Lopez, Ex Parte Ramon Delgado ( 2005 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. AP-75,307

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EX PARTE RAMON DELGADO LOPEZ, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. W02-40428-H(A) IN THE CRIMINAL DISTRICT

COURT NO. 1 FROM DALLAS COUNTY

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   Per Curiam.

O P I N I O N

   This is a post-conviction application for a writ of habeas corpus forwarded to this Court pursuant to Tex. Code Crim. Proc. art. 11.07, § 3, et seq.. Applicant was convicted of the felony offense of robbery, and punishment was assessed at confinement for ten years. No direct appeal was taken.

Applicant contends, inter alia, that his trial counsel was ineffective for failing to timely bench warrant him back to Dallas County, as the judge instructed, for the court consider him for shock probation.

The trial court initially entered findings of fact and conclusions of law finding that Applicant, through no fault of his own, did not receive the shock probation hearing the court had authorized, and he should be granted a re-sentencing hearing. The trial court has filed supplemental findings of fact and conclusions of law finding that it would have granted shock probation had Applicant been timely returned for a shock probation hearing.

Habeas corpus relief is granted. The sentence in cause number W02-40428-H(A) from the Criminal District Court No. 1 District Court of Dallas County is vacated, and the Applicant is remanded to the custody of the Sheriff of Dallas County so that a new punishment hearing may be conducted.

Copies of this opinion shall be sent to the Texas Department of Criminal Justice, correctional institutions, and parole divisions.

DO NOT PUBLISH

DELIVERED: December 14, 2005