Opinion filed October 11, 2018




                                        In The


        Eleventh Court of Appeals
                                      __________

                                 No. 11-16-00298-CR
                                      __________

                     COLBY TAYLOR LEE, Appellant
                                           V.
                     THE STATE OF TEXAS, Appellee


                    On Appeal from the County Court at Law
                             Erath County, Texas
                         Trial Court Cause No. 45,758


                                     OPINION
      This appeal arises from a pretrial intervention agreement. Specifically, it
presents the question of whether or not a defendant in Texas is entitled to an
evidentiary hearing if the State believes that he has violated a provision of the pretrial
intervention agreement. Under the limited statutory framework in Texas for pretrial
intervention/pretrial diversion agreements, we conclude that a defendant is not
entitled to such a hearing. We affirm.
                                 Background Facts
      Colby Taylor Lee was charged by information and complaint with driving
while intoxicated.     He subsequently entered into a “Pre-Trial Intervention
Agreement” with the State. In the agreement, Appellant waived his right to a speedy
trial and agreed to abide by certain conditions during a “2 year probation term”
starting on the date of the agreement. Among those conditions were that Appellant
would “[a]void injurious or vicious habits and abstain from the use of unlawful
controlled substances, dangerous drugs or marijuana, in any form, and not use
alcoholic beverages” and “avoid places and persons of harmful or disreputable
character . . . and not associate with persons who possess, sell, or use controlled
substances, dangerous drugs or marijuana.” Appellant further agreed that, if he
violated the terms of the agreement during the probation period, he would appear in
court, enter a plea of guilty or no contest, and allow a stipulation of evidence to be
offered by the State without objection. In this regard, Appellant also executed a
stipulation of evidence as a part of the agreement.
      One year later, Appellant was arrested for an offense alleged to have occurred
in Somervell County. Based upon this subsequent arrest, the State believed that
Appellant had violated the terms of the agreement, and it requested the trial court to
set the case for a bench trial. The trial court proceeded to a hearing on the State’s
request. The State alleged at the hearing that Appellant was pulled over, that he was
driving a vehicle that was not registered to him, that he admitted to drinking alcohol,
and that there was marihuana in the vehicle. Appellant had a passenger with him,
who later admitted to possessing the marihuana. Based on this incident, the State
alleged that Appellant had violated the terms of the pretrial intervention agreement.


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The State represented to the trial court that it based these allegations on an offense
report and a video taken at the time of the arrest. However, the State did not produce
these items, nor did it offer any other evidence of Appellant’s alleged violation of
the agreement.
      Appellant argued that the trial court should require the State to put on evidence
of the alleged violation of the pretrial intervention agreement. The trial court
disagreed, stating, “[T]he Court’s satisfied there was a violation.” The trial court
then admitted the pretrial intervention agreement into evidence as an exhibit, found
Appellant guilty of driving while intoxicated, and proceeded to the issue of
punishment. The trial court accepted the State’s recommendation and sentenced
Appellant to 180 days in the county jail, probated for eighteen months.
                                       Analysis
      Pretrial intervention/pretrial diversion is a practice that allows a defendant an
opportunity to delay a finding of guilt so that he may complete a program and have
his charges dismissed. Fisher v. State, 832 S.W.2d 641, 643–44 (Tex. App.—
Corpus Christi 1992, no pet.). Generally, it involves a written agreement between
the State and the defendant where the defendant agrees to comply with certain
conditions for a specified period of time and the State agrees to dismiss the charges
if the defendant successfully complies with the agreement. Id.
      In his sole issue, Appellant contends that he was denied due process when the
trial court failed to hold an evidentiary hearing and require the State to produce
evidence that he violated the pretrial intervention agreement. He asks us to vacate
his conviction for the purpose of remanding the case back to the trial court for a “due
process evidentiary hearing,” ostensibly to be reinstated on pretrial intervention.
      This appears to be an issue of first impression in Texas. The reported Texas
cases addressing pretrial intervention have addressed a defendant’s right or


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entitlement to initially be placed on pretrial intervention, also known as pretrial
diversion. See Tope v. State, 429 S.W.3d 75 (Tex. App.—Houston [1st Dist.] 2014,
no pet.). Texas courts have repeatedly determined that defendants do not have a
right or entitlement to be placed into a pretrial intervention or pretrial diversion
program. Id. at 81–82.
      The Texas legislature has addressed pretrial intervention in only a limited
manner. Tope, 429 S.W.3d at 81. The Government Code authorizes the Community
Supervision and Corrections Department to supervise defendants in pretrial
intervention programs. TEX. GOV’T CODE ANN. § 76.011(a) (West Supp. 2018). The
Code of Criminal Procedure authorizes a district attorney, criminal district attorney,
or county attorney to collect fees from defendants in pretrial intervention programs.
TEX. CODE CRIM. PROC. ANN. art. 102.0121(a) (West 2018).             Additionally, a
defendant is entitled to have his arrest record expunged upon successful completion
of pretrial intervention. Id. art. 55.01(a)(2)(A)(ii)(b). However, the legislature has
provided no framework for determining a defendant’s eligibility for pretrial
intervention, and it has established no procedures for the removal of a defendant
from a pretrial intervention program based upon an alleged violation of the
agreement. Thus, the organization and administration of a pretrial intervention
program is left up to the prosecutor. See Tope, 429 S.W.3d at 81–82.
      Prosecutors have broad discretion in deciding which cases to prosecute.
Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978); Neal v. State, 150 S.W.3d 169,
173 (Tex. Crim. App. 2004). In determining which cases should be prosecuted, the
judiciary may not substitute its judgment for that of the prosecutor. See Murphy v.
Sumners, 112 S.W. 1070, 1071 (Tex. Crim. App. 1908) (refusing to issue a writ of
mandamus ordering the county attorney to prosecute a case). In Texas, pretrial
intervention programs stem from “long-established principles of prosecutorial


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discretion in determining which cases to prosecute and what charges, if any, to file.”
Tope, 429 S.W.3d at 81.
      A defendant is entitled to procedural due process when he is being deprived
of a protected liberty or property interest. Bd. of Regents v. Roth, 408 U.S. 564, 569
(1972); Ex parte Montgomery, 894 S.W.2d 324, 327 (Tex. Crim. App. 1995). The
defendant asserting a due process right “must show an entitlement,” and “the interest
at issue must ‘amount to more than a unilateral hope.’” Tope, 429 S.W.3d at 81
(quoting Montgomery, 894 S.W.2d at 327). A defendant has no right or entitlement
to enter into a pretrial intervention program, and due process rights are not
implicated by being excluded from such a program. Id.
      Appellant contends that pretrial intervention agreements are analogous to plea
bargain agreements and deferred adjudication. Therefore, Appellant contends, in
the absence of statutory guidance, due process requires that the revocation of a
pretrial intervention agreement should be treated in a manner similar to the
revocation of community supervision after being placed on deferred adjudication,
with a defendant being entitled to an evidentiary hearing and a finding by a
preponderance of the evidence that he has violated the pretrial intervention
agreement.
      The Supreme Court has held that, in order for a plea bargain to be enforceable
against a defendant, the prosecutor must fulfill its end of the bargain. Santobello v.
New York, 404 U.S. 257, 262 (1971). Relying on Santobello, the Fifth Circuit held
that a pretrial diversion agreement is analogous to a plea bargain and that a trial court
is entitled to ensure that the prosecutor lives up to its side of the bargain before
enforcing the agreement. United States v. Hicks, 693 F.2d 32, 33–34 (5th Cir. 1982).
      Appellant relies upon Hicks to assert that he was entitled to a hearing on his
alleged violation of the agreement. In Hicks, the defendant entered into a pretrial


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diversion agreement with the United States Attorney and agreed to abide by certain
conditions. 693 F.2d at 33. Nine months later, the defendant’s probation officer
determined that he violated the agreement and referred the case back to the United
States Attorney, who elected to prosecute the defendant. Id. The trial court
conducted a hearing regarding the defendant’s alleged violation of the agreement
and heard testimony from both parties. Id. On appeal, the government argued that
the trial court lacked jurisdiction to review the United States Attorney’s decision to
terminate the defendant from the program. Id. The Fifth Circuit disagreed, holding
that “the court was entitled to hear evidence on the violations to make sure that the
government had lived up to its side of the bargain.” Id. The court, however, went
on to explain:
      Our holding is of a limited nature. We do not decide that the court is
      required to hold a hearing prior to termination of the agreement, with
      or without request by defendant. We simply hold that in this case the
      court was entitled to decide whether defendant should be held to his
      waiver of speedy trial.
Id. at 34. Hicks is distinguishable because the trial court in that case elected to
conduct a hearing on the defendant’s alleged violation of the diversion agreement.
      Other jurisdictions have addressed this issue. Some jurisdictions have held
that termination from a pretrial intervention program can occur without a hearing.
See, e.g., State v. Board, 565 So. 2d 880, 881 (Fla. Dist. Ct. App. 1990) (holding that
to compel the prosecutor to reinstate pretrial diversion would be a violation of
prosecutorial discretion); Deurloo v. State, 690 N.E.2d 1210, 1212–13 (Ind. Ct. App.
1998) (holding that the defendant was not entitled to a hearing because termination
of pretrial diversion does not implicate a liberty interest). Other jurisdictions require
a hearing. See, e.g., State v. Wilson, 443 A.2d 252, 257–58 (N.J. Super. Ct. Law
Div. 1981) (holding that the defendant is statutorily entitled to a “summary hearing”
but that due process does not require a full evidentiary hearing in every case); Layton

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City v. Stevenson, 337 P.3d 242, 245 n.5 (Utah 2014) (citing a Utah statute allowing
termination of a plea in abeyance agreement after an evidentiary hearing); State v.
Marino, 674 P.2d 171, 175–76 (Wash. 1984) (holding that, in order to terminate
pretrial diversion, the trial court must make a finding that termination is reasonable
and clearly state the evidence upon which the court relied).
      Most of the jurisdictions requiring a hearing have based their determination
on a statute requiring a hearing. As we have noted, there is no statutory requirement
in Texas for a hearing whenever a violation of a pretrial intervention/pretrial
diversion agreement is alleged. In the absence of a statute requiring a hearing, we
hold that Appellant was not entitled to an evidentiary hearing to determine whether
he violated the terms of his pretrial intervention agreement in this case.
      Appellant’s reliance on the procedural rights afforded defendants placed on
deferred adjudication is misplaced. Pretrial intervention differs from deferred
adjudication. In deferred adjudication cases, the defendant has a statutory right to a
hearing on whether the court will proceed with an adjudication of guilt on the
original charge. CRIM. PROC. art. 42A.108(b). No such statutory right exists for
defendants who enter into pretrial intervention agreements. Further, a defendant
may only be placed on deferred adjudication community supervision “if in the
judge’s opinion the best interest of society and the defendant will be served” by such
a placement and only “after receiving a plea of guilty or nolo contendere, hearing
the evidence, and finding that it substantiates the defendant’s guilt.”               Id.
art. 42A.101. Pretrial intervention, in contrast, is offered at the discretion of the
prosecutor, and there is no requirement that it be offered only after a finding of guilt.
Tope, 429 S.W.3d at 81.
      Moreover, a defendant charged with driving while intoxicated is not eligible
for deferred adjudication under Article 42A.102 of the Texas Code of Criminal


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Procedure. CRIM. PROC. art. 42A.102(b)(1)(A); TEX. PENAL CODE ANN. § 49.04
(West Supp. 2018); see In re Watkins, 315 S.W.3d 907, 908 (Tex. App.—Dallas
2010, orig. proceeding). Thus, the benefit that Appellant could have obtained by
successfully completing pretrial intervention—in the form of a dismissal of his
charge—was something that would not be available to him otherwise.
      One Texas case has noted that “[p]re-trial diversion agreements . . . are akin
to negotiated plea agreements, which have been equated to a contract.” In re D.R.R.,
322 S.W.3d 771, 773 (Tex. App.—El Paso 2010, no pet.) (citing Ex parte Williams,
637 S.W.2d 943, 948 (Tex. Crim. App. 1982)). “If either party fails to keep their
side of the agreement, the proper relief is either specific enforcement or withdrawal
of the agreement.” Id. Thus, if a defendant believes that the State has failed to keep
its end of the bargain, the proper relief is to either withdraw from the pretrial
intervention agreement and enter a plea of not guilty or seek specific performance
of the agreement by filing a motion to dismiss. Id.
      The pretrial intervention agreement that Appellant signed did not include any
provisions requiring a hearing to determine whether he violated the agreement.
Furthermore, the State and Appellant did not agree for the trial court to supervise the
administration of the pretrial intervention program as would be the case with a
defendant placed on regular community supervision or deferred adjudication. See
Deurloo, 690 N.E.2d at 1212.
      We conclude that Appellant was not entitled to an evidentiary hearing on the
State’s contention that Appellant violated the pretrial intervention agreement. Texas
courts have repeatedly held that a defendant does not have a right to participate in
pretrial intervention and that the judiciary has no power to require the State to place
a defendant on pretrial intervention. Tope, 429 S.W.3d at 81. For the same reason,
we hold that a court does not have authority to require the State to keep a defendant


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on pretrial intervention after the State determines that a defendant has violated the
agreement. Thus, a defendant placed on pretrial intervention does not have a liberty
interest requiring a hearing for due process purposes. We overrule Appellant’s sole
issue.
                                         This Court’s Ruling
         We affirm the judgment of the trial court.




                                                                   JOHN M. BAILEY
                                                                   CHIEF JUSTICE


October 11, 2018
Publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Willson, J., and Wright, S.C.J.1

Willson, J., not participating.




         1
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.


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