Hutchins, Jason Mark

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS No. WR-77,879-03

EX PARTE JASON MARK HUTCHINS, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. B09-157-1 IN THE 198TH DISTRICT COURT FROM KERR COUNTY

Per curiam.

OPIN ION

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 a writ of habeas corpus. Ex parte

Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of manufacturing

methamphetamine, possessing chemicals to manufacture methamphetamine, and endangering a

child. He was sentenced to concurrent terms of twenty years’ incarceration for each offense in

accordance with plea agreements that disposed of the cases together. There were no direct appeals.

Applicant alleges that his twenty-year sentence for child endangerment is unlawful. The trial

court finds, with the State’s agreement, that the sentence is not authorized by law because it is above

the applicable punishment range. It recommends that Applicant be re-sentenced. See Ex parte Rich, -2-

194 S.W.3d 508 (Tex. Crim. App. 2006). The trial court’s finding that the sentence is not authorized

by law is supported by the habeas record, and relief should be granted. Because the case was resolved

by a plea agreement, the proper remedy is not to re-sentence Applicant but to withdraw his guilty

plea and remand the case to the trial court, which returns the parties to their original positions before

they entered into the plea agreement. Id at 515.

The judgment for the child endangerment conviction and sentence in Cause No. B09-157 in

the 198th District Court of Kerr County is set aside, and Applicant is remanded to the custody of the

Sheriff of Kerr County to answer the indictment. Applicant’s convictions and sentences for

manufacturing methamphetamine (Cause No. B09-155) and possessing chemicals to manufacture

methamphetamine (Cause No. B09-156) remain unaffected. The trial court shall issue any necessary

bench warrant within 10 days after the mandate of this Court issues.

Copies of this opinion shall be sent to the Texas Department of Criminal Justice-Correctional

Institutions Division and Pardons and Paroles Division.

Filed: June 25, 2014 Do not publish