Prince, Ex Parte Marcus ( 2009 )

  IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

---

  NO. AP-76,125

---

EX PARTE MARCUS PRINCE, Applicant

---

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. C-3-008694-1012736-A IN THE CRIMINAL DISTRICT COURT #3

FROM TARRANT COUNTY

---

           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 the offense of failure to comply with sex offender registration requirements, enhanced by a prior felony conviction, and was sentenced to four years’ imprisonment. He did not appeal his conviction.

            Applicant contends, inter alia, that his plea was involuntary and his sentence unauthorized, because he was charged with failing to register under the incorrect section of the Texas Code of Criminal Procedure. The trial court determined that Applicant is correct, in that the offense with which he was charged should have been a state jail felony, not a third degree felony. Furthermore, the prior felony conviction used to enhanced his punishment range would not have been usable to enhance the primary offense had it been properly charged. Applicant was charged with the wrong degree of offense, and was admonished as to an incorrect punishment range. Applicant is entitled to relief. Ex parte Huerta, 692 S.W.2d 681 (Tex. Crim. App. 1985); Ex parte Rich, 194 S.W.3d 508, 515 (Tex. Crim. App. 2006).

            Relief is granted. The judgment in Cause No. C-3-008694-1012736-A in the Criminal District Court #3 of Tarrant County is set aside, and Applicant is remanded to the custody of the sheriff of Tarrant County to answer the charges as set out in the indictment.

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

Delivered: April 1, 2009

Do Not Publish