Ex Parte Moody
991 S.W.2d 856
Tex. Crim. App.
1999
Check Treatment

*1 MOODY, No. 73162.

Court Criminal Appeals Texas. *2 in the state sentenced was Moody, Snyder, Applicant se. pro trial Applicant’s June case on 0‘Connel, Attorney, Tom District that his state assured him attorney again Paul, Atty., Matthew State’s McKinney, run concur- would and federal Austin, for the State. a motion filing for period After the attorney expired, Applicant’s for new trial OPINION trans- had been Applicant that learned MEYERS, J., delivered the of of Crimi- Department to the Texas ferred in the court which federal Applicant’s and that nal Justice PRICE, WOMACK, KELLER, until his release would not sentence KEASLER, JJ., JOHNSON, to and return from the state institution for a application is a now contends post-conviction custody. Applicant This federal pursuant involuntary, of habeas filed plea writ his was counsel, Crimi- Article 11.07 of the Texas Code of of because assistance ineffective convicted of from his Applicant nal Procedure. was erroneous advice he relied on a controlled substance. Pur- possession of attorney. plea bargain, to a the court assessed suant findings of fact trial court entered The years imprisonment. fifteen punishment at in which it deter- of law and conclusions appeal not Appellant did conviction. mined: of possession arrested for Applicant was plea repre- his after a Applicant entered in County in Collin controlled substance counsel that by defense sentation bond, May of 1995. While custody be returned would for a was also arrested Collin and that the plea after he entered his October federal offense committed on would run and federal sentences state in federal Applicant was indicted

.1995. was concurrent. This custody. court and taken into federal On the Court and not discussed unknown to 5, 1996, judge the federal sentenced plea hearing. formal at the months in the Fed- Applicant to serve 151 eral Bureau of Prisons and delivered him re- representations above Except for the facility. to serv- holding a federal Prior Applicant en- charge, to a federal lating ing his federal was voluntarily and freely, tered his transferred to Collin to resolve the competently. instant case. was Applicant’s plea urges that bar- attorney The district offered the did voluntary, because confinement, years for fifteen which gain, federal sentence Applicant’s refer to regarding Appli- made no representations that agreements regarding no there were sentence. attor- federal this application filed and set sentence. We ney, consulting Applicant’s after plea, whether to determine defender, informed public erroneous advice attorney’s based on offense, he pleading after to the state the or assent of knowledge without custody to would be returned to federal court, involuntary. was State or concurrently. Based serve both sentences challenges the a defendant attorney’s estimates of federal and When on his upon entered voluntariness of eligibility, which indicated state counsel, contending that his released from advice of by ineffective, “the voluntariness have little obli- counsel he would (1) coun whether plea depends of further time on his gation to serve range compe within the sel’s advice was in the Texas of Crimi- charge attorneys in criminal tence demanded Applicant opted plead nal (2) not, is a there whether and if cases guilty. probability that, but for coun- when wholly a defendant upon relies erro- errors, sel’s he would not pleaded counsel, neous advice of magnitude guilty and would have going insisted on the error as it concerns the consequences trial.” Ex Parte factor; is a relevant not every 586 (Tex.Crim.App.1997), citing Hill v. reliance on erroneous advice is sufficient to *3 Lockhart, 52, 474 866, U.S. 106 S.Ct. 88 justify rendering vulnerable to 203, (1985); L.Ed.2d Strickland v. Wash- collateral attack. See Ex Parte ington, 668, 466 2052, U.S. 104 S.Ct. 80 (erro- (Tex.Crim.App.1985) 274 (1984); 674 L.Ed.2d and McMann v. Rich- neous advice regarding parole too specula- ardson, 759, 1441, 397 U.S. 90 S.Ct. 25 tive to invalidate plea.); see also Ex (1970). L.Ed.2d 763 As types with other Parte 952 S.W.2d at 536 (citing of ineffective claims, assistance of counsel cases in which erroneous advice regarding Applicant has the burden to show that collateral consequences render counsel’s performance fell below a reason- involuntary). able standard of competence and that Ap- would, plicant with a probabili- alleges that he would not ty, pled not guilty and insisted on have accepted bargain had he going to trial had he been properly advised known he would his sentences not serve of how his federal and state sentences concurrently. state trial coun would interact. sel interpretation attested that under his law, of federal sentencing Appli and state First we examine trial counsel’s cant's two expire ap sentences would at performance. In assessing competence, proximately the same time if we have held counsel accountable for accepted year the fifteen offer. Appli knowledge, or the ability to attain knowl cant’s federal trial counsel stated he be edge, of legal relevant matters that are Applicant agreed plead guilty lieves neither novel nor unsettled. Ex Parte the state to the impression Welch, 981 S.W.2d 183 (Tex.Crim.App. that he would serve his sentences concur 1998). The manner in which Applicant testimony, Applicant Based on this would serve ascertainable, his sentences is has met his showing reason as it is a matter of law. generally, See 18 that, able probability but for counsel’s er §§ U.S.C. (1998); 3621 Tex.Code advice, roneous pled he would not have case, Proc. Art. 42.01. In Crim. guilty. The nature of the erroneous infor cant particularly concerned about mation in importance, this case is of such whether his sentences would run concur decision, and so critical to as to cast rently or consecutively. Counsel had the validity plea. doubt on the of the obligation provide Applicant with accu information, rate and on multiple occasions Unlike a case in which defendant relies specifically assured that he information, parole eligibility erroneous would be transferred nature, which is speculative by the concur- serve his two sentences concurrently. We rency Applicant’s directly af- cannot conclude that counsel’s mistake re fects the of his As length confinement. garding the operation of sen stands, the case currently Applicant cannot tences was within the range competence begin to serve his federal sentence until for a criminal attorney. his release from the Texas

Our next inquiry is whether Appli Criminal he despite the fact that cant’s decision to plead guilty was a plead guilty result chose to on counsel’s based of that counsel’s deficient advice. We con that his federal sentence sider the circumstances surrounding the would begin immediately and run concur- gravity of the misrepresenta rent Appli- with his state sentence. While tion material to that determination. Even cant’s estimates of the of his state an of counsel. While ineffective assistance obligation after his release from ap- prejudice is the the date his speculative, are the prej- satisfies has suffered representa- plicant and the sentence would Washington, v. prong be concur- of Strickland tion that his sentences would udice 80 L.Ed.2d 104 S.Ct. rent are not. 466 U.S. (1984), “involuntary plea” does an should The State contends relief for relief freestanding basis constitute made neither be denied because also distin- The Court state action. absent misrepresentations the the nor ratified from cases involv- case guishes present indicated Applicant, made to parole eligibili- about advice ing erroneous on no relying court that open the Court’s I understand ty. promises plea. to induce his distinguishable case say present that the *4 from of an claim differs because the absence such cases from of a broken means that concurrent claim, prosecutorial judicial par in that or will necessar- by applicant served Ex Parte ticipation is not determinative. had the sentences been longer than ily be Rather, such 690 S.W.2d at 277. was led to believe. applicant as concurrent factor, rele participation is a considered eligibility, parole advice about Erroneous vant to whether met his hand, necessarily does on the other obtain habeas relief. proof to of confinement because affect (Tex. Adams, See Ex Parte 768 S.W.2d 281 discretionary pa- is release —the Crim.App.1989). prosecutor Neither the never to release may choose role board authority nor the to order judge had un- these parole. inmate on With given sentence to run concurrent majority opinion. join I derstandings, with the see Ex Parte Huerta, (Tex.Crim.App. S.W.2d

1985).

Relief set aside the granted. We

judgment in the in cause W219-80878-95

219th Judicial District Court of Collin remand to the Collin and Sheriff to answer shall

against Copies opinion him. of this GOLDEN, Autry Gene be sent to the Texas Board of Pardons

Paroles as well as the Texas 73178. No. and Pa Criminal Institutional role Divisions. Texas, Appeals Court of Criminal En Banc.

KELLER, J., concurring delivered MANSFIELD, opinion in which KEASLER, JJ., joined.

WOMACK and P.J.,

McCORMICK, only in concurred

the result.

HOLLAND, J., participate.

KELLER, J., concurring in which WOMACK,

KEASLER, JJ. of the Court’s

My understanding the basis of granted relief is

is that