Miller, Terry Louis ( 2015 )

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WPWNT RE;BUUAL“_ y -__~
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APR 0 6 2015
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Gf the subsequent chapter provodes v
If a subsequent appliaction for a writ of habease corpus is filed after a
final dispositionof a initial appli&@iion challenging the same conviction
vaycourt may not consider the merits or grant relief based upon the``
subsequent appliaction unk§s appli§ént contains &pecifics facts establishing
one of the two acceptions.
Por the purpose of subsection (C)
A factual basis is unavailable on or before a date described
bv (a\_(l) if the factual basis was not ascertainable through
the excercise of reasonble diligence on or before that date.
The trial court does not allege in the present appliee&hwwn-
that the prior conviction in indictment 30/600 is the prior
conviction used for enhancement. ' n
Por this reason the applicant request that the present application
be reviewed under section (Cl of the subsequent chapter/
the applieent has not found anv prior felony that could be used
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to increase the range of punishment.
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This is was previuoslv letigated in the first application.
A,PPLICAN']" RE``BITTTAL
The 188/th district conduct is confgjhd by law, When a trial
court conduct vio&étes one of those laws the court is said tD
have no authoritv to act/Ex,parte Sanchez,918,Sw,26,526,-27;
The court of appeals reversed in Qanchez as the court should
here holding that a iudicial defect in the trial proceedings``
would render a iudqement void. ``
The court noted\that the prior conviction alleged in indictment
-30,600 can not be used for enhancement purpose~fortier V State.
lOS,SW,3d,697. Tx Crm App, 2003.
The judicial performance performed by one with no authority to
act may be raised at any time. mente" Williams.€§v'$w,Bd/€SS,
Applicant contends that the trial court entered a sentence of
fourtv vear's in the caseat bar. ’ l
In a previous applia§tion the applicant made several inquiries
into the existance of the specific conviction that was use tov
increase the punishment range. the 188.th District has vet to
provide that information. see memorandum pa 4-5.
The applicant contend@ that the trial court vioalted his due’
process.
The Court of appeals is-asked to review this application
in an effort to discover the prior that gives the court its-
authoritv.
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coURTs'RRsPOSNSE
.The issue regarding the affirmative finding was previuoslv
letigated on direct appeal.
APPLIcANTS RESPONSE
The court does not assert that the ampi¢mnncv@kb not raise the
issue in an application for ll:07/ or in a habease corpus.
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Applicant contends he is not prohibited from raising the issue
again in his habeas for the first time.
5
IV
COURTS RESPONSE
While the specific complaint may not have been raised at that
time / there is no new facts that could not have been raised
in the first appliaction.
APPLICPNTS RESPONSE
Applicant was unaware of the prior conviction do to the fact
it was not alleged in indictment 30,298. It was not until
communicating with the trial courtei§ self that@Pphé§Q§¥V?§®rné&
that the prior was some where among his forms.
Once-the appicant did discover¢the prior conviction he still
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was n-ot aware that the conviction‘was a state jail felony.
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lt was not until the applieent did additioanl res