Opinion
13-21-00437-CR
01-10-2022
IN RE THE STATE OF TEXAS EX REL. LUIS V. SAENZ
Do not publish. Tex.R.App.P. 47.2 (b).
On Petition for Writ of Mandamus.
Before Hinojosa, Tijerina, and Silva, Justices
MEMORANDUM OPINION
See TEX. R. APP. P. 52.8(d) ("When denying relief, the court may hand down an opinion but is not required to do so. When granting relief, the court must hand down an opinion as in any other case."); id. R. 47.4 (distinguishing opinions and memorandum opinions).
Relator, the State of Texas ex rel. Luis V. Saenz, the County and District Attorney of Cameron County, Texas, filed a petition for writ of mandamus asserting that the trial court erred by rejecting a plea agreement and sentencing the defendant to a term inconsistent with the plea agreement over relator's objection and despite relator's demand for a jury trial. We conditionally grant the petition for writ of mandamus in part and deny it in part as stated herein.
This original proceeding arises from trial court cause number 2021-DCR-233-B in the 138th District Court of Cameron County, Texas, and the respondent is the Honorable Gabriela Garcia. See id. R. 52.2.
I. Background
Brownsville police officers arrested real party in interest Jonathan G. Ortegon after Ortegon was found sleeping in his parked car adjacent to the gas pumps at a Stripes convenience store. The police searched Ortegon and his vehicle and found, among other items, one 45.4-gram ball of cocaine, numerous single baggies of cocaine weighing a total of 28.7 grams, one pill of MDMA, multi-tool pocketknives, a brush, and a scale. In two counts, relator charged Ortegon with the first-degree felony offense of the manufacture or delivery of a controlled substance (count one) and the state jail felony offense of possession of a controlled substance (count two). See TEX. PENAL CODE ANN. §§ 481.112(d), 481.112(a).
MDMA is methylenedioxymethamphetamine, also known as the drug Ecstasy.
On October 26, 2021, Ortegon completed a "Written Waiver and Consent to Stipulation of Testimony, Waiver of Jury, and Plea of Guilty." This document references both count one and count two of the indictment and states that Ortegon "affirm[s] to the Court that there has been no plea agreement in this case except as follows: In exchange for a plea of guilty, the state recommends 8 years TDC probated for 8 years on count I. State to dismiss count II." This pleading was signed by Ortegon and a representative of the State, and the trial court "accept[ed] the Defendant's plea of Guilty." Thus, relator and Ortegon entered into a plea agreement wherein relator would dismiss count two of the indictment if Ortegon pleaded guilty to count one, and Ortegon would be sentenced to eight years imprisonment in the Texas Department of Criminal Justice-Institutional Division, with the sentence to be suspended and Ortegon to be placed under community supervision for eight years.
On November 30, 2021, the trial court held a hearing on sentencing. At the hearing, the trial court opened the proceedings by stating that: "I see that Mr. Ortegon has no priors, really, except for a misdemeanor. I am inclined to place him on deferred adjudication, so I am not following the plea bargain recommendation. Is there a problem with that?" Neither Ortegon nor his counsel objected. The court further noted that Ortegon "has to realize that if I place him on deferred adjudication[, ] he's looking at the full range of punishment, which is 5 to 99 or life." At this point, the State interjected, and the following colloquy occurred:
Prosecutor: This case dealt with a large amount of drugs, Your Honor, over 40 grams.
Court: I understand. I understand. But that's what I am saying. I am inclined to defer the finding of guilt, but he is now going to be facing 5 to 99 years or life.
Prosecutor: That's understood, Your Honor, but if that's the case, the agreement that was reached with counsel that was the State's understanding-if the Court does not want to accept that then the State would retract its offer.
Court: Okay. Well, I'm not going to follow-
Prosecutor: It's a first[-]degree felony, Your Honor, and it is a large amount of narcotics.
Court: I completely understand. I read the presentence report, I am well aware of it. But because he has no priors, I am going to- I am not going to adjudicate him guilty. I am going to place him on deferred adjudication, but I will do it for ten years.
Prosecutor: The State would be in objection to that, Your Honor, and for that reason, we'd reserve our right to trial-
Court: Okay. Well, I understand that, but-
Prosecutor: -and also to provide an opportunity to staff this case with Mr. Saenz. But I'm under specific instruction for first degree felonies that this is not a deferred case, and if Your Honor so chooses to offer deferred, then in that case the State reserves its right to trial.
Court: Well, Mr. Ortegon then has every right to enter a cold plea to this Court.
Prosecutor: Yes, Your Honor, and the State has every right to exercise its right to trial if the plea agreement is not honored by the Court.
Court: . . . I am not going to follow the recommendation of the State. I am going to defer the finding of guilt. I'm going to place Mr. Ortegon-
Prosecutor: Your Honor, the State is reserving its right to trial.
Court: I am going to place-he already [pleaded] guilty.
Prosecutor: If the plea agreement is not followed, Your Honor, the State has the same right as the defendant to exercise its right to trial.
Court: No.
Prosecutor: The plea agreement reached between both of the parties was right before the Court. If the Court doesn't follow it then the State has its right to withdraw its-
Court: Okay. Then appeal me. I am going to defer the finding of guilt on Mr. Ortegon. I am going to place him on ten years deferred adjudication . . . .
Article 1.13 of the Texas Code of Criminal Procedure provides that:
The defendant in a criminal prosecution for any offense other than a capital felony case in which the state notifies the court and the defendant that it will seek the death penalty shall have the right, upon entering a plea, to waive the right of trial by jury, conditioned, however, that, except as provided by Article 27.19, the waiver must be made in person by the defendant in writing in open court with the consent and approval of the court, and the attorney representing the state. The consent and approval by the court shall be entered of record on the minutes of the court, and the consent and approval of the attorney representing the state shall be in writing, signed by that attorney, and filed in the papers of the cause before the defendant enters the defendant's plea.TEX. CODE CRIM. PRO. ANN. art. 1.13(a); see State ex rel. Curry v. Carr, 847 S.W.2d 561, 562 (Tex. Crim. App. 1992) (orig. proceeding) (per curiam) (holding that the trial court "did not have the discretion to serve as a factfinder . . . absent the consent and approval of the State as prescribed by Art. 1.13(a), supra, to the accused's waiver of jury trial").
The trial court thereafter verbally assessed Ortegon a $500 fine payable within one year, ordered Ortegon to pay court costs and a probationary fee, ordered Ortegon to submit to random testing for alcohol and drugs, referred Ortegon for alcohol and drug evaluation, ordered Ortegon to attend any counseling or treatment deemed necessary, and made further orders relative to the case. At this point, the State further interjected:
Prosecutor: . . . And, then, for the record, just the State's objection is that the plea agreement was not followed, therefore, the State's reserving its right to trial.
So[, ] this was not a cold plea, Your Honor. It was a plea that was taken, a PSI was ordered, and the Court did not choose to follow the plea agreement, as it has discretion to. . . .
Court: I think it is the exclusive right of the defendant to enter a plea of guilty or not guilty, and if Mr. Ortegon so chooses to enter a plea of guilty, there doesn't have to be a recommendation from the State[, ] and he can leave the sentencing up to the Court.
Prosecutor: But that was not the case here, Your Honor. The case was that an agreement was reached by both parties[, ] so this is different from a cold plea.
Court: So[, ] do you want Mr. Ortegon-
Prosecutor: Had we gone to-
Court: Listen to me. Do you want Mr. Ortegon to withdraw his plea of guilty and enter a cold plea?
Prosecutor: Your Honor, this has nothing to do on the part of the defendant. You're right to say that the defendant has a full right to enter his plea of guilt, but what is shared with the State is the State has the full right to reserve its right to trial if the Court chooses not to go and agree with the agreement made amongst the parties in the plea agreement.
So[, ] this is different from a cold plea, Your Honor, because had I self-consciously gone into the cold plea with counsel, then that's different. I trust that whatever decision is made by the Court then we're going to go forward with it. That's what's done in a cold plea. But this situation is different because this was a plea agreement reached by the parties.
So had this been a cold plea we'd be in a different position[, ] and you'd be allowed to do deferred and I couldn't back out of it. But that was not the case here. The agreement was reached with both parties. We go forth to the Court and you choose to go with the plea agreement or not.
Court: Well, I'm choosing not to and let me tell you why. I've read the presentence report and that's what aids this Court in making its decision.
Mr. Ortegon is a young man, he has no prior felonies, and I am extending an opportunity to Mr. Ortegon to be placed on deferred and not-and not ruin his life because he's so young. I am taking all of that into consideration[, ] and that's why I deferred the finding of guilt and placed him on deferred adjudication for ten years.
As a matter of fact, the defendant has every right to say, no, Judge, you're not following the plea agreement and that's why I admonished him-
Prosecutor: And the State respects that-
Court: -that if I do not accept the plea bargain, it is his choice to withdraw his plea of guilty and enter a plea of not guilty and go to trial. That is his choice.
Prosecutor: And it's also the same rights reserved to the State, Your Honor, in terms of plea agreements.
Court: Okay. So[, ] this is what I'll do.
Prosecutor: And I do respect the Court's discretion and what you're having to say about this matter, however, we're talking about two different things.
This was not a cold plea. Had it been a cold plea then I would not have the opportunity to retract-
Court: [Ortegon's counsel], does your client want to withdraw his plea of guilty in this case?
Defense: No, Your Honor. We do not want to withdraw the plea and we do accept the Court's changing of the agreement. We did have an agreement for probation because we asked for deferred and it was denied because it was a first degree, but in my conversation with my client, he asked me to see if he was going to get a record and I had to say you're going to have to get a record . . . .
The trial court thereafter informed the prosecutor that the court found it "somewhat hypocritical" of the State that in a previous case, the State had recommended deferred community supervision in a case involving a guilty plea on a first-degree felony. The prosecutor responded that the "facts around each case are very different and taken on a case-by-case basis." After further discussion, the trial court reiterated "[t]hat's the ruling . . . of the Court. Appeal me."
This original proceeding ensued. By two issues, relator asserts: (1) the trial court has the duty to accept or reject a plea agreement entered into by a criminal defendant and the State; and (2) if the trial court rejects a plea agreement, the trial court has a duty to set the underlying criminal matter for a trial on the merits. By order issued on December 10, 2021, this Court requested that Ortegon, or any others whose interest would be directly affected by the relief sought, file a response to the petition for writ of mandamus. See Tex. R. App. P. 52.2, 52.4, 52.8. Ortegon's counsel has subsequently informed this Court that Ortegon would not be filing a response to the petition for writ of mandamus.
II. Mandamus
To be entitled to mandamus relief, the relator must establish both that the act sought to be compelled is a ministerial act not involving a discretionary or judicial decision that that there is no adequate remedy at law to redress the alleged harm. See In re Meza, 611 S.W.3d 383, 388 (Tex. Crim. App. 2020) (orig. proceeding); In re Harris, 491 S.W.3d 332, 334 (Tex. Crim. App. 2016) (orig. proceeding) (per curiam); In re McCann, 422 S.W.3d 701, 704 (Tex. Crim. App. 2013) (orig. proceeding). If the relator fails to meet both requirements, then the petition for writ of mandamus should be denied. State ex rel. Young v. Sixth Jud. Dist. Ct. of Apps. at Texarkana, 236 S.W.3d 207, 210 (Tex. Crim. App. 2007) (orig. proceeding).
"An act is purely ministerial if the relator has a clear and indisputable right to the relief sought, i.e., when the facts and circumstances of the case dictate but one rational decision under unequivocal, well-settled, and clearly controlling legal principles." In re Yeager, 601 S.W.3d 356, 358 (Tex. Crim. App. 2020) (orig. proceeding); see In re State ex rel. Ogg, 618 S.W.3d 361, 363 (Tex. Crim. App. 2021) (orig. proceeding). "In some cases, a remedy at law may technically exist; however, it may nevertheless be so uncertain, tedious, burdensome, slow, inconvenient, inappropriate or ineffective as to be deemed inadequate." Smith v. Flack, 728 S.W.2d 784, 792 (Tex. Crim. App. 1987) (orig. proceeding) (en banc); see In re Medina, 475 S.W.3d 291, 297 (Tex. Crim. App. 2015) (orig. proceeding).
III. Plea Bargains
The Texas Court of Criminal Appeals has explained the plea-bargaining process as follows:
Plea bargains are an integral part of the criminal justice system. At its core, a plea bargain is a contract between the state and the defendant. As a contract, once both parties have entered knowingly and voluntarily into a plea bargain, they are bound by the terms of that agreement once it is accepted by the judge. Plea agreements may contain a wide variety of stipulations and conditions that allow the state to tailor conditions in order to reach agreement with the defendant.
The only proper role of the trial court in the plea-bargain process is advising the defendant whether it will 'follow or reject' the bargain between the state and the defendant. If the trial court accepts a plea-bargain agreement, the state may not withdraw its offer. If the trial court rejects the plea-bargain agreement, the defendant is, as a matter of right, allowed to withdraw his guilty plea, and the state may then withdraw its offer.
Only the state may offer or withdraw a plea bargain. Because a plea-bargain agreement is solely between the state and the defendant, only the state and the defendant may alter the terms of the agreement; the trial court commits error if it unilaterally adds un-negotiated terms to a plea-bargain agreement.
A trial court may conditionally agree to follow a plea-bargain agreement, but only by delaying the unconditional acceptance or rejection of the agreement until after the condition of acceptance has been fulfilled. If, after a conditional acceptance of a plea bargain, the trial court rejects the plea-bargain agreement, the court must still allow the defendant the opportunity to withdraw his guilty plea.Moore v. State, 295 S.W.3d 329, 331-32 (Tex. Crim. App. 2009) (internal citations omitted); see TEX. CODE CRIM. PRO. ANN. art. 26.13(a)(2) (providing in relevant part that "the court shall inquire as to the existence of a plea bargain agreement between the state and the defendant and, if an agreement exists, the court shall inform the defendant whether it will follow or reject the agreement in open court and before any finding on the plea"); Absalon v. State, 460 S.W.3d 158, 162 (Tex. Crim. App. 2015) ("However, if the court rejects the agreement, the defendant is then allowed to withdraw his guilty plea and the State may then withdraw its offer."); see also Salazar v. State, 630 S.W.3d 151, 156 (Tex. App.-Eastland 2020, no pet.); Jones v. State, 600 S.W.3d 94, 101 (Tex. App.- Dallas 2020, pet. ref'd), cert. denied, 141 S.Ct. 880 (2020); Torres v. State, 587 S.W.3d 503, 508 (Tex. App.-Houston [14th Dist.] 2019, pet. ref'd).
IV. Analysis
In two issues, relator asserts that the trial court had the duty to accept or reject the plea agreement entered between the State and Ortegon, and because the trial court rejected the plea agreement, relator was entitled to a jury trial. We begin by examining the circumstances surrounding the trial court's consideration of the plea agreement.
At the hearing, the trial court rejected the plea agreement, elected to defer a finding of guilt, and placed Ortegon on ten years of deferred adjudication supervision. Relator objected to this procedure, requested to withdraw the plea agreement, and requested a jury trial. The trial court refused these requests, overruled relator's objections, and invited relator to appeal its decision.
In the petition for writ of mandamus, relator asserts that the trial court rejected the plea agreement and elected to defer a finding of guilt for eight years and placed Ortegon on eight years of deferred adjudication supervision. Based on our review of the transcript of the sentencing hearing, the trial court instead imposed a ten-year period of deferred adjudication supervision. This discrepancy is not material to our analysis.
As stated previously, the trial court bears a limited role when refusing plea bargains. In short, "only the state and the defendant may alter the terms of the agreement," the trial court's "only proper role" in the plea-bargain process is to advise the defendant whether it will accept or reject the plea bargain, and if the court rejects the plea agreement, the defendant has the right to withdraw his guilty plea, and the State has the right to withdraw its offer. See Moore, 295 S.W.3d at 332. "The trial court has no authority to participate in plea-bargain negotiations, and it is reversible error for the trial court to insert additional, non-negotiated terms into a plea bargain." State v. Villarreal, 418 S.W.3d 920, 925 (Tex. App.-Austin 2013, no pet.) (combined app. & orig. proceeding) (citing Moore, 295 S.W.3d at 331-32); see Sherwood v. State, 340 S.W.3d 929, 932 n.1 (Tex. App.-El Paso 2011, no pet.) (recognizing that a trial court may not "alter the terms" of a plea agreement by allowing the defendant to appeal certain matters when the defendant expressly waived all rights to appeal as part of his agreement with the State); Costilow v. State, 318 S.W.3d 534, 537 (Tex. App.-Beaumont 2010, no pet.) ("The role of the trial judge is to follow or reject the agreement, not to modify its terms."). "[W]hen a plea bargain is not kept, the proper relief is either specific enforcement of the agreement or withdrawal of the plea, depending upon the requirements of the circumstances in each case," and "[t]his applies to both the State and the defendant." Ex parte Williams, 637 S.W.2d 943, 947 (Tex. Crim. App. 1982) (orig. proceeding); see In re C.F.P., 388 S.W.3d 326, 329 (Tex. App.-El Paso 2012, no pet.).
Here, Ortegon and the State entered into a plea agreement in which Ortegon agreed to plead guilty to count one in exchange for the State's recommendation of eight years of incarceration probated for eight years and the State's dismissal of count two. Based on the foregoing colloquy at the sentencing hearing, the trial court affirmatively rejected this plea bargain agreement and instead placed Ortegon on deferred adjudication for a period of ten years. As indicated at the hearing, Ortegon's counsel acknowledged that the trial court's ruling was different from the plea agreement Ortegon had reached with the State.
The trial court had a "ministerial duty to either accept or reject the agreement without modification." See Villarreal, 418 S.W.3d at 927; see also Moore, 295 S.W.3d at 332. "[O]nly the state and the defendant may alter the terms of the agreement." See Moore, 295 S.W.3d at 332. Based on this record, we conclude that the trial court rejected the plea agreement and instead impermissibly modified the agreement by unilaterally changing the terms of the plea agreement. See id. In these circumstances, the State had the right to withdraw the plea agreement. See id.
Because the trial court failed to perform its ministerial duty to either enforce or reject the plea agreement, mandamus relief is appropriate. See Villarreal, 418 S.W.3d at 927 ("Because the trial court failed to perform its ministerial duty to either enforce or reject the plea agreement, we conclude that the State is entitled to mandamus relief."). Further, relator lacks an adequate remedy by appeal to address this error. See TEX. CODE CRIM. PRO. ANN. art. 44.01 (delineating the State's right to appeal in criminal cases); In re State ex rel. Best, 616 S.W.3d 594, 600 (Tex. Crim. App. 2021) (orig. proceeding) (discussing the adequacy of a remedy at law in the context of article 44.01); State ex rel. Mau v. Third Ct. of Apps., 560 S.W.3d 640, 648 (Tex. Crim. App. 2018) (orig. proceeding) (discussing the State's inability to appeal an order regarding deferred adjudication community supervision). Accordingly, we sustain relator's first issue asserting that the trial court had a ministerial duty to accept or reject the plea agreement.
In relator's second issue, he asserts that if the trial court rejects a plea agreement, the trial court has a duty to set the underlying criminal matter for a trial on the merits. Relator does not support the second issue with argument or authority, and we note that the resolution of this issue is dependent on contingent future events, including whether or not any further agreements are made and accepted. See In re Rodriguez, 409 S.W.3d 178, 180 (Tex. App.-Beaumont 2013, orig. proceeding) (per curiam) (concluding that it would be premature to issue mandamus when the issues depended on contingent events and future matters); In re Kuster, 363 S.W.3d 287, 290 (Tex. App.-Amarillo 2012, orig. proceeding) ("[T]o the extent that [relator's] petition seeks mandamus relief based upon events that have not yet occurred and remain merely hypothetical, we conclude that we are without jurisdiction to render advisory opinions on factual situations that may or may not arise in the future."). In these circumstances, we overrule relator's second issue.
V. Conclusion
The Court, having examined and fully considered the petition for writ of mandamus and the applicable law, is of the opinion that relator has met his burden to obtain relief. Accordingly, we lift the stay previously imposed in this case. See Tex. R. App. P. 52.10(b) ("Unless vacated or modified, an order granting temporary relief is effective until the case is finally decided."). We conditionally grant the petition for writ of mandamus, in part, as stated herein. We direct the trial court to vacate its orders of November 30, 2021, and we order the trial court to either accept or reject the plea agreement that was reached by the State and Ortegon. We are confident that the trial court will act promptly in accordance with this opinion, and our writ will issue only if the trial court fails to comply. We deny the petition for writ of mandamus as to all other relief requested.