Deleon, Ex Parte Jesus

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. AP-76,763 & AP-76,764

Ex parte JESUS DE LEON, Applicant

ON APPLICATIONS FOR HABEAS CORPUS CAUSE NOS. 06-CR-0405-G & 06-CR-2746-G IN THE 404 TH DISTRICT COURT FROM CAMERON COUNTY

K ELLER, P.J., filed a concurring opinion in which J OHNSON and C OCHRAN, JJ., joined.

The plea agreement provided that applicant waived his right to appeal, applicant’s attorney

provided an affidavit saying that his understanding was that no appeal would be forthcoming, and

the habeas judge found that applicant breached the plea agreement by appealing. I do not think that

the pre-printed nature of the waiver of appeal makes it ambiguous, nor do I think that the trial judge

can retroactively override a waiver of appeal after he has accepted the plea agreement. The habeas

judge’s finding that applicant breached the plea agreement first appears to me to be supported by the

record.

But it does not matter. The plea agreement contains no “partial remedies” clause. That is,

there is no provision that says that, if applicant breaches the agreement by appealing, the State can DE LEON CONCURRENCE — 2

prosecute applicant’s brother while the remainder of the plea agreement remains in force. Absent

a partial remedies clause, the State has three choices when a defendant breaches the plea agreement:

(1) request specific performance, if that is possible,1 (2) follow its end of the agreement, relinquish

any rights lost as a result of the defendant’s breach, and have the remaining portions of the agreement

remain in effect,2 or (3) have the entire agreement set aside.3 Once the State prosecuted applicant’s

brother, it made options (1) and (2) impossible. Regardless of who breached the plea agreement

first, once the State acted contrary to the plea agreement, it was no longer entitled to specific

performance of any part of the agreement, and applicant was entitled to have the agreement set aside

in its entirety.

With these comments, I concur in the Court’s judgment.

Filed: June 5, 2013 Publish

1 State v. Moore, 240 S.W.3d 248, 252 (Tex. Crim. App. 2007). 2 Ex parte Ervin, 991 S.W.2d 804, 817 (Tex. Crim. App. 1999) (State can waive an illegal portion of a judgment and maintain the remainder of the plea agreement). 3 Windom v. State, 968 S.W.2d 360, 362 (Tex. Crim. App. 1998).