EX PARTE EWTON v. << (2023)

This case requires us to decide whether Applicant's attorney's failure to file a notice of appeal deprived Applicant of an appeal, not whether that appeal would ultimately be successful. The Court concludes that Applicant's counsel rendered ineffective assistance in failing to file a notice of appeal and I join the Court's order granting Applicant an out of time appeal. Counsel's failure deprived Applicant of a proceeding he desired, and under Garza v. Idaho, he is entitled to that appeal regardless of whether Applicant validly waived his right to appeal.¹ Though the focus on Applicant's waiver is ultimately a distraction from the actual issue before us, I would make a few observations in response to the State's arguments in this regard.

First, Applicant's general waiver of appeal executed prior to sentencing cannot act as a valid non-negotiated waiver because it was not knowing or intelligent. As we held in Ex parte Delaney, a defendant cannot knowingly or intelligently waive an appeal of the sentencing portion of a hearing revoking deferred adjudication probation prior to the actual sentencing hearing.² So, to the extent that the State seeks to argue that Applicant's waiver was a general, non-negotiated waiver, that argument must fail because it was executed prior to the sentencing hearing in this case.

Second, Applicant did not enter into a plea bargain that deprived him of his right to appeal.³ In Jones v. State, we clarified that a negotiated waiver of an appeal as part of an open plea does not amount to a plea bargain that forecloses the ability to appeal under Rule 25.2 of the Rules of Appellate Procedure.⁴ This is because in the case of an open plea, the trial court does not follow a set punishment recommendation from the State. In this case, Applicant pleaded true to the allegations in the State's motion to adjudicate without an agreed sentence. Applicant did not enter into a plea bargain that deprived him of his ability to appeal the sentencing at the hearing on the motion to adjudicate his deferred adjudication community supervision.

Third, I do not believe the record established that Applicant negotiated a waiver of his right to appeal in exchange for his plea of true. The State's abandonment of the new offense allegation contained in the motion to adjudicate appears on a document dated five months before the plea itself. Characterizing that abandonment notation as “undated” doesn't establish when it was made or that it was made in exchange for Applicant's plea. But even assuming it was made in exchange for Applicant's plea, I question whether it constitutes consideration for Applicant's plea of true given that any finding on that allegation would not have prevented the State from proceeding with a prosecution of Applicant for that new offense.⁵ It may have been part of an agreement, but the record does not establish that it was. And regardless, prejudice is still presumed when an attorney fails to file a desired notice of appeal even when a defendant has signed a waiver of appeal.⁶

Ordinarily, I might suggest a remand for further record development on Applicant's writ, but, as mentioned above, the question in this case is not whether Applicant's waiver of appeal was valid. The question is whether counsel failed to file Applicant's notice of appeal despite Applicant's expressed desire to appeal. The record establishes this constitutional violation. And had Applicant been given the appeal he desired, the court of appeals would have been responsible for sorting out whether Applicant waived his appeal.⁷ Placing Applicant back in the position he would have been had he been given the opportunity to appeal allows Applicant the proceeding he was deprived of to play out as it should have.⁸ However limited Applicant's right to appeal might have been, it still included the right to have a court of appeals determine whether he had waived that right to appeal.⁹ Applicant's victory in this regard may be a pyrrhic one, but it is one he is nonetheless entitled to.

With these thoughts I join the Court's order granting habeas corpus relief.

The Court grants Applicant relief in the form of an out-of-time appeal. I write to clarify the extent of relief to which I believe Applicant is entitled.

The record reflects, and the habeas court finds, the following. Applicant pled guilty in exchange for deferred adjudication. On May 8, 2015, the State filed a motion to adjudicate guilt alleging that Applicant violated the conditions of community supervision.¹ Two weeks later, on May 22, 2015, the State amended its motion by adding an allegation that Applicant unlawfully escaped from custody while confined in the Harris County jail.² Five months later, on October 22, 2015, the trial court initiated proceedings on the motion to adjudicate.³ Before the proceedings began, Applicant signed a stipulation of evidence where he pled true to the allegations and waived appeal.⁴ As part of the stipulation of evidence, the State attached its first amended motion to adjudicate guilt, reflecting that the State abandoned the paragraph that alleged the escape offense.⁵

Applicant received consideration for his waiver of appeal in the form of the State abandoning an allegation that he committed the new offense of escape.⁶ Because the State gave consideration for Applicant's waiver of appeal, the waiver is valid. But, under Garza v. Idaho, Applicant has the right to have his attorney file a notice of appeal, even if that appeal would ultimately be dismissed.⁷

The fact that Applicant has a right to have a notice of appeal filed does not mean that he has a right to appeal. Applicant has no right to appeal because he waived that right and the State gave consideration for the waiver. When the Court's opinion gives Applicant the right to file an out-of-time appeal, it may sound like he has a right to appeal. If that is the case, I cannot agree because the waiver is valid. Applicant has the right to file a notice of appeal, but the court of appeals should dismiss the appeal because of the waiver.

FOOTNOTES

1.   Garza v. Idaho, ––– U.S. ––––, 139 S.Ct. 738, 747, 203 L.Ed.2d 77 (2019).

2.   Ex parte Delaney, 207 S.W.3d 794, 798-99 (Tex. Crim. App. 2006) (“simply knowing the range of punishment for the offense is not enough to make the consequences of a waiver known with certainty, because it still does not allay the concern that unanticipated errors may occur at the punishment phase of trial”).

3.   See Tex. R. App. P. 25.2(a)(2).

4.   Jones v. State, 488 S.W.3d 801, 808 (Tex. Crim. App. 2016) (recognizing the case was “not a plea-bargain case because there was no agreed punishment recommendation” that would deprive the defendant of his ability to appeal and holding instead that the defendant had negotiated a waiver of his appeal); see also Dears v. State, 154 S.W.3d 610, 613 (Tex. Crim. App. 2005) (holding that Rule 25.2 of the Rules of Appellate Procedure apply only to plea bargains with regard to guilty pleas, not pleas of true on revocation motions).

5.   State v. Waters, 560 S.W.3d 651, 663 (Tex. Crim. App. 2018) (“a subsequent criminal prosecution is not barred following a trial judge's finding of ‘not true’ at a revocation hearing”). Additionally, the abandonment of the allegation would not have prevented the State from introducing evidence of the new law violation to justify the maximum sentence that Applicant ultimately received. The State's decision to abandon the allegation is not on par with the State's consent to a waiver of a jury trial that authorizes a judge to assess punishment. See, e.g., Ex parte Broadway, 301 S.W.3d 694, 698 (Tex. Crim. App. 2009). Neither is it on par with the State's abandonment of an enhancement allegation that changes the range of punishment. See, e.g., Jones, 488 S.W.3d at 807.

6.   Garza, 139 S.Ct. at 749 (“Accordingly where, as here, an attorney performed deficiently in failing to file a notice of appeal despite the defendant's express instructions, prejudice is presumed ‘with no further showing from the defendant on the merits of his underlying claims.’ ”).

7.   See, e.g., Dears, 154 S.W.3d at 615 (holding a court of appeals is obligated to review the record to ascertain whether a certification that an appeal has been waived is correct).

8.   Garza, 139 S.Ct. at 749 (noting that presuming prejudice based upon ineffective assistance of counsel for the failure to file a requested notice of appeal “does no more than restore the status quo that existed before counsel's deficient performance forfeited the appeal, and it allows an appellate court to consider the appeal as that court otherwise would have done on—direct review, and assisted by counsel's briefing”).

9.   See Id.

1.   Findings of Fact and Conclusions of Law, paragraph 17 (“F/F 17”).

2.   F/F 19.

3.   F/F 20.

4.   F/F 21.

5.   F/F 22.

6.   State's Exhibit 1 at the adjudication hearing held on October 22, 2015 is a stipulation of evidence. It includes a copy of part of the second motion to adjudicate that was filed on May 22, with the allegation of the new offense crossed out, and the undated notation “State abandons. ADA Stayon.” The date at the bottom of the exhibit is May 22, 2015, but that is just the date the motion to adjudicate was filed, not the date of the abandonment. If May 22, 2015, were the date of the abandonment, it would mean that the State filed the new motion to adjudicate and abandoned the allegation on the same day. Applicant has not suggested that that happened and it is obvious from the record that it did not.

7.   ––– U.S. ––––, 139 S. Ct. 738, 749-50, 203 L.Ed.2d 77 (2019).

Newell, J., filed a concurring opinion in which Hervey, Richardson and Walker, JJ., joined.