Mallard, Anthony Jermaine
PD-1327-15
| Tex. App. | Oct 8, 2015Background
- Anthony Jermaine Mallard was convicted in a bench trial of sexual assault of a child and sentenced to five years incarceration.
- After sentencing (Dec. 18, 2014) Mallard, on advice of his trial counsel, orally waived his right to appeal in open court; the trial court entered a written certification stating the defendant waived the right to appeal.
- Mallard retained new counsel and filed a timely motion for new trial alleging ineffective assistance of his trial counsel; the trial court held a hearing and denied the motion.
- Mallard timely filed a notice of appeal; the Twelfth Court of Appeals dismissed the appeal based on the trial-court certification and the open-court waiver.
- Mallard sought discretionary review, arguing the waiver was invalid because it was gratuitous (no consideration from the State), made before he could know about counsel’s alleged ineffectiveness, and thus not knowingly and intelligently made.
Issues
| Issue | Plaintiff's Argument (Mallard) | Defendant's Argument (State/Court below) | Held |
|---|---|---|---|
| Whether Mallard validly waived his right to appeal | Waiver was gratuitous, induced by trial counsel, entered before Mallard could know of counsel’s ineffective assistance claims, so not voluntary/knowing/intelligent | Trial-court certification and on-the-record waiver show Mallard waived his right to appeal | Court of Appeals dismissed the appeal because the certification and record show a valid waiver |
| Whether a non-bargained post-conviction waiver can be enforced when counsel later is accused of ineffective assistance | Waiver cannot bar appeal of ineffective-assistance claims because defendant could not have known of counsel’s errors at time of waiver; such claims require post-trial development | A post-conviction, on-the-record waiver is dispositive absent record showing invalidity | Mallard argues binding precedent (Delaney/Washington/Reedy) supports invalidating such waivers when made before the defendant knew the basis for an appeal |
| Whether Tex. R. App. P. 25.2(a)(2) applies to non-plea, non-bargained waivers | Rule 25.2(a)(2) applies to guilty pleas and plea bargains, not to court-found guilt after bench trial with gratuitous waiver | Court of Appeals treated the certification as controlling under the rules | Mallard contends the rule does not limit appellate rights in this context |
| Timeliness of the motion for new trial under mailbox rule | Counsel timely mailed the motion for new trial (Jan. 20, 2015); clerk-filed date (Jan. 22) supports timeliness | No contest as to timeliness in appellate dismissal | Mallard relies on mailbox rule and clerk stamps to establish timely filing |
Key Cases Cited
- Blanco v. State, 18 S.W.3d 218 (Tex. Crim. App.) (post-conviction waivers before sentencing in bargain contexts)
- Ex parte Broadway, 301 S.W.3d 694 (Tex. Crim. App.) (waiver enforceable when given in exchange for consideration from the State)
- Ex parte Delaney, 207 S.W.3d 794 (Tex. Crim. App.) (pre-sentencing or pretrial waivers without bargained consideration are invalid)
- Monreal v. State, 99 S.W.3d 615 (Tex. Crim. App.) (standards for waiver analysis)
- Washington v. State, 363 S.W.3d 589 (Tex. Crim. App.) (applies Delaney to invalidate waivers made before sentencing without State consideration)
- Dears v. State, 154 S.W.3d 610 (Tex. Crim. App.) (limits on appellate waiver rules)
- Randle v. State, 847 S.W.2d 576 (Tex. Crim. App.) (recognizing that ineffective-assistance claims often are discovered only after review)
- Ex parte Reedy, 282 S.W.3d 492 (Tex. Crim. App.) (defendant must be aware of trial events to knowingly waive appellate claims)
- Ex parte Thomas, 545 S.W.2d 469 (Tex. Crim. App.) (waiver invalid if made before awareness of consequences)
- Ex parte Townsend, 538 S.W.2d 419 (Tex. Crim. App.) (similar principle regarding timing and knowledge for valid waivers)