Franklin, Ex Parte Brenda Joyce ( 2007 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. AP-75,653

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EX PARTE BRENDA JOYCE FRANKLIN Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 700538-C IN THE 339TH DISTRICT COURT FROM HARRIS 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 was convicted of possession of less than one gram of cocaine and sentenced to twenty-five (25) years' imprisonment. Her habeas application challenging the sentence was granted and the case was remanded to the trial court for a new punishment hearing. See Ex parte Franklin, No. AP-75,058 (Tex. Crim. App. December 15, 2004) (not selected for publication) (citing Mancuso v. State, 919 S.W.2d 86 (Tex. Crim. App. 1996). Following the new hearing, Applicant was sentenced to ten (10) years' imprisonment.

Applicant contends that her 10-year sentence is also illegal because it is outside the sentencing range for a state jail felony offense. The trial court recommends denying relief "because Applicant failed to make any allegations with regards to the present cause number 783701." It appears that Applicant listed an incorrect cause number on the first page of her application, but it is apparent from the pleadings and the attachments in support that Applicant is challenging her sentence in cause number 700538. Applicant is entitled to relief.

Applicant's punishment is outside the statutorily mandated sentencing range for a state jail felony offense committed on August 10, 1995. It appears the district court applied the law that was in effect on the date of the punishment hearing.

Relief is granted. The sentence in Cause No. 700538 in the 339th Judicial District Court of Harris County is set aside, and Applicant is remanded to the custody of the Sheriff of Harris County for a new punishment hearing.

Delivered: April 4, 2007

Do Not Publish