515 S.W.3d 372 (Tex.App.-Texarkana 2017), 06-15-00170-CR, Carson v. State

Docket Nº06-15-00170-CR
Citation515 S.W.3d 372
Opinion JudgeBailey C. Moseley, J.
Party NameGARY CARSON, Appellant v. THE STATE OF TEXAS, Appellee
Judge PanelBefore Morriss, C.J., Moseley and Burgess, JJ. Ralph K. Burgess, Justice.
Case DateJanuary 31, 2017
CourtCourt of Appeals of Texas

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515 S.W.3d 372 (Tex.App.-Texarkana 2017)

GARY CARSON, Appellant



No. 06-15-00170-CR

Court of Appeals of Texas, Sixth District, Texarkana

January 31, 2017

Submitted July 27, 2016.

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On Appeal from the 102nd District Court, Bowie County, Texas. Trial Court No. 14F0102-102.

Before Morriss, C.J., Moseley and Burgess, JJ.


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Bailey C. Moseley, J.

In Bowie County, Texas, Gary Carson entered an open plea of guilty to three counts1 of assault on public servants who were performing public servant duties, Tex. Penal Code Ann. § 22.01(b) (West Supp. 2016), the penalties being enhanced by previous convictions, Tex. Penal Code Ann. § 12.425 (West Supp. 2016), and three counts of bail jumping, Tex. Penal Code Ann. § 38.10 (West 2011). Carson elected to have the trial court assess punishment, and Carson executed a written waiver of his right to appeal before his plea and sentencing hearing. After a hearing, the trial court sentenced Carson to fifty years' imprisonment in each of the assault cases and ten years' imprisonment in each of the bail-jumping cases.2

During the hearing on Carson's motion for new trial, the trial court revealed that before Carson entered his guilty pleas, the trial court read the State's 404(b)[3] notice

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and, accepting several of the alleged extraneous offenses mentioned therein as true, relied on them in determining Carson's sentences. Upon hearing this, Carson objected. Carson's motion for new trial was overruled by operation of law.

On appeal, Carson contends that (1) the certification of Carson's right of appeal wherein the trial court alleges that Carson has no right of appeal is incorrect; (2) Carson's waiver of appeal is invalid; and (3) considering the unproven extraneous offenses alleged in the State's notice shows that the trial court was biased against him, Carson was deprived of due process.

I. Factual Background

Carson was charged with (a) assaulting Officer Allen Scott Eudy and Officer Shawn Jacobs on or about January 26, 2014, (b) assaulting Sergeant James Michael on or about February 15, 2014, and (c) three counts of bail jumping/failure to appear. Eudy, Jacobs, and Michael were alleged to be public servants who were acting in that capacity. Carson entered an open plea of guilty to all charges and also entered a plea of true to two of the prior felony offenses which were listed in his indictment in order to prove up the requisite facts to support the State's habitual-offender allegations.

On August 10, 2015, the trial court accepted Carson's pleas to each charge, found him guilty of each charge, and sentenced him as to each charge. The trial court made certain that Carson understood that he was entering open pleas to all of the indicted charges and that he did " not have an agreement with the district attorney's office as to any punishment." Carson entered into evidence a set of medical records regarding his mental health issues, medications, and treatment " so that when he does go to the Texas Department of Criminal Justice, they will have some medical background on him." At one point in the hearing, Carson fell down and court personnel called an ambulance. At a later hearing, witnesses testified that Carson was lying on the floor shaking, comparing it to the shaking associated with seizures. Some of the State's witnesses testified that they believed that Carson's collapse on the floor was only an act, but a paramedic who examined Carson testified that Carson had been dealing with an elevated heart rate. After that incident, the hearing was recessed and resumed after about twenty minutes.

Upon resumption of the hearing, the trial court sentenced Carson to fifty years' imprisonment in each of the assault cases and ten years' imprisonment in each of the bail-jumping cases, with the fifty-year sentences to run concurrently with each other, and the ten-year sentences to run concurrently with each other, but consecutively to the fifty-year sentences.

Although Carson was represented at the plea hearing by an attorney supplied by the public defender's office, Carson retained counsel to file a motion for new trial. The motion for new trial was based on allegations that the sentence was disproportionate to the crimes and that trial counsel was ineffective by not seeking to have the trial court disqualified because of his prior career as a police officer (which the movant hinted would have tainted the trial court's attitude against people who are alleged to have assaulted police officers), by failing to object to a disproportionate sentence, by failing to emphasize Carson's mental health issues, by failing to properly present those mental health issues to the trial court, and by failing to call some of Carson's family members and friends as witnesses to testify regarding Carson's long-standing mental health problems. At the hearing on the motion for new trial, Carson's mother, Mary Carson,

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and sister, Lacresha Carson, both testified that Carson's trial counsel did not contact them to testify at the punishment hearing. Tashara Fox, another of Carson's sisters, testified that she was willing to have been a witness and although she had spoken with Carson's trial counsel when she first learned that her brother was going to court, the attorney never contacted her to be a witness at the punishment hearing. During the hearing on Carson's motion for new trial, the three women asserted that Carson had dealt with mental health problems from an early age. Mary admitted that she also suffered from problems with mental health issues. She and Fox testified that when Carson was thirteen or fourteen years old, he was beaten by a gang of men and kicked in the head and that he had experienced periodic blackouts ever since. Lacresha testified that her experience as a registered nurse showed her that Carson's actions, even as a child, indicated that he had mental health problems.

Carson's trial counsel, Will Williams, testified that Carson had claimed to him that he was in the throes of a blackout during each of the assaults on public servants with which he had been charged. Williams admitted that he had not called Lacresha, but that he did not learn of her existence until about three weeks before the punishment hearing (which was conducted on August 10). He acknowledged that he could have tried to contact her (but did not) in time for the hearing on the punishment phase. He also admitted that even though it was on short notice, he had called another of Carson's sisters, Mahagne Carson, and told her to get all the family members who wanted to testify to come to court.

Williams said that he believed that at one point, he had reached an agreement with the State by which Carson would plead guilty and receive a recommendation from it of thirty-five years' imprisonment, but the State informed him that the trial court would not comply with that request, so the proposed plea agreement was neither pursued further nor made a part of the record. The court's rejection of the proposed plea agreement concerned and surprised Williams because it made him feel " that whatever punishment [Carson] received if he went to the trial court would be higher than 35 years." Williams testified that " [a]ny time the Judge has ever told me he wouldn't accept an offer, he always says, [']but we can have a hearing, and you can always change my mind.[']" The trial court confirmed that Williams has changed the trial court's mind in the past. Williams informed Carson that if the court determined sentencing, Williams expected a sentence of " somewhere [between] 45 to 50 [years], maybe higher." If Carson proceeded to a jury trial, Williams believed that--based on Carson's very lengthy prior criminal history--a jury would likely assess Carson a life sentence. Williams told Carson that his best chance for leniency in sentencing was to enter an open plea, take responsibility for his actions, and spare the court having to conduct a week-long jury trial. Even though there was no plea agreement in this case, Williams advised Carson to waive his right to appeal and admitted that Carson executed the waiver of appeal prior to sentencing.

At the conclusion of the hearing on the motion for new trial, the trial court commenced a soliloquy by explaining that it ordinarily " tr[ied] not to read the State's 404(b) notice" of intent to use extraneous offenses " until right before either a plea or a jury selection" because it did not " want to be influenced by what's in them." However, the court admitted that it had read the State's notice in this case either the evening before or " shortly before [Carson] appeared . . . on the open plea." The trial

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court mentioned the entire list of offenses contained in the notice, addressing each offense and describing the extent to which it played a role in his sentencing decision.

In general, the eight prior felony convictions listed in the notice " jumped out at" the court, as did the fact that three of them were " sexual type offenses." The court did not know " at the time that the indecent exposure [offense] was what it was." The court also noticed the four assault cases listed, and though " most of them were misdemeanors, . . . they were still assault cases."

The trial court noted that the " very first felony offense" listed (" carnal abuse first degree" ), happened on the same day as a residential burglary, and from that he " could pretty well tell" that the burglary was tied to the carnal abuse offense. The court admitted that the " sexual offense" coupled with " the sex offender failing to report, twice, two different cause numbers approximately two years apart, . . . played a...

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