Cubillas, Ex Parte Jorge Alberto ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. AP-76,469

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EX PARTE JORGE ALBERTO CUBILLAS, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. CR36053 IN THE 238^TH CRIMINAL DISTRICT COURT

FROM MIDLAND 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 pleaded guilty and was convicted of one count of aggravated sexual assault of a child and three counts of indecency with a child. He was sentenced to ten year's imprisonment for each count, running concurrently. Applicant did not appeal his convictions.

Applicant contends, inter alia, that his convictions violate the Double Jeopardy Clause of the US Constitution. Counts one and two arose from the same incident against the same victim. The actions which constituted count two, indecency with a child by contact, were a part of the same actions necessary to prove count one, aggravated sexual assault of a child. Count two is therefore subsumed in count one and Applicant is entitled to relief. Patterson v. State, 152 S.W.3d 88 (Tex. Crim. App. 2004).

Relief is granted. The judgment in count two of Cause No. CR36053 in the 238^th Judicial District Court of Midland County is vacated and set aside. All challenges to the judgments in counts one, three, and four are denied based both on the trial court's findings and this Court's examination of the record.

Copies of this opinion shall be sent to the Texas Department of Criminal Justice-Correctional Institutions Division and Parole Division.

Delivered: December 15 ,2010

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