Lloyd Gipson Carter v. State ( 2019 )

Opinion issued June 27, 2019
In The
Court of Appeals
For The
First District of Texas
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NO. 01-18-00116-CR
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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).
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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,
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“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
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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.
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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).
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