### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-13-00423- CR

The State of Texas, App ellant

v. Steve V illarreal, Jr., A ppellee

F ROM TH E DISTRI CT COURT O F CO MAL CO UNTY, 433 RD JUDICI AL DISTRICT NO. CR2012 -01 9, H ONO RAB LE DIB WALDRIP , JUDGE P RESIDING

NO. 03-13-00657- CV

In re The State of Texas, ex re l. Jennif er Tharp

ORI GINAL P ROCEEDI NG F ROM CO MAL CO UNTY

O P I N I O N

The S tate charg ed appellee St eve Villarreal , J r. wi th three counts of sex ual assault of a child. See Tex. Penal C ode § 22.011(a) (2). Villar rea l entere d into a plea ag ree ment with the State under which Villarre al ag ree d to plead g uilty to one count of sexual assault in exchange for the dismiss al of the other two coun ts. The trial court, howeve r, place d Villarre al on defe rre dadjudication community supervisio n for one count of endang ering a child and dismiss ed two of

the sexual-assault counts. See id. § 22.041(c) (def ining e ndang erme nt of a c hild). I n Cause Number 03-13-00423- CR, the State bring s an ap p eal asser ting that the trial court err ed in dismiss ing two o f t h e s ex ual-a ssault counts and in order ing that Villarre al be place d on defe rre d adjudication co m munity supervision for endang ering a child. See Tex. Code Crim. Proc. art. 44.01(a) –(b) (g ranting State rig ht to appea l various order s and sentenc es). Alternatively , in Cause Number 03-13-00657 -C V, the State petitions for a writ of mandamus,

s eeking an order from this Court instructing the trial court to withdraw its previous o rd er s an d either (1) enfor ce the plea ag reem en t as written or (2) acc ept or reje ct the plea ag ree ment. We conditionally

g rant the ma

ndamus petition in part and dismiss the appea l as moot.

BACK GR OUND These char g es stem from Villarre al’s alleg ed sexual intercou rs e wi t h a fourtee ny ear -old g irl. See Tex. Penal Code § 22.011(a) (2), (c) (1) (def ining various sexual acts with child y oung er than sevente en y ear s of ag e as sexual assault). Following neg otiations, the S t at e an d Villarre al enter ed into the plea ag ree ment outlined above. The trial court conducte d a plea hear ing, during which i t gave Villarre al the proper admonishments, including a rec itation of the plea ag ree ment. Following these admonishments, Villarre al pleade d guilty to one count of sexual assault of a c hild.

2The trial court conditionally acc ep t ed the g uilty plea, withheld acc epting the plea

a gr e e me nt a

t th a t ti me , s c h e d

u le d a la te r p u n is hme nt h e a

r in g , a n d o r d e r e d a p r e - s e nte n c e in v e s ti g a ti o n repor t to be prepa

red. At the punishment hear ing, the trial court made the followingruling : 1

I am g oing to f

ind that although the evidenc e does substantiate y our g uilt to the offe nse in Count 1 [sex ual assault of a child], I am g oing to defe r any further finding s on a lesser included offe nse pursuant to 22.041(c) of the Texas Penal Code, endanger i n g a child, and place y ou on defe rre d adjudication for a per iod of 5 y ear s for that . . . .

After this pronouncement, the f ollowing e x chang e occ urre d betwee n the trial court and counse l for the State:

State: I ’m a little confuse d as to what’s g oing on. Court: I ’m defe rring adjudication on a lesser included offe nse. What I ’m finding u nder these circ umstances is a lesser included offe nse. I t’s an open ple a. State: I ’m not s u re —I ’m not sure that’s within an open plea, Your Honor, if it’s an o pen plea of g uilty to a particula r offe nse. That’s my

conce rn.

. . . .

Prior to the punishment hear ing, Villarre al, counsel for the State, and the trial court signe d 1 a document entitled “Admonishments, Voluntary Statements, Waivers, Stipul ati o n s , J udicial Confession & Plea Ba

rg ain Ag ree ment.” Although this document rec ites the t er m s o f the plea ag ree ment, the trial court’s signature indicates only that it was acc epting Villarre al’s g uilty plea, not that the court actua lly

convicted V illarrea l or ac cepte d the t erms of the pl ea ag ree ment. See Ortiz v. Stat e , 933 S.W .2d 102, 104 (T ex . Crim. App. 1996) (conc luding that trial court’s “ac cepta nce” of g uilty plea without ruling on plea agree ment is eff ectively conditional acc eptanc e subject to final decision); see also Holland v. State , 112 S.W .3d 251, 255 n.2 (Tex. App.—Austin 2003, no pet.) (“It wo u l d h av e b ee n err or for the court to find appellant g uilty without first announcing whether it would follow the neg otiated plea a g ree ment.”). 3Court: I ’m either g oing to follow this line, or my point is, I ’m jus t g oing to r ejec t the plea, be cause it’s just so— State: Iunderstand.

. . . . State: The second thing I want to do is be sure that’s a lesser included offe nse, beca

use I ’m not sure it is. And I understand what you’re trying to do, but—

. . . . Court: Absent t he open plea, y ou know, I might h av e t o ag ree with y ou . . ., it might not be, but with the open plea and with the candid d i s cu ssion betwee n defe nse counsel, y our other assistant, and my self, I think it’s cer tainly susceptible to that under t h ese circ umstances. The third option would be a torpedo, so—

After some additional d i s cu s s ion, the S tate objected t o the t rial court’s proposed orders, asserting that the ruling was inconsistent with the plea agree ment. The trial court overr uled the State’s objection, place d Villarreal on defe rre d adjudication community supervision for endang ering a child, and dismiss ed two o f t h e co u n t s of sexual assault of a child. This appea l and mandamus petition followed.

DISCUSSIO N

The State filed its appea l, asser ting that (1) the trial court err ed in dismiss ing the two counts of sexual assault and (2) the trial court’s order placing Villarre al on defe rre d adjudication for endang erme nt of a child is an illega l sentenc e. See Tex. Code Crim. Proc. art. 44.01(a) (1) (g ranting State rig ht to appea l order d ismissing portions of indictment), 44.01(b) (g ranting State rig ht to appea l

4sentenc e on g round that sentenc e is illega l). Pending dispositi on of the appea l, the State reque sted,

and this Court ordere d, a stay of the trial c ourt proce eding s. See id. art. 44.01(e ). The State now c oncede s that an orde r plac ing a defe ndant on def err ed adjudication community supervision is not a sentenc e, and thus the State does not have the rig ht to challeng e by appea l the trial court’s order placing Villarre al on defe rre d adjudication for endang ering a child. See id. art. 44.01(a ) (listing those orders that the S tate may challeng e by appea l). There fore , the S tate h as withdrawn its second appellate issue and has filed its petition for writ of mandam u s . I n t h e mandamus petition, the State seeks an order from this Court compelling the trial court to withdraw its previous order s and either (1) enfor ce the terms of the neg otiated plea ag ree ment or (2) acc ept or reje ct the neg otiated plea a g ree ment. The State e ffe ctively seeks the sa

me re lief—enf

orce ment of the plea barg ain—by

mandamus that it seeks on a ppeal. We will there fore focus the r emainder of our discussion on whether the State is entitled to mandamus relief

. To be entitled to a writ of mandamus in a criminal case , a relator must de monstrate t h at (1) she has no adequa te reme dy at law and (2) what she seeks to compel is a minist er i al ac t

. See In re State ex rel. W

eek s , 391 S.W .3d 117, 122 (Tex. Crim. App. 2013). Even though a reme dy at law may “tec hnically exis t,” a party may be entitled to mandamus relief if the reme dy is so “unce rtain, tedious, burdensome, slow, inconvenient, inappropriate, or ineffe ctive as to be deeme d inad equate .” Gree nwall v. Court of Appeals of the Thirt eenth Judicial Dist. , 159 S.W .3d 645, 648–49 (Tex. Crim. App. 2005) (interna l quotations omitted); see a l s o In re State ex rel. W

eek s , 391 S.W .3d at 123. An act is minist eria l “whe n the fac ts and circ umstances dictate but one rational decision under unequivoca l, well-settled

. . ., and clea rly controlling leg al principles” such that the

5relator has a clea r rig ht to the relief soug ht. In re State ex rel. W eek s , 391 S.W .3d at 122–23 (interna l quotations omit ted). We will examine in turn whether the State has met these two r equire ments. No adequate re m edy at law

The State asser

ts that it has no adequate reme dy at law beca use it cannot enfor ce the terms of the plea barg ain throug h an appeal

. S p ec ifically , the State claims that beca use the trial court’s order placing Villarre al on defe rre d adjudication is not a final sentenc e from which the State

can appea l, it cann o t rec eive the benef it of its barg ain with Villarre al. Whether the State has an adequate reme dy at law to enfor ce the terms of a plea ag ree ment is a question of first impression in this Court. One of our sister courts of appea ls, howeve r, has addre ssed a simil ar issue and conclude d t h at the S tate lacked an adequate remedy at l aw when t he trial court failed t o adher e to the terms of a plea barg ain. See In re State of Tex. , No. 08-12-00165- CR, 2013 WL 634581, at *3–4 (Tex. App.—El Paso Fe b. 20, 2013, orig

. proce eding ) (not desig nated for publication). In that case , the trial court purported to acc ept the defe ndant’s plea barg ain with the State, place d the defe ndant

on defe rre d adjudication community s u p er v ision for ag g rava ted assault, but ref

used to make an aff irmative dead l y -we apon finding as specific ally require d by the plea barg ain. Id. at *1–2. The appellate co u rt ex p lained that “[i] t is undisputed that the State cannot appea l the order placing [defendant] on defe rre d adjudication. Thus, the State ha s shown that it does not ha ve an adequate

reme dy at law.” Id. I n this case , the State h as t he rig ht to appea l the trial court’s order dismiss ing two

o f t h e sexual-assault counts ag ainst Villarre al, and thus the State can challeng e cer tain aspe ct s o f t he trial court’s ruling via appea l. See id. art. 44.01(a) (1). Howeve r, the State has no mea n s o f 6appea ling the trial court’s order placing Villarre al on defe rre d adjudication community supervision

for endang ering a child. See In re State of Tex. , 2013 WL 634581 at *3. Thus, even if we wer e to

reve rse the trial court’s order dismiss ing two of the sexual-assault counts, the State would not rec eive the bene fit of its plea ag ree ment beca use it would not secure an adjudication for sexual assault. 2 At most, if we reve rsed the trial court on appea l and reinstated the two sexual-assault counts, Villarre al might see k t o ei t h er enfor ce or withdraw from the plea barg ain. This could potentially return the State to the position of eff ectuating its plea barg ain. Howeve r, it is uncer tain that Villarre al would actua lly seek such relief and, even if he did, it is uncer tain that the State would

rec eive the benef

it of i ts plea a g ree ment. There fore , we conclude that the S tate lacks an adequate

reme dy at law in this case . See Gree nwall , 159 S.W .3d at 648–49 (noting that even though l ega l

reme dy technica lly exis ts, reme dy may be too uncer tain or ineffe ctive to be adequate reme dy at law). The State has satisfied the first element for mandamus relief , and we proce ed to deter

mine whether the State see ks to compel a pure ly minist eria l act. Id.

Ministerial act

As noted above , mandamus re lief will issue only to compel a tria l court to perf orm a pure ly minist eria l act. See id. A trial cour t’s act is ministerial if, under the fa cts of the c ase a

nd

The Stat e as s er t s that one of its objectives in enter ing into this plea agree ment was to 2 ensure that—reg ardle ss of whether Villarre al wa s place d on defe rre d adjudication community supervision or c o nv ic te d o f sexual assault—Villarre al would be require d to reg ister as a sex offe nder. See Tex. Code Crim. Proc. art 62.001(5)( A) (def ining conviction or adjudication, including defe rre d adjudication, for various sexual offe nses as “re p o rt ab l e conviction or adjudication” for which acc used i s require d to reg ister as sex offe nd er ). An adjudication for endang ering a child does not require Villarre al t o reg ister as a sex offe nder, and thus the S tate contends t h at it has not rec eived th e b e n e f it o f it s b a r g a in

. S e e id

. a r t. 6 2

. 0 0 1 ( 5 ) ( li s ti n g o f

f e n s e s th a t r e q u ir e s e x- o f

f e n d e r r e g is tr a

ti o n )

. 7the controlling leg al principles at issue, the relator has a clea r rig ht to the relief soug ht. In re State

ex re l. W eek s , 391 S.W .3d at 122–23. “The require ment of a c lear leg al rig ht nece ssitates that the law plainly descr ibes the duty to be perf ormed such that t h er e is no room for the exercise of discretion.” W

inters v. Presiding Judgeof the Crim. Dist. Court No. T hree , 118 S.W .3d 773, 775 (Tex. Crim. App. 2003).

I t is a well-settled principle of criminal law that “a plea barg ain is a contra ct betwee n the state and the defe ndant,” and “only t h e s t at e an d t h e defe ndant may alter the terms of the agre ement.” Moore v. State , 295 S.W .3d 329, 331–32 (Tex. Crim. App. 2009). The trial cou rt ’s

o n l y role in the pl ea- barg ain process is to advise the defe ndant whether i t will acc ept or reje ct t he plea barg ain. Id. at 332. I f the c ourt ac cepts the ple a bar g ain, the State cannot withdraw its offe r, and the parties are entitled to specific perf ormanc e of the barg ain. See id. ; see also Perkins v. Court of Appeals for the Third Supr emeJudicial Dist. of Tex., at Austin , 738 S.W .2d 276, 283–84 (Tex. Crim. App. 1987). I f the court reje cts the plea barg ain, the defe ndant has the rig ht to withdraw his g uilty plea, and then t he S tate has the right to withdraw i t s o ff er. See Moore , 295 S.W .3d at 332. The trial court has no authority to pa rticipate in plea- barg ain neg otiations, and it is reve rsible err or for the tr ial court to insert a dditional, non-neg otiated terms into a plea barg ain. See id. Villarre al asser

ts that the trial court did not alter the terms of the plea ag ree ment, but rathe r acte d within its wide discretion to deter mine the appropr iate judgme nt under the “open” plea. Specifica lly , Villarre al claims that beca use the p lea barg ain stated that his g uilty plea to sexual assault was open, the trial court had the discreti o n not only to deter mine punishment, but also to deter mine the offe nse for

which Vill arr eal would be sentenced. Thus, acc ording to Villarrea l, the

8trial court mer ely acc epted the plea ba

rg ain and a cted within its discretion in placingVillarre al on defe rre d adjudication community supervision for endang ering a child. Under the circ umstances of the pre sent ca se, we find this argument unpersua sive.

First, the plain lang uag e of the plea ag ree ment indicates that Villarre al would plead g uilty to and be adjudicate d for sexual assault of a child. See Ex parte De Leon , 400 S.W .3d 83, 89 (Tex. Crim. App. 2013) (noting that courts “apply g ener al contra ct-law principles to deter mine the intended content of a plea ag ree ment,” looking to written ag ree ment and formal rec ord to deter mine its terms). The plea ag ree ment states that it is an “Ope n Plea to Count I Only ,” and admonished Villarre al that if he was convicted he could be sentenc ed for a second -d egr ee felony , consistent with a conviction for sexual assault of a child. Under the section titled “PL EA AGREEMENT AND SENTENCI

NG RECOMMENDATI ON,” the ag ree ment indicates that in exchang e for Villarre al’s g uilty plea to sexual assault of a child, the State would rec ommend that Villarre al g et cre dit for time

serve d and the State would dismiss the remaining coun t s . However, the parties did not chec k the box indicating that Villarre al could be prosec uted for a lesser- included offe nse, and nowher e in the plea ag ree ment do the parties sug g est that Villarre al could be adjudicate d of some other offe nse not included in the indictment. Thus, althoug h the agree ment indicates that it is open as to punishment, there is nothing with i n t h e fo u r co rner s of t he plea agree ment to indicate that the parties intended the pl ea to allow adjudication for any offe nse the trial c ourt believe d appropr iate. See id. (noting 3 that court will not imply

plea- barg ain term unless ne cessa ry to effe ctuate pa

rties’ intent).

Villarre al has not pointed us to any case that supports his interpre tation of an “open” plea. 3 9Second, Villarre al’s asser tion that in an “open” pl ea barg ain, the trial court has complete discretion to adjudicate a defe ndant on any offe nse would lead to an absurd result. Under Villarre al’s theory , by enter ing into an open g uilty pl ea as t o p unishment, both the defe ndant and the State must acc ept an a djudication for a ny offe nse t hat does not exceed the max imum sentence of the offe nse char g ed, reg ardle ss of whether the acc used’s g uilty plea would support that adjudication or whether the adjudication is consistent with the indictment. T h i s result would run afoul of long- standing prec edent reg arding notice provided by the indictment and sufficie ncy of the evidenc e. See generally Byrd v. State , 336 S.W .3d 242, 246 (Tex. Crim. App. 2011) (discussing due proc ess re quirements for sufficie ncy

of evide nce a

nd notice provide d by

indictment). The trial court’s order in this case is inconsistent with Villarre al’s plea and the indictment. As the State corr ectly notes, endang ering a child is not a lesser- in cl u d ed offe nse of sexual assault of a child as char g ed in this case . See Tex. Penal Code §§ 22.011, 22.041. Gene rally , an offe nse is a lesser- included offe nse to the offe nse char g ed if it can be proven by the same or less than all the fac ts require d to establish the offe nse char g ed. See Tex. Code Crim. Proc. art. 37.09(1). I n this case , Villarre al was char g ed with sexual as sault by intentionally or knowing ly causing the penetr ation of the fema le sexual org an of a ch i ld with his sexual org an. Endang erme nt of a child, by contra st, require s proof that an acc used “intentionally , knowing ly , rec k l es sly , or with criminal negli gence . . . eng ag es in conduct that place s a child

. . . in imminent dang er of death, bodily injury , or phy sical or mental impairment.” Tex. Penal Code § 22.041(c)

. Thus, endang erme nt of a child require s proof of an additional element—the alleg ed conduct must place a child in dang er of some harm. See Crippen v

. State , 368 S.W .3d 630, 632 (Tex. A pp.—Eastland 2012, pet. ref ’d)

10(conc luding that injury to c hild is not le sser-inc luded offe nse of ag g ravated sexual a ssault of child beca use sexual assault of child does not require proof of injury). Given that endang erme nt of a child is not a lesser- included offe nse of the sexual assault of a child in this case , neither Villarre al’s g uilty plea nor the indictment supports adjudication for that offe nse. See B

yrd , 336 S.W .3d at 246. Ba sed on the plain lang uag e of the plea barg ain, we conclude that the parties intended for Villarre al to plead g uilty to and be adjudicate d for one count of sexual as s au l t o f a child in exchang e for the State’s rec ommendation that Villarre al g et cre dit for time serve d and dismiss al of t h e re m aining two counts of sexual assault of a child. See Ex parte De Leon , 400 S.W .3d at 8 9 (noting interpre t plea barg ain like contra ct). The trial court had no authority to alter the terms of this ag reem en t , and thus the trial court clea rly abused its discretion by placing Villarre al on defe rre d adjudication community supervision for a separ ate offe nse. See Moore , 295 S.W .3d at 332 (noting trial court lacks authori ty to alter terms of pl ea barg ain). Be cause the t rial court failed to perf orm its minist eria l duty to either enfor ce or reje ct the plea ag reem en t , we conclude that the State is

e nti tl e d to ma

n d a mu s r e li e f

. S e e id

. ; s e e a ls o P e r

k in s , 7 3 8 S. W. 2 d a

t 2 8 5 ( c o n c lu d in g th a

t ma n d a mu s relief appropr iate to compel e nforc ement of ple a bar g ain). The S tate asserts that the t rial court acc epted the plea ag ree ment, and therefor e the State is entitled to spe cific enfor ceme nt of its ba rg ain. See Moore , 295 S.W .3d at 332 (noting that if trial court acce pts plea barg ain, defendant enti tled to enfor ceme nt of i ts terms). Thus, the S tate reque sts that we order the trial court to assess punishment for one count of sexual assault. Although

an argument can be made that the trial court conditionally acc epted the plea barg ain during the initial plea hear ing, see supra n.1, the court’s comments at the punishment hear ing indicate that it did not

11acc ept the plea ag ree ment as written. When a sked by counsel for the State whether it a cce pted the

plea ag ree ment, the trial court stated “Well, I ’m acc epting his plea of g uilty .” The court repe atedly indicated that if it could not place Villarre al on deferr ed adjudication community supervision for endang eringa child, it would reje ct the plea ag ree ment. Ba sed on this rec ord, we conclude that the trial court has neither acc epted nor reje cted the plea agree ment at this time; instead, the trial court impermissibly modified the ag ree ment. The trial court has a minist eria l duty to e ither acc ept or reje ct the ag ree ment without modification. See Moore , 295 S.W .3d at 332. Thus, we conditionally g rant the State’s petition for writ of mandamus in part, order the trial court to wi t h d ra w i t s order s placing Villarre al on defe rre d adjudication community supervision for endang ering a child and dismiss ing two of the sexual-assault counts , and order the trial court to either acc ept or reje ct the neg otiated plea ag ree ment as agr ee d to by Villarre al and the State. I f the trial court fails to comply , we will issue the wr i t

. Be ca u se our resolution of the mandamus petition disposes of all issues in this case , we dismiss the State’s appea l in Cause Number

03-13-00423- CR as moot.

__________________________________________ Scott K. Field, Just ice Be fore Chief J ustice Jones, J ustices Pemberton a nd Field 03-13-00423CR Dismissed at Moot 03-13-00657- CV Conditi onally Gra nted in Part Filed: De cembe r 20, 2013 Publis h
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