Colquitt, Delbert Wayne ( 2012 )

  IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

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NO. WR-25,237-04

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EX PARTE DELBERT WAYNE COLQUITT, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. CR-28968-A IN THE 217^TH JUDICIAL DISTRICT COURT

FROM ANGELINA COUNTY

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   Per curiam.

O R D E R  

   Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the clerk of the trial court transmitted to this Court this application for writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant pleaded guilty to possession of a controlled substance in a drug free zone, and was sentenced to eight years' imprisonment.

On February 9, 2011, this Court remanded this application to the trial court for findings of fact and conclusion of law addressing Applicant's claims of ineffective assistance of trial counsel. Applicant alleged, inter alia, that counsel did not advise him of the effect of the drug free zone allegation on his parole eligibility. On February 2, 2012, the trial court made findings of fact and conclusions of law that were based on the plea papers, the reporter's record of the plea hearing, and an affidavit filed by Applicant's trial counsel. The trial court concluded that the performance of Applicant's trial attorney was not deficient, and recommended that relief be denied.

In his affidavit, trial counsel states that Applicant was advised that the drug free zone allegation would have an effect on his parole eligibility. Counsel states that Applicant was advised that he would have to serve one half of his sentence before he was eligible for parole. In fact, the drug free zone allegation had the effect of requiring Applicant to serve five years without consideration of good time credit, or his entire sentence, whichever is less. Tex. Gov't Code § 508.145(e) (2006). Counsel therefore gave Applicant incorrect advice as to the effect of the drug free zone allegation on his parole eligibility. In light of this Court's recent decision in Ex parte Moussazadeh, Nos. AP-76,439 and AP-74,185 (Tex. Crim. App. February 15, 2012), this Court finds that counsel's performance was deficient in this respect. However, unlike the applicant in Moussazadeh, Applicant in this case has not established that he was prejudiced by counsel's deficiency. Applicant will be eligible for parole in five years, as opposed to the four years he would have had to serve had counsel's advice been true. In exchange for his plea of guilty, the State waived five enhancement paragraphs, which would have exposed Applicant to punishment as a habitual felony offender with a minimum punishment of 25 years' imprisonment. Applicant has not demonstrated that he would not have pleaded guilty but for counsel's erroneous advice as to parole eligibility.

Therefore, based on the trial court's findings of fact and conclusions of law as well as this

Court's independent review of the entire record, we deny relief.

Filed: March 21, 2012

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