You’ll Get a Jury and Like It!

“I want a hamburger…no, a cheeseburger.”

“Spalding!”

Although every criminal defendant is innocent until proven guilty and has the absolute right to a trial on the merits, there are times when it is in the defendant’s best interest to plead guilty.  Sometimes, that is the best advice I can give.  In these times, our goal is to mitigate the sentence.  However, if you can believe it, the State does not always offer a fair an acceptable plea bargain on sentencing.  In these cases, one of the options is for the defendant is to plead open (i.e. without the protection of a deal) to the court.  This is a tactical choice.  Some cases are better for a judge and others for a jury. But in Texas it is not exactly the defendant’s choice.

In my Marine Corps days, operating under the military justice system, an accused has the right to sentencing by a jury or by judge alone.  It is the defendant’s choice alone and no one can interfere with that choice.  Seems fair enough, right?

In Texas, however, if a defendant wants to plead guilty and waive his right to a jury, thereby allowing the judge to impose the sentence, the State (i.e. the prosecution) has to consent to it.  If the judge allows a defendant to plead guilty and waive his right to a jury trial without the State’s consent, the judge risks a mandamus action directing him to vacate the judgments.

That is exactly what happened in Travis County in the case of State v. Gonzales (In Re Escamilla).

As the appellate court noted:

Article 1.13 of the code of criminal procedure provides that, other than in a capital felony case in which the State will seek the death penalty, a criminal defendant may enter a plea and waive his right to a jury trial as long as the waiver is made "in person by the defendant in writing in open court with the consent and approval of the court, and the attorney representing the state." Tex. Code Crim. Proc. Ann. art. 1.13(a).

The 3rd District Court of Appeals (Austin), in a memorandum opinion, granted mandamus relief and directed the trial court to vacate its judgment. Now they’ll have to see what a jury thinks of the case.

Stop the Shilly-Shallying

In a felony DWI case, (Gaal, v. State) the defendant was set to plead guilty. When the time came for him to plead, however, he refused. The trial judge stated, “All right. We’re supposed to have a plea here today. It appears that [the defendant] does not want to plea. For the record, I will not accept any plea bargain in this matter, unless it’s for the maximum term of ten years.”

The defendant later filed a motion to recuse the trial judge, contending that his statement that he would not accept a plea deal for less than the maximum, showed that he could not be fair and impartial. Another judge, at a recusal hearing, denied the request. On appeal, the 2nd District Court of Appeals (Fort Worth) held that appellant was denied due process by the trial judge’s statements and that the judge should have been recused.

The Court of Criminal Appeals now holds that the lower court got it all wrong. The CCA characterizes the trial judge’s statement not as a denial of due process.

The trial judge’s comment could quite logically and reasonably have been a short-hand rendition of a statement that it was time for the defendant to quit shilly-shallying because he has twice rejected favorable plea bargains…and was continuing to drink in violation of his bond conditions.

The CCA goes on:

A reasonable person, based on the totality of the circumstances, would translate the judge’s statements as, “I’m not going to reset this case for any more plea negotiations; we’re going to trial.”

And as the Court points out, a “defendant does not have an absolute right to enter into a plea bargain” and “the trial judge doesn’t have to take a plea bargain.”

Who Says Plea Negotiations Aren't Admissible?

Bowley v. State (CCA Opinion HERE)

It was a DWI case (enhanced to felony-level by 2 previous DWI convictions).  The defendant took the stand and explained to the jury that he pled guilty to the 2 previous cases, because he was actually guilty.  Then, on cross-examination, this was the exchange between the defendant and the prosecutor:

Q:  Okay. [Defense counsel] said that you pled guilty to all those up there because you were; is that right?
A: Yes, sir, that is correct.
Q:  You're not pleading guilty here today because you're not guilty; is that right?
A:  Right. That is correct.
Q:  Could it be that it's because we couldn't agree on a plea agreement that you preferred?

Hmm...I seem to remember a certain rule of evidence...ah, yes, Rule 410, which prohibits the admission of pleas negotiations.  The underlying rationale behind Rule 410 is to promote "free and frank" plea negotiations.  Additionally, if we face the facts, not all defendants that plead guilty are actually guilty.  Sometimes it's just easier to plead than to risk being convicted of a greater crime or awarded a stiffer sentence.

Thankfully, the Defense counsel sprung to action:

DC: Judge, I guess I will have to object on that.  That's-
Court: Sustained.
DC:  Judge, as well, let me go ahead and ask that this Court instruct the jury not to consider that in any type of deliberation, this it's simply just not a proper area for a trial, Judge.
Court:  No instruction will be given.
DC:  Judge, I guess to finish that and perfect my objection, I will ask for a mistrial.
Court:  Denied.

The defendant was later convicted of felony DWI and was sentenced to 30 years confinement as a habitual felony offender.

On direct appeal, the 7th District Court of Appeals (Amarillo) concluded that the judge erred by not giving the instruction to disregard the prosecutor's question about the plea negotiations and reversed the conviction.  The 7th Court's reasoning was that under Rule 403, the question was "higly misleading and prejudicial" and that there was a "grave risk" that the jury would make the "common sense" inference that because the defendant has negotiated for a plea, he had committed the crime.

Yesterday, however, the Court of Criminal Appeals (in a sharply divided 5-4 decision) reversed the 7th Court's decision, stating

We hold that no instruction was required because [the defendant's] testimony opened the door to the prosecutor's question.  A party who opens the door to inadmissible evidence risks the adverse consequences of having it admitted.  It was admissible for the prosecutor to cross-examine [the defendant] by questioning the circumstances surrounding his plea in this case to establish an alternatie motive for pleading not guilty - that it was the result of failed plea negotiations.

The holding is simply shocking - especially when the trial court excluded the evidence!  Although it was not clear on the appellate record whether the trial court excluded the evidence under a Rule 403 or Rule 410 analysis, if either is within the so-called "zone of reasonable disagreement" the appellate court should have upheld the trial court's ruling excluding the evidence and required a curative instruction for the jury to disregard the question.

Perhaps Judge Price, in one of the dissenting opinions got it right:

But even if the majority were right with respect to the Rule 403 issue, it grievously errs simply to affirm the judgment of the trial court without further ado. If the court of appeals was wrong about the propriety of the trial court’s ruling as a matter of Rule 403, the question remains whether the trial court’s (probable) actual ruling under Rule 410(a) was within its discretion. Because the court of appeals has never resolved this issue, the correct disposition at this juncture would be to remand the cause to the court of appeals so that it may do so. I must therefore dissent on the additional basis that the Court does not remand the cause for further proceedings in the court of appeals.  Ultimately, I rue that we ever, in our capacity as a discretionary review court, should have allowed ourselves to get embroiled in a case like this in the first place.

At least for now, the takeway from this case, is don't introduce prior guilty pleas of your client in the hope that the jury might infer that because he isn't pleading guilty to the current charge, he is actually not guilty. Wow, a lot of double negative in that sentence, but you understand what I mean.

Two other dissenting opinions were also submitted by Judges Johnson and Holcomb.

A Waste of the Appellate Court's Time, Perhaps?

Yesterday, the 7th District Court of Appeals (Amarillo) reported Lawrence v. Texas (yes, a different Lawrence), wherein the appellant, who had been convicted in accordance with his pleas, complained on appeal that the trial judge failed to admonish him of the possibility of deportation if he was not a United States citizen. The problem is...He is a citizen! Born in Texas!

Okay, it is true that under article 26.13(a)(4) of the Texas Code of Criminal Procedure, the trial court must make such an admonishment and that it was technically error for him omit a required warning. But come on! This is the kind of stuff that make lawyers look bad.

Having known Justice Quinn in law school, I can only imagine what he thought of this ridiculous argument. I'm sure his patience was thin when counsel presented this issue during oral argument. In his opinion, which is quite flip (not even 4 pages), Justice Quinn spends only one paragraph dismissing the claim:

Regarding the failure to admonish about deportation, the omission is harmless if the record shows that the defendant is a United States citizen and, therefore, not subject to deportation. VanNortrick v. State, 227 S.W.3d 706, 709 (Tex. Crim. App. 2007). That is the situation here. According to a pen packet admitted into evidence, appellant was born in Texas. Since Texas remains part of the United States, appellant was born a United States citizen and is not subject to deportation. Thus, this particular error was harmless.

Why did the Court designate that such an opinion be published? Could it be so that no other creative appellate defense counsel try the same argument and other justices could be saved from writing opinions on such frivolous matter? Perhaps.

Waco Man Hoping for Probation Gets 20 Years in Prison After Oversleeping Court Date

You can't make this stuff up folks.

So long as the defendant showed up to his sentencing hearing, the State was going to recommend 8 years probation and a $500 fine for his plea of guilty to burglary of a habitation, but if he failed to show, his prior plea would simply be considered and open plea to the court. The defendant overslept and the judge sentenced him to 20 years in prison (he'll be eligible for parole in 5).

See the entire article HERE.

Post-Trial Motions are NOT Self-Proving

For any new defense attorneys who may be reading this post, the following case is a must read.

Rouse v. State is a case about a defense attorney who improperly advised his client that if he did not like the sentence imposed by the judge during the sentencing phase of his guilty plea, he could simply withdraw his plea. The client was apparently led to believe that if he pled guilty (without a plea bargain), he would receive probation only. When the judge informed Appellant that he believed 10 years was an appropriate punishment (oddly, the judge seemed to be offering some kind of sua sponte plea bargain), Appellant tried to withdraw his plea, but the judge would not allow it. After Appellant was sentenced to 12 years TDC, his defense attorney (waiting until the last day to file his notice of appeal or motion for a new trial) faxed an unsworn document entitled "Motion for Appeal" to the court coordinator alleging that the defendant's plea should be withdrawn because of the incorrect legal advice that was provided to him.

On direct appeal, the 3rd District Court of Appeals relied on the unsworn affidavit to determine that Appellant's guilty plea was involuntary (Read lower court opinion here). On State's petition for discretionary review the Texas Court of Criminal Appeals considered whether the lower court erred by relying on unsworn allegations made by trial counsel in a document that was faxed to the court coordinator (when no fact-finder has evaluated the statement) to determine that a guilty plea was involuntary.  Relying on precedent from Lamb v. State, 680 S.W.2d 11 (Tex.Cr.App. 1984), the CCA reversed the lower court decision, stating:

"We decide that the court of appeals erred to rely on the allegations in the 'Motion for Appeal' because post-trial motions such as these are not self-proving and any allegations made in support of them by way of affidavit or otherwise must be offered into evidence at a hearing. This rule is based, in part, on permitting the non-moving party an opportunity to respond to these allegations before a conviction is reversed on their basis."

The CCA also briefly considered whether and to what extent any "plea-bargaining" by the trial court concerning appellant's punishment could have influenced appellant's decision to enter an "open" plea of guilty. The CCA dismissed this contention as being without merit because the appellant's plea was entered the day before the judge's discussion with appellant regarding sentencing.