











IN THE COURT OF CRIMINAL APPEALS
OF TEXAS



NO. AP-76,095




EX PARTE JOSE GARCIA ARREAGA, Applicant




ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 66680-34 IN THE 327th DISTRICT COURT
FROM EL PASO 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 injury to an
elderly individual and sentenced to twenty years’ imprisonment. He did not appeal his conviction. 
            Applicant contends that he was indicted for and pleaded guilty to a third degree felony.  He
argues that he should have been sentenced to a maximum of ten years’ imprisonment for this offense,
but he received twenty year’s imprisonment instead.  Applicant argues that his sentence is illegal. 
This Court dismissed his previous application raising the same claim as a subsequent application
barred by Section 4 of Article 11.07 of the Texas Code of Criminal Procedure, because Applicant
had filed a previous writ of habeas corpus challenging the same conviction, and had not raised this
issue in that writ.
            This Court has determined that Applicant’s unauthorized sentence of twenty years for a third-degree felony does fall within the exception to the Section 4 bar described within Section 4(a)(2). 
That section permits consideration of a subsequent application if, by preponderance of the evidence,
but for a violation of the U.S. Constitution, no rational juror could have found the applicant guilty
beyond a reasonable doubt. In this case, but for a denial of due process, no rational juror could have
found Applicant guilty of a first degree injury to an elderly individual (as opposed to third degree
injury to an elderly individual). 
            Relief is granted.  The judgment in Cause No. 66680-34 in the 327th Judicial District Court
of El Paso County is set aside, and Applicant is remanded to the custody of the Sheriff of El Paso
County to be sentenced in accordance with this opinion.
            Copies of this opinion shall be sent to the Texas Department of Criminal Justice–Correctional
Institutions Division and Pardons and Paroles Division.


Delivered: February 4, 2009
Do Not Publish
