Opinion
No. 07-19-00338-CR
11-09-2020
DAVID WAYNE KERR, APPELLANT v. STATE OF TEXAS, APPELLEE
On Appeal from the 181st District Court Randall County, Texas
Trial Court No. 21,768-B (Counts I & II); Honorable John B. Board, Presiding
MEMORANDUM OPINION
Before QUINN, C.J., and PIRTLE and PARKER, JJ.
For such a relatively unremarkable proceeding involving a plea bargain for deferred adjudication community supervision and a subsequent revocation proceeding involving a plea of "true" to some allegations and a plea of "not true" to others, this case has a messy and convoluted procedural and appellate history. No one should find solace in the resolution of this matter, nor gratitude in the idea that justice was served, for nothing about this case raises it to the principled standard of equal justice under the law. Those who have dealt with it (including this court) have failed to lift it above the fray of human failings and weaknesses; yet, today, we once again reverse this matter for a new punishment hearing while we find the disposition of guilt to be in accordance with the law. As such, today's opinion has the potential of being nothing more than another ugly chapter in the storied account of a sad set of facts. Let us only hope that those who review it hereafter will have a more favorable sense of confidence that justice was done. For the reasons that follow, we reverse the judgment of the trial court and once again remand this matter for a new punishment hearing.
BACKGROUND
This saga began on July 30, 2010, when a complaint was filed against Appellant, David Wayne Kerr, alleging he had sexually assaulted his daughter, in two different ways as alleged in separate counts of a single complaint. The complaint alleged that these assaults occurred in Randall County, Texas, almost five years earlier, in August 2005. A single indictment with two separate counts was later filed. Both the original complaint and the indictment alleged that the victim of the sexual assault was "a child younger than 6 years of age" as of the date of the offense. Because this fact was undisputed, the minimum term of imprisonment was increased from five years to twenty-five years, rendering it ineligible for community supervision.
The offense charged was aggravated sexual assault. See TEX. PENAL CODE ANN. § 22.021(a) (West 2019). Count I alleged digital penetration, whereas Count II alleged penile penetration. An offense under this section of the Penal Code is a first degree felony. Id. at § 22.021(e).
TEX. PENAL CODE ANN. § 22.021(f)(1) (West 2019).
On January 19, 2012, Appellant appeared before the Honorable James Anderson, judge of Randall County Court at Law Number One, in person and by his legal counsel, Bill Kelly, and, in exchange for a plea recommendation from the State that avoided incarceration, entered a plea of guilty to the "lesser included" offense of aggravated sexual assault of a child under 14 years of age. As reflected in the FELONY PLEA MEMORANDUM filed with the trial court, pursuant to the agreement reached between the district attorney's office and Appellant, through his counsel, Appellant was to receive eight years of deferred adjudication community supervision (with certain agreed terms and conditions of supervision not relevant here) in exchange for his "Plead Guilty to Amended Indictment/Lesser Included Offense of: a child under 14 years of age - a first degree felony." In addition, Appellant agreed to waive his rights of appeal. Judge Anderson accepted the plea agreement and signed a separate order deferring an adjudication of guilt as to each offense, with the periods of community supervision each running for a concurrent term of eight years.
The Randall County Court at Law Number One is a statutory county court at law with jurisdiction to hear felony pleas in uncontested matters. TEX. GOV'T CODE ANN. § 25.1932(a)(4) (West 2019).
An offense is a lesser included offense of the offense charged if it is established by proof of the same or less than all the facts required to establish the commission of the offense charged. See TEX. CODE CRIM. PROC. ANN. art. 37.09(1) (West 2006).
The italics portion of the quote was handwritten, the remainder of the quote was part of a printed form. Notwithstanding this representation, the indictment itself was never physically altered, nor was an amendment formally announced or directed by the court.
A few days shy of one year later, by a single motion designating only the original cause number, but not differentiating as to Count I or Count II, the State moved to proceed with an adjudication of guilt, alleging eight violations of the terms and conditions of Appellant's deferred adjudication community supervision. On April 4, 2013, Appellant appeared in person and by his court-appointed counsel, Mike Watkins, this time before the Honorable John B. Board, presiding judge of the 181st District Court, for the purpose of announcing that Appellant was rejecting the prosecutor's plea bargain offer of eighteen years confinement on each offense, with the two sentences to be served concurrently. Appellant testified he was voluntarily rejecting the plea bargain based on his firm belief that he was innocent of the charges and had entered his original pleas of guilty under duress and only for the purpose of avoiding incarceration. At no time did Appellant's counsel seek to pursue his claim of actual innocence. At that time, Judge Board discharged Mr. Watkins and appointed new counsel to represent Appellant.
A short three weeks later, on April 24, 2013, Appellant again appeared in person and by newly appointed counsel, Darrell Carey, before Judge Board, and pleaded "true" to some allegations and "not true" to others. Following an agreed-to, non-bifurcated hearing on the State's motion to proceed, the trial court found Appellant had violated the terms and conditions of his community supervision as alleged and, without pronouncing an adjudication of guilt or specifying to which count or counts, summarily pronounced a singular seventy-five year sentence. When it later came time to enter a judgment, however, the trial court entered two separate judgments, each assessing a seventy-five-year sentence as to each count. The respective judgments, dated April 24, 2013, each reflected that the two sentences would be served concurrently.
Appellant gave timely notice of appeal and subsequently, on November 25, 2014, this court issued its opinion reversing the judgments and sentences in both causes and remanding the matter to the trial court for a new revocation hearing based on the trial court's failure to pronounce an adjudication of guilt and separately assess sentence as to each offense. See Kerr v. State, No. 07-13-00128-CR, 07-13-00380-CR, 2014 Tex. App. LEXIS 12850 (Tex. App.—Amarillo Nov. 25, 2014, no pet.) (mem. op., not designated for publication). Accordingly, the matter was subsequently remanded to the trial court for further proceedings.
Another year later, on November 24, 2015, the matter was reconvened based on the same motion to proceed. Prior to the proceeding, Judge Board advised counsel for the State and Appellant that he would not accept a newly proposed negotiated plea bargain recommendation of forty years as to each offense, with the sentences to be served concurrently. In light of the court's statement, this time, Appellant entered a plea of "not true" to all the allegations contained in the motion to proceed. Following the entry of Appellant's plea, the State waived the allegations contained in paragraph 1 of the motion to proceed and presented witness testimony in support of the remaining allegations contained in paragraphs 2 through 8. At the conclusion of the State's case, the State and the defense closed. The trial court found the allegations in paragraphs 2 through 8 to be true and proceeded to hear evidence on the issue of punishment.
The State offered additional evidence concerning Appellant's prior criminal record and Appellant offered his own testimony. During that testimony, Appellant offered his explanation as to why the violations of his community supervision should be excused and maintained that he was actually innocent of the offenses charged and that he had originally pleaded guilty only out of an unexplained fear or duress having something to do with his "very vengeful," "drug addict" wife. In its closing arguments to the court, the State emphasized that the victim was a "five or six" year old child (contrary to the original plea where Appellant pleaded guilty to the "lesser included" offense of aggravated sexual assault of a child under fourteen years of age) and the prosecutor asked the court to "sentence Mr. Kerr within the range [not specifically identified] and that you consider stacking those two offenses." Defense counsel prayed for leniency, emphasizing that Appellant was sixty-one years old and that a lengthy sentence was effectively a life sentence. The trial court admonished Appellant concerning his claim of innocence, remarking, "I don't find that to be credible . . . ." At that point, the trial court pronounced a finding of guilt as to each offense, assessed a sentence of seventy-five years as to each offense, and announced, "And so I will order that Count II not begin until after Count I has been satisfied. It's my intention to stack or run those consecutively as opposed to concurrently . . . ." Following the pronouncement of sentence, the trial court admonished Appellant that because the plea bargain had been rejected, he would be entitled to an appeal, to which he replied, "Yes, sir, I'd like to appeal the original conviction." A discussion ensued regarding the permissible scope of an appeal and the conversation ended with a statement that the trial court would "get you someone appointed and let them handle it." Despite Appellant's manifestations of his present intent to appeal his convictions and the trial court's express representation of its intent to presently appoint counsel, written notice of appeal was never filed, and, resultantly, appellate counsel was never appointed. Appellant's trial counsel was, however, allowed to withdraw.
Six months later, on May 8, 2016, Appellant sent correspondence to the Randall County District Clerk inquiring on the status of his appeal. Rather than recognizing that a mistake had been made and someone had dropped the ball on Appellant's appeal, his correspondence was filed, but went unanswered. By a letter dated June 26, 2016 (file marked July 5, 2016), Appellant sent a second letter to the district clerk, renewing his request for a court-appointed attorney. Again, his correspondence, though filed, went unanswered. On July 18, 2016, Appellant sent yet again another letter, this time requesting "ALL court transcripts," acknowledging that certain fees may be due in order to obtain the documents requested. Again, his correspondence was filed, but it received no reply or response. On August 10, 2016, Appellant sent yet another letter requesting a reply to his request for the appointment of an attorney. Again, no response. On October 22, 2016, he sent another letter requesting a response to his request for information concerning acquisition of his trial transcripts. Again, no response. On April 20, 2017, now more than one year after his first post-appeal revocation hearing, Appellant addressed his concerns directly to Judge Board in a letter outlining his correspondence with the district clerk. The letter was filed with the district clerk, but Judge Board did not respond. On July 14, 2017, Appellant again corresponded with the district clerk, this time requesting the appointment of counsel to assist him in filing an "out of time appeal." Again, no response. On November 15, 2017, Appellant sent another letter to the district clerk requesting "copies of clerk's records" pertaining to court appearances in February 2013 and November 2015. Finally, on December 4, 2017, the district clerk responded to his correspondence with a printed form-letter stating, "Upon receipt of proper fee, the copies you requested will be prepared and mailed. Copies are $1.00 per page. The cost for copies requested will be $___." The next document in the clerk's record is a document filed by Appellant entitled Motion for Appointment of Counsel, dated July 8, 2018, but this time bearing the cause numbers assigned to Appellant's 2013 appeal of his original conviction. Then, on September 11, 2018, Appellant filed yet another pro se document entitled Plaintiff's Original Application for Writ of Mandamus. A reading of that document, however, reveals it to be in substance an application for an article 11.07 writ of habeas corpus, combined with a request for the appointment of counsel. Not receiving an immediate response to that filing, on November 26, 2018, Appellant then filed with this court a petition for writ of mandamus requesting that we compel the district clerk to transmit a copy of his application for writ of habeas corpus to the Texas Court of Criminal Appeals. Anticlimactically, on January 11, 2019, after Appellant had filed a letter with this court seeking to withdraw his petition for writ of mandamus, we dismissed the matter for non-payment of fees. See In re Kerr, No. 07-18-00420-CV, 2019 Tex. App. LEXIS 175 (Tex. App.—Amarillo Jan. 11, 2019, orig. proceeding).
Finally, on July 29, 2019, the new Randall County District Clerk, sent written notice of Appellant's application for a writ of habeas corpus to Judge Board and the Randall County District Attorney. In response, the State candidly conceded that an out-of-time appeal was appropriate and so advised the Court of Criminal Appeals. Accordingly, on September 25, 2019, the Court of Criminal Appeals issued its opinion granting Appellant the privilege of filing an out-of-time notice of appeal, of which he did avail himself, bringing us to this point. See Ex parte Kerr, No. WR-82,679-02, 2019 Tex. Crim. App. Unpub. LEXIS 547 (Tex. Crim. App. Sept. 25, 2019) (per curiam).
Joel Forbis was newly elected to the position of Randall County District Clerk, taking office January 1, 2019.
Well, not quite. The Trial Court Certification of Appellant's right to appeal originally reflected that this was a plea bargain case with no right to appeal and that Appellant had waived his right of appeal—which was incorrect. After abating and remanding the appeal, the trial court did sign a new certification indicating that this was not a plea bargain case and that Appellant did have a right of appeal. See Kerr v. State, No. 07-19-00338-CR, 2019 Tex. App. LEXIS 9431 (Tex. App.—Amarillo Oct. 28, 2019, no pet.) (mem. op., not designated for publication).
ISSUES PRESENTED
In this appeal, Appellant presents four issues: (1) whether the trial judge abused his discretion by ordering Appellant's two seventy-five year sentences to run consecutively, (2) whether the trial judge abused his discretion and reversibly erred by making reference to a void proceeding during sentencing, (3) whether the trial judge reversibly erred by failing to consider the proper range of punishment for the instant offense, and (4) whether the failure to physically amend the indictment pursuant to the express terms of the original plea agreement rendered Appellant's plea involuntary? While each of these issues present interesting questions concerning error preservation, harm analysis, and the judicial process of decision-making, our disposition of the first issue renders the remaining three issues academic. Accordingly, we will focus our attention on issue number one—whether the trial judge erred by ordering Appellant's two sentences to run consecutively; or, more specifically, whether judicial vindictiveness caused Appellant's due process rights to be violated by the imposition of a more severe sentence in response to the successful exercise of his right of appeal—and pretermit consideration of issues two, three, and four. See TEX. R. APP. P. 47.1.
We note that Appellant has not contested the sufficiency of the evidence to support a finding of "true" to the seven allegations contained in the State's motion to proceed designated as paragraphs 2 through 8. Nor has he raised any arguments pertaining to the evidence presented on the issue of punishment. As such, we will assume that the evidence was sufficient to support the alleged violations and we will only address the procedural due process issue raised.
PRESERVATION
As a preliminary matter, the State contends Appellant procedurally defaulted on his claim of judicial vindictiveness because he failed to object at the time he was sentenced. Moreover, the State also contends that, even if Appellant did preserve the claim, the presumption of vindictiveness never arose because Appellant's sentence was imposed following a contested hearing on a plea of "not true" as opposed to the sentence previously imposed based on a plea bargain and a plea of "true."
Addressing these arguments in reverse order, the State is simply incorrect in its position that the presumption of vindictiveness arises only in those situations where the plea of the accused is the same in both proceedings. The presumption of vindictiveness arises from the fact that it is the same sentencing authority, not the same plea. Furthermore, a violation of due process based on judicial vindictiveness is such a fundamental feature of an equitable and just judicial system that it is properly classified as a category two right in the Marin rubric of error preservation. This category of rights is comprised of rights that are "not forfeitable" by mere inaction, but are waivable only when affirmatively and plainly waived. Category two rights operate automatically, and a trial judge has an independent duty to implement these rights unless there is an effective, express waiver. Grado v. State, 445 S.W.3d 736, 739 (Tex. Crim. App. 2014). Because the record does not show an effective waiver of the right to be sentenced by a fair and unbiased judge, the merits of Appellant's complaint are properly subject to review.
Marin v. State, 851 S.W.2d 275 (Tex. Crim. App. 1993), overruled on other grounds, Cain v. State, 947 S.W.2d 262 (Tex. Crim. App. 1997).
DUE PROCESS VIOLATION
Upon retrial or rehearing, a trial judge is not constitutionally precluded from imposing a new sentence, whether greater or less than the original sentence, in light of events occurring subsequent to the first trial or hearing that may shed new light on the accused's "life, health, habits, conduct, and mental and moral propensities." North Carolina v. Pearce, 395 U.S. 711, 723, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969) (quoting Williams v. New York, 337 U.S. 241, 245 (1949)). As such, there is no constitutional bar to the imposition of a more severe sentence upon retrial after a reversal, provided one considers the due process implications of the Fourteenth Amendment. In that regard, the United States Supreme Court has held that where an avenue for appellate review has been afforded to an accused, that avenue must be kept "free and unfettered" of any threat that would "impede open and equal access to the courts." Id. at 724. That means that due process of law "requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial." Id. at 725. Furthermore, since the possibility of such vindictiveness could unconstitutionally discourage or "chill the exercise" of the right of appeal, due process also requires that an accused be freed of apprehension of such a retaliatory motivation on the part of the sentencing judge. Id. Therefore, in order to assure that a more severe sentence is based on constitutionally permissible factors, a presumption of "judicial vindictiveness" arises whenever a judge imposes a more severe sentence on a defendant after a new trial following a successful appeal, unless the reasons for doing so affirmatively appear in the record. Id. at 726. "Those reasons must be based upon objective information concerning identifiable conduct on the part of the accused occurring after the time of the original sentencing proceeding." Id. Furthermore, "the factual data upon which the increased sentence is based must be made part of the record, so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal." Id. A presumption of vindictiveness should be narrowed to those situations in which there is a reasonable likelihood that an unexplained increase in the sentence imposed is the product of actual vindictiveness on the part of the sentencing authority. Wilson v. State, 810 S.W.2d 807, 810 (Tex. App.—Houston [1st Dist.] 1991, no pet.). This is so because the presumption of judicial vindictiveness derives from the sentencing judge's personal stake in the prior conviction. Ex parte Miller, 330 S.W.3d 610, 631 (Tex. Crim. App. 2010). Therefore, generally, no presumption arises if the second sentence is assessed by a different sentencing authority.
Whenever a presumption of vindictiveness arises, the burden shifts to the prosecution to provide an explanation for the more severe sentence. In the absence of a reasonable explanation, the due process rights of an accused person are violated if, after a successful appeal, the trial court imposes a more severe sentence in response to the defendant's legal assertion of his right of appeal, unless the reasons for doing so affirmatively appear of record. Pearce, 395 U.S. 711 at 726.
In Johnson v. State, 930 S.W.2d 589, 592 (Tex. Crim. App. 1996), in the context of determining whether cumulation of sentences constituted increased punishment for purposes of an ex post facto analysis, the Court of Criminal Appeals examined the purpose of a statute providing for consecutive sentences for offenses committed while in prison and determined that the purpose of cumulation of sentences was "to more harshly punish" inmates who commit crimes under those circumstances. Therefore, in cases such as the case at bar, where, after a successful appeal, the same sentencing authority orders that a previously concurrent sentence be served consecutively, we find a presumption of vindictiveness arises, thereby shifting the burden to the State to show a reasonable basis for the increased severity of punishment. Here, not only did the State not offer any explanation justifying a more severe punishment than that assessed prior to Appellant's successful appeal, the State actually offered a plea bargain of forty years (thirty-five years less than the prior sentence assessed by the trial judge) which was rejected by the trial judge before the proceeding even commenced. In the absence of any explanation setting forth the basis for the imposition of a more severe sentence, Appellant's due process rights were violated. Issue one is sustained.
To be clear, it is not the difference in the term of incarceration offered by the State and the term of incarceration imposed by the trial judge that gives rise to the presumption of vindictiveness. Instead, it is the disparate sentence imposed by the same sentencing authority (the trial judge), given without explanation as to why it was more severe following Appellant's successful appeal, that causes a presumption of vindictiveness to arise.
CONCLUSION
The trial court's judgments are reversed, and the cause is remanded for a new punishment hearing on the State's motion to proceed with an adjudication of guilt.
Patrick A. Pirtle
Justice Do not publish. Quinn, C.J., concurring.