              IN THE COURT OF CRIMINAL APPEALS
                          OF TEXAS
                                         NO. WR-41,082-04


                      EX PARTE LEROY WILLIAM SMITH, Applicant


                 ON APPLICATION FOR A WRIT OF HABEAS CORPUS
                CAUSE NO. 2011CR9630 IN THE 437TH DISTRICT COURT
                              FROM BEXAR 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 pleaded guilty to possession of a

controlled substance, and was sentenced to three years’ imprisonment. He did not appeal his

conviction.

        Applicant contends, inter alia, that his plea was involuntary because he pleaded “true” to two

prior sequential felony convictions, which had the effect of enhancing the punishment range for this

state jail felony to that of a second degree felony. Applicant alleges that one of the two prior felony

convictions was not final at the time he committed the primary offense, because it was still on
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appeal. We remanded this application to the trial court for findings of fact and conclusions of law

as to whether Applicant had other prior felony convictions which could have been used in place of

the non-final conviction.

       The trial court appointed habeas counsel and conducted a live habeas hearing. The trial court

finds that Applicant does not have any other final felony conviction which could have been used to

enhance his punishment to that of a second degree felony, and recommends that relief be granted.

Applicant is entitled to relief. Ex parte Huerta, 692 S.W.2d 681 (Tex. Crim. App. 1985).

       Relief is granted. The judgment in Cause No. 2011CR9630 in the 437th District Court of

Bexar County is set aside, and Applicant is remanded to the custody of the Sheriff of Bexar County

to answer the charges as set out in the indictment. 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: May 8, 2013
Do not publish
