IN THE
TENTH COURT OF APPEALS
No. 10-19-00288-CR
No. 10-19-00291-CR
IN RE ORLANDO DEONTE PIERCE
Original Proceeding
DISSENTING OPINION
The issue in these mandamus proceedings is whether the State is going to have to
pay for a trial and an appeal, and possibly a writ proceeding, before Pierce, the Relator,
is given the relief to which he is entitled today. I vote for today and avoid the unnecessary
cost. Because the Court makes him wait and the State pay, I respectfully dissent.
This is an unusual case; I will grant you that. It is the kind of case that if you do
not stop, breathe deeply, and think on it for a good while, you could misapprehend the
nuances of the issue and the remedy. It would be easy to even summarily deny the
petitions for writ of mandamus because when you first read them, the obvious answer in
the mandamus context is that this is something that can be fixed on direct appeal or in an
11.07 application for a writ of habeas corpus. But wait! Why should it wait? To
understand why it should not, and thus, why mandamus is not only a proper procedural
vehicle but is, in fact, the only proper vehicle, we must first understand the merits of the
legal issue and then look at the procedure.
Based on the allegations and record presented, Relator will have to suffer through
two criminal trials, or accept a less favorable plea agreement, before he obtains the relief
to which he appears entitled.1 The fundamental facts are that due to ineffective assistance
of counsel, Relator’s acceptance of a plea offer was not timely communicated to the
State. If it had been, the State concedes that it would have honored it. The evidence
certainly supports the fact that the trial court judge at the time would have accepted it
because the evidence is that the trial court judge had not rejected any, and delayed
accepting only one, plea bargain in 30 years on the bench as a district court judge.2 After
an evidentiary hearing, the new trial court judge ordered the plea offer reinstated and the
defendant accepted it. The State then withdrew it based on events that occurred long
after the plea agreement would have been fully “papered” and the Relator would have
been serving time pursuant to it. However, the new trial court judge allowed the plea
offer to be withdrawn and has refused to compel the State to “honor” the plea agreement.
The trial court and the State have approached this purely as an attempt to
specifically enforce a plea agreement. But this is no longer about the offer and acceptance
1
Pierce filed a motion for emergency relief to stay the trial scheduled for September 3, 2019, which was
granted pending the determination of these proceedings.
2
To suggest that after 30 years of not rejecting a single plea agreement this is the one and only one the trial
court judge would reject, strains credulity to the breaking point. This establishes the three elements of an
ineffective assistance of counsel claim. See Ex Parte Argent, 393 S.W.3d 781, 784 (Tex. Crim. App. 2013).
In re Pierce Page 2
of a plea agreement, as such. It is about the determination of, and more importantly the
remedy for, ineffective assistance of counsel. Id. See also Piland v. State, 453 S.W.3d 473,
475-476 (Tex. App.—Texarkana 2014, pet. ref’d). Clearly the trial court determined that
trial counsel was ineffective for having failed to timely communicate the acceptance of
the State’s plea offer and ordered it to be reoffered by the State, and the defendant
immediately accepted it. Efforts by the State to then withdraw it, while perfectly
acceptable in the routine practice of making, accepting, and withdrawing plea
agreements, are simply inapplicable to the situation when the issue is ineffective
assistance of counsel. The discretion the current trial court has to accept or reject a plea
agreement is irrelevant. The remedy for ineffective assistance of counsel, whether done
now or two years from now will be the same—enforcement of a plea agreement that was
wrongfully taken from the defendant due to the ineffective assistance of counsel. The
remedy for ineffective assistance of counsel in this situation leaves no latitude. To fully
explore the issues, and compel the relief to which the Relator clearly seems to be entitled,
we should request a response as is required before relief by mandamus can be
granted. TEX. R. APP. P. 52.4. Because the Court denies relief rather than requesting a
response, I respectfully dissent.
TOM GRAY
Chief Justice
Dissenting opinion issued and filed October 2, 2019
In re Pierce Page 3