Tt
COURTS RESPONSE -

This is was previuoslv letiqated in the first application.

APPLICANT REBUTTAL

The 188,th district conduct is conkelled by law, When a triai
court conduct viotaétes one of those laws the court is said tp

have no authority to act,Fx,-parte Sanchez,918,SW,2d,526,-27.

phe court of appeals reversed in Sanchez as the court should
here holding that a iudiciai defect in the trial proceedings
would render a iudaement void.

The court noted*that the Prior conviction alleged in indictment
30,600 can not be used for enhancement purpose.fortier V State-
105,SW,3d,697. Tx Crm App, 2003.

The judicial performance performed by one with no authority to
act may be raised at any time. Exparte Williams 65; Sw,3d,655,
Applicant contends that the trial court entered a sentence of
fourty year's in the casest bar. :

In a previous applieation the applicant made several inquiries
into the existance of the specific conviction that was use to
increase the punishment range. the 188.th District has yet to

provide that information. see memorandum pq 4-5.

The applicant contend# that the trial court vioalted his due

process.
The court of appeais is asked to review this application

in an effort to discover the prior that gives the court its

authority.



Vv
COURTS RESPONSE

The issue of the alleaation inadequacy of the indictment was

previuosly raised, in a first application.

APPLIACNTS RESPONSE
The 188,th District does not assert that the prior conviction in

indictment 30,600 is the prior that the court used to enhance the
punishment -

The appliacnt contend that the conviction alleged here deals with

a question concerning the courts authority to act.

There is no other prior alleged in any of the applicants fprnis.
For these reasons the court of appeals is asked to develope the
records even futher. whereas the 188,th District court may reveal
the prior conviction used to increase the applicants punishment

range .

Sec 4. plainly request that a final disposition on an initial writ.

the court noted that it must entail a disposition relating to the
merits of all claims raised. Dispositions relating to the merits

are labled denial, while the disposition relrtsc not related to the
merits are labled dismissed. Regardless of the lable the court noted
that it should look at the substance of the disposition to determine
whether the writ is barré@a by sec 4.Ex,parte,Torres 943,SW,2d,469
Applicant ‘respectfully ask that the appeals court review these meritable
‘regardless as'to whether the appticanh* has satisfied the subsequent

sec 4.


luken v State, 780.SW,2d,246.

In luken the court of appeals held that an enhance sentence must
be supported by a written allegation of a prior conviction-.I,d at37
re accused is entitled to a proper notice of a prior convigtion
that might be used for enhancment purpose.

The prior convitcion in indictment # 30 600 only informs that the
state d@ntends to use this prior that the state entends to show
that the applicant possessed a fire arm before the fifth annavers-
sarv of his release. the notice. does not infrom fhe applicant

that the prior would be used for enhancemnt purpose. see exhibit
c. otherwise the applicant would have prepaired a defense to

the prior alleged here.

sec 4 (a)>
Of the subsequent chapter provodes .

If a subsequent appliaction for a writ of habease corpus is filed after a
final dispositionof a initial appligetion challenging the same conviction

a court may not consider the:merits or grant relief based upon the |
subsequent appliaction unless appligent contains @pecifics facts establishing

one of. the two acceptions.

For the purpose of subsection (¢)

A factual hasis is unavailable on or before a date déscribed

by fa) (1) if the factual basis was not ascertainable through
the excercise of reasonble diligence on or before that date.

The trial court does not allege in the present applieeticon

that the prior conviction in indictment 30,600 is the prior
conviction used for enhancement.

For this reason the applicant request that the present application
be reviewed under section (Cc) of the subsequent chapter, :

the appliéent has not found any prior felony that could be used

to increase the range of punishment.

3


III,
COURTS RFSPOSNSF

‘he issue regarding the affirmative finding was previuosly
letigated on direct appeal.

APPLICANTS RESPONSE

The court does not assert that the agplicanmetvalth not raise the
issue in an application for 11:07, or in a habease corpus-
ot _

Applicant contends he is not prohibited from raising the issue
again in his habeas for the first time.

IV
COURTS RESPONSE
While the specific complaint may not have been raised at that
time , there is no new facts that could not have been raised

in the first appliaction-

APPLICANTS RESPONSE

Applicant was unaware of the prior conviction do to the fact
it was not alleged in indictment 30,298. It was not until

communicating with the trial court it, self that app cane “Tea rnéd

that the prior was some where among his forms.

Once the appicant a@id discover’ the prior conviction he still
nn
was not aware that the conviction, was a state dail felony.
‘ Saeeale
It was not until the applieent ‘aia additioanl nes search regarding

the prior conviction that the applicant became aware that the

conviction was a state jeil felony- ° hyo
One-whe has been-accused of a crime may some times take months

or even years before he/she discover the iniurv suffered whereas
the attorney may discover the: same information in a matter of

hours.


CAMS!

{

ry
‘4

350,298 |

se OSES ITE
Sh. hes

GQURT OF CAIRINAL APPEALS
APR 06 2015

Albet Acosta, Clerk


applieant argues that he was misled by both the trialccourt and
his counsel-as’ to the enhancement matter.
Indictment 30,600 is the new fact that applicant has presented in
the current application.

the court of appeals has recoqnozed in Bzadv voluntariness
which explain that a.quiltv plea must be entered.bv one aware of
the direct conseauences.to be voluntarv.

Failure of the counsel to inform, invetigate,and object ,-violakes

thesaccuse due process, of the sixth, and fifth anendment .

Several courts have recognized where ineffective assistance of
counsel occurs before a trial the harm consistent, to the defense.
Exvarte Lemke, 13,/8W,3d,791. ;
the court of avnveals noted in lemke, Thati:counsl failure to comn— °
unicate creates a probability that sufficient to undérmine the
confidence and integrity of the out come of the tral proceedings.
I-d at

The courts have tailored a remedy to“inguire into the iniury
suffered when counsel fail's to convey information.

Sec (C) provides review. of those issue's- Whereas counsel may

explain-


NO. 30.29g
30, 600

“TO THE HONORABLE CLERKS

Now Comse TERRY MILLE IN HIS REBUTTAL “To “THE 100th

Dishnt TeSponse’ ' Applheant ts humble requesting thet you

P leage Make Copies of the applicants response and forwarel
Hote the 14evth district, Gregg. Coury, hong wew, Te,

Your attention tn ths matter +16 A roatty Opp rectated .

Sia y


COURTS RESPONSE

The avoliacnt has peviously ltetiaated the isuue before.

APPLICANTS RFSPONSE

The present application makes the assertion that the trial court

is prohibited from the use of a state jail felony. for enhancement
purpose. see memorandum, pq &

Appliesnts previous applicat ionihos not make this assertion. The
previous appliaction only asserts that the paragrsph was not alleged
in indictment # 30,298. see memorandum pg. 4/

It was not until the trial courts response in the previous applic-

ation that the applicant became aware that the prior conviction

need not .be alleged in the indictment, the 188,th district cited
Brooks to support this position. see prior application.

Applicant contenes that the only conviction found in any of his forms
is the prior conviction in indictment # 30,600.

se Exhibit,C,also pg 19 of memorandum.

This instument asserts;

Having heen convicted of the felony offense of BURGLARY OF A
BITILDING on the 7,th day of Novemeberin cause No 23,029,B

in the District Court of Texas, in case on the docket of said
court and entitled the State of Texas V Terry Louis Miller
intentionallv or knowinaly vossesessed a fire arm before the
fifth annaversary of the defendants confinement from releif
of said confinement following said conviction.

This instrument makes no mention that the buralary would be used for enhancement
purpose.

If the state intends to effectively increase =the aetual amount of

prison time the accuse must serve, it must provide adequate advance

notice so that the accuse may prepair a proper defense to the

states allegations, otherwise the epplieart due-process becomes
i

priolated. 1

\o