How to Prove Misrepresentation by Lawyer In Texas ?
For counsel to be ineffective at the guilt/innocence phase of trial, the attorney's actions must meet the standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Strickland requires a defendant to show:
(1) that his counsel's representation fell below an objective standard of reasonableness;
(2) the probability that, but for counsel's errors, the result of the proceeding would have been different. See Strickland, 466 U.S. at 688, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674; Hernandez v. State, 988 S.W.2d 770 (Tex. Crim. App. 1999).
In looking at these requirements, a court is to keep in mind that the right to counsel does not guarantee an error-free counsel or counsel whose competency is judged by hindsight. See Hernandez v. State, 726 S.W.2d 53, 58 (Tex. Crim. App. 1986).
Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. See McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996).
Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim. Id.
In reviewing claims of ineffective assistance of counsel, we employ the standard of review set out in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). See Hernandez v. State, 988 S.W.2d 770 (Tex. Crim. App. 1999) (holding Strickland two prong test applies to ineffective assistance claims throughout trial, including punishment).
To reverse a conviction based on ineffective assistance of counsel, the appellate court must find:
(1) counsel's representation fell below an objective standard of reasonableness;
(2) there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. See Strickland, 466 U.S. at 695.
This two-prong standard applies to challenges of guilty pleas. 5 See Ex parte Morrow, 952 S.W.2d 530, 536 (Tex. Crim. App. 1997) (citing Hill v. Lockhart, 474 U.S. 52, 59, 88 L. Ed. 2d 203, 106 S. Ct. 366 (1985)).
To satisfy the second prong of the test enunciated in Strickland, appellant must show there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty, but would have insisted on going to trial. See id; Ex parte Moody, 991 S.W.2d 856, 857-58 (Tex. Crim. App. 1999).
"Misinformation concerning a matter, such as probation, about which a defendant is not constitutionally or statutorily entitled to be informed, may render a guilty plea involuntary if the defendant shows that his guilty plea was actually induced by the misinformation." Brown v. State, 943 S.W.2d 35, 42 (Tex. Crim. App. 1997). However, "a defendant's claim he was misinformed by counsel, standing alone, is not enough for us to hold his plea was involuntary." Fimberg v. State, 922 S.W.2d 205, 208 (Tex. App.--Houston [1st Dist.] 1996, pet. ref'd).
A claim for ineffective assistance of counsel must be affirmatively supported by the record. See Jackson v. State, 973 S.W.2d 954, 955 (Tex. Crim. App. 1998).
Therefore, in determining the voluntariness of a guilty plea, the court should examine the record as a whole. See Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998).
The record should focus specifically on the conduct of trial counsel. See Kemp v. State, 892 S.W.2d 112, 115 (Tex. App.--Houston [1st Dist.] 1994 pet. ref'd).
"Such a record is best developed in the context of [an evidentiary] hearing on application for writ of habeas corpus or motion for new trial." Id.