In Plea Bargaining Down to a Lesser Included Offense, Does a Defendant Waive Absolutely All Possible Punishment Error of Any Kind?

A Texas state prosecutor charges a defendant with specific crimes which have certain punishments associated with them. The most common type of plea bargaining is for the State to try to get the defendant to agree to the most punishment possible and for the defendant to try to get the State to agree to the least punishment possible. When the two parties agree as to such a matter and they can get the judge to approve it, then the defendant is stuck with having pleaded guilty and that State is stuck with a particular minimum punishment, and neither side can appeal.
But, as Texas Ninth Court of Appeals Justice Leanne Johnson writes for a panel including Chief Justice Steve McKeithen and Justice Hollis Horton, there is another type of plea bargaining which can be done along with or instead of the other type, which is plea bargaining about which crime should be charged.  Roberto Ishmael Alvarado was charged with capital murder but reached a plea bargain agreement with the Liberty County District Attorney's Office to only be charged with the lesser-included offense of murder. At that time in the process, the trial judge ruled that Alvarado did not have a right to appeal. This makes sense; the part of the process that determined what crime, if any, Alvarado had committed had been determined by an ordinarily unappealable plea bargain. Texas criminal cases have two parts, though, (1) guilt-innocence and (2) punishment. The State and Alvarado did not agree as to what the punishment should be, and the State allowed Alvarado to go to trial under the lesser-included offense only. The Liberty trial jury popped Alvarado hard-- a 60-year sentence plus a $10,000 fine. The trial judge noted in the sentencing paperwork that the sentence was not entered into pursuant to a plea bargain-- Alvarado had gone to trial so that he, Alvarado, had a right to appeal his punishment. The Nines said here that the trial judge was wrong as to the punishment. Alvarado's plea bargain as to the charge had the effect, they said of limiting his punishment so that the punishment determination had also been reached pursuant to a plea bargain, so that Alvarado, in fact, had no right to appeal.
When a defendant pleads guilty to an offense as part of a plea bargain, that defendant cannot appeal that the defendant is not guilty of that offense, and bears the risk of being mistaken as to culpability for that particular offense. When a defendant agrees to accept a particular punishment, a defendant bears the risk that the prosecutor or the trial judge might make a reversible error in the punishment phase of his or her trial. The prosecutor or the trial judge might have made such a mistake, but the defendant gives up the right to be tried and to find out if reversible error manifests itself.
Even if the defendant agrees to plead guilty to a lesser offense, the State can still prevent the defendant from waiving jury trial as to that lesser offense. Plea bargains are governed in part by the law of contracts. The course of dealing of the parties indicates that the State and the trial judge accepted that the defendant, in trading his right to contest guilt-innocence as to a lesser offense for not having to defend the greater charge, had not agreed to accept maximum punishment as to that lesser offense. There does not appear to be any legal nor policy reason for the court of appeals not to get to the merits of the unbargained-for part of the case. If the Court of Appeals does not think better of this decision on reconsideration, it should be taken up to the Court of Criminal Appeals to see if prosecutors and trial courts don't have the power to make deals like this.

No Good Deed Goes Unpunished- Enhancement Judgment Not Final on Its Face Occasions Partial Remand

    Texarkana Texas's Sixth Court of Appeals
reversed and remanded the punishment hearing in Cornel G. Williams v. State of Texas because one of the enhancement judgments showed that it had been appealed. Justices Jack Carter (D) and Bailey C. Moseley (R) were the majority. Chief Justice Josh R. Morriss, III (R) dissented. Submitted on February 10, 2010, the Court released its opinion March 31 of that year.

Williams appealed his conviction for possessing more than four grams of a controlled substance with intent to deliver. The Longview jury enhanced his punishment to life imprisonment— which in Texas state law is 35 years until the convict's first chance to get parole— because of his prior convictions. The State alleged his priors in the indictment. He pleaded "true" to them. The State introduced, without objection from Williams, certified copies of two prior convictions. The opinion says that Williams argued on appeal that "the State's notice" contained "no allegations regarding the sequence of the convictions" and "no mention of when the offenses occurred or when the convictions became final." The Court held that "the documentary evidence revealed that an appeal had been prosecuted from one of those convictions, yet there was no evidence presented to show that the conviction had become final." The evidence was, therefore, legally insufficient. The Court of Appeals cites Ex parte Rich, 194 S.W.3d 508 (Tex. Crim. App. 2006) (orig. proceeding) that Williams's plea of "true" and his failure to object to the judgment that did not show on its face that it was final does not waive this error. Rich's sentence had been enhanced even though one of the enhancing judgments had been proved to have been reduced to a misdemeanor. The Court of Appeals does not state unequivocally state that the judgment in Williams's case was not final— I think they would have, if that judgment had not in fact been final. In Rich, the illegality of his sentence was manifest: a misdemeanor cannot enhance a felony sentence, even if the defendant is willing to suffer such an enhancement. In the absence of perfect proof that an enhancement is final, I believe that the defendant's assent that the enhancement is final should conclude the matter under present Texas law.

The two older justices— the ones not likely facing reelection— decided that 4.83 grams of coke shouldn't turn a 180 day sentence into life.