Falcon, Ex Parte Ricardo

  IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

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  NOS. AP-76,082, AP-76,083 & AP-76,084

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EX PARTE RICARDO FALCON Applicant

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ON APPLICATIONS FOR WRITS OF HABEAS CORPUS

CAUSE NOS. 04-53106-V; 04-53108-V & 04-53109-V

                                            IN THE 292^ND DISTRICT COURT

FROM DALLAS 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 these applications for writs of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant pleaded guilty without a plea agreement, was convicted of robbery, and sentenced to thirty years’ imprisonment for each cause. The Fifth Court of Appeals dismissed his appeals for lack of jurisdiction. Falcon v. State, Cause Nos. 05-05-1184; 05-05-1185 & 05-05-1186-CR (Tex. App.–Dallas, delivered September 22, 2005).   

            Applicant contends that his sentences are illegal because he was not present when his sentence was pronounced.

            Sentence must be pronounced in the defendant’s presence. U.S. Const. amend. IV; XIV. The record indicates that Applicant was not present when the trial court pronounced sentence against him. The State and the trial court agree that Applicant was not present and that his due process rights were violated by the trial court sentencing Applicant in absentia. Applicant is entitled to relief.             Relief is granted. The sentences in Cause Nos. 04-53106-V; 04-53108-V & 04-53109-V in the 292^nd Judicial District Court of Dallas County are set aside, and Applicant is remanded to the custody of the Sheriff of Dallas County to have sentence pronounced in his presence. Applicant’s other grounds are dismissed.

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

Delivered: January 28, 2009

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