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Click here for the full text of this decision FACTS:Applicant David Alan Rich was charged with felony driving while intoxicated. The indictment contained two enhancement paragraphs which alleged prior convictions for two felony offenses, delivery of a controlled substance (Cause No. F-76-10016HL) and injury to an elderly person (cause number 93-42604). In 2002, applicant pleaded guilty to the offense and true to the enhancement paragraphs pursuant to a plea-bargain agreement. The trial court enhanced his punishment under the habitual-offender provision of Texas Penal Code �12.42(d) and imposed a sentence of 25 years’ confinement. No direct appeal was taken. Applicant filed an application for a writ of habeas corpus claiming that he received ineffective assistance of counsel as a result of his attorney’s failure to investigate the prior convictions used for enhancement. In its Findings of Fact and Conclusions of Law, the trial court determined that applicant had not been convicted of a felony for the delivery of a controlled substance offense (cause No. F-76-10016HL) because the charge was reduced to a misdemeanor after a motion for a new trial was granted. Since a misdemeanor conviction had been improperly used to enhance his sentence, the trial court concluded that the sentence itself was illegal. Despite this finding, the trial court determined that trial counsel’s investigation of the prior convictions was reasonable based on the information available and that applicant had received effective assistance of counsel at trial. Subsequently, this court entered an order requiring the trial court to determine whether there were any other prior felony convictions that could have been substituted for the misdemeanor that was improperly used for enhancement. The trial court filed Supplemental Findings of Fact and Conclusions of Law, finding that neither of applicant’s other prior felony convictions could have been properly substituted for the prior misdemeanor conviction. The trial court concluded that applicant’s third-degree felony could have been enhanced to a second-degree felony, at most. The range of punishment for a second-degree felony is 2 to 20 years pursuant to Texas Penal Code �12.42(a)(3). HOLDING:The judgment cause is vacated, and Applicant is remanded to the custody of the sheriff of Denton County to answer the charges set out in the indictment. An illegal sentence is distinguishable from a procedural irregularity or an inaccurate judgment, neither of which warrant relief on a writ of habeas corpus. The fact that the judicial reasoning and determination were correct according to the facts before the court at the time of sentencing does not preclude a finding of illegality at some later date. Although the judge did not make an incorrect determination based on the information before him, the mischaracterization of the offense in the indictment nevertheless resulted in Applicant’s being sentenced in violation of the law. Because the record on appeal would not have shown that Applicant’s sentence was illegal, it is appropriate for him to challenge it by applying for a writ of habeas corpus. Applicant did not forfeit his claim to challenge his illegal sentence by failing to raise it on direct appeal. Applicant did not forfeit his claim by pleading true to the enhancement paragraphs at the plea proceedings. Despite the general rule that a plea of true to an enhancement paragraph relieves the state of its burden to prove a prior conviction alleged for enhancement and forfeits the defendant’s right to appeal the insufficiency of evidence to prove the prior conviction, there is an exception when “the record affirmatively reflects” that the enhancement is itself improper. Although the plea bargain seemed fair on its face when executed, it has become unenforceable due to circumstances beyond the control of the applicant or the state, namely the fact that one of the enhancement paragraphs was mischaracterized in the indictment, resulting in an illegal sentence far outside the statutory range of punishment. Since neither the state nor the trial court has the authority to ensure compliance with a sentence that so greatly exceeds the statutory range of punishment, the proper remedy is to allow applicant to withdraw his plea and remand the case to the trial court, putting both parties back in their original positions before they entered into the plea bargain. Applicant’s incarceration beyond the maximum legal term does not suggest actual innocence of any offense. The court affords relief from his illegal sentence by allowing an exception for his plea of true to the improper enhancement paragraph. OPINION:Meyers, J., delivered the opinion of the Court, in which Price, Keasler, Hervey, and Holcomb, J.J., joined. Womack, J., filed a concurring opinion, in which Johnson and Cochran, J.J., joined. Keller, P.J., concurred. CONCURRENCE:Womack, J., filed a concurring opinion, in which Johnson and Cochran, JJ, joined. “The appropriate analogy is not to a case of unauthorized punishment; it is, I believe, to a case of actual innocence. In such a case, an indictment alleged facts that, if true, would have subjected a defendant to conviction. A court found the facts to be true and entered the conviction authorized by law. It just turns out, on further investigation, that the allegation was not true. We grant relief, not because the conviction was “unauthorized,” but because we have decided that such a conviction denies due process of law. . . . “I hope that when the bench and bar seek to follow the Court’s decision in this case, they will decide to follow the reasoning of the latter half of the opinion.”

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