Affirmed and Majority and Dissenting Opinions filed December 14, 2023.

In The

Fourteenth Court of Appeals

NO. 14-20-00496-CR

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

D I S S E N T I N G O P I N I O N

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 refile 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.1 I dissented. I and, on further appeal, the Court 

1

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).
2

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.2 

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.

3

 

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.

4

 

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.

5

I again disagree. Citing 

2

See Hatter, 665 S.W.3d at 595.

3

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).

4

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).

5 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. 
3

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.

We cannot affirm the trial court’s order on the theory of a plea bargain 

agreement unless that theory has sufficient record support.6 Unfortunately, the 

majority grossly overstates the record. 

A plea bargain agreement is a contract between the State and the defendant.7 

We consider the record in light of general contract law principles in determining 

whether a contract was formed.8 In Texas, plea bargain agreements are generally 

6 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. 

7 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). 

8

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.). 
4

contemplated to be bilateral contracts.9 A bilateral contract is one where each party 

makes non-illusory mutual promises.10 

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 

9

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.”). 

10 See City of Houston v. Williams, 353 S.W.3d 128, 135 (Tex. 2011); Restatement of 

Contracts § 12 (1932).
5

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 
6

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 refile 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 
7

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.11 

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.

12

 And the approval or rejection must take place in open 

court.

13

 “The ‘contract’ does not become operative until the court announces it will 

11 See Esparza, 413 S.W.3d at 88.

12 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). 

13 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.”)). 
8

be bound by the plea bargain agreement.”

14 The Court of Criminal Appeals has 

therefore stated that the trial court is a “necessary” party to the contract.15 

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 court.

16

 

Appellee has no contractual right to demand specific enforcement of a purported 

agreement that has never been “entered into” or become operative.17

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 

14 Ex parte Williams, 637 S.W.2d at 947. 

15 Ortiz, 933 S.W.2d at 104.

16 See Tex. Code Crim. Proc. art. 26.13(a)(2).

17 See Ex parte Williams, 637 S.W.2d at 943.
9

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.18 A unilateral contract is created “when a promisor promises a benefit 

if a promisee performs.”19 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.”

20 There is only one promisor, and the promisee accepts 

and gives consideration by performance.21 A promisor’s promise in a unilateral 

contract setting does not become enforceable until the promisee performs.22 When 

the promisee delivers the bargained-for performance, the promisor then becomes 

bound to provide the promised benefit.23 Unless the promisee performs the act or 

acts requested by the promisor, there is no binding unilateral contract.24 

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—

18 City of Houston, 353 S.W.3d at 136. 

19 Id. at 135-36; Vanegas v. Am. Energy Servs., 302 S.W.3d 299, 303 (Tex. 2009). 

20 City of Houston, 353 S.W.3d at 136 (citing Restatement of Contracts § 12 cmt. a (1932)). 

21 See id.; 1 Richard A. Lord, Williston on Contracts §§ 1.17, 1:18 (4th ed. 2007)

(hereinafter, “Williston”). 

22 City of Houston, 353 S.W.3d at 136; Vanegas, 302 S.W.3d at 303; Williston, § 1:18. 

23 Dodson v. Stevens Transp., 776 S.W.2d 800, 805 (Tex. App.—Dallas 1989, no writ). 

24 Sunshine v. Manos, 496 S.W.2d 195, 198 (Tex. App.—Tyler 1973, writ ref’d n.r.e.). 
10

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.25 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 approval.

26

 Once the 

DWI charges were dismissed, the outstanding plea offer necessarily was terminated 

and off the table.27 The majority errs in relying on inapplicable cases involving 

25 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.”). 

26 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).

27 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. 
11

whether a party to an executed contract performs a condition stated in the contract 

to the other party’s satisfaction. 

Some courts outside Texas have applied unilateral contract principles to 

determine whether an enforceable plea bargain agreement was created.28 DiazColon provides one illustrative and compelling example similar to the present facts 

and supportive of my position.29 There, 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.”

30

 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 

28 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).

29 Diaz-Colon, 794 F. Supp. 2d at 354. 

30 Id. at 354. 
12

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.’”

31

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.

/s/ Kevin Jewell

Justice 

Panel consists of Justices Jewell, Bourliot, and Hassan (Hassan, J., majority).

Publish — Tex. R. App. P. 47.2(b).

31 Id. (citing Papaleo, 853 F.2d at 19).