Wilburn, Tony Allen

• Court: Court of Criminal Appeals of Texas
• Decided: May 20, 2015
• Docket: WR-80,867-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-80,867-01

EX PARTE TONY ALLEN WILBURN, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 16,187-A IN THE 115TH DISTRICT COURT FROM UPSHUR 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 a writ of habeas corpus. Ex parte

Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant pleaded guilty to possession of

marihuana in a drug free zone, and was sentenced to seven years’ imprisonment. He did not appeal

his conviction.

Applicant contends, among other things, that his plea was involuntary because he was not

correctly advised of the punishment range applicable to the offense. We remanded this application

to the trial court three times for affidavits, supplementation of the record, and findings of fact

addressing Applicant’s claims. 2

The record as a whole indicates that Applicant was incorrectly admonished, both orally and

in writing as to the correct punishment for the offense charged, which should have been seven to ten

years’ imprisonment. Although the trial court correctly notes that the seven-year sentence in

exchange for which Applicant pleaded guilty was the minimum available sentence under the correct

punishment range, Applicant alleges that he would not have pleaded guilty had he known that the

correct punishment range was seven to ten years, rather than two to twenty years as the written

admonishments indicated.

In its findings after the third remand, the trial court finds that Applicant had one prior felony

conviction which could have been used to enhance his punishment had he elected to go to trial on

the charges. However, Applicant discharged his sentence in the case to which the trial court refers

on “shock” probation, rendering the conviction unavailable for enhancement purposes. Ex parte

Langley, 833 S.W. 2d 141 (Tex. Crim. App. 1992). Because Applicant did not have any other prior

felony convictions, he would not have been facing the threat of enhanced punishment had he elected

to go to trial on these charges. The record does not show that Applicant was ever correctly advised

of the punishment range applicable to the offense, and therefore his decision to forgo a trial and

plead guilty cannot be said to have been knowingly and voluntarily made.

Relief is granted. The judgment in Cause No. 16,187 in the 115th District Court of Upshur

County is set aside, and Applicant is remanded to the custody of the Sheriff of Upshur County to

answer the charges as set out in the indictment. The trial court shall issue any necessary bench

warrant within 10 days after the mandate of this Court issues.

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

Institutions Division and Pardons and Paroles Division.

Delivered: May 20, 2015 Do not publish