             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                    NOS. AP-76,681, AP-76,682, AP-76,683, AP-76,684



                   EX PARTE DWAINE ALLEN COLLIER Applicant



          ON APPLICATIONS FOR WRITS OF HABEAS CORPUS
      CAUSE NO. 1204040 IN THE 230 TH JUDICIAL DISTRICT COURT,
    CAUSE NOS. 789216 & 790723 IN THE 174TH JUDICIAL DISTRICT, AND
       CAUSE NO. 852645 IN THE 337 TH JUDICIAL DISTRICT COURT
                        FROM HARRIS 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 these applications for writ of habeas corpus. Ex parte

Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). In Cause No. 1204040, Applicant entered an

open plea of guilty to engaging in organized criminal activity, and was sentenced as a habitual felony

offender to twenty-five years’ imprisonment. The Fourteenth Court of Appeals dismissed his appeal

as untimely filed. Collier v. State, No. 14-10-00991-CR (Tex. App. – Houston [14th Dist.],

November 4, 2010).
                                                                                                     2

       In his -02 application challenging the conviction in Cause No. 1204040, Applicant alleged

that his trial counsel was ineffective and his sentence unauthorized, because the prior convictions

used to enhance his sentence in that cause were themselves improperly enhanced. We remanded the

-02 application to the trial court for findings of fact and conclusions of law.

       Trial counsel filed an affidavit with the trial court. While the -02 application was on remand,

Applicant filed additional applications challenging three of his prior convictions in the -03, -04, and

-05 applications. The parties submitted agreed findings of fact on all four applications, which the

trial court adopted. The trial court finds that Applicant’s prior convictions in Cause Nos. 789216

and 790723 were both improperly enhanced using one prior state jail felony and one prior third

degree felony. The four-year sentences in exchange for which Applicant pleaded guilty in those

cases were outside the applicable punishment range for un-enhanced state jail felonies.

       Subsequently, one of those infirm convictions was used to enhance the punishment in Cause

No. 852645 from state jail felony to second degree felony punishment range. The six-year sentence

in exchange for which Applicant pleaded guilty in Cause No. 852645 was also outside the applicable

punishment range for an un-enhanced state jail felony. Finally, Cause Nos. 790723 and 852645, both

of which were infirm, were improperly used to enhance Applicant’s punishment range in Cause No.

1204040 from third degree felony to habitual felony punishment range.

       This Court remanded Applicant’s -05 application, in which he challenged Cause No. 852645,

to the trial court for further findings of fact on September 14, 2011. On October 17, 2011, the parties

filed an agreed motion requesting clarification of the correct punishment range applicable in that

case. In light of the agreed motion, we acknowledge that the remand in the -05 application was

unnecessary. Applicant is entitled to relief in all four cases. Ex parte Huerta, 692 S.W.2d 681 (Tex.
                                                                                                   3

Crim. App. 1985). Applicant was admonished as to incorrect punishment ranges and given

sentences outside of the correct punishment range for each offense. Relief is granted. The

judgments in Cause No. 1204040 in the 230th Judicial District Court, Cause Nos. 789216 and 790723

in the 230th Judicial District Court, and Cause No. 852645 in the 174th Judicial District Court of

Harris County are set aside, and Applicant is remanded to the custody of the Sheriff of Harris County

to answer the charges as set out in the indictments. The trial courts shall issue any necessary bench

warrants 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: November 9, 2011
Do Not Publish
