Hoffpauir, Ex Parte Kenneth Author

• Court: Court of Criminal Appeals of Texas
• Decided: April 25, 2007
• Docket: AP-75,671
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. AP-75,671 EX PARTE KENNETH AUTHOR HOFFPAUIR, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 85281 IN THE CRIMINAL DISTRICT COURT

FROM JEFFERSON COUNTY

Per curiam.

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 pleaded guilty to indecency with a child, and was sentenced to thirty years' imprisonment. Applicant's direct appeal was dismissed for want of jurisdiction. Hoffpauir v. State, No. 09-03-050-CR (Tex. App. - Beaumont, March 6, 2003, no pet.)

Applicant contends that his thirty-year sentence is illegal, because the offense to which he pleaded was a second degree felony. We remanded this application to the trial court for findings of fact and conclusions of law.

The trial court obtained affidavits from the prosecutor, and supplemented the record with a transcript of the plea hearing. Based on these documents, the trial court determined that Applicant pleaded guilty to indecency with a child, a third degree felony, with punishment enhanced to second degree felony level by one prior felony conviction. The State waived all additional enhancement allegations. Applicant is entitled to relief. Ex parte Huerta, 692 S.W.2d 681 (Tex. Crim. App. 1985).

Relief is granted. The judgment in Cause No. 85281 in the Criminal District Court Judicial District Court of Jefferson County is set aside, and Applicant is remanded to the trial court to answer the charge 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: April 25, 2007

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