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.").
 Carson-3
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
 Carson-4
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
 Carson-5
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.
 Carson-6
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-
 Carson-7
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?
 Carson-8
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.
 Carson-9
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.
 Carson-11
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.
 Carson-12
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.
 Carson-13
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.
 Carson-14
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.
 Carson-15
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
 Carson-16
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).
 Carson-17

Delivered: September 19, 2018

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