
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN





NO. 03-02-00481-CR


Jimmey Gene Jolly, Appellant

v.


The State of Texas, Appellee






FROM THE DISTRICT COURT OF MCCULLOCH COUNTY, 198TH JUDICIAL DISTRICT

NO. 4685, HONORABLE EMIL KARL PROHL, JUDGE PRESIDING



M E M O R A N D U M   O P I N I O N


A jury found appellant Jimmey Gene Jolly guilty of delivering more than one-fourth
ounce of marihuana.  Tex. Health & Safety Code Ann. § 481.120(a), (b)(3) (West Supp. 2003).  The
jury assessed punishment at incarceration in state jail for two years and a $1000 fine.  In his only
point of error, appellant contends his trial counsel rendered ineffective assistance.  The State agrees,
confessing error.  We will reverse the conviction and remand for further proceedings.
Appellant raised the ineffective assistance issue in a motion for new trial filed after
he obtained new counsel.  Appellant, his trial counsel, and the prosecuting attorney testified at the
hearing on the motion.  Their testimony shows: (1) appellant wanted to request probation should he
be convicted, (2) counsel failed to inform appellant of a plea-bargain offer by the prosecutor for a
probated sentence, and (3) counsel recommended going to the jury for punishment, not knowing that
it could not recommend probation in this case.  See Tex. Code Crim. Proc. Ann. art. 42.12, § 4(d)(2)
(West Supp. 2003).
The failure of defense counsel to inform appellant of the plea-bargain offer was an
omission that falls below an objective standard of professional reasonableness.  Ex parte Lemke, 13
S.W.3d 791, 795 (Tex. Crim. App. 2000).  The proper remedy is to reinstate the plea offer and allow
the defendant to replead.  Id. at 798.
The judgment of conviction is reversed, and the cause is remanded to the district court
with instructions to withdraw appellant's guilty plea, reinstate the plea-bargain offer, and allow
appellant to enter a new plea to the indictment.


				__________________________________________
				Mack Kidd, Justice
Before Justices Kidd, Yeakel and Patterson
Reversed and Remanded
Filed:   April 17, 2003
Do Not Publish
