## IN THE COURT O F CRIMINAL APPEALS OF TE XAS

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J A M E S E A R L W I L L I A M S , A p p e l l a n t

v . T H E S T A T E O F T E X A S
O N A P P E L L A N T ’ S P E T I T I O N F O R D I S C R E T I O N A R Y R E V I E W

F R O M T H E T E N T H C O U R T O F A P P E A L S

M c L E N N A N C O U N T Y

K E L L E R , P . J . , d e l i v e r e d t h e o p i n i o n o f t h e C o u r t i n w h i c h M E Y E R S , K E A S L E R , H E R V E Y , A L C A L A , R IC H A R D S O N , Y E A R Y a n d N E W E L L , J J , j o i n e d . J O H N S O N , J . c o n c u r r e d .

P u rs uant to an ag ree ment, appellant pled g uilty to two felony offe nses. I n addition to the written terms of the plea ag ree ment, the parties orally ag ree d to a s ta tement made by defe nse counsel. This statement, occur

ring at the plea hear ing afte r defe nse counsel acknow ledg ed the written terms of the ag ree ment “in eac h case ,” was: “And the State

. . . is g oing to ref use prosec ution of any other

case in which the State has notice

. . . unfiled case s.” Appellant now contends that this oral part of the plea ag ree ment was unambig uous and bars the prosec ution of an unrela ted murder case beca useWILLIAMS — 2

the State had notice of it at the time of t h e p l ea. The State contends that this oral part of the
ag ree ment was ambig uous and that aff idavits from the attorney s involved in the plea show that the plea ag ree ment was not intended to encompa ss the murder case . We ag ree with the State and aff irm the judg ment of the c ourt of appe als. I. BACKG ROUND A. The Earlier P rosec utions Offe nse reports by the W aco Poli ce Depar tment indicate tha t ap p ell ant commi tted sever al crimes on July 25, 1998. Appellant forcibly enter ed the home of Roy Mitchell and robbed him at
g unpoint. He also shot Dar rell Davis in the parking lot of a Church’s Fr ied Chicken. A stray bullet alleg edly struck a nine -y ear -old child nea rby , who suffe red a

superf icial wound. Appellant was indicted for ag g rava ted robber y fo r the incident involving Mitchell and for
ag g rava ted assault for the incident involving Davis. I n 2002, appellant pled g uilty to these offe nses pursuant to an ag ree ment. I n eac h case , a document entitled “Disclosure of Plea Recommenda tion” stated that appellant was pleading g uilty to the respe ctive offe nse in ex ch ang e for a fiftee n-y ear
sentenc e. These documents wer e signe d by the prosec utor, appellant, and defe nse counsel. At the plea he aring , the plea a g ree ment was discussed a s follows:
THE COURT: And has there been a plea barg ain enter ed into betwee n the State and the def ense? [P ROSECUTOR] : Yes, Your Honor. The State’s ag ree d to rec ommend 15 y ear s confine ment in the penitentiary

. THE COURT: I s that y our under standing of the plea barg ain, [defense counsel]? [DEFENSE COUNSEL ]: Yes, sir, in eac h case . And the State, um, is g oing to ref use prosec ution of any

other c ase in whic h the State has notice , um –WILLIAMS — 3

[P ROSECUTOR] : That’s cor rec t. [DEFENSE COUNSEL ]: – unfiled ca ses. [P ROSECUTOR] : That’s cor rec t. The trial court would later ask, “And do y ou understand what the rec ommendation is in eac h of these

case s? ” Appellant responde d, “Ye s.” The trial court followed the plea ag ree ment an d s en t enced appellant to fifte en y ear s in prison on eac h case

. B. Th e P rese nt Case
I n 2012, appellant was indicted for the murder of Dar ren L ang . The murder was alleg ed to have oc curr ed on June 12, 1998. At trial, appellant moved t o dismiss the murder prosec ution on the basis of his plea
ag ree ment in the prior case s. He contende d that the murder case was an “unfiled case in which the State has notice” in acc ordanc e with defe nse counsel’s statement of the oral portion of the prior plea
ag ree ment. I n support of his claim, appellant submitt ed an aff idavit from himself that “it was [hi s] understanding that all ca s es pending ag ainst [hi m] in the McL ennan County District Attorney ’s office , both filed and unfiled, wer e taken into consideration” in his prior plea “and that the State would ref use prosec ution in any other case s in which the State has notice.” “Obviously ,” appellant further stated, “I understood this would include the unfiled murder case.” And appellant said that he “would neve r have pled g uilty ” to the prior c ases unless he “knew that those pleas would clea n up all case s ag ainst [hi m] in Waco.” Appellant also submitt ed two letters purportedly sent to him in 2001 by defe nse counsel in the prior case s. Both letter s stated that def ense counsel planned to me et with the prosec utor about “an unf iled murder c ase.”WILLIAMS — 4

The State submitt ed af

fidavits from the prosec utor and the defe nse attorney in the prior

case s. Both attorney s stated t hat t he murder case was not part o f t h e p l ea agre ement. The S tate

1 2 took the position that the intent of the parties and the written documents control over what was said in open court. When asked by the trial cour

t what the State’s position would be if “what’s said in
open cour t counts,” the State re plied that the term “ notice” w as uncle ar a nd ambig uous. 3 The trial court denied appellant’ s motion to dismiss

. I n acc ordanc e with jury verdic ts at the
g uilt and punishment phases of trial, appellant was convicted of murder and sentenc ed to eig hty -five
y ear s in prison. C. Appeal On appe al, appe llant contended tha t the trial court e rre d in deny ing his motion to dismi ss. The court of appea ls ag ree d with the State “that, at the very least, the phrase ‘any other case in which

At the time of the murder trial, the defe nse attorney from the prior case s worke d in the 1 district attorney ’s offic e.

The prosec ut o r s t at ed, “Dur ing plea neg otiations we had specific ally ag ree d that the 2 potential Murder char g e from 1998 would not be taken into conside ration in any form whatsoeve r with the se pleas.” Def

ense counsel stated, “The plea ag ree ments in these case s did not in a ny way include considera

tion of an unindicted murder char g e ag ainst Mr. Wil liams. I never repr esente d to Mr. Wil liams that the unindicted murder char ge wa s in any way included in the plea barg ain ag ree ments.” The State contende d, “I don’t know what they meant by ‘notice.’ I mean, that’s why y ou 3 have to ask the parties who enter ed into the ag ree ment. Cases that we have notice of, does it mean notice that somebody has been arr ested? Does it mean that, y ou know, we’ ve taken it to a g rand jury but they haven’ t made any rec ommendation for what we do with that case ? I mean, what – we don’t know what they meant by ‘notice’ beca use they never explained a nd that’s why we had to g o back and g et, y ou know, written statements from both parties about what they meant when they made this plea a g ree ment.WILLIAMS — 5

the State has notice

. . . unfiled case s’ is ambig uous.” The court further conclude d that the trial 4

court did not err in deny ing the motion to dismiss beca use (1) the plea documents in the prior case s did n o t re fe r to the murder char g e, (2) the prosec utor and defe nse attorney in the prior case s both stated that the murder case was not included in the plea ag ree ment, and (3) the rec ord ref lects other unfiled case s that the State had notice of that rela te to the ag g rava ted robber y and ag g rava

ted assault char g es (trespa ss f

or enter ing Mitchell’s home and injury to a child for the stray bullet tha t injure d a nine- y ear -old). Consequently , the cour t of appe als aff

irmed appe llant’s conviction. 5 6 Chief J ustice Gra

y dissented. He would have deter mined that there was no ambig uity in the 7 plea a g ree ment and that the murde r ca se wa s an unfiled c ase a bout which the State had notice

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II. ANALYSIS A plea ag ree ment is a contra ct betwee n the State and the defe ndant. We look to the written 9
ag ree ment and the formal rec ord to de termine the terms of a plea ag ree ment, and we apply g ener al
contra ct-law principles to interpre t a plea ag ree ment. The interpre tation of a contra ct beg ins with 1 0 the text and require s t h at u ndefine d words be g iven their plain, ordinary , and g ener ally acc epted

W illiams v. State , No. 10-13-00413- CR, 2015 Tex. App. L EXI S 7929, * 5 (T ex . 4 App.–Waco Jul y

30, 2015) (not desig nated f or publication). Id. at *5-6 & n.1. 5 Id. at *6. 6 Id. at *6-7 (G ray , C.J ., dissenting)

. 7 Id. at *7. 8 Ex parte De Leon , 400 S.W .3d 83, 89 (Tex. Crim. App. 2013). 9 Jones v. State , 488 S.W .3d 801, 805 (Tex. Crim. App. 2016); De Leon , 400 S.W .3d at 89. 1 0WILLIAMS — 6

meaning s absent some indication of a differ ent intent. Ex trinsic evidenc e may be considere d only 1 1

to interpre t an ambig uous contra ct, not to cre ate an ambig uity not appar ent from the contra ct’s text

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A contract is ambig uous only if it is subject to more than one rea sonable interpre tat i o n , an d 1 3 ambig uity cannot be cre ated mere ly beca use a party can point to words or phrase s that, rea d in isolation, would favor multipl e interpre t at ions, nor is ambig uity cre ated mere ly beca use some lang uag e, when viewed throug h the lens of hindsight, could have been more clea rly stated. Where

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an ambig uity exis ts in a contra ct, the contra ct l an gu age wi ll be construed ag ainst the party who draf ted it, “since the draf

ter is re sponsible for the lang uag e used.” 1 5
I t is appar ent that the oral part of the plea ag ree ment cannot be interpre ted literally

. Def ense counsel’s ref

ere nce to the “State” is not expli ci t l y limit ed to the district attorney of McL ennan County —defe nse counsel simply said that the “St ate” would ref use prose cution of ca ses i n which the “State” has notice. A plea ag ree ment could include an ag ree ment that a case in another county would not be prosec uted, but cle ar l y t h e d ef ense attorney was not intending his ref ere nce to the 1 6 State to include prosec uting a uthorities in other counties, and e ven appe llant claims to understand the re fer ence to “State” to be limited to the district attorney ’s offic e in McL ennan County

. L ikewise, defe nse c o u

n s e l’ s s ta te me n t “ a n y other case ” is not expli citly limit ed to appellant’s

U.S. Me tals v. Liberty Mutual Group , 490 S.W .3d 20, 23 (Tex. 2015). 1 1 Kachina Pipeline Co. v. Lilli s , 471 S.W .3d 445, 450 (Tex. 2015). 1 2 U.S. Me tals , 490 S.W .3d at 24. 1 3 RSUI I ndemnity Co. v. The Lynd Co. , 466 S.W .3d 113, 130 (Tex. 2015). 1 4 Gonzalez v. M

ission American Ins. Co. , 795 S.W .2d 735, 737 (Tex. 1990). 1 5 See Story

v. State , 114 Tex. Crim . 668, 669, 27 S.W .2d 204 (1930). 1 6WILLIAMS — 7

case s. Def

ense counsel could have, but did not, say “any other case involving the defe ndant.” But, althoug h a plea ag ree ment could include an ag ree ment not to prosec ute a differ ent individual, it is 1 7 obvious that the g ener ic ref ere nce to “any other case ” was not in t en d ed t o em brac e case s ag ainst individuals other than appe llant. Def ense c ounsel’s re fer ence s to the “State” a nd to “any

other c ase” appea

r to be imprec ise lang uag e that, in context , wa s m er ely shorthand for the “McL ennan County District Attorney ’s Offic e” and “any other case involving the defe ndant.” But there is another way in which the phrase “any other case ” may be shorthand. I t may be a ref ere nce to o t h er ca s es that arise from the same fac ts as the case s that wer e pled. That is, the curr ent case s involve cer tain offe nses—an ag g rava ted robber y and an ag g rava

ted assault. But future case s could involve other offe nses that arose from the
same tra nsactions, unless the par

ties ag ree that the State will not prosecute suc h case s. Moreove r, the ref

ere nce to “any other case s” could have meant any case s involving offe nses that occur red at about the same time. The two case s that wer e pled have in common that the offe nses

occur red on the same day

. That is, the ag g rava ted robber y and ag g rava

ted assault belong ed to a set of case s (those occur

ring on the same day

) and the ref

ere nce to “other case s” could have meant other

case s in that set. We think that the court of appea ls was corr ect to consider the fac t that the ref usal-of- unfiledcase s term was not contained in the written plea documents but was only t h e s u b j ec t o f an oral
statement at the plea proce eding s. Ora l statements implicate the maxi m that “eve ry day lang uag e is often imprecise.” There is no indication in the rec ord of the plea proce eding that defe nse counsel 1 8

See D e Leon , 400 S.W .3d at 85-86. 1 7 See Q uinn v. State , 958 S.W .2d 395, 402 (Tex. Crim. App. 1997). 1 8WILLIAMS — 8

soug ht to car efully parse an oral term of the plea ag ree ment; to the contr ar y , defe nse counsel’s phrasing is undeniably

imprecise in a

t least two respe cts. We do not hold that the above circ umstances conclusively establish that t h e refusal-ofunfiled-c ases term was case -spec ific (l imited to offe nses that arose from the same fac ts as the offe nses to which appellant pled). We do, howeve r, find the circumstances sufficient to establish ambig uity

. And once we conclude that the oral term of the plea ag ree ment was ambig uo u s , we must inexorably conclude that the m o re limit ed construction of the term is appropr iate. The defe nse counsel in the prior case s, who was appellant’ s ag ent, was the one responsible for the lang uag e used, and so the l ang uag e mus t be construed aga inst appellant. But e ven if that rule of construction did
not work ag ainst appellant, defe nse counsel for those case s unequivoca lly stated that the murder case

was not included in the plea ag ree ment—there by indicating that he did not intend the broad meaning to his words to w hich appellant now ascr ibes. The prosec utor likewise stated that the murder case was not included in the a g ree ment. And t here wer e off enses a rising f rom the fa cts of the of

fense s pled that could have been later prosec uted absent the oral term of the plea ag ree ment. By brea king into Mitchell’s house with the intent to commit a felony , appellant committed a burg lary offe nse that could have been prosec uted later, but for the ref usal-of- unfiled-c ases term of the ag ree ment. 1 9
L ikewise, the injury to the nine-y ear -old could also have been prosec uted at a later time, absent the

See Langs v. State , 183 S.W .3d 680, 686 (Tex. Crim. App. 2006) (“[I ]t is equally well 1 9 settled that a substantive felony and a burg lary by enter ing a home without the consent of the owner and with the intent to commit that felony are two distinct offenses.” ).WILLIAMS — 9

oral ter m of the plea

ag ree ment. 2 0
Be cause we conclude that the oral term of the plea agr eeme nt was li mited to unfiled cases that arose from the same fa ct s as the cases t o which appellant pled, t he prosecution of t he murder

case , which wa s unrelate d to those case s, was not ba rre d by the ora l term of the plea

ag ree ment. 2 1 We affir m the judgme nt of the cour t of appe als. Deliver ed: September

14, 2016 Publis h

See Ex parte Hawkins , 6 S.W .3d 554, 557 (Tex. Crim. App. 1999) (“ [ I ] n T ex as the

2 0 allowable unit of prosec ution for an assaultive offe nse is eac h victim.”). See also T E X
. P E N A L C O D E § 22.04(a) (3) ( “A pe rson commits an offe nse if he . . . w ith criminal neglig ence , by act .

. . cause s to a child

. . . bodily injury .”); Ex parte Norris , 390 S.W .3d 338, 341 (Tex. Crim. App. 2012) (two discrete acts having separ ate intents, e ven if both intents wer e to kill the same victim, c an result in two murders, if e ach a ct ca uses the death of a sepa

rate individual). I t is, of course, poss ible that appellant’ s plea of g uilty in these ca ses was involuntary , if 2 1 appellant mistakenly believed that the oral term of the plea ag ree ment was broad enoug h to bar the murder prosec ution and if he would not have pled g uilty had he understood that the plea ag ree ment did not dispose of his murder case . But that is a question to be raised in a proce eding attacking the prior convic tions, not i n the appe al of the pr esent c ase.