1. “Is a waiver of the right to appeal following a plea of guilty without a recommended sentence invalid because the defendant could not know that an error would occur at the punishment phase?”
2. “Is the State’s waiver of its right to a jury trial adequate consideration to uphold a defendant’s waiver in the face of potential future errors and uncertain punishment?”
3. “Does the classification of an error affect the validity of an appellant’s waiver of his right to appeal?”
4. “May the trial court’s unobjected-to consideration of facts not in evidence be raised for the first time on appeal?”
Carson pleaded guilty without a sentencing recommendation to three counts of assault on a public servant (enhanced by two prior felonies). He waived his right to appeal prior to sentencing in exchange for the State’s waiver of its right to a jury trial; the prosecutor would not have waived it otherwise. The State’s sentencing argument focused on Carson’s extensive criminal history, citing 19 criminal convictions including 10 felonies. Unfortunately, the State had not offered any evidence of those convictions and the trial court never ordered a pre-sentence investigation. Still, defense counsel did not object to this argument or when the trial court used its prediction of what a jury would do with Carson’s criminal history as a benchmark and sentenced him to 50 years on each assault.
At a hearing on Carson’s motion for new trial, the trial court explained which extraneous convictions contributed to Carson’s punishment. The motion was denied, and Carson appealed despite a certification saying he had no right to. Considering the waiver, the court of appeals held that 1) “a defendant has an absolute right to an impartial judge,” 2) the trial court’s “reliance on an extrajudicial source is sufficient to show bias,” and 3) the resulting violation of Carson’s “fundamental rights” required resentencing. It alternatively held that Carson’s waiver was invalid for lack of consideration because the State’s waiver of jury trial was worthless.
The State raises multiple issues. First, it asks the Court to reconcile its plea cases and hold that a waiver that is voluntary/intelligent/knowing is valid even without consideration for it. Second, and related, because an open plea cannot take place without the State’s agreement, every such plea bargain is supported by consideration. Third, the State argues that the lower court’s holding that “structural”/“fundamental” errors that arose after the plea invalidated Carson’s waiver is inconsistent with the rule that a valid plea waives or forfeits the right to appeal a claim of error when the judgment of guilt was rendered independent of, and is not supported by, the error. See Young v. State, 8 S.W.3d 656, 667 (Tex. Crim. App. 2000). Fourth, the State asks whether consideration of convictions not entered into evidence is the sort of error that defies preservation requirements; invalidating a waiver of appeal with a forfeited complaint would be bizarre.
