Thomas v. State

615 S.W.3d 552

Ether Laver THOMAS, Appellant

v.The STATE of Texas, Appellee

NO. 01-18-00504-CR

Court of Appeals of Texas, Houston (1st Dist.).

Opinion issued December 1, 2020

D. Craig Hughes, 7324 Southwest Freeway, Ste. 1466, Houston, Texas 77074, for Appellant.

Brian M. Middleton, District Attorney, Fort Bend County, Texas, John J. Harrity, III, 301 Jackson Street, Room 101, Richmond, Texas 77469, for Appellee.

Panel consists of Justices Keyes, Lloyd, and Landau.

Evelyn V. Keyes, Justice

Appellant, Ether Laver Thomas, pleaded guilty to one count of first-degree theft and one count of first-degree money laundering without an agreed punishment recommendation. After a hearing, the trial court sentenced appellant to 28 years' confinement. In a single issue with two subparts, appellant contends that (1) she did not validly waive her right of appeal and, therefore, this Court has jurisdiction over this appeal, and (2) her guilty plea was not knowing or voluntary because she pleaded guilty without a sentencing recommendation on the poor advice of counsel and received a harsher sentence than she expected. The State responds that appellant's guilty plea was entered into knowingly and voluntarily and that we should dismiss this appeal because appellant validly waived her right of appeal. The State also argues that appellant waived error by presenting an improper multifarious issue that combines whether she waived her right to appeal with a claim that her guilty plea was involuntary due to ineffective assistance of counsel, and thus appellant inadequately briefed her issue so that it presents nothing for review.

We affirm.

Background

In September 2015, appellant was indicted for one count of theft of $200,000 or more and one count of money laundering of $200,000 or more, each a first-degree felony offense at the time,¹ "pursuant to one scheme and continuing course of conduct" between 2007 and 2014. Appellant and six co-conspirators were accused of stealing more than $8 million from an engineering company at which one of the co-conspirators, Andrea Davidson, was employed as an accountant. In June 2017, the State filed a disclosure in this case stating that Davidson had been found guilty in February 2017 of first-degree theft of more than $200,000 "for similar acts committed during the timeframe for which [appellant] [was] indicted" and received a twenty-eight-year prison sentence. The disclosure stated, "Davidson admitted to committing the offense and implicated [appellant]."

In November 2017, appellant pleaded guilty to both offenses. She signed and initialed next to each paragraph of a written guilty plea, which included the trial court's written admonishments, her waiver of certain statutory and constitutional rights, stipulations, and a judicial confession. Appellant was admonished that she was charged with two-first degree felony offenses for theft and money laundering with a punishment range of "5 to 99 years or life and up to a $10,000 fine." She was also admonished that the State's punishment recommendation, if any, was not binding on the court and that if the court's punishment did not exceed the State's recommendation agreed to by appellant, then appellant could appeal only with the court's permission.

Appellant waived certain statutory and constitutional rights, including the right to trial by jury, and she "request[ed] the consent and approval of the [trial court] and the attorney for the State to such waiver." Appellant stipulated that she entered her guilty plea to the two offenses voluntarily after fully consulting with her attorney and having been satisfied that her attorney properly represented her. In a section regarding a punishment recommendation by the State, the stipulation stated, "[The] State will waive its right to a jury trial. This is an ‘open’ plea without a recommendation." After appellant signed her guilty plea, her trial counsel also signed, certifying that she had consulted with appellant and advised appellant of her rights; that appellant was mentally competent, fully understood the trial court's admonishments, and was fully aware of the consequences of her written guilty plea; and that trial counsel "believe[d] this document [the guilty plea] was knowingly and voluntarily executed by [appellant]." Finally, the attorney for the State also signed appellant's guilty plea, certifying the State's consent to and approval of "[appellant's] waiver of trial by jury and the stipulations contained in this document." Appellant's guilty plea expressly waived her right to a jury trial, but it did not state that it waived appellant's right to appeal.

In addition to her written guilty plea, however, appellant signed a separate document, entitled "Defendant's Waiver of Right to Appeal – Guilt Innocence only." In this document, appellant acknowledged:

that if the punishment assessed by [the trial court] does not exceed the punishment recommended by the State and agreed to by [appellant] and [appellant's] attorney, [appellant] must have the permission of [the trial court] before [she] may prosecute an appeal on any matter in this case, except for those matters raised by written motions prior to trial.

Appellant "voluntarily waive[d] [her] right to file a Motion for New Trial, a Motion in Arrest of Judgment, a Notice of Appeal, or any right to appeal that [she] may have in this cause of action."

Neither appellant's written guilty plea nor her appeal waiver confirmed that the State would recommend a punishment or stated what the recommendation would be. Necessarily, neither included an agreement between the State and appellant and her counsel as to what her punishment should be.

After accepting appellant's guilty plea, the trial court issued a certificate of appellant's right of appeal. See TEX. R. APP. P. 25.2(a)(2) ("The trial court shall enter a certificate of the defendant's right of appeal each time it enters a judgment of guilt...."). The certificate checked two boxes, certifying both that appellant's case "is a plea-bargain case, and the defendant has no right of appeal ... as to guilt/innocence" and that "the defendant has waived the right of appeal as to guilt/innocence." This certificate of appellant's right of appeal as to guilt/innocence did not say anything about appellant's having waived the right to appeal the sentence rendered by the trial court.

At appellant's plea hearing on November 17, 2017, the State offered into evidence, without objection from appellant, appellant's written guilty plea, including the written admonishments, waiver of rights, and stipulations and judicial confession; the trial court's order accepting appellant's guilty plea; the trial court's certification of appellant's right of appeal; and appellant's written waiver of her right to appeal her sentence if not greater than the State's recommendation. And, where the printed form stated that "the attorney for the State will recommend to the Court that my punishment be assessed at the following," was a handwritten insertion stating, "State will waive its right to a jury trial. This is an ‘open’ plea without a recommendation." The State also offered into evidence forty exhibits, consisting primarily of banking records, without objection from appellant.

Appellant testified that she understood she was charged with two first-degree felony offenses with a punishment range from five to ninety-nine years or life in prison and a fine up to $10,000. Appellant pleaded guilty to both offenses during the following colloquy:

[Trial Court]: And are you pleading guilty freely and voluntarily?

[Appellant]: Yes.

[Trial Court]: In other words, no one is forcing you to make this plea?

[Appellant]: Correct.

[Trial Court]: And I understand that there's no plea agreement at this time, and you're going to be coming to the Court for punishment. And that's what you're asking, correct?

[Appellant]: Yes.

....

[Trial Court]: And, ma'am, you also understand that you have the right to have a jury trial?

[Appellant]: Yes.

[Trial Court]: And are you giving up or waiving your right to that jury trial?

[Appellant]: Yes.

[Trial Court]: And if your case were tried to a jury, you would also have the right to an appeal. Do you understand that?

[Appellant]: Yes.

[Trial Court]: And are you also waiving your right to that appeal?

[Appellant]: Yes.

[Trial Court]: Very well. At this time, I'm going to withhold a finding of guilt on your part. We're going to reset your case for what we call a sentencing hearing.

The trial court's order accepting appellant's guilty plea stated that appellant was mentally competent and was "represented by competent and effective counsel," that she received and fully understood the court's admonishments, and that she voluntarily and knowingly executed a waiver of her right to a jury trial after the court admonished her of the consequences of her plea. The order did not mention an appeal waiver.

In March 2018, the trial court held a sentencing hearing. The State presented two witnesses. The first witness was the complainant, Dr. Manmohan Kalsi, who testified that he had owned Kalsi Engineering, an engineering company, since 1978, and that he hired Davidson as an accountant in 2002. Davidson would invite many other people, including appellant, to her office at Kalsi Engineering, and Dr. Kalsi testified that he would welcome them, so he had met appellant and had seen her at least twice a year while Davidson worked for him from 2002 to 2014. Appellant was never, however, employed by Kalsi Engineering or by Dr. Kalsi. The trial court admitted into evidence a summary of financial records showing that appellant, Davidson, and their co-conspirators stole nearly $8.5 million from Kalsi Engineering between 2007 and 2014 and that more than $3 million was stolen by appellant alone.

The State's second witness, M. Cardenas, an investigator in the Economic Crimes Division of the Fort Bend County District Attorney's Office, had prepared summaries of appellant's and Davidson's...