           IN THE COURT OF CRIMINAL APPEALS
                       OF TEXAS
                              NOS. AP-76,763 & AP-76,764



                       EX PARTE JESUS DE LEON, Applicant

              ON APPLICATIONS FOR WRIT OF HABEAS CORPUS
                  CAUSE NOS. 06-CR-0405-G & 06-CR-2746-G
                      IN THE 404 TH DISTRICT COURT
                     FROM CAMERON COUNTY, TEXAS

      H ERVEY, J., delivered the opinion of the Court in which P RICE, W OMACK,
J OHNSON, K EASLER, C OCHRAN, and A LCALA, JJ., joined. K ELLER, P.J., filed a
concurring opinion in which J OHNSON and C OCHRAN, JJ., joined. M EYERS, J., did
not participate.

                                      OPINION

       Applicant, Jesus De Leon, filed these applications for writ of habeas corpus

brought pursuant to Article 11.07 of the Texas Code of Criminal Procedure. Pursuant to

plea agreements, Applicant pled guilty to one count of aggravated sexual assault of a

child, one count of sexual performance by a child, and twenty-two counts of possession of

child pornography. The trial court granted Applicant permission to appeal, even though

the State argues that Applicant waived all rights to appeal pursuant to a waiver in the plea
                                                                                 De Leon–2

agreements. We filed and set the instant applications to address whether, based on the

totality of the record, waiver of appeal was an element of Applicant’s plea agreements

and whether Applicant’s guilty pleas were rendered involuntary because the State

reindicted Applicant’s brother. We will grant relief.

                       FACTS AND PROCEDURAL HISTORY

       On March 15, 2006, Applicant was indicted by a Cameron County grand jury with

one count of aggravated sexual assault of a child, one count of sexual performance by a

child, and two counts of possession of child pornography in cause number 06-CR-0405-

G. In December of 2006, Applicant and his brother, Adrian, were indicted for an

additional twenty counts of possession of child pornography in cause number 06-CR-

2746-G.

       On January 25, 2007, the State and Applicant appeared before the 404 th District

Court and announced that plea agreements had been reached in both cases. The written

plea agreements reached in each case provided the following, in relevant part:

       13. I understand that if a punishment is being recommended by the
       prosecutor and agreed to by me and my attorney and the punishment
       assessed by the Court does not exceed that agreed punishment that I cannot,
       without the Court’s permission, prosecute an appeal on any matter in this
       case except for those matters raised by written motions filed and ruled upon
       prior to;

       14. I affirm to the Court that there has been no plea agreement in this case
       except as follows: In exchange for the defendant’s plea of guilty in cause
       numbers 06-CR-0405-G and 06-CR-2746-G, the State of Texas agrees to
                                                                                      De Leon–3

       cap punishment at 75 years in the Texas Department of Corrections. The
       State of Texas opposes deferred adjudication in both cause numbers, 06-
       CR-0405-G and 06-CR-2746-G. And I understand that the Court is not
       bound to accept a plea bargain and if the Court rejects a plea bargain I may
       withdraw my plea of guilty; HOWEVER, IF the Court does accept my plea
       bargain, I EXPRESSLY waive all of my rights to appeal. The State of
       Texas will not oppose defendant’s request that the sentences in these two
       cause numbers run concurrently. In addition the State will dismiss the
       entire indictment against the co-defendant [Applicant’s brother] in cause
       number 06-CR-2746-G.1

       At the plea hearing, Judge Abel Limas initially discussed the general

admonishments with Applicant. Then, in discussing the consequences of accepting the

plea bargain agreements, Judge Limas explained,

       [I]f I do accept that plea bargain then you do not have the right to appeal
       your case unless I grant you permission. You can also appeal those matters,
       if I accept your plea bargain, you can appeal those matters that were filed in
       the form of pretrial motions anything that was adverse, any adverse rulings
       that the court made you may appeal, all right? Those are the only two ways
       that you can appeal any of these two cases. Do you understand that?

Applicant responded that he understood, and the State made no objection. Subsequently,

Judge Limas addressed the terms of the plea agreements:

       THE COURT: . . . [I]t says that in exchange for your plea of guilty in both
       cause numbers, the state agrees to cap punishment at 75 years in the Texas
       Department of Criminal Justice Institutional Division. Further, that the
       State of Texas opposes deferred adjudication in both cause numbers, and
       that the state will not oppose your request that the sentences run concurrent.
       In other words, they are going to run together, all right? You don’t finish
       one then start the other one, that’s what that means. Do you understand


       1
        Emphasis is added to distinguish the standard pre-printed language (regular font) from
the handwritten language (italicized).
                                                                                 De Leon–4

       that?

       THE DEFENDANT: Yes.

       THE COURT: All right. And in addition, the state will dismiss the entire
       indictment against the co-defendant in cause number 06-CR-2746. Do you
       understand that?

       THE DEFENDANT: Yes.

       THE COURT: All right. Now, as you know it, that is - - is that the extent
       of the agreement that you know?

       THE DEFENDANT: Yes.

Neither defense counsel nor the State mentioned a waiver of appeal as part of the plea

agreements. The trial court accepted Applicant’s plea of guilty and reset sentencing for a

later date.

       Applicant was sentenced in accordance with the plea agreements, receiving fifty

years for the aggravated sexual assault of a child, twenty years for the sexual performance

by a child, and ten years for each possession-of-child-pornography count. The State filed

a motion to dismiss charges against Applicant’s brother, which the trial court granted on

March 5, 2007. On March 8, 2007, the trial court entered its written judgments of

conviction in both of Applicant’s cases, which specifically provided the following:

       Term of Plea Agreement (In Detail): In exchange for the defendant’s Plea
       of guilty in Cause Number’s [sic] 06-CR-405-G & 06-CR-2746-G, the State
       of Texas agrees to Cap Punishment at 75 Years in the Texas Department of
       Corrections. The State of Texas opposes deferred adjudication in both
       Cause Number’s [sic], 06-CR-405-G & 06-CR-2746-G. The State of Texas
                                                                                    De Leon–5

       will not oppose the defendant’s request that the sentences in these two
       Cause Numbers run concurrently. In addition the State will dismiss the
       entire indictment against the co-defendant in Cause Number 06-CR-2746-
       G.

       On March 14, 2007, Applicant filed a pro se motion to withdraw pleas of guilt, a

pro se notice of appeal, and a pro se motion to appeal with the trial court raising issues as

to the ineffectiveness of trial counsel, and the next day, Applicant filed a pro se motion to

request court-appointed appellate counsel. The State alleges that it was never served with

any of these documents. On March 27, 2007, the trial court appointed appellate counsel

for Applicant, and it certified Applicant’s right to appeal the next day.

       The State, upon learning of the trial court’s certification of Applicant’s right to

appeal, sought specific performance of Applicant’s waiver of appeal in the plea

agreements by filing a Motion to Reconsider Trial Court’s Granting of Permission for

Defendant to Appeal, or in the Alternative to Judicially Acknowledge Defendant has

Reneged on Plea Agreement. The State argued that Applicant explicitly waived his right

to appeal in the plea agreements and that he reneged on the agreements by filing a notice

of appeal. The State also acknowledged that it “will be seeking to re-indict Adrian De

Leon [Applicant’s brother], the co-defendant in cause number 06-CR-2746-G.” At the

hearing on the State’s motion to reconsider, in addressing the voluntariness of the plea

agreements, the following exchange occurred:

       [THE STATE]: So I guess let me clarify, Judge. I think there is two things
                                                                                         De Leon–6

       here, there is a waiver of appeal, which is in the plea agreement. And then
       secondly, there is his request for permission to appeal. I understand the
       Court has granted his permission to appeal, and my question to the Court
       and for clarification on the record is whether or not this Court in any way is
       making any finding that his waiver of appeal was involuntary?

       THE COURT: No, that is not it. All right? On the admonishments, there
       are two, that if the Court accepts your plea, you’re waiving your right to
       appeal and you can only appeal those motions that were filed before, you
       know, before the plea that were entertained by the Court. And the other one
       that we inform them is that even though they plead guilty and they are
       waiving their appeal, unless the Court grants you permission, and that’s
       what I am doing. It has nothing to do that his waiver of appeal was
       involuntary or nothing like that. I am just granting him permission because
       of the letter that he sent to the Court alleging ineffective assistance of
       counsel, which I think is entitled for review on that.

The court made no finding on the record that Applicant had reneged on the agreements.

       Subsequently, the State reindicted Applicant’s brother. See De Leon v. State, No.

13-09-00606-CR, 2011 Tex. App. LEXIS 7029 (Tex. App.— Corpus Christi Aug. 30,

2011). The State does not deny this, but argues that Applicant breached the plea

agreements first.

       On appeal to the Thirteenth Court of Appeals, Applicant’s claims pertained

primarily to the legal representation provided to him at trial and the trial court’s refusal to

allow Appellant to withdraw his guilty plea.2 De Leon v. State, Nos. 13-07-00187-CR &



       2
         On appeal, Applicant raised four issues pertaining to: (1) right to appeal; (2) conflict of
interest; (3) ineffective assistance of counsel; (4) Applicant’s motion to withdraw his guilty plea.
In the conflict of interest issue, Applicant argued that trial counsel represented both brothers in
these matters. De Leon, 2008 Tex. App. LEXIS 3512.
                                                                                 De Leon–7

13-07-00189-CR, 2008 Tex. App. LEXIS 3512 (Tex. App.—Corpus Christi May 15,

2008, pet. ref’d) (memo. op., not designated for publication). The State again attempted

to seek specific performance of the waiver of appeal in the plea agreements, arguing that

Applicant had waived his right to appeal so his appeal should be dismissed. Id. The

court of appeals held that, although Applicant had validly waived appeal, he obtained the

trial court’s permission to appeal and, therefore, was permitted to do so. Id. The court of

appeals went on to affirm Applicant’s convictions. Id. We refused Applicant’s petitions

for discretionary review. De Leon v. State, No. PD-0908-08, 2009 Tex. Crim. App.

LEXIS 179 (Tex. Crim. App. Feb. 4, 2009); De Leon v. State, No. PD-0907-08, 2009

Tex. Crim. App. LEXIS 165 (Tex. Crim. App. Feb. 4, 2009).

       On April 19, 2010, Applicant filed the instant applications for writ of habeas

corpus pursuant to Article 11.07 of the Texas Code of Criminal Procedure. Applicant

contends, among other things, that the State breached the plea agreements by reindicting

his brother. We remanded these applications and ordered the habeas court to make

findings of fact and conclusions of law. Ex parte De Leon, 2010 Tex. Crim. App. Unpub.

LEXIS 360 (Tex. Crim. App. 2010). On remand, after Applicant’s motion to recuse

Judge Limas was granted, the Honorable Benjamin Euresti, Jr. was assigned to sit in

Applicant’s cases. Judge Euresti entered findings of fact and conclusions of law and

recommended that we deny relief. On April 6, 2011, we ordered that the applications be
                                                                                   De Leon–8

held in abeyance because the record was not sufficient to resolve Applicant’s claims. Ex

parte De Leon, 2011 Tex. Crim. App. Unpub. LEXIS 257 (Tex. Crim. App. 2011). We

also instructed the trial counsel to submit an affidavit stating whether he believed that the

plea agreements contemplated that Applicant would waive all rights to an appeal. Id. In

response, trial counsel submitted an affidavit in which he stated, “My understanding was

that [Applicant] pled guilty voluntarily and that no appeal would be forthcoming as a

result of the dismissal of the charges against his brother Adrian De Leon.”

       The habeas court submitted supplemental findings of fact and conclusions of law.

The court concluded that the State did not breach the plea agreements because Applicant

breached first by appealing: “[Applicant] cannot complain that he had no knowledge the

State would re-indict his co-defendant brother when the dismissal of the indictment

against his brother was a bargained for condition.” The habeas court again recommended

that we deny relief.

       We filed and set these applications to determine whether (1) based on the totality

of the record, waiver of appeal was an implicit or explicit element of the plea agreements;

and (2) Applicant’s guilty pleas were rendered involuntary because the State re-indicted

Applicant’s brother after Applicant appealed his convictions. Ex parte De Leon, 366

S.W.3d 203 (Tex. Crim. App. 2012) (not designated for publication).

                           ARGUMENTS OF THE PARTIES
                                                                                       De Leon–9

A. Applicant

       Applicant contends that he had permission of the trial court to appeal and also

argues that his guilty pleas were rendered involuntary because the State breached the plea

agreements by reindicting his brother. Applicant argues that the plea hearing reflects the

terms of the agreements and the intent of the trial court, much like the claims in Alzarka

v. State, 90 S.W.3d 321 (Tex. Crim. App. 2002) (rejecting the idea of binding a defendant

to a boilerplate term in a plea agreement that conflicted with the intent of the parties

reflected at the hearing). He contends that the plea papers and the trial court’s

admonishments made it clear that the parties intended that Applicant would not be able to

appeal unless granted permission by the trial court. Additionally, relying extensively on

Alzarka and Monreal v. State, 99 S.W.3d 615, 622 (Tex. Crim. App. 2003),3 Applicant

contends that a trial court’s permission to appeal trumps a waiver of the right to appeal

contained in printed plea documents. See also Willis v. State, 121 S.W.3d 400 (Tex.

Crim. App. 2003). Applicant argues that this Court should conclude that a free-standing

waiver of appeal was not an element of the plea agreements, and he was given permission

to appeal, meaning that he did not breach the agreements and relief should be granted.

B. The State


       3
        Applicant’s reliance on Monreal is misplaced because the issue in that case dealt with
appealing without the trial court’s consent and the appellant’s waiver of appeal was not part of a
negotiated plea bargain. Monreal, 99 S.W.3d at 615. Here, Applicant was granted permission to
appeal by the trial court.
                                                                                    De Leon–10

       The State responds that, based on the totality of the record, waiver of appeal was

an explicit element of the plea bargain agreements because Applicant knowingly,

voluntarily, and expressly waived appeal as part of his plea agreements. The State argues

that the record is replete with evidence of this, including the trial court’s certificate of

defendant’s right of appeal, which was signed by trial counsel and indicates that these are

plea bargain cases and the defendant has no right to appeal. In addition, trial counsel

certified that he explained Applicant’s rights, that Applicant understood the nature and

consequences of his plea of guilty, and that Applicant knowingly and voluntarily waived

his rights. The State reasons that evidence of Applicant’s waiver of appeal appears in the

State’s immediate response upon learning that the trial court granted permission to appeal.

Cf. Willis, 121 S.W.3d at 402. Additionally, the State contends that the plea of guilty

provides no further evidence of the nature of the waiver of appeal and that the reporter’s

record in these cases in no way compares to the record in Alzarka, in which the trial

judge, the district attorney, and the appellant’s counsel made repeated statements that

appellant could appeal, contradicting and rebutting any presumption raised by the terms

of the plea form executed by the appellant.

       The State also contends that Applicant’s guilty pleas were not rendered involuntary

by the reindictment of his brother because Applicant himself breached the plea

agreements first by seeking permission to appeal and appealing. According to the State,
                                                                                    De Leon–11

because Applicant breached the agreements by appealing his cases, specific performance,

although sought, became impossible, and the State was released from further performance

under the agreements. Thus, the State requests that we deny relief.

                                        DISCUSSION

       In a plea bargain case, “a defendant may appeal only: (A) those matters that were

raised by written motion filed and ruled on before trial; or (B) after getting the trial

court’s permission to appeal.” Tex. R. App. P. 25.2(a)(2); see T EX C ODE C RIM. P ROC.

art. 44.02. A plea bargain is a contract between the State and the defendant. Moore v.

State, 295 S.W.3d 329, 331 (Tex. Crim. App. 2009). Once a plea agreement is finalized

and the trial court binds itself to the terms, the State and the defendant are entitled to the

benefit of the bargain. See Ricketts v. Adamson, 483 U.S. 1, 9-12 (1987); State v. Moore,

240 S.W.3d 248, 251 (Tex. Crim. App. 2007). We apply general contract-law principles

to determine the intended content of a plea agreement. Ex parte Moussazadeh, 64 S.W.3d

404, 411-12 (Tex. Crim. App. 2001). Appellate courts look to the written agreement, as

well as the formal record, to determine the terms of the plea agreement, and we will imply

a term only when necessary to effectuate the intention of the parties. Id.

       Two cases guide our analysis today: Alzarka, 90 S.W.3d 321; and Willis, 121

S.W.3d 400. In Alzarka, the appellant pleaded guilty pursuant to a plea agreement and

signed a plea form that included a waiver of the right to appeal. Alzarka, 90 S.W.3d at
                                                                                   De Leon–12

322. With the trial court’s permission, appellant appealed. We held that the appellant’s

appeal was permitted because the record showed that she did not waive her right to

appeal. Id. at 324. During the plea proceedings, there were multiple discussions about an

agreement for appellant to appeal and that the trial court would preserve issues for appeal.

Id. Accordingly, we determined that the record “directly contradicts and rebuts any

presumption raised by the terms of the boiler-plate plea form signed by appellant and

reflects that appellant did not waive appeal.” Id.

       In Willis, the appellant was charged with possession of a controlled substance with

intent to deliver and entered a guilty plea. Willis, 121 S.W.3d at 400. The plea

documents included a pre-printed statement that the appellant waived his right to appeal.

Id. at 401. On appeal, however, we held that the trial court’s subsequent handwritten

permission to appeal controlled over the appellant’s previous written waiver of the right

to appeal. This allowed the appellant to appeal despite the boilerplate waiver. Id. at 403.

We reasoned that the trial court is in a better position to determine whether the previously

executed waiver of appeal was validly executed and if there was any merit in the

appellant’s desire to appeal. Id.

       Turning to the case at hand, we hold that, given all the evidence in the record, the

waiver of appeal was not a binding element of Applicant’s plea agreements. The explicit

terms of the plea agreement provide minimal insight into the intentions of the State and
                                                                                  De Leon–13

Applicant. The pre-printed language of paragraph 13 provides that Applicant must have

the trial court’s permission to appeal. However, the pre-printed language of paragraph 14

provides that Applicant expressly waives his right to appeal. There is no mention of

waiver of appeal in the handwritten language. Because of this ambiguity, we must

consider the terms of the written plea agreements in light of the entire record, particularly

the discussions at the plea hearing. In doing so, we find it clear that the waiver of appeal

was not intended to override the trial court’s permission to appeal.

       To illustrate, at the plea hearing, the trial judge admonished Applicant that, if he

accepted the plea agreements, Applicant had no right to appeal unless he was granted

permission and could appeal matters filed in the form of pretrial motions. Applicant

affirmed that he understood that “[t]hose are the only ways that [he] can appeal any of

these two cases,” and the State made no objection to the admonishment. Moreover, when

the trial judge described the terms of Applicant’s plea agreements, there was no mention

of a waiver of appeal, and Applicant affirmed that was “the extent of the agreement” that

he knew. Neither counsel nor the State objected to this or even mentioned a waiver of

appeal in the agreements. The State had an opportunity to hold Applicant to the pre-

printed waiver of appeal in the agreements, but it failed to do so at the plea hearing.

       Further, the judgment of conviction sets forth the following,

       Term of Plea Agreement (In Detail): In exchange for the defendant’s Plea
       of guilty in cause Number’s [sic] 06-CR-405-G & 06-CR-2746-G, the State
                                                                                   De Leon–14

       of Texas agrees to Cap Punishment at 75 Years in the Texas Department of
       Corrections. The State of Texas opposes deferred adjudication in both
       Cause Number’s [sic], 06-CR-405-G & 06-CR-2746-G. The State of Texas
       will not oppose the defendant’s request that the sentences in these two
       Cause Numbers run concurrently. In addition the State will dismiss the
       entire indictment against the co-defendant in Cause Number 06-CR-2746-
       G.

       We recognize that, as the State points out, the trial court’s certification of

defendant’s right of appeal did have the section marked indicating that Applicant had no

right to appeal, but this document was neither signed nor dated by the trial judge. We

also recognize that the habeas court concluded that Applicant breached the plea

agreements and that relief should be denied. However, it is significant that the habeas

judge was not the trial judge. Judge Limas presided over the plea hearing and the hearing

on the motion to reconsider. Thus, Judge Limas was in the best position to determine

whether Applicant’s was “entitled to review” on a claim of ineffective assistance of

counsel and whether waiver of appeal would be an issue. See Willis, 121 S.W.3d at 400.

       As in Alzarka, the record “rebuts any presumption raised by the terms of the

boiler-plate plea form signed by [Applicant] and reflects that [Applicant] did not waive

appeal” in the plea agreements. See Alzarka, 90 S.W.3d at 324. Therefore, in light of all

of the evidence in the record, a waiver of appeal was not an essential element of

Applicant’s plea agreements.

       Applicant did not breach the agreements when he obtained the court’s permission
                                                                                  De Leon–15

to appeal and appealed. Consequently, the State breached the agreements when it

reindicted Applicant’s brother. The plea papers provided, and the trial judge stated, that

the charges against Applicant’s brother would be dismissed pursuant to the plea

agreements. Once the trial court accepted the plea agreements, the State was bound to the

terms, and Applicant was entitled to the benefit of his bargain, that is that his brother not

face criminal charges. See Ricketts, 483 U.S. at 1; Moore, 240 S.W.3d at 251.

       As we have previously stated,

       [W]hen a defendant, who has entered a negotiated plea of guilty, challenges
       the conviction and is successful, the appropriate remedy is specific
       performance of the plea, if possible, or if not, withdrawal of the plea, with
       both parties, including the State, returned to their original positions.

Shannon v. State, 708 S.W.2d 850, 852 (Tex. Crim. App. 1986). Here, specific

performance of the plea agreements is not possible. The State cannot withdraw the

charges against Applicant’s brother in cause number 06-CR-2746-G because he has

already been convicted of that offense. See De Leon, 2011 Tex. App. LEXIS 7029.

Thus, the proper remedy is to return both parties to their original pre-plea positions. Id.;

see also Ex parte Adkins, 767 S.W.2d 809, 811 (Tex. Crim. App. 1989).

                                      CONCLUSION

       The judgments in cause numbers 06-CR-0405-G and 06-CR-2746-G in the 404th

District Court of Cameron County are set aside, and Applicant is remanded to the custody

of the Sheriff of Cameron County to answer the charges as set out in the indictments. The
                                                                                De Leon–16

trial court shall issue any necessary bench warrants within ten days after mandate issues

from this Court.

                                                               Hervey, J.

Delivered: June 5, 2013

Publish
