Ross, Austen Joseph

• Court: Court of Appeals of Texas
• Decided: February 9, 2015
• Docket: WR-82,538-01
• Status: Published

Opinion

82,538-01 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 2/9/2015 2:06:11 PM Accepted 2/9/2015 3:17:21 PM ABEL ACOSTA NO. 82,538-01 CLERK

EX PARTE § IN THE COURT OF RECEIVED COURT OF CRIMINAL APPEALS 2/9/2015 § CRIMINAL ABEL ACOSTA, CLERK APPEALS

AUSTEN JOSEPH ROSS § AUSTIN, TEXAS

MOTION FOR THE COURT TO RECONSIDER APPLICATION ON ITS OWN MOTION

TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS:

COMES NOW Applicant Austen Joseph Ross, by and through his

undersigned counsel, and pursuant to TEX. R. APP. PROC. 79.2(d) files this motion

for the Court to reconsider the Application on its own motion. In support of this

motion, Applicant would show as follows:

On February 4, 2015, this Court dismissed the Application without written

order due to the sentence being discharged. This Court cited Ex Parte Harrington,

310 S.W.3d 452 (Tex. Crim. App. 2010). However, Harrington expanded the

definition of confinement to encompass collateral consequences, “including the

loss of his job and other suitable employment opportunities; loss of his right to run

for public office; loss of his right to possess firearms; enhanced penalties for any

future convictions; and potential impeachment of his credibility in future judicial

hearings.” 310 S.W.3d at 457.

1 Here, Applicant alleged that he was confined due to being incarcerated in the

Travis County Correctional Complex on a charge of Intoxication Manslaughter

(cause number D-1-DC-13-100124 in the 299th Judicial District Court of Travis

County, Texas). In an enhancement paragraph, the indictment in that case alleged

the 2006 third-degree felony conviction that is the subject of the instant

Application. See Amended Memorandum in Support of Application, at Attachment

5, Indictment in D-1-DC-13-100124. This enhancement allegation raised

Applicant’s penalty range from a second-degree felony (2-20 years imprisonment)

to a first-degree felony (5-99 years or life imprisonment). Applicant specifically

alleged the impact of the conviction on his sentencing range as the reason he was

confined for purposes of TEX. CODE CRIM. PROC. ART. 11.07. See Amended

Memorandum, at 3-4; see also Amended Memorandum, Attachment 2, Affidavit of

Austen Joseph Ross.

Although Applicant was convicted of the Intoxication Manslaughter charge

while this Application was pending, the felony conviction that is the subject of this

Application continues to “confine” Applicant by virtue of its potential impact on

parole decisions, as well as its impact on enhanced penalties for future convictions

(e.g., if Applicant is charged with a felony in the future, the 2006 felony

conviction, in conjunction with the 2014 felony conviction, could be used to

2 enhance Applicant to a habitual-offender sentencing range of 25 years to life

imprisonment). The Application should be read as alleging that Applicant is

confined by virtue of the enhancement implications of the 2006 felony conviction

that is the subject of the Application.

Furthermore, the State filed an Answer informing the Court that the State

does not oppose the allegations contained in the Application, and it agreed that

relief should be granted. See State’s Answer, at 3. The State’s Answer also

specified that “[t]hough his sentence has discharged, he has now alleged collateral

consequences due to the fact that he is currently charged with intoxication

manslaughter in Travis County and his indictment in that offense has been

enhanced with the third-degree felony offense in this case — subjecting him to a

greater punishment range.” Id.

WHEREFORE, PREMISES CONSIDERED, Applicant prays that this Court

reconsider his Application on its own Motion. Upon reconsideration, Applicant

prays that this Court determine that he is confined by virtue of his 2006 felony

conviction and proceed to consider the underlying claim on its merits.

3 Respectfully submitted,

/s/ Christopher M. Perri________ CHRISTOPHER M. PERRI 1504 West Ave. Austin, Texas 78701 (512) 917-4378 (Fax) 474-8252 chris@chrisperrilaw.com State Bar No. 24047769 ATTORNEY FOR DEFENDANT

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing Motion for the

Court to Reconsider Application on Its Own Motion was mailed to the Williamson

County District Attorney’s Office on the 9th day of February, 2015.

/s/ Christopher M. Perri___________ CHRISTOPHER M. PERRI