### IN THE TENTH COURT OF APPEALS

No. 10

- 13

- 00413

- CR

JAMES EARL WILLIAMS
, Appellant

v.

THE STATE OF TEXAS
, Appellee

From the 54th District Court McLennan County, Texas Trial Court No. 2012

- 623

- C2

MEMORANDUM OPINION

A jury found James Earl Williams guilty of the June 12, 1998 murder of Darren

Lang and assessed an eighty

- five year sentence. His sole issue asserts that the trial court

erred by refusing to dismiss the indictment for the 1998 murder on the ground that it was

covered by a 2002 plea agreement in which the State allegedly agreed to refuse any other

unfil ed case that the State had notice of.

On December 2, 1998, Williams was indicted for the offenses of aggravated

robbery and aggravated assault. In a November 16, 2001 letter to Williams, Joe Layman,Williams v. State Page 2

Williams’s appointed attorney, s tated in part:

I am go ing to meet with Assistant District Attorney Mark Parker on Tuesday, November 20, 2001. Mr. Parker has been talking to me about an unfiled murder case. I want to look at the District Attorney’s files to see what kind of evidence they think that they have against you.

A November 20, 2001 letter from Mr. Layman to Williams also referenced talking

to Mr. Parker about “the unfiled murder case.”

On February 22, 2002, Williams pled guilty before the Honorable George Allen,

then

- judge of the 54th District Cou rt, to the offenses of aggravated robbery and

aggravated assault in exchange for a fifteen

- year sentence . The record from that plea

hearing includes the following colloquy:

THE COURT: And has there been a plea bargain entered into between the State and the defense?

MR. PARKER: Yes, Your Honor. The State’s agreed to recommend 15 years confinement in the penitentiary.

THE COURT: Is that your understanding of the plea bargain, Mr. Layman?

MR. LAYMAN: Yes, sir, in each case. And the State, um, is goi ng to refuse prosecution of any other case in which the State has notice, um

- -

MR. PARKER: That’s correct.

MR. LAYMAN:

- - unfiled cases.

MR. PARKER: That’s correct.

Williams’s argument is that the murder of Darren Lang was an unfiled case that

the State had notice of, and as such, the State is barred from prosecuting Williams for that

murder based on the above

.Williams v. State Page 3

In the trial court in the instant murder case, the State, in response to Williams’s

motion to bar the murder prosecution, filed the aff idavits of Mr. Layman and Mr. Parker,

both of whom were assistant district attorneys at the time of Williams’s murder trial . In

his affidavit, Mr. Parker states the following about the plea agreement he had negotiated

with Mr. Layman :

During plea negoti ations we had specifically agreed that the potential Murder charge from 1998 would not be taken into consideration in any form whatsoever with these pleas. There was no attempt to have the Murder charge taken into consideration under § 12.45 of the Texas Penal Code and the Defendant in no manner admitted or asked the court to take into account the Murder offense in determining the sentence for the offenses of which he had been adjudged guilty. The State of Texas at no time has filed any written statements stating that the State wished to dismiss the Murder offense.

In his affidavit, Mr. Layman states: “The plea agreements in these cases did not in

any way include consideration of an unindicted murder charge against Mr. Williams.” It

is undisputed that none of the plea documents refer to the murder charge.

Once a negotiated plea agreement is formally accepted by the trial court, a binding contractual relationship exists between the State and the defendant. Ortiz v. State, 933 S.W.2d 102, 104 (Tex. Crim. App. 1996); Wright v. State, 158 S.W.3d 590, 593

- 94 (Tex. App.

— San Antonio 2005, pet. ref’ d). The Texas Court of Criminal Appeals has written that a defendant is entitled to specific performance of a negotiated plea agreement once that plea agreement has been accepted by the trial court, unless, of course, specific performance is impractical; in such cases, the defendant should be permitted to withdraw his or her plea. Perkins v. Third Supreme Judicial Dist. of Tex., at Austin, 738 S.W.2d 276, 283 (Tex. Crim. App. 1987). Consequently, where the State or a trial court has refused to comply with a negotiated plea agreement (which has been previously accepted by that trial court), defendants have been able to successfully seek specific enforcement of the
ag reement, where practicable. See, e.g., id. at 277

- 78 & 285; Wright, 158 S.W.3d at 594

- 95. Such a maxim should be of equ al benefit to the State. See Ricketts v. Adamson, 483 U.S. 1, 9

- 12, 107 S.Ct. 2680, 97 L.Ed.2d 1 (1987) (Arizona entitled to seek prosecution of original charge of capital murder,Williams v. State Page 4

and seek death penalty, once defendant breached agreement to truthfully testify against codefendants).

Because a negotiated plea agreement is a contract between the parties, we generally turn to the rules applicable to contract construction to resolve disputes about the meaning of a negotiated plea agreement. See generally Ex parte Adkins, 767 S.W.2d 809, 810 (Tex. Crim. App. 1989). Contract construction is a matter of law. See Elliott

- Williams Co. v. Diaz, 9 S.W.3d 801, 803 (Tex. 1999). “A court’ s primary concern is to ascertain and give effect to the parties’ intentions as expressed in the instrument. ” Diaz, 9 S.W.3d at 803. “ Whether a contract is ambiguous is a question of law for the court to decide by looking at the contract as a whole in light of the circumstances present when the contract was entered.” Hawthorne v. Countrywide Home Loans, Inc., 150 S.W.3d 574, 577 (Tex. App.

— Austin 2004, no pet.) (citing Nat’ l Union Fire Ins. Co. v. CBI Indus., Inc., 907 S.W.2d 517, 520 (Tex. 1995)). “ Only when a contract is first determined to be ambiguous
may the courts consider the parties’ interpretation and consider extraneou s evidence to determine the true meaning of the instrument.” Hawthorne, 150 S.W.3d at 577 (citing Nat’ l Union Fire Ins. Co., 907 S.W.2d at 520).

Hatley v. State, 206 S.W.3d 710, 718 (Tex. App.

— Texarkana 2006, no pet.) (footnote

omitted).

We agree with the State that, at the very least, the phrase “any other case in which

the State has notice ... unfiled cases” is ambiguous. And given that the plea documents

do not refer to the murder charge, that Mr. Parker and Mr. Layman both state that th e

murder case was not included the plea agreement, and that the record reflects other

unfiled cases that the State had notice of that relate to the aggravated robbery and

aggravated assault charge s , 1 we hold that the trial court did not err in denying Williams’s

motion to dismiss the murder indictment.

1 The offense reports pertaining to the aggravated robbery and assault charge s reflect that Williams entered

a victim’s home and robbed him at gunpoint and shot another victim. A nine

- year

- old bystander allegedly was struck by a stray bullet and suffered a superficial wound. Williams was not charged with either criminal trespass or injury to a child, neither of which are lesser

- included offenses of the charged offenses of aggravated robbery and aggravated assault.Williams v. State Page 5

We overrule Williams’s sole issue. The trial court’s judgment is affirmed.

REX D. DAVIS Justice

Before Chief Justice Gray, Justice Davis, and Jus tice Scoggins (Chief Justice Gray dissents) Affirmed
O pinion delivered and filed July 30 , 2015 Do not publish [CRPM]