











IN THE COURT OF CRIMINAL APPEALS
OF TEXAS



NO. AP-76,311




EX PARTE ABEL LEAL MARIN, Applicant




ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. CR-2365-00-E IN THE 275TH JUDICIAL DISTRICT COURT
FROM HIDALGO COUNTY




           Per curiam.

O P I N I O N

            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 to one count of
delivery of a controlled substance in a drug-free zone, three counts of delivery of a controlled
substance, and one count of possession of a controlled substance, and was sentenced to ten years’
probation.  His probation was later revoked, and he was sentenced to eight years’ imprisonment.  He
did not appeal his conviction. 
            Applicant contends, inter alia, that his plea was involuntary and his sentence improperly
enhanced.   
            The trial court determined that the count in the indictment charging Applicant with delivery
of a controlled substance in a drug-free zone should have been a second degree felony, with the
minimum punishment raised from two to seven years’ imprisonment.  Applicant was admonished
that each of the delivery of a controlled substance charges was a first degree felony, when in fact all
three were second degree felonies.  The trial court finds that Applicant is entitled to relief on the
basis of an improperly enhanced charge, and recommends that the case be remanded solely for re-sentencing.  However, in this case Applicant was not properly admonished as to the correct
punishment range for the offenses to which he was pleading guilty.  Therefore, his plea was not
knowingly and voluntarily entered, and the entire plea must be vacated.
            Relief is granted.  The judgment in Cause No. CR-2365-00-E in the 275th Judicial District
Court of Hidalgo County is set aside, and Applicant is remanded to the custody of the sheriff of
Hidalgo 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: March 17, 2010
Do Not Publish
