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 2006-06

Crow, Timmie Gene ( 2006 )


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  • IN THE COURT OF CRIMINAL APPEALS

    OF TEXAS



    NO. WR-57,874-04

    EX PARTE TIMMIE GENE CROW, Applicant


    ON APPLICATION FOR WRIT OF HABEAS CORPUS

    CAUSE NUMBER 047458-D IN THE 336TH

    JUDICIAL DISTRICT COURT GRAYSON COUNTY





       Per curiam.





    O R D E R



    This is an application for a writ of habeas corpus that was transmitted to this Court by the clerk of the trial court pursuant to the provisions of Article 11.07, Section 3, of the Texas Code of Criminal Procedure. Ex Parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant pled guilty to burglary of a habitation with intent to commit theft, and the trial court sentenced him to confinement in prison for a period of twenty-five years. There was no direct appeal.  

    In his application, Applicant contends that he should be eligible for release to mandatory supervision, but Texas prison officials and the Texas Board of Pardons and Paroles (Board) are not considering him eligible for such release. See Tex. Gov't Code §§ 508.147, 508.149. He argues that these officials have incorrectly determined that he was convicted of an offense listed in Section 508.149 of the Government Code, which would make him ineligible for release to mandatory supervision. See Ex parte Mabry, 137 S.W.3d 58 (Tex. Crim. App. 2004) (Section 508.149 bars mandatory supervision for inmates who are serving a sentence for a first-degree felony for burglary under Section 30.02 of the Penal Code); Ex parte Thompson, 173 S.W.3d 458 (Tex. Crim. App. 2005) (the offense of burglary of a habitation with intent to commit theft, however, is not included in the list of offenses under Section 508.149).

    In essence, Applicant states that his conviction in cause number 047458 from the 336th Judicial District Court of Grayson County for burglary of a habitation with intent to commit theft was for a second-degree felony, but the judgment incorrectly indicates the offense was for a first-degree felony. Indeed, a review of the record shows that the indictment to which Applicant pled guilty alleged a second-degree felony, and the judgment identifies the offense as a first-degree felony.



    While it is true that Applicant was punished within the range for a first-degree felony due to a prior felony conviction, it appears that the offense level should have remained that of a second-degree felony. See Tex. Penal Code §§ 12.42 (b); 30.02 (a), (c); see also, e.g., Garland v. State, 170 S.W.3d 107 (Tex. Crim. App. 2005) (discussing enhancement provision). However, any correction to the judgment of the court should be made through a motion for a nunc pro tunc judgment filed with the district clerk of the convicting court. See, e.g., Ex parte Ybarra, 149 S.W.3d 147 (Tex. Crim. App. 2004). This application is DISMISSED.  

    FILED: June 7, 2006

    DO NOT PUBLISH