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A\°QROM\W\X\"S"E viz \-s=»§/ los <\>c¢\é \we~"c~)_s ctr m»t. i\ mp\\>ibe~o \`t<>'l ,` mw eat valcvel~\ 'T\¢\c~»` \'\`c:\. (’ ;LB\vEn A~n affipr Of° b ll:\>\:\t` \\l)' DP\"A 7 ‘<'»¢-\\¢4, '\5 l. o-'~\ §E'w ~~e ra_%§a~c> sears wrech \ esteem-art that r»»v ,;,»:~>/ ease »v~ee: _§<:mle.i.* "¢.<. l -.w\ %m‘ai\)o'ee mg . 'Tw`:tm: 5>1‘@‘:- ml 1_`1;~“<-\ ns E§tl§n \sr>\@».n stark "g, \s\ac)\z_-rms§ vcw `ar»g ';Tr'\crei=~mee»x l nw se emil-l %l§;\‘:l rt "Tl~i\e ear~%\<)*ls_ll 19 %»ti l“OQzE-l\~->t'c)t~) Caseli l “I'\f=.r_~l` 1 C~msa~_\ er Ce~tw\~~r\\u vl*\i’:>c=)>;~a\.s fan ~r-\s_je' t~’c_\m:am C`m,mlr' 5 §=»_y_~;g,-x a m 9 Le-r\er:» §L*i:s@s»~*o ~rt; -n\\< title Q\resw_ Q<:;$»\ Oe;c Wq§“`u”» \._\»t ....... 'M"¢’\Z.~".'i“~ EX Parte Moussazadeh; 361 S.W. 3d 684 (Tex. Crim. App. 2012) ( 11 PAGES ) . We§tiew. 361 S.W.3d 684 (Cite as: 361 S.W.3d 684) Court of Criminal Appeals of Texas. Ex parte Max MOUSSAZADEH, App|icant. Nos. AP-76,439,,AP~74,185. Feb. 15, 2012. Backgro\ind: After pleading guilty to murder, and after his murder conviction was affirmed on appeal, 962 S.W.Zd 261, applicant sought a writ of habeas corpus, contending that his mistaken understanding of parole eligibility based on misinformation coun- sel conveyed to him rendered his guilty plea invol- " "untary. The 232nd District Court,_Harris County, A.D. Azios, J., entered findings o,f` fact supporting relief The Court of Criminal Appeals, 64 S.W.3d '404, denied relief. Applicant filed subsequent habeas`app|ication, and a suggestion for reconsider- ation asking the Court of Crir_ninal Appeals, on its own motion, to reconsider its denial of initial ,. habeas application Holdings: The Court of Criminal Appeals, Johnson ,J., held that: `(1) it would reconsider on its own initiati_ve, ap- plicant s initial habeas application; '(2) question of whether parole eligibility forms an affirmative part or essential element of the plea agreement is not determinative of court's deficient performance inquiry under Str_ic/894.1 197 Habeas Corpus ' 1971V Operation and Ef`fect of Determination;v Res Judicata; Successive Proceedings 197k894 Refusal to Discharge; Subsequent . Applications; Prejudice 197k894':.1 k. 1n general. Most Cited ‘ ` An initial application for a writ of habeas cor- . pus seeking an out-of-time appeal does not consti- 'tt'ite a challenge to the conviction and does not bar subsequent writ applications ¢._. ` 131 Criminal Law 1.10 @273.1(31 l 10 Criminal Law' 1 10XV Pleas 1101<27j Plea of Giriity 110k273.1 Voluntary Character n 1101<273. 1(3) k. Effect ofillegal deten- tion or violation of constitutional rights; iilegally_ acquired evidence MostCited Cases - ' Co'unsels advice can provide assistance so in- effective that .1t renders a guilty plea involuntary. U.S.C».A. Const;/»\mend-."()'. ~ ~ [4] Criminal Law 110 @273.17(3)‘ . . » 110 C'rjiminai Law ll 10XV Pleas , .1 _ /i\..=.m iieen»;=., . 361 S.W.3d 684 (Citc as: 361 S.W.3d 684) "l 10k272 Plea of Guilty l 10k273. l Voluntary Character l 10k273 1(3) k Effect ofillegal deten- tion or violation of constitutional rights; illegally acquired evidence Most Cited Cases A guilty plea is not knowing or voluntary if made as a result of ineffective assistance of coun- Sel. U.S.C.A. Const.Amend. 6. [5] Criminal Law 110 <"7-9273.1(3) 110 Criminal Law l 10XV Pleas 110k272 Plea of Guilty l 10k273.l Voluntary Character t l 10k273.1(3) k. Ef_fect ofillegal deten- tion or violation of constitutional rights; illegally acquired evidence, l\/lost Cited Cases A defendant's decision to plead guilty when based upon erroneous advice of counsel is not done voluntarily and knowingly. [6] Pardon and Parole 284 €,`7~'>42.1 284 Pardon and Parole 28411 Parole y 284k42 Constitutional and Statutory Provi- sions 284k42.l k. In general. Most Cited Cases Prisons 310 €'5\9248 310 Prisons 31011 Prisoners and lnmates 31011(F) Duration of Confinement 310k248 k. Conditional release; com- munity placement Most Cited Cases The statute in effect when the holding offense is committed determines an inmate's eligibility for release on mandatory supervision or parole [7] Pacdon and Parolc 284 @48.1 284 Pardon and Parole 28411 Parole ,284k48 Eligibility for Parole or Parole Con- sideration Page 2 284k48.l k. In general. Most Cited Cases Parole eligibility requirements are direct con- sequences ofa guilty plea because they are a defin- ite and largely automatic result ofa guilty plea. l [8] Pardon and Parole 284 @47 284 Pardon and Parole 28411 Parole 284k45 Authority or Duty to Grant#Parole or Parole Consideration 284k47 k. Discretionary nature Most Cited Cases g Parole attainment is not governed by statute 4 and is granted at the discretion ofthe parole board. [9] Constitu~tional Law 92 @2789 92 Constitutional Law t 92XX111 Ex Post Facto Prohibitions _ 92XXIII('A) Constitutional Prohibitions in General 92k2789 k. Penal laws in general. Most Cited Cases Constitutional Law 92 €/`3332790 92 Constitutional Law 92XXlll Ex Post Facto Prohibitions 92XXIII(A) Constitutional Prohibitions in General 92k2790 k. Punishment in general. Most Cited Cases A law that changes the punishment for a crime after the crime has been committed is an unconsti-_ tutional ex post facto law only if it infiicts a greater punishment than did the previous law. '{'U.S.C.A. Const. Arc. 1, § 10,<>1. 1. ' - [10] Constitutional Law 92 @2789 92 Constitutional Law 92XX111 Ex Post Facto P'rohibitions 92XXIII(A) Constitutional Prohibitions in General ` 92k2789 k. Penal laws in general. Most Cited Cases ©‘2012 Thomson Reuters. No Claim to'Orig. US Gov`. Works. 361 s.w.3d 684 (Cite as: 361 s.w.3d 684) l 10k272 Plea of Guilty 1 10k273.1 Voluntary Character 110k273.1(3) k. Effect ofillegal deten- tion or violation of constitutional rights; illegally acquired evidence Most Cited Cases A guilty plea is not knowing or voluntary if made as a result of ineffective assistance of coun- ' sel. U.S.C.A. Const.Amend. 6. 151 criminal Law 110 §>.=>273.1(3) 110 Criminal Law l 10XV Pleas 110k272 Plea of Guilty l 10k273.l Voluntary Character 110k273.l(3) k. Effect ofillegal deten- tion or violation of constitutional rights; illegally acquired evidence Most Cited Cases A defendant's decision to plead guilty when based upon erroneous advice of counsel is not done voluntarily and knowingly. '[6] Pardon and Parole 284 @42.1 284 Pardon and Parole 28411 Parole 284k42 Constitutional and Statutory Provi- sions 284k42.1 k. ln general. Most Cited Cases Prisons 310 '@248 310 Prisons `_ 31011 Prisoners and Inmates 31011(F~) Duration of Confinement 310k248 k. Conditional release; com- munity placement Most Cited Cases The statute in effect when the holding offense 'is committed determines an inmate's eligibility for release on mandatory supervision or'parole. [7] Pardon and Par,ol_e 284 W48.1 284 Pardon and Parolel 28411 Paroie 284k48 Eligibility for Parole or Parole Con- sideration Page 2 284k48.1 k. In general. Most Cited Cases Parole eligibility requirements are direct con-_ sequences of a-guilty plea because they are a defin- ite and largely automatic result of a guilty plea. [8] Pardon and Parole 284 €=347 284 Pardon and Parole 28411 Parole 284k45 Authority or Duty to Grant Parole or Parole Consideration 284k47 k. Discretionary nature Most Cited Cases _ - . ": ' , ' Parole attainment is not governed by statute ‘ and is granted at the discretion of the parole board. [9] Constitutional Law 92 €=>2789 92 Constitutional Law 92XX111 Ex Post Facto Prohibitions ' 92XX111(A) Constitutional Prohibitions in General - 92k2789 k. Penal laws in general. Most Cited Cases Constitutional Law 92 @2790 92 Constitutional Law 92XX111 Ex Post Facto Prohibitions n 92XXIII(A) Constitutional Prohibitions in General ` z 92k2790 k. Punishment 111 general Most Cited Cases ' A law that changes the punishment for a crime after the crime has been committed is an unconsti- tutional ex post facto law only if it inflicts a greater punishment than did the previous law. ”U. S. C.A Const Art. 1, § 10, cl. l. ‘ 1101 consciturionai Law 92`©-;2789 ' 92 Constitutional Law 92XX111 Ex Post Facto Prohibitions ` _ 92XXII_1(_A) Constitutional Prohibitions in ` General 92k2789 k Penal laws in general Most Cited Cases ©'2012 Thomson Reuters. No Claim to Orig. US Gov. Works.' 361 S.W.3d 684 (Citc as: 361 S.W.3d 684) A statute which mitigates the` rigor of the law b in force at the time a crime was committed cannot be regarded as ex post facto with reference to that crime U.S.C.A. Const. Art. l,§ 10, cl. 1. [11] Criminal Law 110 @1920 110 Criminal_Law 1 10XXX1 Counsel 1 10XXX1(C) Adequacy of Representation _1 10XXX1(C)2 Particuiar Cases and 1ssuss 110k1920 k. Plea. Most Cited Cases The question of whether parole eligibility forms an affirmative part or essential element of the 7 plea agreement is not determinative of the court's deficient performance inquiry under the SIrick/and test for ineffective assistance of counsel; abrogat- ing, Ex parte Evcms, 690 S.W.2d 274. U.S.C.A. Const./\mend. 6. [12] Habeas Corpus 197 €/`=9486(3) 197 Habeas Corpus 19711 Grounds for Relief; Illegality ofRestraint 19711(13) Particular Defects and Authority for Detention in General 197k482 Counsel ., 197k486 Adequacy and Effectiveness of Counsel . v , l97k486(3) k. ~Arraignment and plea, Most Cited Cases To obtain habeas corpus relief on a claim of in- voluntary plea based on counsel's erroneous advice, a habeas corpus applicant must meet both prongs of the Slrickland standard for ineffective assistance of counsel, which are that counsel's performance was -deficient,‘and that a probability exists, sufficient to undermine the court's confidence in the result, that the outcome would have- been different but for counsel's deficient performance; _inithe context of involuntary plea, the “different»outcome” is choos- ing not to plead and instead choosing to go to trial. U.S.C.A. Const.Amend,. 6_ ' 1131'Crin_iinai Law 110 €>=>1882 © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 3 110 Criminal Law . l 10XXX1 Counsel g 1 10XXX1(C)- Adequacy of Representation llOXXXI(C)l In General » 110k1879 standard of affective As-. sistance in General 110k1882 k. Deficient representa- tion in general. Most Cited Cases Counsel's performance is deficient, as neces- sary to establish ineffective assistance if it is shown to have fallen below an objective standard of reasonableness; the constitutionally appropriate level of reasonableness is defined by the practices and expectations of the legal community and pre- vailing professional norms therein U.S.C.A. Const.Amend. 6. 1141 Criminai st 110 <:>1920' 1 10 Criminal Law 1 lOXXXI Counsel _l lOXXXl(C) Adequacy of Representation l 10XXX1(C)2 Particular Cases and Issues 110k1920 k. Plea. Most Cited Cases In situations in which the law is not clear, plea counsel should advise a client that pending criminal _ charges may carry a risk of other serious con- sequences; however, when a serious consequence is truly clear, counsel has an equally clear duty to give correct advice, and both failure to provide correct ` information and providing incorrect information vi- olate that duty. 1151 criminal st 110 €>=31920 1 10 Criminal Law llOXXXI Counsel _ l lOXXXI(C) Adequacy of Representation . 110xxx1(c)2 Particular.oases and issues 110kl920 k. Plea. Most Cited Cases _ Defense counsel's misinformation to murder-- defendant as to his parole eligibility,»on which de- fendant relied in pleading guilty, constituted defi- cient performance, as element of ineffective assist-_ ance; parole eligibility requirements were pre- sumptively mandatory, and counsel provided incor- ua ge “"A " fi'\ e»r§;a,i'rs? 1 Abil` .. -- 361 s.w`.3d 684 (cile asi 361 s.w.3d 684) rect advice U.S.C.A. Const.Amend. 6; Vernon's Ann.Texas C.C.P. art. 42.18(8)(b)(3) (Repealed). 1161 criminal Lew 110'@1920 l 10 Criminal Law 1 10XXX1 Counsel 1 _1 10XXX1(C) Adequacy of Representation 1 10XXX1(C)2 Particular Cases and Issues 1 110k1920 k. Plea. Most Cited Cases _ Defense counsel's misinformation to `murder defendant as to his parole eligibility, on which de- fendant relied in pleading guilty, prejudiced de`- fendant, and thus was ineffective assistance; por- tion of defendant's sentence that had be served be- fore he became eligible for parole was double the portion that he was led to believe he had to serve, and defendant swore in an affidavit that he would not have pled guilty if he had known the actual time he would have to serve U.S.C.A. Const.Amend. 6; Vernon's l Ann,Texas C.C.P. art. 42.18(8)(b)(3) (Repealed). ' ' ` *686 Randy Schaffer, Houston, for Appellant. Andrew J. Smith, Asst. D.A., Houston, Lisa C. McMinn, State's Attorney, Austin, for State. - 0PINION JOHNSON, J., delivered the opinion of the Court in _which_PRICE, WOMACK, KEASLER, HERVEY, COCHRAN, and`ALCALA, JJ., joined Applicant pled guilty to the offense of murder without an agreement for punishment The trial court accepted the plea and sentenced.applicant to seventy-five years' incarceration On direct appeal, ' the court of appeals affirmed the judgment`of the trial court. Mc)ussazadeh v. Slare, 962 S.W.2d 261 (Tex.App.-l-loustoll'[l4th Dist.]l 1998, pet. re`f‘d) ( Mozlssazadeh 1 ).` Thereafter, applicant filed an ap- plication for habeas corpus relief. In a published opinion, we denied relief because applicant ‘Lfailed to prove, by a preponderance of the evidence, that his plea .was induced by a misunderstanding of the applicable parole law which formed an essential- Page 4 element of the plea agreement.” Ex pa)*te Mous- sazadeh, 64 S.W.3d 404,.413 (Tex.Crim.App.2001) , cert. denied, 537 U.S. 813, 123 S.Ct. 74, 154 L.Ed.2d 16 (2002) (' Moussazaa'eh 11, #- AP~74,185). Applicant filed a subsequent applica- tion for writ of habeas corpus, Moussazadeh 1[1, # AP~76,439, that *687 asserts that trial counsel's mistaken advice regarding parole eligibility rendered his plea involuntary. We ordered the sub- sequent application filed and set for submission After_ applicant filed the subsequent application, he also filed a suggestion for reconsideration that asks this Court, on its own motion, to reconsider its de- cision in Moussazadeh II. [1][2] This Court, on its own initiative, may re-. consider a prior denial of habeas corpus relief. TEX.R.APP. P. 79.2(6). we new reconsider, en our own initiative, the claim raised in applicant's second application for writ of habeas corpus, Mous- sazadeh [[, and grant relief. Applicant's sub- ` sequent application Moussazadeh III, is dismissed. FNl. App|icant's first application sought an out-of-time appeal, which we granted. Ex parte Moussazadeh, No. AP~72,200 (Tex.Crim.App. delivered October 25, 1995) (not designated for publication). Such an initial application seeking an out- . of-time appeal does not constitute a chal- lenge to the conviction and does not bar subsequent writ applications; Ex parte McPhersc)n, 32 S.W.3d 860, 861 (Tex.Crim.App.2000). `In Moussazadeh II, we discussed how applic- ant, under indictment for a capital murder commit-' ted on September 12, 1993, pled guilty to the re- duced offense of murder without a sentencing agreement Applicant, a juvenile at the time of the offense, served as “‘look-out” while one of his three co-defendants shot and killed a man during a rob- bery. Moi¢s'sazadell II, 64 S.W.3d at_ 406_07. While 4 initially rejecting the state's offer of a guilty plea to 'the lesser offense of murder, ultimately applicant agreed to plead guilty to murder without a punish- ©'2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 361 S.W.3d 684 (Cite as: 361 S.W.3d 684) ' ment.agreement. 'l`he agreement included applic- ant's promise to. testify at a co-defendant's trial, which he did. Id. at 407-09. During thatstestimony, applicant indicated that he understood that, in pleading guilty to the murder offense and because of parole-eligibility laws', he was facing a signific- antly'lesser term of imprisonment than he` would have faced if convicted of capital murder. ]d. at 408~09. After the co-defendant's trial ended, ap- plicant was sentenced to seventy-five¢years' incar- .ceration without a deadly-weapon finding. Id. at 409. ` ' ` Applicant's claim in his previous writ applica- tion, which we now reconsider, asserted that “counsel's gross misadvice regarding parole eligib- ility rendered applicant's guilty plea involuntary.” He argued that “the matter of parole eligibility was implicitly incorporated in [his] plea agreement.” He also argued that his “guilty plea was involuntary even if the matter of parole eligibility was not im- plicitly incorporated in the plea agreement.” We quote from our opinion irl Moussazadeh']]. It is quite possible that no one i_n this proceed- ing knew that the parole law had changed dramat- ically just 11 days before this robbery-murder. Applicant's parole eligibility is measured by the law in effect on the date'of the offense Under the law effective until September 1, 1993, a person serving a life sentence for capital murder was not eligible for parole until serving a fiat 35 years. TEX.CODE CR.IM. PROC. Art. 42.18, § 8(b)(2). After September l, 19935 that person was not eli- gible for parole’until serving a fiat 40 years. TEx.coDE cRIM. PRoc. Art. 42.18, § 8(b)(2)` (effective Sept. 1, 1993). Under the law effective until September 1, 1993, a person whose convic- tion included a deadly weapon finding was not eligible for parole until he had served a flat one-_` fourth of'his sentence, up to a maximum of `15 years Tl~;x.coDE callvl. l>Roc. Art. 42.18, § 8(b)(3). After September 1, 1993, a person whose conviction contained a deadly weapon finding was required'to-serve a flat one-half *688_of the © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 5 sentence up to a maximum of 30 years. TEX.CODE CRIM.,PROC. Art. 42.18, § 8(b)(3) (effective Sept. 1, 1993). Under the law effective until September l, 1993, a person convicted of murder (but whose conviction did not contain a deadly weapon finding) was eligible for parole when his good time plus flat time equaled one- quarter of the csentence up to 15 years. ' TEX.CODEVCRIM. PROC. Art. 42.18, § 8(b)(3). After September 1,'1993, a person convicted of murder was not eligible for parole until he had served one-half of his sentence or 30 years. TEX.CODE CRIM, PROC. Art. 42.18, § 8(b)(3) (effective Sept. l, 1993). The affidavits submitted by both applicant and his trial counsel with his habeas application state that they did not know of these statutory changes. Indeed, we may fairly infer from the record that the judge, prosecutor, and [the co-defendant's] counsel shared the same misunderstanding However, neither trial counsel's nor applicant's affidavits state that the prosecutor agreed to make applicant's parole eligibility a term or essential element of. the plea agreement There is no evid- ence that the prosecutor ever discussed any spe- cific term or particular percentage of the sentence that he believed applicant should or would serve in return for the prosecutor's dropping the charges from capital murder to straight murder. In sum, we are unable to find any evidence-that p_roves the prosecutor or judge caused applicant to plead guilty based upon an` incorrect under- ` standing of Texas parole law. [Citation omitted.] Id. at 409--10. In Mo_ussazadeh I], we held that a finding that parole eligibility formed an essential part of a plea agreement must be founded upon the express terms ~ of the written'plea-agreement-itself, the formal re- ~ cord at the plea hearing, or the written or testimoni- al evidence submitted by both the prosecution and ` the applicant`in a habeas proceeding Id. at 412. We were “unable to conclude that_parole eligibility played any part, implicit or explicit,» in the plea . U§i §§ '-_i'€“-. ~f»!l eir-’~»'»'r~e"s;§' A 131 161 i' /1\,1;»,1'1.1'-;11:-; ./ ~i , tss lmle 361 S.W.3d 684 (Cite as: 361 S.W.3d 684) agreement made between the prosecution and ap- plicant.” ]cl. at 413. We therefore “den[ied] applic- ant relief because he failed to` prove, by a pre- ponderance of th`e evidence, that his plea was in- duced by a misunderstanding of the applicable pa- role law which formed an essential element of the plea agreement.”_la'. Acknowledging our.prior hold- ` ings that,a guilty plea is not rendered involuntary simply because the defendant received and relied upon erroneous advice of counsel concerning parole eligibility, and that both parole eligibility and pa- role attainment are highly speculative future facts, we likewise rejected applicant's contention that his plea was involuntary regardless of whether the pa- role eligibility misinformation was implicitly incor- porated into the plea agreement Id. at413~14. The circumstances surrounding applicant's con- viction are not in dispute Prior to applicant's plea, trial counsel advised applicant about his parole eli- gibility, and that advice was incorrect. As we stated in Moussuzadeh 1], “The affidavits submitted by both applicant and his trial counsel with his habeas application state that they did not know of these [re_cently effective] statutory changes [in the parole- eligibility'law]. Indeed, we may fairly infer from the record that the judge, prosecutor, and counsel ‘ for [the co-defendant against whom applicant testi- fied] shared the same misunderstanding.” Mous- sazadeh lI, 64 S.W.3d at 410. [3][4][5] Counsel's advice can provide assist- ance so ineffective that it renders a guilty plea in- voluntary. *689111// v. Loc/chart, 474 U.S.'52, 56, 1106 S.Ct. 366,'88 L.Ed.2d 203 (19855) (quoting Mc:- ill/farm v. Richcl/'dson, 397 U.S. 759, 771, 90 S.Ct. _ 1'441, 25 L.Ed.2d 763 (1970); “voluntariness of the plea depends on whether counsel's advice ‘was within the range of competence demanded of attor-_ - neys in criminal cases.’ ”). A guilty plea is not . knowing or voluntary if made as a result of inef- fective assistance of counsel.£Ex parte Burns, 6011 §S.W.Zd 370, 372 (Tex.Crim.App.1980)",. A`defend- ant`s decision to plead guilty when based upon erro- neous advice of counsel is not done voluntarily and Page 6 n knowingly. Ex parte Batt/e, 817 S.W.2d 81, 83 (Tex.Crim.App.l991). See also";Ex parte*Ha/'ring- ten 310 -s.W.3rl 452, 459 1Tex.crim./-\pp.2010) (“When counsel's representation falls below this [ 4Sr)'ickland ] standard, it renders any resulting guilty plea involuntary.”). Applicant's initial application contended that “_counsel‘s gross misadvice regarding parole eligib- ility rendered applicant's guilty plea involuntary,” “the matter of parole eligibility was implicitly in- corporated in [his] plea agreement,” and that his “plea agreement was involuntary even if the matter of parole eligibility was not implicitly incorporated in the plea agreement.” Applicant now asks this Court to reconsider his application in light of Pn'- dilla v. Kentt/cky, 559 U.S. -_, 130 S.Ct. 1473, ,176 L.Ed.2d 284 (201§_0), and overrule our previous decisions in Ex parte Evans, 690 S.W.2d 274 (Tex.Crim.App. 1 985`), and Moussazcldeli II. The state contends that»Paa'il/a _has no bearing upon the Court's disposition of applicant's claim_ and that Ex parte Evans and Moussazadeli II are “still based upon sound logic regarding parole eli- gibility and parole attainment as being highly spec- ulative circumstances that does [sic] not render a guilty plea involuntary.” " We conclude that both applicant and the state are partly correct: Paa'illa is not applicable to the facts before us, and our decisions in _Ex parte Evans and Mous.sazadeh ll were incorrect. We now dis- avow our prior decisions in E.r parte Evans and Moussclzcideh ll to the extent that they (1) require ` parole-eligibility misinformation to form ¢an essen- tial part of the plea agreement in order to make-a showing of .an involuntary plea that resulted from ineffective assistance of counsel,' based upon such misinformation and _(2) fail to appropriately recog- __ nize the distinction between parole eligibility and parole attainment [6] We have previously held that, because of the extremely speculative nature of parole attain- _ment, advice from counsel concerning parole does © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 361 S.W.3d 684 (Cite as: 361 S.W.3d 684) not render a plea involuntary E)r parte Evans, 690 S.W.2d at 279. However, Evans stated that, because “eligibility for parole is a fluctual [sic] societal de- cision; highly subject to change,” id. at 2781§an3ap§; n ;pli'cant must prove, by a preponderance of the evii:l'- ence, that>paro`le eligibility was an affirmative part or essential element of the plea bargain Id. This is an incorrect statement of the law. While the ' general eligibility rules for parole may change over time, the\§;e1igibility~rules"remain the same for a'giv;-.`f‘ en conviction L_ikewise, an inmate who was eli- gible for mandatory release at the time of the of- 7 ' fense remains eligible for mandatory release on that conviction, even if that offense subsequently be- comes eligible for only discretionary mandatory re- _ lease “The statute in effect when the holding of- fense is committed determines an inmate's eligibil- ity for release on mandatory*690 supervision or pa-' role”§Eac-:pat'tei-Tho)npson, -l73»'18./W.~3d~ 458,l 459 "- (Tex.Crim.App.ZOO$)`f.-l Evans held that, because pa- role attainment was speculative, its “legal import- ance on the subject of voluntariness of a guilty plea” should be “discounted.” 'Ex parte-Evans, 690 S.W.2d at 279,‘7 Then,_ based on its incorrect state- ment 0f law, Evans made an erroneous logical leap and applied the same standard to parole eligibility. As a_ result, Evans held that erroneous advice as to either parole eligibility or parole attainment would not render a plea involuntary. Id 111 Moussazadeh lI, we further confiated the concepts of eligibility and attainment FN2. .See also ”Ex parte Traha_n, 781 §S.W.Zd 291, 292-93 (Tex.Crim.App.1989) ' (written plea memorandum reflected that- applicant wouldbecome eligible for parole consideration after having served one- fourth of sentence; habeas relief available - when that-was not the law and terms of w plea_agr_eement were impossible to fulfill). Although one can determine current parole eli- ' gibility with some degree of certainty, it is really- parole attainment that is significant to a plea bar- gaining defendant.' It matters very little that a per- " Page 7 son is eligible for parole in one year on a ten year sentence if virtually no one is being paroled in less than seven or eight years on a ten year sen- tence; 1t is for this reason that we have termed parole attainment “too speculative to warrant be- ing given effect upon" a defendant's guilty plea. 64 vS.W.3d at 413, quoting Ev¢ms, Sttpra. [7][8][9][10] Contrary to our prior decisions, there are considerable, concrete distinctions between parole attainment and parole eligibility. Parole attainment is indeed highly speculative, due to various factors associated with circumstances surrounding an individual prisoner's parole applica- tion, such as the prisoner's behavior in prison, the composition and attitude of the parole board, the identity and attitude of the governor, the population of the prison system, and regulations governing “good time.” S€e,Ex.parite Carillo, 687 S.W.2d 320, 325 (Tex.Crim.App.1985) (Miller, J.§ concurring). The question of parole eligibility, however, elicits a straightforward answer because an applicant's pa- role eligibility is determined by the law in effect on the date of the offense Ex parte Thompson, 173 S.W.3d at 459. The statutes that govern the punish- ment of a particular offense control the issue of pa- role eligibility and are not subject to alteration, ab- sent legislative amendment. Even in lthe event of a legislative amendment making a law more strin- gent, an applicant is subject only to the law govem- ing parole eligibility at the time the offense was committed. See Ex parte Alegria, 464 S.W.2d 868, ,' 874-75 (Tex.Crim.App.197l'-) (retroactive applica- tion of parole statute that increased defendant's cu- . ~mulation of years required for parole eligibility vi- '_olated ex post facto clauses of United States and Texas Constitutioris). Parole-eligibility require- ments are direct consequences because they are a definite and largely automatic result of a guilty _ plea. See Mitschke v. State,1_29 S. W.3d 130,135_ ' (Tex. Crim. App. 2004): Parole attainment, on the other hand, is not governed by statute and is gran- ted at the discretion of the parole board. FN3. A law that changes the punishment 36l‘s.w.3d 684, (ciie ssi 361 s.w.3d 684) for a crime after the crime has been com- mitted is an unconstitutional ex post facto .:law only if it inflicts a greater punishment than did the previous law. Ex parte Tate, 471 ` S.W.2d 404, 406 _(Tex.Crim.App.1971) '(op. on reh'g);» Ex . parte Scott, 471 4 S.W.2d 54, 55-6 (Tex.Crim.App.197l). “[A] statute which mitigates the rigor of the law_in force§at the time':`a crime was committed cannot be regarded as ex post facto with reference to ' that crime” Rooney v. North Dakc)ta, 196 U.S. 319, 325, 25 S.Ct. 264, 49 L.Ed. 494 (1905). On a claim of involuntary plea, the standard for the analysis of harm under the` Slric/e offense had been committed, the law had changed to treat murder as an “aggravated” offense for parole- eligibility purposes, regardless of whether there was a deadly-weapon finding In its findings of fact on applicant's original habeas application the habeas judge found that the prosecutor and the trial judge ratified defense counsel's misinformation about parole eligibility “by attaching significance to the deadly weapon finding.” The habeas judge recommended that applicant be granted a new trial. FN6. See Ex parte Moussazadeh, 64 s.w.'36 404, 408 (Tex.crim.App.zool). FN7. see TEx.coDE cRIlvl. PRoc, erl. 42.12 § sg; TEx. Gov'r cooE § 508.145(6). FN8. Moussazadeh, 64 S.W.3d at 409. FN9. The habeas judge also found that ap- pellant would not have pleaded guilty ab- sent the misinformation ` In our original opinion on applicant's habeas *"application, we declined to follow_ the habeas judge‘s finding, and her ultimate recommendation because it required “too many inferences stacked upon each other" for the deferral of the deadly » weapon issue “‘to support a finding that it was the parties' clear intention that parole eligibilirty]¥voas an essential element of the plea bargain.” We cited no authority for this “inference-stacking” holding, vand thus it does not appear to be based upon an established.rule that we would have Page 10 to change Moreover, with regard to the advice giv- en in Evans, we said in that case: FN10. Id. at413. FNll. Seeid. No overt sanctioning of this advice by the judge or the prosecutor appears in the record and it does, not appear to have been a part of the plea bargain We realize that it is common for the'parties to play the guessing game of parole eligibility in plea negotiations We-decline, however, to elev- date this common practice to the status of an ele- ment of the plea bargain without some further in- dication from the record evidencing that status. We conclude,'then, that we are not dealing with a broken or impossible plea bargain situation 2 a FN12. 690 S.W.2d at 277. Unlike in Evans, there was overt sanctioning of the attorney's advice`by the judge and the prosec- utor, or at least the habeas court`could so rationally conclude, as it has done Thus, we simply misana- lyzed the issue under Evans, and it is appropriate for us to reconsider the issue now.' 4 '$ v Further, since our original opinion in this case, we have decided Hooper, where we indicated that inference stacking was not necessarily irrational ' and that we should focus, not on whether inferences are being stacked, but simply on the rationality of the inferences irl addressing the sufficiency of the evidence to support a conviction FN13_.§1Hooper v. State, 214 S.W.3d 9, 16.-`17 (Tcx.Crim.App.2007). If it were ne- l cessary to decide whether Hoopet"s'pro-_ nouncement regarding inference stacking ' constituted a_ new _rule under _Teague, _I would hold that it doesnot, because, re- gardless of the scope offl`exas's version of,, Teague's proscription against announcing new constitutional rules of criminal pro- ' cedure on habeas, see Danfot'llt, supra, such `a proscription cannot apply to basic © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 361 S.W.3d 684 (Cite as: 361 S.W.3d 684) standards of habeas practice Otherwise a court could never change its procedures or standards on habeas. Finally, 1 would not hold, as the Court appears to do, that the simple failure to *694 convey ' information about parole eligibility renders a guilty plea involuntary We need not address whether counsel has an obligation to convey information about the parole consequences of .a plea. 'In this case, it is enough to hold that, if counsel does con- vey this type of information he must do so cor- rectly. Here, the information was incorrect. FN14. “Both failure to provide correct in- formation and providing incorrect informa- tion violate that duty[.]” Court's opinion at 691. Although 1 agree that applicant is entitled to a new trial, I do not join the Court's opinion 1 concur in the Court's judgment ' Tex.Crim._App.,2012.' Ex Parte Moussazadeh 361 S.W.3d 684 ` END or DocUlleNT © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. -Page 11 .1‘_._ No. ND 5591 (Single Count) TRN 010 107 3208 THE STATE OF TEXAS 1 v. ~ JAMES ALLEN PELLOAT, DEFENDANT ' ' §LIQ: TX r'il_El) ron tercero 2115 1118 211 l=> 2132 IN THE 1-A JUDICIAL [PEE ALL§Fu, DlsTRlcT coURT or;r."is$,-»le T ` NEwToN coUNTY; : JUDGl\/IENT OF CONVICTION BY COURT; SENTENCE TO Institutio,nal Division. TDCJ DArl-: oF JUDGMENT; JUDGE-PRl-:sll)lNG: ArroRNEY FoR THE srATE; ATTORNEY ron THE DEFl-:NDANT: LEE_I\_TB STATUTE FOR OFFENSEZ _ DEGREE OF OFFENSE: APPLlCABLE PUNISHMENT RANGE fincluding enhancements, if any): DATE OF OFFENSEI CHARG[NG INSTRUMENT: TERMS OF PLEA AGREEMENT le DETAIL): PLEA TO OFFENSE: PLEA TO ENHANCEMENT ' PARAGRAPH§ S): VERDICT FOR OFFENSE: FINDING ON ENHANCEMENT: AFFIRMATIVE FINDING ON DEADLY WEAPON: OTHER AFFIRMA'I`IVE SPECIAL M DATE SENTENCE IMPOSED: PUNISHMENT AND PLACE OF CONFINEMENT: TIME CREDITED TO SENTENCE: March 24, 2005 Monte D. Lawlis A. W Davis, Jr. William S. Morian, Jr. lmproper Relationship Between an Educator and a Student Section 21.12, Penal Code Second Degree Felony Second Degree 2-20 yrs in prison/max $10,000 fine On or about November 7, 2004. Indictment James Allen Pelloat will plead guilty to the following&:(cascs, all 2'“1 Degree Felonies: No. ND-599l, lmproper Relationship (21.12 P.C.); N.D~§SS%,-Smrat-Assa-ult-(BHI'|'P¢€-')? ND-5593, Sexual Assault (21.011 P.C.); ND-5594 lmproper Relationship (21.12 P.C.); and ND-56l7 Sexual Assault (21.011 P.C.), reduced from Aggravated Sexual Assault (22.021 P.C.). Case No. ND-5618, lmproper Relationshlp (2\.|2 P.C.) will be dismissed. The defendant will receive a sentence of twenty (20) years on each of the Mrcases, with the sentence in case ' No. ND-S992 and the sentence in c}se No. ND-5617 to run consecutively. The sentences in the remaining cases are to run concurrently. Defendant will receive credit for time served in the Newton County Jai| in the amount of 138 days. Guilty Not Applicable Guilty Not Applicable Not Applicable Not Applicable March 24, 2005 Twenty (20) years in the Institutional Division_-TDCJ, and §§ fine 138 days DSZ: Judgmcnt of Conviclion by Coun; Direct Sentcncc, Cause No. ND 5591; Page 1 of 3 Pach No. ND 5593 (Single Count) TRN 010 107 3208 § IN THE 1-A IUDICIAL§ § DISTRICT CoURT §§F 1'~. § NEWTON cOUNW;~rE THE sTATE OF TEXAS v. y JAMES ALLEN PELLOAT, DEFENDA~NT s_n;: Tx‘ FILED FOR RECORG 2005 wm 2a :=> 2= 33 """'E L.'__'_EH .\\ICT LEH,‘{ le)`L; JUDGI\/IENT OF CONVICTION BY COURT§ SENTENCE TO Institutional Division. TDCJ DATE OF JUDGMENT: JUDGE PRESIDING: ATTORNEY FOR THE STATE: ATFORNEY FOR THE DEFENDANTI OFFENSE: STATUTE FOR OFFENSE: DEGREE 'OF OFFENSE: APPLICABLE PUNISHMENT RANGE (including enhancements, ifany)! DA'I'E OF OFFENSE: CHARGING INSTRUMENL TERMS OF FLEA AGREEMENT §IN DE'I`AIL[: , PLEA To 0FFENSE: PLEA To ENHANCEMENT PARAGRAPH(s): vERDIcT FOR OFFENSE: Fn\JDING ON ENHANCEMENT: AFFIRMATIVE FINDING 0N DEADLY wEAPON: OTHER AFFIRMATIVE sPEcIAL FINDINGS; DATE sENTENCE IMPOSED: PUleHMENT AND PLACE 01= coNFIN)§MENT: TIME CREDITED TO SENTENCE: COURT COSTS: March 24, 2005 Monte D. Lawlis A. W Davis, Jr. William S, Morian, Jr. Sexual Assault Section 22.011, Penal Code S_econd Degree Felony Second Degree 2-20 yrs in prison/max 510,000 line November 7, 2004 . indictment ' §§ James Allen Pelloat will plead guilty to the following cases, all 2"" Degree Felonies: No. ND-5991, lmproper Relationship (21.12 P.C.); ND-5593, Sexual Assault (21.011 P.C.); ND-5594 lmproper Relationship (21.12 P.C.); and ND~5617 Sexual Assault (21.011 P.C.), reduced from Aggravated Sexual Assault (22.021 P.C.). Case No. ND-5618, lmproper Relationship (21.12 P.C.) will he dismissed. The defendant will receive a sentence of twenty (20) years on each of the ‘cases, with the sentence in case No. ND-5992 and the sentence in case No. ND-5617 to run consecutively. The sentences in the remaining cases are to run concurrently. Defendant will receive credit for time ' served in the Newton County Jail in the amount of 138 days Guilty Not App|icable ' Guilty l s Not Applicable Not Applicable Not Applicable March 24, 2005 Twenty (20) years in the Institutional Division-TDCJ, and M fine 138 days None DSZ: Judgmenl ofConviction by Court; Direct Sentence, Cause No. ND 5593; Page l of 3 Pages No. ND 5594 (Single Count)`TRN 010 107 3208 THE STATE OF TEXAS v. JAl\/fES-ALLEN PELLOAT, DEFENDANT SI_D: TX F'iLED'FoR REcoRn 2005 141qu F> 2= 33 IN THE 1-A JUDICIAL DISTRICT coURT OF.-; ,~ ' NEWTO_N coUNTY, m JUDGMENT OF CONVICTION BY COURT; SENTENCE TO Instit'utional Division, TDCJ DATE OF JUDGMENT: JUDGE PRESIDING: AT'I`ORNEY FOR THE STATE: _ 1 ATTORNEY FOR THE DEFENDANT: OFFENSE: STATUTE FOR OFFENSE! DEGREE OF OFFENSE: APPLICABLE PUNISHMENT RANGE fincluding enhancements, if any): . DATE OF OFFENSE: CHARGING INSTRUMENT: TERMS OF PLEA AGREEMENT §le DETAIL[: PLEA To oFFENsE; ,PLEA To ENHANCEMENT ».. . PARAGRAPH($): vERDICT FOR 0FFENSE: ~ FINDING 0N ENHANCEMENT: AFFIRMAHVE FINDING 0N DEADLY ' wEAPON: 0THER AFFIRMATIVE sPEcIAL FmDINGS: DATE SENTENCE IMPOSED; PUNISHMENT AND PLACE OF CONFINEMENT; TIME cREDITED`To sENTENcE; March 24, 2005 Monte D. Lawlis A. W Davis, Jr. William'S. Morian, Jr. lmproper Relationship Between an Educator and Student Section 21.12, Penal Code Second Degree Felony Second Degree 2-20 yrs in prison/max $10,000 fine On or about November 7, 2004. Indictment \’ James Allen Pelloat will plead guilty to the following& cases, all 2"‘ Degree Felonies: No. ND~5991, lmproper Relationshlp (21.12 P.C.); t (21.011 P.C.); ND-5593, Sexual.Assau|t (21.011 P.C.); ND-559_4 lmproper Relationship (21.12 P.C.); and ND5617 Sexual Assault (21.011 P.C.), reduced from Aggravated Sexual Assault (22.021 P.C.). Case No. ND-5618, lmproper Relationshlp (21.12 P.C.) will be dismissed. The defendant will receive a sentence of twenty (20) years on each of the “gases, with the sentence in case No. ND-S992 and the sentence in case No. ND-56l7 to run consecutively. The sentences in the remaining cases are to run concurrently. Defendant will receive credit for time served in the Newton County Jail in the amount of 138 days. Guilty Not Applicable Guilty Not Applicable Not App|icable Not Applicable March 24, 2005 Twenty (2_0) years in the Institutional Division-TDCJ, and §_o fine 138 days ' DSZ; Judgmenl ofConviction by Coun; Direct Sentence, Cause No. ND 5594; Page 1 of 3 Pagei 111 NQR-23-@6 11:58 l:ii"| DISTRICT CLERK No. ND 5617 (Single comm TRN 010 107 3208 THE sTATE or TEXAS § V. _ JAMES ALLEN P.ELLGAT, § DEFENDANT M)_: TX § _ 499 379 9@8?. vi'-".@2 F|LED FOR RECORD 2051/1920 13 z 32 DISTRICT COURT 0151'-/11111€111111 ' 13 NEWTON COUNTY;;THY_§A_ y 1_,_ JUDGMENT OF CONVICTION BY COURT; SENTENCE TO lustiwcional Division, TDCJ ~ Q`ATEOF 11 LDQMEM; 11 IDQE PRESIDING: ATTORNEY FOR THE STATE: TTORNEY R THE DEF T: ' 4 ` OFFENSE: ' STATUTE FOR' OFFENSE: E REE FENSE: D_G_Q£_QE____ AFPLchBLE PUNL§ HMENT RANGE 'nciu ' ' l DATE or 0FFENSE§ cHAggING INSTRUMENT; TERMS.OF PLEA AGREEMENT ' 1IN DETML):` ' _ consecutively. The sentences in the . PLEA T ENSE: ' . ELEA TQ ENHANCEMENT FARAGRAPH S : V ICTF R FF SE: FINDIN oN ENH T: __Q__AM;EM_EL AFFIRMATI}/_§ FlNDmg on Q§ADLY _ wEAPON: organ AFF;BMATIVE SPECIAL EIM DATE §ENTENCE IMPQ§§Q~, PUNISHMENT AND.PLACE or v oNFINEMENr: _ T;M_E_ cREDITED To §ENIEECE: COURT COSTS: March 24, 2005 v Monte D. Lawlis A. W Davis, Jr. v Wiiliam S. Morian, Jr; Sexual Assault Section 22.011, Penal Code Second Degree Felony Second Degree 2-20 yrs in prison/max $10,000 i“me On or about May 01, 2002. Indictment James Allen Pelloat will plead guilty to the following-110g crases, all 2"d Degree Felon|es: No. ND-5991, improper Relationship' (21.12 P.C.); _ , ND'-5593.j Sexual Assault (21.011 P.C.); ND-5594 improper Relationship_ (21.12 P.C.); and ND-56l7 Sexual Assault (21.011 P.C.), reduced from Aggravated Sexual Assault (22.021‘P.C.). Case No. ND-5618, improper Relationshlp (21.12 P.C.).wiii be dismissed. Th_e defendant wi'l} receive a sentence of twenty (20) years on each of thei£¥$ cascs, with the sentence in case No. ND-5992 and the Sentence in c e No. ND-5617 to run remaining cases are' to run concurrently. Defendant will receive credit for time served in the Newton County Jail in the amount of 138 daysl Guilty Nml Appli¢able Guilty 4 Not Applicable Not Applicabie Not Applicabie March 24, 2005 'Ier_nty (20) years in the ' Institutional Division-TDCJ, and 1313 fine 138 days , l None - DSZ: Judgmcnt'of Conviciion by Coun; Direct Sentence, Cause No. ND 5617; Page 1 nfl Pag¢s l