One of the great advantages of this website is the way it can deliver current information immediately to prosecutors around the state. To keep the 2004 edition of The Perfect Plea current and correct, I will be posting occasional updates here. So, bookmark this thread and check in every now and then to see if anything has changed.

And if you have a question about anything in the book, post it and I will try and get back quickly.

John Bradley
District Attorney
Williamson County, Texas

The CCA has decided that Texas law does not require a felony defendant to enter a plea of guilty through his own mouth. Under article 27.13 and Shields v. State, 608 SW2d 924, that appeared to be the case, and so I stated on page 17, n. 95. But, in Costilla v. State, No. 1901-02 (Tex. Crim. App. 2004), the CCA held the judge acted correctly when he took the plea of guilty through the attorney (who was also acting as an interpreter) in the presence of the defendant. So, please note the correction.

The better practice, however, would be for the judge to ask the defendant to state orally his plea of guilty. That avoids any confusion or subsequent litigation.

I also have to wonder whether the attorney was licensed to act as a translator. If not, was he committing a crime? See Tex. Gov. Code:

Sec. 57.049. PROHIBITED ACTS. A person may not advertise, represent to be, or act as a licensed court interpreter unless the person holds an appropriate license under this subchapter.

Violation is a Class A misdemeanor.

John Bradley
District Attorney
Williamson County, Texas

[This message was edited by John Bradley on 10-12-04 at .]

[This message was edited by John Bradley on 10-12-04 at .]

I am now working on an official update of The Perfect Plea, for delivery to all prosecutors late this summer. Any suggestions for new material or corrections should be posted within the next week or so.

The update will include any changes by the Legislature, new case law and new ideas for keeping that guilty plea from bouncing back to you. Also, there will be slight modifications to the forms, to keep up with all the new claims that get raised by defendants. Amazing how many things they think of while sitting in prison.

You should thank the TDCAA's publications guru Diane Beckham for seeking grant money through the CCA for the project. She just keeps getting it done.

John Bradley
District Attorney
Williamson County, Texas

I know this isn't your favorite topic, but maybe a little more on pretrial diversion programs, including highlighting the difference between ones approved/administered by the court and those done only through the prosecutor's office.

However, given how unique the programs seem to be for each office, this may not be doable.

-Joseph

So far, my coverage on that subject takes about a paragraph. There are only a couple of statutes and a few AG opinions. Everything else is pretty much the invention of individual offices.

What sort of details would be helpful, other than to say check with your local DA on whether there is a program and how it is run?

John Bradley
District Attorney
Williamson County, Texas

As for additional information, I might suggest adding a notation that these programs could still result in collateral consequences, such as under the Occupations Code (e.g. S 203.303 (a)(2)).

That, even upon successful completion of a PTD program, expunctions could still be opposed (e.g. DPS v. Katopodis, 886 S.W.2d 455 (Tex. Ct. App. Houston [1st Dist.] 2004), where DPS opposed the expunction, even though the State did not).

Finally, that, when the State involves the Courts in the process, it is governed by the usual Court processes, and, if it involves a loss of rights, such as an executed and filed Waiver of Speedy Trial, could possibly be considered under the Santobello plea bargain rationale.

I make these suggestions realizing they may be too specific or focused on other areas tangential to the scope of The Perfect Plea, but also realizing the lack of information and cases relating to the matter.

Hope this helps,

Jospeh T. Leonard

Thanks for all the great suggestions. Keep them coming.

John Bradley
District Attorney
Williamson County, Texas

The state�s withdrawal from a plea agreement, after it has been submitted to a judge and before the judge approves the agreement, is subject to unreviewable judicial discretion. There is no constitutional or statutory right on the part of the state to withdraw from a plea agreement once it has been submitted to the judge. In addition, the judge could undercut the plea agreement by imposing a punishment less than recommended by the state, and the state has no legal remedy. So long as the punishment is authorized by law, the state has no right to appeal the judge�s decision.

John Bradley
District Attorney
Williamson County, Texas

quote:

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Originally posted by John Bradley:
The state�s withdrawal from a plea agreement, after it has been submitted to a judge and before the judge approves the agreement, is subject to unreviewable judicial discretion. There is no constitutional or statutory right on the part of the state to withdraw from a plea agreement once it has been submitted to the judge. In addition, the judge could undercut the plea agreement by imposing a punishment less than recommended by the state, and the state has no legal remedy. So long as the punishment is authorized by law, the state has no right to appeal the judge�s decision.

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Not quite answering your questions, but some initial thoughts:

Following the plea = contract theory, wouldn't there be an arguement that the contract has not been properly executed, and, therefore, one of the harmed party's rights is recission of the contract (however, seeing something good, why wouldn't the defense atty. just plead open after that?) The State would then be forced to demand it's right to a jury trial or see the plea go the defendant's way.

Also, under the Santobello reasoning that plea bargian entitles a defendant to specific performance or withdrawl of a guilty plea due to his giving up sobstantive rights, could the State make the same arguement, since it has given up its right to a jury trial, as well?

In reality, I doubt these arguements would work. But, they could be fun to spout out.

As to the law, there is lots of caselaw implying and / or flat out stating that the court can downward deviate from a plea bargain and the State is stuck with it. However, I did find the following cases suggest/say that the State is also entitled to specific performance or withdrawl of the plea bargain (though these cases are specific to where the defendant has committed the breach):

Ricketts v. Adamson, 483 US 1 (1987; criticized by other courts, apparently); Neal v. State, 117 SW3d 301 (Texarkana 2003), rev'd on other grounds.

-Joseph Leonard

I think your discussion of contract theory is accurate. Trouble is that the law that provides a remedy to that breach is only directed at aiding the defendant. It does seem unfair that the State should have to risk a judicially-lowered punishment, but that would be true anyway, as a defendant gets to elect whether jury or judge does punishment.

The only time the State would truly be harmed is when the State has engaged in charge bargaining, lowering the punishment range with the expectation it would receive a particular punishment. In that circumstance, the State should have the ability to withdraw its reduced charge and proceed with the original higher charge if the judge departs downward. But I really think such an outcome would have to be authorized by statute to make it enforceable. Otherwise, under current law, there is nothing to appeal, as the sentence is not illegal.

Over time, a good prosecutor figures out when the judge is likely to depart downward and either (a) forces the judge be the one to downward depart, (b) makes that lower offer to begin with (as we do when we learn that juries don't agree with our assessment) (c) refuses to consent to waive a jury trial or (d) supports an opponent for the judge at the next election.

John Bradley
District Attorney
Williamson County, Texas

Can you plea bargain for a 12.44(a) reduction that is probated?

Can you do such a plea bargain for deferred? The language in 12.44 says convicted, which one of our judges believes precludes a 12.44(a) plea bargain for deferred. The 2004 edition does not cover this (that I could find).

It is reasonable to think that the "convicted" language limits the use of a deferred for 12.44(a). But, a prosecutor can do a deferred for a 12.44(b) straight to a misdemeanor, so why not for 12.44(a)?

I'm more of the school of thought in plea bargaining, at least as to probation, that the two parties can pretty much agree to anything, if approved by the judge, because case law says that it can't be undone by subsequent change in mind. Probation is not a sentence; so you can't have an illegal sentence to appeal.

On the other hand, if the judge doesn't want to do it, that's OK, too. I'm getting very flexible in my old age. Mentally, anyway.

John Bradley
District Attorney
Williamson County, Texas

OK, final edits have been sent to her Royal Highness, Most Queenly of All Editors, Diane Beckham. Should be seeing a new 2006 edition pretty soon.

John Bradley
District Attorney
Williamson County, Texas

TDCAA has officially published the 2006 edition of The Perfect Plea. Prosecutors throughout the state should be receiving their copy soon. Consider getting one for your judges.

John Bradley
District Attorney
Williamson County, Texas

John, on issue of what, if anything, can the prosecutor do if the court chooses not to follow the recommendation (and lower the punishment). Since 26.13(a)(2) says: "the court shall inform the defendant whether it will follow or reject such agreement in open court and before any finding on the plea", could not prosecutor immediately withdraw the offer (assuming the court truthfully reveals that it will not strictly follow the offer)? True enough, I guess the offer has been submitted, but no contract forms until acceptance and what the court is really doing is making a counter-offer; in other words, it has rejected the terms put before it.

Yes, the State could courageously withdraw its side of an offer when a judge announces he will not follow the agreement. But, if the judge also signals, as he/she usually does, that the sentence will be less than what is being recommmended by the prosecutor, what keeps a defendant from going forward and getting the lesser sentence?

Strictly speaking, I suppose the judge "should" permit the State to withdraw the jury waiver, etc., setting everyone back to ground zero. But, all of that depends on the judge backing up the state's request. In my experience, there is little to be gained from all that drama.

The bottom line is that the state has no legal way to enforce withdrawing from the plea without the judge's assistance. And, if the judge doesn't support the withdrawal, the state has no vehicle for forcing the issue. Can's appeal. A writ of mandamus wouldn't work because the judge's decision is a discretionary act, assuming you could even put all that paperwork together in time to stop the plea.

And, even assuming you got all that done, the defendant could still go to the judge for punishment on his own decision. So, there you go. Know your judge.

John Bradley
District Attorney
Williamson County, Texas