Pelloat, James Allen ( 2015 )

1 101§1~0 03100/
119 10 119
lN THE COURT OF CRIMINAL APPEALS M©YB©N HDEONBE‘©
CAUSE-75, 937-07, WR-75, 937-06, WR-75, 937-08 @ATE :=-§=;
'I``R CT 5617, 5593, 5591-A
STATE OF TEXAS 1 RECEIVED lN
- CGURT OF CRlMlNAL APPEALS
V.
NUV 04 2015
JAMES ALLEN PELLOAT, APPELLANT PRO SE
Abet Acosta, Clerk
MOTION FOR RECONSIDERATION FBOM DECISION RENDERED IN THE COURT OF
CRIMINAL APPEALS
Now comes Appellant, Jarnes Allen Pelloat, in the above cause(s) to request reconsideration from this
court of the decision rendered on 8/14/2015. ln support of this reconsideration, the Appellant submits
the following:
l
Appellant made every effort available to him to follow the proper procedure and has shown due
diligence to ensure as best he could his statutory right to file his amended 1107 was protected. Once he
received all of the supplemental records from Newton County that were filed in this original l'107, 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 CountyMDistn``ct Clerk.
He periodically sent letters alter he submitted his amended 1107 to Ms. Allen asking about the
status. Two copies of such letters are included-in this motion as an exhibit. He never received a \
response from Ms. Allen in 2013.
He was diagnosed with state 3 prostate cancer and began receiving treatment via surgical
removal and radiation treatment Upon the completion of his hospitalization and therapy of 6 weeks
from January to March 2015, he immediately flled a motion with the judge in his case to have the
Distn``ct Clerk process his amended 1107. The District Clerk never processed his 1107 and merely kept
the motion un-iiled and on moot status. This prejudiced his due process right and access to the courts
t
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=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 l, 2003, for P.C. 21.12” on item number 12. This meant that
his attorney, William l\/Iorian, 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 nom Appellant,
his counsel was ineffective and incompetent See Ex Pal;g Moussazadeh 361 sw 3d 648. 'I``he
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.
' m
\Vith the two, possibly three, illegal P.Cl 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 17"‘
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 Strickland v.
Washington and items mention in I, lI, and III proving the first prong of Strickland.
m
In January 2005, Appellant was indicted (see indictment 5617) for Aggravated Sexual Assault
that allegedly occurred on May l, 2001 . Through school documents, the attorney proved that Appellant
had not been hired to teach in Newton ISD. The day of the plea bargain conference, District Attorney
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 attorney, 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 Attorney lowered the charge h‘om 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 attorney, Mr. Morian, questioned
the lowering of cause 5617 from Aggravated Sexual Assault to Sexual Assault to make clear that it was
lowered as a lesser included offense (see trial transcripts). The District Attorney stated, “Yes, it was
lowered as a lesser included crime and it was plainly written on the judgments.” The judgments at no
time show a “lesser included crime” showing that the District Attorney openly committed perjury by
consciously lying concerning the lesser included crime.
PRAYER
Appellant, James Allen Pelloat, prays this Honorable Court will accept this Motion for
Reconsideration and bring this cause back before the court for proper redress.
Humbly submitted,
QBWMQM
Jarnes Allen Pelloat
TDCJ # 1289716
CT Terrell Unit (R-3)
1300 FM 655
.Rosharon, Texas 775 83-8609
CERTIFICATE OF SERVICE
l, James 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 §c.»~\w ®$L§U/\ @M
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 75 966
CAUSE NOS. 5591, 5593, 5594 & 5617
THE STATE OF TEXAS IN THE DISTRICT COURT
VS. l-A JUDICIAL DISTRICT
*****
JAMES ALLEN PELLOAT NEWTON COUNTY, TEXAS
PLEA
On March 24, 2005 the following proceedings were had in the l-A Judicial 1 §
District Court of Newton County, Texas: ``
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OCT 192011v
BR E ALLE:'N
D rk, n County. Texas
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APPEARANCES
FOR THE STATE: MR. A.W. DAVIS
DISTRICT ATTORNEY
NEWTON, TEXAS ~
FOR THE DEFENDANT: MR.WILLIAM MORIAN
SEALE, STOVER & BISBEY
JASPER, TEXAS
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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 IUDGE: All right Do you wish to have the indictments read?
MR. MORIAN: No, Your Honor. We’ll waive the reading.
THE IUDGE: ls -- is the defendant the same person named in each
indictment and is his name spelled correctly?
MR. MORIAN: Yes, Your Honor.
THE JUDGE: All right, at this time I’d ask the Defendant to stand.
THE DEFENDANT: (Stands).
THE JUDGE: Do you plead guilty or not guilty to the indictments in each
of the cases I just named?
THE DEFENDANT: The ones you just named, sir, I plead guilty to, yes,
sir.
THE JUDGE: Before l 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 IUDGE: And did you voluntarily sign these papers?
THE DEFENDANT: Yes, sir.
THE .TUDGE: Are you entering this plea of guilty freely and voluntarily?
THE DEFENDANT: Yes, sir.
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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 December 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 indictment, prior to the presentment of
the indictment in Newton County, Texas, did intentionally
or knowingly commit the acts described in the indictment
upon the victim, who was at the time younger than 17
years. `` ' - '
I’d ask you, Your Honor, to take judicial notice of all the
papers on file in the case, and in particular, the three page
guilty plea memorandum that’s signed by the defendant,
by his attorney, by me, and by Your Honor; the six page
written plea admonish -- admonishments document which
also includes the various waivers of the defendant, a
judicial confession signed by the defendant; along with
`` signatures of the defendant, his attorney, my signature, and
yours. And I’d particularly ask that you take judicial
notice of the two judicial confessions, one on page 5 ofthe
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.
Arter 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 IUDGE: All right Mr. Morian, is this the agreement in 55 1-
MK DAVIS: 5591.
THE JUDGE: 5591. If you would recite that -
g 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, l 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
c . with him since then going over the plea papers as well,
and explaining it to him. He does understand what we’re
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
1 had a chance to study that and go over that; is that correct?
THE DEFENDANT: Yes.
THE JUDGE: rn an cases?
THE DEFENDANT: Yes, sir.
THE JUDGE: What I’m 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: All right Your Honor, at this time maybe it would be
appropriate for the record if I went ahead and just stated the
plea bargain as the State understands it and hopefully
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Ex Parte Moussazadeh, 361 S.W.3d 684 (Tex. Crim. App. 2012)
( 11 PAGES )
_ \/\/e“§tlév\/,
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. Applicant filed subsequent
habeas``applicafion, 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:
``(l) it would reconsider, on its own initiative, ap-
plicant' s initial habeas application;
`` (2) question of whether parole eligibility forms an
affirmative part or essential element of the plea
agreement is not determinative of court's deficient
performance inquiry under l.'S``/r_ickland; abrogating,
Ex parte Evans, 690 S.W.'Zd 274; ``
(3) counsel's misin``formation"to defendant as to his
parole eligibility constituted deficient performance;
and
(4) counsel’s error prejudiced defendant and thus '
WaS ln€ff€€th€ aSSlStanC€.
Relief granted upon reconsideration
Kellcr, P.J., concurred in judgment,'with opin-_,``
ion.'
West`` Headnotes ``
© 2012 Thomson Reuters. No Claim yt"o Orig. US Gov. Works.
Cases
Page l
[l],Habeas Corpus 197 €>=9899
197 Habeas Corpus l '
b 1971V Operation and Effect of Determination;
Res Judicata; Successive Proceedings.
197k899 k. Dismissal or hearing on success-
ive petitions; evidence Most Cited Cases
Court of`` Criminal Appeals would reconsider,
on its own initiative, applicant‘s initial application
for writ of habeas corpus, which the Court had pre-
viously denied, and, thus, would dismiss applicant‘s
subsequent habeas application. Rules App.Proc.,
Rule 79.2(d). '
121 Haiié"as' corpus 197 <>=2894.1
197 Habeas Corpus
1971V Operation and Effect of Deterrnination;_
Res Judicata; Successive Proceedings
197k894 Refusal to Discharge; Subsequent
. Applications; Prejudice
1971<894'11 k. rn general. Most Cited
``
An initial application for a Writ of habeas cor- 4
pus seeking an out- of- time appeal does not consti-
tute a challenge to the conviction and does not bar
subsequent writ applications
»~4
' 131 Criminal Law 110 @273.1(31
1 10 Criminal Law'
110Xv Pleas
1101<272 Plea of Ginlty '
l 10k273 l Voluntary Character
l 101<2731(3) k. Effect ofillegal deten-
tion or violation of constitutional rights; illegally
acquired evidence MostCited Cases - l
Counsels advice can provide assistance so in-
effective that it renders a guilty plea involuntary.
U. S. C. A. Const. Amcnd-. 6.
[4] Criminal Law 110 @273.1(3)`` z ~ 1 )
110 Criminal Law ' "...
'1 IOXV Pleas
361 s.w.3d 684
(cire as; 361 s.w.sd 684)
‘ 110k272 Plea of Guilty
l 10k273.l Voluntary Character
l lOk273.1(3) k. Effect of illegal deten-
tion or violation of constitutional 'rights; illegally
acquired evidence Most Cited Cases
A guilty plea is not knowing or voluntary if
made as a result of ineffective assistance of coun-
sel. U.S.C.A. Const.Amend. 6.
[5] Criminal Law 110 6``/79273.1(3)
110 Criminal Law
l lOXV Pleas l
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
2841<42.1 k. ln general. Most Cited Cases
Prisons 310 @248
310 Prisons
31011 Prisoners and Inmates
31011(F) Duration of Confinement
310k248 k. Conditional release; com-
munity placement Most Cited Cases
The statute in effect when the holding offense
is committed determines an inmate's eligibility for
release on mandatory supervision or parole.
[7]Pa1:d0n and Parole 284 W48.1
284 Pardon and Parole
28411 Parole
_284k48 Eligibility for Parole or Parole Con-
sideration
Page 2
284’k48.1 k. ln general. Most Cited Cases
Parole eligibility requirements are direct con-
sequences ofa guilty plea because they are a defin-
ite and largely automatic result ofa guilty plea.
[81 Pardon and Parme 284 exam
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 a
92XX111 Ex Post Facto Prohibitions
92XX111(_A) Constitutional Prohibitions in
General
92k2789 k. Penal laws in general. Most
Cited Cases
Constitutional Law 92 €;>2790
92 Constitutional Law
92XX111 Ex Post Facto Prohibitions
92XX111(A) Constitutional Prohibitions in
General
92k2790 k. Punishment in general. Most
Cited Cases l
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. Ai-r. 1,§ 10,<;1. 1. `` 4
[10] Constitutional Law 92 6292789
92 Constitutional Law
92XX111 Ex Post Facto Prohibitions
92XXIII(_A) Constitutional Prohibitions in
General ,
92k2789 k. Penal laws in general. Most
Cited Cases
©~2012 Thomson Reuters. No Claim to'Orig. US Gov. Works.
361 S.W.3d 684
(Cite as: 361 S.W.3d 684)
1 10k272 Plea of Guilty
l 10k273.1 Voluntary Character
110k273.1(3) k. Effect of illegal deten-
tion or violation of constitutional rights; illegally
acquired evidence Most Cited Cases
A guilty plea is not knowing or voluntary if
made as a result of ineffective assistance of coun-
sel. U.S.C.A. Const.Amend. 6.
151 Criminal Law 110 ©=:>273.1(3)
110 Criminal Law
1 lOXV Pleas
110k272 Plea of Guilty
l 10k273.1 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 €=542.1
284 Pardon and Parole
28411 Parole
284k42 Constitutional and Statutory Provi-
sions
284k42.1 k. In general. Most Cited Cases
Prtsons`` 310 emma
310 Prisons
31011 Prisoners and Inmates
310II(F-) Duration of Confinement
‘ 310k248 k. Conditional release; com-
munity placement Most Cited Cases
The statute in effect when the holding offense
is committed determines an inmate's eligibility for
release on mandatory supervision or'parole.
[7] Pardon and Parole 284 @48.1
284 Pardon and Parole,
28411 Parol‘e
284k48 Eligibility for Parole or Parole Con- v
sideration
`` cited cases
Page 2
284k48.1 k. In general. Most Cited Cases
Parole eligibility requirements are direct con-_
sequences of aiguilty plea because they are a defin-
ite and largely automatic result of a guilty plea.
|8] Pardon and Parole 284 €,:>47
284 Pardon and Parole
28411 Parole
284k45 Authority or Duty to Grant Parole or
Parole Consideration
284k47 k. Discretionary nature Most
' Parole . attainment is not governed by statute '
and is granted at the discretion of_the parole board.
[9] Constitutional Law 92 @2789
92 Constitutional Law
92XX111 Ex Post Facto Prohibitions
' - 92XX111(A) constitutional Prohibitions in
General
92k2789 k. Penal laws in general. Most
Cited Cases
Constitutional Law 92 @2790
92 Constitutional Law
92XX111 Ex Post Facto Prohibitions
7 92XXIII(A) Constitutional Prohibitions in
General
f z
92k2790 k. Punishment rn general. Most
Cited Cases v
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 gU. S. CA.
Const. Art 1 §10, cl. l. ``
1101 constitutional Law 92`` <»>=:>2789
' 92 Constitutional Law
92XX111EX Post Facto Prohibitions `` 1
92XXII_I(A) Constitutional Prohibitions in
`` 'G_eneral
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. 1,§ 10, cl. l.
[11] Criminal Law 110 €;>1920
1_10 Criminal_Law
110XXX1 Counsel
l lOXXXl(C) Adequacy of Representation
fl lOXXXI(C)Z Particular Cases and lssues
110k1920 k. Plea. Most Cited Cases
The question of whether parole eligibility
forms an affirmative part or essential element of the -
plea agreement is not determinative of the court's
deficient performance inquiry under the S/ric/c/cmd
test for ineffective assistance of counsel; abrogat-
ing, Ex parte Ev¢ms, 690 S.W.2d 274. U.S.C.A.
Const./\mend. 6.
[12| Habeas Corpus 197 @486(3)
197 Habeas Corpus
19711 Grounds for Relief; Illegality of Restraint
197II(B) Particular Defects and Authority for
Detention in General
197k482 Counsel
.. 197k486 Adequacy and Effectiveness
of Counsel . , .
197k486(3) k. -Arraignment and
plea. Most Cited Cases
To obtain habeas corpus relief on``a claim ofin-
voluntary plea based on counsel's erroneous advice, ‘
a habeas corpus applicant must meet both prongs of
the St/'ick/and 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 perforrnance; 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-Cinnino1Law 110 @1882
© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 3
110 Criminal Law .
, l lOXXXl Counsel
1 lOXXXl(:C) Adequacy of Representation
1 lOXXXI(C)l In General -'
1_101<1879 standard or Errootive 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. l
[14] Criminal Law 110 ©@l920'
l 10 Criminal Law
l lOXXXl Counsel
l lOXXXI(C) Adequacy of Representation
110XXX1(C)2 Particular Cases and Issues
110k1920 k. Plea. Most Cited Cases
In situations in which the law is not clear, plea
counsel should advise a client that pending criminal
1 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
1 lOXXXI Counsel
1 lOXXXI(C) Adequacy of Representation .
l lOXXXl(C)Z Particular.Cases and Issues
110k1920 k.'Plea. Most Cited Cases _
Defense counsel's misinformation to murder~
defendant as to his parole eligibility,-on which de-
fendant relied in pleading guilty, constituted defi-
cient performance, as element of ineffective assist-
ance; parole eligibility requirements were pre-
sumptively mandatory, and counsel provided incor-
ua 5a ‘ "
fi'\ e»r@tan'a? 1
361 S.W'.3d 684
(Cite as: 361 S.W.3d 684)
rect advice U.S.C.A. Const.Amend. 6; Vernon's
Ann.Texas C.C.P. art. 42.18(8)(b)(3) (Repealed).
[16] Criminal Law 110'€)=91920
1 10 Criminal Law
`` 110xxx1 counsel v
l lOXXXl(C) Adequacy of Representation
1 10XXX1(C)2 Particular Cases and Issues
110k1920 k. Plea. Most Cited Cases
_ Defense counsel's misinformation to _murder
defendant as to his parole eligibility, on which de-
fendant relied in pleading guilty, prejudiced de``-
fendant, and thus Was ineffective assistance; por-
tion of defendant's sentence that had be served be-
fore he became eligible for parole was double the
portion that he was led to believe he had to serve,
and defendant swore in an affidavit that he would
not have pled guilty if he had known the actual time
he would have to serve, U.S.C.A. Const.Amend. 6;
Vernon's Ann.Texas C.C.P. art. 42.18(8)(b)(3)
(Repealed). ' '
*686 Randy Schaffer, Houston, for Appellant.
Andrew J. Smith, Asst. D.A., Houston, Lisa C.
McMinn, State’s Attorney, Au_stin, for State
. . OPINION
JOHNSON, J., delivered the opinion of the Court in
which>PRICE, WOMACK, KEASLER, HERVEY,
COCHRAN, and``ALCALA, JJ.,joined.
Applicant pled guilty to the offense of murder
without an agreement for punishment The trial
court accepted the plea and sentenced.applicant to
seventy-five years' incarceration. On direct appeal,
7 the court of appeals affirmed the judgment‘of the
trial court. Moussazadeh v. Slale, 962 S.W.Zd 261
(Tex.App.-Houston``[l4th Dist.]'1998, pet. ref``d) (
Moussazadeh 1 ). Thereafter, applicant filed an ap-
plication for habeas corpus relief. In a published
opinion, we denied relief because applicant “failed
to prove, by al preponderance of the evidence, that
his plea .was induced by a misunderstanding of the
applicable parole law which formed an essential
Page 4
element of the plea agreem'ent.” Ex par‘te Mous-
sazudeh, 64 S.W.3d 404,1413 (Tex.Crim.App.2001)
, cert denied 537 U.s. 813,``123 s.ct. 74, 154
L. Ed. 2d 16 (2002) (' Moussazadeh 11, #-
AP~74,185). Applicant filed a subsequent applica-
tion for writ of habeas corpus, Moussazadeh III, #
AP-_76,439, that *687 asserts that trial counsel's
mistaken advice regarding parole eligibility
rendered his plea involuntary. We ordered the sub-
sequent application filed and set for submission
After applicant filed the subsequent application, he
also filed a suggestion for reconsideration that asks
this Court, on its own motion, to reconsider its de-
cision in Moussazadeh II.
[1][2] This Court, on its own initiative,_may re-
consider a prior denial of habeas corpus relief.
TEX.R.APP. P. 79.2(d). We now reconsider, on our
own initiative, the claim raised in applicant's
second application for writ of habeas corpus, Mous~
sazadeh [1, and grant relief. Applicant’s sub-
`` sequent application, Moussazadeh III, is dismissed
FNl. Applicant’s first application sought
an out-of-time appeal, which We granted.
Ex parte Moussazadeh, No. AP-72,200
(Tex.Crim.App. delivered October 25,
1995) (not designated for publication).
Such an initial application seeking an out-
of-time appeal does not constitute a chal-
lenge to the conviction and does not bar
subsequent writ applications Ex parte
McPherson, 32 S.W.3d ~ 860, 861
(Tex.Crim.App.2000).
In Moussazaa’eh II, we discussed hoi)v applic-
ant, under indictment for a capital murder commit-'
ted on September 12, 1993, pled guilty to the re-
duced offense of murder without a sentencing
agreement Applicant, a juvenile at the time of the
offense, served as "‘look-out” while one of his three
co-defendants shot and killed a man during a rob-
y bery. Mouo-t``azadoh 11, 64 s.W.3d at 406_07. Whi``le
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. Ia’. at 407_09. Duririg that-testimony,
applicant indicated that he understood that, in
pleading guilty to the murder offense and because
of parole-eligibility laws', he was facing a signific-
antly'lesser term of imprisonment than he`` would
have faced if convicted of capital murder. Id. 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.l at
409.
Applicant's claim in his previous writ applica-
tion, Which we now reconsider, asserted that
“counsel's gross misadvice regarding parole eligib-
ility rendered applicant's guilty plea involuntary.”
He argued that “the matter of parole eligibility was
implicitly incorporated in [his] plea agreement.” He
also argued that his “guilty plea was involuntary
even if the matter of parole eligibility was not im-
plicitly incorporated in the plea agreement.” We
quote from our opinion in Moussazadeh']l.
lt is quite possible that no one in this proceed-
ing knew that the parole law had changed dramat-
ically just ll days before this robbery-murder.
Applicant’s parole eligibility is measured by the
law in effect on the date'of the offense Under the
law effective.until September 1, 1993, a person
serving a life sentence for capital murder was not
eligible for parole until serving a flat 35 years
TEX.CODE CRIM. PROC. Art. 42.18, § 8(b)(2).
After September l, 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 yveapon finding was not
eligible for parole until he had served a flat one-j
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 required``to~ serve a flat one-half *688_of the
© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 5
sentence up to a maximum of 30 years.
TEX.CODE CRIM.,PROC. Art. 42.18, § 8(b)(3)
(effective Sept. 1, 1993). Under the law effective
until September 1, 1993, a person convicted of
murder (but whose conviction did not contain a
deadly weapon finding) was eligible for parole
when his good time plus flat time equaled one-
quarter of the ``sentence up to 15 years
' TEX.CODE_CRIM. PROC. Art. 42.18, § 8(b)(3).
After September 1,'1993, a person convicted of
murder was not eligible for parole until he had
served one-half of his sentence or 30 years
TEX.CODE CRIM. PROC. Art. 42.18, '§ 8(b)(3)
(effective Sept. 1, 1993).
The affidavits submitted by both applicant and
his trial counsel with his habeas application state
that they did not know ofthese statutory changes
Indeed, we may fairly infer from the record that
the judge, prosecutor, and [the co-defendant's]
counsel shared the same misunderstanding
However, neither trial counsel's nor applicant's
affidavits state that the prosecutor agreed to make
applicant's parole eligibility a term or essential
element of. the plea agreement ~There is no evid-
ence that the prosecutor ever discussed any spe-
cific term or particular percentage of the sentence
that he believed applicant should or would serve
in return for the prosecutor's dropping the
charges from capital murder to straight murder.
In sum, we are unable to find any evidence »that
p_roves the prosecutor or judge caused applicant
to plead guilty based upon an incorrect under-
`` standing of Texas parole law. [Citation omitted.]
Id. at 409-10.
rn Mous.tozndeh-u, we held 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, th_e 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 -..``. thatparole eligibility
played any part, implicit or explicit,» in the plea
' antonio
~/ ~
, isn 19tle
361 S.W.3d 684
(Cite as: 361 S.W.3d 684)
agreement made between the prosecution and ap-
plicant.” ]c/. at 413. We therefore “den[ied] applic-
ant relief because he failed to' prove, by a pre-
ponderance of the evidence, that his plea was in-
duced by a misunderstanding of the applicable pa-
role law which formed an essential element of the
plea agreement ” lcl. Acknowledging our prior 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 Mozissazadeh 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]. Indeed, we may fairly infer from
the record that the judge, prosecutor, and counsel »
for [the co-defendant against whom applicant testi-
fied] shared the same misunderstanding.” Mous-
sazadeh II, 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. *689111'// v Loc/c_hart, 474 U.S. 52, 56,
106 S. Ct. 366, 88 L. Ed. 2d 203 (1985) (quoting Mc-
'_``Mann v. Richaidson. 397 U.8. 759, 771, 90 S. Ct.
c 1441, 25 L. Ed. 2d 763 (1970); “voluntariness of the
plea depends on whether counsel's advice ‘was
within the range of competence demanded of attor-
'~ neys in criminal cases’ ”). A guilty plea is not
knowing or voluntary if made as a result of inef-
fective assistance of counsel. Ex parte Burns, 60il
``18.W.2d 370, 372 (Tcx.Crim.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 l
knowingly Ex parte Baltle, 817 S.W.2d 81, 83
(Tex. Crim. App. 1991) See also Ex par le Ha/ring-
10)1, 310 S W. 3d 452, 459 (Tex. Criin App 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'-
dilla v. Kentucky, 559 U.S. _-, 130 S. Ct. 1473,
,176 L. Ed. 2d 284 (201;_0), and overrule our previous
decisions in _Ex parte Evans, 690 S.W.2d 274
(Tex.Crim.App.1985``), and Moussazadeh II.
The state contends that»Padi/la has no bearing
upon the Court‘s disposition of applicant's claim j
and that Ex parte Evans and Moussazadeh 11 are
“still based upon scund logic regarding parole eli-
gibility and parole attainment as being highly spec-
ulative circumstances that does [sic] not render a
guilty plea involuntary.”
We conclude that both applicant and the state
are partly correct: Paa'il/a is not applicable to the
facts before us, and lour decisions in _Ex parte Evans
and Moussazadeh ll were incorrect. We now dis- _
avow our prior decisions in 'E_r parte Evans and
Moussazadeh ll to the extent that they (1) require
`` parole-eligibility misinformation to form aan 'essen-
tial part of the plea agreement in order to makea
showing of.an involuntary plea that resulted from
ineffective assistance of counsel,' based upon such
misinformation and v(2) fail to appropriately recog-
nize the distinction between parole eligibility and
parole atlainmenl. '
[6] We``have previously held that, because of
the extremely speculative nature of parole attain-
,ment, advice from counsel concerning parole does
© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
361 S.W.3d 684
(Cite as: 361 S.W.3d 684)
not render a plea involuntary. Ex parte Evans, 690
S.W.2d at 279. However, Evans stated that, because
“eligibility for parole is a fluctual [sic] societal de-
cision; highly subject to change,
t_p‘li'ca'nt must prove, by a preponderance of the evi‘d'i
\ence_, that; paro'le eligibility was an affirmative part
or essential element of the plea bargain Id.
“ rd. at 278,§nanoop§?r
This is an incorrect statement of the law. While the '
general eligibility rules for parole may change over
time, the§"e_;igibility-rules"remainthe same for a"givfl;
en conviction'. Likewise, an inmate who was eli-
gible for mandatory release at the time of the of- y
~ fense remains eligible for mandatory release on that
conviction, even if that offense subsequently be-
comes eligible for only discretionary mandatory re- .
lease “The statute in effect when the holding of-
fense is committed determines an inmate's eligibil-
ity for release on mandatory*690 supervision or pa-'
role ”;?Ex--“ pat tea Thomps_on,
'(Tex.Crim.App.2005)``f.; Evans held that, because pa-
role attainment was speculative, its “legal 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
not render a plea involuntary. Id. In Moussozadeh
11 we further conflated the concepts of eligibility
and attainment
FN2. .See also ``Ex parte Tijaha_n, 781-
l73-18.'W.~3d» 458,' 459'
n
ts.W.zd 291, 292_93 (_rex.Cnm.App.1989)_
(written`` plea memorandum reflected that
aepplicant would become eligible for parole
consideration after having served one-
fourth of sentence; habeas relief available
when that-was not the law and terms of
plea agreement were impossible to_fulfill).
Although one can determine current parole e_li-. ‘
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 vare considerable concrete distinctions
between parole attainment and parole eligibility
Parole attainment is indeed highly speculative due
to various factors associated with circumstances
surrounding an individual prisoner's parole applica-
tion, such as the prisoner's behavior in prison, the
composition and attitude of the parole board, the
identity and attitude of the governor, the population
of the prison system, and regulations governing
“good time.” S€e,Ex.pa):te Car-illo, 687 S.W.2d 320,
325 ('I``ex.Crim.App.l985) (Miller, .J.§ concurring).
The question of parole eligibility, however, elicits a
straightforward answer because an applicant's pa-
role eligibility is determined by the law in effect on
the date of the offense Ex parte Thompson, 173
S.W.3d at 459. The statutes that govern the punish-
ment of a particular offense control the issue of pa-
role eligibility and are not subject to alteration, ab-
sent legislative amendrnent. Even in the event of a
legislative amendment making a law more strin-
gent, an applicant is subject only to the law govem-
ing parole eligibility :at the time the offense was
committed See Ex parte Alegria, 464 S.W.2d 868,
1 874-75 (Tex.Crim.App.l9711) (retroactive applica- -
tion of parole statute that increased defendant's cu- .
ymulati``on of years required for parole eligibility vi-
'_olated ex post facto clauses of United States and
Texas Constitutions). ' Parole-eligibility require-
ments are direct consequences because they are a
definite and largely automatic result of a guilty
_ plea. See Mitschke v. State, 1_29 S.W.3d _130, 135_
(Tex Crim. App. 2004):' Parole attainment
on the
other hand, is not governed by statute and is gran-
ted at the discretion of the parole bo'ard.
' FN3. A law that changes the punishment
361 S.W.3d 684
(Cite as: 361 S.W.3d 684)
for a crime after the crime has been com~
mitted is an unconstitutional ex post facto
:law only if it inflicts a greater punishment
than did the previous law. Ex parte Tate,
471 ' `` s.w.zd '404, 406
(Tex.Criiii.App.1971) ‘(op. on reh'g); Ex .
parte Scott, 471 S.W.2d 54, 55-6
(Tex Crim. App. 1971). “[A] statute which
mitigates the rigor of the law in force§ at g
the time a crime was committed cannot be
regarded as ex post facto with reference to
that crime.” Rooney v. North Da/cota, 196
U.S. 319, 325, 25 S. Ct. 264, 49 L. Ed. 494
(1905). ' 1
On a claim of involuntary plea, the standard for
the analysis of harm under the Strick/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.”'Ex parte
Harringlon, 310 S.W.3d-at 458. See also Ex parte
Mooa’y, 991 S.W.2d 856, 858 (Tex.Crim.App.l999)
‘ Ex parte Stephenson, 722 S.W.2d 426, 428
1
. (Tex.Crim.App.1987).
[1 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 Str icklana'
[12] To obtain habeas corpus relief on a claim
of involuntary plea, .an tapplicant_ must .meet both
prongs of the Stric/clan¢l standards (1)``counsel‘s per-
formance‘ was deficient; and (2) that a probability
exists, sufficient to undermine our confidence in the
result, that the outcome would have been different _
-but' for counsel['s] deficient performance.” Ex parte
Whire,» 160 s.w.3d 46, 49 (Tex.€riin.App.2004). 111
Page 8
the context of involuntary plea, the “different out-
come” is choosing not to plead and instead choos-
ing to go to trial.
[13][14] Counsel's performance is deficient if it
is shown to have fallen below an objective standard "
of reasonableness ]d. at 51; Strickland \_). Was/ting-
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. Slrick/ana',
supra, at 688, 104: S.Ct. 2052. ln 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 corredt 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 jhis sentence or thirty -years.”
Mozis'stzzacleh II, supra, at 409. Applicant's counsel
could have easily determined the applicable parole-
eligibility requirements simply by reading the text
of the statute. Instead, applicant's counsel failed to
_ inform him of changes in the parole-eligibility stat-
utes that essentially‘doubled the length of time he
must serve before becoming eligible for parole. ``The
fact that the amendments took effect only eleven
days before the offense 1s of no consequence
. _FN4..Parole.eligibility is.not speculative ..
In this cas'e,`` parole eligibility was statutor- '
ily determined and, at the time of the plea,
there was no speculation about those stat-
utory terms. 7 Those terms of parole eligibil-
ity were clear, succinct, and explicit It ap-
pears that all parties involved were un-
© 2012 Thomson Reuters. No Claim to Orig. US Gov.'Works.
361 S.W.3d 684
(Cite as: 361 S.W.3d 684)
aware that parole eligibility had changed
significantly just a few days before the
commission ofthe alleged offense
The performance'of applicant's counsel was de- v
ficient: the consequences of applicant's plea could
have been easily determined by reading the applic-
, able statute Parole-eligibility requirements are pre-
sumpti'vely mandatory, and applicant's trial counsel
provided '»incorrect advice We *692 conclude that
applicant has sufficiently proved that his counsel
was constitutionally deficient.
[16] The portion of applicant's sentence that
must``be served before he becomes eligible for pa-
role was 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 wE``)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. “1_-_1ad ‘Judge' Azios;; Mr. Jones, or Mr.
Qogdelljitold``m'§ that a murder conviction
would require me to serve aggravated time
of one-half of my sentence, up to a maxim-
_um of 30 years, even without a deadly
weapon finding, I would not have accepted
the plea bargain.”
Accordingly, upon reconsideration, we grant
relief. The judgment in this cause is hereby vacated,
and-applicant is remanded to the custody of the
Harris County 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.'Us Gov. works. .A‘-*ii@~"\fl‘
Page 9
KELLER, P.J., concurring.
In overruling Ex parte Evans,F l 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 Claus_e holding ar-
ticulated in Crawfora' 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?
If the Court is going to overrule prior precedent on
habeas review, as it does here, I believe that it
should clearly explain how this fits into our retro-
activity jurisprudence
FNi. j 690 s.w.2d 274
('l``ex.Crim.App.1985).
l .
FNZ. Teagz/e 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.,71354, 158
L'.Ed.2d 177j(2004).
FNS. Lave, 257 s.w.3d a1``237; Ex pane
‘Keirh, 202 s.w.3d 767
(Tex.Crim.App.2006).
There is an easier way to resolve this case
During the plea colloquy, the trial judge was pre-l
pared to make a deadly -'weapon finding, but the
01 s t
£Aa~rg,se~¢`` »'-‘
'~F\i:)il.»;= t
361 s.w.3d 684
(Cite as: 361 s.w.3d 684)
- parties explained that the issue was to be left open
for the judge to determine at punishment, which
would be assessed after applicant testified against a
co-defendant in accordance with the plea agree-
ment. This_exp|anation 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.
. 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 ``fby attaching significance to
the deadly weapon finding.” The habeas judge
recommended that applicant be granted a new trial.
FN6. See Ex parte Moussazadeh, 64
s.W.'sd 404, 408 ('rex.crim.App.zooi).
FN7. see TEx.coDE cRIM. PRoc. art
42.12 § sg; rEx. oov'r CoDE §
508.14_5(0).
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 y
weapon issue "‘to support a finding that it was the
parties' clear intention that parole eligibiliFt_y\J%as 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 case:
FN10. 1a 61413.
FNi 1. See id.
No overt sanctioning of this advice by the judge
or the prosecutor appears in the record and it does,
not appear to have been a part of the plea bargain.
We realize that it is common for the'parties to
play the guessing game of parole eligibility in
plea negotiations Wedecline, however, to elev-
'ate this common``practice to the status of an ele-
ment of the plea bargain without some further in-
dication from the record evidencing that status.
We conclude,-then, that we are not dealing with a
broken or impossible plea bargain situation.
a
`` FN12. 690 s.w.2d 61277.
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.4
7 Further, since our original opinion in this case,
we have decided Hoope)', 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.. §Ho_oper 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 trule under _Teague, .I
would hold that it does-not, because, re-
gardless of the scope oft',l``exas's version of._
Teague’s proscription against announcing
new constitutional rules of criminal pro- '
cedure on habeas, see Danfo/‘tli, supra,
such ``a proscription cannot apply to basic
© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
361 S.W.3d 684
(Cite as: 361 S.W.3d 684)
standards of habeas practice Otherwise a
court could never change its procedures or
standards on habeas.
Finally, 1 would not hold, as the Court appears
to do, that the simple failure to *694 convey ``
information about parole eligibility renders a guilty
plea involuntary We need not address whether
counsel has an obligation to convey information
about the parole consequences of a plea. 'In this
case, it is enough to hold that, if counsel does con-
vey this type of information, he must do so cor-
rectly. Here, the information was incorrect.
FN14. “Both failure to provide correct in-
formation and providing incorrect informa-
tion violate that duty[.]” Court‘s opinion at
691.
Although 1 agree that applicant is entitled to a
new trial, 1 do not join the Court‘s opinion. 1 concur
in the Court‘s judgment '
Tex.Crim._App.,2012.'
Ex Parte Moussazadeh
361 S.W.3d 684
`` END oF DoCUMr-;NT
n Page ll
~::::1‘¢4\
No. ND 5591 (singie Counr) TRN 010 107 3208
THE srATE or TEXAS
v.
JAMES ALLEN PELLOAT,
DEFENDANT `` '
§I_D_: TX
§
§
§
F``lLED FOR RECUIK’D
IN THE l-A JUDICIAL range ALLEN
DISTRICT coURT 01=:.``1’11511' 6 l
NEWTON COUNTY;11
JUDGMENT oF CoNviCTIoN BY COURT;
SENTENCE TO Institutional Division. TDCJ
DATE or JUDGMENT;
JUDGE -PRESIDING;
ATTORNEY FoR THE srATE;
ATTORNEY FoR THE DEFENDANT;
LFE_NSE
STATUTE FOR OFFENSE:
4 DEGREE OF OFFENSE:
APPLICABLE PUNISHMENT RANGE
(including enhancements, if any):
DATE OF OFFENSE:
CHARGING INSTRUMENT:
TERMS OF PLEA AGREEMENT
§IN DETAIle
PLEA TO OFFENSE:
PLEA TO ENHANCEMENT
' PARAGRAPH§ S ):
VERDIC'I`` FOR OFFENSE:
FINDING ON ENHANCEMEN'I``:
AFFIRMATIVE FINDING ON DEADLY
WEAPON:
OTHER AFFIRMATIVE SPECIAL
FINDINGS:
DA'I``E SEN'I``ENCE IMPOSED:
PUNISHMENT AND PLACE OF
CONFINEMENT:
TIME CREDITED TO SENTENCE:
March 24, 2005
Monte D. Lawlis
A. W Davis, Jr.
William S. Morian, Jr.
lmproper Relationship Between an Educator and a
Student
Section 21.12, Penal Code
Second Degree Felony
Second Degree 2-20 yrs in prison/max $10,000 fine
On or about November 7 , 2004.
Indictment
James Allen Pelloat will plead guilty to the followingi%zercases,
all 2" Degree Felonies: No. ND-599l, lmproper Relationship
(21.12 P.C.); N.D-§S§%,-Sen-al-Assault-(%l-¢Ol-l-Fr€?)? ND-5593,
Sexual Assault (21.011 P.C.); ND-5594 lmproper Relationship
(21.12 P.C.); and ND-56l7 Sexual Assault (21.0|1 P.C.),
reduced from Aggravated Sexual Assault (22.021 P.C.). Case
No. ND-SG|S, lmproper Relationship (2|.12 P.C.) will be
dismissed. The defendant will receive a sentence ol’ 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 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
lnstitutional Division-TDCJ, and _1§9 fine
138 days
DSZ: Judgment of Conviction by Coun; Dircct Scntcnce, Cause No. ND 5591; Fage 1 of 3 Pagcs
2115 1001 211 13 2132
FiLED ron REcoao
No. ND 5593 (single counc) TRN 010 107 3208 1105 1110 211 13 21 33
THE sTATE oF TEXAS
v. §
``JAMES ALLEN PELLOAT,
DEFENDANT
SI_D: TX
DATE OF JUDGMENT:
JUDGE PRESIDING:
`` ATTORNEY FOR THE STATE:
A'I'I``ORNEY FOR THE DEFENDANT:
OFFENSE:
STATUTE FOR OFFENSE:
DEGREE OF OFFENSE:
APPLICABLE PUNISHMENT RANGE
(including cnhancements, if any):
DA'I``E OF OFFENSE:
CHARGING lNSTRUMENL
TERMS OF PLEA AGREEME-NT
§IN 1DE'I``AIL):
§ PLEA TO OFFENSE:
PLEA TO ENHANCEMENT
PARAGRAPH(S ):
VERDICT FOR OFFENSE:
FINDING ON ENHANCEMENT:
AFFIRMA'I``IVE FINDING ON DEADLY
WEAPON:
OTHER AFFIRMATIVE SPECIAL
FINDINGS:
'DATE SENTENCE IMPOSED:
PUNISHMENT AND PLACE OF
CONFINI§MENT:
'I'IME CREDITED TO SENTENCE:
COURT COSTS:
IN THE 1-A JUDICIALL!“ w
DISTRICT coURT orr .
NEwToN COUNW;~"PE
JUDGMENT oF CoNvICTIoN BY COURT;
SENTENCE TO Institutional Division, TDCJ
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 510,000 line
November 7, 2004
indictment
- fear
James Allen Pelloat will plead guilty to the following cases,
all 2"‘ Degree Felonies: No. ND-599l, lmproper Relationship
(21.12 P.C.); , ND-5593,
Sexual Assault (21.011 P.C.); ND-5594 improper Relationship
(21.12 P.C.); and ND~5617 Sexual Assault (21.01| P.C.),
reduced from Aggravated Sexual Assault (22.021 P.C.). Case
No. ND-5618, lmproper Re|atlonship (21.12 P.C.) will be
dismissed. Tlie 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-5617 to run
consecutively. The sentences in the remaining cases are
to run concurrently. Defendant will receive credit for time
b 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 M fme
138 days
None
DS2: Judgmcnt ofConviction by Coun; Direct Sentcnce, Cause No. ND 5593; Page l of 3 Pages
1
F'lLED``FOR RECORD
No. ND 5594 (singie coum)§TRN 010 107 3208 ms MAR ZL, p 2: 33
THE srArE or rExAs ' § rN THE 1-A JUDICIAL ~ - ,11_1€11
v. § oisrchr couRT 01=,5;=..~..-?‘651 l 1171
JAMES.ALLr-;N PELLoAr, § NEwroN coUNrY, rs w _'_-g
DEFENDANT -
SI_D: TX
JUDGMENT oF CoNvICTIoN BY CoURT;
SENTENCE To Inscii``utionai Division, TDCJ'
DATE OF JUDGMENT:
JUDGE PRESIDING:
A'I'I``ORNEY FOR THE STATE:
ATTORNEY FOR THE DEFENDANT:
OFFENSE:
STATUTE FOR OFFENSE:
DEGR.EE OF OFFENSE:
APPLICABLE PUNISHMEN'I`` RANGE
(including enhancements, if any):
. DATE OF OFFENSE:
CHARGING INSTRUMENT:
TERMS OF PLEA AGREEMENT
§1_1\_1 DETAIL):
PLEA To 0FFENSE:
_PLEA To ENHANCEMENT
-.. ., PARAGRAPH(s):
vERDICT FOR oFFENSE:
FINDING oN ENHANCEMENT:
AFFIRMAHVE FINDING oN DEADLY
' WEAPoN:
OTHER AFFIRMAT!vE sPECiAL
Fmomos:
DATE sENTENCE iMPOSED;
PUNISHMENT AND PLACE oF
MM
'I``IME CREDITED TO SENTENCE:
March 24, 2005
Monte D. Lawlis
A'. W Davis, Jr.
William'S. Morian, Jr.
lmproper Relationship Between an Educator and
Student
Section 21.12, Penal Code
Second Degree Felony
Second Degree 2-20 yrs in prison/max 510,000 fine
On or about November 7, 2004.
Indictment
-f"uir
James Allen Pelloat will plead guilty to the followinglivocases,
all 2"d Degree Felonies: No. ND-599l, improper Relationship
(21.12 P.C.); mud-Assault (21.01| P.C.); ND-5593,
Sexual.Assault (21.011 P.C.); ND~5594 lmproper Relationship
'(2|.12 P.C.); and ND-56l7 Sexual Assault (21.011 P.C.),
reduced from Aggravated Sexual Assault (22.021 P.C.). Case
No. ND-5618, improper Re|atlonshlp (21.|2 P.C.) will be
dismissed. The defendant will receive a sentence of twenty
(20) years on each of the “eases, with the sentence in case
No. ND-5992 and the sentence in case No. ND-56l7 to run
consecutively. The sentences in the remaining cases are
to run 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 Applicab|e
March 24, 2005
Twenty (2_0) years in the
Institutional Division-TDCJ, and M fine
138 days
' DSZ: Judgmcnl of Conviction by Coun; Dircet Scntenc¢, Cause No. ND 5594; Page 1 of 3 Pages
HQR~ZB-@E» 11:58 QM DISTRICT C|_ERK - 499 379 9@8?. ‘_P-@Z
F'|LED FUR RECOR\'Jv
NO.ND5617(Singlecoum)TRN0101117 3208 ‘ mmmu p 2 32
1115 sTATE or TExAs § IN THE 1 A JUDICIAL , ,-¢, § ,U_ EN .
v. § DISTRICT COURT 011MDOS"R CTH$LYF"K 13
JAMES ALLEN PELLOAT, § NEWTON coUNTYBq:ExA _ 4 1_,
DEFENDANT
s__ir) Tx
JUDGMENT OF CONVICTION BY COURT;
SENTENCE TO Institutional Division. TDCJ
ATE DOF J D ' March 24, 2005 _
‘ PRESIDING: Monte D. Lawlis
ATTORNEY FOR THE STATE: A. W Davis, Jr. ~
ATTORNEY FOR THE DEFENDANT William S. Morian, Jr’.
' OFFENSE: Sexual Assault ’
STATUTE FOR OFFENSE: Section 22.011, Penal Code'
QE§§REE Q,E QEFENSE: Second Degree Felony
PPLICAB E PUN NT RANGE
UMQm£inhangemem§_if_gM Second Degree 2-20 yrs in prison/max $10, 000 fine
DATE OF OFFENSE: On or about May 01, 2002.
cHAggING rNSTRUMENT. Indictment
TERM§.QF PLEA AGREEMENT f '
`` IN DET `` James Allen Pelloat will plead guilty to the following-women
all 2"d Degree Felonles: N_o. ND-5991, lmproper Relatlonship'
(21. 12 P. C); ,ND``- 5593 1
Sexual Assault (21. 011 P. C. ); ND- 5594 lmproper Relatlonship_ _
(21. 12 PC); and ND-5617 Sexual Assault (21. 011 P. C).
reduced from Aggravated Sexual Assault (22. 021 P. C..) Cm.
No ND-5618, improper Relatlonshlp (21.12 P.C) will be
dismissed The defendant w r1 receive a sentence of twenty
(20) years on each of them cases, with the sentence in case ' "
No ND-5992 and the Sentel’lce in c eNo. ND- 5617 to run
l consecutively. The sentences in the remaining cases are
to run concurrently Defendant will receive credit for time '
‘ served ln the Newton County Jall 111 the amount of 138 days.
_ _ PLEA TQ_ QEEENSE. Guilty
ELEA TQ ENHANCEMENT _
PARAGRAPH( Sl: Not Applicable
VEBQICT FQR QFFENSE: Guilty
FINDIN ON ENH Not Applicable
AFFIRMATIYE FIND DIEQ OI§! Q_I;.``,ADLY
WEAPON: Not Applicable '
OTHER AFFIRMATIVE SPECIAL -»
FINDINGS: Not Applicable
DATE SENTENCE IMPQ§§D; March 24, 2005
PU'NTSHMENT AND PLACE OF
ONFINEMENT: Twenty (20) years in the
Institutlonal Division-TDCJ, and N___o fine
TlM_E_) CREDITED TO §ENI El\_JCE: 138 days
COURT COSTS: None 1
DSZ' Judgl'hcnt ofConviction by Coun; Direci Sentence, Cause No. ND 5617; Page l oi``3 Pages _