Von Norman, Ex Parte Christopher ( 2005 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NOS. AP-75,089; 75,090; 75,091; 75,092; 75,093

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EX PARTE CHRISTOPHER VON NORMAN, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS

FROM HARRIS COUNTY

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  Per Curiam.

O P I N I O N   

   This is a post-conviction application for a writ of habeas corpus forwarded to this Court pursuant to Tex. Code Crim. Proc. art. 11.07, § 3, et seq. Applicant pleaded guilty to five charges of the felony offense of aggravated robbery, and punishment was assessed at fifty years' confinement in each case, to be served concurrently. No direct appeal was taken.

Applicant contends that his guilty pleas were not entered voluntarily, because he relied on his trial counsel's incorrect assurance that the sentences would run concurrently with a pending federal sentence. Applicant's understanding, based on counsel's advice, was that his state sentences would run concurrently with his sentence in a federal case, in which he had pleaded guilty, but had not yet been sentenced. Instead, the federal court imposed a consecutive sentence of 262 months.

The trial court has entered findings of fact and conclusions of law recommending that applicant be granted relief. We agree. The circumstances of applicant's case are much like those of the applicant in Ex parte Moody, 991 S.W.2d 856 (Tex. Crim. App. 1999). In that case, this Court found that a trial attorney's advice based on a similar mistake regarding the operation of an applicant's sentences was not within the range of competence for a criminal attorney. Where the applicant's decision to plead guilty was a result of counsel's deficient advice, and the applicant could show prejudice, this Court held that the applicant had met his burden and was entitled to habeas relief. Id. at 858-859.

In this case applicant has provided an affidavit from trial counsel, in which counsel admits his mistake about the operation of applicant's sentences, and provides support for applicant's claim that he would not have pleaded guilty to the five aggravated robbery charges if not for the erroneous advice. Furthermore, applicant has been prejudiced.

Relief is granted. We set aside the judgment in causes 697913-A, 698370-A, 698371-A, 698372-A, and 698373-A from the 232nd District Court of Harris County and remand applicant to the Harris County Sheriff to answer the charges against him. Copies of this opinion shall be sent to the Texas Board of Pardons and Paroles as well as the Texas Department of Criminal Justice, Institutional and Parole Divisions.

DO NOT PUBLISH

DELIVERED: February 9, 2005