APPLICATION FOR A WRIT OF HABEAS CORPUS FROM BELL COUNTY
J., delivered the opinion of the Court in which Alcala,
Richardson, Yeary, Newell, and Walker, JJ., joined. Keller,
P.J., filed a concurring opinion in which Hervey, J., joined.
Keasler, J., filed a dissenting opinion.
was charged with causing serious bodily injury to a child
under Texas Penal Code section 22.04(a)(1). After the State
abandoned the deadly weapon allegation, he pled guilty with a
50-year cap, and the trial court sentenced him to 50 years in
prison. Applicant now claims that his plea was involuntary
because his attorney misadvised him about the effect of a
deadly weapon finding on his parole eligibility. He says that
if his attorney had correctly advised him, he would have
insisted on going to trial. The habeas court found those
claims to be true and recommended that we grant relief. The
habeas court's findings are supported by the
record. The only question we face is whether the
law as it existed when Applicant's conviction became
final entitles him to relief. We conclude that it does.
claim for relief is grounded in the federal constitution.
U.S. Const. amend. VI (rights to jury and counsel). The
ultimate authority on federal constitutional law is the U.S.
Supreme Court. U.S. Const. art. VI, cl. 2; Marbury v.
Madison, 5 U.S. 137, 177-78 (1803); Hernandez v.
State, 988 S.W.2d 770, 772 (Tex. Crim. App. 1999);
State v. Guzman, 959 S.W.2d 631, 633 (Tex. Crim.
App. 1998). The Supreme Court's pronouncements about
federal constitutional law are binding on this Court. Ex
parte Ramey, 382 S.W.3d 396, 397 (Tex. Crim. App. 2012);
Coronado v. State, 351 S.W.3d 315, 317 (Tex. Crim.
App. 2011); Coble v. State, 330 S.W.3d 253, 270
(Tex. Crim. App. 2010). Thus, the validity of Applicant's
claim must be judged in accordance with applicable U.S.
Supreme Court precedent.
defendant is entitled to effective assistance of counsel in
the guilty plea context. Hill v. Lockhart, 474 U.S.
52, 59 (1985). To prevail on a claim of ineffective
assistance of counsel due to bad advice about parole
eligibility, a defendant "must show that there is a
reasonable probability that, but for counsel's errors, he
would not have pleaded guilty and would have insisted on
going to trial." Id. at 58-59. Accord Ex
parte Moussazadeh, 361 S.W.3d 684, 691 (Tex. Crim. App.
2012) ("Moussazadeh III").
Applicant's claim meets the Hill formula, and
Hill predated the finality of his conviction, we
grant relief. The judgment is vacated, and Applicant is
remanded to the custody of the Bell County Sheriff to answer
the charges set out in the indictment.
Keller, P.J., filed a concurring opinion in which Hervey, J.,
Court says that this case is controlled by Hill v.
Lockhart,  but I read Hill differently. In
Hill, the Supreme Court explicitly declined to
decide whether erroneous advice about parole eligibility
could ever be deemed constitutionally ineffective assistance:
In the present case the claimed error of counsel is erroneous
advice as to eligibility for parole under the sentence agreed
to in the plea bargain. We find it unnecessary to determine
whether there may be circumstances under which erroneous
advice by counsel as to parole eligibility may be deemed
constitutionally ineffective assistance of counsel, because
in the present case we conclude that petitioner's
allegations are insufficient to satisfy the Strickland v.
Washington requirement of "prejudice."
Petitioner did not allege in his habeas petition that, had
counsel correctly informed him about his parole eligibility
date, he would have pleaded not guilty and insisted on going
only thing Hill decided was that, even if erroneous
advice about parole eligibility could ever be deemed
ineffective assistance, the advice in the case before the
Court failed to satisfy the Strickland
standard. But the Supreme Court did not decide that
erroneous advice about parole eligibility could ever be
constitutionally ineffective assistance, and in a line of
cases culminating in Moussazadeh II,  we held that such
erroneous advice could be deemed constitutionally ineffective
assistance only when parole eligibility was an element of the
plea bargain. Because there is no binding Supreme Court
precedent on whether erroneous advice about parole
eligibility can ever be deemed ineffective assistance, the
newness of the rule in Moussazadeh III must be judged by
this Court's own precedent.
I concur in the result because I believe that, despite our
general adherence to Teague,  several factors
weigh in favor of retroactivity. First, the rule in
Moussazadeh III was once the old rule, and we have
come full circle. It seems more appropriate to accord
retroactive status to a new rule that once was the rule than
to a new rule that is truly new, in the sense that it has
never been the rule before. In addition, the type of claim
before us is one that is generally raised on collateral
review, and the new rule here was announced on collateral
review. It is unnecessary to decide whether any of these
factors alone would be sufficient to accord retroactive
effect to a new rule. The combination of these factors is, in my
judgment, sufficient to accord retroactive effect here.
these comments, I concur in the ...