Clients who have been convicted of criminal offenses often believe that their attorney provided them with ineffective assistance of counsel, sometimes called IAC.

Ineffective assistance of counsel is available to clients in criminal appeals but not in most civil appeals.

The best way to approach an appeal if a client believes that their attorney was constitutionally ineffective is to file a motion for new trial. This must be done quickly and usually within thirty days of the criminal conviction. If the issue is not raised in a motion for new trial, then it is probably best not to raise the issue on direct appeal. The better approach is to address the other legal issues arising from the criminal conviction in the direct appeal. Once the brief is filed in the direct appeal then the investigation for the claim of claim of ineffective assistance of counsel should begin. While the writ may not be filed until after the direct appeal is finished, the writ investigation can and should go on during the direct appeal.

Ineffective assistance of counsel is often the only claim that can be used to fight the entry of a plea. If a criminal defendant admits responsibility to the criminal offense then the direct appeal is often waived. However, it is rare for the 11.07 writ to be waived. The writ permits the criminal defendant (or applicant) to claim that his or her attorney provided constitutionally inadequate representation.

The following is a discussion of the law relating to ineffective assistance of counsel claims arising from a plea in a criminal case.

1.     Law Governing Ineffective Assistance of Counsel in Criminal Appeals

A defendant in a criminal case has a Sixth Amendment right to the effective assistance of counsel.[1] Ineffective assistance of counsel claims are cognizable on habeas review. In determining whether to grant habeas relief on a claim of ineffective assistance of counsel, Texas courts apply the familiar Strickland standard.[2] In 1985, the Supreme Court of the United States, in Hill, applied a modified Strickland standard to claims of ineffective assistance of counsel in the context of a guilty plea.[3] The Court of Criminal Appeals has adopted this reasoning and thus also applies Strickland, as modified in Hill, to claims of ineffective assistance of counsel arising from a plea agreement.[4]

Strickland requires that an applicant establish two prongs by a preponderance of the evidence: (1) deficient performance of trial counsel; and, (2) harm resulting from that deficiency sufficient to undermine confidence in the outcome of the trial.[5] The proper standard of review for claims of ineffective assistance of counsel is whether, considering the totality of the representation, counsel’s performance was ineffective.[6]

As explained in Hill, and by the Court of Criminal Appeals, in the context of a guilty plea that arose from the ineffective assistance of counsel, “a defendant satisfies the prejudice requirement by showing that he would not have pleaded guilty and would have insisted on going to trial” but for the deficiency of the trial attorney.[7] The applicant, however, “need not show that his case would have received a more favorable disposition had he gone to trial.”[8] (Emphasis added.).

Under Strickland, an attorney’s performance is deficient when it falls “below an objective standard of reasonableness” under prevailing professional norms and according to the necessity of the case.[9] In assessing whether an attorney’s performance fell below an objective standard of reasonableness, the Court of Criminal Appeals will determine prevailing norms by considering the standards published by the American Bar Association and other similar sources.[10] However, the Court of Criminal Appeals recognized that such “publications . . . are only guides because no set of detailed rules can completely dictate how best to represent a criminal defendant.”[11]  An analysis of a counsel’s performance commences with a strong presumption that his actions fell within the wide range of reasonable professional assistance.[12

2.   Deficient Performance and Standards of Attorney Conduct

a.  The Court of Criminal Appeals, the Supreme Court of the United States, and the American Bar Association Impose a  Duty on Criminal Defense Attorneys to Investigate the Facts of                  a    Case Before Allowing the Case to be Adjudicated

In 2005, the Court of Criminal Appeals recognized that a criminal defense attorney must conduct an independent legal and factual investigation into the allegations against his client before allowing the case to be adjudicated and that this investigation must be sufficient to provide counsel with a firm command of the facts and law governing the case.[13]

In 2010, in the context of a claim of ineffective assistance of counsel due to a failure to investigate, the Court of Criminal Appeals cited to the Supreme Court of the United States and wrote, “When trial counsel does not conduct a complete investigation, his conduct is reasonable only to the extent that reasonable professional judgments support the limitations on [the] investigation.”[14]

Lastly, in 2013, the Court of Criminal Appeals explained that, “One necessary facet of professional assistance is the investigation of the facts and law applicable to a case. Counsel has a duty in every case to make a reasonable investigation or a reasonable decision that an investigation is unnecessary.”[15] (Emphasis added.).

The holdings from the Court of Criminal Appeals accord with the reasoning of the Supreme Court of the United States. In 2003, the Supreme Court held, in Wiggins, that “counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments.”[16] The Supreme Court then concluded that the trial counsel was constitutionally ineffective because his “incomplete investigation was the result of inattention, not reasoned strategic judgment.”[17]

The relevant standard in the American Bar Association’s Standards for Criminal Justice, entitled, “Duty to Investigate,” reads:

Defense counsel should conduct a prompt investigation of the circumstances of the case and explore all avenues leading to facts relevant to the merits of the case and the penalty in the event of conviction. The investigation should include efforts to secure information in the possession of the prosecution and law enforcement authorities. The duty to investigate exists regardless of the accused’s admissions or statements to defense counsel of facts constituting guilt or the accused’s stated desire to plead guilty. (Emphasis added.).[18]

b.   Representative Cases from the Court of Criminal Appeals on Strickland’s Deficiency Prong

In Ex parte Napper, the Court of Criminal Appeals overruled the trial court’s recommendation to deny habeas relief.[19] The Court of Criminal Appeals determined that the trial attorney was deficient for failing to obtain an expert to evaluate and to offer an opinion to the trial attorney concerning the reliability of the DNA evidence.[20] According to the Court, this decision was deficient because the trial attorney did not have the academic or professional background to analyze the validity or significance of the DNA evidence and no reasonable professional judgment could support the decision not to investigate the reliability of the DNA that was used against his client.[21]

In Ex parte Briggs, the Court of Criminal Appeals considered a trial attorney’s decision not to “fully investigate [the victim’s] medical records.”[22] The applicant, who had been convicted of causing the death of her infant child, alleged that the trial attorney “did not investigate any medical reports on [the death of her child].”[23] The trial attorney explained that the failure to investigate the medical records was because he had not received money to retain an expert.[24] The Court of Criminal Appeals held that “the failure by applicant’s attorney to [obtain and to review the medical records] . . . constituted deficient performance.”[25]

In 2011, in Ex parte Niswanger, the Court of Criminal Appeals found that a trial attorney’s decision not to investigate the underlying facts of a case was reasonable.[26] In Niswanger, the applicant entered a plea of guilty for impersonating a public servant.[27] In the applicant’s habeas application, he complained that his trial attorney was deficient for failing to investigate the underlying facts of the case.[28] The applicant’s trial counsel explained that he did not investigate the facts of the case further because it was a “policeman said, defendant said” case and thus there were no witnesses to speak with.[29] The Court concluded that “Applicant has not overcome the strong presumption that counsel’s conduct might be sound trial strategy and has, therefore, failed to [carry his burden] to [show] ineffective assistance of counsel.”[30

3.  Prejudice

a. General Rule

In the context of a guilty plea, a defendant satisfies the prejudice requirement by showing that but for counsel’s deficiency the defendant would not have pleaded guilty and instead would have insisted on going to trial.[31]

b.  Representative Cases from the Court of Criminal Appeals on Strickland Prejudice

In Ex parte Briggs, as described supra, the Court of Criminal Appeals found that counsel’s failure to investigate the relevant medical records constituted deficient performance and then the Court of Criminal Appeals considered Strickland’s prejudice prong.[32] The applicant alleged that her trial attorney “did not investigate any medical reports on my son. [The trial attorney] told me to plead guilty for probation. It was only after hiring [another attorney for the writ application] that the medical records were checked and showed [sic.] that I did not hurt my baby.”[33] The applicant’s trial attorney filed an affidavit and explained that he did not review the medical records because the applicant could not afford to retain an expert to testify to them.[34] In considering prejudice, the Court emphasized that “Although appellant has not proven that she is ‘unquestionably’ innocent, examination of [the] . . . medical records by themselves raise considerable doubt . . . that the [complaining witness’] death was the not result of homicide.”[35] The Court then concluded that the applicant had suffered prejudice due to the applicant’s trial attorney’s failure “to conduct a prompt investigation of the circumstances of the case and to explore all avenues likely to lead to facts relevant to the merits of the case” and then granted relief.[36]

Similarly, in Ex parte Imoudu, the Court of Criminal Appeals considered an application for a writ of habeas corpus from an applicant who had pleaded guilty but whose trial attorney failed to investigate whether the applicant was insane at the time of the offense and failed to inform the applicant of the availability of an insanity defense.[37] The Court considered affidavits from the applicant and the applicant’s father. The applicant testified in his affidavit that “had [his trial attorneys] hired a psychiatrist to evaluate me, the psychiatrist concluded that I was insane at the time of the offense, and the lawyers explained the insanity defense to me, I would have rejected the plea bargain, pled not guilty by reason of insanity, and gone to trial.”[38] The Court then wrote that, “We are not called upon here to decide if Applicant was insane at the time of the offence. Our concern is simply that, due to counsel’s failure to investigate Applicant’s medical history, Applicant was not able to make an educated decision regarding whether to proceed to trial and raise an insanity defense.”[39] The Court then concluded that the applicant had been prejudiced by the failure to investigate and granted the writ.[40]

4.  Conclusion

Writs are complicated and are very difficult to do when you do not have the freedom to go and to investigate the underlying offense.

[1] U.S. Const. amend. VI; see Strickland v. Washington, 466 U.S. 668 (1984).

[2] See Ex parte Martinez, 330 S.W.3d 891, 900 (Tex. Crim. App. 2011); Hernandez v. State, 726 S.W.2d 53, 55-56 (Tex. Crim. App. 1986).

[3] Hill v. Lockhart, 474 U.S. 52, 58 (1985).

[4] Ex parte Imoudu, 284 S.W.3d 866, 870 (Tex. Crim. App. 2009) (applying Hill to application for habeas corpus arising from a plea bargain in which applicant alleged that he received ineffective assistance of counsel).

[5] Strickland, 466 U.S. at 687.

[6] Ex parte Imoudu, 284 S.W.3d at 869; Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999) (citing Ex parte Felton, 815 S.W.2d 733, 735 (Tex. Crim. App. 1991)).

[7] Ex parte Imoudu, 284 S.W.3d at 869 (citing Hill, 474 U.S. at 59).

[8] Johnson v. State, 169 S.W.3d 223, 231 (Tex. Crim. App. 2005).

[9] Ex Parte Moore, 395 S.W.3d 152, 156−57 (Tex. Crim. App. 2013).

[10] Ex parte Imoudu, 284 S.W.3d at 869 (citing Strickland, 466 U.S. at 688−89 (citing ABA Standards for Criminal Justice (2d ed. 1980))).

[11] Ex parte Imoudu, 284 S.W.3d at 869.

[12] Strickland, 466 U.S. at 689; see Frangias v. State, 392 S.W.3d 642, 653 (Tex. Crim. App. 2013).

[13] Ex parte Briggs, 187 S.W.3d 458, 467 (Tex. Crim. App. 2005).

[14] Ex parte Napper, 322 S.W.3d 202, 246 (Tex. Crim. App. 2010) (internal quotations and citations removed)(citing to Wiggins v. Smith, 539 U.S. 510, 533 (2003)).

[15] Ex parte Lahood, 401 S.W.3d 45, 50 (Tex. Crim. App.2013) (citing Strickland, 466 U.S. at 691; Ex parte Imoudu, 284 S.W.3d 866, 870 (Tex. Crim. App. 2009)).

[16] Wiggins v. Smith, 539 U.S. 510, 522−23 (2003) (quoting Strickland, 466 U.S. at 690−91).

[17] Wiggins, 539 U.S. at 534.

[18] ABA Standards for Criminal Justice: Prosecution and Defense Function 4-4.1 (3rd ed. 1993) (cited with approval in Ex parte Lahood, 401 S.W.3d 50).

[19] Ex parte Napper, 322 S.W.3d 202, 246 (Tex. Crim. App. 2010).

[20] Id.

[21] Id.

[22] Ex parte Briggs, 187 S.W.3d 458, 465 (Tex. Crim. App. 2005).

[23] Id.

[24] Id. at 468.

[25] Id. at 469.

[26] Ex parte Niswanger, 335 S.W.3d at 616.

[27] Id. at 612.

[28] Id.

[29] Id. at 614.

[30] Id. at 619. This case discusses another line of cases in which claims of ineffective assistance of counsel often fail. These cases concern a failure to object to deficient indictments. Id. at 617. The Court explained that in cases where there is a failure to object to a deficient indictment and the attorney for the State could have re-indicted the applicant and corrected the defects, then there is not likely to be a finding of ineffective assistance of counsel. Id. at 617.

[31] Ex parte Imoudu, 284 S.W.3d at 869.

[32] Ex parte Briggs, 187 S.W.3d at 469.

[33] Id. at 465.

[34] Id. at 466.

[35] Id. at 470.

[36] Id.

[37] Ex parte Imoudu, 284 S.W.3d at 868.

[38] Id. at 870.

[39] Id. at 871 n.4.

[40] Id. at 871.