Full Opinion (html_with_citations)

Affirmed and Majority and Dissenting Opinions filed December 14, 2023.




                                        In The

                      Fourteenth Court of Appeals

                                NO. 14-20-00496-CR

                       THE STATE OF TEXAS, Appellant

                                           V.
                    SANITHA LASHAY HATTER, Appellee

                     On Appeal from the 230th District Court
                             Harris County, Texas
                         Trial Court Cause No. 1667833


                     DISSENTING OPINION

      In a motion for specific performance, appellee Sanitha Lashay Hatter asked
the trial court to enforce a prosecutor’s promise to dismiss a felony case and not re-
file it. Appellee argued that the prosecutor’s unilateral promise was an enforceable
contract. The trial court granted the motion. On appeal, a majority of this panel
upheld the ruling but for a different reason, namely that the prosecutor’s promise
constituted an immunity agreement.1 I dissented. I and, on further appeal, the Court

      1
        State v. Hatter,
634 S.W.3d 456
 (Tex. App.—Houston [14th Dist.] 2021), rev’d,
665 S.W.3d 584
 (Tex. Crim. App. 2023).
of Criminal Appeals, concluded that the prosecutor’s promise was not an immunity
agreement. The case returns to us with a directive to determine whether the trial
court’s order is correct under any other applicable legal theory, including whether
there was an enforceable plea bargain agreement, and, if so, its terms, whether it was
breached, and whether appellee is entitled to specific performance.2

       A first-tier appellate court should reject an appellant’s claim of reversible
error on direct appeal so long as the trial court ruled correctly based on any theory
of law applicable to the case, even if the court did not purport to rely on that theory.3
This principle typically does not require the prevailing party to have explicitly raised
the alternate theory in the trial court, but we will not rely on this rule to affirm unless
the record is sufficiently well-developed to support a correct ruling under the
alternate theory.4

       My colleagues in the majority conclude that the trial court’s order is
sustainable on the theory that appellee and the State formed a binding plea bargain
agreement, an argument not raised in appellee’s motion.5 I again disagree. Citing


       2
           See Hatter, 665 S.W.3d at 595.
       3
          See, e.g., id. at 586 (citing Romero v. State,
800 S.W.2d 539, 543
 (Tex. Crim. App. 1990));
State v. Esparza,
413 S.W.3d 81, 85
 (Tex. Crim. App. 2013).
       4
         See Hatter, 665 S.W.3d at 594 (no record support for immunity agreement alternate
theory); Esparza,
413 S.W.3d at 85
 & n.17; see also Martin v. State,
620 S.W.3d 749
, 759 (Tex.
Crim. App. 2021) (alternate theory must be reasonably supported in record); State v. Ruiz,
581 S.W.3d 782
, 785 (Tex. Crim. App. 2019); Carrasco v. State,
154 S.W.3d 127, 129
 (Tex. Crim.
App. 2005).
       5
         Neither the panel majority nor the Court of Criminal Appeals has addressed the only
argument appellee raised in her motion for specific performance: the prosecutor’s unilateral
promise was enforceable. For the reasons I stated previously, I believe appellee’s unilateral
promise theory has no merit and that the trial court could not have, under these circumstances,
granted the motion based on this theory. Hatter, 634 S.W.3d at 466-70. While I sympathize and
agree with appellee’s point that prosecutors should be held to their words, the prosecutor’s
statement that he had no intention to re-file the felony case simply is not an assurance on which
appellee could rely for purposes of enforcing the statement, given the circumstances.

                                                 2
the motion for specific performance, the majority asserts that “the parties reached an
agreement pursuant to which [appellee’s] felony assault charge would be dismissed
in exchange for her guilty plea to the DWI charges.” According to the majority,
“Appellee included an affidavit from her defense counsel reiterating this agreement
between Appellee and the State.” The terms of the agreement, the majority asserts,
were “clearly delineated: in exchange for the dismissal of the felony charge,
Appellee agreed to plead guilty to the two misdemeanor DWIs.” The majority
concludes that the record supports “finding” that “the trial court (1) approved the
parties’ plea agreement as it was described by Appellee’s defense counsel and
O’Donnell, and (2) ordered specific performance of that agreement.” Because, in
the majority’s view, the evidence showed that the State breached the agreement, the
majority holds the trial court did not abuse its discretion in granting the motion for
specific performance.

       We cannot affirm the trial court’s order on the theory of a plea bargain
agreement unless that theory has sufficient record support.6 Unfortunately, the
majority grossly overstates the record.

       A plea bargain agreement is a contract between the State and the defendant.7
We consider the record in light of general contract law principles in determining
whether a contract was formed.8 In Texas, plea bargain agreements are generally
6 Martin, 620
 S.W.3d at 759; Ruiz, 581 S.W.3d at 785; Esparza,
413 S.W.3d at 85
 & n.17;
Carrasco,
154 S.W.3d at 129
.
       7
        Thomas v. State,
516 S.W.3d 498, 501-02
 (Tex. Crim. App. 2017); Moore v. State,
295 S.W.3d 329, 331
 (Tex. Crim. App. 2009); see Ex parte Williams,
637 S.W.2d 943, 947
 (Tex. Crim.
App. 1982).
       8
        See Williams v. State,
502 S.W.3d 168, 170-71
 (Tex. Crim. App. 2016); Ex parte
Moussazadeh,
64 S.W.3d 404, 411
 (Tex. Crim. App. 2001); Jenkins v. State,
495 S.W.3d 347, 350
(Tex. App.—Houston [14th Dist.] 2016, no pet.).

                                              3
contemplated to be bilateral contracts.9 A bilateral contract is one where each party
makes non-illusory mutual promises.10

       The majority errs in concluding that the record includes evidence of all
required contract elements and that the State is bound by any bilateral contractual
obligation. At a minimum, the acceptance of an offer and mutual consent elements
are lacking here. In other words, there is no evidence of mutual promises or an
exchange of any kind. The majority’s contrary conclusion is grounded on no trial
court finding, no evidence, and no reasonable inference from the evidence.

       Even a cursory review of the record supports my position. Without question,
the State extended a plea offer to appellee, and the offer’s terms are clear: the State
would dismiss the felony charge of assaulting a peace officer in exchange for
appellee pleading guilty to the DWI charges. Importantly, however, there exists no
evidence that appellee ever accepted the offer, promised to plead guilty to either
misdemeanor charge, or in fact pleaded guilty to any charge. In her declaration,
appellee’s felony defense counsel averred that the State extended the offer; but she
was careful to avoid stating that appellee accepted the offer or made any promises.
In fact, counsel stressed that appellee’s attorney in the misdemeanor case refused to
agree to have appellee plead guilty to the DWI charges. The reason the felony
defense attorney believed appellee was being treated “unfairly” was because
appellee’s misdemeanor attorney was unwilling to plead guilty to the DWI charges.
Additionally, she said the prosecutor promised to dismiss the felony case “regardless

       9
         See Ramirez v. State,
89 S.W.3d 222, 226
 (Tex. App.—Corpus Christi 2002, no pet.) (plea
bargain agreement is a bilateral, not unilateral, contract); Ortiz v. State,
885 S.W.2d 271, 273
 (Tex.
App.—Corpus Christi 1994), aff’d,
933 S.W.2d 102
 (Tex. Crim. App. 1996) (“A plea bargain
consists of three parts: a plea of guilty, the consideration for it, and the approval by the court of
the agreement.”).
       10
          See City of Houston v. Williams,
353 S.W.3d 128, 135
 (Tex. 2011); Restatement of
Contracts § 12 (1932).

                                                  4
of the misdemeanor dispositions”—which indicates that appellee had not promised
to plead guilty to the DWI charges and it did not matter whether she ever did. While
counsel’s declaration mentions an “agreement,” counsel was clearly referring to the
prosecutor’s promises—and only the prosecutor’s promises—as the “agreement.”
Accordingly, what the majority opinion erroneously characterizes as the parties’ plea
agreement is really only the State’s plea offer. Counsel’s declaration contains no
assertion or evidence that appellee ever accepted the offer, consented to the terms,
or made any mutual promise.

      Nor does the evidence introduced at the motion for specific performance
hearing establish the existence of a plea bargain agreement under contract principles.
Much the contrary. The prosecutor testified that the plea offer remained on the table
“throughout the pendency of the case,” meaning that the offer had not been accepted.
He was “under the impression” that appellee would eventually plead guilty to the
DWI charges and thereby “effectively satisfy” the offer terms that had been
extended. But that never happened. Further, the State’s motion to dismiss the felony
case, which was introduced into evidence, did not assert that the State sought to
dismiss the case in accordance with a plea bargain agreement nor did it seek approval
of any agreement. Appellee’s counsel did not assert or present evidence that
appellee had made any agreement or promise; she contended only that the
prosecutor’s promise was enforceable without any obligation, exchange, or
undertaking on appellee’s part. At the hearing’s conclusion, the trial court judge did
not find that a plea agreement existed; in fact, he said that he was granting the motion
because it “is the honoring of the promise,” which the court was “not sure is a
contract. I’m not sure that contract law is something we hear in here.” How is it the
majority can reasonably construe these statements as an implicit finding that a



                                           5
contract was formed? Even if the court had implicitly found the parties reached a
plea agreement, the record evidence plainly does not support such a finding.

      Also of note are appellee’s irreconcilably inconsistent positions on this topic.
Appellee did not assert that a plea bargain agreement existed until she filed a
supplemental brief in our court after remand from the Court of Criminal Appeals.
Her new position is flatly contrary to her prior positions in the trial court and in this
court. For example, in her motion for specific performance, she did not assert that a
promise by appellee to plead guilty to the DWI charges was a part of any agreement.
Rather, according to appellee, she was told that the State would dismiss and not re-
file the felony case even if she did not plead to the DWI charges. In her motion and
accompanying brief, appellee repeatedly requested the trial court to enforce the
prosecutor’s “promise.” According to appellee, the prosecutor’s statements alone
constituted the “contract.” Significantly, far from relying on any purported plea
bargain agreement, she urged directly that this case did not involve “a promise of a
plea bargain.” (Emphasis added). Later, in appellee’s first brief filed in our court,
she again characterized her motion for specific performance as seeking to enforce
the State’s “promise of dismissal.” Not once did she suggest that she and the
prosecutor had in fact formed an enforceable plea bargain agreement.

      The majority claims that appellee accepted the prosecutor’s plea offer and
cites the prosecutor’s testimony that he was under the impression that appellee would
eventually plead guilty to the DWI charges. Notably, the majority does not explain
with record references how appellee supposedly accepted the plea offer—by promise
or performance.      The prosecutor cannot accept for her, and his subjective
expectation—hope, even—that she would eventually accept by pleading guilty
cannot support the existence of a completed bilateral contract consisting of mutual
non-illusory promises. It is undisputed that the record contains no evidence that

                                           6
appellee ever promised or agreed to plead to the DWI charges. The record is firmly
to the contrary because her misdemeanor counsel was unwilling to plead guilty to
them.

        Like any contract, a plea bargain agreement between the State and a criminal
defendant requires more than an offer by one party; it requires mutual acceptance of,
and consent to, the essential terms. Those elements are absent here. If appellee
desired to rely on a plea bargain agreement to support her request for specific
performance, she had the burden to prove it by showing the existence and breach of
an enforceable plea agreement. She failed to support her motion with evidence of
an agreement and in fact argued against the existence of a plea bargain. Having
failed to satisfy her burden, the trial court could not have properly granted her motion
on this alternative legal theory.11

        The trial court’s order is unsupportable on a plea bargain agreement theory
for other reasons as well. Plea bargain agreements are unlike ordinary contracts in
at least one important way. Even if the State and a defendant agree on material
terms, no binding obligations exist on either party unless and until the court approves
the proposed agreement.12 And the approval or rejection must take place in open
court.13 “The ‘contract’ does not become operative until the court announces it will




        11
             See Esparza,
413 S.W.3d at 88
.
        12
           See Absolon v. State,
460 S.W.3d 158, 162
 (Tex. Crim. App. 2015); Moore,
295 S.W.3d at 331
; Bitterman v. State,
180 S.W.3d 139, 142
 (Tex. Crim. App. 2005); Ortiz v. State,
933 S.W.2d 102, 104
 (Tex. Crim. App. 1996).
        13
          See Moore,
295 S.W.3d at 332
 (citing Tex. Code Crim. Proc. art. 26.13(a)(2) (“[T]he
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.”)).

                                                 7
be bound by the plea bargain agreement.”14 The Court of Criminal Appeals has
therefore stated that the trial court is a “necessary” party to the contract.15

      The majority’s willingness to recognize some kind of implied approval of a
plea agreement—like its antecedent holding that an agreement exists—finds support
in neither evidence nor law. There is absolutely no indication in this record that any
purported plea bargain agreement was proffered to the trial court, much less
approved. No testimony at the hearing indicated that the trial court was told that
appellee had agreed or promised to plead guilty to the DWI charges (or that she had
already done so). Accordingly, the court did not announce, and could not have
announced, that it approved any such agreement and would dismiss the felony
charges at the State’s request in accordance with any plea agreement. The court’s
statements rather demonstrate that the court’s ruling was intended to enforce the
prosecutor’s promise alone; the court said nothing about whether appellee had
promised to plead guilty to other charges in exchange for the felony dismissal. Nor
could we reasonably infer court approval of a plea bargain agreement given the state
of the record and the trial court’s statements quoted above, even if the code did not
require court approval of a plea bargain agreement to be announced in open court.16
Appellee has no contractual right to demand specific enforcement of a purported
agreement that has never been “entered into” or become operative.17

      I will revisit one additional point given the majority’s re-framing of the issue
on remand as whether “a promise of dismissal constitutes an enforceable plea
bargain agreement.” To the extent my colleagues intend to suggest that a binding


      14
           Ex parte Williams,
637 S.W.2d at 947
.
      15
           Ortiz,
933 S.W.2d at 104
.
      16
           See Tex. Code Crim. Proc. art. 26.13(a)(2).
      17
           See Ex parte Williams,
637 S.W.2d at 943
.

                                                 8
plea bargain agreement exists under unilateral contract principles, they are incorrect.
As I mentioned, Texas courts have characterized plea bargain agreements as bilateral
in nature. Presuming that a binding plea bargain agreement also may be created
under unilateral contract law in Texas, no enforceable obligation was created here.

      Texas continues to recognize unilateral contract principles as part of state
common law.18 A unilateral contract is created “when a promisor promises a benefit
if a promisee performs.”19 As the supreme court has explained, “[t]he requirement
of mutuality is not met by an exchange of promises; rather, the valuable
consideration contemplated in ‘exchange for the promise is something other than a
promise,’ i.e., performance.”20 There is only one promisor, and the promisee accepts
and gives consideration by performance.21 A promisor’s promise in a unilateral
contract setting does not become enforceable until the promisee performs.22 When
the promisee delivers the bargained-for performance, the promisor then becomes
bound to provide the promised benefit.23 Unless the promisee performs the act or
acts requested by the promisor, there is no binding unilateral contract.24

      The record shows irrefutably that appellee never pleaded guilty to either DWI
charge. Thus, there is no evidence that appellee ever performed. There being no
performance—hence no acceptance and no consideration—no unilateral contract
was created. In dicta—and tacitly acknowledging that appellee did not perform—


      18
           City of Houston,
353 S.W.3d at 136
.
      19
Id. at 135-36
; Vanegas v. Am. Energy Servs.,
302 S.W.3d 299, 303
 (Tex. 2009).
      20
           City of Houston,
353 S.W.3d at 136
 (citing Restatement of Contracts § 12 cmt. a (1932)).
      21
           See id.; 1 Richard A. Lord, Williston on Contracts §§ 1.17, 1:18 (4th ed. 2007)
(hereinafter, “Williston”).
      22
           City of Houston,
353 S.W.3d at 136
; Vanegas,
302 S.W.3d at 303
; Williston, § 1:18.
      23
           Dodson v. Stevens Transp.,
776 S.W.2d 800, 805
 (Tex. App.—Dallas 1989, no writ).
      24
           Sunshine v. Manos,
496 S.W.2d 195, 198
 (Tex. App.—Tyler 1973, writ ref’d n.r.e.).

                                                 9
the majority contends that the State prevented appellee from “fulfilling her
contractual obligation” because it dismissed the DWI cases, which made
performance “impossible.” Though stating that performance was impossible, the
majority inconsistently asserts that dismissal of the DWI charges “fulfilled” a
“condition” of the agreement. The majority’s point is unclear, given that on the one
hand the majority has concluded, based on O’Donnell’s testimony, that appellee
“accepted;” but now on the other, the majority has deemed acceptance “impossible.”

       In any event, I agree that acceptance became impossible once the State
dismissed the DWI charges. Contrary to the majority’s view, however, that event
did not complete a contractual bargain; rather, it terminated the outstanding plea
offer. Termination of an offer for a unilateral contract occurs when the thing
required for performance is destroyed before acceptance.25 In the unilateral contract
setting, moreover, it is irrelevant that the State dismissed the DWI charges because
only the State may offer a plea bargain, and it is free to withdraw or terminate the
offer any time before the promisee performs and before court approval.26 Once the
DWI charges were dismissed, the outstanding plea offer necessarily was terminated
and off the table.27 The majority errs in relying on inapplicable cases involving


       25
          See Restatement of Contracts §§ 35 (offer may be terminated by destruction of thing
essential for performance), 49 (“Where a proposed contract requires for its performance the
existence of a specific person or thing, and before acceptance the person dies or the thing is
destroyed, the offer is terminated unless the offeror assumes the risk of such mischance.”).
       26
          See Absolon,
460 S.W.3d at 162
; Moore,
295 S.W.3d at 331-32
; Sunshine v,
496 S.W.2d at 198
; see also Vanegas,
302 S.W.3d at 303
 (offer for unilateral contract may be withdrawn any
time before performance).
       27
          See Angel v. Tauch,
642 S.W.3d 481
, 489 (Tex. 2022) (recognizing indirect termination
of an offer when offeree receives reliable information that offeror has taken definite action
inconsistent with an intention to enter into the proposed contract); Restatement of Contracts § 35
(revocation by offeror will terminate offer). The record demonstrates that appellee knew the DWI
cases had been dismissed; therefore, at a minimum, an implied termination of the offer is effective.
See Tauch, 642 S.W.3d at 489.

                                                10
whether a party to an executed contract performs a condition stated in the contract
to the other party’s satisfaction.

       Some courts outside Texas have applied unilateral contract principles to
determine whether an enforceable plea bargain agreement was created. 28 Diaz-
Colon provides one illustrative and compelling example similar to the present facts
and supportive of my position.29 There, the government submitted a proposed plea
agreement to the court, which stated that the parties had reached an agreement with
regard to the defendant’s guilty plea. But the proposed plea agreement was signed
only by the government’s attorneys. The plea agreement did not contain bilateral
promises or an explicit promise by the defendant Diaz to do anything—thus, the
court construed it as an offer by the government for a unilateral contract. Before
court approval, the government sought to withdraw its offer based on new evidence.
The defendant objected to the government’s withdrawal and requested specific
performance of the plea agreement. The court held that no enforceable unilateral
contract had been created because the defendant had not performed. “[U]ntil the
defendant actually performs by entering his change of plea and the Court accepts
such plea, either party, including the government, is free to withdraw from the plea
agreement.”30 The court rejected a contention almost identical to appellee’s theory
asserted in her motion for specific performance in the trial court: “the mere fact that



       28
           E.g., United States v. Papaleo,
853 F.2d 16, 19
 (1st Cir. 1988); Gov’t of the V.I. v.
Scotland,
614 F.2d 360, 364
 (3d Cir. 1980); United States v. Diaz-Colon,
794 F. Supp. 2d 353
 (D.
Puerto Rico 2011); State v. Collins,
265 S.E.2d 172, 176
 (N.C. 1980); see also Shields v. State,
374 A.2d 816, 820
 (Del. 1977) (“We hold that the State may withdraw from a plea bargain
agreement at any time prior to, but not after, the actual entry of the guilty plea by the defendant or
other action by him constituting detrimental reliance.”); accord State v. Dillon,
398 N.W.2d 718, 720
 (Neb. 1987) (same).
       29
            Diaz-Colon,
794 F. Supp. 2d at 354
.
       30
Id. at 354
.

                                                  11
the parties were in negotiations of a plea agreement, without actual performance by
defendant, does not create a ‘constitutional right to have that bargain enforced.’”31

      The trial court’s ruling is not supportable on the theory that an enforceable
plea bargain agreement existed and was approved by the court. This court should
reverse the trial court’s order and remand the case. Because the majority fails to do
so, I respectfully dissent.


                                               /s/      Kevin Jewell
                                                        Justice

Panel consists of Justices Jewell, Bourliot, and Hassan (Hassan, J., majority).
Publish — Tex. R. App. P. 47.2(b).




      31
Id.
 (citing Papaleo,
853 F.2d at 19
).

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