The Texas Guilty Plea, Part 2: Plea Offers, Plea Bargains, and Judgements

This is the second post in a three-part series about the guilty plea process in Texas criminal Courts.

In the first post I covered how the State of Texas locks in your guilty plea through a series of signed admonishments and waivers.

Today’s post covers the plea bargain and judgment. Please remember, the primary point of describing this (mostly boring) process is to inform clients and their families of the procedural protections created by the Texas Legal System to Protect Judgments and Guilty Pleas. You should at least have a basic familiarity with how the process works before deciding whether it is worth it to later challenge your plea.

Step 1: The Offer Conveyed

One of the basic requirements of a defense attorney is to accurately convey any plea offer made by the prosecutor. As a corollary to this, defense attorneys should always ensure that the prosecutor properly records all offers and counter-offers as the case progresses.

This sounds like an easy enough task, but as prosecutors have gotten loaded up with case and docket management software, sometimes discrepancies can develop between the “real” plea offer and the case summation typed the prosecutor in court or during a meeting with the defense attorney.

For example, a prosecutor may say at the end of a docket that if the client just pays restitution she’ll “probably just dismiss the case.” At this point, the defense attorney should (1) ask the prosecutor to put that offer in the State’s file, and, if the prosecutor complies, then (2) immediately convey that offer to the client. This ensures that the offer is “real” and also ensures that it’s immortalized in the case notes. Too many times the defense attorney will simply tell the client to make arrangements to pay restitution (or do whatever else the prosecutor suggested) only to find out at the next setting that the prosecutor can’t remember that deal. If its not in the State’s case notes, then it might as well have never existed.

Quick counter-offers prior to jury trial can also sometimes lead to client confusion. If a criminal case has an obvious weakness, it’s not uncommon for a prosecutor to informally convey offers to the defense team right before trial. Prosecutors often employ a bluffing strategy, describing offers as “final” when they don’t really want to try a case. No prosecutor wants to make a low-ball offer and get a reputation as an easy mark by the defense bar — they will often hold off on the real final offer until the defense attorney (and the defendant) demonstrate that they are truly committed to trying the case. I’ve seen numerous occasions where defense attorneys failed to convey last-minute offers to their clients, or, at the very least, fail to document these offers in their own files.

Defense attorneys must convey every offer to their client, even if they don’t think the client should accept it or are invested in trying the case. Clients should always check with their lawyer right before jury selection to see if there had been any weekend or last-minute communication with the State.

If you find out later that your lawyer did not convey the State’s final offer, that is a cognizable claim of ineffective assistance of counsel. Not only is it cognizable, but it’s a very winnable claim if you have independent proof that the offer was not conveyed and that if it had been conveyed you would have accepted it.

Remember: save all attorney correspondence! I’ve had clients lose key letters from their lawyers that would have been invaluable evidence in an 11.07 writ of habeas corpus.

2. Judicial Acceptance

Once the prosecutor conveys the offer, you can either accept or reject it. But the deal is not final until the judge accepts it. Yes – even if you want to do the deal, if the judge doesn’t like, she can “bust” the plea.

Judges typically reject pleas they deem too lenient. Remember, judges are elected. During election season, they have to answer for the dispositions of cases coming out of their courts just as much as the District Attorney, if not more so. And, less cynically, judges have moral compasses just like everyone else. Regardless of what the law says, they have the discretion to reject a plea they feel is not just or does not protect the community.

If the judge rejects the plea, you either have to go to trial or “go back to the drawing board” with the prosecutor to figure out a new deal.

Can a judge go too far in rejecting what appears to be a reasonable deal? Great question! I doubt it, but I feel like there’s an equal protection issue there just waiting to get litigated. Proving such a claim would be hard, but not impossible – it’s all about the statistics in that particular court.

If there’s demonstrable racial bias, I believe an equal protection claim might work, as long as there is a record of the details of the “busted” plea.

3. The judgment

If the judge does accept the plea offer, she will then proceed through the plea formalities, which I discussed in the last post. Once the judge is satisfied that you are competent and that your plea is knowing and voluntary, she will sign the judgment, the document that “proves” you’ve been convicted or pled guilty.

The Texas Code of Criminal Procedure article 42.01, Section 4, directed the Office of Court Administration to standardize judgment forms. So these days all felony judgments look similar and organize information about the case and defendant in the same way.

The judgment also forms the heart of the “pen packet” that will follow you to TDCJ if you are having to serve some prison time. TDCJ staff use the pen packet to confirm the conviction, calculate or record your time credit, and start the classification process.

Given all these formalities, can you ever successfully claim that your plea was involuntary? I’ll follow up with a post focused on that issue.

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