Lloyd Gipson Carter v. State

• Court: Court of Appeals of Texas
• Decided: June 27, 2019
• Docket: 01-18-00116-CR
• Status: Published

Opinion

Opinion issued June 27, 2019

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-18-00116-CR ——————————— LLOYD GIPSON CARTER, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 176th District Court Harris County, Texas Trial Court Case No. 1488008

MEMORANDUM OPINION Without an agreed punishment recommendation from the State, appellant,

Lloyd Gipson Carter, pleaded guilty to murder. The State agreed to consent to

Carter’s waiver of his right to a jury trial in exchange for Carter’s waiver of his right to appeal.1 The trial court found Carter guilty and assessed his punishment at sixty

years’ confinement, and it certified that he had waived his right of appeal. See TEX.

R. APP. P. 25.2(a)(2). Carter timely filed a notice of appeal after his motion for new

trial was denied. See TEX. R. APP. P. 26.2(a)(2).

After this Court’s abatement order for an amended certification of the right of

appeal, if necessary, the State filed a motion for rehearing and motion for rehearing

en banc of that abatement order, and appellant filed a response. We agree with the

State, withdraw the abatement order and reinstate this case, grant the State’s motions

for rehearing and to dismiss, and dismiss this appeal for want of jurisdiction. We

dismiss as moot the State’s motion for en banc reconsideration.

Background On January 13, 2016, Carter was indicted for the first-degree felony offense

of murder with the State alleging that he had intentionally and knowingly caused the

death of Dominique Carter, his ex-wife, on November 9, 2015, by shooting her with

a deadly weapon, namely, a firearm.2 On January 23, 2017, Carter, through his trial

1 Article 26.14 of the Code of Criminal Procedure “makes a jury trial on punishment the default option for a defendant who pleads guilty in a felony case.” In re State ex rel. Tharp, 393 S.W.3d 751, 754–55 (Tex. Crim. App. 2012) (citing TEX. CODE CRIM. PROC. ANN. art. 26.14). The Court of Criminal Appeals explained that, “[t]o avoid the default option, the guilty-pleading defendant must waive his right to a jury under either Article 1.13 or Article 37.07,” but “[t]o waive a jury under Article 1.13, the defendant must have the State’s consent.” Id. at 755. 2 See TEX. PENAL CODE ANN. § 19.02(b)(1), (2), (c) (West 2011).

2 counsel, filed a motion for community supervision and a notice of punishment

election to have the jury assess his punishment. Then on July 11, 2017, the last date

set for his jury trial after it had been reset three times, Carter pleaded guilty to the

first-degree felony offense of murder, without an agreed punishment

recommendation from the State, pending a pre-sentence investigation (“PSI”) report

and hearing.

At the July 11, 2017 plea hearing, the trial court gave the standard plea

admonishments to Carter to confirm that he had reviewed the plea waiver and

admonishment paperwork with his counsel and that he had signed it. The trial court

admonished Carter that, “[b]y signing these documents, you are giving up certain

constitutional rights, which would be a right to a trial by jury, a right to cross-

examine witnesses, and a right to testify or not on your own behalf,” all of which

Carter acknowledged. The trial court then stated that it would defer a finding of guilt

until the PSI hearing because there was no punishment agreement.

While Carter’s “Plea Terms,” signed on July 11, 2017, stated that his plea was

“WOAR-PSI,” which meant that it was made without an agreed recommendation

pending a PSI hearing, Carter’s plea waiver paperwork stated both that he intended

to plead guilty without an agreed recommendation pending a PSI and that the “State

waives right to jury trial in exchange for Defendant waiving right to appeal.”

Underneath that agreement on Carter’s plea waiver was the underlined phrase,

3 “Further, I waive any right of appeal which I may have should the court accept the

foregoing plea bargain agreement between myself and the prosecutor,” and Carter

signed his name below that on July 11, 2017. Moreover, Carter’s plea

admonishment paperwork also stated twice that he was waiving his right of appeal,

with both statements, “[y]ou are giving up your right to appeal” and “I waive my

right to appeal” underlined on the paperwork, which he also signed on July 11, 2017.

The trial court’s July 11, 2017 certification of Carter’s right to appeal indicated that

he waived the right to appeal. See TEX. R. APP. P. 25.2(a)(2). The trial court later

entered findings of fact and conclusions of law concluding that Carter had knowingly

and voluntarily waived his right of appeal in exchange for the State’s consent to

Carter’s waiver of his right to a jury trial.

Analysis

This case is controlled by the Court of Criminal Appeals’s decisions in Ex

parte Broadway, 301 S.W.3d 694, 697 (Tex. Crim. App. 2009) (holding that “a

defendant may knowingly and intelligently waive his entire appeal as part of a plea,

even when sentencing is not agreed upon, where consideration is given by the State

for that waiver”), and Carson v. State, 559 S.W.3d 489, 494–96 (Tex. Crim. App.

2018) (holding that record must show that State gave its consent to defendant’s

waiver of his right to jury trial “in exchange for the defendant’s waiver of his

appeal,” and if so, defendant’s “waiver was made in exchange for consideration

4 given by the State and, thus, was voluntary, knowing and intelligent.”). The record

reflects that Carter had initially elected to have the jury assess his punishment on

January 23, 2017. Then on July 11, 2017, which was the last date set for his jury

trial after it had been reset three times, Carter pleaded guilty to murder without an

agreed punishment recommendation pending a PSI hearing, but his plea paperwork

indicated that the “State waives right to jury trial in exchange for Defendant waiving

right to appeal.” The State’s consent to Carter’s waiver of his right to a jury trial

was induced by Carter’s waiver of his right of appeal, and that consideration made

his waiver of appeal voluntary, knowing, and intelligent, which was a “bargain of a

different sort” that did not involve an affirmative sentencing benefit to the defendant.

Carson, 559 S.W.3d at 494–96.

Because Carter validly waived his right of appeal, he may not appeal his

conviction. See Ex parte Broadway, 301 S.W.3d at 697; Blanco v. State, 18 S.W.3d

218, 220 (Tex. Crim. App. 2000); see, e.g., Patino v. State, No. 01-17-00310-CR,

2018 WL 4087001, at *1 (Tex. App.—Houston [1st Dist.] Aug. 28, 2018, no pet.)

(per curiam) (mem. op., not designated for publication) (dismissing appeal for want

of jurisdiction after record demonstrated that appellant had waived his right of appeal

in exchange for State’s consent to appellant’s waiver of right to jury trial).

Therefore, the record supports the trial court’s certification that Carter waived his

right of appeal. See TEX. R. APP. P. 25.2(a)(2); Dears, 154 S.W.3d at 615.

5 Conclusion Accordingly, we withdraw this Court’s July 24, 2018 abatement order and

reinstate this case, grant the State’s motions for rehearing and to dismiss, and dismiss

the appeal for want of jurisdiction. See TEX. R. APP. P. 43.2(f). We dismiss the

State’s motion for en banc reconsideration and any other motions as moot.

PER CURIAM Panel consists of Justices Keyes, Kelly, and Goodman.

Do not publish. TEX. R. APP. P. 47.2(b).