Magana, Ex Parte Ruben

• Court: Court of Criminal Appeals of Texas
• Decided: October 31, 2012
• Docket: AP-76,903
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. AP-76,903

EX PARTE RUBEN MAGANA, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. B-07-2141-0-CR-B IN THE 156TH DISTRICT COURT FROM BEE COUNTY

Per curiam.

OPINION

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 two counts of

driving while intoxicated with a passenger under the age of 15 and sentenced to five years’

imprisonment in each case, to run consecutive to two other cases. He did not appeal his conviction.

Applicant contended that he is serving an illegal sentences and that his plea was involuntary

because, inter alia, trial counsel rendered ineffective assistance of counsel. We remanded this

application to the trial court for a response from counsel and findings of fact and conclusions of law.

The trial court did not obtain an affidavit from counsel and did not make findings addressing 2

Applicant’s claims that counsel was ineffective. However, based on the record, the trial court

determined that Applicant’s sentences are illegal. Applicant is entitled to relief. Ex Parte Rich, 194

S.W.3d 508 (Tex. Crim. App. 2006).

Relief is granted. The judgment in Cause No. B-07-2141-0-CR-B in the 156th District Court

of Bee County is set aside, and Applicant is remanded to the custody of the Sheriff of Bee County

to answer the charges as set out in the indictment. 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.

Delivered: October 31, 2012 Do not publish