If the court accepts a plea of guilty or nolo and finds the evidence substantiates guilt and defers adjudication of guilt and places the defendant on community supervision and the defendant fails to move for adjudication of guilt within 30 days, it is clear he has no right to a new trial, Donovan, 68 S.W.3d at 633. He also will gain no relief from an allegation of an involuntary plea upon an appeal from a subsequent adjudication of guilt. Daniels, 30 S.W.3d 407; Williams, 44 S.W.3d 145, rev'd on another ground, 58 S.W.3d 137.

The CCA suggests, however, that the involuntariness of the plea could later be raised in an application for writ of habeas corpus under arts. 11.08 or 11.09, C.C.P. 68 S.W.3d at 638 fn. 20 and 21. Now I have a defendant trying to challenge the voluntariness of her 1992 plea to theft. She successfully discharged her probation in 1996. She alleges she is still suffering adverse consequences from the original proceeding. Does art. 11.08 apply? It speaks to the ability of a person "confined" to apply for release. "Confined" is defined in art. 11.21, which even in describing constructive confinement talks about "exercising a control over the person" and detaining "him within certain limits". Notably, 11.08 does not include persons who are merely "restrained" as defined in art. 11.22. Possibly a person on community supervision is in "constructive confinement", but after discharge, are they still "confined"? But see art. 11.23. Does an involuntary plea years before render the subsequent restraint (assuming that is still occurring) "without lawful right" or mean that it is "exercise in a manner or degree not sanctioned by law"? I am arguing among other things that laches bars any relief. Anyone else dealt with this type problem? The habeas statutes were enacted long before deferred adjudication even existed. Is there a gap in coverage? Must the state supply some means for challenging a plea that never resulted in a conviction?

[This message was edited by Martin Peterson on 07-02-02 at .]

Having done a little more research, I find there is separate jurisdiction to issue the writ or a right to relief under the constitution. According to the court, all that is needed to invoke the constitutional jurisdiction is "that the applicant be restrained under the definintion of Art. 11.22" Rodriguez, 769 S.W.2d at 558. Still, once a probationer has been discharged, is she still under any form of restraint or "control"? Surely someone has already dealt with this issue or at least has some thoughts on how to handle the claim. The supposed restraint alleged in my case is threatened adverse action by the INS (the defendant is an alien).

Martin, I've not looked at it lately, but I think there is case law that says a defendant is "restrained" for the purposes of habeas even after discharge due to the adverse consequences of a conviction because the fact of the conviction may still be used against the defendant in limited instances. Look at Tatum v. State, 846 S.W.2d 324, 327 (Tex. Crim. App. 1993); Ex parte Reiner, 734 S.W.2d 349, 353-54 (Tex. Crim. App. 1987); Ex parte Ormsby. 676 S.W.2d 130, 132 (Tex. Crim. App. 1984). Let me know what you think.

I think she is making the wrong argument. She's not "restrained" by INS, she's "restrained" by us. She has a tough row to hoe in order to show an involuntary plea--the fact that Congress and INS changed the way they do things does not retroactively make the plea involuntary because deportation is a collateral consequence.

John, I have pretty well accepted the idea that the mere fact a person is no longer suffering any direct effects of the prescribed punishment for an offense, he may nevertheless pursue habeas relief from a void conviction. Of course, in my case there never was a conviction. Also, in Tatum in footnote 2 the court says once the conviction is set aside and charging instrument dismissed "the question whether a guilty plea was involuntary" "might" be rendered "moot for most purposes".

Certainly I hope I can convince the judge on the merits: that any failure to fully warn the defendant about immigration consequences was "nonconstitutional error" as held in Torres, 59 S.W.3d at 367 since "neither the federal nor state constitution require that a defendant be informed of possible deportation" Tovar, 901 S.W.2d at 486 and "mere irregularities in the proceedings" do not qualify for habeas relief (especially years after the fact). McCain, 67 S.W.3d at 310. But despite the fact we are talking about a collateral consequence (Vasquez, 889 S.W.2d 588) in my case, I was hoping to find a way to say the merits need not be addressed. Initially I hoped to convince the judge the petition itself manifested that the applicant was entitled to no relief whatever. See art. 11.15, C.C.P.

I have a real problem with saying the convicting court can come back at almost any time and even consider setting aside a guilty plea where the most the applicant can say is "I think I'm still being affected in some way by what happened even though I am no longer confined or restrained by virtue of the order" (just intervening Congressional action and third parties). Plus, once we start opening this door, I think a lot of people will start trying to get through it even if they stand no chance of success on the other side.

We've seen alot of these claims, but for the most part our judges have held the line with regard to the factual support for voluntariness. We had one misdemeanor dope case, dismissed under Art. 42.12, Sec. 20, where we initially argued that the court lacked jurisdiction and/or authority, but we dropped the argument after coming across the cases cited above. Our trial prosecutors have a form response they file explaining why the court's should just deny the so-called "immigration writ."

John, I am drawing the conclusion that you think an 11.08 writ is available to challenge a deferred adjudication plea even after release from supervision, i.e. there is jurisdiction. If so, then in my opinion there will never be a "perfect plea", only an unchallenged one.

A perfect plea is not one that is never challenged. It is a plea that can withstand any challenge.

A new edition of The Perfect Plea is coming soon. You will find that there is an entire chapter called "The Interrupted Plea." And the most litigation over the past few years has been over the authority of a defendant to challenge a guilty plea.

Fortunately, most of the new cases indicate that such pleas, even when challenged through writs, are dismissed or denied with little discussion.

John Bradley
District Attorney
Williamson County, Texas

Martin, all I can really say is that I once looked at an argument similar to yours and decided that, in my case, it was not tenable. We instead produced evidence refuting their claim of ineffective assistance. Unfortunately, in that case the judge granted relief anyway, presumably because he thought it was unfair to deport the defendant to Iran simply because he picked up three different misdemeanor marijuana cases as a young man, especially when he lived out his probation and the case was dismissed. You and I would certainly (and respectfully) disagree, no?

The real problem isn't the Texas law on guilty pleas and habeas, but the perception (correct or incorrect) that INS is overly draconian in its implementation of the 1996 immigration reforms. When you combine that with deportation to a place with a really bad reputation (true or not), i.e. Iran, you'll find that people want to "do something," whether or not they possess the jurisdiction or authority to do so. Maybe 9/11 will push those perceptions aside somewhat.

I think part of our success is also perception, i.e. that the judges believe they will be DROWNED in these claims if they actually grant one. And there is no way to keep it secret, 'cause once INS cuts the guy loose his community will find out how.

Looks like Lazo is arguing about the same thing in Houston. In my case a Dutch immigrant has three native born children and has been in the U.S. for 17 years. I feel it would be wrong to deport her (and actually I will be surprised if that happens), but I also feel I have no choice but to challenge her writ because, as you say, the floodgates must be opened to all if one succeeds. Her situation apparently came to the attention of the Feds when she applied for naturalization. The judge gave an admonition about deportation-- it's just that the law changed regarding deferred adjudications in 1996. The admonition, however, implied that without a finding of guilt there would be no consequence (which I guess was the law in 1992). My argument has been that we don't create special habeas corpus relief just for aliens, and that whether the legislature considers deportation significant or not (as evidenced by its inclusion in 26.13), the courts are agreed that knowledge of collateral consequences is irrelevant to determining the voluntariness of a plea of guilty. Am I not also correct that the effect of a granting of the writ is merely to return the case to its pre-plea status? That is, the case stands subject to re-trial as if jeopardy never attached. Does the defendant get to exclude her judicial confession upon re-trial? What about her testimony essentially again confessing guilt during the habeas hearing?

Yep, she just gets to replead and go to trial if that is her choice. Retrials are always a problem, though.

I think the only argument against the judicial confession is that it might be a statement made during plea negotiations. I can't think of anything to argue against admission of her habeas testimony.

Don't waive a jury on retrial, I guess, and see how they get out of it now.

For anyone interested, the judge's decision reads as follows: "the Court finds that the Applicant was not adequately and legally counseled and advised concering the effect of her immigration status on the plea of guilty to the charge of theft and that the Court failed to properly and correctly admonish Applicant prior to her plea, and the Court finds that her plea was not freely, knowingly, intelligently, and/or voluntarily given ... and the deferred adjudication entered by the Court on December 3, 1992 ... is hereby set aside and said Order and the plea of guilty are pronounced null and void for all purposes". Considering this outcome is little different from the defendant's status after the 1996 order discharging her from community supervision and for the equitable reasons stated above, the State will not be appealing this decision, nor will the case be scheduled for re-trial.