:Qe\¢;i§£:*iz‘@.z@@ 1 - ` _ 7 ,S§(D ,. /<3} [O/ WPWNT RE;BUUAL“_ y -__~ §“N§E®% §"\B COL\RT\ §G"` CHP\’ 'E\NN £\@PE(ALS APR 0 6 2015 m@&c@§z@,cs@vk ` MC>'. 3ang ?)O, 000 `1'@ ~m€ HbuoraAesLE cLEm<g Novu comes 'T’EQQY N\\LL€@\ .N ms »QEBMTML -m -rm_= seem D lsi-ch rc~gP ons$‘ &Pphccm+ ls humble "¢%ue§+m? Uqa{- you,.

PL€’Q'S% 'Yl&\<e @Opi¢';s °@‘Hm °‘PP|\cq/kés F'§‘3'PO"$€ and `e“mda'm| 40 »H\,g_ 138¢1~k dill$+¢“¢c-*\’, GFGSS», C,our\~{-{; Lo"§'V@/ 11 \/Ou" Z\Heo+\on m 'd\¢$ mather 15 Qrea{~hf app rc;cc(_'l{~&a| . haw S;n le / COURTS RESPONSE The appliacnt has peviouslv letioated the isuue before.

APPRICANTS RFSPONSE The present application makes the assertion that the trial court is prohibited fpom\the use of a state jail felony-for enhancement purpose. see memorandum, pq £; Appliaants previous applicationEHaD not make this assertion.'Th@ previous appliaction only asserts that the paragrsph was not alleged in indictment t 30,298. See memorandum pg,Af 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 alleqed in the indictment, the 188,th district cited \ Brooks to support this position. see prior application.

7~\'pplicant contends that the onlv conviction found in any of his forms is the prior conviction in indictment t 30,600, se Exhibit:€!also pg 19 of memorandum.

This instument asserts; qaving heen convicted of the felony offense of PUPGEARY OF A BUILDING on the 7,th day of Novemeherin cause No 231029/3 in the District Court of Texas, in case on the docket of said court and entitled the State of Texas V Terrv Louis Miller intentionallv or knowinqlv possesessed a fire arm before the fifth annaversarv of the defendants confinement from releif Of said confinement followinq said conviction.

This instrument makes no mention that the hurolarv would he used for enhancement purpose.

If the state intends to effectively increase §h@ §§§u§l 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 appligem¢ due-process becomes Lviolated. l luken v Stater 780.SW,2d,2A6.

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 $&@ accused is entitled to a proper notice of a prior convi@tion that might be used for enhancment purpose. 7 The prior convitcion in indictment t 30 600' only informs that the state entends 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 the 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)> Gf the subsequent chapter provodes v If a subsequent appliaction for a writ of habease corpus is filed after a final dispositionof a initial appli&@iion challenging the same conviction vaycourt may not consider the merits or grant relief based upon the` subsequent appliaction unk§s appli§ént contains &pecifics facts establishing one of the two acceptions.

Por the purpose of subsection (C) A factual basis is unavailable on or before a date described bv (a\_(l) 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 appliee&hwwn- that the prior conviction in indictment 30/600 is the prior conviction used for enhancement. ' n Por this reason the applicant request that the present application be reviewed under section (Cl of the subsequent chapter/ the applieent has not found anv prior felony that could be used ` ii to increase the range of punishment. ., `[ `[ ginnst RF:sPoNsE _ This is was previuoslv letigated in the first application.

A,PPLICAN']" RE`BITTTAL

The 188/th district conduct is confgjhd by law, When a trial court conduct vio&étes one of those laws the court is said tD have no authoritv to act/Ex,parte Sanchez,918,Sw,26,526,-27; The court of appeals reversed in Qanchez as the court should here holding that a iudicial defect in the trial proceedings` would render a iudqement void. ` The court noted\that the prior conviction alleged in indictment -30,600 can not be used for enhancement purpose~fortier V State. lOS,SW,3d,697. Tx Crm App, 2003.

The judicial performance performed by one with no authority to act may be raised at any time. mente" Williams.€§v'$w,Bd/€SS, Applicant contends that the trial court entered a sentence of fourtv vear's in the caseat bar. ’ l In a previous applia§tion the applicant made several inquiries into the existance of the specific conviction that was use tov increase the punishment range. the 188.th District has vet to provide that information. see memorandum pa 4-5.

The applicant contend@ that the trial court vioalted his due’ process.

The Court of appeals is-asked to review this application in an effort to discover the prior that gives the court its- authoritv. '.T="r’u ‘,` " "‘. "~;;\ _': c w ' `,~ /_/".\ -[~ -.. .,. ,-_ .,~ ,-; / \)'\ 111¢ coURTs'RRsPOSNSE .The issue regarding the affirmative finding was previuoslv letigated on direct appeal.

APPLIcANTS RESPONSE The court does not assert that the ampi¢mnncv@kb not raise the issue in an application for ll:07/ or in a habease corpus. .‘, ,_ ‘ 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.

APPLICPNTS 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 courtei§ self that@Pphé§Q§¥V?§®rné& that the prior was some where among his forms.

Once-the appicant did discover¢the prior conviction he still u||‘\ was n-ot aware that the conviction‘was a state jail felony. '-"" in `~ll~t\`.rL) lt was not until the applieent did additioanl res<earch regarding the prior conviction that the applicant became aware that the . , , conviction was a state jail felony. 4 1 W 'Mf ' ‘“‘ 15 One who has been»accused of a crime may some times take months or even Vears before heyshe discover the iniurv suffered whereas the_attorney may discover the same information in a matter of hours. applicant 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 Bradv voluntariness which explain that a guilty plea must be entered bv one aware of the direct consequences to be voluntarv.’ vFail'ure.of the counsel to inform, invetigate,and obiectrviola;es 'theaaccuse due process, of the sixthr’and`fifth_amendment.

Several courts have recognized where ineffective assistance of counsel occurs before a trial the harm consistent to the defense.

Exp'arte r.emke ,‘ `1 3_,ew,aa ,7<)1_ . the court of appeals noted in Lemke, Thatxcounshl failure~to'comm-` ’unicate creates a probability that sufficient to undermine the confidence and integrity of the out come of the trial proceedinqs.

I.d at The courts have tailored a remedy to inquire into_ the iniury 'suffered when counsel fail's to convey information.

Sec (Cl provides review Of.those issue's. Whereas counsel may explain.

V COURTS RESPONSE The issue of the allegation inadequacy of the indictment was previuosly raised, in a first application. _APPLIACNTS RESPONSE

The l88,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 applicantskfprms.

For these reasons the court of appeals is asked to develope the records even futher, whereas the l88,th“District court may reveal the prior conviction used to increase the applicants punishment ranqe.

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 related not related to the merits are labled dismissed. Reqardless of the lable the court noted that it should look at the substance of the disposition to determine 'whether the writ is barrés by sec d.Ex,parte,Torres 943,$W,2d,469 Applicant respectfully ask that the appeals court review these meritable 'regardless as to whether the applicanht has satisfied the subsequent sec €.