      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-11-00692-CV



                                   In re John Edward Morris


                     ORIGINAL PROCEEDING FROM COMAL COUNTY



                            MEMORANDUM OPINION


               Relator John Edward Morris filed a pro se petition for writ of mandamus in this

Court. See Tex. Gov’t Code Ann. § 22.221 (West Supp. 2010); see also Tex. R. App. P. 52. In the

petition, Morris asks this Court to compel the Honorable Gary L. Steel, presiding judge of the 274th

Judicial District Court of Comal County, to: (1) enter a nunc pro tunc judgment modifying Morris’s

judgment of conviction to award missing presentence jail time credit, and (2) grant his motion for

specific performance of a term of his negotiated plea agreement. We deny the petition.


                                        BACKGROUND

               On July 6, 2004, Comal County Sheriff Deputy Brett Smith responded to a dispatch

call about a suspicious vehicle. On his way to meet with the complainant, Deputy Smith discovered

the vehicle that was the subject of the call, an older model Ford pickup truck, and encountered

John Edward Morris. The deputy made contact with Morris as he exited his truck. Morris assured

the deputy that everything was okay, that he was just having car problems. Morris then returned to

his truck and retrieved a shotgun. He advanced toward Deputy Smith pointing the weapon at him.
Deputy Smith pulled his service weapon and an exchange of gunfire ensued. The deputy was

unharmed. Morris sustained three gunshot wounds. As a result, Morris was transported to a

San Antonio hospital where he remained until he was eventually placed in the Comal County jail on

a charge of attempted capital murder. Subsequent to being indicted for that offense, Morris entered

a plea of nolo contendere to the lesser-included offense of aggravated assault on a peace officer with

a deadly weapon pursuant to a plea bargain.1 Pursuant to the plea bargain, Morris was sentenced to

30 years in the Texas Department of Criminal Justice.


                                   MANDAMUS STANDARD

               To be entitled to mandamus relief in a criminal case, a relator must establish that:

(1) he has no other adequate legal remedy to redress the alleged harm, and (2) under the relevant

facts and law, the act sought to be compelled is purely ministerial, not involving a discretionary or

judicial decision. State ex rel. Young v. Sixth Judicial Dist. Court of Appeals, 236 S.W.3d 207, 210

(Tex. Crim. App. 2007) (orig. proceeding); State ex rel. Hill v. Court of Appeals for the Fifth Dist.,

34 S.W.3d 924, 927 (Tex. Crim. App. 2001) (orig. proceeding). An act is ministerial if it does not

involve the exercise of any discretion and the relator has a clear right to relief. State ex rel. Hill,

34 S.W.3d at 927; In re Daisy, 156 S.W.3d 922, 924 (Tex. App.—Dallas 2005, orig. proceeding).

The relief sought must be clear and indisputable, such that its merits are beyond dispute. See State

ex rel. Hill, 34 S.W.3d at 927-28; Daisy, 156 S.W.3d at 924.




       1
           The actual penal code offense under section 22.02 of the Texas Penal Code is aggravated
assault against a public servant. Tex. Penal Code Ann. § 22.02 (b)(2)(B) (West 2011). A peace
officer is a public servant. Id. §§ 1.07(a)(36), (41)(A).

                                                  2
                                           DISCUSSION

A. Jail Time Credit

               Subsequent to the filing of his petition for writ of mandamus, Morris filed a

supplemental record containing a file-marked copy of the trial court’s Nunc Pro Tunc Judgment of

Conviction. This judgment reflects that the trial court granted Morris the jail time credit he was

requesting. Therefore, because Morris has already received the relief he now seeks through

mandamus, this portion of his petition is moot.2


B. Specific Performance

               In his petition, Morris complains that the trial court has failed to grant his motion for

specific performance to enforce the negotiated plea agreement. He contends that the trial court has

a ministerial duty to enforce the terms of the plea-bargain agreement and asks this Court to order the

trial court to issue orders to enforce the “out-of-state physical custody term” that he claims was part

of the plea agreement.


       1. Plea Bargains

               A plea bargain is a contractual arrangement between the State and the defendant.

Moore v. State, 295 S.W.3d 329, 331 (Tex. Crim. App. 2009); Ex parte Moussazadeh,

64 S.W.3d 404, 411 (Tex. Crim. App. 2001); Ortiz v. State, 933 S.W.2d 102, 104 (Tex. Crim. App.

1996). When a trial court gives express approval for a plea agreement, it binds all necessary parties


        2
           We have received a copy of a district court order purporting to deny and dismiss as moot
this petition for writ of mandamus because the court had issued a nunc pro tunc judgment granting
Morris the jail time he seeks in this petition. However, as the Respondent, the district court does not
have the authority to deny or dismiss the instant petition.

                                                   3
to the agreement—the defendant, the State, and the court—to a contract. Bitterman v. State,

180 S.W.3d 139, 142 (Tex. Crim. App. 2005); Ortiz, 933 S.W.2d at 104; Wright v. State,

158 S.W.3d 590, 593-94 (Tex. App.—San Antonio 2005, pet. ref’d).

               Thus, once a trial court has accepted a plea agreement, it has a “ministerial,

mandatory, and non-discretionary duty” to enforce the plea bargain it approves. Perkins v. Court of

Appeals for the Third Supreme Judicial Dist., 738 S.W.2d 276, 284-85 (Tex. Crim. App. 1987);

Wright, 158 S.W.3d at 595; In re Gooch, 153 S.W.3d 690, 694 (Tex. App.—Tyler 2005,

orig. proceeding) (mandamus relief granted when trial court violated mandatory duty to enforce

plea-bargain agreement). Further, once approved by the trial court, the defendant may insist on the

benefit of his plea agreement with the State. Blanco v. State, 18 S.W.3d 218, 220 (Tex. Crim. App.

2000); see Bitterman, 180 S.W.3d at 142-43; Wright, 158 S.W.3d at 593-94. If such agreement with

the State can be enforced, the defendant is entitled to seek specific performance of the plea

agreement; if the agreement cannot be enforced, the defendant is entitled to withdraw his plea.

Bitterman, 180 S.W.3d at 143; Perkins, 738 S.W.2d at 283-284; Wright, 158 S.W.3d at 594.

               General contract law principles apply to the review of issues involving the content

of a plea agreement in a criminal case. Moussazadeh, 64 S.W. 3d at 411; Brunelle v. State,

113 S.W.3d 788, 790 (Tex. App.—Tyler 2003, no pet.); Smith v. State, 84 S.W.3d 36, 40 (Tex.

App.—Texarkana 2002, no pet.). Thus, we look to the written plea agreement, as well as the

formal record of the plea proceedings, to determine the terms of the plea agreement and

discern the obligations of the parties. See Moussazadeh, 64 S.W. 3d at 411-12; Costilow v. State,

318 S.W.3d 534, 537 (Tex. App.—Beaumont 2010, no pet.); see also Sun Oil Co. v. Madeley,



                                                4
626 S.W.2d 726, 728 (Tex. 1981); Danciger Oil & Ref. Co. v. Powell, 154 S.W.2d 632, 635 (Tex.

1941). Any finding that a particular plea-bargain term formed an essential part of the plea agreement

must be founded upon the express terms of the written plea agreement itself, the formal record of

the plea hearing, or the written or testimonial evidence submitted by both the prosecution and

applicant in a habeas corpus proceeding. See Moussazadeh, 64 S.W.3d at 412.

                We look beyond the written agreement or record and imply a covenant or term only

when necessary “to effectuate the intention of the parties as disclosed by the contract as a whole.”

Moussazadeh, 64 S.W.3d at 411 (quoting Danciger, 154 S.W.2d at 635); HECI Exploration Co.

v. Neel, 982 S.W.2d 881, 888 (Tex. 1998). An implied covenant or term is sufficiently necessary

to the parties’ intentions only if the obligation “was so clearly within the contemplation of the parties

that they deemed it unnecessary to express … .” Moussazadeh, 64 S.W.3d at 411 (quoting Danciger,

154 S.W.2d at 635). We will not imply a term unless it appears from the plea agreement’s express

terms that both parties clearly contemplated this element or covenant. See Moussazadeh, 64 S.W.3d

at 411-12; HECI, 982 S.W.2d at 888; see also In re Bass, 113 S.W.3d 435, 743 (Tex. 2003) (implied

covenants not favored by law and will not be read into contracts except as legally necessary to

effectuate plain, clear, unmistakable intent of parties).


        2. The Plea Bargain

                On February 15, 2007, Morris entered a plea of nolo contendere to the lesser-included

offense of aggravated assault on a peace officer with a deadly weapon pursuant to a plea bargain.

In exchange for the no-contest plea, the State recommended a sentence of 28 years in the Texas

Department of Criminal Justice. The State also indicated on the record that it had no objection to

                                                   5
the sentence running concurrent with any sentence Morris might receive on his Colorado offenses.3

In accepting the plea and discussing the possibility of concurrent sentences, the trial judge clearly

explained—and made sure that Morris understood—that the plea bargain was not binding on

Colorado because the trial court did not have authority to bind Colorado authorities. Morris stated

that he understood. There was no mention in open court at the time of the plea of Morris’s serving

his Texas sentence in Colorado, although the plea paperwork stated that the State did not object to

Morris serving his time in Colorado.

               At the sentencing hearing on April 12, 2007, after the trial court indicated that it

was going to reject the original plea bargain, Morris again entered a plea of nolo contendere to the

lesser-included offense of aggravated assault on a peace officer with a deadly weapon, along with

a plea of true to the deadly weapon allegation pursuant to a modified plea bargain.4 The only change

in the plea bargain was confinement for 30 years in the Texas Department of Criminal Justice instead

of 28 years. During the sentencing, the trial court again explained to Morris that the Colorado

authorities were not bound by any actions taken by the trial court. Morris again communicated

his understanding.




       3
         The record reflects that Morris had multiple felony charges pending in Clear Creek County,
Colorado—second degree assault, second degree kidnapping, and aggravated robbery—relating to
the kidnapping and assault of a woman, as well as multiple felony charges pending in Garfield
County, Colorado—five felony counts of menacing with a deadly weapon for threatening five
individuals with a knife and one charge of child abuse.
       4
           The record reflects that the Honorable Jack Robison was the district judge who presided
over the plea hearing and accepted Morris’s no contest plea, but the Honorable Gary L. Steel was
the district judge who presided over the sentencing hearing and accepted the modified plea bargain.

                                                 6
       3. No “Out-of-State Physical Custody” Term

               Upon review of the record and applying general contract law principles, we find that

Morris is not entitled to specific performance. While Morris is entitled to have his plea bargain

enforced, the plea-bargain agreement between Morris and the State in this case did not include an

agreement that Morris would serve his Texas penitentiary sentence in the Colorado Department of

Corrections. Contrary to Morris’s claim, there was no “out-of-state physical custody” term in the

plea agreement.

               The record shows that Morris entered into a plea bargain with the State where he

agreed to plead no contest to the lesser-included offense of aggravated assault with a deadly weapon

in exchange for the State’s recommendation of a prison term of 30 years in the Texas Department

of Criminal Justice. Morris’s plea-bargain agreement with the State is set out on a standardized form

entitled Negotiated Plea, Guilty Plea Memorandum.5 The agreement concerning his pending

criminal charges in Colorado was addressed in a section entitled “[o]ther punishment

recommendations.” Specifically, the plea paperwork contained the following notations:

       “THE STATE DOES NOT OBJECT TO ANY CHARGES ARISING PRIOR TO
       THE DATE OF THIS OFFENSE BEING SENTENCED SO AS TO RUN
       CONCURRENT WITH THIS SENTENCE SHOULD THE JURISDICTIONS IN
       SUCH OTHER CASES CHOOSE TO DO SO. STATE DOES NOT OBJECT TO
       [THE DEFENDANT] DOING HIS TIME IN COLORADO.”




       5
         The memorandum admitted as State’s Exhibit 1 at the plea hearing reflects the initial
28-year sentence. Apparently, the paperwork was not changed when the plea agreement was
subsequently modified.

                                                 7
These statements were hand-written and initialed by the District Attorney. There is no other mention

or reference to Morris’s Colorado charges in the plea paperwork. The record shows that Morris

initialed each page of the plea memorandum and signed this written plea agreement.

               During the plea hearing, the trial court admonished Morris regarding the court’s

authority, or lack thereof, to affect the Colorado authorities. When discussing the sentence in the

instant case running concurrently with any Colorado sentence, the trial court explicitly informed

Morris that the plea bargain was not binding upon Colorado because he “wouldn’t have any right to

bind Colorado, for sure.” Morris indicated that he understood the limitations on the court’s

authority. There was no verbal mention whatsoever of Morris serving his Texas sentence in

Colorado at the time of the plea. Thus, when the trial court accepted the plea-bargain agreement, the

only agreement concerning Morris’s Colorado charges was that: (1) the State would not object to

the Texas sentence running concurrently with any future Colorado sentence, and (2) the State would

not object to Morris serving the Texas sentence in Colorado. There was no agreement that Morris

would serve his sentence in Colorado, only that the State would not object to such.6

               At the sentencing hearing, the plea-bargain agreement was modified as to the length

of confinement but was not otherwise altered. Thus, the agreement concerning Morris’s Colorado

charges was unchanged and remained only that: (1) the State would not object to concurrent

sentences, and (2) the State would not object to the Texas sentence being served in Colorado. In

addressing the possibility of concurrent sentences, the trial court once again explained his lack of


       6
          In fact, the trial court would have no authority to order the Colorado Department of
Corrections to accept and house a Texas inmate. See, e.g., Ex parte Young, 684 S.W.2d 704, 707
(Tex. Crim. App. 1985) (Onion, P. J., dissenting).

                                                 8
authority over Colorado authorities and explicitly reminded Morris that Colorado had not entered

into any agreement with Texas concerning Morris’s charges. The judge admonished Morris that the

actions of the trial court regarding his Texas sentence “ha[d] zero affect [sic] on what happens in

Colorado.” Once again Morris indicated that he understood.

               In addressing the issue of Morris serving his Texas sentence in Colorado, the trial

court expressed during the sentencing hearing that it had “no interest” in Morris serving his time in

Texas or Colorado “as long as he’s in a penitentiary somewhere, I have no interest.”7 However, there

was no express agreement that Morris would serve his Texas sentence in Colorado. Such an

agreement was not contained in the plea-bargain agreement, nor did, or could, the trial court’s

comment create such a term. See Moore, 295 S.W.3d at 332 (plea-bargain agreement is solely

between State and defendant so only State and defendant may alter terms of agreement; trial court

commits error if it unilaterally adds un-negotiated terms to plea-bargain agreement); Costilow,

318 S.W.3d at 537 (role of trial judge is to follow or reject plea agreement, not to modify its terms);

see also Tex. Code Crim. Proc. Ann. art. 26.13(a)(2) (West Supp. 2010). The instant plea-bargain

agreement involved only the agreement that the State would not object to Morris’s serving his Texas

sentence in Colorado, not an agreement that Morris would serve his Texas time in Colorado. That

is the agreement that both the plea paperwork and the record of the plea proceedings reflect.



        7
          Although not entirely clear from the record, some of the trial court’s remarks could be
construed as suggesting that serving the Texas time in Colorado was part of the plea agreement.
However, to the extent the court’s remarks are construed in this way, the trial court appears to have
misspoken, as the plea paperwork did not contain any provision for Morris to serve his Texas
sentence in Colorado. The plea agreement simply involved the State not objecting to Morris serving
his time in Colorado.


                                                  9
                Morris acknowledges that the express plea agreement only involved the State’s “non-

objection,” but he contends that this “non-objection” clause does not clearly express the State’s

intent, or his expectation. He argues that there was an implied promise of an interstate transfer to

the Colorado Department of Corrections and that the plea agreement contract is ambiguous as to this

purported term of the plea agreement. We disagree. The plea-bargain memorandum and the record

of the plea hearing both clearly reflect the terms of the plea-bargain agreement. These terms did not

include an agreement that Morris would serve his time in Colorado or that the State would arrange

for or facilitate Morris’s transfer to the Colorado penitentiary. They only included an agreement that

the State would not object to Morris serving his Texas time in Colorado. The record reflects that the

State fulfilled its part of the agreement by explicitly stating in the plea paperwork that “the State does

not object to [the defendant] doing his time in Colorado.”8 Morris may not enforce specific

performance of a term not appearing in the written plea agreement document or the record. See Ex

parte Williams, 758 S.W.2d 785, 786 (Tex. Crim. App. 1988).

                This Court cannot discern any “out-of-state physical custody” agreement—either

explicit or implicit—from this record. The negotiated plea-bargain agreement included a “no



         8
           Morris argues that “the State” is attempting to avoid its obligation of the “‘no[n]
object[ion]’ to the out-of state physical custody term” because the Texas Department of Criminal
Justice (TDCJ) has denied his request for an interstate transfer. The State of Texas is represented
in criminal prosecutions by the local district attorney, whereas TDCJ is the state agency responsible
for the incarceration of criminal offenders. Morris argues, but cites no authority for his proposition,
that the administrative decisions of TDCJ should be controlled by the plea-bargain agreement of the
local prosecutor. Because we find that no “out-of-state physical custody” term was part of the plea-
bargain agreement, we do not address this contention other than to note that the local prosecutor
acting on behalf of the people of the state of Texas in a criminal proceeding is not the same as a state
agency executing the administrative power of the state. See State v. Brabson, 976 S.W.2d 182,
186-87 (Tex. Crim. App. 1985) (Womack, J., concurring).

                                                   10
objection to out-of-state custody” term, not an “out-of-state physical custody” term. Thus, Morris

is asking for specific performance of a term not part of the plea-bargain agreement to which he is

not entitled.


                                         CONCLUSION

                Morris has already received the jail time credit he seeks and is not entitled to the

specific performance he requests. Accordingly, we deny his mandamus petition.



                                              __________________________________________

                                              J. Woodfin Jones, Chief Justice

Before Chief Justice Jones, Justices Pemberton and Henson

Denied

Filed: December 29, 2011




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