
 








IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. AP-75,365


EX PARTE JOHN THEODORE MCELROY, Applicant




ON APPLICATION FOR A WRIT OF HABEAS CORPUS
TRIAL COURT CAUSE NO. 04-03-02184-CR 
IN THE 9TH JUDICIAL DISTRICT COURT
FROM MONTGOMERY COUNTY


 Per Curiam.

O P I N I O N 



 This is a post-conviction application for a writ of habeas corpus forwarded to this
Court pursuant to Tex. Code Crim. Proc.  art. 11.07, § 3, et seq..  Applicant was convicted
of the felony offense of aggravated assault, and punishment was assessed at confinement for
two years.  Applicant's direct appeal was dismissed on Applicant's pro se motion.  McElroy
v. State, 09-04-540-CR (Tex. App.--Beaumont, delivered June 29, 2005)(mem. op.)
	Applicant contends his trial attorney provided ineffective assistance of counsel.  The
State has stipulated that Applicant was provided ineffective assistance by trial counsel.  The
trial court entered findings of fact and conclusions of law finding Applicant's counsel
provided ineffective assistance of counsel.  We agree.  Applicant's trial counsel was provided
an opportunity to respond to the allegations, however, the affidavit he provided did not
address the issues presented.  There are affidavits in the record from the trial prosecutor and
applicant's punishment hearing counsel that establish ineffective assistance of initial trial
counsel. The trial court's findings are supported by the record.
	Relief is granted.  The judgment in cause number 04-03-02184-CR in the 9th Judicial
District Court of Montgomery County is set aside, and Applicant is remanded to the custody
of the sheriff of Montgomery County to answer the charge against him.
	Copies of this opinion shall be sent to the Texas Department of Criminal Justice,
Correctional Institutions Division.
DELIVERED: March 29, 2006
DO NOT PUBLISH
