Pelloat, James Allen

15 v1051 ~0103 OL/
9 D 10 110

IN THE COURT OF CRIMINAL APPEALS §§TTE”©N DENDE©
CAUSE-75, 937-07, WR-75, _937-06, WR-75, 937-08 :-==-‘===;§,
' TR CT 5617, 5593, 559l-A

STATE QF TEXAS , RECE!VED IN 1
- CCURT OF CRlMINALAPPEALS
V.‘
Nuv 04 2015
JAMES ALLEN PELLOAT, APPELLANT PRO SE
Abe!Acosta, Clerk
MOTION FOR RECONSIDERATION EBOM DECISION RENDERED IN THE COURT OF

CRIMINAL 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:
1

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 light to tile his amended 1107 was protected. Once he
received all of the supplemental records &om 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 (1) 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 Count`y`Distlict Clerk.

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 horn 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
from January to March 2015, he immediately filed a motion with the judge in his case to have the

District Clerk process his amended 1107. 'I`he District Clerk never processed his 1107 and merely kept

the motion un-tiled 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 Procedure Rule 1107 also severely prejudiced his access to the courts.

|l=‘

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 Attorney stated that “His attorney
knew about the enactment of September 11 2003, for P._C. 21 .12” on item number 12. This meant that
his attorney, William 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 _E_)g Partv Mou_ssazadeh 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.

With the two, possibly three, illegal P.CI 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.

Washington and items mention in I, II, and III proving the first prong of Slrickland.

In January 2005, Appellant was indicted (see indictment 5617) for Aggravated Sexual Assault
that allegedly occurred on May l, 2001. Through school docurnents, the attorney proved that Appellant
had not been hired to teach in Nevvton ISD. The day 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 Attorney 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

On March 23, 2005, Appellant appeared before the Honorable Judge Monte Lawlis for
acceptance of Appellant's plea bargain and sentencing Appellant's attomey, 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 Attomey openly committed perjury by

consciously lying concerning the lesser included crime.

PRAYER

Appellant, J ames 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,

J ames Allen Pelloat

TDCJ # 1289716

CT Terrell Unit (R-3)

1300 FM 655

Rosharon, Texas 775 83-8609

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:

Abel Acosta, Clerk §cw~\w; ®§L§Lv\ gm

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

Bree Allen, District Clerk
lA Judicial Court

PO Box 535

Newton, TX 75966

CAUSE Nos. 5591, 5593, 5594 & 5617 `

THE STATE OF TEXAS TN THE DISTRICT COURT

VS. l-A JUDICIAL DISTRICT

*****

JAMES ALLEN PELLOAT .NEWToN coUNrY, TEXAS

PLEA

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

District Court of Newton County, Texas: `

Ell=EQ
A¢ 51100 o'c¢ock§__" 1

OCT 19 2011

BR E ALLEN
D rk. n County, Texas
By ’

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APPEARANCES

FOR THE STATE: MR. A.W. DAVIS

DISTRICT ATTORNEY
NEWTON, TEXAS - -

FOR THE DEFENDANT: MR.WILLIAM MORIAN

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. MORlAN: 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 I just named?

Tl-IE 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?

THE DEFENDANT: Yes, sir.

THE JUDGE: Are you entering this plea of guilty freely and voluntarily?

THE DEFENDANT: Yes, sir.

THE JUDGE: ln each case?

THE DEFENDANT: Yes, sir, in each case.

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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: Thank 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 Decer`nber the 6th of 2004. There has 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 indictrnent, 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 -- admonishrnents document which
also includes the various waivers of the defendant, a
judicial confession signed by the defendant; along with

l signatures of the defendant, his attomey, 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.

Atter Your Honor has finished disposing of the case, at

some point in this proceeding there are victims and

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

THE JUDGE: 5591. If you would recite that -

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MR. MORIAN: Judge, these »- these --the plea recommendation is _
basically to dispose of all cases at the same time, and
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
l had a chance to study that and go over that; is that correct?

THE DEFENDANT: Yes,
_ THE JUDGE: In all cases?

THE DEF_ENDANT: Yes, sir.

THE JUDGE: What I’xn going to do, I 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.- An right Your Honor, at this time maybe it would be g
appropriate for the record if I went ahead and just stated them"m
plea bargain as the State understands it and hopefully §s\ “ C_l_'~/,~,,,,/
defendant understands - " \‘§}.§-l ..... _CO ’

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rim JUDGE: An right
MR. DAVIS: - it at this point-, before we go to one case at a tirne.
THE JUDGE: All right Go ahead .

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;"to run
consecutively as opposed to concurrently; and that is the
- basis of the agreement

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 g
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.

THE JUDGE: All right Let - let me do this then. And this will
apply to all -- all four cases. ls this the agreement, Mr.
Morian?

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 -~

THE JUDGE: Au right

MR DAVIS: - for Your Honor’s'consideration. §§

THE JUDGE: ls this the agreem` l ent? §§ § vt ' \
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THE DBFENDANT; yes, sir. 1 OUNT`l

THE JUDGE: All right. And you understand that initially 5592 was to be
` a part of this plea agreement, but there is no agreement

. with reference to that case and that case has been §
. withdrawn, and the State’s attorney will have the option to l
call that case 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?

THE DEFENDANT: 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. l
THEJUDGE: - correct? All right ' v ;
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 --4 ' z
THE JUDGE: Yes. - ’
Ma DAVIS: -- with the first one. g

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

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MR DAVIS: I’ll do them one at a time if you’d want me to. §2 :"' ".73‘:=§

'rHEnJDGE; Yes, sir. :Z,,"-.,§/\ _.~"§§’

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Ex Parte MouSSazadeh, 361 S.W. 3d 684 (Tex. Crim. App. 2012)

' ( ll PAGES )

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_ 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 `

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

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 , `

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

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

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

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- `

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-

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

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

' ' 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

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

j Page 11

-:_~;-,».~:.'»`\

No. ND 5591 (Single Count) TRN 010 107 3208

THE STATE OF TEXAS

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 ,