Opinion
No. 13-99-375-CR.
Filed August 31, 2000.
Appeal from the 370th District Court of Hidalgo County, Texas.
Before Chief Justice Seerden and Justices Dorsey and Yañez
CONCURRING OPINION
I concur with the result of the majority, but write separately because I believe a criminal defense lawyer should inform his client that a plea bargain offered without a stated time for acceptance may be withdrawn at any time.
The court of criminal appeals has held that failing altogether to inform a client of a plea offer constituted ineffective assistance of counsel, see Wilson, 724 S.W.2d at 74; and the majority states in dicta that, if the offer in this case had included a caveat that it had to be accepted by a certain date, trial counsel would have fallen short of his duty by not communicating the deadline. I believe that, where no deadline is included with the offer, reasonably effective assistance of counsel must include warning the client that the State has not agreed to hold the offer open for any specified period, and that the offer can be withdrawn at any time. Many clients will not be familiar with legal proceedings, and, like the appellant in this case, may not anticipate that the State might withdraw its offer. The criminal defendant depends on the knowledge and experience of his counsel to protect him against these kinds of pitfalls. I would hold that, by failing to warn appellant that the State's offer might be withdrawn, trial counsel's performance fell below the standard of reasonableness under prevailing professional norms. See Strickland, 466 U.S. at 688.
Nevertheless, due to the nature of the State's offer in this case, I would hold that appellant has failed to show a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. See id. at 694. The agreement offered in this case was (1) appellant would plead guilty to aggravated sexual assault without a punishment recommendation from the State, and (2) the trial judge would consider deferred adjudication, but if the judge believed deferred adjudication was inappropriate, the judge would let appellant withdraw his plea.
It is not apparent how accepting this plea "bargain" would have provided any meaningful benefit to appellant. The State was to make no punishment recommendation. The trial judge would have been authorized to consider deferred adjudication with or without this agreement. See Tex. Code Crim. Proc. Ann. art. 42.12 § 5(d) (Vernon Supp. 2000). Because the trial judge chose not to grant appellant deferred adjudication, I conclude that the trial judge believed deferred adjudication was inappropriate. Assuming the trial judge would have agreed to allow appellant to withdraw his plea, appellant would have been put back in the precise position he found himself after the offer was withdrawn — deciding whether to enter an open plea of guilty, or to plead not guilty and force the case to trial. The record does not indicate a reasonable probability that, had appellant been able to accept this plea offer before it was withdrawn, the result of the proceeding would have been any different.
Dissenting Opinion delivered and filed this the 31st day of August, 2000.