Netherton, Kenneth Ray ( 2013 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. WR-79,632-01

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EX PARTE KENNETH RAY NETHERTON, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 26,537 IN THE 159^th DISTRICT COURT FROM ANGELINA 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 a writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). After a period of deferred adjudication, Applicant was convicted of indecency with a child and sentenced to six years' imprisonment pursuant to a plea agreement. He did not appeal his conviction.

Applicant contends that his plea was involuntary because the plea agreement can no longer be followed. As a part of his plea agreement, Applicant was to be considered for shock probation. However, counsel failed to file a timely motion for consideration and now the time for such consideration has passed.

The trial court signed an agreed order stating that Applicant is entitled to relief and should be released to community supervision.

Relief is granted. The judgment of adjudication in Cause No. 26,537 in the 159^th District Court of Angelina County is set aside, and Applicant is remanded to the custody of the Sheriff of Angelina County to answer the motion for adjudication of guilt. The trial court shall issue any necessary bench warrant within 10 days after the mandate of this Court issues.

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

Delivered: July 24, 2013

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