           IN THE COURT OF CRIMINAL APPEALS
                       OF TEXAS
                             NOS. AP-76,059 & AP-76,060



             EX PARTE TERRENCE LADON BROADWAY, Applicant



             ON APPLICATIONS FOR WRITS OF HABEAS CORPUS
                        FROM DALLAS COUNTY



      M EYERS, J., delivered the opinion of the Court in which K ELLER, P.J.,
K EASLER, H ERVEY, H OLCOMB, and C OCHRAN, JJ., joined. W OMACK, J., filed a
concurring opinion in which J OHNSON, J., joined. P RICE, J., concurred in the result.


                                      OPINION

       Applicant, Terrence Ladon Broadway, pled guilty to the charges of delivery of a

controlled substance and retaliation. He chose to enter an open plea after declining the

State’s plea-bargain offer. The judge assessed punishment at 25 years’ imprisonment. In

his applications for writs of habeas corpus, Applicant alleged ineffective assistance of

counsel on two grounds: (1) that his counsel failed to inform him of his right to appeal his

sentence and (2) that his counsel allowed him to sign a waiver of appeal before he was
                                                                            Broadway–Page 2

sentenced. In response, one of his attorneys filed an affidavit stating that Applicant

waived his right to appeal to induce the State to consent to the waiver of a jury trial. We

filed and set this case for submission to determine whether a defendant can voluntarily

waive his entire appeal as a part of a plea, even when sentencing is not agreed upon,

where consideration is given by the State for that waiver. We answer that question in the

affirmative and deny relief on Applicant’s writs.

I.     Facts

       Applicant was charged with delivery of a controlled substance, a second-degree

felony, and retaliation, a third-degree felony. T EX. H EALTH & S AFETY C ODE A NN. §

481.112; T EX. P ENAL C ODE A NN. § 36.06. Both indictments were enhanced by two prior

convictions, which raised the minimum punishment to 25 years’ imprisonment in each

case. T EX. P ENAL C ODE A NN. § 12.42.

       Before Applicant entered his plea, the judge reviewed the options available to him:

“Jury trial or you could take a plea bargain, which is a minimum of 25 years in prison or

do an open plea which [would] allow me to consider giving some kind of drug treatment

on probation.” 1 Applicant declined the plea-bargain offer and chose to enter an open plea

with the hope that the judge would place him on deferred-adjudication community

supervision with drug treatment. In order to secure the judge’s ability to consider


       1
        The record consistently refers to “probation.” However, Article 42.12 of the Code of
Criminal Procedure uses the term “community supervision.” CODE CRIM . PROC. ANN . art. 42.12.
Previous cases have used the terms interchangeably. See Ex parte Insall, 224 S.W.3d 213, 214
(Tex. Crim. App. 2007).
                                                                               Broadway–Page 3

deferred-adjudication community supervision with drug treatment, Applicant waived his

right to a jury trial. C ODE C RIM. P ROC. A NN. art. 1.13. Applicant pled guilty to both

charges and true to the enhancement paragraphs relating to his prior convictions. At

sentencing, after reminding Applicant that no plea bargain existed, the judge assessed

punishment at 25 years’ imprisonment, the minimum punishment.

       In his applications for writs of habeas corpus, Applicant alleged ineffective

assistance of counsel on the grounds that his attorneys failed to inform him of his right to

appeal his sentence and that they allowed him to sign a waiver of appeal before being

sentenced. In response, one attorney filed an affidavit stating that Applicant “waived his

right of appeal in order to induce the [S]tate to waive its right to force a jury trial in order

that he could ask the court to give him deferred adjudication probation with drug

treatment.” 2 The trial court entered findings of fact and conclusions of law, concluding

that “counsel was not ineffective for failing to file a notice of appeal because Applicant

had knowingly and voluntarily waived his right to appeal prior to entering his guilty

plea.” 3 The trial court recommended that relief be denied. We filed and set this case for




       2
        Though Applicant admits in his applications that he signed a waiver of appeal, his plea
agreement form, signed on October 16, 2006, bears his mark next to the paragraph that reads, “I
understand that I have a right to appeal to the Court of Appeals.”
       3
        At first glance, Applicant’s decision to enter an open plea and waive his right to appeal
appears odd because the primary advantage to entering an open plea is a relatively unlimited right
to appeal. TEX . R. APP . P. 25.2(a). In contrast, in a plea-bargain case, the Rules of Appellate
Procedure impose restrictions on a defendant’s right to appeal. Id. Clearly, Applicant found an
open plea more appealing than the State’s plea-bargain offer, even without its primary benefit.
                                                                                Broadway–Page 4

submission to determine whether a defendant can voluntarily waive his entire appeal as a

part of a plea, even when sentencing is not agreed upon, where consideration is given by

the State for that waiver. Ex parte Broadway, Nos. AP-76,059 & AP-76,060, 2008 Tex.

Crim. App. LEXIS 935 (Tex. Crim. App. Dec. 17, 2008) (not designated for publication).

II.    Analysis

       A defendant in any criminal action has the right of appeal.4 C ODE C RIM. P ROC.

A NN. art. 44.02. However, a “defendant in a criminal prosecution for any offense may

waive any rights secured him by law.” 5 C ODE C RIM. P ROC. A NN. art. 1.14. A waiver of

the right to appeal made voluntarily, knowingly, and intelligently will prevent a defendant

from appealing without the consent of the trial court. Monreal v. State, 99 S.W.3d 615,

617 (Tex. Crim. App. 2003). So, the question becomes whether Applicant voluntarily,

knowingly, and intelligently waived his right to appeal. Id.

       In Ex parte Delaney, 207 S.W.3d 794, 795-96 (Tex. Crim. App. 2006), the

defendant chose a similar procedural strategy; he pled guilty without an agreed

recommended sentence, waived his right to appeal, and waived his right to a jury trial.6



       4
        However, in a plea-bargain case, a defendant may appeal only those matters that were
raised by a written motion filed and ruled on before trial, or after getting the trial court’s
permission to appeal. TEX . R. APP . P. 25.2(a).
       5
         Note that the Code of Criminal Procedure restricts a defendant’s ability to waive the
right of trial by jury in a capital felony case. CODE CRIM . PROC. ANN . art. 1.14.
       6
        The court placed the defendant on deferred-adjudication probation, but the defendant
violated the terms of his community supervision. Delaney, 207 S.W.3d at 796. Ultimately, the
court assessed punishment at confinement for life and a fine of $10,000. Id.
                                                                               Broadway–Page 5

The issue considered by this Court was whether the waiver of the right to appeal was

made voluntarily, knowingly, and intelligently given the following circumstances: (1) the

defendant signed the waiver before final adjudication and sentencing; (2) the waiver was

not bargained for; and, (3) punishment was uncertain when the waiver was signed, but the

range of punishment for the offense was known. Id. at 796. We held that a pre-trial or

pre-sentencing waiver of the right to appeal is not voluntary, knowing, and intelligent

when the consequences of the waiver are not known with certainty. Id. at 799. For two

reasons, we distinguish the present case from Delaney and conclude that Applicant

waived his right to appeal voluntarily, knowingly, and intelligently.

A.     Applicant’s waiver was the result of a bargain.

       A key component to our analysis in Delaney was that the waiver of appeal was not

the result of a bargain.7 Id. at 798. However, there was a bargain in Applicant’s case

because the State gave consideration for Applicant’s waiver of appeal. It was not a plea

bargain; Applicant rejected the plea bargain offered by the State and chose to enter an

open plea.8 But a bargain of a different sort originated from Applicant’s decision to


       7
        Delaney emphasizes the absence of a bargain, but only considers agreed recommended
sentences to the exclusion of other bargaining possibilities: “When a presentencing waiver of
appeal was not bargained for in exchange for an agreed upon sentence, concerns as to the validity
of the waiver are raised.” Delaney, 207 S.W.3d at 798. Though there was no plea bargain and
no agreed recommended sentence, Delaney possibly involved a different bargain, such as the one
agreed to by Applicant: the defendant waiving his right to appeal in exchange for the State
consenting to the waiver of a jury trial.
       8
        Applicant’s plea agreement form documents his choice of an open plea over a plea
bargain. Specifically, his plea was open as to community supervision with drug treatment. There
                                                                            Broadway–Page 6

waive his right to a jury in order to ensure that the judge would be able to consider

deferred-adjudication community supervision with drug treatment. Under the Code of

Criminal Procedure, a defendant may not unilaterally waive the right to a jury trial–the

court and the State must consent to the waiver. C ODE C RIM. P ROC. A NN. art. 1.13. The

trial court found that the State did not want to consent to Applicant’s waiver of a jury

trial. Therefore, Applicant induced the State to consent by waiving his right to appeal.

This constituted a bargain and distances Applicant’s case from our holding in Delaney.

B.     Applicant knew the consequences of his waiver.

       In Delaney, we concluded that the defendant’s waiver of appeal was not made

voluntarily, knowingly, and intelligently because the consequences of the waiver were not

“known with certainty.” Delaney, 207 S.W.3d at 799. Though it was not a plea-bargain

case, our opinion endorsed a plea agreement that identified the actual punishment or

maximum punishment; but, we stated, “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.” Id. Two questions emerge regarding these guidelines for

determining certainty.

       First, what is the significant difference between a plea agreement that establishes a

maximum punishment and a plea agreement that establishes a range of punishment? Why



is no agreed sentence indicated.
                                                                              Broadway–Page 7

is the former acceptable and the latter unacceptable when stating the maximum

punishment merely delineates one boundary of the possible range? It does not make

sense that adding a reference to the minimum sentence in a plea agreement would make

an otherwise valid waiver invalid just because the maximum has a corresponding

minimum.

       Second, it is problematic to say that Delaney’s recommended plea agreement, one

which states the actual or maximum punishment, will always produce a valid waiver. The

danger in that guarantee is that a judge who proceeds to final adjudication of guilt after

the revocation of community supervision need not assess punishment in accordance with

any plea agreement. Von Schounmacher v. State, 5 S.W.3d 221, 223 (Tex. Crim. App.

1999). The only restrictions on the judge at that point are the relevant statutory limits. Id.

So, unless the plea agreement simply reports the statutory limits for punishment, it will

not accurately reflect the punishment that could be assessed if guilt is adjudicated. The

only thing “certain” is that the judge can assess any punishment statutorily permitted.9

       The other point to be made with regard to the known consequences of waiver is

that certainty as to punishment cannot be expected when a defendant opts to decline a



       9
         This is not the first time we have veered from Delaney’s standard for certainty with
regard to the consequences of a waiver. In Insall, we remarked, “Under the reasoning of
Delaney, applicant’s waiver of his right to seek habeas relief was involuntary or not ‘knowingly
and intelligently made’ because the plea agreement contained only the range of punishment and
not a certain punishment to be imposed if guilt was adjudicated.” Insall, 224 S.W.3d 213 at 215.
However, in that case, we determined that the applicant was nevertheless aware of the
consequences of his waiver. Id.
                                                                               Broadway–Page 8

plea bargain. In this case, Applicant chose to enter an open plea. The fundamental nature

of an open plea is uncertainty. If Applicant had agreed to a plea bargain, he would have

obtained the benefits provided by Article 26.13, namely an announcement from the judge

before any finding on the plea as to whether the court would follow or reject the

agreement and the opportunity to withdraw the plea if the court rejected the agreement.10

C ODE C RIM. P ROC. A NN. art. 26.13.

III.   Conclusion

       In conclusion, we agree with the trial court that Applicant voluntarily, knowingly,

and intelligently waived his right to appeal. We deny Applicant relief and hold that a

defendant may knowingly and intelligently waive his entire appeal as a part of a plea,

even when sentencing is not agreed upon, where consideration is given by the State for

that waiver.

                                                                           Meyers, J.

Delivered: December 16, 2009

Publish



       10
          We note that a plea bargain will not continue to protect a defendant who receives
deferred-adjudication community supervision if the court proceeds to adjudication at a later date.
If a defendant violates the terms of the deferred-adjudication community supervision, the court
will no longer be limited by the procedures of Article 26.13, which require that the judge
sentence in accordance with the plea agreement or allow the defendant to withdraw the plea. Von
Schounmacher, 5 S.W.3d at 223 (holding that “regardless of whether the deferred adjudication
was part of a plea bargain, recommended by the prosecution, imposed by the trial court without
objection by the appellant, or granted under other circumstances, once the trial court proceeds to
adjudication, it is restricted in the sentence it imposes only by the relevant statutory limits”).
