## IN THE COU RT O F CR IM IN AL AP PE ALS OF TE XAS
NO. AP -76,276

EXP AR TE JA M ES A LV IN HOP SON , A pplic ant
ON AP P LICATION FOR AWRIT OF HABEAS CORP US CAUSE NO. F R 29355-B IN THE 27 JUDICIAL DISTRICT COURT TH F RO M BELL CO UN TY

P er cur i am . O P I N I O N Pursuant to the provisions of Article 11.07 of the Texas C o d e o f C ri minal Procedure , the cler k of t he trial court transmitt ed to this Court t his application for w rit of habe as cor pus. Ex pa rte Y oung , 418 S.W .2d 824, 826 (Tex. Crim. App. 1967). Applicant plea ded g uilty to esca pe, and w as sentenc ed to life imprisonment. He did not appeal his conviction. Applicant filed a

previous wr it of habea s corpus c halleng ing this conviction on the basis of an improper ly -ente red a ffirmative deadly wea pon finding . This Court gr anted relief pursuant to that
wr it, ins of

ar a s r e mov ingthe a ff

ir ma tiv e de a dly

we a po n f ind ingfr om t

he jud g me nt. Ho we ve r, thi s Court did not allow Applicant to withdraw his plea. T his is Applicant’s seco n d writ of habe as2

corpus c halleng ing this par ticular c onviction. I n this wr it, Applican t co n t ends, int e r a lia , that his trial counsel r ender ed inef fec tive
a ssi sta nc e be c a us e c ouns e l f

a ile d to c or

re c tly a dv ise him

of the ra ng e of punis hme nt a

pp lic a ble to thi s of fe ns e , a nd a llo we d him to ple a d g uil ty to a n im pr op e rl y e nh a nc e d c ha

rg e , r e nd e ri nghis g uil ty plea involuntary
. The indi ctment i n this case char g ed Applicant with esca pe using a dea dly

wea pon,
a sec ond deg ree felony
. The indictment a lso c ontained an e nhance ment alleg ation, which ele vated the punis hme nt r a ng e to t ha t of a fir st de g re e fe lony . Ho we ve r, the c on vic tio n use d to e nh a nc e to fi rs t de g re e punis hme nt r a ng e wa s th e same c on vic tio n a lle g e d a s a n e le me nt o f the of

fe ns e . Thi s double us e of the same c onviction was improper
. Se e Mc W ill iam s v . S

tat e , 782 S.W .2d 871, 876 (Tex. Crim. App. 1990). Applicant’s tria l counsel has f iled an af fidavit, in which he conce des t hat the enha nceme nt was improper . Howeve r, bec ause of the passage of time, counsel ha s no independe nt rec ollection of this case and is unable to explain why this matter was ove rlooked. Counsel states his belief that Ap pli c ant s ho uld

have be e n s ub

je c t to a max imum pu

nis hme nt i n th is c a

us e of tw e nty y e a rs ’ imp ri so nme nt. This Co u rt re m an ded to the trial c ourt to determine w hether there was a

ny documentation ind ic a tin g that Ap pli c a nt wa s pr op e rl y a dmo nis he d a s to the c or re c t punis hme nt range for this of fe ns e . A ft e r r e mand , th e tr ia l c ourt fi nd s that it is the c omm on pr a c tic e in B e ll County to o ra lly
a dmo nis h th e de fe nd a nt a s to the a pp lic a ble punis hme nt r a ng e , a

nd that no wr itt e n a dmo nis hme nts could be located in this case. The transcr ipt of the plea hearingindicates that Applica nt was not orally admonished as to the c orre ct ra ng e of punishment for

this charg e. This Court also asked the trial court to de termine whe ther Applica nt had other f

inal felony3

convictions that could have been use d to enh an ce his punishm ent in this case. The trial court ha s de te rm ine d th a t App lic a nt d id n ot h a ve oth e r p ri or fe lony c on vic tio ns that c ou ld h a ve be e n u se d in pla c e of the imp ro pe rl y -u se d mu

rd e r c on vic tio n. Th e re fo re , h a d Ap p l i c a nt e le c te d to ple a d n ot guil ty and take this case to trial, he could not have been pr operly convicted of

first deg ree felony

esca pe. We find that Applicant has made a pr im a fa c ie sh ow ingof a c tua l inn oc e nc e wi th r e sp e c t to the char g e of first deg ree esca pe, allowing this Court to c onsider Applicant’s claims that hi s trial counsel wa s ineffe ctive and his ple a involuntary in this subs equent a

pplication. See E

x part Knipp , 236 S.W .3d 214 (Tex. Crim. App. 2007). Be cause Applicant was not proper ly admonished of the
corr ect punishment ra

ng e for this ch ar ge, and bec ause he was a llowed to plead guilty to the improperly -enha

nced char g e, his ple a was not know ingly and voluntarily enter ed
. W e find, there fore , that Applicant is entitled to withdraw his plea
. The judg ment of convic tion in C ause N o. F R 2 93 55 -B from the 27th J udicial District Court of B e ll County

is h e re by se t a sid e , a

nd Ap pli c a nt i s r e mand e d to the c us tod y of the She ri ff

of B e ll County to answer

the cha rg e. C o p i es of this opinion shall be sent to the Texas Depar tment of Criminal J ustice-- Correc tional I nstitut ions Division and Pardons and Paroles Division.

Deliver ed: J anuar

y 27, 2010 Do No t Pu

bli sh