Carroll v. State

• Decision Date: 29 May 1997
• Docket Number: Nos. 2-95-467-C,2-95-468-CR,s. 2-95-467-C
• Citation: 946 S.W.2d 879
• Parties: Nelrie Byrd CARROLL, Appellant, v. The STATE of Texas, State.
• Court: Texas Court of Appeals

Page 879

946 S.W.2d 879

Nelrie Byrd CARROLL, Appellant, v. The STATE of Texas, State.

Nos. 2-95-467-CR, 2-95-468-CR.

Court of Appeals of Texas Fort Worth.

May 29, 1997.

Ronald Aultman, Matthew Waddell, Fort Worth, for Appellant.

Tim Curry, Criminal District Attorney, Betty Marshall, Charles M. Mallin, Assistant Chiefs of the Appellate Section, Sylvia Mandel, Terry Barlow, Bill Durkin, Assistant Criminal District Attorneys, Fort Worth, for Appellee.

Before DAY, DAUPHINOT and RICHARDS, JJ.

OPINION

RICHARDS, Justice.

This is an appeal from the sentences assessed by the trial court following two "open" guilty pleas entered by appellant. We withdraw our prior opinion and judgments of February 13, 1997 and substitute the following in their place.

In a nonnegotiated plea to the court, appellant pleaded guilty to two counts of delivery of marihuana. The trial court ¹ accepted her pleas and sentenced her to concurrent five-year sentences and a $5,000 fine. Appellant appeals the punishment portion of the judgments, alleging the court erred by coercing her to testify at the sentencing phase of her hearing. We reverse and remand for new sentencing.

DID APPELLANT WAIVE HER RIGHT TO APPEAL?

The initial question we must address is whether appellant waived her right to appellate review. The State contends that under the "Helms Rule," appellant waived her right to appeal any nonjurisdictional defects in the proceedings by voluntarily pleading guilty. See Helms v. State, 484 S.W.2d 925, 927 (Tex.Crim.App.1972). The State correctly asserts that Helms still controls the appealability of nonnegotiated pleas of guilty. ² See King v. State, 687 S.W.2d 762, 765 (Tex.Crim.App.1985) ; Lynch v. State, 903 S.W.2d 115, 118 (Tex.App.--Fort Worth 1995, no pet.).

The Helms rule provides that where a guilty plea is entered and there is no plea bargain, any nonjurisdictional error occurring before the entry of the plea is waived. See Lynch, 903 S.W.2d at 116. However, there is no jurisdictional bar to appealing matters following a nonnegotiated guilty plea. See Jack v. State, 871 S.W.2d 741, 744 (Tex.Crim.App.1994).

The alleged error in this case occurred at the sentencing hearing nearly three months after appellant pleaded guilty. Consequently, we must address the merits of appellant's point of error. See id. (holding court of appeals erred in not reaching merits of appellant's contention that court improperly admitted evidence of unadjudicated extraneous offenses at sentencing hearing after open plea).

WAS APPELLANT'S TESTIMONY AT THE PUNISHMENT PHASE COERCED?

In her first point of error, appellant argues that the trial court erred in coercing her to testify at the punishment phase of her plea hearing.

Appellant pleaded guilty on July 28, 1995, and testified, pursuant to a written waiver of her right against self-incrimination, that the information contained in each indictment was true and that she was guilty of the charged offenses. This hearing was designated "Hearing on Defendant's Open Pleas of Guilty to Court." At the conclusion of the hearing that day, the trial court: (1) granted appellant's application for a presentence investigation; (2) found there was sufficient evidence to justify a finding of guilt; but (3) reserved the right to make a formal finding of guilt until the completion of the presentence investigation requested by the defense. Three months later on October 13, 1995, following the completion of the presentence investigation, the court proceeded to the sentencing phase of the hearing, designated in the statement of facts as "Final Determination of Guilt/Innocence and Punishment Phase."

At this phase of the hearing, in the following exchange, the trial court advised defense counsel that if appellant invoked her privilege against self-incrimination, the court would consider that invocation as a circumstance against her when determining her punishment:

[PROSECUTOR]: ... [T]he State would call the defendant.

THE COURT: All right. Do you tender your client?

[DEFENSE COUNSEL]: Your Honor, I hate to say this, but do I have to?

THE COURT: Well, I think if you don't, it's going to reflect very seriously on the Court's decisions here.

[DEFENSE COUNSEL]: Your Honor, we do voluntarily offer the defendant.

THE COURT: All right. Thank you. [Emphasis added.]

Thereafter, appellant was subjected to rigorous questioning by the State. In refusing to probate appellant's sentence, the trial judge stated that he believed appellant lied to the probation officer who compiled the presentence report and that she lied again during her testimony at the sentencing phase: "I don't think you can meet [the conditions of] probation either, because you lied here. You lied to me."

It is well-established that a waiver of the Fifth Amendment right at the guilt-innocence phase of a trial does not extend to the punishment phase. See Wilkens v. State, 847 S.W.2d 547, 553 (Tex.Crim.App.1992), cert. denied, 507 U.S. 1005, 113 S.Ct. 1646, 123 L.Ed.2d 268 (1993) ("A defendant has a separate and distinct Fifth Amendment right against self-incrimination at the punishment phase."); Beathard v. State, 767 S.W.2d 423, 431-32 (Tex.Crim.App.1989); Brumfield v. State, 445 S.W.2d 732, 734 (Tex.Crim.App.1969).

It is equally well-established that the Fifth Amendment ³ prohibits increased sentences due to the accused's refusal to testify. ⁴ E.g., United States v. Heubel, 864 F.2d 1104, 1111 (3d Cir.1989); United States v. Safirstein, 827 F.2d 1380, 1388-89 (9th Cir.1987); United States v. Wright, 533 F.2d 214, 216 (5th Cir.1976). Further, "[a]ny effort by the State to compel [a defendant] to testify against his will at the sentencing hearing clearly would contravene the Fifth Amendment." Estelle v. Smith, 451 U.S. 454, 463, 101 S.Ct. 1866, 1873, 68 L.Ed.2d 359, 369 (1981).

The trial court's warning to defense counsel at the punishment phase of the hearing that if appellant invoked her Fifth Amendment privilege at sentencing, such an event would "reflect very seriously" on the court's sentencing decisions conflicts with these well-established principles.

DID APPELLANT WAIVE HER RIGHT TO CLAIM THE PRIVILEGE?

The State suggests there are three reasons why appellant waived her privilege in the trial court: (1) appellant could not invoke her privilege at the sentencing phase because she previously executed a written waiver of her right not to testify; (2) because guilty plea hearings are "unitary" in nature, appellant lost all rights to claim the privilege at sentencing when she testified in support of her guilty plea at the guilt-innocence phase of the hearing; and (3) because appellant did not raise a coercion objection in the trial court, she waived any error.

We now address those concerns. Prior to entering her guilty plea, appellant signed a written waiver of her right against self-incrimination:

I waive my right not to incriminate myself, agree to testify if called as a witness and judicially confess under oath that each and every allegation contained in the indictment or information which is not waived by the State is true and I am guilty of the offense as charged.

In compliance with this waiver, appellant testified that she was "guilty" of the charges against her. It is clearly evident the waiver, by its terms, was limited to the issues to be determined at the guilt-innocence phase. Appellant did not sign a waiver of her right to claim her privilege on sentencing issues. Moreover, because the defendant's plea was an "open," i.e., a nonnegotiated plea, it cannot be said the State's interests at the initial plea could have, in any way, been compromised by the exercise of appellant's privilege at sentencing. Therefore, we hold appellant did not waive her right against self-incrimination at the sentencing portion of the plea hearing when she agreed, in writing, to testify and confess under oath to the allegations contained in the indictment.

The State's second waiver argument is that appellant could not have invoked her privilege because this was a "unitary" hearing. The State's argument is premised on the notion that if there was no sentencing phase, there was no right to exercise her privilege against self-incrimination. In support of its position, the State cites Washington v. State, 893 S.W.2d 107, 109 (Tex.App.--Dallas 1995, no pet.). The defendant in Washington entered an open plea of guilty to possession of cocaine and pleaded true to two enhancement paragraphs alleging prior felony convictions. Later, when the State filed a motion to proceed to adjudication of guilt, Washington pleaded true to the allegations in the State's motion, but requested that the trial court allow him to withdraw his pleas of true to the enhancement paragraphs. Id. The trial court denied the request and proceeded to sentencing. The court of appeals held that Mr. Washington was not entitled to withdraw his pleas of true to the enhancement paragraphs because once he pleaded guilty to the primary offense and true to the enhancement allegations, the trial became a "unitary" proceeding. Id. Therefore, the time during which the plea of true to the enhancement paragraphs could be withdrawn was the same as the time during which the plea of guilty to the primary offense could be withdrawn. The effect of the court's holding is that pleas to a charging instrument's primary offense and enhancement allegations may not be "piece-mealed." Id. at 108-09.

Washington is both factually and legally distinguished from the issue presented here. Nothing in Washington indicates the sentencing phase following a nonnegotiated plea and the portion of the hearing at which the defendant enters the plea of guilty are "unitary" for purposes of determining whether the defendant's privilege against self-incrimination may be asserted. The holding merely provides that such proceedings are "unitary" in the sense that the defendant's pleas of guilt to the underlying offense and true to the...