IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-0643-25 & PD-0644-25
PAUL DAVID MASON, Appellant
v.
THE STATE OF TEXAS
ON PETITIONS FOR DISCRETIONARY REVIEW
ON THE COURT’S OWN MOTION
FROM THE TENTH COURT OF APPEALS
McLENNAN COUNTY
PARKER, J., filed a dissenting opinion.
DISSENTING OPINION
Appellant relies upon Ex parte Delaney1 in seeking to undo his pre-sentence
waiver of appeal. But Delaney was a habeas case,2 and Appellant raises this issue on
direct appeal. In Washington v. State, this Court uncritically applied Delaney in a
1
207 S.W.3d 794 (Tex. Crim. App. 2006).
2
See id. at 795.
MASON DISSENT — 2
direct appeal,3 but I would now hold that to be a mistake. Properly viewed, Delaney
sets forth a presumption that 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.
In Delaney, the defendant pled guilty without a plea agreement, was placed
on deferred adjudication, and waived his right to appeal.4 The State later filed a
motion to adjudicate, alleging community-supervision violations.5 After he was
sentenced, the defendant sought permission to appeal from the trial court but was
denied.6 He later filed a habeas application claiming that his appellate waiver was
involuntary.7
In Delaney, this Court could have held that the waiver extended only to the
appeal from the imposition of deferred adjudication and not to the appeal from the
3
363 S.W.3d 589 (Tex. Crim. App. 2012).
4
Id. at 796.
5
Id.
6
Id.
7
Id.
MASON DISSENT — 3
adjudication proceeding.8 But it did not. Instead, the Court relied upon cases that
invalidated appellate-waivers prior to trial or sentencing.9 And ultimately, the
Court held that a non-negotiated pre-sentencing waiver implicated “the concern
that unanticipated errors may occur at the punishment phase of trial.”10
However, the Court did not purport to detail all the situations that might
allow for a pre-sentencing appellate waiver. Instead, the Court described the rule
in voluntariness terms: “in order for a pretrial or presentencing waiver of the right
to appeal to be binding at the punishment phase of trial, the waiver must be
voluntary, knowing, and intelligent.”11 With regard to plea bargains, the Court
then said, “One way to indicate that the waiver was knowing and intelligent is for
the actual punishment or maximum punishment to have been determined by a plea
agreement when the waiver was made.”12 In later cases, the Court would add to
8
See Hargesheimer v. State, 182 S.W.3d 906, 911 (Tex. Crim. App. 2006) (holding that the rule restricting the ability of a plea-bargaining defendant to appeal “extends only to appeals from the initial plea of guilty in exchange for deferred adjudication, and not to appeals from the proceeding on the motion to adjudicate guilt”).
9
Delaney, 207 S.W.3d at 797-99 (citing and discussing Ex parte Townsend, 538 S.W.2d 419, 420 (Tex. Crim. App. 1976), and Ex parte Thomas, 545 S.W.2d 469, 470 (Tex. Crim. App. 1977)).
10
Id. at 799.
11
Id.
12
Id. (emphasis added).
MASON DISSENT — 4
that “one way” any case in which the State furnished consideration for the
waiver.13
What these cases really show is that certainty as to punishment and
consideration for the waiver are ways to render a pre-sentencing appellate waiver
voluntary. They need not be exclusive. Other circumstances might also show a
voluntary pre-sentencing appellate waiver. Perhaps the defendant, with the advice
of counsel, accurately anticipated what the prosecutor would do at the sentencing
hearing (e.g., introduce evidence that was arguably hearsay). Or perhaps the
defendant acted as an entrepreneur in seeking out an appellate-waiver to reinforce
an acceptance-of-responsibility narrative.14
And because Delaney was a habeas case, the record could have been fully
developed. So even if the direct appeal record failed to show the existence of
consideration, for example, the State would have had the opportunity to show that
consideration was in fact given by the State for the appellate waiver.
But Washington turned what could have been construed as a presumptive
rule that applied when the record was fully developed into an absolute one that
13
Carson v. State, 559 S.W.3d 489, 495-96 (Tex. Crim. App. 2018).
14
Cf. Prystash v. State, 3 S.W.3d 522, 529-32 (Tex. Crim. App. 1999) (Defendant invited error by requesting that trial court not submit anti-parties special issue.).
MASON DISSENT — 5
applied even when the record was not fully developed. In Washington, the
defendant waived appeal after a plea of true to violations of deferred-adjudication
conditions but before sentencing.15 In a per curiam opinion spanning only two
short paragraphs, the Court cited Delaney and held, “But when a defendant waives
his right to appeal before sentencing and without an agreement on punishment, the
waiver is not valid.”16 The Court also observed that “the record does not confirm
that the State gave any consideration for Washington’s waiver.”17 Washington did
not even consider whether the undeveloped nature of the record should affect the
application of Delaney, nor did it consider the possibility that factors other than
consideration might render the non-negotiated waiver voluntary.
Allowing a defendant to squirm out of a waiver on an undeveloped record is
troubling. If there is the possibility that the State gave consideration or that other
factors would show that the waiver was knowing, intelligent, and voluntary, then an
appellate waiver should not be overturned. This Court’s treatment of ineffectiveassistance-of-counsel claims provides a ready analogy. “In the majority of
instances, the record on direct appeal is simply undeveloped and cannot adequately
15
363 S.W.3d at 589.
16
Id. at 589-90.
17
Id. at 590.
MASON DISSENT — 6
reflect the failings of trial counsel.”18 The same could be said for appellate-waiver
claims. Although ineffective-assistance claims involve a presumption in favor of
counsel,19 and the Delaney rule provides a presumption in the opposite
direction—in the defendant’s favor—it still seems appropriate not to invoke the
favorable presumption without giving the State the opportunity to rebut it.20 Just
as we would want to “provide an opportunity to conduct a dedicated hearing to
consider the facts, circumstances, and rationale behind counsel’s actions” for an
ineffective-assistance claim, we should want such a hearing to consider the facts,
circumstances, and rationale behind the defendant’s decision to waive appeal. And
just as we would want to afford counsel “an opportunity to explain his conduct
before being denounced as ineffective,”21 we should also afford the State the
opportunity to show that the appellate waiver was in fact knowing, intelligent, and
voluntary.
I prefer this Delaney-as-presumption approach to an approach that entirely
18
Thompson v. State, 9 S.W.3d 808, 813-14 (Tex. Crim. App. 2026).
19
Id. at 814.
20
Cf. Harris v. State, 738 S.W.2d 207, 227 (Tex. Crim. App. 1987) (“In order to afford the State an opportunity to rebut this presumption of harm, the issue of improper jury separation must be raised during trial or in a motion for new trial.”).
21
Hart v. State, 667 S.W.3d 774, 782 (Tex. Crim. App. 2023).
MASON DISSENT — 7
abrogates Delaney by treating future prosecutorial or judicial errors as “known
unknowns.” It is one thing to say that a defendant knowingly runs the risk that the
evidence will turn out differently than he thought or that the trial court might react
differently to evidence than he hoped. It is quite another to say he should
anticipate improper conduct by the State or by the trial court. If he bargains for
that, then he buys that risk with the consideration offered by the State. But
unilaterally giving the State the ability to engage in future improper conduct that
cannot be redressed would seem to be the height of naivete. And unilaterally
allowing for uncorrectable trial court mistakes seems not much better.
Consequently, it makes sense to presume the involuntariness of a considerationfree waiver of the appeal of a future proceeding. Giving the State the opportunity
to rebut that presumption would adequately protect the State’s interest in retaining
a valid waiver.
But the Court today treats the Delaney rule as an absolute one, silently
following Washington, while continuing to make the mistake of not addressing the
procedural difference between the posture of a case on habeas versus one on direct
appeal. And in doing so, the Court short-circuits a search for the truth, which
could be revealed in a full-blown post-judgment inquiry into the circumstances
MASON DISSENT — 8
surrounding the appellate waiver. With these comments, I respectfully dissent.
Filed: October 08, 2026
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