Anderson, Ex Parte Charles Ray ( 2006 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. AP-75,509

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EX PARTE CHARLES RAY ANDERSON, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS IN CAUSE NUMBER 04-01-0001A-CR IN THE 97TH DISTRICT COURT FROM ARCHER 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 filed pursuant to Article 11.07, TEX.CODE CRIM.PROC. Applicant was convicted of aggravated assault on a public servant and punishment was assessed at imprisonment for five years. No appeal was taken from this conviction.

Applicant contends that his plea was involuntary, his counsel was ineffective, and the evidence was insufficient because there was no allegation or proof that he used a deadly weapon. The trial court has entered findings that Applicant was convicted pursuant to an agreement that he plead guilty to a third degree felony, and the information alleged that he threatened a public servant. There was no allegation or proof that Applicant used a deadly weapon or caused serious bodily injury. These facts reflect that Applicant was convicted of assault on a public servant pursuant to Penal Code §22.01(b)(1), and not of aggravated assault on a public servant pursuant to Penal Code §22.02(b)(1).  

Relief is granted. The judgment in Cause No. 04-01-0001A-CR in the 97^th Judicial District Court of Archer County is reformed to reflect that Applicant was convicted of assault on a public servant.

Copies of this opinion shall be sent to the Texas Department of Criminal Justice, Correctional Institutions division.

DELIVERED: September 20, 2006

DO NOT PUBLISH