Thomas, Ex Parte Edwin Kindell

• Court: Court of Criminal Appeals of Texas
• Decided: October 26, 2005
• Docket: AP-75,275
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. AP-75,275 EX PARTE EDWIN KINDELL THOMAS, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 11,903 IN THE 21^st DISTRICT COURT

OF BURLESON COUNTY

Per curiam.

O P I N I O N

Appellant was convicted of possession of less than one gram of cocaine and punishment was assessed at confinement for fourteen years after Applicant was found to be a habitual offender. No appeal was taken from this conviction.

Applicant contends that his plea was involuntary because it was pursuant to an agreement that this sentence would be concurrent to a sentence imposed in federal court, and the federal sentence is not being run concurrently. The trial court has found that Applicant's plea agreement included a provision that this sentence would run concurrently with his federal sentence, but that sentence is not running concurrently. The trial court also concludes that Applicant's plea was not involuntary because if he had not agreed to the plea offer he was facing a possible sentence of 25 years to life in another cause. However, the only evidence in this record to support that conclusion is the State's intent to prosecute Applicant for a more serious offense unless he agreed to plead guilty, which is not sufficient to rebut the presumption that a plea entered pursuant to an agreement is involuntary if all elements of that agreement cannot be performed. See Ex parte Huerta, 692 S.W.2d 681 (Tex. Crim. App. 1985).

Therefore, Applicant is entitled to relief. The judgment in cause number 11,903 in the 21^st Judicial District Court of Burleson County is set aside, and Applicant is remanded to answer the charges against him.

DELIVERED: October 26, 2005

DO NOT PUBLISH