Pelloat, Ex Parte James Allen

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9 D 1<}) 1157

IN THE COURT OF CRIMINAL APPEALS §A©£;©N{ DEON”E©
CAUSE-75, 937-07, WR-75, _937-06, WR-75, 937-08 ===-§;=m
‘ TR CT 5617, 5593, 5591-A

STATE OF TEXAS - RECENED lN
~ COURT OF CR|M|NALAPPEALS
V.‘
NUV 04 2515
JAMES ALLEN PELLOAT, APPELLANT PRO SE
AbelAcosta, Clerk
MOTION FOR RECONSIDERATION _F_BOM DECISION RENDERED IN THE COURT OF

CRIlV[INAL APPEALS
Now comes Appellant, James Allen Pelloat, in the above cause(s) to request reconsideration from this
court of the decision rendered on 8/14/2015. In support of this reconsideration, the Appellant submits
the~following:
_I_

Appellant made every effort available to him to follow the proper procedure and has shown due
diligence to ensure as best he could his statutory right to file his amended 1107 was protected. Once he
received all of the supplemental records from Newton County that were filed in this original 1107, he
found two pieces of new evidence that he had not seen or knew of prior to trial. These pieces of
evidence were (l) the transcripts from his day in court,' March 23, 2005, and (2) a finding of facts and
conclusion of law. A copy of these two new items of evidence is included as exhibits. In June of 2012,
he filed his amended 1107 with Bree Allen, Newton CountthistrictC1erk.

He periodically sent letters after he submitted his amended 1107 to Ms. Allen asking about the
status. Two copies of such letters are included in this motion as an exhibit. He never received a
response from Ms. Allen in 2013.

He was diagnosed with state 3 prostate cancer and began receiving treatment via surgical
removal and radiation treatment Upon the completion of his hospitalization and therapy of 6 weeks
&om January to March 2015, he immediately filed a motion with the judge in his case to have the

District Clerk process his amended 1107. The District Clerk never processed his 1107 and merely kept

the motion un-filed and on moot status. This prejudiced his due process right and access to the courts

and the rules of the criminal court of appeals procedure. This non-compliance with the Code of

Criminal Procedu`re Rule 1107 also severely prejudiced his access to the courts.

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The first piece of new evidence he found in the supplemental findings of facts and conclusions
of law from Newton County dated September 26, 2011, the District Attomey stated that “His attorney
knew about the enactment of September l, 2003, for P.C. 21 .12” on item number 1_2. This meant that
his attorney, \Vllliam Morian, knew of cause No(s) 5594 and 5618 which both are deemed as ex~post
facto law in the United States and the Texas‘Constitution. The attorney was also aware that Appellant
was being wrongfully convicted and sent to prison. By withholding such information from Appellant,
his counsel was ineffective and incompetent See Ex Partv Moussazadeh 361 sw 3d 648. The
withholding of such important facts by Appellant's lawyer and the District Attorney made his guilty

plea unknowingly and involuntary and tainted the entire judicial process.

\Mth the two, possibly three, illegal P.Cf 21.12 charges, a known charge on an invalid indictment 5617,
a known charge 5594 where the victim lied about the date (where nothing happened until his 17th
birthday) that would invalidate the charge because of the conflict that the alleged crime occurred. If the
court ruled against the alleged date, Appellant would have been convicted of only one of the six
charges thus making the outcome totally different and proving the second prong of Stricklan`d v.

Washing;on and items mention in I, II, and III proving the first prong of Strickland.

_IY

In January 2005, Appellant was indicted (see indictment 5617) for Aggravated Sexual Assault
that allegedly occurred on May l, 2001. Through school documents, the attorney proved that Appellant
had not been hired to teach in Newton ISD. Theday of the plea bargain conference, District Attomey
Lewis stated “that all they had to do was change the last number in the year from 2001 to 2002 and that
charge would still be valid.” The Appellant attempted to express to the District Attomey while at the
conference that even with the date changed from 2001 to 2002, it would still be wrong. Following the
conference Appellant told his attomey, Mr. Morian, that nothing happened until much later in the
summer. The record indicates the date of birth of the alleged victim and the sex between Appellant
and the victim had to occur prior to June ll, 2002. Appellant stated that the sex occurred much later in
the summer and this should have made Mr. Morian aware that indictment 5617 was invalid. The
District Attomey lowered the charge from Aggravated Sexual Assault to Sexual Assault. "l`his action
extended the statute of limitations for 20 years more. (See Judgment for lowering charge.) This
lowering was done without judicial knowledge and without Appellant's knowledge since no such~
arrangements were discussed at Appellant's plea bargain conference. The changing of the date and
lowering of the charge deprived Appellant of a right given to him in the United States and Texas
Constitution l

On March 23, 2005, Appellant appeared before the Honorable Judge Monte Lawlis for
acceptance of Appellant's plea bargain and sentencing Appellant's attorney, Mr. Morian, questioned
the lowering of cause 5617 from Aggravated Sexual Assault to Sexual Assault to make clear that it was
lowered as a lesser included offense (see trial transcripts). The District Attomey stated, “Yes, it was
lowered as a lesser included crime and it was plainly written on the judgments.” The judgments at no
time show a “lesser included crime” showing that the District Attorney openly committed perjury by

consciously lying concerning the lesser included crime.

PRAYER

Appellant, James Allen Pelloat, prays this Honorable Court will accept this Motion for

Reconsideration and bring this cause back before the court for proper redress.

Humbly submitted,

James Allen Pelloat

TDCJ # 1289716

CT Terrell Unit (R-3)

1300 FM 655

Rosharon, Texas 77583-8609

CERTIFICATE OF SERVICE

I, J ames Allen Pelloat, hereby certify that a true and correct copy of this Motion for Reconsideration
has been furnished via US Postal Services to the following:

AbelAcosta, Clerk §o/\~\M ®§L§z),/\QM l

The Court of _Criminal Appeals
PO Box 12308 Capitol Station
Austin, TX 78711

Bree Allen, District Clerk
lA Judicial Court

PO Box 535

Newton, 'I`X 75966

CAUSE NOS. 5591, 5593, 5594 & 5617 l

THE STATE OF TEXAS IN THE DISTRIC'I` COURT

VS. l-A JUDICIAL DISTRICT

*i'***

JAMES ALLEN PELLOAT .NEWTON COUNTY, TEXAS

PLEA

On March 24, 2005 the following proceedings were had in the l-A Judicial l l

District Court of Newton County, Texas: `

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A¢ 5100 EO'clock_:_P..._.M
oct 19 2011

BR E ALLEN
D rk, n County. Texas
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APPEARANCES

FOR THE STATE: MR. A.W. DAVIS

DISTRICT ATTORNEY
NEWTON, TEXAS ~

FOR THE DEFENDANT: MR.WILLIAM MORlAN

SEALE, STOVER & BISBEY
JASPER, TEXAS

THE JUDGE: Court come to order. Cause No. 5591, 5593, 5594, 5617;
The State vs. James Allen Pelloat.

MR. DAVIS: The State’s Ready, Your Honor.

MR. MORIAN: Defendant’s ready, Your Honor. _
THE JUDGE: All right. Do you wish to have the indictments read?
MR. MORIAN: No, Your Honor. We’ll waive the reading.

THE JUDGE: Is -- is the defendant the same person named in each
indictment and is his name spelled correctly?

MR. MORIAN: Yes, Your Honor.
THE JUDGE: All right, at this time I’d ask the Defendant to stand.
THE DEFENDANT: (Stands).‘

THE JUDGE: Do you plead guilty or not guilty to the indictments in each
of the cases l just named?

THE DEFENDANT: The ones you just named, sir,_I plead guilty to, yes,
sir.

THE JUDGE: Before I can accept your plea of guilty I have to understand

several things First of all, l want to know if you have
understood all of the papers that you have signed?

THE DEFENDANT: Yes, sir.

THE JUDGE: And did you voluntarily sign these papers?
'l`HE DEFENDANT: Yes, sir.

THE JUDGE: Are you entering this plea of guilty freely and voluntarily?
THE Dmmm: Yes, sir.
THE JUDGE: In each case?

THE DEFENDANT: Yes, sir, in each case.

THE JUDGE: All right, I will accept the pleas of guilty in Cause No.
5591, 5593, 5594, and 5617, The state may present the
evidence and the -- any recommendation

MR DAVIS: 'l`hank you, Your Honor. The first case that
we’re going to present is 5591, The charge is improper
relationship of an educator with a student The defendant
was arrested in this case on November the 7th of 2004 and
indicted Deeember the 6'*’ er 2004. rhere bee been plea
bargaining in the case. Among the other things that have
been agreed to in the plea bargaining is that there’s a
judicial confession and an agreement that the evidence in
the case may be summarized orally. And it’s further
agreed that the State witnesses and other evidence are
available and informally presented to show that James
Allen Pellcoat - Pelloat, the defendant, on or about the
date alleged in the indictment, prior to the presentment of
the indictment in Newton County, Texas, did intentionally
or knowingly commit the acts described in the indictment
upon the victim, who was at the time younger than 17
years. -

I’d ask you, Your Honor, to take judicial notice of all the
papers on tile in the case, and in particular, the three page
guilty plea memorandum that’s signed by the defendant,
by his attomey, by me, and by Your Honor; the six page
written plea admonish -- admonishments document which
also includes the various waivers of the defendant, a
judicial confession signed by the defendant; along with

` signatures of the defendant, his attorney, my signature, and
yours. And I’d particularly ask that you take judicial
notice of the two judicial confessions, one on page 5 of the
written plea admonishments, and one on page 2 of the

- written plea mem -- the guilty plea memorandum Both
judicial confessions are in writing and sworn to under oath
by the defendant before the district clerk.

Aiter Your Honor has finished disposing of the case, at

some point in this proceeding there are victims and

victim’s family that wish to address the defendant
THE JUDGE: All right Mr. Morian, is this the agreement in 55 -_-
MK DAVIS: 5591.

THE JUDGE: 5591, If you would recite that -

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MR. MORIAN: Judge, these - these --the plea recommendation is

basically to dispose of all cases at the same time, and 4
there’s going -- and that plea recommendation is that
there’s going to be a dismissal of one of the charges; so,

altogether collectively those are going to -- that’s how
it’s been presented to me.

THE JUDGE: 20 years? Yeah.

MR. MORIAN: Yes, sir.

THE JUDGE: Is this the agreement?

THE DEFENDANT: Yes, sir.

THE JUDGE: Mr. Morian, is this the record in all of the cases? Have --

have you had time to discuss these papers with your client
and go over the papers?

MR. MORIAN: Yes, Your Honor. I have, and even today we’ve - of
course, as you know, we were supposed to have gotten
started at 2:00 o’clock; and I’ve spent quite a bit of time
with him since then going over the plea papers as well,

and explaining it to him. He does understand what we’ré
doing today.

THE JUDGE: All right. Mr. Pelloat, you understand that I’ve set out all
of the warnings and information in writing, and you have
k had a chance to study that and go over that; is that correct?

THE DEFENDANT: Yes.

_ THE JUDGE: in all cases?

THE DEFENDANT: Yes, sir.

THE JUDGE: What I’m going to do, 1 will take each case separately and
at the conclusion of each case then I will give anyone the
opportunity at that time to make an impact statement, and
we’ll wait until we finish all of the cases.

MR. DAVIS: All right Your Honor, at this time maybe it would be _
appropriate for the record if I went ahead and just stated the

plea bargain as the State understands it and hopefully §s\t{i§€"i'('§'¥"é""//,,o
defendant understands - ` \ v ’

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THE JUDGE:

All right

MR. DAVIS: - it at this point, before we go to one case at a time.

THE JUDGE:

All right. Go ahead. t

MR. DAVIS: The plea bargain is -- is that Mr. Pelloat has agreed to plead

guilty in Case No. 5591, 5593, 5594, and 5617, In return
we have agreed to recommend for your consideration a
sentence of 20 years on each of those cases, with two of
those sentences, specifically 5617 and 5593;'10 run
consecutively as opposed to concurrently; and that is the

- basis of the agreement

` THE JUDGE:

We’ve also agreed as part of the plea agreement to dismiss
Case No. 5618. It’s also, as of a few minutes ago, it’s been
agreed by the parties that No. 5592 will be set aside from
this plea bargain that we’re doing today, or this - this
procedure we’re following today, will be completely set
aside and the State will have the opportunity to try that -
that case at a future date, and the option to ask the Court to -
stack it along with the other -- the other convictions that -
that are in record.

All right. Let - let me do this then. And this will
apply to all -- all four cases. Is this the agreement, Mr.
Morian? H `

MR. MORIAN: Yes, Your Honor, that’s correct Just to make sure that

on Cause No. 5617, that is also now the lesser included
second-degree felony offense rather than the first-degree
It was originally a first-degree felony.

MR. DAVIS: Yeah. The plea papers very plainly set -- set that out, _

Judge, as does the judgment that we’ve submitted -

THEJUDGE: All right §§\%j_‘.’:l..._r,_€@"@
MR DAVIS: - for Your Honor’sconsideration. §§
THE JUDGE: rs this the agreement? _ :'-,,é/§¢.

THE DEFENDANT: Yes, sir.
v THE JUDGE:

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All right And you understand that initially 5 592 was to be
a part of this plea agreement, but there is no agreement

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. with reference to that case and that case has been §
. withdrawn, and the State’s attorney will have the option to ‘
call thatcase for trial at some later time. Do you
understand that? '

THE DEFENDANT: Yes.

THE JUDGE: And you understand also that there are two possibilities if
- if there is a conviction in that case and a sentence, that
those sentence - that sentence could be either run _ _ §
concurrently or it could run consecutively with these other
sentences? v

THEDEFENDANT: Yes, sir. §

THE JUDGE: You understand that?

THE DEFENDANT: Yes, sir.

THE JUDGE: And Mr. Morian, you’ve had a chance to go over that with
him_ and discuss that with him; is that --

MR. MORIAN: ,Yes, Your Honor, that’s correct.
THE JUDGE: - correct? All right ' "
MR. DAVIS: Just one other thing if I may, I take it that -- that you’re
ready for me to sum up as to the other three cases just as we
did with --` ' z
THE JUDGE: Yes. - ‘
MK DAVIS: -- with the first one. _ `;

THE JUDGE: If you’ll go ahead and do that and then I can take care of \`\\\\\\\"I"C~~~,,,

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MR. DAVIS: I’ll do them one at a time if you’d want me to. §"2 "._ /‘§
THEIUDGE; Yes, sir. §§§ _,~‘§;;>=
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MR. DAVIS: ~Au right I’d wet like the record re reflect m 5593, 5594,/»/,,, UNT\< \\\\\\\

and 5597 (sic), that we have had the same agreement in """"'“““\
each of those cases as to Your Honor being able to take

judicial notice of the evidence or the papers on tile in the

case, which include a judicial confession, and that we may

summarize the evidence which in each case is that James
Allen Pelloat on or about the date alleged in the indictment
in the particular case referred to and prior to the
presentment of that indictment in Newton County, Texas,
did intentionally or knowingly commit the acts described in
the indictment upon the victim in each of the cases, who
was at that time younger than 17 years. And that that guilty
plea memorandum and the written plea admonishment both
include judicial confessions, both of which are sworn under
oath before a district clerk, and we ask, Your Honor, once
again to -- to take judicial notice of those documents

THE JUDGE: Is this agreeable?
MR. MORIAN: Yes, Your Honor.
THE JUDGE: Is this agreeable?
THE DEFENDANT: Yes, it is.

THE JUDGE: All right Anything further before I announce my
acceptance or rejection?

MR. MORIAN: No, Your Honor.

THE JUDGE: All right. I will take judicial notice of the papers in each
case, I will accept the plea agreement in each case. Based
upon your plea of guilty in Cause No. 5591, 5593, 5594, `

5617, you will be found guilty. You will be sentenced to
confinement in the institutional division of the Texas
Departrnent of Criminal Justice for a period of 20 years.
The sentences in Cause No. 5593 and 5617 will run
consecutively The sentences in the remaining two cases
will run concurrently By law you are entitled to credit for
time served, and according to the notes provided me on the
plea papers, that would be a total of 138 days as of today,
and you will be given credit on these sentences for that
period of time.

You can go ahead and be seated, and --
THEDEFENDANT: (Complies).
THE JUDGE: Will there be some statements?

MR. DAVIS: Yes, Your Honor.

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____________-__'_-»-_-__~_-¢~___-___~__-__________--

ON APPLlCATlON FOR A WR|T OF HABEAS CORPUS
CAUSE NCS. ND 5591, 5593, 5617 & 5594 lN THE 1A JUDlClAL DlSTRlCT COURT
FROM NEWTQN COUNTY

FlNDlNGS OF FACT AND CONCLUS|ONS OE LAW

App|icant filed an application for post conviction writ of habeas corpus. This Court is bf the
opinion that a hearing is not necessary and chooses to rely on affidavits and hereby entdrs the

following l'-indings of Fact and Conclusions of Law.

l. FlNDlNGS OF FACT

1. Appiicant was indicted for six felony offenses:

Cause Number 5591 - improper Reiatlonship Between Educator and Student /
Gaus§._hiumber..5592 ¢.Aggravated -Sexual"Assa'ult~“~'

Cause Number 5593 - Seie~\ '\°A\*" '\*\'.

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