IN THE TENTH COURT OF APPEALS
No. 10-19-00436-CR
CURTIS LEWIS BROWN, Appellant v.
THE STATE OF TEXAS, Appellee
From the 19th District Court McLennan County, Texas Trial Court No. 2017-165-C1
MEMORANDUM OPINION
Curtis Lewis Brown was charged with evading arrest or detention in a vehicle.
TEX. PENAL CODE § 38.04 (b)(2)(A). Brown pled guilty, without a recommendation as to
punishment, and the trial court deferred an adjudication of guilt and placed Brown on
community supervision-deferred adjudication for five years.
A year later, Brown pled true, again without a recommendation as to punishment,
to 13 alleged violations of his community supervision-deferred adjudication. The trial
court adjudicated Brown guilty and sentenced Brown to 10 years in prison. The trial
court suspended Brown’s sentence and placed him on community supervision-probation
for 10 years. Approximately six months later, Brown’s conditions of community supervision-
probation were amended. Then, approximately 6 months after the amendment, Brown
pled true to 12 alleged violations of his community supervision-probation. The trial court
revoked Brown’s community supervision-probation and sentenced him to nine years in
prison. Brown timely filed a motion for new trial which, after a hearing, the trial court
denied.
Because the trial court did not abuse its discretion in denying Brown’s motion for
new trial, the trial court did not commit judicial vindictiveness, Brown’s estoppel issue
was inadequately briefed, and Brown’s plea of true was not involuntary, the trial court’s
judgment is affirmed.
APPELLATE PROCEDURAL BACKGROUND
An attorney was appointed to represent Brown on appeal. The attorney filed a
brief on Brown’s behalf, raising three issues. The State filed its brief in response. While
the appeal was pending, the attorney representing Brown died. Another attorney was
appointed and given the opportunity to accept the appellant’s brief already on file with
the Court or submit a supplemental brief. New counsel chose to file a supplemental brief,
also raising three issues.
The issues in the initial brief will be referred to as “Original Issues,” and the issues
in the subsequent brief will be referred to as “Supplemental Issues.”
ORIGINAL AND SUPPLEMENTAL ISSUE ONE
In both briefs, Brown raises the same first issue: that the trial court abused its
discretion in denying Brown’s motion for new trial by denying Brown the benefit of his
“plea bargain.” We address both issues together.
Brown v. State Page 2 Motion for New Trial Standard of Review
We review a trial court's denial of a motion for new trial for an abuse of discretion,
and we will only reverse if the trial court's decision was "clearly erroneous and arbitrary."
Riley v. State, 378 S.W.3d 453, 457 (Tex. Crim. App. 2012); Horne v. State, 554 S.W.3d 809,
813 (Tex. App.—Waco 2018, pet. ref'd). We cannot substitute our own judgment for that
of the trial court and must uphold the trial court's ruling if it is within the zone of
reasonable disagreement. Riley, 378 S.W.3d at 457; Horne, 554 S.W.3d at 813. A trial court
will not generally abuse its discretion in granting a motion for new trial if the defendant:
(1) articulates a valid legal claim in his motion for new trial; (2) produces evidence or
points to evidence in the trial record that substantiated his legal claim; and (3) shows
prejudice to his substantial rights under the standards in Rule 44.2 of the Texas Rules of
Appellate Procedure. State v. Herndon, 215 S.W.3d 901, 909 (Tex. Crim. App. 2007).
Application
In both issues, Brown contends he and the State reached a plea bargain agreement
whereby Brown agreed to a term of 45 to 125 days in an Intermediate Sanction Facility
(ISF) as an amended condition of community supervision-probation. Within days of the
trial court signing the amended order which included that condition, Brown asserts he
was informed he would not be sent to ISF. Brown argues the trial court abused its
discretion in denying Brown’s motion for new trial, filed after Brown’s community
supervision-probation was ultimately revoked, because the State breached the “plea
agreement,” and, Brown’s argument continues, he should receive the benefit of the
bargain, that is, being continued on community supervision-probation and attending ISF.
We disagree with Brown.
Brown v. State Page 3 Prior to the alleged ISF agreement, the State had filed a motion to revoke Brown's
community supervision-probation. Without a hearing, but more importantly without
Brown having to plead true to any violation alleged in the motion to revoke, the trial
court signed an order amending the conditions of community supervision-probation.
Three days later, the State filed a motion to withdraw its motion to revoke which the trial
court granted.
While the amended order may have been a result of an agreement between the
State and Brown, such agreement was not a plea agreement in the traditional sense and
cannot be evaluated as such. Revocation proceedings are essentially administrative and
do not involve the same panoply of rights and considerations applicable to a formal
criminal trial. Chambers v. State, 700 S.W.2d 597, 598-99 (Tex. Crim. App. 1985), overruled
on other grounds by Reynolds v. State, 4 S.W.3d 13 (Tex. Crim. App. 1999). Further, the
agreement did not dispose of Brown’s criminal charge. See Santobello v. New York, 404
U.S. 257, 260, 92 S. Ct. 495, 498 (1971) (“The disposition of criminal charges by agreement
between the prosecutor and the accused, sometimes loosely called "plea bargaining,"…”)
(emphasis added). At most, it converted the motion to revoke to a motion to modify, and
Brown agreed to the modification. Finally, binding plea bargain agreements in
revocation proceedings have not been authorized by the legislature. Gutierrez v. State,
108 S.W.3d 304, 309-10 (Tex. Crim. App. 2003) (“in the context of revocation proceedings,
the legislature has not authorized binding plea agreements, has not required the court to
inquire as to the existence of a plea agreement or admonish the defendant pursuant to
26.13, and has not provided for withdrawal of a plea after sentencing.”). Thus, there was
no “plea bargain agreement.”
Brown v. State Page 4 Moreover, even if there was such an agreement that could be considered a binding
agreement, plea bargain or otherwise, such an agreement would, at most, only estop the
State from moving to revoke Brown's community supervision-probation on the basis that
he failed to comply with/complete ISF. It would not prevent the State from seeking
revocation on any other alleged violation, including those upon which the prior motion
to revoke was based. See Winkle v. State, 718 S.W.2d 306, 307-08 (Tex. App.—Dallas 1986,
no pet.); see also Bigham v. State, 233 S.W.3d 118, 121 (Tex. App.—Texarkana 2007, no pet.).
Accordingly, the trial court did not abuse its discretion in denying Brown’s motion
for new trial on this basis.
Brown’s original and supplemental first issues are overruled.
REMAINING ORIGINAL ISSUES
We now discuss Brown’s remaining original issues.
Vindictive Re-sentencing
Brown complains in his second original issue that the trial court committed
“judicial vindictiveness” when it revoked Brown’s community supervision-probation
and sentenced Brown to nine years in prison after it had modified Brown’s community
supervision-probation to allow Brown to attend ISF. Brown relies on Ex parte Miller, 330
S.W.3d 610 (Tex. Crim. App. 2010) and Alabama v. Smith, 490 U.S. 794, 109 S. Ct. 2201, 104
L. Ed. 2d 865 (1989) to support his issue. However, those cases do not stand for the
proposition asserted by Brown. Rather, they stand for the general proposition that a trial
court may not assess a greater punishment after a new trial following a successful appeal
without good cause. Brown has never appealed any of his judgments or modifications,
if he could have, and has not been “re-sentenced.” Further, he has not provided us with
Brown v. State Page 5 case authority that extends this proposition to a revocation proceeding, and we decline
to do so.
Accordingly, Brown’s second original issue is overruled.
Disproportionate Sentence
In his third original issue, Brown claims his nine-year sentence is grossly
disproportionate to the offense for which he was convicted, and consequently, the trial
court abused its discretion in denying Brown’s motion for new trial.
A disproportionate-sentence claim must be preserved for appellate review either
by objecting when the sentence is imposed or by raising the claim in a timely-filed motion
for new trial. TEX. R. APP. P. 33.1(a)(1); Castaneda v. State, 135 S.W.3d 719, 723 (Tex. Crim.
App. 2003) (cruel and unusual punishment claims may be waived); see Noland v. State,
264 S.W.3d 144, 151 (Tex. App.—Houston [1st Dist.] 2007, pet. ref'd) (to preserve gross
disproportionate claim, defendant must present timely and specific request, objection, or
motion). A review of the record shows that Brown did not raise his complaint at the time
the sentence was imposed or in his motion for new trial. However, he did argue the
disproportionality of the sentence, without objection by the State, at the hearing on his
motion for new trial. Consequently, we conclude that Brown has preserved this
complaint for our review. 1
When a sentence falls within the range of punishment provided by the legislature,
it is generally not grossly disproportionate to the offense committed. State v. Simpson, 488
S.W.3d 318, 323 (Tex. Crim. App. 2016). Brown’s nine-year sentence is within the
1 The State could have objected to Brown’s discussion as an untimely amendment to the motion for new trial and insisted that the trial court rule only upon the timely motion for new trial as originally filed. See State v. Moore, 225 S.W.3d 556, 570 (Tex. Crim. App. 2007). It did not. Brown v. State Page 6 statutory range of punishment for the offense for which he was convicted. See TEX. PENAL
CODE § 12.34 (punishment for third degree felony is two to ten years in prison); see also
TEX. PENAL CODE § 38.04 (b)(2)(A) (offense is a third-degree felony). However, even if a
sentence falls within the statutory punishment range, the sentence may violate the Eighth
Amendment to the United States Constitution if the sentence is grossly disproportionate
to the offense or to sentences in other similar offenses. See Solem v. Helm, 463 U.S. 277,
289-90, 103 S. Ct. 3001, 77 L. Ed. 2d 637 (1983). To determine whether a sentence for a
term of years is grossly disproportionate for a particular defendant's offense, we consider
the severity of the sentence in light of the harm caused or threatened to the victim, the
culpability of the offender, and the offender's prior adjudicated and unadjudicated
offenses. State v. Simpson, 488 S.W.3d 318, 323 (Tex. Crim. App. 2016); McGruder v.
Puckett, 954 F.2d 313, 316 (5th Cir. 1992) (noting that the Supreme Court's holding in
Harmelin v. Michigan, 501 U.S. 957, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (1991) modified the
gross-disproportionality test previously set out in Solem, 463 U.S. 277, 103 S. Ct. 3001, 77
L. Ed. 2d 637 (1983)). In the rare case in which this analysis leads to an inference of gross
disproportionality, we then compare the defendant's sentence with the sentences
received by other offenders in the same jurisdiction and with the sentences imposed for
the same crime in other jurisdictions. Graham v. Florida, 560 U.S. 48, 60, 130 S. Ct. 2011,
176 L. Ed. 2d 825 (2010). If this comparative analysis confirms that the sentence is grossly
disproportionate, the sentence is cruel and unusual. Id.
Brown was convicted of evading detention or arrest in a vehicle. He pled guilty.
Other than that information, there is nothing in the record regarding any harm, or lack
thereof, caused or threatened to any potential victim or regarding Brown’s prior
Brown v. State Page 7 adjudicated and unadjudicated offenses, if any. There was also no evidence comparing
Brown’s sentence in this case to those sentenced for the same offense to confirm gross
disproportionality. Instead, Brown presented evidence and argument that his sentence
was too harsh, not that it was unconstitutional. See State v. Simpson, 488 S.W.3d 318, 324
(Tex. Crim. App. 2016) (evidence about defendant's minimal role in the offense, age and
circumstances of the prior offenses, need for drug treatment, employment history
relevant to the trial court's punishment decision, not that sentence was unconstitutional.;
see also State v. Zalman, 400 S.W.3d 590 (Tex. Crim. App. 2013). This is not enough. See
id.
Accordingly, the trial court did not abuse its discretion in denying Brown’s motion
for new trial, and Brown’s original third issue is overruled.
REMAINING SUPPLEMENTAL ISSUES
We now discuss Brown’s remaining supplemental issues.
Estoppel
In his second supplemental issue, Brown argues the trial court erred in revoking
Brown’s community supervision-probation and consequently abused its discretion in
denying Brown’s motion for new trial because the trial court and the State were estopped
from pursuing revocation based on a new offense known by law enforcement at the time
the previous agreement to amend the conditions of community supervision-probation
was accepted. In other words, he argues estoppel applies because law enforcement’s
knowledge that Brown was arrested on a new offense was imputed to the prosecutor
which was then imputed to the trial court.
Brown provides no authority for the proposition that knowledge of a law
Brown v. State Page 8 enforcement agency is ultimately, through the State, imputed to the trial court. Thus, this
argument is improperly briefed and presents nothing for review. See TEX. R. APP. P.
38.1(i); Lucio v. State, 351 S.W.3d 878, 896 (Tex. Crim. App. 2011); see also Neville v. State,
622 S.W.3d 99, 104 (Tex. App.—Waco 2020, no pet.). Even if, for some reason, the trial
court could be estopped from revoking Brown’s community supervision-probation on
the new offense, that estoppel would not prevent the State from seeking or the trial court
from granting a revocation on any other alleged violation, including those upon which
the prior motion to revoke, which in this case was withdrawn by the State, was based.
See Winkle v. State, 718 S.W.2d 306, 307-08 (Tex. App.—Dallas 1986, no pet.); see also Bigham
v. State, 233 S.W.3d 118, 121 (Tex. App.—Texarkana 2007, no pet.). Proof of a single
violation will support revocation. Garcia v. State, 387 S.W.3d 20, 26 (Tex. Crim. App.
2012). Brown pled true to all 12 violations alleged by the State; thus, any one of those
support the trial court’s order.
Brown also argues that the trial court erred in revoking Brown’s community
supervision-probation in the face of prosecutorial misconduct. Brown provides no
authority regarding what constitutes prosecutorial misconduct or how the State
committed misconduct pursuant to those authorities. This argument is also improperly
briefed and presents noting for review. See TEX. R. APP. P. 38.1(i); Lucio v. State, 351 S.W.3d
878, 896 (Tex. Crim. App. 2011); see also Neville v. State, 622 S.W.3d 99, 104 (Tex. App.—
Waco 2020, no pet.).
Brown’s second supplemental issue is overruled.
Voluntary Plea
In this third supplemental issue, Brown contends his plea of true to the State’s
Brown v. State Page 9 motion to revoke was involuntary because he: 1) did not have sufficient awareness of the
consequence of his plea; 2) did not have sufficient awareness of the relevant
circumstances surrounding the plea; and 3) did not possess an understanding of the law
in relation to the facts.
As a matter of constitutional law, a plea of "true" to having violated a term or
condition of community supervision must be voluntarily made. See LeBlanc v. State, 768
S.W.2d 881, 882 (Tex. App.—Beaumont 1995, no pet.).2 Due process requires a guilty plea
be undertaken voluntarily, with sufficient awareness of the consequences of the plea. Ex
parte Palmberg, 491 S.W.3d 804, 807 (Tex. Crim. App. 2016). A defendant must have
sufficient awareness of the relevant circumstances and possess an understanding of the
law in relation to the facts surrounding the plea. Id.; see also Ex parte Broussard, 517 S.W.3d
814, 817 (Tex. Crim. App. 2017). To determine whether a defendant's "awareness" was
"sufficient" at the time of his plea, a reviewing court looks to whether the plea was a
voluntary and intelligent choice among the alternative courses of action open to the
defendant. Id.; State v. Guerrero, 400 S.W.3d 576, 588 (Tex. Crim. App. 2013). A defendant
need not, however, have a comprehensive awareness of the specific impact his plea may
have; sufficient awareness does not require complete knowledge of the prosecution's
case. See Palmberg, 491 S.W.3d at 807; see also Ex parte Broussard, 517 S.W.3d 814, 817 (Tex.
Crim. App. 2017).
2 The mandatory, statutory admonitions found in article 26.13 of the Code of Criminal Procedure, however, do not apply to a plea of "true" entered in a community supervision revocation proceeding. Harris v. State, 505 S.W.2d 576, 578 (Tex. Crim. App. 1974); see also Gutierrez v. State, 108 S.W.3d 304, 309-10 (Tex. Crim. App. 2003). Brown v. State Page 10 Awareness--Consequences of Plea
Brown first argues that he did not have a sufficient awareness that the consequence
of his plea would be a nine-year sentence. Brown asserts that he did not understand he
was going to be sentenced to nine years, and adamantly opposed a nine-year sentence
when he had previously been given ISF.
At the revocation hearing, the trial court initially reviewed the history of Brown’s
case, noting that in 2017, Brown pled guilty to evading arrest or detention with a vehicle
and was sentenced to 10 years in prison, probated for 10 years. When asked by the trial
court, Brown acknowledged that the State had filed a motion to revoke Brown’s
community supervision-probation, accusing him of 12 violations of the terms and
conditions of his probation. Brown also waived the reading of the motion to revoke.
When asked how he wanted to plead, Brown pled true to each violation. He denied
pleading true due to any threats or force used against him or any promises made to him.
He agreed that he understood the State would not have to do anything else to prove
Brown violated his probation. With that understanding, he continued to plead true to
each violation, and the trial court accepted his plea.
After the court accepted the plea, the State informed the court that it was
“offering” 3 nine years in prison. The trial court remarked that nine years was less than
the original sentence. Brown’s counsel understood what the offer was, but when the trial
court asked Brown if he understood that the ”agreement” 4 was nine years, Brown replied,
no. Brown immediately continued, “That’s what they want me to sign, but I ain’t signing
3 A word used by the State to describe its recommendation to the trial court.
4 A word used by the trial court to describe the State’s recommendation of nine years. Brown v. State Page 11 my life for no nine years.”
Counsel for Brown clarified with the trial court that Brown wanted to testify
regarding sentencing. After admonishments by the trial court, Brown took the stand. He
agreed with counsel that they had talked and that he wanted to ask the court to assess a
lesser punishment. Brown then explained that he had first been given ISF but then he
“got into it with somebody in the Highway 6” jail and “[y]ou all took my ISF, and they’re
wanting to give me nine years….that’s messed up.” Brown continued to express his
displeasure with ISF being taken away and nine years being “offered.” The trial court
reminded Brown, and Brown understood, that his original sentence for the offense was
10 years and that the State was recommending a year less than what the trial court was
going to give him. Brown was still not pleased with either option.
Brown argues that because the discussion about the sentence and his questions
about ISF occurred after his entry of his plea of true, his plea was involuntary. We
disagree with Brown. The record reflects that Brown knew the State alleged violations of
his probation, pled true to those violations, and was not forced, threatened, or promised
anything to plead true. He knew his initial sentence was for 10 years, and he knew the
State was now recommending nine years. He was not surprised at the State’s
recommendation: “That's what they want me to sign, but I ain't signing my life for no
nine years.” He was allowed to testify in order to complain about the recommendation
and inquire about why he could not complete ISF. Simply because Brown did not like
the State’s recommendation and did not want the 10 years he was initially sentenced to
does not mean he did not understand the consequences of his plea.
Brown v. State Page 12 Awareness--Relevant Circumstances
Brown next argues that he did not have sufficient awareness of the circumstances
surrounding his plea because he believed he was receiving ISF or was only asking
questions regarding why he did not receive ISF. In his brief, Brown presents and relies
on a quoted portion of an exchange between Brown and the trial court to support his
argument:
THE DEFENDANT: So what was the reason for my ISF to get took?. . .
THE COURT: Well, what did you think I was going to do to you?
THE DEFENDANT: I didn't know. I just want to understand why they took ISF 90 days to turn into years, though.
This quoted portion does not support Brown’s argument.
We first note that Brown’s quote is a misrepresentation of the exchange between
Brown and the trial court because, with an ellipses, Brown omits 16 lines in the record
between Brown’s question and the trial court’s answer. The following passage is the
actual exchange:
THE DEFENDANT: So what was the reason for my ISF to get took?
THE COURT: Look, I don't know anything about ISF. I don't do -- I don't do plea bargaining. When I got your violation report and I read all of this, I'm the one -- well, first, your -- your plea bargain agreement called for you to do ten years TDC. That was the agreement. You understand that?
THE DEFENDANT: Yeah, I understand that --
THE COURT: Well --
THE DEFENDANT: -- and it just --
THE COURT: -- and they're offering --they're offering you a year less than what I was going to do and what -- and what your plea bargain agreement called for.
Brown v. State Page 13 THE DEFENDANT: It's funny that I'm in the 19th District, and it's 2019, the 9th month and the 9th day, and they want to give me nine years and play with me.
THE COURT: Well, what did you think I was going to do to you?
THE DEFENDANT: I didn't know. I just want to understand why they took ISF 90 days to turn into years, though.
THE COURT: That's not the question to ask me
The trial court’s question, “what did you think I was going to do to you,” was in response
to Brown’s comment that “they want to give me nine years and play with me.” It was
not in response to Brown’s question about why ISF was taken away from him.
We also note that the three lines quoted by Brown are taken out of context in the
sentencing portion of the revocation hearing. The full exchange between the quoted
question and the quoted answer was just a part of Brown’s testimony/conversation with
the trial court on sentencing. And after reviewing the entire hearing, the record does not
show that Brown believed he was there to receive ISF or to only get answers as to why he
did not receive ISF.
Accordingly, Brown had sufficient awareness of the circumstances surrounding
his plea.
Understanding—Law in relation to Facts Surrounding Plea
Brown further asserts his plea was involuntary because he did not understand that
by pleading true, he waived the right to have the State prove the allegations against him.
This particular voluntariness factor concerns knowledge of the State’s case, meaning the
evidence against Brown, not whether Brown knew the State did not have to prove its case
once Brown pled true. See Ex parte Broussard, 517 S.W.3d 814, 818 (Tex. Crim. App. 2017)
(“The correct standard is ‘whether [the defendant] was aware of sufficient facts— Brown v. State Page 14 including an awareness that there are or may be facts that he does not yet know—to make
an informed and voluntary plea.’ If a known fact changes after the plea—for example, a
key witness dies—the defendant is not entitled to withdraw his plea. In the same way, if
a known unknown is discovered to be different than the defendant estimated, it does not
necessarily entitle him to relief from his agreement with the State because his estimation
turned out to be wrong.”).
But even if Brown’s alleged lack of understanding that the State did not have to
prove its case after Brown pled true would be considered in a voluntariness review,
Brown was warned before the court accepted Brown’s plea that the State would not have
to prove anything once Brown pled true. Brown acknowledged he understood and still
wanted to plead true. Simply because Brown found out later during sentencing that the
State would not have to prove Brown participated in an incident that occurred at the jail,
an incident that was not one of the 12 violations to which Brown pled true, did not make
his plea involuntary.
Conclusion
After reviewing the record, and because Brown's necessary awareness and
understanding were sufficient at the time of his plea, we find Brown’s plea was voluntary.
His third supplemental issue is overruled.
Having overruled each original and supplemental issue raised in this appeal, we
affirm the trial court’s judgment.
TOM GRAY Chief Justice Brown v. State Page 15 Before Chief Justice Gray, Justice Johnson, and Justice Smith Affirmed Opinion delivered and filed March 16, 2022 Do not publish [CR25]
Brown v. State Page 16