Carson, Ex Parte Derek Randall

• Court: Court of Criminal Appeals of Texas
• Decided: October 5, 2005
• Docket: AP-75,255
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. AP-75,255 EX PARTE DEREK RANDALL CARSON, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

IN CAUSE NUMBER A-04-0104-S IN THE 51^ST DISTRICT COURT

OF TOM GREEN COUNTY

Per curiam.

O P I N I O N

This is a post-conviction application for a writ of habeas corpus forwarded to this Court pursuant to Tex. Code Crim. Proc. art. 11.07, § 3. Applicant was convicted of the felony offense of delivery of less than one gram of cocaine in a drug-free zone, and punishment was assessed at confinement for seven years. No direct appeal was taken.

Applicant contends, inter alia, that his plea was involuntary because he was not advised of the facts required to make a finding that the offense was committed in a drug free zone. The trial court entered findings of fact and conclusions of law recommending that relief be granted.

Applicant stipulated to allegations that the delivery was made "within 1000 feet of the premises owned by the City of San Angelo, to-wit: the Northside Recreation Center" on August 13, 2003. Health & Safety Code § 481.134 did not apply to deliveries within 1000 feet of a youth center unless the offense was committed after August 31, 2003, and there were no allegations or proof that this offense was committed within 1000 feet of a playground or of premises owned, rented, or leased by an institution of higher learning, or that it was within 300 feet of a youth center, swimming pool, or video arcade facility.

Relief is granted. The judgment in cause number A-04-0104-S from the 51^st Judicial District Court of Tom Green County is vacated, and Applicant is remanded to answer the charges against him.

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

DELIVERED: October 5, 2005

DO NOT PUBLISH