Carson v. State

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NOS. PD-0205-17, PD-0206-17,
PD-0207-17, & PD-0208-17
GARY CARSON, Appellant
v.
THE STATE OF TEXAS
ON STATE’S PETITION FOR DISCRETIONARY REVIEW
FROM THE SIXTH COURT OF APPEALS
BOWIE COUNTY
N EWELL, J., delivered the opinion of the Court in which
K EASLER, H ERVEY, A LCALA, R ICHARDSON, AND W ALKER, JJ., joined. K ELLER,
P.J., filed a concurring and dissenting opinion. Y EARY, J., filed a
concurring and dissenting opinion in which K EEL, J., joined and in
which K ELLER, P.J., joined as to Parts I, II, and III.
O P I N I O N
Appellant, Gary Carson, was charged with three counts of assault
on a public servant and three counts of bail jumping. After Appellant
agreed to waive his right to appeal, the State agreed to waive its right to
Carson-2
a jury trial and the case proceeded before the trial court. Appellant
pleaded guilty to all six charges. The trial court accepted Appellant’s
pleas, found him guilty, and sentenced him. Appellant appealed his
conviction. Having found that Appellant’s waiver of his right to appeal
was invalid, the court of appeals affirmed Appellant’s convictions, but
reversed the assessment of punishment.1 Because we find that
Appellant’s waiver of his right to appeal was valid, we will reverse. We
remand this case to the court of appeals to address whether an exception
to the waiver rules nevertheless applies in this case in which the trial
judge admitted that he considered facts not introduced into evidence
when assessing Appellant’s sentence.
Background
The State indicted Appellant on two counts of assault on a public
servant based on his interactions with Officer Allen Scott Eudy and Officer
Shawn Jacobs on or about January 26, 2014. The indictment also alleged
that Appellant was a habitual offender and listed two prior felonies to
support that allegation. While Appellant was in jail, he assaulted
1
The court did so in four opinions. Carson v. State, 515 S.W .3d 372, 374 n.1 (Tex.
App.— Texarkana 2017) ("The charges were m ade through four separate indictm ents. . . .
W e reach the sam e result in the other three cases, released today in separate opinions
under cause num bers 06–15–00171–CR, 06–15–00172–CR, and 06–15–00173–CR.").
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Sergeant James Michael. The State subsequently charged Appellant with
a third count of assault on a public servant. On July 13, 2015, Appellant
appeared in court and entered a plea of not guilty to the three offenses.
The trial court set the trial for the next day, and ordered Appellant, who
was out of jail on a personal recognizance bond, to appear for trial.
Appellant failed to appear for trial on July 14, 2015. The trial court issued
a bond forfeiture and alias capias.
Appellant was later arrested in Arkansas. On August 6, 2015,
Appellant appeared in the Bowie County District Court and pleaded not
guilty to three counts of failure to appear arising out of his failure to
appear for the July 14 trial setting. The court set Appellant’s trial on the
three assault cases for the following week.
The next week, the State waived a jury trial and Appellant pleaded
guilty to all six charges and true to the two prior felony offenses, which
were listed in his indictments to prove up the State’s habitual offender
allegations. Appellant’s pleas were open pleas with no agreement as to
punishment. Appellant had also executed a written waiver of his right to
appeal prior to entering the pleas. The trial court accepted Appellant’s
pleas to each charge and found him guilty of the same. The only
evidence admitted at the plea hearing was a set of medical records
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detailing Appellant’s mental health issues, medications, and treatment,
entered by Appellant. The trial court sentenced Appellant to fifty years’
imprisonment in each of the assault cases, to run concurrently with each
other, and ten years’ imprisonment on each of the failure to appear
cases, to run concurrently with each other but consecutively to the fifty-
year sentences. The trial court certified that Appellant’s cases were all
plea-bargain cases and that he had no right to appeal.
With the assistance of a newly retained attorney, Appellant filed a
motion for new trial arguing that his sentences were disproportionate to
his crimes and that his trial counsel was ineffective in his representation
of Appellant. At the hearing, the trial court indicated that it had
considered the convictions listed in the State’s 404(b) notice when
deciding upon an assessment of punishment. At the conclusion of the
hearing on Appellant’s motion for new trial, Appellant objected to the trial
court’s use of the convictions listed in the State’s 404(b) notice as factors
in the punishment assessment. Appellant argued that the convictions
were never admitted into evidence and, therefore, they were mere
allegations that could not be factored into the court’s determination of
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punishment.2 The trial court denied Appellant’s motion for new trial.
Appellant then filed a motion to amend the certification of his right
to appeal. Appellant argued that his case was not a plea-bargain case,
as indicated on the certifications signed by the trial judge, because there
was no agreement as to Appellant’s punishment. Appellant requested the
court to grant him permission to appeal or, in the alternative, to certify
that Appellant had waived his right to appeal, in which case Appellant
advised that he intended to argue an exception to the waiver rule.
Although he indicated that the certificates may not be accurate, the trial
court judge declined to amend the certifications and denied Appellant’s
motion.
Appeal
Despite his waiver of appeal, Appellant appealed his case. Appellant
argued that his waiver of appeal was invalid. He also argued that the trial
judge was biased against him because the trial court had considered the
unproven extraneous offense allegations in the State’s 404(b) notice.
According to the court of appeals, Appellant’s waiver of his right to
appeal was invalid because, at the time he executed the waiver, it was
2
It is undisputed that the State did not adm it evidence of any of the convictions it
alleged in its 404(b) notice letter at Appellant’s plea and sentencing hearing.
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not possible for Appellant to know that the trial court would base its
sentence on extrajudicial evidence. Carson v. State, 515 S.W.3d 372,
382 (Tex. App.—Texarkana 2017). Additionally, the court of appeals held
that Appellant’s waiver of appeal was invalid due to a failure of
consideration. The court explained that a pre-sentence waiver is valid
when it is executed in exchange for a plea agreement with a
recommended sentence; however, when there is no agreement on
punishment the waiver is invalid. Id. at 383.
Additionally, the court distinguished Ex parte Broadway, in which we
upheld a pre-sentence waiver when the State agreed to waive its right to
a jury trial. The court pointed out that the pre-sentence waiver in
Broadway was executed in order to induce the State to waive a jury trial
because only the court could give Broadway deferred adjudication. Id. at
384. Thus, the waiver in Broadway provided a legal benefit to the
defendant. The court found that Appellant did not gain an advantage by
waiving his right of appeal in this case and that a jury provided no
advantage to either party. Id. at 384-85. Therefore, in the absence of
some clear benefit to Appellant, it concluded that Appellant’s pre-
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sentence waiver was unknowing and invalid.3
Discussion
We granted the State’s petition for discretionary review on four
issues.4 Three of the State’s issues involve the validity of pre-sentence
waivers of the right to appeal; the fourth issue involves whether Appellant
preserved error on the trial court’s consideration of facts not in evidence
at the plea and sentencing hearing. As explained below, we find that
Appellant’s pre-sentence waiver of his right to appeal was a valid waiver
of his right. Therefore, Appellant has waived his right to contest the
merits of his case on direct appeal, and we do not reach the fourth issue.
Waiver of the Right to Appeal
Generally speaking, a criminal defendant has a statutory right to
3
W ith regard to Appellant’s claim that he had been denied an im partial judge in
violation of due process, the court of appeals held that the trial court’s reliance upon
extrajudicial sources during punishm ent was sufficient to show bias and deprivation of due
process. Id. at 379. Accordingly, the court of appeals affirm ed the convictions but reversed
the cases on punishm ent, rem anding for a new punishm ent hearing. Id. at 385-86.
4
The issues, as enum erated in the State’s petition for discretionary review, are:
1. Is a waiver of the right to appeal following a plea of guilty without a
recom m ended sentence invalid because the defendant could not know
that an error would occur at the punishm ent phase?
2. Is the State’s waiver of its right to a jury trial adequate consideration
to uphold a defendant’s waiver in the face of potential future errors
and uncertain punishm ent?
3. Does the classification of an error affect the validity of an appellant’s
waiver of his right to appeal?
4. May the trial court’s unobjected-to consideration of facts not in
evidence be raised for the first tim e on appeal?
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appeal.5 However, a defendant in a non-capital case may waive any
rights secured to him by law.6 A waiver of the right to appeal must be
made voluntarily, knowingly, and intelligently.7 A valid waiver will
prevent the defendant from appealing any issue unless the trial court
consents to the appeal.8 Prior to 2000, we had held that pre-trial and
pre-sentence waivers of appeals were involuntary and could not be
knowingly and intelligently made because “the defendant has no way of
knowing with certainty the punishment that will be assessed and cannot
anticipate the errors that may occur during trial.” 9
In Blanco v. State, we addressed whether a defendant’s pre-trial
waiver of appeal was valid when the defendant promised not to appeal his
conviction in exchange for the prosecution’s promise to recommend to the
trial court that it assess a sixteen-year sentence.10 In that case, the trial
court followed the prosecution’s recommendation and sentenced the
5
T EX . C O D E C RIM . P RO C . art. 44.02.
6
T EX . C O D E C RIM . P RO C . art. 1.14(a).
7
Monreal v. State, 99 S.W .3d 615, 617 (Tex. Crim . App. 2003).
8
Id.
9
Blanco v. State, 18 S.W .3d 218, 219 (Tex. Crim . App. 2000) (quoting Ex parte
Townsend, 538 S.W.2d 419, 420 (Tex. Crim . App. 1976)).
10
Blanco, id.
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defendant to sixteen years’ imprisonment, but the defendant still
appealed.11 We noted that the considerations that led us to invalidate
pre-trial waivers of the right to appeal in previous cases were less
compelling where the defendant knew what his punishment would be if
the trial court accepted the plea-bargain and knew what errors may have
occurred during trial when he waived his right to appeal.12 The parties
had bargained for the recommended sentence and waiver of defendant’s
right to appeal, and there was no reason that the State should not be
able to insist on the benefit of its bargain.13 Therefore, we upheld the
defendant’s pre-trial waiver of his right to appeal.14
In Ex parte Delaney, we addressed the impact of pre-trial or pre-
sentence waivers of the right to appeal punishment issues.15 Delaney had
pleaded guilty without a recommended sentence and waived his right to
appeal.16 His waiver was executed prior to his adjudication and
11
Id.
12
Id. at 219-20.
13
Id. at 220.
14
Id.
15
207 S.W .3d 794 (Tex. Crim . App. 2006).
16
Id. at 795.
 Carson-10
sentencing, was unbargained for, and the punishment was uncertain.17
The trial court placed Delaney on deferred adjudication, which was
ultimately revoked; his guilt was adjudicated, and he was sentenced to
confinement for life.18 We found that Delaney had not validly waived his
right to appeal.19 We noted that regardless of the fact that the defendant
was placed on deferred adjudication, the punishment that could be
assessed if his guilt was adjudicated was not certain so the consequences
of the waiver were unknown.20 We held that in order for a pre-trial or
pre-sentence waiver of the right to appeal to be binding at the
punishment phase of trial, the waiver must be voluntary, knowing, and
intelligent.21 We noted that one way to determine if the waiver meets
this criteria is for the actual punishment or maximum punishment to have
been determined by a plea agreement when the waiver was made.22
More recently, we were asked to determine whether a defendant can
voluntarily waive his appeal when sentencing was not agreed upon, but
17
Id. at 798.
18
Id. at 796.
19
Id. at 799.
20
Id. at 798.
21
Id. at 799.
22
Id.
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where consideration was given by the State.23 In Ex parte Broadway, we
held that the State’s waiver of its right to a jury trial was consideration
given in exchange for the defendant’s waiver of his right to an appeal. 24
A key fact that led us to that holding was that the defendant had
negotiated with the State and induced it to waive a jury trial.25 The
defendant wanted to proceed before the trial court because a jury could
not place him on deferred adjudication, but the trial court could.26 The
record indicated that the State did not want to consent to waive its right
to a jury, but did so in exchange for the defendant’s waiver of his right to
appeal.27
Unlike in Delaney, the State did not merely consent to a bench trial
on punishment in Broadway.28 Although Broadway was not a plea-
bargain case in which the State recommended a punishment, it did
contain “a bargain of a different sort,” which was missing in Delaney.29
23
Ex parte Broadway, 301 S.W .3d 694, 695-96 (Tex. Crim . App. 2009).
24
Id. at 698-99.
25
Id. at 698.
26
Id.
27
Id. at 697-98 (noting that the State m ust consent to a defendant’s waiver of a
jury trial, but did not want to in this case).
28
Id.
29
Id. at 697-98.
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Consent to proceed to a bench trial, thus waiving the right to a jury trial,
by itself is not sufficient to qualify as consideration for defendant’s waiver
of his right to appeal. Rather, the record must show that the State gave
up its right to a jury in exchange for the defendant’s waiver of his
appeal.30
From this review, we determined that a defendant may knowingly
and intelligently waive his appeal as part of a plea when consideration is
given by the State, even when sentencing is not agreed upon.31 In
Broadway, the defendant received consideration from the State, by way
of its waiver of its right to a jury, in exchange for his waiver of his right
to appeal; therefore, his waiver was valid.32
The State argues that we should abandon the requirement of finding
either a bargain between the State and the defendant or knowledge of
the consequences in determining whether an open plea is knowingly and
intelligently made. However, as outlined above, these requirements have
30
See W ashington v. State, 363 S.W .3d 589, 590, nn.2-3 (Tex. Crim . App. 2012)
(per curiam ) (noting that the record m ust confirm that the State gave consideration for the
defendant’s waiver; specifically com paring evidence of consideration on the record in
Broadway and the lack thereof in Delaney).
31
Id. at 699. In Jones v. State, we extended this holding to situations in which the
defendant waives his right to appeal in exchange for the State’s abandonm ent of an
enhancem ent, pursuant to a plea agreem ent. 488 S.W .3d 801, 808 (Tex Crim . App. 2016).
32
Broadway, 301 S.W .3d at 699.
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developed over time and are part of the fabric of our jurisprudence. We
do not overturn our precedent lightly.33 So long as a prior decision was
not poorly reasoned or unworkable, we will follow that precedent.34 We
are not persuaded that Blanco, Delaney, or Broadway were poorly
reasoned. Nor have they proven unworkable. We are easily able to apply
these cases to determine the outcome in this present case.
Appellant’s Waiver of the Right to Appeal
In the present case, the key issue is whether the State gave
consideration for Appellant’s waiver of his right to appeal. The State
argues that, under Broadway, its waiver of its right to a jury trial is
sufficient consideration and, therefore, Appellant’s waiver of his right to
appeal is valid. Appellant argues that there was no consideration because
the trial court’s reliance on extrajudicial sources in its sentencing decision
was “eating through the framework of the relevant proceedings,”
undermining any consideration.35 After reviewing the record, we find that
Appellant negotiated with the State in order to ensure that he would have
his case heard by the trial court, as opposed to a jury.
33
Paulson v. State, 28 S.W .3d 570, 571 (Tex. Crim . App. 2000).
34
Id. at 571-72.
35
Appellant also argues that even if there was consideration, his due process rights
to a fair and unbiased judge should take precedence.
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At a pre-trial hearing the week before Appellant’s trial setting on the
three assault charges, Appellant’s counsel specifically asked the
prosecutor if she was going to waive the jury. The prosecutor responded,
“No. I don’t intend to waive.” The following week Appellant pleaded
guilty to all six charges, and the trial court found Appellant guilty and
sentenced him. The testimony of Appellant’s trial counsel at the hearing
on his motion for new trial sheds some light on what occurred between
the pre-trial hearing and Appellant’s guilty-plea hearing. Appellant’s trial
counsel testified that he believed Appellant had waived his right to appeal
because he had “negotiated to get the State to waive a jury.”
[Y]’all wanted a jury trial if he didn’t waive his right to appeal.
So in consideration for waiving – y’all, being the State waiving
jury, we were still waiving a right to appeal because you had
informed me, well if we’re going to have do to an appeal and
everything then we might as well go to a jury trial.
The prosecuting attorney confirmed that she had informed trial counsel
that she would want to go to a jury if Appellant intended to appeal. Trial
counsel stated that he had explained to Appellant that his best chance at
a less severe punishment was to have the trial court assess his
punishment. Therefore, in order to ensure that the trial court would
assess Appellant’s punishment, he had to waive his right to appeal,
despite the fact that he was entering an open plea.
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When pressed about whether the State’s waiver of a jury trial was
really consideration to Appellant, trial counsel responded that “it was
consideration to [Appellant] because [Appellant] did not want a jury
trial.” The prosecutor and Appellant’s trial counsel also discussed that
they had gone against each other in several cases. Appellant’s trial
counsel indicated that, based on his knowledge of the prosecutor,
Appellant’s waiver of his right to appeal was the only way to ensure his
entire case would be tried before the trial court.
Given these exchanges, it is clear that Appellant’s trial counsel and
the prosecutor had discussed the possibility of going to a jury and
Appellant’s desire not to do so. It is also apparent that the State did not
want to consent to a bench trial if there was a possibility of a later
appeal. On this record, we find that Appellant negotiated a bargain of a
different sort, similar to that in Broadway. The State’s waiver of its right
to a jury trial in this case was similarly induced by Appellant’s waiver of
his right to appeal. Therefore, we hold that Appellant’s waiver was made
in exchange for consideration given by the State and, thus, was
voluntary, knowing and intelligent.
Appellant argues, as he did to the Sixth Court of Appeals, that his
case falls under the Rankin/Young exception to the waiver rule. Under
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this exception a defendant who pleaded guilty or no contest, and waived
or forfeited his right to appeal, may still appeal an error when the
judgment depends upon or is supported by the error.36 However, based
on its ruling that Appellant’s waiver was invalid, the court of appeals
specifically declined to address this argument. As we did not grant
discretionary review on this issue, the parties have not fully briefed it.
We decline to review it at this time.
Conclusion
Appellant negotiated with the State and promised to waive his right
to appeal in exchange for the State’s promise to waive a jury. Given the
circumstances in this case, we hold that the State’s waiver of its right to
a jury was sufficient consideration to render Appellant’s waiver of his right
to appeal knowing and intelligent. Because we find that Appellant’s
waiver of his right to appeal was valid, we do not reach the State’s issue
on preservation of error. Although we find Appellant’s waiver of his right
to appeal was valid, we remand this case to the court of appeals to
address the unanswered question of whether Appellant’s claim meets an
exception to the waiver rules.
36
Rankin v. State, 46 S.W .3d 899, 901 (Tex. Crim . App. 2001); Young v. State,
8 S.W .3d 656, 666-667 (Tex. Crim . App. 2000).
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Delivered: September 19, 2018
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