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(\cc\r~\\>rr)r:~¢> \\<>"? vo`c;¢»\ "'{'\¢`~c=`-\ \‘\c>\l ~i'j_;& C;`\`¢\\)\`:Y> y 'P-~'d 5\1¥=.~¢_.»_ Of~" :\>x."\k \\) a}¢’\"¢§ 1 “T\-\\¢§ ‘\'.‘> "»-~\ §§ <-D ’\“0 m»_z!° ,3-<. ¢~\»~.'\A ?`~m~'~‘%wo‘v`:_<) '\\Q'? . T\A\`:Q\'; c\i_ qur§.\,__\;,r-\g_;.za N,.b§__\€¢____~§:§.®\c,wv_v§____ `€\wg "T¢Joc\x‘=»m~\`~zm mm '~;-cc§¢_§-.`» \ola\‘T "Ww; m\~‘é\o_$ '1 10 Q>zz Q~oc>m»\ fmc .J CZQ\.»<'.>_\ c»‘\'- C§L\`*¢.'“\'w€\\* '\\?QE:'S~\_S -‘m "r'\».j:.' T~/C~@BG'L\X\ C<:)ua'-g' €.~,>»;5,1 a m €? Lv.@\¢'i: @J:s.@¢>w'o m y -w\< "»"1\;,*€1\,= Q\;Ps-x (`B\\ my U\~» \_\A‘ f~§°*w°, “»Q~@-¢~Q>&:->< \.,) _ <- ~M`,: ~ ;,' , _'..A,... ..,.\... 'z."¥*"§§.~`¢_`“- Ex Parte MouSSazadeh, 361 S.W. 3d 684 (Tex. Crim. App. 2012) ' ( ll PAGES ) /". ?"' * q \`1" _ _ We`§tlaw. 361 s.w.3d 684 (cite 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. Backgrolind: 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 of fact supporting relief The Court of Criminal Appeals, 64 S. W. 3d 404, denied relief App|icant filed subsequent habeas‘applicat'ion, and a suggestion for reconsideri- ation asking the Court of Criminal 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 affinnative;.part or essential element of the plea agreement is not determinative of court's deficient performance inquiry under .$rrickland; abrogating, Ex pal-re Ewms, 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. n Keller, P.J., concurred in judgment,'with opin-m '4 ion.' West` Headnotes ` © 2012 Thomson Reuters. No Claim 1b Orig. US Gov. Works. Cases Page 1 [l],Habeas Corpus 197 @899 197 Habeas Corpus ` 1 4 1971V Operation and Effect of Determination; Res Judicata; Successive Proceedings l 197k899 k. Dismissal or hearing on success- ive petiti'ons; 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 Hai)'e"as' Corpus 197 €._»_)894.1 197 Habeas Corpus " 1971V Operation and Effect of Determination;_ Res Judicata; Successive Proceedings 1971<894 R`efusal to Discharge; Subsequent . App|ications; Prejudice 1971<894“.1 1<. in geneiai. Mosr oier v _. , » \ An initial application for a writ of habeas cor- . pus seeking an out-of-time appeal does not consti- tute a challenge to the conviction and does not bar . subsequent writ applications ` 131 Crimina1Law 1.»10 @273.1(31 l 10 Criminal Law' 110Xv Pleas 110k272 Plea of Guilty ' 1 10k273 1 Voluntary Character 110k2731(3) k. Effect ofillcgal deten- tion or violation of constitutional rights; illegally acquired evidence MostCited Cases - ' Counsel' s advice can provide assistance so in- effective that .it renders a guilty plea involuntary U. S. C. A Const: Amend. 6. 141 Criminm Law 110 @273.'1(3)‘ t 110 Criminal Law 11 lOXV Pleas 361 S.W.3d 684 (Citc as: 361 S.W.3d 684) ‘ 110k272 Plea of Guilty 1 10k273.l Voluntary Character l 101<273.1(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 lOXV 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 r- A defendant's decision to plead guilty when based upon erroneous advice of counsel is not done voluntarily and knowingly. 16] Pardon and Parole 284 €,"_»~>42.1 284 Pardon and Parole 28411 Parole k 284k42 Constitutional and Statutory Provi- sions 284k42.l k. In general. Most Cited Cases Prisons 310 W248 310 Prisons . 31011 Prisoners and inmates 31011(F) Duration of Confinement 310k248 k. Conditional release; com~ 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] Pacdon and Parole 284 @48.1 284 Pardon and Parole 28411 Parole l2841<48 Eligibility for Parole or Parole Con- sideration Page 2 284k48.l k. ln general. Most Cited Cases Parole eligibility requirements are direct l<':on- sequences ofa guilty plea because they are a defin- ite and largely automatic result ofa guilty plea. k |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 » Parole attainment is not governed by statute , . 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 @92790 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 inflicts a greater punishment than did the previous law. J'U.S.C.A. Const. Arr. 1, § 10, 61. 1. ' ~ 1101 Constitutional Law 92 @2789 92 Constitutional Law 92XX111 Ex Post Facto P'rohibitions 92XXIIl(/\) Constitutional Prohibitions in General . 92k2789 k. Penal laws in general. Most Cited Cases ©-2012 'I`homson Reuters. No Claim to‘Orig. US Gov. Works. 361 s.w.3d 684 (cice as; 361 s.w.3d 684) l 10k272 Plea of Guilty 1 10k273.l Voluntary Character l 10k273.l(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 Criminm Law 110 @273.1(3) l 10 Criminal Law l lOXV 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. '[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 €7->248 310 Prisons _ 31011 Prisoners and Inmates 3`1011(F) Duration of Confmement 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. 171 Pardon and Par_ol_e 284 @48.1 284 Pardon and Parolev 28411 Parol'e 284k48 Eligibility for Parole or Parole Con- sideration - j 'General Page 2 284k48.l k. ln 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 WM 284 Pardo_n and Parole 284II Parole . 2841<45 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 €,“-"92789 92 Constitutional Law 92XX111 Ex Post Facto Prohibitions ' 92XXIII(A) Constitutional Prohibitions in General i 92k2789 k. Penal laws in general. Most Cited Cases Constitutional Law 92 W2790 92 Constitutional Law 92XX111 Ex Post Facto Prohibitions - 92XXIII(A) Constitutional Prohibitions in General ij 92k2~790 k. Punishment in general Most Cited Cases . . f 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 Constitutional Law 92`€=»2789 ' 92 Constitutional Law 92XXIll Ex Post Facto Prohibitions l v 92XXII_I(_A) Constitutiona,l Prohibitions in 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. l. [11] Criminal Law 110 @1920 1_10 Criminal,Law l lOXXXl Counsel 1 lOXXXI(C) Adequacy of Representation l 10XXXI(C)2 Particular Cases and lssues 110kl920 k. Plea. Most Cited Cases The question of whether parole eligibility forms an affirmative part or essential element of the - plea agreement is n_ot determinative of the court's deficient performance inquiry under the Slrickland test for ineffective assistance of counsel; abrogat- ing, Ex parte Evcms, 690 S.W.2d 274. U.S.C.A. Const./\mend. 6. 1121 Habeas Corpus 197 @486(3) 197 Habeas Corpus 19711 Grounds for Relief; lllegality ofRestraint 19711(B) Particular Defects and Authority for Detention in General 197k482 Counsel .. l97k486 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/_cmd 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. 1131-citrninal Law 110 €=»1882 © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 3 110 Criminal Law . 110XXX1 Counsel 1 lOXXXl(C)- Adequacy of Representation 110XXX1(C)1 In General ~ 1_101t1879 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 @1920' 1 10 Criminal Law l lOXXXl Counsel l lOXXXl(C) Adequacy of Representation 1 10XXX1(C)2 Particular Cases and lssues 110kl920 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 Law 110 €>=>1920 1 10 Criminal Law l lOXXXI- Counsel _ l lOXXXI(C) Adequacy of Representation . 110XXX1(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- va S< i"': ' fine-r@a;;'st? ; Abi'lszne C . . /-\loiler‘,e. .' 361 S.Wi.3d 684 (Cite as: 361 S.W.3d 684) rect advice. U.S.C.A. Const.Amend. 6; Vemon's AnnTexas C.C.P. art. 42.18(8)(b)(3) (Repealed). [16] Criminal Law 110'@1920 110 Criminal Law ' iioxxxl Counsel . l lOXXXl(C) Adequacy of Representation 1 10xxX1(c)2 Part16n1ar Cases and lssues 110kl920 k. Plea. Most Cited Cases 5 Defense counsel's misinformation to lmurder _ 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; Vemon's AnnTexas C.C.P. art. 42.18(8)(b)(3) (Repealed). ` *686 Rand Schaffer, Houston, for Appellant. y Andrew J. Smith, Asst. D.A., Houston, Lisa C. McMinn, State’s Attorney, Austin, for State. OPINION JOHNSON, J., delivered the opinion of the Court in which_PRlCE, 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. Moussazadeh v. S/a!e, 962 S.W.2d 261 (Tex.App.-l~louston'[l4th Dist.] 1998, pet, ref‘d) ( Mous.razadeh 1 ). Thereafter, applicant filed an ap- plication for habeas corpus relief. In a published opinion, we denied relief because applicant “failed 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 Fage 4 element of the plea agreement.” Ex parte 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.2d 16 (2002) ( Moussazadeh II, #' AP~74,185). Applicant filed a subsequent applica- tion for writ of habeas corpus, Moussazadeh III, # APe76,439, 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, Mc)us- .razadeh l[, and grant relief. App|icant'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 McPherson, 32 …S.W.3d ' 860, 861 (Tex.Crim.App.ZOOO). In Mc)ussazadeh II, we discussed how applic- ant, under indictment for a capital murder commit- v 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 "‘1ook-out” while one of his three co-defendants shot and killed a man during a rob- . bety. Mnnssnzn¢_le/t 11, 64 s.w.3d at 406-07. while 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. The agreement included applic- ant's promise to. testify at a co-defendant‘s trial, which he did. Id. at 407-09. During that ttestimony, 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. Ia'. 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 wasl 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 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 l, 1993, a person serving a life sentence for capital murder was not eligible for parole until serving a flat 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 flat one-" ` fourth of his sentence, up to a` maximum of `15 years. TEX.CODE CRIM. PROC.'Art. 42.18, § 8(b)(3). After September 1, 1993, a person whose conviction contained a deadly weapon finding was requiredto» serve a flat one-half *688.of the © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. :/1_;3§1§), 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 rsentence 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 of these statutory changes. lndeed, 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 lThere 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 proves 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 Mn_us.tnzadeh 11, we he1d that a finding that parole eligibility formed an essential part of a plea agreement must be founded upon the express terms t 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 v et 6 -__._;:;__ ~` ~ft'le-tc;;~»~'e:' ' n /"\lf;\_ll.i'j?f`l;- 361 S.W.3d 684 (Cite as: 361 S.W.3d 684) agreement made between the prosecution and ap- plicant.” lcl. 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- v duced by a misunderstanding of the applicable pa- role law which formed an essential element of the plea agreement.”.]d. '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 Prior to applicant's plea, trial counsel advised applicant about his parole eli- 'gibility, and that advice was incorrect. As we stated in M<)ussclzadeh 1], “The 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]. lndeed, 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- sazaa’eh 11l 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_]*11`// v. Loc/thart, 474 U.S._52, 56, 1:{06 S.Ct. 366,`88 L.Ed.2d 203 (198_§) (quoting Mc- iMann v. Rl`chardson, 397 U.S. 759, 771, 90 S.Ct. _ `1'441, 25 L.Ed.2d 763 (1970); “vnhtntanness dr 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 `r_S.W.2d 370, 372 (Tex.Crini.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‘I-]arring- lon, 310 S.W.3d 452, 459 ('l`ex.Crim./-\pp.2010) (“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’- diI/a v. Kentuc/ty, 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 Mvussazadeh II. The state contends that-Padilla _has no bearing upon the Court's disposition of applicant's claim j and that Ex parte Evans and Mt)ussazadeh 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.” 1 We conclude that both applicant and the state are partly correct: padilla is not applicable to the facts before us, and our decisions in _Ex parte Evans and Mous.razadeh 11 were incorrect. We now dis- , avow our prior decisions in Ex parte Evans and Moussazda'eh ll to the extent that they (1) require ‘parole-eligibility misinformation to form dan'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 Ex parte Eva_ns, 690 S.W.2d at 279. However, E\)ans stated that, because “eligibility for parole is a fluctual [sic] societal de- _ cision; highly subject to change," id. at 278,`§{:_anjap-§i` tp'licant must-prove, by a preponderance of the evi;dji xence,,_tha`£_§-par<')jle` eligibility was an affirmative pari or essential element of the plea bargaii_i. Id. This is an incorrect statement of the law. While the ' general eligibility rules for parole may change over time, the§eiigibility-rules"remain the same for a 'giv§ en conviction Likewise, an inmate who was eli- gible for mandatory release at the time of the of- _ ~ fense remains eligible for mandatory release on that conviction, even if that offense subsequently be- comes eligible for only discretionary mandatory re- v 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.”§Exr»partele-Thomps_on, ’ = l 73 `-S.'W.~3 d» 458,' 459 (Tex.Crini.App.ZOOS)j;; 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 parte-Evans, 690 S.W.2d at 279§, 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 lnot render a plea involuntary Id. In Moussazadeh II, we further conflated the concepts of eligibility and attainment v t n 1 FN2. .See also Ex parte Tr_ahqn, 78‘_1` *`s.W.zd 291, 292_93 _(Tex.Crnn.App.wss) ` (written plea memorandum reflected that- applicant would'become eligible for parole consideration after having served one- fourth of sentence; habeas relief available when thatiwas not the law and terms of pleaagreement 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- ` © 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 eligibilityl 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.” See,Ex..pa):te Carillo, 687 S..W.2d 320, 325 ('I`ex.Cri1n.App.l985) (Miller, J.i 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. 'l`he 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 amendrnent. 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, . 874-75 (Tex.Crim.App.l97l>) (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 Constitutions). Parole-cligibility require- ments are direct consequences because they are a definite and largely automatic result of a guilty _ plea. See_ Mi¢.§¢h/te-v. sra/e,_ 1_29_ §.wsd___130,13’5`_; (Tex.Crim.App.2004): Parole attainment, -on the other hand, is not governed by statute and is gran- ted at the discretion ofthe parole board ' FN3. A law that changes the punishment ;\,,1_@'_,_,. _ . 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 ;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.l97l) '(op. on reh'g)§ Ex . parte Scoll, 471 _ S.W.2d ‘54, 55-6 (Tex.Criin.App.l97l). “[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 l that crime” Rooney v. No/'Ih 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` .S`trick/ana’ protocol as expressed in these cases may be stated generally as “but for the erroneous advice of counsel, the ap- plicant*69l would not have plead guilty." Eir parte Ha/')'ington, 310 S.W.3d at 458. See also Ex parte Moody, 991 S.W.2d 856, 858 (Tex.Crim.App.l999) ; Ex parte Stephenson, 722 S.W.2d 426, 428 ('l`ex.Crim.App.l987). [l l] 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 Stric/t[ana'. [12] To obtain habeas corpus relief on a claim . `.of involuntary plea, .an ,applicant_ must .meet both prongs ofthe Stric/tlanc/ standard: (l)`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 parte4 _ Whire, 160 s.w.3d 46_, 49 (r@x.Cri'tn./tpp.2004). 1n § 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 Id. at 51; Strick/and v. Was/ung- ton, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The constitutionally appropri- ate level of reasonableness is defined by»the prac- tices and expectations of the legal community and prevailing professional norms therein Strick/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 proi/iding 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 Crim. 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 lnstead, 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 paro_le.`The fact that the amendments took effect only eleven days before the offense is of no consequence . -FN4. .P.arole eligibility is not speculative ln this case, parole eligibility -was.statutor- _ ily determined and, at the time of the plea, there was no speculation about those stat- utory terms Those terms of parole eligibil- ity were clear, succinct, and expli‘cit. lt 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 eincorrect 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 double 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 wi`)uld 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 FN5. “Ijlad ‘Judge Azios; Mr. Jones, or Mr.' C‘;ogdell§;,;t‘old`mel 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, 1 would not have accepted the plea bargain.” v Accordingly, upon reconsideration we grant relief. Thejudgment in this cause is hereby vacated, and-applicant is remanded to the custody of the Harris County Sheriff to answer the charges set out in the indictment/The trial court shall issue an ap- propriate bench warrant within ten days after the . ~ mandate of this Court issues Copies of this opinion 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 MEY- ERS, J., did not participate © 2012 Thomson Reuters. No Claim to Orig.tUS Gov. Works. "\~l~`llf"’"i _ Page 9 KELLER, P,J., concurring ln overruling Ex parte Evans,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 Crau_)/ora' v. Washington,‘ 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 1 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? lf the Court is going'to overrule prior precedent on habeas review, as it does here, l believe that it should clearly explainhow this fits into our retro- activity jurisprudence FNi. 690 (Tex.Crim.App.1985). sw.zd 274 FNZ. Teague v. Lane, 489 U.S. 288, 109_ S.Ct. 1060, 103 L.Ed.2d 334 (1989). FN3. Danforth v. Minnesota, 552 U.S. 264, 128 S.Ct. 1029, 169 L.Ed.2d 859 (2008); Ex parte Lave, -257 S.W.3d 235, 237 & n. _ 15 (Tex.Crim._App.2008). _FN4. '541 `U.S. 36, 124 ~S.Ct.'-l354, 158 L.Ed.2d 177'(2004). 'FNS. ane, 257 s.w.3d at `237; Ex parte Keirh, 202 S.W.3d 767 (rex.cnm.App.2006). 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 liles-§§ 5761` iii _ 361 S.W.3d 684 _(Citc as: 361 S.W.3d 684) v 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. 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 . l 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 anew trial FN6. See Ex parte Moussazadeh, 64 S.W.3d 404, 408 (Tex.Crim.App.ZQOl). FN7. See TEx.coDE cRrM. PRoc. art. 42.12 § sg; rEx. oov'T coDE § 508.145(<1). 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 eligibilii_y]¥voas an 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 Evans, we said in that cases FN10. Id. at413. FNI l. See id. No overt sanctioning of this advice by the judge or the prosecutor appears in the record and it doesr not appear to have been a part of the plea bargain We realize that it is common for the parties to play t_he 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 sw.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_. §Hooper v. State, 214 S-.W.3d 9, 16.-`17 (Tex.Crim.App.2007). If it were ne- cessary to decide whether Hoope/"s'pro-_ nouncement regarding inference stacking ' constituted a,_new 2rule under .Teague, .1 would hold that it doesnot, because, re- gardless of the scope ofil`exas's version of v Teague's proscription against announcing new constitutional rules of criminal pro- ' cedure on habeas see Danfo/'Iii, supra, suc_h a proscription cannot apply to basic © 2012 Thotnson Reuters. No claim to ong. 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. ’ln this case, it is enough to hold that, if counsel does con- vey this type of information, he must do so c_or- 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 l agree that applicant is entitled to a new trial, 1 do notjoin the Court's opinion l concur in the Court's judgment ' 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. j Page 11 -:_~;-,».~:.'»`\ No. ND 5591 (Single Count) TRN 010 107 3208 THE STATE OF TEXAS v. JAMES ALLEN PELLOAT, DEFENDANT ' ' §I_Q: TX § § § F`lLED FOR RECUli'D IN THE 1-A JUDICIAL DisTchr coURr or;t NEWTON coUNTY; .: illREE ALLEN 151 T ClEftii 011 0 7 , JUDGMENT oF CoNvlchoN BY COURT; SENTENCE TO Institutional Division. TDCJ DATE oF JUDGMENT; JUDGE~PRESIDING; ArToRNEY FoR THE srArE; ATTORNEY FoR THE DEFENDANT; O_FE_I`£SE S'l`A'l`UTE FOR OFFENSE; _ DEGREE OF OFFENSE: APPLICABLE PUNISHMENT RANGE tincluding enhancements if any): DATE OF OFFENSE: CHARGING INSTRUMENT: TERMS OF PLEA AGREEMENT 11N DETAIL}: _PC_EA_TQQ\M_S_E PLEA TO ENHANCEMENT ' PARAGRAPH§S): VERDICT FOR OFFENSE: FINDING ON ENHANCEMENT: AFFIRMATIVE FINDING ON DEADLY WEAPON: OTHER AFFIRMATIVE SPECIAL FINDINGS: DATE SENTENCE IMPOSED: PUNISHMENT AND PLACE OF CONFINEMENT: TlME CREDITED TO SENTENCE: March 24, 2005 Monte D. Lawlis A. W Davis, Jr. William S. Morian, Jr. lmproper Re|ationship 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&pg:(cases, all 2"d Degree Felonics: No. ND-599l, lmproper Re|ationship (2|.12 P.C.); ND-§sSe,-Sexuaf-Assault-(-H-\OI-l-P=€-.)? ND-5593, Sexual Assault (21.011 P.C.); ND-5594 lmproper Re|ationship (21.12 P.C.); and ND-5617 Sexual Assault (2!.0|1 P.C.), reduced from Aggravated Sexual Assault (22.021 P.C.). Case No. ND-5618, lmproper Re|ationship (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-5992 and the sentence in c se No. ND-5617 to run consecutively The sentences in the 336 remaining cases are to run concurrently De|'endant 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 'I`wenty (20) years in the Institutional Division-TDCJ, and §§ fine 138 days DSZ: Judgmcnt of Conviction by Coun; Dircct Scmcnce, Cause No. ND 5591; Page 1 of 3 Pages 211511111 211 1=> ga 32 FILED FOR RECoRB No. ND 5593 (Single Count) TRN 010 107 3208 2005 HAR 214 13 2: 3 3 IN THE 1_A mmch THE STATE OF TEXAS v. § DISTRICT coURT @FI‘ `JAMES ALLEN PELLOAT, NEWTON COUN'W;~¥E x DEFENDANT SI_D: TX JUDGMENT OF CONVICTION BY COURT; SENTENCE TO Institutional Division. TDCJ DATE OF JUDGMENT: W ATroRNEY FoR THE sTATE: ATroRNEY FOR THE DEFENDANT: MS£ sTATUTE FOR oFFENSE; DEGREE OF OFFENSE; APPLICABLE PUNISHMENT RANGE (inc|uding enhancements, if any): DATE OF OFFENSE: CHARGING INSTRUMEN,'E 'I`ERMS OF PLEA AGREEMENT §IN BE'I`AIL): _ PLEA To 0FFENSE: PLEA To ENHANCEMENT PARAGRAPH(s): vERDIcT FOR oFFENsE: FINDING oN ENHANCEMENT; AFFIRMATIVE FINDING 0N DEADLY wEAPoN; OTHER AFFIRMATIVE sPEcIAL FINDINGS: DATE sENTENcE IMPOSED: PUNISHMENT AND PLACE 0F ' coNFer§MENT; TIME CREDITED TO SEN'I`ENCE: COURT COSTS: March 24, 2005 Monte D. Lawlis A. W Davis, Jr. William S, Morian, Jr. Sexual Assault Section 22.011, Penal Code Second Degree Felony Second Degree 2-20 yrs in prison/max $l0,000 fine November 7, 2004 . Indictment ‘ - few James Allen Pelloat will plead gullty to the following cases, all 2"d Degree Felonies: No. ND-5991, lmproper Re|ationship (21.12 P.C.); ND~5593, Sexual Assault (21.011 P.C.); ND~5594 lmproper Re|ationship (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-56l8, lmproper Re|ationship (21.12 P.C.) will be dismissed. Tlie defendant will receive a sentence of twenty (20) years on each of the é~°e“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 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 Institutiona| Division-TDCJ, and M fine 138 days . None DSZ: Judgment of Conviction by Coun; Direct Sentcnce, Cause No. ND 5593; Page l of 3 Pages No. ND 5594 (single Coum)TRN 010 107 3208 THE STATE OF TEXAS v. JAIv[ES-ALLEN PELLOAT, DEFENDANT _S_I_Q: TX F'¢'LED‘FUR REcoRn ' 2005 MAR 211 13 2= 33 IN THE 1-A JUDICIAL -» DISTRICT C0URT 01=,;=_=_;,~§~§ NEWTON coUNTY, m JUDGMENT OF CONVICTION BY COURT; SENTENCE TO Institutional Division, TDCJ' DATE OF JUDGMEN'I`: JUDGE PRESIDING: ATTORNEY FOR THE STATE; _ - ATTORNEY FOR THE DEFENDANT: MM STATUTE FOR OFFENSE: DEGREE OF OFFENSE: APPLICABLE PUNISHMENT RANGE (including enhancements, if any)f . DATE OF OFFENSE: CHARGING INSTRUMENT: TERMS OF PLEA AGREEMENT DETAIL : PLEA TO OFFENSE: ,PLEA TO ENHANCEMENT . ,_ PARAGRAPH(S [: VERDICT FOR OFFENSE: FINDING ON ENHANCEMENT: AFFIRMATIVE FINDING ON DEADLY ' WEAPON: OTHER AFFIRMATlVE SPECIAL FINDINGS: DATE SENTENCE IMPOSED: PUNISHMEN'I` AND PLACE OF CONFINEMENT: TIME CREDITED‘TO SENTENCE: March 24, 2005 Monte D. Lawlis A. W Davis, Jr. William'S. Morian, Jr. lmproper Re|ationship 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&rcases, all 2"" Degree Felonies: No. ND-599l, lmproper Re|ationship (2|.12 P.C.); Writ-Assault (21.011 P.C.); ND-5593, Sexual.Assault (21.011 P.C.); ND-5594 lmproper Re|ationship '(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 Re|ationship (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~S617 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 Applicable Not Applicable March 24, 2005 Twenty (20) years in the Institutional Division-TDCJ, and E_g fine 138 days ' DS2: Judgmem of Conviclion by Coun; Dircct Scntence, Cause No. ND 5594; Page l of 3 Page¢ l'_lQR-23-@6 11:58 QM DISTRICT CLERK No. ND 5617(sing1¢ comm TRN 010 107 3208 THE sTATE or TEXAS § v. . JAMES ALLEN PELLOAT, § DEFENDANT SI__D: TX § _ 499 379 9@8?. ‘.F’-'32 1050 FOR REcoRu 2005 nn 20 F> 232 v IN THE l-A JUDICIAL` 51:!;E,'.\1_LEN - DISTRICT COURT OEE'vv[izc)S:incTn'Crli/FRK 13 NEWTON cOUNWET§XAM JUDGMENT OF CONVICTION BY COURT; SENTENCE TO,Insnrucional l)ivision, TDCJ DATE OF`J[JDQM§N 1 ', ' JLJD§§E PRESIDING: ATTORNEY FOR THE STATE: ATTORNEY EQR THE DEFENQANT: . MM sTATUTE FOR' oFFENsE; E REE FENSE: D_Q_Q£_Ql"____ APPLICABLE PUNI§ HMENT RANGE U_£lll£.tnhmmmsms._if_gnyl `nclu ' : l DATE OF OFFENSEZ CHABQING INSTRUMENTZ TERM§ .QF PLEA AGREEMENT le DETML):' _ consecutively The sentences in the , PLEA T ENSE: ELEA TQ §NHANCEMENT FARAGRAPH S : V ICTF R FF SE: `FINDIN oN ENH T. _Q__ANQEM§L 4 AFFIRMAT!X§ FINDMQ on DEADL WEAPON: organ AFF;MATWE SPECIAL FINDINGS: DATE §ENTENCE IMPQ§§Q; PUNTSHMENT AND.PLACE OF _ goNFn~rEMENT: _ T;M§ cREDITED To §ENIENCE: COURT COSTS: March 24, 2005 , Monte D. Lawlis A. W Davis, Jr. - Williat_n S. Morian, Jr'. Sexual Assault Section 22.011, Penal Code Second Degree Felony Second Degree 2-20 yrs in prison/max $10,000 fine On or about May 01, 2002. Indictment James Allen Pelloat will plead guilty to the following-M&S€S, _ all Z"d Degree Felonies: No. ND-599l, improper Relatlonshlp` (21,12 P,C.); _ , ND`-5593,: Sexual Assault (21.011 P.C.); ND-5594 lmproper Relatlonship_ _ (21.12 P.C.); and ND-$61'7 Sexual Assault (21.011 P.C-). reduced from Aggravated Sexual Assault (22.021 P.C.). Case_ No. ND-5618, lmproper Relatlonshlp (21.12 P.C.) . will be` dismissed. The defendant wi'lJ receive a sentence of twenty (20) years on each of the-§§ cases, with the sentence in case No. ND-5992 and the sentence in c e No. Nn.salv co run remaining cases are' to run concurrently. Del'endant Wi_ll receive credit for time ' served in the Newton County Jail in the amount of 138 daysl Guilty Not Applicable Guilty Not Applicable Not Applicable Not Applicable March 24, 2005 'I\rve_nty (20) years in the ' ' Institutional Division-TDCJ, and _N_q fine 138 days None DSZ: Judgmcnt of Conviction by Coun; Direct Sentence, Cause No. ND 5617; Page l of3 Pag¢s ,