Ortiz v. State

933 S.W.2d 102, 1996 Tex. Crim. App. LEXIS 196, 1996 WL 540108

• Court: Court of Criminal Appeals of Texas
• Decided: September 25, 1996
• Docket: 002-95
• Status: Published

Opinions

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

KELLER, Judge.

The issues presented in this case are whether the Court of Appeals correctly held that jeopardy attaches in a guilty plea proceeding when the trial court accepts the plea agreement and whether the Court of Appeals correctly found that the trial court had not accepted the plea agreement when it accepted the guilty plea.

Appellant was indicted for aggravated robbery. On July 28, 1989, in accord with a plea agreement, Appellant pled guilty to the lesser included offense of robbery with no agreement as to punishment. The trial court “accept[ed]” the guilty plea, admonished Appellant under Article 26.13, V.A.C.C.P., and stated, “The Court is hereby going to accept it. Now, I’m not going to be making any decisions today. I’m going to be deferring findings and ordering a pre-sen-tence investigation report and schedule this matter for further hearing_”

On September 1,1989, Appellant appeared before the trial judge who stated that he had previously accepted the plea, made no findings, and ordered a pre-sentence investigation report. He inquired whether Appellant and his attorney had been provided with the report and permitted Appellant to present argument. Then the judge stated:

In reviewing all the facts, the pre-sen-tence investigation reports that were given to me on each respective defendant, I quite frankly, at this time am going to announce to all of you that I cannot in good conscience accept the recommendations that have been made.

The judge continued:

[T]he Court cannot in good conscience enter any findings to the lesser included offense.

So I am going to instruct the respective attorneys to withdraw the pleas of guilty in behalf of their clients and set this matter for trial. And if you don’t, I will enter it in your behalf.

Appellant’s attorney requested time to confer with Appellant, after which the judge asked Appellant if his attorney was withdrawing his guilty plea with Appellant’s advice and consent. Appellant stated that he was.¹

Several weeks later Appellant pled nolo contendere to aggravated robbery and the trial court assessed punishment at confinement for fifty years. Appellant had no plea agreement. Under the original plea agreement, if Appellant had been sentenced for the lesser included offense of robbery, the maximum punishment would have been confinement for twenty years.

The Court of Appeals affirmed the conviction. Ortiz v. State, 885 S.W.2d 271 (Tex.App.-Corpus Christi 1994). We granted Appellant’s petition for discretionary review to address his contention that his conviction was barred by double jeopardy provisions of the Texas and United States Constitutions.²

ACCEPTANCE OF THE PLEA AGREEMENT

The Court of Appeals held that any plea of guilty as part of a plea agreement is tentative until the trial court approves or rejects the agreement. The court found that in the instant case the trial judge’s acceptance of the guilty plea before approval of the agreement was premature and tentative because even though the trial judge “accepted” the plea, he then stated that he would not make any decision and was going to be “deferring findings.” The Court of Appeals concluded that the trial court did not approve or reject the plea agreement at the time of Appellant’s guilty plea to robbery. Further, the trial court’s use of the term “accept the plea” was not an adjudication of Appellant’s guilt on the robbery plea.

Appellant argues that when the trial judge accepted the guilty plea to robbery, he necessarily accepted the plea agreement which consisted of Appellant’s guilty plea in return for a reduction in the offense from aggravated robbery to robbery. Article 26.13(a)(2), requires that before “accepting” a guilty plea, the trial court shall admonish the defendant of several matters, including:

(2) the fact that the recommendation of the prosecuting attorney as to punishment is not binding on the court. Provided that the court shall inquire as to the existence of any plea bargaining agreements between the state and the defendant and, in the event that such an agreement exists, the court shall inform the defendant whether it will follow or reject such agreement in open court and before any finding on the plea. Should the court reject any such agreement, the defendant shall be permitted to withdraw his plea of guilty or nolo contendere.

In the instant ease the trial judge “accepted” the guilty plea to robbery, but did not make any finding on this plea and did not accept or reject the plea agreement. The trial judge would have more accurately followed Art. 26.13 had he not stated that he accepted the plea without also making a finding on the plea agreement. Essentially, the trial judge accepted the plea conditionally while he deferred a final decision until the pre-sentence investigation was complete. He did not adjudicate guilt or accept the plea agreement. See and compare United States v. Sanchez, 609 F.2d 761 (5th Cir.1980).³

A plea agreement is a contractual arrangement. Until all of the necessary parties agree to the terms of the contract, the agreement is not binding. Art. 26.13(a)(2). Based on the record of the initial plea hearing we agree with the Court of Appeals that the trial judge never accepted the plea agreement. Therefore, the contract of the plea agreement was never binding on the parties.

DOUBLE JEOPARDY

Having determined that the plea agreement was not accepted and thus did not become binding, we now address Appellant’s double jeopardy claim under both the United States and Texas Constitutions. Appellant contends jeopardy attached when he entered his guilty plea and the trial court accepted the plea. Therefore, the second plea proceeding in which Appellant pled nolo conten-dere to aggravated robbery is impermissible. The Court of Appeals held that in a negotiated plea case jeopardy attaches when the trial court accepts the plea agreement. We agree with the Court of Appeals.

The double jeopardy clause protects against a second prosecution for the same offense after acquittal or conviction; and it protects against multiple punishments for the same offense. Ohio v. Johnson, 467 U.S. 493, 104 S.Ct. 2536, 81 L.Ed.2d 425 (1984). The broad premise underlying double jeopardy protection is that the government should not be able to subject an individual to embarrassment and anxiety by repeated attempts to convict.

The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.

Green v. United States, 355 U.S. 184, 187-188, 78 S.Ct. 221, 223, 2 L.Ed.2d 199, 204 (1957).

To implement or enforce this protection courts have “define[d] a point in criminal proceedings at which the constitutional purposes and policies are implicated by resort to the concept of ‘attachment of jeopardy.’ ” Serfass v. United States, 420 U.S. 377, 388, 95 S.Ct. 1055, 1062, 43 L.Ed.2d 265, 274 (1975). In state and federal courts jeopardy attaches in a jury trial when the jury is empaneled and sworn. Crist v. Bretz, 437 U.S. 28, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978). In a bench trial in federal court jeopardy attaches when the court begins to hear evidence. Serfass, 420 U.S. at 388, 95 S.Ct. at 1062, 43 L.Ed.2d at 274. In Texas jeopardy attaches in a bench trial when the defendant pleads to the indictment. State v. Torres, 805 S.W.2d 418 (Tex.Crim.App.1991). The reason for the particular point of attachment is that the double jeopardy prohibition does not apply until a defendant is “ ‘put to trial before the trier of facts, whether the trier be a jury or a judge.’ ” Serfass, 420 U.S. at 388, 95 S.Ct. at 1062, 43 L.Ed.2d at 274.

In Crist the Supreme Court summarized the reasons for folding jeopardy attached when the jury was empaneled and sworn to be “the finality of judgments, the minimization of harassing exposure to the harrowing experience of a criminal trial, and the valued right to continue with the chosen jury.” Crist, 437 U.S. at 38, 98 S.Ct. at 2162, 57 L.Ed.2d at 33. All of these reasons support the point of jeopardy attachment as the time the defendant is put to trial, on a plea of not guilty, before the trier of facts. At that point the trial has begun before the chosen tribunal on the contested issue of the defendant’s guilt or innocence.

Consistent with this idea is the long-established rule in Texas that jeopardy attaches when the defendant pleads to the charging instrument. At that point the issue is joined for the jury to determine. Vardas v. State, 518 S.W.2d 826 (Tex.Crim.App.1975); Ochoa v. State, 492 S.W.2d 576 (Tex.Crim.App.1973); Fann v. State, 138 Tex.Crim. 580, 137 S.W.2d 1019 (1940); Steen v. State, 92 Tex.Crim. 99, 242 S.W. 1047 (1922); Yerger v. State, 41 S.W. 621 (Tex.Crim.App.1897). This rule was modified in response to Crist because the requirement of the United States Constitution mandates that in a jury trial jeopardy attaches when the jury is selected and sworn, which is earlier in time than when a defendant pleads to the charging instrument. See McElwee v. State, 589 S.W.2d 455 (Tex.Crim.App.1979). However, the rationale for jeopardy attachment in Texas is consistent with the idea that jeopardy attaches when the defendant is put to trial before the trier of fact because in Texas if a defendant did not enter a plea before the trier of fact, no issue was joined for the factfinder. Torres, 805 S.W.2d 418; McElwee, 589 S.W.2d 455; Steen, 92 Tex.Crim. 99, 242 S.W. 1047. In essence, a defendant was not “put to trial.”

The attachment of jeopardy in a negotiated guilty plea taken before the court, although a type of bench trial, does not implicate the same constitutional policy considerations for the double jeopardy prohibition present in bench trials or jury trials in which guilt is contested. A defendant who has a plea agreement and pleads guilty before the court has no particular interest in a chosen tribunal as does a defendant who pleads not guilty and is tried in a bench or jury trial. Any interest in the finality of judgments is not violated in a guilty plea proceeding by finding jeopardy does not attach until the plea agreement is accepted because no issue is presented as binding on the parties until the trial court accepts the plea. See Art. 26.13. Whereas, in a bench trial when a defendant pleads not guilty the State is then bound to prove its case; and in a jury trial when the jury is empaneled and sworn a defendant has an interest in having that jury decide the contested issues that the State is required to prove. The State does not use its power and resources to convict a defendant on a guilty plea to the same extent it must in a contested trial since the defendant admits guilt and responsibility. There is minimal “harassing exposure to the harrowing experience of a criminal trial” because a defendant forgoes a harrowing contested trial for a guilty plea proceeding in which the parties have agreed on the outcome. Thus, a defendant who pleads guilty is not subject to the embarrassment, anxiety, and insecurity of repeated attempts to convict him since he has admitted his guilt. Therefore, the attachment of jeopardy when the plea agreement is accepted best protects jeopardy concerns because the considerations and policies underlying these concerns implement the purpose of the double jeopardy protection at this point. It is at this point that the defendant has a vested interest in the finality of the proceeding. As discussed, the issue is joined such that the defendant has been “put to trial before the trier of fact.” Furthermore, in a negotiated plea proceeding, even after a defendant pleads guilty, the issue is not joined because neither the State nor Appellant are bound by his plea until the trial court accepts the plea agreement. And, if the court does not accept the agreement, a defendant may withdraw his plea.

The federal courts are not uniform, although many circuits hold that jeopardy attaches when the guilty plea is accepted. Fransaw v. Lynaugh, 810 F.2d 518 (5th Cir.1987); United States v. Cruz, 709 F.2d 111, 113 (1st Cir.1983) (see cases cited therein). However, the cases indicate this means acceptance of the plea is also a finding of guilt and an acceptance of the plea agreement. See generally Sanchez, 609 F.2d 761; Cruz, 709 F.2d 111.

Moreover, we find the United States Supreme Court’s holding on a similar issue to be instructive. In Ricketts v. Adamson, 483 U.S. 1, 107 S.Ct. 2680, 97 L.Ed.2d 1 (1987), the defendant was indicted for first-degree murder but plead guilty to the lesser offense of second-degree murder in exchange for his testimony against two other suspects. The defendant subsequently breached the plea agreement by refusing to testify, his conviction on the lesser offense was vacated, and he was tried and convicted of first degree murder. Id. The Supreme Court held that trial on the greater offense did not violate double jeopardy. Id. The Court pointed out that both parties received substantial benefits from the plea agreement. Id. at 9, 107 S.Ct. at 2685. The Court also noted that the terms of the plea agreement waived a double jeopardy claim in the event the agreement was breached. Id. at 9-10, 107 S.Ct. at 2685-86. By recognizing such waiver, Adamson shows that the attachment of jeopardy can be made conditional upon adherence to the terms of the plea bargain. That a plea agreement can make the attachment of jeopardy conditional is itself an indication that jeopardy attaches when the agreement is accepted. If a prosecution can proceed after a plea agreement is breached, surely there is no impediment to such prosecution where the plea agreement was never accepted.

Given the purposes and policies of the prohibition against double jeopardy, we hold that, in a negotiated plea proceeding, jeopardy attaches when the trial court accepts the plea bargain.⁴ Because we have found that the trial court did not accept the plea bargain, jeopardy did not attach in the first plea proceeding. Thus, double jeopardy provisions did not bar Appellant’s subsequent plea of nolo contendere to aggravated robbery. The judgments of the trial court and the Court of Appeals are affirmed.

OVERSTREET, J., dissents.

1 . The dissent claims that the record establishes various matters regarding unfavorable publicity and petition drives to influence the trial judge. Although the attorney for appellant's co-defendant made statements to the court that would to some degree support such a conclusion, and the trial court even commented about some of the matters, the bald statement that "the record establishes" these matters overstates, we think, what actually happened. Also, we do not believe that the record supports the dissent’s statement that "The prosecutor conceded the intense publicity and community feeling” surrounding the case. And, although the trial court gave several reasons for ordering the plea withdrawn, the dissent quotes only one, and that one out of context. The dissent’s criticism of the trial court is unjustified.

Finally, even if the record did establish what the dissent claims it does, it would be utterly irrelevant to the determination of the issue in this case.

2 . The Fifth Amendment to the United States Constitution states, in pertinent part, ”[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb.”

Article I, § 14 of the Texas Constitution provides, “No person, for the same offense, shall be twice put in jeopardy of life or liberty, nor shall a person be again put upon trial for the same offense, after a verdict of not guilty in a court of competent jurisdiction.”

3 . The dissent concludes that a "common-sense” reading of the record supports a finding that the trial judge necessarily accepted the plea agreement when he "accepted” the guilty plea. The dissent derives this conclusion in part from the language of Article 26.13(a)(2). That provision notwithstanding, we believe the facts in the record show otherwise, as explained in the body of this opinion and in the Court of Appeals’ opinion. Moreover, whether the trial judge accepted the plea agreement when he "accepted" the guilty plea is largely a matter of factual interpretation of the record. Such factual interpretation is predominantly the domain of the Court of Appeals. Arcila v. State, 834 S.W.2d 357, 360 (Tex.Crim.App.1992). The dissent’s conclusion that the Court of Appeals erred in holding that the trial judge did not in fact accept the plea agreement is really a complaint that the Court of Appeals "somehow managed to get it wrong.” Id. at 361. Finally, the dissent’s reliance upon Perkins v. Court of Appeals, 738 S.W.2d 276 (Tex.Crim.App.1987) is misplaced. In Perkins, the plea agreement called for a "cap” of twenty-five years. Id. at 279. The trial judge expressly accepted that plea agreement, and the Court of Appeals so found. Id. at 279 & 282. As the dissent concedes, there was no express acceptance of the plea agreement in the present case. At least one other Court of Appeals has distinguished Perkins on the basis that a trial court's "acceptance of the plea” did not constitute acceptance of the plea agreement. Mayfield v. Giblin, 795 S.W.2d 852 (Tex.App.-Beaumont 1990), disapproved on other grounds by, Papillion v. State, 908 S.W.2d 621, 624 (Tex.App.-Beaumont 1995).

4 . The dissent’s reliance on State v. Torres, 805 S.W.2d 418 (Tex.Crim.App.1991) is misplaced. Torres involved a plea of not guilty and trial to the court. Id. at 419. That situation does not embody the same interests found in a plea agreement scenario. While Perkins is a case involving the same interests, Perkins applies only where the trial judge has accepted the plea agreement. 738 S.W.2d at 283-284. Because the trial judge did not accept the plea agreement, Perkins does not apply to the present case.