      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-13-00423-CR



                                 The State of Texas, Appellant

                                                v.

                                 Steve Villarreal, Jr., Appellee


    FROM THE DISTRICT COURT OF COMAL COUNTY, 433RD JUDICIAL DISTRICT
         NO. CR2012-019, HONORABLE DIB WALDRIP, JUDGE PRESIDING



                                      NO. 03-13-00657-CV



                       In re The State of Texas, ex rel. Jennifer Tharp




                     ORIGINAL PROCEEDING FROM COMAL COUNTY



                                         OPINION


               The State charged appellee Steve Villarreal, Jr. with three counts of sexual assault

of a child. See Tex. Penal Code § 22.011(a)(2). Villarreal entered into a plea agreement with the

State under which Villarreal agreed to plead guilty to one count of sexual assault in exchange for

the dismissal of the other two counts. The trial court, however, placed Villarreal on deferred
adjudication community supervision for one count of endangering a child and dismissed two of

the sexual-assault counts. See id. § 22.041(c) (defining endangerment of a child).

               In Cause Number 03-13-00423-CR, the State brings an appeal asserting that the

trial court erred in dismissing two of the sexual-assault counts and in ordering that Villarreal be

placed on deferred adjudication community supervision for endangering a child. See Tex. Code

Crim. Proc. art. 44.01(a)–(b) (granting State right to appeal various orders and sentences).

Alternatively, in Cause Number 03-13-00657-CV, the State petitions for a writ of mandamus,

seeking an order from this Court instructing the trial court to withdraw its previous orders and

either (1) enforce the plea agreement as written or (2) accept or reject the plea agreement. We

conditionally grant the mandamus petition in part and dismiss the appeal as moot.


                                        BACKGROUND

               These charges stem from Villarreal’s alleged sexual intercourse with a fourteen-

year-old girl. See Tex. Penal Code § 22.011(a)(2), (c)(1) (defining various sexual acts with child

younger than seventeen years of age as sexual assault). Following negotiations, the State and

Villarreal entered into the plea agreement outlined above. The trial court conducted a plea hearing,

during which it gave Villarreal the proper admonishments, including a recitation of the plea

agreement. Following these admonishments, Villarreal pleaded guilty to one count of sexual assault

of a child.




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                The trial court conditionally accepted the guilty plea, withheld accepting the plea

agreement at that time, scheduled a later punishment hearing, and ordered a pre-sentence investigation

report to be prepared.1 At the punishment hearing, the trial court made the following ruling:


                I am going to find that although the evidence does substantiate your
                guilt to the offense in Count 1 [sexual assault of a child], I am going
                to defer any further findings on a lesser included offense pursuant to
                22.041(c) of the Texas Penal Code, endangering a child, and place
                you on deferred adjudication for a period of 5 years for that . . . .


                After this pronouncement, the following exchange occurred between the trial court

and counsel for the State:


                State: I’m a little confused as to what’s going on.

                Court: I’m deferring adjudication on a lesser included offense. What
                       I’m finding under these circumstances is a lesser included
                       offense. It’s an open plea.

                State: I’m not sure—I’m not sure that’s within an open plea, Your
                       Honor, if it’s an open plea of guilty to a particular offense.
                       That’s my concern.

                ....


        1
          Prior to the punishment hearing, Villarreal, counsel for the State, and the trial court signed
a document entitled “Admonishments, Voluntary Statements, Waivers, Stipulations, Judicial
Confession & Plea Bargain Agreement.” Although this document recites the terms of the plea
agreement, the trial court’s signature indicates only that it was accepting Villarreal’s guilty plea, not
that the court actually convicted Villarreal or accepted the terms of the plea agreement. See Ortiz
v. State, 933 S.W.2d 102, 104 (Tex. Crim. App. 1996) (concluding that trial court’s “acceptance”
of guilty plea without ruling on plea agreement is effectively conditional acceptance subject to final
decision); see also Holland v. State, 112 S.W.3d 251, 255 n.2 (Tex. App.—Austin 2003, no pet.) (“It
would have been error for the court to find appellant guilty without first announcing whether it
would follow the negotiated plea agreement.”).

                                                   3
                Court: I’m either going to follow this line, or my point is, I’m just
                       going to reject the plea, because it’s just so—

                State: I understand.

                ....

                State: The second thing I want to do is be sure that’s a lesser
                       included offense, because I’m not sure it is. And I understand
                       what you’re trying to do, but—

                ....

                Court: Absent the open plea, you know, I might have to agree with
                       you . . ., it might not be, but with the open plea and with
                       the candid discussion between defense counsel, your other
                       assistant, and myself, I think it’s certainly susceptible to that
                       under these circumstances. The third option would be a
                       torpedo, so—


After some additional discussion, the State objected to the trial court’s proposed orders, asserting

that the ruling was inconsistent with the plea agreement. The trial court overruled the State’s

objection, placed Villarreal on deferred adjudication community supervision for endangering a

child, and dismissed two of the counts of sexual assault of a child. This appeal and mandamus

petition followed.


                                            DISCUSSION

                The State filed its appeal, asserting that (1) the trial court erred in dismissing the two

counts of sexual assault and (2) the trial court’s order placing Villarreal on deferred adjudication for

endangerment of a child is an illegal sentence. See Tex. Code Crim. Proc. art. 44.01(a)(1) (granting

State right to appeal order dismissing portions of indictment), 44.01(b) (granting State right to appeal



                                                    4
sentence on ground that sentence is illegal). Pending disposition of the appeal, the State requested,

and this Court ordered, a stay of the trial court proceedings. See id. art. 44.01(e).

               The State now concedes that an order placing a defendant on deferred adjudication

community supervision is not a sentence, and thus the State does not have the right to challenge by

appeal the trial court’s order placing Villarreal on deferred adjudication for endangering a child. See

id. art. 44.01(a) (listing those orders that the State may challenge by appeal). Therefore, the State

has withdrawn its second appellate issue and has filed its petition for writ of mandamus. In the

mandamus petition, the State seeks an order from this Court compelling the trial court to withdraw

its previous orders and either (1) enforce the terms of the negotiated plea agreement or (2) accept or

reject the negotiated plea agreement. The State effectively seeks the same relief—enforcement of

the plea bargain—by mandamus that it seeks on appeal. We will therefore focus the remainder of

our discussion on whether the State is entitled to mandamus relief.

               To be entitled to a writ of mandamus in a criminal case, a relator must demonstrate

that (1) she has no adequate remedy at law and (2) what she seeks to compel is a ministerial act.

See In re State ex rel. Weeks, 391 S.W.3d 117, 122 (Tex. Crim. App. 2013). Even though a remedy

at law may “technically exist,” a party may be entitled to mandamus relief if the remedy is so

“uncertain, tedious, burdensome, slow, inconvenient, inappropriate, or ineffective as to be deemed

inadequate.” Greenwall v. Court of Appeals of the Thirteenth Judicial Dist., 159 S.W.3d 645,

648–49 (Tex. Crim. App. 2005) (internal quotations omitted); see also In re State ex rel. Weeks,

391 S.W.3d at 123. An act is ministerial “when the facts and circumstances dictate but one rational

decision under unequivocal, well-settled . . ., and clearly controlling legal principles” such that the




                                                  5
relator has a clear right to the relief sought. In re State ex rel. Weeks, 391 S.W.3d at 122–23 (internal

quotations omitted). We will examine in turn whether the State has met these two requirements.


No adequate remedy at law

                The State asserts that it has no adequate remedy at law because it cannot enforce the

terms of the plea bargain through an appeal. Specifically, the State claims that because the trial

court’s order placing Villarreal on deferred adjudication is not a final sentence from which the State

can appeal, it cannot receive the benefit of its bargain with Villarreal. Whether the State has an

adequate remedy at law to enforce the terms of a plea agreement is a question of first impression in

this Court.

                One of our sister courts of appeals, however, has addressed a similar issue and

concluded that the State lacked an adequate remedy at law when the trial court failed to adhere to

the terms of a plea bargain. See In re State of Tex., No. 08-12-00165-CR, 2013 WL 634581, at *3–4

(Tex. App.—El Paso Feb. 20, 2013, orig. proceeding) (not designated for publication). In that case,

the trial court purported to accept the defendant’s plea bargain with the State, placed the defendant

on deferred adjudication community supervision for aggravated assault, but refused to make an

affirmative deadly-weapon finding as specifically required by the plea bargain. Id. at *1–2. The

appellate court explained that “[i]t is undisputed that the State cannot appeal the order placing

[defendant] on deferred adjudication. Thus, the State has shown that it does not have an adequate

remedy at law.” Id.

                In this case, the State has the right to appeal the trial court’s order dismissing two

of the sexual-assault counts against Villarreal, and thus the State can challenge certain aspects of

the trial court’s ruling via appeal. See id. art. 44.01(a)(1). However, the State has no means of

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appealing the trial court’s order placing Villarreal on deferred adjudication community supervision

for endangering a child. See In re State of Tex., 2013 WL 634581 at *3. Thus, even if we were to

reverse the trial court’s order dismissing two of the sexual-assault counts, the State would not receive

the benefit of its plea agreement because it would not secure an adjudication for sexual assault.2

                At most, if we reversed the trial court on appeal and reinstated the two sexual-assault

counts, Villarreal might seek to either enforce or withdraw from the plea bargain. This could

potentially return the State to the position of effectuating its plea bargain. However, it is uncertain

that Villarreal would actually seek such relief and, even if he did, it is uncertain that the State would

receive the benefit of its plea agreement. Therefore, we conclude that the State lacks an adequate

remedy at law in this case. See Greenwall, 159 S.W.3d at 648–49 (noting that even though legal

remedy technically exists, remedy may be too uncertain or ineffective to be adequate remedy at law).

The State has satisfied the first element for mandamus relief, and we proceed to determine whether

the State seeks to compel a purely ministerial act. Id.


Ministerial act

                As noted above, mandamus relief will issue only to compel a trial court to perform

a purely ministerial act. See id. A trial court’s act is ministerial if, under the facts of the case and




        2
          The State asserts that one of its objectives in entering into this plea agreement was to
ensure that—regardless of whether Villarreal was placed on deferred adjudication community
supervision or convicted of sexual assault—Villarreal would be required to register as a sex offender.
See Tex. Code Crim. Proc. art 62.001(5)(A) (defining conviction or adjudication, including deferred
adjudication, for various sexual offenses as “reportable conviction or adjudication” for which
accused is required to register as sex offender). An adjudication for endangering a child does not
require Villarreal to register as a sex offender, and thus the State contends that it has not received
the benefit of its bargain. See id. art. 62.001(5) (listing offenses that require sex-offender registration).

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the controlling legal principles at issue, the relator has a clear right to the relief sought. In re State

ex rel. Weeks, 391 S.W.3d at 122–23. “The requirement of a clear legal right necessitates that the

law plainly describes the duty to be performed such that there is no room for the exercise of

discretion.” Winters v. Presiding Judge of the Crim. Dist. Court No. Three, 118 S.W.3d 773, 775

(Tex. Crim. App. 2003).

                It is a well-settled principle of criminal law that “a plea bargain is a contract between

the state and the defendant,” and “only the state and the defendant may alter the terms of the

agreement.” Moore v. State, 295 S.W.3d 329, 331–32 (Tex. Crim. App. 2009). The trial court’s

only role in the plea-bargain process is to advise the defendant whether it will accept or reject the

plea bargain. Id. at 332. If the court accepts the plea bargain, the State cannot withdraw its offer,

and the parties are entitled to specific performance of the bargain. See id.; see also Perkins v. Court

of Appeals for the Third Supreme Judicial Dist. of Tex., at Austin, 738 S.W.2d 276, 283–84 (Tex.

Crim. App. 1987). If the court rejects the plea bargain, the defendant has the right to withdraw his

guilty plea, and then the State has the right to withdraw its offer. See Moore, 295 S.W.3d at 332.

The trial court has no authority to participate in plea-bargain negotiations, and it is reversible error

for the trial court to insert additional, non-negotiated terms into a plea bargain. See id.

                Villarreal asserts that the trial court did not alter the terms of the plea agreement, but

rather acted within its wide discretion to determine the appropriate judgment under the “open” plea.

Specifically, Villarreal claims that because the plea bargain stated that his guilty plea to sexual

assault was open, the trial court had the discretion not only to determine punishment, but also to

determine the offense for which Villarreal would be sentenced. Thus, according to Villarreal, the



                                                    8
trial court merely accepted the plea bargain and acted within its discretion in placing Villarreal on

deferred adjudication community supervision for endangering a child. Under the circumstances of

the present case, we find this argument unpersuasive.

                 First, the plain language of the plea agreement indicates that Villarreal would plead

guilty to and be adjudicated for sexual assault of a child. See Ex parte De Leon, 400 S.W.3d 83, 89

(Tex. Crim. App. 2013) (noting that courts “apply general contract-law principles to determine the

intended content of a plea agreement,” looking to written agreement and formal record to determine

its terms). The plea agreement states that it is an “Open Plea to Count I Only,” and admonished

Villarreal that if he was convicted he could be sentenced for a second-degree felony, consistent

with a conviction for sexual assault of a child. Under the section titled “PLEA AGREEMENT AND

SENTENCING RECOMMENDATION,” the agreement indicates that in exchange for Villarreal’s

guilty plea to sexual assault of a child, the State would recommend that Villarreal get credit for time

served and the State would dismiss the remaining counts. However, the parties did not check the

box indicating that Villarreal could be prosecuted for a lesser-included offense, and nowhere in the

plea agreement do the parties suggest that Villarreal could be adjudicated of some other offense not

included in the indictment. Thus, although the agreement indicates that it is open as to punishment,

there is nothing within the four corners of the plea agreement to indicate that the parties intended

the plea to allow adjudication for any offense the trial court believed appropriate.3 See id. (noting

that court will not imply plea-bargain term unless necessary to effectuate parties’ intent).




       3
           Villarreal has not pointed us to any case that supports his interpretation of an “open” plea.

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               Second, Villarreal’s assertion that in an “open” plea bargain, the trial court has

complete discretion to adjudicate a defendant on any offense would lead to an absurd result. Under

Villarreal’s theory, by entering into an open guilty plea as to punishment, both the defendant and

the State must accept an adjudication for any offense that does not exceed the maximum sentence

of the offense charged, regardless of whether the accused’s guilty plea would support that

adjudication or whether the adjudication is consistent with the indictment. This result would run

afoul of long-standing precedent regarding notice provided by the indictment and sufficiency of

the evidence. See generally Byrd v. State, 336 S.W.3d 242, 246 (Tex. Crim. App. 2011) (discussing

due process requirements for sufficiency of evidence and notice provided by indictment).

               The trial court’s order in this case is inconsistent with Villarreal’s plea and the

indictment. As the State correctly notes, endangering a child is not a lesser-included offense of

sexual assault of a child as charged in this case. See Tex. Penal Code §§ 22.011, 22.041. Generally,

an offense is a lesser-included offense to the offense charged if it can be proven by the same or less

than all the facts required to establish the offense charged. See Tex. Code Crim. Proc. art. 37.09(1).

In this case, Villarreal was charged with sexual assault by intentionally or knowingly causing

the penetration of the female sexual organ of a child with his sexual organ. Endangerment of a

child, by contrast, requires proof that an accused “intentionally, knowingly, recklessly, or with

criminal negligence . . . engages in conduct that places a child . . . in imminent danger of death,

bodily injury, or physical or mental impairment.” Tex. Penal Code § 22.041(c). Thus, endangerment

of a child requires proof of an additional element—the alleged conduct must place a child in danger

of some harm. See Crippen v. State, 368 S.W.3d 630, 632 (Tex. App.—Eastland 2012, pet. ref’d)



                                                 10
(concluding that injury to child is not lesser-included offense of aggravated sexual assault of child

because sexual assault of child does not require proof of injury). Given that endangerment of a child

is not a lesser-included offense of the sexual assault of a child in this case, neither Villarreal’s guilty

plea nor the indictment supports adjudication for that offense. See Byrd, 336 S.W.3d at 246.

                Based on the plain language of the plea bargain, we conclude that the parties intended

for Villarreal to plead guilty to and be adjudicated for one count of sexual assault of a child in

exchange for the State’s recommendation that Villarreal get credit for time served and dismissal of

the remaining two counts of sexual assault of a child. See Ex parte De Leon, 400 S.W.3d at 89

(noting interpret plea bargain like contract). The trial court had no authority to alter the terms of this

agreement, and thus the trial court clearly abused its discretion by placing Villarreal on deferred

adjudication community supervision for a separate offense. See Moore, 295 S.W.3d at 332 (noting

trial court lacks authority to alter terms of plea bargain). Because the trial court failed to perform

its ministerial duty to either enforce or reject the plea agreement, we conclude that the State is

entitled to mandamus relief. See id.; see also Perkins, 738 S.W.2d at 285 (concluding that mandamus

relief appropriate to compel enforcement of plea bargain).

                The State asserts that the trial court accepted the plea agreement, and therefore the

State is entitled to specific enforcement of its bargain. See Moore, 295 S.W.3d at 332 (noting that

if trial court accepts plea bargain, defendant entitled to enforcement of its terms). Thus, the State

requests that we order the trial court to assess punishment for one count of sexual assault. Although

an argument can be made that the trial court conditionally accepted the plea bargain during the initial

plea hearing, see supra n.1, the court’s comments at the punishment hearing indicate that it did not



                                                    11
accept the plea agreement as written. When asked by counsel for the State whether it accepted the

plea agreement, the trial court stated “Well, I’m accepting his plea of guilty.” The court repeatedly

indicated that if it could not place Villarreal on deferred adjudication community supervision for

endangering a child, it would reject the plea agreement.

               Based on this record, we conclude that the trial court has neither accepted nor rejected

the plea agreement at this time; instead, the trial court impermissibly modified the agreement. The

trial court has a ministerial duty to either accept or reject the agreement without modification. See

Moore, 295 S.W.3d at 332. Thus, we conditionally grant the State’s petition for writ of mandamus

in part, order the trial court to withdraw its orders placing Villarreal on deferred adjudication

community supervision for endangering a child and dismissing two of the sexual-assault counts,

and order the trial court to either accept or reject the negotiated plea agreement as agreed to by

Villarreal and the State. If the trial court fails to comply, we will issue the writ. Because our

resolution of the mandamus petition disposes of all issues in this case, we dismiss the State’s appeal

in Cause Number 03-13-00423-CR as moot.



                                               __________________________________________

                                               Scott K. Field, Justice

Before Chief Justice Jones, Justices Pemberton and Field

03-13-00423CR          Dismissed at Moot
03-13-00657-CV         Conditionally Granted in Part

Filed: December 20, 2013

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