COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-06-125-CR
JONATHAN JAMES MOORE APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 97TH DISTRICT COURT OF MONTAGUE COUNTY
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OPINION
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I. Introduction
May a trial court impose a sentence in excess of a plea-bargained
punishment without allowing the defendant to withdraw his plea of guilty when
the defendant fails to return to court for sentencing after pleading guilty?
Because the plea bargain negotiated between Appellant and the State in this
case did not include an agreement to convert the plea to an open plea if
Appellant failed to appear for sentencing, we answer the question “no” and
reverse and remand.
This case is strikingly similar to State v. Moore, in which the Court of
Criminal Appeals reversed the judgment of this court and held that the trial
court did not err by imposing a sentence in excess of a plea-bargained
punishm ent w hen the defend a n t— A p p e lla n t’s b ro th e r Joshua
Moore—committed another crime between the day he pleaded guilty and the
day he appeared for sentencing. 240 S.W.3d 248, 249 (Tex. Crim. App.
2007). However, a crucial difference between the two cases compels a
different outcome in this case: In State v. Moore, the defendant and the State
explicitly agreed that the trial court could set aside the bargained-for
punishment; but there was no such agreement in this case. 1 Id.
II. Factual and Procedural Background
Joshua Moore and Appellant Jonathan Moore are brothers. Id. The State
indicted both of them for the same crime—manufacturing methamphetamine,
four grams or more, but less than 200 grams. Id. They both negotiated plea
1
… Rather than submitting a brief countering Appellant’s arguments, the
State “in the interest of economy and clarity” requested this court to consider
its original arguments in Joshua Moore’s case as its arguments for Appellant’s
case. The State failed to address the crucial difference between these two
cases.
2
agreements with the State; Joshua agreed to plead guilty in exchange for a
recommended sentence of twenty-five years’ confinement, and Appellant
agreed to plead guilty in exchange for twenty-eight years. Id. They were both
given time between the adjudication of guilt and sentencing so that they might
tend to personal business before being incarcerated. Id. Joshua returned for
sentencing on time but committed a crime during his reprieve. Id. Appellant
failed to appear for sentencing. Id. Because of these transgressions, the trial
court sentenced them both to forty years’ incarceration. Id.
A. Joshua Moore’s Case
Joshua entered his guilty plea on March 14, 2006. Id. His plea was
predicated on a multi-faceted plea agreement with the State. Id. The
agreement required that Joshua plead guilty to the charge. Id. The State
agreed to a six-week postponement of the sentencing so that Joshua could
prepare for his term of incarceration. Id. Joshua promised to appear for his
sentencing and to refrain from committing any criminal offense during his
six-week reprieve. Id. On condition that Joshua abide by these terms, the
State offered to recommend a punishment of twenty-five years’ incarceration.
Id. Should Joshua fail to abide by these terms, however, the agreement
expressly provided that the State would not recommend a punishment; it would
become an open plea for the trial court to determine the sentence based on the
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full punishment range, up to life in prison. Id. The record from Joshua’s plea
hearing contains the following relevant colloquy:
[The Prosecutor]: [I]f [Joshua] is given that time and he does
not return on the date ordered to appear back here for sentencing
by the Court, then his plea is considered an open plea and the
Court will then have the full punishment range available, up to life
in prison.
THE COURT: And that would also -- does that also include
if the defendant commits another --
[The Prosecutor]: That’s correct.
THE COURT: - - a criminal offense during that period of time?
[The Prosecutor]: That’s correct.
THE COURT: The State then would not make a
recommendation, but it would be an open plea?
[The Prosecutor]: It would be an open plea, yes.
THE COURT: Is that you-all’s understanding of the plea
bargain agreement?
[Defense Counsel]: Yes.
THE COURT: And, Mr. Moore, did you understand that to be
the agreement?
[Joshua]: Yes.
THE COURT: Do you have any questions about that?
[Joshua]: No.
....
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THE COURT: The Court advises the defendant that the Court
will approve the plea bargain agreement as stated on the record
. . . Do you still wish to enter a plea of guilty?
[Joshua]: Yes.
THE COURT: All right. The Court accepts your plea of guilty.
Id. [Emphasis added].
As can be seen from the transcript of Joshua’s plea hearing, after
discussing the terms of the plea agreement in open court, the trial court asked
Joshua whether he still wished to enter a plea of guilty, to which Joshua
responded in the affirmative. Id. The judge accepted Joshua’s guilty plea, as
well as the terms of the plea agreement. Id.
Joshua’s sentencing hearing commenced on April 24, 2006. At that
time, the State presented a presentence investigation report alleging that
Joshua had committed an assault, in violation of the plea agreement. Id. In
light of this accusation, the trial court postponed the sentencing hearing until
May 8, 2006. Id.
At the May 8 hearing, the State presented evidence that Joshua had, in
fact, committed an assault during his six-week reprieve. Id. Accordingly, the
State informed the trial court that, pursuant to the plea agreement, the State
would refrain from making any sentencing recommendation. Id. Despite
Joshua’s request that the trial court assess the twenty-five-year sentence that
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the State had originally agreed to recommend, the trial court sentenced him to
forty years’ incarceration. Id.
In an unpublished opinion, this court reversed the trial court’s judgment,
holding that the trial court erred by not allowing Joshua the opportunity to
withdraw his guilty plea. Moore v. State, No. 2-06-168-CR, 2007 WL 438897
(Tex. App.—Fort Worth, Feb. 7, 2007) (mem. op., not designated for
publication), rev’d, 240 S.W.3d at 255. W e reasoned that the plea bargain
between the State and Joshua contained two conditions precedent and because
the State withdrew its promise to recommend twenty-five years’ incarceration,
Joshua should have had the right to withdraw his guilty plea. Moore, 2007 WL
438897 at *1.
The Court of Criminal Appeals reversed this court’s judgment. Moore,
240 S.W.3d at 255. The Court of Criminal Appeals, concerning Joshua’s plea
agreement, specifically explained:
[T]he record clearly shows that the six-week reprieve and the
covenants to show up for the sentencing hearing in six weeks and
to refrain from committing a criminal offense were all part of the
negotiation process and the finalized plea agreement. Moreover, the
consequence of not abiding by the two covenants was also
pre-negotiated and expressly incorporated into the plea agreement.
It was not the trial judge who imposed these requirements on
[Joshua]; [Joshua] and the State mutually agreed to these terms.
Id. at 253 (emphasis added).
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However, and significant to Appellant’s case, the Court of Criminal
Appeals stated in its opinion concerning Joshua’s case that “[i]f the facts of
this case were similar to those in Papillion v. State, we might agree with the
court of appeals’s assessment.” Moore, 240 S.W.3d at 253 (citing Papillion v.
State, 908 S.W.2d 621, 624 (Tex. App.—Beaumont 1995, no pet.)). In
Papillion, the trial court, after accepting the plea agreement and guilty plea,
admonished the defendant that if he failed to have his presentence investigation
completed or to show up at the sentencing hearing, the trial court would not
be bound by the plea agreement. Papillion, 908 S.W.2d at 624. When the
defendant failed to adhere to one of the conditions, the judge assessed a jail
sentence longer than that agreed to in the plea agreement. Id. The Beaumont
court held that the trial court improperly placed two conditions on the plea
agreement that were “not part of any negotiations between the State or [the
appellant],” reversed the conviction, and remanded for a new trial. Id.
B. Appellant’s Case
Appellant entered his guilty plea on January 4, 2006. The trial court held
a hearing during which Appellant waived various rights and was admonished by
the court. But unlike his brother’s plea agreement, Appellant’s agreement
contained no provision for the State to withdraw its punishment
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recommendation or for the court to exceed the recommendation. The record
from Appellant’s plea hearing contains this relevant colloquy:
THE COURT: And is there a plea bargain agreement in the case?
[The Prosecutor]: Yes, sir.
[Appellant’s attorney]: Yes, sir, Your Honor.
THE COURT: Do y’all want to state for the record what the plea
bargain agreement is?
[The Prosecutor]: The plea agreement is for 28 years in prison,
Your Honor, on the main case. I believe there’s also a revocation pending
in another case where we will agree to a one-year revocation on the state
jail -- state jail sentence to run concurrently with this case.
....
THE COURT: And from discussions prior to the hearing, sentencing
is going to be on --
[The Prosecutor]: Well, let me say, Judge, that I don’t make -- I did
not make that part of any plea agreement. I told [Appellant’s attorney]
that he could speak to you about that and if you agreed to do that, that
would be up to the Court, but that I would not make that any part of any
plea agreement.
[Appellant’s attorney]: That was my understanding.
THE COURT: And so if the Court allows [Appellant] to reappear,
actually, on February 15th -- which is a Wednesday, a regular court day
-- for sentencing and he fails to do so, there is no agreement with regard
to that then?
[The Prosecutor]: Well, there is no agreement with regard to a plea
agreement other than it’s -- I think [Appellant’s attorney] is aware of the
Court’s policy that if you allow that sentencing to occur later, that the
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defendant must agree that it is an open plea if he does fail to appear at
that time.
[Appellant’s attorney]: That is my understanding, and that is what
has been discussed with my client, Your Honor.
THE COURT: [Appellant], do you understand what that means?
[Appellant]: Yes, sir.
THE COURT: Okay. If you -- if, after we proceed today and there’s
a finding of guilt, and then I order you to reappear back on the 15th of
February at 9:00 a.m., and you don’t do that, what do you understand
could be the greatest sentence you could receive then?
[Appellant]: Life or 99.
THE COURT: What?
[Appellant]: Life.
[Appellant’s attorney]: Or 99.
THE COURT: Okay. Do you understand what an open plea is?
[Appellant]: Yes, sir.
THE COURT: That if you fail to appear, that the Court could then
assess punishment -- could disregard the State’s recommendation
because, as I understand it, the State would still recommend 28 years
under that, but the Court could assess punishment anywhere within the
range of punishment, as much as life or 99 years and up to a $10,000
fine, all the way down -- actually, the Court could assess punishment all
the way down to a first degree felony, all the way down to five years.
The range of punishment for this offense is imprisonment in the
Institutional Division for any term of not more than 99 years or less than
five years, and, in addition, you could be assessed a fine not to exceed
$10,000. So the Court could set it anywhere in that range of
punishment. Any question about that?
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[Appellant]: No, sir.
THE COURT: And when would you be ordered to appear back
here?
[Appellant]: The 15th of February.
THE COURT: At what time?
[Appellant]: Nine o’clock.
THE COURT: Okay. Morning or evening?
[Appellant]: Morning. [Emphasis added.]
The trial court then continued to admonish Appellant asking him if he
understood the sentencing range for the crime he was pleading guilty to,
whether he had any objections, and whether he was pleading freely and
voluntarily. Appellant answered that he understood and agreed with each of
these questions. The court also asked Appellant’s attorney if he believed his
client was competent to enter the plea; Appellant’s attorney said he did. The
hearing concluded with this exchange:
THE COURT: The Court finds the [Appellant] competent. The
Court will approve the plea bargain agreement as stated. The Court will
also allow [Appellant] to report back for sentencing on February 15th at
9:00 a.m.
[Appellant’s attorney]: Thank you, Your Honor.
THE COURT: The Court -- [Appellant], do you still wish to enter a
plea of guilty?
[Appellant]: Yes, sir.
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THE COURT: All right. The Court accepts your plea of guilty. The
Court finds you guilty of the felony offense of manufacture of a
controlled substance as charged in the indictment.
Appellant failed to appear for sentencing on February 15, 2006. Police
arrested Appellant the next day, and the trial court held a sentencing hearing
on February 27, 2006. Appellant offered an explanation of his failure to appear
on the original sentencing date. Regarding Appellant’s plea, the prosecutor
argued that “the State considers this at this point to be an open plea.” The trial
court explained to Appellant that he could have had the twenty-eight year
sentence if he had “taken [his] plea and finalized it [at the plea hearing]. You
did not want to do so. You’ve had additional time to do whatever you wanted
to do whenever you wanted to do during that period of time.” The court
assessed punishment at forty years’ incarceration.
III. Discussion
In two points, Appellant argues that the trial court erred by treating his
plea as an open plea without giving him the opportunity to withdraw his plea
of guilty and failed to substantially comply with Texas Code of Criminal
Procedure article 26.13. The State counters with the argument it presented to
this court in the case of Joshua Moore, namely, that Appellant was sentenced
according to the terms of a plea bargain agreement that was accepted by the
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trial court; therefore, Appellant did not have the right to withdraw his guilty
plea. We agree with Appellant.
A. Plea Agreements
Plea agreements continue to be a vital part of our criminal-justice system.
Moore, 240 S.W.3d at 250; see Brady v. United States, 397 U.S. 742, 752
n.10, 90 S. Ct. 1463, 1471 n.10 (1970). Like many aspects of criminal law,
however, plea agreements have become more complex in recent years. Moore,
240 S.W.3d at 250. Plea agreements may contain a variety of stipulations and
assurances, depending on the desires of the State and the defendant. Id. Plea
agreements are generally contractual arrangements between the State and
defendant. Id. As the Court of Criminal Appeals stated in Ex parte Williams,
”When a defendant agrees to the terms of a plea bargain agreement he is
deemed to have entered into the agreement knowingly and voluntarily unless
he shows otherwise. In effect, he becomes a party to a ‘contract.’” 637
S.W.2d 943, 948 (Tex. Crim. App.1982) (citing Jones v. Estelle, 584 F.2d
687, 690 (5th Cir.1978)). Consistent with general contract principles, then,
both the State and the defendant should be given great latitude in crafting plea
agreements. Moore, 240 S.W.3d at 250.
Once a plea agreement is reached between the State and the defendant,
the trial court must approve the terms of the agreement. Id. (citing Dorsey v.
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State, 55 S.W.3d 227, 229 (Tex. App.—Corpus Christi 2001, no pet.). Thus,
the contractual nature of a plea agreement does not become binding until the
trial court accepts the proffered agreement. Moore, 240 S.W.3d at 251.
When a plea agreement is finalized and the trial court binds itself to the
terms, both the defendant and the prosecutor are entitled to the benefit of the
agreement. Id. At the same time, both the defendant and the prosecutor are
also bound to uphold their ends of the bargain. Id. As the Court of Criminal
Appeals also stated in Ex parte Williams, once the trial court declares that it will
accept a plea agreement, “the State is bound to carry out its side of the
bargain. Likewise, the defendant is bound to carry out his side of the bargain.”
637 S.W.2d at 947 (citation omitted). Ordinarily, when one side fails to abide
by the plea agreement, two potential remedies exist. Moore, 240 S.W.3d at
252. First, pertaining mainly to the defense, a plea may be withdrawn. Id.
Second, the non-breaching party may demand specific performance of the
remainder of the plea agreement. Id. (citing Perkins v. Court of Appeals for the
Third Supreme Judicial Dist. of Tex., 738 S.W.2d 276, 283–284 (Tex. Crim.
App.1987)).
A plea bargain is an agreement made between the prosecution and the
defendant, and the trial court’s sole role is to approve or reject the agreement.
See Ex parte Williams, 637 S.W.2d at 947. It is not the trial court’s function
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to modify the terms of a plea agreement. Papillion, 908 S.W.2d at 624. A trial
court exceeds its authority under article 26.13 of the Texas Code of Criminal
Procedure when it inserts additional, non-negotiated terms into the negotiated
plea bargain between the State and a defendant and then makes acceptance or
rejection of the plea bargain contingent on whether or not a defendant complies
with the additional, non-negotiated terms. See id.; see also T EX. C ODE C RIM.
P ROC. A NN. art. 26.13 (Vernon Supp. 2007).
B. Analysis
In State v. Moore, Joshua and the State specifically agreed that the State
would withdraw its punishment recommendation and the trial court would be
free to impose any punishment within the statutory range if Joshua committed
another crime before the sentencing hearing. 240 S.W.3d at 249. Thus, that
agreement was part of the plea agreement negotiated between Joshua and the
State and approved by the trial court, and the trial court did not err by enforcing
the agreement. Id.
By contrast, in this case, Appellant and the State did not agree that
Appellant’s failure to appear for sentencing would convert his plea to an open
plea and free the trial court to impose any sentence within the statutory range.
As the prosecutor said at the plea hearing, “I did not make that part of the plea
agreement. . . . [T]hat would be up to the Court, but . . . I would not make that
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part of any plea agreement.” The trial court specifically asked whether there
was an agreement as to what would happen if Appellant failed to appear for
sentencing, and the prosecutor answered, “[t]here is no agreement,” and
Appellant’s attorney affirmed, “That is my understanding.” The trial court
acknowledged that conversion of Appellant’s plea to an open plea was not part
of the agreement between Appellant and the State with the words, “[A]s I
understand it, the State would still recommend 28 years” if Appellant failed to
appear for sentencing.
Thus, opening the range of punishment to its statutory maximum upon
Appellant’s failure to appear for sentencing was not part of the agreement
negotiated between Appellant and the State. Instead, it was an additional, non-
negotiated term imposed on the plea bargain by the trial court, and the trial
court made its acceptance or rejection of the plea bargain contingent upon
whether Appellant complied with the additional, non-negotiated term by timely
appearing for sentencing. This the trial court cannot do. T EX. C ODE C RIM. P ROC.
A NN. art. 26.13; see Papillion, 908 S.W.2d at 624.
The procedural facts of this case are remarkably similar to those in
Papillion. In Papillion, ostensibly after accepting the plea agreement between
the State and the defendant, the trial court interjected two terms into the
agreement that had not been negotiated between the State and the defendant:
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that the defendant complete a presentence investigation and return for
sentencing at a later date. 908 S.W.2d at 622. After announcing these two
terms the trial court asked the defendant if he was “still satisfied.” Id. The
defendant answered in the affirmative. Id. The trial court then explained to the
defendant, “You can back out of all of this if you wanted to, but you still want
to go forward?” Id. The defendant replied, “Yes, sir.” Id. Like in Papillion, in
this case, after the State had announced to the trial court the negotiated plea
agreement that the State would recommend a twenty-eight year sentence, the
trial court injected the term that Appellant could have a reprieve between
adjudication and sentencing. Id. After explaining the open plea term to
Appellant, the trial court inquired if Appellant understood and still wanted to
plead guilty. Appellant answered in the affirmative.
In Moore, the Court of Criminal Appeals acknowledged that the outcome
of that appeal might have been different if the facts had been more like those
in Papillion. Moore, 240 S.W.3d at 253. The case before us is more like
Papillion, and the crucial difference between Moore and this case compels a
different outcome. Because Appellant and the State did not agree as a
negotiated term of the plea bargain that the trial court could disregard the
State’s punishment recommendation if Appellant failed to appear for
sentencing, the trial court erred by so doing without first giving Appellant the
opportunity to withdraw his plea. See Papillion, 908 S.W.2d at 624.
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We hold that the trial court erroneously injected itself into the plea
negotiations between the State and Appellant and exceeded its authority under
article 26.13 and that Appellant should have been afforded the opportunity to
withdraw his plea of guilty. We therefore sustain both of Appellant’s points.
IV. Conclusion
Having sustained both of Appellant’s points, we reverse the trial court’s
judgment and remand the case for further proceedings.
ANNE GARDNER
JUSTICE
PANEL A: CAYCE, C.J.; DAUPHINOT and GARDNER, JJ.
CAYCE, C.J. concurs without opinion.
PUBLISH
DELIVERED: July 10, 2008
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Jonathan James Moore v. State
Combined Opinion