                                 IN THE
                         TENTH COURT OF APPEALS



                                No. 10-19-00288-CR
                                No. 10-19-00291-CR

                     IN RE ORLANDO DEONTE PIERCE


                                Original Proceeding



                                    OPINION


      In two separate petitions for writ of mandamus, relator, Orlando Deonte Pierce,

challenges the trial court’s orders on motions to enforce a plea bargain in both

proceedings. Specifically, relator contends that the trial court unlawfully rescinded a

plea-bargain agreement; that the trial court had a ministerial duty to approve a plea

bargain in these cases to remedy a violation of effective counsel; and that a prior trial

judge would have accepted the plea before a second attempt at rescission by the State.

For the reasons outlined below, we deny relator’s petitions for writ of mandamus.
                                       I.     BACKGROUND

        In these proceedings, relator was charged by indictment with the offenses of

aggravated assault and violation of a protective order, family violence. As indicated in

relator’s mandamus petitions, on August 27, 2018, the Robertson County District

Attorney’s Office conveyed a plea offer to relator’s court-appointed counsel. According

to relator, the offer was, in exchange for his plea of guilty to both felonies, relator would

receive punishment of fifteen years’ prison time for the aggravated-assault allegation and

ten years’ prison time for the violation of a protective order, family violence, allegation

with the sentences to be served concurrently. The prosecutor indicated that the plea offer

was available only for one week. During the following week, relator spoke with his

appointed counsel and expressed a desire to accept the plea offer. However, appointed

counsel did not convey relator’s acceptance of the plea offer until a day after the

prosecutor’s deadline for accepting the offer passed. Prior to appointed counsel’s attempt

to accept the plea offer, the prosecutor informed appointed counsel, via facsimile, that

the offer had been withdrawn and that any attempt to accept at this time was too late.

The prosecutor replaced the aforementioned plea offer with one of forty years’ prison

time in exchange for relator’s plea of guilty to both felony allegations.

        Thereafter, on May 10, 2019, relator moved the trial court to “enforce the plea

agreement,” arguing that the trial court should enforce the plea offer made by the

prosecutor for fifteen years’ and ten years’ prison for the two charges with the sentences



In re Pierce                                                                           Page 2
to run concurrently. Relator argued that he “should not be punished more severely,

solely due to the failure of defense counsel to convey defendant’s acceptance of the plea

agreement to the District Attorney in a timely fashion.” The trial court initially granted

the request to reopen the plea negotiations and further stated that any plea agreement

reached between the prosecutor and relator would be considered by the court at a later

date. The trial court did not accept or reject any plea at this time.

        After the trial court’s ruling, relator tried again to accept the prosecutor’s original

offer of fifteen years’ and ten years’ prison time for the two charges with the sentences to

run concurrently. However, before the purported agreement could be approved by the

trial court, the State revoked the plea, stating that the withdrawal was due to “newly

discovered evidence” that relator committed a new offense of violation of a protective

order on or about February 26, 2019. Subsequently, the trial court denied relator’s motion

to enforce the plea agreement, stating that there was no agreement to “specifically

perform.” The mandamus record does not contain a certified or sworn copy of this order,

which is the basis of these original proceedings.

                                    II.    STANDARD OF REVIEW

        In a criminal mandamus, the relator must show that he has no adequate remedy

at law and what he seeks to compel is a ministerial act. Bowen v. Carnes, 343 S.W.3d 805,

810 (Tex. Crim. App. 2011); see State ex rel. Young v. Sixth Judicial District Court of Appeals,

236 S.W.3d 207, 210 (Tex. Crim. App. 2007). An act is ministerial if relator can show a



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clear right to the relief sought. Bowen, 343 S.W.3d at 810. A clear right to relief is shown

when the facts and circumstances dictate but one rational decision under “unequivocal,

well-settled (i.e., from extant statutory, constitutional, or case law sources), and clearly

controlled legal principles.” In re State ex rel. Weeks, 391 S.W.3d 117, 122 (Tex. Crim. App.

2013). Mandamus is not available to compel a discretionary act as distinguished from a

ministerial act. See State ex rel. Holmes v. Denson, 671 S.W.2d 896, 899 (Tex. Crim. App.

1984). However, a “discretionary” act can become “ministerial” when the facts and

circumstances dictate but one rational decision. In re State of Tex., 162 S.W.3d 672, 675

(Tex. App.—El Paso 2005, orig. proceeding) (citing Buntion v. Harmon, 827 S.W.2d 945,

948 n.2 (Tex. Crim. App. 1992)).

                                             III.    ANALYSIS

        “A plea agreement is a contractual arrangement. Until all of the necessary parties

agree to the terms of the contract, the agreement is not binding.” Ortiz v. State, 933 S.W.2d

102, 104 (Tex. Crim. App. 1996).

        A plea bargain consists of three parts: a plea of guilty, the consideration for it, and
        the approval by the court of the agreement. The bargain is the consideration
        exchanged to the defendant for the plea of guilty. In order for the contract to
        be binding, the trial judge must approve and accept both aspects of it. When
        presented with a plea bargain, the court has the right to accept or reject it;
        however, it may not hold the defendant to his plea of guilty while rejecting
        the benefit the defendant was to receive. If the court does not approve the
        entire agreement, the defendant must be allowed to withdraw his plea of
        guilty.”




In re Pierce                                                                                      Page 4
Ortiz v. State, 885 S.W.2d 271, 273 (Tex. App.—Corpus Christi 1994), aff’d, 933 S.W.2d 102

(Tex. Crim. App. 1996) (emphasis added).

        “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.” State v. Villarreal, 418 S.W.3d 920, 925

(Tex. App.—Austin 2013, no pet.). “If the court accepts the plea bargain, the State cannot

withdraw its offer, and the parties are entitled to specific performance of the bargain.”

Id. “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.” Id. “The trial court has no

authority to participate in plea-bargain negotiations.” Id.

        In these proceedings, there is nothing in the mandamus record indicating that the

trial court approved any proposed plea agreement between relator and the prosecutor.

As such, any purported agreement between relator and the prosecutor was not binding.

See Ortiz, 933 S.W.2d at 104. Thus, relator is not entitled to specific performance of the

purported plea agreement. See Villarreal, 418 S.W.3d at 925.

        Furthermore, the case law mentioned above demonstrates that the trial court

exercises discretion in accepting or rejecting a purported plea agreement between the

State and a particular defendant. See Ortiz, 885 S.W.2d at 273; see also Perkins v. Court of

Appeals for Third Supreme Judicial Dist., 738 S.W.2d 276, 284 (Tex. Crim. App. 1987) (noting

that mandamus relief is available to compel performance of ministerial or mandatory

duties; however, “it is not be to used to force a particular result, or to change a result, the



In re Pierce                                                                            Page 5
determination of which involves an exercise of judicial or discretionary authority”).

Thus, it cannot be said that the trial court, in these proceedings, had a ministerial duty to

accept the original plea agreement. The decision to either approve or reject the proposed

agreement rests within the sole discretion of the trial court.           Pursuant to Perkins,

mandamus relief is not available to compel a particular result, such as the acceptance of

the original proposed plea agreement here, when the determination of which involves

the exercise of judicial or discretionary authority to accept or reject the purported plea

agreement. See 738 S.W.2d at 284.

        Moreover, because the original plea agreement had been withdrawn by the State

before the trial court approved of it, there is nothing in the law that requires: (1) the trial

court to order the State to reoffer the plea agreement; and (2) the trial court to accept the

re-offered plea agreement. To require this would be to inject the trial court in the plea-

bargain negotiations, which is prohibited. See Villarreal, 418 S.W.3d at 925. Accordingly,

we conclude that the relator has failed to identify and establish a true ministerial duty

that the trial court violated in this case. See Bowen, 343 S.W.3d at 810; see also State ex rel.

Young, 236 S.W.3d at 210.

        In addition to the foregoing, we note that the majority of relator’s mandamus

petition advances an ineffective-assistance-of-counsel claim against relator’s appointed

counsel in failing to timely accept the State’s original plea offer. This argument mirrors

those which were contained in relator’s motion to enforce the plea agreement. In any



In re Pierce                                                                             Page 6
event, an ineffective-assistance-of-counsel claim can be brought on direct appeal or by an

application for writ of habeas corpus. See, e.g., In re Bledsoe, No. 06-14-00215-CR, 2014

Tex. App. LEXIS 13507, at *2 (Tex. App.—Texarkana Dec. 18, 2014, no pet.) (orig.

proceeding) (mem. op.) (“Although habeas corpus is usually a preferable avenue for

raising claims of ineffective assistance of counsel, such claims may be raised on direct

appeal; therefore, mandamus is not appropriate.”). Therefore, relator has failed to

establish entitlement to mandamus relief in these proceedings for ineffective assistance

of counsel because he has an adequate remedy at law. See Bowen, 343 S.W.3d at 810; see

also State ex rel. Young, 236 S.W.3d at 210.

        Furthermore, in his prayer, relator seeks to be “returned to the position he

occupied on May 13, 2019, that being an accepted plea bargain for 15 years prison time

on the Aggravated Assault allegations, to be served concurrently with a 10-year prison

sentence on the Violation of a Protective Order charge.” As stated above, that plea offer

was withdrawn by the prosecutor. The effect of granting this relief to relator would

require us to mandamus the prosecutor to re-offer the plea offer desired by relator. We

lack jurisdiction to issue a writ of mandamus against a prosecutor to make such an offer.

See TEX. GOV’T CODE ANN. § 22.221(a)-(b) (West Supp. 2018) (providing that an appellate

court has the power to issue writs of mandamus to protect its jurisdiction or against

certain judges); see also In re Bailey, No. 10-13-00117-CR, 2013 Tex. App. LEXIS 5539, at *8

(Tex. App.—Waco May 2, 2013, orig. proceeding) (mem. op.) (noting that an appellate



In re Pierce                                                                          Page 7
court lacks jurisdiction to issue a writ of mandamus against a prosecutor). Moreover,

because the trial court cannot participate in plea-bargain negotiations, the trial court

cannot require the State to re-offer the plea either. See Villarreal, 418 S.W.3d at 925. As

such, based on the facts in these proceedings, there is nothing in the law that allows for

this Court or the trial court to effectuate the requested relief.

                                             IV.      CONCLUSION

        Based on the foregoing, we deny relator’s petitions for writ of mandamus. 1 See

Bowen, 343 S.W.3d at 810; see also State ex rel. Young, 236 S.W.3d at 210.




                                                          JOHN E. NEILL
                                                          Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Neill
(Chief Justice Gray dissenting with an opinion)
Petition denied
Opinion delivered and filed October 2, 2019
Publish
[OT06]




        1 We are also not persuaded by relator’s contention that a prior trial judge in the 82nd Judicial
District Court of Robertson County, Texas, would have accepted this purported plea agreement. As
mentioned earlier, trial judges are vested with discretion to accept or reject plea agreements. That a prior
trial judge would have accepted the purported plea agreement is supposition and irrelevant, especially
considering the 82nd Judicial District Court is now occupied by a different trial judge who has his own
discretion to accept or reject plea agreements.


In re Pierce                                                                                         Page 8
