15 ')@1‘§1 ~0| ,O£ OL/ 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. |1:1 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: ` ll:§@ ' A¢ 5100 EO'clock_:_P..._.M oct 19 2011 BR E ALLEN D rk, n County. Texas By ' \\\\\\\\mm,,,,/ . .. . . . 0 » // ¢ ''''''' \\ . // \\ i // s L \ \\ ' . //// CO U N \\\\\ '- /"/llu u\\\\\\‘\ ,,....,, wbéu"?°°‘“'°.m° 13 '.F¢§'adi»w“‘°‘"“”“““° Ol HG |N l il- `_eq,_,. g ~._..r.` ~ mem umw U(yie\{;xm n 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 - 'lmm\\\\\\\‘ (-., 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 ’ OA/ .......... 's/\ //,,,/ C`O U N‘(`i\\\\\\\e /I/,"Hm“\\\\\ 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: ///// /ODN:Y".( \ All right And you understand that initially 5 592 was to be a part of this plea agreement, but there is no agreement ` lam \\\\‘“l l///, //, // "’llum\\\\\“ . 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~~~,,, z all of them. ' \\\\\" ‘\ R 7` "”/,,/ ` §§ Q\'c.?_,......,g:OQp/,,? MR. DAVIS: I’ll do them one at a time if you’d want me to. §"2 "._ /‘§ THEIUDGE; Yes, sir. §§§ _,~‘§;;>= ”//04/ " ......... " *§". ' . . . n . /”/, C 0 ,\ \ 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. @1/ \ \ 1 `),-l \" /~ _\" ‘ss’iz-. .~- . ‘ lN THE couRT or chMlNAL APr>Ei:(i..'sL "' " h " i" ',;' 's")u jr~ OFTEXAS gil iz_ Pilz 5 _________-___________ ________-____________ . BF_£' .l:Ai.i .NE _ j`iDlS Rll`Tl l.‘F.RK _____________-_______ ¢.g___--_____¢_~_~-___ -___________________________-_____________________- ____________-__'_-»-_-__~_-¢~___-___~__-__________-- 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\*" '\*\'. `\§¢OC `t’c<\ `\a%§ Roa\¢\ ramo\~v:TQ>A §§ ._ q") SS‘°) % C~L‘x_\& ®L,\.`E. r~> ~®Eo~='°»@e game-rex D\>r\‘®`\e\ C\-'"¢V~¥ Q.O. 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T\hi`;~€d‘i: 915 wet twenter vo"t’ £A_OJ.=. iam Ltf»t\§~\ 635 ¥1~'-<§3§1;\ \sr>\@ nn tva 'i=\t~)g ”'T'iv\ofs\`"~m%m mm tit cd.c`;=:§ P\Bl;_ir\‘? _` ‘Ti~t\s mi`~E‘o_S w o,l;'eooEwrc>»/ Cs>‘~>‘°\'“\ feb - ‘ ~ . .l c~¢,t.,<»»\ am Cc=r~\v-\~~r\\, 'i\):~'e\,s m ma \’~’a.im:rzm C*e,\,a~j' \» ";sg,;-,w a m 9 Ls‘.t\e"~t= @"a`:s.@¢~'o ='r:; -vx\\< i\_,flv- Q\;"Ps.‘x §i\ vega UJ» \_\\ r~¥§°“ma_ Q_QM »v~s\ w»...m Ex Parte Moussazadeh, 361 S.W. 3d 684 (Tex. Crim. App. 2012) ( v11 PAGES ) {/ /'l. l i- . \/\/e“s_‘tla\/\/n 361 S.W.3d 684 (Cit'e as: 361 S.W.3d 684) Court of Criminal Appeals of Texas, ' Ex parte Max MOUSSAZADEH, Applicant. 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 hisl 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 of fact supporting relief The Court of Criminal Appeals`, 64 S;W.3d v404, denied relief. Applicant filed subsequent 'hab'eas`applicat'ion, and a suggestion for reconsider- ation asking the Court of Crir_ninal Appeals, on its own motion, to reconsider its denial _of initial l habeas application. Holdings: The Court of Criminal Appeals, Johnson ,.,J held that: '(l) it would reconsider, on its own initiative, 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 _§lr_ickland; abrogating, Ex parre Evans, 690 S.W.'Zd 274; _ (3) counsel’s misinformation"to defendant as to his parole eligibility constituted deficient performance; and (4) counsel's error prejudiced defendant and thus ' was ineffective assistance Relief granted upon reconsideration. ' r Kcllcr, P.J., concurred in judgment,'with opin-.__ ion.' West` Headnotes © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. Cases . An initial application for a writ of habeas cor- 1 Page l [l],Habeas Corpus 197 @899 197 Habeas Corpus ` ` 1971V Operation and Effect of Determination; Res Judicata; Successive Proceedings v 197k899 k. Dismissal or hearing on success- ive petitions; evidence, Most Cited Cases Court of Criminal Appeals would reconsider, on its own initiative,'applicant’s initial application for writ of habeas corpus, which the Court had pre- viously denied, and, thus, would dismiss applicant's subsequent habeas application. Rules App.Proc., Rule 79.2(d).' ' 121 Habé§`as“ Corpiis 197 €>~.:>894.1 197 Habeas Corpus ' ` l97lV Operation and Effe`ct of Determination;` Res Judicata; Successive Proceedings l97k894 R`efusal to Discharge; Subsequent _ Applications; Prejudice 1971<894'_`.1 k. in geneiai. M¢sr cited ` p_us seeking an out- of-time appeal does not consti- 'tute a challenge to the conviction and does not bar subsequent writ applications ` 131 Criminal Law 110 @273.113) 110 Criminal Law iit)Xv Pieas ' 1101<272 Piea OfGaiiry ' 110k273.l Voluntary Character 110k273.1(3) k. Effect ofil|egal deten- tion or violation of constitutional rights; illegally acquired evidence l\/lost Cited Cases ~ ' Counsel' s advice can provide assistance so in~_ effective that it renders a guilty plea involuntary- U.S.C.A.Const;An1cnd-.6 [4] Criminal Law 110 @273.1(3) 1 110 Criminal Law ~ '.`_ _l lOXV Pleas ~\. l 361 S.W.3d 684 (Cite as: 361 S.W.3d 684) ' 110k272 Plea of Guilty 1 lOk273.l 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. [5] Criminal Law 110 €`/~'7~?>273.1(3) 110 Criminal Law l 10XV Pleas 110k272 Plea of Guilty l 10k273.l Voluntary Character 110k273.1(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. 161 Pardon and Parole 284 @42.1 284 Pardon and Parole 28411 Parole f 284k42 Constitutional and Statutory Provi- sions ' 284k42.l k. ln general. Most Cited Cases Prisons 310 @248 310 Prisons . 31011Prisoners and inmates 31011(F) Duration of Confinement 310k248 k. Conditional release; coin- munity placement. Most Cited Cascs 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 Parole 284 @48.1 284 Pardon and Parole 28411 Parole 2841<48 Eligibility for Parole or Parole Con- sideration Page 2 2841<48.1 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 ofa guilty plea. k [8] Pardon and Parole 284 €~°'347 284 Pardon and Parole 28411 Parole 284k45 Authority or Duty to GranttParole or Parole Consideration 284k47 k. Discretionary nature. Most Cited Cases Parole attainment is not governed by statute . and is granted at the discretion ofthe parole board. [9] Constitu‘tional Law 92 W2789 92 Constitutional Law t 92XX111 Ex Post‘ Facto Prohibitions b 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 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 inf1icts a greater punishment than did the previous law. "`u.s.C./-\. Const. Art. 1, § 10, cl. l. l - [10] Constitutional Law 92 @2789 92 Constitutional Law 92XX111 Ex Post Facto Prohibitions 92XXIII(_A) Constitutional Prohibitions in Gencral , 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 lOk273.l Voluntary Character 110k273.1(3) k. Effect of illegal 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) l 10 Criminal Law 1 lOXV Pleas 110k272 Plea of Guilty l 10k273.l Voluntary Character 110k273.l(3) k. Effect of illegal 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 6>°»§42.1 284 Pardon and Parole 28411 Parole 284k42 Constitutional and Statutory Provi- sions 284k42.1 k. In general. Most Cited Cases Prisons 310 €7~®248 310 Prisons _ 31011 Prisoners and lnmates 3_1011(F) Duration of Confinement v 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 Parole 284 W48.l 284 Pardon and Parole l v 28411 P_arole 284k48 Eligibility for Parole or Parole Con- sideration Page 2 284k48.l k. In general. Most Cited Cases Parole eligibility requirements arc 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 @47 284 Pardon and Parole 28411 Parole 284k45 Authority or Duty to Grant Parole or Parole Consideration 284k47 k. Discretionary nature Most Cited Cases ' . "' l ' Parole attainment is not governed by statute ' and is granted at the discretion of the parole board. [9] Constitutional Law 92 €/`7»92789 92 Constitutional Law 92XX111 Ex Post Facto Prohibitions 92XXIII(A) Constitutional Prohibitions in General 92k2789 k. Penal laws in general. Most Cited Cases Constitutional Law 92 @2790 92 Constitutional Law 92XXIII Ex Post Facto Prohibitions ` 92XX111(A) Constinitidnai 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 inflicts a greater punishment than did the previous law. "‘U.S.C.A. Consr. Arr. 1, § 10,¢1. 1. - 1101 Constirutionai Law 92'@2789 ' 92 Constitutional Law 92XXIII Ex Post Facto Prohibitions l v 92XXII_I(_A) Constitutiona_l 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) 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 U.S.C.A. Const. Art. l, § 10, cl. 1. 1111 Criminai Law 110 @19`20 1»10 Criminal_Law l 10XXX1 Counsel 1 10XXX1(C) Adequacy of Representation _l 10XXXI(C)2 Particular Cases and lssues 1 10k1920 k. Plea. Most Cited Cases The question of whether parole eligibility forms an affirmative part or essential element of the - plea agreement is not determinative of the court's deficient performance inquiry under the Sfrick[and test for ineffective assistance of counsel; abrogat- ing, Ex parte Evcms, 690 S.W.Zd 274. U.S.C.A. Const.Amend. 6. [12] Habeas Corpus 197 69486(3) 197 Habeas Corpus '19711 Grounds for Relief; Illegality of Restraint 19711(B) Particular Defects and Authority for Detention in General 197k482 Counsel l ., 197k486 Adequacy and Effectiveness of Counsel . _ . 197k486(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 Strick/gnd 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; in the 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. ' 11'31'Cr'iminal Law 110 €:>1882 © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 3 110 Criminal LaW 110XXX1Counsel 1 IOXXXI(C) Adequacy of Representation 110XXX1(C)1 ln General ' »' 110k1879 standard dr 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. [14] Criminal Law 110 QW1920l 1 10 Criminal Law 1 10XXX1 Counsel 1 IOXXXI(C) Adequacy of Representation l 10XXXI(C)2 Particular Cases and lssues 110kl920 k. Plea. Most Cited Cases ln 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 Law 110 @1920 110 Criminal Law 1 10XXX1 Counsel b 1 10XXX1(C) Adequacy of Representation . 1 10XXX1(C)2 Particular.Cases and lssues 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 guil'ty, constituted defi- cient performance as element of ineffective assist-. ance; parole eligibility requirements were pre- sumptively mandatory, and counsel provided incor- f`t'\e-r§,i,e~re? 1 361 S.W.3d 684 (Cite as: 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). [16] Criminal Law 110'@1920 1 10 Criminal Law ' 110xxxl counsel 1 _1 10XXX1(C) Adequacy of Representation 1 10XXX1(C)2 Partic:ular Cases and lssues l 10k1920 k. Plea. Most Cited Cases t 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 _ Anii.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. McMimi, State’s Attorney, Austin, for State. OPINION 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, v the court of appeals affirmed the judgment`of the trial court. Moussazadeh v. Sla!e, 962 S.W.Zd 261 (Tex.App.-Houston'[l¢lth Dist.]‘ 1998, pet. refd) ( Moussazadeh 1 ). Thereafter, applicant filed an ap- plication for habeas corpus relief. In la published opinion, we denied relief because applicant ‘ffailed 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 par‘te Mous- sazadeh, 64 S.W.3d 404,.413 (Tex.Crim.App.ZOOl) , cert. denied, 537 U.S. 813, 123 S.Ct. 74, 154 L.Ed.Zd 16 (2002) (' Moussazadeh I[, # AP-74,185). Applicant filed a subsequent applica- tion for writ of habeas corpus, Moussazadeh III, # 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(d). We now reconsider, on our own initiative, the claim raised in applicant's second application for writ of habeas corpus, Mous- sazadeh [1, and grant relief. Applicant's sub- ` sequent application, Moussazadeh III, is dismissed. FNl. Applicant'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 Mtherson, 32 S.W.3d ~ 860, 861 (Tex.Crim.App.2000). 'In Moussazadeh II, we discussed ho`vv 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. Moussazadeh 11, 64 s.W.3d at 406_07. while l initially rejecting the state's offer ofa 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. The agreement included applic- ant's promise tot testify at a co-defendant's trial, which he did. Ia'. at 407_09. During that\testimony, 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 hav_e faced if convicted of capital murder. Id. at 408-09. After the co-defendant's trial ended, ap- plicant was sentenced to seventy-fiveiyears' 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 in Moussazadeh‘l[. It is quite possible that no one in this proceed- ing knew that the parole law had changed dramat- ically just ll days before this robbery-murder. App|icant'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 1, 1993,- that person was not eli- gible for parole-until serving a flat 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 fiat one-_` ` 'fourth of his sentence, up t`o a` maximum of `15 years. TEX.CODE CRIM. PROC.. Art. 42.18, § 8(b)(3). After September l, 1993, a'person whosel conviction contained a deadly weapon finding was required to' serve a flat one-half *688,of the © 201'2_ 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 1, 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 fiat time equaled one- quarter of the _sentence up to 15 years. ’ TEX.CODE_CRIM. 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 ofthese 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 Moussazadeh-II, we held that a finding that parole eligibility formed an'essent`ial 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 cxplicit,r in the plea 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.”'ld. Acknowledging ourprior 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. at 413-.14. The circumstances surrounding applicant's con- viction are not in dispute Pl‘ior to applicant's plea, trial counsel advised applicant about his parole eli- gibility, and that advice was incorrect. As we stated in Moussazadeh 11, “'I`he affidavits submitted by both applicant and his trial counsel with his habeas application state that they did not know of these [recently 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. *689_1~/ill v. Loc/c_hart, 474 U.S._52, 56, 1106 S.Ct. 366,'88 L.Ed.2d 203 (198_§) (quoting Mc- ill/latin v. Richa/'dson, 397 U.S. 759, 771, 90 S.Ct. _ 1441, 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, 60';:‘1 ;s.w.zd 370, 372 (rex.cr'im.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. 1991 ).` See also ;Ex parte*Ha/~ring- ton, 310 S.W.3d 452, 459 (Tex.Criln.App.ZOlO) (“When counsel's representation falls below this [ -Strickland] 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 Pa’-` dir/d n 'Keunieky, 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.1985`), and Moussazadeh II. The state contends that»Paa'i/la _has no bearing upon the Court's disposition of applicant's claim, and that Ex parte *Evans and Moussazadeh 11 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 Ei)ans and Moussazadeh 11 were incorrect. We now dis- t avow our prior decisions in 'Ex`parte Evans and Moussazadeh 1[ 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 A(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. Ex parte Evans, 690 S.W.2d at 279. However, Evans stated that, because “eligibility for parole is a fiuctual [sic] societal de- cision; highly subject to change,” ence, that= paro’-le eligibility was an affirmative part or essential element of the plea bargain Ia'. . id. at 278,§anjup§§' tPliCant must prove, by a preponderance of the evi`tfl This is an_ incorrect statement of the law. While the ' general eligibility rules for parole may change over time, thet§:ejigibility rules`»remainrth'e same for a"giv;-;v en conviction L_ikewise, an inmate who was eli- gible for mandatory release at the time of the of- t ~ 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.”§Ex~“»partef»'~??hompson, rl7-3'1S./W.-3d' 458,' 459 (Tex.Crim.App.2005):.; Evans held that, because pa- role attainment was speculative, its “1egal import- ance on the subject `of voluntariness of a guilty plea” should be “discounted.” 'Ex parteiEvans, 690 S.W.2d at 2791 Then, based on its incorrect state- ment of 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. In Moussazadeh ll, we further confiated the concepts of eligibility and attainment. FN2. .See also Ex parte Tr_ahan, 781 9 . fs.W.zd 291, 292~93 j(rex.crim.App.i989> v (written plea memorandum refiected that applicant would'become eligible for parole consideration after having served one- fourth of sentence; habeas relief available when that'was not the law and terms of plea agreement 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 defendan_t.' It matters very little that a per- ` © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 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. It 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 S.W.3d at 413, quoting Evans, Supra. [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,'ge,Exipat;te Carillo, 687 S.W.2d 320, 325 (Tex.Crim.App.l985) (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 the event of a legislative amendment making a law more strin- gent, an applicant is subject only to the law govern- ing parole eligibility at the time the offense was committed See Ex parte Alegria, 464 S.W.2d 868, 1 874-75 (Tex.Crim.App.19711) (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, 129 S. W.3_d 130,13'54_' (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 bo'ard. ' FN3. A law that changes the punishment 361 S.W.3d 684, (Cite as: 361 S.W.3d 684) for a crime after the crime has been com- mitted is an unconstitutional ex post facto zlaw only if it inflicts a greater punishment than did the previous law. Ex parte Tate, 471 ` S.W.2d '404, 406 (Tex.Crim.App.l97l) v(op. on_ reh'g);- Ex . parte scott 471 _ s.w.zd 54, 55_6 (Tex.Crim.App.197l). “[A] statute which mitigates the rigor of the law,in force§,at - the time""ii crime was committed cannot be regarded as ex post facto with reference to _ that crime.” Rooney v. No/'th Dakota, 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` Stric/c/ana’ protocol as expressed in these cases may be stated generally as “but for the erroneous advice of counsel, the ap- plicant*691 would not have plead guilty.” Eir parte Ha/'rington, 310 S.W.3dat 458. See also Ex parte Mot_)a’y, 991 S.W.2d 856, 858 (Tex.Crim.App.l999) ; Ex parte Stephenson, 722 S.W.2d 426, 428 (Tex.Crim.App.l987). [1 1] When deciding whether to accept or reject a plea offer, a defendant will likely consider the ac- tual minimum amount of time he will spend incar- cerated. In order to properly consider his options, a_ defendant needs accurate information about the law concerning parole eligibility. Although we continue to recognize the distinction between direct and col-' lateral consequences, we now hold that the question of whether`parole eligibility forms an affirmative part or essential element of the plea agreement is 'not determinative of this Court's deficient-per- formance inquiry under Strick/and. [12] To obtain habeas corpus relief on a claim §of.involuntary,plea, .an applicant must meet both prongsof the Stricklanc{ standards (1)`counsel's per- formance "was deficient; and (2) that a probability exists, sufficient to undermine our confidence in the result, that the outcome would have been different _ - but for counsel['s] deficient performance.” Ex parte- Whire, 160 s.w.3d 46_, 49 (rex.cri`m.App.2004). in Page 8 the context of involuntary plea, the “different out- come” is choosing not to plead and instead choos- ing to go to trial. [13][14] Counsel‘s performance is deficient if it is shown to have fallen below an objective standard , " of reasonableness [d. at 51; Strick/ana" v. Wasliing- ton, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 ~L.Ed.Zd 674 (1984). The constitutionally appropri- ate level of reasonableness is defined byt»the prac- tices and expectations of the legal community and prevailing professional norms therein. Stri`ck/ana', supra, at 688, 104 S.Ct. 2052. In situations in which the law is` not clear, counsel should advise a client that pending criminal charges may carry _a risk of other serious consequences When a serious consequence is truly clear, however, counsel has an equally clear duty to give correct advice Both'-fail- ure to provide correct information and providing in- correct information violate that duty. [15] The terms of the relevant parole-eligibility statute are succinct and clear with respect to the consequences of a guilty plea, Based upon the date in which the instant offense was ` committed, Tex.Code Criin. Proc. art. 42.18'§ 8(b)(3) clearly and succinctly provided that “a person convicted of murder was not eligible 'for parole until he had served one-half of his sentence or thirty ~years.” Moussazadeh II, supra, at 409. Applicant's counsel could have easily determined the applicable parole- eligibility requirements simply by reading the text of the statute Instead, applicant's counsel failed to . inform him of changes in the parole-eligibility stat- utes that essentially doubled the length of time he must serve'before becoming eligible for parole The fact that the amendments took effect only eleven day_s before the offense is of no consequence . .FN4..Parole eligibility is not speculative ln this case, parole eligibility ewas.statutor- _ ily determined and, at the time of the plea, there Was no speculation about those stat- utory terlns. Those terms of parole eligibil- ity were clear, succinct, and expli`cit. It ap- pears that all parties involved were _un- © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 361 S.W.3d 684 (Cite as: 361 S.W.3d 684) aware that parole eligibility had changed significantly just a few days before the commission ofthe alleged offense. The performance'of applicant's counsel was de- ficient: the consequences of applicant's plea could have been easily determined by reading the applic- _ able statute. Parole-eligibility requirements are pre- sumptively mandatory, and applicant's trial counsel provided '-incorrect advice. We *692 conclude that applicant has sufficiently proved that his counsel was constitutionally deficient [16] The portion of applicant's sentence that must`be served before he becomes eligible for pa- role was doub|e the portion that he was led to be- lieve he must serve. Based on applicant's affidavit of January 13, 1997, we also conclude that ap- plicant wbuld not have pled guilty if he had known the actual time he Would have to serve, and thus prejudice is shown. We find that the habeas court's findings of fact and conclusions of law are suppor- ted by the record and agree that relief should be granted FNS. “Had 'Judge `Azio`s_l;' Mr. Jones, or Mr.' Cogdell§rt_old m§ that a murder conviction would require me to serve aggravated time of one-half of my sentence, up to a maxim- _um of 30 years, even without a deadly weapon finding, I would not have accepted the plea bargain.” v Accordingly, upon reconsideration, We grant relief. The judgment in this cause is hereby vacated, and applicant is remanded to the custody of the Harris County Sherif`f to answer the charges set out in the indictment."l`he trial court shall issue an ap- - propriate bench warrant within ten days after the . ' mandate of this Court issues. Copies of this opinion _A _. shall be sent to the trial court and to the Texas De- partment of Criminal Justice,` correctional institu- tions division. KELLER; P.J., filed a concurring opinion.v MEY- ERS, J., did not participate. © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. "\~i-"ll@`!' Page 9 KELLER, P.J., concurring In overruling Ex parte Evcms,FNl the Court creates a new rule of constitutional law. Under Teague, with some exceptions, federal`courts may not announce or apply new rules of constitutional law on collateral review. The states are not bound by the Teague rule and may afford retroact- ive effect on collateral review-in situations not al- lowed under Teague. Nevertheless, with -re- spect to the new Confrontation Clause holding ar- ticulated in Crawford v. Washinglon, we ap- plied the rule in Teague to -bar retroactive applica- tion on habeas corpus. The Court does not con- duct a retroactivity analysis in this case, and I do not know its reason for making the new rule retro- active._Has the Court abandoned Teague altogether in favor of its own retroactivity analysis? Does it intend to adhere'to Teague, but with state-created exceptions? Do any exceptions~articulated in Teague or state-created_apply in the present case? If the Court is going to overrule prior precedent on habeas review, as it does here, I believe that it should clearly explain-how this fits into our retro- activity jurisprudence FN1. 690 S.W.2d 274 ('I`ex.Crim.App.1985). _ FN2. Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). FN3. Danforth v. Minne`sota, 552 U.S. 264, 128 S.Ct. 1029, 169 L.Ed.2d 859 (2008);- Ex parte Lave, 1257 S.W.3d 235, 237 & n. 15 (Tex.Crim._App.2008). ' FN4. 541 U.S. 36, 124 S.Ct. 1354, 158 L;Ed.2d 177'(2004). FNS. Lave, 257 s.W.3d at `237; Ex park Ke'irh, 202 s.W.3d 767 (Tex.crim.App.zooc). There is an easier way to resolve this case, During the plea colloquy, the trial judge was pre- ' pared to make a deadly-weapon finding, but the v vii 5' § t ' , F"la'~,e~‘ : '~Aioil.~;.-nc-., 361 s.w.3d 684 ,(cice as: 361 s.w.3d 684) ~ parties explained that the issue was to be left open for the judge to determine at punishment, which would be assessed after applicant testified against a co-defendant in accordance with the plea agree- ment. N This_explanation was consistent with the parties agreeing *693 that applicant would have his chance, after cooperating with the State, to per- suade the trial judge to make his ` time “non-aggravated,” i.e.- subject to more generous pa- role-eligibility rules available to non-3g offenses v But less than two weeks before the 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.3d 404, 408 (Tex.Crini.App.ZQOl). FN7. See TEx.coDE CRIM. PROC. art 42.12 § sg; TEX. Gov'r CoDE § 508.145(d). 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. `ln 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 ofthe deadly ` weapon issue “to support a finding that it was the parties' clear intention that parole eligibilil_t_y]was an ' ` ' n 10 essential element of the plea bargain. We cited no authority for this “inference-stacking” holding, and 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 Evzms, we said in that case: FNlO. Id. at413. FN11. 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- `ate 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. a ` FN12. 690 s.W.zd 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 Ei)ans, and it is appropriate for us to reconsider the issue now.' 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 in addressing the sufficiency of the evidence'to support a conviction. FN13_.§1H00per v. Slate, 214 S'~.W.3d 9, .16-`17 (Tex.Crini.App.2007). If it were ne- cessary to decide whether ]~looper's`pro-, nouncement regarding inference stacking ' constituted a,,_new _rule under _Teague. .I would hold that it does'not, because, re- gardless of the scope ofHexas's version of`. Teague's proscription against announcing new constitutional rules of criminal pro- ' cedure on habeas, see Darrfo/'Iii, sup)'a, 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, l 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, l do notjoin the Court's opinion. I concur in the Court'sjudgment. ' Tex.Crim._App.,2012.' Ex Parte Moussazadeh 361 S.W.3d 684 ` END oF DoCUMENT © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. d Page 11 *::;:,~:s\ THE S'I`ATE OF TEXAS v. JAMES ALLEN PELLOAT, DEFENDANT ' §lQ: TX No. ND 5591 (Single Count) TRN 010 107 3208 F`lLED FOR RECUF\’D 2005 MAR 214 13 2: 32 IN THE 1-AJUDICIAL l'§EE ALLEN DISTRICT coURT or:'.~:`r@rlc NEwToN couNTY; .: JUDGl\/[ENT OF CONVICTION BY COURT.', SENTENCE TO Institutional DivisionLTDCJ DATE oF JUDGMENT: JUDGEPRESIDING; ATToRNEY FoR THE sTArE; ATToRNEY FoR THE DEFENDANT: LF_ELSE S'I`A'I`UTE FOR OFFENSE: DEGREE OF OFFENSE: APPLlCABLE PUNISHMENT RANGE tincluding enhancementsl if any): DATE OF OFFENSE: CHARGING INSTRUMENT: TERMS OF PbEA AGREEMENT gIN DETAIL): PLEA TO OFFENSE: PLEA TO ENHANCEMENT ‘ EM§)_I VERDICT FOR OFFENSE: FINDING ON ENHANCEMENT: AFFIRMATIVE FINDING ON DEADLY WEAPON: OTHER AFFlRMATIVE SPECIAL FI'NDINGS: DATE SENTENCE IMPOSED: PUNISHMEN'I` AND PLACE OF CONFINEMENT: TIME CREDITED T() SENTENCE: March 24, 2005 Monte D. Lawlis A. W Davis, Jr. William S. Morian, Jr. Improper 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£l:owcases, all 2“d Degree Felonies: No, ND-599l, lmproper Relationship (21.12 P.C.); M,-Smi-Assade-(i+M-F=€°.)? ND-5593, Sexual Assault (21.011 P.C.); ND-5594 improper Relationship (2!.12 P.C.); and ND-5617 Sexual Assault (2}.0|1 P.C.), reduced from Aggravated Sexual Assault (22.021 P.C.). Case No. ND-SG|B, lmproper Relationship (2|.12 P.C.) will be dismissed. The defendant will receive a sentence of twenty (20) years on each of the dw(cases, with the sentence in case ` No. ND-5992 and the sentence in c se No. ND-5617 to run consecutively. The sentences in the ¢}F“:e remaining cases are to run concurrent|y. 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 Applicable Not Applicable March 24, 2005 Twenty (20) years in the Institutional Division-TDCJ, and §§ fine 138 days DSZ: ludgment of Conviction by Coun; Direct Sentencc, Cause No. ND 5591; Page l 0f3 Pages otto ron Rizcoac No. ND 5593 (singie Count) TRN 010 107 3208 2105 inn 214 _13 2; 33 THE sTATE oF TEXAS v. k JAMES ALLEN PELLoAr, DEFENDAN'I` S_IQ: TX § § § IN THE 1-A JUDICIALL~"" " DISTRICT COURT orr NEWTON couNW;-i:a JUDGMENT oF CoNvICTIoN BY CoURT; SENTENCE TO Institutional Division. TDCJ DATE OF JUDGMENT: JUDGE PRESIDING: A'I'I`ORNEY FOR THE STATE: A'I'I`ORNEY FOR THE DEFENDANT: - OFFENSE: STATUTE FOR OFFENSE: DEGREE'OF OFFENSE: APPLICABLE PUNISHMENT RANGE (including enhancements, if any): - DATE OF OFFENSE.' CHARGING INSTRUMEN.'[; TERMS OF PLEA AGREEMENT §IN T‘ijETAIL[: _ PLEA TO OFFENSE: PLEA 'I`O ENHANCEMENT PARAGRAPH(S l: VERDICT FOR OFFENSE: FINDING ON ENHANCEMENT: AFFIRMATIVE FlNDING ON DEADLY WEAPON: OTHER AFFIRMATIVE SPECIAL FINDINGS: 'DA'I`E SENTENCE IMPOSED: PUNlSHMENT AND PLACE OF CONF[NE;MENT: 'I`IME CREDITED TO SENTENCE: COURT COSTS: March 24, 2005 Monte D. Lawlis A. W Davis, Jr. William S, Morian, Jr. Sexual Assault Section 22.011, Penai Code Second Degree Felony Second Degree 2-20 yrs in prison/max $l0,000 fine November 7, 2004 Indictment . . . 435 James Allen Pelloat will plead guilty to the following cases, all 2"d Degree Felonies: No, ND-599l, lmproper Rclationship (21.12 P.C.); ND-5593, Sexual Assault (21.011 P.C.); ND-5594 improper Relationship (21.12 P.C.); and ND-5617 Sexuai Assault (21.011 P.C.), reduced from Aggravated Sexual Assault (22.021 P.C.). Case No. ND-5618, Improper Relationship (21.12 P.C.) will be 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-56l7 to_ run consecutively. The sentences in the remaining cases are to run concurrentiy. Defendant will receive credit for time ' served in the Newton County Jail in the amount of 138 days Guii¢y Not Applicable Guilty t Not Applicable Not Applicable Not Applicable March 24, 2005 'I`wenty (20) years in the Institutiona| Division-TDCJ, and § fine 138 days . None DSZ: Judgment ofConviction by Coun; Direct Sentence, Cause No. ND 5593; Page | of 3 Pages ]_. No. ND 5594 (Single Count)_TRN 010 107 3208 iHE sTATE oF TEXAS V. JAMES¢ALLEN PELLoAr, DEFENDANT gm Tx men rca REcor