In re State ex rel. Saenz

1

IN RE THE STATE OF TEXAS EX REL. LUIS V. SAENZ

No. 13-21-00437-CR

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

January 10, 2022

Do not publish. Tex.R.App.P. 47.2 (b).

On Petition for Writ of Mandamus.

Before Hinojosa, Tijerina, and Silva, Justices

MEMORANDUM OPINION

LETICIA HINOJOSA, Justice. ^[1]

Relator the State of Texas ex rel. Luis V. Saenz, the County and District Attorney of Cameron County, Texas, filed a petition for writ of mandamus asserting that the trial court erred by rejecting a plea agreement and sentencing the defendant to a term inconsistent with the plea agreement over relator's objection and despite relator's demand for a jury trial.^[2] We conditionally grant the petition for writ of mandamus in part and deny it in part as stated herein.

I. Background

Brownsville police officers arrested real party in interest Jonathan G. Ortegon after Ortegon was found sleeping in his parked car adjacent to the gas pumps at a Stripes convenience store. The police searched Ortegon and his vehicle and found, among other items, one 45.4-gram ball of cocaine, numerous single baggies of cocaine weighing a total of 28.7 grams, one pill of MDMA, ^[3] multi-tool pocketknives, a brush, and a scale. In two counts, relator charged Ortegon with the first-degree felony offense of the manufacture or delivery of a controlled substance (count one) and the state jail felony offense of possession of a controlled substance (count two). See TEX. PENAL CODE ANN. §§ 481.112(d), 481.112(a).

On October 26, 2021, Ortegon completed a "Written Waiver and Consent to Stipulation of Testimony, Waiver of Jury, and Plea of Guilty." This document references both count one and count two of the indictment and states that Ortegon "affirm[s] to the Court that there has been no plea agreement in this case except as follows: In exchange for a plea of guilty, the state recommends 8 years TDC probated for 8 years on count I. State to dismiss count II." This pleading was signed by Ortegon and a representative of the State, and the trial court "accept[ed] the Defendant's plea of Guilty." Thus, relator and Ortegon entered into a plea agreement wherein relator would dismiss count two of the indictment if Ortegon pleaded guilty to count one, and Ortegon would be sentenced to eight years imprisonment in the Texas Department of Criminal Justice-Institutional Division, with the sentence to be suspended and Ortegon to be placed under community supervision for eight years.

On November 30, 2021, the trial court held a hearing on sentencing. At the hearing, the trial court opened the proceedings by stating that: "I see that Mr. Ortegon has no priors, really, except for a misdemeanor. I am inclined to place him on deferred adjudication, so I am not following the plea bargain recommendation. Is there a problem with that?" Neither Ortegon nor his counsel objected. The court further noted that Ortegon "has to realize that if I place him on deferred adjudication[, ] he's looking at the full range of punishment, which is 5 to 99 or life." At this point, the State interjected, and the following colloquy occurred:

Prosecutor: This case dealt with a large amount of drugs, Your Honor, over 40 grams.

Court: I understand. I understand. But that's what I am saying. I am inclined to defer the finding of guilt, but he is now going to be facing 5 to 99 years or life.

Prosecutor: That's understood, Your Honor, but if that's the case, the agreement that was reached with counsel that was the State's understanding-if the Court does not want to accept that then the State would retract its offer.

Court: Okay. Well, I'm not going to follow-

Prosecutor: It's a first[-]degree felony, Your Honor, and it is a large amount of narcotics.

Court: I completely understand. I read the presentence report, I am well aware of it. But because he has no priors, I am going to- I am not going to adjudicate him guilty. I am going to place him on deferred adjudication, but I will do it for ten years.

Prosecutor: The State would be in objection to that, Your Honor, and for that reason, we'd reserve our right to trial-

Court: Okay. Well, I understand that, but-

Prosecutor: -and also to provide an opportunity to staff this case with Mr. Saenz. But I'm under specific instruction for first degree felonies that this is not a deferred case, and if Your Honor so chooses to offer deferred, then in that case the State reserves its right to trial.^[4]

Court: Well, Mr. Ortegon then has every right to enter a cold plea to this Court.

Prosecutor: Yes, Your Honor, and the State has every right to exercise its right to trial if the plea agreement is not honored by the Court.

Court: . . . I am not going to follow the recommendation of the State. I am going to defer the finding of guilt. I'm going to place Mr. Ortegon-

Prosecutor: Your Honor, the State is reserving its right to trial.

Court: I am going to place-he already [pleaded] guilty.

Prosecutor: If the plea agreement is not followed, Your Honor, the State has the same right as the defendant to exercise its right to trial.

Court: No.

Prosecutor: The plea agreement reached between both of the parties was right before the Court. If the Court doesn't follow it then the State has its right to withdraw its-

Court: Okay. Then appeal me. I am going to defer the finding of guilt on Mr. Ortegon. I am going to place him on ten years deferred adjudication . . . .

The trial court thereafter verbally assessed Ortegon a $500 fine payable within one year, ordered Ortegon to pay court costs and a probationary fee, ordered Ortegon to submit to random testing for alcohol and drugs, referred Ortegon for alcohol and drug evaluation, ordered Ortegon to attend any counseling or treatment deemed necessary, and made further orders relative to the case. At this point, the State further interjected:

Prosecutor: . . . And, then, for the record, just the State's objection is that the plea agreement was not followed, therefore, the State's reserving its right to trial.

So[, ] this was not a cold plea, Your Honor. It was a plea that was taken, a PSI was ordered, and the Court did not choose to follow the plea agreement, as it has discretion to. . . .

Court: I think it is the exclusive right of the defendant to enter a plea of guilty or not guilty, and if Mr. Ortegon so chooses to enter a plea of guilty, there doesn't have to be a recommendation from the State[, ] and he can leave the sentencing up to the Court.

Prosecutor: But that was not the case here, Your Honor. The case was that an agreement was reached by both parties[, ] so this is different from a cold plea.

Court: So[, ] do you want Mr. Ortegon-

Prosecutor: Had we gone to-

Court: Listen to me. Do you want Mr. Ortegon to withdraw his plea of guilty and enter a cold plea?

Prosecutor: Your Honor, this has nothing to do on the part of the defendant. You're right to say that the defendant has a full right to enter his plea of guilt, but what is shared with the State is the State has the full right to reserve its right to trial if the Court chooses not to go and agree with the agreement made amongst the parties in the plea agreement.

So[, ] this is different from a cold plea, Your Honor, because had I self-consciously gone into the cold plea with counsel, then that's different. I trust that whatever decision is made by the Court then we're going to go forward with it. That's what's done in a cold plea. But this situation is different because this was a plea agreement reached by the parties.

So had this been a cold plea we'd be in a different position[, ] and you'd be allowed to do deferred and I couldn't back out of it. But that was not the case here. The agreement was reached with both parties. We go forth to the Court and you choose to go with the plea agreement or not.

Court: Well, I'm choosing not to and let me tell you why. I've read the presentence report and that's what aids this Court in making its decision.

Mr. Ortegon is a young man, he has no prior felonies, and I am extending an opportunity to Mr. Ortegon to be placed on deferred and not-and not ruin his life because he's so young. I am taking all of that into consideration[, ] and that's why I deferred the finding of guilt and placed him on deferred adjudication for ten years.

As a matter of fact, the defendant has every right to say, no, Judge, you're not following the plea agreement and that's why I admonished him-

Prosecutor: And the State respects that- Court: -that if I do not accept the plea bargain, it is his choice to withdraw his plea of guilty and enter a plea of not guilty and go to trial. That is his choice.

Prosecutor: And it's also the same rights reserved to the State, Your Honor, in terms of plea agreements.

Court: Okay. So[, ] this is what I'll do.

Prosecutor: And I do respect the Court's discretion and what you're having to say about this matter, however, we're talking about two different things.

This was not a cold plea. Had it been a cold plea then I would not have the opportunity to retract-

Court: [Ortegon's counsel], does your client want to withdraw his plea of guilty in this case?

Defense: No, Your Honor. We do not want to withdraw the plea and we do accept the Court's changing of the agreement. We did have an agreement for probation because we asked for deferred and it was denied because it was a first degree, but in my conversation with my client, he asked me to see if he was going to get a record and I had to say you're going to have to get a record . . . .

The trial court thereafter informed the prosecutor that the court found it "somewhat hypocritical" of the State that in a previous case, the State had recommended deferred community supervision in a case involving a guilty plea on a first-degree felony....