             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
                            DALLAS COUNTY



       K EASLER, J., filed a dissenting opinion, in which H ERVEY and N EWELL, JJ.,
joined.

                                 DISSENTING OPINION

       The Court sidesteps the “difficult”1 issue that we filed and set Alesha Dean’s

application to resolve: whether this Court’s opinion in Ex parte Moussazadeh (Moussazadeh

III)2 applies retroactively. Although the habeas judge relied upon this case in recommending

we grant Dean relief, the Court grants relief on what it identifies as the law as it existed at



       1
           Ante, at 14.
       2
           361 S.W.3d 684 (Tex. Crim. App. 2012) (hereinafter Moussazadeh III).
                                                                        DEAN DISSENT—2

the time of her plea. But in defining that law, the Court ignores a significant opinion that

altered the opinions it relies upon. In its formulation of past law predating Moussazadeh III,

the Court leaves out Moussazadeh II, an opinion that undermines the majority’s reasoning

and defeats Dean’s claim.

           The Evolution of Incorrect Parole Advice on a Plea’s Voluntariness

       In Ex parte Young,3 Young pleaded guilty to two counts of aggravated robbery

pursuant to a plea agreement and was sentenced to fifteen years’ imprisonment for each

count. In his application for a writ of habeas corpus, Young claimed that counsel advised

him that he would be parole eligible after serving only three years if the judgment did not

have a deadly weapon finding, when, in fact, he would be eligible after serving five years.

We agreed with the habeas court’s findings of fact and concluded that counsel’s advice

rendered Young’s plea involuntary.4 The Young Court stated, “By implication, from the

record, the trial court also labored under this misunderstanding of the law in that he followed

the ‘plea bargain’ to not enter an affirmative finding that a deadly weapon was used.” 5 The

Court then held that a defendant’s plea may be rendered involuntary if his attorney grossly

misinforms him about his parole eligibility date and that misinformation induces him to plead




       3
           644 S.W.2d 3 (Tex. Crim. App. 1983).
       4
           Id. at 4–5.
       5
           Id. at 4 (emphasis in original).
                                                                      DEAN DISSENT—3

guilty or nolo contendere.6

       Two years later, in Ex parte Evans7 we reconsidered Young. Evans pleaded guilty to

aggravated robbery and was sentenced to ten years’ imprisonment. He filed an application

for a writ of habeas corpus claiming that he relied on counsel’s incorrect advice that he

would be parole eligible in eighteen to twenty months. The habeas court concluded that

counsel’s advice was deficient and rendered Evans’s plea involuntary. We disagreed.8 We

recognized that “some expectations of a defendant about the circumstances or consequences

of his plea, though perhaps important to him, are just too speculative to warrant being given

effect upon his guilty plea.”9 And given the speculative nature of parole attainment, we

declined to hold that Evans’s plea was involuntary.10 The “speculative nature of parole

attainment,” we wrote, “is such as to discount its legal importance on the subject of

voluntariness of a guilty plea. This legal importance is discounted to the extent that

erroneous advice of counsel on the subject of parole eligibility will not render the plea

involuntary.” 11




       6
            Id. at 5.
       7
            690 S.W.2d 274 (Tex. Crim. App. 1985)
       8
            Id. at 276.
       9
            Id. at 278.
       10
            Id. at 278–79.
       11
            Id. at 279 (emphasis in original).
                                                                        DEAN DISSENT—4

       To be considered an involuntary plea in this context, Evans required parole eligibility

to be an affirmative part of the plea agreement that an applicant relied upon as “an essential

part of the quid pro quo for pleading guilty.”12 Evans also clarified Young’s holding.

Because the trial judge also misunderstood the law on parole eligibility in Young, this

understanding of parole eligibility “was elevated to the status of an element of the plea

bargain.”13       This was, we pointed out, consistent with what we said in Ex parte Carillo:

“Thus in Young, the agreement was made a part of the plea bargain and sanctioned by the

trial court.”14 And because this element of the plea bargain was not “kept,” the Young Court

held that the plea was involuntary.15 We also conceded in Evans that “other wording” in

Young perhaps indicated that its holding was also based on the premise that counsel’s

deficient advice on parole eligibility would make a defendant’s guilty plea involuntary per

se.16 We disavowed this premise and overruled Young to the extent it conflicted with Evans.

Evans qualified Young’s language that suggested a defendant’s guilty plea would be rendered

involuntary simply because counsel misadvised him on parole eligibility.17




       12
            Id.
       13
            Id.
       14
            687 S.W.2d 320, 322 (Tex. Crim. App. 1985).
       15
            Evans, 690 S.W.2d at 279.
       16
            Id.
       17
            Id.
                                                                        DEAN DISSENT—5

       In Ex parte Moussazadeh II,18 we again considered whether counsel’s deficient parole-

eligibility advice may render a defendant’s guilty plea involuntary. Moussazadeh was

charged with capital murder, pleaded guilty to murder, and was sentenced to seventy-five

years’ imprisonment. His counsel, like counsel in Young and Evans, misadvised him on his

parole eligibility date.19 He filed an application for a writ of habeas corpus claiming that

counsel’s advice rendered his plea involuntary and urging this Court to reconsider its holding

in Evans.

       The Moussazadeh II Court reaffirmed Evans’s holding that parole eligibility must be

an affirmative part of the plea agreement, but significantly altered how the Court would apply

it. Not only did the Court decline to revisit Evans,20 it heightened the burden applicants must

satisfy in proving parole eligibility was an affirmative part or essential part of the plea

bargain. The Court was no longer willing to find parole eligibility an implicit element of a

plea bargain elements by virtue of a trial judge’s acceptance of a plea bargain. Rather, the

Moussazadeh II Court turned to general contract law principles and held that it would not

“imply a parole eligibility element or covenant unless it appears from the plea agreement’s




       18
        Ex parte Moussazadeh, 64 S.W.3d 404 (Tex. Crim. App. 2001) (hereinafter
Moussazadeh II), rev’d on reconsideration, Moussazadeh III, 361 S.W.3d 684 (Tex.
Crim. App. 2012).
       19
            Id. at 409–10.
       20
            Id. at 414.
                                                                      DEAN DISSENT—6

express terms that both parties clearly contemplated this element or covenant.”21 The Court

held that going forward, whether parole eligibility formed an essential part of a plea

agreement 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.”22 And after reviewing the record, we

concluded that Moussazadeh failed to prove, by a preponderance of the evidence, that his

plea was induced by his misunderstanding of applicable parole law and parole eligibility

formed an essential element of the plea agreement.23        The majority only references

Moussazadeh II in postscript to explain that Moussazadeh III overruled it, as well as Evans,

ten years later.24

       Dean pleaded guilty to intentionally and knowingly causing serious bodily injury to

a child by omission in June 2011, and her conviction was final in February 2012. Assuming

Moussazadeh III does not apply to Dean’s involuntary plea claim and prudence permits

deciding the claim on past law, Moussazadeh II—not Young and Evans—controls.

                                Moussazadeh II’s Application

       From my review of the writ record containing the written plea agreement, the formal



       21
            Id. at 411–12.
       22
            Id. at 412 (emphasis in original).
       23
            Id. at 413.
       24
            Ante, at 12–15.
                                                                        DEAN DISSENT—7

record at the plea hearing, and the evidence developed by both the State and Dean throughout

the habeas litigation, I would conclude that Dean is not entitled to relief under Moussazadeh

II. The written plea agreement contains only a single, boilerplate passage about parole: “I

affirm that my plea and judicial confession are freely and voluntarily made, and not

influenced by any consideration of fear, persuasion, or delusive hope of pardon or parole.”

Although “parole” appears in the plea agreement, the “delusive hope” language naturally

mitigates against any suggestion that parole was an essential element of the plea bargain.

Without the presence of express parole terms, the plea agreement offers no support to find

that parole eligibility was considered by the parties.

       Through the lens of Moussazadeh II, the record of the plea hearing does not support

Dean’s involuntary-plea claim. The plea hearing was ordinary: Taking a mere six pages in

the record, the judge ticked through the required waivers and admonitions, accepted Dean’s

judicial confession, and accepted the plea bargain as presented. The judge sentenced Dean

to twenty-five years’ confinement, but before remanding Dean into custody the judge asked,

“Is this a 3-G offense?” Dean’s counsel answered, “It is not, Your Honor.” The State did

not respond. I find no support in the balance of the writ record, including the live hearing

testimony, to conclude that parole eligibility even factored into the plea-bargain discussions,

much less formed an essential part of the plea agreement between Dean and the State.

       Without more, the Court cannot conclude consistent with Moussazadeh II that parole-

eligibility was an element of the plea bargain because it was not expressly contemplated by
                                                                          DEAN DISSENT—8

the parties.25 The Court today finds that Dean, her attorney, and the trial judge all agreed to

the plea bargain while under the mistaken impression that Dean would serve non-aggravated

prison time.26 Finding similarity with the facts of Young in which the record “implicitly”

demonstrated the judge’s misunderstanding of the law, the Court today concludes that the

record shows that Dean’s parole eligibility “was elevated to the status of an element of the

plea bargain.”27 Citing Young and Evans, the Court holds that “[Dean’s] evidence satisfies

the additional requirement that there be some manifestation in the record to show that the

issue of her parole eligibility was elevated to the status of an element of the plea bargain.” 28

       Yet the Court does what we said we would no longer do; it implies a parole eligibility

element even though the record does not establish that it was an element contemplated by the

parties.29 It is also unclear to me how the Court concludes parole eligibility is an element of

plea bargain without one word from the State, the only party other than Dean privy to the

plea agreement’s negotiation.30 The Court’s holding today flies in the face of Moussazadeh




       25
            Id. at 411–12.
       26
            Ante, at 12.
       27
            Id.
       28
            Id.
       29
            See Moussazadeh II, 64 S.W.3d at 411–12.
       30
           See Moore v. State, 295 S.W.3d 329, 332 (Tex. Crim. App. 2009) (“The only
proper role of the trial court in the plea-bargain process is advising the defendant whether
it will ‘follow or reject’ the bargain between the state and the defendant.”).
                                                                        DEAN DISSENT—9

II’s reliance on contract law principles and repudiation of Young’s and Evans’s endorsement

of finding a plea-agreement element by implication. As in Moussazadeh II itself, the Court

today should conclude that it “cannot divine any ‘parole eligibility’ agreement—either

implicit or explicit—from the record.” 31

       I would rather the Court address the Moussazadeh III retroactivity issue we initially

set out to resolve. If retroactive, Moussazadeh III clearly offers Dean the least onerous path

to relief because the current law no longer requires an applicant prove that parole eligibility

formed an essential element of the plea bargain.32 The majority instead chose a path to revisit

past law and attempt to apply it to Dean’s claim, but it results in a faulty analysis and

erroneous conclusion. If it applied the correct law, the Court would have to deny Dean’s

claim because she fails to prove, by a preponderance of the evidence, that her plea was

induced by a misunderstanding of the applicable parole law that formed an essential element

of the plea agreement.33




FILED: November 23, 2016

DO NOT PUBLISH




       31
            Moussazadeh II, 64 S.W.3d at 412.
       32
            See Moussazadeh III, 361 S.W.3d at 690.
       33
            See Moussazadeh II, 64 S.W.3d at 413.
