Costilow v. State

DAVID GAULTNEY, Justice,

dissenting.

I respectfully dissent. This Court has jurisdiction over the appeals. Costilow’s request for a delay in sentencing did not “invite error,” and she is not estopped from raising the issue she raises in this appeal.

Under Moore v. State, “[a] trial court may conditionally agree to follow a plea-bargain agreement, but only by delaying the unconditional acceptance or rejection of the agreement until after the condition of acceptance has been fulfilled.” Moore v. State, 295 S.W.3d 329, 332 (Tex.Crim.App.2009). That is what happened here. Subject to a condition, the trial court agreed to follow the plea bargain agreement between the State and Costilow. That condition was not part of Costilow’s plea agreement with the State. Costilow requested a delay in sentencing from the trial judge so that she could get her affairs in order. The prosecutor did not offer the agreement, but only indicated she did not object to the arrangement between the *541trial court and Costilow. “Only the state may offer or withdraw a plea bargain.” Moore, 295 S.W.3d at 333.

There was no new or modified plea agreement between the State and Costi-low. Instead, the trial court accepted the plea agreement in each case and conditioned (at Costilow’s request) the acceptance upon Costilow’s not “get[ting] another case or get[ting] in trouble” during the thirty-day delay in sentencing. During the sentencing hearing, defense counsel characterized the condition as “the agreement [Costilow] had with the Court not to get in trouble[,]” rather than as an agreement with the State. Because Costilow did not fulfill the condition, the trial court stated at the sentencing hearing, “[T]he plea bargains are rejected on that basis; and I find her guilty in [numbers] 1704, 1703, and 00937.” Having rejected the plea agreement between Costilow and the State, the trial court erred in refusing to permit Costilow to withdraw her guilty pleas. The judgment should be reversed and the case remanded to the trial court.