Opinion filed July 29, 2010




                                              In The


   Eleventh Court of Appeals
                                           __________

                                      No. 11-10-00030-CR
                                          __________

                      TIMOTHY PURCELL GILPIN, Appellant
                                    V.
                          STATE OF TEXAS, Appellee


                              On Appeal from the 220th District Court

                                     Comanche County, Texas

                         Trial Court Cause No. 98-01-02063-CCCR-A


                              MEMORANDUM OPINION
       This is an appeal from the trial court’s order denying an application for writ of habeas
corpus. TEX. R. APP. P. 31. The appeal was abated in order that the trial court could enter
appropriate findings under TEX. CODE CRIM. PROC. ANN. art. 11.072, § 7(a) (Vernon 2005).
Based on the trial court’s findings that a new trial should be granted, the order denying the
application is reversed, and the cause is remanded to the trial court for a new trial.
       The trial court originally convicted Timothy Purcell Gilpin, upon his plea of guilty, of the
offense of misapplication of fiduciary property and assessed his punishment at confinement for
six years. Pursuant to the plea bargain agreement, the trial court suspended the imposition of the
sentence and placed appellant on community supervision for six years. Appellant filed an
application for writ of habeas corpus pursuant to TEX. CODE CRIM. PROC. ANN. art. 11.072
(Vernon 2005) contending that his plea of guilty was not knowingly, voluntarily, or intelligently
entered and that he had not received effective assistance from his trial counsel. Appellant argued
that his trial counsel failed to advise him that he could avoid deportation if he would accept the
offer of deferred adjudication. He did not pursue deferred adjudication, was adjudicated guilty
and placed on community supervision, and now faces deportation.
          In response to our abatement, the trial court found that trial counsel knew appellant was
not a citizen of the United States, that trial counsel negotiated plea options of either deferred
adjudication or “regular probation,” and that appellant chose “regular probation” because he was
unable to pay his restitution up front as required by the deferred adjudication plea agreement due
to bankruptcy. The trial court further found that trial counsel was not aware and did not warn
appellant that a plea to “regular probation” would necessarily result in his deportation. In its
findings, the trial court stated that trial counsel did advise appellant that he did not have to enter
into a plea bargain if he had any questions, that trial counsel told appellant that he would refer
him to immigration counsel if appellant wanted, and that appellant would not have pleaded guilty
pursuant to the agreement if he had known that deportation would necessarily have been the
result.
          The trial court then concluded that appellant’s plea was involuntarily and unknowingly
made because he was unaware that deportation would necessarily be the result. The trial court
also concluded that appellant should be granted the relief he requested in his application: a new
trial.
          Therefore, we sustain appellant’s arguments that his plea was neither knowingly nor
voluntarily entered. The order denying the application is reversed, and the cause is remanded to
the trial court for a new trial.


                                                              PER CURIAM


July 29, 2010
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.


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