Cassell, Ex Parte Donald Lewis ( 2011 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. AP-76,660

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EX PARTE DONALD LEWIS CASSELL, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 34979CR IN THE 40^TH DISTRICT COURT FROM ELLIS 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 pleaded guilty and was convicted of failure to stop and render aid. He was sentenced to 730 days imprisonment in a state jail pursuant to his plea bargain agreement. He did not appeal his conviction.

Applicant contends that his plea was involuntary because he was admonished and sentenced for a state jail felony when the offense as indicted was not a state jail felony. Tex. Transportation Code §550.021(c)(2).

The State concedes that Applicant was improperly admonished and given an improper sentence for this offense. Applicant is entitled to relief.

Relief is granted. The judgment in Cause No. 34979CR in the 40^th Judicial District Court of Ellis County is set aside, and Applicant is remanded to the custody of the sheriff of Ellis 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: October 12, 2011

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