             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                         NO. WR-78,099-01


                         EX PARTE GUADALUPE LOPEZ, Applicant


               ON APPLICATION FOR A WRIT OF HABEAS CORPUS
           CAUSE NO. 10-10-06789-MCRAJA IN THE 365TH DISTRICT COURT
                            FROM MAVERICK 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 was convicted of possession of

marihuana and sentenced to ten years’ imprisonment. He did not appeal his conviction.

        Applicant contends that his trial counsel rendered ineffective assistance because counsel

abandoned the negotiated cap on sentencing and argued for shock probation without determining

whether Applicant was eligible for release to shock probation.

        The trial court has determined that trial counsel, retained for sentencing, did not know that

Applicant was ineligible for shock probation, and that he did not review the Code of Criminal
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Procedure’s requirements for shock probation before arguing for the same at sentencing. The trial

court also found that, had counsel not pursued shock probation in exchange for an abandonment of

the previously negotiated cap, the trial court would not have exceeded that cap in sentencing

Applicant. We find that counsel rendered ineffective assistance. Relief is granted. The sentence in

Cause No. 10-10-06789-MCRAJA in the 365th District Court of Maverick County is set aside, and

Applicant is remanded to the custody of the Sheriff of Maverick County for re-sentencing in

accordance with the original plea agreement, which the trial court is ordered to re-instate. 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: March 12, 2014
Do not publish
