OPINION
MEYERS, J.,
delivered the opinion of the Court, joined by
MANSFIELD, PRICE, HOLLAND, WOMACK, JOHNSON and KEASLER, J.J.
On December 13, 1993, applicant pled guilty to nine separate offenses: six for Unlawful Delivery of Cocaine and three for Possession of Cocaine. In exchange for his guilty pleas, the State recommended that applicant be sentenced to forty years confinement for each of the delivery offenses and twenty years confinement for each of the possession offenses, all to run concurrently. Applicant was sentenced in accordance with the State’s recommendation.
On August 17, 1994, applicant filed in the district court an Application for Writ of Habeas Corpus (the “initial application”), alleging he was deprived of effective assistance of counsel on the ground that his trial lawyer had been disbarred at the time of his representation of applicant. The initial application was denied by this Court on May 17, 1995. Applicant filed in the district court a second application for writ of habeas corpus (the “instant application”) on November 28, 1995.
In the instant application, applicant alleges he was denied effective assistance of counsel on the ground that his attorney did not inform him of plea bargain offers made by the State.
We ordered an evidentiary hearing and the trial court entered Findings of Fact. We dismissed the instant application on February 5, 1997. Applicant filed a Motion for Reconsideration (On the Court’s Own Motion) of the Refusal to Grant Relief in Application for Writ of Habeas Corpus (“Motion for Reconsideration”), arguing that the instant application should not be barred as a “subsequent application” under Texas Code of Criminal Procedure article 11.07, section 4, because applicant did not become aware of the facts giving rise to the instant application until several months after the initial application was denied. We granted the Motion for Reconsideration and filed and set the instant application for submission.
I. Section 4
We initially address whether the instant application is barred as a “subsequent application” under Section 4, or whether it falls within an exception to such bar. Section 4 provides, in relevant part:
(a) If a subsequent application for writ of habeas corpus is filed after final disposition of an initial application, challenging the same conviction, a court may not consider the merits of or grant relief based on the subsequent application unless the application contains sufficient specific facts establishing that:
(1) the current claims and issues have not been and could not have been presented previously in an original application or in a previously considered application filed under this article because the factual or legal basis for the claim was unavailable on the date the applicant filed the previous application!)]
(c) For purposes of Subsection (a)(1), a factual basis of a claim is unavailable on or before a date described by Subsection (a)(1) if the factual basis was not ascertainable through the exercise of reasonable diligence on or before that date.
Tex.Code Crim. Proc. art. 11.07 § 4. Thus, we are barred from considering the merits of the instant application unless the facts giving rise to the claims made in the instant application (the existence of the State’s plea bargain offers) could not have been presented in the initial application because they were “not ascertainable through the exercise of reasonable diligence on or before” the date of the initial application.
On May 27, 1994, applicant’s trial attorney, William Satterwhite, Jr., was indicted in Jackson County for falsely holding himself out as an attorney to applicant. Tex. Penal Code § 38.122 (felony offense of Falsely Holding Oneself Out as a Lawyer);
see Satterwhite v. State,
979 S.W.2d 626 (Tex.Crim.App.1998)(affirming Satterwhite’s conviction under section 38.122). In August of 1995, several months after this Court’s denial of the initial application, applicant was bench warranted to Jackson County to testify against Satterwhite pur
suant to the section 38.122 charges. During the course of preparing for such testimony, in a conversation with Jackson County District Attorney Robert E. Bell, the same district attorney who had prosecuted applicant’s underlying conviction, applicant learned that the State had made two plea offers (for twenty and sixteen years) that were never communicated to him.
Applicant testified that during his pending cases Satterwhite had repeatedly told him that there were no plea bargain offers on the table. Applicant’s wife also testified that she was present during many discussions between applicant and Satter-white and at no time during those meetings did Satterwhite inform applicant of any plea bargain offers by the State for sixteen and twenty years.
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OPINION
MEYERS, J.,
delivered the opinion of the Court, joined by
MANSFIELD, PRICE, HOLLAND, WOMACK, JOHNSON and KEASLER, J.J.
On December 13, 1993, applicant pled guilty to nine separate offenses: six for Unlawful Delivery of Cocaine and three for Possession of Cocaine. In exchange for his guilty pleas, the State recommended that applicant be sentenced to forty years confinement for each of the delivery offenses and twenty years confinement for each of the possession offenses, all to run concurrently. Applicant was sentenced in accordance with the State’s recommendation.
On August 17, 1994, applicant filed in the district court an Application for Writ of Habeas Corpus (the “initial application”), alleging he was deprived of effective assistance of counsel on the ground that his trial lawyer had been disbarred at the time of his representation of applicant. The initial application was denied by this Court on May 17, 1995. Applicant filed in the district court a second application for writ of habeas corpus (the “instant application”) on November 28, 1995.
In the instant application, applicant alleges he was denied effective assistance of counsel on the ground that his attorney did not inform him of plea bargain offers made by the State.
We ordered an evidentiary hearing and the trial court entered Findings of Fact. We dismissed the instant application on February 5, 1997. Applicant filed a Motion for Reconsideration (On the Court’s Own Motion) of the Refusal to Grant Relief in Application for Writ of Habeas Corpus (“Motion for Reconsideration”), arguing that the instant application should not be barred as a “subsequent application” under Texas Code of Criminal Procedure article 11.07, section 4, because applicant did not become aware of the facts giving rise to the instant application until several months after the initial application was denied. We granted the Motion for Reconsideration and filed and set the instant application for submission.
I. Section 4
We initially address whether the instant application is barred as a “subsequent application” under Section 4, or whether it falls within an exception to such bar. Section 4 provides, in relevant part:
(a) If a subsequent application for writ of habeas corpus is filed after final disposition of an initial application, challenging the same conviction, a court may not consider the merits of or grant relief based on the subsequent application unless the application contains sufficient specific facts establishing that:
(1) the current claims and issues have not been and could not have been presented previously in an original application or in a previously considered application filed under this article because the factual or legal basis for the claim was unavailable on the date the applicant filed the previous application!)]
(c) For purposes of Subsection (a)(1), a factual basis of a claim is unavailable on or before a date described by Subsection (a)(1) if the factual basis was not ascertainable through the exercise of reasonable diligence on or before that date.
Tex.Code Crim. Proc. art. 11.07 § 4. Thus, we are barred from considering the merits of the instant application unless the facts giving rise to the claims made in the instant application (the existence of the State’s plea bargain offers) could not have been presented in the initial application because they were “not ascertainable through the exercise of reasonable diligence on or before” the date of the initial application.
On May 27, 1994, applicant’s trial attorney, William Satterwhite, Jr., was indicted in Jackson County for falsely holding himself out as an attorney to applicant. Tex. Penal Code § 38.122 (felony offense of Falsely Holding Oneself Out as a Lawyer);
see Satterwhite v. State,
979 S.W.2d 626 (Tex.Crim.App.1998)(affirming Satterwhite’s conviction under section 38.122). In August of 1995, several months after this Court’s denial of the initial application, applicant was bench warranted to Jackson County to testify against Satterwhite pur
suant to the section 38.122 charges. During the course of preparing for such testimony, in a conversation with Jackson County District Attorney Robert E. Bell, the same district attorney who had prosecuted applicant’s underlying conviction, applicant learned that the State had made two plea offers (for twenty and sixteen years) that were never communicated to him.
Applicant testified that during his pending cases Satterwhite had repeatedly told him that there were no plea bargain offers on the table. Applicant’s wife also testified that she was present during many discussions between applicant and Satter-white and at no time during those meetings did Satterwhite inform applicant of any plea bargain offers by the State for sixteen and twenty years.
“Reasonable diligence” within the context of Section 4 has not been defined or explored by this Court. The term suggests at least some kind of inquiry has been made into the matter at issue.
Cf. Anderson v. State,
621 S.W.2d 805, 809 (Tex.Crim.App.1981)(in context of best evidence rule, stating that production of original document depends on circumstances of each case, the only requirement being that “all reasonable avenues of search should be explored to the extent that reasonable diligence under the circumstances would dictate” and holding that copy should be admitted where “a reasonable effort has been made to obtain the original and there is no suspicion that the copy might differ from the original” );
Jordan v. State,
520 S.W.2d 388 (Tex.Crim.App.l975)(viewing “reasonable diligence” by grand jury as some inquiry of the relevant witnesses on the issue). In the instant case, the plea bargain offers were not made a part of the record, so any review of the record would not have uncovered their existence. Applicant testified he asked Satterwhite during the pending cases whether the State had made any plea bargain offers, and Satter-white told him repeatedly that the State had made no offers.
We hold applicant exercised “reasonable diligence” by making several inquiries of his lawyer as to the existence of plea bargain offers by the State. Applicant was not required to query the district attorney about the existence of a plea bargain offers when he had been assured by his attorney that there were none. Given that applicant had pre
viously asked his attorney about the existence of plea bargain offers, was told that none were made, and applicant otherwise did not doubt his attorney’s representations,
applicant satisfied section 4’s requirement of “reasonable diligence.”
We conclude the instant application “contains sufficient specific facts establishing” that applicant’s claim is one that could not have been presented in the initial application because the factual basis for the claim was “unavailable” (in that it was not ascertainable through the exercise of reasonable diligence) on the date the initial application was filed. We therefore address the merits of applicant’s claim.
II. Ineffective Assistance of Counsel
In order to establish a claim for ineffective assistance of counsel, applicant must prove that (1) counsel’s representation fell below an objective standard of reasonableness; and (2) counsel’s deficient performance resulted in prejudice to the defense.
Ex parte Wilson,
724 S.W.2d 72, 73 (Tex.Crim.App.1987) (applying two-part test set forth in
Strickland v. Washington,
466 U.S. 668, 104 S.Ct. 2052, 80 L.E.2d 674 (1984)). Failure of defense counsel to inform a criminal defendant of plea offers made by the State is an omission that falls below an objective standard of professional reasonableness.
Id.
at 73-74 (failure of counsel to advise defendant of plea bargain offer by government constitutes “gross deviation from accepted professional standards”);
see also United States v. Blaylock,
20 F.3d 1458, 1466 (9 th Cir.1994) (failure to communicate plea bargain offer constitutes unreasonable performance under prevailing professional standards);
Johnson v. Duckworth,
793 F.2d 898, 902 (7 th Cir.) (recognizing defense attorneys have duty to inform clients of plea agreements proffered by state and failure to do so constitutes ineffective assistance),
cert. denied,
479 U.S. 937, 107 S.Ct. 416, 93 L.Ed.2d 367 (1986);
United States ex rel. Caruso v. Zelinsky,
689 F.2d 435, 438 (3rd Cir.1982)(failure to communicate plea bargain offer is denial of 6th and 14th amendment rights);
Barentine v. United States,
728 F.Supp. 1241, 1251 (W.D.N.C.)(“feder
al courts have been unanimous in finding that [defense counsel’s failure to inform the defendant of a plea offer] constitutes a violation of the defendant’s Sixth Amend-, ment constitutional right to effective assistance of counsel”),
aff'd,
908 F.2d 968 (4 th Cir.1990).
In its Findings of Fact on the instant application, the trial court found that (1) prior to applicant’s guilty pleas, the State had conveyed to applicant’s attorney a plea bargain offer of twenty years and an amended plea bargain offer of sixteen years; (2) applicant’s attorney never advised applicant of the State’s plea bargain offers of twenty and sixteen years; (3) applicant would have accepted the State’s proposed plea bargain offer of twenty years, if it had been conveyed to him; (4) applicant would have accepted the State’s amended plea bargain offer of sixteen years, if it had been conveyed to him; and (5) at the time applicant entered his pleas of guilty on December 13, 1993, in exchange for a plea bargain offer of forty years as to the six delivery offenses and twenty years as to the three possession offenses, applicant was not aware of and had not been advised of, any prior plea bargain offers by the State.
The trial court’s findings are supported by the record. While this Court is not bound by the findings of a habeas court, we should follow them where they are supported by the record.
Ex parte Minott,
972 S.W.2d 760, 761 (Tex.Crim.App.1998);
Ex parte Torres,
943 S.W.2d 469, 476 (Tex.Crim.App.1997);
Ex parte Brandley,
781 S.W.2d 886 (Tex.Crim.App.1989), ce
rt. denied,
498 U.S. 817, 111 S.Ct. 61, 112 L.Ed.2d 35 (1990);
Ex parte Adams,
768 S.W.2d 281 (Tex.Crim.App.1989). We therefore accept the trial court’s findings that the State conveyed two plea bargain offers to applicant’s attorney (the first offer was for twenty years, and the second offer for sixteen years) that were never communicated to applicant, and that applicant would have accepted either offer had they been communicated to him. Satterwhite’s failure to inform applicant of the State’s plea bargain offers was an omission that fell below an objective standard of reasonableness.
Wilson,
724 S.W.2d at 74.
The further question is whether applicant was prejudiced by Satterwhite’s unprofessional conduct. ■ While a trial court is not obligated to accept the terms of a bargain reached by the parties, courts generally have not required that the defendant show the trial court would have accepted a plea bargain in establishing prejudice in these circumstances. The prevailing view is that a defendant is prejudiced by the missed opportunity of accepting such bargain and presenting it to the trial court for consideration in sentencing.
Caruso,
689 F.2d at 438 (“[fjailure
by defense counsel to communicate a plea offer to defendant deprives defendant of the opportunity to present a plea bargain for the consideration of the state judge and, on acceptance by the state judge, to enter a guilty plea in exchange for a lesser sentence”);
State v. Simmons,
65 N.C.App. 294, 309 S.E.2d 493, 498 (1983) (because of attorney’s failure to inform defendant of plea bargain offer, defendant was “denied the opportunity to accept the plea offer, which, according to his affidavit, he would have accepted” and in this regard defendant was “clearly prejudiced”). Applicant was deprived of the opportunity of accepting the State’s twenty year plea bargain offer and presenting it to the trial court for consideration in setting applicant’s sentence. We hold applicant was prejudiced in this respect.
Caruso, supra.
III. Remedy
Courts have- held that tailoring the remedy to the injury suffered where defense counsel failed to convey a plea bargain offer means reinstating the offer:
If, after the evidentiary hearing, [the applicant] prevails on his ineffective assistance claim, the district court will have to fashion a remedy that is “tailored to the injury suffered from the constitutional violation and should not necessarily infringe on competing interests.”
United States v. Morrison,
449 U.S. 361, 364, 101 S.Ct. 665, 668, 66 L.Ed.2d 564 (1981). Since the remedy for counsel’s ineffective assistance should put the defendant back in the position he would have been in if the Sixth Amendment violation had not occurred, in certain circumstances granting a new trial may not be the appropriate remedy. Several courts have recognized that where the ineffective assistance occurred
before
trial, as in cases where the harm consisted in defense counsel’s failure “to communicate a plea offer to defendant, ... [granting a] subsequent fair trial does not remedy this deprivation.”
Caruso,
689 F.2d at 438 (citation omitted).
See also, Alvernaz v. Ratelle,
831 F.Supp. 790, 797-99 (S.D.Cal.1993)(Rhoades, J.) (granting specific performance of original plea offer)(citing cases);
Turner,
858 F.2d at
1208 (requiring reinstatement of the original plea offer unless the prosecution can show nonvindictive reasons for withdrawing the offer).
Requiring the government to reinstate its original plea offer is constitutionally permissible, [citations omitted] Thus, where, as here, the defendant was deprived of the opportunity to accept a plea offer, putting him in the position he was prior to the Sixth Amendment violation ordinarily will involve reinstating the original offer. The government may of course, in proper cases, seek to demonstrate that intervening circumstances have so changed the factual premises of its original offer that, with just cause, it would have modified or withdrawn its offer prior to its expiration date....[
]
Requiring the government to reinstate its original offer would also accommodate the policy articulated by the Supreme Court in
Kimmelman v. Morrison,
477 U.S. 365, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986), where the Court held that “[t]he Constitution constrains our ability to allocate as we seé fit the cost of ineffective assistance. The Sixth Amendment mandates that the State [or the government] bear the risk of constitutionally deficient counsel.
Id.
at 379, 106 S.Ct. at 2585. Under
Kimmelman,
even if one might perceive that the government’s competing interest might be infringed by requiring that the original offer be reinstated, a contrary result would impermissibly shift the risk of ineffective assistance from the government to [the defendant].
Blaylock,
20 F.3d at 1468-69. We agree with this rationale and hold the harm suffered as a result of applicant’s ineffective counsel is best redressed by reinstatement of the State’s plea bargain offer of twenty years.
Relief is granted. These causes are remanded to the trial court with orders that the trial court withdraw applicant’s pleas, require the State to reinstate its twenty year plea bargain offer,
and allow applicant to re-plead to the indictments in these causes.
KELLER, J., concurs in Part I and otherwise joins the opinion.
McCORMICK, P.J., concurs.