EX PARTE MARK RUSSELL MCKEE (other)

OF TEXAS

NO. AP-76,262

EX PARTE MARK RUSSELL MCKEE, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. C-34,147 IN THE 244TH DISTRICT COURT

FROM ECTOR 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 pleaded guilty pursuant to a plea bargain, was convicted of burglary of a habitation, and sentenced to ten years imprisonment. He did not appeal his conviction.

Applicant contends that his plea was involuntary because the plea agreement cannot be followed. We remanded this application to the trial court for findings of fact and conclusions of law.

The plea papers, admonishments, judgment and trial transcripts all reflect that the plea agreement specifically included the provision that this sentence would run concurrently with Applicant s ten year federal sentence imposed in December 2006. The federal judgment requires and specifically states that the federal sentence is to begin when the state sentence expires. The terms of Applicant s plea bargain were not met, therefore 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. C-34,147 in the 244th Judicial District Court of Ector County is set aside, and applicant is remanded to the custody of the Sheriff of Ector 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 Pardons and Paroles Division.

Delivered: November 18, 2009

Do Not Publish