15101'§1 010;21011
119 112 111

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IN THE COURT OF CRIMINAL APPEALS [@§‘TE©{[|\\}]{ DENDE©
CAUSE-75, 937-07, WR-75, 937-06, WR-75, 937-08 ~=-=-==.=;
- ‘ TR CT 5617, 5593, 5591-A

 

STATE QF TEXAS RECE!VED lN
. cOURT 01= chuNAL ApPEALs
V_.
Nov 04 2015
JAl\/IES ALLEN PELLOAT, APPELLANT PRO SE
Abe% Acosta, Clerk
MOTION FOR RECONSIDERATION FROM DECISION RENDERED IN THE COURT OF

CRIMINAL APPEALS
Now comes Appellant, James Allen Pelloat, in the above cause(s) to request reconsideration from this
court of the decision rendered on 8/14/2015. In support of this reconsideration, the Appellant submits
the following:
l

Appellant made every effort available to him to follow the proper procedure and has shown due
diligence to ensure as best he could his statutory right to iile his amended 1107 was protected. Once he
received all of the supplemental records &om Newton County that were filed in this original 1107, he
found two pieces of new evidence that he had not seen or knew of prior to tn'al. These pieces of
evidence were (1) the transcripts from his day in court,' March 23, 2005, and (2) a linding of facts and
conclusion of law. A copy of these two new items of evidence is included as exhibits. In June of 2012,
he filed his amended 1107 with Bree Allen, Newton County \District Clerk.

He periodically sent letters aher he submitted his amended 1107 to Ms. Allen asking about the
status-. Two copies of such letters are included in this motion as an exhibit He never received a
response nom Ms. Allen in 2013.

He was diagnosed with state 3 prostate cancer and began receiving treatment via surgical
removal and radiation treatment Upon the completion of his hospitalization and therapy of 6 weeks
from January to March 2015, he immediately filed a motion with the judge in his case to have the

District Clerk process his amended 1107. The District Clerk never processed his 1107 and merely kept

the motion un-iiled and on moot status. This prejudiced his due process right and access to the courts

and the rules of the criminal court of appeals procedure. This non-compliance with the Code of

Criminal Procedure Rule 1107 also severely prejudiced his access to the courts.

|l=l

The first piece of new evidence he found in the supplemental findings of facts and conclusions
of law from Newton County dated September 26, 2011, the District Attomey stated that “His attorney
knew about the enactment of September 1, 2003, for P.C. 21.12” on item number 12. This meant that
his attorney, \Vllliam Morian, knew of cause No(s) 5594 and 5618 which both are deemed as ex-post
facto law in the United States and the Texas.Constitution. The attorney was also aware that Appellant
was being wrongfully convicted and sent to prison. By withholding such information from Appellant,
his counsel was ineffective and incompetent See Ex Partv Mou__s_s_azadeh 361 sw 3d 648. The
withholding of such important facts by Appellant's lawyer and the District Attomey made his guilty

plea unknowingly and involuntary and tainted the entire judicial process.

With the two, possibly three, illegal P.Cl 21.12 charges, a known charge on an invalid indictment 5617,
a known charge 5594 where the victim lied about the date (where nothing happened until his 17‘h
birthday) that would invalidate the charge because of the conflict that the alleged crime occurred. If the
court ruled against the alleged date, Appellant would have been convicted of only one of the six
charges thus making the outcome totally different and proving the second prong of Stricklan'd v.

Washington and items mention in I, II, and III proving the first prong of Strickland.

g

In January 2005, Appellant was indicted (see indictment 5617) for Aggravated Sexual Assault
that allegedly occurred on May l, 2001. Through school documents, the attorney proved that Appellant
had not been hired to teach in Newton ISD. The day of the plea bargain conference, District Attomey
Lewis stated “that all they had to do was change the last number in the year from 2001 to 2002 and that
charge would still be valid.” The Appellant attempted to express to the District Attomey while at the
conference that even with the date changed from 2001 to 2002, it would still be wrong. Following the
conference Appellant told his attorney, Mr. Morian, that nothing happened until much later in the
summer. The record indicates the date of birth of the alleged victim and the sex between Appellant
and the victim had to occur prior to June ll, 2002. Appellant stated that the sex occurred much later in
the summer and this should have made Mr. Morian aware that indictment 5617 was invalid. The
District Attomey lowered the charge from Aggravated Sexual Assault to Sexual Assault. "l`his action
extended the statute of limitations for 20 years more. (See Judgment for lowering charge.) This
lowering was done without judicial knowledge and without Appellant's knowledge since no such
arrangements were discussed at Appellant's plea bargain conference. The changing of the date and _
lowering of the charge deprived Appellant of a right given to him in the United States and Texas
Constitution

On March 23, 2005, Appellant appeared before the Honorable Judge Monte Lawlis for
acceptance of Appellant's plea bargain and sentencing Appellant's attorney, Mr. Morian, questioned
the lowering of cause 5617 from Aggravated Sexual Assault to Sexual Assault to make clear that it was
lowered as a lesser included offense (see trial transcripts). The District Attomey stated, “Yes, it was
lowered as a lesser included crime and it was plainly written on the judgments.” The judgments at no
time show a “lesser included crime” showing that the l)istrict Attomey openly committed perjury by

consciously lying concerning the lesser included crime.

PRAYER

Appellant, James Allen Pelloat, prays this Honorable Court will accept this Motion for

Reconsideration and bring this cause back before the court for proper redress.

Humbly submitted,

James Allen Pelloat

TDCJ # 1289716

CT Terrell Unit (R-3)

1300 FM 655

Rosharon, Texas 77583-8609

CER`TIFICATE oF sERvICE

I, James Allen Pelloat, hereby certify that a true and correct copy of this Motion for Reconsideration
has been furnished via US Postal Services to the following:

Abel Acosta, Clerk §o-c\w) ®$LQ;,»/\ @M

The Court of _Criminal Appeals
PO Box 12308 Capitol Station
Austin, TX 78711

Bree Allen, District Clerk
lA Judicial Court

PO Box 535

Newton, TX 75966

CAUSE NOS. 5591, 5593, 5594 & 5617

THE STATE OF TEXAS
VS.

JAMES ALLEN PELLOAT

*****

IN THE DISTRICT COURT
l-A JUDICIAL DISTRICT
lNEWTON COUNTY, TEXAS

PLEA

On March 24, 2005 the following proceedings were had in the l~A Judicial

District Court of Newton County, Texas: `

 

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APPEARANCES

FOR THE STATE: MR. A.W. DAVIS

DIS'I'R.ICT ATTORNEY
NEWTON, TEXAS '

FOR THE DEFENDANT: MR.WILLIAM MORlAN
SEALE, STOVER & BISBEY
JASPER, TEXAS

 

 

THE JuDGE: court come to order. cause No. 5591, 5593, 5594, 5617;
The State vs. James Allen Pelloat

MR. DAVIS: The State’s Ready, Your Honor.

MR. MORIAN: Defendant’s ready, Your Honor.

THE IUDGE: All right, Do you wish to have the indictments read?
MR. MORIAN: No, Your Honor. We’ll waive the reading

'I`l-'IE IUDGE: Is -- is the defendant the same person named in each
indictment and is his name spelled correctly?

MR. MDRIAN: Yes, Your Honor.
THE JUDGE: All right, at this time I’d ask the Defendant to stand.
'I'HE DEFENDANT: (Stands).

THE IUDGE: Do you plead guilty or not guilty to the indictments in each
of the cases I just named?

THE DEFENDANT: The ones you just named, sir, I plead guilty to, yes,
sir. `

THE JUDGE: Before I can accept your plea of guilty l have to understand
several things First of all, I want to know if you have
understood all of the papers that you have signed?

THE DEFENDANT: Yes, sir.

THE JUDGE: And did you voluntarily sign these papers?

THE DEFENDANT: Yes, sir.

THE JUDGE: Are you entering this plea of guilty freely and voluntarily?

THE DEFENDANT: Yes, sir.

'I'HE JUDGE: In each case?

THE DEFENDAN'I': Yes, sir, in each case.

 

THE JUDGE: All right, I will accept the pleas of guilty in Cause No.
5591, 5593, 5594, and 5617. The state may present the
evidence and the - any recommendation

MR DAVIS: Thank you, Your Honor. The first case that
we’re going to present is 5591. The charge is improper
relationship of an educator with a student The defendant
was arrested in this case on November the 7‘ll of 2004 and
indicted December the 6th of 2004. There has been plea
bargaining in the case. Among the other things that have
been agreed to in the plea bargaining is that there’s a
judicial confession and an agreement that the evidence in
the case may be summarized orally. And it’s further
agreed that the State witnesses and other evidence are
available and informally presented to show that James
Allen Pellcoat - Pelloat, the defendant, on or about the
date alleged in the indictment prior to the presentmenth
the indictment in Newton County, Texas, did intentionally
or knowingly commit the acts described in the indictment
upon the victim, who was at the time younger than 17
years. 1 -

I’d ask you, Your Honor, to take judicial notice of all the
papers on file in the case, and in particular, the three page
guilty plea memorandum that’s signed by the defendant
by his attorney, by me, and by Your Honor; the six page
written plea admonish -- admonishments document which
also includes the various waivers of the defendant a
judicial confession signed by the defendant; along with
signatures of the defendant his attorney, my signature, and
yours. And I’d particularly ask that you take judicial
notice of the two judicial confessions one on page 5 of the
written plea admonishments, and one on page 2 of the

- written plea mem -- the guilty plea memorandum Both
judicial confessions are in writing and sworn to under oath
by the defendant before the district clerk.

At’cer Your Honor has finished disposing of the case, at
some point in this proceeding there are victims and
victim’s family that wish to address the defendant

'I'HE JUDGE: All right Mr. Morian, is this the agreement in 55 z-

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THE JUDGE: 5591. if you would room that - §é\_.-" /\
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MR. MORIAN: Judge, these - these --the plea recommendation is 1
basically to dispose of all cases at the same time, and
there’s going -- and that plea recommendation is that
there_’s going to be a dismissal of one of the charges; so,
altogether collectively those are going to -- that’s how
it’s been presented to me.

THE JUDGE: 20 years? Yeah.
MR. MORlAN: Yes, sir. `

THE JUDGE: Is this the agreement?
THE DEFENDANT: Yes, sir.

THE JUDGE: Mr. Morian, is this the record in all of the cases? Have -
have you had time to discuss these papers with your client
and go over the papers?

MR. MORlAN: Yes, Your Honor, I have, and even today we’ve - _of
course, as you know, we were supposed to have gotten
started at 2:00 o’clock; and l’ve spent quite a bit of time
with him since then going over the plea papers as well,
and explaining it to him. He does understand what we’re
doing today.

THE JUDGE: All right Mr. Pelloat, you understand that I’ve set out all
of the warnings and information in writing, and you have
1 had a chance to study that and go over that; is that correct?

THE DEFENDANT: Yes.
THE JUDGE: ln all cases?
THE DEFENDANT: Yes, sir.

THE JUDGE: What I’m going to do, I will take each case separately and
at the conclusion of each case then I will give anyone the
opportunity at that time to make an impact statement and
we’ll wait until we finish all of the cases.

MR. DAVIS: All right Your Honor, at this time maybe it would be _
appropriate for the record if I went ahead and just stated the mm

plea bargain as the State understands it and hopefully \asg{i§`m 71"&""//,,//
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THE JUDGE: Aii right
MR. DAVIS: -- it at this point-, before we go to one case at a time.
THE JUDGE: All right Go ahead. .

MR. DAVIS: The plea bargain is ~~ is that Mr. Pelloat has agreed to plead
' guilty in Case No. 5591, 5593, 5594, and 5617. In return
we have agreed to recommend for your consideration a
sentence of 20 years on each of those cases, with two of
those scntences, specifically 5617 and 5593,'to run
consecutively as opposed to concurrently; and that is the
- basis of the agreement

We’ve also agreed as part of the plea agreement to dismiss
Case No. 5618. It’s also, as of a few minutes ago, it’s been
agreed by the parties that No. 5592 will be set aside from
this plea bargain that we’re doing today, or this - this
procedure we’re following today, will be completely set
aside and the State will have the opportunity to try that-
that case ata future date, and the option to ask the Court to 1
stack it along with the other -- the other convictions that -
that are in record.

THE JUDGE: All right Let - let me do this then. And this will
apply to all -- all four cases. Is this the agreement Mr.
Morian?

MR. MORlAN: Yes, Your Honor, that’s correct Just to make sure that
on Cause No. 5617, that is also now the lesser included
second-degree felony offense rather than the first-degree
It was originally a first-degree felony.

MR. DAVIS: Yeah. The plea papers very plainly set -- set that out, .
Judge, as does the judgment that we’ve submitted --

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THE JUDGE: All right, \` ;,\<DXRT CO/,,,,,/
MR DAVIS: - for Your Honor’s consideration o '

THE JUDGE: is this the agreement

 

THE DEFENDANT: Yes, sir.

THE JUDGE: All right And you understand that initially 5 592 was to be
' a part of this plea agreement but there is no agreement

_ with reference to that case and that case has been §
1 withdrawn, and the State’s attorney will have the option to l
call that case for trial at some later time. Do you
understand that? '

THE DEFENDANT: Yes.

THE JUDGE: And you understand also that there are two possibilities if
- if there is a conviction in that case and a sentence, that ,
those sentence --that sentence could be either run _ _ 1
concurrently or it could run consecutively with these other
sentences? 1
THE DEFENDANT; Yes, sir. 1
THE JUDGE: You understand that?
THE DEFENDANT: Yes, sir.

THE JUDGE: And Mr. Morian, you’ve had a chance to go over that with
him_ and discuss that with him; is that --

MR. MORlAN: Yes, Your Honor, that’s correct
THEJUDGE: - correct? All right ' "
MR. DAVIS: Just one other thing if I may, I take it that -- that you’re
ready for me to sum up as to the other three cases just as we
did with --‘ ' 1
THE JUDGE: Yes. -' ‘
MR DAVIS: -- with the first one. _ 1

THE JUDGE: If you’ll go ahead and do that and then I can take care of \\\\\\\\\\\I~C~~~/,,,

 

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all of them. ‘ §o\"\,c)'\.\_)\m]` 650 o '

MR. DAVIS: I’ll do them one at a time if you’d want me to. §§2 Z=Z
THE JUDGE: Yes, sir. :=»,E/S"~._ * _.~*
4’ /\‘<<\-""

MR. DAVIS: All right I’d just like the record to reflect in 5593, 5594’,”//,,(,:(3UNT`(“1\\\\\" `
and 5597 (sic), that we have had the same agreement in '""""“

each of those cases as to Your Honor being able to take
judicial notice of the evidence or the papers on file in the

case, which include a judicial confession, and that we may

summarize the evidence which in each case is that James
Allen Pelloat on or about the date alleged in the indictment
in the particular case referred to and prior to the
presentment of that indictment in Newton County, Texas,
did intentionally or knowingly commit the acts described in
the indictment upon the victim in each of the cases, who
was at that time younger than 17 years. And that that guilty
plea memorandum and the written plea admonishment both
include judicial confessions, both of which are sworn under
oath before a district clerk, and we ask, Your Honor, once
again to -~ to take judicial notice of those documents

THE JUDGE: Is this agreeable?‘
MR. MORlAN: Yes, Your Honor.
THE JUDGE: Is this agreeable'?
THE DEFENDANT: Yes, it is.

THE JUDGE: All right. Anything iiirther before I announce my
acceptance or rejection‘l

MR. MORIAN: No, Your Honor.

THE JUDGE: All right, I will take judicial notice of the papers in each
case, I will accept the plea agreement in each case. Based
upon your plea of guilty in Cause No. 5591, 5593, 5594, `

5617, you will be found guilty You will be sentenced to
confinement in the institutional division of the Texas
Department of Criminal Justice for a period of 20 years.
The sentences in Cause No. 5593 and 5617 will run
consecutively The sentences in the remaining two cases
will run concurrently By law you are entitled to credit for
time served, and according to the notes provided me on the
plea papers, that would be a total of 138 days as of today,
and you will be given credit on these sentences for that
period of time.

You can go ahead and be seated, and --
THEDEFENDANT; (c¢mplies).
THE JUDGE: Will there be some statements?

MR. DAVIS: Yes, Your Honor.

 

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OFTEXAS .l.lil. ii 1_0 Fli2 afl

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___-__-______-_______
___________-______~~__

ON APPL|CAT|ON FOR A WRlT OF HABEAS CORPUS
CAUSE NCS. ND 5591, 5593, 5617 & 5594 lN THE 1A JUD|C|AL DlSTRlCT COURT
FROM NEWTON COUNTY

FlNDlNGS OF FACT AND CONCLUS|ONS QE lAW

 

App|icant filed an application for post conviction writ of habeas corpus. This Court is bf the
opinion that a hearing is not necessary and chooses to rely on affidavits and hereby entelrs the

following Flndings of Fact and Conclusions of Law.

l. FlNDINGS OF FACT
1. App|icant was indicted for six felony offenses:

/>);/ Cause Number 5591 - lmproper Relationshlp Between Educator_ and Student /
,"` . ’ l
€ause.Number_.SSQZ ¢.Aggrav.ated -Sexual:Assa utter

l

s §-"'1;/ Cause Number 5593 - Ser<ual\Assault .
Cause Number 5594 - improper Relationship Between Educator and Student C`)
' ;»j; Cause Number 5617 - Sexu_a| Assault /

Cause »Number-S~G‘l-S -~Impro`per'R'elation`sh'iptzetweenfduc‘atorand~$tud@t.
2. App|icant entered into a plea bargain with the State and plead guilty to the following
l

charges:

 

Cause Number 5591 ~ lmproper Relationship Between'Educator and Student

. Cause numbers 5592 and 5618 were both dismissed.

. App|icant was sentenced to twenty (20) years confinement on all four cases.

Cause Number 5593 - Sexual Assault l g
Cause Number 5594 - improper Relationship Between Educator and Student

Cause Number 5617 - Sexual Assault.

 

. Cause number 5517 (Sexual Assau|t) was to run consecutive to the sentence in cause

number'5593 (Sexual Assauit). All other sentences would run concurrently

. The indictment in cause number 5594 alleged an offense date of November 7, 2001,

which was prior to the enactment of the "lmproper Relationship" statute. (Pena| Code
' i
section 21.12). l

. The date of offense reflected in the judgment and sentence in cause number 5594 was

November 7, 2004. This date coincides with the offense dates alleged in cause nulnbers

l

5591 and 5593, which is after the enactment of Penal Code Section 21.12.
Evidence was provided App|icant's trial counsel pursuant to his motion for discovery,

which included the victim',s statement, App|icant's statement as well as other evidence,

l
that indicated the conduct constituting the offense alleged in cause numberl5594

continued until the time immediately prior to App|icant's arrest in 2004, aftrlr the
enactment of Penal Code Sectlon 21.12. l
lig

. App|icant's trial counsel advised App|icant of all legal aspects in these cases inciudi

l

the elements of each one of the crimes needed to be proven by the State beyond a

reasonable doubt as well as the range of punishment for each of the alleged crimes.

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10. App|icant's trial counsel advised App|icant of the_ possibility of the convictions running
l
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11.

12.

13.

14.

15.

consecutively in the event that he was found guilty.
App|icant's trial counsel advised App|icant that the exact date of the alleged offen e did
not have to be proven specifically as long as it was proven that the alleged act occlirred
within the statute of limitations for the particular offense and before the date of the

indictmentl.
App|icant's trial counsel was aware of the effective date of the statute making an '

l

improper relationship between an educath and student a crime.

App|icant's trial counsel allowed App|icant to plead guilty to the offense in cause §
number 5594 because there was evidence that the prohibited conduct continued until
2004 and would have constituted an offense after the effective date of Texas Penal

Code section 21.12.

App|icant's trial counsel further allowed App|icant to plead guilty to that offense
because he believed he (App|icant) would have potentially received a much more
lengthy prison sentence if convicted on ali charges.
The sentence in cause number 5594 runs concurrent with other sentences imposell and
therefore does not affect the amount of time App|icant will have to serve. ;
Ili‘ CONCLUS|ONS CF_ LAW l
App|icantfs plea was entered knowingly and voluntarily l
App|icant's trial counsel's conduct was not deficient conduct that fell below the l

standards of performance required of counsel in criminal cases.

Applicant's trial counsel did not render ineffective assistance of counsei.

 

l

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4. App|icant has failed to meet his burden of proof by a preponderance of the eviderice.

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5. App|icant is not entitled to the relief requested in his Application for Writ of l-labeas .

l

Corpus. l
l
Having considered the evidence as set forth before this Court and in light of the foregding
Findings of Fact and Conclusions of Law, it is the opinion of this Court that the relief prayed for

in this case be DEN|ED. l

l
l

lt' rs further ORDERED that copies of this document be served on the App|icant and counsel

for the State.

l
. l
Signed and entered on this£_é day of ;WHE , 2011. g

E P. OW N ,JUDGE -
.lUDlClAL DlSTRlCT COURT
NEWTON COUNTY, TEXAS .

       

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EX Parte Moussazadeh; 361 S.W. 3d 684 (Tex. Crim. App. 2012)

( 11 PAGES )

. We§tiew.

361 S.W.3d 684
(Cite as: 361 S.W.3d 684)

Court of Criminal Appeals of Texas.
Ex parte Max MOUSSAZADEH, App|icant.

Nos. AP-76,439,,AP~74,185.
Feb. 15, 2012.

Backgro\ind: After pleading guilty to murder, and

after his murder conviction was affirmed on appeal,
962 S.W.Zd 261, applicant sought a writ of habeas
corpus, contending that his mistaken understanding
of parole eligibility based on misinformation coun-
sel conveyed to him rendered his guilty plea invol-

" "untary. The 232nd District Court,_Harris County,

A.D. Azios, J., entered findings o,f` fact supporting
relief The Court of Criminal Appeals, 64 S.W.3d

'404, denied relief. Applicant filed subsequent

habeas`app|ication, and a suggestion for reconsider-
ation asking the Court of Crir_ninal Appeals, on its
own motion, to reconsider its denial of initial

,. habeas application

Holdings: The Court of Criminal Appeals, Johnson
,J., held that:

`(1) it would reconsider on its own initiati_ve, ap-

plicant s initial habeas application;

'(2) question of whether parole eligibility forms an

affirmative part or essential element of the plea
agreement is not determinative of court's deficient
performance inquiry under Str_ic/<land; abrogating,
Expa)ie Evans, 690 S W. 2d 274; _

(3) counsel' s misinformation to defendant as to his
parole eligibility constituted deficient performance_;
and _ l _

(¢_1) counsel's error prejudiced defendant, and‘thus
was ineffective assistance ` 4 l

Relief granted upon reconsideration

Kciler, P.J., concurred in judgment,'with opin-.` "

ion.'

West` Headnotes

© 2012 T_homson Reuters. No Clai1nt'o Orig. US Gov. Works.

Cases

Page 1

[1]_Habeas Corpus 197 €/`1~7899

197 Habeas Corpus l "
_ 1971V Operation and Eff`ect of Determination;
Res Judicatra; Successive Proceedings n
197k899 k. Dismissal or hearing on success-
ive petitions; evidence Most Cited Cases
Court of Criminal Appeals would reconsider,
on its own initiative,,applicant's initial application
for writ of habeas corpus, which the Court had pre-
viously denied, and, thus, would dismiss applicant's
subsequent habeas application Rules App.Proc.,
Ruie 79.2(d). `

121 Haizéh§ Corpus 197 €:=>894.1

197 Habeas Corpus
' 1971V Operation and Ef`fect of Determination;v
Res Judicata; Successive Proceedings

197k894 Refusal to Discharge; Subsequent

. Applications; Prejudice

197k894':.1 k. 1n general. Most Cited ‘

`

An initial application for a writ of habeas cor- .
pus seeking an out-of-time appeal does not consti-

'tt'ite a challenge to the conviction and does not bar

subsequent writ applications

¢._.

` 131 Criminal Law 1.10 @273.1(31

l 10 Criminal Law'

1 10XV Pleas

1101<27j Plea of Giriity
110k273.1 Voluntary Character n
1101<273. 1(3) k. Effect ofillegal deten-

tion or violation of constitutional rights; iilegally_
acquired evidence MostCited Cases - '

Co'unsels advice can provide assistance so in-
effective that .1t renders a guilty plea involuntary.
U.S.C».A. Const;/»\mend-."()'. ~ ~

[4] Criminal Law 110 @273.17(3)‘ . . »

110 C'rjiminai Law
ll 10XV Pleas

  

, .1 _
/i\..=.m iieen»;=., .

361 S.W.3d 684
(Citc as: 361 S.W.3d 684)

"l 10k272 Plea of Guilty
l 10k273. l Voluntary Character
l 10k273 1(3) k Effect ofillegal deten-
tion or violation of constitutional rights; illegally
acquired evidence Most Cited Cases
A guilty plea is not knowing or voluntary if
made as a result of ineffective assistance of coun-
Sel. U.S.C.A. Const.Amend. 6.

[5] Criminal Law 110 <"7-9273.1(3)

110 Criminal Law

l 10XV Pleas

110k272 Plea of Guilty
l 10k273.l Voluntary Character

t l 10k273.1(3) k. Ef_fect ofillegal deten-
tion or violation of constitutional rights; illegally
acquired evidence, l\/lost Cited Cases

A defendant's decision to plead guilty when
based upon erroneous advice of counsel is not done
voluntarily and knowingly.

[6] Pardon and Parole 284 €,`7~'>42.1

284 Pardon and Parole
28411 Parole
y 284k42 Constitutional and Statutory Provi-
sions
284k42.l k. In general. Most Cited Cases

Prisons 310 €'5\9248

310 Prisons
31011 Prisoners and lnmates
31011(F) Duration of Confinement
310k248 k. Conditional release; com-

munity placement Most Cited Cases

The statute in effect when the holding offense
is committed determines an inmate's eligibility for
release on mandatory supervision or parole

[7] Pacdon and Parolc 284 @48.1

284 Pardon and Parole
28411 Parole
,284k48 Eligibility for Parole or Parole Con-
sideration

Page 2

284k48.l k. In general. Most Cited Cases
Parole eligibility requirements are direct con-
sequences ofa guilty plea because they are a defin-
ite and largely automatic result ofa guilty plea. l

[8] Pardon and Parole 284 @47

284 Pardon and Parole
28411 Parole
284k45 Authority or Duty to Grant#Parole or
Parole Consideration

284k47 k. Discretionary nature Most
Cited Cases g
Parole attainment is not governed by statute 4
and is granted at the discretion ofthe parole board.

[9] Constitu~tional Law 92 @2789

92 Constitutional Law t
92XX111 Ex Post Facto Prohibitions _
92XXIII('A) Constitutional Prohibitions in
General
92k2789 k. Penal laws in general. Most
Cited Cases

Constitutional Law 92 €/`3332790

92 Constitutional Law
92XXlll Ex Post Facto Prohibitions
92XXIII(A) Constitutional Prohibitions in
General
92k2790 k. Punishment in general. Most
Cited Cases
A law that changes the punishment for a crime
after the crime has been committed is an unconsti-_
tutional ex post facto law only if it infiicts a greater
punishment than did the previous law. '{'U.S.C.A.
Const. Arc. 1, § 10,<>1. 1. ' -

[10] Constitutional Law 92 @2789

92 Constitutional Law
92XX111 Ex Post Facto P'rohibitions
92XXIII(A) Constitutional Prohibitions in
General `
92k2789 k. Penal laws in general. Most
Cited Cases

©‘2012 Thomson Reuters. No Claim to'Orig. US Gov`. Works.

361 s.w.3d 684
(Cite as: 361 s.w.3d 684)

l 10k272 Plea of Guilty
1 10k273.1 Voluntary Character
110k273.1(3) k. Effect ofillegal deten-
tion or violation of constitutional rights; illegally
acquired evidence Most Cited Cases
A guilty plea is not knowing or voluntary if

made as a result of ineffective assistance of coun- '
sel. U.S.C.A. Const.Amend. 6.

151 criminal Law 110 §>.=>273.1(3)

110 Criminal Law

l 10XV Pleas

110k272 Plea of Guilty
l 10k273.l Voluntary Character
110k273.l(3) k. Effect ofillegal deten-

tion or violation of constitutional rights; illegally
acquired evidence Most Cited Cases

A defendant's decision to plead guilty when
based upon erroneous advice of counsel is not done
voluntarily and knowingly.

'[6] Pardon and Parole 284 @42.1

284 Pardon and Parole
28411 Parole
284k42 Constitutional and Statutory Provi-

sions
284k42.1 k. ln general. Most Cited Cases

Prisons 310 '@248

310 Prisons
`_ 31011 Prisoners and Inmates
31011(F~) Duration of Confinement
310k248 k. Conditional release; com-
munity placement Most Cited Cases
The statute in effect when the holding offense

'is committed determines an inmate's eligibility for

release on mandatory supervision or'parole.
[7] Pardon and Par,ol_e 284 W48.1

284 Pardon and Parolel
28411 Paroie

284k48 Eligibility for Parole or Parole Con-

sideration

Page 2

284k48.1 k. In general. Most Cited Cases
Parole eligibility requirements are direct con-_
sequences of a-guilty plea because they are a defin-
ite and largely automatic result of a guilty plea.

[8] Pardon and Parole 284 €=347

284 Pardon and Parole

28411 Parole

284k45 Authority or Duty to Grant Parole or

Parole Consideration
284k47 k. Discretionary nature Most
Cited Cases _ - . ": ' ,

' Parole attainment is not governed by statute ‘
and is granted at the discretion of the parole board.

[9] Constitutional Law 92 €=>2789

92 Constitutional Law
92XX111 Ex Post Facto Prohibitions
' 92XX111(A) Constitutional Prohibitions in
General -
92k2789 k. Penal laws in general. Most
Cited Cases

Constitutional Law 92 @2790

92 Constitutional Law
92XX111 Ex Post Facto Prohibitions
n 92XXIII(A) Constitutional Prohibitions in
General

` z

92k2790 k. Punishment 111 general Most
Cited Cases '

A law that changes the punishment for a crime
after the crime has been committed is an unconsti-
tutional ex post facto law only if it inflicts a greater
punishment than did the previous law. ”U. S. C.A
Const Art. 1, § 10, cl. l. ‘

1101 consciturionai Law 92`©-;2789

' 92 Constitutional Law

92XX111 Ex Post Facto Prohibitions ` _
92XXII_1(_A) Constitutional Prohibitions in

` General

92k2789 k Penal laws in general Most
Cited Cases

©'2012 Thomson Reuters. No Claim to Orig. US Gov. Works.'

 

361 S.W.3d 684
(Citc as: 361 S.W.3d 684)

A statute which mitigates the` rigor of the law

b in force at the time a crime was committed cannot

be regarded as ex post facto with reference to that

crime U.S.C.A. Const. Art. l,§ 10, cl. 1.

[11] Criminal Law 110 @1920

110 Criminal_Law
1 10XXX1 Counsel
1 10XXX1(C) Adequacy of Representation
_1 10XXX1(C)2 Particuiar Cases and 1ssuss
110k1920 k. Plea. Most Cited Cases
The question of whether parole eligibility

forms an affirmative part or essential element of the 7

plea agreement is not determinative of the court's
deficient performance inquiry under the SIrick/and
test for ineffective assistance of counsel; abrogat-
ing, Ex parte Evcms, 690 S.W.2d 274. U.S.C.A.
Const./\mend. 6.

[12] Habeas Corpus 197 €/`=9486(3)

197 Habeas Corpus
19711 Grounds for Relief; Illegality ofRestraint
19711(13) Particular Defects and Authority for
Detention in General
197k482 Counsel
., 197k486 Adequacy and Effectiveness
of Counsel . v ,
l97k486(3) k. ~Arraignment and
plea, Most Cited Cases
To obtain habeas corpus relief on a claim of in-
voluntary plea based on counsel's erroneous advice,
a habeas corpus applicant must meet both prongs of
the Slrickland standard for ineffective assistance of
counsel, which are that counsel's performance was

-deficient,‘and that a probability exists, sufficient to

undermine the court's confidence in the result, that
the outcome would have- been different but for
counsel's deficient performance; _inithe context of
involuntary plea, the “different»outcome” is choos-
ing not to plead and instead choosing to go to trial.
U.S.C.A. Const.Amend,. 6_ '

1131'Crin_iinai Law 110 €>=>1882

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.

Page 3

110 Criminal Law .
l 10XXX1 Counsel g
1 10XXX1(C)- Adequacy of Representation
llOXXXI(C)l In General »
110k1879 standard of affective As-.
sistance in General
110k1882 k. Deficient representa-
tion in general. Most Cited Cases
Counsel's performance is deficient, as neces-
sary to establish ineffective assistance if it is
shown to have fallen below an objective standard of
reasonableness; the constitutionally appropriate
level of reasonableness is defined by the practices
and expectations of the legal community and pre-
vailing professional norms therein U.S.C.A.
Const.Amend. 6.

1141 Criminai st 110 <:>1920'

1 10 Criminal Law
1 lOXXXI Counsel
_l lOXXXl(C) Adequacy of Representation
l 10XXX1(C)2 Particular Cases and Issues
110k1920 k. Plea. Most Cited Cases
In situations in which the law is not clear, plea
counsel should advise a client that pending criminal

_ charges may carry a risk of other serious con-

sequences; however, when a serious consequence is
truly clear, counsel has an equally clear duty to give
correct advice, and both failure to provide correct

` information and providing incorrect information vi-

olate that duty.
1151 criminal st 110 €>=31920

1 10 Criminal Law
llOXXXI Counsel _
l lOXXXI(C) Adequacy of Representation .
110xxx1(c)2 Particular.oases and issues
110kl920 k. Plea. Most Cited Cases _
Defense counsel's misinformation to murder--
defendant as to his parole eligibility,»on which de-
fendant relied in pleading guilty, constituted defi-
cient performance, as element of ineffective assist-_
ance; parole eligibility requirements were pre-
sumptively mandatory, and counsel provided incor-

ua ge “"A "

fi'\ e»r§;a,i'rs? 1

Abil` .. --

 

  
 

361 s.w`.3d 684
(cile asi 361 s.w.3d 684)

rect advice U.S.C.A. Const.Amend. 6; Vernon's
Ann.Texas C.C.P. art. 42.18(8)(b)(3) (Repealed).

1161 criminal Lew 110'@1920

l 10 Criminal Law
1 10XXX1 Counsel 1

_1 10XXX1(C) Adequacy of Representation
1 10XXX1(C)2 Particular Cases and Issues

1 110k1920 k. Plea. Most Cited Cases
_ Defense counsel's misinformation to `murder
defendant as to his parole eligibility, on which de-
fendant relied in pleading guilty, prejudiced de`-
fendant, and thus was ineffective assistance; por-
tion of defendant's sentence that had be served be-
fore he became eligible for parole was double the
portion that he was led to believe he had to serve,
and defendant swore in an affidavit that he would
not have pled guilty if he had known the actual time
he would have to serve U.S.C.A. Const.Amend. 6;
Vernon's l Ann,Texas C.C.P. art. 42.18(8)(b)(3)
(Repealed). ' ' `

*686 Randy Schaffer, Houston, for Appellant.

Andrew J. Smith, Asst. D.A., Houston, Lisa C.
McMinn, State's Attorney, Austin, for State.

- 0PINION
JOHNSON, J., delivered the opinion of the Court in
_which_PRICE, WOMACK, KEASLER, HERVEY,
COCHRAN, and`ALCALA, JJ., joined
Applicant pled guilty to the offense of murder

without an agreement for punishment The trial

court accepted the plea and sentenced.applicant to
seventy-five years' incarceration On direct appeal,
' the court of appeals affirmed the judgment`of the
trial court. Mc)ussazadeh v. Slare, 962 S.W.2d 261
(Tex.App.-l-loustoll'[l4th Dist.]l 1998, pet. re`f‘d) (
Mozlssazadeh 1 ).` Thereafter, applicant filed an ap-
plication for habeas corpus relief. In a published
opinion, we denied relief because applicant ‘Lfailed
to prove, by a preponderance of the evidence, that
his plea .was induced by a misunderstanding of the
applicable parole law which formed an essential-

Page 4

element of the plea agreement.” Ex pa)*te Mous-
sazadeh, 64 S.W.3d 404,.413 (Tex.Crim.App.2001)
, cert. denied, 537 U.S. 813, 123 S.Ct. 74, 154
L.Ed.2d 16 (2002) (' Moussazaa'eh 11, #-
AP~74,185). Applicant filed a subsequent applica-
tion for writ of habeas corpus, Moussazadeh 1[1, #
AP~76,439, that *687 asserts that trial counsel's
mistaken advice regarding parole eligibility
rendered his plea involuntary. We ordered the sub-
sequent application filed and set for submission
After_ applicant filed the subsequent application, he
also filed a suggestion for reconsideration that asks
this Court, on its own motion, to reconsider its de-
cision in Moussazadeh II.

[1][2] This Court, on its own initiative, may re-.
consider a prior denial of habeas corpus relief.
TEX.R.APP. P. 79.2(6). we new reconsider, en our
own initiative, the claim raised in applicant's
second application for writ of habeas corpus, Mous-
sazadeh [[, and grant relief. Applicant's sub-

` sequent application Moussazadeh III, is dismissed.

FNl. App|icant's first application sought
an out-of-time appeal, which we granted.
Ex parte Moussazadeh, No. AP~72,200
(Tex.Crim.App. delivered October 25,
1995) (not designated for publication).
Such an initial application seeking an out-
. of-time appeal does not constitute a chal-
lenge to the conviction and does not bar
subsequent writ applications; Ex parte
McPhersc)n, 32 S.W.3d 860, 861
(Tex.Crim.App.2000).

`In Moussazadeh II, we discussed how applic-
ant, under indictment for a capital murder commit-'
ted on September 12, 1993, pled guilty to the re-
duced offense of murder without a sentencing
agreement Applicant, a juvenile at the time of the
offense, served as “‘look-out” while one of his three
co-defendants shot and killed a man during a rob-
bery. Moi¢s'sazadell II, 64 S.W.3d at_ 406_07. While

4 initially rejecting the state's offer of a guilty plea to
'the lesser offense of murder, ultimately applicant

agreed to plead guilty to murder without a punish-

©'2012 Thomson Reuters. No Claim to Orig. US Gov. Works.

361 S.W.3d 684
(Cite as: 361 S.W.3d 684)

' ment.agreement. 'l`he agreement included applic-
ant's promise to. testify at a co-defendant's trial,
which he did. Id. at 407-09. During thatstestimony,
applicant indicated that he understood that, in
pleading guilty to the murder offense and because
of parole-eligibility laws', he was facing a signific-
antly'lesser term of imprisonment than he` would
have faced if convicted of capital murder. ]d. at
408~09. After the co-defendant's trial ended, ap-
plicant was sentenced to seventy-five¢years' incar-
.ceration without a deadly-weapon finding. Id. at
409. ` ' `

Applicant's claim in his previous writ applica-
tion, which we now reconsider, asserted that
“counsel's gross misadvice regarding parole eligib-
ility rendered applicant's guilty plea involuntary.”
He argued that “the matter of parole eligibility was
implicitly incorporated in [his] plea agreement.” He
also argued that his “guilty plea was involuntary
even if the matter of parole eligibility was not im-
plicitly incorporated in the plea agreement.” We
quote from our opinion irl Moussazadeh']].

It is quite possible that no one i_n this proceed-
ing knew that the parole law had changed dramat-
ically just 11 days before this robbery-murder.
Applicant's parole eligibility is measured by the
law in effect on the date'of the offense Under the
law effective until September 1, 1993, a person
serving a life sentence for capital murder was not
eligible for parole until serving a fiat 35 years.
TEX.CODE CR.IM. PROC. Art. 42.18, § 8(b)(2).
After September l, 19935 that person was not eli-
gible for parole’until serving a fiat 40 years.

TEx.coDE cRIM. PRoc. Art. 42.18, § 8(b)(2)`

(effective Sept. 1, 1993). Under the law effective
until September 1, 1993, a person whose convic-
tion included a deadly weapon finding was not

eligible for parole until he had served a flat one-_`

fourth of'his sentence, up to a maximum of `15

years Tl~;x.coDE callvl. l>Roc. Art. 42.18, §

8(b)(3). After September 1, 1993, a person whose
conviction contained a deadly weapon finding
was required'to-serve a flat one-half *688_of the

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.

Page 5

sentence up to a maximum of 30 years.
TEX.CODE CRIM.,PROC. Art. 42.18, § 8(b)(3)
(effective Sept. 1, 1993). Under the law effective
until September l, 1993, a person convicted of
murder (but whose conviction did not contain a
deadly weapon finding) was eligible for parole
when his good time plus flat time equaled one-
quarter of the csentence up to 15 years.
' TEX.CODEVCRIM. PROC. Art. 42.18, § 8(b)(3).
After September 1,'1993, a person convicted of
murder was not eligible for parole until he had
served one-half of his sentence or 30 years.

TEX.CODE CRIM, PROC. Art. 42.18, § 8(b)(3)

(effective Sept. l, 1993).

The affidavits submitted by both applicant and
his trial counsel with his habeas application state
that they did not know of these statutory changes.
Indeed, we may fairly infer from the record that
the judge, prosecutor, and [the co-defendant's]
counsel shared the same misunderstanding
However, neither trial counsel's nor applicant's
affidavits state that the prosecutor agreed to make
applicant's parole eligibility a term or essential
element of. the plea agreement There is no evid-
ence that the prosecutor ever discussed any spe-
cific term or particular percentage of the sentence
that he believed applicant should or would serve
in return for the prosecutor's dropping the
charges from capital murder to straight murder.
In sum, we are unable to find any evidence-that
p_roves the prosecutor or judge caused applicant
to plead guilty based upon an` incorrect under-

` standing of Texas parole law. [Citation omitted.]

Id. at 409--10.

In Mo_ussazadeh I], we held that a finding that
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 re- ~

cord at the plea hearing, or the written or testimoni-

al evidence submitted by both the prosecution and `

the applicant`in a habeas proceeding Id. at 412. We
were “unable to conclude that_parole eligibility
played any part, implicit or explicit,» in the plea

. U§i §§ '-_i'€“-.

~f»!l eir-’~»'»'r~e"s;§'
A 131 161 i'

/1\,1;»,1'1.1'-;11:-;

  

./ ~i
, tss lmle

   

361 S.W.3d 684
(Cite as: 361 S.W.3d 684)

agreement made between the prosecution and ap-
plicant.” ]cl. at 413. We therefore “den[ied] applic-
ant relief because he failed to` prove, by a pre-
ponderance of th`e evidence, that his plea was in-
duced by a misunderstanding of the applicable pa-
role law which formed an essential element of the
plea agreement.”_la'. Acknowledging our.prior hold-

` ings that,a guilty plea is not rendered involuntary

simply because the defendant received and relied
upon erroneous advice of counsel concerning parole
eligibility, and that both parole eligibility and pa-
role attainment are highly speculative future facts,
we likewise rejected applicant's contention that his
plea was involuntary regardless of whether the pa-
role eligibility misinformation was implicitly incor-
porated into the plea agreement Id. at413~14.

The circumstances surrounding applicant's con-
viction are not in dispute Prior to applicant's plea,
trial counsel advised applicant about his parole eli-
gibility, and that advice was incorrect. As we stated
in Moussuzadeh 1], “The affidavits submitted by
both applicant and his trial counsel with his habeas
application state that they did not know of these
[re_cently effective] statutory changes [in the parole-
eligibility'law]. Indeed, we may fairly infer from

the record that the judge, prosecutor, and counsel ‘

for [the co-defendant against whom applicant testi-
fied] shared the same misunderstanding.” Mous-
sazadeh lI, 64 S.W.3d at 410.

[3][4][5] Counsel's advice can provide assist-
ance so ineffective that it renders a guilty plea in-
voluntary. *689111// v. Loc/chart, 474 U.S.'52, 56,
1106 S.Ct. 366,'88 L.Ed.2d 203 (19855) (quoting Mc:-
ill/farm v. Richcl/'dson, 397 U.S. 759, 771, 90 S.Ct.

_ 1'441, 25 L.Ed.2d 763 (1970); “voluntariness of the

plea depends on whether counsel's advice ‘was

within the range of competence demanded of attor-_
- neys in criminal cases.’ ”). A guilty plea is not
. knowing or voluntary if made as a result of inef-

fective assistance of counsel.£Ex parte Burns, 6011

§S.W.Zd 370, 372 (Tex.Crim.App.1980)",. A`defend-

ant`s decision to plead guilty when based upon erro-
neous advice of counsel is not done voluntarily and

Page 6 n

knowingly. Ex parte Batt/e, 817 S.W.2d 81, 83
(Tex.Crim.App.l991). See also";Ex parte*Ha/'ring-
ten 310 -s.W.3rl 452, 459 1Tex.crim./-\pp.2010)
(“When counsel's representation falls below this [

4Sr)'ickland ] standard, it renders any resulting guilty

plea involuntary.”).

Applicant's initial application contended that
“_counsel‘s gross misadvice regarding parole eligib-
ility rendered applicant's guilty plea involuntary,”
“the matter of parole eligibility was implicitly in-
corporated in [his] plea agreement,” and that his
“plea agreement was involuntary even if the matter
of parole eligibility was not implicitly incorporated
in the plea agreement.” Applicant now asks this
Court to reconsider his application in light of Pn'-
dilla v. Kentt/cky, 559 U.S. -_, 130 S.Ct. 1473,

,176 L.Ed.2d 284 (201§_0), and overrule our previous

decisions in Ex parte Evans, 690 S.W.2d 274
(Tex.Crim.App. 1 985`), and Moussazcldeli II.

The state contends that»Paa'il/a _has no bearing
upon the Court's disposition of applicant's claim_
and that Ex parte Evans and Moussazadeli II are
“still based upon sound logic regarding parole eli-
gibility and parole attainment as being highly spec-
ulative circumstances that does [sic] not render a
guilty plea involuntary.” "

We conclude that both applicant and the state
are partly correct: Paa'illa is not applicable to the
facts before us, and our decisions in _Ex parte Evans
and Mous.sazadeh ll were incorrect. We now dis-
avow our prior decisions in E.r parte Evans and
Moussclzcideh ll to the extent that they (1) require

` parole-eligibility misinformation to form ¢an essen-

tial part of the plea agreement in order to make-a
showing of .an involuntary plea that resulted from
ineffective assistance of counsel,' based upon such
misinformation and _(2) fail to appropriately recog- __
nize the distinction between parole eligibility and
parole attainment

[6] We have previously held that, because of
the extremely speculative nature of parole attain-

_ment, advice from counsel concerning parole does

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.

361 S.W.3d 684
(Cite as: 361 S.W.3d 684)

not render a plea involuntary E)r parte Evans, 690
S.W.2d at 279. However, Evans stated that, because
“eligibility for parole is a fluctual [sic] societal de-
cision; highly subject to change,” id. at 2781§an3ap§;

n ;pli'cant must prove, by a preponderance of the evii:l'-

ence, that>paro`le eligibility was an affirmative part
or essential element of the plea bargain Id.

This is an incorrect statement of the law. While the '

general eligibility rules for parole may change over
time, the\§;e1igibility~rules"remain the same for a'giv;-.`f‘
en conviction L_ikewise, an inmate who was eli-

gible for mandatory release at the time of the of- 7
' fense remains eligible for mandatory release on that

conviction, even if that offense subsequently be-
comes eligible for only discretionary mandatory re- _
lease “The statute in effect when the holding of-
fense is committed determines an inmate's eligibil-
ity for release on mandatory*690 supervision or pa-'

role”§Eac-:pat'tei-Tho)npson, -l73»'18./W.~3d~ 458,l 459 "-

(Tex.Crim.App.ZOO$)`f.-l Evans held that, because pa-
role attainment was speculative, its “legal import-
ance on the subject of voluntariness of a guilty
plea” should be “discounted.” 'Ex parte-Evans, 690
S.W.2d at 279,‘7 Then,_ based on its incorrect state-
ment 0f law, Evans made an erroneous logical leap
and applied the same standard to parole eligibility.
As a_ result, Evans held that erroneous advice as to
either parole eligibility or parole attainment would
not render a plea involuntary. Id 111 Moussazadeh
lI, we further confiated the concepts of eligibility
and attainment

FN2. .See also ”Ex parte Traha_n, 781
§S.W.Zd 291, 292-93 (Tex.Crim.App.1989)
' (written plea memorandum reflected that-
applicant wouldbecome eligible for parole
consideration after having served one-

fourth of sentence; habeas relief available -

when that-was not the law and terms of
w plea_agr_eement were impossible to fulfill).

Although one can determine current parole eli- '

gibility with some degree of certainty, it is really-
parole attainment that is significant to a plea bar-

gaining defendant.' It matters very little that a per- "

Page 7

son is eligible for parole in one year on a ten year
sentence if virtually no one is being paroled in
less than seven or eight years on a ten year sen-
tence; 1t is for this reason that we have termed
parole attainment “too speculative to warrant be-
ing given effect upon" a defendant's guilty plea.
64 vS.W.3d at 413, quoting Ev¢ms, Sttpra.

[7][8][9][10] Contrary to our prior decisions,
there are considerable, concrete distinctions
between parole attainment and parole eligibility.
Parole attainment is indeed highly speculative, due
to various factors associated with circumstances
surrounding an individual prisoner's parole applica-
tion, such as the prisoner's behavior in prison, the
composition and attitude of the parole board, the
identity and attitude of the governor, the population
of the prison system, and regulations governing
“good time.” S€e,Ex.parite Carillo, 687 S.W.2d 320,
325 (Tex.Crim.App.1985) (Miller, J.§ concurring).
The question of parole eligibility, however, elicits a
straightforward answer because an applicant's pa-
role eligibility is determined by the law in effect on
the date of the offense Ex parte Thompson, 173
S.W.3d at 459. The statutes that govern the punish-
ment of a particular offense control the issue of pa-
role eligibility and are not subject to alteration, ab-
sent legislative amendment. Even in lthe event of a
legislative amendment making a law more strin-
gent, an applicant is subject only to the law govem-
ing parole eligibility at the time the offense was
committed. See Ex parte Alegria, 464 S.W.2d 868,

,' 874-75 (Tex.Crim.App.197l'-) (retroactive applica-
tion of parole statute that increased defendant's cu- .
~mulation of years required for parole eligibility vi-
'_olated ex post facto clauses of United States and

Texas Constitutioris). Parole-eligibility require-
ments are direct consequences because they are a
definite and largely automatic result of a guilty

_ plea. See Mitschke v. State,1_29 S. W.3d 130,135_ '
(Tex. Crim. App. 2004): Parole attainment, on the

other hand, is not governed by statute and is gran-
ted at the discretion of the parole board.

FN3. A law that changes the punishment

 

36l‘s.w.3d 684,
(ciie ssi 361 s.w.3d 684)

for a crime after the crime has been com-
mitted is an unconstitutional ex post facto
.:law only if it inflicts a greater punishment
than did the previous law. Ex parte Tate,
471 ` S.W.2d 404, 406

_(Tex.Crim.App.1971) '(op. on reh'g);» Ex .

parte Scott, 471 4 S.W.2d 54, 55-6
(Tex.Crim.App.197l). “[A] statute which
mitigates the rigor of the law_in force§at
the time':`a crime was committed cannot be

regarded as ex post facto with reference to '

that crime” Rooney v. North Dakc)ta, 196
U.S. 319, 325, 25 S.Ct. 264, 49 L.Ed. 494
(1905).

On a claim of involuntary plea, the standard for
the analysis of harm under the` Slric/</and protocol
as expressed in these cases may be stated generally
as “but for the erroneous advice of counsel, the ap-
plicant*691 would not have plead guiltyi” Ex parte
Harringlon, 310 S.W.3d-at 458. See also Ex parte
Moody, 991 S.W.2d 856, 858 (Tex.Crim.App.l999)
' Ex parte Stephenson, 722 S.W.2d 426, 428

a

(Tex.Criin.App.l987).

[1 1] When deciding whether to accept or reject
a plea offer, a defendant will likely consider the ac-
tual minimum amount of time he will spend incar-

cerated. ln order to properly consider his options, a_

defendant needs accurate information about the law
concerning parole eligibility, Although we continue
to recognize the distinction between direct and col-'
lateral consequences, we now hold 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-per-

formance inquiry under Strick/and.

[12] To obtain habeas corpus relief on a claim

.;of involuntary plea, .an..applicant must meet both

prongs_of the Stric/clant/ standard: (l)'counsel's per-

formance "was deficient; and (2) that a probability

exists, sufficient to undermine our confidence in the

result, that the outcome would have been different l
- but for counsel['s] deficient performance.” Ex parte-

Whiie, 160 s.w.3d 46, 49 (Tex.crim.App.20041. ln

Page 8

the context of involuntary plea, the “diffgrent out-
come” is choosing not to plead and instead choos-_
ing to go to trial.

[13][14] Counsel's performance is deficient if it

_ is shown to have fallen below an objective standard "

of reasonableness [d. at 51; Stric/clana' v. Waslting-
ton, 466 U.S. 668, 687-88, 1047 S.Ct. 2052, 80

~L.Ed.Zd 674 (1984). The constitutionally appropri-

ate level of reasonableness is defined byethe prac-
tices and expectations of the legal community and
prevailing professional norms therein Strl`ck/and,
supra, at 688, 104 S.Ct. 2052. In situations lin
which the law is not clear, counsel shouldadvise a
client that pending criminal charges may carry _a
risk of other serious consequences When a serious
consequence is truly clear, however, counsel has an
equally clear duty to give correct advice Both'-fail-
ure to provide correct information and proi/iding in-
correct information violate that duty.

[15] The terms of the relevant parole-eligibility
statute are succinct and clear with respect to the
consequences of a guilty plea. Based upon the date
in which the instant offense was ` committed,
Tex.Code Crim. Proc. art. 42.18'§ 8(b)(3) clearly
and succinctly provided that “a person convicted of
murder was not eligible for parole until he had
served one-half of his sentence or thirty -years.”
Moussazadeh II, supra, at 409. Applicant's counsel
could have easily determined the applicable parole-
eligibility requirements simply by reading the text
of the statute Instead, applicant's counsel failed to

_ inform him of changes in the parole-eligibility stat-

utes that essentially doubled the length of time he
must servelbefore becoming eligible for parole.`The
fact that the amendments took effect only eleven
days before the offense is of no consequence

.FN4. _"P.arole eligibility is.not speculative
ln this case, parole eligibility -was,statutor-
. ily determined and, at the time of the plea,
there was no speculation about those stat-
utory terms. Those terms of parole eligibil-
ity were clear, succinct, and expli'cit. lt ap-
pears that all parties involved ' were _un-

© 2012 Thomson Reuters. No Claim to Orig. US Gov.'Works.

361 S.W.3d 684
(Cite as: 361 S.W.3d 684)

aware that parole eligibility had changed
significantly just a few days before the
commission ofthe alleged offense

. The performance'of applicant's counsel was de- j

ficient: the consequences of applicant's plea could
have been easily determined by reading the applic-

_ able statute Parole-eligibility requirements are pre-
sumptively mandatory, and applicant's trial counsel
provided '-incorrect advice We *692 conclude that
applicant has sufficiently proved that his counsel
was constitutionally deficient

[16] The portion of applicant's sentence that
must`be served before he becomes eligible for pa-
role was doub|e the portion that he was led to be-
lieve he must serve Based on applicant's affidavit
of January 13, 1997, we also conclude that ap-
plicant wbuld not have pled guilty if he had known
the actual time he would have to serve, and thus
prejudice is shown We find that the habeas court's
findings of fact and conclusions of law are suppor-
ted by the record and agree that relief should be
granted

FN5. “I;Iad ‘Judge' Azio§; Mr. Jones, or Mr.
Cogdellij;told`rli§ that a murder conviction
would require me to serve aggravated time
of one-half of my sentence, up to a maxim-
um of 30 years, even without a deadly

weapon finding, I would not have accepted

the plea bargain.”

Accordingly, upon reconsideration we grant
relief. The judgment in this cause is hereby vacated,
andapplicant is remanded to the custody of the
Harris County Sheriff to answer the charges set out
in the indictment The trial court shall issue an ap'-
propriate bench warrant within ten days after the
mandate of this Court issues. Copies of this opinion

. shall be sent to the trial court and to the Texas De-
partment of Criminal Justice,.correctional institu-
tions division l

KELLER; P.J., filed`a concurring opinion MEY-
ERS, 1., did not participate

© 2012 Thomson Reuters. No Claim to Orig.-US Gov. Works. "\:~"1"@`"@

Page 9

KELLER, P.J., concurring.

In overruling Ex parte Eva_ns,FNl 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. The states are not
bound by the Teague rule and may afford retroact-
ive effect on collateral review~in situations not al-
lowed under Teague. Nevertheless, with re-
spect to the new Confrontation Clause holding ar-
ticulated in Cravvford v. Washington, b we ap-
plied the rule in Teague to bar retroactive applica-
tion on habeas corpus. The Court does not con-
duct a retroactivity analysis in this case, and I do
not know its reason for making the new rule retro-
active._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 exceptionsrarticulated in
Teague or state-created_apply in the present case?
1fthe 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 retro-
activity jurisprudence

FNl. 690 S.W.2d 274
(Tex.Crim.App. 1_985).

FNZ. Teagt/e v. Lane, 489 U.S. 288, 109_
S.Ct. 1060, 103 L.Ed.2d 334 (1989).

FN3. Danforth v. Minne`sota, 552 U.S. 264,
128 S.Ct. 1029, 169 L.Ed.2d 859 (2008);
Ex parte Lave, -257 S.W.3d 235, 237 & n.
. 15_ (Tex.Crim._App.2008).

" FN4. 541 'U.S. 36, 124 ~S.Ct.`-l354, 158
L'.Ed.Zd 177'(2004). '

FN5. Lave, 257 S.W.3d at 237; Ex parte
'Keith, 202 S.W.3d . 767
(Tex.Crim.App.2006).

There is an easier way to resolve this case,

1 During the plea colloquy, the trial judge was pre-_

' pared to make a deadly -weapon finding, but the

" eli a €.
l"=!le~rc,a==:ii~r fe

'~/-`\`r;ilit~;rnt=., ` ,' `

  
  
 

361 s.w.3d 684

,(Cite as: 361 S.W.3d 684)

- 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 agree-
ment This explanation was consistent with the
parties agreeing *693 that applicant would have his
chance, after cooperating with the State, to per-
suade the trial judge to make \his ' time
“non-aggravated,” i.e.- subject to more generous pa-
role-eligibility rules available to non-3g offenses
But less than two weeks beforeth>e offense had
been committed, the law had changed to treat
murder as an “aggravated” offense for parole-
eligibility purposes, regardless of whether there
was a deadly-weapon finding 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.” The habeas judge
recommended that applicant be granted a new trial.

FN6. See Ex parte Moussazadeh, 64
s.w.'36 404, 408 (Tex.crim.App.zool).

FN7. see TEx.coDE cRIlvl. PRoc, erl.
42.12 § sg; TEx. Gov'r cooE §
508.145(6).

FN8. Moussazadeh, 64 S.W.3d at 409.

FN9. The habeas judge also found that ap-
pellant would not have pleaded guilty ab-
sent the misinformation `

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 eligibilirty]¥voas an
essential element of the plea bargain.” We
cited no authority for this “inference-stacking”
holding, vand thus it does not appear to be
based upon an established.rule that we would have

Page 10

to change Moreover, with regard to the advice giv-
en in Evans, we said in that case:

FN10. Id. at413.
FNll. Seeid.

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 elev-
date this common practice to the status of an ele-
ment of the plea bargain without some further in-
dication from the record evidencing that status.
We conclude,'then, that we are not dealing with a
broken or impossible plea bargain situation 2

a

FN12. 690 S.W.2d at 277.

Unlike in Evans, there was overt sanctioning of
the attorney's advice`by the judge and the prosec-
utor, or at least the habeas court`could so rationally
conclude, as it has done Thus, we simply misana-
lyzed the issue under Evans, and it is appropriate
for us to reconsider the issue now.'

4 '$

v 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 irl addressing the sufficiency of the
evidence to support a conviction

FN13_.§1Hooper v. State, 214 S.W.3d 9,
16.-`17 (Tcx.Crim.App.2007). If it were ne- l
cessary to decide whether Hoopet"s'pro-_
nouncement regarding inference stacking '
constituted a_ new _rule under _Teague, _I
would hold that it doesnot, because, re-
gardless of the scope offl`exas's version of,,
Teague's proscription against announcing
new constitutional rules of criminal pro- '
cedure on habeas, see Danfot'llt, supra,
such `a proscription cannot apply to basic

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.

 

361 S.W.3d 684
(Cite as: 361 S.W.3d 684)

standards of habeas practice Otherwise a
court could never change its procedures or
standards on habeas.

Finally, 1 would not hold, as the Court appears
to do, that the simple failure to *694 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 con-
vey this type of information he must do so cor-
rectly. Here, the information was incorrect.

FN14. “Both failure to provide correct in-
formation and providing incorrect informa-
tion violate that duty[.]” Court's opinion at
691.

Although 1 agree that applicant is entitled to a
new trial, I do not join the Court's opinion 1 concur
in the Court's judgment '

Tex.Crim._App.,2012.'
Ex Parte Moussazadeh
361 S.W.3d 684

` END or DocUlleNT

 
 

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.

-Page 11

.1‘_._

No. ND 5591 (Single Count) TRN 010 107 3208

THE STATE OF TEXAS 1
v. ~
JAMES ALLEN PELLOAT,
DEFENDANT ' '
§LIQ: TX

r'il_El) ron tercero
2115 1118 211 l=> 2132

IN THE 1-A JUDICIAL [PEE ALL§Fu,
DlsTRlcT coURT or;r."is$,-»le T `

NEwToN coUNTY; :

     

      
 

JUDGl\/IENT OF CONVICTION BY COURT;
SENTENCE TO Institutio,nal Division. TDCJ

DArl-: oF JUDGMENT;
JUDGE-PRl-:sll)lNG:

ArroRNEY FoR THE srATE;
ATTORNEY ron THE DEFl-:NDANT:
LEE_I\_TB

STATUTE FOR OFFENSEZ

_ DEGREE OF OFFENSE:
APPLlCABLE PUNISHMENT RANGE
fincluding enhancements, if any):

DATE OF OFFENSEI

CHARG[NG INSTRUMENT:

TERMS OF PLEA AGREEMENT

le DETAIL):

 

PLEA TO OFFENSE:

PLEA TO ENHANCEMENT

' PARAGRAPH§ S):

VERDICT FOR OFFENSE:
FINDING ON ENHANCEMENT:
AFFIRMATIVE FINDING ON DEADLY
WEAPON:

OTHER AFFIRMA'I`IVE SPECIAL
M

DATE SENTENCE IMPOSED:
PUNISHMENT AND PLACE OF
CONFINEMENT:

 

 

 

TIME CREDITED TO SENTENCE:

March 24, 2005

Monte D. Lawlis

A. W Davis, Jr.

William S. Morian, Jr.

lmproper Relationship Between an Educator and a
Student

Section 21.12, Penal Code

Second Degree Felony

Second Degree 2-20 yrs in prison/max $10,000 fine
On or about November 7, 2004.
Indictment

James Allen Pelloat will plead guilty to the following&:(cascs,
all 2'“1 Degree Felonies: No. ND-599l, lmproper Relationship
(21.12 P.C.); N.D~§SS%,-Smrat-Assa-ult-(BHI'|'P¢€-')? ND-5593,
Sexual Assault (21.011 P.C.); ND-5594 lmproper Relationship
(21.12 P.C.); and ND-56l7 Sexual Assault (21.011 P.C.),
reduced from Aggravated Sexual Assault (22.021 P.C.). Case
No. ND-5618, lmproper Relationshlp (2\.|2 P.C.) will be
dismissed. The defendant will receive a sentence of twenty
(20) years on each of the Mrcases, with the sentence in case '
No. ND-S992 and the sentence in c}se No. ND-5617 to run
consecutively. The sentences in the remaining cases are
to run concurrently. Defendant will receive credit for time
served in the Newton County Jai| in the amount of 138 days.

Guilty

Not Applicable
Guilty
Not Applicable

Not Applicable

Not Applicable
March 24, 2005

Twenty (20) years in the
Institutional Division_-TDCJ, and §§ fine
138 days

DSZ: Judgmcnt of Conviclion by Coun; Direct Sentcncc, Cause No. ND 5591; Page 1 of 3 Pach

 

 

No. ND 5593 (Single Count) TRN 010 107 3208

§ IN THE 1-A IUDICIAL§
§ DISTRICT CoURT §§F 1'~.
§ NEWTON cOUNW;~rE

THE sTATE OF TEXAS
v. y
JAMES ALLEN PELLOAT,
DEFENDA~NT

s_n;: Tx‘

 

FILED FOR RECORG

2005 wm 2a :=> 2= 33

"""'E L.'__'_EH
.\\ICT LEH,‘{
le)`L;

   
  
 

      
 

JUDGI\/IENT OF CONVICTION BY COURT§
SENTENCE TO Institutional Division. TDCJ

DATE OF JUDGMENT:

JUDGE PRESIDING:

ATTORNEY FOR THE STATE:
ATFORNEY FOR THE DEFENDANTI
OFFENSE:

STATUTE FOR OFFENSE:

DEGREE 'OF OFFENSE:
APPLICABLE PUNISHMENT RANGE
(including enhancements, ifany)!

DA'I'E OF OFFENSE:

CHARGING INSTRUMENL

TERMS OF FLEA AGREEMENT

§IN DE'I`AIL[:

 

 

 

 

, PLEA To 0FFENSE:

PLEA To ENHANCEMENT
PARAGRAPH(s):

vERDIcT FOR OFFENSE:
Fn\JDING ON ENHANCEMENT:
AFFIRMATIVE FINDING 0N DEADLY
wEAPON:

OTHER AFFIRMATIVE sPEcIAL
FINDINGS;

DATE sENTENCE IMPOSED:
PUleHMENT AND PLACE 01=
coNFIN)§MENT:

 

 

 

 

TIME CREDITED TO SENTENCE:
COURT COSTS:

March 24, 2005

Monte D. Lawlis

A. W Davis, Jr.

William S, Morian, Jr.
Sexual Assault

Section 22.011, Penal Code
S_econd Degree Felony

Second Degree 2-20 yrs in prison/max 510,000 line
November 7, 2004 .
indictment

' §§
James Allen Pelloat will plead guilty to the following cases,
all 2"" Degree Felonies: No. ND-5991, lmproper Relationship
(21.12 P.C.); ND-5593,
Sexual Assault (21.011 P.C.); ND-5594 lmproper Relationship
(21.12 P.C.); and ND~5617 Sexual Assault (21.011 P.C.),
reduced from Aggravated Sexual Assault (22.021 P.C.). Case
No. ND-5618, lmproper Relationship (21.12 P.C.) will he
dismissed. The defendant will receive a sentence of twenty
(20) years on each of the ‘cases, with the sentence in case
No. ND-5992 and the sentence in case No. ND-5617 to run
consecutively. The sentences in the remaining cases are
to run concurrently. Defendant will receive credit for time

' served in the Newton County Jail in the amount of 138 days

Guilty

Not App|icable '
Guilty l s
Not Applicable

Not Applicable

Not Applicable
March 24, 2005

Twenty (20) years in the

Institutional Division-TDCJ, and M fine
138 days

None

DSZ: Judgmenl ofConviction by Court; Direct Sentence, Cause No. ND 5593; Page l of 3 Pages

 

 

No. ND 5594 (Single Count)`TRN 010 107 3208

THE STATE OF TEXAS
v.
JAl\/fES-ALLEN PELLOAT,
DEFENDANT

SI_D: TX

 

F'iLED'FoR REcoRn
2005 141qu F> 2= 33

IN THE 1-A JUDICIAL
DISTRICT coURT OF.-; ,~ '
NEWTO_N coUNTY, m

  
  

JUDGMENT OF CONVICTION BY COURT;

SENTENCE TO Instit'utional Division, TDCJ

DATE OF JUDGMENT:

JUDGE PRESIDING:

AT'I`ORNEY FOR THE STATE:

_ 1 ATTORNEY FOR THE DEFENDANT:
OFFENSE:

 

STATUTE FOR OFFENSE!

DEGREE OF OFFENSE:
APPLICABLE PUNISHMENT RANGE
fincluding enhancements, if any):

. DATE OF OFFENSE:

CHARGING INSTRUMENT:

TERMS OF PLEA AGREEMENT

§le DETAIL[:

 

 

 

PLEA To oFFENsE;

,PLEA To ENHANCEMENT

».. . PARAGRAPH($):
vERDICT FOR 0FFENSE:

~ FINDING 0N ENHANCEMENT:
AFFIRMAHVE FINDING 0N DEADLY
' wEAPON:
0THER AFFIRMATIVE sPEcIAL
FmDINGS:

DATE SENTENCE IMPOSED;
PUNISHMENT AND PLACE OF
CONFINEMENT;

 

 

 

 

 

TIME cREDITED`To sENTENcE;

March 24, 2005

Monte D. Lawlis

A. W Davis, Jr.

William'S. Morian, Jr.

lmproper Relationship Between an Educator and
Student

Section 21.12, Penal Code

Second Degree Felony

Second Degree 2-20 yrs in prison/max $10,000 fine
On or about November 7, 2004.
Indictment

\’

James Allen Pelloat will plead guilty to the following& cases,
all 2"‘ Degree Felonies: No. ND~5991, lmproper Relationshlp
(21.12 P.C.); t (21.011 P.C.); ND-5593,
Sexual.Assau|t (21.011 P.C.); ND-559_4 lmproper Relationship
(21.12 P.C.); and ND5617 Sexual Assault (21.011 P.C.),
reduced from Aggravated Sexual Assault (22.021 P.C.). Case
No. ND-5618, lmproper Relationshlp (21.12 P.C.) will be
dismissed. The defendant will receive a sentence of twenty
(20) years on each of the “gases, with the sentence in case
No. ND-S992 and the sentence in case No. ND-56l7 to run
consecutively. The sentences in the remaining cases are
to run concurrently. Defendant will receive credit for time
served in the Newton County Jail in the amount of 138 days.

Guilty

Not Applicable
Guilty
Not Applicable

Not App|icable

Not Applicable
March 24, 2005

Twenty (2_0) years in the
Institutional Division-TDCJ, and §_o fine
138 days

' DSZ; Judgmenl ofConviction by Coun; Direct Sentence, Cause No. ND 5594; Page 1 of 3 Pagei

111

 

NQR-23-@6 11:58 l:ii"| DISTRICT CLERK

No. ND 5617 (Single comm TRN 010 107 3208

THE sTATE or TEXAS §
V. _
JAMES ALLEN P.ELLGAT, §
DEFENDANT

M)_: TX

§ _

499 379 9@8?. vi'-".@2

F|LED FOR RECORD

2051/1920 13 z 32
DISTRICT COURT 0151'-/11111€111111 '

13
NEWTON COUNTY;;THY_§A_ y 1_,_

JUDGMENT OF CONVICTION BY COURT;

SENTENCE TO lustiwcional Division, TDCJ

~ Q`ATEOF 11 LDQMEM;

11 IDQE PRESIDING:

ATTORNEY FOR THE STATE:

TTORNEY R THE DEF T:

' 4 ` OFFENSE: '

STATUTE FOR' OFFENSE:
E REE FENSE:

D_G_Q£_QE____
AFPLchBLE PUNL§ HMENT RANGE

'nciu ' '

l DATE or 0FFENSE§
cHAggING INSTRUMENT;

TERMS.OF PLEA AGREEMENT
' 1IN DETML):`

' _ consecutively. The sentences in the

. PLEA T ENSE:

' .
ELEA TQ ENHANCEMENT

FARAGRAPH S :
V ICTF R FF SE:

FINDIN oN ENH T:

__Q__AM;EM_EL
AFFIRMATI}/_§ FlNDmg on Q§ADLY

_ wEAPON:

organ AFF;BMATIVE SPECIAL
EIM

DATE §ENTENCE IMPQ§§Q~,
PUNISHMENT AND.PLACE or

v oNFINEMENr: _
T;M_E_ cREDITED To §ENIEECE:

COURT COSTS:

 

March 24, 2005 v

Monte D. Lawlis

A. W Davis, Jr. v

Wiiliam S. Morian, Jr;
Sexual Assault

Section 22.011, Penal Code
Second Degree Felony

Second Degree 2-20 yrs in prison/max $10,000 i“me
On or about May 01, 2002.
Indictment

James Allen Pelloat will plead guilty to the following-110g crases,
all 2"d Degree Felon|es: No. ND-5991, improper Relationship'
(21.12 P.C.); _ , ND'-5593.j
Sexual Assault (21.011 P.C.); ND-5594 improper Relationship_
(21.12 P.C.); and ND-56l7 Sexual Assault (21.011 P.C.),
reduced from Aggravated Sexual Assault (22.021‘P.C.). Case
No. ND-5618, improper Relationshlp (21.12 P.C.).wiii be
dismissed. Th_e defendant wi'l} receive a sentence of twenty
(20) years on each of thei£¥$ cascs, with the sentence in case
No. ND-5992 and the Sentence in c e No. ND-5617 to run
remaining cases are'
to run concurrently. Defendant will receive credit for time
served in the Newton County Jail in the amount of 138 daysl

Guilty

Nml Appli¢able
Guilty

4 Not Applicable

Not Applicabie

Not Applicabie
March 24, 2005

'Ier_nty (20) years in the '
Institutional Division-TDCJ, and 1313 fine
138 days , l
None -

DSZ: Judgmcnt'of Conviciion by Coun; Direct Sentence, Cause No. ND 5617; Page 1 nfl Pag¢s l

