Lopez, Ex Parte Roberto Enrique Jr. ( 2009 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. AP-76,065
EX PARTE ROBERTO ENRIQUE LOPEZ, JR., Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 06-03-0091-CR IN THE 81 ST DISTRICT COURT
FROM ATASCOSA 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 was convicted of possession of
cocaine less than one gram and sentenced to twenty-four months’ imprisonment. Applicant did not
appeal the conviction.
Applicant contends that his sentence was illegal because it was not suspended as required by
Texas Code of Criminal Procedure Art. 42.12, Section 15(a)(1).
The trial court recommends granting relief. The record does not show that Applicant had
been previously convicted of a felony offense; therefore Applicant’s sentence should have been
suspended. We find, therefore, that Applicant is entitled to relief.
Relief is granted. The sentence in Cause No. 06-03-0091-CR in the 81st Judicial District
Court of Atascosa County is vacated, and Applicant is remanded to the custody of the Sheriff of
Atascosa County to allow the trial court to sentence Applicant in compliance with Texas Code of
Criminal Procedure Art. 42.12, Sect. 15(a)(1).
Copies of this opinion shall be sent to the Texas Department of Criminal Justice–Correctional
Institutions Division and Pardons and Paroles Division.
Delivered: January 14, 2009
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