            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                        NO. PD-0685-11



                        BILLIE DEAN WASHINGTON, Appellant

                                                 v.

                                   THE STATE OF TEXAS

           ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
                   FROM THE FIRST COURT OF APPEALS
                            HARRIS COUNTY

                K ELLER, P.J., filed a concurring opinion.


       The State sought to revoke appellant’s deferred-adjudication probation on a sexual assault

offense because appellant had committed the new offense of failure to register as a sex offender. The

new failure-to-register case and the adjudication in the sexual assault case were tried at the same

hearing. In the new case, the parties reached a plea agreement in which appellant would plead guilty

in exchange for a two-year sentence. Because appellant’s failure-to-register offense was a state-jail

felony,1 two years was the maximum sentence of imprisonment. He could have been fined up to



       1
           See TEX . CODE CRIM . PROC. arts. 62.101(b), 62.102(b)(1) (West 2010).
                                                          WASHINGTON CONCURRENCE— 2

$10,000, but he received no fine.2 Had the record shown that both cases were part of a single plea

agreement, appellant’s waiver of his right to appeal on the adjudication case would have been valid.

       But the record appears to show the contrary. The trial judge said, “On the new case based

on your plea of guilty and on the papers that you filed, I will find you guilty, I will follow the plea

bargain. When I do that, you give up your right to appeal without my permission on that case.”3 The

trial judge asked appellant if he understood that, appellant said yes, and then the trial judge asked

what appellant had to say. Appellant gave an explanation for his conduct and answered a question

about his health from his attorney. Then the trial judge said:

       Mr. Washington, my only regret in this situation is that I did not give you life in
       prison. I’m going to sentence you to 20 years confinement. I’m going to find you
       guilty. I hope you die in prison. You raped your granddaughter for years and you’re
       a monster, so I’m glad you’re in prison. I hope you never get out.

       So, the record seems to show that the parties had an agreement in the new case and that

appellant was throwing himself on the mercy of the court in the adjudication case. At the least, the

record is not clear that appellant obtained any consideration for his plea of true in the adjudication

case. Although Delaney involved a waiver of appeal at the original guilty plea, before adjudication

was deferred, rather than at the adjudication hearing,4 the rationale for holding the waiver to be

involuntary in Delaney was “the concern that unanticipated errors may occur at the punishment phase

of trial.”5 The same concern exists here. I therefore agree with the Court that the rationale in



       2
           TEX . PENAL CODE § 12.35(a) (West 2010).
       3
           Emphasis mine.
       4
           Ex parte Delaney, 207 S.W.3d 794, 795 (Tex. Crim. App. 2006).
       5
           Id. at 799.
                                                       WASHINGTON CONCURRENCE— 3

Delaney applies in this case and that appellant’s waiver was invalid.

       I join the Court’s opinion.

Filed: April 4, 2012
Publish
