Dean, Alesha

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-79,040-02
EX PARTE ALESHA DEAN, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. W09-40844-J(B) IN CRIMINAL DISTRICT COURT NO. 3
FROM DALLAS COUNTY
YEARY, J., filed a concurring opinion.
CONCURRING OPINION
For the reasons expressed in Judge Keasler’s dissenting opinion, I do not think the
Court can legitimately resolve this writ application in Applicant’s favor based upon the state
of the law prior to Moussazadeh III.1 In fact, the state of the law prior to Moussazadeh III
was the standard we set out in Moussazadeh II,2 back in 2001. Under that standard, Applicant
would not be entitled to relief. The fact of the matter is that we cannot avoid resolving the
question we originally filed and set this cause to address: Should the holding in Moussazadeh
1
Ex parte Moussazadeh, 361 S.W.3d 684 (Tex. Crim. App. 2012).
2
Ex parte Moussazadeh, 64 S.W.3d 404 (Tex. Crim. App. 2001).
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III—our much belated reconsideration, on our own motion, of Moussazadeh II—be applied
retroactively? Because I would answer that question in favor of applying Moussazadeh III
retroactively, I concur in the result.
When it comes to the retroactivity of new rules of constitutional law, “[t]his Court
follows Teague [v. Lane, 489 U.S. 288 (1989),] as a general matter of state habeas
practice[.]” Ex parte De Los Reyes, 392 S.W.3d 675, 679 (Tex. Crim. App. 2013) (citing Ex
parte Lave, 257 S.W.3d 235 (Tex. Crim. App. 2008)). We are not constitutionally bound to
follow the Teague formulation for determining retroactivity, however, and we have
acknowledged that we may “deviate” from our general practice under appropriate
circumstances. Id.; Ex parte Maxwell, 424 S.W.3d 66, 70-71 (Tex. Crim. App. 2014).3 If ever
there were a scenario that would “present us a reason to deviate[,]” De Los Reyes, 392
S.W.3d at 679, this is it.
In Ex parte Young, 644 S.W.2d 3, 4-5 (Tex. Crim. App. 1983), the Court proclaimed:
Although parole eligibility is a collateral consequence of the entry of a
plea of guilty and a defendant is not entitled to be informed of parole eligibility
by the trial court, see Rose v. State, 465 S.W.2d 147 (Tex. Cr[im]. App. 1971),
if the defendant is grossly misinformed about his parole eligibility date by his
attorney, and the defendant relies upon that misinformation to the extent that
it induces him to plead guilty or nolo contendere, his plea may be rendered
involuntary.
We then concluded:
3
See Danforth v. Minnesota, 552 U.S. 264, 266 (2008) (“The question in this case is whether
Teague constrains the authority of state courts to give broader effect to new rules of criminal
procedure than is required by that opinion. We have never suggested that it does, and now hold that
it does not.”).
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Petitioner has proved that which he has alleged, that is, that his trial
counsel gave him incorrect and misleading advice regarding his parole
eligibility date, thus rendering his plea involuntary. We find that the trial
court’s conclusion that petitioner was induced to enter pleas of guilty based on
this gross misinformation is correct.
Id. at 5.
During the period between Young and Moussazadeh III, this Court made various
pronouncements about what else a post-conviction habeas applicant must prove besides these
bare facts in order to establish an unconstitutionally involuntary plea. First, we said such an
applicant must prove that the misinformation was “an affirmative part of” a plea agreement.
Ex parte Evans, 690 S.W.2d 274, 279 (Tex. Crim. App. 1985). What’s more, we
subsequently insisted, that proof must be formal in nature and cannot be inferential; it must
be “founded upon the express terms of the written plea agreement itself, the formal record
at the plea hearing, or the written or testimonial evidence submitted by both the prosecution
and applicant in a habeas proceeding.” Moussazadeh II, 64 S.W.3d at 412.
But in Moussazadeh III, the Court came full circle (with a nod to Hill v. Lockhart,
474 U.S. 52 (1985)). Once again the Court held that an applicant may be entitled to relief
upon no more than a showing that his attorney gave him misinformation regarding parole
eligibility and he would not have pled guilty absent such misinformation, but would have
insisted on going to trial. 361 S.W.3d at 690-92. Moreover, we expressly held 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-performance inquiry under
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Strickland [v. Washington, 466 U.S. 668 (1984)—as applied to guilty plea proceedings in
Lockhart].” Id. at 691.
Thus, Moussazadeh III does not represent a new rule for purposes of a retroactivity
analysis so much as it represents a return to the old—an acknowledgment that what we
originally declared the law to be, almost thirty-four years ago in Young, was accurate and
should have been followed ever since. That this Court strayed from its holding in Young for
so long is no reason that applicants who suffered manifest ineffective assistance of counsel
during our own period of waywardness ought to be made to suffer. I would hold that
Applicant is entitled to relief under the rule first laid out in Young and resurrected in
Moussazadeh III.
For this reason, I respectfully concur.
FILED: November 23, 2016
DO NOT PUBLISH