Evans, Kenith Robert ( 2015 )

WR-82,154-01
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 5/26/2015 2:57:04 PM
Accepted 5/27/2015 9:02:29 AM
WR-82,154-01 ABEL ACOSTA
CLERK
RECEIVED
IN THE COURT OF CRIMINAL APPEALS COURT OF CRIMINAL APPEALS
5/27/2015
OF THE STATE OF TEXAS ABEL ACOSTA, CLERK
Ex parte KENITH ROBERT EVANS
Petitioner’s Motion for Rehearing
of Application of Writ of Habeas Corpus
JASON D. CASSEL
Bar Number: 24006970
jdc@emafirm.com
ALBRITTON LAW FIRM
P.O. Box 2649
Longview, Texas 75606
Phone Number: (903) 758-5200
Facsimile Number: (903) 758-7397
WR-82,154-01
IN THE COURT OF CRIMINAL APPEALS
OF THE STATE OF TEXAS
Ex parte KENITH ROBERT EVANS
APPLICANT’S MOTION FOR REHEARING
TO THE HONORABLE COURT OF CRIMINAL APPEALS:
Comes now the Applicant, by and through his Attorney, Jason D. Cassel, and
respectfully submits to the Court his Motion for Rehearing in the above entitled and
numbered cause.
GROUND FOR REHEARING
The Court dismissed the Application for Writ of Habeas Corpus stating the
sentence has been discharged, citing Ex parte Harrington, 310 S.W.3d 452 (Tex.
Crim. App. 2010). However, Applicant is still confined for purposes of Article 11.07
as this conviction is being used as an enhancement of a case now pending.
Argument and Authorities
This Court dismissed Applicant’s Writ of Habeas Corpus stating the sentence
had been discharged. However, Applicant is still under disability for this
conviction.
While it is true that Mr. Evans’ 4 year sentence in this cause has been
discharged, he continues to suffer collateral consequences from the conviction.
First, in WR-82,154-02, trial counsel filed an affidavit, which is also part of the
record in this cause, stating that he’s sure that if he recommended Mr. Evans accept
a 20 year sentence, “he must have been looking at a minimum sentence of 25 years
had he gone to trial.” CR-51, Affidavit of Steve Kattner. Additionally, Mr. Evans is
currently under indictment in Gregg County Cause 42,357-B where the conviction
at issue here is being used as a felony enhancement, making the punishment range
25-99 years or Life. See CR-181, Trial Court’s Findings of Fact and Conclusions of
Law.
In Harrington, the applicant was convicted of felony DWI and had discharged
the sentence but because he faced “collateral consequences,” such as “enhanced
penalties should he be charged and convicted of a subsequent felony offense,” he
was still confined for purposes of Article 11.07 review. This is precisely the case
here, but rather than hypothetical harm that “should he be charged with a
subsequent felony,” Mr. Evans is charged with a subsequent felony where this
conviction is alleged in the indictment of Cause 42,357-B to enhance punishment.
CR-181. Furthermore, Mr. Evans is serving a 20 year sentence from 2001 where
trial counsel states “he must have” believed that Mr. Evans was facing punishment
of 25-99 or life if he had gone to trial. This position relies on the validity of this
conviction. Thus, the use of the this conviction caused trial counsel to recommend
Mr. Evans accept a maximum 20 year sentence and is being used again, this time
as an actual enhancement in Gregg County Cause 42,357-B.
Accordingly, the Mr. Evans is confined and entitled to review under Article
11.07. The Court should grant Mr. Evan’s motion for rehearing and address the
issues raised in the application for writ of habeas corpus.
PRAYER
WHEREFORE, Applicant prays that the motion for rehearing be granted.
RESPECTFULLY SUBMITTED,
__________________________
JASON D. CASSEL
Bar Number: 24006970
jdc@emafirm.com
ALBRITTON LAW FIRM
P.O. Box 2649
Longview, Texas 75606
Phone Number: (903) 758-5200
Facsimile Number: (903) 758-7397
CERTIFICATE OF COMPLIANCE
The undersigned certifies that according to the Microsoft Word word count
tool this document contains 516 words.
___________________________
Jason D. Cassel
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above and foregoing
document has been hand delivered to the Gregg County District Attorney’s
Office, on this the __26th___ day of __May____________, 2015.
___________________________
Jason D. Cassel