Wallace, Ex Parte Kenneth Michael

• Court: Court of Criminal Appeals of Texas
• Decided: December 10, 2008
• Docket: AP-76,054
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. AP-76,054

EX PARTE KENNETH MICHAEL WALLACE, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. CR26515A IN THE 75TH DISTRICT COURT FROM LIBERTY 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 theft over $1500

and sentenced to ten years’ imprisonment after Applicant was found to be a habitual offender. He

did not appeal his conviction.

Applicant pled guilty pursuant to a plea agreement, but the trial court has found that the

punishment was improperly enhanced. This offense is a state jail felony, enhanced by a third degree

felony committed in 1994 but which did not become final until 1999, and by a state jail felony which WALLACE - 2

was committed in 1995. The prior convictions were neither properly sequential, nor were they both

state jail felonies. See Campbell v. State, 49 S.W.3d 874 (Tex. Crim. App. 2001). The punishment

assessed is an illegal sentence that was a product of a plea agreement, so the entire conviction must

be vacated. Ex parte Rich, 194 S.W.3d 508 (Tex. Crim. App. 2007).

The judgment in cause number 26515 in the 75th District Court of Liberty County is hereby

set aside, and Applicant is remanded to the custody of the Sheriff of Liberty County to answer to this

indictment.

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

Institutions and Parole divisions.

Delivered: December 10, 2008 Do not publish