             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                          NO. AP-76,505



                       EX PARTE DAVID CARL SMITH Applicant



               ON APPLICATION FOR A WRIT OF HABEAS CORPUS
                CAUSE NO. 10161JD IN THE 1 ST DISTRICT COURT
                           FROM JASPER 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 was convicted of aggravated

assault with a deadly weapon and sentenced to ten years’ imprisonment. The Ninth Court of Appeals

affirmed his conviction. Smith v. State, 09-07-368-CR (Tex. App.–Beaumont, Oct. 8, 2008) (not

designated for publication).

       Applicant pleaded guilty pursuant to a plea agreement that called for six years’ deferred

adjudication community supervision following successful completion of substance abuse felony
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punishment (SAFP). After Applicant was psychologically discharged from the substance abuse

felony punishment facility (SAFPF) he was adjudicated guilty for failing to successfully complete

SAFP. Applicant contends, inter alia, that his plea was involuntary because his participation in a

SAFPF was impossible due to his mental health diagnosis and condition. We remanded this

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

       The trial court held a live hearing and issued findings of fact and conclusions of law

recommending that relief be denied. The trial court concluded that applicant’s psychological

discharge from the SAFPF “was due to Applicant’s own conduct or behavior while at SAFPF.” This

finding is not supported by the record from the adjudication hearing which contains extensive

testimony from Dr. Thomas Crews, Applicant’s primary counselor at the SAFPF. Dr. Crews’s

testimony makes plain that Applicant was discharged not for his actions while at the SAFPF, but for

the fact that Applicant’s particular diagnosis made him incompatible with housing and treatment in

a SAFPF.

       Participation and successful completion of the substance abuse felony punishment was an

affirmative element of Applicant’s plea bargain, performance of which was impossible due to

Applicant’s mental health diagnosis. Applicant is entitled to relief. Ex parte Bunton, 623 S.W.2d

418, 419 (Tex. Crim. App. 1981).

       Relief is granted. The judgment in Cause No. 10161JD in the 1st Judicial District Court of

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

to answer the charges against him .

       Copies of this opinion shall be sent to the Texas Department of Criminal Justice–Correctional

Institutions Division and Pardons and Paroles Division.
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Delivered: March 2, 2011
Do Not Publish
