Russell, Ex Parte Jacob Wayne ( 2007 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. AP-75,775

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EX PARTE JACOB WAYNE RUSSELL, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. F37680A IN THE 413TH DISTRICT COURT FROM JOHNSON 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 this application for writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of criminal mischief and following the revocation of community supervision he was sentenced to six (6) years' imprisonment. He did not appeal his conviction.

Applicant contends that his sentence is illegal because a prior felony offense was used to enhance the state jail felony for which Applicant was convicted in this case, when the prior offense was not available. The State agrees.

The trial court has entered an order finding that there are no controverted, previously unresolved issues of fact material to the legality of Applicant's confinement. Based on this Court's independent review of the record, we find that Applicant is entitled to relief. Ex parte Miller, 921 S.W.2d 239 (Tex. Crim. App. 1996).

Relief is granted. The judgment in Cause No. F37680 in the 413th Judicial District Court of Johnson County is set aside, and Applicant is remanded to the custody of the sheriff of Johnson 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 Parole Division.

Delivered: October 3, 2007

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