











IN THE COURT OF CRIMINAL APPEALS
OF TEXAS



NO. AP-75,938




EX PARTE ERNEST EUGENE DEFOOR, Applicant




ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 06-07-06501-CR IN THE 9TH DISTRICT COURT
FROM MONTGOMERY 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 writ of habeas corpus.  Ex parte
Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967).  Applicant was convicted of driving while
intoxicated and sentenced to five years’ imprisonment.  He did not appeal his conviction. 
            Applicant contends that his sentence is illegal because one of the previous driving while
intoxicated convictions used to enhance his offense to a felony was a successfully completed
probation from 1976.  Applicant also contends that his counsel was ineffective for failing to research
the law and for allowing him to plead guilty to a felony when the offense was properly a
misdemeanor.
            Trial counsel filed an affidavit with the trial court.  Based on that affidavit and the record
regarding the prior offenses, the trial court determined that counsel was ineffective and that
Applicant’s sentence is illegal.  Applicant is entitled to relief.  Ex parte Serrato, 3 S.W.3d 41 (Tex.
Crim. App. 1999).
            Relief is granted.  The judgment in Cause No. 06-07-06501-CR in the 9th  Judicial District
Court of Montgomery County is set aside, and Applicant is remanded to the trial court to answer the
charge against him.
            Copies of this opinion shall be sent to the Texas Department of Criminal Justice–Correctional
Institutions Division and Pardons and Paroles Division.
 
Delivered: June 11, 2008
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