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%Q@E®ENED %§\§ Cou@'\‘rcf;@wmc\mv, ¢\@PEMS APR 0 6 2015
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Mo'. 30. 298 %0, 000
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COURTS RESPONSE
The appliacnt has peviouslv letioated the isuue before.
APPRICANTS RFSPONSE
The present application makes the assertion that the trial court is prohibited fcam\the use of a state jail felonv for enhancement
purpose. see memorandum, pq £;
Appliaants previous applicationEUa$ not make this assertion.'Th@ previous appliaction onlv_asserts that the paragraph was not alleged in indictment t 30,298. see memorandum pg,.4f
It was not until the trial courts response in the previous applic- ation that the applicant became aware that the prior conviction
need not be alleqed in the indictment, the lSB,th district cited Brooks to support this position. see prior application.
Applicant contends that the onlv conviction found in anV of his forms is the prior conviction in indictment § BO,GdO¢
se Exhibit(€xalso-pg 19 of memorandum.
This instument asserts;
daving been convicted of the felony offense of PURGLARY OF A BUILDING On the 71th day of Novemeherin cause No 23,029/B
in the District Court of TeXas, in case on the docket of said court and entitled the-State of Texas V Terrv Louis Miller intentionallv or knowinolv possesessed a fire arm before the fifth annaversarv of the defendants confinement from releif of said confinement followinq said conviction.
This instrument makes no mention that the burolarv would.he used for enhancement purpose. `
If the state intends to'effectively increase §h@ §§§u§l amount of
prison time the accuse must serve,.it must provide adequate advance
notice so that the accuse may prepair a proper defense to the
States allegations} otherwise the appli@@h¢ due-process becomes
'.
Lviolated. l
luken_v Stater 780.SW,2d,246._
In luken the court of appeals held that an enhance sentence must be supported by a written allegation of a prior conviction-lid at37 M&@ accused is entitled to a proper notice of a prior convigtion that might be used for enhancment purpose.
The prior convitcion in indictment t 30 600 only informs that the state dntends to use this prior that the state entends to show that the applicant possessed a fire_arm before the fifth annavers- sarv of his release. the notice does not infrom the applicant
that the prior would be used for enhancemnt purpose. see exhibit c. otherwise the applicant would have prepaired a defense to
the prior alleged here.\ n
sec 4 (a)>
Of the subsequent chapter provodes .
If a subsequent appliaction for a writ of habease corpus is filed after a 'final dispositionof a initial applieeiion challenging the same conviction
a court may not consider the merits or grant relief based upon the\ subsequent appliaction ud&§s appli@Qnt contains>$©ecifics facts establishing
one of the two acceptions.
For the purpose of subsection (C\ A factual basis is unavailable on or before a date described bV (al (l) if the factual basis was not ascertainable through the excercise of reasonble diligence on or before that date. The trial court does not allege in the present appliee&idmn that the prior conviction in indictment 30/600 is the prior conviction used for enhancement. For this reason the applicant request that the present application be reviewed under section (Cl of the subsequent chapter/ w the applieent has not found anv prior felony that could be used
to increase the range of punishment.
"\
n ri §oUPTs REsPoNsE ' l
This is was previuoslv letiqated in the first application.
APDT_.ICANT RFBHT']‘AL
The 188/th district conduct is conrgjhd by law, When a trialv court conduct vio&étes one of those laws the court is said tp
have no authoritv to act/Ex,parte Sanchez,918,Sw.Zd,SZ€,-Zl.
The court of appeals reversed in §anchez as the court should here holding that a iudicial defect in the trial proceedings would render a iudqement void. ` b
The court noted\that the prior conviction alleged in indictment 130/600 can not be used for enhancement purpose.fortier V State. 105,sw,3d,697. Tx crm App, 2003.
The judicial performance performed by one with no authority to act may be raised at any time. meutew Williams 65%'Sw,3d,6551 Applicant contends that.the trial court entered a sentence of
` fourtv Vear's in the caseat bar. ' `
In a previous applie§tion the applicant made several inquiries into the existance of the specific conviction that was use to increase the punishment ranqe. the lRS.th District has yet to
provide that information. see memorandum pa 4-5.
The applicant contends that the trial court vioalted his due'
process. §he court of appeals is asked to review this application
in an effort to discover the prior that gives the court its-
authoritv.
\)'\
_ 111 coURTS~REsPOSNSE
.Nhe issue regarding the affirmative finding was previuoslv letigated on direct appeal.
APPLICANTS RFSPONSE
The court does not assert that the mpplemnh¢v@kh not raise the
issue in an application for_ll:07, or in a habease corpus.
- l \/..
Applicant contends he is not prohibited from raising the issue
again in his habeas for the first time.
IV COURTS RESPONSE
Whi]e the specific complaint may not have been raised at that time l there is no new facts that could not have been raised
in the first appliaction. APPLICLNTS RESPONSE
Applicant was unaware of the prior conviction do to the fact
it was not alleged in indictment 30,298. It was not until communicating with the trial csurt ig Selfhthat§PRM§§Q§§¢Té@rnéJ that the prior was some where among his forms.
Once the appicant did discoverrthe prior conviction he still was noe aware that the conviction‘was a state jail felony.
It was not untJl the appli@ant di=d additioanl res; arch regarding
the prior conviction that the applicant became aware that the 1
conviction was a state jail felonv- “ ' W 'Mf ‘ `“‘ ‘5
One who has been»accused of a crime may some times take months or even years before heyshe discover the iniurv suffered whereas the attorney may discover the same information in a matter of
hours.
applicant argues that he was misled by both the trialecourt and his counsel-asito the enhancement matter. Indictment 30,600 is the new fact,that applicant has presented in the current application. the court of appeals has recognozed.in Bradv voluntariness
which explain that a guiltv plea must be entered.bv one aware of the direct'conseguences to be voluntarv.
'Failure of the counsel to'informy invetigate,and'obiectrviola:es
theaaccuse due process. of the sixthr’and fifth amandment.
Several courts have recognized- where ineffective assistance of counsel otcurs before a trial the harm consistent to the defense. Exparte Lemkew lR,SW,Rd,7Ql.
Free access — add to your briefcase to read the full text and ask questions with AI
:Qe»_\,,x_s::<":*iz@.e@a . ` 57 8 / 5(0 '~/‘0> ,-¢O/ _ \ 4
¢PP:IMMT$ BEBMTAL"_ ’ f
%Q@E®ENED %§\§ Cou@'\‘rcf;@wmc\mv, ¢\@PEMS APR 0 6 2015
m@e/a@@§z@,‘cs@vk
Mo'. 30. 298 %0, 000
`\“@ *m€ HOMOQA%L€ cLEK\<¢
Nowr CoMsz-: 'T’EQEY Mcu`€¢, »M ms ee:?>m~m\_ ~ro we \%+\»
D LS\L"¢<‘:(' "C'Spohs$‘
l
kf>pl’tccm-(' is humble "C`%u&s~l~m? 'Um{~ `[6<-1~ Pl¢m-e make eopic;s
0{~+41¢ qPP|\CQ/k(,s F¢SP,OQ<_,€ and ’£Or`¢UGJ`J l+ 40 'H\e 168¢’€¢\ d‘S"`“¢C"", GFGS§', Courvl»~(, L~O"ljv'c.cu.), _UL,‘
\/OUP aHer)'l-wn m “dr\¢$ mat{»er- »¢e, grea{~b.( app r¢cc¢l{~¢c} 1
wm S\'n \\f
COURTS RESPONSE
The appliacnt has peviouslv letioated the isuue before.
APPRICANTS RFSPONSE
The present application makes the assertion that the trial court is prohibited fcam\the use of a state jail felonv for enhancement
purpose. see memorandum, pq £;
Appliaants previous applicationEUa$ not make this assertion.'Th@ previous appliaction onlv_asserts that the paragraph was not alleged in indictment t 30,298. see memorandum pg,.4f
It was not until the trial courts response in the previous applic- ation that the applicant became aware that the prior conviction
need not be alleqed in the indictment, the lSB,th district cited Brooks to support this position. see prior application.
Applicant contends that the onlv conviction found in anV of his forms is the prior conviction in indictment § BO,GdO¢
se Exhibit(€xalso-pg 19 of memorandum.
This instument asserts;
daving been convicted of the felony offense of PURGLARY OF A BUILDING On the 71th day of Novemeherin cause No 23,029/B
in the District Court of TeXas, in case on the docket of said court and entitled the-State of Texas V Terrv Louis Miller intentionallv or knowinolv possesessed a fire arm before the fifth annaversarv of the defendants confinement from releif of said confinement followinq said conviction.
This instrument makes no mention that the burolarv would.he used for enhancement purpose. `
If the state intends to'effectively increase §h@ §§§u§l amount of
prison time the accuse must serve,.it must provide adequate advance
notice so that the accuse may prepair a proper defense to the
States allegations} otherwise the appli@@h¢ due-process becomes
'.
Lviolated. l
luken_v Stater 780.SW,2d,246._
In luken the court of appeals held that an enhance sentence must be supported by a written allegation of a prior conviction-lid at37 M&@ accused is entitled to a proper notice of a prior convigtion that might be used for enhancment purpose.
The prior convitcion in indictment t 30 600 only informs that the state dntends to use this prior that the state entends to show that the applicant possessed a fire_arm before the fifth annavers- sarv of his release. the notice does not infrom the applicant
that the prior would be used for enhancemnt purpose. see exhibit c. otherwise the applicant would have prepaired a defense to
the prior alleged here.\ n
sec 4 (a)>
Of the subsequent chapter provodes .
If a subsequent appliaction for a writ of habease corpus is filed after a 'final dispositionof a initial applieeiion challenging the same conviction
a court may not consider the merits or grant relief based upon the\ subsequent appliaction ud&§s appli@Qnt contains>$©ecifics facts establishing
one of the two acceptions.
For the purpose of subsection (C\ A factual basis is unavailable on or before a date described bV (al (l) if the factual basis was not ascertainable through the excercise of reasonble diligence on or before that date. The trial court does not allege in the present appliee&idmn that the prior conviction in indictment 30/600 is the prior conviction used for enhancement. For this reason the applicant request that the present application be reviewed under section (Cl of the subsequent chapter/ w the applieent has not found anv prior felony that could be used
to increase the range of punishment.
"\
n ri §oUPTs REsPoNsE ' l
This is was previuoslv letiqated in the first application.
APDT_.ICANT RFBHT']‘AL
The 188/th district conduct is conrgjhd by law, When a trialv court conduct vio&étes one of those laws the court is said tp
have no authoritv to act/Ex,parte Sanchez,918,Sw.Zd,SZ€,-Zl.
The court of appeals reversed in §anchez as the court should here holding that a iudicial defect in the trial proceedings would render a iudqement void. ` b
The court noted\that the prior conviction alleged in indictment 130/600 can not be used for enhancement purpose.fortier V State. 105,sw,3d,697. Tx crm App, 2003.
The judicial performance performed by one with no authority to act may be raised at any time. meutew Williams 65%'Sw,3d,6551 Applicant contends that.the trial court entered a sentence of
` fourtv Vear's in the caseat bar. ' `
In a previous applie§tion the applicant made several inquiries into the existance of the specific conviction that was use to increase the punishment ranqe. the lRS.th District has yet to
provide that information. see memorandum pa 4-5.
The applicant contends that the trial court vioalted his due'
process. §he court of appeals is asked to review this application
in an effort to discover the prior that gives the court its-
authoritv.
\)'\
_ 111 coURTS~REsPOSNSE
.Nhe issue regarding the affirmative finding was previuoslv letigated on direct appeal.
APPLICANTS RFSPONSE
The court does not assert that the mpplemnh¢v@kh not raise the
issue in an application for_ll:07, or in a habease corpus.
- l \/..
Applicant contends he is not prohibited from raising the issue
again in his habeas for the first time.
IV COURTS RESPONSE
Whi]e the specific complaint may not have been raised at that time l there is no new facts that could not have been raised
in the first appliaction. APPLICLNTS RESPONSE
Applicant was unaware of the prior conviction do to the fact
it was not alleged in indictment 30,298. It was not until communicating with the trial csurt ig Selfhthat§PRM§§Q§§¢Té@rnéJ that the prior was some where among his forms.
Once the appicant did discoverrthe prior conviction he still was noe aware that the conviction‘was a state jail felony.
It was not untJl the appli@ant di=d additioanl res; arch regarding
the prior conviction that the applicant became aware that the 1
conviction was a state jail felonv- “ ' W 'Mf ‘ `“‘ ‘5
One who has been»accused of a crime may some times take months or even years before heyshe discover the iniurv suffered whereas the attorney may discover the same information in a matter of
hours.
applicant argues that he was misled by both the trialecourt and his counsel-asito the enhancement matter. Indictment 30,600 is the new fact,that applicant has presented in the current application. the court of appeals has recognozed.in Bradv voluntariness
which explain that a guiltv plea must be entered.bv one aware of the direct'conseguences to be voluntarv.
'Failure of the counsel to'informy invetigate,and'obiectrviola:es
theaaccuse due process. of the sixthr’and fifth amandment.
Several courts have recognized- where ineffective assistance of counsel otcurs before a trial the harm consistent to the defense. Exparte Lemkew lR,SW,Rd,7Ql.
the court of appeals noted in Lemke, Thatucounael failure to'comm-` v'unicate creates a probability that sufficient to undermine the confidence and integrity of the out come of the-trial proceedinqs. I.d at
The courts have tailored a remedy to inquire into the iniury vsuffered when counsel fail's to convey information.
Sec (Cl provides review.of those issue's. whereas counsel may
explains
V . coURTS RESPONSE
The issue of the allegation inadequacy of the indictment was
previuosly raised, in a first application.
_APPLIACNTS RESPONSE
The 188/th District does not assert that the prior conviction in
indictment 30/600 is the prior that the court used to enhance the
punishment-
The appliacnt contend that the conviction alleged here deals with
a question concerning the courts authority to act.
There is no other prior alleged in any of the applicants&fprms. For these reasons the court of appeals is asked to develope the records even futher, whereas the 188/th District court may reveal the prior conviction used to increase the applicants punishment
range, Sec 4. plainly request that a final disposition on an initial writ. the court noted that it must entail a disposition relating to the merits of all claims raised; Dispositions relating to the merits
ed not related to the
are labled denial/ while the disposition relet merits are labled dismissed. Regardless of the lable the court noted that it should look at the.substance_of the disposition to determine whether the writ is barré@ by sec e.Ex;parte/Torres 943,SW,2d,469 Applicant respectfully ask that the appeals court review these meritable /regardless as to whether the applicanh% has satisfied the subsequent
sec 4.