Rodriguez, Ex Parte Rafael Olguin

• Court: Court of Criminal Appeals of Texas
• Decided: August 31, 2005
• Docket: AP-75,224
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. AP-75,224 EX PARTE RAFAEL RODRIGUEZ, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

FROM CAUSE NO. 2000CR1921 IN THE 144^TH JUDICIAL DISTRICT COURT,

BEXAR 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 pleaded nolo contendere to the third degree felony offense of possession of a substance in penalty group I, and was placed on deferred adjudication probation for a term of four years. On October 8, 2002, Applicant was adjudicated guilty and sentenced to confinement for eighteen years, plus a fine of $10,000.

Applicant contends that his sentence of 18 years is outside the punishment range for a third degree felony. The record reflects that Applicant entered his plea to a third degree felony but was erroneously sentenced for a second degree offense when his guilt was adjudicated. The trial court entered findings of fact and conclusions of law recommending that Applicant be granted a new punishment hearing since the sentence falls outside the range of punishment for his offense.

Habeas corpus relief is granted. The sentence in cause number 2000CR1921 from the 144th District Court of Bexar County is vacated, and Applicant is remanded to the custody of the trial court for a new sentencing hearing.

DO NOT PUBLISH

DELIVERED: August 31, 2005