Carrales III, Ex Parte Joe Eloy

• Court: Court of Criminal Appeals of Texas
• Decided: August 22, 2007
• Docket: AP-75,727
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. AP-75,727 EX PARTE JOE ELOY CARRALES, III, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 495146-B IN THE 337TH DISTRICT COURT

FROM HARRIS 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 entered a plea of nolo contendere to the second degree felony offense of sexual assault of a child under seventeen years of age. The trial court deferred adjudication and assessed a term of eight years' community supervision. Pursuant to the State's motion to adjudicate guilt, the trial court adjudicated Applicant guilty and assessed a sentence of forty years' confinement. The judgment adjudicating guilt described the offense of conviction as a first degree felony. Applicant did not appeal his conviction.

Applicant contends that the sentence of forty years is illegal because it is outside the sentencing range for the second degree felony offense of sexual assault of a child under seventeen years of age.

The trial court has determined that Applicant's forty year sentence falls outside the prescribed punishment range and recommends granting a new punishment hearing in this case. Applicant is entitled to relief.

Relief is granted. Applicant is remanded to the sheriff of Harris County for a new assessment of punishment in Cause No. 495146 in the 337th Judicial District Court of Harris County.

Copies of this opinion shall be sent to the Texas Department of Criminal Justice-Correctional Institutions Division and Parole Division.

Delivered: August 22, 2007

Do Not Publish