No. PD-0876-15

IN THE COURT OF CRIMINAL APPEALS 

RONALD PRESLEY v. THE STATE OF TEXAS 

On Petition for Discretionary Review from 

Appeal No. 12-14-00231-CR

in the Court of Appeals, Twelfth District, at Tyler 

Trial Court Cause No. 31,089 

3rd Judicial District Court 

Anderson County, Texas 

Mark Calhoun, Judge Presiding 

MOTION FOR REHARING 

 State Counsel for Offenders 

 

 Kenneth Nash, Appellate Chief 

 State Bar of Texas No. 14811030 

 Nicholas Mensch 

 State Bar of Texas No. 24070262

 P. O. Box 4005 

 Huntsville, TX 77342 

 (936) 437-5252 

 (936) 437-5279 (fax) 

 nicholas.mensch@tdcj.texas.gov 

Attorney for Petitioner

PD-0876-15

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 11/13/2015 11:41:10 AM

Accepted 11/13/2015 3:26:12 PM

ABEL ACOSTA

CLERK
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IDENTITY OF PARTIES AND COUNSEL

PETITIONER:

Robert Presley, TDCJ# 00508131

TRIAL COUNSEL FOR PETITIONER:

Barbara Law1

State Bar of Texas No. 12000460

State Counsel for Offenders

P.O. Box 4005; Huntsville, Texas 77342

(936) 437-5275/(936) (936) 437-5293 fax

APPELLATE COUNSEL FOR PETITIONER:

Kenneth Nash, Appellate Chief

State Bar of Texas No. 14811030

Nicholas Mensch

State Bar of Texas No. 24070262

State Counsel for Offenders

P.O. Box 4005; Huntsville, Texas 77342

(936) 437-5252/(936) 437-5279 (fax)

RESPONDENT:

The State Of Texas 

TRIAL COUNSEL FOR RESPONDENT

Cindy Garner

State Bar of Texas No. 07673100

Special Prosecution Unit

500 South Seventh Street; Crockett, Texas 75835

(936) 545-5297

APPELLATE COUNSEL FOR RESPONDENT:

Melinda Mayo Fletcher

State Bar of Texas No. 18403630

Special Prosecution Unit

P.O. Box 1744; Amarillo, Texas 79105

(806) 367-9407/(866) 923-9253 fax

 

1 Ms. Law has retired from State Counsel for Offenders
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TABLE OF CONTENTS

Identity of Parties and Counsel................................................................................. ii

Index of Authorities................................................................................................. iv

Statement of Procedural History............................................................................... 1

Grounds for Rehearing.............................................................................................. 1

.

Argument................................................................................................................... 1

Prayer for Relief........................................................................................................ 5

Certificate of Compliance, Tex. R. App. P. 79.2...................................................... 6

Certificate of Compliance, Tex. R. App. P. 9.4........................................................ 6

Certificate of Service ................................................................................................ 7
iv

INDEX OF AUTHORITIES

Cases

Blanton v. State, 

369 S.W.3d 894 (Tex. Crim. App. 2012)........................................................2

Collins v. State, 

240 S.W.3d 925 (Tex. Crim. App. 2007)........................................................2

Ex parte Moreno, 

245 S.W.3d 419 (Tex. Crim. App. 2008)........................................................4

Ex parte Perez, 

398 S.W.3d 206 (Tex. Crim. App. 2013)........................................................2

Guthrie-Nail v. State, 

2015 Tex. Crim. App. LEXIS 917 (Tex. Crim. App. 2015).....................2

Gutierrez v. State, 

108 S.W.3d 304 (Tex. Crim. App. 2003)........................................................4

Moore v. State, 

295 S.W.3d 329 (Tex. Crim. App. 2009)....................................................3, 4

Presley v. State, 

No. 12-14-00231-CR, 2015 Tex. App. LEXIS 6810 (Tex. App.–Tyler June 

17, 2015, pet. filed) (not designated for publication)......................................1

Santobello v. New York, 

404 U.S. 257 (1971).....................................................................................3, 4

Rules

Texas Rule of Appellate Procedure 25.2(a)(1)..........................................................3

Texas Rule of Appellate Procedure 79 ......................................................................1
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Statutes

Texas Code of Criminal Procedure 42.08(b).............................................................1

Texas Code of Criminal Procedure 44.01(b).............................................................3
1

Pursuant to Tex. R. App. P. 79, Petitioner, Robert Presley submits this 

Motion for Rehearing in response to this Court’s refusal of his Petition for 

Discretionary Review on November 5, 2015. 

STATEMENT OF PROCEDURAL HISTORY

The Twelfth Court of Appeals affirmed the trial court’s judgment nunc pro 

tunc as modified. Presley v. State, No. 12-14-00231-CR, 2015 Tex. App. LEXIS 

6810 (Tex. App.—Tyler June 17, 2015, pet. refused) (not designated for 

publication). The Court held “that when Art. 42.08(b)2applies, the trial court need 

not specify the prior conviction on which a defendant’s sentence is to be cumulated 

under Art. 42.08(b) because that information will be known by the TDCJ [Texas 

Department of Criminal Justice].” The Court of Appeals then modified the 

stacking order of the judgment to state “any other sentence that Ronald Presley is 

currently serving.” No motion for rehearing was filed. On November 4, 2015, this 

Court refused Petitioner’s Petition for Discretionary Review.

GROUNDS FOR REHEARING

This Court’s refusal to grant the Petition, and reverse the decision of the 

Twelfth Court of Appeals, effectively grants prosecutors the ability to go back and 

change the material terms of a plea bargain agreement under the “guise” of a nunc 

pro tunc. If the State is not happy with the plea bargain, they can simply file a nunc 

 

2 Tex. Code Crim. Proc. 42.08(b).
2

and receive a new, more lucrative bargain. In this case the more lucrative bargain 

was the changing of the cumulation order of Petitioner’s conviction from one 

sentence (that was apparently near completion or had been discharged at the time 

of the nunc hearing) to a different sentence with a much a longer term.

ARGUMENT

“A court may not properly grant a judgment nunc pro tunc to change the 

judgment ‘to reflect what it believes should have been done.’” Guthrie-Nail v. 

State, No. PD-0125-14, 2015 Tex. Crim. App. LEXIS 917 (Tex. Crim. App. 2015)

(Richardson, J., concurring), quoting Collins v. State, 240 S.W.3d 925, 928 (Tex. 

Crim. App. 2007). “Rather, a nunc pro tunc correction ‘must reflect the judgment 

that was actually rendered.’” Id., quoting Blanton v. State, 369 S.W.3d 894, 899 

(Tex. Crim. App. 2012). 

Here, the State of Texas offered the Petitioner 4 years, cumulated on his 

sentence in Cause No. F812704PM out of Dallas County in exchange for him 

pleading guilty (and waiving several of his constitutional rights). (C.R. at 10).3

Petitioner accepted the State’s offer and pled guilty. The State then purportedly 

discovered that they had made a mistake with the sentence they agreed to 

cumulate, part of their offer to induce Petitioner to plead guilty, and they needed a 

 

3 The district court’s oral cumulation order was considerably less precise. The district 

court ordered that his 4-year sentence “will run consecutive to any other sentence that you’re 

currently serving.” (R.R. - Plea Hearing at 15)
3

redo. They couldn’t do a direct appeal as they were outside of the timelines. See 

Tex. Code Crim. Proc. 44.01(b), Tex. R. App. P. 25.2(a)(1). So they chose a 

motion for nunc pro tunc to circumvent the agreement they had made. 

“Plea bargains are integral part of the criminal justice system.” Moore v. 

State, 295 S.W.3d 329, 331 (Tex. Crim. App. 2009). As the United States 

Supreme Court has stated:

Disposition of charges after plea discussions is not only an essential 

part of the process, but a highly desirable part for many reasons. It 

leads to prompt and largely final disposition of most criminal cases; it 

avoids much of the corrosive impact of enforced idleness during 

pretrial confinement for those who are denied release pending trial; it 

protects the public from those accused persons who are prone to 

continue criminal conduct even while on pretrial release; and, by 

shortening the time between charge and disposition, it enhances 

whatever may be the rehabilitative prospects of the guilty when they 

are ultimately imprisoned.

...

This phase of the process of criminal justice, and the adjudicative 

element inherent in accepting a plea of guilty, must be attended by 

safeguards to insure the defendant what is reasonably due in the 

circumstances. Those circumstances will vary, but a constant factor is 

that when a plea rests in any significant degree on a promise or 

agreement of the prosecutor, so that it can be said to be part of the 

inducement or consideration, such promise must be fulfilled.

Santobello v. New York, 404 U.S. 257, 261-262 (1971) (emphasis 

added).

These “considerations presuppose fairness in securing agreement between an 

accused and a prosecutor.” Id. at 261. “Accordingly, a proceeding in which an 
4

accused waives fundamental rights: to a jury trial, to confront one’s accusers, to 

present witnesses in one’s defense, to remain silent, and to be convicted by proof 

beyond all reasonable doubt ‘is a serious and sobering occasion.’” Gutierrez v. 

State, 108 S.W.3d 304, 306 (Tex. Crim. App. 2003), quoting Santobello, 404 U.S. 

at 264 (emphasis added). A plea-bargain agreement, like the one between 

Petitioner and the State, is a contract. Moore, 295 S.W.3d at 331. Here, the State 

breached that contract when it filed their nunc and attempted to have the 

cumulation order changed from one case of aggravated assault in Cause No. 

F812704PM (whose sentence Petitioner was apparently near completion or had 

discharged at the time of the nunc hearing) for another case of aggravated assault 

in Cause No. F88-86965-JL, under the guise of a simple “mistake” they made. 

Petitioner contends this was not a simple mistake, but an attempt to go back and 

undo a legally binding agreement because the State did not give Petitioner the 

sentence she may have intended to, but chose not to at the time of the plea bargain. 

As this Court has noted, the State and society have a legitimate interest in the 

finality of litigation (or a judgment). Ex parte Perez, 398 S.W.3d 206, 218 (Tex. 

Crim. App. 2013) and Ex parte Moreno, 245 S.W.3d 419, 429 (Tex. Crim. App. 

2008) (“State possess legitimate interest in ‘the repose and finality of its 

convictions.’”). Doesn’t that same legitimate interest also apply to a criminal 

defendant after he accepts a plea bargain agreement and it is the State, not he, who 
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challenges the validity of that judgment? This Court’s refusal of Petitioner’s 

Petition effectively tells criminal defendants that they have no such legitimate 

interest. It also tells them they have no legal recourse when the State goes back on 

a plea bargain that they signed in good faith with the expectation that the State 

would honor that agreement. 

PRAYER

Wherefore, Petitioner prays that this Court grant this Motion for Rehearing,

order briefing on this cause, and set his case for submission. Moreover, upon 

submission and review of the appellate record and the briefs and arguments of 

counsel, Petitioner prays that this Court reverse the Twelfth Court of Appeal’s 

judgment (and the trial court’s judgment) and reinstate, or remand the case to the 

trial court so that it may reinstate, the original judgment entered on February 24, 

2014. Petitioner also prays for such other relief that this Court may deem 

appropriate.

Respectfully submitted,

State Counsel for Offenders

Attorney for Petitioner

/s/ Nicholas Mensch

Nicholas Mensch

State Bar of Texas No. 24070262

P. O. Box 4005

Huntsville, TX 77342

(936) 437-5252/(936) 437-5279 (fax)

nicholas.mensch@tdcj.texas.gov
6

CERTIFICATE OF COMPLIANCE, TEX. R. APP. P. 79.2

In accordance with Tex. R. App. 79.2(c), I certify that this Motion for 

Rehearing that refuses Petitioner’s Petition for Discretionary Review is grounded 

only on substantial intervening circumstances or on other significant circumstances 

which are specified in the Motion. I further certify that this Motion is so grounded 

and that the Motion is made in good faith and not for delay.

/s/ Nicholas Mensch

Nicholas Mensch

CERTIFICATE OF COMPLIANCE, TEX R. APP. P. 9.4

In accordance with Rule 9.4, Rules of Appellate Procedure, I certify that this 

computer-generated document complies with the typeface requirements of Rule 

9.4(e) and is comprised of 1,171 words (excluding the items exempted in Rule 

9.4(i)(1)).

/s/ Nicholas Mensch

Nicholas Mensch
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CERTIFICATE OF SERVICE

I certify that a true and correct copy of the foregoing Motion for Rehearing

was served upon opposing counsel noted below, by one or more of the following: 

certified mail (return receipt requested), facsimile transfer, or electronic mail (email), on this 13th day of November, 2015. 

Melinda Fletcher

Special Prosecution Unit

P. O. Box 1744

Amarillo, TX 79105

Telephone no. 806-367-9407

Facsimile no. 866-923-9253

E-mail address: mfletcher@sputexas.org

Lisa McMinn

State Prosecuting Attorney

P.O. Box 13046

Austin, TX 78711

E-mail address: information@spa.texas.gov

/s/ Nicholas Mensch

Nicholas Mensch