Glover, Ex Parte Clifford Michael

• Court: Court of Criminal Appeals of Texas
• Decided: December 7, 2005
• Docket: AP-75,299
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. AP-75,299 EX PARTE CLIFFORD MICHAEL GLOVER, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

FROM CAUSE NO. 08409-B IN THE 90^TH JUDICIAL DISTRICT COURT OF YOUNG 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 was convicted of the felony offense of possession of anhydrous ammonia in an unapproved container, and punishment was assessed at ten years' confinement. No direct appeal was taken.

Applicant contends, inter alia, that he was denied the opportunity to have his sentenced reduced in exchange for providing information about an unsolved murder case. After conviction, Applicant entered into an agreement with the District Attorney. In exchange for providing information to Palo Pinto County authorities about the unsolved murder, Applicant would be given the opportunity to file an unopposed motion for a new trial. Applicant would then plead guilty to a recommended sentence of five years. Applicant provided the information to Palo Pinto County authorities, and the District Attorney was prepared to fulfill the agreement. However, although defense counsel filed the motion for a new trial, no hearing was held on the motion until after the expiration of the 75-day period, and the trial court lost jurisdiction over the case.

Counsel has provided an affidavit in which he states that he was not informed that Applicant's part of the agreement had been completed to the satisfaction of the District Attorney until after the expiration of the period for holding a hearing. He further states that he did not want to risk having the motion for a new trial heard without such confirmation, because he believed that the State would re-indict Applicant for a greater offense.

The trial court entered findings of fact and conclusions of law recommending that Applicant be granted relief, in the form of enforcement of the agreement. We agree. Whether by deficient performance on the part of counsel, or simply by mis-communication between the parties to the agreement, Applicant was denied the opportunity to benefit from the agreement. The District Attorney has filed an affidavit stating that he is satisfied that Applicant cooperated to the satisfaction of the Palo Pinto authorities, that he believes that Applicant should receive the reduced sentence, and that he has been and continues to be ready to fulfill the agreement.

Habeas corpus relief is granted. Applicant's conviction and sentence in cause number 08409-B from the 90th District Court of Young County are vacated, and he is remanded to the custody of the Young County Sheriff to face the charges against him.

DO NOT PUBLISH

DELIVERED: December 7, 2005