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Criminal Law No. 358-02, 6/18/2003. Click here for the full text of this decision FACTS: In 1991, the appellant pled guilty to attempted sexual assault and was sentenced to 10 years’ imprisonment and a $750 fine, probated for 10 years. In January 2000, the state moved to revoke his probation. The appellant agreed to enter a plea of true in return for the state’s punishment recommendation of three years’ imprisonment. The trial court revoked the probation, but did not accept the state’s recommendation on punishment. Instead, the court imposed the original 10-year sentence. The appellant appealed, claiming, in one of several points of error, ineffective assistance of counsel in his attorney’s failure to request withdrawal of his plea of true after the trial court rejected the agreed-upon punishment recommendation. The 13th Court of Appeals sustained that point, reversed the judgment, and remanded the cause to the trial court for further proceedings. HOLDING: Reversed and remanded. The court has consistently have held that Texas Code of Criminal Procedure article 26.13 does not apply to misdemeanor cases. The reason is statutory. Article 27.13 specifies that when a plea of guilty or nolo contendere is made in a felony case, “the proceedings shall be as provided in Article[] 26.13,” which contains the plea bargainer’s right to withdraw the plea. But when such a plea is made in a misdemeanor case, the corresponding statute (Article 27.14) does not contain, or refer to a statute that contains, such a right. This analysis applies to probation-revocation proceedings as well. The statutes governing probation do not make reference to article 26.13 or to any right of a plea-bargainer to withdraw a plea. Therefore, it follows that, in the context of revocation proceedings, the Legislature has not authorized binding plea agreements, has not required the court to inquire as to the existence of a plea agreement or admonish the defendant pursuant to 26.13, and has not provided for withdrawal of a plea after sentencing. The court is mindful that the benefits of plea-bargaining are not so great in probation-revocation proceedings. The principal justification for plea-bargaining is the conservation of scarce judicial resources, and the judicial system relies heavily on avoidance of trials by jury in felony cases. But a probation-revocation proceeding requires fewer judicial resources than a trial by jury; there is none of the time and expense that attends a jury trial on guilt or punishment, the fact issues are usually less complex than those in a criminal trial, and the burden of proof is lower. Such considerations may be one reason why the Legislature has not bestowed on probationers a right to withdraw a plea of true. This does not mean that, in probation-revocation proceedings, plea-bargaining and the resulting punishment recommendations are worthless. A recommendation by the state gives the trial judge some indication of what justice requires based on the specific circumstances of a case, and it may serve to persuade the judge that a particular sentence is appropriate. Although the law requires the state to make the agreed-upon recommendation to the court, it does not give a probationer the right to withdraw a plea, and the court of appeals erred in holding otherwise. Consequently, the court of appeals’ further holding that the appellant received ineffective assistance of counsel when his trial attorney “failed on the most minimal level to either object or inquire as to the judge’s refusal to accept the state’s recommendation and failed to attempt to withdraw appellant’s plea” was incorrect. Because the appellant had no right to withdraw his plea of true, his attorney was under no obligation to make the request. The court sees no deficient performance in the failure to assert a right that the law does not afford. There being no deficient performance, the court does not address whether there was prejudice to the defense. OPINION: Womack, J.; Keller, P.J., Price, Johnson, Keasler, Hervey, Holcomb and Cochran, JJ., join. DISSENT: Meyers, J. “The majority, while acknowledging the import of the Supreme Court’s holding in Santobello, fails to recognize the fundamental due process basis for that opinion, as it bears on the case before us today. By urging the rejection of the “other policy reasons” for enforcing plea bargain agreements, the majority completely ignores the basic premise of the Santobello HOLDINGthat the waiver of fundamental rights inherent in the plea bargaining process necessarily implicates due process concerns. The premise is equally applicable in a situation like this one, when an individual waives his or her right to a hearing and pleads true during a motion to revoke community supervision. “The Court of Appeals here recognized the due process implications of such a waiver, and held that in light of those implications, the right to withdraw a plea of true after the trial court rejects the plea agreement should be applied in this situation just as it is, by statute, in the guilt/innocence context. I agree. “Furthermore, the majority asserts that because appellant did not have a statutory right to withdraw his plea of true, his attorney could not have been ineffective for failing to request such a withdrawal. However, the existence or absence of a statutory right is not determinative of the question of whether counsel provided effective representation. Rather, the question is whether counsel’s performance fell below an objective standard of reasonableness. Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). If the trial court had the power to grant the request, regardless of whether appellant had a right to the relief sought, counsel may have been deficient in failing to request such relief.”

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