Despite the holding in Gutierrez, 108 S.W.3d 304, my judge routinely permits a defendant to withdraw a plea of "true" to the allegations in a motion to revoke or motion to adjudicate when he does not agree to the disposition of such motion as we recommend. He normally then resets the matter for further hearing. Is the plea of true given at the first hearing still admissible? Much like art. 26.13, Rule 410 specifically refers (only) to a plea of guilty. Obviously, if the prior plea is admissible, then the "withdrawal" of the plea does not accomplish much (but that is exactly the result I would like in the case I have in mind).

The defendant made the plea with the understanding, apparently, that he could withdraw it if the judge did not accept it. Fundamental fairness would suggest that using the plea against him at subsequent proceedings would be wrong.

If you want to be able to use such a plea, then you should include in your plea papers an admonishment that the plea, if rejected by the judge, could still be used as evidence by the state at a subsequent proceeding. But, frankly, I would not think any judge or jury would look kindly upon such evidence.

Of course, if the defendant subsequently testifies and contradicts his plea, perhaps the plea could be used for impeachment.

John, perhaps based on the prior practice of the judge, the defendant made his plea with such understanding. But, the court did specifically admonish him beforehand that the state's recommendation would not be binding. Here the defendant pleaded that on two occasions he had failed to abstain from the use of illegal substances "in that analysis of his urine samples" had indicated the presence of cocaine in his body. That will be a difficult fact for the state to prove (considering the final analysis was performed by a non-accredited lab in Arizona). Now I guess we can agree that it is only "right" that the State be required to make that proof, but I frankly think the logical conclusion is the plea was voluntary (though conditioned on an assumption that had no basis in fact), and should be just as available as if he had made the same admission to his supervising officer immediately after the test. Of course, I agree with you that the court need not give the evidence any weight (even if it is admissible), so that as a practical matter my approach may have no real utility (especially since defense counsel will be unhappy). But my real question is whether, legally, the prior plea would fall within Rule 410.

I guess my concern is for the development of good law. Time and again, legislators are presented situations in which prosecutors followed some legal requirement correctly but created a perceived wrong (Tulia). Then, legislators respond by making a new law that restricts the prosecutor's discretion because it wasn't wisely exercised in a particular case.

So, while we could legally get a conviction in an undercover drug case through the testimony of an undercover officer alone, the question really should be, "Is that a wise approach?" Why not design the application of a rule so that it maximizes the opportunity for a just result and minimizes the opportunity for a mistake or misconduct?

In your example, I am concerned that we are encouraging prosecutors to consider it sporting to pursue the use of a defendant's plea of true merely because there may not be a clear rule prohibiting it. But, obviously someone considered it inappropriate if the plea was guilty. Other than the technical difference in the plea, why would it be "right" to have a different outcome for a plea of true?

Incidentally, Guitierrez doesn't prevent a judge from permitting a defendant from withdrawing a plea of true. The case only points out that the Legislature has not given a defendant the "right" to withdraw the plea if the judge fails to follow the plea agreement (same is true in a misdemeanor plea of guilty). All judges retain the discretion to permit the defendant to withdraw a plea (of guilty or true) at any point before accepting the agreement.

Of course, left to be litigated in Guitierrez is whether the defense lawyer provided ineffective assistance of counsel by representing to the defendant that he did have a right to withdraw a plea of true. That is why the plea paperwork should admonish the defendant he has no right to withdraw a plea of true.

If it is worth the bitter struggle:

If your judge wishes to treat the plea of "true" as a preliminary hearing, just prove your case as if the plea was "not true". Call your witnesses. If the judge lets the defendant withdraw a plea of true, then at the plea of not true ask the judge to take judicial notice of the prior testimony. If the judge makes it clear that he/she wants to hear it twice, you'll have to live with it. But I would think your judge would rethink things if you just disregarded pleas of true and tried your cases as if all pleas were pleas of not true. In a hearing on a plea of true, I think the the defense would be less aggressive and the cross examination shorter too ... Makes them look like idiots to plead true and then get after your witnesses and evidence ... I doubt you'd draw too many objections even to raw hearsay and ... unobjected to hearsay is competent evidence.

If your judge questions your desire to put on your evidence, tell him/her that you want him/her to have the facts of the case when deciding whether or not to let the defendant withdraw the plea of true if that becomes an issue.

Perhaps you could work out a compromise, if the judge is inclined to grant a motion to withdraw the plea, then you get to put on your witnesses in support of the plea of "true". If the judge decides the result was not right, then he/she grants the withdrawal of the plea of true, judicially notes the testimony at the new hearing and does whatever. If the judge believes the result was right, deny the motion to withdraw the plea of true and gain any appellate advantages gained thereby.

Worth thinking about. Good luck.

John, you are correct that someone thought at some point that it was the "right" thing to do to give the defendant the right to withdraw his guilty plea if the parties' bargain was not approved and followed by the court. But, it appears such right is strictly based on statute. Holland, 112 S.W.3d at 256 ("a violation of article 26.13 is nonconstitutional error"). Since the court gives an admonishment regarding a plea of true exactly the opposite of that given with respect to a plea of guilty, and the State conforms to the bargain by making its recommendation as to the disposition of the motion, I guess I must question why the court should routinely permit withdrawal of the plea. Frankly, what gives it any discretion to do so, since the defendant went into the proceeding knowing there was the risk that the State's recommendation might not be accepted by the court? Yes, I know there is case law saying the plea of true must be voluntary, but is there a good reason to say the plea is always involuntary under these circumstances?

Stephen, your argument coincides with my conclusion that bargaining for pleas of true is really not a very good practice from the State's standpoint. Although I would never take the time to present evidence on the assumption the court might permit withdrawal of a true plea (since that will be known shortly after the true plea and while the witnesses presumably are still available), I think it is a perversion of the system for us to routinely bargain away a prior sentence merely for our convenience at revocation time. It has always seemed ironic to me that the court finds the best interests of society favor a reduced sentence for a person who failed to comply with the conditions of supervision. As I mentioned in a previous thread, the ultimate perversion occurs where we bargain for a lesser sentence when trying to revoke "shock" probation. Still, just as the Corpus court recognized, plea bargaining in the MTR/MTA context does serve a societal interest too. Oftentimes, the only real means of proving the violation of the order is through a true plea, and, of course, something must give to obtain the plea. But, I do not think the assumption by the Defendant that he is entitled to more than he is promised by the State (i.e., a binding recommendation), is necessarily a good reason to permit withdrawal of the plea, and I am searching for the legal basis for such argument (other than the fact that the burden of proof is upon the State).

Some judges do not permit the State to plea bargain on a motion to adjudicate or revoke. The defendant can plead true or not true and leave it to the judge to decide the punishment. (This was Judge Ted Poe's policy in Harris County, for example, when I practiced in his court.)

I agree with Martin's remarks that it is odd that a defendant should be able to bargain for a sentence even less than he bargained for originally. But, if your judge is not inclined to have a consistent policy, we must do our best with plea bargaining.

I bet Attorney General Ashcroft could put a stop to this.