             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                          NO. AP-76,128



                     EX PARTE RONALD LEE AKIN, II, Applicant



           ON APPLICATION FOR A WRIT OF HABEAS CORPUS
        CAUSE NO. W9531-2 IN THE 355 TH JUDICIAL DISTRICT COURT
                         FROM HOOD 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 possession of a

controlled substance and sentenced to eighty years’ imprisonment. The Seventh Court of Appeals

affirmed his conviction. Akin v. State, No. 07-05-00238-CR (Tex. App. – Amarillo, December 9,

2005, pet ref’d).

       Applicant contends, inter alia, that his trial counsel rendered ineffective assistance because

counsel failed to transmit a forty-year plea offer to Applicant prior to trial. This Court remanded to
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the trial court to give counsel an opportunity to respond to Applicant’s allegations. The trial court

has obtained affidavits from the trial prosecutor and trial counsel. According to the trial prosecutor’s

affidavit, his file indicates that he made a plea bargain offer of forty years in exchange for

Applicant’s plea of guilty. According to trial counsel’s affidavit, he has no recollection of a forty-

year plea offer being made to Applicant, and no recollection of communicating such an offer to him.

       The trial court has entered findings of fact and conclusions of law after remand, finding inter

alia that Applicant’s claim could have been raised in his previous habeas application, and that this

application is therefore barred by Tex. Code Crim. Proc. art. 11.07 §4. However, Applicant’s

previous writ sought and obtained an out-of-time Petition for Discretionary Review, and was not a

challenge to the conviction invoking the procedural bar of Article 11.07 §4. See Ex parte

McPherson, 32 S.W.3d 860, 861 (Tex. Crim. App. 2000).

       We find, therefore, that trial counsel’s failure to transmit the forty-year plea offer made by

the State to Applicant prior to trial constituted deficient performance, and that Applicant has been

prejudiced by the missed opportunity of accepting such bargain. The appropriate remedy where, as

here, a defendant was deprived of the opportunity to accept a plea offer, is to put him in the position

he would have been in prior to the Sixth Amendment violation resulting from counsel’s

ineffectiveness. Id. at 798.

       Relief is granted. The judgment and sentence in Cause No. W9531-2 from the 355th Judicial

District Court of Hood County is vacated, and Applicant is remanded to the custody of the Sheriff

of Hood 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: April 8, 2009
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