Garcia, Ex Parte Alfredo

• Court: Court of Criminal Appeals of Texas
• Decided: June 29, 2005
• Docket: AP-75,211
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. AP-75,211 EX PARTE ALFREDO GARCIA, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

FROM CAUSE NO. 78357-120-1 IN THE 120^TH JUDICIAL DISTRICT COURT,

EL PASO 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, et seq.. Applicant pleaded guilty to the state jail felony offense of burglary of a building, and punishment was assessed at two year, probated for five years. No direct appeal was taken. Applicant's probation was later revoked, along with another probated sentence from a different conviction, and a deferred-adjudication probation from a third conviction. Applicant pleaded true to the allegations in the motion to revoke probation/ adjudicate guilt in all three causes, in exchange for the State's recommendation of three 8-year concurrent sentences.

On June 12, 2003 this Court received Applicant's post-conviction writ of habeas corpus, requesting additional time credits against his sentence for pre-trial jail time. This Court remanded to the trial court for, inter alia, an explanation of why Applicant was given an 8-year sentence for a state jail felony offense. The trial court entered findings of fact and conclusions of law recommending that Applicant's conviction and sentence in this cause be vacated. While we agree that the sentence is illegal, Applicant did not challenge the voluntariness of his plea in this cause. Therefore, only the sentence need be vacated. Habeas corpus relief is granted. The sentence in cause number 78357-120-1 from the 120th District Court of El Paso County is vacated, and Applicant is remanded to the custody of the trial court for a new sentencing hearing.

DO NOT PUBLISH

DELIVERED: June 29, 2005