            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                               NOS. AP-76,439 and AP-74,185



                       Ex parte MAX MOUSSAZADEH, Applicant



               ON APPLICATION FOR A WRIT OF HABEAS CORPUS
                          FROM HARRIS COUNTY


              K ELLER, P.J., filed a concurring opinion.


       In overruling Ex parte Evans,1 the Court creates a new rule of constitutional law. Under

Teague, with some exceptions, federal courts may not announce or apply new rules of constitutional

law on collateral review.2 The states are not bound by the Teague rule and may afford retroactive

effect on collateral review in situations not allowed under Teague.3 Nevertheless, with respect to




       1
           690 S.W.2d 274 (Tex. Crim. App. 1985).
       2
           Teague v. Lane, 489 U.S. 288 (1989).
       3
         Danforth v. Minnesota, 552 U.S. 264 (2008); Ex parte Lave, 257 S.W.3d 235, 237 & n. 15
(Tex. Crim. App. 2008).
                                                          MOUSSAZADEH CONCURRENCE - 2

the new Confrontation Clause holding articulated in Crawford v. Washington,4 we applied the rule

in Teague to bar retroactive application on habeas corpus.5 The Court does not conduct a

retroactivity analysis in this case, and I do not know its reason for making the new rule retroactive.

Has the Court abandoned Teague altogether in favor of its own retroactivity analysis? Does it intend

to adhere to Teague, but with state-created exceptions? Do any exceptions—articulated in Teague

or state-created—apply in the present case? If the Court is going to overrule prior precedent on

habeas review, as it does here, I believe that it should clearly explain how this fits into our

retroactivity jurisprudence.

       There is an easier way to resolve this case. During the plea colloquy, the trial judge was

prepared to make a deadly weapon finding, but the parties explained that the issue was to be left

open for the judge to determine at punishment, which would be assessed after applicant testified

against a co-defendant in accordance with the plea agreement.6 This explanation was consistent with

the parties agreeing that applicant would have his chance, after cooperating with the State, to

persuade the trial judge to make his time “non-aggravated,” i.e. subject to more generous parole-

eligibility rules available to non-3g offenses.7 But less than two weeks before the offense had been

committed, the law had changed to treat murder as an “aggravated” offense for parole-eligibility




       4
           541 U.S. 36 (2004).
       5
           Lave, 257 S.W.3d at 237; Ex parte Keith, 202 S.W.3d 767 (Tex. Crim. App. 2006).
       6
           See Ex parte Moussazadeh, 64 S.W.3d 404, 408 (Tex. Crim. App. 2001).
       7
           See TEX . CODE CRIM . PROC. art. 42.12 § 3g; TEX . GOV ’T CODE § 508.145(d).
                                                           MOUSSAZADEH CONCURRENCE - 3

purposes, regardless of whether there was a deadly-weapon finding.8 In its findings of fact on

applicant’s original habeas application, the habeas judge found that the prosecutor and the trial judge

ratified defense counsel’s misinformation about parole eligibility “by attaching significance to the

deadly weapon finding.”9 The habeas judge recommended that applicant be granted a new trial.

       In our original opinion on applicant’s habeas application, we declined to follow the habeas

judge’s finding, and her ultimate recommendation, because it required “too many inferences stacked

upon each other” for the deferral of the deadly weapon issue “to support a finding that it was the

parties’ clear intention that parole eligibility was an essential element of the plea bargain.”10 We

cited no authority for this “inference-stacking” holding,11 and thus it does not appear to be based

upon an established rule that we would have to change. Moreover, with regard to the advice given

in Evans, we said in that case:

       No overt sanctioning of this advice by the judge or the prosecutor appears in the
       record and it does not appear to have been a part of the plea bargain. We realize that
       it is common for the parties to play the guessing game of parole eligibility in plea
       negotiations. We decline, however, to elevate this common practice to the status of
       an element of the plea bargain without some further indication from the record
       evidencing that status. We conclude, then, that we are not dealing with a broken or
       impossible plea bargain situation.12

Unlike in Evans, there was overt sanctioning of the attorney’s advice by the judge and the prosecutor,



       8
            Moussazadeh, 64 S.W.3d at 409.
       9
         The habeas judge also found that appellant would not have pleaded guilty absent the
misinformation.
       10
            Id. at 413.
       11
            See id.
       12
            690 S.W.2d at 277.
                                                          MOUSSAZADEH CONCURRENCE - 4

or at least the habeas court could so rationally conclude, as it has done. Thus, we simply

misanalyzed the issue under Evans, and it is appropriate for us to reconsider the issue now.

       Further, since our original opinion in this case, we have decided Hooper, where we indicated

that inference stacking was not necessarily irrational and that we should focus, not on whether

inferences are being stacked, but simply on the rationality of the inferences in addressing the

sufficiency of the evidence to support a conviction.13

       Finally, I would not hold, as the Court appears to do,14 that the simple failure to convey

information about parole eligibility renders a guilty plea involuntary. We need not address whether

counsel has an obligation to convey information about the parole consequences of a plea. In this

case, it is enough to hold that, if counsel does convey this type of information, he must do so

correctly. Here, the information was incorrect.

       Although I agree that applicant is entitled to a new trial, I do not join the Court’s opinion.

I concur in the Court’s judgment.

Filed: February 15, 2012
Publish




       13
          Hooper v. State, 214 S.W.3d 9, 16-17 (Tex. Crim. App. 2007). If it were necessary to
decide whether Hooper’s pronouncement regarding inference stacking constituted a new rule under
Teague, I would hold that it does not, because, regardless of the scope of Texas’s version of
Teague’s proscription against announcing new constitutional rules of criminal procedure on habeas,
see Danforth, supra, such a proscription cannot apply to basic standards of habeas practice.
Otherwise a court could never change its procedures or standards on habeas.
       14
           “Both failure to provide correct information and providing incorrect information violate
that duty[.]” Court’s opinion at 13.
