Sterling, Ex Parte Joseph Michael

• Court: Court of Criminal Appeals of Texas
• Decided: March 19, 2008
• Docket: AP-75,875
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. AP-75,875

EX PARTE JOSEPH MICHAEL STERLING, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 886600-A IN THE 185 TH JUDICIAL DISTRICT COURT FROM HARRIS 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 failure to register

as a sex offender and sentenced to twenty-seven years’ imprisonment. The Seventh Court of

Appeals affirmed his conviction. Sterling v. Texas, No. 07-02-0183-CR (Tex. App. – Amarillo,

April 3, 2003, no pet.)

Applicant contends, inter alia, that his trial counsel rendered ineffective assistance because

he failed to note that one of the prior convictions used to enhance Applicant’s punishment range to that of a habitual felony offender was not available for such use.

The trial court has determined that trial counsel was ineffective in that counsel allowed

Applicant to plead “true” at the punishment stage to the invalid enhancement, and that such

ineffective representation prejudiced Applicant in that the jury was instructed to sentence Applicant

under the incorrect punishment range. We find, therefore, that Applicant is entitled to a new

punishment trial in Cause No. 886600-A from the 185th Judicial District Court of Harris County.

The sentence in that cause is set aside, and Applicant is remanded to the trial court for a new

sentencing trial.

Copies of this opinion shall be sent to the Texas Department of Criminal Justice–Correctional

Institutions Division and Pardons and Paroles Division.

Delivered: March 19, 2008 Do Not Publish