IN THE

TENTH COURT OF APPEALS

No. 10-19-00288-CR

No. 10-19-00291-CR

IN RE ORLANDO DEONTE PIERCE

Original Proceeding

O P I N I O N

In two separate petitions for writ of mandamus, relator, Orlando Deonte Pierce, 

challenges the trial court’s orders on motions to enforce a plea bargain in both 

proceedings. Specifically, relator contends that the trial court unlawfully rescinded a 

plea-bargain agreement; that the trial court had a ministerial duty to approve a plea 

bargain in these cases to remedy a violation of effective counsel; and that a prior trial 

judge would have accepted the plea before a second attempt at rescission by the State. 

For the reasons outlined below, we deny relator’s petitions for writ of mandamus.
In re Pierce Page 2

I. BACKGROUND

In these proceedings, relator was charged by indictment with the offenses of 

aggravated assault and violation of a protective order, family violence. As indicated in 

relator’s mandamus petitions, on August 27, 2018, the Robertson County District 

Attorney’s Office conveyed a plea offer to relator’s court-appointed counsel. According 

to relator, the offer was, in exchange for his plea of guilty to both felonies, relator would 

receive punishment of fifteen years’ prison time for the aggravated-assault allegation and 

ten years’ prison time for the violation of a protective order, family violence, allegation 

with the sentences to be served concurrently. The prosecutor indicated that the plea offer 

was available only for one week. During the following week, relator spoke with his 

appointed counsel and expressed a desire to accept the plea offer. However, appointed 

counsel did not convey relator’s acceptance of the plea offer until a day after the 

prosecutor’s deadline for accepting the offer passed. Prior to appointed counsel’s attempt 

to accept the plea offer, the prosecutor informed appointed counsel, via facsimile, that 

the offer had been withdrawn and that any attempt to accept at this time was too late. 

The prosecutor replaced the aforementioned plea offer with one of forty years’ prison 

time in exchange for relator’s plea of guilty to both felony allegations.

Thereafter, on May 10, 2019, relator moved the trial court to “enforce the plea 

agreement,” arguing that the trial court should enforce the plea offer made by the 

prosecutor for fifteen years’ and ten years’ prison for the two charges with the sentences 
In re Pierce Page 3

to run concurrently. Relator argued that he “should not be punished more severely, 

solely due to the failure of defense counsel to convey defendant’s acceptance of the plea 

agreement to the District Attorney in a timely fashion.” The trial court initially granted 

the request to reopen the plea negotiations and further stated that any plea agreement 

reached between the prosecutor and relator would be considered by the court at a later 

date. The trial court did not accept or reject any plea at this time.

After the trial court’s ruling, relator tried again to accept the prosecutor’s original 

offer of fifteen years’ and ten years’ prison time for the two charges with the sentences to 

run concurrently. However, before the purported agreement could be approved by the 

trial court, the State revoked the plea, stating that the withdrawal was due to “newly 

discovered evidence” that relator committed a new offense of violation of a protective 

order on or about February 26, 2019. Subsequently, the trial court denied relator’s motion 

to enforce the plea agreement, stating that there was no agreement to “specifically 

perform.” The mandamus record does not contain a certified or sworn copy of this order, 

which is the basis of these original proceedings.

II. STANDARD OF REVIEW

In a criminal mandamus, the relator must show that he has no adequate remedy 

at law and what he seeks to compel is a ministerial act. Bowen v. Carnes, 343 S.W.3d 805, 

810 (Tex. Crim. App. 2011); see State ex rel. Young v. Sixth Judicial District Court of Appeals, 

236 S.W.3d 207, 210 (Tex. Crim. App. 2007). An act is ministerial if relator can show a 
In re Pierce Page 4

clear right to the relief sought. Bowen, 343 S.W.3d at 810. A clear right to relief is shown 

when the facts and circumstances dictate but one rational decision under “unequivocal, 

well-settled (i.e., from extant statutory, constitutional, or case law sources), and clearly 

controlled legal principles.” In re State ex rel. Weeks, 391 S.W.3d 117, 122 (Tex. Crim. App. 

2013). Mandamus is not available to compel a discretionary act as distinguished from a 

ministerial act. See State ex rel. Holmes v. Denson, 671 S.W.2d 896, 899 (Tex. Crim. App. 

1984). However, a “discretionary” act can become “ministerial” when the facts and 

circumstances dictate but one rational decision. In re State of Tex., 162 S.W.3d 672, 675 

(Tex. App.—El Paso 2005, orig. proceeding) (citing Buntion v. Harmon, 827 S.W.2d 945, 

948 n.2 (Tex. Crim. App. 1992)).

III. ANALYSIS

“A plea agreement is a contractual arrangement. Until all of the necessary parties 

agree to the terms of the contract, the agreement is not binding.” Ortiz v. State, 933 S.W.2d 

102, 104 (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. The bargain is the consideration 

exchanged to the defendant for the plea of guilty. In order for the contract to 

be binding, the trial judge must approve and accept both aspects of it. When 

presented with a plea bargain, the court has the right to accept or reject it; 

however, it may not hold the defendant to his plea of guilty while rejecting 

the benefit the defendant was to receive. If the court does not approve the 

entire agreement, the defendant must be allowed to withdraw his plea of 

guilty.”
In re Pierce Page 5

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) (emphasis added).

“The trial court’s only role in the plea-bargain process is to advise the defendant 

whether it will accept or reject the plea bargain.” State v. Villarreal, 418 S.W.3d 920, 925 

(Tex. App.—Austin 2013, no pet.). “If the court accepts the plea bargain, the State cannot 

withdraw its offer, and the parties are entitled to specific performance of the bargain.” 

Id. “If the court rejects the plea bargain, the defendant has the right to withdraw his guilty 

plea, and then the State has the right to withdraw its offer.” Id. “The trial court has no 

authority to participate in plea-bargain negotiations.” Id.

In these proceedings, there is nothing in the mandamus record indicating that the 

trial court approved any proposed plea agreement between relator and the prosecutor. 

As such, any purported agreement between relator and the prosecutor was not binding. 

See Ortiz, 933 S.W.2d at 104. Thus, relator is not entitled to specific performance of the 

purported plea agreement. See Villarreal, 418 S.W.3d at 925.

Furthermore, the case law mentioned above demonstrates that the trial court 

exercises discretion in accepting or rejecting a purported plea agreement between the 

State and a particular defendant. See Ortiz, 885 S.W.2d at 273; see also Perkins v. Court of 

Appeals for Third Supreme Judicial Dist., 738 S.W.2d 276, 284 (Tex. Crim. App. 1987) (noting 

that mandamus relief is available to compel performance of ministerial or mandatory 

duties; however, “it is not be to used to force a particular result, or to change a result, the 
In re Pierce Page 6

determination of which involves an exercise of judicial or discretionary authority”). 

Thus, it cannot be said that the trial court, in these proceedings, had a ministerial duty to 

accept the original plea agreement. The decision to either approve or reject the proposed 

agreement rests within the sole discretion of the trial court. Pursuant to Perkins, 

mandamus relief is not available to compel a particular result, such as the acceptance of 

the original proposed plea agreement here, when the determination of which involves 

the exercise of judicial or discretionary authority to accept or reject the purported plea 

agreement. See 738 S.W.2d at 284.

Moreover, because the original plea agreement had been withdrawn by the State 

before the trial court approved of it, there is nothing in the law that requires: (1) the trial 

court to order the State to reoffer the plea agreement; and (2) the trial court to accept the 

re-offered plea agreement. To require this would be to inject the trial court in the pleabargain negotiations, which is prohibited. See Villarreal, 418 S.W.3d at 925. Accordingly, 

we conclude that the relator has failed to identify and establish a true ministerial duty 

that the trial court violated in this case. See Bowen, 343 S.W.3d at 810; see also State ex rel. 

Young, 236 S.W.3d at 210.

In addition to the foregoing, we note that the majority of relator’s mandamus 

petition advances an ineffective-assistance-of-counsel claim against relator’s appointed 

counsel in failing to timely accept the State’s original plea offer. This argument mirrors 

those which were contained in relator’s motion to enforce the plea agreement. In any 
In re Pierce Page 7

event, an ineffective-assistance-of-counsel claim can be brought on direct appeal or by an 

application for writ of habeas corpus. See, e.g., In re Bledsoe, No. 06-14-00215-CR, 2014 

Tex. App. LEXIS 13507, at *2 (Tex. App.—Texarkana Dec. 18, 2014, no pet.) (orig. 

proceeding) (mem. op.) (“Although habeas corpus is usually a preferable avenue for 

raising claims of ineffective assistance of counsel, such claims may be raised on direct 

appeal; therefore, mandamus is not appropriate.”). Therefore, relator has failed to 

establish entitlement to mandamus relief in these proceedings for ineffective assistance 

of counsel because he has an adequate remedy at law. See Bowen, 343 S.W.3d at 810; see 

also State ex rel. Young, 236 S.W.3d at 210.

Furthermore, in his prayer, relator seeks to be “returned to the position he 

occupied on May 13, 2019, that being an accepted plea bargain for 15 years prison time 

on the Aggravated Assault allegations, to be served concurrently with a 10-year prison 

sentence on the Violation of a Protective Order charge.” As stated above, that plea offer 

was withdrawn by the prosecutor. The effect of granting this relief to relator would 

require us to mandamus the prosecutor to re-offer the plea offer desired by relator. We 

lack jurisdiction to issue a writ of mandamus against a prosecutor to make such an offer. 

See TEX. GOV’T CODE ANN. § 22.221(a)-(b) (West Supp. 2018) (providing that an appellate 

court has the power to issue writs of mandamus to protect its jurisdiction or against 

certain judges); see also In re Bailey, No. 10-13-00117-CR, 2013 Tex. App. LEXIS 5539, at *8 

(Tex. App.—Waco May 2, 2013, orig. proceeding) (mem. op.) (noting that an appellate 
In re Pierce Page 8

court lacks jurisdiction to issue a writ of mandamus against a prosecutor). Moreover, 

because the trial court cannot participate in plea-bargain negotiations, the trial court 

cannot require the State to re-offer the plea either. See Villarreal, 418 S.W.3d at 925. As 

such, based on the facts in these proceedings, there is nothing in the law that allows for 

this Court or the trial court to effectuate the requested relief.

IV. CONCLUSION

Based on the foregoing, we deny relator’s petitions for writ of mandamus.1 See 

Bowen, 343 S.W.3d at 810; see also State ex rel. Young, 236 S.W.3d at 210.

JOHN E. NEILL

Justice

Before Chief Justice Gray,

Justice Davis, and

Justice Neill

(Chief Justice Gray dissenting with an opinion)

Petition denied

Opinion delivered and filed October 2, 2019

Publish

[OT06]

 

1 We are also not persuaded by relator’s contention that a prior trial judge in the 82nd Judicial 

District Court of Robertson County, Texas, would have accepted this purported plea agreement. As 

mentioned earlier, trial judges are vested with discretion to accept or reject plea agreements. That a prior 

trial judge would have accepted the purported plea agreement is supposition and irrelevant, especially 

considering the 82nd Judicial District Court is now occupied by a different trial judge who has his own 

discretion to accept or reject plea agreements.