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Click here for the full text of this decision FACTS:Authorities charged Steven Donald Insall with possession with intent to deliver more than 400 grams of gamma hydroxybutrate, which is a Penalty Group 1 controlled substance under Texas Controlled Substances Act �481.102(9). The offense carried a punishment range of 15 to 99 years, or life, in prison and a fine not to exceed $250,000. Insall and the state entered into a plea bargain under which the state recommended to the convicting court that Insall be placed on deferred adjudication community supervision (deferred adjudication probation) for 10 years and pay a $1,000 fine in exchange for, among other things, Insall’s guilty plea and his waiver of his right to seek an application for a writ of habeas corpus under Texas Code of Criminal Procedure Art. 11.07. The trial court accepted the plea bargain, placed Insall on deferred adjudication probation for 10 years and assessed a $1,000 fine. The habeas corpus record indicated that the trial court followed the usual procedures in ensuring that Insall made his guilty plea voluntarily. The plea papers also stated that Insall could be sentenced to 15 years to 99 years or life in prison if he violated any condition of his deferred adjudication probation. Insall subsequently violated several conditions of his probation. The trial court adjudicated Insall guilty and sentenced him to life in prison. The habeas record did not reflect that Insall claimed he was unaware that he could be sentenced to life imprisonment when the trial court assessed this sentence. Insall sought a writ of habeas corpus. He claimed that his guilty plea was involuntary, because he did not understand that the convicting court could sentence him to life imprisonment if he violated his probation and his guilt was adjudicated. The state claimed that the CCA should not consider the merits of this claim, because Insall waived his right to seek habeas corpus relief in exchange for the consideration that Insall received from the state as part of the parties’ plea bargain. HOLDING:The CCA denied Insall’s application for a writ of habeas corpus on the merits. The state asserted that a waiver of a right to file an application for writ of habeas corpus under Art. 11.07 is enforceable against a defendant when the waiver was knowingly, intelligently and voluntarily given. The CCA stated that this contention was a correct statement of the law under CCA case law. The CCA stated, however, in its 2006 decision Ex Parte Delaney that such a waiver may not be valid in a deferred adjudication case if “the plea agreement does not contain a recommended punishment to be imposed if guilt is adjudicated.” The CCA further stated in Delaney that simply knowing the range of punishment for the offense was not enough to make the waiver of appeal voluntary. Under the reasoning of Delaney, the CCA stated, Insall’s waiver of his right to seek habeas relief was involuntary or not “knowingly and intelligently made,” because the plea agreement contained only the range of punishment and not a certain punishment to be imposed if guilt was adjudicated. The CCA nevertheless agreed with the state that under the facts of this case the record also supported the trial court’s conclusion that Insall “was aware that he could be sentenced to life in prison if his deferred adjudication was revoked and he was adjudicated guilty.” The CCA therefore rejected Insall’s claim that his plea was involuntary on its merits. OPINION:Hervey, J., delivered the opinion of the court in which Keller, P.J., Meyers, Womack, Keasler and Cochran, J.J., joined. DISSENT:Johnson, J., filed a dissenting opinion in which Price and Holcomb, J.J., joined. “Today, the Court creates a Catch-22 for the prosecutor and the trial court. A defendant’s waiver of the right to seek relief through a writ of habeas corpus is involuntary and not knowingly and intelligently made unless that defendant knows what certain punishment will be imposed upon adjudication of guilt, i.e., if the plea agreement does not contain a recommended punishment to be imposed if guilt is adjudicated. The catch is that our precedent holds that a purported”plea-bargain agreement’ on a motion to revoke community supervision, and presumably deferred-adjudication, is not enforceable, and the trial court is free to refuse it with impunity. . . . Thus no bargaining defendant can be certain of the punishment that will be assessed at the time of revocation or adjudication.”

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