The Texas Guilty Plea, Part 3: Proving your Plea was Involuntary

One of the most common grounds raised in Texas 11.07 writ of habeas corpus applications is the involuntary plea. Here’s the basics of how such grounds work and what you or your loved one will have to prove.

First, you must overcome the presumption that the plea was voluntary.

In my prior post I walked through the formalities of the plea process. These formalities include your written and oral statement (if the plea was recorded) that you understand the charges, that you’ve been fully and adequately advised by your attorney, and that your plea is knowing and voluntary. This paperwork creates a presumption of voluntariness that you must overcome in your writ application with affirmative evidence. A sworn statement by the applicant that his attorney misled him or misadvised him will never be enough evidence to overturn a guilty plea.

Here’s the type of claims and evidence you’ll need to prevail.

  1. Ineffective Assistance of Counsel – bad advice

The most common way to attack your guilty plea is by claiming your attorney gave bad advice. Examples poor legal advice that you credibly can allege in your 11.07 writ and take to the trial court for supportive findings are bad advise on parole eligibility, bad advice on immigration consequences, and bad advice on shock probation eligibility.

You have to show (1) that you got bad advice and (2) if you’d had the correct advise, you would have rejected the plea and gone to trial.

Important fact: you DO NOT have to prove you would have won at trial, or that you even had a viable defensive strategy. You just have to make a plausible case that given a proper understanding of the law you would have exercised your right to a trial, regardless of the outcome.

Of course, it doesn’t hurt to have a good defensive theory that could have been used at trial — I always try to articulate one in my memorandums of law.

I’ve won writs and overturned guilty pleas alleging single grounds for relief on either bad parole or bad immigration advice by plea counsel. But each case has its own specific facts and there’s no such thing as a 100% winnable issue. The details matter, so talk to a good post-conviction attorney about how to craft your argument.

As for proving the bad advice, you’ll either need a concession from the plea attorney, correspondence that corroborates that you were misadvised, or something in the record or the lawyer’s file that independently verifies your claim.

As I always tell clients, if your “proof” just boils down to an affidavit swearing match between you and your plea attorney . . . you. will. lose.

2. Ineffective Assistance of Counsel – Failure to Investigate

You can also allege that your plea attorney’s failure to adequately investigate the case led to your involuntary plea. Your burden of proof is: articulate and show the court the specific pieces of evidence or witnesses that, if produced during the hearing or trial, would have been material to countering an element of the offense or to mitigation.

Sometimes a failure-to-investigate claim will be framed as bad advice. For example, if a lawyer representing a client accused of stealing loaned money fails to research the law and explain that the prosecutor must prove the defendant had the intent to not repay the loan at the time he borrowed it, then that client’s plea may be involuntary. If the client had known the elements of the offense, he might have wanted to try the case instead.

The failure-to-investigate claims usually involve key pieces of evidence or witnesses that the defense attorney didn’t look into. The argument goes like this: if the attorney had done his job and fully investigated the evidence, then the client would have rejected the plea offer and gone to trial because he would have been confident that his attorney could effectively represent him in front of the jury. Or the client, fully informed of the evidence he could introduce at trial, would have adjusted his risk calculation and elected for trial instead of plea.

As always, the best way to win this type of claim is to be specific. Get an affidavit from the witness who should have been contacted and make sure that witness states that he or she was available to testify and would have provided specific, materially favorable testimony.

Likewise, documentary evidence such as financial records must be produced and their materiality explained.

3. Involuntary Plea – Coercion, Judicial Misconduct, and Prosecutorial Misconduct

The Texas Court of Criminal Appeals has issued thousands of  11.07 “denied” white cards to applicants alleging that their plea was involuntary due to coercion, prosecutorial misconduct, or judicial misconduct. Why? Because the applicants fail to provide the courts proof of their allegations.

The Due Process clause provides defendants protection from coercive actions that lead to involuntary pleas. And judges are not allowed to improperly influence a defendant to take a plea. In fact, judges are ethically discouraged from having any involvement in the plea process.

But allegations of coercion and improper conduct are very hard to prove. Bad actors don’t admit they are bad. And lawyers and judges are usually smart enough to cover their tracks when they exert unfair pressure on a defendant to induce an involuntary plea.

In my experience, the best way to prove improper inducement claims is through third-party observers (non relatives of the defendant), who can verify improper actions by officers of the court. Also, if the improper inducement occurs by means of unfair financial pressure or misappropriation of funds (e.g. a lawyer who pays himself rather than facilitating a restitution payment), there should be a verifiable paper trial.

If you have a loved one who thinks his or her plea was involuntary, please tread carefully and fully discuss the potential claims with a good post conviction attorney with a successful track record. Although these claims are hard to prove, don’t lose heart! A proper focus and careful investigation may lead to evidence that gives your loved one a fighting chance on an 11.07 writ.