                                                           WR-82,154-01
                                            COURT OF CRIMINAL APPEALS
                                                             AUSTIN, TEXAS
                                            Transmitted 5/26/2015 2:57:04 PM
                                              Accepted 5/27/2015 9:02:29 AM
             WR-82,154-01                                     ABEL ACOSTA
                                                                      CLERK

                                                RECEIVED
IN THE COURT OF CRIMINAL APPEALS COURT OF CRIMINAL APPEALS
                                                5/27/2015
      OF THE STATE OF TEXAS                ABEL ACOSTA, CLERK




  Ex parte KENITH ROBERT EVANS




    Petitioner’s Motion for Rehearing
 of Application of Writ of Habeas Corpus




         JASON D. CASSEL
        Bar Number: 24006970
           jdc@emafirm.com
       ALBRITTON LAW FIRM
             P.O. Box 2649
        Longview, Texas 75606
    Phone Number: (903) 758-5200
   Facsimile Number: (903) 758-7397
                                   WR-82,154-01
                    IN THE COURT OF CRIMINAL APPEALS
                           OF THE STATE OF TEXAS


Ex parte KENITH ROBERT EVANS


                   APPLICANT’S MOTION FOR REHEARING


TO THE HONORABLE COURT OF CRIMINAL APPEALS:
      Comes now the Applicant, by and through his Attorney, Jason D. Cassel, and

respectfully submits to the Court his Motion for Rehearing in the above entitled and

numbered cause.


                           GROUND FOR REHEARING
      The Court dismissed the Application for Writ of Habeas Corpus stating the

sentence has been discharged, citing Ex parte Harrington, 310 S.W.3d 452 (Tex.

Crim. App. 2010). However, Applicant is still confined for purposes of Article 11.07

as this conviction is being used as an enhancement of a case now pending.


                            Argument and Authorities
      This Court dismissed Applicant’s Writ of Habeas Corpus stating the sentence

had been discharged.      However, Applicant is still under disability for this

conviction.


      While it is true that Mr. Evans’ 4 year sentence in this cause has been

discharged, he continues to suffer collateral consequences from the conviction.

First, in WR-82,154-02, trial counsel filed an affidavit, which is also part of the
record in this cause, stating that he’s sure that if he recommended Mr. Evans accept

a 20 year sentence, “he must have been looking at a minimum sentence of 25 years

had he gone to trial.” CR-51, Affidavit of Steve Kattner. Additionally, Mr. Evans is

currently under indictment in Gregg County Cause 42,357-B where the conviction

at issue here is being used as a felony enhancement, making the punishment range

25-99 years or Life. See CR-181, Trial Court’s Findings of Fact and Conclusions of

Law.


       In Harrington, the applicant was convicted of felony DWI and had discharged

the sentence but because he faced “collateral consequences,” such as “enhanced

penalties should he be charged and convicted of a subsequent felony offense,” he

was still confined for purposes of Article 11.07 review. This is precisely the case

here, but rather than hypothetical harm that “should he be charged with a

subsequent felony,” Mr. Evans is charged with a subsequent felony where this

conviction is alleged in the indictment of Cause 42,357-B to enhance punishment.

CR-181. Furthermore, Mr. Evans is serving a 20 year sentence from 2001 where

trial counsel states “he must have” believed that Mr. Evans was facing punishment

of 25-99 or life if he had gone to trial. This position relies on the validity of this

conviction. Thus, the use of the this conviction caused trial counsel to recommend

Mr. Evans accept a maximum 20 year sentence and is being used again, this time

as an actual enhancement in Gregg County Cause 42,357-B.
      Accordingly, the Mr. Evans is confined and entitled to review under Article

11.07. The Court should grant Mr. Evan’s motion for rehearing and address the

issues raised in the application for writ of habeas corpus.


                                          PRAYER


      WHEREFORE, Applicant prays that the motion for rehearing be granted.


                                        RESPECTFULLY SUBMITTED,




                                        __________________________
                                        JASON D. CASSEL
                                        Bar Number: 24006970
                                        jdc@emafirm.com
                                        ALBRITTON LAW FIRM
                                        P.O. Box 2649
                                        Longview, Texas 75606
                                        Phone Number: (903) 758-5200
                                        Facsimile Number: (903) 758-7397


                            CERTIFICATE OF COMPLIANCE


       The undersigned certifies that according to the Microsoft Word word count
tool this document contains 516 words.




                                       ___________________________
                                       Jason D. Cassel
                      CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the above and foregoing
document has been hand delivered to the Gregg County District Attorney’s
Office, on this the __26th___ day of __May____________, 2015.




                             ___________________________
                             Jason D. Cassel
