dissenting.
Notwithstanding that the judge of the convicting court found “applicant relied on his attorney’s advice [that he would be eligible for good time and would be eligible for parole in eighteen to twenty months] and was induced [by that erroneous advice] to enter his plea of guilty, the majority dismisses those findings in favor of what it thinks, viz:
*280“We think, then, that the speculative nature of parole attainment is such as to discount its legal importance on the subject of voluntariness of a guilty plea. This legal importance is discounted to the extent that erroneous advice of counsel on the subject of parole eligibility will not render the plea involuntary.”1
Presumably the majority is working under an impression that the “standard” to measure voluntariness of a guilty plea is “as stated” in Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970), viz: “The rule that a plea must be intelligently made to be valid does not [in order to be violated] require that a plea be vulnerable to later attack if the defendant did not correctly assess every relevant factor entering into his decision.” On the face of it, the socalled “rule” relates to intelligently making a plea — not the voluntary nature of the plea.
Though the majority believes that some courts “intermingle the concepts of a knowing, intelligent or voluntary plea so that [given a failing of either], the plea is said to be involuntary,” the Supreme Court of the United States understands and insists that the constitutional rule requires the record to show a guilty plea is both intelligent and voluntary.2 It all goes back to Boykin v. Alabama, 395 U.S. 238, at 242-244, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Indeed, the Brady Court took great pains to make a separate analysis of each requirement.
First it restated that voluntariness of a plea “can be determined only by considering all the relevant circumstances surrounding it.” Examining relevant circumstances the Supreme Court found in effect that an otherwise voluntary plea was not rendered involuntary by the fact that it was entered pursuant to a plea bargain “influenced by the fear of a possibly higher penalty for the crime charged if a conviction is obtained after the State is put to its proof,” id., 397 U.S. at 750-751, 90 S.Ct. at 1470. Under the standard of voluntariness formulated by Judge Tuttle for the Court of Appeals for the Fifth Circuit in Shelton v. United States, 246 F.2d 571, 572 n. 2 (CA5 1957) (En Banc),3 the Supreme Court ended part II of the opinion by concluding that “a plea of guilty is not invalid merely because entered to avoid the possibility of a death penalty,” 397 U.S. at 755, 90 S.Ct. at 1472.
Part III of the Brady opinion begins: “The record before us also supports the conclusion that Brady’s plea was intelligent:’ Id., 397 U.S. at 756, 90 S.Ct. at 1473. And it is this part from which the majority extracts a single sentence from a discussion about that matter over several lengthy paragraphs — a sentence so general that when read in context does not even purport to pronounce a standard. Better to call a standard in the Brady context that which I excerpted from the discussion and reproduced in my concurring opinion just the other day in Ex parte Gibauitch, 688 S.W.2d 868 (Tex.Cr.App.1985), viz:
“More particularly, absent misrepresentations or other impermissible conduct by state agents ..., a voluntary plea intelligently made in light of the then applicable law does not become vulnerable because later judicial decisions indicate the plea rested on a faulty premise. A plea of guilty triggered by the expectations of a competently counseled defendant that the State will have a strong case against him is not subject to later attack because the defendant’s lawyer correctly advised him with respect to the then existing penalties but later pro*281nouncements of the courts ... hold the maximum penalty ... was less than reasonably assumed at the time the plea was entered.”
Id., 397 U.S. at 757, 90 S.Ct. at 1473. Thus in determining whether a plea of guilty is intelligent the focus of Brady is on counsel’s giving correct advice as to then existing penalties.
Without any doubt the advice given applicant with respect to existing penalties is not correct. However, signaling where it is going by recognizing as a “common practice” what it characterizes as “the guessing game of parole eligibility,” the majority comes to a way station: “But eligibility for parole is a fluctual societal decision, highly subject to change.” One cannot be certain just what meaning is intended in that observation, especially in light of the fact everyone involved in this cause now knows for certain that present law dictates applicant serve at least forty months before becoming eligible for parole. On the other hand, if is meant that while he is in prison society, through its legislative representatives, might decide to change the law of parole eligibility to affect applicant, the majority overlooks the fact that without recent notable exception every enacted amendment to Article 42.12, including the one ensnaring counsel here, has expressly provided that the change is applicable “only to inmates sentenced to the Texas Department of Corrections for an offense committed on or after the effective date of this Act [and inmates] sentenced for an offense committed prior to the effective date of this Act are governed by the law existing before the effective date of this Act, which is continued in effect for this purpose.” See Acts 1977, 65th Leg., ch. 347, p. 934, § 7.
Drawing from his concurring opinion in Ex parte Carillo, 687 S.W.2d 320 (Tex.Cr.App.1985), the author of the majority opinion in the instant cause seems preoccupied with the “speculative nature” of attaining parole. It occurs to me, however, the matter still is of utmost importance to an accused such that usually he is the one to broach it, and since it is ‘ common practice to include the subject of parole eligibility in negotiations leading to a plea bargain — and the majority is quite willing to grant relief when an understanding reached by attorneys for the parties, albeit an incorrect one, is “elevated to the status of an element of the plea bargain” and is relied on by an accused — a similar detrimental reliance on a misunderstanding unilaterally communicated by his counsel should likewise render the plea of an accused just as involuntary and unintelligent. There seems to be little difference in principle — unless it is that mutuality of mistake is to be rewarded but erroneous advice of counsel to his client is merely part and parcel of risk assumed in entering a plea.
To such disparate treatment I respectfully dissent.
. Emphasis by majority; all other emphasis throughout this opinion is mine unless otherwise indicated.
. There are expressions from this Court to the same effect. See, e.g., Meyers v. State, 623 S.W.2d 397, 401-402 (Tex.Cr.App.1981), from which the majority opinion quotes a portion of a germane part, at page 276.
.“ ‘[A] plea of guilty entered by one fully aware of the direct consequences, including the actual value of any commitments made to him by the court, prosecutor, or his own counsel must stand unless ...”’