              IN THE COURT OF CRIMINAL APPEALS
                          OF TEXAS
                                          NO. AP-75,929



                EX PARTE JOHNNY VALENTINE MCCOY, Applicant



          ON APPLICATION FOR A WRIT OF HABEAS CORPUS
   CAUSE NO. 06-10-29714-CR(1) IN THE 221 ST JUDICIAL DISTRICT COURT
                     FROM MONTGOMERY 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 writ of habeas corpus. Ex parte

Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant pleaded guilty to felony driving

while intoxicated, and was sentenced to eight years’ imprisonment. He did not appeal his

conviction.

       Applicant contends that his plea was involuntary because Applicant pleaded guilty under the

erroneous belief that he was eligible for and would be considered for release on “shock” probation

after he had served 75 days in prison.
       Trial counsel and the prosecutor have both filed affidavits with the trial court. Based on

those affidavits, the trial court determined that Applicant’s plea was not knowingly and voluntarily

entered, because he, his trial counsel, and the prosecutor all erroneously believed that Applicant was

eligible for shock probation. It was not until Applicant had served 75 days in prison, and had been

brought back so that the trial court could consider shock probation, that the parties realized that

Applicant was ineligible for shock probation because he had previously been convicted of a felony

for which he had served time in the penitentiary. The trial court finds that Applicant would not have

pleaded guilty to this charge had he known that he was not eligible for shock probation. 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. 06-10-09714-CR(1) in the 221st Judicial

District Court of Montgomery County is set aside, and Applicant is remanded to the trial court to

answer the charge against him.

       Copies of this opinion shall be sent to the Texas Department of Criminal Justice–Correctional

Institutions Division and Pardons and Paroles Division.



Delivered: June 4, 2008
Do Not Publish
