Ex parte Gonzales , 790 S.W.2d 646 ( 1990 )

OPINION

PER CURIAM.

This is a pro se postconviction writ of habeas corpus proceeding brought pursuant to Article 11.07, V.A.C.C.P.

Applicant pled guilty and was convicted on April 7, 1987, in cause number 2138, of the offense of attempted murder, a second degree felony. See V.T.C.A. Penal Code, §§ 19.02(b) and 15.01(d). After pleading “true” to two enhancement paragraphs, his punishment was assessed at 38 years confinement in the Texas Department of Corrections. Y.T.C.A. Penal Code, §§ 12.42(d). Applicant took no appeal.

Applicant now alleges his counsel was ineffective in advising him to plead true to the enhancement paragraphs. He alleges that diligent investigation would have revealed that his prior convictions were not available for enhancement. Had counsel discovered and attacked the prior convictions, applicant contends, he would have been susceptible to no more than a twenty year maximum sentence. V.T.C.A. Penal Code, § 12.33(a). Under those circumstances he would not have pled guilty, but would have insisted upon standing trial. See Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985); Ex parte Pool, 738 S.W.2d 285 (Tex.Cr.App.1987). We will deny relief.

The indictment in cause number 2138 alleges two prior felony convictions for enhancement. The first in time is a 1957 conviction, in cause number 7983, for the offense of assault with intent to commit murder. The second conviction, for murder, occurred in 1976, in cause number C-435. Both convictions were in the 139th Judicial District Court in Hidalgo County. In a single enhancement paragraph the indictment in cause number C-435 alleged the earlier conviction in cause number 7983. The judgment in cause number C-435 reflects applicant was indeed assessed punishment in that cause as a repeat offender pursuant to the enhancement allegation.

On July 13, 1988, in an unpublished opinion, this Court set aside an order revoking applicant’s probation in cause number 7983, the 1957 conviction, upon the State’s concession “that applicant was not afforded the assistance of counsel at the said probation revocation hearing.” Applicant now claims that had counsel in the present cause number 2138 properly investigated, he would have ascertained that the conviction in cause number 7983 was invalid. Further, because the conviction in cause number 7983 was used to enhance his punishment in cause number C-435, he contends, that conviction was invalid as well. Because neither enhancement paragraph was available to enhance his punishment, applicant continues, he could not be punished under either § 12.42(d), or §§ 12.42(b) and 12.32(a), supra. He could only have been exposed to punishment as a bare second degree felon, carrying a twenty year maximum punishment. § 12.33(a), supra. In that event, applicant maintains, rather than pleading guilty, he would have proceeded to trial.

We must reject applicant’s contention, however. Even had counsel in present cause number 2138 investigated and found that applicant’s 1957 conviction in cause number 7983 was infirm, under our case-law he would not have been empowered to collaterally attack the 1976 conviction in cause number C-435 on that basis unless he could show counsel at trial in cause number C-435 objected to use of the conviction in cause number 7983 to enhance. Ex parte Cashman, 671 S.W.2d 510 (Tex.Cr.App.1983) (Opinion on State’s motion for rehearing); Hill v. State, 633 S.W.2d 520 (Tex.Cr.App.1982) (Opinion on State’s motion for rehearing). Applicant does not now allege such a showing can be made. In fact, judgment in cause number C-435 indicates applicant pled guilty in that cause. This would tend to indicate counsel in cause number C-435 did not object to use of the conviction in cause number 7983 for enhancement of punishment in cause number C-435. It is thus unlikely counsel in present cause number 2138 could have prevented use of cause number C-435 for enhancement even had he been aware of the invalidity of the conviction in cause number 7983. Applicant would still have been punishable as a repeat offender in present cause number 2138. As such, he would have faced a maximum penalty of 99 years in the penitentiary. §§ 12.42(b) and 12.32(a), supra.

Applicant’s claim he would not have pled guilty is contingent upon the premise that properly informed counsel would have advised him he could only receive a maximum sentence of twenty years. That premise is untenable. Had he known of the invalidity of the 1957 conviction, counsel in cause number 2138 would still have been correct to advise applicant he faced a 99 year maximum punishment.

In short, applicant has not pled facts which, if true, would entitle him to relief.

Accordingly, the relief prayed for is denied.