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 the offense of endangering a child, and was sentenced to eighteen months' state jail imprisonment. She did not appeal her conviction.

Applicant contends that her conviction and sentence is illegal, because the offense to which she pleaded did not constitute a criminal act as charged. Applicant was charged with endangering her unborn son by ingesting controlled substances while pregnant. Tex. Pen. Code § 22.041. However, after her conviction, the State discovered that the offense charged does not apply to conduct charged as having been committed against an individual who is an unborn child if the conduct is committed by the mother of the unborn child. Tex. Pen. Code § 22.12.

The State has agreed not to oppose Applicant's writ of habeas corpus to set aside this conviction. The trial court had entered findings of fact and conclusions of law, concluding that Applicant is entitled to relief.

Relief is granted. The judgment in Cause No. CR-05L-209 in the 22nd Judicial District Court of Deaf Smith County is set aside, and Applicant is remanded to the trial court to answer the charge against her.

Copies of this opinion shall be sent to the Texas Department of Criminal Justice-Correctional Institutions Division and Pardons and Paroles Division.

Delivered: December 6, 2006

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