Ex parte Yates

659 S.W.2d 840, 1983 Tex. Crim. App. LEXIS 1244

Opinions

OPINION

W.C. DAVIS, Judge.

This is a post conviction habeas corpus application filed pursuant to Art. 11.07, V.A.C.C.P.

On March 19, 1974 applicant pled guilty to the felony offense of possession of heroin. On September 9, 1974 applicant was sentenced to five years confinement. Execution of this sentence was stayed on September 13,1974 when applicant gave notice of appeal. On March 28, 1983 the trial court received, filed and entered the mandate affirming applicant’s conviction. On April 11, 1983 applicant was committed to the Texas Department of Corrections to serve that sentence.

Applicant contends that his confinement is illegal because it resulted from a resen-tencing under an ex post facto law.

Applicant was not “resentenced.” The execution of his sentence was stayed pending his appeal. Once the mandate issued affirming his conviction, applicant then simply began, when he was committed to the Texas Department of Corrections, serving his sentence that had been stayed. This does not amount to a resentencing.

Applicant also contends that he was “resentenced” under an ex post facto law, namely Art. 42.12, V.A.C.C.P., the Adult Probation, Parole, and Mandatory Supervision Law. Specifically applicant contends that the mandatory supervision portion of Art. 42.12 is an ex post facto law as applied to him. The Adult Probation, Parole, and Mandatory Supervision Law as amended in 1977 does not apply to applicant.

Section 7 of Acts 1977, 65th Leg., p. 934, ch. 347, provided:

“This Act applies only to inmates sentenced to the Texas Department of Corrections for an offense committed on or after the effective date of this Act. Inmates sentenced for an offense committed prior to the effective date of this Act are governed by the law existing before the effective date, which is continued in effect for this purpose. For the purpose of this Act, an offense is committed on or after the effective date if any element of the offense occurs on or after the effective date.”

Applicant should be serving his sentence under the guidelines of the Adult Probation and Parole law in effect at the time of the offense. There is no evidence that he is not being held under the provisions of the prior law. The relief requested is denied.