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Date: 12-13-2020
Case Style:
Ether Laver Thomas v. The State of Texas
Case Number: 01-18-00504-CR
Judge: Evelyn V. Keyes
Court: Court of Appeals
For The
First District of Texas
Plaintiff's Attorney: Jason J Bennyhoff
Brian Marcus Middleton
John J. Harrity III
Baldwin D. Chin
Defendant's Attorney:
OR
Just Call 855-853-4800 for Free Help Finding a Lawyer Help You.
Description:
Houston, Texas - Criminal defense atty represented defendant Ether Laver Thomas charged with one count of first-degree theft and one count of first-degree money laundering.
In September 2015, appellant was indicted for one count of theft of $200,000
or more and one count of money laundering of $200,000 or more, each a first-degree
felony offense at the time,
1
“pursuant to one scheme and continuing course of
1 At the time of the offenses, the Penal Code classified both theft and money
laundering as first-degree felony offenses if the value of the property stolen or value
of the funds laundered was $200,000 or more. Act of Sept. 1, 1994, 73d Leg., R.S.,
ch. 900, § 1.01, sec. 31.03, 1993 Tex. Gen. Laws 3586, 3638 (amended 2015)
(current version at TEX. PENAL CODE ANN. § 31.03(e)(7) (requiring $300,000 or
more in property stolen to constitute first-degree felony)); Act of Sept. 1, 2005, 79th
Leg., R.S., ch. 1162, § 2, sec. 34.02, 2005 Tex. Gen. Laws 3802, 3803 (amended
2015) (current version at TEX. PENAL CODE ANN. § 34.02(e)(4) (requiring $300,000
or more in funds laundered to constitute first-degree felony)).
3
conduct” between 2007 and 2014. Appellant and six co-conspirators were accused
of stealing more than $8 million from an engineering company at which one of the
co-conspirators, Andrea Davidson, was employed as an accountant. In June 2017,
the State filed a disclosure in this case stating that Davidson had been found guilty
in February 2017 of first-degree theft of more than $200,000 “for similar acts
committed during the timeframe for which [appellant] [was] indicted” and received
a twenty-eight-year prison sentence. The disclosure stated, “Davidson admitted to
committing the offense and implicated [appellant].”
In November 2017, appellant pleaded guilty to both offenses. She signed and
initialed next to each paragraph of a written guilty plea, which included the trial
court’s written admonishments, her waiver of certain statutory and constitutional
rights, stipulations, and a judicial confession. Appellant was admonished that she
was charged with two-first degree felony offenses for theft and money laundering
with a punishment range of “5 to 99 years or life and up to a $10,000 fine.” She was
also admonished that the State’s punishment recommendation, if any, was not
binding on the court and that if the court’s punishment did not exceed the State’s
recommendation agreed to by appellant, then appellant could appeal only with the
court’s permission.
Appellant waived certain statutory and constitutional rights, including the
right to trial by jury, and she “request[ed] the consent and approval of the [trial court]
4
and the attorney for the State to such waiver.” Appellant stipulated that she entered
her guilty plea to the two offenses voluntarily after fully consulting with her attorney
and having been satisfied that her attorney properly represented her. In a section
regarding a punishment recommendation by the State, the stipulation stated, “[The]
State will waive its right to a jury trial. This is an ‘open’ plea without a
recommendation.” After appellant signed her guilty plea, her trial counsel also
signed, certifying that she had consulted with appellant and advised appellant of her
rights; that appellant was mentally competent, fully understood the trial court’s
admonishments, and was fully aware of the consequences of her written guilty plea;
and that trial counsel “believe[d] this document [the guilty plea] was knowingly and
voluntarily executed by [appellant].” Finally, the attorney for the State also signed
appellant’s guilty plea, certifying the State’s consent to and approval of
“[appellant’s] waiver of trial by jury and the stipulations contained in this
document.” Appellant’s guilty plea expressly waived her right to a jury trial, but it
did not state that it waived appellant’s right to appeal.
In addition to her written guilty plea, however, appellant signed a separate
document, entitled “Defendant’s Waiver of Right to Appeal – Guilt Innocence only.”
In this document, appellant acknowledged:
that if the punishment assessed by [the trial court] does not exceed the
punishment recommended by the State and agreed to by [appellant] and
[appellant’s] attorney, [appellant] must have the permission of [the trial
5
court] before [she] may prosecute an appeal on any matter in this case,
except for those matters raised by written motions prior to trial.
Appellant “voluntarily waive[d] [her] right to file a Motion for New Trial, a Motion
in Arrest of Judgment, a Notice of Appeal, or any right to appeal that [she] may have
in this cause of action.”
Neither appellant’s written guilty plea nor her appeal waiver confirmed that
the State would recommend a punishment or stated what the recommendation would
be. Necessarily, neither included an agreement between the State and appellant and
her counsel as to what her punishment should be.
After accepting appellant’s guilty plea, the trial court issued a certificate of
appellant’s right of appeal. See TEX.R. APP. P. 25.2(a)(2) (“The trial court shall enter
a certificate of the defendant’s right of appeal each time it enters a judgment of
guilt . . . .”). The certificate checked two boxes, certifying both that appellant’s case
“is a plea-bargain case, and the defendant has no right of appeal . . . as to
guilt/innocence” and that “the defendant has waived the right of appeal as to
guilt/innocence.” This certificate of appellant’s right of appeal as to guilt/innocence
did not say anything about appellant’s having waived the right to appeal the sentence
rendered by the trial court.
At appellant’s plea hearing on November 17, 2017, the State offered into
evidence, without objection from appellant, appellant’s written guilty plea, including
the written admonishments, waiver of rights, and stipulations and judicial
6
confession; the trial court’s order accepting appellant’s guilty plea; the trial court’s
certification of appellant’s right of appeal; and appellant’s written waiver of her right
to appeal her sentence if not greater than the State’s recommendation. And, where
the printed form stated that “the attorney for the State will recommend to the Court
that my punishment be assessed at the following,” was a handwritten insertion
stating, “State will waive its right to a jury trial. This is an ‘open’ plea without a
recommendation.” The State also offered into evidence forty exhibits, consisting
primarily of banking records, without objection from appellant.
Appellant testified that she understood she was charged with two first-degree
felony offenses with a punishment range from five to ninety-nine years or life in
prison and a fine up to $10,000. Appellant pleaded guilty to both offenses during the
following colloquy:
[Trial Court]: And are you pleading guilty freely and voluntarily?
[Appellant]: Yes.
[Trial Court]: In other words, no one is forcing you to make this plea?
[Appellant]: Correct.
[Trial Court]: And I understand that there’s no plea agreement at this
time, and you’re going to be coming to the Court for
punishment. And that’s what you're asking, correct?
[Appellant]: Yes.
. . . .
7
[Trial Court]: And, ma’am, you also understand that you have the
right to have a jury trial?
[Appellant]: Yes.
[Trial Court]: And are you giving up or waiving your right to that jury
trial?
[Appellant]: Yes.
[Trial Court]: And if your case were tried to a jury, you would also
have the right to an appeal. Do you understand that?
[Appellant]: Yes.
[Trial Court]: And are you also waiving your right to that appeal?
[Appellant]: Yes.
[Trial Court]: Very well. At this time, I’m going to withhold a finding
of guilt on your part. We’re going to reset your case for
what we call a sentencing hearing.
The trial court’s order accepting appellant’s guilty plea stated that appellant
was mentally competent and was “represented by competent and effective counsel,”
that she received and fully understood the court’s admonishments, and that she
voluntarily and knowingly executed a waiver of her right to a jury trial after the court
admonished her of the consequences of her plea. The order did not mention an appeal
waiver.
In March 2018, the trial court held a sentencing hearing. The State presented
two witnesses. The first witness was the complainant, Dr. Manmohan Kalsi, who
testified that he had owned Kalsi Engineering, an engineering company, since 1978,
8
and that he hired Davidson as an accountant in 2002. Davidson would invite many
other people, including appellant, to her office at Kalsi Engineering, and Dr. Kalsi
testified that he would welcome them, so he had met appellant and had seen her at
least twice a year while Davidson worked for him from 2002 to 2014. Appellant was
never, however, employed by Kalsi Engineering or by Dr. Kalsi. The trial court
admitted into evidence a summary of financial records showing that appellant,
Davidson, and their co-conspirators stole nearly $8.5 million from Kalsi Engineering
between 2007 and 2014 and that more than $3 million was stolen by appellant alone.
The State’s second witness, M. Cardenas, an investigator in the Economic
Crimes Division of the Fort Bend County District Attorney’s Office, had prepared
summaries of appellant’s and Davidson’s banking records, which the trial court
admitted into evidence. Cardenas testified about his review of the voluminous
financial records dating from 2007 to 2014, during which time about $3 million was
deposited into appellant’s bank account and, of that amount, appellant returned
approximately $250,000 to Davidson. During that time, appellant withdrew
approximately $1.2 million in cash and spent nearly $900,000 on food, luxury items,
casinos, travel and hotels, salons, and clothing stores.
After the State rested, appellant called six witnesses. C. Garza, who was
employed by the Fort Bend County Community Supervision and Corrections
Department, testified about the risk assessment and presentence investigation report
9
that he had completed for appellant, which stated that appellant had been charged
with felony theft and sentenced to five years’ community supervision in 1982.
Appellant was also convicted of welfare fraud and sentenced to six years’
community supervision in 1997. Appellant’s remaining witnesses, including her
employer, pastor, son, and nephew, testified on her behalf.
In closing, the State argued that “Davidson took four and a half million.
[Appellant], in her own account, the account that she held on her own, $3 million,”
and stated, “you’re aware of what happened in Andrea Davidson’s case, and I think
the two of them, because they worked together in this crime, should share in that
punishment.” It argued, “So, my recommendation to the Court, if the Court would
consider it, is to match their sentences[.]” As stated above, the State’s pretrial
disclosure showed that Davidson had been found guilty of first-degree theft in
February 2017 and sentenced to twenty-eight years in prison. In her closing,
appellant’s counsel attempted to distinguish appellant’s case from that of Davidson
by referring to Davidson as “the mastermind in this case,” and defense counsel urged
the court to sentence appellant to community supervision.
After a brief recess to take the case under advisement, the trial court sentenced
appellant to twenty-eight years’ confinement, the amount for which the State had
10
argued at the hearing.
2 The trial court told appellant, “[I]t seems like you lived a
double life, one where you’re a wonderful person at home with your family,” but the
court could not “ignore the fact that [appellant] [was at the time] in [her] fifties, and
[she] [hadn’t] learned a lesson. . . . [Appellant had] been through the court system
twice, and now here [she] [was] a third time.” The trial court’s judgment stated that
appellant and the State agreed to waive a jury trial, that the trial court consented to
the waiver, and that appellant entered a plea of guilty for the two offenses. The
judgment did not state that appellant had waived her right to appeal.
The trial court’s certification of appellant’s right of appeal provided that
appellant had waived the right to appeal with a handwritten notation indicating that
she had waived her right to appeal “as to guilt/innocence.”
Appellant filed a motion for new trial, generally arguing that “the sentence
imposed was cruel and unusual, disproportionate and excessive, in violation of” the
Eighth Amendment of the United States Constitution and Article I, Section 13 of the
Texas Constitution. See U.S. CONST. amend. VIII; TEX. CONST. art. I, § 13. The trial
2 Appellant states on appeal that the trial court also assessed “restitution in the amount
of $8,472,754.15,” which the State does not dispute, referring in its brief on appeal
to “the amount of restitution owed,” but there is no evidence in the record on appeal
that the trial court assessed restitution against appellant. Although the appellate
record includes the State’s motion to include restitution in the judgment, the record
does not include an order on the motion, and the trial court’s judgment, which is
included in the record, states, “Total Amount of Restitution/Reparation: $0.00.”
11
court did not rule on appellant’s motion for new trial, and it was overruled by
operation of law. See TEX. R. APP. P. 21.8(a), (c).
This appeal followed.3 After the parties filed their briefs, we reviewed the
record and determined that the trial court’s certification of appellant’s right to
appeal, which stated both that this was a plea-bargain case and appellant had no right
of appeal and that appellant had waived her right of appeal, appeared defective. See
Dears v. State, 154 S.W.3d 610, 614 (Tex. Crim. App. 2005) (“[A]n appellate court
has the ability to examine a [trial court’s] certification [of an appellant’s right of
appeal] for defectiveness, and to use Rules 37.1 and 34.5(c) [of the Texas Rules of
Appellate Procedure] to obtain another certification, whenever appropriate.”).
We issued an order abating this appeal and remanding to the trial court for
further proceedings, stating, “There is no indication in appellant’s plea paperwork,
elsewhere in the Clerk’s Record, or anywhere in the Reporter’s Record that
[appellant’s] waiver of her right to appeal was bargained for in exchange for the
State’s consent to her waiver of a jury trial.” This was the only waiver referenced in
the trial court’s judgment and it described the waiver of the right to a jury trial as
given in exchange for a guilty plea without such a trial. See TEX. CODE CRIM. PROC.
ANN. art. 1.13 (providing defendant may not unilaterally waive right to jury trial, but
3 On appeal, appellant has not raised any issue regarding the Eighth Amendment or
Texas Constitution, and she has thus waived these issues.
12
trial court and State must consent); Carson v. State, 559 S.W.3d 489, 494–96 (Tex.
Crim. App. 2018) (holding that record must show State consented to defendant’s
waiver of right to jury trial “in exchange for the defendant’s waiver of his appeal”
and that defendant’s waiver “was made in exchange for consideration given by the
State and, thus, was voluntary, knowing and intelligent”); see also Dears, 154
S.W.3d at 615 (“At the time of the appellate court’s ruling in this case, it had before
it the clerk’s record, which reflected that Dears had a right to appeal. Therefore, the
Court of Appeals was obligated to review that record in ascertaining whether the
certifications were defective. The certifications state that these are plea bargain
cases, but the record refutes this.”).
We ordered the trial court to conduct a hearing with appellant, her counsel,
and a representative of the State and, post hearing, to issue findings of facts and
conclusions of law regarding whether the State’s consent to appellant’s jury-trial
waiver was given as consideration for appellant’s appeal waiver. See TEX. R. APP.
P. 37.1 (authorizing appellate court to make appropriate order to remedy defect in
certification of appellant’s right of appeal in criminal case), 34.5(c)(2) (authorizing
supplementation of clerk’s record if appellate court in criminal case orders trial court
to prepare and file findings of fact and conclusions of law or certification of
appellant’s right of appeal). We also ordered the trial court, if necessary, to cure any
defect by executing an amended certification of appellant’s right to appeal.
13
At the hearing on remand, appellant was represented by her appellate counsel,
D. Craig Hughes, who signed her appellate brief previously filed in this Court. Both
appellant’s trial counsel, Cheryl Coleman, and trial counsel for the State, Assistant
District Attorney Abdul Farukhi, testified at the hearing. The court admitted into
evidence appellant’s written guilty plea and appeal waiver, as well as an affidavit
from Coleman.
Farukhi testified that he recalled negotiating a guilty plea with Coleman, but
that they could not agree on a sentencing recommendation. He could not recall any
specific conversation with Coleman about waiving appellant’s right of appeal.
Farukhi admitted that he handwrote, in the section of appellant’s plea paperwork
about the State’s punishment recommendation, that the “State will waive its right to
a jury trial. This is an ‘open’ plea without a recommendation.” Based on his review
of his handwritten words in appellant’s guilty plea, Farukhi testified that the State
had consented to appellant’s waiver of a jury trial in exchange for appellant’s appeal
waiver and that the State would not have consented to appellant’s jury-trial waiver
if appellant had not also waived her right of appeal. On cross-examination, Farukhi
agreed that appellant’s written guilty plea did not specifically say that the State
waived its right to a jury trial in exchange for appellant’s appeal waiver, and he
conceded that he could have added it. He also agreed that he could have added
language to the certificate of appellant’s right to appeal showing the consideration
14
provided by the State in exchange for appellant’s appeal waiver. He further agreed
that the State received a benefit from appellant’s plea of guilty to two serious felony
offenses in exchange for her jury-trial waiver, although he maintained that appellant
had bargained for her waiver of her right of appeal.
Coleman also testified at the hearing on remand. She denied discussing an
appeal waiver with the State in appellant’s case. Coleman asserted a claim of
attorney-client privilege regarding her communications with appellant, prompting
the trial court to ask Hughes, appellant’s appellate counsel, if “there [has] been an
ineffective assistance claim,” to which Hughes answered “No.” The trial court
stated, “I don’t believe that there is a writ or anything of that sort alleging ineffective
assistance or anything accusatory that would invoke [attorney-client] privilege,” to
which Hughes responded, “There’s not a writ[.]” The State, referring to appellant’s
brief on appeal, countered that appellant “does raise peripherally an ineffective
assistance of counsel claim for poor attorney advice,” to which Hughes responded,
“I would say poor attorney advice does not rise to the level of an ineffective
assistance of counsel.” Appellant, who was present at the hearing, did not contravene
her counsel or waive attorney-client privilege.
In closing, the State offered no argument but instead deferred to the trial court.
After the hearing, appellant, through her appellate counsel, Hughes, filed proposed
findings of fact and conclusions of law with the trial court, which the court adopted
15
in their entirety in a written order. The trial court’s findings of fact and conclusions
of law included the following:
I. Findings of Fact
. . . .
3. [The State] and [appellant’s counsel] were unable to reach an
agreement on a number of years to be reflected in an agreed
sentence recommendation.
. . . .
5. [The State] and [appellant’s counsel] agreed that the judge in the
trial court . . . would assess the punishment if [appellant] agreed
to plead guilty.
. . . .
7. State’s Exhibit No. 1 does not specifically state that the State will
waive its right to a jury trial in exchange for [appellant’s] waiver
of her right to appeal.
. . . .
10. Mr. Farukhi admitted that with regard to [appellant’s] waiver of
her right to appeal in exchange for the State waiving a jury trial,
such consideration would be expressly noted in the paperwork.
However, he admitted[,] “There’s no quid pro quo written in that
way on [the] paperwork.”
11. The Court’s Certification of Defendant’s Right to an Appeal
(State’s Exhibit No. 2) provides that [appellant] has waived the
right to appeal with the handwritten notation indicating that
[appellant] has waived her right to appeal “as to guilt/innocence.”
12. There is no language provided or written into the subject
Certification of Defendant’s Right of Appeal concerning any
exchange for the State’s consent to [appellant’s] waiver of her
right to a jury trial.
16
. . . .
15. Assistant District Attorney Farukhi’s testimony is undisputed
that with respect to [appellant’s] Waiver of Right to Appeal
(Defendant’s Exhibit No. 1), it provides no express and clear
language of a quid pro quo expressly written in the document
indicating that [appellant] waived her right to appeal in
consideration for the State’s consent to her jury waiver.
16. There was no direct evidence presented to the Court that [the
State] and [appellant’s counsel] ever engaged in a colloquy or
conversation concerning [appellant’s] right to appeal and the
waiver thereof.
. . . .
18. There were no discussions between [appellant’s counsel] and
[the State] about consideration related to [appellant’s] waiver of
her right to appeal.
19. The Court’s Certification of Defendant’s Right to Appeal
(State’s Exhibit No. 2) indicates that “[appellant] has no right to
appeal as to guilt or innocence.”
20. [Appellant’s counsel] had no discussion or conversation with
[appellant] that she was waiving her right to appeal in exchange
for anything being offered by the State.
. . . .
25. [Coleman’s] affidavit provides that “I agree with the [Court of
Appeals’] order of abatement [in this case], that the record and
plea paperwork did not indicate that [appellant’s] waiver of her
right to appeal was bargained for, as there was no negotiation
with the [State] regarding any consideration that was to be given
by the State in exchange for such waiver.”
26. [Coleman’s] affidavit also provides that “After reviewing my
notes and the documents referenced above, I can say pretty
definitively that there was no negotiation whatsoever regarding
17
whether [appellant’s] waiver was given in exchange for a waiver
by the State.”
27. [Coleman’s] affidavit finally provides, “At the time, the State’s
waiver of a jury trial was given in consideration for [appellant’s]
agreement to plead guilty to two felony offenses, which is clearly
supported by the record.”
28. In the Written Stipulation and Judicial Confession, which is part
of [appellant’s] Plea of Guilty or Nolo Contendere, [appellant]
initialed the statement that “the attorney for the State will
recommend to the Court that my punishment be assessed at the
following,” next to which was handwritten in a blank space,
“State will waive it[s] right to a jury trial. This is an ‘open’ plea
without a recommendation,” followed by the preprinted
statement, “I agree and accept that recommendation and have
entered into a plea-bargain agreement for such
recommendation.”
. . . .
30. In addition, [the trial court’s] Judgment states, “it appearing to
the Court that [appellant], her counsel, and the State’s attorney
have agreed in writing [in] open court to waive a jury in the trial
of this cause and to submit this cause to the Court,” and therefore
found that “there was no plea-bargaining agreement between the
[S]tate and [appellant]”; the Court made no reference to
[appellant’s] waiver of appeal.
II. Conclusions of Law
. . . .
33. There is no indication in [appellant’s] plea paperwork or
elsewhere in the Court’s record that her waiver of her right to
appeal was bargained for in exchange for the State’s consent to
her waiver of a jury trial. See TEX. CODE CRIM. PROC. ANN. art.
1.13 . . . .
34. [Appellant] did not agree upon, and the record does not
demonstrate, that the State exchanged consideration for
18
[appellant’s] waiver of her right to appeal, or as a part of an
agreement that included that waiver, but exclusively for her
agreement to plead guilty to two felony offenses. . . .
35. Given the facts and circumstances presented, [appellant] could
not have effectively waived her right to appeal, as it was not
voluntary, knowing and intelligent.
36. The record reflects that the State’s waiver of a jury trial was
given in consideration not for [appellant’s] waiver of her right to
appeal, or as part of an agreement that included that waiver, but
exclusively for [appellant’s] agreement to plead guilty to the two
felony offenses of theft and money laundering.
37. In order for [appellant] to effectively waive her right to appeal,
the State was required to give [appellant] some consideration for
her foregoing that right.
38. There was no consideration exchanged for [appellant’s] waiver
of her right to appeal.
. . . .
40. [Appellant] did not waive her right to appeal.
41. The [trial court’s] Certification of Defendant’s Right of Appeal
(State’s Exhibit No. 2) is defective and inaccurate. . . . The defect
and inaccuracies exist because [appellant’s] sentencing was not
agreed upon and, therefore, [appellant] could not effectively
waive her right to appeal and the State gave her no consideration
for that waiver. . . .
42. The [trial court] will prepare an amended trial court certification
of [appellant’s] right to appeal to correct inaccuracies, a defect
or omissions, which will be submitted to the Court of Appeals
for the First District of Texas, concluding that [appellant] does,
in fact, have the right to appeal. TEX. R. APP. P. 25.2(f), 34.5(c),
37.1.
19
The trial court signed an amended certification of appellant’s right to appeal,
stating that this case “is not a plea-bargain case, and [appellant] has the right of
appeal.” After the trial court clerk supplemented the record on appeal with the
transcript of the hearing, the trial court’s order adopting appellant’s proposed
findings of fact and conclusions of law, the trial court’s findings of fact and
conclusions of law, and the amended certification of appellant’s right of appeal, we
reinstated this appeal. Appellant did not file a reply brief, and neither party filed
supplemental briefing. See TEX. R. APP. P. 38.3, 38.7.
Waiver of Right of Appeal
We first address appellant’s right to appeal, as this is a jurisdictional matter.
The parties disagree whether appellant validly waived her right of appeal, which
raises the Court’ssubject-matter jurisdiction to decide this appeal. See Jones v. State,
488 S.W.3d 801, 808 (Tex. Crim. App. 2016). In order for the Court to assert subjectmatter jurisdiction over this appeal, the appeal must be authorized by law. See Abbott
v. State, 271 S.W.3d 694, 696–97 (Tex. Crim. App. 2008) (citing TEX. CONST. art.
V, § 6(a), TEX. CODE CRIM. PROC. ANN. art. 44.02, and TEX. R. APP. P. 25.2(a)(2)).
“Generally speaking, a criminal defendant has a statutory right to appeal.”
Carson, 559 S.W.3d at 492 (citing TEX. CODE CRIM. PROC. ANN. art. 44.02).
“However, a defendant in a non-capital case may waive any rights secured to him
by law.” Id. (citing TEX. CODE CRIM. PROC. ANN. art. 1.14(a)). A defendant’s waiver
20
of the right to appeal must be made voluntarily, knowingly, and intelligently, and a
valid waiver will prevent the defendant from appealing any issue unless the trial
court consents to the appeal. Id. at 492–93 (citing Monreal v. State, 99 S.W.3d 615,
617 (Tex. Crim. App. 2003)). “[A] defendant may knowingly and intelligently waive
his appeal as part of a plea when consideration is given by the State, even when
sentencing is not agreed upon.” Id. at 494 (citation omitted).
Appellant argues that she did not knowingly and voluntarily waive her right
to appeal because the State had not recommended a punishment, so she did not know
what sentence the trial court would impose on her when she executed the waiver.
Appellant also argues that her appeal waiver was not knowing or voluntary because
the State did not give her consideration for it. The State responds that it waived its
right to a jury trial in exchange for appellant’s ability to apply for deferred
adjudication, which the State contends was “not available but for the State’s waiver
[of its right to a jury trial].” The State also argues that it waived its right to a jury
trial in exchange for appellant’s waiver of her right to appeal. We disagree.
The Supreme Court has held that a criminal defendant who pleads guilty
ordinarily waives the privilege against self-incrimination, the right to trial by jury,
and the right to confront accusers. Godinez v. Moran, 509 U.S. 389, 398 (1993). The
Court has not held, however, that a guilty plea normally waives the right to appeal.
See, e.g., id. A waiver of the right of appeal, like the waiver of other rights, does
21
require consideration, however, and the Court of Criminal Appeals has addressed
the consideration required to support a finding that a defendant has waived her right
of appeal several times in the last few years.
Ex parte Delaney is particularly on point. 207 S.W.3d 794, 795–99 (Tex.
Crim. App. 2006). In that case, a waiver of appeal was executed before the trial court
proceeded to adjudicate guilt; it was not bargained for; and there was no
recommended sentence. Id. at 798. Accordingly, the Court of Criminal Appeals
concluded that the defendant’s “waiver of appeal was not made knowingly and
intelligently regarding the sentencing phase of trial.” Id. It added, “Even when a
waiver is bargained for in exchange for deferred adjudication, if the plea agreement
does not contain a recommended punishment to be imposed if guilt is adjudicated,
then the waiver may not be knowing and intelligent and thus may not be valid.” Id.
at 798–99. Although a recommended sentence does not guarantee that the defendant
will receive the specified sentence, the defendant cannot be certain of the terms of
his sentence until he violates the terms of his community supervision and guilt is
adjudicated. Id. at 799. Because the defendant “could not know what errors might
occur at the sentencing phase of trial or what punishment would be assessed if guilt
was adjudicated, . . . [his] waiver was not knowing and intelligent and [did] not bar
him from appealing from the punishment phase of trial.” Id. at 799–800.
22
Subsequently, the Court of Criminal Appeals addressed the broader issue of
“whether a defendant can voluntarily waive his appeal when sentencing was not
agreed upon, but where consideration was given by the State.” Carson, 559 S.W.3d
at 494. Carson too is applicable here because the State argues that consideration was
given for appellant’s waiver of the right to appeal—namely the State’s
relinquishment of its right to a jury trial. Id. (citing Ex parte Broadway, 301 S.W.3d
694, 695–96 (Tex. Crim. App. 2009) (holding waiver of right to appeal was valid
where State waived right to jury trial in exchange for defendant’s right to appeal)).
In Carson, the court examined the record and found evidence that the defendant
“negotiated with the State in order to ensure that he would have his case heard by
the trial court, as opposed to a jury.” Id. at 495. The State had initially represented
to the trial court in a pretrial conference that it did not intend to waive its right to a
jury trial. Id. However, at the guilty-plea hearing, defense counsel told the court that
the defendant had “negotiated to get the State to waive a jury” and that the defendant
waived his right to appeal to induce the State to waive a jury. Id. The State confirmed
that it had told defense counsel that the State wanted a jury trial if the defendant
intended to appeal, and defense counsel stated that he had explained to the defendant
that his best chance at a less severe punishment was for the trial court to assess
punishment and, to ensure the trial court assessed punishment, the defendant waived
23
his right to appeal even though he entered an open plea without a sentencing
recommendation. Id.
Based on these representations, the court determined that the defendant had
negotiated for the State to waive its right to a jury trial by waiving his right to appeal:
Given these exchanges, it is clear that [the defendant’s] trial counsel
and the prosecutor had discussed the possibility of going to a jury and
[the defendant’s] desire not to do so. It is also apparent that the State
did not want to consent to a bench trial if there was a possibility of a
later appeal.
Carson, 559 S.W.3d at 495–96. The court held that the defendant’s waiver of his
right of appeal was made in exchange for consideration given by the State and, thus,
was voluntary, knowing, and intelligent. Id. at 496.
Unlike in Carson, the record on appeal in this case does not reflect that
appellant waived her right of appeal in exchange for consideration given by the State.
See id. To the contrary, the record reflects that appellant and the State negotiated for
both parties to give up their right to a jury trial in exchange for appellant’s guilty
plea—not for her waiver of her right to appeal. The record further reflects that
appellant surrendered her right to appeal in advance of the punishment hearing and
without a known recommendation by the State as to punishment solely in order to
be allowed to seek community supervision for the third time and, thus, she had no
knowledge of the sentence to be imposed at the time she signed the waiver. This is
exactly the same situation as in Delaney, in which the Court of Criminal Appeals
24
held the defendant’s waiver of appeal was invalid. See Delaney, 207 S.W.3d at 799
(concluding defendant’s pretrial waiver of appeal was not voluntary, knowing, or
intelligent where plea agreement did not state actual or maximum punishment
because “unanticipated errors may occur at the punishment phase of trial”). We see
no reason to depart from Delaney and Carson in this case.
The references to appellant’s appeal waiver in her written guilty plea and in
the written appeal waiver itself conditioned the waiver on a sentencing
recommendation by the State, but the State did not make a recommendation. At
appellant’s plea hearing, appellant acknowledged that she was waiving her right of
appeal, but there was no discussion regarding whether she had bargained or received
consideration for the waiver. The trial court’s written order accepting appellant’s
guilty plea stated that appellant voluntarily and knowingly executed a waiver of her
right to a jury trial, but it did not mention any waiver of her right to appeal. At her
sentencing hearing, the trial court again acknowledged that appellant had waived her
right to a jury trial, but again there was no mention of an appeal waiver. The trial
court’s judgment expressly found “that there was no plea-bargaining agreement
between the State and [appellant],” and the judgment did not mention an appeal
waiver. The trial court’s original certification of appellant’s right of appeal stated
both that this was a plea-bargain case and appellant had no right of appeal and that
appellant had waived her right of appeal.
25
Because the certificate appeared defective, we abated this appeal after the
parties filed their briefs in this Court and remanded the case to the trial court to
determine whether its original certificate was defective. The trial court held a hearing
at which Coleman, appellant’s trial counsel, and Assistant District Attorney Farukhi,
the State’s trial counsel, both testified as set out above.
After the hearing, the trial court amended its certificate of appellant’s right to
appeal, certifying that appellant’s case “is not a plea-bargain case, and [appellant]
has the right of appeal.” The trial court issued findings of fact and conclusions of
law, including that appellant’s plea paperwork stated that appellant waived her right
to a jury trial but did not state that the State would waive its right to a jury trial in
exchange for appellant’s appeal waiver. The court also found that appellant’s written
waiver of her right of appeal did not mention any consideration provided by the
State. Based on its findings, the trial court concluded that there was no evidence
showing that appellant’s waiver of her right to appeal, even in part, induced the State
to waive its right to a jury trial or that appellant’s waiver of her right of appeal was
bargained for in exchange for the State’s waiving its right to a jury trial. The trial
court further concluded that the State’s waiver of a jury trial was given as
consideration for appellant’s agreement to plead guilty to two felony offenses, and
that appellant thus did not validly waive her right of appeal. Neither party has
26
challenged the trial court’s findings and conclusions or amended certificate of
appellant’s right of appeal.
Because there is no record evidence showing that the State provided any
consideration for appellant’s waiver of her right to appeal, we conclude that
appellant did not enter a voluntary, knowing, or intelligent waiver of that right. See
Carson, 559 S.W.3d at 496. Our conclusion is supported by the trial court’s amended
certification of appellant’s right of appeal and its findings of fact and conclusions of
law accompanying the amended certification, which neither party has challenged.
Accordingly, we hold that appellant has not waived her right to appeal the trial
court’s judgment, and, therefore, we have subject-matter jurisdiction to consider the
merits of appellant’s remaining issues on appeal. See TEX. CODE CRIM. PROC. ANN.
art. 44.02; Carson, 559 S.W.3d at 492.
Preservation of Error
The State argues that appellant waived her sole issue on appeal by presenting
a multifarious issue and by not citing the record on appeal. The State contends that
appellant’s issue is multifarious because appellant argues more than one legal theory
in a single issue: (1) that her guilty plea was involuntary due to ineffective assistance
of counsel; and (2) that her waiver of appeal is invalid. The State further contends
appellant inadequately briefed her issue because she did not cite the record on appeal
27
to support her assertion that she was “wrongly coerced by her attorney to enter an
open plea of guilty.”
A. Multifarious Issue
When an appellant bases a single point of error on more than one legal theory
or specific ground, the point of error is multifarious. See Davis v. State, 329 S.W.3d
798, 803 (Tex. Crim. App. 2010). Appellate courts may disregard and refuse to
review multifarious points of error, but we may also elect to consider such points of
error in the interest of justice. See id. (“Because appellant bases his single point of
error on more than one legal theory, his entire point of error is multifarious. We will,
however, review his arguments in the interest of justice.”) (citing TEX. R. APP. P.
38.1); Stults v. State, 23 S.W.3d 198, 205 (Tex. App.—Houston [14th Dist.] 2000,
pet. ref’d) (“[W]e may also elect to consider [multifarious points of error] if we are
able to determine, with reasonable certainty, the alleged error about which the
complaint is made.”) (citation omitted).
We have already determined that appellant’s waiver of appeal was invalid and
that, therefore, we have jurisdiction over this appeal. Subject-matter jurisdiction is a
threshold matter, which we must address in order to determine whether we have the
power to address the merits of an appeal. See Ex parte Moss, 446 S.W.3d 786, 788
(Tex. Crim. App. 2014) (“We have held that a lack of . . . subject-matter jurisdiction
deprives a court of any authority to render a judgment.”) (citation omitted); Tex.
28
Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993) (“Subject
matter jurisdiction is essential to the authority of a court to decide a case.”).
Therefore, that issue should not prevent our reaching the merits of the rest of
appellant’s claims. Moreover, to the extent appellant’s issue is multifarious, we can
determine with reasonable certainty the errors about which she complains, and we
will, therefore, review her remaining arguments in the interest of justice. See Davis,
329 S.W.3d at 803; Stults, 23 S.W.3d at 205.
B. Ineffective Assistance in Entering Guilty Plea and Waiving Appeal
Appellant, in her brief on appeal, blames her entering a guilty plea “on poor
advice of her attorney,” stating that “she was wrongly coerced and convinced by her
attorney to enter an open plea of guilty without benefits of any kind” and that “[she]
was coerced and clearly misadvised” into “enter[ing] an open plea without an agreed
punishment recommendation . . . .” However, appellant cites no caselaw concerning
ineffective assistance of counsel, and she does not argue either that her counsel’s
performance was deficient or that such a performance prejudiced her, both of which
a defendant must show to prevail on a claim of ineffective assistance of counsel. See,
e.g., Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002) (“To prevail on his
claims [of ineffective assistance of counsel], appellant must first show that his
counsel’s performance was deficient” because “his counsel’s representation fell
below the objective standard of professional norms,” and, “[s]econd, appellant must
29
show that this deficient performance prejudiced his defense.”) (citing Strickland v.
Washington, 466 U.S. 668, 687 (1984), and Mitchell v. State, 68 S.W.3d 640, 642
(Tex. Crim. App. 2002)); see also TEX. R. APP. P. 38.1(i) (requiring “clear and
concise argument for the contentions made [in brief on appeal], with appropriate
citations to authorities and to the record”).
Moreover, an appellant’s claims of ineffective assistance must be supported
by the record on appeal, which, in a direct appeal such as this one, will “rarely . . .
contain sufficient information to permit a reviewing court to fairly evaluate the
merits of such a serious allegation.” See Bone, 77 S.W.3d at 833 (stating that,
because “[a]ppellate review of defense counsel’s representation is highly deferential
and presumes that counsel’s actions fell within the wide range of reasonable and
professional assistance,” record on direct appeal will usually be insufficient “to show
that counsel’s representation was so deficient and lacking in tactical or strategic
decision-making as to overcome the presumption that counsel’s conduct was
reasonable and professional”). We have reviewed the record on direct appeal and
conclude that it does not support a claim that Coleman’s performance was deficient
because her performance fell below an objective standard of professional norms or
that such performance prejudiced appellant’s defense. See id.
Moreover, after the parties filed their briefs, including appellant’s brief with
the language quoted above, we remanded the case to the trial court to consider
30
whether its original certificate of appellant’s right of appeal was defective. At the
remand hearing, appellant was represented by her appellate counsel, Hughes, who
signed her appellate brief. According to the record of the hearing, which was filed
in this Court as a supplement to the record on appeal, Hughes repeatedly represented
to the trial court that appellant was not asserting a claim of ineffective assistance of
counsel on appeal.
The issue of ineffective assistance arose on remand only when Coleman, who
testified at the remand hearing, asserted a claim of attorney-client privilege over
communications between appellant and herself. This privilege is generally waived
when a criminal defendant asserts a claim of ineffective assistance of counsel. See,
e.g., State v. Thomas, 428 S.W.3d 99, 106 (Tex. Crim. App. 2014) (“When counsel
faces an ineffective-assistance claim, the attorney-client privilege is waived, and trial
counsel has the opportunity to explain his actions.”). When the trial court asked
Hughes if “there [had] been an ineffective assistance claim[,]” Hughes answered
“No.” During the same hearing, the trial court stated, “I don’t believe that there is a
writ or anything of that sort alleging ineffective assistance or anything accusatory
that would invoke [attorney-client] privilege,” to which Mr. Hughes responded,
“There’s not a writ, Your Honor.” See id.
During this discussion, the State referred to appellant’s brief on appeal,
arguing that appellant “does raise peripherally an ineffective assistance of counsel
31
claim for poor attorney advice.” Hughes responded, “I would say poor attorney
advice does not rise to the level of an ineffective assistance of counsel.” Appellant,
who was present at the hearing, did not contradict her counsel’s representations or
attempt to waive the privilege and assert a claim of ineffective assistance of her trial
counsel. See Carmona v. State, 941 S.W.2d 949, 953 (Tex. Crim. App. 1997) (“[T]he
power to waive the attorney-client privilege belongs to the client, or his attorney or
agent both acting with the client’s authority.”) (citations omitted).
Furthermore, the trial court’s findings of fact and conclusions of law, which
the trial court issued pursuant to this Court’s order after its hearing on remand,
expressly concluded, “[Appellant] did not waive her attorney-client privilege
because there has been no claim of ineffective assistance of counsel filed by
[appellant], nor has [appellant] asserted anything accusatory that would invalidate
the privilege and, therefore, the privilege is still in effect.” See Thomas, 428 S.W.3d
at 106. The findings and conclusions were signed and filed by Hughes on behalf of
appellant, and the trial court’s order adopted appellant’s proposed findings and
conclusions in their entirety. Neither party has challenged those findings and
conclusions in this Court. And, even if they had, we must accept the findings of the
trial court as true unless they are refuted by the record. See Miller v. State, 393
S.W.3d 255, 263 (Tex. Crim. App. 2012); Ex parte Montano, 451 S.W.3d 874, 877
(Tex. App.—Houston [1st Dist.] 2014, pet. denied) (stating that, when issue is
32
necessarily fact intensive, “a trial court’s finding must be accepted on appeal unless
it is clearly erroneous”).
Based on appellant’s lack of briefing on the issue and her appellate counsel’s
representations at the hearing on remand to the trial court after appellant filed her
brief in this appeal, we conclude that appellant has not raised a claim of ineffective
assistance of counsel. See TEX. R. APP. P. 38.1(i). We therefore turn to whether the
record demonstrates that appellant’s guilty plea was not knowing and voluntary.
Guilty Plea
Appellant argues that her plea of guilty was not knowing or voluntary because
she entered an open plea without benefit of a sentencing recommendation “on poor
advice of her attorney.” Appellant further argues that she intended to go to trial, but
after her co-conspirator received a twenty-eight-year sentence, she entered a plea
expecting to receive “a much less severe sentence than that which was ultimately
imposed,” and she thus entered “an unknowing and involuntary plea” of guilty. She
also argues that the fact “she entered an open plea without an agreed punishment
recommendation suggests, after nearly a year and a half of preparation for trial, that
33
she was coerced and clearly misadvised.”4 The State responds that appellant’s guilty
plea was knowing and voluntary.
A. Standard of Review and Governing Law
The voluntariness of a guilty plea is determined by the totality of the
circumstances. McNeill v. State, 991 S.W.2d 300, 302 (Tex. App.—Houston [1st
Dist.] 1999, pet. ref’d) (citing Griffin v. State, 703 S.W.2d 193, 196 (Tex. Crim. App.
1986), and Edwards v. State, 921 S.W.2d 477, 479 (Tex. App.—Houston [1st Dist.]
1996, no pet.)). A trial court may accept a guilty plea only if it is entered freely and
voluntarily. TEX. CODE CRIM. PROC. ANN. art. 26.13(b). When the record shows that
the defendant received statutory admonishments, including on punishment, there is
a prima facie showing that the defendant knowingly and voluntarily pleaded guilty.
Mason v. State, 527 S.W.3d 505, 509 (Tex. App.—Houston [1st Dist.] 2017, pet.
ref’d) (citation omitted). A defendant who attests that she understands the nature of
her plea and that her plea was voluntary carries a “heavy burden” on appeal to show
that her plea was involuntary. Id. (citation omitted). To meet that burden, the
defendant must affirmatively show that she was not aware of the consequences of
her plea and that she was misled or harmed by the trial court’s erroneous
4 Despite this language in appellant’s brief, we reiterate that, for the reasons we
discussed above, we do not read appellant’s brief as presenting an issue of
ineffective assistance of counsel.
34
admonishment. Id. (citing TEX. CODE CRIM. PROC. ANN. art. 26.13(c)) (citations
omitted).
B. Analysis
Appellant signed a written guilty plea, “voluntarily enter[ing] [her] plea of
guilty” to two counts of first-degree felony offenses, one for theft and one for money
laundering, and she acknowledged in written admonishments that the range of
punishment for her two charged offenses was “5 to 99 years or life and up to a
$10,000 fine.” In open court at appellant’s plea hearing, appellant pleaded guilty to
both counts after the trial court again admonished appellant that she was being
charged with two first-degree felony offenses, one each for theft and money
laundering, and that “the range of punishment on both of these counts is anywhere
from [5] to 99 years or life in the Texas Department of Criminal Justice Institutional
Division and an optional fine not to exceed $10,000[.]” Because the record shows
that appellant was admonished on the punishment range of the offenses to which she
pleaded guilty, there is prima facie evidence that appellant’s guilty plea was knowing
and voluntary. McNeill, 991 S.W.2d at 302 (citing Ex parte Williams, 704 S.W.2d
773, 775 (Tex. Crim. App. 1986)).
Appellant argues that her guilty plea was not knowing and voluntary because
her attorney gave her “poor advice,” she expected to receive “a much less severe
sentence than that which was ultimately imposed,” and she entered an open plea
35
without an agreed punishment recommendation, which “suggests” that, after
preparing for trial for one-and-a-half years, appellant “was coerced and clearly
misadvised.” Regarding appellant’s argument that she was poorly advised and
“coerced and clearly misadvised,” appellant does not cite any record evidence
supporting her claims, and our review of the record shows that her claims are not
supported by the record on appeal. See McNeill, 991 S.W.2d at 302 (stating that if
record shows defendant was admonished on punishment, burden shifts to defendant
to show plea entered without understanding consequences). There is nothing in the
record showing what advice Coleman gave her or how such advice was poor or
coerced appellant to plead guilty. To the contrary, the record shows that, by signing
her guilty plea, appellant acknowledged that she was mentally competent, that she
understood the charges against her and all of the admonishments, including on
punishment range, and that she “voluntarily enter[ed] her plea of guilty . . . , and
[her] plea [was] not influenced by any fear, coercion, or duress, or any
persuasion . . . .” Appellant also signed her acknowledgement that she had
“consulted fully with [her] attorney before entering [her] plea and [was] satisfied
that [her] attorney [had] properly represented [her].”
The thrust of appellant’s argument that her plea was unknowing and
involuntary is that she entered an open plea without a sentencing recommendation
and ultimately received a harsher sentence that she expected. The trial court
36
sentenced appellant to twenty-eight years’ imprisonment, matching the sentence of
her co-conspirator, Davidson, as the State had argued at appellant’s sentencing
hearing. The trial court rejected appellant’s request that she be placed on community
supervision. Although appellant referred to Davidson as “the mastermind behind this
situation,” the record evidence does not support appellant’s expectation that she
should have received a less severe sentence. Appellant and her co-conspirators were
accused of stealing and laundering more than $8 million over a seven-year period,
more than $3 million of which is attributed solely to appellant. At her sentencing
hearing, Dr. Kalsi testified about appellant’s participation and the amount of money
stolen from him by appellant and the others. Cardenas, the economic crimes
investigator, also testified about the amount of money appellant stole and laundered,
and his testimony was supported by numerous financial documents admitted at the
hearing. There was also testimony and evidence that appellant previously had been
convicted of felony theft and welfare fraud and sentenced both times to community
supervision. After sentencing in this case, the trial court rebuked appellant for,
despite being in her fifties, having not “learned a lesson” after her two prior crimes
and sentences of community supervision.
Appellant points to no record evidence showing that her guilty plea was not
knowing and voluntary despite the severity of the two first-degree felony offenses
to which she pleaded guilty, the court’s admonishments of the punishment range,
37
and her prior criminal history. See Brady v. United States, 397 U.S. 742, 757 (1970)
(“A defendant is not entitled to withdraw his plea merely because he discovers long
after the plea has been accepted that his calculus misapprehended the quality of the
State’s case or the likely penalties attached to alternative courses of action.”); Ex
parte Broussard, 517 S.W.3d 814, 816 (Tex. Crim. App. 2017) (“A guilty plea is
valid only if it is ‘a voluntary and intelligent choice among the alternative courses
of action open to the defendant.’”) (citation omitted). Appellant was admonished
that she could be punished anywhere from five to ninety-nine years or life, and her
sentence fell within that range. See Mason, 527 S.W.3d at 509 (stating standard to
show guilty plea was involuntary and unknowing is that defendant was unaware of
plea consequences and misled or harmed by trial court’s erroneous admonishment);
State v. Simpson, 488 S.W.3d 318, 323 (Tex. Crim. App. 2016) (“Simpson’s
sentence fell well within the statutory range . . . . Accordingly, there is no reason to
compare his sentence to sentences imposed on others—including the probated
sentence of the main actor in this case.”) (citing Graham v. Florida, 560 U.S. 48, 60
(2010), and McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir. 1992)).
Because appellant attested that she understood the nature of her plea and that
her plea was voluntary, she had a heavy burden on appeal to prove that her guilty
plea was actually involuntary. See Mason, 527 S.W.3d at 509. We hold that, on this
record, appellant has not affirmatively met her heavy burden to show that the court’s
38
admonishments left her unaware of the consequences of her plea, or that she was
misled and harmed by pleading guilty. See id.
We overrule appellant’s issue.
Outcome: We affirm the judgment of the trial court. We dismiss any pending motions as
moot.
Plaintiff's Experts:
Defendant's Experts:
Comments: