Wells, Ex Parte Alvin Royce

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NOs. AP–76,483 & AP–76,484
EX PARTE ALVIN ROYCE WELLS, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
FROM HOOD COUNTY
M EYERS, J., filed a concurring opinion in which K EASLER, H ERVEY, and
C OCHRAN, JJ., joined.
CONCURRING OPINION
I concur with the decision of the majority. I write separately to mention that while
the remedy of specific performance works in this case, it may not work in all situations.
It is fine here because the State joined the Applicant’s request for reinstatement of the
original 45-year plea offer. Similarly, in the case relied upon by the majority, Ex Parte
Lemke, 13 S.W.3d 791 (Tex. Crim. App. 2000), the State did not oppose the reinstatement
of the original offer or seek to show that it would have modified or withdrawn the offer.
However, because the State did not create the problem and there was no misconduct or
Wells–Page 2
error by the prosecution, we may not be able to order the State to re-offer a plea bargain
in all situations.
Specific performance may not be the proper remedy when the State does not join
the request for reinstatement, or when there was a fair trial after the rejection of the plea
offer. Although such issues were not raised in Lemke, we considered these possibilities,
stating that, “The government may of course, in proper cases, seek to demonstrate that
intervening circumstances have so changed the factual premises of its original offer that,
with just cause, it would have modified or withdrawn its offer prior to its expiration date.”
13 S.W.3d at 798. Lemke also cited Turner v. Tennessee, 858 F.2d 1201, 1208 (6th Cir.
1988), in which the petitioner had been convicted in a fair trial, but later claimed that he
received ineffective assistance in deciding to reject the State’s plea offer. The court in
Turner said that specific performance of a plea agreement is a constitutionally permissible
remedy and held that reinstatement of the original plea offer was required unless the
prosecution could show nonvindictive reasons for withdrawing the offer.
Finally, I note that a case is currently pending before the United States Supreme
Court in which the State opposes the reinstatement of the original plea offer after the
defendant received a fair trial. In Lafler v. Cooper, No. 10-209 (argued October, 31,
2011), the State argues that requiring the State to re-offer the original plea infringes on
prosecutorial discretion and creates practical issues, including the fact that circumstances
have changed and additional information has become available to the prosecution and
Wells–Page 3
court after a trial has taken place. I look forward to the Supreme Court’s discussion of
the proper remedy in these situations.
Meyers, J.
Filed: November 9, 2011
Do Not Publish