Carson v. State

559 S.W.3d 489

Gary CARSON, Appellant

v.The STATE of Texas

NOS. PD-0205-17

PD-0206-17

PD-0207-17

& PD-0208-17

Court of Criminal Appeals of Texas.

Delivered: September 19, 2018

Michael R. Casillas, Attorney at Law, 133 N. Riverfront Blvd., LB-2, Dallas, Texas 75207, for Appellant.

John R. Messinger, Assistant State Prosecuting Attorney, Bar I.D. No. 24053705, P.O. Box 13046, Austin, Texas 78711, Stacey Soule, State's Attorney, Austin, for State of Texas.

OPINION

Newell, J., delivered the opinion of the Court in which Keasler, Hervey, Alcala, Richardson, and Walker, JJ., joined.

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 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 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 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 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 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-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 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 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 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...