In Re: Kenneth Leon Snow--Appeal from 241st District Court of Smith County

NO. 12-07-00095-CR

NO. 12-07-00096-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

IN RE: KENNETH LEON SNOW, ORIGINAL PROCEEDING

RELATOR

MEMORANDUM OPINION

Kenneth L. Snow seeks a writ of mandamus compelling the trial court to withdraw Snow s guilty plea in two cases, vacate his sentences, and return him to the position he occupied prior to entering his guilty pleas. We deny the petition.

In 1998, Snow was convicted of robbery (trial court cause number 241-80487-97) and aggravated robbery (trial court cause number 241-80726-97) after pleading guilty to both offenses. He was granted deferred adjudication probation in both cases pursuant to a plea bargain. His deferred adjudication probation was subsequently revoked, and he is presently serving the term of imprisonment that was assessed upon revocation. Snow contends that the trial court s grant of deferred adjudication probation in these cases was an illegal sentence because he had been previously convicted of a felony and deferred adjudication probation was not available to him. He further contends that because the trial court initially imposed illegal sentences, the sentences assessed upon revocation are also illegal. Therefore, he concludes, his guilty pleas were involuntary and he is entitled to withdraw them and be returned to the position he occupied before entering the pleas.

In a criminal case, mandamus is appropriate when (1) the relator has no adequate remedy at law and (2) the act sought to be compelled is ministerial rather than discretionary. Ater v. Eighth Court of Appeals, 802 S.W.2d 241, 243 (Tex. Crim. App. 1991). A defendant may obtain relief from an illegal sentence on direct appeal or by a writ of habeas corpus. Mizell v. State, 119 S.W.3d 804, 806 (Tex. Crim. App. 2003). Although Snow s time for filing a notice of appeal has expired, see Tex. R. App. P. 26.2, he may seek relief by filing a postconviction writ of habeas corpus. See Tex. Code Crim. Proc. Ann. 11.07 (Vernon 2005). Therefore, we conclude that Snow has an adequate remedy at law. Accordingly, we deny the petition for writ of mandamus.

JAMES T. WORTHEN

Chief Justice

Opinion delivered March 30, 2007.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(DO NOT PUBLISH)