              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
