Criminal defendants quickly discover that the criminal justice process in Texas is nothing like the movies. They realize that when they step into court they’re just another face in a crowd of other defendants. They feel like the prosecutor sees them as an offense report, not a person, and that the judge’s primary interest seems to be just getting the case finished.
This feeling isn’t entirely accurate, but that doesn’t make the experience any less disconcerting.
One of the consequences of the experience of a chaotic, impersonal, and crowded court room is that a guilty plea can feel rushed — what if you realize it was a mistake and that you’d rather fight the charges?
Is it possible to withdraw a plea?
The answer is yes, but it’s all a matter of timing. And timing depends on what legal situation you are in — a negotiated plea, a jury trial, or a sentencing hearing. Let’s break it down.
If you plead guilty to one allegation but not guilty on a second allegation, you can switch your first plea. But the clock is ticking. You can only change your plea to the first case before the jury “retires to deliberation.” Mendez v. State, 138 S.W.3d 334, 336 (Tex. Crim. App. 2004). That means it’s too late to change your plea once the State finishes its closing argument and the jury disappears into the deliberation room.
If you have a change of heart and want to fight all your charges, tell your lawyer while the jury is still in sight!
You have a right to withdraw your guilty plea at any time prior to the pronouncement of sentence. Jackson v. State, 590 S.W.2d 514, 515 (Tex. Crim. App. 1979).
That means if you sign the paperwork and are admonished about your waiver of rights you can still withdraw your plea. But if the Court accepts the plea, says out loud what the sentence is, and signs the judgment, you’re locked in.
As a practical matter, you have a decent chance of withdrawing from a negotiated plea if you change your mind while the docket is still on-going. As long as the judge is on the bench (and not in a bad mood) and there are still warm bodies in the courtroom, you could probably get your lawyer to apologetically tell the judge the client has had a change of heart and wants a trial.
If you plead “open” to the court your case will be reset for a sentencing hearing. That means you didn’t enter into a plea bargain with the State but still pled guilty. The goal is to go to the judge for punishment and try to get a better deal than the State offered. Typically you’ll be reset 1 to 3 months to give the probation department time to create a pre-sentencing investigation report. During that time you might have second thoughts about pleading guilty. It’s extremely difficult to undue your plea, however.
Once a judge “takes a plea under advisement” the court has full discretion on whether it will allow a defendant to withdraw his plea prior to the PSI or sentencing hearing. Jagaroo v. State, 180 S.W.3d 793, 802 (Tex. App. — Houston [14th Dist.] 2005 pet. ref’d). “Judicial discretion” sounds promising, but it’s not. A judge will want to see a very strong basis for withdrawing an open plea, such as ineffective assistance of counsel or inducement. These are hard to prove. With an open plea you’ve also already set the bureaucratic wheels in motion. Nobody wants to put you back on a trial docket.
My instinct is that absent strong proof of attorney incompetence, an open plea will not be withdrawn unless the prosecutor agrees to it. And even the judge may say no.
So, keep all this mind when stepping into court to do a plea. Be sure you’ve been fully advised by counsel because your probably stuck with it.