Bushnell v. State

975 S.W.2d 641, 1998 WL 161426
CourtCourt of Appeals of Texas
DecidedSeptember 16, 1998
Docket14-96-00821-CR
StatusPublished
Cited by45 cases

This text of 975 S.W.2d 641 (Bushnell v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bushnell v. State, 975 S.W.2d 641, 1998 WL 161426 (Tex. Ct. App. 1998).

Opinions

OPINION

HUDSON, Justice.

Appellant, Robert Vincent Bushnell, III, was convicted by a jury of the offense of robbery. His punishment was assessed at confinement in the Institutional Division of the Texas Department of Criminal Justice for a term of five years and a $150 fine. In one point of error, Bushnell contends the trial court erred in overruling his motion for instructed verdict. The State requests that the appeal be dismissed because Bushnell waived his right to appeal. We agree.

Bushnell elected to have the jury assess his punishment, and after the jury returned a guilty verdict, the court took a short recess to prepare the punishment charge. Before the trial resumed, however, the parties reached an agreement regarding punishment. Bushnell waived his right to a jury and asked the court to assess punishment in accordance with the agreement he had worked out with the State. The prosecutor outlined the agreement for the court, Bushnell confirmed the terms of the agreement, [642]*642and the court imposed punishment in accordance therewith:

MS. WEBB [State’s attorney]: In exchange for the defense’s agreement not to appeal, the State recommends probation, five years, fine, 350 hours of community service and random urinalysis throughout the term of probation, $150 fine.
THE COURT: How many community service hours?
MS. WEBB: 350.
THE COURT: Okay. Then — was that your agreement, Mr. Bushnell?
THE DEFENDANT: Yes, ma'am, it was.
THE COURT: You understand when I follow that agreement you’re not going to be able to appeal this cause?
DEFENDANT: Yes, ma'am.
THE COURT: Then, Mr. Bushnell, the jury having found you guilty of robbery, it now becomes my duty, because you’ve elected to have me go forward with it, to assess the punishment in this case, and I will assess your punishment at five years in the Institutional Division to be probated for five years, $150 fine, 350 hours of community service, random urinalysis and $50 to Crime Stoppers.
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Anything further, Mr. Hennigan?
MR HENNIGAN [appellant’s attorney]: Nothing, your Honor.
MS. WEBB: Nothing further from the State, Judge.

At this point, the jury was released.

Bushnell contends that his waiver of appeal is not binding for two reasons. First, he argues the trial court did not follow the punishment agreement because it added a $50.00 payment to Crime Stoppers. We do not believe this alters the agreement in a manner that would keep appellant from knowingly, voluntarily and intelligently waiving his right of appeal. First, the additional payment to Crime Stoppers does not constitute a meaningful departure from the agreement. See Washington v. McSpadden, 676 S.W.2d 420 (Tex.Crim.App.1984) (recognizing that a trial judge has discretion to add conditions to the sentence agreed to in a plea bargain); Grodis v. State, 921 S.W.2d 502, 504-05 (Tex.App.—Fort Worth 1996, pet. ref'd) (imposing a condition of counseling upheld). “Because a trial court retains continuing jurisdiction over a defendant’s probation, it has almost unlimited authority as a matter of law to alter or modify any conditions of probation during the probationary period.” Stevens v. State, 938 S.W.2d 517, 520 (Tex. App.-Fort Worth 1997, pet. ref'd). Even if the Crime Stoppers payment violated the terms of the agreement, we note that appellant made no objection to the condition nor did he seek to withdraw from the agreement.1

Bushnell also relies on Ex Parte Thomas, 545 S.W.2d 469 (Tex.Crim.App. 1977). In Thomas, the Court of Criminal Appeals held that an agreement to waive the right to appeal entered after judgment of conviction but before sentencing is not binding on the defendant.2 However, if the rule in Thomas is still viable, we find it has no application under the facts presented here.

The Thomas rationale had its genesis at a time when there was no statutory mechanism permitting negotiated pleas. While prosecutors and defense attorneys frequently made plea bargain agreements, a defendant could not withdraw his plea if the trial court refused to follow the prosecutor’s recommendation. See Cruz v. State, 530 S.W.2d 817, 821 (Tex.Crim.App.1975). Moreover, the court could not accept a plea of guilty if it was influenced “by any consideration of fear, or by any persuasion, or delusive hope of par[643]*643don, prompting him to confess his guilt.”3 Thus, the existence of the plea bargain was often hidden from the trial judge out of concern that knowledge of the agreement might be considered an improper inducement and nix the deal.4

Once the defendant entered his plea, he was beyond the "point of no return” and could only hope the trial court would find the State’s recommendation agreeable. To enhance his chances of receiving favorable treatment by the trial judge, the defendant would often waive any future right to appeal.5 The defendant in Ex parte Dickey, signed a sworn instrument prior to entering his plea which waived the right to trial by jury, the appearance, confrontation and cross-examination of witnesses, and said that he “knew of and waived his right to file a motion for new trial or in arrest of judgment, as well as his right to appeal his conviction to the Texas Court of Criminal Appeals.” 543 S.W.2d 99, 100 (Tex.Crim.App.1976), overruled by Ex parte Hogan, 556 S.W.2d 352 (Tex.Crim.App.1977). The court remanded the cause to the trial court to conduct an evidentiary hearing on whether the waiver was knowingly and intelligently made, but expressed its general disapproval of such waivers for the following reasons:

... the procedure of requiring a defendant to waive the right of appeal prior to trial should be condemned. At this point the right has not yet matured, the defendant has no way of knowing with certainty the punishment that will be assessed and cannot anticipate the errors that may occur during the trial. Surely a waiver of appeal under such circumstances cannot be knowingly and intelligently made. Under such procedure the waiver of the right of appeal, as well as waiver of motion for new trial, etc., becomes an integral part of the plea bargaining procedure, and the defendant is put in the position of fearing that if he does not waive such rights it may affect the punishment assessed or result in a denial of his motion for probation, if any.

Dickey, 543 S.W.2d at 101.

Relying upon Dickey, the defendant in Bailey v. State

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Bluebook (online)
975 S.W.2d 641, 1998 WL 161426, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bushnell-v-state-texapp-1998.