EX PARTE CHARLIE LAMAR JACKSON (other)

OF TEXAS

NO. WR-75,001-01

EX PARTE CHARLIE LAMAR JACKSON, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 17533B IN THE 104TH DISTRICT COURT

FROM TAYLOR COUNTY

Per curiam.

O R D E R

Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the clerk of the trial court transmitted to this Court this application for a writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of possession of marihuana in a drug-free zone and sentenced to eight years imprisonment. He did not appeal his conviction.

Applicant contends that he pleaded guilty because the prosecutor told trial counsel that after Applicant served his two-year sentence in a separate state jail felony conviction, was sent to the Correctional Institutions Division of the Texas Department of Criminal Justice, and served approximately eight months there, he would be eligible for release to parole. Applicant contends, however, that he has to serve five years day-for-day before he will become eligible for release to parole. See Tex. Gov t Code 508.145(e). The trial court found that Applicant was not advised by the State, the trial court, or trial counsel that he would have to serve his first five years day-for-day due to the drug-free zone. The trial concluded that Applicant s plea was involuntary and recommended that we grant relief.

We do not agree. If parole eligibility is an affirmative part of a plea bargain and that part of the plea bargain cannot be carried out, a defendant s plea will be rendered involuntary. Ex parte Evans, 690 S.W.2d 274, 279 (Tex. Crim. App. 1985). Applicant does not contend that parole eligibility was an affirmative part of his plea bargain. We recently filed and set Ex parte Moussazadeh, AP-76,439 (filed and set for submission on November 3, 2010) to determine, among other things, whether we should reconsider in light of Padilla v. Kentucky, 559 U.S. ____ (2010) our original holding in Ex parte Moussazadeh, 64 S.W.3d 404 (Tex. Crim. App. 2001) that Mr. Moussazadeh s guilty plea was not rendered involuntary because of counsel s erroneous advice on parole eligibility. Applicant does not contend that trial counsel provided deficient advice. Instead, he contends that his plea was involuntary because the prosecutor misrepresented to trial counsel the law on parole eligibility. Even if the prosecutor made such misrepresentations to trial counsel, we do not agree with the trial court s conclusion that Applicant s plea was involuntary. Relief is denied.

Filed: January 12, 2011

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