             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                           NO. AP-76,276


                       EX PARTE JAMES ALVIN HOPSON, Applicant


               ON APPLICATION FOR A WRIT OF HABEAS CORPUS
           CAUSE NO. FR 29355-B IN THE 27TH JUDICIAL DISTRICT COURT
                              FROM BELL 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 writ of habeas corpus. Ex parte

Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant pleaded guilty to escape, and was

sentenced to life imprisonment. He did not appeal his conviction.

       Applicant filed a previous writ of habeas corpus challenging this conviction on the basis of

an improperly-entered affirmative deadly weapon finding. This Court granted relief pursuant to that

writ, insofar as removing the affirmative deadly weapon finding from the judgment. However, this

Court did not allow Applicant to withdraw his plea. This is Applicant’s second writ of habeas
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corpus challenging this particular conviction.

       In this writ, Applicant contends, inter alia, that his trial counsel rendered ineffective

assistance because counsel failed to correctly advise him of the range of punishment applicable to

this offense, and allowed him to plead guilty to an improperly enhanced charge, rendering his guilty

plea involuntary. The indictment in this case charged Applicant with escape using a deadly weapon,

a second degree felony. The indictment also contained an enhancement allegation, which elevated

the punishment range to that of a first degree felony. However, the conviction used to enhance to

first degree punishment range was the same conviction alleged as an element of the offense. This

double use of the same conviction was improper. See Mc Williams v. State, 782 S.W.2d 871, 876

(Tex. Crim. App. 1990).

       Applicant’s trial counsel has filed an affidavit, in which he concedes that the enhancement

was improper. However, because of the passage of time, counsel has no independent recollection

of this case and is unable to explain why this matter was overlooked. Counsel states his belief that

Applicant should have been subject to a maximum punishment in this cause of twenty years’

imprisonment.

       This Court remanded to the trial court to determine whether there was any documentation

indicating that Applicant was properly admonished as to the correct punishment range for this

offense. After remand, the trial court finds that it is the common practice in Bell County to orally

admonish the defendant as to the applicable punishment range, and that no written admonishments

could be located in this case. The transcript of the plea hearing indicates that Applicant was not

orally admonished as to the correct range of punishment for this charge.

       This Court also asked the trial court to determine whether Applicant had other final felony
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convictions that could have been used to enhance his punishment in this case. The trial court has

determined that Applicant did not have other prior felony convictions that could have been used in

place of the improperly-used murder conviction. Therefore, had Applicant elected to plead not guilty

and take this case to trial, he could not have been properly convicted of first degree felony escape.

       We find that Applicant has made a prima facie showing of actual innocence with respect to

the charge of first degree escape, allowing this Court to consider Applicant’s claims that his trial

counsel was ineffective and his plea involuntary in this subsequent application. See Ex part Knipp,

236 S.W.3d 214 (Tex. Crim. App. 2007). Because Applicant was not properly admonished of the

correct punishment range for this charge, and because he was allowed to plead guilty to the

improperly-enhanced charge, his plea was not knowingly and voluntarily entered. We find,

therefore, that Applicant is entitled to withdraw his plea.

       The judgment of conviction in Cause No. FR 29355-B from the 27th Judicial District Court

of Bell County is hereby set aside, and Applicant is remanded to the custody of the Sheriff of Bell

County to answer the charge. Copies of this opinion shall be sent to the Texas Department of

Criminal Justice--Correctional Institutions Division and Pardons and Paroles Division.




Delivered: January 27, 2010
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