Masterson, Ex Parte James Ivan Jr.

• Court: Court of Criminal Appeals of Texas
• Decided: April 18, 2007
• Docket: AP-75,664
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. AP-75,664 EX PARTE JAMES IVAN MASTERSON, JR., Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 03-05-03783-CR(1) IN THE 359TH DISTRICT COURT

FROM MONTGOMERY 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 and was convicted of driving while intoxicated (enhanced) and sentenced to thirteen years' imprisonment. He did not appeal his conviction.

This Court received Applicant's application on December 8^th, 2006. Prior to this Court receiving the application, Applicant had sent a letter to both the trial court clerk and the clerk of this Court requesting that his application be withdrawn. After this Court received the application, on January 19^th, 2007, the clerk of this Court received a letter from Applicant requesting that this Court not withdraw his application, but rather consider it on the merits. This Court dismissed the application on Applicant's own motion on February 7^th, 2007. After reconsideration on its own motion, the Court finds that the application should have been granted on the merits. Accordingly, the Court withdraws its prior order dismissing this application and enters this opinion granting Applicant relief.

Applicant contends that his plea was involuntary because he did not understand that one of the enhancements used to make his offense a felony was too remote to be used as an enhancement under Texas Penal Code Section 49.09(e). The trial court has determined that Applicant should be granted relief.

Relief is granted. The judgment in Cause No. 03-05-03783-CR in the 359^th Judicial District Court of Montgomery County is set aside, and Applicant is remanded to the custody of the sheriff of Montgomery County to answer the charge against him.

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

Delivered: April 18, 2007

Do Not Publish