Hernandez, Ex Parte Frank Gonzales

• Court: Court of Criminal Appeals of Texas
• Decided: June 20, 2007
• Docket: AP-75,710
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. AP-75,710 EX PARTE FRANK GONZALES HERNANDEZ, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 4024-A IN THE 31^ST JUDICIAL DISTRICT COURT

FROM WHEELER COUNTY

Per curiam. Keller, P.J., dissenting.

O P I N I O N

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 this application for writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of possession of a controlled substance and sentenced to ninety-nine years' imprisonment. The Seventh Court of Appeals affirmed his conviction. Hernandez v. State, No. 07-04-0034-CR (Tex. App. - Amarillo, November 2, 2004, pet. ref'd).

Applicant contends, inter alia, that his trial counsel rendered ineffective assistance because counsel advised Applicant incorrectly as to the applicable sentencing range for the offense charged. As a result of counsel's incorrect advice, Applicant rejected the State's offer of ten years' imprisonment, and went to trial. Applicant contends that if he had known that the State's ten-year offer was the minimum sentence applicable to the offense charged, he would have accepted the offer rather than going to trial on the charge.

The trial court finds that there is no evidence in the habeas record to support Applicant's claims. However, the record shows that counsel informed the jurors during voir dire that the applicable sentencing range for the offense was five to 99 years' or life imprisonment, and that five to ten years' probation was a possibility. In fact, the minimum sentence for the offense charged was ten years. The habeas record also confirms that the State made an offer of ten years' imprisonment, which Applicant did not accept. We find, therefore, that counsel's incorrect advice to Applicant about the applicable punishment range of punishment constituted deficient performance, and that but for counsel's incorrect advice, Applicant would have accepted the State's offer of ten years' imprisonment. Applicant received ineffective assistance of trial counsel and is entitled to a new trial.

The judgment in Cause No. 4024 from the 31^st Judicial District Court of Wheeler County is set aside. Applicant is remanded to the custody of the Wheeler County Sheriff to answer the charge against him.

Copies of this opinion shall be sent to the Texas Department of Criminal Justice - Correctional Institutions Division and Parole Division.

Delivered: June 20, 2007

Do Not Publish