out portions of Mallory's testimony at the sentencing hearing in which he was asked if he would hire appellant again "if the judge saw fit to place him on some sort of probation or deferred adjudication." Mallory denied that because of the conditional nature of the question, he may have misunderstood it and averred he did not believe he misunderstood Kenneth.
In response to the testimony of Bordwine and Mallory, the State produced affidavits and testimony from the Mingledorffs as well as Cox-DeRosa. With regard to the punishment issue, in his affidavit, Kenneth averred that he informed appellant that the range of punishment was five to 99 years, but that the court could grant deferred adjudication on a guilty plea. He also said he informed appellant of his rightwith appellant in which appellant was told the range of punishment was from five years to life and there was "no guarantee of a deferred adjudication."
Moreover, both Mingledorffs testified at the new trial hearing. Kenneth testified about the extensive communications he had with appellant on the telephone, through letters, and in person. He said appellant expressed concern about the fact that another defendant accused of assaulting the same victim had been assessed a 30-year penal confinement sentence. Kenneth again asserted that he informed appellant the could received up to a 99 year sentence, but that deferred adjudication was a possibility, although "a long shot." He also talked about the importance of preparations for the sentencing hearing and why that was so. On the day of the hearing, Kenneth