Ex Parte Niswanger
2011 Tex. Crim. App. LEXIS 390
| Tex. Crim. App. | 2011Background
- Applicant Niswanger was charged with impersonating a public servant under Texas Penal Code §37.11(a)(1) and initially faced enhancement under six prior felonies.
- At the time of the incident, he displayed a Grandview Fire Department badge/id while selling raffle tickets; officer Solly investigated whether a permit was required.
- Indictment alleged he impersonated a fireman to induce Solly to purchase raffle tickets for a firefighter fund.
- Applicant pled guilty after defense counsel advised a plea to ten years in prison, influenced by anticipated trial risk and sentencing ranges.
- Applicant claimed the plea was involuntary due to ineffective assistance of counsel for failing to investigate the facts and the indictment's sufficiency.
- Trial court denied relief; the Court of Criminal Appeals addressed whether counsel’s performance fell within the bounds of Strickland v. Washington.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was counsel's representation ineffective for plea advice? | Niswanger asserts counsel failed to investigate facts undermining the State's case. | Niswanger contends counsel advised a guilty plea based on weak understanding of indictment/facts. | No effective assistance; plea affirmed. |
| Did the indictment sufficiently allege an offense under §37.11(a)? | Benoit-style defects could render indictment defective if not an offense. | Indictment alleged impersonation with badge to induce raffle-ticket purchase; possible defects could be cured by reindictment. | Indictment, though debatable, did not render counsel ineffective; not required to attack indictment. |
| Did counsel's failure to attack the indictment constitute deficient performance under Strickland? | Counsel should have challenged the indictment given unsettled law on 'official act' and impersonation. | Given potential reindictment and strategic considerations, advising plea was within professional norms. | Counsel's performance fell within the range of reasonable professional competence. |
| Was there a reasonable probability that but for counsel's errors, applicant would have gone to trial and avoided a harsher sentence? | But-for errors, Niswanger would have insisted on trial. | The plea offered ten years was a favorable option; trial risk could yield 25-to-life. | No showing of prejudice; plea not involuntary. |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (1984) (establishes two-prong standard for ineffectiveness and prejudice)
- Ex parte Harrington, 310 S.W.3d 452 (Tex.Crim.App.2010) ( Sixth Amendment right to counsel in plea proceedings)
- Hill v. Lockhart, 474 U.S. 52 (1985) (prejudice standard for guilty pleas under Strickland)
- Benoit v. State, 561 S.W.2d 810 (Tex.Crim.App.1977) (indictment defects and plea considerations prior to Strickland)
- Tovar v. State, 777 S.W.2d 481 (Tex.App.-Corpus Christi 1989) (overt act requirement for impersonation cases)
- Boyett v. State, 368 S.W.2d 769 (Tex.Crim.App.1963) (indictment and official-act analysis in impersonation context)
- Johnson v. State, 169 S.W.3d 223 (Tex.Crim.App.2005) (prejudice consideration for plea-related ineffectiveness claims)
- Ex parte Reed, 271 S.W.3d 698 (Tex.Crim.App.2008) (alternative fact-finding authority in post-conviction review)
- Ex parte Battle, 817 S.W.2d 81 (Tex.Crim.App.1991) (requirements for evaluating counsel's performance)