The majority opinion concludes: "[A]pplicant has not pled facts which, if true, would entitle him to relief." Notwithstanding that I have construed applicant's application for the writ of habeas corpus in the most liberal of fashions, but given the present state of the record, I am compelled to agree with the majority opinion's conclusion that applicant has not plead sufficient facts which entitle him to relief.*
The record before us reflects that on April 7, 1987, pursuant to a plea bargain agreement, Leobardo P. Gonzales, henceforth applicant, agreed to plead guilty, and he did plead guilty, to committing on November 28, 1986, the offense of attempted murder. The second part of the plea bargain agreement was that applicant agreed to plead "true", and he did plead "true", to each of the two alleged enhancement allegations; a 1976 conviction for committing *Page 649 the offense of murder and a 1957 conviction for committing the offense of aggravated assault with intent to commit the offense of murder. The third and final part of the plea bargain agreement was that applicant's punishment would be assessed by the trial judge at thirty-eight (38) years' confinement in the penitentiary, which is what the trial judge assessed.
Thereafter, and pursuant to Art. 11.07, V.A.C.C.P., applicant mounted a collateral attack on the above 1957 conviction. On July 13, 1988, this Court granted him relief and set aside the 1957 conviction.
Subsequent thereto, but also pursuant to Art. 11.07, supra, applicant, having been partially victorious, filed the present application for the writ of habeas corpus in the trial court, asserting therein that his 1987 conviction and sentence of 38 years were invalid because his trial attorney was ineffective for failure to properly investigate the 1957 conviction that had been used to enhance his punishment in the 1987 conviction, which 1957 conviction this Court had previously ordered set aside, which occurred after applicant was convicted and sentenced to the 38 years. Applicant essentially contends in this writ application that had counsel properly investigated the validity of the 1957 conviction before applicant pled guilty to the primary offense and true to each of the enhancement allegations, he would have learned, as this Court so held in 1988, that it was invalid because applicant did not have counsel in 1957 when his probation was revoked by the trial judge. Applicant obviously, but erroneously, believes that once the 1957 conviction is removed from his present conviction, this will cause the range of his punishment to be not less than 2 years nor more than 20 years, with the possibility that a fine might also be imposed. Applicant's reasoning is obviously faulty. I pause to point out that applicant does not allege any facts that would warrant this Court setting aside the 1976 conviction. Thus, applicant is mistaken when he asserts that both of the alleged prior convictions are void, i.e., that under any circumstances the range of punishment, as to confinement, would have been not less than 2 years nor more than 20 years' confinement in the penitentiary. However, the 1976 conviction has not yet been set aside, and, as noted, applicant does not in this application challenge the validity of that conviction. Therefore, the correct range of punishment, as to confinement, was not less than 5 years nor more than 99 years' confinement in the penitentiary, rather than not less than 25 years nor more than 99 years' confinement in the penitentiary.
The record is clear that under this Court's decision ofEx parte Scott, 581 S.W.2d 181 (Tex.Cr.App. 1979), applicant's attorney did not properly investigate the 1957 conviction prior to the time that applicant pled guilty and true in 1987.
For the above reasons, applicant may be entitled to relief, but not under the facts that he has pled in this cause. Therefore, I concur.
MILLER, J., joins the opinion.