Covarrubias, Ex Parte Eluterio

• Court: Court of Criminal Appeals of Texas
• Decided: February 27, 2008
• Docket: AP-75,853
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NOS. AP-75,853 and AP-75,854

EX PARTE ELUTERIO COVARRUBIAS, Applicant

ON APPLICATIONS FOR WRITS OF HABEAS CORPUS CAUSE NOS. CR-3273-02-F(1) AND CR-3030-02-F(1) IN THE 332ND DISTRICT COURT FROM HIDALGO COUNTY

Per curiam.

OPINION

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 these applications for writs of habeas corpus. Ex

parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of two counts

of aggravated robbery and sentenced to eight (8) years’ confinement on each count. He did not

appeal his convictions.

Applicant contends that his plea was involuntary because the plea agreement cannot be

enforced. Specifically, he alleges that he pleaded guilty upon the condition that these two concurrent

State sentences be ordered to run concurrently with federal Cause No. M-02-667-01. We remanded Covarrubias -- 2

the -01 application to the trial court for findings of fact and conclusions of law on November 14,

2007. The -02 application, which was filed while the -01 application was on remand, challenges a

conviction in a companion case and raises exactly the same claim.

In response to this Court’s remand order, the trial court forwarded a copy of the court

reporter’s notes from the plea hearing held on February 11, 2003. At the hearing, the prosecutor

explained that the condition that these two state sentences run concurrently with federal Cause No.

M- 02-667-01 was an affirmative part of the plea agreement. Also, the judgments reflect that these

sentences were ordered to run concurrently with the federal sentence. Applicant is entitled to relief.

Ex parte Huerta, 692 S.W.2d 681 (Tex. Crim. App. 1985).

Relief is granted. The judgments in Cause Nos. CR-3273-02-F(1) and CR-3030-02-F(1)

from the 332nd Judicial District Court of Hidalgo County are set aside, and applicant is remanded

to the custody of the Sheriff of Hidalgo County to answer the charges against him.

Copies of this opinion shall be sent to the Texas Department of Criminal Justice–Correctional

Institutions Division and Pardons and Paroles Division.

Delivered: February 27, 2008 Do Not Publish