IN THE COURT OF CRIMINAL APPEALS
OF TEXAS




NO. 74,907

EX PARTE LUELLA LEEVER, Applicant




ON APPLICATION FOR WRIT OF HABEAS CORPUS
FROM HARRIS COUNTY

Per Curiam.



O P I N I O N



This is an application for a writ of habeas corpus which was transmitted to this Court by the clerk of the trial court pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure. Ex Parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of possession of a controlled substance, cocaine, of an amount under twenty-eight grams. Applicant entered into a plea agreement with the State whereby she agreed to plead guilty and have her sentence assessed at twenty years confinement with the expectation that she would be sent to a substance abuse felony punishment facility (SAFPF) pursuant to Texas Penal Code, Section 12.422. Applicant further believed, based on the terms of the plea agreement, that upon satisfactory completion of the SAFPF program, the court would impose a term of probation or her sentence would automatically discharge. Tex. Code Crim. Proc. art. 42.12 6(e). However, due to the twenty-year sentence, Applicant was rejected by the SAFPF. (1) When she was returned to the trial court, the court imposed a sentence of twenty years confinement. Applicant did not perfect an appeal.

Applicant filed the instant application alleging, among other things, that her plea was unknowing and involuntary because she did not receive the benefit of her plea bargain agreement with the State. Applicant also claims that her plea was involuntary because counsel failed to properly advise her of the consequences of her plea.

The trial court has determined that Applicant is entitled to habeas corpus relief. In doing so, the trial court has entered findings of fact that include, in relevant part, the following:

Applicant understood that she would be incarcerated a maximum of one year if she pled guilty and accepted a sentence that included the SAFPF program.



Applicant would not have agreed to plead guilty if she had understood that she would have to serve more than one year in custody.

 

Applicant did not receive the benefit of the plea bargain agreement made with the State because it could not be achieved.

 

Applicant's attorney did not adequately explain to applicant the law as it applied to her factual situation.



Additionally, the trial court has entered conclusion of law. These conclusions include, in pertinent part, the following:

As a result of Applicant's attorney's advice and explanation of the law, as buttressed by the State's agreement to, and the trial court's findings of fact and conclusions of law, or a combination of these factors, applicant's guilty plea was not knowing and voluntary if she was not entitled to enter in the SAFPF program and/or discharge her sentence.

 

As result of Applicant's attorney's advice and explanation of the law, as buttressed by the State's agreement to, and the trial courts findings of fact and conclusions of law, or a combination of these factors, applicant did not receive effective assistance of counsel. Had applicant understood that she might not be accepted into the SAFPF and that she would then be required to serve her 20-year sentence, she would not have pled guilty.



After a review of the record, we agree with the trial court's findings and find that Applicant is entitled to habeas corpus relief. The judgment and sentence in cause number 648315 from the 351st Judicial District Court of Harris County, Texas is vacated. Applicant is remanded to the custody of the Sheriff of Harris County for a new trial.

A copy of this opinion shall be sent to the Department of Criminal Justice, Institutional Division.



DO NOT PUBLISH

DELIVERED: March 10, 2004

1. Under Texas Penal Code, Section 12.422(a)(2) in order for a defendant to have been eligible for the imposition of substance abuse felony punishment, the court could not have imposed a sentence of more than ten years or less than two years imprisonment.