             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                           NO. AP-76,893


                      EX PARTE OSCAR EDUARDO RIOJAS, Applicant


                ON APPLICATION FOR A WRIT OF HABEAS CORPUS
             CAUSE NO. 2010-CRR-572-D3 IN THE 341ST DISTRICT COURT
                              FROM WEBB 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 robbery and was

sentenced to five years’ imprisonment. He did not appeal the conviction.

        The writ record shows that Applicant pleaded guilty under a plea agreement in exchange for

the State’s recommendation of a five-year sentence with credit for eighteen months. The trial court

sentenced Applicant to the five years agreed upon and awarded pre-sentence jail-time credit from

the date of the offense to the date of sentencing, which amounts to five months and twenty-two days,
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but it could not award credit for the entire eighteen months agreed upon because the additional time

to have been credited was never served in connection with this offense. Applicant complains his

guilty plea was therefore involuntary because the plea agreement was not enforceable regarding the

amount of time to be credited against the five-year sentence.

       This Court has held that a plea is involuntary where the provisions of the plea agreement or

bargain are unenforceable, and this is true even though the State or the trial court never had the

authority to ensure compliance with the plea agreement. Ex parte Austin, 746 S.W.2d 226, 227-229

(Tex.Crim.App. 1988). The appropriate relief in such a situation is either specific enforcement of

the agreement or withdrawal of the plea, depending upon the circumstances of the case. Id. Because

Applicant cannot be awarded pre-sentence jail-time credit that would extend to a date before the date

the offense was committed, see Ex parte Hayward, 711 S.W.2d 652, 656 (Tex.Crim.App. 1986), the

appropriate remedy is to permit Applicant to withdraw his guilty plea.

       Relief is granted. The judgment in Cause No. 2010-CRR-572-D3 in the 341st District Court

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

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: October 10, 2012
Do not publish
