November 10, 2017

Court of Criminal Appeals of Texas

Gibson v. State

No. PD-1043-16                11/8/17


Is a trial objection asserting a specific ground not included in an earlier suppression motion sufficient to preserve a claim of error?


Yes. To preserve a complaint for review, a party must present a timely objection or motion to the trial court stating the specific grounds for the ruling desired. A trial objection is sufficient to make the trial judge aware of the basis of the objection. It is not relevant that the basis of the objection was not raised in an earlier motion to suppress. The claim of error is preserved as long as the claim on appeal corresponds with the trial objection. Read opinion.

Concurrence (Keller, P.J.):

The defendant’s brief to the court of appeals incorrectly stated that the motion to suppress was re-litigated at trial. The motion was not relitigated, but the defendant did make a trial objection that preserved the claim of error. The court of appeals was justified in relying on the motion to suppress to find the claim was not preserved because it was misled by the defendant’s brief. Nevertheless, the defendant did include a citation to the portion of the record where the new claim was raised at trial and is entitled to have the claim reviewed on the merits. Read opinion.


Do not let this opinion deter you from raising the issue of preservation when briefing an appeal. Just make sure you brief the merits as well. The lesson in this case is that there may be multiple ways for a defendant to preserve and multiple points within a criminal prosecution where the error may be raised.

Hallmark v. State

No. PD-1118-16                11/8/17


Can a plea agreement include a term that if the defendant does not appear at sentencing the judge will sentence within the entire range of punishment, rather than the agreed number of years?


Yes. A “sentencing-within-the-full-range-of-punishment” condition can be a part of the plea agreement as a remedy for partial breach of the agreement’s terms. The judge is following the plea agreement when considering the full range of punishment after the defendant fails to appear for sentencing, and the defendant has no right to withdraw the plea. Here, there is no indication that the judge improperly participated in the plea negotiations, but in any case, an objection to the judge’s involvement must be made at the time the plea is entered to preserve error. Read opinion.

Dissent (Walker, J.):

The “sentencing-within-the-full-range-of-punishment” condition was not a part of the plea agreement. The trial court rejected the plea agreement when it declined to sentence the defendant to the agreed-upon term after the defendant failed to appear at the sentencing hearing. The defendant should be allowed to withdraw her guilty plea because she objected to the court’s rejection of the plea agreement. Read opinion.


Allowing a defendant facing a sentence of confinement to return later to start that sentence is always dangerous. The plea bargain term used here is a prudent way to protect your case from a defendant who has second thoughts about that pending sentence.

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