                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana

         _________________________

              No. 06-12-00019-CR
        ______________________________


           KENNETH FARIS, Appellant

                         V.

         THE STATE OF TEXAS, Appellee



    On Appeal from the 3rd Judicial District Court
             Anderson County, Texas
               Trial Court No. 29316




    Before Morriss, C.J., Carter and Moseley, JJ.
   Memorandum Opinion by Chief Justice Morriss
                                       MEMORANDUM OPINION

        After an Anderson County1 jury returned its verdict that Kenneth Faris was guilty of

indecency with a child by contact, see TEX. PENAL CODE ANN. § 21.11(a)(1) (West 2011), Faris

and the State reached an agreement whereby Faris would waive his right to appeal the jury’s

finding of guilt in exchange for the State’s agreement not to argue for prison time for Faris. As a

result, the State recommended community supervision, and the jury assessed a sentence of two

years, probated. The trial court sentenced Faris accordingly. Faris now appeals, alleging trial

court error in submitting an early Allen2 charge to the jury during the guilt/innocence phase of

trial and regarding the State’s efforts to gain admission of certain evidence at all phases of trial.

Because Faris’ waiver of a right to appeal the verdict of guilt is enforceable and no error was

preserved regarding the admission of evidence during the punishment phase of trial, we affirm

the trial court’s judgment.

        As a threshold issue, Faris claims that his waiver of the right to appeal was not

enforceable, both because the State did not give consideration and because his waiver was not

made voluntarily. We disagree.

        A criminal defendant in Texas has a statutory right to appeal his or her conviction. TEX.

CODE CRIM. PROC. ANN. art. 44.02 (West 2006); see also Ex parte Broadway, 301 S.W.3d 694,


1
 Originally appealed to the Twelfth Court of Appeals, this case was transferred to this Court by the Texas Supreme
Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001 (West 2005). We are
unaware of any conflict between precedent of the Twelfth Court of Appeals and that of this Court on any relevant
issue. See TEX. R. APP. P. 41.3.
2
 This supplemental charge sometimes given to jury that declares itself deadlocked is also called a “dynamite”
charge. See Allen v. United States, 164 U.S. 492 (1896).

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697 (Tex. Crim. App. 2009). A defendant may, however, waive this right, if the waiver is

executed voluntarily, knowingly, and intelligently. Broadway, 301 S.W.3d at 697 (citing TEX.

CODE CRIM. PROC. ANN. art. 1.14 (West 2005); Monreal v. State, 99 S.W.3d 615, 617 (Tex.

Crim. App. 2003)). If some consideration is given by the State in exchange for such a waiver of

appeal, that waiver will be upheld. Broadway, 301 S.W.3d at 697–98 (consideration in form of

State’s consent to defendant’s waiver of jury trial).

       Here, the waiver occurred after Faris had the necessary knowledge of the facts, and the

State delivered the promised consideration.       In closing argument on punishment, the State

declined to ask the jury to sentence Faris to prison time. Instead, the State recommended

community supervision of whatever sentence the jury assessed. That is sufficient consideration.

Blanco v. State, 18 S.W.3d 218 (Tex. Crim. App. 2000).

       In Blanco, after the jury returned its verdict of guilt, Blanco waived his right to appeal in

exchange for the State’s agreement to recommend a sentence of sixteen years. The State so

recommended, the trial court sentenced Blanco to sixteen years, and the Texas Court of Criminal

Appeals found “no valid or compelling reason why appellant should not be held to his bargain.”

Id. at 220. We can find no meaningful distinction between Blanco and the case before us. As in

Blanco, Faris waived his right to appeal following the jury’s verdict. The State made the

recommendation as agreed. After the jury had returned its verdict of guilt, Faris would have had

knowledge of any potentially appealable issues from the guilt phase of trial, yet agreed to waive,

appealing any such issues in exchange for the State’s community supervision recommendation.



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A defendant’s waiver of the right to appeal his or her conviction will be found to have been made

knowingly and intelligently only

        under circumstances in which, and to the extent that, he is aware of what has
        occurred in the trial proceedings. Only then is he in a position to know the nature
        of the claims he could have brought on appeal but for his waiver.

Ex parte Reedy, 282 S.W.3d 492, 495 (Tex. Crim. App. 2009). When Faris made the agreement

with the State to waive his right to appeal, he was in a position to know of any complaints he

could lodge on appeal about his trial to that point. Therefore, he knowingly and intelligently

made his waiver. There is no reason presented why Faris should not be held to his bargain.

        Faris argues that, under the circumstances, the State’s bare recommendation of a probated

sentence does not constitute consideration.3 He points to closing argument, where the State told

the jury that the range of punishment was “from two to twenty years in prison or probation.”

Faris takes this statement, plus the State’s request that all evidence adduced during the

guilt/innocence phase be admitted as punishment evidence, to mean that the State offered no

consideration. Faris seems to suggest that, because the State told the jury of the correct range of

punishment and also offered evidence for the punishment phase, it sought a prison term and not

the probated sentence which was part of the bargain. However, immediately after advising the

jury of the range of punishment, the prosecutor also argued to the jury:

        You can recommend anywhere from probation up to twenty years in prison. The
        State can though make a recommendation. In this case, the State -- due to the


3
 The prosecutor’s recommendation is not binding on the trial court. TEX. CODE CRIM. PROC. ANN. art. 26.13(a)(2)
(West Supp. 2012). As Faris elected to have the jury assess punishment, the prosecutor’s recommendation was
likewise not binding on the jury. See generally TEX. CODE CRIM. PROC. ANN. art. 37.07, § 2 (West Supp. 2012).


                                                      4
        length of the time that’s pasted4 [sic], and the nature of the events, we would
        recommend probation.

Faris points out that, before the jury returned and as the waiver and agreement were being

described to the trial court, the prosecutor said, “[T]he State [would] do nothing to try and sway

that jury.” The State would recommend a probated sentence, but the prosecutor acknowledged,

        [T]he jury is -- perfectly within the jury’s rights to come back and give him time.
        We’re not going to try and do anything to influence the jury towards that. We are
        going to do everything we can to make a probation argument, but if that jury
        comes back with a time --

Faris’ attorney responded, “And we understand that the jury is not bound by our stipulation of

recommendation.” Faris himself confirmed to the trial court that he was agreeing to waive his

right to appeal the guilty verdict regardless of the jury’s punishment recommendation.

        As for the State’s request that evidence from the first phase of trial be admitted as

punishment evidence,5 we simply note that admitting some evidence was not a breach of the

parties’ agreement and did not undermine the State’s promise to recommend community

supervision. The State offered no new evidence at punishment, and rested immediately after

stipulating that Faris had no prior felony convictions and offering the guilt/innocence evidence.

We disagree with Faris that the State’s description of the range of punishment and reoffer of

evidence show any lack of agreement or consideration. The State gave up its right to argue to

the jury for a prison sentence—consideration for Faris’ waiver of his right to appeal the guilty



4
  The victim testified the abusive touching occurred when she was about thirteen years old, and she was twenty-five
at the time of trial.
5
  There is no requirement that evidence admitted at the guilt/innocence phase must be reoffered before it can be
considered at punishment. Trevino v. State, 100 S.W.3d 232, 238 (Tex. Crim. App. 2003) (per curiam).

                                                        5
verdict. Because consideration was given in exchange for the waiver, we find the waiver to be

enforceable.

       Faris also argues that his “waiver of appeal amounts to an involuntary plea.” In support

of this argument, he cites cases addressing pleas of guilty and ineffective assistance of counsel.

Faris did not plead guilty; thus, his citations to Cooper v. State, 45 S.W.3d 77 (Tex. Crim. App.

2001), and Hill v. Lockhart, 474 U.S. 52 (1985), are inapposite here. Also inapposite is Roe v.

Flores-Ortega, 528 U.S. 470 (2000), which stands for the proposition that the standards of

Strickland v. Washington, 466 U.S. 668 (1984), must be satisfied by a defendant who claims

counsel was ineffective for failing to file a notice of appeal. Faris has not presented a claim of

ineffective assistance of counsel.

       The trial judge directly questioned Faris about his agreement to waive the right to appeal.

Faris stated he understood the agreement, wished to enter it, had not been forced or coerced, and

would not be able to appeal regardless of the punishment assessed by the jury. Faris voluntarily

made the waiver. See Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998) (per

curiam) (proper admonishment of defendant creates prima facie showing plea made knowingly

and voluntarily); Lopez v. State, 25 S.W.3d 926, 928 (Tex. App.—Houston [1st Dist.] 2000, no

pet.) (totality of circumstances considered in evaluating voluntariness of plea; presumption of

regularity in judgment and proceedings).

       Because Faris knowingly and willingly waived his right to appeal the guilty verdict after

consideration was given by the State, the waiver is enforceable. We, therefore, decline to

address Faris’ substantive complaints regarding the guilt/innocence phase of trial. To the extent

                                                6
Faris complains about the admission of evidence during the punishment phase of trial—his sole

complaint regarding the punishment phase—no error has been preserved, since no objection was

made to the readmission of guilt-phase evidence.

       We affirm the judgment of the trial court.




                                            Josh R. Morriss, III
                                            Chief Justice

Date Submitted:       September 11, 2012
Date Decided:         September 26, 2012

Do Not Publish




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