ON APPLICATION FOR A WRIT OF HABEAS CORPUS
This is a post-conviction application for a writ of habeas corpus filed pursuant to Article 11.07, V.A.C.C.P. Applicant was convicted of indecency with a child and punishment was assessed at five years imprisonment. No appeal was taken from this conviction.
Applicant contends, inter alia, that his plea was involuntary because counsel advised him that he would receive community supervision if he pled guilty. The trial court has conducted a hearing and entered findings that neither the court nor the prosecutor assured Applicant or his counsel that he would receive community supervision. However, the court found that no plea agreements are accepted by the court and that Applicant, his father, and his trial counsel all testified that counsel had told them that Applicant would receive community supervision if he pled guilty without an agreement. Although the court also found that counsel admitted he had never guaranteed that Applicant would get community supervision, nothing in this record or the court's findings refutes Applicant's assertions that he pled guilty and requested the court assess punishment only because he believed he would receive community supervision, based on his counsel's advice. Applicant's plea was not voluntarily entered, and he is entitled to relief.
Relief is granted. The judgment in cause number 2000-CR-1457-C in the 197th Judicial District Court of Cameron County is vacated, and Applicant is remanded to answer the charges against him.
Copies of this opinion shall be sent to the Texas Department of Criminal Justice, institutional and pardons and paroles divisions.
DELIVERED: October 15, 2003
DO NOT PUBLISH
Keller, P.J., dissents