Davis, Ex Parte Barry S.

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
AP-75,889
EX PARTE BARRY S. DAVIS, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 92F0083-005-A IN THE 5TH DISTRICT COURT
FROM BOWIE 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
aggravated assault and sentenced to twenty years’ imprisonment. He did not appeal his
conviction.
Applicant contends that the sentence is illegal because it is outside the sentencing range for
the third degree felony offense of aggravated assault. We remanded this application to the trial court
for findings of fact and conclusions of law.
The judgment reflects that this offense was committed April 19, 1991. The trial court has
determined that Applicant pled guilty to causing serious bodily injury to his wife and that all
enhancements were waived. The court also found that Applicant’s plea was entered pursuant to an
agreement.
At the time this offense was committed aggravated assault was a third degree felony,1 so a
punishment of twenty years was not authorized. Applicant is entitled to relief. Ex parte Beck, 922
S.W.2d 181 (Tex. Crim. App. 1996).
Relief is granted. The judgment in Cause No. D-202-CR-92-83 in the 202nd Judicial District
Court of Bowie County is set aside, and Applicant is remanded to the custody of the Sheriff of Bowie
County to answer the charge against him.
Copies of this opinion shall be sent to the Texas Department of Criminal Justice–Correctional
Institutions Division and Pardons and Paroles Division.
Delivered: April 9, 2008
Do Not Publish
1
Aggravated assault against a person who was not a member of a designated class, such
as peace officers, later became a second degree felony for offenses committed on or after
September 1, 1994.