                                                                                              ACCEPTED
                                                                                         06-12-00197-CR
                                                                               SIXTH COURT OF APPEALS
                                                                                    TEXARKANA, TEXAS
                                                                                     2/3/2015 5:14:28 PM
                                                                                         DEBBIE AUTREY
                                                                                                  CLERK

                             No. ___________

          IN THE COURT OF APPEALS, SIXTH DISTRICT                        FILED IN
                                                                  6th COURT OF APPEALS
                                                                    TEXARKANA, TEXAS
                         TEXARKANA, TEXAS                         2/4/2015 8:39:00 AM
                                                                      DEBBIE AUTREY
                  ---------------------------------------------           Clerk


       Duffey v. State, 428 S.W.3d 319 (Tex.App.-Texarkana 2014)
                 NO. 06-12-00197-CR Court of Appeals

        No. 1222696 the 8th District Court Hopkins County, Texas

                  ---------------------------------------------

                     In Re: ROY DEAN DUFFEY,

                                                    Relator

                  ---------------------------------------------

   STATE’S RESPONSE TO PETITION FOR WRIT OF MANDAMUS

        to the 8th Judicial District Court of Hopkins County, Texas

                  ---------------------------------------------

FOR THE STATE

                                    Peter I. Morgan
                                    Assistant District Attorney
                                    8th Judicial District
                                    SBN 14451700
                                    P.O. Box 882
                                    Sulphur Springs, Texas 75483
                                    (903) 885-0641
                                    (903) 885-0640 fax
Contents
TABLE OF AUTHORITIES .......................................................................................................... 3
SUMMARY OF ARGUMENT ...................................................................................................... 4
ARGUMENT .................................................................................................................................. 4
PRAYER ............................................................................................................................................ 8
CERTIFICATE OF SERVICE ................................................................................................................. 8
CERTIFICATE OF COMPLIANCE ........................................................................................................ 9




                                                                                                                                                   2
                                          TABLE OF AUTHORITIES


Cases


Duffey v. State, 428 S.W.3d 319 (Tex.App.-Texarkana 2014) ....................................................... 3
In Re State ex rel. Gary D. Young, County and District Attorney of Lamar County, Texas,
   Relator v. The Sixth Judicial District Court of Appeals at Texarkana, Respondent 236 S.W.3d
   207 (Tex.Crim.App. 2007)......................................................................................................... 5
Perkins v. Court of Appeals for Third Supreme Judicial District of Texas at Austin, 738 S.W.2d
  276 at 285 Tex Crim App 1987 .................................................................................................. 3




                                                                                                                                    3
SUMMARY OF ARGUMENT
 Relator has filed a petition for a writ of mandamus and presented three
arguments urging this court to issue a writ of mandamus in order to
enforce a plea bargain agreement reached on July 3, 2012 between the
State and Relator Roy Dean Duffey. The sole issue for consideration is
whether or not mandamus should issue to enforce the plea bargain
agreement. Relator argues that the agreement is enforceable and the
State contends that the agreement was not final and therefore is not
enforceable.

ARGUMENT
    Mandamus is only proper if the Relator establishes, 1) the act

sought to be compelled is ministerial, and 2) there is no other adequate

remedy at law. A trial court has a “ministerial, mandatory, and non-

discretionary duty” to follow a plea bargain agreement once it has been

approved by the court. However, an agreement is only final after the

judge accepts the agreement and enters a finding of guilt. Perkins v.

Court of Appeals for Third Supreme Judicial District of Texas at Austin,

738 S.W.2d 276 at 285 Tex Crim App 1987.




                                                                           4
      The trial court heard an announcement of a plea agreement on July

3, 2012, the day scheduled for jury selection in Mr. Duffey’s case.

Relator, quoting Joe Jamail in the reknowned Pennzoil case, is now

arguing that “a deal is a deal” and therefore the plea agreement is

enforceable by mandamus. While not disputing the sentiment that “a

deal is a deal”, it is worth noting that a deal is only “a deal” after the

deal is final. In the case of a plea bargain, that means the plea is accepted

by the court and there is an entry of a finding of guilt. Perkins at 283.

The record of that proceeding is before this court and previously

considered on direct appeal in Relator’s case styled Duffey v. State, 428

S.W.3d 319 (Tex.App.-Texarkana 2014). The case was reversed and

remanded for a new trial. The opinion explicitly uses the phrase “new

trial” and in no way orders specific enforcement of the original

agreement of July 3, 2012. The agreement is also referred to as “the as

yet unapproved plea agreement.” Id at 327. On previous consideration of

the July 3 hearing, this Court stated:

           [T]he trial judge reviewed the details of the plea
      agreement with Duffey and the State, accepted Duffey’s plea,
                                                                             5
     and (by the judge’s statements) gave every indication to all in
     attendance that he would accept the plea agreement
     announced at a subsequent sentencing hearing, which was set
     to occur just a few days later. Id at 326.
This statement accurately reflects the circumstances of the July 3 plea

hearing. In particular, the trial court’s explicit statements regarding the

need to finalize the agreement at a subsequent hearing is clear proof that

the plea was not yet accepted by the court. At that stage of the

proceedings, after the July 3 hearing, the agreement was not final, and

therefore not ministerial, mandatory, and non-discretionary as required

for mandamus to issue.

     Relator presents two separate issues regarding 1)whether or not the

State should benefit from the alleged failure by the District Attorney in

failing to inform the victim’s family of the plea bargain agreement

before the hearing on July 3, 2012 and 2) whether or not it could be

proper for a trial judge to reject a plea agreement because the victim’s

family has not been notified. Understanding that these equitable

arguments can certainly be made in good faith to the trial court in terms


                                                                              6
of a proper punishment, these arguments do nothing to transform a

judicial act into a ministerial act.

      The standard for mandamus relief has been discussed by the Texas

Court of Criminal Appeals and while civil contract principles may

provide some guidance, civil law fails to recognize the due process

component in a criminal proceeding that can trigger a finding of a

ministerial duty. See In Re State ex rel. Gary D. Young, County and

District Attorney of Lamar County, Texas, Relator v. The Sixth Judicial

District Court of Appeals at Texarkana, Respondent 236 S.W.3d 207

(Tex.Crim.App. 2007) The Court of Criminal Appeals held

      While a trial court has a ministerial duty to rule upon a
      motion that is properly and timely presented to it for a ruling,
      in general it has no ministerial duty to “rule a certain way on
      that motion.” …In short, it is improper to order a trial court
      to exercise its judicial (as opposed to its ministerial) function
      in a particular way unless the relator has a “clear right to the
      relief sought,” i.e., the law he invokes is definite,
      unambiguous, and unquestionably applies to the indisputable
      facts of the case. Id.at 210.
Relator’s appellate decision on his direct appeal ordered a new trial on

remand. There was no mention of specific performance of the original
                                                                           7
plea bargain. With the case in the exact procedural stance as prior to the

acts giving rise to the necessity of recusal, specific performance of the

original plea bargain could never be construed as being the definite and

unambiguous duty of the trial court. In short, a new trial was ordered,

not merely a reformation of the judgment.

Relator’s Petition For Writ of Mandamus should be denied.

                                 PRAYER
Appellee prays that Relator’s Petition For Writ of Mandamus be denied.

Respectfully submitted,

/s/ Peter Morgan

Peter Morgan




                           CERTIFICATE OF SERVICE
I hereby certify that a true and correct electronic copy of the foregoing

Brief of Appellee has been filed with the Sixth Court of Appeals and has

been served on all all parties in interest.

/s/ Peter Morgan
                                                                             8
Peter Morgan


                     CERTIFICATE OF COMPLIANCE
Relying on the word count function in the word processing software

used to produce this document I certify that the number of words in this

brief is 1,122 words.

/s/Peter Morgan

Peter Morgan




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