Ineffective Assistance of Counsel- Probation Revocation Hearings

It’s hard to second guess a defense lawyer’s work on a case, and it’s something we are asked to do often. When someone takes has a trial or enters an open plea to the court (pleading guilty with no agreed sentence) and gets a result they don’t want they usually pivot to see if their lawyer was defective. A bad result can frame the whole attorney-client experience in hindsight. It’s one reason that setting expectations and letting clients manage their own risks is so important. The risk of pleading guilty or not, having a trial or not, is always the clients’ risk to take or not. As criminal defense lawyers, we can advise clients on what their options are, but we never choose for them.

What about pleading true to a probation revocation? 

Pleading true to allegations in a motion to revoke without a plea bargain leaves a defendant open any sentence in the range of punishment if on deferred, or up the maximum number of years in the sentence if the plea is straight probation (straight probation means you are convicted).

Today, the Dallas Court of Appeals ruled on a case in which the Defendant plead true on an open plea (open plea =without a plea offer), and was sentenced to 20 years TDC. The Defendant appealed and wanted to allege that his lawyer was ineffective. Let’s take a look at the case, 05-19-01282, Jones vs Texas. It’s an appeal from the 283rd District Court in Dallas.

What happened?

Jones was on probation for possession with intent to manufacture or deliver heroin in an amount of more than four grams but less than 200 grams. Jones accepted a plea offer for  10 years deferred adjudication probation. Deferred adjudication means you plead guilty but are not convicted. It also means if you are revoked you are open to the entire range of punishment. Jones was revoked twice, the first time he got to stay on probation (that’s not unusual in Dallas County), the second time he pleads true to the allegation in the motion to revoke, and went open to the judge for sentencing. The judge could then choose any sentence within the range of punishment. After the hearing, the judge sentenced Jones to 20 years in prison. Jones filed an appeal claiming his lawyer was ineffective for not calling any witnesses to the probation revocation hearing.

Ineffective Assitance of Counsel- Not Calling Witnesses

Jones believed that his defense lawyer was ineffective by not calling any defense witnesses during the probation revocation hearing. What’s the law on not calling witnesses?

The failure to call a witness does not constitute ineffective assistance of counsel without showing both that the witness was available to testify, and that witness’s testimony would have benefitted defendant. See Wilkerson v. State, 726 S.W.2d 542, 550–51 (Tex. Crim. App. 1986).

So not calling witnesses won’t be ineffective assistance unless you can show that the witnesses could have testified (are available) and that the testimony would have helped the defendant. Jones had multiple family members submit affidavits stated they would have testified that they love Jones and would support him upon release, but that no one asked them to testify.

Not Calling Witnesses As A Trial Strategy

Jones’ lawyer also submitted an affidavit stating that he did not think these witnesses would have helped, since the defendant was released from jail to go to a family funeral, and later absconded (didn’t return to jail). Jones’ lawyer said the issue at the hearing was not if Jones’ family loved him and supported him, but that Jones was not complying with the conditions of probation. Finally, he said the court needed to hear from the Defendant about how sorry he was for failing to meet the terms of probation, and not from the Defendant’s family.

This affidavit was important because it talks about the lawyer’s hearing strategy. If you are claiming ineffective assistance of counsel, then you should know that on appeal the lawyer’s trial strategy will be relevant as to why a lawyer did, or did not do something. In this case, the lawyer’s strategy did not include calling family members to say they’d loved and supported the Defendant. In that case not calling the family members was intentional, and the appellate courts won’t second guess a defense lawyer’s hearing strategy.

Here is some case law on trial strategy-

Moreover, because counsel’s decision to call witnesses is a strategic choice involving weighing risks and benefits of testimony, courts should evaluate an attorney’s explanations before concluding counsel was ineffective. See Prine v. State, 537 S.W.3d 113, 118 (Tex. Crim. App. 2017).





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