             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                           NO. AP-76,990


                          EX PARTE ROLANDO GARCIA, Applicant


                 ON APPLICATION FOR A WRIT OF HABEAS CORPUS
                 CAUSE NO. 1344312-A IN THE 174TH 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 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 the third degree

felony offense of possession of marijuana in a quantity of more than five pounds and less than fifty

pounds, and was sentenced to three years’ imprisonment. He did not appeal his conviction.

        Applicant contends that his plea was involuntary because he is actually innocent of the

offense to which he pleaded guilty. The parties have entered agreed findings of fact, which the trial

court has adopted. Apparently, after Applicant had entered his guilty plea, the laboratory testing of

the substance involved in this case were completed, and it was determined that the State could only
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have proved that Applicant possessed a misdemeanor quantity of marijuana. The parties agree that

Applicant would not have pleaded guilty in exchange for a three-year sentence had he known that

the State could only have proved that he possessed a misdemeanor quantity of marijuana.

       Relief is granted. The judgment in Cause No. 1344312 in the 174th District Court of Harris

County is set aside, and Applicant is remanded to the custody of the Sheriff of Harris 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: March 20, 2013
Do not publish
