TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
v.
The State of Texas, Appellee
NO. 73732, HONORABLE LEONARD GIBLIN, JUDGE PRESIDING
In his only point of error, appellant contends his plea was involuntary because he did not receive effective assistance of counsel. He states that he would not have pleaded guilty if he been told by his attorney that deferred adjudication was not possible and that he could go to prison for ten years.
Erroneous legal advice that prevents a defendant from making an informed and conscious choice about whether to waive his right to a jury trial constitutes ineffectiveness. Ex parte Canedo, 818 S.W.2d 814, 815 (Tex. Crim. App. 1991). If his attorney's misinformation induces a defendant to plead guilt, the plea is involuntary. Ex parte Kelly, 676 S.W.2d 132, 135 (Tex. Crim. App. 1984).
Appellant did not file a motion for new trial and there is no evidence before us regarding the advice appellant received from trial counsel. Before accepting the guilty plea, the district court told appellant, "Now, your lawyer's going to recommend to me that I give you deferred probation. Do you understand that I can go along with his recommendation if I want to, but I don't have to?" Appellant replied, "Yes, sir." The court went on, "You understand I can put you in the penitentiary for 20 years also[?]" Appellant answered, "Yes, sir." Thus, the only relevant evidence indicates that appellant understood that deferred adjudication was not assured and that he could receive up to twenty years' imprisonment.
The opinion on which appellant relies, Ex parte Battle, 817 S.W.2d 81 (Tex. Crim. App. 1991), is distinguishable. Battle was a post-conviction habeas corpus proceeding and the court had before it evidence as to the advice counsel gave the defendant prior to the guilty plea. The evidence established that the defendant pleaded guilty in reliance on his attorney's advice that he might receive probation, when in fact probation was legally unavailable for that offense. In the cause before us, we do not know what counsel told appellant and, in any event, deferred adjudication was not legally foreclosed. See Tex. Code Crim. Proc. Ann. art. 42.12, § 5(a) (West Supp. 1998).
Appellant has not sustained his burden of demonstrating ineffectiveness of counsel. The point of error is overruled and the judgment of conviction is affirmed.
John Powers, Justice
Before Justices Powers, Kidd and B. A. Smith
Affirmed
Filed: August 13, 1998
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