Ulibarri, Ex Parte Shauna Lynn ( 2007 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. AP-75,773

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EX PARTE SHAUNA LYNN ULIBARRI, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. W06-64394-VA IN THE 292^ND JUDICIAL DISTRICT COURT FROM DALLAS COUNTY

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   Per curiam. O P I N I O N  

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 pleaded guilty to robbery and was originally sentenced to ten years, probated. Her probation was later revoked, and her sentence reformed to three years' imprisonment. Applicant did not appeal conviction or the revocation.

Applicant contends that trial counsel rendered ineffective assistance because at the time of Applicant's revocation, the trial court requested that counsel file a motion for shock probation. Counsel did file a motion for shock probation, but failed to present the motion or request a hearing before the trial court's jurisdiction expired. Tex. Code Crim. Proc. art. 42.12 §6.

The trial court has entered findings of fact finding, inter alia, that the court would have granted shock probation had the motion been timely presented, unless the State presented evidence to the contrary. The State in turn has filed an answer, indicating that it has no objection to the granting of the relief Applicant seeks.

Habeas corpus relief is granted. The sentence in cause number F-06-64394-V from the 292^nd Judicial District Court of Dallas County is vacated, and 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.

Delivered: October 3, 2007

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