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COURTS RESPONSE

The appliacnt has peviouslv letioated the isuue before.

APPRICANTS RFSPONSE

The present application makes the assertion that the trial court
is prohibited fpom\the use of a state jail felony-for enhancement

purpose. see memorandum, pq £;

Appliaants previous applicationEHaD not make this assertion.'Th@
previous appliaction only asserts that the paragrsph was not alleged
in indictment t 30,298. See memorandum pg,Af

It was not until the trial courts response in the previous applic-

ation that the applicant became aware that the prior conviction

need not be alleqed in the indictment, the 188,th district cited

\

Brooks to support this position. see prior application.
7~\'pplicant contends that the onlv conviction found in any of his forms
is the prior conviction in indictment t 30,600,

se Exhibit:€!also pg 19 of memorandum.

This instument asserts;

qaving heen convicted of the felony offense of PUPGEARY OF A
BUILDING on the 7,th day of Novemeherin cause No 231029/3

in the District Court of Texas, in case on the docket of said
court and entitled the State of Texas V Terrv Louis Miller
intentionallv or knowinqlv possesessed a fire arm before the
fifth annaversarv of the defendants confinement from releif
Of said confinement followinq said conviction.

This instrument makes no mention that the hurolarv would he used for enhancement
purpose.

If the state intends to effectively increase §h@ §§§u§l amount of

prison time the accuse must serve/ it must provide adequate advance

notice so that the accuse may prepair a proper defense to the

states allegations} otherwise the appligem¢ due-process becomes

Lviolated. l

luken v Stater 780.SW,2d,2A6.

In luken the court of appeals held that an enhance sentence must
be supported by a written allegation of a prior conviction.I,d at37
$&@ accused is entitled to a proper notice of a prior convi@tion
that might be used for enhancment purpose. 7

The prior convitcion in indictment t 30 600' only informs that the
state entends to use this prior that the state entends to show
that the applicant possessed a fire arm before the fifth annavers-
sarv of his_release. the notice.does not infrom the applicant

that the prior would be used for enhancemnt purpose. see exhibit
c. otherwise the applicant would have prepaired a defense to

the prior alleged here.

sec 4 (a)>

Gf the subsequent chapter provodes v

If a subsequent appliaction for a writ of habease corpus is filed after a
final dispositionof a initial appli&@iion challenging the same conviction
vaycourt may not consider the merits or grant relief based upon the`
subsequent appliaction unk§s appli§ént contains &pecifics facts establishing

one of the two acceptions.

Por the purpose of subsection (C)
A factual basis is unavailable on or before a date described
bv (a\_(l) if the factual basis was not ascertainable through
the excercise of reasonble diligence on or before that date.
The trial court does not allege in the present appliee&hwwn-
that the prior conviction in indictment 30/600 is the prior
conviction used for enhancement. ' n
Por this reason the applicant request that the present application
be reviewed under section (Cl of the subsequent chapter/
the applieent has not found anv prior felony that could be used

` ii

to increase the range of punishment.

., `[ `[
ginnst RF:sPoNsE _

This is was previuoslv letigated in the first application.

A,PPLICAN']" RE`BITTTAL

 

The 188/th district conduct is confgjhd by law, When a trial
court conduct vio&étes one of those laws the court is said tD

have no authoritv to act/Ex,parte Sanchez,918,Sw,26,526,-27;

The court of appeals reversed in Qanchez as the court should
here holding that a iudicial defect in the trial proceedings`
would render a iudqement void. `

The court noted\that the prior conviction alleged in indictment
-30,600 can not be used for enhancement purpose~fortier V State.
lOS,SW,3d,697. Tx Crm App, 2003.

The judicial performance performed by one with no authority to
act may be raised at any time. mente" Williams.€§v'$w,Bd/€SS,
Applicant contends that the trial court entered a sentence of
fourtv vear's in the caseat bar. ’ l

In a previous applia§tion the applicant made several inquiries
into the existance of the specific conviction that was use tov
increase the punishment range. the 188.th District has vet to

provide that information. see memorandum pa 4-5.

The applicant contend@ that the trial court vioalted his due’

process.
The Court of appeals is-asked to review this application

in an effort to discover the prior that gives the court its-

authoritv.

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coURTs'RRsPOSNSE

.The issue regarding the affirmative finding was previuoslv
letigated on direct appeal.

APPLIcANTS RESPONSE

The court does not assert that the ampi¢mnncv@kb not raise the
issue in an application for ll:07/ or in a habease corpus.
.‘, ,_ ‘

Applicant contends he is not prohibited from raising the issue

again in his habeas for the first time.

5

IV
COURTS RESPONSE

While the specific complaint may not have been raised at that

time / there is no new facts that could not have been raised

in the first appliaction.
APPLICPNTS RESPONSE

Applicant was unaware of the prior conviction do to the fact

it was not alleged in indictment 30,298. It was not until
communicating with the trial courtei§ self that@Pphé§Q§¥V?§®rné&
that the prior was some where among his forms.

Once-the appicant did discover¢the prior conviction he still

u||‘\

was n-ot aware that the conviction‘was a state jail felony.
'-"" in `~ll~t\`.rL)

lt was not until the applieent did additioanl res<earch regarding

the prior conviction that the applicant became aware that the
. , ,

conviction was a state jail felony. 4 1 W 'Mf ' ‘“‘ 15
One who has been»accused of a crime may some times take months

or even Vears before heyshe discover the iniurv suffered whereas

the_attorney may discover the same information in a matter of

hours.

applicant argues that he was misled by both the trialccourt and
his counsel.as to the enhancement matter.
Indictment 30,600 is the new fact that applicant has presented in
the current application.
the court of appeals has recoqnozed in Bradv voluntariness

which explain that a guilty plea must be entered bv one aware of
the direct consequences to be voluntarv.’

vFail'ure.of the counsel to inform, invetigate,and obiectrviola;es

'theaaccuse due process, of the sixthr’and`fifth_amendment.

Several courts have recognized where ineffective assistance of
counsel occurs before a trial the harm consistent to the defense.
Exp'arte r.emke ,‘ `1 3_,ew,aa ,7<)1_ .

the court of appeals noted in Lemke, Thatxcounshl failure~to'comm-`
’unicate creates a probability that sufficient to undermine the
confidence and integrity of the out come of the trial proceedinqs.
I.d at

The courts have tailored a remedy to inquire into_ the iniury
'suffered when counsel fail's to convey information.

Sec (Cl provides review Of.those issue's. Whereas counsel may

explain.

V
COURTS RESPONSE

The issue of the allegation inadequacy of the indictment was

previuosly raised, in a first application.

_APPLIACNTS RESPONSE

 

The l88,th District does not assert that the prior conviction in
indictment 30,600 is the prior that the court used to enhance the

punishment-

The appliacnt contend that the conviction alleged here deals with

 

a question concerning the courts authority to act.

There is no other prior alleged in any of the applicantskfprms.
For these reasons the court of appeals is asked to develope the
records even futher, whereas the l88,th“District court may reveal
the prior conviction used to increase the applicants punishment

ranqe.

Sec 4. plainly request that a final disposition on an initial writ.

the court noted that it must entail a disposition relating to the

merits of all claims raised. Dispositions relating to the merits

are labled denial, while the disposition related not related to the
merits are labled dismissed. Reqardless of the lable the court noted
that it should look at the substance of the disposition to determine
'whether the writ is barrés by sec d.Ex,parte,Torres 943,$W,2d,469
Applicant respectfully ask that the appeals court review these meritable
'regardless as to whether the applicanht has satisfied the subsequent

sec €.

