Ex Parte Fred Alexander Avant

• Court: Court of Appeals of Texas
• Decided: August 6, 2009
• Docket: 14-08-01117-CR
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed August 6, 2009.

In The

Fourteenth Court of Appeals

____________

NO. 14-08-01117-CR

EX PARTE FRED ALEXANDER AVANT

On Appeal from the 208th District Court

Harris County, Texas

Trial Court Cause No. 1176768

M E M O R A N D U M   O P I N I O N

The State appeals from the trial court=s order, signed November 17, 2008, granting Fred Alex Avant=s application for pretrial writ of habeas corpus and dismissing the charges against him of aggravated assault.  We affirm.

Fred Alexander Avant claimed he had just parked his car at his apartment complex and was walking to his apartment when Robert Paschal drove past him and almost hit him.  The two men had a verbal confrontation.  Avant claimed Paschal threatened him with bodily harm.  The two men then went to their respective apartments.  A few minutes later, Avant decided he should obtain Paschal=s license plate number and he went back to the parking lot to obtain this number.  Paschal also returned to the parking lot, where he found Avant near his vehicle.  Avant claimed he had brought a handgun with him because of Paschal=s threat and because any blows to his face or neck could cause serious injury or death, given the stents placed in his neck after a recent stroke.  Avant claimed he saw Paschal running toward him aggressively and Avant took out his gun and fired at Paschal.  The shot grazed Paschal=s thigh.  Avant ran, but claimed Paschal began to chase him.  Avant called the police.   The police arrested Avant and charged him with unlawfully carrying a weapon.  In accordance with a plea bargain, Avant was convicted of the offense of disorderly conduct with punishment of a $100 fine. 

The State subsequently obtained an indictment against Avant for the offense of aggravated assault with a deadly weapon.  Avant filed an application for writ of habeas corpus challenging the charge of aggravated assault.  After a hearing, the trial court granted relief and dismissed the charges.

An appellate court reviews a trial court=s decision to grant or deny an application for writ of habeas corpus under an abuse-of-discretion standard.  Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006).  In reviewing the trial court=s ruling, we view the evidence in the light most favorable to the trial court=s ruling.  Ex parte Peterson, 117 S.W.3d 804, 819 (Tex. Crim. App. 2003), overruled in part on other grounds by Ex parte Lewis, 219 S.W.3d 335, 371 (Tex. Crim. App. 2007).  The trial judge, as fact finder at the writ hearing, is the exclusive judge of witness credibility.  Ex parte Amezquita, 223 S.W.3d 363, 367 (Tex. Crim. App. 2006).  However, if the resolution of ultimate questions turns on application of legal standards without any credibility issue, we review the determination de novo.  Peterson, 117 S.W.3d at 819.

The State raises three grounds for finding the trial court erred in granting habeas relief:  (1) disorderly conduct and aggravated assault are two separate offenses and disorderly conduct is not a lesser-included offense of aggravated assault; (2) there was no promise as part of the plea agreement that the State would forego any future charges; and (3) the Aguilty@ plea to disorderly conduct is void.  We first address whether the State agreed to forego any future charges.  Avant claims he understood his Aguilty@ plea to disorderly conduct would be the only criminal charges relating to the conduct.  According to the affidavit of Avant=s trial counsel, Luis Midence, he was shown the prosecutor=s file which contained a note that aggravated assault charges were declined.  Midence claimed he discussed this note with Courtney St. Julien, the prosecutor, who told him that aggravated assault charges were declined by intake.  Midence also stated that St. Julien told him she believed Avant was defending himself and that Ashe didn=t think that additional charges would be filed.@  At the writ hearing, St. Julien, testified that the note was in her handwriting, but she claimed she did not recall telling Midence that the district attorney=s office would not pursue aggravated assault charges.  Although the State did not expressly state that , in connection with the plea agreement, it would forego any additional charges, it would have been reasonable for Avant and his attorney to believe the State was not going to charge Avant with aggravated assault.  The State showed Avant=s counsel the notation that aggravated assault charges were declined and the prosecutor mentioned the possible self-defense issues that caused the State to decline aggravated assault charges. 

Plea bargaining consists of the prosecutor=s concessions regarding punishment, lesser charges or reduction in counts in exchange for a defendant=s plea of guilty or nolo contendere.  Ex parte Williams, 637 S.W.2d 943, 947 (Tex. Crim. App. 1982).  When a defendant agrees to a plea bargain agreement, he becomes a party to a contract that becomes operative when the court announces it will be bound by the plea agreement.  Id.  Once the court makes this announcement, the State becomes bound by its side of the bargain.  Id.  When a plea bargain is not kept, the proper relief is either specific enforcement of the plea agreement or withdrawal of the plea.  Id. 

The trial court could have determined that the State misled Avant during plea negotiations by representing, either expressly or impliedly, that it would not pursue the charge of aggravated assault.  If so, the trial court could have granted habeas relief as a type of specific performance of the plea agreement.  See Wright v. State, 158 S.W.3d 590 (Tex. App.BSan Antonio 2005, pet. ref=d)(citing Perkins v. Court of Appeals, 738 S.W.2d 276, 283-84 (Tex. Crim. App. 1987))(once trial court accepts plea bargain agreement, defendant may insist on benefit of his agreement and is entitled to enforce agreement by specific performance).  Although the State argues that there was no express agreement the State would forego future charges, this was based on the testimony of the former prosecutor, St. Julien.  As the fact finder, the trial judge was the judge of credibility and could have found St. Julien=s testimony lacked credibility.

The reporter=s record from the writ hearing shows the trial judge noted he had originally agreed to decide the writ application based on affidavits, but agreed to hold the hearing because of a need expressed by St. Julien to supplement her affidavit.  St. Julien recalled telling Avant=s attorney that Avant was not being charged with aggravated assault because there were self-defense issues in the case.  St. Julien also recalled the written notation she had made on the file that aggravated assault was declined.  The State then asked St. Julien if she conveyed to Avant or his attorney the aggravated assault charges would not be revisited or filed, to which St. Julien answered, ANo.@  After this testimony, the judge stated he wanted to hear this testimony because it reflected a change in her testimony.  The judge noted that St. Julien now recalled there was a discussion of the facts of the case. 

Based on the documents and testimony, the trial judge could have found the State had considered and declined to pursue aggravated assault charges, the State discussed this with Avant and his attorney, and then entered into a plea agreement on the reduced charge of disorderly conduct.  We find no abuse of discretion by the trial court.  Even if the specific promise not to pursue aggravated assault charges was not put in writing, it reasonably followed from St. Julien=s statements at the time of the plea.  Because the trial court=s ruling may be upheld on this ground, we need not address the State=s first argument concerning lesser-included offenses.

Because it is jurisdictional, however, we do address the State=s claim that the plea agreement is void.  The State reasons that the plea agreement is void because Class C disorderly conduct is not a lesser-included offense of either aggravated assault or unlawfully  carrying a weapon.  The State cites to McLeod v. State, 56 S.W.3d 704 (Tex. App.BHouston [14th Dist.] 2001, no pet.), and Cunningham v. State, 726 S.W.2d 151 (Tex. Crim. App. 1987), for the proposition that a trial court has jurisdiction to convict a defendant of an offense not charged only if that offense is a lesser-included offense of the charged offense.  However, the Court of Criminal Appeals recently disavowed this law.^[1]  The high court recently held that  Asubject  matter jurisdiction requires both a general grant of authority to the trial court and a charging instrument that invokes that jurisdiction over the particular case.@  Trejo v. State, 280 S.W.3d 258, 260 (Tex. Crim. App. 2009).  There must be a valid indictment to invoke the trial court=s subject matter jurisdiction.  In this case, the indictment charged appellant with aggravated assault.  Once jurisdiction has attached, the court retains it until final disposition.  Id. at 261.  Although the trial court may err in its ruling, it has jurisdiction to commit the error.  Id.^[2]  Thus, under Trejo, the trial court in this case had jurisdiction.  The plea agreement, therefore, is not void for lack of jurisdiction.

We affirm the trial court=s order.

PER CURIAM

Panel consists of Chief Justice Hedges, and Justices Yates and Frost.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]    The Court of Criminal Appeals expressly disapproved of parts of Cunninham in Hall v. State, 247 S.W.3d 524 (Tex. Crim. App. 2007), but this did not concern jurisdiction. 

^[2]  In Trejo, the appellant claimed the trial court had no jurisdiction to convict him of aggravated assault because it was not a lesser-included offense of the charged offense.  280 S.W.3d at 259.  The court found that the trial court did have jurisdiction, but remanded to the court of appeals for a harm analysis.  Id. at 260.