Friday, December 11, 2009

Post-Trial Motions are NOT Self-Proving

For any new defense attorneys who may be reading this post, the following case is a must read.

Rouse v. State is a case about a defense attorney who improperly advised his client that if he did not like the sentence imposed by the judge during the sentencing phase of his guilty plea, he could simply withdraw his plea. The client was apparently led to believe that if he pled guilty (without a plea bargain), he would receive probation only. When the judge informed Appellant that he believed 10 years was an appropriate punishment (oddly, the judge seemed to be offering some kind of sua sponte plea bargain), Appellant tried to withdraw his plea, but the judge would not allow it. After Appellant was sentenced to 12 years TDC, his defense attorney (waiting until the last day to file his notice of appeal or motion for a new trial) faxed an unsworn document entitled "Motion for Appeal" to the court coordinator alleging that the defendant's plea should be withdrawn because of the incorrect legal advice that was provided to him.

On direct appeal, the 3rd District Court of Appeals relied on the unsworn affidavit to determine that Appellant's guilty plea was involuntary (Read lower court opinion here). On State's petition for discretionary review the Texas Court of Criminal Appeals considered whether the lower court erred by relying on unsworn allegations made by trial counsel in a document that was faxed to the court coordinator (when no fact-finder has evaluated the statement) to determine that a guilty plea was involuntary.  Relying on precedent from Lamb v. State, 680 S.W.2d 11 (Tex.Cr.App. 1984), the CCA reversed the lower court decision, stating:
"We decide that the court of appeals erred to rely on the allegations in the 'Motion for Appeal' because post-trial motions such as these are not self-proving and any allegations made in support of them by way of affidavit or otherwise must be offered into evidence at a hearing. This rule is based, in part, on permitting the non-moving party an opportunity to respond to these allegations before a conviction is reversed on their basis."
The CCA also briefly considered whether and to what extent any "plea-bargaining" by the trial court concerning appellant's punishment could have influenced appellant's decision to enter an "open" plea of guilty. The CCA dismissed this contention as being without merit because the appellant's plea was entered the day before the judge's discussion with appellant regarding sentencing.