Stanton, Ex Parte Jimmy Ray

• Court: Court of Criminal Appeals of Texas
• Decided: September 28, 2005
• Docket: AP-75,249
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. AP-75,249 EX PARTE JIMMY RAY STANTON, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. W95-42362-S(A) IN THE 282^ND JUDICIAL DISTRICT COURT

DALLAS 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 two years confinement. No direct appeal was taken.

Applicant contends, inter alia, that the state is not upholding its end of the plea bargain. Applicant pleaded guilty in exchange for a two-year sentence to run concurrently with a federal sentence, and to be served in federal custody. However, applicant was not remanded to federal custody, but was instead sent to TDCJ.

The trial court has entered findings of fact and conclusions of law recommending that applicant's judgment and sentence be set aside, and that he be remanded to answer to the state charges. We agree. Pursuant to this Court's decision in Ex parte Huerta, 692 S.W.2d 681, 682 (Tex. Crim. App. 1985), the proper remedy is to allow applicant to withdraw his unenforceable plea.

Habeas corpus relief is granted. The judgment and sentence is set aside, and applicant is ordered remanded to the Sheriff of Dallas County to answer the indictment in Cause No. W-95-42362-S(A) of the 282nd Judicial District Court of Dallas County.

Applicant's remaining claims are dismissed. See Ex parte Torres, 943 S.W.2d 469 (Tex. Crim. App. 1997).

DO NOT PUBLISH

DELIVERED: September 28, 2005