









IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. AP-75,275


EX PARTE EDWIN KINDELL THOMAS, Applicant





ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 11,903 IN THE 21st DISTRICT COURT

OF BURLESON COUNTY



 Per curiam.


O P I N I O N



	Appellant was convicted of possession of less than one gram of cocaine and punishment
was assessed at confinement for fourteen years after Applicant was found to be a habitual
offender.  No appeal was taken from this conviction.
	Applicant contends that his plea was involuntary because it was pursuant to an agreement
that this sentence would be concurrent to a sentence imposed in federal court, and the federal
sentence is not being run concurrently.  The trial court has found that Applicant's plea agreement
included a provision that this sentence would run concurrently with his federal sentence, but that
sentence is not running concurrently.  The trial court also concludes that Applicant's plea was not
involuntary because if he had not agreed to the plea offer he was facing a possible sentence of 25
years to life in another cause.  However, the only evidence in this record to support that
conclusion is the State's intent to prosecute Applicant for a more serious offense unless he agreed
to plead guilty, which is not sufficient to rebut the presumption that a plea entered pursuant to an
agreement is involuntary if all elements of that agreement cannot be performed.  See Ex parte
Huerta, 692 S.W.2d 681 (Tex. Crim. App. 1985).
	Therefore, Applicant is entitled to relief.  The judgment in cause number 11,903 in the
21st Judicial District Court of Burleson County is set aside, and Applicant is remanded to answer
the charges against him.

DELIVERED: October 26, 2005
DO NOT PUBLISH
