             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                        NO. WR-75,992-01


                    EX PARTE LUIS ALBERTO JARAMILLO, Applicant


                 ON APPLICATION FOR A WRIT OF HABEAS CORPUS
                 CAUSE NO. 57,842-D IN THE 320TH DISTRICT COURT
                            FROM POTTER 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 was convicted of possession of a

controlled substance and sentenced to seven years’ imprisonment. The Seventh Court of Appeals

affirmed his conviction. Jaramillo v. State, No. 07-09-0105-CR (Tex. App.–Amarillo Jan. 20, 2010)

(unpublished).

       Applicant was a passenger in a truck that was stopped by police attempting to serve a grand

jury subpoena. After the driver consented to a search, paraphernalia and controlled substances were

found in the truck and, later, on Applicant’s person. Counsel waived any objections to the stop when

the controlled substances were admitted into evidence. This case was remanded for findings and
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conclusions addressing Applicant’s contentions that counsel was ineffective for not filing a written

pre-trial motion to suppress and then waiving his oral challenge to the legality of the traffic stop. On

remand, the trial court agreed with counsel’s assertion that he did not believe the stop was illegal

because peace officers are authorized by the Code of Criminal Procedure to serve grand jury

subpoenas.

        An automobile stop must be “reasonable” under the Fourth Amendment and the “decision

to stop an automobile is reasonable where the police have probable cause to believe that a traffic

violation has occurred.” Whren v. United States, 517 U.S. 806, 810 (1996). An investigatory stop

requires “a reasonable suspicion, based on objective facts, that the individual is involved in criminal

activity.” Brown v. Texas, 443 U.S. 47, 51 (1979). The police testified unequivocally at trial that the

truck was stopped solely to serve a grand jury subpoena and was not based on reasonable suspicion

or probable cause. After a review of the record, we find that counsel erred and Applicant was harmed

by the errors. Strickland v. Washington, 466 U.S. 668 (1984); State v. Mazuca, 375 S.W.3d 294,

296–97 (Tex. Crim. App. 2012). Applicant is entitled to relief.

        Relief is therefore granted. The conviction in Cause No. 57,842-D in the 320th District Court

of Potter County is set aside, and Applicant is remanded to the custody of the sheriff of Potter

County to face the charges 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: June 26, 2013

Do not publish
