in Re Roy Dean Duffey

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-15-00008-CR
IN RE ROY DEAN DUFFEY
Original Mandamus Proceeding
Before Morriss, C.J., Moseley and Burgess, JJ.
Opinion by Justice Burgess
OPINION
Roy Dean Duffey asks this Court to issue a writ of mandamus directing the judge of the
8th Judicial District Court of Hopkins County to enforce a plea agreement. We deny Duffey’s
petition because he has failed to establish that he is entitled to the relief requested.
I. Background
This case was previously before us on direct appeal of Duffey’s conviction. Duffey v.
State, 428 S.W.3d 319 (Tex. App.—Texarkana 2014, no pet.). Although our previous opinion
states the pertinent facts in this case, we will restate some of them here in order to provide
context to our ruling.
Duffey was indicted for the murder of David Harrison Cooper in the 8th Judicial District
Court of Hopkins County, Texas. On the day of trial, “Duffey and the State entered into a plea
agreement wherein Duffey entered a plea of guilty to the reduced charge of manslaughter with an
agreed punishment recommendation of ten years’ imprisonment on the condition that Duffey
would receive ‘shock probation.’” Id. at 320. The trial court accepted his plea, but reset the
sentencing hearing for July 9, 2012. Id. As we noted in our previous opinion, “During the plea
hearing, the trial court accepted Duffey’s plea of guilty, making it plain that Duffey would
thereafter be unable to withdraw that plea of guilty.” Id. at 321. The trial judge then stated,
“You’ve entered a plea of guilty, and your attorneys—I mean, they’ve got you a
great deal here, probably. If you committed manslaughter, you’ve got a very
good opportunity. The question is—you’ve told me you had, so the Court will
find you guilty next Monday and sentence you and then plan to bring you back
before Christmas [pursuant to shock probation]. That’s—that’s the plan.”
Id. at 321–22.
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After the plea hearing, but before the formal sentencing hearing, the victim’s parents, the
parents’ minister, and other friends of the family traveled to the judge’s chambers at the
courthouse, unannounced and uninvited, to register their complaints about the State’s plea
agreement with Duffey. Although the district judge repeatedly told them he could not discuss
the case, he listened to their complaints. Id. at 322–23. To end this meeting, the minister “led
everyone, including the trial judge, in a prayer for justice, and . . . the trial judge concluded the
meeting by rising, informing the group that he had to be somewhere else quite shortly, and
leaving the room.” Id. at 323. That same day, the State “filed a motion to continue the
sentencing hearing on the basis that representatives of the State had met with Cooper’s family
and had received ‘the possibility of evidence that could affect its decision or the Court’s decision
to accept or reject the agreement offered to the Court.’” Id. at 320–21. The motion for
continuance was heard on July 9, 2012, the date originally scheduled for the sentencing hearing.
The State’s motion was granted, and the matter was reset for July 23, 2012.
On July 19, the trial judge informed the parties of his intent to reject the plea agreement.
Id. at 321. Duffey moved to recuse the trial judge, and the Administrative Judge for the First
Administrative Judicial Region denied the motion. Id. Thereupon, Duffey entered an open plea
of guilty to the charge of manslaughter, and the jury sentenced him to twelve years’
imprisonment. Id. On appeal, this Court reversed the conviction and granted a new trial because
the administrative judge erred in failing to grant Duffey’s motion to recuse. Id. at 327.
Upon remand to the trial court, Duffey filed a motion to enforce the original plea
agreement. The current district judge for the 8th Judicial District Court heard the motion on
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October 22, 2014. The current Hopkins County district attorney and defense counsel appeared at
the hearing on Duffey’s motion. 1 The trial judge heard the matter, considered the applicable
authorities, arguments of counsel, and the record, and took the matter under advisement. After
careful consideration, the trial judge denied Duffey’s motion to enforce the original plea
agreement.
Duffey has now filed this action asking us to issue a writ of mandamus directing the trial
judge to enforce the plea agreement reached in July 2012.
II. Standard of Review
To obtain mandamus relief in a criminal case, “the relator must show two things: (1) that
he has no adequate remedy at law[] and (2) that what he seeks to compel is a ministerial act.”
In re Bonilla, 424 S.W.3d 528, 533 (Tex. Crim. App. 2014) (orig. proceeding). Ordinarily, the
enforceability of a plea agreement is an issue that may be raised through direct appeal. See Ortiz
v. State, 933 S.W.2d 102, 104 (Tex. Crim. App. 1996) (finding trial court’s acceptance of guilty
plea before approval of plea agreement to be tentative and nonbinding); see Wright v. State, 158
S.W.3d 590, 594–95 (Tex. App.—San Antonio 2005, pet. ref’d) (reversing on direct appeal trial
court’s sua sponte rejection of plea agreement where prior to ex parte meeting with victim’s
family, trial court accepted plea and agreed to “go along” with plea agreement).
Moreover, an act is “ministerial” if it does not involve the exercise of any discretion.
State ex rel Hill v. Court of Appeals for the Fifth Dist., 67 S.W.3d 177, 180–81 (Tex. Crim. App.
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Between the time of the first plea hearing and our opinion remanding the case to the 8th Judicial District Court, a
new judge was elected to the 8th Judicial District Court and a new district attorney was elected in Hopkins County.
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2001). The issue must be beyond dispute with “‘nothing left to the exercise of discretion or
judgment.’” State ex rel. Rosenthal v. Poe, 98 S.W.3d 194, 198 (Tex. Crim. App. 2003) (quoting
Hill v. Fifth Court of Appeals, 34 S.W.3d 924, 927–28 (Tex. Crim. App. 2001)). If there is any
discretion or judicial determination attendant to the act, it is not ministerial; nor is it ministerial if
the trial court must weigh conflicting claims or collateral matters that require legal resolution.
State ex rel Hill, 67 S.W.3d at 181.
A trial court enjoys broad discretion to accept or reject a sentencing recommendation
offered by the State. Smith v. State, 243 S.W.3d 722, 726 (Tex. App.—Texarkana 2007, pet.
ref’d). Consequently, mandamus is typically not available to force a trial court to enforce a plea
agreement. Nevertheless, in Perkins v. Court of Appeals for Third Supreme Judicial District of
Texas, at Austin, 738 S.W.2d 276, 285 (Tex. Crim. App. 1987) (orig. proceeding), the Court of
Criminal Appeals held that mandamus relief is available to enforce a plea agreement where the
plea agreement has become so final that the trial judge’s refusal to enforce the agreement is
tantamount to granting a new trial sua sponte. Accordingly, we must decide whether the plea
agreement in this case rose to that level of finality.
A. Perkins
In Perkins, the petitioner and two other individuals were charged with murder. The State,
believing the petitioner was merely a party and not a principal to the murder, entered into a plea
agreement with a sentencing recommendation of “25 years in the Texas Department of
Corrections.” Id. at 278. At the initial plea hearing,
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[the Petitioner’s] attorney then advised Relator [the trial judge], “Your Honor, on
top of that, we’re going to ask for a PSI [presentence investigation report] and ask
the Court to consider all the facts, but that [the 25 years] is the [prosecutor’s]
recommendation.” Relator then told [Petitioner] that it was his “intention to
accept the State’s recommendation at this time,” and that “if the Court proceeds to
sentencing, then [you] can be given 25 years in the penitentiary and would not be
allowed to appeal or anything else.”
Id.
The trial court went forward with the change of plea hearing. The plea admonishments
were completed, signed, and filed with the clerk, and the State’s evidence was admitted into
evidence. Id. at 279. The trial court “then found [the Petitioner] guilty as a party to the offense
of murder, ‘and not that you yourself actually committed the murder.’” Id. The trial judge went
on to state his understanding of the parties’ agreement:
“(Referring to [the Petitioner’s] attorney): You—basically, you’re stating that
you—all are accepting the 25 as being the maximum ceiling and that’s what you-
all are agreeing to and you understand that I could go lower than that but you—
all’s agreement is that I would go no higher than 25.”
Id. Finally,
[t]he record clearly reflects that Relator made it clear to everyone that “the
maximum punishment that [he] would be giving [Petitioner] . . . would be 25
years pursuant to the State’s plea negotiation.” However, Relator also made it
known to everyone that “it [was] possible that [he] would go lower than–that,
[that he might] give [Petitioner] something less than 25 years in view of [his,
Petitioner’s] testimony, in view of the letter that you’ve submitted the Court and
all of the evidence in this case. It’s a possibility that [I] would do less than 25
[but I am] not [now] really sure how much that would be.”
Id.
Between the initial plea hearing on September 16 and the sentencing hearing two weeks
later, the State learned that the petitioner was a principal to the murder, not just a party. Id. at
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280. The State apparently relayed the new information to the trial judge in an ex parte
conversation. Id. at 279–80. At the sentencing hearing, the trial judge announced that the State
was withdrawing its “plea bargain offer in this case” and that it would “not accept the 25 years
that [he had] previously assessed in this case.” Id. at 280. The petitioner filed his application for
a writ of mandamus in the court of appeals, which granted the application. Id. The Texas Court
of Criminal Appeals affirmed the court of appeals stating,
Under this Court’s decision of Zaragosa v. State, 588 S.W.2d 322 (Tex. Crim.
App. 1979), Relator had no lawful authority to sua sponte withdraw [Petitioner’s]
plea of guilty. In Zaragosa, supra, this Court held that because a motion for new
trial in a criminal case may be granted only on the timely motion of a defendant, a
trial judge has no power to grant a new trial on his own motion, and, if he does
grant a motion for new trial on his own motion, such is a void act. We find that
Relator’s act, after approving the plea bargain agreement that the parties had
entered into, to the extent of the “cap” that had been set on punishment that would
be assessed by Relator, in refusing to go forward with the plea bargain agreement
and withdrawing [Petitioner’s] plea of guilty, actually amounted to the granting
on his own motion a new trial for [Petitioner]. Such act was, for the reasons
stated in Zaragosa, supra, a nullity. [Petitioner] stands convicted of the offense of
murder on his plea of guilty.
Id. at 280–81.
The facts in Perkins and the present case are remarkably similar. In both cases, the
defendants were charged with murder. In both cases, the State entered into a plea agreement
with the defendants with a sentencing recommendation that would place a cap on the upper end
of the sentence with the possibility of a lesser sentence depending upon the results of subsequent
events. In both cases, the plea admonishment forms were completed, signed, and filed with the
clerk, the defendants were admonished of the risks associated with waiving their rights, waived
their rights, and pled guilty. In both cases, the trial judge accepted the defendants’ guilty pleas.
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In both cases, formal sentencing was reset for a later date, and in both cases, the trial judge held
an ex parte conversation—with the State in Perkins and the victim’s family here—between the
date the plea was accepted and the date of sentencing. In both cases, the trial judges refused to
go forward with the plea agreement and sentencing recommendation based upon information
derived from the ex parte communication.
Nevertheless, two key differences exist between the facts in this case and in Perkins.
First, in Perkins, the trial judge “found [the Petitioner] guilty,” Perkins, 738 S.W.2d at 279, and
here, the trial judge said he would find Duffey “guilty next Monday.” Duffey, 428 S.W.3d at
321. Second, in Perkins, the trial judge “made it clear to everyone that ‘the maximum
punishment that [he] would be giving [Petitioner] . . . would be 25 years pursuant to the State’s
plea negotiation.’” Perkins, 738 S.W.2d at 279. Here, the trial judge said he planned to bring
Duffey back before Christmas for shock probation. Duffey, 428 S.W.3d at 321. Accordingly,
the State in Perkins recommended a range of possible prison sentences; here, the State
recommended shock probation. The question presented is whether these differences are
sufficient to distinguish the trial judge’s decision to reject the plea agreement in this case from
the trial judge’s void order sua sponte granting a new trial in Perkins. For the reasons set forth
below, we find that they are.
B. Caselaw Regarding Enforceability of Plea Agreements
“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, 933 S.W.2d at 104. Moreover,
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[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.
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).
Finalizing a plea agreement involves two steps. Zapata v. State, 121 S.W.3d 66, 69 (Tex.
App.—San Antonio 2003, pet. ref’d). First, the defendant and the State reach an agreement;
when the defendant enters his plea to the trial court, the agreement is binding on both parties
only. Id. Second, the trial court must accept or reject the recommended punishment; if the court
accepts the recommended punishment, the plea agreement becomes binding upon both parties
and the court. Id. at 70. Conversely, if the trial court rejects the punishment recommendation,
the defendant may withdraw his guilty plea, and neither party is bound by the plea agreement.
Id. Essentially,
[u]sing purely contractual terms, the trial court’s rejection of the plea agreement
could be likened to a condition subsequent to the plea agreement between the
State and the defendant. A condition subsequent is a condition referring to a
future event, upon the happening of which the obligation becomes no longer
binding upon the other party, if he chooses to avail himself of the condition.
Rincones v. Windberg, 705 S.W.2d 846, 848 (Tex. App.—Austin 1986, no pet.).
The trial court’s rejection of the plea agreement would be a condition subsequent
or an event that would make the plea agreement no longer binding upon the
defendant.
Id.
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Furthermore, there are two types of “acceptance” by the trial court: (1) acceptance of the
guilty plea when the trial court finds that the defendant was competent and that he entered his
plea freely and voluntarily and (2) acceptance of the recommended sentence and terms of the
agreement when the trial court finds the defendant guilty, or defers adjudication, and imposes the
agreed upon sentence. Judge Meyers, in his concurring opinion in Ortiz, made this distinction
clear:
In my opinion, appellant’s argument is based upon several mistaken assumptions.
First, he evidently believes that acceptance of his guilty plea by the trial judge
was tantamount to acceptance of his plea bargain with the prosecutor. But this is
surely wrong. Our law provides that “[p]rior to accepting a plea of guilty or a
plea of nolo contendere, the court shall admonish the defendant of [some
important consequences which may follow from his plea] and that “[n]o plea of
guilty or nolo contendere shall be accepted by the court unless it appears that the
defendant is mentally competent and the plea is free and voluntary.” [TEX. CODE
CRIM. PROC. ANN. art. 26.13(a), (b)]. Thus, acceptance by the court of a
defendant’s guilty plea is legally inhibited only if the plea is not an intelligent act
of the defendant’s competent free will. The trial judge need not also agree to
ratify the terms of a private agreement between the parties before accepting a
guilty plea. At most, he need only state whether he will ratify or reject the
bargain.
Ortiz, 933 S.W.2d at 110 (Meyers, J., concurring). Accordingly, between the time when a trial
court accepts the plea of guilty by finding the defendant competent and finding that his plea was
free and voluntary—which makes the agreement binding upon the State and the defendant—and
the time when the court finds the defendant guilty, or defers adjudication of guilt, and imposes
the agreed upon sentence—which makes the agreement binding upon the court—the trial court
has broad discretion to accept or reject the State’s sentencing recommendation. Id.; see also
Smith, 243 S.W.3d at 726.
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Therefore, the distinctions between the plea agreement status in this case and the one in
Perkins are significant. In Perkins, the trial judge had accepted the defendant’s plea, had found
the defendant guilty, and had agreed to impose not more than the agreed upon sentence, while
reserving the possibility of imposing a lesser sentence, before he attempted to reject the plea
agreement. By that point, the plea agreement had already become binding upon the trial court,
and the trial court had no discretion to do anything other than sentence the defendant in
accordance with the agreement. Here, on the other hand, the trial judge had only accepted the
defendant’s plea of guilty, but had postponed a finding of guilt and imposition of the agreed
upon sentence until the sentencing hearing. Unlike the judge in Perkins, who only had to
determine whether to impose the maximum term of twenty-five years’ imprisonment or some
lesser term of imprisonment, in this case, the judge still had to decide whether to impose shock
probation.
Article 42.12, Section 6(a) of the Texas Code of Criminal Procedure provides, “Before
the expiration of 180 days from the date of execution of the sentence actually begins, the judge
of the court that imposed such sentence may . . . suspend further execution of the sentence and
place the defendant on community supervision.” TEX. CODE CRIM. PROC. ANN. art. 42.12, § 6(a)
(West Supp. 2014). Section 6(c) provides, “The judge may deny the motion without a hearing,
but may not grant the motion without holding a hearing and providing the attorney representing
the state and the defendant the opportunity to present evidence on the motion.” TEX. CODE
CRIM. PROC. ANN. art. 42.12, § 6(c) (West Supp. 2014). Moreover, Section 9 provides that
before a trial judge can impose a sentence of community supervision in a felony case, “the judge
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shall direct a supervision officer” to prepare a presentence investigation (PSI) report. TEX. CODE
CRIM. PROC. ANN. art. 42.12, § 9(a) (West Supp. 2014).
Although at first glance, a sentence of ten years with a possibility of shock probation
might seem similar to the twenty-five-year sentence with the possibility of a lesser sentence in
Perkins, the fact is that Duffey did not bargain for a sentencing recommendation for a term of
imprisonment of ten years or less, but for a sentencing recommendation of shock probation. The
judge could not impose that bargained-for sentence without further hearing and without a PSI
report. Thus, the trial judge below had many steps remaining before he could impose the
recommended sentence in this case.
Consequently, the judge’s decision to reject the sentencing recommendation in this case
is not tantamount to a sua sponte grant of a new trial as in Perkins, and he had broad discretion to
reject the agreement. 2
2
It should be noted that the exercise of discretion by the first district judge in rejecting the plea agreement prior to
the first trial is not at issue in this case. The prior conviction and sentence was reversed by our earlier decision, and
the case was remanded to the trial court for a new trial. Consequently, it returned to the position it occupied before
the former trial, including, “at any party’s option, arraignment or pretrial proceedings initiated by that party.” TEX.
R. APP. P. 21.9(b). By filing his motion to enforce the plea agreement, Duffey elected to return the case to the
position it occupied after he entered his negotiated plea of guilty, but before the first judge rejected the sentencing
recommendation. Thus, on remand, the trial court received the case in that posture.
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III. Conclusion
When a trial judge has discretion to act, mandamus is unavailable. Because the trial
judge below retained discretion to reject the plea agreement, Duffey cannot show that enforcing
the agreement was ministerial in nature. Consequently, Duffey is not entitled to the relief he
requests.
We deny the petition.
Ralph K. Burgess
Justice
Date Submitted: February 26, 2015
Date Decided: February 27, 2015
Publish
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