PD-0921-18 12/05/2018
1. “By holding that Michael’s waiver of the right to appeal was enforceable and that the trial court’s ‘admonishment’ that induced Michael to plead guilty did not violate Due Process and Article 26.13, the Eighth Court’s opinion conflicts with decisions from this Court and the United States Supreme Court. ”
2. “By holding that Michael’s waiver of the right to appeal was enforceable and by ruling that the trial court’s misstatements about its ability to cumulate the sentences—made as it sought to induce Michael to plead guilty—did not invalidate the plea, the Eighth Court’s opinion creates direct conflicts with other courts of appeals on issues now pending before this Court.”
3. “By relying directly on bad/outdated law for the timing of an election and on the impossible scenario of the court sentencing Michael even if he pleaded guilty to the jury to reject Michael’s appeal, and by not addressing Michael’s argument that the trial court coerced him to plead guilty after he said he wanted a trial on trial day, the Eighth Court’s opinion departs from an acceptable course of judicial proceedings and calls for this Court to exercise its power of supervision.”
Buck was indicted on two counts of aggravated sexual assault. A hearing on any pretrial matters was held pursuant to Tex. Code Crim. Proc. art. 28.01. After plea negotiations broke down, defense counsel moved to withdraw. This was denied. On the morning of trial, the trial court told counsel that the case would be resolved that day by jury trial or plea, and that any plea would be open. When Buck said he wished to proceed pro se and go to the jury for punishment, the trial court told him the trial court would assess punishment. Buck then decided to plead open to the trial court. That plea included a waiver of the right to appeal.
Buck appealed. He argued that the trial court denied him due process by coercing him into pleading guilty through threats, improper denial of his right to a jury, and misstatements of law. He also said he was improperly admonished. The court of appeals did not view anything the trial court said to resemble a threat. It held that Buck’s plea was not involuntary due to improper denial of his right to jury punishment because he failed to request it prior to the Article 28.01 hearing. The court of appeals agreed that the trial court had mistakenly told Buck that it could stack the sentences of each count. However, this mistake was applicable to either jury or trial court punishment and so did not affect Buck’s decision. Moreover, the court found Buck’s waiver of appeal was the result of a bargain; the State had said it agreed to waive its right to a jury trial in exchange for it. Finally, the court said that any error in the oral admonishments was cured by the written ones.
Buck challenges both the outcome and analysis of the court of appeals. The only evidence of a bargain, he claims, is the State’s assertion in the trial court after the plea was done. Regardless, any waiver was as involuntary as the plea itself. On this point, Buck claims the court never reached the issue because it never asked if he would have pleaded guilty but for the infirmities. Its resolution of the stacking issue was thus flawed. As for the absence of an election for jury punishment, Buck claims that Tex. Code Crim. Proc. art. 37.07 is both more specific and, as amended, more recent than the pleading requirement in Article 28.01 and so he should have been permitted to request a jury punishment at any time prior to voir dire. As for the admonishments, Buck argues that written admonishments cannot remedy incorrect oral admonishments that coerced the plea that spawned the written admonishments.
