IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-80,867-01
EX PARTE TONY ALLEN WILBURN, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 16,187-A IN THE 115TH DISTRICT COURT
FROM UPSHUR COUNTY
Per curiam.
OPINION
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 a writ of habeas corpus. Ex parte
Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant pleaded guilty to possession of
marihuana in a drug free zone, and was sentenced to seven years’ imprisonment. He did not appeal
his conviction.
Applicant contends, among other things, that his plea was involuntary because he was not
correctly advised of the punishment range applicable to the offense. We remanded this application
to the trial court three times for affidavits, supplementation of the record, and findings of fact
addressing Applicant’s claims.
2
The record as a whole indicates that Applicant was incorrectly admonished, both orally and
in writing as to the correct punishment for the offense charged, which should have been seven to ten
years’ imprisonment. Although the trial court correctly notes that the seven-year sentence in
exchange for which Applicant pleaded guilty was the minimum available sentence under the correct
punishment range, Applicant alleges that he would not have pleaded guilty had he known that the
correct punishment range was seven to ten years, rather than two to twenty years as the written
admonishments indicated.
In its findings after the third remand, the trial court finds that Applicant had one prior felony
conviction which could have been used to enhance his punishment had he elected to go to trial on
the charges. However, Applicant discharged his sentence in the case to which the trial court refers
on “shock” probation, rendering the conviction unavailable for enhancement purposes. Ex parte
Langley, 833 S.W. 2d 141 (Tex. Crim. App. 1992). Because Applicant did not have any other prior
felony convictions, he would not have been facing the threat of enhanced punishment had he elected
to go to trial on these charges. The record does not show that Applicant was ever correctly advised
of the punishment range applicable to the offense, and therefore his decision to forgo a trial and
plead guilty cannot be said to have been knowingly and voluntarily made.
Relief is granted. The judgment in Cause No. 16,187 in the 115th District Court of Upshur
County is set aside, and Applicant is remanded to the custody of the Sheriff of Upshur 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: May 20, 2015
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