IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
FROM CAUSE NO. 46201-A IN THE 23RD DISTRICT COURT OF BRAZORIA COUNTY
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 burglary of a habitation, and he originally received five years' deferred adjudication community supervision. The State later filed a motion to proceed to adjudication of guilt. Pursuant to a plea bargain agreement, Applicant pleaded true to the allegations in the State's motion, and punishment was assessed at ten years' confinement, with the State agreeing not to oppose a motion for shock probation. However, no motion for shock probation was filed, and the trial court lost jurisdiction to impose shock probation after 180 days. See Tex. Code Crim. Proc. art. 42.12, § 6.
Applicant contends, inter alia, that he was denied the effective assistance of counsel when counsel failed to file a motion for shock probation according to the plea agreement. The trial court entered findings of fact and conclusions of law recommending that Applicant be granted an out-of-time hearing on a motion for shock probation. We think that other relief is required.
The value of the sentencing options that the district court gave Applicant may have changed significantly now that he has served more than seven months of his sentence. The Applicant's choice of the ten-year sentence was based, at least in part, on the reasonable expectation that he would be considered for probation no longer than 180 days after the execution of his sentence actually began. The relief must include being freed from the consequences of the decision to accept the ten-year sentence.
Therefore this Court grants habeas corpus relief from the ten-year imprisonment portion of the judgment and sentence in cause number 46201-A from the 23rd District Court of Brazoria County. Applicant is remanded to the custody of the Sheriff of Brazoria County so that the district court may conduct a new punishment hearing and other proceedings consistent with this opinion.
DO NOT PUBLISH
DELIVERED: February 1, 2006