First DIVERT warning

I have been researching Texas DWI, deferred adjudication, illegal sentence, and expunction law for the past month. While I believe there are many problems with the Harris County DIVERT program, here is the biggest issue i think a defendant in the DIVERT program will face...

Situation: Your client enters DIVERT after pleading guilty in open court. Sly Roger Bridgewater follows your client home and watches your client pop a cold one, in the comfort of his living room, after a long day at work. The next day Roge moves to revoke and the judge adjudicates your client's guilt.

You subsequently appeal on the basis that DIVERT is not "pre-trial diversion" but in reality is "deferred adjudication," in violation of Tex. Code Crim. Proc. Ann. art. 42.12 § 5(d), making your client's sentence illegal and therefore void.

While technically your client's sentence is illegal and void, he appears to have little chance for relief on appeal or through a writ of habeas corpus.

In 1991, the Court of Criminal Appeals held that an illegal sentence ordered after a defendant entered into a plea bargain rendered both the guilty plea and sentence void. See Heath v. State, 817 S.W.2d 335, 337 (Tex. Crim. App. 1991), abrogated by Ex Parte Williams, 65 S.W.3d 656, 657-58 (Tex. Crim. App. 2001).

In Ex Parte Williams, Judge Keasler held that an illegal sentence and an unauthorized grant of probation were different. Id. at 657. "Community supervision is not a sentence or even part of a sentence." Id. citing Speth v. State, 6 S.W.3d 530, 532 (Tex. Crim. App. 1999). Therefore, the law regarding illegal sentences cannot be applied to an illegal grant of community supervision. Ex Parte Williams, 65 S.W.3d at 657.

Ex Parte Williams also held that a defendant similar to Heath (and similar to your DIVERT client) would not be entitled to habeas relief. Id. at 658. To show harm, a defendant must show that "the illegal grant of probation contributed to the voluntariness of [the defendant's] plea." Id. Without this showing of harm, habeas relief is unavailable. Id.

The Williams Court stated,

"Indeed, since he received probation anyway, eligible or not, it is hard to imagine how the illegality of that probation affected the voluntariness of his plea. In any event, it certainly did not contribute to his conviction or punishment. Rather, it did just the opposite--detracted from his punishment by allowing him a suspended sentence when he was not entitled to one." Id.

It seems the biggest issue for you and your client on appeal will be to show that the judge's illegal grant of deferred adjudication induced your client's plea.

The only difference between Ex Parte Williams and your potential DIVERT client involves community supervision/probation vs. deferred adjudication. If there is a glaring difference between the two that would destroy my analysis please let me know.

Hope this helps.

Please do not hesitate to berate, applaud, or otherwise ignore this post. Comments are always welcome.

Chris
christopher.jeansonne@ttu.edu