Defoor, Ex Parte Ernest Eugene ( 2008 )

  IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

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  NO. AP-75,938

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EX PARTE ERNEST EUGENE DEFOOR, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 06-07-06501-CR IN THE 9^TH DISTRICT COURT

FROM MONTGOMERY 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 driving while intoxicated and sentenced to five years’ imprisonment. He did not appeal his conviction.

            Applicant contends that his sentence is illegal because one of the previous driving while intoxicated convictions used to enhance his offense to a felony was a successfully completed probation from 1976. Applicant also contends that his counsel was ineffective for failing to research the law and for allowing him to plead guilty to a felony when the offense was properly a misdemeanor.

            Trial counsel filed an affidavit with the trial court. Based on that affidavit and the record regarding the prior offenses, the trial court determined that counsel was ineffective and that Applicant’s sentence is illegal. Applicant is entitled to relief. Ex parte Serrato, 3 S.W.3d 41 (Tex. Crim. App. 1999).

            Relief is granted. The judgment in Cause No. 06-07-06501-CR in the 9^th Judicial District Court of Montgomery County is set aside, and Applicant is remanded to the trial court to answer the charge against him.

            Copies of this opinion shall be sent to the Texas Department of Criminal Justice–Correctional Institutions Division and Pardons and Paroles Division.

Delivered: June 11, 2008

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