Opinion
14-20-00496-CR
12-14-2023
THE STATE OF TEXAS, Appellant v. SANITHA LASHAY HATTER, Appellee
On Appeal from the 230th District Court Harris County, Texas Trial Court Cause No. 1667833
Panel consists of Justices Jewell, Bourliot, and Hassan (Jewell, J., dissenting).
MAJORITY OPINION
Meagan Hassan Justice
The trial court granted Appellee Sanitha Lashay Hatter's "Motion for Specific Performance" and dismissed her charge for felony assault of a public servant. In this appeal, which returns to us after a remand from the Court of Criminal Appeals, we address issues unaddressed in our previous opinion: whether a promise of dismissal constitutes an enforceable plea bargain agreement and, if so, the terms of that agreement, whether either party breached the agreement, and whether Appellee was entitled to specific performance. See State v. Hatter, 665 S.W.3d 584, 595 (Tex. Crim. App. 2023). For the reasons below, we affirm the trial court's order dismissing the felony charge.
Background
In the underlying proceeding, an indictment was filed charging Appellee with felony assault of a public servant. See Tex. Penal Code Ann. § 22.01(b-2). In January 2020, the State filed a "Motion to Dismiss" requesting the trial court dismiss the felony charge. In the section of the motion entitled "Explanation," the State noted that it "reserves the right to refile." The trial court granted the motion to dismiss.
In March 2020, the State re-filed the felony assault charge against Appellee. Appellee filed a "Motion for Specific Performance" requesting that the trial court enforce the felony prosecutor's "promise of a dismissal." In support of her motion, Appellee asserted that the felony prosecutor made "several representations to the Defense that no refile would occur," including "multiple statements guaranteeing a dismissal of this case 'no matter what,' that the State and the Defense had a 'gentlemen's agreement,' and that the State promised to not refile the case against [Appellee]."
Appellee also filed an unsworn declaration by defense counsel. In relevant part, the declaration states:
The offer from the State to my client in our felony case was that in exchange for a plea of guilty in her Driving While Intoxicated case(s), her Assault of a Public Servant case would be dismissed. Another attorney represented [Appellee] on both of her misdemeanor cases. That attorney did not want to plea [Appellee] to her Driving While Intoxicated charges so that she could get a dismissal on her felony case. Because [Appellee's] felony disposition was contingent on her misdemeanor dispositions and her misdemeanor attorney's
unwillingness to negotiate a plea with that agreement, I felt [Appellee] was being treated unfairly.
I spoke on many occasions to the chief prosecutor on the felony case, Mr. James O'Donnell. Mr. O'Donnell understood the problem and unfairness surrounding the misdemeanor disposition affecting [Appellee's] felony disposition. After speaking to him on many occasions (of which I do not remember the dates), we were able to come to an agreement. Mr. O'Donnell agreed that regardless of the disposition of the misdemeanor Driving While Intoxicated cases, he would dismiss the felony Assault of a Peace Officer. He made multiple promises to me that he would not only dismiss the felony case regardless of the misdemeanor dispositions, but that he would promise to never re-file the felony case. He made this guarantee to me multiple times while in the 230th courtroom at 201 Caroline. . . . Mr. O'Donnell told me that he would give the reason of "other" on the dismissal and would write "subject to re-file" although he again promised that he would not do so and no one else would either.
Continuing on, defense counsel's declaration states that Appellee's misdemeanor charges were dismissed "because both of those cases contained faulty blood vials." Defense counsel asserted that, following these dismissals, O'Donnell's supervisors ordered him to re-file the felony charge against Appellee.
The trial court held a hearing on Appellee's motion in June 2020. Testifying at the hearing, O'Donnell said Appellee's felony case was set for trial prior to the disposition of her misdemeanor charges and the State offered to "dismiss the felony case if [Appellee] pled on the [misdemeanor] DWI cases." According to O'Donnell, at this time he was "under the impression that the DWI cases would be worked out" and "didn't feel it was appropriate to try [Appellee's] [felony] case when [he] had made the - extended the offer to dismiss the felony if [Appellee] had pled on the DWIs." In sum, O'Donnell expected "that there would be a plea which would effectively satisfy the terms of the agreement that we had extended to - that the State had extended to [Appellee]."
O'Donnell testified that he "remember[ed]" his discussions with defense counsel "regarding the case and that [he] would not re-file the case and that [he] would not instruct any of [his] prosecutors to re-file the case." O'Donnell said he could not recall "the exact words that were used" but "remember[ed] telling [defense counsel] that [his] intention was to dismiss the case and that it was not [his] intention to re-file this case." O'Donnell did not recall using the words "gentlemen's agreement" or "promise" in his conversations with defense counsel. At the time the felony charge was dismissed, O'Donnell said "the prosecutors in the misdemeanor court were in the process of evaluating their cases" against Appellee.
According to O'Donnell, it was not his decision to re-file the felony charge against Appellee; rather, that decision was made by O'Donnell's supervisors. O'Donnell said the complaining witness in the felony assault case "brought it to the DA's office's attention to re-file" the case.
After hearing the evidence and the argument of counsel, the trial court found O'Donnell to be "an honorable, forthright, and honest prosecutor"; it found defense counsel's declaration to be true and correct; and it found that O'Donnell promised to dismiss the case without re-filing but simply did not remember making that promise. The trial court granted the motion for specific performance and declared on the record that the case "is dismissed." On the signed order granting the motion, the trial court wrote, "State is ordered to dismiss."
We disagree with our dissenting colleague's assertion that this summary of the record constitutes a "gross[] overstatement]." See Dissenting Op. at 3. This summary accurately quotes the record from the hearing on Appellee's motion for specific performance.
The State filed both a direct appeal and a petition for writ of mandamus. In our majority opinion, we affirmed the trial court's order dismissing the felony charge and denied the State's petition for writ of mandamus as moot. See State v. Hatter, 634 S.W.3d 456 (Tex. App.-Houston [14th Dist] 2021), rev'd, 665 S.W.3d 584 (Tex. Crim. App. 2023). We reasoned that O'Donnell's exchange with defense counsel constituted an enforceable immunity agreement. See id. at 461-63. Justice Jewell dissented, concluding that the trial court's order granting Appellee's motion for specific performance was in error. See id. at 463-470.
The Court of Criminal Appeals reversed our judgment and remanded the case. See Hatter, 665 S.W.3d at 584. Holding that "the agreement between Appellee and the State was in the nature of a plea bargain agreement - not an immunity agreement," the Court of Criminal Appeals "remand[ed] this matter to the court of appeals to determine whether the trial court's order may be sustained by a theory of law applicable to this case." Id. at 586.
Analysis
We turn to the remaining issue as narrowed by the Court of Criminal Appeals: whether Appellee and the State entered into a plea bargain agreement that may be enforced on this record.
Plea bargains are an integral part of the criminal justice system. See Brady v. United States, 397 U.S. 742, 752 n.10 (1970); Gutierrez v. State, 108 S.W.3d 304, 306 (Tex. Crim. App. 2003) (en banc). "At its core, a plea bargain is a contract between the state and the defendant." Moore v. State, 295 S.W.3d 329, 331 (Tex. Crim. App. 2009). "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." Id.; see also Swanson v. State, 692 S.W.2d 548, 549 (Tex. App.-Houston [14th Dist.] 1985, no pet.) ("When a defendant agrees to the terms of a plea bargain agreement[,] he is deemed to have entered into the agreement knowingly and voluntarily. In effect he becomes a party to a contract, and both he and the state are bound to carry out each side of the bargain.").
Plea bargain agreements may contain a "wide variety of stipulations and assurances" that allow the State to tailor conditions in order to reach an agreement with the defendant. State v. Moore, 240 S.W.3d 248, 251 (Tex. Crim. App. 2007); see also, e.g., Banks v. State, No. 14-13-00971-CR, 2013 WL 6206278, at *1 (Tex. App.-Houston [14th Dist] Nov. 26, 2013, no pet.) (per curiam) (mem. op., not designated for publication) (under terms of plea agreement, the State agreed to dismiss one indictment in exchange for the appellant's guilty plea with respect to a second indictment); Rogers v. State, No. 14-01-01222-CR, 2002 WL15809, at *1 (Tex. App.-Houston [14th Dist.] Jan. 3, 2002, no pet.) (per curiam) (mem. op., not designated for publication) (under terms of plea agreement, the appellant pleaded guilty and waived his right to appeal in exchange for a six-year sentence). Trial courts have broad discretion in determining whether or not to accept a plea bargain agreement. State ex rel. Bryan v. McDonald, 662 S.W.2d 5, 9 (Tex. Crim. App. 1983) (en banc) ("the trial court remains free in every or any case to refuse to allow plea bargaining or to reject a particular plea bargain").
Once a trial court has accepted a plea agreement, it has a "ministerial, mandatory, and non-discretionary duty" to enforce the plea bargain it approves. Perkins v. Court of Appeals for the Third Supreme Jud. Dist. of Tex., 738 S.W.2d 276, 284-85 (Tex. Crim. App. 1987) (en banc). Once approved by the trial court, the defendant may insist on the benefit of his plea agreement with the State. Blanco v. State, 18 S.W.3d 218, 220 (Tex. Crim. App. 2000) (en banc). If the agreement can be enforced, the defendant is entitled to seek specific performance of its terms; if the agreement cannot be enforced, the defendant is entitled to withdraw his plea. Bitterman v. State, 180 S.W.3d 139, 143 (Tex. Crim. App. 2005).
General contract law principles apply to the review of issues involving the content of a plea agreement in a criminal case. Ex parte Moussazadeh, 64 S.W.3d 404, 411 (Tex. Crim. App. 2001), overruled on other grounds by Ex parte Moussazadeh, 361 S.W.3d 684 (Tex. Crim. App. 2012). We therefore look to the written plea agreement, if any, as well as the record of the underlying proceedings to determine the terms of the agreement and discern the parties' obligations. See id. at 411-12; see also, e.g., Gipson v. State, No. 06-20-00066-CR, 2020 WL 7702188, at *3 (Tex. App.-Texarkana Dec. 29, 2020, no pet.) (mem. op., not designated for publication) ("Since there is no written plea agreement, we must look to the formal record to discern the parties' intent regarding whether [the appellant's] guilty plea was the result of a plea agreement.").
A valid contract requires proof of the following: (1) an offer was made; (2) the other party accepted in strict compliance with the offer's terms; (3) the parties had a meeting of the minds on the contract's essential terms; (4) each party consented to those terms; and (5) the parties executed and delivered the contract with the intent that it be mutual and binding. USAA Tex. Lloyds Co. v. Menchaca, 545 S.W.3d 479, 501 n.21 (Tex. 2018). These elements are the same regardless of whether the contract is written or oral. Wal-Mart Stores, Inc. v. Lopez, 93 S.W.3d 548, 555 (Tex. App.-Houston [14th Dist] 2002, no pet.). The existence of an oral contract generally is a question of fact for the factfinder. See Ward v. Ladner, 322 S.W.3d 692, 698 (Tex. App.-Tyler 2010, pet. denied); see also Shaw v. Palmer, 197 S.W.3d 854, 856 (Tex. App.-Dallas 2006, pet. denied) ("Whether parties intended to enter into a binding contract is generally a question of fact.").
Turning to the present case, the parties did not cite - and our research did not find - any criminal cases with analogous facts, whereby the parties apparently reached an agreement but one party reneged on that agreement before the trial court's approval was secured. But read as a whole, we conclude the record supports finding that the trial court (1) approved the parties' plea agreement as it was described by Appellee's defense counsel and O'Donnell, and (2) ordered specific performance of that agreement.
In her "Motion for Specific Performance," Appellee asserted that the parties reached an agreement pursuant to which her felony assault charge would be dismissed in exchange for her guilty plea to the DWI charges. Appellee included an affidavit from her defense counsel reiterating this agreement between Appellee and the State.
At the hearing on the motion, the trial court heard testimony from O'Donnell regarding his conversations with Appellee's defense counsel. According to O'Donnell, the State offered to "dismiss the felony case if [Appellee] pled on the [misdemeanor] DWI cases" and "remember[ed] telling [defense counsel] . . . that it was not [his] intention to re-file the case." Evidencing his understanding that Appellee accepted the terms of the offer, O'Donnell testified that he was "under the impression" that Appellee would eventually plead guilty to the DWI charges. See Advantage Physical Therapy, Inc. v. Cruse, 165 S.W.3d 21, 26 (Tex. App.- Houston [14th Dist.] 2005, no pet.) ("To form a binding contract, the party to whom the offer is made must accept such offer and communicate such acceptance to the person making the offer."); see also Acceptance, Black's Law Dictionary (11th ed. 2019) ("An offeree's assent, either by express act or by implication from conduct, to the terms of an offer in a manner authorized or requested by the offeror, so that a binding contract is formed."). Similarly, in defense counsel's declaration (which also was admitted as an exhibit at the hearing on Appellee's motion), defense counsel stated that she had "come to an agreement" with O'Donnell that, "regardless of the disposition of the misdemeanor Driving While Intoxicated cases, [O'Donnell] would dismiss the felony Assault of a Peace Officer." Defense counsel said O'Donnell made "multiple promises" that not only would the felony case be dismissed but that he would "never re-file the felony case." O'Donnell testified that it was not his decision to re-file the felony charge against Appellee and that this decision was made by his supervisors.
Hearing this evidence, the trial court concluded: "[A] promise was made to dismiss this case no matter what. A dismissal was filed. A promise was made not to re-file. It was re-filed. And therefore, I'm granting this motion." These conclusions, in conjunction with the evidence before the trial court, show that the trial court found the requisite elements necessary to form a plea agreement and approved that agreement. See Brown v. State, No. 04-03-00006-CR, 2005 WL 1334354, at *3 (Tex. App.-San Antonio June 8, 2005, no pet.) (mem. op., not designated for publication) ("acceptance of a plea agreement can be done implicitly by the trial court simply implementing the agreement"); see also, e.g., Wright v. State, 158 S.W.3d 590, 594 (Tex. App.-San Antonio 2005, pet. ref d) ("We hold that the words used by Judge Chavarria, and the sequence of his actions, evidence his express acceptance and approval of the terms of the plea bargain agreement[.]"). This determination generally is left to the factfinder and, on this record, we conclude the trial court did not abuse its discretion in accepting the parties' plea agreement See State ex rel. Bryan, 662 S.W.2d at 9.
As our dissenting colleague points out, at the conclusion of the hearing on Appellee's motion for specific performance, the trial court stated, "I'm not sure [the prosecutor's promise] is a contract. I'm not sure that contract law is something we hear in here." See Dissenting Op. at 5. Our dissenting colleague then asks, "[h]ow is it the majority can reasonably construe these statements as an implicit finding that a contract was formed?" But as discussed above, we apply general contract law principles to issues involving the enforcement and content of plea agreements in a criminal case. See Ex parte Moussazadeh, 64 S.W.3d at 411; see also, e.g., Wright, 158 S.W.3d at 594-95. As the Court of Criminal Appeals recognized, the trial court's failure to apply the proper legal framework for this determination does not foreclose us from analyzing whether its subsequent enforcement of the prosecutor's promise of dismissal is correct under contract law principles. See Hatter, 665 S.W.3d at 588-89, 595.
The terms of the agreement were clearly delineated: in exchange for the dismissal of the felony charge, Appellee agreed to plead guilty to the two misdemeanor DWIs. This agreement was entered into by O'Donnell, who properly was acting as an agent of the State. See Expro Americas, LLC v. Sanguine Gas Expl., LLC, 351 S.W.3d 915, 924 (Tex. App.-Houston [14th Dist.] 2011, pet. denied) ("An agent acting within the scope of his apparent authority binds the principal as if the principal itself had taken the action."). The evidence before the trial court showed that the State, acting via other agents, breached these terms by re-filing the felony charge against Appellee. Therefore, fulfilling its "ministerial, mandatory, and non-discretionary duty" to enforce the plea bargain it approved, the trial court did not err by enforcing these terms and ordering the dismissal of Appellee's felony charge. See Perkins, 738 S.W.2d at 284-85.
Arguing against this conclusion, the State asserts that Appellee "sought to use a fluke in the trial court scheduling process and the felony prosecutor's sense of fairness to walk away scot free from multiple charges." Specific performance only is permissible, the State argues, when "the complaining party has fulfilled its contractual obligations."
But Appellee's failure to fulfill her contractual obligations does not rest with her - rather, it stems from the misdemeanor prosecutor's unilateral decision to dismiss Appellee's DWI cases. As the record shows, this action was taken without any involvement from Appellee or defense counsel. Accordingly, Appellee was prevented from holding up her end of the bargained-for agreement because the State made that performance impossible.
Resolution of this quandary is found with reference to general contract law principles. See Ex parte Moussazadeh, 64 S.W.3d at 411. Specifically, "when the obligation of a party to a contract depends upon a certain condition being performed, and the fulfillment of the condition is prevented by the act of the other party, the consideration is considered fulfilled." Danford Maint. Serv., Inc. v. Dow Chem. Co., No. 14-12-00507-CV, 2013 WL 6388381, at *9 (Tex. App.-Houston [14th Dist] Nov. 21, 2013, pet. denied) (mem. op.); see also Clear Lake City Water Auth. v. Friendswood Dev. Co., 344 S.W.3d 514, 519 (Tex. App.-Houston [14th Dist.] 2011, pet. denied) ("Generally, a party who 'prevents or makes impossible' the occurrence of a condition precedent upon which its liability under a contract depends cannot rely on the nonoccurrence to escape liability."); Tex-Craft Builders, Inc. v. Allied Constructors of Houston, Inc., 465 S.W.2d 786, 791 (Tex. App.-Tyler 1971, writ refd n.r.e.) ("where a party in whose favor something is to be done prevents that performance and the other party is not in default, a recovery may be had as if the act had been performed").
Here, Appellee's obligation - i.e., pleading guilty to the DWI charges - depended upon a certain condition, namely, being charged with those offenses. But the charges were dismissed before Appellee was presented with the opportunity to plead guilty, thus, preventing her performance. These charges were dismissed by the misdemeanor prosecutor who, like O'Donnell, operated as an agent of the State. See Expro Americas, LLC, 351 S.W.3d at 924. Accordingly, any consideration Appellee was required to provide to render the agreement enforceable was "considered fulfilled." See Danford Maint. Serv., Inc., 2013 WL 6388381, at *9.
In sum, given that trial courts have broad discretion in determining whether to accept a plea bargain agreement and that the existence of a plea agreement is an issue of fact (see State ex rel. Bryan, 662 S.W.2d at 9; Ward, 322 S.W.3d at 698), we conclude that the record does not show the trial court erred in granting Appellee's motion for specific performance. We overrule the State's sole issue on appeal.
Conclusion
We affirm the trial court's order granting Appellee's "Motion for Specific Performance."
DISSENTING OPINION
In a motion for specific performance, appellee Sanitha Lashay Hatter asked the trial court to enforce a prosecutor's promise to dismiss a felony case and not re-file it. Appellee argued that the prosecutor's unilateral promise was an enforceable contract. The trial court granted the motion. On appeal, a majority of this panel upheld the ruling but for a different reason, namely that the prosecutor's promise constituted an immunity agreement. I dissented. I and, on further appeal, the Court of Criminal Appeals, concluded that the prosecutor's promise was not an immunity agreement. The case returns to us with a directive to determine whether the trial court's order is correct under any other applicable legal theory, including whether there was an enforceable plea bargain agreement, and, if so, its terms, whether it was breached, and whether appellee is entitled to specific performance.
State v. Hatter, 634 S.W.3d 456 (Tex. App.-Houston [14th Dist.] 2021), rev'd, 665 S.W.3d 584 (Tex. Crim. App. 2023).
See Hatter, 665 S.W.3d at 595.
A first-tier appellate court should reject an appellant's claim of reversible error on direct appeal so long as the trial court ruled correctly based on any theory of law applicable to the case, even if the court did not purport to rely on that theory. This principle typically does not require the prevailing party to have explicitly raised the alternate theory in the trial court, but we will not rely on this rule to affirm unless the record is sufficiently well-developed to support a correct ruling under the alternate theory.
See, e.g., id. at 586 (citing Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990)); State v. Esparza, 413 S.W.3d 81, 85 (Tex. Crim. App. 2013).
See Hatter, 665 S.W.3d at 594 (no record support for immunity agreement alternate theory); Esparza, 413 S.W.3d at 85 & n.17; see also Martin v. State, 620 S.W.3d 749, 759 (Tex. Crim. App. 2021) (alternate theory must be reasonably supported in record); State v. Ruiz, 581 S.W.3d 782, 785 (Tex. Crim. App. 2019); Carrasco v. State, 154 S.W.3d 127, 129 (Tex. Crim. App. 2005).
My colleagues in the majority conclude that the trial court's order is sustainable on the theory that appellee and the State formed a binding plea bargain agreement, an argument not raised in appellee's motion. I again disagree. Citing the motion for specific performance, the majority asserts that "the parties reached an agreement pursuant to which [appellee's] felony assault charge would be dismissed in exchange for her guilty plea to the DWI charges." According to the majority, "Appellee included an affidavit from her defense counsel reiterating this agreement between Appellee and the State." The terms of the agreement, the majority asserts, were "clearly delineated: in exchange for the dismissal of the felony charge, Appellee agreed to plead guilty to the two misdemeanor DWIs." The majority concludes that the record supports "finding" that "the trial court (1) approved the parties' plea agreement as it was described by Appellee's defense counsel and O'Donnell, and (2) ordered specific performance of that agreement." Because, in the majority's view, the evidence showed that the State breached the agreement, the majority holds the trial court did not abuse its discretion in granting the motion for specific performance.
Neither the panel majority nor the Court of Criminal Appeals has addressed the only argument appellee raised in her motion for specific performance: the prosecutor's unilateral promise was enforceable. For the reasons I stated previously, I believe appellee's unilateral promise theory has no merit and that the trial court could not have, under these circumstances, granted the motion based on this theory. Hatter, 634 S.W.3d at 466-70. While I sympathize and agree with appellee's point that prosecutors should be held to their words, the prosecutor's statement that he had no intention to re-file the felony case simply is not an assurance on which appellee could rely for purposes of enforcing the statement, given the circumstances.
We cannot affirm the trial court's order on the theory of a plea bargain agreement unless that theory has sufficient record support. Unfortunately, the majority grossly overstates the record.
Martin, 620 S.W.3d at 759; Ruiz, 581 S.W.3d at 785; Esparza, 413 S.W.3d at 85 & n.17; Carrasco, 154 S.W.3d at 129.
A plea bargain agreement is a contract between the State and the defendant.We consider the record in light of general contract law principles in determining whether a contract was formed.In Texas, plea bargain agreements are generally contemplated to be bilateral contractsA bilateral contract is one where each party makes non-illusory mutual promises
Thomas v. State, 516 S.W.3d 498, 501-02 (Tex. Crim. App. 2017); Moore v. State, 295 S.W.3d 329, 331 (Tex. Crim. App. 2009); see Ex parte Williams, 637 S.W.2d 943, 947 (Tex. Crim. App. 1982).
See Williams v. State, 502 S.W.3d 168, 170-71 (Tex. Crim. App. 2016); Ex parte Moussazadeh, 64 S.W.3d 404, 411 (Tex. Crim. App. 2001); Jenkins v. State, 495 S.W.3d 347, 350 (Tex. App.-Houston [14th Dist.] 2016, no pet.).
See Ramirez v. State, 89 S.W.3d 222, 226 (Tex. App.-Corpus Christi 2002, no pet.) (plea bargain agreement is a bilateral, not unilateral, contract); Ortiz v. State, 885 S.W.2d 271, 273 (Tex. App.-Corpus Christi 1994), aff'd, 933 S.W.2d 102 (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.").
See City of Houston v. Williams, 353 S.W.3d 128, 135 (Tex. 2011); Restatement of Contracts § 12 (1932).
The majority errs in concluding that the record includes evidence of all required contract elements and that the State is bound by any bilateral contractual obligation. At a minimum, the acceptance of an offer and mutual consent elements are lacking here. In other words, there is no evidence of mutual promises or an exchange of any kind. The majority's contrary conclusion is grounded on no trial court finding, no evidence, and no reasonable inference from the evidence.
Even a cursory review of the record supports my position. Without question, the State extended a plea offer to appellee, and the offer's terms are clear: the State would dismiss the felony charge of assaulting a peace officer in exchange for appellee pleading guilty to the DWI charges. Importantly, however, there exists no evidence that appellee ever accepted the offer, promised to plead guilty to either misdemeanor charge, or in fact pleaded guilty to any charge. In her declaration, appellee's felony defense counsel averred that the State extended the offer; but she was careful to avoid stating that appellee accepted the offer or made any promises. In fact, counsel stressed that appellee's attorney in the misdemeanor case refused to agree to have appellee plead guilty to the DWI charges. The reason the felony defense attorney believed appellee was being treated "unfairly" was because appellee's misdemeanor attorney was unwilling to plead guilty to the DWI charges. Additionally, she said the prosecutor promised to dismiss the felony case "regardless of the misdemeanor dispositions"-which indicates that appellee had not promised to plead guilty to the DWI charges and it did not matter whether she ever did. While counsel's declaration mentions an "agreement," counsel was clearly referring to the prosecutor's promises-and only the prosecutor's promises-as the "agreement." Accordingly, what the majority opinion erroneously characterizes as the parties' plea agreement is really only the State's plea offer. Counsel's declaration contains no assertion or evidence that appellee ever accepted the offer, consented to the terms, or made any mutual promise.
Nor does the evidence introduced at the motion for specific performance hearing establish the existence of a plea bargain agreement under contract principles. Much the contrary. The prosecutor testified that the plea offer remained on the table "throughout the pendency of the case," meaning that the offer had not been accepted. He was "under the impression" that appellee would eventually plead guilty to the DWI charges and thereby "effectively satisfy" the offer terms that had been extended. But that never happened. Further, the State's motion to dismiss the felony case, which was introduced into evidence, did not assert that the State sought to dismiss the case in accordance with a plea bargain agreement nor did it seek approval of any agreement. Appellee's counsel did not assert or present evidence that appellee had made any agreement or promise; she contended only that the prosecutor's promise was enforceable without any obligation, exchange, or undertaking on appellee's part. At the hearing's conclusion, the trial court judge did not find that a plea agreement existed; in fact, he said that he was granting the motion because it "is the honoring of the promise," which the court was "not sure is a contract. I'm not sure that contract law is something we hear in here." How is it the majority can reasonably construe these statements as an implicit finding that a contract was formed? Even if the court had implicitly found the parties reached a plea agreement, the record evidence plainly does not support such a finding.
Also of note are appellee's irreconcilably inconsistent positions on this topic. Appellee did not assert that a plea bargain agreement existed until she filed a supplemental brief in our court after remand from the Court of Criminal Appeals. Her new position is flatly contrary to her prior positions in the trial court and in this court. For example, in her motion for specific performance, she did not assert that a promise by appellee to plead guilty to the DWI charges was a part of any agreement. Rather, according to appellee, she was told that the State would dismiss and not re-file the felony case even if she did not plead to the DWI charges. In her motion and accompanying brief, appellee repeatedly requested the trial court to enforce the prosecutor's "promise." According to appellee, the prosecutor's statements alone constituted the "contract." Significantly, far from relying on any purported plea bargain agreement, she urged directly that this case did not involve "a promise of a plea bargain." (Emphasis added). Later, in appellee's first brief filed in our court, she again characterized her motion for specific performance as seeking to enforce the State's "promise of dismissal." Not once did she suggest that she and the prosecutor had in fact formed an enforceable plea bargain agreement.
The majority claims that appellee accepted the prosecutor's plea offer and cites the prosecutor's testimony that he was under the impression that appellee would eventually plead guilty to the DWI charges. Notably, the majority does not explain with record references how appellee supposedly accepted the plea offer-by promise or performance. The prosecutor cannot accept for her, and his subjective expectation-hope, even-that she would eventually accept by pleading guilty cannot support the existence of a completed bilateral contract consisting of mutual non-illusory promises. It is undisputed that the record contains no evidence that appellee ever promised or agreed to plead to the DWI charges. The record is firmly to the contrary because her misdemeanor counsel was unwilling to plead guilty to them.
Like any contract, a plea bargain agreement between the State and a criminal defendant requires more than an offer by one party; it requires mutual acceptance of, and consent to, the essential terms. Those elements are absent here. If appellee desired to rely on a plea bargain agreement to support her request for specific performance, she had the burden to prove it by showing the existence and breach of an enforceable plea agreement. She failed to support her motion with evidence of an agreement and in fact argued against the existence of a plea bargain. Having failed to satisfy her burden, the trial court could not have properly granted her motion on this alternative legal theory.
See Esparza, 413 S.W.3d at 88.
The trial court's order is unsupportable on a plea bargain agreement theory for other reasons as well. Plea bargain agreements are unlike ordinary contracts in at least one important way. Even if the State and a defendant agree on material terms, no binding obligations exist on either party unless and until the court approves the proposed agreement.And the approval or rejection must take place in open court. "The 'contract' does not become operative until the court announces it will be bound by the plea bargain agreement."The Court of Criminal Appeals has therefore stated that the trial court is a "necessary" party to the contract.
See Absolon v. State, 460 S.W.3d 158, 162 (Tex. Crim. App. 2015); Moore, 295 S.W.3d at 331; Bitterman v. State, 180 S.W.3d 139, 142 (Tex. Crim. App. 2005); Ortiz v. State, 933 S.W.2d 102, 104 (Tex. Crim. App. 1996).
See Moore, 295 S.W.3d at 332 (citing Tex. Code Crim. Proc. art. 26.13(a)(2) ("[T]he court shall inquire as to the existence of any plea bargaining agreements between the state and the defendant and, in the event that such an agreement exists, the court shall inform the defendant whether it will follow or reject such agreement in open court and before any finding on the plea.")).
Ex parte Williams, 637 S.W.2d at 947.
Ortiz, 933 S.W.2d at 104.
The majority's willingness to recognize some kind of implied approval of a plea agreement-like its antecedent holding that an agreement exists-finds support in neither evidence nor law. There is absolutely no indication in this record that any purported plea bargain agreement was proffered to the trial court, much less approved. No testimony at the hearing indicated that the trial court was told that appellee had agreed or promised to plead guilty to the DWI charges (or that she had already done so). Accordingly, the court did not announce, and could not have announced, that it approved any such agreement and would dismiss the felony charges at the State's request in accordance with any plea agreement. The court's statements rather demonstrate that the court's ruling was intended to enforce the prosecutor's promise alone; the court said nothing about whether appellee had promised to plead guilty to other charges in exchange for the felony dismissal. Nor could we reasonably infer court approval of a plea bargain agreement given the state of the record and the trial court's statements quoted above, even if the code did not require court approval of a plea bargain agreement to be announced in open courtAppellee has no contractual right to demand specific enforcement of a purported agreement that has never been "entered into" or become operative.
See Ex parte Williams, 637 S.W.2d at 943.
I will revisit one additional point given the majority's re-framing of the issue on remand as whether "a promise of dismissal constitutes an enforceable plea bargain agreement." To the extent my colleagues intend to suggest that a binding plea bargain agreement exists under unilateral contract principles, they are incorrect. As I mentioned, Texas courts have characterized plea bargain agreements as bilateral in nature. Presuming that a binding plea bargain agreement also may be created under unilateral contract law in Texas, no enforceable obligation was created here.
Texas continues to recognize unilateral contract principles as part of state common law. A unilateral contract is created "when a promisor promises a benefit if a promisee performs."As the supreme court has explained, "[t]he requirement of mutuality is not met by an exchange of promises; rather, the valuable consideration contemplated in 'exchange for the promise is something other than a promise,' i.e., performance."There is only one promisor, and the promisee accepts and gives consideration by performance. A promisor's promise in a unilateral contract setting does not become enforceable until the promisee performs When the promisee delivers the bargained-for performance, the promisor then becomes bound to provide the promised benefitUnless the promisee performs the act or acts requested by the promisor, there is no binding unilateral contract.
City of Houston, 353 S.W.3d at 136.
Id. at 135-36; Vanegas v. Am. Energy Servs., 302 S.W.3d 299, 303 (Tex. 2009).
City of Houston, 353 S.W.3d at 136 (citing Restatement of Contracts § 12 cmt. a (1932)).
See id.; 1 Richard A. Lord, Williston on Contracts §§ 1.17, 1:18 (4th ed. 2007) (hereinafter, "Williston").
City of Houston, 353 S.W.3d at 136; Vanegas, 302 S.W.3d at 303; Williston, § 1:18.
Dodson v. Stevens Transp., 776 S.W.2d 800, 805 (Tex. App.-Dallas 1989, no writ).
Sunshine v. Manos, 496 S.W.2d 195, 198 (Tex. App.-Tyler 1973, writ ref'd n.r.e.).
The record shows irrefutably that appellee never pleaded guilty to either DWI charge. Thus, there is no evidence that appellee ever performed. There being no performance-hence no acceptance and no consideration-no unilateral contract was created. In dicta-and tacitly acknowledging that appellee did not perform- the majority contends that the State prevented appellee from "fulfilling her contractual obligation" because it dismissed the DWI cases, which made performance "impossible." Though stating that performance was impossible, the majority inconsistently asserts that dismissal of the DWI charges "fulfilled" a "condition" of the agreement. The majority's point is unclear, given that on the one hand the majority has concluded, based on O'Donnell's testimony, that appellee "accepted;" but now on the other, the majority has deemed acceptance "impossible."
In any event, I agree that acceptance became impossible once the State dismissed the DWI charges. Contrary to the majority's view, however, that event did not complete a contractual bargain; rather, it terminated the outstanding plea offer. Termination of an offer for a unilateral contract occurs when the thing required for performance is destroyed before acceptance In the unilateral contract setting, moreover, it is irrelevant that the State dismissed the DWI charges because only the State may offer a plea bargain, and it is free to withdraw or terminate the offer any time before the promisee performs and before court approvalOnce the DWI charges were dismissed, the outstanding plea offer necessarily was terminated and off the table The majority errs in relying on inapplicable cases involving whether a party to an executed contract performs a condition stated in the contract to the other party's satisfaction.
See Restatement of Contracts §§ 35 (offer may be terminated by destruction of thing essential for performance), 49 ("Where a proposed contract requires for its performance the existence of a specific person or thing, and before acceptance the person dies or the thing is destroyed, the offer is terminated unless the offeror assumes the risk of such mischance.").
See Absolon, 460 S.W.3d at 162; Moore, 295 S.W.3d at 331-32; Sunshine v, 496 S.W.2d at 198; see also Vanegas, 302 S.W.3d at 303 (offer for unilateral contract may be withdrawn any time before performance).
See Angel v. Tauch, 642 S.W.3d 481, 489 (Tex. 2022) (recognizing indirect termination of an offer when offeree receives reliable information that offeror has taken definite action inconsistent with an intention to enter into the proposed contract); Restatement of Contracts § 35 (revocation by offeror will terminate offer). The record demonstrates that appellee knew the DWI cases had been dismissed; therefore, at a minimum, an implied termination of the offer is effective. See Tauch, 642 S.W.3d at 489.
Some courts outside Texas have applied unilateral contract principles to determine whether an enforceable plea bargain agreement was created Diaz-Colon provides one illustrative and compelling example similar to the present facts and supportive of my positionThere, the government submitted a proposed plea agreement to the court, which stated that the parties had reached an agreement with regard to the defendant's guilty plea. But the proposed plea agreement was signed only by the government's attorneys. The plea agreement did not contain bilateral promises or an explicit promise by the defendant Diaz to do anything-thus, the court construed it as an offer by the government for a unilateral contract. Before court approval, the government sought to withdraw its offer based on new evidence. The defendant objected to the government's withdrawal and requested specific performance of the plea agreement. The court held that no enforceable unilateral contract had been created because the defendant had not performed. "[U]ntil the defendant actually performs by entering his change of plea and the Court accepts such plea, either party, including the government, is free to withdraw from the plea agreement."The court rejected a contention almost identical to appellee's theory asserted in her motion for specific performance in the trial court: "the mere fact that the parties were in negotiations of a plea agreement, without actual performance by defendant, does not create a 'constitutional right to have that bargain enforced.'"
E.g., United States v. Papaleo, 853 F.2d 16, 19 (1st Cir. 1988); Gov't of the V.I. v. Scotland, 614 F.2d 360, 364 (3d Cir. 1980); United States v. Diaz-Colon, 794 F.Supp.2d 353 (D. Puerto Rico 2011); State v. Collins, 265 S.E.2d 172, 176 (N.C. 1980); see also Shields v. State, 374 A.2d 816, 820 (Del. 1977) ("We hold that the State may withdraw from a plea bargain agreement at any time prior to, but not after, the actual entry of the guilty plea by the defendant or other action by him constituting detrimental reliance."); accord State v. Dillon, 398 N.W.2d 718, 720 (Neb. 1987) (same).
Diaz-Colon, 794 F.Supp.2d at 354.
Id. at 354.
Id. (citing Papaleo, 853 F.2d at 19).
The trial court's ruling is not supportable on the theory that an enforceable plea bargain agreement existed and was approved by the court. This court should reverse the trial court's order and remand the case. Because the majority fails to do so, I respectfully dissent.
Kevin Jewell Justice