           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of the original offer or seek to show that it would have modified or withdrawn the offer.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
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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with just cause, it would have modified or withdrawn its offer prior to its expiration date.”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
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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

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