82,538-01
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 2/9/2015 2:06:11 PM
Accepted 2/9/2015 3:17:21 PM
ABEL ACOSTA
NO. 82,538-01 CLERK
EX PARTE § IN THE COURT OF RECEIVED
COURT OF CRIMINAL APPEALS
2/9/2015
§ CRIMINAL ABEL ACOSTA, CLERK
APPEALS
AUSTEN JOSEPH ROSS § AUSTIN, TEXAS
MOTION FOR THE COURT TO RECONSIDER
APPLICATION ON ITS OWN MOTION
TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS:
COMES NOW Applicant Austen Joseph Ross, by and through his
undersigned counsel, and pursuant to TEX. R. APP. PROC. 79.2(d) files this motion
for the Court to reconsider the Application on its own motion. In support of this
motion, Applicant would show as follows:
On February 4, 2015, this Court dismissed the Application without written
order due to the sentence being discharged. This Court cited Ex Parte Harrington,
310 S.W.3d 452 (Tex. Crim. App. 2010). However, Harrington expanded the
definition of confinement to encompass collateral consequences, “including the
loss of his job and other suitable employment opportunities; loss of his right to run
for public office; loss of his right to possess firearms; enhanced penalties for any
future convictions; and potential impeachment of his credibility in future judicial
hearings.” 310 S.W.3d at 457.
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Here, Applicant alleged that he was confined due to being incarcerated in the
Travis County Correctional Complex on a charge of Intoxication Manslaughter
(cause number D-1-DC-13-100124 in the 299th Judicial District Court of Travis
County, Texas). In an enhancement paragraph, the indictment in that case alleged
the 2006 third-degree felony conviction that is the subject of the instant
Application. See Amended Memorandum in Support of Application, at Attachment
5, Indictment in D-1-DC-13-100124. This enhancement allegation raised
Applicant’s penalty range from a second-degree felony (2-20 years imprisonment)
to a first-degree felony (5-99 years or life imprisonment). Applicant specifically
alleged the impact of the conviction on his sentencing range as the reason he was
confined for purposes of TEX. CODE CRIM. PROC. ART. 11.07. See Amended
Memorandum, at 3-4; see also Amended Memorandum, Attachment 2, Affidavit of
Austen Joseph Ross.
Although Applicant was convicted of the Intoxication Manslaughter charge
while this Application was pending, the felony conviction that is the subject of this
Application continues to “confine” Applicant by virtue of its potential impact on
parole decisions, as well as its impact on enhanced penalties for future convictions
(e.g., if Applicant is charged with a felony in the future, the 2006 felony
conviction, in conjunction with the 2014 felony conviction, could be used to
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enhance Applicant to a habitual-offender sentencing range of 25 years to life
imprisonment). The Application should be read as alleging that Applicant is
confined by virtue of the enhancement implications of the 2006 felony conviction
that is the subject of the Application.
Furthermore, the State filed an Answer informing the Court that the State
does not oppose the allegations contained in the Application, and it agreed that
relief should be granted. See State’s Answer, at 3. The State’s Answer also
specified that “[t]hough his sentence has discharged, he has now alleged collateral
consequences due to the fact that he is currently charged with intoxication
manslaughter in Travis County and his indictment in that offense has been
enhanced with the third-degree felony offense in this case — subjecting him to a
greater punishment range.” Id.
WHEREFORE, PREMISES CONSIDERED, Applicant prays that this Court
reconsider his Application on its own Motion. Upon reconsideration, Applicant
prays that this Court determine that he is confined by virtue of his 2006 felony
conviction and proceed to consider the underlying claim on its merits.
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Respectfully submitted,
/s/ Christopher M. Perri________
CHRISTOPHER M. PERRI
1504 West Ave.
Austin, Texas 78701
(512) 917-4378
(Fax) 474-8252
chris@chrisperrilaw.com
State Bar No. 24047769
ATTORNEY FOR DEFENDANT
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing Motion for the
Court to Reconsider Application on Its Own Motion was mailed to the Williamson
County District Attorney’s Office on the 9th day of February, 2015.
/s/ Christopher M. Perri___________
CHRISTOPHER M. PERRI
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