Application for writ of habeas corpus to the honorable judge of said court: comes now



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May 18, 2016 Cause No. 123456

THE STATE OF TEXAS § IN CRIMINAL DISTRICT

§

VS. § COURT NUMBER THREE



§

JOHN DOE § TARRANT COUNTY, TEXAS


APPLICATION FOR WRIT OF HABEAS CORPUS
TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW, JOHN DOE, hereinafter referred to as “Applicant”, by and through his attorney of record, ____________________, hereinafter referred to as “Petitioner”, and pursuant to article 11.072, Texas Code of Criminal Procedure, and submits this, his Application for Writ of Habeas Corpus complaining as follows:

Applicant, JOHN DOE, is illegally restrained of his liberty by THE HONORABLE ELIZABETH BERRY, PRESIDING JUDGE OF CRIMINAL DISTRICT COURT NUMBER THREE OF TARRANT COUNTY, TEXAS, by being currently subjected to terms and conditions of community supervision for the offense of driving while intoxicated - felony repetition in cause number 123456, based upon a plea of guilty that was not freely and voluntarily entered, that was the result of ineffective assistance of counsel, and for which the evidence was legally insufficient to support conviction, and because this Court did not properly have jurisdiction over the case, in violation of the laws of the State of Texas, including the Texas Code of Criminal Procedure, and his rights as guaranteed him by article I, section 10, and article I, section 19 of the Texas Constitution, and the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, and in support of the same, Petitioner would show this Honorable Court as follows:

I.

Applicant, JOHN DOE, is restrained of his liberty pursuant to article 11.01, Texas Code of Criminal Procedure, in that he is currently subject to terms and conditions of community supervision.



II. FACTUAL BACKGROUND

A) The New DWI Offense – Cause Number 123456

On May 7, 2002, Applicant was indicted for the offense of driving while intoxicated – felony repetition in cause number 123456. The Indictment in the instant cause alleges that Applicant committed the new DWI offense “on or about the 22nd day of February, 2002.” Further the Indictment alleges two prior DWI convictions: an April 26, 1990, conviction in cause number 11111 from County Criminal Court Number One of Tarrant County, and a December 28, 1978, conviction in cause number 22222, from County Criminal Court Number Four of Tarrant County.

On June 17, 2002, Applicant pleaded “guilty” to the charge of driving while intoxicated and “true” to both enhancement allegations. Pursuant to a plea agreement, this Court sentenced Applicant to five (5) years in the Institutional Division of the Texas Department of Criminal Justice, probated for seven (7) years, with various terms and conditions of probation.

Applicant was represented by the Honorable Eduardo Smith and the Honorable Armando Jones in the plea proceeding.



B) The 1989 Prior Conviction – Cause Number 11111

A review of documents in possession of the Tarrant County Clerk’s Office reveals that Applicant was arrested on October 7, 1989, for the offense of driving while intoxicated. By an Information filed October 11, 1989, Applicant was formally charged with the offense of driving while intoxicated in cause number 11111. On April 26, 1990, Applicant pleaded guilty to driving while intoxicated and was sentenced to 90 days in the Tarrant County Jail probated for two years. Applicant was released, or “discharged”, from probation in cause number 11111 on April 30, 1992.



C) The 1978 Prior Conviction – Cause Number 22222

A review of a Judgment and Sentence in possession of the Tarrant County Clerk’s Office along with the information contained in the Tarrant County Clerk’s Office Computer System reveals that Applicant was arrested on October 10, 1978, for the offense of driving while intoxicated. By an Information filed October 11, 1978, Applicant was formally charged with the offense of driving while intoxicated in cause number 22222. On December 28, 1978, Applicant pleaded guilty to driving while intoxicated and was sentenced to seven (7) days in jail. Applicant completed serving that sentence on approximately January 19, 1979.



III. CLAIMS

A) The State Could Not Use Applicant’s 1978 Prior Conviction to Enhance the New DWI Conviction

For offenses committed after September 1, 2001, (the Indictment in cause number 123456 alleges an offense date of February 22, 2002), the relevant portion of the DWI enhancement statute provides:

(e) . . ., a conviction may not be used for purposes of enhancement under this section if:
. . . .
(2) the offense for which the person is being tried was committed more than 10 years after the latest of:
(A) the date on which the judgment was entered for the previous conviction;
(B) the date on which the person was discharged from any period of community supervision on which the person was placed for the previous conviction;
(C) the date on which the person successfully completed any period of parole on which the person was released after serving a portion of the term to which the person was sentenced for the previous conviction; or
(D) the date on which the person completed serving any term for which the person was confined or imprisoned for the previous conviction; and
(3) the person has not been convicted of an offense under Section 49.04, 49.05, 49.06, 49.065, 49.07, or 49.08 or any offense related to operating a motor vehicle while intoxicated within 10 years of the latest date under Subdivision (2).

Tex. Penal Code Ann. § 49.09(e) (Vernon 2003) (emphasis added).1

Prior to September 1, 2001, the statute provided:

(e) A conviction may not be used for purposes of enhancement under this section if:
(1) the conviction was a final conviction under Subsection (d) and was for an offense committed more than 10 years before the offense for which the person is being tried was committed; and
(2) the person has not been convicted of an offense under Section 49.04, 49.05, 49.06, 49.065, 49.07, or 49.08 or any offense related to operating a motor vehicle while intoxicated committed within 10 years before the date on which the offense for which the person is being tried was committed.

Act of June 19, 1993, 73 Leg., R.S., ch. 900, § 1.01, 1993 Tex. Gen. Laws 3588, 3697-98, amended by Act of May 11, 1995, 74rdth Leg., R.S., ch. 76, § 14.56, 1995 Tex. Gen. Laws 458, 841, amended by Act of June 7, 1995, 74th Leg., R.S., ch. 318, § 21, 1995 Tex. Gen. Laws 2734, 2742-43, amended by Act of June 19, 1999, 76th Leg., R.S., ch. 1364, § 12, 1999 Tex. Gen. Laws 4606, 4610 (emphasis added) (current version at Tex. Penal Code Ann. §§ 49.09(e) (Vernon 2003)).

Under the plain language of the prior statute, the State could use any prior conviction for the purposes of enhancement, regardless of how old it was, so long as they could prove one conviction for an offense committed within 10 years before the offense date of the offense for which the person was being tried. E.g., Smith v. State, 1 S.W.3d 261, 263 (Tex. App.–Texarkana 1999, pet. ref’d) (“The statute requires the State to prove only one prior D.W.I. conviction in the ten-year period and one other prior D.W.I. conviction, not subject to the ten-year limiting period.”).

However, under the new statute that applies to this case, the ten-year period runs from a date related to the conviction the State is attempting to use for enhancement, not the offense date of the newest offense. In this case, the relevant time is that specified in section 49.09(e)(2)(B), i.e., the date that Applicant was released from probation in cause number 11111, April 30, 1992. Using that date, it appears clear that the 1989 conviction can be used to enhance the new DWI offense: the new offense was “committed” on February 22, 2002, which is not “more than ten years after” April 30, 1992.

However, the State could not use the 1978 prior conviction to enhance the new DWI offense. The relevant triggering date for the 1978 prior conviction is specified in section 49.09(e)(2)(D), Texas Penal Code, i.e., the date that Applicant was finally released from incarceration in the County Jail for his conviction in cause number 22222, January 19, 1979.

Using that date, it is clear that the 1978 conviction could not be used to enhance the 2002 offense: the new offense was “committed” on February 22, 2002, which is “more than ten years after” January 19, 1979, and Applicant was not convicted of his second offense until April 26, 1990, which was not “within 10 years of” January 19, 1979. See Uriega v. State, No. 04-03-397-CR, slip op., 2004 WL 431472 at * 3 (Tex. App.–San Antonio March 10, 2004, no pet. h.) (“§ 49.09(e), as amended September 1, 2001, prohibits the use of a prior DWI conviction if the defendant committed the charged DWI more than ten years after the [date specified in section 49.09(e)(2)] of the prior DWI and if the defendant was not convicted of another intoxication related offense within that ten year period”); Anderson v. State, 110 S.W.3d 98, 99 (Tex. App.–Dallas 2003, no pet.) (current version of section 49.09(e) “prohibits the use of a prior DWI conviction for enhancement if the defendant committed the charged DWI more than ten years after the [date specified in section 49.09(e)(2)] of the prior DWI and if the person was not convicted of another DWI within the ten-year period”).

Accordingly, because Applicant’s prior conviction in cause number 22222 could not lawfully be used to enhance the instant driving while intoxicated case, the most serious offense that Applicant should have been punished for was an enhanced Class A misdemeanor under section 49.09(a), Texas Penal Code. Therefore, the Judgment in cause number 0836316D is illegal and should be vacated.

B) Applicant’s Plea Was Not Knowingly and Voluntarily Entered

At the time that he entered his plea of guilty in cause number 123456, Applicant was not aware that his prior conviction in cause number 22222 could not be lawfully used to enhance the driving while intoxicated charge in cause number 123456 to a third degree felony. Had he known that the prior conviction in cause number 22222 could not be used for that purpose, Applicant would not have entered a plea of guilty and accepted a felony punishment.

Due process, as guaranteed by the Fourteenth Amendment, prohibits a trial court from accepting a guilty plea, and the corresponding waivers of a defendant’s Fifth and Sixth Amendment rights, unless the plea is knowingly and voluntarily entered. E.g., Boykin v. Alabama, 395 U.S. 238, 242-44 (1969). Because Applicant was not aware that the State could not use his conviction in cause number 22222 to enhance the allegation in cause number 123456 to a felony, Applicant’s plea of guilty was not knowing and voluntary in violation of Applicant’s Constitutional Right to Due Process. Accordingly, the judgment in cause number 123456 should be vacated.

C) Applicant’s Plea Was the Result of Ineffective Assistance of Counsel

Applicant was represented by the Honorable James Smith and the Honorable James Jones in cause number 123456. Prior to the entry of Applicant’s plea of guilty to the felony charge, neither Mr. Smith nor Mr. Jones advised Applicant that there was any possible legal argument to make that he could not be convicted of a felony.

The Sixth Amendment to the United States Constitution guarantees a criminal defendant the right to effective assistance of counsel in plea proceedings. U.S. Const. amend. VI; Strickland v. Washington, 466 U.S. 668, 687 (1984); McMann v. Richardson, 397 U.S. 759, 770-71 (1970); Ex parte Morrow, 952 S.W.2d 530, 536 (Tex. Crim. App. 1997) (discussing Strickland and McMann); Ex parte Wilson, 724 S.W.2d 72, 73 (Tex. Crim. App. 1987) (“there is no doubt that an accused is entitled to effective assistance of counsel during the plea bargaining process”). An attorney must give advice that is “within the range of competence demanded of attorneys in criminal cases” to a criminal defendant who is deciding whether or not to accept a plea bargain. Hill v. Lockhart, 474 U.S. 52, 56 (1985) (quoting McMann, 397 U.S. at 771).

In addition to conveying all plea offers to the defendant, defense counsel has an affirmative duty to convey reasonable information about the plea offer, its possible consequences, and the defendant’s legal alternatives so that the defendant can make an informed decision as to whether or not to accept the plea offer. See Von Moltke v. Gillies, 332 U.S. 708, 721 (1948) (“Prior to trial an accused is entitled to rely upon his counsel to make an independent examination of the facts, circumstances, pleadings and laws involved and then to offer his informed opinion as to what plea should be entered.”); United States v. Barnes, 83 F.3d 934, 939-40 (7th Cir. 1996) (“It is deficient performance for an attorney to fail to provide good-faith advice about the sentencing consequences of a guilty plea. . . . . If this deficiency proves to be a decisive factor in a defendant’s decision . . . the defendant has lost the full benefit of his Sixth Amendment rights . . . .”); Teague v. Scott, 60 F.3d 1167, 1170 (5th Cir. 1995) (“In determining whether or not to plead guilty, the defendant should be made aware of the relevant circumstances and likely consequences so that he can make an intelligent choice.”); United States v. Day, 969 F.2d 39, 43 (3d Cir. 1992) (“[A] defendant has the right to make a reasonably informed decision whether to accept a plea offer.”); Beckham v. Wainwright, 639 F.2d 262, 267 (5th Cir. 1981) (where issue is whether to accept plea bargain or not, “the attorney has the duty to advise the defendant of the available options and possible consequences”).

Defense counsel also has an affirmative duty to familiarize himself with the law and to reasonably inform the defendant about the application of that law to the defendant’s situation so that the defendant can make informed decisions about how to proceed. E.g., Ex parte Battle, 817 S.W.2d 81, 83-84 (Tex. Crim. App. 1991) (counsel ineffective for failing to advise defendant that judge could not assess a probated sentence in advising defendant to waive jury and plead guilty).

In this case, neither Mr. Smith nor Mr. Jones advised Applicant about the proper application of section 49.09(e), Texas Penal Code to his case. Had Applicant’s trial counsel properly advised him, he would not have entered a plea of guilty to the felony charge and the result of this case would have been different. Accordingly, this Court should vacate the judgment in cause number 123456.



D) The Judgment in Cause Number 123456 is Void Because This Court Acted Without Jurisdiction

Because there was no statutory authority for the State to use Applicant’s prior conviction in cause number 22222 to enhance the allegation in cause number 123456 to a felony, the Indictment in cause number 123456 only alleged a misdemeanor offense and this Court never properly acquired jurisdiction over cause number 123456. See Getts v. State, No. 12-03-047-CR, slip op., 2003 WL 22456104 (Tex. App.–Tyler October 29, 2003) (mem.) (not designated for publication2) (analyzing case under current section 49.09(e) and holding that “Because the indictment alleged a conviction that could not be used for purposes of enhancement to a felony, it only alleged a misdemeanor DWI. . . . Therefore, the district court did not acquire jurisdiction of this offense, and was required by law to transfer the cause to a court having misdemeanor jurisdiction.”), reh’g denied, Getts v. State, No. 12-03-047-CR, slip op., 2003 WL 22956392 (Tex. App.–Tyler December 16, 2003, no pet.) (mem.) (not designated for publication).

Because this Court did not have jurisdiction, the Judgment entered on Applicant’s plea of guilty is void and should be vacated. E.g., Ex parte Waggoner, 61 S.W.3d 429, 431 (Tex. Crim. App. 2001).

WHEREFORE, PREMISES CONSIDERED, Applicant PEDRO MURIEL, respectfully prays that this Honorable Court:

(1) Conduct a hearing on the allegations contained in this Application. See Tex. Code Crim. Proc. Ann. art. 11.072, § 6(b) (Vernon Supp. 2004).

(2) After notice and hearing, enter an Order granting Applicant relief by vacating his plea of guilty entered on June 17, 2002. See Tex. Code Crim. Proc. Ann. art. 11.072, § 7(a) (Vernon Supp. 2004).


Respectfully submitted,

___________________________________

Attorney for Defendant

STATE OF TEXAS §

COUNTY OF TARRANT §


BEFORE ME, the undersigned authority, personally appeared ____(attorney)__________________, Petitioner herein, after being duly sworn, stated upon oath that he has read the foregoing Application for Writ of Habeas Corpus and it is true and correct to the best of his knowledge and belief.
____________________________________

Attorney


SWORN TO and subscribed before me on this 17 day of March, 2004.

____________________________________

Notary Public, State of Texas

My Commission Expires:




CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing instrument has been hand-delivered to the office of _____________, Assistant District Attorney, ___________ County District Attorney’s Office, ________________, Texas.
SIGNED this 17thth day of March, 2004.

___________________________________



Attorney for Defendan

1 This is the current amended statute after amendments by the 2001 Legislature. See Act of June 13, 2001, 77th Leg., R.S., ch. 648, § 2, 2001 Tex. Gen. Laws 1213, 1214. This statute applies to “enhancement of punishment at the trial of an offense committed on or after . . . September 1, 2001.” Act of June 13, 2001, 77th Leg., R.S., ch. 648, §§ 3-4, 2001 Tex. Gen. Laws 1213, 1214.

2 See Tex. R. App. P. 47.7.


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