Carter, Ex Parte Trumaine ( 2006 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. AP-75,494

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EX PARTE TRUMAINE CARTER, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS

FROM CAUSE NO. 05-02622-CRF-27 IN THE

272^ND JUDICIAL DISTRICT COURT OF BRAZOS 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 the felony offense of aggravated assault, and punishment was assessed at ten years' confinement. No direct appeal was taken.

Applicant contends that his plea was not knowingly and voluntarily entered because the plea was conditioned on him being sentenced to five years' probation following successful completion of 150 days' incarceration. The trial court has entered findings of fact and conclusions of law, finding that Applicant successfully completed shock probation, but that through no fault of Applicant or his attorney, the trial court lost jurisdiction to place Applicant on probation. Because the plea agreement cannot be enforced, the only available remedy is to allow Applicant the opportunity to withdraw the plea. Ex parte Bittikoffer, 802 S.W.2d 701, 702 (Tex. Crim. App. 1991); Ex parte Huerta, 692 S.W.2d 681, 682 (Tex. Crim. App. 1985); Ex parte Burton, 623 S.W.2d 418, 419 (Tex. Crim. App. 1981).

Habeas corpus relief is granted and Applicant is ordered remanded to the Sheriff of Brazos County to answer the indictment in Cause No. 05-02622-CRF-272 from the 272^nd District Court of Brazos County.

DO NOT PUBLISH

DELIVERED: September 13, 2006