Affirmed and Memorandum Opinion filed April 17, 2012.




                                            In The

                          Fourteenth Court of Appeals

                                      NO. 14-11-00266-CR


                             EX PARTE DENNIS JOE PHARRIS

                           On Appeal from the 351st District Court
                                    Harris County, Texas
                               Trial Court Cause No. 1295905


                       MEMORANDUM OPINION

      In this accelerated appeal,1 appellant, Dennis Joe Pharris, contends the trial court
erred by denying his pre-trial application for writ of habeas corpus. We affirm.

                                       I. BACKGROUND

      Appellant was indicted for separate acts of theft in cause numbers 1031225,
1210228, and 1210229. On April 14, 2010, appellant pleaded guilty in cause number
1031225 pursuant to a plea bargain. The trial court accepted the plea bargain and signed
a final judgment. Thereafter, the State continued prosecution in cause numbers 1210228
and 1210229.         Appellant filed a pre-trial application for writ of habeas corpus,
contending that prosecution of these causes is barred by constitutional prohibitions
      1
          See Tex. R. App. P. 31.2.
against double jeopardy.            Specifically, appellant argued jeopardy attached because
dismissal of these cause numbers was a specific term of the plea bargain accepted by the
trial court. The trial court denied appellant’s application.

                             II. HABEAS CORPUS: DOUBLE JEOPARDY

A. Standard of Review and Applicable Law

       An applicant for writ of habeas corpus bears the burden of proving his allegations
by a preponderance of the evidence. Ex parte Legrande, 291 S.W.3d 31, 35 (Tex.
App.—Houston [14th Dist.] 2009, pet. ref’d). We review a trial court’s denial of pre-trial
habeas corpus relief for abuse of discretion and consider the facts in the light most
favorable to the trial court’s ruling. Washington v. State, 326 S.W.3d 701, 704 (Tex.
App.—Houston [1st Dist.] 2010, no pet.). We afford almost total deference to the trial
court’s factual findings if supported by the record, especially when those findings are
based upon an evaluation of credibility and demeanor. Legrande, 291 S.W.3d at 35–36.2
We apply the same deference in reviewing the trial court’s application of law to fact
questions if resolution of those questions depends upon an evaluation of credibility and
demeanor. Id. at 36. However, if the outcome of those ultimate questions turns upon
application of legal standards, we review de novo the court’s determination. Id.

       The Fifth Amendment to the United States Constitution includes a “Double
Jeopardy Clause” which guarantees that a person shall not “be subject for the same
offence to be twice put in jeopardy of life or limb.” U.S. Const. amend. V. The “Double
Jeopardy Clause” prohibits a second prosecution for the same offense after an acquittal or
a conviction as well as the imposition of multiple punishments for the same offense.
Bigon v. State, 252 S.W.3d 360, 369 (Tex. Crim. App. 2008) (citing North Carolina v.
Pearce, 395 U.S. 711, 717 (1969)).3 In a negotiated plea proceeding, jeopardy does not

       2
           The trial court signed detailed findings of fact and conclusions of law.
       3
          Appellant argues the State violated double-jeopardy prohibitions under both the Fifth
Amendment and article I, section 14 of the Texas Constitution. However, we consider appellant’s
double-jeopardy argument as only a federal claim because he does not contend the state provision affords
him any greater protection than the federal provision. See In re R.J.R., 281 S.W.3d 43, 50 (Tex. App.—El
                                                       2
attach until the plea bargain is accepted by the trial court because no issue is presented as
binding on the parties until that time. Ortiz v. State, 933 S.W.2d 102, 106–107 (Tex.
Crim. App. 1996) (considering attachment of jeopardy under federal and Texas
constitutions); Castro v. State, 184 S.W.3d 252, 256 (Tex. App.—Amarillo 2005, pet.
ref’d).

B. Analysis

          It is undisputed that on April 14, 2010, appellant pleaded guilty to theft under
charge number 1031225 pursuant to a plea bargain offered by the State (the “1031225
plea bargain”) and the trial court accepted the 1031225 plea bargain.                     The crux of
appellant’s application is whether, under the 1031225 plea bargain, the State also agreed
to dismiss cause numbers 1210228 and 1210229 if appellant either (1) admitted on the
record that he “used deception to get [victim] to pay $215,000 in cause number 1210228”
or (2) paid victim $135,000.

          Appellant contends the dismissal agreement regarding cause numbers 1210228
and 1210229 was part of the 1031225 plea bargain and he timely tendered $135,000 to
the State, satisfying his responsibility under the agreement.4 Therefore, appellant argues
jeopardy relative to cause numbers 1210228 and 1210229 attached when the trial court
accepted the 1031225 plea bargain.

          The trial court disagreed, finding as follows: “On April 5, 2010, [the State] sent a
fax to [appellant’s attorney] containing a plea-bargain offer regarding cause number
1031225. It also contained a separate plea-bargain offer5 for cause numbers 1210228
and 1210229.” (emphasis added). We conclude that the evidence supports this finding.

          At the hearing on appellant’s application, the prosecutor testified that on April 5,

Paso 2005, no pet.).
          4
          Appellant contends the evidence establishes that he tendered $135,000 to the State and, thus, he
is entitled to specific performance of the 1031225 plea bargain, including the purported promise to
dismiss cause numbers 1210228 and 1210229. Because of our disposition, we need not consider this
issue.
          5
              See footnote 8, infra.

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2010, she faxed appellant’s attorney a plea-bargain agreement with two parts.6 First, in
exchange for appellant’s guilty plea in cause number 1031225, the State would reduce the
charged offense from a first-degree felony to a second-degree felony and recommend
punishment as “time served” and payment of $13.9 million in restitution; the State
afforded appellant until April 8, 2010 to accept this offer. Second, the State would
dismiss cause numbers 1210228 and 12102297 if appellant either (1) admitted on the
record that he “used deception to get [victim] to pay $215,000 in cause number 1210228”
or (2) paid victim $135,000; the State afforded appellant until May 15, 2010 to accept
this offer. Despite the fact that separate acceptance dates applied to each of the State’s
offers, appellant contends the prosecutor admitted a single plea bargain existed because
she described the offers as a “plea bargain agreement” with two parts. However, the
prosecutor clarified she made two separate offers by testifying that the offer pertaining to
cause numbers 1210228 and 1210229 was not “rolled into” the plea bargain pertaining to
cause number 1031225.

        Appellant’s attorney testified that he and appellant agreed to the 1031225 plea
bargain because they both believed, based on discussions with the prosecutor, dismissal
of cause numbers 1210228 and 1210229 was a term of the bargain. Nevertheless,
appellant’s attorney agreed the State’s faxed offer did not include language indicating
that “the State will dismiss 1210228 and 229 if [appellant] were to plead on 1031225.”

        Additionally, the actual plea-bargain agreement signed by appellant and his
attorney, the State, and the trial court contains the terms of the 1031225 plea bargain as
described by the prosecutor. There is no language in the agreement pertaining to the
dismissal of cause numbers 1210228 or 1210229. At the April 14, 2010 hearing, the trial
court asked appellant and his attorney whether they agreed to the terms in the agreement;
both responded affirmatively.


        6
            See footnote 8, infra.
        7
          As part of this second offer, the State also agreed to dismiss cause number 0991356. This cause
has since been dismissed.

                                                   4
       Appellant argues certain evidence establishes that the State offered a single plea
bargain which included dismissal of cause numbers 1210228 and 1210229. During the
April 14, 2010 hearing, the prosecutor stated, “[N]o new charges are being anticipated in
anything dealing with the cases [appellant] has pled on, nor on cases that the State is
anticipating dismissing.”       (emphasis added).   Appellant contends the prosecutor’s
averment that appellant has “pled on” cases referred to cause numbers 1031225,
1210228, and 1210229. However, it was within the trial court’s purview to find that the
prosecutor misspoke and reconcile any inconsistencies in the evidence.

       Additionally, during the same hearing after the trial court accepted the 1031225
plea bargain, the following exchange occurred:

       [Trial Court:] Mr. Pharris, I just pray that nothing happens between now
       and the 15th.
       [Defendant:] Really, so do I.
       [Trial Court:] So we can end this and end our very exciting relationship at
       this point.

       Appellant argues these statements prove that the trial court intended for the plea
bargain to dispose of all cause numbers pending against appellant. We disagree. The
trial court simply could have been expressing its desire for appellant to comply with the
terms of the dismissal offer.

       Finally, appellant notes that during the same hearing, his counsel explained, “That
on the plea offer [the prosecutor] made to us, there was an A and a B. We haven’t
decided which one we are going to avail ourselves to.” According to appellant, the State
obviously understood that a single plea offer with two parts existed because the State
failed to object or clarify its plea bargain after appellant’s counsel made this statement.
However, from the context, it is clear appellant’s counsel was referring to appellant’s
two options for obtaining dismissal of cause numbers 1210228 or 1210229, i.e., appellant
could either (1) state he used deception or (2) pay the victim $135,000. Thus, the State
had no need to object to or clarify counsel’s statement.


                                             5
        Accordingly, the evidence supports the trial court’s finding that two separate
offers existed: one pertaining to cause number 1031225, and another pertaining to cause
numbers 1210228 or 1210229. Hence, jeopardy did not attach regarding cause numbers
1210228 or 1210229 when the trial court accepted the 1031225 plea bargain.                           See
Ortiz, 933 S.W.2d at 106–07.8

        Finally, for the first time on appeal, appellant argues jeopardy attached in cause
numbers 1210228 or 1210229 because he admitted his guilt regarding those offenses, and
the trial court considered them when determining punishment for cause number 1031225.
A defendant is permitted to admit guilt regarding an unadjudicated offense and request
the trial court to consider the offense when determining punishment for an adjudicated
offense. Tex. Penal Code Ann. § 12.45(a), (b) (West 2011). The State is barred from
prosecuting an unadjudicated offense that the trial court lawfully considered when
determining punishment for an adjudicated offense. Id. § 12.45(c).

        We have concluded the record supports the trial court’s finding that the 1031225
plea bargain was separate from the dismissal offer pertaining to cause numbers 1210228
or 1210229.        The trial court accepted the 1031225 plea bargain, including the
recommended punishment. The record does not demonstrate that the trial court also
considered cause numbers 1210228 or 1210229 when approving the recommended
punishment. Accordingly, assuming we may consider this argument for the first time on
appeal, we hold appellant has not established that section 12.45 applies.

        8
          We recognize the trial court found, and the prosecutor testified, that two separate plea-bargain
offers were made. Technically, the State’s offer concerning cause numbers 1210228 and 1210229 was
not a plea-bargain offer because the State’s offer to dismiss these causes was not contingent upon
appellant’s pleading guilty or nolo contendere. See Dorsey v. State, 55 S.W.3d 227, 232–33 (Tex. App.—
Corpus Christi 2001, no pet.) (concluding agreement was not a plea-bargain agreement because
prosecutor’s punishment recommendation was not contingent upon defendant’s plea). Instead, the State
simply offered to dismiss these causes if appellant performed one of two options. See Tex. Code Crim.
Proc. Ann. art. 32.02 (West 2006) (“Dismissal by state’s attorney”); cf. also Smith v. State, 70 S.W.3d
848, 850–55 (Tex. Crim. App. 2002) (determining level of knowledge trial court must have regarding
specifics of immunity agreement when court dismisses case pursuant to immunity agreement). This
discrepancy is immaterial because it does not affect whether jeopardy attached in cause numbers 1210228
and 1210229; regardless of what the State’s second offer is denominated, it was not part of the plea
bargain accepted by the trial court.

                                                    6
       We overrule appellant’s sole issue and affirm the trial court’s denial of appellant’s
pre-trial application for writ of habeas corpus.




                                           /s/       Charles W. Seymore
                                                     Justice



Panel consists of Justices Frost, Seymore, and Jamison.
Do Not Publish — Tex. R. App. P. 47.2(b).




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