             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

       A LCALA, J., announced the judgment of the Court and delivered an opinion in
which M EYERS, J OHNSON, and R ICHARDSON, JJ., joined. Y EARY, J., filed a concurring
opinion. K EASLER, J., filed a dissenting opinion in which H ERVEY and N EWELL, JJ.,
joined. K ELLER, P.J., concurred in the judgment.

                                       OPINION

       Alesha Dean, applicant, contends in her application for a post-conviction writ of

habeas corpus that her plea of guilty was rendered involuntary due to ineffective assistance

of counsel. In particular, applicant alleges that her attorney performed deficiently by

advising her that the offense to which she pleaded guilty, first-degree injury to a child by

omission, was not classified as an “aggravated” offense for purposes of determining her

parole eligibility and, thus, that she would not have to serve one-half of the calendar time of
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her sentence before she would become eligible for parole. Applicant further contends that,

but for counsel’s incorrect advice regarding this matter, she would not have pleaded guilty.

The habeas court has made findings of fact and conclusions of law recommending that this

Court grant relief. Although the basis for our conclusion is different from the one relied

upon by the habeas court, we agree with the habeas court’s ultimate determination that

applicant is entitled to relief. We conclude that the record establishes that applicant’s

attorney misadvised her regarding her statutory parole eligibility and that, but for counsel’s

misadvice, applicant would not have pleaded guilty. Furthermore, because the record reveals

that the matter of applicant’s parole eligibility rose to the level of an element of the plea

bargain, we conclude that applicant is entitled to relief under this Court’s longstanding

precedent that permits the granting of relief under these circumstances. We explain each of

these conclusions in turn below.

                                    I. Factual Background

       In 2009, applicant was indicted for first-degree injury to a child by omission. In 2011,

pursuant to a plea bargain with the State, applicant entered a plea of guilty to the offense, and

the trial court sentenced her to twenty-five years’ imprisonment. Applicant did not appeal

her conviction or sentence.

       Applicant contends that, at the time that she pleaded guilty to the offense, she was

advised by her trial attorney that the offense would not be classified as a “3g,” or aggravated,

offense. See T EX. C ODE C RIM. P ROC. art. 42.12, § 3g(a)(1)(I). Advice that her offense was
                                                                                      Dean - 3

not classified as a 3g or aggravated offense would be incorrect because, pursuant to Article

42.12, first-degree injury to a child by omission is classified as an aggravated offense. See

id. The classification of the offense as aggravated is important because it dictates that

applicant will be required to serve one-half of her sentence before she can be considered for

parole. See T EX. G OV’T C ODE § 508.145(d)(1). Section 508.145(d) of the Government Code

provides that a person convicted of first-degree injury to a child “is not eligible for release

on parole until the inmate’s actual calendar time served, without consideration of good

conduct time, equals one-half of the sentence or 30 calendar years, whichever is less, but in

no event is the inmate eligible for release on parole in less than two calendar years.” Id. For

offenses not classified as aggravated, aside from several other exceptions not relevant here,

the Government Code provides that an inmate is eligible for release on parole “when the

inmate’s actual calendar time served plus good conduct time equals one-fourth of the

sentence imposed or 15 years, whichever is less.” Id. § 508.145(f). Thus, here, advice that

applicant would not have to serve aggravated time would be incorrect under the statutory

provisions that require her to serve half of her sentence, or twelve-and-a-half years, without

consideration of good-conduct time, before she may be considered for parole. See id. §

508.145(d)(1), (f).

       In 2013, applicant filed an application for a post-conviction writ of habeas corpus in

which she challenged the voluntariness of her guilty plea based on counsel’s misadvice
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regarding her statutory parole eligibility.1 After the habeas court forwarded the application,

this Court remanded the case for further factual development. The habeas court held a live

evidentiary hearing on applicant’s claim at which applicant’s trial attorney, applicant, and

two of applicant’s family members testified.

       At the hearing, trial counsel testified inconsistently with respect to whether he had

advised applicant that the offense was an aggravated offense, but he ultimately

acknowledged that, during the actual plea proceedings, he represented to the trial-court judge

and to applicant that the offense was not an aggravated offense. On the one hand, applicant’s

trial attorney claimed that he told applicant “not to count on getting out early.” He contends

that he told her that the “statute required her to serve one-half of any sentence she received.”

On the other hand, trial counsel also told applicant that he believed that her offense should

not be classified as an aggravated, or “3g,” offense because the offense was based on an

omission rather than an overt act and there was no deadly-weapon finding. Under that

theory, counsel told applicant that, if the statute was interpreted “correctly” in his opinion,

then “she could be out sooner” than the mandatory aggravated time. In any event, counsel



1
        We note that, prior to the instant application, applicant filed another application in which she
contended that her offense had been “misclassified for purposes of parole eligibility.” Applicant was
represented in that prior writ proceeding by the same attorney who had represented her in the plea
proceedings. That prior application was denied by this Court in February 2013. Although the
present application is technically applicant’s second writ application, because the prior application
did not challenge applicant’s conviction or her sentence but merely alleged that she was improperly
being subjected to aggravated time, the present application does not constitute a subsequent writ
under Article 11.07, and thus it is properly considered on its merits. See TEX . CODE CRIM . PROC.
art. 11.07, § 4.
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acknowledged that, at applicant’s plea hearing, the trial court had asked him if this was a

“3g” offense, and counsel responded, “It is not, Your Honor.”

       Applicant and two of her family members also testified at the habeas hearing.

Applicant stated in her testimony that she had discussed the matter of her parole eligibility

with trial counsel several times and, on each occasion, he told her that she would be “eligible

[for parole] between two and four years after starting my time because it would include my

back time and everything I already served in the County.” She further stated that trial

counsel told her that this was not an aggravated offense, that she relied on counsel’s advice

in deciding whether to plead guilty, and that, but for counsel’s erroneous advice, she would

not have pleaded guilty and would have pursued a trial. Applicant’s testimony as to these

matters was echoed by the testimony of her half-sister and father, both of whom indicated

that they had been present during meetings between counsel and applicant, and both of whom

testified that counsel had told applicant that she would become eligible for parole in around

two to four years.

       In its findings of fact and conclusions of law, the habeas court found that injury to a

child by omission is a “3g” offense, that trial counsel’s testimony was “contradictory” as to

whether he was aware of this fact and what advice he gave applicant, and that applicant’s

testimony was credible. With particular respect to the contradictory testimony of counsel,

the habeas court observed that, although counsel claimed that he was aware at the time of

applicant’s guilty plea that the offense would be classified as aggravated and advised
                                                                                        Dean - 6

applicant accordingly, he also filed a post-conviction writ application on applicant’s behalf

after that point claiming that the offense was a non-aggravated felony and had been

“misclassified” for purposes of determining applicant’s parole eligibility. The habeas court

additionally took note of counsel’s testimony at the hearing admitting that he had been

“surprised” to learn that applicant’s offense was being treated as an aggravated felony. With

respect to this testimony, the habeas court stated, “It makes no sense that [applicant’s

counsel] was surprised that the Texas Department of Criminal Justice correctly followed the

law.” The habeas court further found conflicting counsel’s assertions that he had told

applicant that she should not expect to get out “one minute sooner than her entire sentence,”

but also represented that he had told applicant that, if the statute was interpreted correctly in

his view, then she could “get out on parole much sooner.”

       In accordance with its fact findings, the habeas court concluded that applicant was

entitled to relief. As the basis for its recommendation, it relied upon this Court’s decision

in Ex parte Moussazadeh, in which this Court held that trial counsel’s misinformation to a

defendant regarding his or her parole eligibility constituted deficient performance under

Strickland v. Washington, 466 U.S. 668 (1984). See 361 S.W.3d 684, 690-91 (Tex. Crim.

App. 2012) (“Moussazadeh III”). The habeas court determined that counsel’s performance

was deficient, noting that, here, “counsel’s misadvice more than tripled the length of time

Applicant would have to serve before becoming parole eligible.”              Further, given its

determination that applicant was credible in stating that, but for counsel’s misadvice, she
                                                                                      Dean - 7

would have rejected the plea offer and taken her case to trial, the habeas court concluded that

applicant had adequately demonstrated that she was prejudiced as a result of counsel’s error.

The habeas court recommended that this Court grant relief.

       After remand, this Court filed and set applicant’s case to determine whether applicant

should be granted relief from her guilty plea on the basis of counsel’s misadvice regarding

her statutory parole eligibility.

                                        II. Analysis

       We determine that the habeas court’s factual findings are supported by the record and

we will defer to them. See Ex parte Reed, 271 S.W.3d 698, 727 (Tex. Crim. App. 2008).

Thus, our analysis is limited to determining whether, accepting those facts as true, applicant

is entitled to relief under these circumstances. Although we agree with the habeas court’s

recommendation that relief be granted, we, unlike the habeas court, do not reach that

conclusion based on this Court’s decision in Moussazadeh III, which arguably does not apply

to applicant’s case because it was decided after her conviction became final and, thus,

applying it here might constitute an improper retroactive application of the law. See

Moussazadeh III, 361 S.W.3d at 691-92. Instead, we conclude that applicant is entitled to

habeas relief by applying the longstanding pertinent rule in Ex parte Young, as modified by

Ex parte Evans, that permits habeas relief for an involuntary plea based on evidence that a

defendant was grossly misinformed about her parole eligibility date, that the misinformation

significantly influenced her in her decision to plead guilty to the offense, and that the
                                                                                      Dean - 8

misinformation rose to the level of an element of the plea bargain. See Ex parte Young, 644

S.W.2d 3, 5 (Tex. Crim. App. 1983); Ex parte Evans, 690 S.W.2d 274, 279 (Tex. Crim. App.

1985). Thus, because we assume without deciding that Moussazadeh III does not apply

retroactively to applicant’s case, we apply Young and Evans as the law in effect at the time

of applicant’s guilty plea, and we conclude that applicant is entitled to habeas relief under

the rule of those cases. See Moussazadeh III, 361 S.W.3d at 690-91; Evans, 690 S.W.2d at

279; Young, 644 S.W.2d at 5.

       This Court has long recognized that incorrect advice from counsel regarding a

defendant’s parole eligibility can render a guilty plea involuntary. More than thirty years ago

in Young, this Court held that, “if [a] defendant is grossly misinformed about his parole

eligibility date by his attorney, and the defendant relies upon that misinformation to the

extent that it induces him to plead guilty or nolo contendere, his plea may be rendered

involuntary.” Young, 644 S.W.2d at 5. In Young, the defendant was charged with two counts

of aggravated robbery, and he agreed to a plea bargain with the State by which he received

two concurrent fifteen-year sentences. Id. at 3. Prior to pleading guilty, Young’s attorney

told him that he would be required to serve three years before he would become eligible for

parole, when in fact it would be five years. Id. at 3-4. In particular, Young’s attorney

erroneously advised him that, so long as the judgment did not contain an affirmative deadly-

weapon finding, Young would be eligible for “early parole.” Id. at 4. In granting relief on

Young’s claim that his plea was rendered involuntary as a result of counsel’s misadvice, this
                                                                                       Dean - 9

Court explained that, “[a]lthough it is only natural for an individual pleading guilty to a

felony to be concerned over his future parole date, where the plea is based upon a promise,

such promise may render the plea of guilty involuntary.” Id. at 5. With respect to the

particular facts in Young, this Court further observed that, “[b]y implication, from the record,

the trial court [judge] 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.” Id. at

4. Given these facts, the Court held that Young had met his burden of “convincingly

demonstrating that the misinformation significantly influenced him in deciding to plead

guilty,” and it granted relief. Id. at 5.

       Shortly after Young was decided, this Court modified the rule of that case in Ex parte

Evans by clarifying that, in order to obtain relief from a guilty plea on the basis of counsel’s

misadvice regarding parole eligibility, a defendant must additionally show that the matter of

parole eligibility rose to the level of an element of the plea bargain. See 690 S.W.2d at 279.

In Evans, this Court considered a situation in which Evans’s attorney had misadvised him

that his good-conduct time would be taken into consideration in calculating his parole-

eligibility date. Id. at 275. In rejecting the habeas court’s recommendation that Evans be

granted relief, this Court observed that “[n]o 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.” Id. at 277. This Court further explained that, “without some further indication

from the record evidencing” the status of parole eligibility as an element of the plea bargain,
                                                                                      Dean - 10

it would not permit relief under these circumstances “simply because [a defendant’s] attorney

relayed erroneous parole eligibility advice upon which [a defendant] relied, at least in part,

in pleading guilty.” Id. at 277-78. It continued, “If [a defendant’s] understanding of his

parole eligibility is manifested as an affirmative part of the plea bargain and that

understanding is relied on as an essential part of the quid pro quo for pleading guilty, then

[his] plea is involuntary if that part of the plea bargain is not or cannot be carried out. This

is so because of a defect in the plea bargain, however, not because of [the defendant’s]

misunderstanding per se.” Id. at 279. The rationale underlying this Court’s holding in Evans

was that matters regarding parole eligibility and attainment were too speculative to form the

basis for an involuntary-plea claim, absent some indication that the defendant’s

misunderstanding of his parole eligibility was an affirmative part of the plea bargain, which

would render the situation a “broken or impossible plea bargain.” Id.

       In seeking to harmonize its reasoning in Evans with its holding in Young, the Evans

Court explained that, in Young, a key component of its analysis was its observation that the

trial court had “also labored under [a] misunderstanding of the law,” as was implicitly shown

by the trial court’s actions in that case indicating its understanding that Young would not be

required to serve aggravated time. See id. (citing Young, 644 S.W.2d at 4). This fact, the

Evans Court explained, signified that Young’s “understanding of parole eligibility was . . .

elevated to the status of an element of the plea bargain,” and, “since this element was not

kept,” the plea was rendered involuntary. Id. In sum, as a result of this Court’s reasoning in
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Evans, the initial rule of Young remained intact, but with a modification: In order to be

entitled to relief on the basis of an involuntary plea under these circumstances, the defendant

would be required to show not only that he was grossly misadvised as to his parole eligibility

and that he was induced to plead guilty as a result of that misadvice, but he would also be

required to point to some affirmative evidence in the record showing that his

misunderstanding was elevated to the status of an element of the plea bargain. See id.2

       Here, applicant’s evidence is adequate to satisfy the Young standard as it was modified

in Evans, and it is this law upon which we rely in determining that applicant is entitled to

relief. The record supports the habeas court’s finding that trial counsel misadvised applicant

that she would be eligible for parole in no more than four years, when in fact she would not

become eligible for parole for more than twelve years. The record further supports the

habeas court’s determination that applicant was credible in indicating that, but for counsel’s

erroneous advice, she would not have entered into the plea bargain, and, thus, she has

adequately demonstrated that she relied upon counsel’s erroneous advice to such a degree

that it induced her to plead guilty. Applicant’s evidence, therefore, meets the requirements

for proving an involuntary-plea claim as set forth in Young. See Young, 644 S.W.2d at 4.

       In addition, applicant’s evidence is adequate to meet the requirement imposed by


2
        See also Ex parte Hughling, 706 S.W.2d 662, 663 (Tex. Crim. App. 1986) (applying rule of
Young/Evans and denying relief on involuntary-plea claim because, even assuming that counsel had
misadvised Hughling regarding his statutory parole eligibility, this Court’s “review of the actual
guilty plea hearing shows that neither the prosecutor nor the trial judge made any references or
promises concerning [Hughling’s] parole eligibility,” and thus parole-eligibility information “was
not an element of the plea bargain entered into by applicant”).
                                                                                          Dean - 12

Evans that the record somehow show that the misunderstanding regarding her parole

eligibility constituted a part of the plea bargain. See Evans, 690 S.W.2d at 279. Here, the

record shows that, during applicant’s plea colloquy, the trial-court judge asked trial counsel,

“Is this a 3g offense?” Counsel replied, “It is not, Your Honor.” The trial court responded,

“Okay. Alright.” Applicant’s attorney, applicant, and the trial court, therefore, all agreed to

the plea bargain while under the mistaken impression that applicant’s sentence would be

served with non-aggravated prison time. By accepting counsel’s assertion as true, the trial

court effectively sanctioned counsel’s incorrect advice regarding this matter that was critical

to applicant’s decision to plead guilty. In this sense, the instant facts are similar to those in

Young, in which the record implicitly showed that the trial court had “also labored under [a]

misunderstanding of the law” regarding the deadly-weapon finding. See Young, 644 S.W.2d

at 4. Given this similarity, we conclude that applicant’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. See id.; see

also Evans, 690 S.W.2d at 279.

       Because the habeas court analyzed applicant’s claim under this Court’s more recent

precedent in Moussazadeh III, we will briefly address this Court’s holding in that case.3 See


3
       We note here that the habeas court’s application of Moussazadeh III as the relevant legal
standard is understandable, given that this Court cited that case in its order remanding this case to
the habeas court for findings of fact and conclusions of law. See Ex parte Dean, No. WR-79,040-02
(Tex. Crim. App. July 1, 2015). It appears that, as of the time that this case was remanded to the
habeas court, this Court had not yet considered that applicant might be entitled to relief under this
Court’s precedent in Young and Evans that predated its opinion in Moussazadeh III, and thus the
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Moussazadeh III, 361 S.W.3d at 691-92. In 2012, this Court, on its own initiative, reopened

the prior writ application that had been filed by Moussazadeh, in which he had claimed that

his plea was involuntary due to his attorney’s erroneous advice regarding his statutory parole

eligibility. In its initial opinion disposing of Moussazadeh’s claim in 2001, this Court had

denied relief based on its determination that the record in that case failed to satisfy the

requirements of Evans. See Ex parte Moussazadeh, 64 S.W.3d 404, 411-13 (Tex. Crim. App.

2001) (Moussazadeh II) (rejecting Moussazadeh’s involuntary-plea claim because he failed

to prove that his plea was “induced by a misunderstanding of the applicable parole law which

formed an essential element of the plea agreement”). In reconsidering its treatment of

Moussazadeh’s claim in Moussazadeh III, this Court concluded that its analysis in

Moussazadeh II had been incorrect, and it vacated its prior judgment and granted relief. Id.

at 692. In the course of reaching its conclusion in Moussazadeh III, this Court modified the

rule that governs the granting of relief under these circumstances by holding that a defendant

could show that his plea was involuntary by demonstrating that counsel misadvised him

regarding matters of statutory parole eligibility and that, but for that misadvice, he would not

have pleaded guilty. Id. at 690-91. In other words, this Court removed the additional

requirement imposed by Evans that a defendant show that the parole-eligibility

misinformation constituted an element of the plea bargain. See id. at 689. The reasoning

underlying this Court’s holding in Moussazadeh III was its recognition that the approach in


focus of the remand order was whether applicant was entitled to relief under our more recent
precedent in Moussazadeh III.
                                                                                       Dean - 14

Evans had been based on flawed reasoning that had conflated matters of parole attainment,

which are necessarily speculative, with matters of parole eligibility, which are concrete and

certain as of the time of a defendant’s guilty plea. See id. at 690 (explaining that, unlike

matters of parole attainment, “the question of parole eligibility . . . elicits a straightforward

answer because an applicant’s parole eligibility is determined by the law in effect on the date

of the offense”). Given this recognition, this Court in Moussazadeh III concluded that relief

would be warranted under these circumstances if the defendant could satisfy the ordinary

Strickland standard that requires a showing of deficient performance and prejudice, without

requiring him to additionally show that the misunderstanding as to his parole eligibility

constituted an essential part of the plea agreement. Id. at 691.

       Based on this Court’s holding in Moussazadeh III that expanded the availability of

relief for involuntary-plea claims based on counsel’s erroneous parole-eligibility advice, it

appears that applicant would be entitled to relief under the rule of that case if it were held to

apply to her situation.    But, because Moussazadeh III was decided after applicant’s

conviction became final in 2011, it is unclear whether applicant may avail herself of the more

favorable legal standard set forth in that case. In concluding that applicant was entitled to

relief under Moussazadeh III, the instant habeas court did not consider whether that decision

could be applied retroactively to applicant’s case. We note here that the question of whether

Moussazadeh III could be applied to applicant’s case is a difficult one. On the one hand, to

the extent that the rule in Moussazadeh III would be construed as a new rule of constitutional
                                                                                      Dean - 15

law, this Court’s retroactivity doctrine would appear to preclude the application of that rule

to applicant’s case, unless the rule could meet one of several limited exceptions. See Ex

parte De Los Reyes, 392 S.W.3d 675, 678 (Tex. Crim. App. 2013) (citing Teague v. Lane,

489 U.S. 288, 301 (1989)). On the other hand, it is not entirely clear that the rule set forth

in Moussazadeh III would constitute a “new rule” as of the date of this Court’s decision in

2012, given the unusual procedural posture of that case, which involved this Court reopening

and granting relief on Moussazadeh’s prior writ application from 2001, based largely on this

Court’s assessment that its prior reasoning in Moussazadeh II had been mistaken. In any

event, we conclude that we need not address these difficult questions in order to resolve

applicant’s case because, as we have explained above, the record shows that applicant is

entitled to relief under this Court’s precedent that existed prior to its decision in

Moussazadeh III. We accordingly determine that it is unnecessary to decide whether or how

Moussazadeh III applies to this case.

                                        III. Conclusion

       We conclude that this record adequately demonstrates that applicant’s trial attorney

misadvised her about the applicable statutory parole law and that, but for that erroneous

advice, she would not have pleaded guilty. Because the record further reveals that counsel’s

misadvice was overtly sanctioned by the trial court during the plea hearing and thus the

matter of applicant’s parole eligibility rose to the level of an element of the plea bargain, we

hold that applicant is entitled to relief under the law in Young and Evans that preceded
                                                                                     Dean - 16

Moussazadeh III. In accordance with the habeas court’s recommendation to grant relief on

the basis of ineffective assistance of counsel, we grant habeas relief to applicant. The

judgment in this cause is vacated, and applicant is remanded to the custody of the Dallas

County Sheriff to answer the charges set out in the indictment. The trial court shall issue any

necessary bench warrant within ten days after the mandate of this Court issues. Copies of

this opinion shall be sent to the Texas Department of Criminal Justice–Correctional

Institutions Division and Pardons and Paroles Division.

Delivered: November 23, 2016

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