IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. AP-76,303
EX PARTE JESUS JAY TREVINO, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 2007-CR-1614-G IN THE 404TH JUDICIAL DISTRICT COURT
FROM CAMERON COUNTY
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 to theft and was sentenced to five years’ imprisonment. He did not appeal his conviction.
Applicant contends, inter alia, that he is being denied due process and that his trial counsel was ineffective for advising him to enter into the plea agreement, because the plea agreement cannot be followed. We remanded this application to the trial court for findings of fact and conclusions of law.
Trial counsel filed an affidavit with the trial court. Based on that affidavit, the trial court determined that Applicant pleaded guilty pursuant to an agreement that this sentence would run concurrently with a federal sentence, but that he was advised that there was no guarantee that the federal authorities would take him into custody first. The federal authorities declined to take Applicant into custody until after he has served his state sentence. Therefore, Applicant’s plea bargain agreement in this case for concurrent state and federal sentences is unenforceable, and Applicant is entitled to relief. Ex parte Huerta, 692 S.W.2d 681 (Tex. Crim. App. 1985).
Relief is granted. The judgment in Cause No. 2007-CR-1614-G in the 404the Judicial District Court of Cameron County is set aside, and Applicant is remanded to the custody of the Sheriff of Cameron County to answer the charges against him.
Copies of this opinion shall be sent to the Texas Department of Criminal Justice–Correctional Institutions Division and Pardons and Paroles Division.
Delivered: March 3, 2010
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