Trevino, Ex Parte Jesus Jay

• Court: Court of Criminal Appeals of Texas
• Decided: March 3, 2010
• Docket: AP-76,303
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. AP-76,303

EX PARTE JESUS JAY TREVINO, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 2007-CR-1614-G IN THE 404 TH JUDICIAL DISTRICT COURT FROM CAMERON 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 pleaded guilty to theft and was

sentenced to five years’ imprisonment. He did not appeal his conviction.

Applicant contends, inter alia, that he is being denied due process and that his trial counsel

was ineffective for advising him to enter into the plea agreement, because the plea agreement cannot

be followed. We remanded this application to the trial court for findings of fact and conclusions of

law. 2

Trial counsel filed an affidavit with the trial court. Based on that affidavit, the trial court

determined that Applicant pleaded guilty pursuant to an agreement that this sentence would run

concurrently with a federal sentence, but that he was advised that there was no guarantee that the

federal authorities would take him into custody first. The federal authorities declined to take

Applicant into custody until after he has served his state sentence. Therefore, Applicant’s plea

bargain agreement in this case for concurrent state and federal sentences is unenforceable, and

Applicant is entitled to relief. Ex parte Huerta, 692 S.W.2d 681 (Tex. Crim. App. 1985).

Relief is granted. The judgment in Cause No. 2007-CR-1614-G in the 404the Judicial

District Court of Cameron County is set aside, and Applicant is remanded to the custody of the

Sheriff of Cameron County to answer the charges against him.

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

Institutions Division and Pardons and Paroles Division.

Delivered: March 3, 2010 Do Not Publish