             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                          NO. AP-76,022



               EX PARTE CHRISTOPHER SHAWN KELLY, Applicant



           ON APPLICATION FOR A WRIT OF HABEAS CORPUS
        CAUSE NO. 980752-A IN THE 184 TH JUDICIAL 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 writ of habeas corpus. Ex parte

Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant pleaded guilty in a single

proceeding to five different charges, each enhanced by prior sequential felony convictions, and was

sentenced to thirty-three years’ imprisonment in each case, to be served concurrently. In this

particular cause, Applicant pleaded guilty to attempting to take a weapon from a police officer,

enhanced by two prior sequential felonies. He did not appeal his conviction.

       Applicant contends, inter alia, that his plea was involuntary because his trial counsel failed
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to investigate the validity of the prior convictions used to enhance each of his five charges. Although

this claim is without merit, counsel has provided an affidavit in which he concedes that he advised

Applicant incorrectly as to the applicable punishment range for this charge of attempting to take a

weapon from a police officer. This offense is a state jail felony, enhanced by prior sequential felony

convictions making the applicable punishment range for this offense two to 20 years’ imprisonment.

The other four charges were all felonies, enhanced by prior sequential felony convictions to habitual

felony punishment range of 25 to 99 years’ or life imprisonment. Although counsel negotiated a

“package” plea for all five charges, with the sentences to run concurrently, the thirty-three year

sentence in this cause is unauthorized. Based on counsel’s affidavit, the trial court determined that

Applicant is entitled to relief with respect to this cause only. Ex parte Huerta, 692 S.W.2d 681 (Tex.

Crim. App. 1985).

       Relief is granted. The judgment in Cause No. 980752-A in the 184th Judicial 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.

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

Institutions Division and Pardons and Paroles Division.



Delivered: October 15, 2008
Do Not Publish
