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Texas Court of Criminal Appeals: Lawyer’s Failure to Advise Client of Opinion Making It Impossible for State to Meet Its Burden of Proof Constitutes Ineffective Assistance of Counsel

by Matt Clarke

On September 27, 2017, the Court of Criminal Appeals of Texas held that a guilty plea for obtaining a controlled substance “through the use of a fraudulent prescription form” was invalid because it was given as a result of deficient legal advice from defendant’s attorney who failed to inform defendant that the prosecution would not be able to meet its burden of proof in light of governing case law precedent.

The prosecution’s theory of the case was that Lewis had hand-written a false prescription on an otherwise legitimate preprinted prescription form bearing the name of a physician’s assistant. Darren Lewis pleaded guilty to using a fraudulent prescription form to obtain a controlled substance in violation of § 481.129(a)(5)(B), Texas Health & Safety Code Ann., and received a five-year plea-bargained prison sentence.

Once he was in prison, Lewis discovered that under Avery v. State, 359 S.W.3d 230 (Tex. Crim. App. 2012), the State would have been unable to meet its burden of proof to convict him of violating § 481.129(a)(5)(B). He filed a habeas-corpus application, arguing that his guilty plea was “involuntary due to the ineffective assistance of his plea counsel” since she did not advise him of Avery. He claimed that had he been apprised of Avery, he would not have pleaded guilty but would instead have insisted on a trial.  

In Avery, the Court of Criminal Appeals explained that under § 481.129(a)(5)(B), the “information that is written on the [prescription] form is not the form itself.” Rather, the term “prescription form” under the statute means “the pre-printed form designed to have prescription information written on it.” The defendant in Avery attempted to increase the dosage on an otherwise valid preprinted prescription form by altering the handwritten dosage information. The Avery Court held that the State’s evidence was insufficient to support a conviction. It instructed that to convict under the statue, the State must prove the defendant presented a “fraudulent” prescription form, not simply that the defendant committed “fraud” by making handwritten changes to an otherwise legitimate form.

The habeas judge recommended that the Court grant Lewis relief based on counsel’s failure to be aware of and thus inform Lewis about Avery, which amounted to ineffective assistance of counsel. The Court of Criminal Appeals agreed.

The Court noted that in order to “be reasonably likely to render reasonably effective assistance to his client, a lawyer must be sufficiently abreast of developments in criminal law aspects implicated in the case at hand.” Ex parte Williams, 753 S.W.2d 695 (Tex. Crim. App. 1988). At a minimum, the Sixth Amendment “guarantees an accused the benefit of trial counsel who is familiar with the applicable law,” said the Court. Therefore, ignorance of “well-defined general laws, statutes and legal propositions is not excusable” and can serve as a basis of a determination of constitutionally ineffective of counsel. Ex parte Chandler, 182 S.W.3d 350 (Tex. Crim. App. 2005).

In the present case, the Court observed that the Avery opinion had been issued over two-and-half years prior to Lewis’ plea. Additionally, its holding is directly on point regarding the central issue in Lewis’ case. The Court determined that the rule of law articulated in Avery was “well considered and clearly defined” with respect to Lewis’ situation. Consequently, the Court concluded that Lewis received ineffective assistance of counsel.

Ordinarily, a defendant must establish that the ineffective assistance resulted in a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceedings would have been different.” Strickland v. Washington, 466 U.S. 668 (1984). However, when a guilty plea is at issue, demonstrating prejudice merely requires a showing “that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on a trial.” Hill v. Lockhart, 474 U.S. 52 (1985).

The Court found Lewis’ affidavit in support of his habeas application credible. In it, he stated that he would not have pleaded guilty had he be advised of Avery and would have insisted on a trial. The Court concluded that he demonstrated prejudice.

Accordingly, the Court of Criminal Appeals granted Lewis’ petition and set aside his conviction. See: Ex parte Lewis, 537 S.W.3d 917 (Tex. Crim. App. 2017). 


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Related legal case

Ex parte Lewis



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