              IN THE COURT OF CRIMINAL APPEALS
                          OF TEXAS
                                         NO. WR-66,501-02


                             EX PARTE RANDY WILEY, Applicant


                 ON APPLICATION FOR A WRIT OF HABEAS CORPUS
               CAUSE NO. 15-03-03171(1) IN THE 221ST DISTRICT COURT
                          FROM MONTGOMERY 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 with

intent to deliver a controlled substance, to-wit: heroin in an amount of one gram or more but less

than four grams, and was sentenced to eleven years’ imprisonment. He did not appeal his

conviction.

        Applicant contends that his plea was involuntary because after he had pleaded guilty the

evidence in this case was tested and the heroin was found to weigh less than one gram. Possession
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with intent to deliver less than one gram of heroin is a state jail felony, whereas possession with

intent to deliver one gram or more but less than four grams of heroin is a second degree felony.

       The parties have entered agreed findings of fact and conclusions of law, and the trial court

has determined that Applicant’s decision to plead guilty in this case was not a voluntary and

intelligent choice. Applicant is entitled to relief. Ex parte Mable, 443 S.W. 3d 129 (Tex. Crim.

App. 2014).

       Relief is granted. The judgment in Cause No. 15-03-03171-CR in the 221st District Court

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

Montgomery 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: April 6, 2016
Do not publish
