Gibson, Ex Parte Troy Lee

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. AP-75,534 EX PARTE TROY LEE GIBSON, Applicant ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. CR25328 IN THE 253 RD JUDICIAL DISTRICT COURT FROM LIBERTY COUNTY 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 to burglary of a habitation and was sentenced to ten years' imprisonment. He did not appeal his conviction. Applicant contends that his plea was involuntary because his plea was conditioned on the fact that he would be considered for shock probation if he abided by TDCJ rules for 120 days. When the motion for shock probation was filed, the trial court initially entered an order granting shock probation. However, it was discovered that the jurisdiction of the trial court had expired before the motion was filed, and also that Applicant was ineligible for shock probation because of a prior felony sentence. The trial court held a hearing, at which the prosecutor agreed that Applicant should receive the benefit of the plea agreement, and offered to "do whatever is necessary to make that benefit available to him, procedurally speaking." The trial court then entered an order withdrawing the previous order granting shock probation. Applicant filed this writ in this Court, alleging that his plea agreement had been violated, rendering his plea involuntary. The State filed an answer, recommending that relief be denied, and that Applicant be penalized for filing a "frivolous application" by forfeiture of his good time credit. Tex. Gov't Code §498.045. The trial court entered findings of fact and conclusions of law, finding that Applicant's plea was not knowingly and voluntarily entered, because at the time of the plea Applicant did not know that he was ineligible for shock probation. The trial court concluded that the unenforceable plea bargain was used as an inducement for the guilty plea, and that the proper remedy would be to allow Applicant to withdraw his plea. We agree. See Ex parte Rogers, 629 S.W.2d 741, 742 (Tex. Crim. App. 1982). Relief is granted. The judgment in Cause No. CR25328 in the 243rd Judicial District Court of Liberty County is set aside, and Applicant is remanded to the trial court 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: November 1, 2006 Do Not Publish