Elizabeth Allen v. State

• Court: Court of Appeals of Texas
• Decided: August 31, 2000
• Docket: 03-99-00649-CR
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

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NO. 03-99-00649-CR

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Elizabeth Allen, Appellant

v.

The State of Texas, Appellee

FROM THE DISTRICT COURT OF HAYS COUNTY, 22ND JUDICIAL DISTRICT

NO. CR-98-0147, HONORABLE CHARLES R. RAMSAY, JUDGE PRESIDING

In a plea bargain, Elizabeth Allen pleaded guilty to the offense of endangering a child. See Tex. Penal Code Ann. § 22.041 (West Supp. 2000). She received a one-year sentence probated for three years. In one point of error, she contends that her plea was involuntary. We will affirm.

Allen contends that her plea was involuntary because induced by misinformation given to her by her attorney. A guilty plea will not support a conviction if the plea is motivated by significant misinformation conveyed by defense counsel. See Ex parte Kelly, 676 S.W.2d 132, 134-35 (Tex. Crim. App.1984); Fimberg v. State, 922 S.W.2d 205, 207 (Tex. App.--Houston [1st Dist.] 1996, pet. ref'd). The reviewing court must determine whether the record supports the contention that the plea was induced by such misinformation. See Ex parte Morrow, 952 S.W.2d 530, 536 (Tex. Crim. App. 1997); Russell v. State, 711 S.W.2d 114, 116 (Tex. App.--Houston [14th Dist.] 1986, pet. ref'd).

The trial court held a hearing on Allen's motion for new trial in which she complained that her plea was involuntary. One of the conditions of Allen's probation was that she receive counseling. At the hearing, she argued that she would not have entered the plea bargain except for her understanding from her attorney that she would not have to pay for any such counseling. Her trial attorney confirmed that he had conveyed such information to her because that was his understanding. Apparently, no one noticed until after entry of judgment that the printed form listing conditions of probation contained a statement that the probationer pay for counseling. However, Allen testified at the hearing that she had been receiving counseling but had not had to pay for it. Her probation officer testified similarly. The court struck the objectionable condition from the conditions of probation.

The evidence at the hearing on Allen's motion for new trial established that she has not had to pay for counseling, so the information on which she based her plea was accurate. The trial court already has reformed the written conditions of probation to conform with the information conveyed to Allen by her attorney. Allen has received exactly that for which she agreed to plead guilty. Accordingly, we overrule her sole point of error and affirm the trial court's judgment of conviction.

B. A. Smith, Justice

Before Chief Justice Aboussie, Justices Kidd and B. A. Smith

Affirmed

Filed: August 31, 2000

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