”Influence” Before Guilty Plea Regarding ”probation Possibility”

Is it legal to ''influence'' defendants before guilty plea regarding the possibility of probation ?

In Ramirez v. State, 655 S.W.2d 319 (Tex. App.--Corpus Christi 1983, no pet.), a defendant pled guilty to aggravated robbery, and the trial court assessed punishment at five years confinement.

The record revealed that the defendant was seeking probation from the trial judge because he filed an application for probation.

The trial court advised the defendant that his application "may or may not be granted."

The court of appeals stated that, in the light of the trial court's language in its admonition, it could reasonably be held that the defendant was influenced by the possibility of probation in the entering of his guilty plea.

The court of appeals held that under the circumstances presented by the record, it was incumbent upon the trial court to advise the defendant that he was ineligible for probation if he were found guilty of the offense of aggravated robbery, as charged in the indictment.

The defendant was not so advised, and this provided the harm necessary for reversal under Article 26.13(c). Id. at 322.

In Harrison v. State, 688 S.W.2d 497, 499 (Tex. Crim. App. 1985), the Court stated, "the holding in Ramirez may be correct, insofar as it is error to advise a defendant that he may receive probation when he is statutorily ineligible . . . ."

The Court held that such error would not make a plea involuntary unless a defendant could also show he was unaware of the consequences of his plea and was misled or harmed. Id.

In both Harrison and Ramirez, the trial courts did not initially have a duty under Article 26.13(a)(1) to admonish the defendants on the availability of probation.

However, the trial courts, in both cases, volunteered admonishments that included information as to the availability of probation.