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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 fcam\the use of a state jail felonv for enhancement

purpose. see memorandum, pq £;

Appliaants previous applicationEUa$ not make this assertion.'Th@
previous appliaction onlv_asserts that the paragraph was not alleged
in indictment t 30,298. see memorandum pg,.4f

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 lSB,th district cited
Brooks to support this position. see prior application.

Applicant contends that the onlv conviction found in anV of his forms
is the prior conviction in indictment § BO,GdO¢

se Exhibit(€xalso-pg 19 of memorandum.

This instument asserts;

daving been convicted of the felony offense of PURGLARY OF A
BUILDING On the 71th day of Novemeherin cause No 23,029/B

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 knowinolv 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 burolarv 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 appli@@h¢ due-process becomes

'.

Lviolated. l

luken_v Stater 780.SW,2d,246._

In luken the court of appeals held that an enhance sentence must
be supported by a written allegation of a prior conviction-lid at37
M&@ accused is entitled to a proper notice of a prior convigtion
that might be used for enhancment purpose.

The prior convitcion in indictment t 30 600 only informs that the
state dntends 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.\ n

sec 4 (a)>

Of the subsequent chapter provodes .

If a subsequent appliaction for a writ of habease corpus is filed after a
'final dispositionof a initial applieeiion challenging the same conviction

a court may not consider the merits or grant relief based upon the\
subsequent appliaction ud&§s appli@Qnt contains>$©ecifics facts establishing

one of the two acceptions.

For the purpose of subsection (C\
A factual basis is unavailable on or before a date described
bV (al (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&idmn
that the prior conviction in indictment 30/600 is the prior
conviction used for enhancement.
For this reason the applicant request that the present application
be reviewed under section (Cl of the subsequent chapter/ w
the applieent has not found anv prior felony that could be used

to increase the range of punishment.

"\

n ri
§oUPTs REsPoNsE ' l

This is was previuoslv letiqated in the first application.

APDT_.ICANT RFBHT']‘AL

 

The 188/th district conduct is conrgjhd by law, When a trialv
court conduct vio&étes one of those laws the court is said tp

have no authoritv to act/Ex,parte Sanchez,918,Sw.Zd,SZ€,-Zl.

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

The court noted\that the prior conviction alleged in indictment
130/600 can not be used for enhancement purpose.fortier V State.
105,sw,3d,697. Tx crm App, 2003.

The judicial performance performed by one with no authority to
act may be raised at any time. meutew Williams 65%'Sw,3d,6551
Applicant contends that.the trial court entered a sentence of

` fourtv Vear's in the caseat bar. ' `

In a previous applie§tion the applicant made several inquiries
into the existance of the specific conviction that was use to
increase the punishment ranqe. the lRS.th District has yet to

provide that information. see memorandum pa 4-5.

The applicant contends that the trial court vioalted his due'

process.
§he court of appeals is asked to review this application

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

authoritv.

\)'\

_ 111
coURTS~REsPOSNSE

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

APPLICANTS RFSPONSE

The court does not assert that the mpplemnh¢v@kh not raise the

issue in an application for_ll:07, or in a habease corpus.

- l
\/..

Applicant contends he is not prohibited from raising the issue

again in his habeas for the first time.

IV
COURTS RESPONSE

Whi]e the specific complaint may not have been raised at that
time l there is no new facts that could not have been raised

in the first appliaction.
APPLICLNTS 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 csurt ig Selfhthat§PRM§§Q§§¢Té@rnéJ
that the prior was some where among his forms.

Once the appicant did discoverrthe prior conviction he still
was noe aware that the conviction‘was a state jail felony.

It was not untJl the appli@ant di=d additioanl res; arch regarding

the prior conviction that the applicant became aware that the
1

conviction was a state jail felonv- “ ' W 'Mf ‘ `“‘ ‘5

One who has been»accused of a crime may some times take months
or even years 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 trialecourt and
his counsel-asito the enhancement matter.
Indictment 30,600 is the new fact,that applicant has presented in
the current application.
the court of appeals has recognozed.in Bradv voluntariness

which explain that a guiltv plea must be entered.bv one aware of
the direct'conseguences to be voluntarv.

'Failure of the counsel to'informy invetigate,and'obiectrviola:es

theaaccuse due process. of the sixthr’and fifth amandment.

Several courts have recognized- where ineffective assistance of
counsel otcurs before a trial the harm consistent to the defense.
Exparte Lemkew lR,SW,Rd,7Ql.

the court of appeals noted in Lemke, Thatucounael failure to'comm-`
v'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
vsuffered when counsel fail's to convey information.

Sec (Cl provides review.of those issue's. whereas counsel may

explains

V .
coURTS RESPONSE

The issue of the allegation inadequacy of the indictment was

previuosly raised, in a first application.

_APPLIACNTS RESPONSE

 

The 188/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 applicants&fprms.
For these reasons the court of appeals is asked to develope the
records even futher, whereas the 188/th District court may reveal
the prior conviction used to increase the applicants punishment

range,
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

ed not related to the

are labled denial/ while the disposition relet
merits are labled dismissed. Regardless of the lable the court noted
that it should look at the.substance_of the disposition to determine
whether the writ is barré@ by sec e.Ex;parte/Torres 943,SW,2d,469
Applicant respectfully ask that the appeals court review these meritable
/regardless as to whether the applicanh% has satisfied the subsequent

sec 4.

