Pelloat, James Allen

15 v1051 ~0103 OL/ 9 D 10 110 IN THE COURT OF CRIMINAL APPEALS §§TTE”©N DENDE© CAUSE-75, 937-07, WR-75, _937-06, WR-75, 937-08 :-==-‘===;§, ' TR CT 5617, 5593, 559l-A STATE QF TEXAS , RECE!VED IN 1 - CCURT OF CRlMINALAPPEALS V.‘ Nuv 04 2015 JAMES ALLEN PELLOAT, APPELLANT PRO SE Abe!Acosta, Clerk MOTION FOR RECONSIDERATION EBOM 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: [1] 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 light to tile 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 trial. These pieces of evidence were (1) the transcripts from his day in court, March 23, 2005, and (2) a finding 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 Count`y`Distlict Clerk. He periodically sent letters after 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 horn 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. 'I`he District Clerk never processed his 1107 and merely kept the motion un-tiled 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=‘ 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 Attorney stated that “His attorney knew about the enactment of September 11 2003, for P._C. 21 .12” on item number 12. This meant that his attorney, William 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 _E_)g Partv Mou_ssazadeh 361 sw 3d 648. The withholding of such important facts by Appellant's lawyer and the District Attorney made his guilty plea unknowingly and involuntary and tainted the entire judicial process. With the two, possibly three, illegal P.CI 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 17th 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 Slrickland. m In January 2005, Appellant was indicted (see indictment 5617) for Aggravated Sexual Assault that allegedly occurred on May l, 2001. Through school docurnents, the attorney proved that Appellant had not been hired to teach in Nevvton 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 Attorney 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 attomey, 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 attomey, 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 District Attomey openly committed perjury by consciously lying concerning the lesser included crime. PRAYER Appellant, J ames 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, J ames Allen Pelloat TDCJ # 1289716 CT Terrell Unit (R-3) 1300 FM 655 Rosharon, Texas 775 83-8609 CERTIFICATE OF SERVICE I, J ames 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 §cw~\w; ®§L§Lv\ gm 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 TN THE DISTRICT COURT VS. l-A JUDICIAL DISTRICT ***** JAMES ALLEN PELLOAT .NEWToN coUNrY, TEXAS PLEA On March 24, 2005 the following proceedings were had in the l-A Judicial District Court of Newton County, Texas: ` Ell=EQ A¢ 51100 o'c¢ock§__" 1 OCT 19 2011 BR E ALLEN D rk. n County, Texas By ’ \\\\\\\mmm,,// \"`<`;\ai T cO"”///,,. 9 o\ l . ' » °,C¢ ~~~~~~~~~ \\\ ~ , . / \ . /,// § L \\ _' "’/Ilu m\\\\\‘\ umw whnmmdm \»~'4§:‘..°.9.3’;-.. h”uqué*§»dmmaiod»w°§z" O| { l G |Ni \L ~M.Wmm APPEARANCES FOR THE STATE: MR. A.W. DAVIS DISTRICT ATTORNEY NEWTON, TEXAS - - FOR THE DEFENDANT: MR.WILLIAM MORIAN 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 JUDGE: All right Do you wish to have the indictments read? MR. MORIAN: No, Your Honor. We’ll waive the reading. THE JUDGE: Is -- is the defendant the same person named in each indictment and is his name spelled correctly? MR. MORlAN: Yes, Your Honor. THE JUDGE: All right, at this time I’d ask the Defendant to stand. THE DEFENDANT: (Stands). THE JUDGE: Do you plead guilty or not guilty to the indictments in each of the cases I just named? Tl-IE DEFENDANT: The ones you just named, sir, I plead guilty to, yes, sir. THE JUDGE: Before I can accept your plea of guilty I have to understand several things. First of all, l 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 DEFENDANT: Yes, sir. THE JUDGE: Are you entering this plea of guilty freely and voluntarily? THE DEFENDANT: Yes, sir. THE JUDGE: ln each case? THE DEFENDANT: Yes, sir, in each case. //l // N ,""N m\\\\\\“ \, l 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 7th of 2004 and indicted Decer`nber 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 indictrnent, prior to the presentment of 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. - ' I’d ask you, Your Honor, to take judicial notice of all the papers on tile in the case, and in particular, the three page guilty plea memorandum that’s signed by the defendant, by his attomey, by me, and by Your Honor; the six page written plea admonish -- admonishrnents document which also includes the various waivers of the defendant, a judicial confession signed by the defendant; along with l signatures of the defendant, his attomey, 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. Atter 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 THE JUDGE: All right Mr. Morian, is this the agreement in 55 -_MK DAVIS: 5591, THE JUDGE: 5591. If you would recite that - OU\\\ / "Ilmm\ \\\\\ . \ \ \\\\ \\‘\ w MR. MORIAN: Judge, these »- these --the plea recommendation is _ 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. MORIAN: 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. MORIAN: 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 I’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’ré 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 l had a chance to study that and go over that; is that correct? THE DEFENDANT: Yes, _ THE JUDGE: In all cases? THE DEF_ENDANT: Yes, sir. THE JUDGE: What I’xn 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.- An right Your Honor, at this time maybe it would be g appropriate for the record if I went ahead and just stated them"m plea bargain as the State understands it and hopefully §s\ “ C_l_'~/,~,,,,/ defendant understands - " \‘§}.§-l ..... _CO ’ l \ l s 0 a \‘ '- 'P a § o .' /\: : . - : _ . . , 22 ' ‘ " ' : _ , _ ._ . : “:lu', , .‘U')§ : '. ,~' '~. ~' T: z v j ~ -\¢e aow was ’/, % ~~~~~~~~ '\ \" // \\ ” C \ \` '// N \\\ ///l \\\ rim JUDGE: An right MR. DAVIS: - it at this point-, before we go to one case at a tirne. 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 sentences, 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 g 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 at a future date, and the option to ask the Court to » stack it along with the other -- the other convictions thatthat are in record. THE JUDGE: All right Let - let me do this then. And this will apply to all -- all four cases. ls this the agreement, Mr. Morian? MR. MORIAN: 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 -~ THE JUDGE: Au right MR DAVIS: - for Your Honor’s'consideration. §§ THE JUDGE: ls this the agreem` l ent? §§ § vt ' \ "/,?p€' ......... ° .<<),:§` THE DBFENDANT; yes, sir. 1 OUNT`l THE JUDGE: All right. And you understand that initially 5592 was to be ` a part of this plea agreement, but there is no agreement . with reference to that case and that case has been § . 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 _ § concurrently or it could run consecutively with these other sentences? THE DEFENDANT: Yes, sir. § 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. MORIAN: Yes, Your Honor, that’s correct. l THEJUDGE: - correct? All right ' v ; 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 --4 ' z THE JUDGE: Yes. - ’ Ma DAVIS: -- with the first one. g THE JUDGE: If you’ll go ahead and do that and then I can take care of\\\\\\\\\\\uln(:`,,,~,, . \\\\ R 7~ /,,//{ ‘ all of them. §§ Q\c.'..>‘_\ ........ C`Oo¢,2 _ MR DAVIS: I’ll do them one at a time if you’d want me to. §2 :"' ".73‘:=§ 'rHEnJDGE; Yes, sir. :Z,,"-.,§/\ _.~"§§’ . ,04/ '- ......... >\<irs: MR. DAVIS: A11 right I’d just like the record to reflect in 5593, 559 ”,"~,,€QL,/NT"( \\\\\\\"` ' // mm \\“ 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 tile 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: ls this aga-imblerv MR. MORIAN: Yes, Your Honor. n THE JUDGE: Is this agreeable? THE DEFENDANT: Yes, it is. THE JUDGE: All right. Anything further before I announce my acceptance or rejection? 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 -- `“\\\\\ll |lII//,l THEDEFENDANT; (c<$mplies). ` §§ gtR THE JUDGE: Will there be some statements? §§ ' MR. DAVIS: Yes, Your Honor. . E=,,O¢" , :l\e lN THE couRT ol= chMiNAL Appg,iii$: **" `~’ l=`-~‘ oFTExAs 3 w w P:i 1=12 se ' BR_'° .tAi iEN . sims RlC l.'f»'_m\ ____________-________ -_---_-_____¢____-___ ON APPL|CATION FOR A WRlT OF HABEAS CORPUS CAUSE NOS. ND 5591, 5593, 5617 & 5594 lN THE 1A JUDlClAL DlSTRlCT CCURT FRDM NEWTON COUNTY FlNDlNGS OF FACT AND CONCLUSlONS OF LAW Applicant 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 enteer the following Findings of Fact and Conc|usions of Law. l. FINDINGS OF FACT 1. App|icant was indicted for six felony offenses: />)/ Cause Number 5591 - lmproper Re|ationship Between Educator_ and Student / : €aus_e__Number..5592 j:.Aggravated »Sexual'|Assa'ult~.-'~~ 4 _ /:,.._1___» Cause Number 5593 - Se)‘<ual_\Assault . Cause Number 5594 - improper Re|ationship Between Educator and Student (‘_`) ";»j; Cause Number 5617 - Sexu.a| Assault / Cause~Number~5'6~'1~8~--lmpro’perRe'lation’shtpietween£ducato‘rand-Studgt. 2. App|icant entered into a plea bargain with the State and plead guilty to the following l charges: Cause Number 5591 - lmproper Re|ationship 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 Cause Number 5594 - improper Re|ationship Between Educator and Student Cause Number 5617 - Sexual Assau|t. . Cause number 5617 (Sexual Assault) was to run consecutive to the sentence in cause number5593 (Sexual Assault). 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 "improper Relationship” statute. (Penal Code ` l section 21.12). § . 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 number’5594 continued until the time immediately prior to App|icant's arrest in 2004, aftlr the enactment of Penal Code Section 21.12. iv [8] . App|icant's trial counsel advised App|icant of all legal aspects in these cases includi l 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 [1] l i 10. App|icant's trial counsel advised Applicant of the possibility of the convictions running l l 11. 12. 13. 14. 15. . indictmentl. 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 occ§lrred within the statute of limitations for the particular offense and before the date of the App|icant's trial counsel was aware of the effective date of the statute making an § improper relationship between an educator 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 iiintil 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 impose§i and therefore does not affect the amount of time App|icant will have to serve. l ll.' CONCLUS|ONS OF LAW App|icantfs plea was entered knowingly and voluntari|y. App|icant's trial counsel's conduct was not deficient conduct that fell below the standards of performance required of counsel in criminal cases. App|icant's trial counsel did not render ineffective assistance of counsel. 4. App|icant has failed to meet his burden of proof by a preponderance of the evideri`ce. 5. App|icant is not entitled to the relief requested in his App|ication for Writ of Habea‘s Corpus. § Having considered the evidence as set forth before this Court and in light of the foregc§ing Findings of Fact and C_onciusions of Law, it is the opinion of this Court that the relief prayed for in this case be DEN|ED. lt' is further ORDERED that copies of this document be served on the App|icant and counsel l for the State. , Signed and entered on this £é day of ;W:Iéz , 2011. E P. OW N ,JUDGE - JUDlClAL DlSTRlCT COURT NEWTON COUNTY, TEXAS [4] \O ~\<2\~\:’9` 'é>'“c\e\es @e\,\<><s»\ '\¢a<a¢rz\c §_`:S;gz\s~$e€i`:\n_ew \`JC~‘ '\\ \S¢OC `\".<‘<\ `\a%§ Ros \a AQoNT&% ag -. q q 58‘°2 %¢.-1@_\§, ®L\.~`e, ai ‘®E\>n> a Co\)r~\'rv\ D\br<sz\ e\ C\-"EV~¥~ p.O` Qy_~.'»~)~ §§ Nemos>, <Egm) qgc\\°\., ©ersa mt ®L\.esl ab ,W\ O<z\e\t~».¢~c \\ori, l \m~\,; mm <~>s\me <\ '\S ®F¢’r`, L%\~QE’O \'\ §§ch to "\\>15 b\$\’o`\e\ fdvym\\id‘c` own `\>i \>~-ee id ‘>E-\ w'w-m<>s"éc\ z>*? 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(\cc\r~\\>rr)r:~¢> \\<>"? vo`c;¢»\ "'{'\¢`~c=`-\ \‘\c>\l ~i'j_;& C;`\`¢\\)\`:Y> y 'P-~'d 5\1¥=.~¢_.»_ Of~" :\>x."\k \\) a}¢’\"¢§ 1 “T\-\\¢§ ‘\'.‘> "»-~\ §§ <-D ’\“0 <L…_:§_d_ :;;»~f',,;;~r saw -\‘~a~€ ' -~.§‘i<>m»_z!° ,3-<. ¢~\»~.'\A ?`~m~'~‘%wo‘v`:_<) '\\Q'? . T\A\`:Q\'; c\i_<n-_ A`\ 1_1:\§§._\ °2> qur§.\,__\;,r-\g_;.za N,.b§__\€¢____~§:§.®\c,wv_v§____ `€\wg "T¢Joc\x‘=»m~\`~zm mm '~;-cc§¢_§-.`» \ola\‘T "Ww; m\~‘é\o_$ '1 10 Q>zz Q~oc><z~¥§s€szw Ev<\§)zo. ~@w\- cwame C@\>m»\ fmc .J CZQ\.»<'.>_\ c»‘\'- C§L\`*¢.'“\'w€\\* '\\?QE:'S~\_S -‘m "r'\».j:.' T~/C~@BG'L\X\ C<:)ua'-g' €.~,>»;5,1 a m €? Lv.@\¢'i: @J:s.@¢>w'o m y -w\< "»"1\;,*€1\,= Q\;Ps-x (`B\\ my U\~» \_\A‘ f~§°*w°, “»Q~@-¢~Q>&:->< \.,) _ <- ~M`,: ~ ;,' , _'..A,... ..,.\... 'z."¥*"§§.~`¢_`“- Ex Parte MouSSazadeh, 361 S.W. 3d 684 (Tex. Crim. App. 2012) ' ( ll PAGES ) /". ?"' * q \`1" _ _ We`§tlaw. 361 s.w.3d 684 (cite as= 361 s.w.3d 684) Court of Criminal Appeals of Texas. ' Ex parte Max MOUSSAZADEH, Applicant. Nos. AP»76,439,.AP_74,185. Feb.15, 2012. Backgrolind: 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 counsel conveyed to him rendered his guilty plea involuntary. The 232nd District Court, Harris County, A. D. Azios, J., entered findings of fact supporting relief The Court of Criminal Appeals, 64 S. W. 3d 404 , denied relief App|icant filed subsequent habeas‘applicat'ion, and a suggestion for reconsideriation asking the Court of Criminal 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 affinnative;.part or essential element of the plea agreement is not determinative of court's deficient performance inquiry under .$rrickland; abrogating, Ex pal-re Ewms, 690 s.w.'zd 274; ' _ (3) counsel's misinformation"to defendant as to his parole eligibility constituted deficient performance; and (4) counsel's error prejudiced defendant and thus" was ineffective assistance. Relief granted upon reconsideration. n Keller, P.J., concurred in judgment,'with opin-m '4 ion.' West` Headnotes ` © 2012 Thomson Reuters. No Claim 1b Orig. US Gov. Works. Cases Page 1 [l],Habeas Corpus 197 @899 197 Habeas Corpus ` 1 4 1971V Operation and Effect of Determination; Res Judicata; Successive Proceedings l 197k899 k. Dismissal or hearing on successive petiti'ons; 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 previously denied, and, thus, would dismiss applicant's subsequent habeas application. Rules App.Proc,, Rule 79.2(d). " 121 Hai)'e"as' Corpus 197 €._»_)894.1 197 Habeas Corpus " 1971V Operation and Effect of Determination;_ Res Judicata; Successive Proceedings 1971<894 R`efusal to Discharge; Subsequent . App|ications; Prejudice 1971<894“.1 1<. in geneiai. Mosr oier v _. , » \ An initial application for a writ of habeas cor- . pus seeking an out-of-time appeal does not constitute a challenge to the conviction and does not bar . subsequent writ applications ` 131 Crimina1Law 1.»10 @273.1(31 l 10 Criminal Law' 110Xv Pleas 110k272 Plea of Guilty ' 1 10k273 1 Voluntary Character 110k2731(3) k. Effect ofillcgal detention or violation of constitutional rights; illegally acquired evidence MostCited Cases - ' Counsel' s advice can provide assistance so ineffective that .it renders a guilty plea involuntary U. S. C. A Const: Amend. 6. 141 Criminm Law 110 @273.'1(3)‘ t 110 Criminal Law 11 lOXV Pleas 361 S.W.3d 684 (Citc as: 361 S.W.3d 684 ) ‘ 110k272 Plea of Guilty 1 10k273.l Voluntary Character l 101<273.1(3) k. Effect ofillegal detention 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 counsel. U.S.C.A. Const.Amend. 6. 151 Criminal Law 110 @273.1(3) 110 Criminal Law l lOXV Pleas 110k272 Plea of Guilty l 10k273.l Voluntary Character 110k273.1(3) k. Effect ofillegal deten- 'tion or violation of constitutional rights; illegally acquired evidence. Most Cited Cases rA defendant's decision to plead guilty when based upon erroneous advice of counsel is not done voluntarily and knowingly. 16] Pardon and Parole 284 €,"_»~>42.1 284 Pardon and Parole 28411 Parole k 284k42 Constitutional and Statutory Provisions 284k42.l k. In general. Most Cited Cases Prisons 310 W248 310 Prisons . 31011 Prisoners and inmates 31011(F) Duration of Confinement 310k248 k. Conditional release; com~ munity placement. Most Cited Cascs 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 Parole 284 @48.1 284 Pardon and Parole 28411 Parole l2841<48 Eligibility for Parole or Parole Consideration Page 2 284k48.l k. ln general. Most Cited Cases Parole eligibility requirements are direct l<':onsequences ofa guilty plea because they are a definite and largely automatic result ofa guilty plea. k |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 » Parole attainment is not governed by statute , . 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 @92790 92 Constitutional Law 92XX111 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 inflicts a greater punishment than did the previous law. J'U.S.C.A. Const. Arr. 1, § 10, 61. 1. ' ~ 1101 Constitutional Law 92 @2789 92 Constitutional Law 92XX111 Ex Post Facto P'rohibitions 92XXIIl(/\) Constitutional Prohibitions in General . 92k2789 k. Penal laws in general. Most Cited Cases ©-2012 'I`homson Reuters. No Claim to‘Orig. US Gov. Works. 361 s.w.3d 684 (cice as; 361 s.w.3d 684) l 10k272 Plea of Guilty 1 10k273.l Voluntary Character l 10k273.l(3) k. Effect ofillegal'detention 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 Criminm Law 110 @273.1(3) l 10 Criminal Law l lOXV Pleas 110k272 Plea of Guilty l 10k273.l Voluntary Character 110k273.1(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 Provisions 284k42.1 k. ln general Most Cited Cases Prisons 310 €7->248 310 Prisons _ 31011 Prisoners and Inmates 3`1011(F) Duration of Confmement 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. 171 Pardon and Par_ol_e 284 @48.1 284 Pardon and Parolev 28411 Parol'e 284k48 Eligibility for Parole or Parole Con- sideration - j 'General Page 2 284k48.l k. ln general Most Cited Cases Parole eligibility requirements are direct con-_ sequences of a'guilty plea because they are a definite and largely automatic result of a guilty plea. [8] Pardon and Parole 284 WM 284 Pardo_n and Parole 284II Parole . 2841<45 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 €,“-"92789 92 Constitutional Law 92XX111 Ex Post Facto Prohibitions ' 92XXIII(A) Constitutional Prohibitions in General i 92k2789 k. Penal laws in general. Most Cited Cases Constitutional Law 92 W2790 92 Constitutional Law 92XX111 Ex Post Facto Prohibitions - 92XXIII(A) Constitutional Prohibitions in General ij 92k2~790 k. Punishment in general Most Cited Cases . . f A law that changes the punishment for a crime after the crime has been committed is an unconstitutional 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 Constitutional Law 92`€=»2789 ' 92 Constitutional Law 92XXIll Ex Post Facto Prohibitions l v 92XXII_I(_A) Constitutiona,l Prohibitions in 92k2789 k. Penal laws in general Most Cited Cases , ` © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.‘ 361 S.W.3d 684 (Cite as: 361 S.W.3d 684 ) 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. U.S.C.A. Const. Art. l,§ 10, cl. l. [11] Criminal Law 110 @1920 1_10 Criminal,Law l lOXXXl Counsel 1 lOXXXI(C) Adequacy of Representation l 10XXXI(C)2 Particular Cases and lssues 110kl920 k. Plea. Most Cited Cases The question of whether parole eligibility forms an affirmative part or essential element of the - plea agreement is n_ot determinative of the court's deficient performance inquiry under the Slrickland test for ineffective assistance of counsel; abrogating, Ex parte Evcms, 690 S.W.2d 274 . U.S.C.A. Const./\mend. 6. 1121 Habeas Corpus 197 @486(3) 197 Habeas Corpus 19711 Grounds for Relief; lllegality ofRestraint 19711(B) Particular Defects and Authority for Detention in General 197k482 Counsel .. l97k486 Adequacy and Effectiveness of Counsel . . 197k486(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 Strick/_cmd 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; in,the context of involuntary plea, the “different»outcome" is choosing not to plead and instead choosing to go to trial U.S.C.A. Const.Amend.. 6. 1131-citrninal Law 110 €=»1882 © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 3 110 Criminal Law . 110XXX1 Counsel 1 lOXXXl(C)- Adequacy of Representation 110XXX1(C)1 In General ~ 1_101t1879 standard dr affective Assistance in General - 110k1882 k. Deficient representation 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 prevailing professional norms therein U._S.C.A. Const.Amend. 6. ` [14] Criminal Law 110 @1920' 1 10 Criminal Law l lOXXXl Counsel l lOXXXl(C) Adequacy of Representation 1 10XXX1(C)2 Particular Cases and lssues 110kl920 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 Law 110 €>=>1920 1 10 Criminal Law l lOXXXI- Counsel _ l lOXXXI(C) Adequacy of Representation . 110XXX1(C)2 Particular.Cases and lssues 110kl920 k.- Plea. Most Cited Cases ` Defense counsel's misinformation to murderdefendant as to his parole eligibility,~on which defendant relied in pleading guil'ty, constituted deficient performance, as element of ineffective assistance; parole eligibility requirements were presumptively mandatory, and counsel provided incor- va S< i"': ' fine-r@a;;'st? ; Abi'lszne C . . /-\loiler‘,e. .' 361 S.Wi.3d 684 (Cite as: 361 S.W.3d 684 ) rect advice. U.S.C.A. Const.Amend. 6; Vemon's AnnTexas C.C.P. art. 42.18(8)(b)(3) (Repealed). [16] Criminal Law 110'@1920 110 Criminal Law ' iioxxxl Counsel . l lOXXXl(C) Adequacy of Representation 1 10xxX1(c)2 Part16n1ar Cases and lssues 110kl920 k. Plea. Most Cited Cases 5 Defense counsel's misinformation to lmurder _ defendant as to his parole eligibility, on which defendant relied in pleading guilty, prejudiced defendant, and thus was ineffective assistance; portion of defendant's sentence that had be served before 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; Vemon's AnnTexas C.C.P. art. 42.18(8)(b)(3) (Repealed). ` *686 Rand Schaffer, Houston, for Appellant. y Andrew J. Smith, Asst. D.A., Houston, Lisa C. McMinn, State’s Attorney, Austin, for State. OPINION JOHNSON, J., delivered the opinion of the Court in which_PRlCE, 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. Moussazadeh v. S/a!e, 962 S.W.2d 261 (Tex.App.-l~louston'[l4th Dist.] 1998, pet, ref‘d) ( Mous.razadeh 1 ). Thereafter, applicant filed an application for habeas corpus relief. In a published opinion, we denied relief because applicant “failed 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 Fage 4 element of the plea agreement.” Ex parte Moussazadeh, 64 S.W.3d 404 ,.413 (Tex.Crim.App.ZOOl) , cert. denied, 537 U.S. 813 , 123 S.Ct. 74 , 154 L.Ed.2d 16 (2002) ( Moussazadeh II, #' AP~74,185). Applicant filed a subsequent application for writ of habeas corpus, Moussazadeh III, # APe76,439, that *687 asserts that trial counsel's mistaken advice regarding parole eligibility rendered his plea involuntary. We ordered the subsequent 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 decision 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(d). We now reconsider, on our own initiative, the claim raised in applicant's second application for writ of habeas corpus, Mc)us- .razadeh l[, and grant relief. App|icant's sub- ` sequent application, Moussazadeh III, is dismissed FNl. Applicant'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 outof-time appeal does not constitute a challenge to the conviction and does not bar subsequent writ applications Ex parte McPherson, 32 …S.W.3d ' 860, 861 (Tex.Crim.App.ZOOO). In Mc)ussazadeh II, we discussed how applicant, under indictment for a capital murder commit- v ted on September 12, 1993, pled guilty to the reduced offense of murder without a sentencing agreement, Applicant, a juvenile at the time of the offense, served as "‘1ook-out” while one of his three co-defendants shot and killed a man during a rob- . bety. Mnnssnzn¢_le/t 11, 64 s.w.3d at 406-07. while 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. 361 S.W.3d 684 (Cite as: 361 S.W.3d 684 ) ` ment.agreement. The agreement included applicant's promise to. testify at a co-defendant‘s trial, which he did. Id. at 407-09. During that ttestimony, applicant indicated that he understood that, in pleading guilty to the murder offense and because of parole-eligibility laws, he was facing a significantly'lesser term of imprisonment'than he' would have faced if convicted of capital murder. Ia'. at 408-09. After the co-defendant's trial ended, applicant was sentenced to seventy-five.years' incarceration without a deadly-weapon finding. Id. at 409. ` ` Applicant's claim in his previous writ application, which we now reconsider, asserted that “counsel‘s gross misadvice regarding parole eligibility 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 wasl involuntary even if the matter of parole eligibility was not implicitly incorporated in the plea agreement.” We quote from our opinion in Moussazadeh`[l. It is quite possible that no one in this proceed- .ing knew that the parole law had changed dramatically 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 l, 1993, a person serving a life sentence for capital murder was not eligible for parole until serving a flat 35 years. TEX.CODE CR.IM. PROC. Art. 42.18, § 8(b)(2). After September 1, 1993,- that person was not eligible for parole-until serving a flat 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 conviction 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. TEX.CODE CRIM. PROC.'Art. 42.18, § 8(b)(3). After September 1, 1993, a person whose conviction contained a deadly weapon finding was requiredto» serve a flat one-half *688.of the © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. :/1_;3§1§), 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 1, 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 fiat time equaled onequarter of the rsentence up to 15 years. TEX.CODE CRIM. 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. lndeed, 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 lThere is no evidence that the prosecutor ever discussed any specific 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 proves 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 Mn_us.tnzadeh 11, we he1d that a finding that parole eligibility formed an essential part of a plea agreement must be founded upon the express terms t of the written-plea~agreement»itself, the formal re- cord at the plea hearing, or the written or testimonial 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 v et 6 -__._;:;__ ~` ~ft'le-tc;;~»~'e:' ' n /"\lf;\_ll.i'j?f`l;- 361 S.W.3d 684 (Cite as: 361 S.W.3d 684 ) agreement made between the prosecution and applicant.” lcl. at 413. We therefore “den[ied] applicant relief because he failed to' prove, by a preponderance of th'e evidence, that his plea Was inv duced by a misunderstanding of the applicable parole law which formed an essential element of the plea agreement.”.]d. 'Acknowledging ourprior hold- ings that_a guilty plea is not rendered involuntarysimply because the defendant received and relied upon erroneous advice of counsel concerning parole eligibility, and that both parole eligibility and parole attainment are highly speculative future facts, we likewise rejected applicant's contention that his plea was involuntary regardless of whether the parole eligibility misinformation Was implicitly incorporated into the plea agreement .Id. at 413-_14. The circumstances surrounding applicant's conviction 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 M<)ussclzadeh 1], “The affidavits Submitted by both applicant and his trial counsel with his habeas application state that they did not know of these [recently effective] statutory changes [in the paroleeligibility law]. lndeed, we may fairly infer from the record that the judge, prosecutor, and counsel ‘ for [the co-defendant against whom applicant testified] shared the same misunderstanding.” Moussazaa’eh 11l 64 S.W.3d at 410 . [3][4][5] Counsel‘s advice can provide assistance so ineffective that it renders a guilty plea involuntary. *689_]*11`// v. Loc/thart, 474 U.S._52, 56, 1:{ 06 S.Ct. 366 ,` 88 L.Ed.2d 203 (198_§) (quoting MciMann v. Rl`chardson, 397 U.S. 759, 771 , 90 S.Ct. _ `1'441, 25 L.Ed.2d 763 (1970); “vnhtntanness dr 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 ineffective assistance of counsel. Ex parte Burns, 60'}1 `r_S.W.2d 370, 372 (Tex.Crini.App.1980):. A'defendant's decision to plead guilty when based upon erroneous 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‘I-]arringlon, 310 S.W.3d 452, 459 ('l`ex.Crim./-\pp.2010) (“When counsel's representation falls below this [ ~Strickland ] standard, it renders any resulting guilty plea involuntary.”). Applicant's initial application contended that “counsel's gross misadvice regarding parole eligibility rendered applicant's guilty plea involuntary,” “the matter of parole eligibility was implicitly incorporated 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 Pa’- diI/a v. Kentuc/ty, 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 Mvussazadeh II. The state contends that-Padilla _has no bearing upon the Court's disposition of applicant's claim j and that Ex parte Evans and Mt)ussazadeh 11 are “still based upon sound logic regarding parole eligibility and parole attainment as being highly speculative circumstances that does [sic] not render a guilty plea involuntary.” 1 We conclude that both applicant and the state are partly correct: padilla is not applicable to the facts before us, and our decisions in _Ex parte Evans and Mous.razadeh 11 were incorrect. We now dis- , avow our prior decisions in Ex parte Evans and Moussazda'eh ll to the extent that they (1) require ‘parole-eligibility misinformation to form dan'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 © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 361 S.W.3d 684 (Cite as: 361 S.W.3d 684 ) not render a plea involuntary Ex parte Eva_ns, 690 S.W.2d at 279 . However, E\)ans stated that, because “eligibility for parole is a fluctual [sic] societal de_ cision; highly subject to change," id. at 278,`§{:_anjap-§i` tp'licant must-prove, by a preponderance of the evi;dji xence,,_tha`£_§-par<')jle` eligibility was an affirmative pari or essential element of the plea bargaii_i. Id. This is an incorrect statement of the law. While the ' general eligibility rules for parole may change over time, the§eiigibility-rules"remain the same for a 'giv§ en conviction Likewise, an inmate who was eli- gible for mandatory release at the time of the of- _ ~ fense remains eligible for mandatory release on that conviction, even if that offense subsequently becomes eligible for only discretionary mandatory re- v lease “The statute in effect when the holding offense is committed determines an inmate's eligibility for release on mandatory*690 supervision or parole.”§Exr»partele-Thomps_on, ’ = l 73 `-S.'W.~3 d» 458,' 459 (Tex.Crini.App.ZOOS)j;; Evans held that, because parole attainment was Speculative, its “1egal importance on the subject of voluntariness of a guilty plea” should be “discounted,” ~Ex parte-Evans, 690 S.W.2d at 279§, Then,_ based on its incorrect statement of 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 lnot render a plea involuntary Id. In Moussazadeh II, we further conflated the concepts of eligibility and attainment v t n 1 FN2. .See also Ex parte Tr_ahqn, 78‘_1` *`s.W.zd 291, 292_93 _(Tex.Crnn.App.wss) ` (written plea memorandum reflected thatapplicant would'become eligible for parole consideration after having served onefourth of sentence; habeas relief available when thatiwas not the law and terms of pleaagreement 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- ` © 2012 Thomson Reuters. No Claim to_Orig. US Gov. Works. 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 sentence.' It is for this reason that we have termed parole attainment “too speculative to warrant being given effect upon” a defendant's guilty plea, 64 »S.W.3d at 413, quoting Evans, supra [7][8][9]{10] Contrary to our prior decisions, there _are considerable concrete distinctions between parole attainment and parole eligibilityl Parole attainment is indeed highly speculative due to various factors associated with circumstances surrounding an individual prisoner's parole application, 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.” See,Ex..pa):te Carillo, 687 S..W.2d 320, 325 ('I`ex.Cri1n.App.l985) (Miller, J.i concurring). The question of parole eligibility, however, elicits a straightforward answer because an applicant's parole eligibility is determined by the law in effect on the date of the offense Ex parte Thompson, 173 S.W.3d at 459. 'l`he statutes that govern the punishment of a particular offense control the issue of parole eligibility and are not_subject to alteration, absent legislative amendrnent. Even in the event of a legislative amendment making a law more stringent, an applicant is subject only to the law governing parole eligibility at the time the offense was committed See "Ex parte Alegria, 464 S.W.2d 868 , . 874-75 (Tex.Crim.App.l97l>) (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 Constitutions). Parole-cligibility requirements are direct consequences because they are a definite and largely automatic result of a guilty _ plea. See_ Mi¢.§¢h/te-v. sra/e,_ 1_29_ §.wsd___130,13’5`_; (Tex.Crim.App.2004): Parole attainment, -on the other hand, is not governed by statute and is granted at the discretion ofthe parole board ' FN3. A law that changes the punishment ;\,,1_@'_,_,. _ . 361 S.W.3d 684 ' (Cite as: 361 S.W.3d 684 ) for a crime after the crime has been committed 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.l97l) '(op. on reh'g)§ Ex . parte Scoll, 471 _ S.W.2d ‘54, 55-6 (Tex.Criin.App.l97l). “[A] statute which mitigates the rigor of the law,in force§at the time`ii crime was committed cannot be .regarded as ex post facto with reference to l that crime” Rooney v. No/'Ih Dakota, 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` .S`trick/ana’ protocol as expressed in these cases may be stated generally as “but for the erroneous advice of counsel, the applicant*69l would not have plead guilty." Eir parte Ha/')'ington, 310 S.W.3d at 458 . See also Ex parte Moody, 991 S.W.2d 856, 858 (Tex.Crim.App.l999) ; Ex parte Stephenson, 722 S.W.2d 426, 428 ('l`ex.Crim.App.l987). [l l] When deciding whether to accept or reject a plea offer, a defendant Will likely consider the actual minimum amount of time he will spend incar- cerated. In 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 collateral 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 Stric/t[ana'. [12] To obtain habeas corpus relief on a claim . `.of involuntary plea, .an ,applicant_ must .meet both prongs ofthe Stric/tlanc/ 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 » but for counsel['s] deficient performance.” Ex parte4 _ Whire, 160 s.w.3d 46_, 49 (r@x.Cri'tn./tpp.2004). 1n § Page 8 the context of involuntary plea, the “different outcome” is choosing not to plead and instead choosing to go to trial [13][14] Counsel‘s performance is deficient if it is shown to have fallen below an objective standard . " of reasonableness Id. at 51; Strick/and v. Was/ungton, 466 U.S. 668, 687-88 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984). The constitutionally appropri- ate level of reasonableness is defined by»the practices and expectations of the legal community and prevailing professional norms therein Strick/ana', supra, at 688, 104 S.Ct. 2052 . In situations in which the law is not clear, counsel should advise 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‘»failure to provide correct information and proi/iding incorrect 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 paroleeligibility requirements simply by reading the text of the statute lnstead, applicant's counsel failed to _ inform him of changes in the parole-eligibility stat- utes that essentially doubled the length of time he must serve‘before becoming eligible for paro_le.`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 statutory terms Those terms of parole eligibility were clear, succinct, and expli‘cit. lt appears that all parties involved were _un- © 2012 Thomson Reuters No Claim to Orig. US Gov. Works. 361 S.W.3d 684 (Cite as: 361 S.W.3d 684 ) aware that parole eligibility had changed significantly just a few days before the commission ofthe alleged offense The performance'of applicant's counsel was deficient: the consequences of applicant's plea could have been easily determined by reading the applicable statute. Parole-eligibility requirements are presumptively mandatory, and applicant's trial counsel provided eincorrect 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 parole was double the portion that he was led to believe he must serve Based on applicant's affidavit of January 13, 1997, we also conclude that applicant wi`)uld 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. “Ijlad ‘Judge Azios; Mr. Jones, or Mr.' C‘;ogdell§;,;t‘old`mel 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, 1 would not have accepted the plea bargain.” v Accordingly, upon reconsideration we grant relief. Thejudgment in this cause is hereby vacated, and-applicant 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 KELLER; P.J., filed a concurring opinion MEYERS, J., did not participate © 2012 Thomson Reuters. No Claim to Orig.tUS Gov. Works. "\~l~`llf"’"i _ Page 9 KELLER, P,J., concurring ln overruling Ex parte Evans,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 retroactive effect on.collateral review in situations not allowed under Teague. Nevertheless, with -respect to the new Confrontation Clause holding articulated in Crau_)/ora' v. Washington,‘ we applied the rule in Teague'to bar retroactive application on habeas corpus The Court does not conduct a retroactivity analysis in this case, and 1 do not know its reason for making the new rule retroactive._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 exceptions_articulated in Teague or state-created-~apply in the present case? lf the Court is going'to overrule prior precedent on habeas review, as it does here, l believe that it should clearly explainhow this fits into our retroactivity jurisprudence FNi. 690 (Tex.Crim.App.1985). sw.zd 274 FNZ. Teague v. Lane, 489 U.S. 288 , 109_ S.Ct. 1060, 103 L.Ed.2d 334 (1989). FN3. Danforth v. Minnesota, 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.2d 177 '(2004). 'FNS. ane, 257 s.w.3d at `237; Ex parte Keirh, 202 S.W.3d 767 (rex.cnm.App.2006). There is an easier way to resolve this case . During the plea colloquy, the trial judge was pre- pared to make a deadly ~weapon finding, but the liles-§§ 5761` iii _ 361 S.W.3d 684 _(Citc as: 361 S.W.3d 684 ) v 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 agreement. This_explanation was consistent with the parties agreeing *693 that applicant would have his chance, after cooperating with the State, to persuade the trial judge to make his ' time “non-aggravated,” i.e~ subject to more generous parole-eligibility rules available to non~3g offenses . l But less than two weeks before the 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 anew trial FN6. See Ex parte Moussazadeh, 64 S.W.3d 404, 408 (Tex.Crim.App.ZQOl). FN7. See TEx.coDE cRrM. PRoc. art. 42.12 § sg; rEx. oov'T coDE § 508.145(<1). FN8. Moussazadeh, 64 S.W.3d at 409 . FN9. The habeas judge also found that ap- _ pellant would not have pleaded guilty absent 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 eligibilii_y]¥voas an essential element of the plea bargain.” We cited no authority for this “inference-stacking” holding, and 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 given in Evans, we said in that cases FN10. Id. at413. FNI l. See id. No overt sanctioning of this advice by the judge or the prosecutor appears in the record and it doesr not appear to have been a part of the plea bargain We realize that it is common for the parties to play t_he guessing game of parole eligibility in plea negotiations We decline, however, to elevate this common practice to the status of an element of the plea bargain without some further indication from the record evidencing that status We conclude, then, that we are not dealing with a broken or impossible plea bargain situation a ' ' FN12. 690 sw.zd at 277. Unlike in Evans, there was overt sanctioning of the attorney's advice by the judge and the prosecutor, or at least the habeas court'could so rationally conclude, as it has done Thus, we'simply misanalyzed_the issue under Ei)ans, and it is appropriate for us to reconsider the issue now.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 in addressing the sufficiency of the evidence to support a conviction FN13_. §Hooper v. State, 214 S-.W.3d 9, 16.-`17 (Tex.Crim.App.2007). If it were necessary to decide whether Hoope/"s'pro-_ nouncement regarding inference stacking ' constituted a,_new 2rule under .Teague, .1 would hold that it doesnot, because, regardless of the scope ofil`exas's version of v Teague's proscription against announcing new constitutional rules of criminal pro- ' cedure on habeas see Danfo/'Iii, supra, suc_h a proscription cannot apply to basic © 2012 Thotnson Reuters. No claim to ong. Us Gov. works 361 S.W.3d 684 (Cite as: 361 S.W.3d 684 ) standards of habeas practice Otherwise a court could never change its procedures or standards on habeas Finally, l 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. ’ln this case, it is enough to hold that, if counsel does convey this type of information, he must do so c_orrectly. Here, the information was incorrect. FN14. “Both failure to provide correct information and providing incorrect information violate that duty[.]" Court's opinion at 691. Although l agree that applicant is entitled to a new trial, 1 do notjoin the Court's opinion l concur in the Court's judgment ' Tex.Crim._App.,2012.' Ex Parte Moussazadeh 361 S.W.3d 684 ' END oF DocUMENT © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. j Page 11 -:_~;-,».~:.'»`\ No. ND 5591 (Single Count) TRN 010 107 3208 THE STATE OF TEXAS v. JAMES ALLEN PELLOAT, DEFENDANT ' ' §I_Q: TX § § § F`lLED FOR RECUli'D IN THE 1-A JUDICIAL DisTchr coURr or;t NEWTON coUNTY; .: illREE ALLEN 151 T ClEftii 011 0 7 , JUDGMENT oF CoNvlchoN BY COURT; SENTENCE TO Institutional Division. TDCJ DATE oF JUDGMENT; JUDGE~PRESIDING; ArToRNEY FoR THE srArE; ATTORNEY FoR THE DEFENDANT; O_FE_I`£SE S'l`A'l`UTE FOR OFFENSE; _ DEGREE OF OFFENSE: APPLICABLE PUNISHMENT RANGE tincluding enhancements if any): DATE OF OFFENSE: CHARGING INSTRUMENT: TERMS OF PLEA AGREEMENT 11N DETAIL}: _PC_EA_TQQ\M_S_E PLEA TO ENHANCEMENT ' PARAGRAPH§S): VERDICT FOR OFFENSE: FINDING ON ENHANCEMENT: AFFIRMATIVE FINDING ON DEADLY WEAPON: OTHER AFFIRMATIVE SPECIAL FINDINGS: DATE SENTENCE IMPOSED: PUNISHMENT AND PLACE OF CONFINEMENT: TlME CREDITED TO SENTENCE: March 24, 2005 Monte D. Lawlis A. W Davis, Jr. William S. Morian, Jr. lmproper Re|ationship 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&pg:(cases, all 2"d Degree Felonics: No. ND-599l, lmproper Re|ationship (2|.12 P.C.); ND-§sSe,-Sexuaf-Assault-(-H-\OI-l-P=€-.)? ND-5593, Sexual Assault (21.011 P.C.); ND-5594 lmproper Re|ationship (21.12 P.C.); and ND-5617 Sexual Assault (2!.0|1 P.C.), reduced from Aggravated Sexual Assault (22.021 P.C.). Case No. ND-5618, lmproper Re|ationship (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-5992 and the sentence in c se No. ND-5617 to run consecutively The sentences in the 336 remaining cases are to run concurrently De|'endant 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 'I`wenty (20) years in the Institutional Division-TDCJ, and §§ fine 138 days DSZ: Judgmcnt of Conviction by Coun; Dircct Scmcnce, Cause No. ND 5591; Page 1 of 3 Pages 211511111 211 1=> ga 32 FILED FOR RECoRB No. ND 5593 (Single Count) TRN 010 107 3208 2005 HAR 214 13 2: 3 3 IN THE 1_A mmch THE STATE OF TEXAS v. § DISTRICT coURT @FI‘ `JAMES ALLEN PELLOAT, NEWTON COUN'W;~¥E x DEFENDANT SI_D: TX JUDGMENT OF CONVICTION BY COURT; SENTENCE TO Institutional Division. TDCJ DATE OF JUDGMENT: W ATroRNEY FoR THE sTATE: ATroRNEY FOR THE DEFENDANT: MS£ sTATUTE FOR oFFENSE; DEGREE OF OFFENSE; APPLICABLE PUNISHMENT RANGE (inc|uding enhancements, if any): DATE OF OFFENSE: CHARGING INSTRUMEN,'E 'I`ERMS OF PLEA AGREEMENT §IN BE'I`AIL): _ PLEA To 0FFENSE: PLEA To ENHANCEMENT PARAGRAPH(s): vERDIcT FOR oFFENsE: FINDING oN ENHANCEMENT; AFFIRMATIVE FINDING 0N DEADLY wEAPoN; OTHER AFFIRMATIVE sPEcIAL FINDINGS: DATE sENTENcE IMPOSED: PUNISHMENT AND PLACE 0F ' coNFer§MENT; TIME CREDITED TO SEN'I`ENCE: COURT COSTS: March 24, 2005 Monte D. Lawlis A. W Davis, Jr. William S, Morian, Jr. Sexual Assault Section 22.011, Penal Code Second Degree Felony Second Degree 2-20 yrs in prison/max $l0,000 fine November 7, 2004 . Indictment ‘ - few James Allen Pelloat will plead gullty to the following cases, all 2"d Degree Felonies: No. ND-5991, lmproper Re|ationship (21.12 P.C.); ND~5593, Sexual Assault (21.011 P.C.); ND~5594 lmproper Re|ationship (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-56l8, lmproper Re|ationship (21.12 P.C.) will be dismissed. Tlie defendant will receive a sentence of twenty (20) years on each of the é~°e“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 concurrent|y. Defendant will receive credit for time ' served in the Newton County Jail in the amount of 138 days Guilty Not Applicable ' Guilty ` Not Applicable Not Applicable Not Applicable March 24, 2005 Twenty (20) years in the Institutiona| Division-TDCJ, and M fine 138 days . None DSZ: Judgment of Conviction by Coun; Direct Sentcnce, Cause No. ND 5593; Page l of 3 Pages No. ND 5594 (single Coum)TRN 010 107 3208 THE STATE OF TEXAS v. JAIv[ES-ALLEN PELLOAT, DEFENDANT _S_I_Q: TX F'¢'LED‘FUR REcoRn ' 2005 MAR 211 13 2= 33 IN THE 1-A JUDICIAL -» DISTRICT C0URT 01=,;=_=_;,~§~§ NEWTON coUNTY, m JUDGMENT OF CONVICTION BY COURT; SENTENCE TO Institutional Division, TDCJ' DATE OF JUDGMEN'I`: JUDGE PRESIDING: ATTORNEY FOR THE STATE; _ - ATTORNEY FOR THE DEFENDANT: MM STATUTE FOR OFFENSE: DEGREE OF OFFENSE: APPLICABLE PUNISHMENT RANGE (including enhancements, if any)f . DATE OF OFFENSE: CHARGING INSTRUMENT: TERMS OF PLEA AGREEMENT DETAIL : PLEA TO OFFENSE: ,PLEA TO ENHANCEMENT . ,_ PARAGRAPH(S [: VERDICT FOR OFFENSE: FINDING ON ENHANCEMENT: AFFIRMATIVE FINDING ON DEADLY ' WEAPON: OTHER AFFIRMATlVE SPECIAL FINDINGS: DATE SENTENCE IMPOSED: PUNISHMEN'I` AND PLACE OF CONFINEMENT: TIME CREDITED‘TO SENTENCE: March 24, 2005 Monte D. Lawlis A. W Davis, Jr. William'S. Morian, Jr. lmproper Re|ationship Between an Educator and 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&rcases, all 2"" Degree Felonies: No. ND-599l, lmproper Re|ationship (2|.12 P.C.); Writ-Assault (21.011 P.C.); ND-5593, Sexual.Assault (21.011 P.C.); ND-5594 lmproper Re|ationship '(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 Re|ationship (21.12 P.C.) will be 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~S617 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. Guilty ' Not Applicable Guilty Not Applicable Not Applicable Not Applicable March 24, 2005 Twenty (20) years in the Institutional Division-TDCJ, and E_g fine 138 days ' DS2: Judgmem of Conviclion by Coun; Dircct Scntence, Cause No. ND 5594; Page l of 3 Page¢ l'_lQR-23-@6 11:58 QM DISTRICT CLERK No. ND 5617(sing1¢ comm TRN 010 107 3208 THE sTATE or TEXAS § v. . JAMES ALLEN PELLOAT, § DEFENDANT SI__D: TX § _ 499 379 9@8?. ‘.F’-'32 1050 FOR REcoRu 2005 nn 20 F> 232 v IN THE l-A JUDICIAL` 51:!;E,'.\1_LEN - DISTRICT COURT OEE'vv[izc)S:incTn'Crli/FRK 13 NEWTON cOUNWET§XAM JUDGMENT OF CONVICTION BY COURT; SENTENCE TO,Insnrucional l)ivision, TDCJ DATE OF`J[JDQM§N 1 ', ' JLJD§§E PRESIDING: ATTORNEY FOR THE STATE: ATTORNEY EQR THE DEFENQANT: . MM sTATUTE FOR' oFFENsE; E REE FENSE: D_Q_Q£_Ql"____ APPLICABLE PUNI§ HMENT RANGE U_£lll£.tnhmmmsms._if_gnyl `nclu ' : l DATE OF OFFENSEZ CHABQING INSTRUMENTZ TERM§ .QF PLEA AGREEMENT le DETML):' _ consecutively The sentences in the , PLEA T ENSE: ELEA TQ §NHANCEMENT FARAGRAPH S : V ICTF R FF SE: `FINDIN oN ENH T. _Q__ANQEM§L 4 AFFIRMAT!X§ FINDMQ on DEADL WEAPON: organ AFF;MATWE SPECIAL FINDINGS: DATE §ENTENCE IMPQ§§Q; PUNTSHMENT AND.PLACE OF _ goNFn~rEMENT: _ T;M§ cREDITED To §ENIENCE: COURT COSTS: March 24, 2005 , Monte D. Lawlis A. W Davis, Jr. - Williat_n S. Morian, Jr'. Sexual Assault Section 22.011, Penal Code Second Degree Felony Second Degree 2-20 yrs in prison/max $10,000 fine On or about May 01, 2002. Indictment James Allen Pelloat will plead guilty to the following-M&S€S, _ all Z"d Degree Felonies: No. ND-599l, improper Relatlonshlp` (21,12 P,C.); _ , ND`-5593,: Sexual Assault (21.011 P.C.); ND-5594 lmproper Relatlonship_ _ (21.12 P.C.); and ND-$61'7 Sexual Assault (21.011 P.C-). reduced from Aggravated Sexual Assault (22.021 P.C.). Case_ No. ND-5618, lmproper Relatlonshlp (21.12 P.C.) . will be` dismissed. The defendant wi'lJ receive a sentence of twenty (20) years on each of the-§§ cases, with the sentence in case No. ND-5992 and the sentence in c e No. Nn.salv co run remaining cases are' to run concurrently. Del'endant Wi_ll receive credit for time ' served in the Newton County Jail in the amount of 138 daysl Guilty Not Applicable Guilty Not Applicable Not Applicable Not Applicable March 24, 2005 'I\rve_nty (20) years in the ' ' Institutional Division-TDCJ, and _N_q fine 138 days None DSZ: Judgmcnt of Conviction by Coun; Direct Sentence, Cause No. ND 5617; Page l of3 Pag¢s ,