McDonald, James ( 2018 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-89,114-01
EX PARTE JAMES MCDONALD, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 2015CR12465-W1 IN THE 175TH DISTRICT COURT
FROM BEXAR COUNTY
Per curiam. KELLER , P.J., filed a dissenting opinion in which KEEL, J., joined.
OPINION
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 a writ of habeas corpus. Ex parte
Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant pleaded guilty and was convicted
of aggravated sexual assault-child and sentenced to ten years’ imprisonment. The Fourth Court of
Appeals dismissed his direct appeal for lack of jurisdiction. McDonald v. State, 04-17-00804-CR
(Tex. App.—San Antonio Jan. 24, 2018)(not designated for publication).
Applicant contends that his plea was involuntary because he was advised that he was facing
a first degree felony punishment when the indictment did not properly charge any crime and the
factual allegations contained in the indictment would have only supported a second degree felony.
2
He alleges that counsel advised him to take the State’s plea offer because he would likely get life in
prison if he chose to go to a jury trial and had he known he would only be facing a maximum
sentence of twenty years, he would have rejected the State’s plea offer.
The record supports Applicant’s claims and both the State and the trial court agree that.
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. 2015CR12465 in the 175th District Court of
Bexar County is set aside, and Applicant is remanded to the custody of the Sheriff of Bexar 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 and Pardons and Paroles Division.
Delivered: December 19, 2018
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