             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.

                                            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 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 His community supervision was revoked and the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
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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
