Pelloat, James Allen
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Opinion
15101'§1 010;21011 119 112 111
LVJ 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.
*****
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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ocr 19 2011
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BR E ALLEN D »;k, n County, Texas By
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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.
Free access — add to your briefcase to read the full text and ask questions with AI
15101'§1 010;21011 119 112 111
LVJ 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.
*****
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: `
%\I=EB :P
A¢ élloo o'oloa<__._____
ocr 19 2011
r 1
BR E ALLEN D »;k, n County, Texas By
. ......... . \ l //,//// CO U N‘(`l\\\\\\\\\
"'/I/uu\\\\\\“
01111311\1/11
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 JUDGE: Are you entering this plea of guilty freely and voluntarily?
'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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MR. DAVIS: 559] . \\\\;:,§\Q"\.C.T‘ .§`O/O/'//,////
THE JUDGE: 5591. if you would room that - §é\_.-" /\ § :' '; m§ = z '. ~ 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"&""//,,// \ X<,._., ....... ', .. s O ', defendant understands § Q .__0,1,, '»,¢ § 2 “ "= :=.§/\ .-' "», '- *1'$ 201 ’\°“\° . o . ........ \` ’/ »‘\l \\ ’/ \ \\ //,/CO U N \\\\ /"/qum\\\\“ 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 -- ' lllllll/ \\\\\\ l/// /// THE JUDGE: All right, \` ;,\ THE JUDGE: is this the agreement 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~~~/,,, l 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. .,":"i ;'V ._l lN THE couRT oi= chMiNAL Al>r>`iz`.i\i.sL "‘ l"" ,,,, in OFTEXAS .l.lil. ii 1_0 Fli2 afl j BF_I' tAi,l .NE _ /`iDlB Rl(` l.‘F.l‘lll ___-__-______-_______ ___________-______~~__ 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 s §-"'1;/ Cause Number 5593 - Ser 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 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 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. l i l l i 10. App|icant's trial counsel advised App|icant of the_ possibility of the convictions running l | 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 ' 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. 4. App|icant has failed to meet his burden of proof by a preponderance of the eviderice. l 5. App|icant is not entitled to the relief requested in his Application for Writ of l-labeas . 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 . \<> ~\<2>~\°.;)_ “§i:\/.~s\es @e\>.<> §§; '\§OO "<'<‘<\ '\g%'§ Roev\ accev»T°\*/~ as -. q § 58® % C-L‘L\E ®L`L`E g~l `®'E \’°”s> -’ CD\)N’\\'\ D\‘->'(Q\ e\ C-'\~"¢Q`\g QQ. OJ-»>v~ 929 NE\>::‘{<>\)' / @`r`:m T€\s ®L\_>eel' ©¢e `§v\.\\ \\_ SO\‘D` ‘-\Q\» ?` iL'C-'p m\,\\&~m»e~<> me rv"\ ab m <>Q\e\~ac \\e>"i, l \k,°`,§\,¢ » ®~’¥’€C,%\\)E‘¢ \\ %-oeg ‘<'a "\\\15 b\$'t \>~i \>~ee ‘->~ SE\ ~<>\>»~\%'"9¢\ 2>?` QQ\\S <§o AC'\ ¢.=.\) ~r-\ mesa ‘\“\~r-e ~ %`c\ cea T\ e`r.~d<> ‘<\>:\`-,v<) vt \S %Et~f"\ ’\‘O ‘t'\'-\§ Cb\i-c;\ e'\`~ 'CQ~\"""’“\" *?~Q@E-‘\”‘-". C_,o\)\»o “\i‘>\/ vN\~/\ '\>\wt:¢~>s€t) \\©“\ ss t\>ow Wa\a~@\ \\<< '»<-< W\\_‘~“&i- SE'.~N '\"o ->(Yr§_ C"D`\J£U\ v\? C`Q`\"'\‘Nl-`~\` \}\\DQY:\A"\_‘S § ~<\t$>t~\\. \-»\p\) `$,~,»,c;~\ \*\~€>v<\ \\i:\.e, %\ \_\:) L€&\?,L\J\ §§ saw Qsae.eec\ O( 361 ’ L\. g `. l`Eu~r°pa go ,' D\‘l>rto`\ lC-\»‘EQ¥~ Pc>_ Oyo~,` §)'2>'5 l l {\\5 E'w<<,\> / @E,~m \"\s. '(§L\)`evl l c v30 \°A "-\Q\» PV)L\T~'\D \&m=`e<~'~o M'P‘°'\ -l`:> M.\ OR\G)\‘~>;\., \.\O"i, l ~ l ®@¢e \f\ '\S. <<-'-’t?-C,*E\ E'¢ \\ §=>“0 l ` b\ y id viz aarst 353 \>`€>$ l\ ~J\H~¢\ Z>‘(' o l low \"”\ ¥\ede ‘<"*\“"-’\3 `<\ \"> m ~ao`l n -’\,.oc>e Q` \ . a¢»g l '\ cea '\‘\ e`¢.¢<) n`-,\<) \ Si»;»t~r’\ 'i'o § Cb\i `e'; C_`,@_\m\~¢\\.» pei\x.'=" Q,Oo\,e \~o\/ twa u`>v~EV~<'» v\ v\r¢\'f~~>'~>€*> \O(\ \ <\ww mo o \\\; ~¢ SEN< me C¢\»o-\` we C~O'~\"\\~AL WN_$ § \?\n\J "\zoc;\ `_"\f>\)-<\ \\\:\_'<'.t l\ `_Q LYZ¢L\>,\_\J\ c. ll § jam\l@ ii LLO¢\°& \°B‘Z."'\‘l l `Lol \\\\\\\\`\a>` § (10§\/\¢-\0.0<\) Ti=> i %e\e mr we ~ » NE\'OTO N Co -)<~o"{v\ § \‘§' ' green fw "\3\Lier:w ) ~_. A\°QROM\W\X\ \-s=»§/ los <\>c¢\é ,` mw eat valcvel~\ 'T\¢\c~»` \'\`c:\. (’ ;LB\vEn A~n affipr Of° b ll:\>\:\t` \\l)' DP\"A 7 ‘<'»¢-\\¢4, '\5 l. o-'~\ §E'w ~~e ra_%§a~c> sears wrech \ esteem-art that r»»v ,;,»:~>/ ease »v~ee: _§<:mle.i.* "¢.<. l -.w\ %m‘ai\)o'ee mg . 'Tw`:tm: 5>1‘@‘:- ml 1_`1;~“<-\ ns E§tl§n \sr>\@».n stark "g, \s\ac)\z_-rms§ vcw `ar»g ';Tr'\crei=~mee»x l nw se emil-l %l§;\‘:l rt "Tl~i\e ear~%\<)*ls_ll 19 %»ti l“OQzE-l\~->t'c)t~) Caseli l “I'\f=.r_~l` C~msa~_\ er Ce~tw\~~r\\u vl*\i’:>c=)>;~a\.s fan ~r-\s_je' t~’c_\m:am C`m,mlr' §=»_y_~;g,-x a m 9 Le-r\er:» §L*i:s@s»~*o ~rt; -n\\< title Q\resw_ Q<:;$»\ Oe;c Wq§“`u”» \._\»t ....... 'M"¢’\Z.~".'i“~ 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/ (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. 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) 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 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.' 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. ' 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 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 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 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/
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. 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 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 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 -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 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: 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 Not App|icable ' Guilty l s Not Applicable 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 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: §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; William'S. Morian, Jr. lmproper Relationship Between an Educator and Student 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. Not App|icable 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 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_,_ 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 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 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 lvo<'>’€ $¢a \x.\c\ ‘v"¢
A. W Davis, Jr.
A. W Davis, Jr. v
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