## I N T H E C O U R T O F C R I M I N A L A P P E A L S O F T E X A S NO. WR-62,564-01

EX P ARTE DAMIAN BLAIN ALLE N, Applicant

ON AP P LICATION FOR A WRIT OF HABEAS CORP US CAUSE NO. CR15255-A IN THE 220T H DISTRICT COURT

F ROM BOSQUE COUNTY

Per curiam . O R D E R Applicant pleade d g uilty to delivery of a controlled substance in a drug fre e zone in exchang e for defe rre d adjudication community supervision. He later pleade d true to violating the terms of his defe rre d adjudication community supervision in exchang e for a sentenc e of five y ear s’ imprisonment, to run concurrently with a two-y ear sentenc e afte r revoc ation of community supervision in an ag g rava ted assault case . Applicant did not appea l his conviction or adjudication. Applicant filed this application for a writ of habea s corpus in the county of conviction, and the district clerk f

orwa rded it to this Court. See T E X . C O D E C R I M . P R O C . art. 11.07. Appl i ca n t contends that his plea was involuntary beca use adjudication counsel g ave him

err oneous advice about parole elig ibilit y . Applicant alleg es that trial counsel told him that he would2

be elig ible for parole afte r serving two y ear s in prison (which was the l en gth of the concur rent sentenc e in the ag g rava

ted assault case ). Applicant is being trea ted as ineligible for parole beca use of the drugfre e zone alleg ation to which he plea ded g uilty

. See T E X . G O V ’ T C O D E §508.145(e)

. Applicant’s adjudicati o n co unsel has submitt ed an aff idavit in which she states that she repe atedly advised Applicant that she does not “pra ctice p ar o l e” and that he should g et a parole attorney

. Howeve r this Court has held that counsel has a duty to provide corr ect advice with reg ard to parole e ligibility : I n situations in which the law is not clea r, counsel should advise a client that pending criminal char g es may car ry a ri s k of other serious conseque nces. When a serious conseque nce is truly clea

r, howeve r, counsel has an equally clea r duty to g ive corr ect advice

. Both failure to provide corr ect information and providing inco rr ect information violate that duty

. Ex parte M

oussazadeh , 361 S.W .3d 684, 691 (Tex. Crim. App. 2012). I n her aff idavit, trial counsel also states that she pointed Applicant to rese arc h sug g esting that the parole elig ibilit y require ments of Section 508.145(e) of the Texas Gover nment Code “ar g uably ” do not apply to the specific subsection of the drug fre e zone statute pursuant to which Applicant was sentenc ed in this case. Counsel doe s not ide ntify the source of this resea

rch, but the r ecor d shows that she relied upon a simil ar theory to arg ue that Applicant’s sentenc e afte r adjudication in this case did not have to run consecutively with his sentenc e in the agg rava ted as s au lt case , as would seem to be require d by Section 481.134(h) of the Texas Hea lth and Safety Code and this Court’s holding in W illiams v. State , 253 S.W .3d 673, 678 (Tex. Crim. App. 2008). The State did no t dispute counsel’s arg ument with reg ard to concur rent sentenc ing, and the tr i al co u rt order ed Applicant’s sentenc es to run conc urre ntly . Howeve r, trial counse l does not respond dire ctly in her a ffidavit to3

Applicant’s c laim that she told him he would be elig ible for pa role in two y ear s. C o n t ra ry t o t h e trial court’s finding s of fac t and conclusions of law, the transcr ipt of the adjudication hear ing does not show that counsel stated on the rec ord that Applicant would be elig ible for parole on this sentenc e afte r two y ear s. Rather, the rec ord ref lects that counsel advised Applicant that he would have to serve the concur rent two-y ear sentenc e for the ag g rava ted assault day -for -day

. There is no discussion on the recor d about Applicant’ s parole e ligibility for this sentenc e. Applicant also alleg es that had he been awa re that he would not be elig ible for parole on this fi v e- y ear sentenc e, he would not have ag ree d to plead “true ” to the alleg ations in the motion t o adjudicate in exchang e for that sentenc e, but would instead have opted for a “substance abuse plan.” There is no t hing in the rec ord to indicate that Applicant was g iven the option to participa te in a substance a

buse plan in lieu of the five-y ear sentenc e. I n her aff idavit, a djudication counsel states that the only offe rs available wer e for prison time, and that five y ear s was the lowest offe r the State would consider. Applicant has alleg ed fac ts that, if true, might entitle him to relief

. Brady v. United States , 397 U.S. 742 (1970). Acc ording ly , the rec ord should be develope d. The trial court is the appropr iate forum fo r finding s of fac t. T E X . C O D E C R I M . P R O C . art. 11.07, § 3(d). The trial court shall order adjudication counsel to respond specific ally to Applicant’s claim that she advised him that he would be elig ible for parole in two y ear s. The trial court shall also obtain an aff idavit or response from the trial prosec utor, stating whether there wer e any other options involving drug trea tment in lieu of the five-y ear prison senten ce offe red to Applicant in exchang e for his plea at adjudication. I n developing the rec ord, the trial court may use any means set out in Article 11.07, § 3(d). I f the trial court elec ts t o h o l d a hear ing, it shall deter mine whether Applicant is indige nt. I f Applicant is indige nt and4

wants to be repr esente d by co u n s el, the trial court shall appoint counsel to repr esent him at the hear ing. See T E X . C O D E C R I M . P R O C . art. 26.04. I f counsel is appointed or reta ined, the trial court shall immediately

notify this Court of counsel’s name

. The trial court shall make finding s of fac t and conclusions of law as to whether adjudication counsel g ave Applicant err oneous advice as to his parole elig ibilit y . I f adjudication counsel’s advice reg arding parole elig ibilit y was incorre ct, the trial court shall make finding s of fac t and conclusions of law as to whether Applicant would have pleade d “true ” or whether he would have insisted on g oing to a contested a djudication hear ing but f or counse l’s err oneous advic e. The trial court shall make finding s of fac t and conclusions of law as to whether Applicant’s plea of true was involuntary

. The trial court may make any other finding s and conclusions that it deems appropr iate in response to Applicant’s cla ims. The trial court shall make findings of fac t and conclusions o f law withi n ninety day s from the date of this order

. The district cler k shall then immediately forwa rd to this Court the trial court’s finding s and conclusions and the rec ord develope d on rema nd, including, among other things, aff idavits, motio n s, objections, proposed finding s and conclusions, order s, and transcr ipts from hear ings and depositions. See T E X . R. A P P . P. 73.4(b)( 4). Any extensions of time must be reque sted by the trial cour

t and obtained f

rom this Court.

Filed: May

12, 2021 Do not publish