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In re Pierce

Court of Appeals of Texas, Tenth District

October 2, 2019

IN RE ORLANDO DEONTE PIERCE

          Original Proceeding

          Before Chief Justice Gray, Justice Davis, and Justice Neill

          OPINION

          JOHN E. NEILL JUSTICE.

         In two separate petitions for writ of mandamus, relator, Orlando Deonte Pierce, challenges the trial court's orders on motions to enforce a plea bargain in both proceedings. Specifically, relator contends that the trial court unlawfully rescinded a plea-bargain agreement; that the trial court had a ministerial duty to approve a plea bargain in these cases to remedy a violation of effective counsel; and that a prior trial judge would have accepted the plea before a second attempt at rescission by the State. For the reasons outlined below, we deny relator's petitions for writ of mandamus.

         I. Background

         In these proceedings, relator was charged by indictment with the offenses of aggravated assault and violation of a protective order, family violence. As indicated in relator's mandamus petitions, on August 27, 2018, the Robertson County District Attorney's Office conveyed a plea offer to relator's court-appointed counsel. According to relator, the offer was, in exchange for his plea of guilty to both felonies, relator would receive punishment of fifteen years' prison time for the aggravated-assault allegation and ten years' prison time for the violation of a protective order, family violence, allegation with the sentences to be served concurrently. The prosecutor indicated that the plea offer was available only for one week. During the following week, relator spoke with his appointed counsel and expressed a desire to accept the plea offer. However, appointed counsel did not convey relator's acceptance of the plea offer until a day after the prosecutor's deadline for accepting the offer passed. Prior to appointed counsel's attempt to accept the plea offer, the prosecutor informed appointed counsel, via facsimile, that the offer had been withdrawn and that any attempt to accept at this time was too late. The prosecutor replaced the aforementioned plea offer with one of forty years' prison time in exchange for relator's plea of guilty to both felony allegations.

         Thereafter, on May 10, 2019, relator moved the trial court to "enforce the plea agreement," arguing that the trial court should enforce the plea offer made by the prosecutor for fifteen years' and ten years' prison for the two charges with the sentences to run concurrently. Relator argued that he "should not be punished more severely, solely due to the failure of defense counsel to convey defendant's acceptance of the plea agreement to the District Attorney in a timely fashion." The trial court initially granted the request to reopen the plea negotiations and further stated that any plea agreement reached between the prosecutor and relator would be considered by the court at a later date. The trial court did not accept or reject any plea at this time.

         After the trial court's ruling, relator tried again to accept the prosecutor's original offer of fifteen years' and ten years' prison time for the two charges with the sentences to run concurrently. However, before the purported agreement could be approved by the trial court, the State revoked the plea, stating that the withdrawal was due to "newly discovered evidence" that relator committed a new offense of violation of a protective order on or about February 26, 2019. Subsequently, the trial court denied relator's motion to enforce the plea agreement, stating that there was no agreement to "specifically perform." The mandamus record does not contain a certified or sworn copy of this order, which is the basis of these original proceedings.

         II. Standard of Review

         In a criminal mandamus, the relator must show that he has no adequate remedy at law and what he seeks to compel is a ministerial act. Bowen v. Carnes, 343 S.W.3d 805, 810 (Tex. Crim. App. 2011); see State ex rel. Young v. Sixth Judicial District Court of Appeals, 236 S.W.3d 207, 210 (Tex. Crim. App. 2007). An act is ministerial if relator can show a clear right to the relief sought. Bowen, 343 S.W.3d at 810. A clear right to relief is shown when the facts and circumstances dictate but one rational decision under "unequivocal, well-settled (i.e., from extant statutory, constitutional, or case law sources), and clearly controlled legal principles." In re State ex rel. Weeks, 391 S.W.3d 117, 122 (Tex. Crim. App. 2013). Mandamus is not available to compel a discretionary act as distinguished from a ministerial act. See State ex rel. Holmes v. Denson, 671 S.W.2d 896, 899 (Tex. Crim. App. 1984). However, a "discretionary" act can become "ministerial" when the facts and circumstances dictate but one rational decision. In re State of Tex., 162 S.W.3d 672, 675 (Tex. App.-El Paso 2005, orig. proceeding) (citing Buntion v. Harmon, 827 S.W.2d 945, 948 n.2 (Tex. Crim. App. 1992)).

         III. Analysis

         "A plea agreement is a contractual arrangement. Until all of the necessary parties agree to the terms of the contract, the agreement is not binding." Ortiz v. State, 933 S.W.2d 102, 104 (Tex. Crim. App. 1996).

A plea bargain consists of three parts: a plea of guilty, the consideration for it, and the approval by the court of the agreement. The bargain is the consideration exchanged to the defendant for the plea of guilty. In order for the contract to be binding, the trial judge must approve and accept both aspects of it. When presented with a plea bargain, the court has the right to accept or reject it; however, it may not hold the defendant to his plea of guilty while rejecting the benefit the defendant was to receive. If the court does not approve the entire agreement, the defendant must be allowed to withdraw his plea of guilty."

Ortiz v. State, 885 S.W.2d 271, 273 (Tex. App.-Corpus Christi 1994), aff'd, 933 S.W.2d 102 (Tex. Crim. App. ...


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