ACCEPTED 06-12-00197-CR SIXTH COURT OF APPEALS TEXARKANA, TEXAS 2/3/2015 5:14:28 PM DEBBIE AUTREY CLERK
No. ___________
IN THE COURT OF APPEALS, SIXTH DISTRICT FILED IN 6th COURT OF APPEALS TEXARKANA, TEXAS TEXARKANA, TEXAS 2/4/2015 8:39:00 AM DEBBIE AUTREY --------------------------------------------- Clerk
Duffey v. State, 428 S.W.3d 319 (Tex.App.-Texarkana 2014) NO. 06-12-00197-CR Court of Appeals
No. 1222696 the 8th District Court Hopkins County, Texas
---------------------------------------------
In Re: ROY DEAN DUFFEY,
Relator
STATE’S RESPONSE TO PETITION FOR WRIT OF MANDAMUS
to the 8th Judicial District Court of Hopkins County, Texas
FOR THE STATE
Peter I. Morgan Assistant District Attorney 8th Judicial District SBN 14451700 P.O. Box 882 Sulphur Springs, Texas 75483 (903) 885-0641 (903) 885-0640 fax Contents TABLE OF AUTHORITIES .......................................................................................................... 3 SUMMARY OF ARGUMENT ...................................................................................................... 4 ARGUMENT .................................................................................................................................. 4 PRAYER ............................................................................................................................................ 8 CERTIFICATE OF SERVICE ................................................................................................................. 8 CERTIFICATE OF COMPLIANCE ........................................................................................................ 9
2 TABLE OF AUTHORITIES
Cases
Duffey v. State, 428 S.W.3d 319 (Tex.App.-Texarkana 2014) ....................................................... 3 In Re State ex rel. Gary D. Young, County and District Attorney of Lamar County, Texas, Relator v. The Sixth Judicial District Court of Appeals at Texarkana, Respondent 236 S.W.3d 207 (Tex.Crim.App. 2007)......................................................................................................... 5 Perkins v. Court of Appeals for Third Supreme Judicial District of Texas at Austin, 738 S.W.2d 276 at 285 Tex Crim App 1987 .................................................................................................. 3
3 SUMMARY OF ARGUMENT Relator has filed a petition for a writ of mandamus and presented three arguments urging this court to issue a writ of mandamus in order to enforce a plea bargain agreement reached on July 3, 2012 between the State and Relator Roy Dean Duffey. The sole issue for consideration is whether or not mandamus should issue to enforce the plea bargain agreement. Relator argues that the agreement is enforceable and the State contends that the agreement was not final and therefore is not enforceable.
ARGUMENT Mandamus is only proper if the Relator establishes, 1) the act
sought to be compelled is ministerial, and 2) there is no other adequate
remedy at law. A trial court has a “ministerial, mandatory, and non-
discretionary duty” to follow a plea bargain agreement once it has been
approved by the court. However, an agreement is only final after the
judge accepts the agreement and enters a finding of guilt. Perkins v.
Court of Appeals for Third Supreme Judicial District of Texas at Austin,
738 S.W.2d 276 at 285 Tex Crim App 1987.
4 The trial court heard an announcement of a plea agreement on July
3, 2012, the day scheduled for jury selection in Mr. Duffey’s case.
Relator, quoting Joe Jamail in the reknowned Pennzoil case, is now
arguing that “a deal is a deal” and therefore the plea agreement is
enforceable by mandamus. While not disputing the sentiment that “a
deal is a deal”, it is worth noting that a deal is only “a deal” after the
deal is final. In the case of a plea bargain, that means the plea is accepted
by the court and there is an entry of a finding of guilt. Perkins at 283.
The record of that proceeding is before this court and previously
considered on direct appeal in Relator’s case styled Duffey v. State, 428
S.W.3d 319 (Tex.App.-Texarkana 2014). The case was reversed and
remanded for a new trial. The opinion explicitly uses the phrase “new
trial” and in no way orders specific enforcement of the original
agreement of July 3, 2012. The agreement is also referred to as “the as
yet unapproved plea agreement.” Id at 327. On previous consideration of
the July 3 hearing, this Court stated:
[T]he trial judge reviewed the details of the plea agreement with Duffey and the State, accepted Duffey’s plea, 5 and (by the judge’s statements) gave every indication to all in attendance that he would accept the plea agreement announced at a subsequent sentencing hearing, which was set to occur just a few days later. Id at 326. This statement accurately reflects the circumstances of the July 3 plea
hearing. In particular, the trial court’s explicit statements regarding the
need to finalize the agreement at a subsequent hearing is clear proof that
the plea was not yet accepted by the court. At that stage of the
proceedings, after the July 3 hearing, the agreement was not final, and
therefore not ministerial, mandatory, and non-discretionary as required
for mandamus to issue.
Relator presents two separate issues regarding 1)whether or not the
State should benefit from the alleged failure by the District Attorney in
failing to inform the victim’s family of the plea bargain agreement
before the hearing on July 3, 2012 and 2) whether or not it could be
proper for a trial judge to reject a plea agreement because the victim’s
family has not been notified. Understanding that these equitable
arguments can certainly be made in good faith to the trial court in terms
6 of a proper punishment, these arguments do nothing to transform a
judicial act into a ministerial act.
The standard for mandamus relief has been discussed by the Texas
Court of Criminal Appeals and while civil contract principles may
provide some guidance, civil law fails to recognize the due process
component in a criminal proceeding that can trigger a finding of a
ministerial duty. See In Re State ex rel. Gary D. Young, County and
District Attorney of Lamar County, Texas, Relator v. The Sixth Judicial
District Court of Appeals at Texarkana, Respondent 236 S.W.3d 207
(Tex.Crim.App. 2007) The Court of Criminal Appeals held
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ACCEPTED 06-12-00197-CR SIXTH COURT OF APPEALS TEXARKANA, TEXAS 2/3/2015 5:14:28 PM DEBBIE AUTREY CLERK
No. ___________
IN THE COURT OF APPEALS, SIXTH DISTRICT FILED IN 6th COURT OF APPEALS TEXARKANA, TEXAS TEXARKANA, TEXAS 2/4/2015 8:39:00 AM DEBBIE AUTREY --------------------------------------------- Clerk
Duffey v. State, 428 S.W.3d 319 (Tex.App.-Texarkana 2014) NO. 06-12-00197-CR Court of Appeals
No. 1222696 the 8th District Court Hopkins County, Texas
---------------------------------------------
In Re: ROY DEAN DUFFEY,
Relator
STATE’S RESPONSE TO PETITION FOR WRIT OF MANDAMUS
to the 8th Judicial District Court of Hopkins County, Texas
FOR THE STATE
Peter I. Morgan Assistant District Attorney 8th Judicial District SBN 14451700 P.O. Box 882 Sulphur Springs, Texas 75483 (903) 885-0641 (903) 885-0640 fax Contents TABLE OF AUTHORITIES .......................................................................................................... 3 SUMMARY OF ARGUMENT ...................................................................................................... 4 ARGUMENT .................................................................................................................................. 4 PRAYER ............................................................................................................................................ 8 CERTIFICATE OF SERVICE ................................................................................................................. 8 CERTIFICATE OF COMPLIANCE ........................................................................................................ 9
2 TABLE OF AUTHORITIES
Cases
Duffey v. State, 428 S.W.3d 319 (Tex.App.-Texarkana 2014) ....................................................... 3 In Re State ex rel. Gary D. Young, County and District Attorney of Lamar County, Texas, Relator v. The Sixth Judicial District Court of Appeals at Texarkana, Respondent 236 S.W.3d 207 (Tex.Crim.App. 2007)......................................................................................................... 5 Perkins v. Court of Appeals for Third Supreme Judicial District of Texas at Austin, 738 S.W.2d 276 at 285 Tex Crim App 1987 .................................................................................................. 3
3 SUMMARY OF ARGUMENT Relator has filed a petition for a writ of mandamus and presented three arguments urging this court to issue a writ of mandamus in order to enforce a plea bargain agreement reached on July 3, 2012 between the State and Relator Roy Dean Duffey. The sole issue for consideration is whether or not mandamus should issue to enforce the plea bargain agreement. Relator argues that the agreement is enforceable and the State contends that the agreement was not final and therefore is not enforceable.
ARGUMENT Mandamus is only proper if the Relator establishes, 1) the act
sought to be compelled is ministerial, and 2) there is no other adequate
remedy at law. A trial court has a “ministerial, mandatory, and non-
discretionary duty” to follow a plea bargain agreement once it has been
approved by the court. However, an agreement is only final after the
judge accepts the agreement and enters a finding of guilt. Perkins v.
Court of Appeals for Third Supreme Judicial District of Texas at Austin,
738 S.W.2d 276 at 285 Tex Crim App 1987.
4 The trial court heard an announcement of a plea agreement on July
3, 2012, the day scheduled for jury selection in Mr. Duffey’s case.
Relator, quoting Joe Jamail in the reknowned Pennzoil case, is now
arguing that “a deal is a deal” and therefore the plea agreement is
enforceable by mandamus. While not disputing the sentiment that “a
deal is a deal”, it is worth noting that a deal is only “a deal” after the
deal is final. In the case of a plea bargain, that means the plea is accepted
by the court and there is an entry of a finding of guilt. Perkins at 283.
The record of that proceeding is before this court and previously
considered on direct appeal in Relator’s case styled Duffey v. State, 428
S.W.3d 319 (Tex.App.-Texarkana 2014). The case was reversed and
remanded for a new trial. The opinion explicitly uses the phrase “new
trial” and in no way orders specific enforcement of the original
agreement of July 3, 2012. The agreement is also referred to as “the as
yet unapproved plea agreement.” Id at 327. On previous consideration of
the July 3 hearing, this Court stated:
[T]he trial judge reviewed the details of the plea agreement with Duffey and the State, accepted Duffey’s plea, 5 and (by the judge’s statements) gave every indication to all in attendance that he would accept the plea agreement announced at a subsequent sentencing hearing, which was set to occur just a few days later. Id at 326. This statement accurately reflects the circumstances of the July 3 plea
hearing. In particular, the trial court’s explicit statements regarding the
need to finalize the agreement at a subsequent hearing is clear proof that
the plea was not yet accepted by the court. At that stage of the
proceedings, after the July 3 hearing, the agreement was not final, and
therefore not ministerial, mandatory, and non-discretionary as required
for mandamus to issue.
Relator presents two separate issues regarding 1)whether or not the
State should benefit from the alleged failure by the District Attorney in
failing to inform the victim’s family of the plea bargain agreement
before the hearing on July 3, 2012 and 2) whether or not it could be
proper for a trial judge to reject a plea agreement because the victim’s
family has not been notified. Understanding that these equitable
arguments can certainly be made in good faith to the trial court in terms
6 of a proper punishment, these arguments do nothing to transform a
judicial act into a ministerial act.
The standard for mandamus relief has been discussed by the Texas
Court of Criminal Appeals and while civil contract principles may
provide some guidance, civil law fails to recognize the due process
component in a criminal proceeding that can trigger a finding of a
ministerial duty. See In Re State ex rel. Gary D. Young, County and
District Attorney of Lamar County, Texas, Relator v. The Sixth Judicial
District Court of Appeals at Texarkana, Respondent 236 S.W.3d 207
(Tex.Crim.App. 2007) The Court of Criminal Appeals held
While a trial court has a ministerial duty to rule upon a motion that is properly and timely presented to it for a ruling, in general it has no ministerial duty to “rule a certain way on that motion.” …In short, it is improper to order a trial court to exercise its judicial (as opposed to its ministerial) function in a particular way unless the relator has a “clear right to the relief sought,” i.e., the law he invokes is definite, unambiguous, and unquestionably applies to the indisputable facts of the case. Id.at 210. Relator’s appellate decision on his direct appeal ordered a new trial on
remand. There was no mention of specific performance of the original 7 plea bargain. With the case in the exact procedural stance as prior to the
acts giving rise to the necessity of recusal, specific performance of the
original plea bargain could never be construed as being the definite and
unambiguous duty of the trial court. In short, a new trial was ordered,
not merely a reformation of the judgment.
Relator’s Petition For Writ of Mandamus should be denied.
PRAYER Appellee prays that Relator’s Petition For Writ of Mandamus be denied.
Respectfully submitted,
/s/ Peter Morgan
Peter Morgan
CERTIFICATE OF SERVICE I hereby certify that a true and correct electronic copy of the foregoing
Brief of Appellee has been filed with the Sixth Court of Appeals and has
been served on all all parties in interest.
/s/ Peter Morgan 8 Peter Morgan
CERTIFICATE OF COMPLIANCE Relying on the word count function in the word processing software
used to produce this document I certify that the number of words in this
brief is 1,122 words.
/s/Peter Morgan