Texas Court of Criminal Appeals
Mason v. State
Nos. PD-0643-25 & -0644-25 10/8/26
Issue:
Did the court of appeals incorrectly dismiss the defendant’s appeal from an open-plea case based on the trial court’s certification of appeal indicating that the defendant had waived his right to appeal, rather than considering the timing and circumstances of the waiver?
Holding:
Yes. Pre-sentencing waivers of appeal in open plea cases are invalid. “When a waiver of appeal is non-negotiated and is executed before the trial court assesses the sentence, it is not valid, at least as it pertains to the punishment phase, because it was not made knowingly, voluntarily, and intelligently.” Because the defendant could not know of any potential errors that might happen at sentencing or what his sentence would be, he could not fully appreciate the consequences of the waiver. Read opinion.
Dissent (Yeary, J., joined by Schenck, P.J.):
The dissent noted that the Court granted discretionary review on its own motion and ordered the parties to address whether the Court should reconsider or clarify its decision in Ex parte Delaney, 207 S.W.3d 794 (Tex. Crim. App. 2006). “Today the Court simply vacates the court of appeals’s judgment and remands the cause to that court to treat the merits at least of any error [the defendant] may assert to have occurred during the punishment phase of his trial. The Court has thus now disposed of the case on unqualified reliance on Delaney. It makes no attempt to address the parties’ arguments—arguments our January 29th order directed the parties to make—why we should or should not ‘reconsider or clarify’ Delaney’s rationale. It is as if the Court had granted [the defendant’s] petition for discretionary review rather than granting review on our own motion. It is bewildering.” Read dissent.
Dissent (Parker, J.):
The dissent noted that the defendant relies upon Delaney to undo his pre-sentence waiver of appeal, but Delaney involved a petition for habeas relief, and this defendant raised the issue on direct appeal. “In Washington v. State, [363 S.W.3d 589 (Tex. Crim. App. 2012)], this Court uncritically applied Delaney in a direct appeal, but I would now hold that to be a mistake. Properly viewed, Delaney sets forth a presumptionthat the waiver of appeal was involuntary as to proceedings happening after the waiver. The State should be afforded the opportunity to rebut that presumption, and such an opportunity has not generally been afforded (in the form of a post-judgment hearing) when the case is on direct appeal.” Read dissent.
Commentary:
It is important to distinguish between 1) a negotiated waiver of the right to appeal; and 2) a non-negotiated waiver of that right:
- When a waiver of the right to appeal is part of a bargained-for exchange between the defendant and the State—meaning that the State gave consideration for the defendant’s waiver (e.g., by agreeing to abandon a punishment enhancement allegation; agreeing to reduce the charge to a lesser-included offense; asserting that the State desires a jury trial, but agreeing to waive the State’s right to a jury trial, etc.)—the parties’ agreement and the defendant’s waiver will be enforced on appeal, even if the agreement was for an “open” plea without a punishment recommendation by the State. See Jones v. State, 488 S.W.3d 801 (Tex. Crim. App. 2016) (distinguishing Delaney and applying Ex parte Broadway, 301 S.W.3d 694 (Tex. Crim. App. 2009) (holding that a defendant may “waive his entire appeal as part of a plea, even when sentencing is not agreed upon, where consideration is given by the State for that waiver.”)). It is critical for prosecutors ensure that any consideration that the State gives in exchange for the defendant’s waiver is clearly reflected in the record (e.g., by writing in plea paperwork the agreement and consideration given, by orally describing the consideration during the plea in court, etc.). If the State gives consideration but the record doesn’t show it, the waiver will not hold up on appeal.
- Conversely, when the defendant’s waiver of the right to appeal is not part of a bargained-for exchange between the defendant and the State (or the record fails to reflect the bargained-for exchange), Delaneywill apply and appellate courts will not enforce the waiver concerning any proceedings that occur after the waiver, as happened here.
Texas Court of Appeals
Nichols v. State
No. 14-25-00415-CR 10/6/26
Issue:
Is a hearing or a probation violation finding required for a trial court to extend the length of a defendant’s community supervision?
Holding:
No. “We decline to impose requirements, such as a hearing or a violation finding, that the legislature chose not to impose.” The Court noted that under Code of Criminal Procedure Art. 42A.753, the moving party must show good cause to extend a period of community supervision, but the statute does not define “good cause.” The Amarillo Court of Appeals defined “good cause” in this context as being “something akin to a legitimate or substantial reason, as opposed to mere arbitrariness.” Barton-Rye v. State, No. 07-16-00096-CR (Tex. App.—Amarillo Sept. 1, 2016, pet. ref’d), and two other courts of appeals adopted this definition. “We agree with our sister courts that this definition is well-reasoned and apply it in today’s case. … Although proof of a violation of the terms and conditions of community supervision always constitutes good cause supporting an extension, a violation is not necessary to support an extension.” Read opinion.
Commentary:
This opinion follows the logic and reasoning of other intermediate appellate courts, and all of them apply a common-sense, albeit non-statutory, definition of “good cause” to Article 42A.753 (which permits a judge to extend community supervision “as frequently as the judge determines is necessary” so long as good cause for the extension is shown). The Court of Criminal Appeals has refused defendants’ petitions for discretionary review in other, similar cases, so anticipate that the CCA may also do so here.
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