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Click here for the full text of this decision FACTS:Authorities charged Christopher Jordan Bahm with the offense of aggravated sexual assault of a child. On Feb. 8, 2002, he pleaded guilty to the charge and, pursuant to the plea agreement, the trial court deferred adjudication and placed him on community supervision for eight years. Five months later, however, the state moved to revoke community supervision and to adjudicate guilt, alleging that Bahm had committed 11 violations of the conditions of his community supervision. At the revocation hearing, Bahm pleaded true to the six allegations relating to the failure to pay or timely pay certain fines, fees and costs. He did not plead true, however, to allegations that he had failed t obtain suitable employment; perform community service; and attend and complete sex offender counseling. He also denied having unapproved contact with a minor child and sexual intercourse with a minor. The trial court held an evidentiary hearing, where it found all of the allegations to be true except the one alleging that Bahm had sexual intercourse with a minor child. The trial court revoked Bahm’s community supervision, adjudicated his guilt and sentenced him to prison for 25 years. On March 21, 2003, Bahm filed an untimely motion for new trial on the ground that the verdict in his case was contrary to the law and the evidence. The trial court denied the motion. On April 11, 2003, Bahm filed a notice of appeal, but the 9th Court of Appeals dismissed the appeal for want of jurisdiction. Bahm later petitioned the Court of Criminal Appeals (CCA) for a writ of habeas corpus. The CCA granted him an out-of-time appeal. On Jan. 13, 2005, Bahm filed a second motion for new trial based on nine grounds including ineffective assistance of counsel. The trial court denied the second motion for new trial without a hearing. Bahm appealed to the 9th Court, claiming that the trial court erred in failing to hold an evidentiary hearing on his second motion for new trial. The 9th Court affirmed, focusing solely on the affidavits and only one of Bahm’s nine claims, holding that the affidavits submitted by Bahm in support of his motion for new trial were insufficient regarding his claim of ineffective counsel to put the trial court on notice that reasonable grounds existed for granting a new trial. The CCA granted review to consider whether the 9th Court attempted to overrule a CCA order “concerning what language is appropriate for an inmate declaration to constitute a sworn statement in lieu of an affidavit.” HOLDING:Reversed and remanded for an evidentiary hearing on Bahm’s motion for new trial. Bahm, the CCA noted, supported his motion for new trial with three documents, each entitled “Affidavit.” Bahm, his father and his aunt each signed an affidavit. In addition, Bahm attached two documents, each entitled “Inmate’s Declaration.” One of these was attached to his own affidavit, stating in relevant part, “I . . . declare under penalty of perjury that according to my belief the foregoing information in this Affidavit are [sic] true and correct.” The other one was attached to his motion for new trial, stating in relevant part, “I . . . declare under penalty of perjury that according to my belief the foregoing information and allegations of the Motion are true and correct.” According to the CCA, the 9th Court correctly recognized the declarations as unsworn declarations that Texas Civil Practice & Remedies Code �132.001-.002 allows an inmate to use in lieu of a verification or affidavit but found that Bahm’s declarations did not satisfy the requirements of the statute. But the CCA found that the language of the statute did not support the 9th Court’s conclusion. Section 132.001, the CCA noted, simply allows an inmate in the Texas Department of Corrections or in a county jail to use an unsworn declaration “in lieu of a written sworn declaration . . . or affidavit.” Section 132.002 then sets out the actual requirements for such declarations, which are simply that the unsworn declaration must be written and “subscribed by the person making the declaration as true under penalty of perjury.” Finally, �132.003 sets out the form of the declaration but requires only substantial compliance with the prescribed form, that is, “I . . . declare under penalty of perjury that the foregoing is true and correct.” Neither of Bahm’s declarations, the CCA stated, appeared to violate the statutes, since both of them were written, included the vital phrase “under penalty of perjury” and substantially complied with the form of an unsworn declaration prescribed by the Legislature. Nonetheless, the CCA stated, the 9th Court held the declarations invalid, because they included the phrase “according to my belief.” The 9th Court found that “[s]wearing that a fact is”true and correct according to one’s belief’ is not substantially the same form as swearing that a fact is”true and correct.’” But the CCA found that the 9th Court cited no authority for its conclusion that the surplus phrase made the declarations invalid. Moreover, the CCA stated, the 9th Court failed to consider Bahm’s inclusion of the phrase “under penalty of perjury” as an additional qualification of his declaration. Thus, the CCA found that the inclusion of the phrase “under penalty of perjury” carried serious legal consequences that could not be ignored simply because of the inclusion of another phrase. The CCA held that Bahm made a factually sufficient showing on the one claim that the 9th Court addressed: that his attorney had not informed him of a plea offer that the attorney was legally obliged to relay to him. Both Bahm and his father attested to this critical fact, the CCA stated. The trial court can determine the merits of that claim on remand, the CCA stated, when it holds the evidentiary hearing that it improperly denied. Thus, the CCA held that the 9th Court erred in concluding that Bahm’s affidavits failed to meet the statutory requirements of an unsworn declaration and that the affidavits were legally and factually insufficient to support his motion for new trial. OPINION:Holcomb, J., delivered the opinion of the court, in which Meyers, Price, Womack, Johnson, Keasler, Hervey and Cochran, J.J., joined. DISSENT:Keller, P.J., dissented without a written opinion.

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