Phillip Merle Pitts v. State, 05-13-01053-CR

Phillip Merle Pitts pleaded guilty (open plea) to injury to a child causing serious bodily injury and waived a jury; the court accepted the plea, took the case under advisement, and later passed the case for a later guilt/punishment hearing.
After a court-appointed expert found him competent, Pitts obtained new counsel and moved to withdraw his guilty plea; the trial court denied the motion after an evidentiary hearing and later found him guilty and sentenced him to 20 years’ imprisonment.
Pitts argued at the hearing that cognitive deficits and a seizure disorder rendered his plea involuntary. A clinical psychologist testified about processing difficulties but gave no opinion tying seizures to the offense.
Pitts later asserted on appeal (1) the trial court abused its discretion by denying the motion to withdraw the plea and (2) plea counsel was ineffective for failing to investigate seizures and for allegedly promising probation.
Trial counsel testified at the withdrawal hearing: he advised against an open plea, explained the lack of medical support for a post-seizure defense (no tongue abrasions, inconsistent statements), had experience with epileptic clients, and denied promising probation; the record contained conflicting testimony on whether counsel promised probation.

Issue	Plaintiff's Argument (Pitts)	Defendant's Argument (State)	Held
Whether trial court abused discretion in denying motion to withdraw plea	Denial was abusive because plea was involuntary due to cognitive defects and seizure disorder	Motion and hearing focused on involuntariness from cognitive defects; ineffective-assistance theory was not raised below	Not preserved; appellate court will not reverse on a theory not presented to trial court; issue overruled
Whether plea counsel was ineffective making plea involuntary	Counsel failed to investigate seizure disorder, failed to obtain medical evaluation, and told him he would get probation	Counsel reasonably investigated (reviewed records, noted lack of medical support), advised against open plea, client rejected plea offer; conflicting testimony on promise of probation	Counsel not ineffective; appellant failed to show deficient performance or that he would have gone to trial; issue overruled

Mendez v. State, 138 S.W.3d 334 (Tex. Crim. App. 2004) (timeliness and withdrawal of plea when jury waived)
Jackson v. State, 590 S.W.2d 514 (Tex. Crim. App.) (trial court discretion to grant/deny withdrawal after case taken under advisement)
Hailey v. State, 87 S.W.3d 118 (Tex. Crim. App. 2002) (appellate courts should not reverse on legal theories not presented to trial court)
Goodspeed v. State, 187 S.W.3d 390 (Tex. Crim. App. 2005) (ineffective-assistance standards and limits of direct-appeal record)
Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (standard for ineffective assistance of counsel)
Ex parte Moody, 991 S.W.2d 856 (Tex. Crim. App. 1999) (in guilty-plea context, defendant must show he would not have pleaded guilty but for counsel’s errors)