McKee, Ex Parte Mark Russell ( 2009 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. AP-76,262
EX PARTE MARK RUSSELL MCKEE, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. C-34,147 IN THE 244 TH DISTRICT COURT
FROM ECTOR COUNTY
Per curiam.
OPINION
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 pursuant to a plea
bargain, was convicted of burglary of a habitation, and sentenced to ten years’ imprisonment. He did
not appeal his conviction.
Applicant contends that his plea was involuntary because the plea agreement cannot be
followed. We remanded this application to the trial court for findings of fact and conclusions of law.
The plea papers, admonishments, judgment and trial transcripts all reflect that the plea
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agreement specifically included the provision that this sentence would run concurrently with
Applicant’s ten year federal sentence imposed in December 2006. The federal judgment requires
and specifically states that the federal sentence is to begin when the state sentence expires. The
terms of Applicant’s plea bargain were not met, therefore Applicant is entitled to relief. Ex parte
Huerta, 692 S.W.2d 681 (Tex. Crim. App. 1985).
Relief is granted. The judgment in Cause No. C-34,147 in the 244th Judicial District Court
of Ector County is set aside, and applicant is remanded to the custody of the Sheriff of Ector County
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: November 18, 2009
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