Brandon Oneal Andrews v. The State of Texas

Little Rock, AR - Criminal defense atty represented defendant Brandon Oneal Andrews with a felony offense of forgery of a financial instrument committed against an elderly individual charge.

On June 16, 2016, appellant, with an agreed punishment recommendation

from the State, pleaded guilty to the felony offense of forgery of a financial

instrument committed against an elderly individual. In accordance with the plea

agreement, the trial court assessed appellant’s punishment at confinement for ten

years, suspended the sentence and placed him on community supervision for six

years.2

Appellant’s community supervision was subject to certain conditions,

including that he:

2 The trial court also assessed a fine of $1,500.

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1. Commit no offense against the laws of the State of Texas or any State

or the United States or any governmental entity;

2. Avoid injurious or vicious habits: including but not limited to: abstain

from the use of narcotics or drugs in any form at any time: abstain from

the use of alcohol in any form at any time or any substance capable of

or calculated to cause intoxication and never become intoxicated;

4. Report to the Community Supervision and Corrections Officer (“CSO”)

of the Court in person, today, daily, weekly, or monthly as directed by

the CSO;

8. Remain within Washington County, Texas, unless permitted to depart

by this Court and/or its CSO;

10. Pay [a] fine, if one be assessed, and the costs of Court, in one or several

sums, and make restitution or reparation in any sum that the Court shall

determine to-wit:

$1,500.00 Fine;

$283.00 Court Costs;

$400.00 Court Appointed Attorney Fee;

$50.00 Crime Stoppers Fee;

$75.00 Check Collection Fee;

Totaling $2308.00 payable in payments of $43.00 per month beginning

July 10, 2016 to the Community Supervision and Corrections

Department of Washington County and continuing no later than the

10th of each month until paid in full;

11. Pay $60.00 a month supervision fee by cashier’s check or money order

to the Washington County Community Supervision and Corrections

Department on or before the 10th day of each month beginning July 10,

2016;

17. Perform 200 hours of Community Service at a rate of no less than 10

hours per month beginning July 1, 2016 and continuing each month

thereafter. All community service hours are to be completed no later

than July 1, 2018; and

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18. Submit to urinalysis upon request of the CSO and at his expense.

On June 20, 2018, the State filed a motion to revoke appellant’s community

supervision, alleging that appellant had violated the above conditions of his

community supervision.

At the October 25, 2018 hearing on the State’s motion, appellant pleaded true

to the State’s allegations in its motion. In connection with his plea of true, appellant

signed a purported plea-bargaining agreement and a judicial confession in which he

admitted to violating the above conditions of his community supervision.3

The State,

at the hearing, informed the trial court that in exchange for appellant’s plea of true

to the allegations in the State’s motion to revoke, it recommended that punishment

against appellant be assessed at confinement for two years, with a credit for 137 days

served. The State also recommended that appellant only enter his plea of true that

day, that his punishment hearing take place on November 1, 2018, and that he be

given a personal recognizance bond. The trial court accepted appellant’s plea of true

and found true the allegations in the State’s motion that appellant had violated the

above listed conditions of his community supervision. The trial court then told

appellant:

. . . I’m going to give you a [personal recognizance] bond today and let

you get out and take care of business, come back, and you will be

sentenced on [November 1, 2018].

3 Copies of appellant’s purported plea-bargaining agreement, stipulations, and

judicial confession were admitted into evidence at the hearing.

5

Once again, if you don’t show up, the two years is off the table and the

Court can still sentence you all the way up to ten years if you don’t

show up.

Appellant stated that he understood. He then absconded before his punishment

hearing on November 1, 2018.

Almost one year later, on October 17, 2019, appellant appeared before the

trial court for his punishment hearing. At the beginning of the hearing, the trial court

stated:

The matter before the Court today is to determine punishment or

sentencing on [appellant] as his . . . [community supervision] was

revoked. . . . He was supposed to return to the [C]ourt as part of the

plea[-]bargain[ing] agreement. He failed to appear, so that

plea[-bargaining] agreement is no longer in effect. Therefore, the

purpose of today’s hearing is to determine the punishment for

[appellant].

The State also stated at the start of the hearing:

. . . The State would simply like to say on the record basically what has

already been said, which is that on June 16th, 2016, [appellant] was

convicted. He received a sentence of 10 years’ confinement in the

Texas Department of Criminal Justice Institutional Division probated

for six years. Subsequently, a motion to revoke his [community

supervision] was filed.

On October 25th of 2018, [appellant] pleaded true to the allegations in

the motion to revoke. His [community supervision] was revoked and

he was supposed to report on November 1st of 2018 for sentencing.

[Appellant] failed to appear, absconded for months. As a result, our

recommendation is certainly no longer binding. The full range of

punishment is now available; and we’re here before [the Court]

today, . . . so you can take these matters into consideration and assess

an appropriate punishment given [appellant’s] behavior.

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Appellant then testified that he had previously entered into an agreement with

the State in connection with the State’s motion to revoke his community supervision.

Appellant pleaded true to every allegation in the State’s motion. Appellant stated

that although he pleaded true to the allegation in the State’s motion that he had

committed the offense of possession of a controlled substance, his plea of true was

a mistake because he did not want to plead true to that allegation. However, he

thought that if he did not plead true then he would be sentenced “to the max.”

According to appellant, “the case [involving the offense of possession of a controlled

substance] was never filed” against him. And although appellant was supposed to

appear for a punishment hearing on November 1, 2018, he did not. He “called the

day of [his] court date . . . to try to get more time,” but he was unable to do so. He

then absconded for months.

Appellant also testified that he was not able to pay his court costs, he did not

complete his community service hours, and he failed to submit to a narcotics-use

test, as alleged in the State’s motion to revoke his community supervision.

According to appellant, he violated the terms of his community supervision.

Appellant stated that he would like for another opportunity to complete his

community supervision.

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4 The complainant against whom appellant committed the felony offense of forgery

of a financial instrument also testified at the punishment hearing.

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Preservation

In his first issue, appellant argues that the trial court violated his due process

rights in revoking his community supervision and assessing his punishment at

confinement for eight years5 because the trial court interjected additional terms into

his plea-bargaining agreement when appellant pleaded true to the allegations in the

State’s motion to revoke. Appellant also argues that the trial court violated his due

process rights in revoking his community supervision and assessing his punishment

at confinement for eight years because the trial court assessed his punishment at

confinement for “a term of years far in excess of the plea[-bargaining] agreement

and without giving [a]ppellant the opportunity to withdraw his plea and renegotiate.”

In his second issue, appellant argues that the State violated his due process rights

because it purportedly “demand[ed] that [a]ppellant be sentenced to a number of

years far in excess of what was agreed upon” in the plea-bargaining agreement.

To preserve a complaint for appellate review, a defendant must show that he

first presented to the trial court a timely request, objection, or motion stating the

specific grounds for the desired ruling. See TEX. R. APP. P. 33.1(a); see also Ware

v. State, No. 06-19-00181-CR, 2020 WL 610695, at *3 (Tex. App.—Texarkana Feb.

10, 2020, no pet.) (mem. op., not designated for publication) (Texas Rule of

5 The trial court also assessed a fine of $1,500. Appellant does not appear to complain

about the imposition of the fine.

8

Appellate Procedure 33.1 applies to complaint about plea of true in revocation or

adjudication proceeding). The purpose of requiring a specific objection in the trial

court is twofold: (1) it informs the trial court of the basis of the objection and gives

the trial court the opportunity to rule on it and (2) it gives the State the opportunity

to respond to the complaint. Resendez v. State, 306 S.W.3d 308, 312 (Tex. Crim.

App. 2009). A defendant “must be specific enough so as to ‘let the trial [court]

know what he wants, why he thinks himself entitled to it, and do so clearly enough

for the [trial court] to understand him at a time when the trial court is in a proper

position to do something about it.’” Id. at 312–13 (quoting Lankston v. State, 827

S.W.2d 907, 909 (Tex. Crim. App. 1992)). Even a claim involving constitutional

error, including a claim that a defendant’s due process rights were violated, must be

preserved by objection or it is waived. See Hull v. State, 67 S.W.3d 215, 216–18

(Tex. Crim. App. 2002); Briggs v. State, 789 S.W.2d 918, 924 (Tex. Crim. App.

1990); see also Juarez v. State, No. 01-14-01035-CR, 2016 WL 1056952, at *3 (Tex.

App.—Houston [1st Dist.] Mar. 17, 2016, pet. ref’d) (mem. op., not designated for

publication).

At the October 25, 2018 hearing on the State’s motion to revoke appellant’s

community supervision, the following exchange took place:

The Court: . . . Is there a plea[-]bargain[ing]

[agreement]?

[State]: There is, Your Honor.

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In exchange for a plea of true to the

allegations contained in the motion to revoke

[community supervision] before you, the

State recommends two years[’] confinement

in the Institutional Division of the Texas

Department of Criminal Justice, with credit

for 137 days served, plus all remaining costs.

As we discussed, there is the added

stipulation that his sentencing will be next

week, and he will simply enter his plea today

and be given a [personal recognizance] bond.

The Court: Right.

. . . .

The Court: All right. So is that your understanding of the

plea[-]bargain[ing] [agreement]?

[Appellant]: Yes, ma’am.

. . . .

The Court: All right. I’m going to hand to your attorney

what’s been marked [as] State’s Exhibit 1,

the Plea Bargain[ing] [Agreement]; State’s 2,

the Stipulations; State’s 3, the Judicial

Confession, and ask you, did you go over

each of those documents with your attorney?

[Appellant]: Yes, ma’am, I did.

The Court: Did you read and understand each of the

documents?

[Appellant]: Yes, ma’am, I did.

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The Court: Did you sign each of them on all the lines that

required your signature?

[Appellant]: Yes, ma’am, I did.

The Court: Did you do that freely and voluntarily?

[Appellant]: Yes, ma’am.

The Court: Did anybody force you, threaten you, or

make you sign them?

[Appellant]: No, ma’am.

The Court: And where required, did you swear to each of

those documents before one of the deputy

district clerks today?

[Appellant]: Yes, ma’am, I did.

. . . .

The Court: Then as to the allegations in the State’s

Motion to Revoke [Community Supervision],

how do you wish to plead, true or not true?

[Appellant]: True.

The Court: Are you pleading true because the violations

are true and for no other reason?

[Appellant]: Yes, ma’am.

The Court: The Court is going to accept your plea of true

and note your plea of true. I’m going to

recess this hearing and we will reset it for

sentencing at 9 o’clock next Thursday,

November 1, 2018. A new judgment will be

prepared and then [the trial court] will

sentence you at that time.

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So I do accept your plea of true and find the

violations to be true, but I’m going to give

you a [personal recognizance] bond today

and let you get out and take care of business,

come back, and you will be sentenced on that

day.

Once again, if you don’t show up, the two

years is off the table and the Court can still

sentence you all the way up to ten years if you

don’t show up.

Do you understand that?

[Appellant]: Yes, ma’am.

Appellant did not make any objections during the entirety of the trial court’s October

25, 2018 hearing on the State’s motion to revoke appellant’s community.

supervision. Appellant also did not ask to withdraw his plea of true at any point.

At the October 17, 2019 punishment hearing, the following exchange

occurred:

The Court: The matter before the Court today is to

determine punishment or sentencing on

[appellant] as his . . . [community

supervision] was revoked. . . . He was

supposed to return to the [C]ourt as part of the

plea[-]bargain[ing] agreement. He failed to

appear, so that plea[-bargaining] agreement

is no longer in effect. Therefore, the purpose

of today’s hearing is to determine the

punishment for [appellant].

Does the State wish to call a witness?

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[State]: No, Your Honor. The State would simply

like to say on the record basically what has

already been said, which is that on June 16th,

2016, [appellant] was convicted. He received

a sentence of [ten] years’ confinement in the

Texas Department of Criminal Justice

Institutional Division probated for six years.

Subsequently, a motion to revoke his

[community supervision] was filed.

On October 25th of 2018, [appellant] pleaded

true to the allegations in the motion to revoke.

His [community supervision] was revoked

and he was supposed to report on November

1st of 2018 for sentencing. [Appellant] failed

to appear, absconded for months. As a result,

our recommendation is certainly no longer

binding. The full range of punishment is now

available; and we’re here before [the Court]

today, . . . so you can take these matters into

consideration and assess an appropriate

punishment given [appellant’s] behavior.

At the conclusion of the punishment hearing, the State made a closing argument to

the trial court, stating:

Your Honor, the State’s position remains the same. [Appellant’s] guilt

is not in dispute. It is also not in dispute that [appellant] has violated

many terms of his [community supervision]. I think we have

established here, as well as in the past, based on his prior pleadings of

true to the allegations contained in his motion to revoke [community

supervision] that [appellant] was in violation of his [conditions of

community supervision] and that his [community supervision] should

be revoked.

The many violations of his [conditions of community supervision]

indicate he was not a successful probationer and should not be

continued on [community supervision]. Moreover, [appellant] didn’t

even show enough respect for either the Court or his [CSOs] to show

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up when ordered for sentencing or to so much as report the fact that he

had not appeared or for whatever -- for whatever reason to his [CSOs].

He was unheard of for months. He absconded.

Your Honor, the full range of punishment is open to the Court in this

case and we ask that the Court assess a punishment that is just and fair

but the State asks that the Court take into consideration not only

[appellant’s] failures while on [community supervision] but the

seriousness of his underlying offense, his disrespect to this Court by

absconding, and his failure to report and to respect his [CSOs] for

months. If he can’t do that, Your Honor, he can’t be back on

[community supervision] and he needs to be sentenced to a period of

confinement. Thank you.

Appellant did not make a closing argument to the trial court at the conclusion of his

punishment hearing. Appellant also did not make any objections during the entirety

of the trial court’s October 17, 2019 punishment hearing, and he did not ask to

withdraw his plea of true at any point.

In his first issue, appellant argues that the trial court violated his due process

rights in revoking his community supervision and assessing his punishment at

confinement for eight years because the trial court interjected additional terms into

his plea-bargaining agreement and the trial court assessed his punishment at

confinement for “a term of years far in excess of the plea[-bargaining] agreement

and without giving [a]ppellant the opportunity to withdraw his plea and renegotiate.”

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A defendant forfeits error if he does not object to the trial court’s improper

participation6

in the plea-bargaining process. See Hallmark v. State, 541 S.W.3d

167, 170 (Tex. Crim. App. 2017); Torres v. State, 587 S.W.3d 503, 508 (Tex. App.—

Houston [14th Dist.] 2019, pet. ref’d) (complaint court improperly intruded into plea

negotiations not preserved for appellate review because defendant never objected to

trial court’s comments); see also TEX. R. APP. P. 33.1(a); Wimberley v. State, No.

01-17-00529-CR, 2018 WL 2925697, at *2 (Tex. App.—Houston [1st Dist.] June

12, 2018, no pet.) (mem. op., not designated for publication) (“[E]rrors concerning

the trial court’s improper intrusion into the plea-bargaining process are subject to

Rule 33.1’s requirements.”).

Further, a defendant forfeits his complaint that the trial court did not allow

him to withdraw his plea of true when he did not request to do so. See Lanum v.

State, 952 S.W.2d 36, 39–40 (Tex. App.—San Antonio 1997, no pet.) (defendant

did not preserve complaint trial court did not allow him to withdraw plea of true

when it did not follow punishment recommendation); see also Lewis v. State, No.

05-12-00682-CR, 2013 WL 4779741, at *3 (Tex. App.—Dallas Sept. 5, 2013, no

pet.) (mem. op., not designated for publication); Barron v. State, No. 13-00-557-CR,

6 See Moore v. State, 295 S.W.3d 329, 332 (Tex. Crim. App. 2009) (“The only proper

role of the trial court in the plea-bargain[ing] process is advising the defendant

whether it will ‘follow or reject’ the bargain between the [S]tate and the

defendant.”).

15

2001 WL 1002446, at *1 (Tex. App.—Corpus Christi–Edinburg Aug. 31, 2001, no

pet.) (mem. op., not designated for publication) (defendant did not preserve

complaint he should have been allowed to withdraw plea of true when trial court did

not follow his plea-bargaining agreement with State).

Here, appellant did not object or otherwise raise his complaints that the trial

court violated his due process rights by improperly adding terms to his

plea-bargaining agreement or that the trial court violated his due process rights by

giving him a chance to withdraw his plea of true when it assessed his punishment at

eight years’ confinement—several years longer than the period of confinement that

the State had originally recommended as part of appellant’s plea-bargaining

agreement. See, e.g., Wimberley, 2018 WL 2925697, at *2 (defendant did not

preserve complaint trial court violated his right to due process by purportedly

participating in plea negotiations); Lewis, 2013 WL 4779741, at *3 (defendant did

not preserve complaint where she never asked to withdraw her plea).

Appellant asserts that he may raise his complaints for the first time on appeal

because the trial court disregarded appellant’s fundamental constitutional rights. See

Mendez v. State, 138 S.W.3d 334, 340 (Tex. Crim. App. 2004). But constitutional

rights, including those that implicate a defendant’s due process rights, may be

forfeited for purposes of appellate review unless properly preserved. See Anderson

v. State, 301 S.W.3d 276, 279–80 (Tex. Crim. App. 2009); see also Mendez, 138

16

S.W.3d at 342 (most complaints “whether constitutional, statutory, or otherwise are

forfeited by failure to comply with Rule 33.1(a)” (internal quotations omitted));

Curry v. State, 186 S.W.3d 39, 42 (Tex. App.—Houston [1st Dist.] 2005, no pet.).

Texas Rule of Appellate Procedure 33.1’s preservation requirements only do not

apply “to rights which are waivable only or to absolute systemic requirements,” the

violation of which may still be raised for the first time on appeal. State v. Dunbar,

297 S.W.3d 777, 780 (Tex. Crim. App. 2009).

The trial court’s purported errors in improperly adding terms to appellant’s

plea-bargaining agreement and in not giving appellant a chance to withdraw his plea

of true are not systemic nor waivable only and may not be raised for the first time

on appeal. See Moore v. State, 295 S.W.3d 329, 333 (Tex. Crim. App. 2009) (trial

court’s purported error in intruding into plea-bargaining process not systemic or

waivable-only error and must be preserved); Mendez, 138 S.W.3d at 350; see also

Garlow v. State, No. 05-13-00924-CR, 2014 WL 2743506, at *2 (Tex. App.—Dallas

June 16, 2014, no pet.) (mem. op., not designated for publication) (defendant’s

complaint trial court did not allow her to withdraw her plea of true not preserved

where defendant did not ask to withdraw her plea or raise objection; exception for

absolute systemic requirements or waivable-only rights did not apply); Lewis, 2013

WL 4779741, at *3.

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Because appellant did not object or otherwise raise his complaints that the trial

court violated his due process rights by improperly adding terms into his

plea-bargaining agreement or that the trial court violated his due process rights by

not giving him a chance to withdraw his plea of true when it assessed his punishment

at confinement for eight years, we hold that he has not preserved these complaints

for appellate review. See TEX. R. APP. P. 33.1(a).

In his second issue, appellant argues that the State violated his due process

rights because it purportedly “demand[ed] [at the punishment hearing] that

[a]ppellant be sentenced to a number of years far in excess of what was [previously]

agreed upon” in the plea-bargaining agreement.

To preserve a complaint that the State breached a plea-bargaining agreement,

a defendant must bring the alleged breach to the trial court’s attention with a timely,

objection, or motion, and he must seek a ruling on the issue. See TEX. R. APP. P.

33.1(a); Joyner v. State, 548 S.W.3d 731, 735 (Tex. App.—Houston [1st Dist.] 2018,

pet. ref’d). Thus, a defendant can preserve his breach-of-the-plea-agreement

complaint by bringing the issue to the trial court’s attention as soon as the error can

be cured, either by an objection at the time of the breach or by moving for a new trial

to compel specific performance of the plea-bargaining agreement. See Joyner, 548

S.W.3d at 735; see also Bitterman v. State, 180 S.W.3d 139, 144 (Tex. Crim. App.

2005). Complaints related to the noncompliance with a plea-bargaining agreement

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must be raised in the trial court to preserve them for appellate review. See Martinez

v. State, 159 S.W.3d 655, 656 (Tex. App.—Corpus Christi–Edinburg 2004, no pet.);

see also Musachia v. State, No. 13-13-00090-CR, 2014 WL 4049885, at *1–2 (Tex.

App.—Corpus Christi–Edinburg Aug. 14, 2014, no pet.) (mem. op., not designated

for publication).

Appellant did not object at the October 17, 2019 punishment hearing that the

State violated his due process rights by purportedly “demanding that [a]ppellant be

sentenced to a number of years far in excess of what was [previously] agreed upon”

in the plea-bargaining agreement. Although appellant filed a motion for new trial,

he did not raise his complaint in his motion. This Court has held that the State’s

breach of a plea-bargaining agreement does not constitute a violation of a systemic

requirement or a waivable-only right that may be reviewed for the first time on

appeal. See Joyner, 548 S.W.3d at 736–38. Consistent with this holding, we have

specifically held that any alleged error constituting a purported breach of a

plea-bargaining agreement must be preserved for appellate review in accordance

with Texas Rule of Appellate Procedure 33.1(a). See id. at 734–39; see also

Martinez, 159 S.W.3d at 656 (breach-of-plea-agreement complaint was not

preserved for review). Thus, we hold that appellant has not preserved for appellate

review his complaint that the State violated his due process rights by purportedly

“demanding [at the punishment hearing] that [a]ppellant be sentenced to a number

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of years far in excess of what was [previously] agreed upon” in the plea-bargaining

agreement.

We affirm the judgment of the trial court.