Moore, Ex Parte Ricky Steve

• Court: Court of Criminal Appeals of Texas
• Decided: May 25, 2011
• Docket: AP-76,558
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. AP-76,558

EX PARTE RICKY STEVE MOORE, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 15,536-A IN THE 115TH DISTRICT COURT FROM UPSHUR 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 writ of habeas corpus.

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

delivery of less than one gram of cocaine in a drug-free zone, enhanced with two previous

felony convictions, and was sentenced pursuant to a plea agreement to 25 years’

imprisonment. See T EX. C ONTROLLED S UBSTANCES A CT §§ 481.112(b), 481.134; T EX. P ENAL

C ODE § 12.42(d). He did not appeal the conviction. 2

In his writ application, Applicant contends, inter alia, that his sentence is not

authorized by law. He argues that the convictions used to enhance the punishment range of

his offense under Penal Code Section 12.42(d) were not sequential because the second

previous offense occurred before and not after the first previous conviction had become final.

Indeed, for previous sentences to be considered sequential under this section, the State must

show that “the defendant [had] previously been finally convicted of two felony offenses, and

the second previous felony conviction [was] for an offense that occurred subsequent to the

first previous conviction having become final.” T EX. P ENAL C ODE § 12.42(d). The State

candidly responds that the sequential enhancement was not proper and concedes error. The

convicting court agrees and recommends that relief be granted in the form of a new

punishment hearing.

After an independent review of the record provided to this Court, we agree with the

trial court’s recommendation. Relief on Applicant’s illegal sentence claim is properly raised

before this Court and should be granted. See Ex parte Rich, 194 S.W.3d 508, 511 (Tex. Crim.

App. 2006) (recognizing that claims involving an illegal sentence, i.e., a sentence not

authorized by law, may be raised on habeas corpus). However, in cases such as this where

there was a plea agreement between the parties, “[T]he proper remedy is to allow Applicant

to withdraw his plea and remand the case to the trial court, putting both parties back in their

original positions before they entered into the plea bargain.” Id. at 514-15. We hold,

therefore, that in Cause Number 15,536, The State of Texas v. Ricky Steve Moore, in the 3

115th Judicial District Court of Upshur County, Applicant’s conviction and sentence are both

set aside, and the parties are returned to their respective positions before they entered into the

plea bargain.

RELIEF GRANTED: Applicant shall be remanded to the custody of the Sheriff of

Upshur County, Texas, to answer the indictment filed against him in Cause Number 15,536,

The State of Texas v. Ricky Steve Moore, in the 115th Judicial District Court of Upshur

County.

Delivered: May 25, 2011

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