             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                          NO. AP-75,956



                    EX PARTE JOSE ANTONIO JIMENEZ, Applicant



           ON APPLICATION FOR A WRIT OF HABEAS CORPUS
      CAUSE NO. W00-70595-S IN THE 282 ND JUDICIAL DISTRICT COURT
                        FROM DALLAS 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 entered an open plea of guilty to

injury to a child, and was sentenced by the trial court to twenty years’ imprisonment. The Fifth

Court of Appeals affirmed his conviction. Jimenez v. State, No. 05-01-00738-CR (Tex. App. –

Dallas, June 20, 2002, pet. ref’d.)

        Applicant contends, inter alia, that he was indicted for and pleaded guilty to a third degree

felony. He argues that he should have been sentenced to a maximum of ten years’ imprisonment for
this offense, but that as a result of a misunderstanding about the applicable sentencing range, he

received twenty years’ imprisonment instead. Applicant argues that his sentence is illegal. This

Court dismissed his previous application raising the same claim as a subsequent application barred

by Section 4 of Article 11.07 of the Texas Code of Criminal Procedure, because Applicant had filed

a previous writ of habeas corpus challenging the same conviction, and had not raised this issue in

that writ.

        This Court has determined that Applicant’s unauthorized sentence of twenty years for a third-

degree felony does fall within the exception to the Section 4 bar described within Section 4(a)(2).

That section permits consideration of a subsequent application if, by a preponderance of the

evidence, but for a violation of the U.S. Constitution, no rational juror could have found the

applicant guilty beyond a reasonable doubt. In this case, but for a denial of due process, no rational

juror could have found Applicant guilty of second degree injury to a child (as opposed to third degree

injury to a child).

        Accordingly, relief is granted. The sentence in Cause No. W00-70598 in the 282nd Judicial

District Court of Dallas County is set aside, and Applicant is remanded to the trial court for

sentencing in accordance with this opinion. Copies of this opinion shall be sent to the Texas

Department of Criminal Justice–Correctional Institutions Division and Pardons and Paroles Division.



Delivered: July 2, 2008
Do Not Publish
