McElroy, Ex Parte John Theodore

• Court: Court of Criminal Appeals of Texas
• Decided: March 29, 2006
• Docket: AP-75,365
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. AP-75,365 EX PARTE JOHN THEODORE MCELROY, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

TRIAL COURT CAUSE NO. 04-03-02184-CR IN THE 9^TH JUDICIAL DISTRICT COURT

FROM MONTGOMERY COUNTY

Per Curiam.

O P I N I O N

This is a post-conviction application for a writ of habeas corpus forwarded to this Court pursuant to Tex. Code Crim. Proc. art. 11.07, § 3, et seq.. Applicant was convicted of the felony offense of aggravated assault, and punishment was assessed at confinement for two years. Applicant's direct appeal was dismissed on Applicant's pro se motion. McElroy v. State, 09-04-540-CR (Tex. App.--Beaumont, delivered June 29, 2005)(mem. op.)

Applicant contends his trial attorney provided ineffective assistance of counsel. The State has stipulated that Applicant was provided ineffective assistance by trial counsel. The trial court entered findings of fact and conclusions of law finding Applicant's counsel provided ineffective assistance of counsel. We agree. Applicant's trial counsel was provided an opportunity to respond to the allegations, however, the affidavit he provided did not address the issues presented. There are affidavits in the record from the trial prosecutor and applicant's punishment hearing counsel that establish ineffective assistance of initial trial counsel. The trial court's findings are supported by the record.

Relief is granted. The judgment in cause number 04-03-02184-CR in the 9^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: March 29, 2006

DO NOT PUBLISH