Lopez, Guadalupe ( 2014 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-78,099-01
EX PARTE GUADALUPE LOPEZ, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 10-10-06789-MCRAJA IN THE 365TH DISTRICT COURT
FROM MAVERICK 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 was convicted of possession of
marihuana and sentenced to ten years’ imprisonment. He did not appeal his conviction.
Applicant contends that his trial counsel rendered ineffective assistance because counsel
abandoned the negotiated cap on sentencing and argued for shock probation without determining
whether Applicant was eligible for release to shock probation.
The trial court has determined that trial counsel, retained for sentencing, did not know that
Applicant was ineligible for shock probation, and that he did not review the Code of Criminal
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Procedure’s requirements for shock probation before arguing for the same at sentencing. The trial
court also found that, had counsel not pursued shock probation in exchange for an abandonment of
the previously negotiated cap, the trial court would not have exceeded that cap in sentencing
Applicant. We find that counsel rendered ineffective assistance. Relief is granted. The sentence in
Cause No. 10-10-06789-MCRAJA in the 365th District Court of Maverick County is set aside, and
Applicant is remanded to the custody of the Sheriff of Maverick County for re-sentencing in
accordance with the original plea agreement, which the trial court is ordered to re-instate. 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: March 12, 2014
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