Palomares, Ex Parte Guadalupe Villamar ( 2008 )

  IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

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  AP-75,987

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EX PARTE GUADALUPE VILLAMAR PALOMARES, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 2006-CR-11-B IN THE 138TH DISTRICT COURT

FROM CAMERON 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 was convicted of possession of more than four ounces of marihuana and sentenced to five years’ imprisonment. He did not appeal his conviction.

            Applicant contends that his sentence is illegal. Possession of more than four ounces but less than five pounds of marihuana is a state jail felony, with a maximum punishment of two years in a state jail. The trial court determined that the punishment assessed when Applicant’s deferred adjudication community supervision was revoked was not authorized. Applicant is entitled to relief.

            Relief is granted. The judgment in Cause No. 2006-CR-11-B in the 138th Judicial District Court of Cameron County is set aside, and Applicant is remanded to the trial court so that a new punishment may be assessed.

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

Delivered: September 10, 2008

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