









IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. AP-75,775


EX PARTE JACOB WAYNE RUSSELL, Applicant





ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. F37680A IN THE 413TH DISTRICT COURT

FROM JOHNSON 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 criminal mischief
and following the revocation of community supervision he was sentenced to six (6) years'
imprisonment.  He did not appeal his conviction. 
	Applicant contends that his sentence is illegal because a prior felony offense was used to
enhance the state jail felony for which Applicant was convicted in this case, when the prior offense
was not available.  The State agrees.
	The trial court has entered an order finding that there are no controverted, previously
unresolved issues of fact material to the legality of Applicant's confinement.  Based on this Court's
independent review of the record, we find that Applicant is entitled to relief. Ex parte Miller, 921
S.W.2d 239 (Tex. Crim. App. 1996).
	Relief is granted.  The judgment in Cause No. F37680 in the 413th Judicial District Court
of Johnson County is set aside, and Applicant is remanded to the custody of the sheriff of Johnson
County to answer the charge against him.
	Copies of this opinion shall be sent to the Texas Department of Criminal Justice-Correctional
Institutions Division and Parole Division.

Delivered: October 3, 2007
Do Not Publish
