Crow, Timmie Gene

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR- 57,874-11

EX PARTE TIMMIE GENE CROW , Applicant

ON APPLICATION FOR WRIT OF HABEAS CORPUS

CAUSE NUMBER 047458-D IN THE 336TH

JUDICIAL DISTRICT COURT GRAYSON COUNTY

Per curiam.

O R D E R

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 burglary of a

habitation with intent to commit theft and sentenced to twenty-five years' imprisonment. There was

no direct appeal.

Applicant contends that he pleaded guilty to and was convicted of a second-degree felony

offense but that T.D.C.J. and the Texas Board of Pardons and Paroles (Board) regard his conviction

as a conviction for a first-degree felony burglary offense and therefore they consider him to be

ineligible for discretionary mandatory supervision release. See Tex. Gov't Code §§ 508.147,

508.149; See Ex parte Mabry , 137 S.W.3d 58 (Tex. Crim. App. 2004) (Section 508.149 bars

mandatory supervision for inmates who are serving a sentence for a first-degree felony for burglary

under Section 30.02 of the Penal Code). He also contends that T.D.C.J. and the Board consider the

fact that the conviction is a first-degree felony when reviewing him for parole release.

A review of the current habeas record shows that Applicant's conviction in cause number

047458 from the 336th Judicial District Court of Grayson County for burglary of a habitation with

intent to commit theft should have been classified as a second-degree felony, but the judgment

indicates the offense of conviction was a first-degree felony. See Ex parte Crow, No. WR-57,874-04

(Tex. Crim. App., June 7, 2006). The offense should have remained a second-degree felony even

though a prior conviction alleged for enhancement increased the sentencing range to that of a first-degree felony. See Tex. Penal Code §§ 12.42 (b); 30.02 (a), (c); see also, e.g., Garland v. State ,

170 S.W.3d 107 (Tex. Crim. App. 2005) (discussing enhancement provision).

In dismissing Applicant's previous habeas application, this Court indicated that Applicant

should pursue relief by filing a motion for a nunc pro tunc judgment with the district clerk of the

convicting court. Ex parte Crow, No. WR-57,874-04 (Tex. Crim. App., June 7, 2006). The current

habeas record does not reflect whether the trial court received and ruled on such a motion. However,

an opinion from the intermediate court of appeals indicates that Applicant may have attempted to

correct the judgment by filing such a motion. See In re. Crow, No. 05-07-00409-CR (Tex. App. -

Dallas, April 30, 2007). The appellate court denied leave to file Applicant's mandamus application

because Applicant had not named the correct judge as the respondent and he had not complied with

rules of appellate procedure, including a requirement to provide copies of the judgment and motion

at issue. See Id.

A writ of habeas corpus does not lie to correct an inaccurate judgment. Applicant should

raise the instant claim in a motion for nunc pro tunc judgment, properly filed with the district clerk

of the convicting court. If the trial court refuses to rule, Applicant should raise the claim in a

properly filed mandamus application to the intermediate court of appeals, and then, if appropriate,

in a properly filed mandamus application to this Court. See, e.g., Ex parte Ybarra, 149 S.W.3d 147

(Tex. Crim. App. 2004).

If the convicting court finds a clerical error in the judgment of conviction, that court may

enter a nunc pro tunc judgment to correct it, without regard to whether a party has properly filed a

motion for nunc pro tunc judgment.

This application is dismissed.

FILED: July 2, 2008

DO NOT PUBLISH