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.

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 *491Michael. 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 *492argued 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.

*4937 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 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 *494when 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 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 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 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.

*49534 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.

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.

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.

*496On 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 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.

Keller, P.J., filed a concurring and dissenting opinion.

Yeary, J., filed a concurring and dissenting opinion in which Keel, J., joined and in which Keller, P.J., joined as to Parts I, II, and III.

The Court holds that Appellant validly waived his right to appeal, but then it remands the case for the court of appeals to decide whether Appellant meets an exception to the waiver rules. The "exception" to which the Court refers, however, is not an exception to an explicit waiver of appeal. It is an exception to what is known as the *Helms* rule, which dictated that certain types of error were impliedly waived by a defendant's guilty plea. As I explain later, this "exception" largely abrogated the *Helms* rule, making the *Helms* rule the "exception" to a general rule allowing appeals from non-negotiated guilty pleas, absent an explicit waiver of appeal.

In 1972, this Court held in *Helms v. State* , that where a plea of guilty is voluntarily and understandingly made, all non-jurisdictional defects, including claimed deprivations of federal due process, are waived.1 The *Helms* rule discouraged guilty pleas because it forced a defendant to go to a full trial on the merits if he wanted to preserve issues for appeal.2

*497In response to *Helms* , the legislature amended Article 44.02 in 1977 to add this proviso, which created a somewhat different rule for plea bargains:

> ... provided, however, before the defendant who has been convicted upon either his plea of guilty or plea of nolo contendere before the court and the court, upon the election of the defendant, assesses punishment and the punishment does not exceed the punishment recommended by the prosecutor and agreed to by the defendant and his attorney may prosecute his appeal, he must have permission of the trial court, except on those matters which have been raised by written motion filed prior to trial.3

In *Griffin* , we held that this new rule eliminated appeals in negotiated pleas for all types of claims where the punishment did not exceed that agreed upon, but created exceptions for matters raised by written pretrial motion (and ruled upon) or on which the trial court had granted permission to appeal.4 By allowing a defendant to enter a negotiated plea and nevertheless preserve issues by pretrial motion (or with the trial court's permission), the amendment encouraged plea bargains and discouraged the practice of trying cases solely in order to preserve an issue for appeal.5

But the proviso applied only to negotiated pleas. The *Helms* rule remained in effect for non-negotiated pleas of guilty.6 We later clarified, however, that the *Helms* waiver principle applied only to defects occurring before the entry of the plea, so a full statement of the *Helms* rule was that a (non-negotiated) guilty plea resulted in the (implied) waiver of nonjurisdictional7 defects occurring prior to the entry of the plea.8 Then, in *Young v. State* ,9 we largely abrogated the *Helms* rule10 by holding that a non-negotiated guilty plea waived or forfeited the right to appeal a claim of error only when the judgment of guilt was rendered independent of and not supported by the error.11

Appellant asks us to consider whether the *Young* exception allows him to appeal his conviction in spite of any implied waiver under *Helms* . It may well be *Young* would do so if Appellant's waiver of appeal were just an implied waiver, because *Young* pretty much did away with the idea that a non-negotiated guilty plea forfeits the right to appeal. But our caselaw imposing, *498clarifying, and then largely abrogating a rule that a guilty plea gave rise to a limited, implied waiver of appeal has no bearing on the effect of an explicit waiver of appeal. All that is required of an explicit waiver of appeal is that the waiver be made voluntarily, knowingly, and intelligently.12 Because Appellant executed an explicit waiver of appeal, the *Helms**/**Young**/**Rankin* line of cases cannot provide Appellant the relief that he seeks.

I concur in the Court's decision to reverse the court of appeals's judgment on the basis that Appellant validly waived his right to appeal, but I dissent from the decision to remand for further proceedings.

***CONCURRING AND DISSENTING OPINION***

Yeary, J., filed a concurring and dissenting opinion in which Keel, J. joined, and in which Keller, P.J., joined as to Parts I, II, and III.

I agree that the judgment of the court of appeals in this case must be reversed, and I concur in the Court's judgment today to that extent. But I agree with Presiding Judge Keller that a remand is unnecessary, for the reasons she explains. Moreover, the Court should not remand the cause to the lower appellate court without also addressing the State Prosecuting Attorney's (SPA) fourth ground for review, because a resolution of that claim in the SPA's favor would moot any necessity for a remand in any event. In addition, I have issues with the way in which the Court goes about resolving the SPA's first three grounds for review. As I will explain in more detail below, for these reasons, I respectfully dissent to the Court's remand.

**I.**

Assuming the Court is correct to hold that Appellant's waiver of appeal was not invalid under the *Delaney* / *Broadway* line of cases,1 I would not remand the cause to the court of appeals to address Appellant's alternative argument under *Rankin* / *Young* .2 As Presiding Judge Keller explains, that claim is essentially frivolous. It is true that the court of appeals did not have to reach this alternative argument on original submission because of its holding that the waiver was invalid on other grounds,3 and that this Court does not usually address an issue that has not been decided by the lower court; but it is equally true that we *can* address such an issue, for the sake of judicial economy, when the proper resolution is plain. *Gilley v. State* , 418 S.W.3d 114, 119 (Tex. Crim. App. 2014). That is the case here, and there is nothing to be gained by remanding the cause to the court of appeals.

**II.**

Concerning the SPA's first three grounds for review, the Court today announces its intention to simply adhere to prior precedents. Majority Opinion at 494-95. As accurately described by the Court, our prior decisions recognize that a purported waiver of appeal may prove invalid in two instances: (1) where an appellant could not have anticipated an issue that might arise at the time he executed the waiver (what I will call the "anticipation"

*499criterion);4 and (2) where he received no consideration from the State in exchange for the waiver (what I will call the "consideration" criterion).5*Id.* at 492-94. The SPA has made a number of intriguing arguments why this Court should reject each of these. We should reject the "anticipation" criterion, urges the SPA, because it is inconsistent with our more recent jurisprudence that recognizes that a defendant can waive his constitutional rights "knowingly and intelligently"-so long as he is aware of what he does *not* know at the time of the waiver and persists in executing the waiver anyway.6 We should likewise reject the "consideration" criterion, the SPA contends, because it inappropriately limits a defendant's right to determine his own destiny on his own terms.7 We granted the SPA's petition specifically in order to examine these arguments. We should not reject them now based on nothing more than a rote reliance on stare decisis.

**III.**

Having thus announced its decision to rely on our prior precedents, however, the Court proceeds to analyze the instant case only against the "consideration" criterion, concluding that "Appellant's waiver was made in exchange for consideration given by the State and, thus, was voluntary, knowing and intelligent." Majority Opinion at 496. But the court of appeals also (and arguably, primarily) found Appellant's waiver to be invalid as measured against the "anticipation" criterion. *See**Carson v. State* , 515 S.W.3d 372, 382 (Tex. App.-Texarkana 2017) (Appellant's waiver of appeal *500was invalid "because at the time he executed the waiver, it was not possible for him to have known that the trial court would base its sentence on extrajudicial evidence"); *id.* at 385 ("[W]e find that [Appellant's] presentence waiver was unknowing and invalid as to any error in the punishment/sentencing phase of the trial because [Appellant] was in no position to know the nature of the claims he could have brought on appeal in the absence of the waiver."). It seems to me that this Court cannot fairly reverse the court of appeals' opinion in this case without addressing this alternative criterion as well.

**IV.**

We could take a different approach to reach the same result, but without the remand. In its fourth ground for review, the SPA argues that, even if Appellant's waiver of appeal was invalid, his appeal must ultimately fail because he did not preserve his only claim of error for appeal. I agree. At the conclusion of the plea proceeding, the trial court invited the parties to address the court, and both parties did. For its part, the State explicitly identified the many felony convictions that had been referenced in its Rule 404(b) notice, even though no evidence of any of those prior convictions had been introduced into evidence. The prosecutor informed the trial court that, prior to the offenses to which Appellant was pleading guilty, Appellant "had 19 criminal convictions, 10 of which were felonies. Among those are carnal abuse on the Arkansas side [of the Texarkana divide], two failures to register as a sex offender, burglary, [and] possession charges." Appellant did not object to these assertions, nor did he dispute them.8 Then, in announcing the punishment, the trial judge commented that, based upon such an extensive criminal history, he had "no doubt ... a jury would have given you 99 or life." Again, Appellant made no objection. At the conclusion of the subsequent hearing on Appellant's motion for new trial, the trial court frankly admitted that some of this criminal history had indeed factored into its assessment of Appellant's sentences. Only then did Appellant object; but, even then, he merely objected to the trial court's having considered "facts not in evidence," without identifying any source of law-constitution, statute, rule, or case law-that would prohibit such a thing.

The court of appeals treated the trial court's consideration of these prior convictions as an error of federal constitutional dimension-indeed, as constitutional error so dire as fairly to be described as "fundamental" and "structural," and therefore immune to principles of procedural default.9 In his dissenting opinion, Justice Burgess observed that any error was of strictly statutory dimension-at best, simply *501a violation of Article 37.07's procedure by which evidence is to be formally introduced, not informally presented, at the punishment phase of a non-capital trial.10 Such a trial error is ordinarily subject to the contemporaneous objection requirement of Rule 33.1(a) of the Texas Rules of Appellate Procedure.11 Here, a timely objection could have prevented the trial court from considering prior convictions that had not been formally introduced into evidence. Appellant was certainly in a position to object to the prosecutor's allusion to those priors, and was put on notice that the trial court might be taking them into account both by the prosecutor's reference to them and by the trial court's subsequent comment regarding how a jury might have responded in view of that extensive criminal history. But he did not object. I would hold that this constituted a failure to preserve the issue for appeal,12 and resolve this case based on the SPA's fourth ground for review. Such a resolution would obviate any potential need to remand the cause for further consideration.

The Court correctly reverses the court of appeals's judgment, and with that decision I concur. To the extent that the Court needlessly remands the cause to the court of appeals, I respectfully dissent.

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 made through four separate indictments.... We reach the same result in the other three cases, released today in separate opinions under cause numbers 06-15-00171-CR, 06-15-00172-CR, and 06-15-00173-CR.").

2

It is undisputed that the State did not admit evidence of any of the convictions it alleged in its 404(b) notice letter at Appellant's plea and sentencing hearing.

3

With regard to Appellant's claim that he had been denied an impartial judge in violation of due process, the court of appeals held that the trial court's reliance upon extrajudicial sources during punishment was sufficient to show bias and deprivation of due process. *Id.* at 379. Accordingly, the court of appeals affirmed the convictions but reversed the cases on punishment, remanding for a new punishment hearing. *Id.* at 385-86.

4

The issues, as enumerated 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 recommended sentence invalid because the defendant could not know that an error would occur at the punishment 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 punishment?

> 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 time on appeal?

5

Tex. Code Crim. Proc. art. 44.02.

6

Tex. Code Crim. Proc. 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.*

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.

17

*Id.* at 798.

18

*Id.* at 796.

19

*Id.* at 799.

20

*Id.* at 798.

21

*Id.* at 799.

22

*Id.*

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 must 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.

30

*See**Washington v. State* , 363 S.W.3d 589, 590, nn.2-3 (Tex. Crim. App. 2012) (per curiam) (noting that the record must confirm that the State gave consideration for the defendant's waiver; specifically comparing 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 abandonment of an enhancement, pursuant to a plea agreement. 488 S.W.3d 801, 808 (Tex Crim. App. 2016).

32

*Broadway* , 301 S.W.3d at 699.

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.

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).

1

484 S.W.2d 925, 927 (Tex. Crim. App. 1972).

2

*Griffin v. State* , 145 S.W.3d 645, 646 (Tex. Crim. App. 2004).

3

*Id* .

4

*Id* . at 646-49.

5

*See**id.* at 646.

6

*Harrelson v. State* , 692 S.W.2d 659, 660 (Tex. Crim. App. 1985).

7

In *Griffin* , we held that the proviso also applied to jurisdictional claims. 145 S.W.3d at 648-49.

8

*Jack v. State* , 871 S.W.2d 741, 744 (Tex. Crim. App. 1994).

9

8 S.W.3d 656 (Tex. Crim. App. 2000).

10

*Jacobson v. State* , 398 S.W.3d 195, 202 n.28 (Tex. Crim. App. 2013) (noting abrogation of *Helms* by *Young* ); *Young* , 8 S.W.3d at 666 ("As we have said, the *Helms* Rule is not justified by its premises or its precedents. It has operated to deny the full benefit of the pre-trial hearing which was authorized in 1965. Largely abrogated by an act of the legislature, its continued existence is fundamentally at odds with the public policy that is expressed in that act: to increase efficiency and decrease costs by encouraging conditional pleas of guilty and discouraging trials that have only the purpose of preserving the ability to appeal issues that were fully resolved before the trial. This Court agrees with this policy. The *Helms* Rule shall no longer be enforced in the terms in which it was stated in 1972.").

11

*Young* , 8 S.W.3d at 667. *See also**Rankin v. State* , 46 S.W.3d 899, 901-02 (Tex. Crim. App. 2001) ; *Monreal v. State* , 99 S.W.3d 615, 619 (Tex. Crim. App. 2003).

12

*See* Court's op., *infra* .

1

*Ex parte Delaney* , 207 S.W.3d 794 (Tex. Crim. App. 2006) ; *Ex parte Broadway* , 301 S.W.3d 694 (Tex. Crim. App. 2009).

2

*Rankin v. State* , 46 S.W.3d 899 (Tex. Crim. App. 2001) ; *Young v. State* , 8 S.W.3d 656 (Tex. Crim. App. 2000).

3

*Carson v. State* , 515 S.W.3d 372, 382 n.9 (Tex. App.-Texarkana 2017).

4

*See**Delaney* , 207 S.W.3d at 798 ("When the punishment that may be assessed if guilt is adjudicated is not certain, the validity of a pretrial waiver of appeals is in question because the waiver cannot be knowing and intelligent when potential errors cannot be anticipated and the consequences of the waiver are unknown."); *Washington v. State* , 363 S.W.3d 589, 590-91 (Tex. Crim. App. 2012) (Keller, P.J., concurring) (recognizing that "the rationale for holding the waiver [of appeal] to be involuntary in *Delaney* was 'the concern that unanticipated errors may occur at the punishment phase of trial' ") (quoting *Delaney* , 207 S.W.3d at 799 ); *Ex parte Reedy* , 282 S.W.3d 492, 496-98 (Tex. Crim. App. 2009) (discussing the state of the law with respect to the validity of waivers of appeal prior to *Broadway* , and observing that a defendant's waiver of appeal will be "knowing" only when he is "in a position to know the nature of the claims he could have brought on appeal but for his waiver").

5

*See**Broadway* , 301 S.W.3d at 697 ("A key component to our analysis in *Delaney* was that the waiver of appeal was not the result of a bargain."); *Delaney* , 207 S.W.3d at 798 ("When a presentencing waiver of appeal was not bargained for in exchange for an agreed upon sentence, concerns as to the validity of the waiver are raised."); *Jones v. State* , 488 S.W.3d 801, 807 (Tex. Crim. App. 2016) ("[W]e conclude that the documents in the record here are adequate to show that appellant's waiver of his right of appeal was a part of his plea agreement and that he received consideration for it.").

6

*See* SPA's Brief on the Merits at 15 (arguing that the Court has "shift[ed] its focus from what the defendant was told to what he knew he did not know[,]" citing *Ex parte Palmberg* , 491 S.W.3d 804, 809 (Tex. Crim. App. 2016), in which we held that a defendant's waiver of his trial rights may be knowingly and intelligently waived "as long as he has a sufficient awareness of his circumstances-including an awareness that some facts simply remain unknown to him or are undetermined as of the time of the plea").

7

*Id.* at 34 (arguing that "*Defendants do not need protection from themselves* "). *See**McCoy v. Louisiana* , 138 S. Ct. 1500, 1508 (2018) ("Just as a defendant may steadfastly refuse to plead guilty in the face of overwhelming evidence against her, or reject the assistance of legal counsel despite the defendant's own inexperience and lack of professional qualifications, so may she insist on maintaining her innocence at the guilt phase of a capital trial.").

8

We have often observed that courts are permitted to accept an attorney's statements on the record as true if they are unopposed. *Thieleman v. State* , 187 S.W.3d 455, 457 (Tex. Crim. App. 2005) ; *Pitts v. State* , 916 S.W.2d 507, 510 (Tex. Crim. App. 1996) ; *Emerson v. State* , 820 S.W.2d 802, 804 (Tex. Crim. App. 1991).

9

*Carson* , 515 S.W.3d at 378-82. The court of appeals majority seemed to consider a constitutional error that is "structural" to mean that it is not subject to principles of procedural default. But to say that a federal constitutional error is "structural" speaks to whether it is subject to harmless error analysis, *not* whether it may be expressly waived or forfeited by inaction. *See**Mendez v. State* , 138 S.W.3d 334, 339-40 (Tex. Crim. App. 2004) (distinguishing "structural" defects, which are not subject to a harm analysis, from "systemic" prohibitions or requirements, in contemplation of *Marin v. State* , 851 S.W.2d 275 (Tex. Crim. App. 1993), which are not subject to procedural default); *Proenza v. State* , 541 S.W.3d 786, 791 (Tex. Crim. App. 2017) ("[W]e have previously stressed the importance of keeping questions of preservation and harm distinct from one another.") (citing *Mendez* , 138 S.W.3d at 339 ).

10

*Carson* , 515 S.W.3d at 392-402 (Burgess, J., dissenting); Tex. Code Crim. Proc . art. 37.07 § 3(a)(1).

11

Tex. R. App. P. 33.1(a).

12

It is true that Appellant did eventually raise an objection at the conclusion of the hearing on his motion for new trial. A trial court may *grant* a motion for new trial on the basis of a trial error that was not preserved at the trial itself, "if that error is sufficiently serious that it has affected the defendant's substantial rights." *Herndon v. State* , 215 S.W.3d 901, 910 (Tex. Crim. App. 2007). "If the trial court *denies* a motion for new trial, however, the defendant, as the losing party, must have preserved that same error before he may claim it as a basis for reversing the trial judge once he moves into the appellate court." *Id.* at 909. *See* George E. Dix & John M. Schmolesky, 43A Texas Practice: Criminal Practice and Procedure § 50:17, at 645 (3d ed. 2011) ("If the trial court denies a motion for new trial that raised unpreserved appellate claims, the appellate court lacks the authority to grant relief on the basis of the claims that could have been granted by the trial court.").