EX PARTE RICHARD LEE TREVINO (other)

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. AP-76,586

EX PARTE RICHARD LEE TREVINO, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. B09-474 IN THE 198TH DISTRICT COURT

FROM KERR 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 was convicted of unauthorized use of a motor vehicle and sentenced to two years' imprisonment in a state jail facility. He did not appeal his conviction.

Applicant contends that his plea was involuntary because the plea agreement cannot be followed. We remanded this application to the trial court for findings of fact and conclusions of law.

Trial counsel filed an affidavit with the trial court. Based on that affidavit, the trial court determined that applicant plead guilty pursuant to an agreement that he would receive 334 days of pre-sentence jail time credit. Applicant cannot receive such time credit because the date of offense was only forty days prior to the date of judgment. Applicant is entitled to relief. Ex parte Huerta, 692 S.W.2d 681 (Tex. Crim. App. 1985).

Relief is granted. The judgment in Cause No. B09-474 in the 198th Judicial District Court of Kerr County is set aside, and Applicant is remanded to the custody of the Sheriff of Kerr County to answer the charges as set out in the indictment. 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, State Jail Division, and Pardons and Paroles Division.

Delivered: June 22, 2011

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