Court of Appeals of Texas, Third District, Austin
FROM THE DISTRICT COURT OF COMAL COUNTY, 433RD JUDICIAL DISTRICT NO. CR2012-019, HONORABLE DIB WALDRIP, JUDGE PRESIDING
ORIGINAL PROCEEDING FROM COMAL COUNTY
Before Chief Justice Jones, Justices Pemberton and Field
Scott K. Field, Justice
The State charged appellee Steve Villarreal, Jr. with three counts of sexual assault of a child. See Tex. Penal Code § 22.011(a)(2). Villarreal entered into a plea agreement with the State under which Villarreal agreed to plead guilty to one count of sexual assault in exchange for the dismissal of the other two counts. The trial court, however, placed Villarreal on deferred adjudication community supervision for one count of endangering a child and dismissed two of the sexual-assault counts. See id. § 22.041(c) (defining endangerment of a child).
In Cause Number 03-13-00423-CR, the State brings an appeal asserting that the trial court erred in dismissing two of the sexual-assault counts and in ordering that Villarreal be placed on deferred adjudication community supervision for endangering a child. See Tex. Code Crim. Proc. art. 44.01(a)–(b) (granting State right to appeal various orders and sentences). Alternatively, in Cause Number 03-13-00657-CV, the State petitions for a writ of mandamus, seeking an order from this Court instructing the trial court to withdraw its previous orders and either (1) enforce the plea agreement as written or (2) accept or reject the plea agreement. We conditionally grant the mandamus petition in part and dismiss the appeal as moot.
These charges stem from Villarreal's alleged sexual intercourse with a fourteen-year-old girl. See Tex. Penal Code § 22.011(a)(2), (c)(1) (defining various sexual acts with child younger than seventeen years of age as sexual assault). Following negotiations, the State and Villarreal entered into the plea agreement outlined above. The trial court conducted a plea hearing, during which it gave Villarreal the proper admonishments, including a recitation of the plea agreement. Following these admonishments, Villarreal pleaded guilty to one count of sexual assault of a child.
The trial court conditionally accepted the guilty plea, withheld accepting the plea agreement at that time, scheduled a later punishment hearing, and ordered a pre-sentence investigation report to be prepared. At the punishment hearing, the trial court made the following ruling:
I am going to find that although the evidence does substantiate your guilt to the offense in Count 1 [sexual assault of a child], I am going to defer any further findings on a lesser included offense pursuant to 22.041(c) of the Texas Penal Code, endangering a child, and place you on deferred adjudication for a period of 5 years for that . . . .
After this pronouncement, the following exchange occurred between the trial court and counsel for the State:
State: I'm a little confused as to what's going on.
Court: I'm deferring adjudication on a lesser included offense. What I'm finding under these circumstances is a lesser included offense. It's an open plea.
State: I'm not sure—I'm not sure that's within an open plea, Your Honor, if it's an open plea of guilty to a ...