced to twenty (20) years' confinement. The Fifth Court of Appeals affirmed his conviction. No. 05-03-00460-CR (Tex. App. - Dallas, 2003, no pet.)

Applicant contends inter alia that his trial counsel rendered ineffective assistance because he failed to inform him of a plea bargain offer of five years' confinement. In support of his claim, Applicant attached a copy of a plea bargain form which shows he was offered five years' confinement in this case.

This Court remanded this application to the trial court for findings of fact and conclusion of law on April 4, 2007. In response to our remand order, the trial court has entered supplemental findings of fact and conclusions of law recommending that relief be granted. The trial court's findings are supported by the record. While this Court is not bound by the findings of the habeas court, we should follow them when they are supported by the record. See Ex parte Minott, 972 S.W.2d 760, 761 (Tex. Crim. App. 1998).

Relief is granted. This Court has held that the appropriate remedy to the injury suffered where defense counsel failed to convey a plea bargain offer is to reinstate the offer. Lemke at 797-798. This cause is remanded to the trial court with the order that the trial court withdraw Applicant's plea, require the State to reinstate its five year plea offer, and allow Applicant to re-plead to the indictment in this cause.

Delivered: September 12, 2007

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