             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                          NO. AP-76,095



                   EX PARTE JOSE GARCIA ARREAGA, Applicant



               ON APPLICATION FOR A WRIT OF HABEAS CORPUS
                CAUSE NO. 66680-34 IN THE 327 th DISTRICT COURT
                           FROM EL PASO 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 injury to an

elderly individual and sentenced to twenty years’ imprisonment. He did not appeal his conviction.

       Applicant contends that he was indicted for and pleaded guilty to a third degree felony. He

argues that he should have been sentenced to a maximum of ten years’ imprisonment for this offense,

but he received twenty year’s imprisonment instead. Applicant argues that his sentence is illegal.

This Court dismissed his previous application raising the same claim as a subsequent application
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barred by Section 4 of Article 11.07 of the Texas Code of Criminal Procedure, because Applicant

had filed a previous writ of habeas corpus challenging the same conviction, and had not raised this

issue in that writ.

        This Court has determined that Applicant’s unauthorized sentence of twenty years for a third-

degree felony does fall within the exception to the Section 4 bar described within Section 4(a)(2).

That section permits consideration of a subsequent application if, by preponderance of the evidence,

but for a violation of the U.S. Constitution, no rational juror could have found the applicant guilty

beyond a reasonable doubt. In this case, but for a denial of due process, no rational juror could have

found Applicant guilty of a first degree injury to an elderly individual (as opposed to third degree

injury to an elderly individual).

        Relief is granted. The judgment in Cause No. 66680-34 in the 327th Judicial District Court

of El Paso County is set aside, and Applicant is remanded to the custody of the Sheriff of El Paso

County to be sentenced in accordance with this opinion.

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

Institutions Division and Pardons and Paroles Division.



Delivered: February 4, 2009
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