









IN THE COURT OF CRIMINAL APPEALS
OF TEXAS





NO. WR-79,313-01


EX PARTE ZIMMERRICK ZELLRELLE SPENCER, Applicant





ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 18004A IN THE 2ND DISTRICT COURT

FROM CHEROKEE 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 a writ of habeas corpus.  Ex parte
Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967).  Applicant originally pleaded guilty to assault
with family violence, in exchange for a ten-year probated sentence.  He later pleaded "true" to
violating the terms of his community supervision.  His community supervision was revoked and the
sentence reformed to four years' imprisonment.  He waived his right to appeal.
 Applicant contends that his trial counsel rendered ineffective assistance because counsel
allowed Applicant to plead "true" at the revocation proceedings with the understanding that he would
receive shock probation after he had served at least 180 days in TDCJ.  Under Article 42.12, Section
6(a) of the Texas Code of Criminal Procedure, the trial court may place a defendant on shock
probation before the expiration of 180 days from the date the execution of the sentence actually
begins.
	In this case, the record reflects that trial counsel filed a motion for shock probation in
January, 2013, in which he argued that Applicant's sentence in this case did not actually begin until
July 5, 2012.  The trial court held a hearing on the motion on January 7, 2013.  On February 4, 2013,
the trial court apparently determined that it had lost jurisdiction to grant Applicant shock probation,
and therefore took no action.
	Trial counsel filed an affidavit with the trial court.  Based on that affidavit, the trial court
determined that trial counsel's representation was deficient in both incorrectly calculating the 180-day period and in believing that the trial court retained jurisdiction beyond 180 days from the date
the execution of the sentence actually began.  Applicant is entitled to relief.  Ex parte Huerta, 692
S.W.2d 681 (Tex. Crim. App. 1985).
	Relief is granted.  The judgment revoking community supervision in Cause No. 18004A in
the 2nd  District Court of Cherokee County is set aside, and Applicant is remanded to the custody
of the Sheriff of Cherokee County to answer the charges as set out in the motion to revoke his
community supervision.  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: May 15, 2013
Do not publish
