             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 9 TH DISTRICT COURT
                       FROM MONTGOMERY 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 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
Do Not Publish
