Ex Parte Carillo

687 S.W.2d 320, 1985 Tex. Crim. App. LEXIS 1243
CourtCourt of Criminal Appeals of Texas
DecidedMarch 6, 1985
Docket69385-69387
StatusPublished
Cited by66 cases

This text of 687 S.W.2d 320 (Ex Parte Carillo) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ex Parte Carillo, 687 S.W.2d 320, 1985 Tex. Crim. App. LEXIS 1243 (Tex. 1985).

Opinions

OPINION

CAMPBELL, Judge.

This is a post-conviction habeas corpus proceeding under Art. 11.07, V.A.C.C.P. See Ex Parte Young, 418 S.W.2d 824 (Tex.Cr.App.1967).

The facts show applicant appeared before the trial court on September 8, 1980, and entered pleas of guilty to two charges of aggravated robbery in Palo Pinto County in trial court Cause Nos. 7656A and 7658A and received two (2) concurrent life sentences for same, and that on September 12, 1980, he received a life sentence for aggravated robbery in Parker County in trial court Cause No. 8550, to run concurrent with the two Palo Pinto causes. In exchange for pleas of guilty, the prosecutors in both counties agreed to recommend to the respective trial courts that the sentences run concurrently; that additional charges in Texas and New Mexico be dropped, and that life terms be assessed. After accepting applicant’s pleas of guilty, the plea bargain agreements were submitted to and approved by the respective trial courts.

Applicant now contends that he is “illegally confined and restrained of his liberty because his pleas of guilty were not freely, knowingly, and voluntarily entered in that his attorney advised him that his initial parole eligibility date on a life sentence would be twelve years hence, and applicant pled guilty believing his initial parole eligibility would be reached in twelve years — .” He contends that this advice was erroneous; that he relied on it to his detriment, and that, ergo, his pleas of guilty were involuntary.

Additionally, applicant contends he was denied the effective assistance of counsel in that his counsel failed to investigate the law as it applied to parole.

This cause was abated to the respective trial courts and an evidentiary hearing was conducted in Palo Pinto County on April 18, 1984, and in Parker County on June 26, 1984, with all parties present.

At both evidentiary hearings, applicant testified that his attorney advised him prior to the pleas that he (the applicant) would be eligible for parole in seven (7) to twelve (12) years; that he relied upon this advise in deciding whether to plead guilty, and that he discovered, after being incarcerated at the Texas Department of Corrections, that he would not be eligible for parole until the expiration of twenty (20) calendar years.

The prosecuting attorneys for the respective counties take the position that the only [322]*322inducements offered to applicant to obtain his plea were the agreement to dismiss other pending indictments and the promise to recommend that the three life terms would run concurrently. Insofar as the respective prosecuting attorneys and trial judges are concerned, such is a fair and accurate representation of the events that transpired.

Upon direct examination at the Palo Pinto County hearing, applicant’s trial attorney was questioned with regard to advice given to the applicant on the subject of parole. Trial counsel testified that he advised applicant that he would “probably be considered for parole in approximately twelve years,” and when asked by appellate counsel if he was aware of the provision in Art. 42.12, Sec. 15(b), V.A.C.C.P., trial counsel replied, in pertinent part: “I was not aware of the twenty year flat requirement under that particular statute.”

Additionally, the record contains a letter dated July 16, 1981, from trial counsel to applicant, advising applicant that he (applicant) could expect to serve twelve years, and perhaps even less, with “trusty time and other credits.”

Applicant testified that he became concerned about his parole situation when he was told by an employee of the Board of Pardons and Paroles that parole would not be a consideration until twenty calendar years had been served. He then wrote a letter to his trial counsel and received the reply of July 16, 1981, documented ante. Applicant testified that he then consulted with a member of the Staff Counsel for Inmates. Staff counsel David Payne then contacted trial counsel by letter, and subsequently received a letter, contained in the record, from trial counsel dated December 15, 1983, substantially confirming the advice given to applicant in the July 16th letter. Finally, applicant testified that, but for the advice of counsel concerning parole, he would not have entered guilty pleas.

Applicant relies on this Court’s opinion in Ex Parte Young, 644 S.W.2d 3 (Tex.Cr.App.1983), wherein we held, inter alia, that “if the defendant is grossly misinformed about his parole eligibility date by his attorney, and the defendant relies upon that misinformation to the extent that it induces him to plead guilty or nolo conten-dere, his plea may be rendered involuntary.” at pg. 5 [emphasis added] We find the facts in the instant case to be inappo-site to those illuminated in Ex Parte Young, supra, hereinafter called Young.

In Young, trial counsel advised the defendant that, if there were a negative finding of the use of a deadly weapon, the defendant would only serve three years of a fifteen year sentence, when in truth and in fact, the defendant would have to serve a minimum of five years calendar time. See Art. 42.12, Sec. 15(b), supra. As pointed out in the opinion, the “trial court also labored under this misunderstanding of the law in that he followed the ‘plea bargain’ to not enter an affirmative finding that a deadly weapon was used.” at pg. 4 [emphasis in original]. Thus in Young, the agreement was made a part of the plea bargain and sanctioned by the trial court. Additionally, the trial judge made findings of fact and conclusions of law, recommending that relief be granted. Thus there was no disputed fact issue to be resolved in Young.

In the instant case, we observe that the subject of parole was expressly discussed with appellant during his guilty plea in Parker County in trial court Cause No. 8550. The following colloquy occurred between the appellant and the trial judge therein:

“THE COURT: Have you been influenced to make your plea by any consideration of fear of any persuasion or delusive hope you might receive a pardon or parole?
“THE DEFENDANT: No, sir.
“THE COURT: Has anybody told you anything about what you could expect in the way of being eligible for parole on a Life sentence or anything like that?
“THE DEFENDANT: No, sir, but I’m aware of it.
[323]*323“THE COURT: You’ve been down before?
“THE DEPENDANT: Yes, sir.
“THE COURT: How many times?
“THE DEFENDANT: Once sir.

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Bluebook (online)
687 S.W.2d 320, 1985 Tex. Crim. App. LEXIS 1243, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ex-parte-carillo-texcrimapp-1985.